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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to guardianship; providing a short 2
title; amending s. 744.102, F.S.; defining the term 3
"family"; amending s. 744.2006, F.S.; requiring public 4
guardians to be appointed on a rotating basis; 5
amending s. 744.3021, F.S.; requiring the court to 6
establish visitation rights of a minor's family; 7
creating a rebuttable presumption; requiring clear and 8
convincing evidence to deny visitation or other 9
contact; authorizing the court to establish reasonable 10
limitations on such visitation; requiring that an y 11
limitations on visitation or other contact be 12
specified in the order of appointment; amending s. 13
744.3203, F.S.; authorizing the suspension of a power 14
of attorney only under certain circumstances; 15
requiring a jury to determine if a power of attorney 16
should be suspended; amending ss. 744.3215 and 17
744.372, F.S.; requiring a full reevaluation of the 18
need for guardianship after a certain time; 19
prohibiting certain judges from overseeing the 20
reevaluation proceedings; amending s. 744.331, F.S.; 21
requiring the court to impanel a jury for a certain 22
purpose; requiring the court to establish visitation 23
rights of an alleged incapacitated person's family; 24
creating a rebuttable presumption; requiring clear and 25
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convincing evidence to deny visitation or other 26
contact; authorizing the court to establish reasonable 27
limitations on such visitation; requiring that any 28
limitations on visitation or other contact be 29
specified in the order determining incapacity; 30
requiring a jury to make certain decisions under 31
certain circumstances ; authorizing the court to grant 32
authority to certain persons even if a guardian is 33
appointed; amending s. 744.334, F.S.; revising 34
requirements for a petition for the appointment of a 35
guardian; amending ss. 744.365 and 744.3678, F.S.; 36
requiring the verifie d inventory and annual accounting 37
be made available to certain persons; amending ss. 38
744.361, 744.462, and 744.474, F.S.; conforming 39
provisions to changes made by the act; amending ss. 40
44.407 and 744.2003, F.S.; conforming cross -41
references; providing an ef fective date. 42
43
Be It Enacted by the Legislature of the State of Florida: 44
45
Section 1. This act may be cited as "Karilyn's Law." 46
Section 2. Subsections (8) through (22) of section 47
744.102, Florida Statutes, are renumbered as subsections (9) 48
through (23), respectively, and a new subsection (8) is added to 49
that section, to read: 50
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744.102 Definitions. —As used in this chapter, the term: 51
(8) "Family" means a parent, sibling, child, spouse, or 52
any other relative by blood, marriage, or adoption of the minor, 53
ward, or alleged incapacitated person. 54
Section 3. Subsection (2) of section 744.2006, Florida 55
Statutes, is amended to read: 56
744.2006 Office of Public and Professional Guardians; 57
appointment, notification. — 58
(2) The executive director shall a ppoint or contract with 59
a public guardian from the list of candidates described in 60
subsection (1). A public guardian must meet the qualifications 61
for a guardian as prescribed in s. 744.309(1)(a). Public 62
guardians for alleged incapacitated persons or minors must be 63
appointed on a rotating basis by the executive director. Upon 64
appointment of the public guardian, the executive director shall 65
notify the chief judge of the judicial circuit and the Chief 66
Justice of the Supreme Court of Florida, in writing, of the 67
appointment. 68
Section 4. Subsection (2) of section 744.3021, Florida 69
Statutes, is amended to read: 70
744.3021 Guardians of minors. — 71
(2) A minor is not required to attend the hearing on the 72
petition for appointment of a guardian, unless otherwise 73
directed by the court. During the hearing on the petition for 74
appointment of a guardian, the court shall establish the 75
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visitation rights of the minor's family. There is a rebuttable 76
presumption in favor of allowing visitation or other contact 77
with the minor's family. Visitation or other contact may only be 78
denied upon a showing of clear and convincing evidence that 79
visitation or other contact is not in the best interests of the 80
minor. The court may establish reasonable limitations on the 81
visitation rights of th e minor's family. The court must include 82
any such limitations in the order of appointment. 83
Section 5. Subsections (1) and (3) of section 744.3203, 84
Florida Statutes, is amended to read: 85
