Attorney fees provision sours support for guardianship overhaul

By: Nick Evans

Rep. Diane Grendell. Source: Ohio General Assembly.

A bipartisan team of House lawmakers is working on a sweeping update to Ohio’s guardianship laws. The changes stem in large part from recommendations offered by the Ohio Judicial Conference, and they come at a moment when Britney Spears’ conservatorship case has put added attention on the issue.

The problem? HB 488 also carries an unrelated provision granting judges the authority to hire their own lawyers without the approval of other county officials. And the Republican sponsor’s husband just so happens to be a judge — a judge currently suing his county commission in the Ohio Supreme Court.

On paper, Diane Grendell, R-Chesterland, makes sense as a sponsor for what she and Rep. Tavia Galonski, D-Akron, call a guardianship modernization bill. Grendell herself is a former judge on the state appeals court bench and she spent time as a guardian ad litem. But her familial connections are prompting pushback over the attorney fees portion of the proposal.

Grendell’s husband Tim Grendell is the Geauga County Probate and Juvenile Court judge. He’s engaged in a running battle with the county auditor over reimbursements for COVID-19 robocalls and local advertising for a program meant to help residents avoid probate court. In both instances, Grendell insisted to the public that “no tax dollars” were used for the message, but the auditor argues turning around and later asking for reimbursement would create “a public misrepresentation.”

More recently Judge Grendell found himself in the public spotlight for throwing two young boys in juvenile detention because they didn’t want to visit their father during the COVID-19 pandemic.

Rep. Grendell insists giving judges the power to hire outside counsel is a separation of powers issue.

“Right now, the executive branch and the legislative branch are able to get their own attorneys but judges cannot,” Grendell told the committee at the bill’s first hearing. “What happened to the equalness of judges in our state?”

But the attorney-funding portion of the bill faced a withering barrage of questions from fellow Republican Brian Stewart. He pressed the bill’s backers on singling out judges, asking why other countywide office holders like the auditor, recorder and sheriff, aren’t granted the same right to hire outside counsel.

“To my mind, the only situation where this is really going to exist is where the judge wants to sue the commissioners or another countywide officeholder and doesn’t have the funds for that,” Stewart argued. “Is there any situation where this would apply other than when the judge wants to sue fellow officeholders?”

Stewart also zeroed in on how the legislation caps attorney fees. The current language of the bill ties judges to same hourly rate as other officeholders, but it doesn’t carry the annual cap those officeholders face.

“You can have a lawsuit between the judge against his commissioners in which the Board of Commissioners is capped at, you know the $120,000 annual salary of the prosecutor,” Stewart said, “The judge can pay $300,000 to his outside counsel of choice. That’s not the intent, correct?”

Grendell quickly agreed to add the annual cap language to the bill. But as of the measure’s second hearing this week, no amendment has been offered. During that hearing, committee chair Rep. Brett Hillyer, R-Ulrichsville, seemed to indicate an amendment was forthcoming. Grendell didn’t respond to a request for comment. But in a statement, Rep. Galonski said the language on attorneys fees will be fixed, and like Grendell, argued it’s “unconscionable” for county officials to hold a veto over local courts.

“Only in the rare circumstances where a prosecutor will not or cannot represent a judge would the judge be able to hire their own counsel,” Galonski wrote. “We also propose a cap on legal fees which mirrors current caps.”

But even if the bill is addressing a significant problem for judges around the state, it’s clear that opponents are uncomfortable with the messenger. In written testimony, opponents pounced on Grendell’s involvement.

“This bill appears to have been written for the express purpose of allowing Judge Grendell to circumvent safeguards that protect public tax dollars from waste,” wrote Shelley Chernin. “It is the worst kind of judicial overreach.”

“It is apparent to all of us who follow government in Geauga County that this bill (…) is designed to address a problem that benefits only one judge in the state,” wrote Barbara Partington. “This judge is also the husband of Representative Grendell.”

Rep. Grendell wasn’t the only Grendell speaking on behalf of the measure at its first hearing.

Judge Timothy J. Grendell, Geauga County Probate/Juvenile Court. Photo from the Geauga County Court of Common Pleas Website.

