Current State of Guardianship in Florida

In 2014, Florida surpassed New York as the third most populous state. As the population continues to grow in the Sunshine State, Florida's courts will continue to feel the pressures associated with increased population and service expectations. In line with those changes, the number of guardianship cases filed in Florida has steadily grown over the last five years and is projected to increase in the coming years.

Additionally, the US Census Bureau relates that the population of our nation and state is aging at an unprecedented rate. The Florida Office of Economic and Demographic Research reports that over 17 percent or nearly 3.5 million Floridians are aged 65 and over. This age group is forecast to represent 24.5 percent of Florida's population in 2030. Over the next two decades, Florida's older population (age 60 and older) will account for most of Florida's population growth, representing over 55 percent of the gains.

Further, adults of any age may become incapacitated and require the appointment of a guardian on either a permanent or temporary basis.

While Florida has made some advancements in guardianship processes, continuous focus and improved practices are necessary to appropriately meet the needs of persons requiring decision-making assistance. Key statewide guardianship issues that have been identified are:

  • exploitation of persons under guardianship, guardian advocacy, and powers of attorney;
  • education of persons under guardianship and others on the restoration of rights;
  • education of young people, their parents, and teachers on how to better prepare for assuming adult rights as well as how to match less restrictive decision-making alternatives to the needs of the person rather than seeking guardianship;
  • review of Florida's guardianship statute as a whole;
  • improvement of the judicial process; and
  • data collection related to guardianship and guardian advocacy.

Various entities have begun unilateral efforts to address Florida's problems listed above. For instance, State legislation in 2015 and 2016 expanded the state's regulation and oversight of public and private guardians and provided measures to curb abuses in the guardianship system. Additionally, the authority of Florida clerks was expanded to allow greater investigative authority to help ensure that annual plan reviews specifically target fraud and financial exploitation. The Office of Public and Professional Guardianship is currently working to establish standards of practice, disciplinary guidelines, and credit investigation procedures for public and professional guardians. And, Florida's Developmental Disabilities Council has funded several projects related to guardianship, alternatives to guardianship, and developing a person's abilities.

Moreover, a group of members of the Real Property, Probate and Trust Law (RPPTL) Section of The Florida Bar have been meeting to consider a rewrite of Florida's current guardianship statute (Chapter 744, F.S.). A significant period has lapsed since this statute was reviewed in totality, and a thorough review may help assure the best outcome for Floridians in need of this type of decision-making assistance.

Also, recognizing the critical need to create compatible technology infrastructures so that the courts, clerks, and other justice system partners can exchange data, the Palm Beach Clerk's Office has developed a pilot database of key guardianship elements and plans to collect those elements for all open guardianship cases within their county.

In October 2016, Florida's Chief Justice established the Guardianship Workgroup under the Judicial Management Council with a goal of improving accountability to better protect vulnerable people - children, adults with developmental and mental disabilities, and the elderly. The work group examined judicial procedures and best practices pertaining to guardianship to ensure that courts are best protecting the person, property, and rights of individuals who have been judged to be incapacitated and persons who may have diminished capacity to function independently. The Supreme Court's Guardianship Workgroup, which included county and circuit judges, attorneys, the Office of Public and Professional Guardians, and a public and professional guardian, issued its final report in June 2018.

With an eye toward Florida's aging population, the Florida Association of Family and Conciliation Courts convened a taskforce to explore dispute resolution options for families in high conflict cases involving issues related to the care and needs safety of elders. The taskforce, co-chaired by Fifth Judicial Circuit Judge Michelle Morley, included representatives from the Florida Office of the Attorney General, The Elder Section of The Florida Bar, Florida Legal Services, Florida Psychological Association, Florida DCF Adult Protective Services Division, Florida State Guardianship Office, the Florida Department of Elder Affairs, Office of Public and Professional Guardians, and Stetson's College of Law Center for Excellence in Elder Law to name only a few. They recommended a model of dispute resolution called eldercaring coordination that is similar to the parenting coordination model already in use in Florida. The Florida Task Force worked collaboratively with the Association for Conflict Resolution Task Force, composed of twenty US/Canadian organizations, to develop Guidelines for Eldercaring Coordination. The goal of eldercaring coordination is to protect the health and safety of elder loved ones while preserving to the extent possible, the autonomy of the elder loved one despite internal family conflict. Florida is among the first piloting this innovative and humane way to address elders in the midst of family conflict as part of the Elder Justice Initiative on Eldercaring Coordination being studied by independent researchers from Virginia Tech University to enhance the process as it develops.

Additionally, the Model Approaches Grant administered by the Florida Department of Elder Affairs is working to promote guardianship reform. This grant also engages representatives from the Area Agencies on Aging, Aging and Disability Resource Centers, Adult Protective Services, The Florida Bar, the Supreme Court, and the Office of Public and Professional Guardians. Its purpose is to develop a well-integrated and sustainable system of high quality, accessible, and targeted legal services for Florida's most vulnerable seniors, particularly victims of elder abuse.

Florida WINGS was created to systematically address the guardianship concerns identified above. This initiative will coordinate with key representatives from the various stakeholder groups to ensure that efforts are not duplicated and that collective impact is preserved. The need to blend and braid the knowledge, expertise, and resources of all stakeholders in Florida is a common thread that can be woven through each area of concern. Florida's current climate presents a perfect opportunity for a Florida WINGS to flourish.