Legislature takes steps to rein in guardians
Legislature takes steps to rein in guardians
‘Some predators in this field have created their own cottage industry and are. . . taking advantage of the elderly’
When an 89-year-old woman’s daughter called the abuse hotline with the magic words, “I think my sister should be guilty of elder abuse,” the system lurched into action. A guardian was appointed to oversee the affairs of the elderly woman, who still lives in her Siesta Key home.
The court ordered a trust company to cut checks from her account and, so far, $635,000 has gone to attorneys, guardians, and others in her case, as chronicled by the Sarasota Herald-Tribune.
“They pay her bills, and they charge her $90 to open her mail each and every day….They cut off the family,” Sen. Nancy Detert, R-Venice, told members of the Senate Children, Families, and Elder Affairs Committee.
“Once you’re caught in the system, it’s pretty hard to get out. And they’re running through your assets pretty quickly. In fact, critics of the system call it ‘liquidate, isolate, and medicate.’”
The Department of Elder Affairs oversees public guardians for people without money. But when “wards” have assets, professional guardians are appointed, and they are not regulated. Detert said the industry in Florida has grown from 23 registered professional guardians in 2003 to more than 440 today — an 1,800 percent increase.
“Somebody has found a cottage industry, and they are not targeting the poor people,” Detert said. “So while they’re doing everything legally, they’re still managing to, in a little bit of a reckless way, take people that had a great life, worked hard, saved their money, and have substantial assets, through the guardianship program. They’re running through their assets and really throwing these people into poverty. What they can do, after they run through all your liquid assets, they can sell your home to continue being your guardian.”
Detert’s bill, SB 1226 (co-sponsored by Sen. Eleanor Sobel, D-Hollywood), and HB 1225 (co-sponsored by Rep. Larry Ahern, R-Seminole, and Kathleen Peters, R-St. Petersburg) would have required the Department of Elder Affairs to also regulate professional guardians and require each chief judge to give a list of professional guardians to the clerk for creation of a registry. When the House abruptly called it quits, Detert’s bill was a casualty, after passing unanimously out of three Senate committees.
What Detert called a “good first step” was the passage of HB 5, sponsored by Rep. Kathleen Passidomo, R-Naples.
Last legislative session, about 100 citizens spoke at the House Judiciary Committee about their concerns with Florida’s guardianship statutes, Passidomo said, and she promised to hold a public hearing on F.S. Ch. 744.
“Elder financial abuse is the crime of the 21st century, and it is rampant,” Passidomo said at a public panel discussion in Sarasota.
Over the summer, Passidomo worked with members of The Florida Bar Real Property, Probate and Trust Law Section, the Bar’s Elder Law Section, guardians around the state, and lawyers who practice in the area of guardianships.
“We set out with the following goals in mind: Prevent abuse of wards, punish abuses that do occur, provide appropriate oversight to evaluate guardianships, provide guardians with adequate credentials, and provide consistency in the enforcement of guardianship law,” Passidomo said.
“Lastly, to do all of those in a manner that is least intrusive to the wards.”
Rep. José Javier Rodriguez, D-Miami, explained the 25-page strike-all amendment at the House Judiciary Committee on March 26, just before the amended HB 5 passed unanimously: “A guardian is appointed once someone is incapacitated to manage their affairs. The guardian has a significant amount of responsibility, but also a considerable amount of power over the ward once they’re appointed. In terms of the potential for abuse, that has really come to light and was brought about by not just the media, but advocates and members of the Legislature.”
Four key changes would be made to the law, Rodriguez said:
* When an emergency temporary guardian is appointed, the court would not give preference to that guardian when considering who to appoint permanently. An exception can be made only when the court makes specific findings why the emergency temporary guardian should remain permanently. Where possible, appointments of guardians would be made on a rotation system.
* In protecting the rights and wishes of the ward, the ward’s unique abilities and needs will be recognized. The court would only remove those rights that the ward is not capable of exercising, leaving in place rights the ward is in a position to exercise. It makes clear how those rights are restored in the event the incapacitated person regains some capacity. Because wards have experienced isolation, relatives are allowed to petition for access to the ward, under the court’s supervision. It clarifies how to respect advanced directives and wishes the ward expressed prior to incapacitation.
