I called and had the police come out concerning my alarm system and the fact  that i cannot access my  log in and passcode. I have put in additional police reports concerning this matter and  all the problems with theft, identity theft and  tampering with the internet computer systems. 

I spoke with danielan@cwdlimited.com   who told me that  I needed to send a copy of my receipt.  I had brick house security email me this receipt and i request that an email is sent with the master code to reset my system.  Could you please keep track of when and who and times and dates such a  request is made?  I am trying to find the criminals who seem to keep having access to my information and my life and  who would possibly have access to resetting my security dvr… or  even when and who might be able to have another system like mine and have the  option of having access to the master code.  i wish you had a more secure system for accessing this information but i will alert the police, the brick house security system and  put this information in my website and blog www.mysearchforjustice.com  to keep track of these type of occurrences… i don’t want any  stalker, criminal being  able to access my security  system… to watch me.. or know when i am home or not home…  this is terrifying not having control of your own security system…  and thinking that people where already in my home and they have destroyed the evidence is worse… do not call.. just email the master code thank you mary jean ziska

I am trying once again to reach your company to resolve the issue with my security system and once again i cannot reach anyone. i started my first call for today at 10:28am and it is now 10:49am and i am still on hold.  this is the third day i have tried to reach your company because my security system has been compromised and i cannot log into my camera’s dvr…. i need to get the information to the police i have already emailed the company i bought the system from and the police and you have not contacted me regarding this issue.  

As I was reading this email  I stopped being on hold and spoke with danielaN@cwdlimited.com  She told me that i needed to send a copy of my actual receipt to get the master code to reset my admin log in and passcode.  I did not feel comfortable with that arrangement and wanted to make sure there were additional  security put in place to make sure that i want giving the wrong company or person more personal information.  I am a victim of crime and identity theft add giving out personal information especially for access to my security system makes me feel really uncomfortable.  I thought there woudl be a more secure way to get the master passcode like some sort of security questions… or a log in account that requires the specific serial number of your  dvr box…. 

I don’t want to give any  more people a way to access my home or my security system.  This cwd company  is very unprofessional  in their manner of answering calls… in responding to security breaches.. and the woman actually told me they are only accessible  monday thu fri….. so i guess the criminals only can work on weekends… 

When i asked to speak with this daniela she told me her boss was Ray white but when she put me through to her supervisor phone message the lady was called named cindy rodney….. it sounds and feels very fishy… and doesn’t ring  true that these people would be in charge of all the  security for my system…. how can i verify any of what she said.. and get the master code in a more secure way…. Help!  please email me asap…. whatabtmary@yahoo.com  or maryjeanziska@mysearchforjustice.com  I have had to create a website to document all the  crimes i have had to endure and this system with video cameras was supposed to stop the criminals accessing my home…. now that the entire system is compromised… i have no idea if they have hacked into the system remotely or actually were in my home… my suspicion was /is that they were in my home …. and if they also get a hold of how to  change my passcode and  log in…. then  i am totally screwed because they can reset it after every  crime leaving me with no evidence of the crimes… and if they have already bough system like mine and exchanged the  one that i originally had that had damaging evidence that would   finally put them in jail…. l …. these criminals have stolen my identity. Continue to break into my home.. have stolen my property… my personal information… everything  that has ruined my life… and done so repeatedly  and without any stopping for 12 years!!!! help!!!!!    

A Tender Loving Care Service

Marion Gregory   Director 239-598-1515

naplesmarion@aol.com

Mary Jean Ziska   Assistant Director 239-287-2294

whatabtmary@yahoo.com

— On Fri, 1/27/12, Dominico Scordato <dscordato@brickhousesecurity.com> wrote:

From: Dominico Scordato <dscordato@brickhousesecurity.com>

Subject: Customer in need of support

To: support@cwdlimited.com

Cc: whatabtmary@yahoo.com

Date: Friday, January 27, 2012, 1:26 PM

This is Dominico with Brickhouse Security Tech Support. My customer

was calling to get assistance with the SVAT SYSTEM .

The customer name is Mary Jean Ziska, she can be contacted at

whatabtmary@yahoo.com or 239 234 4065

She has called and left a message, and she has sent a email.

The issue she is having is that her system will not allow her to log

in and she needs to view video footage of a incident.

Please assist her with this.

Thank you

Dominico

Brickhouse Security

Tech Support.

The customer name is Mary Jean Ziska, she can be contacted at
whatabtmary@yahoo.com or 239 234 4065

She has called and left a message, and she has sent a email.

