Recently, there has been a serious look at guardianship in Florida.
The Palm Beach Post has brought guardianship to the forefront among numerous complaints concerning widespread abuse by professional guardians, along with accusations against a Florida judge and his guardian wife for abusing the guardianship system.
Stealing money from wards, secluding people from their family, removing belongings from a house, attempting to annul a marriage, and paying off children who have been suspected of abusing their elderly parent are just a few of the accusations that have come down on professional guardians, and especially Elizabeth Savitt, Circuit Judge Martin Colin’s wife.
Because of the prevalence of these allegations, the Florida Senate is attempting to pass the Sunshine State’s first regulation – Senate Bill 232 – regarding court-appointed professional guardians of senior citizens and other incapacitated adults. Senator Nancy Detert, R-Venice is the bill’s sponsor, and believes it is the most important bill she will be presenting during this legislation.
“There is no regulation for private guardians who suddenly are preying upon the elderly,” Detert said, after also referring to unethical professional guardians as “cockroaches” of the legal system.
Last year, the Senate passed a bill with the aim to end favoritism among judges who leaned toward certain guardians, but reform advocates claim there has been little – if any – change.
Currently, guardians only have to pass a background credit check and complete a 40-hour training course in order to become a guardian and have access to seniors’ bank accounts. If Senate Bill 232 becomes a law, Florida will hire six new full time employees who will be responsible for supervising professional guardians. In recent years, professional guardians have seen their numbers increase practically 1,400 percent.
So let’s look at the current guardianship system and how it works – or doesn’t.
What is Guardianship?
Under Chapter 747 in the Florida Statutes, guardianship is the judicial proceeding where a circuit court can appoint a guardian, who can then make legal decisions for an incapacitated person – also called a ward.
In order for a guardian to be appointed, the incapacity of the ward needs to be determined by a 3-member committee that conducts physical and mental health evaluations along with a functional assessment. If a ward is incapacitated on any level – partially or fully – the court will appoint a guardian.
A guardian can be any adult resident of Florida who is related or unrelated to the ward. Sometimes a relative who lives outside of Florida is also allowed to be a guardian. And, as already discussed, there are also professional or public guardians available.
Once a guardian is appointed, that guardian is supposed to:
- Create an inventory of the property
- Carefully invest the property along
- Support the ward with the property
- Get approval for all financial transactions
- Record and file annual reports with the court
- Create a detailed plan for the ward’s care every year
Additionally, if the ward is unable to make personal decisions regarding health and medical care, the guardian will make those decisions on the ward’s behalf.
How is a Guardian Held Accountable?
A guardian is supposed to be held accountable for their actions and decisions regarding the ward. As mentioned above, a guardian will undergo a background check and will need to complete a 40-hour, court-approved training course. A guardian also needs to be represented by an attorney and is generally mandated to furnish a bond.
It is the clerk of courts’ job to review the plans and annual reports filed by the guardian to make sure they are properly carrying out his or her responsibilities. But, as previously mentioned, there aren’t enough people to oversee guardians and adequately look into how they are doing their job.
Are there Alternatives to Guardianship?
If you would rather have a say in who your guardian is as opposed to having someone appointed by the court, you have alternatives available to you. You can create a power of attorney, an advance health care directive, or even a trust in order to avoid the needs for the guardianship process.
That’s why it’s important to start thinking of these things now, while you’re still competent and able, as opposed to it being too late. The advantages of setting up an alternative to guardianship is that you can choose who you want to be responsible for your finances, property, health care, or anything else that arises. You can choose someone who you trust and discuss your wishes with them ahead of time so they will always be able to act in your best interest.
If Senate Bill 232 passes, though, the guardianship system may begin to see some essential changes that could improve guardianship for good.
About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.