They Just Took Me Away - Florida's Guardianship System
Estimated reading time: 21 minutes
Adults declared “incapacitated” by the courts can lose everything—their homes, their savings, their freedom—to Florida’s sprawling guardianship system.
It’s been a year since Jan Garwood, a 72-year-old central Florida woman, won her freedom back and started trying to piece together what was left of her life.
In 2017, Garwood was placed in an assisted living facility against her will. A judge had declared her mentally incompetent and put her in the care of a professional guardian to protect her health and finances. The system was supposed to help her. Instead, Garwood felt like a prisoner.
She was stuck in a lockdown ward for three years until a local activist and two attorneys managed to get her rights restored. By then, though, she’d lost more than three years. Her guardian had sold her house, leaving her temporarily homeless. All of her possessions were missing. Her savings and the proceeds from the sale of her house were in a trust that she didn’t have direct access to.
Garwood’s case is extreme, but it illustrates the complexities, uncertainties, and sometimes bizarre twists of guardianship cases, also known as conservatorship.
Last year, the saga of Britney Spears’ successful efforts to free herself from an onerous conservatorship shined a spotlight on the issue. It was the first time many Americans had heard of conservatorships, but this relatively obscure area of the law, in which the state essentially determines that an adult should be treated like a child, sometimes involuntarily, exerts enormous power over the people who find themselves in the system.
In the worst cases of guardianship abuse, functioning adults are completely stripped of their autonomy: where they live, where they can go, who they can talk to, how their financial assets are handled, even how and where they will die.
In Florida, a chilling scandal where a guardian filed “do not resuscitate” (DNR) orders against her elderly wards’ wishes led to calls for state and national reform. With its large number of retirees, Florida is especially ripe for elder abuse and fraud. Some state officials have been working to strengthen the system over the past few years, but senior citizens like Garwood have continued to slip through the cracks. Even with comparatively strong oversight, the state shows how bad actors, conflicts of interest, and crushing caseloads can undermine those protections.
Over the phone, Garwood is clear and cogent, although she swings from relief and philosophical acceptance to despair over how her plans for her golden years were upended.
“I was just sitting in my office working when the doorbell rang,” Garwood recalls. “There was a lady with a police officer, and she said, ‘Give me the keys to the house and car, you’re coming with me.’ They just took me away.”
‘A Vulnerable At-Risk Senior’
Garwood was placed in court-appointed guardianship in 2017. She had been in a car crash shortly after the death of one of her sons, and she was, by her own and her lawyers’ accounts, in a downward spiral of grief. She was at one point held under Florida’s Baker Act, which allows authorities to commit someone to a hospital temporarily for a psychiatric evaluation.
Guardians make personal, medical, and financial decisions for minors, people with developmental disabilities, and senior citizens who can’t handle their own affairs. In Florida, the legal term of art for such a person is “incapacitated.” Family members often fill this role, but when people with disabilities don’t have family qualified to take care of them, courts appoint professional guardians.
In Florida, a professional guardian is someone who has received fees for providing services to three or more wards. The guardian must pass a background check, take a 40-hour course and final exam (along with continuing education requirements), and be registered and bonded with the state.
There are also public guardians that courts can appoint in cases of indigency. The majority of the roughly 500 professional guardians across the state of Florida are scrupulous and compassionate in their duties. One elderly Florida woman, for example, was admitted to a hospital after a neighbor called 911 over concerns about her living conditions and health. The hospital discharged her to a rehab facility that wasn’t equipped to handle her advancing dementia, and the rehab facility in turn discharged her and sent her back to her unsafe apartment.
The woman’s sister lived in Colorado and couldn’t care for her, so she petitioned a court to appoint a professional guardian to make sure she received appropriate medical care, get her apartment cleaned, and sort out her finances.
The sad truth is that professional guardians are also sometimes the best option to protect vulnerable seniors from their own family, and to defuse messy family squabbles over their care and property. This is, professional guardians say, their purpose: to act in the best interest of someone who can’t act for themselves.
But handing someone that much power over other people’s lives, in some cases against their and their families will, is an enormous act of trust. When guardians fail to act in their wards’ interests, it can lead to neglect, theft, and worse.
