legislation

2015 Guardianship Law Changes

Guardianship law changed significantly in 2015.  I’m going to discuss the biggest changes in this blog post, but I intend to cover all of the changes in the coming weeks in future posts.

One of the most important guardianship law changes involves F.S. 744.3031 which now requires notice of the filing of a petition for appointment of an emergency temporary guardian and any hearing thereon be served on an alleged incapacitated person, and the alleged incapacitated person’s attorney, at least 24 hours prior to commencement of the hearing unless the petitioner can demonstrate that substantial harm to the alleged incapacitated person would occur if notice was given.

I have grave reservations about this change. All too often an elderly incapacitated person is being exploited by someone he or she trusts. Giving notice enables the exploiter to make further harmful financial maneuvers before the court intervenes. While emergency temporary guardianship may be abused in a fraction of all cases, emergency guardians are subject to court scrutiny so the chance of abuse by an emergency guardian is slim, compared to the harm of no scrutiny of an exploiter.

Another change involves whether Powers of Attorney are suspended upon the filing of the guardianship. Previously, filing the guardianship petition suspended the power of a power of attorney. The change to the statute provides that the power of an agent under power of attorney is not suspended if the agent is the parent, spouse, child or grandchild of the principal (“relative agent”). The power of such agent to act on behalf of the principal may only be suspended by the court pursuant to a request by verified motion.

The problem with this change to the law is that “relative agents” are often the ones the court needs to be concerned about with respect to exploitation. While many family members acting in a fiduciary capacity have only the best of intentions, the cases that wind up in guardianship court often have family members who perceive their relative’s money to be their own piggy bank when acting as fiduciaries. Whether a person is a “relative agent” should have no bearing on whether a power of attorney should be suspended in guardianship.

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