The completely legal, utterly grotesque system for undermining the rights of the elderly
By Gretchen Rachel Hammond
At 92-years-old,Virginia Jean Wahab hadn’t lost any of the
vitality and health she maintained throughout her life. She raised two
daughters as a single mom and made a home for them in the Detroit,
Michigan suburb of Oak Park. Wahab worked on her feet and didn’t retire
from her job at a local family restaurant until she was 88.
Fiercely independent, Wahab was quite happy living at home after
retirement. She had a healthy social life. She did her own grocery
shopping and chores. She so rarely needed to pay a visit to a hospital
that her health insurance was barely touched.
Her eldest daughter Mimi Brun converted to Judaism at the age of 18.
She went on to become a prolific Jewish artist, who sold her work all
over the world. In 2010, she began to establish art schools for children
under 12 in France and then Chicago. Although Brun was estranged from
her younger sister, she and her mother were extremely close. Wahab was
Catholic, but Brun noted that she had the fastidious nature of a Jewish
mother.
Wahab’s legal affairs were in order including a durable power of
attorney she had signed in January, 2016 which named Brun as a patient
advocate (the handler of her medical needs) as well as giving her
daughter charge of her financial affairs should she ever become
incapacitated. Wahab’s home was also registered in Brun’s name in a quit
claim deed signed by Wahab on December 29, 2014.
The two talked on the phone every day. Brun particularly relished
visits with her mother during which she would gift her a piece of art.
Wahab was an eager collector of Brun’s work.
That was two years ago. Everything has changed since then.
In 2016, after a fall at her home, Wahab was diagnosed with a slight
cognitive problem but otherwise deemed healthy. Wahab’s doctor
recommended that Brun find her a short-term rehab facility.
“I looked for a Jewish one,” Brun said. “They were all full. I found Lourdes because it had a five-star reputation.”
On February 23, that year, with the approval of her HMO, Wahab was
admitted for short-term rehabilitation at Lourdes Senior Community in
Waterford, Michigan—a nonprofit elder care facility founded by Dominican
nuns in 1948. According to the organization’s 2016 I-990s, Lourdes
listed end of year assets of $22,096,166.00. Expenses totaled
$14,476,851.00
Brun said she made her mother’s meals and went to each of her physical and occupational therapy sessions.
“The insurance granted her up to 120 days,” Brun remembered. “She was
excelling like a champ but the therapist at Lourdes started telling me
she suspected Mom should not live alone. Mom and I decided that I was
going to go back to France and Chicago, put my businesses on hold, rent
out my homes and move my work and studio to Mom’s. It was what she had
dreamed about—to spend the end of her life living with me.”
Brun left for France, placing her aunt and sister in charge of caring for Wahab while she was in rehab.
“I called Lourdes every day,” Brun said. “Then the insurance cut off.”
Brun asserted that she spoke to Lourdes social worker Sara Van Acker
and pledged that she would enter into a payment plan. Shortly
thereafter, however, she received an email from a Lourdes administrator
which stated “Your payment plan with Sara Van Acker was not approved by
me. I cannot receive partial payment nor be patient for your payment
plan time frame.”
On June 6, Lourdes filed a petition for guardianship on the grounds
of a $31,416.65 past-due bill. Brun said that the petition notice was
sent to an address that was not hers. The petition shows that the
address used to serve Brun belongs to an apartment complex in Harper
Woods Michigan—one hour’s drive from Lourdes and 30 minutes from Oak
Park. On the address, no apartment number is listed. It is also not the
address listed on the Power of Attorney paperwork Brun says she provided
to Lourdes.
Brun rushed back to Michigan. On the morning of June 29, 2016, she
attended a hearing presided over by Oakland County Probate Judge Linda
Hallmark, one of four judges serving there. Hallmark vacated
Wahab’s power of attorney and appointed a local attorney Jon
Munger as Wahab’s guardian. According to Brun, neither she nor her
mother ever requested Munger’s services.
Also appointed by the court was a man named Matthew Jason Brown,
another local lawyer. Brown was named as Wahab’s guardian
ad litem (GAL)—a person entrusted with investigating what course of
action is in the best interest of a person unable to care for
themselves. The June 29 hearing was also attended by two representatives
from Lourdes: Van Acker and Lisa Hibbert from the organization’s
accounts receivable department.
According to court transcripts from that morning, Van Acker stated
that she had filed the petition for guardianship because “there’s a
concern about the nursing home being paid.”
Brown wanted to know if an application for Medicare benefits for Wahab had been made.
“Not to my knowledge,” Van Acker replied.
“Are you familiar with [Wahab’s] medical condition?” Brown wondered, to which Van Acker answered “slightly.”
When Brown asked Brun if she had any objection to the petition, Brun
replied “I am contesting this hearing because I was not served. I’ve had
no time to get a lawyer.”
“Well, you’re here Ma’am,” Hallmark replied, “and it’s a guardianship
so there is some urgency about it, so we’re going to proceed.”
When Brun protested that she had been appointed as Wahab’s guardian through a power of attorney, Hallmark quickly rebuked her.
“That’s different than an appointment by the court,” Hallmark said. “Has any court appointed you guardian?”
“No, but I haven’t applied for it yet,” Brun replied. “I’d like to petition for it, but I need time.”
Hallmark did not respond to this request.
In delivering his report to the court, Brown went on to state that he
had visited Wahab at Lourdes only two days earlier. During that visit,
he said, he “explained to Wahab her rights and gave her a copy of [the
petition].”
