US Laws, Codes, Statutes & Cases

744.101  Short title.

744.1012  Legislative intent.

744.102  Definitions.

744.1025  Additional definitions.

744.103  Guardians of incapacitated world war veterans.

744.104  Verification of documents.

744.105  Costs.

744.106  Notice.

744.107  Court monitors.

744.108  Guardian's and attorney's fees and expenses.

744.1083  Professional guardian registration.

744.1085  Regulation of professional guardians; application; bond required; educational requirements.

744.109  Records.

744.1095  Hearings.

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 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. The Legislature further finds that 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. Recognizing that every individual has unique needs and differing abilities, the Legislature declares that 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.

History.--s. 3, ch. 89-96; s. 1, ch. 90-271; s. 1067, ch. 97-102.

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. Such 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)  "Clerk" means the clerk or deputy clerk of the court.

(3)  "Corporate guardian" means a corporation authorized to exercise fiduciary or guardianship powers in this state and includes a nonprofit corporate guardian.

(4)  "Court" means the circuit court.

(5)  "Court monitor" means a person appointed by the court pursuant to s. 744.107 to provide the court with information concerning a ward.

(6)  "Estate" means the property of a ward subject to administration.

(7)  "Foreign guardian" means a guardian appointed in another state or country.

(8)  "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.

(9)  "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.

(10)  "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.

(11)  "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 such 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.

(12)  "Minor" means a person under 18 years of age whose disabilities have not been removed by marriage or otherwise.

(13)  "Next of kin" means those persons who would be heirs at law of the ward or alleged incapacitated person if such person were deceased and includes the lineal descendants of such ward or alleged incapacitated person.

(14)  "Nonprofit corporate guardian" means a nonprofit corporation organized for religious or charitable purposes and existing under the laws of this state.

(15)  "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.

(16)  "Professional guardian" means any guardian who receives or has at any time received compensation for services rendered to more than two 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.

(17)  "Property" means both real and personal property or any interest in it and anything that may be the subject of ownership.

(18)  "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.

(19)  "Totally incapacitated" means incapable of exercising any of the rights enumerated in s. 744.3215(2) and (3).

(20)  "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.

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.

744.103  Guardians of incapacitated world war veterans.--The provisions of this law shall extend to incapacitated world war veterans, provided for in ¹chapters 293 and 294 or any amendment or revision of them. The provisions of this law are cumulative to those chapters. Any conflict between ¹chapters 293 and 294, or any amendment or revision of them, and this law shall be resolved by giving effect to those chapters.

History.--s. 1, ch. 74-106; s. 2, ch. 75-222; s. 1, ch. 77-174; s. 6, ch. 89-96.

¹Note.--The sections comprising former chapters 293 and 294, except for former s. 293.16, were either repealed or transferred to part VIII of chapter 744 by ch. 84-62; s. 293.16 was transferred and renumbered as s. 394.4672.

Note.--Created from former s. 744.05.

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.--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 monitor may investigate, seek information, examine documents, or interview the ward and shall report to the court his or her findings. The court shall not appoint as a monitor a family member or any person with a personal interest in the proceedings. 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.

History.--ss. 18, 26, ch. 75-222; s. 10, ch. 89-96; s. 4, ch. 90-271; s. 1068, ch. 97-102.

744.108  Guardian's and attorney's 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's and attorney's 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 fees for the guardian's attorney, 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.

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.

744.1083  Professional guardian registration.--

(1)  A professional guardian must register with the Statewide Public Guardianship Office established in part IX of this chapter.

(2)  Annual registration shall be made on forms furnished by the Statewide Public Guardianship Office and accompanied by the applicable registration fee as determined by rule. The fee may not exceed $100.

(3)  Registration must include the following:

(a)  If the professional guardian is a natural person, the name, address, date of birth, and employer identification or social security number of the professional guardian.

(b)  If the professional guardian is a partnership or association, the name, address, and date of birth of every member, and the employer identification number of the partnership or association.

(c)  If the professional guardian is a corporation, the name, address, and employer identification number of the corporation; the name, address, and date of birth of each of its directors and officers; the name of its resident agent; and the name, address, and date of birth of each person having at least a 10-percent interest in the corporation.

(d)  The name, address, date of birth, and employer identification number, if applicable, of each person providing guardian-delegated financial or personal guardianship services for wards.

(e)  Documentation that the bonding and educational requirements of s. 744.1085 have been met.

(f)  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 Statewide Public Guardianship Office 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 the executive director denies registration to a professional guardian, the Statewide Public Guardianship Office must send written notification of the denial to the chief judge of each judicial circuit in which the guardian was serving on the day of the office's decision to deny registration.

(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)(e).

(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 described in s. 1009.98(3)(a), 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 subsection (3) 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.

744.1085  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(16) 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 Statewide Public Guardianship Office. 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.

(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)  After July 1, 2005, each professional guardian shall be 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, not to 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)  After July 1, 2004, the court shall not appoint any professional guardian who has not met the requirements of this section and s. 744.1083.

(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.

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.

744.201  Domicile of ward.

744.202  Venue.

744.2025  Change of ward's residence.

744.201  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.

Note.--Created from former s. 744.10.

744.202  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. 744.2025.

(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.

Note.--Created from former s. 744.11.

744.2025  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.

744.301  Natural guardians.

744.3021  Guardians 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 mother and father jointly are natural guardians of their own children and of their adopted children, during minority. If one parent dies, the natural guardianship shall pass to the surviving parent, and the right shall continue even though the surviving parent remarries. If the marriage between the parents is dissolved, the natural guardianship shall belong to the parent to whom the custody of the child is awarded. If the parents are given joint custody, then both shall continue as natural guardians. If the marriage is dissolved and neither the father nor the mother is given custody of the child, neither shall 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 a court of competent jurisdiction enters an order stating otherwise.

(2)  The natural guardian or guardians are authorized, on behalf of any of their minor children, to:

(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 of said minor children;

(b)  Collect, receive, manage, and dispose of the proceeds of any such 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 by s. 710.102, of which the minor is a beneficiary, participant, or owner,

without appointment, authority, or bond, when the amount involved in any instance does not exceed $15,000.

(3)  All instruments executed by a natural guardian under the powers provided for in subsection (2) shall be binding on the ward.

(4)(a)  In any case where a minor has a claim for personal injury, property damage, or wrongful death in which the gross settlement for the claim of the minor exceeds $15,000, the court may, prior to the approval of the settlement of the minor's claim, appoint a guardian ad litem to represent the minor's interests. In any case in which the gross settlement involving a minor equals or exceeds $25,000, the court shall, prior to the approval of the settlement of the minor's claim, appoint a guardian ad litem to represent the minor's interests. The appointment of the guardian ad litem must be without the necessity of bond or a notice. The duty of the guardian ad litem is to protect the minor's interests. The procedure for carrying out that duty is as prescribed in the Florida Probate Rules. If a legal guardian of the minor has previously been appointed and has no potential adverse interest to the minor, the court may not appoint a guardian ad litem to represent the minor's interests, unless the court determines that the appointment is otherwise necessary.

(b)  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.

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.

Note.--Created from former s. 744.13.

744.3021  Guardians of minors.--

(1)  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.

History.--s. 9, ch. 90-271.

744.3031  Emergency temporary guardianship.--

(1)  A court, prior to appointment of a guardian but after a petition for determination of incapacity has been filed pursuant to this chapter, may appoint an emergency temporary guardian for the person or property, or both, of an alleged incapacitated person. The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person's property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. The subject of the proceeding or any adult interested in the welfare of that person may apply to the court in which the proceeding is pending for the emergency appointment of a temporary guardian. The powers and duties of the emergency temporary guardian must be specifically enumerated by court order. The court shall appoint counsel to represent the alleged incapacitated person during any such summary proceedings, and such appointed counsel may request that the proceeding be recorded and transcribed.

(2)  The court may appoint an emergency temporary guardian on its own motion if no petition for appointment of guardian has been filed at the time of entry of an order determining incapacity.

(3)  The authority of an emergency temporary guardian expires 60 days after the date of appointment or when a guardian is appointed, whichever occurs first. The authority of the emergency temporary guardian may be extended for an additional 30 days upon a showing that the emergency conditions still exist.

(4)  The court may issue an injunction, restraining order, or other appropriate writ to protect the physical or mental health or safety of the person who is the ward of the emergency temporary guardianship.

(5)  The emergency temporary guardian shall take an oath to faithfully perform the duties of a guardian before letters of emergency temporary guardianship are issued.

(6)  Before exercising authority as guardian, the emergency temporary guardian of the property may be required to file a bond in accordance with s. 744.351.

(7)  An emergency temporary guardian's authority and responsibility begins upon issuance of letters of emergency temporary guardianship in accordance with s. 744.345.

History.--s. 19, ch. 89-96; s. 10, ch. 90-271; s. 1070, ch. 97-102.

