The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/SB 994
INTRODUCER: Rules Committee; Judiciary Committee; and Senator Passidomo, and others
SUBJECT: Guardianship
DATE: February 13, 2020 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Delia Hendon CF Favorable
2. Davis Cibula JU Fav/CS
3. Delia Phelps RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 994 revises the guardianship statutes to ensure that a ward’s personal and property
interests are carefully protected by and from a guardian. The bill:
 Requires a court, when appointing a guardian, to inquire into and consider potential
disqualifications and conflicts of interest;
 Specifies that a plenary or limited guardian must obtain court approval before consenting to
or obtaining an order not to resuscitate a ward, and when such request is made pursuant to an
emergency, requires a court to rule on the within 72 hours of filing;
 Mandates that a petition for appointment of a guardian or professional guardian disclose
certain background information about the guardian seeking appointment and whether a less
restrictive arrangement, other than a guardianship, could meet the needs of the ward;
 Defines the term “alternatives to guardianship;”
 Prohibits a professional guardian from petitioning for appointment unless the petitioner is a
relative of the alleged incapacitated person or minor or the petitioner is a public guardian
who seeks appointment for a person of limited financial means and the public guardian will
be paid by the Office of Public and Professional Guardians or a local government;
 Specifies that the initial guardianship plan and each annual guardianship plan must include a
list of preexisting orders not to resuscitate or preexisting advance directives and certain
information about those documents;
 Requires that, in the annual guardianship report, a guardian report any payments or
remuneration received from any source for services rendered for the ward;
BILL: CS/CS/SB 994 Page 2
 Prohibits a guardian from offering, paying, soliciting, or receiving a commission, benefit, or
split-fee arrangement in return for engaging in a transaction for goods or services on behalf
of an alleged incapacitated person or minor or a ward; and
 Prohibits a guardian from having an interest in a business transaction or activity with certain
individuals unless prior approval is granted by a court order or the relationship existed before
the guardian was appointed.
The bill could have an indeterminate fiscal impact on the state court system and has an effective
date of July 1, 2020.
II. Present Situation:
Guardianship
A guardian may be described as someone who has been given the legal duty and authority to care
for another person or his or her property because of that person’s infancy, disability, or
incapacity.1 Guardianships are trust relationships designed to protect vulnerable members of
society who do not have the ability to protect themselves. The person for whom a guardian is
appointed is called a “ward.”2 Once a guardian is appointed by the court, the guardian serves as a
surrogate decision-maker and makes personal or financial decisions, or both, for the ward.3
Guardianships are generally disfavored because the ward loses his or her individual and civil
rights. A guardian may be appointed only if the court finds there is no less restrictive alternative
to guardianship.
Two Forms of Guardianship
There are two main forms of guardianship: guardianship over the person or guardianship over
the property, which may be limited or plenary.4 For adults, a guardianship may be established
when a person has demonstrated that he or she is unable to manage his or her own affairs. If the
adult is competent, this can be accomplished voluntarily. However, when an individual’s mental
competence is in question, an involuntary guardianship may be established through the
adjudication of incompetence which is determined by a court appointed examination committee.5
Fiduciary Duty
Florida courts have long recognized the relationship between a guardian and his or her ward as a
classic fiduciary relationship.6 A fiduciary relationship exists between two persons when one of
them is under a duty to act or to give advice for the benefit of another upon matters within the
scope of that relationship.7 The most basic duty of a fiduciary is the duty of loyalty: a fiduciary
must refrain from self-dealing, must not take unfair advantage of the ward, must act in the best
1
BLACK’S LAW DICTIONARY, 11th edition, 2019.
2
Section 744.102(22), F.S.
3
Section 744.102(9), F.S.
4
See generally, s. 744.102(9), F.S. A plenary guardian exercises all delegable rights and powers of the ward after a court has
determined that the ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property.
5
See generally, s. 744.102(12), F.S.
6
In re Guardianship of Lawrence v. Norris, 563 So. 2d 195, 197 (Fla. 1st DCA 1990).
