Florida Guardianship Code: Florida Statutes, Chapter 744
CHAPTER 744
GUARDIANSHIP
PART I
GENERAL PROVISIONS
(ss. 744.101-744.1098)
PART II
PUBLIC AND PROFESSIONAL GUARDIANS
(ss. 744.2001-744.2111)
PART III
TYPES OF GUARDIANSHIP
(ss. 744.301-744.3085)
PART IV
GUARDIANS
(ss. 744.309-744.3145)
PART V
ADJUDICATION OF INCAPACITY AND APPOINTMENT OF GUARDIANS
(ss. 744.3201-744.359)
PART VI
POWERS AND DUTIES
(ss. 744.361-744.462)
PART VII
TERMINATION
(ss. 744.464-744.534)
PART VIII
VETERANS’ GUARDIANSHIP
(ss. 744.602-744.653)
PART I
GENERAL PROVISIONS
744.101 Short title.
744.1012 Legislative intent.
744.102 Definitions.
744.1025 Additional definitions.
744.104 Verification of documents.
744.105 Costs.
744.106 Notice.
744.107 Court monitors.
744.1075 Emergency court monitor.
744.1076 Court orders appointing court monitors and emergency court monitors; reports of court monitors; orders finding no probable cause; public records exemptions.
744.108 Guardian and attorney fees and expenses.
744.109 Records.
744.1095 Hearings.
744.1096 Domicile of ward.
744.1097 Venue.
744.1098 Change of ward’s residence.
744.101 Short title.—This chapter may be cited as the “Florida Guardianship Law.”
History.—s. 1, ch. 74-106; s. 1, ch. 89-96.
Note.—Created from former s. 744.01.
744.1012 Legislative intent.—The Legislature finds that:
(1) Adjudicating a person totally incapacitated and in need of a guardian deprives such person of all her or his civil and legal rights and that such deprivation may be unnecessary.
(2) It is desirable to make available the least restrictive form of guardianship to assist persons who are only partially incapable of caring for their needs and that alternatives to guardianship and less restrictive means of assistance, including, but not limited to, guardian advocates, be explored before a plenary guardian is appointed.
(3) By recognizing that every individual has unique needs and differing abilities, it is the purpose of this act to promote the public welfare by establishing a system that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of assistance that least interferes with the legal capacity of a person to act in her or his own behalf. This act shall be liberally construed to accomplish this purpose.
(4) Private guardianship may be inadequate when there is no willing and responsible family member or friend, other person, bank, or corporation av
ailable to serve as guardian for an incapacitated person, and such person does not have adequate income or wealth for the compensation of a private guardian.
(5) Through the establishment of the Office of Public and Professional Guardians, the Legislature intends to permit the establishment of offices of public guardians for the purpose of providing guardianship services for incapacitated persons when no private guardian is available.
(6) A public guardian will be provided only to those persons whose needs cannot be met through less restrictive means of intervention. A public guardian may also serve in the capacity of a limited guardian or guardian advocate under s. 393.12 when the public guardian is the guardian of last resort as described in subsection (4).
History.—s. 3, ch. 89-96; s. 1, ch. 90-271; s. 1067, ch. 97-102; s. 4, ch. 2016-40.
744.102 Definitions.—As used in this chapter, the term:
(1) “Attorney for the alleged incapacitated person” means an attorney who represents the alleged incapacitated person. The attorney shall represent the expressed wishes of the alleged incapacitated person to the extent it is consistent with the rules regulating The Florida Bar.
(2) “Audit” means a systematic review of financial and all other documents to ensure compliance with s. 744.368, rules of court, and local procedures using generally accepted accounting principles. The term includes various practices that meet professional standards, such as verifications, reviews of substantiating papers and accounts, interviews, inspections, and investigations.
(3) “Clerk” means the clerk or deputy clerk of the court.
(4) “Corporate guardian” means a corporation authorized to exercise fiduciary or guardianship powers in this state and includes a nonprofit corporate guardian.
(5) “Court” means the circuit court.
(6) “Court monitor” means a person appointed by the court under s. 744.107 to provide the court with information concerning a ward.
(7) “Estate” means the property of a ward subject to administration.
(8) “Foreign guardian” means a guardian appointed in another state or country.
(9) “Guardian” means a person who has been appointed by the court to act on behalf of a ward’s person or property, or both.
(a) “Limited guardian” means a guardian who has been appointed by the court to exercise the legal rights and powers specifically designated by court order entered 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.
(b) “Plenary guardian” means a person who has been 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.
(10) “Guardian ad litem” means a person who is appointed by the court having jurisdiction of the guardianship or a court in which a particular legal matter is pending to represent a ward in that proceeding.
(11) “Guardian advocate” means a person appointed by a written order of the court to represent a person with developmental disabilities under s. 393.12. As used in this chapter, the term does not apply to a guardian advocate appointed for a person determined incompetent to consent to treatment under s. 394.4598.
(12) “Incapacitated person” means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.
(a) To “manage property” means to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.
(b) To “meet essential requirements for health or safety” means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.
(13) “Minor” means a person under 18 years of age whose disabilities have not been removed by marriage or otherwise.
(14) “Next of kin” means those persons who would be heirs at law of the ward or alleged incapacitated person if the person were deceased and includes the lineal descendants of the ward or alleged incapacitated person.
(15) “Nonprofit corporate guardian” means a nonprofit corporation organized for religious or charitable purposes and existing under the laws of this state.
(16) “Preneed guardian” means a person named in a written declaration to serve as guardian in the event of the incapacity of the declarant as provided in s. 744.3045.
(17) “Professional guardian” means any guardian who has at any time rendered services to three or more wards as their guardian. A person serving as a guardian for two or more relatives as defined in s. 744.309(2) is not considered a professional guardian. A public guardian shall be considered a professional guardian for purposes of regulation, education, and registration.
(18) “Property” means both real and personal property or any interest in it and anything that may be the subject of ownership.
(19) “Standby guardian” means a person empowered to assume the duties of guardianship upon the death or adjudication of incapacity of the last surviving natural or appointed guardian.
(20) “Surrogate guardian” means a guardian designated according to s. 744.442.
(21) “Totally incapacitated” means incapable of exercising any of the rights enumerated in s. 744.3215(2) and (3).
(22) “Ward” means a person for whom a guardian has been appointed.
History.—s. 1, ch. 74-106; s. 2, ch. 75-222; s. 231, ch. 77-104; s. 1, ch. 79-221; s. 3, ch. 80-171; s. 4, ch. 89-96; s. 2, ch. 90-271; s. 1, ch. 96-354; s. 1780, ch. 97-102; s. 6, ch. 2003-57; s. 9, ch. 2004-260; s. 1, ch. 2006-178; s. 1, ch. 2014-124.
Note.—Created from former s. 744.03.
744.1025 Additional definitions.—The definitions contained in the Florida Probate Code shall be applicable to the Florida Guardianship Law, unless the context requires otherwise, insofar as such definitions do not conflict with definitions contained in this law.
History.—s. 2, ch. 79-221; s. 5, ch. 89-96.
744.104 Verification of documents.—When verification of a document is required in this chapter or by rule, the document filed shall include an oath or affirmation or the following statement: “Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true to the best of my knowledge and belief.” Any person who shall willfully include a false statement in the document shall be guilty of perjury and upon conviction shall be punished accordingly.
History.—s. 1, ch. 74-106; s. 2, ch. 75-222; s. 7, ch. 89-96.
Note.—Created from former s. 744.37.
744.105 Costs.—In all guardianship proceedings, costs may be awarded. When the costs are to be paid out of the property of the ward, the court may direct from what part of the property the costs shall be paid.
History.—s. 1, ch. 74-106; s. 8, ch. 89-96; s. 3, ch. 90-271.
Note.—Created from former s. 744.47.
744.106 Notice.—The requirements for notice under this chapter are those provided for in the Florida Probate Rules except as provided in s. 744.331(1).
History.—s. 4, ch. 75-222; s. 9, ch. 89-96; s. 65, ch. 95-211.
744.107 Court monitors.—
(1) The court may, upon inquiry from any interested person or upon its own motion in any proceeding over which it has jurisdiction, appoint a monitor. The court shall not appoint as a monitor a family member or any person with a personal interest in the proceedings. The order of appointment shall be served upon the guardian, the ward, and such other persons as the court may determine.
(2) The monitor may investigate, seek information, examine documents, or interview the ward and shall report to the court his or her findings. The report shall be verified and shall be served on the guardian, the ward, and such other persons as the court may determine.
(3) If it appears from the monitor’s report that further action by the court to protect the interests of the ward is necessary, the court shall, after a hearing with notice, enter any order necessary to protect the ward or the ward’s estate, including amending the plan, requiring an accounting, ordering production of assets, freezing assets, suspending a guardian, or initiating proceedings to remove a guardian.
(4) Unless otherwise prohibited by law, a monitor may be allowed a reasonable fee as determined by the court and paid from the property of the ward. No full-time state, county, or municipal employee or officer shall be paid a fee for such investigation and report. If the court finds the motion for court monitor to have been filed in bad faith, the costs of the proceeding, including attorney’s fees, may be assessed against the movant.
(5) The court may appoint the office of criminal conflict and civil regional counsel as monitor if the ward is indigent.
History.—ss. 18, 26, ch. 75-222; s. 10, ch. 89-96; s. 4, ch. 90-271; s. 1068, ch. 97-102; s. 2, ch. 2006-77; s. 2, ch. 2015-83.
744.1075 Emergency court monitor.—
(1)(a) A court, upon inquiry from any interested person or upon its own motion, in any proceeding over which the court has jurisdiction, may appoint a court monitor on an emergency basis without notice. The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the ward will be seriously impaired or that the ward’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. The scope of the matters to be investigated and the powers and duties of the monitor must be specifically enumerated by court order.
(b) The authority of a monitor appointed under this section expires 60 days after the date of appointment or upon a finding of no probable cause, whichever occurs first. The authority of the monitor may be extended for an additional 30 days upon a showing that the emergency conditions still exist.
(2) Within 15 days after the entry of the order of appointment, the monitor shall file his or her report of findings and recommendations to the court. The report shall be verified and may be supported by documents or other evidence.
(3) Upon review of the report, the court shall determine whether there is probable cause to take further action to protect the person or property of the ward. If the court finds no probable cause, the court shall issue an order finding no probable cause and discharging the monitor.
(4)(a) If the court finds probable cause, the court shall issue an order to show cause directed to the guardian or other respondent stating the essential facts constituting the conduct charged and requiring the respondent to appear before the court to show cause why the court should not take further action. The order shall specify the time and place of the hearing with a reasonable time to allow for the preparation of a defense after service of the order.
(b) At any time prior to the hearing on the order to show cause, the court may issue a temporary injunction, a restraining order, or an order freezing assets; may suspend the guardian or appoint a guardian ad litem; or may issue any other appropriate order to protect the physical or mental health or safety or property of the ward. A copy of all such orders or injunctions shall be transmitted by the court or under its direction to all parties at the time of entry of the order or injunction.
(c) Following a hearing on the order to show cause, the court may impose sanctions on the guardian or his or her attorney or other respondent or take any other action authorized by law, including entering a judgment of contempt; ordering an accounting; freezing assets; referring the case to local law enforcement agencies or the state attorney; filing an abuse, neglect, or exploitation complaint with the Department of Children and Families; or initiating proceedings to remove the guardian.
Nothing in this subsection shall be construed to preclude the mandatory reporting requirements of chapter 39.
(5) Unless otherwise prohibited by law, a monitor may be allowed a reasonable fee as determined by the court and paid from the property of the ward. No full-time state, county, or municipal employee or officer shall be paid a fee for such investigation and report. If the court finds the motion for a court monitor to have been filed in bad faith, the costs of the proceeding, including attorney’s fees, may be assessed against the movant.
(6) The court may appoint the office of criminal conflict and civil regional counsel as monitor if the ward is indigent.
History.—s. 3, ch. 2006-77; s. 291, ch. 2014-19; s. 3, ch. 2015-83.
744.1076 Court orders appointing court monitors and emergency court monitors; reports of court monitors; orders finding no probable cause; public records exemptions.—
(1)(a) The order of any court appointing a court monitor pursuant to s. 744.107 or an emergency court monitor pursuant to s. 744.1075 is exempt from s. 24(a), Art. I of the State Constitution.
(b) The reports of an appointed court monitor or emergency court monitor relating to the medical condition, financial affairs, or mental health of the ward are confidential and exempt from s. 24(a), Art. I of the State Constitution. Such reports may be subject to inspection as determined by the court or upon a showing of good cause.
(c) The public records exemptions provided in this subsection expire if a court makes a finding of probable cause, except that information otherwise made confidential or exempt shall retain its confidential or exempt status.
(2) Court orders finding no probable cause pursuant to s. 744.107 or s. 744.1075 are confidential and exempt from s. 24(a), Art. I of the State Constitution; however, such orders may be subject to inspection as determined by the court or upon a showing of good cause.
History.—s. 1, ch. 2006-129; s. 161, ch. 2008-4; s. 1, ch. 2011-204.
744.108 Guardian and attorney fees and expenses.—
(1) A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward’s behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.
(2) When fees for a guardian or an attorney are submitted to the court for determination, the court shall consider the following criteria:
(a) The time and labor required;
(b) The novelty and difficulty of the questions involved and the skill required to perform the services properly;
(c) The likelihood that the acceptance of the particular employment will preclude other employment of the person;
(d) The fee customarily charged in the locality for similar services;
(e) The nature and value of the incapacitated person’s property, the amount of income earned by the estate, and the responsibilities and potential liabilities assumed by the person;
(f) The results obtained;
(g) The time limits imposed by the circumstances;
(h) The nature and length of the relationship with the incapacitated person; and
(i) The experience, reputation, diligence, and ability of the person performing the service.
(3) In awarding fees to attorney guardians, the court must clearly distinguish between fees and expenses for legal services and fees and expenses for guardian services and must have determined that no conflict of interest exists.
(4) 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.
(5) All petitions for guardian and attorney fees and expenses must be accompanied by an itemized description of the services performed for the fees and expenses sought to be recovered.
(6) A petition for fees or expenses may not be approved without prior notice to the guardian and to the ward, unless the ward is a minor or is totally incapacitated.
(7) A petition for fees shall include the period covered and the total amount of all prior fees paid or costs awarded to the petitioner in the guardianship proceeding currently before the court.
(8) When court proceedings are instituted to review or determine a guardian’s or an attorney’s fees under subsection (2), such proceedings are part of the guardianship administration process and the costs, including costs and attorney fees for the guardian’s attorney, an attorney appointed under s. 744.331(2), or an attorney who has rendered services to the ward, shall be determined by the court and paid from the assets of the guardianship estate unless the court finds the requested compensation under subsection (2) to be substantially unreasonable.
(9) The court may determine that a request for compensation by the guardian, the guardian’s attorney, a person employed by the guardian, an attorney appointed under s. 744.331(2), or an attorney who has rendered services to the ward, is reasonable without receiving expert testimony. A person or party may offer expert testimony for or against a request for compensation after giving notice to interested persons. Reasonable expert witness fees shall be awarded by the court and paid from the assets of the guardianship estate using the standards in subsection (8).
History.—ss. 18, 26, ch. 75-222; s. 11, ch. 89-96; s. 5, ch. 90-271; s. 2, ch. 96-354; s. 7, ch. 2003-57; s. 4, ch. 2015-83.
744.109 Records.—
(1) All hearings on appointment of a guardian; adjudication of incapacity; modification, termination, or revocation of the adjudication of incapacity; or restoration of capacity must be electronically or stenographically recorded.
(2) If an appeal is taken from any of these proceedings, a transcript must be furnished to an indigent ward at public expense.
History.—s. 12, ch. 89-96.
744.1095 Hearings.—At any hearing under this chapter, the alleged incapacitated person or the adjudicated ward has the right to:
(1) Remain silent and refuse to testify at the hearing. The person may not be held in contempt of court or otherwise penalized for refusing to testify. Refusal to testify may not be used as evidence of incapacity;
(2) Testify;
(3) Present evidence;
(4) Call witnesses;
(5) Confront and cross-examine all witnesses; and
(6) Have the hearing open or closed as she or he may choose.
History.—s. 13, ch. 89-96; s. 6, ch. 90-271; s. 1069, ch. 97-102.
744.1096 Domicile of ward.—The domicile of a resident ward is the county where the ward resides.
History.—s. 1, ch. 74-106; s. 5, ch. 75-222; s. 14, ch. 89-96; s. 5, ch. 2016-40.
Note.—Created from former s. 744.10; former s. 744.201.
744.1097 Venue.—
(1) The venue in proceedings for declaration of incapacity shall be where the alleged incapacitated person resides or is found. The provisions of this section do not apply to veterans.
(2) The venue in proceedings for the appointment of a guardian shall be:
(a) If the incapacitated person is a resident of this state, in the county where the incapacitated person resides.
(b) If the incapacitated person is not a resident of this state, in any county in this state where property of the incapacitated person is located.
(c) If the incapacitated person is not a resident of this state and owns no property in this state, in the county where any debtor of the incapacitated person resides.
(3) When the residence of an incapacitated person is changed to another county, the guardian shall petition to have the venue of the guardianship changed to the county of the acquired residence, except as provided in s. 744.1098.
(4) If an incapacitated person is a resident of this state and is found in a county other than the county of residence, the venue for declaration of incapacity and for the appointment of a guardian may be the county where the incapacitated person is found. Upon transfer of the incapacitated person to the county of residence, the guardian may have the venue of the guardianship changed to the county of residence and a successor guardian may be appointed.
History.—s. 1, ch. 74-106; s. 5, ch. 75-222; s. 15, ch. 89-96; s. 7, ch. 90-271; s. 33, ch. 95-401; s. 3, ch. 96-354; s. 6, ch. 2016-40.
Note.—Created from former s. 744.11; former s. 744.202.
744.1098 Change of ward’s residence.—
(1) PRIOR COURT APPROVAL REQUIRED.—A guardian who has power pursuant to this chapter to determine the residence of the ward may not, without court approval, change the residence of the ward from this state to another, or from one county of this state to another county of this state, unless such county is adjacent to the county of the ward’s current residence. Any guardian who wishes to remove the ward from the ward’s current county of residence to another county which is not adjacent to the ward’s current county of residence must obtain court approval prior to removal of the ward. In granting its approval, the court shall, at a minimum, consider the reason for such relocation and the longevity of such relocation.
(2) IMMEDIATE COURT NOTIFICATION REQUIRED.—Any guardian who wishes to remove the ward from the ward’s current county of residence to another county adjacent to the ward’s county of residence shall notify the court having jurisdiction of the guardianship within 15 days after relocation of the ward. Such notice shall state the compelling reasons for relocation of the ward and how long the guardian expects the ward to remain in such other county.
History.—s. 16, ch. 89-96; s. 8, ch. 90-271; s. 4, ch. 96-354; s. 7, ch. 2016-40.
Note.—Former s. 744.2025.