“She didn’t have any objection to the appointment of a public
administrator at that time,” he added. “But I would note that she was
not oriented to date, time, and place.”
Brown also stated that he “went over [Wahab’s] medical condition with
Ms. Van Acker and she went over with me sheets that said she was
suffering from dementia, unspecified lack of coordination,
osteoarthritis, two…type two diabetes, muscle weakness and
hypertension.”
Transcripts from that day indicate that Hallmark never asked for medical reports to prove Brown’s assertions.
Brun told Hallmark that she had witnesses who would speak on her and
Wahab’s behalf. Those witnesses, however, were never called.
“My Mom needs love,” Brun went on to tell Hallmark. “No one loves my
Mom more than me. When I asked my mom ‘what’s your greatest desire?’ she
said ‘I want to go home. I want to go home with you.’”
“I want to take her home,” Brun begged Hallmark.
“I’m going to grant the petition,” Hallmark said. “I would like to
appoint Mr. Munger [as guardian]. If he thinks that an independent
medical or some other action is required that’s fine. I’m also going to
appoint [Munger] as special fiduciary to make sure we have the Medicaid
application on track. I’ll revoke the power of attorney today. If it’s
appropriate that [Brun] should serve, if you want to get counsel and
bring the matter in, we’ll consider that.”
“She hasn’t lost any of her rights…” Hallmark added, speaking of Wahab. “She has a guardian and it’s Mr. Munger…”
Brun made one last desperate plea. “Is there a reason why?”
“Yes,” Hallmark replied. “Because she’s in need of a guardian and I’m appointing Mr. Munger. That’s why.”
Hallmark never mentioned the grounds by which she was revoking the power of attorney.
The court adjourned.
Brun’s fight to have her mom released from Lourdes would eventually
result in Hallmark issuing an injunction restraining her from entering
Lourdes premises, denial of her visitation rights (even when chaperoned
by a nun and a locally renowned, retired judge) and a bench warrant from
Hallmark’s court for Brun’s arrest.
Two days after Munger had been assigned, Brun received an email from
his office which stated “It will be necessary to close [Wahab’s] bank
accounts and locate all assets in order to apply for Medicaid.
I understand that there is at least one account at ****** Bank with both
of your names on it. It would be more efficient if you cooperate with
the closing of the account(s). I will need proof of closure for the
Medicaid application. I will then open a guardianship account at
******** for your mother, pay her bills, and apply for Medicaid.”
Even though Wahab was originally admitted for a short-term rehab at
Lourdes, on July 1, 2016, according to his own accounting, Munger
completed a long-term medical assistance application that entitled
Lourdes to three months of retroactive disbursement, faxing the
application to Michigan State’s Department of Human Services. Five days
later, Munger completed and mailed another admissions packet to Lourdes
for Wahab.
A July 17, 2016 affidavit, signed by Wahab and filed in court, read “I want to go home with my daughter Mimi.”
On August 15, 2016 Brun’s then-attorney sent a letter to Lourdes CEO
Sr. Maureen Comer stating “Ms. Brun has not and has never been opposed
to negotiating the payment of the outstanding bill. Ms. Brun has made
arrangements to take Ms. Wahab home and Ms. Wahab has even signed an
affidavit stating she wants to return home.”
Two days later, Brun, her attorney and Lourdes received an email from
Munger which stated that he was clarifying “for both Lourdes and for
yourself, that I am not authorizing either Mimi Brun or yourself to
discuss, negotiate or otherwise become involved in any potential
discharge plan nor payment.”
Munger also went on to say “there have already been repeated
complaints about your client’s behavior while at Lourdes facility. I
have not yet taken full steps to curtail your client’s visitation, but
we may need to revisit that issue.”
In a subsequent series of emails Brun’s then-attorney called Munger’s
actions “highly inappropriate. You are needlessly dragging on this
litigation so you can keep billing and billing.”
Munger replied “You and your client will cease any communication with
Lourdes administration or management. Your failure to abide by this
requirement will simply force me to place the matter before Judge
Hallmark, where I will ask that both you and your client be sanctioned
for this grossly unprofessional, abusive and threatening behavior. I
simply will not allow either of you to interfere with Virginia’s care.”
On August 18, 2016, Munger billed Wahab $245 for his drafting “of a petition to limit visitation.”
An email that day from Munger to Brun’s attorney stated that it was
“due to your attempts to pay Lourdes.” It makes no mention of any
complaints about Brun’s behavior.
Because he was Wahab’s guardian, Munger was legally permitted to bill
his ward for any work on her behalf. A 2017 statement of other fees and
services billed to Wahab by Munger and Associates shows that in little
over a three-month span, Munger billed Wahab a total of $6,097.00 in
fees and services.
Brun filed an emergency petition to have Wahab released from Lourdes.
In an October 5 hearing in Hallmark’s courtroom, Munger was represented
by attorney Joseph Ehrlich.
Munger billed Wahab $450 to “attend hearing on court motions and “[a] conference with judicial staff attorney.”
Following the hearing, Ehrlich secured an order from Hallmark
compelling Brun to pay $25,000 to Lourdes and gave her 25 days to come
up with the cash.
Brun told me that, because it did not include the provision for her mother to be released, she refused to pay it.
A subsequent motion Brun filed to vacate the order stated that “upon
review of the transcript of this hearing, at no point did Brun ever
agree to pay $25,000 to Lourdes. It does not comport with the settlement
placed on record.”
Lourdes retained attorney Mary Lyneis to represent them.
A November 2016 letter from Lyneis to Brun accused her of violating “Court Orders entered into the Probate Court.”
