THE PRIVATE GUARDIANSHIP INDUSTRY
Who watches the watchdog for the elderly?
February 27, 1994
April Witt
The Miami Herald
http://www.miamiherald.com/news/special-reports/v-fullstory/story/447912.html
Janice Mantia charged into elderly Bibianna Bach’s life like a savior.

Mantia, then a state-paid watchdog for elderly abuse, went to court in 1992 to win control of Bach’s finances, saying the childless Tamarac widow was too ill to pay her own bills.

But 17 months after Mantia entered Bach’s life — and began paying herself $35 an hour with the old woman’s money — the 78-year-old widow died broke, malnourished and bedeviled by bed sores.

“She was 5-foot-2 and 66 pounds,” said Dr. Raul Vila of the Broward Medical Examiner’s Office, who performed the autopsy in August. “She looked like she came from a death camp.”

The state Department of Health and Rehabilitative Services, after investigating Mantia, alleged that she neglected Bach and exploited three wards of the private guardianship business she began while moonlighting from her full-time state job. Mantia is challenging the findings through a state appeals process.

“I don’t feel I’ve done anything wrong,” said Mantia, 51. “I happen to care a lot about these people. They are important to me. They are important to my life, and not for the income.”

Court records show that Mantia gave questionable care to some wards and charged people — who had lost their legal right to contest her bills — thousands of dollars for services they could have bought at less cost elsewhere.

Records also show that the court system supposed to protect vulnerable wards and to police South Florida’s burgeoning private guardianship industry has failed in some of Mantia’s cases:

* One of Mantia’s wards required surgery because she left one or more tampons inserted weeks after HRS workers warned Mantia that the woman had a strange odor and discharge and needed a gynecological exam.

* Another ward, an aging Fort Lauderdale woman, has been trapped in a Margate retirement home, stripped of her legal rights and cut off from her money for more than two years — even though she is now sober and sane and should have most of her rights restored, according to her doctor and experts who have evaluated her for the court.

* Mantia’s company billed a Sunrise family three times for the same court hearing and charged a retarded man $210 to take him fishing. She charged a Margate woman $122.50 to visit and clean her refrigerator, and charged two elderly wards a total of $900 for staying with them 15 hours during Hurricane Andrew, court records show.

While Mantia denies neglecting or financially exploiting her wards, she acknowledges “sloppy bookkeeping” and concedes she does not have documentation to prove she has worked all the hours for which she has billed her wards.

Broward Circuit Court Judge W. Clayton Johnson, who signed some court orders authorizing Mantia to charge wards questionable fees, said last week that he would not have if he had read her bills more carefully.

“I have to try to glance at them,” said Johnson, who heads the court’s probate division, where two full-time judges, a part-time judge and two general masters are responsible for monitoring bills in about 5,000 open guardianship cases. “We do not have enough help to watch this stuff. We have to presume people are honest.”

But last year, when one family complained that Mantia was withdrawing too much from their relatives’ accounts, Johnson said the complaints were unwarranted — and slapped the complainers with a court order barring them from criticizing Mantia.

Mantia was fired from her state job in December, after her employers said it was a conflict of interest to serve as both a guardian and a government watchdog. At one point, someone called Mantia’s state-financed office to complain about Adult Guardianship Inc. — only to find that Mantia, the woman answering the phone, ran the company, state officials said.

Mantia, who serves as a guardian in Dade, Broward and Palm Beach counties, denies there was any conflict. She appealed her firing, and the state has since agreed to let her resign retroactively.

“I can look back now and say, gee, I made mistakes,” Mantia said.

“The funny thing is, there are many other guardians who charge the same things I do for the same things I charge for.” For old or otherwise frail people who can no longer manage their lives on their own, the state has established a solution. A friend, relative, lawyer, accountant or even a perfect stranger can petition a court to become their guardian and have them declared incompetent to handle all or some of their personal affairs.

Guardians have the right, with court approval, to pay themselves and their lawyers from their wards’ assets. State law does not specify how much guardians can charge. That leaves judges in each county to establish and enforce billing guidelines.

Private guardianships are a fast-growing industry in South Florida, because the region has a large elderly population and the government social service agencies that are supposed to help them are overwhelmed. A growing number of people take on multiple guardianships as a full-time job.

They provide a desperately needed service, helping their wards pay bills, arrange government benefits and receive needed medical care, supporters say.

“What do you do when the family is up north and they say, ‘To hell with Daddy. Wait ’til he croaks, and then I’ll come down and get the money then,’ ” Judge Johnson said. “A lot of these people have been abandoned by their families.”

Under state law, guardians are not required to have a state license, or even a high school degree. They just have to attend eight hours of training within one year of starting their first guardianship.

“Almost anyone can be a guardian and have enormous power over someone else’s life,” said Emilio Maicas, HRS program administrator of Aging and Adult Services in Broward. “There is no licensing requirement, little monitoring or oversight. The potential for abuse is tremendous.”

Mantia came to the job of guardian with one impressive credential. She was the only paid staff member of the Long-Term Care Ombudsman Council in Broward, a patient-rights group that investigates complaints of mistreatment in facilities like nursing homes.

