Tuesday, February 3, 2015

Guardianship bill clears panel

Editor's note: But how would this play in Illinois with a probate court stocked with Kawamoto and Solo clones?  Lucius Verenus, Schoolmaster, ProbateSharks.com

Guardianship bill clears panel

New protections could be coming for Floridians who end up under a guardian’s supervision because of illness or mental incapacitation.
The proposed law still has a long way to go, but it received unanimous support Thursday from a Florida House panel.
“This is a very emotional issue. You can hear the anguish in voices of the family members who are appearing before us,” said Rep. Kathleen Passidomo, a Naples lawyer and Republican who is crafting the legislation. “I want to take the emotion out of it and create a bill that works and that will make our guardianship process better.”
The House Civil Justice Subcommittee strongly backed Passidomo’s bill (HB 5), while a similar bill (SB 360), sponsored by Sen. Kelli Stargel, R-Lakeland, is pending in the Senate.
The legislative action follows a December series in the Herald-Tribune — “The Kindness of Strangers: Inside Elder Guardianship in Florida” — that detailed cases of people who believe they were denied due process in court and afterward.
The series highlighted the potential for conflicts of interest among judges, attorneys, guardians, health care providers and other business people who work closely within the system. Because wards’ cases are confidential, there is often little opportunity for oversight.
Sam Sugar, an Aventura physician who founded Americans Against Abusive Probate Guardianship, called the House bill “a very good step in the right direction.”
Sugar said one of the measure’s strengths is that guardians who abuse their wards could face criminal charges. He said he would like to see a stronger role for local state attorneys.
“We all understand that there are good guardians and bad guardians,” Sugar said. “But there is never any specific path toward enforcement, supervision and ultimately conviction.”
Sugar said while the current law has strong provisions, it is often ignored in the process. “Like stop signs in Miami, maybe they are just suggestions,” he said.
He also questioned why families have to rely on the overburdened Department of Children and Families to handle grievances in guardianship cases. “Nobody has to mention that DCF has its own problems,” he said.
Among the new provisions in the bill is a requirement that families receive at least a 24-hour notice before an emergency guardian is appointed — although the bill does provide for that requirement to be waived in some cases.
The bill also would prohibit the emergency guardians — in most cases — from becoming the permanent guardians. Passidomo said that provision is aimed at ending the practice of “trolling,” in which would-be guardians seek an emergency appointment that they then can convert into a permanent guardianship.
Another problem cited by advocates are “stay-away orders” that prevent family members from having any contact with the ward — based on the claim that family members could be harmful to the ward.
Alan Sayler of Pinellas Park said the stay-away orders are “one of the biggest problems” in the system and that they “isolate from the family and there’s no relief for that.”
Sayler said there needs to be more legal justification for imposing those orders on the families. “They should have to come forward and present evidence and state why they think this is harmful to the ward,” he said.
Under the bill, families would be able to petition the court for a review of visitation rights. But Sugar urged Passidomo to make the reviews mandatory if requested.
“I think this is really important to protect the families of the wards, so we can avoid these really egregious and ugly stay-away orders,” Sugar said.
The bill will require guardians to keep more accurate records about their wards. But Sugar and the other family advocates said secrecy is a big problem in the system.
“Frankly we’re all flying in the dark here,” Sugar said. “Nobody in this room can tell me how many guardianships there are in the state of Florida.”
He said while he understands the privacy provisions were aimed at protecting the wards, it also has prevented more scrutiny and research about the system.
“The issue of protecting a name when you destroy a life doesn’t make any sense to me,” Sugar said.
Passidomo said she has been meeting with a group of elder-law attorneys, advocates and others since the summer in developing the legislation. The House also held a workshop on the bill earlier this month.
She said she remains open to all the suggestions in improving the legislation as it moves through its next two committees — the Judiciary Committee and Justice Appropriations Subcommittee — and then to the House floor.
“I want this bill to be the best bill we can pass,” Passidomo said. “I may not agree with everything but I’m going to listen.”
Sugar said it is significant that the Legislature has responded with a major bill on guardianships because it “calls attention to the fact that there is a serious problem.”
“This is a great day for our cause,” he said after the meeting. “We’re looking for more supervision and more ability for our voices to be heard in court.”

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