Tuesday, 18 July 2017

Chief judge thwarts guardian’s effort to move cases. I Believe that ALL of COLIN's Orders Should be REVOKED. Sweeping Changes? What? There is still MASSIVE corruption in the Palm County Guardianship program. Coates seems to be the Cover Guy for the Exodus of Corrupt Judges leaving the Palm County Probate Bench.

"A year ago, the chief judge booted the cases of controversial guardian Elizabeth “Betsy” Savitt out of the South County Courthouse over apparent concerns about favoritism and conflict of interest involving her husband, a judge, after an investigation by The Palm Beach Post.

This month, out of the public’s view, Savitt lobbied the chief judge to allow her to move her cases back to Delray Beach, saying her wards would save money if she and her lawyer didn’t have to drive to Palm Beach Gardens, where the cases are now.

She asked that her guardianships be in front of Judge Howard Coates, who recently ruled in her favor. Coates blocked efforts to remove her as a guardian in a case where her ward’s former lawyers have alleged that $400,000 of the ward’s assets are missing.

Coates, a former Wellington councilman, recently was transferred to the South County Courthouse.

She made the request to Chief Judge Jeffrey Colbath in a Jan. 18 letter from her attorney, Ellen Morris, that was obtained by The Post.

After inquiries by the newspaper, Colbath on Tuesday wrote to Savitt’s attorney to say her current six guardianship cases will remain in the North County Courthouse in Palm Beach Gardens. However, he said Savitt would be allowed to have new cases, appointed at random, in the south courthouse.

Colbath transferred Savitt’s cases in February 2016 after 
The Post’s investigation, Guardianships: A Broken Trust.

The Post reported that thanks to Savitt’s job as a professional guardian, the life savings of incapacitated seniors flowed into the household of her husband, former Circuit Judge Martin Colin, who sat in the Probate & Guardianship Division in south county.

Savitt took thousands of dollars in fees prior to a judge’s approval and families complained she manufactured legal work to increase her fees, among other criticisms.

They said the judge’s wife appeared to be bulletproof.

Savitt worked most of her cases in the same courthouse where Colin was a powerful judge. Though she didn’t appear in front of her husband, most of her cases were in front of a family friend: Circuit Judge David French. It was French who routinely dismissed concerns about her work from families of her wards.

Savitt’s guardianship attorneys appeared in front of Colin in other cases and he approved their fees.

After The Post’s investigation, the chief judge acted quickly. He transferred Colin out of south county and out of the Probate & Guardianship Division.

Colbath required the judges in south county to recuse themselves from Savitt’s cases and he moved her cases north. Colin announced his retirement and did not seek reelection in November.

Then in October, Colbath announced sweeping changes to the county’s guardianship system, addressing many of the complaints that families had about Savitt — including taking so-called “retainer” fees.

This month, after French was transferred to the Civil Division in West Palm Beach, Savitt’s attorney sent her letter to Colbath asking that the six guardianship cases be sent back to south county and be consolidated in front of Judge Coates.

Coates had presided over Savitt’s cases in north county before replacing French in Delray Beach.

In December, Coates said he would dismiss a motion with prejudice to remove Savitt as guardian for Frances Berkowitz.

The senior’s former attorneys wanted to know what happened to the estimated $400,000 that was in the senior’s savings account at the time Savitt became her guardian. Savitt has said no such amount was in the account.

The former attorneys said they wanted Coates to allow the case to go forward so they could get bank statements and other evidence in discovery.

Donna Solomon Greenspan, one of Berkowitz’ former attorneys, asked Coates point-blank why there appeared to be many roadblocks.

“We wanted to protect our client and we put our client in the hands of the court, saying please give her a guardian who would protect her,” she said. “But this client — who we had been working with for years — was put in the hands of Betsy Savitt.”

Solomon told The Post that the chief judge did the right thing by denying the request to transfer the six cases back to south county.

“Cases are not transferred based on an ex parte letter from an attorney,” she said. “Transfers should be requested by proper motion, under the rules, with notice and the opportunity to be heard.”

Berkowitz died on Dec. 31. Her probate case initially was assigned early this month to south county, but the Palm Beach County Clerk and Comptroller’s Office transferred it to Palm Beach Gardens last week.

Attorneys representing two men who have fought Savitt in guardianships said they, too, are concerned that the professional guardian attempted to go outside a courtroom to get the cases moved back to Delray Beach in front of Coates.

This is called ex parte communication, they say.

West Palm Beach attorney Valentin Rodriguez is not involved in any cases involving Savitt, but as a criminal and civil litigator, he says there are only a few situations where ex parte communications are appropriate. He said if the issue is general rather than case-specific, it is often more acceptable — especially if the other attorneys in the case were notified.

“Generally speaking, the one rule of thumb is that lawyers from either side never discuss ongoing litigation with the judge assigned to the case without it being done in the presence of the other lawyer,” Rodriguez said. “Justice is blind, and sees only the truth, but when one side gets the ear of the judge in the case, then that notion of justice withers away.”

Morris said in her letter that she already had spoken on the phone with the offices of Colbath and Circuit Judge Rosemarie Scher, who is currently assigned the six cases. Morris’ letter said that the chief judge’s office told her to put her request in a letter and also said that Coates had agreed to take back the cases.