The issue she is having is that her system will not allow her to log
in and she needs to view video footage of a incident.

Please assist her with this.

Thank you

Dominico

Brickhouse Security

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GENERAL PROVISIONS

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.

744.1075 Emergency court monitor.

744.1076 Court orders appointing court monitors and emergency court monitors; reports of court monitors; orders finding no probable cause; public records exemptions.

744.108 Guardian’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. The attorney shall represent the expressed wishes of the alleged incapacitated person to the extent it is consistent with the rules regulating The Florida Bar.

(2) “Audit” means a systematic review of financial and all other documents to ensure compliance with s. 744.368, rules of court, and local procedures using generally accepted accounting principles.

(3) “Clerk” means the clerk or deputy clerk of the court.

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

(5) “Court” means the circuit court.

(6) “Court monitor” means a person appointed by the court under s. 744.107 to provide the court with information concerning a ward.

(7) “Estate” means the property of a ward subject to administration.

(8) “Foreign guardian” means a guardian appointed in another state or country.

(9) “Guardian” means a person who has been appointed by the court to act on behalf of a ward’s person or property, or both.

(a) “Limited guardian” means a guardian who has been appointed by the court to exercise the legal rights and powers specifically designated by court order entered after the court has found that the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property, or after the person has voluntarily petitioned for appointment of a limited guardian.

(b) “Plenary guardian” means a person who has been appointed by the court to exercise all delegable legal rights and powers of the ward after the court has found that the ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property.

(10) “Guardian ad litem” means a person who is appointed by the court having jurisdiction of the guardianship or a court in which a particular legal matter is pending to represent a ward in that proceeding.

(11) “Guardian advocate” means a person appointed by a written order of the court to represent a person with developmental disabilities under s. 393.12. As used in this chapter, the term does not apply to a guardian advocate appointed for a person determined incompetent to consent to treatment under s. 394.4598.

(12) “Incapacitated person” means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.

(a) To “manage property” means to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.

(b) To “meet essential requirements for health or safety” means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.

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

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

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

(16) “Preneed guardian” means a person named in a written declaration to serve as guardian in the event of the incapacity of the declarant as provided in s. 744.3045.

(17) “Professional guardian” means any guardian who has at any time rendered services to three or more wards as their guardian. A person serving as a guardian for two or more relatives as defined in s. 744.309(2) is not considered a professional guardian. A public guardian shall be considered a professional guardian for purposes of regulation, education, and registration.

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

(19) “Standby guardian” means a person empowered to assume the duties of guardianship upon the death or adjudication of incapacity of the last surviving natural or appointed guardian.

(20) “Surrogate guardian” means a guardian designated according to s. 744.442.

(21) “Totally incapacitated” means incapable of exercising any of the rights enumerated in s. 744.3215(2) and (3).

(22) “Ward” means a person for whom a guardian has been appointed.

History.—s. 1, ch. 74-106; s. 2, ch. 75-222; s. 231, ch. 77-104; s. 1, ch. 79-221; s. 3, ch. 80-171; s. 4, ch. 89-96; s. 2, ch. 90-271; s. 1, ch. 96-354; s. 1780, ch. 97-102; s. 6, ch. 2003-57; s. 9, ch. 2004-260; s. 1, ch. 2006-178.

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.—

(1) The court may, upon inquiry from any interested person or upon its own motion in any proceeding over which it has jurisdiction, appoint a monitor. The court shall not appoint as a monitor a family member or any person with a personal interest in the proceedings. The order of appointment shall be served upon the guardian, the ward, and such other persons as the court may determine.

(2) The monitor may investigate, seek information, examine documents, or interview the ward and shall report to the court his or her findings. The report shall be verified and shall be served on the guardian, the ward, and such other persons as the court may determine.

(3) If it appears from the monitor’s report that further action by the court to protect the interests of the ward is necessary, the court shall, after a hearing with notice, enter any order necessary to protect the ward or the ward’s estate, including amending the plan, requiring an accounting, ordering production of assets, freezing assets, suspending a guardian, or initiating proceedings to remove a guardian.

(4) Unless otherwise prohibited by law, a monitor may be allowed a reasonable fee as determined by the court and paid from the property of the ward. No full-time state, county, or municipal employee or officer shall be paid a fee for such investigation and report. If the court finds the motion for court monitor to have been filed in bad faith, the costs of the proceeding, including attorney’s fees, may be assessed against the movant.

History.—ss. 18, 26, ch. 75-222; s. 10, ch. 89-96; s. 4, ch. 90-271; s. 1068, ch. 97-102; s. 2, ch. 2006-77.