While it did not mention which of those orders Brun was supposed to
have violated, it went on to accuse her of “Threatening conduct toward
the staff at Lourdes. In addition, you upset your mother with unfounded
allegations the staff at Lourdes. As a result, you are hereby notified
that you are no longer permitted on the premises. Should you attempt to
enter the premises, appropriate law enforcement will be contacted.”
The letter offered no evidence of any court order sanctioning a decision to bar Brun from the premises.
In a February 2, 2017 email, Lyneis told Brun “We want to be paid.
You cannot expect to show up to see your mother when you have not paid
for the privilege and you have disappeared since November.”
A subsequent email from Munger to Brun stated “If you want to visit
your mother and or even remain in contact with her, you would be better
served by complying with the existing court order than by continuing to
harass everyone trying to see your mother. In particular, pay the
$25,000.”
Concerned about being able to pay her legal fees, Brun sold her and
her mother’s home to Michigan banker Bradley Silverstein on the proviso
that he draft a lease for her and Wahab to live there. A lease with that
condition was drafted on February 28, 2017.
Two days later on March 1, 2017, Ehrlich, Lyneis, and Munger appeared
before Hallmark and asked for a series of ex parte orders against Brun.
Ex parte orders are issued without the presence of or even
notification of the parties it affects. Since due process is
Constitutionally guaranteed, these orders are supposed to be temporary
while allowing ample room for them to be contested.
Brun was not present at the hearing when the ex parte orders were
issued. At the time, with the support of her doctor and with his medical
order in the court file, she had requested a two-month medical leave
from the court.
Hallmark also issued a permanent injunction against Brun restraining
her from entering Lourdes premises, and a bench warrant for arrest
alleging that her refusal to pay the $25,000.00 was in contempt of
court.Regardless, Munger and Ehrlich requested that the house be
transferred back to Wahab’s name “and then [to] permit Jon Munger to
sell the house in order to pay for her care, so that [Wahab] would then
qualify for needs-based benefits.” The court issued this order on June
28, 2016.
Brun told me that, in the months that followed, Munger attempted to
force his way into the house. On August 8, 2017, she filed a police
report, complaining that Munger had attempted to enter the house on
three separate occasions.
When Brun replied that she had never received such an order, Munger
wrote “A hearing was held on June 21 in front of Judge Linda Hallmark,
and you received notice of that. I have every legal right to enter your
mother’s home, and I have done so.”A June 30 email from Munger to Brun
read “As you are aware, Judge Hallmark entered an order in the eviction
case requiring you to vacate your mother’s home by Wednesday, June 28th
2017. I went to the home with several others on the following day, June
29th, and it was apparent that no one was residing in the home.
Accordingly, we had the locks changed and the home secured. Upon our
entry into the home, it was apparent that you had left a great deal of
valuable personal property behind, including artwork. We deem this to
be abandoned property under the law. For the time being, we are holding
that personal property and artwork as security for repayment of the
$25,000 you were ordered to pay on October 5.”
Brun has filed criminal police reports for larceny home invasion and
theft against Munger with the Oak Park Police. The police took no
subsequent action.
On August 30, Munger billed Wahab $245 for “a hearing to set aside
deed” and $119 for calls to the real estate agent and the locksmith.
Brun said she was not present at any such hearing.
Brun’s attorney Phillip Strehle would later tell Hallmark “In October
’16 [Munger] filed a forwarding address card with the post office which
has Mimi’s name on top and Munger’s address on it. So, he already knew,
as of October ’16, that whatever mail he sent to the house, she would
never get, because he sent it to himself. Mr. Ehrlich told me out in the
hall that the order of August 30 was entered because it was
uncontested. There’s a reason why it was uncontested; because Ms. Brun
was not properly served.”
Brun finally got a break in October 2017 when attorney Lisa Orlando became Wahab’s new Guardian ad Litem.
In two reports Orlando submitted to Hallmark in 2018, she wrote “I
visited [Wahab] at Lourdes Senior Community first on November 16, 2017
and then again more recently, on February 28, 2018, at which time I
again served her a copy of the petition, notice of hearing and the order
appointing a Guardian ad Litem. I don’t believe that Virginia was able
to understand the information being presented, however she did clearly
say that she did not want to go to court. I then asked her if she wanted
Mimi to be her guardian and she said ‘of course!’”
“In the opinion of this GAL, it is Virginia Wahab a 94-year-old
woman, who is paying the price of these ongoing legal disputes and
suffering harm by not being able to see her daughter for more than 17
months,” Orlando added. “To isolate and prohibit an aging Mother from
seeing her daughter is heartbreaking to this GAL. Mimi Brun has priority
under the statute and is Virginia’s choice to be her Guardian.”
An affidavit signed by Wahab’s sister Sr. Helen Essa reads “Mimi is a
devoted daughter and attended to every detail of her mother’s care not
ever putting her own needs first. I know how desperate my sister is to
go home with Mimi and have Mimi care for her. I pray, as we all do, that
my sister will not die in a nursing home.”
In concluding her report, Orlando cited Michigan statutes.
“Under MCL 700.5313(3)(b), [Brun] has priority over a professional
guardian,” she wrote. “’If suitable and willing to serve as guardian,
the court shall appoint, an adult child of the legally incapacitated
individual.’” Under MCL 700.5313(2)(b), [Brun] is Virginia’s choice to
serve as her guardian. I discovered no clear and convincing evidence why
the Petition should not be granted.”
