The Shifting Landscape of Guardianship Law: Three Consecutive Years of Changes
(Published in The Florida Bar Journal, September 2016)
Members of The Florida Bar Real Property, Probate and Trust Law Section’s (RPPTL) Guardianship, Power of Attorney and Advance Directives Committee are keenly aware that there have been major changes to Florida’s guardianship laws in the last several years. The political climate of the past few years has been decidedly against guardianships and, in particular, professional guardians, due to perceived abuses by them. The current political climate is due in part to hearings held before the Florida Legislature during the 2014 session in which organized members of the public testified about the horrors of guardianships. While some of the horror stories came from disgruntled family members unhappy with the results of their particular guardianship litigation, others made legitimate points regarding the need to improve the system.
As a result of these hearings and lobbying efforts, the Florida Legislature sprang into action and made substantial changes to F.S. Ch. 744 (also known as the Florida Guardianship Law or the Guardianship Code) in 2014, 2015, and 2016. The triennial reshaping of Florida’s Guardianship Code is something every practitioner in this area should be aware. This article briefly touches on some of the major changes during that period.
On June 13, 2014, Gov. Rick Scott signed House Bill 635 into law. H.B. 635 revises Florida’s guardianship statutes to provide increased protection for wards in guardianship proceedings by making the screening process for proposed guardians more stringent and by providing stricter scrutiny of a guardian’s control over a ward’s assets.
Prior to the enactment of H.B. 635, under F.S. §744.3135, the court had discretion over whether to require nonprofessional guardians to submit to a credit history investigation and level-two background screening. H.B. 635 amends F.S. §744.3135(1) to require that guardians, excluding corporate guardians, submit to these background checks. The background check may be waived upon petition of an interested person or upon the court’s own motion.1
In continuing the theme to have better oversight over guardians, H.B. 635 amends F.S. §§943.0585 and 943.059, to require individuals petitioning the court for appointment as guardian to disclose criminal records that were previously expunged or sealed. This heightened scrutiny enables the court to obtain more information on a would-be guardian’s application to determine the proposed guardian’s fitness for appointment.
H.B. 635 also provides significant additional safeguards and oversight for guardians following appointment. Prior to H.B. 635, the clerk’s office lacked authority to conduct in-depth reviews of guardianship reports and the ability to obtain certain documentation necessary to fully review guardianship cases. With the amendments in H.B. 635, pushed in part by the clerks, the clerk’s office now has the authority and duty to conduct more in-depth reviews of guardianship assets when they believe further review is appropriate.2
H.B. 635 also significantly expands the scope of the clerk’s authority to obtain discovery in guardianship cases. The clerk may now request and review documents and records that reasonably impact guardianship assets, which allows the clerk to more closely scrutinize guardianship reports.3 If, upon the clerk’s request for additional documents, the guardian fails to provide the documents, the clerk may request that the court issue an order to show cause to the guardian.4 Additionally, the clerk is now empowered to issue subpoenas under a procedure similar to Fla. R. Civ. P. 1.351.5 These powers were intensely negotiated between the various stakeholders prior to the introduction of H.B. 635 by the legislature, and the result was a compromise. There were concerns that the clerk’s new powers to issue subpoenas created conflicts by making clerks parties to guardianship proceedings. H.B. 635 also provides additional penalties for guardians who fail to comply with the auditing process, including removal.6
Almost one year after H.B. 635 was enacted, Gov. Scott signed H.B. 5 into law. H.B. 5 amends or adds at least 19 statutes impacting guardianships, including providing additional protections for wards in guardianship proceedings and additional checks on the powers of guardians. The political climate that resulted in H.B. 635 was in full swing during the 2015 legislative session resulting in H.B. 5.