PART II
PUBLIC AND PROFESSIONAL GUARDIANS
744.2001 Office of Public and Professional Guardians.
744.2002 Professional guardian registration.
744.2003 Regulation of professional guardians; application; bond required; educational requirements.
744.2004 Complaints; disciplinary proceedings; penalties; enforcement.
744.20041 Grounds for discipline; penalties; enforcement.
744.2005 Order of appointment.
744.2006 Office of Public and Professional Guardians; appointment, notification.
744.2007 Powers and duties.
744.2008 Costs of public guardian.
744.2009 Preparation of budget.
744.2101 Procedures and rules.
744.2102 Surety bond.
744.2103 Reports and standards.
744.2104 Access to records by the Office of Public and Professional Guardians; confidentiality.
744.2105 Direct-support organization; definition; use of property; board of directors; audit; dissolution.
744.2106 Joining Forces for Public Guardianship grant program; purpose.
744.2107 Program administration; duties of the Office of Public and Professional Guardians.
744.2108 Eligibility.
744.2109 Grant application requirements; review criteria; awards process.
744.2111 Confidentiality.
744.2001 Office of Public and Professional Guardians.—There is created the Office of Public and Professional Guardians within the Department of Elderly Affairs.
(1) The Secretary of Elderly Affairs shall appoint the executive director, who shall be the head of the Office of Public and Professional Guardians. The executive director must be a member of The Florida Bar, knowledgeable of guardianship law and of the social services available to meet the needs of incapacitated persons, shall serve on a full-time basis, and shall personally, or through a representative of the office, carry out the purposes and functions of the Office of Public and Professional Guardians in accordance with state and federal law. The executive director shall serve at the pleasure of and report to the secretary.
(2) The executive director shall, within available resources:
(a) Have oversight responsibilities for all public and professional guardians.
(b) Establish standards of practice for public and professional guardians by rule, in consultation with professional guardianship associations and other interested stakeholders, no later than October 1, 2016. The executive director shall provide a draft of the standards to the Governor, the Legislature, and the secretary for review by August 1, 2016.
(c) Review and approve the standards and criteria for the education, registration, and certification of public and professional guardians in Florida.
(3) The executive director’s oversight responsibilities of professional guardians must be finalized by October 1, 2016, and shall include, but are not limited to:
(a) Developing and implementing a monitoring tool to ensure compliance of professional guardians with the standards of practice established by the Office of Public and Professional Guardians. This monitoring tool may not include a financial audit as required by the clerk of the circuit court under s. 744.368.
(b) Developing procedures, in consultation with professional guardianship associations and other interested stakeholders, for the review of an allegation that a professional guardian has violated the standards of practice established by the Office of Public and Professional Guardians governing the conduct of professional guardians.
(c) Establishing disciplinary proceedings, conducting hearings, and taking administrative action pursuant to chapter 120.
(4) The executive director’s oversight responsibilities of public guardians shall include, but are not limited to:
(a) Reviewing the current public guardian programs in Florida and other states.
(b) Developing, in consultation with local guardianship offices and other interested stakeholders, statewide performance measures.
(c) Reviewing various methods of funding public guardianship programs, the kinds of services being provided by such programs, and the demographics of the wards. In addition, the executive director shall review and make recommendations regarding the feasibility of recovering a portion or all of the costs of providing public guardianship services from the assets or income of the wards.
(d) By January 1 of each year, providing a status report and recommendations to the secretary which address the need for public guardianship services and related issues.
(e) Developing a guardianship training program curriculum that may be offered to all guardians, whether public or private.
(5) The executive director may provide assistance to local governments or entities in pursuing grant opportunities. The executive director shall review and make recommendations in the annual report on the availability and efficacy of seeking Medicaid matching funds. The executive director shall diligently seek ways to use existing programs and services to meet the needs of public wards.
(6) The executive director may conduct or contract for demonstration projects authorized by the Department of Elderly Affairs, within funds appropriated or through gifts, grants, or contributions for such purposes, to determine the feasibility or desirability of new concepts of organization, administration, financing, or service delivery designed to preserve the civil and constitutional rights of persons of marginal or diminished capacity. Any gifts, grants, or contributions for such purposes shall be deposited in the Department of Elderly Affairs Administrative Trust Fund.
History.—s. 4, ch. 99-277; s. 14, ch. 2003-57; s. 5, ch. 2003-262; s. 140, ch. 2005-2; s. 107, ch. 2013-18; s. 8, ch. 2016-40.
Note.—Former s. 744.7021.
744.2002 Professional guardian registration.—
(1) A professional guardian must register with the Office of Public and Professional Guardians established in part II of this chapter.
(2) Annual registration shall be made on forms furnished by the Office of Public and Professional Guardians and accompanied by the applicable registration fee as determined by rule. The fee may not exceed $100.
(3) Registration must include the following:
(a) Sufficient information to identify the professional guardian, as follows:
1. If the professional guardian is a natural person, the name, address, date of birth, and employer identification or social security number of the person.
2. If the professional guardian is a partnership or association, the name, address, and employer identification number of the entity.
(b) Documentation that the bonding and educational requirements of s. 744.2003 have been met.
(c) Sufficient information to distinguish a guardian providing guardianship services as a public guardian, individually, through partnership, corporation, or any other business organization.
(4) Prior to registering a professional guardian, the Office of Public and Professional Guardians must receive and review copies of the credit and criminal investigations conducted under s. 744.3135. The credit and criminal investigations must have been completed within the previous 2 years.
(5) The executive director of the office may deny registration to a professional guardian if the executive director determines that the guardian’s proposed registration, including the guardian’s credit or criminal investigations, indicates that registering the professional guardian would violate any provision of this chapter. If a guardian’s proposed registration is denied, the guardian has standing to seek judicial review of the denial pursuant to chapter 120.
(6) The Department of Elderly Affairs may adopt rules necessary to administer this section.
(7) 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 this state, may, but is not required to, register as a professional guardian under this section. If a trust company, state banking corporation, state savings association, national banking association, or federal savings and loan association described in this subsection elects to register as a professional guardian under this subsection, the requirements of subsections (3) and (4) do not apply and the registration must include only the name, address, and employer identification number of the registrant, the name and address of its registered agent, if any, and the documentation described in paragraph (3)(b).
(8) The Department of Elderly Affairs may contract with the Florida Guardianship Foundation or other not-for-profit entity to register professional guardians.
(9) The department or its contractor shall ensure that the clerks of the court and the chief judge of each judicial circuit receive information about each registered professional guardian.
(10) A state college or university or an independent college or university that is located and chartered in Florida, that is accredited by the Commission on Colleges of the Southern Association of Colleges and Schools or the Accrediting Council for Independent Colleges and Schools, and that confers degrees as defined in s. 1005.02(7) may, but is not required to, register as a professional guardian under this section. If a state college or university or independent college or university elects to register as a professional guardian under this subsection, the requirements of subsections (3) and (4) do not apply and the registration must include only the name, address, and employer identification number of the registrant.
History.—s. 3, ch. 2002-195; s. 8, ch. 2003-57; s. 10, ch. 2004-260; s. 2, ch. 2006-178; s. 2, ch. 2009-175; s. 9, ch. 2016-40.
Note.—Former s. 744.1083.
744.2003 Regulation of professional guardians; application; bond required; educational requirements.—
(1) The provisions of this section are in addition to and supplemental to any other provision of the Florida Guardianship Law, except s. 744.3145.
(2) Each professional guardian who files a petition for appointment after October 1, 1997, shall post a blanket fiduciary bond with the clerk of the circuit court in the county in which the guardian’s primary place of business is located. The guardian shall provide proof of the fiduciary bond to the clerks of each additional circuit court in which he or she is serving as a professional guardian. The bond shall be maintained by the guardian in an amount not less than $50,000. The bond must cover all wards for whom the guardian has been appointed at any given time. The liability of the provider of the bond is limited to the face amount of the bond, regardless of the number of wards for whom the professional guardian has been appointed. The act or omissions of each employee of a professional guardian who has direct contact with the ward or access to the ward’s assets is covered by the terms of such bond. The bond must be payable to the Governor of the State of Florida and his or her successors in office and conditioned on the faithful performance of all duties by the guardian. In form, the bond must be joint and several. The bond is in addition to any bonds required under s. 744.351. This subsection does not apply to any attorney who is licensed to practice law in this state and who is in good standing, to any financial institution as defined in s. 744.309(4), or a public guardian. The expenses incurred to satisfy the bonding requirements prescribed in this section may not be paid with the assets of any ward.
(3) Each professional guardian defined in s. 744.102(17) and public guardian must receive a minimum of 40 hours of instruction and training. Each professional guardian must receive a minimum of 16 hours of continuing education every 2 calendar years after the year in which the initial 40-hour educational requirement is met. The instruction and education must be completed through a course approved or offered by the Office of Public and Professional Guardians. The expenses incurred to satisfy the educational requirements prescribed in this section may not be paid with the assets of any ward. This subsection does not apply to any attorney who is licensed to practice law in this state or an institution acting as guardian under s. 744.2002(7).
(4) Each professional guardian must allow, at the guardian’s expense, an investigation of the guardian’s credit history, and the credit history of employees of the guardian, in a manner prescribed by the Department of Elderly Affairs.
(5) As required in s. 744.3135, each professional guardian shall allow a level 2 background screening of the guardian and employees of the guardian in accordance with the provisions of s. 435.04.
(6) Each professional guardian is required to demonstrate competency to act as a professional guardian by taking an examination approved by the Department of Elderly Affairs.
(a) The Department of Elderly Affairs shall determine the minimum examination score necessary for passage of guardianship examinations.
(b) The Department of Elderly Affairs shall determine the procedure for administration of the examination.
(c) The Department of Elderly Affairs or its contractor shall charge an examination fee for the actual costs of the development and the administration of the examination. The examination fee for a guardian may not exceed $500.
(d) The Department of Elderly Affairs may recognize passage of a national guardianship examination in lieu of all or part of the examination approved by the Department of Elderly Affairs, except that all professional guardians must take and pass an approved examination section related to Florida law and procedure.
(7) The Department of Elderly Affairs shall set the minimum score necessary to demonstrate professional guardianship competency.
(8) The Department of Elderly Affairs shall waive the examination requirement in subsection (6) if a professional guardian can provide:
(a) Proof that the guardian has actively acted as a professional guardian for 5 years or more; and
(b) A letter from a circuit judge before whom the professional guardian practiced at least 1 year which states that the professional guardian had demonstrated to the court competency as a professional guardian.
(9) The court may not appoint any professional guardian who is not registered by the Office of Public and Professional Guardians.
(10) This section does not apply to a professional guardian or the employees of that professional guardian when that guardian is a trust company, a state banking corporation, 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 this state.
History.—s. 1, ch. 97-161; s. 9, ch. 99-277; s. 9, ch. 2003-57; s. 17, ch. 2004-260; s. 62, ch. 2004-267; s. 32, ch. 2006-178; s. 10, ch. 2016-40.
Note.—Former s. 744.1085.
744.2004 Complaints; disciplinary proceedings; penalties; enforcement.—
(1) By October 1, 2016, the Office of Public and Professional Guardians shall establish procedures to:
(a) Review and, if determined legally sufficient, investigate any complaint that a professional guardian has violated the standards of practice established by the Office of Public and Professional Guardians governing the conduct of professional guardians. A complaint is legally sufficient if it contains ultimate facts that show a violation of a standard of practice by a professional guardian has occurred.
(b) Initiate an investigation no later than 10 business days after the Office of Public and Professional Guardians receives a complaint.
(c) Complete and provide initial investigative findings and recommendations, if any, to the professional guardian and the person who filed the complaint within 60 days after receipt.
(d) Obtain supporting information or documentation to determine the legal sufficiency of a complaint.
(e) Interview a ward, family member, or interested party to determine the legal sufficiency of a complaint.
(f) Dismiss any complaint if, at any time after legal sufficiency is determined, it is found there is insufficient evidence to support the allegations contained in the complaint.
(g) Coordinate, to the greatest extent possible, with the clerks of court to avoid duplication of duties with regard to the financial audits prepared by the clerks pursuant to s. 744.368.
(2) The Office of Public and Professional Guardians shall establish disciplinary proceedings, conduct hearings, and take administrative action pursuant to chapter 120. Disciplinary actions may include, but are not limited to, requiring a professional guardian to participate in additional educational courses provided or approved by the Office of Public and Professional Guardians, imposing additional monitoring by the office of the guardianships to which the professional guardian is appointed, and suspension or revocation of a professional guardian’s registration.
(3) In any disciplinary proceeding that may result in the suspension or revocation of a professional guardian’s registration, the Department of Elderly Affairs shall provide the professional guardian and the person who filed the complaint:
(a) A written explanation of how an administrative complaint is resolved by the disciplinary process.
(b) A written explanation of how and when the person may participate in the disciplinary process.
(c) A written notice of any hearing before the Division of Administrative Hearings at which final agency action may be taken.
(4) If the office makes a final determination to suspend or revoke the professional guardian’s registration, it must provide such determination to the court of competent jurisdiction for any guardianship case to which the professional guardian is currently appointed.
(5) If the office determines or has reasonable cause to suspect that a vulnerable adult has been or is being abused, neglected, or exploited as a result of a filed complaint or during the course of an investigation of a complaint, it shall immediately report such determination or suspicion to the central abuse hotline established and maintained by the Department of Children and Families pursuant to s. 415.103.
(6) By October 1, 2016, the Department of Elderly Affairs shall adopt rules to implement the provisions of this section.
History.—s. 11, ch. 2016-40.
744.20041 Grounds for discipline; penalties; enforcement.—
(1) The following acts by a professional guardian shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
(a) Making misleading, deceptive, or fraudulent representations in or related to the practice of guardianship.
(b) Violating any rule governing guardians or guardianships adopted by the Office of Public and Professional Guardians.
(c) Being convicted or found guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of or the ability to practice as a professional guardian.
(d) Failing to comply with the educational course requirements contained in s. 744.2003.
(e) Having a registration, a license, or the authority to practice a regulated profession revoked, suspended, or otherwise acted against, including the denial of registration or licensure, by the registering or licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation under Florida law. The registering or licensing authority’s acceptance of a relinquishment of registration or licensure, stipulation, consent order, or other settlement offered in response to or in anticipation of the filing of charges against the registration or license shall be construed as an action against the registration or license.
(f) Knowingly filing a false report or complaint with the Office of Public and Professional Guardians against another guardian.
(g) Attempting to obtain, obtaining, or renewing a registration or license to practice a profession by bribery, by fraudulent misrepresentation, or as a result of an error by the Office of Public and Professional Guardians which is known and not disclosed to the Office of Public and Professional Guardians.
(h) Failing to report to the Office of Public and Professional Guardians any person who the professional guardian knows is in violation of this chapter or the rules of the Office of Public and Professional Guardians.
(i) Failing to perform any statutory or legal obligation placed upon a professional guardian.
(j) Making or filing a report or record that the professional guardian knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, or willfully impeding or obstructing another person’s attempt to do so. Such reports or records shall include only those that are signed in the guardian’s capacity as a professional guardian.
(k) Using the position of guardian for the purpose of financial gain by a professional guardian or a third party, other than the funds awarded to the professional guardian by the court pursuant to s. 744.108.
(l) Violating a lawful order of the Office of Public and Professional Guardians or failing to comply with a lawfully issued subpoena of the Office of Public and Professional Guardians.
(m) Improperly interfering with an investigation or inspection authorized by statute or rule or with any disciplinary proceeding.
(n) Using the guardian relationship to engage or attempt to engage the ward, or an immediate family member or a representative of the ward, in verbal, written, electronic, or physical sexual activity.
(o) Failing to report to the Office of Public and Professional Guardians in writing within 30 days after being convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction.
(p) Being unable to perform the functions of a professional guardian with reasonable skill by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of substance or as a result of any mental or physical condition.
(q) Failing to post and maintain a blanket fiduciary bond pursuant to s. 744.2003.
(r) Failing to maintain all records pertaining to a guardianship for a reasonable time after the court has closed the guardianship matter.
(s) Violating any provision of this chapter or any rule adopted pursuant thereto.
(2) When the Office of Public and Professional Guardians finds a professional guardian guilty of violating subsection (1), it may enter an order imposing one or more of the following penalties:
(a) Refusal to register an applicant as a professional guardian.
(b) Suspension or permanent revocation of a professional guardian’s registration.
(c) Issuance of a reprimand or letter of concern.
(d) Requirement that the professional guardian undergo treatment, attend continuing education courses, submit to reexamination, or satisfy any terms that are reasonably tailored to the violations found.
(e) Requirement that the professional guardian pay restitution of any funds obtained, disbursed, or obtained through a violation of any statute, rule, or other legal authority to a ward or the ward’s estate, if applicable.
(f) Requirement that the professional guardian undergo remedial education.
(3) In determining what action is appropriate, the Office of Public and Professional Guardians must first consider what sanctions are necessary to safeguard wards and to protect the public. Only after those sanctions have been imposed may the Office of Public and Professional Guardians consider and include in the order requirements designed to mitigate the circumstances and rehabilitate the professional guardian.
(4) The Office of Public and Professional Guardians shall adopt by rule and periodically review the disciplinary guidelines applicable to each ground for disciplinary action that may be imposed by the Office of Public and Professional Guardians pursuant to this chapter.
(5) It is the intent of the Legislature that the disciplinary guidelines specify a meaningful range of designated penalties based upon the severity and repetition of specific offenses and that minor violations be distinguished from those which endanger the health, safety, or welfare of a ward or the public; that such guidelines provide reasonable and meaningful notice to the public of likely penalties that may be imposed for proscribed conduct; and that such penalties be consistently applied by the Office of Public and Professional Guardians.
(6) The Office of Public and Professional Guardians shall by rule designate possible mitigating and aggravating circumstances and the variation and range of penalties permitted for such circumstances.
(a) An administrative law judge, in recommending penalties in any recommended order, must follow the disciplinary guidelines established by the Office of Public and Professional Guardians and must state in writing any mitigating or aggravating circumstance upon which a recommended penalty is based if such circumstance causes the administrative law judge to recommend a penalty other than that provided in the disciplinary guidelines.
(b) The Office of Public and Professional Guardians may impose a penalty other than those provided for in the disciplinary guidelines upon a specific finding in the final order of mitigating or aggravating circumstances.
(7) In addition to, or in lieu of, any other remedy or criminal prosecution, the Office of Public and Professional Guardians may file a proceeding in the name of the state seeking issuance of an injunction or a writ of mandamus against any person who violates any provision of this chapter or any provision of law with respect to professional guardians or the rules adopted pursuant thereto.
(8) Notwithstanding chapter 120, if the Office of Public and Professional Guardians determines that revocation of a professional guardian’s registration is the appropriate penalty, the revocation is permanent.
(9) If the Office of Public and Professional Guardians makes a final determination to suspend or revoke the professional guardian’s registration, the office must provide the determination to the court of competent jurisdiction for any guardianship case to which the professional guardian is currently appointed.
(10) The purpose of this section is to facilitate uniform discipline for those actions made punishable under this section and, to this end, a reference to this section constitutes a general reference under the doctrine of incorporation by reference.
(11) The Office of Public and Professional Guardians shall adopt rules to administer this section.
History.—s. 12, ch. 2016-40; s. 45, ch. 2017-3.
744.2005 Order of appointment.—
(1) The court may hear testimony on the question of who is entitled to preference in the appointment of a guardian. Any interested person may intervene in the proceedings.
(2) The order appointing a guardian must state the nature of the guardianship as either plenary or limited. If limited, the order must state that the guardian may exercise only those delegable rights which have been removed from the incapacitated person and specifically delegated to the guardian. The order shall state the specific powers and duties of the guardian.
(3) The order appointing a guardian must be consistent with the incapacitated person’s welfare and safety, must be the least restrictive appropriate alternative, and must reserve to the incapacitated person the right to make decisions in all matters commensurate with the person’s ability to do so.
