Who watches the guardians? County program helps those in need, but lacks accountability
Laura Girresch/Mike Fitzgerald
May 17, 2009
St. Clair County’s guardianship system, designed to protect the interests of people who are unable to handle their own affairs, is beset by poor record-keeping and little oversight and accountability, an examination by the Belleville News-Democrat found.
In one example, John F. Pawloski, a Belleville attorney, was accused of writing more than $50,000 worth of unexplained checks from a dead person’s estate and stealing $6,300 from a disabled adult while serving as St. Clair County’s public guardian.
A study by lawyers, judges and state legislators in 2001 also identified major problems with adult guardianship in Illinois. It found that training is not routinely provided for guardians, many public guardians are overburdened, and guardian performance is poorly monitored.
Since then, nothing has been done to address the problems, experts say.
“There’s no question we have a guardianship system, I think, that’s pretty broken,” said Zena Naiditch, president of Equip for Equality, a legal advocacy group for disabled people in Illinois.
The problems are expected to multiply as Baby Boomers reach retirement age, and millions more war veterans require help because of old age, substance abuse and mental health issues, such as post-traumatic stress disorder.
The newspaper found that guardians’ reports to the court often are months late, and that guardians sometimes go years without filing a report.
An analysis of 261 guardianship cases filed in 2005-07, the latest figures available, showed that in:
• 55 cases, or 21 percent, guardians never filed financial reports.
• 54 cases, or 21 percent, a case was closed and the guardian did not file a final report.
• 15 cases, or 6 percent, guardians missed court dates and failed to file reports for as many as four years.
No one knows how many adult guardianship cases the courts handle each year in St. Clair County. The computer system in the circuit clerk’s office doesn’t keep track, and once a guardian is assigned to a probate case, it’s listed as “closed,” even though it may be active for years.
St. Clair County Associate Judge Stephen Rice, who oversees the county’s guardianship cases, estimated there are close to 2,000 open adult guardianship cases.
State law leaves the setting of standards for financial reporting in guardianship cases up to the judges in each case.
Rice requires annual reports of guardians permanently appointed to cases, but doesn’t require financial reports in temporary guardianships. Often when there is no money in a case, Rice doesn’t require the guardian to file a final report, he said.
You don’t need a license or certification to be a guardian in Illinois.
A judge appoints a guardian in individual cases after someone, usually a doctor or relative, petitions the court seeking guardianship for a person who is mentally impaired and has no family member to care for them.
Guardians are responsible for paying bills, seeking medical care for their wards and handling their money.
Each county is supposed to have a public guardian, who is appointed by the governor, but St. Clair County currently doesn’t have one. It’s unclear how Pawloski came to be called the county’s public guardian.
The Illinois Office of the State Guardian handles cases for people who are chronically poor — those whose estates total less than $25,000 — but turns many cases away.
Sharon Mehrtens is a former public guardian and now is a professional guardian and estate administrator who handles dozens of cases in the metro-east.
There are few professional guardians in the metro-east, one reason most families and judges turn to Mehrtens.
“She’s just been around for a while,” said Debbi Cutright, administrator of Eldercare of Alton, a nursing home.
Some criticize Mehrtens’ work, saying she is poorly organized and at times unresponsive, but others say she provides a vital and necessary service and does a good job under difficult circumstances.
Mehrtens said she doesn’t make a lot of money doing this because many of her wards don’t have anything.
“I have a lot more cases that I don’t get paid on than ones that I do,” she said.
When asked why she is willing to work for free, Mehrtens said: “Well, it sounds corny, but there’s a need. The Office of the State Guardian doesn’t always take these cases, and somebody has to do it.” Guarding the guardians
There is little guardianship of guardians in Illinois, and this has caused problems in St. Clair County.
John Pawloski did not account for his use of money in any of the six guardianship cases he handled between 2004-07, court records show. No one questioned that fact until the Illinois Attorney Registration and Disciplinary Commission in November alleged in a civil complaint that he stole $6,300 from a ward while serving in the role as St. Clair County’s public guardian.
He has not been charged criminally.
After Rice demanded that Pawloski provide an accounting of the money in that and two other cases, Pawloski invoked his Fifth Amendment right against self-incrimination.
Pawloski’s lawyers appealed when Rice threatened to jail him. The case is pending in the Fifth District Appeals Court in Mount Vernon.
