Guardianship Realities

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Published by AuthorHouse 08/14/2019

ISBN: 978-1-7283-2265-0 (sc)

ISBN: 978-1-7283-2264-3 (e)

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PREAMBLE

The author’s personal experiences as Eldercare Guardian, and as Guardian ad Litem volunteers for Children, is the foundation of this book. The events and cases described in this work are true. To assure anonymity, individuals discussed are composites. Names of people, time and places were changed.

This work includes Best Interests of the Children, (published in 2014, available online). It also depends on the Florida Professional Training Manual (not copyrighted). The original text from both works is reduced, updated and modified to fit my latest book objectives.

Guardianship today is perhaps 85% about legal and financial issues, and only about 15% concerns the actual health and welfare of the person. The human element must become the essential focus for all, however.

The author affirms that we are not in any way providing any legal advice.

Some media critics have disparaged guardians as being profit motivated, such as Dr. Sam Sugar’s sensational claims. M. Larson’s book, Guardians, we believe has much more merit. For that reason, we wrote a few pages on Preventing Fraud and Exploitation. Florida’s more recent laws and standards, make it much more difficult to steal from elderly patients. Today, there has to be a conspiracy between the guardian, the attorney, and perhaps the probate court to rip-off patient’s assets. Nevertheless, fraud and exploitation continues to occur nationwide, as reported by Larson.

Readers should realize that bad apples exist in all professions. There are unscrupulous guardians who will exploit the elderly. Nonetheless, most guardians are professionals who really care for their patients, especially indigent persons who desperately need their skills and services. Dedicated guardians also have to respond to urgent calls from facilities and hospitals, late at night, and then rush to provide their professional support.

A profit motive is normal in all healthcare professions. One must realize that guardianship is a business and they have to earn a living. One must ask, what would neglected children and elderly do without guardians? Furthermore, guardians and their attorneys should take on some pro bono cases. The author and his case example contributors have handled dozens and dozens of pro bono case every year, without compensation.

Guardians will be accused of all kinds of crazy stuff. This is especially true when one is advocating for children. It comes with the territory! For that reason, one must avoid situations that can expose them to possible false accusations. Document everything. Use commonsense, which is not too common. Consult your attorney, whenever someone accuses you of anything.

We present a key example of Professional Guardian Fernando, who was wrongly accused of exploitation. After two years, a jury of his peers found him NOT GUILTY. (See Case of Exploitation). Fernando has also contributed many good ideas and important Eldercare case examples for this book

If you are not accused of something, you are probably not doing your job.

We divide this book into two parts—Guardianship of the Children, and Guardianship of the Elderly. We also provide candid viewpoints about what actually takes place in in the real world.

CONTENTS

Preamble

Introduction

Principles & Laws

Natural Law:

History of Guardianship

Purpose of Guardianship

Role of Guardians

Advocate For the Mentally Ill

Developmentally Disabled

Pre-Need Guardian

Emergency Temporary Guardians

Guardian Types

Limited Guardian

Plenary Guardian

Standby Guardians

Successor Guardian

Veteran Guardian

Corporate Guardian

Foreign Guardian

Surrogate Guardian

Co-Guardians

Guardian Qualifications

Training And Education

Guardianship Business

Standards For Guardians

Guardian of the Children

Objectives:

Court Process:

Case Plans

Deaths of Eight Children

Actual Guardian Cases

Snake Oil Case

Clueless Case

Defiant Teen Case

Denialism Case

Mentally Challenged Case

Tough Love Case

Baby Machine Case

Troubled Lake Case

Sociopath Case

Lost In the System Case

Foster Care

Drugs, Sex & Violence

Sexual Abuse

Home Studys

Home Study Reality:

Proposed Guidelines

Case Manager Conflicts.

Caregivers vs. Child Needs.

Referral Services.

Parenting Courses.

Addiction.

