RMN probate series, part 1

The probate pit
Busted system, broken lives
Lou Kilzer and Sue Lindsay, News Staff Writers
April 7, 2001
The Rocky Mountain News
http://www.rockymountainnews.com/drmn/local/article/0,1299,DRMN_15_246760,00.html
On a quiet spring day, retired Air Force Col. Farrell Hupp had what doctors called an episode.

He appeared to become confused while driving in Denver, argued with his wife and ran over some curbs at a construction site.

The former comptroller, who once handled billions of dollars for NATO, didn’t know it at the time but he had just stepped through the looking glass and into the world of Colorado’s probate system.

Before long, Hupp, then 74, had lost his wife, home, possessions, freedom and, what was most important to him, his dignity.

He had had a bad day. He ended with a bad life.

Hupp was one of hundreds of Coloradans over the past decade to become wards of probate court with control of their lives turned over to caregivers appointed by a judge.

Most of these cases are routine: family members taking guardianship of loved ones who no longer can handle their own affairs.

But in some instances, family disputes or the lack of close relatives make that impossible. Then, professionals take charge, and people such as Hupp can find themselves plunged into a world of upside-down justice.

It is a world in which citizens can lose their freedom at hearings they don’t attend, then pay the bills of lawyers arguing against their release.

It is a world in which guardians spend the money of the people in their care to take actions that may be against their will.

It is a world where simply shopping for shoes or scheduling a dental appointment can cost hundreds of dollars.

It is a world where conflicts of interest abound as judges appoint members of a close-knit, for-profit industry to control the lives and bank accounts of vulnerable Coloradans with scant government oversight.

A Rocky Mountain News investigation uncovered a broken system that too often breaks fragile lives. Among the findings:

People are declared incapacitated, then must battle their own guardians — who are paid only if a ward is incompetent — to regain their freedom.

Bills from court-appointed guardians are routinely rubber stamped by probate court without review. A Denver prosecutor who has examined probate cases says it’s not a crime for professional guardians to charge their incapacitated wards excessive fees as long as some service is provided.

Wards are lured by their guardians to lunch dates or doctor appointments then seized by deputies and taken to locked facilities or moved into new homes.

“A person has more rights as a defendant in a criminal case than a person in a guardianship or conservatorship,” said Denver attorney Cris Campbell, who has handled probate cases.

Linda Smoke, another attorney who has practiced in the system, said, “I have been totally outraged by things that I have seen.”

But Denver Probate Judge Jean Stewart says such criticism is overblown.

“I don’t want you to frighten people into thinking that probate court is a bad place,” Stewart said. “A very teeny-weeny part of probate involves guardianships, and few of them are these controversial, contested cases. Generally what we do is of great service to the people of Colorado.”

‘There is virtually no oversight’

On Nov. 11, 1997, Denver newspaper readers were greeted with news that probate lawyer Michael Dice had been charged with stealing $217,000 from his clients.

To those involved with probate cases, the news was shattering. Dice had seemed the very model of rectitude. A former official of Denver’s probate court, Dice was seen as a champion of the elderly and an opponent of those who would exploit the infirm.

Eventually pleading guilty, Dice traced his problem to cocaine addiction.

Others traced the problem to the probate system itself.

“Mike just happened to get caught, but his problem is indicative of a system that allows these things to happen,” said Alice Kitt, head of a watchdog group called Guardianship Alliance of Colorado. “There is virtually no oversight. As a result, people can get away with exploiting someone for years and years — until there is no estate left.”

When people think of probate court, they often think of wills. But the Dice case involved another important function of the court: adjudging living people incapacitated and overseeing their care.

Most often, that involves a family member being appointed guardian or conservator for a relative who can no longer handle his affairs and has been made a ward of the court.

But in many cases, no family member is available or there is a dispute over the handling of a ward’s affairs. That is where an industry of professionals steps in. And that is where conflicts can arise, because the professionals both manage the affairs of the incapacitated and bill those same people for the service.

Dice largely committed his crimes while acting as a conservator — someone entrusted with making sure a ward’s money is spent wisely. There are others who are professional guardians — charged with looking after the physical well-being of the ward. And, until recently, there were those who wore both hats.

‘All in bed together’

Watchdog groups such as Kitt’s helped pass legislation last year that no longer allows the same person to be both guardian and conservator. But many who are familiar with the probate system fear this check and balance will make little difference because the system is controlled by a small, tightly-knit group of insiders.

