F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 887 2024
1 A bill to be entitled
2 An act relating to guardianship; providing a short
3 title; amending s. 744.102, F.S.; defining the term
4 "family"; amending s. 744.2006, F.S.; requiring public
5 guardians to be appointed on a rotating basis;
6 amending s. 744.3021, F.S.; requiring the court to
7 establish visitation rights of a minor's family;
8 creating a rebuttable presumption; requiring clear and
9 convincing evidence to deny visitation or other
10 contact; authorizing the court to establish reasonable
11 limitations on such visitation; requiring that any
12 limitations on visitation or other contact be
13 specified in the order of appointment; amending s.
14 744.3203, F.S.; authorizing the suspension of a power
15 of attorney only under certain circumstances;
16 requiring a jury to determine if a power of attorney
17 should be suspended; amending ss. 744.3215 and
18 744.372, F.S.; requiring a full reevaluation of the
19 need for guardianship after a certain time;
20 prohibiting certain judges from overseeing the
21 reevaluation proceedings; amending s. 744.331, F.S.;
22 requiring the court to impanel a jury for a certain
23 purpose; requiring the court to establish visitation
24 rights of an alleged incapacitated person's family;
25 creating a rebuttable presumption; requiring clear and
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26 convincing evidence to deny visitation or other
27 contact; authorizing the court to establish reasonable
28 limitations on such visitation; requiring that any
29 limitations on visitation or other contact be
30 specified in the order determining incapacity;
31 requiring a jury to make certain decisions under
32 certain circumstances; authorizing the court to grant
33 authority to certain persons even if a guardian is
34 appointed; amending s. 744.334, F.S.; revising
35 requirements for a petition for the appointment of a
36 guardian; amending ss. 744.365 and 744.3678, F.S.;
37 requiring the verified inventory and annual accounting
38 be made available to certain persons; amending ss.
39 744.361, 744.462, and 744.474, F.S.; conforming
40 provisions to changes made by the act; amending ss.
41 44.407 and 744.2003, F.S.; conforming cross-
42 references; providing an effective date.
43
44 Be It Enacted by the Legislature of the State of Florida:
45
46 Section 1. This act may be cited as "Karilyn's Law."
47 Section 2. Subsections (8) through (22) of section
48 744.102, Florida Statutes, are renumbered as subsections (9)
49 through (23), respectively, and a new subsection (8) is added to
50 that section, to read:
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51 744.102 Definitions.—As used in this chapter, the term:
52 (8) "Family" means a parent, sibling, child, spouse, or
53 any other relative by blood, marriage, or adoption of the minor,
54 ward, or alleged incapacitated person.
55 Section 3. Subsection (2) of section 744.2006, Florida
56 Statutes, is amended to read:
57 744.2006 Office of Public and Professional Guardians;
58 appointment, notification.—
59 (2) The executive director shall appoint or contract with
60 a public guardian from the list of candidates described in
61 subsection (1). A public guardian must meet the qualifications
62 for a guardian as prescribed in s. 744.309(1)(a). Public
63 guardians for alleged incapacitated persons or minors must be
64 appointed on a rotating basis by the executive director. Upon
65 appointment of the public guardian, the executive director shall
66 notify the chief judge of the judicial circuit and the Chief
67 Justice of the Supreme Court of Florida, in writing, of the
68 appointment.
69 Section 4. Subsection (2) of section 744.3021, Florida
70 Statutes, is amended to read:
71 744.3021 Guardians of minors.—
72 (2) A minor is not required to attend the hearing on the
73 petition for appointment of a guardian, unless otherwise
74 directed by the court. During the hearing on the petition for
75 appointment of a guardian, the court shall establish the
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76 visitation rights of the minor's family. There is a rebuttable
77 presumption in favor of allowing visitation or other contact
78 with the minor's family. Visitation or other contact may only be
79 denied upon a showing of clear and convincing evidence that
80 visitation or other contact is not in the best interests of the
81 minor. The court may establish reasonable limitations on the
82 visitation rights of the minor's family. The court must include
83 any such limitations in the order of appointment.
84 Section 5. Subsections (1) and (3) of section 744.3203,
85 Florida Statutes, are amended to read:
86 744.3203 Suspension of power of attorney before incapacity
87 determination.—
88 (1) At any time during proceedings to determine incapacity
89 but before the entry of an order determining incapacity, the
90 authority granted under an alleged incapacitated person's power
91 of attorney to a parent, spouse, child, or grandchild is
92 suspended only if when the petitioner files a motion stating
93 that a specific power of attorney should be suspended for any of
94 the following grounds:
95 (a) The agent's decisions are not in accord with the
96 alleged incapacitated person's known desires.
97 (b) The power of attorney is invalid.
98 (c) The agent has failed to discharge his or her duties or
99 incapacity or illness renders the agent incapable of discharging
100 duties.
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101 (d) The agent has abused powers.
102 (e) There is a danger that the property of the alleged
103 incapacitated person may be wasted, misappropriated, or lost
104 unless the authority under the power of attorney is suspended.
105
106 Grounds for suspending a power of attorney do not include the
107 existence of a dispute between the agent and the petitioner
108 which is more appropriate for resolution in some other forum or
109 a legal proceeding other than a guardianship proceeding.
