Netflix’s popular new movie, I Care a Lot, is far-fetched in a lot of ways, but it does highlight some real weaknesses in the guardianship system in certain states in our country that make it possible for an unscrupulous guardian to take control of an elderly person’s life and bleed their resources dry. Fortunately, Florida is not one of those states because the attorneys of the Elder Law Section of the Florida Bar have worked tirelessly with the State’s legislature to ensure laws are in place to protect our most vulnerable population.
A guardian is someone appointed by a court to make decisions on behalf of an incapacitated individual (“ward”). The guardianship process usually starts when a family member or social worker notifies the court that someone can’t take care of him- or herself. The court often appoints a family member as guardian. However, if the family can’t agree on a guardian or there is no family to act as guardian, the court may appoint a professional guardian. Professional guardians are supposed to be neutral individuals who are hired to act in the ward’s best interest.
I Care a Lot follows a professional guardian who exploits the system to gain control of her wards’ estates. In the movie, the guardian petitions for an “emergency guardianship” without notifying the ward. This would NEVER happen in the Florida court system. In Florida, the person that is alleged to be incapacitated MUST receive notice of the filing of an emergency guardianship as well as a general guardianship case. Additionally, the alleged incapacitated person is appointed an attorney by the court. If the alleged incapacitated person cannot afford to pay the court appointed attorney’s fees, the attorney will be paid by the State. The attorney must meet with the alleged incapacitated person before any hearings take place. If the alleged incapacitated person expresses to their attorney that they do not want a guardian appointed, it is the attorney’s job to let the court know that and to be a strong advocate for the alleged incapacitated person’s wishes.
In the case that takes up most of the movie, the guardian appears on the doorstep of a very surprised Jennifer Peterson with a court order declaring Peterson incompetent (she is nothing of the sort) and forcing her to relocate to a long-term care facility. The guardian has already arranged for Jennifer’s doctor to declare Jennifer incompetent. In Florida, an alleged incapacitated person must be examined by a committee of three medical professionals (examining committee) to determine whether the person is partially, totally, or not incapacitated (incompetent). Each member of the examining committee meets with the alleged incapacitated person separately and completes an extensive review of the person’s medical records and performs specialized tests to determine the person’s ability to handle their own affairs. The attorneys involved in the case may require each member of the examining committee to appear at the hearing to provide testimony regarding their findings of incapacity.
Then, without Jennifer’s knowledge or consent, the guardian takes control of her life and finances. After Jennifer is moved to the care facility, the guardian begins the process of selling her house and belongings and taking a generous cut of the proceeds. In Florida, the laws restrict what a guardian can do without the court’s permission. If the guardian wishes to sell the home of a ward, they must file a petition with the court, notify any interested parties (such as the children of the ward), provide a copy of the sales contract along with information showing the sale is for fair market value, and show the court that the sale is in the best interest of the ward. Furthermore, guardians in Florida – both family guardians and professional guardians – must seek court approval before they can receive any compensation for acting on behalf of the ward. They must provide the court with a detailed list of each activity that they did on behalf of the ward along with the amount of time each activity took. The court reviews this list extensively and often requires the guardians to reduce the amount of hours they are requesting to be paid for or requires them to lower the hourly fee they are requesting if the court determines the fee to be unreasonable.
Unfortunately, in many states, the lack of court oversight combined with poorly trained guardians can lead to abuse. Courts often do not have the resources necessary to provide proper oversight. However, not all states are equally vulnerable to guardianship exploitation. In addition to the process and procedures in place that were mentioned above, Florida’s governor signed a law in 2019 requiring guardians to report details of payments they receive from any source, requiring guardians to seek court permission before signing “do not resuscitate orders” for wards, and restricting professional guardians from asking the court to be appointed in cases unless they are related to the alleged incapacitated person. And in a rare display of bipartisanship, Congress passed a bill in 2017 that empowers federal officials to investigate and prosecute unscrupulous guardians and conservators appointed by state courts.
Regardless of your state’s laws, the best approach is to avoid the need for guardianship and entirely by putting durable powers of attorney and health care surrogates in place ahead of time when you can choose the person you would like to make decisions for you when necessary. Even if you are not at risk of exploitation because your children or grandchildren would step in, the need for court intervention causes otherwise unnecessary expense and delay. Our office can help you establish a comprehensive estate plan that includes durable powers of attorney and health care surrogates. We also have the knowledge and expertise to help families navigate the Florida guardianship system if the need arises.