Monday, March 23, 2015

Guardianship horror stories may lead to change

Dr. Sam Sugar has a pretty clear picture of how he thought life would be after he retired to Miami from Skokie, Illinois

The physician saw himself in a bathing suit, on the beach, spending time with his wife and grandchildren. He’d travel, read and have time for himself.

But after his wealthy, widowed mother-in-law became a ward of the state — her affairs controlled by a coterie of lawyers, nurses and a court-appointed guardian — Sugar channeled his anger into political activism. Now he is on the verge of a breakthrough.

With Sugar and the organization he started, Americans Against Abusive Probate Guardianship, leading the charge, Florida lawmakers are in the process of overhauling the state’s guardianship laws. The changes are aimed at installing some checks and balances to ensure that guardians, who have considerable power once they are appointed to a case, are qualified and that their actions can be reviewed.

“We have accomplished something monumental,” said Sugar, who has testified in Tallahassee on behalf of the overhaul.

Sugar, who lives in Aventura, spent countless hours researching the laws after he and his wife engaged with her siblings in a brutal years-long squabble over the well-being of his mother-in-law, Idelle Stern, also known by her Hebrew name Rebbetzin Chaya'le Stern.

As often happens in such situations, there were fingers pointed in multiple directions. Sugar claims the guardian and lawyers, in cahoots with the courts and his wife’s siblings, siphoned millions from Stern’s accounts while keeping her isolated from him and his wife. The siblings and the guardian claimed that the Sugars moved to South Florida with designs on Stern’s money, and that they were simply protecting Stern from exploitation.

One of the few things that is not in dispute is that the guardianship process and associated litigation cost everyone a lot of money. Stern, whose late husband was a rabbi and successful investor, died in 2013, leaving an estate partially drained and a family utterly divided.

It is hardly an isolated case. In December, the Sarasota Herald-Tribune published a series of stories, The Kindness of Strangers, asserting that Florida's guardianship system ignores basic rights. The news organization documented instances where guardians removed seniors from their homes and sold off their belongings, to cover the cost of providing services.

With roughly 3.7 million Floridians over 65, guardianship is big business. Many come to Florida from elsewhere upon retirement, and they bring their savings with them. As they age, some lose the capacity to manage their affairs, falling prey to exploitation — sometimes by family members or “friends,” sometimes by strangers. The guardianship apparatus is meant to protect them. When some children live close by and others don’t, it can exacerbate problems.

Under current law, family members, nursing homes and other people and institutions can petition the court system to have someone declared incapacitated. A judge will appoint a three-member panel, consisting of medical personnel or social workers, to examine the individual and render a judgment. They might ask questions such as who is the president, to determine the person’s grasp of the world around them.

If the individual is deemed incapacitated and there is not an appropriate family member to step in, he or she can end up a ward of the court. In such instances, the ward’s financial, medical and legal decisions are made by strangers, under court supervision.

It’s a growth industry, one reason the number of professional guardians has soared from less than 10 to 465, according to the state Department of Elder Affairs. To become a guardian requires 40 hours of training and no felony conviction. Guardians, who have a legal duty to inventory their wards’ property and invest and manage the assets “as a prudent investor would,” are paid for their services at a rate approved by the court.

The Miami New Times and others have documented cases where the judges appointing guardians have received campaign contributions from those who benefit from the appointment.

Jetta Getty
Jetta Getty, the president of the Florida State Guardianship Association, said professional guardians are appointed as a last resort. In a letter to the House of Representatives, Getty said appointments come only “when dysfunction, exploitation, neglect, abuse or strife warrants.”

“Several testifying at the hearings [in Tallahassee] offered testimony from the family member perspective stating their view as victims of perceived wrongs and actions attributed to Professional Guardians,” she said in the letter. “Might I offer, if these family members were as innocent in their roles as they profess, no Professional Guardian would be considered for appointment by the Courts as the Courts under Statutes do give preference to family members serving in the role of guardian over the Professional.”

Getty said there are positive aspects of the proposed new legislation, but there are also concerns. She cited one measure that would require courts to appoint guardians on a rotating basis, taking any potential favoritism out of the process.

Elder law attorney Steve Martin from Lakeland told a Florida Senate panel that a rotation might not solve the problem in smaller counties.

“You’ll be rotating from a list of two or three people,” he said.

Added Shannon Miller, a guardian and elder care attorney from Gainesville: “It's going to really create a problem because guardians are people and wards are people, and they need to fit properly.”

Sugar’s story begins in 2010. He and his wife had moved to Florida. Stern, his mother-in-law, had her own apartment in Miami Beach and had round-the-clock care. The other siblings began to question whether the Sugars were exercising undue influence over Stern, whose husband died in 2004.

According to Sugar, on April 15, 2010, there was a knock on his door and he was told he had 24 hours to get to court.

He said his mother-in-law was immediately assigned a temporary guardian. He said that meant that all of her life decisions — things like the purchase of groceries, the selection of a doctor and the spending of her own money — were now out of her control. He said he later would see invoices charged to the estate that disturbed him, everything from legal fees to bills for answering emails and opening envelopes.  (Continue Reading)

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Guardianship horror stories may lead to change


Betty said...

I am sorry this happened to the Sugar family.

Kathleen said...

It is simply not the case in Florida that professional guardians are appointed as the last resort!!! as the president of the Florida Guardian Association has stated.

Anonymous said...

Thanks, Sam, maybe the wife and I can come down and visit sometime.

My problem is guardian siblings who are little more than vultures. They could care less other than to hell-hole mom for safe-keeping and drugging; and won't send her out of state to us. It's about recklessly abusive and cruel power, dominion and control and not so much the money but, they'll take what they can get.

While LEGALLY the money is important, Mother, the individual became a thing, lesser than a victim. There's no regard before a judge's box for the human it would appear.

My evil siblings can have everything just give us my wife's mother to carry her through to her reward. The court I feel would never buy this, the lawyers would have a heyday.

There seems to be no reasonable recourse in Pennsylvania as the "incapacitated" ward's input is little more than dust.

Nancy said...

Jetta Getty is a real piece of work, isn't she? Wonder how she'd feel if it happened to her Mother?

StandUp said...

I agree with you Anonymous and I also agree with Nancy and am offended by Getty's remarks.

Anonymous said...

This from part 4 of the PA Elder Law Task Force Report (Pennsylvania)

Rule 1.6. Mediation by Local Rule or Special Order:
The Court, by Local Rule or special order, may direct the parties to participate in private or court-sponsored mediation.
Note: Rule 1.6 has no counterpart in former Orphans’ Court Rules.
Explanatory Comment: The confidentiality of mediation is provided by statute, see 42 Pa.C.S. § 5949.172
(The Task Force notes that Proposed Rule 1.6 would provide for mediation in all Orphans’ Court matters, and would not be limited to guardianship matters.)
2. The Pennsylvania Bar Association (“PBA”) is currently considering a proposal of the Orphans’ Court Mediation Subcommittee of its Alternative Dispute Resolution Committee to facilitate and encourage mediation by way of a model local rule. The proposal would provide for mediation of all Orphans’ Court matters.
3. The Task Force finds that mediation of guardianship matters has been implemented in other states and has the potential to provide benefits and ameliorate some of the problems associated with guardianship decision-making; however, there is a need to assess its disadvantages and how such a process would work in practice.

Anyone know if this has been implemented or how it works or doesn't work? Is it trickery thinking there is recourse at the probate without shark lawyers?

Anonymous said...

Jetta Getty's comment was so blatantly biased against family, I think she should be removed from her position.