HB 441 — Elder-focused Dispute Resolution Process

hb0441-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 441 2021 necessary to reach a resolution of ongoing disputes concerning the care and safety of the elder.

(e)(d) "Eldercaring coordination communication" means an oral or a written statement,statement or nonverbal conduct intended to make an assertion,assertion by,by between, or amongto thean parties,eldercaring participants,coordinator or individuals involved in eldercaring coordinatorcoordination made during thean course of eldercaring coordination activity, or before anthe eldercaring coordination activity if made in furtherance of eldercaring coordination.

The term does not include statements made during eldercaring coordination which involvePage the5 commission of a18 crime,CODING: the intent to commit a crime, or ongoing abuse, exploitation, or neglect of a child or vulnerable adult.

(f) "Eldercaring coordinator" means an impartial third person who is appointed by the court or designated by the parties and who meets the requirements of subsection (5).

The role of the eldercaring coordinator is to assist parties through eldercaring coordination in a manner that respects the elder's need for autonomy and safety.

(g) "Eldercaring plan" means a continually reassessed plan for the items, tasks, or responsibilities needed to provide for Page 6 of 21 CODING:

hb0441-02-c2hb0441-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 441 2021 involve the carecommission and safety of ana eldercrime, whichthe isintent modified throughout eldercaring coordination to meetcommit thea changingcrime, needsor ofongoing theabuse, elderexploitation, andor whichneglect takesof intoa considerationchild theor preferencesa andvulnerable wishesadult. of the elder.

(e) "Eldercaring coordinator" means an impartial third person who is appointed by the court or designated by the parties and who meets the requirements of subsection (5).

The role of the eldercaring coordinator is to assist parties through eldercaring coordination in a manner that respects the elder's need for autonomy and safety.

(f) "Eldercaring plan" means a continually reassessed plan for the items, tasks, or responsibilities needed to provide for the care and safety of an elder which is modified throughout eldercaring coordination to meet the changing needs of the elder and which takes into consideration the preferences and wishes of the elder.

(h)(g) "Good cause" means a finding that the eldercaring coordinator:

Has engaged in circumstances that compromise the integrityPage 6 of eldercaring18 coordination;CODING:

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hb0441-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB 441 2021 integrity of eldercaring coordination;

(i)(h) "Legally authorized decisionmaker" means an individual designated, either by the elder or by the court, pursuant to chapter 709, chapter 744, chapter 747, or chapter 765 who has the authority to make specific decisions on behalf of the elder who is the subject of an action.

(j)(i) "Participant" means an individual who isjoins eldercaring coordination by invitation of or with the consent of the eldercaring coordinator but who has not filed a partypleading Pagein 7the ofaction 21from CODING:which the case was referred to eldercaring coordination.

(j) "Party" includes the elder who is the subject of an action and any other individual over whom the court has jurisdiction.

(3) REFERRAL.— (a) Upon agreement of the parties to the action, the court's own motion, or the motion of a party to the action, the court may appoint an eldercaring coordinator and refer the parties to eldercaring coordination to assist in the resolution of disputes concerning the care and safety of the elder who is the subject of an action.

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hb0441-02-c2hb0441-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 441 2021 who(b) joinsThe eldercaringcourt coordinationmay bynot invitationrefer ofa orparty withwho thehas consenta history of thedomestic eldercaringviolence coordinatoror butexploitation whoof hasan notelderly filedperson ato pleadingeldercaring incoordination unless the actionelder fromand whichother theparties casein wasthe referredaction consent to eldercaringsuch coordination.referral.

(k) "Party" includes the elder who is the subject of an action and any other individual over whom the court has jurisdiction in the current case.

(3) REFERRAL.— (a) Upon agreement of the parties to the action, the court's own motion, or the motion of a party to the action, the court may appoint an eldercaring coordinator and refer the parties to eldercaring coordination to assist in the resolution of disputes concerning the care and safety of the elder who is the subject of an action.

