FLORIDA PROFESSIONAL FIDUCIARIES ACT
470.6500
This chapter shall be known as the Florida Professional Fiduciaries Act.
470.6501
Legislative findings; intent.—The Legislature finds that the act of serving as a fiduciary is a skilled profession. The legislative purpose for enacting this chapter is to ensure that every professional fiduciary practicing in this state meets minimum requirements for competent practice; for the protection of the public interest in the proper conduct of fiduciary functions; and for the protection of the interests of beneficiaries and other members of the public using the services of, doing business with, or otherwise affected by professional fiduciaries in their conduct of business or other exercise of fiduciary functions or powers.
470.6502
Definitions
As used in this chapter, the following terms have the following meanings:
(a)“Act” means this chapter.
(b)“Board” means the Board of Professional Fiduciaries
(c)“Client” means an individual who is served, or whose legal or equitable interests are administered, by a professional fiduciary.
(d)“Department” means the Department of Business and Professional Regulation.
(e)“Licensee” means a person who is licensed under this chapter as a professional fiduciary.
(f) “Professional fiduciary” means a person who acts as a guardian of the person, guardian of the property, or guardian of the person and property, trustee, agent under a power of attorney, health care surrogate, conservator, and/or personal representative for more than three individuals and/or decedent’s estates at any particular time. This shall also include any professional guardian registered with the Department of Elderly Affairs under s. 744.1083.
In counting individuals or decedent’s estates under this paragraph to determine whether a person is a professional fiduciary:
(1)Individuals who are related to the fiduciary shall not be counted.
(2)All individuals who are related to each other shall be counted as one individual.
(3)All trust settlors who are related to each other shall be counted as one individual, and neither the number of trusts nor the number of beneficiaries of those trusts shall be counted.
(4) For purposes of this chapter “related” means related by blood, adoption, marriage.
“Professional fiduciary” does not include any of the following:
(A)A trust company, as defined in Chapter 658 or Chapter 662.
(B)An FDIC-insured institution, or its holding companies, subsidiaries, or affiliates. For the purposes of this subparagraph, “affiliate” means any entity that shares an ownership interest with, or that is under the common control of, the FDIC-insured institution.
(C)Any public agency as defined in Chapter 287, or other agency of the State of Florida or of a county of Florida.
(D)Any not for profit corporation serving as Trustee as authorized under s.617.2101, or charitable trust that is described in Section 501(c)(3) of the Internal Revenue Code and that charitable trust satisfies all of the following requirements:
(i)Is an organization described in Section 509(a)(1), Section 509(a)(2), or Section 509(a)(3) of the Internal Revenue Code.
(ii)Has been in existence for at least five years, and
(iii)Is acting as a trustee, incidental to the purposes for which it was organized.
(E)A person employed by or acting as an agent on behalf of an entity or agency described in subparagraph (A), (B), (C), or (D) who is acting within the course and scope of that employment or agency, and a public officer of an agency described in subparagraph (C) acting in the course and scope of official duties.
(F)Any person whose sole activity as a fiduciary is as a broker-dealer, broker-dealer agent, investment adviser, or investment adviser representative registered and regulated under the Investment Advisers Act of 1940 (15 U.S.C. Sec. 80b-1 et seq.), or the Securities Exchange Act of 1934 (15 U.S.C. Sec. 78a et seq.), or involves serving as a trustee to a company regulated by the Securities and Exchange Commission under the Investment Company Act of 1940 (15 U.S.C. Sec. 80a-1 et seq.).
(G) An member of The Florida Bar in good standing.
(H)Any person licensed as, and acting within the scope of practice of, a Florida certified public accountant pursuant to Chapter 473.
(I)Any person enrolled as an agent to practice before the Internal Revenue Service who is acting within the scope of practice pursuant to Part 10 of Title 31 of the Code of Federal Regulations.
(g) “Power of Attorney” means a writing that grants authority to an agent to act in the place of the principal, whether or not the term is used in that writing, and shall apply to all such writings except those described in s. 709.2103.
470.6503
(a)Every person who is required to register as a professional guardian with the Office of Statewide Public Guardian shall be required to obtain a license as a professional fiduciary under this chapter.