According to a guardianship petition filed in Garwood’s case, Rebecca Fierle, the Florida woman who would become her guardian, told a judge that Garwood “suffers from a seizure disorder, [has] poor insight and judgment, and is a vulnerable at-risk senior who is a victim of potential financial exploitation, and as a result, she is unable to make healthcare and other decisions or manage her finances.”
Florida has a unique system, more stringent than many states, where a three-person examining committee is required to recommend guardianship. One person on the committee must be a doctor.
Garwood and her lawyers don’t know who referred her to Fierle or how the woman found out about her; they suspect it was one of her cousins. At the time in Florida, a professional guardian could file a petition against anyone. The Florida legislature changed the law in 2020 to restrict guardians from filing such petitions unless they’re related to the person in care.
There was no such law then, so the examining committee, followed by a judge, found Garwood incapacitated. She lost the right to vote, to have a driver’s license, to choose her attorney, to apply for or hold a job, to travel, to marry, to consent to mental or physical health treatment, even to choose who she could talk to or visit.
Garwood was then placed in a local memory care facility—not because of a memory-related condition but because she was deemed a flight risk, according to one court document.
Garwood was held in the Palms of Longwood assisted living facility for three years. She says she wasn’t allowed to use the phone, go outside and smell the fresh air, or even open her window.
One day, though, Garwood got a lifeline. She says a nurse smuggled in a cellphone for her, which she used to post a plea for help on Facebook.
Garwood laughs when she remembers the post and says it must have sounded like a joke—like, “Help, I’m trapped!” But Garwood’s plea found someone who takes such messages very seriously.
A Digital SOS
It’s not a surprise that Hillary Hogue saw Garwood’s digital SOS. If you look into guardianship abuse in Florida, you quickly come across the outspoken activist’s name.
Hogue’s crusade started around 2017. It began, she says, when she had to stop her 90-year-old father from being placed in permanent guardianship by her sister.
Hogue disputed the emergency petition her sister filed that claimed her father was incapacitated. She hired a lawyer, and the two reached a settlement that allowed her father to live with Hogue and stay out of a permanent guardianship in exchange for her father’s accountant serving as his power of attorney. Since then, she has meticulously tracked allegations of guardianship abuse across the Sunshine State.
“This is all I do, from the minute I get up to the minute I go to sleep,” Hogue says.
Hogue reached out to Garwood after she saw her message. She says she tried to visit Garwood in the assisted living facility and bring her a gift bag with some requested items—deodorant and Doritos—but an administrator confiscated the bag and kicked her out, threatening to call the police.
“The only way that Jan got anything different to wear, and Jan was used to having nice things, was when a female resident died and the other female residents would go through a garbage bag to see if anything fit them,” Hogue says.
The Palms of Longwood did not respond to requests for comment.
One frequent accusation in alleged guardianship abuse cases is that guardians stop wards from seeing family and friends. A harrowing 2017 New Yorker investigation into Nevada’s system described elderly people being put into court-appointed guardianships, placed in assisted living facilities, and totally cut off from their loved ones.
The Tampa Bay Times reported on a contentious case where a guardian forbade a 92-year-old woman from talking to her friends and neighbors, and had her calls routed to the guardian. A lawyer for the guardian also told the newspaper that reporters were not allowed to talk to the woman without the guardian’s consent.
Hogue was not easily deterred, though. She put Garwood in touch with two lawyers she knew that fought guardianship cases.
Meanwhile, there was another significant development. In September 2018, Garwood’s guardian, Fierle, suddenly resigned from her case.
At the time, Fierle handled hundreds of guardianships around the state, but within a year her career would begin unraveling under scrutiny—not for defrauding her wards, but something much darker. Garwood didn’t know it, but she had dodged a possible death sentence.
A Macabre Case Leads to Reforms
On May 9, 2019, Kim Stryker sent a complaint to the state’s 9th Judicial Circuit and the Florida Department of Elder Affairs. She said her 75-year-old father, Steven Stryker, had been placed into guardianship without any notice to his family. What’s more, she alleged that her father’s court-appointed guardian, Fierle, had placed a do-not-resuscitate order on him against his explicit wishes.
