Contact Us Online

Social Media Karp Law Blog Twitter Facebook

New FL law seeks to curb elder guardianship abuse

6-17-2015 - Recent media investigations have revealed an epidemic of elder exploitation and elder abuse in Florida's elder guardianship system. Lack of transparency, poor oversight and other structural flaws can enable court-appointed guardians to slip below the radar even as they misappropriate a ward's funds or engage in other forms of abuse.

Any competent adult may file a petition to determine if an individual is incapacitated. Petitions are filed on an emergency basis, with the process moving so quickly that a judge may appoint an emergency guardian even before the required three-person panel has examined the allegedly incapacitated person and delivered its findings. The person who has been deemed incapacitated may lose a variety of rights, including the right to manage his/her own finances and health care, and determine where and how to live and whom to associate with. Once a person has lost those rights, they can be nearly impossible to restore.

A new Florida law, Florida HB5, signed into law by Governor Rick Scott on June 10, seeks to remedy these problems. The law's detractors say it does not go far enough to curb elder guardianship abuse. Notwithstanding, it is a good first step. The law goes into effect on July 1, 2015. Some of its major provisions:

  • Provides specific criminal penalties for abuse or exploitation of a ward.

  • Requires that the allegedly incapacitated person and attorney receive written notice no less than 24 hours prior to the hearing to determine the person's capacity.

  • Medical professionals who are called on to examine an elderly person's competence will be paid for their time - even if the person is found competent and the petition for guardianship is dismissed.

  • If the person is found to be incapacitated, the court must specify precisely which rights the individual is not competent to exercise and are being vested in the guardian.

  • If there is a dispute over who should be appointed guardian, the courts are required to give more consideration to the person's next of kin before appointing a professional guardian. 

  • If a professional guardian is appointed, he/she can be made the permanent guardian only if requested by the ward's next of kin, unless there are other special circumstances or the guardian has certain skills that make that person the best choice.

  • Until now, the authority of the person's agent under his/her durable power of attorney has been automatically suspended once the process to determine the person's incapacity begins. Under the new law, if the agent is a spouse, child, parent or grandchild of the allegedly incapacitated person, the agent's authority will continue unless there is evidence provided by the person seeking guardianship that the agent is abusing his/her power; or that the agent's actions conflict with the known desires of the person; or assets are being mismanaged; or the power of attorney document is found to be legally invalid.

  • Similarly, if the allegedly incapacitated person has an advance health care directive, the court must indicate which powers remain with the agent and which are given to the appointed guardian, and the court must provide factual data to back up its decision.

You can read the text of the new law here.

Obviously, it is better to avoid becoming the subject of a court-ordered guardianship to begin with, rather than fight against the guardianship after the fact. Advance planning is key and may include steps such as establishing a health care power of attorney, durable power of attorney, designation of a pre-need guardian, appointment of successor trustees in a revocable trust, and other steps. The Karp Law Firm attorneys can assist you with plans to keep court-ordered guardianship out of your future. Contact us

Back to Elder Law Legal Updates