Ch. 742 BASTARDY Ch. 742 CHAPTER 742...

Ch. 742 BASTARDY Ch. 742

CHAPTER 742

BASTARDY

7 42.011 Bastardy proceedings; circuit court jurisdiction.

742.021 Same; venue, process, complaint. 742.031 Same; hearings; court orders, support,

hospital expenses, etc. 742.041 Same; monthly contributions. 7 42.06 Same; jurisdiction retained for future

orders.

742.011 Bastardy proceedings; circuit court jurisdiction.-Any unmarried woman who shall be pregnant or delivered of a bastard child, may bring proceedings in the circuit court, in chancery, to determine the paternity of such child.

Hlstory.-§1, ch. 26949, 1951.

742.021 Same; venue, process, complaint.The proceedings shall be by verified complaint filed in the circuit court of the county in which the woman resides or of the county in which the alleged father resides. The complaint shall aver sufficient facts charging the paternity of the child. Process directed to the defendant shall issue forthwith requiring the defendant to file his written defenses to the complaint in the same manner as suits in chancery. Upon application and proof under oath, the court may issue a writ of ne exeat against the defendant on such terms and conditions and conditioned upon bond in such amount as the court may determine.

Hlstory.-§2, ch. 26949, 1951.

742.031 Same; hearings; court orders, support, hospital expenses, etc.-Hearings for the purpose of establishing or refuting the allegations of the complaint and answer shall be held in the chambers and may be restricted to such persons, in addition to the parties

· involved and their counsel, as the judge in his discretion may direct. The court shall determine the issues of paternity of the child, and the ability of the parents and each of them to support the child and if the court shall find the defendant to be the father of the child he shall so order and shall further order the defendant to pay the complainant, her guardian or such other person assuming responsibility for the child as the judge may direct, such sum or sums as shall be sufficient to pay reasonable attorney's fee, hospital or medical expenses, cost of confinement and any other expenses incident to the birth of such child. In addition the court shall order the defendant to pay periodically for the support of such child such sums as shall be fixed by the court in accordance with the provisions of this act, and also all taxable costs of the proceedings. Upon request of either party, the issue of the paternity of such child may be tried by jury and the chancellor shall transfer the cause for the determination of such issue.

mator;,..-§3, ch. 26949, 1951; §1, ch. 58-45.

742.07 Effect of adoption. 742.08 Default of support payments. 742.09 Publishing names; penalty. 742.091 Marriage of parents. 742.10 Chapter in lieu of other proceedings. 742.11 Presumed legitimacy of child conceived

by means of artificial insemination.

742.041 Same; monthly contributions.-The court shall order the defendant to pay monthly for the care and support of such child the following amounts: From date of birth to 6th birthday-$40 per month From 6th birthday to 12th birthday-$60 per month From 12th birthday to 15th birthday-$90 per month From 15th birthday to 18th birthday-$110 per month Such amounts may be increased or reduced by the judge in his discretion depending upon the circumstances and ability of the defendant.

History.- §4, ch. 26949, 1951.

742.06 Same; jurisdiction retained for future orders.-The court shall retain jurisdiction of the cause for the purpose of entering such other and further orders as changing circumstances of the parties may in justice and equity require.

History .-§5, ch. 26949, 1951.

742.07 Effect of adoption.-Upon the adoption of a child, for whom support has been ordered, by some person other than the father, the liability of the father for the support of the child shall be terminated.

History .-§6, ch. 26949, 1951.

742.08 Default of support payments.-Upon default in payment of any moneys ordered by the court to be paid, the court may enter a judgment for the amount in default which shall be a lien upon all property of the defendant both real and personal. Willful failure to comply with an order of the court shall be deemed a contempt of the court entering the order and shall be punished as such. The court may require bond of the defendant for the faithful performance of his obligation under the order of the court in such amount and upon such conditions as the court shall direct.

Hlstory.-§7, ch. 26949, 1951.

742.09 Publishing names; penalty.-It shall be unlawful for the owner, publisher, manager or operator of any newspaper, magazine, radio station or other publication of any kind whatsoever, or any other person responsible therefor, or any radio broadcaster, to publish the name of any of the parties to any court proceeding instituted or prosecuted under this act; and any person violating this provision

2001

Ch. 742 BASTARDY

shall be guilty of a misdem~anor of the first degree, punishable as provided in §775.082 or §775.083.

History.-§8. ch. 26949, 1951; §697, ch . 71-136.

742.091 Marriage of parents. - If the mother of any bastard child and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held legitimate, and upon the :~ayment of all costs and. attorney fees as determined by the court, the cause shall be dismissed and the bond provided for in §742.021 shall be void. The record of the proceedings in such cases shall be sealed against public inspection in the interests of the child.

Blstor;r.-fl, ch. 57-267.

742.10 Chapter in lieu of other proceedings. -This chapter shall be in lieu of any other proceedings provided by law for the determination of paternity and support of bastard children.

mator;r.-18, ch. 268U, 1851; flO, cb. 27881, 1853.

742.11 Presumed legitimacy of child conceived by means of artificial insemination.Any child born within wedlock who has been conceived by the means of artificial ~!!semination _is irrebuttably presumed to be legitimate, provided that both husband and wife have consented in writing to the artificial insemination. History.-~1. ch . 73-104.

2002

DISABILITY OF NONAGE OF MINORS REMOVED Ch. 743

CHAPTER 743

DISABILITY OF NONAGE OF MINORS REMOVED 743.01 Removal of disabilities of married

minors. 743.04 Removal of disabilities of persons en

titled to benefits under the "Home, Farm and Business Loans Act."

743.01 Removal of disabilities of married minors.-The disability of nonage of a minor who is married or has been married or subsequently becomes married, including one whose marriage is dissolved, or who is widowed, or widowered, is removed. The minor may assume the management of his estate, contract and be contracted with, sue and be sued, and perform all acts that he could do if not a minor.

Hiotory.-§§1, 2, ch. 7364, 1917; RGS 3962, 3963; §1, ch. 9286, 1923; CGL 5881, 5882, 5883; §1, ch. 22750, 1945; §1, ch. 71-147; §1, ch. 73-300. cf.-§62.011 &moval of minor's disabilities.

7 43.04 Removal of disabilities of persons entitled to benefits under the "Home, Farm and Business Loans Act."-A minor authorized to participate in the rights, privileges and benefits conferred by chapter 37 of Title 38 U. S. C., "Home, Farm and Business Loans Act," is authorized to make and execute all contracts necessary for the full utilization of the rights, privileges, and benefits conferred under said chapter if the person is otherwise competent tO make and execute contracts. The contracts so made shall have the same effect as though they were the contracts of persons who were not minors.

Hiotory.-§1, ch. 23873, 1947; §24, ch. 69-353; §2, ch . 71-147.

743.05 Removal of disabilities of minors; borrowing money for educational purposes.For the purpose of borrowing money for their own higher educational expenses, the disability of nonage of minors is removed for all persons who have reached sixteen years of age. Such minors are authorized to make and execute promissory notes, contracts, or other instruments necessary for the borrowing of money for this purpose. The promissory notes, contracts, or other instruments so made shall have the same effect as though they were the obligations of persons who were not minors. No such obliga-

7 43.05 Removal of disabilities of minors; borrowing money for educational purposes.

743.06 Removal of disabilities of minors; donation of blood without parental consent.

743.07 Rights, privileges, and obligations of persons 18 years of age or older.

tion shall be valid if the interest rate on it exceeds 7 percent a year.

Hiotory.-§1 , ch. 59-268; §1, ch . 69-105; §2, ch. 71-147.

7 43.06 Removal of disabilities of minors; donation of blood without parental consent.Any minor who has reached the age of eighteen years may give consent to the donation, without compensation therefor, of his blood and to the penetration of tissue which is necessary to accomplish such donation. Such consent shall not be subject to disaffirmance because of minority. The consent of the parent or parents of such a minor shall not be necessary in order to authorize such donation and such penetration of tissue.

Bla&orJ.-11. ch. 10·430.

743.07 Rights, privileges, and obligations of persons 18 years of age or older.-

(1) The disability of nonage is hereby removed for all persons in this state who are 18 years of age or older, and they shall enjoy and suffer the rights, privileges, and obligations of all persons 21 years of age or older ilxcept as otherwise excluded by the state constitution immediately preceding the effective date of this section.

(2) This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years; and any crippled child as defined in chapter 391 shall receive benefits under the provisions of said chapter until age 21, the provisions . of this section to the contrary notwithstanding.

(3) This section shall operate prospectively and not retrospectively, and shall not affect the rights and obligations existing prior to July 1, 1973.

Hiotory.-§§2, 3, ch. 73-21. cf.-§1.01(14) Minor defined.

2003

Ch. 744 FLORIDA GUARDIANSHIP LAW, FIRST PART

CHAPTER 744

FLORIDA GUARDIANSHIP LAW, FIRST PART

744.01 744.02 744.03 744.04 744.05

744.06 744.07 744.10 744.11 744.12 744.13 744.14 744.15 744.16

744.17

744.18

744.19

744.20

744.21

744.22

744.23

744.24

744.25

744.26

744.27

744.28 744.29 744.30 744.31

744.315

744.32

Short title. Application. Definitions. Liberal construction. Guardians of incompetent world war

veterans. Jurisdiction. Court always open. Change of domicile of ward. Venue. Guardian ad litem. Natural guardians. Testamentary guardian. Foreign guardians. Foreign guardian may manage the

property of nonresident ward. Sale, mortgage or lease by foreign

guardian of nonresident ward. Resident guardian of the property of

nonresident incompetent. Petition for appointment of resident

guardian for the property of nonresident incompetent.

Guardian ad litem for property of nonresident incompetent.

Notice of hearing on petition for appointment of resident guardian of the property of nonresident incompetent.

Hearing on petition for appointment of resident guardian of the property of nonresident incompetent.

Costs on appointment of resident guardian of the property of nonresident incompetent.

Testimony at hearing on appointment of resident guardian of the property of nonresident incompetent.

Preference in appointment as resident guardian of the property of nonresident incompetent.

Bond, oath, duties and powers of resident guardian of the property of nonresident ward.

Who may be appointed guardian of a resident incompetent.

Pleadings. Notice and service. Petition for appointment of guardian. Petition for appointment of guardian

for a person mentally or physically incompetent.

Appointment of guardian of estate of physically incapacitated person without adjudication of incompetency.

Subpoenas and depositions.

7 44.01 Short title.- This chapter, together with chapters 745 and 746 next following, is known and may bE. cited as the Florida guardianship law.

BlatorJ.-11. ch. 8478, 1921; CGL 5884; f1, eb. 22750, 1945.

7 44.33 Notice of hearing on petition for appointment of guardian for an incompetent.

744.34 Order of appointment. 744.35 Preference in appointment. 744.36 Oath of guardian. 744.37 Oaths and affidavits. 744.38 Bond of guardian. 744.39 Bond of surety company. 744.40 Letters of guardianship. 7 44.41 Insufficiency of bond. 744.42 Validity of bond. 744.43 Liability of surety. 744.44 Suit upon bond. 744.45 Release of surety. 744.46 Resident agent. 7 4<1.4 7 Costs. 744.48 Duties of guardian of the person. 744.481 Periodic examination of ward. 744.482 Duty to file report. 744.483 Expense of examinations; insufficient

744.484 744.49 744.50 744.51 744.52

assets. Relief to be granted. Powers of guardian of the person. Payments to guardian of the person. Duties of guardian of the property. Guardian to take possession of all prop-

erty. 744.53 Duty to file inventory. 744.54 Appointment and qualification of ap-

praisers. 744.55 744.56 744.57 744.58 744.59

744.60 744.61

-744.62-

Form and return of appraisal. Compensation of appraisers. When appraisal unnecessary. Inventory or appraisal as evidence. Subsequently discovered or acquired

property. Settlement of claims. Suits by and against guardian or ward. Suspension of statutes of limitations in

favor of guardian. 744.63 Suspension of statutes of limitations in

favor of claimants. 744.64 Application of income of property of

ward. 744.65 Petition for support of ward's depend-

744.66 744.67 744.68 744.69 744.70 744.71 744.72 744.73

ents. Continuance of business. Cultivation of lands. Burial expenses of ward. Legislative intent. Definitions. Limited guardianship. Standby guardianship. Corporate guardianship.

7 44.02 Application.-This Florida guardianship law shall take effect on January 1, 1946, at 12:01 o'clock in the morning, and thereafter shall govern all matters pertaining to guardians and wards and the property of such wards,

2004

Ch. 744 FLORIDA GUARDIANSHIP LAW, FIRST PART Ch. 744

whether the guardianship exists at the time this law takes effect or arises thereafter; provided, however, that all guardianships and curatorships pending in the circuit courts at the time this law takes effect shall be completed in such courts according to the laws heretofore existing.

BlotorJ.-§50, Nov. 20, 1828; RS 2087; OS 2604; R08 3885; fl, ch. 8478, 1921 ; COL 5885 ; am. 11, ch. 22750, 1945.

744.03 Definitions.-When used in this law, unless the context requires otherwise:

(1) A "guardian" is one to whom the law has entrusted the custody and control of the person or of the property, or of both, of an incompetent. "Guardian" may mean curator, conservator or committee where the context indicates a general, and not a particular, use of the term.

(2) A "guardian ad litem" is one appointed by a court, in which pa rticular litigation is pending, to represent a ward in that }Jarticular litigation.

(3) A "foreign guardian" is one appointed in another state or country.

( 4) A "testamentary guardian" is one appointed for the person of a minor child by the will of its parent.

(5) An "incompetent" is any person who, because of minority, senility, lunacy, insanity, imbecility, idiocy, drunkenness, excessive use of drugs or other physical or mental incapacity, is incapable of either managing his property or caring for himself, or both.

*(6) An "infant" or a "minor" is a person under twenty-one years of age whose disabilities have not been removed by marriage or otherwise according to law.

(7) "Probate court" means circuit court. (8) "Property" means realty, personalty,

choses . in action or any interest in the same, legal or equitable, and also claims or rights of action arising in tort.

(9) A "ward" is an incompetent for whom a guardian has been appointed.

Hiotory.-§50, Nov. 20, 1828; RS 2088; GS 2605; RGS 3966; §1 , ch. 8478, 1921; CGL 5886; §1, ch. 22750, 1945; §28, ch. 73-334.

•Note.-Ch. 73-21, Laws of Florida, removed the disability of nonage for persons 18 years of age and older. cf.- §1.01(14) Definition of min or.

§743.07 Rights , privileges and obligations of persons 18 years of age or older .

744.04 Liberal construction.--This law shall be liberally construed to the end that controversies and the rights of the parties may be speedily and finally determined; and the rule that statutes in derogation of the common law shall be strictly construed does not apply.

WotorJ.-§2089, RS 1892 ; OS 2606; ROS 3967; COL 5887; am. f 1, ch. 22750, 1945.

744.05 Guardians of incompetent world war veterans.-The provisions of this law shall extend to incompetent world war veterans, specifically provided for in chapters 293 and 294, or any amendment or revision thereof. The provisions of this law shall be cumulative to the provisions of said chapters. However, any conflict arising between provisions in

said chapters 293 and 294, or any amendment or revision thereof, and this law shall be resolved by giving effect to the law as stated in said chapters.

BlatorJ.-§1, Nov. 20, 1828; RS 2090; 08 2807; ROB 3968; COL 5888; am. f 1, ch. 22750, 1945.

744.06 Jurisdiction.-(!) CIRCUIT JUDGE.-(a) The circuit court shall have jurisdic

tion over all matters pertaining to guardians and wards and to the management and the administration of the property of wards, regardless of the origin or cause of the incompetency of the ward.

(b) The circuit judge may appoint a guardian of the person or of the property, or of both, of an incompetent. The circuit judge may hear and determine complaints of wards against their guardians, require of guardians security or additional security when necessary, displace them, and make such orders as to the said circuit judge may seem equitable and right relating to the estates of wards. The circuit judge may require of guardians, from time to time, inventories of their wards' estates, and accounts of receipts and disbursements, and shall make such orders as to him shall seem just. He may enforce his orders in a summary way by attachment for contempt and by imprisonment.

(c) All orders of the circuit court judge in guardianship matters shall be in writing and shall be filed and recorded in the circuit court.

(d) In a conflict as to jurisdiction between circuit courts, the first to obtain lawful jurisdiction shall retain it.

(2) DISTRICT COURTS OF APPEAL.-In guardianship proceedings the district courts of appeal shall have no jurisdiction except the appellate jurisdiction authorized by §4, Art. V of the state constitution.

(3) COURT OF EQ_UITY. - No court of equity shall be deprived of its inherent jurisdiction to appoint or to remove guardians or require of them accountings of their trusts or to administer the estates of wards in cases in which equitable intervention is necessary for complete and adequate relief.

Hiotory.-§1, ch. 3887, 1889; RS 2091; GS 2608; RGS 3969; CGL 5889; §1, ch. 22750, 1945; §10, ch . 73-299; §28, ch. 73-334.

744.07 Court always open.-The circuit court, for the exercise of its jurisdiction in all guardianship matters, shall be open at all times for the transaction of business.

Hiotor y.- §2092, RS 1892; GS 2609; RGS 3970; CGL 5890; §1 , ch . 22750, 1945; §28 ch . 73-334.

744.10 Change of domicile of ward.-The domicile of a resident w~rd is the county in which the guardian of the person was lawfully appointed. The circuit judge may, upon good cause shown by petition of the guardian of the person and proof of the allegations therein contained, authorize a change of the domicile of the ward.

History.-§35, Nov. 20, 1828; §1, ch . 1560, 1888; RS 2095; GS 2612; RGS 3973; CGL 5893; §1, ch . 22750, 1945; §30, ch . 73-334.

2005

Ch. 744 FLORIDA GUARDIANSHIP LAW, FffiST PART

744.11 Venue. - The venue in proceedings for the appointment of any guardian shall be as follows:

(1) If the incompetent is a resident of this state, the venue shall be in the county where the incompetent resides.

(2) If the incompetent is not a resident of this state, then the venue shall be in any county in Florida in which property of the incompetent is located.

(3) If the incompetent is not a resident of this state and owns ~o property located or situated in this state, then the venue shall be in the county where any debtor of the incompetent resides.

any instance does not exceed two thousand five hundred dollars, without appointment, authority, or bond.

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

History.- §:>, ch . H6H. );;:',9; HS 209H; GS 21; J.J; J((iS :m;,-,, l"lil. .'>H»:\ ~1. ch . 227:10, J»4 i>; ~I. ch . (; J.:J!-1:'>; ~~ -,-h . 72-~;,x_

744.14 Testamentary guardian.- A surviving father or a surviving mother may by will name a guardian for the person of his or her minor child to serve during such child's minority or any part thereof. Such guardian shall be subject to the provisions of law in the same manner as other guardians. (4) Whenever the domicile of an incom-

petent is changed to another county, the guard- Hlstory.-l2099, as 1892; as 2615; aas 397&; caL 588&: §1, ch. 22750, 1945. ian of said incompetent may, by filing a peti- cf.-§744.03(41, Definition. tion, in which the facts concerning said change 1744 ·35 Preference In appointment. of domicile are stated, have the venue of said 744.15 Foreign guardians.-guardianship changed to the county of the ac- (1) Foreign guardians who produce orders quired domicile. · t' th d' t Hlstory.-11. ch. 14733. 1931 ; caL 1936 supp. 5893 <1l : u. appom mg em guar 1ans, cura ors, conserva-ch. 22750, 1945; u. ch,. 61-114. tors or committees, duly obtained in any state,

744.12 Guardian ad litem.-Whenever an in- territory or country and certified or exemplified competent is made a party to any litigation according to law, shall be authorized• to mainpending in any court in this state and has no tain actions in the several courts in this state guardian, or when his interest is adverse to that under the same rules and regulations as other of his guardian, such court shall appoint, with pla(~)tif~~ardians appointed in any state, terrior without notice, a guardian ad litem for such incompetent. A guardian ad litem shall be re- · tory or country may be sued in this state with sponsible to such incompetent for his conduct in reference to property, real or personal, in this connection with such litigation in the same man- state, and may defend any suit, action or proner as if he were a regularly qualified guardian. ceeding in any court of this state. A guardian ad litem shall make and file an oath (3) Debtors who have received no written to discharge his duties faithfully; however, this demand for payment from a guardian appointed oath shall not be jurisdictional. The guardian in this state within three months after the apad litem may appear and plead without service pointment of a guardian, curator, conservator of process upon him, and he shall appear and or committee in any state, territory or country plead without service of process upon him if other than this state, and whose property in directed to do so by the court appointing him. Florida is subject to a mortgage or other lien

Rlstory.-fl. ch. 868, 1859; as 2097; os 2613: Ras 3974: coL securing such debt held by such foreign guard-5894: u. ch. 22750, 1945. ian, curator, conservator or committee, may ef.-1 744.03121. Definition. make payment to the foreign guardian, curator,

744.13 Natural guardians.- conservator or committee after the expiration (1) The mother and father jointly are of three months from the date of his appoint

natural guardians of their own children and of ment. A proper satisfaction of s1,1ch mortgage their adopted children · during minority. If one or lien executed and acknowledged by the forparent dies, the natural guardianship shall pass eign guardian, curator, conservator or committo the surviving parent, and the right shall con- tee after said three months has expired, in the tinue even though the surviving parent remar- manner and form entitling the same to record ries. If the marriage between the parents is dis- in this state, with a duly certified or exemplisolved, the natural guardianship shall belong fied copy of the letters or other evidence of to the parent to whom the custody of the chil- authority of such foreign guardian, curator, dren is awarded. If the parents are given joint conservator or committee attached thereto, custody, then both shall continue as natural may be recorded in the public records of this guardians. If the marriage is dissolved and state in like manner as other satisfactions; and neither the father nor the mother is given custody when so recorded shall constitute an effective of the children, neither shall act as natural discharge of any such mortgage or lien, irreguardian of the children. The mother of an ille- spective of whether the debtor making paygitimate child is . the natural guardian of the ment had received such written demand before child. paying the same.

(2) The mother and father jointly, or the (4) All persons indebted to a ward or hav-survivor, may collect, receive, manage, and dis- ing possession of personal property, either tanpose of any personal property inherited by, gible or intangible, belonging to a ward, who or otherwise accruing to the benefit of, the child have received no written demand for payment during minority, when the amount involved in of such indebtedness or the delivery of such

2006

FLORIDA GUARDIANSHIP LAW, FIRST PART Ch. 744

property from a guardian appointed in this state are authorized to make payment of such indebtedness or to deliver such nersonal property to the foreign guardian, curator, conservator or committee after the expiration of three months from the date of his appointment.

Bldor:r.-1 f1924 , 2100, RS 1892 ; OS 2618 ; ROS 3977; COL 6897; am. f 1, ch. 22750, 1945.

.guardian of nonres ident ward.-A foreign guardian of a nonresident ward may sell, mortgage or lease real or personal property of his ward in this state in the same manner as provided in this law for the sale, lease or mortgage of real or personal property by a resident gua;dian · provided, however, that such foreign gua'rdian must designate a ~esident agent as required by §7 44.46; a~d p:r:ov~de?, ~urther, that

744.16 Foreign guardian may manage the the circuit judge havmg JUnsdiCtiOn may re-property of nonresident ward.- quire of such foreign guardian boJ?-~ for the

(1) A guardian of the property of a non- proper application of the funds ansmg from resident ward, duly appointed by a court of such sale lease or mortgage, as in his discretion another state, territory or country, who desires he may leem necessary to protect the interests to manage any part or all of the real and per- of the ward and to protect the Florida creditors sonal property located in Fl~r~da ?f such. no~- of the ward. Any deed, lease or mortgage exeresident ward, shall file a petition m the Circu!t cuted by a foreign guardian of a nonresident court for the county wherein such property IS ward under the provisions of this law, when located setting forth his appointment, describ- authorized or confirmed by the circuit judge, ing the' property involved, stating the estimated shall be effective to convey, lease or mortgage value thereof showing, to the best of his know!- the right, title and interest of the ward in the edge and belief, the indebtedness, if any, ex~st- property involved. ing against the ward in this state and settmg History.- §!, ch. 5904, 1909; RGS 3979; CGL 5ll99; §1, en. 141!37, forth his desires with reference to such property. 1931; CGL 1936 Supp. 5902(1); §1, ch. 22750, 1945; §30, ch. 73-334.

