Court: Guardian can’t take new cases

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By Lucas Sullivan The Columbus Dispatch  •  Sunday June 29, 2014 5:34 AM

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Franklin County Probate Court has barred a lawyer who is under criminal investigation from obtaining any new guardianship cases. ’
The court has held hearings the past two months asking the lawyer, Paul S. Kormanik, to explain his billing practices. They were among the potential abuses exposed in a series of stories in The Dispatch that detailed a broken system for caring for people the court has deemed incompetent to care for themselves.
The court has found in several cases that Kormanik misused a taxpayer-supported fund that pays attorney guardians up to $420 annually to handle legal matters for indigent people.
“Of the 17 cases thus far reviewed, the court found cause for concern in 16 cases,” Judge Robert G. Montgomery wrote in a court order. “Based upon the large percentage of cases with irregularities causing concern ... the court will impose a moratorium on appointing attorney Kormanik as guardian on any further cases.”
Court officials also said they are investigating several other guardians, some of them also lawyers, but declined to name specific cases.
Ohio Attorney General Mike DeWine’s office and Franklin County Prosecutor Ron O’Brien are also investigating Kormanik’s billing practices and his use of Medicaid funds. That investigation is expected to take several months.
Kormanik did not respond to questions about the criminal investigation. As for the court hearings, he said the court is trying to enforce rules that it previously had not explained to him.
“I have not received a copy of the rules and understand that the rules are not written,” he said.
Montgomery’s decision also comes as the Ohio Supreme Court and state legislators are discussing new uniform standards to better protect the more than 65,000 Ohioans who are in guardianships. Three Ohio Republicans — state Sen. Shannon Jones of Springboro, state Rep. Dorothy Pelanda of Marysville and House Speaker William G. Batchelder of Medina — have called for hearings to spur changes.
A probate judge or magistrate has the authority to order the establishment of a guardianship. A guardian appointed by the court then takes control of decision-making for the person declared incompetent, also known as a ward. A guardian can request the relationship without ever meeting the ward or speaking with family members.
The Dispatch investigation “Unguarded,” online at Dispatch.com/unguarded, found that unscrupulous lawyers were billing legal fees for non-legal work. One, for example, billed a ward’s estate more than $1,000 to talk to her family by phone about planning her funeral.
That lawyer, Kevin A. Craine, also is under investigation by the Ohio Supreme Court’s disciplinary counsel, state and local authorities involved in Kormanik’s investigation told The Dispatch. The counsel is looking at possible ethics violations.
Audrey E. Varwig, an assistant disciplinary counsel, said she cannot comment on any reviews or confirm whether there is an investigation. Craine did not return calls seeking comment.
The probate court is not reviewing Craine’s cases.
The Dispatch also uncovered wrongdoing by family members who neglected loved ones and abused them. Much of the abuse was allowed to take place because neither guardians nor the probate court checked on the wards, in some cases for years.
A handful of lawyers are responsible for more than 1,000 of the county’s 4,000 adult wards. Kormanik has nearly 400 wards and remains in control of most of them.
Court officials said they will hold more hearings about his cases.
The court is reviewing how Kormanik is able to submit to the court thousands of dollars in legal fees for wards who are labeled indigent because they have less than $1,500 in assets, yet also pay himself from money belonging to his wards.
In many cases, Kormanik is guardian of the person only, meaning he can make medical and living decisions for a ward but has no control over finances.
The court has asked him in several instances to explain where he got the money and why he opened up bank accounts on behalf of a ward but never reported those accounts to the court.
Mike Shively’s uncle is in a guardianship under Kormanik. He is one of the 17 wards whose cases the court reviewed.
“My uncle has not been served adequately at all by Kormanik, and we’ve tried and tried to get explanations from him about my uncle’s finances,” Shively said. “We are trying to get Kormanik removed as guardian.”
Last week, the court rejected about 150 legal bills that Kormanik had submitted. He filed the bills in the event that an indigent ward comes into money and is able to pay.
Many of those bills charged questionable “legal fees” for such things as cleaning out a ward’s house, talking to a family member about the ward’s care or talking to the ward directly. The court had previously approved nearly all such bills without holding a hearing.
Montgomery told The Dispatch in April that the hearings are routinely waived because they would bog down the court.
lsullivan@dispatch.com
@DispatchSully

Judge tries to change guardianship system

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By Josh Jarman The Columbus Dispatch  •  Sunday June 29, 2014 5:46 AM

