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Guardianship - Senior woman putting her hands up in defense

Guardianship abuse persists, despite strict rules, regulations

by Tom Alberts | Senior contributor
July 26, 2019

Florida, famous as a retirement haven with a large population of older residents, has adopted strict laws to combat elder abuse.

But the recent death of an Orlando man shows that glaring problems with unwanted guardianships persist.

In 2016, Florida lawmakers, fed up with decades of horror stories about abusive guardianships, created a new agency, the Office of Public and Professional Guardians (OPPG).

With a mission of rooting out bad actors and curbing corruption, the OPPG oversees more than 550 professional guardians assigned to thousands of wards across the state. Professional guardians are appointed by probate courts to act on behalf of incapacitated people who can't afford a private guardian or lack an available family member or friend they have nominated ahead of time to serve in the role.

OPPG officials have been tasked with enforcing stringent rules and requirements for court-appointed professional guardians. Coursework, competency exams and clean financial backgrounds of prospective guardians are required. Fingerprinting and criminal history checks are now standard procedure. Guardians must take oaths to follow rigid guidelines and serve as responsible surrogate-decision makers on behalf of their wards.

All of those safeguards, however, failed to prevent the premature death in May 2019 of Florida resident Steven Stryker, according to state investigators and reporting by the Orlando Sentinel.

As a result of Mr. Stryker's death, a headline-grabbing scandal has erupted in Florida. The OPPG's executive director abruptly resigned on July 23, 2019, three days after a damning investigative report was released. Gov. Ron DeSantis has called for a “vigorous” follow-up investigation into the troubling case, the OPPG's failures and the overall guardianship system. The governor vowed to “take whatever action we need” to restore confidence in the guardianship program.

What went wrong?

Mr. Stryker, 75, suffered from a chronic breathing condition, but it was not considered a terminal ailment. He had difficulty swallowing and required periodic hospitalization for treatment that caused him to become temporarily incapacitated.

In August 2018, an Orlando hospital filed a petition with the court seeking a temporary guardian for Mr. Stryker while he was receiving treatment there. The hospital's petition said Mr. Stryker was “unable to make decisions that would be safe and reasonable for his plan of care and is not able to effectively manage his finances.”

Guardianship - Doctor meeting with a Guardian

In the petition, the hospital recommended Rebecca Fierle, a professional guardian, be appointed. A probate judge approved the request at a routine hearing. Fierle was, like many of her peers, a court-appointed guardian for dozens of individuals in Florida at the same time. Mr. Stryker was added to her lengthy list of wards.

Investigators discovered that it was common practice for Fierle to request “do not resuscitate” (DNR) orders for her powerless clients - without consulting with their families.

During a subsequent hospital stay, Mr. Stryker's psychiatrist discovered the existence of the DNR order. The psychiatrist complained to hospital officials that the DNR order contradicted Mr. Stryker's actual wishes. Mr. Stryker's daughter, Kim, and a close friend of Mr. Stryker's also confirmed his preference was to receive treatment if his heart or breathing stopped.

A hospital ethics panel was convened to address the psychiatrist's complaint, but it ruled in favor of preserving the DNR order at Fierle's insistence. The panel, despite the objections of the three witnesses, was bound by the instructions of the court-appointed guardian. Fierle explained to panel members and Kim Stryker that it was “an issue of quality of life rather than quantity.”

Outraged that Fierle's DNR order remained in place, Kim Stryker filed her own petition with the probate court.

“His guardian has insisted on including a DNR order on his medical records, despite his vocal opposition. He is doing much better and is quite lucid and extremely upset that this woman has full control over his medical and financial records,” Kim Stryker told the judge.

The court forwarded the complaint to the OPPG for the watchdog agency to review.

It was too late. Four days after the complaint was filed in May 2019, Mr. Stryker, a Vietnam war veteran who had worked for the federal Environmental Protection Agency, died.

Guardianship - Person holding hands with another person in a hospital bed

To his daughter's horror, medical records confirmed that doctors did not perform life-saving procedures due to the DNR order.

On July 20, 2019, state investigators revealed their findings and concluded the guardian “abused her powers.” According to the Sentinel, investigators found that Fierle violated several OPPG standards. One of them is that wards have the right to be “treated humanely, with dignity and respect and to be protected against abuse.”

Investigators found it preposterous that Mr. Stryker was “suddenly unwilling to tolerate a condition that he had been dealing with for years” and would have wanted a DNR order.

In the meantime, Fierle could face criminal charges over “the removal of necessary care” for her ward that led to his death.

“She had a responsibility she neglected. ... But it's not enough to just get rid of Rebecca,” Kim Stryker told the Sentinel. "I want to see the powers that be really examine the system because I think there's no way to pull the emergency brake on guardianship if the system is bad.”

What do I need to know about guardianship?

Dr. Sam Sugar, a Florida-based author who speaks out against elder exploitation in the United States, says cases like Mr. Stryker's are nothing new.

Professional guardianship since the 1980s has evolved into an “egregious and untouchable brand of legalized identity theft” that allows strangers to “legally take power and lord over almost any family or individual with total impunity and the aegis of the court,” Sugar says.

Those under guardianship no longer have the final say on where they live or their medical care. Guardianship removes their freedom to marry, enter into contracts and take legal action. Wards lose their rights to control property, vote, travel or even hold a driver's license.

Careful estate planning is an important preventive measure against guardianship, experts say. They advise adults to create powers of attorney for health care and finances and effectively name a self-appointed guardian. Also, you can state your treatment preferences in an advance directive (a living will) and prevent an unwanted DNR order.

A key to avoiding a fate like Mr. Stryker is to ensure you have the proper legal documents in place long before you become incapacitated. That way, you can entrust a family member, friend or other trustworthy representative to make personal, financial and health care decisions on your behalf when necessary.

Establishing a revocable living trust is another remedy to avoid the appointment of a professional guardian. In your trust instructions, you can establish a procedure for a private determination of incapacity - and not a public determination by a judge.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at legacyassuranceplan.com.

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