Elder Guardianships: A Shameful 'Racket'

By Diane Dimond

February 20, 2016 6 min read

Betty Winstanley is a well-spoken, elegant and wealthy 94-year-old widow. And as she told me from her room at the Masonic Village retirement facility in Elizabethtown, Pennsylvania, "I feel like I am in prison. My life is a living hell."
Welcome to America's twisted world of court-appointed guardianships for the elderly.
Quick backstory: Betty and her husband, Robert, were married for 72 years. They had three children, Richard, David and Betsy. For nearly seven years, the couple occupied a "lovely" apartment at the Masonic Village retirement home in Elizabethtown.
In early 2014, Betty, who uses a rolling walker to get around, said she felt faint. Seeing no staff nearby she lowered herself to the ground. "They said I fell," she told me. "But that is a bad, bad word around here. Once you fall they decide you aren't capable of taking care of yourself anymore." Betty was sent to the medical section of the compound for rehabilitation after a small fracture was found.
Robert, a doctor of ophthalmology with a keen interest in aerospace medicine, took ill shortly after and was also transferred to the medical unit. Betty stayed with him but longed to return to her apartment.

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"They wouldn't let me," Betty said. Labeled as a resident who could no longer live independently, Betty was transferred to a smaller room where nurses could keep better track of her. Sadly, on June 16, 2014, Robert died of heart failure.
Within three weeks, the eldest Winstanley son, Richard, was in court claiming his mother needed a guardian to make decisions for her. Betty believes Richard was angry because she recently transferred her power of attorney from him to her other two children.
At this crucial initial hearing, Betty was without her hearing aids because the home collected them "for cleaning" and had not returned them. Still deep in grief, Betty was unable to understand the proceeding and her court-appointed lawyer never told her that she had the right to speak before the judge made a decision.
On July 17, 2014, Common Pleas Judge Jay J. Hoberg of Lancaster County, Pennsylvania, heard testimony from one doctor and one nurse from Masonic Village, and ruled that Betty was "a totally incapacitated person." This, despite the fact that two independent neuropsychologists who tested Betty declared she was of sound mind. Depressed? Understandably, yes. Affected by dementia or Alzheimer's disease? No.
Those conclusions didn't seem to matter. Betty was appointed a guardian — two, in fact — and immediately felt cut off from the rest of the world. Her family visits were curbed, her checkbook was taken and she was restricted from leaving the Village campus. Her guardian, Patricia Maisano, did not even let her leave the campus at Christmas.
"They make me feel like a piece of protoplasm on a deserted island," Betty told me. "I just want to move to an assisted living home in Annapolis, Maryland, so I can be near David and Betsy. I have no family around here except Richard, who rarely comes to visit."
Interestingly, Betty is not allowed to pay for her own lawyer from her $1.9 million estate funds. Her son David, a flight attendant, told the court he has spent his life's savings trying to help his mother escape the grasp of a legal system that is supposed to help the elderly.
Groups fighting to change contested guardianship laws call the system a "nationwide racket," wherein an all-powerful judge appoints a guardian who, in turn, can hire a local attorney, any number of merchants and service people and, as in Betty's case, the elder has no idea how their money is being spent. Betty only knows that her monthly apartment cost was about $3,300 and now she's charged $8,500 for her smaller, skilled-nursing-care room.
In the words of Dr. Sam Sugar, an advocate for elders in Florida, "The mantra of the guardianship system is litigate, medicate and take the estate."
I've read hundreds of pages of court transcripts and documents about Betty's case, and while there is much more to her story — including brothers who no longer speak and the prolonged focus in court on son David, who reportedly upset Betty in the past by yelling in frustration — there is really only one important takeaway. Betty wants to leave the place where her husband died and live closer to her family in Maryland. The reason she can't move? Pennsylvania won't let her go, despite a state law that says a guardian must take into account what the ward wants. Judge Hoberg, the ultimate arbiter, has allowed Betty's limbo to drag on for 18 months.
"I get the impression they just plan to wait her out until she dies," Betty's attorney, Candace Beckett, told me. "I've watched my client decline during this prolonged fight. ... She is like a flower who's dying on the vine." There is an appeal pending but that will take months to be heard.
This is what happens in America when the kids can't — or won't — agree on what's best for Mom. Shameful, on many levels.
To find out more about Diane Dimond visit her website at www.dianedimond.com. To read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