“The way I see it, they’re all in bed together anyway,” said Bob Barry, a former nursing home ombudsman for the Denver Regional Council of Governments who has researched more than 100 local probate cases.

The problem is magnified in Denver, where a special court and single judge handle all probate matters. In other jurisdictions, probate cases are spread among judges whose dockets also can include criminal and civil cases.

“Denver Probate Court has always been an informal, insular court, specially created, with a circle of attorneys and professional fiduciaries and one judge,” Denver attorney Campbell said. “It engenders an old boys’ network.

“That couldn’t happen in a worse place than a court where vulnerable elderly people are in danger of losing all their rights.”

Officials of probate court who return to private practice not surprisingly take that expertise back into the court and serve as guardians, conservators and advocates. Dice, for example, was a former court magistrate and clerk.

Likewise, attorneys who practice in the system go on to be court officials. Stewart specialized in probate law before being appointed to the bench in 1995.

The specialized and insular nature of the court drives other lawyers away.

“Since I’m an outsider, I don’t want to go there with important things because that outside status would affect me. It’s not a level playing field,” attorney John Holland said. “There’s the sense that there’s a lot of informal decision-making and things are prejudged based on politics or connections between people.”

Lightning rod for critics

Professional social workers also specialize in probate cases.

One who has been a lightning rod for critics is Gordon Wolfe, a professional guardian, conservator and care manager. Wolfe received a master’s degree in social work from the University of Denver and worked for many years as a social worker before forming Human Network Systems, a company that provides probate services.

Through this company, he has been a player in many contentious cases. In one such case, Stewart served as Wolfe’s attorney before she was appointed probate judge.

Wolfe had been named guardian for Rose McFarland, the Boulder heiress who was the daughter of famed Louisiana populist Huey Long. McFarland’s daughters wanted Wolfe removed as guardian in 1994.

Stewart negotiated on Wolfe’s behalf, proposing that he resign and that the daughters agree not to sue him or criticize him in public.

After Stewart became probate judge the following year, she recused herself from one case involving Wolfe in response to a motion by a party in the case, but she has since heard many other cases in which he has been involved.

“When I first came on the bench I tried to identify every case I or my law firms had worked on, but it was close to impossible,” she said. “If we did that, I would have to step down. There would not be a case I could participate in because I’ve had contact with so many people over such a long period of time.”

Conflicts of interest

Others, however, believe the judge faces serious conflicts of interest because of her past relationship with the for-profit probate industry.

“It’s a sensitive spot for a judge,” said Benjamin Sachs, an attorney who has practiced in probate court. “Who is the judge going to look out for? Does the judge have a history and experience representing people in need of protection or those who provide the services — the fiduciaries?”

Wolfe’s company has been a springboard for other probate professionals. Registered nurse Stephanie Conrardy, for instance, left Human Network Systems and started her own guardianship business.

The professional guardians now support each other in establishing a “community standard” for fees.

Conrardy, for example, submitted an affidavit supporting Wolfe’s fees in a case in which he charged an elderly woman $28,949 for 22 months of service, fees that another court appointee considered excessive. Probate court approved the fees. Wolfe, in turn, testified that Conrardy’s fees were reasonable in a 1998 Denver District Court trial.

Sometimes guardians hire their own firms to provide case management and other services. Charges to the wards can include travel time, secretarial time and conferring with other employees.

Stewart spelled out her concern about this practice in a case involving Conrardy and an elderly widow named Freda Cassidy. While finding that Conrardy “generally discharged her duties properly,” Stewart wrote:

“A difficult aspect of this case is Conrardy’s actions of hiring her company, Conrardy Case Management, to provide services to assist in her role as co-guardian. While to do so is not prohibited, it creates an obvious opportunity for fraud. The court recognizes the benefits and convenience to Conrardy of dealing only with her own company, but condensing these two jobs down to one eliminates the protections otherwise provided by having an independent guardian who ‘shops’ for care services in a competitive marketplace.”

Conrardy would not speak to the News for this or other stories in this series.

Guardianship fees soar

Typically, a guardian bills an incapacitated person’s estate an hourly rate for services plus for out-of-pocket expenses.

Costs can soar.