744.3203 Suspension of power of attorney before incapacity 86
determination.— 87
(1) At any time during proceedings to determine incapacity 88
but before the entry of an order determining incapacity, the 89
authority granted under an alleged incapacitated person's power 90
of attorney to a parent, spouse, child, or grandchild is 91
suspended only if when the petitioner files a motion stating 92
that a specific power of attorney should be suspended for any of 93
the following grounds: 94
(a) The agent's decisions are not in accord with the 95
alleged incapacitated person's known desires. 96
(b) The power of attorney is invalid. 97
(c) The agent has failed to discharge his or her duties or 98
incapacity or illness renders the agent incapable of discharging 99
duties. 100
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(d) The agent has abused powers. 101
(e) There is a danger that the property of the alleged 102
incapacitated person may be wasted, misappropriated, or lost 103
unless the authority under the power of attorney is suspended. 104
105
Grounds for suspending a power of attorney do not include the 106
existence of a dispute between the agent and the petitioner 107
which is more appropriate for resolution in some other forum or 108
a legal proceeding other than a guardianship proceeding. 109
(3) Upon the filing of a response to the motion by the 110
agent under the power of attorney, the court shall impanel a 111
jury to determine if the petitioner met his or her burden to 112
suspend a power of attorney and schedule the motion for an 113
expedited hearing. Unless an emergency arises and the agent's 114
response sets forth the nature of the emergency, the property or 115
matter involved, and the power to be exercised by the agent, 116
notice must be given to all interested persons, the alleged 117
incapacitated person, and the alleged incapacitated person's 118
attorney. Based on the jury's determination, the court order 119
following the hearing must set forth what power s the agent is 120
permitted to exercise, if any, pending the outcome of the 121
petition to determine incapacity. 122
Section 6. Paragraph (b) of subsection (1) of section 123
744.3215, Florida Statutes, is amended to read: 124
744.3215 Rights of persons determined inc apacitated.— 125
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(1) A person who has been determined to be incapacitated 126
retains the right: 127
(b) To have continuing review of the need for restriction 128
of his or her rights and every 3 years a full reevaluation of 129
the need for guardianship, including an exa mination by an 130
examining committee and an adjudicatory hearing as required 131
under s. 744.331. The adjudicatory hearing may not be conducted 132
by the same judge who conducted the initial adjudicatory 133
hearing. 134
Section 7. Paragraph (a) of subsection (5) and paragraphs 135
(a) and (f) of subsection (6) of section 744.331, Florida 136
Statutes, are amended and paragraph (d) is added to subsection 137
(5) of that section, to read: 138
744.331 Procedures to determine incapacity. — 139
(5) ADJUDICATORY HEARING. — 140
(a) Upon appointment of the examining committee, the court 141
shall set the date upon which the petition will be heard and, if 142
necessary, impanel a jury to determine the validity of the 143
alleged incapacitated person's trust, trust amendment, power of 144
attorney, or will. The adjudicatory hearing must be conducted at 145
least 10 days, which time period may be waived, but no more than 146
30 days, after the filing of the last filed report of the 147
examining committee members, unless good cause is shown. The 148
adjudicatory hearing must be con ducted at the time and place 149
specified in the notice of hearing and in a manner consistent 150
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with due process. 151
(d) In the adjudicatory hearing on a petition alleging 152
incapacity, the court shall establish the visitation rights of 153
the family of the person al leged to be incapacitated. There is a 154
rebuttable presumption in favor of allowing visitation or other 155
contact with the family of the person alleged to be 156
incapacitated. Visitation or other contact may only be denied 157
upon a showing of clear and convincing e vidence that visitation 158
or other contact is not in the best interests of the person 159
alleged to be incapacitated. The court may establish reasonable 160
limitations on the visitation rights of the family of the person 161
alleged to be incapacitated. The court must include any such 162
limitations in the order determining incapacity. 163
(6) ORDER DETERMINING INCAPACITY. —If, after making 164
findings of fact on the basis of clear and convincing evidence, 165