Judge Grendell was on hand too, and in his comments he made it clear the proposed change is meant to make it easier for judges to play hardball in disputes with other county officials.

“If you have to go with your commissioners because they won’t pass your budget, and they won’t give you the money to run your court, you have to take the commissioners to the Supreme Court of Ohio,” Grendell said. “Which you don’t want to do, but it’s not your choice. It’s the fact that the commissioners won’t approve a budget.”

And Grendell would know. In addition to his fight with the county auditor, he’s currently suing his county commission in the supreme court over who controls the judicial purse strings.

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Attorney fees provision sours support for guardianship overhaul

 

Governor signs guardianship overhaul law

Gov. Susana Martinez

SANTA FE – Gov. Susana Martinez on Wednesday signed 23 bills into law, including legislation to overhaul a New Mexico guardianship system that had come under scrutiny in recent month for secrecy and financial irregularities.

The 60-page bill is designed to prevent abuse and exploitation of thousands of incapacitated people who are under court-ordered guardianship or conservatorship programs around the state.

The new changes are less sweeping than originally proposed, but involve increased transparency and greater involvement of family members. With the governor’s signature, they will take effect in July.

Meanwhile, the two-term Republican governor also struck down a bill that would have granted future New Mexico governors – not her – and other elected statewide officials their first pay raises since 2002.

Martinez had vowed to veto the salary increase legislation, which would have raised the governor’s annual salary from $110,000 to $121,000, starting in January 2019.

“Through a relentless commitment to responsible stewardship of taxpayer dollars – like balancing budgets and cutting taxes – New Mexico has a budget surplus of hundreds of millions of dollars,” Martinez said in a statement. “I will not waste a dime of it on doling out taxpayer dollars on pay raises for politicians.”

The legislation, Senate Bill 176, passed both legislative chambers by decisive margins during the recently completed 30-day session, with supporters saying some state elected officials make less money than their top appointees.

In addition to governor, the bill would have raised the annual salaries of the secretary of state, attorney general, state auditor, state treasurer, commissioner of public lands and the five members of the Public Regulation Commission.

Rep. Larry Larrañaga, R-Albuquerque, one of the bill’s co-sponsors, said the idea was floated because state workers and teachers are scheduled to receive pay raises under a $6.3 billion budget plan still on the governor’s desk.

Since state elected officials’ salary levels are set by state law, adjusting them requires both an appropriation in the budget bill and approval of a change in statute.

“We thought it would be a reasonable thing to provide an increase in compensation to state officials, too,” Larrañaga said.

Among the other bills signed by Martinez on Wednesday were five measures aimed at helping military veterans and their families. The governor said the bills reflected her priority of “protecting those who put their lives on the line for our freedom.”

One of those bills, House Bill 67, will make it a crime to make false claims about military service for personal gain. Such an offense will now be a misdemeanor, starting in July.

Martinez has until March 7 to act on more than 80 bills additional bills passed during this year’s legislative session. Bills not signed by that deadline are automatically vetoed.

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Governor signs guardianship overhaul law

Minn. nonprofits seek to overhaul legal guardianship system for vulnerable adults

Steve Allen & Candace Hanson-Johnson

As the final moments of their date night ticked away, Candace Hanson-Johnson burrowed her face into the chest of her longtime fiancé, Steven Allen, and begged him not to leave. In the six years since they met, the adult couple had yet to spend more than a few hours alone together on a single date. Even trips to the cinema required preapproval, and overnight stays have been out of the question.

“It’s like we’re being held hostage for a crime we didn’t commit,” said Allen, 34, of Apple Valley, who has a cognitive disability caused by fetal exposure to alcohol.

Like 15,000 other vulnerable adults in Minnesota, Allen lives under the supervision of a court-appointed guardian. For decades, these caretakers have been granted broad authority over the money, medical care and even the personal relationships of the “wards” they are assigned to protect. Once appointed, guardians are rarely removed, and even when abuses occur their sweeping powers often go unchallenged by the courts.

