Background: Florida’s legislature is attempting to pass another guardianship reform bill in 2016, to build upon the success of Florida HB 5 from 2015’s legislative session. SB 232 is being proposed by Florida State Senator Nancy Detert. Below are comments from AAAPG Founder Dr. Sam Sugar about what passage of SB 232 might mean for guardianship reform.
AAAPG deeply appreciates the Senator Detert’s commitment to addressing aspects of reforming the guardianship statutes so that the egregious abuses that we have witnessed for decades all over the state can be eliminated.
However one of several concerns with this particular bill is that it retains the Dept. of Children and Family Services as the judge, jury and executioner with regard to legitimate citizen complaints about Guardian abuse. As gatekeeper, investigative agency and gateway to law enforcement and states attorneys, DCF and it’s adult protective services division have a long history of both ignoring legitimate victim’s complaints as well as accusing and victimizing the complainant. We see no likelihood that this cultural bias in DCF will change anytime soon because of the strong evidence we have accumulated of APS agents –who are the front-line investigators– benefiting financially from their relationships with guardians and their lawyers.
Furthermore as we have learned since the passage of Senate Bill five last session, law enforcement throughout the state and in particular states attorneys have miserably failed to enforce the new law. Passing a bill into law sounds great, but unless law enforcement actually enforces it, is meaningless.
Those who witness criminal guardianship abuse or other forms of elder abuse are in a no-win situation.
- Reporting Guardian or lawyer misconduct to the judge who appointed the Guardian and lawyer in the first place is not only self-defeating but it guarantees retaliation, staged litigation, exorbitant expenses, certain disappointment, protracted legal abuse as well as recriminations against the ward
- There is no meaningful way to even report the abuse to law enforcement. Few people realize that there is a statewide sheriffs department agreement in place which actually prohibits police departments, the first line of entry into law enforcement systems throughout state, from even taking complaints about guardianship abuse. Every sheriff from each of the 67 counties in the state has agreed not to take these types of complaints but rather to refer individuals to DCF.
- Engaging DCF/APS has uniformly and consistently proven futile and even dangerous. We are not aware of a single case where a complaint to DCF/APS has resulted in justice for victims of guardianship abuse in Florida for the last decade
- Even if DCF/APS were to ever actually report abuse, states attorneys offices which are the gatekeepers for criminal investigation and indictment are uniformly unwilling to enforce the laws they are sworn to uphold.
- complaints about judges to the judicial qualifications committee never result in discipline for judges. it is simply a system where judges protect other judges. Of the many thousands of complaints to the JQC every year less than 1/10 of 1% ever result in any action at all against judges and certainly none from probate.
- complaints to the Florida bar about lawyers in guardianship cases are futile. In the last 10 years despite numerous complaints about lawyer misconduct in probate, not one attorney from the elder law or RPPTL section of the Florida bar has ever received even the tiniest slap on the wrist from the Florida bar according to information obtained from the bar with a freedom of information request
Senate Bill 232 creates an entirely new bureaucracy in the Dept. of Elderly Affairs which is intended to administer administrative discipline with a carrot and stick approach. However the stick is more like a twig in that the worst punishment an abusive criminal Guardian can get from this proposed department is loss of certification. This is not an adequate deterrent when billions of dollars are at stake, when there’s absolutely no likelihood of crimes against the elderly leading to jail time and when the system is rigged from top to bottom with get out of “jail free cards” for the criminal guardians and every other stakeholder in the abusive system of probate guardianship.
We are troubled that Florida Senate Bill 232 mandates that the Director of the new bureaucracy be a member of the Florida Bar. since every attorney involved in abusive guardianship cases is a member of the Florida bar and the Florida bar and Florida Supreme Court have done absolutely nothing–despite full knowledge of the crisis at every level of the bar– to respond to the crisis in legal abuse from guardianship abuse cases, thus aiding and abetting further abuse.
The bill also mandates that any rules promulgated in this new massive bureaucracy be done in consultation with guardianship Associations. Thus the Fox is being invited to design the hen house. Every abusive guardians belongs to one of these associations and to have them involved with the design of a new agency that was created because of their abuse is not only irrational but ludicrous.
Guardianship reform is a very difficult issue. Criminal guardianship abuse is so profitable, so easy, so risk-free that it has attracted record numbers of new guardians and that large cadre of the guardians will certainly result in many more guardianships across the state. The courts are ill-prepared to handle this and judges have proven that they cannot monitor even the number of guardians currently in place. Reform laws are ignored by law enforcement. This abusive system which happens under the noses of probate judges is bulletproof and unstoppable for now.
Legislation alone will not solve this issue, but forceful legislation is needed to continue the momentum for the legislature to express a strong desire to fix a terribly broken and abusive system.
Dr. Sam Sugar
Sept 9, 2015