Florida guardianship laws weakened by elder law attorneys’ lobbying. For some courts, exceptions have become the rule | Special report

By Jason Garcia and Monivette Cordeiro

It’s known as “trolling.”

That’s the practice in which a professional guardian identifies a vulnerable elderly person by visiting a nursing home, sponsoring an “informational” breakfast or getting a call from a hospital. Then the guardian, or their attorney, gets a court to appoint them that person’s guardian, by talking the elderly person into asking for it themselves or persuading a judge to intervene

Five years ago, when Florida lawmakers set out to reform the state’s guardianship laws, they were so concerned about trolling scams that they proposed two major restrictions meant to put a stop to them.

One would have forced judges to follow a rotation when appointing a professional guardian for an elderly or disabled person who had just been declared incapacitated. The other would have forbidden a professional guardian who was appointed to oversee a ward on a temporary or emergency basis from later being appointed that person’s permanent ward, too.

But by the time Republican-controlled Florida Legislature passed the 2015 law, both restrictions had been substantially eased. The reason: Opposition from the elder-law industry.

Elder, estate and probate attorneys who work on guardianship cases -- many of whom earn fees paid with the assets of the person who the court has decided is incapacitated -- threw up a thicket of objections. They persuaded Florida lawmakers to include exceptions to both.

Rebecca Fierle

Those exceptions have, in many parts of Florida, rendered the two anti-trolling changes almost toothless. They have also created loopholes that help explain how Rebecca Fierle, the disgraced Orlando-based professional guardian who is now under criminal investigation, was able to gain control over the estates of so many seniors and other vulnerable people. Fierle resigned in July from 95 active cases in Orange County alone.

The 2015 legislation underscores the influence that the elder-law industry has in shaping in Florida’s guardianship laws.

“It’s the coyotes guarding the henhouse,” said Douglas Franks, a 61-year-old computer technician from Georgia whose late mother was declared incapacitated and put under the care of a professional guardian in Pensacola. Franks has personally lobbied the Florida Legislature for stricter controls over the industry.

“We need to have a third party -- someone that doesn’t have a vested interest -- to look at this and say, ‘This is not fair,’” Franks said.

Industry advocates say it makes sense that they play a central role in these debates. They know this arcane corner of the law better than anybody -- and they can anticipate how well-intentioned reforms could cause more unintentional problems.

Changes can also impact their livelihoods. Attorney fees are often a major cost in guardianship cases, where assets from the estate of the person who has been declared incapacitated can be spent to pay for lawyers to represent both the wards themselves and the guardian appointed to manage their affairs.

In one case out of Palm Beach County, for instance, the attorneys representing a guardian were paid close to $200,000 in fees and costs over a roughly two-year period -- from an estate worth about $400,000, according to court records. The same attorneys and guardians often work together on multiple cases.

Still, Shannon Miller, who runs the Miller Elder Law Firm in Gainesville, said the attorneys who help write guardian laws prioritize the protection of seniors and other vulnerable people over their own self interests. Miller, who also co-chairs the legislative committee for the Elder Law Section of the Florida Bar, the professional association for attorneys, pointed out that elder-law attorneys have also lobbied for laws making it easier for some people to obtain emergency injunctions or file wills without hiring a lawyer.

“We do advocate for ourselves. But at the same time, our primary goal when we’re legislating is to advocate for the rights of seniors,” she said.

Guardianship law attorneys have influence

There are, to be sure, multiple interest groups who have played a role in writing Florida’s guardianship laws. The stakeholders include judges who preside over guardianship cases and county court clerks, whose offices audit and investigate guardians. Activist groups, such as AARP and an organization known as Americans Against Abusive Probate Guardianship, also get involved.

Sometimes the hospital and nursing-home industries weigh in. And professional guardians themselves lobby, too, through a trade group known as the Florida State Guardianship Association.

But lawmakers and lobbyists on all sides of the debate say the people who have historically had the most influence on the process are the attorneys who practice guardianship law. They work primarily through a pair of divisions of the Florida Bar -- the Elder Law Section and the Real Property, Probate and Trust Law Section (which attorneys often jokingly refer to as “the reptiles” because of the acronym RPPTLS.)

Those attorneys leapt into action in 2015 when lawmakers began thinking about imposing rigid controls on how professional guardians get their cases. The Elder Law Section’s Guardianship Committee, which had been meeting every other week, started conducting weekly meetings to better keep tabs on the various bills in play.

