Continued from PART I and PART II
Sugar and the AAAPG fight to shed light on the issue. With a nationwide network of chapters but limited resources and a shoestring budget, today the AAAPG advocates for over 1,200 multigenerational families from attacks waged and sanctioned by their own states and a legal system in which the Constitution or any of its amendments are utterly meaningless.
“Our mantra is ‘educate, advocate, legislate’,” Sugar said. “That’s in response to the [unofficial] mantra of for-profit guardians—which is ‘litigate, isolate, medicate, take the estate’.”
Often, Sugar says he fields calls from five or six families-per-day who are victims of that mantra.
“The elderly themselves don’t call because their phones have been taken away,” he explained. “They aren’t given access to anything and are placed in every type of senior warehousing. For people with lots of money, the guardians have an incentive to find the cheapest place possible. Why waste money for potential fees on feeding or clothing the ward? They are given huge doses of… drugs for no corrective medical reason but to stop them crying or screaming. When the family protests, the judge retaliates by issuing an isolation order. The family cannot see their parents for the rest of their lives under threat of arrest.”
Sometimes, a family isn’t even involved. A state’s Adult Protective Services agency may be called. Sometimes, it’s a neighbor suspecting neglect or a dangerous living environment. In other cases, it is a doctor or bank teller who believe a relative is committing physical abuse or, ironically, financial theft.
Just as when a state’s Child Protective Services agency begins an investigation, once a court steps in, entire families find themselves thrown into a hellish system which, in every way imaginable, is designed to work against them while systematically bleeding them of the resources needed to keep fighting for their loved ones.
“Perhaps the most easily understood precedent to elder abuse trafficking is family discord,” Sugar said. “Any member of the family who is under the mistaken notion that, if they simply submit their grievances to an attorney, the attorney will give them control. But the system of guardianship is all about diverting power and money away from its rightful owners. The fundamental flaw to all these courts is that they are equity courts whether probate, divorce, family or bankruptcy. That means no juries, no rules of evidence or civil procedure. It’s one person [on the bench] and their impression of the information and so-called evidence that is put before them.”
Throughout a half-decade-long of discoveries, Sugar found that guardianship abuse has disproportionately affected Jewish families, particularly those with money.
He puts that down to a mixture of wealth and family dysfunction.
“There is a sense or entitlement with downstream heirs that is very strong,” he said. “They are very prone to litigate their family problems.”
There are also a number of cases involving Holocaust survivors.
Al Katz barely escaped numerous Nazi camps, including Dachau, only to become the ward of guardians in Florida at the age of 89, as court documents show.
“My father came to the United States in 1946,” his daughter, Dr. Beverly Newman, told me.
“His mommy, daddy, little brother, older sister, her husband and their one-month-old baby had all been murdered. He was a walking skeleton with no money, no job and didn’t know the English language. He felt very alone.”
Nevertheless, Newman remembered that her father never lost a wonderful sense of humor while he lived by the motto “Never forget, never forgive and never be bitter.”
It was at a Purim ball in Indianapolis that Katz met Sophia Passo.
“He was stricken with love,” Newman laughed. “He asked her over and over again to marry him. She just would not do it.”
Katz started to work in bakery and then a packing house where he was injured twice. It was when Sophia was visiting him in the hospital that she relented.
He and Sophia were married in 1947. Katz began a successful insurance career. The couple had two children, Newman and her younger brother, and were inseparable for over thirty years until Sophia passed away in 1977.
The devastation Katz felt remained with him the rest of his life.
After retirement, Newman said that her father became a snowbird, spending winters in Florida.
In 2009, concerned for his health, one of Katz’s doctors contacted a public guardian.
That individual was M. Ashley Butler who worked in the Office of Public Guardian for three Florida counties since 2006 together with a partner, Jo Eisch, under the business name Aging Safely, Inc.
Newman maintained that the first she heard about it was when she was told by Katz’s Indianapolis attorney that “there are people poking around about putting your father into guardianship. That was August of 2009.
Newman added that hospital records she obtained from the time include numerous orders made by the guardians not to inform her of any medical decisions or procedures.
