Wednesday, September 16, 2020

Florida Lawyers Seek to Make Guardianship Records Confidential. (Florida First Amendment Foundation)

Warning: this proposed Open Records exemption would allow guardians to peculate undetected.

It would make all records on incapacity and guardianship secret.

Who benefits?

Louche lawyers and guileful guardians?

I strongly agree with Ms. Virginia Hamrick, First Amendment Foundation Staff Counsel: the legislature must reject this malarkey.  

Legislators: kindly roast and toast this turkey, but don't eat it.  If it passes, public integrity suffers.

Some lawyers are more equal than others.  Some have sufficient legislative clout to exempt their activities from legal scrutiny, like debt collection attorneys, 1977-1992, when the Fair Debt Collection Practices Act was amended to remove the attorney exemption. 

From Florida First Amendment Foundation:

Florida Lawyers Seek to Make Guardianship Records Confidential
by: Virginia Hamrick, FAF Staff Counsel

A group of lawyers is pushing legislation that would make guardianship records confidential. FAF believes this is bad public policy. Journalists have used guardianship court records to uncover fraud by guardians and conflicts of interest within Florida’s guardianship system. Investigative reporting led to local and statewide guardianship reforms. 

But now the Real Property, Probate, and Trust Law Section of the Florida Bar is advocating for increased secrecy and decreased transparency of the guardianship records. The section recently approved and adopted the Ad Hoc Guardianship Law Revision Committee’s proposal for amending the guardianship statute. The proposed bill would make all records relating to incapacity and guardianship confidential. 

The bill would allow certain parties to access the files: the court, the clerk, the guardian, the guardian’s attorney, the ward’s attorney, a guardian ad litem appointed on behalf of the ward, the Office of Public and Professional Guardians, and an adult ward who has not been adjudicated totally incapacitated. Meanwhile, family members, the public, and wards deemed totally incapacitated would need to show good cause to review the records. As noted in the Orlando Sentinel, there is no exception for cases in which release of court records would serve the public interest. 

Supporters of confidentiality have argued that wards have fewer privacy rights than others. Proponents have noted that, in a guardianship, contract details to buy or sell land must be submitted to a court; however, when a person with full capacity makes a similar purchase, details of the contract are confidential. An attorney on the committee told the Sentinel that this proposal would prevent a ward’s private information from the “reach of predators, gadflies or other self-servers.” 

Yet, protections for a ward’s private information already exist. A vulnerable adult’s medical, financial, and mental health records are confidential and exempt from public records. Unless authorized by law, a ward’s personal and medical records are already protected from disclosure. 

The proposal makes it more difficult for family members and the public to know when guardians sold their wards’ home or purchased property on their wards’ behalf, and the details of such an agreement. Confidentiality makes it harder to oversee when guardians bill fees from a ward’s estate and pay those fees to themselves. The bill is intended to protect wards; instead, the proposed confidentiality provision actually insulates guardians and their conduct from public scrutiny. 

Guardianship is an area already rife with fraud, and a law that provides a cover-up for bad actors is bad public policy. This legislation will only result in less accountability in care-giving. We need more transparency here, not less. FAF intends to oppose this legislation.

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