Florida Senate - 2021 CS for CS for SB 368 By the Committees on Appropriations; and Judiciary; and Senator Baxley 576-04680-21 2021368c2 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 eldercaring 16 coordinators to document completed training that meets 17 certain requirements until the Florida Supreme Court 18 certifies a training program; requiring the applicant 19 to meet certain qualifications for background 20 screening, unless otherwise exempt; requiring 21 prospective eldercaring coordinators to submit 22 fingerprints for purposes of criminal history 23 background screening; providing for the payment and 24 cost of fingerprint processing; providing for the 25 removal and suspension of authority of certain 26 eldercaring coordinators; requiring that notice of 27 hearing on removal of a coordinator be timely served; 28 authorizing the courts to award certain fees and costs 29 under certain circumstances; requiring the court to 30 appoint successor eldercaring coordinators under 31 certain circumstances; requiring the parties to 32 eldercaring coordination to pay an equal share of the 33 eldercaring coordinator’s fees and costs under certain 34 circumstances; authorizing the courts to make certain 35 determinations based on the fees and costs of 36 eldercaring coordination; providing that all 37 eldercaring communications are confidential; providing 38 exceptions to confidentiality; providing remedies for 39 breaches of such confidentiality; providing 40 requirements for emergency reporting to courts under 41 certain circumstances; providing immunity from 42 liability for eldercaring coordinators under specified 43 circumstances; requiring the Florida Supreme Court to 44 establish certain minimum standards and procedures for 45 eldercaring coordinators; authorizing the court’s 46 order of referral to address procedures governing 47 complaints until the minimum standards and procedures 48 are established; providing an effective date. 49 50 Be It Enacted by the Legislature of the State of Florida: 51 52 Section 1. Section 44.407, Florida Statutes, is created to 53 read: 54 44.407 Elder-focused dispute resolution process.— 55 (1) LEGISLATIVE FINDINGS.—The Legislature finds that: 56 (a) Denying an elder a voice in decisions regarding himself 57 or herself may negatively affect the elder’s health and well 58 being, as well as deprive the elder of his or her legal rights. 59 Even if an elder is losing capacity to make major decisions for 60 himself or herself, the elder is still entitled to the dignity 61 of having his or her voice heard. 62 (b) In conjunction with proceedings in court, it is in the 63 best interest of an elder, his or her family members, and 64 legally recognized decisionmakers to have access to a 65 nonadversarial process to resolve disputes relating to an elder 66 which focuses on the elder’s wants, needs, and best interests. 67 Such a process will protect and preserve the elder’s exercisable 68 rights. 69 (c) By recognizing that every elder, including those whose 70 capacity is being questioned, has unique needs, unique 71 interests, and differing abilities, the Legislature intends for 72 this section to promote the public welfare by establishing a 73 unique dispute resolution option to complement and enhance, not 74 replace, other services, such as the provision of legal 75 information or legal representation; financial advice; 76 individual or family therapy; medical, psychological, or 77 psychiatric evaluation; or mediation, specifically for issues 78 related to the care and needs of elders. The Legislature intends 79 that this section be liberally construed to accomplish these 80 goals. 81 (2) DEFINITIONS.—As used in this section, the term: 82 (a)1. “Action” means a proceeding in which a party sought 83 or seeks a judgment or an order from the court to: 84 a. Determine, pursuant to s. 744.331, whether someone is or 85 is not incapacitated. 86 b. Appoint or remove a guardian or guardian advocate. 87 c. Review any actions of a guardian. 88 d. Execute an investigation pursuant to s. 415.104. 89 e. Review an agent’s actions pursuant to s. 709.2116. 90 f. Review a proxy’s decision pursuant to s. 765.105. 91 g. Enter an injunction for the protection of an elder under 92 s. 825.1035. 93 h. Follow up on a complaint made to the Office of Public 94 and Professional Guardians pursuant to s. 744.2004. 95 i. At the discretion of the presiding judge, address any 96 other matters pending before the court which involve the care 97 and safety of an elder. 98 2. The term may be applied only to using eldercaring 99 coordination solely to address disputes regarding the care and 100 safety of the elder. The term does not include actions brought 101 under chapter 732, chapter 733, or chapter 736. 