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What You Should Know Before Requesting a Third Party to be Named Guardian of Your Adult Child

Posted: 04/10/2014 1:02 pm EDT Updated: 04/11/2014 1:59 pm EDT

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A very sad article appeared on the Times Online recently entitled, "Who Knows Best? Dispute over disabled man's care magnifies guardianship's complexities." (Read it in full here.) The article recounts the story of Nancy Pantoni and her ongoing legal battle with the guardian of her adult, special needs son, Dominic.
The article's claims seem shocking. According to the article, Dominic's current guardian, the nonprofit Jewish Family & Children's Services of Pittsburgh, refuses to allow Dominic's mother to speak with him on the phone or to visit him more than one hour every month. She is not informed of his medical condition or even of his hospitalizations.
According to the article,

"She [Nancy Pantoni] said she feels decisions made by the guardian have been detrimental. 'His health has significantly deteriorated so much that I'm concerned for his life,' she said. 'I'm on a mission to save my son's life, I really am. I'll do anything.' "

Why was the nonprofit, and not Nancy Pantoni herself, appointed guardian of Dominic? The article explains that when it first became necessary for Dominic to move into a residential care facility paid for by the state, no openings were immediately available. Ms. Pantoni was apparently advised that a nonprofit agency might be able to get Dominic into a home faster than Ms. Pantoni herself could -- but only if that agency was appointed Dominic's guardian. (As a side note, this seems like speculation and I do not know if it is accurate. However, it is true that wait time for openings in residential facilities can be long, depending on one's locale.)
The nonprofit agency was then appointed Dominic's guardian. The agency did, in fact, find placement for Dominic in a group home. The agency has continued to serve as Dominic's guardian.
What is Nancy Pantoni's present goal? "'Ideally, I would like to be his guardian,' she said, 'and if that's not possible, at least have a guardian who will cooperate and honor family choices.' "
As an attorney who specializes in guardianship matters and elder law, I would like to give context to some of the issues raised in the article.
1. When should one seek guardianship of their adult, developmentally-disabled child?
When children hit maturity, they become legally responsible for their own financial and health care decisions. If parents feel that their child is not capable of making those decisions responsibly due to a disability, parents or any party interested in the child's welfare, can seek to have a guardian appointed.
A hearing is held in which a judge may appoint a guardian over the (adult) child.
2. What happens at the guardianship hearing?
Essentially, a guardianship hearing is a fact-finding mission by a judge. Specifically, the judge wants to see evidence that will prove: (a) whether the child, in fact, has a developmental delay that impedes his/her ability to make appropriate financial and health care decisions, and, if so, (b) which individual or organization is best suited to make those decisions for the adult child.
Often, parents will request to be appointed their child's guardian. Sometimes, though, due to extenuating circumstances, parents may request that a different individual or organization be appointed instead. Perhaps the parents simply feel that they cannot handle such a huge responsibility.
Sometimes, a judge may determine that the parents are not best suited to make their child's financial or health care decisions even though the parents want to.
3. What are the obligations and responsibilities of a guardian?
A guardian makes all of the individual's financial and health care decisions to the same extent that one is legally permitted to make those decisions for oneself (or for one's minor child). Additionally, a guardian has a fiduciary duty to the individual; that is, a duty of loyalty and an obligation to act only in the best interests of that individual.
Once, I was a guardian for an elderly woman. The woman, sadly, had a stroke and was transferred to the hospital in critical condition. The hospital staff turned to me and asked: Would I sign a DNR/DNI (Do Not Resuscitate/Intubate) form?
My ward had a grown son. He wanted me to sign the DNR/DNI. My ward also had a sister, and she did not want me to sign the DNR/DNI. However, neither the son's nor the sister's wishes were relevant. The only relevant issue was, What would my ward have wanted?
Similarly, if Dominic's guardian feels that it (the agency) is making medical decisions that serve Dominic's best interests, the guardian is not required to include Dominic's family in those decisions. A guardian might include family members in such decisions, but only to the extent that family members can assist the guardian in determining what the best interests of the ward actually are.
The same thing would apply to limiting the family's visits and phone conversations. Normally, one would think that more family interaction can only be good for a disabled individual. However, if the guardian feels that such interactions are harmful to Dominic, the guardian must act in Dominic's best interest -- and limit the interactions.
Of course, it is altogether possible that there are other reasons -- and not Dominic's best interests -- that are motivating the guardian, and that is what Dominic's mother must now demonstrate to the court. Unfortunately, though, as the article pointed out, such allegations are quite difficult to prove.
It is heartbreaking that Nancy Pantoni was apparently unaware of the possible ramifications of giving up the right to serve as guardian of her son. Contesting an adult child's guardianship is a whole lot messier for a parent than asking a court to be named your child's guardian in the first place.