Yet, Munger still remains as the sole guardian for Wahab who is still
at Lourdes. Despite her best hopes, Brun has yet to see her and bring
her home
The question remains as to why the Oakland County Probate Court
effectively became a debt collector for a nursing facility and why the
now 95-year-old Wahab is still held there despite her own Guardian ad
Litem opinion that Brun replace Munger as guardian and family members’
pleas to Hallmark that Wahab be allowed to go home with her daughter.
On May 25, 2018 Hallmark vacated the order to pay $25,000.00. Hallmark also found Brun not guilty of contempt of court.
Brun does not believe the petitions she filed in October to have Munger removed as guardian will even be heard until July.
“I have been offering to pay Lourdes the money to let my mother go
but Munger refuses to accept my working with the facility,” she said. “I
promised Mom that her last chapter would be her best. But I think my
mom will die before Munger ever lets her go.”
Strehle, who has been Brun’s attorney since October, 2017, told me that he felt the entire case against Brun was “bizarre.”
“The transcript of June 29, 2016 does not comply with the statute or
the court rules,” he said. “There’s not a single bit of evidence to
support even the creation of a guardianship; not one iota of evidence.”
He added that for a nursing home to present a petition for
guardianship based on a past-due bill is something “I’ve never seen in
all my years of doing probate. Ever.”
In the [June 29, 2016] transcript, the guardian ad litem [Brown] is
the one that’s asking the questions,” he added. “Not Munger. Not an
attorney for Lourdes. That’s even more bizarre. Usually, the person
asking the questions is the petitioner not the guardian at litem. The
court grated it because of an overdue bill. That’s not a basis for
getting even a limited guardianship.”
Strehle also addressed the March 1, 2017 subsequent bench warrant and injunction issued against Brun.
“In my view, the bench warrant against Mimi was entered improperly
because of the $25,000 provision which the court recently vacated,” he
said in an interview with me. “In her petition Lyneis was seeking a
restraining order against Mimi. A restraining order lapses on its own in
14 days. That’s not what she got. The court granted her a broad
injunction. Lyneis had a huge burden of proof to get the restraining
order. After that, she was supposed to notify us of a hearing within 14
days. She didn’t do that. It was based on no evidence whatsoever.”
“After all this time, I still have not seen any evidence to support
[Munger’s] guardianship,” he concluded. “I have emails from Lourdes
saying ‘we don’t want [Wahab] here.’”
“Twice on the record now in open court Ehrlich has said he wants to
get the house to pay fees,” [referring to both his and Munger’s legal
fees]. “I don’t see how that’s a basis for keeping this poor woman in
this location, isolated, with no visitation. I’ve never seen it before
in 31 years of doing this.”
I reached out to both Lourdes CEO Sr. Maureen Comer and Lyneis. In a
series of email responses, Lyneis requested my “credentials” in the form
of a “CV”. When I refused to provide her with a resume, Lyneis declined
to confirm or deny any of the emails or statements on court transcripts
made by her or Lourdes staff members. She also refused to answer a long
list of questions pertaining to everything from Wahab’s initial medical
diagnosis to why a petition for guardianship was filed over a past-due
bill.
I also reached out to Hallmark via email and telephone and was told
by a staff member in her office that, since she had not responded to my
email, it was an indication that she had no comment.
An Oakland County Probate Court Administrator later replied, “In the
interest of fairness to those involved, it is this court’s policy not to
comment on pending litigation.”
Wahab’s first GAL, Brown, however, did respond. “As I stated in my
report, Ms. Wahab consented to the guardianship,” he wrote. “I also
felt, after interviewing Ms. Wahab, that she needed a guardian to be
appointed. The information regarding the medicals was given to me by the
nursing home regarding Ms. Wahab’s medical condition and are consistent
with my report and testimony.”
This is not a story drawn from a dystopian fantasy. It is happening
today all over America, where Probate Courts employ an exponentially
growing network of professional, for-profit guardians.
I talked at length to six other families—in Michigan, Arizona, New
York and Illinois respectively about their experiences with predatory
guardians; some are court appointed professionals, others are family
members granted leave by Probate Courts to cut their siblings out of a
ward’s life.
The tapestry of each story was as complicated as it was
heartbreaking. Each narrator pulled on the memory of each thread of that
tapestry and found tears, despair, rage and frustration behind it.
In October, 2017 WXYZ television in Lansing, Michigan
launched an investigation into
the Oakland County Probate Court and its court appointed guardians
Barbara Andruccioli and Thomas Brennan Frasier whom a family
member accused of neglecting and financially exploiting her parents
Lorrie and Sandy Kapp.
Andruccioli and Brennan have yet to respond to these allegations.
The Oakland County Probate Court judge in the case, Daniel A.
O’Brien, issued an ex parte order denying WXYZ the ability to show
the Kapp’s faces.
Andruccioli was subsequently fired as a public administrator and has become part of a still
ongoing criminal investigation by
both the Oakland County Prosecutor’s Office and the Sherriff’s office
yet she still remains conservator and guardian for cases at the Oakland
County Probate Court.
According to
court documents
from the Michigan Court of Appeals, in 2011, Hallmark appointed Munger
as guardian to Angela M. Robinson who had been declared legally
incapacitated. In 2012, her parents Remo and Marie Marzella petitioned
Hallmark to remove Munger as guardian and transfer her to their care.
They claimed Munger “had not investigated Angela’s best interests or
made proper decisions regarding her future care.”
Following an evidentiary hearing, Hallmark denied the petition.
“I am not going to remove Mr. Munger at this point,” she said. “I don’t find that Mr. Munger did anything wrong.”
