The Shifting Landscape of Guardianship Law: Three Consecutive Years of Changes

Changes to Florida’s guardianship laws in the past few years have been focused on providing more protection for wards and stricter scrutiny of guardians. These changes came about due to concerns about abuses by professional guardians and the need to improve the system. The Legislature made substantial changes to the Guardianship Code in 2014, 2015, and 2016, including requiring stricter background checks for guardians and disclosure of previously expunged or sealed criminal records for individuals applying to be guardians. H.B. 635 and H.B. 5 are two laws that provide more protections for people who need guardians to help them make decisions. These laws give the clerk’s office more authority to review guardianship reports and get more information about the guardianship assets. They also give the clerk the power to ask for documents and records that may affect the guardianship. If the guardian doesn’t give the documents, the clerk can ask the court to make the guardian explain. H.B. 5 adds even more rules to protect people in guardianship proceedings. Before H.B. 5, when someone was thought to be unable to make decisions, their power of attorney was automatically stopped. This was meant to protect the person from being taken advantage of by their agent, but it also caused problems. It could go against the person’s wishes and limit their freedom to choose who helps them if they become unable to make decisions. People wanted to change this rule to give more control to the person who may need help making decisions, and to reduce the need for guardianship. The new law H.B. 5 tries to balance the rights of people with powers of attorney and family members, while also protecting the person who may be in danger. Powers of attorney for close family members won’t be automatically suspended, but others can file a motion to suspend them. There are also changes to how emergency temporary guardians can be appointed, with more notice and exceptions for cases where the person is in immediate danger. Overall, the new law tries to protect everyone involved while also preventing abuse. Some people felt that the process for appointing guardians for people who can’t make decisions for themselves was flawed. The new law now requires the court to consider the wishes of the person’s family when choosing a guardian. It also makes it harder for professional guardians to be appointed, and requires the court to rotate through different professional guardians, unless there is a good reason not to. New laws were passed to protect people who need a guardian. Professional guardians can’t serve as a permanent guardian if they were the temporary guardian, unless the family asks for it. The law also makes it clear that guardians can’t abuse, neglect, or exploit the person they are taking care of. It’s now easier for a person to end their guardianship if they show they can take care of themselves. Guardians also have to consider what the person they are taking care of wants and needs and let them see their family and friends. And guardians have to tell the court if they think the person they are taking care of is getting better. H.B. 5 makes it easier for people to go to court if they’re worried about how a guardian is treating someone. It also helps people with no money get someone to keep an eye on the guardian. The new law also changes the rules for how much a guardian can get paid and who pays for the court case about their fees. H.B. 5 made some changes to keep private information in guardianship cases confidential. The law now says that certain records, like settlements and reports, are confidential and can’t be seen by the public. It also lets certain people, like the guardian ad litem and the minor’s attorney, look at these records without needing permission from the court. Then in 2016, Gov. Scott signed S.B. 232 into law, which created the Office of Public and Professional Guardians (OPPG) to regulate and discipline professional guardians. Before S.B. 232, there wasn’t much oversight for professional guardians. The new law now makes it stricter for them, with rules for how they should act, education requirements, and punishment if they break the rules. The Office of Public and Professional Guardians now has the power to discipline professional guardians, but they also have to give them fair procedures. We’ll have to wait and see what other rules they come up with. The laws for guardianship in Florida are changing, and there may be more changes in the future. These changes are important for protecting people who can’t make decisions for themselves. The lawyers who work with these cases need to be careful and fair, and judges play a big role in making sure everything is done right. It’s important to make sure that everyone’s rights are respected. These are references to specific laws in Florida related to guardianship and probate, along with information about two lawyers who focus on these areas of law. The lawyers are involved in committees and organizations related to probate, trust, and guardianship law. This information was submitted by the Real Property, Probate and Trust Law Section of The Florida Bar.

Source: https://www.floridabar.org/the-florida-bar-journal/the-shifting-landscape-of-guardianship-law-three-consecutive-years-of-changes/