744.1075 Emergency court monitor.—

(1)(a) A court, upon inquiry from any interested person or upon its own motion, in any proceeding over which the court has jurisdiction, may appoint a court monitor on an emergency basis without notice. The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the ward will be seriously impaired or that the ward’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. The scope of the matters to be investigated and the powers and duties of the monitor must be specifically enumerated by court order.

(b) The authority of a monitor appointed under this section expires 60 days after the date of appointment or upon a finding of no probable cause, whichever occurs first. The authority of the monitor may be extended for an additional 30 days upon a showing that the emergency conditions still exist.

(2) Within 15 days after the entry of the order of appointment, the monitor shall file his or her report of findings and recommendations to the court. The report shall be verified and may be supported by documents or other evidence.

(3) Upon review of the report, the court shall determine whether there is probable cause to take further action to protect the person or property of the ward. If the court finds no probable cause, the court shall issue an order finding no probable cause and discharging the monitor.

(4)(a) If the court finds probable cause, the court shall issue an order to show cause directed to the guardian or other respondent stating the essential facts constituting the conduct charged and requiring the respondent to appear before the court to show cause why the court should not take further action. The order shall specify the time and place of the hearing with a reasonable time to allow for the preparation of a defense after service of the order.

(b) At any time prior to the hearing on the order to show cause, the court may issue a temporary injunction, a restraining order, or an order freezing assets; may suspend the guardian or appoint a guardian ad litem; or may issue any other appropriate order to protect the physical or mental health or safety or property of the ward. A copy of all such orders or injunctions shall be transmitted by the court or under its direction to all parties at the time of entry of the order or injunction.

(c) Following a hearing on the order to show cause, the court may impose sanctions on the guardian or his or her attorney or other respondent or take any other action authorized by law, including entering a judgment of contempt; ordering an accounting; freezing assets; referring the case to local law enforcement agencies or the state attorney; filing an abuse, neglect, or exploitation complaint with the Department of Children and Family Services; or initiating proceedings to remove the guardian.

Nothing in this subsection shall be construed to preclude the mandatory reporting requirements of chapter 39.

(5) Unless otherwise prohibited by law, a monitor may be allowed a reasonable fee as determined by the court and paid from the property of the ward. No full-time state, county, or municipal employee or officer shall be paid a fee for such investigation and report. If the court finds the motion for a court monitor to have been filed in bad faith, the costs of the proceeding, including attorney’s fees, may be assessed against the movant.

History.—s. 3, ch. 2006-77.

744.1076 Court orders appointing court monitors and emergency court monitors; reports of court monitors; orders finding no probable cause; public records exemptions.—

(1)(a) The order of any court appointing a court monitor pursuant to s. 744.107 or an emergency court monitor pursuant to s. 744.1075 is exempt from s. 24(a), Art. I of the State Constitution.

(b) The reports of an appointed court monitor or emergency court monitor relating to the medical condition, financial affairs, or mental health of the ward are confidential and exempt from s. 24(a), Art. I of the State Constitution. Such reports may be subject to inspection as determined by the court or upon a showing of good cause.

(c) The public records exemptions provided in this subsection expire if a court makes a finding of probable cause, except that information otherwise made confidential or exempt shall retain its confidential or exempt status.

(2) Court orders finding no probable cause pursuant to s. 744.107 or s. 744.1075 are confidential and exempt from s. 24(a), Art. I of the State Constitution; however, such orders may be subject to inspection as determined by the court or upon a showing of good cause.

History.—s. 1, ch. 2006-129; s. 161, ch. 2008-4; s. 1, ch. 2011-204.

744.108 Guardian’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) Sufficient information to identify the professional guardian, as follows:

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

2. If the professional guardian is a partnership or association, the name, address, and employer identification number of the entity.

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

(c) Sufficient information to distinguish a guardian providing guardianship services as a public guardian, individually, through partnership, corporation, or any other business organization.

(4) Prior to registering a professional guardian, the 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 a guardian who is currently registered with the office violates a provision of this chapter, the executive director of the office may suspend or revoke the guardian’s registration. If the executive director denies registration to a professional guardian or suspends or revokes a professional guardian’s registration, the Statewide Public Guardianship Office must send written notification of the denial, suspension, or revocation to the chief judge of each judicial circuit in which the guardian was serving on the day of the office’s decision to deny, suspend, or revoke the 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)(b).

(8) The Department of Elderly Affairs may contract with the Florida Guardianship Foundation or other not-for-profit entity to register professional guardians.

