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.

 

DEPARTMENT OF ELDER AFFAIRS

Statewide Public Guardianship Office

RULE NOS.:RULE TITLES:

58M-2.001Professional Guardian Registration

58M-2.009Standards of Practice

58M-2.011Disciplinary 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 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 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 58M-2.009, Florida Administrative Code, concerning 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 THIS 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: [e-mail]; telephone: [phone]. 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: [e-mail]; telephone: [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

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)Statewide Public Guardianship Office (SPGO) before the application for registration will be considered.

(1) Definitions. As used in this rule, the term:

(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.

(2)(1) Persons who are required to register with the OPPG Department of Elder Affairs’ Statewide Public Guardianship Office (SPGO) as a professional guardian must complete the Professional Guardian Registration Form, DOEA/OPPG SPGO Form 001, XXXX 2016 March 2008, which is incorporated herein by reference and may be obtained from the Office of Public and Professional Guardians Statewide Public Guardianship Office, Department of Elder Affairs, 4040 Esplanade Way, Tallahassee, Florida 32399-7000, or at http://elderaffairs.state.fl.us/english/public.html. The Professional Guardian Employee Registration Form, DOEA/OPPG SPGO Form 002, XXX 2016 March 2008 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.

(3)(2) The registration form shall be signed by the registrant or corporate officer if the registrant is a corporation.

(4)(3) The completed registration form shall be filed with the OPPG Statewide Public Guardianship Office, by hand-delivery or mail. Facsimile submissions will not be accepted.

(5)(4) The following items must either accompany the registration form or must be on file with the OPPG SPGO, for the registration to be deemed complete:

(a) A complete credit report, including all pages, from a nationally recognized credit agency. A nationally recognized credit agency shall mean a credit agency that obtains credit information both within and outside the State of Florida; validates, updates, 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.;

(6)(5) For the initial 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 minimum continuing education requirements must be submitted, if not on file.

(7)(6) 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 Statewide Public Guardianship Office must be submitted with the registration form.

(8) Adverse Credit History Information. If an applicant’s credit report or responses to the registration application contains adverse credit history information, the OPPG will notify the applicant in writing of the specific items constituting adverse credit history information. The notification will also inform the applicant of the:

(a) Opportunity to explain the circumstances surrounding the specific items and provide any other relevant information that the applicant wishes the OPPG to consider surrounding the specific items;

(b) Documents that the OPPG requires in order to complete its review of the specific items. The requested documents provided by the applicant must be legible.

If the documents requested above cannot be obtained, the applicant shall submit evidence of that fact in order for the registration application to be deemed complete. Evidence that documents cannot be obtained shall consist of a written statement from the agency’s or creditor’s records custodian that is written on the agency’s or creditor’s letterhead; indicates that the agency or the creditor does not have any record of such matter or that the record was lost, damaged, or destroyed, or cannot otherwise be produced and provide a statement as to why the record cannot be produced; and is signed by the agency’s or creditor’s records custodian.

(9) Procedure for Reviewing Adverse Credit History Information.

(a) When deciding whether to approve an application for registration as a professoinal guardian, the OPPG must make a determination regarding whether the applicant has demonstrated that he or she possesses the character, general fitness, and financial responsibility to warrant the OPPG’s determination that the applicant will not violate any of the provisions of Chapter 744, Florida Statutes. In making this determination, the OPPG will consider the following information:

1. The Applicant’s entire credit history as reflected in the credit report.

2. The information provided by the applicant under subsection (8).

3. The responses contained in the registration application.

4. The previous licensing history with the OPPG including whether the relevant person was named in any regulatory action by the OPPG.

5. Other information that reflects upon an applicant’s character, general fitness, or financial responsibility.

6. The time and context of the information available and any pattern of behavior the information may demonstrate.

(b) Based on the totality of the circumstances as developed under paragraph (a), the OPPG will make a determination as to whether the applicant has demonstrated that he or she possesses the character, general fitness, and financial responsibility to warrant the OPPG’s determination that the applicant will not violate any of the provisions of Chapter 744, F.S.

(10)(7)(a) The registration period begins the day the registration is approved by the OPPG SPGO and ends on the registrant’s bond anniversary date. For multi year bonds, the annual registration expiration date will be determined by the day and month that the bond expires.

(b) The OPPG SPGO will prorate the registration fee up to 50% for initial registrants whose bond will expire in less than 6 months.

(11)(8) Annual Renewals: A completed DOEA/OPPG SPGO Form 001 for annual renewal of a registration shall be submitted to OPPG SPGO at least 30 days prior to the expiration date of the current registration to ensure that a lapse in registration does not occur. Registrants may request expedited processing for an additional fee. A schedule of those expedited fees is provided on DOEA/SPGO Form 001. All fees must be received with the completed registration form prior to the registration being processed by the OPPG SPGO.

(12)(9) If a professional guardian hires an employee with assigned fiduciary responsibilities during the registration period, the professional guardian shall submit an amended DOEA/OPPG SPGO Form 001 that includes the new employee information to the OPPG SPGO for approval prior to the employee assuming any fiduciary responsibilities.

