8:00 pm EST: The situation for elderly individuals in Pennsylvania in the Orphan's court has reached critical mass. As more victim's of this corrupt system come forward, the state's concern is not the victims, but rather, finding more predators to handle the cases they have decided would be profitable. While claiming that the problems are a result of too few guardians, no one mentions the fact that the real problem is that most of these people simply need some minor help and do not need guardianship at all.
One elderly individual is worth a fortune in this system. The guardians, attorney's, judges, medical providers, nursing homes, social services agencies are all using the victim as an cash ATM. With little to no accounting, no back ground checks, no monitoring of the guardian and attorney's activity's, the financial exploitation and physical and psychological abuse of the victim proceeds unimpeded.
This is a bird's eye view of the capturing of an elderly individual and how that individual is monetized, bought, sold, traded and exploited by the very people and system that supposedly exists to help and protect them.
State Rep. Mark Gillen sponsored the measure. It would also prevent those with felony convictions from serving as guardians.
Harrisburg, PA — A Berks County lawmaker has introduced legislation that would
require background checks on individuals up for appointment as guardians
for the incapacitated.
State Rep. Mark Gillen began seeking
co-sponsors for the bill two days after reading a Reading Eagle
investigation that found courts in Philadelphia and Montgomery counties
appointed Gloria Byars, a convicted felon, to manage the estates of more
than 75 incapacitated adults.
Advocates praised Gillen's bill,
saying it goes a long way to establish state standards. After more than a
decade of state working groups, advisory committees and task force
reports recommending standards for guardians that include licensing and
background checks that have yet to be put in place, these advocates
applauded Gillen for responding quickly to the issue the newspaper's
series raised.
But they also expressed concern that the bill's
language fails to specifically address whether agencies that delegate
court-appointed responsibilities to staff must conduct background checks
on those employees.
An attorney who specializes in elder law said the proposed law might
not prevent a case like Byars', who worked for a guardianship agency,
from happening again.
Critics say the felony ban would bar
relatives with a criminal conviction from being appointed, even if the
offense is decades old.
Nothing in state statute currently prohibits a court-appointed guardian from having a criminal record.
House Bill 2247, introduced Monday, would change that.
"We
think there is a void that needs to be filled," said Gillen, a Robeson
Township Republican. "Let's all agree that criminals should not
intersect with the assets of our frail elders."
Gillen's bill
would disqualify convicted felons from being appointed guardians and
require federal and state criminal history checks. It also bans
undocumented immigrants from serving.
The bill has bipartisan support and nearly two dozen co-sponsors.
"The
reason for getting on the bill is simply we have an obligation to
protect our most vulnerable citizens and certainly our elderly would
fall into that category," said Rep. Judy Ward, a Blair County
Republican. "I'm happy to be a co-sponsor."
The bill was met with mixed reaction.
While
advocates for the elderly said they don't want the court appointing
guardians with felony records, the type and date of a conviction is more
important. As written, any felony conviction, even convictions that
occurred decades ago involving charges unrelated to the care and
protection of vulnerable Pennsylvanians would be disqualifying.
Lawrence
A. Frolik, a University of Pittsburgh School of Law professor and
national expert on elder legal issues, called the bill heavy handed.
"The use of felony disqualification disproportionately impacts minority communities," Frolik said.
Sam
Brooks, senior attorney for Community Legal Services of Philadelphia,
which has become one of the leading advocates in the state for the
elderly, agreed.
"It could actually prevent family members who are
willing to serve from actually being able to serve," Brooks said.
"While we envisioned background checks, we didn't envision this for
family members."
Brooks added, "We would like to see the courts have some discretion."
Other
states with felony bans, such as California and Texas, make a
distinction between family members stepping up to serve as guardian for a
loved one and professionals who charge for services.
Advocates also note a criminal background check - to be paid by the proposed guardian - can be costly.
A criminal history check through the Pennsylvania State Police is $27, and an FBI check costs $18.
