Making a legally valid complaint about a guardian in Florida

Legal documents in Ms. McDowell’s case. A former housemate had pushed for a court petition claiming Ms. McDowell was unable to take care of herself. PHOTO: STUART ISETT FOR THE WALL STREET JOURNAL Legal documents in Ms. McDowell’s case. A former housemate had pushed for a court petition claiming Ms. McDowell was unable to take care of herself. PHOTO: STUART ISETT FOR THE WALL STREET JOURNAL

FILING A LEGALLY SUFFICIENT COMPLAINT AGAINST A GUARDIAN

In order to create and successfully submit a legally sufficient complaint which is likely to be accepted as valid against a guardian to OPPG or any other investigative agency, you must construct the complaint to conform to a specific style.

General Instructions on how and where to file complaints is found at:

https://elderaffairs.org/programs-services/office-of-public-professional-guardians-oppg/file-a-complaint/

Be very concise and specific. Do not check more than 2-3 of the specific boxes below per complaint. More than that will make your complaint much more difficult to investigate properly and therefore far less likely to succeed. If there are more violations than that, you will have an opportunity to either add on later, especially if the first complaints are verified, or to file another complaint down the road. Make it easy for the investigator to zero in on an offense they can prove took place. The trick is to help the investigator confirm your initial allegations as quickly as possible.

Do not make broad sweeping complaints (i.e.,The guardian is cruel). Your complaint must be very fact specific and each allegation in it must be connected to a specific violation of a statute.  You should include:

  • Who committed the violation
  • Your detailed description of the violation—what did you see or hear or learn?
  • The date(s) and time(s) of the violation
  • Where the violation took place
  • Any and all Witnesses to the violation or pattern of violations
  • Objective Evidence of the violation (photos, recordings, reports, testimony, police reports)
  • The precise statute or adminsitrative rule you feel was violated

Guardianship supervision is governed by the Florida Administrative code rules found at

https://casetext in violation of ______.com/regulation/florida-administrative-code/department-58-department-of-elder-affairs/division-58m-office-of-public-and-professional-guardians/chapter-58m-2-guardianship/section-58m-2009-standards-of-practice

You should familiarize yourself with these standards and make reference to the specific standard that you feel has been violated.

Additionally, Florida Law (Statute 744) also describes specific actions that are violations of the Law.

The Statute (744)  states Complaints; disciplinary proceedings; penalties; enforcement:

(a) . A complaint is legally sufficient if it contains ultimate facts that show a violation of a standard of practice by a professional guardian has occurred

The most frequent statute violations are in RED

744.3215 Rights of persons determined incapacitated .

(1) A person who has been determined to be incapacitated retains the right:

(a) To have an annual review of the guardianship report and plan

(b) To have continuing review of the need for restriction of his or her rights

(c) To be restored to capacity at the earliest possible time

(d) To be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation

(e) To have a qualified guardian

(f) To remain as independent as possible, including having his or her preference as to place and standard of living honored, either as he or she expressed or demonstrated his or her preference prior to the determination of his or her incapacity or as he or she currently expresses his or her preference, insofar as such request is reasonable

(g) To be properly educated

(h) To receive prudent financial management for his or her property and to be informed how his or her property is being managed, if he or she has lost the right to manage property

(i) To receive services and rehabilitation necessary to maximize the quality of life

(j) To be free from discrimination because of his or her incapacity

(k) To have access to the courts

(l) To counsel

(m) To receive visitors and communicate with others

(n) To notice of all proceedings related to determination of capacity and guardianship, unless the court finds the incapacitated person lacks the ability to comprehend the notice

(o) To privacy

(2) Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right:

(a) To marry in violation of ______. If the right to enter into a contract has been removed, the right to marry is subject to court approval in violation of ______.