744.304  Standby guardianship.--

(1)  Upon petition or consent of both parents, natural or adoptive, if living, or of the surviving parent, a standby guardian of the person or property of a minor may be appointed by the court. The court may also appoint an alternate to the guardian to act if the standby guardian shall renounce, die, or become incapacitated after the death of the last surviving parent of the minor.

(2)  Upon petition of a currently serving guardian, a standby guardian of the person or property of an incapacitated person may be appointed by the court.

(3)  The standby guardian or alternate shall be empowered to assume the duties of his or her office immediately on the death or adjudication of incapacity of the last surviving natural or adoptive parent of a minor, or upon the death, removal, or resignation of the guardian for an adult; however, such a guardian of the ward's property may not be empowered to deal with the ward's property, other than to safeguard it, prior to issuance of letters of guardianship. If the incapacitated person is over the age of 18 years, the court shall conduct a hearing as provided in s. 744.331 before confirming the appointment of the standby guardian, unless the ward has previously been found to be incapacitated.

(4)  Within 20 days after assumption of duties as guardian, a standby guardian shall petition for confirmation of appointment. If the court finds the standby guardian to be qualified to serve as guardian pursuant to ss. 744.309 and 744.312, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347 and shall file a bond, if required. Letters of guardianship must then be issued in the manner provided in s. 744.345.

(5)  After the assumption of duties by a standby guardian, the court shall have jurisdiction over the guardian and the ward.

History.--s. 1, ch. 74-106; s. 7, ch. 75-222; s. 1, ch. 77-174; s. 20, ch. 89-96; s. 11, ch. 90-271; s. 1071, ch. 97-102.

Note.--Created from former s. 744.72.

744.3045  Preneed guardian.--

(1)  A competent adult may name a preneed guardian by making a written declaration that names such guardian to serve in the event of the declarant's incapacity.

(2)  The written declaration must reasonably identify the declarant and preneed guardian and be signed by the declarant in the presence of at least two attesting witnesses present at the same time.

(3)  The declarant may file the declaration with the clerk of the court. When a petition for incapacity is filed, the clerk shall produce the declaration.

(4)  Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian. The court shall not be bound to appoint the preneed guardian if the preneed guardian is found to be unqualified to serve as guardian.

(5)  The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity.

(6)  If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that such preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.

(7)  Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian pursuant to ss. 744.309 and 744.312, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347 and shall file a bond, if required. Letters of guardianship must then be issued in the manner provided in s. 744.345.

History.--s. 21, ch. 89-96; s. 12, ch. 90-271.

744.3046  Preneed guardian for minor.--

(1)  Both parents, natural or adoptive, if living, or the surviving parent, may nominate a preneed guardian of the person or property or both of the parent's minor child by making a written declaration that names such guardian to serve if the minor's last surviving parent becomes incapacitated or dies. The declarant or declarants may also name an alternate to the guardian to act if the designated preneed guardian refuses to serve, renounces the appointment, dies, or becomes incapacitated after the death of the last surviving parent of the minor.

(2)  The written declaration must reasonably identify the declarant or declarants and the designated preneed guardian and must be signed by the declarant or declarants in the presence of at least two attesting witnesses present at the same time. The written declaration must also provide the following information for each minor child named in such declaration: the full name as it appears on the birth certificate or as ordered by a court, date of birth, and social security number, if any.

(3)  The declarant must file the declaration with the clerk of the court. When a petition for incapacity of the last surviving parent or the appointment of a guardian upon the death of the last surviving parent is filed, the clerk shall produce the declaration.

(4)  Production of the declaration in a proceeding to determine incapacity of the last surviving parent, or in a proceeding to appoint a guardian upon the death of the last surviving parent, constitutes a rebuttable presumption that the designated preneed guardian is entitled to serve as guardian. The court is not bound to appoint the designated preneed guardian if the designated preneed guardian is found to be unqualified to serve as guardian.

(5)  The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity of the last surviving parent or the death of the last surviving parent.

(6)  If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that the alternate preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.

(7)  Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347 and shall file a bond, if the court requires a bond. Letters of guardianship must then be issued in the manner provided in s. 744.345.

(8)  The clerk shall maintain all declarations filed pursuant to this section until:

(a)  A petition for incapacity of the last surviving parent is filed or petition for the appointment of a guardian upon the death of the last surviving parent is filed as provided in subsection (3); or

(b)  All minor children named in the declaration have reached the age of majority.

The clerk may dispose of such written declaration in accordance with law.

History.--s. 23, ch. 92-200.

744.306  Foreign guardians.--

(1)  When the residence of a ward of a foreign guardian is moved to this state, the guardian shall, within 60 days after such change of residence, file the authenticated order of her or his appointment with the clerk of the court in the county where the ward resides. Such order shall be recognized and given full faith and credit in the courts of this state. The guardian and the ward are subject to this chapter.

(2)  A guardian appointed in any state, territory, or country may maintain or defend any action in this state as a representative of her or his ward.

(3)  Debtors who have received no written demand for payment from a guardian appointed in this state within 60 days after the appointment of a guardian, curator, conservator, or committee in any state, territory, or country other than this state, and whose property in this state is subject to a mortgage or other lien securing the debt held by the foreign guardian, curator, conservator, or committee, may pay the debt to the foreign guardian, curator, conservator, or committee after the expiration of 60 days from the date of her or his appointment. A satisfaction of the mortgage or lien, executed after the 60 days have expired by the foreign guardian, curator, conservator, or committee, with an authenticated copy of the letters or other evidence of authority of the foreign guardian, curator, conservator, or committee attached, may be recorded in the public records of this state and shall constitute an effective discharge of the mortgage or lien, irrespective of whether the debtor had received written demand before paying the debt.

(4)  All persons indebted to a ward, or having possession of personal property belonging to a ward, who have received no written demand for payment of the indebtedness or the delivery of the property from a guardian appointed in this state are authorized to pay the indebtedness or to deliver the personal property to the foreign guardian, curator, conservator, or committee after the expiration of the 60 days from the date of her or his appointment.

History.--s. 1, ch. 74-106; s. 7, ch. 75-222; s. 23, ch. 89-96; s. 1072, ch. 97-102.

Note.--Created from former s. 744.15.

744.307  Foreign guardian may manage the property of nonresident ward.--

(1)  A guardian of the property of a nonresident ward, duly appointed by a court of another state, territory, or country, who desires to manage any part or all of the property of the ward located in this state, may file a petition showing his or her appointment, describing the property, stating its estimated value, and showing the indebtedness, if any, existing against the ward in this state, to the best of the guardian's knowledge and belief.

(2)  The guardian shall designate a resident agent as required by the Florida Probate Rules.

(3)  The guardian shall file authenticated copies of his or her letters of guardianship or other authority and of his or her bond or other security. The court shall determine if the foreign bond or other security is sufficient to guarantee the faithful management of the ward's property in this state. The court may require a new guardian's bond in this state in the amount it deems necessary and conditioned for the proper management and application of the property of the ward coming into the custody of the guardian in this state.

(4)  Thereafter, the guardianship shall be governed by the law concerning guardianships.

History.--s. 1, ch. 74-106; s. 7, ch. 75-222; s. 24, ch. 89-96; s. 67, ch. 95-211; s. 1073, ch. 97-102.

Note.--Created from former s. 744.16.

744.308  Resident guardian of the property of nonresident ward.--

(1)  The court may appoint a person qualified under s. 744.309 as guardian of a nonresident ward's property upon the petition of a foreign guardian, next of kin, or creditor of the ward, regardless of whether he or she has a foreign guardian or not.

(2)  The petition for the appointment of a guardian for the property of a nonresident ward shall be in writing and shall be prepared in accordance with the requirements of s. 744.334.

(3)  If it is alleged that the incapacity is due to mental or physical incapacity, the petition shall be accompanied by an authenticated copy of the adjudication of incapacity from the qualified authorities in the state, territory, or country where the incapacitated person is domiciled and shall state whether the incapacitated person is in the custody of any person or institution and, if so, the name and post office address of the custodian. The adjudication shall constitute prima facie proof of the incapacity.

(4)  If the question about the mental or physical incapacity of a nonresident is presented while the nonresident is temporarily residing in this state and he or she is not under an adjudication of incapacity made in some other state, territory, or country, the procedure for the appointment of a guardian of the nonresident's property shall be the same as though he or she were a resident of this state.

(5)  When the ground for the appointment of a guardian is incapacity for which the person has been adjudicated in another state, territory, or country, notice of the hearing shall be served personally or by registered mail on the ward and the ward's next of kin and legal custodian, if any, at least 20 days before the hearing.

(6)  In the appointment of the guardian, the court shall be governed by s. 744.312.

(7)  The duties, powers, and liabilities for the custody, control, management, and disposition of the ward's property and removal, accounting, and discharge shall be governed by the law applicable to guardians of property of resident wards.

History.--s. 1, ch. 74-106; s. 7, ch. 75-222; s. 1, ch. 77-174; s. 25, ch. 89-96; s. 13, ch. 90-271; s. 1074, ch. 97-102.