Causes of Abuse & Neglect

The Constitution:

Education:

Parenting:

Multi-Culturalism

Culture’s Ten Principles

Immigration:

Eldercare Guardians

Guardianship Differences

Advocacy

Fiduciary Duty

Code of Ethics

Conflicts of Interest

Abuse of Power

Substituted Judgment

Best Interest

Pre-Incapacity Alternatives:

Determining Capacity

Adjudication of Incapacity

Appointing the Guardian

Letters of Guardianship

Guardianship Bonds

Preservation of Rights

Guardian of the Person

Agency Health Care Administration (Ahca)

Managing Healthcare Needs

Healthcare Decisions

Hipaa Rules

Care Plan Meetings

Abuse, Neglect & Exploitation

Abuse

Neglect

Exploitation

Patient Mental Disorders

Disabilities

Baker Act

Patient Rights

Marchman Act

Guardian of Property

Money Management

Voluntary Guardianship

Eldercare Cases

Abandoned Case

Incapacitated Case

Forgotten Case

Family Squabbles Case

Bio-Ethics Cases

Gangrene Case

Birthing Ethical Case

Bio-Ethics Dialogue

Required Reports

Guardian of the Person Reports:

Guardian of the Property Reports:

Abuse & Fraud

Reporting Abuse, Neglect, Exploitation

False Accusations

Estate Planning

Social Security & Medicare

Representative Payee:

Medicare/Medicaid

Trusts Agreements

First-Party, Self-Settled Trusts

Miller Trust.

Pooled Trust.

Third-Party, Self-Settled Trusts

End of Life Planning

Resignation of the Guardian

Termination of the Guardian

Death of the Patient

Guardianship Compensation

Summary & Conclusions

Guardians of Children:

Guardians of the Elderly

Author Perspective

Appendix 1

INTRODUCTION

We believe that this is the only book that combines Guardianship of the Children and Professional Guardianship of the Elderly, in a single publication. Moreover, this documented work consists of the author’s combined experiences, during nearly ten years managing numerous complex cases. This is a book about the "reality of guardianship." It is for educators, legislators, healthcare providers, faith-based institutions, hospital managers, skilled nursing facilities, eldercare attorneys, and especially current and future guardians and healthcare proxies.

This book is a PRIMER for anyone interested in guardianship, healthcare, and/or charitable works with children, after required official training.

In America, nearly four million referrals go out to Child Protection Investigators (CPI), involving about over seven million children, annually. The U.S. is the worst among developed industrial nations, losing an average of 5-to-8 children every day, to parental abuse and neglect.

Over one million citizens currently reside in senior care ALF or SNF facilities, which will double by 2030. Patients and their families pay more than 65% of the cost for senior living facilities. Medicaid, if the patient qualifies, currently pays about 75% for long-term care for poor individuals living in Skilled Nursing Facilities (SNF), or Assisted Living Facilities (ALF).

Nationally, the elderly population grew from 35 million in 2000, to about 46 million in 2019. Significantly, about 10% of all patients represent 65% of all U.S. healthcare costs. (Source: WSJ, Jan 19, 2017). Future healthcare costs, and Assisted Living needs are driven by nearly 80 million Baby Boomers, who represent 70% of U.S. financial assets and over half of all discretionary spending, and most are planning to retire over the next two decades.

Medicaid/CHIP enrollment climbed from 56.4 to 73 million, from 2013 to 2019, respectively, costing about $500 billion, according to Kaiser Family Foundation (WSJ Feb.10th, 2017). Projections are that Medicaid costs, which poor families and elderly citizens depend on for healthcare services, could exceed $750 billion annually by 2020. Medicaid is in danger of collapsing.

Florida is the fourth largest state with over 20 million residents, and elderly population of about five million residents, which will nearly double to ten million by 2030. (Source: Dept. of Elder Affairs). Approximately 2% of the elderly reside in Skilled Nursing Facilities (SNF) and 25% live alone. About 6% have serious mobility and self-care limitations, while nearly 500,000 are probable cases of Alzheimer’s’ disease. The Alzheimer’s Association says, 5.4 million patients nationally have the disease, costing Medicare $160 billion last year, which is likely triple by 2050 as the population ages.

Such statistics make the need for guardianship at all levels essential.