Concerned
the cost could be prohibitive for Pennsylvania families, Frolik
suggested the background check be paid from the incapacitated adult's
estate. Or, he suggested, an affidavit attesting that the proposed
guardian has never been charged or convicted with elder abuse or
financial exploitation could substitute for a criminal check.
Advocates also noted a criminal background check would flag only convictions.
"It's
very common for them to delegate powers to their staff," said Brooks,
the legal aid attorney in Philadelphia. "The question is would this
cover that? Probably not."
It's a possible employee loophole Gillen said he hopes the amendment process will iron out.
Gillen
didn't address all the crticism, but with lawmakers considering
hundreds of bills each session, he said his strategy with this and every
bill is to introduce a lean product, then seek input from stakeholders.
MARK C. PSORAS / For The InquirerHeidi
Austin, with her father, Josef Wituschek, displays a photo of guardian
Gloria Byars from Byars’ Facebook page during an interview last year in
Wituschek’s home in the Fox Chase section of Philadelphia.
Relatives of Edmund and Margareta Berg were shocked to learn, a
little more than a year ago, that the court-appointed guardian handling
the Fox Chase couple’s finances had a record of fraud, bad checks, and
forgery.
Around that time, Marie Frisby
began questioning the guardian appointed to help her husband, Hank. They
contend that his bills weren’t being paid and, as a result, they had to
sell their home in Wyncote, Montgomery County.
Meanwhile, Nu Vuong, a
naturalized U.S. citizen who doesn’t speak English, had been moved by
her guardian from her Kensington home to a Delaware County nursing
facility where no one spoke her language.
In each case, the guardian was the same woman, Gloria Byars of Aldan, Delaware County.
Questions about Byars’
financial management led judges to remove Byars last year as guardian of
the Bergs and Hank Frisby. She has since been removed from about 100
cases in Philadelphia, Montgomery, and Delaware Counties.
The experiences of the Bergs, Frisby, and Vuong demonstrate how
well-meaning relatives can be swept away by a guardian who may not be
acting in a person’s best interests. And Byars’ criminal record
underscores what some advocates say is a broader issue: a lack of
oversight in a beleaguered system responsible for caring for thousands
of often elderly Pennsylvanians.
“We
do have a crisis with professional guardians,” Philadelphia Orphans’
Court Administrative Judge Matthew Carrafiello said at a February
hearing at which he ordered Byars removed from all her remaining
guardianships. “We just don’t have enough.”
Nationwide,
guardians oversee an estimated 1.3 million adults and $50 billion of
their assets, said Brenda Uekert, principal court research consultant at
the National Center for State Courts. And as the population ages, the
demand for them is likely to grow.
In
Philadelphia, about 6,800 adults are under guardianship care, many of
whom are overseen by family members. Five lawyers also regularly serve
as guardians, and others on an occasional basis, as well as about 17
non-attorney professional guardians, like Byars.
Any interested person or agency may petition a court to
appoint a guardian. A judge then holds a hearing to determine if the
person is “incapacitated” — unable to manage his or her own personal or
financial affairs. Once appointed, a guardian is paid through that
person’s assets or income. Their fees vary: Some could charge $100 an
hour, observers say, but they also could make much less overseeing a
poor client’s finances.
Guardians
must file with the court regular reports of the assets, income, and
expenditures they manage. But otherwise, they are generally left alone.
The
only legal requirement to become a guardian in Pennsylvania is the
ability to read and write in English. And that in turn opened the door
to applicants like Byars.
Philadelphia
judges appointed her to 93 cases from 2015 until last summer, in most
cases based on a recommendation by the Philadelphia Corporation for
Aging. The nonprofit, which provides home care to more than 21,000 and
helps thousands more through its tip line, is supposed to act as a
watchdog for the city’s most vulnerable citizens.
But
an attorney for the agency told a judge at a hearing last year that PCA
did not know about Byars’ convictions for fraud and bad checks — a past
that a simple Google search would have uncovered.