Mantia’s company, Adult Guardianship Inc., was founded in July 1992, according to state records. Mantia asked an elderly neighbor, Dorothy Collins of Coconut Creek, to work for her, Collins said.

Less than a year later, Collins quit the company because she was concerned that Mantia was billing wards for more hours of service than they had received — an allegation Mantia denied.

“I like the concept of guardianships,” Collins, 71, said last week. “It’s beautiful. It’s when you put in for time you don’t deserve to get paid for, that’s bad. I didn’t want any part of it, so I left.”

Jennie Lee Waln was a grande dame in decline in the fall of 1991 when she became Mantia’s first ward.

Her husband had committed suicide. She had fallen and broken both hips. She drank vodka to deaden the paralyzing pain, she said. And she entertained herself with late-night shopping sprees on the television home shopping networks.

“I did wrong,” said Waln, 69, who once lived off the Intracoastal Waterway in Fort Lauderdale and still co-owns the building housing the posh Left Bank Restaurant. “I’m a human being. We do make mistakes. I was by myself, and I got scared.”

Waln’s accountant and Mantia — whom Waln said she did not know — went to court to have her declared incapacitated and stripped of her legal rights. A judge appointed Waln’s accountant guardian of her property and named Mantia guardian of everything else, giving her power to decide how and where Waln lived. Waln’s furniture and car were sold, and Mantia moved her into Margate Manor retirement home.

In the more than two years since she became a ward, Waln has been completely cut off from her money, not allowed to cash even a $5 check, she said.

Mantia has billed her bank account more than $10,000 — including hundreds for visiting Waln and delivering cans of Fancy Feast cat food for her pet, Pierre. On Feb. 22 and 23 alone, Mantia charged Waln $140 to deliver cat food.

Mantia defends the bills, saying, “There were times we had to go to four grocery stores to get the one kind of cat food that Pierre would eat.”

In 1992, Waln asked lawyer Russell E. Carlisle to help her fight to have her rights restored and her guardians dismissed, she said.

A court-appointed doctor examined Waln in June of 1992 and determined that she was not mentally ill and all her rights should be restored except the right to drive, court records show. Other experts testified at a hearing that her rights should be

restored gradually, according to notes in her court files. A general master recommended that some of Waln’s rights be restored immediately.

Waln’s regular physician, Dr. Ed Mease of Margate, a family practitioner, last week mailed a form to Mantia indicating that Waln is well and does not need the services of a guardian.

Mantia has fought termination of the guardianship, records show. She said Waln needs a guardian because she might abuse alcohol again if left on her own.

“I’d hate to see her end up in a body bag,” Mantia said. “That would just be a shame.”

Waln insists she is ready to take control of her life again.

“My heavenly days, it does sound preposterous,” Waln said. “I wouldn’t believe it if it hadn’t happened to me.”

“I’m more or less incarcerated, I guess you’d call it.”

Pearl Fechter and her children live together in Sunrise. They have big, complicated problems, a large trust fund and, since early last year, Mantia as their guardian.

Fechter, who has Alzheimer’s disease, and her two adult children, who are mentally retarded, were billed more than $35,000 in 1993 by Mantia and her attorney, court records show.

Sometimes the family paid Mantia three times for the same service, according to court records. For one approximately four- hour-long court hearing in May, Mantia’s company billed 12 hours at $30 an hour and triple mileage, court records show. Mantia

now says she spent the entire day of the hearing with the family, though she acknowledges that’s not what her bill reflects.

In June, Fechter’s daughter, Stephanie Perlmutter, 52, required surgery because she left one or more tampons inserted weeks after HRS workers warned Mantia that Perlmutter had a strange odor and discharge and needed a gynecological exam, according to state and police records.

Mantia blames Perlmutter’s incapacitated mother for the delay, saying she didn’t want her daughter examined. But when Mantia’s company sought guardianship of the family, she said it was partly because they had poor hygiene that needed correcting. And Mantia had the sole legal authority and duty to make decisions about Perlmutter’s medical care, court records show.

Bonnie and Stanley Bloom, relatives of the family, have questioned both the mounting cost of the guardianship and the quality of care the family is receiving, court records show. They complained to Judge Johnson and various state agencies, including Mantia’s employer, the Department of Elder Affairs. “To dissipate a person’s life savings with superfluous ‘care’ and questionable financial obligations is, at the very least, inhumane,” Bonnie Bloom wrote in a May 1993 letter to Judge Johnson.

“Does it not negate the spirit of the Florida guardianship laws?”

Mantia said the criticisms were unfounded. Johnson agreed — and issued an order enjoining the Blooms from criticizing Mantia or otherwise interfering with her ability to earn a living.

Johnson now says he issued the order to keep costs down because Mantia and her attorney were being forced to spend time — and the wards’ money — defending themselves.

The Blooms are now afraid to discuss Mantia. “The judge said we couldn’t, and we don’t want to go to jail,” Bonnie Bloom said.

Bibianna Bach was bedridden with arthritis when Mantia became her guardian and required “total skilled nursing care to survive,” according to court records.

