F.S. 744.101 Short title.
This chapter may be cited as the “Florida Guardianship Law.”
GUARDIANSHIP
F.S. Ch. 744
in effectF.S. 744.102 Definitions.
As used in this chapter, the term:
(1)
“Attorney for the alleged incapacitated person” means an attorney who represents the alleged incapacitated person. The attorney shall represent the expressed wishes of the alleged incapacitated person to the extent it is consistent with the rules regulating The Florida Bar.
(2)
“Audit” means a systematic review of financial and all other documents to ensure compliance with s. 744.368, rules of court, and local procedures using generally accepted accounting principles. The term includes various practices that meet professional standards, such as verifications, reviews of substantiating papers and accounts, interviews, inspections, and investigations.
(3)
“Clerk” means the clerk or deputy clerk of the court.
(4)
“Corporate guardian” means a corporation authorized to exercise fiduciary or guardianship powers in this state and includes a nonprofit corporate guardian.
(5)
“Court” means the circuit court.
(6)
“Court monitor” means a person appointed by the court under s. 744.107 to provide the court with information concerning a ward.
(7)
“Estate” means the property of a ward subject to administration.
(8)
“Foreign guardian” means a guardian appointed in another state or country.
(9)
“Guardian” means a person who has been appointed by the court to act on behalf of a ward’s person or property, or both.
(a)
“Limited guardian” means a guardian who has been appointed by the court to exercise the legal rights and powers specifically designated by court order entered after the court has found that the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property, or after the person has voluntarily petitioned for appointment of a limited guardian.
(b)
“Plenary guardian” means a person who has been appointed by the court to exercise all delegable legal rights and powers of the ward after the court has found that the ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property.
(10)
“Guardian ad litem” means a person who is appointed by the court having jurisdiction of the guardianship or a court in which a particular legal matter is pending to represent a ward in that proceeding.
(11)
“Guardian advocate” means a person appointed by a written order of the court to represent a person with developmental disabilities under s. 393.12. As used in this chapter, the term does not apply to a guardian advocate appointed for a person determined incompetent to consent to treatment under s. 394.4598.
(12)
“Incapacitated person” means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.
(a)
To “manage property” means to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.
(b)
To “meet essential requirements for health or safety” means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.
(13)
“Minor” means a person under 18 years of age whose disabilities have not been removed by marriage or otherwise.
(14)
“Next of kin” means those persons who would be heirs at law of the ward or alleged incapacitated person if the person were deceased and includes the lineal descendants of the ward or alleged incapacitated person.
(15)
“Nonprofit corporate guardian” means a nonprofit corporation organized for religious or charitable purposes and existing under the laws of this state.
(16)
“Preneed guardian” means a person named in a written declaration to serve as guardian in the event of the incapacity of the declarant as provided in s. 744.3045.
(17)
“Professional guardian” means any guardian who has at any time rendered services to three or more wards as their guardian. A person serving as a guardian for two or more relatives as defined in s. 744.309(2) is not considered a professional guardian. A public guardian shall be considered a professional guardian for purposes of regulation, education, and registration.
(18)
“Property” means both real and personal property or any interest in it and anything that may be the subject of ownership.
(19)
“Standby guardian” means a person empowered to assume the duties of guardianship upon the death or adjudication of incapacity of the last surviving natural or appointed guardian.
(20)
“Surrogate guardian” means a guardian designated according to s. 744.442.
(21)
“Totally incapacitated” means incapable of exercising any of the rights enumerated in s. 744.3215(2) and (3).
(22)
“Ward” means a person for whom a guardian has been appointed.
F.S. 744.104 Verification of documents.
When verification of a document is required in this chapter or by rule, the document filed shall include an oath or affirmation or the following statement: “Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true to the best of my knowledge and belief.” Any person who shall willfully include a false statement in the document shall be guilty of perjury and upon conviction shall be punished accordingly.
F.S. 744.105 Costs.
In all guardianship proceedings, costs may be awarded. When the costs are to be paid out of the property of the ward, the court may direct from what part of the property the costs shall be paid.
F.S. 744.106 Notice.
The requirements for notice under this chapter are those provided for in the Florida Probate Rules except as provided in s. 744.331(1).
F.S. 744.107 Court monitors.
(1)
The court may, upon inquiry from any interested person or upon its own motion in any proceeding over which it has jurisdiction, appoint a monitor. The court shall not appoint as a monitor a family member or any person with a personal interest in the proceedings. The order of appointment shall be served upon the guardian, the ward, and such other persons as the court may determine.
(2)
The monitor may investigate, seek information, examine documents, or interview the ward and shall report to the court his or her findings. The report shall be verified and shall be served on the guardian, the ward, and such other persons as the court may determine.
(3)
If it appears from the monitor’s report that further action by the court to protect the interests of the ward is necessary, the court shall, after a hearing with notice, enter any order necessary to protect the ward or the ward’s estate, including amending the plan, requiring an accounting, ordering production of assets, freezing assets, suspending a guardian, or initiating proceedings to remove a guardian.
(4)
Unless otherwise prohibited by law, a monitor may be allowed a reasonable fee as determined by the court and paid from the property of the ward. No full-time state, county, or municipal employee or officer shall be paid a fee for such investigation and report. If the court finds the motion for court monitor to have been filed in bad faith, the costs of the proceeding, including attorney’s fees, may be assessed against the movant.
(5)
The court may appoint the office of criminal conflict and civil regional counsel as monitor if the ward is indigent.
F.S. 744.108 Guardian and attorney fees and expenses.
(1)
A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward’s behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.
(2)
When fees for a guardian or an attorney are submitted to the court for determination, the court shall consider the following criteria:
(a)
The time and labor required;
(b)
The novelty and difficulty of the questions involved and the skill required to perform the services properly;
(c)
The likelihood that the acceptance of the particular employment will preclude other employment of the person;
(d)
The fee customarily charged in the locality for similar services;
(e)
The nature and value of the incapacitated person’s property, the amount of income earned by the estate, and the responsibilities and potential liabilities assumed by the person;
(f)
The results obtained;
(g)
The time limits imposed by the circumstances;
(h)
The nature and length of the relationship with the incapacitated person; and
(i)
The experience, reputation, diligence, and ability of the person performing the service.
(3)
In awarding fees to attorney guardians, the court must clearly distinguish between fees and expenses for legal services and fees and expenses for guardian services and must have determined that no conflict of interest exists.
(4)
Fees for legal services may include customary and reasonable charges for work performed by legal assistants employed by and working under the direction of the attorney.
(5)
All petitions for guardian and attorney fees and expenses must be accompanied by an itemized description of the services performed for the fees and expenses sought to be recovered.
(6)
A petition for fees or expenses may not be approved without prior notice to the guardian and to the ward, unless the ward is a minor or is totally incapacitated.
(7)
A petition for fees shall include the period covered and the total amount of all prior fees paid or costs awarded to the petitioner in the guardianship proceeding currently before the court.
(8)
When court proceedings are instituted to review or determine a guardian’s or an attorney’s fees under subsection (2), such proceedings are part of the guardianship administration process and the costs, including costs and attorney fees for the guardian’s attorney, an attorney appointed under s. 744.331(2), or an attorney who has rendered services to the ward, shall be determined by the court and paid from the assets of the guardianship estate unless the court finds the requested compensation under subsection (2) to be substantially unreasonable.
(9)
The court may determine that a request for compensation by the guardian, the guardian’s attorney, a person employed by the guardian, an attorney appointed under s. 744.331(2), or an attorney who has rendered services to the ward, is reasonable without receiving expert testimony. A person or party may offer expert testimony for or against a request for compensation after giving notice to interested persons. Reasonable expert witness fees shall be awarded by the court and paid from the assets of the guardianship estate using the standards in subsection (8).
F.S. 744.109 Records.
(1)
All hearings on appointment of a guardian; adjudication of incapacity; modification, termination, or revocation of the adjudication of incapacity; or restoration of capacity must be electronically or stenographically recorded.
(2)
If an appeal is taken from any of these proceedings, a transcript must be furnished to an indigent ward at public expense.
F.S. 744.301 Natural guardians.
(1)
The parents jointly are the natural guardians of their own children and of their adopted children, during minority, unless the parents’ parental rights have been terminated pursuant to chapter 39. If a child is the subject of any proceeding under chapter 39, the parents may act as natural guardians under this section unless the court division with jurisdiction over guardianship matters finds that it is not in the child’s best interests. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians. If the marriage is dissolved and neither parent is given parental responsibility for the child, neither may act as natural guardian of the child. The mother of a child born out of wedlock and a father who has established paternity under s. 742.011 or s. 742.10 are the natural guardians of the child and are entitled and subject to the rights and responsibilities of parents. If a father has not established paternity under s. 742.011 or s. 742.10(1), the mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.
(2)
Except as otherwise provided in this chapter, on behalf of any of their minor children, and without appointment, authority, or bond if the amounts received in the aggregate do not exceed $15,000, natural guardians may:
(a)
Settle and consummate a settlement of any claim or cause of action accruing to any of their minor children for damages to the person or property of any minor children;
(b)
Collect, receive, manage, and dispose of the proceeds of any settlement;
(c)
Collect, receive, manage, and dispose of any real or personal property distributed from an estate or trust;
(d)
Collect, receive, manage, and dispose of and make elections regarding the proceeds from a life insurance policy or annuity contract payable to, or otherwise accruing to the benefit of, the child; and
(e)
Collect, receive, manage, dispose of, and make elections regarding the proceeds of any benefit plan as defined in s. 710.102, of which the minor is a beneficiary, participant, or owner.
(3)
In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.
(a)
As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:
1.
The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and
2.
The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.
(b)
To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:
NOTICE TO THE MINOR CHILD’S
NATURAL GUARDIAN
READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT, EVEN IF
(name of released party or parties)
USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM
(name of released party or parties)
IN A LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND
(name of released party or parties)
HAS THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.
(c)
If a waiver or release complies with paragraph (b) and waives no more than allowed under this subsection, there is a rebuttable presumption that the waiver or release is valid and that any injury or damage to the minor child arose from the inherent risk involved in the activity.
1.
To rebut the presumption that the waiver or release is valid, a claimant must demonstrate by a preponderance of the evidence that the waiver or release does not comply with this subsection.
2.
To rebut the presumption that the injury or damage to the minor child arose from an inherent risk involved in the activity, a claimant must demonstrate by clear and convincing evidence that the conduct, condition, or other cause resulting in the injury or damage was not an inherent risk of the activity.
3.
If a presumption under this paragraph is rebutted, liability and compensatory damages must be established by a preponderance of the evidence.
(d)
Nothing in this subsection limits the ability of natural guardians, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a noncommercial activity provider, or its owners, affiliates, employees, or agents, to the extent authorized by common law.
(4)
All instruments executed by a natural guardian for the benefit of the ward under the powers specified in this section are binding on the ward. The natural guardian may not, without a court order, use the property of the ward for the guardian’s benefit or to satisfy the guardian’s support obligation to the ward.
F.S. 744.304 Standby guardianship.
(1)
Upon a petition by the natural guardians or a guardian appointed under s. 744.3021, the court may appoint a standby guardian of the person or property of a minor. The court may also appoint an alternate to the guardian to act if the standby guardian does not serve or ceases to serve after appointment. Notice of a hearing on the petition must be served on the parents, natural or adoptive, and on any guardian currently serving unless the notice is waived in writing by them or waived by the court for good cause shown.
(2)
Upon petition of a currently serving guardian, a standby guardian of the person or property of an incapacitated person may be appointed by the court. Notice of the hearing shall be served on the ward’s next of kin.
(3)
The standby guardian or alternate shall be empowered to assume the duties of guardianship immediately on the death, removal, or resignation of the guardian of a minor, or on the death or adjudication of incapacity of the last surviving natural guardian of a minor, or upon the death, removal, or resignation of the guardian for an adult. The guardian of the ward’s property may not be empowered to deal with the ward’s property, other than to safeguard it, before issuance of letters of guardianship. If the ward is over the age of 18 years, the court shall conduct a hearing as provided in s. 744.331 before confirming the appointment of the standby guardian, unless the ward has previously been found to be incapacitated.
(4)
Within 20 days after assumption of duties as guardian, a standby guardian shall petition for confirmation of appointment. If the court finds the standby guardian to be qualified to serve as guardian under ss. 744.309 and 744.312, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347, shall file a bond, and shall submit to a credit and a criminal history record check as set forth in s. 744.3135, if required. Letters of guardianship must then be issued in the manner provided in s. 744.345.
(5)
After the assumption of duties by a standby guardian, the court shall have jurisdiction over the guardian and the ward.
F.S. 744.306 Foreign guardians.
(1)
When the residence of a ward of a foreign guardian is moved to this state, the guardian shall, within 60 days after such change of residence, file the authenticated order of her or his appointment with the clerk of the court in the county where the ward resides. Such order shall be recognized and given full faith and credit in the courts of this state. The guardian and the ward are subject to this chapter.
(2)
A guardian appointed in any state, territory, or country may maintain or defend any action in this state as a representative of her or his ward.
(3)
Debtors who have received no written demand for payment from a guardian appointed in this state within 60 days after the appointment of a guardian, curator, conservator, or committee in any state, territory, or country other than this state, and whose property in this state is subject to a mortgage or other lien securing the debt held by the foreign guardian, curator, conservator, or committee, may pay the debt to the foreign guardian, curator, conservator, or committee after the expiration of 60 days from the date of her or his appointment. A satisfaction of the mortgage or lien, executed after the 60 days have expired by the foreign guardian, curator, conservator, or committee, with an authenticated copy of the letters or other evidence of authority of the foreign guardian, curator, conservator, or committee attached, may be recorded in the public records of this state and shall constitute an effective discharge of the mortgage or lien, irrespective of whether the debtor had received written demand before paying the debt.
(4)
All persons indebted to a ward, or having possession of personal property belonging to a ward, who have received no written demand for payment of the indebtedness or the delivery of the property from a guardian appointed in this state are authorized to pay the indebtedness or to deliver the personal property to the foreign guardian, curator, conservator, or committee after the expiration of the 60 days from the date of her or his appointment.
F.S. 744.307 Foreign guardian may manage the property of nonresident ward.
(1)
A guardian of the property of a nonresident ward, duly appointed by a court of another state, territory, or country, who desires to manage any part or all of the property of the ward located in this state, may file a petition showing his or her appointment, describing the property, stating its estimated value, and showing the indebtedness, if any, existing against the ward in this state, to the best of the guardian’s knowledge and belief.
(2)
The guardian shall designate a resident agent as required by the Florida Probate Rules.
(3)
The guardian shall file authenticated copies of his or her letters of guardianship or other authority and of his or her bond or other security. The court shall determine if the foreign bond or other security is sufficient to guarantee the faithful management of the ward’s property in this state. The court may require a new guardian’s bond in this state in the amount it deems necessary and conditioned for the proper management and application of the property of the ward coming into the custody of the guardian in this state.
(4)
Thereafter, the guardianship shall be governed by the law concerning guardianships.
F.S. 744.308 Resident guardian of the property of nonresident ward.
(1)
The court may appoint a person qualified under s. 744.309 as guardian of a nonresident ward’s property upon the petition of a foreign guardian, next of kin, or creditor of the ward, regardless of whether he or she has a foreign guardian or not.
(2)
The petition for the appointment of a guardian for the property of a nonresident ward shall be in writing and shall be prepared in accordance with the requirements of s. 744.334.
(3)
If it is alleged that the incapacity is due to mental or physical incapacity, the petition shall be accompanied by an authenticated copy of the adjudication of incapacity from the qualified authorities in the state, territory, or country where the incapacitated person is domiciled and shall state whether the incapacitated person is in the custody of any person or institution and, if so, the name and post office address of the custodian. The adjudication shall constitute prima facie proof of the incapacity.
(4)
If the question about the mental or physical incapacity of a nonresident is presented while the nonresident is temporarily residing in this state and he or she is not under an adjudication of incapacity made in some other state, territory, or country, the procedure for the appointment of a guardian of the nonresident’s property shall be the same as though he or she were a resident of this state.
(5)
When the ground for the appointment of a guardian is incapacity for which the person has been adjudicated in another state, territory, or country, notice of the hearing shall be served personally or by registered mail on the ward and the ward’s next of kin and legal custodian, if any, at least 20 days before the hearing.
(6)
In the appointment of the guardian, the court shall be governed by s. 744.312.
(7)
The duties, powers, and liabilities for the custody, control, management, and disposition of the ward’s property and removal, accounting, and discharge shall be governed by the law applicable to guardians of property of resident wards.
F.S. 744.309 Who may be appointed guardian of a resident ward.
(1)
RESIDENT.
—
(a)
Any resident of this state who is sui juris and is 18 years of age or older is qualified to act as guardian of a ward.
(b)
No judge shall act as guardian after this law becomes effective, except when he or she is related to the ward by blood, marriage, or adoption, or has maintained a close relationship with the ward or the ward’s family, and serves without compensation.
(2)
NONRESIDENT.
—
A nonresident of the state may serve as guardian of a resident ward if he or she is:
(a)
Related by lineal consanguinity to the ward;
(b)
A legally adopted child or adoptive parent of the ward;
(c)
A spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone related by lineal consanguinity to any such person; or
(d)
The spouse of a person otherwise qualified under this section.
(3)
DISQUALIFIED PERSONS.
—
No person who has been convicted of a felony or who, from any incapacity or illness, is incapable of discharging the duties of a guardian, or who is otherwise unsuitable to perform the duties of a guardian, shall be appointed to act as guardian. Further, no person who has been judicially determined to have committed abuse, abandonment, or neglect against a child as defined in s. 39.01 or s. 984.03(1), (2), and (24), or who has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under s. 435.04 or similar statute of another jurisdiction, shall be appointed to act as a guardian. Except as provided in subsection (5) or subsection (6), a person who provides substantial services to the proposed ward in a professional or business capacity, or a creditor of the proposed ward, may not be appointed guardian and retain that previous professional or business relationship. A person may not be appointed a guardian if he or she is in the employ of any person, agency, government, or corporation that provides service to the proposed ward in a professional or business capacity, except that a person so employed may be appointed if he or she is the spouse, adult child, parent, or sibling of the proposed ward or the court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the proposed ward’s best interest. The court may not appoint a guardian in any other circumstance in which a conflict of interest may occur.
(4)
TRUST COMPANY, STATE BANK OR SAVINGS ASSOCIATION, OR NATIONAL BANK OR FEDERAL SAVINGS AND LOAN ASSOCIATION.
—
A trust company, a state banking corporation or state savings association authorized and qualified to exercise fiduciary powers in this state, or a national banking association or federal savings and loan association authorized and qualified to exercise fiduciary powers in this state may act as guardian of the property of the ward.
(5)
NONPROFIT CORPORATE GUARDIAN.
—
A nonprofit corporation organized for religious or charitable purposes and existing under the laws of this state may be appointed guardian for a ward. If the nonprofit corporate guardian charges fees against the assets or property of the ward for its services, the corporation must employ at least one professional guardian.
(6)
HEALTH CARE PROVIDER.
—
A provider of health care services to the ward, whether direct or indirect, may not be appointed the guardian of the ward, unless the court specifically finds that there is no conflict of interest with the ward’s best interests.
(7)
FOR-PROFIT CORPORATE GUARDIAN.
—
A for-profit corporate guardian existing under the laws of this state is qualified to act as guardian of a ward if the entity is qualified to do business in the state, is wholly owned by the person who is the circuit’s public guardian in the circuit where the corporate guardian is appointed, has met the registration requirements of s. 744.2002, and posts and maintains a bond or insurance policy under paragraph (a).
(a)
The for-profit corporate guardian must meet one of the following requirements:
1.
Post and maintain a blanket fiduciary bond of at least $250,000 with the clerk of the circuit court in the county in which the corporate guardian has its principal place of business. The corporate guardian shall provide proof of the fiduciary bond to the clerks of each additional circuit court in which he or she is serving as a guardian. The bond must cover all wards for whom the corporation has been appointed as a guardian at any given time. The liability of the provider of the bond is limited to the face value of the bond, regardless of the number of wards for whom the corporation is acting as a guardian. The terms of the bond must cover the acts or omissions of each agent or employee of the corporation who has direct contact with the ward or access to the assets of the guardianship. The bond must be payable to the Governor and his or her successors in office and be conditioned on the faithful performance of all duties of a guardian under this chapter. The bond is in lieu of and not in addition to the bond required under s. 744.2003 but is in addition to any bonds required under s. 744.351. The expenses incurred to satisfy the bonding requirements of this section may not be paid with the assets of any ward; or
2.
Maintain a liability insurance policy that covers any losses sustained by the guardianship caused by errors, omissions, or any intentional misconduct committed by the corporation’s officers or agents. The policy must cover all wards for whom the corporation is acting as a guardian for losses up to $250,000. The terms of the policy must cover acts or omissions of each agent or employee of the corporation who has direct contact with the ward or access to the assets of the guardianship. The corporate guardian shall provide proof of the policy to the clerk of each circuit court in which he or she is serving as a guardian.
(b)
A for-profit corporation appointed as guardian before July 1, 2015, is also qualified to serve as a guardian in the particular guardianships in which the corporation has already been appointed as guardian.
F.S. 744.312 Considerations in appointment of guardian.
(1)
If the person designated is qualified to serve pursuant to s. 744.309, the court shall appoint any standby guardian or preneed guardian, unless the court determines that appointing such person is contrary to the best interests of the ward.
(2)
If a guardian cannot be appointed under subsection (1), the court may appoint any person who is fit and proper and qualified to act as guardian, whether related to the ward or not. The court shall give preference to the appointment of a person who:
(a)
Is related by blood or marriage to the ward;
(b)
Has educational, professional, or business experience relevant to the nature of the services sought to be provided;
(c)
Has the capacity to manage the financial resources involved; or
(d)
Has the ability to meet the requirements of the law and the unique needs of the individual case.
(3)
The court shall also:
(a)
Consider the wishes expressed by an incapacitated person as to who shall be appointed guardian.
(b)
Consider the preference of a minor who is age 14 or over as to who should be appointed guardian.
(c)
Consider any person designated as guardian in any will in which the ward is a beneficiary.
(d)
Consider the wishes of the ward’s next of kin, when the ward cannot express a preference.
(e)
Inquire into and consider potential disqualifications under s. 744.309 and potential conflicts of interest under s. 744.446.
(4)
Except when a standby guardian or a preneed guardian is appointed by the court:
(a)
In each case when a court appoints a professional guardian and does not use a rotation system for such appointment, the court must make specific findings of fact stating why the person was selected as guardian in the particular matter involved. The findings must reference each of the factors listed in subsections (2) and (3).
(b)
An emergency temporary guardian who is a professional guardian may not be appointed as the permanent guardian of a ward unless one of the next of kin of the alleged incapacitated person or the ward requests that the professional guardian be appointed as permanent guardian. The court may waive the limitations of this paragraph if the special requirements of the guardianship demand that the court appoint a guardian because he or she has special talent or specific prior experience. The court must make specific findings of fact that justify waiving the limitations of this paragraph.
(5)
The court may not give preference to the appointment of a person under subsection (2) based solely on the fact that such person was appointed by the court to serve as an emergency temporary guardian.
F.S. 744.331 Procedures to determine incapacity.
(1)
NOTICE OF PETITION TO DETERMINE INCAPACITY.
—
Notice of the filing of a petition to determine incapacity and a petition for the appointment of a guardian if any and copies of the petitions must be served on and read to the alleged incapacitated person. The notice and copies of the petitions must also be given to the attorney for the alleged incapacitated person, and served upon all next of kin identified in the petition. The notice must state the time and place of the hearing to inquire into the capacity of the alleged incapacitated person and that an attorney has been appointed to represent the person and that, if she or he is determined to be incapable of exercising certain rights, a guardian will be appointed to exercise those rights on her or his behalf.
(2)
ATTORNEY FOR THE ALLEGED INCAPACITATED PERSON.
—
(a)
When a court appoints an attorney for an alleged incapacitated person, the court must appoint the office of criminal conflict and civil regional counsel or a private attorney as prescribed in s. 27.511(6). A private attorney must be one who is included in the attorney registry compiled pursuant to s. 27.40. Appointments of private attorneys must be made on a rotating basis, taking into consideration conflicts arising under this chapter.
(b)
The court shall appoint an attorney for each person alleged to be incapacitated in all cases involving a petition for adjudication of incapacity. The alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court.
(c)
Any attorney representing an alleged incapacitated person may not serve as guardian of the alleged incapacitated person or as counsel for the guardian of the alleged incapacitated person or the petitioner.
(d)
An attorney seeking to be appointed by a court for incapacity and guardianship proceedings must have completed a minimum of 8 hours of education in guardianship. A court may waive the initial training requirement for an attorney who has served as a court-appointed attorney in incapacity proceedings or as an attorney of record for guardians for not less than 3 years. This training requirement does not apply to a court-appointed attorney employed by an office of criminal conflict and civil regional counsel.
