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 imminen