Retirees
move to Florida to live out their golden years in the Sunshine State,
but for those who become vulnerable in their old age, there are serious
concerns.
An
Action News Jax investigation uncovered that the Department of Elder
Affairs’ guardianship program has come under serious criticism for a
lack of oversight, leaving the people they are supposed to protect
unguarded.
Guardianship is a legal process where a judge takes away a person’s
rights and appoints someone to manage their finances and other aspects
of their lives. That person is often a family member, but sometimes it’s
a professional, and a scathing state audit found the office created to
make sure guardians are doing their job is failing those it’s supposed
to protect.
That is exactly what Rey Contreras said happened to his family.
“My stepfather’s wishes were denied and revoked,” he told Action News Jax’s Emily Turner.
Contreras’
stepdad was a huge part of his life, but once the court placed him in
the care of a professional guardian, neither Contreras, who lives in
Ponte Vedra, nor his mother was able to be there when his stepdad needed
them most.
A
judge in Polk County threw out the family trust documents, power of
attorney, and everything else, instead appointing a professional
guardian to the case.
“My
mother and I could never speak or see my stepfather again,” he says.
“We were even barred from going to his funeral … and today, it’ll be
close to five years and he’s still in an unmarked grave in Plant City
because the people that took over this estate have failed to even build a
tombstone for him.”
Guardianship
nightmares like Contreras’ have made headlines across the state: in
Miami, elected officials received probate houses for pennies on the
dollar, $150 million disappeared from a special needs trust, and a
Central Florida guardian was in charge of 700 people when one of them
died in her care.
When
it comes to how rampant that kind of malfeasance is, Ken Burke, who
chaired the state’s task force that looked into issues with
guardianship, said, “We have no idea. That’s the problem. “
The Department of Elder Affairs doesn’t do enough to monitor the program or the people in it.
“There’s
not enough rules to keep people honest,” Burke said. “It’s just too
wild, wild west out there in guardianship, and it makes the availability
of malfeasance way too easy.”
An audit
of the Office of Public and Professional Guardians backs that up. It
says OPPG received 174 complaints in two years against the state’s 566
professional guardians, but rarely took action.
It
also said the OPPG hasn’t “developed and implemented an effective
monitoring tool” to make sure guardians complied with state law, making
sure “wards receive appropriate care and treatment, are safe, and their
assets are protected.”
In his presentation to a state senate committee the Deputy Auditor Matt Tracy said things aren’t getting better.
“This is actually a follow-up audit we did,” he said. “And to be honest, in some respects, it was worse the second time around.”
That’s
why Contreras is working with State Representative Clay Yarborough to
tighten up laws regulating the industry and Burke helped created a state
registry of guardians so judges will know how many wards they have and
where. But until sweeping change and tougher oversight are in place,
they say Florida’s most vulnerable are at risk.
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.”
