August 31, 2017 Guardianship Audit Update Florida Court Clerks & Comptrollers 2018 Winter Conference 3.2.18
Anthony Palmieri Deputy Inspector General and Chief Guardianship Investigator Clerk & Comptroller, Palm Beach County Administrative Coordinator Clerks Statewide Investigations Alliance
Clerk s Role in Florida Guardianship System Oversight Courts OPPG Auditing/Reviewing Investigating Clerk
Clerk s Role in Florida Guardianship System Independent check and balance Levels the playing field Solutions driven Experts Ensures integrity Warms the bench
Clerk s Role with Florida WINGS
Florida Supreme Court/OSCA JMC WINGS Steering Committee WINGS Stakeholders
WINGS Vision Statement The vision of Florida WINGS is to serve the best interests of those needing decision making assistance in order to promote their well being, dignity, and independence.
WINGS Mission Statement Florida WINGS is a collaborative group of stakeholders dedicated to creating solutions through court community partnerships by identifying, assessing and improving guardianship practices and decision making alternatives to enhance the quality of care and lives of vulnerable adults.
WINGS Survey 307 total responses Attorney/Legal Staff 122 Family/Friends 54 Professional Guardians 39 Family Guardian 27 Public Guardians 10 Persons Under Guardianship 2 Clerks 2 Law Enforcement 1
WINGS Survey by county Miami-Dade 63 Broward 52 Palm Beach 40 Hillsborough 28 Pinellas 27 Orange 26 Brevard 23 Lee 21 Sarasota 20
Requires additional training Assisted Living Facilities 93 Caregivers 82 Law enforcement 61 Attorneys 56 Judges 47 Professional Guardians 47 Clerks 46 Court staff 41
WINGS Survey Comments It must be abolished Get guardianship out of the courts and away from the good ole boys It s modern day slavery and human ownership Stop jamming system to garner fees for connected cohorts of stakeholders
WINGS Survey Court and Clerk systems need to be more efficient It takes to long and it is too expensive More training to gatekeepers Better funding for training of judges and clerks Where exactly in the clerk office do my court filed documents go after filing?
Opinion of Florida Guardianship System Answered fair to very good 72.4 % Less than fair to poor 24.4 %
Clerk s Role with Auditing
Florida Constitution Article V, Section 16 Section 744.368, Fla. Stat.: Clerk shall audit the reports & advise the court.
Finder of fact vs. trier of fact Assisting with administration of proceedings Systematic review Verifications, reviews of substantiating papers Interviews, inspections, & investigations
Court Waiving Verified Initial Inventory Annual Accounting Clerk s audit Guardian Education Training (4 & 8 hour) Attorney of Record
Ex Parte Communication Done for one party only No notice or contestation By person adversely interested
Permissible Ex Parte Communication Authorized by law For scheduling and administrative purposes Not substantive matters or issues on the merits Disinterested expert advise on the law applicable If notice and reasonable opportunity to respond
Florida Code of Judicial Conduct Perform duties without bias or prejudice Right to be heard according to the law Dispose all matters fairly
Clerk s Role with Life Insurance Proceeds
Clerk s Role with Guardian Fees
Guardian s registration requirements Section 744.108, Fla. Stat.: Reasonable fee for services to or on behalf OPPG Standards of Practice 58M.-2.009(22): Reasonable fees & related to guardianship duties
Clerk s Role with Attorney Fees
Guardianship Attorney Fees Section 744.108, Fla. Stat.: Fees submitted to the court Must have itemized description of services
Other Attorney Fees Section 744.444, Fla. Stat.: Employ & pay reasonable fees Tax attorney Criminal defense attorney Personal injury attorney
Clerk s Role with Trusts
Initial Verified Inventory Section 744.365, Fla. Stat.: Must include trusts when ward is beneficiary
Annual Accounting Section 744.3678, Fla. Stat.: All of the ward s property Guardian has control Does not apply to trust which ward is beneficiary but not under the control or administration of guardian
Annual Accounting Section 744.3678, Fla. Stat.: All of the ward s property Guardian has control Does not apply to trust which ward is beneficiary but not under the control or administration of guardian
Clerk s Role with Auditing Trusts 744.3678(2)(a) Guardian=Trustee 744.441(19) Court Ordered Trust Pre- Guardianship Trust
Clerk s Role with Attorney/Professional Guardians
Definition of Professional Guardian Section 744.102(17), Fla. Stat.: Means any guardian Rendered guardian services 3 or more non-relative wards
Registration with the OPPG Section 744.2002(1), Fla. Stat.: A professional guardian must register with the OPPG.