(2) Such guardian shall also designate a 744.18 Resident guardian of t_he J?roperty of resident agent as required by §7 44.46. nonresident incompetent.-The circUit Judge of

(3) Such guardian shal~ ~ile wit~ such P~- a county in which property, real or perso!lal, of tition, certified or exemphfied cop1es of his a nonresident incompetent is located, which reletters of guardianship_ and of his bon4 or ~thE;r quires the care of a guardia!!, may app_oint a security. Evidence satisfactory to said circUit resident of Florida as guardian of the mcomjudge shall be produced showing that the for- petent's property u~on the petiti.on of a relative, eign bond or other security is sufficient to next friend or creditor of such mcompetent, reguarantee the faith~! managemt;nt . o~ the gardless of whether he has. a fo.reign gu~rdian ward's property in this st~te. The circUit J~dge or not. The foreign guardian, If there 1s one, in his discretion may require a new guardian's may also petition for the appointment of such bond in this state in such amount as he deems resident guardian. necessary, to be executed in accor~a!lce with History.- §2, ch. 5144, 1903; as 2618; RGS 3980; CGL 5900; §1, the laws of this state and to be conditioned for ch. 22750, 1945; §30, ch . 73-334. the proper management and application of the 744.19 Petition for appointment of. resid~nt property of the ward coming into ~he ~u~tody guardian for the property of nonresident m-of said guardian in this state. The circuit Judge competent.-may make such order or orders wi~h reference (1) The petition for the appointment of a to said petition as he deems appropriate. resident guardian for the property of a non-

( 4) This section shall apply to and be op- resident incompetent shall be in writing, and erative in all cases in which the guardian of a shall be prepared in accordance with the renonresident ward is appointed by a court, or is quirements of §744.30. made such guardian by virtue of the laws of (2) If it is alleged that the incompetency is another state, territory or country. In cases in due to mental or physical incapacity, the petiwhich, by virtue of the laws of such state, ter- tion shall be accompanied by a duly certified or ritory or country, a person becomes the guar- exemplified copy of the adjudication of undian of an estate of an incompetent domiciled soundness of mind or of physical incapacity therein, without an appointment by a court, or from the qualified authorities in the state, teris not required to give bond or other security ritory or country where such incompetent is as such guardian, then the production of copies domiciled, and shall state whether said inco!"of letters of guardianship and bond or other petent is in the custody of any person or Insecurity, and the evidence referred to in this stitution and if so, shall give the name and section, shall not be required; provided, that post-offi~e address of the custodian. Said adsatisfactory proof to the circuit judge is pro- judication shall constitute prima facie proof duced that such guardianship exists under the of such incompetency. laws of such state, territory or country; and (3) If the question as to the mental or provided, further, that bond may be required by physical incapacity of a nonresident is prethe circuit judge in such amount as he may deem sented while he is temporarily residing in Flor-necessary. ida and if he is not under an adjudication of

History.-§1, ch. 5144, 1903; as 2617; RGS 3978; CGL 5898; §1, inc~mpetency made in some other state, terri-ch. 22750, 1945; §30, ch. 73-334. tory or country, the proced_ure for t?e appoint-

744.17 Sale, mortgage or lease by foreign ment of a resident guardian of h1s property

2007


shall be the same as though he were a citizen of Florida.

(4) The circuit judge may, if he deems it advisable, require the petitioner to execute and file a bond with good and sufficient sureties in a penal sum to be fixed by the judge and conditioned to pay the costs of such proceedings.

History.-§!, ch. 12042, 1927; CGL 5901; §1, ch. 22750, 1945; §30, ch. 73-334. cf.-§744.26, Bond, oath and duties.

§744.30, Petition for appointment of guardian.

744.20 Guardian ad litem for property of nonresident incompetent.-After the filing of the application for appointment of a resident guardian of the property of a nonresident incompetent, the circuit judge may make an order in writing appointing an attorney at law as guardian ad litem to defend the interest of the person alleged to be incompetent, who shall take oath and traverse the allegations of the application and defend the interests of the person alleged to be incompetent.

History.-§2, ch. 12042, 1927; CGL 5902; . §1, ch. 22750, 1945; §I, ch. 67-80; §30, ch. 73-334.

744.21 Notice of hearing on petition for appointment of resident guardian of the property of nonresident incompetent.-When the ground for the appointment of such guardian is minority or is incompetency previously adjudicated in another state, territory or country, notice of the hearing shall be served personally or by registered mail on such incompetent and his legal custodian, if any, and also on one or more members of his family or relatives, if any are known to the petitioner, at least ten days before the hearing.

Blstor:r.-§1, ch. 14836, 1931; COL 1936 Supp. 5902(2); am. f1, ch. 22750. 1945. cf.-0.01 Defines ;·egistered mail to include certified mail with

return receipt requested.

744.22 Hearing on petition for appointment of resident guardian of the property of nonresident incompetent.-Upon the day set for the hearing on the petition for appointment of a resident guardian of the property of a nonresident incompetent, or on the date until which the hearing is adjourned for cause, the circuit judge, after hearing the evidence, shall issue an order granting or denying the relief sought in the petition.

History.-HS 2101; §!, ch. 4134, 1893; GS 2619, 2620; RGS 3981, 3982; CGL 5903, 5904; §1 , ch. 22750 , 1945; §30, ch. 73-334.

744.23 Costs on appointment of resident guardian of the property of nonresident incompetent.-

(1) The circuit judge shall fix the compensation of the guardian ad litem and shall tax such compensation as costs in the case.

(2) If the petition is granted, the judgment for costs shall be against the guardian of the property of the nonresident incompetent, to be satisfied out of said property. If the petition is denied, the costs shall be against the applicant, or against the applicant and the obligors on the bond for costs, when such bond has been required.

History.-RS 2102; GS 2621; RGS 3983; CGL 5905; §1 , ch. 22750 1945; §30, ch. 73-334. '

7 44.24 Testimony at hearing on appointment of resident guardian of the property of nonresident incompetent.-Testimony to be used at the hearing on the petition for the appointment of ~ resi~ent guardian of the property of a nonresident mcompetent may be taken and filed as provided in this law for the taking of te~timony in other guardianship proceedings.

History.-§!, ch. 4720, 1899; GS 2629 · ROB 3991· COL 5913· am. § 1, ch. 22750, 1945. ' ' '

744.25 Preference in appointment as resident guardian of the property of nonresident incompetent. - In the appointment of such guardian the circuit judge shall be governed by the provisions of §744.35.

History.-§2, ch. 4720, 1899; GS 2630; RGS 3992; CGL 5914; §1, ch. 22750, 1945; §30, ch. 73-334.

7 44.26 Bond, oath, duties and powers of resident guardian of the property of nonresident ward.-When a resident guardian of the property of a nonresident ward has been appointed, h!s duties as to oath and bond, and his other duties, powers and liabilities as to the c~;~stody, ?ontrol, management and disposition of h1s wards property, and as to his removal accounting and discharge shall be governed by the laws of this state pertaining to resident guardians of property of resident wards.

Hlstor:r.-§2. ch. 1554. 1866; RS 2110; GS 2631; RGS 3993 CGL 5915; am. l 1. ch. 22750, 1945. '

7 44.27 Who may be appointed guardian of a resident incompetent.-

(!) RESIDENT.-(a) Any resident of Florida who is sui

juris is qualified to act as guardian of the person or of the property, or of both, of an incompetent; provided, however, that no person who has been convicted of a felony, or who, from sickness, intemperance or want of understanding, is incompetent to discharge the duties of guardian, shall be appointed to act as guardian. A married woman may act as guardian in Florida without the consent of her husband. The guardian of the person and the guardian of the property may be the same person, or they may be different persons.

(b) No circuit judge shall act as guardian after this law becomes effective, except in cases in which he has qualified prior to his election as circuit judge and in cases in which he is related to his ward by blood, marriage or adoption. When any circuit judge is a guardian, he shall make his settlement as such guardian with a judge of the circuit court of the county where he resides in the same manner as other guardians are required by this law to make their settlements with the circuit judge.

(2) NONRESIDENT. - Any nonresident who is sui juris may be appointed guardian of the person but not of the property of a resident incompetent; provided, such nonresident complies with the laws of Florida relating to guardianship of incompetents.

(3) TRUST COMPANY OR NATIONAL

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BANK.-A trust company incorporated under the laws of Florida or a national banking association authorized and qualified to exercise fiduciary powers in Florida may act as guardian of the property of any incompetent.

History.- §! , ch. 1554, 1866; RS 2111 ; GS 2632; RGS 3994; CGL 5916; §I , ch. 22750, 1945; §30, ch . 73-334.

744.28 Pleadings.- The pleadings before the circuit judge in guardianship matters shall be in writing and shall be signed by the pleader or his attorney. All technical forms of pleading are abolished in guardianship matters. No defect of form shall impair substantial rights ; and no defect in the statement of jurisdictional facts actually existing shall render void any proceedings. The pleadings and procedure with reference thereto shall be as nearly as possible the same as the pleadings and procedure under the probate law, as specified in §732.08.

History.- §!, ch. 9285, 1923; CGL 5933; §1, ch. 22750, 1945; §30, ch. 73-334.

744.29 Notice and service.-(1) Whenever a notice or citation is re

person in whose care and custody such incompetent may be.

(5) The return of service in every case shall state the date when the notice or citation was received by the person making the return, the date it was served, the place of service, the name of the person served and the manner of service. Returns shall be amendable so as to speak the truth, and when amended, shall be effective as of the date of the original return.

( 6 ) Service of notice or citation may be waived in writing by any interested person who is sui juris.

(7) If any person upon whom notice or citation is served fails to respond within the time prescribed in the notice or citation or within such time as the circuit judge, under exceptional circumstances, may allow, then the matter shall proceed ex parte as to such person, and judgment may be entered in accordance with the right and justice of the case.

History.-§! , ch . 4034, 1891; GS 2633; RGS 3995; CGL 5917; §1 , ch. 22750, 1945; §30, ch . 73-334.

quired to be published in a newspaper by any of 744.30 Petition for appointment of guardian. the provisions of this law, unless otherwise -Every petition for the appointment of a specified by law, publication shall be once a guardian shall be sworn to by the petitioner, week for four weeks in a newspaper authorized his agent or his attorney, and shall be filed in to publish legal notices in the county of the the probate court having jurisdiction. The guardianship, four publications being suffici- petition shall contain statements, to the best ent. If no newspaper is published in the county of petitioner's knowledge and belief, showing of the guardianship, then such notice may be the name, age, residence and post-office address published as aforesaid in a newspaper author- of the alleged incompetent, the nature of his ized to publish legal notices in any adjoining incapacity, the approximate value and decounty. In lieu of publication in a newspaper scription of his property, the residence and in an adjoining county, such notice or citation post-office address of the petitioner, the names may be by posting at not fewer than three pub- and addresses of the persons most closely relic places in the county of the guardianship, lated to the incompetent, or averments showing one of which shall be at the courthouse, such that reasonable search has been made and that other places to be prescribed by the circuit judge. such information cannot be ascertained without

(2) Proof of publication or of posting shall delay which would adversely affect the incom-be by affidavit, and such proof shall be filed in petent named in the petition, or his property. the circuit court. Dlstory.-§2. ch. 4034, 1891 ; os 2634 ; ROS 3996; COL 5918;

(3) Whenever notice or citation is required am. § 1• ch. 22750• 1945.

by any of the provisions of this law and the 744.31 Petition for appointment of guardian manner and duration of such notice or citation tbr a person mentally or physically incompetent. is not specified, such notice or citation may be -'-No guardian of the person or of the property, in such manner and for such length of time be- or both of a person alleged to be mentally or fore the hearing as the circuit judge in his dis- physicahy incompetent shall be appointed until cretion may deem proper. after such person has been adjudicated to be in-

(4) Service may be made within the state competent in proceedings instituted for that purin the manner prescribed by law for the serv- pose, as follows: ice of any summons by any official of this (1) PETITION FOR EXAMINATION.state, or service may be made by any person by When a person is believed to be incompetent by delivery of a true copy of a notice or citation reason of mental illness, sickness, excessive use to the person to be served. The return of service of alcohol or drugs, or other mental or physical when made by a person other than an officer shall be by affidavit. Serving of notice or cita- condition, so that he is incapable of caring for tion may be made outside the state by any himself or managing his property or is likely to official authorized to make service ·in the dissipate or lose his property or inflict harm on state, territory or country where the person himself or others, application by written petito be served resides or can be found, or such tion, under oath, may be made to the circuit service may be made by any person; provided, judge of the county where the alleged incomthat if service is made by a person other than petent resides or is found for a judicial inquiry an officer, the return shall be made by affidavit. into 'the mental or physical condition, or both, Whenever it is necessary to make service upon of the alleged incompetent. an incompetent, the notice or citation shall be (2) WHO MAY FILE PETITION.-The served upon such incompetent and also on the petition may be filed by:

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(a) The mother, father, brother, sister, husband, wife, · adult child, or next of kin of the alleged incompetent;

(b) Any three citizens of the state; (c) Any person who requests the examina

tion of himself, provided he presents a certificate of a physician authorized to practice medicine in this state certifying the reason that he believes the petitioner to be incompetent; or

(d) The medical director of any state correctional institution, with respect to any person at said institution.

(3) NECESSARY ALLEGATIONS.-Every petition shall allege the name, approximate age, address if known, the nature of the disability of the alleged incompetent, and names of all the members of his family with their addresses, if known to petitioner, and shall pray for an examination of the alleged incompetent and for an order adjudging such person to be incompetent.

(4) NOTICE; HEARING.-Whenever a petition is filed, the circuit judge shall set a date for a hearing on the petition. Notice shall be given in writing to the alleged incompetent and to one or more members of his family, if any other than petitioner are known to the circuit judge to be residing in the county, notifying them that application has been made for an inquiry into either the mental or physical condition, or both, of the alleged incompetent and that a hearing on such application will be held at the time and place specified in the notice. The hearings shall be conducted in as informal a manner as may be consistent with orderly procedure and in a physical setting not likely to have a harmful effect on the mental health of the alleged incompetent. An opportunity to be represented by counsel shall be afforded to every alleged incompetent, and if he cannot afford an attorney, the court shall appoint one.

(5) EXAMINING COMMITTEE.-(a) The judge shall appoint an examining

committee consisting of one responsible citizen and two practicing physicians who shall not be permanently associated with each other in the practice of medicine. The citizen appointed shall not be associated with or employed by either physician. The examining committee, within a reasonable time after notice of their appointment, shall proceed to examine the person to ascertain his mental and physical condition. No petitioner shall serve as a member of the examining committee; however, the provisions of this section shall not apply in those counties where there are not more than four resident practicing physicians and shall not apply to staff physicians in facilities of the division of mental health.

(b) If the examining committee considers the person under examination to be incompetent, it shall determine his age, whether his condition is acute or chronic, and the apparent cause of the condition. The report shall cover the findings of the committee, be signed by each member of the examining committee, and be transmitted

immediately to the judge. If the report of the examiners is that the alleged incompetent is not mentally incompetent, the court shall terminate the proceedings .and dismiss the application.

(c) The committee shall be entitled to reasonable fees to be determined by the court and paid from the general fund of the county in which the patient was domiciled at the time the petition was filed.

(6) NOTICE; PROCESS; TESTIMONY.Except as otherwise specified, notice of hearing, the service of notice or process, the taking of depositions, the summoning of witnesses, and the taking of testimony shall be governed by rules pertaining to such matters in the general guardianship law.

(7) JUDGMENT.-If . the judge, from the report of the examining committee and the hearing, finds that the person under investigation is incompetent, mentally or physically or both, his judgment shall set forth the nature and extent of the incompetency. If he finds that such person is not incompetent, he shall dismiss the cause and discharge said person.

(8) EFFECT OF JUDGMENT.-After a judgment adjudicating a person to be mentally or physically incompetent is filed in the office of the circuit judge, such person shall be presumed to be incapable, for the duration of such incompetency, of managing his own affairs or of making any gift, contract, or instrument in writing which is binding on him or his estate. The filing of said judgment shall be notice of such incapacity.

(9) GUARDIAN APPOINTED.-After an adjudication of incompetency, a petition may be filed for the appointment of a guardian of either the person or the property, or both, of such person, and the general guardianship laws of this state shall apply to the petition, to all subsequent proceedings, and to any guardian appointed by the court.

(10) RESTORATION TO COMPETENCY; PROCEDURE.-

(a) Certificate.-When a person has been declared incompetent and is hospitalized at a treatment facility and becomes capable of managing his own affairs, he may be issued a certificate of competency signed by three members of the medical staff of the treatment facility. The certificate shall be attested by the administrator of the treatment facility, shall be admissible in evidence in any hearing for the restoration to competency of such person, and shall be prima facie proof that such person is competent. A certificate of competency may also be issued at a designated receiving facility upon the recommendation of two members of the medical staff and a third responsible person. The certificate shall be attested by the administrator of the receiving facility, shall be admissible in evidence in any hearing for the restoration to competency of such person, and shall be prima facie proof that such person is competent.

(b) Automatic restoration.-Upon issuance

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of a certificate of competency, the original shall be sent to the circuit judge where the person was originally found incompetent. Upon receipt of the certificate, it shall be docketed and filed, and the circuit judge shall notify the guardian of the incompetent person and the state attorney of the judicial circuit in the county of the person's residence. The state attorney shall represent the state and shall file any ·objections he might have to the restoration to competency of the person named in the certificate within twenty days of his receiving notice. However, the state attorney may, prior to the expiration of the twenty-day period, file a waiver of objection. If no objections are filed within the time allowed or if a waiver of objection is filed , the person named in the certificate shall automatically be restored to competency on the basis of the certificate, and an order to that effect shall be entered by the circuit judge. In the event an objection to restoration is made by the state attorney, a copy of the objections shall be served by registered or certified mail upon the person named in the certificate, his next of kin, or legal guardian, together with a notice that a petition for restoration of competency may be filed on behalf of the incompetent person.

(c) Attorneys.-In case of indigency, the court may appoint an attorney to represent the incompetent. The attorney shall be entitled to a reasonable fee to be allowed by the circuit judge and paid by the governing body of the county from the general fund.

(d) Petition.-Any relative, spouse, or friend of an incompetent person may apply by petition to the circuit judge of the county where the person was adjudged incompetent, or where such person may be living on the date of the application, to determine whether he is still incompetent and unable to manage his affairs.

1. The petition shall be under oath and allege facts upon which to base an order restoring the person to a status of competency. The proceeding shall be ex parte, but a copy of the petition shall be served upon the state attorney of the judicial circuit of the county in which the cause is brought, and he shall represent the state. In the event a guardian has been appointed for the person or property of the incompetent person, service of a copy of the petition for restoration shall be made upon the guardian. Proof of service of copies of the notice, certificates, and petition shall be by affidavit or acknowledgment and filed with the court.

2. Upon filing of the petition and reasonable notice to the state attorney and guardian of the incompetent, the judge shall hold a hearing to determine the person's competency.

3. If it appears to the court that the incompetent is of sound mind and is capable of managing his own affairs, the judge shall issue an order to the following effect:

a. That the person is of sound mind and capable of managing his own affairs.

b. That the person shall be immediately restored to his personal liberty.

c. That the guardian of such person shall, within thirty days or such time as the judge may fix make full settlement with the person so resto'red of all his property under penalty of contempt of court.

4. The judge shall issue a certified copy of the order and forward it to the county where the incompetency proceeding was held to be filed in the original proceedings of record in the county.

5. The petitioner shall be entitled to an appeal to the district court of appeal as prescribed by the Florida appellate rules.

(e) Removal of physical incompetency.-!. After a judgment of physical incompe

tency ha~ been entered, if the person so adjudged shall become able to care for his property, he or one or more of his family or next of kin may petition the court having jurisdiction of his case, setting forth the recovery of such person and the reasons why he should be restored to his former status.

2. The judge shall set a time for the hearing, and reasonable notice of the hearing shall be given to the incompetent person, if he is not the petitioner, and to one or more members of his family, or, if he has no family known to the judge, notice shall be given as the judge may direct.

3. After the hearing, if the judge finds that the person has regained ability to care for his property, an order to that effect shall be entered, and such person, so far as his person and property are concerned, shall occupy the same status as though he had never been adjudicated physically incompetent. If a guardian has been appointed for him during such physical incompetency, the guardian shall immediately render his accounting to the court having jurisdiction and apply for his discharge as provided by the general guardianship laws of this state.

History.-§3, ch. 4034, 1891; GS 2635; RG;. 3997; CGL 5919; §1, ch. 22750, 1945; §12, ch. 71-131; §11, ch. 73-133; §30, ch. 73-334.

744.315 Appointment of guardian of estate of physically incapacitated person without adjudication of incompetency.-The circuit judge having proper venue shall, without adjudication of incompetency, appoint a guardian of the estate of a resident or nonresident person who, though mentally competent, is incapable of the care, custody and management of his estate by reason of age or physical infirmity and who shall have voluntarily petitioned the circuit court for such an appointment. Any guardian appointed under this section shall have the same duties and responsibilities as are provided by law as to guardians of property generally.

History.-§1 , ch. 67-12; §30, ch. 73-334.

744.32 Subpoenas and depositions.- The circuit judge, upon application of any party, shall issue subpoenas and subpoenas duces tecum for the appearance of witnesses and the production

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of documents at any hearing. Depositions of witnesses in guardianship proceedings shall be taken, as nearly as possible, in the same manner as depositions are authorized to be taken under the probate law of Florida.

History.- §!, ch . 6943, 1915; RGS 3998; CGL 5920; §1, ch. 22750, 1945; §30, ch . 73-334.

744.33 Notice of hearing on petition for appointment of guardian for an incompetent.-

(!) When the petition alleges that the nature of the incapacity is minority, if the petitioner is not the parent and if the parents of the minor are living, reasonable notice of the hearing shall be given to them. When a parent applies for appointment as guardian of his minor child, no notice is necessary unless the other parent is living and refuses to consent to 8Uch appointment.

(2) When the petition for the appointment of a guardian alleges that the person named therein as respondent has been adjudicated to be physically or mentally incompetent, or both, the circuit judge shall hear the petition without notice if it is filed at the conclusion of the hearing in which such person was so adjudicated. If it is filed on a later date, then reasonable notice of the hearing shall be served on the respondent and also on one or more members of his family or relatives, if any can be found within the jurisdiction of the circuit judge, or if no such person can be found within the jurisdiction, then notice shall be given by such publication or otherwise as the circuit judge may think proper.

History.- §2, ch . 6943, 1915; RGS 3999; CGL 5921; §1, ch. 22750, 1945; §30, ch . 73-334.