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Franklin County Probate Judge Robert G. Montgomery has long known there were problems with the way his court handled guardianships.
Montgomery, who became the county’s probate judge in January 2011, said he was shocked to learn soon after his arrival that a handful of local lawyers serve as guardians for more than 1,000 people. Montgomery wants to end that reliance.
A guardian is appointed by the court to make decisions for a person, known as a ward, who has been declared unable to handle his or her own affairs because of age, mental illness or disability. Guardians wield considerable power over the lives of their wards, including deciding where they live, the health care they receive and how they spend their money.
Montgomery said he has been working for more than two years to find a better way to provide guardianship services in Franklin County. That plan took a big step forward this month when he got legislative approval to create a first-of-its-kind Franklin County Guardianship Service Board, which he intends to be a collaborative effort between the court and local charities and social-services organizations.
“We’ve looked at this since I got into office, … and this is an issue with the way Franklin County’s been doing things for a long time,” Montgomery said. “I decided fairly early on that moving from an attorney-based guardianship system to a social-services based system is something that would make a lot more sense.”
A yearlong Dispatch investigation revealed that the patchwork system of rules for guardianship in Ohio is ripe for abuse, and that a lack of oversight has allowed some attorneys and family members entrusted to care for the state’s most-vulnerable residents to take their dignity, money and freedom.
Montgomery’s plan to fix the system in Franklin County is to create a three-person board of directors for the guardianship board, which will operate as a tax-exempt, nonprofit agency. The board members would be appointed by him and by the board members of the county’s Alcohol, Drug and Mental Health Board and Board of Developmental Disabilities.
That group would then hire an executive director who would serve as guardian for the county’s hardest-to-serve residents, typically those wards with a mental illness who live outside of a nursing home or other group setting.
The new agency would hire social workers to serve the most-difficult wards. It would deploy volunteers and interns to work with other wards and visit them to check on their welfare.
To create the board, Montgomery had to seek two changes to Ohio law. The first allowed him to create a probate court mental-health fund, which would pay to start and operate the organization. The second, most-recent law change, lets outside groups such as social-services agencies and local charities contribute to the fund and allows for the formation of the service board.
The new law also will allow Montgomery to appoint a guardian for some wards by title instead of by name. That means that if there’s a change of leadership on the board, Montgomery will not have to hold court hearings to replace the guardian for each of the people served by the organization, as is otherwise required by state law.
Montgomery said he approached the leaders of both ADAMH and the developmental disabilities board because those agencies serve many of the county residents most in need of guardianship.
“The whole genesis of this program was to view the guardianship as a necessary part of any treatment plan,” he said.
David Royer, chief executive of the county’s ADAMH board, said the county has an opportunity to be a statewide leader and create a program that can be a model for others to follow.
He said Gov. John Kasich and state lawmakers need to take a closer look at the issue and make sure it’s getting the attention it deserves statewide.
“This is a situation that needs more than a tweak,” Royer said. “It needs substantial rethinking and reform.”
He said ADAMH agreed last year to give the court’s mental-health fund a little more than $75,000 and has committed to give $250,000 more this year to get the organization started. The county’s developmental disabilities board also has pledged $250,000, Executive Director Jed Morison said.
While many details are still to be worked out about how the board will operate, Morison said it’s moving the county in the right direction. Not many of the people served by his organization need someone to help manage large estates or bank accounts, but they do need help with decisions about housing and health care, he said. “It’s important for these folks to have a voice.”
The law allowing the board to be created will take effect in about three months. In the meantime, Montgomery plans to call every charity in the county to look for both donations and volunteers.
He envisions matching volunteers from organizations that have a particular focus with wards who could most benefit, such as those with dementia being served by volunteers from the county’s Alzheimer’s association.
Ultimately, not every ward can be served by volunteers, which is where paid staff will come in, he said.
“One hundred percent of my goal is to make sure that there’s nobody living under the Broad Street bridge who needs medical attention, who needs a guardian, and there’s nobody there for them,” Montgomery said.