In a subsequent 2014 lawsuit, the Marzellas accused Munger of
committing legal malpractice. Among the complaint’s allegations, Munger
“failed to investigate and ascertain Angela’s best interests with
respect to her living arrangements, advocated for Angela to live in an
institution instead of with her family” and “failed to foster Angela’s
family relationships and family involvement in her care and life.”
“Angela and her special needs trust were subsequently shorted and she
and her family suffered economic and non-economic damages,” the
complaint added.
Munger claimed that, because Hallmark had already ruled he “did
nothing wrong” during the petition for his removal, the Marzellas were
barred by “collateral estoppel” (preventing an issue from being
relitigated.)
In 2016, the Michigan Court of Appeals found that “no discovery was
even conducted before [the evidentiary] hearing. Simply stated, the
probate court’s decision not to remove Munger as Angela’s guardian was
not tantamount to a finding that Munger did not commit legal malpractice
or breach fiduciary duties owed to Angela.”
It concluded that the Marzellas “never had a full and fair opportunity to litigate the issues underlying their claims.”
The same court dealt with the 2007
case
of Brenda Cupp—who suffered head injuries after a car accident.
According to court documents, her sister Dana Browning had been
appointed as guardian. After Cupp’s attorney contested the case, Munger
was appointed co-guardian and co-conservator of Cupp’s special needs
trust.
Five weeks later, Munger petitioned the probate court for Browning’s
removal as co-conservator “on the basis that she acted erratically
during Cupp’s independent medical examination [IME] and Munger heard
second-hand that Browning intended that the money in Cupp’s estate would
not be used to pay legal fees.”
The petition was granted.
In 2010, the Michigan Court of Appeals ruled “the IME incident was
not sufficient good cause to remove Browning from her co-conservatorship
position a mere five weeks after her appointment” and that “the probate
court abused its discretion in finding that good cause existed to
remove Browning as co-conservator.”
In 2002, Joseph Ehrlich, was sanctioned over $113,000 by a Michigan
Court for “pursuing frivolous litigation” in a case disputing the estate
of John J. Fannon, Jr.
Ehrlich appealed in 2005 and, in denying that appeal, the court
stated that “The record reflects that, when they joined the case,
Ehrlich and his firm continued to file pleadings and documents that
lacked factual and legal support. The record clearly reflects that
Ehrlich failed to make reasonable inquiry into the factual and legal
merit of the claims he asserted on behalf of plaintiff when he knew or
should have known that they lacked such support.”
On his website, Munger claims to be an Oakland County Public
Administrator although an email from State Public Administrator Michael
Moody reads “Mr. Munger’s appointment as an Oakland
County Public Administrator was terminated on October 6, 2017.” Munger
is also not among the Oakland County Probate Court’s list of Public
Administrators.
Between June 29, 2016 and September 19, 2017 Munger’s statement of
fees and services billed for his guardianship of Wahab totaled $12,282.
I reached out to Munger by email and telephone and was told by his office secretary that he had no comment.
I reached out to Ehrlich via email and telephone. His office
secretary responded that Ehrlich had never received the email. When I
asked to speak to him in person, she concluded the conversation.
There are also a number of cases involving Holocaust survivors.
Al Katz barely escaped numerous Nazi camps, including Dachau, only to
become the ward of guardians in Florida at the age of 89, as court
documents show.
“My father came to the United States in 1946,” his daughter, Dr. Beverly Newman, told me.
“His mommy, daddy, little brother, older sister, her husband and
their one-month-old baby had all been murdered. He was a walking
skeleton with no money, no job and didn’t know the English language. He
felt very alone.”
Nevertheless, Newman remembered that her father never lost a
wonderful sense of humor while he lived by the motto “Never forget,
never forgive and never be bitter.”
It was at a Purim ball in Indianapolis that Katz met Sophia Passo.
“He was stricken with love,” Newman laughed. “He asked her over and over again to marry him. She just would not do it.”
Katz started to work in bakery and then a packing house where he was
injured twice. It was when Sophia was visiting him in the
hospital that she relented.
He and Sophia were married in 1947. Katz began a successful insurance
career. The couple had two children, Newman and her younger brother,
and were inseparable for over thirty years until Sophia passed away in
1977.
The devastation Katz felt remained with him the rest of his life.
After retirement, Newman said that her father became a snowbird, spending winters in Florida.
In 2009, concerned for his health, one of Katz’s doctors contacted a public guardian.
That individual was M. Ashley Butler who worked in the Office of
Public Guardian for three Florida counties since 2006 together with a
partner, Jo Eisch, under the business name Aging Safely, Inc.
Newman maintained that the first she heard about it was when she
was told by Katz’s Indianapolis attorney that “there are people poking
around about putting your father into guardianship. That was August of
2009.
Newman added that hospital records she obtained from the time include
numerous orders made by the guardians not to inform her of any medical
decisions or procedures.
“On Rosh Hashanah, September 18, [Butler and Eisch] filed papers to
put my dad into Emergency Temporary Guardianship,” Newman said, adding
that neither guardian had ever met her father. “They didn’t even know
him. I have the transcripts of the hearing. The judge knew that I had
not been contacted and went ahead and approved it anyway. Things then
moved very quickly.”
A 2011 Florida Supreme Court
complaint filed by Newman and her husband noted that Bradenton attorney Ernie Lisch was appointed by the court to act as Al’s counsel.
“Despite many irregularities at the hearing, Lisch took no steps to
advocate for or protect the rights of his client,” the complaint
reads. Lisch contested these allegations, and the Florida Appellate
Court ruled in his favor.
