Bill Summary – FastDemocracy

       Florida Senate - 2024                                      SB 48
       
       
        
       By Senator Garcia
       
       
       
       
       
       36-00216-24                                             202448__
                      A bill to be entitled                      
       An act relating to guardianship; providing a short
       title; amending s. 744.102, F.S.; defining the term
       “family”; amending s. 744.2006, F.S.; requiring that
       public guardians be appointed on a rotating basis;
       amending s. 744.3021, F.S.; requiring the court to
       establish visitation rights of a minor’s family;
       creating a rebuttable presumption; requiring certain
       evidence for the denial of visitation or other
       contact; authorizing the court to establish reasonable
       limitations on such visitation; requiring that any
       limitations on visitation or other contact be
       specified in the order of appointment; amending s.
       744.3203, F.S.; authorizing the suspension of a power
       of attorney under certain circumstances; requiring a
       jury to determine if a power of attorney should be
       suspended; amending s. 744.3215, F.S.; requiring a
       full reevaluation of the need for guardianship after a
       certain time; prohibiting certain judges from
       overseeing the reevaluation proceedings; amending s.
       744.331, F.S.; requiring the court to impanel a jury
       for a certain purpose; requiring the court to
       establish visitation rights of an alleged
       incapacitated person’s family; creating a rebuttable
       presumption; requiring certain evidence to deny
       visitation or other contact; authorizing the court to
       establish reasonable limitations on such visitation;
       requiring that any limitations on visitation or other
       contact be specified in the order determining
       incapacity; requiring a jury to make certain decisions
       under certain circumstances; authorizing the court to
       grant authority to certain persons even if a guardian
       is appointed; amending s. 744.334, F.S.; revising
       requirements for a petition for the appointment of a
       guardian; amending s. 744.361, F.S.; conforming
       provisions to changes made by the act; amending ss.
       744.365 and 744.3678, F.S.; requiring that the
       verified inventory and annual accounting be made
       available to certain persons; amending s. 744.372,
       F.S.; conforming provisions to changes made by the
       act; amending ss. 744.462 and 744.474, F.S.;
       conforming provisions to changes made by the act;
       amending ss. 44.407 and 744.2003, F.S.; conforming
       cross-references; providing an effective date.
        
Be It Enacted by the Legislature of the State of Florida:

