Florida Statewide Guardian ad Litem Office GAL ''>·~·(l'il'i tCE:;:.t. ~ VCH(i. iCi (hiii)FfH FLOfiJDA GUARDIAN AO Lil~/.\ PROGRAM Alan F Abramowitz, Executive Director November 16, 2016 Jason Nelson, Executive Director Office of Public and Professional Guardians 4040 Esplanade Way Tallahassee, Florida 32399- 7000 Re: Comment on Pending Rules Proposal Dear Mr. Nelson, The Guardian ad Litem Program represents abused, abandoned, and neglected children in dependency proceedings. Each year, approximately 90 children age out of foster care needing assistance with dccisionmaking, and may be appointed guardians and guardian advocates. l write today to ask you to consider these youth as you finalize your proposed rules generally, and on the following specific issues: • • • • The proposal requires consultation with and maintenance of relationships with ·'family," unless a Ward may be abused under section 415.102. Rule 58M-2.009(l)(a)2, (4), (6)(e)l0. Some foster youth try to return to families with verified findings of past abuse under Chapter 39. Guardians may need to consider dependency orders governing contact since not all abusive parents have had rights terminated. The considerations for determining a Ward's ethnic. religious. and cultural values in Rule 58M2.009(10) focus only on end-of-life issues which will not help inform decisions facing young adults. The proposal requires use of the best interest standard if a Ward has never had capacity. This will automatically apply to foster youth because they "never had capacity" due to age. Rule 58M2.009(7)(f). However, as youth transition into adulthood, it may be appropriate to use the process for decision-making generally in subsection (7)(a)-(d). The current language does not seem to allow this. The GAL has not researched the ethics or legality of whether and how a guardian should influence "interpersonal relationships" and ·'sexual expression" addressed in Rule 58M-2.009(JO)(b), but requests you consider the impact of the policy on young adults and provide appropriate protections. Thank you for the opportunity to comment. Feel free to call if you'd like to discuss any of these issues. Sincerely, Alan F. Abramowitz STEVE CRISAFULLI ANllY GAIUllNER Speaker President 'l"JIE FLORID.-\ 1.EGISLATl'.R[ JOINT ADMINISTRATIVE PROCEDURES COMMITTEE Sl'mtlor Dl•ni"l' Grim ... k~·. Chair Rcpresl.'nhdin• \\'. Tnl\is Ct1nuni11~•., \'icl' Clu1ir Hoom 680, Pepper BulldinJ: 11 I \\', !\ladison Sln•el Tttlhthassee, florida 32399-1_.00 Senator A11rnn Hl"dU Sl'nator llwighl Dullard Sl'11ator Na11c~· C. Delcrt St'na1or Gcr-.1ldine L "Geri~ ThomfhOll Telephone (850) 488-9110 ra_\ (850) 922.(.934 \l'WW.jape.stali.".D.uf> Rt'prest>ntuli\"l' Matt Hudson Re11rl'senlati\ e l..ake l{a~· join t.admin. procedll res:_~- k•g.stak. n.us nepn"!i.CUhllh'c llnzdlc P. ~1h11.l'I" H.ogen; Barbara \\'alson nl'prcst'nlatin~· November 8, 2016 Mr. Jason B. Nelson Executive Director Onice of Public and Professional Guardians Department of Elder Affairs 4040 Esplanade Way Tallahassee, FL 32399-7000 RE: Department of Elder Affairs Rules 58M-2.001, .009, and .011 Dear l'v1r. Nelson: I ha\·e reviewed the abo\'e-reforenced rules and offer the following comments for your consideration and response: Notice Section 120.54(3)(a)l., F.S., requires a notice of proposed rulemaking to include: a statement as to whether, based on the statement oft he estimated regulatory costs or other information expressly relied upon and described by the agency if no statement of regulatory costs is required, the proposed rule is expected to require legislati\'e ratification pursuant to s. 120.541 (3 ). The notice of proposed rulemaking does not specifically state whether legislati\'C ratification wi II be required for rules 58M-2.00 I and .011. Since a SERC was not prepared for these rules, please publish a notice of correction describing the information expressly relied upon by the Otlice in determining whether the rules arc expected to require legislative ratification. i'vlr. Jason B. Nelson November 8, 2016 Page 2 58M-2.00J Introductorv Paragraph -- lt is unclear from the paragraph where the criteria for the examination waiver is located. See ~120.52(8)(d), Fla. Stat. (2016). 58M-2.001(2) Professional Guardian Hcgistration Form Page 4 - The reference to section 744.1083, F.S., should be changed to section 744.2002, F.S. Professional Guardian Emplovcc Hcgistration Form Page 1 - Please cite the specific statute that pertains to educational requirements of professional guardian employees. Section 744.2003(3), F.S., only appears to reference educational requirements of professional guardians. Page 2 - The reference to section 744.1083, F.S., should be changed to section 744.2002, F.S. SSM-2.00 I (5)( c) The reference to section 744.1085, F.S., should be changed to section 744.2003, F.S. 58M-2.001(6) The reference to section 744.1085(8), F.S., should be changed to section 744.2003(8), F.S. 581\1-2.009 Section 744.200 I (3 )(a), F.S., requires the Oflice to develop and implement a monitoring tool "to ensure compliance of professional guardians with the standards of practice established by the Ollice of Public and Professional Guardians.·· Has the Office developed this tool? If so, please explain why the tool has not been adopted by rule. Sa § 120.54(1 )(a), Fla. Stat. (2016). Section 744.200 I (3 )(b), F .S., also requires the Office to develop procedures for the rel'iew of an allegation that a professional guardian has \'iolated a standard of practice. Please explain where these procedures are located. See §120.54(l)(a). Fla. Stat. (2016). 58M-2.009(12)(a)7. lt is unclear how the Office defines the term ·•reasonable" for purposes of the rule. See §120.52(8)(d). Fla. Stat. (2016). 58M-2.009(B)(c)7. It is unclear how the Oflice defines the phrase ·•collateral contacts" frn purposes of the rule. See ~120.52(8)(d), Fla. Stat. (2016). 58M-2.009(1.:l)(h) lt is unclear how the Office defines the terms "reasonable" and "suilicient'' for purposes of the rule. Sec § 120.52\ 8 )( d), Fla. Stat. (2016 ). Mr. Jason 13. Nelson NO\·cmbcr 8. 2016 Page 3 581\1-2.009( l 4)(j) Jt is unclear how the Olli cc defines the term ··reasonable" for purposes of the rule. See §l20.52(8)(d), Fla. Stat. (2016). 58M-2.009(l 4)(m) Jt is unclear how the Onice defines the term ··appropriate" for purposes of the rule. See §l20.52(8)(d), Fla. Stat. (2016). 58M-2.009(16)(b) The use of the term "'include" suggests that there arc additional, unnamed guidelines related to ancillary and suppo1i services not included in the rule. The rule should clearly identify the applicable guidelines. See §120.52(8)( d), Fla. Stat. (2016). 58M-2.009(16)(b)l.<·. As this provision is dratied, it is unclear what entity is responsible for granting an exemption to the conflict of interest provisions contained in subsection ( 16) of the rule. 58M-2.009(16)(b)3. Should the word ··Jncapacitate·· be changed to "Incapacitated"? 581\1-2.009(17)(<1) Please explain how the Office defines the phrase ·'significant impairment" for purposes of the rule. See §120.52(8)(d), Fla. Stat. (2016). SSM-2.009(17)(1) Jt is unclear how the Oflicc defines the term "reasonable" for purposes of the rule. See § l 20.52(8)(d), Fla. Stat. (2016). 58M-2.009(l 7)(h) Jt is unclear how the Onice defines the tenn ''reasonable" for purposes of the rule. See §l20.52(8)(d), Fla. Stat. (2016). 58M-2.009(20)(b) I.e. As this sub-subparagraph is dra1icd, it appears that the OHicc is prescribing the court's duties as it pertains to the usage ofcomingk1!.f_ and Profes_s_ional Guardians Diseiplinarj'_{j_gjdelines Page 2 - (Section 744.20041 (I )(b ), F.S.) - The form indicates the following is a violation: ''Engaging in unprofessional conduct. \vhich includes, but is not limited to, any departure from, or the failure to conform to, the standards of practice of Professional Guardians as established by the Of1ice of Public and Professional Uuardians:· The use of the phrase ·'includes, but is not Mr. Jason B. Nelson November 8, 2016 Page 4 limited to" implies that there may be other requirements that are not identified in the rule, leaving affected parties to guess as to what may or may not be included. See§ 120.52(8)(d), Fla. Stat. (2016). Page 2 -· (Section 744.20041 (I )(p ), F.S.) - It is unclear how the Office defines the phrase "reasonable inter\'als" for purposes of the rule. See§ 120.52(8)( d), Fla. Stat. (2016). Page 4 ··(Section 744.20041 (1 )(q), F.S.) - It may be useful to include a reference to section 744.2003, F.S., since section 744.1085, F.S., has been transferred. Should you have any questions, please do n0t hesitate to contact me. Otherwise, I look forward to your written response. 0 A~JJI 1 UffeJ Ufo':a~/. Sincerely, Chief Attorney JNO:t I c\"oni\jo\58M 2.UIJ I LS I J()816_161806_16 l 808 Jason Nelson From: Sent: To: Subject: Kathy Dunn Tuesday, November 15, 2016 12:04 PM Jason Nelson OPPG Work shop November 9, 2016 Hi Jason, Thank you for allowing us to participate in the workshop. The word shall is used many times throughout The Standards of Practice, it really needs to be changed in most cases to must. The word shall opens the door for a guardian to basically do whatever they choose, which in many cases is not what is in the best interest of the Ward. Professional guardians must allow the Ward to live with family instead of a facility, if this is what the Ward has expressed. If a Ward is to live in a facility they must not be moved far from their family. Professional Guardians must not be allowed to isolate, restrict visits without clear convincing evidence, not hearsay. The Professional Guardians must provide rehabilitation in the forms of memory care, speech therapy, etc. when needed. Professional Guardians must provide dental and ocular to their Wards. Professional Guardians must keep family members advised of any and all medical issues and ask for their input. Nothing should be confidential to family members. Professional Guardians should visit the Ward more than once quarterly if they live in a facility. Many guardians do not know what is going on with the Ward. Facilities are just not always doing what is best, etc. over- drugging is a very big concern, which facilities are doing just so they do not have to attend to the person. Professional Guardians must seek termination or limitation of the guardianship in the following circumstances; When less restrictive alternatives exist.... such as family members to replace the Professional Guardian There must be a cap on fees for Professional Guardians. Disciplinary Action and Guidelines If a Professional Guardian isolates or restricts visits without clear convincing evidence they need to be removed for abuse. If a Professional Guardian does not provide the proper medical care when needed in the form of any rehabilitation, which includes memory care, speech therapy, incontinence therapy, physical therapy, ocular and dental, they must be removed for neglect. There must not be second chances for a Professional Guardian who is Abusing their Ward by any form of isolation, neglect or abuse of power. Regards, Kathleen Dunn 1 Jason Nelson From: Sent: To: Cc: Subject: Lennie Burke Wednesday, November 16, 2016 10:52 AM Jason Nelson Amelia Milton; 'Jetta Getty'; 'Irene Rausch'; philiph@omplaw.com Rule SBM-2-009; comments Jayson, Here are my final comments on the proposed Standards of Practice. I support the position of the FSGA which you have already received. I have some modifications or additions I want to recommend for your consideration. • Section 2.(c) currently reads "Professional guardians shall clarify with the court any questions about the meaning of orders or directions from the court before taking action based on the orders or directions." The FSGA position recommends adding "unless in an emergency." I believe the phrase "except in an emergency" is preferable. • Section 4.(d). The FSGA suggested replacing the text with "When disposing of a Wards assets a Professional Guardian will seek approval from the Court. The Professional guardian will offer the right of first refusal to purchase or obtain items of sentimental values to interested persons." I recommend clearer wording "When disposing of a Ward's assets a Professional Guardian will seek approval from the Court. The Professional Guardian will offer the right of first refusal to interested persons to purchase or obtain items of sentimental • • • • values." Section S.(a). The FSGA position recommends deletion of the first sentence which restricts guardian from providing services other than guardianship. I believe this section should remain as indicated in the Proposed Rule. Section 13.(d).3. This section regards participation in care or planning conferences. The FSGA position recommended the paragraph be stricken. It also suggested a revision to indicate participation as needed. I believe the paragraph should stay in the Standards as long as it is modified to "Professional Guardian shall participate in care or planning conferences as needed to address issues concerning but not limited to residential, educational, vocational, or rehabilitation program of Wards within the rights delegated to the professional guardian by the court." Section 16.(b).3. The FSGA position recommends removal of the paragraph restricting petitioning the Court. The paragraph is OK as long as it is revised to refer to the determination of capacity. It would read "A Professional Guardian who is not a family member of the Alleged Incapacitated Person may act as petitioner for Determination of Capacity only when no other entity is available to act, provided all alternatives have been exhausted." Section 16.(b).7. The FSGA position raises a question about this section. I believe it is clear as written. Thank you for your hard work on this critical topic. Lennie Burke 1 Jason Nelson From: Sent: To: Cc: Subject: Attachments: Kelly Razzano < Kelly.Razzano@gal.fl.gov> Wednesday, November 16, 2016 1:02 PM Jason Nelson Alan Abramowitz; Deborah Lacombe Guardian ad Litem Program Comment on Rules Proposal Comment on Rules Proposal 11.16.16.pdf Director Nelson, Please find attached the Guardian ad Litem Program's Comment on Rules Proposal. A hard copy of our comment will follow by mail. If you have any questions or comments, please do not hesitate to contact Deborah Lacombe at (850) 922.7213. Thank you. Kel(r .4. Razzano Special Projects Manager Florida Statewide Guardian ad Litem Office w I am for the child~ 600 S. Calhoun Street Tallahassee, FL 32301 Office: (850) 922-7213 Cell: (850) 491-5323 WW\\'. (iuard IanadLitcn1 .org Click Logo to find our more 1 Florida Starewide Guardian ad Litem Office GAL >LORI DA GUAROIAN AD ll"rEM PllOGRAM Alan F Abra111011'itz, E\·ecutil'e Direclor November 16, 2016 Jason Nelson, Executive Director Office of Public and Professional Guardians 4040 Esplanade Way Tallahassee, Florida 32399- 7000 Re: Comment on Pending Rules Proposal Dear Mr. Nelson, The Guardian ad Litem Program represents abused, abandoned, and neglected children in dependency proceedings. Each year, approximately 90 children age out of foster care needing assistance with decisionmaking, and may be appointed guardians and guardian advocates. I write today to ask you to consider these youth as you finalize your proposed rules generally, and on the following specific issues: • • • • The proposal requires consultation with and maintenance of relationships with "family," unless a Ward may be abused under section 415.102. Rule 58M-2.009(1 )(a)2, (4), (6)(e)IO. Some foster youth try to return to families with verified findings of past abuse under Chapter 39. Guardians may need to consider dependency orders governing contact since not all abusive parents have had rights terminated. The considerations for determining a Ward's ethnic. religious. and cultural values in Rule 58M2.009( 10) focus only on end-of-life issues which wilI not help inform decisions facing young adults. The proposal requires use of the best interest standard if a Ward has never had capacity. This will automatically apply to foster youth because they "never had capacity" due to age. Rule 58M2.009(7)(f). However, as youth transition into adulthood, it may be appropriate to use the process for decision-making generally in subsection (7)(a)-(d). The current language does not seem to allow this. The GAL has not researched the ethics or legality of whether and how a guardian should influence ··interpersonal relationships" and ·'sexual expression" addressed in Rule 58M-2.009(10)(b). but requests you consider the impact of the policy on young adults and provide appropriate protections. Thank you for the opportunity to comment. Feel free to call if you'd like to discuss any of these issues. Sincerely, Alan F. Abramowitz Jason Nelson From: Sent: To: Cc: Subject: Attachments: Kelly Razzano < Kelly.Razzano@gal.fl.gov> Wednesday, November 16, 2016 1:02 PM Jason Nelson Alan Abramowitz; Deborah Lacombe Guardian ad Litem Program Comment on Rules Proposal Comment on Rules Proposal 11.16.16.pdf Director Nelson, Please find attached the Guardian ad Litem Program's Comment on Rules Proposal. A hard copy of our comment will follow by mail. If you have any questions or comments, please do not hesitate to contact Deborah Lacombe at (850) 922.7213. Thank you. Kei(F A. Razzano Special Projects Manager Florida Statewide Guardian ad Litem Office \'{( I am for the child • 600 S. Calhoun Street Tallahassee, FL 3230 I Office: (850) 922- 7213 Cell: (850) 491-5323 \\' W\V, Gu.~11'.0i an ad Lit cin. o rg Cli~k Logo to find out more 1 Florida Statewide Guardian ad Litem Office GAL ;_o;,:.;·,;,y· t.:;c1 i.1tc·:i·. ,. '''f J; ;·L·< \ G CL l ,;1;. HORtDA GUtiRPIAN AD L!Tf.M PROGRAM Alan F Abra111011'ilz, Exec11Jfre Direclor November 16, 2016 Jason Nelson, Executive Director Office of Public and Professional Guardians 4040 Esplanade Way Tallahassee, Florida 32399- 7000 Re: Comment on Pending Rules Proposal Dear Mr. Nelson, The Guardian ad Litem Program represents abused, abandoned, and neglected children in dependency proceedings. Each year, approximately 90 children age out of foster care needing assistance with decisionmaking, and may be appointed guardians and guardian advocates. l write today to ask you to consider these youth as you finalize your proposed rules generally, and on the following specific issues: • • • • The proposal requires consultation with and maintenance of relationships with "'family," unless a Ward may be abused under section 415.102. Ruic 58M-2.009(l)(a)2, (4), (6)(e)IO. Some foster youth try to return to families with verified findings of past abuse under Chapter 39. Guardians may need to consider dependency orders governing contact since not all abusive parents have had rights terminated. The considerations for determining a Ward's ethnic, religious, and cultural values in Rule 58M2.009( 10) focus only on end-of-life issues which will not help inform decisions facing young adults. The proposal requires use of the best interest standard if a Ward has never had capacity. This will automatically apply to foster youth because they ··never had capacity"' due to age. Rule 58M2.009(7)(f). However, as youth transition into adulthood, it may be appropriate to use the process for decision-making generally in subsection (7)(a)-(d). The current language does not seem to allow this. The GAL has not researched the ethics or legality of whether and how a guardian should influence ··interpersonal relationships" and ·'sexual expression" addressed in Rule 58M-2.009(10)(b), but requests you consider the impact of the policy on young adults and provide appropriate protections. Thank you for the opportunity to comment. Feel free to call if you'd like to discuss any of these issues. Sincerely, Alan F. Abramowitz P<.) Bo\. l Ol't:, fL :)2502 , l8~0) ()2.2- 7 215 ·1i..·l - \\ \\'\\ .t;uardi:tnadLitl'lll.urg Jason Nelson From: Sent: Boje, Debra Wednesday, November 16, 2016 5:45 PM Jason Nelson Deborah Goodall (dgoodall@gfsestatelaw.com); Sarah.Butters@hklaw.com; Curley, Nicklaus; 'Hung Nguyen' (hung@nguyenlawfirm.net) Real Property, Probate and Trust Law Section Official Comments to Proposed Rules Letter re comments to proposed guardianship rules.pd!; Redline - OPPG Rules Edits with Comments (11.15).pdf; Redline - OPPG Rules Edits Clean (11.15).pdf To: Cc: Subject: Attachments: Mr. Nelson, On behalf of the Real Property, Probate and Trust Law Section attached please find the following: 1. A letter summarizing the Section's comments to the proposed rules for professional guardian; 2. A redline of the proposed rules with the Section's commentary (PDF); and 3. A clean version of the rules as it would read with all revisions accepted (in PDF). We thank you for allowing us the opportunity to provide comments. If you require any assistance please let us know. Regards, Debra L. Boje • . GUNSTER PRIVATE WEALTH SERVICES Debra L. Boje I Attorney Board Certified Wills, Trusts and Estates 401 East Jackson Street, Suite 2500 Tampa, FL 33602 P 813-222·6614 F 813·314·6914 fil!!l~~~r.com l DBole@gunster.com 1 CHAIR Deborah Packer Goodall Goldman Felcoski & Stone P.A. 327 Plaza Real, Suite 230 Boca Raton, FL 33432-3944 {561) 395-0400 REAL PROPERTY, PROBATE& TRUST LAW SECTION THE FLORIDA BAR dooodaU@ofsestatelaw.com CHAIR-ELECT Andrew M. O'Malfey Carey, O'Maltey, Whitaker, et al. 712 S. Oregon Avenue Tampa, FL 33606-2543 (813) 250-0677 www.RPPTL.org November 16, 2016 aomallev@oowmpa.con1 REAL PROPERTY DIRECTOR Robert S. Freedman CarllOn Fields J01den Burt, P.A. 4221 W. Boy Scout Blvd., Ste. 1000 Tampa, FL 33607 (813) 2294149 rfreedman@carttonflelds.com PROBATE DIRECTOR Debra L. Boje Gunsler Yeakley & Stewart, P.A. 401 E. Jackson St., Sle. 2500 Tampa, FL 33602-5226 (813) 222-6614 dboie@gunstet.com SECRETARY William Thomas Hennessey, Ill Gunster Yoaktey & Stewarl, P.A. 777 S. Flagler Dr., Ste. 500E Wesl Palm Beach, FL 33401-6121 {561) 650-0863 whennessev@gunsler.rom TREASURER Tse Kelley Bronner Tae Kelley Bronner, PL 10006 Cross Creek Blvd., PMB 428 Tampa, FL 33647-2595 (813) 907-6643 VIA E-MAIL ONLY (nelsonj@elderaffairs.org) nelsonj[a)elderaffairs.org Jason Nelson, Executive Director Office of Public and Professional Guardians 4040 Esplanade Way Tallahassee, Florida 32399 Re: Comments to Proposed Rules: 58M-2.001 Professional Guardian Registration and Credit Investigation; 58M-2.009 Standards of Practice; 58M-2.0ll Disciplinary Action and Guidelines Dear Mr. Nelson: Introduction tae@estatelaw.com LEGISLATION CO-CHAIRS Steven H. Mazer Becker & Poliakoff 1511 N. Westshore Blvd., Suite 1000 Tampa, FL 33607 (813) 527-3906 smezer@bo!eaa!.com Sarah Swaim Butters Holland & Knight LLP 315 S Calhoun SI Ste 600 T al1aha&See, FL 32301-1872 {850) 425-5646 sarah butters@hklaw.com DIRECTOR, AT-LARGE MEMBERS S. Kalherine Frazier Hill Ward Henderson 101 E. Kennedy Blvd., Ste. 3700 Tampa, FL 33602-5195 (813) 221-3900 skfrazier@hwh!aw.com IMMEDIATE PAST CHAIR Michael J. Gelfand Gelfand & Arp&, P.A. 1555 Palm Beach lakes Blvd., Ste. 1220 West Palm Beach, FL 33401-2329 (561) 655-6224 MJGelfand@gelfanda1oe.com PROGRAM ADMINISfRATOR Mary Ann Obos The Florida Bar 651 E. Jefferson Street Tallahassee, FL 32399-2300 (850) 561-5626 mobos@f!abar.ora This letter is being submitted on behalf of the Real Property Probate & Trust Law Section of The Florida Bar ("RPPTL Section"). The RPPTL Section is a group of Florida lawyers who practice in the areas of real estate, guardianship, trust and estate law. The RPPTL Section is dedicated to serving all Florida lawyers and the public in these fields of practice. We produce educational materials and seminars, assist the public pro bono, draft legislation, draft rules of procedure, and occasionally serve as a friend of the court to assist on issues related to our fields of practice. Our Section has over 10,000 members. The comments that follow are substantially like, although not identical to, those that were submitted on November 8, 2016 by several individual attorneys who are members of the RPPTL Section. At the time that the previous comments were submitted, the RPPTL Section had not had the opportunity to review the proposed rules; however, given the additional time for comment afforded at the November 9th hearing and in accordance with the RPPTL by-laws, the Executive Committee deliberated and fonnally approved the submission of these revised comments on behalf of the RPPTL Section First and foremost, we commend the Depaitment of Elder Affairs (the Department) for the extraordinary efforts in assembling Jason Nelson, Executive Director Office of Public and Professional Guardians November 16, 2016 Page 2 such a comprehensive set of proposed rules. Guardianships by their very nature come in many different varieties: those for minors who will reach majority at a defined time; those for adults who have suffered sudden and unexpected injuries but whose life expectancy may be decades; and those for elderly adults who may be very near the end of their natural lives. Every ward is unique and every ward has different circumstances, different abilities, different financial resources and different needs. In some instances, a ward may only need a Guardian of the Prope1iy or a Guardian of the Person but not both or may only need a limited guardianship. In some instances, the ward may have all rights removed and therefore require a plenary Guardian of both Person and Property. A Professional Guardian may only be serving in one of those roles or may be serving in both. To attempt to draft rules that are appropriate for each of these various and very diverse scenarios is certainly a monumental task. Protecting the citizens of our state who are subjected to the Guardianship process, including through the incapacity determination proceeding, is certainly of the utmost importance. Ensuring that there are qualified Professional Guardians who are ready, willing and able to act to protect the ward when the need arises is also crucial for the system to function. Creating a mechanism to achieve these goals is without a doubt challenging but certainly vital. We appreciate the oppotiunity to participate in the process. While the first attachment includes comments providing the reason for the proposed changes, this Summary was prepared to highlight some of the more important proposed changes. Proposed Changes Through Out the Rules I. Use of the term "applicant" The te1ms "registrant," "applicant," and "relevant person" to describe the person applying for registration as a guardian is confusing since different sections use different terms to mean the same person. For consistency, please consider changing all terms referring to the person applying for registration as guardian to the term "applicant." The proposed change to "applicant" denotes that it is more of an application process and should be denoted as such to more accurately convey what is required, even though sec. 744.2002(1) uses the term registration. 