RMN probate series, part 2

Costly litigation
Ward’s estate the casualty in court battle
Lou Kilzer and Sue Lindsay, News Staff Writers
April 9, 2001
The Rocky Mountain News
http://www.rockymountainnews.com/drmn/local/article/0,1299,DRMN_15_262637,00.html
Milly Prewitt never received the little white teddy bear Marvin Smith bought her for Valentine’s Day.

For almost two years, Smith had come once or twice a week to visit the 87-year-old in her studio apartment at Gardens at St. Elizabeth retirement home in north Denver.

He enjoyed bringing small gifts to the childless divorcee. She grew so excited whenever he showed up, and she had such a big smile.

But no smile waited on this cold day in February of this year.

The receptionist at St. Elizabeth delivered the news. Milly had just died.

Marvin Smith broke into tears.

Smith was a “court friend” representing probate court, which had made Milly a ward nine years earlier. He made the frequent visits on his own time, as a volunteer.

Milly had a paid guardian as well, a professional appointed by the court who oversaw her affairs and charged her estate for the service. At one point, she also had a guardian ad litem, another court appointee whom she also paid to look out for her interests.

Those guardians billed her more than $48,000 for arguing over her care.

Milly Prewitt was born on Oct. 9, 1913, and grew up a perfectionist, proud of her grades in school and later of her work with the Bureau of Reclamation.

She survived breast cancer and handled a host of maladies of the elderly. But on April 6, 1992, she suffered a major stroke to the left side of her brain.

When psychologist Kathryn Kaye came to evaluate Milly, she found a well-groomed woman who looked much younger than her age. The problem was speech.

Milly’s voice was “broken and halting. She often struggled to find words, and as she became more emotionally aroused, the quality of her speech and language deteriorated significantly,” Kaye wrote.

The stroke also had affected Milly’s reasoning skills. She was unable to draw a clock. She could not understand the question, “Why do we wash clothes?” But other similar questions gave her no problem.

Milly grew frustrated when she couldn’t solve relatively easy math problems. “I handled such big money,” she said. “Why am I so crazy?”

Depressed, she commented, “I believe we’re put here for some reason, and I can’t find where I’m supposed to be now.”

A doctor determined she couldn’t care for herself.

Milly had a brother, Frank Fields. But he was sick himself, and he lived in Texas. There was no way he could manage Milly’s affairs.

So Frank turned to Gordon Wolfe, a Denver-based professional guardian.

On April 24, 1992, Probate Court Judge Field Benton appointed Wolfe as Milly’s guardian and conservator. Ten days later, the judge named F. Wilton Berry as guardian ad litem, a position that is to probate court what a second opinion is to medicine.

Before long, Wolfe and Berry were at each other’s throats.

Wolfe presented a plan to spend $1,080 a month for his services in Milly’s case. Berry objected to the cost. Wolfe got the plan approved by the court. Berry complained that he had been kept out of the loop.

Milly said Berry was “the one who has caused all of my problems,” according an affidavit by Stephanie Conrardy, a former Wolfe employee, in support of Wolfe’s practices. Berry told the court that Milly felt “sick and trapped” by Wolfe.

For her part, Milly complained bitterly about the process.

“It’s so disgusting and terrible,” she said.

The fees Wolfe charged to Milly’s estate became a particular point of contention.

Berry questioned charges by Wolfe’s company, Human Network Systems: $612 to arrange two dental appointments; $196, $192 and $147 to take Milly to three doctor appointments, and many others charges that had been accepted by the court.

When challenged, Wolfe acknowledged errors in billing for the dental appointments and returned $288. He explained he had to send a senior staffer with Milly to doctor’s visits to help her communicate.

Nonetheless, in the first 22 months that Wolfe was on the case, he charged Milly $28,949 for his services. This was in addition to what she was paying Treemont Center for room, board and medical assistance.

Berry finally recommended that Wolfe be removed from the case, arguing that as both guardian and conservator Wolfe had a conflict of interest.