HRS decided that Mantia neglected Bach because she failed to place the widow in a nursing home with constant care, even after Medicaid agreed to pay for it, state records show.

HRS has classified Bach’s death as “proposed confirmed” neglect, Maicas said. But Mantia is appealing the finding.

Mantia said she tried to place Bach in a nursing home but couldn’t find one willing to take her. Instead, a few weeks before Bach died, Mantia moved her to an unlicensed private home. The owner provided only room and board, and nurses visited part-time, state records show.

A doctor visited Bach before she died, and if Bach was in danger, he should have noted that, Mantia said.

The physician, Dr. Justin May, said Bach was not in danger when he saw her, and he blames Bach’s death on the person who reported Mantia to HRS. A call to the state abuse registry prompted HRS investigators, police officers and a fire truck to respond to the home where Bach was staying, May said.

“I honestly think they killed her by frightening her to death with all these men in uniforms around,” May said.

Mantia said she had moved Bach out of her Tamarac home so she could sell it to raise cash for her care. Mantia said she spent her own money for Bach’s care in her final weeks and still hasn’t collected hourly bills she is owed.

Mantia billed Bach more than $770 — over 22 hours at $35 an hour — for arranging the widow’s stamp collection and having it appraised, court records show. The collection was worth “$500 at best,” records show.

Mantia now regrets billing Bach so much for the collection. “I was a new guardian,” she said. “That’s the way I thought I had to do it.”

In her will, Bibianna Bach said her final wish was to be buried in a Catholic cemetery.

But when Bach died, Mantia had her cremated at a Jewish funeral home, records show.

“There was no money left,” said Mantia, who adds that she cared so much about Bach that she kept her ashes. “I did the most economical thing I could do.”

Waln, the woman in the Margate retirement home, is determined to break free of her guardians so she may live and die on her own terms, she said.

“This could get very depressing if I let it,” Waln said. “I can’t just stop and say I’m going to give up and let the whole thing go.

“I don’t care about my money, and my furniture and my clothes. Those are gone.

“It’s my life I want.”

Herald staff writer Mary Hargrove contributed to this report.

SHATTERED TRUST: THE GUARDIANSHIP INDUSTRY
When benefits are gone, so are the patients
April Witt
November 20, 1994
The Miami Herald
http://www.miamiherald.com/news/special-reports/v-fullstory/story/447977.html
For some hospitals, guardianship has become one answer to the difficult question of how to control skyrocketing medical costs.

The insurance industry, which once paid for sick people to stay in the hospital until they were well enough to go home, now tries to dictate how many days a patient should remain in a hospital bed.

Private insurers typically say an old person with a simple hip fracture, for example, should stay in the hospital no more than seven days, said Carol Taylor, director of utilization management at Aventura Hospital and Medical Center in Dade.

Medicare, the government insurer for the elderly, allows up to a 10-day stay and pays a hospital a flat fee of $7,000 for taking care of someone with a broken hip, she said.

But an elderly person with a mending hip is likely to remain weak and confused, unable to walk to the bathroom alone, much less go to the store to buy groceries, for several weeks.

That’s a dilemma for Taylor, who runs the department responsible for discharging patients safely once they no longer require acute medical care and the hospital can no longer be reimbursed for their stay.

“We’re sitting here with a patient who’s a nonrevenue patient in the hospital,” Taylor said.

A relatively unskilled home health aide may be all that wobbly elderly patients need to help them go home alone safely. The cheapest cost just $75 or $80 a day, but they aren’t usually covered adequately by insurance policies, Taylor said.

“None of the insurers cover them adequately for patients who live alone,” Taylor said. “Medicare pays for a home health aide for an hour and a half three times a week. So what does this poor person do the other 23 hours a day and the rest of the week?”

Many insurers will pay for an elderly person to spend a month in a nursing home after hip surgery.

But nursing homes often refuse to accept a sick elderly person unless there is someone — a relative or a guardian — who can sign them in and guarantee payment, Taylor said.

Taylor’s solution, when she cannot find a relative to help out and a hospital psychiatrist determines it’s appropriate, is to pay a guardian or attorney $1,200 to sign the patient out. She does it sparingly and with some regret, she said.

“Some of these people in the hospital setting are a lot different than they are going to be three weeks down the road when they’ve gotten out of the hospital. . . . They may come out of their confusion.

“But the problem is they can’t stay here any longer.

“On the hospital level, it’s important to act quickly. . . . Hopefully, it’s not too quick for the patient’s sake.”

SHATTERED TRUST: THE GUARDIANSHIP INDUSTRY
Guardians often profit at expense of the ill
April Witt
November 20, 1994
The Miami Herald
http://www.miamiherald.com/news/special-reports/v-fullstory/story/448015.html
Elsie Jablonsky, 82, went to the hospital to heal after she fell and lay stranded on her kitchen floor for two days with no food or water.

To Jablonsky’s horror, the hospital turned her over to a professional guardian — who froze her bank accounts, used her charge card for shopping sprees and terrorized her, according to Jablonsky and public records.

“I had to change the locks on my house, I was so afraid of her,” said Jablonsky, of Margate, a spirited retired bookkeeper who won a court fight to escape her guardian. “The hospital did the wrong thing by me.”

