Entertainment, Health and Lifestyle

The Elder Guardian Trap Continues To Be A Problem

By Diane Diamond,  RealClearInvestigations

Lillie White, an octogenarian from Palm Coast, Florida, went missing in August 2016. She was last seen at a doctor’s office where her niece Sheila had taken her for a checkup. Sheila was confused when an assistant called her into a back room to fill out more medical forms for her aunt, but she complied. When she returned to the waiting room, Aunt Lillie was gone. Sheila was told she had been escorted from the office by a court-appointed guardian who had refused to reveal where she was taking the 88-year-old.

Sheila and White’s other relatives quickly discovered that her sole granddaughter, who had been removed from White’s will, had convinced a court to make the retired educator, with at least $4 million in assets, a ward of the state.

More than two years would pass before Lillie’s anguished loved ones learned from a private investigator that she had been placed in the Brookdale Assisted Living/Memory Care facility in Volusia County, Florida, 35 miles north of her home. To this day Lillie is housed inside a locked unit for patients with dementia, an ailment her family insists she does not have. The relatives say she was not informed when her guardian sold her cherished home in Palm Coast and liquidated other of her assets to pay the hourly fees of the guardian, a court-appointed lawyer and other experts a judge had assigned to White’s case.

Lillie White’s case is not unique; it illustrates problems with guardianship that have been impervious to reform for decades — and that are growing with the expansion of the elderly population and opportunities to prey upon them.

Although there is no national database, the best estimates put the number of Americans living under court-initiated guardianships at between 1.3 and 1.5 million people, with net worths valued collectively at more than $50 billion.  Under guardianships, people deemed incompetent by a judge surrender control of their finances and all important life decisions to guardians collecting fees from the funds of the “protected persons.” Guardians typically charge from $95 to $400 an hour. They are empowered to employ any number of helpers – brushing aside family members willing to help – from personal shoppers and dog walkers to landscapers and home health-care nurses. Allegations of abuses and cronyism are frequent.

“It’s so easy for a nefarious person to operate in and around guardianship,” says Dr. Sam Sugar, founder of the Florida-based advocacy group Americans Against Abusive Probate Guardianship.  “It’s no wonder there is no firm data on what’s happening or how many people it affects. It is a racket.”  Sugar was caught up in a contentious guardianship battle involving his mother-in-law in Dade County, Florida. As is frequently the case, that dispute was ignited by squabbling siblings, one of whom took the family disagreement into the courts.  Sugar outlines both the problems and possible solutions to unwanted guardianships in his book, “Guardianships and the Elderly – the Perfect Crime.”

In many cases nationwide, court-ordered guardianships work well, with dedicated professionals or family members assuming responsibility for vulnerable seniors. But the money involved and the wide-open nature of many state statutes – which allow not only family members but any adult to launch competency hearings – have led to the rise of a closed and secretive industry of elderly exploitation.

Exploitative guardianships are a stubborn outlier in efforts to combat elder abuse. The public first became aware of the problem in 1987 after a six-part exposé by the Associated Press involving reporters in all 50 states and the District of Columbia. Congressional hearings were held but no lasting reforms were enacted. Thirty years later Congress unanimously passed and President Trump signed into law the Elder Abuse Prevention and Prosecution Act. The 2017 legislation provided for the naming of more than 90 prosecutors and “elder justice coordinators” nationally to go after those committing elder abuse, including in guardianship cases.

But more than a year later, high-level frustration with the guardianship problem is clearly evident. At a November 2018 congressional hearing on the guardianship system, Sen. Richard Blumenthal (D-Conn), a co-sponsor of the 2017 law, seethed.  “I don’t need any more information,” he said. “I’ve seen how the system works in Connecticut. … The impact on families is enormous.”

Blumenthal said he hears over and over again from upset constituents with guardianship complaints. Some Connecticut probate judges who make life-altering legal rulings in such cases have never gone to law school, he complained. “They often have a fiefdom, their own kingdoms, and they make a ton of money.”

“In too many cases, the system lacks basic protections, leaving too many Americans vulnerable to exploitation,” agreed Sen. Susan Collins (R-Maine), the current chair of the Special Committee on Aging. She promised more investigation and legislation.

Antoinette Bacon, the assistant U.S. attorney responsible for guardianship investigations under the new law, would not comment for this article.

Elaine Reniore, president of the National Association to STOP Guardian Abuse, says widespread apathy is at the core of the abusive guardian system. “We don’t care about our seniors, society on the whole just doesn’t care,” she said during an interview from her home in Indiana. “What we’ve done is separate ourselves from the problem by putting them in nursing homes.  Seniors are basically not good-looking and cute like puppies and kittens. … Old people are in the way.”