* Oversight of guardians is strengthened and duties of the guardian are clarified.
The RPPTL Section supported HB 5 and was active in helping craft the language.
“It certainly has become a hot topic over the last couple of years in the Legislature,” said Bill Hennessey, chair of the RPPTL Legislative Committee on Probate, Trust, and Guardianship.
“I certainly applaud Rep. Passidomo for picking this issue up. On the guardianship abuse side, certainly those things happen. But there is always another side to the story. Our judiciary, by and large, does an incredible job in very difficult circumstances to make decisions dealing with our elderly in Florida,” said Hennessey, who practices in the area of probate, trust, and guardianship litigation.
“I definitely think most of our guardians — public, private, and even family members appointed by the court — are doing good and watching out for the wards under their care.”
He called it progress that there will be “more tools in the tool box for judges to address situations where fraud and abuse are occurring.”
Last year’s focus was on giving judges and clerks’ offices the ability to ferret out fraud and punish that fraud with criminal penalties.
“This year, the focus was more due-process oriented, to make sure the families’ voices are heard,” Hennessey said.
“The largest complaint coming through in the testimony before the Legislature was that the guardianship process was working in a manner where they felt like their voices weren’t being heard. Procedures will make certain family members will have a full hearing. In most instances, that is already happening. This codifies things and provides uniformity where an emergency temporary guardian is appointed….
“The issues for the judges are very difficult. Many instances are tug of wars between family members, and judges are doing an admirable job of looking out for the best interests of the vulnerable and elderly in the state,” Hennessey said.
Vocal critics of the system are members of a grassroots group called Americans Against Abusive Probate Guardianship, founded by Sam Sugar, an Aventura doctor of internal medicine. They have taken their stories to the Legislature, where lawmakers have listened and worked for changes in Florida’s guardianship laws.
One member of the group who testified at committees is Doug Franks from Atlanta, whose mother, Ernestine Franks, lives in Escambia County. Franks said he had wanted to serve as her guardian, but he said his brother in New Orleans consulted an attorney who advised setting up a trust to pay a professional guardian. He has chronicled his mother’s story on a website: FreeErnestine.com, and he has passed out booklets he’s written about her case.
“If we have laws and they’re not followed at the judicial level, what good are they?” Franks asked, while testifying at the House Judiciary Committee.
“In my mom’s case, she had all of her advance directives. She testified in court. She went to a memory clinic just two days before, and the neurologist said she had full capacity to make a decision as to who her guardian was and understood the ramifications. And the judge said, ‘I don’t think that’s best for Ms. Franks.’
“One million dollars spent since June 29 is why it’s not best. A thousand dollars a day is what my mom is spending,” Franks testified.
“Where is this going to? Well, $250,000 was spent on a non-licensed home care agency that the guardian selected…$227,000 has been spent on a law firm for the guardian …. I will see my mom Friday, Saturday, and Sunday. For the privilege to see me, she will pay $900 to a court-appointed supervisor. The court-appointed supervisor will be playing Words With Friends while she is making $100 an hour. I can prove that, by the way.”
As Detert told the Senate Children, Families, and Elder Affairs Committee: “Florida has some of the strongest laws in the nation, really great laws. But some predators in this field have created their own cottage industry and are crawling through the cracks in our otherwise very good laws and taking advantage of the elderly. Those little cracks in the law are allowing cockroaches to crawl through and take advantage of people who are elderly. Let’s face it. The elderly are today’s invisible people, who are not given much credence when they complain.”
Hennessey said the largest issue still being debated is how professional guardianships should be regulated. Though it was not a RPPTL initiative to create an Office of the Public and Professional Guardian, under the Department of Elder Affairs, as Detert’s bill sought to do, Hennessey said, “The section does believe it’s appropriate for the Legislature to address the regulation of professional guardians.”
Passidomo said she is committed to keeping a closer watch on guardianships and continuing to strengthen Florida’s laws.
“This is something very important to all of us, because as we age, we may be in the same boat a lot of our parents are,” Passidomo said.
“And, so, we have to have laws in place to protect them — and they’ll protect us.”