Florida Senate - 2021                              CS for SB 368
       By the Committee on Judiciary; and Senator Baxley
       590-02870-21                                           2021368c1
    1                        A bill to be entitled                      
    2         An act relating to an elder-focused dispute resolution
    3         process; creating s. 44.407, F.S.; providing
    4         legislative findings; defining terms; authorizing the
    5         courts to appoint an eldercaring coordinator and refer
    6         certain parties and elders to eldercaring
    7         coordination; prohibiting the courts from referring
    8         certain parties to eldercaring coordination without
    9         the consent of the elder and other parties to the
   10         action; specifying the duration of eldercaring
   11         coordinator appointments; requiring the courts to
   12         conduct intermittent review hearings regarding the
   13         conclusion or extension of such appointments;
   14         providing qualifications and disqualifications for
   15         eldercaring coordinators; requiring the applicant to
   16         meet certain qualifications for background screening,
   17         unless otherwise exempt; requiring prospective
   18         eldercaring coordinators to submit fingerprints for
   19         purposes of criminal history background screening;
   20         providing for the payment and cost of fingerprint
   21         processing; providing for the removal and suspension
   22         of authority of certain eldercaring coordinators;
   23         requiring that notice of hearing on removal of a
   24         coordinator be timely served; authorizing the courts
   25         to award certain fees and costs under certain
   26         circumstances; requiring the court to appoint
   27         successor eldercaring coordinators under certain
   28         circumstances; authorizing the courts to make certain
   29         determinations based on the fees and costs of
   30         eldercaring coordination; providing that certain
   31         communications between the parties, participants, and
   32         eldercaring coordinators are confidential; providing
   33         exceptions to confidentiality; providing requirements
   34         for emergency reporting to courts under certain
   35         circumstances; providing immunity from liability for
   36         eldercaring coordinators under specified
   37         circumstances; requiring the Florida Supreme Court to
   38         establish certain minimum standards and procedures for
   39         eldercaring coordinators; providing an effective date.
   41  Be It Enacted by the Legislature of the State of Florida:
   43         Section 1. Section 44.407, Florida Statutes, is created to
   44  read:
   45         44.407Elder-focused dispute resolution process.—
   46         (1)LEGISLATIVE FINDINGS.—The Legislature finds that:
   47         (a)Denying an elder a voice in decisions regarding himself
   48  or herself may negatively affect the elder’s health and well
   49  being, as well as deprive the elder of his or her legal rights.
   50  Even if an elder is losing capacity to make major decisions for
   51  himself or herself, the elder is still entitled to the dignity
   52  of having his or her voice heard.
   53         (b)As an alternative to proceedings in court, it is in the
   54  best interest of an elder, their family members, and legally
   55  recognized decisionmakers to have access to a nonadversarial
   56  process to resolve disputes relating to an elder which focuses
   57  on the elder’s wants, needs, and best interests. Such a process
   58  will protect and preserve the elder’s exercisable rights.
   59         (c)By recognizing that every elder, including those whose
   60  capacity is being questioned, has unique needs, interests, and
   61  differing abilities, the Legislature intends for this section to
   62  promote the public welfare by establishing a unique dispute
   63  resolution option to complement and enhance, not replace, other
   64  services, such as the provision of legal information or legal
   65  representation; financial advice; individual or family therapy;
   66  medical, psychological, or psychiatric evaluation; or mediation,
   67  specifically for issues related to the care and needs of elders.
   68  The Legislature intends that this section be liberally construed
   69  to accomplish these goals.
   70         (2)DEFINITIONS.—As used in this section, the term:
   71         (a)“Action” means a proceeding in which a party sought or
   72  seeks a judgment or an order from the court to:
   73         1.Determine if someone is or is not incapacitated pursuant
   74  to s. 744.331.
   75         2.Appoint or remove a guardian.
   76         3.Undertake an investigation pursuant to s. 415.104.
   77         4.Audit an annual guardianship report.
   78         5.Review a proxy’s decision pursuant to s. 765.105.
   79         6.Appoint a guardian advocate pursuant to s. 393.12.
   80         7.Enter an injunction for the protection of an elder under
   81  s. 825.1035.
   82         8.Follow up on a complaint made to the Office of Public
   83  and Professional Guardians pursuant to s. 744.2004.
   84         9.Address advice received by the court from the clerk of
   85  the court pursuant to s. 744.368(5).
