Florida Guardianship bill moves on to final vote

Bill undergoing final readings in Florida House, expected to go to vote Wednesday

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Tallahassee, FL – State lawmakers are now one step closer to making major changes to Florida’s guardianship law. The changes come after a former Central Florida guardian was caught placing do not resuscitate orders on clients without their permission. Right now lawmakers in the Florida House of Representatives are going through the final readings of the senate version of the Guardianship bill.

A news conference is scheduled for Thursday morning at the state capitol with the bill co-authors, Rep. Colleen Burton of Lakeland and Senator Kathleen Passidomo of Naples, along with Richard Prudom, the Secretary of Elder Affairs.

The bill passed unanimously in the Florida Senate last week and is expected to go up for a House vote tomorrow. Should it pass as expected, the bill will go to Governor DeSantis’ office to be signed into law. Last summer, DeSantis ordered a statewide probe into the guardianship program after state investigators launched a criminal investigation into Rebecca Fierle and the hundreds of guardianship cases she had across the state.

The measure entered as HB 709 and SB 994, would clamp down on what guardians would be allowed to do -- and create more supervision on cases involving vulnerable and elderly patients entrusted with their care. The bills come right on the heels of a court date being set for Rebecca Fierle.

She is a former guardian based out of Orlando who just last month was arrested on two felony counts of abuse and aggravated neglect. Body camera video from the Marion County Sheriff’s Office shows the arrest at her Ocala home. Fierle is scheduled for a court hearing on arraignment in Hillsborough County to face two felony counts on March 23rd.

Fierle was under a state criminal investigation for months over how she handled the case of Stephen Stryker, a Brevard County man who died at a Tampa hospital while under her care. State investigators allege she ordered his feeding tube to be capped and a DNR order to remain in place against the recommendations of doctors, and against Stryker's wishes. She is also being investigated for how she handled her clients' finances.

As a result of this case, Senator Kathleen Passidomo of Naples and Representative Colleen Burton of Lakeland have recommended stricter guidelines and more court supervision over what state guardians can and can't do. Fierle's former attorneys contend she acted within the current guidelines set forth by Florida law and did nothing wrong when she placed DNR orders on hundreds of clients without their permission, and without notifying the court.

The attorneys representing her in her criminal case have not responded to multiple requests for comment.

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Florida Guardianship bill moves on to final vote

Guardian bill passes first hurdle in Florida

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ORLANDO, Fla. – The House Children, Families and Seniors subcommittee on Thursday unanimously passed a guardianship bill that was recently introduced to the Florida legislature. The bill will now be presented to the Justice subcommittee for consideration.

Stakeholders in Florida’s guardianship program are trying to push legislation to increase oversight on state guardians, especially when it comes to how they handle their clients’ medical directives and money.

HB 709 was created after former Orlando based guardian Rebecca Fierle made headlines for placing do not resuscitate orders on patients who did not want to die. She’s also accused of double-billing both her patients and a local hospital to the tune of almost 4 million dollars without the courts even knowing.

“It helps those who cannot help themselves,” state Rep. Colleen Burton said, who helped draft and filed the bill.

Burton told the committee how the bill would prevent guardians from having absolute power over a patient’s medical and financial affairs and would prevent them from being able to receive any sort of kickbacks.

“We want to make sure we know everything that's coming in,” Burton said.

Burton told the committee the guardianship bill would provide at least one more layer of oversight in cases involving patients with DNR orders. HB 709 would also require more research be done to see if there are any alternatives to putting a guardianship in place.

“We had big meetings with lots of folks over the course of the early fall to talk about what can we do,” Burton said. “How can we craft, how can we narrowly craft a bill around guardianship that makes sure when somebody is in a position to not speak for themselves, that a decision is not made about their lives that may not be the decision they want made.”

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Guardian bill passes first hurdle in Florida

Slimmer guardians bill gains steam

House Speaker Brian Egolf, D-Santa Fe, talks about a guardianship reform bill in the House Judiciary Committee on Monday. (Eddie Moore/Albuquerque Journal)

SANTA FE – The push for greater transparency in the state’s legal guardianship system gathered momentum in a House Judiciary Committee hearing Monday, just as the idea of tethering immediate reforms to a bigger overhaul within two years seemed to dim.

Committee members, who are expected to continue the debate today or Wednesday, appeared ready to strip the guardianship bill of its last nearly 200 pages, which would implement a new model Uniform Act of reforms that the courts say needs more study and dedicated ways of financing the changes.

That measure, spearheaded by Sen. Jim White, R-Albuquerque, passed the Senate last week by unanimous vote, with the Uniform Act to take effect in 2020.

But in recent days, legislators, analysts and the courts have been taking a closer look at the ramifications to better gauge the impact of major changes that would be required of the system, which currently involves an estimated 5,000 to 7,000 existing cases with about 500 new guardianship filings each year.