Reniore, whose grandmother was placed into an unwanted guardianship after a family disagreement in 1994, does not believe the solution to abuse lies with the federal government; her group lobbies state lawmakers, urging passage of its “right to association” bill.  It prohibits court appointees from indiscriminately banning visits with wards from family members, who are often the best defense against unscrupulous activity. So far, seven states and the Virgin Islands have passed some version of it.

Advocates argue that since taxpayers fund their state court systems, guardianships should have greater transparency. But often the protected person’s right to privacy takes precedence.  It is up to judges to police their appointees, but funds to monitor them are scarce, and judges are often little inclined to keep track of what guardians or attorneys are doing or spending on behalf of the ward.

“Judges, they push everything through,” said Hillary Hogue, who successfully fought a long battle to keep her father out of an unwanted guardianship. “They are the epitome of the disinterested.”

Rick Black, founder of the Center for Estate Administration Reform, says Florida is a microcosm of all that is wrong with the guardianship system in America. It is therefore No. 1 on his list of states that should not be considered for retirement.

“There isn’t one agency there that has done anything for any of the families I counsel, not one decertification [of a guardian], not one prosecution,” Black said.  “This in a state that has more retirees, and more complaints, than any other.”

Renoire agrees. Of the five or six complaints of abusive guardians per day that her group receives, “we get a lot of complaints from Florida first, then Texas,” she said. “Any state that’s called a ‘retirement state’ is where the old folks are concentrated and that’s where problems crop up.”

Florida – which according to Kiplinger Personal Finance magazine has at least 3.5 million residents 65 and older, with another 1,000 or so moving to the state every day — is beginning to address the problem.

Palm Beach County Clerk Sharon Bock says guardianship abuse came on her radar in 2008. While overall crime statistics declined during the economic recession, she noticed a marked uptick in criminal complaints against guardians. Bock and her deputy inspector general, Anthony Palmieri, established the country’s first elder hotline and quickly realized guardianship complaints were a nationwide problem.

“Anyone who Googled ‘problems with guardianship’ or ‘problems with wards of the court’ — we came up first,” Bock said. “We were the only game in town, the only game in the whole United States.”

Back then, each of Florida’s 67 county clerks were responsible for dealing with guardianship issues in their own county. It wasn’t until 2016 that lawmakers established the statewide Office of Public and Professional Guardians.

But critics say Florida’s law is too little too late. Today, more than two years and 500 hotline complaints later, responding to  guardianship grievances remains difficult and cumbersome, according to Palmieri. In a state with 550 registered guardians, he says, the task is enormous.

“Each complaint may have numerous allegations,” Palmieri explained. “One had 44 allegations and we had to systematically go through every one to see if they could be substantiated. It takes a long time.”

“There’s got to be proof,” Bock said. “Otherwise it would just be a lynch mob. Why does a family member make 44 allegations?” she asked.  “These family members are sometimes their own worst enemies.”

Critics point to a series of recent high-profile elder guardian scandals as evidence that Florida remains unwilling to confront the problem. Among them:

  • Palm Beach County Guardianship Judge Martin Colin was found to have convinced a lawyer who practiced before him to help his wife, tennis instructor Elizabeth Savitt, enter the lucrative professional guardian arena. The judge then funneled cases to that lawyer with the understanding that Savitt would be appointed guardian. Other judges also reportedly colluded to favor Savitt.  After numerous family complaints about Savitt’s behavior, the Office of Public and Professional Guardians filed its first administrative complaint against her in January 2018. An administrative law judge heard the case and in December 2018 ruled the complaint should be dismissed. That decision is currently under appeal. In the meantime, Savitt continues to operate as a registered guardian in Florida. Her husband retired from the bench in December 2016. Attempts to reach Savitt and Colin were unsuccessful.
  • In August 2017 a federal court jury awarded an unprecedented $16.4 million to Julian Bivins, the son of a Texas oilman whose estate was found to be ill-served and overbilled by two West Palm Beach attorneys. That happened after the father, Oliver Bivins, at age 93, had simply travelled to Florida to check on a condominium he owned and was caught up in an exploitative guardianship. The case dragged on for six years. At one point the same Palm Beach guardianship judge, Colin, openly praised the offending lawyers, Brian M. O’Connell and Ashley N. Crispin, and refused to sign an emergency order filed by one of the elder Bivins’s court-appointed guardians that would have allowed him to return to Texas. Ultimately, after an expensive court battle, Julian Bivins won his father’s freedom and took him home to Texas. Oliver died there 35 days later.
  • Professional guardian Fernando Gutierrez, 58, a former director of the Guardian Association of Pinellas County, was accused of financially exploiting at least two elderly people in his care at hospitals, nursing homes and assisted living facilities.  A Pinellas County Inspector General’s Office investigation found, among other things, that Gutierrez “parks in physician parking spots, then puts on a white lab coat” before entering the facility and allegedly coercing the vulnerable to sign papers assigning to him power of attorney or making him beneficiary to their bank accounts and insurance policies. One police report quoted hospital staff as saying Gutierrez appeared to be trolling for patients for whom he did not have legal guardianship. Another hospital alleged Gutierrez unlawfully authorized surgery for a patient. When the Florida Attorney General’s office had him arrested in June 2017 Gutierrez was reported to be the legal representative for more than 50 people. An attorney for Guiterrez says: “He has no previous criminal history.  He is presumed innocent. We look forward to presenting the case in court.” The trial is set for June 2019.
  • Rick Black of the estate reform center is currently counseling several Florida families lodging complaints against guardian Traci Samuel in both Pinellas and Hillsboroughcounties. He alleges that Samuel isolates her wards from loved ones and friends and takes legal steps, such as filing restraining orders, to punish those who question her behavior. Court-stamped documents also list several of her wards’ properties that were sold for well under market value. The Pinellas County Circuit Court docket shows Samuel has been named as guardian to about 50 Floridians. In a telephone interview, Samuel defended her actions as being centered on what she sees as quality care for her wards. She insisted that all real estate transactions made on behalf of her wards have been approved by the court.