(4) If a petition for appointment of a guardian has been filed, an order appointing a guardian must be issued contemporaneously with the order adjudicating the person incapacitated. The order must specify the amount of the bond to be given by the guardian and must state specifically whether the guardian must place all, or part, of the property of the ward in a restricted account in a financial institution designated pursuant to s. 69.031.
(5) If a petition for the appointment of a guardian has not been filed or ruled upon at the time of the hearing on the petition to determine capacity, the court may appoint an emergency temporary guardian in the manner and for the purposes specified in s. 744.3031.
(6) A plenary guardian shall exercise all delegable rights and powers of the incapacitated person.
(7) A person for whom a limited guardian has been appointed retains all legal rights except those that have been specifically granted to the guardian in the court’s written order.
History.—s. 1, ch. 74-106; ss. 12, 26, ch. 75-222; s. 39, ch. 89-96; s. 24, ch. 90-271; s. 1081, ch. 97-102; s. 12, ch. 2015-83; s. 13, ch. 2016-40.
Note.—Created from former s. 744.34; former s. 744.344.
744.2006 Office of Public and Professional Guardians; appointment, notification.—
(1) The executive director of the Office of Public and Professional Guardians, after consultation with the chief judge and other circuit judges within the judicial circuit and with appropriate advocacy groups and individuals and organizations who are knowledgeable about the needs of incapacitated persons, may establish, within a county in the judicial circuit or within the judicial circuit, one or more offices of public guardian and if so established, shall create a list of persons best qualified to serve as the public guardian, who have been investigated pursuant to s. 744.3135. The public guardian must have knowledge of the legal process and knowledge of social services available to meet the needs of incapacitated persons. The public guardian shall maintain a staff or contract with professionally qualified individuals to carry out the guardianship functions, including an attorney who has experience in probate areas and another person who has a master’s degree in social work, or a gerontologist, psychologist, registered nurse, or nurse practitioner. A public guardian that is a nonprofit corporate guardian under s. 744.309(5) must receive tax-exempt status from the United States Internal Revenue Service.
(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). 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.
(3) If the needs of the county or circuit do not require a full-time public guardian, a part-time public guardian may be appointed at reduced compensation.
(4) A public guardian, whether full-time or part-time, may not hold any position that would create a conflict of interest.
(5) The public guardian is to be appointed for a term of 4 years, after which her or his appointment must be reviewed by the executive director, and may be reappointed for a term of up to 4 years. The executive director may suspend a public guardian with or without the request of the chief judge. If a public guardian is suspended, the executive director shall appoint an acting public guardian as soon as possible to serve until such time as a permanent replacement is selected. A public guardian may be removed from office during the term of office only by the executive director who must consult with the chief judge prior to said removal. A recommendation of removal made by the chief judge must be considered by the executive director.
(6) Public guardians who have been previously appointed by a chief judge prior to the effective date of this act pursuant to this section may continue in their positions until the expiration of their term pursuant to their agreement. However, oversight of all public guardians shall transfer to the Office of Public and Professional Guardians upon the effective date of this act. The executive director of the Office of Public and Professional Guardians shall be responsible for all future appointments of public guardians pursuant to this act.
History.—s. 1, ch. 86-120; s. 98, ch. 89-96; s. 69, ch. 95-211; s. 27, ch. 95-401; s. 16, ch. 96-354; s. 1789, ch. 97-102; s. 5, ch. 99-277; s. 8, ch. 2002-195; s. 14, ch. 2016-40.
Note.—Former s. 744.703.
744.2007 Powers and duties.—
(1) A public guardian may serve as a guardian of a person adjudicated incapacitated under this chapter if there is no family member or friend, other person, bank, or corporation willing and qualified to serve as guardian.
(2) The public guardian shall be vested with all the powers and duties of a guardian under this chapter, except as otherwise provided by law.
(3) The public guardian shall primarily serve incapacitated persons who are of limited financial means, as defined by contract or rule of the Department of Elderly Affairs. The public guardian may serve incapacitated persons of greater financial means to the extent the Department of Elderly Affairs determines to be appropriate.
(4) The public guardian shall be authorized to employ sufficient staff to carry out the duties of his or her office.
(5) The public guardian may delegate to assistants and other members of his or her staff the powers and duties of the office of public guardian, except as otherwise limited by law. The public guardian shall retain ultimate responsibility for the discharge of his or her duties and responsibilities.
(6) The public guardian, when appointed guardian of an incapacitated person, shall seek a family member or friend, other person, bank, or corporation who is qualified and willing to serve as guardian. Upon determining that there is someone qualified and willing to serve as guardian, either the public guardian or the qualified person shall petition the court for appointment of a successor guardian.
(7) A public guardian may not commit a ward to a treatment facility, as defined in s. 394.455(47), without an involuntary placement proceeding as provided by law.
(8) When a person is appointed successor public guardian, he or she immediately succeeds to all rights, duties, responsibilities, and powers of the preceding public guardian.
(9) When the position of public guardian is vacant, subordinate personnel employed under subsection (4) shall continue to act as if the position of public guardian were filled.
History.—s. 1, ch. 86-120; s. 99, ch. 89-96; s. 45, ch. 96-169; s. 1790, ch. 97-102; s. 86, ch. 99-3; s. 15, ch. 2003-57; s. 71, ch. 2006-227; s. 15, ch. 2016-40; s. 78, ch. 2016-241.
Note.—Former s. 744.704.
744.2008 Costs of public guardian.—
(1) All costs of administration, including filing fees, shall be paid from the budget of the office of public guardian. No costs of administration, including filing fees, shall be recovered from the assets or the income of the ward.
(2) In any proceeding for appointment of a public guardian, or in any proceeding involving the estate of a ward for whom a public guardian has been appointed guardian, the court may waive any court costs or filing fees.
History.—s. 1, ch. 86-120; s. 100, ch. 89-96; s. 16, ch. 2016-40.
Note.—Former s. 744.705.
744.2009 Preparation of budget.—Each public guardian, whether funded in whole or in part by money raised through local efforts, grants, or any other source or whether funded in whole or in part by the state, shall prepare a budget for the operation of the office of public guardian to be submitted to the Office of Public and Professional Guardians. As appropriate, the Office of Public and Professional Guardians will include such budgetary information in the Department of Elderly Affairs’ legislative budget request. The office of public guardian shall be operated within the limitations of the General Appropriations Act and any other funds appropriated by the Legislature to that particular judicial circuit, subject to the provisions of chapter 216. The Department of Elderly Affairs shall make a separate and distinct request for an appropriation for the Office of Public and Professional Guardians. However, this section may not be construed to preclude the financing of any operations of the office of public guardian by moneys raised through local effort or through the efforts of the Office of Public and Professional Guardians.
History.—s. 1, ch. 86-120; s. 101, ch. 89-96; s. 6, ch. 99-277; s. 17, ch. 2016-40.
Note.—Former s. 744.706.
744.2101 Procedures and rules.—The public guardian, subject to the oversight of the Office of Public and Professional Guardians, is authorized to:
(1) Formulate and adopt necessary procedures to assure the efficient conduct of the affairs of the ward and general administration of the office and staff.
(2) Contract for services necessary to discharge the duties of the office.
(3) Accept the services of volunteer persons or organizations and provide reimbursement for proper and necessary expenses.
History.—s. 1, ch. 86-120; s. 102, ch. 89-96; s. 7, ch. 99-277; s. 18, ch. 2016-40.
Note.—Former s. 744.707.
744.2102 Surety bond.—Upon taking office, a public guardian shall file a bond with surety as prescribed in s. 45.011 to be approved by the clerk. The bond shall be payable to the Governor and the Governor’s successors in office, in the penal sum of not less than $5,000 nor more than $25,000, conditioned on the faithful performance of all duties by the guardian. The amount of the bond shall be fixed by the majority of the judges within the judicial circuit. In form the bond shall be joint and several. The bond shall be purchased from the funds of the local office of public guardian.
History.—s. 1, ch. 86-120; s. 104, ch. 89-96; s. 1128, ch. 97-102; s. 11, ch. 99-277; s. 19, ch. 2016-40.
Note.—Former s. 744.709.
744.2103 Reports and standards.—
(1) The public guardian shall keep and maintain proper financial, case control, and statistical records on all matters in which the public guardian serves as guardian.
(2) No report or disclosure of the ward’s personal and medical records shall be made, except as authorized by law.
(3) A public guardian shall file an annual report on the operations of the office of public guardian, in writing, by September 1 for the preceding fiscal year with the Office of Public and Professional Guardians, which shall have responsibility for supervision of the operations of the office of public guardian.
(4) Within 6 months of his or her appointment as guardian of a ward, the public guardian shall submit to the clerk of the court for placement in the ward’s guardianship file and to the executive director of the Office of Public and Professional Guardians a report on his or her efforts to locate a family member or friend, other person, bank, or corporation to act as guardian of the ward and a report on the ward’s potential to be restored to capacity.
(5)(a) Each office of public guardian shall undergo an independent audit by a qualified certified public accountant at least once every 2 years. A copy of the audit report shall be submitted to the Office of Public and Professional Guardians.
(b) In addition to regular monitoring activities, the Office of Public and Professional Guardians shall conduct an investigation into the practices of each office of public guardian related to the managing of each ward’s personal affairs and property. If feasible, the investigation shall be conducted in conjunction with the financial audit of each office of public guardian under paragraph (a).
(6) A public guardian shall ensure that each of the guardian’s wards is personally visited by the public guardian or by one of the guardian’s professional staff at least once each calendar quarter. During this personal visit, the public guardian or the professional staff person shall assess:
(a) The ward’s physical appearance and condition.
(b) The appropriateness of the ward’s current living situation.
(c) The need for any additional services and the necessity for continuation of existing services, taking into consideration all aspects of social, psychological, educational, direct service, health, and personal care needs.
(7) The ratio for professional staff to wards shall be 1 professional to 40 wards. The Office of Public and Professional Guardians may increase or decrease the ratio after consultation with the local public guardian and the chief judge of the circuit court. The basis for the decision to increase or decrease the prescribed ratio must be included in the annual report to the secretary.
History.—s. 1, ch. 86-120; s. 103, ch. 89-96; s. 17, ch. 96-354; s. 1791, ch. 97-102; s. 8, ch. 99-277; s. 127, ch. 2001-266; s. 27, ch. 2006-178; s. 159, ch. 2010-102; s. 20, ch. 2016-40.
Note.—Former s. 744.708.
744.2104 Access to records by the Office of Public and Professional Guardians; confidentiality.—
(1) Notwithstanding any other provision of law to the contrary, any medical, financial, or mental health records held by an agency, or the court and its agencies, or financial audits prepared by the clerk of the court pursuant to s. 744.368 and held by the court, which are necessary as part of an investigation of a guardian as a result of a complaint filed with the Office of Public and Professional Guardians to evaluate the public guardianship system, to assess the need for additional public guardianship, or to develop required reports, shall be provided to the Office of Public and Professional Guardians upon that office’s request. Any confidential or exempt information provided to the Office of Public and Professional Guardians shall continue to be held confidential or exempt as otherwise provided by law.
(2) All records held by the Office of Public and Professional Guardians relating to the medical, financial, or mental health of vulnerable adults as defined in chapter 415, persons with a developmental disability as defined in chapter 393, or persons with a mental illness as defined in chapter 394, shall be confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
History.—s. 1, ch. 99-278; s. 112, ch. 2000-349; s. 1, ch. 2004-361; s. 21, ch. 2016-40.
Note.—Former s. 744.7081.
744.2105 Direct-support organization; definition; use of property; board of directors; audit; dissolution.—
(1) DEFINITION.—As used in this section, the term “direct-support organization” means an organization whose sole purpose is to support the Office of Public and Professional Guardians and is:
(a) A not-for-profit corporation incorporated under chapter 617 and approved by the Department of State;
(b) Organized and operated to conduct programs and activities; to raise funds; to request and receive grants, gifts, and bequests of moneys; to acquire, receive, hold, invest, and administer, in its own name, securities, funds, objects of value, or other property, real or personal; and to make expenditures to or for the direct or indirect benefit of the Office of Public and Professional Guardians; and
(c) Determined by the Office of Public and Professional Guardians to be consistent with the goals of the office, in the best interests of the state, and in accordance with the adopted goals and mission of the Department of Elderly Affairs and the Office of Public and Professional Guardians.
(2) CONTRACT.—The direct-support organization shall operate under a written contract with the Office of Public and Professional Guardians. The written contract must provide for:
(a) Certification by the Office of Public and Professional Guardians that the direct-support organization is complying with the terms of the contract and is doing so consistent with the goals and purposes of the office and in the best interests of the state. This certification must be made annually and reported in the official minutes of a meeting of the direct-support organization.
(b) The reversion of moneys and property held in trust by the direct-support organization:
1. To the Office of Public and Professional Guardians if the direct-support organization is no longer approved to operate for the office;
2. To the Office of Public and Professional Guardians if the direct-support organization ceases to exist;
3. To the Department of Elderly Affairs if the Office of Public and Professional Guardians ceases to exist; or
4. To the state if the Department of Elderly Affairs ceases to exist.
The fiscal year of the direct-support organization shall begin on July 1 of each year and end on June 30 of the following year.
(c) The disclosure of the material provisions of the contract, and the distinction between the Office of Public and Professional Guardians and the direct-support organization, to donors of gifts, contributions, or bequests, including such disclosure on all promotional and fundraising publications.
(3) BOARD OF DIRECTORS.—The Secretary of Elderly Affairs shall appoint a board of directors for the direct-support organization from a list of nominees submitted by the executive director of the Office of Public and Professional Guardians.
(4) USE OF PROPERTY.—The Department of Elderly Affairs may permit, without charge, appropriate use of fixed property and facilities of the department or the Office of Public and Professional Guardians by the direct-support organization. The department may prescribe any condition with which the direct-support organization must comply in order to use fixed property or facilities of the department or the Office of Public and Professional Guardians.
(5) MONEYS.—Any moneys may be held in a separate depository account in the name of the direct-support organization and subject to the provisions of the written contract with the Office of Public and Professional Guardians. Expenditures of the direct-support organization shall be expressly used to support the Office of Public and Professional Guardians. The expenditures of the direct-support organization may not be used for the purpose of lobbying as defined in s. 11.045.
(6) PUBLIC RECORDS.—Personal identifying information of a donor or prospective donor to the direct-support organization who desires to remain anonymous is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
(7) AUDIT.—The direct-support organization shall provide for an annual financial audit in accordance with s. 215.981.
(8) DISSOLUTION.—A not-for-profit corporation incorporated under chapter 617 that is determined by a circuit court to be representing itself as a direct-support organization created under this section, but that does not have a written contract with the Office of Public and Professional Guardians in compliance with this section, is considered to meet the grounds for a judicial dissolution described in s. 617.1430(1)(a). The Office of Public and Professional Guardians shall be the recipient for all assets held by the dissolved corporation which accrued during the period that the dissolved corporation represented itself as a direct-support organization created under this section.
(9) REPEAL.—This section is repealed October 1, 2018, unless reviewed and saved from repeal by the Legislature.
History.—s. 9, ch. 2002-195; s. 14, ch. 2004-260; ss. 1, 2, ch. 2006-179; ss. 1, 2, ch. 2011-228; s. 25, ch. 2014-96; s. 22, ch. 2016-40.
Note.—Former s. 744.7082.
744.2106 Joining Forces for Public Guardianship grant program; purpose.—The Legislature establishes the Joining Forces for Public Guardianship matching grant program for the purpose of assisting counties to establish and fund community-supported public guardianship programs. The Joining Forces for Public Guardianship matching grant program shall be established and administered by the Office of Public and Professional Guardians within the Department of Elderly Affairs. The purpose of the program is to provide startup funding to encourage communities to develop and administer locally funded and supported public guardianship programs to address the needs of indigent and incapacitated residents.
(1) The Office of Public and Professional Guardians may distribute the grant funds as follows:
(a) As initial startup funding to encourage counties that have no office of public guardian to establish an office, or as initial startup funding to open an additional office of public guardian within a county whose public guardianship needs require more than one office of public guardian.
(b) As support funding to operational offices of public guardian that demonstrate a necessity for funds to meet the public guardianship needs of a particular geographic area in the state which the office serves.
(c) To assist counties that have an operating public guardianship program but that propose to expand the geographic area or population of persons they serve, or to develop and administer innovative programs to increase access to public guardianship in this state.
Notwithstanding this subsection, the executive director of the office may award emergency grants if he or she determines that the award is in the best interests of public guardianship in this state. Before making an emergency grant, the executive director must obtain the written approval of the Secretary of Elderly Affairs. Subsections (2), (3), and (4) do not apply to the distribution of emergency grant funds.
(2) One or more grants may be awarded within a county. However, a county may not receive an award that equals, or multiple awards that cumulatively equal, more than 20 percent of the total amount of grant funds appropriated during any fiscal year.
(3) If an applicant is eligible and meets the requirements to receive grant funds more than once, the Office of Public and Professional Guardians shall award funds to prior awardees in the following manner:
(a) In the second year that grant funds are awarded, the cumulative sum of the award provided to one or more applicants within the same county may not exceed 75 percent of the total amount of grant funds awarded within that county in year one.
(b) In the third year that grant funds are awarded, the cumulative sum of the award provided to one or more applicants within the same county may not exceed 60 percent of the total amount of grant funds awarded within that county in year one.
(c) In the fourth year that grant funds are awarded, the cumulative sum of the award provided to one or more applicants within the same county may not exceed 45 percent of the total amount of grant funds awarded within that county in year one.
(d) In the fifth year that grant funds are awarded, the cumulative sum of the award provided to one or more applicants within the same county may not exceed 30 percent of the total amount of grant funds awarded within that county in year one.
(e) In the sixth year that grant funds are awarded, the cumulative sum of the award provided to one or more applicants within the same county may not exceed 15 percent of the total amount of grant funds awarded within that county in year one.
The Office of Public and Professional Guardians may not award grant funds to any applicant within a county that has received grant funds for more than 6 years.
(4) Grant funds shall be used only to provide direct services to indigent wards, except that up to 10 percent of the grant funds may be retained by the awardee for administrative expenses.
(5) Implementation of the program is subject to a specific appropriation by the Legislature in the General Appropriations Act.
History.—s. 3, ch. 2004-260; s. 23, ch. 2016-40.
Note.—Former s. 744.712.
744.2107 Program administration; duties of the Office of Public and Professional Guardians.—The Office of Public and Professional Guardians shall administer the grant program. The office shall:
(1) Publicize the availability of grant funds to entities that may be eligible for the funds.
(2) Establish an application process for submitting a grant proposal.
(3) Request, receive, and review proposals from applicants seeking grant funds.
(4) Determine the amount of grant funds each awardee may receive and award grant funds to applicants.
(5) Develop a monitoring process to evaluate grant awardees, which may include an annual monitoring visit to each awardee’s local office.
(6) Ensure that persons or organizations awarded grant funds meet and adhere to the requirements of this act.
History.—s. 4, ch. 2004-260; s. 108, ch. 2013-18; s. 24, ch. 2016-40.
Note.—Former s. 744.713.
744.2108 Eligibility.—
(1) Any person or organization that has not been awarded a grant must meet all of the following conditions to be eligible to receive a grant:
(a) The applicant must meet or directly employ staff that meet the minimum qualifications for a public guardian under this chapter.
