In Whose Best Interest?

When the elderly enter the guardianship system, it’s hard to tell who wins.
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Posted September 8, 2010 by JEFF PRINCE in News

The courtroom door swings open and a well-dressed woman who’s approaching 90 pokes her head inside and glances around. She smiles at a stranger and says, “Good morning,” revealing a German accent. Then she settles into one of the empty benches and waits for her hearing to begin. A handful of friends sit around her, talking quietly, killing time. The judge is running late on this hot August morning.

coverBefore long, the woman with the sweet smile would be under oath, confused and crying, fielding questions from attorneys and the judge who will determine whether she’s competent enough to care for herself.

“I have done nothing wrong,” Mary would say again and again.

It’s true. Mary’s only offense was outliving two husbands and finding herself on the dusk side of life with sporadic episodes of dementia and no close relatives. Money isn’t a problem. She’s got plenty. On the other hand, money is a problem. Other people seem to want it more than she does.

Mary’s financial acumen is nil. Utility bills went unpaid and checks uncashed after her husband died in 2003. Her home fell into disrepair even though her estate currently tops $2 million. She took in stray cats that soon multiplied. She loaned money to acquaintances who didn’t repay it.

Friends stepped up and tried to help manage her affairs, but eventually Tarrant County Adult Protective Services showed up to investigate. A caseworker notified the court, prompting a long series of hearings. Since all involved seemed to have Mary’s interests at heart, surely something would work out. Instead, clear battle lines have been drawn, over the months, between her friends on one hand and a powerful, tight-knit network of judges, attorneys, government agencies, banks, professional guardians, and care providers on the other.

Tarrant County’s probate court system has evolved over the past couple of decades in response to a growing number of elderly people outliving their health, loved ones, wits, and, in many cases, their money. This safety net has done wonders in improving people’s living conditions.

But as the system has grown, so have the complaints — not just locally but nationwide. Families are stepping forward to accuse the court system of needlessly taking control of elderly people and their money, isolating them from loved ones, and prematurely putting them in nursing homes and hospices — actions that sometimes seem to benefit the system players more than the elderly (“Rethinking Guardianship,” May 19, 2010). The old adage that you can’t fight city hall is even more apt when you’re taking on a judicial system. Several people interviewed for this story were so worried about the power of the courts to injure their lives and reputations that they asked for their full names to be withheld.

Mary’s court-appointed attorney Sharon Gabert told Fort Worth Weekly the court’s guardianship program doesn’t troll for clients; it responds to the concerns of social workers, she said.

The court “didn’t go looking for Mary,” she said. “She was referred by Adult Protective Services.”

But who notified that agency?

“I reported it,” Fort Worth attorney Steve Katten said.

Katten’s law firm specializes in estate planning, wills, and trusts. He handled Mary’s estate after her husband died. But problems developed after Katten and the man to whom Mary gave her power of attorney disagreed on where to park her money. Katten preferred downtown Fort Worth’s Wells Fargo Bank, which manages many of the guardianship estates in Tarrant County.

Katten is also board president of Guardianship Services Inc., a pseudo-governmental group of paid and volunteer guardians who act as surrogate decision-makers for incapacitated people. Tarrant County taxpayers are the major contributor to the agency’s $1.1 million budget.

One of Katten’s fellow GSI board members is Kathy Christoffel — who also happens to be senior vice president at Wells Fargo Bank and the current trustee of Mary’s management trust.

“She [Christoffel] is part of the cult,” said Debby Valdez, a San Antonio-based activist who has recently focused on Tarrant County in her long fight against guardianship abuses.

Katten also has a direct line to Adult Protective Services. One of his law firm employees is the former president and a  current member of the agency’s community board in Tarrant County.

And that board’s treasurer until recently was Colleen Colton, executive director at Guardianship Services Inc.