(3)
EXAMINING COMMITTEE.
—
(a)
Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, a gerontologist, a psychiatrist, a physician, an advanced practice registered nurse, a registered nurse, a licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or any other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion. One of three members of the committee must have knowledge of the type of incapacity alleged in the petition. Unless good cause is shown, the attending or family physician may not be appointed to the committee. If the attending or family physician is available for consultation, the committee must consult with the physician. Members of the examining committee may not be related to or associated with one another, with the petitioner, with counsel for the petitioner or the proposed guardian, or with the person alleged to be totally or partially incapacitated. A member may not be employed by any private or governmental agency that has custody of, or furnishes, services or subsidies, directly or indirectly, to the person or the family of the person alleged to be incapacitated or for whom a guardianship is sought. A petitioner may not serve as a member of the examining committee. Members of the examining committee must be able to communicate, either directly or through an interpreter, in the language that the alleged incapacitated person speaks or to communicate in a medium understandable to the alleged incapacitated person if she or he is able to communicate. The clerk of the court shall send notice of the appointment to each person appointed no later than 3 days after the court’s appointment.
(b)
A person who has been appointed to serve as a member of an examining committee to examine an alleged incapacitated person may not thereafter be appointed as a guardian for the person who was the subject of the examination.
(c)
Each person appointed to an examining committee must file an affidavit with the court stating that he or she has completed the required courses or will do so no later than 4 months after his or her initial appointment. Each year, the chief judge of the circuit must prepare a list of persons qualified to be members of an examining committee.
(d)
A member of an examining committee must complete a minimum of 4 hours of initial training. The person must complete 2 hours of continuing education during each 2-year period after the initial training. The initial training and continuing education program must be developed under the supervision of the Office of Public and Professional Guardians, in consultation with the Florida Conference of Circuit Court Judges; the Elder Law and the Real Property, Probate and Trust Law sections of The Florida Bar; and the Florida State Guardianship Association. The court may waive the initial training requirement for a person who has served for not less than 5 years on examining committees. If a person wishes to obtain his or her continuing education on the Internet or by watching a video course, the person must first obtain the approval of the chief judge before taking an Internet or video course.
(e)
Each member of the examining committee shall examine the person. Each examining committee member must determine the alleged incapacitated person’s ability to exercise those rights specified in s. 744.3215. An examining committee member may allow a person to assist in communicating with the alleged incapacitated person when requested by the court-appointed counsel for the alleged incapacitated person and shall identify the person who provided assistance and describe the nature and method of assistance provided in his or her report. In addition to the examination, each examining committee member must have access to, and may consider, previous examinations of the person, including, but not limited to, habilitation plans, school records, and psychological and psychosocial reports voluntarily offered for use by the alleged incapacitated person. Each member of the examining committee must file his or her report with the clerk of the court within 15 days after appointment.
(f)
The examination of the alleged incapacitated person must include a comprehensive examination, a report of which shall be filed by each examining committee member as part of his or her written report. The comprehensive examination report should be an essential element, but not necessarily the only element, used in making a capacity and guardianship decision. The comprehensive examination must include, if indicated:
1.
A physical examination;
2.
A mental health examination; and
3.
A functional assessment.
If any of these three aspects of the examination is not indicated or cannot be accomplished for any reason, the written report must explain the reasons for its omission.
(g)
Each committee member’s written report must include:
1.
To the extent possible, a diagnosis, prognosis, and recommended course of treatment.
2.
An evaluation of the alleged incapacitated person’s ability to retain her or his rights, including, without limitation, the rights to marry; vote; contract; manage or dispose of property; have a driver license; determine her or his residence; consent to medical treatment; and make decisions affecting her or his social environment.
3.
The results of the comprehensive examination and the committee member’s assessment of information provided by the attending or family physician, if any.
4.
A description of any matters with respect to which the person lacks the capacity to exercise rights, the extent of that incapacity, and the factual basis for the determination that the person lacks that capacity.
5.
The names of all persons present during the time the committee member conducted his or her examination. If a person other than the person who is the subject of the examination supplies answers posed to the alleged incapacitated person, the report must include the response and the name of the person supplying the answer.
6.
The signature of the committee member and the date and time the member conducted his or her examination.
(h)
Within 3 days after receipt of each examining committee member’s report, the clerk shall serve the report on the petitioner and the attorney for the alleged incapacitated person by electronic mail delivery or United States mail, and, upon service, shall file a certificate of service in the incapacity proceeding. The petitioner and the attorney for the alleged incapacitated person must be served with all reports at least 10 days before the hearing on the petition, unless the reports are not complete, in which case the petitioner and attorney for the alleged incapacitated person may waive the 10 day requirement and consent to the consideration of the report by the court at the adjudicatory hearing. If such service is not timely effectuated, the petitioner or the alleged incapacitated person may move for a continuance of the hearing.
(i)
The petitioner and the alleged incapacitated person may object to the introduction into evidence of all or any portion of the examining committee members’ reports by filing and serving a written objection on the other party no later than 5 days before the adjudicatory hearing. The objection must state the basis upon which the challenge to admissibility is made. If an objection is timely filed and served, the court shall apply the rules of evidence in determining the reports’ admissibility. For good cause shown, the court may extend the time to file and serve the written objection.
(4)
DISMISSAL OF PETITION.
—
If a majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the court shall dismiss the petition.
(5)
ADJUDICATORY HEARING.
—
(a)
Upon appointment of the examining committee, the court shall set the date upon which the petition will be heard. The adjudicatory hearing must be conducted at least 10 days, which time period may be waived, but no more than 30 days, after the filing of the last filed report of the examining committee members, unless good cause is shown. The adjudicatory hearing must be conducted at the time and place specified in the notice of hearing and in a manner consistent with due process.
(b)
The alleged incapacitated person must be present at the adjudicatory hearing, unless waived by the alleged incapacitated person or the person’s attorney or unless good cause can be shown for her or his absence. Determination of good cause rests in the sound discretion of the court.
(c)
In the adjudicatory hearing on a petition alleging incapacity, the partial or total incapacity of the person must be established by clear and convincing evidence.
(6)
ORDER DETERMINING INCAPACITY.
—
If, after making findings of fact on the basis of clear and convincing evidence, the court finds that a person is incapacitated with respect to the exercise of a particular right, or all rights, the court shall enter a written order determining such incapacity. In determining incapacity, the court shall consider the person’s unique needs and abilities and may only remove those rights that the court finds the person does not have the capacity to exercise. A person is determined to be incapacitated only with respect to those rights specified in the order.
(a)
The court shall make the following findings:
1.
The exact nature and scope of the person’s incapacities;
2.
The exact areas in which the person lacks capacity to make informed decisions about care and treatment services or to meet the essential requirements for her or his physical or mental health or safety;
3.
The specific legal disabilities to which the person is subject; and
4.
The specific rights that the person is incapable of exercising.
(b)
When an order determines that a person is incapable of exercising delegable rights, the court must consider and find whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person. A guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person. If the court finds there is not an alternative to guardianship that sufficiently addresses the problems of the incapacitated person, a guardian must be appointed to exercise the incapacitated person’s delegable rights.
(c)
In determining that a person is totally incapacitated, the order must contain findings of fact demonstrating that the individual is totally without capacity to care for herself or himself or her or his property.
(d)
An order adjudicating a person to be incapacitated constitutes proof of such incapacity until further order of the court.
(e)
After the order determining that the person is incapacitated has been filed with the clerk, it must be served on the incapacitated person. The person is deemed incapacitated only to the extent of the findings of the court. The filing of the order is notice of the incapacity. An incapacitated person retains all rights not specifically removed by the court.
(f)
Upon the filing of a verified statement by an interested person stating:
1.
That he or she has a good faith belief that the alleged incapacitated person’s trust, trust amendment, or durable power of attorney is invalid; and
2.
A reasonable factual basis for that belief,
the trust, trust amendment, or durable power of attorney shall not be deemed to be an alternative to the appointment of a guardian. The appointment of a guardian does not limit the court’s power to determine that certain authority granted by a durable power of attorney is to remain exercisable by the agent.
(7)
FEES.
—
(a)
The examining committee and any attorney appointed under subsection (2) are entitled to reasonable fees to be determined by the court.
(b)
The fees awarded under paragraph (a) shall be paid by the guardian from the property of the ward or, if the ward is indigent, by the state. The state shall have a creditor’s claim against the guardianship property for any amounts paid under this section. The state may file its claim within 90 days after the entry of an order awarding attorney ad litem fees. If the state does not file its claim within the 90-day period, the state is thereafter barred from asserting the claim. Upon petition by the state for payment of the claim, the court shall enter an order authorizing immediate payment out of the property of the ward. The state shall keep a record of the payments.
(c)
If the petition is dismissed or denied:
1.
The fees of the examining committee shall be paid upon court order as expert witness fees under s. 29.004(6).
2.
Costs and attorney fees of the proceeding may be assessed against the petitioner if the court finds the petition to have been filed in bad faith. The petitioner shall also reimburse the state courts system for any amounts paid under subparagraph 1. upon such a finding.
F.S. 744.334 Petition for appointment of guardian or professional guardian; contents.
(1)
Every petition for the appointment of a guardian shall be verified by the petitioner and shall contain statements, to the best of petitioner’s knowledge and belief, showing the name, age, residence, and post office address of the alleged incapacitated person or minor; the nature of her or his incapacity, if any; the extent of guardianship desired, either plenary or limited; the residence and post office address of the petitioner; the names and addresses of the next of kin of the alleged incapacitated person or minor, if known to the petitioner; the name of the proposed guardian and the reasons why she or he should be appointed guardian; whether the proposed guardian is a professional guardian; the relationship and previous relationship of the proposed guardian to the alleged incapacitated person or minor; any other type of guardianship under part III of this chapter or alternatives to guardianship that the alleged incapacitated person or minor has designated or is in currently or has been in previously; the reasons why a guardian advocate under s. 744.3085 or other alternatives to guardianship are insufficient to meet the needs of the alleged incapacitated person or minor; and the nature and value of property subject to the guardianship. The petition must state whether a willing and qualified guardian cannot be located. As used in this subsection, the term “alternatives to guardianship” means an advance directive as defined in s. 765.101, a durable power of attorney as provided in chapter 709, a representative payee under 42 U.S.C. s. 1007, or a trust instrument as defined in s. 736.0103.
(2)
If the petitioner is a professional guardian, she or he may not petition for her or his own appointment unless the petitioner is a relative of the alleged incapacitated person or minor. For purposes of this subsection, the term “relative” means an individual who would qualify to serve as a nonresident guardian under s. 744.309(2). This subsection does not apply to a public guardian appointed under s. 744.2006 who seeks appointment as a guardian of a person of limited financial means and whose compensation as guardian for such person would be paid from the Office of Public and Professional Guardians or any local government.
F.S. 744.341 Voluntary guardianship.
(1)
Without adjudication of incapacity, the court shall appoint a guardian of the property of a resident or nonresident person who, though mentally competent, is incapable of the care, custody, and management of his or her estate by reason of age or physical infirmity and who has voluntarily petitioned for the appointment. The petition shall be accompanied by a certificate of a licensed physician specifying that he or she has examined the petitioner and that the petitioner is competent to understand the nature of the guardianship and his or her delegation of authority. Notice of hearing on any petition for appointment and for authority to act shall be given to the petitioner and to any person to whom the petitioner requests that notice be given. Such request may be made in the petition for appointment of guardian or in a subsequent written request for notice signed by the petitioner.
(2)
If requested in the petition for appointment of a guardian brought under this section, the court may direct the guardian to take possession of less than all of the ward’s property and of the rents, income, issues, and profits from it. In such case, the court shall specify in its order the property to be included in the guardianship estate, and the duties and responsibilities of the guardian appointed under this section will extend only to such property.
(3)
Unless the voluntary guardianship is limited pursuant to subsection (2), any guardian appointed under this section has the same duties and responsibilities as are provided by law for plenary guardians of the property, generally.
(4)
A guardian must include in the annual report filed with the court a certificate from a licensed physician who examined the ward not more than 90 days before the annual report is filed with the court. The certificate must certify that the ward is competent to understand the nature of the guardianship and of the ward’s authority to delegate powers to the voluntary guardian.
(5)
A voluntary guardianship may be terminated by the ward by filing a notice with the court that the voluntary guardianship is terminated. A copy of the notice must be served on all interested persons.
F.S. 744.342 Minors; guardianship.
Upon petition, the court may appoint a guardian for a minor without appointing an examining committee or conducting an adjudicatory hearing pursuant to s. 744.331.
F.S. 744.345 Letters of guardianship.
Letters of guardianship shall be issued to the guardian and shall specify whether the guardianship pertains to the person, or the property, or both, of the ward. The letters must state whether the guardianship is plenary or limited, and, if limited, the letters must state the powers and duties of the guardian. The letters shall state whether or not and to what extent the guardian is authorized to act on behalf of the ward with regard to any advance directive previously executed by the ward.
F.S. 744.347 Oath of guardian.
Before exercising his or her authority as guardian, every guardian shall take an oath that he or she will faithfully perform his or her duties as guardian. This oath is not jurisdictional.
F.S. 744.351 Bond of guardian.
(1)
Before exercising his or her authority as guardian, every person appointed a guardian of the property of a ward in this state shall file a bond with surety as prescribed in s. 45.011 to be approved by the clerk. The bond shall be payable to the Governor of the state and the Governor’s successors in office, conditioned on the faithful performance of all duties by the guardian. In form the bond shall be joint and several. When the petitioner or guardian presents compelling reasons, the court may waive a bond or require the use of a designated financial institution as defined in s. 655.005(1).
(2)
When the sureties on a bond are natural persons, the guardian shall be required to file with the annual guardianship report proof satisfactory to the court that the sureties are alive and solvent.
(3)
The penal sum of a guardian’s bond shall be fixed by the court, and it must be in an amount not less than the full amount of the cash on hand and on deposit belonging to the ward and subject to the control of the guardian, plus the value of the notes and bonds owned by the ward that are payable to bearer, and plus the value of all other intangible personal property, in whatever form, owned by the ward which has a market value which readily can be fixed and which intangible personal property readily can be traded for cash or its equivalent.
(4)
For good cause, the court may require, or increase or reduce the amount of, bond or change or release the surety.
(5)
Financial institutions as defined in s. 744.309(4), other than a trust company operating under chapter 662 which is not a licensed family trust company or foreign licensed family trust company, and public guardians authorized by law to be guardians are not required to file bonds.
(6)
When it is expedient in the judgment of any court having jurisdiction of any guardianship property, because the size of the bond required of the guardian is burdensome, or for other cause, the court may order, in lieu of a bond or in addition to a lesser bond, that the guardian place all or part of the property of the ward in a designated financial institution under the same conditions and limitations as are contained in s. 69.031. A designated financial institution shall also include a dealer as defined in s. 517.021 if the dealer is a member of the Security Investment Protection Corporation and is doing business in the state.
F.S. 744.354 Validity of bond.
No bond executed by any guardian shall be invalid because of an informality in it or because of an informality or illegality in the appointment of the guardian. The bond shall have the same force and effect as if the bond had been executed in proper form and the appointment had been legally made.
F.S. 744.357 Liability of surety.
No surety for a guardian shall be charged beyond the property of the ward.
F.S. 744.358 Liability of a guardian.
(1)
A guardian is not liable, solely because of the guardianship, for the debts, contracts, or torts of her or his ward.
(2)
In dealing with the ward’s property, a guardian is subject to the standards set forth in s. 518.11.
F.S. 744.359 Abuse, neglect, or exploitation by a guardian.
(1)
A guardian may not abuse, neglect, or exploit a ward.
(2)
A guardian has committed exploitation when the guardian:
(a)
Commits fraud in obtaining appointment as a guardian;
(b)
Abuses his or her powers; or
(c)
Wastes, embezzles, or intentionally mismanages the assets of the ward.
(3)
A person who believes that a guardian is abusing, neglecting, or exploiting a ward shall report the incident to the central abuse hotline of the Department of Children and Families.
(4)
This section shall be interpreted in conformity with s. 825.103.
F.S. 744.361 Powers and duties of guardian.
(1)
The guardian of an incapacitated person is a fiduciary and may exercise only those rights that have been removed from the ward and delegated to the guardian. The guardian of a minor shall exercise the powers of a plenary guardian.
(2)
The guardian shall act within the scope of the authority granted by the court and as provided by law.
(3)
The guardian shall act in good faith.
(4)
A guardian may not act in a manner that is contrary to the ward’s best interests under the circumstances.
(5)
A guardian who has special skills or expertise, or is appointed in reliance upon the guardian’s representation that the guardian has special skills or expertise, shall use those special skills or expertise when acting on behalf of the ward.
(6)
The guardian shall file an initial guardianship report in accordance with s. 744.362.
(7)
The guardian shall file a guardianship report annually in accordance with s. 744.367.
(8)
The guardian of the person shall implement the guardianship plan.
(9)
When two or more guardians have been appointed, the guardians shall consult with each other.
(10)
A guardian who is given authority over any property of the ward shall:
(a)
Protect and preserve the property and invest it prudently as provided in chapter 518, apply it as provided in s. 744.397, and keep clear, distinct, and accurate records of the administration of the ward’s property.
(b)
Perform all other duties required of him or her by law.
(c)
At the termination of the guardianship, deliver the property of the ward to the person lawfully entitled to it.
(11)
The guardian shall observe the standards in dealing with the guardianship property that would be observed by a prudent person dealing with the property of another.
(12)
The guardian, if authorized by the court, shall take possession of all of the ward’s property and of the rents, income, issues, and profits from it, whether accruing before or after the guardian’s appointment, and of the proceeds arising from the sale, lease, or mortgage of the property or of any part. All of the property and the rents, income, issues, and profits from it are assets in the hands of the guardian for the payment of debts, taxes, claims, charges, and expenses of the guardianship and for the care, support, maintenance, and education of the ward or the ward’s dependents, as provided for under the terms of the guardianship plan or by law.
(13)
Recognizing that every individual has unique needs and abilities, a guardian who is given authority over a ward’s person shall, as appropriate under the circumstances:
(a)
Consider the expressed desires of the ward as known by the guardian when making decisions that affect the ward.
(b)
Allow the ward to maintain contact with family and friends unless the guardian believes that such contact may cause harm to the ward.
(c)
Not restrict the physical liberty of the ward more than reasonably necessary to protect the ward or another person from serious physical injury, illness, or disease.
(d)
Assist the ward in developing or regaining capacity, if medically possible.
(e)
Notify the court if the guardian believes that the ward has regained capacity and that one or more of the rights that have been removed should be restored to the ward.
(f)
To the extent applicable, make provision for the medical, mental, rehabilitative, or personal care services for the welfare of the ward.
(g)
To the extent applicable, acquire a clear understanding of the risks and benefits of a recommended course of health care treatment before making a health care decision.
(h)
Evaluate the ward’s medical and health care options, financial resources, and desires when making residential decisions that are best suited for the current needs of the ward.
(i)
Advocate on behalf of the ward in institutional and other residential settings and regarding access to home and community-based services.
(j)
When not inconsistent with the person’s goals, needs, and preferences, acquire an understanding of the available residential options and give priority to home and other community-based services and settings.
(14)
A professional guardian must ensure that each of the guardian’s wards is personally visited by the guardian or one of the guardian’s professional staff at least once each calendar quarter. During the personal visit, the guardian or the guardian’s professional staff person shall assess:
(a)
The ward’s physical appearance and condition.
(b)
The appropriateness of the ward’s current living situation.
(c)
The need for any additional services and the necessity for continuation of existing services, taking into consideration all aspects of social, psychological, educational, direct service, health, and personal care needs.
(d)
The nature and extent of visitation and communication with the ward’s family and friends.
This subsection does not apply to a professional guardian who has been appointed only as guardian of the property.
F.S. 744.362 Initial guardianship report.
(1)
Each guardian shall file with the court an initial guardianship report within 60 days after her or his letters of guardianship are signed. The initial guardianship report for a guardian of the property must consist of a verified inventory. The initial report for a guardian of the person must consist of an initial guardianship plan. The initial report shall be served on the ward, unless the ward is a minor under the age of 14 years or is totally incapacitated, and the attorney for the ward. Either the ward or the ward’s attorney may request a hearing concerning the adequacy of the report.
(2)
Review of the initial guardianship report and representation of the ward during an objection thereto, if any, shall be the appointed attorney’s final official action on behalf of the ward. Thereafter, the court-appointed attorney is no longer obligated to represent the ward.
F.S. 744.363 Initial guardianship plan.
(1)
The initial guardianship plan shall include all of the following:
(a)
The provision of medical, mental, or personal care services for the welfare of the ward.
(b)
The provision of social and personal services for the welfare of the ward.
(c)
The place and kind of residential setting best suited for the needs of the ward.
(d)
The application of health and accident insurance and any other private or governmental benefits to which the ward may be entitled to meet any part of the costs of medical, mental health, or related services provided to the ward.
(e)
Any physical and mental examinations necessary to determine the ward’s medical and mental health treatment needs.
(f)1.
A list of any preexisting:
a.
Orders not to resuscitate executed in accordance with s. 401.45(3) and the dates such orders were signed; or
b.
Advance directives as defined in s. 765.101 and the dates such directives were signed.
2.
For each item listed under subparagraph 1., the plan must state whether the order or directive has been revoked, modified, or suspended by the court.
(g)
A description of the steps taken to identify and locate a preexisting order not to resuscitate or advance directive.
(2)
The initial guardianship plan for an incapacitated person must be based on the recommendations of the examining committee’s examination, as incorporated into the order determining incapacity.
(3)
Unless the ward has been found to be totally incapacitated or is a minor under the age of 14 years, the initial guardianship plan must contain an attestation that the guardian has consulted with the ward and, to the extent reasonable, has honored the ward’s wishes consistent with the rights retained by the ward under the plan. To the maximum extent reasonable, the plan must be in accordance with the wishes of the ward.
(4)
The guardianship plan may not restrict the physical liberty of the ward more than reasonably necessary to protect the ward or others from serious physical injury, illness, or disease and to provide the ward with medical care and mental health treatment for the ward’s physical and mental health.
(5)
An initial guardianship plan continues in effect until it is amended or replaced by the approval of an annual guardianship plan, until the restoration of capacity or death of the ward, or until the ward, if a minor, reaches the age of 18 years. If there are significant changes in the capacity of the ward to meet the essential requirements for his or her health or safety, the guardian may file a petition to modify the guardianship plan and shall serve notice on all persons who received notice of the plan. At the hearing on such petition, the court may modify the guardianship plan and specify the effective date of such amendment.
(6)
In exercising his or her powers, the guardian shall recognize any rights retained by the ward.
F.S. 744.365 Verified inventory.
(1)
FILING.
—
A guardian of the property shall file a verified inventory of the ward’s property.
(2)
CONTENTS.
—
The verified inventory must include the following:
(a)
All property of the ward, real and personal, that has come into the guardian’s possession or knowledge, including a statement of all encumbrances, liens, and other secured claims on any item, any claims against the property, any cause of action accruing to the ward, and any trusts of which the ward is a beneficiary.
(b)
The location of the real and personal property in sufficient detail so that it may be clearly identified or located.
(c)
A description of all sources of income, including, without limitation, social security benefits and pensions.
(3)
CASH ASSETS.
—
Along with the verified inventory, the guardian must file a copy of the most current statement of all of the ward’s cash assets from all institutions where the cash is on deposit.
(4)
SAFE-DEPOSIT BOX.
—
(a)
The initial opening of any safe-deposit box of the ward must be conducted in the presence of an employee of the institution where the box is located. The inventory of the contents of the box also must be conducted in the presence of the employee, who must verify the contents of the box by signing a copy of the inventory. This safe-deposit box inventory shall be filed with the court within 10 days after the box is opened.
(b)
The guardian shall provide the ward with a copy of each signed safe-deposit box inventory unless the ward is a minor or has been adjudicated totally incapacitated or unless the order appointing the guardian states otherwise.
(c)
Nothing may be removed from the ward’s safe-deposit box without specific court approval.
(5)
RECORDS RETENTION.
—
(a)
The guardian shall maintain substantiating papers and records sufficient to demonstrate the accuracy of the initial inventory for a period of 3 years after her or his discharge. The substantiating papers need not be filed with the court but must be made available for inspection and review at such time and place and before such persons as the court may order.
(b)
As part of the substantiating papers, the guardian must identify by name, address, and occupation, the witness or witnesses, if any, who were present during the initial inventory of the ward’s personal property.
(6)
AUDIT FEE.
—
(a)
Where the value of the ward’s property exceeds $25,000, a guardian shall pay from the ward’s property to the clerk of the circuit court a fee of up to $85, from which the clerk shall remit $10 to the Department of Revenue for deposit into the General Revenue Fund, upon the filing of the verified inventory, for the auditing of the inventory. Upon petition by the guardian, the court may waive the auditing fee upon a showing of insufficient funds in the ward’s estate. Any guardian unable to pay the auditing fee may petition the court for waiver of the fee. The court may waive the fee after it has reviewed the documentation filed by the guardian in support of the waiver.
