Guardianship Improvement Task Force makes recommendations
Better data, more transparency, improved training among the proposals
Better data collection about guardianships in Florida and better information for the public about guardianships and alternatives are among the final recommendations of the Guardianship Improvement Task Force.
The task force, created by the Florida Court Clerks & Comptrollers, at its final meeting on September 23 also called for a closer look at how hospitals and nursing homes pursue guardianships for patients, providing all circuits with a way to allow judges to order an independent investigation of a guardianship, using supportive decisionmaking as an alternative to guardianships, and setting up a public statewide database on professional guardians that would include the number of cases they handle and disciplinary history.
And acknowledging that it only scratched the surface of guardianship issues, the task force recommended the Legislature set up a successor committee or task force that, if not permanent, would at least continue for several years to advise lawmakers on further reforms.
Pinellas County Clerk of Court Ken Burke
“This is a big issue. We never had the illusion we were going to solve all the problems with guardianships by having this task force,” said Pinellas County Clerk of Court and task force Chair Ken Burke as the meeting started. “But this task force can move the needle and start the process.”
The task force recommendations include:
• Creating a statewide database on guardianships that would include the number of guardianships; information about each case; how many cases professional guardians have, professional guardians’ disciplinary histories and whether they have been removed from a case by a judge; and demographic information about wards. Former Supreme Court Clerk Tom Hall, who acted as staff for the task force, noted a recent BuzzFeed series of articles on guardianships that found half of all states collect no information about guardianships and no state collects complete information to evaluate the guardianship system.
• Using uniform forms and paperwork for guardianships to allow better collection of data.
• Asking the Legislature to create a multi-year, if not permanent, committee or task force that could continue to study the guardianship process and recommend improvements. Members of the panel, like the task force, should represent a broad range of interests.
• Having every circuit in Florida set up a court monitor program, which is now used in some circuits. Although called a “court” monitor program, task force members noted it would be better called a “guardianship” monitor program because it allows a judge to appoint an independent monitor to review a guardianship, including assets under the guardian’s control, and submit a report to the court.
• Improving education and training for everyone involved in guardianship cases, including guardians, court clerk personnel, attorneys, judges, and the public.
• Overhauling F.S. 744, which governs guardianships, to remove archaic language such as “ward” with “person under guardianship.” Task force members said terms such as ward and alleged incapacitated person carry implications a person has no rights or is not functional. “To call someone ward or alleged incapacitated person, that puts you behind the eight-ball to begin with,” said task force member Hillary Hogue, an advocate for people who say family members have been victimized in guardianships.
• Ensuring that guardians selected when hospitals, nursing homes, and assisted living facilities seek guardianships for patients are not chosen by those facilities to prevent conflicts of interest, and that the facilities consider alternatives to guardianships. Task force members said that only begins to address issues, but that hospitals and nursing homes should be involved in the discussions and the entire matter needs a thorough review.
• Courts should consider lesser options, including supportive decisionmaking for a potential ward, before approving a guardianship.
• Providing better education about honoring powers of attorneys and advanced directives previously signed by wards when a guardianship is set up so the guardianship reflects their expressed interests about who should be in control of their lives.
• Making available online a database about professional guardians that includes their compliance with education requirements, registration, number of active cases, disciplinary history, and whether a judge has ever removed them from a guardianship for cause.
Task force members had lengthy discussions on the topics during the near seven-hour meeting.
During debate on the statewide guardianship database, task force member Shannon Miller of the Elder Law Section said she was concerned that family guardians could be publicly listed.
“If they become listed, everyone knows there is a guardianship established in their family,” she said. “I have a lot of clients who don’t want someone knocking on their door saying, ‘I want to see your mom to see if her rights should be restored.’ It’s incredibly embarrassing and humiliating to be someone who needs a guardianship.”
Other task force members said much of the data was likely to come from clerks of court who know how to protect sensitive information.
Strong support for supportive decisionmaking as an alternative to a full guardianship came from task force member Michael Lincoln-McCreight, who is a former ward.
“Supportive decisionmaking is an alternative to just throwing someone into a full guardianship,” he said. That can include using health-care surrogates, power of attorneys, and other tools that allow a person to maintain some control.
While other task force members said judges are required to consider options to full guardianships, Lincoln-McCreight and task force member Viviana Lopez, of Disability Rights Florida, said judges don’t always do that.