In Mary’s case, Katten’s report to APS didn’t require much effort, at least on his part. One of his employees, Kim Olmedo, was the local agency’s board president at the time. She typed up the report online and sent it to APS headquarters in Austin. A notice went out to a local adult protective worker, who made visits to Mary’s house over several months. The caseworker notified the court, and the ball was set rolling to determine whether Mary needed court-appointed guardians and attorneys to handle her finances and almost every other aspect of her life. The legal costs would be deducted from her estate.

People working within the probate court system say they take over guardianship of elderly persons only as a last resort. But Tarrant County residents describe court-appointed strangers stepping into family situations and enjoying near carte blanche in deciding people’s fates. Friends and relatives are scrutinized up and down while, they say, the actions and conflicts of interest involving the court and its players are subject to little oversight.

After Mary’s hearing ended, she collapsed in a hallway. Stress and worry had taken their toll. Friends rallied around, gave her water, soothed her, and she was soon recovered enough to walk out of the courthouse.

Days later, she returned for another hearing and more tears and stress. More hearings would be scheduled as the court tried to determine whether she would be assigned a permanent guardian and whether the guardian would be a friend or a court-appointed professional.

Fighting the probate court system is akin to battling the wind with a flyswatter. Opponents were pessimistic about their chances of keeping Mary in her own home, among her friends.

Probate Judge Patrick Ferchill began looking into Mary’s situation last year, appointing a court investigator and assigning an attorney and guardian to represent her.

Wading into the lives of elderly people can be tricky. They can be resistant to outsiders. Relatives and friends can also be difficult to deal with, often resenting the court’s intrusion. Judgment calls about people’s character have to be made, a task fraught with intangibles. Anger and resentment resound. Associate Judge Lin Morrisett said the court gets it right most of the time, but the complexity of the cases mean mistakes sometimes occur.

Want to see the court flex its muscles? Disagree with a decision, get frustrated and angry, and pitch a fit. You might find yourself banned from seeing your loved one again. The court has that power.

From the beginning, court papers referred to Mary as an “incapacitated person” — even before independent doctors had diagnosed her as such. Katten, who’s drawn up many court papers over the years, described it as so much semantics.

“Whenever there is a guardianship it’s always styled as a ‘incapacitated person,’ even when the person hasn’t yet been adjudicated as an incapacitated person,” he said. “That’s just the way the styling is. Sometimes if I remember I’ll put ‘allegedly incapacitated’ person.”

 


I ask him if characterizing people as incapacitated before they’ve been diagnosed might bias a court.

“They really don’t pay much attention to the captioning,” he said.

Concerns about Mary’s health and financial exploitability are what Katten says prompted him to notify Adult Protective Services.

The agency sent a caseworker to Mary’s home several times in 2009. Reports portrayed Mary, who lives alone, as forgetful and confused but well groomed and tidy.

feat_1During those visits, Mary complained about friends who borrowed money and didn’t repay. The caseworker suspected exploitation and sent a doctor, who described Mary as “probably borderline incapacitated.” Subsequent exams by two doctors since then have both characterized her as partially incapacitated, with memory loss and early signs of Alzheimer’s.

Ferchill’s investigators, guardians, caseworkers, and attorneys examined Mary’s finances, visited her home, ordered medical exams, and appointed Christoffel of Wells Fargo as Mary’s money manager. The bank’s attorney of record in the case: Katten.

During this time, Mary complained to friends about strangers coming to her home and bothering her. She suspected the state was angling to sock her away in a nursing home. She gave power of attorney to a local business owner and longtime friend named Howard, a man also in his 80s. They’ve known each other for 50 years. Mary’s friend Rebecca Madden offered to become her guardian.

Howard and Madden soon found out how difficult it is to butt heads with the court and how quickly they could come to be portrayed as shady, exploitive leeches. Howard arranged for a nursing assistant to take care of Mary. The caregiver, Brenda, found her character questioned as well.