102 (b) “Care and safety” means the condition of the aging 103 person’s general physical, mental, emotional, psychological, and 104 social well-being. The term does not include: 105 1. A determination of capacity by the court under s. 106 744.331(5) or (6); or 107 2. Unless the parties agree otherwise, matters relating to 108 the elder’s estate planning, agent designations under chapter 109 709, or surrogate designations under chapter 765; trusts in 110 which the elder is a grantor, fiduciary, or beneficiary; or 111 other similar financially focused matters. 112 (c) “Elder” means a person 60 years of age or older who is 113 alleged to be suffering from the infirmities of aging as 114 manifested by a physical, mental, or emotional dysfunction to 115 the extent that the elder’s ability to provide adequately for 116 the protection or care of his or her own person or property is 117 impaired. 118 (d) “Eldercaring coordination” means an elder-focused 119 dispute resolution process during which an eldercaring 120 coordinator assists an elder, legally authorized decisionmakers, 121 and others who participate by court order or by invitation of 122 the eldercaring coordinator, in resolving disputes regarding the 123 care and safety of an elder by: 124 1. Facilitating more effective communication and 125 negotiation and the development of problem-solving skills. 126 2. Providing education about eldercare resources. 127 3. Facilitating the creation, modification, or 128 implementation of an eldercaring plan and reassessing it as 129 necessary to reach a resolution of ongoing disputes concerning 130 the care and safety of the elder. 131 4. Making recommendations for the resolution of disputes 132 concerning the care and safety of the elder. 133 5. With the prior approval of the parties to an action or 134 of the court, making limited decisions within the scope of the 135 court’s order of referral. 136 (e) “Eldercaring coordination communication” means an oral 137 or written statement or nonverbal conduct intended to make an 138 assertion by, between, or among parties, participants, or the 139 eldercaring coordinator which is made during the course of an 140 eldercaring coordination activity, or before the activity if 141 made in furtherance of eldercaring coordination. The term does 142 not include statements made during eldercaring coordination 143 which involve the commission of a crime, the intent to commit a 144 crime, or ongoing abuse, exploitation, or neglect of a child or 145 vulnerable adult. 146 (f) “Eldercaring coordinator” means an impartial third 147 person who is appointed by the court or designated by the 148 parties and who meets the requirements of subsection (5). The 149 role of the eldercaring coordinator is to assist parties through 150 eldercaring coordination in a manner that respects the elder’s 151 need for autonomy and safety. 152 (g) “Eldercaring plan” means a continually reassessed plan 153 for the items, tasks, or responsibilities needed to provide for 154 the care and safety of an elder which is modified throughout 155 eldercaring coordination to meet the changing needs of the elder 156 and which takes into consideration the preferences and wishes of 157 the elder. The plan is not a legally enforceable document, but 158 is meant for use by the parties and participants. 159 (h) “Good cause” means a finding that the eldercaring 160 coordinator: 161 1. Is not fulfilling the duties and obligations of the 162 position; 163 2. Has failed to comply with any order of the court, unless 164 the order has been superseded on appeal; 165 3. Has conflicting or adverse interests that affect his or 166 her impartiality; 167 4. Has engaged in circumstances that compromise the 168 integrity of eldercaring coordination; or 169 5. Has had a disqualifying event occur. 170 171 The term does not include a party’s disagreement with the 172 eldercaring coordinator’s methods or procedures. 173 (i) “Legally authorized decisionmaker” means an individual 174 designated, either by the elder or by the court, pursuant to 175 chapter 709, chapter 744, chapter 747, or chapter 765 who has 176 the authority to make specific decisions on behalf of the elder 177 who is the subject of an action. 178 (j) “Participant” means an individual who is not a party 179 and who joins eldercaring coordination by invitation of or with 180 the consent of the eldercaring coordinator but who has not filed 181 a pleading in the action from which the case was referred to 182 eldercaring coordination. 183 (k) “Party” includes the elder who is the subject of an 184 action and any other individual over whom the court has 185 jurisdiction related to that action. 186 (3) REFERRAL.