(b) To vote

(c) To personally apply for government benefits

(d) To have a driver license

(e) To travel

(f) To seek or retain employment

(3) Rights that may be removed from a person by an order determining incapacity and which may be delegated to the guardian include the right:

(a) To contract

(b) To sue and defend lawsuits

(c) To apply for government benefit

(d) To manage property or to make any gift or disposition of property

(f) To consent to medical and mental health treatment

(g) To make decisions about his or her social environment or other social aspects of his or her life

(4) Without first obtaining specific authority from the court, as described in  744.3725, a guardian may not:

(a) Commit the ward to a facility, institution, or licensed service provider without formal placement proceeding, pursuant to chapter 393, chapter 394, or chapter 397.

Following is a sample form to cocomplete and copy. Please add on the code or statute you feel was violated for each allegation:

Ward Name:

DOB:

Current Location:

Case Number:

Guardian:

Your Name:

Relation to Ward:

Your contact information:

Today’s Date:

ABUSE ALLEGATIONS

It is my belief and I allege that the Ward is being abused, neglected and financially exploited by the

Guardian who is misusing her power and not acting in the best interests of the Ward in violation of ______.

The boxes checked indicate the abuses alleged which require investigation in violation of ______.

Abuse:

[ ] The Ward has been cruelly isolated from family, neighbors and friends  in violation of ______.

[ ] The Ward has been removed from her residence and into a facility where she is in

danger and her needs unmet  in violation of ______.

[ ] Guardian threatened Ward of consequences of resistance  in violation of ______.

[ ] The Ward has been held in chemical restraints with handler drugs which place the

Ward into a zombie-like state  in violation of ______.

[ ] The guardian is withholding vital medical treatment and instead overdosing with

potentially lethal doses of drugs in violation of ______. Including: narcotics, tranquilizers, sedatives, atypical

antipsychotic medication, which are contraindicated in the treatment of the elderly  in violation of ______.

[ ] This/These medication(s) is/are hastening the Ward’s demise  in violation of ______.

[ ] The Ward has been made unable to eat or drink and has had a feeding tube inserted  in violation of ______.

[ ] The Ward is not receiving adequate nutrition and is becoming emaciated  in violation of ______.

[ ] The ward has gained excessive weight to an improper starchy salty fatty diet  in violation of ______.

[ ] The Ward’s general condition is deteriorating rapidly  in violation of ______.

[ ] The Ward is not receiving proper treatment or medical care for her condition(s)  in violation of ______.

[ ] The Ward is being denied needed medical services including: skilled nurses, oxygen,

medical equipment, nursing assistants, aides, physical therapy  in violation of ______.

[ ] The Ward is being denied emotional support and counseling  in violation of ______.

[ ] The Ward has been denied much needed dental care and cannot eat properly as a

Result  in violation of ______.

[ ] The Guardian has transferred the Ward’s care from long time family Physicians to

unfamiliar less qualified providers and institutions which are directly and greatly profiting

from their association with and referrals from the guardian and their ability to improperly

bill and overbill Medicare and other programs  in violation of ______.

[ ] The Ward is prevented from practicing religion of choice or attending services in violation of ______.

[ ] The Ward is prohibited from leaving her place of residence in violation of ______.

[ ] The Ward shows observable signs of overt physical abuse and injury that only

occurred in her current place or residence in violation of ______.

[ ] Ward has been kept with people who are violent and have mental health issues in violation of ______.

[ ] Ward has been attacked by patients and/or residents with mental health issues who room with or near them or by staff members in violation of ______.

[ ] Guardian hires abusive neglectful health care workers to take care of Ward in violation of ______.

[ ] Ward has been restrained with straps to wheelchair and bed in violation of ______.

[ ] Ward is not allowed to have visitors without supervision from guardian personnel in violation of ______.

[ ] Guardian does not timely notify family members of hospitalization in violation of ______.

[ ] Guardian does not timely notify family members of serious health issues in violation of ______.

[ ] Guardian will not respond to phone calls or emails about Ward’s condition forcing family to expend funds to hire a lawyer to speak with the Guardian’s lawyer in violation of ______.

[ ] Guardian has induced or created stay away orders as retaliation against family in violation of ______.

[ ] The guardian has threatened to retaliate against anyone who complains in violation of ______.

[ ] Ward has been improperly and cruelly placed in lockdown unit without hearings in violation of ______.