Howard decided Mary’s ad litem attorney was more interested in pleasing the court than giving fair representation, and so he helped Mary submit a request to hire independent counsel. At the hearing in early August, Ferchill was unavailable, and Morrisett substituted for him. Mary said she didn’t want court-appointed guardians and attorneys handling her affairs, she wanted Madden and attorney Robert Morris. 

Mary’s court-appointed guardian, Lucy Brants, began asking Mary questions about timelines — a topic that easily confuses her. When did your first husband die? When did you move to Fort Worth? What’s the current date? Mary responded well at first but then became flustered. Brants made several remarks that seemed to question the motives of Mary’s friends.

After that, Howard was called to the stand.

“The innuendo that has been delivered has been extremely offensive,” he told the judge, referring to Brants’ questions. 

He described Mary as being in good health other than short-term memory loss that comes with age. He praised Brenda for being a solid caregiver — she’d looked after Howard’s bedridden wife for two years. Brenda was tough. Mary called her “the sergeant major.” But she was also caring and protective.

Howard touted Morris as a capable attorney, one whom Mary trusted. The loans Mary had given to a few of her friends in recent years represented a tiny fraction of her wealth. Mary hails from Latvia, spent years in Germany, and has a European sensibility when it comes to money: She has traditionally made loans to friends in need, expecting little except that she be able to count on them in turn, in a pinch.

“I hope there is no guardianship,” Howard told the judge. “Mary has not been scammed.”

By then, Wells Fargo had already begun overseeing Mary’s trust on direction of the court. Mary was given a small allowance, and her bills were being paid for her.

Madden was next on the stand; her motives were also questioned. Madden owns a Fort Worth restaurant where Mary eats lunch almost every day. One of Mary’s unpaid loans was made to a restaurant employee.

Madden told the court she had helped Mary find the prospective new attorney by calling three different law firms, arranging interviews between attorneys and Mary, and then choosing the one Mary liked most. Mary said she didn’t trust the court-appointed attorney and wanted her own.

But the judge refused the request for Gabert to be replaced. It was after that decision that Mary collapsed in the hallway.

Another hearing was scheduled for the following week to see if Madden could take the place of the court-appointed guardian, Brants.

What happened next illustrates some of the problems that have caused local families to fear the system.

Mary’s friends came to court loaded for bear. Madden not only sought permanent guardianship, she’d prepared a letter asking for a jury trial on the issue, and Mary had signed it.

Before the hearing, Gabert approached Mary and asked to speak to her alone. Mary wanted Madden included in the conversation. Gabert refused. Madden insisted. A verbal altercation ensued, with Gabert waving her case file at Mary’s friends and telling them to back off while simultaneously tugging on Mary’s arm and leading her to a more private section of the hallway. A wide-eyed Mary did as she was told but kept looking back in alarm at her friends.

 


Gabert and Mary sat on a bench, and the attorney leaned in close and spoke quietly. But Mary kept insisting that Madden be included. Madden walked up and handed Mary a piece of paper — the document requesting a jury trial.

Gabert asked Mary if she knew what the paper meant.

“Yes, I would like a jury trial,” Mary said.

“I don’t think a jury trial would be in your best interest,” Gabert said, describing how strangers would be privy to the intimate details of her life. “You don’t want that.”

Mary didn’t back down.

“This is a violation of my rights,” she said.

feat_2They went back and forth for 10 minutes. Gabert never agreed to seek a jury trial, although it was within Mary’s legal rights to ask for one. Afterward, Gabert told the Weekly that she couldn’t discuss the case while it was being adjudicated, but she mentioned Mary’s poor showing on the stand at an earlier hearing as proof she wouldn’t do well in front of a jury. Gabert was trying to protect her, she said.

In the hearing that followed, it was clear that Brants, Mary’s court-appointed guardian, was no more eager than Gabert to relinquish her court-appointed role.

“My client has been used and exploited by people for their purposes,” Brants said.

