Monday, August 22, 2016
Courtroom trauma: Amicable divorce turned to guardianship nightmare
Nor did she expect that a professional guardian would change her medications and the locks on her house. Or that her legal separation from her husband would morph into a bewildering fight to regain control of her own life. Or that guardians and attorneys would wind up billing her for some $125,000 in fees and costs.
After all, as divorces go, the Hausburgs' was a familiar scenario: Children out of the nest, not enough in common anymore. Except for some tension over money, they expected a fairly amicable parting.
“We hadn't been living in the same house for two years,” recalls Cindy Hausburg, 59. “But we were never enemies. We had a wonderful life with the kids.”
But three years after starting the process, the longtime Sarasota couple are not yet divorced. Instead, Cindy and Jon Hausburg find themselves united once more, in a legal struggle they both find baffling — even though he is an attorney himself.
“Honestly, if anything, this has brought us closer than we've been in years,” says Jon Hausburg, 64. “Ironically, all this nonsense has put us on the same side.”
The pinnacle of irony was perhaps reached early last December: At a divorce mediation session, four attorneys representing Cindy Hausburg and her two successive guardians sat down with Jon Hausburg and his divorce attorney, and — according to a draft settlement agreement filed in court — offered to hand over control of the wife's property and medical care to her estranged husband, in exchange for $64,500 to be divided up among them.
In other words, after nearly 30 years of marriage, Jon Hausburg was given a chance to buy back the civil rights that a Florida court had taken from Cindy Hausburg, so that they could proceed to finalize their divorce.
“It was like I was a slave or a prostitute,” Cindy Hausburg says now. “I was put on the bidding block. They saw my property, and there's only $163,000 left of my marital assets. They weren't the least bit interested in me at all.”
As it turned out, the proposed settlement was never consummated, and Cindy Hausburg had her rights fully restored at a hearing on May 5. It appears likely that a new court monitor program — instituted in Sarasota County after a series of stories in the Herald-Tribune about Florida's troubled guardianship system — played a role in this outcome.
But the wrangling over guardianship and attorney fees continues, in what might be one of the most puzzling cases ever to befall an adult ward in the state of Florida.
When a spouse involved in a divorce is unable to make decisions because of frailty or cognitive impairment, it is not unusual for a court-appointed guardian to act for that person in legal proceedings.
But Cindy Hausburg's year of guardianship — begun with her consent and then continued against her will — reflects an entirely new twist on the law, according to specialists in the field.
“I can honestly say I have not heard of that,” says Bernard A. Krooks, a New York elder law attorney considered a national expert in special needs planning. “That's a first.”
The guardianship statute was designed to protect Floridians who lack capacity, because of age or infirmity, to make important decisions about money, relationships, employment, medical care, housing or even who they think should be the next president. Anyone can petition the court to remove an individual's freedom to determine his or her own destiny. Most adult guardianships involve wards so cognitively impaired by a brain injury or progressive dementia that they need someone else to safeguard them from fraud, abuse or self-harm.
But critics say this legal system, easily set in motion and difficult to derail, often ignores basic civil rights. Much of it plays out in secret, to protect the ward's privacy. When a ward has money, the system has built-in incentives for guardians and attorneys to pay themselves more than they otherwise might. And even after recent efforts to add state oversight, family members and friends of wards still complain of a routine process where professional guardians sell off elders' property, and move them from familiar surroundings to institutions where they decline and die. Guardianship activists have a chilling description for this sequence: “liquidate, isolate, medicate.”
Cindy Hausburg's case is hardly routine. While she has been treated for anxiety and depression, she does not begin to fit the description of an elder with irreversible dementia. While she had little understanding of what a legal guardianship is, she says, she was cleared by a medical doctor to enter into that status of her own free will.
Several months after hiring a new attorney in October 2014 to revive divorce talks that had faltered, she voluntarily placed her property under the guardianship of Lutheran Services Florida, a nonprofit agency that serves both indigent wards and those with the means to pay $85 an hour.
“In early March 2015,” Cindy Hausburg said in a sworn affidavit submitted to the court, her divorce attorney “described the voluntary guardianship as a 'crash course' in finances to help manage my money based on the pending resolution of my divorce. Her reasoning, as explained to me, was since I had been a homemaker for over 25 years that this guardianship would teach me how best to invest my money, how to shop around for the best and affordable insurances such as car, medical, home, etc. None of this was ever done.”
