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Florida tried to fix guardianship system. Rebecca Fierle case reveals it's still broken, critics say
Orlando Sentinel - 8/8/2019
Aug. 8--When Florida lawmakers reformed guardianship rules in 2016 -- vowing to protect the state's most vulnerable residents from what one legislator called "cockroaches" who find gaps in the law -- advocates for the elderly and intellectually disabled celebrated.
"We will not tolerate the exploitation of Floridians in the guardianship system that was established to help them," said Carol Berkowitz, who became executive director of the state's revamped guardianship watchdog agency, the Office of Public and Professional Guardians.
But three years later, Berkowitz is out, discipline of guardians has been minimal, and judges say they lack the time and staff to properly monitor the increasing number of guardianship cases as the state's disproportionately elderly population continues to grow.
Even those who have worked within the system say there should be more oversight, enforcement power and transparency and that changes are needed both at OPPG and within the judicial system.
"If you know that there's a cop around the corner with a radar gun, you are less likely to speed," said recently retired Ninth Judicial Circuit Court Judge Jose Rodriguez, who ran the guardianship division there for three years. "We don't have a radar gun, let alone a cop."
OPPG, the watchdog agency, now operates with a staff of just four employees. Among their duties: screen applications for the state's registry of some 550 professional guardians, monitor the state's contracts with 17 public guardian offices throughout the state that serve the indigent, and record and sort through all complaints made to the statewide guardianship hotline.
Last fall, the OPPG requested an additional $97,500 -- a 65 percent increase -- to cover a growing number of investigations of guardians statewide. Gov. Ron DeSantis included the money is his recommended budget; the Legislature rejected it.
And though the office has referred more than 760 complaints to investigators in the past two years, a state spokeswoman said, only one resulted in the guardian being removed from the state registry.
The agency's annual report filed for 2018 says there were "more than 140 legally sufficient complaints" against professional guardians -- only one of which resulted in the office requesting that the guardian's registration be revoked. Another 26 "supported the issuance of a letter of concern."
"When the reforms passed, we were elated in the beginning," said Dr. Sam Sugar, a South Florida internal medicine specialist turned activist. "We were celebrating. But it turns out that the office is severely underfunded."
The latest outrage -- over Orlando professional guardian Rebecca Fierle, accused of routinely filing do-not-resuscitate orders for clients, sometimes against their wishes -- already has prompted Florida Gov. Ron DeSantis to launch a "vigorous" investigation of OPPG.
And on Wednesday, a bipartisan group of federal lawmakers, including U.S. Rep. Darren Soto, D-Kissimmee, introduced the Guardianship Accountability Act to stop what congressman and former Florida governor Charlie Crist called "legal kidnapping" by "unscrupulous people gaming a broken system."
The act would strengthen protections for the 1.3 million Americans, mostly seniors and people with disabilities, currently under the care of guardians, the lawmakers said.
Soto and Crist both pointed to the case of 75-year-old Navy veteran Steven Stryker of Cocoa, whose daughter complained to officials that Fierle refused to remove a do-not-resuscitate order for her father despite his expressed wish to live. By the time Kim Stryker's complaint was investigated, though, it was too late.
The elder Stryker died in a Tampa hospital May 13. Medical staff reported they couldn't perform life-saving procedures because of the DNR order.
Fierle is now the subject of a criminal investigation, and advocates for the elderly are left wondering how one guardian who listed no employees was able to continue being appointed to so many cases -- up to 168 of them in 10 Florida counties -- at the same time.
"Florida has got pretty good laws on the books now, but enforcement is a problem," said Elaine Renoire, co-founder of the National Association to Stop Guardian Abuse, a nonprofit advocacy group founded in 2008. "It's up to the courts to monitor. It's hard to believe they wouldn't catch a pattern of [someone] being appointed over and over and over. Or so you would think."
Guardians are appointed by courts when a person is ruled incapable of making critical decisions to manage their health care, financial matters or day-to-day affairs. That person becomes a ward of the state; the guardian is supposed to protect the ward.
All but the harshest critics say most guardians do good, even noble, work at a difficult job. But because guardians are often paid through the ward's assets and because they essentially take control of the ward's life -- including where the ward lives and even who is allowed to visit -- there's also enormous potential for harm.
