When the court appoints a guardian, they bestow the guardian with a significant responsibility to their ward. The law expects all guardians to prioritize the ward’s best interests over other concerns. Unfortunately, not all guardians make the right decisions. People can certainly make honest mistakes. But in some cases, agents actively deceive, exploit, harass, or intimidate the incapacitated person. Guardians who steal, neglect, or assault their ward could face criminal charges.
If you suspect guardianship abuse, it’s crucial to speak with an experienced guardianship lawyer in Jacksonville right away. At Beller & Bustamante, P.L., we have over 40 years of combined experience assisting clients with a wide variety of legal matters, including elder abuse and guardianship abuse cases.
What Is a Guardianship?
In certain situations, the court appoints someone to act as another party’s guardian. The guardian will be responsible for making legal decisions for someone else. Courts refer to the person needing a guardian as a ward. The ward is unable to make their own decisions because they are a child or a judge has otherwise deemed them incompetent.
Situations where a court may grant a guardianship include the need to look after a minor (someone under 18), an adult who has become incapacitated, or an adult who has mental disabilities. The need for a guardian can arise suddenly or be necessary due to ongoing health and behavioral issues.
Florida allows any adult to petition the court to become a guardian by having another party deemed incapacitated. The potential guardian does not have to be a blood relative. If someone is trying to scam the court by filing a guardian petition in bad faith, the court might require the petitioner to pay attorney’s fees and all court costs, which can be significant.
There are two different types of guardianship for a ward who is over 18. The first is guardianship of the person. When someone is a guardian of the person, they will make decisions that affect personal and legal matters, such as where the ward will live, what their social schedule looks like, their medical care, travel, etc.
When someone is a guardian over property, they are responsible for the ward’s assets. Assets include items like bank accounts, real property, stocks, and other personal property. The guardian may also have to step in and handle lawsuits that involve the ward. The court has the discretion to award both guardianship of a person and property to the same person if they choose. But there is no legal requirement that the same guardian serves as both.
Who Can Be a Guardian?
To be a guardian in Florida, you only need to be “fit and qualified” to act as a guardian. The court can decide what they declare to be fit and qualified. The law requires that the court must consider relatives by blood or marriage. When deciding who to appoint as a guardian, the courts look at the following factors:
- What the relationship is between the ward and the guardian;
- What the ward’s wishes are, provided they expressed any;
- The guardian’s financial ability and educational level;
- The person’s fitness to serve as a guardian; and
- The potential guardian’s character and exhibited level of responsibility.
The court can consider other factors they deem relevant. Every situation is different, so there are no two guardianship cases that are exactly alike.
What Is Guardianship Abuse?
A guardian has a fiduciary duty to their ward. While many guardians handle their position as expected, some guardians abuse their position of authority by taking advantage of the ward. Guardians may abuse the ward in several different ways, including physical abuse, financial exploitation, neglect, or psychological abuse. Abuse is not limited to certain types of guardians either. The abuser could be a family member, a professional from an agency, or another non-professional appointed guardian.
The Sunshine State attracts a high number of retirees. Therefore, guardianship abuse is a problem in Florida. Unfortunately, Florida has relaxed rules regarding who can file a petition to have someone placed under guardianship. This results in people ending up in the system that should never have a guardian appointed in the first place. Increased media attention is starting to shed light on how problematic guardianship abuse is in Florida.
In 2017, a court wrongfully placed a 70-year-old Florida woman under guardianship after she was involved in a car accident while grieving her son’s death. A court slapped the initial court-appointed guardian with criminal charges after a man died in her care. The new guardian refused to help this elderly woman restore her rights. So the woman took to social media using a hidden cell phone her son brought her. After placing an ad on Facebook, a guardian reform advocate got in touch. The advocate set the older woman up with a legal practitioner who helped her restore her rights.
However, this poor woman already suffered irreversible damage. The guardian had transferred the woman to a nursing home and sold her home to that facility. Thereby, she lost all her personal belongings including valuable original oil paintings.
Consequences of Guardianship Abuse
Guardianship abuse and its consequences are far-reaching for victims. They often lose everything, including their life savings and their home, after being forced into an institution such as a nursing home. This process can lead to health problems and severe depression. The situation is worse when a family member perpetrates the abuse and thereby destroys the family relationship permanently.
The perpetrators could face criminal and civil charges if they are caught. In the case of the 70-year-old woman wrongfully placed under guardianship, the disgraced guardian was arrested after she issued a “do not resuscitate” order without consent for another one of her wards. The ward under her care had a feeding tube but expressed his wishes to continue living. The medical professionals who examined him believed he was capable of making his own end-of-life decisions. The guardian ordered the man’s feeding tube capped, despite doctors saying this would more than likely cause him to die.
Guardian Abuse and the COVID-19 Pandemic
Guardian abuse is a growing problem in the United States. The National Association to Stop Guardian Abuse works to stop guardianship abuse and raise awareness. They note that guardianship abuse has increased during the pandemic. This is due to the lack of COVID-19 outbreak information from various nursing homes, as well as the state’s court process for approving guardian appointments.
During the stay-at-home orders, most courts were open for emergency petitions through online or phone hearings. Unfortunately, this was challenging as many vulnerable people had trouble attending. Without proper representation, they were at risk of being assigned a temporary guardian. Once you are in the system, it’s hard to get out. A court-appointed guardian might have the authority to remove a ward from their home and put them in a nursing facility without any regard to the status of COVID-19 infections at the home.
With a handful of states enacting liability protections making it harder to sue nursing homes for a family member’s COVID-19 related death, guardian abuse continues to be a problem.
Contact a Guardianship Lawyer in Jacksonville
Choosing to have a family member placed under guardianship is a tough decision. Family and friends may have conflicting opinions on who should be involved and what decisions should be made. This process can lead to significant conflicts between loved ones. Don’t let a possible guardianship tear your family apart. Let our skilled guardianship attorneys in Jacksonville help you through this difficult time.
Don’t entrust your guardianship case to just anyone. You need someone who will protect you and your family’s rights, whether you need to set up a new guardianship or you suspect abuse in an existing one. With over 40 years of combined experience, our legal team is here to assist. Contact Beller & Bustamante, P.L., today to schedule a consultation.