“On Rosh Hashanah, September 18, [Butler and Eisch] filed papers to put my dad into Emergency Temporary Guardianship,” Newman said, adding that neither guardian had ever met her father. “They didn’t even know him. I have the transcripts of the hearing. The judge knew that I had not been contacted and went ahead and approved it anyway. Things then moved very quickly.”
A 2011 Florida Supreme Court complaint filed by Newman and her husband noted that Bradenton attorney Ernie Lisch was appointed by the court to act as Al’s counsel.
“Despite many irregularities at the hearing, Lisch took no steps to advocate for or protect the rights of his client,” the complaint reads. Lisch contested these allegations, and the Florida Appellate Court ruled in his favor.
Newman discovered that Katz had been placed in Casa Mora Nursing Home in Bradenton.
In 2015, the Bradenton Herald reported that the facility was one of three on a Florida watch list “due to prior problems or deficiencies.”
The Herald noted, among those deficiencies, “A 58-year-old Casa Mora resident and the resident’s representative had requested in a resuscitate order that the resident receive CPR if she was ever found unresponsive. This procedure was not followed when she fell unresponsive. She was pronounced deceased after not receiving CPR.”
According to the article, these deficiencies have since been corrected.
Casa Mora is no longer on the state’s watch list.
Newman and her husband Larry immediately drove from their home in Indianapolis down to Florida.
She asserted that, shortly before they arrived on September 20, Butler utilized the Florida Baker Act—which allows for involuntary commitment—in order to place Katz in Manatee Memorial Hospital.
“They said that he had taken his walker and bumped it into someone at the nursing home,” Newman said. “But my Dad was barely able to use a walker. He was in very poor physical condition and not a danger to anyone else. They never told him anything. Not what was going on, nothing. We arrived while daddy was in the Manatee Hospital emergency room. It was horrifying. My dad just wanted to go home. A psychiatrist chosen by Butler and Eisch made a No-Contact order. The hospital kept my daddy in an underground unit, like a dungeon. There were armed guards and these huge electronic doors. A nurse told us he was pacing the halls like a caged animal. It was traumatizing.”
She added that Katz was there for three weeks.
Newman remembered Katz calling Butler and Eisch “Nazis” to their faces.
Meanwhile, like the family members in Michigan, Newman launched a fight to have Butler’s guardianship removed and her father returned to her care, as court documents show.
Opposed by Lisch, the case was heard on October 26, 28, and 30, 2009 in Florida’s Twelfth Judicial Circuit Court.
“In the intervening three weeks, Katz was repeatedly hospitalized and near death,” the 2011 complaint noted.
“Guardianship in Florida is a very lucrative industry,” Newman said. “People who go into guardianship lose every cent they ever had. Their families are wrecked.”
She stated that the guardians even took control over her father’s Holocaust Survivor Compensation checks as part of their oversight of her father’s assets.
I attempted to track down Butler. The telephone numbers for Aging Safely have been disconnected. Email addresses for Butler have been shut down. The last I-990 tax return filed by the organization in 2014 listed bet assets of $1,767.00.
As of publication, Eisch had not returned phone calls or email requests for comment.
In Newman’s case, Florida Circuit Court Judge Paul E. Logan (now retired) restricted visits to her father to only three hours-per-day. “He said I could never tell my daddy that I was fighting in court to get him home or that he was under guardianship,” Newman asserted. “If I did, I would lose visitation completely. Daddy was crying and saying, ‘Take me home!’ ‘Why do you have to leave me?’ ‘Why can’t I go home with you?’ and I was prohibited by court order from telling him the truth.”
On November 23, 2009 Newman won her petition for guardianship of her father but not his property.
“I didn’t care,” she said. “I just wanted to get daddy out of the nursing home and hospitals and give him a real life. It was such a relief that I couldn’t stop crying.”
However, by then, Katz was extremely ill and in the hospital.
“I spent Thanksgiving that year with my daddy and in the hospital,” Newman said. “In some ways, that as the best and worst Thanksgiving of my life. At least I could shower him with love and attention.”
By the time Newman and her husband got Katz home, it was Hannukah.
“He was finally smiling,” she said. “By New Year’s Eve, he was able to eat and talk. We took him to a restaurant that he liked. We got him all dressed up. He wanted us to take pictures of us celebrating New Year’s Eve. It was a happy time.”
Their time was all too short. Katz passed away on July 11, 2010.
