Appeals judge: Savitt case shows guardianship system in ‘disarray’

A panel with the 4th District Court of Appeal hears the guardianship case of senior Frances Berkowitz

A state appellate judge said from the bench that one of professional guardian Elizabeth Savitt’s most controversial cases is an example of Florida’s guardianship system in “disarray” — a system that is supposed to protect incapacitated seniors but instead “sucks the ward’s estate dry.”

Last year, then-Palm Beach County Chief Judge Jeffrey Colbath handed down guardianship reforms, many of which targeted specific actions by Savitt — such as the taking thousands of dollars in fees prior to judicial approval. Savitt is married to former Circuit Court Judge Martin Colin.

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Elizabeth Savitt, a professional guardian, is married to a former judge. Savitt’s lawyers practiced in front of her husband in other ... read more

 

“The reason why we find ourselves in this Byzantine muck, if you will, is because there is no clear strategy on who is ultimately responsible for that dignity of the ward or the preservation of the decedent’s estate,” said Judge Cory Ciklin of the 4th District Court of Appeal at a Tuesday hearing on the Savitt guardianship of Frances Berkowitz.

“Maybe something will come out of this case that, if nothing else, encourages an appreciation of how terribly the system is in disarray.”

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Judge Martin Colin. Palm Beach Post file photo

Ciklin’s comments during a hearing Tuesday morning were even more remarkable considering the law firm of his brother Alan — Ciklin, Lubitz & O’Connell — recently got hit with a  $16.4 million verdict for running up fees in a guardianship in front of Colin.

That federal case has since settled for a confidential amount to avoid a lengthy and expensive appellate process. But the troubled guardianship of Frances Berkowitz, a state case, is on appeal.

SPECIAL REPORT

A Palm Beach Post Investigation

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The Palm Beach Post’s award-winning investigative series, Guardianship: A Broken Trust, outlined the vast conflict of interest for Judge Colin as a sitting guardianship judge while his wife practiced as a guardian. He was removed from overseeing guardianship proceedings and announced his retirement.

The series also reported numerous complaints from families of Savitt’s wards and forced her cases to be moved. Colbath then announced his reforms.

Victim of fraud

The issue litigated Tuesday at the 4th DCA centered on whether a lawyer who sought a guardianship to protect his client, Berkowitz, could challenge Savitt for her actions and get her removed.

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Frances Berkowitz, with her husband Jerry Berkowitz. (Photo provided by WPTV News Channel 5)

 

Boca Raton attorney Webb Millsaps claimed in court documents that Savitt squandered Berkowitz’s opportunity to recover as much as $1 million from a bank and a Miami lawyer who assisted a caregiver in defrauding Berkowitz of her life savings. The senior died on Dec. 31 at age 86.

Palm Beach County Circuit Judge Howard Coates last year ruled Millsaps and his colleague, Donna Greenspan Solomon, had only limited standing to challenge Savitt. Coates ended up dismissing Millsaps’ only surviving claim that Savitt’s appointment was invalid and may have been influenced by Judge Colin.

Millsaps also argued that Savitt failed to account for $400,000 missing from Berkowitz’s bank accounts.

Instead, the former tennis pro turned guardian entered into a settlement that let the bank and other parties off the hook and instead used what was left of Berkowitz’s money to sue Millsaps and Solomon for the fees they took in collecting more than $800,000 from the caregiver.

Solomon, representing Millsaps on Tuesday, told the appellate panel the settlement Savitt made with the bank and caregiver never was formally approved by any court.

Solomon told the appellate panel — which included Judge Mark Klingensmith and Associate Judge Mark Belanger — that Savitt paid off a $308,000 foreclosure judgment on a home she owned shortly after receiving her appointment in December 2014.

Savitt’s attorney previously told The Palm Beach Post that documentation was provided to the Clerk of Court & Comptroller showing the money used to pay off the foreclosure judgment came from Savitt’s personal accounts.

No standing

If the appellate court rules in Millsaps’ favor, Solomon said, the decision would allow the Berkowitz heirs to unwind the settlement made by Savitt. The family members have also indicated they plan to sue Savitt.

John Carter, a Boca Raton lawyer representing the family who was present at the hearing Tuesday, said Ciklin’s questions and comments highlighted the core problem with guardianship in Florida: “The need for protection of the elderly and their assets from all persons with a financial stake in the process.”

Attorney Roger Levine, arguing on behalf of the guardianship on Tuesday, told the DCA panel that Millsaps, despite being the one who sought guardianship protection for his client, had no standing under the law to challenge Savitt’s decisions.

Klingensmith, though, said he reads the state guardianship law as giving broad authority to allow interested parties to intervene if a guardian is “not acting in the best interest of the ward.”