(b) The applicant must have already been appointed by, or is pending appointment by, the Office of Public and Professional Guardians to become an office of public guardian in this state.
(2) Any person or organization that has been awarded a grant must meet all of the following conditions to be eligible to receive another grant:
(a) The applicant must meet or directly employ staff that meet the minimum qualifications for a public guardian under this chapter.
(b) The applicant must have been appointed by, or is pending reappointment by, the Office of Public and Professional Guardians to be an office of public guardian in this state.
(c) The applicant must have achieved a satisfactory monitoring score during the applicant’s most recent evaluation.
History.—s. 5, ch. 2004-260; s. 25, ch. 2016-40.
Note.—Former s. 744.714.
744.2109 Grant application requirements; review criteria; awards process.—Grant applications must be submitted to the Office of Public and Professional Guardians for review and approval.
(1) A grant application must contain:
(a) The specific amount of funds being requested.
(b) The proposed annual budget for the office of public guardian for which the applicant is applying on behalf of, including all sources of funding, and a detailed report of proposed expenditures, including administrative costs.
(c) The total number of wards the applicant intends to serve during the grant period.
(d) Evidence that the applicant has:
1. Attempted to procure funds and has exhausted all possible other sources of funding; or
2. Procured funds from local sources, but the total amount of the funds collected or pledged is not sufficient to meet the need for public guardianship in the geographic area that the applicant intends to serve.
(e) An agreement or confirmation from a local funding source, such as a county, municipality, or any other public or private organization, that the local funding source will contribute matching funds to the public guardianship program totaling not less than $1 for every $1 of grant funds awarded. For purposes of this section, an applicant may provide evidence of agreements or confirmations from multiple local funding sources showing that the local funding sources will pool their contributed matching funds to the public guardianship program for a combined total of not less than $1 for every $1 of grant funds awarded. In-kind contributions, such as materials, commodities, office space, or other types of facilities, personnel services, or other items as determined by rule shall be considered by the office and may be counted as part or all of the local matching funds.
(f) A detailed plan describing how the office of public guardian for which the applicant is applying on behalf of will be funded in future years.
(g) Any other information determined by rule as necessary to assist in evaluating grant applicants.
(2) If the Office of Public and Professional Guardians determines that an applicant meets the requirements for an award of grant funds, the office may award the applicant any amount of grant funds the executive director deems appropriate, if the amount awarded meets the requirements of this act. The office may adopt a rule allocating the maximum allowable amount of grant funds which may be expended on any ward.
(3) A grant awardee must submit a new grant application for each year of additional funding.
(4)(a) In the first year of the Joining Forces for Public Guardianship program’s existence, the Office of Public and Professional Guardians shall give priority in awarding grant funds to those entities that:
1. Are operating as appointed offices of public guardians in this state;
2. Meet all of the requirements for being awarded a grant under this act; and
3. Demonstrate a need for grant funds during the current fiscal year due to a loss of local funding formerly raised through court filing fees.
(b) In each fiscal year after the first year that grant funds are distributed, the Office of Public and Professional Guardians may give priority to awarding grant funds to those entities that:
1. Meet all of the requirements of this section and ss. 744.2106, 744.2107, and 744.2108 for being awarded grant funds; and
2. Submit with their application an agreement or confirmation from a local funding source, such as a county, municipality, or any other public or private organization, that the local funding source will contribute matching funds totaling an amount equal to or exceeding $2 for every $1 of grant funds awarded by the office. An entity may submit with its application agreements or confirmations from multiple local funding sources showing that the local funding sources will pool their contributed matching funds to the public guardianship program for a combined total of not less than $2 for every $1 of grant funds awarded. In-kind contributions allowable under this section shall be evaluated by the Office of Public and Professional Guardians and may be counted as part or all of the local matching funds.
History.—s. 6, ch. 2004-260; s. 26, ch. 2016-40.
Note.—Former s. 744.715.
744.2111 Confidentiality.—
(1) The following are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution, when held by the Department of Elderly Affairs in connection with a complaint filed and any subsequent investigation conducted pursuant to this part, unless the disclosure is required by court order:
(a) Personal identifying information of a complainant or ward.
(b) All personal health and financial records of a ward.
(c) All photographs and video recordings.
(2) Except as otherwise provided in this section, information held by the department, is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the investigation is completed or ceases to be active, unless the disclosure is required by court order.
(3) This section does not prohibit the department from providing such information to any law enforcement agency, any other regulatory agency in the performance of its official duties and responsibilities, or the clerk of the circuit court pursuant to s. 744.368.
(4) The exemption under this section applies to all documents received by the department in connection with a complaint before, on, or after July 1, 2017.
(5) This section is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2022, unless reviewed and saved from repeal through reenactment by the Legislature.
History.—s. 1, ch. 2017-176.
PART III
TYPES OF GUARDIANSHIP
744.301 Natural guardians.
744.3021 Guardians of minors.
744.3025 Claims of minors.
744.3031 Emergency temporary guardianship.
744.304 Standby guardianship.
744.3045 Preneed guardian.
744.3046 Preneed guardian for minor.
744.306 Foreign guardians.
744.307 Foreign guardian may manage the property of nonresident ward.
744.308 Resident guardian of the property of nonresident ward.
744.3085 Guardian advocates.
744.301 Natural guardians.—
(1) The parents jointly are the natural guardians of their own children and of their adopted children, during minority, unless the parents’ parental rights have been terminated pursuant to chapter 39. If a child is the subject of any proceeding under chapter 39, the parents may act as natural guardians under this section unless the court division with jurisdiction over guardianship matters finds that it is not in the child’s best interests. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians. If the marriage is dissolved and neither parent is given parental responsibility for the child, neither may act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.
(2) Except as otherwise provided in this chapter, on behalf of any of their minor children, and without appointment, authority, or bond if the amounts received in the aggregate do not exceed $15,000, natural guardians may:
(a) Settle and consummate a settlement of any claim or cause of action accruing to any of their minor children for damages to the person or property of any minor children;
(b) Collect, receive, manage, and dispose of the proceeds of any settlement;
(c) Collect, receive, manage, and dispose of any real or personal property distributed from an estate or trust;
(d) Collect, receive, manage, and dispose of and make elections regarding the proceeds from a life insurance policy or annuity contract payable to, or otherwise accruing to the benefit of, the child; and
(e) Collect, receive, manage, dispose of, and make elections regarding the proceeds of any benefit plan as defined in s. 710.102, of which the minor is a beneficiary, participant, or owner.
(3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.
(a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:
1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and
2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.
(b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:
NOTICE TO THE MINOR CHILD’S NATURAL GUARDIAN
READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT, EVEN IF (name of released party or parties) USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM (name of released party or parties) IN A LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND (name of released party or parties) HAS THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.
(c) If a waiver or release complies with paragraph (b) and waives no more than allowed under this subsection, there is a rebuttable presumption that the waiver or release is valid and that any injury or damage to the minor child arose from the inherent risk involved in the activity.
1. To rebut the presumption that the waiver or release is valid, a claimant must demonstrate by a preponderance of the evidence that the waiver or release does not comply with this subsection.
2. To rebut the presumption that the injury or damage to the minor child arose from an inherent risk involved in the activity, a claimant must demonstrate by clear and convincing evidence that the conduct, condition, or other cause resulting in the injury or damage was not an inherent risk of the activity.
3. If a presumption under this paragraph is rebutted, liability and compensatory damages must be established by a preponderance of the evidence.
(d) Nothing in this subsection limits the ability of natural guardians, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a noncommercial activity provider, or its owners, affiliates, employees, or agents, to the extent authorized by common law.
(4) All instruments executed by a natural guardian for the benefit of the ward under the powers specified in this section are binding on the ward. The natural guardian may not, without a court order, use the property of the ward for the guardian’s benefit or to satisfy the guardian’s support obligation to the ward.
History.—s. 1, ch. 74-106; s. 8, ch. 75-166; s. 7, ch. 75-222; s. 1, ch. 77-190; s. 3, ch. 79-221; s. 17, ch. 89-96; s. 22, ch. 92-200; s. 66, ch. 95-211; s. 73, ch. 97-170; s. 11, ch. 2002-195; s. 8, ch. 2005-101; s. 3, ch. 2006-178; s. 2, ch. 2010-27; s. 1, ch. 2012-48; s. 5, ch. 2015-112.
Note.—Created from former s. 744.13.
744.3021 Guardians of minors.—
(1) Except as provided in subsection (4), upon petition of a parent, brother, sister, next of kin, or other person interested in the welfare of a minor, a guardian for a minor may be appointed by the court without the necessity of adjudication pursuant to s. 744.331. A guardian appointed for a minor, whether of the person or property, has the authority of a plenary guardian.
(2) A minor is not required to attend the hearing on the petition for appointment of a guardian, unless otherwise directed by the court.
(3) In its discretion, the court may appoint an attorney to represent the interests of a minor at the hearing on the petition for appointment of a guardian.
(4) If a petition is filed pursuant to this section requesting appointment of a guardian for a minor who is the subject of any proceeding under chapter 39 and who is aged 17 years and 6 months or older, the court division with jurisdiction over guardianship matters has jurisdiction over the proceedings under s. 744.331. The alleged incapacitated minor under this subsection shall be provided all the due process rights conferred upon an alleged incapacitated adult pursuant to this chapter and applicable court rules. The order of adjudication under s. 744.331 and the letters of limited or plenary guardianship may issue upon the minor’s 18th birthday or as soon thereafter as possible. Any proceeding pursuant to this subsection shall be conducted separately from any other proceeding.
History.—s. 9, ch. 90-271; s. 6, ch. 2015-112.
744.3025 Claims of minors.—
(1)(a) The court may appoint a guardian ad litem to represent the minor’s interest before approving a settlement of the minor’s portion of the claim in a case in which a minor has a claim for personal injury, property damage, wrongful death, or other cause of action in which the gross settlement of the claim exceeds $15,000 if the court believes a guardian ad litem is necessary to protect the minor’s interest.
(b) Except as provided in paragraph (e), the court shall appoint a guardian ad litem to represent the minor’s interest before approving a settlement of the minor’s claim in a case in which the gross settlement involving a minor equals or exceeds $50,000.
(c) The appointment of the guardian ad litem must be without the necessity of bond or notice.
(d) The duty of the guardian ad litem is to protect the minor’s interests as described in the Florida Probate Rules.
(e) A court need not appoint a guardian ad litem for the minor if a guardian of the minor has previously been appointed and that guardian has no potential adverse interest to the minor.
(2) Unless waived, the court shall award reasonable fees and costs to the guardian ad litem to be paid out of the gross proceeds of the settlement.
(3) A settlement of a claim pursuant to this section is subject to the confidentiality provisions of this chapter.
History.—s. 4, ch. 2006-178; s. 5, ch. 2015-83.
744.3031 Emergency temporary guardianship.—
(1) A court, prior to appointment of a guardian but after a petition for determination of incapacity has been filed pursuant to this chapter, may appoint an emergency temporary guardian for the person or property, or both, of an alleged incapacitated person. The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. The subject of the proceeding or any adult interested in the welfare of that person may apply to the court in which the proceeding is pending for the emergency appointment of a temporary guardian. The powers and duties of the emergency temporary guardian must be specifically enumerated by court order. The court shall appoint counsel to represent the alleged incapacitated person during any such summary proceedings, and such appointed counsel may request that the proceeding be recorded and transcribed.
(2) Notice of filing of the petition for appointment of an emergency temporary guardian and a hearing on the petition must be served on the alleged incapacitated person and on the alleged incapacitated person’s attorney at least 24 hours before the hearing on the petition is commenced, unless the petitioner demonstrates that substantial harm to the alleged incapacitated person would occur if the 24-hour notice is given.
(3) The court may appoint an emergency temporary guardian on its own motion if no petition for appointment of guardian has been filed at the time of entry of an order determining incapacity.
(4) The authority of an emergency temporary guardian expires 90 days after the date of appointment or when a guardian is appointed, whichever occurs first. The authority of the emergency temporary guardian may be extended for an additional 90 days upon a showing that the emergency conditions still exist.
(5) The court may issue an injunction, restraining order, or other appropriate writ to protect the physical or mental health or safety of the person who is the ward of the emergency temporary guardianship.
(6) The emergency temporary guardian shall take an oath to faithfully perform the duties of a guardian before letters of emergency temporary guardianship are issued.
(7) Before exercising authority as guardian, the emergency temporary guardian of the property may be required to file a bond in accordance with s. 744.351.
(8) An emergency temporary guardian’s authority and responsibility begins upon issuance of letters of emergency temporary guardianship in accordance with s. 744.345.
(9)(a) An emergency temporary guardian shall file a final report no later than 30 days after the expiration of the emergency temporary guardianship.
(b) A court may not authorize any payment of the emergency temporary guardian’s final fees or the final fees of his or her attorney until the final report is filed.
(c) If an emergency temporary guardian is a guardian for the property, the final report must consist of a verified inventory of the property, as provided in s. 744.365, as of the date the letters of emergency temporary guardianship were issued, a final accounting that gives a full and correct account of the receipts and disbursements of all the property of the ward over which the guardian had control, and a statement of the property of the ward on hand at the end of the emergency temporary guardianship. If the emergency temporary guardian becomes the successor guardian of the property, the final report must satisfy the requirements of the initial guardianship report for the guardian of the property as provided in s. 744.362.
(d) If the emergency temporary guardian is a guardian of the person, the final report must summarize the activities of the temporary guardian with regard to residential placement, medical condition, mental health and rehabilitative services, and the social condition of the ward to the extent of the authority granted to the temporary guardian in the letters of guardianship. If the emergency temporary guardian becomes the successor guardian of the person, the report must satisfy the requirements of the initial report for a guardian of the person as stated in s. 744.362.
(e) A copy of the final report of the emergency temporary guardianship shall be served on the successor guardian and the ward.
History.—s. 19, ch. 89-96; s. 10, ch. 90-271; s. 1070, ch. 97-102; s. 5, ch. 2006-178; s. 6, ch. 2015-83.
744.304 Standby guardianship.—
(1) Upon a petition by the natural guardians or a guardian appointed under s. 744.3021, the court may appoint a standby guardian of the person or property of a minor. The court may also appoint an alternate to the guardian to act if the standby guardian does not serve or ceases to serve after appointment. Notice of a hearing on the petition must be served on the parents, natural or adoptive, and on any guardian currently serving unless the notice is waived in writing by them or waived by the court for good cause shown.
(2) Upon petition of a currently serving guardian, a standby guardian of the person or property of an incapacitated person may be appointed by the court. Notice of the hearing shall be served on the ward’s next of kin.
(3) The standby guardian or alternate shall be empowered to assume the duties of guardianship immediately on the death, removal, or resignation of the guardian of a minor, or on the death or adjudication of incapacity of the last surviving natural guardian of a minor, or upon the death, removal, or resignation of the guardian for an adult. The guardian of the ward’s property may not be empowered to deal with the ward’s property, other than to safeguard it, before issuance of letters of guardianship. If the ward is over the age of 18 years, the court shall conduct a hearing as provided in s. 744.331 before confirming the appointment of the standby guardian, unless the ward has previously been found to be incapacitated.
(4) Within 20 days after assumption of duties as guardian, a standby guardian shall petition for confirmation of appointment. If the court finds the standby guardian to be qualified to serve as guardian under ss. 744.309 and 744.312, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347, shall file a bond, and shall submit to a credit and a criminal history record check as set forth in s. 744.3135, if required. Letters of guardianship must then be issued in the manner provided in s. 744.345.
(5) After the assumption of duties by a standby guardian, the court shall have jurisdiction over the guardian and the ward.
History.—s. 1, ch. 74-106; s. 7, ch. 75-222; s. 1, ch. 77-174; s. 20, ch. 89-96; s. 11, ch. 90-271; s. 1071, ch. 97-102; s. 6, ch. 2006-178.
Note.—Created from former s. 744.72.
744.3045 Preneed guardian.—
(1) A competent adult may name a preneed guardian by making a written declaration that names such guardian to serve in the event of the declarant’s incapacity.
(2) The written declaration must reasonably identify the declarant and preneed guardian and be signed by the declarant in the presence of at least two attesting witnesses present at the same time.
(3) The declarant may file the declaration with the clerk of the court. When a petition for incapacity is filed, the clerk shall produce the declaration.
(4) Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian. The court shall not be bound to appoint the preneed guardian if the preneed guardian is found to be unqualified to serve as guardian.
(5) The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity.
(6) If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that such preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.
(7) Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian pursuant to ss. 744.309 and 744.312, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347 and shall file a bond, if required. Letters of guardianship must then be issued in the manner provided in s. 744.345.
History.—s. 21, ch. 89-96; s. 12, ch. 90-271.
744.3046 Preneed guardian for minor.—
(1) Both parents, natural or adoptive, if living, or the surviving parent, may nominate a preneed guardian of the person or property or both of the parent’s minor child by making a written declaration that names such guardian to serve if the minor’s last surviving parent becomes incapacitated or dies. The declarant or declarants may also name an alternate to the guardian to act if the designated preneed guardian refuses to serve, renounces the appointment, dies, or becomes incapacitated after the death of the last surviving parent of the minor.
(2) The written declaration must reasonably identify the declarant or declarants and the designated preneed guardian and must be signed by the declarant or declarants in the presence of at least two attesting witnesses present at the same time. The written declaration must also provide the following information for each minor child named in such declaration: the full name as it appears on the birth certificate or as ordered by a court, date of birth, and social security number, if any.
(3) The declarant must file the declaration with the clerk of the court. When a petition for incapacity of the last surviving parent or the appointment of a guardian upon the death of the last surviving parent is filed, the clerk shall produce the declaration.
(4) Production of the declaration in a proceeding to determine incapacity of the last surviving parent, or in a proceeding to appoint a guardian upon the death of the last surviving parent, constitutes a rebuttable presumption that the designated preneed guardian is entitled to serve as guardian. The court is not bound to appoint the designated preneed guardian if the designated preneed guardian is found to be unqualified to serve as guardian.
(5) The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity of the last surviving parent or the death of the last surviving parent.
(6) If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that the alternate preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.
(7) Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347 and shall file a bond, if the court requires a bond. Letters of guardianship must then be issued in the manner provided in s. 744.345.
(8) The clerk shall maintain all declarations filed pursuant to this section until:
(a) A petition for incapacity of the last surviving parent is filed or petition for the appointment of a guardian upon the death of the last surviving parent is filed as provided in subsection (3); or
(b) All minor children named in the declaration have reached the age of majority.
The clerk may dispose of such written declaration in accordance with law.
History.—s. 23, ch. 92-200.
744.306 Foreign guardians.—
(1) When the residence of a ward of a foreign guardian is moved to this state, the guardian shall, within 60 days after such change of residence, file the authenticated order of her or his appointment with the clerk of the court in the county where the ward resides. Such order shall be recognized and given full faith and credit in the courts of this state. The guardian and the ward are subject to this chapter.
(2) A guardian appointed in any state, territory, or country may maintain or defend any action in this state as a representative of her or his ward.
(3) Debtors who have received no written demand for payment from a guardian appointed in this state within 60 days after the appointment of a guardian, curator, conservator, or committee in any state, territory, or country other than this state, and whose property in this state is subject to a mortgage or other lien securing the debt held by the foreign guardian, curator, conservator, or committee, may pay the debt to the foreign guardian, curator, conservator, or committee after the expiration of 60 days from the date of her or his appointment. A satisfaction of the mortgage or lien, executed after the 60 days have expired by the foreign guardian, curator, conservator, or committee, with an authenticated copy of the letters or other evidence of authority of the foreign guardian, curator, conservator, or committee attached, may be recorded in the public records of this state and shall constitute an effective discharge of the mortgage or lien, irrespective of whether the debtor had received written demand before paying the debt.
