2020 Legislation Affecting Guardianship Cases

Florida has received a lot of attention for incidents involving guardians and incapacitated person.  While many guardians are honest, hard-working and dedicated, no one wants to see vulnerable adults or children harmed.  In response to recent events, the legislature took action. Laws of Florida 2020-35 includes changes affecting Guardianship proceedings. These changes are effective July 1, 2020.

·         Section 744.312 has been amended to require that the court consider any disqualifying factors under s. 744.309 and conflicts of interest under s. 744.446.

·         Section 744.334, which lists the requirements for a petition for appointment of a guardian, has been amended to require additional information, including reasons for the guardian’s appointment; whether the proposed guardian is a professional; the proposed guardian’s relation to the alleged incapacitated person or minor; any other types of guardianship proceedings or alternatives to guardianship for the alleged incapacitated person or minor; and includes a clearer definition of “alternatives to guardianship.”  A petitioner who is a professional guardian cannot petition for his or her own appointment unless he or she is related to the alleged incapacitated person or minor. A public guardian appointed under s. 744.2006 for a person of limited financial means is excluded from rule prohibiting the petitioner from seeking his or her own appointment.

·          Section 744.363 is amended to require that the initial guardianship plan list any preexisting orders not to resuscitate or other advance directives defined under s. 765.101.

·         The requirements for the annual guardianship under s. 744.367 (the annual report of a guardian of the person and the annual report of a guardian of the property) must include a “declaration of all remuneration receipted by the guardian from any source for services rendered to or on behalf of the ward.”

·         Section 744.3675 has been amended to require that the annual guardianship plan for an adult ward include a list of preexisting orders not to resuscitate and advance health care directives, whether any such directives have been suspended by the court, and the steps taken to locate the advance directives.

·         Section 736.0207 has been amended to require court approval before the guardian may sign a do not resuscitate order. Expedited procedures are provided for the court’s consideration and authorization of a do not resuscitate order.

·         Section 744.446, as amended, prohibits a guardian from offering or receiving any form of kickback or indirect compensation for service as guardian. The amendments also prohibit conflicts of interest relating to the proposed guardian’s business transactions or activities with the ward, the presiding judge, any member of the appointed examining committee, any court employee involved in the guardianship process, or the attorney for the ward. 

The text of the new legislation can be found at :http://laws.flrules.org/2020/35. The Probate Rules Committee is currently drafting rule updates and the forms committee of FLSSI is also drafting updates, but they will not be ready prior to the July 1, 2020 effective date.