(b)
An audit fee may not be charged to any ward whose property has a value of less than $25,000.
F.S. 744.367 Duty to file annual guardianship report.
(1)
Unless the court requires filing on a calendar-year basis, each guardian of the person shall file with the court an annual guardianship plan within 90 days after the last day of the anniversary month that the letters of guardianship were signed, and the plan must cover the coming fiscal year, ending on the last day in such anniversary month. If the court requires calendar-year filing, the guardianship plan must be filed on or before April 1 of each year. The latest annual guardianship plan approved by the court will remain in effect until the court approves a subsequent plan.
(2)
Unless the court requires or authorizes filing on a fiscal-year basis, each guardian of the property shall file with the court an annual accounting on or before April 1 of each year. The annual accounting must cover the preceding calendar year. If the court authorizes or directs filing on a fiscal-year basis, the annual accounting must be filed on or before the first day of the fourth month after the end of the fiscal year.
(3)(a)
The annual guardianship report of a guardian of the property must consist of an annual accounting, and the annual guardianship report of a guardian of the person must consist of an annual guardianship plan. The annual guardianship report of a guardian of the property and the annual guardianship report of a guardian of the person must both include a declaration of all remuneration received by the guardian from any source for services rendered to or on behalf of the ward. As used in this paragraph, the term “remuneration” means any payment or other benefit made directly or indirectly, overtly or covertly, or in cash or in kind to the guardian.
(b)
The annual guardianship report must be served on the ward, unless the ward is a minor or is totally incapacitated, and on the attorney for the ward, if any. The guardian shall provide a copy to any other person as the court may direct.
(4)
Unless the ward is a minor or has been determined to be totally incapacitated, the guardian shall review a copy of the annual report with the ward, to the extent possible. Within 30 days after the annual report has been filed, any interested person, including the ward, may file written objections to any element of the report, specifying the nature of the objection.
(5)
If the guardian fails to timely file the annual guardianship report, the judge may impose sanctions which may include contempt, removal of the guardian, or other sanctions provided by law in s. 744.3685.
(6)
Notwithstanding any other requirement of this section or unless otherwise directed by the court, the guardian of the property may file the first annual accounting on either a fiscal-year or calendar-year basis. Unless the court directs otherwise, the guardian shall notify the court as to the guardian’s filing intention within 30 days from the date the guardian was issued the letter of guardianship. All subsequent annual accountings must be filed on the same accounting period as the first annual accounting unless the court authorizes or directs otherwise. The first accounting period must end within 1 year after the end of the month in which the letters of guardianship were issued to the guardian of the property.
F.S. 744.368 Responsibilities of the clerk of the circuit court.
(1)
In addition to the duty to serve as the custodian of the guardianship files, the clerk shall review each initial and annual guardianship report to ensure that it contains information about the ward addressing, as appropriate:
(a)
Physical and mental health care;
(b)
Personal and social services;
(c)
The residential setting;
(d)
The application of insurance, private benefits, and government benefits;
(e)
The physical and mental health examinations; and
(f)
The initial verified inventory or the annual accounting.
(2)
The clerk shall, within 30 days after the date of filing of the initial or annual report of the guardian of the person, complete his or her review of the report.
(3)
Within 90 days after the filing of the verified inventory and accountings by a guardian of the property, the clerk shall audit the verified inventory and the accountings. The clerk shall advise the court of the results of the audit.
(4)
The clerk shall report to the court when a report is not timely filed.
(5)
If the clerk has reason to believe further review is appropriate, the clerk may request and review records and documents that reasonably impact guardianship assets, including, but not limited to, the beginning inventory balance and any fees charged to the guardianship. As a part of this review, the clerk may conduct audits and may cause the initial and annual guardianship reports to be audited. The clerk shall advise the court of the results of any such audit. Any fee or cost incurred by the guardian in responding to the review or audit may not be paid or reimbursed by the ward’s assets if there is a finding of wrongdoing by the court.
(6)
If a guardian fails to produce records and documents to the clerk upon request, the clerk may request the court to enter an order pursuant to s. 744.3685(2) by filing an affidavit that identifies the records and documents requested and shows good cause as to why the documents and records requested are needed to complete the audit.
(7)
Upon application to the court supported by an affidavit pursuant to subsection (6), the clerk may issue subpoenas to nonparties to compel production of books, papers, and other documentary evidence. Before issuance of a subpoena by affidavit, the clerk must serve notice on the guardian and the ward, unless the ward is a minor or totally incapacitated, of the intent to serve subpoenas to nonparties.
(a)
The clerk must attach the affidavit and the proposed subpoena to the notice to the guardian and, if appropriate, to the ward, and must:
1.
State the time, place, and method for production of the documents or items, and the name and address of the person who is to produce the documents or items, if known, or, if not known, a general description sufficient to identify the person or the particular class or group to which the person belongs.
2.
Include a designation of the items to be produced.
3.
State that the person who will be asked to produce the documents or items has the right to object to the production under this section and that the person is not required to surrender the documents or items.
(b)
A copy of the notice and proposed subpoena may not be furnished to the person upon whom the subpoena is to be served.
(c)
If the guardian or ward serves an objection to production under this subsection within 10 days after service of the notice, the documents or items may not be required to be produced until resolution of the objection. If an objection is not made within 10 days after service of the notice, the clerk may issue the subpoena to the nonparty. The court may shorten the period within which a guardian or ward is required to file an objection upon a showing by the clerk by affidavit that the ward’s property is in imminent danger of being wasted, misappropriated, or lost unless immediate action is taken.
(8)
Within 10 business days after the court imposes any sanctions on a professional guardian, including, but not limited to, contempt of court or removal of the professional guardian, the clerk shall report such actions to the Office of Public and Professional Guardians.
F.S. 744.369 Judicial review of guardianship reports.
(1)
The court shall review the initial guardianship report within 60 days after the filing of the clerk’s report of findings to the court. The court shall review the annual guardianship report within 30 days after the filing of the clerk’s report of findings to the court.
(2)
The court may appoint a general or special magistrate to assist the court in its review function. The court may require the general or special magistrate to conduct random field audits.
(3)
If an initial or annual report is not timely filed, the court shall order the guardian to file the report or to show cause why the report has not been filed within the prescribed time. Service of the order and subsequent proceedings shall be governed by s. 744.3685.
(4)
The court must review the initial and annual guardianship report to determine that the report:
(a)
Meets the needs of the ward;
(b)
Authorizes the guardian to act only in areas in which an adult ward has been declared incapacitated; and
(c)
Conforms to all other requirements of the law.
(5)
Upon examining the initial or annual guardianship report, the court shall enter an order approving or disapproving the report. If the court disapproves the report, the court shall order the guardian to provide a revised report or proof of any item in the report to the court. The guardian shall do so within a reasonable amount of time set by court.
(6)
If the guardian fails to comply with the court order entered pursuant to subsection (5), the court shall take immediate action to compel compliance or to sanction the guardian after a hearing with appropriate notice to the ward, the ward’s counsel, if any, the guardian, and the ward’s next of kin.
(7)
If an objection has been filed to a report, the court shall set the matter for hearing and shall conduct the hearing within 30 days after the filing of the objection. After the hearing, the court shall enter a written order either approving, or ordering modifications to, the report. If an objection is found to be without merit, the court may assess costs and attorney’s fees against the person who made the objection.
(8)
The approved report constitutes the authority for the guardian to act in the forthcoming year. The powers of the guardian are limited by the terms of the report. The annual report may not grant additional authority to the guardian without a hearing, as provided for in s. 744.331, to determine that the ward is incapacitated to act in that matter. Unless the court orders otherwise, the guardian may continue to act under authority of the last-approved report until the forthcoming year’s report is approved.
F.S. 744.371 Relief to be granted.
If it appears from the annual guardianship report that:
(1)
The condition of the ward requires further examination;
(2)
Any change in the proposed care, maintenance, or treatment is needed;
(3)
The ward is qualified for restoration of some or all rights;
(4)
The condition or maintenance of the ward requires the performance or doing of any other thing for the best interest of the ward which is not indicated in the plan; or
(5)
There is any other matter necessary to protect the interests of the ward,
the court shall, after a hearing with appropriate notice, amend the plan or enter any other order necessary to protect the ward.
F.S. 744.372 Judicial review of guardianships.
The court retains jurisdiction over all guardianships. The court shall review the appropriateness and extent of a guardianship annually and:
(1)
If an objection to the terms of the guardianship report has been filed pursuant to s. 744.367;
(2)
If interim review has been requested under s. 744.3715;
(3)
If a person, including the ward, has filed a suggestion of increased capacity; or
(4)
If the guardianship report has not been received and the guardian has failed to respond to a show cause order.
F.S. 744.373 Production of property.
On the petition of a creditor or other interested person, including the ward, or on its own motion, the court may require a guardian of the property to produce satisfactory evidence that the property of the ward for which the guardian is responsible is in the guardian’s possession or under her or his control. If it deems it necessary or proper, the court may order the guardian to produce the property for the inspection of the creditor, another interested person, the ward, or the court.
F.S. 744.374 Payments to guardian.
If there is more than one guardian, either guardian may petition for an order directing the guardian of the property to pay to the guardian of the person periodic amounts for the support, care, maintenance, education, and other needs of the ward if not otherwise provided for in the guardianship plan. The amount may be increased or decreased from time to time. If an order is entered, the receipt of the guardian for payments made shall be a sufficient discharge of the guardian who makes the payments. The guardian shall not be bound to see to the application of the payments.
F.S. 744.381 Appraisals.
When the court deems it necessary, appraisers may be appointed to appraise the property of the ward that is subject to the guardianship.
F.S. 744.384 Subsequently discovered or acquired property.
(1)
If a plenary guardian of the property of the ward learns of any property that is not included in previous inventories, the property shall be inventoried within 30 days after the discovery or acquisition.
(2)
If a limited guardian of the property of the ward learns of any property that was not known to the court at the time of his or her appointment, he or she shall file a report of such property with the court. Upon petition by the guardian, ward, or other interested person, the court, after hearing with appropriate notice, may direct the guardian to take custody and control of such property, without further adjudicatory proceeding under s. 744.331.
F.S. 744.387 Settlement of claims.
(1)
When a settlement of any claim by or against the guardian, whether arising as a result of personal injury or otherwise, and whether arising before or after appointment of a guardian, is proposed, but before an action to enforce it is begun, on petition by the guardian of the property stating the facts of the claim, question, or dispute and the proposed settlement, and on any evidence that is introduced, the court may enter an order authorizing the settlement if satisfied that the settlement will be for the best interest of the ward. The order shall relieve the guardian from any further responsibility in connection with the claim or dispute when the settlement has been made in accordance with the order. The order authorizing the settlement may also determine whether an additional bond is required and, if so, shall fix the amount of it.
(2)
In the same manner as provided in subsection (1) or as authorized by s. 744.301, the natural guardians or guardian of a minor may settle any claim by or on behalf of a minor that does not exceed $15,000 without bond. A legal guardianship shall be required when the amount of the net settlement to the ward exceeds $15,000.
(3)(a)
No settlement after an action has been commenced by or on behalf of a ward shall be effective unless approved by the court having jurisdiction of the action.
(b)
In the event of settlement or judgment in favor of the ward or minor, the court may authorize the natural guardians or guardian, or a guardian of the property appointed by a court of competent jurisdiction, to collect the amount of the settlement or judgment and to execute a release or satisfaction. When the amount of net settlement to the ward or judgment exceeds $15,000 and no guardian has been appointed, the court shall require the appointment of a guardian for the property.
(4)
In making a settlement under court order as provided in this section, the guardian is authorized to execute any instrument that may be necessary to effect the settlement. When executed, the instrument shall be a complete release of the person making the settlement.
F.S. 744.391 Actions by and against guardian or ward.
If an action is brought by the guardian against the ward, or vice versa, or if the interest of the guardian is adverse to that of his or her ward, a guardian ad litem shall be appointed to represent the ward in that particular litigation. In any litigation between the guardian and the ward, a guardian ad litem shall be appointed to represent the ward. If there is a conflict of interest between the guardian and the ward, the guardian ad litem shall petition the court for removal of the guardian. Judgments in favor of the ward shall become the property of the ward without the necessity for any assignment by the guardian or receipt by the ward upon termination of guardianship. The guardian may receive payment and satisfy any judgment in behalf of the ward without joinder by the ward.
F.S. 744.394 Suspension of statutes of limitations in favor of guardian.
If a person entitled to bring an action is declared incapacitated before the expiration of the time limited for the commencement of it and the cause of the action survives, the action may be commenced by the guardian of the property after such expiration and within 1 year from the date of the order appointing the guardian or the time otherwise limited by law, whichever is longer.
F.S. 744.397 Application of income of property of ward.
(1)
The court may authorize the guardian of the property to apply the ward’s income, first to the ward’s care, support, education, and maintenance, and then for the care, support, education, maintenance, cost of final illness, and cost of funeral and burial or cremation of the parent, spouse, or dependents, if any, of the ward, to the extent necessary. If the income is not sufficient for these purposes, the court may authorize the expenditure of part of the principal for such purposes from time to time.
(2)
The word “dependents,” as used in subsection (1) means, in addition to those persons who are legal dependents of a ward under existing law, the person or persons whom the ward is morally or equitably obligated to aid, assist, maintain, or care for, including, but not limited to, such persons as the indigent spouse of the ward, based upon the showing of an existing need and an ability of the estate of the ward to pay for, provide, or furnish the aid, assistance, maintenance, or care without unreasonably jeopardizing the care, support, and maintenance of the ward.
(3)
If the ward is a minor and the ward’s parents are able to care for him or her and to support, maintain, and educate him or her, the guardian of the minor shall not so use his or her ward’s property unless directed or authorized to do so by the court.
F.S. 744.421 Petition for support of ward’s dependents.
Any person dependent on the ward for support may petition for an order directing the guardian of the property to contribute to the support of the dependent person from the property of the ward. The court may enter an order for suitable support and education of the dependent person out of the ward’s property that is subject to the guardianship. The grant or denial of an order for support shall not preclude a further petition for increase, decrease, modification, or termination of allowance for support by either the petitioner or the guardian. The order for support shall be valid for payments made pursuant to it, but no valid payments can be made after the termination of the guardianship. The receipt of the petitioner shall be a sufficient release of the guardian for payments made pursuant to the order. If the property of the ward is derived in whole or in part from payments of compensation, adjusted compensation, pension, insurance, or other benefits made directly to the guardian by the United States Department of Veterans Affairs, notice of the petition for support shall be given by the petitioner to the office of the United States Department of Veterans Affairs having jurisdiction over the area in which the court is located and the chief attorney for the Department of Veterans’ Affairs in this state at least 15 days before the hearing on the petition. The court may not authorize payments from the ward’s property unless the ward has been adjudicated incapacitated to handle such property in accordance with s. 744.331; except in a voluntary guardianship, in which case such petition may be granted only upon the written consent of the ward.
F.S. 744.422 Petition for support for a dependent adult child.
Pursuant to s. 61.1255, a guardian may petition the court for the authority to bring a civil suit in circuit court to establish periodic payments from either or both parents of the dependent adult child for the support, care, maintenance, education, and any other needs of a dependent adult child if not otherwise provided for in the guardianship plan. The amount of support is determined pursuant to s. 61.31. This section may not be construed to confer any obligation or duty for a guardian to pursue support on behalf of a dependent adult child.
F.S. 744.441 Powers of guardian upon court approval.
After obtaining approval of the court pursuant to a petition for authorization to act, a plenary guardian of the property, or a limited guardian of the property within the powers granted by the order appointing the guardian or an approved annual or amended guardianship report, may do all of the following:
(1)
Perform, compromise, or refuse performance of a ward’s contracts that continue as obligations of the estate, as he or she may determine under the circumstances.
(2)
Execute, exercise, or release any powers as trustee, personal representative, custodian for minors, conservator, or donee of any power of appointment or other power that the ward might have lawfully exercised, consummated, or executed if not incapacitated, if the best interest of the ward requires such execution, exercise, or release.
(3)
Make ordinary or extraordinary repairs or alterations in buildings or other structures; demolish any improvements; or raze existing, or erect new, party walls or buildings.
(4)
Subdivide, develop, or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; adjust differences in valuation on exchange or partition by giving or receiving consideration; or dedicate easements to public use without consideration.
(5)
Enter into a lease as lessor or lessee for any purpose, with or without option to purchase or renew, for a term within, or extending beyond, the period of guardianship.
(6)
Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement.
(7)
Abandon property when, in the opinion of the guardian, it is valueless or is so encumbered or in such condition that it is of no benefit to the estate.
(8)
Pay calls, assessments, and other sums chargeable or accruing against, or on account of, securities.
(9)
Borrow money, with or without security, to be repaid from the property or otherwise and advance money for the protection of the estate.
(10)
Effect a fair and reasonable compromise with any debtor or obligor or extend, renew, or in any manner modify the terms of any obligation owing to the estate.
(11)
Prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of the guardian in the performance of his or her duties. Before authorizing a guardian to bring an action described in s. 736.0207, the court shall first find that the action appears to be in the ward’s best interests during the ward’s probable lifetime. There shall be a rebuttable presumption that an action challenging the ward’s revocation of all or part of a trust is not in the ward’s best interests if the revocation relates solely to a devise. This subsection does not preclude a challenge after the ward’s death. If the court denies a request that a guardian be authorized to bring an action described in s. 736.0207, the court must review the continued need for a guardian and the extent of the need for delegation of the ward’s rights.
(12)
Sell, mortgage, or lease any real or personal property of the estate, including homestead property, or any interest therein for cash or credit, or for part cash and part credit, and with or without security for unpaid balances.
(13)
Continue any unincorporated business or venture in which the ward was engaged.
(14)
Purchase the entire fee simple title to real estate in this state in which the guardian has no interest, but the purchase may be made only for a home for the ward, to protect the home of the ward or the ward’s interest, or as a home for the ward’s dependent family. If the ward is a married person and the home of the ward or of the dependent family of the ward is owned by the ward and spouse as an estate by the entirety and the home is sold pursuant to the authority of subsection (12), the court may authorize the investment of any part or all of the proceeds from the sale toward the purchase of a fee simple title to real estate in this state for a home for the ward or the dependent family of the ward as an estate by the entirety owned by the ward and spouse. If the guardian is authorized to acquire title to real estate for the ward or dependent family of the ward as an estate by the entirety in accordance with the preceding provisions, the conveyance must be in the name of the ward and spouse and be effective to create an estate by the entirety in the ward and spouse.
(15)
Exercise any option contained in any policy of insurance payable to, or inuring to the benefit of, the ward.
(16)
Pay reasonable funeral, interment, and grave marker expenses for the ward from the ward’s estate.
(17)
Make gifts of the ward’s property to members of the ward’s family in estate and income tax planning procedures.
(18)
When the ward’s will evinces an objective to obtain a United States estate tax charitable deduction by use of a split interest trust (as that term is defined in s. 736.1201), but the maximum charitable deduction otherwise allowable will not be achieved in whole or in part, execute a codicil on the ward’s behalf amending said will to obtain the maximum charitable deduction allowable without diminishing the aggregate value of the benefits of any beneficiary under such will.
(19)
Create or amend revocable trusts or create irrevocable trusts of property of the ward’s estate which may extend beyond the disability or life of the ward in connection with estate, gift, income, or other tax planning or in connection with estate planning. The court shall retain oversight of the assets transferred to a trust, unless otherwise ordered by the court.
(20)
Renounce or disclaim any interest by testate or intestate succession or by inter vivos transfer.
(21)
Enter into contracts that are appropriate for, and in the best interest of, the ward.
(22)
As to a minor ward, pay expenses of the ward’s support, health, maintenance, and education, if the ward’s parents, or either of them, are alive.
F.S. 744.442 Delegation of authority.
(1)
A guardian may designate a surrogate guardian to exercise the powers of the guardian if the guardian is unavailable to act. A person designated as a surrogate guardian under this section must be a professional guardian.
(2)(a)
A guardian must file a petition with the court requesting permission to designate a surrogate guardian.
(b)
If the court approves the designation, the order must specify the name and business address of the surrogate guardian and the duration of appointment, which may not exceed 30 days. The court may extend the appointment for good cause shown. The surrogate guardian may exercise all powers of the guardian unless limited by order of the court. The surrogate guardian must file with the court an oath swearing or affirming that he or she will faithfully perform the duties delegated. The court may require the surrogate guardian to post a bond.
(3)
This section does not limit the responsibility of the guardian to the ward and to the court. The guardian is liable for the acts of the surrogate guardian. The guardian may terminate the authority of the surrogate guardian by filing a written notice of the termination with the court.
(4)
The surrogate guardian is subject to the jurisdiction of the court as if appointed to serve as guardian.
F.S. 744.444 Power of guardian without court approval.
Without obtaining court approval, a plenary guardian of the property, or a limited guardian of the property within the powers granted by the order appointing the guardian or an approved annual or amended guardianship report, may:
(1)
Retain assets owned by the ward.
(2)
Receive assets from fiduciaries or other sources.
(3)
Vote stocks or other securities in person or by general or limited proxy or not vote stocks or other securities.
(4)
Insure the assets of the estate against damage, loss, and liability and insure himself or herself against liability as to third persons.
(5)
Execute and deliver in his or her name as guardian any instrument necessary or proper to carry out and give effect to this section.
(6)
Pay taxes and assessments on the ward’s property.
(7)
Pay valid encumbrances against the ward’s property in accordance with their terms, but no prepayment may be made without prior court approval.
(8)
Pay reasonable living expenses for the ward, taking into consideration the accustomed standard of living, age, health, and financial condition of the ward. This subsection does not authorize the guardian of a minor to expend funds for the ward’s living expenses if one or both of the ward’s parents are alive.
(9)
Elect to dissent from a will under s. 732.2125(2), seek approval to make an election in accordance with s. 732.401, or assert any other right or choice available to a surviving spouse in the administration of a decedent’s estate.
(10)
Deposit or invest liquid assets of the estate, including moneys received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable secured loan arrangements, money market mutual funds, or other prudent investments. The guardian may redeem or sell such deposits or investments to pay the reasonable living expenses of the ward as provided herein.
(11)
Pay incidental expenses in the administration of the estate.
(12)
Sell or exercise stock subscription or conversion rights and consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise.
(13)
When reasonably necessary, employ persons, including attorneys, auditors, investment advisers, care managers, or agents, even if they are associated with the guardian, to advise or assist the guardian in the performance of his or her duties.
(14)
Execute and deliver in his or her name as guardian any instrument that is necessary or proper to carry out the orders of the court.
(15)
Hold a security in the name of a nominee or in other form without disclosure of the interest of the ward, but the guardian is liable for any act of the nominee in connection with the security so held.
(16)
Pay or reimburse costs incurred and reasonable fees or compensation to persons, including attorneys, employed by the guardian pursuant to subsection (13) from the assets of the guardianship estate, subject to obtaining court approval of the annual accounting.
(17)
Provide confidential information about a ward which is related to an investigation arising under s. 744.368 to the clerk, part II of this chapter to an Office of Public and Professional Guardians investigator, or part I of chapter 400 to a local or state ombudsman council member conducting such an investigation. Any such clerk, Office of Public and Professional Guardians investigator, or ombudsman shall have a duty to maintain the confidentiality of such information.
F.S. 744.446 Conflicts of interest; prohibited activities; court approval; breach of fiduciary duty.
(1)
It is essential to the proper conduct and management of a guardianship that the guardian be independent and impartial. The fiduciary relationship which exists between the guardian and the ward may not be used for the private gain of the guardian other than the remuneration for fees and expenses provided by law. The guardian may not incur any obligation on behalf of the guardianship which conflicts with the proper discharge of the guardian’s duties.
(2)
A guardian may not offer, pay, solicit, or receive a commission, benefit, bonus, rebate, or kickback, directly or indirectly, overtly or covertly, in cash or in kind, or engage in a split-fee arrangement in return for referring, soliciting, or engaging in a transaction for goods or services on behalf of an alleged incapacitated person or minor, or a ward, for past or future goods or services.
(3)
Unless prior approval is obtained by court order, or unless such relationship existed before appointment of the guardian and is disclosed to the court in the petition for appointment of guardian, a guardian may not:
(a)
Have any interest, financial or otherwise, direct or indirect, in any business transaction or activity with the ward, the judge presiding over the case, any member of the appointed examining committee, any court employee involved in the guardianship process, or the attorney for the ward;
(b)
Acquire an ownership, possessory, security, or other pecuniary interest adverse to the ward;
(c)
Be designated as a beneficiary on any life insurance policy, pension, or benefit plan of the ward unless such designation was validly made by the ward before adjudication of incapacity of the ward; and
(d)
Directly or indirectly purchase, rent, lease, or sell any property or services from or to any business entity of which the guardian or the guardian’s spouse or any of the guardian’s lineal descendants, or collateral kindred, is an officer, partner, director, shareholder, or proprietor, or has any financial interest.
