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The State of Florida has long recognized that serving as a guardian is a difficult job and one that requires payment.  The Florida Legislature has put the standard for payment in the guardianship statutes to ensure that it is recognized as a job that one would not do out of just “love and kindness.”

Unfortunately, the State of Florida has taken a step backward, especially for our most vulnerable, making it harder for Medicaid recipients to obtain the services of a court-appointed guardian.

Florida’s Department of Children & Families (DCF) ruled on November 14, 2013, that if your loved one is a Medicaid recipient obligated to pay their income to a facility as a “patient responsibility,” their patient responsibility cannot be reduced to pay the fees of a court-appointed guardian. DCF determined the fees for a guardian’s services are not an allowable deduction, in large part because DCF, as the final arbiter of what is an allowable deduction, has decided those services are not “medically necessary” or otherwise an allowable deduction.

DCF’s ruling applies even if a guardian is Legally necessary to access income or assets or required for making your loved one’s medical decisions. Even more shocking, DCF’s ruling applies even when DCF itself petitions to appoint a guardian because it believes a guardian is necessary for the protection of your loved one’s health, welfare and safety.
This means that if you are family member, you will be serving as a guardian without compensation.  Professional guardians, who are often appointed when DCF petitions for the appointment of a guardian for a vulnerable, incapacitated adult will also be serving in many cases without compensation.

This means all guardians in Florida must be more careful when taking these assignments. Unless an individual for whom a guardian is appointed has money and assets to pay for the guardian’s services, the guardian will be serving pro bono (for free) for as the long as the individual is under guardianship (usually their entire life).  It is also important to note that the guardian’s expenses incurred in representing your loved one are also not likely to be reimbursed. Therefore, even if you or a professional guardian is willing to serve pro bono, the guardian will end up paying their own court filing fees, postage, bank fees, mileage, and other expenses related to providing guardianship services to your loved one.

In addition, in Florida, guardians are required to retain the services of an attorney.   This means that any guardian who is serving an individual with limited income and few assets will have to find an attorney who is willing to serve pro bono on an indefinite basis or the guardian will have to pay the fees and costs of the attorney.

Does this affect you or a loved one?  If so, or if you are concerned that it might, join in the discussion here.