In my post last month I told you about the flaws in Florida's elder guardianship system that have been exposed in recent investigative reports. Most court-appointed guardians of incapacitated older people try to do the right thing, but as the reports reveal, there are clearly some bad apples in the bunch. Structural problems and weak oversight in the guardianship system make it too easy for those bad apples to mismanage a ward's funds or engage in other kinds of elder abuse.
Any competent adult may petition the court to have a guardian appointed for an allegedly incapacitated person. Because petitions are frequently filed on an emergency basis, the process can move very swiftly, and a judge may appoint an emergency guardian even before a three-person panel has had the opportunity to examine the person and render its findings. Once stripped of the right to manage his/her own finances, health care, to decide where and how to live and who to associate with, it may be nearly impossible for the ward to have those rights restored.
In an effort to curtail abuses, Florida Governor Rick Scott recently signed Florida HB5. While critics say the law does not go far enough, it's at least a start. The law goes into effect on July 1, 2015. Here, briefly, are some of its major provisions:
- Provides specific criminal penalties for abuse or exploitation of a ward.
- Requires that an allegedly incapacitated person and his/her attorney receive written notice no less than 24 hours prior to the hearing to determine the person's capacity.
- Medical professionals called on to examine an elderly person's competence will be paid for their time - even if the person is found competent and the petition for guardianship is dismissed.
- If the person is found to be incapacitated, the court must specify precisely which rights the individual is not competent to exercise that are being vested in the guardian.
- Until now, the authority of the person's agent under his/her durable power of attorney has been automatically suspended once the process to determine the person's incapacity begins. Under the new law, if the agent is the spouse, child, parent or grandchild of the allegedly incapacitated person, the agent's authority will continue unless one or more of the following conditions are met: (1) The person seeking guardianship provides evidence that the agent is abusing his/her power; (2) the agent's actions conflict with the person's known desires; (3) assets are being mismanaged; or (4) the power of attorney document is found to be legally invalid.
- Similarly, if the allegedly incapacitated person has an advance health care directive, the court must indicate which powers will remain with the agent, and which will be given to the appointed guardian. The court must provide factual data to back up its decision.