Stripping the Uniform Act from the measure would leave major, less costly reforms, including open guardianship hearings, expanded notice of court actions to families, greater visitation and bonding of non-family conservators.

House Speaker Brian Egolf, D-Santa Fe, told the committee that if it removed the Uniform Act, he would take steps to see that the rest of the bill moved directly to a House floor vote before the session ends at noon Thursday. “Don’t worry. If we don’t vote on this today, it doesn’t mean it’s not going to happen,” Egolf told the packed committee room.

The bill originally had been assigned to House Judiciary and then House Appropriations and Finance, a path that could very well have led to the measure dying in committee.

Rep. Damon Ely, D-Corrales, offered a slate of amendments to the remaining portion that are expected to be debated today.

Noting that part of his legal practice is devoted to suing other attorneys, Ely said, “I have sued some of these people (attorneys in guardianship/conservatorship cases) in that connection. It is tragic what’s happened.”

“There are a few bad apples that are a disaster, and we have to address it,” he said.

The issue of transparency, and how much is too much, arose during the Judiciary Committee hearing Monday. Currently, all guardianship and conservatorship hearings are closed to the public, and even some family members. But other states have open hearings, which advocates believe would improve accountability of guardians, the lawyers who file the cases and judges themselves.

In earlier versions of White’s bill, such hearings would be open to the public, unless a judge deemed otherwise. But that provision wasn’t included in the bill approved by the Senate, said attorney Jack Burton, who helped White prepare the original bill. The sponsors told the Journal the omission was inadvertent and would be fixed in the measure to be voted on by House Judiciary.

District Judge Shannon Bacon, who testified Monday at the hearing, said the judiciary supports opening hearings to the public. The measure would also give judges the authority to grant requests for guardianship or conservatorship court records that are currently sealed by law.

“It would allow law enforcement to request access to a file, access which currently doesn’t exist,” she said.

But Jim Jackson, director of Disability Rights New Mexico, told the committee, “We may be in the minority, but we think the emphasis towards transparency goes a little too far.” He said there could be privacy issues involved with just “anybody” having access to hearings.

Jackson said the measure, even without the Uniform Act, would provide more accountability by permitting more involvement of families in cases of their loved ones. Having more eyes on the process would also “help uncover some of the problems that have been out there,”Jackson said.
Ely questioned “what the hurry is with the Uniform Act.”

“It’s the sword of Damocles over the judiciary to completely change the system with the hope that some future legislature will fund it,” he said. An estimated $7 million would be required for the first two years of the Uniform Act.

Ely said New Mexico judges, who oversee guardians and conservators, generally don’t scare easily. “But I think they’re scared of the Uniform Act, and I think they should be,” he said.

White, who has been working on the Uniform Act adoption for a year, said he was able to secure about $1 million for the bill as is, but doesn’t know if that funding in House Bill 2 would remain if the model act is eliminated.



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Slimmer guardians bill gains steam

Big, small guardianship actions debated

Laurie Martinez of Santa Fe talks about a bill intended to correct problems with guardianship cases during a Senate Judiciary Committee

SANTA FE – Faced with an approaching deadline and a multimillion-dollar price tag, backers of legislation to overhaul the state’s troubled guardianship system presented dueling substitute measures late Wednesday in a hurried attempt to pass at least some significant changes this year to improve transparency and permit families more involvement with their protected, incapacitated loved ones.

Sen. James White, R-Albuquerque, offered to amend his mammoth bill that incorporates a new model guardianship law promulgated by the national Uniform Law Commission into two parts, delaying enactment for at least a year.

But a group of state district judges, mostly from Bernalillo County, helped devise a smaller substitute sponsored by Sen. Daniel Ivey-Soto, D-Albuquerque. That proposal, which is still evolving, would allow the judiciary to implement changes by July 1 that would open currently closed guardianship hearings to the public, expand the list of parties who would be notified, require bonding for conservators and rein in guardians’ authority to limit visitation of those deemed incapacitated.

“It’s a question of what can we do right now? What can we phase in? And what makes sense to ensure we’re going to have the funding (for the future)?” Ivey-Soto said.

No votes were taken after two hours of debate in the Senate Judiciary Committee, which is expected to continue the discussion Monday, if not sooner.

The 30-day legislative ends Feb. 15.

State District Judge Shannon Bacon of Albuquerque, who represented the judiciary at the hearing, told the committee that the courts favor improving the system, but that there are an estimated 5,000 to 7,000 existing guardianship/conservatorship cases that would have to come into compliance under the sweeping model guardianship act sponsored by White.

Under some cost estimates, up to $7 million would be required in each of the first two years if White’s version of the uniform guardianship act is adopted.

“A lot of the cost,” Ivey-Soto said, “is the cost of the dysfunctionality of the system that’s existed for many years.”