470.6510
The Board shall appoint an
executive director. The executive director must be a member of The Florida Bar, knowledgeable of trust, probate, power of attorney, guardianship, and other fiduciary law, shall serve on a full-time basis, and shall personally, or through representatives of the office, carry out the purposes and functions of the board in accordance with state and federal law. The executive director shall serve at the pleasure of and report to the Board.
470.6511
(a)Pursuant to this Act, the Professional Fiduciaries Board shall consist of nine members; five of whom shall be licensees actively engaged as professional fiduciaries in this state, and two of whom shall be active members of the Florida Bar and two of whom shall be public members. One of the public members shall be a member of a nonprofit organization or state agency or department advocating on behalf of financial abuse or exploitation.
(b)Each member of the Board shall be appointed for a term of four years, and shall hold office until the appointment of his or her successor or until one year shall have elapsed since the expiration of the term for which he or she was appointed, whichever first occurs.
(c)Vacancies shall be filled by the appointing power for the unexpired portion of the terms in which they occur. No person shall serve as a member of the committee for more than two consecutive terms.
(d)The Governor shall appoint the members of the Professional Fiduciaries Board and they shall be confirmed by the Senate. As the terms of the members expire, the Governor shall appoint successors for terms of 4 years, and such members shall serve until their successors are appointed.
(e)Every member of the Board shall receive per diem and expenses as provided in F.S. 112.061.
(f)The Board shall do all of the following:
(1)Examine the functions and policies of the Board and make recommendations with respect to policies, practices, and regulations as may be deemed important and necessary by the executive director to promote the interests of clients and that otherwise promote the welfare of the public. Protection of the public shall be the highest priority for the Board in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.
(2)Consider and make appropriate recommendations to the executive director in any matter relating to professional fiduciaries as defined in this Act.
(3)Provide assistance as may be requested by the executive director in the exercise of its powers or duties.
(4)Meet at least quarterly. All meetings of the committee shall be conducted pursuant to s.286.011.
(g)The Board shall meet and consult with the Executive Director regarding general policy issues related to professional fiduciaries.
470.6513
The Board may employ other employees as may be necessary to carry out the provisions of this chapter under the direction of the executive director .
470.6514
The Board shall keep a complete record of all its proceedings and all licenses issued, renewed, or revoked, and a detailed statement of receipts and disbursements as provided by law.
470.6515
The duty of administering and enforcing this chapter is vested in the Board and the executive director. In the performance of this duty, the Board and the executive director have all of the powers of, and are subject to all of the responsibilities vested in, and imposed upon, a regulatory board under Chapter 455.
470.6516
(reserved)
470.6517
Rule Making Authority: The Board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it, including, but not limited to a grace period for initial licensure of professional fiduciaries not to exceed 1 year from the enrollment of this act.
470.6518
(a)The Board shall be responsible for administering the licensing and regulatory program established in this chapter.
(b)The Board shall approve classes qualifying for prelicense education, as well as classes qualifying for annual continuing education required by this chapter. The Board shall maintain a current list of all approved classes and make this list available to the public.
(c)The Board shall arrange for the preparation and administration of licensing examinations.
470.6520
The Board shall adopt, by rule, a Professional Fiduciaries Code of Ethics. The Professional Fiduciaries Code of Ethics shall be consistent with all statutory requirements, as well as the common law. The Professional Fiduciaries Code of Ethics shall be provided electronically on the Board’s website and to persons who request an application for licensure. The Board may, by regulation, amend the Professional Fiduciaries Code of Ethics from time to time, as it deems necessary, provided that no amendment shall be effective with regard to a licensee until the licensee’s next annual license renewal cycle, as herein, is completed. Any amendment to the Professional Fiduciaries Code of Ethics shall be included in the license renewal materials sent to a licensee.
470.6530
(a)On and after January 1, 2017, no person shall act or hold himself or herself out to the public as a professional fiduciary, as defined in this Act, unless that person is licensed as a professional fiduciary in accordance with the provisions of this chapter.