Note.--Created from former ss. 744.18, 744.19, 744.21, 744.25, 744.26.

744.3085  Guardian advocates.--A circuit court may appoint a guardian advocate, without an adjudication of incapacity, for a person with developmental disabilities if the person lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person, property, or estate, or if the person has voluntarily petitioned for the appointment of a guardian advocate. Unless otherwise specified, the proceeding shall be governed by the Florida Probate Rules. In accordance with the legislative intent of this chapter, courts are encouraged to consider appointing a guardian advocate, when appropriate, as a less restrictive form of guardianship.

History.--s. 11, ch. 2004-260.

744.309  Who may be appointed guardian of a resident ward.

744.3115  Advance directives for health care.

744.312  Considerations in appointment of guardian.

744.3125  Application for appointment.

744.3135  Credit and criminal investigation.

744.3145  Guardian education requirements.

744.309  Who may be appointed guardian of a resident ward.--

(1)  RESIDENT.--

(a)  Any resident of this state who is sui juris and is 18 years of age or older is qualified to act as guardian of a ward.

(b)  No judge shall act as guardian after this law becomes effective, except when he or she is related to the ward by blood, marriage, or adoption, or has maintained a close relationship with the ward or the ward's family, and serves without compensation.

(2)  NONRESIDENT.--A nonresident of the state may serve as guardian of a resident ward if he or she is:

(a)  Related by lineal consanguinity to the ward;

(b)  A legally adopted child or adoptive parent of the ward;

(c)  A spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone related by lineal consanguinity to any such person; or

(d)  The spouse of a person otherwise qualified under this section.

(3)  DISQUALIFIED PERSONS.--No person who has been convicted of a felony or who, from any incapacity or illness, is incapable of discharging the duties of a guardian, or who is otherwise unsuitable to perform the duties of a guardian, shall be appointed to act as guardian. Further, no person who has been judicially determined to have committed abuse, abandonment, or neglect against a child as defined in s. 39.01 or s. 984.03(1), (2), and (37), or who has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under s. 435.03 or under any similar statute of another jurisdiction, shall be appointed to act as a guardian. Except as provided in subsection (5) or subsection (6), a person who provides substantial services to the proposed ward in a professional or business capacity, or a creditor of the proposed ward, may not be appointed guardian and retain that previous professional or business relationship. A person may not be appointed a guardian if he or she is in the employ of any person, agency, government, or corporation that provides service to the proposed ward in a professional or business capacity, except that a person so employed may be appointed if he or she is the spouse, adult child, parent, or sibling of the proposed ward or the court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the proposed ward's best interest. The court may not appoint a guardian in any other circumstance in which a conflict of interest may occur.

(4)  TRUST COMPANY, STATE BANK OR SAVINGS ASSOCIATION, OR NATIONAL BANK OR FEDERAL SAVINGS AND LOAN ASSOCIATION.--A trust company, a state banking corporation or state savings association authorized and qualified to exercise fiduciary powers in this state, or a national banking association or federal savings and loan association authorized and qualified to exercise fiduciary powers in this state may act as guardian of the property of the ward.

(5)  NONPROFIT CORPORATE GUARDIAN.--A nonprofit corporation organized for religious or charitable purposes and existing under the laws of this state may be appointed guardian for a ward. If the nonprofit corporate guardian charges fees against the assets or property of the ward for its services, the corporation must employ at least one professional guardian.

(6)  HEALTH CARE PROVIDER.--A provider of health care services to the ward, whether direct or indirect, may not be appointed the guardian of the ward, unless the court specifically finds that there is no conflict of interest with the ward's best interests.

History.--s. 1, ch. 74-106; s. 8, ch. 75-222; s. 4, ch. 79-221; s. 7, ch. 81-27; s. 2, ch. 83-139; s. 26, ch. 89-96; s. 14, ch. 90-271; s. 1, ch. 96-184; s. 5, ch. 96-354; s. 1781, ch. 97-102; s. 48, ch. 98-280; s. 159, ch. 98-403; s. 8, ch. 2000-135; s. 110, ch. 2000-349; s. 4, ch. 2002-195; s. 31, ch. 2004-267.

Note.--Created from former s. 744.27.

744.3115  Advance directives for health care.--In each proceeding in which a guardian is appointed under this chapter, the court shall determine whether the ward, prior to incapacity, has executed any valid advance directive pursuant to chapter 765. If any such advance directive exists, the court shall specify in its order and letters of guardianship what authority, if any, the guardian shall exercise over the surrogate. Pursuant to the grounds listed in s. 765.105, the court, upon its own motion, may, with notice to the surrogate and any other appropriate parties, modify or revoke the authority of the surrogate to make health care decisions for the ward.

History.--s. 6, ch. 92-199; s. 1, ch. 94-183.

744.312  Considerations in appointment of guardian.--

(1)  Subject to the provisions of subsection (4), the court may appoint any person who is fit and proper and qualified to act as guardian, whether related to the ward or not.

(2)  The court shall give preference to the appointment of a person who:

(a)  Is related by blood or marriage to the ward;

(b)  Has educational, professional, or business experience relevant to the nature of the services sought to be provided;

(c)  Has the capacity to manage the financial resources involved; or

(d)  Has the ability to meet the requirements of the law and the unique needs of the individual case.

(3)  The court shall also:

(a)  Consider the wishes expressed by an incapacitated person as to who shall be appointed guardian;

(b)  Consider the preference of a minor who is age 14 or over as to who should be appointed guardian;

(c)  Consider any person designated as guardian in any will in which the ward is a beneficiary.

(4)  If the person designated is qualified to serve pursuant to s. 744.309, the court shall appoint any standby guardian or preneed guardian, unless the court determines that appointing such person is contrary to the best interests of the ward.

History.--s. 1, ch. 74-106; s. 12, ch. 75-222; s. 1, ch. 77-174; s. 5, ch. 79-221; s. 27, ch. 89-96; s. 15, ch. 90-271.

Note.--Created from former s. 744.35.

744.3125  Application for appointment.--

(1)  Every prospective guardian must complete an application for appointment as guardian. The application must list the person's qualifications to serve as a guardian.

(2)  A person may not be appointed a guardian unless the person discloses in the application form the names of all wards for whom the person is currently acting as a guardian. The application must identify each ward by court file number and circuit court in which the case is pending and must state whether the person is acting as the limited or plenary guardian of the person or property or both.

(3)  This section does not apply to corporate guardians other than nonprofit corporate guardians or to public guardians.

(4)  Nonprofit corporate guardians must file quarterly with the clerk of court disclosure statements that contain the information required under subsections (1) and (2), rather than filing a guardianship application with each petition to be appointed guardian.

History.--s. 29, ch. 89-96; s. 16, ch. 90-271; s. 1075, ch. 97-102.

744.3135  Credit and criminal investigation.--The court may require a nonprofessional guardian and shall require a professional or public guardian, and all employees of a professional guardian who have a fiduciary responsibility to a ward, to submit, at their own expense, to an investigation of the guardian's credit history and to undergo level 2 background screening as required under s. 435.04. The clerk of the court shall obtain fingerprint cards from the Federal Bureau of Investigation and make them available to guardians. Any guardian who is so required shall have his or her fingerprints taken and forward the proper fingerprint card along with the necessary fee to the Florida Department of Law Enforcement for processing. The professional guardian shall pay to the clerk of the court a fee of up to $7.50 for handling and processing professional guardian files. The results of the fingerprint checks shall be forwarded to the clerk of the court who shall maintain the results in a guardian file and shall make the results available to the court. If credit or criminal investigations are required, the court must consider the results of the investigations before appointing a guardian. Professional guardians and all employees of a professional guardian who have a fiduciary responsibility to a ward, so appointed, must resubmit, at their own expense, to an investigation of credit history, and undergo level 1 background screening as required under s. 435.03, at least every 2 years after the date of their appointment. At any time, the court may require guardians or their employees to submit to an investigation of credit history and undergo level 1 background screening as required under s. 435.03. The court must consider the results of these investigations in reappointing a guardian.

(1)  Upon receiving the results of a credit or criminal investigation of any public or professional guardian, the clerk of the court shall forward copies of the results to the Statewide Public Guardianship Office in order that the results may be maintained in the guardian's registration file.

(2)  This section does not apply to a professional guardian, or to the employees of a professional guardian, which is a trust company, a state banking corporation or state savings association authorized and qualified to exercise fiduciary powers in this state, or a national banking association or federal savings and loan association authorized and qualified to exercise fiduciary powers in this state.

History.--s. 30, ch. 89-96; s. 1076, ch. 97-102; s. 2, ch. 97-161; s. 10, ch. 99-277; s. 5, ch. 2002-195; s. 10, ch. 2003-57; s. 114, ch. 2003-402; s. 12, ch. 2004-260; s. 22, ch. 2004-267.

744.3145  Guardian education requirements.--

(1)  Each ward is entitled to a guardian competent to perform the duties of a guardian necessary to protect the interests of the ward.

