How guardianship bonds work
The events surrounding guardianship can be very traumatizing and exceptionally complex. As if having a loved one lose their rights, their estate, their home and their place in society were not enough, victims and family members are forced to deal with a dizzying array of technical and legal obstacles to suppress or prevent redress of grievances against the overwhelmingly powerful unsupervised unmonitored guardianship system.
This includes the entire concept of bonding the Guardian.
This discussion is limited to issues involving professional rather than family guardians.
At least on paper, professional guardians once they are certified (rather than licensed) by (in Florida) the OPPG, are required to post a bond with that office to assure their compliance with the rules and regulations of OPPG. In addition, at least on paper, judges are empowered to require an additional bond in every case to which the professional Guardian is appointed. Typically, according to our research, that “fiduciary performance” bond is in the amount of $50,000.
In theory an interested party to the guardianship could make a motion– either through a lawyer or pro se– to the judge of alleging and proving misbehavior on the part of the Guardian (like glaring mistakes and missing funds in the financial annual reporting or the like). If the judge approved the motion to “surcharge” the Guardian for his actions the Guardian would be liable to pay the specified amount of damages to the family member plaintiff. If for whatever reason the Guardian could not or would not pay the surcharge the judge could make a claim on the Guardian’s performance bond to demand that it be paid to satisfy the judgment “surcharge”.
Parenthetically, these types of bonds also exist to allow the state to recover the assets of an individual who dies with no heirs and turn them over to the state because wards are wards of the state owned by the state.
The system as described above by an expert national bond provider is fairly uniform across the country.
So what could possibly go wrong?
As with most glaring flaws in the guardianship system, a single judge in equity is the ultimate gate keeper for these types of complaints and issues. The likelihood of the judge delivering a judgment against the very guardian he himself appointed repeatedly is tiny. To even get to the point of making a motion for such an action, the family member/victim/plaintiff would be required to hire an attorney to file such claim. In response, the Guardian’s lawyer, paid for by the estate, would counter with litigation, discovery, depositions and every reimbursable legal maneuver imaginable to bill more hours and protect his client the Guardian. As opposed to the non-jury system of guardianship disposition, he could request a civil jury trial as well. Like so many matters in the legal system, this process could drag on for years and it would be highly likely that the costs of even bringing such a lawsuit against the Guardian would far exceed the value of any bond, making the process yet another frustrating and costly waste of time.
Particularly when dealing with well-known and court insider professional guardians, the court often extends what is called professional courtesy to the professional Guardian allowing the Guardian to forgo the purchase of a bond altogether. Having experience in this area, smart guardians make sure that all their personal assets are shielded from any court actions by creating shelters for their assets and money to keep them becoming available in any legal action against them.
While it appears that actions against Guardian bonds are not that unusual, according to the president of the national bonding company that I spoke to, there is no system in place to report claims against Guardian bonds. While it would be helpful to know which guardians have had complaints serious enough to warrant claims on their bonds the state does not collect that information or provide any such data to researchers.
While a professional Guardian may be required to post additional bond in favor of the OPP G in order to become certified, and while the Guardian may be required to post additional bond’s for success of cases to which he or she is appointed, the only way that those bonds can even be identified by the public is to demand access to public records. Here is an example:
Office of the General Counsel
Florida Department of Elder Affairs
4040 Esplanade Way
Tallahassee, FL 32399-7000
ATTN: Djanet Cannady-Morgan, Office of General Counsel
To Whom It May Concern:
Pursuant to Article I, section 24 of the Florida Constitution, and chapter 119, F.S., I am requesting copies of the following public records:
Bonds and application for Bonds for Florida Certified Guardian JANE DOE
for all years from 2012 to the present.
Should you deny my request, or any part of the request, please state in writing the basis for the denial, including the exact statutory citation authorizing the denial as required by s. 119.07(1)(d), F.S.
I will contact your office within one week, to discuss when I may expect fulfillment of my request, and payment of any statutorily prescribed fees. If you have any questions in the interim, you may contact me at [fill in a telephone number or email address].
The bond company also has a vested interest in preventing claims on the bonds they write as they represent a loss to their bottom line. Anyone attempting to claim a bond will also have to deal with attorneys from the bond company. Especially infuriating is the fact that should the claim fail for whatever reason the claimant/victim/plaintiff will be forced to pay the legal fees of the bond company as well as their own fees further making even the attempt to claim on a bond and extremely high risk very low yield maneuver.
Guardianship fiduciary bonds give the illusion of some degree of protection against guardianship misbehavior but combined with judicial immunity for the judge and quasijudicial immunity for the court insiders, it is only an illusion. In reality victims of guardianship abuse and exploitation have absolutely no reasonable or dependable pathway to achieve redress of their grievances against a Guardian or anyone in the guardianship industry. We are all truly in danger from their avarice and unbridled exploitation of the most vulnerable among us.