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
Full Article & Source:
Scott signs elder guardianship bill; but for some, it's too late