(4) All persons indebted to a ward, or having possession of personal property belonging to a ward, who have received no written demand for payment of the indebtedness or the delivery of the property from a guardian appointed in this state are authorized to pay the indebtedness or to deliver the personal property to the foreign guardian, curator, conservator, or committee after the expiration of the 60 days from the date of her or his appointment.
History.—s. 1, ch. 74-106; s. 7, ch. 75-222; s. 23, ch. 89-96; s. 1072, ch. 97-102.
Note.—Created from former s. 744.15.
744.307 Foreign guardian may manage the property of nonresident ward.—
(1) A guardian of the property of a nonresident ward, duly appointed by a court of another state, territory, or country, who desires to manage any part or all of the property of the ward located in this state, may file a petition showing his or her appointment, describing the property, stating its estimated value, and showing the indebtedness, if any, existing against the ward in this state, to the best of the guardian’s knowledge and belief.
(2) The guardian shall designate a resident agent as required by the Florida Probate Rules.
(3) The guardian shall file authenticated copies of his or her letters of guardianship or other authority and of his or her bond or other security. The court shall determine if the foreign bond or other security is sufficient to guarantee the faithful management of the ward’s property in this state. The court may require a new guardian’s bond in this state in the amount it deems necessary and conditioned for the proper management and application of the property of the ward coming into the custody of the guardian in this state.
(4) Thereafter, the guardianship shall be governed by the law concerning guardianships.
History.—s. 1, ch. 74-106; s. 7, ch. 75-222; s. 24, ch. 89-96; s. 67, ch. 95-211; s. 1073, ch. 97-102.
Note.—Created from former s. 744.16.
744.308 Resident guardian of the property of nonresident ward.—
(1) The court may appoint a person qualified under s. 744.309 as guardian of a nonresident ward’s property upon the petition of a foreign guardian, next of kin, or creditor of the ward, regardless of whether he or she has a foreign guardian or not.
(2) The petition for the appointment of a guardian for the property of a nonresident ward shall be in writing and shall be prepared in accordance with the requirements of s. 744.334.
(3) If it is alleged that the incapacity is due to mental or physical incapacity, the petition shall be accompanied by an authenticated copy of the adjudication of incapacity from the qualified authorities in the state, territory, or country where the incapacitated person is domiciled and shall state whether the incapacitated person is in the custody of any person or institution and, if so, the name and post office address of the custodian. The adjudication shall constitute prima facie proof of the incapacity.
(4) If the question about the mental or physical incapacity of a nonresident is presented while the nonresident is temporarily residing in this state and he or she is not under an adjudication of incapacity made in some other state, territory, or country, the procedure for the appointment of a guardian of the nonresident’s property shall be the same as though he or she were a resident of this state.
(5) When the ground for the appointment of a guardian is incapacity for which the person has been adjudicated in another state, territory, or country, notice of the hearing shall be served personally or by registered mail on the ward and the ward’s next of kin and legal custodian, if any, at least 20 days before the hearing.
(6) In the appointment of the guardian, the court shall be governed by s. 744.312.
(7) The duties, powers, and liabilities for the custody, control, management, and disposition of the ward’s property and removal, accounting, and discharge shall be governed by the law applicable to guardians of property of resident wards.
History.—s. 1, ch. 74-106; s. 7, ch. 75-222; s. 1, ch. 77-174; s. 25, ch. 89-96; s. 13, ch. 90-271; s. 1074, ch. 97-102.
Note.—Created from former ss. 744.18, 744.19, 744.21, 744.25, 744.26.
744.3085 Guardian advocates.—A circuit court may appoint a guardian advocate, without an adjudication of incapacity, for a person with developmental disabilities if the person lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person, property, or estate, or if the person has voluntarily petitioned for the appointment of a guardian advocate. Unless otherwise specified, the proceeding shall be governed by the Florida Probate Rules. In accordance with the legislative intent of this chapter, courts are encouraged to consider appointing a guardian advocate, when appropriate, as a less restrictive form of guardianship.
History.—s. 11, ch. 2004-260.
PART IV
GUARDIANS
744.309 Who may be appointed guardian of a resident ward.
744.3115 Advance directives for health care.
744.312 Considerations in appointment of guardian.
744.3125 Application for appointment.
744.3135 Credit and criminal investigation.
744.3145 Guardian education requirements.
744.309 Who may be appointed guardian of a resident ward.—
(1) RESIDENT.—
(a) Any resident of this state who is sui juris and is 18 years of age or older is qualified to act as guardian of a ward.
(b) No judge shall act as guardian after this law becomes effective, except when he or she is related to the ward by blood, marriage, or adoption, or has maintained a close relationship with the ward or the ward’s family, and serves without compensation.
(2) NONRESIDENT.—A nonresident of the state may serve as guardian of a resident ward if he or she is:
(a) Related by lineal consanguinity to the ward;
(b) A legally adopted child or adoptive parent of the ward;
(c) A spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone related by lineal consanguinity to any such person; or
(d) The spouse of a person otherwise qualified under this section.
(3) DISQUALIFIED PERSONS.—No person who has been convicted of a felony or who, from any incapacity or illness, is incapable of discharging the duties of a guardian, or who is otherwise unsuitable to perform the duties of a guardian, shall be appointed to act as guardian. Further, no person who has been judicially determined to have committed abuse, abandonment, or neglect against a child as defined in s. 39.01 or s. 984.03(1), (2), and (37), or 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 or similar statute of another jurisdiction, shall be appointed to act as a guardian. Except as provided in subsection (5) or subsection (6), a person who provides substantial services to the proposed ward in a professional or business capacity, or a creditor of the proposed ward, may not be appointed guardian and retain that previous professional or business relationship. A person may not be appointed a guardian if he or she is in the employ of any person, agency, government, or corporation that provides service to the proposed ward in a professional or business capacity, except that a person so employed may be appointed if he or she is the spouse, adult child, parent, or sibling of the proposed ward or the court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the proposed ward’s best interest. The court may not appoint a guardian in any other circumstance in which a conflict of interest may occur.
(4) TRUST COMPANY, STATE BANK OR SAVINGS ASSOCIATION, OR NATIONAL BANK OR FEDERAL SAVINGS AND LOAN ASSOCIATION.—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 this state may act as guardian of the property of the ward.
(5) NONPROFIT CORPORATE GUARDIAN.—A nonprofit corporation organized for religious or charitable purposes and existing under the laws of this state may be appointed guardian for a ward. If the nonprofit corporate guardian charges fees against the assets or property of the ward for its services, the corporation must employ at least one professional guardian.
(6) HEALTH CARE PROVIDER.—A provider of health care services to the ward, whether direct or indirect, may not be appointed the guardian of the ward, unless the court specifically finds that there is no conflict of interest with the ward’s best interests.
(7) FOR-PROFIT CORPORATE GUARDIAN.—A for-profit corporate guardian existing under the laws of this state is qualified to act as guardian of a ward if the entity is qualified to do business in the state, is wholly owned by the person who is the circuit’s public guardian in the circuit where the corporate guardian is appointed, has met the registration requirements of s. 744.2002, and posts and maintains a bond or insurance policy under paragraph (a).
(a) The for-profit corporate guardian must meet one of the following requirements:
1. Post and maintain a blanket fiduciary bond of at least $250,000 with the clerk of the circuit court in the county in which the corporate guardian has its principal place of business. The corporate guardian shall provide proof of the fiduciary bond to the clerks of each additional circuit court in which he or she is serving as a guardian. The bond must cover all wards for whom the corporation has been appointed as a guardian at any given time. The liability of the provider of the bond is limited to the face value of the bond, regardless of the number of wards for whom the corporation is acting as a guardian. The terms of the bond must cover the acts or omissions of each agent or employee of the corporation who has direct contact with the ward or access to the assets of the guardianship. The bond must be payable to the Governor and his or her successors in office and be conditioned on the faithful performance of all duties of a guardian under this chapter. The bond is in lieu of and not in addition to the bond required under s. 744.2003 but is in addition to any bonds required under s. 744.351. The expenses incurred to satisfy the bonding requirements of this section may not be paid with the assets of any ward; or
2. Maintain a liability insurance policy that covers any losses sustained by the guardianship caused by errors, omissions, or any intentional misconduct committed by the corporation’s officers or agents. The policy must cover all wards for whom the corporation is acting as a guardian for losses up to $250,000. The terms of the policy must cover acts or omissions of each agent or employee of the corporation who has direct contact with the ward or access to the assets of the guardianship. The corporate guardian shall provide proof of the policy to the clerk of each circuit court in which he or she is serving as a guardian.
(b) A for-profit corporation appointed as guardian before July 1, 2015, is also qualified to serve as a guardian in the particular guardianships in which the corporation has already been appointed as guardian.
History.—s. 1, ch. 74-106; s. 8, ch. 75-222; s. 4, ch. 79-221; s. 7, ch. 81-27; s. 2, ch. 83-139; s. 26, ch. 89-96; s. 14, ch. 90-271; s. 1, ch. 96-184; s. 5, ch. 96-354; s. 1781, ch. 97-102; s. 48, ch. 98-280; s. 159, ch. 98-403; s. 8, ch. 2000-135; s. 110, ch. 2000-349; s. 4, ch. 2002-195; s. 31, ch. 2004-267; s. 53, ch. 2010-114; s. 7, ch. 2015-83; s. 36, ch. 2016-40.
Note.—Created from former s. 744.27.
744.3115 Advance directives for health care.—In each proceeding in which a guardian is appointed under this chapter, the court shall determine whether the ward, prior to incapacity, has executed any valid advance directive under chapter 765. If any advance directive exists, the court shall specify in its order and letters of guardianship what authority, if any, the guardian shall exercise over the ward with regard to health care decisions and what authority, if any, the surrogate shall continue to exercise over the ward with regard to health care decisions. Pursuant to the grounds listed in s. 765.105, the court, upon its own motion, may, with notice to the surrogate and any other appropriate parties, modify or revoke the authority of the surrogate to make health care decisions for the ward. Any order revoking or modifying the authority of the surrogate must be supported by specific written findings of fact. If the court order provides that the guardian is responsible for making health care decisions for the ward, the guardian shall assume the responsibilities of the surrogate which are provided in s. 765.205. For purposes of this section, the term “health care decision” has the same meaning as in s. 765.101.
History.—s. 6, ch. 92-199; s. 1, ch. 94-183; s. 7, ch. 2006-178; s. 8, ch. 2015-83.
744.312 Considerations in appointment of guardian.—
(1) If the person designated is qualified to serve pursuant to s. 744.309, the court shall appoint any standby guardian or preneed guardian, unless the court determines that appointing such person is contrary to the best interests of the ward.
(2) If a guardian cannot be appointed under subsection (1), the court may appoint any person who is fit and proper and qualified to act as guardian, whether related to the ward or not. The court shall give preference to the appointment of a person who:
(a) Is related by blood or marriage to the ward;
(b) Has educational, professional, or business experience relevant to the nature of the services sought to be provided;
(c) Has the capacity to manage the financial resources involved; or
(d) Has the ability to meet the requirements of the law and the unique needs of the individual case.
(3) The court shall also:
(a) Consider the wishes expressed by an incapacitated person as to who shall be appointed guardian.
(b) Consider the preference of a minor who is age 14 or over as to who should be appointed guardian.
(c) Consider any person designated as guardian in any will in which the ward is a beneficiary.
(d) Consider the wishes of the ward’s next of kin, when the ward cannot express a preference.
(4) Except when a standby guardian or a preneed guardian is appointed by the court:
(a) 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. The findings must reference each of the factors listed in subsections (2) and (3).
(b) An emergency temporary guardian who is a 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. The court may waive the limitations of this paragraph 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. The court must make specific findings of fact that justify waiving the limitations of this paragraph.
(5) The court may not give preference to the appointment of a person under subsection (2) based solely on the fact that such person was appointed by the court to serve as an emergency temporary guardian.
History.—s. 1, ch. 74-106; s. 12, ch. 75-222; s. 1, ch. 77-174; s. 5, ch. 79-221; s. 27, ch. 89-96; s. 15, ch. 90-271; s. 9, ch. 2015-83.
Note.—Created from former s. 744.35.
744.3125 Application for appointment.—
(1) Every prospective guardian must complete an application for appointment as guardian. The application must list the person’s qualifications to serve as a guardian.
(2) A person may not be appointed a guardian unless the person discloses in the application form the names of all wards for whom the person is currently acting as a guardian. The application must identify each ward by court file number and circuit court in which the case is pending and must state whether the person is acting as the limited or plenary guardian of the person or property or both.
(3) This section does not apply to corporate guardians other than nonprofit corporate guardians or to public guardians.
(4) Nonprofit corporate guardians must file quarterly with the clerk of court disclosure statements that contain the information required under subsections (1) and (2), rather than filing a guardianship application with each petition to be appointed guardian.
History.—s. 29, ch. 89-96; s. 16, ch. 90-271; s. 1075, ch. 97-102.
744.3135 Credit and criminal investigation.—
(1) The court shall require all guardians who are seeking appointment by the court, other than a corporate guardian as described in s. 744.309(4), and all employees of a professional guardian, other than a corporate guardian as described in s. 744.309(4), who have a fiduciary responsibility to a ward, to submit, at their own expense, to a credit history investigation and to undergo level 2 background screening as required under s. 435.04. On petition by any interested person or on the court’s own motion, the court may waive the requirement of a credit history investigation or a level 2 background screening, or both. If appointed, a nonprofessional guardian may petition the court for reimbursement of the reasonable expenses of the credit history investigation and background screening. The court must consider the results of any investigation before appointing a guardian. At any time, the court may require a guardian or the guardian’s employees to submit to an investigation of the person’s credit history and complete a level 1 or level 2 background screening pursuant to s. 435.03. The court shall consider the results of any investigation in determining whether to reappoint a guardian. The clerk of the court shall maintain a file on each guardian appointed by the court and retain in the file documentation of the result of any investigation conducted under this section. A professional guardian shall pay the clerk of the court a fee of up to $7.50 for handling and processing professional guardian files.
(2) For nonprofessional guardians, the court shall accept the satisfactory completion of a criminal history record check as described in this subsection. A nonprofessional guardian satisfies the requirements of this section by undergoing a state and national criminal history record check using fingerprints. Any nonprofessional guardian who is so required shall have his or her fingerprints taken and forward them along with the necessary fee to the Department of Law Enforcement for processing. The results of the fingerprint criminal history record check shall be forwarded to the clerk of the court, who shall maintain the results in the nonprofessional guardian’s file and make the results available to the court.
(3) For professional guardians, the court and the Office of Public and Professional Guardians shall accept the satisfactory completion of a criminal history record check by any method described in this subsection. A professional guardian satisfies the requirements of this section by undergoing an electronic fingerprint criminal history record check. A professional guardian may use any electronic fingerprinting equipment used for criminal history record checks. By October 1, 2016, the Office of Public and Professional Guardians shall adopt a rule detailing the acceptable methods for completing an electronic fingerprint criminal history record check under this section. The professional guardian shall pay the actual costs incurred by the Federal Bureau of Investigation and the Department of Law Enforcement for the criminal history record check. The entity completing the record check must immediately send the results of the criminal history record check to the clerk of the court and the Office of Public and Professional Guardians. The clerk of the court shall maintain the results in the professional guardian’s file and shall make the results available to the court.
(4)(a) A professional guardian, and each employee of a professional guardian who has a fiduciary responsibility to a ward, must complete, at his or her own expense, a level 2 background screening as set forth in s. 435.04 before and at least once every 5 years after the date the guardian is registered. A professional guardian, and each employee of a professional guardian who has a fiduciary responsibility to a ward, must complete, at his or her own expense, a level 1 background screening as set forth in s. 435.03 at least once every 2 years after the date the guardian is registered. However, a professional guardian is not required to resubmit fingerprints for a criminal history record check if he or she has been screened using electronic fingerprinting equipment and the fingerprints are retained by the Department of Law Enforcement in order to notify the clerk of the court of any crime charged against the person in this state or elsewhere, as appropriate.
(b) All fingerprints electronically submitted to the Department of Law Enforcement under this section shall be retained by the Department of Law Enforcement in a manner provided by rule and entered in the statewide automated biometric identification system authorized by s. 943.05(2)(b). The fingerprints shall thereafter be available for all purposes and uses authorized for arrest fingerprints entered in the Criminal Justice Information Program under s. 943.051.
(c) The Department of Law Enforcement shall search all arrest fingerprints received under s. 943.051 against the fingerprints retained in the statewide automated biometric identification system under paragraph (b). Any arrest record that is identified with the fingerprints of a person described in this paragraph must be reported to the clerk of court. The clerk of court must forward any arrest record received for a professional guardian to the Office of Public and Professional Guardians within 5 days. Each professional guardian who elects to submit fingerprint information electronically shall participate in this search process by paying an annual fee to the Office of Public and Professional Guardians of the Department of Elderly Affairs and by informing the clerk of court and the Office of Public and Professional Guardians of any change in the status of his or her guardianship appointment. The amount of the annual fee to be imposed for performing these searches and the procedures for the retention of professional guardian fingerprints and the dissemination of search results shall be established by rule of the Department of Law Enforcement. At least once every 5 years, the Office of Public and Professional Guardians must request that the Department of Law Enforcement forward the fingerprints maintained under this section to the Federal Bureau of Investigation.
(5)(a) A professional guardian, and each employee of a professional guardian who has a fiduciary responsibility to a ward, must complete, at his or her own expense, an investigation of his or her credit history before and at least once every 2 years after the date of the guardian’s registration with the Office of Public and Professional Guardians.
(b) By October 1, 2016, the Office of Public and Professional Guardians shall adopt a rule detailing the acceptable methods for completing a credit investigation under this section. If appropriate, the Office of Public and Professional Guardians may administer credit investigations. If the office chooses to administer the credit investigation, the office may adopt a rule setting a fee, not to exceed $25, to reimburse the costs associated with the administration of a credit investigation.
(6) The Office of Public and Professional Guardians may inspect at any time the results of any credit or criminal history record check of a public or professional guardian conducted under this section. The office shall maintain copies of the credit or criminal history record check results in the guardian’s registration file. If the results of a credit or criminal investigation of a public or professional guardian have not been forwarded to the Office of Public and Professional Guardians by the investigating agency, the clerk of the court shall forward copies of the results of the investigations to the office upon receiving them.
(7) The requirements of this section do not apply to a professional guardian, or to the employees of a professional guardian, that is 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 this state.
History.—s. 30, ch. 89-96; s. 1076, ch. 97-102; s. 2, ch. 97-161; s. 10, ch. 99-277; s. 5, ch. 2002-195; s. 10, ch. 2003-57; s. 114, ch. 2003-402; s. 12, ch. 2004-260; s. 22, ch. 2004-267; s. 8, ch. 2006-178; s. 1, ch. 2007-127; s. 58, ch. 2013-116; s. 2, ch. 2014-124; s. 27, ch. 2016-40.
744.3145 Guardian education requirements.—
(1) Each ward is entitled to a guardian competent to perform the duties of a guardian necessary to protect the interests of the ward.
