by Guest Blogger
Kevin J. Wimmer Florida Guardianship and Probate Attorney
Mark Twain, a great storyteller, once said: “Never let the truth get in the way of a good story.”
Funny quote. However, in our age of conspiracy theories and the widespread dissemination of misinformation, it’s become important to illustrate how different a story can be from the truth. Or, in other words, separating fact from fiction.
I Care a Lot currently streaming on Netflix, is a highly-entertaining, and now award-winning film. The lead character of the film is a corrupt, predatory professional guardian, anti-heroine, named Marla Grayson, in the spirit of Tony Soprano or Walter White. The bad character you are rooting for. She exploits elderly and vulnerable people she’s supposed to be taking care of, but does it with style!
Although a well-written story that takes some of its inspiration from real-life events (the true-life basis of which occurred in Nevada), the events as portrayed would (thankfully) be impossible to occur in the state of Florida due to a number of laws and procedural protections.
Here are just a few of the reasons the fictional events could never happen in Florida from a legal perspective:
All people subject to a guardianship proceeding in Florida MUST have an attorney appointed for them (F.S. 744.331) unlike the facts in the movie I Care a Lot.
The court-appointed attorney must represent the expressed wishes of the alleged incapacitated person. In I Care A Lot, the Ward (played by Dianne Wiest), does not have an attorney to represent her, and further, is not even present at the hearing determining her incapacity. Relatedly, the professional guardian also must have an attorney. In the film, Ms. Grayson represents herself and proceeds to make inaccurate claims about the Ward’s condition.
In the film portrayal, in one of the more heart-breaking scenes, as she’s being removed from her home, the Ward was not aware there was even a court proceeding which determined her incapacitated. In truth, pursuant to Florida Probate Rules, prior to any hearing, a copy of the petition to determine incapacity and a notice of filing the petition MUST be served on the alleged incapacitated person, and which also must be read to them, (Fla.Prob.R. 5.550(b)(2)), and must be served on the court-appointed counsel, and all next-of-kin (Fla.Prob.R. 5.550(b)(3)). There would be no surprises involved.
Unlike Dianne Wiest’s character in I Care a Lot, the alleged incapacitated person is required to appear at the hearing pursuant to F.S. 744.331. (5)(b).
This appearance can be waived by either the alleged incapacitated person or the person’s attorney. Therefore, in Florida, the Diane Wiest character would have been able to express herself to the court, a right not afforded the character in the film.
Next, in the film, the portrayal of the determination of the Ward’s incapacity is made solely by a “report” filed by her personal physician, with no cross-examination, no other evidence, and is therefore accepted by the judge completely at face-value.
It simply doesn’t work that way. In Florida, upon the filing of a petition to determine incapacity, a three-member examining committee is appointed to examine the person and report their findings to the Court (F.S. 744.331(3)). One of the three members MUST be a psychiatrist or physician, and all must have a specialized background in mental health or gerontology. If a majority of the examining committee members conclude that the alleged incapacitated person is NOT incapacitated, in any respect, the Court must dismiss the petition to determine incapacity. In the events portrayed in the movie, the Ward would never have been determined incapacitated by an independent examining committee.
Next, I Care a Lot portrays the predatory professional guardian as having several dozen Wards under her care, with the court apparently unaware of the exact amount of matters she handles.
With recent changes to Florida’s guardianship laws, pursuant to F.S. 744.3125, in the application for appointment of guardian, the guardian must report all the wards the guardian is currently serving on behalf of statewide. If a professional guardian has too many cases, a judge will likely not allow the appointment.
Finally, when the professional guardian becomes the guardian for Roman Lunyov (Peter Dinklage), the courts would not be so quick to appoint a guardian, to say the least.
You may recall where Marla Grayson incapacitates Lunyov and then becomes his guardian. In Florida, when an incapacitated person needs someone to make medical decisions, this procedure is called a health care proxy. With the Florida Proxy statute, the hospital would actually hire private investigators to find Roman’s family or someone to make his medical decisions. A guardianship court is not needed for this procedure and when Roman wakes up, the proxy part would terminate as he would now have capacity to make his own health care decisions, once again.
Of course, there’s smaller details that only a stickler would bring up (okay, like there not being a bank representative present at the initial inventory of the safe deposit box! F.S. 744.365(4)(a): “The initial opening of any safe-deposit box of the ward must be conducted in the presence of an employee of the institution where the box is located”).
Although we all love good stories, we all live in the real world. While Mark Twain could twist the truth to serve a story; Samuel Clemens, who was a journalist, could only use the facts. And the facts regarding I Care A Lot are, although a terrific movie, well worth your time, it’s a story. Not a fact, and people in Florida should not worry about guardianships taking your rights away so easily.
And, of course, guardianships can be helpful and necessary in the right situation in order to protect an incapacitated person from their own bad decisions or the influence of bad actors.