2. Delineating Between a Guardian of the Person and a Guardian of the Property In many sections, the term "guardian" does not delineate between guardian of the person versus guardian of the property. Differentiating between which rules applies to which type of guardian will properly communicate the requirements for each type of guardianship. These changes are being proposed to the specific rules where the term "guardian" is used in addition to the headings since the rules of construction generally do not apply to headings. Jason Nelson, Executive Director Office of Public and Professional Guardians November 16, 2016 Page 3 3. "Under their guardianship" The term describing professional guardians with wards "under their guardianship" is redundant and thus deleted. Wards, by definition, are under guardianships. 58M-2.001 Professional Guardian Registration and Credit Investigation 4. Registration for employees of professional guardians Subsections (2), (5)(b), and (7) are modified to reflect that only employees with fiduciary responsibility to the ward are required to register to be consistent with sec. 744.3135. 5. Review of application In order to allow applicants to fully explain and supplement why information may be missing from what is required by the OPPG, subsection (8)(b) is modified from "shall" to "may." This change also makes this subsection more consistent with subsection (8)(a). 6. Subsection 12 is duplicative Subsection (12) is duplicative of subsection (2) and thus deleted. Subsection (2) requires registration by employees of professional guardians with fiduciary responsibilities (form 002) and that should trigger notice of that employee's existence to the OPPG. Requiring an amended form 001 by the guardian would needless increase labor and costs without adding any benefit. SSM-2.009 Standards of Practice 7. Definition of "abuse" The definition of "abuse" in subsection (l)(a)(4) is expanded for several reasons. First, there is no reason to limit abuse to just caregivers and family members. This definition should be broader to include anyone guilty of abuse to more accurately reflect the real world. Accordingly, reference is also made to the criminal statute, sec. 825.102. Second, "neglect" in subsection (l)(a)(5) references "abuse". Accordingly, abuse should not be limited to just caregivers, or family members since a guardian can be guilty of neglect if he/she allows anyone to abuse the ward. 8. Guardian fees While it is the practice of many guardians to obtain approval for their fees prior to taking those fees, the law does not explicitly require pre-approval. Accordingly, it is not appropriate for these rules to place a higher burden on guardians than does the statute and case law. As such, Jason Nelson, Executive Director Office of Public and Professional Guardians November 16, 2016 Page 4 changes are made to subsection (2)(e) and (21) to ensure they comply with current Florida law, including sec. 744.108. 9. Duty to Notify Court if Ward Regains Capacity The rules a require guardians to notify the com1 of any change in the capacity of the ward that warrants a restriction on the guardian's authority (subsection (2)(g) and (20)(b)(I)). However, this is inconsistent with sec. 744.361(13)(e), which only requires the guardian to notify the com1 if he/she "believes" the ward has regained capacity. The rules should be consistent with the statute and this rule as currently drafted could confuse the standards which govern guardians. In addition, the use of the standard in the statute may be more appropriate because it is based on the guardian's belief rather than requiring a guardian to absolutely know the ward's medical status that even medical doctors may not agree upon. Accordingly, edits were made to subsections (2)(g) and (20)(b)(I). 10. Relationship Between Ward and Guardian Subsection (3)(a) prohibits "personal relationships" between guardians and their wards and the ward's family unless the ward and guardian are family members or they had a relationship prior to appointment of the guardian. This prohibition, while well meaning, is problematic in that it is vague. What types of personal relationships are prohibited? ls having dinner prohibited? In addition, it is not narrowly tailored to protect the ward and in fact could hurt a ward. Friendly relationships should not be prohibited - it is the exploitation of those relationships for personal gain that should is the problem. Accordingly, subsection (3)(a) is deleted. The blanket prohibition on sexual relationship between a ward and guardian unless they are man-ied or there was a sexual relationship prior to appointment may not be in the ward's best interest. Section 744.20041(l)(n) recognizes potential problems with a sexual relationship but narrowly tailors the prohibition to instances where the guardian uses his/her position to engage in sexual activity. There are many instances where wards' incapacity is very limited and he/she can exercise most of their rights. To have a blanket prohibition - one that goes beyond that statute may not be in a ward's best interest and may thwart's a ward's preference where he/she is able to express one. Accordingly, subsection (3)(b) is deleted. Instead, sec. 744.2004l(l)(n) is referenced. In addition, subsection (IO)(b) is deleted because this standard is extremely difficult if not impossible for a guardian to meet. We believe that questions of sexual conduct and activity should be controlled by the statute and the rules should not intrude on this most sensitive of areas. In addition, as guardians have a general duty to protect wards, that duty still applies to sexual contact and expression. Subsection (4) and (4)(a) requires guardians to promote social interactions and meaningful relationships for a ward. First, the words "promote" and "meaningful" are vague and would be very difficult for a guardian to abide by (and thus unfair to enforce). Second, this is Jason Nelson, Executive Director Office of Public and Professional Guardians November 16, 2016 Page 5 not a statutory requirement and sec. 744.361(13)(b) only requires that guardians allow wards to maintain contact with family and friends unless such contact may cause harm to the ward. The language in the preamble adds burdens not required by law which are vague and should be deleted. The same reasoning justifies deleting subsection (4)(a). In addition, subsection (4)(b) should be deleted because it only allows interference to prevent abuse. Guardians must generally protect wards and thus this subsection is too constrictive. This subsection is replaced with a reference to sec. 744.361(13)(b), which is a more reasonable standard. Subsection (4)(c) is deleted because it infringes on a ward's privacy rights and applies a vague standard. This language in the rule would require a legislative change as it creates a substantive new duty for the guardian to keep ce11ain family members and "friends" informed. Subsection (4)(d) is duplicative of sec. 744.441 and is contrary to sec. 744.447(2) (sale without notice of perishable items). Fmther, the use of "interested persons" for purposes of sale of items is problematic as the determination of who is interested in any given personal property would be difficult and not cost effective since it may necessitate an additional hearing to determine who is interested for purposes of any particular sale. Subsection (4)(e) is unnecessary as court orders must be followed. This rule can also be interpreted to imply that court orders allowing non-interested persons to be kept informed do not have to be followed. 11. Informed Consent The heading for section (6) regarding "informed consent" is edited to reflect that informed consent should be used in the health care decision making process to be consistent with Florida law, including In re Guardianship of Browning, 568 So.2d 4 (Fla. 1990). 12. Decision Making Subsection (7)(c) is deleted because it requires informed consent for "each decision" made by a professional guardian. This is not required by Florida law and most decisions, including administrative decisions, do not require informed consent and is impractical. In addition, subsections (14)(d) and (e) seek to impose additional substantive duties and are inconsistent with a guardian's duties under Chapter 744, including sec. 744.361 and should be deleted. 13. Substituted Judgment and Best Interest Subsections (7)(e) on substituted judgment and (7)(f) on best interest are deleted because they arc not needed in these rules. Those terms have been defined and used in Florida statutes and case law and there is still a tension between the two competing standards. As such, these Jason Nelson, Executive Director Office of Public and Professional Guardians November 16, 2016 Page 6 rules should not seek to impose the standards on guardians and prevailing Florida law should apply. 14. Self-reliance of a Ward Subsection (9)(b)'s requiring the guardian to maximize self-reliance and independence is an almost impossible standard to fulfill and unrealistic to impose on a guardian. Accordingly, this language is modified to encourage pa1ticipation which is a more asce1tainable standard. We recognize the importance of including the ward in the making decisions process; however, there are occasions when doing so is neither feasible nor appropriate. For example, on occasion a hospital will petition to have a guardian appointed for a patient who is non-responsive or in a coma and has no family or friends to make decisions for them. A professional guardian is usually appointed. In these cases, it is not possible to discuss the ward's care with the ward or ask the ward what he or she would want. Thus, any rule that imposes a "shall" requirement on the professional guardian would be unworkable. Likewise, there are times when it may be counter-productive to discuss matters with the ward due to the ward's diagnosis (i.e. paranoia or schizophrenia). Thus, we have recommended in several places that the words "when appropriate" be included to address these situations. Although a professional guardian should strive to make available all medical care and treatment the ward needs and to have the ward reside in only the best of facilities, this is not always economically feasible. For example, the ward may benefit from physical therapy, but if the ward is on Medicare and does not have a private resources to pay for physical therapy, the guardian will not be able to ensure the services are provided once the ward reaches the Medicare cap. Similarly, a ward thal is on Medicaid may not like the facility where he or she resides. However, if the ward does not have sufficient funds lo permit the guardian to place the ward in a private pay facility, there may be no other choice of residence available to the ward. Medicaid beds are increasingly difficult to secure and often times a ward may have been removed from a care facility before the guardianship was established and other facilities may refuse to admit the ward. 15. Confidentiality Subsection (I l)(e) is deleted because it is superfluous based on subsections (I J)(a)-(d). Jn addition subsection (I 4)(e) infringes on a ward's privacy rights. 16. Involuntary placement Involuntary placement is considered an extraordinary measure under sec. 744.3215 and 744.3725 which require a higher burden and thus added procedures in these statutes to protect a ward. Accordingly, any reference to the rules regarding involuntary placement must comply Jason Nelson, Executive Director Office of Public and Professional Guardians November 16, 2016 Page 7 with the standards and procedures in the statutes, and thus changes were made to subsection (12)(a)(d). 17. Guardianship Plans Subsection (l3)(b) addressing guardianship plans is inconsistent with the statutory requirements so that section has been edited to refer to the two statutes concerning guardianship of the person plans, sec. 744.363 and 744.3675. For instance, the statutes do not require a budget. To the extent the rules seek to impose additional duties on guardians, this is beyond the rule making authority of the OPPG. In addition, subsection (I 7)(a)(3) is modified to reflect that no budget is required by a guardian under Florida law. 18. Documentation Subsection (l3)(b)(l3) is overly burdensome and the utility of it is not clear. To the extent the guardian is utilizing the ward's funds based on the goals/desires of the ward, the guardian is accountable for these expenses at the time of the guardian's annual accounting. 19. Assets Outside of Guardianship Subsection ( 16)(d) is edited because guardians have no control and thus should have no liability for assets outside of their control. 20. Lawsuits Subsection (l 6)(h) is modified to reflect that cowt approval is required for guardians to institute lawsuits; see sec. 744.441(1 I). 21. Wills Subsection (16)(0) imposes a duty that is outside of a guardian's purview. Wills deal with post-death disposition of property and should not be included. lt is arguable that a will is irrelevant to a guardian's administration of the guardianship during the ward's life time. 22. Accountings Subsection (l 7)(a)(7) 1s modified lo reference the new guardianship accounting rule 5.696. Jason Nelson, Executive Director Office of Public and Professional Guardians November 16, 2016 Page 8 23. Conflicts oflnterest In order to reconcile this rule with sec. 744.446, a reference is provided at the outset of this section prior to laying out more specific requirements of the statute in order to avoid interpretations in the rule that could conflict with the statute. In addition, subsection ( l 9)(d)(5) is deleted to reflect that in certain situations, including payment of rent, others who are close to the ward may benefit indirectly from the ward's assets. This should not be prohibited where appropriate. If the RPPTL Section can be of any further assistance to you or to the Otlice of Public and Professional Guardians with regard to the proposed rules, please do not hesitate to contact either of us. Respectfully Submi~tted,- Pfi~)r),j{uh ;v 0 aJ!l Deborah Packer Go d II Section Chair C!Y~ 'Ci. /3~ Debra Lynn Boje Director, Prnbatc and Trust Division cc: Andrew M. O'Malley, Esq. (aomallevlmcm1111pa.com) Sarah Butters, Esq.(sarah.buttersr@hkla\v.co1l\) Hung V. Nguyen, Esq. (hun~01,nguyenlawfirm.net) Nicklaus Curley, Esq. (ncurfil@g@_SJCL£9111) Mal)' Ann Obos (mobos@flabar.org) Notice of Proposed Rule DEPARTMENT OF ELDER AFFAIRS Statewide Public Guardianship Office RULE NOS.: RULE TITLES: 58M·2.00I Professional Guardian Registration 58M-2.009 Standards of Practice 58M-2.0J I Disciplinary Action and Guidelines PURPOSE AND EFFECT: The purpose of the proposed rule1naking is to implement statutory changes to Parts I and II of Ch. 744, F.S., and to the Department's oversight of public and professional guardians. SUMMARY: The rulemaking establishes standards of practice, disciplinary guidelines, and credit investigation procedures for public and professional guardians as well as i1nplements revisions of rules as needed based on legislative changes. SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will have an adverse i1npact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation ofthe rule. A SERC has been prepared by the Agency. The main economic impact of the proposed rule is likely generated through the rule's requiremenl thal professional guardians receive court approval of their guardianship fees and through !he rule's record keeping requirements. A full of the Statement of Estimated Regulatory Costs can be obtained online at copy http://elderaffairs.state.fl.us/doea/oppg_ruletnaking.php The Agency has determined that the proposed rule is expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the infonnation expressly relied upon and described herein: Through the preparation of a SERC, the Department has determined that proposed rule 58M-2.009, Florida Adtninistrative Code, concerning standards of practice for professional guardians, will have a significant regulatory impact on s1nall businesses and is likely to increase regulatory costs in excess of$ l ,OOO,OOO within the first five years of implementation. Any person who wishes lo provide info1mation regarding a statement of esti1nated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice. RULEMAKING AUTHORITY: 744.200I(2)(b), 744.200216), 744.3I35(5)(b), 744.2004I FS. LAW IMPLEMENTED: 744.I02(17), 744.200I(2)(b), 744.2002, 744.2003, 744.20-04I rs. IF REQUESTED WITHIN 2I DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW: DATE AND TUvtE: November 9, 2016, 9:30 a.m. - 12:30 p.m. PLACE: Florida Depart1nent of Elder Affairs, 4040 Esplanade Way, Room 301, Tallahassee, Florida 32399 To participate in the rule workshop by telephone please call: 1(888)670-3525 participation code: 5964230985 Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodalions to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Jason Nelson at Department of Elder Affairs, Office of Public and Professional Guardians, 4040 Esplanade Way, Tallahassee, FL 32399; email: nelsonj@elderaffairs.org; telephone: (850)414-2113. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice). THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Jason Nelson at Department of Elder Affairs, Office of Public and Professional Guardians, 4040 Esplanade Way, Tallahassee, FL 32399; email: nelsonj@elderatfairs.org; telephone: (850)414-2113 THE FULL TEXT OF THE PROPOSED RULE IS: 58M-2.001 Professional Guardian Registration and Credit Investigation. Applicants must score a miniinum of75% on the Professional Guardian Compelency Examination or must receive a waiver from the Deoartment of Elder Affairs' Office of Public and Professional Guardians COPPG1Mi!~.:h...k--P-ul-i-lk --~=~~c-------­ Comment [CURNICl]: The committee should reflect on whether 75% is a high enough bar. -----·---~ ~im+H:i-inti.;;hfil!)fl@:±hl~~g) before the application for registration will be considered. (I) Definitions. As used in this rule the tenn: Cal "Adverse credit history infonnation" means the following: 1. Personal bankruptcy within the previous year. 2. Bankruptcy within the previous year bf any organization based on events that occun-ed while the H•k-r11-n1 ~_pJj_r;,l)}lt was i11AJ~\.lfil!i9Jl ~lf control nci:!«~HoJJh1:_fil_anilflti2P~ 3. Outstanding tax lien or other governmental lien. 4. (-}tth-J.f)ttdflH=j~udgmentbased uoon grounds of fraud embezzlemenL misrepresentation or des:eit. 5. Open collection account or charged-off account that remains unpaid except accounts related solely to unpaid inedical expenses. 6. Foreclosure on tk-rnt'lflq±.b:"::~JlnY property 9wncd b\· ~i..:J)J.H within the last 5 years. (b) "Charged-off' means an account that has been identified by i.-ht>-9 creditor as an uncollectable debt. .tl}fB Persons who are required to register with the OPPG 9eJ18rtmeRt ef BIEier Affairs' State ide PHBlie GHardi1msh.i13 Gffiee f~PGG) as a professional guardian must complete the Professional Guardian Registration Form, DOEA/OPPG SP00 Fonn 001, XXXX 2016 ~1areR 2QQ8, which is incorporated herein by reference and may be obtained from the Office of Public and Professional Guardians £tat a i8.e PH1:1lie GHaffiiaHshi13 Gffiee, Department of Elder Affairs, 4040 Esplanade Way, Tallahassee, Florida 32399-7000, or at http://elderaffairs.state.flus/english/puhlic.html. The Professional Guardian Employee Registration Fonn, DOEAJOPPG SPGG Form 002, XXX 2016 P41lfe8 2008 which is incorporated herein by reference and 1nay be obtained from the OPPG SP.QQ or at http://elderaffairs.state.fl.us/english/public.hunl must also be completed and submitted fbr all V1+if~~Bflill-{-ju;;-Hhap,-.J;iHf*'10~£!lli~k1yi:es. 2f~filQJ~ssional gum:di.ans .M:·hq .h.11\'~ ..tiL~:11r~ . ill~ The registration form fr)r b~Hh.~ gu;u_:fljn11..illld..emnlQ\'.C.d shall be signed by the h.>g-1*8:'<1.+Jlno,;,rnnn.n:uuir!!d.