HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 7037 PCB EEG 23-06 OGSR/Public Guardians and Employees with Fiduciary
Responsibility
SPONSOR(S): Ethics, Elections & Open Government Subcommittee, Porras
TIED BILLS: IDEN./SIM. BILLS: SB 7000
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Ethics, Elections & Open 14 Y, 0 N Poreda Toliver
Government Subcommittee
1) Children, Families & Seniors Subcommittee 15 Y, 0 N Osborne Brazzell
2) State Affairs Committee 20 Y, 0 N Poreda Williamson
SUMMARY ANALYSIS
The Open Government Sunset Review Act requires the Legislature to review each public record exemption
and each public meeting exemption five years after enactment. If the Legislature does not reenact the
exemption, it automatically repeals on October 2nd of the fifth year after enactment.
A guardian is someone who is appointed by a court to act on behalf of a ward (an individual who has been
adjudicated incapacitated) regarding his or her person or property or both. When a person becomes a ward,
that person loses those civil and legal rights which are then 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. In Florida, circuit court judges appoint guardians
and oversee guardianships. The relationship between a guardian and his or her ward is a fiduciary relationship,
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.
Current law provides a public record exemption for certain identifying and location information of current and
former public guardians, employees with fiduciary responsibility, and the spouses and children of such
guardians and employees. Additionally, the public record exemption includes the places of employment of
those spouses and children and the names and locations of schools and day care facilities attended by their
children.
The bill saves from repeal the public record exemption for certain identifying and location information including
home addresses, telephone numbers, and dates of birth of current and former public guardians, employees
with fiduciary responsibility, and their spouses and children. The bill also narrows the exemption by removing
places of employment and photographs of current public guardians and employees with fiduciary responsibility
from the exemption. Lastly, the bill provides definitions for certain terms and clarifies that the spouses and
children of public guardians or employees with fiduciary responsibility are not entitled to the public record
exemption if they themselves are a public guardian or employee with fiduciary responsibility. The exemption
will repeal on October 2, 2023, if this bill does not become law.
The bill does not appear to have a fiscal impact on state government or local governments.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h7037c.SAC
DATE: 3/31/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Open Government Sunset Review Act
The Open Government Sunset Review Act (OGSR Act) 1 sets forth a legislative review process
for newly created or substantially amended public record or public meeting exemptions. It
requires an automatic repeal of the exemption on October 2nd of the fifth year after creation or
substantial amendment, unless the Legislature reenacts the exemption.2
The OGSR Act provides that a public record or public meeting exemption may be created or
maintained only if it serves an identifiable public purpose. In addition, it may be no broader than is
necessary to meet one of the following purposes:3
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.
Protect trade or business secrets.
If, and only if, in reenacting an exemption that will repeal, the exemption is expanded, then a public
necessity statement and a two-thirds vote for passage are required.4 If the exemption is reenacted
with grammatical or stylistic changes that do not expand the exemption, if the exemption is narrowed,
or if an exception to the exemption is created, then a public necessity statement and a two-thirds
vote for passage are not required.
Guardianship
When an individual is unable to make legal decisions regarding his or her person or property, a
guardian may be appointed to act on his or her behalf. A guardian is someone who is appointed by the
court to act on behalf of a ward (an individual who has been adjudicated incapacitated) regarding his or
her person or property or both.5 A guardian can either be “limited” or “plenary.”6 A limited guardian is
appointed by the court to exercise powers specifically designated by the court after it is found that the
ward lacks the capacity to do some, but not all, tasks necessary or after the person has voluntarily
petitioned for the appointment of a limited guardian.7 A plenary 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. 8
Guardianship is considered the most restrictive form of protection and supervision of an individual as it
inherently entails the removal of certain civil and legal rights. 9 In recognition of the highly restrictive
nature of guardianship, the Legislature has specified its intent that the courts utilize the least restrictive
form of guardianship appropriate for the incapacitated persons, and that alternatives to guardianship
and less restrictive means of assistance be explored before appointing a guardian. 10
1 Section 119.15, F.S.
2 Section 119.15(3), F.S.
3 Section 119.15(6)(b), F.S.
4 Article I, s. 24(c), FLA. CONST .
5 Section 744.102(9), F.S.
6 Id.
7 Section 744.102(9)(a), F.S.
8 Section 744.102(9)(b), F.S.
9 Guardianship Improvement Task Force. Final Report: January 2022. Available at
https://www.guardianshipimprovementtaskforce.com/report/ (last visited March 28, 2023).
10 Section 744.1012(2), F.S.
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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 is
incapable of exercising.11 The alleged incapacitated person is then appointed an attorney and partakes
in an examination conducted by a committee of three medical experts appointed by the court. 12 Once a
person has been adjudicated incapacitated, the court appoints a guardian, 13 and the letters of
guardianship defining the terms of the guardianship are issued.14 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.15
The relationship between a guardian and his or her ward is a fiduciary one. 16 A fiduciary relationship
exists between two persons when one of them is under a duty to act or give advice for the benefit of
another upon matters within the scope of that relationship. 17 The guardian, as fiduciary, must:18
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.