[ ] Ward has been placed in Hospice despite Advance Directives not to be in violation of ______.

[ ] Other:

Neglect:

[ ] The Guardian is unconcerned about the Ward’s deteriorating condition in violation of ______.

[ ] The Guardian refuses to communicate with family members  in violation of ______.

[ ] The Guardian only very rarely visits the Ward and cannot know her condition in violation of ______.

[ ] The Guardian has instructed others to prevent any contact with loved ones in violation of ______.

[ ] The Guardian has removed all forms of support and assistance from the Ward in violation of ______.

[ ] The Ward has been denied access to her beloved pet in violation of ______.

[ ] The Ward is treated without dignity or respect in violation of ______.

[ ] The Ward is not properly cleaned or bathed or groomed in violation of ______.

[ ] The Ward’s nails and toenails are left untrimmed in violation of ______.

[ ] The Ward is limited or prohibited from receiving or making phone calls or receiving mail in violation of ______.

[ ] The Ward is not provided proper clean clothing or is left only in a flimsy gown all day in violation of ______.

[ ] The Ward is not mentally stimulated and is exposed to unending television as her only contact with the world in violation of ______.

[ ] Ward eats with hands: not given assistance with eating or drinking or is too weak to reach food in violation of ______.

[ ] Ward is intentionally left dehydrated to avoid changing diapers in violation of ______.

[ ] Ward sits in feces without changing for hours in violation of ______.

[ ] Ward is not given nutritional supplements for bone loss or protein deficiency in violation of ______.

[ ] Ward is seldom or not allowed to go outside for sunshine thus sickening her bones in violation of ______.

[ ] Ward is not provided speech therapy or physical therapy after stroke in violation of ______.

[ ] Ward is not provided with mental stimulation through activities in violation of ______.

[ ] Ward has little or no contact with the outside world; held captive in violation of ______.

[ ] Ward has developed bedsores for the first time in violation of ______.

[ ] other

Financial Abuse and Exploitation:

[ ] The Guardian is diverting and hoarding all assets and income to assure her fees and Attorney’s will be paid in full while denying Ward the use and benefit of Ward’s own assets in violation of ______.

[ ] The Guardian has failed to timely pay legitimate bills of the Ward in violation of ______.

[ ] The Guardian refuses to reimburse family for legitimate expenses for the Ward in violation of ______.

[ ] The Guardian does not provide adequate funds for the welfare of the Ward in violation of ______.

[ ] The Guardian is ignoring the Will of the ward and estate by invading assets for her own gain which were intended to be passed down intergenerationally in violation of ______.

[ ] The Ward is being denied basic services including much needed

[ ] physical therapy

[ ] rehabilitation

[ ] emotional support and counselling

[ ] proper medical care

[ ] other:

 Which she could easily afford if properly protected by the guardian in violation of ______.

[ ] Instead, the Guardian is assuring that the Ward will end up penurious and on the public dole as a result of her fiduciary failure and diversion of assets to pay her fees and her Attorney’s fees

[ ] Assets are being rapidly downspent to the benefit of the Guardian and her associatesand in particular are being hoarded for the purpose of paying outrageous Guardian’s bills and excessive improper legal bills from the Guardian’s Attorneys and others, leaving the Ward bereft of a lifetime’s accumulation of assets and destitute in violation of ______.

[ ] Assets are being sold off to associates of the Guardian at far below market value and then resold at great profit to the Guardian and her associates—these are overt acts of felonious self-dealing in violation of ______.

[ ] Guardian is not properly filing tax returns for Ward in violation of ______.

[ ] Guardian has not timely paid or collected real estate taxes/assessments/rent properly on the Ward’s property in violation of ______.

[ ] Guardian has failed to honor agreed upon lease agreements  in violation of ______.

[ ] Guardian is collecting her fees as a tax exempt entity, but denying Ward the

deductions she would be entitled to on Ward’s returns—I

[ ] Failure to pay Ward’s income taxes properly has resulted in liens against Ward’s property, depleting the estate further in violation of ______.