(9) The department or its contractor shall ensure that the clerks of the court and the chief judge of each judicial circuit receive information about each registered professional guardian.

(10) A state college or university or an independent college or university that is located and chartered in Florida, that is accredited by the Commission on Colleges of the Southern Association of Colleges and Schools or the Accrediting Council for Independent Colleges and Schools, and that confers degrees as defined in s. 1005.02(7) may, but is not required to, register as a professional guardian under this section. If a state college or university or independent college or university elects to register as a professional guardian under this subsection, the requirements of subsections (3) and (4) do not apply and the registration must include only the name, address, and employer identification number of the registrant.

History.—s. 3, ch. 2002-195; s. 8, ch. 2003-57; s. 10, ch. 2004-260; s. 2, ch. 2006-178; s. 2, ch. 2009-175.

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(17) and public guardian must receive a minimum of 40 hours of instruction and training. Each professional guardian must receive a minimum of 16 hours of continuing education every 2 calendar years after the year in which the initial 40-hour educational requirement is met. The instruction and education must be completed through a course approved or offered by the 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; s. 32, ch. 2006-178.

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.

PART II

VENUE

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.

PART III

TYPES OF GUARDIANSHIP

744.301 Natural guardians.

744.3021 Guardians of minors.

744.3025 Claims of minors.

744.3031 Emergency temporary guardianship.

744.304 Standby guardianship.

744.3045 Preneed guardian.

744.3046 Preneed guardian for minor.

744.306 Foreign guardians.

744.307 Foreign guardian may manage the property of nonresident ward.

744.308 Resident guardian of the property of nonresident ward.

744.3085 Guardian advocates.

744.301 Natural guardians.—

(1) The mother and father jointly are natural guardians of their own children and of their adopted children, during minority. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom custody of the child is awarded. If the parents are given joint custody, then both 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) Natural 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 amounts received, in the aggregate, do not exceed $15,000.

(3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.

(a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:

1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and

2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.

(b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:

NOTICE TO THE MINOR CHILD’S NATURAL GUARDIAN

READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT, EVEN IF (  name of released party or parties  ) USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM (  name of released party or parties  ) IN A LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND (  name of released party or parties  ) HAS THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.

(c) If a waiver or release complies with paragraph (b) and waives no more than allowed under this subsection, there is a rebuttable presumption that the waiver or release is valid and that any injury or damage to the minor child arose from the inherent risk involved in the activity.

1. To rebut the presumption that the waiver or release is valid, a claimant must demonstrate by a preponderance of the evidence that the waiver or release does not comply with this subsection.

2. To rebut the presumption that the injury or damage to the minor child arose from an inherent risk involved in the activity, a claimant must demonstrate by clear and convincing evidence that the conduct, condition, or other cause resulting in the injury or damage was not an inherent risk of the activity.

3. If a presumption under this paragraph is rebutted, liability and compensatory damages must be established by a preponderance of the evidence.

(d) Nothing in this subsection limits the ability of natural guardians, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a noncommercial activity provider, or its owners, affiliates, employees, or agents, to the extent authorized by common law.

(4) All instruments executed by a natural guardian for the benefit of the ward under the powers specified in this section are binding on the ward. The natural guardian may not, without a court order, use the property of the ward for the guardian’s benefit or to satisfy the guardian’s support obligation to the ward.

History.—s. 1, ch. 74-106; s. 8, ch. 75-166; s. 7, ch. 75-222; s. 1, ch. 77-190; s. 3, ch. 79-221; s. 17, ch. 89-96; s. 22, ch. 92-200; s. 66, ch. 95-211; s. 73, ch. 97-170; s. 11, ch. 2002-195; s. 8, ch. 2005-101; s. 3, ch. 2006-178; s. 2, ch. 2010-27.

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.

744.3025 Claims of minors.—

(1)(a) The court may appoint a guardian ad litem to represent the minor’s interest before approving a settlement of the minor’s portion of the claim in any case in which a minor has a claim for personal injury, property damage, wrongful death, or other cause of action in which the gross settlement of the claim exceeds $15,000.

(b) The court shall appoint a guardian ad litem to represent the minor’s interest before approving a settlement of the minor’s claim in any case in which the gross settlement involving a minor equals or exceeds $50,000.

(c) The appointment of the guardian ad litem must be without the necessity of bond or notice.

(d) The duty of the guardian ad litem is to protect the minor’s interests as described in the Florida Probate Rules.

(e) A court need not appoint a guardian ad litem for the minor if a guardian of the minor has previously been appointed and that guardian has no potential adverse interest to the minor. A court may appoint a guardian ad litem if the court believes a guardian ad litem is necessary to protect the interests of the minor.