Newman discovered that Katz had been placed in Casa Mora Nursing Home in Bradenton.
In 2015, the
Bradenton Herald reported that the facility was one of three on a Florida watch list “due to prior problems or deficiencies.”
The
Herald noted, among those deficiencies, “A 58-year-old
Casa Mora resident and the resident’s representative had requested in a
resuscitate order that the resident receive CPR if she was ever found
unresponsive. This procedure was not followed when she fell
unresponsive. She was pronounced deceased after not receiving CPR.”
According to the article, these deficiencies have since been corrected.
Casa Mora is no longer on the state’s watch list.
Newman and her husband Larry immediately drove from their home in Indianapolis down to Florida.
She asserted that, shortly before they arrived on September
20, Butler utilized the Florida Baker Act—which allows for involuntary
commitment—in order to place Katz in Manatee Memorial Hospital.
“They said that he had taken his walker and bumped it into someone at
the nursing home,” Newman said. “But my Dad was barely able to use a
walker. He was in very poor physical condition and not a danger to
anyone else. They never told him anything. Not what was going
on, nothing. We arrived while daddy was in the Manatee Hospital
emergency room. It was horrifying. My dad just wanted to go home. A
psychiatrist chosen by Butler and Eisch made a No-Contact order. The
hospital kept my daddy in an underground unit, like a dungeon. There
were armed guards and these huge electronic doors. A nurse told us he
was pacing the halls like a caged animal. It was traumatizing.”
She added that Katz was there for three weeks.
Newman remembered Katz calling Butler and Eisch “Nazis” to their faces.
Meanwhile, like the family members in Michigan, Newman launched
a fight to have Butler’s guardianship removed and her father returned to
her care, as court documents show.
Opposed by Lisch, the case was heard on October 26, 28, and 30, 2009 in Florida’s Twelfth Judicial Circuit Court.
“In the intervening three weeks, Katz was repeatedly hospitalized and near death,” the 2011 complaint noted.
“Guardianship in Florida is a very lucrative industry,” Newman said.
“People who go into guardianship lose every cent they ever had. Their
families are wrecked.”
She stated that the guardians even took control over her father’s
Holocaust Survivor Compensation checks as part of their oversight of her
father’s assets.
I attempted to track down Butler. The telephone numbers for Aging
Safely have been disconnected. Email addresses for Butler have been shut
down. The last I-990 tax return filed by the organization in 2014
listed bet assets of $1,767.00.
As of publication, Eisch had not returned phone calls or email requests for comment.
In Newman’s case, Florida Circuit Court Judge Paul E. Logan (now
retired) restricted visits to her father to only three hours-per-day.
“He said I could never tell my daddy that I was fighting in court to get
him home or that he was under guardianship,” Newman asserted. “If I
did, I would lose visitation completely. Daddy was crying and saying,
‘Take me home!’ ‘Why do you have to leave me?’ ‘Why can’t I go home with
you?’ and I was prohibited by court order from telling him the truth.”
On November 23, 2009 Newman won her petition for guardianship of her father but not his property.
“I didn’t care,” she said. “I just wanted to get daddy out of the
nursing home and hospitals and give him a real life. It was such a
relief that I couldn’t stop crying.”
However, by then, Katz was extremely ill and in the hospital.
“I spent Thanksgiving that year with my daddy and in the hospital,”
Newman said. “In some ways, that as the best and worst Thanksgiving of
my life. At least I could shower him with love and attention.”
By the time Newman and her husband got Katz home, it was Hannukah.
“He was finally smiling,” she said. “By New Year’s Eve, he was able
to eat and talk. We took him to a restaurant that he liked. We got him
all dressed up. He wanted us to take pictures of us celebrating New
Year’s Eve. It was a happy time.”
Their time was all too short. Katz passed away on July 11, 2010.
“He had no catheters or feeding tubes in him,” Newman said. “He was just as normal as you could be at 90-years-old.”
In January that same year, Lisch filed a petition for $24,354.15 in attorney’s fees and expenses.
“For doing essentially nothing,” Newman asserted.
She opposed it and took the case all the way to Florida’s and then
the United States Supreme Court, the latter of which declined to hear
the case. Ultimately, Lisch prevailed in his original petition.
Even nine-years after her father’s death, Newman said she is still
subjected to verbal abuse and numerous accusations from those with a
vested interest in a system against which she has actively taken a
stand. Meanwhile, she continues to fight in Indianapolis to settle her
father’s estate and to remove liens on Katz’s properties.
In 2006, in the case of Marshall v. Marshall, the USSC determined
that issues dealing with Probate Courts are “reserved to state probate
courts” and “also precludes federal courts from disposing of property
that is in the custody of a state probate court.”
In memory of her father, the Newmans founded the
Al Katz Center for Holocaust Survivors and Jewish Learning in Bradenton.
“We serve many hundreds of persons every year through advocacy and
programming open to the entire community,” the Center’s website
reads, “and we are life-sustaining and life-saving to elders in peril
and trauma.”
On the opposite side of the country, the probate and guardianship
system created another activist and family advocate out of an
individual who found herself opposing those who have successfully
exploited it.
The Bradenton police department wouldn’t help Newman. Brun said that
the police in her case were similarly unable to act, unless it was to
prevent her from entering Lourdes to see her mother.
[T}here is
an organization that advocates for those working in the profession.
The National Guardianship Association (NGA) was formed during a
national conference in Chicago in 1988—one year after the AP’s article
was released.
In the 30 years that followed, the NGA’s membership increased to over 1,000.
Sally Hurme is an attorney and member of the NGAs Board of Directors.