— 187 (a) Upon agreement of the parties to an action, the court’s 188 own motion, or the motion of a party to the action, the court 189 may appoint an eldercaring coordinator and refer the parties to 190 eldercaring coordination to assist in the resolution of disputes 191 concerning the care and safety of the elder who is the subject 192 of the action. 193 (b) The court may not refer a party who has a history of 194 domestic violence or exploitation of an elderly person to 195 eldercaring coordination unless the elder and other parties in 196 the action consent to such referral. 197 1. The court shall offer each party an opportunity to 198 consult with an attorney or a domestic violence advocate before 199 accepting consent to such referral. The court shall determine 200 whether each party has given his or her consent freely and 201 voluntarily. 202 2. The court shall consider whether a party has committed 203 an act of exploitation as defined in s. 415.102(8) or s. 204 825.103(1) or domestic violence as defined in s. 741.28 against 205 another party or any member of another party’s family; engaged 206 in a pattern of behaviors that exert power and control over 207 another party and that may compromise another party’s ability to 208 negotiate a fair result; or engaged in behavior that leads 209 another party to have reasonable cause to believe that he or she 210 is in imminent danger of becoming a victim of domestic violence. 211 The court shall consider and evaluate all relevant factors, 212 including, but not limited to, the factors specified in s. 213 741.30(6)(b). 214 3. If a party has a history of domestic violence or 215 exploitation of an elderly person, the court must order 216 safeguards to protect the safety of the participants and the 217 elder and the elder’s property, including, but not limited to, 218 adherence to all provisions of an injunction for protection or 219 conditions of bail, probation, or a sentence arising from 220 criminal proceedings. 221 (4) COURT APPOINTMENT.— 222 (a) A court appointment of an eldercaring coordinator is 223 for a term of up to 2 years, and the court shall conduct review 224 hearings intermittently to determine whether the term should be 225 concluded or extended. Appointments conclude upon expiration of 226 the term or upon discharge by the court, whichever occurs 227 earlier. 228 (b) The order of appointment issued by the court must 229 define the scope of the eldercaring coordinator’s authority 230 under the appointment in the particular action, consistent with 231 this section. 232 (c) The order must specify that, notwithstanding the 233 requirement for intermittent review hearings imposed under 234 paragraph (a), a party may move the court at any time during the 235 period of appointment for termination of the appointment. Upon 236 the filing of such a motion, the court shall timely conduct a 237 hearing to determine whether to terminate the appointment. Until 238 the court has ruled on the motion, the eldercaring coordination 239 process must continue. In making the determination, the court 240 shall consider, at a minimum: 241 1. The efforts and progress of eldercaring coordination in 242 the action to date; 243 2. The preference of the elder, if ascertainable; and 244 3. Whether continuation of the appointment is in the best 245 interests of the elder. 246 (5) QUALIFICATIONS FOR ELDERCARING COORDINATORS.— 247 (a) The court shall appoint qualified eldercaring 248 coordinators who meet all of the following requirements: 249 1. Meet one of the following professional requirements: 250 a. Be licensed as a mental health professional under 251 chapter 491 and hold at least a master’s degree in the 252 professional field of practice; 253 b. Be licensed as a psychologist under chapter 490; 254 c. Be licensed as a physician under chapter 458 or chapter 255 459; 256 d. Be licensed as a nurse under chapter 464 and hold at 257 least a master’s degree; 258 e. Be certified by the Florida Supreme Court as a family 259 mediator and hold at least a master’s degree; 260 f. Be a member in good standing of The Florida Bar; or 261 g. Be a professional guardian as defined in s. 744.102 and 262 hold at least a master’s degree. 263 2. Complete all of the following: 264 a. Three years of post-licensure or post-certification 265 practice; 266 b. A family mediation training program certified by the 267 Florida Supreme Court; and 268 c. An eldercaring coordinator training program certified by 269 the Florida Supreme Court. The training must total at least 44 270 hours and must include advanced tactics for dispute resolution 271 of issues related to aging, illness, incapacity, or other 272 vulnerabilities associated with persons 60 years of age or 273 older, as well as elder, guardianship, and incapacity law and 274 procedures and less restrictive alternatives to guardianship; 275 phases of eldercaring coordination and the role and functions of 276 an eldercaring