7
Doe v. Evans, 814 So. 2d 370, 374 (Fla. 2002).
BILL: CS/CS/SB 994 Page 3
interest of the ward, and must disclose material facts.8 In addition to the duty of loyalty, a
fiduciary also owes a duty of care to carry out his or her responsibilities in an informed and
considered manner.
Section 744.361, F.S., imposes specific duties upon a guardian consistent with the basic duties of
a fiduciary including protecting and preserving the property of the ward and his or her overall
physical and social health. A guardian must file with the court an initial guardianship report,9 an
annual guardianship report,10 and an annual accounting of the ward’s property. 11 The reports
provide evidence of the guardian’s faithful execution of his or her fiduciary duties.12
At the heart of a court’s interpretation of a fiduciary relationship is a concern that persons who
assume trustee-like positions with discretionary power over the interests of others might breach
their duties and abuse their position. Section 744.446, F.S., states that 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.” In the event of a
breach by the guardian of the guardian’s fiduciary duty, the court must take the necessary actions
to protect the ward and the ward’s assets.13
Professional Guardians
In Florida, a “professional guardian” means any guardian who has, at any time, rendered services
to three or more wards as their guardian.14 A professional guardian must register annually with
the Statewide Public Guardianship Office.15 Professional guardians must receive a minimum of
40 hours of instruction and training and a minimum of 16 hours of continuing education every 2
years after the initial educational requirement is met. The instruction and education must be
completed through a course approved or offered by the Statewide Public Guardianship Office.16
A professional guardian is subject to a level 2 background check,17 an investigation of the
guardian’s credit history,18 and is required to demonstrate competency to act as a professional
guardian by taking an examination approved by the DOEA.19 These requirements do not apply to
a professional guardian or the employees of that professional guardian when that guardian is a:
 Trust company;
 State banking corporation;
8
Capital Bank v. MVP, Inc. 644 So. 2d 515, 520 (Fla. 3d DCA 1994).
9
Section 744.362, F.S.
10
Section 744.367, F.S.
11
Section 744.3678, F.S.
12
Section 744.368, F.S.
13
Section 744.446(4), F.S.
14
Section 744.102(17), F.S.
15
Section 744.2002(1) F.S.
16
Section 744.2003(3), F.S.
17
Section 744.2003(5), F.S. Level 2 screenings are more thorough than level 1 screenings because they apply to positions of
responsibility or trust, often with more vulnerable people, such as children, the elderly, or the disabled. Level 2 screenings
require a security background investigation that includes fingerprint-based searches for statewide criminal history records
through FDLE and a national criminal history records check through the Federal Bureau of Investigation. It may also include
local criminal records checks. Section 435.04, F.S.
18
Section 744.2003(4), F.S.
19
Section 744.2003(6), F.S.
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 State savings association authorized and qualified to exercise fiduciary powers in this state;
or
 National banking association or federal savings and loan association authorized and qualified
to exercise fiduciary duties in this state.20
Determining Incapacity
The process to determine incapacity and the appointment of a guardian begins with a petition
filed in the appropriate circuit court. A petition may be executed by an adult and must be served
on and read to the alleged incapacitated person. The notice and copies of the petition must be
provided to the attorney for the alleged incapacitated person and served on all next of kin
identified in the petition.21
In the hearing on the petition alleging incapacity, the partial or total incapacity of the person
must be established by clear and convincing evidence.22 The court must enter a written order
determining incapacity after finding that a person is incapacitated with respect to the exercise of
a particular right or all rights. A person is determined to be incapacitated only with respect to
those rights specified in the court’s order.23 When an order determines that a person is incapable
of exercising delegable rights, the court must consider whether there is an alternative to
guardianship which will sufficiently address the problems of the incapacitated person. If an
alternative to guardianship will not sufficiently address the problems of the incapacitated person,
a guardian will be appointed.24
Court Proceedings
The court retains jurisdiction over all guardianships and shall review the appropriateness and
extent of a guardianship annually.25 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 or is exceeding his or her authority under the guardianship plan and is not acting in the best
interest of the ward. If the petition for review is found to be without merit the court may assess
costs and attorney fees against the petitioner.26
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.27 Fees and costs incurred are generally awardable
from the guardianship estate, unless the court finds the requested compensation substantially
unreasonable.28
20
Section 744.2003(10), F.S.