(2)  Each person appointed by the court to be a guardian, other than a parent who is the guardian of the property of a minor child, must receive a minimum of 8 hours of instruction and training which covers:

(a)  The legal duties and responsibilities of the guardian;

(b)  The rights of the ward;

(c)  The availability of local resources to aid the ward; and

(d)  The preparation of habilitation plans and annual guardianship reports, including financial accounting for the ward's property.

(3)  Each person appointed by the court to be the guardian of the property of his or her minor child must receive a minimum of 4 hours of instruction and training that covers:

(a)  The legal duties and responsibilities of the guardian of the property;

(b)  The preparation of the initial inventory and annual guardianship accountings for the ward's property; and

(c)  Use of guardianship assets.

(4)  Each person appointed by the court to be a guardian must complete the required number of hours of instruction and education within 1 year after his or her appointment as guardian. The instruction and education must be completed through a course approved by the chief judge of the circuit court and taught by a court-approved organization. Court-approved organizations may include, but are not limited to, community or junior colleges, guardianship organizations, and the local bar association or The Florida Bar.

(5)  Expenses incurred by the guardian to satisfy the education requirement may be paid from the ward's estate, unless the court directs that such expenses be paid by the guardian individually.

(6)  The court may, in its discretion, waive some or all of the requirements of this section or impose additional requirements. The court shall make its decision on a case-by-case basis and, in making its decision, shall consider the experience and education of the guardian, the duties assigned to the guardian, and the needs of the ward.

(7)  The provisions of this section do not apply to professional guardians.

History.--s. 31, ch. 89-96; s. 17, ch. 90-271; s. 1077, ch. 97-102; s. 3, ch. 97-161; s. 11, ch. 2003-57.

744.3201  Petition to determine incapacity.

744.3215  Rights of persons determined incapacitated.

744.331  Procedures to determine incapacity.

744.334  Petition for appointment of guardian or professional guardian; contents.

744.3371  Notice of petition for appointment of guardian and hearing.

744.341  Voluntary guardianship.

744.342  Minors; guardianship.

744.344  Order of appointment.

744.345  Letters of guardianship.

744.347  Oath of guardian.

744.351  Bond of guardian.

744.354  Validity of bond.

744.357  Liability of surety.

744.358  Liability of a guardian.

744.3201  Petition to determine incapacity.--

(1)  A petition to determine incapacity of a person may be executed by an adult person.

(2)  The petition must be verified and must:

(a)  State the name, age, and present address of the petitioner and his or her relationship to the alleged incapacitated person;

(b)  State the name, age, county of residence, and present address of the alleged incapacitated person;

(c)  Specify the primary language spoken by the alleged incapacitated person, if known;

(d)  Allege that the petitioner believes the alleged incapacitated person to be incapacitated and specify the factual information on which such belief is based and the names and addresses of all persons known to the petitioner who have knowledge of such facts through personal observations;

(e)  State the name and address of the alleged incapacitated person's attending or family physician, if known;

(f)  State which rights enumerated in s. 744.3215 the alleged incapacitated person is incapable of exercising, to the best of petitioner's knowledge. If the petitioner has insufficient experience to make such judgments, the petition must so state; and

(g)  State the names, relationships, and addresses of the next of kin of the alleged incapacitated person, so far as are known, specifying the dates of birth of any who are minors.

(3)  A copy of any petition for appointment of guardian or emergency temporary guardian, if applicable, shall be filed with the petition to determine incapacity.

History.--s. 33, ch. 89-96; s. 18, ch. 90-271; s. 22, ch. 95-401; s. 1078, ch. 97-102.

744.3215  Rights of persons determined incapacitated.--

(1)  A person who has been determined to be incapacitated retains the right:

(a)  To have an annual review of the guardianship report and plan.

(b)  To have continuing review of the need for restriction of his or her rights.

(c)  To be restored to capacity at the earliest possible time.

(d)  To be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation.

(e)  To have a qualified guardian.

(f)  To remain as independent as possible, including having his or her preference as to place and standard of living honored, either as he or she expressed or demonstrated his or her preference prior to the determination of his or her incapacity or as he or she currently expresses his or her preference, insofar as such request is reasonable.

(g)  To be properly educated.

(h)  To receive prudent financial management for his or her property and to be informed how his or her property is being managed, if he or she has lost the right to manage property.

(i)  To receive necessary services and rehabilitation.

(j)  To be free from discrimination because of his or her incapacity.

(k)  To have access to the courts.

(l)  To counsel.

(m)  To receive visitors and communicate with others.

(n)  To notice of all proceedings related to determination of capacity and guardianship, unless the court finds the incapacitated person lacks the ability to comprehend the notice.

(o)  To privacy.

(2)  Rights that may be removed from a person by an order determining incapacity include the right:

(a)  To marry.

(b)  To vote.

(c)  To personally apply for government benefits.

(d)  To have a driver's license.

(e)  To travel.

(f)  To seek or retain employment.

(3)  Rights that may be removed from a person by an order determining incapacity and which may be delegated to the guardian include the right:

(a)  To contract.

(b)  To sue and defend lawsuits.

(c)  To apply for government benefits.

(d)  To manage property or to make any gift or disposition of property.

(e)  To determine his or her residence.

(f)  To consent to medical and mental health treatment.

(g)  To make decisions about his or her social environment or other social aspects of his or her life.

(4)  Without first obtaining specific authority from the court, as described in s. 744.3725, a guardian may not:

(a)  Commit the ward to a facility, institution, or licensed service provider without formal placement proceeding, pursuant to chapter 393, chapter 394, or chapter 397.

(b)  Consent on behalf of the ward to the performance on the ward of any experimental biomedical or behavioral procedure or to the participation by the ward in any biomedical or behavioral experiment. The court may permit such performance or participation only if:

1.  It is of direct benefit to, and is intended to preserve the life of or prevent serious impairment to the mental or physical health of the ward; or

2.  It is intended to assist the ward to develop or regain his or her abilities.

(c)  Initiate a petition for dissolution of marriage for the ward.

(d)  Consent on behalf of the ward to termination of the ward's parental rights.

(e)  Consent on behalf of the ward to the performance of a sterilization or abortion procedure on the ward.

History.--s. 34, ch. 89-96; s. 19, ch. 90-271; s. 36, ch. 93-39; s. 13, ch. 94-183; s. 44, ch. 96-169; s. 6, ch. 96-354; s. 1782, ch. 97-102.

744.331  Procedures to determine incapacity.--

(1)  NOTICE OF PETITION TO DETERMINE INCAPACITY.--Notice of the filing of a petition to determine incapacity and a petition for the appointment of a guardian if any and copies of the petitions must be served on and read to the alleged incapacitated person. The notice and copies of the petitions must also be given to the attorney for the alleged incapacitated person, and served upon all next of kin identified in the petition. The notice must state the time and place of the hearing to inquire into the capacity of the alleged incapacitated person and that an attorney has been appointed to represent the person and that, if she or he is determined to be incapable of exercising certain rights, a guardian will be appointed to exercise those rights on her or his behalf.

(2)  ATTORNEY FOR THE ALLEGED INCAPACITATED PERSON.--

(a)  The court shall appoint an attorney for each person alleged to be incapacitated in all cases involving a petition for adjudication of incapacity. The alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court.

(b)  Any attorney representing an alleged incapacitated person may not serve as guardian of the alleged incapacitated person or as counsel for the guardian of the alleged incapacitated person or the petitioner.

(3)  EXAMINING COMMITTEE.--

(a)  Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court's discretion, advise the court in the form of an expert opinion. One of three members of the committee must have knowledge of the type of incapacity alleged in the petition. Unless good cause is shown, the attending or family physician may not be appointed to the committee. If the attending or family physician is available for consultation, the committee must consult with the physician. Members of the examining committee may not be related to or associated with one another or with the petitioner or the person alleged to be totally or partially incapacitated. A member may not be employed by any private or governmental agency that has custody of, or furnishes, services or subsidies, directly or indirectly, to the person or the family of the person alleged to be incapacitated or for whom a guardianship is sought. A petitioner may not serve as a member of the examining committee. Members of the examining committee must be able to communicate, either directly or through an interpreter, in the language that the alleged incapacitated person speaks or to communicate in a medium understandable to the alleged incapacitated person if she or he is able to communicate.

(b)  Each member of the examining committee shall examine the person. The examining committee shall determine the alleged incapacitated person's ability to exercise those rights specified in s. 744.3215. In addition to the examination, the examining committee shall have access to, and may consider, previous examinations of the person, including, but not limited to, habilitation plans, school records, and psychological and psychosocial reports voluntarily offered for use by the alleged incapacitated person. The examining committee shall submit a report within 15 days after appointment.