(4)
Any activity prohibited by this section is voidable during the term of the guardianship or by the personal representative of the ward’s estate, and the guardian is subject to removal and to imposition of personal liability through a proceeding for surcharge, in addition to any other remedies otherwise available.
(5)
In the event of a breach by the guardian of the guardian’s fiduciary duty, the court shall take those necessary actions to protect the ward and the ward’s assets.
F.S. 744.447 Petition for authorization to act.
(1)
Application for authorization to perform, or confirmation of, any acts under s. 744.441 or s. 744.446 shall be by petition stating the facts showing the expediency or necessity for the action; a description of any property involved; and the price and terms of a sale, mortgage, or other contract. The application must state whether it conforms to the general terms of the guardianship report and whether the ward has been adjudicated incapacitated to act with respect to the rights to be exercised.
(2)
No notice of a petition to authorize a sale of perishable personal property or of property rapidly deteriorating shall be required. Notice of a petition to perform any other acts under s. 744.441 or s. 744.446 shall be given to the ward, to the next of kin, if any, and to those interested persons who have filed requests for notices and copies of pleadings, as provided in the Florida Probate Rules, unless waived by the court. Notice need not be given to a ward who is under 14 years of age or who has been determined to be totally incapacitated.
F.S. 744.451 Order.
(1)
If a sale or mortgage is authorized, the order shall describe the property, and
(a)
If the property is authorized for sale at private sale, the order shall fix the price and the terms of sale.
(b)
If the sale is to be public, the order shall state that the sale shall be made to the highest bidder and the court reserves the right to reject all bids.
(2)
An order for any other act permitted under s. 744.441 or s. 744.446 shall describe the permitted act and authorize the guardian to perform it.
F.S. 744.454 Guardian forbidden to borrow or purchase; exceptions.
A professional guardian may not purchase property or borrow money from his or her ward. A guardian who is not a professional guardian may do so if:
(1)
A court by written order authorizes the sale or loan after a hearing to which interested persons were given notice; or
(2)
The property is sold at public sale and the guardian is a spouse, parent, child, brother, or sister of the ward or a cotenant of the ward in the property to be sold.
F.S. 744.457 Conveyance of various property rights by guardians of the property.
(1)(a)
All legal or equitable interests in property owned as an estate by the entirety by an incapacitated person for whom a guardian of the property has been appointed may be sold, transferred, conveyed, or mortgaged in accordance with s. 744.447, if the spouse who is not incapacitated joins in the sale, transfer, conveyance, or mortgage of the property. When both spouses are incapacitated, the sale, transfer, conveyance, or mortgage shall be by the guardians only. The sale, transfer, conveyance, or mortgage may be accomplished by one instrument or by separate instruments.
(b)
In ordering or approving the sale and conveyance of the real or personal property owned by the ward and the ward’s spouse as an estate by the entirety or as joint tenants with right of survivorship, the court may provide that one-half of the net proceeds of the sale shall go to the guardian of the ward and the other one-half to the ward’s spouse, or the court may provide for the proceeds of the sale to retain the same character as to survivorship as the original asset.
(c)
The guardian of the property shall collect all payments coming due on intangible property, such as notes and mortgages and other securities, and shall retain one-half of all principal and interest payments so collected and shall pay the other one-half of the collections to the spouse who is not incapacitated. If both spouses are incapacitated, the guardian of either shall collect the payments, retain one-half of the principal and interest payments, and pay the other one-half to the guardian of the other spouse.
(d)
The spouse of the incapacitated person shall collect all payments of rents on real estate held as an estate by the entirety and, after paying all charges against the property, such as taxes, insurance, maintenance, and repairs, shall retain one-half of the net rents so collected and pay the other one-half to the guardian of the spouse who is incapacitated. If both spouses are incapacitated, the guardian of the property of either may collect the rent, pay the charges, retain one-half of the net rent, and pay the other one-half to the guardian of the other spouse.
(2)
In determining the value of life estates or remainder interests, the American Experience Mortality Tables may be used.
(3)
Nothing in this section shall prohibit the court in its discretion from appointing a sole guardian to serve as guardian for both spouses.
(4)
Any contingent or expectant interest in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety, may be conveyed or released in accordance with s. 744.447.
F.S. 744.461 Purchasers and lenders protected.
No person purchasing or leasing from, or taking a mortgage, pledge, or other lien from, a guardian shall be bound to see that the money or other things of value paid to the guardian are actually needed or properly applied. The person is not otherwise bound as to the proprieties or expediencies of the acts of the guardian.
F.S. 744.462 Determination regarding alternatives to guardianship.
Any judicial determination concerning the validity of the ward’s durable power of attorney, trust, or trust amendment shall be promptly reported in the guardianship proceeding by the guardian of the property. If the instrument has been judicially determined to be valid or if, after the appointment of a guardian, a petition is filed alleging that there is an alternative to guardianship which will sufficiently address the problems of the ward, the court shall review the continued need for a guardian and the extent of the need for delegation of the ward’s rights.
F.S. 744.464 Restoration to capacity.
(1)
VENUE.
—
A suggestion of capacity must be filed with the court in which the guardianship is pending.
(2)
SUGGESTION OF CAPACITY.
—
(a)
Any interested person, including the ward, may file a suggestion of capacity. The suggestion of capacity must state that the ward is currently capable of exercising some or all of the rights which were removed, including the capability to independently exercise his or her rights with appropriate assistance.
(b)
Upon the filing of the suggestion of capacity, the court shall immediately appoint a physician to examine the ward. The physician must examine the ward and file his or her report with the court within 20 days after the appointment.
(c)
The court shall immediately send notice of the filing of the suggestion of capacity to the ward, the guardian, the attorney for the ward, if any, and any other interested persons designated by the court. Formal notice must be served on the guardian. Informal notice may be served on other persons. Notice need not be served on the person who filed the suggestion of capacity.
(d)
Any objections to the suggestion of capacity must be filed within 20 days after service of the notice.
(e)
If an objection is timely filed, or if the medical examination suggests that full restoration is not appropriate, the court shall set the matter for hearing. If the ward does not have an attorney, the court shall appoint one to represent the ward.
(f)
Notice of the hearing and copies of the objections and medical examination reports shall be served upon the ward, the ward’s attorney, the guardian, the ward’s next of kin, and any other interested persons as directed by the court.
(3)
ORDER OF RESTORATION.
—
(a)
If no objections are filed, and the court is satisfied that the medical examination establishes by a preponderance of the evidence that restoration of all or some of the ward’s rights is appropriate, the court shall enter an order of restoration of capacity, restoring all or some of the rights which were removed from the ward in accordance with those findings.
(b)
At the conclusion of a hearing, conducted pursuant to s. 744.1095, the court shall make specific findings of fact and, based on a preponderance of the evidence, enter an order either denying the suggestion of capacity or restoring all or some of the rights which were removed from the ward. The ward has the burden of proving by a preponderance of the evidence that the restoration of capacity is warranted.
(c)
If only some rights are restored to the ward, the order must state which rights are restored, and the guardian shall prepare a new guardianship report which addresses only the remaining rights retained by the guardian. The guardian must file a copy of the new report with the court within 60 days after the entry of the order.
(4)
TIMELINESS OF HEARING.
—
The court shall give priority to any suggestion of capacity and shall advance the cause on the calendar.
F.S. 744.467 Resignation of guardian.
A guardian may resign and be relieved of his or her duties after the notice that the court may require and notice to the surety on his or her bond. Before entering an order discharging a guardian of the property, the court shall require the guardian to file a true and correct final report of his or her guardianship and to deliver to the successor guardian all property of the ward, all records concerning the property of the ward or of the guardianship, and all money due to the ward from him or her. A guardian of the person must deliver to the successor guardian copies of all records of medical or personal care, prior to being discharged. Before entering the order, the court shall be satisfied that the interest of the ward will not be placed in jeopardy by the resignation. The acceptance of the resignation shall not exonerate the guardian or the guardian’s surety from any liability previously incurred.
F.S. 744.471 Appointment of successor.
A successor guardian must be appointed and duly qualified before a guardian shall be relieved of his or her duties and obligations as provided in s. 744.467. A successor guardian shall be appointed if a guardian dies, becomes incapacitated, or is removed. Successor guardians are governed by the laws concerning guardianships.
F.S. 744.474 Reasons for removal of guardian.
A guardian may be removed for any of the following reasons, and the removal shall be in addition to any other penalties prescribed by law:
(1)
Fraud in obtaining her or his appointment.
(2)
Failure to discharge her or his duties.
(3)
Abuse of her or his powers.
(4)
An incapacity or illness, including substance abuse, which renders the guardian incapable of discharging her or his duties.
(5)
Failure to comply with any order of the court.
(6)
Failure to return schedules of property sold or accounts of sales of property or to produce and exhibit the ward’s assets when so required.
(7)
The wasting, embezzlement, or other mismanagement of the ward’s property.
(8)
Failure to give bond or security for any purpose when required by the court or failure to file with the annual guardianship plan the evidence required by s. 744.351 that the sureties on her or his bond are alive and solvent.
(9)
Conviction of a felony.
(10)
Appointment of a receiver, trustee in bankruptcy, or liquidator for any corporate guardian.
(11)
Development of a conflict of interest between the ward and the guardian.
(12)
Having been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under s. 435.04 or similar statute of another jurisdiction.
(13)
A material failure to comply with the guardianship report by the guardian.
(14)
A failure to comply with the rules for timely filing the initial and annual guardianship reports.
(15)
A failure to fulfill the guardianship education requirements.
(16)
The improper management of the ward’s assets.
(17)
A material change in the ward’s financial circumstances such that the guardian is no longer qualified to manage the finances of the ward, or the previous degree of management is no longer required.
(18)
After appointment, the guardian becomes a disqualified person as set forth in s. 744.309(3).
(19)
Upon a showing by a person who did not receive notice of the petition for adjudication of incapacity, when such notice is required, or who is related to the ward within the relationships specified for nonresident relatives in ss. 744.309(2) and 744.312(2) and who has not previously been rejected by the court as a guardian that the current guardian is not a family member and subsection (20) applies.
(20)
Upon a showing that removal of the current guardian is in the best interest of the ward. In determining whether a guardian who is related by blood or marriage to the ward is to be removed, there shall be a rebuttable presumption that the guardian is acting in the best interests of the ward.
(21)
A bad faith failure to submit guardianship records during the audit pursuant to s. 744.368.
F.S. 744.477 Proceedings for removal of a guardian.
Proceedings for removal of a guardian may be instituted by the court, by any surety or other interested person, or by the ward. Reasonable notice shall be given to the guardian. On the hearing, the court may enter an order that is proper considering the pleadings and the evidence.
F.S. 744.511 Accounting upon removal.
A removed guardian shall file with the court a true, complete, and final report of his or her guardianship within 20 days after removal and shall serve a copy on the successor guardian and the ward, unless the ward is a minor or has been determined to be totally incapacitated.
F.S. 744.514 Surrender of property upon removal.
The successor guardian shall demand of the removed guardian or her or his heirs, personal representative, or surety all the property of the ward and copies of all records of the ward. The removed guardian or her or his heirs, personal representative, or surety shall turn over the items to her or his duly qualified successor.
F.S. 744.517 Proceedings for contempt.
If a removed guardian of the property fails to file a true, complete, and final accounting of his or her guardianship; to turn over to his or her successor or to the ward all the property of his or her ward and copies of all records that are in his or her control and that concern the ward; or to pay over to the successor guardian of the property or to the ward all money due the ward by him or her, the court shall issue a show cause order. If cause is shown for the default, the court shall set a reasonable time within which to comply, and, on failure to comply with this or any subsequent order, the removed guardian may be held in contempt. Proceedings for contempt may be instituted by the court, by any interested person, including the ward, or by a successor guardian.
F.S. 744.521 Termination of guardianship.
When a ward becomes sui juris or is restored to capacity, when the guardian has been unable to locate the ward through diligent search, or, for a guardian of the property, when the property subject to the guardianship has been exhausted, the guardian shall file a final report and receive his or her discharge. A guardian of the person is discharged without further proceeding upon filing a certified copy of the ward’s death certificate. The court may require proof of the removal of incapacity.
F.S. 744.524 Termination of guardianship on change of domicile of resident ward.
When the domicile of a resident ward has changed as provided in s. 744.1098, and the foreign court having jurisdiction over the ward at the ward’s new domicile has appointed a guardian and that guardian has qualified and posted a bond in an amount required by the foreign court, the guardian in this state may file her or his final report and close the guardianship in this state. The guardian of the property in this state shall cause a notice to be published once a week for 2 consecutive weeks, in a newspaper of general circulation published in the county, that she or he has filed her or his accounting and will apply for discharge on a day certain and that jurisdiction of the ward will be transferred to the state of foreign jurisdiction. If an objection is filed to the termination of the guardianship in this state, the court shall hear the objection and enter an order either sustaining or overruling the objection. Upon the disposition of all objections filed, or if no objection is filed, final settlement shall be made by the Florida guardian. On proof that the remaining property in the guardianship has been received by the foreign guardian, the guardian of the property in this state shall be discharged. The entry of the order terminating the guardianship in this state shall not exonerate the guardian or the guardian’s surety from any liability previously incurred.
F.S. 744.527 Final reports and application for discharge; hearing.
(1)
When the court terminates the guardianship for any of the reasons set forth in s. 744.521, the guardian shall promptly file his or her final report. If the ward has died, the guardian must file a final report with the court no later than 45 days after he or she has been served with letters of administration or letters of curatorship. If no objections are filed and if it appears that the guardian has made full and complete distribution to the person entitled and has otherwise faithfully discharged his or her duties, the court shall approve the final report. If objections are filed, the court shall conduct a hearing in the same manner as provided for a hearing on objections to annual guardianship reports.
(2)
The guardian applying for discharge may retain from the funds in his or her possession a sufficient amount to pay the final costs of administration, including guardian and attorney’s fees regardless of the death of the ward, accruing between the filing of his or her final returns and the order of discharge.
F.S. 744.528 Discharge of guardian named as personal representative.
(1)
A guardian authorized to manage property, who is subsequently appointed personal representative, must serve a copy of the guardian’s final report and petition for discharge upon the beneficiaries of the ward’s estate who will be affected by the report.
(2)
All such beneficiaries shall have 30 days to file objections to the final report and petition for discharge.
(3)
Any interested person may file a notice of a hearing on any objections filed by the beneficiaries. Notice of the hearing must be served upon the guardian, beneficiaries of the ward’s estate, and any other person to whom the court directs service. If a notice of hearing on the objections is not served within 90 days after filing of the objections, the objections are deemed abandoned.
(4)
The guardian may not be discharged until:
(a)
All objections have been judicially resolved;
(b)
The report of the guardian is approved by the court; and
(c)
In the case of a guardian of the property, all property has been distributed to the ward’s estate or the persons entitled to it.
F.S. 744.531 Order of discharge.
If the court is satisfied that the guardian has faithfully discharged her or his duties, has rendered a complete and accurate final report, and, in the case of a guardian of the property, has delivered the property of the ward to the person entitled, and that the interest of the ward is protected, the court shall enter an order of discharge. The discharge shall operate as a release from the duties of the guardianship and as a bar to any action against the guardian or the guardian’s surety unless the action is commenced within 3 years after the date of the order.
F.S. 744.534 Disposition of unclaimed funds held by guardian.
(1)
In all cases in which it is appropriate for the guardianship to terminate due to the ward’s death and in which property in the hands of the guardian cannot be distributed because no estate proceeding has been instituted, the guardian of the property shall be considered an interested person pursuant to s. 733.202 and may, after a reasonable time, institute such a proceeding. In the alternative, the guardian may follow the procedures set forth in subsection (2).
(2)(a)
In those cases in which it is appropriate for the guardianship to terminate pursuant to s. 744.521 and in which property in the hands of a guardian cannot be distributed to the ward or the ward’s estate solely because the guardian is unable to locate the ward through diligent search, the court shall order the guardian of the property to sell the property of the ward and deposit the proceeds and cash already on hand after retaining those amounts provided for in paragraph (e) with the clerk of the court exercising jurisdiction over the guardianship and receive a receipt. The clerk shall deposit the funds in the registry of the court, to be disposed of as follows:
1.
If the value of the funds is $50 or less, the clerk shall post a notice for 30 days at the courthouse door giving the amount involved, the name of the ward, and other pertinent information that will put interested persons on notice.
2.
If the value of the funds is over $50, the clerk shall publish the notice once a month for 2 consecutive months in a newspaper of general circulation in the county.
3.
After the expiration of 6 months from the posting or first publication, the clerk shall deposit the funds with the Chief Financial Officer after deducting his or her fees and the costs of publication.
(b)
Upon receipt of the funds, the Chief Financial Officer shall deposit them to the credit of public guardianship. All interest and all income that may accrue from the money while so deposited shall belong to the fund. The funds so deposited shall constitute and be a permanent appropriation for payments by the Chief Financial Officer in obedience to court orders entered as provided by paragraph (c).
(c)
Within 5 years from the date of deposit with the Chief Financial Officer, on written petition to the court that directed the deposit of the funds and informal notice to the Department of Legal Affairs, and after proof of his or her right to them, any person entitled to the funds, before or after payment to the Chief Financial Officer and deposit as provided for in paragraph (a), may obtain a court order directing the payment of the funds to him or her. All funds deposited with the Chief Financial Officer and not claimed within 5 years from the date of deposit shall escheat to the state to be deposited in the Department of Elderly Affairs Administrative Trust Fund to be used solely for the benefit of public guardianship as determined by the Secretary of Elderly Affairs.
(d)
Upon depositing the funds with the clerk, the guardian of the property may proceed with the filing of his or her final return and application for discharge under s. 744.527.
(e)
The guardian depositing assets with the clerk is permitted to retain from the funds in his or her possession a sufficient amount to pay the final costs of administration, including guardian and attorney’s fees accruing between the deposit of the funds with the clerk of the court and the order of discharge. Any surplus funds so retained must be deposited with the clerk prior to discharge of the guardian of the property.
F.S. 744.602 Short title; scope of part.
(1)
This part shall be known and may be cited as the “Veterans’ Guardianship Law.”
(2)
The application of this part is limited to veterans and other persons who are entitled to receive benefits from the United States Department of Veterans Affairs. This part is not intended to replace the general law relating to guardianship except insofar as this part is inconsistent with the general law relating to guardianship; in which event, this part and the general law relating to guardianship shall be read together, with any conflict between this part and the general law of guardianship to be resolved by giving effect to this part.
F.S. 744.604 Definitions.
As used in this part, the term:
(1)
“Adjudication by a court of competent jurisdiction” means a judicial decision or finding that a person is or is not incapacitated as provided in s. 744.331.
(2)
“Adjudication by the United States Department of Veterans Affairs” means a determination or finding that a person is competent or incompetent on examination in accordance with the laws and regulations governing the United States Department of Veterans Affairs.
(3)
“Secretary” means the Secretary of Veterans Affairs as head of the United States Department of Veterans Affairs or her or his successor.
(4)
“Benefits” means arrears of pay, bonus, pension, compensation, insurance, and all other moneys paid or payable by the United States through the United States Department of Veterans Affairs by reason of service in the Armed Forces of the United States.
(5)
“Estate” means income on hand and assets acquired in whole or in part with income.
(6)
“Guardian” means any person acting as a fiduciary for a ward’s person or the ward’s estate, or both.
(7)
“Income” means moneys received from the United States Department of Veterans Affairs as benefits, and revenue or profit from any property acquired in whole or in part with such moneys.
(8)
“Person” means an individual, a partnership, a corporation, or an association.
(9)
“United States Department of Veterans Affairs” means the United States Department of Veterans Affairs or its predecessors or successors.
(10)
“Ward” means a beneficiary of the United States Department of Veterans Affairs.
F.S. 744.607 Secretary of Veterans Affairs as party in interest.
The Secretary of Veterans Affairs shall be a party in interest in any proceeding for the appointment or removal of a guardian or for the removal of the disability of minority or mental incapacity of a ward, and in any suit or other proceeding affecting in any manner the administration by the guardian of the estate of any present or former ward whose estate includes assets derived in whole or in part from benefits heretofore or hereafter paid by the United States Department of Veterans Affairs. Not less than 15 days prior to hearing in such matter, notice in writing of the time and place thereof shall be given by mail (unless waived in writing) to the office of the United States Department of Veterans Affairs having jurisdiction over the area in which any such suit or any such proceeding is pending.
F.S. 744.609 Procedure for commitment of veteran to United States Department of Veterans Affairs hospital.
The procedure for the placement into a United States Department of Veterans Affairs hospital of a ward hereunder shall be the procedure prescribed in s. 394.4672.
F.S. 744.613 Appointment of guardian for ward authorized.
(1)
Whenever, pursuant to any law of the United States or regulation of the United States Department of Veterans Affairs, the secretary requires, prior to the payment of benefits, that a guardian be appointed for a ward, the appointment may be made in the manner hereinafter provided.
(2)
When a petition is filed for the appointment of a guardian of a minor ward, a certificate of the secretary or the secretary’s authorized representative setting forth the age of such minor, as shown by the records of the United States Department of Veterans Affairs, and a statement that the appointment of a guardian is a condition precedent to the payment of any moneys due to the minor by the United States Department of Veterans Affairs are prima facie evidence of the necessity for such appointment.
(3)
When a petition is filed for the appointment of a guardian of a mentally incompetent ward, a certificate of the secretary or the secretary’s authorized representative, setting forth the fact that the person has been found incompetent and has been rated incompetent by the United States Department of Veterans Affairs, on examination in accordance with the laws and regulations governing the United States Department of Veterans Affairs, and that the appointment of a guardian is a condition precedent to the payment of any moneys due to such person by the United States Department of Veterans Affairs, is prima facie evidence of the necessity for such appointment.
F.S. 744.616 Petition for appointment of guardian.
(1)
A petition for the appointment of a guardian may be filed in any court of competent jurisdiction by, or on behalf of, any person who under existing law is entitled to priority of appointment. If no person is so entitled, or if the person so entitled neglects or refuses to file such a petition within 30 days after the mailing of notice by the United States Department of Veterans Affairs to the last known address of such person, indicating the necessity for filing the petition, a petition for such appointment may be filed in any court of competent jurisdiction by, or on behalf of, any responsible person residing in this state.
(2)(a)
The petition for appointment shall set forth:
1.
The name, age, and place of residence of the ward;
2.
The names and places of residence of the nearest relative, if known;
3.
The fact that the ward is entitled to receive moneys payable by or through the United States Department of Veterans Affairs;
4.
The amount of moneys then due and the amount of probable future payments;
5.
The name and address of the person or institution, if any, having actual custody of the ward; and
6.
The name, age, relationship, if any, occupation, and address of the proposed guardian.
(b)
In the case of a mentally incompetent ward, the petition shall show that the ward has been found incompetent and has been rated incompetent on examination by the United States Department of Veterans Affairs, in accordance with the laws and regulations governing the United States Department of Veterans Affairs.
F.S. 744.617 Notice by court of petition filed for appointment of guardian.
(1)
When a petition for the appointment of a guardian has been filed pursuant to s. 744.616, the court shall cause such notice to be given as provided by the general guardianship law. In addition, notice of the petition shall be given to the office of the United States Department of Veterans Affairs having jurisdiction over the area in which the court is located.
(2)
A copy of the petition provided for in s. 744.616 shall be mailed by the clerk of the court to the person or persons for whom a guardian is to be appointed, the clerk of court mailing the copy of the petition to the last known address of such person or persons not less than 5 days prior to the date set for the hearing of the petition by the court.
F.S. 744.618 Persons who may be appointed guardian.
(1)
Notwithstanding any law with respect to priority of persons entitled to appointment, or nomination in the petition, the court may appoint some other individual or a bank or trust company as guardian if the court determines that the appointment of the other individual or bank or trust company would be in the best interest of the ward.
(2)
It is unlawful for a circuit judge to appoint either herself or himself, or a member of her or his family, as guardian for any person entitled to the benefits provided for in 38 U.S.C., as amended, except in a case when the person entitled to such benefits is a member of the family of the circuit judge involved.
F.S. 744.619 Bond of guardian.
When the appointment of a guardian is made, the guardian shall execute and file a bond to be approved by the court in an amount not less than the sum of the amount of moneys then due to the ward and the amount of moneys estimated to become payable during the ensuing year. The bond shall be in the form, and shall be conditioned, as required of guardians appointed under the general guardianship laws of this state. The court has the power to require, from time to time, the guardian to file an additional bond.
F.S. 744.621 Inventory of ward’s property; guardian’s failure to file inventory; discharge; forfeiture of commissions.
