12_07_guardianship
(Source: Sarasota Herald-Tribune, Elder guardianship: A well-oiled machine.)

Most of the 2015 legislative changes to our Probate and Trust Codes were rolled into House Bill 343, which I reported on here. This blog post is all about this year’s overhaul of our adult guardianship system, which was spearheaded by Rep. Kathleen Passidomo, R-Naples, and advocated for by AARP Florida, among others.

House Bill 5 was the legislative vehicle for a wide-ranging package of reforms responding to criticisms of Florida’s existing elder guardianship system (some valid, some not so much), many of which were chronicled in a special multi-part investigative series published by the Sarasota Herald-Tribune entitled Elder guardianship: A well-oiled machine. In my opinion, to the extent we do have a “systemic” problem, the root cause is an underfunded and overworked court system where judges are routinely expected to juggle thousands of cases at a time with little or no support. Bottom line, you get what you pay for.

Regardless of whether you believe our court system needs better funding (my prescription) or improved checks and balances (HB5’s approach), I think it’s safe to say that but for the Herald-Tribune’s investigative reporting, nothing would have changed (yay for newspapers!). So it must have been with no small amount of satisfaction that this same team reported on HB5’s passage in Adult guardianship bill becomes law. Here’s an excerpt:

With Florida’s population aging in advance of the rest of the nation, [the bill’s author and primary sponsor, Rep. Kathleen Passidomo, R-Naples,] said she saw an urgent need “to give courts a little more tools as they manage guardianship files. We put in some language that hopefully lets the bad guys know we’re looking over their shoulders.”

The law — which includes criminal penalties for exploitation or abuse of a ward, requires more notice of emergency temporary guardianship proceedings, and makes it harder to suspend a family member’s power of attorney during the litigation process — takes effect on July 1.

“This legislation advances Florida guardianship law,” said Zayne Smith, associate state director of advocacy for AARP Florida, which worked to get it passed. “It clarifies how and when guardians are appointed, better protects wishes and rights of wards and codifies the duties and responsibilities of court-appointed guardians. Legislators who sponsored and supported guardianship legislation during session deserve kudos.”

A working lawyer’s guide to HB5’s legislative reform package:

For those of us in the trenches, a good first start in terms of making sense of how HB5’s reforms will actually impact our day-to-day practice is the bill’s Legislative Staff Analysis, which I’ve summarized and annotated below.

[1] Fiduciary Duties of a Guardian:

HB5 amends F.S. 744.107 and F.S. 744.1075 to authorize a court to appoint the Office of Criminal Conflict and Civil Regional Counsel as a court monitor for an indigent ward. The bill would serve to codify current practice in that the Office of Criminal Conflict and Civil Regional Counsel are currently providing this service. The Regional Conflict Counsel Offices were created by act of the legislature in 2007 to represent indigent clients. Here’s a link to Region One’s website, which in turn has links to all of the other regions.

The bill creates F.S. 744.359, which provides that a guardian may not abuse, neglect, or exploit a ward under the guardian’s care. Exploitation is described as any action whereby a guardian commits fraud in obtaining appointment as a guardian, abuses his or her power as guardian, or wastes, embezzles, or intentionally mismanages the ward’s assets. Any person believing that a guardian is abusing, neglecting, or exploiting a ward must report the incident to the central abuse hot-line of the Department of Children and Families. And courts are directed to interpret F.S. 744.359 in conformance with F.S. 825.103, which creates criminal penalties related to the exploitation of an elderly person or disabled adult.

The bill amends F.S. 744.361(1) to confirm and codify pre-existing Florida law that a guardian is a fiduciary with respect to a ward under the guardian’s care. The bill further amends F.S. 744.361 to impose additional statutory duties upon a guardian as a fiduciary:

  • To act only within the scope of the authority granted to the guardian;
  • To act in good faith;
  • To act in the ward’s best interests; and
  • To keep clear, distinct, and accurate records.

Specific to guardians of the person, the bill creates the duty of a guardian to:

  • Consider the expressed desires of the ward;
  • Allow the ward to maintain contact with family and friends except where contact may harm the ward (the court may review such decisions upon petition by an interested person);
  • Not restrict the physical liberty of the ward more than necessary;
  • Assist the ward in developing or regaining capacity if medically possible;
  • Notify the court if the guardian believes that the ward may have capacity to exercise one or more of the ward’s removed rights;
  • Make provisions for medical services and, to the extent possible, acquire a clear understanding of the risks and benefits of a recommended course of treatment;
  • Evaluate the ward’s medical and health care options, financial resources, and desires in making decisions regarding the ward’s residence; and
  • Advocate for the ward in institutional and residential settings.

[2] Guardianship Plan:

HB5 amends F.S. 744.367 to revise when a guardian of the person must file an annual guardianship plan. Where a calendar year filing is required, the plan must be filed between September 1 and December 1 of the previous year. Otherwise, the plan must be filed between 60 and 90 days before the last day of the anniversary month. The bill also amends F.S. 744.369 to provide that a guardian may continue to act under a previous year’s annual guardianship plan until the next year’s annual guardianship plan has been approved by the court unless otherwise ordered by the court.