Prior to the enactment of H.B. 5, once a petition to determine incapacity was filed, any power of attorney executed by an alleged incapacitated person (AIP) was automatically suspended during the pendency of the incapacity proceeding.7 The reason for this automatic suspension was to halt the ability of an agent to victimize the principal/AIP.8 The automatic suspension of authority became a tool used by interested parties to prohibit agents from taking further action on behalf of the principal/AIP, and it was argued this led to abuses. The automatic suspension had the potential of thwarting a principal’s wishes, that is, the principal/AIP’s voluntary choice of an agent prior to any incapacity to act on his/her behalf in the event of the principal’s subsequent incapacity. To that end, there was a push to limit the automatic suspension of a power of attorney in order to promote self-determination and to limit the scope of guardianship proceedings.
The issue concerned striking a balance between the competing principles of upholding the AIP’s prior known desires versus allowing interested parties acting in good faith the ability to stop the actions of agents who may be abusing their authority. The resulting compromise in H.B. 5 amends the automatic suspension procedure so that, while the automatic suspension still applies to powers of attorney in general, the new law provides an exception for certain close family members, including the principal’s parent, spouse, child, or grandchild, whose appointments under powers of attorney will not be automatically suspended upon the filing of a petition to determine incapacity.9 To address those close family members’ powers of attorney, the legislature established a mechanism under the newly created F.S. §744.3203 for a petitioner to file a verified motion to suspend those powers of attorney. When the verified motion is filed, the power of attorney is suspended.10 The agent is then provided an opportunity to respond, and, if the agent files a response to the verified motion, an expedited hearing is required to be set by the court.11 Notice must be given to all interested persons, the AIP, and the AIP’s attorney unless an emergency arises and the agent’s response sets forth the nature of the emergency, the property or matter involved, and the power to be exercised by the agent.12 Following the hearing, the court’s order on the verified motion must set forth what powers, if any, the agent is permitted to exercise pending the outcome of the petition to determine incapacity.13
Substantial changes in the emergency temporary guardian (ETG) appointment process were also implemented to address potential due process problems. Pursuant to F.S. §744.3031(1), an ETG can be appointed following the filing of a petition for determination of incapacity but prior to the adjudication of incapacity if the court specifically finds that there appears to be imminent danger to the AIP or the AIP’s assets. A source of constant tension in appointments of ETGs has been the need to balance the due process rights of the AIP with the ability of interested persons to protect the AIP from danger, abuse, or fraud. H.B. 5 adds F.S. §744.3031(2), which explicitly states that notice of the filing of the petition for appointment of an ETG and the hearing must be served on the AIP and his or her attorney at least 24 hours before the hearing is conducted. However, because petitions for ETGs are often used to combat abuse and fraud committed against the AIP, the statute carves out an exception where a petitioner can avoid the notice provision if he or she can demonstrate that substantial harm to the AIP would occur if the 24-hour notice is given.14 This compromise affords due process to the AIP but is also flexible enough to allow the notice provision to be bypassed when providing notice will alert a perpetrator who, for instance, may abscond with assets after being notified of the petition for appointment of ETG.
Another area of concern to some stakeholders, including families of the AIP, was with the guardianship appointment process. To address perceived flaws in that process, newly adopted F.S. §744.312(3)(d) requires the court to consider the wishes of the ward’s next of kin when the ward is unable to express a preference as to who should be guardian.
H.B. 5 also contains specific changes in the appointment process directed at professional guardians based upon the belief by some that they are the most prolific abusers of the system. Accordingly, newly adopted F.S. §744.312(4)(a)-(b) limits when and how professional guardians are appointed, including a major change that appears to implement a rotation system for the appointment of professional guardians.15 During the negotiations and compromise over H.B. 5, an exception to the rotation system was created for situations when the court makes specific findings of fact as to why a specific professional guardian was selected for a particular case.16 This allows the court to have discretion in selecting specially skilled professional guardians when needed.