(2) Unless waived, the court shall award reasonable fees and costs to the guardian ad litem to be paid out of the gross proceeds of the settlement.

History.—s. 4, ch. 2006-178.

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 90 days after the date of appointment or when a guardian is appointed, whichever occurs first. The authority of the emergency temporary guardian may be extended for an additional 90 days upon a showing that the emergency conditions still exist.

(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.

(8)(a) An emergency temporary guardian shall file a final report no later than 30 days after the expiration of the emergency temporary guardianship.

(b) If an emergency temporary guardian is a guardian for the property, the final report must consist of a verified inventory of the property, as provided in s. 744.365, as of the date the letters of emergency temporary guardianship were issued, a final accounting that gives a full and correct account of the receipts and disbursements of all the property of the ward over which the guardian had control, and a statement of the property of the ward on hand at the end of the emergency temporary guardianship. If the emergency temporary guardian becomes the successor guardian of the property, the final report must satisfy the requirements of the initial guardianship report for the guardian of the property as provided in s. 744.362.

(c) If the emergency temporary guardian is a guardian of the person, the final report must summarize the activities of the temporary guardian with regard to residential placement, medical condition, mental health and rehabilitative services, and the social condition of the ward to the extent of the authority granted to the temporary guardian in the letters of guardianship. If the emergency temporary guardian becomes the successor guardian of the person, the report must satisfy the requirements of the initial report for a guardian of the person as stated in s. 744.362.

(d) A copy of the final report of the emergency temporary guardianship shall be served on the successor guardian and the ward.

History.—s. 19, ch. 89-96; s. 10, ch. 90-271; s. 1070, ch. 97-102; s. 5, ch. 2006-178.

744.304 Standby guardianship.—

(1) Upon a petition by the natural guardians or a guardian appointed under s. 744.3021, the court may appoint a standby guardian of the person or property of a minor. The court may also appoint an alternate to the guardian to act if the standby guardian does not serve or ceases to serve after appointment. Notice of a hearing on the petition must be served on the parents, natural or adoptive, and on any guardian currently serving unless the notice is waived in writing by them or waived by the court for good cause shown.

(2) Upon petition of a currently serving guardian, a standby guardian of the person or property of an incapacitated person may be appointed by the court. Notice of the hearing shall be served on the ward’s next of kin.

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

(4) Within 20 days after assumption of duties as guardian, a standby guardian shall petition for confirmation of appointment. If the court finds the standby guardian to be qualified to serve as guardian under ss. 744.309 and 744.312, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347, shall file a bond, and shall submit to a credit and a criminal history record check as set forth in s. 744.3135, if required. Letters of guardianship must then be issued in the manner provided in s. 744.345.

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

History.—s. 1, ch. 74-106; s. 7, ch. 75-222; s. 1, ch. 77-174; s. 20, ch. 89-96; s. 11, ch. 90-271; s. 1071, ch. 97-102; s. 6, ch. 2006-178.

Note.—Created from former s. 744.72.

744.3045 Preneed guardian.—

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

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

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

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

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

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

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

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

744.3046 Preneed guardian for minor.—

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

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

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

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

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

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

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

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

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

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

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

History.—s. 23, ch. 92-200.

744.306 Foreign guardians.—

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

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

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

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

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

Note.—Created from former s. 744.15.

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

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

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

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

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

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

Note.—Created from former s. 744.16.

744.308 Resident guardian of the property of nonresident ward.—

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

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

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

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

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

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

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

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

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

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

History.—s. 11, ch. 2004-260.

PART IV

GUARDIANS

744.309 Who may be appointed guardian of a resident ward.

744.3115 Advance directives for health care.

744.312 Considerations in appointment of guardian.

744.3125 Application for appointment.

744.3135 Credit and criminal investigation.

744.3145 Guardian education requirements.

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

(1) RESIDENT.—

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

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

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

(a) Related by lineal consanguinity to the ward;

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

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

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

(3) DISQUALIFIED PERSONS.—No person who has been convicted of a felony or who, from any incapacity or illness, is incapable of discharging the duties of a guardian, or who is otherwise unsuitable to perform the duties of a guardian, shall be appointed to act as guardian. Further, no person who has been judicially determined to have committed abuse, abandonment, or neglect against a child as defined in s. 39.01 or s. 984.03(1), (2), and (37), or who has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under s. 435.04 or similar statute of another jurisdiction, shall be appointed to act as a guardian. Except as provided in subsection (5) or subsection (6), a person who provides substantial services to the proposed ward in a professional or business capacity, or a creditor of the proposed ward, may not be appointed guardian and retain that previous professional or business relationship. A person may not be appointed a guardian if he or she is in the employ of any person, agency, government, or corporation that provides service to the proposed ward in a professional or business capacity, except that a person so employed may be appointed if he or she is the spouse, adult child, parent, or sibling of the proposed ward or the court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the proposed ward’s best interest. The court may not appoint a guardian in any other circumstance in which a conflict of interest may occur.