“Fundamental and basic rights for litigants in the American legal system consists of notice and the opportunity to be heard,” attorney William J. Maguire wrote Colbath on Jan. 20. He represents a Boca Raton man who has steadfastly opposed Savitt in a guardianship for a stroke victim.

Attorney Thomas Dougherty said his client, who opposes Savitt’s actions in the guardianship of Albert Vassallo Sr., doesn’t feel the issues in south county are resolved in regard to the professional guardian.

“Savitt created the circumstances that required the cases to go to north county,” Dougherty said. “The move back to south county could be considered judge shopping.”

Morris said there was no ex parte communication or judge-shopping because all of the lawyers were copied on her letter to the chief judge.

“Just trying to reduce fees for going to north county by returning to original courthouse I was assigned to,” she wrote in an email response.

Neither Judge Colbath nor Coates responded to requests for comment for this story.

Savitt hasn’t received an appointment to a new guardianship since The Post’s investigation was published in January 2016. But she may get new cases as one of about 30 professionals who are now part of a new assignment wheel, a random method of assigning cases, established by Colbath to eliminate any appearance of favoritism. Judges who appoint a professional guardian must now rely on the wheel to make their choice.

Morris, representing Savitt, argued to Colbath that the cases should move to Coates because of additional time it takes for her and Savitt to travel to the North County Courthouse — time that translates into fees charged to the senior.

Maguire rejected this notion in his own letter to Colbath on Jan. 20. He represents Daniel Schmidt, who litigated for months to force the resignation of Savitt as guardian for stroke victim Carla Simmonds. Schmidt is now Simmonds’ guardian and is fighting Savitt’s fee requests in court.

His lawyer told Colbath that Savitt and Morris could have saved Simmonds thousands of dollars in fees by resigning but instead chose to vigorously litigate with Schmidt for months.

“Now Ms. Savitt and her counsel request ex parte relief to transfer the guardianship to a single judge, ignoring the court’s administrative orders regarding judicial assignments and rotations,” Maguire said.

“All of which ostensibly are in place to avoid the appearance of favoritism, forum shopping, etc.”


Chief judge shakes up guardianship system after Post series; All this Clear Corruption and yet the ORDERS of these Corrupt and Conflicted Judges are still standing in the Simon Bernstein Estate Case and Shirley Bernstein Estate Case, along with Clear and Convincing ILLEGAL Predatory Guardianship.

"Palm Beach County Chief Judge Jeffrey Colbath announced Tuesday sweeping changes for guardianship of incapacitated seniors. The actions come amid revelations by The Palm Beach Post that the savings of these elderly wards flow into the household of Circuit Judge Martin Colin via his wife’s work as a professional guardian in his division.

Also Tuesday, Colin announced that he won’t be running for re-election.

The chief judge’s reforms come in response to last month’s Post series examining the role of Judge Colin and his wife — former tennis pro Elizabeth “Betsy” Savitt — in guardianship cases. Among the changes is requiring all of Colin’s current colleagues in south county to recuse themselves from her cases.

Some of the changes by Colbath were unspecific, leaving more questions than they answered. The announcement does not mention Colin by name, though sources have told The Post that Colin is indeed going to be transferred.

Rotation of personnel to be effective Feb. 15.

In-house training for probate judges and court staff.

The establishment of a guardianship wheel to provide random assignment of professional guardians to cases.

Standardization of bill practices for guardians and attorneys.

Recusal of the current south county judges from Savitt’s cases.

Colin, 66, said on Tuesday that he had planned not to run because he would not be able to complete his term before reaching the mandatory retirement age of 70.

A Florida Supreme Court justice told The Post Savitt’s role as a guardian created an appearance of impropriety for Colin, which could violate the state’s judicial canons. While Savitt doesn’t appear in front of her husband, attorneys who represent her did regularly, relying on him at times to grant lucrative fees.

Colin recused himself of 115 cases between July and December involving Savitt’s attorneys after The Post started investigating. Colin denied any conflict involving Savitt because he does not hear her cases.

Seniors in guardianships often lose all of their legal rights. If a family member can’t serve as guardian, then the court can appoint a professional to manage the incapacitated senior’s finances, their medical care and where they live.

In 2011, Colin’s wife became a professional guardian, working in the same Probate & Guardianship Division where her husband presides. Since that time, Savitt has generated complaints from families on several fronts.

The Post’s series revealed how Savitt took tens of thousands of dollars from the bank accounts of seniors without prior judicial approval, double-billed and funneled money to key relatives of the seniors in her care, including one son who had been accused of physical abuse and one daughter who had been accused of loaning herself $140,000 from her father’s bank accounts.

Savitt also assisted a family guardian in trying to seize property from a Lake Worth house where an incapacitated senior lived. Deputies stopped Savitt and made her return the possessions that did not belong to the senior.

Savitt told The Post she has done nothing wrong and pointed to the fact she has never been sanctioned by one of her husband’s colleagues. Despite concerns about her work, Colin’s fellow judges continued to appoint her to oversee the lives of seniors found incapacitated by the court.

