New study says rights of Texans being violated, SC allowing guardianship system to violate ADA

AUSTIN - A new study by the Spectrum Institute has determined that the Supreme Court of Texas is allowing the adult guardianship system throughout the to operate in violation of the mandates of the ADA and Section 504.

In response, the Spectrum Institute filed a class action complaint with the Supreme Court of Texas on April 9, 2018.

“Our complaint calls the attention of the judiciary to documented deficiencies in the guardianship system -- deficiencies that place respondents at risk of abuse and neglect,” said Tom Coleman, a civil rights attorney who founded the Spectrum Institute, a nonprofit organization promoting equal rights and justice for people with disabilities.

The complaint seeks to protect individuals whose rights are being violated by the system and who are unable to file such a complaint with the Supreme Court due to the nature of their cognitive and communication disabilities, which include adults who have been adjudicated wards and whose cases are active and adults whose cases are pending but have not yet been adjudicated as wards of the state.

“We reviewed the Texas Constitution, state statutes, rules of court, and reports that have been published by government agencies documenting deficiencies in the adult guardianship system in Texas,” said Coleman, who produced Pursuit of Justice, a film that exposes the nationwide abuses of seniors and people with disabilities under guardianship.

“We also searched the websites of the Texas Judicial Branch and the State Bar of Texas.”

Because the Texas Supreme Court is a public entity within the meaning of Title II of the ADA and a recipient of federal funds under Section 504, the complaint requests the Supreme Court to make the necessary modifications in policies and practices to bring the state's adult guardianship system into compliance with the requirements of the ADA and Section 504.

A copy of the complaint has been sent to various state agencies and organizations, including the Civil Rights Division of the United States Department of Justice.

Court statistics reveal that more than 54,000 adults are under an order of guardianship in Texas.  Most of them are men and women with intellectual and developmental disabilities while many are seniors experiencing cognitive decline and others are adults of various ages whose cognitive functioning has been impaired by an injury or medical illness.

“Court appointed attorneys are often under the control of the judges in the probate court who order the payment of their bills so the attorneys are incentivized to please the judge not their disabled clients, which creates a conflict of interest and a scenario for potential abuse and neglect,” Coleman said.

The population of seniors in Texas has increased by more than 19 percent since 2012 to nearly 3.4 million. The number of vulnerable adults with disabilities -- between the ages of 18 and 64 -- has risen more than 6 percent since 2012 to 1.7 million and will likely increase an additional 16 percent by 2025.

Because such increases in both populations are predicted for future decades, it is expected that guardianship caseloads will increase, according to Coleman.

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New study says rights of Texans being violated, SC allowing guardianship system to violate ADA

Palm Beach man Martin Zelman, focus of twisted guardianship case, has died

A Palm Beach man, who was the focus of what amounted to a custody fight between his wife and his adult children, has died.

Martin and Lois Zelman in 2014

The death of Martin Zelman, a successful Long Island real estate investor, was announced by his family in an obituary that appeared on March 8 in the New York Times. He was 87.

His second wife, Lois Zelman, who fought his adult children’s efforts to separate them after 15 years of marriage, was not mentioned in the obituary.

Lois Zelman was ordered out of the couple’s Palm Beach condo in 2o14 by then-Palm Beach County Circuit Judge Diana Lewis. She believed Martin’s children’s claims that Lois was a threat to their father’s well-being. The decision was overturned nearly a year later by the 4th District Court of Appeal. It ruled that Lewis had for fallen for “legal hocus pocus” and had violated Lois’ rights.

But by that time, it was too late for the couple to resume their life together. With Martin Zelman falling deeper into the well of Alzheimer’s disease, he no longer recognized his wife, said attorney Jeff Fisher, who represented Lois in the litigation.

“Due to an abuse of the guardianship process, Lois lost the ability to care for and be with her husband in the last years of his life,” Fisher said Tuesday. “Martin’s passing makes that fact all the more painful for her.  At this point, we simply hope that the rulings from her case prevent the same thing from happening to other couples who are at a similarly vulnerable stage of their lives.”

At stake in the case was roughly $10 million. According to a prenuptial agreement, if Martin divorced Lois she wouldn’t get the money.

In the guardianship case, Lewis ruled that Martin was incompetent and appointed his children as his guardians. But she let him preserve the ability to file lawsuits. While a divorce suit was filed, Judge Charles Burton later threw it out, ruling that Martin lacked the capacity to understand what he was doing.

The dispute was ultimately settled out of court.