7 44.34 Order of appointment.-( I) Upon the day fixed for the hearing on

the petition for the appointment of a guardian, the circuit judge shall hear the evidence on the question of the competency of the person who is the subject of the hearing. An order of the circuit judge previously adjudicating a person to be incompetent shall constitute conclusive proof of such incompetency until reversed or set aside or until the competency of such person has been restored as provided by law. The circuit judge may hear testimony on the question as to who is entitled to preference in the appointment as guardian. Any person interested may intervene in such proceedings with leave of the circuit judge. If the circuit judge, -on such hearing, is satisfied that the person who is the subject of the hearing is incompetent, he shall appoint a guardian of the person or of the property, or of both, as he may deem necessary. The order shall state the specific nature of the incapacity found to be existing. The order of appointment shall also specify the amount of the bond to be given by the guardian.

(2) The testimony adduced at the hearing may be transcribed and filed at the request of any of the parties or upon the direction of the circuit judge.

History.- §3, ch . 6943, 1915; RGS 4000; CGL 5922; §1, ch . 22750, 1945; §30, ch . 73-334.

744.35 Preference in appointment.-In the appointment of a guardian the circuit judge shall give due consideration to the appointment of one of the next of kin of said incompetent who is a fit and proper person and qualified to act, and likewise to any person designated as guardian in any will in which the incompetent is a beneficiary. The circuit judge may in his discretion appoint any person who is qualified to act as guardian, whether related to the ward or not.

Histor y .- §4, ch . 6943, 1915; RGS 4001 ; CGL 5923; §1, ch . 22750, 1945; §30, ch . 73-334. cf.- §744.14 Testamen tary guardian.

744.36 Oath of guardian.-Every guardian, before exercising his authority as guardian, shall take oath that he will faithfully perform his duties as guardian and that he will render true accounts whenever required according to law, which oath may be administered by any officer authorized to administer oaths under the laws of this state and shall be filed in the circuit court. This oath is not jurisdictional.

Histor y.- §6, ch . 6943, 1915; RGS 4003; CGL 5925; §1, ch . 22750, 1945; §30, ch . 73-334.

744.37 Oaths and affidavits. - Oaths, affirmations, verifications and affidavits required by law in guardianship proceedings may be made, either within or without the state, before any officer authorized by the laws of this state to administer oaths.

Hlstory .- §5, ch . 6943, 1915 ; RGS 4002 ; COL 5924 ; §1, ch .. 22750, 1845.

744.38 Bond of guardian.-(1) Every person appointed a guardian of

the property of a ward in Florida, before entering on his duties as guardian, shall be required by the circuit judge to execute and file in his office a bond with two or more sufficient sureties to be approved by the circuit judge, or an authorized surety company as surety. Such bond shall be payable to the governor of the state and his successors in office, conditioned to perform faithfully all duties as such guardian according to law. In form the bond must be joint and several.

(2) All bonds required in guardianship proceedings, whether original bonds or additional bonds, shall be filed in the circuit court having jurisdiction and shall be recorded therein.

(3) The requirements of this· section shall not be applicable to banks and trust companies authorized by law to act as guardians.

( 4) Signatures of principals and sureties other than surety companies on a guardian's bond shall be witnessed by two competent witnesses, but the failure to have such a signature witnessed shall not affect the validity of the bond.

(5) When the sureties on a bond are persons (and not a surety company), the guardian shall be required to file with his annual returns

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proof satisfactory to the circuit judge that the sureties are alive and solvent.

(6) The penal sum of a guardian's bond shall be fixed by the circuit judge in his dis· cretion, and it must be in an amount not less than the full amount of the cash on hand and on deposit belonging to the ward, plus the value of the notes and bonds owned by the ward which are payable to bearer.

(7) The circuit judge, for good cause shown, may reduce the amount of bond of any guardian.

History.- §8, ch . 6943, 1915; RGS 4005; CGL 5927; §1, ch. 22750, 1945; §1 , ch . 29717, 1955; §30, ch. 73-334.

744.39 Bond of surety company.-Any surety company authorized to do business in this state may become surety upon the bond of a guardian; and in such case, there need be only one surety on such bond.

Blstory.-17, ch. 69U, 1915; R08 400fo; COL 5928; am. 17, eh. 22000, 1943: am. 11, eh. 22750, 1945.

744.40 Letters of guardianship.-Letters of guardianship shall be issued to the guardian of the person or of the property or of both, but failure to issue such letters shall not affect the validity of the order appointing the guardian.

Hlstory.-§9, ch . 6943 , 1915 ; RGS 4006; COL 5928; §1, ch. 22750, 1945 ; §1, ch. 65·285.

744.41 Insufficiency of bond.-If any person files with the circuit court having jurisdiction

. a petit~on alleging that the sureties on any bond given by a guardian are insolvent or insufficient or that the bond is insufficient in amount and substantiates the same with evi· den_ce . satisfactory to the circuit judge, after notice to the guardian and his sureties and hearing on the petition, said judge may enter an order requiring additional sureties or an additional bond, as the circumstances require. If the ~~rcuit judge has such knowledge, though no petitwn has been filed, he may, after notice, enter such order sua sponte as the circum· stances require.

History.-§10, ch. 6943, 1915; RGS 4UU7; CGL 5n9; §1, ch. 22750, 1945; §30, ch . ?a-334.

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

Blstory.-Ui, eh. 6943, 1915; RQS 4008; COL 5930; am. U, eh. 22750, 1945.

744.43 Liability of surety.-No surety for any guardian shall be charged beyond the assets of the ward's property because of any omission or mistake in pleading or because of the false pleading of such guardian.

Rlstory.-112, ch. 6943, 1915 ; ROB 4009; COL 5931 ; 'lm. U. ch. 22750. 1945.

744.44 Suit upon bond.-A bond given by any guardian, upon the breach thereof, may be

from time to time put in suit and prosecuted by or on behalf of the person damaged by such breach, until the whole penalty of such bond has been recovered. The circuit judge shall deliver to any person, on request and payment of his legal fees for the same, a true copy of any bond given by any- guardian, and such copy duly certified,. with the seal of the court affixed, shall be prima facie proof of the bond.

History.- §13, ch . 6943, 1915; RGS 4010; CGL 5932; §1, ch . 22750, 1945; §30, ch . 73-334. cf.- §746.10 Suit on removed guardian's bond.

744.45 Release of surety. - The surety or sureties, or the personal representative of any surety or sureties, on the bond of any guardian shall be released by the same procedure and on the same conditions as provided in §732.68, for the release of a surety in probate matters.

Hlstory.-§1, ch. 22750, 1945.

7 44.46 Resident agent.-(1) Every foreign guardian who seeks to

sell, lease, manage, control or mortgage any of his ward's property, real or personal, in the state, shall have his residence and post-office address recorded in the circuit court and desig· nate in writing, which shall likewise be filed, some resident of the county where the guardian· ship property is located as his agent or attorney for the service of process, whose name, residence and post-office address shall likewise be record· ed.

(2) A resident guardian removing his resi· dence from the state shall also comply with the foregoing requirements.

(3) The aforesaid designation, in whatever form it may be, shall be taken to constitute the consent of the person so designating that service of any process upon the designated agent or attorney shall be sufficient to bind the person so designating in · any suit or action against such person either in his representative capacity or personally; provided, only, that such personal action must have accrued in the administration of the guardianship estate.

History. - §! , ch . 22750, 1945; §30, ch. 73-334.

744.47 Costs.-In all guardianship proceedings costs may be awarded in the sound judicial discretion of the circuit judge, and shall ordinarily abide the result of each particular proceeding . unless, under the special circumstances of a particular case, it would be unjust that the losing party pay the costs. When the costs are to be paid out of the estate of the ward, ·the circuit judge may, in his discretion, direct from what portion of the estate such costs shall be paid.

History.- §!, ch . 22750, 1945; §13, ch. 59-1; §30, ch . 73-334.

744.48 Duties of guardian of the person.It is the duty of the guardian of the person to take care of the person of the ward, to treat him humanely, and if he is a minor, to see that he is properly educated and that he has the opportunity to learn a trade, occupation or profession.

Rlstory.-§1, ch. 22750, 1945.

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744.481 Periodic examination of ward.Unless, after due notice and hearing upon petition of the guardian, the court having jurisdiction specifically enters an order declaring that it is not necessary, the guardian of the person of a person adjudged physically or mentally incompetent sha:H cause such person to be examined annually by a licensed physician as to the mental and physical condition of the ward except in those cases in which the ward is maintained in an institution operated by the state.

History.-§! , ch. 67-155.

744.482 Duty to file report.-On or before April 1 of each year, the guardian shall file reports with the court having jurisdiction of the ward, which reports shall designate and include, among other things:

(1) The name and address of all places where the ward was maintained during the preceding year;

(2) The length of stay of the ward at such . places;

(3) A resume of professional medical treatment, if any was given to the ward during the preceding year;

(4) A brief resume of the guardian's activity and visits to check on the progress and condition of the ward;

(5) An evaluation by the guardian as to whether or not the ward is competent to such an extent that he should be restored; and

- · - (6) A written report and evaluation from the examining physician including, among other things, recommendations for treatment and prognosis and indications for restoration.

Hlstory.-§1, ch. 67-155 .

744.483 Expense of examinations; insufficient assets.-The guardian shall be authorized to expend up to fifty dollars from the ward's estate, without prior court approval, for the professional examinations called for in §7 44.481. In each instance where the cost of the examination shall or may exceed fifty dollars, the guardian shall procure prior court authorization for such expenditures. If the ward's estate shall have insufficient assets to pay the expense of the examinations, the guardian shall report such insufficiency and procure an order of court permitting him to apply for financial relief from state or county funds, as the case may be, and and as provided by laws respecting the care of indigent persons.

Hlstory.-§1, ch. 67-155.

744.484 Relief to be granted.-lf it shall appear from the guardian's report and the medical report filed as required in §744.482 that the condition of the ward requires further examination; that any change of care, maintenance or treatment is needed; that the ward is qualified for restoration; or that his condition or maintenance requires the performance or doing of any other thing for the best inter-

matters, including restoration, and the court shall make such order, with or without notice to interested persons, in its discretion, as may be just and proper in the circumstances.

Hlstory.-§1, ch. 67-155.

7 44.49 Powers of guardian of the person.The guardian of the person shall be entitled to the custody of the ward. Such guardian shall not have power to bind the ward or his property or to represent him in any legal proceedings pertaining to his property.

Rlstory.-§1, ch. 22750, 1945.

744.50 Payments to guardian of the person. -If the guardian of the person of the ward is other than the guardian of the property, either guardian may apply by petition to the circuit judge, upon reasonable notice to the other, for an order directing the guardian of the property to pay to the guardian of the person an amount weekly, monthly, quarterly, semiannually, annually, or as the circuit judge may direct, to be expended in the support, care, maintenance and education of the ward, which amount may be increased or decreased from time to time in the discretion of the circuit judge. The decision upon such petition shall be in the discretion of the circuit judge. If such order is made, the receipt of the guardian of the person for payments made in pursuance thereof shall be a sufficient acquittance to the guardian of the property, and he shall not be bound to see to the application thereof. History.-~1 . ch. 22750, 1945; §30, ch. 73-334.

744.51 Duties of guardian of the property.lt is the duty of the guardian of the property of the ward to protect and preserve it, to invest it prudently, to apply it as provided in §744.64, to account for it faithfully, to perform all other duties required of him by law, and at the termination of the guardianship, to deliver the assets of the ward to the person or persons lawfully entitled thereto.

Histor:r.-11, ch. 22750, 1045.

7 44.52 Guardian to take possession of all property.-The guardian of the property shall take possession of all of the ward's property, real and personal, and of the rents, income, issues and profits therefrom, whether accruing before or after his appointment, and of the proceeds arising from the sale, lease or mortgage of the same or any part thereof. All such property and the rents, income, issues and profits therefrom shall be assets in the hands of the guardian for the payment of debts, taxes, claims, charges and expenses of the guardianship, and for the care, support, maintenance and education of the ward or his dependents, as may be authorized or approved by the circuit judge.

History.-§1, ch. 22750, 1945; §30, ch. 73-334.

est of ward, it shall be the duty of the guar- 744.53 Duty to file inventory.-Within sixty dian to petition the court for such needed days after his appointment the guardian of the

2014


property shall file with the circuit judge a complete verified inventory of the real and personal estate which has come to his knowledge and of any cause of action on which his ward has a right to sue or on which he has the right to sue in behalf of his ward. Said inventory shall be recorded in the circuit court having jurisdiction.

History.-§1, ch. 22750, 1945; §30, ch. 73-334.

744.54 A_ppointment and quaiification of appraisers.-Whenever the circuit judge deems it necessary, he may appoint two persons of discretion not related to the ward or to the guardian and not interested in the property, authorizing them to appraise the property of the warc.l that may come to their knowledge. The form of the warrant of appraisal shall be. substantially that prescribed for the appointment of appraisers of the estates of decedents. On the death or on the neglect or refusal to act of an appraiser, another may be appointed by the circuit judge to act in his place. Before making the aperaisal, the appraisers shall make and subscribe an oath or affirmation before any person authorized to administer oaths, substantially in the following form:

"We solemnly swear or affirm that without partiality we will truly appraise the estate of the ward (giving his name) so far as it may come to our knowledge, and that in all respects we will perform our duties as appraisers to the best of our ability."

History.-§1, ch. 22750, 1945; §30, ch. 73-334.

744.55 Form and return of appraisaL-The appraisers shall list every article or parcel of property owned by the ward with its value in dollars and cents. When the appraisal is completed, but in any event within sixty days from the date of the warrant, unless the time is extended by the circuit judge, the appraisers shall certify it under their hands and seals and shall deliver it to the circuit judge.

History.-§1, ch. 22750, 1945; §30, ch. 73·334.

7 44.56 Compensation of appraisers. - Each appraiser shall be entitled to receive for his services reasonable compensation to be fixed by the circuit judge after reasonable notice to the guardian of the property. Such compensation shall be paid by the guardian of the property from the estate of the ward.

History .-§1, ch. 22750, 1945; §30, ch. 73·334.

744.57 When appraisal unnecessary.-If the whole estate of the ward consists of money, no appraisal thereof shall be necessary. The circuit judge may dispense with the appraisal of any estate whenever he deems an appraisement unnecessary.

History.-§1 , ch. 22750, 1945; §30, ch. 73·334.

7 44.58 Inventory or appraisal as evidence.An inventory or appraisal may be used as evidence in any suit, by . or against the guardian of

the property, but it shall not be conclusive, for or against him, as to the real value of the estate, or that it was sold bona fide for more or less than the appraised amount.

Blstory.-fl, ch. 22750, 1945.

744.59 Subsequently discovered or acquired property.-If the guardian learns of any property which is not included in the previous inventories or appraisals, such property shall be inventoried in like manner within sixty days after the discovery or acquisition thereof. Upon any subsequent appraisals the same or different persons may be appointed as appraisers.

Hlstory.-§1, ch. 22750, 1&45.

744.60 Settlement of claims.-(1) Whenever a settlement of any claim by or

against the guardian or the ward, whether arising as a result of personal injury or otherwise, and whether arising before or after appointment of a guardian, is proposed, but before an action is begun, a circuit judge, on petition by the guardian stating the facts of the claim, question, or dispute and the proposed settlement, and on such evidence, if any, as may be introduced, if satisfied that the settlement will be for the best interest of the ward, may enter an order authorizing the settlement. The order shall operate to relieve the guardian from any further responsibility or liability in connection with the claim or dispute when the settlement has been made in accordance with the order. The order authorizing the settlement may also determine whether an additional bond is required and, if it is required, shall fix the amount of it, but no bond shall be required when the guardian is a bank or trust company. In making any settlement under court order as provided in this section, the guardian is authorized to execute any instrument that may be necessary to effect the settlement. The execution of the instrument shall operate as a complete release to the person, firm, or corporation making the settlement.

(2) In the same manner as provided in the preceding subsection, the natural guardians or guardian of a minor may settle any claim by or on behalf of a minor that exceeds two thousand five hundred dollars without bond. A bond may be required when the amount of settlement exceeds two thousand five hundred dollars, but no legal guardianship shall be required unless the amount exceeds ten thousand dollars.

(3)(a) No settlement after an action has been commenced by or on behalf of a minor or other incompetent shall be effective unless approved by the court having jurisdiction of the action.

(b) In the event of settlement or judgment in favor of the minor or other incompetent, the court may authorize the natural guardians or guardian, or a guardian appointed by a court of competent jurisdiction, to collect the amount of the settlement or judgment and to execute a release or satisfaction. When the amount of

2015


settlement or judgment exceeds ten thousand dollars and no guardian has been appointed, the court may require the filing of a bond, or the appointment of a guardian.

(c) A judgment in favor of a minor or incompetent entered after trial may be collected and satisfied by a guardian appointed by a court of competent jurisdiction without court approval.

(4) The bond authorized under this section shall be conditioned to disburse properly the proceeds of the settlement for the benefit of the minor or incompetent.

History.-§!, ch. 22750, 1945; §2, ch. 72·258; §30, ch. 73-334.

7 44.61 Suits by and against guardian or ward.-Ail suits, actions or proceedings to establish the validity and amount of claims against the estate of the ward shall be brought jointly against the guardian and the ward, and in any such suit no guardian ad litem need be appointed. Suits to enforce or to declare rights of the ward shall be brought jointly in the name of the guardian and the ward. If suit is brought by the guardian against the ward or vice versa or if the interest of the guardian is adverse to that of his ward, then a guardian ad litem shall be appointed by the court to represent the ward in that particular litigation. Judgments in favor of the ward shall, upon termination of guardianship, become the property of the ward without the necessity for any assignment by the guardian or receipt by the ward. The guardian may receive payment and satisfy any judgment in behalf of the ward without any joinder of the ward.

matorJ.-f1, ch. 22750, 19,5.

7 44.62 Suspension of statutes of limitations in favor of guardian.-If a person entitled to bring an action is declared incompetent before the expiration of the time limited for the commencement thereof and the cause of the action survives, the action may be commenced by the guardian after such expiration and within twelve months from the date of the order appointing him.

Hlotory.-fl, cb. 22750, 1U5.

7 44.63 Suspension of statutes of limitations in favor of claimants. - If a person against whom a cause of action exists is declared incompetent before the expiration of the time limited for commencement thereof and the cause of action survives, the action may be commenced against the guardian after such expiration and within twelve months from the date of the order appointing him.

HlstorJ.-§ 1, ch. 22750, 1945.

744.64 Application of income of property of ward.-

(1) The circuit judge may authorize the guardian of the property to apply the income of the ward's property, first to his care, support, education and maintenance, and then any surplus, as far as the circuit judge deems necessary, for the care, support, education, main-

tenance, cost of fin a l illness and cost of funeral and burial or cremation of the spouse or dependents, if any, of such ward. If the income is not sufficent for such purposes, the circuit judge may authorize the expenditure of such portion of the principal as he deems necessary, from time to time, for such purposes.

(2) The word "dependents," as used in subsection (1), in addition to including those persons who are legal dependents of a ward under existing law, may, in the discretion of the circuit judge, based upon the showing of an existing need therefor and an ability of the estate of the ward to pay for, provide, or furnish same without unreasonably jeopardizing the care, support and maintenance of the ward, be deemed to include such person or persons who, in the opinion of the circuit judge, such ward is morally or equitably obligated to aid, assist, maintain or care for, including, but not limited to, such persons as the indigent husband of the ward.

(3) If the ward is a minor and his parents are able to care for him and to support, maintain and educate him, the guardian of the property of such minor shall not be required so to use his ward's property unless directed or authorized to do so by the circuit judge.

History.-§1 , ch. 22750, 1945; §1, ch. 67·82; §30, ch. 73-334.

744.65 Petition for support of ward's de-pendents.-Any person lawfully entitled to support from the ward may apply by petition, personally, or if he is incompetent, by his guardian to the circuit judge appointing the guardian fo~ an order directin~ the guardian of the ward's property to contribute to the support of the applicant from the property of the ward in his possession or from the income therefrom. The circuit judge may enter an order for the suitable support and education of the applicant out of the ward's 'property or the income thereof. Such order may be appealed by the guardian or the applicant, or by the ward if the guardianship is terminated before the expiration of the time for taking an appeal. The granting or denial of such order for support, or the expira-tion of time for appeal therefrom, shall not preclude a further application for increase, decrease, modification or termination of such allowance for support by either the applicant or the guardian. Such order for support shall be valid as to payments made in pursuance thereto, but no valid payments can be made thereunder after the termination of the guardianship. The receipt of the applicant shall be a sufficient acquittance to the guardian for any payments made in pursuance of such order for support. If the property of the ward is derived in whole or in part from payments of compensation, adjusted compensation, pension, insurance or other benefits made directly to the guardian by the veterans' administration, notice of the application for support shall be given by the applicant to the chief attorney for the division of veterans' affairs of the department of community affairs in this state at least ten days before the hearing on the application.

2016


History.-§! , ch . 22750, 1945; §§18, 35, ch . 69·106; §30, ch . 73· 334.

7 44.66 Continuance of business. - In all cases where it is necessary, in the opinion of the circuit judge, to continue the business of a ward, such business may be continued by the guardian of the property under the superv.ision of the circuit judge, and according to the ;rules and regulations specified in §733.08 under which a personal representative is allowed to continue the business of a decedent.

History.-§! , ch . 22750, 1945; §30, ch. 73-334.

744.67 Cultivation of Iands.-A guardian of the property may cultivate his ward's lands, hire labor, and make contracts for the purpose of such cultivation; provided that the circuit judge first authorizes the cultivation of such land.

History.- §! , ch. 22750, 1945; §30, ch. 73-334.

744.68 Burial expenses of ward.-Upon the death of his ward, the guardian may pay from the ward's estate, subject to the approval of the circuit judge, reasonable funeral expenses for the ward in an amount not to exceed $1,000.

History.- §! , ch . 67-391; §1 , ch . 73-94; §30, ch. 73-334.

744.69 Legislative intent.-(1) It is the finding and intent of the legis

lature that some disabled persons are wholly or substantially self-supporting, and, although such persons may be in a position to manage themselves or their earnings, they may not be able to manage other assets, such as property received by way of gift or inheritance. Hence, guardianship should fit the particular needs of an individual. For some individuals, comprehensive guardianship will be required. However, as far as possible, disabled persons must be allowed freedom, even freedom to make their own mistakes. Limited guardianship for adults, with the scope of the guardianship specified in the judicial order, is to be preferred. Plenary guardianship should be reserved for those who are judicially determined to be incapable of undertaking routine day-to-day decisions and who are found to be incapable of basic self-management. A guardianship relationship should be subject to revision as the needs of the individual change. It is the intent of the legislature that in all cases, guardianship should be designed and revised to meet the needs of the individual and to fully utilize his abilities and capabilities.

(2) To the extent that the context thereof permits, the provisions of the Florida guardianship law, chapters 744, 745, and 746 apply to all proceedings under §§744.69-744.73.

History.-§§! , 6, ch . 73-222.

744.70 Definitions.-As used in §§744.69-744.73:

(1) "Guardian" means one to whom the law

has entrusted the custody and control of the person or property of an incompetent person.

(2) "Incompetent person" means a person who, by reason of minority, mental illness, mental retardation, sickness, senility, excessive use of alcohol or drugs, or other mental or physical condition is incapable of caring for himself or managing his property.

(3) "Minor" means a person under eighteen years of age whose disability has not been removed by marriage or otherwise according to law.

(4) "Ward" means an incompetent person for whom a guardian has been appointed.

(5) "Limited guardian" means a person to whom the law has entrusted only such property of an incompetent person as shall be received from other than the incompetent person's wages or earnings.

(6) "Standby guardian" means a person empowered to assume the duties of guardianship or limited guardianship upon the death or adjudication of incompetency of the last surviving natural or adoptive parent of an incompetent person.

(7) "Corporate guardian" means a nonprofit corporation organized and existing under the laws of Florida and having the corporate power to act as guardian.