(b) The court may not refer a party who has a history of domestic violence or exploitation of an elderly person to eldercaring coordination unless the elder and other parties in the action consent to such referral.

415.102, exploitation of Pagean 8elderly ofperson 21or CODING:disabled adult as defined in s.

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words underlined are additions.

hb0441-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 441 2021 an elderly person or disabled adult as defined in s.

If a party has a history of domestic violence or exploitation of an elderly person, the court must order safeguards to protect the safety of the participants and the elderPage and8 the elder's property, including, but not limited to, adherence to all provisions of an18 injunctionCODING: for protection or conditions of bail, probation, or a sentence arising from criminal proceedings.

(4) COURT APPOINTMENT.— (a) A court appointment of an eldercaring coordinator is for a term of up to 2 years and the court shall conduct review hearings intermittently to determine whether the term should be concluded or extended.

Appointments conclude upon expiration of the term or upon discharge by the court, whichever occurs earlier.

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hb0441-02-c2hb0441-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 441 2021 (b)elder Theand orderthe ofelder's appointmentproperty, byincluding, thebut courtnot shalllimited defineto, theadherence scopeto all provisions of thean eldercaringinjunction coordinator'sfor authorityprotection underor theconditions appointmentof inbail, theprobation, action,or consistenta withsentence thisarising section.from criminal proceedings.

(c)(4) TheCOURT orderAPPOINTMENT.—A shallcourt specifyappointment that,of notwithstandingan theeldercaring intermittentcoordinator reviewis hearingsfor undera paragraphterm (a),of aup partyto may2 moveyears and the court atshall anyconduct timereview duringhearings theintermittently periodto ofdetermine appointmentwhether forthe terminationterm ofshould thebe appointment.concluded or extended.

UponAppointments theconclude filingupon expiration of such a motion, the courtterm shallor timelyupon conductdischarge aby hearingthe tocourt, determinewhichever whetheroccurs toearlier. terminate the appointment.

Until the court has ruled on the motion, the eldercaring coordination process shall continue.

In making the determination, the court shall consider at a minimum:

1.

The efforts and progress of eldercaring coordination in the action to date;

2.

The preference of the elder, if ascertainable;

and 3.

Whether continuation of the appointment is in the best interest of the elder.

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hb0441-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 441 2021 c.

or g.Page 9 of 18 CODING:

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hb0441-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/HB 441 2021 g.

and c.

An eldercaringelder coordinatormediation training program certifiedthat meets standards approved and adopted by the Florida Supreme Court.

TheIf trainingthe mustFlorida totalSupreme atCourt leasthas 44not hoursyet andadopted mustsuch includestandards, advancedthe tacticsstandards for disputeelder resolutionmediation oftraining issuesapproved related to aging, illness, incapacity, or other vulnerabilities associated with elders, as well as elder, guardianship, and incapacityadopted lawby andthe proceduresAssociation andfor lessConflict restrictiveResolution alternativesapply; to guardianship;

phases of eldercaring coordination and thed. role and functions of an eldercaring coordinator;

Eldercaring coordinator training.

The training must total at least 28 hours and must include eldercaring coordination;

elder, guardianship, and incapacity law and procedures and less restrictive alternatives to guardianship as it pertains to eldercaring coordination;

at least 4 hours on the implications of elder abuse, neglect, and exploitation and other safety issues in eldercaring coordination;

multicultural competence and Pageits 11use ofin 21eldercaring CODING:coordination;

at least 2 hours of ethical considerations pertaining to eldercaring coordination;

use of technology within eldercaring coordination;

and court-specific eldercaring Page 10 of 18 CODING:

hb0441-02-c2hb0441-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 441 2021 itscoordination useprocedures. in eldercaring coordination;

at least 6 hours of the implications of elder abuse, neglect, and exploitation and other safety issues pertinent to the training;

at least 4 hours of ethical considerations pertaining to the training;

use of technology within eldercaring coordination;

and court-specific eldercaring coordination procedures.