“Here’s where we have a major issue, some judges in the state of Florida are not looking at least restrictive options before they put people in guardianships,” Lincoln-McCreight said. “This is something that really needs to be addressed. If this was looked at before I was placed in a guardianship, I would have never been placed in a guardianship.”
“Many people put this superficial line in the sand, ‘This is incapacity.’ There’s no medical definition of what legal capacity is,” said task force Vice Chair Anthony Palmieri, a deputy inspector general for the Palm Beach County Clerk of Court and who investigates guardianships. “I’m supportive of moving this line…and using supportive decisionmaking to move that very subjective line to give people as much autonomy and the ability to exercise their rights as possible.”
Task force members had a related discussion about whether courts respect pre-existing powers of attorney and advanced health-care directives, including designation of surrogates, when considering a guardianship.
Miller and task force member Sancha Brennan of the Real Property, Probate and Trust Law Section said power of attorneys and advanced directives are typically honored in guardianships they set up. Task force member Gina Rossi-Scheiman, executive director of the Florida State Guardianship Association, said 90% of the cases she handles with power of attorneys or advanced directives have those honored.
Burke noted much of the public testimony taken by the task force was from residents who said they had family members whose power of attorneys and advanced directives were ignored when they were placed in guardianships and asked about the discrepancy.
Brennan replied that the practice can vary around the state. And task force member Sean Cadigan, a 13th Circuit magistrate, said in many cases, the documents are never submitted to the court because the POAs and advanced directives are honored and the need for a guardianship avoided. In other cases, he said, there have been questions whether the prospective ward had the capacity to execute the document, particularly if it was signed just before the guardianship proceedings.
There should be better education for judges, lawyers, and others in guardianship cases about respecting valid power of attorneys and advanced directives, task force members said, as well as data gathered about how often those documents are honored now.
Task force members expressed strong support for having a court monitor system available throughout the state.
“Each circuit should have a system, a procedure for court monitor appointment,” said Miller. “I just had a case and there’s absolutely no process in this circuit [to appoint a monitor].”
Task force members noted there are two monitor systems in Florida. The Ninth Circuit has an employee in the court administrator’s office who is appointed to investigate guardianships at no cost to the ward. Broward County uses private contractors who are reimbursed from the ward’s estate or if the ward is indigent perhaps by the state.
“Whatever the model is, whatever works best for each circuit, we need to track that and collect data to see which model is most efficient,” Palmieri said.
Task force members said they were concerned that if a guardian mishandles a ward’s estate, the ward could be billed for the court monitor.
Task force member and retired circuit Judge Jose Rodriguez said that’s like asking a burglary victim to pay for the police investigation.
“You’re asking people to pay for the investigation into how they’ve been harmed — and I think that is wrong,” he said.
Task force members acknowledged the issues surrounding hospitals, nursing homes, and assisted living facilities seeking guardianships is highly complex and needs detailed study. But they also said they were concerned about potential conflicts in the process.
Members noted hospitals can be faced with having a long-term patient with no family that needs to be moved to a nursing home to release a hospital bed and then having to initiate a guardianship proceeding. But they also expressed concern about conflicts if a hospital, nursing home, or ALS suggests or selects the guardian, since that guardian will be empowered to make medical decisions that affect the facility.
Hogue said she knows of a case in which the hospital agreed to pay the guardian’s fees, which she called a conflict.
Members agreed to recommend that the health facility should not choose the guardian and should be required to show they’ve considered alternatives to a full guardianship but said much more study is needed.
“This is a problem. The problem should be acknowledged, and work done on a solution,” Burke said. “It would be hard for us to go any further on this at this time.”
Task force members rated the priority of their recommendation on a scale of one to five, with five being the most urgent. With the exception of the language cleanup in F.S. Ch. 744, which they rated as one, everything was rated as a four or five.
The FCCC formed the task force last summer with the goal of recommending improvements for the state’s guardianship system in time for the 2022 legislative session. Although the FCCC staffed the task force, it told members they were free to make any recommendations they wanted.
Members included a cross sections of interests, including two legislators, a judge, a retired judge, lawyers, clerks of court, a professional guardian, a former ward, an advocate for families who have had members placed in guardianships, disability advocates, and others.
Its final report will be posted at the task force website.
A video of the entire September 23 meeting, as well as recordings of past meetings, is available on the task force’s YouTube Channel.