That attorney, Melinda Delpech of the Band Law Group in Sarasota, says everyone working on Cindy Hausburg's behalf acted with good intentions. But, she adds, “I think the system is flawed and was never designed to provide the kind of assistance that people suffering with certain mental illnesses require.”
In 25 years of practicing family law, Delpech says, she has only twice recommended that clients consider arranging for professional guardians to manage their property.
Barbara Palmer of Bradenton filed a petition for voluntary guardianship in December 2012, expecting, she recalls, the same kind of help.
Delpech's work on Palmer's behalf in family law court impressed a young woman who happened to be assisting in the case on the opposing side: Cindy Hausburg's eldest daughter Heather, who says she referred her mother to Delpech.
Palmer, now 62, has not been able to determine how much she paid for the two and a half years she spent under guardianship, and Manatee County court documents regarding wards are confidential. But she says she did not find the experience worthwhile: “I decided I no longer needed this person managing my finances; I certainly know how much I owe and what I'm doing to rid myself of debts.”
While it took until April 2015 to reach a final settlement with her former husband, Palmer says she was released from the voluntary guardianship at her request, in May 2014.
In the following year, Cindy Hausburg would not be disentangled from her own arrangement so easily.
'Sign me up'
Her husband Jon remembers his reaction when he heard his wife had acquired a guardian.
“I was told that she went into this thing because she wanted a crash course in finances, and they were going to teach her how to get Blue Cross and auto and help her with her bills, because she was not good with money,” he says. “I was told it was $85 an hour. I thought, 'The girl's got seven bills; it's three or four hours a month. Yeah, sign me up.' Little did I know that they were billing her $7,000 a month to do this.”
Four months later, however, a petition was filed in the 12th Judicial Circuit Court to have his wife declared incapacitated and remove all her civil rights. The petition was signed by Elizabeth Carlson, who Cindy Hausburg says worked on her divorce case for Delpech as a forensic accountant. Carlson has not responded to a voicemail from the Herald-Tribune requesting comment.
“I did not initiate — nor did I ask anyone else to initiate — the involuntary guardianship of Ms. Hausburg,” Delpech says. “With the benefit of hindsight, it is clear that this was not the right solution to the problem.”
Carlson submitted a document with her petition in July 2015 describing Cindy Hausburg as a “forty-seven-year-old woman” who was unable to make “appropriate” financial decisions and was not properly taking her medications. She “frequently pays bills her Guardian has already paid leaving no funds for her necessary expenses,” the document claimed, and she “miss's appointments even when reminded.”
What happened next should not have happened, guardianship attorneys who agreed to discuss the case have said.
On Sept. 3, 2015, the court-appointed lawyer who represented Cindy Hausburg, Robert “Tad” Drean, and the lawyer for Lutheran Services appeared before Judge Charles Williams and told him that they would file a written stipulation regarding her incapacity if he would sign the orders to declare her incapacitated and appoint a new guardian with power over her medical and legal decisions as well as her finances.
“The stipulation actually just got executed on the doorsteps of the courthouse, so to speak,” Drean told the judge, according to a transcript of the hearing. “And so I'll be — I'll be filing it the moment I — return to my office, your honor.”
Asked to comment for this story, Drean requested questions in writing, then said in an email that he could not answer them because of “ethical duties, confidentiality issues, and attorney-client privilege.”
The stipulation, filed after Cindy Hausburg's incapacity hearing, quoted medical examiners' reports that “Her well being is in jeopardy because she does not keep doctor appointments;” “There is evidence that Cindy has been very careless with her money; and “Potential for exploitation is present.” The document also includes a handwritten addendum entitling Lutheran Services and its attorney “to be paid from the assets of the guardianship estate.”
Cindy Hausburg was not present in court that day. She says Drean advised her against it.
“He said, 'If you go, I will not be able to obtain as many rights for you,'” she says. “So of course I'm not going to go and lose more.”
Krooks, the New York guardianship attorney, says wards may sometimes be advised to remain silent at their incapacity hearings, but always have the right to attend them.
“How do you have a guardian appointed without them being a party to the process?” he asks. “None of this makes sense. To have a guardian appointed for someone who has capacity, and then turn around and say that client lacks capacity, makes no sense to me.”
Jon Hausburg says he first heard about the petition to have his wife declared incapacitated when he was in North Carolina helping one of his four daughters with a move. She got a frantic call from her sister Heather.