(8) "Court" means the circuit court. History .-§2, ch . 73·222.

*744.71 Limited guardianship.-(!) When it appears to the satisfaction of

the court that an incompetent person is over the age of 18 years and wholly or substantially selfsupporting by means of his wages or earnings from employment, the court may appoint a limited guardian of the property for such person to receive, manage, disburse, and account for only such property of the incompetent person as shall be received from other than the incompetent person's wages or earnings.

(2) An incompetent person for whom a limited guardian of the property has been appointed shall have the right to receive and expend any and all wages and earnings of his employment. He shall also have the power to contract or otherwise legally bind himself for any sum of money not exceeding one month's wages and earnings from his employment or $300, whichever is greater.

(3) A limited guardian appointed pursuant to this section shall have the same duties and responsibilities as are otherwise provided by law for guardians of property generally.

History.-§3, ch. 73-222. *Note.-Effective October 1, 1973.

*744.72 Standby guardianship.-(!) Upon application or consent of both

parents, natural or adoptive, if living, or of the surviving parent, a standby guardian of the person or property of an incompetent person may be appointed by the court. The court may also, upon application or consent of such parents or

2017


survtvmg parent, appoint an alternate to such guardian, to act if the standby guardian shall renounce, die, or become incapacitated after the death of the last surviving parent of the incompetent person.

(2) Such standby guardian, or alternate in the event of such guardian's death or incapacity or his renunciation, shall without further proceedings be empowered to assume the duties of his office immediately upon the death or adjudication of incompetency of the last surviving natural or adoptive parent of the incompetent person, subject only to confirmation of his appointment by the court within sixty days following his assuming guardianship duties. If the incompetent person is over the age of 18 years, the court, before confirming the appointment of the standby guardian, shall conduct a hearing as provided in §744.31.

(3) Mter the appointment of a standby guardian, the court shall have and retain general jurisdiction over the incompetent person for whom such guardian shall have been appointed, to take of its own motion, or to entertain and adjudicate, such steps and proceedings relating to such standby guardianship as may be deemed necessary or proper for the welfare of the incompetent person. History.-~. ch. 73-222. •Note.-Effective October I , 1973.

*744.73 Corporate tcuardianship.-A nonprofit corporation orgamzed and existing under the laws of this state and having the corporate powers to act as guardian may be appointed guardian of the person or property of an incompetent person.

History .-§5, ch. 73-222. •Note.-Effective October I, 1973.

2018

Ch. 745 FLORIDA GUARDIANSHIP LAW, SECOND PART Ch. 745

CHAPTER 745

FLORIDA GUARDIANSHIP LAW, SECOND PART

745.01 Leases of ward's property. 7 45.011 Application of uniform principal and

income law. 745.02 Leases of oil, gas, or mineral rights. 745.03 Investments by guardian of the prop-

erty. 745.04 Encumbering property of ward. 7 45.05 Sale. 7 45.06 Petition for leave to sell. 745.07 Notice of hearing on petition to sell. 745.08 Hearing. 7 45.09 Order of sale. 745.10 Notice of sale. 745.11 Sale upon terms. 745.12 Sale of stocks and bonds. 7 45.121 Stock held in name of personal repre-

745.13 745.14 745.15

sentative. Sale by commissioner. Guardian forbidden to purchase. Conveyance of various property rights;

inchoate dower; joinder on behalf of incompetent husband or wife; estates by entirety; determination of values.

745.01 Leases of ward's property.- The guardian may lease all or any of the ward's property, except for exploration and exploitation of oil, gas or mineral rights, upon such terms and for such length of time as the circuit judge may authorize or confirm. Proceedings in such cases shaH be, as nearly as possible, as in cases of applications to sell property of the ward.

Blstor:r.-§3, ch. 868, 1859 ; RS 2103; OS 2622; ROS 3984; COL 5906; §2, ch. 22750, 1945; §30, ch. 73·334.

7 45.011 Application of uniform principal and income law.-

(1) The uniform principal and income law, chapter 690, shall be applicable in the principal and income of the estates of wards of the courts after July 1, 1965.

(2 ) Whenever the word "trustee" shall appear in chapter 690, the word "guardian" shall be substituted wherever applicable to the administration of the estate of a ward of the court.

Hlstory.-§1, ch. 65-205.

745.02 Leases of oil, gas, or mineral rights. -The guardian of the property of the ward may make oil, gas or mineral leases upon the real estate of the ward under the following rules:

(1) The guardian shall file a sworn petition with the circuit judge appointing him for authority to make any such oil, gas or mineral lease, and the circuit judge who hears such application shall require proof as to the necessity or advisability of such lease; and if he approves the same, he shall enter an order authorizing the guardian to make such oil, gas or mineral lease. Such order shall set out the consideration for which such land may be leased for oil, gas or mineral purposes, shall

745.16

745.17 745.18

745.19 745.20

745.21 745.23 745.24 745.25 745.26 745.27 745.28 745.29 745.30 745.31 745.32 745.33

Conveyance 'pursuant to contract of ward.

Sale of contract to purchase. Sale of property subject to contract to

purchase. Sale of property subject to mortgage. Power of guardian to execute instru-

ments. Purchasers and lenders protected. Power of election and of appointment. Annual returns. Contents of returns. Objections to returns. Hearing of objections. Examination of returns not objected to. Order requiring returns; contempt. Production of assets. Devastavit. Expenses and compensation. Attorney's fees and expenses.

give the name of the lessee, and shall contain a copy of said oil, gas or mineral lease authorized to be made. It shall not be necessary to state in said petition, nor in any order entered thereon, nor in any lease executed in pursuance of such order, the exact interest of the ward in the property.

(2) Previous notice thereof shall be given by the guardian for one week prior to the time the circuit judge shall hear such ·petition, by publishing the same in some newspaper of general circulation in the county in which leases are to be issued, and in the county where the land is located, one issue of the paper in each county being sufficient. Said notice shall state when and where such petition will be heard. If no such newspaper is published in the county or counties where such notice is required to be given, then said notice shall be posted at the courthouse door and at two other conspicuous places in each such county, as may be specified by the order of the circuit JUdge, for seven days next preceding the date of such hearing. No citation or notice, other than that provided in this subsection, shall be necessary to give the court jurisdiction over the subject matter and the parties.

(3) The hearing may be continued by the circuit judge from time to time, or the petition may be heard at any time after the date specified in the notice, whether formally continued by the court or not.

( 4) If such petition is granted, the guardian shall be authorized to make the oil, gas or mineral lease upon the real estate of the ward in accordance with the order of authorization, but such oil, gas or mineral lease shall not be valid until the guardian files a good and sufficient

2019


bond with surety in double the amount of the cash bonus that may be paid for such leases, or in the event that no cash bonus is paid, then such sum as may be fixed by the circuit judge.

(5) Any lease made by a guardian under the authority of this section may provide for the pooling or unitization of the leased land, or any part or parts thereof, and of any mineral or royalty interest therein, with land adjoining or in the vicinity of the leased land, or any mineral or royalty interest therein, so as to form a unit for development and purpose of operation. Operations on any such unitized area shall have the same effect as operations on the leased land. The lease may provide for payment of a proportionate part of the royalties on production from any such unitized area to the guardian in lieu of the royalties provided in the lease as to the area so unitized.

History.-§5, ch. 868, 1859; RS 2104; GS 2623; RGS 3985; CGL 5907; §2, ch. 22750, 1945; §30, ch. 73-334.

745.03 erty.-

Investments by guardian of the prop-

(1) A guardian shall exercise the prudence of an ordinary business man in keeping the funds of his ward invested. In the investment of the funds of his ward, a guardian shall be governed by the provisions of chapter 518, except as hereinafter noted in this section.

(2) The circuit judge may authorize the purchase of the entire fee simple title to real estate in Florida in which the guardian has no interest, but such purchase can be made· only for a home for the ward, or to protect the home of the ward or his interest, or as a home for his dependent family. If the ward is a married person adjudged incompetent and if the home of the ward or of the dependent family of the ward is owned by the ward and spouse as an estate by the entirety and if such home is sold pursuant to the authority of §745.15 (3) (a), the circuit judge may authorize the investment of the proceeds or any portion thereof from such sale toward the purci1ase of a fee simple title to real estate in Florida for a home for the ward or the dependent family of the ward as an estate by the entirety owned by the ward and spouse. If the guardian is authorized to acquire title to real estate for the ward or dependent family of the ward as an estate by the entirety in accordance with the preceding provisions, the conveyance thereof shall be in the name of the ward and spouse and shall be effective to create an estate by the entirety in the ward and spouse. The purchase of real estate pursuant to this authority shall not be made except upon an order of the circuit judge after hearing upon a verified petition.

(3) The guardian may, with the approval of the circuit judge, exercise any option contained in any policy of insurance payable to or inuring to the benefit of the ward.

History.-§3, ch. 2014, 1874; RS 2105; GS 2624; RGS 3986; CGL 5908; §2, ch. 22750, 1945; §1, ch. 67-83; §30, ch. 73-334. cf.-§518.01 et seq., Investment of fiduciary funds .

7 45.04 Encumbering property of ward.(1) Whenever it appears expedient or neces

sary and for the best interest of the ward to borrow money upon a promissory note or notes, either unsecured or to be secured by a mortgage pledge or other lien upon the property of th~ ward or any part thereof, including crops then planted and growing or thereafter to be planted and grown, the circuit judge may by order authorize the guardian of the property to borrow such su~ as .the circuit judge deems proper. The proceedmgs m such cases shall be, as nearly as possible, the same as in cases of applications for the sale of the ward's property. In like manner the circuit judge may authorize the guardian to extend or renew any existing obligation of the ward, or any mortgage, pledge, lien or other security therefor. The signing of promissory notes or the execution of any agreement or other instrument creating a pledge or · lien by the guardian as such, pursuant to an order obtained in accordance with the provisions Of this section, shall create no personal liability against the guardian so signing or executing.

(2) To secure the payment of any loan made for the benefit of the ward, the guardian may execute a mortgage or other lien on the property of the ward or any part thereof, and the same shall be valid when authorized or confirmed by the circuit judge. The indebtedness so secured shall be the obligation of the estate of the ward.

(3) If, as an incident to the borrowing of money, the purchase of stock in the lending agency is required, the circuit judge may authorize such purchase in whatever amount he deems necessary.


*745.05 Sale.- When the guardian of the property deems it expedient, necessary or for the best interest of the ward for part or all of the property to be sold, he may sell at public or private sale, but no title shall pass until the sale is authorized or confirmed by-order of the circuit judge; provided, however, that the guardian may sell without authorization or confirmation by the circuit judge any notes or bonds payable to bearer, and any sale so made shall convey all right, title and interest of the ward in the intangible personalty so sold; and provided, further, that inchoate right of dower of the ward shall be conveyed only as provided in §745.15.


•Note.-Ch . 73-107, Laws of Florida, effective October 1 1973 abolished the right of dower in property transferred prior to death. '

745.06 Petition for leave to sell.-Application for authorization or confirmation shall be made b~ the pe.tition. of .the guardian setting forth w1th partlculanty m facts showing the expediency or necessity for such sale, a description of the property sold or proposed to be sold and except when authorization or confirmation of the sale at current market of stocks, bonds or . other securities listed upon an established exchange is applied for, the price and terms of

2020


such sale. If the petition seeks authorization for the sale of property at public sale, it shall state the minimum price for which it is desired to sell the property and shall state that, if the sale takes place, it shall be sold to the highest bidder, if any, above such minimum price. Applications for sale may be heard by the circuit judge ex parte, except as provided in §§745.07 and 745.08. The petition must be sworn to by the guardian, his agent or his attorney.

History.- §6, ch . 2014, 1874; RS 2108; GS 2627; RGS 3989; CGL 5911 ; §2, ch. 22750, 1945; §30, ch . 73-334.

7 45.07 Notice of hearing on petition to sell. -No notice of any petition for the authorization or the confirmation of any sale of perishable personal property or of property rapidly deteriorating shall be required. No notice of any petition for the authorization or the confirmation of any sale of any kind of property shall be required unless the circuit judge deems it necessary or desirable, and then only such notice shall be given, personally or by publication, as the circuit judge may direct.

History.-§?, ch. 2014, 1874; RS 2109; GS 2628; RGS 3990; CGL 5912; §2, ch . 22750, 1945; §30, ch. 73-334 .

745.08 Hearing.-When no notice is required, the circuit judge may hear and determine petitions for the sale of the ward's property ex parte. When notice is required, such hearing shall be as in other cases. At such hearing the circuit judge may in his discretion require a new appraisal of the property.

History.-§2, ch. 22750, 1945; §30, ch. 73-334 .

745.09 Order of sale.-After the hearing upon a petition to sell property or to confirm the sale of property, the circuit judge shall make and enter an order thereon, and if the sale is authorized or confirmed, the order shall describe the property; and if the property is authorized to be sold at private sale, the order shall fix the price and the terms of sale. If the sale is to be public, then the order shall state the minimum price for which the property is to be sold and shall specify that the sale shall be made to the highest bidder above such price, if any. The order may also determine whether an additional bond is required, and if it is required, shall fix the amount thereof, but no such bond shall be required when the guardian is a bank or trust company. Such order shall be prima facie evidence of the validity of the proceedings and of the authority of the guardian to make a conveyance or transfer of the property. A certified copy of such order relating to real property may be recorded in the judgment lien record in the office of the clerk of the circuit court in any county wherein such real property or any part thereof is situated. An order of sale may provide for the sale of any of the property described therein, either publicly or privately, in parcels or as a whole.

History.-~2. ch . 22750, 1945; §30, ch . 73-334.

shall give such notice as the order requires. No notice of a sale of property to be made at private sale is necessary unless the circuit judge so orders.

History.-§2, ch . 22750, 1945; §30, ch . 73-334.

745.11 Sale upon terms.-(1) The guardian must sell upon such terms

as the order prescribes. If credit is given, it shall not be for more than 75 percent of the purchase price nor for longer than five years, unless the circuit judge, in his discretion by written order, authorizes a larger percent of credit. The circuit judge, in his discretion by written order, may also enlarge the time for payment. The exercise of such discretion shall be evidenced by written order duly recorded. The maturity of credit may extend beyond the duration of the incompetency of the ward.

(2) The deferred purchase price shall be evidenced by the negotiable promissory note of the purchaser payable to the guardian and secured by mortgage or pledge, which shall be a first lien upon the property sold, or by such other security as may be approved by the circuit judge in any case. If the guardianship terminates before the payment in full of such note, the note and mortgage or other security may be assigned and transferred without recourse to the person entitled thereto. The taking of a mortgage securing a note or the taking of other security shall not defer the final settlement and discharge of the guardian.

History.-§2, ch. 22750, 1945; §1, ch. 61-184; §30, ch. 73-334.

745.12 Sale of stocks and bonds.- The circuit judge may, upon petition of the guardian, make an order authorizing the sale at the current market price of any stocks or bonds which are listed upon an established stock or bond exchange, and such order need not otherwise designate the price at which such sale shall be made.

History.-~2. ch. 22750, 1945; §30, ch. 73-334.

745.121 Stock held in name of personal representative.-Upon entry of an order or decree of a court of competent jurisdiction, the guardian or gu ardians shall have the power to hold any corporate stock, mutual investment trust shares, registered bonds, notes, debentures, or revenue certificates issued by any corporation, government, municipality, or subdivisions or agencies thereof, in the name of the guardian or in the name of one or more of the joint guardians, or in the name of a nominee, with or without disclosing any fiduciary relationship; but for all acts and omissions of the guardian or guardians in whose name such property is held, and of such nominee, relating to such property, all the guardians shall be jointly and severally responsible.

History.-§! , ch. 61-327 ; §3, ch . 65-106.

745.13 Sale by commissioner.-In any order 745.10 Notice of sale.-When a guardian of of sale or at any time before the sale, the circuit

the property has been authorized to sell any of judge, whenever he deems it necessary, may aphis ward's property at public sale, the guardian point a commissioner to make the sale and to

2021


execute the deed consummating it. Any sale made by a commissioner shall be in compliance with the provisions of this law governing sales. Any sale so made and any deed executed by a commissioner on such an order shall be as valid as though made by the guardian.

History.-~2. ch. 22750, 1945; §30, ch. 73-334.

7 45.14 Guardian forbidden to purchase.N o guardian shall ever purchase property of the ward, unless sold at public sale, and then only if the guardian is a spouse, parent, child, brother or sister of the ward and is a cotenant of the ward in the property to be sold.

Hl•tory.-12, ch. 22760, 1945.

7 45.15 Conveyance of various property rights; inchoate dower; joinder on behalf of in· competent husband or wife; estates by entirety; determination of values.-

( I) A guardian of the property may, on petition and order and upon such terms as the order directs, execute and deliver a deed, lease or mortgage in the name of the ward, conveying, leasing, mortgaging or releasing any actual or apparent right or interest of the ward in any property, including the homestead, real or personal, and in all cases the value, if any, of the ward's right or interest shall be preserved and protected by the court's order.

*(2)(a) All or any part of the separate estate of an adjudged incompetent wife may be sold, mortgaged, or leased for her care, support, and maintenance on petition for an authorization by the circuit judge.

**(b) A guardian of the property of an ad· judged incompetent wife may, without mone· tary consideration and with or without court order, join with the husband in the sale, mortgage or lease of any of the husband's property in which the wife has no interest other than her inchoate right to dower, to the same extent and effect as if such joinder were by the wife herself sui juris. ·

**(c) In case an incompetent wife has no estate of value requiring active administration but has only an inchoate right of dower in her husband's property, which property he desires to sell, mortgage or otherwise convey, the court may, on proper petition, enter an order appointing the husband or other qualified person as the wife's property guardian without bond, and the court may in the same order make appropriate findings and may authorize said guardian, as such, to join with the husband without monetary consideration for the purpose of releasing the wife's dower in the husband's property described in the petition and order, and such joinder shall be to the same extent and effect as if by the wife herself sui juris.

(3) (a) A guardian of an adjudged incompetent husband may without consideration and with or without court order join with the wife in the sale, mortgage or lease of any of the wife's separate estate, real or personal, to the

same extent and effect as if such joinder were by the husband himself sui juris.

*(b) If an incompetent husband has no estate of value requiring active administration, the court may, on petition, enter an order appointing the wife or other qualified person as the guardian of the property of the husband without bond and may authorize the guardian to join with the wife without monetary consideration for the purpose of effectuating the conveyance of her separate property. The joinder shall be to the same effect as if made by the husband himself. This law shall not be construed to require the joinder of the husband in any case when it is not otherwise required by law.

*(4)(a) All legal or equitable interests in real and personal property owned as an estate by the entirety by any person who has been adjudged insane or mentally or physically incompetent and for whom a guardian has been appointed, may be sold, transferred, conveyed, or mortgaged upon the application of the guardian in the same manner as other property of the person adjudged incompetent, provided the spouse who is not incompetent shall join in the sale, transfer, conveyance, or mortgage of any property. When both spouses are incompetent, the sale, transfer, conveyance, or mortgage shall be by the guardians only. The sale, transfer, conveyance, or mortgages may be accomplished by one instrument or by separate instruments.

(b) In ordering or approving sale and conveyance of the real or personal property, the court shall provide that one half of the net proceeds derived from it shall go to the guardian of the property of the incompetent and the other one half to the spouse who is not incompetent. If both spouses are incompetent, the court shall provide that one half of the net proceeds shall go to the guardian of each spouse.

(c) The guardian of the property of the incompetent shall collect all payments coming due on intangible property, such as notes and mortgages and other securities, and shall retain one half of all principal and interest payments so collected and shall pay the other one half of the collections to the spouse who is not incompetent. If both spouses are incompetent, the guardian of either shall collect the payments, retain one half of the principal and interest payments, and pay the other one half to the guardian of the other spouse.

(d) The spouse of the incompetent shall col· lect all payments of rents on real estate held as an estate by the entirety and, after paying all charges against the property, such as taxes, insurance, maintenance, and repairs, shall retain one half of the net rents so collected and shall pay the other one half to the guardian of the property of the spouse who is incompetent. If both spouses are incompetent, the guardian of either may collect the rent, pay the charges, retain one half of the net rent; and pay .the other one half to the guardian of the other spouse.

2022


(5) In determining the value of life estates or remainder interests, the American experience mortality tables may be used.

*(6) Nothing in this section shall prohibit the court in its discretion from appointing a sole guardian to serve as guardian for both spouses.

Hlatory.-§2, ch. 22750, 1945; §1, ch. 23715, 1947; §1, ch. 26917, 1951; §1, ch. 67-81; §19, ch. 69-216; §§1, 2, ch. 70-45; §1, ch. 73· 61 ; §30, ch. 73·334.

•Note.-Subsections (2)(a), (3)(b) and (4) were amended, and subsec· tion (6) was created, by §1 , ch. 73-61, effective January 1, 1974.

••Note.-Ch. 73·107, Laws of Florida, effective October 1, 1973, abolished the right of dower in property transferred prior to death.

745.16 Conveyance pursuant to contract of ward.-In all cases where written agreements have been made for the sale and conveyance or transfer of real property in this state, or personal property, and the vendor has been placed under guardianship before making such conveyance or transfer, the guardian or the person claiming the ri~ht to such conveyance or transfer may file With the circuit judge issuing the order of appointment a sworn petition setting forth the facts upon which the claim is predicated and annexing thereto the agreement or a copy thereof. The petitioner shall serve upon the guardian or the claimant, as the case may be, reasonable notice of the hearing. After the hearing upon such petition and the defenses, if any, made thereto, the circuit judge may make an order directing the guardian to make, execute and deliver the conveyance or transfer of the ward's interest to the person entitled to it, or otherwise .as justice may require. Such order, if the conveyance or transfer is directed, shall describe the property to be conveyed or tranaferred. Such order shall be prima facie evidence of the validity of the proceedings and of the authority of the guardian to make the conveyance or transfer. A certified copy of any such order relating to real property niay be recorded in the judgment lien record in the office of the clerk of the circuit court in any county wherein such real property or any part thereof is situated.

Hiatory.-§2, ch. 22750, 1945; §30, ch. 73-334.

745.17 Sale of contract to purchase.-If the ward, at the time of the appointment of the guardian, possesses a contract for the purchase of real or personal property, his interest therein may be sold by the guardian in the same manner as if the ward had been the owner in fee simple or absolute owner of su~h property; provided, the owner of the interest or estate in such property which the ward has contracted to pur· chase and of the vendor's interest thereto shall execute a release to the guardian and the ward relieving them and the ward's property from liability upon such contract. In lieu of such release the guardian may, upon order of tht> circuit judge, take from the purchaser of such contract a bond to be approved by the circuit judge with sureties in a penal sum double the amount due and to become due under such contract, payable to the guardian, conditioned that the purchaser will make all payments upon such contract and perform all agreements therein contained according to the tenor thereof and in-

demnify and save harmless the guardian and the ward against all demands, costs, charges and expenses by reason of such contract.

Hiatory.-§2, ch. 22750, 1945; §30, ch. 73·334.

7 45.18 Sale of property subject to contract to purchase.-If the ward, at the time of the appointment of the guardian, is the owner of real or personal property subject to a contract to sell and convey such property, the interest of the ward in such property and such contract may be sold under the order of the circuit judge in the same manner as guardians may make other sales. No recourse shall be had against the guardian or the ward for the nonpayment or nonperformance by the vendee under any such contract. The consent of the vendee under said contract shall discharge the guardian and the ward from all obligations, duties and liabilities with respect to such contract.

Hiatory.-§2, ch. 22750, 1945; §30, ch. 73·334.