Many of her cases were in front of Circuit Judge David French, a friend of both Colin’s and Savitt’s who once planned a cruise vacation with the couple. It is unknown what will happen to French amid Colbath’s changes.

Colbath’s announcement comes on the day the Florida Senate moved forward a bill that would for the first time establish regulatory authority over professional guardians.

Colbath’s changes do not bar Savitt from guardianship cases. They do keep her from appearing before her husband’s colleagues and fellow judges in south county, where Colin has been in the family and probate division since 2009.

Colbath — who is an elected official — emailed his guardianship changes to The Post’s attorneys through his own General Counsel Amy Borman, thus circumventing reporters.

“As you may know, the guardianship process does not have a traditional adversarial system that protects the interests of all parties. The chief judge has determined that improvements can be made here in Palm Beach County,” Borman wrote.

When the Post reached out to Borman at home at 6 p.m. she refused to clarify Colbath’s changes, such as which judges would be rotated and whether Colin and French would remain in the Probate & Guardianship Division. It was also unclear if Colbath’s “standardization of bill practices” includes barring guardians like Savitt from taking money from seniors’ bank accounts without prior judicial approval.

“This is my time. I’m not answering any questions,” Borman said when contacted on her cellphone. When she was told The Post simply wanted to accurately portray the chief judge’s intentions, Borman said, “Call me at work” and hung up.

If Colbath hoped these changes would mollify the families of Savitt’s senior wards or advocates for guardianship change, he may be mistaken.

“Sadly, these are not improvements; they are instead a patronizing attempt to protect these judges by changing their address,” said Dr. Sam Sugar, co-founder of Americans Against Abusive Probate Guardianship.

James Vassallo, a son of one of Savitt’s senior wards, said he planned to move fast in order to protect his father’s assets while Savitt still had control.

“So I got to get my lawyer to freeze my father’s money so Savitt can’t have it and then say, ‘Catch me if you can,’ ” the Deerfield Beach resident said. “The money should be frozen so she can’t touch it anymore. This just means I got to get a lawyer to go after her and spend more of my money.”

Vassallo said he fears Savitt could move out large chunks of cash like she did in the Helen O’Grady case after O’Grady died. Savitt and her attorney took $30,000 from O’Grady’s savings to be held in trust. A judge made them return all but $2,600 of it.

Robert Jarvis, ethics law professor at Nova Southeastern University, applauded Colbath for instituting “overdue changes,” but added, “One wonders why these procedures were not in place from Day One.”

Jarvis said he hopes other judicial circuits are taking note.

“Hopefully, these sorts of changes will be happening throughout the state,” he said. “The real question is, ‘Are other courts paying attention?’ Is the Florida Supreme Court paying attention?”

What The Post Found

The savings of incapacitated seniors flow into the household of Palm Beach County Circuit Judge Martin Colin courtesy of Colin’s wife — professional guardian Elizabeth “Betsy” Savitt. Fees in most of her cases were approved by another judge who is a friend of her husband’s. Colin approved the fees of her lawyers in other cases."


Tuesday, 11 July 2017

SECOND Letter to Guardian Diana Lewis, Formerly Judge Diana Lewis, Demanding that she Cease and Desist Illegal Guardianship, Turn over Documents, and Correct All Fraud.

Read this SECOND Cease and Desist Letter from another ADULT to Diane Lewis Palm Beach County Attorney and Former Judge now a Guardian Ad Litem. 

It is Different than the Previous one, Different Person and added statutes and circumstance

Letter to Guardian Diana Lewis, Formerly Judge Diana Lewis, Demanding that she Cease and Desist Illegal Guardianship, Turn over Documents, and Correct All Fraud.

Attorney Alan Rose, Ted Bernstein, Diana Lewis and more seem to be involved in Massive Fraud on the Courts and violations of Rights. 

Read the Document Below
Full Cease and Desist Letter Regarding Florida Guardianship

Sunday, 9 July 2017

Guardianship of the Infantilized Elder: A Pipeline to the Institution Industrial Complex? by: Robert Fettgather

Chronologies for aging move, by clocks and calendars, from past to future across the lifespan. But not without exception. When it comes to social status for some individuals, time seems to reverse course. Teenagers demanding adult status complain relentlessly over being treated like a young child. We notice a helicoptering parent, babying a third grader with smothering overprotection. This phenomenon has been referred to, psychodynamically, as infantilization-treating an individual as if they were much younger than their chronological age.

 Earlier in my career, I became interested in the ways that adults with intellectual disability were infantilized, patronized, and robbed of their autonomy (Fettgather, 1987), including how they were given double-binding mixed messages to act like an adult even as they were treated like children (Fettgather, 1989). I am now turning to questions of how elders, especially those experiencing impairments associated with aging, may be diminished by practices associated with a similar social construct.

In recent years, I became acquainted with a legal device, “plenary guardianship”, wherein guardians retain all rights, powers and decisions over wards who are believed to lack capacity to care for themselves. This device seems to mirror the psychosocial experience of infantilization, but with potentially more devastating and permanent consequences.