[3] Emergency Temporary Guardianship:

HB5 amends F.S. 744.344(4) to allow for the appointment of an emergency temporary guardian if a petition for appointment of a guardian has not been ruled upon at the time of the hearing on the petition to determine incapacity. The bill also amends F.S. 744.3031 to require that notice of the filing of a petition for appointment of an emergency temporary guardian and any hearing thereon be served on an alleged incapacitated person, and the alleged incapacitated person’s attorney, at least 24 hours prior to commencement of the hearing unless the petitioner can demonstrate that substantial harm to the alleged incapacitated person would occur if notice was given.

[4] Costs and Fees of Examining Committee:

HB5 amends F.S. 744.331(7)(c) to provide that if the petition is dismissed or denied, the fees of the examining committee are paid upon court order as “expert witness” fees under F.S. 29.004(6). This change implements the provisions of F.S. 29.004(6), which awards fees to court appointed experts generally, and provides a secure source of funding to insure that the members of the examining committee are reasonably compensated as contemplated by F.S. 744.331 without incentive to find incompetency. The bill also provides that, where the petitioner was found to have filed a petition in bad faith and the state has paid the members of the examining committee, the petitioner must reimburse the state for fees paid.

[5] Power of Attorney:

HB5 amends F.S. 709.2109 to provide that if proceedings are initiated to determine the principal’s incapacity or for the appointment of a guardian advocate, the power of an agent under a power of attorney is not automatically suspended if the agent is the parent, spouse, child, or grandchild of the principal (“relative agent”). The power of such agents to act on behalf of the principal may only be suspended by the court pursuant to a request by verified motion.

The bill also creates F.S. 744.3203, which specifies the motion procedure to suspend the authority of a relative agent. The motion may be filed at any time during proceedings to determine incapacity but must be filed before the entry of an order determining incapacity. The plain language of the bill suspends the power of a relative agent upon the filing of the motion. The motion must:

  • Set forth one of the following grounds for suspending the authority of the relative agent:
    • The agent’s decision is not consistent with the alleged incapacitated person’s known desires;
    • The power of attorney is invalid;
    • The agent has not discharged his or her duties or incapacity or illness renders him or her incapable of discharging those duties;
    • The agent has abused powers; or
    • There is a danger that the property of the alleged incapacitated person may be wasted, misappropriated, or lost unless the authority under the power of attorney is suspended.
  • Allege specific statements of fact demonstrating that there are grounds to justify the suspension of the power of attorney.
  • Be verified by the petitioner under penalty of perjury.

It is not grounds to suspend a power of attorney if a dispute exists between the agent and the petitioner and the matter is appropriately resolved in a different forum or a legal proceeding other than a guardianship proceeding.

The court must schedule an expedited hearing on the motion upon the response of the relative agent. Notice of the hearing must be provided to all interested persons, the alleged incapacitated person, and the alleged incapacitated person’s attorney. If the agent’s response sets forth an emergency situation, the property or matter involved, and the power to be exercised by the agent, notice is not required. The court order must set forth what powers the agent is permitted to exercise, if any, pending the outcome of the petition to determine the principal’s incapacity.

Attorney fees and costs may be awarded to a relative agent who successfully challenges the suspension of the power of attorney if the petitioner’s motion was made in bad faith.

[6] Persons Qualified to Serve as Guardian:

HB5 amends F.S. 744.309 to provide that a for profit corporate guardian existing under the laws of this state is qualified to act as guardian of a ward if the entity:

  • Is qualified to do business in the state;
  • Is wholly owned by the person who is the circuit’s public guardian in the circuit where the corporate guardian is appointed;
  • Has met the registration requirements of F.S. 744.1083; and
  • Posts and maintains a blanket fiduciary bond or a liability insurance policy.

If the corporate public guardian posts a fiduciary bond, the bond must:

  • Be at least $250,000 and posted with the clerk of the circuit court in the county in which the corporate guardian has its principal place of business. The corporate guardian must provide proof of the bond to the clerks of each additional circuit court in which the corporate entity is serving as guardian.
  • Cover all wards for whom the corporate entity is serving as guardian at any given time.
  • Have terms that cover the acts or omissions of each agent or employee of the corporation who has direct contact with the ward or the ward’s assets.
  • Be payable to the Governor and his or her successors.
  • Be conditioned upon the faithful performance of all duties of the guardian.

The liability of the provider of the bond is limited to the face value of the bond. The bond is in lieu of and not in addition to the bond required under F.S. 744.1085 for professional guardians, but is in addition to any bonds required under F.S. 744.351 to exercise the authority of a guardian. The expenses incurred to satisfy the bonding requirements may not be paid from the assets of the ward.

