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Guardianship task force gets a national perspective

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Guardianship Improvement Task ForceMichael Lincoln-McCreight is a former guardianship ward who has had his rights restored and now serves as a member of the Guardianship Improvement Task Force.

At the task force’s August 19 meeting, which was devoted to looking at recent reforms enacted in other states and hearing from two guardianship experts, Lincoln-McCreight wanted to know the selection process for the three members of competency committees who review potential wards in Florida guardianship cases and how “supportive” decisionmaking could be used to help wards retain some rights.

One of the experts, Sally Hurme, who recently retired from AARP and who teaches elder law at the University of Washington School of Law, replied that examination committees should look at previous documents executed by the potential ward.

“I think that advanced directives and financial powers of attorney are less restrictive alternatives [to full guardianship],” Hurme said. “I would encourage you to have statutory legislation to allow those self-selected decision makers to be honored, unless the court finds there has been some abuse by the agent, to allow the person to make their own decisions and pick their own decision makers.”

Erica Wood, the other expert and who recently retired from the ABA where she worked on elder law and guardianship issues, said examination committees should look at existing support for the potential ward.

“If the individual has a person who is helping them, a supporter, they may not need a guardianship,” she said. “Some states have provided recognition of supportive decision-making agreements.”

(Florida, unlike some other states, allows guardians to override pre-existing powers of attorney and advanced directives.)

Lincoln-McCreight’s question was one of several from task force members posed after they saw the review of what other states have done, and showed members thinking about their possible recommendations. They are scheduled to begin deliberations in another month.

The task force was set up by the Florida Court Clerks & Comptrollers and charged with making recommendations about Florida’s controversial guardianship process in time for the 2022 legislative session. The session begins in January and committee meetings begin next month.

Task Force member Shannon Miller, of the Bar’s Elder Law Section, asked about the importance of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. Florida is one of four states that has not passed UAGPPJA, which means its guardianships are not recognized in other state courts.

Hurme said passing the act is important because many Florida residents have property in other states, which can complicate guardianships.

“It makes it easier for courts [in different states] to communicate and work together to figure which will proceed. It saves resources for the ward [by eliminating duplicative proceedings],” she said.

Tom Hall

Tom Hall

Tom Hall, a consultant for the FCCC and who acts as staff for the task force, said not passing the uniform act causes problems because Florida has so many part-time residents and leads the nation in lost wills.

Miller said while the Elder Law Section has supported the uniform act, the Real Property, Probate and Trust Law Section has been skeptical and there has been no action in the Legislature.

Task force Chair and Pinellas County Clerk of Court Ken Burke asked what other states do to collect data about guardianships, including the number of cases handled by individual guardians.

Hurme said some local jurisdictions in Florida actually do better than many other states in creating case management systems and using technology to monitor guardianships. But she added there is a general dearth of information about who is subject to a guardianship, their age, and the amount of assets under guardianship management.

“You’re not alone in wanting more information to set policies,” she told Burke.

Task Force member Hillary Hogue, an advocate for guardianship wards and their families, said she is concerned about hospitals and medical facilities that petition to have patients placed in guardianships, a sentiment that has been expressed by other task force members. Hogue cited a case where a guardian was appointed, at $75 per hour, for one patient even though a family member was willing to act as guardian. The patient is 52 and the guardianship could last for decades, she said.

Hurme said some states have established web-based procedures for filing concerns about guardianships and added some sort of regular review is essential.

“There has to be the ability for a case to periodically come back to the court every three to four years to see if the guardianship is still needed or needs to be modified,” she said. “A periodic hands on look at the individual would resolve a lot of problems about guardianships seeming to last forever when there has been a significant change in the individual. As well it’s an opportunity for the public to raise their hand before the court where the court can understand if there is an ongoing issue.”

The questions and answers came after Hall provided an overview on guardianship reform legislation enacted in other states in the past year.

One theme is for supportive decisionmaking by wards.

“This is a trend that is occurring across the country,” Hall said. “People can still be, depending on their cognitive abilities, involved…in decisions that have to be made….

“Several states have statutorily recognized supported decisionmaking as an alternative to guardianship.”

Other state level changes include background checks for guardians, more checks before a full guardianships or emergency guardianships are established, and more review when a guardianship is to be extended for a minor who is becoming an adult.

“It is a trend across the country to have better notice before a guardian is appointed,” Hall said.

The state of Washington allows for jury trials for guardianship, mediation, and a way for a ward to object to the court-appointed guardian, he said. Minnesota enacted extensive reforms, including disclosure of rates guardians will charge.

Guardian fees are “a hot button issue,” Hall said.

Mississippi prevents a guardian from hiring an attorney if those fees would be a burden on the ward’s estate and Virginia allows reasonable costs for a guardianship to be charged to a petitioning hospital instead of against a ward’s assets, he said.

Another trend is to encourage wards’ participation in their cases.

“There’s a lot more emphasis on the person, even though they are a ward and they have a guardian, that they be able to participate and their well-being taken into account,” Hall said.

Hall’s PowerPoint presentation and the ABA report it was based on has been posted on the task force’s website here.

Interested parties are also invited to leave comments at the task force’s main webpage.

The task force’s next meeting will be online on September 2 from noon to 2:30 p.m. Viewing information is on the website.

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