New Guardianship Laws Could Provide Alternatives to Probate

New Guardianship Laws Could Provide Alternatives to Probate

Barry E. Haimo, Esq.

June 4, 2015

Very few would call Florida’s guardianship program “perfect.”

In fact, many—including the Miami New Times— would go as far as to call it “much-maligned” and in desperate need of an overhaul.

Under Florida guardianship laws, people who are deemed “incapacitated” are robbed of many of their basic human rights with a word from a judge. When this happens, the court appoints a guardian who is charged with that person’s care, medical decisions, and finances.

While being stripped of basic rights can be upsetting enough, for many incapacitated wards, it’s only the start of their nightmare. There have been countless tales of individuals in our guardianship program who have been abused, neglected, robbed, and taken away from their families by their guardians. Below, you can read about an example of one of them.

Gavin Morgan’s Guardianship Nightmare

Throughout his 35 years managing his own contracting company in Chicago, Gavin Morgan had dreamed of retiring to sunny Florida. Gavin and his wife, Katelyn, scrimped and saved their entire lives so they could do just that, and at the age of 65, they moved into a bright and airy condo in Palm Beach County. Gavin and Katelyn had built a sizeable estate through years of careful planning, and were able to enjoy a relatively cushy retirement with weekly dinners at seafood restaurants and weekends at the beach.

However, tragedy struck when the Morgans were involved in a deadly auto accident with a supermarket chain truck that killed Katelyn and left Gavin badly injured. He spent the weeks following the accident in the hospital, heartbroken, scared, and foggy-headed from painkillers. Hazily, he recalled men with clipboards standing by his bed, asking questions about US history that seemed oddly irrelevant given the circumstances.

The men had been sent by the supermarket chain that owned the truck responsible for the wreck. After their brief interrogation of Gavin, they filed a petition in a Palm Beach County Court, requesting the court to declare him incapacitated. The petition stated that they had found Gavin to be incapable of taking care of himself in the aftermath of the crash, and asked the court to assign a guardian to be in charge of his care and make decisions for him.

Immediately, Gavin was stripped of his basic human rights. The man who was appointed Gavin’s guardian was given control over all aspects of his life, including his medical care and finances. At his guardian’s firm suggestion, Gavin lost his right to a driver’s license, and to vote.

Then Gavin’s court-appointed guardian sold the Morgan family’s beloved boat, their car, and much of their furniture, claiming this was necessary to cover living expenses and the cost of guardianship.

Gavin’s two grown children became suspicious that their father’s guardian was misusing his power after not being able to contact their father for nearly two months. Gavin’s son, Mark, decided to pay his father an unannounced visit, flying to Florida from his home in Chicago. When he arrived at his father’s condo, he was horrified to find that it was practically barren. His father was confined to a small cot, heavily medicated and unable to move around and tend to his basic needs because of legs broken in the crash. Mark noticed his father had lost a lot of weight and looked as though he hadn’t been bathed or shaven in several days.

Immediately, Mark called his sister, and the two decided to take action. This proved to be frustratingly difficult, however, since, as they learned, there was almost no system in place that allowed them to complain about a guardian. After a lengthy and costly battle in probate court, they were able to free their father from his wrongful guardianship and reinstate his freedom. Much of the property the guardian had sold, however, was lost forever.

Today, Gavin has made a full recovery, and is working to rebuild his life. He lives on his own in his condo, and attends yoga classes twice a week.

A Push for Change

Recognizing the need for drastic change, local legislators have sponsored several promising bills regarding guardianship. One bill in particular—Senate Bill 1226—could potentially give our state’s guardianship system its much-needed overhaul.

The bill, proposed by republican senator Nancy Detert, would make it possible for families like Gavin’s to complain about a neglectful, abusive, deceptive, or unqualified guardian. Currently, the only option available for concerned families and friends to contest an unscrupulous guardian is to go through probate court. This can be particularly problematic because of good old fashioned politics.

The bill seeks to address this gaping hole in our guardianship system by creating a separate agency to monitor and discipline guardians. If the bill passes, the Office of Public and Professional Guardians would be charged with supervising guardians to prevent disturbing and alarmingly common experiences like Gavin’s from happening again.

Author:
Barry E. Haimo, Esq.
Haimo Law
Strategic Planning With Purpose
Email: barry@haimolaw.com
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