The proposal to make judges follow a rotating order when appointing professional guardians was known at the time as “the wheel,” and the lawmakers who initially suggested it said it would ensure fairness in the process.

“It also assures that judges won’t get complaints in choosing the same guardians over and over,” former state Sen. Nancy Detert, a Republican from Sarasota County, said during a hearing on one early version of the legislation. “Because we do have guardians that are frankly targeting wealthy people and not taking cases where there’s no money available.”

But elder-law attorneys said the concept was flawed and unworkable. They warned that smaller counties might not have enough guardians for a rotation. They said judges should be able to consider if a ward required a guardian with a particular expertise, such as the ability to manage a business. And they stressed the importance of the interpersonal connection between a guardian and a ward.

So lawmakers agreed to add an exception to the wheel. Judges can decide not to follow a rotation when appointing a professional guardian as long as they explain their reasons for doing so.

The same thing happened with another provision lawmakers considered in 2015. It would have strictly prohibited a judge from allowing a professional guardian who had been appointed to oversee a ward on an emergency basis to then become that vulnerable person’s permanent guardian, too. The only exception in an early version of the bill would have been for cases in which the elderly or disabled person had chosen someone to be their guardian in advance -- before a court had determined they were incapacitated.

But attorneys said emergency guardians often develop personal bonds with the person for whom they have been made responsible and spend lots of time learning that person’s familial, financial and medical needs. They said requiring a second guardian to come in and do the same thing all over again could be emotionally traumatic and unnecessarily expensive for the ward -- whose estate pays the bills.

Lawmakers once again agreed to add more exceptions. The final legislation gave judges the discretion to let an emergency guardian become the permanent guardian if the ward’s next of kin requests it -- or if the judge decides that the guardian has “special talent or specific prior experience” that warrants it.

Detert, now a county commissioner in Sarasota, said the compromises were brokered by state Sen. Kathleen Passidomo, a Republican real-estate attorney from Naples who has in recent years become one of the Legislature’s leading experts on guardianship law.

"She came to me and she said, ‘I’ve worked it out with the reptiles,’” Detert said. “She did that part, thank goodness. She could speak their acronyms and I don’t.”

Passidomo, who was in the state House at the time, said she ultimately concluded that judges needed to have flexibility when appointing guardians.

“There are some wards that need certain types of care," she said.

Exceptions become the rules

But those exceptions have become rules in many counties across the state. The Orlando Sentinel surveyed the state’s 20 judicial circuits to find out which ones follow a rotation when appointing professional guardians. Ten responded -- and a half-dozen of those said they do not follow a rotation or they regularly go out of order when no one objects.

In Orange County, records reviewed by the Sentinel showed that Orange County judges chose to ignore a rotation and appointed Fierle in at least two-thirds of her active cases at the time of her resignation. The orders typically include boilerplate explanations for why the judge decided not to follow a rotation, such as that Fierle “has professional and business experience relevant to the nature of the services sought to be provided.” There are at least nine more cases in which it appears the judge appointed Fierle as guardian instead of following a rotation but there is no written explanation in the order.

One of the cases in which the judge chose to appoint Fierle rather than follow a guardian rotation: Steven Stryker, the 75-year-old who died at a Tampa hospital when staff was unable to perform life-saving measures due to a Do Not Resuscitate order that Fierle had filed against his wishes and refused to remove. Fierle was appointed Stryker’s guardian during a hearing that lasted less than three minutes, a recording obtained by the Sentinel shows.

After this story was published online, a spokeswoman for the Ninth Circuit, which includes Orange and Osceola counties, said the circuit does not follow a rotation when appointing any guardians.

The reasons judges gave to appoint Fierle and ignore the rotation system are “an offense,” Detert said.

Guardians "are all qualified and they’re all professional,” Detert said. “That’s not a good enough reason, in my opinion.”

Records reviewed by the Sentinel also show that at the time of her resignations, Fierle was serving as the permanent guardian for nine people in Orange County for whom she’d started out as an emergency guardian. The judicial orders for the appointments often provide only vague explanations whey they decided to let Fierle stay on as permanent guardian. In one example, for instance, the order says only that “Rebecca Fierle has the specific prior experience that this guardianship demands.”

