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The Florida Senate

2016 Florida Statutes

Title XLIII DOMESTIC RELATIONS
Chapter 744 GUARDIANSHIP Entire Chapter
SECTION 20041
Grounds for discipline; penalties; enforcement.
F.S. 744.20041
744.20041 Grounds for discipline; penalties; enforcement.—
(1) The following acts by a professional guardian shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
(a) Making misleading, deceptive, or fraudulent representations in or related to the practice of guardianship.
(b) Violating any rule governing guardians or guardianships adopted by the Office of Public and Professional Guardians.
(c) Being convicted or found guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of or the ability to practice as a professional guardian.
(d) Failing to comply with the educational course requirements contained in s. 744.2003.
(e) Having a registration, a license, or the authority to practice a regulated profession revoked, suspended, or otherwise acted against, including the denial of registration or licensure, by the registering or licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation under Florida law. The registering or licensing authority’s acceptance of a relinquishment of registration or licensure, stipulation, consent order, or other settlement offered in response to or in anticipation of the filing of charges against the registration or license shall be construed as an action against the registration or license.
(f) Knowingly filing a false report or complaint with the Office of Public and Professional Guardians against another guardian.
(g) Attempting to obtain, obtaining, or renewing a registration or license to practice a profession by bribery, by fraudulent misrepresentation, or as a result of an error by the Office of Public and Professional Guardians which is known and not disclosed to the Office of Public and Professional Guardians.
(h) Failing to report to the Office of Public and Professional Guardians any person who the professional guardian knows is in violation of this chapter or the rules of the Office of Public and Professional Guardians.
(i) Failing to perform any statutory or legal obligation placed upon a professional guardian.
(j) Making or filing a report or record that the professional guardian knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, or willfully impeding or obstructing another person’s attempt to do so. Such reports or records shall include only those that are signed in the guardian’s capacity as a professional guardian.
(k) Using the position of guardian for the purpose of financial gain by a professional guardian or a third party, other than the funds awarded to the professional guardian by the court pursuant to s. 744.108.
(l) Violating a lawful order of the Office of Public and Professional Guardians or failing to comply with a lawfully issued subpoena of the Office of Public and Professional Guardians.
(m) Improperly interfering with an investigation or inspection authorized by statute or rule or with any disciplinary proceeding.
(n) Using the guardian relationship to engage or attempt to engage the ward, or an immediate family member or a representative of the ward, in verbal, written, electronic, or physical sexual activity.
(o) Failing to report to the Office of Public and Professional Guardians in writing within 30 days after being convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction.
(p) Being unable to perform the functions of a professional guardian with reasonable skill by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of substance or as a result of any mental or physical condition.
(q) Failing to post and maintain a blanket fiduciary bond pursuant to s. 744.1085.
(r) Failing to maintain all records pertaining to a guardianship for a reasonable time after the court has closed the guardianship matter.
(s) Violating any provision of this chapter or any rule adopted pursuant thereto.
(2) When the Office of Public and Professional Guardians finds a professional guardian guilty of violating subsection (1), it may enter an order imposing one or more of the following penalties:
(a) Refusal to register an applicant as a professional guardian.
(b) Suspension or permanent revocation of a professional guardian’s registration.
(c) Issuance of a reprimand or letter of concern.
(d) Requirement that the professional guardian undergo treatment, attend continuing education courses, submit to reexamination, or satisfy any terms that are reasonably tailored to the violations found.
(e) Requirement that the professional guardian pay restitution of any funds obtained, disbursed, or obtained through a violation of any statute, rule, or other legal authority to a ward or the ward’s estate, if applicable.
(f) Requirement that the professional guardian undergo remedial education.
(3) In determining what action is appropriate, the Office of Public and Professional Guardians must first consider what sanctions are necessary to safeguard wards and to protect the public. Only after those sanctions have been imposed may the Office of Public and Professional Guardians consider and include in the order requirements designed to mitigate the circumstances and rehabilitate the professional guardian.
(4) The Office of Public and Professional Guardians shall adopt by rule and periodically review the disciplinary guidelines applicable to each ground for disciplinary action that may be imposed by the Office of Public and Professional Guardians pursuant to this chapter.
(5) It is the intent of the Legislature that the disciplinary guidelines specify a meaningful range of designated penalties based upon the severity and repetition of specific offenses and that minor violations be distinguished from those which endanger the health, safety, or welfare of a ward or the public; that such guidelines provide reasonable and meaningful notice to the public of likely penalties that may be imposed for proscribed conduct; and that such penalties be consistently applied by the Office of Public and Professional Guardians.
(6) The Office of Public and Professional Guardians shall by rule designate possible mitigating and aggravating circumstances and the variation and range of penalties permitted for such circumstances.
(a) An administrative law judge, in recommending penalties in any recommended order, must follow the disciplinary guidelines established by the Office of Public and Professional Guardians and must state in writing any mitigating or aggravating circumstance upon which a recommended penalty is based if such circumstance causes the administrative law judge to recommend a penalty other than that provided in the disciplinary guidelines.
(b) The Office of Public and Professional Guardians may impose a penalty other than those provided for in the disciplinary guidelines upon a specific finding in the final order of mitigating or aggravating circumstances.
(7) In addition to, or in lieu of, any other remedy or criminal prosecution, the Office of Public and Professional Guardians may file a proceeding in the name of the state seeking issuance of an injunction or a writ of mandamus against any person who violates any provision of this chapter or any provision of law with respect to professional guardians or the rules adopted pursuant thereto.
(8) Notwithstanding chapter 120, if the Office of Public and Professional Guardians determines that revocation of a professional guardian’s registration is the appropriate penalty, the revocation is permanent.
(9) If the Office of Public and Professional Guardians makes a final determination to suspend or revoke the professional guardian’s registration, the office must provide the determination to the court of competent jurisdiction for any guardianship case to which the professional guardian is currently appointed.
(10) The purpose of this section is to facilitate uniform discipline for those actions made punishable under this section and, to this end, a reference to this section constitutes a general reference under the doctrine of incorporation by reference.
(11) The Office of Public and Professional Guardians shall adopt rules to administer this section.
History.—s. 12, ch. 2016-40.