To read the series, visit Dispatch.com/unguarded.
jjarman@dispatch.com
@Josh_Jarman

Reactions mixed on proposed rules for guardians

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By Josh Jarman The Columbus Dispatch  •  Thursday June 26, 2014 6:15 AM

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Judges, advocates and attorneys in Ohio cannot seem to agree on how to fix a broken system meant to protect the elderly and disabled from abuse and exploitation.
The subject of a yearlong Dispatch investigation, the rules for adult guardianships in Ohio are largely left up to individual county probate courts to decide. The Dispatch series, “Unguarded,” revealed that a lack of oversight has allowed some attorneys and family members entrusted to care for the state’s most vulnerable residents to take their dignity, money and freedom.
Despite an outcry from lawmakers and advocates to create changes, the Ohio Supreme Court received conflicting opinions on a draft set of rules that would strengthen the requirements for guardians. In general, judges and attorneys who serve as guardians argued against the rules, while advocates and those who work with volunteer guardians called for quick adoption of the rules and wanted them to be even stronger.
Such differing opinions contributed to delays in drafting the rules, leaving Ohio as one of the few states without a uniform system for overseeing guardianship.
The draft rules would, for the first time, require guardians in Ohio to:
• Meet personally with their wards at least twice a year.
• Undergo a criminal-background check (but not a financial check).
• File an annual report on the health and care of the ward. (Some Ohio counties require a report only every two years.)
• Avoid conflicts of interest and not serve as a direct-care provider for the ward unless authorized by the court.
• Undergo a minimum of six hours of training before serving as a guardian for the first time and attend three hours of training per year thereafter.
People were allowed to offer feedback on the rules through a public comment period that was scheduled to end yesterday.
The result is a mix of reactions that mirror the almost eight-year discussion that led to the draft rules in the first place, with advocates pitted against the probate judges about what’s best for the state.
Michael Kirkman and Ronda Cress, the executive director and a staff attorney, respectively, at Disability Rights Ohio, wrote to the court this week arguing that the draft rules would not address the problems raised in the Dispatch series.
“It appears that the desire to preserve local control over guardianships has trumped the dire need for better oversight and protections,” they wrote, adding that while individual county courts have the ability to enact stricter rules, most have not.
Julia R. Nack, director of the volunteer-guardian program through the Central Ohio Area Agency on Aging and a subcommittee member, has said that the draft rules do not go far enough to protect the vulnerable. She wrote the court to argue for changes that include an increase in the number of visits required between guardians and wards and making the training requirement universal.
“Two visits a year is grossly inadequate and far below best practice standards,” Nack wrote. “ Mandating only two visits a year discounts how much power is given to a guardian to impact the quality of life of an individual and how important it is for the guardian to know first-hand the wishes and needs of the ward.”
The number of required visits has been a sticking point with judges and attorneys who worry that more rules will mean fewer people will choose to serve as guardians, a real problem for some counties that already struggle to find enough guardians.
Judge Thomas C. Lee, the probate and juvenile court judge in Holmes County, wrote the court to say that the passage of the rules would slash his court’s ability to find volunteers willing to serve as guardians.
“Ultimately I suspect that the (county’s volunteer) program may become non-existent, and then this court will be back in the same situation it was when I arrived, with people who really need a guardian, but with no one to serve,” Lee wrote.
As a small rural county, Holmes has challenges that other counties do not have, he said, and should be able to craft rules that represent local reality. He said it might be impossible to persuade local volunteer guardians, many of whom are retirees, to travel to Columbus once a year for training, for example.
Lee did not return requests for comment.
The reluctance to ask guardians to undergo initial and then yearly training was a theme among many of the responses to the court. Most said it would make the already difficult job of recruiting volunteers harder.
In a four-page letter to the court, Paul D. Rattermann, chief magistrate and administrator for the Hamilton County Probate Court, wrote that the rules are too broad. He said the training provision is “a wonderful aspirational goal, but the rule is unduly burdensome.”
Reached by phone yesterday, Ratermann declined to comment further, saying the letter spoke for itself.
Jack L. Carter, an attorney and guardian in Troy, Ohio, wrote to the court that he likely would resign from his position as a guardian of three wards with mental disabilities if the court adopts the new rules.
“The Supreme Court appears to be piling a bunch of unnecessary new rules and requirements on guardians, especially the many attorneys who have already been approved and appointed by their local probate courts and the overwhelming majority of whom are already serving honorably and doing what is required of them,” Carter wrote.
Sally Leatherman, the executive director of the Union County Volunteer Guardian Program, sees things differently. She not only advocates for the adoption of the training requirement, but thinks it should be expanded to guardians who are family members.
She said relatives need more information about the resources available to their loved ones under guardianship, and they need to be better equipped to handle their legal responsibilities. The volunteers she works with in Union County would not shy away from their duties because of a requirement for ongoing education, she said.
Leatherman said despite all the work that has gone into the rules, they won’t do enough to fix the system. It will take new laws, she said, not new rules set by the courts, to fix what’s broken.
“I definitely think there needs to be legislation,” Leatherman said. “These are just baby steps."
jjarman@dispatch.com
@Josh_Jarman