[ ] Guardian has failed as a fiduciary to properly invest assets resulting in great losses to the estate in violation of ______.

[ ] Guardian has failed to maintain/repair ward’s property, greatly decreasing its value in violation of ______.

[ ] Guardian has seized valuable property and will not reveal its whereabouts in violation of ______.

[ ] Guardian has caused to be created appraisals of real and personal property that vastly underestimate value of said property in violation of ______.

[ ] Guardian has failed to provide receipts for outlays of funds in violation of ______.

[ ] Guardian overbills and provides services at far above reasonable charges in violation of ______.

[ ] Guardian hires and pays their family members to care for Ward in violation of ______.

[ ] Guardian allows trust to be depleted in violation of ______.

[ ] Guardian demands money from family members to buy back family heirlooms in violation of ______.

[ ] Guardian will not replace worn items of clothing or shoes for the Ward in violation of ______.

[ ] Guardian makes false entries to inflate monthly expenditures of the Ward in violation of ______.

[ ] Guardian spends money on items that do not benefit the Ward and denies basic

needs in violation of ______.

[ ] Guardian improperly disposes of Ward’s personal property and furniture in violation of ______.

[ ] Guardian refuses to properly safeguard valuables in violation of ______.

[ ] Guardian does not have or refuses to divulge an accurate inventory of property in violation of ______.

[ ] Ward’s assets have gone missing or never inventoried properly in violation of ______.

[ ] Guardian seized funds from Banks without court order in violation of ______.

[ ] Guardian has interfered with medical care plans including discharge plans to prolong lock down stays and hide the Ward from family in violation of ______.

[ ] Guardian or her associates have stolen jewelry and other valuables in violation of ______.

[ ] Other:

Diversion of SSA and VA benefits:

[ ] The guardian has been/is diverting social security benefits for her own profit and not for the well-being of the ward in violation of ______.

[ ] The guardian has denied the ward, who is a Veteran, both financial pension payments and medical support and assistance available to him at no charge by the VA

Legal Abuse:

[ ] Timely or no notice of an emergency temporary guardianship was not provided in violation of ______.

[ ] The statutorily required Bond for the Guardian was not obtained or presented in violation of ______.

[ ] The Guardian committed fraud and perjury by alleging to the court that:

[ ] The Court refused to consider a less drastic and invasive intervention other than Guardianship as required by Florida Statute 744 in violation of ______.

[ ] The Court refused to hear evidence of capacity from outside experts in violation of ______.

[ ] The Ward’s advance directives and health care power of attorney, properly executed by the Ward prior to any question of incapacity, were bypassed and the guardian did nothing to present or support them in court in violation of ______.

[ ] There was never a mandated hearing on advance directives or Baker Act within 72 hours in violation of ______.

[ ] The Probate Judge has failed to properly monitor, supervise or discipline the Guardian in violation of ______.

[ ] Court documents, including transcripts, have been altered in violation of ______.

[ ] Attorneys’ hourly rates are excessive, double billed and fraudulent in violation of ______.

[ ] Attorney bills charge exorbitant Senior Attorney rates for simple legal services which could easily be performed by paralegals in violation of ______.

[ ] At depositions and hearings participation by multiple attorneys from Guardian’s in violation of ______.

Attorney’s law firm took place repeatedly and unnecessarily resulting in excessive

unrestrained fees to/from the estate in violation of ______.

[ ] Guardian colluded with one side of family dispute to abet the legal abuse in violation of ______.

[ ] Guardian failed to properly use mediation to avoid litigation in violation of ______.

[ ] Guardian abused mediation process since those discussions are privileged in violation of ______.

[ ] Guardian hid misdeeds under guise of privacy issues in violation of ______.

[ ] Guardian blackmailed family members into signing releases in violation of ______.

[ ] The Guardian and her Attorney have repeatedly staged retaliatory litigation to

increase their revenue at the expense of the estate and family in violation of ______.

[ ] Guardian threatened family members that any complaints about the Guardianship would lead to their never seeing their loved one again in violation of ______.

[ ] Other