Every guardian shall, within 30 days after his or her qualification and whenever subsequently required by the circuit judge, file in the circuit court a complete inventory of all the ward’s personal property in his or her hands and, also, a schedule of all real estate in the state belonging to his or her ward, describing it and its quality, whether it is improved or not, and, if it is improved, in what manner, and the appraised value of same. The failure on the part of the guardian to conform to the requirements of this section is a ground for the discharge of the guardian, in which case the guardian shall forfeit all commissions.
F.S. 744.622 Guardian empowered to receive moneys due ward from the United States Government.
A guardian appointed under the provisions of s. 744.616 may receive income and benefits payable by the United States through the United States Department of Veterans Affairs and also has the right to receive for the account of the ward any moneys due from the United States Government in the way of arrears of pay, bonus, compensation or insurance, or other sums due by reason of his or her service (or the service of the person through whom the ward claims) in the Armed Forces of the United States and any other moneys due from the United States Government, payable through its agencies or entities, together with the income derived from investments of these moneys.
F.S. 744.624 Guardian’s application of estate funds for support and maintenance of person other than ward.
A guardian shall not apply any portion of the estate of her or his ward to the support and maintenance of any person other than her or his ward, except upon order of the court after a hearing, notice of which has been given to the proper office of the United States Department of Veterans Affairs as provided in s. 744.625.
F.S. 744.625 Petition for support, or support and education, of ward’s dependents; payments of apportioned benefits prohibit contempt action against veteran.
(1)
Any person who is dependent on a ward for support may petition a court of competent jurisdiction for an order directing the guardian of the ward’s estate to contribute from the estate of the ward to the support, or support and education, of the dependent person, when the estate of the ward is derived in whole or in part from payments of compensation, adjusted compensation, pension, insurance, or other benefits made directly to the guardian of the ward by the United States Department of Veterans Affairs. A notice of the application for support, or support and education, shall be given by the applicant to the office of the United States Department of Veterans Affairs having jurisdiction over the area in which the court is located at least 15 days before the hearing on the application.
(2)
The grant or denial of an order for support, or support and education, does not preclude a further petition for an increase, decrease, modification, or termination of the allowance for such support, or support and education, by either the petitioner or the guardian.
(3)
The order for the support, or support and education, of the petitioner is valid for any payment made pursuant to the order, but no valid payment can be made after the termination of the guardianship. The receipt of the petitioner shall be a sufficient release of the guardian for payments made pursuant to the order.
(4)
When a claim for apportionment of benefits filed with the United States Department of Veterans Affairs on behalf of a dependent or dependents of a disabled veteran is approved by the United States Department of Veterans Affairs, subsequent payments of such apportioned benefits by the United States Department of Veterans Affairs prohibit an action for contempt from being instituted against the veteran.
F.S. 744.626 Exemption of benefits from claims of creditors.
Except as provided by federal law, payments of benefits from the United States Department of Veterans Affairs or the Social Security Administration to or for the benefit of a disabled veteran or the veteran’s surviving spouse or dependents are exempt from the claims of creditors and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after the receipt of the payments by the guardian or the beneficiary.
F.S. 744.627 Investment of funds of estate by guardian.
Every guardian shall invest the funds of the estate in such manner or in such securities, in which the guardian has no interest, as allowed by chapter 518.
F.S. 744.631 Guardian’s petition for authority to sell ward’s real estate; notice by publication; penalties.
(1)
When a guardian of the estate of a minor or an incompetent ward, which guardian has the control or management of any real estate that is the property of such minor or incompetent, deems it necessary or expedient to sell all or part of the real estate, the guardian shall apply, either in term time or in vacation by petition to the judge of the circuit court for the county in which the real estate is situated, for authority to sell all or part of the real estate. If the prayer of the petition appears to the judge to be reasonable and just and financially beneficial to the estate of the ward, the judge may authorize the guardian to sell the real estate described in the petition under such conditions as the interest of the minor or incompetent may, in the opinion of the judge, seem to require.
(2)
The authority to sell the real estate described in the petition shall not be granted unless the guardian has given previous notice, published once a week for 4 successive weeks in a newspaper published in the county where the application is made, of his or her intention to make application to the judge for authority to sell such real estate, the guardian setting forth in the notice the time and place and to what judge the application will be made. If the lands lie in more than one county, the application for such authority shall be made in each county in which the lands lie.
(3)
The failure on the part of the guardian to comply with the provisions of this section makes the guardian and the guardian’s bond agents individually responsible for any loss that may accrue to the estate of the ward involved, and is a ground for the immediate removal of such guardian as to his or her functions, but does not discharge the guardian as to his or her liability or discharge the liabilities of his or her sureties.
F.S. 744.634 Guardian’s accounts, filing with court and certification to United States Department of Veterans Affairs; notice and hearing on accounts; failure to account.
(1)
Every guardian who receives on account of his or her ward any moneys from the United States Department of Veterans Affairs shall annually file with the court on the anniversary date of the appointment, in addition to such other accounts as may be required by the court, a full, true, and accurate account under oath, which account is an account of all moneys so received by him or her and of all disbursements from such moneys, and which account shows the balance of the moneys in his or her hands at the date of such filing and shows how the moneys are invested. A certified copy of each of such accounts filed with the court shall be sent by the guardian to the office of the United States Department of Veterans Affairs having jurisdiction over the area in which such court is located. If the requirement of certification is waived in writing by the United States Department of Veterans Affairs, an uncertified copy of each of such accounts shall be sent.
(2)
The court, at its discretion or upon the petition of an interested party, shall fix a time and place for the hearing on such account; and notice of the hearing shall be given by the court to the United States Department of Veterans Affairs not less than 15 days prior to the date fixed for the hearing.
(3)
The court need not appoint a guardian ad litem to represent the ward at the hearing provided for in subsection (2). If the residence of the next kin of the ward is known, notice by registered mail shall be sent to such relative. Notice also shall be served on the ward; or, if the ward is mentally incapable of understanding the matter at issue, the notice may be served on the person in charge of the institution where the ward is detained, or on the person having charge or custody of the ward.
(4)
When a hearing on an account is required by the court or requested in the petition of an interested party as provided in subsection (2), the judge of the court on the day of the hearing as provided for in subsection (2) shall carefully examine the vouchers and audit and state the account between the guardian and ward. Proper evidence shall be required in support of any voucher or item of the account that may appear to the court not to be just and proper, such evidence to be taken by affidavit or by any other legal mode. If any voucher is rejected, the item or items covered by the disapproval of any voucher or vouchers shall be taxed against the guardian personally. After such examination, the court shall render a decree upon the account, which shall be entered on the record, and the account and vouchers shall be filed. Such partial settlement shall be taken and presumed as correct on final settlement of the guardianship.
(5)
If a guardian fails to file any account of the moneys received by him or her from the United States Department of Veterans Affairs on account of his or her ward within 30 days after such account is required by either the court or the United States Department of Veterans Affairs, or fails to furnish the United States Department of Veterans Affairs a copy of his or her accounts as required by subsection (1), such failure shall be a ground for the removal of the guardian.
F.S. 744.637 Certified copies of public records made available.
When a copy of any public record is required by the United States Department of Veterans Affairs to be used in determining the eligibility of any person to participate in benefits made available by the United States Department of Veterans Affairs, the official charged with the custody of such public record shall, without charge, provide to the applicant for such benefits or any person acting on her or his behalf, or to the authorized representative of the United States Department of Veterans Affairs, a certified copy of such record. For each and every certified copy so furnished by the official, the official shall be paid by the board of county commissioners the fee provided by law for copies.
F.S. 744.638 Clerk of the circuit court; fees; duties.
Upon the filing of the petition for guardianship, granting of same, and entering decree thereon, the clerk of the circuit court is entitled to the service charge as provided by law, which shall include the cost of recording the petition, bond, and decree and the issuing of letters of guardianship. The certificate of the secretary or the secretary’s authorized representative provided for in s. 744.613 need not be recorded but must be kept in the file. Upon issuing letters of guardianship or letters appointing a guardian for the estate of a minor or incompetent, the clerk of the circuit court shall send to the regional office of the United States Department of Veterans Affairs having jurisdiction in this state two certified copies of the letters and two certified copies of the bond approved by the court, without charge or expense to the estate involved. The clerk of the circuit court shall also send a certified copy of such letters to the property appraiser and to the tax collector in each county in which the ward owns real property.
F.S. 744.639 Attorney’s fee.
The fee for the attorney filing the petition and conducting the proceedings shall be fixed by the court in an amount as small as reasonably possible, not to exceed $250. However, this section is not to be interpreted to exclude a petition for extraordinary attorney’s fees, properly filed, and if approved by the United States Department of Veterans Affairs, does not necessitate a hearing before the court for approval, but the court shall enter its order for withdrawal of said attorney’s fees from the ward’s guardianship account accordingly.
F.S. 744.641 Guardian’s compensation; bond premiums.
The amount of compensation payable to a guardian shall not exceed 5 percent of the income of the ward during any year and may be taken, by the guardian, on a monthly basis. In the event of extraordinary services rendered by such guardian, the court may, upon petition and after hearing on the petition, authorize additional compensation for the extraordinary services, payable from the estate of the ward. Provided that extraordinary services approved by the United States Department of Veteran’s Affairs do not require a court hearing for approval of the fees, but shall require an order authorizing the guardian to withdraw the amount from the guardianship account. No compensation shall be allowed on the corpus of an estate received from a preceding guardian. The guardian may be allowed from the estate of her or his ward reasonable premiums paid by the guardian to any corporate surety upon the guardian’s bond.
F.S. 744.643 Discharge of guardian of minor or incompetent ward.
When a minor ward, for whom a guardian has been appointed under the provisions of this part or other laws of this state, attains his or her majority and, if such minor ward has been incompetent, is declared competent by the United States Department of Veterans Affairs and the court, or when an incompetent ward who is not a minor is declared competent by the United States Department of Veterans Affairs and the court, the guardian shall, upon making a satisfactory accounting, be discharged upon a petition filed for that purpose.
F.S. 744.646 Final settlement of guardianship; notice required; guardian ad litem fee; papers required by United States Department of Veterans Affairs.
On the final settlement of the guardianship, the notice provided herein for partial settlement must be given and the other proceedings conducted as in the case of partial settlement, except that a guardian ad litem may be appointed to represent the ward, the fee of which guardian ad litem shall in no case exceed $150. However, if the ward has been pronounced competent, is shown to be mentally sound, appears in court, and is 18 years of age, the settlement may be had between the guardian and the ward under the direction of the court without notice to the next of kin, or the appointment of a guardian ad litem. A certified copy of the final settlement so made in every case must be filed with the United States Department of Veterans Affairs by the clerk of the court.
F.S. 744.649 Notice of appointment of general guardian; closing of veteran’s guardianship; transfer of responsibilities and penalties to general guardian.
When the appointment of a general guardian has been made in the proper court and such guardian has qualified and taken charge of the other property of the ward, the general guardian shall file notice of such appointment in the court in which the veteran’s guardianship is pending and have the veteran’s guardianship settled up and closed so that the general guardian may take charge of the moneys referred to and described in ss. 744.613(2) and (3) and 744.622. When the appointment of a general guardian, whether for an incompetent or minor child or another beneficiary entitled to the benefits provided in 38 U.S.C., as amended, has been confirmed by the court having jurisdiction, such general guardian is responsible and is subject to the provisions and penalties contained in 38 U.S.C., as amended, as well as the requirements pertaining to guardians as set forth in this part.
F.S. 744.652 Construction and application of part.
This part shall be construed liberally to secure the beneficial intents and purposes of this part and applies only to beneficiaries of the United States Department of Veterans Affairs. It shall be so interpreted and construed as to effectuate its general purpose of making the welfare of such beneficiaries the primary concern of their guardians and of the court.
F.S. 744.653 Annual guardianship report.
Guardians appointed under the Veterans’ Guardianship Law shall not be required to comply with the provisions of s. 744.367.
F.S. 744.1012 Legislative intent.
The Legislature finds that:
(1)
Adjudicating a person totally incapacitated and in need of a guardian deprives such person of all her or his civil and legal rights and that such deprivation may be unnecessary.
(2)
It is desirable to make available the least restrictive form of guardianship to assist persons who are only partially incapable of caring for their needs and that alternatives to guardianship and less restrictive means of assistance, including, but not limited to, guardian advocates, be explored before a plenary guardian is appointed.
(3)
By recognizing that every individual has unique needs and differing abilities, it is the purpose of this act to promote the public welfare by establishing a system that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of assistance that least interferes with the legal capacity of a person to act in her or his own behalf. This act shall be liberally construed to accomplish this purpose.
(4)
Private guardianship may be inadequate when there is no willing and responsible family member or friend, other person, bank, or corporation available to serve as guardian for an incapacitated person, and such person does not have adequate income or wealth for the compensation of a private guardian.
(5)
Through the establishment of the Office of Public and Professional Guardians, the Legislature intends to permit the establishment of offices of public guardians for the purpose of providing guardianship services for incapacitated persons when no private guardian is available.
(6)
A public guardian will be provided only to those persons whose needs cannot be met through less restrictive means of intervention. A public guardian may also serve in the capacity of a limited guardian or guardian advocate under s. 393.12 when the public guardian is the guardian of last resort as described in subsection (4).
F.S. 744.1025 Additional definitions.
The definitions contained in the Florida Probate Code shall be applicable to the Florida Guardianship Law, unless the context requires otherwise, insofar as such definitions do not conflict with definitions contained in this law.
F.S. 744.1075 Emergency court monitor.
(1)(a)
A court, upon inquiry from any interested person or upon its own motion, in any proceeding over which the court has jurisdiction, may appoint a court monitor on an emergency basis without notice. The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the ward will be seriously impaired or that the ward’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. The scope of the matters to be investigated and the powers and duties of the monitor must be specifically enumerated by court order.
(b)
The authority of a monitor appointed under this section expires 60 days after the date of appointment or upon a finding of no probable cause, whichever occurs first. The authority of the monitor may be extended for an additional 30 days upon a showing that the emergency conditions still exist.
(2)
Within 15 days after the entry of the order of appointment, the monitor shall file his or her report of findings and recommendations to the court. The report shall be verified and may be supported by documents or other evidence.
(3)
Upon review of the report, the court shall determine whether there is probable cause to take further action to protect the person or property of the ward. If the court finds no probable cause, the court shall issue an order finding no probable cause and discharging the monitor.
(4)(a)
If the court finds probable cause, the court shall issue an order to show cause directed to the guardian or other respondent stating the essential facts constituting the conduct charged and requiring the respondent to appear before the court to show cause why the court should not take further action. The order shall specify the time and place of the hearing with a reasonable time to allow for the preparation of a defense after service of the order.
(b)
At any time prior to the hearing on the order to show cause, the court may issue a temporary injunction, a restraining order, or an order freezing assets; may suspend the guardian or appoint a guardian ad litem; or may issue any other appropriate order to protect the physical or mental health or safety or property of the ward. A copy of all such orders or injunctions shall be transmitted by the court or under its direction to all parties at the time of entry of the order or injunction.
(c)
Following a hearing on the order to show cause, the court may impose sanctions on the guardian or his or her attorney or other respondent or take any other action authorized by law, including entering a judgment of contempt; ordering an accounting; freezing assets; referring the case to local law enforcement agencies or the state attorney; filing an abuse, neglect, or exploitation complaint with the Department of Children and Families; or initiating proceedings to remove the guardian.
Nothing in this subsection shall be construed to preclude the mandatory reporting requirements of chapter 39.
(5)
Unless otherwise prohibited by law, a monitor may be allowed a reasonable fee as determined by the court and paid from the property of the ward. No full-time state, county, or municipal employee or officer shall be paid a fee for such investigation and report. If the court finds the motion for a court monitor to have been filed in bad faith, the costs of the proceeding, including attorney’s fees, may be assessed against the movant.
(6)
The court may appoint the office of criminal conflict and civil regional counsel as monitor if the ward is indigent.
F.S. 744.1076 Court orders appointing court monitors and emergency court monitors; reports of court monitors; orders finding no probable cause; public records exemptions.
(1)(a)
The order of any court appointing a court monitor pursuant to s. 744.107 or an emergency court monitor pursuant to s. 744.1075 is exempt from s. 24(a), Art. I of the State Constitution.
(b)
The reports of an appointed court monitor or emergency court monitor relating to the medical condition, financial affairs, or mental health of the ward are confidential and exempt from s. 24(a), Art. I of the State Constitution. Such reports may be subject to inspection as determined by the court or upon a showing of good cause.
(c)
The public records exemptions provided in this subsection expire if a court makes a finding of probable cause, except that information otherwise made confidential or exempt shall retain its confidential or exempt status.
(2)
Court orders finding no probable cause pursuant to s. 744.107 or s. 744.1075 are confidential and exempt from s. 24(a), Art. I of the State Constitution; however, such orders may be subject to inspection as determined by the court or upon a showing of good cause.
F.S. 744.1095 Hearings.
At any hearing under this chapter, the alleged incapacitated person or the adjudicated ward has the right to:
(1)
Remain silent and refuse to testify at the hearing. The person may not be held in contempt of court or otherwise penalized for refusing to testify. Refusal to testify may not be used as evidence of incapacity;
(2)
Testify;
(3)
Present evidence;
(4)
Call witnesses;
(5)
Confront and cross-examine all witnesses; and
(6)
Have the hearing open or closed as she or he may choose.
F.S. 744.1096 Domicile of ward.
The domicile of a resident ward is the county where the ward resides.
F.S. 744.1097 Venue.
(1)
The venue in proceedings for declaration of incapacity shall be where the alleged incapacitated person resides or is found. The provisions of this section do not apply to veterans.
(2)
The venue in proceedings for the appointment of a guardian shall be:
(a)
If the incapacitated person is a resident of this state, in the county where the incapacitated person resides.
(b)
If the incapacitated person is not a resident of this state, in any county in this state where property of the incapacitated person is located.
(c)
If the incapacitated person is not a resident of this state and owns no property in this state, in the county where any debtor of the incapacitated person resides.
(d)
If the incapacitated person is a child or young adult under the jurisdiction of a dependency court, in the county where the child or young adult resides or in the county having jurisdiction of the dependency case.
(3)
When the residence of an incapacitated person is changed to another county, the guardian shall petition to have the venue of the guardianship changed to the county of the acquired residence, except in cases where venue was established under paragraph (2)(d) or as provided in s. 744.1098.
(4)
If an incapacitated person is a resident of this state and is found in a county other than the county of residence, the venue for declaration of incapacity and for the appointment of a guardian may be the county where the incapacitated person is found. Upon transfer of the incapacitated person to the county of residence, the guardian may have the venue of the guardianship changed to the county of residence and a successor guardian may be appointed.
F.S. 744.1098 Change of ward’s residence.
(1)
PRIOR COURT APPROVAL REQUIRED.
—
A guardian who has power pursuant to this chapter to determine the residence of the ward may not, without court approval, change the residence of the ward from this state to another, or from one county of this state to another county of this state, unless such county is adjacent to the county of the ward’s current residence. Any guardian who wishes to remove the ward from the ward’s current county of residence to another county which is not adjacent to the ward’s current county of residence must obtain court approval prior to removal of the ward. In granting its approval, the court shall, at a minimum, consider the reason for such relocation and the longevity of such relocation.
(2)
IMMEDIATE COURT NOTIFICATION REQUIRED.
—
Any guardian who wishes to remove the ward from the ward’s current county of residence to another county adjacent to the ward’s county of residence shall notify the court having jurisdiction of the guardianship within 15 days after relocation of the ward. Such notice shall state the compelling reasons for relocation of the ward and how long the guardian expects the ward to remain in such other county.
F.S. 744.2001 Office of Public and Professional Guardians.
There is created the Office of Public and Professional Guardians within the Department of Elderly Affairs.
(1)
The Secretary of Elderly Affairs shall appoint the executive director, who shall be the head of the Office of Public and Professional Guardians. The executive director must be a member of The Florida Bar, knowledgeable of guardianship law and of the social services available to meet the needs of incapacitated persons, shall serve on a full-time basis, and shall personally, or through a representative of the office, carry out the purposes and functions of the Office of Public and Professional Guardians in accordance with state and federal law. The executive director shall serve at the pleasure of and report to the secretary.
(2)
The executive director shall, within available resources:
(a)
Have oversight responsibilities for all public and professional guardians.
(b)
Establish standards of practice for public and professional guardians by rule, in consultation with professional guardianship associations and other interested stakeholders.
(c)
Review and approve the standards and criteria for the education, registration, and certification of public and professional guardians in Florida.
(d)
Offer and make available online an education course to satisfy the requirements of s. 744.3145(2).
(e)
Produce and make available information about alternatives to and types of guardianship for dissemination by area agencies on aging as defined in s. 430.203 and aging resource centers as described in s. 430.2053.
(3)
The executive director’s oversight responsibilities of professional guardians include, but are not limited to:
(a)
Developing and implementing a monitoring tool to ensure compliance of professional guardians with the standards of practice established by the Office of Public and Professional Guardians. This monitoring tool may not include a financial audit as required by the clerk of the circuit court under s. 744.368.
(b)
Developing procedures, in consultation with professional guardianship associations and other interested stakeholders, for the review of an allegation that a professional guardian has violated the standards of practice established by the Office of Public and Professional Guardians governing the conduct of professional guardians.
(c)
Establishing disciplinary proceedings, conducting hearings, and taking administrative action pursuant to chapter 120.
(4)
The executive director’s oversight responsibilities of public guardians shall include, but are not limited to:
(a)
Reviewing the current public guardian programs in Florida and other states.
(b)
Developing, in consultation with local guardianship offices and other interested stakeholders, statewide performance measures.
(c)
Reviewing various methods of funding public guardianship programs, the kinds of services being provided by such programs, and the demographics of the wards. In addition, the executive director shall review and make recommendations regarding the feasibility of recovering a portion or all of the costs of providing public guardianship services from the assets or income of the wards.
(d)
By January 1 of each year, providing a status report and recommendations to the secretary which address the need for public guardianship services and related issues.
(e)
Developing a guardianship training program curriculum that may be offered to all guardians, whether public or private.
(5)
The executive director may provide assistance to local governments or entities in pursuing grant opportunities. The executive director shall review and make recommendations in the annual report on the availability and efficacy of seeking Medicaid matching funds. The executive director shall diligently seek ways to use existing programs and services to meet the needs of public wards.
(6)
The executive director may conduct or contract for demonstration projects authorized by the Department of Elderly Affairs, within funds appropriated or through gifts, grants, or contributions for such purposes, to determine the feasibility or desirability of new concepts of organization, administration, financing, or service delivery designed to preserve the civil and constitutional rights of persons of marginal or diminished capacity. Any gifts, grants, or contributions for such purposes shall be deposited in the Department of Elderly Affairs Administrative Trust Fund.
(7)(a)
On or before July 1, 2023, the Office of Public and Professional Guardians shall publish on its website a profile of each registered professional guardian. The profiles must be accessible and searchable by the public and must include, at a minimum, the following information:
1.
The guardian’s name and business address.
2.
Whether the guardian meets the education and bonding requirements under s. 744.2003.
3.
The number and type of substantiated complaints against the guardian.
4.
Any disciplinary actions taken by the Department of Elderly Affairs against the guardian.
(b)
The Department of Elderly Affairs may not populate the professional guardian profiles with information from the database established in s. 744.2112.
(c)
The Department of Elderly Affairs may adopt rules necessary to implement this subsection.
F.S. 744.2002 Professional guardian registration.
(1)
A professional guardian must register with the Office of Public and Professional Guardians established in part II of this chapter.
(2)
Annual registration shall be made on forms furnished by the Office of Public and Professional Guardians and accompanied by the applicable registration fee as determined by rule. The fee may not exceed $100.
(3)
Registration must include the following:
(a)
Sufficient information to identify the professional guardian, as follows:
1.
If the professional guardian is a natural person, the name, address, date of birth, and employer identification or social security number of the person.
2.
If the professional guardian is a partnership or association, the name, address, and employer identification number of the entity.
(b)
Documentation that the bonding and educational requirements of s. 744.2003 have been met.
(c)
Sufficient information to distinguish a guardian providing guardianship services as a public guardian, individually, through partnership, corporation, or any other business organization.
(4)
Prior to registering a professional guardian, the Office of Public and Professional Guardians must receive and review copies of the credit and criminal investigations conducted under s. 744.3135. The credit and criminal investigations must have been completed within the previous 2 years.
(5)
The executive director of the office may deny registration to a professional guardian if the executive director determines that the guardian’s proposed registration, including the guardian’s credit or criminal investigations, indicates that registering the professional guardian would violate any provision of this chapter. If a guardian’s proposed registration is denied, the guardian has standing to seek judicial review of the denial pursuant to chapter 120.
(6)
The Department of Elderly Affairs may adopt rules necessary to administer this section.
