HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 1351 Pub. Rec./Guardianship Data Transparency
SPONSOR(S): Health & Human Services Committee, Children, Families & Seniors Subcommittee, Chaney
and others
TIED BILLS: CS/HB 1349 IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Children, Families & Seniors Subcommittee 11 Y, 0 N, As CS Morris Brazzell
2) State Affairs Committee 20 Y, 0 N Landry Williamson
3) 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 guardian may
be appointed by the court 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 to sell the
ward’s property.
Various task forces, and situations where guardians made adverse and unethical decisions regarding wards,
have highlighted the lack of data regarding Florida’s guardianship system. A recent task force found that basic
information, such as the number of wards in the state, is unavailable.
The bill creates a public record exemption for personal identifying information of a ward or petitioner held by
the Florida Association of Court Clerks and Comptrollers, Inc., and the clerks of court in the guardianship
database created under CS/HB 1349, to which this bill is linked. Such information may be released to another
governmental entity for use in the performance of its official duties and responsibilities.
The bill provides a public necessity statement as required by the Florida Constitution and
provides that the public record exemption will stand repealed on October 2, 2027, unless reviewed and saved
from repeal through reenactment by the Legislature.
The bill may have an insignificant fiscal impact on the Florida Clerks of Court Operations Corporation and the
clerks of court.
The effective date of the bill is contingent upon the passage of CS/CS/CS/HB 1349 or similar legislation.
Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly created or expanded public record or public meeting exemption.
The bill creates a public record exemption; thus, it requires a two-thirds vote for final passage.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h1351e.HHS
DATE: 2/28/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Public Records
Article I, s. 24(a) of the Florida Constitution sets forth the state’s public policy regarding access to
government records. The section guarantees every person a right to inspect or copy any public record
of the legislative, executive, and judicial branches of government. The Legislature, however, may
provide by general law for the exemption of records from the requirements of Art. I, s. 24(a) of the
Florida Constitution.1 The general law must state with specificity the public necessity justifying the
exemption and must be no broader than necessary to accomplish its purpose. 2
The Florida Statutes also address the public policy regarding access to government records. Section
119.07(1), F.S., guarantees every person a right to inspect and copy any state, county, or munic ipal
record, unless the record is exempt. Furthermore, the Open Government Sunset Review Act 3 provides
that a public record exemption may be created or maintained only if it serves an identifiable public
purpose and may be no broader than necessary to meet one of the following purposes:4
Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption;
Protect sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision; or
Protect trade or business secrets.
The Open Government Sunset Review Act requires the automatic repeal of a newly created or
substantially amended public record exemption on October 2nd of the fifth year after creation or
substantial amendment, unless the Legislature reenacts the exemption.5
Guardianship
Guardianship is a concept whereby a “guardian” acts for another, called a “ward,” whom the law
regards as incapable of managing his or her own affairs due to age or incapacity. 6 There are two main
forms of guardianship: guardianship over the person or guardianship over the property, which may be
limited or plenary.7 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.8
Generally, three types of guardians are appointed to wards in Florida: professional guardians, public
guardians, and family guardians. Professional guardians are appointed to provide services to three or
1 Art. I, s. 24(c), Fla. Const.
2 Id.
3 Section 119.15, F.S.
4
Section 119.15(6)(b), F.S.
5 Section 119.15(3), F.S.
6 Section 744.102(9), F.S.
7 Section 744.2005, F.S.
8 Section 744.102(12), F.S.
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more wards who are not family members of the guardian. Public guardians are considered to be
professional guardians, but are generally appointed to serve indigent wards. Family guardians are
appointed to serve their own family members and are not considered to be professional guardians,
regardless of how many family members they serve. A person serving as a public guardian is
considered a professional guardian for purposes of regulation, education, and registration.9
Regulation of Public and Professional Guardians
The Legislature created the Statewide Public Guardianship Office in 1999 to provide oversight over all
public guardians.10 In 2016, the Legislature renamed the Statewide Public Guardianship Office within
the Department of Elder Affairs (Department) as the Office of Public and Professional Guardians
(Office) and expanded the Office’s responsibilities.11 The expansion of the Office’s oversight of
professional guardians followed reports of abuse and inappropriate behavior by professional
guardians.12 The Office now regulates professional guardians with certain disciplinary and enforcement
powers.13 Specifically, s. 744.2004, F.S., requires the Office to review and, if determined legally
sufficient, investigate any complaint that a professional guardian has violated the standards of practice
established by the Office.