Abbey
Porter, an agency spokeswoman, declined to discuss why PCA had
recommended Byars and whether the agency had conducted a background
check. She wrote by email that PCA is “aware of the complexities and
challenges of the guardianship system, including the ‘vetting’ of
guardians.”
Byars,
57, has not been charged for her role in any guardianship cases. She
repeatedly has declined to speak to the Inquirer and Daily News, when
approached in person or through phone calls and letters left at her
office and home. Lawyers representing her also have declined to comment.
Diane
Menio, executive director of the Center for Advocacy for the Rights and
Interests of the Elderly (CARIE), in Philadelphia, said Byars’ record
shows agencies and courts need more due diligence in choosing guardians.
“Someone
convicted of financial crimes is certainly not someone who you want
managing an incapacitated person’s finances,” said Menio. “This whole
thing is based on trust.”
‘Unbelievable’
Court
records show that in 2005, Byars was charged in Virginia
with defrauding several people by using their discarded credit-card
convenience checks, fished out from post-office trash cans. She pleaded
guilty that October and was later sentenced to 37 months in federal
prison and ordered to pay $29,503 in restitution.
After
completing her term in December 2007, which included stints in a
halfway house and on home confinement, Byars, who had once lived in
Camden, moved to Delaware County. Her supervised release, which ended in
December 2010, barred her from working in a job that required her to
handle money or have access to financial accounts.
At some point, she began working for Robert Stump, a guardian and owner of RES Consulting in Havertown. According to one LinkedIn account, she worked there from 2008 to 2016. Stump did not return calls seeking comment.
The
same LinkedIn account says Byars received an associate of arts degree
in business administration from Kaplan University in 1981. A spokeswoman
for Kaplan, headquartered in Chicago, said the university, which offers
online courses, has no record of Byars’ taking classes.
In 2016, Byars branched out on her own, opening Global Guardian Services in Lansdowne, Delaware County.
That
Dec. 6, Byars was appointed guardian for the Bergs, upon PCA’s
recommendation. The couple, both in their 80s, didn’t want to leave
their house on Borbeck Avenue, which they bought in 1961, relatives
said.
But
in late December, Margareta Berg was discharged from a hospital and —
without the knowledge of her brother, Josef Wituschek — moved to a
Montgomery County rehab facility. A panicked Wituschek and his daughter,
Heidi Austin, then tried to call Byars, only to learn that she was in
Spain, they said.
That
January, Byars moved the Bergs into a Montgomery County nursing home,
then in February 2017 had their Fox Chase house cleaned out to sell it.
An
accounting filed by Byars last year said she collected $4,487.50 in
guardianship fees from the Bergs from January to July, a sum that
consisted of monthly fees of $100 or $200, plus $2,000 for her to
oversee the two-day cleanout of their house. (It’s unclear how much she
made from all of her guardian cases, but court records show that she
finally paid off her restitution in the federal fraud case by February
2017.)
After Byars sought court approval to sell the house, Wituschek hired a
lawyer. Attorney Daniel McElhatton learned that the company Byars had
hired to clean the house, DEPCO LLC, was owned by Byars’ husband, Leon
DeShields.
Mark C. Psoras / For The Inquirer
Heidi
Austin displays a photo on her phone of her aunt and uncle,
Margareta
and Edmund Berg, as her father, Josef Wituschek (center),
stands with
her. At right is Wituschek’s attorney, Daniel McElhatton.
The
lawyer says he found it “unbelievable” that Byars didn’t disclose the
conflict of interest. He opposed the sale of the house and an $11,000
payment to DEPCO, alerted Orphans’ Court Judge John Herron to Byars’
criminal convictions, and asked the judge to remove her as guardian.
At
a hearing in July 2017, Herron scolded Byars for failing to disclose
the conflict and for not getting his approval to pay DEPCO. “It was
self-dealing and should not have happened, and it should be refunded
immediately,” the judge said.
McElhatton
also questioned thousands of dollars in other withdrawals Byars had
made from the Bergs’ accounts. Byars said she paid $5,000 in cash to the
Bergs’ nursing home, but didn’t get a receipt – a step Herron called
“negligent” and “reckless.”