Conrardy charged $1,200 in fees to sell one ward’s car for $50. She testified in a Denver District Court trial that the cost went up because the ward didn’t have a proper title for the old Volkswagen.

Elderly wards may be delighted to receive flowers, cookies or a trip to a party with their guardian, not realizing they are paying by the hour for the privilege.

In one case, Wolfe and one of his employees took an elderly woman named Inez Tower to the theater. Her estate then was billed for the tickets and the time the professionals spent with her.

Hourly rates for professional guardians range from $50 to more than $100.

Attorney Debra Knapp at one point challenged Conrardy’s fees, contending Conrardy charged wards $75 an hour or more for services provided by her employees, who were paid $25 an hour. A judge let the fees stand.

“The rates in Denver for professional care management are over $100 an hour,” said attorney Sachs, who served as Knapp’s co-counsel in the case. “Is that justified when you can hire reliable services for a fraction of the cost?”

If the ward has a substantial bank account, the guardian may decide to spend more to improve care. But critics have questioned guardians’ motives when higher spending did not appear to be in a ward’s best interests.

Wolfe proposed new plans for an elderly man’s care from $2,100 a month to $13,051 a month after the size of his estate was realized. The new plan would have placed the incapacitated man back in his own home even though others involved in the case, including the official “court visitor,” felt he was better off where he was, in a group home.

“Costs often bear no relationship to the benefit to the individual,” attorney Sachs said.

Wards even end up paying for services they oppose.

Conrardy hired a private investigator to follow Lynda Scheidt, a woman in her 30s in Conrardy’s care. Scheidt’s estate paid the detective’s $4,600 fee, along with the fee of a lawyer Conrardy consulted about hiring the detective.

The service was necessary to protect Scheidt from her own behavior, Conrardy said. Scheidt challenged that. A judge agreed that the “investigation turned out badly and harmed” her, but he said Conrardy’s intent was to protect her ward.

Wards pay their opponents

When disputes with guardians occur, the wards can end up paying legal bills for both sides of the argument.

When Helen Arnold, a retired Denver teacher, objected to being a ward, she paid her own lawyer $3,269 to argue to change her guardianship and paid $4,643 to another lawyer who argued to continue it.

Another elderly woman, Milly Prewitt, was caught in the middle when a judge appointed a special representative to look into her case. That representative, called a guardian ad litem, objected to Wolfe’s fees as guardian and conservator. Prewitt was billed nearly $30,000 for the guardian ad litem to challenge Wolfe and $17,450 for attorneys to defend Wolfe.

“Cases start rocketing out of control when there’s a guardian, a conservator and a guardian ad litem, and everyone has lawyers,” attorney Smoke said.

If a guardian stops being paid, the system pits him against the person he is charged with protecting.

After paying Wolfe $50,000 for two year’s work as co-guardian, two elderly sisters ran out of available funds. Wolfe placed a lien on their home and began charging 8 percent interest on his remaining unpaid $8,000 bill.

The women’s nephew, Virginia physician David Duncan, objected, saying Wolfe billed for services that were “duplicative, unnecessary” or could have been provided by a nursing home.

“It is my contention that Human Network Systems continued to generate unnecessary charges in order to obtain an interest in the property,” Duncan wrote. The case was settled out of court.

When family disputes enter the picture, costs can go even higher.

The four children of Ruth and Michael Arden of Evergreen spent six months and $500,000 in attorneys’ fees to come up with a settlement in a dispute over their parents’ care and an estate worth several million dollars.

“It’s a total nightmare,” said daughter Lorraine Arden. “It’s worse than any soap opera you would ever want to see. I’m embarrassed to say that I’m part of this family.”

“When family members get sidewise with one another,” said Phil Parrott, who prosecuted Dice, “it’s very difficult for people to imagine that the professionals they use are depleting the very estate they are fighting over. Each time they take it to court, it costs even more. The emotions in these cases drive a lot of the depletion of the estate.”

Judge doesn’t check bills

Conservators and guardians file reports with probate court detailing the expenses being charged to wards of the court. But no one reviews the charges, unless they are challenged.

In fact, Stewart and Denver Probate Magistrate Sandra Franklin no longer sign forms saying they have “approved” fees.

“We started crossing out ‘approve’ and writing in ‘accept,’ ” Stewart said. “Boy, did that cause an uproar among the probate bar. Now they know they are not getting any approval from us, and many have changed the wording.

