If the court decides you can’t make your own decisions due to incapacity, it will appoint a guardian for you. You then lose the right to make your own decisions. Your guardian gets extensive authority over your life, from deciding where you will live, with whom, who you can socialize with, what medical treatments you should get, and how your money should be spent. And the guardian will be paid from your pocket. According to the U.S. Justice Department, 1.3 million adults are currently under guardianship.
Guardians are supposed to protect the interests of the elderly and the vulnerable who cannot care for themselves. Thankfully, most do. But when someone has such extensive power, especially if money is involved and oversight is lax, abuses are bound to occur. And occur they have. One particularly egregious case in Florida is that of Rebecca Fierle, a court-appointed “professional” guardian based out of Orlando. Operating under the protection of the legal system, she is accused of widespread financial and other forms of abuse against her wards. The Orange County Clerk’s Office claims she double-billed for services and collected at least $4 million in fees without getting required court approval. She signed a do-not-resuscitate order for one ward, 75-year-old Navy veteran Steven Stryker, against the wishes of both his family and his medical staff. He was not given life-saving treatments and passed away in 2019. You can read about this horrifying case here.
If you suspect someone you know is being subjected to an abusive guardianship, call the Florida Elder Abuse Hotline at (800) 962-2873. You may also complete an online report here.
The need for serious reform has become increasingly obvious to lawmakers on both sides of the aisle, both at the state and federal level. We tell you about their proposed reforms in this post. But the bottom line is this: the best way to avoid falling prey to a bad guardian is to avoid court-ordered guardianship altogether. Happily, you can achieve this goal by having certain legal arrangements in your estate plan.
Florida Guardianship Improvement Task Force Recommendations
The latest effort to reform Florida’s flawed guardianship system was the establishment of the Florida Guardianship Improvement Task Force in July 2021. Comprised of judges, lawyers and others, the panel heard from interested persons from all walks of life, and issued its findings in November 2021. Here are the main takeaways:
- Florida must establish a centralized, statewide database for guardianships. This is the most pressing issue, according to the task force. There is no comprehensive, centralized list of Florida guardianships at present. No one knows precisely how many guardianships exist, why they were established, or in what geographical areas. This lack of data makes it difficult to identify patterns that could be red flags for potential abuse. Notes Orange County Comptroller Phil Diamond: “Nobody knew that Rebecca Fierle had initiated something like 280 cases in Orange County…Our concerns about a lack of data on a local level are just magnified on a statewide level when you think about the huge number of guardianships and guardians.”
- Judges who make decisions about appointing guardians need to give more weight to the preferences of wards as expressed in their advance directives and other estate planning documents. Notes Dr. Sam Sugar, founder of Americans Against Abusive Probate Guardianship and author of Guardianships And The Elderly: The Perfect Crime: “Perhaps the most important [recommendation] in terms of preventing guardianships is making sure that the courts and [Florida Bar] understand that they can no longer ignore or revoke or otherwise attack properly constituted advanced directives…That is the single biggest problem that we have, and that problem winds up creating many of the abusive guardianships that we see.”
- Nursing homes and health care facilities should no longer be permitted to propose or recommend a guardian for a resident under their care. This will minimize conflicts of interest. Before asking the courts to appoint a guardian, the facility should be required to demonstrate they have exhausted less restrictive options, including relying on health care proxies and other pre-need directives.
- Chief judges should be notified whenever a guardian in their circuit is disciplined.
- Disabled individuals should, if possible, be permitted to make decisions with “supported decision-making,” without losing all their rights under court-ordered guardianship. “Supported decision-making” allows a disabled individual to get input from someone they trust and is preferable to full-blown guardianship. Toward that end, the task force urges lawmakers to support a Supported Decision Making law in Florida. You can read about the proposed law for supported decision-making here.
Read all the task force recommendations in detail here.
Federal Initiatives
Congress has also looked at ways to combat guardianship abuse, with concern ramping up on both sides of the aisle as a result of the highly publicized Britney Spears guardianship battle. Among the initiatives being discussed in Congress:
- Freedom and Right to Emancipate From Exploitation Act: U.S. Reps. Charlie Crist (D-FL) and Nancy Mace (R-SC) introduced the Freedom and Right to Emancipate from Exploitation (FREE) Act in July 2021. H.R. 4545 would give any American under guardianship the right to petition the court to have their private or professional guardian replaced with an independent caseworker. Independent caseworkers would be paid with tax dollars and required to disclose their finances. Presumably this would make them less prone to conflicts of interest. Additionally, the petitioning ward would not be required to demonstrate that the private or professional guardian engaged in misconduct. The bill would provide states with the funds to hire caseworkers as public guardians. Among the bill’s supporters is the Center for Estate Administration Reform organization. Its director, Rick Black, states that the organization is “ very encouraged by the changes Congressman Crist’s FREE Act will bring about if made federal law. If a young vibrant wealthy celebrity like Britney Spears can be exploited for 13 years by a court system anyone can. Most victims lack her voice and too many vulnerable adults, seniors and the developmentally disabled, are being abused by the predatory legal community who routinely leverage the dysfunction of our nation’s equity court to exploit the vulnerable.” Read the FREE Act bill here.
- Guardians Aren’t Above Prosecution Act: Introduced in November 2011 by Charlie Crist, H.R. 5971 would provide additional legal protection to vulnerable adults by allowing guardians to be criminally prosecuted for fraudulent behavior.
Protect Yourself From Guardianship With These Steps
If you become incapacitated, having certain legal plans in place can help keep you out of guardianship. Talk with your elder law attorney about putting these plans in place. Steps include:
- Create and fund a living trust
- Establish a valid Health Care Surrogate
- Establish a Durable Power of Attorney and making sure it contains all the appropriate authorities
- Designate a pre-need guardian, so that if you do need a guardian in the future, you have indicated the individual you would prefer to serve
