New Florida Law hopes to reduce elder abuse by guardians

A new Florida law, Florida HB5, signed into law by Governor Rick Scott in June seeks to curb elder guardianship abuse. The bill was drafted to help solve the growing problem of elder abuse in Florida’s elder guardianship system

There are a growing number of reports of abuse of court appointed guardians in Florida misappropriating funds and other abuse by exploiting the old law’s lack of transparency, poor oversight and other structural flaws. Once a person becomes incapacitated, a petition may be filed to appoint a guardian if there is no pre-approved guardian in place. An incapacitated person can lose a variety of rights to his or her guardian, including the right to manage his or her finances and health care.

Under the current system incapacitated persons become vulnerable to abuse by their guardian. The new Florida bill seeks to prevent abuse with some of its major provisions, such as the provision that provides specific criminal penalties for abuse or exploitation of a ward.

Other safeguards included in the bill require that an allegedly incapacitated person and attorney receive written notice no less than 24 hours prior to the hearing that determines the person’s capacity. The bill also states that the medical professional who are called on to examine an elderly person’s competence will be paid for his or her time, even if the person is found competent and the petition for guardianship is dismissed. This means there will be no incentive for the medical professional to find a person to be incompetent because that person will be paid regardless.

A person who is deemed incompetent will no longer lose all of their rights. The court must now specify precisely which rights the individual is not competent to exercise are being given to a guardian. If there is a disputed over who should be appointed guardian, the courts are now ordered to give a more weighty consideration to the person’s next of kin before appointing the guardian.

If a professional guardian is appointed, he or she can be made the permanent guardian only if the incapacitated person’s nearest blood relation approves it. The bill does allow an exception when special circumstances are present or when the guardian has a special skill set that makes him or her the best guardian to meet the incapacitated person’s needs.

Under the old law, the authority of the person’s agent under the power of attorney has been automatically suspended once the process to determine the person’s incapacity begins. The new law will allow the agent’s authority to continue if the agent is a spouse, child, parent or grandchild of the allegedly incapacitated person. However the bill makes an exception if there is evidence provided by the person seeking guardianship that an abuse is happening, or the agent’s actions conflict with the known desires of the person, or assets are being mismanaged.

While this new bill is a big step forward in elder law, we recommend avoiding a court-ordered guardianship to begin with. Estate planning through a durable power of attorney and a health care power of attorney has allowed a person to name a guardian before ever becoming incapacitated.  In addition, a designation of pre need guardian can help you choose who you want to be your guardians, should the court feel one needs to be appointed down the road. This allows someone to pick who he or she trusts and knows and will follow his or her desires. For more information, contact our office today.

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