Confidentiality of Records Held by the Office
Current law requires any medical, financial, or mental health records held by an agency, or the court
and its agencies, or financial audits of guardianship records prepared by the clerk of the court to be
provided to the Office upon its request, if such records or financial audits are necessary to:
Investigate a guardian as a result of a complaint filed with the Office;
Evaluate the public guardianship system;
Assess the need for additional public guardianship; or
Develop required reports.14
Any confidential or exempt information provided to the Office must continue to be held confidential or
exempt as otherwise provided by law.15 All records held by the Office relating to the medical, financial,
or mental health of vulnerable adults,16 persons with a developmental disability,17 or persons with a
9 Section 744.102(17), F.S.
10 Chapter 99-277 L.O.F.
11 See CS/CS/CS/SB 232 (2016) and Chapter 2016-40, L.O.F.
12 See, e.g., Florida Supreme Court Commission on Fairness, Committee on Guardianship Monitoring, 2003, availab le at
http://flcourts.org/core/fileparse.php/260/urlt/guardianshipmonitoring.pdf (last visited Jan. 21, 2022) (reviewed how effectively guardians
were fulfilling their duties and obligations. The committee received input from citizens that there was abuse, neglect, and misuse of
wards’ funds. As a result, the committee stated that, though the majority of guardians are law -abiding and are diligently fulfilling their
complex responsibilities, a small percentage are not properly handling guardianship matters, and as a result, monitoring is n ecessary)
13 Section 744.2004, F.S.
14 Section 744.2111, F.S.
15 Id.
16 “Vulnerable adult” is defined as a person 18 years of age or older whose ability to perform the normal activities of daily living or to
provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long -term physical, or developmental
disability or dysfunction, or brain damage, or the infirmities of aging. Section 415.102(28), F.S.
17 “Developmental disability” is defined as a disorder or syndrome that is attributable to intellectual disability, cerebral pal sy, autism,
spina bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome; that manifests before the age of 18; and that
constitutes a substantial handicap that can reasonably be expected to continue indefinitely. Section 393.063(12), F.S.
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mental illness,18 are confidential and exempt19 from s. 119.07(1), F.S., and Article I, s. 24(a) of the
State Constitution.20
Office of Public and Professional Guardians
While the court appoints guardians to wards, the Department of Elder Affairs (DOEA) regulates
professional guardians to ensure they receive required training and comply with standards of practice.
In 1999, the Legislature created the “Public Guardianship Act” and established the Statewide Public
Guardianship Office within DOEA.21 In 2016, the Legislature renamed the Statewide Public
Guardianship Office within the DOEA as the Office of Public and Professional Guardians (OPPG) and
required OPPG to regulate professional guardians. The OPPG appoints local public guardian offices to
provide guardianship services to people who have neither adequate income nor assets to afford a
private guardian, nor any willing family or friend to serve.
There are 17 public guardian offices that serve all 67 counties. 22 In fiscal year 2018-2019, the public
guardian offices served 3,816 wards.23 Currently, there are more than 550 professional guardians
registered with the OPPG.24
The executive director of the OPPG is responsible for the oversight of all public and professional
guardians. In addition to other oversight responsibilities for professional guardians, the executive
director must review and approve professional guardian annual registration, which must include: 25
Sufficient information to identify the professional guardian which includes:
o For a professional guardian who is a natural person: the name, address, date of birth,
and employer identification or social security number 26 of the person; and
o For a professional guardian which is a partnership or association: the name, address,
and employer identification number of the entity.
