You are receiving this publication for being a contributing member of the Task Force. The Task Force is a significant help to our practices as elder law attorneys. Without the Task Force efforts, many of the programs and legislation that affects our loved ones and clientele would be reduced and significantly impaired. As part of the mission of the Task Force, here is a current update:
Budget Under Covid: Members of the AFELA-ELS executive committees have been meeting and held 8+ meetings to discuss the future organization/financing of the Task Force and the legislative efforts. This is a summary of what was discussed and the decisions reached:
- History of the Task Force and where we are now. No decisions, just important observations
- What level of legislative engagement do we want as an Elder Law Bar?
- It is agreed it should be at a high level
- We want to be recognized as experts and a trusted resource
- We want to continue proactive legislative efforts
- What is the best way to organize the legislative functions of the Elder Law Bar?
- We discussed shifting legislative efforts to the Elder Law Section’s Legislative Committee from the Task Force
- The Task Force historically focuses on Administrative/Judicial Advocacy
- How do we fund the legislative efforts? After many discussions, it was decided that ELS will bear 80% of the legislative/lobbying expenses and the Task Force will bear 20% of the legislative/lobbying expenses
- Lobbyists will not be required to be on weekly Task Force calls. The “legislative sausage making” will be discussed during the ELS legislative committee meetings.
The Legislative Committee: This committee is chaired by Debra Slater, with Travis Finchum and Grady Williams serving as vice-chairs. The Legislative Committee’s meetings will begin September 11th, and be held every other week at 8:30 a.m. Elder Law Section members are invited to attend, as well as the voting members consisting of the Substantive Chairs and Executive Committee members, AFELA liaison, and Chair(s) of ELS Legislative Committee.
The Committee has been having discussions and working with the RPPTL executive committee regarding the exploiter disinheritance statute, to determine common ground and goals. At first, the RPPTL main concern was that the proposed statute was too broad, etc., but RPPTL has not made any decisions and the Committee is working with RPPTL to attempt to negotiate their concerns and reach a consensus. They are concerned that the legislation already provides treble damages and adding “disinheritance” to the exploiter is too overbearing. On a positive note, RPPTL is supporting the Committee’s recommendations of tweaking the exploiter injunction initiative, with minor changes.
The Medicaid Committee under the prior chair’s, John Clardy’s, direction, prepared a White paper and cover letter that was and is being circulated to judges and judicial administrators throughout the state of Florida regarding Authorized Medicaid Representatives and the practice of non-attorneys asking to be appointed as an “Authorized Medicaid Representative” (“AMR”) by the Probate/Guardianship Courts. As previously noted, the Section and Task Force are concerned over possible exploitation and lack of due process protections in the use of this practice as an alternative to guardianship (voluntary, temporary, and/or permanent). More letters to judges are contemplated. Please report any actual known instances of clients or third-parties who have been hurt through the use of this practice to Victoria Heuler, who will be further monitoring this concern.
The Medicaid Committee also notes that since Covid-19, DCF is still using the 120 rule (instead of the 60 day rule) for approval of Medicaid applications. The result is that the state is taking longer to process reviews the first time. The Committee is monitoring this pattern to determine if further involvement by the Committee is beneficial.
Starting September 17, the Medicaid “waitlist” prioritization is staring its Rule development. There are unknowns as to how the waitlist is developed and how the prioritization is accomplished. Perhaps the Committee will be able to provide some input into the Rulemaking process.
The ELS Guardianship Committee under the direction of Twyla Sketchley, Victoria Heuler, and Bill Johnson, began two projects with the support of the Task Force, including reviewing and organizing the concerns regarding the groups and non-interested individuals who “appear” in guardianship cases throughout the states claiming to be “advocates” for a family member or an incapacitated person. These groups engage in litigation and initiate unfounded criminal complaints against attorneys, professional guardians, state workers, and others who have been ordered or directed to protect vulnerable adults through the guardianship process.
In a recent case in the 2d DCA filed July 8, 2020, the Court upheld the trial court’s order finding that the daughter was not an “interested person” under FS 731.201(23) and that she was obligated to pay fees as a sanction under FS 57.105. In that case, the Ward’s daughter was not the appointed guardian but she petitioned as an interested person. As such, she consistently interfered with the court-appointed guardian’s administration of the case until the guardian resigned due to the harassment. If these groups’ actions are not reduced, the guardianship process is threatened. The Committee is gathering information to be able to be used to defend against the spurious and frivolous claims and actions.
An attorney has been misbehaving by taking excessive attorney’s fees (i.e., fees based on a percentage of assets plus trustee’s fees) in connection with a multimillion dollar pooled trust joinder and funding. The Committee has discussed whether this may be a complaint that may be filed with the Florida Bar, a statewide prosecutor issue, or civil complaint.
Guardianship: End of AAAPG: We understand that this group is disbanding.
NE Florida Has PACE Program: The Pace program is designed for Medicare/Medicaid recipients who may need significant care at home but may not be receiving much assistance from Home and Community based Medicaid. Under Florida’s PACE Center the recipient has to agree to use Pace providers. This is usually a faster direct care option to the current Medicaid waitlist. Pace’s focus is to keep people at home. It provides transportation to the Center and for in-home services, such as meals, and stay with recipient through the ALF/SNF process. It will turn down candidates who wait too long before joining, and it is encouraged for the applicant to make the move while he/she can still do the ADLs. The primary point is that the applicant must give up their doctors and be serviced through Pace providers. Many areas in Florida which already have the Pace program have received wonderful feedback. The applicant has to be in an eligible zip code. The Task Force is evaluating whether this program may be an acceptable alternative to the Medicaid “waiting list?”