Florida bills offer an alternative to court-appointed guardians for seniors

A new program would allow families and elders to work on issues outside of court, saving court fees and keeping family disputes private.
The Capitol in Tallahassee is seen following Opening Day of the Florida Legislature on March 3, 2021.
The Capitol in Tallahassee is seen following Opening Day of the Florida Legislature on March 3, 2021. [ IVY CEBALLO | Times ]
Published April 9, 2021|Updated April 9, 2021

As loved ones age, decisions over their care can become fraught with emotion. An elder might want to keep driving her car, for instance, while relatives would rather she sell it.

“A family member in some situations would go seek a guardianship, so then the legal right to make that decision shifts to the guardian,” said Zayne Smith, associate state director of advocacy for AARP Florida.

But a pair of bills making their way through the Florida Legislature would offer families with aging loved ones an alternative to a court-appointed guardianship to work out conflicts on specific matters such as housing, finances and healthcare. It’s called eldercare coordinating.

“Eldercare coordinating would allow the court to step in before guardianship is warranted or issued to say, ‘Let’s figure this out in mediation. Let’s all sit down and talk about this,’” Smith said. AARP is backing the bills.

House Bill 441, sponsored by Rep. Brett Hage, R-Oxford, and Senate Bill 368, sponsored by Sen. Dennis Baxley, R-Ocala, spell out rules for the “Elder-focused Dispute Resolution Process.” The bills would allow courts to assign trained “eldercaring coordinators” to talk issues out among family members, so painful discussions don’t have to play out in a courtroom. Legal matters would still be decided by the court.

“An eldercare coordinator is there to help this individual that still has the capacity to make legal decisions, or financial or health decisions, but may just need some help doing it,” Smith said.

Florida would be the first state to pass this kind of legislation, said Linda Fieldstone, who sat on a task force to work on the program and is the former supervisor of family court services in Miami-Dade County. Eldercaring coordination began as a 2015 pilot program implemented by eight circuits within the Florida court system, including Miami-Dade.

In many cases, a guardianship is already in place, Fieldstone said, but this alternative has kept some families from establishing unnecessary ones. Coordinators help relatives resolve disputes, reduce the risk of exploitation, establish health precautions and sometimes identify problems within the guardianships, she said.

“We’ve met with tremendous success,” said Fifth Circuit Judge Michelle Morley, who uses the program in her court. It has led to cases where families decided not to take issues to court — saving thousands of dollars in legal fees — and worked out their issues with privacy.

Rates for eldercaring coordinators vary, but average about $125 an hour, Fieldstone said. The program received an $8,000 grant in 2018 to help some families get services for free.

“When I see the family fighting in the courtroom, and the elder knows what’s going on, they are just mortified,” Morley said. But with elder coordination, “when they come to court about legal issues, the emotionality is gone.”

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The bills may not prove a solution for some, said Caitlyn Clibbon, public policy analyst for Disability Rights Florida, the state’s advocacy agency for individuals with disabilities.

The court cannot force someone into the program if they cannot pay for it, Clibbon said, “so anyone who has any money could be forced into this process, whether they like it or not.”

If an elder wanted to challenge a guardianship in court, the court could use its funds instead to pay for elder coordination, she said.

“Even if they do go through this process, and the guardian says, ‘I’ll change these things you don’t like,’ then there’s no way to enforce that agreement,” Clibbon said. “The guardian can keep doing what they’ve been doing all along.”

AARP Florida supports the alternative to guardianship, which can be hard to get out of and harmful to an elder’s independence, Smith said.