the court finds that a person is incapacitated with respect to 166
the exercise of a particular right, or all rights, the court 167
shall enter a written order determining such incapacity. In 168
determining incapacity, the court shall consider the person's 169
unique needs and abilities and may only remove those rights that 170
the court finds the person does not have the capacity to 171
exercise. A person is determined to be incapacitated only with 172
respect to those rights specified in the order. 173
(a) The court shall make all of the following findings: 174
1. The exact nature and scope of the person's 175
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incapacities.; 176
2. The exact areas in which the person lacks capacity to 177
make informed decisions about care and treatment services or to 178
meet the essential requirements for her or his physical or 179
mental health or safety .; 180
3. The specific legal disabili ties to which the person is 181
subject.; and 182
4. The specific rights that the person is incapable of 183
exercising. 184
5. The limitations on the visitation rights of the 185
person's family, if any. 186
(f) If Upon the filing of a verified statement by an 187
interested person files a verified statement stating: 188
1. that he or she has a good faith belief that the alleged 189
incapacitated person's trust, trust amendment, or durable power 190
of attorney, or will is invalid; and provides 191
2. a reasonable factual basis for that be lief, the court 192
must impanel a jury to consider the facts provided and determine 193
if the trust, trust amendment, or durable power of attorney , or 194
will is a reasonable shall not be deemed to be an alternative to 195
the appointment of a guardian. However, the appointment of a 196
guardian does not limit the court's power to determine that 197
certain authority granted by a trust, trust amendment, durable 198
power of attorney, or will is to remain exercisable by the 199
agent. 200
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Section 8. Subsection (1) of section 744.334, Florida 201
Statutes, is amended to read: 202
744.334 Petition for appointment of guardian or 203
professional guardian; contents. — 204
(1) Every petition for the appointment of a guardian must 205
shall be verified by the petitioner and shall contain all of the 206
following information statements, to the best of petitioner's 207
knowledge and belief :, showing 208
(a) The name, age, residence, and post office address of 209
the alleged incapacitated person or minor .; 210
(b) The nature of the her or his incapacity of the alleged 211
incapacitated person, if any.; 212
(c) The extent of guardianship desired, either plenary or 213
limited.; 214
(d) The residence and post office address of the 215
petitioner.; 216
(e) The names and addresses of the next of kin of the 217
alleged incapacitated person or minor, if known to the 218
petitioner.; 219
(f) The name of the proposed guardian and the reasons why 220
she or he should be appointed guardian .; 221
(g) Whether the proposed guardian is a professional 222
guardian.; 223
(h) The relationship and previous relationship of the 224
proposed guardian to the alleged incapacitated person or minor .; 225
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(i) Whether the alleged incapacitated person or minor has 226
a valid trust, trust amendment, durable power of attorney, or 227
will. 228
(j) Any other type of guardianship under part III of this 229
chapter or alternatives to guardianship that the alleged 230
incapacitated person or minor has designated or is in currently 231
or has been in previously .; 232
(k) The reasons why a guardian advocate under s. 744.3085 233
or other alternatives to guardianship , including a valid w ill 234
executed as required in s. 732.502, are insufficient to meet the 235
needs of the alleged incapacitated person or minor .; and 236
(l) The nature and value of property subject to the 237
guardianship. The petition must state whether a willing and 238
qualified guardian cannot be located. 239
240
As used in this subsection, the term "alternatives to 241
guardianship" means an advance directive as defined in s. 242
765.101, a durable power of attorney as provided in chapter 709, 243
a representative payee under 42 U.S.C. s. 1007, or a tru st 244
instrument as defined in s. 736.0103. 245
Section 9. Paragraph (b) of subsection (13) and paragraph 246
(d) of subsection (14) of section 744.361, Florida Statutes, are 247
amended to read: 248
744.361 Powers and duties of guardian. — 249
(13) Recognizing that every individual has unique needs 250
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and abilities, a guardian who is given authority over a ward's 251