Based on a concept of parens patriae (parent of the nation) dating back centuries, the king had an explicit duty to protect those presumed to lack the capacity for managing their own lives-state sanctioned infantilization. Similarly, the contemporary “plenary guardian” is deemed ‘parent to the elder’ (or intellectually/psychosocially disabled person) who has been determined to lack adult capacity in a socio-legal construction of perpetual infancy-childhood. Plenary guardianship takes all decision-making from the ward and places it in the hands of an all powerful guardian.

In the spring of 2014, I attended the 3rd World Congress on Adult Guardianship. The conference highlighted worldwide, growing concerns and critiques of plenary guardianship. Many contemporary deconstructions of guardianship suggest that too often it is undue, overbroad and overprotective (Martinis, n.d., One Person, Many Choices; Blanck and Martinis, 2015).

I argue that even benevolent guardianships may infantilize, fostering dependence and regression. And for elders of means, there is considerable anecdotal evidence of forced isolation with estate plundering by public and professional guardians. US Government Accounting Office Reports (GOA) beginning in 2004 (Government Accountability Office, 2004), and subsequent reports through 2012, show consistent patterns of financial exploitation and neglect. For example, one guardian embezzled $640,000 from the estate of an 87 year old man with Alzheimers Disease. Protective services discovered the man residing in a filthy basement and wearing just an old shirt and a diaper.

Beyond property, the very body of vulnerable elders becomes a commodity in an institution industrial complex that unites private business with government interests with an emphasis on profit making and social control (similar to the prison industrial complex). For example, Liat Ben-Moshe (Ben-Moshe, n.d., The Institution Yet to Come) emphasizes the nexus of impaired mind-bodies with an institution industrial complex dedicated to careerism: “political economists of disability argue that disability supports a whole industry of professionals that keeps the economy afloat, such as service providers, case managers, medical professionals, health care specialists etc”.

With the absolute authority of a plenary guardianship, the concern is that guardians may force institutionalization into nursing home facilities where profit is the bottom line-a kind of pipeline into the institution industrial complex. Charlene Harrington, researcher at UCSF investigating care at nursing homes, summed up her findings, “Poor quality of care is endemic in many nursing homes, but we found that the most serious problems occur in the largest for-profit chains” that keep costs low to increase profits (Fernandez, 2011). A 2015 study at Hunter College also found that 12% of guardianships were initiated by nursing homes as a means to collect debt from residents (Bernstein, 2015).

With my colleague, Linda Kincaid, we have addressed elder rights to be free from plenary guardianships leading to chemical restraints (Fettgather and Kincaid, 2013) and forced isolation (Kincaid and Fettgather, 2014). Isolation is often achieved by limiting or denying visitation to hide poor living conditions or inadequate care from public scrutiny. Our current project, at the Coalition for Elder and Dependent Adult Rights, juxtaposes reports of guardianship abuse in GAO Reports and other sources with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). The project considers current problems in guardianship and institutionalization against criteria of the UNCRPD that seek to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedom by all persons with disabilities and to promote respect for their inherent dignity”.

We contrast guardianship abuses with UNCRPD articles for equality, privacy, justice, liberty, and freedom from exploitation and torture. In particular, we place special emphasis on Article 12, equal recognition before the law. Article 12 says that “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.” Our concern is that plenary guardianship fails the standard of equal recognition before the law, and that alternatives must be vigorously pursued.

In that regard, we align ourselves with an international group of stakeholders who believe that incapacity should not be presumed (Dinerstein, 2012). Alternatively, we are committed to the presumption of capacity and to advancing supported decision-making as an alternative to plenary guardianship for elders and people with intellectual and psychosocial disabilities. In this model, decisions, supported by one or more persons, are made by the individual who has ultimate authority over his/her life. Personhood is honored, with no one acting as surrogate parent.

We believe that this approach, with appropriate safeguards, oversight and subject to regular review, will disrupt the pipeline from guardianship to institution industrial complex. It will help reset clocks and calendars for heretofore infantilized adults and restore dignity, autonomy and adult status to the decision-making process."


Guardianship Disputes

"The majority of guardianships created in Texas are established and maintained without any real argument. However, there are many times when an interested party may challenge creating a guardianship, or when additional involvement may be necessary in maintaining the guardianship. There may be concern about the incapacitated person’s degree of incapacity, the guardian’s right to serve or the actions that they have taken with respect to their ward’s person or property. Among the types of claims often made in this area are:

Contests to a Finding of Incapacity;

Challenges to the Suitability of a Guardian
Actions to Remove and Replace a Guardian;

Actions to Recover Property from a Guardian;

Actions in Surcharge Against a Guardian’s Surety;

Actions Involving Issues of Elder Abuse; and
Actions Involving Issues of Financial Exploitation of the Elderly.

Contested guardianship proceedings share many of the same features as other civil lawsuits, although they also have their own set of specialized rules and practices. They are often commonly referred to as “pre-death will contests.” Because they can be litigated so fiercely–and because the proposed ward’s estate can be used to pay the litigants’ attorney’s fees–contested guaridanships can significantly drain the proposed ward’s resources. Even those parties who are unsuccessful in being appointed as guardian can, if certain criteria are met, recover their reasonable attorney’s fees, out of the ward’s estate. It is common for families often split into multiple dueling factions, each supporting a different applicant or contestant. Guardianship Attorney Dallas

To understand contested guardianships, it is important to first learn some key terms commonly used in guardianship proceedings.

