By Kristin Thorne
NEW YORK (WABC) -- More
than 108,000 people in the Tri-State live under court-appointed
guardianships and a six-month long investigation by Eyewitness News
found that the adult guardianship system in our area is plagued by
several concerning issues, including courts not keeping track of
guardianship records and guardian commissions, guardians filing
incomplete paperwork, courts not having sufficient oversight of
guardians and people questioning the power provided to guardians,
including the ability of guardians to isolate people from their family
and friends.
Eyewitness News
investigated the guardianship case of Nathaniel LaMar Junior, of Cobble
Hill, and found the guardian did not notify the court of LaMar's death
until five months after his death.
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| Nathaniel LaMar Junior, born in Atlanta, was a writer and editor. He lived most of his adult life in Cobble Hill. |
Under the law, guardians are supposed to notify the court regarding the death of their ward within 20 days of the date of death.
The
delay held up the millions of dollars LaMar had bequeathed to the
Brooklyn Queens Land Trust, the Brooklyn Children's Museum, Cambridge
University, Howard University College of Medicine - where LaMar's father
went to medical school - and Phillips Exeter Academy - where LaMar went
to high school.
The guardian also wrote the incorrect date of death for LaMar on the official court filing.
In
addition, the death certificate states LaMar's education as "unknown,"
although LaMar was one of the first Black men to graduate from Harvard
University in 1955 and studied at the University of Cambridge where his
writing was admired by poet Sylvia Plath. LaMar later edited projects
for Martin Luther King Jr.
The death certificate also states that LaMar was not in the armed forces when he had served in the U.S. Army.
The
court-appointed guardian, Renee Oppenheimer, told Eyewitness News in an
email that the statement of death was delayed because the funeral home
had to make several amendments to LaMar's death certificate.
As for the incorrect date of death, Oppenheimer said it was a typo.
LaMar's
friends, who had known him for 20 years, approached Eyewitness News
investigative reporter Kristin Thorne with concerns about LaMar's care
under the guardianship."My life
would be a whole lot simpler if I didn't have to be involved in this,"
Larry Gile, LaMar's neighbor and friend said. "But I care deeply for
this man. He was a gentleman, a very kind person and I think we owe it
to him to just make sure that if there's things that happened in his
case that didn't need to have happened or shouldn't have happened that
they don't happen to someone else."
Around
2015, LaMar, who had no family, began to suffer the effects of
Parkinson's disease and decided he wanted to have a guardian.
In
2016, a judge appointed Oppenheimer, who had been the court evaluator -
essentially an overseer of court proceedings - on LaMar's first attempt
at getting a guardian to be LaMar's guardian.
Under the guardianship law in New York State, which is governed under Article 81 of the state's Mental Hygiene Law and the New York Court's Part 36 rules, a judge may not promote someone's court evaluator to be their guardian unless it's under "extenuating circumstances."
In
2015, Judge Michael Pesce in Brooklyn wrote he was promoting
Oppenheimer from LaMar's court evaluator to guardian because "such
appointment is in the best interests of Nathaniel Reed Lamar as he has
bonded with Renee Oppenheimer and request she be appointed as his
guardian."
Eyewitness
News was unable to find any evidence - a signed document or court
testimony - that LaMar chose Oppenheimer to be his guardian. The
transcript from the court hearing also doesn't mention LaMar stipulating
that was his desire.
Oppenheimer told Eyewitness News investigative reporter Kristin Thorne that LaMar had asked her to be his guardian.
In
the Tri-State, anyone can become a guardian - you do not have to be a
lawyer - and guardians can decide how much they get paid. They are paid
by the ward who they are assigned to.
"We're
not just stripping people of their rights, although that's a huge
deal," Nina Kohn, law professor at Syracuse University, said. "We're
also, in many cases, charging them to have their rights removed."
It's not uncommon for guardians to bill hundreds of dollars an hour, some as high as $600-$800 an hour.
The top paid guardian in New York State in 2022 netted $444,492.50, according to the state reporting database. To see the entire list of New York guardianship fees in 2021 and 2022 listed by court-appointed guardian, click here.
All guardians in New York City are required to take a guardianship training course administered by the New York County Lawyers Association.
Eyewitness
News requested Oppenheimer's certificate of completion of her
guardianship training, but she would not provide it to us.
A
spokesperson for the New York Courts said the court system does not
maintain a central database of the guardian certifications.
Lucian
Chalfen said if a judge asks a guardian for their certification, they
must provide it. We asked Chalfen for Oppenheimer's certificate of
training, but he would not provide it.
Soon into the guardianship, LaMar's neighbors felt something wasn't right.
