The final gatekeeper in the Guardianship system is the judge. However, court-appointed guardians are given great power.
Professional guardianship has been called a “growth business” in Florida, with the number increasing from 12 registered professional guardians in 2003 to 456 in 2015, according to the state’s Department of Elder Affairs. The Florida State Guardianship Association describes guardianship as “a process designed to protect and exercise the legal rights of individuals whose functional limitations prevent them from being able to make their own decisions. It is the most restrictive type of decision-making assistance.”
The intention behind guardianship may be good, but what happens when the professional guardian acts in an unethical or dangerous manner in relation to the elder? If the alleged incapacitated person has been wrongly stripped of their rights, how often does a professional guardian work to help the senior regain his/her life back?
With 40 hours of training and a modest background check, a professional guardian can start earning $85 an hour and have control over a ward’s property, finances, medical decisions, housing and social relationships. In other words, the guardian has the ability to “Liquidate, Isolate, Medicate” — liquidate your assets, prevent you from seeing your family, and put you in a nursing home to die.
What happens when the court-appointed guardian “goes rogue” and badgers the senior in the process to Liquidate, Isolate, Medicate?
This is what is happening in Lillie’s case. The court-appointed temporary guardian has been aggressively badgering and endangering her. The guardian is given a lot of latitude with minimal court oversight. A guardian is required to submit an annual report to the court. The clerk’s office is responsible for reviewing these reports and investigating any concerns they may have as a result. Additionally the clerk’s office would investigate any allegation of impropriety that is reported to them. Following the clerk’s audit, the report is taken to the presiding guardianship judge for review and approval.
In Florida, a judge is the only one with authority to appoint a guardian and approve compensation. In most judicial circuits guardianship matters are handled by the Probate Section of the Circuit Court. The court has authority to impose penalties and even remove a guardian if he/she is not acting ethically and in the best interest of the person under guardianship. But how often does that happen? What if the judge is complicit… or just complacent?
In a Panama City News Herald article entitled “Seniors could get protection from guardian wrongdoing,” Republican member of the Florida House of Representatives Larry Ahern said, “In extreme cases, the wards are sometimes prevented from regaining their competency and remain, in effect, prisoners of guardians.”
There have been so many complaints against professional guardians in Florida that they are finally outlining Standards & Disciplinary Guidelines.
On April 20, 2016, the Florida Department of Elder Affairs initiated rulemaking procedures to address the regulation of professional guardians. On August 16, 2016, there was another Rule Workshop held in Tallahassee. The goal was to “establish standards of practice, disciplinary guidelines, and credit investigation procedures for public and professional guardians, as well as implement revision of rules as needed based on legislative changes.”
The draft Standards of Practice, which are expected to be in place October 2016, outlines the Guardian’s relationship to the court, with the Ward (senior), with the family members and friends, as well as with other providers of services to the Ward. It also puts forth expected behavior such as to “advocate for the goals, needs, and preferences of their Wards,” to place “the least restrictions on their Wards’ freedoms, rights, and ability to control their environments,” and to “respect Wards’ privacy and dignity.”
More importantly, there is now a draft of Disciplinary Guidelines for Public and Professional Guardians. The violations range from “failing to comply with educational course requirements” to “engaging in unprofessional conduct, which includes, but is not limited to, any departure from, or the failure to conform to, the standards of practice.” Disciplinary action ranges from a written reprimand to revocation of the license. This is a good start. Let’s see how the “old boy network” responds to these new rules.
U.S. Senate declared June 15, 2016 as World Elder Abuse Awareness Day which was unanimously approved in a bipartisan resolution.
The resolution was introduced by U.S. Senators Susan Collins (R-ME), the Chairman of the Senate Special Committee on Aging, and Richard Blumenthal (D-CT), a Member of the Committee and calls attention to the problem of elder abuse around the nation, and honors all those that fight for justice for victims. U.S. Senators Kelly Ayotte (R-NH), Claire McCaskill (D-MO), Chuck Grassley (R-IA), Bob Casey (D-PA), Tom Cotton (R-AR), Thom Tillis (R-NC), Chris Murphy (D-Conn.) and Dean Heller (R-NV) cosponsored the resolution.
Governor Rick Scott followed and declared Elder Abuse Awareness Day in Florida on June 15, 2016. In the proclamation, he said, “Florida’s seniors are valued members of society, and it is our collective responsibility to ensure that they live safe lives.” They should be “treated with respect and dignity to enable them to continue to serve as leaders, mentors, volunteers, and important and active members of society.” He went on to state, “we are all required to report elder abuse, neglect, and exploitation when we suspect it.”
Again, this is a good start but we need more than awareness. We need an overhaul of the Elder Guardianship system nationwide, and particularly in Florida. We need stiffer penalties for those — especially agents of the court – who abuse elders. Getting old is not a crime. Be sure to read the Huffington Post article, “Is Elder Guardianship a New Form of Human Trafficking?“
While these necessary changes are underway, Lillie is still being held prisoner by the Florida Elder Guardianship system. Please find out how you can help #FreeLillie. Follow us and retweet at @elderdignitynow. If you have specific comments, email email@example.com.
Contributed by Teresa Kay-Aba Kennedy — Harvard Business School-trained strategist, World Economic Forum Young Global Leader, Human Potential Advocate/Coach, and President of Power Living Enterprises, Inc. Her latest award-winning book—co-authored with her mother Columbia University-trained journalist Janie Sykes-Kennedy—is Dancing Light: The Spiritual Side of Being Through the Eyes of a Modern Yoga Master on her teacher/mentor 98-year-old yoga master Tao Porchon-Lynch.