Rulemaking Authority 744.2002(6) 744.1083(6), 744.3135(5)(b) FS. Law Implemented 744.102(17), 744.2002 744.1083, 744.2003 744.1085, 744.3135 FS. History–New 5-4-03, Amended 12-12-05, 3-17-08,                            .

 

58M-2.009 Standards of Practice.

(1) DEFINITIONS

(a) In addition to the terms defined in Chapter 744, F.S., the following definitions are applicable in this rule:

1. “Interested Person” means a person identified as an interested person in a guardianship proceeding. The meaning as it relates to particlular wards, may vary from time to time and must be determined the Court according 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 stepparent of a minor if the stepparent is currently married to the parent of the minor and is not a party in a pending dissolution, separate maintenance, domestic violence, or other civil or criminal proceeding in any court of competent jurisdiction involving one or both of the minor’s parents as an adverse party.

3. “Friend” means a person whom an individual knows and with whom the individual has a bond of mutual affection.

4. “Abuse” means any willful act or threatened act by a relative, caregiver, or household member which causes or is likely to cause significant impairment to a Ward’s physical, mental, or emotional health. Abuse includes acts and omissions.

5. “Neglect” means the failure or omission on the part of a caregiver or guardian to provide the care, supervision, and services necessary to maintain the physical and mental health of a Ward, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, which a prudent person would consider essential for the well-being of the Ward. The term “neglect” also means the failure of a caregiver or guardian to make a reasonable effort to protect a Ward from abuse, neglect, or exploitation by others.

6. “Exploitation” means:

a. Knowingly obtaining or using, or endeavoring to obtain or use, a Ward’s funds, assets, or property with the intent to temporarily or permanently deprive the Ward of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the Ward, or

b. Breach of a fiduciary duty to a Ward by the Ward’s guardian which results in an unauthorized appropriation, sale, or transfer of property, or

c. Intentionally or negligently failing to effectively use a Ward’s income and assets for the necessities required for that Ward’s support and maintenance, by the Ward’s guardian.

7. “Significant Occurrence” means an eventuality, event, incident, affair, episode, milestone, transaction, proceeding, business, concern, circumstance, particular; fact, matter of fact, phenomenon; happenstance, goings-on; adventure, happening; accident, or, casualty that affects a Ward.

(2) THE PROFESSIONAL GUARDIAN’S RELATIONSHIP TO THE COURT.

(a) Professional Guardians shall know the extent of the powers and the limitations of authority granted to them by the court and all their decisions and actions shall be consistent with court orders. Any action taken by a Professional Guardian pursant to a court order shall not be deemed to be violation of this rule.

(b) Professional Guardians shall obtain court authorization for actions that are subject to court approval.

(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.

(d) Professional Guardians shall seek assistance as needed to fulfill responsibilities to the Wards under their guardianship.

(e) All payments to Professional Guardians from the assets of a Ward shall be submitted to the court for prior approval and shall follow the requirements of Section 744.108, F.S.

(f)  Professional Guardians shall submit reports regarding the status of their Wards to the court as ordered by the court and required by Chapter 744, F.S.

(g)  Professional Guardians shall notify the court of any change in the capacity of a Ward that warrants a restriction of the Professional Guardian’s authority within a reasonable period of time under the circumstances.

(3) THE PROFESSIONAL GUARDIAN’S PROFESSIONAL RELATIONSHIP WITH THE WARD.

(a) Professional Guardians shall avoid personal relationships with Wards under their guardianship, their Ward's family, or their Ward's friends, unless the Professional Guardian is a family member, or unless such a relationship existed before the appointment of the Professional Guardian.

(b) Professional Guardians may not engage in sexual relations with a Ward under their guardianship, unless the Professional Guardian is the Ward's spouse or the sexual relationship existed before the appointment of the Professional Guardian.

(4) THE PROFESSIONAL GUARDIAN’S RELATIONSHIP WITH FAMILY MEMBERS AND FRIENDS OF THE WARD. Professional Guardians shall promote social interactions and meaningful relationships consistent with the preferences of the Wards under their guardianship.

(a) Professional Guardians shall make reasonable efforts to encourage and support their Wards maintaining contact with family and friends, as defined by those Wards, unless such contact will subject the Wards to abuse as defined in Section 415.102, F.S.

(b) Professional Guardians may not interfere with their Ward’s established relationships, unless necessary to protect them from abuse as defined in Section 415.102, F.S.

(c) Professional Guardians must maintain communication with their Wards’ families and friends regarding significant occurrences that affect the Wards when that communication would benefit Wards.

(d) When disposing of a Ward's assets, a Professional Guardian must notify interested persons and give them the opportunity, with court approval, to obtain the Ward’s assets (particularly those with sentimental value).

(e) Professional Guardians shall keep interested persons advised of any pertinent medical issues or decisions when ordred to do so by the Court.

(5) THE PROFESSIONAL GUARDIAN’S RELATIONSHIP WITH OTHER PROFESSIONALS AND PROVIDERS OF SERVICES TO THE WARD. Professional Guardians shall treat all professionals and service providers with courtesy and respect and shall strive to enhance cooperation between all parties on behalf of their Wards.