(c)  The examination of the alleged incapacitated person must include a comprehensive examination, a report of which shall be filed by the examining committee as part of its written report. The comprehensive examination report should be an essential element, but not necessarily the only element, used in making a capacity and guardianship decision. The comprehensive examination must include, if indicated:

1.  A physical examination;

2.  A mental health examination; and

3.  A functional assessment.

If any of these three aspects of the examination is not indicated or cannot be accomplished for any reason, the written report must explain the reasons for its omission.

(d)  The committee's written report must include:

1.  To the extent possible, a diagnosis, prognosis, and recommended course of treatment.

2.  An evaluation of the alleged incapacitated person's ability to retain her or his rights, including, without limitation, the rights to marry; vote; contract; manage or dispose of property; have a driver's license; determine her or his residence; consent to medical treatment; and make decisions affecting her or his social environment.

3.  The results of the comprehensive examination and the committee members' assessment of information provided by the attending or family physician, if any.

4.  A description of any matters with respect to which the person lacks the capacity to exercise rights, the extent of that incapacity, and the factual basis for the determination that the person lacks that capacity.

5.  The signature of each member of the committee.

(e)  A copy of the report must be served on the petitioner and on the attorney for the alleged incapacitated person within 3 days after the report is filed and at least 5 days before the hearing on the petition.

(4)  DISMISSAL OF PETITION.--If the examining committee concludes that the alleged incapacitated person is not incapacitated in any respect, the court shall dismiss the petition.

(5)  ADJUDICATORY HEARING.--

(a)  Upon appointment of the examining committee, the court shall set the date upon which the petition will be heard. The date for the adjudicatory hearing must be set no more than 14 days after the filing of the report of the examining committee, unless good cause is shown. The adjudicatory hearing must be conducted at the time and place specified in the notice of hearing and in a manner consistent with due process.

(b)  The alleged incapacitated person must be present at the adjudicatory hearing, unless waived by the alleged incapacitated person or the person's attorney or unless good cause can be shown for her or his absence. Determination of good cause rests in the sound discretion of the court.

(c)  In the adjudicatory hearing on a petition alleging incapacity, the partial or total incapacity of the person must be established by clear and convincing evidence.

(6)  ORDER DETERMINING INCAPACITY.--If, after making findings of fact on the basis of clear and convincing evidence, the court finds that a person is incapacitated with respect to the exercise of a particular right, or all rights, the court shall enter a written order determining such incapacity. A person is determined to be incapacitated only with respect to those rights specified in the order.

(a)  The court shall make the following findings:

1.  The exact nature and scope of the person's incapacities;

2.  The exact areas in which the person lacks capacity to make informed decisions about care and treatment services or to meet the essential requirements for her or his physical or mental health or safety;

3.  The specific legal disabilities to which the person is subject; and

4.  The specific rights that the person is incapable of exercising.

(b)  In any order declaring a person incapacitated the court must find that alternatives to guardianship were considered and that no alternative to guardianship will sufficiently address the problems of the ward.

(c)  In determining that a person is totally incapacitated, the order must contain findings of fact demonstrating that the individual is totally without capacity to care for herself or himself or her or his property.

(d)  An order adjudicating a person to be incapacitated constitutes proof of such incapacity until further order of the court.

(e)  After the order determining that the person is incapacitated has been filed with the clerk, it must be served on the incapacitated person. The person is deemed incapacitated only to the extent of the findings of the court. The filing of the order is notice of the incapacity. An incapacitated person retains all rights not specifically removed by the court.

(f)  When an order is entered which determines that a person is incapable of exercising delegable rights, a guardian must be appointed to exercise those rights.

(7)  FEES.--

(a)  The examining committee and any attorney appointed under subsection (2) are entitled to reasonable fees to be determined by the court.

(b)  The fees awarded under paragraph (a) shall be paid by the guardian from the property of the ward or, if the ward is indigent, by the state. The state shall have a creditor's claim against the guardianship property for any amounts paid under this section. The state may file its claim within 90 days after the entry of an order awarding attorney ad litem fees. If the state does not file its claim within the 90-day period, the state is thereafter barred from asserting the claim. Upon petition by the state for payment of the claim, the court shall enter an order authorizing immediate payment out of the property of the ward. The state shall keep a record of such payments.

(c)  If the petition is dismissed, costs of the proceeding may be assessed against the petitioner if the court finds the petition to have been filed in bad faith.

History.--ss. 9, 26, ch. 75-222; s. 4, ch. 77-328; s. 1, ch. 78-342; s. 6, ch. 79-221; s. 35, ch. 89-96; s. 20, ch. 90-271; s. 4, ch. 91-303; s. 5, ch. 91-306; s. 7, ch. 96-354; s. 1783, ch. 97-102; s. 76, ch. 2004-265.

744.334  Petition for appointment of guardian or professional guardian; contents.--

(1)  Every petition for the appointment of a guardian shall be verified by the petitioner and shall contain statements, to the best of petitioner's knowledge and belief, showing the name, age, residence, and post office address of the alleged incapacitated person or minor; the nature of her or his incapacity, if any; the extent of guardianship desired, either plenary or limited; the residence and post office address of the petitioner; the names and addresses of the next of kin of the incapacitated person or minor, if known to the petitioner; the name of the proposed guardian; the relationship and previous relationship of the proposed guardian to the ward; the nature and value of property subject to the guardianship; and the reasons why this person should be appointed guardian. If a willing and qualified guardian cannot be located, the petition must so state.

(2)  The petition for appointment of a professional guardian must comply with the provisions of subsection (1), and must state that the petitioner is a professional guardian.

History.--ss. 11, 26, ch. 75-222; s. 7, ch. 79-221; s. 36, ch. 89-96; s. 21, ch. 90-271; s. 8, ch. 96-354; s. 1784, ch. 97-102.

744.3371  Notice of petition for appointment of guardian and hearing.--

(1)  When the petition for appointment of a guardian for an incapacitated person is heard upon the conclusion of the hearing in which the person is determined to be incapacitated, the court shall hear the petition without further notice. If the petition is heard on a later date, reasonable notice of the hearing must be served on the incapacitated person, the person's attorney, if any, any guardian then serving, the person's next of kin, and such other interested persons as the court may direct.

(2)  When a petition for appointment of a guardian for a minor is filed, formal notice must be served on the minor's parents. If the petitioner has custody of the minor and the petition alleges that, after diligent search, the parents cannot be found, the parents may be served by informal notice, delivered to their last known address or addresses. When a parent petitions for appointment as guardian for his or her minor child, no notice is necessary unless the other parent is living and does not consent to the appointment.

History.--s. 22, ch. 90-271; s. 1079, ch. 97-102.

744.341  Voluntary guardianship.--

(1)  Without adjudication of incapacity, the court shall appoint a guardian of the property of a resident or nonresident person who, though mentally competent, is incapable of the care, custody, and management of his or her estate by reason of age or physical infirmity and who has voluntarily petitioned for the appointment. The petition shall be accompanied by a certificate of a licensed physician specifying that he or she has examined the petitioner and that the petitioner is competent to understand the nature of the guardianship and his or her delegation of authority. Notice of hearing on any petition for appointment and for authority to act shall be given to the petitioner and to any person to whom the petitioner requests that notice be given. Such request may be made in the petition for appointment of guardian or in a subsequent written request for notice signed by the petitioner.

(2)  If requested in the petition for appointment of a guardian brought under this section, the court may direct the guardian to take possession of less than all of the ward's property and of the rents, income, issues, and profits from it. In such case, the court shall specify in its order the property to be included in the guardianship estate, and the duties and responsibilities of the guardian appointed under this section will extend only to such property.

(3)  Unless the voluntary guardianship is limited pursuant to subsection (2), any guardian appointed under this section has the same duties and responsibilities as are provided by law for plenary guardians of the property, generally.

(4)  A voluntary guardianship may be terminated by the ward by filing a notice with the court that the voluntary guardianship is terminated. A copy of the notice must be served on all interested persons.

History.--ss. 11, 26, ch. 75-222; s. 9, ch. 79-221; s. 4, ch. 84-31; s. 38, ch. 89-96; s. 23, ch. 90-271; s. 1080, ch. 97-102.

744.342  Minors; guardianship.--Upon petition, the court may appoint a guardian for a minor without appointing an examining committee or conducting an adjudicatory hearing pursuant to s. 744.331.

History.--s. 71, ch. 90-271.

744.344  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. 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.

(2)  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.

(3)  If a petition for appointment of 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.

(4)  If a petition for the appointment of a guardian has not been filed 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.

(5)  A plenary guardian shall exercise all delegable rights and powers of the incapacitated person.

(6)  A person for whom a limited guardian has been appointed retains all legal rights except those which 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.

Note.--Created from former s. 744.34.

744.345  Letters of guardianship.--Letters of guardianship shall be issued to the guardian and shall specify whether the guardianship pertains to the person, or the property, or both, of the ward. The letters must state whether the guardianship is plenary or limited, and, if limited, the letters must state the powers and duties of the guardian. If the guardianship is limited, the letters shall state whether or not and to what extent the guardian is authorized to act on behalf of the ward with regard to any advance directive previously executed by the ward.