Documentation proving bonding and education requirements have been met; and
Information distinguishing the type of guardianship services provided (public guardian,
individually, through partnership, corporation, or other business entity).
Similarly, the executive director of the OPPG is required to oversee the functions of public guardians.27
OPPG does not have a role in the appointment of a guardian to an individual ward, or in removing a
guardian from service to any ward; such decisions are made by the court.
Discipline of Professional Guardians
18 “Mental illness” is defined as an impairment of the mental or emotional processes that exercise conscious control of one’s actions or
of the ability to perceive or understand reality, which impairment substantially interferes with the person’s ability to meet the ordinary
demands of living. The term does not include a developm ental disability as defined in chapter 393, intoxication, or conditions
manifested only by antisocial behavior or substance abuse. Section 394.455(28), F.S.
19 There is a difference between records the Legislature designates as exempt from public record req uirements and those the
Legislature deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certai n
circumstances. See WFTV, Inc. v. The School Board of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004), review denied 892 So.2d
1015 (Fla. 2004); City of Riviera Beach v. Barfield, 642 So.2d 1135 (Fla. 4th DCA 1994); Williams v. City of Minneola, 575 So.2d 687
(Fla. 5th DCA 1991). If the Legislature designates a record as confidential and exempt from public disc losure, such record may not be
released by the custodian of public records to anyone other than the persons or entities specifically designated in statute. See Attorney
General Opinion 85-62 (August 1, 1985).
20 Section 744.2104(2), F.S.
21 Section 744.701, F.S. (1999).
22 Florida Department of Elder Affairs, 2020 Summary of Programs and Services, available at https://elderaffairs.org/wp -
content/uploads/2020_SOPS_C.pdf (last visited Jan. 21, 2022).
23 Id.
24 Office of Public and Professional Guardians, Department of Elder Affairs, https://elderaffairs.org/programs-services/office-of-public-
professional-guardians-oppg/ (last visited Jan. 21, 2022).
25 S. 744.2002(3), F.S.
26 Social Security numbers are confidential and exempt under s. 119.07, F.S.
27 S. 744.2001(4), F.S.
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OPPG receives and investigates complaints against professional guardians.28 When investigating
complaints, OPPG must:
Initiate an investigation no later than 10 business days after OPPG receives a complaint;
Complete and provide initial investigative findings and recommendations, if any, to the
professional guardian and person filing the complaint within 60 days;
Obtain supporting information, including interviewing the ward, family member, or interested
party, or documentation to determine the legal sufficiency29 of a complaint;
Dismiss any complaint that is not legally sufficient; and
Coordinate with the clerks of the court to avoid duplication of duties.
Disciplinary action may be taken against a professional guardian for: 30
Making a misleading, deceptive, or fraudulent representation in or related to the practice of
guardianship;
Violating any rule governing guardians or guardianship adopted by OPPG;
Being convicted or found guilty of, or entering a plea of guilty or nolo contendere to a crime
which relates to the practice of, or ability to practice as, a professional guardian;
Failing to comply with the educational course requirements for professional guardians;
Having a registration, license, or authority to practice a regulated profession revoked;
Knowingly filing a false report or complaint with OPPG against another guardian;
Attempting to obtain, obtaining, or renewing a registration or license to practice a profession by
bribery, fraud, or a known error;
Failing to report a violation of ch. 744, F.S. or the rules of OPPG to OPPG;
Failing to perform a legal or statutory obligation;
Making or filing a false report that is signed in the person’s capacity as professional guardian;
Using the position of guardian for financial gain;
Violating or failing to comply with an order from OPPG;
Improperly interfering with an investigation;
Using the guardianship relationship to engage or attempt to engage in sexual activity;
Failing to report to OPPG within 30 days being convicted or found guilty of, or enter a plea of
guilty or nolo contendere to a crime;
Being unable to perform the functions of guardian;
Failing to post and maintain a blanket fiduciary bond;
Failing to ma