South Florida hospitals each year hand over hundreds of unsuspecting elderly patients to professional guardians, who make a living having elderly people declared incompetent and running their lives for a fee of $30 to $75 per hour.

Eager to discharge patients quickly once they can no longer bill an insurer for their care — but fearful of sending weak or confused people home alone — hospitals turn to professional guardians to sign patients out, typically to nursing homes or boarding houses.

The practice is so common, especially in Broward, that elderly people without close relatives who land in the hospital are in danger of losing all their legal rights and never going home again.

Several hospitals in Broward and Dade actually pay guardians or lawyers at least $1,200 a head to initiate guardianship proceedings for their patients.

“That’s amazing, to put it mildly,” said Frank Repensek, executive director of the Guardianship Program of Dade County, a nonprofit corporation that provides guardianship services for poor people and never accepts payment from hospitals for its services. “In my view, there’s an enormous conflict of interest in that.”

Two public hospitals in north Broward have contracts with a large guardianship company. They pay the company up to $1,800 for taking on each poor patient and — as an added incentive — promise to refer patients who have money.

The patients who have cash or own homes that can be sold end up paying the guardian company $41.50 an hour — indefinitely — to visit, run errands, pay bills and oversee their care whether they want a guardian or not.

“I don’t like to look at it in terms of the patient losing rights,” said Lynn Futch Cooney, attorney for the North Broward Hospital District. “In our terms, it’s more a patient gaining benefits. . . . We’re trying to provide for that patient the est care possible when there is no one else to do it.

“I don’t see a conflict at all.”

To be sure, guardianship may be the best alternative for some patients, such as a comatose man or woman who has no relatives
to consent to medical care or make life choices. And some hospitals resort to guardianship only in extreme cases.

“It’s always been something we’ve avoided at all costs,” said Jill Lenney, director of social work at Jackson Memorial Hospital in Miami, which never pays professional guardians to place patients and has a rigorous medical review process to ensure that no patient is plunged into an unneeded guardianship.

But the financial interests of some hospitals and guardians are being placed ahead of elderly patients’ rights and well-being, according to a review of hundreds of court records and interviews with South Florida hospital officials and guardianship experts:

* Nearly 20 percent of elderly people in Broward who are thrust into a guardianship proceeding from a hospital bed die within 34 days, before they ever make it to court for a hearing to determine whether they are competent to run their own lives.

This death rate appears far higher than in Dade, where it’s tougher to rush someone into a guardianship without a long court proceeding. The disparity suggests that some Broward patients may be discharged, or readied for discharge, before they are well enough to leave the hospital.

* Elderly people who may be temporarily disoriented after an illness or accident are sometimes stripped of their rights and rushed into life-changing guardianships even though they do not meet the legal definition of incapacitation.

* Men and women compelled to pay guardians $30 to $75 an hour — bills they have lost their legal right to fight — could, in some cases, manage their own lives if they had the help of an aide paid just $80 per day.

* Social workers and other relatively untrained discharge planners, not doctors, decide to call in guardians at some hospitals. Jablonsky’s doctor of 12 years, for example, did not know she had a guardian following her hospital stay last year until she told him, he said.

* Some elderly people receive deplorable treatment after they leave the hospital with a guardian. State elder abuse watchdogs found a former Broward General Medical Center patient tied to a chair with a sheet in a Fort Lauderdale boarding home just weeks after the hospital paid a guardian company $1,800 to initiate guardianship and help place him in an appropriate facility.

* Patient confidentiality is violated routinely. Without the consent of their elderly patients, hospitals provide information about their medical problems to guardians. The guardians use that knowledge in court to have the patient declared incapacitated, stripped of rights and placed in their care.

“(The hospitals) have made patsies out of us,” said Broward Circuit Judge Jack Musselman, who as a probate judge is responsible for approving and overseeing guardianships. “They have found a way to dump their problems on us.”

James A. Pearson, an experienced guardianship attorney, once saw little wrong with hospitals paying guardians to come into their patients’ lives uninvited but is now disturbed by the practice.

“After a while, I began saying, ‘Isn’t there a bit of a stink rising when it becomes an industry?’ ” Pearson said.

The industry works like this:

Professional guardians make a living by asking judges to declare elderly or disabled people incapacitated and to place them in their care.

Under state law, professional guardians are not licensed or regulated. Almost anyone over 18 can become one.

Once individual guardians or guardian companies win control of elderly persons, they can pay themselves handsomely — up to $41.50 an hour in Broward and $75 an hour in Dade — from the elderly person’s bank accounts with court approval.

One of the tougher aspects of the job, many guardians say, is finding new customers, elderly people in decline.

South Florida hospitals have an endless supply.

On the day in August that professional guardian Jacinth Preston was arrested and charged with grand theft, forgery and credit card fraud, she was scheduled to give a seminar on the rules and regulations of guardianship for the case managers of Northwest Regional Hospital in Margate.

“We’ve used her for several years,” hospital spokeswoman Renee Gould said. “She has been very professional and more than satisfactory.”