White said phasing in the uniform act over the next two years would give the courts time to overhaul the system and permit the Legislature to make amendments and finance the changes along the way.

“One million is what I’ve got to get this moving,” White said, in an apparent reference to funding he has secured to begin enacting the model law.

But Bacon countered, “One million dollars doesn’t even scratch the surface.” An expensive part of the model act requires judges to appoint lawyers to advocate for the wishes of the incapacitated person at the hearing, a cost that would be borne by the government,

As to the cost of the more immediate changes under Ivey-Soto’s proposal, Bacon said the judiciary would absorb the costs. “We will, I think the legal term is, suck it up.”




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Big, small guardianship actions debated

Scott signs elder guardianship bill; but for some, it's too late

Lori Smith and her mother, Bunny Garst

By Barbara Peters Smith

With Gov. Rick Scott's signing of a landmark guardianship reform bill on Thursday, adult wards of the state and their families will for the first time have a number they can call for official intervention, without having to go through an attorney, when problems arise.

The bill, authored by Sen. Nancy Detert of Venice, is intended for Floridians trying to challenge the complex legal system that strips citizens of their rights after they are deemed incapable of making their own decisions. It establishes a new Office of Public and Professional Guardians, which will monitor the people paid to handle those wards' affairs, and review allegations that this sweeping trust is being violated.

Detert has said the law “will be the model for the other states,” and was inspired by the anguish of family members who have told their stories in Tallahassee to press for systemwide reform. She called the bill her “absolute top priority” for this year's session, her last as she leaves the Legislature to run for the Sarasota County Commission.

“I would be frankly devastated to leave the Senate without having finished that job,” she said after Scott signed the bill.

Detert had tried to get the measure through the Legislature last year, but it failed, in part because of Scott's concerns. This year, the governor was on board.

“We couldn't have done it without him, because we tried doing it without him and it didn't work,” Detert said. “The governor himself heard from lots of people in his travels, because Naples is one of the target areas for unscrupulous folks preying upon elderly wealthy old ladies. He heard it first hand. He was very supportive. I never doubted that he'd sign it. I'm thrilled that he did. He said he would come to our community and do a ceremonial signing, which will be great.”

For many of the families profiled in the Herald-Tribune's ongoing coverage of this topic, the new standards and scrutiny amount to a welcome change that will come too late for them personally. This month Bunny Garst of Bradenton saw her husband lose his last remaining right — to choose where he lives — after his family's costly legal struggle of more than three years with his professional guardian.

She wonders whether his case might have unfolded differently, if she could have had early access to what Detert has called a “complaint department.”

“We have to have somewhere to turn,” said Garst, who retained a series of attorneys in an effort to reverse her husband's assignment to a paid guardian — and fight that guardian's actions to sell off her husband's property. “The frustration is that all this is going on and you're totally helpless.”

In September 2011, Garst called Florida's Adult Protective Services and asked for an investigation of her husband's living situation. She was concerned, she said, that Claflin Garst Jr., a former Manatee County judge, had rapidly advancing dementia and was being unduly influenced by an employee. When she and the employee both petitioned to be named guardian, the judge appointed a professional instead.

The only right Claflin Garst retained in these proceedings was the freedom to choose his residence, and for years he remained at home with paid caregivers on his buffalo ranch — where friends and family contend that it was difficult to visit him. In February his guardian asked the court to remove that right and allow placement in a facility that offers memory care.

“Due to the deteriorating condition of the ward,” the petition states, “the aides are not able to provide the level of service required to maintain him in a safe nurturing environment.”

“That ranch means everything in the world to him,” said Bunny Garst, who was visibly upset after this petition was granted on March 1.

The guardian did not respond to a request for comment, and Claflin Garst's court-appointed attorney declined to comment.

Along with his order, 12th Judicial Circuit Chief Judge Charles E. Williams called for a status conference in 90 days to assess the ward's condition, and “strongly encouraged” his guardian and family to consider using a new, voluntary Eldercare Coordinating program to resolve their ongoing differences. But Bunny Garst said her attorney advised her that such a step at this stage would be “too little, too late.”

The number of professional guardians in Florida has grown from 23 in 2003 to nearly 500 today, and is expected to climb as the baby boom generation ages.

In a December 2014 series, “The Kindness of Strangers,” and followup stories, the Herald-Tribune chronicled the struggles of wards and their families with an underfunded legal system that draws on the life savings of wealthier wards to support the “pro bono” work of attorneys and guardians for indigent wards. The project also found that wards' rights under the statute were routinely disregarded, and that the practice of placing elders under “temporary emergency guardianship” typically led to permanent guardianship before anyone could contest the process.

Sam Sugar, an Aventura physician who founded an organization called Americans Against Abusive Probate Guardianship, said recent reforms to the system have been limited in scope, and more profound change is needed.