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Palm Beach man Martin Zelman, focus of twisted guardianship case, has died

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Appeals court blasts judge’s order to make woman, 80, leave condo

Appeals court blasts judge’s order to make woman, 80, leave condo

WEST PALM BEACH — More than a year after a Palm Beach County judge ordered Lois Zelman out of a Palm Beach condo she shared with her husband, an appeals court on Wednesday blasted the jurist for falling for “legal hocus pocus” and violating the 80-year-old woman’s rights.

Attorney Jeffrey Fisher, who represents Lois Zelman in the ugly court battle launched by her stepchildren, applauded the ruling by the West Palm Beach-based 4th District Court of Appeal. It means Lois Zelman, not her three adult stepchildren, will get the roughly $10 million her husband, Martin Zelman, promised her when they negotiated a prenuptial agreement before getting married 15 years ago, he said.

Lois and Martin Zelman in February 2014.
(Melanie Bell / Palm Beach Daily News)

Theoretically, it also sets the stage for Lois to be reunited with her husband. But, Fisher said, the ruling may come too late for such a storybook ending.

Having slipped further into dementia since then-Palm Beach County Circuit Judge Diana Lewis kicked Lois out of the couple’s condo, Martin Zelman may no longer recognize his wife, Fisher said.

A reunion could be too traumatic for the 87-year-old former Long Island businessman who made a fortune in real estate. According to a psychologist who examined Martin last year, abrupt changes — like when his wife was forced from their home — compound his confusion.

“As for her life with Martin, I don’t know if it can be repaired,” Fisher said. “When he had his mental faculties, I’m sure she was the person he wanted.”

Now, he said, he just doesn’t know.

But, he said, the ruling is a moral and financial victory for Lois and could help others who marry spouses with adult children from prior marriages who don’t like the prenuptial agreements negotiated by their parents.

Claiming Lois was abusing his father, Robert Zelman last year filed a petition in probate court, asking that Martin be declared incompetent and that guardians be appointed to handle his affairs.

Instead of allowing Lois and Robert to be on equal footing, Lewis ruled that Lois was not a party to the proceedings. That meant her lawyer couldn’t fully represent her views about what was best for her husband before Lewis appointed Robert and his sister, who both live in New York, to be Martin’s guardians.

That, Judge Robert Gross wrote for the three-judge appellate panel, gave Robert “a decided advantage” and resulted in “fundamental error” by Lewis, who lost a re-election bid last August.

Instead of focusing on Martin’s mental abilities, Lewis spent an inordinate amount of time hearing about the financial ramifications of allowing the couple to divorce, Gross also wrote.

Under their prenuptial agreement, if Martin died while he and Lois were still married, Lois would get roughly $10 million. If Martin divorced Lois, she could get nothing. However, Martin had to file the divorce. If it was done by a guardian, Lois would still get the money. Further, under a little-known Florida divorce law, there is a three-year waiting period in cases where one of the spouses has been declared mentally unfit.

In what Gross said appeared to be an effort to get around the prenuptial agreement and the obscure Florida law, Lewis declared Martin partially incompetent. While stripping him of the ability to marry, drive, work or manage property, she said Martin could continue to file lawsuits.

That meant he could file for divorce from Lois. And, days after Lewis signed the order, a divorce petition was filed on Martin’s behalf.

“In the effort to navigate the legal implications of prenuptial agreements and, perhaps, (the waiting-period law), the focus of the hearing veered away from the best interest of the ward,” Gross wrote of Lewis’ ruling.

The appeals court decision, coupled with an earlier decision by Palm Beach County Circuit Judge Charles Burton, means the legal battle is all but over for Lois, Fisher said.

After hearing Martin struggle to remember what year it was, the names of his children or who was president, Burton in July ruled the octogenarian wasn’t competent enough to seek a divorce. He sent the case back to probate court for further hearings on Martin’s mental state.

Fisher said he will return to probate court to ask that an independent guardian be appointed to oversee Martin and that all of Lois’ rights to share in her husband’s wealth be restored.

Attorney Peter Sachs, who represents Martin’s children, said he is still reviewing the decision. At its core, itn smply says Lois was denied due process, he said.

“It seems we’re back to square one in the guardianship process,” Sachs said. “It’s really a convoluted situation and it’s unfortunate. Hopefully, we can resolve this without putting people through any more pain and litigation and expense.”

Gross suggested the new judge look at the case with an open mind, uncluttered by Lewis’ decision. “We note that the judgment here was infected by legal hocus pocus, containing findings so unsupported by the record as to be clearly erroneous,” he wrote.

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Appeals court blasts judge’s order to make woman, 80, leave condo