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.
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.
advocates say the reforms need to hit unscrupulous guardians and their
attorneys in the pocketbook in order to dampen the current profit motive
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.
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.
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
Americans Against Abusive Probate Guardianship
considering ways to gather more than 680,000 signatures needed to put
such a measure on the ballot to change the Florida Constitution.
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.
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
offset problems that can arise when a guardian takes charge, a reform
gaining national attention is called “supported decision-making.”
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.
Jetta Getty, former president of the Florida State Guardianship
Association, said current laws are enough and that the industry is being
“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
Local fraud investigator
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
Bock’s office says it has investigated more than 900 cases and uncovered more than $4.5 million in questionable expenditures.
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.
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
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.
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.
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
Full Article & Source:
Solution to guardianship crisis? Advocates say cap fees