By James W. Mallonee
Two years ago a public outcry was finally heard by the Florida legislature to bring the guardianship laws in line with greater checks and balances for those individuals accused of being incapacitated. Although there is still room for improvements, the recent changes are steps in the right direction. This article will discuss some of the major changes and its effect on families and those persons who are allegedly accused of being incapacitated.
To thwart possible individuals whose past backgrounds are not sterling, the law was changed to require background checks of each non-professional person seeking to serve as a guardian. The background check consists of a criminal background check and financial stability. The objective of this change is to scrutinize those individuals who possess a felony or whose financial stability is poor. The State is trying to protect the incapacitated person from exploitation and abuse from those individuals who have backgrounds exhibiting such behavior. However, the court continues to have the ability to not require such checks when there is good cause (e.g. the parent of a child).
The Clerk of Court is also given additional authority that did not exist prior to 2014. The Clerk is now capable reviewing the reports (annual or initial) provided by a guardian. If the supplied report is questionable, the Clerk has the right to seek and demand additional information concerning those facts that are on an existing report. The objective here is to prevent financial abuses and lack of care provided to an incapacitated person that might go undetected. This ability and protection did not exist prior to 2014.
In 2015, the legislature changed the statute involving suspension of Durable Powers of Attorney upon the filing of a Petition to Determine Incapacity. Prior to 2015, once a Petition for Incapacity was filed, a person’s Durable Power of Attorney was suspended. When this happened the authority and power given to the agent appointed by the alleged incapacitated person (“AIP”) was suddenly stopped. Thus, the ability to continue to manage the property of the AIP terminated. Although this seems like the right thing to do, what was happening is that bills, mortgages and utilities were not getting paid. Catastrophic consequences would occur as the lag time between the petitioning and determination of incapacity was delayed. The legislature changed this statute to allow the Durable Power of Attorney to remain operational provided the named agents in the Power of Attorney were related to the AIP. Once a determination of incapacity was obtained, then the Power of Attorney might be suspended.
The objective of not suspending a Durable Power of Attorney was to give the AIP some remaining authority of self-determination and continuing to protect the AIP’s property. After all, the AIP selected the agent in their Power of Attorney and that decision should be respected. Of course if it can be shown that the agent is using the Power of Attorney to exploit the AIP’s property, then the court has the ability to suspend it regardless of the agent’s relationship to the AIP. If the Power of Attorney is suspended, due process gives the agent who has lost their authority the ability to respond and defend their right to serve as the agent.
In this author’s opinion, the biggest and most substantial change has been the ability of the person deemed incapacitated to have his or her rights restored. Its called “suggestion of capacity.” Prior to 2015, the burden of proof that capacity had been restored was the “clear and convincing” threshold. That threshold standard has been dropped to a “preponderance of the evidence.” Additionally, the court must find specific findings of fact if the capacity of a person is not restored thus increasing the burden on those persons seeking to continue the guardianship. Moreover, a guardian has an affirmative duty to notify the court if there is a belief the incapacitated person has regained full or partial capacity.
Another change that was made in 2015, is the elimination of preventing family visits with an incapacitated person. The law now gives interested persons the right to seek judicial review of those situations where family members or friends are denied visitation arbitrarily and unilaterally by a guardian. The objective is to prevent isolation and allow family members to monitor the wellbeing of an incapacitated person. Naturally, if a family member poses a threat to the incapacitated person, the guardian has the right and duty to protect the Ward from such threats or abuse.
In 2016, the legislature created the Office of Public and Professional Guardians with control over regulatory and disciplinary powers over professional guardians. This includes greater requirements to qualify as a professional guardian before they are allowed to begin serving in such roles. In Sarasota County, the court has also established a monitor with the authority to act on calls from family or an incapacitated person who claims that their rights have been abused or there is a suspicion of exploitation by a guardian. Although the monitoring position established by Sarasota County remains in its infancy, it is a welcome relief to provide protection to those persons who may have been forgotten or exploited financially.
The above information are those major changes made over the past two years. It is, however, not exhaustive with more changes to come over the next few years. In this author’s “opinion” those changes will likely involve examining committee visits and greater rights given to the incapacitated person involving family and friend visits along with reporting rights involving abuses by guardians.
If you believe that your loved one is being abused by a guardian or is about to be prosecuted under a guardianship proceeding, contact the attorney of your choice and get a full understanding of what to expect and how to proceed to protect them or yourself.
James W. Mallonee (Jim Mallonee) is a graduate with a B.A. degree from the University of South Florida and a Master of Science degree from Rollins College in Winter Park, Florida. He obtained his Juris Doctorate from the University of the Pacific, McGeorge School of Law in Sacramento, California. Prior to returning to Florida to practice law, Mr. Mallonee was employed by Intel Corporation for 22 years in such locations as New Jersey, Florida and California.
In addition to being a member of the Florida Bar since 2003, Mr. Mallonee serves on the Charlotte Community Foundation Committee for asset allocation and teaches Business Law at State College of Florida. Mr. Mallonee is also on the Board of Directors for the Military Heritage Museum located in Charlotte County, Florida.
His firm practices law in the following areas: Probate, Wills & Trusts, Guardianships, and Litigation in the areas of Real Estate, Guardianships and Estates. The firm has two locations in Venice and Port Charlotte, Florida.
James W. Mallonee, P.A.
946 Tamiami Trail, #206
Port Charlotte, FL 33953
Facsimile (941) 206-2224
871 Venetia Bay Blvd., #225
Venice, FL 34285