Now, a coalition of large Minnesota nonprofits is developing a less-intrusive alternative. With a $1 million federal grant, Volunteers of America of Minnesota and Wisconsin will lead a group of social service agencies in building a way to protect vulnerable adults while respecting their dignity and preserving their rights against overzealous guardians. And instead of relying on overburdened courts, the new system will connect people like Allen with relatives and teams of social workers who have expertise in caring for people with disabilities.

Advocates predict that if the model catches on, hundreds of Minnesotans could regain control over such basic decisions as where to live, whom to date and how to spend their money.

“This has the potential to be a revolutionary approach,” said Anita Raymond, project director at Volunteers of America. “We are seeking to change the culture in Minnesota of defaulting to the use of guardianship.”

Dinner and a little TV
 
In guardianship documents, Steven Thomas Allen is categorized as “an incapacitated person.” He needs a guardian, the papers say, because he “lacks sufficient understanding or capacity to make or communicate responsible decisions” and has “demonstrated behavioral deficits.” A Dakota County judge granted Allen’s adoptive parents all the powers allowed under Minnesota’s guardianship law, including control over his residence, medical care and personal property.

But Allen doesn’t see himself as “incapacitated” or helpless. He holds a job as a courtesy clerk at the Hy-Vee grocery store in Eagan, where he bags groceries and corrals shopping carts for $10 an hour. He cooks his own meals, can balance his checkbook and arranges transportation to and from work. Apart from needing reminders to take medications and pay bills, Allen insists he is capable of living without court-ordered supervision.

“Anyone who spent a day in my shoes would see that I’m not ‘incapacitated,’ ” he said on a recent afternoon after wrapping up a shift at Hy-Vee.

Yet many of Allen’s basic rights have been stripped away. He wants to move out of the group home in Apple Valley, a residence chosen by his guardians more than a decade ago, and move in to his fiancée’s apartment in Eagan. That request was denied by his guardians without explanation, he says. His social life is also carefully circumscribed: He is allowed only three “outings” from his group home each week, each limited to five-and-a-half hours. His fiancé is not allowed to visit his group home.

On nights out with Hanson-Johnson, Allen keeps a close eye on the clock to make sure he does not go over his allotted social time. On most nights, the couple settles for dinner at home and snuggling on a couch to watch “Law and Order” reruns before Candace’s mother rushes Allen home by his 9 p.m. curfew.

On a recent night, the couple cooked spaghetti and meatballs as they talked excitedly about plans to get tattoos. Allen’s tattoo would say, “Why are you so beautiful?” and Candace’s would respond, “Because you think I am!,” mimicking an exchange they repeat each date night.

“It’s hard to believe that we’ve been together for six years, and the most we’ve been allowed to do is take long naps together,” Allen said.

This summer, Allen took the rare step of contesting his guardianship. With help from a family friend, he sent a letter to the court asking that his guardian be removed and that he be given a hearing to explain. Weeks later, a Dakota County judge denied the request, citing his failure to provide “any medical support.” Allen was never granted a hearing.

“It’s frustrating because this is not a medical issue,” said Tammi Johnson, Candace’s mother. “This is a happiness-of-life issue.”

Allen’s guardian declined to comment for this story.

‘Supported decisions’

Allen is hardly alone in his struggle. Each year, Minnesota courts receive 1,500 to 2,000 petitions for guardianship. Even though a guardian’s role can be restricted based on a person’s specific needs, judges routinely grant them unlimited powers under the law.

Minnesota is one of just three states with a “bill of rights” for wards, but these rights are routinely ignored, disability advocates say. For instance, state law explicitly gives wards the right to associate with people of their choosing, yet overprotective guardians often prevent meetings with people who could challenge their authority, said Lee Ann Erickson, executive director of Arc Southwest, a disability rights group.

“Grown adults are treated like children,” she said.

In many cases, guardians seek unlimited powers even when their wards need help only with limited aspects of their daily lives, such as managing money or taking medications. “There is a lot of overreach,” said Hennepin County Judge Jamie Anderson, a former probate judge. “Often a person is able to live independently but may lose track of bills … and suddenly [a guardian] wants total control.”

