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Court monitor program for guardians explained to task force

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Guardianship Improvement Task ForceHow guardians — public, professional, and family — are monitored and investigated was the subject for the Guardianship Improvement Task Force’s September 2 meeting as it moves to begin deliberations by the end of the month.

The task force, organized and supported by the Florida Court Clerks & Comptrollers, heard from public and private court monitors, who are appointed by judges to investigate when there are claims a guardian has acted improperly.

Members also heard a report from the Department of Elder Affairs Office of Public and Professional Guardians on how guardians are regulated in Florida.

Two different types of court monitor programs were reviewed. Wynter Solomon-Culvert has been a court monitor for 16 years and is an employee of the Ninth Circuit Court Administrator’s Office, where she reports to the assistant general counsel.

Since she is paid by the state, when she investigates a guardian there is no charge against the ward’s estate. The overall cost of an investigation is also lower, Solomon-Culvert said, and there’s uniformity between cases since one person handles all of the investigations. Court monitors, Solomon-Culvert said, can be used in family, public, and professional guardianship cases.

Retired Palm Beach County Judge Stephen M. Cohen and Paulette Armstead explained how the private court monitor program works respectively in Palm Beach and Broward counties.

Armstead said private monitors must apply to the court, undergo a criminal background check, and sign a contract with the county to follow the law and rules and orders of the court. Compensation, she said, is set at $55 an hour and is paid from the ward’s assets. If the ward is indigent, the state Justice Administrative Commission may pick up the cost, or the monitor may do it pro bono, she said.

Like Solomon-Culvert, Armstead said appointment comes from judges on their own motion, which may be based on referral from a clerk, from a court-appointed attorney for the ward, or from a complaint from family members of the ward.

“In Broward County, court monitors act as independent investigators,” said Armstead in comments echoed by Cohen and Solomon-Culvert. “I have no ex parte communication with the judge after appointment to the case or with any other judge. During my one-on-one interviews with the guardian or ward, no attorney is present.”

She also said she can use court interpreters, auditors, and other assets in reviewing a case.

“The other part of being an independent monitor is the confidentiality of the monitor’s report. No other person or party can see the report in its draft stages,” Armstead said, again in comments duplicating Solomon-Culvert and Cohen. “It’s filed as a confidential document. Then parties will get copies of the report, along with attachments.”

Cohen called for changes in state law so that court monitor fees can be assessed against wrongdoers who harm a ward or the ward’s estate — whether it be professional, public, or family member guardians or others — instead of those fees being paid by the ward’s estate.

“What we have in Palm Beach County is family who serve as guardians and they see it as a feeding trough and their attorneys play a role in it,” Cohen said. “I recommend some statutory changes so we can recover fees from the offending parties if the offending party is not just the guardian. I want to see the ward made whole and the ward’s estate made whole.”

He said he typically waives fees if those will come from the ward because that only further harms a ward who has been victimized by a guardian or family member; but has accepted fees that are part of a restitution settlement from someone who harmed a ward.

Task Force member Jose Rodriguez, a retired probate judge, said the public monitor program in the Ninth Circuit ensures no costs to wards and “you are providing a consistent level of service that is subject to no attack because of being rich or poor. Everyone is treated the same, no one is out because they can’t afford the service.”

He said the Legislature should fund an independent court monitoring service the same as it pays for managers for drug and other problem-solving courts.

Task force member Shannon Miller, a member of the Elder Law Section, said she will make a motion at a future task force meeting to add a court monitor provision to the task force’s final report, based on the Broward County program.

Chante’ Jones, executive director of the Office of Public and Professional Guardians, told the task force there are three types of guardians: those who are family members and serve less than three wards, professional guardians who are paid from the assets of the ward, and public guardians who serve indigent wards and are paid by the state or county.

Jones said her office contracts with 17 public guardian offices stateside, registers and educates all professional guardians, and handles disciplinary complaints against professional guardians. Her office has no role in regulating family guardians.

Professional guardians must complete 40 hours of training and then 16 hours of continuing education every two years, undergo a level 2 background screening including fingerprinting by the FDLE, and have a repeat criminal history check every five years, Jones said. They must also provide a $50,000 fiduciary bond, and a judge in a large guardianship can require a higher bond.

Disciplinary investigations, after the Office of Public and Professional Guardians verifies a complaint is statutorily sufficient, is handled by the Statewide Investigative Alliance, a coalition of clerks of court offices that provide guardianship investigation and other oversight services, she said.

Punishment can range from letters of reprimand, requirements for additional education, restitution if necessary, suspension, or having the professional guardianship registration revoked.

In response to a question, Jones said her office does not compile or release disciplinary statistics, although records of cases are public information.

The public comments portion of the meeting demonstrated challenges commission members face. Past meetings have featured critics, including ward family members, saying guardians have too much power, they exclude visits from family members, and the system has financial incentives for guardians and their attorneys to unnecessarily prolong guardianships.

The September 2 meeting included attorneys defending the system and saying they frequently step in when family members have abused wards.

“Guardians and attorneys are not villains,” said elder law attorney Heather Kirson. She said she’s been stalked and threatened by family members when she was called in to handle or investigate cases, including one where a parent stole $100,000 from the ward’s estate and provided substandard care and food. The child has thrived since being placed in a group care home.

Kirson, and Twyla Sketchley, another elder care attorney, said the court monitor programs work to investigate problematic guardianships, but Sketchley said it’s underutilized.

She attributed that to judges and clerks not fully understanding the program, judges being reluctant to use it because of the cost to the ward, and the inability of many counties to afford to hire their own monitor if the ward can’t afford one.

Sketchley said during her work as a monitor — frequently done for free because the ward cannot pay — she has helped remove both professional and family guardians, recover lost money, and place wards in more appropriate and less restrictive care. Like Kirson, she said she has been stalked and threatened by family members.

Added Britton Swank, another elder law attorney, “Many of the abusive situations I’ve encountered — whether verbal, financial, or physical — the perpetrator has been a family member. There are family units where there is not a viable candidate for a fiduciary…or health-care decisionmaker or guardian.”

But Dr. Sam Sugar, who has spoken at previous meetings, said there are too many incentives to encourage abuses by professional guardians and their attorneys.

“It is the money involved in these large multimillion-dollar cases that enrich the court predators,” he said. “The system is infested with predatory lawyers whose main goal is not the safety of the individual, it is their pocketbook.

“We need to get rid of the incentives. The system is designed to continue the business of guardianships.”

Jane Pronovost, a professional guardian, said guardians are needed in cases where family members cannot agree how to take care of a relative or are fighting over the ward’s assets.

She recounted a case where a ward’s son acting as guardian sold two of her houses to finance his daughter’s top tier college education and to buy expensive gifts, while keeping the woman on a mattress on the floor in a room in his house.

Pronovost said she too has been threatened and stalked by wards’ family members and she called for better training on ethics and fiduciary responsibilities for both professional and family guardians.

The task force next meets online on September 16. It will meet in person for an all-day meeting in Tallahassee on September 23 to begin its deliberations.

Information about the task force, videos of its meetings, and a form to submit public comment can be found on its website.

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