   86         10.At the discretion of the presiding judge, address other
   87  matters pending before the court which involve the care or
   88  safety of an elder or the security of an elder’s property.
   89         (b)“Elder” means a person 60 years of age or older who is
   90  alleged to be suffering from the infirmities of aging as
   91  manifested by a physical, a mental, or an emotional dysfunction
   92  to the extent that the elder’s ability to provide adequately for
   93  the protection or care of his or her own person or property is
   94  impaired.
   95         (c)“Eldercaring coordination” means an elder-focused
   96  dispute resolution process during which an eldercaring
   97  coordinator assists an elder, legally authorized decisionmakers,
   98  and others who participate by court order or by invitation of
   99  the eldercaring coordinator, in resolving disputes regarding the
  100  care and safety of an elder by:
  101         1.Facilitating more effective communication and
  102  negotiation and the development of problem-solving skills.
  103         2.Providing education about eldercare resources.
  104         3.Facilitating the creation, modification, or
  105  implementation of an eldercaring plan and reassessing it as
  106  necessary to reach a resolution of ongoing disputes concerning
  107  the care and safety of the elder.
  108         4.Making recommendations for the resolution of disputes
  109  concerning the care and safety of the elder.
  110         5.With the prior approval of the parties to an action or
  111  of the court, making limited decisions within the scope of the
  112  court’s order of referral.
  113         (d)“Eldercaring coordination communication” means an oral
  114  or a written statement or nonverbal conduct intended to make an
  115  assertion by or to an eldercaring coordinator or individuals
  116  involved in eldercaring coordination made during an eldercaring
  117  coordination activity, or before the activity if made in
  118  furtherance of eldercaring coordination. The term does not
  119  include statements made during eldercaring coordination which
  120  involve the commission of a crime, the intent to commit a crime,
  121  or ongoing abuse, exploitation, or neglect of a child or
  122  vulnerable adult.
  123         (e)“Eldercaring coordinator” means an impartial third
  124  person who is appointed by the court or designated by the
  125  parties and who meets the requirements of subsection (5). The
  126  role of the eldercaring coordinator is to assist parties through
  127  eldercaring coordination in a manner that respects the elder’s
  128  need for autonomy and safety.
  129         (f)“Eldercaring plan” means a continually reassessed plan
  130  for the items, tasks, or responsibilities needed to provide for
  131  the care and safety of an elder which is modified throughout
  132  eldercaring coordination to meet the changing needs of the elder
  133  and which takes into consideration the preferences and wishes of
  134  the elder. The plan is not a legally enforceable document, but
  135  is meant for use by the parties and participants.
  136         (g)“Good cause” means a finding that the eldercaring
  137  coordinator:
  138         1.Is not fulfilling the duties and obligations of the
  139  position;
  140         2.Has failed to comply with any order of the court, unless
  141  the order has been superseded on appeal;
  142         3.Has conflicting or adverse interests that affect his or
  143  her impartiality;
  144         4.Has engaged in circumstances that compromise the
  145  integrity of eldercaring coordination; or
  146         5.Has had a disqualifying event occur.
  148  The term does not include a party’s disagreement with the
  149  eldercaring coordinator’s methods or procedures.
  150         (h)“Legally authorized decisionmaker” means an individual
  151  designated, either by the elder or by the court, pursuant to
  152  chapter 709, chapter 744, chapter 747, or chapter 765 who has
  153  the authority to make specific decisions on behalf of the elder
  154  who is the subject of an action.
  155         (i)“Participant” means an individual who joins eldercaring
  156  coordination by invitation of or with the consent of the
  157  eldercaring coordinator but who has not filed a pleading in the
  158  action from which the case was referred to eldercaring
  159  coordination.
  160         (j)“Party” includes the elder who is the subject of an
  161  action and any other individual over whom the court has
  162  jurisdiction.
  163         (3)REFERRAL.—
  164         (a)Upon agreement of the parties to the action, the
  165  court’s own motion, or the motion of a party to the action, the
  166  court may appoint an eldercaring coordinator and refer the
  167  parties to eldercaring coordination to assist in the resolution
  168  of disputes concerning the care and safety of the elder who is
  169  the subject of an action.
  170         (b)The court may not refer a party who has a history of
  171  domestic violence or exploitation of an elderly person to
  172  eldercaring coordination unless the elder and other parties in
  173  the action consent to such referral.