In addition to the limitations imposed on professional guardians by the rotation system, F.S. §744.312(4)(b) also prohibits a professional guardian from serving as permanent guardian if he or she served as the ward’s ETG, except when the ward or a next of kin requests that the professional guardian be appointed as permanent guardian. As such, the new law limits the appointment of professional guardians by mandating that serving as ETG does not endow the ETG with any preference in appointment as permanent guardian.17 This change was made to address perceived problems when professional guardians are appointed as ETG based on an emergency (while the court sorts out the facts and legal issues) and then stays on permanently without the family members’ meaningful ability to replace them. Again, recognizing that in certain situations a professional guardian with special skills may be desired, the legislature adopted language allowing the court to appoint the ETG as the permanent guardian if the professional guardian’s specific skill or prior experience is needed.18
To address general abuses by guardians, H.B. 5 added F.S. §744.359 to specifically prohibit guardians from abusing, neglecting, or exploiting a ward. The new law also imposes a requirement to report abuse, neglect, or exploitation by the guardian to the Department of Children and Families’ central abuse hotline (however, there is no penalty for failure to do so).19
To limit the duration of guardianships, the legislature amended F.S. §744.464(3) to make it easier for a ward to have capacity restored by establishing a “preponderance of the evidence” burden of proof as the standard for restoration, a lower burden than the heavier “clear and convincing evidence” burden of proof required for adjudication of incapacity.20 In addition, the statute now requires the court to make specific findings of facts to justify their decisions.21 Also, to ensure that wards have their suggestions of capacity heard as soon as reasonably possible, the trial court is now required to give “priority” to any suggestion of capacity that is filed and to “advance the cause on the calendar.”22
Another significant change in H.B. 5 is the revision of F.S. §744.361 aimed at increasing protection for the ward by adding duties and responsibilities for a guardian. F.S. §744.361(13) details how the guardian of the person should consider the needs and abilities of their ward, including implementing the least restrictive measures when possible, considering the ward’s expressed desires, and allowing the ward to maintain contact with family and friends unless the guardian believes that such contact may cause harm to the ward. The guardian now also has an affirmative obligation to notify the court if the guardian believes the ward has regained full or partial capacity.23 Additionally, F.S. §744.361(1) now explicitly states that a guardian is a fiduciary and §744.361(3)-(4) directs guardians to act in good faith and not contrary to the ward’s bests interests under the circumstances.
H.B. 5 also allows easier access to the courts by revising §744.3715 to add additional grounds for an interested person to petition for judicial review. In addition to the grounds previously found in §744.3715, an interested person can now seek judicial review for two additional reasons: 1) those cases in which the guardian is acting in a manner contrary to their stated duties in §744.361; or 2) those cases in which the guardian is denying visitation between the ward and his or her relatives in violation of Florida law. The expansion of an interested persons’ ability to seek judicial intervention helps protect the ward from a guardian’s abuse of power and also prevents the guardian from limiting access to the ward arbitrarily or without good cause — an oft-repeated claim by disgruntled family members.
H.B. 5 includes changes that allow indigent wards to have the office of criminal conflict and civil regional counsel serve as court monitors or emergency court monitors.24 While this puts additional burdens on an arguably overworked and underfunded office, this new change allows the court the flexibility to appoint monitors to investigate issues that may be of concern to it without the guardianship incurring additional expenses.
H.B. 5 also attempts to make the Guardianship Code more consistent with Florida’s Probate and Trust codes in situations involving fee disputes. Prior to the enactment of H.B. 5, Florida law required that claims for attorneys’ and guardians’ fees be supported by the testimony of an expert witness.25 Prior to the enactment of F.S. §§733.6175(4) and 736.0206(5), this was the law in probate and trust proceedings as well. Following the statutory changes in H.B. 5, guardianship fee proceedings no longer require the testimony of an expert witness.26
H.B. 5 also allows fees for a guardian, a guardian’s attorney, a court-appointed attorney, or an attorney entitled to be paid from the guardianship assets, which are incurred as a result of a proceeding initiated to review their fees, to be paid from the assets of the guardianship estate unless those fees and costs incurred are substantially unreasonable.27 Prior to H.B. 5, there was some confusion regarding whether “fees on fees” was available for these individuals.