coordinator; the elder’s role within eldercaring 277 coordination; family dynamics related to eldercaring 278 coordination; eldercaring coordination skills and techniques; 279 multicultural competence and its use in eldercaring 280 coordination; at least 6 hours on the implications of elder 281 abuse, neglect, and exploitation and other safety issues 282 pertinent to this training; at least 4 hours of ethical 283 considerations pertaining to this training; use of technology 284 within eldercaring coordination; and court-specific eldercaring 285 coordination procedures. Pending certification of such a 286 training program by the Florida Supreme Court, the eldercaring 287 coordinator must document completion of training that satisfies 288 the hours and the elements prescribed in this sub-subparagraph. 289 3. Successfully pass a level 2 background screening as set 290 forth in s. 435.04(2) and (3) or be exempt from disqualification 291 under s. 435.07. The prospective eldercaring coordinator must 292 submit a full set of fingerprints to the court or to a vendor, 293 entity, or agency authorized by s. 943.053(13). The court, 294 vendor, entity, or agency shall forward the fingerprints to the 295 Department of Law Enforcement for state processing, and the 296 Department of Law Enforcement shall forward the fingerprints to 297 the Federal Bureau of Investigation for national processing. The 298 prospective eldercaring coordinator shall pay the fees for state 299 and federal fingerprint processing. The state cost for 300 fingerprint processing shall be as provided in s. 943.053(3)(e) 301 for records provided to persons or entities other than those 302 specified as exceptions therein. 303 4. Have not been a respondent in a final order granting an 304 injunction for protection against domestic, dating, sexual, or 305 repeat violence or stalking or exploitation of an elder or a 306 disabled person. 307 5. Meet any additional qualifications the court may require 308 to address issues specific to the parties. 309 (b) A qualified eldercaring coordinator must be in good 310 standing or in clear and active status with all professional 311 licensing authorities or certification boards to which the 312 eldercaring coordinator is subject. 313 (6) DISQUALIFICATIONS AND REMOVAL OF ELDERCARING 314 COORDINATORS.— 315 (a) An eldercaring coordinator must resign and immediately 316 report to the court if he or she no longer meets the minimum 317 qualifications or if any of the disqualifying circumstances 318 occurs. 319 (b) The court shall remove an eldercaring coordinator upon 320 the eldercaring coordinator’s resignation or disqualification or 321 a finding of good cause shown based on the court’s own motion or 322 a party’s motion. 323 (c) Upon the court’s own motion or upon a party’s motion, 324 the court may suspend the authority of an eldercaring 325 coordinator pending a hearing on the motion for removal. Notice 326 of hearing on removal must be timely served on the eldercaring 327 coordinator and all parties. 328 (d) If a motion was made in bad faith, a court may, in 329 addition to any other remedy authorized by law, award reasonable 330 attorney fees and costs to a party or an eldercaring coordinator 331 who successfully challenges a motion for removal. 332 (7) SUCCESSOR ELDERCARING COORDINATOR.—If an eldercaring 333 coordinator resigns, is removed, or is suspended from an 334 appointment, the court shall appoint a successor qualified 335 eldercaring coordinator who is agreed to by all parties or, if 336 the parties do not reach agreement on a successor, another 337 qualified eldercaring coordinator to serve for the remainder of 338 the original term. 339 (8) FEES AND COSTS.—Each party referred by the court to the 340 eldercaring coordination process shall pay an equal portion of 341 the eldercaring coordinator’s fees and costs unless the court 342 determines that an unequal allocation is necessary based on the 343 financial circumstances of each party, including the elder. The 344 court’s order of referral must specify which parties are ordered 345 to the process and the percentage of the eldercaring 346 coordinator’s fees and costs which each party is required to 347 pay. 348 (a) A party who is asserting that he or she is unable to 349 pay the eldercaring coordination fees and costs must complete a 350 financial affidavit form approved by the presiding court. The 351 court shall consider the party’s financial circumstances, 352 including income; assets; liabilities; financial obligations; 353 and resources, including, but not limited to, whether the party 354 can receive or is receiving trust benefits, whether the party is 355 represented by and paying a lawyer, and whether paying the fees 356 and costs of eldercaring coordination would create a substantial 357 hardship. 