HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/CS/HB 1349 Guardianship Data Transparency
SPONSOR(S): Health & Human Services Committee, Appropriations Committee, Children, Families &
Seniors Subcommittee, Chaney and others
TIED BILLS: CS/HB 1351 IDEN./SIM. BILLS: CS/SB 1710
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Children, Families & Seniors Subcommittee 15 Y, 0 N, As CS Morris Brazzell
2) Civil Justice & Property Rights Subcommittee 17 Y, 0 N Brascomb Jones
3) Appropriations Committee 25 Y, 0 N, As CS Nobles Pridgeon
4) Health & Human Services Committee 17 Y, 0 N, As CS Morris Calamas
SUMMARY ANALYSIS
When an individual is unable to make legal decisions regarding his or her person or property, a court may
appoint a guardian to act on his or her behalf. A person served by a guardian is a ward, and a guardian may
oversee a ward’s person or property or both. When a person becomes a ward, that person loses those civil
and legal rights transferred to the guardian. When a guardian is given full (plenary) guardianship, the guardian
has authority to make all decisions for a ward, such as deciding where the ward lives and whether to sell the
ward’s property.
Florida’s guardianship system, governed by ch. 744, F.S., involves a variety of parties, including alleged
incompetent persons and wards; guardians; circuit judges who appoint guardians and oversee their service to
individual wards; the clerks of court, who receive filings by guardians and audit them; attorneys, who represent
guardians and alleged incompetent persons; family members of wards; and the Department of Elder Affairs
(DOEA), which regulates professional guardians.
Various task forces, and situations where guardians have made unethical decisions concerning wards, have
highlighted the lack of data within Florida’s guardianship system. A recently-formed task force found that basic
information about guardianships, such as the number of wards in the state, is unavailable.
The bill requires the Florida of Clerks of Court Operations Corporation (CCOC) and the Clerks of Court to
establish a database of guardian and guardianship information which may only be accessed by judges, judicial
staff, and the clerks of court. The database must include a publicly accessible search component for current
data on the number of wards under the care of a guardian in each county and the type of each guardianship,
however this data must not contain the ward’s personal identifying information. The bill also requires the CCOC
to generate quarterly reports using this data containing aggregated and deidentified data for publication on
DOEA’s website. Additionally, the bill requires the Office of Program Policy Analysis and Governmental
Accountability to use the data to evaluate trends in guardianships in this state and conduct a comparative
analysis of guardianship laws in other states.
The bill requires DOEA to publish professional guardian registration profiles on its website, which must be
searchable by the public.
The bill provides an appropriation of $2,400,000 from the General Revenue Fund to the Justice Administrative
Commission for distribution to the Florida Clerks of Court Operations Corporation and $340,000 from the
General Revenue Fund to the DOEA for the purpose of implementing the provisions of the act.
The bill provides an effective date of July 1, 2022.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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 FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Guardianship
When an individual is unable to make legal decisions regarding his or her person or property, a court
may appoint a guardian to act on his or her behalf.1 Adjudicating a person totally incapacitated and in
need of a guardian deprives a person of his or her civil and legal rights;2 accordingly, the Legislature
has recognized that the least restrictive form of guardianship should be used to ensure the most
appropriate level of care and the protection of such person’s rights.3
The process to determine an individual’s incapacity and the subsequent appointment of a guardian
begins with a verified petition detailing the factual information supporting the reasons the petitioner
believes the individual to be incapacitated, including the rights the alleged incapacitated person (AIP) is
incapable of exercising.4 Once a person has been adjudicated incapacitated, such a person becomes a
“ward,” the court appoints a guardian, and letters of guardianship are issued. 5 The order appointing a
guardian must be consistent with the ward’s welfare and safety, must be the least restrictive
appropriate alternative, and must reserve to the ward the right to make decisions in all matters
commensurate with his or her ability to do so.6
Relationship Between Guardian and Ward
The relationship between a guardian and his or her ward is a fiduciary relationship,7 meaning that the
guardian is under a duty to act for or to give advice for the benefit of the ward upon matters within the
scope of the relationship.8 The guardian, as fiduciary, must:9
 Act within the scope of the authority granted by the court and as provided by law;
 Act in good faith;
 Not act in a manner contrary to the ward's best interests under the circumstances; and
 Use any special skills or expertise the guardian possesses when acting on behalf of the ward.
Additionally, s. 744.446, F.S., states that the fiduciary relationship 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). As such, the guardian must act in the best interest of the ward and carry
out his or her responsibilities in an informed and considered manner. If a guardian breaches his or her
fiduciary duty to the ward, a court may intervene.10
A guardian can either be “limited” or “plenary.”11 A limited guardian is appointed by the court to exercise
the legal rights and powers specifically designated by the court 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.12 A plenary
1 S. 744.102(9), F.S.
2 S. 744.101(1), F.S.
3 S. 744.101(2), F.S
4 S. 744.3201, F.S.
5 Ss. 744.3371-744.345, F.S.
6 S. 744.2005, F.S.
7 Lawrence v. Norris, 563 So. 2d 195, 197 (Fla. 1st DCA 1990); s. 744.361(1), F.S.
8 Doe v. Evans, 814 So. 2d 370, 374 (Fla. 2002).
9 S. 744.361(1), F.S.
10 S. 744.446(4), F.S.
11 S. 744.102(9), F.S.
12 Id.
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 guardian is 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.13
Powers and Duties of the Guardian
The guardian of an incapacitated person may exercise only those rights removed from the ward and
delegated to the guardian.14 The guardian has a great deal of power when it comes to managing the
ward’s estate. Some of these powers require court approval before they may be exercised.