Herron
ordered Byars removed as the Bergs’ guardian and as guardian of 31
other active cases. He appointed Wituschek as successor guardian for the
Bergs. Wituschek had previously not been able to serve because he was
mourning the death of his wife.
Byars
has since reimbursed the Bergs the $11,000 paid to her husband’s
cleaning company, $5,200 for an unexplained cashier’s check she wrote
from their account, and an additional $900 she collected from an auction
of valuables from the cleanout of the Bergs’ house. The family is still
questioning other expenses and items they suspect are missing.
At
the July hearing, Byars’ then-attorney Robert Feliciani III, said she
had 113 active guardianships, mostly in Philadelphia and Montgomery
County.
Sam
Brooks, an elder law attorney at Community Legal Services of
Philadelphia, said other professional guardians at times carry caseloads
as large or larger. A manageable caseload is closer to 40, he said, but
to make a profit, guardians deal in volume, he said.
“There’s
no money in it, for the most part, unless you have a person who’s
incapacitated who has a substantial estate,” said Menio, the advocacy
center director.
Guardians
can still make money from low-income clients. They are assured $100 a
month if the person is in a nursing home and receives medical
assistance. They also can petition the court to sell a person’s house,
then request compensation from the sale.
Billed for a birthday party
Hank
Frisby was a Philadelphia police officer from 1960 to 1980, rising to
the rank of sergeant. He then served full time in the Pennsylvania Air
National Guard, and later in Montgomery County’s human resources
department.
In
early 2016, though, he was separated from his wife, Marie. After a
nurse who was taking care of him at his Wyncote home suspected he was
being abused by a relative, the nurse contacted the Montgomery County
Office of Aging and Adult Services.
That
March, Montgomery County Senior Judge Stanley Ott deemed Hank Frisby
incapacitated after finding that he suffered from dementia and had
problems paying his bills. The Office of Aging had recommended Stump’s
company, RES Consulting, and Byars, who at the time was still working
for Stump, was appointed his guardian, court records show.
While
the Frisbys agree that his finances weren’t in the best of shape, they
say that in the ensuing months, Byars didn’t pay his mortgage,
real-estate taxes, or income taxes.
But
she threw him a birthday party. In June 2016, he was invited to a party
that Byars threw for him and other clients at her home. The party
included an ice cream truck, a live band, food, alcohol, and boxes of
sheet cake, including one for him, Hank Frisby said.
“I didn’t know anybody there,” Hank Frisby, now 79, said in an interview. “I stayed a couple of hours and left.”
He thought it was nice, he said, until he later saw a $750 charge on his account for being at the party for six hours.
Later
that year, the Frisbys reunited, and Marie Frisby realized the state of
his finances. In December 2016, their house was targeted for
foreclosure.
Julie Shaw/Staff
Hank and
Marie Frisby in March 2018 in their Philadelphia apartment, where they
moved after having to sell their Montgomery County house.
They sold the house in May, then moved to the River Park section of Philadelphia.
Marie
Frisby, 70, said she has seen no indication of how Byars spent her
husband’s pension checks, totaling $80,000 a year, to his benefit —
except once, when she bought a stair lift for him at the Wyncote house.
She also said Byars wouldn’t let her see her husband’s bank statements.
“We had no charges about how much she paid anybody, just her fees on what she charged us to do for us,” she said.
Concerned,
she had filed a petition in court to have Byars removed as guardian,
contending Byars was failing to pay her husband’s bills. With the help
of a lawyer, Diane Zabowski, the Frisbys got Byars replaced as guardian
in June.
State
Sen. Art Haywood, the Democratic minority chair of the Aging and Youth
committee, said Thursday that Marie Frisby will be meeting April 5 with a
staffer in his office to see if there is any recourse for her husband.
Haywood, a former Wyncote neighbor of the Frisbys, said he found it
“outrageous” that they had to sell their home.