In one of his cases, Pawloski has agreed to gradually pay back more than $50,000 missing from an estate he handled. He paid the money to a man in a series of checks without explanation, according to court records.
Pawloski’s attorney, Jim Williams, said he has advised Pawloski not to speak to reporters.
County judges believe former Gov. Rod Blagojevich appointed Pawloski as St. Clair County’s public guardian, but a Blagojevich spokesman said there is no record of this happening. The Illinois Secretary of State’s Index Department, which keeps state government records, shows the county public guardian seat is vacant. A list of Illinois public guardians, posted online by the Office of the State Guardian, listed Pawloski as the county public guardian until October. It now shows a vacancy.
Rice, St. Clair County’s probate court judge, said he was surprised by how many guardianship cases exist, but he doesn’t have any complaints about his workload and thinks the system works well to protect wards.
He added that the “sheer number of these cases does present a challenge.”
Rice said he reviews at least 166 child and adult guardianship cases each month, which is the average number of new guardianship cases and existing ones in which annual reports are due. It doesn’t include contested cases that have frequent hearings or estate and child support cases.
Rice said he and the probate clerk are trying to weed out the cases where guardians’ reports are missing.
Mehrtens charges a flat $35 an hour for her services, which is paid out of the wards’ money she manages, while her lawyer, Brian McCarthy, charges $165 an hour to represent Mehrtens and prepare paperwork in her guardian and estate cases, according to court documents.
Mehrtens often files her annual reports to the court months late, according to copies of her reports reviewed by the News-Democrat. In her reports, Mehrtens simply lists a lump annual sum spent in general categories, such as food and rent, and guardian and legal services. Rice does not require detailed financial reports.
By contrast, Madison County’s public guardian, attorney Rene Bassett Butler, who charges $125 an hour to manage guardianship and estate cases, includes check registers and bank statements in her financial reports to the court. She also submits care plans for wards who aren’t in nursing homes.
“I view it as we have to,” Butler said.
Butler said she and two paralegal secretaries usually manage between five and 10 adult guardianship cases at a time. Most other cases in Madison County are assigned to private guardians or family members.
The Cook County Office of the Public Guardian is funded by the county and has a staff of 80 people, including lawyers, bookkeepers, case managers, property managers, asset collectors, and accountants. Public Guardian Robert Harris said most of the people working with wards’ money and assets are professionals who have at least a decade of experience doing so.
“I think because we have been in the game for so long, we have a certain sophistication to it,” he said. “It is a large county-funded office, and we’ve been strong advocates of it. That’s been one reason we’ve been able to have checks and balances.”
If a judge appoints a guardian in St. Clair County who is not a family member, it’s usually Mehrtens.
A former real estate agent and insurance broker, Mehrtens served as chairman of the county Republican Party in the early 1990s. In 1995, former Gov. Jim Edgar appointed her as St. Clair County’s public guardian, a position she held until 1997.
Today, Mehrtens, 68, runs a private guardianship and estate-closing business from her home in Millstadt. She serves as guardian in about 50 cases and said she has handled as many as 70 at a time — considered by some to be an unusually high number.
Mehrtens also serves as a U.S. Department of Veterans Affairs fiduciary — the term used for a financial guardian in the federal system — for 14 metro-east veterans disabled by mental illness or substance abuse.
Health-care providers or elder-abuse investigators usually seek to have Mehrtens appointed in guardianship cases. They say they go to her first because the county doesn’t have a public guardian, and she has the experience.
“Basically, she’s the only one around,” said Duane Pingsterhaus, a supervisor for the Southwestern Illinois Visiting Nurse Association.
Betty Fadden described Mehrtens as a “godsend” for the help she has provided her son, Gerald Fadden, 51, a former Marine who has struggled with schizophrenia for three decades.
Mehrtens has always been available for phone calls, Fadden said, and even drove Gerald to his mother’s home for Thanksgiving last year.
“The woman deserves sainthood,” she said. “She cares about the veterans.”
She also has her critics.
Complaints about Mehrtens to the court from wards and their families allege that she’s late in paying bills or doesn’t pay them at all; vague or lax in her record-keeping; doesn’t return phone calls; tries to keep wards from their families, and is quick to sell their homes and move wards into nursing homes, according to court records.
