Elder Rights in Guardianship

Elder rightsThis spring, Florida lawmakers will have a chance to stem abuses in the state's little-understood adult guardianship system by taking up measures that would make it harder for guardians and attorneys to disregard the best interests of the wards they're supposed to protect. Critics say the process of stripping away an elder's rights and taking over that person's assets happens too quickly in Florida, without enough notice to family, friends or even the prospective ward. With more Americans living into their 80s, cases of age-related dementia are increasingly becoming matters for litigation. In most states, anyone can apply to the court to determine that an elder lacks the capacity to make decisions, and place that individual under guardianship.

Florida law has a list of 14 rights that an elder may surrender as a result of the guardianship process. These include the rights to marry, vote, manage finances, determine where to live and accept medical care. A recent article in The Herald Tribune, titled “Legislation aims to curb abuses in guardianship system,” reports that two of that state’s legislators are addressing the excesses possible within Florida's guardianship system.

The Florida bill includes these types of actions:

  • gives clerks of court authority to refer cases of wrongdoing for criminal prosecution;
  • allows judges to order mediation at any point in the process;
  • attempts to curb the practice of legal wrangling over attorneys' and guardians' fees; and
  • describes a guardian's duty to honor a ward's desires and file accurate reports to the court.

The bill also contains language that could help make full guardianship a last resort, rather than a common practice, stating that a judge “may only remove those rights that the court finds the person is incapable of exercising.”

The bill's most important provisions are those that create court monitors, and that limit the practice of declaring emergency temporary guardianships. Current Florida statute doesn’t call for any emergency guardianships per se—however, in reality this is how most elder wards are stripped of their rights. A petition for emergency guardianship is approved (usually within a few days) and wards are often removed from their homes before a hearing is set on the issue.

The new Florida bill would mandate that an alleged incapacitated person and his or her lawyer be given 24 hours' notice of any hearing on a petition for emergency temporary guardianship. It also removes any financial incentive for professional guardians to have themselves declared temporary guardians and then automatically become permanent.

Elder abuse can happen anywhere.  Make sure that your senior loved ones are protected and on guard for abuse. Guardianship is a drastic step, and you should make sure that you’ve discussed this with an experienced elder law attorney.  

For more information about estate planning, please visit my estate planning website.

Reference: The Herald Tribune(January 17, 2015) “Legislation aims to curb abuses in guardianship system”