"We
began to hear from the aides that his health, he was becoming losing
weight very rapidly," Julia Lichtblau, LaMar's long-time friend and
neighbor, said
Gile and Lichtblau said the guardian isolated LaMar from them.
"One day we were told, we could not, the aides weren't allowed to tell us anything anymore," Lichtblau said.
"I always felt like once the guardian was appointed or shortly thereafter we became sort of outsiders," Gile said.
Lichtblau
and Gile said they grew concerned that LaMar, who had an estate worth
more than $8 million, was not living the way he could have afforded to.
They worried he wasn't eating nutritious food and had concerns about the
condition of his apartment - that it was dark and dingy.
"This
was a very cultured, very comfortably off man," Lichtblau said. "We
began to be concerned that he wasn't as comfortable as he might have
been."
They said LaMar's townhouse
on Pacific Street - around the corner from his apartment, which LaMar
bought in the 1970s - also began to fall into disrepair.
Lichtblau and Gile said the tenants began to complain about rats, broken appliances and peeling paint.
Lichtblau
and Gile wrote to Oppenheimer with their concerns. She responded to
each one expressing she had dealt with the concerns of the tenants and
that LaMar's apartment was clean and he was being cared for
appropriately.
"I spent countless
hours attending to Nat's affairs and was diligent and attentive to Nat's
needs," Oppenheimer said in an email to Eyewitness News. "Although I am
only required to visit the ward four times a year, for this case I
visited him on average once a week. Between issues related to his assets
and his care, I can say honestly that hardly a day went by that I was
not somehow involved in some aspect of the case."
Oppenheimer
went on to write, "Nat did not consider his neighbors to be his
friends. He felt they were nosey and were only interested in meddling
into his business."
In 2017,
Oppenheimer asked a judge to bill $26,836.73 in fees to LaMar's estate
partially because, she wrote, Gile's involvement "resulted in a lot of
expended time on matters that would normally not take such effort to
complete."
Judge Michael Pesce denied the request, saying the fees were excessive and the highest ever brought before his bench.
Pesce,
who retired in 2019, said in his written response that LaMar did not
need a guardian in the first place, although Pesce was the one who
assigned Oppenheimer as guardian just two years prior.
He
wrote, "It also stands to reason that at its inception, a rational view
of this petition would lead anyone with an elementary knowledge of
Article 81 of the Mental Hygiene Law to conclude that Mr. Lamar was not
incapacitated but one who simply needed assistance in carrying out his
wishes and in activities of daily living."
Pesce
said Oppenheimer had acted with an "unfettered and extravagant holding
of hands," and that Oppenheimer's legal submissions for LaMar's care
were "improperly labeled, contain untenable enumeration of time spent on
tasks, are inordinately lacking in description of purpose, and most
glaringly contains what, to this Court, an excessive amount of time
billed and impermissible, improper labeling of 'legal services.'"
In 2017, Oppenheimer moved to sell LaMar's multi-million dollar townhouse located at 138 Pacific Street in Cobble Hill.
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| LaMar's townhouse when it was put up for sale. |
The
petition to sell the home contains several factual errors, including
the wrong ZIP codes for LaMar's residence and the wrong ZIP code for the
townhouse.
When Eyewitness News pointed out to Oppenheimer she had written the wrong ZIP codes, her written response was, "Ok."
Judge Lisa Ottley assigned lawyer Michael Benjamin as the broker to sell LaMar's property.
Benjamin
netted $210,000 off the sale of the property. Eyewitness News found
that Benjamin had donated $500 to Ottley's re-election campaign a few
years before.
Both Benjamin and Chalfen told Eyewitness News the donation did not present a conflict of interest.
According
to the New York City Department of Finance, the building was sold to
Edge Associates Pacific, LLC and Samuel Kooris. Edge Associates is
licensed in Delaware. Sam Kooris is the co-founder of Alchemy Ventures,
an affiliate of Alchemy Properties based in Lower Manhattan.
Eyewitness
News tried to contact Kooris about the sale of the building. A media
representative for Alchemy said Kooris did not want to comment.
Court records show LaMar's townhouse was sold for $3.5 million.
In
December 2021, the neighbors wrote to Judge Ottley because they said
Oppenheimer was not allowing them to visit or communicate with LaMar.
Lichtblau
wrote to Ottley's secretary, "Ms. Oppenheimer has forbidden the
caregivers and care manager from giving updates, shutting off the
indirect communication that has enabled his friends to keep in touch and
monitor his care. It's hard to understand how this benefits Mr. LaMar."
