The power of guardians demands better oversight by state and federal governments | Commentary

Connie Rae Tibbetts didn't get the care she needed from her guardian, an expert and her daughter say (Courtesy of Christine Tibbetts Morrison).

By Charlie Crist and Darren Soto

Picture yourself in your golden years, sitting at home, enjoying retirement after a lifetime of hard work. There’s a knock at your door. Instead of a friend or neighbor, you’re greeted by “officers of the court” who, with no advance warning, no notification to your next of kin, and little explanation, demand you come with them.

You’re placed in a senior living facility far from home. Your possessions are liquidated, bank accounts frozen and your mail and Social Security benefits are forwarded to a professional guardian you barely know. Adding insult to injury, your estate is charged $70 for every hour this stranger spends controlling your life, for the rest of your life.

For people like Willie Berchau of St. Petersburg, and a frightening number of seniors trapped in our broken guardianship system, this is more than just hypothetical — it’s a real-life horror story.

In 2013, Willie was removed from his home and shipped 200 miles away to an assisted living facility on the other side of the state — with no warning and little justification. It took months for Willie to be freed. By then, his savings had been depleted. For a man who escaped Stalinist Russia and Hitler’s Germany, it was a desecration of everything America was supposed to stand for.

In 2017, St. Pete Beach hotel owner Genyte Dirse found herself trapped in a similar situation: while in the process of selling her property to her nephew, Genyte was unexpectedly placed under guardianship following calls to a judge from an acquaintance she barely knew — a Realtor who had shown interest in purchasing the property herself. Ms. Dirse remains under the control of a guardian to this day, who under current law is not required to divulge information on her whereabouts to either her family or the media.

And just this past summer, Orlando-based guardian Rebecca Fierle was stripped of her guardianship of over 400 Floridians after she issued a “do not resuscitate” order without permission for one of her wards, who died after hospital staff where unable to perform life-saving measures.

This tragedy came after years of complaints and no action. During a recent investigation of Fierle, alarming Medicaid fraud and further cases of financial exploitation of incapacitated clients came to light — including revelations uncovered by the Orlando Sentinel regarding nearly $4 million Fierle improperly billed to Orlando hospital AdventHealth.

America’s guardianship system was created as a legal safeguard to assist individuals determined by a judge to be incapacitated or unable to make decisions related to their health or financial well-being. However, as these cases make clear, petitions are not always made with the best intentions of the ward in mind — and the voices of our most vulnerable and their families can and do go ignored.

We have a responsibility to put safeguards in place to ensure these abuses stop, and intervention and action at every level of government is needed.

Judges are the first line of defense against unnecessary guardianship orders. More needs to be done to educate our local judges on alternative options to guardianship and the level of authority that should be provided to private guardians when determined to be necessary.

Greater, more robust oversight at the state level is also needed. Florida established an Office of Public and Professional Guardians in 2016, but it has been underfunded and has failed to take punitive action in any of the ongoing 132 investigations.

In the wake of the Fierle case, the Director of the office resigned, and Gov. Ron DeSantis called for an investigation of the office’s actions — or rather, inaction. The Florida Legislature has an opportunity to make major changes in the next session starting in January — it is imperative they take it.

At the federal level, Congress passed the Elder Abuse Prevention and Prosecution Act in 2017, mandating the Department of Justice provide resources and guidance for the 93 U.S. Attorney offices across the country to prosecute these crimes. To date, they still have not been made a priority, with the resources instead going to tackle other elder abuse issues. More pressure needs to be brought to bear on DOJ and our U.S. Attorneys to go after these crimes and rid the system of predatory actors.

But Congress also needs to do more, including pushing for better data collection on guardianships. We must create a nationwide database that captures information on guardianships, including background checks, from every state and county court system so officials at every level can use this data to track outcomes and identify irregularities where fraud is often present.

Our new bipartisan legislative effort, the Guardianship Accountability Act, does just that, helping to identify bad actors before more people are exploited. A companion bill was introduced in the Senate by Susan Collins, a Maine Republican, and Bob Casey, a Pennsylvania Democrat.