110 (3) Upon the filing of a response to the motion by the
111 agent under the power of attorney, the court shall impanel a
112 jury to determine if the petitioner met his or her burden to
113 suspend a power of attorney and schedule the motion for an
114 expedited hearing. Unless an emergency arises and the agent's
115 response sets forth the nature of the emergency, the property or
116 matter involved, and the power to be exercised by the agent,
117 notice must be given to all interested persons, the alleged
118 incapacitated person, and the alleged incapacitated person's
119 attorney. Based on the jury's determination, the court order
120 following the hearing must set forth what powers the agent is
121 permitted to exercise, if any, pending the outcome of the
122 petition to determine incapacity.
123 Section 6. Paragraph (b) of subsection (1) of section
124 744.3215, Florida Statutes, is amended to read:
125 744.3215 Rights of persons determined incapacitated.—
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126 (1) A person who has been determined to be incapacitated
127 retains the right:
128 (b) To have continuing review of the need for restriction
129 of his or her rights and every 3 years a full reevaluation of
130 the need for guardianship, including an examination by an
131 examining committee and an adjudicatory hearing as required
132 under s. 744.331. The adjudicatory hearing may not be conducted
133 by the same judge who conducted the initial adjudicatory
134 hearing.
135 Section 7. Paragraph (a) of subsection (5) and paragraphs
136 (a) and (f) of subsection (6) of section 744.331, Florida
137 Statutes, are amended and paragraph (d) is added to subsection
138 (5) of that section, to read:
139 744.331 Procedures to determine incapacity.—
140 (5) ADJUDICATORY HEARING.—
141 (a) Upon appointment of the examining committee, the court
142 shall set the date upon which the petition will be heard and, if
143 necessary, impanel a jury to determine the validity of the
144 alleged incapacitated person's trust, trust amendment, power of
145 attorney, or will. The adjudicatory hearing must be conducted at
146 least 10 days, which time period may be waived, but no more than
147 30 days, after the filing of the last filed report of the
148 examining committee members, unless good cause is shown. The
149 adjudicatory hearing must be conducted at the time and place
150 specified in the notice of hearing and in a manner consistent
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151 with due process.
152 (d) In the adjudicatory hearing on a petition alleging
153 incapacity, the court shall establish the visitation rights of
154 the family of the person alleged to be incapacitated. There is a
155 rebuttable presumption in favor of allowing visitation or other
156 contact with the family of the person alleged to be
157 incapacitated. Visitation or other contact may only be denied
158 upon a showing of clear and convincing evidence that visitation
159 or other contact is not in the best interests of the person
160 alleged to be incapacitated. The court may establish reasonable
161 limitations on the visitation rights of the family of the person
162 alleged to be incapacitated. The court must include any such
163 limitations in the order determining incapacity.
164 (6) ORDER DETERMINING INCAPACITY.—If, after making
165 findings of fact on the basis of clear and convincing evidence,
166 the court finds that a person is incapacitated with respect to
167 the exercise of a particular right, or all rights, the court
168 shall enter a written order determining such incapacity. In
169 determining incapacity, the court shall consider the person's
170 unique needs and abilities and may only remove those rights that
171 the court finds the person does not have the capacity to
172 exercise. A person is determined to be incapacitated only with
173 respect to those rights specified in the order.
174 (a) The court shall make all of the following findings:
175 1. The exact nature and scope of the person's
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176 incapacities.;
177 2. The exact areas in which the person lacks capacity to
178 make informed decisions about care and treatment services or to
179 meet the essential requirements for her or his physical or
180 mental health or safety.;
181 3. The specific legal disabilities to which the person is
182 subject.; and
183 4. The specific rights that the person is incapable of
184 exercising.
185 5. The limitations on the visitation rights of the
186 person's family, if any.
187 (f) If Upon the filing of a verified statement by an
188 interested person files a verified statement stating:
189 1. that he or she has a good faith belief that the alleged
190 incapacitated person's trust, trust amendment, or durable power
191 of attorney, or will is invalid; and provides
192 2. a reasonable factual basis for that belief, the court
193 must impanel a jury to consider the facts provided and determine
194 if the trust, trust amendment, or durable power of attorney, or
195 will is a reasonable shall not be deemed to be an alternative to
196 the appointment of a guardian. However, the appointment of a
197 guardian does not limit the court's power to determine that
198 certain authority granted by a trust, trust amendment, durable
199 power of attorney, or will is to remain exercisable by the
200 agent.
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201 Section 8. Subsection (1) of section 744.334, Florida
202 Statutes, is amended to read:
203 744.334 Petition for appointment of guardian or
204 professional guardian; contents.—
205 (1) Every petition for the appointment of a guardian must
206 shall be verified by the petitioner and shall contain all of the
207 following information statements, to the best of the
208 petitioner's knowledge and belief:, showing
209 (a) The name, age, residence, and post office address of
210 the alleged incapacitated person or minor.;
211 (b) The nature of the her or his incapacity of the alleged
212 incapacitated person, if any.;
213 (c) The extent of guardianship desired, either plenary or
214 limited.;
215 (d) The residence and post office address of the
216 petitioner.;
217