  174         1.The court shall offer each party an opportunity to
  175  consult with an attorney or a domestic violence advocate before
  176  accepting consent to such referral. The court shall determine
  177  whether each party has given his or her consent freely and
  178  voluntarily.
  179         2.The court shall consider whether a party has committed
  180  an act of exploitation as defined in s. 415.102(8) or s.
  181  825.103(1) or domestic violence as defined in s. 741.28 against
  182  another party or any member of another party’s family; engaged
  183  in a pattern of behaviors that exert power and control over
  184  another party and that may compromise another party’s ability to
  185  negotiate a fair result; or engaged in behavior that leads
  186  another party to have reasonable cause to believe that he or she
  187  is in imminent danger of becoming a victim of domestic violence.
  188  The court shall consider and evaluate all relevant factors,
  189  including, but not limited to, the factors specified in s.
  190  741.30(6)(b).
  191         3.If a party has a history of domestic violence or
  192  exploitation of an elderly person, the court must order
  193  safeguards to protect the safety of the participants and the
  194  elder and the elder’s property, including, but not limited to,
  195  adherence to all provisions of an injunction for protection or
  196  conditions of bail, probation, or a sentence arising from
  197  criminal proceedings.
  198         (4)COURT APPOINTMENT.—A court appointment of an
  199  eldercaring coordinator is for a term of up to 2 years and the
  200  court shall conduct review hearings intermittently to determine
  201  whether the term should be concluded or extended. Appointments
  202  conclude upon expiration of the term or upon discharge by the
  203  court, whichever occurs earlier.
  205         (a)The court shall appoint qualified eldercaring
  206  coordinators who meet the requirements of each of the following:
  207         1.Meet one of the following professional requirements:
  208         a.Be licensed as a mental health professional under
  209  chapter 491 and hold at least a master’s degree in the
  210  professional field of practice;
  211         b.Be licensed as a psychologist under chapter 490;
  212         c.Be licensed as a physician under chapter 458 or chapter
  213  459;
  214         d.Be licensed as a nurse under chapter 464 and hold at
  215  least a master’s degree;
  216         e.Be certified by the Florida Supreme Court as a family
  217  mediator and hold at least a master’s degree;
  218         f.Be a member in good standing of The Florida Bar; or
  219         g.Be a professional guardian as defined in s. 744.102(17)
  220  and hold at least a master’s degree.
  221         2.Complete all of the following:
  222         a.Three years of post-licensure or post-certification
  223  practice;
  224         b.A family mediation training program certified by the
  225  Florida Supreme Court;
  226         c.An elder mediation training program that meets standards
  227  approved and adopted by the Florida Supreme Court. If the
  228  Florida Supreme Court has not yet adopted such standards, the
  229  standards for elder mediation training approved and adopted by
  230  the Association for Conflict Resolution apply; and
  231         d.Eldercaring coordinator training. The training must
  232  total at least 28 hours and must include eldercaring
  233  coordination; elder, guardianship, and incapacity law and
  234  procedures and less restrictive alternatives to guardianship as
  235  it pertains to eldercaring coordination; at least 4 hours on the
  236  implications of elder abuse, neglect, and exploitation and other
  237  safety issues in eldercaring coordination; the elder’s role
  238  within eldercaring coordination; family dynamics related to
  239  eldercaring coordination; eldercaring coordination skills and
  240  techniques; multicultural competence and its use in eldercaring
  241  coordination; at least 2 hours of ethical considerations
  242  pertaining to eldercaring coordination; use of technology within
  243  eldercaring coordination; and court-specific eldercaring
  244  coordination procedures.
  245         3. Successfully pass a level 2 background screening as set
  246  forth in s. 435.04(2) and (3) or be exempt from disqualification
  247  under s. 435.07. The prospective eldercaring coordinator must
  248  submit a full set of fingerprints to the court or to a vendor,
  249  entity, or agency authorized by s. 943.053(13). The court,
  250  vendor, entity, or agency shall forward the fingerprints to the
  251  Department of Law Enforcement for state processing and the
  252  Department of Law Enforcement shall forward the fingerprints to
  253  the Federal Bureau of Investigation for national processing. The
  254  prospective eldercaring coordinator shall pay the fees for state
  255  and federal fingerprint processing. The state cost for
  256  fingerprint processing shall be as provided in s. 943.053(3)(e)
  257  for records provided to persons or entities other than those
  258  specified as exceptions therein.