The applicant–the person applying to be appointed as guardian.

The contestant–the person opposing the applicant from being appointed as guardian.

The proposed ward–the person over whom the guardianship is sought.

The attorney ad-litem–the attorney the court must appoint to represent the proposed ward.

The guardian ad-litem–the attorney the court may appoint to advocate for the proposed ward’s best interests.
The Court investigator–the county employee who investigates the circumstances of the guardianship and reports their findings to the court.

The guardianship of the estate–refers to the proposed ward’s property (finances and property management).

The guardianship of the person–refers to the proposed ward’s person (medical, clothing, and shelter).
Common Ways to Contest a Guardianship

Most contested guardianship proceedings revolve around the three issues:

Is the proposed ward incapacitated as defined by the Texas Probate Code?

Is the person applying to be guardian qualified to serve as guardian?
Does the party bringing or contesting the guardianship application have the requisite legal standing?
Generally, the parties can agree that a guardianship is necessary because the proposed ward is incapacitated and no least restrictive alternative is available. The dispute often turns on who will have control–i.e. who will be the guardian. These disputes can be especially protracted among applicants who enjoy the same degree of statutory priority to serve as guardian (i.e. siblings).

Key Evidence

Evidence used in a contested guardianship proceeding falls into two broad categories:  (1) evidence used to establish incapacity; and (2) evidence concerning an applicant’s ualification to serve.

Incapacity. In permanent guardianship proceedings, incapacity is most often established through using formal medical evidence, such as a physician’s letter (commonly called a “doctor’s letter”). In an uncontested dispute, an applicant will usually use a doctor’s letter, which is much easier to secure than live expert testimony.  A doctor’s letter is hearsay, however, and in contested proceedings, the court will likely exclude it upon proper objection. In that case, it will be necessary for the physician to appear in court and testify about the proposed ward’s mental condition. A doctor’s letter must be: (1) Dated within 120 days from the date the applicant files for guardianship; and (2) based on an examination that was performed within 120 days from the date the applicant files for guardianship. Medical evidence that precedes the guardianship application by more than 120 days may be susceptible to evidentiary objections.

If the physician testifies, then at a minimum, the physician:

Should be qualified in the medical field relating to the proposed ward’s incapacity;
Should have sufficiently examined the proposed ward recently to be able to form a reliable opinion about the ward’s mental capacity.

Lay witnesses may also give their opinion about the proposed ward’s mental abilities. The witnesses must provide the facts upon which their opinion is based, or the Court will not consider their opinion.  The witness should testify about their observations of the proposed ward–particularly the proposed ward’s ability to perform the activities of daily living, and other behavioral patterns questioning mental capacity.  Incapacity cannot be based upon isolated instances of behavior.  Accordingly, evidence should be presented over as wide a time period as reasonably necessary.

Incapacity is usually established through a combination of facts. The following list provide some examples of facts that may be used to establish the proposed ward’s substantial inability to feed, clothe, or shelter himself:

 Loss of significant weight;
Torn or ragged clothing;
Inability to chose daily attire;
Making clothing choices inappropriate for weather;
Inability to secure residence;
The doors are never locked or cannot be locked;
The proposed ward lets anyone in the house;
Inability to operate stove/gas safely;
Inability to maintain house;
The house is not properly heated or cooled;
The house is without utilities;
The house is cluttered or smells;
The house has a significant pest problem; and
The house is otherwise “falling in”.
The following facts may help establish the proposed ward’s substantial inability to care for his physical health:

Lack of personal hygiene;
Failure to recognize medical needs;
Failure to visit the doctor to address medical needs;
Lack of short-term memory;
Disorientation as to time and place;
Refusing care;
Inability or refusal to administer medications;
Failure to resist negative influence of others;
Repeated falling; and
Repeated wandering.

The following facts may help establish the proposed ward’s substantial inability to manage his financial affairs:

Inability to perform basic mathematical computations;
Inability to perform daily money management;

Inability to understand extent of assets;

Failure to follow simple commands in financial transactions;
Inability to write out checks;

Inability to pay bills;

Unawareness of unpaid bills;

Giving away substantial amounts of property; and
Being abused or taken advantage of financially by a third party.

Qualification.  The person applying to become the guardian must be eligible to act as guardian and be entitled to appointment. If the person applying has a criminal history, especially a criminal history involving sexual offenses, then he or she will have significant problems in being appointed. It is presumed not to be in the ward’s best interests to appoint a person as guardian if the person has been finally convicted of any sexual offense, sexual assault, aggravated assault, aggravated sexual assault, injury to a child, to an elderly individual, or to a disabled individual, abandoning or endangering a child, or incest. The court analyzes the circumstances and considers the ward’s best interest in determining whom to appoint as guardian. Whomever the court appoints as guardian, that person must generally give and file an oath and post the required bond. In addition, if two or more persons are eligible and equally entitled to serve as guardian, the court will:

First, appoint the ward’s spouse to serve as guardian;

Second, appoint the ward’s nearest of kin.