Ferchill, to “reduce the stress,” cleared the court of everybody except Mary and the court-appointed players. Even Madden was sent out, though the hearing concerned her ability to serve as guardian. Madden isn’t just a restaurant owner, she’s worked as a crisis counselor and social worker and has a bachelor’s degree in psychology and a master’s degree in healthcare administration.

“It would be a major big deal to say she’s not qualified as a guardian,” activist Valdez said.

Clearing the courtroom irked the visitors for another reason. Probate judges have been known to use ex parte hearings — closed hearings in which only one side is represented — to remove relatives as guardians without giving them a chance to defend themselves. Relatives who have been replaced as guardians that way in Ferchill’s court in other cases considered appealing those decisions but were stopped by the demand that they put up a $10,000 bond.

As a result of such hearings and other perceived abuses, families across Texas have turned to legislators to change guardianship laws. At hearings held earlier this year in Austin, state senators expressed concern about guardianship abuses and the use of ex parte hearings. Sen. Jane Nelson particularly spoke strongly about re-examining the rights of courts in guardianship cases. Still, forceful new legislation doesn’t appear to be looming anytime soon.

Outside of Ferchill’s court, Mary’s supporters voiced their concerns. “They’ve got her in there all by herself, but she’s supposed to be an ‘incapacitated’ person,” Valdez fumed.

Katten, who had shown up for the hearing, saw things differently, speculating that the judge cleared the courtroom to calm Mary. “He wanted to limit the number of people in the courtroom to reduce the stress for her,” he said. “He is trying to make it as easy as possible for her to tell her story.”

Mary’s friends sat on one bench in the court hallway and cast scornful glances at Katten, who sat against the opposite wall.

Katten said he made the call to Adult Protective Services that started the guardianship process because he was worried that Mary “could be taken for lots of money.”

Mary’s supporters agreed but said the people trying to raid the coffers were the court’s crew and the bank, including Katten, who serves as Wells Fargo’s attorney on the case. Segregating Mary was a way to manipulate her, remove her rights, and suck her into the system, they said.

“That’s the way things are done in this court,” Valdez said. “These are the tactics we’ve seen used in other cases — they intimidate and isolate. They’ve got her cash, and so she can’t even hire an attorney without the court’s approval.”

Despite her sizable estate, Mary lives on a $250 a week allowance doled out by the bank on court orders. Since her bills were being paid, the $250 was considered mad money for her to maintain some financial freedom.

As it turned out, though, not all of her bills were being paid.

When Wells Fargo took over the managed trust, Mary’s caregiver, Brenda, was clashing with the court. Brenda had verbally tussled with one of the court’s social workers during a home visit. Afterward, Brenda began to have difficulty getting paid by Mary’s court-appointed financial trustee, Christoffel.

“She’s responsible for paying Mary’s bills,” said Brenda, a single mom earning $20 an hour to tend to Mary. “I’m not a big corporation. I can’t go 30 days without pay.”

Katten’s call to adult protective workers came only after he’d received worried calls from a few of Mary’s friends and relatives concerned about her mental health. “She had real memory issues,” Katten said.

One of those friends refused comment for this article, saying she wanted to “remain neutral.” But another friend, who didn’t want her name used, agreed with Katten.

“I’ve known Mary for 33 years now, and I was helping her out after she retired,” she said. “I realized she was getting senile, and I tried to go over there every day. I was worried about her, and I would tell [Katten] about it.”

The woman served as executor of Mary’s estate for about a year and felt Mary’s wrath during incessant phone calls.

“She started getting kind of crazy, and she would call me and just cuss me out,” she said. “Then she’d apologize. Then I’d go over there, and she’d blow up again. I had to turn my phone off at work. When I answered it, Mary would accuse me of trying to take over her life.”