Fierle initially sought to become an emergency guardian for Stryker, whose death sparked the statewide scandal that led to her resignation and multiple investigations.

Ninth Circuit spokeswoman Karen Levey said judges in Orange and Osceola counties decide whether to let emergency guardians become permanent guardians on a case-by-case basis.

“Rebecca Fierle appeared that she had tremendous experience and knowledge of promptly qualifying the elderly for their entitled benefits (Social Security, Medicare, Medicaid),” Levey said.

Judges in other counties are also using their discretion. In a recent case out of Pinellas County, the friend of a ward challenged a judge’s decision to let an emergency guardian stay on as the permanent guardian because, in part, she had been a case manager for 25 years in the areas of grief, bereavement and crisis intervention; she held a master’s degree and was a licensed clinical social worker, hospice end-of-life counselor and practicing therapist. An appellate court ruled that those reasons satisfied the law.

Detert said there should be consequences for judges who are ignoring the rotation system or waiving the rules constantly for certain guardians.

“We should also have a penalty for judges who are abusing the system or just being lazy,” she said. “If they do it a lot, that should be a red flag.”

Attorneys cultivate influence

There have been other examples of guardianship-law attorneys and professional guardians shaping the state’s guardianship laws. In 2016, the Florida Legislature passed a law creating a new oversight agency, the Office of Public and Professional Guardians, and ordered it to develop standards of practice for professional guardians.

When the agency initially unveiled its proposed standards, the Elder Law section of the Florida Bar sent a seven-page letter raising various objections and concerns. The RPPTL section sent a full red-lined rewrite. And RPPTL lawyers helped orchestrate a lawsuit brought by a professional guardian against the state’s Office of Public and Professional Guardian challenging the proposed standards. The lawsuit was settled.

“A litigant who has standing to contest the rules was required in order to file the court action,” a RPPTL attorney wrote in the summer 2017 issue of the section’s “ActionLine” magazine. The story noted that the attorney who led the RPPTL section’s legislative committee “has worked diligently to submit and manage the court action.”

Sharon Bock, the elected clerk and comptroller in Palm Beach County, said Florida’s guardianship laws have historically favored the industry. Bock has lobbied Florida lawmakers in recent years to give clerks more authority to audit and investigate guardians.

“What we’re doing is interfering with their business model,” said Bock, whose office has been among the most aggressive in investigating abuses by professional guardians.

The elder-law industry builds influence in the political process in a number of ways.

The RPPTL section, for instance, has a pair of political committees that together donate about $180,000 per election cycle to state politicians. While it’s a relatively small amount compared to giant contributors like utilities, personal-injury attorneys and gambling interests, they spread the money widely: 33 of the 40 members of the Florida Senate have received contributions from the RPPTL committees.

Elder-law attorneys and their firms sometimes deliver checks in a bundle. On a single September day last year, for instance, state Rep. Colleen Burton, a Republican from Lakeland, received $3,750 worth of campaign contributions from half a dozen donors tied to the guardianship industry. One day a month later, Passidomo, the Naples Republican who has worked on a number of guardianship bills over the years, got $2,500 from half a dozen elder-law firms. Burton and Passidomo have both received “Legislator of the Year” awards from the Elder Law Section in the past.

The groups also spend on lobbyists. Records show the RPPTL section spent approximately $60,000 on legislative lobbying last year -- with a list of contract lobbyists that included former Senate President Mike Hardiopolos, a Republican from Brevard County. A trade group known as the Academy of Elder Law Attorneys, which works closely with the Elder Law section, spent about $30,000 on a lobbyist.

And they make themselves available as subject-matter experts and go-to resources for the professional legislative staffers who have the job of turning ideas and concepts into actual legislation, said Sam Sugar, an activist with the organization Americans Against Abusive Probate Guardianship.

“They have access to the people who actually scribble the words down or type them out in Tallahassee,” Sugar said. “Contrast to that, if you’re an advocate or you are a citizen and you want to see changes placed into potential legislation, you don’t have a clue how that happens.”

The elected lawmakers who are ultimately responsible for passing the laws say they try to ensure that no one person or interest group has more influence than another.

“My philosophy when I file legislation is to open my doors and let anybody who has an opinion weigh in,” Passidomo said. “I take all suggestions, if they make sense.”

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Florida guardianship laws weakened by elder law attorneys’ lobbying. For some courts, exceptions have become the rule | Special report