7 45.19 Sale of property subject to mortgage. -The circuit judge may, upon petition of the guardian and with or without the written consent of the holder of the mortgage, authorize the sale of any property owned by the ward in this state subject to mortgage, whether such mortgage was made by the guardian, the ward or some other person. The written consent of the mortgagee shall discharge the guardian and the ward from liability for the mortgage indebtedness or obligation.

Hiatory.-§2, ch. 22750, 1945; §30, ch. 73·334.

7 45.20 Power of guardian to execute instruments.-The guardian shall have power to execute and deliver in his name as guardian any instrument necessary or proper to carry out and give effect to the orders of the circuit judge.

Hiatory.-§2, ch. 22750, 1945; §30, ch. 73-334.

7 45.21 Purchasers and lenders protected.-No person purchasing or leasing from, or taking a mortgage, pledge or other lien from, a guardian shall be bound or concerned to see that the money or other things of value paid to such guardian are actually needed or properly applied; nor is such person otherwise bound as to the proprieties or expediencies of the acts of such guardian. In all such transactions the acts of the guardian shall prima facie be valid.

Hlltor;r.-12, ch. 22750, 1945.

745.23 Power of election and of appointment.- The circuit judge, on his own motwn or upon the petition of the guardian or of any person whose property interest might be affected thereby, may enter an order that any election, whether to dissent from a will or to exercise any other choice which the ward might exercise himself if sui juris or competent, shall be exercised or not exercised, or exercised in a particular manner or at a particular time, as the best interest of the ward may require. The circuit judge, on his own motion or on the petition of the guardian or of any person who is or may become an heir, legatee, devisee or sue-

2023


cessor in interest of or to the ward, may enter an order that the guardian, acting for the ward, shall do such act or acts or execute such documents as may be necessary or proper, to exercise, consummate or execute any power of appointment or other power which the ward might have lawfully exercised, consummated or executed if sui juris or competent, as the best interest of the ward requires. No order shall be entered under the authority of this section, except upon such notice or citation as the circuit judge may require, to all persons whose property interest might be affected thereby.

History.-§2, ch. 22750, 1945; §32, ch. 73-334.

7 45.24 Annual returns.-A guardian, unless otherwise ordered by the circuit judge, shalf make his annual returns on or before April 1 of each year, for the calendar year or fractional calendar year expiring December 31 preceding. If he fails to make such returns before such time, he may in the discretion of the circuit judge forfeit all commission on such returns so to be made.

History.- §2, ch . 22750, 1945; §1, ch . 59-322; §32, ch. 73-334.

7 45.25 Contents of returns.-(1) A guardian in his r eturns shall render

a full and correct account of the receipts and disbursements of all his wa rd's property of which he has control, and he shall include therein a statement of the ward's assets. The guardian shall also file with his returns evidence satisfactory to the circuit judge that the sureties on his bond, if individuals, are alive and solvent.

(2) Substantiating papers shall not be filed with accountings, but pertinent substantiating papers and records shall be available at a trial of objections to accountings, and all substantiating papers and records shall be preserved by the guardian for three years after his discharge.

History.- §2, ch. 22750, 1945; §2, ch. 59-322; §32, ch. 73-334.

745.26 Objections to retums.-(1) Upon the filing of returns with the

circuit judge by the guardian as provided in this law, any person interested as creditor or otherwise, after the filing of such returns, may file objections in writing thereto or to any item thereof within thirty days after April 1st of each year, specifying the grounds of objection. No item previously approved by order of the circuit judge upon notice shall be subject to objection.

(2) If any guardian fails to file his annual returns on or before April 1 in any year, any person interested in the estate may file in the circuit court a written demand for service of a copy of the returns, which demand shall contain the post-office address of the person filing it. If any demand is on file at the time the returns are filed, the guardian shall serve a copy of the returns upon the person who filed the demand therefor and shall file proof of service thereof in the circuit court. Objections may be filed to the

returns at any time within thirty days after the service of a copy thereof.

History .- §2, ch. 22750, 1945; §32, ch. 73-334.

745.27 Hearing of objections.-If objections to the returns are filed, the guardian or the objecting person, after the expiration of the time limited for filing objections and upon reasonable notice to the other, may apply to the circuit judge for a hearing. After the hearing, the circuit judge shall enter an order finally sustaining or overruling the objections, and he shall thereupon proceed to enter his order thereon.

History.-§2, ch . 22750, 1945; §3, ch. 59-322; §32, ch. 73-334.

745.28 Examination of returns not objected to.-If no objection is filed to any returns within the time limited by law for filing objections; the circuit judge shall proceed to examine said returns and enter his order approving the same or requiring such proof of the items contained therein as the circuit judge shall find desirable.

History.- §2, ch. 22750, 1945; §4, ch. 59-322; §32, ch. 73-334.

745.29 Order requiring returns; contempt. -When any guardian fails or neglects to make tl_le arm.ual returns .as required by this law, the circui~ Judge shall Issue an order directing said guardian to make such returns within fifteen days from the service upon him of such order or show cause why he should not be compelled to do so. A copy of such order shall be served upon the guardian or upon his resident agent. If the said guardian fails, neglects or refuses without good cause shown to file his returns within the time specified by said order, the circuit judge shall forthwith issue a citation directed to said guardian to show cause why he should not be adjudged in contempt of court for such failure or neglect, and if such guardian fails to show just cause, the circuit judge may forthwith adjudge said guardian to be in contempt of court, and said person shall stand committed for contempt until he makes the annual returns.

History.- §2, ch . 22750, 1945; §5, ch. 59-322; §32, ch. 73-334.

745.30 Production of assets.-Upon the petition of any creditor or other interested person or upon his own motion, the circuit judge may require any guardian to produce satisfactory evidence that the assets of the ward are in h1s possession or under his control. If he deems it necessary or proper,. the circuit judge may order the guardian to produce such assets for the inspection of such creditor or other interested person, or of said judge.

History.-§2, ch . 22750, 1945; §32, ch. 73-334.

7 45.31 Devastavit.-(!) An action suggesting devastavit may be

brought against the guardian of the property and his surety, jointly or separately, by any person interested in the ward or his property. When a guardian dies, resigns or is removed, an action suggesting devastavit may be brought also against him or his executor or administrator and against

2024


his surety by the remaining or successor guardian.

(2) When an action suggesting devastavit is brought against any guardian, if such guardian cannot show that he has fully administered according to law, he and his sureties shall be personally charged to the extent of assets not duly administered by him.

Hl•tory .-§2, ch. 22760, 1946.

7 45.32 Expenses and compensation. - A guardian of the property of a ward shall be allowed all necessary expenses and attorney's fees paid in the care, management and settlement of the ward's property. A guardian shall be allowed such compensation as the circuit judge may deem just and reasona~le for his services including services rendered m the sale of real ~r personal property, the conduct of litigation on behalf of or against the ward or his property, the carrying on of the ward's business pursuant to orders of the court and fo! a~y ?ther services which may be found by the c1rcu1t Judge to have been proper and necessary.

History.-§2, ch. 22750, 1945; §32, ch. 73-334.

745.33 Attorney's fees and expenses.-(!) An attorney who has been emp!oyed by a

guardian and who has rendered serv1ce to the ward or to the guardian in the ward's behalf, may apply to the circuit judge by petition for an order making an allowance for attorney's fees. After notice to the guardian, the circuit judge, shall make such order with respect thereto as he shall deem proper.

(2) In annual and final returns the guardian shall be entitled to credit for such reasonable sums as he may have paid to an attorney for expenses and services rendered to the ward or ~o the guardian in behalf of the ward_ and to cre~ht for his own reasonable expenses m connectwn with the guardianship. Objections may be made to the allowance of such items in the manner specified in ~745.26, unless s~ch _it_ems have been previousiy allowed by the c1rcmt Judge.

(3) If the guardian is a practicing attorney at law in this state and has rendered legal services in connection with his guardianship duties, he shall be allowed just and reasonable fees therefor in addition to his expenses and compensation provided by law for him as guardian.

History.-§2, ch. 22750, 1945; §32, ch. 73-334.

2025

Ch. 746 FLORIDA GUARDIANSHIP LAW, THffiD PART Ch. 746

CHAPTER 746

FLORIDA GUARDIANSHIP LAW, THIRD PART

746.01 Resignation of guardian. 746.02 Appointment of successor. 746.03 Reasons for removal of guardian. 746.04 Jurisdiction and proceedings for re-

moval. 746.05 Accounting upon removal. 746.06 Surrender of assets upon removal. 746.07 Proceedings for commitment. 746.08 Commitment proceedings instituted by

whom. 746.09 Order on proceedings for commitment. 746.10 Proceedings on bond of removed guard-

ian.

746.01 Resignation of guardian. - Any guardian, upon petition to and with the approval of the circuit judge of the county where the guardianship is pending, may resign and be re· lieved of his guardianship after such notice as the circuit judge in his discretion may require; provided, that such notice shall also be served upon the surety or sureties on the bond of the guardian; and provided, further, that before making an order relieving the guardian from his duties and obligations as such, the circuit judge shall require him to make and file a true and correct account of his guardianship and to deliver to his successor guardian any and all property of the ward and all books of account, cash, bonds, notes or other securities, documents or other papers concerning the property of the ward, together with all the sums of money due by him. The circuit judge, before making such order, shall be satisfied that the interest of the ward will not be placed in jeopardy by such action; provided, always, that the acceptance of such resignation shall not be construed to exonerate any guardian or his surety from any liability previously incurred.

History.-§! , ch. 17976, 1937; CGL 1940 Supp. 5919(1); §1, ch. 20928, 1941; §3, ch. 22750, 1945; §32, ch. 73-334.

746.02 Appointment of successor.-A successor guardian must be appointed and duly qualified before a guardian shall be relieved of his duties and obligations as provided in the preceding section.

Hl•tor:r.-12, ch. 17976, 1937; CGL 1940 Supp. 6919(2); 12, ch. 20928, 1941; am. 13, ch. 22760, 1946.

7 46.03 Reasons for removal of guardian.Any guardian may be removed and the order appointing him revoked for any of the following reasons, and such removal shall be in addition to, and not in lieu of, any other penalties prescribed by law:

(1) Fraud in obtaining his appointment. (2) Failure to discharge his duties. (3) Abuse of his powers. ( 4) Insanity or other incompetency. (6) Habitual drunkenness or continued sick

ness rendering him incapable of the discharge of his duties.

(6) Failure to comply with any order of the circuit judge unless such order has been superseded on appeal.

746.11 Survival of action upon resignation or removal.

746.12 Termination of guardianship upon re-moval of ward's incapacity; exhaus-tion of assets.

746.121 Termination of guardianship on change of domicile of resident ward.

746.13 Final returns and application for dis-charge; hearing.

746.14 Order of discharge. 746.15 · Letters of discharge. 746.16 Appeals and supersedeas. 746.17 Effective date.

(7) Failure to return schedules of property sold or accounts of sales of property or to produce and exhibit the ward's assets when so required.

(8) Wasting or embezzlement or other mismanagement of the ward's property.

(9) Failure to give bond or security for any purpose when so required by the circuit judge in accordance with the requirements of the law or failure to file with his annual returns the evidence required by §744.38 that the sureties on his bond are alive and solvent.

(10) Conviction of a felony. (11) Appointment of a receiver or liquidator

for any corporate guardian. (12) Failure of a resident guardian who re

moves from Florida to designate a resident agent with the residence and post-office address of such agent.

History.-§3, ch. 17976, 1937; CGL 1940 Supp. 5919(3); §3, ch. 22750, 1945; §32, ch. 73-334.

746.04 Jurisdiction and proceedings for removal.-Proceedings for removal may be instituted by the circuit judge on his own motion or by any surety or other interested person. A petition for the removal of a guardian must be sworn to and filed in the circuit court having jurisdiction of the guardianship at the time the petition is filed. Reasonable notice shall be given to the guardian. Upon the hearing the circuit judge may enter such order as he deems proper under the pleadings and the evidence.

History .-§4, ch. 17976, 1937; CGL 1940 Supp. 5919(4); §3, ch. 22750, 1945; §3~. ch . 73-334.

7 46.05 Accounting upon removal.-A removed guardian shall file, within twenty days after his removal, unless for good cause shown the time is extended by the circuit judge, a true, complete and final account of his guardianship in the circuit court removing him.

History.-§5, ch. 17976, 1937; CGL 1940 Supp. 5919(5); §3. ch. 22750, 1945; §32, ch. 73-334.

7 46.06 Surrender of assets upon removal.The successor guardian shall demand of the removed guardian, or his heirs, personal representative or surety all the property of the ward and all books of account, cash, bonds, notes or other securities, documents or other papers concerning

2026

Ch. 746 FLORIDA GUARDIANSHIP LAW. THIRD PART Ch. 746

the property, together with all sums of money due the ward by him. The removed guardian, or his heirs, personal representative or surety shall turn over to his duly qualified successor all said property upon qualification of his successor and upon demand made as aforesaid.

HlatorT.-16, ch. 17878, 1937; CGL 1940 Supp. 11919(8); am. fl, ch. 22750. 1945.

746.07 Proceedings for commitment.-If a removed guardian fails or refuses to file a true, complete and final account of his guardianship as required, or if he fails to turn over, on demand, to his successor all the property of his ward and all the books of account, cash, bonds, notes, securities, documents and other papers which are in his control and which concern the property of the ward, or if he fails to pay over to such successor guardian all the sums of money due the ward by him, it shall be within the discretion and power of the circuit judge, and it shall be his duty when such default is not attributable to a cause which is justifiable, to commit such removed guardian until he complies fully with the requirements of the law in the respects indicated. If sufficient cause is shown for the default, the circuit judge shall then indicate a reasonable time within which compliance with the law shall be required; and upon failure to comply with this or any subsequent like order, the defaulting removed guardian may be committed by the circuit judge until said guardian does comply.

Hietory.-§7, ch . 17976, 1937; CGL 1940 Supp. 5919(7); §3, ch . 20928, 1941; §3, ch . 22750, 1945; §32, ch . 73-334.

7 46.08 Commitment proceedings instituted by whom.-Proceedings for the commitment of such defaulting guardian may be instituted by the circuit judge sua sponte, or by any creditor, surety or other interested party, or by a successor guardian.

History.-§?, ch . 17976, 1937; CGL 1940 Supp. 5919(7); §3, ch . 20928, 1941 ; §3, ch. 22750, 1945; §32, ch. 73-334.

746.09 Order on proceedings for commitment.-If the proceedings for commitment are instituted by the circuit judge sua sponte, the order so entered addressed to such defaulting removed guardian directing compliance with the law shall be sufficient of itself. If proceedings are instituted by a person other than the circuit judge, they shall be by written petition filed with the circuit judge, stating the facts upon which the proceedings are based; the petition shall be sworn to by the petitioner, his agent or his attorney. Upon the filing of such petition under oath, the circuit judge, after notice to the removed guardian and a hearing on the petition, may issue his order of commitment and proceed in accordance with the provisions of this law.

H ietory.-§7, ch . 17976, 1937; CGL 1940 Supp. 5919(7); §3, ch . 20928, 1941; §3, ch. 22750, 1945; §32, ch . 73-334.

746.10 Proceedings on bond of removed guardian.-ln any case when a guardian is removed and when he is in default for thirty days either in the delivery of any part of the property or in the payment of the balances due

the successor guardian, the bond of such removed guardian may be put in suit.

Hlator,..-17, ch. 179'78, 1887; CGL 1940 Supp. 11919(7); 18, ch. 20928, 1941; am. 18, ch. 227110, 19411.

746.11 Survival of action upon resignation or removal.-All eases pending before any court by or against a guardian who is removed, or who resigns or dies, shall survive to or against the successor guardian, but no successor guardian shall be liable for any default on the part of any predecessor nor for any amount beyond the value of the property coming into his custody.

Hlator,..-18, ch. 17978, 1987; CGL 1940 Supp. 11919(8) ; am. IS, ch. 22750, 1946.

746.12 Termination of guardianship upon removal of ward's incapacity; exhaustion of assets.-When a ward becomes sui juris or when the property of a ward has been lawfully exhausted, the guardian of the property of such ward shall make final settlement and receive his discharge as provided in this law; provided, however, that before the circuit judge discharges such guardian, said circuit judge may require whatever proof of the removal of such incompetency or of the need of the continuance of the guardianship he may deem necessary.

Hietory.- §8, ch . 17976, 1937; CGL 1940 Supp. 5919(8); §3, ch. 22750, 1945; §32, ch . 73-334.

7 46.121 Termination of guardianship on change of domicile of resident ward.-When the domicile of a resident ward has lawfully been changed in accordance with §744.10, and the foreign court having jurisdiction over the ward at his new domicile has appointed a guardian of the property of such ward and said guardian has qualified and posted in such foreign jurisdiction a bond in an amount deemed reasonable by the circuit judge, the Florida guardian of the property of such ward may thereupon file his accountings and proceed to close the Florida guardianship if, in the opinion of the circuit judge, the transfer of such guardianship proceedings to the new domicile of the ward is deemed advisable and in the best interest of said ward, and provided further, however, that at the time of the filing of his accounting the Florida guardian shall cause to be published once a week for four consecutive weeks, four publications being sufficient, in a newspaper of general circulation published in the county, or where there is no newspaper of general circulation published in the county, by posting a copy thereof in three different places in said county, one of which shall be at the front door of the courthouse, of the fact that he has filed his accounting and will apply on a day certain, which shall not be less than twenty-eight nor more than sixty days from the date of the first publication of said notice, of his intent to apply for discharge, and therein stating that jurisdiction of said ward will be transferred to the state of foreign jurisdiction. If objection be filed to the termination of the Florida guardianship, the circuit judge, on the day set forth in said notice, shall proceed to hear said objection,

2027

Ch. 746 FLORIDA GUARDIANSHIP LAW, THIRD PART

and enter his order either sustaining or overruling said objection. Upon the disposition of any or all objections filed, or, if no objection be filed, final settlement shall be made by the Florida guardian and upon proof, acceptable to the circuit judge, that the remaining assets in such guardianship have been transferred to and received by the foreign guardian, the Florida guardian may be discharged and the Florida guardianship terminated. Provided further, however, that the entry of such order terminating the Florida guardianship shall not be construed to exonerate the guardian, or his surety, from any liability previously incurred thereto.

History.-§1 , ch . 61-393; §32, ch . 73-334.

746.13 Final returns and application for discharge; hearing.-

(1) When the need for a guardianship terminates, the guardian shall promptly file his final returns and his application to the circuit judge for discharge. If no objections are filed and if it appears to the circuit judge that said applicant has made full and complete distribution to his ward and has otherwise faithfully discharged his duties, said circuit judge may approve the applicant's final returns. If objections are filed, the circuit judge shall conduct a hearing under the same conditions as provided in this law for a hearing on objections to annual returns.

(2) The guardian applying for discharge is authorized to retain from the funds in his possession a sufficient amount to pay the final costs of administration accruing between the filing of his final returns and the order of discharge.

History.- !jl!, ch . 17976, 1937; CGL 1940 Supp. 5919(8); §3, ch . 22750, 1945; §32, ch. 73-334.

746.14 Order of discharge.-Upon the consideration of the application for discharge and of the objections thereto, if any, and of the evidence, if the circuit judge is satisfied that the

2028

guardian has faithfully and completely discharged his duties and has rendered complete and accurate final returns and has delivered the assets of the ward to the person entitled thereto, the circuit judge shall enter an order of discharge. Such discharge shall operate as a release from the duties of the guardianship and as a bar to any suit against said guardian or his surety, unless such suit is commenced within one year from the date of the discharge.

History.-§9, ch . 17976, 1937; CGL 1940 Supp. 5919(9); §7, ch. 22000, 1943; §3, ch . 22750, 1945; §32, ch. 73-334.

746.15 Letters of discharge.-Any time after the discharge of a guardian the circuit judge may issue letters of discharge to the guardian of the person or of the property, or, of both, and he shall issue them whenever a request is made by the guardian for such letters, and the costs of the letters of discharge shall be paid by the estate of the ward. Letters of discharge shall not be necessary to the validity of the discharge.

History.-§10, ch . 17976, 1937; CGL 1940 Supp. 5919(10); §3, ch . 22750, 1945; §32, ch. 73-334.

746.16 Appeals and supersedeas.-All orders, judgments and decrees of the circuit judge finally determining rights of any party in any proceeding in guardianship matters may as a matter of right be appealed to the appropriate district court of appeal, except those appeals which may be taken to the supreme court as provided by §3, Art. V of the state constitution, in the manner and within the time provided by the Florida appellate rules.

History.-§3, ch . 22750, 1945; §33, ch . 63-559; §11, ch. 73-299; §32, ch. 73-334.

746.17 Effective date.-Chapters 744, 745 and 746, as amended, shall take effect on January 1, 1946.

Hl•tor;r.-15. cb. 22750, 1946.

Ch. 747 ABSENTEES. INCOMPETENTS. ETC •• AND THEIR PROPERTY Ch. 747

CHAPTER 747

ABSENTEES, INCOMPETENTS, ETC., AND THE CONSERVATION OF THEIR PROPERTY

PART I CONSERVATORS (§§747.01-747.052)

PART II CURATORS (§§747.06-747.19)

PART I

CONSERVATORS

747.01 Who are absentees under this law. 747.011 Absentee incompetent for certain pur-

poses. 7 47.02 Jurisdiction. 7 47.03 Petition. 747.031 Notice; hearing. 747.032 Order of appointment. 747.033 Oath.

747.01 Who are absentees under this law.(1) Any person serving in or with the

armed forces of the United States, in or with the Red Cross, in or with the merchant marines or otherwise, during any period of time when a state of hostilities exists between the United States and any other power and for one year thereafter, who has been reported or listed as missing in action, interned in a neutral country, beleaguered, besieged or captured by the enemy, shall be an "absentee" within the meaning of this law; and,

(2) Any resident of this state, or any person owning property herein, who disappears under circumstances indicating that he may have died, either naturally, accidentally or at the hand of another, or may have disappeared as the result of mental derangement, amnesia or other mental cause, shall also be an "absentee" within the meaning of this law.

Hlstor;r.-§1, ch. 22888, 1945; §1, ch. 67-458.

747.011 Absentee incompetent for certain purposes.-An "absentee" as defined in §747.01 is considered incompetent for the purposes of §4, Art. X, state constitution.

History.-§!, ch . 71-103.

747.02 Jurisdiction.-The circuit court has jurisdiction to appoint a conservator of the estate of an absentee as defined in §747.01 upon a showing that:

(1)(a)l. The absentee has an interest in any form of property in this state; or

2. The absentee is a legal resident of this state; or

3. The wife or next of kin of the absentee is a legal resident of this state; and

(b) The absentee has not provided an adequate power of attorney authorizing another to act in his behalf with regard to such property or interest or the term of any such power of attorney has expired; and

(2) A necessity exists for providing care for

747.034 Bond. 747.035 Rights, powers, and duties of con-

servator. 747.036 Resignation or removal of conservator. 747.04 Termination of conservatorship. 747.051 Summary procedure. 747.052 Procedure for order authorizing action

by wife or next of kin.

the property or estate of the absentee or care for or judgments concerning his wife and children or, if he has no wife and children, his mother or his father.

History.-§2, ch. 22888, 1945; §2, ch . 71 -103.

747.03 Petition.-(1) The jurisdiction of the court shall be in

voked by the filing of a petition by any person who would have an interest in the property or estate of the absentee were such absentee deceased or any person who is dependent on said absentee for his maintenance or support.