The leading senior advocacy organization, AARP, recently endorsed our efforts as a crucial tool to improve guardianship oversight and stop vulnerable individuals from getting lost in the system.

Given the attention this issue is receiving in states like Florida, it is clear the time to act is now. Working together at the local, state, and federal levels, we can protect our seniors from unscrupulous guardians taking advantage of lax oversight and poor coordination — and fix this broken system once and for all.”

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The power of guardians demands better oversight by state and federal governments | Commentary

Florida Leaders Want Changes in Senior Guardian Program

ORLANDO, Fla. — Top Florida officials are looking to make changes to the state’s guardian program for seniors.

Concerns with the program first came to light after a hearing led to the removal of nearly 100 seniors in former professional guardian Rebecca Fierle’s care. Florida Gov. Ron DeSantis and Secretary of Elder Affairs Richard Prudom say they are willing to make legislative changes to better the state guardianship program.

Prudom says while the Office of Public and Professional Guardians is responsible for taking complaints against professional guardians, the office is not directly responsible for oversight and keeping track of the number of seniors each professional guardian is assigned.

“I think it’s a serious important issue, that it deserves more of a quick fix. It is something that I will be working with the governor and his policy staff, and we will be working with the legislature, and I think the judicial branch as well,” Prudom said.

In a recent interview, Spectrum News 13 spoke with DeSantis, who vowed for change within the guardianship program.

“As we look at this guardianship program if there needs to be legislative changes, those could be something we propose for the next legislative session,” DeSantis said.

How the Guardian Program is Structured in Florida

Currently, the Department of Elder Affairs operates the public and professional guardian program out of Office of Public and Professional Guardians. Judges appoint guardians when the court declares an individual incapacitated and in need of guardianship.

If no family or friend is able or willing to serve, or if the court determines that the family member is inappropriate to serve as guardian, the vourt appoints an outside guardian.

If the ward has assets from which to pay the guardian, a professional guardian is appointed. If the ward does not have assets, a Public Guardian is appointed, and services are paid by the state through contracts the Dept. of Elder Affairs has with 17 Offices of Public Guardian across Florida. 

If a legally sufficient complaint is reported to the Office of Public and Professional Guardians against a professional guardian, it is referred for investigation to the Clerk of Courts’ Statewide Investigative Alliance, as part of the agreement with the Dept. of Elder Affairs.

Complaints and Reform

According to the Dept. of Elder Affairs, since 2016, 764 allegations against professional guardians have been investigated. Approximately 11 percent of those had substantiated findings, or were noted as concerns.

Secretary Prudom says he recently cleared an 80+ case backlog of complaints that had not been closed. He plans to make changes to improve this process.

“What we are going to do actually is, to be more responsive," Prudom said, "Is when an investigation is completed, we are going to release that investigation to the complainant, rather than wait for the administrative process to take place. I think that is going to be more responsive to the needs of the complainant.”

The Dept. of Elder Affairs can only reprimand professional guardians by stripping them of their license — further action can only be taken by the courts or law enforcement.

Secretary Prudom wants to see more oversight for professional guardians, and is working with the governor and other state leaders to make changes.

“That’s what I’ll be doing, working on how to provide monitoring to the over 550 guardians that we have the state, that operate in all 67 counties and have thousands of wards under their supervision. That is what I will be working on to ensure what has happen to date doesn’t happen again.” 

While there is an ongoing FDLE criminal investigation centered on Rebecca Fierle, she's not been charged with a crime. We continue to seek comment from her attorneys.  

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Florida Leaders Want Changes in Senior Guardian Program

Call Christina: Professional Guardianship Laws Expanding to Protect Seniors from Exploitation

The state of Florida is cracking down on bad actors in the professional guardianship industry, hoping the latest reform bill, signed into law by Gov. Rick Scott in March, will protect seniors from guardianship abuse.

Last Friday, the Florida State Guardianship Association (FSGA) met in Fort Lauderdale for their 2016 Annual Conference, where officials discussed recently passed SB-232, based on the guardianship audits performed by the Clerk & Comptroller in Palm Beach County for the last 25 years.