358 (b) If a court finds that a party is indigent based upon 359 the criteria prescribed in s. 57.082, the court may not order 360 the party to eldercaring coordination unless funds are available 361 to pay the indigent party’s allocated portion of the eldercaring 362 coordination fees and costs, which may include funds provided 363 for that purpose by one or more nonindigent parties who consent 364 to paying such fees and costs, or unless insurance coverage or 365 reduced or pro bono services are available to pay all or a 366 portion of such fees and costs. If financial assistance, such as 367 health insurance or eldercaring coordination grants, is 368 available, such assistance must be taken into consideration by 369 the court in determining the financial abilities of the parties. 370 (9) CONFIDENTIALITY; PRIVILEGE; EXCEPTIONS.— 371 (a) Except as provided in this section, all eldercaring 372 coordination communications are confidential. An eldercaring 373 coordination party, an eldercaring coordinator, or a participant 374 may not disclose an eldercaring coordination communication to a 375 person other than another eldercaring coordination party, an 376 eldercaring coordinator, or a participant, or a party’s or 377 participant’s counsel. A violation of this section may be 378 remedied as provided in paragraph (g). If the eldercaring 379 coordination is court ordered, a violation of this section also 380 may subject the eldercaring coordination participant to 381 sanctions by the court, including, but not limited to, costs, 382 attorney fees, and eldercaring coordinator’s fees. 383 (b) An eldercaring coordination party, an eldercaring 384 coordinator, or a participant has a privilege to refuse to 385 testify and to prevent any other person from testifying in a 386 subsequent proceeding regarding eldercaring coordination 387 communications. 388 (c) Notwithstanding paragraphs (a) and (b), confidentiality 389 or privilege does not attach to a signed written agreement 390 reached during eldercaring coordination, unless the parties 391 agree otherwise, or to any eldercaring coordination 392 communication that: 393 1. Is necessary to identify, authenticate, confirm, or deny 394 a written and signed agreement entered into by the parties 395 during eldercaring coordination. 396 2. Is necessary to identify an issue for resolution by the 397 court, including to support a motion to terminate eldercaring 398 coordination, without otherwise disclosing communications made 399 by any party, participant, or the eldercaring coordinator. 400 3. Is limited to the subject of a party’s compliance with 401 the order of referral to eldercaring coordination, orders for 402 psychological evaluation, court orders or health care provider 403 recommendations for counseling, or court orders for substance 404 abuse testing or treatment. 405 4. Is necessary to determine the qualifications of an 406 eldercaring coordinator or to determine the immunity and 407 liability of an eldercaring coordinator who has acted in bad 408 faith or with malicious purpose or in a manner exhibiting wanton 409 and willful disregard for the rights, safety, or property of the 410 parties under subsection (11). 411 5. The parties agree may be disclosed or for which 412 privilege against disclosure has been waived by all parties. 413 6. Is made in the event the eldercaring coordinator needs 414 to contact persons outside of the eldercaring coordination 415 process to give or obtain information that furthers the 416 eldercaring coordination process. 417 7. Must be reported pursuant to chapter 39 or chapter 415 418 solely for the purpose of making the mandatory report to the 419 entity requiring the report. 420 8. Is necessary to protect any person from future acts that 421 would constitute child abuse, neglect, or abandonment under 422 chapter 39; abuse, neglect, or exploitation of an elderly or 423 disabled adult under chapter 415 or chapter 825; or domestic 424 violence under chapter 741 or is necessary to further an 425 investigation conducted under s. 744.2004 or a review conducted 426 under s. 744.368(5). 427 9. Is offered, solely for the internal use of a body 428 conducting an investigation of professional misconduct, to 429 report, prove, or disprove such misconduct that is alleged to 430 have occurred during eldercaring coordination. 431 10. Is offered, solely for consideration in a professional 432 malpractice proceeding, to report, prove, or disprove 433 professional malpractice alleged to have occurred during 434 eldercaring coordination. 435 11. Is willfully used to plan a crime, commit or attempt to 436 commit a crime, conceal ongoing criminal activity, or threaten 437 violence. 