Elder guardianship: Between a rock and a hard place

Julie Ferguson & Marise London

Julie Ferguson wishes now she had never made the first phone call.

It was in the autumn of 2010, after she noticed strange notes by the phone at her mother’s house on Siesta Key: “Change will.” “Change power of attorney.” “Send money to Tennessee.”

Ferguson says she worried that her mother — then 81 and clearly already having problems with memory and reasoning — was sending money and jewelry she could not afford to lose to a family member who had moved away. An attorney advised her to get help from the Department of Children and Families’ Adult Protective Services division.

“I was scared,” she recalls. “I thought, ‘I’m not going to be able to keep her in her house and that’s all she ever wanted.' ”

Four years later, Marise London — for years the owner of a well-known art gallery and frame shop in Gulf Gate — has managed to stay in her beloved house. But decisions about her daily life there — who visits her and cares for her, where she goes and even what she eats — are made by professionals hired by the state of Florida, and paid with her money.

“I want to stay in my home until I die,” London wrote in February 2013. “I chose Julie to fulfill those wishes. I still choose Julie and trust Julie for my care as she knows my wants and needs. I hate for strangers to come inside my house.”

Ferguson’s attempt to free her mother from the system — or at least be named as the guardian of her person, if not her property — has gone nowhere. Ferguson still owes thousands to the attorney she hired to represent her, and cannot find another who will take her case.

Many Floridians who find themselves wards of the state took steps in the past to make sure their fortunes and futures were secure, signing documents and appointing people they trusted to manage their affairs if they could not.

But Southwest Florida’s guardianship case files are full of examples where life did not go as planned.

“I have spent the bulk of my career telling clients how to avoid guardianship,” says Bernard A. Krooks, an elder law attorney considered a national expert in special needs planning. “Having been around the block, I now understand that’s not true. Having all the right documents doesn’t guarantee that the people you choose will do the right thing, or that others won’t accuse them of doing the wrong thing.”

Florida’s guardianship statute — considered a model for other states — favors placing incapacitated adults in the care of family members. But feuding relatives can find in court that their desires and entitlements are trumped by what the system calls “the best interests of the ward.”

Unable to sift through a family mess, judges resort to professional guardians who can restrict access to the elder and spend money in ways the family cannot control. People who call Adult Protective Services hoping to resolve a family conflict can wind up regretting that they unleashed such a powerful force.

“If the family’s squabbling, it’s easier to name a third party and tell everybody it will be OK,” says Diane Menio, executive director of the Center for Advocacy for the Rights and Interests of the Elderly in Philadelphia. “It puts the family in a difficult situation, and not all those families are abusive. Even if they were abusive, it doesn’t mean that their mother or father doesn’t still love them and want to see them.”

A study of guardianship case files — the parts that are not confidential — reveals that professional guardians have a fairly routine playbook. After placing a ward in a facility or — less frequently — arranging for care at home, they inventory the assets and start selling them off. The car is usually first, then household goods, then the house itself. The assets are used to pay the caregivers, the attorneys and the guardian — until the money runs out, the ward dies, or both.

Professional guardians and elder law attorneys, perhaps jaded from struggles with dysfunctional or uncaring families, are quick to believe that relatives who buck the system are simply trying to protect their inheritance. But these relatives say they and their loved ones are being denied due process, because the only way to challenge the system is to spend more money on attorneys who fail to work on their behalf.

“The guardians have their attorneys, and that’s where the money really goes; it’s the attorney fees,” says Sam Sugar, an Aventura doctor of internal medicine who founded an organization called Americans Against Abusive Probate Guardianship. “The local guardianship companies make it their business to hire every lawyer that could possibly be in probate court to do some work for them. When a victim is looking to hire the best possible attorney, that attorney is not available.”

An exclusive club

For conscientious attorneys, guardianship cases can easily require more time and effort than most clients can afford, and their hourly fees are capped in some jurisdictions — including Sarasota and Manatee counties — but not others.

Court-appointed attorneys for prospective wards have no incentive to buck the system, says Menio.

“It’s really just any lawyer who happens to be in the hallway, and they can’t say no to the judge,” she says. “There’s very little compensation — unless the ward has money, and then they’re lining up for that.”

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Elder guardianship: Between a rock and a hard place