(a) Professional Guardians who are not family members of their Wards may not provide any services other than guardianship services to those Wards except in an emergency. Professional Guardians shall coordinate and monitor services needed by Wards to ensure that Wards are receiving the appropriate care and treatment.

(b) Professional Guardians shall make a good faith effort to cooperate with other surrogate decision-makers for Wards. These include, where applicable, any other guardians, agents under a power of attorney, health care proxies, trustees, U.S. Department of Veterans’ Affairs fiduciaries, and representative payees.

(6) INFORMED CONSENT.

(a) Decisions that Professional Guardians make on behalf of their Wards under guardianship shall be based on the principle of Informed Consent.

(b) Informed Consent is a decision maker’s agreement to a particular course of action based on a full disclosure of the facts needed to make the decision intelligently.

(c) To have Informed Consent, a decision maker must have adequate information on the issue, must be able to take voluntary action, and must not be coerced.

(d) Professional Guardians stand in the place of Wards and are entitled to the same information and freedom of choice as a Ward would have received if the Ward were not under guardianship.

(e) In evaluating each requested decision, Professional Guardians shall do the following:

1. Have a clear understanding of the issue for which informed consent is being sought,

2. Have a clear understanding of the options, expected outcomes, risks and benefits of each alternative,

3. Determine the conditions that necessitate treatment or action,

4. Maximize the participation of Wards in understanding the facts and directing a decision, to the extent possible,

5. Determine whether a Ward has previously stated preferences in regard to a decision of this nature,

6. Determine why this decision needs to be made now rather than later,

7. Determine 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 necessary,

10. Obtain information or input from a Ward’s family and from other professionals; and,

11. Obtain written documentation of all reports relevant to each decision.

(7) STANDARDS FOR DECISION-MAKING.

(a) Professional Guardians shall assist and encourage Wards to act on their own behalf and to participate in decisions.

(b) Professional Guardians shall, consistent with court orders and state statutes, exercise authority only as necessitated by the limitations of the Ward.

(c) Each decision made by a Professional Guardian shall be an informed decision based on the principle of Informed Consent as set forth in subsection (6).

(d) Professional Guardians shall identify and advocate for the goals, needs, and preferences of their Wards.

1. Professional Guardians shall ask their Wards what they want.

2. If a Ward has difficulty expressing what he or she wants, his or her Professional Guardian shall, to the extent possible, help the Ward express his or her goals, needs, and preferences.

3. When a Ward, even with assistance, cannot express his or her goals and preferences, Professional Guardians shall seek input from others familiar with the Ward to determine what the Ward may have wanted.

4. To the extent that a Ward’s goals and preferences have been made known to a Professional Guardian, the Professional Guardian shall honor those goals or preferences, except when following the Ward’s goals and preferences would cause significant impairment to a Ward’s physical, mental, or emotional health.

(e) Substituted Judgment.

1. Substituted Judgment is a principle of decision-making which requires the guardian to consider the decision their Ward would have made when the Ward had capacity and use that as the guiding force in any surrogate decision a guardian makes.

2. Substituted Judgment shall be used when making decisions on behalf of a ward except when following the Ward’s wishes would cause significant impairment to a Ward’s physical, mental, or emotional health , or when a Professional Guardian cannot establish a Ward’s goals and preferences even with support.

(f) Best Interest.

1. Best Interest is the principle of decision-making that should be used only when a Ward has never had capacity, when a Ward’s goals and preferences cannot be ascertained even with support, or when following a Ward’s wishes would cause significant impairment to a Ward’s physical, mental, or emotional health or his or her property.

2. The Best Interest principle requires a guardian to consider the least restrictive course of action to provide for the needs of a Ward.

3. The Best Interest principle requires guardians to consider a Ward’s past practice and evaluate evidence of his or her choices.

4. The Best Interest principle requires the course of action that maximizes what is best for a Ward and that includes consideration of the least intrusive, most normalizing, and least restrictive course of action possible given the needs of the Ward.

(8) LEAST RESTRICTIVE ALTERNATIVE.

(a) When making a decision, Professional Guardians shall carefully evaluate the alternatives that are available and choose the one that best meets the personal and financial goals, needs, and preferences of Wards under their guardianship, while placing the least restrictions on their Wards’ freedoms, rights, and ability to control their environments.

(b) Professional Guardians shall weigh the risks and benefits of each decision and develop a balance between maximizing the independence and self-determination of Wards and maintaining Wards’ dignity, protection, and safety.

(c) Professional Guardians shall make individualized decisions. The least restrictive alternative for one Ward might not be the least restrictive alternative for another Ward.

(d) The following guidelines apply in the determination of the least restrictive alternative:

1. Professional Guardians shall become familiar with the available options for residence, care, medical treatment, vocational training, and education for their wards.

2. Professional Guardians shall strive to know their Wards' goals and preferences.

3. Professional Guardians shall consider assessments of their Wards’ needs as determined by specialists. This may include an independent assessment of a Ward's functional ability, health status, and care needs.

(9) SELF-DETERMINATION OF THE WARD.

(a) Professional Guardians shall provide Wards under their guardianship with every opportunity to exercise those individual rights that the Ward might be capable of exercising as they relate to the personal and financial needs of the Ward.