Stryker had been Baker Act-ed, the same as Garwood. He was sent to AdventHealth, a Florida hospital network. AdventHealth then petitioned a court to place him in guardianship. The hospital specifically requested Fierle as his guardian. After that, he was shuffled between hospitals and assisted living facilities that his daughter says were unable to properly care for him.
Four days after his daughter filed the complaint, Stryker choked to death in a Tampa hospital. Fierle had ordered his feeding tube to be capped, meaning he had to swallow food, despite having a chronic condition that made swallowing difficult. Staff, restricted by the DNR, did nothing to save him.
Several state agencies launched probes into Fierle’s practices following the complaint. The Florida Clerk’s Statewide Investigations Alliance, which investigates claims of guardianship abuse, found that AdventHealth lied in court about not being able to contact Kim Stryker.
“In the Florida Hospital petition for guardianship, they state the Ward’s daughter’s whereabouts were unknown,” the report said. “However, her contact information was listed on the Advance Directive on file with the hospital, and our office found her contact information with a quick Google search.”
When a judge handed Stryker into Fierle’s care and stripped him of his rights in September 2018, the hearing lasted less than three minutes. The local outlet Spectrum News obtained a video of the brief meeting. Based on the reports of the examining committee, the judge quickly placed Stryker into guardianship.
“OK, one, two, three…we’ve got three reports already in,” the judge said.
“Yes, ma’am,” a hospital attorney responded.
“So much for an emergency,” the judge joked, to laughter.
On July 3, 2019, the same state circuit court judge removed Fierle from numerous guardianship cases, finding that she had abused her power by placing DNR orders on her wards without family or court permission. A week later, a judge in a different circuit removed her from nearly 100 more cases and revoked all the DNRs she had filed, following an Orange County comptroller’s investigation that found AdventHealth had paid Fierle nearly $4 million over a decade.
Fierle was double-dipping, billing both the hospital and her ward’s accounts for her services. She was also not disclosing her conflict of interest with hospitals to the courts. By the end of the month, she had resigned from all of her cases and the Florida Department of Law Enforcement (FDLE) had launched a criminal investigation into Stryker’s death.
As the Fierle scandal unspooled, heads started to roll. The director of Florida’s Office of Public and Professional Guardians (OPPG) resigned, as did several other OPPG staffers. ABC Action News revealed that the office had a large backlog of misconduct allegations it was supposed to be investigating and had revoked only one guardian’s license in the past three years. Another family had complained about Fierle in 2016, alleging that their mother wasted away from cancer without proper treatment. The agency ignored the complaint for years.
Doing some public relations cleanup, AdventHealth announced it would no longer pay private guardians and would support reforms of state laws. (AdventHealth declined to comment, citing pending litigation.) Meanwhile, ABC Action News found similar practices at hospitals across the state. (Hospitals have a financial incentive to discharge long-term patients, especially after insurance stops covering their treatment.)
Florida authorities arrested Fierle in February 2020, more than a year after Steven Stryker’s death. The FDLE charged her with aggravated abuse and neglect of an elderly person.
“Medical professionals who examined [Stryker] believed he was capable of making end-of-life medical decisions for himself and informed [Fierle] that her client had a strong desire to live and that he understood his condition,” the FDLE said in a press release announcing Fierle’s arrest. “Despite the wishes of the elderly man and those of his family and friends, [Fierle] ordered his doctors not to perform any life-prolonging medical procedures saying she preferred ‘quality of life versus quantity of life.'”
When the FDLE raided Fierle’s office, it found nine urns containing human remains. It’s not unheard of for guardians to temporarily be in possession of cremated remains while they make funeral arrangements since their wards sometimes don’t have an immediate or nearby family. However, the relatives of Marilyn Hammock, whose remains were found in Fierle’s office, told the Orlando Sentinel that Fierle refused to send them Hammock’s ashes until her husband, also Fierle’s ward, died as well.
