Solution to guardianship crisis? Advocates say cap fees

Despite a new state law and local safeguards, such as a fraud investigator, advocates for guardianship reform say the system remains broken — almost hopelessly so.

Without serious changes, unethical court-appointed guardians and their attorneys can operate with impunity, draining bank accounts of seniors and isolating them from loved ones. And if the judiciary is compromised, there’s no stopping the abuse, advocates say.

Elizabeth Savitt

Solutions are complex but reformers focus on three areas: putting a cap on fees, drafting a type of Bill of Rights for seniors that will give them and their families more say in guardianships and giving the state the power to weed out bad actors. A bill reintroduced in the Legislature for the current session would for the first time give the state real regulatory authority over guardians.

And there’s good reason to reign in the professional guardianship industry in Florida, which saw a boom after the last recession. The number of registered guardians swelled from 108 in 2003 to 457 last year, according to the Department of Elder Affairs.

“Guardianship is a business and it’s a big business and it’s tremendously profitable,” said Dr. Sam Sugar, co-founder of Americans Against Abusive Probate Guardianship.

No amount of legislation will do anything, however, if judges refuse to take advantage of the laws to crack down on unethical guardians.

In The Post’s recent stories about Judge Martin Colin and his wife, guardian Elizabeth “Betsy” Savitt, families of seniors in guardianship say in court documents and interviews with The Post that Savitt took advantage of her position as a guardian. They said the judge’s wife went after the life savings of their loved ones through unnecessary litigation, double-billing and taking fees for herself and her lawyers without prior court approval.

Right now, the Department of Elder Affairs can do little about unscrupulous professional guardians.

“The department does not have any authority over professional guardians,” said spokeswoman Ashley Chambers. “This is a profession that we do not regulate and have no jurisdiction.”

The pending bill seeks to address this. Senate Bill 232, sponsored by Sen. Nancy Detert, R-Venice, would create the Office of Public and Professional Guardians under the Department of Elder Affairs and give it oversight of professional guardians. The executive director would develop and enforce standards for professional guardians.

The office would regularly monitor guardians’ activities and do reviews that are different from the annual financial audits that the Clerk & Comptroller’s Office does. It also would investigate complaints about the guardians. If an investigation finds the complaint is justified, the executive director could discipline the guardians, including revoking their registration, which would make them ineligible for court appointment.

“Somebody has found a cottage industry, and they are not targeting the poor people,” Detert was quoted by The Florida Bar News last year.

Capping fees
But advocates say the reforms need to hit unscrupulous guardians and their attorneys in the pocketbook in order to dampen the current profit motive in guardianships.

Among the most radical solutions proposed in Florida is a constitutional amendment to cap the fees of guardians and especially their attorneys. If guardians can’t keep going back to a seniors’ account for money, they’ll be motivated to block unnecessary legal work and get their own work done more efficiently, advocates say.

Fees for professional guardians are set by the judicial circuit in each county. In Palm Beach County, it ranges from $50 to $95 per hour, guardians told the Post. Attorney fees, though, routinely range from $250 to $450 an hour, and guardianship cases are replete with lawyers.

The guardian, the ward and various family members may all be represented by lawyers who seek to be paid out of the savings of the incapacitated individual. A conference call with all the stakeholders can easily run $1,000 an hour, turning routine matters into a money machine for the lawyers involved.

Americans Against Abusive Probate Guardianship is considering ways to gather more than 680,000 signatures needed to put such a measure on the ballot to change the Florida Constitution.

“If you have a cap on the fees, there is going to be less guardianships, not as much abuse and the elderly will be able to stay with their families,” said Lidya Abramovici, a co-founder of the Aventura-based group. “That is the way it is in other countries.”

Caps could be fashioned after state laws that limit the amount of money attorneys can collect in medical malpractice cases — possibly 30 percent of the senior’s annual budget or 5 percent of the senior’s assets. The group’s proposal also would limit payments to one attorney, Sugar said.
Some professional guardians, however, striving to do their best for a senior while working with often-conflicting family members, object to the proposal.