The new approach, known as “supported decisionmaking,” would allow more flexibility, advocates say. Instead a single guardian having broad legal authority, a team of social workers and family members would guide a vulnerable adult through important decisions. The goal is to pinpoint areas where a client needs help making decisions, then develop a customized plan. Unlike the court system, they say, the model presumes people are capable decisionmakers.

Guardians would be appointed by courts only as a last resort.

To build this system, Volunteers of America plans to create a center to promote supported decisionmaking for older persons and adults with disabilities. The center would train social workers, attorneys and judges and, through a statewide hot line, is expected to help more than 500 people a year and train hundreds of professionals.

While the concept isn’t new, supported decisionmaking is still largely untested in the United States.

Last year, Texas became the first state to recognize supported decisionmaking agreements as legal alternatives to guardians. The most far-reaching reforms took effect in British Columbia, Canada, where people with disabilities can contract with one or more individuals to help with everyday life decisions.

“Guardianship is a forced bludgeon,” said Amanda Vickstrom, executive director of the Minnesota Elder Justice Center in St. Paul, one of the groups spearheading the new effort. “Before we strip away all of a person’s rights, we have a duty to explore less-restrictive alternatives.”

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Minn. nonprofits seek to overhaul legal guardianship system for vulnerable adults

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

Nevada court panel calls for state guardianship overhaul

LAS VEGAS (AP) — The Nevada Supreme Court has joined calls for lawmakers to overhaul the state's troubled guardianship program that critics say victimizes some of the disabled and elderly people it was set up to help.

Appointing lawyers to represent those whose assets and affairs are being managed tops a list of recommendations announced this week by a commission that spent 15 months studying the program.  Rules currently don't allow legal representation.

Other proposals included creating a "bill of rights" for wards of the program, allowing judges to enlist independent investigators and accountants to spot problems, and capping fees charged by private guardians.

A separate law would be created to cover children in the program, and mediation would be required for all contested guardianship proceedings. Guardians would be prohibited from selling assets, such as a ward's house or car, without court approval.

In a statement Thursday announcing the study's completion, Reno television reporter and commission member Terri Russell cited what she called heartbreaking stories of "abuse, fear and distrust" in the program.

The court created the commission in June 2015 to review issues raised following a series of Las Vegas Review-Journal reports about flaws and lack of oversight of the guardianship system in Las Vegas and Clark County.

Supreme Court Justice James Hardesty, who headed the panel, said the accounts "served as an important reminder for all of us of the sensitivity we all must show to the issues involved in the assessment of persons in need of protection."

The commission statement said it expected the recommendations would provide a template for new laws in the 2017 Legislature.

The panel called for courts to bring a backlog of guardian cases current; for officials to seek federal funding to improve administration of the program; and for criminal investigation and prosecution of guardianship abuse cases.

Nevada Attorney General Adam Laxalt created a task force in May that he said would aim to stop legal guardians from swindling disabled and elderly clients they're hired to protect.

He issued a joint statement Friday with Clark County Sheriff Joseph Lombardo and District Attorney Steve Wolfson in Las Vegas commending the Supreme Court commission's work.

The officials promised to review the recommendations and "continue to investigate and prosecute instances of guardianship and financial exploitation."

The panel also called for the Supreme Court to clarify rules of evidence and procedure in guardianship cases.

The guardian program handles the affairs of thousands of at-risk adults with mental or physical incapacities. Some cases are handled by publicly funded guardians. Others fall to private, third-party guardians whose work and fee structure is supposed to be monitored by a court.

"Some of the cases were just horrible to read," said Barbara Buckley, executive director of the Legal Aid Center of Southern Nevada and a former state lawmaker. The nonprofit began handling guardianship cases earlier this year.

Buckley wasn't a commission member but urged the panel to call for allowing attorneys into the guardianship process. Critics say it currently takes a family member or other outsider to report mismanagement of guardianship money and cases.

"Individuals in this situation are being stripped of their civil liberties, the right to run their life as they see fit, without anyone speaking to them or advocating on their behalf," Buckley told the Review-Journal. "There's no doubt that many of these recommendations, if enacted by the Legislature, will stop some of those abuses."

The commission report doesn't feature victim testimony but chronicles discussions about state laws by a 27-member panel that includes judges, advocates, attorneys and public officials.

