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Task force hears from court-appointed guardian attorneys, guardians

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Guardianship Improvement Task ForceAs it prepares to begin its deliberations, the Guardianship Improvement Task Force has heard from attorneys appointed to represent alleged incapacitated persons (AIPs) in guardianship proceedings and from family and professional guardians.

The task force, initiated and supported by the Florida Court Clerks & Comptrollers, met online September 14 to hear its last testimony before it begins deliberating for its final report to the Legislature on September 23. That meeting will be in Tallahassee.

Attorneys Jeffrey Eisel of Clearwater and Mary Wimsett of Gainesville talked about the duties of court-appointed attorneys for AIPs in guardianship proceedings. Eisel said state law requires an attorney be appointed for all potential wards in initial guardianship proceedings.

“Their rights are paramount to what the court-appointed attorney is supposed to do,” he said. “You represent this person, and their wants are what your job is.”

He cited a Fourth District Court of Appeal ruling (Erlandsson v. Erlandsson, 296 So. 3d 431) that held even if the court-appointed attorney thinks a proposed guardianship is in the AIP’s best interest, the attorney is professionally obligated to defend against the guardianship if that is what the AIP wants.

Both Eisel and Wimsett said they meet face to face with the AIP (and recently via Zoom or FaceTime if that can’t be done), talk with relatives, and otherwise investigate the proposed guardianship when appointed to a case.

“I am concerned to hear there are allegations [made to the task force] that court-appointed attorneys are rubber stamping guardianships. That is certainly not the case in the Eighth Circuit,” Wimsett said. “If I feel a guardianship is unwarranted, I do not hesitate to file the required pleadings.”

Both attorneys said cases in which there are disputes or controversies are the exception, and frequently even the AIPs agree that a partial or complete guardianship is needed, or the AIP is incapacitated and incapable of communicating.

“The court-appointed attorney’s job is to go out and make sure what the guardianship attorney has alleged is true,” Eisel said.

Wimsett said fees for the court-appointed attorney are paid by the attorney seeking the guardianship and that compensation is important to ensure a professional level of review. Eisel said in his circuit when the AIP is indigent, the court-appointed attorney gets a flat $400 fee for work that can take “tens of hours” and he regards such cases almost as pro bono work that ensure the integrity of the system.

The task force also heard from two family guardians, identified only as Julie and Heather. Both said being guardians for family members placed strains on them, including loss of income.

Julie oversees a partial guardianship for her 90-year-old father, who has dementia problems. She said her father’s care was complicated after her mother died and her father began seeing a woman 25 years younger. The woman advised her father to skip some medical appointments, not take his memory medication, and also spent his money.

Julie said she got a partial emergency guardianship, but the strain has meant she has had to stop working.

“Are there any cost-effective solutions when the [AIP’s] rights conflicts with what the doctors recommend, especially when there is a determination of dementia?” she asked, adding there should be compensation for loss of income and health-care access by the family guardian.

Julie said she didn’t even qualify for leave under the federal Family Medical Leave Act when she needed time to prepare for taking on guardianship responsibilities.

Heather said she became guardian for her grandmother after her father and aunt had a dispute about caring for their mother and they were dissatisfied with the services of a professional guardian. She said the job was personally taxing and a financial drain on her, but she was helped by the guardianship attorney.

Irene Rausch, a professional guardian since 1982, recommended that mandatory training for professional guardians be increased from 40 to 60 hours and also recommended mentoring for new guardians. While much testimony at the task force has focused on wrongdoing by professional guardians, she said probably 5% of guardians cause 75% of the problems and it’s wrong to focus on those few.

New professional guardians, Rausch said, are expected to begin by taking pro bono cases and many guardians have 30% to 50% of their caseload as pro bono work.

She also called for better training for attorneys, judges, and clerks’ inspector general staff that investigates complaints against guardians. She said the court monitor program in some circuits, which judges can use to investigate guardianships, should be expanded statewide.

Rausch advocated for a better statewide database on guardianships, higher fiduciary bonds when guardians take over large estates, and independent checking of guardian-filed inventories.

The testimony from the attorneys and guardians came after staff from Palm Beach County Clerk of Court Joe Abruzzo presented the office’s GIRAFF program, which is being tested as an online way for guardians to file reports and which can enhance oversight and spot potential problems.

Abruzzo said the system is designed to both enhance transparency of the guardianship system while still ensuring privacy of wards. It also provides for better compliance with reporting requirements and allows better tracking of cases.

Task force member Shannon Miller, a member of the Bar’s Elder Law Section, said she was concerned that once private information is entered into the program, it could become publicly available or otherwise be compromised.

“There is a very carefully vetted process for obtaining our clients very confidential information,” Miller said. “That does not exist when you put that information in an app, and I have real concerns about that.”

Task force member Sancha Brennan, a member of the Real Property, Probate and Trust Law Section, echoed that worry, including that protected attorney-client communications could wind up being accessible through the program.

But task force Vice Chair Anthony Palmieri, an inspector general for Abruzzo, said the program addresses those concerns and keeps attorney-client information out of court records.

The task force was created as an independent body earlier this year by the FCCC and charged with coming up with proposals to improve the state’s guardianship system in time for action in the Legislature’s 2022 session. The session starts January 11, and pre-session committee meetings start next week.

Task force Chair and Pinellas County Clerk of Court Ken Burke said task force members will have a preliminary report based on testimony and discussions at its meetings for its September 23 gathering.

Once the task force votes on a report, a smaller group will work on drafting legislation, Burke said. Brennan said the RPPTL and Elder Law sections would lend their expertise to the legislative drafting.

More information about the task force, including links to videos of its meetings and a form for public comments, is available on its webpage.

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