Haywood,
who represents parts of Montgomery County and Philadelphia, said his
staff is looking into the process of how guardians are appointed and
removed.
‘My mom is not a prisoner’
Vuong’s
son, Hue Quach, experienced similar outrage. On May 26, 2016, Byars was
appointed Vuong’s guardian. A week later, she transferred Vuong, then
73, to a Delaware County nursing home without telling her son.
Courtesy of family
Nu Vuong
“Not
only did she put my mom in this [nursing home] without telling me, she
prohibited me from going in and seeing my mom” without Byars’
permission, he said in an interview.
Quach
said his mother cried when he was allowed to visit her because no one
in the nursing home could understand her — she speaks Vietnamese and
Chinese.
He said he told Byars: “‘My mom is not a prisoner. She did nothing wrong.'”
Quach
then petitioned the court to be his mother’s guardian. At a July 2016
hearing, Judge George Overton appointed Quach co-guardian. Quach then
moved his mother to a South Jersey nursing home that has staff and
residents who speak Chinese.
Byars has since been removed from that case — and the others in surrounding counties.
The
final two removals came March 20 in Delaware County. The Orphans’ Court
clerk there, Mary Walk, said the office began reviewing Byars’ cases
after learning about her removals in other counties, but found no
evidence of malfeasance in the two cases.
At
the February hearing, Carrafiello, the Philadelphia Orphans’ Court
administrative judge, had said he was unaware of any malfeasance in
Byars’ caseload in his court. But he stripped her from the cases because
he concluded she was no longer up to the task of being a guardian.
Montgomery County officials declined to discuss why she was removed from cases there.
Calls for improvement
Unlike 18 other states, Pennsylvania does not require professional guardians to undergo criminal background checks.
A state Supreme Court Elder Law Task Force had
in November 2014 recommended that all guardians be required to undergo
criminal background checks in a wide-ranging report that examined
problems in the guardianship system, issues of elder abuse and neglect,
and access to the justice system for elders.
That decision would fall to the state’s Supreme Court justices. The court’s Orphans’ Court Procedural Rules Committee at
an April 20 meeting will be considering the issue of instituting
background checks, said Northampton County Orphans’ Court Judge Emil
Giordano, a committee member. His county already bars felons from
serving as professional guardians.
State Rep. Mark
Gillen (R., Berks) said in a March 23 interview that he soon would
introduce a bill requiring criminal background checks for prospective
guardians and prohibiting felons from serving.
Other legislators
also have been trying to improve the system. State Sen. Stewart
Greenleaf (R., Montgomery), chairman of the Judiciary Committee, last
year reintroduced a bill that would, among other things, require court
approval for any guardian fees.
Keelin S. Barry, a
Philadelphia lawyer who served on the task force and whose office
provides guardianship and elder law services, said “there is a huge
shortage” of people willing to serve as guardians, but a great need.
“The elderly population
has exploded,” said Barry, who was appointed to replace Byars as
guardian for Hank Frisby. “And people who in the past would have taken
care of their older family member, now have moved across the city or
across the country and are not able to take care of that person
anymore.”
After Marie Frisby's husband fell prey to an all-too-common financial scam directed at the elderly, Montgomery County's Orphans Court appointed a professional guardian to protect his estate.
The couple, who had separated over mounting debt and increasingly aggressive creditors, reconciled and Marie Frisby moved back into their colonial-style home on a quiet, tree-lined street in Wyncote. With a guardian in place handling the estate, the financial woes that had plagued Marie and Hank Frisby for more than two years finally seemed behind them.
And then a county deputy sheriff knocked on their door.
The Police and Fire Credit Union, the deputy said with an apology, was foreclosing on their property."I was like, 'This can't be true,' " said Marie Frisby, 70.
Then she added, speaking of her husband's court-appointed guardian, "Gloria Byars told me everything was being taken care of."
In 2016, Byars was named the guardian for Hank Frisby, 79, during the time the couple had separated and filed for divorce.