Editor's note: Unfortunately, the lying judges and lawyers who mis-managed the Estate of Alice R. Gore in the Probate Court of Cook County may never be disciplined.  Maybe D.C. is ahead of us?  Lucius Verenus, Schoolmaster, ProbateSharks.com

 

Legal Ethics

D.C. lawyer gets harsher penalty for lying in discipline hearings

Posted Jul 15, 2013 7:00 AM CDT
By Terry Carter

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A lawyer who convinced a District of Columbia bar discipline hearing committee that she was truthful about events from several years earlier had less credibility in a subsequent hearing by the Board on Professional Responsibility and ultimately, on Thursday, when the D.C. Court of Appeals upheld the Board.
Stephanie Y. Bradley’s “intentional falsehood” turned out to be an aggravating factor for the board’s decision, upheld by the appeals court (PDF), to suspend her from the practice of law for two years.
The initial hearing committee, though believing Bradley’s explanation on some key points, had found her ethical lapses sufficient to recommend 90 days. She had previously received three formal admonitions.
The suspension concerned Bradley’s failures as a court-appointed guardian for two persons. From 1999 until 2004, she represented the interests of a man with developmental disabilities who was hospitalized with head trauma, until she could have him moved to a nursing home; and from 1999 until 2004, she represented the interests of an elderly and infirm woman.
Though claiming she regularly visited the man at the nursing home, Bradley was shown to have largely ignored him for nine years, having filed only three of the required semi-annual reports with the superior court and ignoring calls and letters from the man’s family in Texas, who wanted to move him closer to them. In 2004, the family got another lawyer to initiate the move and filed a bar complaint against Bradley.
While guardian for the woman, Bradley failed to prevent a purported family friend and caretaker from embezzling between $200,000 and $250,000 from her bank account and failed to file for a payout from a life insurance policy and for a civil-service lump sum benefit due the woman.
In 2003, another lawyer represented the woman in removing Bradley from her care, then sued Bradley and recovered more than $400,000.
Lying to bar discipline authorities was the key reason Bradley’s suspension is for two years instead of the original recommendation of 90 days. For example, Bradley testified that she visited the man about three times a year when on her way to her parent’s vacation home, going 130 miles out of her way to do so. Six members of the nursing home staff testified that she did not attend any of their meetings over the nine years. The hearing committee, however, determined that Bradley “seemed honest” to them.
Though claiming poor memory when recounting events years later, Bradley offered granular details about her attendance at the meetings, saying they lasted 45 minutes and each occurred just before 8 p.m.
“It’s one thing to fail to recall specific facts about important events after a significant amount of time has elapsed; it is another thing entirely to have a specific memory of an event that never took place,” the court noted.

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Elder Law

Lori J. Cerato

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Court case examines health care power of attorney, living will

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June 05, 2013

Pennsylvania's Superior Court recently decided an important case concerning the validity of a health care power of attorney and living will once an individual becomes incapacitated: In re: Estate and Person of Russell R. Border Jr., an incapacitated person, 2013 PA Super 94 (April 23, 2013).

The case was appealed from a decision of the Orphans' Court of the Berks County Court of Common Pleas. Because of the importance of the case and the need to recount facts, this will be a two-part article continuing next month.

The relevant facts are as follows: In 2010, the Berks County Office of Aging filed a petition for appointment of a guardian on behalf of Border, a 62-year old resident of a nursing facility with chronic medical conditions and failing health. Border had a wife and two adult daughters.

In 2007, he executed a health care power of attorney naming his eldest daughter, Renee, as his agent. The Office of Aging requested that Renee be appointed as guardian of Border's person and nominated an attorney, Sharon Gray, as guardian of the estate. The Orphans' Court Judge entered an order declaring Border to be an incapacitated person, appointed his daughter as guardian of the person, Gray as guardian of the estate, and revoked any other existing health care power of attorney previously executed by Border.