(7)
A trust company, a state banking corporation or state savings association authorized and qualified to exercise fiduciary powers in this state, or a national banking association or federal savings and loan association authorized and qualified to exercise fiduciary powers in this state, may, but is not required to, register as a professional guardian under this section. If a trust company, state banking corporation, state savings association, national banking association, or federal savings and loan association described in this subsection elects to register as a professional guardian under this subsection, the requirements of subsections (3) and (4) do not apply and the registration must include only the name, address, and employer identification number of the registrant, the name and address of its registered agent, if any, and the documentation described in paragraph (3)(b).
(8)
The Department of Elderly Affairs may contract with the Florida Guardianship Foundation or other not-for-profit entity to register professional guardians.
(9)
The department or its contractor shall ensure that the clerks of the court and the chief judge of each judicial circuit receive information about each registered professional guardian.
(10)
A state college or university or an independent college or university that is located and chartered in Florida, that is accredited by the Commission on Colleges of the Southern Association of Colleges and Schools or the Accrediting Council for Independent Colleges and Schools, and that confers degrees as defined in s. 1005.02(7) may, but is not required to, register as a professional guardian under this section. If a state college or university or independent college or university elects to register as a professional guardian under this subsection, the requirements of subsections (3) and (4) do not apply and the registration must include only the name, address, and employer identification number of the registrant.
F.S. 744.2003 Regulation of professional guardians; application; bond required; educational requirements.
(1)
The provisions of this section are in addition to and supplemental to any other provision of the Florida Guardianship Law, except s. 744.3145.
(2)
Each professional guardian who files a petition for appointment after October 1, 1997, shall post a blanket fiduciary bond with the clerk of the circuit court in the county in which the guardian’s primary place of business is located. The guardian shall provide proof of the fiduciary bond to the clerks of each additional circuit court in which he or she is serving as a professional guardian. The bond shall be maintained by the guardian in an amount not less than $50,000. The bond must cover all wards for whom the guardian has been appointed at any given time. The liability of the provider of the bond is limited to the face amount of the bond, regardless of the number of wards for whom the professional guardian has been appointed. The act or omissions of each employee of a professional guardian who has direct contact with the ward or access to the ward’s assets is covered by the terms of such bond. The bond must be payable to the Governor of the State of Florida and his or her successors in office and conditioned on the faithful performance of all duties by the guardian. In form, the bond must be joint and several. The bond is in addition to any bonds required under s. 744.351. This subsection does not apply to any attorney who is licensed to practice law in this state and who is in good standing, to any financial institution as defined in s. 744.309(4), or a public guardian. The expenses incurred to satisfy the bonding requirements prescribed in this section may not be paid with the assets of any ward.
(3)
Each professional guardian as defined in s. 744.102(17) and public guardian must receive a minimum of 40 hours of instruction and training. Each professional guardian must receive a minimum of 30 hours of continuing education every 2 calendar years after the year in which the initial 40-hour educational requirement is met. The required continuing education must include at least 2 hours on fiduciary responsibilities; 2 hours on professional ethics; 1 hour on advance directives; 3 hours on abuse, neglect, and exploitation; and 4 hours on guardianship law. The instruction and education must be completed through a course approved or offered by the Office of Public and Professional Guardians. The expenses incurred to satisfy the educational requirements prescribed in this section may not be paid with the assets of any ward. This subsection does not apply to any attorney licensed to practice law in this state or an institution acting as guardian under s. 744.2002(7).
(4)
Each professional guardian must allow, at the guardian’s expense, an investigation of the guardian’s credit history, and the credit history of employees of the guardian, in a manner prescribed by the Department of Elderly Affairs.
(5)
As required in s. 744.3135, each professional guardian shall allow a level 2 background screening of the guardian and employees of the guardian in accordance with the provisions of s. 435.04.
(6)
Each professional guardian is required to demonstrate competency to act as a professional guardian by taking an examination approved by the Department of Elderly Affairs.
(a)
The Department of Elderly Affairs shall determine the minimum examination score necessary for passage of guardianship examinations.
(b)
The Department of Elderly Affairs shall determine the procedure for administration of the examination.
(c)
The Department of Elderly Affairs or its contractor shall charge an examination fee for the actual costs of the development and the administration of the examination. The examination fee for a guardian may not exceed $500.
(d)
The Department of Elderly Affairs may recognize passage of a national guardianship examination in lieu of all or part of the examination approved by the Department of Elderly Affairs, except that all professional guardians must take and pass an approved examination section related to Florida law and procedure.
(7)
The Department of Elderly Affairs shall set the minimum score necessary to demonstrate professional guardianship competency.
(8)
The Department of Elderly Affairs shall waive the examination requirement in subsection (6) if a professional guardian can provide:
(a)
Proof that the guardian has actively acted as a professional guardian for 5 years or more; and
(b)
A letter from a circuit judge before whom the professional guardian practiced at least 1 year which states that the professional guardian had demonstrated to the court competency as a professional guardian.
(9)
The court may not appoint any professional guardian who is not registered by the Office of Public and Professional Guardians.
(10)
This section does not apply to a professional guardian or the employees of that professional guardian when that guardian is a trust company, a state banking corporation, state savings association authorized and qualified to exercise fiduciary powers in this state, or a national banking association or federal savings and loan association authorized and qualified to exercise fiduciary powers in this state.
F.S. 744.2004 Complaints; disciplinary proceedings; penalties; enforcement.
(1)
The Office of Public and Professional Guardians shall establish procedures to:
(a)
Review and, if determined legally sufficient, initiate an investigation within 10 business days after receipt of any complaint that a professional guardian has violated the standards of practice established by the Office of Public and Professional Guardians governing the conduct of professional guardians. A complaint is legally sufficient if it contains ultimate facts that show a violation of a standard of practice by a professional guardian has occurred.
(b)
Notify the complainant no later than 10 business days after the Office of Public and Professional Guardians determines that a complaint is not legally sufficient.
(c)
Complete and provide initial investigative findings and recommendations, if any, to the professional guardian and the person who filed the complaint within 45 days after receipt of a complaint.
(d)
Obtain supporting information or documentation to determine the legal sufficiency of a complaint.
(e)
Interview a ward, family member, or interested party to determine the legal sufficiency of a complaint.
(f)
Dismiss any complaint if, at any time after legal sufficiency is determined, it is found there is insufficient evidence to support the allegations contained in the complaint.
(g)
Within 10 business days after completing an investigation, provide to the complainant and the professional guardian a written statement specifying any finding of a violation of a standard of practice by the professional guardian and any actions taken, or specifying that no such violation was found, as applicable.
(h)
Coordinate, to the greatest extent possible, with the clerks of court to avoid duplication of duties with regard to the financial audits prepared by the clerks pursuant to s. 744.368.
(2)
The Office of Public and Professional Guardians shall establish disciplinary proceedings, conduct hearings, and take administrative action pursuant to chapter 120. Disciplinary actions may include, but are not limited to, requiring a professional guardian to participate in additional educational courses provided or approved by the Office of Public and Professional Guardians, imposing additional monitoring by the office of the guardianships to which the professional guardian is appointed, and suspension or revocation of a professional guardian’s registration.
(3)
In any disciplinary proceeding that may result in the suspension or revocation of a professional guardian’s registration, the Department of Elderly Affairs shall provide the professional guardian and the person who filed the complaint:
(a)
A written explanation of how an administrative complaint is resolved by the disciplinary process.
(b)
A written explanation of how and when the person may participate in the disciplinary process.
(c)
A written notice of any hearing before the Division of Administrative Hearings at which final agency action may be taken.
(4)
If the office makes a final determination to suspend or revoke the professional guardian’s registration, it must provide such determination to the court of competent jurisdiction for any guardianship case to which the professional guardian is currently appointed.
(5)
If the office determines or has reasonable cause to suspect that a vulnerable adult has been or is being abused, neglected, or exploited as a result of a filed complaint or during the course of an investigation of a complaint, it shall immediately report such determination or suspicion to the central abuse hotline established and maintained by the Department of Children and Families pursuant to s. 415.103.
(6)
The Department of Elderly Affairs shall adopt rules to implement the provisions of this section.
F.S. 744.2005 Order of appointment.
(1)
The court may hear testimony on the question of who is entitled to preference in the appointment of a guardian. Any interested person may intervene in the proceedings.
(2)
The order appointing a guardian must state the nature of the guardianship as either plenary or limited. If limited, the order must state that the guardian may exercise only those delegable rights which have been removed from the incapacitated person and specifically delegated to the guardian. The order shall state the specific powers and duties of the guardian.
(3)
The order appointing a guardian must be consistent with the incapacitated person’s welfare and safety, must be the least restrictive appropriate alternative, and must reserve to the incapacitated person the right to make decisions in all matters commensurate with the person’s ability to do so.
(4)
If a petition for appointment of a guardian has been filed, an order appointing a guardian must be issued contemporaneously with the order adjudicating the person incapacitated. The order must specify the amount of the bond to be given by the guardian and must state specifically whether the guardian must place all, or part, of the property of the ward in a restricted account in a financial institution designated pursuant to s. 69.031.
(5)
If a petition for the appointment of a guardian has not been filed or ruled upon at the time of the hearing on the petition to determine capacity, the court may appoint an emergency temporary guardian in the manner and for the purposes specified in s. 744.3031.
(6)
A plenary guardian shall exercise all delegable rights and powers of the incapacitated person.
(7)
A person for whom a limited guardian has been appointed retains all legal rights except those that have been specifically granted to the guardian in the court’s written order.
F.S. 744.2006 Office of Public and Professional Guardians; appointment, notification.
(1)
The executive director of the Office of Public and Professional Guardians, after consultation with the chief judge and other circuit judges within the judicial circuit and with appropriate advocacy groups and individuals and organizations who are knowledgeable about the needs of incapacitated persons, may establish, within a county in the judicial circuit or within the judicial circuit, one or more offices of public guardian and if so established, shall create a list of persons best qualified to serve as the public guardian, who have been investigated pursuant to s. 744.3135. The public guardian must have knowledge of the legal process and knowledge of social services available to meet the needs of incapacitated persons. The public guardian shall maintain a staff or contract with professionally qualified individuals to carry out the guardianship functions, including an attorney who has experience in probate areas and another person who has a master’s degree in social work, or a gerontologist, psychologist, advanced practice registered nurse, or registered nurse. A public guardian that is a nonprofit corporate guardian under s. 744.309(5) must receive tax-exempt status from the United States Internal Revenue Service.
(2)
The executive director shall appoint or contract with a public guardian from the list of candidates described in subsection (1). A public guardian must meet the qualifications for a guardian as prescribed in s. 744.309(1)(a). Upon appointment of the public guardian, the executive director shall notify the chief judge of the judicial circuit and the Chief Justice of the Supreme Court of Florida, in writing, of the appointment.
(3)
If the needs of the county or circuit do not require a full-time public guardian, a part-time public guardian may be appointed at reduced compensation.
(4)
A public guardian, whether full-time or part-time, may not hold any position that would create a conflict of interest.
(5)
The public guardian is to be appointed for a term of 4 years, after which her or his appointment must be reviewed by the executive director, and may be reappointed for a term of up to 4 years. The executive director may suspend a public guardian with or without the request of the chief judge. If a public guardian is suspended, the executive director shall appoint an acting public guardian as soon as possible to serve until such time as a permanent replacement is selected. A public guardian may be removed from office during the term of office only by the executive director who must consult with the chief judge prior to said removal. A recommendation of removal made by the chief judge must be considered by the executive director.
(6)
Public guardians who have been previously appointed by a chief judge prior to the effective date of this act pursuant to this section may continue in their positions until the expiration of their term pursuant to their agreement. However, oversight of all public guardians shall transfer to the Office of Public and Professional Guardians upon the effective date of this act. The executive director of the Office of Public and Professional Guardians shall be responsible for all future appointments of public guardians pursuant to this act.
F.S. 744.2007 Powers and duties.
(1)
A public guardian may serve as a guardian of a person adjudicated incapacitated under this chapter if there is no family member or friend, other person, bank, or corporation willing and qualified to serve as guardian.
(2)
The public guardian shall be vested with all the powers and duties of a guardian under this chapter, except as otherwise provided by law.
(3)
The public guardian shall primarily serve incapacitated persons who are of limited financial means, as defined by contract or rule of the Department of Elderly Affairs. The public guardian may serve incapacitated persons of greater financial means to the extent the Department of Elderly Affairs determines to be appropriate.
(4)
The public guardian shall be authorized to employ sufficient staff to carry out the duties of his or her office.
(5)
The public guardian may delegate to assistants and other members of his or her staff the powers and duties of the office of public guardian, except as otherwise limited by law. The public guardian shall retain ultimate responsibility for the discharge of his or her duties and responsibilities.
(6)
The public guardian, when appointed guardian of an incapacitated person, shall seek a family member or friend, other person, bank, or corporation who is qualified and willing to serve as guardian. Upon determining that there is someone qualified and willing to serve as guardian, either the public guardian or the qualified person shall petition the court for appointment of a successor guardian.
(7)
A public guardian may not commit a ward to a treatment facility, as defined in s. 394.455, without an involuntary placement proceeding as provided by law.
(8)
When a person is appointed successor public guardian, he or she immediately succeeds to all rights, duties, responsibilities, and powers of the preceding public guardian.
(9)
When the position of public guardian is vacant, subordinate personnel employed under subsection (4) shall continue to act as if the position of public guardian were filled.
F.S. 744.2008 Costs of public guardian.
(1)
All costs of administration shall be paid from the budget of the office of public guardian. No costs of administration, including filing fees, shall be recovered from the assets or the income of the ward.
(2)
In any proceeding for appointment of a public guardian, or in any proceeding involving the estate of a ward for whom a public guardian has been appointed guardian, the court shall waive any court costs or filing fees.
F.S. 744.2009 Preparation of budget.
Each public guardian, whether funded in whole or in part by money raised through local efforts, grants, or any other source or whether funded in whole or in part by the state, shall prepare a budget for the operation of the office of public guardian to be submitted to the Office of Public and Professional Guardians. As appropriate, the Office of Public and Professional Guardians will include such budgetary information in the Department of Elderly Affairs’ legislative budget request. The office of public guardian shall be operated within the limitations of the General Appropriations Act and any other funds appropriated by the Legislature to that particular judicial circuit, subject to the provisions of chapter 216. The Department of Elderly Affairs shall make a separate and distinct request for an appropriation for the Office of Public and Professional Guardians. However, this section may not be construed to preclude the financing of any operations of the office of public guardian by moneys raised through local effort or through the efforts of the Office of Public and Professional Guardians.
F.S. 744.2101 Procedures and rules.
The public guardian, subject to the oversight of the Office of Public and Professional Guardians, is authorized to:
(1)
Formulate and adopt necessary procedures to assure the efficient conduct of the affairs of the ward and general administration of the office and staff.
(2)
Contract for services necessary to discharge the duties of the office.
(3)
Accept the services of volunteer persons or organizations and provide reimbursement for proper and necessary expenses.
F.S. 744.2102 Surety bond.
Upon taking office, a public guardian shall file a bond with surety as prescribed in s. 45.011 to be approved by the clerk. The bond shall be payable to the Governor and the Governor’s successors in office, in the penal sum of not less than $5,000 nor more than $25,000, conditioned on the faithful performance of all duties by the guardian. The amount of the bond shall be fixed by the majority of the judges within the judicial circuit. In form the bond shall be joint and several. The bond shall be purchased from the funds of the local office of public guardian.
F.S. 744.2103 Reports and standards.
(1)
The public guardian shall keep and maintain proper financial, case control, and statistical records on all matters in which the public guardian serves as guardian.
(2)
No report or disclosure of the ward’s personal and medical records shall be made, except as authorized by law.
(3)
A public guardian shall file an annual report on the operations of the office of public guardian, in writing, by September 1 for the preceding fiscal year with the Office of Public and Professional Guardians, which shall have responsibility for supervision of the operations of the office of public guardian.
(4)
Within 6 months of his or her appointment as guardian of a ward, the public guardian shall submit to the clerk of the court for placement in the ward’s guardianship file and to the executive director of the Office of Public and Professional Guardians a report on his or her efforts to locate a family member or friend, other person, bank, or corporation to act as guardian of the ward and a report on the ward’s potential to be restored to capacity.
(5)(a)
Each office of public guardian shall undergo an independent audit by a qualified certified public accountant at least once every 2 years. A copy of the audit report shall be submitted to the Office of Public and Professional Guardians.
(b)
In addition to regular monitoring activities, the Office of Public and Professional Guardians shall conduct an investigation into the practices of each office of public guardian related to the managing of each ward’s personal affairs and property. If feasible, the investigation shall be conducted in conjunction with the financial audit of each office of public guardian under paragraph (a).
(6)
A public guardian shall ensure that each of the guardian’s wards is personally visited by the public guardian or by one of the guardian’s professional staff at least once each calendar quarter. During this personal visit, the public guardian or the professional staff person shall assess:
(a)
The ward’s physical appearance and condition.
(b)
The appropriateness of the ward’s current living situation.
(c)
The need for any additional services and the necessity for continuation of existing services, taking into consideration all aspects of social, psychological, educational, direct service, health, and personal care needs.
(7)
The ratio for professional staff to wards shall be 1 professional to 40 wards. The Office of Public and Professional Guardians may increase or decrease the ratio after consultation with the local public guardian and the chief judge of the circuit court. The basis for the decision to increase or decrease the prescribed ratio must be included in the annual report to the secretary.
F.S. 744.2104 Access to records by the Office of Public and Professional Guardians; confidentiality.
(1)
Notwithstanding any other provision of law to the contrary, any medical, financial, or mental health records held by an agency, or the court and its agencies, or financial audits prepared by the clerk of the court pursuant to s. 744.368 and held by the court, which are necessary as part of an investigation of a guardian as a result of a complaint filed with the Office of Public and Professional Guardians to evaluate the public guardianship system, to assess the need for additional public guardianship, or to develop required reports, shall be provided to the Office of Public and Professional Guardians or its designee upon that office’s request. Any confidential or exempt information provided to the Office of Public and Professional Guardians shall continue to be held confidential or exempt as otherwise provided by law.
(2)
All records held by the Office of Public and Professional Guardians relating to the medical, financial, or mental health of vulnerable adults as defined in chapter 415, persons with a developmental disability as defined in chapter 393, or persons with a mental illness as defined in chapter 394, shall be confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
F.S. 744.2105 Direct-support organization; definition; use of property; board of directors; audit; dissolution.
(1)
DEFINITION.
—
As used in this section, the term “direct-support organization” means an organization whose sole purpose is to support the Office of Public and Professional Guardians and is:
(a)
A not-for-profit corporation incorporated under chapter 617 and approved by the Department of State;
(b)
Organized and operated to conduct programs and activities; to raise funds; to request and receive grants, gifts, and bequests of moneys; to acquire, receive, hold, invest, and administer, in its own name, securities, funds, objects of value, or other property, real or personal; and to make expenditures to or for the direct or indirect benefit of the Office of Public and Professional Guardians; and
(c)
Determined by the Office of Public and Professional Guardians to be consistent with the goals of the office, in the best interests of the state, and in accordance with the adopted goals and mission of the Department of Elderly Affairs and the Office of Public and Professional Guardians.
(2)
CONTRACT.
—
The direct-support organization shall operate under a written contract with the Office of Public and Professional Guardians. The written contract must provide for:
(a)
Certification by the Office of Public and Professional Guardians that the direct-support organization is complying with the terms of the contract and is doing so consistent with the goals and purposes of the office and in the best interests of the state. This certification must be made annually and reported in the official minutes of a meeting of the direct-support organization.
(b)
The reversion of moneys and property held in trust by the direct-support organization:
1.
To the Office of Public and Professional Guardians if the direct-support organization is no longer approved to operate for the office;
2.
To the Office of Public and Professional Guardians if the direct-support organization ceases to exist;
3.
To the Department of Elderly Affairs if the Office of Public and Professional Guardians ceases to exist; or
4.
To the state if the Department of Elderly Affairs ceases to exist.
The fiscal year of the direct-support organization shall begin on July 1 of each year and end on June 30 of the following year.
(c)
The disclosure of the material provisions of the contract, and the distinction between the Office of Public and Professional Guardians and the direct-support organization, to donors of gifts, contributions, or bequests, including such disclosure on all promotional and fundraising publications.
(3)
BOARD OF DIRECTORS.
—
The Secretary of Elderly Affairs shall appoint a board of directors for the direct-support organization from a list of nominees submitted by the executive director of the Office of Public and Professional Guardians.
(4)
USE OF PROPERTY.
—
The Department of Elderly Affairs may permit, without charge, appropriate use of fixed property and facilities of the department or the Office of Public and Professional Guardians by the direct-support organization. The department may prescribe any condition with which the direct-support organization must comply in order to use fixed property or facilities of the department or the Office of Public and Professional Guardians.
(5)
MONEYS.
—
Any moneys may be held in a separate depository account in the name of the direct-support organization and subject to the provisions of the written contract with the Office of Public and Professional Guardians. Expenditures of the direct-support organization shall be expressly used to support the Office of Public and Professional Guardians. The expenditures of the direct-support organization may not be used for the purpose of lobbying as defined in s. 11.045.
(6)
PUBLIC RECORDS.
—
Personal identifying information of a donor or prospective donor to the direct-support organization who desires to remain anonymous is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
(7)
AUDIT.
—
The direct-support organization shall provide for an annual financial audit in accordance with s. 215.981.
(8)
DISSOLUTION.
—
A not-for-profit corporation incorporated under chapter 617 that is determined by a circuit court to be representing itself as a direct-support organization created under this section, but that does not have a written contract with the Office of Public and Professional Guardians in compliance with this section, is considered to meet the grounds for a judicial dissolution described in s. 617.1430(1)(a). The Office of Public and Professional Guardians shall be the recipient for all assets held by the dissolved corporation which accrued during the period that the dissolved corporation represented itself as a direct-support organization created under this section.
F.S. 744.2106 Joining Forces for Public Guardianship grant program; purpose.
The Legislature establishes the Joining Forces for Public Guardianship matching grant program for the purpose of assisting counties to establish and fund community-supported public guardianship programs. The Joining Forces for Public Guardianship matching grant program shall be established and administered by the Office of Public and Professional Guardians within the Department of Elderly Affairs. The purpose of the program is to provide startup funding to encourage communities to develop and administer locally funded and supported public guardianship programs to address the needs of indigent and incapacitated residents.
(1)
The Office of Public and Professional Guardians may distribute the grant funds as follows:
(a)
As initial startup funding to encourage counties that have no office of public guardian to establish an office, or as initial startup funding to open an additional office of public guardian within a county whose public guardianship needs require more than one office of public guardian.
(b)
As support funding to operational offices of public guardian that demonstrate a necessity for funds to meet the public guardianship needs of a particular geographic area in the state which the office serves.
(c)
To assist counties that have an operating public guardianship program but that propose to expand the geographic area or population of persons they serve, or to develop and administer innovative programs to increase access to public guardianship in this state.
Notwithstanding this subsection, the executive director of the office may award emergency grants if he or she determines that the award is in the best interests of public guardianship in this state. Before making an emergency grant, the executive director must obtain the written approval of the Secretary of Elderly Affairs. Subsections (2), (3), and (4) do not apply to the distribution of emergency grant funds.
(2)
One or more grants may be awarded within a county. However, a county may not receive an award that equals, or multiple awards that cumulatively equal, more than 20 percent of the total amount of grant funds appropriated during any fiscal year.
(3)
If an applicant is eligible and meets the requirements to receive grant funds more than once, the Office of Public and Professional Guardians shall award funds to prior awardees in the following manner:
(a)
In the second year that grant funds are awarded, the cumulative sum of the award provided to one or more applicants within the same county may not exceed 75 percent of the total amount of grant funds awarded within that county in year one.
(b)
In the third year that grant funds are awarded, the cumulative sum of the award provided to one or more applicants within the same county may not exceed 60 percent of the total amount of grant funds awarded within that county in year one.
(c)
In the fourth year that grant funds are awarded, the cumulative sum of the award provided to one or more applicants within the same county may not exceed 45 percent of the total amount of grant funds awarded within that county in year one.
(d)
In the fifth year that grant funds are awarded, the cumulative sum of the award provided to one or more applicants within the same county may not exceed 30 percent of the total amount of grant funds awarded within that county in year one.
(e)
In the sixth year that grant funds are awarded, the cumulative sum of the award provided to one or more applicants within the same county may not exceed 15 percent of the total amount of grant funds awarded within that county in year one.
The Office of Public and Professional Guardians may not award grant funds to any applicant within a county that has received grant funds for more than 6 years.
(4)
Grant funds shall be used only to provide direct services to indigent wards, except that up to 10 percent of the grant funds may be retained by the awardee for administrative expenses.
(5)
Implementation of the program is subject to a specific appropriation by the Legislature in the General Appropriations Act.
F.S. 744.2107 Program administration; duties of the Office of Public and Professional Guardians.
The Office of Public and Professional Guardians shall administer the grant program. The office shall:
(1)
Publicize the availability of grant funds to entities that may be eligible for the funds.
(2)
Establish an application process for submitting a grant proposal.