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

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

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

History.—s. 1, ch. 74-106; s. 8, ch. 75-222; s. 4, ch. 79-221; s. 7, ch. 81-27; s. 2, ch. 83-139; s. 26, ch. 89-96; s. 14, ch. 90-271; s. 1, ch. 96-184; s. 5, ch. 96-354; s. 1781, ch. 97-102; s. 48, ch. 98-280; s. 159, ch. 98-403; s. 8, ch. 2000-135; s. 110, ch. 2000-349; s. 4, ch. 2002-195; s. 31, ch. 2004-267; s. 53, ch. 2010-114.

Note.—Created from former s. 744.27.

744.3115 Advance directives for health care.—In each proceeding in which a guardian is appointed under this chapter, the court shall determine whether the ward, prior to incapacity, has executed any valid advance directive under chapter 765. If any advance directive exists, the court shall specify in its order and letters of guardianship what authority, if any, the guardian shall exercise over the 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. For purposes of this section, the term “health care decision” has the same meaning as in s. 765.101.

History.—s. 6, ch. 92-199; s. 1, ch. 94-183; s. 7, ch. 2006-178.

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.—

(1) 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. If a credit or criminal history record check is required, the court must consider the results of any investigation before appointing a guardian. At any time, the court may require a guardian or the guardian’s employees to submit to an investigation of the person’s credit history and complete a level 1 background screening as set forth in s. 435.03. The court shall consider the results of any investigation when reappointing a guardian. The clerk of the court shall maintain a file on each guardian appointed by the court and retain in the file documentation of the result of any investigation conducted under this section. A professional guardian must pay the clerk of the court a fee of up to $7.50 for handling and processing professional guardian files.

(2) For nonprofessional guardians, the court shall accept the satisfactory completion of a criminal history record check as described in this subsection. A nonprofessional guardian satisfies the requirements of this section by undergoing a state and national criminal history record check using a fingerprint card. The clerk of the court shall obtain fingerprint cards from the Federal Bureau of Investigation and make them available to nonprofessional guardians. Any nonprofessional guardian who is so required shall have his or her fingerprints taken and forward the completed fingerprint card along with the necessary fee to the Department of Law Enforcement for processing. The results of the fingerprint card criminal history record check shall be forwarded to the clerk of the court, who shall maintain the results in the nonprofessional guardian’s file and make the results available to the court.

(3) For professional guardians, the court and the Statewide Public Guardianship Office shall accept the satisfactory completion of a criminal history record check by any method described in this subsection. A professional guardian satisfies the requirements of this section by undergoing:

(a) An electronic fingerprint criminal history record check. A professional guardian may use any electronic fingerprinting equipment used for criminal history record checks. The Statewide Public Guardianship Office shall adopt a rule detailing the acceptable methods for completing an electronic fingerprint criminal history record check under this section. The professional guardian shall pay the actual costs incurred by the Federal Bureau of Investigation and the Department of Law Enforcement for the criminal history record check. The entity completing the record check must immediately send the results of the criminal history record check to the clerk of the court and the Statewide Public Guardianship Office. The clerk of the court shall maintain the results in the professional guardian’s file and shall make the results available to the court; or

(b) A criminal history record check using a fingerprint card. 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 Department of Law Enforcement for processing. The results of the fingerprint card criminal history record checks shall be forwarded to the clerk of the court, who shall maintain the results in the guardian’s file and make the results available to the court and the Statewide Public Guardianship Office.

(4)(a) A professional guardian, and each employee of a professional guardian who has a fiduciary responsibility to a ward, must complete, at his or her own expense, a level 2 background screening as set forth in s. 435.04 before and at least once every 5 years after the date the guardian is registered. A professional guardian, and each employee of a professional guardian who has a fiduciary responsibility to a ward, must complete, at his or her own expense, a level 1 background screening as set forth in s. 435.03 at least once every 2 years after the date the guardian is registered. However, a professional guardian is not required to resubmit fingerprints for a criminal history record check if he or she has been screened using electronic fingerprinting equipment and the fingerprints are retained by the Department of Law Enforcement in order to notify the clerk of the court of any crime charged against the person in this state or elsewhere, as appropriate.