The court must appoint the eligible person best qualified to serve as guardian:

If the ward’s spouse or the ward’s next of kin refuse to serve;

If there are more than one applicant that is related in the same degree of kinship to the ward; or
If neither the ward’s spouse or next of kin is an eligible person.

In certain situations, a “declaration of guardian,” which is a legal document the proposed executed before becoming incapacitated that expresses their desire about who they want to serve as their guardian, may trump the general priority rules.  For example, after the ward’s parent’s death or incapacity the court must appoint the person designated in a will or declaration of guardian to serve as guardian in preference to those otherwise entitled to serve as guardian unless the designated guardian is dead, refused to serve, or would not serve the ward’s best interests. Different priority rules apply to minors.

If the parents live together:

Both parents are the natural guardians of the person of the minor children by the marriage, and one of the parents is entitled to be appointed guardian of the children’s estates.
If the parents disagree as to which parent should be appointed:

The court shall make the appointment on the basis of which parent is better qualified to serve in that capacity.

If one parent is dead:

The survivor is the natural guardian of the person of the minor children and is entitled to be appointed guardian of their estates.

The rights of parents who do not live together are equal, and the guardianship of their minor children shall be assigned to one or the other, considering only the best interests of the children.

Disqualification.  There are various reasons why a court may not appoint a person as a guardian. Because the trial court has broad discretion in determining who to select as guardian, it can often be difficult to predict which competing applicant the Court will select–if one of them is selected at all.  Because the trial court also has the option to appoint a neutral third party as guardian, many guardianship disputes are settled out of court.  Few parties want to risk the court appointing a “non-family” member to care for the proposed ward. The most common reasons and facts supporting each reason are summarized below.

A person whose conduct is notoriously bad

In Texas, the trial court has broad discretion in determining whether an applicant’s conduct is “notoriously” bad.  Factors a court might consider include: (1) an applicant’s history of drugs or alcohol abuse; (2) an applicant’s criminal history of dishonest crimes; and (3) an applicant with a history of violent, angry, or other abusive behavior.

A person asserting a claim adverse to the proposed ward or the proposed  ward’s real or personal property.

Texas courts have ruled that an applicant was disqualified from serving as guardian where the applicant claimed that the proposed ward’s property actually belonged to the applicant.

A person who, because of inexperience, lack of education, or other good reason, is incapable of properly and prudently managing and controlling   the ward or the ward’s estate

One Texas court held that an applicant was disqualified from serving as guardian where the applicant failed to comprehend the proposed ward’s needs or the costs of her care. Another court reached the same conclusion, where a surviving parent had not seen the proposed ward in over six years, his unannounced visits upset the proposed ward, and he had failed to attend counseling services that he agreed were necessary to gain the experience and knowledge needed to initiate visiting the proposed ward. Inadequate or negligent supervision can serve as a basis to disqualify someone from serving as guardian. In another Texas case, an applicant was disqualified where the applicant left the proposed ward at home alone, did not provide her with proper nourishment or medication, failed to pay nursing home expenses, and failed to follow through with recommendations form Adult Protective Services and with court orders.

A person, institution, or corporation found unsuitable by the court

This statutory provision serves as sort of “catch all” to disqualify someone who may not be strictly disqualified under another provision, but whom the Court decides in its discretion should not be allowed to serve as guardian.  Since the court has broad discretion in determining who should be the guardian, drug use has been used as a basis for disqualification. For example, an applicant was properly disqualified where the applicant was convicted for misdemeanor possession of marijuana approximately 5 years before the applicant sought guardianship.

Lack of standing.  Texas Probate Code section 642 states that a person who has an interest that is “adverse” to a proposed ward or incapacitated person may not:

File an application to create a guardianship for the proposed ward or incapacitated person;
Contest the creation of a guardianship for the proposed ward or incapacitated person;
Contest the appointment of a person as a guardian of the person or estate, or both, of the proposed ward or incapacitated person; or

Contest an application for complete restoration of a ward’s capacity or modification of a ward’s guardianship.

The court determines by motion in limine a person’s standing who has an adverse interest to a proposed ward or incapacitated person. What does it mean to have an adverse interest to the proposed ward? In essence, the court can determine whether or not the person has the right to even ask the court to create a guardianship.

Many of the items that would disqualify an applicant from serving as a guardian would also serve as an “adverse interest” to the proposed ward.  Not every disqualification will automatically act as an adverse interest so as to preclude standing. For example, a person who is indebted to the proposed ward may still participate in the guardianship proceeding even though he or she may be disqualified from serving as guardian. Such a person may still be eligible to serve as guardian of the proposed ward’s person, although he or she may be disqualified from serving as guardian of the proposed ward’s estate.

Practical Advice & Concerns

Anyone seeking a guardianship should:

Be qualified.  It is important that someone applying to be a guardian fully disclose any and all facts to their attorney at the outset of the case that may disqualify them from serving as guardian.  Bad facts are bad facts, but when these bad facts are revealed for the first time in front of the judge or jury, the likelihood of success plummets.  Ideally, the applicant should:

Not owe the Proposed Ward any money;

Not have a criminal or drug history;

Not have filed for bankruptcy;

Not have an adverse claim against the Proposed Ward or their property;
Be capable of taking care of the Proposed Ward and their property; and
Not have taken advantage of the Proposed Ward or their resources.