She said that, while she is not and has never been a guardian, she has
been involved in developing guardianship policy for decades.
“NGA does not have any mechanism by which to do anything other than
to keep developing standards of practice and educating individuals who
want to provide excellence in guardianship,” she said.
According to the NGA’s website, those standards of practice have
increased from the original seven to their present number of 25. In
1997, the NGA voted to create an entirely separate entity,
the Center for Guardianship Certification (CGC) on whose board Hurme has also served.
It states its vision as one in which “every professional guardian will obtain and maintain CGC certification.”
“The CGC is the only national certifying body for
guardians,” Hurme said. “Any guardian; professional, family, public or
volunteer is welcome and encouraged to become certified.”
Among the five pillars Hurme listed as necessary to obtain certification is an examination.
To become a Nationally Certified Guardian (NCG), the $375 exam is
scored on core competencies including professional practices, knowledge
of person under guardianship, application of surrogate decision making,
medical decision making and personal and financial management.
The competencies listed in the $525 examination to be certified as a
National Master Guardian (NMG) are basically the same with the addition
of “professional practices of a master guardian” and knowledge of the
guardianship planning process.
Hurme stated that, at present, there are approximately 1,500 certified guardians.
“There is an agreement to a disciplinary process which receives
grievances, determines whether there is probable cause to go forward
with a professional review board,” she stated.
Ironically, according to Hurme, the professional review board is one
in which “due process” is afforded to a certified guardian while a
determination is made as to whether or not they have violated standards
of practice.
“The professional review board has a range of sanctions from a letter
of concern, to suspension, dismissal to decertification,” Hurme said.
“The one problem with the CGC process is that we can only hear
grievances if the individual is certified. If we receive a complaint
about a guardian that is not certified, our hands are tied. There’s
nothing the CHC can do.”
The CGC’s list of disciplined guardians posted on its website numbers
12 and includes April Parks alongside guardians from Oregon, Texas,
Utah, Nevada, New Hampshire, New Mexico, Ohio, Oregon and Michigan.
The CGC lists 12 States that ask for mandatory CGC certification for
its guardians or have their own State-specific licensing requirements.
In the case of California, it’s a combination of the two. Michigan is
not among them. Since 2016, Florida has employed The Office of Public
and Professional Guardians (OPPG) to regulate “more than 550
professional guardians statewide, which includes investigating and, if
deemed appropriate, the discipline of guardians in violation of the law.
“NGA and many of the other organizations such as those that are
members of the National Guardianship Network are continually striving to
make guardianship work better for those individuals who will need it,”
Hurme said.
As an example of those efforts, Hurme noted the Uniform Guardianship,
Conservatorship, and Other Protective Arrangements Act (UGCOPAA). The
over 150-page document was drafted, over the course of two years, by a
committee consisting of multiple stakeholders including representatives
from the American Bar Association (ABA) and was approved and recommended
for enactment in all US States at a July, 2017 meeting of the National
Conference of Commissioners of Uniform State Laws.
Hurme stated that members of the NGA, herself included acted as
technical advisors to the commission “in making sure that the new model;
law addresses many of the issues that are floating around in
guardianship; perhaps that there are too many guardianships and that
there needs to be more emphasis in limiting the authority of the
guardian, better recognition of the due process rights of the individual
and a more person-centered focus of the individual in the hearing
process that limits the authority of the guardian.”
American Association of Retired Persons (AARP) Senior Legislative Representative Diana Noel was part of the drafting committee.
“I felt as if it was a very thorough process that was very public,”
she said. “There were a lot of people in the room. One of the things
that is very important; that the drafting committee really wanted to
come across, which is why the name is so long, is to recognize that
guardianship was a system that was really not including the individual
that it was about. One of the things the act did was to update
terminology. Instead of using the term ‘ward’, it’s ‘individual’ so that
the focus is on the individual and so that they have a say in their
care.”
A Uniform Law Commission document encouraging States to adopt the
UGCPOAA, declares that, under the act, “Each guardianship and
conservatorship will have an individualized plan that considers the
person’s preferences and values. Courts will monitor guardians and
conservators to ensure compliance and approve updates to the plan in
response to changing circumstances.”
It adds that “Without a court order, a guardian under UGCOPAA may not
restrict a person under guardianship from receiving visits or
communications from family and friends for more than seven days, or from
anyone for more than sixty day” and that the act “prohibits courts from
issuing guardianship or conservatorship orders when a less-restrictive
alternative is available.”
These provisions and others in the UGCOPAA could have protected Brun and her mother had the act been adopted in Michigan.
It hasn’t.
As of the time of publication only Maine has adopted it. The New
Mexico State Legislature introduced it this year and opened it up for
public comment.
Hurme pledged that the NGA would direct its advocacy efforts to
assisting States in understanding the importance of what she called “a
forward-thinking law.”
“This isn’t a partisan issue,” [Noel] asserted. “This isn’t
a caregiving and an aging issue. I don’t want you to think that, because
States haven’t adopted it, that means that they are not looking at it.
They may be looking at it. These things take time. They look at their
current laws, they see what’s working and what’s not working and how
things like the Uniform Act could help fix what’s not working or enhance
what is.”
“As long as I’ve been here, I’ve been working on this issue,” she
said. “States have been working on and updating their statutes because
they are pretty outdated. They’ve been around for a very long time. It’s
a very complicated system. What we’re doing and what states are
doing is making sure that policy and practice meet and complement each
other.”