470.6531
A professional fiduciary shall not operate with an expired, suspended, retired, canceled, or revoked license. A professional fiduciary must present evidence of that professional fiduciary’s valid, unexpired, unsuspended license upon request of any individual.
470.6532
Only a person who has been licensed by the Board may identify himself or herself or serve in the capacity of a “professional fiduciary”. Any person not licensed as a professional fiduciary in this state who acts or serves as a professional fiduciary or holds himself or herself out to the public as qualified to serve as a professional fiduciary in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to serve as a professional fiduciary in this state, commits the crime of exploitation, a felony punishable as provided in s. 825.103(3)b.
470.65325
1) MANDATORY REPORTING.—
(a) Any person, including, but not limited to, any:
1. Physician, osteopathic physician, medical examiner, chiropractic physician, nurse, paramedic, emergency medical technician, or hospital personnel engaged in the admission, examination, care, or treatment of individuals; or
2. Health professional or mental health professional other than one listed in subparagraph 1.; or
3. Practitioner who relies solely on spiritual means for healing; or
4. Nursing home staff; assisted living facility staff; adult day care center staff; adult family-care home staff; social worker; or other professional adult care, residential, or institutional staff; or
5. State, county, or municipal criminal justice employee or law enforcement officer; or
6. An employee of the Department of Business and Professional Regulation conducting inspections of public lodging establishments under s. 509.032; or
7. Florida advocacy council member or long-term care ombudsman council member; or
8. Bank, savings and loan, or credit union officer, trustee, or employee, who knows, or has reasonable cause to suspect, that an unlicensed individual is acting or serving as a professional fiduciary shall immediately report such knowledge or suspicion to the central abuse hotline as described in Chapter 415, Florida Statutes.
470.6533
In order to meet the qualifications for licensure as a professional fiduciary a person shall meet all of the following requirements:
(a)Be at least 21 years of age.
(b)Have not committed any acts that are grounds for denial of a license under s.470.6536
(c)Submit fingerprint images as specified in this section in order to obtain a level 2 screening pursuant to s.435.04.
(d)Have completed the required prelicensing education described in s. 470.6538.
(e)Have passed the licensing examination administered by the Board pursuant to s. 470.6539.
(f)Have at least one of the following:
(1)A baccalaureate degree of arts or sciences from a college or university accredited by a nationally recognized accrediting body of colleges and universities or a higher level of education.
(2)An associate of arts or sciences degree from a college or university accredited by a nationally recognized accrediting body of colleges and universities, and at least three years of experience working as a professional fiduciary or working with substantive fiduciary responsibilities for a professional fiduciary, public agency, financial institution, or attorney acting as a conservator, guardian, trustee, personal representative, health care surrogate or agent under a power of attorney. Such experience must be demonstrated by such documentation as the Board may require.
(3)Experience of not less than five years, prior to January 1, 2017 working as a professional fiduciary or working with substantive fiduciary responsibilities for a professional fiduciary, public agency, financial institution, or attorney acting as a conservator, guardian, trustee, personal representative, health care surrogate or agent under a power of attorney. Such experience must be demonstrated by such documentation as the Board may require.
(g)Agree to adhere to the Professional Fiduciaries Code of Ethics and to all statutes and regulations.
(h)Consent to the Board conducting a credit check on the applicant.
(i)File a completed application for licensure with the Board on a form provided by the Board and signed by the applicant under penalty of perjury.
(j)Submit with the license application a nonrefundable application fee, as specified in this chapter.
(k) The applicant must have obtained a fidelity bond in an amount of at least $50,000, payable to the Governor of the State of Florida. If a fidelity bond is unavailable generally, the department must adopt rules for alternative methods to comply with this paragraph. The applicant must have obtained errors and omissions insurance. The amount of the coverage must be at least $250,000 per claim and an aggregate limit with a deductible no greater than $50,000. If errors and omissions insurance is unavailable generally, the department shall adopt rules for alternative methods that comply with this paragraph. The fidelity bond and errors and omissions insurance must remain in effect and unimpaired as long as the person is licensed as a professional fiduciary. The licensee must provide written proof to the Board on an annual basis evidencing that the fidelity bond and errors and omissions insurance is still in effect and unimpaired.