  259         4.Have not been a respondent in a final order granting an
  260  injunction for protection against domestic, dating, sexual, or
  261  repeat violence or stalking or exploitation of an elder or a
  262  disabled person.
  263         5.Meet any additional qualifications the court may require
  264  to address issues specific to the parties.
  265         (b)A qualified eldercaring coordinator must be in good
  266  standing or in clear and active status with all professional
  267  licensing authorities or certification boards.
  270         (a)An eldercaring coordinator must resign and immediately
  271  report to the court if he or she no longer meets the minimum
  272  qualifications or if any of the disqualifying circumstances
  273  occurs.
  274         (b)The court shall remove an eldercaring coordinator upon
  275  the eldercaring coordinator’s resignation or disqualification or
  276  a finding of good cause shown based on the court’s own motion or
  277  a party’s motion.
  278         (c)Upon the court’s own motion or upon a party’s motion,
  279  the court may suspend the authority of an eldercaring
  280  coordinator pending a hearing on the motion for removal. Notice
  281  of hearing on removal must be timely served on the eldercaring
  282  coordinator and all parties.
  283         (d)If a motion was made in bad faith, a court may, in
  284  addition to any other remedy authorized by law, award reasonable
  285  attorney fees and costs to a party or an eldercaring coordinator
  286  who successfully challenges a motion for removal.
  287         (7)SUCCESSOR ELDERCARING COORDINATOR.—If an eldercaring
  288  coordinator resigns, is removed, or is suspended from an
  289  appointment, the court shall appoint a successor qualified
  290  eldercaring coordinator who is agreed to by all parties or, if
  291  the parties do not reach agreement on a successor, another
  292  qualified eldercaring coordinator to serve for the remainder of
  293  the original term.
  294         (8)FEES AND COSTS.—The court may not order the parties to
  295  eldercaring coordination without their consent unless the court
  296  determines that the parties have the financial ability to pay
  297  the eldercaring coordination fees and costs. The court shall
  298  determine the allocation among the parties of fees and costs for
  299  eldercaring coordination and may make an unequal allocation
  300  based on the financial circumstances of each party, including
  301  the elder.
  302         (a)A party who is asserting that he or she is unable to
  303  pay the eldercaring coordination fees and costs must complete a
  304  financial affidavit form approved by the presiding court. The
  305  court shall consider the party’s financial circumstances,
  306  including income; assets; liabilities; financial obligations;
  307  and resources, including, but not limited to, whether the party
  308  can receive or is receiving trust benefits, whether the party is
  309  represented by and paying a lawyer, and whether paying the fees
  310  and costs of eldercaring coordination would create a substantial
  311  hardship.
  312         (b)If a court finds that a party is indigent based upon
  313  the criteria prescribed in s. 57.082, the court may not order
  314  the party to eldercaring coordination unless funds are available
  315  to pay the indigent party’s allocated portion of the eldercaring
  316  coordination fees and costs, which may include funds provided
  317  for that purpose by one or more nonindigent parties who consent
  318  to paying such fees and costs, or unless insurance coverage or
  319  reduced or pro bono services are available to pay all or a
  320  portion of such fees and costs. If financial assistance, such as
  321  health insurance or eldercaring coordination grants, is
  322  available, such assistance must be taken into consideration by
  323  the court in determining the financial abilities of the parties.
  324         (9)CONFIDENTIALITY.—
  325         (a)Except as otherwise provided in this section, all
  326  communications made by, between, or among any parties,
  327  participants, or eldercaring coordinator during eldercaring
  328  coordination shall be kept confidential.
  329         (b)The eldercaring coordinator, participants, and each
  330  party designated in the order appointing the eldercaring
  331  coordinator may not testify or otherwise offer evidence about
  332  communications made by, between, or among the parties,
  333  participants, and the eldercaring coordinator during eldercaring
  334  coordination, unless one of the following applies:
  335         1.Such communications are necessary to identify,
  336  authenticate, confirm, or deny a written and signed agreement
  337  entered into by the parties during eldercaring coordination.
  338         2.Such communications are necessary to identify an issue
  339  for resolution by the court without otherwise disclosing
  340  communications made by any party or the eldercaring coordinator.
  341         3.Such communications are limited to the subject of a
  342  party’s compliance with the order of referral to eldercaring
  343  coordination, orders for psychological evaluation, court orders
  344  or health care provider recommendations for counseling, or court
  345  orders for substance abuse testing or treatment.