\Q. ~~or ~corporate officer if the !'t¥istn:mt~ is a corporation. ill~ The completed registration fonn shall be filed with the OPPG State•, i8.e PHH lie GHar8.ianshi~ OUiee, by hand·delivery or mail. Facsi1nile submissions will not he accepted. illf41 The following items must either accompany the registration form or must be on file with the OPPG SPW, tbr the registration to be deemed complete: (a) A complete credit report, including all pages, fro1n a nationally recognized credit agency. A nationally recognized credit agency shall 1nean a credit agency that obtains credit infonnation both within and outside the State of Florida;Jind validates, updates, and maintains the accuracy of credit infonnation obtained. The report must reflect the financial responsibility of the r'"g-i~IHHHftill.1licillll and provide full, accurate, current, and complete infonnation regarding payment history and credit rating. (b) Cri1ninal history record for guardianS..ilQ_d_t'J]W_l~-~Y('.f> as specified in Section 744.3135, F.S.; (c) Documentation ofbonding as required under Section 744.1085, F.S.; 1 ill~ For the initial f.IJ.ijrdian registration, the applicant must submit proof of completion of the required training, as well as, proof of competency by evidence of satisfactory completion of the Department of Elder Affairs approved examination unless waived in accordance with Section 744.1085{8), F.S. For annual renewals, proof of receipt of the minimmn continuing education requirements 1nust be submitted, if not on file. illfet A registration fee of thirty¥ five dollars ($35) for each professional guardian=9=_t=~WJJ1P~S£~~'d.th_Q.@£im:;y rt;~nrn15jhjli1v 10 a wan{ in the fonn of a personal check, money order, or cashier's check made payable to the Mn~4B-·fl-1.tt~l-Ho-G1iar.Jtans-h-ij1-io·}f!.Jt-e-PJ~l~~- must be suh1nitted with the registration fonn. (8) Adverse Credit History Information. If an applicant's credit reoort or resoonses to the registration application contains adverse credit historv infonnation the OPPG will notify the applicant in writing of the specific items constituting adverse credit histo1y infonnation. The notification will also infonn the applicant of the ~~1l!R\\'i!J£.;. (a) Opoortunitv to explain the circumstances surrounding the soecific itt>+ttsi.l~UJ(;i) and provide any other relevant infonnation that the applicant wishes the OPPG to consider surrounding the specific i_-1,~i~l_{!i,),;. Ji.:. 5. Other infonnation that reflects upon an aPPlicant's character general fitness or financial responsibilitv. Comment [HN14]: Chapter 744, including sec. 144.2ooz, discuSJ1es ''registration" not licensing, and thus .thi.~-~ennino]o~j-~-~ed for consistency. - Corriment [HN15]: Added_tht prior title offhe agency in order to avoid argument that this is not intended to be included. This will insure that any i prior histozy with the SPGO is inc_~u,~d~ ~_itt--_-i-i:l!J:C illl(1 2 lllh!*t-t+f·-;11~.B.fflHHa-\ciBJ~ahl&-+ttl.~(.:_\!1"' .J10 l!i'!11--tif-.ed1itv-ie(-:-1~+FtttiifiBH--Hffi-'t: i-b:'J:l_l;Hl~+g-i'rtmltlo;fil.filli£~ whose bond will expire in less than 6 months. 1..1.Df8t Annual Renewals: A completed DOEA/OPPG SPGQ Fonn 00 I for annual renewal ofa registration shall be submitted to OPPG SPW at least 30 days prior to the expiration date of the current registration to ensure that a lapse in registration does not occur. Registi:aets !Ba) Fetft!:est ex~eGiteG ~Fesessing feFan eGGitienal fee. " seheSttle ef these en~eGiteG fees is pFe iBea en J;JGI3 ",,'8PGO feHR QQI. All fees must be received with the completed registration form prior to the registration being processed by the OPPG SPOO. Comment [HN16]: This proVisionis vague, particularly the _phrpse "any pattern of behavior the I information may demonm:ate.". Jt appears that the ' QPPG, in obtaining the required information, already Ihas discretion lo use its judgment ~in this topic. ~~~~~~~~~~~~~-----~ .fl:l:±(J./·J---lf-B-tl-f-(-tft.~Hflal-~Hi!'Hli-an---lti+t"~---Hfl-·\~+RtliH7t't:'--\V.f1J.i--a;.-:;i-g+ted·--fldtK'-ii.lf:-'-+6p01-bi-lltl-i+it>s--·dtH-iHf-+ll<:! 1:e-gi-stnt1-iBlli'lt'l~-tltl,-tllt'--1tH.tft>ssiH1laf-.gHif+dti111--sl-H1-li~th11l-it-·ml~iltll<.OHt>--infrlfmat-it'tH-l-<+-4±1i:'--GP--l-4;t.~j2.(.;.(J .....frff--<1flftH'l~'ltf.i•Fi-B1c.-1.o---~ll<.0-8Hjtl1tyet.Y:--i-Bi-l-i!--i~- Ru/emaki11g Authority 744.2002(6) 74J. 'QSJ(.§) 744.3135(5/Cbl FS. Law lmpfeme111ed 744.102(17), ~. 744.3135 FS. Histoi:v-New 5-4-03, Amended 12-12-05, 3-17-08_ _ _ __ Comment [HN17]: Th• sotnru•oon ofthi• form ' 744.2002~, 744.2003 58M-2.009 Standards of Practice. (!)DEFINITIONS fa) In addition to the tenns defined in Chapter 744 F.S. the following definitions are applicable tHt.O this rule: !. "Interested Person" means a person identified as an interested person in a guardianship proceeding. The meaning as it relates to J*lH-il-''-H+-hi.±RaD.hQ.11.i!.:r wards 1nay van· from time to time and must be detennined bJ:~ the ~_:C-ourt according to the particular matter f.iit"1-h"fo.t..f'o'0:-twW·H'+·:-BT..Jf-0.t!.'i~L~+!!.~-#Nrnl~an:yru,1£: which causes or is likely to cause significant impairment to a J.,l,.'.a-J:(ol_~~:fln.i's physical mental or emotional health. ,.\~§ j_ne Iu tl t s ·i:: !.· ·ir~!:i~.i,_:j_)l-'-' .. Jhj~~-- ~h~Rc_i _fi~(!J!y_in~Jmli~-~l.ll_~i~l1£1.I1L.abuM: __QJ~J1S.£.!~-f-bil~~JLljl11~.i1~-S1»;ill;ifs guardian which results in an unauthorized aooropriation sale or transfer ofpropertv or c. Intentionally or negligently failing to effectively use a .l,l,."-atB}~-~Anfs income and assets for the necessities required for that \)\."-artlw.ard's support and maintenanceo by the ¥:'.:!!!'-~Ward's guardian. 7. "Significant Occurrence" means an eventualitv event incident affair epjsode milestone transaction proceeding business concern circumstance particular fact matter of fact phenomenon· happenstance goings-on· adventure. haPPeninQ" accident. or casualty that affects a .l,!,.i11:tj\vard. f2\ THE PROFESSIQNAL GUARDIAN'S RELATIQNSHIP TO THE COURT. la) Professional ~-~Ji!:1¥gu,_,1_rdjau~ shall know the extent of the oowers and the limitations of authoritv granted to the1n by the court and all their decisions and actions shall be consistent with court orders and FlrnidaJa:c.·. Any action taken by a Pnol~+inry~-G~~ttrtliilli:i"lf!:o.iHHH[P.fr_s_s_i_<~.nal.£Y!IJrliJlllJ,lJ!l~l to a court order shall not be deemed to be vjolation of this rule. (b) Professional Gt-1aR..lian~g11anlians shall obtain court authorization for actions that are subject to court approval. fc) Professional G-1.mn:H-at.t~'Uli.iuus shall Clarifyiwith the court any questions thaJ Jbi>J»Jlft.~S.i.P'litLrn~nlia,n ha~. about the meaning of orders or directions from the court before taking action based on the orders or directions. (d) Professional Gt-taH.~-inHt;--::fil!i!Hgllil1:d.illn~. ifu1J seek assistance as tit't't-l'-"d-·-n·asonahlv .JJ~X!:1iliill''.. to fulfill responsjbilities to the .\\.'.ar'1s"}'._ij_IJ.b.::!tltt.l'-"F·-tf1-eir!g.uan.hatt9lt-it~. le) A11 pay1nents to l-'+H~Hal-.(-:tlla!;.)---JlH•4~.~!1!.ill.:;f..:ufrf!l-i-aw.--&l-rnfl·--!lHl-ifv.::.,~-f.'-HtHf--tJ-!'.;.1ft\o'--t'-i-1-<1™::ffi.-+l_w--ntHiK-'-i~v-{-tr~1--~~j.!!j;l.::i-!t-l·f•1hlJ.:£ll-ii\i:.J.:§H-:-S-iii_+1hHfiH~-:._~Hfltj):~_:L~fl-ah.J0j-~~~~+}+i1fj-L'--IHt{kiJ'-l·h-L<-0fH-'H·Hhli~!!_~~; l3l THE PROFESSIONAL GUARDIAN'S -!2-J{{-.J-F-.J:;S~.!.f~.';S-4LPFRSONA.L RELATIONSHIP WITH THE WARD. &tU.!'1· ·1·2. :·i 11:i..J-+ttwntm+ii;..;in+l+:fr."'.:.<::til..::ii~:malffia-1-i-e1rsl1ru ·it'i 1' ·,,ffi;,-.ttttt4el4l-h:'-ir~tm~~R-l~ ii!.!!lli:r.--er--t-h~r-\\.-i.t1'El~-~l~t'fld ...v.u,_,·s--t-h;c-Jlto:k"'¥.itenn.f...(-1+1a:!:"f:l!ilit::i:n1---hl!n-ih_,i-,,,.n1B -~'" ____ :_.fl_~~!-<,o.\i".;;-Rl+t+htitd±it:' "'fil"1.-0tl-l;h,.-'R.'l:J±:i·!killi:l?Oi-HHm'tlh:lf-tht'-f'·f<.~~i!i!.tti!U:l-um-dinir. W-lP+o·-l~f<.'l-l'J:!t!--{--:l-!fH'<-l-iaHt;--JHilV--tt-e!--t'HtW£-f'--in--se5:.unl+1.•liH-il4HS-V.ftl!.::it::~.'-:.,tHi-HHfie+--l-lw+i+tJttHffi111:J1tl:;:.:Httlc>ss-4-0 f.h4l~i-ffi1.iJl::±:tti-<±1-Jllit!t:i~=i-l.!£-A'i1H-8:£J:i'.~1:!.'?.:~:::j.±t::::ili_t_,:_'-'-':tlil.~·"ajil~i.tl:tt±b:ftb:'*i?t-d--1.mJ~'1~--!-4~J~~fil:i.!lttlt:Bf'.-.fl:b;'_ V_.Hl-l~tooal+i{;m*1ta+tz Prnkssinnal P11an:J.1;:iu~- Jllil)' _qqt ('!lQi:'t:l!'dtno<:i_ift!-i4K'liHl.-BH0t!.f~"L~~~-lhat---a-!~AA+l+<.!---\\.~-rd,.;~'Lfil-!f±.<11--Bfl-tt1Hl.-HHK::.at-ioH--'W'f::!l-lt!±~!~~Hl..'.nHb-: t·HlKl-{';'l'd:'--lJ.k'Hi--lk~ ~_£J~}ftlttt-i-\-\-:--\'rt1fH•.Ofl-t:tt'l-tll7fT!°i~'.!i-!L------ltt--.:tl'ltattt-tfH'--\\:ttl<.i-'~·-i~ti:J_fu!fljB-1~fte~\'l'tl-J~t.H-tt-l~t-it-HK!-l-+.it1i!R-ti;cm,.;-~.;-ltall-~-i1l-l~l.t'tlf<:'i'S..-Bt::<--ad-vis1:'5:l--tJf-ar1-v-jk'Hi-tt.:cH±:...~'tlG;:ili-.::L-;!-;t-k'e.,-.-{H-guai:d11lJ.S who are not family members of their +\~B-J.'<;f,;\raJib may not provide any services other than guardianship services to those \\-.'.n~±b~-~\;;lHb except in an emergency. Professional (-;+iaRJ.-it't:'-t\.'\.-'l.-t~+·-f-h~tHl\~~t't'-"!t-·!l+f-l-ttH-Jei---ftl.BR+iilfl-hlillt ti-d> In evaluating each reaue~faj decision wl_i_ngj;JJ_i;t,_~J}J)§i4n11Jil~J_i~111)'j_iJ!lfS.Qll~1Mlin.~~ll!J?Jx££i_,_ t4-f.+l~iumt! do the following: I. Have a clear understanding of the issue for which infonned consent is being sought 2. Have a clear understanding of the options exoected outcomes risks and benefits of each alternative 3. Determine the conditions that necessitate treatment or action. 4. Maximize the participation of \>,.'itH1-'i-\\j}lfd5 in understanding the facts and directing a decision. to the extent oossible 5 Detennine whether a ~j!;ghtan:I has previously stated preferences in regard to a decision ofthis nature 6. Detennine why this decision needs to be made now rather than later 7. Detennine what will happen if a decision is made to take no action 8. Determine what the least restrictive alternative is for the situation 9. Obtain a second medical or professional opinion if necessarv .IO. i\\]1-~_-fil?J?J2f!-.ljj:JJ~_._ (:)obtain information or input from <1-Wa-rd-+-j'jl-11~+-iv---B-nJ-l+(lfH-Other professionals _\!n.d 1!1~ ~nJ_j;__ 1dmJh:.J)__!l]£~~~nlliULb£.l.!£l£>1Jb_-iJ_l_~_ll~;b_ (OjJl!l fiom fb,;: ..fullliJY,111:1)_-' u111sc harm 1~~Jilll.ll.l!t;_,!,;.~!_!11!]1"Y_ !~!J.ll\.'.~)JJlr~ _h_c_s) _ijl_l,~JJ'_.'_il · and (--i-1-1H-ttl-Hti~!)H~f_\_>s~i9J.\&gUlt0---B-f !li.!_l112!l~.:Z~12~t--Bs::!.->fl.A~IB!-t:!11--ktl!~--tf<-m:.{-{1±,{·d+--PF,14~HHill--{±v-a-1'6-inttseJJ~_fr_,'>§jpn al g ! 1auti11ns shall identify · --.\:.i1tth\'.'!J:5I to determine what the -~'.:.!i.'.s.:;i,1.11~.iJJ. 011;irdian bas n n>ilsonuhk__ twlit1J11at_ following the \\---n-hi))::'.ilJd's goals and preferences would cause ~!!:Hi4t1o'im_!-_-impainnent to a -\IM:tJ<:iWiJ:_i:g's physical mental or emotional health. ftl__,s;uh-;rtil:ilifi4-~1-wkn~ :!:::fu.!.ll~:B-Htt"L-i---:iu-·.V.'a-n-H±i!.~L.:ilil'l2it ,__ 1d--1~4lil-l--H":_ lht.dLi®_g----k+hit:' iii ;11rv--<>t:1-H"°::§!~~ fil.-@!il:i__ii!t±Hi1~ 2-----~Hf.st-iJij_i~!i.-\itlgj-llffi-f---s-frn-ll-~~-use<.~--'>'!t\:_h-i)Jf:frF--a ----\WH't-i--10'-Jlt'cil-f... wli-e1t---li-+l_!:t.ft'.i:llit---l-f-i..~ ~'.§.±.4+YAsA-1"!i---m-l-lt-l4--~'3-~t''f:.-:'il_sr1i-Htm1t-+mfi-a+r+Ht'H!:~\'i~!l:..-¥!i.l:l.il.:±~\-'!Ttd1-l-:---1ttt'H-lf!.!:-£.1~:i'!"J.-0:B•+ttal---ltt'i:t-l-H-t----:----<.+1'---'>"'1i.t>:!.!::>.' JlJ--r.1-fe--S:!'~H-:---t-ti-e-+1ri-l-i...,.:.j+tlr__~f-g~~{+H-Htnl--ltt-!o'--tl-HH~lfrl.tl.s:l-ilf3~<"Ci-1+H~'.-'!wn--a_\,l,,.'.;+H-l-j:l:_il~.-:fl~·~!'4tad--GtJ*K-'--l-h'c :t_.'\!<;:t+-H-::~_\jj__joJ:cY--2.'\•fll-..;-.il!±-l-.i!:f.:!c':f~-H'lh.~dHHdl-·he--f!~~i,_~':\!-t•-vt>-H--\\'Jth-s·Hi:+peH-o"-H{;:~jif.:!_t.-f.+l:b£.~-fr--l.-Vm;,J~-Y,.;;;-l~"i: ~!_\t.-hL~"i:!t~H<-IH-fit'i'llH-4mflBiHJlti!l.:J.±!__~~\.·ii.-Fd±tJ-i\-Mt'H-h-.;11t'l'lhj:b::::i!~"frl-~\-l-hHl-&l--l+eal-!h--of-h1~or---l1<.'{i;i±•·_.:Wftl--1.c H--l~B.fHJ~.!'.'?\__j+!~H§llitY=qHl-ih':>-H-.£-t.m1:Gian--lo-t'--<'H~-±he--lt>ibl.+<"4Fii.,1i~':S:§:!tt'*-H!jtt_>!-h'H+-l-t+flR:l'<'i<.-h>-.f\+!-'·tl-I<". lls\-.~1:±:frl.~~~lil..:: J-:--+ite-~:h-lJff.€-Sli)-i-tH8-!:tl-t:0+etH-H-k'-~_!i_~}'+l~t:'--l:!-i-\-ffij_-l__+;t ~1':>-Hi::-ll._-tt~-tfi_-: C8l LEAST RESTRICTIVE ALTERNATIVE. (a) \Vhen making a decision !JrH~t'itr-a-f----<._-!-ttun:l-i;;ib-pl_ill}_~sional g1lilrdians shall carefully evaluate the alternatives that are available LG 1bi;_.w_a[(tand choose the one that best meets the personal and financial goals needs and preferences of -\-Wtt'<-1-s---ttntlt'f-~fif.::g11.fl_aj§~~w_ru:d.s11. while placing the least restrictions on their ~H{j-:,wards' freedoms rights and abilitv to control their environments. {b) Professional G-1..aH4Hrn~pl!'!~·tli_;11_1_:; shall weigh the risks and benefits of each decision and develop a balance between maximizing the indt;nendence and self--detennination of.V..'-artl-s~~i.IJ9s and maintaining -\\-'a-kcl:.i-Will:d~ pmtectjon and safety. (c) Professional \d±li!_$tih-guautiJJn_s shall make individualized decisions. The least restrictive alternative for one ~.i!!.Qward might not be the least restrictive alternative for another -\1..'.-aJftwan.L {d) The tbllowing guidelines apply in the detennination of the least restrictive alternative: Comment [HN40]: Not every decision of the guardian is dictated by infonned consent or substituted judgment. Many/most decisions of the guardian are administrative, particularly those of a guardian -0f the property. Furthermore, many of a gUl!tdian '.s decisions are dictated by other standards, such as best interests, which are not consistent with informed consent or substituted judgment. Comment [HN41]: Substituted judgment and informed consent are, recognized Florida standards that have·. been defined through stat."".am! ""'. faw r and should not be further limited/expanded within the 'lrules. See,§ 765.101(10); Oree_nberg v. ]11i(U11i Childre11's Hospital Research Inst., Inc., 264 F.Su_p.p2d. 1064 (SD. Fla.2003); In re ,Guardianship ofBrowning, 568 So.2d 4 (Fla. 1990). Furthermore, !!i~e is no need for these provisions in the rules. I. Professional Gtinttlfi+itt+~uarilii!B4i_fr.wj1b every opoortunity to exercise those individual rights that the j'.._4~~ivard m-i-g-lt~..§fill!i?b1J~"-"<'t..oi~h'-h'1.S.J.s.jiljJ1.r:J as they relate to the personal and financial needs of the .\B:!Hl~'.gid._.i!~Jimo as 1ha1 1•xcr~_i:i_e_j~--~wsL~Jen1 with (·om1.0r.Jgn,.. n;;pardjfili_tlw wa r_d ~-:i.~~n~~--LU:.:. Cb) -\\Jl~L.Jlilll.!Jillfi~ pi-i-rofessional G-ttaffi-iatl.J-;-;hak-·1l-lg;;:-i+i'l-iN-tiH::'--~f-+0l-la1H_¥----il-Hti----in\-li;>ffld~il"<"---+1f--HhoH: shall encourage their ~~~l:~:b.IDMQ~ to participate to the maximum extent of their -V.:n+-d~w9r-iBh>. (dyl The L~l'l:!~2!.l:i±t-±fltitf»:&'_95 ti1-l;!:k-ffeit.11-:8fa-t15hff~ identify with particular ethnic religious, and cultural values. To determine these values guru;dians shall consider the following: .L...Illi:_--\-\-*1'<-1-w;u:d's attitudes regarding illness pain and suffering 2 The ..\~-A-Jilward's attjtudes regarding death and dying 3. lbe %H-l-\)J!f..d's views regarding quality of life issues 4. The ¥-.i!@~'i:nr.d's attitudes regarding funeral and burial customs. ~~t{lfr: P::r«-k~-iBtJBl--G-HnHliath-s-h;;.J~--irt-k".:±i-<;'Jb-IB---.:+1wH'-41rni::;±~;-"i£J:L~"-'-*-Hl~01H-1-l·k.;u-a1:Jim~1f!:!1~btttic"-t-l-1a4-~.'.tl-l'<~""°l.±an--iflJi~rHntt-iHH·f10t."t'S;;a1:v:..4-!:_'l;jt-r-£-1.t<.±1J:IE:H?l±ii~~~\t.l1"15. unless decision making authority has not been delegated to the fl-H:'!JfflBJ-li!.-f±llilli-±ii:l-flPrnfrssimrnl \!.lillHhilD or the letters of guardianship provides otheiwise: Comment [HN47]: This is duplicative of subsections (a) and (c) and is adequately addressed 1,vithout subsection (e). To the extent this subsection is included, it should make exception for a guardian pe!!ed to disclose by appropriate 11utOOrities (i.e. urtorder). r l;:·-----·-----·- -- l ~.a.&.si:.s::;. that .1.,.1,.'.att!-sw_a.nJ:-, arc living in the most appropriate envirorunent that addresses each .\l..'.tt1';__-lJ_b.!.:"rnl qmy consider the proximity of the setting to those people and activities that are important to -\\-'.a!_--ha-:Yt'-S--t_~k,,_-'-i~-i-t.'tH---4-a-li---lw·-t-o---+ni-nimi>'.o--1h~-Jf"1f-·Hl:-<>-i~11i--H'--->-a1H ~min-i-t-t.>ttt---lt.Ht----\l,-'.a-i'-d4~'-'fl-l-::-tnef1-h+l:-+•t:siil.i~t"!.!lt!-!:ll:'?-J.iilt:>i!.~-0i~-f!-~B.ih.t;::!i!i:."l!i:!::ilimri!fllli!:!i41~1*'t'H-1'"Hl-i-'*'ss-i-l~ !J,)-S~"iJ.t~:!l:!.'!t.::l:~~JB.~!:f?tllh':~i!_ftllli.'.JJLo.J1~-ill.\!Sl..C_om11h',,,iti!h § §~")c-'}:i_~}J;~_:Ji'!.J?2'i 11n r~ bdjcves !h1• ward no longer meets the .;,-ti1fH:l-a1<±.c.riu.:ij~1 pursuant to which the guardianship was imposed or when there is an effective alternative available and -:t:5- To reoort to the Office of Public and Professional Guardians. the Department of Children and Families' Adult Protective Services Unit and local law enforcement incidents of abuse neglect and/or exploitation as defmed by state statutes within a reasonable period of time under the circumstances. (13) INITIAL AND ONGOING RESPONSIBILITIES DE l!ill GLlARil.!ANDE IHE l'ERSQN With the proner authority l'Htf&sh.+Hlil-{.:jtJmt!inn,.;pJ.gftssjq11aJ. g_1_rn_rdi_a_ns ofth_Llwrson shall take the following initial steps after aPPointment as a guardian: I. Professional 8tJ-a-ftlfj+nij;;J._-!i\l~.lim.¥i.J.ll-J.llJ.-:.UrI~Wl shall address all issues of-l.:\~:\!f_:_1fw1ud-; \i!:15l~--:fil@-J:'fli£!Ltj:_i±i1tthat require immediate action 2. \Vh_e_ne_v_erooss_ibl!iJlP.-rofessional (-_f;_.n1-rtl+a-H~filJ-'iHlUl~_Q(ili<:.;..11er_spn shall meet with \\.:,i+B,,;wa_rds as soon after the appointment as is feasible. At the first meeting;-----P-Htt~:'iiB-Jm1--!:ttliln~hltlci ULiJ-_;i_~fQ.iill.i\5.. H'.i!.CiJln.aW£.._--iJ.Jll~11j:~-~-t~1qaJ_ g_wu_:9Jm14tLllW-_H\.'.L'Bl.Jl shall: a. Communicate to the -\lriihly,:_ard the role of the P+H--l-Bn--iHH+1-l-+:tHuttlmtlDJ01t@J.-llli:!lJlli>JUli.iU4 b. Explain the rights retained by the -\.\-i:H-dward c. Assess the -~.\'m:thY-?.--t:c!'s physical and social situation d. Assess the .\.\-iin4ward's educational vocational and recreational needs e. Obtain the -Y.>:i\:i.iill'.i!Ul's preferences f. Assess the support systems available to the -~-i!!il:wiBl · and g. Attempt to gather any missing necessary infonnation regarding the fuH-1.h~:µrd. 3. After the first 1neeting with the -\:Yi~~4wa1:d the ~.'.f!:fi.,,~"!~"'"f!~!il-J:~.§.il}!JI!--11'~~21h1LliYJl.Jrtifrn_J-lJ)l!.~Jl~\i._m shall notify uU relevant a-i.-'f"IW-i..?--115 of the apoointment of !!tl!!g::!hat-00HaiH--e'>1tt!Hat~·we-€fr.!llilletcS. if i:!£1.t!.!'fflffii1M.J-~-j1-e;+4"1k:n-it-iHt~at,---::i\.-l:l:-!'01'H~+lJi.h~:._~ Commeilt {N56J: Sub,s~ion(b) ls inconsistent with_ sec 744_.3~3-~ _7:44.36~5. _The conten~_ofthe guardianship plan required by .sec. 744.363 and 744.367-5 is significantly different ftom the guardianship plan described herein. To the extent the rule is seeking to impose an additional duty on the professional guardian to make another, separate plan, it is inap_.E:?jriate. ·aH-l-.- 2--~--lf4h.o-f2-HJ--l6si~_uilLSiti-at'!fuitl--i-S---m>n1'i-lH-t'd-:ib-:filiii!'!c-l-itm---04~tl-w---tm~~})'.';._-:\_fJS:Ji--l.J:-i~1t-a-ml----ootlai:€-rakfllitw:t~R&l-OOi...W.*4nw:-tiRK~.i~!.l~i'..:i!:':: \g:---Progress notes arid ilil\'. ...d.\.l-flll.llt'.J!U!tion that reflect contacts made and work done regarding the .l,\.:;,Hlw11.nl.il11.:IJ1~Jhe ~..lim!.'.....a1ill_ a_c!i_\:ilv,,. 98. The initial guardianship plan and annual plans 2_-l-(J. The initial inventory and annual accountings. if required Comment {US_ER57j: Next of.kin are interested parties in guardianship and should have their nfonnation on file ~ ·----------· ~ment [N58J: This is a burdensome I ;_~~en_t, part_icularl_y with the _inclusion of ·~]_lateral l!X>lltacts"'whicb is a vague concept. To the extent the rule is seeking tQ have the guardian docwnent all interactions with the ward, it is sufficiently encapsulated in the subsequent l~ubsecjjon relating to progr~~~~:_ _____ _ 1.:i..Q. Assess1nents regarding the .\\:UHl\\jn:d's past and present medical psychological and social functioning I 12'. Docu1nentation ofthe~~j_l_gh'.::.ard's known values lifestvle preferences. and known wishes regarding medical and other care and service Bd,){')€Uffi€ffi-atk~~7it-l-:>--BF-fJl~1~+)y-!1l~it'l.~---B-v---l-l'i<"--4'.ttR~.:-ili.\i<:.-l+a~t¥Jt-tl~'1l-H--;,>,~j .. --{4-i-J-l-<:'P-Ji.+ft>·~±ful!.--(.;11B1-iJ+a--t-Ht-F1d at1l tl I ca Lt-Jft' shall participate in all care or planning conferences concerning the residential educational vocational. or rehabilitation program of ~z_w;1_rd,$ within the rights delegated to the professional guardian o[Jb.c. Jtl.d:§Oll by the (-.:ettFH:~mq. 4 Professional (.:j{1ai.!l.fittJ~g_µ.g1d_im!5 <_1f 1_!_1_r.Ji_0::i.Dll_ shall regularly exa1nine all services and all charts notes logs evaluations and other documents regarding -\\.~§±!~ at the place of residence and at any program site to ascertain that the care plan is being pronerly followed. 5 Professional (-;t+a-HJ~,m~.gl_!ill:Qill'.filds using accepted regulations and care standards as guidelines and seeking re1nedies when care is found to be deficient. 6 Professional 'iit£l:!'tl-iit~---1illfll!JiillluU:-Jh<:_ pgnmJ_ shall monitor the residential setting on an ongoing basis and take any necessary action when the setting does not meet the .J..!0EJ\\~a!:d's current goals needs and preferences inc!udjng but not limited to: a. Evaluating the plan b. Enforcing residents' rights legal and civil rights and c. Ensuring quality of care and appropriateness of the setting in light of the feelings and attitudes of the ~i_~ (e) Professional GtH1tt-l-1iltt-sgw1rdjan~ _qJJ!i_J.':~J2.¥_UiQJl shall fully identify examine and continue to seek information regarding options ;•lYi\i~J?kJ_q_k wat:d.ithat will fulfill the ~ffdy.'ard's goals needs and preferences. l Professional ~i-uH-Hltan-sg~filJhl.'_"_ p_~[~O.Jl shall take-----ftiil advantage of professional assistance in identifying all available options for long tenn services and supoort. 2. Sources of professional assistance include. but are not limited to Area Agencies on Aging Centers for Independent Living protection and advocacy agencies Long Tenn Care Ombuds1nen Developmental Disabilities Councils. Aging and Disabilitv Resource Centers and collllnunity mental health agencies. <14) DECISION-MAKING CONCERNING MEDICAL TREATMENT_!J_j-;~l~2(.CJI J AR!)J.'.\J:-S __Qf_l_l~l: P!:Rskttt£-C--Ol:tlt-#l?Hrtwttl--:fBi'-8-icl-i-4K.;j_5.j;:+HS~-sh-1tl-I-;­ ..f-:-Mfl~~1~w-t-«7!H.1f-.W.affis. >h=Affiti-We-a--{.,>-kiif'V!ide;.-:st-atttli-ne::.e-f..th~~>eEJK-:!.ttl---fuoo;~ J--:-A~-a-clear~t-sh-a-11'*1-se--tfle-sill>-St-i-t-ll-te€!C-He-a...fleilt-fi---.en:ft>--Oe...-,.j_:;im1-, !!f!less~!ifoo.a.1-Gth~tt··OOHfiot di!te-miti~-<8ryi:ier-wi'5l~~fla-J.-Gajffi!~v_u?n~iaps_ Qf__tb_~ Uki~9D shall detennine whether a ward:--l.11.'-h+h"-{~'l<±--\ti.l.-1!.-t"!t'HH1t.'ttt----ef·H·..Jl-i'Q-i_~'?"i.:+1t shall inform the court kiHEh.'41,ef-intgr§:it?dilaffies-bfthe existing health care documents. fgQ) To the extent a ~.!:#. ~:ii-Hf cannot participate in the decision making process a J1-n.;;-k"';;ieHaJ ~-:i.t_fi±!i-tifil!llu.ll~~WJJ;1iardian o[lb¥_Prrson shall act in accordance with the ~-,J~'s prior-~<-'rnl statements ward'sri.sht prpvided in§ 744,3215(l){d). lnclusion of this ten:n within this subsection addressing appropriate medical care may lend itself to a misinte;pretation that_ certain appropriate medical care shop.Id not be providc4 if it offends the ..ci-1h h'"lb:':7i!i:tl~k- infonnation received the ¥.-~1.Hl:i1'.!1rd's welfare to determine the \\.'.ward's best interestS7¥i'1-l*'lt-ikteF1HiRa~-lHAfH«8~ffiiM--ef.oo~~..far~he-i'l'--1~1dWHl.Q..aj_ ffi-4e..Wa~ffitlm-siaRBe5---wat!kl~.f fiD Absent an emergency or a ~.t:tl-~:Y_anl's execution ofa living will durable power of attorney for health care or other advance directive declaration of intent that clearly indicates a -~_i!ig~aul's wishes with respect to a medical joteryention a 1.±!±.-L~iBlrn-!:_-4-i-l1gi31-j_g!Jillilfc.s.sj_!..l.nQl_ rnardjan oLt~Jl.Cl1'ilJl who has authority may not grant or deny authorization for a medical intervention until he or she has given careful consideration to the criteria contained in subsections !6) and !7) . .(tnl In the event of an emergency. a P-rB!~;±-~i!!:h!:l+i-Bn1Bimi-~A~@Ji;l1____£_\_l;,Jf1\j"aJJ .(!