In one case, a judge removed Mehrtens in 2000 as the guardian of Ruth Metzler, a disabled adult, on complaints from the woman’s dentist and a relative.
St. Louis dentist Dr. Alan Pang wrote to the judge that Mehrtens’ rudeness and refusal to pay for dental work she hadn’t authorized kept Metzler from getting the care she needed, particularly after a fall that required emergency work.
“We will not wait eight months for payment nor will we be spoken to the way Mrs. Mehrtens spoke to us,” Pang stated.
Susan Linhardt, Metzler’s relative who ultimately took over guardianship of the woman, told the judge that Mehrtens inaccurately reported having paid in full Metzler’s nursing home bills, and overpaid herself funds the judge hadn’t approved, according to court documents.
Mehrtens said she accidentally overpaid herself about $300, and she disputed that she owed the nursing home money, according to ourt documents.
The parties agreed to settle the case. A judge ordered Mehrtens to repay a total of $12,400 to the nursing home, to Metzler’s estate and to Linhardt for expenses incurred in challenging Mehrtens’ actions. Linhardt agreed to drop her charges of misconduct against Mehrtens.
Mehrtens declined to comment about Metzler’s case specifically, but said relatives of her indigent wards sometimes take them to health-care providers who are not covered by public aid.
“If those people don’t have the funds to pay those bills, and public aid doesn’t pay them, I don’t know where the money is to come from,” she said.
In response to complaints that Mehrtens is quick to move wards into nursing homes, she acknowledged that she sometimes has to sell homes quickly to get money to pay her wards’ bills.
When asked about complaints that she doesn’t return phone calls, she said some wards and their families expect her to be available around the clock, and that some call late at night just to find out how much money they have. She gets calls from intoxicated wards almost every Saturday night, she said.
“Yeah, sometimes, if it’s not during business hours, I’m hard to get a hold of, but if people leave messages, I return their calls,” she said.
Pingsterhaus, of the Visiting Nurse Association, said his agency has investigated complaints against Mehrtens in guardianship cases five times in the past three or four years, and all were unfounded.
Teva Shirley, a program manager for the association’s Services for Seniors program, pointed out that the wards who complain about Mehrtens don’t necessarily make reliable witnesses.
“The judge is saying they have impaired capacity,” she said.
Oversight is lacking
Critics say that without proper oversight of guardians, mismanagement and fraud can increase.
The VA’s Office of the Inspector General investigated 96 cases of fraud involving fiduciaries between 1998-2005 across the country, resulting in 74 arrests and $2.5 million in fines, restitution and recoveries.
The program’s staff “did not take necessary actions to adequately protect beneficiary income and estates to reduce the risk of misuse or theft,” according to a June 2006 report issued by the office. Based on sample results, auditors found that an estimated $435 million in benefits payments and the estates of nearly 9,000 veterans nationwide and their survivors were at risk.
While there is no Illinois law limiting how much guardians can charge for their services, the VA limits fees charged by a fiduciary to no more than 4 percent of a ward’s monthly federal income.
The federal government leaves much of the oversight of fiduciaries to the state courts, which already are overburdened and underfunded, said Terry Hammond, executive director of the National Guardianship Association.
“If states aren’t going to give courts the resources they need,” he said, “it should be clearly stated in the law that once a guardian is appointed, everyone washes their hands of that person’s life, and they’re on their own.”
Guardian holds veterans fate in her hands every day
May 17, 2009
BELLEVILLE — Archie Sorth can’t buy food or go to the doctor without asking for money from his court-appointed guardian, Sharon Mehrtens.
Sorth, 76, wakes before 6 a.m. most days in his downtown Belleville apartment above the Oregon Trail Roasting Co. coffee shop. He helps his landlady, owner Andrea Cox, by pulling chairs off tabletops and sweeping the sidewalk.
A former steamfitter and welder and a U.S. Army veteran, Sorth walks to Belleville pantries for food, Cox said, and does odd jobs for small amounts of money.
Mehrtens declined to discuss Sorth’s case specifically, citing confidentiality. But, when speaking generally about her cases, she said, “When you have people with mental illness, you can’t hand them cash.”
Sorth slept on an old mattress on the floor beneath a leaky roof and sort of came with the building when Cox bought it in 2007.