“Have you looked at your email?” he remembers his eldest daughter saying. “They're trying to commit Mom!”
To Cindy Hausburg, the view from inside her guardianship process appeared — well, crazy.
“They had a psychiatrist, a social worker and a nurse,” she says of the examining committee. “All three of them asked me to count back from 100 by sevens, and they threw out three words and later said, 'What were the three words?' And, 'Draw a clock and make it 10 after four.' And I said, 'Do you want dots on the clock? Arabic numbers, Roman numerals, what?' And after all that, they wrote that I was bipolar and had a tendency to spend too much money.”
As for the claim that she was double-paying bills, she wonders how that could even be possible after the guardianship began, because she had no money. Her husband paid a monthly allowance directly into her guardian's account.
Once the new guardian had charge of her medical decisions, Hausburg says, home health “babysitters” came to her house daily.
“It was $25 an hour, 12 hours every day,” she recalls. “They didn't do anything; they sat around watching TV and talking to me. They started messing around with my medication and it was making me loopy. I had been on the same meds for four years, and they cold-turkeyed me off of them.”
Because her guardian failed to pay the home health bills — unaffordable, given the amount of monthly support she receives from her husband — that account has been turned over to a collections agency, Cindy Hausburg says.
“My credit was 730 before they took it over,” she maintains. “It's below 300 now.”
In October, after she missed an exit on Interstate 75 and ran out of gas, her guardian arranged for her to check into a detox program in Tampa, although Cindy Hausburg insists she has no alcohol or drug problem. Jon Hausburg said he agreed to pay the $10,000 a month — “I said, if that's what she needs, yes” — and drove her to the clinic.
After a two-hour interview, both Hausburgs say, they were told the program was not appropriate for her. So Jon Hausburg drove his wife back to her Bradenton home, he says, to find her guardian's assistant parked in the driveway and a locksmith changing all the locks.
Like other Florida wards before her, Cindy Hausburg believes she was treated with less fairness than criminals receive in court.
“At least they can stand up and say guilty or not guilty; I didn't even get to say crazy or not crazy,” she says with a laugh. “They don't want the family knowing that they're trying to make you cuckoo with medications so they can justifiably lock you up, and then come in and change all the locks on your home. And I was charged $900 for that!”
Of all the attorneys working on her case, she says, only Drean talked to her. Repeatedly, according to his billing statements filed with the court, she asked him to intervene with her guardian.
“I finally got to get my Xanax back, at least,” she says. “Then I had to tell the caregivers, 'Oh, you need to call your supervisor so you can get the code to the lockbox so you can give me my medication. And then you need to fill out this form about what we did today.'”
Drean proved to be an atypical court-appointed guardianship attorney in two ways. First, these attorneys rarely have any contact with wards once the hearing process is concluded. While an attorney for the guardian continues to be paid from a ward's assets, the ward no longer legally has anyone to speak for him or her except the guardian.
“The role of the court-appointed attorney ends when the guardian is appointed,” explains Krooks, the New York elder law attorney.
Also unusual was the amount of interest Drean took in Cindy Hausburg's divorce case. According to fee petitions filed in court, of the $30,165 he has billed so far, at least $8,337.50 is directly attributed to divorce issues such as discovery of Jon Hausburg's assets, and work on the proposed financial settlement. This was at the same time that Melinda Delpech was billing for her work on the same issues — for a total of just over $45,000 so far.
In fact, Delpech's and Drean's billing statements show entries totaling at least $2,000 worth of billings for communicating exclusively with each other.
“The judge appointed various professionals to serve specific roles in the involuntary guardianship,” Delpech says. “I had no choice but to work with them. ... I was very cognizant about the mounting attorney and other professional fees throughout the case and was vocal throughout the process about trying to rein them in.”
One issue that commanded attention from both Delpech and Drean, according to their fee petitions, was the effort to determine Jon Hausburg's assets — a routine quest for a divorce attorney but not for a court-appointed ward's representative. A lengthy discovery process, he says, revealed that his multimillion-dollar family inheritance was not part of the Hausburgs' joint marital property. At this point, Cindy Hausburg had about $163,000 coming to her in the divorce, aside from her house and alimony expectations.
