Cost of guardianship may be rising sharply in Florida

From The News Service of Florida:

A measure working its way through the Florida Legislature would increase by thousands of dollars the filing fee for guardianship of an elderly or disabled adult.

The proposal (SB 1718, HB 5117) deals with court funding and would create new filing fees in probate cases that would range from $1,000 to $5,000, depending on the value of the estate of the person being protected.

Elder-law attorney Twyla Sketchley said if the measure passes, it would greatly reduce the number of family members and friends able to act as guardians of vulnerable elders or disabled people.

“That person, out of their own pocket, to do a Good Samaritan act, would have to pay that astronomical filing fee just to protect their loved one,” said Sketchley.

The increase in filing fees is linked to probate cases but includes all guardianship proceedings. In addition to the current fee of $280, the additional fees will be tied to the person’s estate.

Depending on the value of the estate and whether the House or Senate version of the legislation prevails, the additional cost could range from $1,000, to as high as $5,000 if the person being cared for has a large estate.

“This would definitely be a barrier to persons who are in need of guardianship being able to access that right in the court,” said LuMarie Polivka-West, chief of clinical services for the Florida Health Care Association, which represents the majority of the state’s nursing homes.

Sketchley said the bill will also negatively impact nursing homes and hospitals, which frequently must implement guardianship proceedings to get people to make health care decisions or pay bills for an incapacitated adult in long-term care.

“So those thousands of dollars in filing fees will be paid by those facility providers,” said Sketchley, “and like family and friends, I don’t think facility providers have the ability to pay what is the equivalent of at least a third of their monthly bill to institute a guardianship against an individual.”

The care of many nursing home residents is paid for with public funds, said Polivka-West. Typically a Medicaid patient’s bill is covered 60 percent by Medicaid and 20 percent by Medicare. These individuals can be exceptionally vulnerable due to Florida’s unique demographics, she said.

“We are a state of retirees that came from other states,” said Polivka-West. “Oftentimes, residents don’t have close family members who are able to take that guardianship role.”

Pete Dunbar, legislative counsel for the Real Property, Probate and Trust Law section of the Florida Bar, said he shares Sketchley’s and Polivka-West’s concerns about guardianships, but it is balanced by a concern that the judicial branch of Florida state government continue to be able to operate.

“One of the sources of revenue is filing fees, and the need for additional monies may dictate an increase in some of those fees,” said Dunbar. “I do not think, however, that going to just one type of cause of action and putting the entire increase there would be the best answer to accomplish both objectives – that is, keeping the courts well funded and making sure that you still have access for those who need to be there.”

Sketchley said she appreciates that the courts are in dire need of additional money, but the measure as it stands now will have unintended consequences.

“We would never ask a domestic violence victim to pay $2,000 before we got a domestic violence order to protect that person,” she said. “Yet if you’re an elderly person with dementia, being exploited by a caregiver, we’re now going to ask your loved ones to come and pay $2,000 in filing fees before we’re going to protect that elderly person.”

Dunbar said the Florida Bar is still working with lawmakers to balance adequate court funding with legal protection for vulnerable adults.

“I think the general consensus among the Bar leadership is that if there is a need for increases, the increases should be as uniform as possible and that there are probably some areas – guardianship being one of them – where no increase at all may be appropriate,” Dunbar said.

The bill has reached the floor in both chambers but hasn't come up for debate in either. And staff in the House are considering making some changes in the proposal, likely to surface late next week.

“You have substantially different positions between the House and the Senate on this issue,” said Dunbar. “I think both will be refined further, and I think both will be refined to a solution that finds broad-based acceptance, while neither do at the moment.”