Consideration for Appointment Section 744.2003(9), Fla. Stat.: The court may not appoint any professional guardian who is not registered
Clerk s Role with Medical Reports
Section 744.368, Fla. Stat.: Clerk shall review guardianship plans Ensure plan contains information
Guardianship Plan Section 744.3675, Fla. Stat.: Includes physician s report Who examined the ward
Definition of Physician Section 458.305, Fla. Stat.: Person who is licensed to practice medicine Diagnosis, treatment, operation, or prescription For human disease, pain, injury, deformation Or other physical or mental condition
Title Can They Complete & Sign Off on Physical Reason Authority Medical Doctor (MD) Yes Able to diagnose s. 458.305 Doctor of Osteopathy (DO) Yes Able to diagnose s. 459.003 Physician Assistants Yes Is licensed to perform medical services and diagnose Advanced Registered Nurse Practitioner (ARNP) Who can perform physicals? s. 458.347(2)(e); FAC 64B8-30.001 and 64B8-30.012 Yes Given explicit authority to diagnose s. 464.003(3) and (20); s. 464.012(3); FAC 64B9-4.001 and 64B9-4.009 Clinical Nurse Specialist (CNS) Yes Given explicit authority to diagnose s. 464.003(6), (7) and (20); FAC 64B9-15.002 Psychiatrists Yes Psychiatrists are able to diagnose and treat mental, nervous, psychological, marital, or emotional disorders, illnesses, or disability, alcoholism and substance abuse, and disorders of habit or conduct, as well as psychological aspects of physical illness, accident, injury, or disability, including neuropsychological evaluation, diagnosis, prognosis, etiology, and treatment. Chiropractic Physician Yes Diagnosis medical conditions is not listed under the definition of the practice of chiropractic medicine. However, in section e it states that they can analyze and diagnose the physical conditions of the s. 490.003(4) s. 460.403(9)(a) & (e)
Title Who can perform physicals? Can They Complete & Sign Off on Physical Reason Authority Athletic Trainer No Can treat athletic injuries but no authority to do complete physical examination and make a diagnosis s. 468.701 & s. 468.713; FAC 64B33-4.001 Certified Chiropractic Physician s Assistant No May perform physical exams nut also they function in a dependent relationship with a supervising physician. They cannot render diagnostic results or interpretations or render treatment advise unless properly certified. Physician must sign off on the physical. s. 460.4165; FAC 64B2-18.001(5) Registered Chiropractic Assistant No May only assist with patient care management and administrative and clinical procedures. Not able to diagnose. s. 460.4166; FAC 64B2-18.001(6) Acupuncturist No Acupuncturist may not diagnose medical conditions outside of the need for acupuncture. s. 457.102(1); s. 457.104; FAC 64B1-4.011 Licenses Practical Nurse (LPN) No No authority to perform diagnosis s. 464.003(16) and (19); s. 464.003(5); FAC 64B9-15.001 Medical Assistant No Not able to perform diagnoses s. 458.3485 Registered Nurse (RN) No Practices professional nursing; can perform assessments and nursing diagnosis s. 464.003(20) and (22); FAC 64B9-15.001 Certified Nursing Assistant (CNA) No No authority to perform diagnosis s. 464.201(5); FAC 64B9-15.002
Clerk s Role with Criminalization of Guardianship Fraud
Bridging the Gap between civil guardianship & criminal justice system First responders DCF/APS
Indirect Criminal Contempt Rules of Criminal Procedure 3.840: Order to Show Cause Order of Arrest Arraignment
Investigation Costs Section 938.27, Fla. Stat.: Convicted persons are liable for investigative costs for law enforcement agencies If requested by such agencies Determination of guilt by trial or plea
Clerk s Role with Statewide Investigations www. FLClerkSIA.com
Clerks Statewide Investigations Section 744.2004, Fla. Stat.: State required to investigate Any complaint Professional guardian Violated standards of practice www. FLClerkSIA.com
OPPG Complaints Stealing ward s property Isolating of ward, unnecessarily restrictions Not communicating Colluding, racketeering, corruption Conflicts of interest, self-dealing Breaching fiduciary duties Inadequate care, not considering ward s wishes Decisions not in best interest of ward www. FLClerkSIA.com
Illicit Motives for Complaint Retaliation Vindictiveness Jealousy Greed Smoke screen/diversion Delusions / fictitious www. FLClerkSIA.com
Finds of Fact Substantiated means there is sufficient information to justify a reasonable conclusion that the allegation is true. Unsubstantiated means there is insufficient information to either prove or disprove the allegation. Unfounded means there is sufficient information to indicate the allegation is false. www. FLClerkSIA.com
Reporting Criminal Law Enforcement Administrative OPPG Civil Court/Clerk www. FLClerkSIA.com
Statistics 110 Complaints forwarded to Clerks IG Pinellas Co. (12) Seminole Co. (11) Broward Co. (8) Palm Beach Co. (8) Miami-Dade Co. (8) Brevard Co. (7) Hillsborough Co. (6) Orange Co. (6) October 1, 2016-March 1, 2018 www. FLClerkSIA.com
Statistics Tampa Bay 2.6 million population 22 cases I-4 Corridor 4.2 million population 29 cases South Florida 6 million population 29 cases www. FLClerkSIA.com October 1, 2016-March 1, 2018
Statistics 273 Allegations Investigated Substantiated (29) Unsubstantiated (40) Unfounded (159) 9 Additional Observations 45 Determined to be Non-Legally Sufficient 136 Investigative Memos & Reports Issued October 1, 2016-March 1, 2018 www. FLClerkSIA.com
Statistics 136 Investigative Memos & Reports Issued 40 Investigations Closed 13 Complaints Non-Legally Sufficient October 1, 2016-October 7, 2017 www. FLClerkSIA.com