Examples of Powers That May Be Exercised By a Guardian
With Court Approval 15 Without Court Approval 16
 Enter into contracts that are appropriate for, and in  Retain assets owned by the ward.
the best interest of, the ward.  Receive assets from fiduciaries or other sources.
 Perform, compromise, or refuse performance of a  Insure the assets of the estate against damage, loss, and
ward’s existing contracts. liability.
 Alter the ward’s property ownership interests,  Pay taxes and assessments on the ward’s property.
including selling, mortgaging, or leasing any real  Pay reasonable living expenses for the ward, taking into
property (including the homestead), personal consideration the ward’s current finances.
property, or any interest therein.  Pay incidental expenses in the administration of the estate.
 Borrow money to be repaid from the property of the  Prudently invest liquid assets belonging to the ward.
ward or the ward’s estate.  Sell or exercise stock subscription or conversion rights.
 Renegotiate, extend, renew, or modify the terms of  Consent to the reorganization, consolidation, merger,
any obligation owing to the ward. dissolution, or liquidation of a corporation or other business
 Prosecute or defend claims or proceedings in any enterprise of the ward.
jurisdiction for the protection of the estate.  Employ, pay, or reimburse persons, including attorneys,
 Exercise an option contained in an insurance policy auditors, investment advisers, care managers, or agents,
payable to the ward. even if they are associated with the guardian, to advise or
 Make gifts of the ward’s property to members of the assist the guardian in the performance of his or her duties.
ward’s family in estate and income tax planning.
 Pay reasonable funeral, interment, and grave marker
expenses for the ward.
Florida law also imposes a number of duties on a guardian after the appointment to a ward in order to
provide appropriate services to that ward. The guardian must: 17
 File an initial report within 60 days after the letters of guardianship are signed; 18
 File an annual report with the court consisting of an annual accounting and/or an annual
guardianship plan;
 Implement the guardianship plan;
 Consult with other guardians appointed, if any;
 Protect and preserve the property of the ward; invest it prudently, apply income first to the ward
before the ward’s dependents, and account for it faithfully;
 Observe the standards in dealing with the guardianship property that would be observed by a
prudent person dealing with the property of another; and
 If authorized by the court, 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 thereof.
Guardian Compensation
13 Id.
14
S. 744.361(1), F.S.
15 S. 744.441, F.S.
16 Id.
17 S. 344.361. F.S.
18 S. 744.362(1), F.S.
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 The guardian, or an attorney who has rendered services to the ward or to the guardian on the ward’s
behalf,19 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.20 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.21
Appointment of a Guardian
In Florida, the circuit court appoints a guardian to a ward. The following may be appointed guardian of a
ward:22
 Any resident of Florida who is 18 years of age or older and has full legal rights and capacity;
 A nonresident, if he or she is related to the ward by blood, marriage, or adoption;
 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 Florida;
 A nonprofit corporation organized for religious or charitable purposes and existing under the
laws of Florida;
 A judge who is related to the ward by blood, marriage, or adoption, or has a close relationship
with the ward or the ward’s family, and serves without compensation;
 A provider of health care services to the ward, whether direct or indirect, when the court
specifically finds that there is no conflict of interest with the ward’s best interests; or
 A for-profit corporation that meets certain qualifications, including being wholly owned by the
person who is the circuit's public guardian in the circuit where the corporate guardian is
appointed.
Appointment of a Professional Guardian
A professional guardian is a guardian who has, at any time, rendered services to three or more wards
as their guardian; however, a person serving as a guardian for two or more relatives is not considered a
professional guardian. A public guardian is considered a professional guardian for purposes of
regulation, education, and registration.23
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.24 The court must consider, and the findings must reference,
the following factors:25
 Whether the guardian is related by blood or marriage to the ward;
 Whether the guardian has educational, professional, or business experience relevant to the
nature of the services sought to be provided;
 Whether the guardian has the capacity to manage the financial resources involved;
 Whether the guardian has the ability to meet the requirements of the law and the unique needs
of the individual case;
 The wishes expressed by an incapacitated person as to who shall be appointed guardian;
 The preference of a minor who is age 14 or over as to who should be appointed guardian;
 Any person designated as guardian in any will in which the ward is a beneficiary; and
19 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. S. 744.108(4), F.S.
20 S. 744.108(1), (8), F.S.
21 S. 744.108(5), (7), F.S.
22 S. 744.309, F.S.
23 S. 744.102(17), F.S
24 S. 744.312(4)(a), F.S.
25 S. 744.312(2)-(3), F.S.
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  The wishes of the ward’s next of kin, when the ward cannot express a preference.
Additionally, current law prohibits the court from giving preference to the appointment of a person
based solely on the fact that such person was appointed by the court to serve as an emergency
temporary guardian.26 When a professional guardian is appointed as an emergency temporary
guardian, that 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.27 However, the court may waive this limitation 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.28
The court may not appoint a professional guardian who is not registered by the Office of Public and
Professional Guardians.29 The following are disqualified from being appointed as a guardian: 30
 A person convicted of a felony;
 A person who is incapable of discharging the duties of a guardian due to incapacity or illness, or
who is otherwise unsuitable to perform the duties of a guardian;
 A person who has been judicially determined to have committed abuse, abandonment, or
neglect against a child;
 A person 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, F.S.;
 A person who provides substantial services to the proposed ward in a professional or business
capacity, or a creditor of the proposed ward, if such guardian retains that previous professional
or business relationship (with exceptions); or
 A person who is in the employ of any person, agency, government, or corporation that provides
service to the proposed ward in a professional or business capacity