Reporting Gaps Persist
With macabre details about human ashes making headlines, state lawmakers moved to act. Republican Florida Gov. Ron DeSantis signed guardianship reforms into law in June 2020. The new law requires courts to grant permission for guardians to sign DNRs; it also mandates that guardians detail payments. As noted above, it also stopped professional guardians from filing petitions unless they were related to the proposed ward.
But watchdogs say more transparency and information sharing between courts is necessary. Although the majority of professional guardians may follow the rules, bad ones can escape detection due to poor record-keeping and lack of communication between county court systems, all of which have their own filing systems.
“The Rebecca Fierle case really highlighted the need for a statewide database and uniform reporting system for guardianship cases,” says Brad Embry, inspector general for the Okaloosa County Clerk.
An audit by the Orange County Comptroller published last March found major deficiencies in the county’s tracking and oversight of guardianship cases. Courts weren’t notified when guardians failed to file required reports or lacked qualifications, weren’t informed of unauthorized guardian and attorney fees, and couldn’t track active guardianship cases. In one case, the court was unaware that a ward had been dead for 33 months. The report also found “several conflicts of interest between professional guardians assigned and other parties involved in cases; including, examining committee members, attorneys, a trust director, and service providers.”
Before she was removed from her cases, Fierle had at least 450 wards under her care, such as it was, across 19 counties.
In Florida, guardians are required to file detailed annual reports on their wards’ finances and assets, but the sheer number of guardianship cases presents a problem for court systems and watchdogs.
Anthony Palmieri, deputy inspector general for the Palm Beach County Clerk of Court, said last August that Palm Beach County alone has 3,000 to 3,200 open guardianship cases controlling more than $1 billion in assets. In 2020, Palmieri’s office identified $1.2 million in unverifiable and questionable guardianship expenditures and misreported assets.
According to public records obtained by Reason, the OPPG fielded 153 complaints about guardians in 2021 and the Clerk’s investigations alliance opened 51 investigations into alleged guardianship abuse.
A BuzzFeed investigation last year estimated that as many as 200,000 adult guardianship cases are filed annually in the U.S. The most vociferous critics of guardianship, like Hogue and Rick Black, co-founder of the Center for Estate Administration Reform, say this system amounts to a huge exploitation scheme. Black often describes guardianship as estate fraud on a massive scale.
It’s hard to overstate how thoroughly a malicious guardian can ruin someone’s life. Last year, a Florida guardian was convicted on 15 charges of exploitation of an elderly person, grand theft, money laundering, and perjury. Prosecutors said he stole $420,000 from five of his wards. One of those wards was placed in an assisted living facility where the owners were later arrested for elder abuse.
Traci Hudson, a Pinellas County guardian, was arrested in 2019 on charges that she stole $500,000 from a ward and spent the money on things like Tampa Bay Buccaneers tickets, jewelry, and a 4,000-square-foot home. Fifteen months before Hudson was arrested, she won a libel lawsuit against the daughter of one of her wards, who had complained about her father’s treatment. A judge awarded Hudson $160,000, leaving the woman destitute and homeless.
The executive director of the Florida State Guardianship Association did not return requests for comment for this story.
‘I Thought I’d Live in That House Forever’
When Leslie Ann Ferderigos first talked to Jan Garwood, she thought, “How in the hell is this person in guardianship?”
Ferderigos is one of the two attorneys Hogue contacted to take on Garwood’s case, along with Vito Roppo, a Naples lawyer.
Attorneys for Garwood’s new guardian—Denise Willis, appointed after Fierle resigned—filed a motion for sanctions against Roppo for trying to represent Garwood, since Garwood had no power to choose her own attorney. But Roppo and Ferderigos began fighting to lift Garwood’s guardianship anyway, starting with a new medical evaluation. (One quirk of guardianship is that when a ward fights to have her rights restored, the guardian’s attorney fees come out of the ward’s account. So Garwood was paying for her own opposition.)
The complex legal wrangling that followed illustrates the tangled connections, incentives, and conflicts of interest that the Orange County comptroller identified among guardians, attorneys, and examining committees that recommend or reject petitions for guardianships.
In 2018, Willis had filed a “suggestion of capacity”—a request for the court to reconsider Garwood’s mental capacity and restore some or all of her rights—on Garwood’s behalf, but a judge denied it based on the report of a physician who examined Garwood.