(3)
Request, receive, and review proposals from applicants seeking grant funds.
(4)
Determine the amount of grant funds each awardee may receive and award grant funds to applicants.
(5)
Develop a monitoring process to evaluate grant awardees, which may include an annual monitoring visit to each awardee’s local office.
(6)
Ensure that persons or organizations awarded grant funds meet and adhere to the requirements of this act.
F.S. 744.2108 Eligibility.
(1)
Any person or organization that has not been awarded a grant must meet all of the following conditions to be eligible to receive a grant:
(a)
The applicant must meet or directly employ staff that meet the minimum qualifications for a public guardian under this chapter.
(b)
The applicant must have already been appointed by, or is pending appointment by, the Office of Public and Professional Guardians to become an office of public guardian in this state.
(2)
Any person or organization that has been awarded a grant must meet all of the following conditions to be eligible to receive another grant:
(a)
The applicant must meet or directly employ staff that meet the minimum qualifications for a public guardian under this chapter.
(b)
The applicant must have been appointed by, or is pending reappointment by, the Office of Public and Professional Guardians to be an office of public guardian in this state.
(c)
The applicant must have achieved a satisfactory monitoring score during the applicant’s most recent evaluation.
F.S. 744.2109 Grant application requirements; review criteria; awards process.
Grant applications must be submitted to the Office of Public and Professional Guardians for review and approval.
(1)
A grant application must contain:
(a)
The specific amount of funds being requested.
(b)
The proposed annual budget for the office of public guardian for which the applicant is applying on behalf of, including all sources of funding, and a detailed report of proposed expenditures, including administrative costs.
(c)
The total number of wards the applicant intends to serve during the grant period.
(d)
Evidence that the applicant has:
1.
Attempted to procure funds and has exhausted all possible other sources of funding; or
2.
Procured funds from local sources, but the total amount of the funds collected or pledged is not sufficient to meet the need for public guardianship in the geographic area that the applicant intends to serve.
(e)
An agreement or confirmation from a local funding source, such as a county, municipality, or any other public or private organization, that the local funding source will contribute matching funds to the public guardianship program totaling not less than $1 for every $1 of grant funds awarded. For purposes of this section, an applicant may provide evidence of agreements or confirmations from multiple local funding sources showing that the local funding sources will pool their contributed matching funds to the public guardianship program for a combined total of not less than $1 for every $1 of grant funds awarded. In-kind contributions, such as materials, commodities, office space, or other types of facilities, personnel services, or other items as determined by rule shall be considered by the office and may be counted as part or all of the local matching funds.
(f)
A detailed plan describing how the office of public guardian for which the applicant is applying on behalf of will be funded in future years.
(g)
Any other information determined by rule as necessary to assist in evaluating grant applicants.
(2)
If the Office of Public and Professional Guardians determines that an applicant meets the requirements for an award of grant funds, the office may award the applicant any amount of grant funds the executive director deems appropriate, if the amount awarded meets the requirements of this act. The office may adopt a rule allocating the maximum allowable amount of grant funds which may be expended on any ward.
(3)
A grant awardee must submit a new grant application for each year of additional funding.
(4)(a)
In the first year of the Joining Forces for Public Guardianship program’s existence, the Office of Public and Professional Guardians shall give priority in awarding grant funds to those entities that:
1.
Are operating as appointed offices of public guardians in this state;
2.
Meet all of the requirements for being awarded a grant under this act; and
3.
Demonstrate a need for grant funds during the current fiscal year due to a loss of local funding formerly raised through court filing fees.
(b)
In each fiscal year after the first year that grant funds are distributed, the Office of Public and Professional Guardians may give priority to awarding grant funds to those entities that:
1.
Meet all of the requirements of this section and ss. 744.2106, 744.2107, and 744.2108 for being awarded grant funds; and
2.
Submit with their application an agreement or confirmation from a local funding source, such as a county, municipality, or any other public or private organization, that the local funding source will contribute matching funds totaling an amount equal to or exceeding $2 for every $1 of grant funds awarded by the office. An entity may submit with its application agreements or confirmations from multiple local funding sources showing that the local funding sources will pool their contributed matching funds to the public guardianship program for a combined total of not less than $2 for every $1 of grant funds awarded. In-kind contributions allowable under this section shall be evaluated by the Office of Public and Professional Guardians and may be counted as part or all of the local matching funds.
F.S. 744.2111 Confidentiality.
(1)
A complaint and any information held by the Department of Elderly Affairs as part of the investigative process are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the investigation is completed or ceases to be active. An investigation is considered active as long as the department is continuing with a reasonable, good faith belief that the investigation may lead to a finding that a guardian has violated the standards of practice established by the Office of Public and Professional Guardians.
(2)
Once an investigation is completed or ceases to be active, the following information held by the department shall remain confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution:
(a)
Personal identifying information of a complainant or ward.
(b)
All personal health and financial records of a ward.
(c)
All photographs and video recordings of a complainant or ward.
(3)
This section does not prohibit the department from providing such information:
(a)
To any law enforcement agency;
(b)
To any other regulatory agency in the performance of its official duties and responsibilities;
(c)
To the clerk of the circuit court under s. 744.368; or
(d)
Pursuant to a court order.
(4)
The exemption under this section applies to all documents received by the department in connection with a complaint before, on, or after July 1, 2017.
F.S. 744.2112 Guardianship information and transparency.
(1)
The Florida Clerks of Court Operations Corporation and the clerks of court shall establish a statewide database of guardian and guardianship case information to facilitate improving court oversight of guardianship cases. The database may not be operational for end users until on or after July 1, 2023. The database must meet interoperability standards defined by the Florida Courts Technology Commission so that each circuit court can easily access the information for regular use in judicial proceedings under this chapter. The database must include, at a minimum, the following:
(a)
The registration status of each professional guardian.
(b)
The substantiated disciplinary history of each professional guardian.
(c)
The status of each guardian’s compliance with the statutory qualifications for guardianship under s. 744.2003 or s. 744.3145.
(d)
The status of statutorily required reports and submissions under this chapter.
(2)(a)
Except as provided under paragraph (3)(b), the database shall be accessible only by members of the judiciary, their direct staff, and court personnel and clerks of court personnel authorized by a judge to assist with guardianship matters. The database must restrict access to the information necessary to perform such individuals’ duties but in no way restrict access by judges or magistrates.
(b)
The database must be searchable by, at a minimum, the name of the petitioner, ward, guardian, and legal counsel for all parties; the demographic information of the ward; the location of the guardian’s office; the name of the judge and the circuit in which the case is brought; and the number of wards served by each guardian, by ward county of residence.
(3)
The Florida Clerks of Court Operations Corporation shall:
(a)
Upload certain professional guardian information from the database to a web page accessible to the general public in a searchable format. Such professional guardian information must be limited to the names of professional guardians and current data regarding the number of wards served by each guardian, the counties of residence of such wards and the number of wards residing in each county, and whether the wards are under limited or plenary guardianships. Personal identifying information of wards may not be included in the data that is searchable under this paragraph.
(b)
Generate monthly reports of statewide, circuit-level, and county-level statistical data to provide assistance to the courts and the Department of Elderly Affairs and to provide transparency to the public and the Legislature regarding the state’s guardianship system. The monthly reports shall include only aggregated and deidentified data. The Florida Clerks of Court Operations Corporation shall publish the statistical data reports monthly on the web page under paragraph (a).
(c)
Generate reports using information in the database at the request of the Legislature, the judiciary, or the Department of Elderly Affairs.
(4)
The Office of Public and Professional Guardians is directed to share professional guardian registration and disciplinary action information for the purposes of this section.
(5)(a)
Beginning July 1, 2024, and annually thereafter through July 1, 2027, the Florida Clerks of Court Operations Corporation must compile and report data collected by the clerks of court and the Department of Elderly Affairs and maintained in the database to the Office of Program Policy Analysis and Government Accountability (OPPAGA).
(b)
OPPAGA must analyze the consolidated data compiled in accordance with paragraph (a) to evaluate trends in the use of guardianships in this state and to conduct a comparative analysis of guardianship laws in other states. OPPAGA must consult with the Office of the State Courts Administrator, the Florida Clerks of Court Operations Corporation, the clerks of court, and the Department of Elderly Affairs during its analysis. OPPAGA shall submit a report containing its findings and recommendations to the Governor, the President of the Senate, and the Speaker of the House of Representatives by October 15, 2024, and annually thereafter through October 15, 2027.
(c)
The data compiled and used for the reports required under this subsection must be produced in a statewide, circuit-level, and county-level statistical format. Such reports must include only aggregated and deidentified data and may not contain personal identifying information of wards.
F.S. 744.3021 Guardians of minors.
(1)
Except as provided in subsection (4), upon petition of a parent, brother, sister, next of kin, or other person interested in the welfare of a minor, a guardian for a minor may be appointed by the court without the necessity of adjudication pursuant to s. 744.331. A guardian appointed for a minor, whether of the person or property, has the authority of a plenary guardian.
(2)
A minor is not required to attend the hearing on the petition for appointment of a guardian, unless otherwise directed by the court.
(3)
In its discretion, the court may appoint an attorney to represent the interests of a minor at the hearing on the petition for appointment of a guardian.
(4)
If a petition is filed pursuant to this section requesting appointment of a guardian for a minor who is the subject of any proceeding under chapter 39 and who is aged 17 years and 6 months or older, the court division with jurisdiction over guardianship matters has jurisdiction over the proceedings under s. 744.331. The alleged incapacitated minor under this subsection shall be provided all the due process rights conferred upon an alleged incapacitated adult pursuant to this chapter and applicable court rules. The order of adjudication under s. 744.331 and the letters of limited or plenary guardianship may issue upon the minor’s 18th birthday or as soon thereafter as possible. Any proceeding pursuant to this subsection shall be conducted separately from any other proceeding.
F.S. 744.3025 Claims of minors.
(1)(a)
The court may appoint a guardian ad litem to represent the minor’s interest before approving a settlement of the minor’s portion of the claim in a case in which a minor has a claim for personal injury, property damage, wrongful death, or other cause of action in which the gross settlement of the claim exceeds $15,000 if the court believes a guardian ad litem is necessary to protect the minor’s interest.
(b)
Except as provided in paragraph (e), the court shall appoint a guardian ad litem to represent the minor’s interest before approving a settlement of the minor’s claim in a case in which the gross settlement involving a minor equals or exceeds $50,000.
(c)
The appointment of the guardian ad litem must be without the necessity of bond or notice.
(d)
The duty of the guardian ad litem is to protect the minor’s interests as described in the Florida Probate Rules.
(e)
A court need not appoint a guardian ad litem for the minor if a guardian of the minor has previously been appointed and that guardian has no potential adverse interest to the minor.
(2)
Unless waived, the court shall award reasonable fees and costs to the guardian ad litem to be paid out of the gross proceeds of the settlement.
(3)
A settlement of a claim pursuant to this section is subject to the confidentiality provisions of this chapter.
F.S. 744.3031 Emergency temporary guardianship.
(1)
A court, prior to appointment of a guardian but after a petition for determination of incapacity has been filed pursuant to this chapter, may appoint an emergency temporary guardian for the person or property, or both, of an alleged incapacitated person. The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. The subject of the proceeding or any adult interested in the welfare of that person may apply to the court in which the proceeding is pending for the emergency appointment of a temporary guardian. The powers and duties of the emergency temporary guardian must be specifically enumerated by court order. The court shall appoint counsel to represent the alleged incapacitated person during any such summary proceedings, and such appointed counsel may request that the proceeding be recorded and transcribed.
(2)
Notice of filing of the petition for appointment of an emergency temporary guardian and a hearing on the petition must be served on the alleged incapacitated person and on the alleged incapacitated person’s attorney at least 24 hours before the hearing on the petition is commenced, unless the petitioner demonstrates that substantial harm to the alleged incapacitated person would occur if the 24-hour notice is given.
(3)
The court may appoint an emergency temporary guardian on its own motion if no petition for appointment of guardian has been filed at the time of entry of an order determining incapacity.
(4)
The authority of an emergency temporary guardian expires 90 days after the date of appointment or when a guardian is appointed, whichever occurs first. The authority of the emergency temporary guardian may be extended for an additional 90 days upon a showing that the emergency conditions still exist.
(5)
The court may issue an injunction, restraining order, or other appropriate writ to protect the physical or mental health or safety of the person who is the ward of the emergency temporary guardianship.
(6)
The emergency temporary guardian shall take an oath to faithfully perform the duties of a guardian before letters of emergency temporary guardianship are issued.
(7)
Before exercising authority as guardian, the emergency temporary guardian of the property may be required to file a bond in accordance with s. 744.351.
(8)
An emergency temporary guardian’s authority and responsibility begins upon issuance of letters of emergency temporary guardianship in accordance with s. 744.345.
(9)(a)
An emergency temporary guardian shall file a final report no later than 30 days after the expiration of the emergency temporary guardianship.
(b)
A court may not authorize any payment of the emergency temporary guardian’s final fees or the final fees of his or her attorney until the final report is filed.
(c)
If an emergency temporary guardian is a guardian for the property, the final report must consist of a verified inventory of the property, as provided in s. 744.365, as of the date the letters of emergency temporary guardianship were issued, a final accounting that gives a full and correct account of the receipts and disbursements of all the property of the ward over which the guardian had control, and a statement of the property of the ward on hand at the end of the emergency temporary guardianship. If the emergency temporary guardian becomes the successor guardian of the property, the final report must satisfy the requirements of the initial guardianship report for the guardian of the property as provided in s. 744.362.
(d)
If the emergency temporary guardian is a guardian of the person, the final report must summarize the activities of the temporary guardian with regard to residential placement, medical condition, mental health and rehabilitative services, and the social condition of the ward to the extent of the authority granted to the temporary guardian in the letters of guardianship. If the emergency temporary guardian becomes the successor guardian of the person, the report must satisfy the requirements of the initial report for a guardian of the person as stated in s. 744.362.
(e)
A copy of the final report of the emergency temporary guardianship shall be served on the successor guardian and the ward.
F.S. 744.3045 Preneed guardian.
(1)
A competent adult may name a preneed guardian by making a written declaration that names such guardian to serve in the event of the declarant’s incapacity.
(2)
The written declaration must reasonably identify the declarant and preneed guardian and be signed by the declarant in the presence of at least two attesting witnesses present at the same time.
(3)
The declarant may file the declaration with the clerk of the court. When a petition for incapacity is filed, the clerk shall produce the declaration.
(4)
Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian. The court shall not be bound to appoint the preneed guardian if the preneed guardian is found to be unqualified to serve as guardian.
(5)
The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity.
(6)
If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that such preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.
(7)
Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian pursuant to ss. 744.309 and 744.312, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347 and shall file a bond, if required. Letters of guardianship must then be issued in the manner provided in s. 744.345.
F.S. 744.3046 Preneed guardian for minor.
(1)
Both parents, natural or adoptive, if living, or the surviving parent, may nominate a preneed guardian of the person or property or both of the parent’s minor child by making a written declaration that names such guardian to serve if the minor’s last surviving parent becomes incapacitated or dies. The declarant or declarants may also name an alternate to the guardian to act if the designated preneed guardian refuses to serve, renounces the appointment, dies, or becomes incapacitated after the death of the last surviving parent of the minor.
(2)
The written declaration must reasonably identify the declarant or declarants and the designated preneed guardian and must be signed by the declarant or declarants in the presence of at least two attesting witnesses present at the same time. The written declaration must also provide the following information for each minor child named in such declaration: the full name as it appears on the birth certificate or as ordered by a court, date of birth, and social security number, if any.
(3)
The declarant must file the declaration with the clerk of the court. When a petition for incapacity of the last surviving parent or the appointment of a guardian upon the death of the last surviving parent is filed, the clerk shall produce the declaration.
(4)
Production of the declaration in a proceeding to determine incapacity of the last surviving parent, or in a proceeding to appoint a guardian upon the death of the last surviving parent, constitutes a rebuttable presumption that the designated preneed guardian is entitled to serve as guardian. The court is not bound to appoint the designated preneed guardian if the designated preneed guardian is found to be unqualified to serve as guardian.
(5)
The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity of the last surviving parent or the death of the last surviving parent.
(6)
If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that the alternate preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.
(7)
Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347 and shall file a bond, if the court requires a bond. Letters of guardianship must then be issued in the manner provided in s. 744.345.
(8)
The clerk shall maintain all declarations filed pursuant to this section until:
(a)
A petition for incapacity of the last surviving parent is filed or petition for the appointment of a guardian upon the death of the last surviving parent is filed as provided in subsection (3); or
(b)
All minor children named in the declaration have reached the age of majority.
The clerk may dispose of such written declaration in accordance with law.
F.S. 744.3085 Guardian advocates.
A circuit court may appoint a guardian advocate, without an adjudication of incapacity, for a person with developmental disabilities if the person lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person, property, or estate, or if the person has voluntarily petitioned for the appointment of a guardian advocate. Unless otherwise specified, the proceeding shall be governed by the Florida Probate Rules. In accordance with the legislative intent of this chapter, courts are encouraged to consider appointing a guardian advocate, when appropriate, as a less restrictive form of guardianship.
F.S. 744.3115 Advance directives for health care.
In each proceeding in which a guardian is appointed under this chapter, the court shall determine whether the ward, prior to incapacity, has executed any valid advance directive under chapter 765.
(1)
For purposes of this section, the term “health care decision” has the same meaning as in s. 765.101.
(2)
If any advance directive exists, the court shall specify in its order and letters of guardianship what authority, if any, the guardian shall exercise over the ward with regard to health care decisions and what authority, if any, the surrogate shall continue to exercise over the ward with regard to health care decisions.
(3)
Pursuant to the grounds listed in s. 765.105, or if the surrogate is unwilling or unable to act, the court may, upon motion from any interested person or upon its own motion, with notice to the surrogate; next of kin, if known; and any other interested persons as the court may direct, modify or revoke the authority of the surrogate to make health care decisions for the ward. Any order revoking or modifying the authority of the surrogate must be supported by specific written findings of fact after a hearing on the motion.
(4)
If a court order provides that a guardian is responsible for making health care decisions for the ward, the guardian shall assume the responsibilities of the surrogate which are provided in s. 765.205.
(5)
If a guardian discovers an advance directive for health care for the ward after the guardian is appointed, the guardian must file the advance directive with the court as soon after its discovery as is reasonable, but no later than the due date for the initial guardianship report or the annual guardianship plan or the filing date for a petition seeking to exercise authority regarding life-prolonging procedures in compliance with s. 744.4431, whichever is earlier. After the guardian files an advance directive for health care, the court must determine if the advance directive is an alternative to guardianship and what authority, if any, the guardian will exercise over health care decisions for the ward pursuant to subsections (3) and (4).
(6)
Upon a finding by the court that a health care surrogate designation or a durable power of attorney is an alternative to guardianship for health care decisions, the surrogate or agent may exercise the right to make health care decisions for the ward under the applicable advance directive or durable power of attorney without order of the court even if the surrogate or agent has been appointed as guardian of the ward for other delegable rights.
F.S. 744.3125 Application for appointment.
(1)
Every prospective guardian must complete an application for appointment as guardian. The application must list the person’s qualifications to serve as a guardian.
(2)
A person may not be appointed a guardian unless the person discloses in the application form the names of all wards for whom the person is currently acting as a guardian. The application must identify each ward by court file number and circuit court in which the case is pending and must state whether the person is acting as the limited or plenary guardian of the person or property or both.
(3)
This section does not apply to corporate guardians other than nonprofit corporate guardians or to public guardians.
(4)
Nonprofit corporate guardians must file quarterly with the clerk of court disclosure statements that contain the information required under subsections (1) and (2), rather than filing a guardianship application with each petition to be appointed guardian.
F.S. 744.3135 Credit and criminal investigation.
(1)
The court shall require all guardians who are seeking appointment by the court, other than a corporate guardian as described in s. 744.309(4), and all employees of a professional guardian, other than a corporate guardian as described in s. 744.309(4), who have a fiduciary responsibility to a ward, to submit, at their own expense, to a credit history investigation and to undergo level 2 background screening as required under s. 435.04. On petition by any interested person or on the court’s own motion, the court may waive the requirement of a credit history investigation or a level 2 background screening, or both. If appointed, a nonprofessional guardian may petition the court for reimbursement of the reasonable expenses of the credit history investigation and background screening. The court must consider the results of any investigation before appointing a guardian. At any time, the court may require a guardian or the guardian’s employees to submit to an investigation of the person’s credit history and complete a level 1 or level 2 background screening pursuant to s. 435.03. The court shall consider the results of any investigation in determining whether to reappoint a guardian. The clerk of the court shall maintain a file on each guardian appointed by the court and retain in the file documentation of the result of any investigation conducted under this section. A professional guardian shall pay the clerk of the court a fee of up to $7.50 for handling and processing professional guardian files.
(2)
For nonprofessional guardians, the court shall accept the satisfactory completion of a criminal history record check as described in this subsection. A nonprofessional guardian satisfies the requirements of this section by undergoing a state and national criminal history record check using fingerprints. Any nonprofessional guardian who is so required shall have his or her fingerprints taken and forward them along with the necessary fee to the Department of Law Enforcement for processing. The results of the fingerprint criminal history record check shall be forwarded to the clerk of the court, who shall maintain the results in the nonprofessional guardian’s file and make the results available to the court.
(3)
For professional guardians, the court and the Office of Public and Professional Guardians shall accept the satisfactory completion of a criminal history record check by any method described in this subsection. A professional guardian satisfies the requirements of this section by undergoing an electronic fingerprint criminal history record check. A professional guardian may use any electronic fingerprinting equipment used for criminal history record checks. By October 1, 2016, the Office of Public and Professional Guardians shall adopt a rule detailing the acceptable methods for completing an electronic fingerprint criminal history record check under this section. The professional guardian shall pay the actual costs incurred by the Federal Bureau of Investigation and the Department of Law Enforcement for the criminal history record check. The entity completing the record check must immediately send the results of the criminal history record check to the clerk of the court and the Office of Public and Professional Guardians. The clerk of the court shall maintain the results in the professional guardian’s file and shall make the results available to the court.
(4)(a)
A professional guardian, and each employee of a professional guardian who has a fiduciary responsibility to a ward, must complete, at his or her own expense, a level 2 background screening as set forth in s. 435.04 before and at least once every 5 years after the date the guardian is registered. A professional guardian, and each employee of a professional guardian who has a fiduciary responsibility to a ward, must complete, at his or her own expense, a level 1 background screening as set forth in s. 435.03 at least once every 2 years after the date the guardian is registered. However, a professional guardian is not required to resubmit fingerprints for a criminal history record check if he or she has been screened using electronic fingerprinting equipment and the fingerprints are retained by the Department of Law Enforcement in order to notify the clerk of the court of any crime charged against the person in this state or elsewhere, as appropriate.
(b)
All fingerprints electronically submitted to the Department of Law Enforcement under this section shall be retained by the Department of Law Enforcement in a manner provided by rule and entered in the statewide automated biometric identification system authorized by s. 943.05(2)(b). The fingerprints shall thereafter be available for all purposes and uses authorized for arrest fingerprints entered in the Criminal Justice Information Program under s. 943.051.
(c)
The Department of Law Enforcement shall search all arrest fingerprints received under s. 943.051 against the fingerprints retained in the statewide automated biometric identification system under paragraph (b). Any arrest record that is identified with the fingerprints of a person described in this paragraph must be reported to the clerk of court. The clerk of court must forward any arrest record received for a professional guardian to the Office of Public and Professional Guardians within 5 days. Each professional guardian who elects to submit fingerprint information electronically shall participate in this search process by paying an annual fee to the Office of Public and Professional Guardians of the Department of Elderly Affairs and by informing the clerk of court and the Office of Public and Professional Guardians of any change in the status of his or her guardianship appointment. The amount of the annual fee to be imposed for performing these searches and the procedures for the retention of professional guardian fingerprints and the dissemination of search results shall be established by rule of the Department of Law Enforcement. At least once every 5 years, the Office of Public and Professional Guardians must request that the Department of Law Enforcement forward the fingerprints maintained under this section to the Federal Bureau of Investigation.
(5)(a)
A professional guardian, and each employee of a professional guardian who has a fiduciary responsibility to a ward, must complete, at his or her own expense, an investigation of his or her credit history before and at least once every 2 years after the date of the guardian’s registration with the Office of Public and Professional Guardians.
(b)
By October 1, 2016, the Office of Public and Professional Guardians shall adopt a rule detailing the acceptable methods for completing a credit investigation under this section. If appropriate, the Office of Public and Professional Guardians may administer credit investigations. If the office chooses to administer the credit investigation, the office may adopt a rule setting a fee, not to exceed $25, to reimburse the costs associated with the administration of a credit investigation.