_L1Jw pe1..,;nn who has authoritv to make health care decisions shall grant or deny authoriz.a.tion of ememency medical treatment based on a reasonable assessment of the criteria contained in subsections <6> and (7) within the time allotted by the ememency. fhJ1l Professional (-:i.i-!E.-t~l'll~l_-_d,i_;,u1s o(!l!£J)CfsQ1_1 __1n_:1»_,se_1!_k a second medical opinion for any medical treat1nent or intervention that would cause a reasonable oerson to do so or in circumstances where any medical intervention noses a significant risk to a J.'.-'fl.J'<--l-v._-qrd. Professional Crl-trtFH~:!o.l-hhysiciml. Oil Professional {~H;\R~-i-iHb----Shi11}~-'QHlif!J-ili-h-"it~gllilJJ.l~i-W~_-nf tlw _Jwrson .Ill.UY J;_fJJ]!Jlll!lljcak with the treating 1nedical nrovider before authorizing or denying any treatment or procedure that has been previously approved. lli!i ) Professional ~u;t-f-!Jtc~ty wh~~t usei:l tMoughout. __ MEDICAL TREATMENT_Ji)'__<_J!J'.\E PJAN _ntl-:<2_fmt>-;._~i§1J::i!:.tjl};tJitflL----iBGlud-t)-f---{_'-{tl'fffil-l-V---t'·K~;-,;t>'r-;i-Hf<2-i~<"llCT'··f~l.~ili-!W·-th0-w-it-hltB-\.d-inl'... Q,!:2~l!__~11'!*"l+-{+f--ttltXiienl ~§:H.l~J:!:;::j1_±tfil_@+na-l-Gttafii-i:im,2!Jitl-l----lt-.-1+B-vr--t-l1&-v.-i4_i__fj-_---f'f::!±i_<;'------\.\'.m-il--tf-+he--\.\.'i;-FJ~---{_,-'+Jff€-ftl-Wts-lh'-S--·H-f-<';jJ)_----§:!ft_fu.f:! wH.fi~'l-6-fl~i~~ftt<:.,;,;""'-4---w-h_§).:i_-li9__ ~~-:1r~.1~-m8tT. V-t:_~!'=~_jl 11·il+:ttt-a-nJ-ffiw;~.!i±:llii.:!til1i_· i:tl1~+4-h>it!:illi!. s-tth.tl.~.i.!:!.~lli±!.tti~-ll·fl·)1"{hn,~aj±H:t f0t--'A:f;;.':E;::tl«tk-!-1,!g__----4i:>------<.k'<.+i,.;-i<'IH.:j:t!.l.::::.l~:-J±'!:IJ~~H--.\\.{j;'<-h-:-f'.tttf.~0±<:!!!fil:::±-i-utlH!:i;l-.w.w~~:;g) <·11 l'r f;:,·, i rn-a.J-..(:j11af§~f~fli!-l+-ii-w+k1-till---i..'-l*l4~-c;---ttH+l~ ..,tiK~~f-fu,_"i_!--l_Q-!f~0H-c-J4 ~;_ jB.;_tj"L..G.£ 28: tl-f -\h1lii~B.!L~ii-!!'fliit1sl-ritr.---i~--:i-'!o:-'i..<1l~iTf-ci1-l-k"'l~--wi~~---~f-4+1!~it.t1hl-l-B-tt-it-l{l-ii-lfL+<.E:~n1.:-i~--t-•F-g~j~_;.:_ ~tH't~ffit--f..'B:lHIf-IJ-&.rt---ir!J.§_[£,,:t ~~;;'i!._"§:f.:f.!"'.i~ji~j;li-l-l-(J-t;;+Hl-iilfl---;;..,~i'}!±·l-(IJ<-\:--ad+itH--Hl.~+!=-lt!!i:i~f-h_'!_fjhl: d f-u---\\'.-i:H:d-.. ~..ol-f::§~±ifl!!:-itl'h~ iti 'l ll-{b---fl--12-fH-Jfjj;!_Q!j_-ti-cl-{--iH\>_i§-i-;HHHJ<-!j_ttl-:'._-:!_t-:t!:::i~_fo_ t?f.::!t<:'F--ttWR-i-lHer..o-st:;---imfl"'.!_;:!_fa\!H---li:H----t-flt'---itH~-;;...:14~t-ll-t:~:iiB:l.:- {_-l_B;_{---i__aj~tij£1~~~,~4.-l~£:i±ii!__fr--rtilthHt~l1·?~'i*-~+t-lt---tl-i-t-e£-t""*1'"::i0:ts--H-+---&---\\-iln-l-,­ b~,1~---d-ii~±Sj'-"~~-l:w---atmr.(.tY~.-::!fr::lli\."-e-<.."ttt~-;­ H--~~fltl-il-f~6_~!_1i_~H;;-s-lhl-ll-*'Bil-l°tli-Jl-?-HHHjl-l-{~tt:-l-llt;'--f-l-RH'_hij_-!_fi;}_fitli:g~~~t¥--S-1."i+~J.f~i!_n-l+.--ettJ<:!r--l-]t-;Ht gHa1Q-inth!-!.!l?2.l:'.±~~+at--l-k'F--llnm::11l.±'.)::i.§.±ili!::±!:l±1~~"'-;;e-r,,.-i'--~l:ii~'-B:r-..:: l-J,-llt+;.j{>-c;s1+JllH1--±i.iti±!_:!:l_-@!.h--4itl-l---lw-i11-d<:?Jhll-l0.r±l:!::!f!:?lH--iHl,-;,<:>P..::i.s_'f;::t:.!:0~:!~h:1£.~:\!H6--m-1~-t4111lkmg-ttHktfi-'1Hk>+ri..;__4ttt~+it--lffilk-itL!Z..-!!!-.B-J!L-tJ::i.frc J-,-.,-l,.-fll..Q:!\>t6'j.Q!_ta-l-<--i-llil-R.J-inil--¥<4t.+-h-HBH1--l-iHH-i-lv-ttw-THBt'f·Hf-lfie-~tlcec.:i-·hK'j~-'ihl!<"-.P~h-{'llH·H?.'t"-ilt'4-HS-i}tiftlt-i++Ht'1' £..>J:::!:li~1i:!:ifr6!i1£HiHHH0tll·"')l:..;r-£-l.HlHliHB·"'~lH;'.!::::td.l~.t:±lft±d:h1Z!...':!,.'1t!:B.t:::b_:jJ;-vtti-!_n_~+-f.K'h-f!fl4+-i..hltlli!.\:h'"il~~ 4:--.P-tH~Htiat-41Hilhiii-lth-illi'l'v-lh.+l--t!-IHJ1ktt.1-!N.tt:-::!h:s-Hill~_~g!j ii-lit!:!i~J±~:i-b;j!.'o';Cl-i-kthk--a-ml--lhe---r4-ttfoti-:'citi11itl-GuH-1<.-l.-im1 -diS+..'lom,";o_~-tl'!if::::fill'\±1!1$§!:!lt'-JH--±l.!-.il1~'6-H·Fl--ttHt.l---l~IO-l'Vit¥!>--aJ'l< J-!H:l-\-'fdni--ti+-4.t>-=gt'liH£-H'l§;!..~.:JiiJ;:'.: fo::l~<±~'""'~ta!-(-:i-1.iiH'(-l-i-an~.sHn-l-!-i-h'-i-1fi01'~Hi-i;:,11t--ihtf·{-li:,'{'fi)t--itH'-<:.'tH~_s:.:!B±liL~:!~.flfH\'i-tl·t'i':Y:fl,..-f2tttfu~+'lil~J:.~~_it_nl_§!i'!..-.o.;.l_taJl·-€'i".Jl;rltlt.4--'ri_ttoi{1l:i-S-·iHl8l.Jn~Hf'thlf{~~~l~!.i':!:iA:St2-""'.!t!il~"!..~~~':.io'i~....:ji@Vfi.:k-i"'i th..iJ!:::li~:..--±'£:±~~.i_0t1.:i!-J:::fu~g!':i,.-liili.b_Ji:L itkb!_+-ktttl~ltH-l-l--cin-tt1'0-iht11-i-fli'·""t'i''ij;,_~ji!Ji!.::h_~i!.h.'-::L~'eti4-ifiJ:~".'-!--ili_filj!j__'<-:_ h'+!-sfHli\-l-tle.,....:J~tt>-~F\-~-1.'-E'~-l'H.~---l~..£.-i'J±..B.!!!i~~"!~.!?::i".i~!!:!:illlltfflWl.{o ~:.::f~!...'f!:f.i...o...4.H1-al-+tttnn:l-i-afur-ttmv--1"Hk'i'-tltl-e--n_1faH~~li:i.l:tn.±1:Bi!X..-i+~u:!::!-~~.!tH~~t"tl~n1ci~t+tttl-\-Wht'i1-t1t>01:':.•~a-P,-,-f11 v..-ll'<'-!t-{heH:'--i!',--H-·~~H-iBHl DUTIES OF THE PROFESSIONAL GUARDIAN OF THE PROPERTY (a) Professional ~--ti.-1ai4ii!.l;l-s--wf1itfJ:Bntl··{--!-i111iiHl-i{4!l~·Hl:..i.h.,,_J,1.-'-\ji.~ tfl±-£+1~-k~w.iH--itiitffii-illi-s-.;;h~~Y.±ilit±ti~..i'±l±:.l.J:i_-<.ttLn..h~+!.~~Jbtl~Ftli::f:!~M-v--i'lnB---;;H-n~l..£<.........;_ijJ: i!!~0.!fr!'o'::i!flSJ.:§f.il_:t.±e~4lteiJi."'!...--e-Hltt~-l+ttS: {i~) Professional \o:ttn1+tl-ia11~;gu..<1i.-.dii.111s oCthc_prop~!JY shall 1nanage the estate only for the benefit of the -\\.'.;t-nlward or as directed by the (,::.:.11.H~f~lJPJ . .UD Professional (.i-ihl:!'tltnn:-;gl:!.\:\J_:9ji:\l}~Y.L\h~..P.U~l~~\1Y shall keep estate assets safe by keeping accurate records of all transactions and be able to fully account for an the assets in the estate affii-ans--sl!al-l-tnaltt--c-fo-im5--il.Mfi~fiefs-on-·hellilif-ef..t~aie-wh~-in--the=-b€-;;t­ fffieH~.ffi-ef-4.l1f.~ffi-..art4-&l:i-aU:,]1 i J~rnfrssiona! g11ardJJns nf !ht• puJrn.;,r:I.>;' shall apply state law regarding prudent investment practices. including seeking responsible consultation with and delegation to people with appropriate expertise is necessary to manage the estate where appr0m·i_,~ f-ttl.f+1~fe,ry-fm1i11-l.:jHa·rdimtfr2l1-rr~l--.:-m1:r!Bv-(,tcltt4il-fl-v----A-l.'-GS!H<-'tl--Aa'-tn_-tttt-i-11e··P•~tH.'-ci~1eB-H-HJHf!f:'-i-H':!-il-B-"<'";i-lflh_~­ feidP-n1+t>ssinn-a-l---(--iuanl-i-a-it;,-.S!-rnAt-:!1_~tt-ii-H:l-..ff-fl4'-~l+~h-b---atH!-.*-'h-!-aj-H---a...__"-ttlV--h:t-d·-4.-1:1--{-h~----¥nirt=--fil-ia-rd-i+Hb!ill.7.::as soon after the appointment as feasible. At--~·frJSl-:i!!~l-i.i~-£tll.k2-.M.-E.1.l.!i:!J!..--i:illi:!:i-l!ili±il'1-Jb.£.Q;Ji.;Q! __p9;;-".LbJF._l?_±1.~wa1:iJ any necessary infonnation regarding the estate. Coinment [N74J: This is inconsistent with sec~ 744.361(13) which n~quires a guardian OF THE Hq"-:1-ft•:;-;;-h-J-Ji.-ttl-*_~HBtt.i-iath---sltall--.i'.tt':<:)Hl-----i-lk'l~tH£::fil'Ltl::fri*":ti-:ff.1~~-;,ot:'t--s-IMll---a-lM-t tf!EJ.~de----&--lt:rH-R~· ....~f'il-H--t.:l-f---t-h~1-4;£~'-HffHH!;-----ffi-rnrt-kl-v--;?1'!~eR~K-'-!t!.t!.-iHQ----ht;t---R,--ll--../-i-ni-t~~.=B-)----fltlt1fil:i;:g.:::-_-t!~±h.iH-£.-; l:)~EHJJ-,---.f1t>rtfilt:i:ttmtJ'-iltk'¥c·.:>#l<:',!-1friHtiJ-tjt\-;-lHld·+@illi:!!J1--!k'j_!)~---l,\.i1H1~-iW~"J.'_-!-l_tt:--fH<:'-S<.,o.p,.-.{+l~t~l-H+f'.-t-ll-\.~-;;';;l(!{-1_~, f:d'..i'!c--l§Ei§ill---(-:itt..§B..±il!..tl:'.ci!iilJ±.--Jnrttl:iJi!:i.l'.1..::!ht;:::g\-'l.1!j__:ifim!.t!~!i!,.-i.t!fd1j!J__---n1--it---»&~ff§£i:!..~Hni-Hn-l:i±rg-t:!'io~ PERSON to be educated about the incapacities of the ward. Such education is not required under statute the. for guardi_ax.15__!>!~~£~?Perty. ·----- --------- ' Comment [N75]~ Rewritten for consist.ency with Chapter 744 which does not require that a budget be submitted by the guardian. The inclusion 9fa budget 1 is .inconsistent \\ith statute and would constitute a . I L~~bstantive duty. i4· Professional t:·iHi!J.~:!:@_:!bgW![.Ll_iill...lLfJi_J!i£ __ llr,!JJJi:J:l)~, shall assess the feasibility of pursuing all public and insurance benefits for which :V..~1:ili•rr:ard_~ may be eligible. 65. Professional (..Juantiilfl~lE!Tti_im1_s Qf1b.~Jll_QJ)_fl1}' shall-t-h-<)hl-UgJI-1-v document the management of the estate and the canying out of any and all duties reauired by statute or regulation. J6. Professional G1@".l+i11¥.>g_UJ1rdjan<. of.thi'_ mnpeny shall prepare an inventory f;.l::,i-l-ljHBik'l1:{£:ir-\,,,-h-idi-~l&Bf-<.iili: t:t::f§'lBH;;ilz!:_tt=3--l-J't"-i1l:Yt'!H-11!_3-:;::-.-tHH~i&l.--ii~~-t~l':tjjij__-t"b---HW1'-_~-Ll1__ __'.__2_ill'f!~~±J~;:;f!_litl::iJ±}t,_+Jt~-'._~_-::l,fr:_~::;ft:J.J:llJ~l-i:{J_f1_jn ill(.runtmcs_~it!~l.±tJ65.J'..,.S.,. a.nd 1:1n1:itl_;1ErQ\~a1e R11k.2,Q2Q,,. !6]. All accountings must contain sufficient infonnation to clearly describe all significant transactions affecting adininistration dnring the accounting period~:.A-!l::i.ts:t-HHflliHg_-8--m-w..t----lk'---{.'OHtl!:k!~--ntt'tH.:_aj_~.;:::fili§-.=tt1ttfor8i_l.±l.~-41_s llliL~Jl~JlLill_Ela,.JlJgh. R. 5-, 696, '!~&· Professional t:;.i_taHl1a1!_~!J.\irQi_m1~ Comment (HN76); Included citation to new (_lfJh_1' __ QH}J,_)\.:t1J'__ Shall oversee the disposition of -¥...ill~~~jJ___ J\&r_d_s_'assets ~scJ~)_Q. _ihl.'_ gi.~!£!.-lillJ.-~S- .'-'!)JUillLYt:.~_vhen .s.ce_king_ to qualify -"B.K.'i?Y•'ards for any public benefits program ~~..J.kt illlLliDiJJg COIJJ1 apl!.HlXi_\1 ~f49. accounting rule (Fla. Prob. R. S.696) rguardianship which out the requirements of an annual 1 l l~ys accountingc.- - - - On the termination of the guardianship or the death of a ~§!!4d'-i'(l-il·-+1Ht-ciliit.~'J-§f----\+1:...U--\\---HlJ_'k'Ft".:::."Yt!JllitH-tl-V.Jfr::'_-ftl!l--!tt'--IB i-H{~~_fil__-<¥J:f!:<1-R~t':i-iHl4:it~•~,H~-±:..+1ifL!W·Jlh':'..-fl-lc\Yheu dl.wnsing ~!f_Y~»~~rd's__ _as.s_cJ~._pur~uanl W _S<.':\.':~Q. 744.4.4-! _F.S_"g l}J:QJ_~~~-igJ_lf!_l O'JJ_ilJJ,l-illJ1JJLibr-l!!:.Qll1)11Llllll,,~J_,._:".,tf:_k "ill!JLl!.PJ'Jil~'ij l and .nmi fr __ iu.tns~9_,:PS:I~Ql)_§_i]_~_J.l.:"QlliE;,__'1,~!;l 2-~~~-"'-:lh (b) ~fl-lfK~ff-of-+V-i-d.aitet.'---ef.a..\Va-i:&'s ,·ie \." Bef..1:ri'-4l1e-itlfiltii-lllfH-ffi-l~-e-ss-ieBal--Guaffi-iatt,..P.r-B~ Gltaf<.1-in-H5:-l.1a-:vilH<:thst.!f(~oo'-iH:H-l-iel'it• , ma, 110{-£B1-f-:...en{)lliflli~j~§. traRS.fm~3fil~=-ss--0Gf1H!:-w--is-ffi-tlle-best-inW-ru&t---0t".tl1e.-Wa-ffi_,. hn considering whether to disnose of a ~a-Rlfu1rd's prooerty -l4+i-J~1~1J}!-J.{-1.J--1-H-R4-Hmsnrofos~inna!gu-l1_nli:p1s nf1Ji\'_PJ~?llf.dV shall consider the following: LWf!et-l-1_!'!J]l(~!;l-£:~i1_~~-J)_(_1b~-}\:~\ti~LJ~b_~·~i;,1!£!1LO.JJUjl.i.;;_lcJJol_l.'1'JJJ~_tJJ~__Jll_:Qi\:;.;;__sjQ__t]8J__g__l-!_il_IJ_lj~_u. L-:)fJ)~~~~si1~?~:_;__~~lt;;~~t-tti~Ul:l!Ltt±ti±il\f:lfu±!i~-~:LiJI-W~~¥i'tlhl!_t:t±tfa1t~---±!t¥)_t\'c~b.tJIDlfa".,~:ii.H@_f:i;t~'illiti! disoosing of the property will benefit or improve the life of the j_.\'.Qffr-~J;g, Comment [N77]: As noted previously, a guardian does not have a duty to monitor filnds which are not under the control of the guardian. Comment (N79]: .This language is inconsistent with§§ 744.441(7) & (11) which addresses the sale or abandorunent of property only upon court approval. § 744.441 -does not include the restrictions which the rule is proposing. clwJL~i--JJ:~~~~Yihetlwr ;h.-3_, __ The likelihood that the -V>.'.n«h'!'\ll:d will need or benefit from the property in the future,J,-t-tit>:Hl'<"~i-ttt!S-1-v S::<-J?_!;<,.~!±-h'l:!.t.:triTL1~i!i_'t±Lt8:lij-~i!~:d-~~+1R-l--h!..'1f~.Bfil.fl'i~ 4. The provisions of the -!B!:lli»j!_Ul's estate plan as it relates to the prooerty if any 5. The tax consequences of the transaction 6. The impact of the transaction on the ·'.WErdw_agj's entitlement to public benefits. 7. The condition of the entire estate. 8. The ability of the ~§.gl™d to maintain the property. 9. The availability and appropriateness of alternatives to the <-lijj_1;1i-il!!±l~~~llDf 1be property 10. The likelihood that property 1nay deteriorate or be subject to waste-:·-i!i!:j:L 11. The benefits versus the liability and costs of maintaining the mrnwnv.· 1llll.L l_J~ __ADv i,11JJ~r f'1f1Qr.thatnu1y_Jl_t.ffil£Vap110 tb1: dJ.W_gsjljon QfJb.e. }_Y.§J.9'.s pronertv.1
_qy Shall prfw1BB--fw:P!~Jli ~nslllH-H-!.-h4~j!:!E, !:110-H0<.'':c.-h.-:£tE-..l,\.'.nifd-s--'!Hld~'lf'-'FHii£~fin1!£!tJi+.:..----::l:!lli...ffiilt-F~!-V-t-lf-(__O(!Hj1i"'-'-i_--:i~lji.~h"-l~-ilFi-s-..,";;-->.\.Jtl._,'-!<;'-ii:::!-~±&'.Bifil!!-a-l-+1~titH~-iaH·~IB-S '.i_~~Hlit!.L::lf'-il1<~H~Hk.~---\-HB-l----ffitl-~··l""!':l'e-ciV<:'{l---a-s---s-el-f-st-'P<'iH~jH-Hdw1'!>t'---\-\}-+ltt0+>HOrl1-ittH--i~l~~~.:i1H~'-f,-l---fl-/~-(l !~!...~b::::f,,:Jf::.H-kil1t-h2;1_:{1~-H-1-i'~.)XiJ-1UJtim ~:.~1 u 11_aJ1nr:1~_\'a1. h:::±f.-£rHi-~KitH:!±...-£1.!!!!HhfiL"'2~ __1_f_m:Q[i;il_s_i1nwL.&Jl~J.Eli~\IJ§__ p_f th!.':: __ nrQ!)!:rty complete accounting of each :\l.i!R~\Ya1:Q's maintain joint accounts separate and funds shall also be maintained by the -l'R~-i-H+li-l-1-(ti.mHi-irtt.\DIQl~ionaJ ~1_:giil!1. !:-d_. If the court allows the use of H)tHi-i!-!:-lctk~ll!J!Jl..ilJgled accounts they should be pennitted only where an· _rrq_W_i:cfl to keep accurate records of the exact amount of funds in the account including allocation of interest and charges attributable to each estate based on the asset level of the \-h!tt4-n1in_L. ~-:c:-,!.£.J. Professional GHaB..li-Ri~~llul::t"WJl~-~LQR-£.-tJ:'. may not sell encumber convey or otheiwise transfer a ~K-h>,;ill_:d's real or personal property or any interest in that propertv to himself or herself, a spouse a !2.~}.\•+H~<\"+CQ-_\~lrls.s:r an e1nnlovee a member of the board of the agency or comorate -l4B-I6-!-ii-H1m~ ~iuani-itffiJJ.,!:_Q(C?__;;j_g_11<1Lg_l)JL-'1iim1. an agent or an attorney or any comoration or trust in which the E:ti4J~.fil:lil1 ~::it.:ll_!ft1L-v_ ~lJ:::lf\_~!ii~'i~~-Hll-!%-S·?j)t>l.'4-HZ:jz;_:!!-:i':?j~!:_!j-~jj~affieG'..:JiBHl--lh~-'-{~UfbL2ft.tf!tti_i.-k-+1rill_-±!um-fli__-t"?,t!:!l-c &-i__:t<-+-16-s+rnli!.-b-1.~i:!td:igi3'.i:jl!P'<--Ih'l-{-1~re+i-f-frtHfl-an'>'·ff<,~::fri.._-l;l~tr­ ~!!!i..t '.fjgl- Professional trlta-Hl--i-atiJiJ,;J.Hl!}lian:. shall not give anything ofkiP11jfican1 lvalue associated with a guardianship referral. B-±±.:+-h-H.-M_µ,.,;_;i,::J--t1o:*A~--t+Jilo4-l~b:~d:H~+J+.:-P--l-{{-}-j.,'t-?;SH.J~A:h--_\-jl,:!_f\R-l-}l-/\~~-lP:b)J.)nkss !uriilr annn1val i:i 0.hwj1J_~J!JD;.cm111 nrd!"L...ill..~s_s_u~b.J:o:!j_i_tiijl;Ship existed nriilL. 10.... iluupfolJHfEl of 1Jw pnil(-ssjnoal l.!llilJJ!iill1Ji!lfLi~ di~cl_0_~~!J J_q_ Jt~_-_ sp11rt .i-R..J~_ _J1_d_it iQJ\__j_\.)J" ~ilm_1.QilltU:J,\:Jll_g_f _s_4i,1LsljJln~-Jh~o_J_Q_l)p_~j_pg__ g!-)_i_QsJ)n.~?-__ -D:JiltiJJg, 1\l_"-"iJJ9,_r.:j.i_if fil..11@.lliln.'i.lihould he ohsen·ed· l"'_!~n.:ii~'.~!ii9n1lli!HiJ. r:dj_an5.J1W y_ 0~1J d in;_~\lY-_J:i,t.Q,_\jW;__bQU~igg .JlWfi_jra I ~l_W___2_,~JJ:i!,.:\.:~JQ_ji)}_a_nj_ b.J~1Jlf~j_t_~~i_!_gu_;1tdim1;; J!W v_ D~l\ _(,:JJJ1ll.!)XSbri!:fu!llib~ 10 Jlnuddi: __s~_1}jr,:~.\LtQl.~..JtmfJ-L.Ql fee,_ J~ Pro1~~.~siillJ.i.d.£lli\Jfilij_ll~ s.ba.ILncithtr sol idl.nQr lll,;~J;JJJ.l!-!J,":'-'.P1 jves fr nm s('n:i!.:~J~rQvi.Y£~ U0-li.l.:.~..sii,11Ji_11_,gi!~l9-iaJ1s__ ~;;_lm_,m:~Jtl1~-1DJ..~Y~,_.ur . f~UJlili!-.¥Jn_,_ ;1Jl_Q!IJS}):,_JlJ;!J~.--Pr11\'iQ~_J,~g<)_l_;;f_L\..i££~,J9_,~_-~J~kJ111Lr ~~J1t_J_lJlQiru;d..QJl0~l1m.:~L~Jl.!i'_JJ.l'\:ds. or 1h1· ~- Comment [HN84]: This is inconsistent with§ 744.441(7) & (11), This issue is adequately addressed l~~Se<:tion 18{b) above. --~~~~----~~~· Comment [HNBS]: The inclusion of"indircctly" is extreme_Jy vague and would encompass a number of transactions which would benefit the ward & someone else (i.e. paying tent for the ward_ and spouse or grocery bills). Secfion 744.421 addresses this iss~ sufficiently. ~-----~------~----~ Comment [HN8.]: A professional guardian has a right to a reasonable fee which constitutes a profit.To the extent this provision is meant to avoid self-dealing L~actions, it is adequately addressed in§ 744.446. I Comment [NB7]: The~ "si,gnifjcant" was inserted to avoid violation through routine pleasantries,~ asholiday gifts. Comment [NBS): Subsection (h) constitutes provisions relocated from former section 16. ifJIJJ l'.RJ\UNAl ION !\NJJ .L!J,lJl AlJtJN _~)J: .PROJJ;_S)J(2N_AJ,_(.IUARD1.6.N5Jl!E (a) Professional ~~4-iili'fl-i~-al)fgu;u:diilll§ shall assist ~\'.g_t4s.-!!_rytlt>~lliliii,Bl'.li..il!ltllids to develop or regain the capacity to 1nanage their personal and financial affairs,,_iL!J,1£di_\.J!JJ~~1Q.~~iP!~(b) Professional ~-hi_f1Hl-i.@..?g\lm:di_;u1s shall seek termination or limitation of the guardianship in the following circumstances: 1 When rt~!ifJ11-Ll@_ardjan=~ie\~es'_q __1\';trd has developed or regained capacity in areas in which he or she was found incapacitated by the court 2 When P-Q~l!lli.1J!v less restrictive alternatives lhJUJw_vg__ po_! h1't'u J,)I\.')jQlls_!y _a__(_l_41:(·_s~cdJ1.)'.Jlw.r{~\J!J exist 3 When a ~t1~l)2'aJII expresses the desire to challenge the necessity of all or part of the guardianship \llld_..i\!.d.l r_~p1yssion hy_ili_<:. Wilrd.is_.(,¥J-L~Q1Ja!_lk und~_.Cir.GJ.!1J-"--liHl£.D 4 When a -!\i!.-1~~\'llfi has died or 5. When a guardianship no longer benefits the -1,-1,--HHh~'i!JJl. p__,,_ ~\'h_~n__thf_ y.·~rq 14lt!ll!J.tP~J_ys_1Jt\''-'~±:JP,·---!.h<:-<:t'ttJt1-,---f'-<--~+1H~\!:!!f reasonable and be related only to guardianship duties. .(tl__±-t:4+i4i;>,.;-~,.1nal:.£i:!.ttances in detennining the appromiate disciplinary action to be imposed. RufemaMngAuthority 744.20041 F.S. Lqw Implemented 744.20041 F.S. HistmT-New NAME OF PERSON ORIGINATING PROPOSED RULE: Jason Nelson NAME OF AGENCY HEAD \\'HO APPROVED THE PROPOSED RULE: Jeffrey Bragg DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 12, 2016 DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: August 1, 2016 Jason Nelson From: Sent: To: Subject: Lynn Sayler Friday, November 11, 2016 11:06 AM Jason Nelson OPPG office Hi Jason, I wanted to remind you that since it is your office that is in charge of professional guardians, that your office should also make it their job to educate the public about professional guardianship. The cost and the process. Police officer will come to your house and serve you papers, you will be evaluated by a committee that you will pay so much for and they will be chosen by the probate court. You will have your rights taken away from you. Your assets and bank account will be turned over to a professional guardian who will come with a guardian attorney, you will pay them 95 an hour for guardian and 250 to 300 an hour for attorney, this includes every minute that they talk to you, any minute they get in the car and drive for something for you and you will be billed through a Judge that will approve those fees. The Public deserves to know what guardianship really is, what an invasion of privacy it is to drag someone through the Judicial process and how undignified it truly is for any one to experience. If the public is better informed, there would not be so many guardianships. Especially unneeded ones. Guardianship was to be last resort. Also I am curious as to why some people think your rules need to match the statues. The Statues are not followed in many guardianship cases, and it seems your rules are to protect just that. If I can be of any help, please let me know. Thank you, Lynn Sayler 1 Jason Nelson From: Sent: To: Subject: southfga2@yahoo.com Monday, November 14, 2016 12:29 PM Jason Nelson additional submission to OPPG Standard and Practicies My greatest concern, and what I want to know is there legal president for is Standard and Practices ( page 4593) 58M-2.009 section (4) The Professional Guardian's Relationship with Family Members and Friends (C), (d), (e). Keeping non-family members "Friends" and "Interested Persons" informed in issues ofa Ward's life. (see attachment) There is no referral to this being the preference of the Ward, or based on the Ward's action prior to the incapacity hearing. There is no clear definition as to who is a "friend" or "Person Interested". My understanding is under the ADA, the ward could have a cause for action against the guardian, and or it is a violation of the ADA (if not other laws and rules) to disclose a disabled person's personal infommtion. Plus, if it is done in an electric medium, it could be a violation of HIPP A. In addition to 58M-2.009 own mles about infonned consent and substituted judgment; Self detennination of the Ward, and Duties of the Professional Guardian of the Person. All reference to guardian under the auth01ity of the OPPG should be referred to as Registered Guardian. Jerome Silverberg President - SFGA southfga2@yahoo.com (305) 759-8500 ext. 112 CONFIDENTIALITY NOTICE: This e-mail and any files transmitted with it are confidential and are intended solely for the use of the individual or entity to which they are addressed. This communication may also contain material protected and governed by the Health Insurance and Portability and Accountability Act (HIPAA). If you are not the intended recipient of this e-mail and the information it contains or if you are not the employee or agent responsible for delivering this e-mail and the information it contains to the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying of this e-mail is strictly prohibited. If you have received this e-mail in error, please contact the sender of this message. 1 Jason Nelson From: Sent: To: Subject: Attachments: Jetta Getty Monday, November 14, 2016 10:31 AM Jason Nelson; Amelia Milton; bobbidaytona@gmail.com; jetta12397@aol.com Florida State Guardianship Association Formal Position - Rule Making OPPG Documents FSGA Comments Proposed OPPG Rule 11-14-16 FINAL.doc Good morning Jason & Amelia, Attached you will please find the formal comments, input, concerns of the Florida State Guardianship Association relating to the recent November 9th, hearing for the Office of Public & Professional Guardians Rule Making Proposal. I thank you in advance for the opportunity to participate in this process. Have a good day. Best regards, Jetta L. Getty, NCG-CG FSGA Legislative Committee Chair 1 FSGA FORMAL POSITION OPPG PROPOSED RULE NO. 58M--2.001 NO. 58M-2.009 NO. 58M-2-011 The Florida State Guardianship Association supports the OPPG in it's efforts to enact the above referenced Rule Making areas with the following identified areas of concern and/or suggested change: 58M-2-001 744.1085 (7) Change the name from SPGO to OPPG. 58M-2-009 Section 1: Definitions 1. Add the word hY to the last sentence between "determined" and "the" 4. Substitute the word impact for "impairment". Strike "Abuse includes acts and omissions". 6. © add the word Ell] after the word "support", . 7. "Significant Occurrence" Change the definition to read: means an event, circumstance, happenstance, milestone, particular accident or casualty that affects the Ward. Section 2: ©add at the end "unless in an emergency". (e) Change to read: All payments to Professional Guardians from the assets of a Ward shall follow the requirements of Section 744.108, F.S. Section 3: No comment Section 4: © Change to read: Professional Guardians must maintain communications with their Wards' families and friends when that communication would benefit the Ward. (d) When disposing of a Wards assets a Professional Guardian will seek approval from the Court. The Professional Guardian will offer the right of first refusal to purchase or obtain items of sentimental value to interested persons. Section 5: (a) Professional Guardians shall coordinate and monitor services needed by Wards to ensure that Wards are receiving the appropriate care and treatment services. Section 6: (b) Add "Informed Consent" to Definitions and define the term. (e) 5 Determine whether a Ward has previously stated preferences in regard to a decision of a particular nature. (e) 10 Change the term from "a Wards family" to "interested persons". Section 7: d. 4 Strike this part in it's entirety. Section 8: No comment Section 9: No comment Section 10: No comment Section 11: (b) Change to read: Professional Guardians shall respect the Wards privacy and dignity. Strike out the rest. (d) & (e) Strike both of these sections as they are not necessary. Section 12: (a) 1.a. Professional Guardians shall give priority to home or other community-based settings when consistent with a Ward's goals and preferences, current care needs and financial resources. Section 13: © 13. Change to read: Documentation of any goals or preferences expressed by the Ward that have been made known to the Professional Guardian. Strike ont the rest. (d) 2. Add to accomplish the best interest of the Ward. (d) 3. Strike out in entirety. Requires the guardian to participate in all care or planning conferences. It may be burdensome or expensive for the guardian to personally attend all snch conferences. The requirement of attendance by the guardian at all care or planning conferences is inconsistent with the provision that the guardian visit the Ward at least quarterly. Example: Hospice may staff a team care plan meeting every Tuesday morning on a given Ward where the guardian has never attended such meeting and may not receive notice of there even being a meeting though the guardian through this section could be held accountable for not being present. Suggest: Professional Guardian shall participate in care or planning conferences as needed to address issues concerning but not limited to residential, educational, vocational, or rehabilitation program of Wards within the rights delegated to the professional guardian by the court. Section 14: (e) Add "or history of decision making". (f) change interested parties to read interested "persons". (g) End after the word preferences. Strike the remaining. (k )Professional Guardians shall obtain a second opinion from a licensed physician. Add "when circumstances allow". (I) End after the word procedure. Strike the remaining. Section 15:: No comment. Section 16: 1. Professional Guardians may not directly provide housing, medical, legal, or other direct services to a Ward unless approved by the court. (b) l.b. Professional Guardians shall be independent from all service providers unless approved by the court. (b) 3. Strike in it's entirety. 