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Nevada court panel calls for state guardianship overhaul

Butler County program leading way in guardianship overhaul

By Denise G. Callahan

BUTLER COUNTY — Becky DeLong sat across from Shashi and Aruna Anandpura and asked the question every parent dreads even thinking about: what happens to your child if you die before they are raised?

For the Anandpura family, the unthinkable could become more complicated because their daughter, Parul, has autism.

“Let’s say you two were in a car accident, the judge is the superior guardian and so he would pull her file and read about her from the stuff you have sent in. But that would be it,” DeLong explained to the Anandpura family as they met at Safe Haven Farm in Madison Twp. The farm is home to 16 adults with autism.

Changes at the state level now require all court-appointed guardians — lawyers and other professionals as well as family members and caregivers — be required to take training, whether they’re caring for an elderly person with dementia or a young adult with mental illness or developmental disabilities.

“The goal is to provide uniformity and consistency to Ohio’s guardianship system by providing clear guidance for best practices,” said Christy Tull, director of the Ohio Supreme Court’s Judicial College.

The court released the new minimum requirements in March, after years of study and a 2014 Columbus Dispatch investigation that revealed how the state’s patchwork of local rules had failed some of its most vulnerable residents.

The meeting DeLong is having with the Anandpura family is one of more than 1,000 that will happen across the county as part of a program launched by Butler County Probate Judge Randy Rogers.

In April, Rogers sent DeLong, his chief investigator, and a handful of interns to meet face-to-face with all of Butler County’s 1,100 guardians and their wards. DeLong has already met with about 550 people.

“I want to know all of our people so that when the judge looks at that, if that would ever happen, I want him to know who she is, so it’s not just a case number, I want him to have a sense of who she is …” she told the Anandpuras.

The Butler County program has received praise from the Ohio Supreme Court.

“That’s quite an undertaking for them,” Chief Justice Maureen O’Connor said. “It’s a good program. I commend the judge for doing that.”

Almost half of the county’s guardianships are for people with developmental disabilities, DeLong estimated, and the rest are for the mentally ill and the elderly. She said there are times when establishing a guardianship can be difficult.

“A lot of times they don’t want to have a guardian, so some of our elderly folks think it’s crazy and they are competent and they don’t need a guardian,” she said. “They get angry about that, and who is it and how did that start and why are they doing it. They get upset with all that.”

The county’s guardianship program has been held up as a model for the state largely due to the court’s partnership with LifeSpan, according to Rogers.

“Butler County has been known for many, many years for its guardianship program,” he said. “It is administered by LifeSpan, which covers about 200 of our 1,100 guardianships. It’s a model for the state.”

Lisa Fry, LifeSpan’s guardian manager, said she and her six guardians visit their charges monthly, which is crucial.

The new rules say guardians must have contact with their wards at least quarterly.

“We meet with our clients every month and that does help with the rapport,” Fry said. “We put supports around that client, we try to keep them in a least restrictive environment and support them in the community or a facility where they are living. We advocate for them and seeing them every month is beneficial because over a period of time they get to know us and know we are there to help them.”

There is another effort going on regarding the guardianship world in Butler County at Miami University’s Scripps Gerontology Center.

Rogers has forged a new partnership with the center by offering its students internships. The center is also in the throes of surveying all probate courts in the state.

“We’re hoping to collect information about the number of guardianship cases in Ohio and get kind of a picture of what the guardians look like, get a picture of what the wards look like,” research associate Heather Reece said. “We also want to see what the challenges are and we are going to be looking for innovative programs that we can highlight.”

The chief justice said probably the most important piece of the new rules is the training. She said there could be parents who have been caring for their children all their lives who might wonder why they need to be trained.

If there is money involved — from Social Security or the developmentally disabled person’s job — there has to be accountability, O’Connor said.

“The training is the key to the whole thing, to make the guardians understand how important it is to be responsible and to follow the court rules with regard to their ward,” she said. “Obviously when you are spending money for your ward, sometimes it’s just a nominal amount that comes in but sometimes it could be millions of dollars.”

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Butler County program leading way in guardianship overhaul