(6)
The Office of Public and Professional Guardians may inspect at any time the results of any credit or criminal history record check of a public or professional guardian conducted under this section. The office shall maintain copies of the credit or criminal history record check results in the guardian’s registration file. If the results of a credit or criminal investigation of a public or professional guardian have not been forwarded to the Office of Public and Professional Guardians by the investigating agency, the clerk of the court shall forward copies of the results of the investigations to the office upon receiving them.
(7)
The requirements of this section do not apply to a professional guardian, or to the employees of a professional guardian, that is a trust company, a state banking corporation or state savings association authorized and qualified to exercise fiduciary powers in this state, or a national banking association or federal savings and loan association authorized and qualified to exercise fiduciary powers in this state.
F.S. 744.3145 Guardian education requirements.
(1)
Each ward is entitled to a guardian competent to perform the duties of a guardian necessary to protect the interests of the ward.
(2)
Each person appointed by the court to be a guardian, other than a parent who is the guardian of the property of a minor child, must receive a minimum of 8 hours of instruction and training which covers:
(a)
The legal duties and responsibilities of the guardian;
(b)
The rights of the ward;
(c)
The availability of local resources to aid the ward; and
(d)
The preparation of habilitation plans and annual guardianship reports, including financial accounting for the ward’s property.
(3)
Each person appointed by the court to be the guardian of the property of his or her minor child must receive a minimum of 4 hours of instruction and training that covers:
(a)
The legal duties and responsibilities of the guardian of the property;
(b)
The preparation of the initial inventory and annual guardianship accountings for the ward’s property; and
(c)
Use of guardianship assets.
(4)
Each person appointed by the court to be a guardian must complete the required number of hours of instruction and education within 4 months after his or her appointment as guardian. The instruction and education must be completed through a course approved by the chief judge of the circuit court and taught by a court-approved organization or through a course offered by the Office of Public and Professional Guardians under s. 744.2001. Court-approved organizations may include, but are not limited to, community or junior colleges, guardianship organizations, and the local bar association or The Florida Bar.
(5)
Expenses incurred by the guardian to satisfy the education requirement may be paid from the ward’s estate, unless the court directs that such expenses be paid by the guardian individually.
(6)
The court may, in its discretion, waive some or all of the requirements of this section or impose additional requirements. The court shall make its decision on a case-by-case basis and, in making its decision, shall consider the experience and education of the guardian, the duties assigned to the guardian, and the needs of the ward.
(7)
The provisions of this section do not apply to professional guardians.
F.S. 744.3201 Petition to determine incapacity.
(1)
A petition to determine incapacity of a person may be executed by an adult person.
(2)
The petition must be verified and must:
(a)
State the name, age, and present address of the petitioner and his or her relationship to the alleged incapacitated person;
(b)
State the name, age, county of residence, and present address of the alleged incapacitated person;
(c)
Specify the primary language spoken by the alleged incapacitated person, if known;
(d)
State whether the alleged incapacitated person uses assistance to exercise his or her rights, including, but not limited to, supported decisionmaking, and if so, why the assistance is inappropriate or insufficient to allow the person to independently exercise the person’s rights;
(e)
Allege that the petitioner believes the alleged incapacitated person to be incapacitated and specify the factual information on which such belief is based and the names and addresses of all persons known to the petitioner who have knowledge of such facts through personal observations;
(f)
State the name and address of the alleged incapacitated person’s attending or family physician, if known;
(g)
State which rights enumerated in s. 744.3215 the alleged incapacitated person is incapable of exercising, to the best of petitioner’s knowledge. If the petitioner has insufficient experience to make such judgments, the petition must so state; and
(h)
State the names, relationships, and addresses of the next of kin of the alleged incapacitated person, so far as are known, specifying the dates of birth of any who are minors.
(3)
A copy of any petition for appointment of guardian or emergency temporary guardian, if applicable, shall be filed with the petition to determine incapacity.
F.S. 744.3203 Suspension of power of attorney before incapacity determination.
(1)
At any time during proceedings to determine incapacity but before the entry of an order determining incapacity, the authority granted under an alleged incapacitated person’s power of attorney to a parent, spouse, child, or grandchild is suspended when the petitioner files a motion stating that a specific power of attorney should be suspended for any of the following grounds:
(a)
The agent’s decisions are not in accord with the alleged incapacitated person’s known desires.
(b)
The power of attorney is invalid.
(c)
The agent has failed to discharge his or her duties or incapacity or illness renders the agent incapable of discharging duties.
(d)
The agent has abused powers.
(e)
There is a danger that the property of the alleged incapacitated person may be wasted, misappropriated, or lost unless the authority under the power of attorney is suspended.
Grounds for suspending a power of attorney do not include the existence of a dispute between the agent and the petitioner which is more appropriate for resolution in some other forum or a legal proceeding other than a guardianship proceeding.
(2)
The motion must:
(a)
Identify one or more of the grounds in subsection (1);
(b)
Include specific statements of fact showing that grounds exist to justify the relief sought; and
(c)
Include the following statement: “Under penalties of perjury, I declare that I have read the foregoing motion and that the facts stated in it are true to the best of my knowledge and belief,” followed by the signature of the petitioner.
(3)
Upon the filing of a response to the motion by the agent under the power of attorney, the court shall schedule the motion for an expedited hearing. Unless an emergency arises and the agent’s response sets forth the nature of the emergency, the property or matter involved, and the power to be exercised by the agent, notice must be given to all interested persons, the alleged incapacitated person, and the alleged incapacitated person’s attorney. The court order following the hearing must set forth what powers the agent is permitted to exercise, if any, pending the outcome of the petition to determine incapacity.
(4)
In addition to any other remedy authorized by law, a court may award reasonable attorney fees and costs to an agent who successfully challenges the suspension of the power of attorney if the petitioner’s motion was made in bad faith.
(5)
The suspension of authority granted to persons other than a parent, spouse, child, or grandchild shall be as provided in s. 709.2109.
F.S. 744.3215 Rights of persons determined incapacitated.
(1)
A person who has been determined to be incapacitated retains the right:
(a)
To have an annual review of the guardianship report and plan.
(b)
To have continuing review of the need for restriction of his or her rights.
(c)
To be restored to capacity at the earliest possible time.
(d)
To be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation.
(e)
To have a qualified guardian.
(f)
To remain as independent as possible, including having his or her preference as to place and standard of living honored, either as he or she expressed or demonstrated his or her preference prior to the determination of his or her incapacity or as he or she currently expresses his or her preference, insofar as such request is reasonable.
(g)
To be properly educated.
(h)
To receive prudent financial management for his or her property and to be informed how his or her property is being managed, if he or she has lost the right to manage property.
(i)
To receive services and rehabilitation necessary to maximize the quality of life.
(j)
To be free from discrimination because of his or her incapacity.
(k)
To have access to the courts.
(l)
To counsel.
(m)
To receive visitors and communicate with others.
(n)
To notice of all proceedings related to determination of capacity and guardianship, unless the court finds the incapacitated person lacks the ability to comprehend the notice.
(o)
To privacy.
(2)
Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right:
(a)
To marry. If the right to enter into a contract has been removed, the right to marry is subject to court approval.
(b)
To vote.
(c)
To personally apply for government benefits.
(d)
To have a driver license.
(e)
To travel.
(f)
To seek or retain employment.
(3)
Rights that may be removed from a person by an order determining incapacity and which may be delegated to the guardian include the right:
(a)
To contract.
(b)
To sue and defend lawsuits.
(c)
To apply for government benefits.
(d)
To manage property or to make any gift or disposition of property.
(e)
To determine his or her residence.
(f)
To make health care decisions as defined in s. 765.101. If this right is removed from a person, then court approval for the withdrawal or withholding of life-prolonging procedures, as defined in s. 765.101, is required under s. 744.4431.
(g)
To make decisions about his or her social environment or other social aspects of his or her life.
(4)
Without first obtaining specific authority from the court, as described in s. 744.3725, a guardian may not:
(a)
Commit the ward to a facility, institution, or licensed service provider without formal placement proceeding, pursuant to chapter 393, chapter 394, or chapter 397.
(b)
Consent on behalf of the ward to the performance on the ward of any experimental biomedical or behavioral procedure or to the participation by the ward in any biomedical or behavioral experiment. The court may permit such performance or participation only if:
1.
It is of direct benefit to, and is intended to preserve the life of or prevent serious impairment to the mental or physical health of the ward; or
2.
It is intended to assist the ward to develop or regain his or her abilities.
(c)
Initiate a petition for dissolution of marriage for the ward.
(d)
Consent on behalf of the ward to termination of the ward’s parental rights.
(e)
Consent on behalf of the ward to the performance of a sterilization or abortion procedure on the ward.
F.S. 744.3371 Notice of petition for appointment of guardian and hearing.
(1)
When the petition for appointment of a guardian for an incapacitated person is heard upon the conclusion of the hearing in which the person is determined to be incapacitated, the court shall hear the petition without further notice. If the petition is heard on a later date, reasonable notice of the hearing must be served on the incapacitated person, the person’s attorney, if any, any guardian then serving, the person’s next of kin, and such other interested persons as the court may direct.
(2)
When a petition for appointment of a guardian for a minor is filed, formal notice must be served on the minor’s parents. If the petitioner has custody of the minor and the petition alleges that, after diligent search, the parents cannot be found, the parents may be served by informal notice, delivered to their last known address or addresses. When a parent petitions for appointment as guardian for his or her minor child, no notice is necessary unless the other parent is living and does not consent to the appointment.
F.S. 744.3675 Annual guardianship plan.
Each guardian of the person must file with the court an annual guardianship plan which updates information about the condition of the ward. The annual plan must specify the current needs of the ward and how those needs are proposed to be met in the coming year.
(1)
Each plan for an adult ward must, if applicable, include:
(a)
Information concerning the residence of the ward, including:
1.
The ward’s address at the time of filing the plan.
2.
The name and address of each place where the ward was maintained during the preceding year.
3.
The length of stay of the ward at each place.
4.
A statement of whether the current residential setting is best suited for the current needs of the ward.
5.
Plans for ensuring during the coming year that the ward is in the best residential setting to meet his or her needs.
(b)
Information concerning the medical and mental health conditions and treatment and rehabilitation needs of the ward, including:
1.
A résumé of any professional medical treatment given to the ward during the preceding year.
2.
The report of a physician or an advanced practice registered nurse registered under s. 464.0123 who examined the ward no more than 90 days before the beginning of the applicable reporting period. If the guardian has requested a physician to complete the examination and prepare the report and the physician has delegated that responsibility, the examination may be performed and the report may be prepared and signed by a physician assistant acting pursuant to s. 458.347(4)(h) or s. 459.022(4)(g), or by an advanced practice registered nurse acting pursuant to s. 464.012(3). The report must contain an evaluation of the ward’s condition and a statement of the current level of capacity of the ward.
3.
The plan for providing medical, mental health, and rehabilitative services in the coming year.
(c)
Information concerning the social condition of the ward, including:
1.
The social and personal services currently used by the ward.
2.
The social skills of the ward, including a statement of how well the ward communicates and maintains interpersonal relationships.
3.
The social needs of the ward.
(d)1.
A list of any preexisting:
a.
Orders not to resuscitate executed in accordance with s. 401.45(3) and the dates such orders were signed; or
b.
Advance directives as defined in s. 765.101 and the dates such directives were signed.
2.
For each item listed under subparagraph 1., the plan must state whether the order or directive has been revoked, modified, or suspended by the court.
(e)
A description of the steps taken to identify and locate a preexisting order not to resuscitate or advance directive.
(2)
Each plan filed by the legal guardian of a minor must include:
(a)
Information concerning the residence of the minor, including:
1.
The minor’s address at the time of filing the plan.
2.
The name and address of each place the minor lived during the preceding year.
(b)
Information concerning the medical and mental health conditions and treatment and rehabilitation needs of the minor, including:
1.
A résumé of any professional medical treatment given to the minor during the preceding year.
2.
A report from the physician who examined the minor no more than 180 days before the beginning of the applicable reporting period that contains an evaluation of the minor’s physical and mental conditions.
3.
The plan for providing medical services in the coming year.
(c)
Information concerning the education of the minor, including:
1.
A summary of the school progress report.
2.
The social development of the minor, including a statement of how well the minor communicates and maintains interpersonal relationships.
3.
The social needs of the minor.
(3)
Each plan for an adult ward must address the issue of restoration of rights to the ward and include:
(a)
A summary of activities during the preceding year that were designed to enhance the capacity of the ward.
(b)
A statement of whether the ward can have any rights restored.
(c)
A statement of whether restoration of any rights will be sought.
(4)
The court, in its discretion, may require reexamination of the ward by a physician at any time.
F.S. 744.3678 Annual accounting.
(1)
Each guardian of the property must file an annual accounting with the court.
(2)
The annual accounting must include:
(a)
A full and correct account of the receipts and disbursements of all of the ward’s property over which the guardian has control and a statement of the ward’s property on hand at the end of the accounting period. This paragraph does not apply to any property or any trust of which the ward is a beneficiary but which is not under the control or administration of the guardian.
(b)
A copy of the annual or year-end statement of all of the ward’s cash accounts from each of the institutions where the cash is deposited.
(3)
The guardian must obtain a receipt, canceled check, or other proof of payment for all expenditures and disbursements made on behalf of the ward. The guardian must preserve all evidence of payment, along with other substantiating papers, for a period of 3 years after his or her discharge. The receipts, proofs of payment, and substantiating papers need not be filed with the court but shall be made available for inspection and review at the time and place and before the persons as the court may order.
(4)
The guardian shall pay from the ward’s estate to the clerk of the circuit court a fee based upon the following graduated fee schedule, upon the filing of the annual financial return, for the auditing of the return:
(a)
For estates with a value of $25,000 or less the clerk of the court may charge a fee of up to $20, from which the clerk shall remit $5 to the Department of Revenue for deposit into the General Revenue Fund.
(b)
For estates with a value of more than $25,000 up to and including $100,000 the clerk of the court may charge a fee of up to $85, from which the clerk shall remit $10 to the Department of Revenue for deposit into the General Revenue Fund.
(c)
For estates with a value of more than $100,000 up to and including $500,000 the clerk of the court may charge a fee of up to $170, from which the clerk shall remit $20 to the Department of Revenue for deposit into the General Revenue Fund.
(d)
For estates with a value in excess of $500,000 the clerk of the court may charge a fee of up to $250, from which the clerk shall remit $25 to the Department of Revenue for deposit into the General Revenue Fund.
Upon petition by the guardian, the court may waive the auditing fee upon a showing of insufficient funds in the ward’s estate. Any guardian unable to pay the auditing fee may petition the court for a waiver of the fee. The court may waive the fee after it has reviewed the documentation filed by the guardian in support of the waiver.
(5)
This section does not apply if the court determines that the ward receives income only from social security benefits and the guardian is the ward’s representative payee for the benefits.
F.S. 744.3679 Simplified accounting procedures in certain cases.
(1)
In a guardianship of property, when all property of the estate is in designated depositories under s. 69.031 and the only transactions that occur in that account are interest accrual, deposits from a settlement, or financial institution service charges, the guardian may elect to file an accounting consisting of:
(a)
The original or a certified copy of the year-end statement of the ward’s account from the financial institution; and
(b)
A statement by the guardian under penalty of perjury that the guardian has custody and control of the ward’s property as shown in the year-end statement.
(2)
The accounting allowed by subsection (1) is in lieu of the accounting and auditing procedures under s. 744.3678(2). However, any interested party may seek judicial review as provided in s. 744.3685.
(3)
The guardian need not be represented by an attorney in order to file the annual accounting allowed by subsection (1).
F.S. 744.3685 Order requiring guardianship report; contempt.
(1)
If a guardian fails to file the guardianship report, the court shall order the guardian to file the report within 15 days after the service of the order upon her or him or show cause why she or he may not be compelled to do so.
(2)
If a guardian fails to comply with the submission of records and documents requested by the clerk during the audit, upon a showing of good cause by affidavit of the clerk which shows the reasons the records must be produced, the court may order the guardian to produce the records and documents within a period specified by the court unless the guardian shows good cause as to why the guardian may not be compelled to do so before the deadline specified by the court. The affidavit of the clerk shall be served with the order.
(3)
A copy of an order entered pursuant to subsection (1) or subsection (2) shall be served on the guardian or on the guardian’s resident agent. If the guardian fails to comply with the order within the time specified by the order without good cause, the court may cite the guardian for contempt of court and may fine her or him. The fine may not be paid out of the ward’s property.
F.S. 744.3701 Confidentiality.
(1)
Unless otherwise ordered by the court, upon a showing of good cause, an initial, annual, or final guardianship report or amendment thereto, or a court record relating to the settlement of a claim, is subject to inspection only by the court, the clerk or the clerk’s representative, the guardian and the guardian’s attorney, the guardian ad litem with regard to the settlement of the claim, the ward if he or she is at least 14 years of age and has not been determined to be totally incapacitated, the ward’s attorney, the minor if he or she is at least 14 years of age, or the attorney representing the minor with regard to the minor’s claim, or as otherwise provided by this chapter.
(2)
The court may direct disclosure and recording of parts of an initial, annual, or final report or amendment thereto, or a court record relating to the settlement of a claim, including a petition for approval of a settlement on behalf of a ward or minor, a report of a guardian ad litem relating to a pending settlement, or an order approving a settlement on behalf of a ward or minor, in connection with a real property transaction or for such other purpose as the court allows.
(3)
A court record relating to the settlement of a ward’s or minor’s claim, including a petition for approval of a settlement on behalf of a ward or minor, a report of a guardian ad litem relating to a pending settlement, or an order approving a settlement on behalf of a ward or minor, is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and may not be disclosed except as specifically authorized.
(4)
The clerk may disclose confidential information to the Department of Children and Families or law enforcement agencies for other purposes as provided by court order.
F.S. 744.3715 Petition for interim judicial review.
(1)
At any time, any interested person, including the ward, may petition the court for review alleging that the guardian is not complying with the guardianship plan, is exceeding his or her authority under the guardianship plan, is acting in a manner contrary to s. 744.361, is denying visitation between the ward and his or her relatives in violation of s. 744.361(13), or is not acting in the best interest of the ward. The petition for review must state the nature of the objection to the guardian’s action or proposed action. Upon the filing of any such petition, the court shall review the petition and act upon it expeditiously.
(2)
If the petition for review is found to be without merit, the court may assess costs and attorney’s fees against the petitioner.
F.S. 744.3725 Procedure for extraordinary authority.
Before the court may grant authority to a guardian to exercise any of the rights specified in s. 744.3215(4), the court must:
(1)
Appoint an independent attorney to act on the incapacitated person’s behalf, and the attorney must have the opportunity to meet with the person and to present evidence and cross-examine witnesses at any hearing on the petition for authority to act;
(2)
Receive as evidence independent medical, psychological, and social evaluations with respect to the incapacitated person by competent professionals or appoint its own experts to assist in the evaluations;
(3)
Personally meet with the incapacitated person to obtain its own impression of the person’s capacity, so as to afford the incapacitated person the full opportunity to express his or her personal views or desires with respect to the judicial proceeding and issue before the court;
(4)
Find by clear and convincing evidence that the person lacks the capacity to make a decision about the issue before the court and that the incapacitated person’s capacity is not likely to change in the foreseeable future; and
(5)
Be persuaded by clear and convincing evidence that the authority being requested is in the best interests of the incapacitated person.
The provisions of this section and s. 744.3215(4) are procedural and do not establish any new or independent right to or authority over the termination of parental rights, dissolution of marriage, sterilization, abortion, or the termination of life support systems.
F.S. 744.3735 Annual appearance of the guardian.
The court may require the guardian to appear before the court at the time the guardian files the annual guardianship report or at such other time as the court determines, in order for the court to inquire as to any matter relating to the well-being of the ward.
F.S. 744.4431 Guardianship power regarding life-prolonging procedures.
(1)
Except as provided in this section, decisions by a professional guardian, as defined in s. 744.102, to withhold or withdraw life-prolonging procedures from, or to execute an order not to resuscitate for, a ward must be approved by the court. A professional guardian appointed to act on behalf of a ward’s person must petition the court pursuant to the Florida Probate Rules for authority to consent to withhold or withdraw life-prolonging procedures or to execute an order not to resuscitate before taking such action, except as provided in subsection (7).
(2)
The petition by a professional guardian must contain all of the following:
(a)
A description of the proposed action or decision for which court approval is sought and documentation of the authority of the professional guardian to make health care decisions on behalf of the ward.
(b)
A statement regarding any known objections to the relief sought in the petition.
(c)
A description of the ward’s known wishes, including all advance directives executed by the ward, or, if there is no indication of the ward’s wishes, a description of why the relief sought is in the best interests of the ward.
(d)
Any exigent circumstances that exist which necessitate immediate relief.
(e)
A description of the circumstances requiring the proposed action or decision and evidence, including affidavits, medical records, or other supporting documentation, showing that the proposed action or decision satisfies the criteria in s. 765.305, s. 765.401(3), or s. 765.404, as applicable.
(3)
A professional guardian must show by clear and convincing evidence that the proposed action or decision he or she is requesting would have been the decision the ward would have chosen if the ward had capacity or, if there is no indication of what the ward would have chosen, that the proposed action or decision is in the best interests of the ward.
(4)
A professional guardian must serve notice of the petition, and of any hearing, on the ward; the ward’s attorney, if any; the ward’s next of kin, if known; and any other interested persons as the court may direct, unless such requirement is waived by the court.
(5)
The court must hold a hearing on the petition if:
(a)
The ward or the ward’s attorney objects to the petition;
(b)
The ward’s next of kin or an interested person objects on any basis under s. 765.105(1);
(c)
The professional guardian, the ward, or the ward’s attorney requests a hearing; or
(d)
The court has insufficient information to determine whether the criteria for granting the petition has been met.
(6)
If a hearing is required and exigent circumstances are alleged, the court must hold a preliminary hearing within 72 hours after the petition is filed and do one of the following:
(a)
Rule on the relief requested immediately after the preliminary hearing; or
(b)
Conduct an evidentiary hearing within 4 days after the preliminary hearing and rule on the relief requested immediately after the evidentiary hearing.
(7)
Court approval is not required for the following decisions:
(a)
A decision to withhold or withdraw life-prolonging procedures made by a professional guardian to whom authority has been granted by the court under s. 744.3115 to carry out the instructions in or to take actions consistent with the ward’s advance directive, as long as there are no known objections from the ward; the ward’s attorney; the ward’s next of kin, if known; and any other interested persons as the court may direct based on s. 765.105(1).
(b)
A decision by a professional guardian who has been delegated health care decisionmaking authority to execute an order not to resuscitate, as described in s. 401.45(3)(a), if the ward is in a hospital and the following conditions are met:
1.
The ward’s primary treating physician and at least one other consulting physician document in the ward’s medical record that:
a.
There is no reasonable medical probability for recovery from or a cure of the ward’s underlying medical condition;
b.
The ward is in an end-stage condition, a terminal condition, or a persistent vegetative state as those terms are defined in s. 765.101, and that the ward’s death is imminent; and
c.
Resuscitation will cause the ward physical harm or additional pain.
2.
The professional guardian has notified the ward’s next of kin, if known, and any interested persons as the court may direct and the decision is not contrary to the ward’s expressed wishes and there are no known objections from the ward; the ward’s attorney; the ward’s next of kin, if known; or any other interested persons as the court may direct on the basis of s. 765.105(1).
(8)
Within 2 business days after executing an order not to resuscitate under paragraph (7)(b), a professional guardian must notify the court in writing of all of the following:
(a)
The date the order not to resuscitate was executed.
(b)
The location of the ward when the order not to resuscitate was executed.
(c)
The names of the physicians who documented the ward’s condition in the ward’s medical record.
F.S. 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. 744.2003.
(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.
F.S. 744.21031 Public records exemption.
(1)
For purposes of this section, the term:
(a)
“Agency” has the same meaning as provided in s. 119.011.
(b)
“Employee with fiduciary responsibility” means an employee of a public guardian who has the ability to direct any transactions of a ward’s funds, assets, or property; who, under the supervision of a guardian, manages the care of a ward; or who makes any health care decision as defined in s. 765.101 on behalf of a ward.
(c)
“Telephone numbers” has the same meaning as provided in s. 119.071(4)(d)1.c.
(2)
The home addresses, telephone numbers, and dates of birth of current or former public guardians and employees with fiduciary responsibility; photographs of former public guardians and employees with fiduciary responsibility; the names, home addresses, telephone numbers, and dates of birth of the spouses and children of current or former public guardians and employees with fiduciary responsibility who are not themselves current or former public guardians or employees with fiduciary responsibility; and the names and locations of schools and day care facilities attended by the children of such persons are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This exemption applies to information held by an agency before, on, or after July 1, 2018. An agency that is the custodian of the information specified in this section shall maintain the exempt status of that information only if the current or former public guardians and employees with fiduciary responsibility submit to the custodial agency a written request for maintenance of the exemption.
Source: FL Statutes (Official Site)URL: https://www.flsenate.gov/Laws/Statutes/2025/Chapter744/AllFetched: 7/8/2026