(2) The petition shall be sworn to by the petitioner and shall state:

(a) The names, addresses, and ages of the spouse, children, mother, father, brothers, and sisters, or, if none of these is living, the next of kin, of the absentee;

(b) The name, address, and age of any other person who would have an interest in the property or the estate of the absentee if he were deceased;

(c) The exact circumstances which cause the person missing to be an absentee under §747.01 including the date he was first known to be missing, interned, beleaguered, etc.;

(d) The necessity for establishing a conservatorship;

(e) Whether or not the person alleged to be an absentee has a will and the whereabouts of said will; and

(f) A statement of all property constituting an asset of the alleged absentee's estate or in which he has any interest and the approximate value of same.

History.-§3, ch . 22888, 1945; §5, ch. 71-103.

747.031 Notice; hearing.-( 1) Notice of the hearing on the petition to

appoint a conservator shall be given to all persons named in the petition by registered mail or certified mail with return receipt requested.

2029

I

Ch. 747 ABSENTEES, INCOMPETENTS, ETC., AND THEIR PROPERTY Ch. 747

(2) The judge shall hear evidence on the question of whether the person alleged. to be missing, interned, beleaguered, etc., IS an absentee as defined by §747.01 and on the question of who is entitled to appointment as conservator. Any person interested in such proceedings may intervene with leave of the court. .

(3) The court may in its discretion appomt a guardian ad litem to represent the alleged absentee at the hearing.

History.-§6, ch. 71-103.

747.032 Order of appointment.-( I) If, after hearing, the court is sat~sfied

that the ·person alleged to be an absentee I:> a!l absentee as defined in §747.01 and that It IS necessary that a conservatorship be established, he shall appoint a conservator of the estate and property of said absentee to take charge of the absentee's estate and property under the supervision, and subject to the further orders, of the court.

(2) In the appointment of a conservator, the court shall give due consideration to the appointment of one of the next of kin of the absentee if such next of kin is a fit and proper person and is qualified to act.

History.-§?, ch. 71-103.

747.033 . Oath.-Every conservator, before exercising his authority as conservator, sha_ll take oath that he will faithfully perform his duties as conservator and that he will render true accounts whenever required according to law, which oath may be administered by any officer authorized to administer oaths under the laws of this state. Such oath shall be filed with the court.

History.-§8, ch. 71-103.

747.034 Bond.-The court may require the conservator to post a bond as required for a guardian under §§744.38 and 744.39. All provisions of chapter 7 44 which are applicable to bonds are applicable to the bond of the con~ servator required under this chapter.

History.-§9, ch . 71-103.

7 46 shall apply in the circuit court to resignation and removal of a conservator.

History.-§11, ch . 71-103.

747.04 Termination of conservatorship.(!) At any time upon petition signed by the

absentee, or on petition of an attorney in fact acting under an adequate power of attorney granted by the absentee, the court shall direct the termination of the conservatorship and the transfer of all property held thereunder to the absentee or to the designated attorney in fact.

(2) Likewise, if at any time subsequent to the appointment of a conservator it shall appear that the absentee has died and an executor or administrator has been appointed for his estate, the court shall direct the termination of the conservatorship and the transfer of all property of the deceased absentee held thereunder to such executor or administrator.

(3) When the need for a conservatorship terminates, the conservator shall promptly file his final returns and his application for discharge with the court. If it appears to the court that the returns are correct and that the conservator has made full and complete transfer of the absentee's assets as directed, the court may approve the returns and discharge the conservator. If objections to the returns are filed, the circuit judge shall conduct a hearing under the same conditions for a hearing on objections to annual returns.

( 4) Such discharge shall operate as a release from the duties of the conservatorship and as a bar to any suit against said conservator or his surety, unless such suit is co~menced within one year from the date of discharge.

History.-§4, ch. 22888, 1945; §12. ch. 71-103.

747.051 Summary procedure.-( I) If the wife of any person defined as an

absentee in §747.01(1), or his next of kin if said absentee has no wife, shall wish to sell or transfer any property of the absentee which has ·a gross value of less than five thousand dollars, or shall require the consent of the ?-bse~tee in any matter regarding the absentees children or m any other matter in which the gross value of the subject matter is less than five thousand dollars,

747.035 Rights, powers, and duties of con- she may apply to the circuit court for an or~er servator.- authorizing said sale, transfer, or consent with-

(1) The conservator shall have all the rights, out opening a full conservatorship proceeding powers, and duties of a guardian of the prop- as provided by this chapter. She may make the erty as established in chapters 744 and 745 · h h · t f tt and an absentee and an absentee's dependents application wit out t e assis ance o ~~ a omey.

Said application shall be made by petition on t?e shall be entitled to all benefits accruing to a following form, which form shall be made readily ward or a ward's dependents under said chap- available to the applicant by the clerk of the ters. circuit court:

(2) The circuit court shall have the same re- In the Circuit Court sponsibility as to a condservahtorshfiph as it hrtas In re: ______________________ , case number --------------------------------· with respect to the guar ians ip o t e prope Y Absentee under said chapters. PETITION FOR SUMMARY RELIEF

History.-§10, ch . 71-103; §32, ch. 73-334. Petitioner, __________ , whose residence is --------------------------747.036 Resignation or remov9:l of conser- Name Street & number

vator.-The provision for resignatw~ and re- ____________________ , and ______________ , Florida, and who is moval of a guardian of the property m chapter Cityortown County

2030

Ch. 747 ABSENTEES. INCOMPETENTS. ETC .• AND THEIR PROPERTY Ch. 747

the --------------------------------------------------------- of the absentee, Describe relationship to absentee

_________ , states that the absentee has been --------------------Name lmpri--------------------------------------------- since __ ________ when ______________ _ sonedormissinginaction Date Describe ----------------------------· Petitioner desires to sell/ transfer details --------------- -------------------------- of the value of ________ because Describeproperty Value ---------------------------------- ·The terms of sale/transfer are

Give reasons ---------------------------- ·Petitioner requires the consent of

Give reasons · the absentee for the purpose of ------------------------------------·

Petitioner State of Florida County of _____________________ _ The a hove named, -----------------------·-----------·being by me duly sworn, says the foregoing petition is true and correct to the best of his/ her knowledge and belief.

Notary P~bl~c or Co_unty Court Judge My comm1sswn expues ----------------------------

(2) The court shall, without hearing or notice, enter an order on said petition if it deems the relief requested in said petition necessary to protect the best interests of the absentee or his dependents.

(3) Such order shall be prima facie evidence of the validity of the proceedings and the authority of the petitioner to make a conveyance or transfer of the property or to give the absentee's consent in any matter prescribed by subsection (1).

History.-§3, ch. 71·103; §32, ch. 73·334.

747.052 Procedure for order authorizing action by wife or next of kin.-

(1) If the spouse, or the next of kin if there is no spouse, of any person defined as an absentee under §747.01(1), shall wish to sell, lease, or mortgage specific property having a gross value of five thousand dollars or more owned by the absentee or in which the absentee had an interest, or take specific action with respect to the absentee's interest having a gross value of five thousand dollars or more, she may petition the circuit court for an order authorizing the action with respect to such property or interest.

(2) The petition shall be sworn to by the petitioner and shall state:

(a) The names, addresses, and ages of the spouse, children, mother, father, brothers, and sisters, or, if none of these is living, the next of kin, of the absentee;

(b) The name, address, and age of any other person who would have an interest in the property or the estate of the absentee if he were deceased;

(c) The exact circumstances which cause the person miss.ing to be an absentee under §747.01, including the date he was first known to be missing, interned, beleaguered, etc. ;

(d) The reasons for the action for which the petition seeks authorization;

(e) Whether or not the person alleged to be an absentee has a will and the whereabouts of said will and contents if known; and

(f) A statement of all property constituting an asset of the alleged absentee's estate or in which he has any interest and the approximate value of same.

(3) Notice of the hearing on the petition shall be given to all persons named in the petition by registered mail or certified mail with return receipt requested.

(4) The judge shall hear evidence on the question of whether the person alleged to be missing, interned, beleaguered, etc., is an absentee as defined by §747.01 and on the question of whether the action in question should be authorized. Any person interested in such proceedings may intervene with leave of the court.

(5) The court may in its discretion appoint a guardian ad litem to represent the alleged absentee at the hearing.

(6) If, after hearing, the court is satisfied that the person alleged to be an absentee is an absentee as defined in §747.01, that the action in question should be authorized, and that there is no necessity for a full conservatorship as provided by §747.03, the court shall enter an order appointing the petitioner as conservator for the purposes of the action which is the subject of the petition and authorizing the conservator to take the action requested in the petition. The court shall require the conservator to account for the proceeds of the sale, lease, or other action, but the conservator shall not be required to subject the other property of the absentee to a conservatorship proceeding. The court may retain jurisdiction of the proceeding to make such further orders as it deems proper.

History.-§4. ch . 71-!03.

PART II

CURATORS

747.06 747.07 747.08 747.09

Appointment of curator; petition. Curator; hearing; notice and order. Curator; hearings; testimony; decree. Curator; appointment of guardian ad

litem.

747.10

747.11 747.12 747.13

2031

Curator; appointment of committee of inquiry.

Curator; effect of decree. Bond of curator. Court to direct allowance for ward.

Ch. 747 ABSENTEES, INCOMPETENTS, ETC., AND THEIR PROPER'l'Y Ch. 747

747.14 Special curator. 747.15 Curator's account; procedure for con

firmation. 747.16 Audit and examination of accounts.

747.06 Appointment of curator; petition.The jurisdiction of the court shall be invoked by the filing of a petition in the circuit court of the county of his or her residence by the person for whose property a curator is sought; or by either the father, mother, brother, sister, husband, wife or child or next of kin of such person; and, if any such relative fails to act, then by the sheriff of the county of the domicile or residence of such person, which petition shall set forth the facts and reasons why it is proper, appropriate or reasonably necessary for the best interest of such person that such appointment be made. The petition shall state names and addresses of all members of the immediate family and the names and addresses of husband or wife and next of kin, as particularly as is known to the petitioner.

History.-§2, ch . 25376, 1949.

747.07 Curator; hearing; notice and order.(1) The appointment shall be made only after

a hearing upon due notice to one or more members of his or her family; or, if not a member of a family, to one or more relatives, or after such personal or such published notice as may be required by an order of court.

(2) The court shall by order determine what members of the family or relatives shall be given notice of the hearing and may determine the manner of giving such notice.

History.-§3, ch . 25376, 1949.

747.08 Curator; hearings; testimony; de-cree.- . .

(1) The person against whom the petitwn IS presented shall attend or be summoned to attend or be given notice of the hearing of the petition before the court.

(2) At such hearing the court may take the testimony of all the parties in interest who shall appear and such witnesses as any member of his family whom he may see fit to call or summons.

(3) If the court on such hearing shall fi* that the petition is well founded, then the cou t shall appoint a curator of the estate of sue person, herein referred to as a ward. Any perso~ interested may intervene in such proceedings with leave of court.

(4) The testimony adduced at the hearing shall be transcribed and filed unless the court shall find it to be unnecessary, and so order.

History.-§4, ch. 25376, 1949.

747.09 Curator; appointment of guardian ad litem.-The court may in its discretion appoint a guardian ad litem to represent at the hearing the person against whom the proceedings are taken.

History.-§5, ch. 25376, 1949.

747.17 Curator and guardian, if any, to be discharged upon recovery.

747.18 Curators, powers and duties. 747.19 Curatorship; review by court.

quire into the r~port of its findings upon the question of the disability of such person.

History .-§6, ch. 25376, 1949.

747.11 Curator; effect of decree.-From and after the rendition of the decree appointing· a curator such person for whom appointed shall be a ward' of the court appointing such curator, and the ward shall be wholly incapable of making any contract or gift whatever, or any instrument in writing, of legal force and effect, except after leave of court is granted upon a hearing after notice to the curator and such next of kin as the court shall order given notice of application.

History.-§7, ch . 25376, 1949.

747.12 Bond of curator.-(1) The curator so appointed shall, before

entering upon his duties, file with the clerk of the court a good and sufficient bond, approved by the clerk, with such surety or sureties as required of a guardian's bond, payable to the governor of the state and his successors in office, in such penal sum as the court shall determine by order and conditioned to faithfully perform his duties according to the requirements of law and orders of the court.

(2) The court may at any time require of the said curator such additional or larger bond as may seem to be proper or necessary to protect the interests of the ward.

History .-§8, ch. 25376, 194V.

747.13 Court to direct allowance for ward.The court appointing such curator shall have full power over the estate of the ward and allowances to or for the said ward, and may allow and assess against the estate of the ward all reasonable costs incurred in procuring the appointment of said curator and during the curatorship; and shall have full power to enter a decree for the selling, mortgaging, or leasing of the real or personal property of the said ward, after the court shall have made an affirmative finding that a mortgage, sale or lease for such purposes is reasonably necessary or expedient:

(1) For the maintenance and support of the ward or to secure advances for the same; or

(2) To discharge existing liens; or (3) To protect the ward's estate;

Such sale, mortgaging or leasing shall be upon such terms and rates as shall be approved by the court, but no property of the ward shall be mortgaged at a rate of interest greater than six per cent per annum.

History .-§9, ch . 25376, 1949.

747.10 Curator; appointment of committee 747.14 Special curator.-After a curator is of inquiry.-The court shall appoint a committee appointed and qualified he may move the court consisting of two practicing physicians to in- for the appointment of a "special curator," to

2032

ABSENTEES, INCOMPETENTS, ETC., AND THEIR PROPERTY Ch. 747

prosecute any causes of action, suits or claims or to recover any property or other assets of the ward or to establish any rights in respect to the ward's estate, and such appointee shall have such powers, duties and responsibilities in respect thereto as the court shall prescribe, to the same extent and with the same limitations as · would the principal curator.

Hlslory.-§10, ch . 25376, 1949.

747.15 Curator's account; procedure for confirmation.-Every curator shall file annually, and as often as otherwise ordered, in the court making said appointment, a full accounting of the administration of said trust. The curator shall present his accounts to the court in debit and credit form and shall petition the court to have them examined, approved and confirmed finally. The court shall by order direct to whom and what notice, if any, shall be given of the hearing of the petition or motion for approval.

Hlslory.-§11, ch . 25376, 1949.

747.16 Audit and examination of accounts.(!) After filing proof of the service of the

notice, the court may thereupon examine or audit the accounts, or may appoint an examiner or auditor to examine and audit such accounts and report thereon to the court.

(2) After the examination or audit of any accounting is completed, the court shall approve or disapprove the same, or any item thereof; and the court may at any time before the curator has been finally di8charged, after notice, enter judgment against the curator and his sureties for failing to comply with or abide by the terms and conditions of his bond.

(3) The cost of the audit or examination shall be paid out of the estate, as the decree of the court shall otherwise direct.

(4) Upon the death or restoration to .leg~l capacity of the ward, the curator shall file m

the office of the clerk of the circuit court a full and complete account of such items and matters as were not included in any former account confirmed finally.

Hislory .-§!12, 13, ch. 25376, 1949.

747.17 Curator and guardian, if any, to be discharged upon recovery.-lf, at any time the ward shall become able to properly care for himself or his property, he may petition the court, setting forth such fact; and, after a hearing, of which due notice shall be given to the curator and some one or more of the family or next of kin of the said person, as the court shall order, and after the appearance of the ward before the court, if the court shall find that the said person has regained the ability to properly care for his property, the court shall decree accordingly, and shall thereafter discharge the curator upon the rendition of a proper accounting and after same has been confirmed after notice and hearing.

Hislory.-§14, ch . 25376 , 1949 .

747.18 Curators, powers and duties.-Except as herein otherwise provided, a curator shall have the powers and be subject to the same duties over and concerning the property of a ward as may be by law had and exerci8ed by the guardians of the property of infants, and the court shall have and exercise the same powers touching such curator and the property of such person as may be by law had and exercised touching the guardian of the property of infants.

Hislory.- §15 , ch . 25376, 1949.

747.19 Curatorship; review by court.-Any orders or decrees of the circuit court relating to a curatorship may be reviewed as are other orders and decrees in equity, and such an appeal may be taken by any person as next friend of the ward after obtaining leave of the chancellor or by the curator or by the petitioner.

His lory.-§16, ch. 25376, 1949.

2033

TITLE XLIII TORTS

CHAPTER 767

DAMAGE BY DOGS

767.01 Owners responsible. 767.02 Sheep-killing dogs not to roam about.

767.01 Owners responsible. - Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons.

Hl•tor7.-RS 2SU; cb. 4979, 1901; GS 8142; RGS 4967; CGL 7044.

767.02 Sheep-killing dogs not to roam about. -It is unlawful for any dog known to have killed sheep to roam about over the country unat.tended by a keeper. Any such dog found roaming over the country unattended shall be deemed a run-about dog, and it is lawful to kill such dog.

Hl•tor7.-11, cb. 41811, 1893; GS 8143; RGS 4968; CGL 7045.

767.03 Good defense for killing dog.-In any action for dama'ges or of a criminal prosecution against any person for killing or injuring a dog, satisfactory proof that said dog had been or was killing sheep shall constitute a good defense to either of such actions.

History.-~! . ch. 4978, 1901; GS 3144; RGS 4959; CGL 7046.

767.04 Liability of owners.-The owners of any dog which shall bite any person, while .

767.03 Good defense for killing dog. 767.04 Liability of owners.

such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dogs, shall be liable for such damages as may be suffered by persons bitten, regardless of the former viciousness of such dog or the owners' knowledge of such viciousness. A person is lawfully upon private property of such owner within the meaning of this act when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon invitation, expressed or implied, of the owner thereof; provided, however, no owner of any dog shall be liable for any ·damages to any person or his property when such person shall mischievously or carelessly provoke or aggravate the dog inflicting such damage; nor shall any such owner be so liable if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words "Bad Dog."

Hlstory.-U, ch . 25109, 1949.

2034

Ch. 768 NEGLIGENCE Ch. 768

• CHAPTER 768

NEGLIGENCE

768.04 768.041 768.05 768.06 768.07 768.08

Limitation of action. Release or covenant not to sue. Lia bility of railroad company. Compara tive negligence. Liability for injury to employees. Liability of corporations having relief

department for injury to employees; contracts in violation of act void.

Pits and holes not to be left open. Pits and holes; measure of damages. Motor vehicle colliding with any ani-

768.10 768.11

\768.12 mal at large on a public highway.

768.13 Good Samaritan act; immunity from civil liability.

768.131 Medical review committee, immunity from liability.

768.14 Suit by state; waiver of sovereign immunity.

768.151 Waiver of sovereign immunity; revival of certain causes.

768.04 Limitation of action.-All actions provided for by §768.03 shall be barred, unless brought within two years from the time the cause of action accrued.

Hletor,-.-12, ch. 6487, 1913; RGS 4963; CGL 7060. et.-Ch. 95, Limitations, generally.

768.041 Release or covenant not to sue.(1) A release or covenant not to sue as

to one tort-feasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death.

(2) At trial if any defendant shows the court that the plaintiff, or any person lawfully on his behalf, has delivered a release or covenant not to sue to any person, firm or corporation in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly.

(3) The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.

Hlstory.-f§l-3, ch. 57-395 ; §45, ch. 67-254. Note.-See former 154.28.

*768.05 Liability of railroad company .-A railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employ and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and ret>.sonable care and diligence, the presumption in ali cases being against the company.

768.16 768.17 768.18 768.19 768.20 768.21 768.22 768.23 768.24 768.25 768.26 768.27 768.28

768.29

768.30

Short title. Legislative intent. Definitions. Right of action. Parties. Damages. Form of verdict. Prote<;tion ofminors and incompetents. Death of a survivor before judgment. Court approval of settlements. Litigation expenses. Effective date. Waiver of sovereign immunity in tort

actions; recovery limits; limitation on attorney fees; statute of limitation; exclusions.

Submission of claims for administrative settlement.

Effectiveness.

Hl•tor,-.-111, 2, ch. 8744, 1887; 11. ch. 4071, 1891; GS 8148; RGS 4964; CGL 7061.

"Note.-See Florida East Coast Rail way Compa ny v. Edwards, 197 So. 2d 293 (1967). ct.-1356.04, Railroad k11llng livestock.

1860.02, Negligence of carrier.

*768.06 Comparative negligence.-No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence. If' the plaintiff and the agents of the company are both at fault, the former may recover, but the amount of recovery shall be such a proportion of the entire damages sustained, as the defendant's negligence bears to the combined negligence of both the plaintiff and the defendant.

Hl•tor,-..-111. 2, ch. 8744, 1887; 12. ch. 4071, 1891; GS 8149; RGS 4965; CGL 700.

•Note.- See Geor gia Southern and Florid a Railway Company v. Seven-Up Bottling Compa ny of Sout heast Georgia, 175 So. 2d 39 (1965).

768.07 Liability for injury to employees.If any person is injured by a railroad company by the running of the locomotives or cars, or other machinery of such company, he being at the time of such injury an employee of the company, and the damage was caused by negligence of another employee, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to a recovery. No contract which restricts· such liability shall be legal or binding.

Hlator,-.-§3, ch. 4071, 1891; GS 3160; RGS 4966; CGL 7053. cf.-§769.06, Contracts limiting li abili ty.

768.08 Liability of corporations having relief department for injury to employees; contracts in violation of act void.-Any person, association of persons, or corporatiOns that has, or shall hereafter have, a relief department for the benefit of their or its employees, or which shall contribute any money

2035

Ch. 768 NEGLIGENCE

or other thing of value to any relief society or association for the benefit of their or its employees, to which such employee may also contribute any money, or other thing of value, shall not be relieved of liability to such employee, or in case of his death r.o any person authorized by law to sue for such death, for the negligent injury or killing of such employee, because such employee may have been a member of or contributed to any such relief department, or received any benefits therefrom, but such employee, and in case of his death any person or persons authorized by law to sue for such death, shall be entitled to demand, sue for and recover any benefit that such employee may have been entitled to receive by reason of having been a member of or contributed to any such relief department, society or association, and such employee, and in case of his death any person authorized by law to sue for such d~ath, shall be entitled to institute suit against any such person, association of persons or corporations, and to recover for any injury suffered by such employee and for the death of such employee, suffered through the negligence of such person, association of persons, or corporation, and any contract, stipulation or provision in violation of this section is declared to be null and void. ·

Hlator,-.-11, ch. 6620, 1918; RGS 4967; CGL 7064.

768.10 Pits and holes not to be left open.It is not lawful for any company or individual to leave open any pit or other hole outside of an enclosure of a greater depth and breadth th~n two feet; provided, however, such pit or hole may be left open by enclosing the same with a fence or other enclosure that would be a safeguard against horses, cattle or other domestic animals falling into the same; provided further, that this section shall not apply to pits or holes made by any company or individual while bona fide engaged in actual mining operations, such pits and holes to be enclosed as herein provided when said mining operations shall cease or be discontinued.

Hlatoi'J'.-11, ch. 4061, 1891; GS 8162; RGS 4969; CGL 7066.

representative of the estate of the said deceased operator on account of any injuries to, or the death of, such animal, resUlting from the collision.

Hlator,-.-11, ch. 21018, 1941. cf.-1356.04 et aeq., Railroads kllllug stock.

1768.06, Liability of railroad.

768.13 Good Samaritan act; immunity from civil liability.-

(1) This act shall be known and cited as the good Samaritan act.

(2) Any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment at the scene of an emergency outside of a hospital, doctor's office, or other place having proper medical equipment, without objection of the injured victim or victims thereof, shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent man would have acted under the same or similar circumstances.

Blslory.-§§1, 2, ch. 65-313 .

768.131 Medical review committee, immunity from liability.-

(!) As used in this section, the term "medical review committee" or "committee" shall mean a committee of a state or local professional society or of a medical staff of a licensed hospital or nursing home, provided the medical staff operates pursuant to written bylaws that have been approved by the governing board · of .the hospital or nursing home, which is formed to evaluate and improve the quality of health care rendered by providers of health service or to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area.

