A committee of attorneys is pushing a rewrite of Florida law that would
block public access to guardianship court records by making them
confidential — a move critics say would create a lack of transparency
that could foster exploitation.
The guardianship industry has been plagued by a statewide scandal since last year, when former Orlando guardian Rebecca Fierle was accused of abusing and neglecting an incapacitated client who died under her care.
The Orlando Sentinel and other news outlets used court records to
expose widespread flaws in Florida’s guardianship system, prompting
state lawmakers to pass reforms aimed at reducing conflicts of interest
and creating additional oversight for the court-appointed
decision-makers, who assume full control over the lives of their wards.
But David Brennan, an Orlando attorney who is part of the committee
within the Real Property, Probate and Trust Law Section of the Florida
Bar, said the group’s goal is to protect the basic privacy rights of
incapacitated people. The proposal was adopted by the section at an Aug. 22 meeting but still has to get approval from the bar’s Board of Governors before they can lobby on behalf of the bill.
“[You] do not have to show your family, neighbors and the world at
large your funeral plans, your assets, how your money is spent, what
medications you buy, and a thousand other personal information items,”
Brennan said in a statement. “Incapacitated people did nothing to
sacrifice their privacy for the sake of the curious. They are not an
entertainment. Giving open access to a person’s life is not only an
indignity; it is potentially dangerous, financially and emotionally.”
Orange County Comptroller Phil Diamond, whose office audited Fierle’s
guardianship cases, said the investigations may not have been as
“thorough” if his employees did not have access to public court records.
Making them confidential could “create an atmosphere of opportunity for
fraud, waste or abuse to occur more easily,” he said.
Diamond’s audits found Fierle had billed the AdventHealth hospital system roughly $4 million to care for hundreds of incapacitated clients, an arrangement not allowed under Florida law without court approval.
“In the past, the media has shined a light on problems, and you would
not have been able to do that without access to the records,” Diamond
said. “The effect of the media or other independent sources doing that
is greater protection for our most vulnerable citizens. I think it would
be wrong to take away that protection.”
The committee’s effort to “modernize” Florida’s guardianship laws,
which haven’t been fully revised since the ’90s, has been ongoing since
2012, according to the proposal’s authors.
Attorneys from the Real Property, Probate and Trust Law Section
(sometimes referred to as “reptiles” because of their acronym, RPPTL)
currently chair the committee, though other lawyers from the Elder Law
sections have been involved in the rewrite.
The bill proposes to “increase the protections for incapacitated
individuals in Florida” by making confidential all court records related
to incapacity and guardianship. Under the current law, annual
accountings, inventories and guardianship plans that contain personal
medical and financial information are exempt from public disclosure.
But the public is allowed to see other documents in guardianship cases,
including when guardians ask judges to sell their wards’ home, open a
security deposit box or bill fees from wards’ estate for themselves and
their attorneys.
Under the committee’s proposal, only eight kinds of people would have
access to those documents, including the judge, clerk, guardian,
guardian’s attorney, ward’s attorney, a guardian ad litem, adult wards
with some capacity and the Office of Public and Professional Guardians,
the state’s guardianship oversight agency.
The public, family members and wards who have been deemed totally
incapacitated would need to show a judge “good cause” for why they
should be allowed to see the court file.
“People who are incapacitated have hardship enough,” Brennan said.
“They are not zoo attractions. They should not lose their equal
protection rights to accommodate the curious.”
Palm Beach County Clerk and Comptroller Sharon Bock said the proposed changes would hinder transparency
and could increase the costs of guardianship, because family and
watchdog advocacy groups would likely need to hire an attorney to see
records — a move that could be fought by guardians and their attorneys
in court.
“The whole time, the person under guardianship finances and pays for all this,” she said.
Bock and Palmieri noted the proposed bill impacts the monitoring system
that clerks have in place for guardianships in several ways, including
by narrowing the definition of “audit.”
“Do you really want the auditees defining what the audit is?” Bock
asked. “They’re redefining what it means to monitor and provide
oversight of the attorneys and the guardian.”
Attorneys on the committee did not respond when asked why they had
narrowed the definition of “audit.” But committee member Sancha Brennan
Whynot said the change wouldn’t thwart accountability because all
financial transactions of a guardian are reported to the court and
subject to an audit by the clerk.
“Once audited, the court then has the authority to require additional
reporting or disclosure by the guardian and can hold the guardian
accountable in a multitude of ways,” she said.
Clay Calvert, director of the Marion B. Brechner First Amendment
Project at the University of Florida, argued any legislation that has a
confidentiality provision should at least allow an exception for cases
in which the public interest requires disclosure.
For example, when the legislature made photos and videos of autopsies exempt Florida’s public records law — amid a controversy sparked by the Sentinel’s request for photos from the autopsy of legendary NASCAR driver Dale Earnhardt — it allowed for a judge to grant their disclosure on a case-by-case basis.
“The last thing that a problem-plagued system such as this needs is a
confidentiality provision that thwarts transparency,” Calvert said.
“Without transparency, there can’t be accountability for the guardian
system. ... There is a public interest in ensuring the state is
safeguarding and protecting the ward from abuse.”
Aside from the Sentinel, newspapers across Florida have used public court records to report on flaws and abuse in the guardianship system, including the Miami Herald, Sarasota Herald-Tribune, Palm Beach Post and the Miami New Times.
But Brennan insisted the claim that the confidentiality provision will make exploitation by guardians easier is “wrong.”
“It provides [more] protection by keeping an elderly ward’s (or a
child’s) private life out of the reach of predators, gadflies or other
self-servers,” he said. “I submit that family members, helpful neighbors
and the world should [never] be able to snoop an elderly person’s
documents without good cause.”
Sam Sugar, founder of the South Florida-based organization Americans
Against Abusive Probate Guardianship, called the change a “brazen
attempt” by attorneys to turn the guardianship law into “an even more
underhanded and massively profitable business model.”
“Should [the bill] become law, no senior in Florida will be safe and no
one in their right mind would move to Florida in retirement,” he said.
Full Article & Source:
Court records helped expose flaws in Florida’s guardianship system. Industry lawyers want to make them confidential