21
Section 744.331(1), F.S.
22
Section 744.331(5)(c), F.S.
23
Section 744.331(6), F.S.
24
Section 744.331(6)(b), F.S.
25
Section 744.372, F.S.
26
Section 744.3715, F.S.
27
Section 744.108(1), F.S.
28
Section 744.108(8), F.S.
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A ward has the right to be restored to capacity at the earliest possible time.29 The ward, or any
interested person filing a suggestion of capacity, has the burden of proving the ward is capable of
exercising some or all of the rights which were removed. Immediately upon the filing of the
suggestion of capacity, the court must appoint a physician to examine the ward. The physician
must examine the ward and file a report with the court within 20 days.30 All objections to the
suggestion of capacity must be filed within 20 days after formal notice is served on the ward,
guardian, attorney for the ward, if any, and any other interested persons designated by the
court.31 If an objection is timely filed, or if the medical examination suggests that full restoration
is not appropriate, the court must set the matter for hearing.32
Guardian Compensation
The 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 assets of the guardianship estate unless the court finds the requested
compensation to be substantially unreasonable.33 Before the fees may be paid, a petition for fees
or expenses must be filed with the court and accompanied by an itemized description of the
services performed for the fees and expenses sought to be recovered.34 When fees for a guardian
or an attorney are submitted to the court for determination, the court shall consider:
 The time and labor required;
 The novelty and difficulty of the questions involved and the skill required to perform the
services properly;
 The likelihood that the acceptance of the particular employment will preclude other
employment of the person;
 The fee customarily charged in the locality for similar services;
 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;
 The results obtained;
 The time limits imposed by the circumstances;
 The nature and length of the relationship with the incapacitated person; and
 The experience, reputation, diligence, and ability of the person performing the service.35
Conflict of Interest
Unless the court gives prior approval, or the relationship existed prior to the appointment of the
guardian and is disclosed to the court in the petition for appointment of a guardian, a guardian
may not:
 Have any interest, financial or otherwise, direct or indirect, in any business transaction or
activity with the guardianship;
 Acquire an ownership, possessory, security, or other monetary interest adverse to the ward;
29
Section 744.3215(1)(c), F.S.
30
Section 744.464(2)(b), F.S.
31
Section 744.464(2)(d), F.S.
32
Section 744.464(2)(e), F.S.
33
Section 744.108(1) and (8), F.S.
34
Section 744.108(5), (7), F.S.
35
Section 744.108(2), F.S.
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 Be designated as a beneficiary on any life insurance policy, pension, or benefit plan of the
ward unless such designation was made by the ward prior to adjudication of incapacity; and
 Directly or indirectly purchase, rent, lease, or sell any property or services from or to any
business entity that the guardian, or the guardian’s spouse or family, is an officer, partner,
director, shareholder, or proprietor, or has any financial interest.36
A guardian with such a conflict of interest may be removed from the guardianship by the court.37
End of Life Decision-Making
Florida law defines an advance directive as a witnessed, oral statement or written instruction that
expresses a person’s desires about any aspect of his or her future health care, including the
designation of a health care surrogate, a living will, or an anatomical gift.38 Designation of each
of these can serve different purposes and have their own unique requirements and specifications
under the law.
One type of advance directive, a “do not resuscitate order” (DNRO) results in the withholding of
cardiopulmonary resuscitation (CPR) from an individual if a DNRO is presented to the health
care professional treating the patient. For the DNRO to be valid, it must be on the form adopted
by the Department of Health, signed by the patient’s physician and by the patient, or if the
patient is incapacitated, the patient’s health care surrogate or proxy, court-appointed guardian, or
attorney in fact under a durable power of attorney.39 Florida’s DNRO form is printed on yellow
paper.40 It is the responsibility of the Emergency Medical Services provider to e