(2) Each person appointed by the court to be a guardian, other than a parent who is the guardian of the property of a minor child, must receive a minimum of 8 hours of instruction and training which covers:
(a) The legal duties and responsibilities of the guardian;
(b) The rights of the ward;
(c) The availability of local resources to aid the ward; and
(d) The preparation of habilitation plans and annual guardianship reports, including financial accounting for the ward’s property.
(3) Each person appointed by the court to be the guardian of the property of his or her minor child must receive a minimum of 4 hours of instruction and training that covers:
(a) The legal duties and responsibilities of the guardian of the property;
(b) The preparation of the initial inventory and annual guardianship accountings for the ward’s property; and
(c) Use of guardianship assets.
(4) Each person appointed by the court to be a guardian must complete the required number of hours of instruction and education within 4 months after his or her appointment as guardian. The instruction and education must be completed through a course approved by the chief judge of the circuit court and taught by a court-approved organization. Court-approved organizations may include, but are not limited to, community or junior colleges, guardianship organizations, and the local bar association or The Florida Bar.
(5) Expenses incurred by the guardian to satisfy the education requirement may be paid from the ward’s estate, unless the court directs that such expenses be paid by the guardian individually.
(6) The court may, in its discretion, waive some or all of the requirements of this section or impose additional requirements. The court shall make its decision on a case-by-case basis and, in making its decision, shall consider the experience and education of the guardian, the duties assigned to the guardian, and the needs of the ward.
(7) The provisions of this section do not apply to professional guardians.
History.—s. 31, ch. 89-96; s. 17, ch. 90-271; s. 1077, ch. 97-102; s. 3, ch. 97-161; s. 11, ch. 2003-57; s. 9, ch. 2006-178.
PART V
ADJUDICATION OF INCAPACITY AND APPOINTMENT OF GUARDIANS
744.3201 Petition to determine incapacity.
744.3203 Suspension of power of attorney before incapacity determination.
744.3215 Rights of persons determined incapacitated.
744.331 Procedures to determine incapacity.
744.334 Petition for appointment of guardian or professional guardian; contents.
744.3371 Notice of petition for appointment of guardian and hearing.
744.341 Voluntary guardianship.
744.342 Minors; guardianship.
744.345 Letters of guardianship.
744.347 Oath of guardian.
744.351 Bond of guardian.
744.354 Validity of bond.
744.357 Liability of surety.
744.358 Liability of a guardian.
744.359 Abuse, neglect, or exploitation by a guardian.
744.3201 Petition to determine incapacity.—
(1) A petition to determine incapacity of a person may be executed by an adult person.
(2) The petition must be verified and must:
(a) State the name, age, and present address of the petitioner and his or her relationship to the alleged incapacitated person;
(b) State the name, age, county of residence, and present address of the alleged incapacitated person;
(c) Specify the primary language spoken by the alleged incapacitated person, if known;
(d) Allege that the petitioner believes the alleged incapacitated person to be incapacitated and specify the factual information on which such belief is based and the names and addresses of all persons known to the petitioner who have knowledge of such facts through personal observations;
(e) State the name and address of the alleged incapacitated person’s attending or family physician, if known;
(f) State which rights enumerated in s. 744.3215 the alleged incapacitated person is incapable of exercising, to the best of petitioner’s knowledge. If the petitioner has insufficient experience to make such judgments, the petition must so state; and
(g) State the names, relationships, and addresses of the next of kin of the alleged incapacitated person, so far as are known, specifying the dates of birth of any who are minors.
(3) A copy of any petition for appointment of guardian or emergency temporary guardian, if applicable, shall be filed with the petition to determine incapacity.
History.—s. 33, ch. 89-96; s. 18, ch. 90-271; s. 22, ch. 95-401; s. 1078, ch. 97-102.
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 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.
(2) The motion must:
(a) Identify one or more of the grounds in subsection (1);
(b) Include specific statements of fact showing that grounds exist to justify the relief sought; and
(c) Include the following statement: “Under penalties of perjury, I declare that I have read the foregoing motion and that the facts stated in it are true to the best of my knowledge and belief,” followed by the signature of the petitioner.
(3) Upon the filing of a response to the motion by the agent under the power of attorney, the court 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. 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.
(4) In addition to any other remedy authorized by law, a court may award reasonable attorney fees and costs to an agent who successfully challenges the suspension of the power of attorney if the petitioner’s motion was made in bad faith.
(5) The suspension of authority granted to persons other than a parent, spouse, child, or grandchild shall be as provided in s. 709.2109.
History.—s. 10, ch. 2015-83.
744.3215 Rights of persons determined incapacitated.—
(1) A person who has been determined to be incapacitated retains the right:
(a) To have an annual review of the guardianship report and plan.
(b) To have continuing review of the need for restriction of his or her rights.
(c) To be restored to capacity at the earliest possible time.
(d) To be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation.
(e) To have a qualified guardian.
(f) To remain as independent as possible, including having his or her preference as to place and standard of living honored, either as he or she expressed or demonstrated his or her preference prior to the determination of his or her incapacity or as he or she currently expresses his or her preference, insofar as such request is reasonable.
(g) To be properly educated.
(h) To receive prudent financial management for his or her property and to be informed how his or her property is being managed, if he or she has lost the right to manage property.
(i) To receive services and rehabilitation necessary to maximize the quality of life.
(j) To be free from discrimination because of his or her incapacity.
(k) To have access to the courts.
(l) To counsel.
(m) To receive visitors and communicate with others.
(n) To notice of all proceedings related to determination of capacity and guardianship, unless the court finds the incapacitated person lacks the ability to comprehend the notice.
(o) To privacy.
(2) Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right:
(a) To marry. If the right to enter into a contract has been removed, the right to marry is subject to court approval.
(b) To vote.
(c) To personally apply for government benefits.
(d) To have a driver license.
(e) To travel.
(f) To seek or retain employment.
(3) Rights that may be removed from a person by an order determining incapacity and which may be delegated to the guardian include the right:
(a) To contract.
(b) To sue and defend lawsuits.
(c) To apply for government benefits.
(d) To manage property or to make any gift or disposition of property.
(e) To determine his or her residence.
(f) To consent to medical and mental health treatment.
(g) To make decisions about his or her social environment or other social aspects of his or her life.
(4) Without first obtaining specific authority from the court, as described in s. 744.3725, a guardian may not:
(a) Commit the ward to a facility, institution, or licensed service provider without formal placement proceeding, pursuant to chapter 393, chapter 394, or chapter 397.
(b) Consent on behalf of the ward to the performance on the ward of any experimental biomedical or behavioral procedure or to the participation by the ward in any biomedical or behavioral experiment. The court may permit such performance or participation only if:
1. It is of direct benefit to, and is intended to preserve the life of or prevent serious impairment to the mental or physical health of the ward; or
2. It is intended to assist the ward to develop or regain his or her abilities.
(c) Initiate a petition for dissolution of marriage for the ward.
(d) Consent on behalf of the ward to termination of the ward’s parental rights.
(e) Consent on behalf of the ward to the performance of a sterilization or abortion procedure on the ward.
History.—s. 34, ch. 89-96; s. 19, ch. 90-271; s. 36, ch. 93-39; s. 13, ch. 94-183; s. 44, ch. 96-169; s. 6, ch. 96-354; s. 1782, ch. 97-102; s. 10, ch. 2006-178; s. 5, ch. 2017-16.
744.331 Procedures to determine incapacity.—
(1) NOTICE OF PETITION TO DETERMINE INCAPACITY.—Notice of the filing of a petition to determine incapacity and a petition for the appointment of a guardian if any and copies of the petitions must be served on and read to the alleged incapacitated person. The notice and copies of the petitions must also be given to the attorney for the alleged incapacitated person, and served upon all next of kin identified in the petition. The notice must state the time and place of the hearing to inquire into the capacity of the alleged incapacitated person and that an attorney has been appointed to represent the person and that, if she or he is determined to be incapable of exercising certain rights, a guardian will be appointed to exercise those rights on her or his behalf.
(2) ATTORNEY FOR THE ALLEGED INCAPACITATED PERSON.—
(a) When a court appoints an attorney for an alleged incapacitated person, the court must appoint the office of criminal conflict and civil regional counsel or a private attorney as prescribed in s. 27.511(6). A private attorney must be one who is included in the attorney registry compiled pursuant to s. 27.40. Appointments of private attorneys must be made on a rotating basis, taking into consideration conflicts arising under this chapter.
(b) The court shall appoint an attorney for each person alleged to be incapacitated in all cases involving a petition for adjudication of incapacity. The alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court.
(c) Any attorney representing an alleged incapacitated person may not serve as guardian of the alleged incapacitated person or as counsel for the guardian of the alleged incapacitated person or the petitioner.
(d) Effective January 1, 2007, an attorney seeking to be appointed by a court for incapacity and guardianship proceedings must have completed a minimum of 8 hours of education in guardianship. A court may waive the initial training requirement for an attorney who has served as a court-appointed attorney in incapacity proceedings or as an attorney of record for guardians for not less than 3 years. The education requirement of this paragraph does not apply to the office of criminal conflict and civil regional counsel until July 1, 2008.
(3) EXAMINING COMMITTEE.—
(a) Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other 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. One of three members of the committee must have knowledge of the type of incapacity alleged in the petition. Unless good cause is shown, the attending or family physician may not be appointed to the committee. If the attending or family physician is available for consultation, the committee must consult with the physician. Members of the examining committee may not be related to or associated with one another, with the petitioner, with counsel for the petitioner or the proposed guardian, or with the person alleged to be totally or partially incapacitated. A member may not be employed by any private or governmental agency that has custody of, or furnishes, services or subsidies, directly or indirectly, to the person or the family of the person alleged to be incapacitated or for whom a guardianship is sought. A petitioner may not serve as a member of the examining committee. Members of the examining committee must be able to communicate, either directly or through an interpreter, in the language that the alleged incapacitated person speaks or to communicate in a medium understandable to the alleged incapacitated person if she or he is able to communicate. The clerk of the court shall send notice of the appointment to each person appointed no later than 3 days after the court’s appointment.
(b) A person who has been appointed to serve as a member of an examining committee to examine an alleged incapacitated person may not thereafter be appointed as a guardian for the person who was the subject of the examination.
(c) Each person appointed to an examining committee must file an affidavit with the court stating that he or she has completed the required courses or will do so no later than 4 months after his or her initial appointment. Each year, the chief judge of the circuit must prepare a list of persons qualified to be members of an examining committee.
(d) A member of an examining committee must complete a minimum of 4 hours of initial training. The person must complete 2 hours of continuing education during each 2-year period after the initial training. The initial training and continuing education program must be developed under the supervision of the Office of Public and Professional Guardians, in consultation with the Florida Conference of Circuit Court Judges; the Elder Law and the Real Property, Probate and Trust Law sections of The Florida Bar; and the Florida State Guardianship Association. The court may waive the initial training requirement for a person who has served for not less than 5 years on examining committees. If a person wishes to obtain his or her continuing education on the Internet or by watching a video course, the person must first obtain the approval of the chief judge before taking an Internet or video course.
(e) Each member of the examining committee shall examine the person. Each examining committee member must determine the alleged incapacitated person’s ability to exercise those rights specified in s. 744.3215. In addition to the examination, each examining committee member must have access to, and may consider, previous examinations of the person, including, but not limited to, habilitation plans, school records, and psychological and psychosocial reports voluntarily offered for use by the alleged incapacitated person. Each member of the examining committee must file his or her report with the clerk of the court within 15 days after appointment.
(f) The examination of the alleged incapacitated person must include a comprehensive examination, a report of which shall be filed by each examining committee member as part of his or her written report. The comprehensive examination report should be an essential element, but not necessarily the only element, used in making a capacity and guardianship decision. The comprehensive examination must include, if indicated:
1. A physical examination;
2. A mental health examination; and
3. A functional assessment.
If any of these three aspects of the examination is not indicated or cannot be accomplished for any reason, the written report must explain the reasons for its omission.
(g) Each committee member’s written report must include:
1. To the extent possible, a diagnosis, prognosis, and recommended course of treatment.
2. An evaluation of the alleged incapacitated person’s ability to retain her or his rights, including, without limitation, the rights to marry; vote; contract; manage or dispose of property; have a driver license; determine her or his residence; consent to medical treatment; and make decisions affecting her or his social environment.
3. The results of the comprehensive examination and the committee member’s assessment of information provided by the attending or family physician, if any.
4. A description of any matters with respect to which the person lacks the capacity to exercise rights, the extent of that incapacity, and the factual basis for the determination that the person lacks that capacity.
5. The names of all persons present during the time the committee member conducted his or her examination. If a person other than the person who is the subject of the examination supplies answers posed to the alleged incapacitated person, the report must include the response and the name of the person supplying the answer.
6. The signature of the committee member and the date and time the member conducted his or her examination.
(h) Within 3 days after receipt of each examining committee member’s report, the clerk shall serve the report on the petitioner and the attorney for the alleged incapacitated person by electronic mail delivery or United States mail, and, upon service, shall file a certificate of service in the incapacity proceeding. The petitioner and the attorney for the alleged incapacitated person must be served with all reports at least 10 days before the hearing on the petition, unless the reports are not complete, in which case the petitioner and attorney for the alleged incapacitated person may waive the 10 day requirement and consent to the consideration of the report by the court at the adjudicatory hearing. If such service is not timely effectuated, the petitioner or the alleged incapacitated person may move for a continuance of the hearing.
(i) The petitioner and the alleged incapacitated person may object to the introduction into evidence of all or any portion of the examining committee members’ reports by filing and serving a written objection on the other party no later than 5 days before the adjudicatory hearing. The objection must state the basis upon which the challenge to admissibility is made. If an objection is timely filed and served, the court shall apply the rules of evidence in determining the reports’ admissibility. For good cause shown, the court may extend the time to file and serve the written objection.
(4) DISMISSAL OF PETITION.—If a majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the court shall dismiss the petition.
(5) ADJUDICATORY HEARING.—
(a) Upon appointment of the examining committee, the court shall set the date upon which the petition will be heard. 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.
(b) The alleged incapacitated person must be present at the adjudicatory hearing, unless waived by the alleged incapacitated person or the person’s attorney or unless good cause can be shown for her or his absence. Determination of good cause rests in the sound discretion of the court.
(c) In the adjudicatory hearing on a petition alleging incapacity, the partial or total incapacity of the person must be established by clear and convincing evidence.
(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 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.
(b) When an order determines that a person is incapable of exercising delegable rights, the court must consider and find whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person. A guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person. If the court finds there is not an alternative to guardianship that sufficiently addresses the problems of the incapacitated person, a guardian must be appointed to exercise the incapacitated person’s delegable rights.
(c) In determining that a person is totally incapacitated, the order must contain findings of fact demonstrating that the individual is totally without capacity to care for herself or himself or her or his property.
(d) An order adjudicating a person to be incapacitated constitutes proof of such incapacity until further order of the court.
(e) After the order determining that the person is incapacitated has been filed with the clerk, it must be served on the incapacitated person. The person is deemed incapacitated only to the extent of the findings of the court. The filing of the order is notice of the incapacity. An incapacitated person retains all rights not specifically removed by the court.
(f) Upon the filing of a verified statement by an interested person 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 is invalid; and
2. A reasonable factual basis for that belief,
the trust, trust amendment, or durable power of attorney shall not be deemed to be an alternative to the appointment of a guardian. The appointment of a guardian does not limit the court’s power to determine that certain authority granted by a durable power of attorney is to remain exercisable by the agent.
(7) FEES.—
(a) The examining committee and any attorney appointed under subsection (2) are entitled to reasonable fees to be determined by the court.
(b) The fees awarded under paragraph (a) shall be paid by the guardian from the property of the ward or, if the ward is indigent, by the state. The state shall have a creditor’s claim against the guardianship property for any amounts paid under this section. The state may file its claim within 90 days after the entry of an order awarding attorney ad litem fees. If the state does not file its claim within the 90-day period, the state is thereafter barred from asserting the claim. Upon petition by the state for payment of the claim, the court shall enter an order authorizing immediate payment out of the property of the ward. The state shall keep a record of the payments.
(c) If the petition is dismissed or denied:
1. The fees of the examining committee shall be paid upon court order as expert witness fees under s. 29.004(6).
2. Costs and attorney fees of the proceeding may be assessed against the petitioner if the court finds the petition to have been filed in bad faith. The petitioner shall also reimburse the state courts system for any amounts paid under subparagraph 1. upon such a finding.
History.—ss. 9, 26, ch. 75-222; s. 4, ch. 77-328; s. 1, ch. 78-342; s. 6, ch. 79-221; s. 35, ch. 89-96; s. 20, ch. 90-271; s. 4, ch. 91-303; s. 5, ch. 91-306; s. 7, ch. 96-354; s. 1783, ch. 97-102; s. 76, ch. 2004-265; s. 4, ch. 2006-77; s. 11, ch. 2006-178; s. 44, ch. 2006-217; s. 28, ch. 2007-62; s. 11, ch. 2015-83; s. 33, ch. 2016-40; s. 1, ch. 2017-16.
744.334 Petition for appointment of guardian or professional guardian; contents.—
(1) Every petition for the appointment of a guardian shall be verified by the petitioner and shall contain statements, to the best of petitioner’s knowledge and belief, showing the name, age, residence, and post office address of the alleged incapacitated person or minor; the nature of her or his incapacity, if any; the extent of guardianship desired, either plenary or limited; the residence and post office address of the petitioner; the names and addresses of the next of kin of the incapacitated person or minor, if known to the petitioner; the name of the proposed guardian; the relationship and previous relationship of the proposed guardian to the ward; the nature and value of property subject to the guardianship; and the reasons why this person should be appointed guardian. If a willing and qualified guardian cannot be located, the petition must so state.
(2) The petition for appointment of a professional guardian must comply with the provisions of subsection (1), and must state that the petitioner is a professional guardian.
History.—ss. 11, 26, ch. 75-222; s. 7, ch. 79-221; s. 36, ch. 89-96; s. 21, ch. 90-271; s. 8, ch. 96-354; s. 1784, ch. 97-102.
744.3371 Notice of petition for appointment of guardian and hearing.—
(1) When the petition for appointment of a guardian for an incapacitated person is heard upon the conclusion of the hearing in which the person is determined to be incapacitated, the court shall hear the petition without further notice. If the petition is heard on a later date, reasonable notice of the hearing must be served on the incapacitated person, the person’s attorney, if any, any guardian then serving, the person’s next of kin, and such other interested persons as the court may direct.
(2) When a petition for appointment of a guardian for a minor is filed, formal notice must be served on the minor’s parents. If the petitioner has custody of the minor and the petition alleges that, after diligent search, the parents cannot be found, the parents may be served by informal notice, delivered to their last known address or addresses. When a parent petitions for appointment as guardian for his or her minor child, no notice is necessary unless the other parent is living and does not consent to the appointment.
History.—s. 22, ch. 90-271; s. 1079, ch. 97-102.
744.341 Voluntary guardianship.—
(1) Without adjudication of incapacity, the court shall appoint a guardian of the property of a resident or nonresident person who, though mentally competent, is incapable of the care, custody, and management of his or her estate by reason of age or physical infirmity and who has voluntarily petitioned for the appointment. The petition shall be accompanied by a certificate of a licensed physician specifying that he or she has examined the petitioner and that the petitioner is competent to understand the nature of the guardianship and his or her delegation of authority. Notice of hearing on any petition for appointment and for authority to act shall be given to the petitioner and to any person to whom the petitioner requests that notice be given. Such request may be made in the petition for appointment of guardian or in a subsequent written request for notice signed by the petitioner.