(b) Professional Guardians shall maximize the self-reliance and independence of their Wards.

(c) Professional Guardians shall encourage their Wards to participate, to the maximum extent of their Wards’ abilities, in all decisions that affect him or her, to act on his or her own behalf in all matters in which the Ward is able to do so, and to develop or regain his or her own capacity to the maximum extent possible.

(d) The Professional Guardian shall, whenever possible, seek to ensure that the Ward leads the planning process. If the Ward is unable to lead the process, the Professional Guardian shall, whenever possible, seek their participation.

(10) THE PROFESSIONAL GUARDIAN’S DUTIES REGARDING DIVERSITY AND PERSONAL PREFERENCES OF THE WARD.

(a) Professional Guardians shall determine the extent to which Wards under guardianship identify with particular ethnic, religious, and cultural values. To determine these values, Professional Guardians shall consider the following:

1. The Ward’s attitudes regarding illness, pain, and suffering,

2. The Ward’s attitudes regarding death and dying,

3. The Ward’s views regarding quality of life issues,

4. The Ward’s views regarding societal roles and relationships, and,

5. The Ward’s attitudes regarding funeral and burial customs.

(b) Professional Guardians shall respect Wards’ right to interpersonal relationships and sexual expression. Professional Guardians shall take steps to ensure that a Ward's sexual expression is consensual, that Wards are not victimized, and that an environment conducive to this expression in privacy is provided.

1. Professional Guardians shall ensure that Wards have information necessary to permit sexual expression to the extent a Ward desires and to the extent a Ward possesses the capacity to consent to the specific activity.

2. Professional Guardians shall take reasonable measures to protect the health and well-being of Wards.

(11) CONFIDENTIALITY.

(a) Professional Guardians shall keep the affairs of Wards under guardianship confidential.

(b) Professional Guardians shall respect Wards’ privacy and dignity, especially when the disclosure of information is necessary.

(c) Disclosure of information shall be limited to what is necessary and relevant to the issue being addressed.

(d) Professional Guardians shall assist Wards  in communicating with third parties unless the disclosure will substantially harm the Ward.

(e) Professional Guardians shall refuse to disclose information about a Ward where disclosure would be detrimental to the well-being of the Ward or would subject the Ward's estate to undue risk.

(12) DUTIES OF THE PROFESSIONAL GUARDIAN OF THE PERSON.

(a) Professional Guardians who are appointed to be guardians of the person shall have the following duties and obligations to Wards under guardianship; unless decision making authority has not been delegated to the Professional Guardian or the letters of guardianship provides otherwise:

1. To see that Wards are living in the most appropriate environment that addresses each Ward's goals, needs, and preferences subject to limitations of his or her financial resources and availability of government benefits.

a. Professional Guardians must prioritize home or other community-based settings, when not inconsistent with a Ward’s goals and preferences.

b. Professional Guardians shall authorize moving Wards to a more restrictive environment only after evaluating other medical and health care options and making an independent determination that the move is the least restrictive alternative at the time, fulfills the current needs of a Ward, and serves the overall best interest of a Ward.

c. Professional Guardians shall consider the proximity of the setting to those people and activities that are important to Wards when choosing a residential setting.

d. When Professional Guardians consider involuntary or long-term placement of a Ward in an institutional setting, the bases of the decision shall be to minimize the risk of significant impairment to a Ward’s physical, mental, or emotional health , to obtain the most appropriate placement possible, and to secure the best treatment for the Ward.

2. To ensure that provision is made for the support, care, comfort, health, and maintenance of Wards,

3. To make reasonable efforts to secure for Wards medical, psychological, therapeutic, and social services, training, education, and social and vocational opportunities that are appropriate and that will maximize Wards’ potential for self-reliance and independence,

4. To keep the personal information of Wards confidential, except when it is necessary to disclose such personal information for the best interests of a Ward,

5. To adhere to the requirements of subsection (17) Duties of the Professional Guardian of the Property and subsection (18) Professional Guardian of the Property: Initial and Ongoing Responsibilities, to the extent that the Professional Guardian of a Ward has been authorized by the court to manage a Ward’s property,

6. To petition the court for limitation or termination of the guardianship when a Ward no longer meets the standard pursuant to which the guardianship was imposed, or when there is an effective alternative available, and

7. To report 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 defined by state statutes within a reasonable period of time under the circumstances.

(13) INITIAL AND ONGOING RESPONSIBILITIES

(a) With the proper authority, Professional Guardians shall take the following initial steps after appointment as a guardian:

1. Professional Guardians shall address all issues of Wards under guardianship that require immediate action.

2. Professional Guardians shall meet with Wards as soon after the appointment as is feasible. At the first meeting, Professional Guardians shall:

a. Communicate to the Ward the role of the Professional Guardian,

b. Explain the rights retained by the Ward,

c. Assess the Ward's physical and social situation,

d. Assess the Ward's educational, vocational, and recreational needs,

e. Obtain the Ward's preferences,

f. Assess the support systems available to the Ward; and,

g. Attempt to gather any missing necessary information regarding the Ward.

