The power of guardians demands better oversight by state and federal governments | Commentary
By CHARLIE CRIST and DARREN SOTO
Orlando Sentinel, November 15, 2019
Picture yourself in your golden years, sitting at home, enjoying retirement after a lifetime of hard work. There’s a knock at your door. Instead of a friend or neighbor, you’re greeted by “officers of the court” who, with no advance warning, no notification to your next of kin, and little explanation, demand you come with them.
You’re placed in a senior living facility far from home. Your possessions are liquidated, bank accounts frozen and your mail and Social Security benefits are forwarded to a professional guardian you barely know. Adding insult to injury, your estate is charged $70 for every hour this stranger spends controlling your life, for the rest of your life.
For people like Willie Berchau of St. Petersburg, and a frightening number of seniors trapped in our broken guardianship system, this is more than just hypothetical — it’s a real-life horror story.
In 2013, Willie was removed from his home and shipped 200 miles away to an assisted living facility on the other side of the state — with no warning and little justification. It took months for Willie to be freed. By then, his savings had been depleted. For a man who escaped Stalinist Russia and Hitler’s Germany, it was a desecration of everything America was supposed to stand for.
In 2017, St. Pete Beach hotel owner Genyte Dirse found herself trapped in a similar situation: while in the process of selling her property to her nephew, Genyte was unexpectedly placed under guardianship following calls to a judge from an acquaintance she barely knew — a Realtor who had shown interest in purchasing the property herself. Ms. Dirse remains under the control of a guardian to this day, who under current law is not required to divulge information on her whereabouts to either her family or the media.
And just this past summer, Orlando-based guardian Rebecca Fierle was stripped of her guardianship of over 400 Floridians after she issued a “do not resuscitate” order without permission for one of her wards, who died after hospital staff where unable to perform life-saving measures.
This tragedy came after years of complaints and no action. During a recent investigation of Fierle, alarming Medicaid fraud and further cases of financial exploitation of incapacitated clients came to light — including revelations uncovered by the Orlando Sentinel regarding nearly $4 million Fierle improperly billed to Orlando hospital AdventHealth.
America’s guardianship system was created as a legal safeguard to assist individuals determined by a judge to be incapacitated or unable to make decisions related to their health or financial well-being. However, as these cases make clear, petitions are not always made with the best intentions of the ward in mind — and the voices of our most vulnerable and their families can and do go ignored.
We have a responsibility to put safeguards in place to ensure these abuses stop, and intervention and action at every level of government is needed.
Judges are the first line of defense against unnecessary guardianship orders. More needs to be done to educate our local judges on alternative options to guardianship and the level of authority that should be provided to private guardians when determined to be necessary.
Greater, more robust oversight at the state level is also needed. Florida established an Office of Public and Professional Guardians in 2016, but it has been underfunded and has failed to take punitive action in any of the ongoing 132 investigations.
In the wake of the Fierle case, the Director of the office resigned, and Gov. Ron DeSantis called for an investigation of the office’s actions — or rather, inaction. The Florida Legislature has an opportunity to make major changes in the next session starting in January — it is imperative they take it.
At the federal level, Congress passed the Elder Abuse Prevention and Prosecution Act in 2017, mandating the Department of Justice provide resources and guidance for the 93 U.S. Attorney offices across the country to prosecute these crimes. To date, they still have not been made a priority, with the resources instead going to tackle other elder abuse issues. More pressure needs to be brought to bear on DOJ and our U.S. Attorneys to go after these crimes and rid the system of predatory actors.
But Congress also needs to do more, including pushing for better data collection on guardianships. We must create a nationwide database that captures information on guardianships, including background checks, from every state and county court system so officials at every level can use this data to track outcomes and identify irregularities where fraud is often present.
Our new bipartisan legislative effort, the Guardianship Accountability Act, does just that, helping to identify bad actors before more people are exploited. A companion bill was introduced in the Senate by Susan Collins, a Maine Republican, and Bob Casey, a Pennsylvania Democrat.
The leading senior advocacy organization, AARP, recently endorsed our efforts as a crucial tool to improve guardianship oversight and stop vulnerable individuals from getting lost in the system.
Given the attention this issue is receiving in states like Florida, it is clear the time to act is now. Working together at the local, state, and federal levels, we can protect our seniors from unscrupulous guardians taking advantage of lax oversight and poor coordination — and fix this broken system once and for all.”
Charlie Crist is a Democrat representing Florida’s 13th District in the U.S. House. Darren Soto is a Democrat representing Florida’s 9th District.
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