“People think I’m over here wearing a green eyeshade auditing accounts. I am not. I don’t have the budget or staff to do that. If you want to cheat, it would go right by me because I have no staff or budget to audit.”

Said Kitt of the Guardianship Alliance:

“There is so little monitoring, that’s why the old boys’ network works. Some of them operate right up to the edge where it’s not illegal, but, in my opinion, is unethical. There are no checks and balances in this system, so it happens. Nobody is watching, nobody is questioning what goes on.”

Prosecutors confirm that charging an incapacitated person high fees isn’t necessarily illegal.

“As criminal prosecutors, we are not in the business of valuing services,” said Parrott of the Denver District Attorney’s Office. Charging $100 a hour to go to the grocery store for a loaf of bread may be wrong but not criminal, he said.

“Where a service is provided, and there is no fraud in connection with the service, even if outrageously priced, we would have difficulty making a criminal case,” Parrott said.

No charges in criminal probe

The Denver District Attorney’s Office has, at times, launched investigations of professionals involved in probate cases, but with the exception of Dice, the probes have gone nowhere.

An investigation of Wolfe begun in 1998 resulted in no charges.

Stewart was interviewed for that investigation, and she wrote a Feb. 17, 1998, follow-up letter to investigator Ed Gruninger.

In it, she supported Wolfe while also distancing her court from him:

“I understand from our recent conversation that you have concluded Mr. Wolfe’s services are among the most expensive in the region; however, you have not found evidence of any fraudulent or criminal activity by him or his company.

“As you know, neither Mr. Wolfe nor his company occupies any special position vis-a-vis the Denver Probate Court. He is frequently nominated by a family member or a litigant in protective proceedings to serve as guardian, conservator, case manager or caregiver . . . Mr. Wolfe seems willing to accept even the most difficult cases and is often brought into cases where family emotions run high.”

Stewart told the investigator she understood that no criminal conduct by Wolfe had been uncovered but asked to be notified “if you change your conclusions about him or his company.”

Although he generally refused to discuss specifics, Wolfe defended his work, saying he provides the best care possible to his clients for fees that are fair and comparable to those charged by other professional guardians.

But he said that, over the past few years, he has stopped taking the most contentious cases because of the criticism and scrutiny they bring.

“You’re damned if you do or you don’t in contested family cases,” he said. “I came to the decision that bigger is not necessarily better. It was becoming too hard to manage a huge agency.”

He conceded, in an interview, that professional fees can mount up, especially in difficult cases.

“If I am involved in a case with a very difficult client and am fighting family members who are calling me all the time and kicking aides out of the home, don’t I have an obligation to respond? Sometimes the fees have been atrocious. In contentious cases, this is more likely to happen. But you can’t ignore events and not respond.”

Rights lost without ‘due process’

A ward of probate court stands to lose his rights along with his money.

“What nobody realizes about guardianship and conservatorship actions is what we do is potentially deprive elderly people of their life, their liberty and perhaps their property and do it often without due process of law,” attorney Campbell said.

A person whose only crime is to become old or incapacitated may not even know about a hearing in which control of his life is given to a court appointee.

After Hupp, the retired colonel, was hospitalized for his “episode,” his stepdaughter conferred with Wolfe, and the two of them went to probate court to have Hupp placed in their guardianship and involuntarily committed.

Soon Hupp found himself locked in an Alzheimer’s ward.

The stepdaughter, believing that Hupp would never be released, gave away his 20 suits, 15 jackets, five pairs of shoes and a number of shirts, coats and other items. Even his exercise bike was hauled off.

People can be declared incompetent based on tentative evaluations, or no evaluation at all.

Teacher Helen Arnold fell, fractured a vertebra and was given a mental evaluation a few days later in the hospital; she became a ward of the court. A later psychological evaluation found that “she could return to independent living with assistance.” But by then her guardian had sold her condominium.

Another woman, Clara Gelberg, refused to undergo any psychological evaluation and was declared incapacitated and made a ward. Before she finally agreed to an evaluation and was found competent, an apartment building she owned was sold by her conservator for $14 a square foot.

Professional guardian Wolfe believes guardianships are sometimes imposed on people who don’t need them.