History.--s. 1, ch. 74-106; s. 12, ch. 75-222; s. 28, ch. 89-96; s. 25, ch. 90-271; s. 7, ch. 92-199; s. 2, ch. 94-183.

Note.--Created from former s. 744.40; former s. 744.313.

744.347  Oath of guardian.--Before exercising his or her authority as guardian, every guardian shall take an oath that he or she will faithfully perform his or her duties as guardian. This oath is not jurisdictional.

History.--s. 1, ch. 74-106; ss. 19, 26, ch. 75-222; s. 40, ch. 89-96; s. 1082, ch. 97-102.

Note.--Created from former s. 744.36.

744.351  Bond of guardian.--

(1)  Before exercising his or her authority as guardian, every person appointed a guardian of the property of a ward in this state shall file a bond with surety as prescribed in s. 45.011 to be approved by the clerk. The bond shall be payable to the Governor of the state and the Governor's successors in office, conditioned on the faithful performance of all duties by the guardian. In form the bond shall be joint and several. When the petitioner or guardian presents compelling reasons, the court may waive a bond or require the use of a designated financial institution as defined in s. 655.005(1).

(2)  When the sureties on a bond are natural persons, the guardian shall be required to file with the annual guardianship report proof satisfactory to the court that the sureties are alive and solvent.

(3)  The penal sum of a guardian's bond shall be fixed by the court, and it must be in an amount not less than the full amount of the cash on hand and on deposit belonging to the ward and subject to the control of the guardian, plus the value of the notes and bonds owned by the ward that are payable to bearer, and plus the value of all other intangible personal property, in whatever form, owned by the ward which has a market value which readily can be fixed and which intangible personal property readily can be traded for cash or its equivalent.

(4)  For good cause, the court may require, or increase or reduce the amount of, bond or change or release the surety.

(5)  Financial institutions as defined in s. 744.309(4) and public guardians authorized by law to be guardians shall not be required to file bonds.

(6)  When it is expedient in the judgment of any court having jurisdiction of any guardianship property, because the size of the bond required of the guardian is burdensome, or for other cause, the court may order, in lieu of a bond or in addition to a lesser bond, that the guardian place all or part of the property of the ward in a designated financial institution under the same conditions and limitations as are contained in s. 69.031. A designated financial institution shall also include a dealer, as defined in s. 517.021(6), if the dealer is a member of the Security Investment Protection Corporation and is doing business in the state.

History.--s. 1, ch. 74-106; ss. 19, 26, ch. 75-222; s. 1, ch. 77-174; s. 2, ch. 78-342; s. 2, ch. 86-120; s. 41, ch. 89-96; s. 26, ch. 90-271; s. 30, ch. 95-401; s. 9, ch. 96-354; s. 1785, ch. 97-102.

Note.--Created from former s. 744.38.

744.354  Validity of bond.--No bond executed by any guardian shall be invalid because of an informality in it or because of an informality or illegality in the appointment of the guardian. The bond shall have the same force and effect as if the bond had been executed in proper form and the appointment had been legally made.

History.--s. 1, ch. 74-106; ss. 19, 26, ch. 75-222; s. 42, ch. 89-96.

Note.--Created from former s. 744.42.

744.357  Liability of surety.--No surety for a guardian shall be charged beyond the property of the ward.

History.--s. 1, ch. 74-106; ss. 19, 26, ch. 75-222; s. 43, ch. 89-96; s. 27, ch. 90-271.

Note.--Created from former s. 744.43.

744.358  Liability of a guardian.--

(1)  A guardian is not liable, solely because of the guardianship, for the debts, contracts, or torts of her or his ward.

(2)  In dealing with the ward's property, a guardian is subject to the standards set forth in s. 518.11.

History.--s. 44, ch. 89-96; s. 28, ch. 90-271; s. 1083, ch. 97-102.

744.361  Powers and duties of guardian.

744.362  Initial guardianship report.

744.363  Initial guardianship plan.

744.365  Verified inventory.

744.367  Duty to file annual guardianship report.

744.3675  Annual guardianship plan.

744.3678  Annual accounting.

744.3679  Simplified accounting procedures in certain cases.

744.368  Responsibilities of the clerk of the circuit court.

744.3685  Order requiring guardianship report; contempt.

744.369  Judicial review of guardianship reports.

744.3701  Inspection of report.

744.371  Relief to be granted.

744.3715  Petition for interim judicial review.

744.372  Judicial review of guardianships.

744.3725  Procedure for extraordinary authority.

744.373  Production of property.

744.3735  Annual appearance of the guardian.

744.374  Payments to guardian.

744.381  Appraisals.

744.384  Subsequently discovered or acquired property.

744.387  Settlement of claims.

744.391  Actions by and against guardian or ward.

744.394  Suspension of statutes of limitations in favor of guardian.

744.397  Application of income of property of ward.

744.421  Petition for support of ward's dependents.

744.441  Powers of guardian upon court approval.

744.444  Power of guardian without court approval.

744.446  Conflicts of interest; prohibited activities; court approval; breach of fiduciary duty.

744.447  Petition for authorization to act.

744.451  Order.

744.454  Guardian forbidden to borrow or purchase; exceptions.

744.457  Conveyance of various property rights by guardians of the property.

744.461  Purchasers and lenders protected.

744.361  Powers and duties of guardian.--

(1)  The guardian of an incapacitated person may exercise only those rights that have been removed from the ward and delegated to the guardian. The guardian of a minor shall exercise the powers of a plenary guardian.

(2)  The guardian shall file an initial guardianship report in accordance with s. 744.362.

(3)  The guardian shall file a guardianship report annually in accordance with s. 744.367.

(4)  The guardian of the person shall implement the guardianship plan.

(5)  When two or more guardians have been appointed, the guardians shall consult with each other.

(6)  A guardian who is given authority over any property of the ward shall:

(a)  Protect and preserve the property and invest it prudently as defined in s. 737.302, apply it as provided in s. 744.397, and account for it faithfully.

(b)  Perform all other duties required of him or her by law.

(c)  At the termination of the guardianship, deliver the property of the ward to the person lawfully entitled to it.

(7)  The guardian shall observe the standards in dealing with the guardianship property that would be observed by a prudent person dealing with the property of another, and, if the guardian has special skills or is named guardian on the basis of representations of special skills or expertise, he or she is under a duty to use those skills.

(8)  The guardian, if authorized by the court, shall take possession of all of the ward's property and of the rents, income, issues, and profits from it, whether accruing before or after the guardian's appointment, and of the proceeds arising from the sale, lease, or mortgage of the property or of any part. All of the property and the rents, income, issues, and profits from it are assets in the hands of the guardian for the payment of debts, taxes, claims, charges, and expenses of the guardianship and for the care, support, maintenance, and education of the ward or the ward's dependents, as provided for under the terms of the guardianship plan or by law.

History.--s. 1, ch. 74-106; ss. 6, 26, ch. 75-222; s. 45, ch. 89-96; s. 29, ch. 90-271; s. 1084, ch. 97-102.

Note.--Created from former ss. 744.48, 744.49.

744.362  Initial guardianship report.--

(1)  Each guardian shall file with the court an initial guardianship report within 60 days after her or his letters of guardianship are signed. The initial guardianship report for a guardian of the property must consist of a verified inventory. The initial report for a guardian of the person must consist of an initial guardianship plan. The initial report shall be served on the ward, unless the ward is a minor under the age of 14 years or is totally incapacitated, and the attorney for the ward. Either the ward or the ward's attorney may request a hearing concerning the adequacy of the report.

(2)  Review of the initial guardianship report and representation of the ward during an objection thereto, if any, shall be the appointed attorney's final official action on behalf of the ward. Thereafter, the court-appointed attorney is no longer obligated to represent the ward.

History.--s. 46, ch. 89-96; s. 30, ch. 90-271; s. 24, ch. 92-200; s. 23, ch. 95-401; s. 1085, ch. 97-102.

744.363  Initial guardianship plan.--

(1)  The initial guardianship plan shall include the following:

(a)  The provision of medical, mental, or personal care services for the welfare of the ward;

(b)  The provision of social and personal services for the welfare of the ward;

(c)  The place and kind of residential setting best suited for the needs of the ward;

(d)  The application of health and accident insurance and any other private or governmental benefits to which the ward may be entitled to meet any part of the costs of medical, mental health, or related services provided to the ward; and

(e)  Any physical and mental examinations necessary to determine the ward's medical and mental health treatment needs.

(2)  The initial guardianship plan for an incapacitated person must be based on the recommendations of the examining committee's examination, as incorporated into the order determining incapacity.

(3)  Unless the ward has been found to be totally incapacitated or is a minor under the age of 14 years, the initial guardianship plan must contain an attestation that the guardian has consulted with the ward and, to the extent reasonable, has honored the ward's wishes consistent with the rights retained by the ward under the plan. To the maximum extent reasonable, the plan must be in accordance with the wishes of the ward.