  346         4.The communications are necessary to determine the
  347  qualifications of an eldercaring coordinator or to determine the
  348  immunity and liability of an eldercaring coordinator who has
  349  acted in bad faith or with malicious purpose or in a manner
  350  exhibiting wanton and willful disregard for the rights, safety,
  351  or property of the parties pursuant to subsection (11).
  352         5.The parties agree that the communications be disclosed.
  353         6.The communications are necessary to protect any person
  354  from future acts that would constitute domestic violence under
  355  chapter 741; child abuse, neglect, or abandonment under chapter
  356  39; or abuse, neglect, or exploitation of an elderly or disabled
  357  adult under chapter 415 or chapter 825, or are necessary in an
  358  investigation conducted under s. 744.2004 or a review conducted
  359  under s. 744.368(5).
  360         7.The communications are offered to report, prove, or
  361  disprove professional misconduct alleged to have occurred during
  362  eldercaring coordination, solely for the internal use of the
  363  body conducting the investigation of such misconduct.
  364         8.The communications are offered to report, prove, or
  365  disprove professional malpractice alleged to have occurred
  366  during eldercaring coordination, solely for the professional
  367  malpractice proceeding.
  368         9.The communications were willfully used to plan a crime,
  369  commit or attempt to commit a crime, conceal ongoing criminal
  370  activity, or threaten violence.
  371         (c)Notwithstanding paragraphs (a) and (b), confidentiality
  372  or privilege does not attach to a signed written agreement
  373  reached during eldercaring coordination, unless the parties
  374  agree otherwise, or to any eldercaring coordination
  375  communication:
  376         1.For which the confidentiality or privilege against
  377  disclosure has been waived by all parties;
  378         2.That is willfully used to plan a crime, commit or
  379  attempt to commit a crime, conceal ongoing criminal activity, or
  380  threaten violence; or
  381         3.That requires a mandatory report pursuant to chapter 39
  382  or chapter 415 solely for the purpose of making the mandatory
  383  report to the entity requiring the report.
  385         (a)An eldercaring coordinator must immediately inform the
  386  court by affidavit or verified report, without notice to the
  387  parties, if:
  388         1.The eldercaring coordinator has or will be making a
  389  report pursuant to chapter 39 or chapter 415; or
  390         2.A party, including someone acting on a party’s behalf,
  391  is threatening or is believed to be planning to commit the
  392  offense of kidnapping upon an elder as defined in s. 787.01, or
  393  wrongfully removes or is removing the elder from the
  394  jurisdiction of the court without prior court approval or
  395  compliance with the requirements of s. 744.1098. If the
  396  eldercaring coordinator suspects that a party or family member
  397  has relocated an elder within this state to protect the elder
  398  from a domestic violence situation, the eldercaring coordinator
  399  may not disclose the location of the elder unless required by
  400  court order.
  401         (b)An eldercaring coordinator shall immediately inform the
  402  court by affidavit or verified report and serve a copy of such
  403  affidavit or report on each party upon learning that a party is
  404  the subject of a final order or injunction of protection against
  405  domestic violence or exploitation of an elderly person or has
  406  been arrested for an act of domestic violence or exploitation of
  407  an elderly person.
  409         (a)A person who is appointed or employed to assist the
  410  body designated to perform duties relating to disciplinary
  411  proceedings involving eldercaring coordinators has absolute
  412  immunity from liability arising from the performance of his or
  413  her duties while acting within the scope of his or her appointed
  414  functions or duties of employment.
  415         (b)An eldercaring coordinator who is appointed by the
  416  court is not liable for civil damages for any act or omission
  417  within the scope of his or her duties under an order of referral
  418  unless such person acted in bad faith or with malicious purpose
  419  or in a manner exhibiting wanton and willful disregard for the
  420  rights, safety, or property of the parties.
  421         (12)MINIMUM STANDARDS AND PROCEDURES.—The Florida Supreme
  422  Court shall establish minimum standards and procedures for the
  423  qualification, ethical conduct, discipline, and training and
  424  education of eldercaring coordinators who serve under this
  425  section. The Florida Supreme Court may appoint or employ such
  426  personnel as are necessary to assist the court in exercising its
  427  powers and performing its duties under this section.
  428         Section 2. This act shall take effect July 1, 2021.