CS/HB 635: The Florida Legislature Updates The Florida Guardianship Law

A “guardian” is a person appointed by the court to act on behalf of the person and/or property of an individual whom the court has determined to be incapacitated, known as a “ward.” Guardians are appointed according to statutory criteria, outlined in § 744.309, Florida Statutes (2013). The guardian of an incapacitated person may exercise only those rights that have been removed from the ward and specifically delegated to the guardian. A guardian of a ward’s property has a fiduciary obligation to protect and preserve the assets of the ward, and is required to keep the court apprised of their actions through the filing of an initial guardianship inventory and annual accountings. A guardian of a ward’s person may, among other things, consent to medical treatment on behalf of the ward and, as with a guardian of property, must file an annual guardianship plan detailing the ward’s doctor visits and treatment plans for the coming year. Persons disqualified from becoming guardians include convicted felons, incapacitated persons, or persons who have been judicially determined to have committed abuse or neglect against a child or any of the other offenses prohibited under § 435.04, Florida Statutes (2013), such as acts of sexual misconduct, abuse or exploitation of an elderly person, and even indecent exposure. Additionally, prospective guardians must submit to a high level of background screening, including a credit history report and fingerprinting.

Despite the rigorous standards controlling who can and cannot be appointed as a guardian in Florida, few procedural safeguards are actually in place to identify and prevent guardianship abuse through enforcement of those standards once a guardian has been appointed. A recent Miami New Times cover story sought to expose the problem of exploitation by guardians, based on a review of over 50,000 guardianship cases currently pending before Florida state courts, over 7,000 of which involve wards who reside in Miami-Dade County. While the Miami New Times story took a somewhat sensationalized approach by offering a handful of “horror stories” that do not necessarily represent the majority of guardianship cases in South Florida, it did bring about increased public awareness of the serious problem of guardianship abuse in Florida.

This increased public awareness likely influenced the Florida Legislature, which recently took steps to address the problem. The 2014 legislative session saw the introduction of bills proposing long-overdue changes to Section 744 of the Florida Statutes, also known as the “Florida Guardianship Law.” A bill that unanimously passed both legislative bodies makes improvements to the Florida Guardianship Law by providing for the following:

– Guardians are deemed to be “professional guardians” if they manage the property of more than three wards. Professional guardians, as well as their employees who also have a fiduciary responsibility to a ward, must submit to a criminal background check and a credit history check;

– Nonprofessional guardians must submit to a credit history and Level 2 background screening, unless waived by the court. Nonprofessional guardians may petition the court for reimbursement of the reasonable expenses of the credit history investigation and background screening;

– The clerk of the court may request and review records and documents that reasonably impact guardianship assets. The bill makes additional procedures available to the clerk to obtain documents through the use of non-party subpoenas; and
– Persons seeking appointments as guardians are added to a list of people who may not lawfully deny or fail to acknowledge arrests covered by an expunged or sealed record.

Thus, a potential guardian would be required to expressly admit to having been arrested for, charged with, and convicted of even offenses that were ultimately expunged, and such admissions, if prohibited under § 435.04, Florida Statutes, could preclude their appointment as a guardian.

If you or anyone you know is interested in obtaining information about guardianships, pursuing a guardianship for an incapacitated person, or contesting a guardianship or guardian’s appointment, the experienced attorneys at Chepenik Trushin LLP are ready, willing, and able to provide advice and assistance. Please do not hesitate to contact us for an initial consultation.