Guardianship Improvement Task Force members discuss their recommendations

Magistrate Jude Sean Cadigan
The Guardianship Improvement Task Force made some valuable recommendations to the Legislature and provided an important outlet for people with grievances and concerns about Florida’s guardianship system, according to those who sat on the panel.
Following its September 23 in-person meeting, the task force’s final report is being drafted and circulated to members for comments, based on the several proposals members agreed to advance to the Legislature.
Because of its short duration, the task force did not make detailed recommendations or propose specific legislation. But it nonetheless made several proposals members say will improve the state’s guardianship laws, which have come under criticism in recent years after some high-profile stories of abuses.
“Anything we can do to make things better we should try,” said Sean Cadigan, a magistrate judge in the 13th Circuit’s probate and guardianship division. (Cadigan noted he was not representing his official position on the task force.) “This was a first effort and hopefully with the Legislature we’ll get their attention, and they’ll follow through.”
“I appreciate the breadth of people who came to the table and I appreciate the recognition that we have a problem and that the guardianship system in Florida is in a crisis,” said Viviana Lopez, an attorney with Disability Rights Florida.
She praised the Florida Court Clerks & Comptrollers, which created and staffed the task force and charged it with coming up with its own, independent recommendations to send to lawmakers. She and other members also praised the leadership of Pinellas County Clerk of Court Ken Burke, who chaired the task force and for the panel’s willingness to listen to public comments.

Shannon Miller
“I felt like the group of stakeholders [on the task force] were very engaged. They attended and they were interested in learning about the process,” said task force member Shannon Miller, a member of the Elder Law Section. “The last session we had, I felt we really developed a camaraderie that was very effective.”
As for the task force recommendations, “They really are the basic issues we do need to work on,” Miller said.
Some of what might appear to be the more mundane recommendations are perhaps the most important, members said, including creating a database on guardianships; better education for attorneys, professional guardians, clerk, judges, and others involved in the guardian system; and setting up a legislatively created, long-term body to provide advice on guardianship matters.
“There’s so many cracks in the guardianship system, to create these task forces for a short period of time and then just end them, that’s not what I feel we need to have,” said task force member Michael Lincoln-McCreight, a former guardianship ward. “We need to have a task force that meets consistently until the guardianship cracks are fixed.”
“The one I absolutely hope they pay attention to is the need to establish a statewide database on guardianships that could be of assistance to them and the courts and the public,” Cadigan said. “There are some limitations on the information that we can get under current law from the [state] Office of Professional and Public Guardianship [which regulates professional guardians] and just between circuits. If a professional guardian is removed in another circuit for malfeasance. . . we wouldn’t know. If there is a way to improve the sharing of information about professional guardians, that would be good to know.”