Cox said that after she submitted a complaint to the Southwestern Illinois Visiting Nurse Association, Mehrtens brought him a bed.
She said Sorth’s teeth were rotting, and that needed dental work was done only after calls and e-mails to Mehrtens.
Cox said she believes guardians should care for their wards the way parents do their children.
“Because Archie’s 76, people don’t care,” she said. “The point is, whoever is the guardian needs to do the job. The state said Archie isn’t capable of taking care of himself.”
Mehrtens, who handles the roughly $7,000 Sorth gets each year in interest income and his “old age pension,” charges $35 an hour to open his mail, make and receive phone calls and pay his bills. His $430 per month rent is often late, Cox said, adding Sorth’s utility bills often are past due, resulting in late fees.
Sorth said he has a card with Mehrtens’ phone number on it, but he doesn’t have a telephone and doesn’t want to call her anyway because he’s afraid she’ll charge him for the call.
Sorth has been under the guardianship of Mehrtens, former St. Clair County’s public guardian and now a professional guardian and estate administrator, since 1995. A judge appointed her to receive Sorth’s veterans benefits check and manage his finances and personal care after a U.S. Department of Veterans Affairs doctor determined he was mentally ill, and a county probate judge deemed him incapable of handling his own affairs.
Mehrtens hasn’t communicated with the court about Sorth for three years other than to seek payment of fees for herself and her attorney, which total an average of $2,000 a year, and to tell the judge that she needed to move some of his belongings into storage because he had too much junk, according to court documents.
Her previous financial reports to the court often were vague and a month or more late.
Mehrtens said she sometimes files reports late because even though the current judge requires annual reports, previous judges had her on a three-year filing schedule, and she forgets when a report is due until the court sends her a late notice.
Sorth hasn’t been the ideal ward.
According to a 2002 News-Democrat story, he ran from Mehrtens and police when a Belleville landlord evicted him from his apartment for hoarding too much trash. Mehrtens told him he would have to go to an assisted-living center, so he lived on the run for 16 months and refused to contact her or collect his Social Security checks.
Sorth’s brother, Dan Sorth, of St. Louis, said Archie Sorth has always had trouble getting along with people. Dan Sorth said he hasn’t talked to his brother in years. He and their other brother worked to have Mehrtens appointed guardian because Archie frequently gave his property away.
When Mehrtens put Archie Sorth’s property in Bourbon, Mo., up for auction, he tried to burn it down, said Dan Sorth’s wife, Martha.
Sorth spends most mornings at Oregon Trail, where he draws detailed cartoons, many of which portray a love story. He spends his evenings in his apartment, where he reads, listens to the radio, and roots through his massive clutter for forgotten treasures.
Sorth said he doesn’t want Mehrtens to be his guardian anymore, but he hasn’t complained to a judge because he doesn’t think it would do any good.
“She’s permanent, for life,” he said.
Many wards can’t win independence
Mike Fitzgerald/Laura Girresch
May 17, 2009
Heather Wade-Moore wants to regain control of her life.
A civilian psychiatrist has certified that the 50-year-old U.S. Army veteran from East St. Louis is competent to handle her own financial affairs after years of battling mental illness and drug addiction.
But now Wade-Moore feels she has another battle to wage: Independence from a fiduciary and guardian appointed by the U.S. Department of Veterans Affairs and St. Clair County probate court.
Every month, Wade-Moore receives $3,600 in the form of two payments: a VA disability payment and a Social Security check. The payments go directly to her fiduciary and guardian, Sharon Mehrtens.
Mehrtens pays Wade-Moore’s bills and gives her a monthly allowance of $800.
“She’s not giving me enough money to take care of my home, my family or myself,” complained Wade-Moore, who along with husband, John, is trying to make repairs to their aging home. “I need paint. I need a new carpet.”
Mehrtens charges $35 per hour to open letters, pay bills, and make or answer phone calls from Wade-Moore. In the six months ending Dec. 31, Mehrtens charged her more than $1,000 in fees, St. Clair County probate court records show.
John Moore said he feels his wife can handle her own affairs, and that it makes no sense to pay someone to open mail, pay bills and make phone calls.
“I can’t see why she needs someone to tell her when she can buy some clothes, or make repairs to the house, or anything like that,” he said.
Mehrtens is appointed to most of the guardian cases in St. Clair County not handled by relatives. She declined to comment about Wade-Moore’s case specifically.