Fernando Gutierrez, a director of the GuardianAssociation of Pinellas County, said capping fees would be arbitrary and capricious because fees for guardians vary from county to county.

“Maybe, it’s time for a uniform fee schedule,” he said. “The major drawback to this system is making revisions that reflect fair compensation amounts. Capping guardian fees would make sense, only if a Florida statute would require the chief judges of each district to review and implement new fees every five years.”

Sugar said it is up to the judges and prosecutors, though, to order penalties. “We desperately need prosecution of the worst offenders to set an example and dissuade others,” he said.

Let seniors decide
To offset problems that can arise when a guardian takes charge, a reform gaining national attention is called “supported decision-making.”

It lets seniors decide where they live and how much financial help they need through a type of Bill of Rights. The approach automatically considers alternatives to guardianship, such as giving a family member power of attorney. Texas and other states are considering incorporating the approach into guardianship laws.

Even the United Nations has chimed in, stating, “With supported decision-making, the presumption is always in favor of the person with a disability who will be affected by the decision.”

“It needs to be translated into state legislative statutes,” Sugar said.

But Jetta Getty, former president of the Florida State Guardianship Association, said current laws are enough and that the industry is being unfairly maligned.

“Less than 1 percent of professional guardians have any black marks or infractions,” the Daytona Beach professional guardian said. “This is a judicial problem. I believe statutes already present give the courts full authority to rectify the problems that are being highlighted.”

Local fraud investigator
On a local level, Palm Beach County Clerk and Comptroller Sharon Bock established a fraud hotline and hired an auditor in 2011 to look into complaints. The clerk’s inspector general audits and investigates professional guardians, non-professional guardians, family members, attorneys, caregivers and anyone else suspected of exploiting a person under guardianship.

Bock’s office says it has investigated more than 900 cases and uncovered more than $4.5 million in questionable expenditures.

“Even a small amount of fraud is really intolerable,” Bock said. “When we get to the point that all guardians are invested in the outcome of protecting the ward, then we have really reached our goal.”

Sugar said he routinely hears complaints from Palm Beach County about professional guardians.

He said it is important for the public to understand that when a senior is put under plenary guardianship that they lose all rights, that they are “dead in the eyes of law.” The guardian can determine where they live, how they spend their money and — most importantly — their medical care.

“It just seems like every day we hear about something more egregious,” said Martha T.S. Laham, author of The Con Game: A Failure of Trust. “It’s a matter of the individual’s basic rights. They strip these from them in a matter of minutes and reduce them to the status of an infant.”

Easy to qualify
Laham, a professor at Diablo Valley College in Pleasant Hill, Calif., said some states are toughening qualification standards for guardians. Savitt was a tennis pro and became a guardian after 40 hours of training, a test and a credit and criminal background check.

Guardians need to be monitored much more strictly. Judges need to look at the credentials of guardians prior to appointment and then follow up to make sure the senior’s finances aren’t being abused, she said.

There are ways for families and seniors to protect themselves from falling prey to predatory guardianship. That is to set up a defined power-of-attorney and pre-need directives for the senior long before senility sets in. Some advocates claim that such planning would eliminate the need for guardianships for the vast majority of seniors.

How do these thwart aggressive professional guardians? Families only need to look to the precedent-setting Palm Beach County case of J. Alan Smith recently decided by the 4th District Court of Appeal in West Palm Beach.

The appellate court found that Smith’s pre-need directives naming his new wife, Glenda Martinez, his health-care surrogate trumped all of the claims of the guardian and his attorney. The guardian successfully sought to annul the marriage but not the pre-need directive.

“That decision was badly needed in guardianship law here in Florida,” said Martinez’s attorney, Jennifer Carroll. “The personal wishes of the ward somehow disappear over time and become irrelevant in the guardianship proceeding and all the players in the system lose sight of that fundamental principle.”  (Continue Reading)

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Solution to guardianship crisis? Advocates say cap fees