A considerable number of elderly citizens have at least one chronic condition that requires expensive medical care. Many of these individuals have inadequate housing, lack mental capacity to make medical and decisions relating to daily living, have neither family, friends or persons willing or able to assist, nor the resources to provide proper care in their daily lives. Many have not established Advance Directives to specify their wishes in the event of incapacity.

In addition to the rapid growth in the elder population, there remains a need for volunteer guardians for children and other vulnerable persons in similar circumstances. These include brain injuries, developmentally disabled people, and individuals with drug and alcohol addiction or mental illness.

More than seven million people are addicted to opioids—including heroin, fentanyl, and oxycodone (15 million worldwide). Many young parents of children are addicted, and this is the major factor in abuse and neglect of children. Fatal opioid overdoses have risen from 8,200 in 1999, to about 50,000 in 2019, according to the Centers for Disease Control (CDC), making it the leading cause of accidental death. Addiction is clearly a serious epidemic!

Best Interest is the standard used by Guardian ad Litem (GAL) and Court Appointed Special Advocate (CASA) volunteers in choosing a course of advocacy for every child in America, which involves their physical, emotional, psychological, medical needs, and critical family requirements. Eldercare Guardians use Substitute Judgment, Least Restrictive Alternative, and Best Interest standards in their professional work.

Highly relevant texts are in bold italics. Definitions for Guardianship legal, Medical and Technical terms are in Appendix-1.

***

PRINCIPLES & LAWS

Yale Law Professor Arthur Leff expressed the bewilderment of an agnostic culture that yearns for enduring values, in a brilliant lecture delivered at Duke University in 1979 (abridged for this book). The published lecture titled: "Unspeakable Ethics, Unnatural Law" is frequently quoted in law review articles, but it is little known outside the world of legal scholarship. The heart of the problem, according to Professor Leff, is that any normative statement implies the existence of an authoritative evaluator. However, with God out of the picture [in secular society], every human becomes a godlet with as much authority to set standards as any other godlet or combination of godlets. For example, if a human moralist says, Thou shalt not commit adultery, he invites the formal intellectual equivalent of what is known in barrooms and schoolyards as ‘the Grand Sez who?’ Persons who want to commit adultery, can offer the crushing rejoinder: What gives you authority to prescribe what is good for me?

***

NATURAL LAW:

In the philosophic tradition of Thomas Aquinas, Natural Law is distinguished from Divine Law because its commands are accessible to human reason even in the absence of divine revelation. To a (mono) theist like Aquinas, the reality of a moral law was not in question. The question was how much of that law we could know from natural reason (or academic philosophy), and how much we could know only from Scripture or the Church. This two level system of reason and revelation, made it possible for Aquinas to fuse the pre-Christian philosophy of Aristotle with the revelation-based doctrines of the Church. …

The assertion of rights cannot for long be separated from the imposition of duties, however. If we give X a right to do as she wants, and she wants to get an abortion, we must soon face the question of protecting her from Y, who wants to protect the rights of unborn child. If majority opinion in the legislature favors some restrictions upon abortion, and there is no specific language in the Constitution on the subject, then pro-choice forces have to invoke something very much like a natural law duty to get their way. Thou shalt not interfere with a woman’s right to choose abortion; indeed, thou must help to pay for abortions through tax money; more than that, thou shalt not legislate that the woman contemplating abortion must be fully informed about the potential adoptive parents who desperately want to provide a loving home for her unborn child. Sez Who?

The modernist impasse, in other words, does not stymie as long as all we are doing is proclaiming liberties. The problem for modernists is how to justify imposing obligations. The poor have a right to public assistance, of course, but do the more fortunate and productive citizens have a right to refuse to pay when they think the tax burden has become unreasonable? The rights of all citizens must be protected, of course, but who are the citizens? What about infants, the unborn, and undocumented foreigners? Who or what has the authority to tell us whom we ought to admit to the sphere of protection.