438 (d) An eldercaring coordination communication disclosed 439 under subparagraph (c)1., subparagraph (c)2., subparagraph 440 (c)5., subparagraph (c)8., or subparagraph (c)9. remains 441 confidential and is not discoverable or admissible for any other 442 purpose, unless otherwise authorized by this section. 443 (e) Information that is otherwise admissible or subject to 444 discovery is not inadmissible or protected from discovery by 445 reason of its disclosure or use in the eldercaring coordination 446 process. 447 (f) A party who discloses or makes a representation about a 448 privileged eldercaring coordination communication waives that 449 privilege, but only to the extent necessary for the other party 450 or parties to respond to the disclosure or representation. 451 (g)1. Any eldercaring coordination party or participant who 452 knowingly and willfully discloses an eldercaring coordination 453 communication in violation of this subsection, upon application 454 by any party to a court of competent jurisdiction, is subject to 455 remedies, including: 456 a. Equitable relief; 457 b. Compensatory damages; 458 c. Contribution to the other party’s or parties’ attorney 459 fees, the other party’s or parties’ portion of the eldercaring 460 coordinator fees, and the other party’s or parties’ portion of 461 the costs incurred in the eldercaring coordination process; and 462 d. Reasonable attorney fees and costs incurred in the 463 application for remedies under this section. 464 2. Notwithstanding any other law, an application for relief 465 filed under this paragraph may not be commenced later than 2 466 years after the date on which the party had a reasonable 467 opportunity to discover the breach of confidentiality, but in no 468 case more than 4 years after the breach. 469 3. An eldercaring coordination party or participant may not 470 be subject to a civil action under this paragraph for lawful 471 compliance with s. 119.07. 472 (10) EMERGENCY REPORTING TO THE COURT.— 473 (a) An eldercaring coordinator must immediately inform the 474 court by affidavit or verified report, without notice to the 475 parties, if: 476 1. The eldercaring coordinator has or will be making a 477 report pursuant to chapter 39 or chapter 415; or 478 2. A party, including someone acting on a party’s behalf, 479 is threatening or is believed to be planning to commit the 480 offense of kidnapping, as defined in s. 787.01(1), upon an elder 481 or wrongfully removes or is removing the elder from the 482 jurisdiction of the court without prior court approval or 483 compliance with the requirements of s. 744.1098. If the 484 eldercaring coordinator suspects that a party or family member 485 has relocated an elder within this state to protect the elder 486 from a domestic violence situation, the eldercaring coordinator 487 may not disclose the location of the elder unless required by 488 court order. 489 (b) An eldercaring coordinator shall immediately inform the 490 court by affidavit or verified report and serve a copy of such 491 affidavit or report on each party upon learning that a party is 492 the subject of a final order or injunction of protection against 493 domestic violence or exploitation of an elderly person or has 494 been arrested for an act of domestic violence or exploitation of 495 an elderly person. 496 (11) IMMUNITY AND LIMITATION ON LIABILITY.— 497 (a) A person who is appointed or employed to assist the 498 body designated to perform duties relating to disciplinary 499 proceedings involving eldercaring coordinators has absolute 500 immunity from liability arising from the performance of his or 501 her duties while acting within the scope of his or her appointed 502 functions or duties of employment. 503 (b) An eldercaring coordinator who is appointed by the 504 court is not liable for civil damages for any act or omission 505 within the scope of his or her duties under an order of referral 506 unless such person acted in bad faith or with malicious purpose 507 or in a manner exhibiting wanton and willful disregard for the 508 rights, safety, or property of the parties. 509 (12) MINIMUM STANDARDS AND PROCEDURES.—The Florida Supreme 510 Court shall establish minimum standards and procedures for the 511 qualification, ethical conduct, discipline, and training and 512 education of eldercaring coordinators who serve under this 513 section. The Florida Supreme Court may appoint or employ such 514 personnel as are necessary to assist the court in exercising its 515 powers and performing its duties under this section. Pending the 516 establishment of such minimum standards and procedures for the 517 discipline of eldercaring coordinators, the order of referral by 518 the court may address procedures governing complaints against 519 the appointed eldercaring coordinator consistent with this 520 section. 521 Section 2. This act shall take effect July 1, 2021.