       Section 1. This act may be cited as “Karilyn’s Law.”
       Section 2. Present subsections (8) through (22) of section
744.102, Florida Statutes, are redesignated as subsections (9)
through (23), respectively, and a new subsection (8) is added to
that section, to read:
       744.102 Definitions.—As used in this chapter, the term:
       (8) “Family” means a parent, sibling, child, spouse, or any
other relative by blood, marriage, or adoption of the minor,
ward, or alleged incapacitated person.
       Section 3. Subsection (2) of section 744.2006, Florida
Statutes, is amended to read:
       744.2006 Office of Public and Professional Guardians;
appointment, notification.—
       (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). Public
guardians for alleged incapacitated persons or minors must be
appointed on a rotating basis by the executive director. 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.
       Section 4. Subsection (2) of section 744.3021, Florida
Statutes, is amended to read:
       744.3021 Guardians of minors.—
       (2) A minor is not required to attend the hearing on the
petition for appointment of a guardian, unless otherwise
directed by the court. During the hearing on the petition for
appointment of a guardian, the court shall establish the
visitation rights of the minor’s family. There is a rebuttable
presumption in favor of allowing visitation or other contact
with the minor’s family. Visitation or other contact may only be
denied upon a showing of clear and convincing evidence that
visitation or other contact is not in the best interests of the
minor. The court may establish reasonable limitations on the
visitation rights of the minor’s family. The court shall include
any such limitations in the order of appointment.
       Section 5. Subsections (1) and (3) of section 744.3203,
Florida Statutes, are amended to read:
       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 only if 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.
       (3) Upon the filing of a response to the motion by the
agent under the power of attorney, the court shall impanel a
jury to determine whether the petitioner met his or her burden
to suspend a power of attorney and 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. Based on the jury’s determination, 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.
       Section 6. Paragraph (b) of subsection (1) of section
744.3215, Florida Statutes, is amended to read:
       744.3215 Rights of persons determined incapacitated.—
       (1) A person who has been determined to be incapacitated
retains the right:
       (b) To have continuing review of the need for restriction
of his or her rights and to have a full reevaluation every 3
years of the need for guardianship, including an examination by
an examining committee and an adjudicatory hearing as required
under s. 744.331. The adjudicatory hearing may not be conducted
by the same judge who conducted the initial adjudicatory
hearing.
       Section 7. Paragraph (a) of subsection (5) and paragraphs
(a) and (f) of subsection (6) of section 744.331, Florida
Statutes, are amended, and paragraph (d) is added to subsection
(5) of that section, to read:
       744.331 Procedures to determine incapacity.—
       (5) ADJUDICATORY HEARING.—
       (a) Upon appointment of the examining committee, the court
shall set the date upon which the petition will be heard and, if
necessary, impanel a jury to determine the validity of the
alleged incapacitated person’s trust, trust amendment, power of
attorney, or will. 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.
       (d) In the adjudicatory hearing on a petition alleging
incapacity, the court shall establish the visitation rights of
the family of the person alleged to be incapacitated. There is a
rebuttable presumption in favor of allowing visitation or other
contact with the family of the person alleged to be
incapacitated. Visitation or other contact may only be denied
upon a showing of clear and convincing evidence that visitation
or other contact is not in the best interests of the person
alleged to be incapacitated. The court may establish reasonable
limitations on the visitation rights of the family of the person
alleged to be incapacitated. The court must include any such
limitations in the order determining incapacity.
       (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 all of 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.
       5. The limitations on the visitation rights of the person’s
family, if any.
       (f) If Upon the filing of a verified statement by an
interested person files a verified statement 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, or will is invalid; and provides
       2. a reasonable factual basis for that belief, the court
must impanel a jury to consider the facts provided and determine
whether the trust, trust amendment, or durable power of
attorney, or will is a reasonable shall not be deemed to be an
alternative to the appointment of a guardian. However, the
appointment of a guardian does not limit the court’s power to
determine that certain authority granted by a trust, trust
amendment, durable power of attorney, or will is to remain
exercisable by the agent.
       Section 8. Subsection (1) of section 744.334, Florida
Statutes, is amended to read:
       744.334 Petition for appointment of guardian or
professional guardian; contents.—
       (1) Every petition for the appointment of a guardian must
shall be verified by the petitioner and shall contain all of the
following information statements, to the best of petitioner’s
knowledge and belief:, showing
       (a) The name, age, residence, and post office address of
the alleged incapacitated person or minor.;
       (b) The nature of the her or his incapacity of the alleged
incapacitated person, if any.;
       (c) The extent of guardianship desired, either plenary or
limited.;
       (d) The residence and post office address of the
petitioner.;
       (e) The names and addresses of the next of kin of the
alleged incapacitated person or minor, if known to the
petitioner.;
       (f) The name of the proposed guardian and the reasons why
she or he should be appointed guardian.;
       (g) Whether the proposed guardian is a professional
guardian.;
       (h) The relationship and previous relationship of the
proposed guardian to the alleged incapacitated person or minor.;
       (i) Whether the alleged incapacitated person or minor has a
valid trust, trust amendment, durable power of attorney, or
will.
       (j) 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.;
       (k) The reasons why a guardian advocate under s. 744.3085
or other alternatives to guardianship, including a valid will
executed as required in s. 732.502, are insufficient to meet the
needs of the alleged incapacitated person or minor.; and
       (l) 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.
       Section 9. Paragraph (b) of subsection (13) and paragraph
(d) of subsection (14) of section 744.361, Florida Statutes, are
amended to read:
       744.361 Powers and duties of guardian.—
       (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:
       (b) Allow the ward to maintain visitation or other contact
with his or her family and friends unless a court has:
       1. Determined that such visitation or other contact is not
in the best interests of the guardian believes that such contact
may cause harm to the ward; or
       2. Placed reasonable limitations on such visitation or
other contact in the order determining incapacity or, in the
case of a minor, the order of appointment.
       (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:
       (d) The nature and extent of visitation or other contact
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.
       Section 10. Subsection (1) of section 744.365, Florida
Statutes, is amended to read:
       744.365 Verified inventory.—
       (1) FILING.—A guardian of the property shall file a
verified inventory of the ward’s property. The verified
inventory must be made available to the ward’s family, the
ward’s next of kin, and the beneficiaries and heirs of the
ward’s valid will.
       Section 11. Subsection (1) of section 744.3678, Florida
Statutes, is amended to read:
       744.3678 Annual accounting.—
       (1) Each guardian of the property must file an annual
accounting with the court. The annual accounting must be made
available to the ward’s family, ward’s next of kin, and the
beneficiaries and heirs of the ward’s valid will.
       Section 12. Section 744.372, Florida Statutes, is amended
to read:
       744.372 Judicial review of guardianships.—The court retains
jurisdiction over all guardianships.
       (1) The court shall review the appropriateness and extent
of a guardianship annually and:
       (a)(1) Whether If an objection to the terms of the
guardianship report has been filed pursuant to s. 744.367;
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