***

Most of Leff’s lecture consisted of a review of all the unsuccessful attempts to establish an objective moral order on a foundation of human construction, i.e., to put something else in God’s place as the unevaluated evaluator (emphasis mine)… Every alternative rests ultimately on human authority, because that is what remains when God is removed from the picture. However, human authority always becomes inadequate as soon as people learn to challenge its pretensions. Every system fails the test of The Grand Sez Who.…

***

Criminal tendencies in individuals are reduced by providing education, psychiatric treatment, and economic opportunity. Public education can produce rational, self-controlled citizens, who can govern themselves through liberal political institutions and free markets. Scientific technology can provide abundance and health, and even eventually improve the human species itself by genetic engineering. Above all, we can still know what the good is, however difficult it may be to achieve it. Modernist philosophy teaches that when we lost God, we lost only a projection of the best that was in ourselves; what was real in that projection therefore remains, and only the illusion is gone. …

***

Professor Leff concluded his lecture, as follows: All I can say is this: it looks as if we are all we have. Given what we know about ourselves, and each other, this is an extraordinarily unappetizing prospect; looking around the world, it appears that if all men are brothers, the ruling model is Cain and Abel. Neither reason, nor love, nor even terror, seems to have worked to make us good, and worse than that, there is no reason why anything should. Only if ethics were something unspeakable by us could law be unnatural, and therefore unchallengeable. As things stand now, everything is up for grabs. Nevertheless, napalming babies is bad. Starving the poor is wicked. Buying and selling each other is depraved. Those who stood up and died resisting Hitler, Stalin, Amin, and Pol Pot—and General Custer too—have earned salvation. Those who acquiesced deserve to be damned. There is in the world such a thing as evil. All together now: Sez Who? God help us.

***

What supports society’s Principles and Laws? Are all laws derived from human rationality? Some claim that all laws are derived from Jewish (Old Testament) moral principles. Still others claim they are based on rational laws of governance, such as the Constitution. Similarly, some propose that these principles and laws are not the result of logic or faith at all; they are based on human trial and error, over centuries.

One must ask who created these principles and laws of morality. Where did we get ideas of governance? Who designed the scientific laws that control the universe, and life’s biological DNA codes? Who is the Designer?

The author of believes that the Creator gave us human rights, not the government, who could just as easily change or take away such basic rights. Essentially, there are three levels of laws:

1. Universal Laws: Equations and constants of the universe; Transcendental laws, including the Ten Commandments, and the Golden Rule that governs all Human Persons;

2. Natural Laws: Fundamental Human Rights to Life, Liberty and Property, supported by the Constitution.

3. Civil Laws: Laws that continue to evolve over time, including the American Bill of Rights, and Federal and State laws necessary to maintain a civilized society.

Guardianship and Healthcare civil law refers to individual autonomy, based on human free will, and our right to choose. Civil Law often has credibility issues since Federal or State Statutes can sometimes be considered immoral; for instance, the beginning of life and end-of-life decisions, such as abortion and assisted-suicide. Nevertheless, there has to be a baseline of principles and standards to legitimize guardianship. Without clearly defined ethical boundaries, humanity will become a valueless, uncivilized society.

***

Access to justice means access to good attorneys. Many victims of abuse, neglect and exploitation lack access to the justice system because they cannot afford an attorney. The fact is that court-appointed lawyers are not necessarily the best advocates. Those with money, get more justice, than those without. Moreover, attorneys regularly create guardianship laws, rules and standards, and these attorneys regulate themselves. There are too many laws, rules and standards (ref: WSJ Review & Outlook, March 15, 2017 Florida’s Trial Bar Hurricane.), which is overwhelming many guardians. We believe guardianship should be fundamentally about caring for other persons (the human factor), which mostly involves commonsense.