He worried that Detert's bill, while establishing state oversight, still leaves the burden of proof on wards and their families. And it does not allow for criminal prosecution of wrongdoing by guardians.

“The bill does nothing, absolutely nothing, to address grievances for active guardianships,” he added, “or those that have been closed by virtue of the death of the ward. The guardianship racket is so complicated and well-entrenched ... it may take something far stronger than this type of bill to adequately address it.”

WHAT THE NEW LAW WILL DO

• Encourage courts to consider appointing guardian advocates as an alternative to full guardianship.

• Place the Florida Secretary of Elder Affairs in charge of a new Office of Public and Professional Guardians.

• Fund the office with six full-time staff positions in the first year, and a recurring budget of almost $700,000.

• Direct that office to establish standards for guardians by Oct. 1.

• Generate procedures for monitoring guardians and looking into allegations against them.

• Create a way to discipline guardians who fail to meet professional standards.

• Establish a training program for guardians.

• Spell out grounds for discipline or penalties.

• Establish a matching grant program to fund local public guardianships for indigent wards.

For more information on adult guardianship in Florida, go to heraldtribune.com/guardianship

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Scott signs elder guardianship bill; but for some, it's too late

In guardianship bill, checks that could have helped others

“Once my wife died, they just shoved me aside,” Don Herman said. “I think they realized they made a big mistake and tried to cover it up.”

On a Sunday in December, Don Herman looked at the front page of his Herald-Tribune and was carried back to a harrowing time in his life three years before.

He remembered the two weeks in 2012 when he and his wife, Kathryn, were held under guardianship by the state of Florida — and he lost her forever.

After the publication of “The Kindness of Strangers: Inside Elder Guardianship in Florida,” three bills to reform the system were introduced in this year’s Legislature. This unprecedented attention to a little-known aspect of probate law — designed to protect older adults from abuse or exploitation when they lack capacity to make decisions — led to media coverage throughout the state, and made more Floridians aware of flaws in the adult guardianship process. 

Only one bill made it through a session truncated by an impasse over Medicaid expansion to reach Gov. Rick Scott’s desk for signing. That is HB5 — sponsored by Rep. Kathleen Passidomo, R-Naples — which tightens many aspects of the statute that made it easy to seize control of elders’ assets, and also more clearly spells out the duties of a state-appointed guardian.

“That’s important,” Passidomo said. “With the bad guardians, at least now we can say, if they’re not acting in the best interests of the ward, it gives tools to interested parties to challenge the actions of guardians that are bad. And guardians that exploit their wards can be criminally prosecuted, which is huge.”

 A case of emergency

Another provision, refined on the bill’s journey through committees and strongly contested, takes aim at the emergency temporary guardianship process — a fast-track option intended to address cases where an elder’s safety is immediately at risk.

But most Florida wards enter the system as emergency cases, because it is more expedient. Critics say this entangles people in a baffling and swiftly moving process that is notoriously difficult to reverse.

After a judge removes an individual’s civil rights and appoints a guardian, a ward’s ability to fight back in court is limited. Under full guardianship, this person loses access to all bank accounts and cannot make decisions — such as changing doctors or hiring a new attorney.

By law, anyone “interested” in a person’s welfare can petition the court to make him or her a ward. With emergency temporary guardianship, a judge appoints a guardian even before an evaluation of capacity by three mental health professionals. Two of them must find the person incapacitated for the guardianship to become permanent.

Under HB5, an “alleged incapacitated person” must be notified at least 24 hours before an emergency court hearing — unless the petitioner can prove that such notice would place the prospective ward in danger.

“Is 24 hours enough? Of course not,” said Sam Sugar, an Aventura physician who founded an organization called Americans Against Abusive Probate Guardianship, and spoke in Tallahassee on behalf of all three reform measures. “But it’s better than nothing. At least there is this sliver of hope of intervening.”

Herman, a Sarasota resident, believes that if he and his wife had received 24 hours’ notice before a judge removed their rights in court, maybe their guardianship could have been averted. (Continue Reading)

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In guardianship bill, checks that could have helped others

Scott to Consider Single Elder Guardian Bill

One of three elder guardianship bills considered during the legislative session passed, the Sarasota Herald-Tribune reports.

Gov. Rick Scott will consider signing into law House Bill 5, which requires advance notice before hearings on the appointment of emergency temporary guardians, according to the Herald-Tribune.

It also allows the mediation of guardianship disputes among family members and requires reporting of incidents of abuse, neglect and exploitation of wards by guardians.

The bills were proposed after the Herald-Tribune’s series “The Kindness of Strangers: Inside Elder Guardianship in Florida” exposed elder abuse issues in Florida’s probate court system, the Herald-Tribune reports.

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Scott to Consider Single Elder Guardian Bill