person shall, as appropriate under the circumstances: 252
(b) Allow the ward to maintain visitation or other contact 253
with his or her family and friends unless a court has: 254
1. Determined that visitation or other contact is not in 255
the best interests of the guardian believes that such contact 256
may cause harm to the ward; or 257
2. Placed reasonable limitations on such visitation or 258
other contact in the order determining incapacity or, in the 259
case of a minor, the order of appointment . 260
(14) A professional guardian must ensure that each of the 261
guardian's wards is personally visited by the guardian or one of 262
the guardian's professional staff at least once each calendar 263
quarter. During the personal visit, the guardian or the 264
guardian's professional staff person shall assess: 265
(d) The nature and extent of visitation or other contact 266
and communication with the ward's family and friends. 267
268
This subsection does not apply to a pro fessional guardian who 269
has been appointed only as guardian of the property. 270
Section 10. Section 744.462, Florida Statutes, is amended 271
to read: 272
744.462 Determination regarding alternatives to 273
guardianship.—Any judicial determination concerning the val idity 274
of the ward's durable power of attorney, trust, or trust 275
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amendment, or will must shall be promptly reported in the 276
guardianship proceeding by the guardian of the property. If the 277
instrument has been judicially determined to be valid or if, 278
after the appointment of a guardian, a petition is filed 279
alleging that there is an alternative to guardianship which will 280
sufficiently address the problems of the ward, the court shall 281
impanel a jury to review the continued need for a guardian and 282
the extent of the need for delegation of the ward's rights. 283
Section 11. Subsection (1) of section 744.365, Florida 284
Statutes, is amended to read: 285
744.365 Verified inventory. — 286
(1) FILING.—A guardian of the property shall file a 287
verified inventory of the ward's property. The verified 288
inventory must be made available to the ward's family, next of 289
kin, and the beneficiaries and heirs of a valid will. 290
Section 12. Subsection (1) of section 744.3678, Florida 291
Statutes, is amended to read: 292
744.3678 Annual accounting. — 293
(1) Each guardian of the property must file an annual 294
accounting with the court. The annual accounting must be made 295
available to the ward's family, next of kin, an d the 296
beneficiaries and heirs of a valid will. 297
Section 13. Section 744.372, Florida Statutes, is amended 298
to read: 299
744.372 Judicial review of guardianships. —The court 300
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retains jurisdiction over all guardianships. 301
(1) The court shall review the approp riateness and extent 302
of a guardianship annually and: 303
(a)(1) If an objection to the terms of the guardianship 304
report has been filed pursuant to s. 744.367; 305
(b)(2) If interim review has been requested under s. 306
744.3715; 307
(c)(3) If a person, including th e ward, has filed a 308
suggestion of increased capacity; or 309
(d)(4) If the guardianship report has not been received 310
and the guardian has failed to respond to a show cause order. 311
(2) Every 3 years the court must conduct a full 312
reevaluation of the need for guardianship, including an 313
examination by an examining committee and an adjudicatory 314
hearing as required under s. 744.331. The adjudicatory hearing 315
required under this subsection may not be conducted by the same 316
judge who conducted the initial adjudicatory hearing. 317
Section 14. Subsection (20) of section 744.474, Florida 318
Statutes, is amended to read: 319
744.474 Reasons for removal of guardian. —A guardian may be 320
removed for any of the following reasons, and the removal shall 321
be in addition to any other pen alties prescribed by law: 322
(20) Upon a showing that removal of the current guardian 323
is in the best interests interest of the ward. In determining 324
whether a guardian who is a family member of related by blood or 325
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marriage to the ward is to be removed, there is shall be a 326
rebuttable presumption that the guardian is acting in the best 327
interests of the ward. 328
Section 15. Paragraph (a) of subsection (5) of section 329
44.407, Florida Statutes, is amended to read: 330
44.407 Elder-focused dispute resolution process. — 331
(5) QUALIFICATIONS FOR ELDERCARING COORDINATORS. — 332
(a) The court shall appoint qualified eldercaring 333