***

HISTORY OF GUARDIANSHIP

Guardianship (known as Conservators in some states) originated under English Common Law with the acknowledgement by the monarchy that the crown has a duty to care for those subjects, who by virtue of physical or mental incapacity, could not protect their rights or provide for their basic needs. The concept arose out of fear that these individuals might bring harm to themselves or economic loss to families. In the 14th century the doctrine of parens patriae was established; a legal principle from the Latin phrase meaning, parent of the country and the state is regarded as sovereign.¹

Essentially, the government can act to determine what is in the Best Interest of an individual, even if the individual disagrees, based of incapacity or risk of serious property mismanagement. At that time, the Monarch took control of the individual’s property and supported them with the income from the individual’s estate. The primary intent of the original laws was to protect the community by protecting the individual. In spite of this benign conceptual origin, the implementation of the practice of guardianship (or conservatorship) has not always been kind, nor has it always resulted in a better life for the patient. This was evident in the premodern psychiatric institutions and by current publicized stories of abuse, neglect and exploitation of individuals—children and the elderly—who are the most vulnerable among us.

A Guardian, by definition, is a person appointed by the court to act on behalf of the person, their property, or both.² The guardian is empowered by the court to exercise only those rights delegated by the court that affect the person, property, or both.

In Reality, some form of Guardianship exists in every state in America. Most states follow analogous laws and standards, as does Florida.

The concept of a person’s capacity has proven more flexible, and less denigrating than incompetent, and by definition, a person with limited capacity may still maintain some autonomy. The authors prefer to use patient or client instead of ward, for the same reason.

Even under modern guardianship laws and procedures, the process of legal incapacity, by its very nature, tends to be disruptive, intrusive and stressful for all involved. When taken to its extreme, guardianship can strip a person of their independence and limit their freedom. Guardianship is therefore an important tool to intervene in the lives of those most vulnerable in order to care for and protect them from themselves or from others.

American laws include due process protections for patients, including the right to hearings, lawyers and independent evaluations. Due Process – is the administration of justice according to established rules and principles of law; based on the principle that a person may not be deprived of life, liberty or property without appropriate legal procedures and safeguards.

Recent laws also called for greater emphasis on limited or partial guardianships, rather than comprehensive or plenary guardianships, in order to preserve as much of the individual’s autonomy as possible. Unfortunately, even with recent statutory changes enacted to protect patients, the nature of their situation and the lack of adequate oversight render them vulnerable to violations of due process, and basic human rights.

It is important to understand that guardianship is the choice of last resort. It is a process, which must be used sparingly and only in cases where less restrictive means of intervention are not possible. Guardianship, in its best form, can be an act of charity, to protect those most vulnerable in our society. In its worst form, it can become a tool to abuse and/or exploit those individuals the law is designed to protect.

Guardianship in Florida is legislated primarily by Chapter 744 of Florida Statutes, (and other pertinent chapters). All guardians must be familiar with the current statutes in their states, such as New York’s Guardianship Law 801.03.

Guardianship laws can only be changed or amended by the legislator.

***

PURPOSE OF GUARDIANSHIP

Guardianship is necessary when alternative means of protecting vulnerable individuals are not sufficient. Children, especially below the age of reason, need a guardian. If the biological or adopting parent(s) are not available, then foster caregivers are essential.

Guardianship may be required for a number of medical, mental, or developmental conditions that affect the individual’s ability to make life-sustaining decisions and to protect themselves or others they interact with from harm. Existence of a disability or advanced age is not in and of itself, a reason for establishing a guardianship.

Being a guardian is a very challenging responsibility and not to be taken lightly. It is a solemn responsibility to assume control over someone’s personal well-being and financial assets. Guardians are expected to maintain higher standards of professionalism, and must be patient, flexible, efficient, assertive, organized, persistent, and always ethical.

***

ROLE OF GUARDIANS

There are several types of guardians: Public Guardians for indigents— patients with limited financial means, generally supported by Medicaid and Private Guardians primarily for non-indigent patients. Professional Guardian include those who have passed State sponsored test, and at any time rendered services to three or more patients as their guardian. Guardians with only one or two patients, who have passed the forty hour course test, are also qualified guardians.

Public Guardians and Guardian ad Litem for children are considered professionals for purposes of regulation, skills and registration. A family member may be a Private Guardian, but a private guardian need not be a family member. Corporations, Institutions and non-profit organizations may also serve as guardians. Private guardians may be paid for services rendered from the assets of the incapacitated person-the patient (previously known as the ward), or be paid by a third party, such as the state. Professional and non-professional guardians are required to receive at least 40 hours of guardianship training to become a guardian in most states.