(b) All fingerprints electronically submitted to the Department of Law Enforcement under this section shall be retained by the Department of Law Enforcement in a manner provided by rule and entered in the statewide automated fingerprint identification system authorized by s. 943.05(2)(b). The fingerprints shall thereafter be available for all purposes and uses authorized for arrest fingerprint cards entered in the Criminal Justice Information Program under s. 943.051.

(c) The Department of Law Enforcement shall search all arrest fingerprint cards received under s. 943.051 against the fingerprints retained in the statewide automated fingerprint identification system under paragraph (b). Any arrest record that is identified with the fingerprints of a person described in this paragraph must be reported to the clerk of court. The clerk of court must forward any arrest record received for a professional guardian to the Statewide Public Guardianship Office within 5 days. Each professional guardian who elects to submit fingerprint information electronically shall participate in this search process by paying an annual fee to the Statewide Public Guardianship Office of the Department of Elderly Affairs and by informing the clerk of court and the Statewide Public Guardianship Office of any change in the status of his or her guardianship appointment. The amount of the annual fee to be imposed for performing these searches and the procedures for the retention of professional guardian fingerprints and the dissemination of search results shall be established by rule of the Department of Law Enforcement. At least once every 5 years, the Statewide Public Guardianship Office must request that the Department of Law Enforcement forward the fingerprints maintained under this section to the Federal Bureau of Investigation.

(5)(a) A professional guardian, and each employee of a professional guardian who has a fiduciary responsibility to a ward, must complete, at his or her own expense, an investigation of his or her credit history before and at least once every 2 years after the date of the guardian’s registration with the Statewide Public Guardianship Office.

(b) The Statewide Public Guardianship Office shall adopt a rule detailing the acceptable methods for completing a credit investigation under this section. If appropriate, the Statewide Public Guardianship Office may administer credit investigations. If the office chooses to administer the credit investigation, the office may adopt a rule setting a fee, not to exceed $25, to reimburse the costs associated with the administration of a credit investigation.

(6) The Statewide Public Guardianship Office may inspect at any time the results of any credit or criminal history record check of a public or professional guardian conducted under this section. The office shall maintain copies of the credit or criminal history record check results in the guardian’s registration file. If the results of a credit or criminal investigation of a public or professional guardian have not been forwarded to the Statewide Public Guardianship Office by the investigating agency, the clerk of the court shall forward copies of the results of the investigations to the office upon receiving them.

(7) The requirements of this section do not apply to a professional guardian, or to the employees of a professional guardian, that is a trust company, a state banking corporation or state savings association authorized and qualified to exercise fiduciary powers in this state, or a national banking association or federal savings and loan association authorized and qualified to exercise fiduciary powers in this state.

History.—s. 30, ch. 89-96; s. 1076, ch. 97-102; s. 2, ch. 97-161; s. 10, ch. 99-277; s. 5, ch. 2002-195; s. 10, ch. 2003-57; s. 114, ch. 2003-402; s. 12, ch. 2004-260; s. 22, ch. 2004-267; s. 8, ch. 2006-178; s. 1, ch. 2007-127.

744.3145 Guardian education requirements.—

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

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

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

(b) The rights of the ward;

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

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

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

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

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

(c) Use of guardianship assets.

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

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

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

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

History.—s. 31, ch. 89-96; s. 17, ch. 90-271; s. 1077, ch. 97-102; s. 3, ch. 97-161; s. 11, ch. 2003-57; s. 9, ch. 2006-178.

PART V

ADJUDICATION OF INCAPACITY AND

APPOINTMENT OF GUARDIANS

744.3201 Petition to determine incapacity.

744.3215 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) NOTICE OF PETITION TO DETERMINE INCAPACITY.—Notice of the filing of a petition to determine incapacity and a petition for the appointment of a guardian if any and copies of the petitions must be served on and read to the alleged incapacitated person. The notice and copies of the petitions must also be given to the attorney for the alleged incapacitated person, and served upon all next of kin identified in the petition. The notice must state the time and place of the hearing to inquire into the capacity of the alleged incapacitated person and that an attorney has been appointed to represent the person and that, if she or he is determined to be incapable of exercising certain rights, a guardian will be appointed to exercise those rights on her or his behalf.