Sancha Brennan
Task force member Sancha Brennan, a member of the Real Property, Probate and Trust Law Section, said Florida — like many other states — doesn’t have a collection of basic information on the overall number of guardianship cases, how many guardians are family members and how many are professional guardians, and the number of cases handled by each professional guardian.
Brennan said, though, that while collecting information will be valuable, precautions must be taken both in any statewide database and in local court files to protect a ward’s privacy.
“A neighbor shouldn’t be able to look into a court file and find a bank account number, or medical or mental-health diagnosis,” she said.
Brennan also said a section task force that last year recommended changes to guardianship laws called for better education for lawyers and professional guardians as well and endorsed expanding the court monitor program, which allows judges to appoint an independent investigator into how a guardianship has been handled. Although current law provides for appointments of a court monitor in a guardianship proceeding, monitor programs are available in some, but not all, circuits in Florida. The task force said all circuits should have that ability.
Miller also likes the court monitor proposal.
“I would like to see the court monitor program implemented more effectively across the state,” she said. “We have a process to have a court monitor appointed, but in most circuits there’s no court monitor list, there’s no resources to pay that court monitor.
“We need at least for every circuit to have some sort of process.”
Hillary Hogue, an advocate for wards and family members who have been victimized by guardianships, praised the task force for acknowledging there are problems but said its recommendations didn’t go far enough. She peppered her discussions and debate at task force meetings with examples she said showed professional guardians — and their attorneys — running up fees at the expense of wards’ estates while keeping family members from visiting the wards.
“I think first and foremost there should be a cap on fees,” Hogue said. “There is no reason an attorney should be making $250,000 in six months due to litigation.”
She cited another case where the guardian charged $250,000 in fees for 12 months and later was arrested for stealing from the ward.
“Something is wrong with that, especially when there are family members who are begging to be their loved one’s guardian,” Hogue said.
Brennan said she thought the task force missed some important topics, perhaps because it only met for a couple months.
One was the task force should have had a presentation on the RPPTL’s proposed overhaul of F.S. Ch. 745 (the Guardianship Code), finished last year and which the section will again be promoting in the Legislature this year.
“Ultimately, there are a number of options that were not discussed, there wasn’t enough time,” Brennan said. “For instance, voluntary guardianships. No one mentioned voluntary guardianships; it’s probably one of the more underutilized options.”
With that option, a person who still has capacity selects a guardian to manage all or some of their property. Unlike powers of attorney, she said voluntary guardians are under court supervision and must file annual accountings that are audited by the clerk.
She also said there’s a lack of uniformity in how guardianships are handled across various circuits — something the task force addressed by recommending uniform forms and paperwork.
“The laws that exist already are not uniformly applied and that’s one of the biggest problems,” Brennan said. “Local circuits will create their own local rules that vary from circuit to circuit and that aids in the law not being uniformly applied across the state.
“I think one of the goals in Florida will be to see we do that, that we have cohesive laws that are uniformly applied.”

Michael Lincoln-McCreight
Cadigan and Lincoln-McCreight said they particularly liked the task force endorsement of supportive decision-making, where wards pick advisors to help them make decisions and live independently, as an alternative to guardianships.
In 2016, Lincoln-McCreight became the first ward in Florida to end a full guardianship, in which he was placed in 2014, by using supportive decision-making.
“I like that they recommended supportive decision-making, that’s going to bring a lot of light to the guardianship system as to the least restrictive option,” he said.
Lopez, who along with Lincoln-McCreight, heads a coalition pushing for separate legislation on supportive decision-making, said that aligns with the aims of her organization.
“Our goal at Disability Rights Florida is for people not to be under guardianships,” she said. “We want people to make their own decisions and be authors of their own lives.”
Cadigan, who noted he was not serving on the task force in his official capacity as a magistrate, sees supportive decision-making as working in tandem with legislation passed last year to promote elder care coordination. That, he said, is an alternative dispute resolution method to help disagreeing family members and others reach an agreement in highly contested elder care cases.
“The supportive decision-making could be looked at with that, so we could look at how these cases could end up,” Cadigan said. “Maybe fewer people would wind up under guardianship.”
Task force members received plenty of feedback from the public. Most said they had family members who were or had been in guardianships where the professional guardians prevented family members from visiting them and took financial advantage of the wards.
If family members challenged the arrangement in court, the ward’s estate wound up paying the attorneys’ fees for the lawyer defending the guardian, they said.
Underscoring the complexity of the issues, the task force also heard from attorneys who recounted how family members were unable to agree on how to handle an ailing relative or who had been appointed guardians and abused the wards. That included family members who spent ward assets on things like vacations, gifts, home improvements, and other things that had little if any benefit for the ward.
The task force’s recommendations include:
• Creating a statewide database on guardianships, including the number of guardianships, number of cases handled by each professional guardian, and demographic information about wards.
• Using uniform paperwork between circuits to allow better data collection.
• Asking the Legislature to create a multi-year or permanent committee or task force to make continual guardianship recommendations.
• Having a court monitor program available in every circuit.
• Improving education and training for guardians, clerks, lawyers, judges, and the public.
• Eliminating potential conflicts when hospitals, nursing homes, and assisted living facilities are involved in seeking guardianships for their patients.
• Having courts consider less intrusive options such as supportive decision-making as alternatives to full guardianships.
• Providing better education about honoring powers of attorney and advanced health directives when guardianships are established.
• 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.
• Removing archaic language from state guardianship laws.
More information about the task force, including its final report when completed, can be found here.