Mary realized she wasn’t any good at handling money but seemed to resent those who did it for her. During a long professional career, Mary had been a botanist, a Department of Interior bill writer, and a United Nations worker among other things. She is highly intelligent and educated. She remains well versed about current events and can show flashes of wit and insight. But she is easily befuddled, and when dementia confuses her, she can react with anger and suspicion. After she accused her friend of stealing, the friend relinquished her role as estate manager.

“It was so stressful I couldn’t take any more,” the woman said.

 


Mary’s stepdaughters were also calling Katten, saying they’d been on the receiving end of irate phone calls. (Mary doesn’t maintain a close relationship with her stepdaughters, in part because of disputes over the estate). But what really seemed to push the matter toward the probate court was the soured relationship between Katten and Howard, to whom Mary had given power of attorney. Howard is a crotchety man who doesn’t suffer fools (or almost anybody else) gladly.

“His ego has gotten out of control,” Katten said of Howard.

feat_3Katten also pointed to conflicts of interest. For instance, Howard decided that Brenda would make a perfect in-home caregiver for Mary. But Howard had loaned $25,000 to Brenda to help her buy a mobile home.

“He has a financial interest in making sure Brenda has employment because he holds the mortgage on her home,” Katten said.

Meanwhile Katten was hearing about Mary making loans that went unpaid, and he smelled something fishy. He decided it was crucial to get the state involved in order to get Mary’s money into a managed account and to look after her welfare. But Howard didn’t want the money to go to Wells Fargo.

“He would accept any trustee other than Wells Fargo because it wasn’t his idea,” Katten said. “Why is it his choice?”

Howard says the same thing: Why is it Katten’s choice? Howard, after all, had been given power of attorney.

In the end, Mary’s money did end up with Wells Fargo, where Katten often provides his services as an attorney.

How much business does that bank get from Ferchill’s court? The court’s computer system isn’t set up in a way to pull that information quickly, but Morrisett said the bank is a major player and has “successfully handled a boatload of cases in this court.”

Most banks don’t like to handle guardianship trusts because they are often relatively small and earn little money for the bank, he said. (A recently retired local banker confirmed this, saying banks earn a small percentage from these estates and seldom profit much unless the estates stretch well into six figures or more) For instance, an estate of $100,000 might generate only about $5,000 a year in fees for the bank, which might not even cover the staff’s time.

“There is work that goes into managing even the simple trusts,” Morrisett said. “[No bankers are] banging down our door.”

Keeping score on the potential conflicts of interest in Mary’s case is tough.

Among Mary’s friends: (1) Howard got his wife’s caregiver, Brenda, to work for Mary, and he holds a $25,000 mortgage on Brenda’s mobile home. (2) Madden’s restaurant employee had hit Mary up for a loan and failed to pay it back.

feat_4On the court’s side: (1) Katten worked as Mary’s attorney when settling her estate, clashed with Howard over where her money should go, reported Mary to Adult Protective workers, and got the ball rolling on guardianship. (2) A Katten employee is a board member of Tarrant County Adult Protective Services and filed his complaint.  (3) The court-appointed estate manager, Christoffel, serves with Katten on the Guardianship Services Inc. board and is a Wells Fargo Bank senior vice president.

If not for Howard’s stubbornness, Mary most likely would have had her money protected, Katten wouldn’t have felt compelled to call adult protective workers, and the court wouldn’t be pursuing guardianship, the attorney said. Instead Howard was stripped of his estate management duties, Brenda was fired, and court guardians and attorneys took over Mary’s affairs — with their costs being paid from her estate.

“It seems to me that she is an incapacitated individual, and she is at risk,” Katten said. “That’s my duty to report to Adult Protective Services when I believe there is a possibility of abuse, self-neglect, or exploitation.”

But Morrisett said he understands how someone on the outside looking in might perceive conflicts of interest on the court’s side.

“They are right to be concerned,” he said. “I like that they are looking at this. It keeps everybody honest.”