"My aunt was a victim of what I would consider to be elder abuse at the hands of her court-appointed guardian," said Cindy Frongello of Edgewood. "After I filed a complaint about the facility my aunt was placed in, the guardian cut off my visitation. I wasn't even allowed to see her."
For courts overseeing guardianship cases, though, ferreting out the bad guardians is no simple task, Rodriguez said.
"One of the [problems] in the judiciary is that everything is measured in how fast you can move the case," he said. "If you stop to take the time you need on one case, what winds up happening is that pushes back all of the other cases. It just makes it a mountain of work."
And in Orange County, unlike every other county in the state, the clerk of the courts and the comptroller are separate offices that don't share staff. The former is in charge of maintaining records, making sure reports and documents are filed properly and flagging judges when something looks suspicious. But they don't do the in-depth financial audits that the comptroller's staff does, and the comptroller's staff doesn't have access to court records.
That, Rodriguez said, can create problems.
In contrast, in Palm Beach County, which opened the nation's first guardianship fraud hotline in 2011, officials have since investigated nearly 2,000 guardianship cases, identifying more than $7.3 million in unsubstantiated disbursements and missing assets.
Sharon Bock, Palm Beach County's clerk of courts and comptroller, said she started making reforms after a scandal there in which a guardian was accused of draining the multimillion-dollar inheritance of a young ward.
"I began a study on who was monitoring guardians ... and the answer was no one," Bock said. "Up until that point, once the court appointed the guardian, no one was really responsible in the entire state for monitoring what that guardian was doing."
Bock launched the hotline, created a special investigative unit and beefed up audits of guardianship cases, allowing her team to subpoena bank records and visit the wards themselves -- all at a time when the state's wave of baby boomers began turning 65 in record numbers. Then she turned her attention to the statewide issues.
Bock and Sugar, one of guardianship's biggest critics, helped legislators rewrite the state's guardianship laws in 2015 and 2016, and Bock arranged to help the state's revamped Office of Public and Professional Guardians investigate complaints through a statewide alliance of inspectors general employed by clerks offices.
Despite that, Richard Prudom, the head of the Florida Department of Elder Affairs, which oversees the OPPG, said the Fierle case highlighted a "significant" backlog of more than 80 uninvestigated complaints and that he asked Berkowitz, the former OPPG chief, to resign July 12. Berkowitz has not responded to numerous requests for comment.
"I hope something changes. And I hope I live to see it change," said 82-year-old Jacquelyn Warner of Winter Park, who said she watched in horror as her best friend of 60 years was placed in guardianship and moved from one facility to the next until she ended up in a "hovel" of an assisted living facility where the friend suffered repeated falls.
The guardian, Warner said, went through $600,000 in her friend's assets and then ignored the woman. Warner filed a complaint with OPPG in February.
"My friend was finally taken to the hospital, and when I went to see her, she had a gash over her eye and she was all bruised up," Warner said. "The next morning I got another call from the hospital, and I knew what it was. [My friend] had died."
That was April 11. On Aug. 1, Warner received a letter from the office, saying OPPG was "unable to substantiate the allegations" but that Warner may want to appeal to the court or hire an attorney herself to contest the guardianship.
It was signed by Secretary Prudom.
"It's a little late," Warner said.
Critics say more auditors are needed for the courts, and that family members should have a greater voice.
"The guardian has an attorney; the ward doesn't. So the ward doesn't have any opportunity to present evidence," Sugar said. "They can't do anything because they no longer exist in the law. The only one who could intervene is a family lawyer -- and the irony is that the guardian's attorney is paid for by the estate, but the family attorney isn't. It doesn't make any sense."
Sugar wants to see a major overhaul as well as more criminal prosecution of guardians who break the law.
Paula Burke, a registered nurse and former guardian who lives in Seminole County, said Florida's guardian standards need to be raised.
"They don't require a high school diploma. They don't even require a GED," she said. "The statute doesn't even have a minimum educational level. It requires a 40-hour course and completing an exam and then completing continuing education units every two years. That's it. And they're managing people's money. They're making critical health-care decisions. Absolutely more should be required."
But she also said that, at least in the Fierle cases, there are other hard questions to ask.
"Where were the doctors on those cases [with do not resuscitate orders]?" she said. "Where was the hospital's risk-management team? And what about the judge's responsibility to make sure she could handle all the cases she was being appointed to? If there's blame, let's put it in the right places."
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