(4)  The guardianship plan may not restrict the physical liberty of the ward more than reasonably necessary to protect the ward or others from serious physical injury, illness, or disease and to provide the ward with medical care and mental health treatment for the ward's physical and mental health.

(5)  An initial guardianship plan continues in effect until it is amended or replaced by the approval of an annual guardianship plan, until the restoration of capacity or death of the ward, or until the ward, if a minor, reaches the age of 18 years. If there are significant changes in the capacity of the ward to meet the essential requirements for his or her health or safety, the guardian may file a petition to modify the guardianship plan and shall serve notice on all persons who received notice of the plan. At the hearing on such petition, the court may modify the guardianship plan and specify the effective date of such amendment.

(6)  In exercising his or her powers, the guardian shall recognize any rights retained by the ward.

History.--s. 47, ch. 89-96; s. 31, ch. 90-271; s. 1086, ch. 97-102.

744.365  Verified inventory.--

(1)  FILING.--A guardian of the property shall file a verified inventory of the ward's property.

(2)  CONTENTS.--The verified inventory must include the following:

(a)  All property of the ward, real and personal, that has come into the guardian's possession or knowledge, including a statement of all encumbrances, liens, and other secured claims on any item, any claims against the property, and any cause of action accruing to the ward;

(b)  The location of the real and personal property in sufficient detail so that it may be clearly identified or located; and

(c)  A description of all sources of income, including, without limitation, social security benefits and pensions.

(3)  CASH ASSETS.--Along with the verified inventory, the guardian must file a copy of the most current statement of all of the ward's cash assets from all institutions where the cash is on deposit.

(4)  SAFE-DEPOSIT BOX.--

(a)  The initial opening of any safe-deposit box of the ward must be conducted in the presence of an employee of the institution where the box is located. The inventory of the contents of the box also must be conducted in the presence of the employee, who must verify the contents of the box by signing a copy of the inventory. This safe-deposit box inventory shall be filed with the court within 10 days after the box is opened.

(b)  The guardian shall provide the ward with a copy of each signed safe-deposit box inventory unless the ward is a minor or has been adjudicated totally incapacitated or unless the order appointing the guardian states otherwise.

(c)  Nothing may be removed from the ward's safe-deposit box without specific court approval.

(5)  RECORDS RETENTION.--

(a)  The guardian shall maintain substantiating papers and records sufficient to demonstrate the accuracy of the initial inventory for a period of 3 years after her or his discharge. The substantiating papers need not be filed with the court but must be made available for inspection and review at such time and place and before such persons as the court may order.

(b)  As part of the substantiating papers, the guardian must identify by name, address, and occupation, the witness or witnesses, if any, who were present during the initial inventory of the ward's personal property.

(6)  AUDIT FEE.--

(a)  Where the value of the ward's property exceeds $25,000, a guardian shall pay from the ward's property to the clerk of the circuit court a fee of up to $75, upon the filing of the verified inventory, for the auditing of the inventory. Upon petition by the guardian, the court may waive the auditing fee upon a showing of insufficient funds in the ward's estate. Any guardian unable to pay the auditing fee may petition the court for waiver of the fee. The court may waive the fee after it has reviewed the documentation filed by the guardian in support of the waiver.

(b)  An audit fee may not be charged to any ward whose property has a value of less than $25,000.

History.--s. 49, ch. 89-96; s. 32, ch. 90-271; s. 1087, ch. 97-102; s. 115, ch. 2003-402; s. 77, ch. 2004-265.

744.367  Duty to file annual guardianship report.--

(1)  Unless the court requires filing on a calendar-year basis, each guardian of the person shall file with the court an annual guardianship plan within 90 days after the last day of the anniversary month the letters of guardianship were signed, and the plan must cover the coming fiscal year, ending on the last day in such anniversary month. If the court requires calendar-year filing, the guardianship plan must be filed within 90 days after the end of the calendar year.

(2)  Unless the court requires or authorizes filing on a fiscal-year basis, each guardian of the property shall file with the court an annual accounting on or before April 1 of each year. The annual accounting must cover the preceding calendar year. If the court authorizes or directs filing on a fiscal-year basis, the annual accounting must be filed on or before the first day of the fourth month after the end of the fiscal year.

(3)  The annual guardianship report of a guardian of the property must consist of an annual accounting, and the annual report of a guardian of the person of an incapacitated person must consist of an annual guardianship plan. The annual report shall be served on the ward, unless the ward is a minor under the age of 14 years or is totally incapacitated, and on the attorney for the ward, if any. The guardian shall provide a copy to any other person as the court may direct.

(4)  Unless the ward is a minor or has been determined to be totally incapacitated, the guardian shall review a copy of the annual report with the ward, to the extent possible. Within 30 days after the annual report has been filed, any interested person, including the ward, may file written objections to any element of the report, specifying the nature of the objection.

(5)  If the guardian fails to timely file the annual guardianship report, the judge may impose sanctions which may include contempt, removal of the guardian, or other sanctions provided by law in s. 744.3685.

(6)  Notwithstanding any other requirement of this section or unless otherwise directed by the court, the guardian of the property may file the first annual accounting on either a fiscal-year or calendar-year basis. Unless the court directs otherwise, the guardian shall notify the court as to the guardian's filing intention within 30 days from the date the guardian was issued the letter of guardianship. All subsequent annual accountings must be filed on the same accounting period as the first annual accounting unless the court authorizes or directs otherwise. The first accounting period must end within 1 year after the end of the month in which the letters of guardianship were issued to the guardian of the property.

History.--s. 1, ch. 74-106; ss. 6, 26, ch. 75-222; s. 50, ch. 89-96; s. 33, ch. 90-271; s. 25, ch. 92-200; s. 68, ch. 95-211; s. 24, ch. 95-401; s. 10, ch. 96-354.

Note.--Created from former s. 744.482.

744.3675  Annual guardianship plan.--Each guardian of the person must file with the court an annual guardianship plan which updates information about the condition of the ward. The annual plan must specify the current needs of the ward and how those needs are proposed to be met in the coming year.

(1)  Each plan must, if applicable, include:

(a)  Information concerning the residence of the ward, including:

1.  The ward's address at the time of filing the plan;

2.  The name and address of each place where the ward was maintained during the preceding year;

3.  The length of stay of the ward at each place;

4.  A statement of whether the current residential setting is best suited for the current needs of the ward; and

5.  Plans for ensuring during the coming year that the ward is in the best residential setting to meet his or her needs.

(b)  Information concerning the medical condition and needs of the ward, including:

1.  A resume of any professional medical treatment given to the ward during the preceding year;

2.  The report of a physician who examined the ward no more than 90 days before the beginning of the applicable reporting period. Such report must contain an evaluation of the ward's condition and a statement of the current level of capacity of the ward; and

3.  The plan for provision of medical, mental health, and rehabilitative services in the coming year.

(c)  Information concerning the social condition of the ward, including:

1.  The social and personal services currently utilized by the ward;

2.  The social skills of the ward, including a statement of how well the ward maintains interpersonal relationships with others;

3.  A description of the ward's activities at communication and visitation; and

4.  The social needs of the ward.

(2)  Each plan must address the issue of restoration of rights to the ward and include:

(a)  A summary of activities during the preceding year which were designed to increase the capacity of the ward;

(b)  A statement of whether the ward can have any rights restored; and

(c)  A statement of whether restoration of any rights will be sought.

(3)  The court, in its discretion, may require reexamination of the ward by a physician at any time.

History.--s. 51, ch. 89-96; s. 34, ch. 90-271; s. 11, ch. 96-354; s. 1786, ch. 97-102; s. 4, ch. 97-161.

744.3678  Annual accounting.--

(1)  Each guardian of the property must file an annual accounting with the court.

(2)  The annual accounting must include:

(a)  A full and correct account of the receipts and disbursements of all of the ward's property over which the guardian has control and a statement of the ward's property on hand at the end of the accounting period.

(b)  A copy of the annual or year-end statement of all of the ward's cash accounts from each of the institutions where the cash is deposited.

(3)  The guardian must obtain a receipt or canceled check for all expenditures and disbursements made on behalf of the ward. The guardian must preserve the receipts and canceled checks, along with other substantiating papers, for a period of 3 years after his or her discharge. The receipts, checks, and substantiating papers need not be filed with the court but shall be made available for inspection and review at such time and in such place and before such persons as the court may from time to time order.

(4)  The guardian shall pay from the ward's estate to the clerk of the circuit court a fee based upon the following graduated fee schedule, upon the filing of the annual financial return, for the auditing of the return:

(a)  For estates with a value of $25,000 or less the clerk of the court may charge a fee of up to $15.

(b)  For estates with a value of more than $25,000 up to and including $100,000 the clerk of the court may charge a fee of up to $75.

(c)  For estates with a value of more than $100,000 up to and including $500,000 the clerk of the court may charge a fee of up to $150.

(d)  For estates with a value in excess of $500,000 the clerk of the court may charge a fee of up to $225.

