Florida retirees should be alert to guardianship abuse | Opinion

Victoria Pearce

Florida is a state known for being a retiree’s ultimate dream destination. The tropical weather, white sandy beaches, and no state income tax — what more could one ask for? 

On their list of necessities, most residents probably don’t have a legal guardianship at the top. But they would be wise to do so. A guardian, at the most basic level, is defined as a defender, protector or a keeper. A guardian is, in essence, someone to oversee and support another person, known as a ward, who may not be able to do so on their own. Florida monitors and oversees 30,000 to 40,000 open guardianships at any given time.

Florida’s system allows for a professional guardian to be appointed to assist in meeting “essential requirements” for physical health and safety of a ward. The responsibilities of a guardian range from monitoring the ward’s financial resources to ensuring that the ward is receiving adequate food and shelter and maintaining good personal hygiene.

A mere overview of the system’s design and purpose make the system seem beneficial to all of those involved. But that is just the tip of the guardianship iceberg. A look below the surface, however, reveals a system both flawed and potentially harmful to those it was designed to help.

Under Florida law, a guardian or an attorney who has rendered services to a ward (previously the alleged incapacitated person) is entitled to a reasonable fee for services. These “reasonable fees” are to be paid from ward’s assets. These fees range from $50 to $95 per hour for a guardian, and can be up to $500 per hour for an attorney. With numerous hands on deck, along with the passions that come with these sorts of proceedings, the costs build quickly and continue to rise.

Every day cases arise in which the ward no longer wishes to be under guardianship or in which the ward and the guardian aren’t seeing eye to eye on issues. What happens when fees begin to accumulate for the guardian and attorney in these circumstances?

Florida law allows a guardian or an attorney to receive fees from the ward’s assets even for going against the ward’s own desires (i.e., fighting against the termination of a guardianship). So long as the guardian or attorney justifies the fees as acting in the best interests of the ward, he fees can be taken from the ward’s assets.

Ultimately, the system has created a business for professional guardians and associated attorneys. Instead of protecting the interests of a ward, Florida law allows for a cash cow to exist at the expense of those truly in need.

At this point, further guidance and oversight is needed to ensure that those who find themselves in need aren’t taken advantage of and don’t fall victim to abuses of this large and ever-growing business in Florida.

Victoria Pearce is a graduate of FSU Law and current attorney with Bleakley Bavol & Denman. Reach her at vpearce@bleakleybavol.com.  

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Florida retirees should be alert to guardianship abuse | Opinion