coordinators who: 334
1. Meet one of the following professional requirements: 335
a. Are licensed as a mental health professional under 336
chapter 491 and hold at least a master's degree in the 337
professional field of practice; 338
b. Are licensed as a psychologist under chapter 490; 339
c. Are licensed as a physician under chapter 458 or 340
chapter 459; 341
d. Are licensed as a nurse under chapter 464 and hold at 342
least a master's degree; 343
e. Are certified by the Florida Supreme Court as a family 344
mediator and hold at least a master's degree; 345
f. Are a member in good standing of The Florida Bar; or 346
g. Are a professional guardian as defined in s. 744.102 s. 347
744.102(17) and hold at least a master's degree. 348
2. Have completed all of the following: 349
a. Three years of postlicensure or postcertification 350
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practice.; 351
b. A family mediation training program certified by the 352
Florida Supreme Court .; and 353
c. An eldercaring coordinator training program certified 354
by the Florida Supreme Court. The training must total at least 355
44 hours and must include advanced tactics for dispute 356
resolution of issues related to aging, illness, incapacity, or 357
other vulnerabilities associated wit h elders, as well as elder, 358
guardianship, and incapacity law and procedures and less 359
restrictive alternatives to guardianship; phases of eldercaring 360
coordination and the role and functions of an eldercaring 361
coordinator; the elder's role within eldercaring coordination; 362
family dynamics related to eldercaring coordination; eldercaring 363
coordination skills and techniques; multicultural competence and 364
its use in eldercaring coordination; at least 6 hours of the 365
implications of elder abuse, neglect, and exploitat ion and other 366
safety issues pertinent to the training; at least 4 hours of 367
ethical considerations pertaining to the training; use of 368
technology within eldercaring coordination; and court -specific 369
eldercaring coordination procedures. Pending certification o f a 370
training program by the Florida Supreme Court, the eldercaring 371
coordinator must document completion of training that satisfies 372
the hours and the elements prescribed in this sub -subparagraph. 373
3. Have successfully passed a Level 2 background screening 374
as provided in s. 435.04(2) and (3) or are exempt from 375
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disqualification under s. 435.07. The prospective eldercaring 376
coordinator must submit a full set of fingerprints to the court 377
or to a vendor, entity, or agency authorized by s. 943.053(13). 378
The court, vendor, entity, or agency shall forward the 379
fingerprints to the Department of Law Enforcement for state 380
processing, and the Department of Law Enforcement shall forward 381
the fingerprints to the Federal Bureau of Investigation for 382
national processing. The pro spective eldercaring coordinator 383
shall pay the fees for state and federal fingerprint processing. 384
The state cost for fingerprint processing shall be as provided 385
in s. 943.053(3)(e) for records provided to persons or entities 386
other than those specified as e xceptions therein. 387
4. Have not been a respondent in a final order granting an 388
injunction for protection against domestic, dating, sexual, or 389
repeat violence or stalking or exploitation of an elder or a 390
disabled person. 391
5. Have met any additional qualif ications the court may 392
require to address issues specific to the parties. 393
Section 16. Subsection (3) of section 744.2003, Florida 394
Statutes, is amended to read: 395
744.2003 Regulation of professional guardians; 396
application; bond required; educational req uirements.— 397
(3) Each professional guardian defined in s. 744.102 s. 398
744.102(17) and public guardian must receive a minimum of 40 399
hours of instruction and training. Each professional guardian 400
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must receive a minimum of 16 hours of continuing education ever y 401
2 calendar years after the year in which the initial 40 -hour 402
educational requirement is met. The instruction and education 403
must be completed through a course approved or offered by the 404
Office of Public and Professional Guardians. The expenses 405
incurred to satisfy the educational requirements prescribed in 406
this section may not be paid with the assets of any ward. This 407
subsection does not apply to any attorney who is licensed to 408
practice law in this state or an institution acting as guardian 409
under s. 744.2002(7). 410
Section 17. This act shall take effect July 1, 2023. 411