“When someone is determined to be incompetent, they don’t like it, OK?” she said. “And family members don’t like it, either.
Because of the process, you’ve got natural enemies right off the bat. And they are not always true. There’s lots of things they don’t face reality about.”
Wade-Moore said she contacted the VA’s regional office in Chicago to see whether she could get rid of her guardian, but got no help. A VA spokesman declined to comment on her case.
Wade-Moore would probably need an attorney to regain her independence, but she said she can’t afford to hire one, and believes she might have to pay the fees Mehrtens would charge if Wade-Moore lost the ensuing legal battle.
“I’ve been trying to get a lawyer but no lawyer has been willing to take my case,” Wade-Moore said.
It’s not easy for people under the care of guardians to regain their independence.
People are assigned guardians when a judge determines they cannot manage their own financial affairs, usually because of mental illness or drug problems. So if things go wrong with a guardian, navigating the legal system to find a new one, or to achieve independence, can be nearly impossible.
Mehrtens said wards who question her practices have the right to complain to a judge, and added, “What these people perceive and what is reality aren’t always the same.”
St. Clair County Circuit Judge Stephen Rice said that if a ward wants to challenge a guardianship or a particular issue, such as the fees they are charged, and can’t afford an attorney, he’ll try to find one who will work for little or no pay. All they need to do is file a pleading in the circuit clerk’s office.
Most wards don’t attend hearings in their own cases. Many can’t drive and don’t know when their court dates are. They usually don’t understand the legal system or what happens during a hearing, observers of the system say.
Once a judge appoints a guardian, the ward’s personal and financial well-being are considered to be under the guardian’s care permanently — sometimes only to be reviewed on paper by a judge once a year, or sometimes longer.
Family members of wards also find it extremely difficult to free loved ones from guardianships, with or without the aid of attorneys.
When Irene Birchett’s daughter, who served as her guardian, died last year, a judge appointed Mehrtens to take over guardianship for Birchett.
Birchett’s son, Michael Leach, 47, of Lenzburg, didn’t realize Mehrtens had been appointed until after it had occurred.
It took Leach nearly three months to get court approval to take over his mother’s guardianship. By then, his mother had a stack of unpaid nursing home and pharmacy bills and a nearly lapsed life insurance policy, he said.
While Mehrtens would not comment specifically about Birchett’s case, she said that the process of obtaining public aid in cases where no money is available sometimes delays the payment process.
They got along well
Frank Theis of Belleville said he was happy with Mehrtens’ five-year guardianship of his sister, a paranoid schizophrenic who died last year of lung cancer at age 57.
Theis said his sister, Diana Theis, would blow her $800 monthly Social Security check before paying her bills, including rent, which led to her being evicted. Family members tried to help her manage her affairs, but she thought they were trying to take her money.
“It got to be a hassle and a problem for our family,” said Frank Theis, 61.
Through a doctor’s recommendation, the family found Mehrtens, and a judge appointed her as Diana’s guardian in 2004. Frank Theis said Mehrtens always paid his sister’s bills and took her grocery shopping and to doctor appointments.
Theis also said that toward the end of her life, his sister got along well with Mehrtens.
“That’s what was amazing, because she (Diana) couldn’t get along with anybody,” he said.
Missing for months
Eugene Armstrong said he and his sister were unable for months to locate their brother, William “Frank” Armstrong, an East St. Louis man who had been placed under the guardianship of Belleville attorney John Pawloski. Armstrong had been jailed several times for stealing swigs of liquor from bottles while walking through stores.
Pawloski, who has been accused of misconduct by state regulators in four other probate cases, never returned the family’s calls, Armstrong said.
They finally learned from a VA advocate that their brother, a Navy veteran, was at a shelter care home nearly three hours away in Hutsonville, Ill. It is not clear how he got there.
Pawloski’s attorney, Jim Williams, said he has advised Pawloski not to speak to reporters.
Charging for outings
The late Jim Lane, 52, was a U.S. Army veteran who suffered from schizophrenia. His mother, Nioma Davidson, said she spent the final months of her son’s life locked in battle with Mehrtens, his fiduciary and guardian, over the fees Mehrtens had charged his estate.