If a corporate guardian maintains a liability insurance policy, the policy must cover any losses sustained by the guardianship caused by acts, errors, omissions, or any intentional misconduct committed by the corporation’s officers or agents and each agent or employee who has direct contact with the principal or the principal’s assets up to $250,000. The corporate entity must provide proof of the insurance policy to the clerks of each additional circuit court in which the entity is serving as guardian. A for-profit corporation that has been appointed as guardian prior to the effective date of the bill is deemed qualified to serve in those guardianships in which the corporation has already been appointed.

[7] Appointing a Guardian:

HB5 amends F.S. 744.312 to require that a court consider the wishes of the next of kin of the alleged incapacitated person if he or she cannot express a preference concerning who should be appointed permanent guardian. A court is also prohibited from giving the emergency temporary guardian preference in the appointment of a permanent guardian.

Further, except where designated and appointed as the standby or preneed guardian, the bill places restrictions on the appointment of professional guardians as permanent guardian of a ward. A court that does not utilize a rotation system for the appointment of a professional guardian in a particular matter must make specific findings of fact regarding why the guardian was selected by the court. The order must reference each factor a court is required to consider in the appointment of a permanent guardian. The bill also prohibits a professional guardian from being appointed as the permanent guardian of a ward if the professional guardian served as the emergency temporary guardian of the ward unless the ward or the ward’s next of kin requests the appointment. The court may waive the restriction, by specific written findings of fact, if the special requirements of the guardianship demand that the court appoint a guardian because he or she has special skills, talent, or experience.

The bill also amends F.S. 744.3115 and F.S. 744.345 to provide that the court must specify in any order appointing a guardian of the person and in all letters of guardianship what authority the guardian may exercise with regard to the ward’s health care decisions versus what authority, if any, a health care surrogate previously designated by the ward may continue to exercise.

Additionally, the bill amends F.S. 744.331(6) to require that a court consider the incapacitated person’s unique needs and abilities when determining what rights should be removed in a guardianship proceeding. It further requires that the court only remove such rights which the alleged incapacitated person does not have the legal capacity to exercise.

[8] Costs and Fees Associated with Guardianship Administration:

HB5 adds new subsection (9) to F.S. 744.108 dispensing with any requirement for expert testimony to support an award of fees unless requested. Expert testimony may be offered at the option of either party after giving notice to interested persons. If expert testimony is offered, a reasonable expert witness fee must be awarded by the court and paid from the assets of the ward. The bill also amends F.S. 744.108(8) to provide that the court may award attorneys’ fees and costs associated with proceedings to determine the fees of a guardian or an attorney who has rendered services to a guardian or ward, including court-appointed counsel.

[9] Restoration to Capacity:

HB5 amends F.S. 744.464 to establish a “preponderance of the evidence” burden of proof for the restoration of an incapacitated person’s rights. The bill also requires that a court make specific findings of fact regarding competency and that a court to give priority to any suggestion of capacity and advance such cause on the judicial calendar.

[10] Settling Claims of Minors:

Although almost all of the legislative changes focused on the elderly, there were a few changes having to do with minors.

Court approval is required to settle any claim of a ward arising before or after the appointment of a guardian or any claim of a minor valued in excess of $15,000. The court approval process requires a petition setting forth the terms of the settlement, which may also be reflected in a subsequent order approving the settlement. HB5 amends F.S. 744.3025(1)(a) to provide that the court may appoint a guardian ad litem only “if the court believes that a guardian ad litem is necessary to protect the minor’s interest.”

The petition and the order are part of a court file, and therefore, are a matter of public record and open for inspection under current law even if the settlement agreement contains a confidentiality provision. House Bill 7 (a companion bill to HB5), creates a public records exemption for these proceedings. As explained in HB7’s Legislative Staff Analysis, the bill amends F.S. 744.3701 to provide that any court record relating to the settlement of a ward’s or minor’s claim, including a petition for approval of a settlement on behalf of a ward or minor, a report of a guardian ad litem relating to a pending settlement, or an order approving a settlement on behalf of a ward or minor, is confidential and exempt from the provisions of F.S. 119.07(1) and section 24(a), Art. I of the State Constitution, and may not be disclosed except as specifically authorized.

Because the record is made confidential and exempt, it may not be disclosed except as provided in law. HB7 amends F.S. 744.3701 to authorize inspection of such records by parties that may be involved in a proceeding to approve a minor’s settlement agreement “upon a showing of good cause.” The list of parties authorized to inspect these records now includes all of the following:

  • The court;
  • The clerk or the clerk’s representative;
  • The guardian;
  • The guardian’s attorney;
  • The guardian ad litem related to the settlement (if any);
  • The ward if he or she is at least 14 years of age and has not been declared totally incapacitated;
  • The attorney for the ward;
  • The minor if he or she is at least 14 years of age;
  • The attorney representing the minor with regard to the minor’s claim; and
  • As “otherwise provided” by Ch. 744.