The group of 10 people who gathered to support Mary before a recent court hearing included several local residents who have watched their own families torn apart by court-appointed guardians, attorneys, and caretakers. They predicted Ferchill would shun Madden and appoint one of his favorite private-practice professionals, Ann Hill, as Mary’s new guardian.

“Then they’re going to own Mary,” Valdez predicted.

Hill was one of the first employees ever hired by the county’s Guardianship Services Inc., of which Katten is board president. Hill is now a professional guardian and takes on court appointments.

Sure enough, Ferchill appointed Hill as the new temporary guardian. One of the first things Hill did was to request that Brenda be removed as Mary’s caregiver. Brenda, trying to protect Mary, had run interference when Hill had come to visit Mary.

“She said Brenda was hostile,” one of Mary’s friends muttered. “They’re getting their own people.”

Casting suspicion on families and friends is standard procedure for the court, said Fort Worth resident Carla Baumgardner, whose mother died in a nursing home during a guardianship dispute. The court and its caseworkers have the power to play God, she said.

“They market themselves as the perfect solution, but they’re human too,” she said.

Mary’s new guardian declared that Mary’s friends would be banned from visiting her at her Fort Worth home for two weeks. Friends would be allowed to see her only during her daily lunch visits at Madden’s restaurant. “It’s to give her time to adjust to the [new] caretaker situation,” Gabert said. “It’s kind of common.”

From 2006 to 2010, attorney and consultant Terry Hammond served as executive director of the National Guardianship Association Inc., a group of guardianship practitioners. He said restricting visits at the beginning of a new guardianship case is necessary in some cases.

“Guardianship by its very nature is a restrictive process and by definition restricts the rights of people to do things,” he said. “It is part of the due diligence of the third-party guardian to assess the conditions of the person’s life. That may take hours, days, or weeks. It depends on the case.”

Ferchill didn’t completely slam the door shut on Mary’s friends: He scheduled another hearing on Sept. 23 to allow Madden an opportunity to hire an attorney and present her case for becoming Mary’s permanent guardian.

“Mary has been a great friend for the past 15 years, and I want what’s in Mary’s best interests,” Madden said. “She needs to be taken care of by someone who knows her and appreciates what she likes. If she is appointed a guardian she does not know, it would be unfair to her.”

However, once the two-week assessment period was up, Ferchill made a decision that surprised Mary’s friends. The hearing on Madden’s permanent guardianship was moved up by three weeks. On Sept. 1, Gabert and Brants both told the judge that Madden would make a suitable guardian. The judge made it so.

Frequent court critic Kathie Seidel said the decision was out of character for the guardianship system and most likely attributable to a journalist’s frequent presence at Mary’s hearings in the preceding weeks.

“They probably did that because they knew you were writing a story, but my prediction is Rebecca won’t remain guardian for very long at all,” Seidel said.

The rest of her prediction: Once the Weekly’s spotlight fades, the court will find a reason to swoop back into Mary’s life, seize guardianship once again, shut out Mary’s friends if they protest, and stick Mary in a  nursing home against her will.

Before the hearing, Madden too had been skeptical. “All her wealth is being tied up, and they want to control it,” she said. “If Mary was penniless, we wouldn’t be here. They want to pay whoever is in that little circle, appoint the attorney and guardians, and they’re all going to be paid out of Mary’s estate.

“I want to do this guardianship for free, and I don’t understand why that’s such a problem,” Madden said.

After Ferchill officially appointed her as guardian, Madden clearly felt she had to be more careful about what she said. Crossing swords with the court is a losing proposition.

“I’m happy with the court’s decision,” she said.

She didn’t want to risk putting herself at odds with a system that can swallow up people and spit them out with ease. Dealing with Mary won’t be easy, but Madden said she and her husband don’t anticipate the problems experienced by the court-appointed guardian and attorney.

“She knows we have no ulterior motives,” Madden said. “We’ve taken care of her for 13 years without any monetary gain. She won’t turn on us because we have her best interests at heart.”

She can bet the court will be watching.


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