(2) There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any member of a duly appointed medical review committee for any act or

768.11 Pits and holes; measure of damages. proceeding undertaken or performed within the -Any company or individual who may leave scope of the functions of any such committee open pits or other holes contrary to the pro- if the committee member acts without malice or visions of §768.10 shall be liable in damages fraud. This immunity shall apply only to actions to any person injured thereby in an ~.mount by providers of health services, and in no way double the actual damages sustained, which shall this section render any medical review may be recovered in any court of competent committee immune from any action in tort or jurisdiction. contract brought by a patient or his successors

Hlator,-.-12, ch. 4051, 1891; GS 8168: RGS 4970: CGL or assigns. The provisions of this section do not 7067· affect the official immunity of an officer or

768.12 Motor vehicle colliding with any ani- employee of a public corporation. mal at large on a public highway.-That when- (3) This section shall not be construed to ever a motor vehicle collides with any animal at confer immunity from liability on any profeslarge on a public highway of this state, and the sional society or hospital or upon any health operator of the motor vehicle dies as a result professional while performing services other of the collision, the owner of such animal shall than as a member of a medical review comhave no cause of action against the personal mittee. In any case in which, but for the enact-

2036

NEGLIGENCE Ch. 768

ment of the preceding provisions of this section, a cause of action would arise against a hospital, professional society, or an individual health professional, such cause of action shall exist as if the preceding provisions had not been en· acted.

(4) The proceedings and records of committees as described in the preceding subsections, shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, or other actions of such committee or any members thereof. However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings.

History.-§§! , 2, ch. 72·62; §1, ch. 73-50. Note.- Fonner §458.20.

768.14 Suit by state; waiver of sovereign immunity.-Suit by the state or any of its agencies or subdivisions to recover damages in tort shall constitute a waiver of sovereign immunity from liability and suit for damages in tort to the extent of permitting the defendant to counterclaim for damages resulting from the same transaction or occurrence.

Hlstory.-§1, ch. 67-2204.

768.151 Waiver of sovereign immunity; revival of certain causes.-The waiver of sovereign immunity authorized by chapter 69-116, Laws of Florida (former §768.15), is revived as to causes of action arising during the period from July 1, 1969, to July 1, 1970, and the courts of this state shall have continuing jurisdiction over such actions until final judgment and satisfaction thereof. If any such action heretofore filed has been dismissed or otherwise disposed of on the grounds that chapter 69-116, Laws of Florida, was repealed by chapter 69-357, Laws of Florida, such action shall be reinstated by order of the court upon the filing of a petition by the plaintiff during the period between July 1, 1971, and July 1, 1972. Any person who has not heretofore filed suit but who claims a right of action pursuant to chapter 69-116, Laws of Florida, during its effective period shall have the right

to file same at any time after July 1, 1971 , but before July 1, 1972. Any action prosecuted under this section shall be subject to all provisions of chapter 69-116, Laws of Florida.

History.-§!, ch. 71·165.

768.16 Short title.-Sections 768.16-768.27 may be cited as the "Florida Wrongful Death Act."

History.-~ ! . ch . 72-3!;.

768.17 Legislative intent.- It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.27 are remedial and shall be liberally construed.

H is tory.-§!, ch . 72-3.1.

768.18 Definitions.-As used m §§768.16-768.27:

(1) "Survivors" means the decedent's spouse, minor children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the illegitimate child of a mother, but not the illegitimate child of the father unless the father has recognized a responsibility for the child's support.

*(2) "Minor children" means unmarried children under twenty-one years of age.

(3) "Support" includes contributions in kind as well as money.

(4) "Services" means tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent. These services may vary according to the identity of the decedent and survivor and shall be determined under the particular facts of each case.

(5) " Net accumulations" means the part of the decedent's expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of his estate if he had lived his normal life expectancy. "Net business or salary income" is the part of the decedent's probable gross income after taxes, excluding income from investments continuing beyond death, that remains after deducting the decedent's personal expenses and support of survivors, excluding contributions in kind.

History.-§! , ch. 72·35.-· *Note.-Ch . 73·21 , Laws of F1orida, removed the disability of non·

age for persons 18 years of age and older. cf.-§1.01(14) Definition of minor. . .

§743.07 Rights, privileges and obhgatwns of persons 18 years of age or older.

768.19 Right of action.- When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or w~rranty of any person, including those occurrmg on navigable waters, and the event would have entitled the person injured to maintain an

2037


action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony.

History.-§!, ch. 72-35.

768.20 Parties.- The action shall be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death. When a personal injury to the decedent results in his death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate. The wrongdoer's personal representative shall be the defendant if the wrongdoer dies before or pending the action. A defense that would bar or reduce a survivor's recovery if he were the plaintiff may be asserted against him, but shall not affect the recovery of any other survivor.

History.-§! , ch. 72-35.

768.21 ~amages.-All potential beneficiaries of a reco~ry for wrongful death, including the decedent's estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows: ·

(1) Each survivor may recover the value of lost support and services from the date of the decedent's injury to his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor's relationship to the decedent, the amount of the decedent's probable net income available for distribution to the particular survivor, and the replacement value of the decedent's services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.

(2) The surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury.

(3) Minor children of the decedent may also recover for lost parental comp·anionship, instruction, and guidance and for mental pain and suffering from the date of injury.

(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury.

(5) Medical or funeral expenses due to the decedent's injury or death may be recovered by a survivor who has paid them.

(6) The decedent's personal representative may. recover for the decedent's estate the following:

(a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. If the decedent's survivors include a surviving spouse or lineal descendants, loss of net accumulations beyond death and reduced to present value may also be recovered.

(b) Medical or funeral expenses due to the decedent's injury or death that have become a charge against his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5).

(c) Evidence of remarriage of the decedent's spouse is admissible.

(7) All awards for the decedent's estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims.

His tory.-§! , ch . 72-35.

768.22 Form of verdict.-The amounts awarded to each survivor and to the estate shall be stated separately in the verdict.

History.-§ I, ch . 72-:!f •.

768.23 Protection of minors and incompetents.-The court shall provide protection for · any amount awarded for the benefit of a minor child or an incompetent pursuant to the Florida guardianship law. History . -~! . r h . n-:1;,_

768.24 Death of a survivor before judgment. -A survivor's death before final judgment shall limit the survivor's recovery to lost support and services to the date of his death. The personal representative shall pay the amount recovered to tJ:e personal representative of the deceased survivor.

History.-§! , ch . 72-35.

768.25 Court approval of settlements.While an action under this act is pending, no settlement as to amount or apportionment among the beneficiaries which is objected to by any survivor or which affects a survivor who is a minor or an incompetent shall be effective unless approved by the court.

History .-§! , ch. 72-:lf>.

768.26 Litigation expenses.-Attorneys' fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but expenses incurred for the benefit of a particular survivor or the estate shall be paid from their awards.

History.-§!, ch . 72-35.

date.-Sections 768.16-on July 1, 1972, and

deaths occurring before that

2038


*768.28 Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitation; exclusions.-

(1) In accordance with §13, Art. X, state constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.

(2) As used in this act, "state agencies or subdivisions" include the executive departments, the legislature, the judicial branch, and the independent establishments of the state; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities.

(3) Except for a municipality, the affected agency or subdivision may, at its discretion, request the assistance of the Department of Insurance in the consideration, adjustment, and settlement of any claim under this act.

(4) Subject to the provisions of this section, any state agency or subdivision of the state shall have the right of appealing any award, compromise, settlement, or determination to the court of appropriate jurisdiction.

(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000, or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state arising out of the same incident or occurrence, exceeds the sum of $100,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $50,000 or $100,000, as the case may be, and that portion of the judgment that exceeds these amounts may be reported to the legislature, but may be paid in part or in whole only by further act of the legislature.

(6) An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the Depart-

ment of Insurance, within three years after such claim accrues and the Department of Insurance or the appropriate agency denies the claim in writing. The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within six months after it is filed shall be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted by counterclaim pursuant to §768.14.

(7) In actions brought pursuant to this section, process shall be served upon the head of the agency concerned and also, except as to a defendant municipality, upon the Department of Insurance, and the department or the agency concerned shall have thirty days within which to plead thereto.

(8) No attorney may charge, demand, receive, or collect, for services rendered, fees in excess of 25 percent of any judgment or settlement.

(9) No officer or employee of the state or its subdivisions shall be held personally liable in tort for any injuries or damages suffered as a result of any act, event, or omission of such ·officer or employee in the scope of his employment unless such officer or employee acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

(10) If the state or its agency or subdivision is insured against liability for damages for any negligent or wrongful act, omission, or occurrence for which action may be brought pursuant to this section, then the limitations of this act shall not apply to actions "brought to recover damages therefor to the extent such policy of insurance shall provide coverage. Agencies or political subdivisions presenting homogenous risks may join together to purchase insurance protection or to provide other means of meeting obligations for damages as provided by this act.

(11) Laws allowing the state or its agencies or subdivisions to buy insurance are still in force and effect and are not restricted in any way by the terms of this act.

(12) Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a complaint in the court of appropriate jurisdiction within four years after such claim accrues.

(13) No action may be brought against the state or any of its agencies or subdivisions by anyone who unlawfully participates in a riot, unlawful assembly, public demonstration, mob violence, or civil disobedience if the claim arises out of such riot, unlawful assembly, public demonstration, mob violence, or civil disobedience. Nothing in this act shall abridge traditional immunities pertaining to statements made in court.

History.-§1 , ch . 73-313. •Note.- Effective January 1, 1975.

2039


*768.29 Submission of claims · for administrative settlement.-

(!) Any person who sustains personal injury or damage to or loss of property as a result of the negligence, wrongful act, or omission of any state agency or county or employee of either when the employee is acting within the scope of his office or employment, under circumstances in which a private individual would be liable to a private person or persons, may file a claim for recovery for an amount not in excess of $1,000 as provided in this act. Any claim for an amount not in excess of $1,000 may be submitted only to the affected state agency or board of county commissioners and shall not be submitted to the legislature. As used in this subsection, "agency" means the executive departments of state government.

(2) Subject to the provisions of this act, any denial, award, compromise, settlement, or determination made pursuant to this act shall be fmal and conclusive on the claimant and upon the state or county and all officers of the state or county except when procured by means of fraud, and shall constitute a complete release of any claim against the state or county.

(3) Claims must be filed with the agency or county which the claim is against by the claimant or his agent or attorney. A duplicate of a claim against an agency shall be furnished to the Department of Administration. All claims filed shall set forth accurately and completely the facts and circumstances giving rise to the claim, describe the injury or damage and the time and place of its occurrence, cite the names and addresses of participants and witnesses, if known, and state the nature and amount of damages sought. All claims under this act must be filed within four years from the time the incident occurred, or the claim shall be forever barred. The Department of Administration shall

2040

establish mm1mum procedures and rules applicable to state agencies which shall guarantee due process to all parties to a claim filed under this act.

(4) The claim shall be considered by the affected agency, and the head of said agency shall determine if there is reasonable justification for the· claim. The affected agency may seek the advice of the attorney general. The affected agency shall make a decision on the claim within sixty days after the claim has been filed. Accepted claims shall be paid from the budget of the affected agency. If the claim is rejected, the affected agency shall notify the claimant. Arejection by the affected agency shall be deemed final denial of the claim for the purposes of this act.

(5) The affected agency shall report to the Department of Administration all claims paid or denied under this act, stating the name of each claimant, the amount claimed, the amount awarded, and a brief description of the claim. The Department of Administration shall report this information to the legislature annually.

(6) CLAIMS AGAINST A COUNTY.-All boards of county commissioners shall approve or disapprove and cause to be paid, if approved, claims against the county not to exceed $1,000. A rejection by-the county shall be deemed a final denial of the claim for the purposes of this act. Rules and procedures for responding to claims may be made by each board of county commissioners pursuant to §125.018.

History .-§§2, 3, ch. 73-313. *Note.-Effective January 1, 1975.

768.30 Effectiveness.- Sections 768.28 and 768.29 shall take effect January 1, 1975, and shall apply only to incidents occurring on or after that date.

History.-§4, ch. 73-313.

HAZARDOUS OCCUPATIONS Ch. 769

CHAPTER 769

HAZARDOUS OCCUPATIONS

769.01 Employers affected by fellow servant act.

769.02 Liability of certain persons and corporations for injuries from negligence of fellow servants.

769.03 Recovery for injuries where employee and employer both at fault; damages; negligence of fellow servant.

769.01 Employers affected by fellow servant act.-This chapter shall apply to persons engaged in the following hazardous occupations in this state; namely, railroading, operating street railways, generating and selling electricity, telegraph and telephone business, express business, blasting and dynamiting, operating automobiles for public use, boating, when boat is propelled by steam, gas or electricity. History.-~! . ch. 6521, 1913; RGS 4971; CGL 7058.

cf.-Ch. 440, Workmen 's compensation law.

769.02 Liability of certain persons and corporations for InJuries from negligence of fellow servants.-The persons mentioned in §769.01 shall be liable in damages for injuries inflicted upon their agents and employees, and for the death of their agents and employees caused by the negligence of such persons, their agents and servants, unless such persons shall make it appear that they, their agents and servants have e~ercised all ordinary and reasonable care and diligence, the presumption in all cases being against such persons. Hlotory.-~2. cb. o521. 1913; RGS 4972; CGL 7059.

769.03 Recovery for injuries where employee and employer both at fault; damages; negligence of fellow servant.-The persons mentioned in §769.01 shall not be liable in damages for injuries to their agents and employees, or for the death of such agents and employees, where same is done by their consent, or is caused by their own negligence. If the employees or agents injured or killed, and the persons mentioned in §769.01, or their agents and employees are both at fault, there

769.04 Doctrine of assumption of 'risk abrogated.

769.05 Proceeds of recovery for injuries exempt from garnishment and execution.

769 .06 Contracts limiting liability invalid.

may be a recovery, but the amount of the recovery shall be such a proportion of the entire damages sustained, as the defendant's negligence bears to the combined negligence of both the plaintiff and the defendant; provided, that damages shall not be recovered for injuries to an employee injured in part through his own negligence and in part through the negligence of another employee, when both of such employees are fellow servants, where the former and latter are jointly engaged in performing the act causing the injury and the employer is guilty of no negligence contributing to such injury.

lllotory.-§3, ch. 6521, 1913; RGS 4973; CGL 7060.

769.04 Doctrine of assumption of risk abrogated.-The doctrine of assumption of risk shall not obtain in any case arising under the provisions of this chapter, where the injury or death was attributable to the negligence of the employer, his agents or servants.

Jllotory.-i4, cb. 6521, 1913; RGS 4974; CGI. 7061.

769.05 Proceeds of recovery for injuries exempt from garnishment and execution.Writs of garnishment, execution or other processes, shall not issue out of any court to reach any money due or likely to become due as damages under the provisions of this chapter.

Hletory.-§5, cb. 6521, 1913: RGS 4975; CGL 7062.

769.06 Contracts limiting liability invalid. -Any contract, contrivance or device whatever, having the effect to relieve or exempt the persons mentioned in §769.01 from the liability prescribed by this chapter shall be illegal and void.

Hlstory.-§6, eh. 8521, lUJ; ROB 4976; COL 7063.

2041

Ch. 770 CIVIL ACTIONS FOR LIBEL Ch. 770

CHAPTER 770 CIVIL ACTIONS FOR LIBEL

770.01

770.02

770.03

Notice condition precedent to action or prosecution for libel. .

Correction, apology, or retractiOn by newspaper.

Civil liability of radio broadcasting stations, etc.

770.01 Notice condition precedent to. ~ction or prosecution for libel:-~efor~ any CIVIl action is brought for pubhcat10n, m a newspaper or periodical, of a libel, t~e p~aintiff shall,, at least five days before instltutmg such act~on, serve notice in writing on defendant, spect~ying the article, and the statements therem, which he alleges to be false and defamatory.

Hl•torJ'.-11, cb. 16070, 1933; CGL 1936 Supp. 7064(1) . cf.-1836.07, Criminal prosecution for libel.

770.02 Correction, apology, or retraction by newspaper.-If it appears upon the trial that said article was published in good faith, that its falsity was due to an honest mistake of the facts and that there were reasonable grounds for believing that the state!lle!lts in said article were true, and that wtthm ten days after the service of said notice a f_ull and fair correction, apology and retraction was published in the same editions or . co~responding issues of the newspaper or pert?dtcal in which said article appeared, and m as conspicuous place and type as was said original article, then the plaintiff in such case shall recover only actual damages.

Hl•toi"J'.-12, cb. 16070, 1933; CGL 1936 Supp. 7064(2). cf.-1836.08, Criminal provision.

770.03 Civil liability of radio broadcasting stations, etc.-The owner, lessee, licensee or operator of a radio broadcasting station shall have the right, but shall not be compelled, to require the submission of a written copy of any statement intended to be broadcast over such station twenty-four hours before the time of the intended broadcast thereof; and when such owner, lessee, licensee or operator has so required the submission of such copy, such. owne.r, lessee, licensee or operator shall not be hable 111 damages for any libelous or slanderous utterance made by or for the person or party submitting a copy of such proposed broadcast wh~ch is not contained in such copy; but this section shall not be construed to relieve the person or party, or the agents or servants of such person or party, making any such libelous or slanderous utterance from liability therefor.

Hlstoi"J'.-111-3, cb. 19616, 1939; CGL 11140 Bupp. 70N( .. ); 11. ch . 20869, 1941 ; 17. ch. 22858, 1945.

770.04 Civil liability of radio or television broadcasting stations; care to prevent publication or utterance required.-The owner, licensee, or operator of a radio or television broadcasting station, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in

770.04 Civil liability of radio or television broadcasting stations; care to prevent publication or utterance required.

770.05 Limitation of choice of venue. 770.06 Adverse judgment in any jurisdiction

a bar to additional action. 770.07 Cause of action, time of accrual. 770.08 Limitation on recovery of damages.

or as a part of a radio or television broadcast, by one other than such owner, licensee or operator, or general agent or employees thereof, unless it shall be alleged and proved by the complaining party, that such owner, licensee, operator, general agent or employee, has failed to exercise due care to prevent the publication or utterance of such statement in such broadcasts, provided, however, the exercise of due care shall be construed to include the bona fide compliance with any federal law or the regulation of any federal regulatory agency.

Hlstory.-U, ch. 23802, 1947; §1 , ch . 25278 , 1949 .

770.05 Limitation of choice of venue.-No person shall have more than one choice of venue for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one edition of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.

Hlstory.-§1, ch. 67-52.

770.06 Adverse judgment in any jurisdiction a bar to additional action.-A judgment in any jurisdiction for or against the plaintiff upon the substantive merits of any action for damages founded upon a single publication or exhibition or utterance as described in §770.05 shall bar any other action for damages by the same plaintiff against the same defendant founded upon the same publication or exhibition or utterance.

History.-§2, ch. 67-52.

770.07 Cause of action, time of accrual.The cause of action for damages founded upon a single publication or exhibition or utterance, as described in §770.05, shall be deemed to have accrued at the time of the first publication or exhibition or utterance thereof in this state.

Rlatory.-13, ch. 67-52.

770.08 Limitation on recovery of damages. -No person shall have more than one choice of venue for damages for libel founded upon a single publication or exhibition or utterance, as described in §770.05, and upon his election in any one of his choices of venue, then he shall be bound to recover there all damages allowed him.

BlatOrJ'.-1•. cb. 67-52.

2042

ACTIONS FOR ALIENATION OF AFFECTIONS. ETC. Ch. 771

CHAPTER 771

ACTIONS FOR ALIENATION OF AFFECTIONS, ETC.

771.01 Certain tort actions abolished. 771.04 No act done in state to give cause of

action. 771.05 Unlawful to file certain causes of ac

tion.

771.01 Certain tort actions abolished.-The rights of action heretofore existing to recover sums of money as damage for the alienation of affections, criminal conversation, seduction or breach of contract to marry are hereby abolished.

Hlato17 .-11, ch. 23188, 1946.

771.04 No act done in state to give cause of action.-N o act hereafter done within this state shall operate to give rise, either within or without this state, to any of the rights of action abolished by this law. No contract to marry hereafter made or entered into in this state shall operate to give rise, either within or without this state, to any cause or right of action for the breach thereof.

Hletor;r.-14, ch. 23188, 11146.

771.05 Unlawful to file certain causes of action.-It shall hereafter be unlawful for any person, either as a party or attorney, or an agent or other person in behalf of either, to file or serve, cause to be filed or served or threaten to file or serve, or to threaten to cause to be filed or served, any process or pleading, in any court of the state, setting forth or seeking to recover a sum of money upon any cause of action abolished or barred by this law, whether such cause of action arose within or without the state.

Hlato17.-16, ch. 23138, 1946.

771.06 Validity of certain contracts.-All contracts and instruments of every kind, name, nature or description, which may hereafter be executed within this state in payment, satisfaction, settlement or compromise of any claim or cause of action abolished or barred by this law, whether such claim or cause of action arose within or without this state, are hereby declared to be contrary to the public policy of this state and absolutely void. It shall be unlawful to cause, induce or procure any person to execute such a contract or instrument; or cause, induce

771.06 Validity of certain contracts. 771.07 Penalties. 771.08 Construction of law.

or procure any person to give, pay, transfer or deliver any money or thing of value in payment. satisfaction, settlement or compromise of any such claim er cause of action; or to receive, take or accept any such money or thing of value as such payment, satisfaction, settlement or compromise. It shall be unlawful to commence or cause to be commenced, either as party or attorney, or as agent or otherwise in behalf of either, in any court of this state, any proceeding or action seeking to enforce or recover upon any such contract or instrument, knowing it to be such, whether the same shall have been executed within or without this state; provided, however, that this section shall not apply to the payment, satisfaction, settlement or compromise of any causes of action which are not abolished or barred by this law, or any contracts or instruments heretofore executed, or to the bona fide holder in due course of any negotiable instrument which may be hereafter executed.

Hl•tor;r.-16, ch. 23188, 11146.

771.07 Penalties.-Any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor of the second degree, punishable as provided in §775.082 or §775.083.

History.-§7, ch . 23138, 1945; §698, ch . 71 -136.

771.08 Construction of Iaw.-This law shall be liberally construed to effectuate the objects and purposes thereof and 'the public policy of the state as hereby declared. This law shall supersede all laws and parts of laws, inconsistent with this law, to the extent of such inconsistency, but in all other respects shall be deemed supplemental to such laws and parts of laws. Nothing contained in this law shall be construed as a repeal of any of the provisions of the penal law or the code of criminal procedure or of any other law of this state relating to criminal or quasicriminal actions or proceedings.

Bt.toi'J'.-111, I , cb. 23131, lHa.

2043

-

TITLE XLIV CRIMES

CHAPTER 775

DEFINITIONS; GENERAL PENALTIES; REGISTRATION OF CRIMINALS 775.01 775.02 775.03 775.04

775.08 775.081

Common law of England. Punishment of common law offenses. Benefit of clergy. What penal acts or omissions not pub

lic offenses. Felonies and misdemeanors defined. Classifications of felonies and misde-

meanors. 775.082 Penalties for felonies and misde

meanors. 775.083 Fine in lieu of, or in addition to, other

criminal penalty. ·

775.01 Common law of England.-The common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment, shall be of full force in this state where there is no existing provision by statute on the subject.

Hlator;r.-§1, Nov. 6, 1829; 11, Feb. 10, 1832; RS 2369; GS 8194; RGS 6024; CGL 7126. cf.-12.01, Common law In force.

1817.29, Punishment for common law fraud or cheat.

775.02 Punishment of common law offenses. -When there exists no such provision by statute, the court shall proceed to punish such offense by fine or imprisonment, but the fine shall not exceed five hundred dollars, nor the imprisonment twelve months.