In November, Drean asked the court to consolidate the two cases — guardianship and divorce — in the interests of “judicial economy.” His motion mentioned a divorce mediation conference scheduled for December with Jon Hausburg, along with Delpech and attorneys for Cindy Hausburg's first and second guardians.
One question to be resolved — after it was clear that Cindy Hausburg could not expect a million-dollar divorce settlement — was how all these attorneys and guardians might be paid.
Melton Little, Jon Hausburg's divorce attorney, says the proposal that emerged from that Dec. 2 conference — to make his client the guardian of his future ex-wife in exchange for an agreement on fees — represents the kind of “out-of-box thinking” that such mediations are meant to encourage.
The deal was one way, he argues, to resolve a case that was getting out of hand.
“I've never seen one take on a life of its own like this one,” he says. “I'm not faulting anybody for what happened. I just think the case got enormously expensive and enormously litigated.”
But Jon Hausburg says the proposal was sparked by an offhand comment he made to express his dismay — both at the number of people who showed up for the mediation, and the fees they were demanding.
“Until that mediation in December, I had no idea that they were racking up that kind of money,” he says. “I said, 'I'd be a better guardian than you; at least I'm free.' The next thing I know, they're actually taking me up on it. When they realized that the money was going to stop because I was going nuts, suddenly she didn't need so much attention and they were willing to turn her over to me.”
'Not a cocktail party'
The unusual settlement effort came to nothing. One snag appears to have been the proposed cap on fees; another was Cindy Hausburg's refusal to sign releases that some attorneys reportedly wanted. But a turning point in the case came early this year, after the Herald-Tribune reported on state Sen. Nancy Detert's bill to reform the guardianship process.
Cindy Hausburg happened to see the January story online, and wrote in the comments section about her predicament. Her plea was read by William Eppley and Pam Vergara, Brooksville attorneys who had represented a client in another Sarasota guardianship case profiled in the Herald-Tribune. In March, Eppley entered the Hausburg divorce case on behalf of Jon Hausburg.
Soon afterward, Cindy Hausburg filed her own petition to have her rights restored, called a “suggestion of capacity.” Drean's billing records indicate that he had been working on a restoration of rights for her, but he never filed it. Instead he asked Judge Williams to appoint a court monitor to investigate the guardianship, citing negotiations that had “dragged on for months” along with “the complexities of the matter, Mrs. Hausburg's dissatisfaction with her prior temporary guardian, her current limited guardian, her divorce attorney, and her court-appointed counsel.”
Williams designed the court monitor program, partly in response to a Herald-Tribune series examining the guardianship process, as a way of ensuring “that not one person slips through the cracks.” This is the first year of its existence, and the experiment appears to have had an impact in this case: Less than a month after monitor Dana Yawn submitted her confidential report, at a May 5 hearing Williams made restoring Cindy Hausburg's rights his first order of the session — even though it was not among the topics set for discussion that day.
“OK,” he said after this swift action. “That takes care of the suggestion of competency, so what do you want to do next?”
With nine attorneys in the courtroom and one on the telephone — several of them asking to abandon a case that had spiraled out of control — the hearing was at times a chaotic affair. “This is not a cocktail party,” Williams said at one point, when Cindy Hausburg's sister stood and attempted to speak.
The guardianship was suddenly, effectively at an end, and the divorce proceeding was in limbo. What remained to be hashed out — and still remains before the court — was whether Jon Hausburg should be held liable for all the fees that piled up during his wife's yearlong experience as a ward of the court.
Delpech, who had asked for a decision on a motion to be paid for her work on the protracted divorce case, so she could withdraw as Cindy Hausburg's lawyer, expressed little hope that her issues would take precedence.
“Melton Little and I got kind of pushed into this guardianship proceeding because we were trying to get these folks divorced with this going on in the background,” she told the court, “and it turned out to be the foreground and the divorce is the background.”
Little, the lawyer on the speakerphone, also seeking permission to withdraw as soon as his client found another family law attorney, summed up the level of confusion that had begun as an apparent effort to help a divorcing homemaker learn some financial skills.
“We got in this case as family law attorneys, and I think we did a pretty decent job helping the parties reach some agreement,” Little said. “The problem has been the amount of the fees and costs incurred in the guardianship proceedings and whether those fees and costs are going to be borne by one, both, or either of the parties in the divorce case. And that's the problem, and that's why at this point, it's just over my head.”
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Courtroom trauma: Amicable divorce turned to guardianship nightmare