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| Kim Hall talks to her stepson Derrick Hall-Fisher, Jr. while he plays video games. |
By Mardi Link
TRAVERSE CITY – Derrick Hall-Fisher, 25, hadn’t seen a doctor in
years when an abscessed tooth caused him so much pain, he extracted it
himself.
After dementia robbed Martha Rothaug, 82, of Suttons Bay,
of her ability to live independently, she was hidden purposely away in
an assisted living facility so her daughter could not find her.
Franco
Nicolanti, 86, of Beulah, was caring for his ailing wife, Flavia, 82,
using their social security and a pension from his native Italy, when
access to his bank account was cut off and phone calls to the person
controlling his money went unanswered.
None of these people know each other, but they do have something in common.
Each
experienced a life change that alerted Adult Protective Services
caseworkers, who then petitioned the court for a guardian to control
their affairs.
Guardianship and the law
“Perhaps no civil
proceeding has greater impact upon an adult than guardianship,” said
Bradley Geller, of Ann Arbor, an elder rights attorney and author of a
handbook on guardianship. “You can lose all your rights. Where to live, who your doctor is, what you can spend your money on.”
Nationwide,
critics have continually claimed professional guardians have too much
power. That the unscrupulous among them take advantage of vulnerable
adults by stealing from their estates, denying necessary medical care
and hiding elderly parents from their children and grandchildren.
An
estate plan, complete with signed power of attorney, patient advocate
designation and notarized will is no guarantee an aging adult will not
end up in guardianship, Geller said.
Which is exactly what happened to surgical nurse Jennifer Rodgers.
Guardianship and Martha Rothaug
In
March 2017 Rodgers said goodbye to her mother and left Sutton’s Bay for
a short-term surgical assignment in Florida. Her mother, a widow, had
some health challenges but lived independently, in her own home, and
Rodgers said was capable of making her own decisions.
In Roger’s
absence, someone – Rodgers believes it was a family member – found
rotten food in Rothaug’s refrigerator, called Adult Protective Services,
and APS worker Michelle Hagerman filed a complaint.
“Jennifer has
had no regular physical contact for 4 years with Martha,” Hagerman
wrote, though this was clearly false. Rodgers lived a few miles from her
mother, they saw each other regularly, and had said goodbye to each
other just days earlier.
Hagerman, who declined comment and
referred questions to the state’s department of Health and Human
Services, also accused Rodgers of unsubstantiated financial crimes.
“They were lies,” Rodgers said. “Complete lies made up to put me in a bad light.”
Bob Wheaton of Health and Human Services said he could not comment on specific cases.
Before
Rodgers could return to Michigan, Hagerman filed an emergency petition
with Leelanau County Probate Court and Judge Larry Nelson, who placed
Rothaug under guardianship.
Jill Case, a supervisor with Grand
Traverse County’s Commission on Aging, was appointed to make all of
Rothaug’s housing, medical and financial decisions.
Neither
Rothaug nor Rodgers had ever met Case, and surveys of guardianship files
in area probate courts show this is not uncommon.
Guardians: Often strangers to their wards
“When
there is no relative, no family member willing or qualified to make
decisions for an incapacitated adult, probate judges appoint court
volunteers or professional guardians,” said Grand Traverse County
Probate Judge Melanie Stanton.
Stanton stressed she could not
comment about specific cases, but acknowledged clarity on the way
professional guardians are allowed to run their businesses is needed.
For example, there is no certification or training required and no limit
on the number of wards a guardian can have.
“I always want to
make sure the person is taken care of,” Stanton said of the wards before
her court. “I want to make sure they’re seen every three months, and if
someone can’t do that, or isn’t capable of doing that, I do not appoint
them. Some people don’t like that, but it’s the law.”
Court
documents show Case, who could not be reached for comment, moved Rothaug
out of her home and into assisted living, first to a facility in
Northport and then to another facility in Grand Traverse County.
“I
didn’t know where my mother was,” Rodgers said. “I wasn’t allowed to
know. My only recourse was to hire an attorney and fight it in court.”