Oppenheimer
told Eyewitness News, "There was general concern over visitation during
the Covid pandemic and his (LaMar's) doctor did not want him exposed.
The neighbors reached out to the Court and after multiple conferences on
the topic, safe approaches for visitation were suggested and
implemented."
Shortly thereafter, Oppenheimer arranged for FaceTime visits.
In late January 2022, Lichtblau and Gile heard LaMar had been hospitalized. They couldn't find out where.
"You would think at this point, friends would be brought in," Gile said.
Under
New York State guardianship laws, guardians are not required to tell
family members or friends where their loved one or friend is.
"We did detective work and we found him," Gile said.
LaMar
was at a rehabilitation center in the Rockaways. Lichtblau and Gile
went to visit him and recorded video of him lifeless in his bed.
"I
was not happy with what I saw in that room," Gile said. "If hospice had
been an option that could have been more comfortable."
LaMar died a few days later at 88 years old.
Oppenheimer said she was unable to visit LaMar throughout his entire week-long stay at the rehab center due to a Covid concern.
For
months, Lichtblau and Gile never knew what became of LaMar's body.
Oppenheimer did not tell them, although they wrote to her only days
after LaMar died asking to assist with the scattering of his ashes on
the River Cam in England, which was LaMar's wish.
In
addition, on February 21, 2022, Rebecca Adlington - the daughter of
LaMar's late partner - wrote to Oppenheimer expressing her desire and
the desire of her sister to be present at the scattering of LaMar's
ashes.
"Do let us know if this is
something that Abigail and I could carry out, or at least if we could be
present when the ashes are scattered. It would mean a lot," Adlington
wrote.
Oppenheimer did not write back to anyone.
Eyewitness News confirmed with Kehilla Chapels, based in Brooklyn, that LaMar's ashes were spread over the River Cam.
Eyewitness
News also contacted attorney Ariella Gasner, who was appointed as the
attorney for LaMar's case, and is named in many of the public documents.
Gasner denied knowing who LaMar was. She said someone else handled his case and then she hung up on us.
Gasner
also billed fees for LaMar's case, which Judge Michael Pesce denied. He
said Gasner billed excessive fees for travel and he reduced her hours
for nearly every line item she had requested.
In
one instance, Pesce wrote, "Mrs. Gasner's work on this matter was
purely time consuming with little, if any, research, writing and
complexities."
After LaMar died,
Lichtblau and Gile wrote a letter to Milton Yu, New York State's
Managing Inspector General for Fiduciary Appointments, and the only
person in charge of hearing complaints related to the state's more than
49,000 court-appointed guardianships.
Yu
met with Lichtblau and Gile last summer and told them after reviewing
their concerns of LaMar's care and the sale of his townhouse that
because LaMar had chosen Oppenheimer as his guardian, he is unable to
investigate their complaints.
"Mr.
Lamar's nomination of Ms. Oppenheimer rendered her appointment outside
the reach of Part 36 rules, and outside the jurisdiction of my office,"
he wrote in the letter dated September 8, 2022.
Eyewitness
News clarified with the court that if LaMar had wanted to remove
Oppenheimer as guardian, he would have had to go through the same
process as someone whose guardian was appointed.
The
process of removing a guardian can be lengthy and involves the filing
of many court documents and motions. Most people have to hire a lawyer,
while the guardian can use the money from the ward's estate to fight the
removal proceedings.
Eyewitness
News investigative reporter Kristin Thorne also found in her
investigation of LaMar's case that Michael Benjamin - the lawyer
appointed to work as the broker for the sale of LaMar's townhouse -
received an $18,000 commission for another guardianship case for which
he served as the broker that is not listed in the court's public
fiduciary database and is also not accounted for in the court's official
records, according to the New York State court system.
Chalfen was unable to explain why the commission was not in the court's official records.
Benjamin confirmed with Eyewitness News that he received the $18,000 commission.
Chalfen
said, "Michael Benjamin could have been compensated, but the data we
have indicates that the judge didn't approve this compensation (there
was no UCS 875 Approval for Compensation form filed). The judge may have
approved the compensation but it is possible the clerk did not record
it."
According to the guardianship laws in New York,
if a person has been awarded more than $100,000 in compensation during
any calendar year, the person is not eligible for compensated
appointments by any court during the next calendar year.
Eyewitness
News asked Chalfen how the court can be sure Benjamin did not go over
the $100,000 threshold if the court is not keeping track of his
commissions. We also asked if the court is concerned other people with
guardianship-related appointments may be going over the $100,000
threshold.
Chalfen did not respond.