Ciklin also indicated Coates could have acted unilaterally to get to the bottom of Millsaps’ accusations against Savitt.

“The stark reality is whatever judge is assigned to a particular case is the person in charge. Period,” Ciklin said. “This, I would suggest, needs to begin and end with that judge.”

Solomon said she pleaded with Coates to look at the Berkowitz case and “find out what is going in our guardianship system in the state of Florida.”

“The absurdity of all this to some extent is that the ward ends up paying for everybody,” Ciklin said. “And all the while the ward’s estate is just being sucked dry.”

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Appeals judge: Savitt case shows guardianship system in ‘disarray’

Chief judge bans Savitt’s billing practices in guardianship overhaul

For years, families of incapacitated seniors have watched in helpless horror as some professional guardians — and their cadre of aggressive attorneys — siphoned off their loved one’s life savings through fees and unnecessary litigation.

But in an administrative order handed down last month, Palm Beach County’s chief judge attempts to turn this world of rampant self-dealing inside out. At the same time, he addresses the substantive complaints against controversial professional guardian Elizabeth Savitt — the wife of Circuit Judge Martin Colin.

Chief Judge Jeffrey Colbath’s administrative order on Oct. 26 prohibits — through an application process — Savitt’s practice of taking thousands of dollars from incapacitated seniors as so-called retainers before getting approval from a judge.

The Palm Beach Post in its series, Guardianships: A Broken Trust, could find no other guardian save for Savitt who takes money before judicial approval. The chief judge said the stories contributed to his decision to overhaul the guardianship system.

Colbath’s overhaul comes as the state Legislature and the Florida Supreme Court act to address concerns about unethical guardians preying on seniors and other incapacitated adults. And it comes, as promised, after Colbath’s initial reforms in February following The Post’s series.

Palm Beach Circuit Judge Martin Colin

“The goal is to have a basic level of practice from the Palm Beach County professional guardians,” said Colbath in response to a set of written questions from The Post.

Taking out bad guardians

The damage a rogue professional guardian can do is heart-wrenching.

Families have told The Post how seniors were taken from their homes secretly by guardians and placed in assisted living facilities. There were cases where relatives of the senior were banned from seeing their loved ones under false pretenses. Guardians also got marriages annulled and persuaded the court to ignore long-established living wills. The chief judge’s far-reaching order for the first time sets down a means to remove bad guardians from the court’s newly established registry.

“It is a standard policy in the circuit to have language in our applications/contracts which allow for the removal of the professional if there is a violation of a policy,” Colbath told The Post.

The order also addresses favoritism and conflict of interest and insists the profession give back to the community.

But much of the meat of Colbath’s reforms can be found on the new nine-page application guardians must complete if they want to get on the county registry.

It asks specifically if the guardian has any relationship through “blood, marriage, financial or occupational to any person or service providers in the guardianship arena or associated with any guardianship proceedings in Palm Beach County.”

After The Post found that the life savings of incapacitated seniors flowed in the home of Judge Colin via his wife’s guardianship work, the chief judge in February moved Colin out of the Probate & Guardianship Division. Colin then announced his retirement effective Dec. 31.

He also ordered all of Savitt’s cases transferred to the North County Courthouse out of concerns of favoritism outlined in The Post’s stories.

Professional guardian Elizabeth Savitt

Colbath then commenced a study of guardianship in the county to consider how it could be improved. The reforms stem from that panel, the evolving rules for the new statewide Office of Public and Professional Guardian and stories by The Post, he said.

“The group looked at block billing and advance fees,” he said. “The group determined that uniformity and a standard of practice would make for a more efficient system.”

The application asks guardians if they ever filed for bankruptcy or been subject to a foreclosure action or default on a student loan and to explain.

Savitt was under a judgment of foreclosure for several months before she paid it off with $308,000 in cash, days before her home was to be auctioned in March 2015. In two of her guardianships, parties involved have questioned in court whether she paid off the mortgage with her wards’ money. No judge has decided whether those accusations are true.

Savitt still works as a professional guardian.

The judge’s wife responded to Colbath’s order in an email to The Post: “This new Administrative Order appears to be an effort to better the Professional Guardian system in Palm Beach County, which I applaud. Those of your frequent sources who readily complain about professional guardians and the courts will not be happy with the good intentions of this Order.”

Her attorney, Ellen Morris, could not be reached for comment, but the lawyer has vigorously defended the judge’s wife — including the taking of fees prior to judicial approval.

Under the order, professional guardians must annually apply for appointment to the registry and satisfy the requirements set by the state. They must agree to standards in the application, including billing procedures. And they must agree to accept a pro bono case each year, offering their services free of charge.  (Click to Continue)

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Chief judge bans Savitt’s billing practices in guardianship overhaul