3. After the first meeting with the Ward, the Professional Guardian shall notify relevant agencies and individuals of the appointment of a Professional Guardian, and shall complete the intake process by gathering information and ensuring that certain evaluations are completed, if appropriate. The Professional Guardian shall:

a. Obtain an evaluation of the Ward’s condition, treatment, and functional status from the Ward’s treating physician or appropriate specialist, if a comprehensive medical evaluation was not completed as part of the petitioning process, or has not been done within the past year.

b. Obtain a psychological evaluation, if appropriate.

c. Obtain an inventory of advance directives. Such statements of intent would include, but are not limited to, powers of attorney, living wills, organ donation statements, and statements by the person recorded in medical charts.

d. Establish contact with and develop a regular pattern of communication with the Professional Guardian of the property or any other fiduciary for the Ward.

(b) Professional Guardians shall develop and implement a written guardianship plan setting forth short-term and long-term objectives for meeting the goals, needs, and preferences of the Ward.

1. The plan must address medical, psychiatric, social, vocational, educational, training, residential, and recreational goals, needs, and preferences of the Ward.

2. If the Professional Guardian is appointed as guardian of the property, the plan must also address whether the Ward's finances and budget are in line with the services the Ward needs, and are flexible enough to deal with the changing status of the Ward.

3. Short-term goals must reflect the first year of guardianship, and long-term goals must reflect the time after the first year.

4. The plan must be updated no less often than annually.

(c) The Professional Guardian shall maintain a separate file for each Ward. The file must include, at a minimum, the following information and documents:

1. The Ward's name, date of birth, address, telephone number, Social Security number, medical coverage, physician, diagnoses, medications, and allergies to medications,

2. All legal documents involving the Ward,

3. Advance directives,

4. A list of key contacts,

5. A list of service providers, contact information, a description of services provided to the person, and progress/status reports,

6. A list of all over-the-counter and prescribed medications the Ward is taking, the dosage, the reason why it is taken, and the name of the doctor prescribing the medication,

7. Documentation of all client and collateral contacts, including the date, time, and activity,

8. Progress notes that reflect contacts made and work done regarding the Ward,

9. The initial guardianship plan and annual plans,

10. The initial inventory and annual accountings, if required,

11. Assessments regarding the Ward's past and present medical, psychological, and social functioning,

12. Documentation of the Ward's known values, lifestyle preferences, and known wishes regarding medical and other care and service,

13. Documentation of any goals or preferences expressed by the Ward that have been made known to the Professional Guardian and would required the expenditure of the Ward’s assets in excess of $1,000, and the date, time, location and individuals present when the goal or preference was expressed by the Ward; and,

(d) Professional Guardians shall visit Wards at least quarterly each year.

1. Professional Guardians shall assess the Ward's physical appearance and condition, the appropriateness of the Ward's current living situation, and the continuation of existing services while taking into consideration all aspects of social, psychological, educational, direct services, and health and personal needs as well as the need for any additional services.

2. Professional Guardians shall maintain substantive communication with service providers, caregivers, and others attending to Wards.

3. Professional Guardians shall participate in all care or planning conferences concerning the residential, educational, vocational, or rehabilitation program of Wards within the rights delegated to the professional guardian by the Court.

4. Professional Guardians shall regularly examine all services and all charts, notes, logs, evaluations, and other documents regarding Wards at the place of residence and at any program site to ascertain that the care plan is being properly followed.

5. Professional Guardians shall advocate on behalf of the Ward. Professional Guardians shall assess the overall quality of services provided to Wards, using accepted regulations and care standards as guidelines, and seeking remedies when care is found to be deficient.

6. Professional Guardians shall monitor the residential setting on an ongoing basis and take any necessary action when the setting does not meet the Ward’s current goals, needs, and preferences, including 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 Ward.

(e) Professional Guardians shall fully identify, examine, and continue to seek information regarding options that will fulfill the Ward’s goals, needs, and preferences.

1. Professional Guardians shall take full advantage of professional assistance in identifying all available options for long term services and support.

2. Sources of professional assistance include, but are not limited to Area Agencies on Aging, Centers for Independent Living, protection and advocacy agencies, Long Term Care Ombudsmen, Developmental Disabilities Councils, Aging and Disability Resource Centers, and community mental health agencies.

(14) DECISION-MAKING CONCERNING MEDICAL TREATMENT.

(a) Professional Guardians shall promote, monitor, and maintain the health and well-being of Wards under guardianship.

(b) Professional Guardians shall ensure that all medical care for Wards is appropriately provided and that Wards are treated with dignity.

(c) Professional Guardians shall ensure that Wards receive appropriate health care.

(d) Professional Guardians, in making health care decisions or seeking court approval for such decisions, shall:

1. Maximize the participation of Wards,

2. Acquire a clear understanding of the medical facts,

3. Acquire a clear understanding of the health care options and the risks and benefits of each option; and,

4. Encourage and support Wards in understanding the facts and directing a decision.

(e) Professional Guardians shall use the substituted judgment standard with respect to a health care decision, unless a Professional Guardian cannot determine a Ward’s prior wishes.

(f) Professional Guardians shall determine whether a ward, before the appointment of a Professional Guardian, executed any advance directives, such as powers of attorney, living wills, organ donation statements and statements by a Ward recorded in medical charts. On finding such documents, Professional Guardians shall inform the court and other interested parties of the existing health care documents.

