By Rebecca M. Vaccariello, Esq.
There have been a lot of changes over the past few years as the Governor signed multiple bills affecting guardianship. One of those bills, House Bill 5, was written and sponsored by our own State Representative Kathleen Passidomo. There are yet more changes on the horizon as the provisions required by the signed bills continue to be executed, and as other statutory revisions and additions are coming, as summarized herein.
Formation of OPPG
In March 2016, by passage of Senate Bill 232, the Office of Public and Professional Guardians (OPPG), as a part of the Florida Department of Elder Affairs, was created and that office is in the process of getting underway to perform its duties to provide oversight of professional guardians. The statutory changes signed into law by the Governor require rules in the areas of professional guardian registration, coursework and competency examinations, and criminal history record checks. The OPPG website has information regarding the professional guardian registration process, including newly mandated requirements, and is able to begin taking complaints by phone, mail or online. The website maintains a list of professional guardians by county, and reflects fifty-one professional guardians presently registered in Collier County.
The rulemaking process is also underway, with multiple workshop meetings already having been held in April and August 2016, which permitted public participation and comment during and after the meetings. The OPPG has posted a working draft of the rules prepared thus far that is available on its website (http://elderaffairs.state.fl.us/doea/spgo.php). The draft is heavily focused on proposed standards of practice (12 of the 16 pages of the draft rules), and also includes draft rules on disciplinary action and guidelines, along with professional guardian registration and credit investigation.
One of the newly created powers of OPPG is the ability to discipline professional guardians. While the range of penalties is not yet specifically listed in the draft rule, the considerations of the OPPG are listed as follows: “the danger to the public; the number of repetitions of offenses; the length of time since date of violation; the number of disciplinary actions taken against the guardian; the length of time the guardian has practiced; the actual damage, physical or otherwise, to the ward; the deterrent effect of the penalty imposed; any efforts for rehabilitation; and any other mitigating or aggravating circumstances in determining the appropriate disciplinary action to be imposed.”
Standards of Practice
In March 2016, the OPPG, while without any rules in place yet implementing the statutory changes, recommended and endorsed the Standards of Practice for Florida Guardianship that have been promulgated by the Florida State Guardianship Association (FSGA). FGSA is an affiliate of the National Guardianship Association (NGA) and is a non-profit organization that was formed in Florida in 1986 to increase the professionalism of guardianship. The FSGA Standards of Practice are based on the NGA Standards of Practice. There are twenty-five standards detailed in the FSGA Standards of Practice, ranging from the guardian’s relationship to the court, the ward and the ward’s family, to how to handle conflicts of interest and how to handle multiple cases and the termination of guardianships. Unsurprisingly given the recent endorsement of the FSGA standards by the OPPG, the twenty-three subparts to the OPPG proposed rule on Standards of Practice (Draft Rule 58M-2.009) address many of the same topics and substance as the FSGA Standards of Practice.
Licensing of Professional Fiduciaries
There is upcoming legislation that will be proposed in 2017 in the Legislature that involves the licensing of professional fiduciaries, which would include professional guardians.
In summary, it is a time of continuing development for Florida’s guardianship laws while changes continue to be made and while implementation of new rules continue. There has been some debate as to whether all the changes are necessary, or if they are being made to attempt to remedy only perceived problems that may occur on a limited basis in large urban areas. Having appropriate safeguards in place in the guardianship realm of course only benefit all communities and the recent changes ensure that our guardianship laws reflect a well-thought-out plan for protecting wards in our community and statewide.
Rebecca M. Vaccariello, Esq.
Rebecca M. Vaccariello is a litigation attorney at Salvatori, Wood, Buckel, Carmichael & Lottes. Rebecca focuses her practice on civil litigation matters, including trust and estate litigation and guardianships. She is involved in the Florida Bar Real Property, Probate and Trust Law (RPPTL) Section and a member of the Guardianship, Advance Directives and Power of Attorney Committee, as well as the Probate and Trust Litigation Committee.
This Article does not constitute legal advice and may not be relied upon as such. Each individual’s facts and circumstances are different. If you have any questions regarding your particular situation, please consult with legal counsel.