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. 19 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. Should a guardian breach his or her fiduciary duty to the ward, the court is
obligated to intervene to protect the ward and the ward’s interests.20
Office of Public and Professional Guardians
The Legislature created the Statewide Public Guardianship Office in 1999 to provide oversight for all
public guardians.21 In 2016, the Legislature renamed the Statewide Public Guardianship Office within
the Department of Elder Affairs (DOEA) as the Office of Public and Professional Guardians (OPPG)
and expanded its responsibilities.22
A public guardian may serve “an incapacitated person if there is no family member or friend, other
person, bank, or corporation willing and qualified to serve as guardian.” 23 A public guardian may be an
appointee of the OPPG or a contract employee of a nonprofit corporation. 24 There are 16 public
guardianship programs, overseeing approximately 550 professional guardians statewide with offices
located in all 20 judicial circuits in the state.25
11 Section 744.3201, F.S.
12 Section 744.331, F.S. One member of the committee must be a psychiatrist or other physician. The remaining committee members
must be either a psychologist, gerontologist, psychiatrist, physician, advanced practice registered nurse, registered nurse, licensed
social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or any oth er person
who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert
opinion.
13 Section 744.2005, F.S
14 Section 744.345, F.S.
15 Section 744.2005(3), F.S.
16 Lawrence v. Norris, 563 So. 2d 195, 197 (Fla. 1st DCA 1990); Section 744.361(1), F.S.
17 Doe v. Evans, 814 So. 2d 370, 374 (Fla. 2002).
18 Section 744.361, F.S.
19 Section 744.446, F.S.
20 Section 744.446(5), F.S.
21 Chapter 99-277, L.O.F.
22 Section 744.2001, F.S., and Chapter 2016-40 L.O.F.
23 Section 744.2007(1), F.S.
24 Section 744.2006, F.S.
25 Department of Elder Affairs, Florida Public Guardian Programs, https://elderaffairs.o rg/prog rams -serv ices/office -of-pub lic-
professional-guardians-oppg/ (last visited March 28, 2023).
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Public Record Exemption under Review
In 2018, the Legislature made the following information of current or former public guardians and
employees with fiduciary responsibility26 exempt27 from public record requirements:28
Home addresses;
Telephone numbers;
Dates of birth;
Places of employment; and
Photographs.
The exemption also protects the same information for spouses and children of such guardians and
employees, as well as the names of their spouses and children. Additionally, the names and locations
of schools and day care facilities attended by their children are exempt from public record
requirements.29
The 2018 public necessity statement30 for the exemption provides that:
The release of such identifying and location information might place current or
former public guardians and employees with fiduciary responsibility and their family
members in danger of physical and emotional harm from disgruntled individuals
who react inappropriately to actions taken by the public guardians and employees
with fiduciary responsibility. Public guardians and employees with fiduciary
responsibility provide a valuable service to the community by helping some of the
state's most vulnerable residents who lack the physical or mental capacity to take
care of most aspects of their own personal affairs. Public guardians and employees
with fiduciary responsibility help those who lack a willing and qualified family
member or friend and who do not have the income or assets to pay a professional
guardian.
Despite the value of this service, however, some persons, including a public
guardian's own wards, become disgruntled with the assistance provided or the
decisions a public guardian or an employee with fiduciary responsibility makes,
which can result in a guardian or an employee with fiduciary responsibility or the
family members of the guardian or the employee with fiduciary responsibility
becoming potential targets for an act of revenge.31
Pursuant to the OGSR Act, the exemption will repeal on October 2, 2023, unless reenacted
by the Legislature.
During the 2022 interim, House and Senate staff met with DOEA staff regarding the public record
exemption under review. DOEA staff stated that the exemption has only been utilized by one OPPG
since its inception. DOEA staff was unaware of any litigation concerning the exemption and
expressed the need to maintain the exemption. DOEA also expressed support for narrowing the
26 “Employee with fiduciary responsibility” means an employee of a public guardian who has the ability to direct any transactions of a
ward’s funds, assets, or property; who under the supervision of the guardian, manages the care of the ward; or who makes any health
care decision, as defined in s. 765.101, F.S., on behalf of the ward. Section 744.21031, F.S.
27 There is a difference between records the Legislature designates as exempt from public record requirements and those the
Legislature deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain
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 disclosure, 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).
28 Section 744.21031, F.S.
29 Id.
30 Article I, s. 24(c), Fla. Const., requires each public record exemption state with specificity the public necessity justifyin g the
exemption.
31 Chapter 2018-16, Laws of Fla.
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exemption.
Effect of the Bill
The bill maintains the public record exemption for the home addresses, telephone numbers, and
dates of birth of current or former public guardians and employees with fiduciary responsibility.
The bill also maintains the public record exemption for the names, home addresses, telephone
numbers, and dates of birth of the spouses and children of such guardians and employees, as
well as the names and locations of schools and daycare facilities attended by such children.
The bill makes the following changes to the public record exemption:
Adds definitions for the term “agency”32 and “telephone numbers”33 to clarify the scope of
the public record exemption.
Removes from the exemption places of employment of current or former public guardians,
employees with fiduciary responsibility, and the spouses and children of such guardians
and employees.
Removes from the exemption photographs of current public guardians and employees with
fiduciary responsibility but maintains the exemption for photographs of former public
guardians and employees with fiduciary responsibility.
Clarifies that the spouses and children of such guardians and employees are not entitled
to the public record exemption if they themselves are a public guardian or employee with
fiduciary responsibility.
The bill removes the scheduled repeal date of the public record exemption, thereby maintaining
the public record exemption.
B. SECTION DIRECTORY:
Section 1 amends s. 744.21031, F.S., relating to public records exemption for public guardians.
Section 2 provides an effective date of October 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.