A former flight attendant and lingerie importer, Preston, 35, built a private guardianship business partly on referrals from Northwest Regional. Six of the 19 elderly people under her care, including Jablonsky, were Northwest Regional patients, Gould said.

Two weeks ago, Preston pleaded guilty to eight felonies for stealing from two of those patients: Jablonsky, a retired bookkeeper, and Morris Kline, 80, a printer who retired to Florida from Brooklyn, then suffered a stroke.

Preston won legal control of her elderly victims by vowing to take care of them, then used their credit cards to shop for herself. Three weeks after Kline died, she used his Sears charge card to buy a dishwasher and have it installed in her Sunrise home.

Preston tried to take guardianship of Kline’s mildly retarded adult son as well and threatened to institutionalize him, relatives said. She ran up about $10,000 in guardianship and legal fees for father and son in a few months. Kline’s relatives blame a Northwest Regional social worker for bringing Preston into their lives over their protests.

“I’m so bitter at that woman,” said Abe Hecker, Kline’s brother-in-law, who lives in New York. “She has no idea what havoc and pain and anguish she has created by her actions.”

Gould, of Northwest Regional, said she could not discuss individual patients because of confidentiality.

A review of all guardianship cases filed in the first two months of 1993 in Broward shows that more than 40 percent of the men and women who underwent incapacity proceedings were in a hospital when the process began. Typically, a hospital social worker contacted professional guardians and told them about patients’ medical problems, court records indicate.

Nearly 20 percent of those Broward hospital patients died before their incapacity hearings, scheduled so a court hearing officer could determine whether patients could take care of themselves or needed permanent guardians.

Similar countywide information for Dade is unavailable because of the manner in which Metro-Dade maintains its guardianship records.

Jackson Memorial, the only public hospital in Dade, does keep records that allow comparison. Jackson initiated guardianship proceedings for 27 patients last year. None died before a judge ruled on whether they were competent, hospital records show.

Broward court officials expressed concern at the high death rate in Broward and said they could offer no explanation other than that the patients were old and had health problems.

But Marlene Pinsky, a county attorney who handles guardianships for Jackson Memorial, said she knows why the hospital’s patients are not dying before their court hearings. Jackson Memorial, she said, does not try to discharge patients so ill that they are in danger of dying before an incapacity hearing. “If they are that acute, we keep them, and we keep treating them,” she said. One of the largest private guardianship companies in the state, South Florida Guardianship Program, works primarily with men and women coming out of hospitals.

The private, nonprofit corporation has responsibility for more than 200 elderly or disabled people, and more than half came from hospital referrals, president Kathleen Phillips said. Last year, area hospitals and those elderly wards paid the company more than half a million dollars in guardianship fees, 1993 tax returns show.

Although critics contend that it’s a conflict of interest for guardians to receive payments from hospitals, Phillips said she has no problem placing the needs of her elderly charges ahead of a client hospital’s financial concerns. South Florida Guardianship Program has fought hospital decisions to discharge patients the guardian deemed too ill to leave a hospital bed, she said.

“We would never compromise our integrity for the benefit of any individual or institution,” she said.

In fact, Phillips has grown wary of taking referrals from some private hospitals, where she said social workers try to push patients into guardianship who don’t need it.

“They just want to dump their cases in our lap,” she said. “We’ve been told there are no relatives, and then we get the hospital chart, and there are relatives. It’s so much easier (for the hospitals) to work with us. Maybe the family isn’t cooperating, and we’re fast.”

Turning elderly patients over to guardians has become increasingly common as insurers pressure hospitals to get patients out the door quickly to contain costs, said Sylvia Corulla, social work supervisor at Pembroke Pines Hospital, which sometimes hires Phillips’ company.

“They just want them out,” Corulla said. “Because a patient is confused, that doesn’t mean they can stay in the hospital. They will review it, and the patient becomes self-pay within 48 hours. After 48 hours, they become our problem. We need to move quickly, and we need a guardian who can move quickly with us.”

In a typical case, Corulla said, the hospital pays South Florida Guardianship Program to initiate guardianship proceedings and arrange for discharge of a badly confused patient to a nursing home. Then the guardian takes responsibility for paying the home from the elderly person’s assets, Corulla said. “That’s a nice discharge plan,” she said.

The financial arrangement with the guardian comes into play in more dramatic life-and-death situations as well. Recently, Pembroke Pines Hospital employees contacted South Florida Guardianship Program about becoming the guardian for an indigent man, 58, who had suffered a stroke and remained in a coma. After 45 days, Medicaid stopped paying for the man’s care, and the hospital began to lose thousands of dollars, Corulla said.

The hospital expected South Florida Guardianship Program to go to court and win permission for doctors to turn off life support, Corulla said.

It never happened, because the man’s son showed up from out of state, protested that his father was too young to die, and threatened to hire his own attorneys, Corulla said. The guardian company, after talking to the son, declined to seek guardianship, Phillips said.

The hospital now plans to transfer the man to a nursing home and pay his tab, an estimated $30,000 to $40,000 in the first 100 days, Corulla said.

She laments that the hospital was unable to hire the guardian for $1,800 instead. “It was a real bargain,” she said. South Floridians who don’t want hospital employees and guardians to make life decisions for them can designate a friend or relative as their “health care surrogate,” empowered to make decisions should they become too ill.