“He had no catheters or feeding tubes in him,” Newman said. “He was just as normal as you could be at 90-years-old.”
In January that same year, Lisch filed a petition for $24,354.15 in attorney’s fees and expenses.
“For doing essentially nothing,” Newman asserted.
She opposed it and took the case all the way to Florida’s and then the United States Supreme Court, the latter of which declined to hear the case. Ultimately, Lisch prevailed in his original petition.
Even nine-years after her father’s death, Newman said she is still subjected to verbal abuse and numerous accusations from those with a vested interest in a system against which she has actively taken a stand. Meanwhile, she continues to fight in Indianapolis to settle her father’s estate and to remove liens on Katz’s properties.
In 2006, in the case of Marshall v. Marshall, the USSC determined that issues dealing with Probate Courts are “reserved to state probate courts” and “also precludes federal courts from disposing of property that is in the custody of a state probate court.”
In memory of her father, the Newmans founded the Al Katz Center for Holocaust Survivors and Jewish Learning in Bradenton.
“We serve many hundreds of persons every year through advocacy and programming open to the entire community,” the Center’s website reads, “and we are life-sustaining and life-saving to elders in peril and trauma.”
On the opposite side of the country, the probate and guardianship system created another activist and family advocate out of an individual who found herself opposing those who have successfully exploited it.
Terry Williams is the founder of Citizen4Justice.com which seeks to expose predatory guardians operating in the Las Vegas area and across the country. In February of 2003, after she found herself tied up in a guardianship case, Williams began to research other cases in Las Vegas probate courts, where she noted one particularly prominent name: Jared E. Shafer.
Shafer was appointed to an unexpired term as Clark County Public Administrator/Public Guardian in 1979.According to a 2005 document filed by the Nevada Commission on Ethics, he was elected as the Clark County Public Administrator in 1982 and spent the next 20 years in the role.
Prior to leaving office in 2002, Shafer was active as a private fiduciary and started a business Professional Fiduciary Services, Inc., and, in 2003 “publicly established himself as a private consultant/fiduciary in estate, trust, and guardianship matters. Most of Mr. Shafer’s business as a private fiduciary comes from the court and attorneys he worked with during his tenure as a public official.”
A 2017 article in the Las Vegas Review Journal called Shafer “the county’s most prominent private guardian.”
“[Shafer] is considered an insider in the Las Vegas legal community,” the Review Journal added, “where his contacts with judges, politicians and prominent business leaders go back decades. Despite repeated accusations of financial irregularities, ethical lapses and at least one FBI investigation, he has never been accused of a crime.” I reached out to Shafer’s business Professional Fiduciary Services via telephone. No response was received as of time of publication.
According to KTNV in July 2017 a 28-year-old sufferer of cerebral palsy named Jason Hanson filed a lawsuit against Shafer, the current public administrator and attorneys (three of whom served on the Nevada Supreme Court’s 2016 Guardianship Reform Commission) for racketeering, fraud, negligence, and unjust enrichment. The lawsuit is ongoing.
William’s numerous attempts to secure justice for Shafer’s alleged victims through the Las Vegas Police Department were fruitless. She said that she is “waiting for the feds.”
The Bradenton police department wouldn’t help Newman. Brun said that the police in her case were similarly unable to act, unless it was to prevent her from entering Lourdes to see her mother.
The AAAPG has collected over 600 and growing fully-documented, self-reported cases of guardianship abuse which contain enough groundwork for the FBI or Department of Justice to investigate with barely the lift of a finger—if they were interested.
“They aren’t,” Sugar said. “They say it is a civil matter and that we should talk to a lawyer.”
While people like Williams, Newman, and Sugar say that their aim is to expose and fight guardianship abuse nationwide, there is an organization that advocates for those working in the profession.
The National Guardianship Association (NGA) was formed during a national conference in Chicago in 1988—one year after the AP’s article was released.
In the 30 years that followed, the NGA’s membership increased to over 1,000.
Sally Hurme is an attorney and member of the NGAs Board of Directors. She said that, while she is not and has never been a guardian, she has been involved in developing guardianship policy for decades.
“NGA does not have any mechanism by which to do anything other than to keep developing standards of practice and educating individuals who want to provide excellence in guardianship,” she said.
