The shifting landscape of guardianship law: three consecutive years of changes.

• Author: Nguyen, Hung V.
• Position: Florida

Members of The Florida Bar Real Property, Probate and Trust Law Section's (RPPTL) Guardianship, Power of Attorney and Advance Directives Committee are keenly aware that there have been major changes to Florida's guardianship laws in the last several years. The political climate of the past few years has been decidedly against guardianships and, in particular, professional guardians, due to perceived abuses by them. The current political climate is due in part to hearings held before the Florida Legislature during the 2014 session in which organized members of the public testified about the horrors of guardianships. While some of the horror stories came from disgruntled family members unhappy with the results of their particular guardianship litigation, others made legitimate points regarding the need to improve the system.

As a result of these hearings and lobbying efforts, the Florida Legislature sprang into action and made substantial changes to F.S. Ch. 744 (also known as the Florida Guardianship Law or the Guardianship Code) in 2014, 2015, and 2016. The triennial reshaping of Florida's Guardianship Code is something every practitioner in this area should be aware. This article briefly touches on some of the major changes during that period.

2014 Legislation

On June 13, 2014, Gov. Rick Scott signed House Bill 635 into law. H.B. 635 revises Florida's guardianship statutes to provide increased protection for wards in guardianship proceed ings by making the screening process for proposed guardians more stringent and by providing stricter scrutiny of a guardian's control over a ward's assets.

Prior to the enactment of H.B. 635, under F.S. [section] 744.3135, the court had discretion over whether to require nonprofessional guardians to submit to a credit history investigation and level-two background screening. H.B. 635 amends F.S. [section] 744.3135(1) to require that guardians, excluding corporate guardians, submit to these background checks. The background check may be waived upon petition of an interested person or upon the court's own motion. (1)

In continuing the theme to have better oversight over guardians, H.B. 635 amends F.S. [section][section] 943.0585 and 943.059, to require individuals petitioning the court for appointment as guardian to disclose criminal records that were previously expunged or sealed. This heightened scrutiny enables the court to obtain more information on a would-be guardian's application to determine the proposed guardian's fitness for appointment.

H.B. 635 also provides significant additional safeguards and oversight for guardians following appointment. Prior to H.B. 635, the clerk's office lacked authority to conduct in-depth reviews of guardianship reports and the ability to obtain certain documentation necessary to fully review guardianship cases. With the amendments in H.B. 635, pushed in part by the clerks, the clerk's office now has the authority and duty to conduct more in-depth reviews of guardianship assets when they believe further review is appropriate. (2)

H.B. 635 also significantly expands the scope of the clerk's authority to obtain discovery in guardianship cases. The clerk may now request and review documents and records that reasonably impact guardianship assets, which allows the clerk to more closely scrutinize guardianship reports. (3) If, upon the clerk's request for additional documents, the guardian fails to provide the documents, the clerk may request that the court issue an order to show cause to the guardian. (4) Additionally, the clerk is now empowered to issue subpoenas under a procedure similar to Fla. R. Civ. P. 1.351. (5) These powers were intensely negotiated between the various stakeholders prior to the introduction of H.B. 635 by the legislature, and the result was a compromise. There were concerns that the clerk's new powers to issue subpoenas created conflicts by making clerks parties to guardianship proceedings. H.B. 635 also provides additional penalties for guardians who fail to comply with the auditing process, including removal. (6)

2015 Legislation

Almost one year after H.B. 635 was enacted, Gov. Scott signed H.B. 5 into law. H.B. 5 amends or adds at least 19 statutes impacting guardianships, including providing additional protections for wards in guardianship proceedings and additional checks on the powers of guardians. The political climate that resulted in H.B. 635 was in full swing during the 2015 legislative session resulting in H.B. 5.

Prior to the enactment of H.B. 5, once a petition to determine incapacity was filed, any power of attorney executed by an alleged incapacitated person (AIP) was automatically suspended during the pendency of the incapacity proceeding. (7) The reason for this automatic suspension was to halt the ability of an agent to victimize the principal/AIP. (8) The automatic suspension of authority became a tool used by interested parties to prohibit agents from taking further action on behalf of the principal/AIP, and it was argued this led to...