(g) To the extent a Ward cannot participate in the decision making process, a Professional Guardian shall act in accordance with the Ward’s prior general statements, actions, values, and preferences to the extent the Professional Guardian actually knows or should know of them.

(h) If a Ward’s preferences are unknown and unascertainable, a Professional Guardian shall act in accordance with reasonable information received from professionals and persons who demonstrate sufficient interest in the Ward’s welfare to determine the Ward’s best interests, which determination shall include consideration of consequences for others that an individual in the Ward’s circumstances would consider.

(i) Absent an emergency or a Ward’s execution of a living will, durable power of attorney for health care, or other advance directive declaration of intent that clearly indicates a Ward's wishes with respect to a medical intervention, a Professional Guardian 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).

(j) In the event of an emergency, a Professional Guardian who has authority to make health care decisions shall grant or deny authorization of emergency medical treatment based on a reasonable assessment of the criteria contained in subsections (6) and (7), within the time allotted by the emergency.

(k) Professional Guardians shall seek a second medical opinion for any medical treatment or intervention that would cause a reasonable person to do so or in circumstances where any medical intervention poses a significant risk to a Ward. Professional Guardians shall obtain a second opinion from a licensed physician.

(l) Professional Guardians shall communicate with the treating medical provider before authorizing or denying any treatment or procedure that has been previously approved.

(m) Professional Guardians shall seek to ensure that appropriate palliative care is incorporated into all health care, unless not in accordance with a Ward’s preferences and values.

(15) DECISION-MAKING CONCERNING WITHOLDING AND WITHDRAWAL OF MEDICAL TREATMENT

(a) There are circumstances in which, with the approval of the court, it is legally and ethically justifiable to consent to the withholding or withdrawal of medical treatment, including artificially provided nutrition and hydration, on behalf of a Ward under guardianship.

(b) If a 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 Guardians shall have this ethical dilemma submitted to the court for direction.

(c) When making this decision on behalf of a Ward, Professional Guardians shall gather and document information as outlined in subsection (6) and shall follow subsection (7).

(16) CONFLICT OF INTEREST: ANCILLARY AND SUPPORT SERVICES.

(a) Professional Guardians shall avoid all conflicts of interest and self-dealing, when addressing the needs of Wards under guardianship. A 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 a 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 of the Ward.

(b) Guidelines relating to specific ancillary and support service situations include the following:

1. Professional Guardians may not directly provide housing, medical, legal, or other direct services to a Ward. Some direct services may be approved by the court.

a. Professional Guardians shall coordinate and assure the provision of all necessary services to Wards, other than guardianship services, rather than providing those services directly.

b. Professional Guardians shall be independent from all service providers and must challenge inappropriate or poorly delivered services and advocate on behalf of their Wards.

c. An exception to subsection (16) shall apply when a Professional Guardian can demonstrate unique circumstances indicating that no other entity is available to act as guardian, or to provide needed direct services provided that the exception is in the best interest of the Ward. Reasons for the exception must be documented and the court must be notified.

2. When a guardianship program operated by a Professional Guardian is a part of an organization or governmental entity, it shall have independent decision-making authority.

3. A Professional Guardian who is not a family member of the Alleged Incapacitate Person may act as a petitioner for the initial appointment of a guardian only when no other entity is available to act, provided all alternatives have been exhausted.

4. Professional Guardians may not employ their friends or family to provide services for a profit or fee unless no alternative is available and the Professional Guardian discloses this arrangement to the court and the services are provided at the going market rate.

5. Professional Guardians shall neither solicit nor accept incentives from service providers.

6. Professional Guardians shall consider various ancillaries or support service providers and select the providers that best meet the needs of the Ward.

7. Professional Guardians who are attorneys, or employ attorneys, may provide legal services to Wards only when doing so best meets the needs of the Wards and is approved by the court following full disclosure of the conflict of interest. Professional Guardians who are attorneys shall ensure that the services and fees are differentiated and are reasonable. The services and fees are subject to court approval.

8. Professional Guardians may enter into a transaction that may be a conflict of interest only when necessary, or when there is a significant benefit to a Ward under the guardianship, and shall disclose such transactions to the Court and obtain prior court approval.

(17) DUTIES OF THE PROFESSIONAL GUARDIAN OF THE PROPERTY

(a) Professional Guardians who are appointed to be guardians of the property shall have the following duties and obligations to Wards under guardianship; unless decision making authority has not been delegated to the Professional Guardian or the letters of guardianship provides otherwise:

(b) Professional Guardians, as a fiduciary, shall manage the financial affairs of Wards under guardianship in a way that maximizes the dignity, autonomy, and self-determination of the Ward.

(c) When making decisions Professional Guardians shall:

1. Give priority to the goals, needs, and preferences of the Wards; and,

2. Weigh the costs and benefits to the estate.

(d) Professional Guardians shall consider the current wishes, past practices, and evidence of likely choices of their wards. If significant impairment to a Ward’s physical, mental, or emotional health would result or there is no evidence of likely choices, Professional Guardians shall consider the best interests of the Ward.

