Lawmakers take ‘first step” to curb abuse by professional guardians

Kathleen Zagaros’ tale about professional guardianship is like many others. She wanted to protect her aging mother from a predatory neighbor only to find herself fighting the court-appointed guardian who was set on draining the estate.

“When the guardian came on, my mother had more than a $1 million. Three years later, she has virtually nothing,” said the Tampa woman, who eventually got the guardian replaced.

The Palm Beach Post investigated local allegations about court-appointed professional guardians in stories that ran April 3.

And the Florida Legislature this year took notice of the plight of seniors who are taken advantage of by unscrupulous court-appointed professional guardians and the attorneys who orbit around them, exacting fees.

Sen. Nancy Detert, R-Venice, called professional guardians “cockroaches” in a committee meeting. Rep. Kathleen Passidomo, R-Naples, called for criminal penalties.

In the end, a bill sponsored by Passidomo became law, while Detert’s proposal died and will have to wait until 2016.

“The best thing about Passidomo’s bill is that it gives the victims’ voices credibility — that the surreal world of guardianship abuse really does exist,” said Julie London-Ferguson of Sarasota, who has also fought the guardianship in her mother’s case and is an outspoken critic of the process.

Guardianship occurs under state law when a circuit judge finds an adult — often a senior experiencing dementia or suffering from Alzheimer’s disease — to be incapacitated. A guardian is then appointed to handle some or all of their affairs. Often this is a family member, but not always. When there is acrimony between siblings, for example, a professional guardian is appointed.

The Post found that the industry of professional guardianship is booming, swelling from 108 registered individuals in 2003 to 456. Their power can be absolute — with the ability to decide what medical care their ward will receive and whether they should be moved out of their homes. Guardians and attorneys can easily deplete estates by filing pleading after pleading.

If signed by Gov. Rick Scott, Passidomo’s bill would require notice to be given before hearings can be held on the appointment of emergency temporary guardians. It would also allow the mediation of guardianship disputes among family members and require the reporting of incidents of abuse, neglect and exploitation of wards by guardians. In an effort to prevent trolling of nursing homes by guardians, it also would prohibit an emergency temporary guardian becoming the permanent one.

Passidomo’s bill (HB 5), which also would create a process of randomly assigning guardians, appeared in jeopardy with the House’s early adjournment last week, but was able to pass after Sen. Tom Lee, R-Brandon, withdrew an amendment he had wanted to add. If he had insisted on adding the amendment, which only made an exception for an agency in his district, it would have killed the bill, as it would have required another House vote after it had adjourned.

“It just wouldn’t be very classy to bring her legislation down in light of what the House did,” he said.

“If you read the bill, you realize we are holding the guardians accountable,” Passidomo said, but she hopes this session opens up a larger discussion.

“The question you want to ask is — and we have not yet had this dialogue — should the state involve themselves in family relationships,” Passidomo said.

Detert, whose bill (SB 1226) actually was a casualty of the House calling it quits early, said the passage of the Passidomo proposal was “step one.”

Detert’s bill would have given the state Department of Elder Affairs the responsibility of certifying and overseeing professional guardians and disciplining those who abuse their trust. It also would have created a registry of professional guardians in each judicial circuit.

She said a similar bill will be the first one she files next year.

“This is kind of a new subject matter for us,” she said. “It’s an unregulated industry. Once you are stuck with a guardian, you can’t get rid of them.”

Fernando Gutierrez, director of the Pinellas County Guardianship Association, said the law that did pass will make it harder for good guardians to be appointed to hard cases. He said the law will force many out of the business and affect pro bono work done on behalf of wards who have no real estate.

“I don’t recommend guardianship. It’s really only the last choice,” he said. “But they’ve put us all in the same barrel.”

The impetus behind the bills was a grassroots group of people who say they saw professional guardians abuse their loved ones financially, emotionally and even physically.

Dr. Sam Sugar, co-founder of Americans Against Abusive Probate Guardianship, said the passing of Passidomo’s legislation was “a momentous event for the citizens of Florida who now will be a little bit less vulnerable to the greed-driven system called guardianship.”

He said the next step is to keep the heat on guardians, the lawyers who feed off their cases and the judges who turn a blind eye to abuses.

“Our phones and social media are blowing up. This is happening all over the country,” he said. “I just got off the phone with a woman in Montana.”

Jack Halpern, CEO of My Elder Advocate in New York City, runs a company that offers an alternative to professional guardians by helping seniors navigate health care and the legal system. He said the bill passed by Florida goes further than any protective measure he’s seen before.

“Those politicians who oppose this are only looking out for attorneys, who stand to lose millions in legal fees.”

Zagaros, whose says her mother, Marie Kelnhofer, was a victim of guardianship abuse, believes the bill will give families a tool to get judges to crack down on the problem.

“We can take out this new bill and say, ‘You are on notice now,’” she said. “We are not going to take this anymore. These guardians can’t hide in plain site anymore.”

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