Otherwise, they check into a hospital and take their chances.

At Broward General, social workers typically make the decision to contact a guardian. Only rarely does a psychiatrist examine the patient first, said Christine Spratt, director of social work.

Jackson Memorial, by contrast, never initiates guardianship proceedings for a patient until three medical doctors, including a psychiatrist, examine the patient and conclude that extreme action is warranted.

“It’s just good practice,” said Lenney, Jackson Memorial’s head of social work. “I have a very skilled staff of social workers. They can tell how the patient appears to be. But are they going to be able to look at the chart and know that a head injury patient on this medication is going to be confused and if they stop taking the medication in a few weeks they may not be?”

Some hospitals initiate guardianship proceedings only when patients have no lucid moments, can’t communicate and appear to have no idea of who or where they are.

“If they just have a bad memory, then they are not incapacitated,” said Janet Caraglio, director of case management for Cedars Medical Center in Miami. “If they have periods when they are clear and maybe they just get confused at night, they are not incapacitated.”

Others, however, seek guardianship for patients described as confused, uncooperative, unrealistic about their ability to care for themselves, vulnerable to potential financial exploitation or in need of “follow-up care in an appropriate facility,” court records show.

Frank Murphy, a retired state transportation worker, was not incapacitated when Imperial Point Medical Center in Fort Lauderdale helped place him in a guardianship in 1992.

He was just old and had a bad reaction to some medication, his friends said.

“When a guy is 79 or 80, and they say, ‘How are you?’, and he says, ‘What?’, then they say this guy is not doing too good,” said the Rev. Robert Hanlon, a Roman Catholic priest and friend of Murphy for 25 years. “But people who knew Frank for years like I did knew that he was hitting on all buttons.”

A judge agreed. One month after he left the hospital with a guardian, a judge revoked the emergency guardianship, ordered the guardian to return Murphy’s assets immediately, and ruled that the way Murphy had been thrust into guardianship violated state law. Murphy was “not incapacitated in any respect,” court records said.

Many hospital officials say they trust the court system to sort out whether the patients they propose for guardianship are actually capable of caring for themselves. They also say they are not responsible for what happens to their patients after they call in a professional guardian.

“It’s up to the court to hear the evidence and decide,” said Leonard Freehof, associate administrator of Hollywood Medical Center. “Obviously, we don’t have a crystal ball, and we don’t know when someone is going to become competent again.”

Jablonsky said it didn’t take a crystal ball to know that she was not incapacitated when she went to Northwest Regional in January 1993. The arthritic widow was temporarily confused after falling and spending two days on her kitchen floor with no food or water, she said. “I was dehydrated,” Jablonsky told The Herald in September.

“There was nothing wrong with my head. It’s my feet. I got arthritis, and you shouldn’t know from that.”

Northwest Regional asked Preston, the guardian, to arrange Jablonsky’s care. Soon afterward, Preston visited the widow, dumped her purse upside down and confiscated her credit cards, according to Jablonsky and police records.

Preston then went shopping. While Jablonsky was in a nursing home, Preston ran up more than $800 in charges on her MasterCard and spent more than $300 in one day at a fancy women’s shoe store in Coral Gables, according to Jablonsky and police records.

Jablonsky learned about the charges only because she insisted on moving back to her Margate home, and one day her credit card company telephoned about an overdue bill. “I was shocked,” Jablonsky said. “She bought good stuff. I didn’t spend that in a year, what she spent in a week.

“They ought to put that little witch behind bars.”

Jablonsky hired an attorney to help her fight guardianship. The attorney filed a court document saying Jablonsky’s doctor of 12 years found her physically and mentally competent.

An enraged Preston threatened and scared Jablonsky, the widow said. Having frozen her bank accounts, Preston left Jablonsky home alone with no groceries and no way to buy herself food, court records show.

“She was frightening me,” Jablonsky said. “I asked her for some money for food. She told me she couldn’t give it to me because the judge told her not to give me any.

“All my bank accounts were tied up. She tied up my mail. She tied up my Social Security. I couldn’t get a red cent. This went on for two months.”

Under pressure from Jablonsky’s lawyer, Preston finally withdrew from the case.

Jablonsky regained control of her life, and Preston agreed to repay her for the more than $800 in charges she had run up on Jablonsky’s MasterCard.

On Nov. 30, Broward Circuit Judge Paul L. Backman will sentence Preston for the eight felonies. Under sentencing guidelines, she could serve up to 22 months in prison.

“I’m sharper than she is,” Jablonsky said. “Why would a hospital think she was fit to take care of anyone?”

A SHATTERED TRUST: THE GUARDIANSHIP INDUSTRY
System overpowers elderly exams
April Witt
November 21, 1994
The Miami Herald
http://www.miamiherald.com/news/special-reports/v-fullstory/story/447952.html
Hundreds of elderly people in Broward have been rushed into legal guardianship before they’ve had mental health exams or anyone has proven they can’t take care of themselves — an abuse of state law and their constitutional rights.