According to the NGA’s website, those standards of practice have increased from the original seven to their present number of 25. In 1997, the NGA voted to create an entirely separate entity, the Center for Guardianship Certification (CGC) on whose board Hurme has also served.
It states its vision as one in which “every professional guardian will obtain and maintain CGC certification.”
“The CGC is the only national certifying body for guardians,” Hurme said. “Any guardian; professional, family, public or volunteer is welcome and encouraged to become certified.”
Among the five pillars Hurme listed as necessary to obtain certification is an examination.
To become a Nationally Certified Guardian (NCG), the $375 exam is scored on core competencies including professional practices, knowledge of person under guardianship, application of surrogate decision making, medical decision making and personal and financial management.
The competencies listed in the $525 examination to be certified as a National Master Guardian (NMG) are basically the same with the addition of “professional practices of a master guardian” and knowledge of the guardianship planning process.
Hurme stated that, at present, there are approximately 1,500 certified guardians.
“There is an agreement to a disciplinary process which receives grievances, determines whether there is probable cause to go forward with a professional review board,” she stated.
Ironically, according to Hurme, the professional review board is one in which “due process” is afforded to a certified guardian while a determination is made as to whether or not they have violated standards of practice.
“The professional review board has a range of sanctions from a letter of concern, to suspension, dismissal to decertification,” Hurme said. “The one problem with the CGC process is that we can only hear grievances if the individual is certified. If we receive a complaint about a guardian that is not certified, our hands are tied. There’s nothing the CHC can do.”
The CGC’s list of disciplined guardians posted on its website numbers 12 and includes April Parks alongside guardians from Oregon, Texas, Utah, Nevada, New Hampshire, New Mexico, Ohio, Oregon and Michigan.
The CGC lists 12 States that ask for mandatory CGC certification for its guardians or have their own State-specific licensing requirements. In the case of California, it’s a combination of the two. Michigan is not among them. Since 2016, Florida has employed The Office of Public and Professional Guardians (OPPG) to regulate “more than 550 professional guardians statewide, which includes investigating and, if deemed appropriate, the discipline of guardians in violation of the law.
“NGA and many of the other organizations such as those that are members of the National Guardianship Network are continually striving to make guardianship work better for those individuals who will need it,” Hurme said.
As an example of those efforts, Hurme noted the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA). The over 150-page document was drafted, over the course of two years, by a committee consisting of multiple stakeholders including representatives from the American Bar Association (ABA) and was approved and recommended for enactment in all US States at a July, 2017 meeting of the National Conference of Commissioners of Uniform State Laws.
Hurme stated that members of the NGA, herself included acted as technical advisors to the commission “in making sure that the new model; law addresses many of the issues that are floating around in guardianship; perhaps that there are too many guardianships and that there needs to be more emphasis in limiting the authority of the guardian, better recognition of the due process rights of the individual and a more person-centered focus of the individual in the hearing process that limits the authority of the guardian.”
American Association of Retired Persons (AARP) Senior Legislative Representative Diana Noel was part of the drafting committee.
“I felt as if it was a very thorough process that was very public,” she said. “There were a lot of people in the room. One of the things that is very important; that the drafting committee really wanted to come across, which is why the name is so long, is to recognize that guardianship was a system that was really not including the individual that it was about. One of the things the act did was to update terminology. Instead of using the term ‘ward’, it’s ‘individual’ so that the focus is on the individual and so that they have a say in their care.”
A Uniform Law Commission document encouraging States to adopt the UGCPOAA, declares that, under the act, “Each guardianship and conservatorship will have an individualized plan that considers the person’s preferences and values. Courts will monitor guardians and conservators to ensure compliance and approve updates to the plan in response to changing circumstances.”
It adds that “Without a court order, a guardian under UGCOPAA may not restrict a person under guardianship from receiving visits or communications from family and friends for more than seven days, or from anyone for more than sixty day” and that the act “prohibits courts from issuing guardianship or conservatorship orders when a less-restrictive alternative is available.”
These provisions and others in the UGCOPAA could have protected Brun and her mother had the act been adopted in Michigan.
It hasn’t.
As of the time of publication only Maine has adopted it. The New Mexico State Legislature introduced it this year and opened it up for public comment.