Two weeks later, the Office of Aging filed a motion for reconsideration based upon Renee's decision to remove Border from the nursing facility to return him to his residence, where she intended to care for him. The Office of Aging felt that Renee was not physically able to care for her father and that he belonged in a nursing facility. The Orphans' Court judge agreed and amended its order to appoint Gray as guardian of the estate. For two years, Gray served in the capacity of guardian of Border's person and estate, making all decisions regarding his care and finances.

In March 2012, Border was admitted to the ICU at Reading Hospital, placed on a mechanical ventilator with other forms of life-sustaining treatment. Border's physician contacted Gray to advise that Border's health condition was both terminal and futile, and requested that she authorize removal of life support. Border's family, including his wife, brother, sister and both adult daughters, all agreed with this recommendation. Gray disagreed and asserted her authority as guardian of Border's person to prohibit the removal of life support.

In 2007, Border executed a durable power of attorney for health care and living will, where he appointed his daughter, Renee, as agent. Border elected to have life-sustaining treatments under all categories of situations listed in the living-will document. He also opted for his preferences to serve as a "general guide," acknowledging that "in some situations, the person making the decisions for him may decide something different ... if they think it is in his best interest." Relying upon the living will and conversations between herself and Border (acknowledging, however, that those conversations took place after Border was already incapacitated), Gray refused to authorize removal of life support.

As a result of the conflict between Border's family and Gray as guardian, the hospital filed an emergency petition, seeking the removal of Gray as guardian and suggesting that Border's brother replace Gray. The Orphans' Court Judge did just that, directing that the brother had specific authority to withhold and/or decline any life-sustaining medical treatment, including removing Border from a ventilator.

Immediately after the Orphans' Court issued this order, the brother authorized the removal of life support, and Border died later that day. Gray filed a notice of appeal to the order removing her as guardian. Although Border's death technically rendered the issues raised in the appeal moot, the Superior Court determined that the issues raised were of great public importance, were capable of repetition and were likely to evade appellate review. So, the court addressed the merits of the appeal.

Look for next month's column for the outcome of the appeal.

Lori Cerato is a Stroudsburg attorney concentrating her practice in the area of elder law. If you would like to see a particular question covered in this column, email poconorecord.sage@gmail.com. Lori Cerato cannot guarantee a reply to every individual's query.

Lawyer is disbarred for not telling authorities about employee’s misuse of client credit card

Legal Ethics

Editor’s note: With all the unethical behavior going on in the Probate Court of Cook County, why isn’t the ARDC disbarring a continuous stream of lawyers and judges? Lucius Verenus, Schoolmaster, ProbateSharks.com

Lawyer is disbarred for not telling authorities about employee’s misuse of client credit card

Posted Mar 4, 2013 1:27 PM CDT
By Martha Neil

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A Georgia attorney has been disbarred following her conviction of misprision of a felony due to an employee's misuse of a guardianship client's funds.
In a brief order (PDF) on Monday, the court noted that Zondra Taylor Hutto had not responded to the disciplinary case and found that disbarment is appropriate. Earlier news articles indicated Hutto intended to consent to disbarment.
Hutto, who is in her early 60s, got into ethical trouble after finding out that a law office employee had used a credit card and a debit card belonging to an elderly client for whom the attorney served as a temporary guardian. Although Hutto fired the worker, she admitted in a 2011 federal plea agreement that she never reported the thefts—which totaled over $19,000—to authorities, according to a Birmingham News article published in 2011 and an FBI press release on which it relies.
A subsequent Associated Press article says Hutto was sentenced to three months and ordered to pay a little over $19,000 in restitution. She was working as a conservator for the Tuscaloosa County probate court at the time of the crime.
Hat tip: Legal Profession Blog.
Related coverage:
Estate of Denial (2012): "Questions surround ex-conservator’s cases"

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Business of Law, Law Practice Management, Criminal Justice, Sentencing/Post Conviction, White Collar Crime, Elder Law, Legal Ethics

http://www.abajournal.com/news/article/attorney_who_didnt_tell_police_about_employees_theft_from_client_is_disbarr/