Opinion: Nobody likes Guardianship

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Opinion: Nobody likes Guardianship

During my recent appearance on NPR-WLRN in Miami an individual named Steve who claimed to be the past president of the Florida State Guardianship Association called in to comment on the program that was devoted to the recent changes in Florida law as a result of the passage of Senate Bill five, AAAPG’s first major legislation success.

He and another caller who claimed to be a guardian as well were bemoaning the fact that legislation is making it harder for them to be guardians. There were complaints about all of the safeguards that were being put in place, paperwork that had to be submitted the amount of work involved, the fact that some guardians only get paid twice a year and that being a guardian was becoming much less desirable as a business option. I was not sympathetic.

But this started me thinking. If guardians aren’t happy with the guardianship enterprise who is?

It is certainly not families of the victims of guardianship whose suffering and plight we have documented for years.

Apparently it’s not the judges either. Probate judges constantly complain that they are overworked understaffed and under paid. They claim that their workload is onerous and impossible for anyone to perform well. They are constantly telling the legislature that they need more money or they can’t do their job right. They bemoan the fact that they don’t have resources adequate to discipline and monitor the very guardians they appoint.

It’s certainly not the legislature. The recent passage into law Senate Bill Five (SB5), our first major guardianship reform effort, clearly indicates the legislature’s displeasure with the current system of guardianship and state of Florida and recognizes that massive reforms are needed.

So who is actually the happiest with guardianship?

The one group that profits most from guardianship is the legal profession.

While downstream stakeholders of the system including but not limited to accountants, facilities, physicians, pharmacies, hospitals, real estate agents, appraisers, antique dealers, home health agencies and the like make significant amounts of money from downstream referrals from guardians for the so-called care of their wards, some of them actually do perform some type of service that might actually benefit the Ward though most don’t.

But when it comes to the legal profession, even though the leadership in the Florida Bar Association readily admits there are severe problems with lawyers in guardianship, the fees generated by and drained from estates by the small army of lawyers that inject themselves into guardianship and estate matters generate massive amounts of money from the pain and suffering of others. No other group organization or business does less for more in guardianship. Staged Litigation by the pound, the ability to repeatedly and unendingly lie without consequences, guarantee of payment of any level of outrageous number of over-billed double billed and fraudulently billed hours and the ability to rake in even more ill-gotten gains from victims’ families for themselves and other attorneys practicing in probate are tailor-made conditions for fraud abuse and exploitation by lawyers in probate.

There is no one to complain to about lawyers. The bar complaint process is run by lawyers and that process is designed to protect lawyers not to discipline them. In the past 10 years there has not been a single disciplinary action taken against members of the elder law section or the RPPTL section of the Florida bar, despite untold numbers of complaints.

Lawyers make up all the rules for lawyers as well as judges in the probate rules committee. It has proven impossible for advocates to make any impact on the probate rules committee and the way it conducts its secret business.

Complaining about judges is essentially a waste of time. The judicial qualifications committee is essentially a group of lawyers who are independent of any discipline or oversight and whose track record show that unless a judge commit some incredibly egregious act the likelihood of them being given any more than a very light slap on the wrist is essentially zero.

So let’s call it like it is. While the number of guardians in the state has increased dramatically to around 1000 and the number of professional guardians has increased from about 23 and 2003 to 460 today, and the number of guardianships overall appears to increase by about 15% year-over-year, the number of lawyers in the elder law section and RPPTL section appears to have only increased slightly. In other words same group of lawyers who have been involved in protecting abusive guardians and guardianships remains fairly stable, insulated and unimpeded while there has been a dramatic increase in the number of their potential clients (guardians) at a steady increase in the number of cases (guardianships) available for them to litigate. No wonder the like guardianship!!

Legal abuse and for-profit guardianship is not and never was a secret. Despite protestations to the contrary the legislature has known about this for years but only recently saw the need to take action. The Bar Association and in particular the governing organization that controls every lawyer and judge and state of Florida, the Supreme Court of the state of Florida, is and have been well aware of what their lawyers are doing. The blame for guardianship abuse lays squarely at the door of the Supreme Court state of Florida and its chief justice. The abject failure of the Supreme Court as well as it Office of Courts Administration to take responsibility for the abuses their members routinely inflict on innocent and vulnerable elders is reprehensible and inexcusable.

Sam J Sugar
June 1, 2015

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