(e) Professional Guardians shall assist and encourage Wards to act on their own behalf and to participate in decisions.

(f) The Professional Guardians shall use reasonable efforts to provide oversight to any income and assets under the control of Wards.

(g) Professional Guardians shall, consistent with court orders and state statutes, exercise authority only as necessitated by the limitations of the Ward.

(h) Professional Guardians shall provide competent management of Wards’ property and shall supervise all income and disbursements of the estate.

(i) Professional Guardians shall manage the estate only for the benefit of the Ward or as directed by the Court.

(j) Professional Guardians shall keep estate assets safe by keeping accurate records of all transactions and be able to fully account for all the assets in the estate at the time of the Professional Guardian’s appointment by the Court.

(k) Professional Guardians shall keep estate money separate from their personal money.

(l) Professional Guardians shall make claims against others on behalf of the estate when deemed in the best interest of the Ward and shall defend against actions that would result in a loss of estate assets.

(m) Professional Guardians 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.

(n) Professional Guardians shall employ Generally Accepted Accounting Principles when managing an estate.

(o) Professional Guardians shall determine if a will exists and obtain a copy to determine how to manage estate assets and property.

(p) Professional Guardians shall report to the Office of Public and Professional Guardians, the Department of Children and Families’ Adult Protective Services and local law enforcement incidents of abuse, neglect, and/or exploitation within a reasonable period of time under the circumstances.

(18) PROFESSIONAL GUARDIAN OF THE PROPERTY: INITIAL AND ONGOING RESPONSIBILITES.

(a) With the proper authority, the initial steps after appointment as Professional Guardian are as follows:

1. Professional Guardians shall address all issues of the estate that require immediate action, which include, but are not limited to, securing all real and personal property, insuring it at current market value, and taking the steps necessary to protect it from damage, destruction, or loss.

a. Professional Guardians shall ascertain the income, assets, and liabilities of the Ward.

b. Professional Guardians shall ascertain the goals, needs, and preferences of the Ward.

c. Professional Guardians shall coordinate and consult with others close to the Ward.

2. Professional Guardians shall meet with Wards under guardianship as soon after the appointment as feasible. At the first meeting, Professional Guardians shall:

a. Communicate to the Ward the role of the Professional Guardian,

b. Outline the rights retained by the Ward and the grievance procedures available,

c. Assess the previously and currently expressed wishes of the Ward and evaluate them based on current acuity, and

d. Attempt to gather from the Ward any necessary information regarding the estate.

3. Professional Guardians shall become educated about the nature of any incapacity, condition, and functional capabilities of the Ward.

4. Professional Guardians shall develop and implement a budget for the management of income and assets that corresponds with the care plan for the Ward and aim to address the goals, needs, and preferences of the Ward. Professional Guardians of the property and the Professional Guardian of the Person (if one exists), or other health care decision-maker, shall communicate regularly and coordinate efforts with regard to the care and budget, as well as other events that might affect the Ward.

a. The budget shall include a listing of all of the Ward’s known monthly income and assets. The budget shall also include a listing of all of the Ward’s recurring monthly expenses, including but not limited to housing, clothing, medical, health insurance, entertainment, and transportation costs.

b. Professional Guardians shall prioritize the well-being of Wards over the preservation of the estate.

c. Professional Guardians shall maintain the goal of managing, but not necessarily eliminating, risks.

5. Professional Guardians shall assess the feasibility of pursuing all public and insurance benefits for which Wards may be eligible.

6. Professional Guardians shall thoroughly document the management of the estate and the carrying out of any and all duties required by statute or regulation.

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.

8. All accountings must contain sufficient information to clearly describe all significant transactions affecting administration during the accounting period. All accountings must be complete, accurate, and understandable.

9. Professional Guardians shall oversee the disposition of Wards’ assets to qualify Wards for any public benefits program.

10. On the termination of the guardianship or the death of a Ward, Professional Guardians shall facilitate the appropriate closing of the estate and submit a final accounting to the court.

11. Professional Guardians may monitor, provide oversight, or manage the personal allowance of Wards.

12. Professional Guardians shall, when appropriate, open a burial trust account and/or make funeral arrangements for Wards.

(19) PROPERTY MANAGEMENT.

(a) Professional Guardians may not dispose of a Ward’s real or personal property without giving notice to interested parties and getting Court approval.

(b) In the absence of evidence of a Ward’s views before the appointment of a Professional Guardian, Professional Guardians, having the proper authority, may not sell, encumber, convey, or otherwise transfer property of a ward, or an interest in that property, unless doing so is in the best interest of the Ward.

(c) In considering whether to dispose of a Ward’s property, Professional Guardians shall consider the following:

1. Whether disposing of the property will benefit or improve the life of the Ward,

2. The likelihood that the Ward will need or benefit from the property in the future,

3. The previously expressed or current desires of the Ward with regard to the property,

4. The provisions of the Ward's estate plan as it relates to the property, if any,

5. The tax consequences of the transaction,

6. The impact of the transaction on the Ward's entitlement 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 waste; and,

11. The benefits versus the liability and costs of maintaining the property.

(d) Professional Guardians shall consider the necessity for an independent appraisal of real and personal property.