Mehrtens charged Lane $105 for three hours work, for either herself or her daughter, Mindy, to deliver as little as $20 in cash to Lane’s trailer home in Belleville, court records show. On another occasion, Mehrtens charged $105 to take Lane to the supermarket.
She charged $4,383 in fees for the period Sept. 1, 2007, to Aug. 10, 2008, according to the final report Mehrtens filed with the court.
She finally convinced a probate judge to appoint a lawyer, P. Michael Read of Belleville, who charged more than $7,800 over three years seeking a reduction of Mehrtens’ fees and her removal as Lane’s financial guardian.
Mehrtens defended the expenses she submitted and said the computer billing program she used for submitting invoices did not fully explain all that she did for Lane.
“Jim never went to one grocery store,” she said. “That was his outing for the day.”
James Bauza asked a St. Clair County judge in 2007 to audit his guardian, Pawloski, because Bauza, 66, of Swansea, said he didn’t know what Pawloski was doing with his money, according to court documents.
A bank statement in Bauza’s court file showed that two days after a judge appointed Pawloski to be Bauza’s temporary guardian, someone withdrew $1,140 from Bauza’s account in three separate ATM transactions. Bauza, in a note on the bank statement, questioned the charges.
Pawloski never filed in court an accounting of his use of Bauza’s funds. In 2008, a judge replaced Pawloski with another guardian.
Alton Mental Health representatives, in a letter to Pawloski filed with the court, said the health center’s treatment team had been unable to contact Pawloski, thereby delaying needed medical care for Bauza. They asked Pawloski to send regular amounts of money to Bauza and account for his use of funds.
Bauza, in an undated letter to the court, wrote: “You appointed John Pawloski as my guardian. He never once came to see me in Alton. Not once did he let my phone calls go through.”
Group recommends changes to fix a ‘broken system’
Laura Girresch/Mike Fitzgerald
May 17, 2009
Eight years ago, a group of Illinois guardianship lawyers, judges and legislators published a study calling for reform for what they called a “broken system.”
Since then, nothing’s been done, and experts say as our population ages, the problems will get worse.
• Expanding the investigative role of guardians ad litem — who are people, usually lawyers, who assess whether a person needs a permanent guardian.
• Employing case investigators to keep tabs on guardians and their wards.
• Establishing a statewide monitoring system.
• Requiring guardians to file an initial care plan for their wards.
• Creating a certification program for private guardians.
• Educating the public about alternatives to guardianship.
• Creating a computer system to notify the courts when a guardian is late in filings of status reports and other requirements.
The National Guardianship Association is pushing for closer examination of state and local laws. Executive Director Terry Hammond said under the current system, states require local courts to appoint guardians but don’t give them the resources they need to monitor the cases.
“I think it’s irresponsible …” he said.
Craig Hubbard, a St. Clair County Board member and a former public guardian, said he thinks the job should be a full-time county position so that guardians aren’t relying solely on wards to get paid.
Hubbard said that when he was the public guardian, because so many wards didn’t have assets, he often worked for free and had to rely on his financial planning business for income.
Turning guardianship into a county service would ensure that guardians have the time to do the job right and they would be paid by taxpayers, rather than draining their wards’ assets.
Critics say that if legislators cared, they would write protections into state law.
Eight states require some level of certification for private guardians who aren’t family members, but not Illinois.
“We license people who do people’s hair and nails but we don’t license guardians — people controlling lives with no oversight system, no qualifications, no reporting, no nothing, no one to complain to,” said Zena Naiditch, president and chief executive officer of Equip for Equality, a legal advocate for disabled people.
“If a person who does nails messes up, there’s a place you can complain because that person’s licensed,” she said.
Arizona was the first state to regulate court-appointed guardians and conservators, said Lisa M. Price, president of the Arizona Fiduciaries Association. The state requires certification for all guardians who charge fees for their services.
Arizona’s certification process also has a system for submitting complaints to be heard by the state Supreme Court. The program largely is supported by certification and filing fees.
Fred Floreth who serves as public guardian in Montgomery County, Ill., is secretary for the Center For Guardianship Certification, which certifies guardians in various states. He is pushing for the passage of a bill in the Illinois Legislature that would require certification for public guardians in Illinois.
But Floreth stopped short of saying Illinois should certify private guardians as well.
“In Illinois, the history for any reform is to start small and try to build on that,” he said.