When the court rules an adult incapacitated and appoints a guardian, the individual loses the right to make health care decisions, to determine where he lives or how his money is spent. Guardians make those decisions.
If the Frisbys were astonished to learn the court-appointed guardian had not been paying the mortgage and other bills, their surprise would pale in comparison to the revelations yet to come.
Unbeknownst to them, Byars had been convicted multiple times of financial theft.Her most recent arrest came in 2005. She pleaded guilty to felony fraud and was sentenced to 37 months in a federal prison after cashing $20,000 in blank checks found rummaging through trash cans at a Virginia post office.
Federal dockets show Byars was paroled on supervised release in 2008, the same year - according to her LinkedIn account - she began working in Philadelphia with RES Consulting, which provides guardian services.
Judges rarely name family members to assume guardianship of the elderly, and nearly never deny a request to declare them incapable.
Advocates have raised concerns about the inability to monitor the system that protects the nation's vulnerable and elderly, and those concerns are illustrated in the way Berks County Orphans Court tracks annual filings: by hand, in a desk ledger.
The county's hand tally is expected to be replaced with an electronic statewide case management system by year's end that will allow Pennsylvania - for the first time - to track a variety of issues, including elder abuse.
Currently, no one can say how many adults are under guardianship in Pennsylvania or how widespread elder abuse by a guardian is.
No one tracks guardian caseloads, which, if too large, can hamper the quality of care. And, as yet, there are no statutory standards for who can become a guardian nor any mechanisms to flag the unscrupulous.
Guardianship is the process of determining whether an adult - usually 60 and older - is capable of informed decision-making. If they're not, a guardian with broad authority over the individual is appointed.
Because an incapacitated adult loses those rights, which are then given to a family member or professional, guardianship raises a host of civil liberty concerns. But the lack of reliable data, despite decades of hand-wringing, and a growing list of bad actors threatens to significantly undermine the public's confidence in the guardian system.
It's an issue policymakers will need to soon confront, as the number of older adults in the U.S. is projected to nearly double over the next three decades.
Given the magnitude of potential harm by a system with little to no monitoring, the Reading Eagle sought to examine court practices, industry trends and areas in need of public scrutiny. Fifteen months ago the newspaper began examining annual caseload reports and court dockets in three counties: Berks, Chester and Philadelphia.
Information available in the dockets varies by county.
Accessing the dockets in Berks and Chester required multiple trips to the counties' orphans court to look up individual cases that were entered by hand into a database for analysis. The newspaper looked at records for 2016.
Among the newspaper's findings:
Statewide, court filings have risen at a quicker pace over the past two decades than the demographic most likely to be involved in an incapacitation case: those 60 and older, which grew more moderately.
Although Philadelphia, Montgomery and Allegheny counties had more cases in 2016, Berks had a higher rate per capita: 4.18 per 10,000 population. Philadelphia had a rate of 3.86 and Allegheny 2.55.
*Adult Protective Services, a hospital or nursing home filed two out of every three petitions in 2016 alleging incapacitation in Berks, Chester and Philadelphia.
*Philadelphia's professional guardians carry significantly heavier caseloads than the nationally recommended ratio of 1:20. From 2014 through 2016, the top 10 professional guardians in Philadelphia were appointed, on average, to 52 cases.
*Among the reviewed cases from Berks and Chester resolved in 2016, the courts declared every adult before them incompetent. Not a single petition was denied, a finding that troubled advocates.
*Of the 325 Philadelphia cases in which the judge made a finding on incapacitation in 2016, only two were denied. Everyone else was deemed incapacitated and a guardian was appointed.
*Adult Protective Services favors the appointment of professionals. In 2016, for example, Berks Area *Agency on Aging recommended a professional guardian in 92 percent of their petitions, although the dockets in half of these identified family members living in the state.
*Despite the widespread belief that family members more frequently serve as guardian, professionals were more prevalent. For example, in Philadelphia in 2016, 73 percent of the appointments were held by at least one professional guardian.