(2) If requested in the petition for appointment of a guardian brought under this section, the court may direct the guardian to take possession of less than all of the ward’s property and of the rents, income, issues, and profits from it. In such case, the court shall specify in its order the property to be included in the guardianship estate, and the duties and responsibilities of the guardian appointed under this section will extend only to such property.
(3) Unless the voluntary guardianship is limited pursuant to subsection (2), any guardian appointed under this section has the same duties and responsibilities as are provided by law for plenary guardians of the property, generally.
(4) A guardian must include in the annual report filed with the court a certificate from a licensed physician who examined the ward not more than 90 days before the annual report is filed with the court. The certificate must certify that the ward is competent to understand the nature of the guardianship and of the ward’s authority to delegate powers to the voluntary guardian.
(5) A voluntary guardianship may be terminated by the ward by filing a notice with the court that the voluntary guardianship is terminated. A copy of the notice must be served on all interested persons.
History.—ss. 11, 26, ch. 75-222; s. 9, ch. 79-221; s. 4, ch. 84-31; s. 38, ch. 89-96; s. 23, ch. 90-271; s. 1080, ch. 97-102; s. 12, ch. 2006-178.
744.342 Minors; guardianship.—Upon petition, the court may appoint a guardian for a minor without appointing an examining committee or conducting an adjudicatory hearing pursuant to s. 744.331.
History.—s. 71, ch. 90-271.
744.345 Letters of guardianship.—Letters of guardianship shall be issued to the guardian and shall specify whether the guardianship pertains to the person, or the property, or both, of the ward. The letters must state whether the guardianship is plenary or limited, and, if limited, the letters must state the powers and duties of the guardian. The letters shall state whether or not and to what extent the guardian is authorized to act on behalf of the ward with regard to any advance directive previously executed by the ward.
History.—s. 1, ch. 74-106; s. 12, ch. 75-222; s. 28, ch. 89-96; s. 25, ch. 90-271; s. 7, ch. 92-199; s. 2, ch. 94-183; s. 13, ch. 2015-83.
Note.—Created from former s. 744.40; former s. 744.313.
744.347 Oath of guardian.—Before exercising his or her authority as guardian, every guardian shall take an oath that he or she will faithfully perform his or her duties as guardian. This oath is not jurisdictional.
History.—s. 1, ch. 74-106; ss. 19, 26, ch. 75-222; s. 40, ch. 89-96; s. 1082, ch. 97-102.
Note.—Created from former s. 744.36.
744.351 Bond of guardian.—
(1) Before exercising his or her authority as guardian, every person appointed a guardian of the property of a ward in this state shall file a bond with surety as prescribed in s. 45.011 to be approved by the clerk. The bond shall be payable to the Governor of the state and the Governor’s successors in office, conditioned on the faithful performance of all duties by the guardian. In form the bond shall be joint and several. When the petitioner or guardian presents compelling reasons, the court may waive a bond or require the use of a designated financial institution as defined in s. 655.005(1).
(2) When the sureties on a bond are natural persons, the guardian shall be required to file with the annual guardianship report proof satisfactory to the court that the sureties are alive and solvent.
(3) The penal sum of a guardian’s bond shall be fixed by the court, and it must be in an amount not less than the full amount of the cash on hand and on deposit belonging to the ward and subject to the control of the guardian, plus the value of the notes and bonds owned by the ward that are payable to bearer, and plus the value of all other intangible personal property, in whatever form, owned by the ward which has a market value which readily can be fixed and which intangible personal property readily can be traded for cash or its equivalent.
(4) For good cause, the court may require, or increase or reduce the amount of, bond or change or release the surety.
(5) Financial institutions as defined in s. 744.309(4), other than a trust company operating under chapter 662 which is not a licensed family trust company or foreign licensed family trust company, and public guardians authorized by law to be guardians are not required to file bonds.
(6) When it is expedient in the judgment of any court having jurisdiction of any guardianship property, because the size of the bond required of the guardian is burdensome, or for other cause, the court may order, in lieu of a bond or in addition to a lesser bond, that the guardian place all or part of the property of the ward in a designated financial institution under the same conditions and limitations as are contained in s. 69.031. A designated financial institution shall also include a dealer, as defined in s. 517.021(6), if the dealer is a member of the Security Investment Protection Corporation and is doing business in the state.
History.—s. 1, ch. 74-106; ss. 19, 26, ch. 75-222; s. 1, ch. 77-174; s. 2, ch. 78-342; s. 2, ch. 86-120; s. 41, ch. 89-96; s. 26, ch. 90-271; s. 30, ch. 95-401; s. 9, ch. 96-354; s. 1785, ch. 97-102; s. 39, ch. 2014-97.
Note.—Created from former s. 744.38.
744.354 Validity of bond.—No bond executed by any guardian shall be invalid because of an informality in it or because of an informality or illegality in the appointment of the guardian. The bond shall have the same force and effect as if the bond had been executed in proper form and the appointment had been legally made.
History.—s. 1, ch. 74-106; ss. 19, 26, ch. 75-222; s. 42, ch. 89-96.
Note.—Created from former s. 744.42.
744.357 Liability of surety.—No surety for a guardian shall be charged beyond the property of the ward.
History.—s. 1, ch. 74-106; ss. 19, 26, ch. 75-222; s. 43, ch. 89-96; s. 27, ch. 90-271.
Note.—Created from former s. 744.43.
744.358 Liability of a guardian.—
(1) A guardian is not liable, solely because of the guardianship, for the debts, contracts, or torts of her or his ward.
(2) In dealing with the ward’s property, a guardian is subject to the standards set forth in s. 518.11.
History.—s. 44, ch. 89-96; s. 28, ch. 90-271; s. 1083, ch. 97-102.
744.359 Abuse, neglect, or exploitation by a guardian.—
(1) A guardian may not abuse, neglect, or exploit a ward.
(2) A guardian has committed exploitation when the guardian:
(a) Commits fraud in obtaining appointment as a guardian;
(b) Abuses his or her powers; or
(c) Wastes, embezzles, or intentionally mismanages the assets of the ward.
(3) A person who believes that a guardian is abusing, neglecting, or exploiting a ward shall report the incident to the central abuse hotline of the Department of Children and Families.
(4) This section shall be interpreted in conformity with s. 825.103.
History.—s. 14, ch. 2015-83.
PART VI
POWERS AND DUTIES
744.361 Powers and duties of guardian.
744.362 Initial guardianship report.
744.363 Initial guardianship plan.
744.365 Verified inventory.
744.367 Duty to file annual guardianship report.
744.3675 Annual guardianship plan.
744.3678 Annual accounting.
744.3679 Simplified accounting procedures in certain cases.
744.368 Responsibilities of the clerk of the circuit court.
744.3685 Order requiring guardianship report; contempt.
744.369 Judicial review of guardianship reports.
744.3701 Confidentiality.
744.371 Relief to be granted.
744.3715 Petition for interim judicial review.
744.372 Judicial review of guardianships.
744.3725 Procedure for extraordinary authority.
744.373 Production of property.
744.3735 Annual appearance of the guardian.
744.374 Payments to guardian.
744.381 Appraisals.
744.384 Subsequently discovered or acquired property.
744.387 Settlement of claims.
744.391 Actions by and against guardian or ward.
744.394 Suspension of statutes of limitations in favor of guardian.
744.397 Application of income of property of ward.
744.421 Petition for support of ward’s dependents.
744.441 Powers of guardian upon court approval.
744.442 Delegation of authority.
744.444 Power of guardian without court approval.
744.446 Conflicts of interest; prohibited activities; court approval; breach of fiduciary duty.
744.447 Petition for authorization to act.
744.451 Order.
744.454 Guardian forbidden to borrow or purchase; exceptions.
744.457 Conveyance of various property rights by guardians of the property.
744.461 Purchasers and lenders protected.
744.462 Determination regarding alternatives to guardianship.
744.361 Powers and duties of guardian.—
(1) The guardian of an incapacitated person is a fiduciary and may exercise only those rights that have been removed from the ward and delegated to the guardian. The guardian of a minor shall exercise the powers of a plenary guardian.
(2) The guardian shall act within the scope of the authority granted by the court and as provided by law.
(3) The guardian shall act in good faith.
(4) A guardian may not act in a manner that is contrary to the ward’s best interests under the circumstances.
(5) A guardian who has special skills or expertise, or is appointed in reliance upon the guardian’s representation that the guardian has special skills or expertise, shall use those special skills or expertise when acting on behalf of the ward.
(6) The guardian shall file an initial guardianship report in accordance with s. 744.362.
(7) The guardian shall file a guardianship report annually in accordance with s. 744.367.
(8) The guardian of the person shall implement the guardianship plan.
(9) When two or more guardians have been appointed, the guardians shall consult with each other.
(10) A guardian who is given authority over any property of the ward shall:
(a) Protect and preserve the property and invest it prudently as provided in chapter 518, apply it as provided in s. 744.397, and keep clear, distinct, and accurate records of the administration of the ward’s property.
(b) Perform all other duties required of him or her by law.
(c) At the termination of the guardianship, deliver the property of the ward to the person lawfully entitled to it.
(11) The guardian shall observe the standards in dealing with the guardianship property that would be observed by a prudent person dealing with the property of another.
(12) The guardian, if authorized by the court, shall 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. All of the property and the rents, income, issues, and profits from it are assets in the hands of the guardian for the payment of debts, taxes, claims, charges, and expenses of the guardianship and for the care, support, maintenance, and education of the ward or the ward’s dependents, as provided for under the terms of the guardianship plan or by law.
(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:
(a) Consider the expressed desires of the ward as known by the guardian when making decisions that affect the ward.
(b) Allow the ward to maintain contact with family and friends unless the guardian believes that such contact may cause harm to the ward.
(c) Not restrict the physical liberty of the ward more than reasonably necessary to protect the ward or another person from serious physical injury, illness, or disease.
(d) Assist the ward in developing or regaining capacity, if medically possible.
(e) Notify the court if the guardian believes that the ward has regained capacity and that one or more of the rights that have been removed should be restored to the ward.
(f) To the extent applicable, make provision for the medical, mental, rehabilitative, or personal care services for the welfare of the ward.
(g) To the extent applicable, acquire a clear understanding of the risks and benefits of a recommended course of health care treatment before making a health care decision.
(h) Evaluate the ward’s medical and health care options, financial resources, and desires when making residential decisions that are best suited for the current needs of the ward.
(i) Advocate on behalf of the ward in institutional and other residential settings and regarding access to home and community-based services.
(j) When not inconsistent with the person’s goals, needs, and preferences, acquire an understanding of the available residential options and give priority to home and other community-based services and settings.
(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:
(a) The ward’s physical appearance and condition.
(b) The appropriateness of the ward’s current living situation.
(c) The need for any additional services and the necessity for continuation of existing services, taking into consideration all aspects of social, psychological, educational, direct service, health, and personal care needs.
(d) The nature and extent of visitation 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.
History.—s. 1, ch. 74-106; ss. 6, 26, ch. 75-222; s. 45, ch. 89-96; s. 29, ch. 90-271; s. 1084, ch. 97-102; s. 13, ch. 2006-178; s. 45, ch. 2006-217; s. 15, ch. 2015-83.
Note.—Created from former ss. 744.48, 744.49.
744.362 Initial guardianship report.—
(1) Each guardian shall file with the court an initial guardianship report within 60 days after her or his letters of guardianship are signed. The initial guardianship report for a guardian of the property must consist of a verified inventory. The initial report for a guardian of the person must consist of an initial guardianship plan. The initial report shall be served on the ward, unless the ward is a minor under the age of 14 years or is totally incapacitated, and the attorney for the ward. Either the ward or the ward’s attorney may request a hearing concerning the adequacy of the report.
(2) Review of the initial guardianship report and representation of the ward during an objection thereto, if any, shall be the appointed attorney’s final official action on behalf of the ward. Thereafter, the court-appointed attorney is no longer obligated to represent the ward.
History.—s. 46, ch. 89-96; s. 30, ch. 90-271; s. 24, ch. 92-200; s. 23, ch. 95-401; s. 1085, ch. 97-102.
744.363 Initial guardianship plan.—
(1) The initial guardianship plan shall include the following:
(a) The provision of medical, mental, or personal care services for the welfare of the ward;
(b) The provision of social and personal services for the welfare of the ward;
(c) The place and kind of residential setting best suited for the needs of the ward;
(d) The application of health and accident insurance and any other private or governmental benefits to which the ward may be entitled to meet any part of the costs of medical, mental health, or related services provided to the ward; and
(e) Any physical and mental examinations necessary to determine the ward’s medical and mental health treatment needs.
(2) The initial guardianship plan for an incapacitated person must be based on the recommendations of the examining committee’s examination, as incorporated into the order determining incapacity.
(3) Unless the ward has been found to be totally incapacitated or is a minor under the age of 14 years, the initial guardianship plan must contain an attestation that the guardian has consulted with the ward and, to the extent reasonable, has honored the ward’s wishes consistent with the rights retained by the ward under the plan. To the maximum extent reasonable, the plan must be in accordance with the wishes of the ward.
(4) The guardianship plan may not restrict the physical liberty of the ward more than reasonably necessary to protect the ward or others from serious physical injury, illness, or disease and to provide the ward with medical care and mental health treatment for the ward’s physical and mental health.
(5) An initial guardianship plan continues in effect until it is amended or replaced by the approval of an annual guardianship plan, until the restoration of capacity or death of the ward, or until the ward, if a minor, reaches the age of 18 years. If there are significant changes in the capacity of the ward to meet the essential requirements for his or her health or safety, the guardian may file a petition to modify the guardianship plan and shall serve notice on all persons who received notice of the plan. At the hearing on such petition, the court may modify the guardianship plan and specify the effective date of such amendment.
(6) In exercising his or her powers, the guardian shall recognize any rights retained by the ward.
History.—s. 47, ch. 89-96; s. 31, ch. 90-271; s. 1086, ch. 97-102.
744.365 Verified inventory.—
(1) FILING.—A guardian of the property shall file a verified inventory of the ward’s property.
(2) CONTENTS.—The verified inventory must include the following:
(a) All property of the ward, real and personal, that has come into the guardian’s possession or knowledge, including a statement of all encumbrances, liens, and other secured claims on any item, any claims against the property, any cause of action accruing to the ward, and any trusts of which the ward is a beneficiary.
(b) The location of the real and personal property in sufficient detail so that it may be clearly identified or located.
(c) A description of all sources of income, including, without limitation, social security benefits and pensions.
(3) CASH ASSETS.—Along with the verified inventory, the guardian must file a copy of the most current statement of all of the ward’s cash assets from all institutions where the cash is on deposit.
(4) SAFE-DEPOSIT BOX.—
(a) The initial opening of any safe-deposit box of the ward must be conducted in the presence of an employee of the institution where the box is located. The inventory of the contents of the box also must be conducted in the presence of the employee, who must verify the contents of the box by signing a copy of the inventory. This safe-deposit box inventory shall be filed with the court within 10 days after the box is opened.
(b) The guardian shall provide the ward with a copy of each signed safe-deposit box inventory unless the ward is a minor or has been adjudicated totally incapacitated or unless the order appointing the guardian states otherwise.
(c) Nothing may be removed from the ward’s safe-deposit box without specific court approval.
(5) RECORDS RETENTION.—
(a) The guardian shall maintain substantiating papers and records sufficient to demonstrate the accuracy of the initial inventory for a period of 3 years after her or his discharge. The substantiating papers need not be filed with the court but must be made available for inspection and review at such time and place and before such persons as the court may order.
(b) As part of the substantiating papers, the guardian must identify by name, address, and occupation, the witness or witnesses, if any, who were present during the initial inventory of the ward’s personal property.
(6) AUDIT FEE.—
(a) Where the value of the ward’s property exceeds $25,000, a guardian shall pay from the ward’s property to the clerk of the circuit court a fee of up to $85, upon the filing of the verified inventory, for the auditing of the inventory. Upon petition by the guardian, the court may waive the auditing fee upon a showing of insufficient funds in the ward’s estate. Any guardian unable to pay the auditing fee may petition the court for waiver of the fee. The court may waive the fee after it has reviewed the documentation filed by the guardian in support of the waiver.
(b) An audit fee may not be charged to any ward whose property has a value of less than $25,000.
History.—s. 49, ch. 89-96; s. 32, ch. 90-271; s. 1087, ch. 97-102; s. 115, ch. 2003-402; s. 77, ch. 2004-265; s. 14, ch. 2006-178; s. 40, ch. 2008-111.
744.367 Duty to file annual guardianship report.—
(1) Unless the court requires filing on a calendar-year basis, each guardian of the person shall file with the court an annual guardianship plan within 90 days after the last day of the anniversary month that the letters of guardianship were signed, and the plan must cover the coming fiscal year, ending on the last day in such anniversary month. If the court requires calendar-year filing, the guardianship plan must be filed on or before April 1 of each year. The latest annual guardianship plan approved by the court will remain in effect until the court approves a subsequent plan.
(2) Unless the court requires or authorizes filing on a fiscal-year basis, each guardian of the property shall file with the court an annual accounting on or before April 1 of each year. The annual accounting must cover the preceding calendar year. If the court authorizes or directs filing on a fiscal-year basis, the annual accounting must be filed on or before the first day of the fourth month after the end of the fiscal year.
(3) The annual guardianship report of a guardian of the property must consist of an annual accounting, and the annual report of a guardian of the person must consist of an annual guardianship plan. The annual report shall be served on the ward, unless the ward is a minor or is totally incapacitated, and on the attorney for the ward, if any. The guardian shall provide a copy to any other person as the court may direct.
(4) Unless the ward is a minor or has been determined to be totally incapacitated, the guardian shall review a copy of the annual report with the ward, to the extent possible. Within 30 days after the annual report has been filed, any interested person, including the ward, may file written objections to any element of the report, specifying the nature of the objection.
(5) If the guardian fails to timely file the annual guardianship report, the judge may impose sanctions which may include contempt, removal of the guardian, or other sanctions provided by law in s. 744.3685.
(6) Notwithstanding any other requirement of this section or unless otherwise directed by the court, the guardian of the property may file the first annual accounting on either a fiscal-year or calendar-year basis. Unless the court directs otherwise, the guardian shall notify the court as to the guardian’s filing intention within 30 days from the date the guardian was issued the letter of guardianship. All subsequent annual accountings must be filed on the same accounting period as the first annual accounting unless the court authorizes or directs otherwise. The first accounting period must end within 1 year after the end of the month in which the letters of guardianship were issued to the guardian of the property.
History.—s. 1, ch. 74-106; ss. 6, 26, ch. 75-222; s. 50, ch. 89-96; s. 33, ch. 90-271; s. 25, ch. 92-200; s. 68, ch. 95-211; s. 24, ch. 95-401; s. 10, ch. 96-354; s. 15, ch. 2006-178; s. 16, ch. 2015-83; s. 2, ch. 2017-16.
Note.—Created from former s. 744.482.
744.3675 Annual guardianship plan.—Each guardian of the person must file with the court an annual guardianship plan which updates information about the condition of the ward. The annual plan must specify the current needs of the ward and how those needs are proposed to be met in the coming year.