In
2021, the New York Court system received a $1 million grant to upgrade
its online guardianship case management system. Chalfen said the court
system is creating a data dashboard for easy reporting and analysis. He
said the new data system will allow the court to eliminate
county-specific data tracking programs, which he said, "have hindered
our ability to compile statewide data." Chalfen said the system should
be active by September 2023.
Chalfen
said the court system is also using the grant money to revise more than
a dozen guardianship forms and motion templates so they're easier to
understand by lay guardians, not lawyers. He said the court system is
"well on our way" toward building a new website to host all the
information. He said they're also creating training and educational
materials for lay guardians.
Kohn said the confusion and mismanagement of LaMar's guardianship case is not uncommon.
"It's
far too easy to appoint guardians for people and it's far too easy to
give those guardians much broader powers than they actually need to
protect the individual," she said.
Kohn said legislators have not made guardianship reform a priority.
"You
just have to think that these people are worth it and the reality is
that legislatures have not treated these people as worth it," she said.
Guardianships
occur when a judge finds an adult "incompetent," or "incapacitated." A
judge can also appoint a guardian if the judge decides it's in the
person's "best interest."
Often
described as "civil death," guardianships strip an adult of their
fundamental rights. Once under a guardianship, an adult loses the right
to make all decisions for themselves, including where they want to live,
how to spend their money and even whom they are allowed to see. The
guardian is given the authority to make all decisions related to the
ward's finances, living arrangements, social life and even their medical
decisions, including resuscitation.
"In many states, you can appoint a guardian for somebody who does not, in fact, need that guardian," Kohn said.
Anyone
can be subjected to a court-appointed guardian, even those with a power
of attorney and health care proxy, although having those two positions
filled in a person's life makes it much more difficult for a judge to
appoint a guardian.
Marjorie
Fister, originally from Oceanport, was taken into a guardianship in 2014
in New York City, despite the fact that her daughter, Ellen
Oxman-Fister, of the Upper East Side, was her health care proxy and
power of attorney.
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| Marjorie Fister |
Oxman-Fister said it started in December 2013 when she went to visit her mom in a hospital in Manhattan.
Oxman-Fister
had removed her mother from her mother's home in New Jersey because she
feared her brother was financially exploiting their mother.
"I
walked into the facility and there were a stack of documents next to
her bed," Oxman-Fister recounted. "I said, what is this? It was an
unsigned order to show cause for a guardianship proceeding brought
against her in Manhattan Supreme Court. It was brought by my brother.
He's not even from New York. How does he bring this against you in
Manhattan Supreme Court?" Oxman-Fister recounted asking her mother. "She
got upset. I got upset. I said, 'what do I do now?'"
In
2014, Judge Lottie Wilkins appointed a guardian for Fister citing that
Fister, "has certain functional limitations both of a physical and
cognitive nature which impairs her ability to meet her personal needs
and to manage her property and that she lacks sufficient understanding
and appreciation of the nature of these functional limitation and will
likely suffer harm as a result thereof."
Wilkins revoked Oxman-Fister's power of attorney and health care proxy for her mother.
He appointed attorney Paul Mederos - a complete stranger to Fister - as Fister's guardian.
Judges throughout New York State select guardians from a list of approved guardians.
"I
have fought ferociously for my mother's rights and still I couldn't
stop this train," Oxman-Fister said. "It's a runway train."
In
2018, the court attempted to remove Mederos as guardian because he
didn't file the required annual reports for Fister's case two years in a
row - 2015 and 2016.
Mederos came into compliance and was able to stay on as guardian.
Mederos told Eyewitness News he provided Fister "with the best care that I could."
Mederos
blocked Oxman-Fister from seeing her mother in a nursing home in the
Bronx, where she resided until her death. Mederos told Eyewitness News
he did it to protect Fister.
Mederos informed Oxman-Fister by email that her mother had died. The email is dated two days after Fister's death.
"She didn't deserve this," Oxman-Fister said in tears. "She died alone. She must have wondered where I was."
HOW DID WE GET HERE?
Since the 1980s, those involved in the guardianship system in the United States have been warning about a system that takes away the rights of elderly people - sometimes with little or no evidence - and then doesn't protect them against abuse and theft.
In
2011, the third National Guardianship Summit recommended Working
Interdisciplinary Networks of Guardianship Stakeholders (WINGS) for each
state. The idea was to organize stakeholders of the guardianship system
to draft policies for their states and to address the issues in their
guardianship systems.
Connecticut and New Jersey do not have a WINGS chapter. (Click to continue reading)
Full Article & Source:
Eyewitness News investigation finds alarming issues in Tri-State's adult guardianship systems
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