“I didn’t think this could happen in America,” said Hildegard Rothman, 86, a German immigrant who collapsed at a Hollywood hospital in December 1992 while visiting her dying husband.

Rothman was hustled into guardianship from her hospital bed without first being allowed to appear in court and defend herself — a right extended to every accused criminal.

“I didn’t go through what I went through at the war time, with the Nazis coming to get my husband, to put up with that,” said Rothman, who protested the guardianship, was found competent and set free last year.

Broward judges have routinely granted professional guardians and their attorneys instant control over old people through “emergency temporary guardianship,” a provision of state law rarely used in Dade and other counties.

The majority of long-term guardianships initiated in Broward in 1992 and 1993 began with emergency guardianship. Almost every guardian who asked for an emergency guardianship last year received it, frequently on the same day, records show.

As a result:

* Elderly men and women have routinely lost their rights before they realized anyone was trying to take them away.

* Protections that legislators intended to give almost every elderly or disabled South Floridian facing guardianship have been skirted.

* People like Rothman, found competent when they finally have their day in court, have lost control of their life and money for months even though they didn’t meet the legal requirements for guardianship.

Ray Licker was so humiliated after Broward General Medical Center thrust him into an emergency guardianship following hip surgery last year, at age 91, that he forbid his girlfriend to utter the word “guardian” in his presence.

Licker, a retired jeweler, lost control of his life for five weeks, and only regained it after a panel of mental health examiners unanimously said he was able to take care of himself and the guardian backed off.

“It took a piece of his life,” Rose Licker, who married him in August, said. “He became so fearful that this would happen again that I was constantly assuring him, ‘It’s OK, this will never ever happen to you again.’ ”

Mae Shurman, 81, a retired nurse and champion bridge player, lost her rights suddenly Aug. 9 after her estranged daughter enlisted the help of a professional guardian and guardian attorney.

“This is so corrupt,” said Shurman, of Coconut Creek, who was portrayed in court as an intelligent but troubled woman who doesn’t get along with her husband or daughter.

Professional guardian Knyvett Lee and Lee’s attorney, Todd Smith, sought control of Shurman’s savings, an estimated $750,000 in stocks and bonds. A court hearing officer recommended that Shurman keep control of her own money during her emergency guardianship. Still, the guardianship documents Smith later handed a judge to sign, authorized Lee to seize Shurman’s considerable assets.

Smith, when challenged in a later hearing, said that he accidentally presented the wrong paperwork to the judge.

Once Lee had control over Shurman’s life, she tried to put her in a psychiatric hospital against her will. After Shurman spent a few hours in the hospital waiting area, the hospital concluded that she didn’t meet the legal requirements for involuntary admission and sent her home. Meanwhile, though, her husband had been moved from their apartment, and no one would tell her where he was, Shurman testified under oath.

Three court-appointed mental health examiners eventually visited Shurman and split on whether she needed a guardian.

In October, after Shurman spent two harrowing months in guardianship, she appeared in court for the first time and testified lucidly in her own defense.

General Master Kathleen Ireland, the hearing officer, concluded that Shurman didn’t meet the legal requirement for guardianship after all.

“This is all about money,” an outraged Shurman said. “It’s not about helping people, it’s about taking their money.”

Ireland, on her own initiative, has called a new hearing to determine whether Shurman’s daughter acted in bad faith. Smith denies it. “There was absolutely no bad faith in this,” Smith said. ‘It’s only in her mind that it’s about money.”

Professional guardians make a living having elderly or disabled people declared incompetent and placed in their care for a fee of up to $41.50 an hour in Broward and up to $75 an hour in Dade.

Emergency guardianships proliferated in Broward as a growing number of professional guardians scrambled for new clients.

Broward court officials say they are now so concerned about abuses of emergency temporary guardianships — ETG in court parlance — that they are trying to grant fewer.

Last month, after The Herald reviewed computerized court records on emergency temporary guardianships, a Broward court officer told a gathering of professional guardians that, from now on, they will have to take the standard, lengthier route to guardianship as is commonly done in other counties.

“It’s going to be, as it should have been all along, just for an emergency,” said Barbara A. Goglio, the top attorney for the probate court in Broward.

State law prescribes a monthlong process by which elderly or disabled people who need assistance enter guardianship and are stripped of rights, such as the rights to vote, drive, handle their money, determine where they live or pick their own friends.

First, three court-appointed mental health experts examine an alleged incapacitated person and offer an opinion on whether they are competent. Then a court officer presides at a hearing where both the guardian and the elderly person can testify.

Finally, a judge rules on whether the old person is incompetent, and therefore needs a guardian.

State law offers one exception to this process. If an elderly person’s mental well-being or their assets are in “imminent danger,” a judge can grant a 60-day emergency temporary guardianship.

In Dade, judges granted about two emergency guardianships a month last year, typically in dire circumstances, such as an elderly person’s being too demented to consent to life-saving surgery.

In Broward, by contrast, judges granted about 30 emergency guardianships a month in 1992 and 1993.

“Broward and Dade are like night and day,” said Carol Taylor, director of utilization management at Aventura Hospital and Medical Center in Dade, which sometimes pays guardians or attorneys in each county $1,200 to help discharge patients deemed unable to care for themselves.

