By: Teresa N. Phillips, Esq., ForsterBoughman
I Care A Lot is the title of a new Netflix release which tells the fictional story of a predatory professional guardian, Marla Grayson. Marla described herself as a “lioness”, and the elderly population with little to no family, are her prey.
It is a dramatized story of the professional guardian who goes after what she calls “cherries”. These are senior citizens who have significant assets but can easily be seen as “in need of immediate care” with the friendly assistance of doctors or other medical professionals who exaggerate symptoms such as confusion and memory loss.
In this story, the guardian makes the mistake of targeting a mobster’s mother and chaos ensues.
To one who has never been involved in a guardianship matter, the story probably feels like a complete work of fiction, just telling an outrageous story that could never be true. But what might surprise many people are the aspects of the movie that are not only possible but do in fact happen.
So, what parts of the movie are true? [Warning Spoiler Alert ahead]. Well, here are a few questions I have been asked by people I watched the movie with and which you may be asking yourself.
Can an elderly person find themselves greeted at their own door by a stranger who has an order appointing them a guardian and be directed to leave their home, even with a threat of police escort?
Under Florida law and under certain circumstances, this can actually happen. There are provisions that permit a Florida Court to appoint what is called an emergency temporary guardian when the Court finds based on the sworn petition or testimony of an interested party, that the ward is in imminent danger to their person or property. This can be as simple as someone reporting to the Court the ward has not paid their bills or has been found to be profoundly confused. Obviously, it is the intent of the provisions to be used only in emergency situations and a three-party examination of the person and a full evidentiary hearing should be conducted within sixty (60) days and the ward must be given court appointed counsel (or other counsel of their choosing) to represent them at such hearing. But so long as the Court is convinced there is imminent danger, the person is subject to the decisions of the guardian about their care and living situation.
Can a guardian take a ward’s cell phone away and ban visits by family members?
Yes. I have personally witnessed professional guardians do both when they claim making or receiving calls or visits from a family member is “upsetting the ward” or is interfering with the “transition to a new living facility.” While Florida law favors allowing unfettered visits with family members and friends, courts will sometimes agree with the guardian if the Judge is convinced that the visits are not in the ward’s best interest and pose some sort of risk.
Can professional guardians sell the ward’s home against the ward’s wishes?
Yes. If a ward has been declared incapacitated, judges oftentimes approve orders seeking to sell the ward’s property, including the homestead. This happens even though the homestead is a protected asset from creditor claims and does not count against the ward when seeking Medicaid or other State assistance with facility costs. What’s the reason for approving the sale? To pay for the ward’s facility expenses and of course the professional guardian’s fees and costs.
Do professional guardians operate under a business, with employees and contacts in the healthcare and nursing care fields who assist them to identify potential wards?
The answer is that yes, some professional guardians work with a business and network that can be as complicated as the one depicted in the movie. I have never seen any evidence of quid pro quo exchanges happening between professional guardians and other professionals but professional guardians having contacts or taking other affirmative actions to find potential wards happens. In fact, a bill was recently proposed in the Florida legislature (and ultimately failed) that was designed to prohibit what is known as “trolling”. That is the practice in which a professional guardian takes affirmative steps to identify a potentially vulnerable, elderly person by visiting nursing homes, sponsoring “breakfasts” for seniors, and/or receiving phone calls from contacts in hospitals, doctor offices, or other places where a vulnerable person may be seen or identified. Then the professional guardian files paperwork, sometimes after persuading the elderly person to consent or sign, for a formal guardianship. At this time, this practice is not forbidden under Florida law although many would question the ethics of the practice.
You may be noting that the rules and procedures I have described above seem to be ripe for potential abuse. And I would agree with such an observation. Fortunately, our system is also set up with oversight, intended to root out any potential abuse or taking advantage of a ward. That oversight falls to the judge overseeing the guardianship case.
How about the Judge that was portrayed in the movie? He seemed very concerned about the wards and was clearly persuaded by the false but heartfelt speeches and pleas from Marla Grayson, the professional guardian depicted in the movie. When a family member complained in the movie, the Court noted Ms. Grayson was a well-respected guardian and espoused having much confidence in her abilities and motives.
Should we be worried that professional guardians could similarly mislead judges in real life? After being involved in dozens of guardianships over my twenty (20) years of practice, I would opine that when there is anything less than the most stringent oversight and questioning from a guardianship Judge, the chances of abuse by professional guardians is real.
The movie is an embellished work of fiction. But it raises some fair questions. I have often asked this question: Who protects the ward from her guardian, her so called protector? It will be a question we will return to again and again on this blog and as we share stories about guardianships gone wrong and trends in this area. We will even give some advice on what you can do to try to avoid ever finding yourself on the wrong end of a Florida Guardianship case.