A
change of venue and more than $200,000 in legal bills later, Judge
Stanton ruled Rodgers and a different professional guardian, Brenda
Miller, of Northern Fiduciary Services, would manage Rothaug’s affairs
together.
The arrangement worked. Rodgers could see her mother as often as she liked, but says it was a bittersweet victory.
Rothaug
was diagnosed with Alzheimer’s disease. Because of the guardianship
debacle, Rodgers missed out on time with her mother she can never get
back.
“This whole guardianship nightmare took two years from our
lives,” Rodgers said. “I still just don’t understand how it can possibly
be legal.”
A Lack of Accountability
In Michigan,
political discussions about guardianship’s legality, and its potential
for abuse, have a long – and mostly impotent – history.
- In
1998, Gov. John Engler worked with Chief Justice Conrad Mallet, Jr. on
the Supreme Court Task Force on Guardianships and Conservatorships.
- In
2007, Gov. Jennifer Granholm appointed 15 bureaucrats, attorneys, law
enforcement officers, insurance administrators, finance experts and
elder rights activists to serve on her Task Force on Elder Abuse.
- In
2019, Attorney General Dana Nessel created an Elder Abuse Task Force
and went on a statewide listening tour, telling the rankled crowd at the
Traverse Area District Library in July, “These issues have been
researched and discussed already, ad nauseum. This task force is
committed to doing, rather than just studying.”
Geller said
guardianship should be a probate court judge’s last resort, not its
first instinct, but that two decades of study groups have resulted in
little real change.
Nessel’s communications director, Kelly
McKinney-Rossman, confirmed no new legislation aimed at regulating
guardianship has been introduced this year.
Guardianship and Derrick Hall-Fisher
Kim Hall said she wishes there were better laws looking out for people like her and her stepson, Derrick Hall-Fisher, Jr.
“This
whole guardianship thing, it leaves people who can’t afford a lawyer,
at their mercy,” Hall said. “It lets strangers make life-long decisions
for people they don’t even know.”
In May, Hall said she learned
her stepson, who has autism, was in what she described as a “dangerous,
difficult circumstance.” She called Adult Protective Services, which
assigned a caseworker, Brandi Fitzgibbons.
“She said they had a placement for him, they just needed to get it
staffed, and asked if I could house my stepson for four days,” Hall
said. “I said of course. The nightmare began from there.”
Weeks
passed, Hall learned her stepson had pulled his own tooth before he came
to live with her and that his overall physical health was precarious.
She
made a series of medical appointments for him, signed him up for
counseling and said he delighted in the new superhero-themed clothes and
bedding she bought him.
Hall and her stepson’s father, Derrick
Hall Sr., divorced in 2009, the two rarely speak and court documents say
Derrick Jr. was removed from his father’s care sometime in 2018.
In
an interview at the Leelanau County Courthouse, where Derrick Hall,
Sr., was called to testify in a hearing about where his son would live,
the father said he loves his son and wants what’s best for him.
With
a new wife and several much younger children, he was happy to work with
APS, because he could not give Derrick, Jr. the specialized care, time
and attention his oldest son needed.
“Kim is on a fixed income, that and I’m a happy man now so what she’s doing could be to get back at me,” Derrick Sr. said.
Problems arose when APS could not find a group home willing to take in Derrick Jr.
“I’d
say, ‘Today’s the day, buddy. Today’s the day you’re going to move into
your new home and it’s going to be great,’ ” Hall said. “But it wasn’t
great. It wasn’t great at all. They (APS) canceled time after time. They
were treating Derrick like a ping pong ball and I couldn’t bear it.”
Leelanau
County Probate Judge Marian Kromkowski granted Hall co-guardianship of
her stepson, along with professional guardian Jessica Carnes of
Pro-Advocates Guardians & Conservators, LLC, of Benzonia.
Hall
said neither she nor her stepson had ever met Carnes, and she wasn’t
sure why the court required a co-guardian but she didn’t object.
Attorney
Heather Dykstra was appointed guardian ad litem, a temporary assignment
that required her to investigate and then advise the court on what
would be in Derrick Jr.’s best interest.