(1) Each plan for an adult ward must, if applicable, include:
(a) Information concerning the residence of the ward, including:
1. The ward’s address at the time of filing the plan.
2. The name and address of each place where the ward was maintained during the preceding year.
3. The length of stay of the ward at each place.
4. A statement of whether the current residential setting is best suited for the current needs of the ward.
5. Plans for ensuring during the coming year that the ward is in the best residential setting to meet his or her needs.
(b) Information concerning the medical and mental health conditions and treatment and rehabilitation needs of the ward, including:
1. A resume of any professional medical treatment given to the ward during the preceding year.
2. The report of a physician who examined the ward no more than 90 days before the beginning of the applicable reporting period. The report must contain an evaluation of the ward’s condition and a statement of the current level of capacity of the ward.
3. The plan for providing medical, mental health, and rehabilitative services in the coming year.
(c) Information concerning the social condition of the ward, including:
1. The social and personal services currently used by the ward.
2. The social skills of the ward, including a statement of how well the ward communicates and maintains interpersonal relationships.
3. The social needs of the ward.
(2) Each plan filed by the legal guardian of a minor must include:
(a) Information concerning the residence of the minor, including:
1. The minor’s address at the time of filing the plan.
2. The name and address of each place the minor lived during the preceding year.
(b) Information concerning the medical and mental health conditions and treatment and rehabilitation needs of the minor, including:
1. A resume of any professional medical treatment given to the minor during the preceding year.
2. A report from the physician who examined the minor no more than 180 days before the beginning of the applicable reporting period that contains an evaluation of the minor’s physical and mental conditions.
3. The plan for providing medical services in the coming year.
(c) Information concerning the education of the minor, including:
1. A summary of the school progress report.
2. The social development of the minor, including a statement of how well the minor communicates and maintains interpersonal relationships.
3. The social needs of the minor.
(3) Each plan for an adult ward must address the issue of restoration of rights to the ward and include:
(a) A summary of activities during the preceding year that were designed to enhance the capacity of the ward.
(b) A statement of whether the ward can have any rights restored.
(c) A statement of whether restoration of any rights will be sought.
(4) The court, in its discretion, may require reexamination of the ward by a physician at any time.
History.—s. 51, ch. 89-96; s. 34, ch. 90-271; s. 11, ch. 96-354; s. 1786, ch. 97-102; s. 4, ch. 97-161; s. 16, ch. 2006-178.
744.3678 Annual accounting.—
(1) Each guardian of the property must file an annual accounting with the court.
(2) The annual accounting must include:
(a) A full and correct account of the receipts and disbursements of all of the ward’s property over which the guardian has control and a statement of the ward’s property on hand at the end of the accounting period. This paragraph does not apply to any property or any trust of which the ward is a beneficiary but which is not under the control or administration of the guardian.
(b) A copy of the annual or year-end statement of all of the ward’s cash accounts from each of the institutions where the cash is deposited.
(3) The guardian must obtain a receipt, canceled check, or other proof of payment for all expenditures and disbursements made on behalf of the ward. The guardian must preserve all evidence of payment, along with other substantiating papers, for a period of 3 years after his or her discharge. The receipts, proofs of payment, and substantiating papers need not be filed with the court but shall be made available for inspection and review at the time and place and before the persons as the court may order.
(4) The guardian shall pay from the ward’s estate to the clerk of the circuit court a fee based upon the following graduated fee schedule, upon the filing of the annual financial return, for the auditing of the return:
(a) For estates with a value of $25,000 or less the clerk of the court may charge a fee of up to $20.
(b) For estates with a value of more than $25,000 up to and including $100,000 the clerk of the court may charge a fee of up to $85.
(c) For estates with a value of more than $100,000 up to and including $500,000 the clerk of the court may charge a fee of up to $170.
(d) For estates with a value in excess of $500,000 the clerk of the court may charge a fee of up to $250.
Upon petition by the guardian, the court may waive the auditing fee upon a showing of insufficient funds in the ward’s estate. Any guardian unable to pay the auditing fee may petition the court for a waiver of the fee. The court may waive the fee after it has reviewed the documentation filed by the guardian in support of the waiver.
(5) This section does not apply if the court determines that the ward receives income only from social security benefits and the guardian is the ward’s representative payee for the benefits.
History.—s. 52, ch. 89-96; ss. 35, 72, ch. 90-271; s. 1088, ch. 97-102; s. 116, ch. 2003-402; s. 13, ch. 2004-260; s. 78, ch. 2004-265; s. 139, ch. 2005-2; s. 17, ch. 2006-178; s. 41, ch. 2008-111.
744.3679 Simplified accounting procedures in certain cases.—
(1) In a guardianship of property, when all assets of the estate are in designated depositories under s. 69.031 and the only transactions that occur in that account are interest accrual, deposits from a settlement, or financial institution service charges, the guardian may elect to file an accounting consisting of:
(a) The original or a certified copy of the year-end statement of the ward’s account from the financial institution; and
(b) A statement by the guardian under penalty of perjury that the guardian has custody and control of the ward’s property as shown in the year-end statement.
(2) The accounting allowed by subsection (1) is in lieu of the accounting and auditing procedures under s. 744.3678(2). However, any interested party may seek judicial review as provided in s. 744.3685.
(3) The guardian need not be represented by an attorney in order to file the annual accounting allowed by subsection (1).
History.—s. 1, ch. 93-102; s. 18, ch. 2006-178.
744.368 Responsibilities of the clerk of the circuit court.—
(1) In addition to the duty to serve as the custodian of the guardianship files, the clerk shall review each initial and annual guardianship report to ensure that it contains information about the ward addressing, as appropriate:
(a) Physical and mental health care;
(b) Personal and social services;
(c) The residential setting;
(d) The application of insurance, private benefits, and government benefits;
(e) The physical and mental health examinations; and
(f) The initial verified inventory or the annual accounting.
(2) The clerk shall, within 30 days after the date of filing of the initial or annual report of the guardian of the person, complete his or her review of the report.
(3) Within 90 days after the filing of the verified inventory and accountings by a guardian of the property, the clerk shall audit the verified inventory and the accountings. The clerk shall advise the court of the results of the audit.
(4) The clerk shall report to the court when a report is not timely filed.
(5) If the clerk has reason to believe further review is appropriate, the clerk may request and review records and documents that reasonably impact guardianship assets, including, but not limited to, the beginning inventory balance and any fees charged to the guardianship.
(6) If a guardian fails to produce records and documents to the clerk upon request, the clerk may request the court to enter an order pursuant to s. 744.3685(2) by filing an affidavit that identifies the records and documents requested and shows good cause as to why the documents and records requested are needed to complete the audit.
(7) Upon application to the court supported by an affidavit pursuant to subsection (6), the clerk may issue subpoenas to nonparties to compel production of books, papers, and other documentary evidence. Before issuance of a subpoena by affidavit, the clerk must serve notice on the guardian and the ward, unless the ward is a minor or totally incapacitated, of the intent to serve subpoenas to nonparties.
(a) The clerk must attach the affidavit and the proposed subpoena to the notice to the guardian and, if appropriate, to the ward, and must:
1. State the time, place, and method for production of the documents or items, and the name and address of the person who is to produce the documents or items, if known, or, if not known, a general description sufficient to identify the person or the particular class or group to which the person belongs.
2. Include a designation of the items to be produced.
3. State that the person who will be asked to produce the documents or items has the right to object to the production under this section and that the person is not required to surrender the documents or items.
(b) A copy of the notice and proposed subpoena may not be furnished to the person upon whom the subpoena is to be served.
(c) If the guardian or ward serves an objection to production under this subsection within 10 days after service of the notice, the documents or items may not be required to be produced until resolution of the objection. If an objection is not made within 10 days after service of the notice, the clerk may issue the subpoena to the nonparty. The court may shorten the period within which a guardian or ward is required to file an objection upon a showing by the clerk by affidavit that the ward’s property is in imminent danger of being wasted, misappropriated, or lost unless immediate action is taken.
History.—s. 53, ch. 89-96; s. 36, ch. 90-271; s. 1089, ch. 97-102; s. 19, ch. 2006-178; s. 3, ch. 2014-124.
744.3685 Order requiring guardianship report; contempt.—
(1) If a guardian fails to file the guardianship report, the court shall order the guardian to file the report within 15 days after the service of the order upon her or him or show cause why she or he may not be compelled to do so.
(2) If a guardian fails to comply with the submission of records and documents requested by the clerk during the audit, upon a showing of good cause by affidavit of the clerk which shows the reasons the records must be produced, the court may order the guardian to produce the records and documents within a period specified by the court unless the guardian shows good cause as to why the guardian may not be compelled to do so before the deadline specified by the court. The affidavit of the clerk shall be served with the order.
(3) A copy of an order entered pursuant to subsection (1) or subsection (2) shall be served on the guardian or on the guardian’s resident agent. If the guardian fails to comply with the order within the time specified by the order without good cause, the court may cite the guardian for contempt of court and may fine her or him. The fine may not be paid out of the ward’s property.
History.—s. 1, ch. 74-106; ss. 17, 26, ch. 75-222; s. 70, ch. 89-96; s. 37, ch. 90-271; s. 1090, ch. 97-102; s. 4, ch. 2014-124.
Note.—Created from former s. 745.29; former s. 744.431.
744.369 Judicial review of guardianship reports.—
(1) The court shall review the initial guardianship report within 60 days after the filing of the clerk’s report of findings to the court. The court shall review the annual guardianship report within 30 days after the filing of the clerk’s report of findings to the court.
(2) The court may appoint a general or special magistrate to assist the court in its review function. The court may require the general or special magistrate to conduct random field audits.
(3) If an initial or annual report is not timely filed, the court shall order the guardian to file the report or to show cause why the report has not been filed within the prescribed time. Service of the order and subsequent proceedings shall be governed by s. 744.3685.
(4) The court must review the initial and annual guardianship report to determine that the report:
(a) Meets the needs of the ward;
(b) Authorizes the guardian to act only in areas in which an adult ward has been declared incapacitated; and
(c) Conforms to all other requirements of the law.
(5) Upon examining the initial or annual guardianship report, the court shall enter an order approving or disapproving the report. If the court disapproves the report, the court shall order the guardian to provide a revised report or proof of any item in the report to the court. The guardian shall do so within a reasonable amount of time set by court.
(6) If the guardian fails to comply with the court order entered pursuant to subsection (5), the court shall take immediate action to compel compliance or to sanction the guardian after a hearing with appropriate notice to the ward, the ward’s counsel, if any, the guardian, and the ward’s next of kin.
(7) If an objection has been filed to a report, the court shall set the matter for hearing and shall conduct the hearing within 30 days after the filing of the objection. After the hearing, the court shall enter a written order either approving, or ordering modifications to, the report. If an objection is found to be without merit, the court may assess costs and attorney’s fees against the person who made the objection.
(8) The approved report constitutes the authority for the guardian to act in the forthcoming year. The powers of the guardian are limited by the terms of the report. The annual report may not grant additional authority to the guardian without a hearing, as provided for in s. 744.331, to determine that the ward is incapacitated to act in that matter. Unless the court orders otherwise, the guardian may continue to act under authority of the last-approved report until the forthcoming year’s report is approved.
History.—s. 54, ch. 89-96; s. 38, ch. 90-271; s. 1, ch. 99-277; s. 96, ch. 2004-11; s. 17, ch. 2015-83.
744.3701 Confidentiality.—
(1) Unless otherwise ordered by the court, upon a showing of good cause, an initial, annual, or final guardianship report or amendment thereto, or a court record relating to the settlement of a claim, is subject to inspection only by the court, the clerk or the clerk’s representative, the guardian and the guardian’s attorney, the guardian ad litem with regard to the settlement of the claim, the ward if he or she is at least 14 years of age and has not been determined to be totally incapacitated, the ward’s attorney, the minor if he or she is at least 14 years of age, or the attorney representing the minor with regard to the minor’s claim, or as otherwise provided by this chapter.
(2) The court may direct disclosure and recording of parts of an initial, annual, or final report or amendment thereto, or a court record relating to the settlement of a claim, including a petition for approval of a settlement on behalf of a ward or minor, a report of a guardian ad litem relating to a pending settlement, or an order approving a settlement on behalf of a ward or minor, in connection with a real property transaction or for such other purpose as the court allows.
(3) A court record relating to the settlement of a ward’s or minor’s claim, including a petition for approval of a settlement on behalf of a ward or minor, a report of a guardian ad litem relating to a pending settlement, or an order approving a settlement on behalf of a ward or minor, is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and may not be disclosed except as specifically authorized.
History.—s. 39, ch. 90-271; s. 1091, ch. 97-102; s. 1, ch. 2015-84.
744.371 Relief to be granted.—If it appears from the annual guardianship report that:
(1) The condition of the ward requires further examination;
(2) Any change in the proposed care, maintenance, or treatment is needed;
(3) The ward is qualified for restoration of some or all rights;
(4) The condition or maintenance of the ward requires the performance or doing of any other thing for the best interest of the ward which is not indicated in the plan; or
(5) There is any other matter necessary to protect the interests of the ward,
the court shall, after a hearing with appropriate notice, amend the plan or enter any other order necessary to protect the ward.
History.—s. 1, ch. 74-106; ss. 6, 26, ch. 75-222; s. 55, ch. 89-96; s. 40, ch. 90-271.
Note.—Created from former s. 744.484.
744.3715 Petition for interim judicial review.—
(1) At any time, any interested person, including the ward, may petition the court for review alleging that the guardian is not complying with the guardianship plan, is exceeding his or her authority under the guardianship plan, is acting in a manner contrary to s. 744.361, is denying visitation between the ward and his or her relatives in violation of s. 744.361(13), or is not acting in the best interest of the ward. The petition for review must state the nature of the objection to the guardian’s action or proposed action. Upon the filing of any such petition, the court shall review the petition and act upon it expeditiously.
(2) If the petition for review is found to be without merit, the court may assess costs and attorney’s fees against the petitioner.
History.—s. 56, ch. 89-96; s. 41, ch. 90-271; s. 1092, ch. 97-102; s. 18, ch. 2015-83.
744.372 Judicial review of guardianships.—The court retains jurisdiction over all guardianships. The court shall review the appropriateness and extent of a guardianship annually and:
(1) If an objection to the terms of the guardianship report has been filed pursuant to s. 744.367;
(2) If interim review has been requested under s. 744.3715;
(3) If a person, including the ward, has filed a suggestion of increased capacity; or
(4) If the guardianship report has not been received and the guardian has failed to respond to a show cause order.
History.—s. 57, ch. 89-96; s. 42, ch. 90-271.
744.3725 Procedure for extraordinary authority.—Before the court may grant authority to a guardian to exercise any of the rights specified in s. 744.3215(4), the court must:
(1) Appoint an independent attorney to act on the incapacitated person’s behalf, and the attorney must have the opportunity to meet with the person and to present evidence and cross-examine witnesses at any hearing on the petition for authority to act;
(2) Receive as evidence independent medical, psychological, and social evaluations with respect to the incapacitated person by competent professionals or appoint its own experts to assist in the evaluations;
(3) Personally meet with the incapacitated person to obtain its own impression of the person’s capacity, so as to afford the incapacitated person the full opportunity to express his or her personal views or desires with respect to the judicial proceeding and issue before the court;
(4) Find by clear and convincing evidence that the person lacks the capacity to make a decision about the issue before the court and that the incapacitated person’s capacity is not likely to change in the foreseeable future; and
(5) Be persuaded by clear and convincing evidence that the authority being requested is in the best interests of the incapacitated person.
The provisions of this section and s. 744.3215(4) are procedural and do not establish any new or independent right to or authority over the termination of parental rights, dissolution of marriage, sterilization, abortion, or the termination of life support systems.
History.—s. 58, ch. 89-96; s. 43, ch. 90-271; s. 25, ch. 95-401; s. 1093, ch. 97-102; s. 3, ch. 2017-16.
744.373 Production of property.—On the petition of a creditor or other interested person, including the ward, or on its own motion, the court may require a guardian of the property to produce satisfactory evidence that the property of the ward for which the guardian is responsible is in the guardian’s possession or under her or his control. If it deems it necessary or proper, the court may order the guardian to produce the property for the inspection of the creditor, another interested person, the ward, or the court.
History.—s. 1, ch. 74-106; ss. 17, 26, ch. 75-222; s. 71, ch. 89-96; s. 44, ch. 90-271; s. 1094, ch. 97-102.
Note.—Created from former s. 745.30; former s. 744.434.
744.3735 Annual appearance of the guardian.—The court may require the guardian to appear before the court at the time the guardian files the annual guardianship report or at such other time as the court determines, in order for the court to inquire as to any matter relating to the well-being of the ward.
History.—s. 1, ch. 74-106; ss. 17, 26, ch. 75-222; s. 11, ch. 79-221; s. 72, ch. 89-96.
Note.—Former s. 744.437.
744.374 Payments to guardian.—If there is more than one guardian, either guardian may petition for an order directing the guardian of the property to pay to the guardian of the person periodic amounts for the support, care, maintenance, education, and other needs of the ward if not otherwise provided for in the guardianship plan. The amount may be increased or decreased from time to time. If an order is entered, the receipt of the guardian for payments made shall be a sufficient discharge of the guardian who makes the payments. The guardian shall not be bound to see to the application of the payments.
History.—s. 1, ch. 74-106; ss. 6, 26, ch. 75-222; s. 59, ch. 89-96; s. 45, ch. 90-271; s. 1095, ch. 97-102.
Note.—Created from former s. 744.50.
744.381 Appraisals.—When the court deems it necessary, appraisers may be appointed to appraise the property of the ward that is subject to the guardianship.
History.—s. 1, ch. 74-106; s. 61, ch. 89-96; s. 46, ch. 90-271.
Note.—Created from former s. 744.54.
744.384 Subsequently discovered or acquired property.—
(1) If a plenary guardian of the property of the ward learns of any property that is not included in previous inventories, the property shall be inventoried within 30 days after the discovery or acquisition.
(2) If a limited guardian of the property of the ward learns of any property that was not known to the court at the time of his or her appointment, he or she shall file a report of such property with the court. Upon petition by the guardian, ward, or other interested person, the court, after hearing with appropriate notice, may direct the guardian to take custody and control of such property, without further adjudicatory proceeding under s. 744.331.
History.—s. 1, ch. 74-106; ss. 14, 26, ch. 75-222; s. 62, ch. 89-96; s. 47, ch. 90-271; s. 1096, ch. 97-102.
Note.—Created from former s. 744.59.
744.387 Settlement of claims.—
(1) When a settlement of any claim by or against the guardian, whether arising as a result of personal injury or otherwise, and whether arising before or after appointment of a guardian, is proposed, but before an action to enforce it is begun, on petition by the guardian of the property stating the facts of the claim, question, or dispute and the proposed settlement, and on any evidence that is introduced, the court may enter an order authorizing the settlement if satisfied that the settlement will be for the best interest of the ward. The order shall relieve the guardian from any further responsibility in connection with the claim or dispute when the settlement has been made in accordance with the order. The order authorizing the settlement may also determine whether an additional bond is required and, if so, shall fix the amount of it.
(2) In the same manner as provided in subsection (1) or as authorized by s. 744.301, the natural guardians or guardian of a minor may settle any claim by or on behalf of a minor that does not exceed $15,000 without bond. A legal guardianship shall be required when the amount of the net settlement to the ward exceeds $15,000.
(3)(a) No settlement after an action has been commenced by or on behalf of a ward shall be effective unless approved by the co