Upon petition by the guardian, the court may waive the auditing fee upon a showing of insufficient funds in the ward's estate. Any guardian unable to pay the auditing fee may petition the court for a waiver of the fee. The court may waive the fee after it has reviewed the documentation filed by the guardian in support of the waiver.

(5)  This section does not apply if the court determines that the ward receives income only from social security benefits and the guardian is the ward's representative payee for the benefits.

History.--s. 52, ch. 89-96; ss. 35, 72, ch. 90-271; s. 1088, ch. 97-102; s. 116, ch. 2003-402; s. 13, ch. 2004-260; s. 78, ch. 2004-265; s. 139, ch. 2005-2.

744.3679  Simplified accounting procedures in certain cases.--

(1)  In a guardianship of property, when all assets of the estate are in designated depositories under s. 69.031 and the only transactions that occur in that account are interest accrual, deposits pursuant to settlement, or financial institution service charges, the guardian may elect to file an accounting consisting of:

(a)  The original or a certified copy of the year-end statement of the ward's account from the financial institution; and

(b)  A statement by the guardian under penalty of perjury that the guardian has custody and control of the ward's property as shown in the year-end statement.

(2)  The clerk has no responsibility to monitor or audit the accounts and may not accept a fee for doing so.

(3)  The accounting allowed by subsection (1) is in lieu of the accounting and auditing procedures under ss. 744.3678 and 744.368(1)(f). However, any interested party may seek judicial review as provided in s. 744.3685.

(4)  The guardian need not be represented by an attorney in order to file the annual accounting allowed by subsection (1).

History.--s. 1, ch. 93-102.

744.368  Responsibilities of the clerk of the circuit court.--

(1)  In addition to the duty to serve as the custodian of the guardianship files, the clerk shall review each initial and annual guardianship report to ensure that it contains information about the ward addressing, as appropriate:

(a)  Physical and mental health care;

(b)  Personal and social services;

(c)  The residential setting;

(d)  The application of insurance, private benefits, and government benefits;

(e)  The physical and mental health examinations; and

(f)  The initial verified inventory or the annual accounting.

(2)  The clerk shall, within 30 days after the date of filing of the initial or annual report of the guardian of the person, complete his or her review of the report.

(3)  Within 90 days after the filing of the initial or annual guardianship report by a guardian of the property, the clerk shall audit the verified inventory or the annual accounting. The clerk shall advise the court of the results of the audit.

(4)  The clerk shall report to the court when a report is not timely filed.

History.--s. 53, ch. 89-96; s. 36, ch. 90-271; s. 1089, ch. 97-102.

744.3685  Order requiring guardianship report; contempt.--When a guardian fails to file the guardianship report, the court shall order the guardian to file the report within 15 days after the service of the order upon her or him or show cause why she or he should not be compelled to do so. A copy of the order shall be served on the guardian or on the guardian's resident agent. If the guardian fails to file her or his report within the time specified by the order without good cause, the court may cite the guardian for contempt of court and may fine her or him. The fine may not be paid out of the ward's property.

History.--s. 1, ch. 74-106; ss. 17, 26, ch. 75-222; s. 70, ch. 89-96; s. 37, ch. 90-271; s. 1090, ch. 97-102.

Note.--Created from former s. 745.29; former s. 744.431.

744.369  Judicial review of guardianship reports.--

(1)  The court shall review the initial guardianship report within 60 days after the filing of the clerk's report of findings to the court. The court shall review the annual guardianship report within 30 days after the filing of the clerk's report of findings to the court.

(2)  The court may appoint a general or special magistrate to assist the court in its review function. The court may require the general or special magistrate to conduct random field audits.

(3)  If an initial or annual report is not timely filed, the court shall order the guardian to file the report or to show cause why the report has not been filed within the prescribed time. Service of the order and subsequent proceedings shall be governed by s. 744.3685.

(4)  The court must review the initial and annual guardianship report to determine that the report:

(a)  Meets the needs of the ward;

(b)  Authorizes the guardian to act only in areas in which an adult ward has been declared incapacitated; and

(c)  Conforms to all other requirements of the law.

(5)  Upon examining the initial or annual guardianship report, the court shall enter an order approving or disapproving the report. If the court disapproves the report, the court shall order the guardian to provide a revised report or proof of any item in the report to the court. The guardian shall do so within a reasonable amount of time set by court.

(6)  If the guardian fails to comply with the court order entered pursuant to subsection (5), the court shall take immediate action to compel compliance or to sanction the guardian after a hearing with appropriate notice to the ward, the ward's counsel, if any, the guardian, and the ward's next of kin.

(7)  If an objection has been filed to a report, the court shall set the matter for hearing and shall conduct the hearing within 30 days after the filing of the objection. After the hearing, the court shall enter a written order either approving, or ordering modifications to, the report. If an objection is found to be without merit, the court may assess costs and attorney's fees against the person who made the objection.

(8)  The approved report constitutes the authority for the guardian to act in the forthcoming year. The powers of the guardian are limited by the terms of the report. The annual report may not grant additional authority to the guardian without a hearing, as provided for in s. 744.331, to determine that the ward is incapacitated to act in that matter.

History.--s. 54, ch. 89-96; s. 38, ch. 90-271; s. 1, ch. 99-277; s. 96, ch. 2004-11.

744.3701  Inspection of report.--

(1)  Unless otherwise ordered by the court, any initial, annual, or final guardianship report or amendment thereto is subject to inspection only by the court, the clerk or the clerk's representative, the guardian and the guardian's attorney, and the ward, unless he or she is a minor or has been determined to be totally incapacitated, and the ward's attorney.

(2)  The court may direct disclosure and recording of parts of an initial, annual, or final report in connection with any real property transaction or for such other purpose as the court allows, in its discretion.

History.--s. 39, ch. 90-271; s. 1091, ch. 97-102.

744.371  Relief to be granted.--If it appears from the annual guardianship report that:

(1)  The condition of the ward requires further examination;

(2)  Any change in the proposed care, maintenance, or treatment is needed;

(3)  The ward is qualified for restoration of some or all rights;

(4)  The condition or maintenance of the ward requires the performance or doing of any other thing for the best interest of the ward which is not indicated in the plan; or

(5)  There is any other matter necessary to protect the interests of the ward,

the court shall, after a hearing with appropriate notice, amend the plan or enter any other order necessary to protect the ward.

History.--s. 1, ch. 74-106; ss. 6, 26, ch. 75-222; s. 55, ch. 89-96; s. 40, ch. 90-271.

Note.--Created from former s. 744.484.

744.3715  Petition for interim judicial review.--

(1)  At any time, any interested person, including the ward, may petition the court for review alleging that the guardian is not complying with the guardianship plan or is exceeding his or her authority under the guardianship plan and the guardian is not acting in the best interest of the ward. The petition for review must state the nature of the objection to the guardian's action or proposed action. Upon the filing of any such petition, the court shall review the petition and act upon it expeditiously.

(2)  If the petition for review is found to be without merit, the court may assess costs and attorney's fees against the petitioner.

History.--s. 56, ch. 89-96; s. 41, ch. 90-271; s. 1092, ch. 97-102.

744.372  Judicial review of guardianships.--The court retains jurisdiction over all guardianships. The court shall review the appropriateness and extent of a guardianship annually and:

(1)  If an objection to the terms of the guardianship report has been filed pursuant to s. 744.367;

(2)  If interim review has been requested under s. 744.3715;

(3)  If a person, including the ward, has filed a suggestion of increased capacity; or

(4)  If the guardianship report has not been received and the guardian has failed to respond to a show cause order.

History.--s. 57, ch. 89-96; s. 42, ch. 90-271.

744.3725  Procedure for extraordinary authority.--Before the court may grant authority to a guardian to exercise any of the rights specified in s. 744.3215(4), the court must:

(1)  Appoint an independent attorney to act on the incapacitated person's behalf, and the attorney must have the opportunity to meet with the person and to present evidence and cross-examine witnesses at any hearing on the petition for authority to act;

(2)  Receive as evidence independent medical, psychological, and social evaluations with respect to the incapacitated person by competent professionals or appoint its own experts to assist in the evaluations;

(3)  Personally meet with the incapacitated person to obtain its own impression of the person's capacity, so as to afford the incapacitated person the full opportunity to express his or her personal views or desires with respect to the judicial proceeding and issue before the court;

(4)  Find by clear and convincing evidence that the person lacks the capacity to make a decision about the issue before the court and that the incapacitated person's capacity is not likely to change in the foreseeable future;

(5)  Be persuaded by clear and convincing evidence that the authority being requested is in the best interests of the incapacitated person; and

(6)  In the case of dissolution of marriage, find that the ward's spouse has consented to the dissolution.

The provisions of this section and s. 744.3215(4) are procedural and do not establish any new or independent right to or authority over the termination of parental rights, dissolution of marriage, sterilization, abortion, or the termination of life support systems.

History.--s. 58, ch. 89-96; s. 43, ch.