Proposed guardianship reform proposal draws scrutiny from Real Property, Probate and Trust Law Section

Proposed guardianship reform proposal draws scrutiny from Real Property, Probate and Trust Law Section

Sen. Ileana Garcia

Advocates are praising a bipartisan guardianship reform proposal, but some experts warn it would encourage family conflict and spark more adversarial court proceedings.

Sen. Ileana Garcia, R-Miami, and Rep. Rita Harris, D-Orlando, filed SB 48/HB 887 respectively. The bills, which each face three committee hearings, have yet to be heard.

Among other things, the measures would grant family members visitation rights — absent “clear and convincing evidence” that it would be harmful to the ward.

Kat Duesterhaus, acting legislative director of Florida NOW, notes that the proposal is backed by Pinellas County Court Clerk Ken Burke, who chaired the 2021 Guardianship Improvement Task Force.

“With over 4 million elderly residents in our state, this legislation, aligned with Task Force recommendations, is a pivotal step forward,” Duesterhaus said in a statement to the Bar News.

Other provisions would require guardianships to be reviewed every three years and “enhance oversight through jury-based validity checks,” Duesterhaus said.

“Our goal is to enact changes that safeguard the dignity and rights of our most vulnerable citizens,” she said. “We implore all attorneys and stakeholders to join us in supporting these critical reforms.”

John C. Moran

But a provision that would require a court to impanel a jury to make certain determinations is just one reason the Real Property, Probate and Trust Law Section opposes SB 48 in its current form, says Chair-elect John C. Moran, a Gunster partner in West Palm Beach.

“The section is very much in favor of maintaining the regular contact between a ward and close family members and supports policies to further that objective,” Moran said. “However, there are aspects of the bill the section believes are not well founded and conflict with existing law.”

According to its website, RPPTL Position 2.o., the RPPTL section “supports legislation that provides for the continued rights of a ward to receive visitors and communicate with others when such contact would not be potentially harmful to the ward.”

But it opposes any legislation that would, among other things, allow for jury trials initiated under Chapter 744.

“Section 7 of the bill would allow the challenge of an alleged incapacitated person’s last will and testament during the guardianship administration; creating the only avenue under Florida law for such a challenge which is directly contrary to current law found in FSA § 732.518,” Moran said. “This, in turn, would encourage more guardianship proceedings as it provides personal financial incentive to petitioners to go after an inheritance.”

Moran also points to privacy concerns.

Section 10 of the bill would require an incapacitated individual’s bank statements and tax returns to be provided to “his or her cousins, parents, siblings, and every other person related by blood, regardless of their prior involvement in the ward’s life,” Moran said.

Pinellas County Clerk of Court Ken Burke

Burke, the veteran Pinellas court clerk, acknowledges that some provisions will be harder to sell than others.

“Obviously, there are things in the bill that will be very difficult to pass, the whole jury thing,” he said. “I’m supportive of this legislation because it keeps the need to review and improve guardianships alive in the Legislature.”

Reforms are urgently needed, Burke said. He points to a December 2022 Pinellas County Court Clerk Inspector General report regarding Traci Hudson.

Hudson, a former professional guardian, was accused of stealing more than $500,000 from a Pinellas senior after the man’s daughter died. She pleaded guilty to 19 felony counts of theft and exploitation.

According to the IG report, Hudson had 45 guardianship cases in Pinellas and Pasco counties with a “total initial asset value” of more than $14.1 million.

The case is emblematic of a statewide problem — too few family members to care for incapacitated seniors, and too little oversight of the guardians appointed to care for them, Burke said.

“We have two judges in Pinellas County who handle guardianships and both of them are excellent judges,” he said. “How can they possibly have oversight when they have 1,200 guardianship cases?”

Currently, there is no way to track guardianship cases in Florida and no reliable data to show how many guardians there are, how many wards they have, and how much money they control.

That should change when a state database — the Guardianship Improvement Task Force’s top recommendation — launches in April, Burke said.

“I think a lot can be done with that database in the future,” Burke said. “It’s going to take standardized forms throughout the state, and data going into the database where a judge can get some good information.”

The database is just the beginning, Burke said.

“What’s the old saying, how do you eat an elephant? One bite at a time.”