H.B. 5 also addressed confidentiality in guardianship proceedings. Incapacity proceedings often involve highly sensitive information regarding the mental health of an AIP or ward and are thus usually confidential and sealed.28 However, once there has been a determination of incapacity and a guardianship has been established, pleadings in the guardianship case are generally available to the public with some exceptions, including certain reports filed in the guardianship case such as accountings and annual plans.29 Because settlements involving a ward or minor’s claims often involve highly sensitive information relating to the health or finances of the ward or minor and because settlements often require court approval, the legislature amended F.S.§744.3701 in H.B. 7, which became effective July 1, 2015, to expand the class of records that are confidential and exempt from Florida’s public records law. These records include, but are not limited to, petitions for approval of a settlement on behalf of a ward or minor, reports of a guardian ad litem relating to a pending settlement, and orders approving a settlement on behalf of a ward or minor.30 H.B. 5 incorporates the changes from H.B. 7 relating to confidentiality of claims of minors with the addition of F.S. §744.3025(3).
Since new types of documents were made exempt from public record, additional classes of people who are allowed to review these documents without prior court approval were also added, including the guardian ad litem with regard to the settlement of a claim, the minor if he or she is at least 14 years of age, and the attorney representing the minor with regard to the minor’s claim.31 This ensures that, while this information may not be available to the general public, it is still available to those who have an interest in the proceeding.
In March of this year, Gov. Scott signed S.B. 232 into law. S.B. 232, along with H.B. 635 in 2014 and H.B. 5 in 2015, was the third major guardianship bill within the last three years. S.B. 232 is significant because it creates the Office of Public and Professional Guardians (OPPG) and endows the OPPG with major regulatory and disciplinary powers over professional guardians.
Prior to the enactment of S.B. 232, there was a simple registration process for professional guardians but not much in terms of oversight, regulation, or discipline. S.B. 232 provides for much more stringent regulatory oversight of professional guardians by empowering and requiring the OPPG to create standards for guardians, to develop curriculum to educate guardians, to regulate them, and to discipline professional guardians.32 With expansive new language, the newly enacted F.S. §744.20041 allows professional guardians to be disciplined for, among other things: 1) making misleading representations related to the practice of guardianship; 2) violating rules adopted by the OPPG; 3) being convicted of certain criminal violations relating to the guardianship practice; 4) failing to comply with educational requirements; 5) failing to perform their legal obligations as professional guardians; and 6) using their guardian position for financial gains other than as to their fees for acting as professional guardians. These specific prohibitions greatly expand the class of acts that can subject a professional guardian to discipline.
While S.B. 232 gives the OPPG the authority to discipline professional guardians, it also affords them procedural due process.33 These due process considerations include written explanations to the professional guardian regarding the process and how and when the professional guardian may participate in the disciplinary process.34
It will be interesting to see what regulations and procedures are developed by the OPPG in addition to what the legislature has already required via S.B. 232.
While the legislative changes adopted during the last three years have received mixed reviews, there were many other far-reaching, draconian changes that were proposed and rejected by the legislature. Given the current political climate, it is no sure bet that the legislature is done with making substantial changes to guardianship law. The RPPTL Section, among other stakeholders, has been vigilant and will continue to work with the legislature to ensure to the extent possible that changes are appropriate, constitutional, fair, and strike a proper balance between protection of those who lack mental capacity and respect for wards and their family members’ rights. In fact, the RPPTL Section’s Ad Hoc Guardianship Law Revision Committee, which was created in 2013, anticipates proposing wholesale revisions to F.S. Ch. 744 in 2016 or 2017. This proposed overhaul of F.S. Ch. 744 will bring yet another set of tectonic changes to guardianship law in Florida if adopted by the legislature.
Our guardianship system works, but it (we) can do better. While no system is perfect, thousands of individuals get the help they need every year under our laws. Having stated that, any abuse in the system is too much abuse in the system. Those who practice in the area must work with the understanding that they are under a microscope, and as such, should avoid not only impropriety but the appearance of impropriety. We who labor in this system must never forget that caring for the wards is paramount above all other concerns. This is especially so for the lawyers in the system. The reality is that all other players in the system are heavily reliant on their counsel, and as such, lawyers must be the gatekeepers for what is fair and just. But the most important lawyers in the system are those lawyers who wear the robe. Ultimately, judges are the referees and arbiters of what happens under their watch because guardianships are creatures of the court, and guardianship proceedings are usually decided by a judge — not a jury.