16 (b)7. Further clarification of intent is requested. Section 17: © 2. Weigh the costs and benefits to the estate of the Ward unless doing so would cause substantial harm to a Ward. (d) Professional Guardians shall consider the current wishes and past practices of their Wards. If substantial harm to a Ward's physical, mental, emotional health, or property would result and there is no evidence of likely choice a Professional Guardian shall consider the best interests of the Ward. Relating to (n) This paragraph requires the guardian to employ Generally Accepted Accounting Principles (GAAP). Familiarity with GAAP principles and practices is generally only available through specific training as an accountant. This provision as written will require guardians to employ the services of an accountant except in the most simple of estates increasing cost to the Ward substantially. Section 18: 1 © Professional Guardians shall consult with beneficiaries who are known or reasonably should be known to the guardian. 18 (a) 2. (b) Outline the rights retained by the Ward. Strike the rest as this is the role of the Elisor and doing this as a guardian could be construed to be the unlicensed practice of law. 18. (a) 4. (a) Strike the word "monthly". 18. (a) 7. Add "and source of income". 18. (a) 10. On the termination of the guardianship or the death of a Ward, Professional Guardian shall facilitate the appropriate closing of the guardianship, submit a final accounting to the court, and petition for discharge. 18. (a) 12. Professional Guardians shall when appropriate, petition the court for authority to open a burial trust account and/or make funeral arrangements for Wards. (Statute currently allows for burial accounts and should continue to do so) (A prior court order is required to enter into funeral planning). Section 19: No comment. Section 20: 20 (b) 9. Professional Guardians shall not exchange anything of value associated with a guardianship referral. Section 21: No comment. Section 22: © A Professional Guardian serves until the court determines they are no longer necessary. NO. 58M-2-011, No comment. Jason Nelson From: Sent: To: Cc: Subject: Attachments: Collazo, Hector < hcollazo@co.pinellas.fl.us > Tuesday, November 8, 2016 8:27 AM Jason Nelson DiNatale, Anne M; Magnuson, Linda S Pinellas County Clerk's Inspector General OPPG Comments to the Proposed Rules Pinellas Co Clerk's IG OPPG Comments to the Proposed Rules 11-8-2016.pdf Importance: High Jason, Attached is my memo with my comments to the Proposed Rules for Parts I and II of Fla. Stat. § 744, for the OPPG rulemaking workshop to be held on November 9, 2016. Thank you for providing me an opportunity to be part of the process. Hector Collazo Jr. Inspector General/ Chief Audit Executive Division of Inspector General Office of Ken Burke, Clerk of the Circuit Court and Comptroller Pinellas County, Florida 510 Bay Ave., Clearwater, FL 33756 (727) 464-8375 I Fax (727) 464-8386 hcollazo@rnzyinellasclerk.org I www.rnypinellasclerk.org To Report Fraud, Waste & Abuse of County Resources Call (727) 45FRAUD (453-7283) Or visit us at the Division of Inspector General Website This message and all attachments are intended to be used exclusively by the addressee(s). It may contain information that is privileged, confidential and exempt from disclosure under applicable law. Unauthorized disclosure or use of this information is strictly prohibited. If you have received this communication in error, please permanently delete or dispose of the original message and any copies thereof and notify us directly at (727) 464~8371. Thank you. 1 Ken Burke, CPA CLERK OF THE CIRCUIT COURT AND COMPTROLLER PINELLAS COUNTY, FLORIDA Division of Inspector General Clerk of the County Court Recorder of Deeds Clerk and Accountant of the Board of County Commissioners Custodian of County Funds County Auditor 510 Bay Avenue Clearwater, FL 33756 Telephone: (727) 464-8371 Fax: (727) 464-8386 Fraud HoUine: (727) 45FRAUD (453·7283) Clerk's website: www.mypinellasclerk.org TO: Jason Nelson, Executive Director Office of Public & Professional Guardians Florida Department of Elder Affairs FROM: Hector Collazo Jr., Inspector General/Chief Audit Executive Division of Inspector General Office of Ken Burke, Clerk of the Circuit Court and Comptroller Pinellas County, Florida SUBJECT: Comments to Proposed Rules for Parts I and II of Fla. Stat.§ 744 DATE: November 8, 2016 This memo is to provide input to the rulemaking workshop to be held on November 9, 2016, to discuss statutory changes to Parts I and II of Chapter 744 of the Florida Statutes. However, I first wanted to highlight key reasons why this Inspector General Office has the expertise, insight, and understanding of this Statute. Our Office has been conducting guardianship audits and investigations in Pinellas County: • • • • • • • Since 2004. Reviewed over 5,800 cases. Identified over $16.3 million of questionable expenditures. Issued over 600 audits and/or investigative reports to the Sixth Judicial Circuit Court of Florida. Operate and handle the Pinellas County Guardianship Hotline, processing over 750 calls. Have a cooperative partnership with St. Petersburg College, providing training to family and professional guardians. Have a successful 12 year working relationship and partnership with the Probate, Guardianship, and Mental Health Division of the Sixth Judicial Circuit Court of Florida. An Accre~d Office ot ln!;ptctors ~em! Jason Nelson, Executive Director, OPPG Comments to Proposed Rules for Parts I and II of Fla. Stat.§ 744 November 8, 2016 Page 2 of 4 • • Successfully prosecuted with the State Attorney's Office a number of guardians and had numerous guardians discharged from their cases. Our Office was the first Clerk's office to initiate and promote the enhanced guardianship audits and investigative program in the State of Florida, training numerous Clerk's offices statewide. My comments are provided in the following table: Section II - Proposed Rule 58M-2.001 Professional Guardian Registration and Credit Investigation -Applicants must score a minimum of 75% on the Professional Guardian Competency Examination or must receive a waiver from the Department of Elder Affairs' Office of Public and Professional Guardians (OPPGl ....loo. 45go) 58M-2.001(1Xa) "Adverse credit history information' means the following ... (pg. 4590) 58M-2.001 (5)(c) and 58M-2.001 (6)- Referenced to 744.1085 FS loo. 4591) 58M-2.001(9)(a)(4) The previous licensing history with the OPPG including whether the relevant person was named in any regulatory action by the OPPG. loo. 45g1) 58M-2.001 (12) If a professional guardian hires an employee with assigned fiduciary responsibilities durino .... Inn. 4592) 58M-2.009(2)(a) - Any action taken by a Professional Guardian pursant to a court order shall not be deemed to be violation of this rule. 58M-2.009 (2)(b) Professional Guardians shall obtain court authorization for actions that are subiect to court annroval. Inn. 4592) 58M-2.009(2)(c) Professional Guardians shall clarify with the court any questions about the meaning of orders or directions from the court before taking action based on the orders or directions. 58M-2.009 (2) The Professional Guardian's Relationship to the Court (pg. 4592) 58M-2.009 (4)(e) - Professional Guardians shall keep interested persons advised of any pertinent medical issues or decisions when ordred to do so by the Court. loo. 4593) 58M-2.009(7) Standards for Decision Making (pg. 4594) Review Comments Define - Conditions for waivers should be specifically outlined. Additionally, there should be no further "grandfathering". Add7. Maximum number of missed payments. 8. Maximum percentaae of revolvina debt used. Update to: 744.2003(2) FS and 744.2003(3) respectively Include - " .... or any professional Licensing Agent in the State of Florida.' Define "fiduciary responsibilities' Typo - change "pursant" to "pursuant". . Include - "... pursuant to a lawful and valid court order ... Include - ".. .in advance except for emergency situations." Include - • ... orders or directions from the court in writing before taking ... • Add - (h) The Professional Guardian shall disclose any and all employees, agents, or contractors hired or assigned to perform any tasks or duties related to an active ouardianship. Typo - change "ordred' to "ordered" Add - (g) Professional Guardians shall document the decision making process to the extent possible, includino but not limited to, identified Jason Nelson, Executive Director, OPPG Comments to Proposed Rules for Parts I and II of Fla. Stat. § 744 November 8, 2016 Page 3 of 4 Section II - Proposed Rule 58M-2.009(13)(c) The Professional Guardian shall maintain a separate file for each Ward .... (pg. 4596) 58M-2.009 (16) Conflict of Interest: Ancillary and Support Services (pg. 4598) 58M-2.009 (17)(c)(2) Weigh the costs and benefits to the estate. (pg. 4598) Review Comments benefits or risks to the ward, expert opinions, Ward's wishes, and family input. Include - "The files containing confidential information and shall be maintained in a secure location." Definition of a secure location may include a locked file cabinet or room. Add - "9. Professional guardians shall not use assets of the guardianship to fight removal as guardian unless in the best interest of the ward and annroved bv the court." Expand to include that Professional Guardians shall "Weigh the costs and benefits to the gotential future of the ward and to the estate." 58M-2.009 (17)(h) Professional Guardians shall provide competent management of Ward's property and shall supervise all income and disbursements of the estate. (pg. 4598) Reword to "Professional Guardians shall provide competent management of Ward's property and shall s"pep,•ise be resgonsible for all income and disbursements of the estate guardianshiQ. 58M-2.009 (18)(a) Professional Guardian of the Property: Initial and Ongoing Responsibilities (pg. 4599) Add - "13. Professional Guardian shall file all tax returns, 1099s, and other forms as required by the IRS. 14. Professional Guardian shall charge reduced 'waiting time' rates for all waiting with the ward that exceeds one hour in lenqth.' Add - "d. When the Ward lives at home with other persons, Professional Guardians must establish and file an equitable expense allocation plan of household expenses with the Court. The plan should indicate what portion of those expenses will be oaid with the funds of the ward." Add - "13. The Professional Guardian shall not pay entertainment and restaurant expenses of more than one other person from the Ward's funds unless orior Court aonroval is obtained." Add - The Verified Inventory for and Emergency Temporary Guardian (ETG) must be filed no later than 60 days after appointment or 30 days after Plenary Guardianship Letters of a different person, whichever comes first. Remove: "significant" 58M-2.009(18)(a)(4) Professional Guardians shall develop and implement a budget for the management of income and assets ..... (pg. 4599) 56M-2.009(18)(a) Professional Guardians shall develop and implement a budget for the management of income and assets ..... (pg. 4599) 58M-2.009(18)(a)(7) Professional Guardians shall prepare an inventory of all property for which he or she is responsible. The inventory must list all the assets owned by Wards. (pg. 4599) 58M-2.009(18)(a)(8) All accountings must contain sufficient information to clearly describe all significant transactions affecting administration during the accounting period. All accountings must be comolete, accurate, and understandable. 56M-2.009(19)(a) Professional Guardians may not dispose of a Ward's real or personal property without giving notice to interested parties and qettinq Court aooroval. loa. 4599) Include - Petitions to dispose of property shall be accompanied by documentation of property value and photographs. Jason Nelson, Executive Director, OPPG Comments to Proposed Rules for Parts I and II of Fla. Stat.§ 744 November 8, 2016 Page 4 of 4 Section II - Proposed Rule 58M-2.009(20)(b)(1 )(a)) This standard does not prohibit Professional Guardians from consolidating and maintaining Wards' funds in joint accounts with other funds of other Wards. 58M-2.009(20)(b)(2)- Professional Guardians may not sell, encumber, convey, or otherwise transfer a Ward's real or personal property or any interest in that property to himself of herself, a spouse, a coworker, an employee, a member of the board of the agency of corporate Professional Guardian, an agent, or an attorney, or any corporation or trust in which the Professional Guardian has a substantial beneficial interest. (pg. 4600) 58M-2.009(22)(a) Professional Guardians are entitled to reasonable compensation for their services. (pg. 4601) 58M-2.009(22)(b) All fees related to the duties of the guardianship must be reviewed and approved by the court. Fees must be reasonable and be related only to guardianship duties. (pg. 4601) Throuahout document Review Comments Change to - This standard prohibits Professional Guardians from consolidating and maintaining Wards' funds in joint accounts with other funds of other Wards, unless the court should allow a joint account for Wards who are married and had orevious ioint accounts before the auardianship. Expand to include • .... any corporation or trust in which the Professional Guardian or a related party has a substantial beneficial interest." Include - • ... However, hourly rates billed may not exceed those established or allowed by the Court in each Circuit and in accordance with Section 744.108, Fla. Stat." Add - " Petitions for Professional Guardian fees must include the source of payment (e.g. guardianship, trust, etc.), if known. All guardian fees received relating to the services provided must be authorized by the Court, even if such fees are received from sources outside of the auardianshio, before beina paid to the auardian. Replace "estate" with "auardianship" Hector Collazo Jr. Inspector General/Chief Audit Executive Division of Inspector General Office of Ken Burke, Clerk of the Circuit Court and Comptroller Pinellas County, Florida Jason Nelson From: Sent: To: Trca, Roger Tuesday, November 8, 2016 12:06 PM Jason Nelson Palmieri, Anthony Comments to Proposed Rules for Parts I & II of Chapter 744, F.S. OPPG Rulemaking Comments Final Nov 8 2016.pdf Cc: Subject: Attachments: Hi Jason At your request, Anthony and I have attached our input for the rulemaking workshop to be held on November 9, 2016 discussing administrative rules for Parts I and II of Chapter 744, Fla. Stat. Thank you for providing the opportunity to improve the oversight of public and professional guardians. RogerTrca Inspector General Division of Inspector General RTrca@mypalmbeachclerk.com Constitutional Clerk & Comptroller Serving the Citizens of Palm Beach County 301 N. Olive Ave., 9th Floor West Palm Beach, FL 33401 561 355-2722 Direct www.myoalmbeachclerk.com Tell us how we're doing at www.mypalmbeachderk.com/survey. W"""' - Follow us ON TWITTER l.f1 llll\UI Bet ome a fan ON FAC:EBOOK Sign up for our E·NEWSLETTER Please be advised that Florida has a broad public records law, and all correspondence to me may be subject to disclosure. Under Florida public records laws email addresses are public records. If you do not want your email address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing. 1 November 8, 2016 SHARON R. BOCK Clerk & Comptroller Palm Beach County Jason Nelson, Esq. Executive Director Office of Public and Professional Guardians Department of Elder Affairs 4040 Esplanade Way Tallahassee, FL 32399 Via email: nelsonj@elderaffairs.org Subject: Comments to Proposed Rules for Parts I and II of Chapter 744, F.S. Dear Mr. Nelson: At your request, we are providing input for the rulemaking workshop to be held on November 9, 2016 discussing administrative rules for Parts I and II of Chapter 744, Fla. Stat. However, first, we wanted to highlight why Clerk and Comptroller Sharon R. Bock, Esq. and the Clerk's Inspector General Office has the expertise, insight, and understanding of the Florida Guardianship System. Division of Inspector General Public Integrity Unit 301 North Olive Avenue 9th Floor West Palm Beach, FL 33401 Guardianship Fraud Hotline: 561-355-FRAUD fraud@mypalmbeachclerk.com www.mypalmbea Tuesday, November 8, 2016 1:34 PM Jason Nelson Comments on Professional Guardian Rules Rule Comments.pdf Hello Jason, I am providing comments on the proposed rules for Parts I and II of Chapter 744, F.S.(attached). I understand that a workshop is being held on November 9. I appreciate the opportunity to provide input, and I will be pleased to assist in any way that I can. Regards, Bob Bob Melton, CPA, CIA, CFE, CIG Inspector General Office of Neil Kelly, Lake County Clerk of Courts PO Box 7800 Tavares, FL 32778 352-253-1644 }2_IJ1~.lton(t/lakecountvflerk.or_g Know of Fraud, Waste, or Abuse? Contact our hotline at (352)253-1643 or email fwa@lakecountyclerk.org Please Note: Florida has a very broad Public Records Law. Most written communications to or from State and Local Officials regarding State or Local business are public records available to the public and media upon request. Your email communications, including your email address, may therefore be subject to public disclosure. Confidentiality Notice: This message and any attachments ore for the sole use of the intended recipient(s) and may contain confidential and privileged information that is exempt from public disclosure. Any unauthorized review, use, disclosure, or distribution is prohibited. If you have received this message in error pfeose contact the sender {by phone or reply by electronic mail) and then destroy all copies of the original message. 1 Division of Inspector General Phone (352) 253-4930 Post Office Box 7800 Fox (352) 742-4534 Clerk of the Circuit Court Tavares, Florida 32778-7800 November 8, 2016 Mr. Jason Nelson, Executive Director Office of Public & Professional Guardians Florida Department of Elder Affairs 4040 Esplanade Way Tallahassee, FL 32399 Re: Proposed Guardianship Rules Dear Mr. Nelson: Thank you for the opportunity to provide comments on the proposed rules relating to standards for professional guardians. These rules set important standards to help ensure professional guardians provide adequate guardianship services to some of our most vulnerable citizens. In my position of Inspector General in the Office of the Lake County Clerk of Courts, and in my former position of Inspector General in the Office of the Pinellas County Clerk of Court and Comptroller, I have had years of experience in the audit and investigation of guardianships. I have also been part of a task force to develop best practices for audits of guardianships for the Clerks of Court. As a result, I am very much aware of the need for established professional standards. The proposed rules represent a good step forward in codifying standards to be followed and in holding professional guardians accountable for such. As a part of the Guardianship Alliance for the Investigation of Guardians, I have reviewed the proposed rules, and I am proposing changes to help ensure the rules accomplish these goals. My recommended additions and comments (as attached) are designed to curb abuses and bad practices that I have encountered over the years. I encourage you to carefully consider our recommendations. If I may be of further assistance or if I may answer any questions you have, please feel free to contact me at (352)253-4930. My comments are provided in the following table: Know of Fraud, Waste, or Abuse? Contact our hotline at (352) 742-4429 or email fwa@lakecountyclerk.org Jason Nelson, Executive Director, OPPG Comments to Proposed Rules for Parts I and II, Chapter 744 FS November 8, 2016 Section II - Proposed Rule 58M-2.001 Professional Guardian Registration and Credit Investigation -Applicants must score a minimum of 75% on the Professional Guardian Competency Examination or must receive a waiver from the Department of Elder Affairs' Office of Public and Professional Guardians (OPPG) .... (pg. 4590) 58M-2.001(1)(a) "Adverse credit history information" means the following ... (pg. 4590) 58M-2.001(5)(c) and 58M-2.001(6) - Referenced to 744.1085 FS (pg. 4591) 58M-2.001(9)(a)(4) The previous licensing history with the OPPG including whether the relevant person was named in any regulatory action by the OPPG. (pg. 4591) 58M-2.001 (12) If a professional guardian hires an employee with assigned fiduciary responsibilities during .... (pg. 4592) 58M-2.009(2)(a) -Any action taken by a Professional Guardian pursant to a court order shall not be deemed to be violation of this rule. 58M-2.009 (2)(b) Professional Guardians shall obtain court authorization for actions that are subject to court approval. (pg. 4592) 58M-2.009(2)(c) Professional Guardians shall clarify with the court any questions about the meaning of orders or directions from the court before taking action based on the orders or directions. 58M-2.009 (2) The Professional Guardian's Relationship to the Court (pg. 4592) I 58M-2.009 (4)(e)- Professio.nal Guardians shall keep interested persons advised of any pertinent . medical issues or decisions when ordred to do so by the Court. (pg. 4593) 58M-2.009(7) Standards for Decision Making (pg. 4594) . 58M-2.009(13)(c) The Professional Guardian shall Review Comments Define - Conditions for waivers should be specifically outlined. Additionally, there should be no further "grandfathering". Add7. Maximum number of missed payments. 