"Historically, the clerks have had the statutory obligation to monitor the guardianship's financial information," Clerk Sharon Bock, from the Palm Beach County Clerk & Comptroller, said. "In 2013, that was enhanced to be able to actually investigate and audit and get down really in the nitty-gritty of these files."

Now that the Clerk of Courts is partnering with the Department of Elder Affairs, however, Bock said the new law fills that hole by requiring a collection of that information all in one place.

"That gap has now closed," Bock said. "We will now, through our partnership with the state, be reporting the outcome of our investigations and audits."

"There are sometimes some bad apples," Secretary Sam Verghese, from the Florida Department of Elder Affairs, said. "What we've sought to do with the legislature has been to fix some of those gaps that have been there, so that if there is someone who's being taken advantage of from abuse, neglect, exploitation, financial fraud, there's a way to actually go after the bad apples so more people aren't hurt."

In creating the Office of Public and Professional Guardians (OPPG) within Department of Elder Affairs, the passing of SB-232 requires that the OPPG provide monitoring and disciplinary oversight of professional guardians, including the ability to revoke a guardian's registration. It also establishes a complaint department for families and those in guardianships, and certifies and supervises court-appointed guardians.

This is in addition to HB-5, which was signed into law last year in order to make it more difficult for guardians to seize control of their wards' assets.

"This in fact will stop, or we hope will deter the kind of unethical and fraudulent practices that we may have seen in the past," Bock said.

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Call Christina:  Professional Guardianship Laws Expanding to Protect Seniors from Exploitation

Florida Senator Nancy Detert's Guardianship Bill, SB 232, Heads to Governor Scott's Desk

Senator Nancy Detert

First came the stories that sparked concern and outrage. Then came the legislation.

And Wednesday, with nearly unanimous approval in the Legislature, came reforms that supporters say will make Florida a national model for regulation of guardians who care for the state’s frail elders.

The legislation (SB 232), sponsored by Sen. Nancy Detert, R-Venice, and Rep. Larry Ahern, R-Seminole, will allow the state Department of Elder Affairs to expand its public guardianship office to include private, or professional, guardians, who are paid to manage the affairs of seniors deemed by the courts as too frail or mentally challenged to care for themselves.

Two weeks after the Senate unanimously passed the legislation, the House approved the measure 115-2 and sent it to Gov. Rick Scott.

The bill, which Scott is expected to sign, will allow the newly renamed Office of Public and Professional Guardians to establish standards for public and private guardians, register guardians, investigate complaints, develop procedures for discipline and set penalties for guardians found in violation.

Detert, who is leaving the Senate to run for the Sarasota County Commission, considered the bill her top priority for her last session in the Legislature. And, in an unusual move, the 39 other senators became co-sponsors of the legislation.

“I think that the bill is very important and I think everyone should talk about it in their own community,” Detert said about the Senate support.

Detert said with Florida’s and the nation’s growing elderly population, the issue of guardianship and the potential abuses is a national problem.

“There are so many horrible, blatant cases,” Detert said. “Every state was blindsided.”

But Detert said with the enactment of the new bill Florida will have “the strongest law in the nation.”

“It will be the model for the other states,” she said.

Detert said she was prompted to file the legislation after hearing complaints from families in her community, including Julie Ferguson, whose legal efforts on behalf of her mother, Marise London, were the subject of a story in the Herald-Tribune’s series, “The Kindness of Strangers,” which highlighted problems with the guardianship system.

In her 80s, London — for years the owner of a well-known art gallery and frame shop in Gulf Gate — wanted to stay in her beloved house. In January 2013, the 12th Judicial Circuit Court named the nonprofit agency Lutheran Services Florida as London’s guardian, at the request of the Department of Children and Families’ Adult Protective Services division. The agency was paid from London’s assets to make decisions about her finances and health, at the rate of $85 an hour — while Ferguson maintained she could provide better care for free, and had a right to do so under a Power of Attorney document her mother signed before suffering from cognitive impairment. Ferguson has spent years and thousands of dollars trying to gain guardianship of her mother.

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Guardianship Bill Heads to Scott's Desk