|Judge Charles Williams & Dana Yawn|
This new court monitor program joins a handful of such efforts in the nation. An ambitious commitment to improve oversight and public access, it comes a year after a Herald-Tribune series questioned the legal process that removes some or all of an elder's civil rights.
For the first time, the county's adult wards and their families have a number to call and a designated person to talk to about problems they encounter in the guardianship system. The newly hired monitor will serve as the “eyes and ears” for the court, investigating complaints and concerns.
“The articles that the Sarasota Herald-Tribune brought forth — which were important — pointed out that there are some cases that we do need to pay a little more attention to,” said 12th Judicial Circuit Court Chief Judge Charles Williams. “So the guardianship monitor, in my opinion, is basically not going to do anything other than make certain, as best we can with our limited resources, that not one person slips through the cracks.”
Adult guardianship places elders struggling with frailty or dementia under court protection, and assigns to someone else sweeping powers to make legal, financial and health care decisions for that person. Florida law gives preference to family members, but courts often appoint paid guardians when relatives are in conflict or appear unsuitable. As pointed out in the series, “The Kindness of Strangers: Inside Elder Guardianship in Florida,” once a court rules and the case is closed, wards and their families can find themselves with little recourse.
Brenda K. Uekert, principal research consultant for the National Center for State Courts and an advocate for guardianship reform, has called the monitoring of existing wards' cases “the hottest issue the courts face. Nationally, if I had to grade it, I would give the courts an 'F.'” She said the news of Sarasota County's startup program is “very encouraging.”
“I would say that puts the court in a very good light,” Uekert said. “Most courts don't have the resources to do this, or depend on volunteers. The California Superior Courts have court investigators who are supposed to visit persons under guardianship, though I know the degree to which this happens varies from county to county. But most courts do not have court staff to do so.”
A full-time position
Williams and court administrator Walt Smith asked the Sarasota County Commission to fund the full-time position, and in December hired Dana Yawn, who holds a master's degree in social work and has experience with the court's family division.
Together, Williams and Yawn designed a process that allows for follow-up on some 130 existing wards, as well as 60-day and one-year reviews for new cases.
“This is sort of modeled on what they do in dependency court for children and families,” Williams said. “Usually within a year you'll know whether or not the person's getting better, whether or not everything's running smoothly. We never had a requirement to actually bring a case back into court, so we're going to start doing that.”
At least two other circuits in Florida have guardianship monitors, but the structure of Sarasota County's program appears to be unique.
“Because we've never had a monitor before, we sort of had to figure out on the run how to put this thing together,” Williams said. This required an analysis, he said, of what happens “when a guardianship doesn't go the way it's intended to.
“The most common issue, usually, that we're very concerned about is making certain that it is the least restrictive alternative,” he said, referring to the legal requirement that elders retain as much independence as possible. “Certainly we don't want anyone to have rights taken away from them, or be subjected to a guardian, who didn't need it.”
Clerk of Court Karen Rushing's office will make its financial auditors available to investigate cases flagged by the monitor. And the clerk's existing hotline for people to report waste, fraud and abuse is available for anyone with concerns about a ward's welfare. Calls can be anonymous, Williams said, and can come from the ward, a relative, a neighbor — even a sharp-eyed stranger.
Until now, generally the only way to intervene in an existing guardianship has been the costly step of hiring an attorney to re-open the case.
“What we think is the biggest void is to be able to handle situations that aren't in the regular legal proceedings,” Williams said. “Members of the public really don't know how to deal with that effectively, because we had no real mechanism of doing it, other than going through the legal process, so we wanted to make it consumer-friendly.”
A unique perspective
This is Williams' third rotation through the probate and guardianship section, and he said his personal experience caring for his own parents made him sensitive to what people go through when a loved one has cognitive decline. And he knows that thorny family dynamics can get in the way of legal fact-finding.
“We thought it would be great if we could have someone that can basically be an extension of the court system and go out and take a look at these cases,” he explained. “We're going to be eyes-on. If there's something going on — bedsores, swollen feet or something — she's going to come back and tell me.”
Ira Wiesner, a local elder law pioneer who entered the field in 1989, called the hiring of a monitor “a wonderful enhancement.”
The program, he said, “gives families an opportunity to know that their concerns about the status of a guardianship of a loved one will get attention. Going forward, the annual reviews for new guardianships are going to be very positive. I just don't know how one person is going to be able to handle what I anticipate to be the volume — and we may find that the needs are far greater than what we were led to believe, and need a second one.”
Williams said he is “very, very pleased” with the local attorneys who handle guardianship cases, and he has met with them to outline the new system. If it succeeds, he said, he will ask to expand the monitoring program in Sarasota County and perhaps add one in Manatee.
“It's baby steps, I admit, but it's a start,” he said. “I think by this time next year we'll have a better idea of how effective we are. But really, I think right now if there's anyone who has an issue with a guardianship, and they bring it to our attention, we have the ability to immediately take care of it. And that's important.”
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Layer of oversight added for adult wards