According to court records, that physician was Thomas Sawyer. As BuzzFeed reported last year, Sawyer is an oncologist who Florida probate courts regularly turn to for examinations in guardianship cases. He also founded a law firm that represents professional guardians.
In fact, Sawyer’s son-in-law—Thomas Moss, a partner at the firm—was Rebecca Fierle’s attorney before she resigned from Garwood’s case.
Moss represented Fierle in hundreds of cases, including, BuzzFeed reported, the case of a “59-year-old woman who complained of being held in a lockdown facility while Rebecca Fierle paid out thousands of dollars from her accounts without court approval.” That woman had also filed a suggestion of capacity, but it was denied based on the report of the examining physician, none other than Thomas Sawyer.
Roppo and Ferderigos got another doctor to evaluate Garwood. The doctor reported that she “is fully capable of handling and executing her own personal, medical and financial day-to-day affairs.”
The conflicting opinions show the difficulty of determining exactly when someone is “incapacited”—that is, when it’s necessary to protect her from her own choices. A 35-year-old is largely free to indulge in ruinous but legal behavior without the threat of being stripped of legal autonomy. Is a 70-year-old who does the same simply making bad choices or mentally infirm?
In another guardianship that Ferderigos successfully had terminated, a Florida man named Doug Keegan went through eight psychiatric evaluations over the course of his guardianship. Law360 reported last year that three doctors recommended no guardianship, two recommended limited guardianship, and two recommended plenary guardianship, the most stringent form. Keegan’s family had moved to place him in a court-appointed guardianship because he had a severe alcohol problem and had married a Kenyan woman whom he had met online. Shortly after his rights were restored, Keegan was arrested and charged with making written threats against his former guardian’s lawyer and the judge in his case.
Based on Garwood’s new medical evaluation, Roppo and Ferderigos filed a suggestion of capacity in her case, and on August 24, 2020, a judge restored Garwood’s rights.
Unlike Keegan, Garwood has maintained her freedom since then. The problem is, she has her autonomy back but not much else.
Garwood’s guardian had previously received approval from the court to sell her house to pay the costs of her staying at the assisted living facility.
“My mother died in that house. I wanted to live there forever,” Garwood says. “I thought I’d live there forever.” Instead, she was homeless. She spent some time living at Ferderigos’ house, in a friend’s garage, and at a hotel.
Roppo says that Garwood’s house was sold to the relative of an administrator of the Palms of Longwood assisted living facility for well under market value.
Property records show that Willis sold the home in 2019 to Danielle Wolfrum for $250,000. According to 2019 Seminole County tax records, the property had an assessed value of $310,095. State records from 2018 list the administrator of the Palms of Longwood as Kendra Wolfrum.
When the Seminole County Clerk’s inspector general audited Garwood’s guardianship last year, the investigation found that her house “may have also been sold below true market value.”
“Though a real estate comprehensive was provided, the Court was NOT provided with a property appraisal conducted by a licensed property appraiser,” the audit noted.
Kyle Fletcher, Willis’ attorney, says that the sale of the house and the handling of Garwood’s finances were all duly approved by the court. (It bears noting that there’s considerable acrimony between Fletcher and Ferderigos. Fletcher, who also represented Doug Keegan’s guardian, has accused Ferderigos of improperly jumping into guardianship cases, unethically misleading judges, and using hand-picked doctors to give her clients favorable evaluations. The Florida Supreme Court sustained a bar complaint against Ferderigos last year for unprofessional behavior in an unrelated case, and a federal judge dismissed a civil lawsuit filed by her on Garwood’s behalf for being a “shotgun pleading,” a term for a complaint that is too vague to give the defendants proper notice of the claims against them.)
Although Garwood’s rights have been restored, her guardianship case is still open due to ongoing issues with and objections to Willis’ final report on Garwood’s assets. The inspector general has repeatedly dinged Willis for gaps in the report and for failing to provide requested documents.
“It’s a year later, and we still don’t have a complete accounting of what [Willis] did,” Roppo says.
