Here’s my summary of what happened legislatively in 2018 on the elder law and guardianship front. The legislative focus this year is on preventing and/or responding to instances of elderly and vulnerable adult financial exploitation.

This is part two of my legislative summary for 2018. I previously reported here on the probate and trust related legislation for 2018.

[1] New tools in the fight against financial exploitation of the elderly:

The Legislative Staff Analysis for CS/HB 1059 does a good job of describing the scope of the financial-exploitation threat facing Florida’s large (and growing) elder population. Here’s an excerpt:

Florida is home to more than 5.2 million residents age 60 or older, and has the most residents over the age of 65 in the nation. In 2016, 35.2 percent of individuals nationwide 65 years of age or older were reported to have a disability. Moreover, 19 percent of elders surveyed in a 2016 study conducted by the state’s Department of Elder Affairs (DOEA) indicated that they required assistance with activities of daily living, such as walking, bathing, and dressing.

True incidences of abuse, neglect, or exploitation of the elderly or disabled adults are often difficult to assess. While abuse, neglect, and exploitation of a vulnerable adult can take various forms, the DOEA has described the “financial or material exploitation” of a vulnerable adult to include improper use of an elder’s funds, property, or assets; cashing checks without permission; forging signatures; forcing or deceiving an older person into signing a document; and using an ATM/debit card without permission.

Vulnerable adults residing in nursing homes, assisted living facilities, and adult family care homes are particularly vulnerable to financial exploitation due to the risk of discharge or eviction because of the inability to pay for necessary care and services. Under state and federal law, a nursing home may discharge or transfer a resident with 30 days written notice if the resident has failed to pay a bill for care, after reasonable and appropriate notice for residence at the facility. Assisted living facilities and adult family care homes can relocate or terminate the residency of a vulnerable adult with 45 days notice or 30 days notice, respectively. Consequently, the responsibility of caring for exploited vulnerable adults at risk of discharge or eviction may fall on various state and federal programs.

In 2010, a review of 80 elder financial exploitation cases in Utah found the state’s Medicaid program would potentially pay approximately $900,000 to cover the cost of care for vulnerable adults who had suffered substantial losses due to financial exploitation.

Thanks to CS/HB 1059, effective July 1, 2018 we now have two new statutory tools in the fight against this kind of exploitation. The legislation created new F.S. 825.1035 (which creates a new cause of action authorizing immediate ex parte injunctions freezing contested assets in these cases), and also created new F.S. 825.1036 (which creates a new set of penalties, both civil and criminal, for perpetrators violating these injunctions).

Here’s how the Legislative Staff Analysis describes the new cause of action for immediate injunctive relief found in F.S. 825.1035:

CS/HB 1059 creates a cause of action for an injunction for protection against the exploitation of a vulnerable adult. The bill defines the term “vulnerable adult” to have the same meaning as provided in the “Adult Protective Services Act” (APSA), and defines the term “exploitation” to mean the same as it does under s. 825.103, F.S. The cause of action does not require that a party be represented by an attorney, nor is a party prohibited from filing an action if another cause of action is currently pending between the parties. The bill provides that a petition can be filed by any of the following individuals:

  • A vulnerable adult in imminent danger of being exploited or their guardian;
  • A person or organization acting on behalf of the vulnerable adult with the consent of that person or that person’s guardian; or
  • A person who simultaneously files a petition for determination of incapacity and appointment of an emergency temporary guardian.

A person’s right to petition for an injunction is not affected by the fact that the person has left a residence or household to avoid exploitation of the vulnerable adult. Moreover, the petition may be filed in the circuit court in which the vulnerable adult resides.

In the event a guardianship proceeding is pending at the time of filing, then the petition must be filed in that proceeding. There is no minimum requirement of residency to petition, nor is there a requirement for actual exploitation to have occurred for an injunction to be issued.

And here’s how the Legislative Staff Analysis describes the new enforcement tools found in F.S. 825.1036:

The bill amends s. 741.31, F.S., and s. 901.15, F.S., making a violation of an injunction a first degree misdemeanor (or a third degree felony if the individual has two or more prior convictions for the violation of an injunction) and allows law enforcement to arrest an individual, without a warrant, when there is probable cause to believe the injunction has been violated. A first degree misdemeanor is punishable by up to a year in prison while a third degree felony is punishable by up to 5 years in prison and a $5,000 fine.