(e) Professional Guardians 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-dealing when addressing the needs of Wards under guardianship. Impropriety 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 of a Ward.

(b) Standards relating to specific situations that might create an impropriety or conflict of interest include the following:

1. Professional Guardians shall not commingle personal or program funds with the funds of Wards, except as follows:

a. This standard does not prohibit Professional Guardians from consolidating and maintaining Wards’ funds in joint accounts with the funds of other Wards.

b. If Professional Guardians maintain joint accounts, separate and complete accounting of each Ward's funds shall also be maintained by the Professional Guardian.

c. If the court allows the use of comingled accounts, they should be permitted only where Professional Guardians have available resources 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 Ward.

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 or herself, a spouse, a coworker, an employee, a member of the board of the agency or corporate Professional Guardian, an agent, or an attorney, or any corporation or trust in which the Professional Guardian has a substantial beneficial interest.

3. Professional Guardians may not sell or otherwise convey a Ward’s property from any of the parties noted in subparagraph (20)(b)2.

4. Professional Guardians may not loan or give money or objects of worth from a Ward's estate unless specific prior approval is obtained from the court.

5. Professional Guardians may not use a Ward'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 Guardians may not lend funds to a Ward unless there is prior notice of the proposed transaction to interested persons and others as directed by the court or agency administering the Ward's benefits, and the transaction is approved by the court.

8. Professional Guardians may not profit from any transactions made on behalf of a Ward's estate at the expense of the estate, nor may the Professional Guardian compete with the estate, unless prior approval is obtained from the court.

9. Professional Guardians shall not give anything of value associated with a guardianship referral.

(21) TERMINATION AND LIMITATION OF PROFESSIONAL GUARDIANSHIP

(a) Professional Guardians shall assist Wards under guardianship to develop or regain the capacity to manage their personal and financial affairs.

(b) Professional Guardians shall seek termination or limitation of the guardianship in the following circumstances:

1. When a Ward has developed or regained capacity in areas in which he or she was found incapacitated by the court,

2. When less restrictive alternatives exist,

3. When a Ward expresses the desire to challenge the necessity of all or part of the guardianship,

4. When a Ward has died, or

5. When a guardianship no longer benefits the Ward.

(22) PROFESSIONAL GUARDIANSHIP SERVICE FEES.

(a) Professional Guardians are entitled to reasonable compensation for their services.

(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.

(c) A Professional Guardian may not abandon a Ward when estate funds are exhausted.

(d) Fees or expenses charged by a Professional Guardian shall be documented through billings maintained by the Professional Guardian and they shall clearly and accurately state:

1. The date and time spent on a task,

2. The duty performed,

3. The expenses incurred,

4. The collateral contacts involved; and,

5. The identification of the individual who performed the duty (e.g., guardian, staff, volunteer).

6. All parties should respect the privacy and dignity of the person when disclosing information regarding fees.

(23) MANAGEMENT OF MULTIPLE PROFESSIONAL GUARDIANSHIP CASES.

Professional Guardians shall limit his or her caseload to allow the Professional Guardian to properly carry out his or her duties for each Ward within statutory guidelines.

Rulemaking Authority 744.2001(2)(b) FS. Law Implemented 744.2001(2)(b) FS. History–New.

 

58M-2.011 Disciplinary Action and Guidelines.

(1) Purpose. Pursuant to section 744.20041, F.S., the Office of Public and Professional Guardians provides disciplinary guidelines in this rule for applicants or guardians over whom it has oversight. The purpose of this rule is to notify applicants and guardians of the range of penalties which will routinely be imposed, unless the Office of Public and Professional Guardians finds it necessary to deviate from the guidelines for the stated reasons given in this rule. The range of penalties are based upon a single count violation of each provision listed. Multiple counts of the violated provisions or a combination of the violations may result in a higher penalty. Each range includes the lowest and highest penalties that may be imposed for that violation. For applicants, all offenses listed in the Disciplinary Guidelines are sufficient for refusal to certify an application for registration. The Office of Public and Professional Guardians may find it necessary to deviate from the guidelines for the reasons stated in subsection (3) of this rule.

(2) Violations and Range of Penalties. In imposing discipline upon applicants and guardians, the Office of Public and Professional Guardians shall act in accordance with guidelines and shall impose a penalty within a range corresponding to the violations set forth in form DOEA/OPPG Form 003, Office of Public and Professional Guardians Disciplinary Guidelines (XXX 2016), incorporated herein by reference and available at https://www.flrules.org/XXXXXXX, unless the Office of Public and Professional Guardians finds it necessary to deviate from the guidelines for the stated reasons given in subsection (3) of this rule.

(3) The Office of Public and Professional Guardians shall take into consideration the danger to the public; the number of repetitions of offenses; the length of time since date of violation; the number of disciplinary actions taken against the guardian; the length of time the guardian has practiced; the actual damage, physical or otherwise, to the ward; the deterrent effect of the penalty imposed; any efforts for rehabilitation; and any other mitigating or aggravating circumstances in determining the appropriate disciplinary action to be imposed.

Rulemaking Authority 744.20041 F.S. Law Implemented 744.20041 F.S. History–New.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Jason Nelson

NAME OF AGENCY HEAD WHO 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