In the meantime, Fletcher has filed a petition to the court seeking to bill Garwood $1,800 for his time spent on her case after her rights had been restored. He was, after all, still the attorney for her court-appointed guardian, and the case was still open. This sort of billing is common. When the Tampa Bay Times reported on a contested guardianship case, the guardian’s attorney noted that he would be billing the ward for time spent responding to the newspaper’s email.
While Garwood’s case drags on, things are moving faster elsewhere in the Seminole County court system. On January 10, a Seminole County judge removed Willis from 20 other guardianship cases, according to court filings.
“Judge [John] Galluzzo takes his responsibility to protect and preserve the interests of the ward very seriously,” Michelle Kennedy, the public information officer for Florida’s 18th Judicial Circuit, said when Reason asked about the reason for the removals. “When the previous guardian was unable to file timely reports, Judge Galluzzo had a duty to appoint new guardians.”
How To Stop More Cases of Guardianship Abuse
Last year, the state of Florida convened a task force to draft recommendations for improving Florida’s guardianship system. The task force included Hogue, as well as state legislators, judges, court clerks, professional guardians, and a former ward.
The task force released its final report in January. Its recommendations include a statewide data collection system for guardianship cases, a database of guardians, and notifying courts of discipline against guardians.
“I believe the biggest challenge in guardianship oversight is statewide uniformity,” Embry says. “The required documentation for certain types of filings vary from circuit to circuit, county to county, and courtroom to courtroom.”
Unfortunately, this isn’t a new problem. A similar Florida guardianship committee recommended in 2003 that “uniform reporting forms should be adopted on a statewide basis.”
The January task force report also recommended giving more opportunities for “supported decision-making,” an alternative to guardianship that allows people with disabilities to choose supporters who will help them make decisions. The supporters do not have full legal power over the person.
“Studies show that people who have greater self-determination are more likely to identify abusive situations and less likely to experience abuse,” says Olivia Babis, a senior public policy analyst at Disability Rights Florida. She adds that supported decision-making “allows people with disabilities to have a team of supporters and stronger ties to the community. This makes it harder for any one person to take advantage of them. In contrast, a person under guardianship might be isolated. They may not even be allowed to speak to their loved ones.”
Thirteen states and the District of Columbia have laws encouraging supported decision-making, but Florida is not among them. During Florida’s 2021 legislative session, a bill was introduced that would authorize adults with disabilities to enter into supported decision-making arrangements; it would also require petitioners for guardianship to show they had made efforts to use less restrictive methods. The legislation died in committee.
Picking Up the Pieces
Garwood has an apartment now, at least. But all her possessions were supposedly put in storage after her house was sold, and no one knows where her stuff went. Reached by phone in January, she said she was parked outside a thrift store that a local church opens once a week on Thursdays. “I’m living in second-hand clothes,” Garwood says. “I had food stamps for a while.”
Roppo and Garwood say her family pictures, her jewelry, and the art she collected over the years are all missing. The proceeds of the sale of Garwood’s house, roughly $171,000, were placed by Willis into a trust that Garwood has no control over. The Seminole County Clerk’s inspector general noted that Willis did this without court approval or oversight, contrary to Florida statutes. Garwood says her hair dresser and real estate licenses lapsed while she was under guardianship.
It would be irresponsible to declare, based only on an interview, that Garwood is perfectly capable of taking care of herself. Licensed doctors couldn’t agree on that. But it’s clear that she was deeply unhappy in her guardianship and, four years later, demonstrably worse off for being put through it.
“I had a lot of dreams that I’m not going to see happen,” Garwood says, “and it hurts.”
See the original article here: https://reason.com/2022/04/30/they-just-took-me-away/
About TriMark Legal Funding
TriMark Legal Funding was founded in 2003 and is one of America's premier legal funding companies. TriMark provides pre-settlement funding and post-settlement funding, sometimes called 'lawsuit loans', to injured plaintiffs throughout the United States. We offer funding on hundreds of different types of legal claims including personal injury loans, employment litigation funding, work injury accident loans, workers compensation loans, mass tort litigation funding, and multidistrict litigation funding.
|Personal Injury Lawsuits||More Funding|
Click here to see the original article.