The Elder Abuse
and Prevention Act passed by the senate and signed into law by
President Trump in 2017, charged the Department of Justice
with establishing “best practices for data collection on elder abuse”
and “in coordination with the Elder Justice Coordinating Council, [to]
provide information, training, and technical assistance to help states
and local governments investigate, prosecute, prevent, and mitigate the
impact of elder abuse, exploitation, and neglect.”
“We have a real long history in combatting abuse and exploitation and
ensuring that State laws address and prevent abuse by a guardian or a
neighbor or whoever,” Noel said. “We’ve really been engaged in working
not just with State legislators but State courts.”
Wondering about the laws in a State like Michigan and how far they
extended in the protection of wards and their families from predatory
guardians and the probate courts which employ them, I reached out to
probate attorneys across the State.
Nathan R. Piwowarski is a highly respected lawyer and share-holder at the firm of
McCurdy Wotila & Porteous, PC in Cadillac. He has been practicing trust, estate and elder law for ten years.
Ronald Dixon has practiced law since 1975 and served as a hearing
panelist for Michigan’s Attorney Discipline Committee for approximately
25 years.
Neither Dixon nor Piwowarski were asked to comment on or given the
details about any case pending or decided in Michigan Probate Courts.
“The problem is that when a person needs a guardian or conservator,
frequently the family members are not worked with by the court or by the
guardian appointed,” Dixon said. “The families are concerned, always,
about the living conditions for the ward.”
He added that a conflict between a conservator and the family can be
easily avoided with a durable power of attorney that specifically names a
family member and an alternative as guardian and conservator “and none
other.”
However, if judges arbitrarily strike down a durable power of
attorney in favor of a court-appointed guardian, Dixon noted that “they
should not do that. They should follow the family wishes. If that
happens, it should be immediately appealed.”
He added that a judge needs to demonstrate sufficient grounds as to
why a power of attorney listing a family member can be discarded.
“The record should be complete,” he said. “Showing the reasons why
this person is not qualified or cannot maintain their position.”
Piwowarski noted that the issue “can get a little bit complicated”
depending on whether the power of attorney is generic and related to
financial transactions or whether it concerns healthcare and placement
issues (a patient advocate designation.)
“In the case of the latter, unless the court specifically invalidates
that document and removes the patient advocate, it remains in
place,” he said. “The law presumes that the patient advocate would
continue serving. That document should stay around unless there was some
problem with it like there were not an adequate number of witnesses
when it was signed. There are also situations where there is a valid
document, but the patient advocate is not doing their job or honoring
the person’s preferences.”
In terms of the Constitutional rights a participant in Michigan’s
Probate Courts can expect, Piwowarski cited Michigan Compiled Law (MCL)
700.5304 (4) through (6) which addresses the rights of the individual who is allegedly incapacitated.
“They include the right to a jury trial [or] a closed hearing, if
they request it, the right to be present at a hearing, the right to
obtain an independent medical examination,” Piwowarski said. “There are other procedural rights and
protections that are supposed to be afforded the individual who is the
subject of a guardianship petition. For example, they’re entitled to
personal notice in advance of the hearing. The minimum personal notice
requirement is seven days. They are supposed to be given a visit by
the Guardian ad Litem who is then supposed to report back to the court,
in a timely manner, about whether that individual desires to contest any
aspect of the petition or exercise any procedural rights such as the
right to request something less intrusive than a full guardianship.”
According to Piwowarski, different rights are afforded to those who have an interest in the subject’s welfare.
“There are certain rights that they just don’t have,” he said. “They
can’t demand a jury trial. But if there is a durable power of attorney,
all of those individuals are entitled to notice and entitled to
participate in the proceeding.”
“In terms of who should be serving as a guardian, the nominated
patient advocate is right near the top of the list,” he added. “So, the
court should be looking to the patient advocate before almost anyone
else. The way the statute should work and the way that it’s written is
that the court can only intervene in a person’s affairs if that person
is legally incapacitated and if there’s an actual need for the court to
intervene. The court should evaluate, on the record, why a patient
advocate is inadequate. There are express provisions in the Estates and
Protected Individuals Code that tell the petitioner and the judge that
they have to identify why the court has to actually intervene
alternatives short of guardianship can’t be used.”
The question of how much power a professional guardian in Michigan has Piwowarski noted both a statutory and political dynamic.
“In terms of the statue, a guardian has the right to set appropriate
access and limit access for a protected individual,” he acknowledged.
“That said, the guardian is specifically required by statute to do
everything they can to have as full of a life and as high of a level of
function as possible. In terms of financial transactions, the court can
issue protective orders to remediate situations where a vulnerable
person made a property transfer when they didn’t understand it or were
under inappropriate influence. A conservator is not able to do something
like that without a court order and there should be pretty significant
showing before a court would reverse a transaction like that.”
“In my experience the court is typically appreciative of the
willingness of a public fiduciary [guardian] to
serve,” Piwowarski added. “There is such a need right now for a variety
of reasons; families are smaller and more spread out. The public
fiduciaries typically are overworked so I can certainly see a situation
where a court adopts an overly deferential attitude because of the role
that they serve in keeping the local legal system functioning.”
“Oakland County is the wealthiest county in Michigan bar none,” Dixon
said. “Frequently estates are incredibly large. Public administrators
can err on the side of greediness for him or herself. Frequently,
because the judge trusts them to carry out their tasks properly and in
good order and rely on them for accurate information.”
On a national level, the sheer power that has been extended by
Probate Courts over wards and family members raises the question as
to what the point is of making any kind of will when it can be rendered
meaningless.
Full Article & Source:
Guardians from Hell