8. Maximum percentage of revolving debt used. Update to: 744.2003(2) FS and 744.2003(3) respectively Include - " .... or any professional Licensing Agent in the State of Florida." Define "fiduciary responsibilities" Typo - change "pursant" to "pursuant". Include - " ... pursuant to a lawful and valid court order. .." Include - " ... in advance except for emergency situations." Include - " ... orders or directions from the court in writing before taking ... " Add - (h) The Professional Guardian shall disclose any and all employees, agents, or contractors hired or assigned to perform any tasks or duties related to an active guardianship. Typo - change "ordred" to "ordered" Add - (g) Professional Guardians shall document the decision making process to the extent possible, including but not limited to, identified benefits or risks to the ward, expert opinions, Ward's wishes, and family input. Include - "The files containing confidential Page 2 Jason Nelson, Executive Director, OPPG Comments to Proposed Rules for Parts I and II, Chapter 744 FS November 8, 2016 information and shall be maintained in a secure maintain a separate file for each Ward .... (pg. location." 4596) Definition of a secure location may include a locked file cabinet or room. Add - 7. Professional Guardian shall document visits to the Ward by signing facility visitor logs upon arrival and departure from facility if 58M-2.009(d) Professional Guardians shall visit Wards at least quarterly each year. available. Add "9. Professional guardians shall not use assets of the guardianship to fight removal as guardian unless in the best interest of the ward 58M-2.009 (16) Conflict of Interest: Ancillary and Support Services (pg. 4598) ' ' and approved by the court." Expand to include that Professional Guardians shall "Weigh the costs and benefits to the potential future of the ward and to the estate." 58M-2.009 (17)(c)(2) Weigh the costs and benefits to the estate. (pg. 4598) 58M-2.009 (17)(h) Professional Guardians shall provide competent management of Ward's property and shall supervise all income and disbursements of the estate. (pg. 4598) Reword to "Professional Guardians shall provide competent management of Ward's property and shall s~~eFvise be responsible for all income and disbursements of the estate guardianship. 58M-2.009 (lS)(a) Professional Guardian of the Property: Initial and Ongoing Responsibilities (pg. 4599) Add - "13. Professional Guardian shall file all tax returns, 1099s, and other forms as required by the IRS. 14. Professional Guardian shall charge reduced 'waiting time' rates for all waiting with the ward that exceeds one hour in length." Add- "d. When the Ward lives at home with other persons, Professional Guardians must establish and file an equitable expense allocation plan of household expenses with the Court. The plan should indicate what portion of those expenses will be paid with the funds of the 58M-2.009(18)(a)(4) Professional Guardians shall develop and implement a budget for the management of income and assets ..... (pg. 4599) ward. 11 58M-2.009(18)(a) Professional Guardians shall develop and implement a budget for the management of income and assets ..... (pg. 4599) Add - "13. The Professional Guardian shall not pay entertainment and restaurant expenses of more than one other person from the Ward's funds unless prior Court approval is obtained." 58M-2.009(18)(a)(7) Professional Guardians shall Add - The Verified Inventory for and Emergency prepare an inventory of all property for which he Temporary Guardian (ETG) must be filed no later or she is responsible. The inventory must list all than 60 days after appointment or 30 days after the assets owned by Wards. (pg. 4599) , Plenary Guardianship Letters of a different I person, whichever comes first. 58M-2.009(18)(a)(8) All accountings must contain Remove: "significant" sufficient information to clearly describe all I Page 3 Jason Nelson, Executive Director, OPPG Comments to Proposed Rules for Parts I and II, Chapter 744 FS November 8, 2016 significant transactions affecting administration during the accounting period. All accountings must be complete, accurate, and understandable. 58M-2.009(19){a) Professional Guardians may not dispose of a Ward's real or personal property without giving notice to interested parties and getting Court approval. (pg. 4599) 58M-2.009(20){b){l)(a)) This standard does not prohibit Professional Guardians from consolidating and maintaining Wards' funds in joint accounts with other funds of other Wards. Include - Petitions to dispose of property shall be accompanied by documentation of property value and photographs. Change to -This standard prohibits Professional Guardians from consolidating and maintaining Wards' funds in joint accounts with other funds of other Wards, unless the court should allow a joint account for Wards who are married and had previous joint accounts before the guardianship. 58M-2.009(20)(b){2)- Professional Guardians Expand to include ".... any corporation or trust in may not sell, encumber, convey, or otherwise which the Professional Guardian or a related l1fil!Y has a substantial beneficial interest." transfer a Ward's real or personal property or any interest in that property to himself of herself, a spouse, a coworker, an employee, a member of the board of the agency of corporate Professional Guardian, an agent, or an attorney, or any corporation or trust in which the Professional Guardian has a substantial beneficial interest. (pg. 4600) 58M-2.009(22){a) Professional Guardians are entitled to reasonable compensation for their services. (pg. 4601) Include - " ... However, hourly rates billed may not exceed those established or allowed by the Court in each Circuit and in accordance with Section 744.108, Fla. Stat." 58M-2.009(22)(b) All fees related to the duties of the guardianship must be reviewed and approved by the court. Fees must be reasonable and be related only to guardianship duties. (pg. 4601) Add - "Petitions for Professional Guardian fees must include the source of payment (e.g. guardianship, trust, etc.), if known. All guardian fees received relating to the services provided must be authorized by the Court, even if such fees are received from sources outside of the Fees guardianship, before being paid to the guardian. -Add - (e) Professional Guardians may not use funds of the ward to pay for costs associated with Throughout document investigations of misconduct of the Guardian. Replace "estate" with "guardianship" 58M-2.009(22) Professional Guardianship Service co;~ia,,,,, /~$~---Robert Melton, CPA, CFE, CIG Inspector General ' Jason Nelson From: Sent: To: Cc: Subject: Attachments: Victoria Heuler Tuesday, November 8, 2016 5:43 PM Jason Nelson Amelia Milton; Twyla Sketchley; emorris@elderlawassociates.com Written comments to OPPG proposed rule SBM-2.009 per Notice of Proposed Rule set for hearing November 9, 2016 Letter to Jason Nelson.pdf Dear Mr. Nelson: Please see the attached letter from Ellen Morris, Chair of the Elder Law Section. As always, we are available to answer questions or for further discussions. Thank you! Victoria. Victoria E. Heuler, B.C.S. Florida Bar Board Certified in Elder Law HEDLER-WAKEMAN LAW GROUP, P.L. 1677 Mahan Center Blvd. Tallahassee, Florida 32308 (850) 421-2400 telephone (850) 421-2403 facsimile victoria@hwelderlaw.com www.hwelderlaw.com Elder Law and Guardianship HC)Lll)/\ Y SCJl[f)lJLF: \\-'e \\'ill be closed Thursday. Novcn1bcr 24th and 1-'riday-, I-Juvc1nbcr .25th for Thunksgi\ ing. \Ve \vill abo be closed fro111 Friday l_)ccc1nber 23rd at 110011 through Friday, l)ece-1nbcr 30th. rhc ofTice \Vil] reopen \,1onday . Januciry 2nd ..Although the office \Vill be clnsed, \VC H'il! be checking e1nails and telephone nicssages. This email is from the Heuler-Wakeman Law Group, P.L. and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this email in error, please notify the sender immediately, delete the email from your computer and do not copy or disclose it to anyone else. If you are not an existing client of ours, do not construe anything in this email to make you a client unless it contains a specific statement to that effect and do not disclose anything to us in reply that you would expect us to hold in confidence. If you properly received this email as a client, co-counsel or retained expert of ours, you should maintain its contents in confidence to preserve the attorney-client or work product privilege that may be available to protect confidentiality. 1 CHAIR Ellen Morris Elder Law Associates, P.A. 7284 W. Palmetto Park Rd., Ste. 101 Boca Raton, FL 33433-3406 {561) 750-3850 THE FLORIDA BAR ELDER LAW SECTION emorris@elderlawassociates.com CHAIR-ELECT Collett P. Small Law Offices of Collett P. Small 2400 N. University Dr., Ste. 209 Pembroke Pines, FL 33024-3629 (954) 437-4603 csmall@small-collinslaw.com VICE CHAIRS Administrative Vice Chair Scott A. Selis Chiumento Selis Dwyer, P.l. 145 City Pl., Ste. 301 Palm Coast, Fl 32164-2481 (385) 445-8900, x109 sselis@palmcoastlaw.com Substantive Vice Chair Jason Waddell Waddell & Waddell, PA 1108-A N. 1ih Avenue#1 Pensacola, FL 32501 (850) 434-8500 jason@ourfamilyattorney, com SECRETARY Carolyn Landon 5707 Dixie Hwy., Ste. B West Palm Beach, FL 33405-3693 (561) 588-1212 carolyn@landonlaw.net TREASURER Steven E. Hitchcock Hitchcock law Group 635 Court Street, Ste. 202 Clearwater, Fl 33756 (727) 223-3644 hitchcocklaw@gmail.com IMMEDIATE PAST CHAIR David Hook The Hook law Group 4918 Floramar Terrace New Port Richey, FL 34652-3300 (727) 842-1001 November 8, 2016 Mr. Jason Nelson Director Office of Public and Professional Guardians Department of Elder Affairs 4040 Esplanade Way Tallahassee, Florida 32399 Dear Mr. Nelson: We have appreciated the opportunity to dialogue with you over the past few months about proposed rule 58M-2.009 regulating professional guardians in Florida. We are in receipt of the Notice of Proposed Rule and are aware that you are holding a hearing on the proposed rule on November 9'\ 2016. We acknowledge and appreciate that you made positive changes to the prior rule proposal. What follows in the remainder of this letter are our collective comments to the current proposed rule. We repeat here our concern that the proposed rule was created from the Florida State Guardianship Association's "Standards of Practice. Although helpful in guiding professional guardians, those standards are not legal mandates. Now, the standards are proposed as a rule and often conflict with existing statutes governing the behavior of professional guardians. At a minimum the standards create confusion about exactly what a professional guardian must do and what punishment will ensue for violation of the rule. In addition to the overall genesis of the proposed rule, we have the following comments and concerns: dhookesq@elderlawcenter.com BOARD LIAISON Sandra Diamond Seminole, FL PROGRAM ADMINISTRATOR Chris Hargrett The Florida Bar (850) 561-5625 chargrett@floridabar.org I. The term "interested person" is defined in section 731.20 I (23), Florida Statutes ("Interested person" means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved ... The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings."), which provision is incorporated into chapter 744, Florida Statutes, by section 744.1025, Florida Statutes ("The definitions contained in the Florida Probate Code shall be applicable to the Florida Guardianship Law, unless the context requires otherwise, insofar as such defmitions do not conflict with definitions contained in this law."). This definition should be used www.eldersection.org THE FLORIDA BAR• 651 EAST JEFFERSON STREET• TALLAHASSEE, FL 32399-2300 • (850) 561-5625 Mr. Jason Nelson, Director Office of Public and Professional Guardians Page 2 of3 November 8, 2016 instead of the proposed definition for "interested person" suggested in 58M-2.009(a)(l). 2. The term "family" or "family member" are inconsistent with the Florida Guardianship Law, Chapter 744, Florida Statutes. These terms are not used in chapter 744; rather, family would be considered by the court in determining who is an interested person entitled to notice and information regarding the ward. The use of "family" or "family member" is inconsistent with existing law and creates a new class of people to whom the guardian will have obligations. A professional guardian is required to protect the privacy of his or her ward and will be obligated to follow only Florida law when in conflict with this rule. 3. The term "friend" is also inconsistent with the dictates of chapter 744, and to the extent that this rule requires that a guardian extend the scope of who is an interested person in contravention to Florida law or a court's determination, the rule will create a conflict for the guardian such that the guardian will be legally required only to adhere to Florida law and not this rule. 4. The term "significant occurrence" is overly broad (it includes a "concern", and a "phenomenon") and vague ("happenstance" and "goings-on"). To the extent that the rule requires a guardian to notify one or more persons of a "significant occurrence", this term is so broad and vague that it could and would include the guardian notifying a person entitled to notice every time the ward has a loose stool. Wouldn't that be a "fact" or a "happening" under the definition of "significant occurrence"? This cannot possibly be the goal of this rule, but if it is, it is wholly unreasonable and creates significant burdens on the professional guardian, not to mention increasing the expense to the ward for a multitude of unnecessary reporting. 5. 58M-2.009(2)(e) requires that all professional guardians submit their fee and cost requests to the court prior to payment or reimbursement to the guardian. This is not required by chapter 744 and, therefore, imposes an obligation on the guardian that is not required under Florida law. 6. 58M-2.009(1 l)(d) and (e) appear to conflict with each other. Subsection (d) requires that the guardian assist the ward in communicating with third parties unless such contact/disclosure would substantially harm the ward. Subsection (e) requires that the guardian keep information about the ward confidential where disclosure would be detrimental to the ward's well-being or would subject the ward's estate to undue risk. If a guardian believes a certain disclosure of information to a third party would be detrimental to the ward's well-being, but does not rise to the level of causing "substantial harm", how does the guardian reconcile his or her responsibility under this rule? Additionally, the terms "substantially harm" and "detrimental" are not defined and may lead to various interpretations in meaning. Mr. Jason Nelson, Director Office of Public and Professional Guardians Page 3 of3 November 8, 2016 7. 58M-2.009(15)(a) is a statement and not a requirement to be followed by a guardian. Subsections (a) and (b) of that provision should be combined. 8. Please note that pursuant to section 765.40l(l)(a), Florida Statutes (Florida's health care proxy law), the guardian is the first designated health care proxy entitled to make an endof-life decision for the ward. Section 765.401(2), Florida Statutes, requires that the guardian's health care or end-of-life decision for a ward be based on "the proxy's informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn." Obtaining prior court approval - as this proposed rule portends to require in 58M2.009(15)(a) - is contrary to chapter 744, Florida Statutes, and chapter 765, Florida Statutes. The guardian is simply not required to obtain court approval to make a medical or mental health decision unless the decision involves an extraordinary procedure listed in 744.3215(4), Florida Statutes. End-of-life decisions by a guardian do not require court approval and the proposed rule's attempt to require court approval in such a situation is contrary to the law that a professional guardian is required to follow. 9. Section 58M-2.009(17)(n) now requires a professional guardian to "employ Generally Accepted Accounting Principles when managing an estate." This new term-of-art should be defined. Additionally, rather than use the word "estate," the word "property" should be used to be consistent with chapter 744, Florida Statutes. 10. The word "views" in 58M-2.009(19)(b) should be replaced with the word "wishes" or "preferences" to maintain consistency with chapter 744, Florida Statutes. Thank you for your consideration of these comments and concerns, and do not hesitate to call me, or Victoria Heuler in Tallahassee at (850) 421-2400, or Twyla Sketchley in Tallahassee at (850) 894-0152. Sincerely yours, (' (y;~ _/~---~ ·'\\ 1. /) /1 «/j { /.. ,--__ ~-~ j Ellen Morris, Chair Florida Bar Elder Law Section Jason Nelson From: Sent: To: Subject: Attachments: Solomon-Cuthbert, Wynter Wednesday, November 9, 2016 9:22 AM Amelia Milton; Jason Nelson RULES COMMITTEE 11092016091924.pdf 11VyntcrJI. .Sofornon-Cutfi.6ert, C. C. 'E. Court Progra111 .Sj1cciafrst I I for <;/uarcfiansfi.1]1 Ffon.cfa 'E[der Crime q.,rc·vcntion Practitioner Ninth }ucficia[ Circuit Court of 1Fforicfa 425 ]'(. Orange j/'ven ue Or[ancfo, 'f[oricfa 32801 1 407-836-6058 407-835-5016 (jacsi111ife) 407-45 6-3 760 (ce[fu[ar tefepfi.011e) 1 DEPARTMENT OF ELDER AFFAIRS Statewide Public Guardianship Office RULE NOS.:RULE TITLES: 58M 2.001 Professional Guardian Registration 58M-2.009 Standards of Practice 58M-2.011 Disciplinary Action and Guidelines PURPOSE AND EFFECT: The purpose of the proposed rulemaking is to implement statutory changes to Parts 1 and 8 n of Ch. 744, F.S., and to the Department's oversight of public and professional guardians. SUMMARY: The rulemaking establishes standards of practice, disciplinary guidelines, and credit investigation procedures for public and professional guardians as well as implements revisions of rules as needed based on legislative changes. SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has been prepared by the Agency. The main economic impact of the proposed rule is likely generated through the rule's requirement that professional guardians receive court approval of their gllardianship fees and through the rule's record keeping requirements. A full copy of the Statement of Estimated Regulatory Costs can be obtained online at http://elderaffai rs. state. fl .us/doea/op pg_rulemaki ng. php The Agency bas determined that the proposed rule is expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: Through the preparation of a SERC, the Department has determined that proposed rule 58M2.009, Florida Administrative Code, concerning standards of practice for professional guardians, will have a significant regulatory impact on small businesses and is likely to increa..c;,;e regulatory costs in excess of$ t ,000,000 within the first five years of implementation. Any person who wishes to provide infonnation regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice. RULEMAKJNG AUTHORITY: 744.2001(2)(b), 744.2002(6), 744.3135(5)(b), 744.20041 FS. LAW IMPLEMENTED: 744.102(17), 744.2001(2)(b), 744.2002, 744.2003, 744.20041 FS. IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD ATTHE DATE, TIME AND PLACE SHOWN BELOW: DATE AND TIME: November 9, 2016, 9:30 a.m. -12:30 p.m. PLACE: Florida Department of Elder Affairs, 4040 Esplanade Way, Room 301, Tallahassee, Florida 32399 To participate in the rule workshop by telephone please call: 1(888)670-3525 participation code: 5964230985 Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Jason Nelson at Department of Elder Affairs, Office of Public and Professional Guardians, 4040 Esplanade Way, Tallahassee, FL 32399; email: nelsonj@elderaffairs.org; telephone: (850)414-2113. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice). THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Jason Nelson at Department of Elder Affairs, Office of Public and Professional Guardians, 4040 Esplanade Way, Tallahassee, FL 32399; email: nelsonj@elderaffairs.org; telephone: (850)414-2113 THE FULL TEXT OF THE PROPOSED RULE IS: 58M-2.001 Professional Guardian Registration and Credit Investigation. Applicants must score a mini1nu1n of 75~~'0 on the Professional Guardian (~ompetency Exa1nination or ntust receive a \\·aivcr fron1 the Departn1ent of Elder A fTairs · Office of Public and Professional Guardians (OPPGlState\vide Public Guardianship f)flicc CSPGOl before the application for registration will be considered. (1) Definitions As used in this rule the term: fa) "Adverse credit history information" means the following: 1. Personal bankruptcy within the orevious year. 2. Bankn1ptcy 'vithin..!.hurcvious year oCanv organization ba-;ed on C\'ents that occurred while the relevant person was a control person. 3. Outstanding tax lien or other governmental lien. 4. Out~1anding judgrnent based upon grounds of fraud. embezzlement. misrepresentation. or deceit. 5. ()pen collection account or charged~off account that re1nains unpaid. except accounts related solely to unpaid medical expenses. 6. Foreclosure on personally owned property within the last 5 years. tl?l..:Charged·ofl'' 1neans an account that has been identified by the creditor as an uncollectable debt. ffiEB Persons who are required to register with the OPPG De13artmeF1t ef E18er i\f:fairs' State·,a,cide P1:1bliG G1:1tardiaAel=iif3 Off'ise (SPGO~ as a professional guardian must complete the Professional Guardian Registration Fonn, DOENOPPG SilGG Form 001, XXXX 2016 Marnh 2GG8, which is incorporated herein by reference and may be obtained from the Office of Public and Professional Guardians State·.\iele Pu.blie G1:1ar8ianshif3 OfHee, Department of Elder Affairs, 4040 Esplanade Way, Tallahassee, Florida 32399-7000, or at http://elderaffairs.stateJl.us/english!public.html. The Professional Guardian Employee Registration Form, DOENOPPG Sl'GG Form 002, XXX 2016 Ma•eh 2GQ8 which is incorporated herein by reference and may be obtained from the OPPG SPGG or at http://elderaff2irs.state.fl.us/english/pub!ic.html must also be completed and submitted for all Professional Guardian Employees. illRt The registration forn1 shall be signed by the registrant or corporate officer if the registrant is a corporation. ~The completed registration form shall be filed with the OPPG Sta!ewise P•hlie G•anlianship Of!iee, by hand-delivery or mail. Facsimile submissions \Viii not be accepted. illt41 The fol!o\ving items must either accompany the registration form or must be on file with the OPPG SPGG, for the registration to be deemed cornplete: (a) A complete credit report, including all pages, from a nationally recognized credit agency. A nationally recognized credit agency shall mean a credil agency that obtains credit information both within and outside the State of Florida; validates, upd<;ltes, and maintains the accuracy of credit information obtained. The report must reflect the financial responsibility of the registrant and provide full, accurate, current, and complete information regarding payment history and credit rating. (b) Criminal history record for guardians as specified in Section 744.3135, F.S.; (c) Documentation of bonding as required under Section 744.1085, F.S.; (filW For the initial registration, the applicant must submit proof of completion of the required training, ao:; we!! as, proof of competency by evidence of satisfactory completion of the Department of Elder Affairs approved examination unless waived in accordance with Section 744.1085(8), F.S. For annual renewals, proof of receipt of the minimum continuing education requirements must be submitted, if not on file. lllte-1 A registration fee of thirty.five dollars ($35) for each professional guardian in the form of a personal check, money order, or cashier's check made payable to the Statev.:ide Public Guardianship Office must be submitted with the registration form. C8) Adverse Credit l-Jistorv lnforn1ation. If an applicant's credit report or responses to the registration application contains adverse credit histOD' information. the ()PPG will notify the applicant in \\Titing of the specific iterns constituting adverse credit histo1y information. The notification \\'ill also inforn1 the applicant of the: (a) ()pportunity to explain the circumstances surrounding the specific iterns and provide any other relevant inforn1atlon thai the applican1 \\·ishes the OPPG to consider surroundi1.uu.!lc specific iten1s: Cb) Docun1ents that the OPPG requires in ordc:r to complete its revieu· of the specific itcrns. The requested documents provided by the applicant must be legible. If the docu1nents requested above cannot be obtained. the applicant shall subn1it evidence oftha1 facl in order for the registration application to ~e deemed complete. EvidenL·c that docurnents cannot be obtained shall consist of a u-·rittcn staten1ent from the agency's or creditor's records custodian thal is \Vritten on the aeency's or creditor's letterhead: indicates that the agency or the creditor does not have any record of such matter or that the record v.