“I think that sometimes attorneys, doctors, family members, banks or accountants believe that the appropriate way to bring some control and order in to the life of a dysfunctional individual is to persuade someone and the court that there needs to be a guardianship. But this is not always the case,” he said.

“Just because a person’s behavior is a problem — or we may not like how they act, or they do foolish things — does not mean they should have a guardianship,” Wolfe said. “The right to folly is an American right. It can be a fine line between that and the need for guardianship.”

Guardians wield enormous power

Guardians have enormous power over the people in their charge and can summarily impose life-altering decisions on them.

Professional guardian Conrardy moved Freda Cassidy from Myrick House elder-care home in Englewood to a locked unit of a nursing home on the pretext of taking her to lunch.

Earlier, Conrardy had indicated she wanted to relocate her ward, but Cassidy had made it clear she did not want to move.

“Freda believed they had promised never to do that,” said Dolly Stuart, manager of Myrick House, in an interview with the News. “We thought that was the end of it. Then, all of a sudden, Stephanie (Conrardy) showed up saying she was going to take Freda to lunch.

“They leave, and next thing you know, a truck with three guys shows up who move all of Freda’s stuff.”

Conrardy explained that she was concerned about Cassidy’s well-being because she had a bruise on her arm. But Stewart found that the timing of the move was prompted, in part, by Conrardy’s “personal agenda” and “hostilities” stemming from an unrelated legal battle involving another Myrick House resident.

The judge eventually ordered Cassidy moved back to Myrick House, where she still resides. Conrardy later resigned from the case, and Stewart made a point of saying that the guardian believed she was acting in Cassidy’s best interests.

Probate judges also have authority to issue “writs of assistance” that permit law enforcement officers to take wards into custody, usually to go to a hospital or facility for mental evaluation. Such writs are issued after guardians explain why they consider them necessary.

Wolfe, for example, got a writ of assistance after Todd Achter, a brain-injured man in his charge, allegedly threatened him and others. Wolfe arranged a dental appointment for Achter, and officers took him into custody at the dentist’s office and transported him to the state hospital in Pueblo.

“He set up a dentist appointment for me. . . I was in the waiting room when all of a sudden a bunch of cops came in and grabbed me,” Achter said in an interview.

Words of anguish fill files

The files of probate court are filled with the anguished words of wards who found themselves caught in the probate pit.

Wrote Helen Arnold:

“The ramifications of probate court are horrible to contemplate. . . . I have no money, no phone, cannot go to the dentist or doctor (I need both). I cannot even buy a much needed girdle or pair of shoes. . . . It would be simpler if I complied to the probate rules and were dead.”

Wrote Clara Gelberg:

“Your conservator is hazardous for my property and poisoning my daily life. I have no more tolerance for this torture and I refuse to be the conservator’s slave! Your honor, please help me to be me again.”

But the plea of Hupp, the one-time NATO comptroller, is perhaps the most indignant.

After Hupp recovered, his doctor wrote to Wolfe’s attorney that “since Mr. Hupp’s acute episode in April, there has been significant improvement in his condition. Mr. Hupp’s speech is lucid and articulate. He appears to be in good contact with reality.”

But Wolfe, who said he was concerned that Hupp was a threat to his wife, refused his request to be released from the locked Alzheimer’s facility. Instead, Wolfe hired an attorney to argue to keep Hupp restrained and under Wolfe’s guardianship.

Eventually, Hupp prevailed, but not without a price.

Wolfe billed Hupp’s estate $19,578 for his services as guardian. Wolfe’s attorney charged Hupp’s estate $13,419. Hupp’s own attorney charged the estate $9,445.

Wolfe, who also serving as conservator had control of Hupp’s assets, used the retired colonel’s savings account to pay $24,236 of the total. To pay the $17,883 still owing, Wolfe sought to force Hupp to sell his house. After Hupp protested, the case was settled out of court.

When Hupp got his chance to speak in court, he had plenty to say:

“I didn’t hire these lawyers,” he told Field Benton, Stewart’s predecessor as probate judge. “They hired themselves through you. I can’t control my debts. I used to. I was a respectable, law-abiding citizen until this all came about. . . .

“I want to respect my own life, and I want to get respect. But I get tired of being chewed up and spit out around here like I was nothing. I haven’t been protected by anybody . . . ”

“I don’t know what I am now. This court has reduced me to nothing.”

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