“To tell you the truth, it seems easier for someone to get guardianship in Broward.”

Emergency guardianships in Broward have become a convenience for a host of people other than the elderly people who end up in them.

State social workers, required by law to provide protective services to abused, neglected or exploited old people, instead frequently turn clients over to professional guardians.

Hospitals, eager to discharge frail elderly patients quickly once an insurer stops paying for their care, have done the same.

“It was a matter of people looking for a solution to their problems, and the ETG was the first thing they grabbed,” said Gary Armstrong, past president of Broward’s professional guardian association. “It was bad judgment. Unfortunately, the ETG has been inappropriately used.”

Until May of last year, elderly people in Broward were often stripped of rights after a professional guardian had a private conversation with a judge, who then signed papers authorizing emergency guardianship. Elderly people lost control of their lives before getting a chance to dissent and without having a court-appointed attorney to defend them — a clear violation of state law.

Spurred by court officials who realized elderly people were hurt by the one-sided procedure, Chief Probate Judge W. Clayton Johnson ordered reforms.

General masters, court officers who hear testimony and make recommendations to judges, are now available two days a week to field requests for emergency guardianships. A court-appointed attorney is present to represent the elderly or disabled people in question, although the lawyer doesn’t always meet his or her client first.

Abuses persist. In recent weeks, court officers have begun forcing some guardians, social workers and hospitals to exhaust alternatives to emergency guardianship. State law, for example, allows social workers to go to court and win authority to give people help even if they don’t want it.

Hospitals, instead of calling guardians, can help a patient’s longtime friend become their health-care proxy, legally entitled to make decisions for a confused person without stripping them of any rights.

“The major thrust will be making people prove that there are no less restrictive alternatives to guardianship,” said Goglio, who works for Judge Johnson.

“That may mean making the hospital social workers come in and testify as to why can’t the hospital do anything else. They are looking for the person who is starting the ball rolling to begin taking some liability for their decision.”

In a court file documenting Rothman’s fight to regain control of her life is a handwritten note from a court official observing that the widow narrowly escaped becoming “another ETG fatality.”

It is little comfort to Rothman that she won a battle she should never have had to fight. Losing control of her life even temporarily, especially as her husband of 50 years was dying, was a horror, she said.

“I didn’t know who to trust,” Rothman said. “I was so afraid.”

On a recent afternoon, Rothman sat in the living room of her Miramar home, a metal walker stood in front of her armchair, a blanket covered her thin legs. Rothman pointed to a black-and- white photograph of her and her husband on the boat to America.

They were tall and handsome then.

As young lovers fleeing Nazi Germany, the Rothmans risked their lives to save each other. Frederick Rothman, a Jew from Vienna, ventured through dangerous streets to find a doctor the night his wife miscarried, ending forever their hopes for children. Hildegard Rothman, a German Christian, faced down police who captured her husband, and miraculously, talked them into giving him back to her.

As an autumn afternoon waned and a private nurse prepared a dinner tray for her, Rothman spoke about growing old, losing strength and trying to reconcile frailty with memories of the resilient couple in the old photo.

By December 1992, Frederick Rothman, gravely ill, fell daily. “I tried. I couldn’t lift him up,” Hildegard Rothman said. “I rolled him over and put a cover on him as good as I could.”

He was admitted to Hollywood Medical Center and continued to fail. Overwhelmed, Hildegard Rothman collapsed with chest pains at her husband’s bedside, and was hospitalized as well.

Still, she believed she would grow strong enough to take him home again and save him one last time. “I said I must get strong for him,” she recalled. “I was going to put a bed in the living room so he could look out the window.”

Instead, the hospital called in a private nonprofit guardianship company, South Florida Guardianship Program, which went to court and had both the Rothmans’ rights removed before they realized there were legal actions pending against them, Hildegard Rothman said.

Frederick Rothman died 18 days later, leaving his widow to fight guardianship alone.

Her voice dropped to a whisper as she recounted her humiliation at having a stranger, a professional guardian, come into her life, uninvited, and take over.

“One day I went to the bank and I wanted to put more money in,” Rothman said. “The lady . . . said to me, I can’t take your money because you don’t have an account any more. I thought she made a joke.

“I said how do you mean I don’t have an account because nobody told me they had closed that account. She said, ‘I’m sorry. I can’t tell you anything.’ ”

Kathleen Phillips, president of South Florida Guardianship Program, Inc., said that her company acted fairly and gave Rothman needed help, such as arranging her husband’s funeral, paying household bills, and hiring a part-time companion.

“We came in to protect her, that was our only goal,” Phillips said. “I can’t tell you she was happy. I don’t know if I would want you to go into my bank accounts, to tell you the truth. But if I needed help, I’d want the help we gave her.”

Rothman did not get a chance to tell her side in court until five weeks after she had lost the right to run her own life. The widow’s testimony convinced a court officer that she was grieving, not incompetent, and deserved her life back.
Still, Rothman insists that she is, after all, an ETG fatality. She will die without ever feeling safe again.

“I don’t trust anyone anymore,” she said. “I am lost.”