·as lost. da1naged. or destroyed. or cannot othi:rwise be produced and provide a state1ncn1 as to v.'hv the record cannot be produced· and is signed by the agency's or creditor's records custodian. (9) Procedure for Reviewing Adverse Credit Historv Infonnation. .GO PeFm QQl. All fees must be received with the completed registration fonn prior to the registration being processed by the OPPG SJ.!GQ. f.!1.}{9} If a professional guardian hires an employee with assigned fiduciary responsibilities during the registration period, the professional guardian shall submit an amended DOENOPPG SPOO Fonn 001 that includes the new employee information to the OPPG SPGG for approval prior to the employee assuming any fiduciary responsibilities. Rulemaking Authority 744.2002161 711.IQ&lf6) 7443135(5/(b/ FS law Implemented 744.102(17). 744.2002 71UQS~. 744.2003 711.1985, 744.3135 FS History-New 5-4-03, Amended 12-12-05. 3-17-08.~-- 58M-2.009 Standards of Practice. (I) DEFINITIONS (a) In addition to the tenns defined in C'hapter 744. f.S .. the following definitions are.applicable in this rule: I. "Interested Person .. nieans a person identified as an interested person in a guardianship proceeding. The 1neanin as it relates to articlular \\·ards ma' var · fro1n time to time and must be determined the Court accordin to the particular matter inolved. ~ 2. "Family" or ''Family Member" means a person or persons who are: a. A relative of an individual within the third degree by blood or marriage. or ~ \ b. The stepoarent ofa minor if the stepparent is currently married to the parent of the minor and is not a partv in a pending dissolution. separate 1naintenancc. domestic violence. or other civil or criminal proceeding in any court of competent jurisdiction involving one or both of the 111inor's parents as an adverse partv. 3. "Friend" means a person whom an individual knows and with whom the individual has a bond of mutual affection. 1 ±,_,~·t\lu~~~:.J!leilOS ;_mr ,,·jllful a'°I ur 1hrca1enOO art by a rclati\'C. care-giver. or household n1e1nb~r. \\'IH£h i.-::aus.es or is likely lo 4.:ausc significa111 irnpairn1ent to a \\'ard's nhvsica1. U!~.U.fil, nr &:-IHl)lional health. Abuse includes acts iltlif..Qffii5'sions, 5 ...Ncglccl'' n1eans !he failure ,gr 0111issiol) ()Jl thi."' Dill1 of a i.:an;~ivcr or guardian to,,.,nro,·id~ lhe care. and scrvi(cs ncccssarv to n1aintain the phvsical ~J!.d 1nt:-ntal health of a \Vard. including. hut not..Jin.!i.t.W. to. food. clothing. medicine. shelter. supervision. and 1ncdical services. \\'hich a prudent person vtould consider ~rial for the \\'ell-being of lhc \Vard. The t1:rn1 '·neglect" also nleans the fajlure of a caregi\.'cr or guardian to nliYi~.!! reasnnable- effort to prolt'"tl a \Vat·mcnon; happenstance. &0.i~ adventure. happening; accident. or. casualty that affects a Wat!l, !2l THE PROFESSIQNAL GUARDIAN'S RELA TIONSHJP TO IllE COURT. (a) Prof¢ssional Guardians shall kno\,. the: e.·dent of the OO\\'crs and the lim_itations of authori1y i;rantt:d to them by 1he court and all their dc..-cisions and actions shall he consist£nt \ldth court orders. Any action taken by a Professional Guardian pursant to a l·ourt ordt:-r shaH not be deemed to be \'iolation of this rule, (bl Professional Guardians shall obtain court authorization for actions tl1at are subje\~1 to court approval. (c) Professional Guardians shaH clarify v.·ith the court anv questions: ajmy.1JJ1e n1eaning of order~ or dirc,ctinns from the court before taking action based on the orders or directions. f dl Professional Guardians shaH s.eck assisla_'lf._~ a!~ needed to fulfill rt'"Spl1nsibilHies to the- \\1a,rd_2,Jill.9s?Llbru guardianship. tel All paytnen1s 10 Professional Guardians fro1n the assets of a \Varel shall be- subn1ined lo the court for prior approval and shall follow the requirements of Section 744.108. F.S. LD". Professional Guardians shall submit reports regarding the status ofJhfiJ..:~.~Jirds to lhe cour1 a'i nrdr:rr:d by the court and required by Chanter 744. F.S. 7. lgl Prof~sional Guardians shall nutifv the court of anJ:.,£hill.lgf,iJ.L.~h£ capacity of a \Vard that \\'arrants a r·estri~tion of the Professional fJuardian·s au1hori1y \i,·ithin il'rc-asonablc pcri(}ds>JJin1e"tnder the circu111stan("t'S. (3) THE PROFESSIONAL GUARDIAN'S PROFESSIONAL RELA TlQN~!ili!P WITH THEW ARD. fa) Professional Guardians shall a\"oid personal relationships with \Vards undc-r their guardianship. tht'ir \Vard's ~Jll.JJ,lJjr \Va1d's friends. unles'.'i the Proressional Guardian is a tarnilv mcmlli:J~. or unless such a rl"lationship existed before the apoointment of the Professional Guardian. £"11ti1nen1al ,-alue ), 1ncdL~erate 1Nilh olher_liurr9gi-!~~..!L~£l~LQJ'J-n1akers for \\'ards. 1·hese include, \\'here apj?licahlc.J![!.Y..Q!llf.J..,CUardians. agents undt•r a po\\·cr of auon1~.Y~J1g~hh care- proxie~. trus1i:cs. t.S. 1Jcpar1ment of\!t"tcran~~_A_ffi!fil..fi4!t9.?.ries, and rt'prt:s.entativc payees. 16) INFORMED CONSENT. (a) fh..~isions tha! Professional Guardians n1akc on behalf of their \Vard:o; under guardian.'i-hip shall b£ based 011 the principle oflnfonned Consent. lb_) lnfonnc-d Consent is a dei;i.sion n1aker·s agreernent to a particular course of ?£tj-011 based lln a full disclosure of the facts needed to make the decision intelligently. tel Jo have Informed Consent a decision maker n1ust have adcouate information on the issuc.,Jnti~t hi: able to take voluntary action. and must not be coerced. fdl Professional Guardians ~iand in the pl_acc of \\!@rds and are entitled to the" sa1nc infonnatlon. and freedoin of choice as a \Vard would ha"e n:ce-i\·cd if the Ward wen;- nol undc1 guardians.hip. fel Jn evalua1ing each rc9ucstt'd decision. ProfC:s-sional fiuardians shall dt) the fOllo\~'inir LJifil:.f a clear understanding of the issue" for "·hich informed consent is being sought. 2_ l1avc a clear undcrstandinJt..Qf the options. t"-xpccte.d outcomes. ris.ks an~d bc_ncfits of earh a!trcrnati\ t'. 3. Detennine the conditions that necessitate treatment or action. 4. Ma.ximizc the participation of \Vards in ..1tQsf.£.r.'1anding tht" fact~ and diri:cting a de·cjfilQ!L. IO rhe C".\h:·nt possible. 5. lle-tern1inr \\-hether a \Vard has pre\·iously statc-d preferences in regard to a dt.x·ision oft bis 11a11.1r~. §. Detennine ·why this decision needs to be madc,nn~_rather than later. 7, lJetennint'" what \Viii happen ifa dccisig_Qj~JJJ~C...!.r;:i take no ai:tion. ~LJ)ctennine \\-hat 1he least n::s.tricti\·e ~hc-mati\-c is forJfil'._.sitt!jHion, 9. Obtain a second medical or professional opinion. ifnecessarv. I 0. Obtain l~.fi:~!:!!]<',lJlQ!LQrjnpJ!t fron1 a \\'ard's fan1il\' and fro~LQ~h~LJH-9f~.~loni!ls: and. I I. Obtain written documentation of all reoons relevant to each d~ C7l STANPARPS FOR DECISION-MAKING. (al Professional (Juardians shall as.si~1 and en~~ouragt" \Vard:-; to act on ~h~r O\\'n behalf and hl part1\.":ipatc- in decisions. (b) ProfCssional (iuar£1ia~_shall. cons1stcn! \\·ith court orders and statc".'""!!atL.!1~ cx,~rcise au1hon1y nnlv as necessitated by !he limitations of the Ward. jl") Each decision n1ade by_il,J?rofes.~ionat tiuardian ~hall be an 1ntOrn1cd dc~ision hased ()Jl tht.· pnm.·1pk· of Informed Consent as set forth in subsection (6). !d) PfL)ftssional (Juardians shall idcntif\· and advocatcJor tb.s:.J!!-)ills. ni:c:ds.. and pn.-:lt:rcnl.'t..~ of their \Vardi, 1. Professional Guardians shall ask their Wards what they want. f."l(,.e \VJ.!!'£ has diflir:-ultv e>.nrc:ssing whal ht." or she ~cants. his or her !~1nfs-5sjofu.1! (h1~u·dian shall. to !ht.• t·xtcnt [!!1~1?iliJe. heJ.v..JJlt.1\'ard e"prr.~ss his 01 her goals. needs. and prC"k·rcnces. }.:..fil!~~~\'ard,_e\en \\'ith assistan~~c:. cannot cxpn:~!I his or her u:oals and prefC££t)£CS. l'nJft>ssiunal Guardians ~!!f!U-'ic-ek input frotn others frnniliar with !hr \\lard to dt:-tcnnini: \\'bat the \Vard111~·. hav-c v.·anled. 4 To the_ extent tlJ~t a \\·ard's goals and prcfC:H·rH.:t"s ha\'l. been n1adc l-.110\\'11 to a ProfesS;!QHf!.1. <_Juardi.an, the Professional (iuardian shall hnnoJ:_Jh~)se....,.g.Q.~~~-JH..~mfere-n~:c.s. i..'~l-l'pt \\ht:n 10110"-ing the \\'ard·s ..£9.fl.J5_,~ntl_ pr<.>fCrences \\"ould cause siunificant in1paim1ent to a \Vard's (el Substituted Judgment. ph\sical.;....~nt~.-Q!:.SJ11Q.tiilnalJ1_e;;ihh. U!!hstjluted Judg1nent is a principle t.)f d1.--sision-rnal..ing wh1l'h n:quirt.·~ the guardian to cons1d,·r the decision their \\'ard v.·ould have n1adc \1.:hcn the \\'arti.lli!d capacity_and use cha1 as lhe guiding force in any surrogatl' dcri~ion a guardian makes. 2. Substituted Judgnltnl shall b~ ttscd \~:hco rnaking dc-cisions on behalf of a ward except \Vhcn Jollowj11g the \\"ard'f. \"'ishes \1t·ould C~l}i;~ }i,g_nitica1u ioip3irnie11t h) a \\'ard·s physical. 111cn1al. or crnotional health . or \rhcn a Profess.ional Guardian cannot estahlishjL~Jy.fl's goals and.JJrefen:nl.:eS. t\"en \\·i1h support. CO Best Interest. 1. Bt.."St Jnteresl is the principle of dt"cision·making that should OC used only ~-1\1 ard ha.i;. never had capacitv \\'hen o \\latd"s goals and prcfercnci:s cannol be ascertained even \\'ith support. or \\'hc11 fl)llQ\\'ing a \\'ard's \vi~hes would cause significant in111airn1ent to a \\'ard's phvsical. n1L·ntal. oi::.cmotjg!lilJJ1gJ!J,1.~Q.L,h.!i_QLher property. 2. The lk'!<-1 lnterest principle requiri:s a guardian to ('onsider the least restrictir~£ill!D!£,,Q.[J!~Ji_Q!Lh.t.PJQVirle fQ! !~ nee4rnflt Ward. 3. The ftest lntereM principle r~guires guardians lo consider a \Vard·~ past practice and evaluate c\-'idcnce of his or her chojces. ~-The: Best lntC'rest principle reguin.·~ th~ course of action that n1axinli?-~s \\'hat is h¢!'11 for a \Vard and that includes considera1ion of the least intrusive. 111ost normalizine:. and least restrictive course of actinn 1~~.hlr. gi\'en the needs of the Ward. (8) LEAST RESTRICTIVE ALTERNATIVE. (a) When n1aking a decision. Professional Guardians shall carefullv C\'aluate the ahcrfil!!jvi;s that arc available and choose the one tha1 bl>sl meets the personal and financial goals. needs. and prcfCrcnces of \Vards. unde1· their gu,al'dianshiP. v. lllle placing •hie least restrictions on 1l1_ abilities. in all decisions th'l!Jlff~bi.nuu hers..lQ. !!£!..ruLlU~...Q.L.bg own behalf in all matters 1n which the Ward 1s abk- hl do S\1. and to dcvclnp or regain his or hC'r O\\·n capacil\' to !he n1aximun1 cxteJJlllQS'iihl£~ (d) lht' Profcssiona! (juardian shall whrnt.'vcr possible. seek to cnsurl' that thC' \\lard !"ads Jhs_JJ~ll!1U1.£. p1oress. If the \\'ard is unabk~ !ll lead the pr,Jcess. 1ht Prol'r.=-ssional Guardian shall \\'hencvcr pos~ihlc. seek their._,. i"' ~ participation .,... \._~ i 101 Till PROFESS!o:-.;AL GUARl>IA:-.;·s l>UllES REGARL>l:-.;G DIVERSITY \:-,;[) PERSO!\AI. \ ~ PREFERENCES OF THE WARD t.i!Lfrofc::Ss1011a! (iua1dians ~hall dl!"lcnnioe the CXh.~nl h°). which \Vani:i. under gua1dian'ihip 1dent1fy wi1h uar1 i1: ulat .J:tlufil_,,xd!£.i9.M~ .J~DiL£Ylillii!L3:..aj!!£1'.J.~Q dct c1J11jJJS_.tb£$..Si!l.\!~~_,\J~_rg!!.:5.~PJlilL!llli!! confidential. c~cc-pt \~·he-n it 1s neo1.·e;sar\· to disclosc such personal information for the best interests of a Ward. 5. To adhere tq the 1equiremenls of subs.ection ( J 7t l)ut1t..~ of the Profcs~ional (iuaniia1) of lht Pronerl\-· and -~ubsl·clion ! 181 Profcssi(~u~LQ.w.rdif!!.LQ(th1,.~ Propeny: hulia! and Onl!oing Ri:sp_Q.nsihili!it!b.JQ t_hc extent that llK· Professional GuarQjrutQf a \\'a.rd ha$ bc-¢n authoriled b\ thl: court to manage a \\'ard· s prQL>£!'.!ii. 6. 1u petition tl)f-,~~j_WJt focl_in1ita1ion or ten11ination or tht- guanilanship when a \\-'arQ._[!!l..lillill~ rni:ctslt)f \\'O.S i1nposi"d. or \\'hC"n then: is an cffc-1.:ti\·c altcrnalL\.£._~~~t!-i!abl~, and 7, To report to tht" ()fiice of Public and Profe!isional JiMardians. lhe llepartn1~nt 1,.lf C'hilJr~n and Fan1ilics · /~Q!!l! Protective Services Unit and local law enforcement incidents of abuse. neglect and/or exploitation as defined by standard pursuant to which tl!,~Jru..ardians.hip 7/ rot154 H w/ h:p11; J•/ t n lt1es~~ f4 ,-ftf<,, see l .· czd:i.11[ e..., \ (no!)· hn.~I~ state statutes within a reasonable period of time under 1he circun1stances. (13l INITIAL AND ONGOING RESPONSIB!LJTIES fa) \Vlth the proper authority. Professional Guardian~ shall l-.. in1Htl Ciuardj);JJ!-3.hall a\..'I 111 ru.·c...irdani;c \\'ith the \\'ard·5 prior gc-ncral stah.~1ncnts. actions. values. and preferen-ces tq_Jhc e~~ent the P1ofessionnl Guardian actually knows or should kno'.'.' of them . .thllfJ! \Vard's preferences are unkno\VI\ and unascertainable. a Professional Guardian shall act in accordance \\'ilh reasonable infonnation received fron1 professionals a,nd persons v.·ho den1ons1rate sul1'iricn1 in!erest in the Ward's welfare to determine the \\1ard's best interests. which determination shall include consideration of consequences for others that an individual in the \\lard's circun1stances would consider. (j) .~bsent an emergency or a \\lard's cxecutinn of a living \Viii. durahJe 1)1,.)\Ver of atlorn1:v fOr hL·alth care. or other advance directive declaration of intent that clearly indicates a \Vard's wishes with respect to a 1nedical joter\'ention, a Professional Guilrdian \\.·ho has authority mav not grant or dcnv authorization f!)r a fnedical j_ptcrycnti_on until he or she has given c-arefu! consideration to the criteria contained in subsections. {6) and (7). {j) Jn the e~~nt (lf an emergency. <1 Professional Guardian who has authoriiy to 1nakc: health carf..f!ccisions shall grant or deny authorization of emergency medical treatment based on a reasonable a..ssessrTl~D,LQf the criteria contained in subsections (6) and (7). \dthin the ti1ne allotted bv the cmcrgcncv. (k) Professional Guardians shall seek a second 1nedical opinion for any medical trcatn1cnt.£!I_intervention that \vould cause a reasonf!Q.l~~l!~~.illlJ£UiJL,_~J)J:j.!1sircumstances \\'here anv 1nedical intcr\'cntion pose.o; a signific-an! risk to a Ward. Professional Guardians shall obtain a sec-ond opinion from a licensed physician. ([) Profrssional Guardians shall communicate \Vith the treating medicgl...I![flvider befor-e authorizing or denying any treatment or procedure that has been previously approved. (n1) Professional Guardians shall seek to ensure that appropriate:- paHiati\'c can.· is incorporaJ_~_ into all health care. unless not in accordance with a Ward's preferences and values. (151 DECISION-MAKING CONCERNING WITHOLDING AND WITHDRAW& OF MEDICAL TREATMENT [fil_There are circu1ns1ances in v.·hich, v.·ith the approval of the court it is legally and ~tl]if.:Pllv lustifiable lo c-onscnt to the \~'ithhold\!lJ:!._QL~~·_ithdr~nval .Qf~l.1J.£9jcal treannent. inclllding anifidal!y provided nutrition ang .hydration. on behalf of a Ward under guardianship. (b) lf a \\!ard t'XoreSSt'd or cune:nt!y expresses a preference regarding the v.·it.PJ1olding or \\'ithdra~\·al of medical treatment a Professional Guardian shall follo""' the \vishes of th_e Ward. If the Ward's current \Vishes are in conflict \\·ith \\'ishc-S previously expressed \vhen the \Vard had capacitv Professional Q.!H!_i:d,iJIBJ:i _shall have- this ethical dilemma submitted to the court for direction. (t) \\'hen makin~ this decision on bch;.!lf of a \\"ard. Professional (Juard1ans shall gather and docun1ent infonnation as outlined in subsection (6) and shall follov• subsection f7). (161 CONFLICT OF INTEREST; ANCILLARY A,'iD SUPPORT SERV!\;ES" WJ.>rofessional Guardians shall avoid all conflicts of interest and selfp//q''. fo..,.- fetl:.\'YQ(::,: esrec.ttlly .ulien t11e W Professional GuaQ!japs shall n1anagc tht" l':Stillt' on!)· for th~ bi:ncfit of the \Vard or a.; directed b~,. the Ctmn. l il Professional (iuar..qjans shall keep estate a"-st:ls safe bv ~wJJ1g iK'Curalt> n:cords of alt tra.n~actions and be ablf tu fulh ac1.·ounl fnr all .the assets in the- \'State- HI the time o( the-_ Professional (Juardian 's appqjntinent h\· the Court. Ck) Proli:ssional (Juardians sbfil.! keel) estalr:- nitir1c-y separate fron1 their n~rsonal rnont"y Guardians shall 1nak~ clain1s agains;t others on behalf of the- estate \1:hcn det'n1cd in the- h£51 imst of the \Vard and shall defend againsl acJillri~ that would result in a Joss <,f c5tate as.se!s. l!lU.J~.r__ptCssion~I tiua1dian~ shall avoly state la"·.. regarding pnide-nt in\'estmcnt pra_~:lif~ 1ndud1ng seeking rcspon~iblc cnnsuhativn with and dC'li:gatinn to pcxiplc \\'ith anproptiati: exps:rti~ is nccsJLWJ:' to 1nanagc tilt' estalr-. tn) Profession~! (}uardians shall ernplov Generally Accc!)ted Accounling prjnciplq \\·hc11n1anaging. an e-:1ta1e. !Qlf.rg_~;~inMI (iuardinns ~haH de-tenni11e if a wiH cxis.!.,'!.J!!ld oht.ain a ropv to dct~nninc IH1\;,-J£tl.!Fillag.:- !..'"State {!) Profcs~ional assets and property. mLPro_!S~~~J:illfil G\iardians shall f't"P\_'n lo !he Office of Publi'2. and Prnfts~iona! Ciuardians. the:..l!SJ2iirtll\\~1n of Children and Fan1jlii;s· 1\Juit Pfnk·c1ivc Scrvi1.:cs and local law,~c11forcerne111 in.;;idrnts of abuse. ll\:£.!££h.J•nd-"<>l exploitation within a reasonable period of lime under the circumstances. 1!8i l'ROFESSION".;J,_Q!)l~Jl.J2!A:\OF TllE PROPERTY: INITIAL AN!J t1'';!.QQING Rl:SP01'SIBIUTES f'O. y(Ylf i1 f5 ' / (rcn 1 11 € ~{;a ,,.J -I~ v· o_..ij 11 flt, - Pro {"f' SS tdoal ('-'().a_rdu:it.~ (a) \Vith the proper authority. the initial steps after appointment as Professional Guardian arc as follows: 1. Professional Guardians shalJ address all issues_Qf the estate that reguire immediate action. which include. but are not limited~ securing all real and pers.gnal.1!ffi1),.~Jj:)~_jJ1su!i.ng it at c11!rent 1narket vahie, and taking 1hc steps necessary to protect it from damage destruction. or loss. a. Profes.sional Guardians shall ascertain !he inco1ne. as~ets. and liabilitie:;; of th(." \Varl!DfHion to clearly describe all significant tran'.'iactions aft"o;::ting J,t~QJ!1iHL'ilmJiQ!l d~riug_!h£_~£.£Q!ill!in.ZJ!cri 99..: All _accounti nR'iJTI!b'iLh.~.conm!g~ ace urate, and under~1a11dable. 9. Professional Guardians shall oversee the dispos)tion of\Vards' assets to gualitv \Vards for anv public benefits program. 10. (ln the 1ennination of the guardianship or the death of a \Vard. Proft>ssional Guardians shall facilitate the appropriate closing of the estate and subrnit a final accounting to the rou11. 11. Professional Guardians 1nay n1onilor, provide oversight. or tnanage the p~rs.ona! aHo~~'ance of \Vards. 12. Professional Guardians shall. \l.'hen appn.11)riate. open a burial trust account and/or make funt"ral arrangements for Wards. (19) PROPERTY MANAGEMENT. !al Proltisslonal Guardian.!:i ni:i\" not di!>pose of a \Vard's real t)r personal propcrtv \\•ithout i!ivin11 notice to interested parties and getting Court approval. fbl fn th(." abscnc.t'.' of evidence of a \Vard"s vit'V."S before (he appointnu:-nt of a Professional Guardian. Proi!:ssiona! (Juardians. ha\'inc tht'" proptT <:1uthorhv. may not sd!. t'ncumbtr. con\"C\'. or olhc:T\vi~c tr.an..;fi:r propert\' of a ward. or an interesl in that property. unless doing so is in the best interest of the \\lard. (c ·1 In considering \\'hcthcr to dispose of a \Vard's property. ProfCssiona! Guardians shall consider the folio\vitu?: I. \\lhcthcr dispusing of the propc-rty \\"ill bcn~fit or iinoro\'C the life oftht" \Vard 2. The likelihood that the \Vard will need or benefit from the property in the future. 3. The pre,·ious]\· express.ed Clf' c11rrent desir\:S of the 'lf.t1ard viith regard to tbi;'" prope11v, 4. The provisions of the \\1 arcl's estate plan as it relates to the propertv. if anv. 5. The tax conseauences of the transaction, 6. The in1pact of the transaction on the \\'ard's entitlc1nent to public benefits. 7. The condition of the entire estate. 8. The ability of the Ward to maintain the property 9. The availability and appropriateness of alternatives to the disposition of the property. 10. The likelihood that property may deteriorate or be subject to \\·aste; and. 11. The benefits versus the liability and costs of n1aintaining the property. (dl Professional Ciuardians shall consider the necessity for an independent appraisal of real and personal property. (e) Professional Ciuardians shall provide for insurance coverage. as appropriate. for property in the estate. (20) CONFLICT OF INTEREST: ESTATE, FINANCIAL, AND BUSINESS SERVICES (a) Professional Guardians shall avoid all conflicts of interest and self-dealirig_v:hen addressing the needs of Wards under guardianship. Imoropriety or conflict of interest arises where a Professional Guardian has some personal or agency interest that can be perceived as self-serving or adverse to the position or best interest of a Ward. Self-dealing arises when the Professional Guardian seeks to take advantage of his or her position as a Professional Guardian and acts for his or her own interests rather than for the interests ofa Ward. Cbl Standards relating to specific situations that might create an impropriety or conflict of interest include the following: 1. Professional Guardians shall not comn1inglc personal or program funds '-''ilh the funds of \\lards. except as follows: a. This standard does not prohibit Professional Guardians fro1n consolidating and 1naintaining \Vards· funds in joint accounts with the funds of other Wards. b. If Professional Guardians n1aintain joint accounts. separate and complete accounling of each \Vard's funds shall also be maintained by the Professional Guardian. c. If the court allO\\'S the use of comingled accounts. thev should be pennitted only v.·here Professional (Juardians have a\'ailable resources to keep accurate records of the exact atnount of funds in the account. including allocation of interest and charges attributable to each estate based on the asset level of the Ward. 2. Professional (iuardians rnav not sell. encu1nber. convey. or othcr\vise transfer a \Vard's real or personal propertv or any interest in that propertv to himself or herself. a spouse. a cov.·orkcr. an e1nployee. a 1ne1nber of the board of the agency or corporate Professional Guardian. an agent. or an attorney. or any cornoration or trust in which the Professional Guardian has a substantial beneficial interest. 3. Professional Guardians rnay not sell or other\visc convey a \\lard's propertv fro111_.filJY..Qf.lliu~rties noted in subparagraph (20\(b )2. 4. Professional Guardians n1av not loan_QL.£.ivc _n101H.'Y or objects of \'.'Orth fro1n a \\lard's estate unless specific prior approval is obtained from the court. 5. Professional Guardians mav not use a \Vard's income and assets to support or benefit other individuals directly or indirectly unless specific prior approval is obtained from the court. 