If there are any questions about qualification, the Applicant should also request in the application that if the Applicant is not appointed, then in the alternative, that the court appoint another suitable person.

Prequalify for a Bond.  Before filing the application, the Applicant should determine the amount of the bond for which they can prequalify.  The Court will require a bond in every guardianship of the estate.  The bond is a type of insurance policy that covers the performance of the guardian’s duties and protects the Ward’s estate from abuse or negligent loss.  The amount of the bond is typically based upon the Ward’s liquid assets.  Prepared Applicants will know ahead of time whether or not qualifying for the anticipated bond will be problematic.

Cooperate and be courteous to the Court Investigator and the Attorney ad-litem.  During the course of a guardianship, the Court Investigator will contact the Applicant and visit the Proposed Ward.  The Attorney ad-litem will also contact and visit the Proposed Ward.  Our courts rely heavily on the Court Investigator and their observations and opinions.  To a large degree, the courts also lend great credit to the Attorney ad-litem.  Accordingly, it is smart to be courteous and cooperative with the Investigator and Attorney ad-litem, to put the Applicant’s best foot forward. "


Friday, 7 July 2017

Solution to guardianship crisis? Advocates say cap fees

"Despite a new state law and local safeguards, such as a fraud investigator, advocates for guardianship reform say the system remains broken — almost hopelessly so.
Without serious changes, unethical court-appointed guardians and their attorneys can operate with impunity, draining bank accounts of seniors and isolating them from loved ones. And if the judiciary is compromised, there’s no stopping the abuse, advocates say.
Solutions are complex but reformers focus on three areas: putting a cap on fees, drafting a type of Bill of Rights for seniors that will give them and their families more say in guardianships and giving the state the power to weed out bad actors. A bill reintroduced in the Legislature for the current session would for the first time give the state real regulatory authority over guardians.
And there’s good reason to reign in the professional guardianship industry in Florida, which saw a boom after the last recession. The number of registered guardians swelled from 108 in 2003 to 457 last year, according to the Department of Elder Affairs.
“Guardianship is a business and it’s a big business and it’s tremendously profitable,” said Dr. Sam Sugar, co-founder of Americans Against Abusive Probate Guardianship.
No amount of legislation will do anything, however, if judges refuse to take advantage of the laws to crack down on unethical guardians.
In The Post’s recent stories about Judge Martin Colin and his wife, guardian Elizabeth “Betsy” Savitt, families of seniors in guardianship say in court documents and interviews with The Post that Savitt took advantage of her position as a guardian. They said the judge’s wife went after the life savings of their loved ones through unnecessary litigation, double-billing and taking fees for herself and her lawyers without prior court approval.
Right now, the Department of Elder Affairs can do little about unscrupulous professional guardians.
“The department does not have any authority over professional guardians,” said spokeswoman Ashley Chambers. “This is a profession that we do not regulate and have no jurisdiction.”
The pending bill seeks to address this. Senate Bill 232, sponsored by Sen. Nancy Detert, R-Venice, would create the Office of Public and Professional Guardians under the Department of Elder Affairs and give it oversight of professional guardians. The executive director would develop and enforce standards for professional guardians.
The office would regularly monitor guardians’ activities and do reviews that are different from the annual financial audits that the Clerk & Comptroller’s Office does. It also would investigate complaints about the guardians. If an investigation finds the complaint is justified, the executive director could discipline the guardians, including revoking their registration, which would make them ineligible for court appointment.
“Somebody has found a cottage industry, and they are not targeting the poor people,” Detert was quoted by The Florida Bar News last year.
Capping fees
But advocates say the reforms need to hit unscrupulous guardians and their attorneys in the pocketbook in order to dampen the current profit motive in guardianships.
Among the most radical solutions proposed in Florida is a constitutional amendment to cap the fees of guardians and especially their attorneys. If guardians can’t keep going back to a seniors’ account for money, they’ll be motivated to block unnecessary legal work and get their own work done more efficiently, advocates say.
Fees for professional guardians are set by the judicial circuit in each county. In Palm Beach County, it ranges from $50 to $95 per hour, guardians told the Post. Attorney fees, though, routinely range from $250 to $450 an hour, and guardianship cases are replete with lawyers.
The guardian, the ward and various family members may all be represented by lawyers who seek to be paid out of the savings of the incapacitated individual. A conference call with all the stakeholders can easily run $1,000 an hour, turning routine matters into a money machine for the lawyers involved.
Americans Against Abusive Probate Guardianship is considering ways to gather more than 680,000 signatures needed to put such a measure on the ballot to change the Florida Constitution.
“If you have a cap on the fees, there is going to be less guardianships, not as much abuse and the elderly will be able to stay with their families,” said Lidya Abramovici, a co-founder of the Aventura-based group. “That is the way it is in other countries.”
Caps could be fashioned after state laws that limit the amount of money attorneys can collect in medical malpractice cases — possibly 30 percent of the senior’s annual budget or 5 percent of the senior’s assets. The group’s proposal also would limit payments to one attorney, Sugar said.
Some professional guardians, however, striving to do their best for a senior while working with often-conflicting family members, object to the proposal.