Black says he has spent many hours on one particular case under Samuel’s control, that of 84-year-old Gentye Dirse, who for nearly 40 years operated a small, popular motel near St. Petersburg Beach. The Dirse case highlights that anyone – even a mere acquaintance or non-relative – can file a court petition to establish a guardianship.

In late January 2018, a local real estate agent, Diana Sames, quietly filed the first court document for guardianship of Gentye Dirse – a Petition to Determine Incapacity. Dirse’s young great-nephew, Gedi Pakalnis, who moved from his great-aunt’s native Lithuania to help Gentye run the complex some 15 years ago, says Sames was “always pestering my great-aunt to sell her property.” Neither Dirse nor her great-nephew were aware of the document filing.

Sames’ paperwork said she had seen a decline in Dirse’s “memory and orientation as to people and things around her” and asked the court to appoint Samuel as the guardian. As proof of her claim, Sames cited a recent real estate transaction between the elder Dirse and her great-nephew in which she had sold a home on her property to him for $50,000, well below the market value of $500,000.

Gedi Pakalnis told RealClearInvestigations he believes Samuel and Sames colluded to get what his great-aunt was unwilling to sell them – a desirable property just steps away from St. Petersburg Beach. He also insisted that his great-aunt initiated the sale of the home to him to ensure he would stay close to help with the motel as she grew older.  Sworn affidavits from a neighbor and a frequent motel guest support Pakalnis’s assertions.

As a neighbor wrote to the court in early 2018, “[The agent] kept asking Geny [sic] about selling the property,” and when Ms. Dirse refused, the agent “showed up with another lady trying to get Geny [sic] to sign some papers. I was in the house when this took place.”

Contacted by phone, real estate agent Sames vigorously denied that she had designs on Dirse’s half-million-dollar complex and said she was only trying to help protect the elderly woman because “she was so very vulnerable and confused.” Sames expressed deep suspicion of Pakalnis’s motives and called him a “con man.”

Sames’ guardianship petition was successful.  Mrs. Dirse was declared incapacitated and Traci Samuel was appointed as Dirse’s guardian in April 2018.  Four months later, the elderly woman was removed from her property and involuntarily placed in an assisted-living facility.  Pakalnis has been allowed to see his great-aunt just once, in November 2018.  Although Judge Pamela Campbell said in open court in mid-December that Pakalnis should go see Mrs. Dirse for the holidays, guardian Samuel said during the phone interview that he was turned away because he was accompanied by two unapproved visitors who are outspoken guardian activists.

In early January 2019, Samuel petitioned the court for a temporary restraining order to ban Pakalnis and the two others from visiting his great-aunt. That matter was later dropped. The guardian’s civil suit to void the property sale to Pakalnis is still pending.

Every court action activates both guardian and lawyer fees.  Court documents show that, in the first six months as Dirse’s guardian, Samuel, whose hourly rate is $350, charged fees to her ward’s estate totaling $30,404.50. Thousands more went to the guardian’s attorney and another lawyer the court had appointed to represent Dirse’s interests. Her estate is being charged to fight off her closest living relative.

