Rightful Elder Care Guardians Find Hope in Senate Bill 1226

NEW YORK (MainStreet) — Julie Ferguson still owes some $5,000 to a Florida attorney she hired to help secure guardianship for her 80-year-old mother, Marise London.

“My sister is a convicted felon who tried to get durable power of attorney from my mother,” said Ferguson, who lives in Sarasota, Fla. “My mother assigned me to be her durable power of attorney, and I was the only link to stop the hemorrhaging of my mother’s life savings from being funneled to my sister's hometown in Tennessee.”

Instead of having Ferguson awarded guardianship as London legally requested, London’s daily life is governed by a professional guardian hired by the state and appointed by a Florida probate judge in 2013.  “Two elder law attorneys advised me to contact Elder Affairs, a state agency that referred me to the Department of Children & Families,” said Ferguson. “They recommended that a multi-million dollar corporation called Lutheran Services Florida become guardian of my mother's person and property.”

To this day, Ferguson is still fighting the court’s decision to appoint this third-party guardian. But a bill endorsed by the Senate committee last week may provide new protections for elderly Floridians who end up under a guardian’s supervision because of illness or mental incapacitation.

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Experts believe this bill is a move in the right direction.

“It will begin to solve some of these problems,” said Dr. Sam Sugar, founder of the Americans Against Abusive Probate Guardianship (AAAPG) in Miami. “However, what we have seen is statutes are routinely avoided or ignored in probate court and I personally view this whole exercise as only the first step in creating real reform and guardian discipline.”

Among its provisions, SB 1226 would allow courts to refer guardianship disputes among family members to mediation or an alternative dispute resolution and reduce the time of temporary guardianship from 90 days to 60 days.

“One of the temporary guardian’s responsibilities is to identify the assets of the elderly person, but because there can be so much money involved for them, they dawdle and have their days extended by the judge,” Sugar told MainStreet. “It’s a good idea to reduce their total commitment of days.”

Another portion of the bill requires that the appointment of guardians be rotated among a list. “It’s a work in progress,” Republican Chairman Miguel Diaz de la Portilla reportedly said before the Judiciary Committee unanimously approved it. “It protects the rights of wards. It respects rights of the families of these wards, and it creates a process that is clearer and transparent for all involved.”

Sugar advises aging Americans to take their own precautions by securing a certificate of capacity from a physician and naming three or more people as potential guardians in advance directives rather than just one person.

“The intent is to prove that on a certain date an individual had capacity so that the judicial process cannot retroactively invalidate advanced directives claiming that at the time they were made the person was incapacitated at some date indeterminate,” said Sugar. “A string of springing guardians helps when a judge is avoiding appointing the first named. You want to designate a series of people in order of preference so that a judge can have options.”

The proposed bill must now pass through various committees in both the House and Senate before it comes up for a vote in the combined legislature in the spring.

Ferguson, who has endured the difficult side trying to secure rightful guardianship over her elderly mother, understands the high-stakes at hand for this bill -- and the potential shortcomings of having an inadequate third-party guardian.

"A guardian is only required to visit an elderly ward four times a year," said Ferguson. "Can you imagine an older person in a retirement home who has no voice or health care advocate and whose family members are barred from visiting? Nursing staff can be overworked. A bed sore or health issue could occur any time and go unnoticed."

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Rightful Elder Care Guardians Find Hope in Senate Bill 1226