The bill authorizes the court to enforce a violation of an injunction through a civil or criminal contempt proceeding, or the state attorney may prosecute it as a criminal violation under s. 741.31, F.S. The court may enforce the respondent’s compliance with the injunction through appropriate civil and criminal remedies, including, a monetary assessment or a fine. The clerk of the court is required to collect and receive such assessment or fine. On a monthly basis, the clerk is directed to transfer the moneys collected to the Department of Revenue for deposit in the Domestic Violence Trust Fund.

If the respondent is arrested by a law enforcement officer under s. 901.15(6), F.S., or for a violation of s. 741.31, F.S., the respondent must be held in custody until brought before the court to enforce the injunction for protection against the exploitation of a vulnerable adult. Pending a hearing, the court may require respondent to post bail in accordance with ch. 903, F.S., and the applicable rules of criminal procedure.

This legislation is a big deal, and for reform advocates like Gainsville elder-law attorney and litigator Shannon Miller, it’s been a long time in coming. Shannon generously shared her personal experiences and perspective as a veteran practitioner litigating these kinds of cases in a 2016 interview for this blog, and now that we have this new legislation she’s published an Exploitation Injunction Handbook July 2018 (including sample forms and commentary) that’s a must read for any practitioner faced with one of these cases.

[2] Guardianship reform and oversight: Clerk of Courts take on greater role as watchdogs

How our courts oversee and administer guardianship proceedings have long been the target of intense criticism and legislative reform efforts (see here, here). All of this has lead to greater oversight by non-judicial actors, including circuit court clerks. Clerks of the circuit courts serve as the custodian of guardianship files. In that capacity they are responsible for reviewing guardianship reports to ensure that guardians are correctly performing their responsibilities and, if appropriate, conduct investigations.

For example, in a story published by the Palm Beach Post entitled Report: Savitt involved with ‘corruption, collusion of judges’, it was reported that the inspector general’s office for the circuit court clerk for Palm Beach County conducted an investigation into allegations of wrongdoing involving guardianship proceedings in that county that resulted in a damning 25-page report. Here’s an excerpt from the Palm Beach Post story:

“Corruption and collusion of judges and lawyers in Delray Beach for financial gain” centered around dubious professional guardian Elizabeth “Betsy” Savitt and her husband, former Circuit Judge Martin Colin, according to a report never before made public by Palm Beach County’s guardianship watchdog.

Once again, a major institution in what is known nationwide as “Corruption County” stands accused of betraying the public trust.

Colin signed orders in Savitt’s cases. The couple’s friend — Circuit Judge David French — oversaw the majority of her cases. And lawyers appointed by Colin steered lucrative guardianships to Savitt while asking Colin to approve tens of thousands of dollars in fees in other cases before him. Other judges approved questionable fees or appointed Savitt under “unusual” circumstances.

These allegations are detailed in a 25-page report by the Inspector General of the Clerk & Comptroller’s Office and obtained by The Palm Beach Post on Friday. The State Attorney’s Office investigated but found no evidence of a crime.

CS/HB 1187 expands on the already existing oversight role played by circuit court clerks when reviewing guardianship reports. Here’s a summary of the legislation provided in the Legislative Staff Analysis:

The Office of Public and Professional Guardians (OPPG) oversees, investigates, and disciplines all public and professional guardians. Complaints against a guardian must be filed with OPPG.

A guardian must file with the circuit court an initial guardianship report, an annual guardianship report, and anannual accounting of the ward’s property. In addition to the duty to serve as the custodian of the guardianship files, the clerk of the court reviews each initial and annual guardianship report to ensure that it contains required information about the ward. If the clerk believes further review is appropriate, the clerk may request and review records and documents that reasonably impact guardianship assets. A guardian or OPPG may disclose confidential information about a ward in limited circumstances.

CS/HB 1187 identifies specific actions that clerks may take when reviewing guardianship reports. The bill permits the clerk to conduct audits and may cause the initial and annual guardianship reports to be audited, when the clerk has reason to believe further review is appropriate. If the clerk identifies an act of wrongdoing on the part of the guardian based on the audit, the bill prohibits the guardian from being paid or reimbursedusing the ward’s assets for any fees incurred in responding to the audit. The bill requires the clerk to advise thecourt of the results of such audits.

The bill allows the clerk to disclose confidential information to the Department of Children and Families or lawenforcement agencies “for other purposes,” as provided by a court order. The bill authorizes a guardian toprovide the confidential information to the clerk or an investigator with OPPG for investigations that arise under a review of records and documents involving assets, the beginning inventory balance, and fees charged to the guardianship.

The bill allows a designee of OPPG to receive records and financial audits to investigate complaints against guardians filed with the OPPG.