6. Professional Guardians may not borrow funds from a Ward. 7. Professional Ciuardians may not lend funds to a \Vard unless there is prior notice of the proposed transaction to interested persons and others as directed by the court or aeencv administering the \\lard's benefits. and the transaction is approved by the court. 8. Professional Guardians mav not profit fron1 any transactions made on beha! f of a \Vard's estate at the expense of the estate. nor 1nay the Professional Guardian compete v.'ilh the estate. unless prior approval is obtained from the court. 9. Professional. Guardians shal I not giYe anything of \'al uc associated \\·ith a guardianship referral. f2l l TERMINATION AND LIMITATION OF PROFESSIONAL GUARDIANSHIP (a) Professional Guardians shall assist \Vards under guardianshio to develop or regain the capacity to n1anage their personal and financial affairs. lb) Professional Guardians shall seek termination or lin1itation of the guardianshin in the fo!lov.·ing circumstances: L.1~1l~.g.)1 \Vard h rnaintainrlate~ I. The date and time spent on a task, 2. The duty performed, 3. The expenses incurred. 4. The collaleral contacts involyed; and 5. The- identification of the individual who p~rformcd the duty (e.g .. guardian. stafi'. volunteer'). 6. AH parties should respect the Privacy an·d dignity Oft}l,£.P.crson \\'hen disclosing informatiun rcgarding.f.ges. (23) MANAGEMENT OF MULTIPLE PROFESSIONAL GIJARDL\NSH!P CASES. Professional Guardians. shall limit his or her caseload to allQ.\\' the Professional Guardian to propcrlyJ;.~rry out his or her duties for each Ward within statutorv guidelines. H11!tww~i11g Art1l10rih 744.100/(!Uhl FS /.q1Ll!!!.Plr!.lli'lllC£l 744.JOOJf]lfht FS. His!on-."'.'ru ___ __,_ 58M~2.01 l Disciplinary Action and Q!Jidelines. ( l) PunJOSl'. Pursuant to scction __]::l:41..~i!l>41 F.S .. the OtTict· of Public f!H~L.!~rofcs.<.ional (juardians provides. disciplinary guidelines in lhi~ rule for aP,,plifi!!Jl~..9L.£Uardians over whorn it has ovcrsiz.hL The purpose of this rule is to notify applicants and guardians of the r!!.!illc of penalties \Vhich "'ill routinely be in1roscd. unless the. Offict' of Public and Professional fiuardi_ans find:-; ii neces:"taD' to deviate fro1n the guiQclines for the stated re.asons gh·cn in this rult". The ran~c of pc11altics arc ba_:o;ed up-on a s.inglt' <..~()Unt violation of each provision listed. h11.11tiplc counts of tht violated provisions or a con1bination gf the violations may result in a higher penahv. Each range includes the lowest and hl!:!hes:t penalties that n1ay be in1pnsed for th.:~t violation. For appiicants.......filt ott"ens.cs listed in the I>isciplina1)' Ciuidtlin(':s ar~. suflicic:nt for refusal to cenify an aoplicaliun for registration. The Office of Public and Profcssi9naJ_Guardia11s n1av find It nect'ss:arv to deviate fro1n the guidelii1cs for the reasons sq_iJsd in subsection C-"> of this rule. t2l Violations and Range of Penalties. In i1nposing discipline upon avplicant..; and guiudians. 1he Office of Public and Professional Guardians shall act in ai;.c.ordance with guidelines and s~JI i1nposc a penally \rithin a fall£.£ corresponding to the violations se\ fon.h in fonn OOEAiOPPG Fom1 00,1 ()ffice of Pub!il' and Prof~ssional Guardians DiSt·iplinarv Guidclinc~~.i~X.X 20J 6). incorooratcd herein hy refertnct and available -~-~H ~Hps://\\'\\'\\'.flrules,orl!iXXXXXXX unless th,~.Qffice of Pl1blic and ProfcssionaJ~-G~uardians find;;- il nt"ct:-~sarv to dc\·irtte fro1n the guidelines for the stated reasons gi\·en in subsection (31 of this rule. (3) The Offic£°"Of Public and Professional Guardians sl1all take ilih'.l consideration the danf?cr.Jo [h._: public: Cht· nun1bcr of rcpctitign.s. of offenses: the length of tiine since wrote: See Jerome's personal concerns below; ******************************************************************************************************************* *********** Dear Sir or Madam, You are receiving this notification because you have expressed an interest in rulemaking conducted by the Department of Elder Affairs ("Department") concerning professional guardians. The purpose of this notification is to inform you of the Department's intention to hold a rule hearing on November 9, 2016 from 9:30 a.m. to 12:30 p.m. The rule workshop will take place at the Department's offices located at 4040 Esplanade Way, Tallahassee, Florida 32399-7000. To participate in the rule workshop by telephone, please call 1-888-670-3525 participation code 5964230985. Please see the attached Notice of Proposed Rule filed by the Department with the Department of State on October 17, 2016. Please submit any written comments on the proposed rule prior to the rule hearing on November 9, 2016 to Nelsonj@elderaffairs.org. 1 The Department will continue to notify you as this rulemaking progresses. If you have any questions or concerns regarding this matter, please do not hesitate to contact me. Regards, Amelia Milton Deputy Director Office of Public and Professional Guardians, Department of Elder Affairs 4040 Esplanade Way, Suite 2801 Tallahassee, FL 32399-0950 (850) 414-2378 (Office) E-mail: miltona@elderaffairs.org Website: hlln://elderaffairs,state.11.us/doea/spgoJllin CONFIDENTIALITY NOTICE: This message and any attachments are for the sole use of the intended recipient(s) and may contain confidential and privileged information that is exempt from public disclosure. Any unauthorized review, use, disclosure, or distribution is prohibited. lfyou have received this message in error please contact the sender (by phone or reply electronic mail) and then destroy all copies of the original message. From the Desk of Jerome Silverberg, Guardian; 1) Great care was taken to replace Statewide Public Guardianship Office (SPGO) with Office of Public and Professional Guardians (OPPG) accept in in SSM-2.001 (7). "A registration fee of thirty-five dollars ($35) for each professional guardian in the form of a personal check, money order, or cashier's check made payable t the Statewide Public Guardianship Office must be submitted with the registration form. 2) The absence of definition of Guardian, or Professional Guardian. SSM-2.009 (1). DEFINITIONS • • The Guardianship process provides for Guardian Advocates (FS393, 394) and Plenary and limited Guardians (FS 744). At times these guardians are Public, Professional, Family, and others. These standards and the OPPG should make it clear their authority and these rules only apply to Public and Professional guardian registered with the OPPG . • 3) THE GUARDIAN'S PROFESSIONAL RELATIONSHIP WITH THE WARD o o A clear definition of PERSONAL RELATIONS is needed. Can the guardian not have a friendly/ casual repro with the Ward? 4) THE PROFESSIONAL GUARDIN'S RELATIONSHIP WITH FAMILY MEMBERS AND FRIENDS OF THE WARD o A clear definition of PERSONAL RELATIONS is needed. 2 o Can the guardian not have a friendly/ casual repro with family members and friends of the Ward? o c) consider changing the word MUST. Must conflict with the idea of Informed Consent, Direction of the Court, Self-Determination of the Ward, and DECISION-MAKING CONCERNING WITHOLDING AND WITHDRAL OF MEDICAL TREATMENT (b) lfa Ward expressed or currently expresses a preference regarding the withholding or withdrawal of medical treatment, a Professional Guardian shall follow the wishes of the Ward. If the Ward's current wishes are in conflict with wishes previously expressed when the Ward had capacity, Professional Guardian shall have this ethical dilemma submitted to the court for direction.". (11) CONFIDENTIALITY. (a) Professional Guardian shall keep the affairs of Ward under guardianship confidential. 5) THE PROFESSIONAL GUARDIAN'S RELATIONSHIP WITH OTHER PROFESSIONALS AND PROVIDERS OF SERVICES TO THE WARD o A clear definition of "treat all professionals and service providers with courtesy and respect" is need. Should this remain a general statement, The OPPG is opening the door to unfounded retribution on the guardian for acting in the best interest of the Ward. 12) DUTIES OF THE PROFESSIONAL GUARDIAN OF THE PERSON. o d) "When Professional Guardian consider involuntary or long-term placement of a Ward in an institutional setting, " I believe it is the duty of the Court base on testimony in a hearing that to consider Long Term-Placement. Finish 3 Notice of Proposed Rule DEPARTMENT OF ELDER AFFAIRS Statewide Public Guardianship Office RULE NOS.:RULE TITLES: 58M-2.001 Professional Guardian Registration 58M-2.009 Standards of Practice 58M-2.011 Disciplinary Action and Guidelines PURPOSE AND EFFECT: The purpose of the proposed rulemaking is to implement statutory changes to Parts I and II of Ch. 744, F.S., and to the Department's oversight of public and professional guardians. SUMMARY: The rulemaking establishes standards of practice, disciplinary guidelines, and credit investigation procedures for public and professional guardians as well as i1nplements revisions of rules as needed based on legislative changes. SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has been prepared by the Agency. The main economic impact of the proposed rule is likely generated through the rule's requirement that professional guardians receive court approval of their guardianship fees and through the rule's record keeping requirements. A full copy of the Statement of Estimated Regulatory Costs can be obtained online at http://elderaffairs.state.fl.us/doea/oppg_rulemaking.php The Agency has determined that the proposed rule is expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: Through the preparation of a SERC, the Department has determined that proposed rule 58M2.009, Florida Administrative Code, concen1ing standards of practice for professional guardians, will have a significant regulatory impact on small businesses and is likely to increase regulatory costs in excess of $1,000,000 within the first five years of implementation. Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice. RULEMAKING AUTHORITY: 744.2001(2)(b), 744.2002(6), 744.3135(5)(b), 744.20041 FS. LAW IMPLEMENTED: 744.102(17), 744.2001(2)(b), 744.2002, 744.2003, 744.20041 FS. IF REQUESTED WITHIN 21 DAYS OF THE DATE OF TIIIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW: DATE AND TIME: November 9, 2016, 9:30 a.m. -12:30 p.m. PLACE: Florida Department of Elder Affairs, 4040 Esplanade Way, Room 301, Tallahassee, Florida 32399 To participate in the rule workshop by telephone please call: 1(888)670-3525 participation code: 5964230985 Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Jason Nelson at Department of Elder Affairs, Office of Public and Professional Guardians, 4040 Esplanade Way, Tallahassee, FL 32399; email: nelsonj@elderaffairs.org; telephone: (850)414-2113. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice). THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Jason Nelson at Department of Elder Affairs, Office of Public and Professional Guardians, 4040 Esplanade Way, Tallahassee, FL 32399; email: nelsonj@elderaffairs.org; telephone: (850)414-2113 THE FULL TEXT OF THE PROPOSED RULE IS: 58M-2.001 Professional Guardian Registration and Credit Investigation. Applicants must score a minimum of75% on the Professional Guardian Competency Examination or must receive a waiver from the Department of Elder Affairs' Office of Public and Professional Guardians (OPPG)Statewide Public Guardianship Office (SPGO) before the application for registration will be considered. (1) Definitions. As used in this rule. the tenn: (a) "Adverse credit history information" means the following: 1. Personal bankruptcy within the previous year. 2. Bankruptcy within the previous year of any organization based on events that occurred while the relevant person was a control person. 3. Outstanding tax lien or other governmental lien. 4. Outstanding judgment based upon grounds of fraud. embezzlement. misrepresentation. or deceit. 5. Open collection account or charged-off account that remains unpaid. except accounts related solely to unpaid medical expenses. 6. Foreclosure on personally owned property within the last 5 years. (b) "Charged-off' means an account that has been identified by the creditor as an uncollectable debt. Q}fB Persons who are required to register with the OPPG DepaFtment af Ehler Affairs' Statewide Publis Guardianship Oflie• (SPGO) as a professional guardian must complete the Professional Guardian Registration Form, DOEAIOPPG SPGO Form 001, XXXX 2016 Maroh 2008, which is incorporated herein by reference and may be obtained from the Office of Public and Professional Guardians Stat•wido Publis GuardiaRsaip Oflise, Department of Elder Affairs, 4040 Esplanade Way, Tallahassee, Florida 32399-7000, or at http://elderaffairs.statdl.us/english/public.html. The Professional Guardian Employee Registration Form, DOEAIOPPG SPGG Form 002, XXX 2016 Marsh 2098 which is incorporated herein by reference and may be obtained from the OPPG SPGO or at http://elderaffairs.state.fl.us/english/public.html must also be completed and submitted for all Professional Guardian Employees . .Q}fij The registration form shall be signed by the registrant or corporate officer if the registrant is a corporation. {:!}f31 The completed registration form shall be filed with the OPPG Statov.o Sent: Wednesday, November 2, 2016 4:57 PM To: Amelia Milton Subject: Comments on Proposed Rule HLB 20161102 Amelia, Attached is based on my review and represents and represents my views alone. Lennie 1 Comments on Proposed Rule Registration and Credit Investigation - No comment Standards of Practice (1) Definitions - "Family" is too broad, burdensome and not in the best interest of the Ward, particularly in the Standards where the guardian must communicate with the Family. The definition includes spouse, children, grandchildren, greatgrandchildren, spouses (and former spouses) of children, and grandchildren; step-children, brothers and sisters, parents and grandparents (and their spouses), nieces, nephews and cousins. Wherever family is used in the standard, if the standard imposes a duty on the guardian or establishes a right, the term interested person should be used instead to allow the court to make a determination in the best interests of the Ward. (2) Regarding paragraph (c) The requirement for prior approval of guardian fees is burdensome. Given the expense of invoice, petition and order, Guardians should infrequently seek the Court's approval. No one else involved with the guardianship is expected to work for months without compensation. Caregivers, service providers including attorneys, the Clerk, and the Judge are paid promptly. An additional factor is that the guardian has undergone a credit check and has proof of a Bond. As a result, in any dispute, the guardian's personal assets are available or the Bond may be required to pay. Alternately, the term "prior approval" could be defined to include a Court approval of an amount "not to exceed" for payment of guardian fees as the amounts due are accrued. (3) No comment (4) No comment (5) No comment (6) Regarding (c) 10. Requires the guardian to obtain information or input from a Ward's family prior to making an Informed Consent decision. This is too broad. This may require the disclosure of protected health information to family members. Given the definition of Family included in (1) above the requirement to obtain input may be extensive, expensive and not timely. Substitution of the term "interested persons" for "family" in this paragraph would provide for the Court's discretion in this potentially problematic area. (7) No comment (8) No comment (9) No comment (10) No comment (11) No comment (12) No comment (13) Regarding (d) 3. Requires the guardian to participate in fil! care or planning conferences (emphasis added.) It may be burdensome or expensive for the guardian to personally attend all such conferences. This may depend on other sources of information the guardian has and the stability of the Ward's needs. The requirement of attendance at all conferences is inconsistent with the provision that the Guardian visit the Ward at least quarterly. Suggest these words instead " ... shall participate in care or planning conferences as needed concerning ... " (14) Regarding (f) Requires the guardian inform "the court and other interested parties''. Other interested parties is undefined and may be controversial. Suggest use of the term "interested person" already defined. Regarding (g) The phrase "should know of them" is an invitation to dispute about what the guardian should know. Elsewhere in the Rule, the efforts the guardian is expected to make to determine the ward's prior general statements, actions, values and preferences are enumerated. If those are accomplished, the guardian will know. If they are not, that is where the focus should be. Recommend deleting the words ""or should know of them''. Regarding (I) Suggest a clarification. Revise to "The guardian shall communicate with the treating medical provider before authorizing any treatment or procedure or denying any treatment or procedure that has been previously approved." (15) No comment (16) No comment (17) Regarding (n) This paragraph requires the guardian to employ Generally Accepted Accounting Principles (GAAP). Familiarity with GAAP is generally only available with specific training as an accountant. This provision will require the guardian to employ the services of an accountant except in the most simple of estates. Even if the rigorous discipline of full accrual accounting is accomplished, the result may be undesirable as it is far from most individual's expectation. For example, GAAP requires carrying assets value at their purchase price. Should the ward's house and car really be accounted at the original purchase price? Similarly, accrual accounting requires recording earnings when they occur rather than when they are received. This will require additional accounting rigor. (18) No comment (19) No comment (20) General question. Is there a provision in this Rule that prohibits a guardian from receiving compensation from a service provider for his or her work as a guardian? (21) No comment (22) No comment (23) No comment Disciplinary Action and Guidelines - No comment Comments on Proposed Rule Registration and Credit Investigation - No comment Standards of Practice (1) Definitions - "Family" is too broad, burdensome and not in the best interest of the Ward, particularly in the Standards where the guardian must communicate with the Family. The definition includes spouse, children, grandchildren, greatgrandchildren, spouses (and former spouses) of children, and grandchildren; step-children, brothers and sisters, parents and grandparents (and their spouses), nieces, nephews and cousins. Wherever family is used in the standard, if the standard imposes a duty on the guardian or establishes a right, the term interested person should be used instead to allow the court to make a determination in the best interests of the Ward. (2) Regarding paragraph (c) The requirement for prior approval of guardian fees is burdensome. Given the expense of invoice, petition and order, Guardians should infrequently seek the Court's approval. No one else involved with the guardianship is expected to work for months without compensation. Caregivers, service providers including attorneys, the Clerk, and the Judge are paid promptly. An additional factor is that the guardian has undergone a credit check and has proof of a Bond. As a result, in any dispute, the guardian's personal assets are available or the Bond may be required to pay. Alternately, the term "prior approval" could be defined to include a Court approval of an (3) (4) (5) (6) amount "not to exceed" for payment of guardian fees as the amounts due are accrued. No comment No comment No comment Regarding (c) 10. Requires the guardian to obtain information or input from a Ward's family prior to making an Informed Consent decision. This is too broad. This may require the disclosure of protected health information to family members. Given the definition of Family included in (1) above the requirement to obtain input may be extensive, expensive and not timely. Substitution of the term "interested persons" for "family" in this paragraph would provide for the Court's discretion in this potentially problematic area. (7) No comment (8) No comment (9) No comment (10) No comment (11) No comment (12) No comment (13) Regarding (d) 3. Requires the guardian to participate in fill care or planning conferences (emphasis added.) It may be burdensome or expensive for the guardian to personally attend all such conferences. This may depend on other sources of information the guardian has and the stability of the Ward's needs. The requirement of attendance at all conferences is inconsistent with the provision that the Guardian visit the Ward at least quarterly. Suggest these words instead " ... shall participate in care or planning conferences as needed concerning ... " (14) Regarding (f) Requires the guardian inform "the court and other interested parties". Other interested parties is undefined and may be controversial. Suggest use of the term "interested person" already defined. Regarding (g) The phrase "should know of them" is an invitation to dispute about what the guardian should know. Elsewhere in the Rule, the efforts the guardian is expected to make to determine the Ward's prior general statements, actions, values and preferences are enumerated. If those are accomplished, the guardian will know. If they are not, that is where the focus should be. Recommend deleting the words ""or should know of them". Regarding (I) Suggest a clarification. Revise to "The guardian shall communicate with the treating medical provider before authorizing any treatment or procedure or denying any treatment or procedure that has been previously approved." (15) No comment (16) No comment (17) Regarding (n) This paragraph requires the guardian to employ Generally Accepted Accounting Principles (GAAP). Familiarity with GAAP is generally only available with specific training as an accountant. This provision will require the guardian to employ the services of an accountant except in the most simple of estates. Even if the rigorous discipline of full accrual accounting is accomplished, the result may be undesirable as it is far from most individual's expectation. For example, GAAP requires carrying assets value at their purchase price. Should the ward's house and car really be accounted at the original purchase price? Similarly, accrual accounting requires recording earnings when they occur rather than when they are received. This will require additional accounting rigor. (18) No comment (19) No comment (20) General question. Is there a provision in this Rule that prohibits a guardian from receiving compensation from a service provider for his or her work as a guardian? (21) No comment (22) No comment (23) No comment Disciplinarv Action and Guidelines - No comment Jason Nelson From: Sent: To: Subject: Herman Hale Thursday, November 3, 2016 12:16 PM Jason Nelson Comments I very much support setting standards for guardians in Florida, but, does the OPPG have to document that "guardians should not have sex with their wards" ... really? I also question how this reworded rule (which appears to have the same meaning as the old one) is really going to improve guardianship standards statewide. Herman Herman Hale, RN Professional Guardian I 0849 SW 90th Court Ocala, FL 34481 352-620-2808 g_uardianhennan@gmail.com If you are not the intended recipient, please notify the sender immediately by return e-mail, please delete this email, and destroy any copies. Any dissemination or use of this infonnation by a person other than the intended recipient is unauthmized and may be illegal. 1