She did not return several calls for comment, but said this in her June 10 report:
“Derrick
clearly enjoys living with ‘Mama Kim,’ as he calls Kim Hall. She has
been transporting him back and forth to school on a daily basis and
taking him on many outings. Derrick initially arrived at her home with
only one pair of shoes and one outfit but she has provided him with a
few additional necessities.”
Despite this, Dykstra said Hall did
not have the resources to care for Derrick Jr. long term, recommended a
group home, and on July 25, Fitzgibbons told Hall her stepson would be
moving out.
“She said I was too enmeshed in his life,” Hall said. “What does that even mean?”
Fitzgibbons,
who declined comment for this story, had chosen Piper’s Place, an AFC
Home owned by Valerie Freeman, who attends the church where Derrick Hall
Sr. works as an associate pastor.
Derrick Sr. said he supports
the decision because Freeman could bring his son to church, and the two
could see each other regularly.
Hall said she was crushed by the
decision, but tried at first to put on a brave face about the change.
But then she took her stepson to visit the facility and was disturbed by
his reaction.
“When he gets anxious, he likes me to rub his hand
or his ear,” Hall said. “And when he gets anxious, he stutters. He was
doing all those things and the owner just kept telling him to spit it
out. It broke my heart. I don’t want him there.”
The move happened
Oct. 18, but Hall kept doing research. After learning the Bureau of
Licensing and Regulatory Affairs cited Piper’s Place nine times since
2017, she decided to fight the move.
Hall represented herself in a
four-hour closed hearing Nov. 19 in front of Leelanau County Probate
Judge Marian Kromkowski. A decision is expected by the end of December.
Professional Guardianship and Fees
Some
of the criticism against guardians has come from those, most notably
Geller, who said the estates of wealthy vulnerable adults are being
pilfered.
That is not what the Record-Eagle uncovered.
Of
the three cases examined for this article, Rothaug was the only ward who
had substantial means beyond Social Security income, and there’s no
evidence any of her guardians (or conservators, the more common title
for those who make financial decisions for a ward) misused funds.
What is in evidence is an almost universal lack of communication between professional guardians and their wards.
Derrick
Hall Sr. had control of Derrick Jr.’s $780 in monthly Social Security
income during the time he lived with Kim Hall, according to Dykstra’s
report, though none of those funds were provided to her for his care.
Jill
Case had complete control of Martha Rothaug’s finances, her medical
care, the schedule and number of her home health care aids, and her
living arrangements. According to a letter from Case to Judge Nelson
dated July 13, 2017, Rothaug did not understand what was happening to
her.
“I spoke to Martha about the assisted living move,” Case
wrote to Nelson. “We spoke about the aids coming to her house. Martha
asked why I was doing this to her. I reminded her that she has a disease
and that the doctor said she needed 24/7 care. I told her that it was
my job to make these decisions to look out for what is her best interest
and where she lives.”
In another example, at a hearing August 6
in Benzie County Probate Court, Flavia and Franco Nicolanti attended, so
they could tell the court that yes, they did still need help with their
finances. They just didn’t want that help to come from professional
guardian Anna Feala anymore.
“Mr. and Mrs. Nicolanti are not
comfortable with how Ms. Feala is handling their money, they find it
difficult to get Ms. Feala on the telephone when they have questions,
and in general it is simply a poor fit personality-wise,” wrote attorney
Brian Johnson.
Johnson had been assigned guardian ad litem, to
investigate and deliver a report to the court on what would be best for
the Nicolantis.
Their difficulty getting Feala on the phone mirrors the problems with guardianship on a larger scale.
Feala could not be reached for comment and Johnson did not return calls for comment.
Because
so many of the details and life events that put a person in
guardianship are confidential — family strife and abuse, medical issues
and financial details for example — state and local officials have
legitimate reasons for not speaking publicly.
Those same issues,
however, can provide cover for indiscriminate decisions based on opinion
and what appears repeatedly to be an inflated sense of power and
authority, and not always on facts.
“I can say this,” Kim Hall
said about her efforts on behalf of her stepson. “I know that I did
everything that I absolutely could for Derrick when I had him with me. I
can’t beat up on myself too much. I know that I did everything I
could.”
Full Article & Source:
Area families caught in 'nightmare' of guardianship
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