Hlator;r.-tl, Nov. 6, 1829; RS 2370; GS 8196; RGS 60::16; CGL 7127.

775.03 Benefit of clergy.-The doctrine of benefit of clergy shall have no operation in this state.

Hlator;r.-176, Feb. 10, 1832; RS 2371; GS 8196; RGS 6026; CGL 7128.

775.04 What penal acts or omissioiUI not public offenses.-Acts or omissions to which a pecuniary penalty is attached, recoverable by action by a person for his own use or for the use, in whole or in part, of the state or of a county or a public body, or of a corporation, are not public offenses within thP- meaning of these statutes.

Hlstory.-RS 2349 ; GS 3173; ROS 5002; COL 7101 .

775.08 Felonies and misdemeanors defined.-Every crime under Florida law shall be either a felony or a misdemeanor. Any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by death or imprisonment in the state penitentiary is a felony, and no other crime shall be so considered. The classification of a criminal offense as a felony under this section is not altered by the statutory desig'

775.084 Subsequent felony offenders; extended terms.

775.11 Procedure in prosecutions for second and subsequent offenses.

775.12 Limitation of repeal as to criminal cases.

775.13 Registration of convicted felons, exemptions; penalties.

775.14 Limitation on withheld sentences.

nation of an alternate place and period of imprisonment or by the addition of any other type of penalty. Every criminal offense that is not a felony as provided in this section is a misdemeanor.

History.-§1(11 ), ch. 1637, 1868; RS 2352; GS 3176; RGS 5006; CGL 7105; § 1, ch. 71-136.

775.081 Classifications of felonies and misdemeanors.-

(1) Felonies are classified, for the purpose of sentence and for any other purpose specifically provided by statute, into the following categories:

(a) Capital felony; (b) Life felony; (c) Felony of the first degree; (d) Felony of the second degree; and (e) Felony of the third degree.

A capital felony and a life felony must be so designated by statute. Other felonies are of the particular degree designated by statute. Any crime declared by statute to be a felony without specification of degree is of the third degree, except that this provision shall not affect felonies punishable by life imprisonment for the first offense.

(2) Misdemeanors are classified, for the purpose of sentence and for any other purpose specifically provided by statute, into the following categories:

(a) Misdemeanor of the first degree; and (b) Misdemeanor of the second degree.

A misdemeanor is of the particular degree designated by statute. Any crime declared by statute to be a misdemeanor without specification of degree is of the second degree.

(3) This section is supplemental to, and is not to be construed to alter, the law of this state establishing and governing criminal offenses that are divided into degrees by virtue of dis-

2044

DEFINITIONS; GENERAL PENALTIES; REGISTRATION OF CRIMINALS Ch. 775

tinctive elements comprising such offenses, regardless of whether such law is established by constitutional provision, statute court rule or court decision. '

History.-§2, ch. 71-136; §1 , ch. 72-724.

775.082 Penalties for felonies and mis-demeanors.- ,

(1) .A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than t~e?ty-five calendar years before becoming ebgible for parQle unless the proceeding held to determine_ sentence according to the procedure set forth m §921.141 results in findings by the court that such person shall be punished by death, and in the latter event such person shall be punished by death. . · (2) In t_he event the death penalty in a capItal ~elony IS held to be unconstitutional by the Flonda Supreme Court or the United States Supreme Court, a person convicted of a capital felony shall be punished by life imprisonment as provided in subsection (1). . (3) In ~he event the death penalty in a capItal ~elony IS held to be unconstitutional by the Flonda Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment as provided in subsection (1).

(4) A person who has been convicted of any other designated felony may be punished as follows: ·

(a) . For a life felo?-y, by a term of imprisonment m the state pnson for life or for a term of years not less than 30;

~b) _For a felo?y of the first degree, by a term ?f rmpnsonment m the state prison not exceedmg 30 years or, when specifically provided by statute, by imprisonment in the state prison for a term of years not exceeding life imprisonment;

(c) ~or ~ felony o~ the second degree, by a term of rmpnsonment m the state prison not exceeding 15 years;

(d) ~or a;t felony ~f the third degree, by a term of Impnsonment m the state prison not exceeding 5 years.

(5) A person who has been convicted of a designated misdemeanor may be sentenced as follows:

(a) For a misdemeanor of the first degree, by a definite term of imprisonment in the county jail not exceeding 1 year;

(b) For a misdemeanor of the second degree, by a definite term of imprisonment in the county jail not exceeding 60 days.

(6) Nothing in this section shall be construed to alter the operation of any statute of this state authorizing a trial court, in its discretion, to impose a sentence of imprisonment for an indeterminate period within minimum and maximum limits as proVided by law, except as

provided in subsection (1). History.-§3, ch. 71-136; §§1, 2, ch. 72-118; §2, ch. 72-724.

775.083 Fine in lieu of, or in addition to, other criminal penalty.-A person who has been convicted of a crime, other than a capital felo_ny, may be sentenced, when specifically designated by statute, to pay a fine in lieu of or in addition to any punishment described in §775.082. Fines for designated crimes shall not exceed:

(1) $10,000, when the conviction is of a felony of the first or second degree;

(2) $5000, when the conviction is of a felony of the third degree;

(3) $1000, when the conviction is of a misdemeanor of the first degree;

( 4) $500, when the conviction is of a mis-demeanor of the second degree;

(5) Any higher amount equal to double the pecuniary gain derived from the offense by the offender or double the pecuniary loss suffered by the victim.

(6) Any higher amount specifically autho-rized by statute.

History.-§4. ch. 71-136.

775.084 Subsequent felony offenders; extended terms.-

(1) Unless otherwise specifically provided by statute, the court may sentence a person who has been convicted of a felony within this state to punishments provided in this section if it finds all the following:

(a) The imposition of sentence under this section is necessary for the protection of the public from further criminal activity by the defendant.

(b) The defendant is over seventeen years of age at the time sentence is to be imposed under this section.

(c) The defendant has previously committed a felony in this state or another qualified offense which was committed after the defendant's seventeenth birthday. For the purpose of this subsection, the term "qualified offense" includes any crime in violation of a law of another state or of the United States that was punishable under the laws of such state or the United States at the time of its commission by the defendant by death or imprisonment exceeding one year.

(d) The felony for which the defendant is to be sentenced was committed within five years of the date of the commission of the last prior felony or other qualified offense of which he was convicted, or within five years of the defendant's release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later.

(e) The defendant has not received a pardon

2045

Ch. 775 DEFINITIONS; GENERAL PENALTIES; REGISTRATION OF CRIMINALS

on the ground of innocence for any felony or other qualified offense that is necessary for the operation of this section.

(f) A conviction of a felony or other qualified offense necessary to the operation of this section has not been set aside in any postconviction proceeding.

(2) Under this section a person whose guilt of the commission of a felony under Florida law has been legally established and has been granted probation without an adjudication of guilt and vyho, during such probationary period, has commJtted the felony for which he is to be sentenced, shall have the felony for which the probation was granted treated in the same manner as a conviction thereof in the event the probation is not revoked and an adjudication of guilt is not made prior to the imposition of such sentence.

(3) The court, in conformity with the criteria specified in subsection (1), may sentence the convicted felon to the state penitentiary as follows:

(a) In the case of a felony of the first degree for life; '

(b) In the case of a felony of the second degree, for a term of years not exceeding 30;

(c) In the case of a felony of the third degree, for a term of years not exceeding 10.

(4) If the court decides that imposition of sentence under this section is not necessary for the protection of the public, sentence shall be imposed without regard to this section.

(5) A sentence imposed under this section shall not be increased after such imposition.

History.-§5, ch . 71-136.

same person the court shall sentence him to the punishment prescribed in §775.09 or §775.10 as the case may be, and shall vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated.

(3) Whenever it shall become known to any warden or prison, probation, parole or police officer or other peace officer, that any person charged with or convicted of a felony has been previously convicted within the meaning of §775.09 or §775.10 he shall forthwith report the facts to the state attorney for the county.

History.-§3, ch. 12022, 1927; CGL 7108; §32, ch. 73-334.

775.12 Limitation of repeal as to criminal cases.-No offense committed, and no penalty and forfeiture incurred, prior to the taking effect of these statutes, shall be affected thereby, and no prosecution had or commenced, shall be abated thereby, except that when any punishment, forfeiture or penalty shall have been mitigated by the provisions of these statutes, such provisions shall apply to and control any judgment or sentence to be pronounced, and all prosecutions shall be conducted according to the provisions of law in force at the time of such further prosecution and trial applicable to the case.

Hlstory.-RS 2353 ; GS 3177; RGS 5007 ; COL 7109 .

775.13 Registration of convicted felons, exemptions; penalties.-

(!) Any person who has been convicted of a felony in any court of this state shall within forty-eight hours after entering any county in this state, register with the sheriff of said county and shall be fingerprinted, photographed

775.11 Procedure in prosecutions for sec- and list the crime for which convicted, place of ond and subsequent offenses.- conviction, sentence imposed, if any, name,

(1) If at any time after sentence or con- aliases, if any, address, and occupation. viction it shall appear that a person convicted (2) Any person who has been convicted of of a felony has previously been convicted of a crime in any federal court or in any court of crimes as set forth either in §775.09 or §775.10 a state other than Florida, or of any foreign the state attorney for the county in which such state or country, which crime if committed in conviction was had shall file an information Florida would be a felony, shall forthwith accusing said person of such previous convic- within forty-eight hours after entering any tions, whereupon the court in which such con vic- county in this state register with the sheriff of tion was had shall cause said person, whether said county; in the same manner as provided confined in prison or otherwise, to be brought for in subsection (1) of this section. before it and shall inform him of the allegations (3) Any person who is presently within contained in such information and of his right any county of the state as of the effective date to be tried as to the truth thereof, according to of this section, shall likewise be required to law, and shall require such offender to say register with the sheriff of such county within whether he is the same person as charged in thirty days after the effective date of this such information or not. section, if such person would be required to

(2) If he says he is not the same person or register under the terms of subsections (1) refuses to answer or remains silent, his plea, or or (2), hereof, if he or she were entering such the fact of his silence, shall be entered of county. record and a jury shall be empaneled to (4) In lieu of registering with the sheriffs inquire whether the offender is the same per- of the several counties of the state as required son mentioned in the several records as set by this section, such registration may be made forth in such information. If the jury finds with the department of law enforcement, that he is the same person or if he acknowl- and shall be subject to the same terms and conedges or confesses in open court after being ditions as required for registration with the duly cautioned as to his rights that he is the several sheriffs of the state. Any person so

2046

DEFINITIONS; GENERAL PENALTIES; REGISTRATION OF CRIMINALS Ch. 775

registering with the department of law enforcement shall not be required to make further registration in any county in the state.

(5) The provisions of this law shall not apply to any person who:

(a) Has had his civil rights restored; or (b) Has received a full pardon for the of

fense for which convicted, or (c) Whose conviction of a felony was more

than ten years prior to the time provided for registration under the provisions of this law, and who has been lawfully released from incarceration under a felony conviction and sentence for more than five years prior to such time for registration unless such person is a fugitive from justice on a felony charge, or

(d) Is a parolee or probationer under the supervision of the Florida Parole and Probation Commission, or is a probationer under the supervision of any county probation officer of the state, or who has been lawfully discharged from such parole or probation.

(e) Is a parolee or probationer under the supervision of the United States parole commission which parole commission knows of and

consents to the presence of such person in Florida, or is a probationer under the supervision of any federal probation officer in the state, or who has been lawfully discharged from such parole or probation.

(6) Failure of any such convicted felon to comply with this section shall constitute a mjsdemeanor of the second degree, punishable as provided in §775.082 or §775.083.

(7) All laws and parts of laws in conflict herewith are hereby repealed, provided that nothing in this section shall be construed to affect any law of this state relating to registration of criminals where the penalties are in excess of those imposed by this section.

mstory.-lf1-7, ch. 57-18; 11. ch. 57-371; 11. ch. 83-181; 11. ch. 65-453; §3. ch. 67-2207; §§20, 33, 35, ch. 69-106; §699, ch. 71-136.

775.14 Limitation on withheld sentencee.Any person receiving a withheld sentence upon conviction for a criminal offense, and such withheld sentence has not been altered for a period of five years, shall not thereafter be sentenced for the conviction of the same crime for which sentence was originally withheld.

Blstorr.-11, ch. 57-284.

2047

Ch. 776 PRINCIPALS AND ACCESSORIES; A'ITEMPTS

CHAPTER 776

PRINCIPALS AND ACCESSORIES; ATTEMPTS

776.011 Principal in first degree. 776.03 Accessory after the fact.

776.011 Principal in first degree.-Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, is a principal in the first degree and may be charged, convicted and punished as such, whether he is or is not actually or constructively present at the commis· sion of such offense.

Hlstory.-11. ch. 57-310.

776.03 Accessory after the fact.-Whoever, not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity to the offender, maintains or assists the principal or accessory before the fact, or gives the offender any other aid, knowing that he has committed a felony or been accessory thereto before the fact, with intent that he shall avoid or escape detection, arrest, trial or punishment, shall be deemed an accessory after the fact, and shall be guilty of a felony of the third degree, punishable as provided in §775.082, §775.083, or §775.084.

Blatol')'.-§6, aub-ch. 11, ch. 188'1, 1888; RS 2858; GS 3180; RGS 5010; CGL 7112; §700, ch. 71-136. cf.-1806.10, Obstructing extlnguliJhment of tlre.

§910.13 Jurisdiction and venue; accessory after the fact.

776.04 Attempts, generally.- Whoever attempts to commit an offense prohibited by law

776.04 Attempts, generally.

and in such attempt does any act toward the commission of such an offense, but fails in the perpetration, or is intercepted or prevented in the execution of the same, shall, when no express provision is made by law for the punishment of such attempt, be punished as follows: .

(1) If the offense attempted is a capital or life felony, the person convicted shall be guilty of a felony of the second d_egree, punishable as provided in §775.082, §775.083, or §775.084.

(2) If the offense attempted is a felony of the first or second degree, the person convicted shall be guilty of a felony of the third degree, punishable as provided in §775.082, §775.083, or §775.084.

(3) If the offense attempted is a felony of the third degree, the person convicted shall be guilty of a misdemeanor of the first degree, punishable as provided in §775.082 or §775.083.

(4) If the offense attempted is a misdemeanor of the first or second degree, the person convicted shall be guilty of a misdemeanor of the second degree, punishable as provided in §775.-082 or §775.083.

History.-§8, sub-ch . 11, ch. 1637, 1866; .RS 2594; GS 3517; RGS 5403; CGL 7544; §701, ch. 71·136; §1, ch. 72-245; §1 , ch. 73-142. cf.-§806.04 Arson, fourth degree.

§806.05 Certain acts constituting attempts to burn.

2048

Ch. 779 TREASON AND OFFENSE AGAINST THE GOVERNMENT Ch. 779

CHAPTER 779

TREASON AND OFFENSE AGAINST THE GOVERNMENT

779.01 779.02 779.03 779.04

779.05 779.06 779.07

779.08 779.09 779.10 779.11

Treason. Misprision of treason. Combination to usurp government. Combination against part of the people

of the state. Inciting insurrection. Definitions. Intentional injury to or interference

with property. Intentionally defective workmanship. Attempts. Conspirators. Witnesses' privileges.

779.01 Treason.-Treason against the state shall consist only in levying war against the same, or in adhering to the enemies thereof, or giving them aid and comfort. Whoever commits treason against. this state shall be guilty of a felony of the first degree, punishable as provided in §775.082, §775.083, or §775.084.

Hiatory.-§§1, 2, sub-ch. 2, ch. 1637, 1868; RS 2372; GS 3197; RGS 5027; CG L 7129; §702, ch. 71-136.

779.02 Misprision of treason. - Whoever having knowledge of the commission of treason conceals the same and does not, as soon as may be, di sclose and make known such treason to the governor or one of the justices of the supreme court or a judge of the circuit court, shall be judged guilty of the offense of misprision of treason, a felony of the third degree, punishable as provided in §775.-082, §775.083, or §775.084.

Hlstory.-§2, sub-ch. 2, ch. 1637, 1868; RS 2373; GS 3198; RGS 5028; CGL 7130; §703, ch. 71 -136.

779.03 Combination to usurp government.!£ two or more persons shall combine by force to usurp the government of this state, or to overturn the same, or interfere forcibly in the administration of the government or any department thereof, the person so offending shall be guilty of a felony of the second degree and punished as provided in §775.082, §775.083, or §775.084.

Hletory.-§5, sub-ch. 2, ch. 1637, 1868; RS 2374; GS 3199; RGS 5029; CG L 7131; §704, ch . 71-1 36.

779.04 Combination against part of the people of the state.-If two or more persons shall combine to levy war against any part of the people of this state, or to remove them forcibly out of this state, or to remove them from their habitations to any other part of the state by force, or shall assemble for that purpose, every person so offending shall be guilty of a felony of the third degree, punishable as provided in §775.082, §775.083, or §775.084.

Hletory.-§6, sub-ch. 2, ch. 1637, 1868; RS 2375; GS 3200; RGS f>O:!O; CGL 7 132; §705, ch. 71-136.

779.05 Inciting insurrection.-If any person shall incite an insurrection or sedition amongst any portion or class of the population of this state, or shall attempt by writing,

779.12 779.13

779.14 779.15

779.16 779.17 779.18 779.19 779.20 779.21

Unlawful entry on property. Questioning and detaining suspected

persons. Closing and restricting use of highway. Penalty for going upon closed or re-

stricted highway. Rights of labor. Relation to other statutes. Construction. Effective period of law. Short title. Public mutilation of flag.

speaking or by any other means to incite such insurrection or sedition, the person so offending shall be guilty of a felony of the second degree, punishable as provided in §775.082, §775.083, or §775.084. Hlatory .-~3, ch. 1466, 1866; RS 2376; GS 8201; RGS

5031; CGL 71 33; §706, ch. 71- 136.

779.06 Definitions.-As used m §§779.06-779.19:

(1) "Highway" includes any private or public street, way or other place used for travel to or from property.

(2) "Highway commissioners" means any individual, board or other body having authority under then existing law to discontinue the use of the highway which it is desired to restrict or close to public use and travel.

(3 ) "Public utility" includes any pipe line, gas, electric, heat, water, oil, sewer, telephone, telegraph, radio, railway, railroad, airplane, transportation, communication or other system, by whomsoever owned or operated for public use. Hletory.-~1, ch. 20252, 1941.

779.07 Intentional injury to or interference with property.-Whoever intentionally destroys, impairs, or injures, or interferes or tampers with, real or personal property and such act hinders, delays, or interferes with the preparation of the United States, any country with which the United States shall then maintain friendly relations, or any of the states for defense or for war, or with the prosecution of war by the United States, is guilty of a life felony, punishable as provided in §775.082. History.-~2 , ch. 20252, 1941; §707, ch. 71-136; §4, ch . 72-724.

779.08 Intentionally defective workmanship. -Whoever intentionally makes or causes to be made or omits to note on inspection any defect in any article or thing with reasonable grounds to b-elieve that such article or thing is intended to be used in connection with the preparation of the United States or of any country with which the United States shall then maintain friendly relations, or any of the states for defense or for war, or for the prosecution of war by the United States, or that such article or thing is one of a number of similar articles or

2049

Ch. 779 TREASON AND OFFENSE AGAINST THE GOVERNMENT Ch. 779

things, some of which are intended so to be used, shall be guilty of a felony of the second degree, punishable as provided in §775.082, §775.083, or §775.084; provided, if such person so acts or so fails to act with the intent to hinder, delay or interfere with the preparation of the United States or of any country .with which the United States shall then maintain friendly relations, or of any of the states for defense or for war, or with the prosecution of war by the United States, the minimum punishment shall be imprisonment in the state prison for not less than one year.

History.-§:J, ch . 20252, 194 1; §708, ch . 7 1-136.

779.09 Attempts.-Whoever attempts to commit any of the crimes defined by this law shall be liable to one-half the punishment by imprisonment, or by fine, or both, as prescribed in §779.08 hereof. In addition to the acts which constitute an attempt to commit a crime under the law of this state, the solicitation or incitement of another to commit any of the crimes defined by this law not followed by the commission of the crime, the collection or assemblage of any materials with the intent that the same are to be used then or at a later time in the commission of such crime, or the entry, with or without permission, of a building, enclosure or other premises of another with the intent to commit any such crime therein or thereon shall constitute an attempt to commit such crime.

Hlator-,..-14, eh. 20252, 1941.

779.10 Conspirators.-If two or more persons conspire to commit any crime defined by this law, each of such persons is guilty of conspiracy and subject to the same punishment as if he had committed the crime which he conspired to commit, whether or not any act be done in furtherance of the conspiracy. It shall not constitute any defense or ground of suspension of · judgment, sentence or punishment on behalf of any person prosecuted under this section, that any of his fellow conspirators has been acquitted, has not been .arrested or convicted, is not amenable to justice or has been pardoned or otherwise discharged before or after conviction.

Hlator-,..-15, eh. 20252, 1941.

779.11 Witnesses' privileges. - No person shall be excused from attending and testifying, or producing any books, papers, or other documents before any court, magistrate, referee or grand jury upon any investigation, proceeding or trial, for or relating to or concerned with a violation of any section of this law or attempt to commit such violation, upon the ground or for the reason that the testimony or evidence, documentary or otherwise required by the state may tend to convict him of a crime or to subject him to a penalty or forfeiture; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence. documentary or otherwise, and no testimony so given or produced

shall be received against him, upon any criminal investigation, pri>ceeding or trial, except upon a prosecution for perjury or contempt of court, based upon the giving or producing of such testimony.

Hlator;r.-16, eh. 20252, 1941.

779.12 Unlawful entry on property.-Any individual, partnership, association, corporation, municipal corporation or state or any political subdivision thereof engaged in, or preparing to engage in, the manufacture, transportation or storage of any product to be used in the preparation of the United States, or of any country with which the United States shall then maintain friendly relations, or of any of the states for defense or for war or in the prosecution of war by the United States, or the manufacture, transportation, distribution or storage of gas, oil, coal, electricity or water, or any of said natural or artificial persons operating any public utility, whose property, except where it fronts on water or where there are entrances for railway cars, vehicles, persons or things, is surrounded by a fence or wall, or a fence or wall and buildings, may post around his or its property at each gate, entrance, dock or railway entrance and every one hundred feet of water front a sign reading "No Entry Without Permission." Whoever without permission of such owner shall willfully enter upon premises so posted shall be guilty of a misdemeanor of the second degree, punishable as provided in §775.082 or §775.083.

History.-§7, ch. 20252, 1941; §709, ch. 71 -136.

779.13 Questioning and detaining suspected persons.-Any peace officer or any other person employed as watchman, guard, or in a supervisory capacity on premises posted as provided in §779.12 may stop any person found on any premises to which entry without permission is forbidden by §779.12 and may detain him for the purpose of demanding, and may demand, of him his name, address and business in such place. If said peace officer or employee has reason to believe from the answers of the person so interrogated that such person has no right to be in such place, said peace officer shall forthwith release such person or he may arrest such person without a warrant on the charge of violating the provisions of §779.12; and said employee shall forthwith release such person or turn him over to a peace officer, who may arrest him without a warrant on the charge of violating the provisions of §779.12.

Hletory .-18, ch. 20252, 1941.

779.14 Closing and restricting use of highway.-

(1) Any individual, partnership, association; corporation, municipal corporation or state or any political subdivision thereof engaged in or preparing to engage in the manufacture, transportation or storage of any product to be used in the preparation of the United States, or of any country with which the United States shall then maintain friendly relations or

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