Hurme pledged that the NGA would direct its advocacy efforts to assisting States in understanding the importance of what she called “a forward-thinking law.”
Sugar is dubious.
“States put a lot of effort into creating their own legislative agendas and their own statutes,” he said. “The restrictions are very stringent and might make it very difficult to continue guardianship as we know it in the United States.”
Noel is more optimistic.
“This isn’t a partisan issue,” she asserted. “This isn’t a caregiving and an aging issue. I don’t want you to think that, because States haven’t adopted it, that means that they are not looking at it. They may be looking at it. These things take time. They look at their current laws, they see what’s working and what’s not working and how things like the Uniform Act could help fix what’s not working or enhance what is.”
As to whether the CGC’s certification exam is working, Sugar called it a “relatively meaningless paper tiger that is not a rational way to monitor people simply based on paying a fee and taking some courses.”
“I’m not speaking against [the CGC] per se but it seems like a joke because, when there are problems, they seem to be so slow to act,” Williams agreed. “I have a problem with that and when they would try to smooth things over by claiming that these are isolated incidents. There’s too many people with the same scenario for that to be the case.”
“While predatory behavior does not happen in a majority of guardianships, our statistics based on State Court information, our own interviews and surveys indicate that 14 percent of all guardianships involve criminal activity,” Sugar said. “That is a large number of cases that we know about. We don’t know about any others because there are no statistics. If the National Guardianship Association were really interested in the welfare of wards it would work with us to develop reliable and meaningful data and statistics, so the subject can be studied appropriately.”
Noel says she has spent seven years fighting to stem these abuses.
“As long as I’ve been here, I’ve been working on this issue,” she said. “States have been working on and updating their statutes because they are pretty outdated. They’ve been around for a very long time. It’s a very complicated system. What we’re doing and what states are doing is making sure that policy and practice meet and complement each other.”
The AAAPG has had some success with Florida lawmakers which led to the unanimous passage of legislation aimed to curb guardianship abuses and the 2016 expansion of the state’s OPPG.
Federally, legislators have taken a similar interest. The Elder Abuse and Prevention Act passed by the senate and signed into law by President Trump in 2017, charged the Department of Justice with establishing “best practices for data collection on elder abuse” and “in coordination with the Elder Justice Coordinating Council, [to] provide information, training, and technical assistance to help states and local governments investigate, prosecute, prevent, and mitigate the impact of elder abuse, exploitation, and neglect.”
“We have a real long history in combatting abuse and exploitation and ensuring that State laws address and prevent abuse by a guardian or a neighbor or whoever,” Noel said. “We’ve really been engaged in working not just with State legislators but State courts.”
“You know how much difference it’s all made?” Sugar asked. “Zero. You can have all the laws you want but, if they aren’t enforced, they mean less than nothing. There isn’t any data. There’s nothing to collect.”
Wondering about the laws in a State like Michigan and how far they extended in the protection of wards and their families from predatory guardians and the probate courts which employ them, I reached out to probate attorneys across the State.
Nathan R. Piwowarski is a highly respected lawyer and share-holder at the firm of McCurdy Wotila & Porteous, PC in Cadillac. He has been practicing trust, estate and elder law for ten years.
Ronald Dixon has practiced law since 1975 and served as a hearing panelist for Michigan’s Attorney Discipline Committee for approximately 25 years.
Neither Dixon nor Piwowarski were asked to comment on or given the details about any case pending or decided in Michigan Probate Courts.
“The problem is that when a person needs a guardian or conservator, frequently the family members are not worked with by the court or by the guardian appointed,” Dixon said. “The families are concerned, always, about the living conditions for the ward.”
He added that a conflict between a conservator and the family can be easily avoided with a durable power of attorney that specifically names a family member and an alternative as guardian and conservator “and none other.”
However, if judges arbitrarily strike down a durable power of attorney in favor of a court-appointed guardian, Dixon noted that “they should not do that. They should follow the family wishes. If that happens, it should be immediately appealed.”
He added that a judge needs to demonstrate sufficient grounds as to why a power of attorney listing a family member can be discarded.
“The record should be complete,” he said. “Showing the reasons why this person is not qualified or cannot maintain their position.”
Piwowarski noted that the issue “can get a little bit complicated” depending on whether the power of attorney is generic and related to financial transactions or whether it concerns healthcare and placement issues (a patient advocate designation.)
