Marie Winkelman, 89, had her rights removed a year ago at the request of her stepson-in-law, and is bewildered by the idea that she no longer has access to her own finances. She has hired two attorneys in the fight to have her rights restored, and yet the case drags on with little end in sight. (August 5, 2014) (Herald-Tribune staff photo by Thomas Bender)

A special multi-part investigative series published by the Sarasota Herald-Tribune entitled Elder guardianship: A well-oiled machine, reported that while Florida has an efficient system of identifying and caring for fragile elders, “tapping their assets is a growth business.” Here’s an excerpt from the Herald-Tribune report:

The idea behind guardianship is to protect older citizens. But Florida has become a place where quiet, desperate disasters happen daily, often touched off by a single phone call.

In the middle of an unprecedented national longevity trend, half of all Americans 85 and over are believed to experience significant cognitive decline. Many of them wind up in sunny Florida, far away from sons and daughters — some with enough assets to make them attractive to scammers and cheats, others outliving their savings and utterly dependent on the state.

In response to a pressing need, Florida has cobbled together an efficient way to identify and care for helpless elders, using the probate court system to place them under guardianship.

But critics say this system — easily set in motion, but notoriously difficult to stop — often ignores basic individual rights. Most of it plays out in secret, with hearings and files typically closed from the public.

In my opinion most of the problems plaguing Florida guardianship proceedings can be traced back to an underfunded and overworked state court system where judges are routinely expected to juggle thousands of cases at a time (see here). In the wills, trusts and estates arena we can work around this problem by largely opting out of the public court system via mandatory arbitration clauses in our wills and trusts (see here, here). The guardianship arena doesn’t lend itself to the same privatization solution. Which means we’ll need a legislative fix.

Will things change?

As reported by the Florida News Service in Bill Seeks To Stop ‘Cockroaches’ From Preying On Seniors, the Herald-Tribune investigation is already generating a good amount of legislative activity.

A Senate panel on Thursday unanimously approved a bill aimed at protecting Florida seniors from predatory “professional guardians,” described by one lawmaker as “cockroaches.”

The bill (SB 1226), filed by Sen. Nancy Detert, R-Venice, would expand the Statewide Public Guardianship Office at the Department of Elder Affairs, with an eye to tightening oversight of people who assume control of a senior citizens’ finances.

That’s the good news. Now here’s the bad. No matter how good the legislation might be, it’s all for naught if the funding’s not there. Which is why I found the following comments by Sen. Detert troubling:

Detert said the Department of Elder Affairs estimates the cost of her proposal at $3 million for 40 full-time employees, which she thought was a little high.

“I think we can come to a middle ground with the department,” Detert said. “I think we can work together and come up with a system that tightens up the good laws we already have.”

Investigative journalism still matters:

By the way, this wouldn’t be the first time hard hitting investigative journalism sparked a legislative overhaul affecting what goes on in our probate courts. A Pulitzer Prize winning series of editorial reports by the St. Petersburg Times lead to a major overhaul of our probate fee statue (see here). And more recently, an investigative report published by the AARP on how durable powers of attorney are used to financially exploit the elderly, lead to major reforms of Florida’s power-of-attorney statute (see here).

Stay tuned for more . . .