Proposed Reform of Florida’s Guardianship System
As people move into the later years of their life, it is not uncommon for them to experience a decline in their mental or physical faculties that reduces their ability to make competent life decisions. Although it may be hard to admit a family member is displaying signs of mental or physical decline, especially if it is a parent, there comes a point when guardianship may be next step to ensure the person’s needs are adequately addressed. Guardianship is a legal designation in which a court authorizes someone to act as a guardian for a person no longer capable of caring for him/herself. The guardian is authorized to make decisions related to a person’s personal and/or financial affairs, and the person requiring a guardian becomes the ward of the state. People who typically need guardians are the elderly, the disabled and children. Florida recently started to propose reforms to its guardianship system, as discussed in a Jackson free press article, aiming to provide additional oversight in order to prevent abuse and exploitation of the wards. An overview of the proposed changes to this area of law will appear below.
Public Guardians
The main thrust of the proposed legislation is to create the Office of Public and Professional Guardians, which would establish a program of public guardians responsible for administering the affairs of incapacitated persons unable to obtain private guardians. Private guardians may not be available due to a lack of willing family members and/or the financial ability to hire a private guardian. However, before any guardianship issue is decided, the new law would require courts to consider the possibility of less restrictive alternatives, like a guardian advocate, prior to finding someone incapacitated due to how much autonomy and legal authority is lost in the appointment of a guardian. Public guardians would only be used if a less restrictive alternative is not appropriate.
Oversight and Investigation
This new office would also be in charge of establishing the standards of practice for public and professional guardians, as well as the education, registration and certification of these guardians. Most importantly, the office would be tasked with developing a monitoring tool to ensure compliance with practice standards, and establishing disciplinary proceedings for violations of these standards.
The office would be obligated to investigate every complaint within 10 days of receipt. The completion of the initial investigation must occur within 60 days after the complaint is received, and any findings are given to the guardian and the person who filed the complaint. If it is determined that discipline is warranted after an investigation, the office will have several options to punish the guardian, including: additional education on standards of practice, additional monitoring, payment of restitution if any of the ward’s money was improperly used and suspension or revocation of the guardian’s license. The proposed law also lists an extensive list of acts that would justify discipline of the guardian, some of which include:
- stating anything false, misleading or deceptive about the practice of guardianship;
- a conviction for a crime related to the practice of guardianship;
- filing a false complaint against another guardian;
- filing a false report or negligently failing to file a report required under state and federal law in the person’s capacity as guardian;
- using the position of guardian for financial gain; and
- engaging or attempting to engage the ward, an immediate family or ward’s representative in a sexual relationship.
Talk to a Lawyer
If you believe a close friend or family member needs a guardian to take over this person’s personal and/or financial affairs, talk to an attorney first to determine if there are less restrictive options available to help this person. An attorney can also tell you about the guardian’s role and the extent of the guardian’s legal authority. The Tampa law firm of Bubley & Bubley marries the complementary practices of family law, estate planning and business law to offer clients full service legal representation – all legal areas likely to be relevant in a guardianship case. Contact us to schedule your confidential consultation.