“In the case of the latter, unless the court specifically invalidates that document and removes the patient advocate, it remains in place,” he said. “The law presumes that the patient advocate would continue serving. That document should stay around unless there was some problem with it like there were not an adequate number of witnesses when it was signed. There are also situations where there is a valid document, but the patient advocate is not doing their job or honoring the person’s preferences.”
In terms of the Constitutional rights a participant in Michigan’s Probate Courts can expect, Piwowarski cited Michigan Compiled Law (MCL) 700.5304 (4) through (6) which addresses the rights of the individual who is allegedly incapacitated.
“They include the right to a jury trial [or] a closed hearing, if they request it, the right to be present at a hearing, the right to obtain an independent medical
examination,” Piwowarski said. “There are other procedural rights and protections that are supposed to be afforded the individual who is the subject of a guardianship petition. For example, they’re entitled to personal notice in advance of the hearing. The minimum personal notice requirement is seven days. They are supposed to be given a visit by the Guardian ad Litem who is then supposed to report back to the court, in a timely manner, about whether that individual desires to contest any aspect of the petition or exercise any procedural rights such as the right to request something less intrusive than a full guardianship.”
According to Piwowarski, different rights are afforded to those who have an interest in the subject’s welfare.
“There are certain rights that they just don’t have,” he said. “They can’t demand a jury trial. But if there is a durable power of attorney, all of those individuals are entitled to notice and entitled to participate in the proceeding.”
“In terms of who should be serving as a guardian, the nominated patient advocate is right near the top of the list,” he added. “So, the court should be looking to the patient advocate before almost anyone else. The way the statute should work and the way that it’s written is that the court can only intervene in a person’s affairs if that person is legally incapacitated and if there’s an actual need for the court to intervene. The court should evaluate, on the record, why a patient advocate is inadequate. There are express provisions in the Estates and Protected Individuals Code that tell the petitioner and the judge that they have to identify why the court has to actually intervene alternatives short of guardianship can’t be used.”
The question of how much power a professional guardian in Michigan has Piwowarski noted both a statutory and political dynamic.
“In terms of the statue, a guardian has the right to set appropriate access and limit access for a protected individual,” he acknowledged. “That said, the guardian is specifically required by statute to do everything they can to have as full of a life and as high of a level of function as possible. In terms of financial transactions, the court can issue protective orders to remediate situations where a vulnerable person made a property transfer when they didn’t understand it or were under inappropriate influence. A conservator is not able to do something like that without a court order and there should be pretty significant showing before a court would reverse a transaction like that.”
“In my experience the court is typically appreciative of the willingness of a public fiduciary [guardian] to serve,” Piwowarski added. “There is such a need right now for a variety of reasons; families are smaller and more spread out. The public fiduciaries typically are overworked so I can certainly see a situation where a court adopts an overly deferential attitude because of the role that they serve in keeping the local legal system functioning.”
“Oakland County is the wealthiest county in Michigan bar none,” Dixon said. “Frequently estates are incredibly large. Public administrators can err on the side of greediness for him or herself. Frequently, because the judge trusts them to carry out their tasks properly and in good order and rely on them for accurate information.”
Sugar described the Michigan statutes as “platitudes reflecting the rarely achieved aspirational goals of what should be a transparent system of protection for the vulnerable.”
On a national level, the sheer power that has been extended by Probate Courts over wards and family members raises the question as to what the point is of making any kind of will when it can be rendered meaningless.
Sugar’s book offers some preventative measures that include advance directives (power of attorney documents in financial and health matters) specifically forbidding the appointment of a professional guardian.
“Then you have to hope a judge reads it,” he added. “They often don’t.”
Williass also recommends establishing a durable power of attorney and an advance healthcare directive along with an estate plan.
“Make it with someone that you trust implicitly, who can take over for you in the event of a crisis or a health situation or something that may affects your ability to represent yourself,” she said. “But I would caution against full disclosure of the extent of your wealth to anyone other than the person you nominate.”
Ultimately, Sugar believes his campaign of raising awareness could at least begin to decrease the number of professional guardianships.
“If there must be guardianships, they must be moral, just and in the hands of family members—and not court predators,” he said. MSN
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