(2) ATTORNEY FOR THE ALLEGED INCAPACITATED PERSON.—

(a) When a court appoints an attorney for an alleged incapacitated person, the court must appoint the office of criminal conflict and civil regional counsel or a private attorney as prescribed in s. 27.511(6). A private attorney must be one who is included in the attorney registry compiled pursuant to s. 27.40. Appointments of private attorneys must be made on a rotating basis, taking into consideration conflicts arising under this chapter.

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

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

(d) Effective January 1, 2007, an attorney seeking to be appointed by a court for incapacity and guardianship proceedings must have completed a minimum of 8 hours of education in guardianship. A court may waive the initial training requirement for an attorney who has served as a court-appointed attorney in incapacity proceedings or as an attorney of record for guardians for not less than 3 years. The education requirement of this paragraph does not apply to the office of criminal conflict and civil regional counsel until July 1, 2008.

(3) EXAMINING COMMITTEE.—

(a) Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion. One of three members of the committee must have knowledge of the type of incapacity alleged in the petition. Unless good cause is shown, the attending or family physician may not be appointed to the committee. If the attending or family physician is available for consultation, the committee must consult with the physician. Members of the examining committee may not be related to or associated with one another, with the petitioner, with counsel for the petitioner or the proposed guardian, or with the person alleged to be totally or partially incapacitated. A member may not be employed by any private or governmental agency that has custody of, or furnishes, services or subsidies, directly or indirectly, to the person or the family of the person alleged to be incapacitated or for whom a guardianship is sought. A petitioner may not serve as a member of the examining committee. Members of the examining committee must be able to communicate, either directly or through an interpreter, in the language that the alleged incapacitated person speaks or to communicate in a medium understandable to the alleged incapacitated person if she or he is able to communicate. The clerk of the court shall send notice of the appointment to each person appointed no later than 3 days after the court’s appointment.

(b) A person who has been appointed to serve as a member of an examining committee to examine an alleged incapacitated person may not thereafter be appointed as a guardian for the person who was the subject of the examination.

(c) Each person appointed to an examining committee must file an affidavit with the court stating that he or she has completed the required courses or will do so no later than 4 months after his or her initial appointment. Each year, the chief judge of the circuit must prepare a list of persons qualified to be members of an examining committee.

(d) A member of an examining committee must complete a minimum of 4 hours of initial training. The person must complete 2 hours of continuing education during each 2-year period after the initial training. The initial training and continuing education program must be developed under the supervision of the Statewide Public Guardianship Office, in consultation with the Florida Conference of Circuit Court Judges; the Elder Law and the Real Property, Probate and Trust Law sections of The Florida Bar; the Florida State Guardianship Association; and the Florida Guardianship Foundation. The court may waive the initial training requirement for a person who has served for not less than 5 years on examining committees. If a person wishes to obtain his or her continuing education on the Internet or by watching a video course, the person must first obtain the approval of the chief judge before taking an Internet or video course.

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

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

1. A physical examination;

2. A mental health examination; and

3. A functional assessment.

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

(g) Each committee member’s written report must include:

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

2. An evaluation of the alleged incapacitated person’s ability to retain her or his rights, including, without limitation, the rights to marry; vote; contract; manage or dispose of property; have a driver’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 member’s assessment of information provided by the attending or family physician, if any.

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

5. The names of all persons present during the time the committee member conducted his or her examination. If a person other than the person who is the subject of the examination supplies answers posed to the alleged incapacitated person, the report must include the response and the name of the person supplying the answer.

6. The signature of the committee member and the date and time the member conducted his or her examination.

(h) A copy of each committee member’s 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 a majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the court shall dismiss the petition.

(5) ADJUDICATORY HEARING.—

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

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

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

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

(a) The court shall make the following findings:

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

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

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

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

(b) When an order determines that a person is incapable of exercising delegable rights, the court must consider and find whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person. A guardian must be appointed to exercise the incapacitated person’s delegable rights unless the court finds there is an alternative. A guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person.

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

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

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

(f) Upon the filing of a verified statement by an interested person stating:

1. That he or she has a good faith belief that the alleged incapacitated person’s trust, trust amendment, or durable power of attorney is invalid; and

2. A reasonable factual basis for that belief,

the trust, trust amendment, or durable power of attorney shall not be deemed to be an alternative to the appointment of a guardian. The appointment of a guardian does not limit the court’s power to determine that certain authority granted by a durable power of attorney is to remain exercisable by the attorney in fact.

(7) FEES.—

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

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

(c) If the petition is dismissed, costs and attorney’s fees 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; s. 4, ch. 2006-77; s. 11, ch. 2006-178; s. 44, ch. 2006-217; s. 28, ch. 2007-62.

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