“Mr. Wolfe, as guardian, derives personal financial benefits from using his own employees as he has a profit margin, … ” he wrote in a report to the court.

Wolfe fought back.

As conservator, he controlled Milly’s bank account. He stopped paying the bill’s Berry submitted for his own work as guardian ad litem.

Berry had “inappropriately expended considerable time and effort in investigating the activities and fees of HNS,” Wolfe’s company, even though the spending plan had been approved by the court, Wolfe said.

Wolfe also supplied the court with an affidavit from former Denver Probate Court Judge James Wade saying that he “sees no inherent conflict between the same person being appointed and acting as guardian and conservator.” Sometimes, Wade said, the arrangement is “in the interests of efficiency and convenience.”

Berry sought another lawyer, Laura Vogelgesang, to help argue the case. She became co-guardian ad litem.

At a 1995 hearing, the gloves came off.

Vogelgesang told the court that “Mr. Wolfe appears to view Mrs. Prewitt’s assets not only as a source of funds for keeping his business going but also as a war chest to fight with the guardians ad litem who have been appointed by this court.”

But Benton said any financial concerns were not significant enough to warrant replacing Wolfe.

In open court Benton said he was unsure how Milly would react to a change of guardians and was “very leery about the prospect of rocking the boat.”

“It’s just too risky.”

The guardian ad litem was not satisfied and asked the judge to reconsider. In additional filings, Vogelgesang wrote:

“(T)his court is aware of Mr. Wolfe’s self-dealing, or his opportunity for and predilection for self-dealing, in each case in which Mr. Wolfe is appointed by this court; and the court nonetheless continues to appoint Mr. Wolfe as a fiduciary and refused, in this case, to suspend Mr. Wolfe’s authority … .”

She accused the court of “bias,” which “is not explainable other than by explanations which are unacceptable to this guardian ad litems’ view of the court’s obligation toward those who cannot fend for themselves.”

Throughout the proceedings Wolfe defended his fees and practices as fair and proper. Benton, in a recent interview with the News said he did not remember the case.

In May 1995, Benton retired and took senior status. Jean Stewart was appointed probate judge.

But her new role only fueled the growing sense of conspiracy that was making its way into the guardian ad litem’s motions.

Berry discovered that, before taking the judgeship, Stewart had been Wolfe’s lawyer in another case where family members had fought to remove Wolfe as guardian of their mother.

Berry objected to Stewart’s involvement in the Prewitt case, and she agreed to step aside. A special judge, Federico Alvarez, took up the case and refused to change Benton’s ruling.

He acknowledged, in a written decision, that “an inherent conflict of interest may exist where a party acts in a dual role as a conservator and guardian for an incapacitated person.”

“However, the court notes that the cost to litigate the matter thus far … consumed a significant portion of Prewitt’s modest savings …. (T)he court finds that additional litigation of the issue of conflict of interest is not in Prewitt’s best interest.”

The guardians ad litem stepped out of the case. Wolfe stayed on.

The litigation had been costly. Wolfe’s legal bill came to $17,450. The guardians ad litem billed her some $30,974.

After the court battle, the rest of Milly’s $160,000 nest egg went quickly. By December 1997 she could no longer afford to stay at Treemont Center. Wolfe wrote that he feared Milly would take it hard when told that she had to move to a less-expensive facility.

Indeed, she became “extremely upset,” Wolfe reported. But he told the court that “Mrs. Prewitt has historically always been a negative and pessimistic individual.”

That was not the Milly known to Helen Martinez, the receptionist at the Gardens at St. Elizabeth, the assisted living home to which Milly was relocated.

“Everybody loved Milly,” Martinez said in an interview. “Her mind was sharp. Her only problem was speech.”

Nor did Milly seem negative to Smith, the 78-year-old “court friend” with the teddy bear.

“She was always so pleasant with me,” Smith told the News. “She always tried her best.”

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