Fernando Gutierrez, a director of the Guardian Association of Pinellas County, said capping fees would be arbitrary and capricious because fees for guardians vary from county to county.
“Maybe, it’s time for a uniform fee schedule,” he said. “The major drawback to this system is making revisions that reflect fair compensation amounts. Capping guardian fees would make sense, only if a Florida statute would require the chief judges of each district to review and implement new fees every five years.”
Sugar said it is up to the judges and prosecutors, though, to order penalties. “We desperately need prosecution of the worst offenders to set an example and dissuade others,” he said.
Let seniors decide
To offset problems that can arise when a guardian takes charge, a reform gaining national attention is called “supported decision-making.”
It lets seniors decide where they live and how much financial help they need through a type of Bill of Rights. The approach automatically considers alternatives to guardianship, such as giving a family member power of attorney. Texas and other states are considering incorporating the approach into guardianship laws.
Even the United Nations has chimed in, stating, “With supported decision-making, the presumption is always in favor of the person with a disability who will be affected by the decision.”
“It needs to be translated into state legislative statutes,” Sugar said.
But Jetta Getty, former president of the Florida State Guardianship Association, said current laws are enough and that the industry is being unfairly maligned.
“Less than 1 percent of professional guardians have any black marks or infractions,” the Daytona Beach professional guardian said. “This is a judicial problem. I believe statutes already present give the courts full authority to rectify the problems that are being highlighted.”
Local fraud investigator
On a local level, Palm Beach County Clerk and Comptroller Sharon Bock established a fraud hotline and hired an auditor in 2011 to look into complaints. The clerk’s inspector general audits and investigates professional guardians, non-professional guardians, family members, attorneys, caregivers and anyone else suspected of exploiting a person under guardianship.
Bock’s office says it has investigated more than 900 cases and uncovered more than $4.5 million in questionable expenditures.
“Even a small amount of fraud is really intolerable,” Bock said. “When we get to the point that all guardians are invested in the outcome of protecting the ward, then we have really reached our goal.”
Sugar said he routinely hears complaints from Palm Beach County about professional guardians.
He said it is important for the public to understand that when a senior is put under plenary guardianship that they lose all rights, that they are “dead in the eyes of law.” The guardian can determine where they live, how they spend their money and — most importantly — their medical care.
“It just seems like every day we hear about something more egregious,” said Martha T.S. Laham, author of The Con Game: A Failure of Trust. “It’s a matter of the individual’s basic rights. They strip these from them in a matter of minutes and reduce them to the status of an infant.”
Easy to qualify
Laham, a professor at Diablo Valley College in Pleasant Hill, Calif., said some states are toughening qualification standards for guardians. Savitt was a tennis pro and became a guardian after 40 hours of training, a test and a credit and criminal background check.
Guardians need to be monitored much more strictly. Judges need to look at the credentials of guardians prior to appointment and then follow up to make sure the senior’s finances aren’t being abused, she said.
There are ways for families and seniors to protect themselves from falling prey to predatory guardianship. That is to set up a defined power-of-attorney and pre-need directives for the senior long before senility sets in. Some advocates claim that such planning would eliminate the need for guardianships for the vast majority of seniors.
How do these thwart aggressive professional guardians? Families only need to look to the precedent-setting Palm Beach County case of J. Alan Smith recently decided by the 4th District Court of Appeal in West Palm Beach.
The appellate court found that Smith’s pre-need directives naming his new wife, Glenda Martinez, his health-care surrogate trumped all of the claims of the guardian and his attorney. The guardian successfully sought to annul the marriage but not the pre-need directive.
“That decision was badly needed in guardianship law here in Florida,” said Martinez’s attorney, Jennifer Carroll. “The personal wishes of the ward somehow disappear over time and become irrelevant in the guardianship proceeding and all the players in the system lose sight of that fundamental principle.”
Guardians’ side
Guardian-advocate Gutierrez challenged Sugar to a debate on Oct. 19 in Clearwater, where families and professional guardians squared off.
While the industry needs reform, he said Sugar’s group is too eager to depict every professional guardian as a gold digger. He said there are fewer than 100 complaints to the state about guardians.
“Are there bad guardians? You betcha,” Guiterrez said. “But there are bad everything. Bad reporters. Bad doctors.”
Still, Gutierrez conceded there is too much focus on the financial responsibilities of guardians and they need more training to do a job that is often done by professionals who went to school for years.
“The court is more interested in the money rather than the health and welfare of the patients that they call wards,” he said.
A guardianship, he said, should be a last resort after all other avenues have been exhausted.
Palm Beach Guardians attorney Thomas Dougherty challenged many of Savitt’s actions in the guardianship of Lorraine Hilton, and the judge’s wife resigned as guardian.
He first experienced the fee frenzy in guardianship cases when representing a mentally handicapped man a few years ago.
“That’s why I encourage clients to avoid guardianships if at all possible by either setting up trusts or powers of attorney or other methods,” he said. “The system can be very frustrating and end up hurting those it was intended to protect and benefiting those who are supposed to be protecting the wards.”