‘Isolate the Victim’

“I have investigated or counseled over 100 Florida cases in the last four years,” Black said. “Abductions by the professionals are common.”  Their playbook seems to follow a sure pattern, according to Black, no matter which state is involved.  “It is always isolate the victim, defame legitimate heirs and protectors and liquidate the estate,” so the court appointees can have ready cash to pay their own fees.

Distraught Florida families suddenly caught up in guardianships are confused about where to turn for assistance. State agencies don’t come to the rescue, politicians say they can’t help, law enforcement is not allowed to step into court-involved civil disputes, so many in need of help turn to the legal community.  But those who have lived through the ordeal of having a loved one involuntarily forced into an unwanted guardianship say they are wary of those who specialize in the field.

Florida law gives any “adult person” the right to file a guardianship petition and question someone’s competency including a neighbor, real estate agent, business partner, unhappy lover or total stranger in a hospital or nursing home.  Dr. Sugar points to the case of the guardianship lawyer in Boca Raton, Florida, who filed a petition against Donald Trump during the presidential campaign. Attorney James Herb claimed Trump exhibited signs of histrionic and narcissistic personality disorder and asked a judge to order a competency examination to determine if he was competent to hold office.

“I’m scared … for myself and everyone in Palm Beach County, the state, the United States and the world,” Herb wrote.  The petition was denied.

Family video, 2016: During an unsuccessful, six-year fight to ward off
guardianship, Lillie White speaks against the system.

As for Lillie White, for two years her family reached out to myriad state agencies for help just to locate her.  The Office of Public and Professional Guardians’ statewide hotline for elder complaints was ineffective, the relatives said. A wide range of other agencies and officials – including the Florida Department of Elder Affairs, the Office of Public and Professional Guardians, Adult Protective Services, the Flagler County Sheriff, the offices of state Attorney General Pam Biondi, then-Gov. Rick Scott’s office and then-Sen. Bill Nelson – all provided a familiar response:  This is a civil matter, a judge has ruled, we cannot intervene. 

n a last-ditch move to free White from guardianship, her younger sister, Janie Sykes-Kennedy, filed a plea in December 2018 asking federal and Florida law enforcement authorities to open a criminal investigation into the case. But the nine-page plea indicates a defeat for White: It says her original guardian, Sara Caldwell, may have been replaced recently by her estranged granddaughter, Lisa Rene — described in the plea as the person “victimizing White for seven years.”

Rene, who lives in Maryland, did not respond to repeated requests for comment. Whether she now has control over White’s estate cannot be confirmed through the courts because of the secrecy that surrounds elder guardianship cases. Confidentiality is routinely ordered by judges and case files are sealed for “the protection of the ward,” as court insiders say.

After repeated requests for an interview with the executive director of the Office of Public and Professional Guardians, Carol Berkowitz, RealClearInvestigations was informed via e-mail from a subordinate in mid-January: “We are extremely busy with the transition to a new Governor in the State of Florida and are not doing interviews at this time.” After written questions regarding guardians Caldwell and Samuel were submitted, the office confirmed both are currently under investigation by state inspectors general. No disciplinary action or charges have been filed and both women continue to operate as professional guardians.

Samuel said she was unofficially told by an OPPG insider that there “was no merit to the complaint” against her. Caldwell, when asked about an investigation into her actions said, “I have been told that by the OPPG, by the Florida Major Crimes Unit, by various sheriff’s departments, by the U.S. Attorney’s office and by the FBI. I have been cleared.” On Feb. 21, a spokesperson for the Office of Private and Professional Guardians emailed regarding the Caldwell inquiry: “The OPPG investigation has not yet concluded.”

Terri Kennedy, another of White’s nieces, says she is using everything she learned as a Harvard graduate to continue to fight to free her Aunt Lillie from what the family sees as a fraudulent guardianship. They believe the case was mishandled from the start by a colluding group of guardianship regulars including the judge, various lawyers, for-profit court appointees and operators of the assisted-living facility.

Late last year, Terri and her mother, Janie, finally located Lillie and found a way to visit with her inside the locked ward.  They asked that details about how they achieved their reunion be kept private, but it was described as “emotional and wonderful.” But they worry that Lillie has been medicated, perhaps over-medicated, into involuntary compliance while at the facility.

“They try to say it’s a civil issue, but there are federal crimes being committed,” Terri Kennedy said. “Constructive fraud, racketeering, extortion, kidnapping.” She describes what happened to her Aunt Lillie, who is now 90, as “a legal lynching.”

Correction, Feb. 22, 2019, 7:30 A.M. Eastern

This article has been revised to reflect the following correction:

An earlier version of this article misstated the number of states with “right to association” laws prohibiting court-appointed guardians from indiscriminately banning family visits to their wards. Seven states plus the Virgin Islands have enacted such laws, not eight states.

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