Have met any additional qualifications the court may Pagerequire 12to ofaddress 21issues CODING:specific to the parties.

(b) A qualified eldercaring coordinator must be in good standing or in clear and active status with all professional licensing authorities or certification boards.

(6) DISQUALIFICATIONS AND REMOVAL OF ELDERCARING Page 11 of 18 CODING:

hb0441-02-c2hb0441-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 441 2021 requireCOORDINATORS.— to(a) addressAn issueseldercaring specificcoordinator must resign and immediately report to the parties.court if he or she no longer meets the minimum qualifications or if any of the disqualifying circumstances occurs.

(b) A qualified eldercaring coordinator must be in good standing or in clear and active status with all professional licensing authorities or certification boards to which the eldercaring coordinator is subject.

(6) DISQUALIFICATIONS AND REMOVAL OF ELDERCARING COORDINATORS.— (a) An eldercaring coordinator must resign and immediately report to the court if he or she no longer meets the minimum qualifications or if any of the disqualifying circumstances occurs.

(7) SUCCESSOR ELDERCARING COORDINATORS.—If an eldercaring Pagecoordinator 13resigns, is removed, or is suspended from an appointment, the court shall appoint a successor qualified eldercaring coordinator who is agreed to by all parties or, if the parties do not reach agreement on a successor, another qualified eldercaring coordinator to serve for the remainder of 21the CODING:original term.

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hb0441-02-c2hb0441-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 441 2021 coordinator(8) resigns,FEES isAND removed,COSTS.—The orcourt ismay suspendednot fromorder an appointment, the courtparties shallto appoint a successor qualified eldercaring coordinatorcoordination whowithout istheir agreedconsent tounless bythe allcourt partiesdetermines or,that if the parties dohave notthe reachfinancial agreementability on a successor, another qualified eldercaring coordinator to servepay for the remaindereldercaring ofcoordination thefees originaland term.costs.

(8)The FEEScourt ANDshall COSTS.–Thedetermine eldercaringthe coordinator'sallocation among the parties of fees shalland becosts paidfor ineldercaring equalcoordination portionsand bymay eachmake partyan referredunequal toallocation based on the eldercaringfinancial coordinationcircumstances processof byeach party, including the court.elder.

The order of referral shall specify which parties are ordered to the process and the percentage of the eldercaring coordinator's fees that each shall pay.

The court may determine the allocation among the parties of fees and costs for eldercaring coordination and may make an unequal allocation based on the financial circumstances of each party, including the elder.

Page(b) 14If ofa 21court CODING:finds that a party is indigent based upon the criteria prescribed in s.

57.082, the court may not order the party to eldercaring coordination unless funds are available to pay the indigent party's allocated portion of the eldercaring coordination fees and costs, which may include funds provided for that purpose by one or more nonindigent parties who consent to paying such fees and costs, or unless insurance coverage or Page 13 of 18 CODING:

hb0441-02-c2hb0441-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 441 2021 (b)reduced Ifor apro courtbono findsservices thatare aavailable partyto ispay indigentall basedor upona theportion criteriaof prescribedsuch infees s.and costs.

57.082, the court may not order the party to eldercaring coordination unless funds are available to pay the indigent party's allocated portion of the eldercaring coordination fees and costs, which may include funds provided for that purpose by one or more nonindigent parties who consent to paying such fees and costs, or unless insurance coverage or reduced or pro bono services are available to pay all or a portion of such fees and costs.

(9) CONFIDENTIALITY;CONFIDENTIALITY.— (a) Except as otherwise provided in this section, all communications made by, between, or among the parties, participants, and eldercaring coordinator during eldercaring coordination shall be kept confidential.

PRIVILEGE;(b) The eldercaring coordinator, participants, and each party designated in the order appointing the eldercaring coordinator may not testify or otherwise offer evidence about communications made by, between, or among the parties, participants, and eldercaring coordinator during eldercaring coordination, unless one of the following applies:

EXCEPTIONS.– (a) Except as provided in this subsection, all eldercaring coordination communications are confidential.