The authors prefer to replace ward of the state, with patient or client.

ADVOCATE FOR THE MENTALLY ILL

(Chapter 394, Florida Statutes)

The Florida Mental Health Law, also known as the Baker Act, defines the term guardian advocate for the mentally ill. An Advocate, such as a Guardian ad Litem, known as CASA in some states, is a person appointed by the court to make independent recommendations regarding mental health and medical treatment on behalf of a patient found incompacited to consent to treatment under Mental Health Law.³ With training certification, Professional Guardians may serve as Guardian Advocates under Chapter 394, F.S.

DEVELOPMENTALLY DISABLED

(Chapter 393, Florida Statutes)

The Developmental Disabilities Prevention and Community Services Act defines a guardian advocate for the developmentally disabled. A guardian advocate is a person appointed by the court to represent a person with developmental disabilities who can exercise at least one of the enumerated rights.⁴ This does not include those proceedings discussed above for guardian advocates of the mentally ill. Once this type of guardianship is established under §393.12, F.S. then the guardian advocate’s responsibilities are governed by Chapter 744, F.S.

PRE-NEED GUARDIAN

A pre-need guardian is the person named in a written declaration to serve as guardian in the event of the incapacity of the declarant. The written declaration must reasonably identify the declarant and pre-need guardian. The declarant in the presence of at least two attesting witnesses must sign it. The declaration filed with the Clerk of the Court, so that when a petition for incapacity is requested, the clerk produces the pre-need declaration for the court file. Clerk of the Court is an independent constitutional officer who is elected in each county to audit guardian reports, processes and maintain guardianship documentation (among other responsibilities).

Pre-Need Guardians for minors follow the same procedures as above, except that both parents must agree to the guardianship, and the parents must file the declaration with the Clerk of the Court. When a petition for incapacity of the last surviving parent or the appointment of a guardian upon the death of the last surviving parent is filed, the clerk produces the declaration. The court is not bound to appoint the pre-need guardian, if they are unqualified to serve. Parents are natural guardians of their biological and adopted children. If one parent dies, the survivor is the sole natural guardian. This right continues even if the surviving parent remarries. If the marriage between the parents is dissolved, the parent to whom the custody of the child is awarded becomes the natural guardian. If the parents are given joint custody, then both continue as natural guardians. If the marriage is dissolved and neither the mother nor the father is given custody of the child, neither acts as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child, and is entitled to primary residential care and custody of the child, unless a court orders otherwise.⁵ The natural guardian relationship ends when the child attains age 18 (16 years if emancipated, meaning they are able to care for themselves).

EMERGENCY TEMPORARY GUARDIANS

After a petition for determination of incapacity is filed, but before appointing a permanent guardian, a court may appoint an Emergency Temporary Guardian (ETG) for a person, the property, or both, giving the ETG authority to perform specifically delineated duties to deal with the emergency. The court must specifically find that unless immediate action is taken, the alleged incapacitated person (AIP) is in imminent danger of being physically or mentally harmed, or the AIP’s property is in danger of being wasted, misappropriated, or lost.

In reality, ETG takes both time and money. Lawyers have to be assigned to represent all parties, and the judge has to appoint a guardian.

The court may appoint an emergency temporary guardian – on its own – if no petition for appointment of guardian has been filed at the time of an order determining incapacity. The authority of an emergency temporary guardian expires after 90 days, or when a guardian is appointed, whichever occurs first. The authority of the emergency temporary guardian may be extended for an additional 90 days upon a showing that the emergency conditions still exist. Usually, any need for guardianship that goes beyond this initial 90 days is not an emergency. Some states and regions of the state allow the filing of a Petition for Determination of Incapacity in the event of an emergency, and allow the petitioner to withdraw the petition after the emergency is handled. Nevertheless, such action is not generally permissible.

An emergency temporary guardian must file a final report no later than 30