An eldercaring coordination party, participant, or eldercaring coordinator may not disclose an eldercaring coordination communication to a person other than another eldercaring coordination party, participant, or eldercaring coordinator, or a party's or participant's counsel.

A violation of this subsection may be remedied as provided in paragraph (g).

If the eldercaring coordination is court ordered, a violation of this subsection may also subject the eldercaring coordination participant to sanctions by the court, including, but not limited to, costs, attorney fees and costs, and eldercaring coordinator's fees and Page 15 of 21 CODING:

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hb0441-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 441 2021 costs.

(b) An eldercaring coordination party, participant, or eldercaring coordinator has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding eldercaring coordination communications.

(c) Notwithstanding paragraphs (a) and (b), there is no confidentiality or privilege attached to any signed written agreement reached during eldercaring coordination, unless the parties agree otherwise, or to any eldercaring coordination communication:

NecessarySuch communications are necessary to identify, authenticate, confirm, or deny a written and signed agreement entered into by the parties during eldercaring coordination.coordination;

NecessarySuch communications are necessary to identify an issue for resolution by the court,court including to support a motion to terminate eldercaring coordination, without otherwise disclosing communications made by any party,party participant, or the eldercaring coordinator.coordinator;

LimitedSuch communications are limited to the subject of a party's compliance with the order of referral to eldercaring coordination, orders for psychological evaluation, court orders orPage health14 careof provider18 recommendationsCODING: for counseling, or court orders for substance abuse testing or treatment.

4.

Necessary to determine the qualifications of an eldercaring coordinator or to determine the immunity and liability of an eldercaring coordinator who has acted in bad Page 16 of 21 CODING:

hb0441-02-c2hb0441-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 441 2021 faith or withhealth maliciouscare purposeprovider orrecommendations infor acounseling, manneror exhibitingcourt wantonorders and willful disregard for thesubstance rights,abuse safety,testing or propertytreatment; of the parties pursuant to subsection (11).

4.

The communications are necessary to determine the qualifications of an eldercaring coordinator or to determine the immunity and liability of an eldercaring coordinator who has acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard for the rights, safety, or property of the parties pursuant to subsection (11);

The parties agree maythat bethe disclosedcommunications orbe fordisclosed; which privilege against disclosure has been waived by all parties.

MadeThe incommunications theare eventnecessary the eldercaring coordinator needs to contactprotect personsany outsideperson offrom thefuture eldercaringacts coordinationthat processwould toconstitute givedomestic orviolence obtainunder informationchapter that741; furthers the eldercaring coordination process.

7.

That requires a mandatory report pursuant to chapter 39 or chapter 415 solely for the purpose of making the mandatory report to the entity requiring the report.

8.

Necessary to protect any person from future acts that would constitute domestic violence under chapter 741;

744.2004 or a review conducted under ss. 744.368(5).

9.744.368(5);

Offered7. to report, prove, or disprove professional misconduct alleged to have occurred during eldercaring coordination, solely for the internal use of the body conducting the investigation of such misconduct.

10.The communications are offered to report, prove, or disprove professional misconduct alleged to have occurred during eldercaring coordination, solely for the internal use of the body conducting the investigation of such misconduct;

Offered8. to report, prove, or disprove professional malpractice alleged to have occurred during eldercaring Page 17 of 21 CODING:

The communications are offered to report, prove, or disprove professional malpractice alleged to have occurred during eldercaring coordination, solely for the professional malpractice proceeding;

or 9.

The communications were willfully used to plan a crime, Page 15 of 18 CODING:

hb0441-02-c2hb0441-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 441 2021 coordinationcommit solelyor forattempt theto professionalcommit malpracticea proceeding.crime, conceal ongoing criminal activity, or threaten violence.

11.(c) Notwithstanding paragraphs (a) and (b), confidentiality or privilege does not attach to a signed written agreement reached during eldercaring coordination, unless the parties agree otherwise, or to any eldercaring coordination communication:

Willfully1. used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence.

(d)For Anwhich eldercaringthe coordinationconfidentiality communicationor disclosedprivilege underagainst anydisclosure provisionhas ofbeen subparagraphwaived (c)1.,by subparagraphall (c)2.,parties; subparagraph (c)5., subparagraph (c)8., or subparagraph (c)9.

is confidential and is not discoverable or admissible for any other purpose, unless otherwise permitted by this section.

(e) Information that is otherwise admissible or discoverable does not become inadmissible or protected from discovery by reason of its disclosure or use in eldercaring coordination.

(f) A party that discloses or makes a representation about a privileged eldercaring coordination communication waives that privilege, but only to the extent necessary for the other party or parties to respond to the disclosure or representation.

(g)1.

An eldercaring coordination party or participant who knowingly and willfully discloses an eldercaring coordination communication in violation of this subsection, upon application by any party to a court of competent jurisdiction, is subject to remedies, including:

a.

Equitable relief.

b.

Compensatory damages.

c.

Contribution to the other party's or parties' attorney Page 18 of 21 CODING:

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hb0441-02-c2 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HB 441 2021 fees and costs, the other party's or parties' portion of the eldercaring coordinator fees, and the other party's portion of the costs incurred in the eldercaring coordination process.

d.

Reasonable attorney fees and costs incurred in the application for remedies under this subsection.

NotwithstandingThat anyis otherwillfully law,used anto applicationplan fora reliefcrime, filedcommit underor thisattempt paragraphto maycommit not be commenced later than 2 years after the date on which the party had a reasonablecrime, opportunityconceal toongoing discovercriminal theactivity, breachor ofthreaten confidentiality,violence; but in no case more than 4 years after the breach.

or 3.

AnThat eldercaringrequires coordinationa partymandatory report pursuant to chapter 39 or participantchapter is415 notsolely subjectfor tothe apurpose civilof actionmaking underthe thismandatory paragraphreport forto lawfulthe complianceentity withrequiring s.the report.

119.07.

The eldercaring coordinator has made or will makebe making a report pursuant to chapter 39 or chapter 415;

787.01(1), upon an elder, or wrongfully removes or is removing the elder from the jurisdictionPage of16 the court without prior court approval or compliance with the requirements of s.18 CODING:

744.1098.

If the Page 19 of 21 CODING:

hb0441-02-c2hb0441-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 441 2021 eldercaringjurisdiction coordinatorof suspects that a party or family member has relocated an elder within this state to protect the eldercourt fromwithout aprior domesticcourt violenceapproval situation,or thecompliance eldercaringwith coordinator may not disclose the locationrequirements of thes. elder unless required by court order.

744.1098.

If the eldercaring coordinator suspects that a party or family member has relocated an elder within this state to protect the elder from a domestic violence situation, the eldercaring coordinator may not disclose the location of the elder unless required by court order.

(b) An eldercaring coordinator who is appointed by the court is not liable for civil damages for any act or omission within the scope of his or her duties under an order of referral unless such person acted in bad faith or with malicious purpose orPage in17 a manner exhibiting wanton and willful disregard for the rights, safety, or property of the18 parties.CODING:

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hb0441-02-c2hb0441-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 441 2021 (12)or MINIMUMin STANDARDSa ANDmanner PROCEDURES.—Theexhibiting Floridawanton Supreme Court shall establish minimum standards and procedureswillful disregard for the qualification,rights, ethicalsafety, conduct,or discipline,property and training and education of eldercaringthe coordinatorsparties. who serve under this section.

(12) MINIMUM STANDARDS AND PROCEDURES.—The Florida Supreme Court shall establish minimum standards and procedures for the qualification, ethical conduct, discipline, and training and education of eldercaring coordinators who serve under this section.

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