Star-Telegram highlights portion of guardianship issue

Tarrant County woman regains control of her life
Melody McDonald
July 10, 2010
FORT WORTH — Jennifer Nikirk was six months pregnant and on her way home from her teaching job in Bridgeport when the wreck happened.

She remembers none of it, or the months that followed.

But her parents and sister will never forget: The trauma doctors. The three-month coma. The waiting and praying.

On April 25, 2008, Nikirk, then 34, gave birth to her son, Dylan. Less than a week later, the single mother began to emerge from her coma.

“She didn’t know what planet she was on,” recalled her father, Don Nikirk. “She thought she was 13 years old and didn’t know she had had a baby. She didn’t remember she was pregnant or know anything about the accident. It was obvious she couldn’t conduct her affairs.”

Don Nikirk and his wife, Phyllis, had been trying in vain to handle their daughter’s personal, medical and financial business since her wreck on Jan. 29, 2008. But because they hadn’t been given power of attorney or been appointed her guardian, their hands were tied, even though she suffered a severe brain injury and was incapacitated.

Seeing no other option, Don Nikirk contacted an attorney to work toward being appointed her guardian, a process he quickly discovered was serious and complicated.

“Guardianship is the last resort,” said attorney Jeff Arnier, who is the court investigator in Tarrant County Probate Court No. 2. “It is the most restrictive thing. You are going to strip away their civil rights. And you become married to the court.”

An exhausting process

On May 16, 2008, Probate Judge Pat Ferchill appointed Don Nikirk as his daughter’s guardian, giving him full authority over her estate and person.

After the hearing, Ferchill’s staff gave Don Nikirk an orientation and handbook on guardianship, outlining what was expected of him. Among other things, he was required to file an annual report, document every penny he spent of his daughter’s money and be subjected to court oversight.

“The court clerk handed me this three-ring binder chock-full of information, and I looked at it and thought, ‘Good God, what have I gotten into?’” Don Nikirk said. “Then it dawned on me what was going on. I didn’t realize it put the person under the protection of the state.”

On Oct. 31, 2008 — after spending months in a hospital, rehabilitation clinic and group home — Jennifer Nikirk moved into her parents’ house near Saginaw. For the next 11/2 years, Don Nikirk and his wife cared for their daughter and her infant son.

It was expensive, time-consuming and exhausting.

“There is a significant emotional and financial burden that goes along with it,” Don Nikirk said. “The little money she gets for Social Security doesn’t begin to cover her living expenses or to take care of that little boy. But the guardianship helped protect her. There is just no other way. We couldn’t have managed without it.”

Over time, Don Nikirk said, his daughter started walking again and helping care for Dylan. Before long, she was enrolled in parenting, speech and painting classes, as well as exercising at the YMCA. Eventually, Don Nikirk said, she started expressing an interest in driving and dating again.

“The better she got, the more trouble she was,” her father joked. “When she was confined to a wheelchair, she wasn’t hard to manage. … She was no longer an incapacitated person. She wanted to go to concerts.”

Back on track

In December, Jennifer Nikirk wrote a letter to the judge requesting that her rights be restored. Over the next few months, Don Nikirk filled out a mountain of paperwork and paid for a neuropsychological evaluation of his daughter. Ferchill, in turn, sent a master social worker to the Nikirk home to investigate her progress.

Last month, Ferchill held a hearing to determine whether Jennifer Nikirk was still incapacitated. After hearing testimony from his master social worker and Don Nikirk — both of whom said she should be restored to full capacity — Jennifer Nikirk took the stand.

She told the judge that although she would continue to need her parents’ help, she wanted to learn to drive again and someday get a teaching job, pointing out that she was volunteering in the Eagle Mountain-Saginaw school district.

“Do you understand that this guardianship was done for your protection?” Ferchill asked, smiling widely. “Do you feel like you need the court’s protection any longer?”

“No,” Jennifer Nikirk replied, meeting his grin.

“Say it louder,” the judge said.

“No,” she shouted.

The judge looked out into the courtroom, where some observers were wiping away tears.

“This is a joyous occasion,” the judge announced. “We don’t get to do this very often. By all means, this application should be granted — she should be restored to full capacity.”

A bit later, before the Nikirks left the courtroom, Ferchill wished them well.

“My congratulations to you, Ms. Nikirk,” he said. “We should have had a brass band up here or at least some balloons.”

And with that, Jennifer Nikirk walked out the door and back into her life.

Volunteers help fill gap as more indigent people require legal guardians
Melody McDonald
July 10, 2010
A silver dog tag hangs around the neck of the 57-year-old Air Force veteran, just in case.

Just in case he gets lost at Walmart, wanders away from his assisted-living facility or simply gets confused.

The tag lists his name and the cellphone number of his volunteer guardian, Eddie Carroll — the only person who regularly visits him.

“Eddie is basically my only contact with the outside world,” the veteran said.

Personal tragedy, alcohol abuse and a series of strokes have robbed the man of his short-term memory.

Because he no longer has any friends or relatives who are willing or suitable to look after him, a Tarrant County probate judge appointed Guardianship Services Inc., a Fort Worth-based nonprofit organization, his official guardian several years ago.

Carroll, a volunteer for the organization, was asked to help look after the man, an opportunity Carroll gladly accepted, partly because he’s also a veteran.

“I happen to think he is a very neat guy,” Carroll said. “His needs, wants and desires are not great. The things he likes to do, we do.”

The man, who is not being identified because he is a ward, is among more than 2,400 Tarrant County residents being cared for by court-appointed guardians because they are physically or mentally incapable of making decisions about their personal, medical or financial affairs.

In most cases, Tarrant County’s two probate judges appoint spouses, relatives or friends as the legal guardian, but an increasing number of people in need are on their own.

In those cases, the judges appoint Guardianship Services Inc.; the Department of Aging and Disability Services; or private, professional guardians to manage their lives and make crucial decisions.

“We are called upon to help protect people for a lot of different reasons,” said Judge Steve King, who presides over Probate Court No. 1. “They may be totally functioning except they can’t say ‘no’ to a con man or they can’t say ‘no’ to their youngest child. They literally have to be protected from themselves.” While no single agency keeps statistics on the total number of wards in Texas, state and local officials say there has been a surge in cases the past several years. Experts attribute the increase to people living longer, the prevalence of Alzheimer’s and related dementia disorders, and people’s reluctance to care for incapacitated loved ones.

Tarrant County relies heavily on volunteers to make sure no one falls through the cracks. College interns studying to be social workers and kindhearted people like Carroll are often called upon.

“Until I got involved in this type of court, I had no idea there were so many people in this world who have no one,” said Judge Pat Ferchill, who presides over Probate Court No. 2. “The volunteers are saints.”

And while Tarrant County officials insist that their guardianship programs are solid, efficient and innovative, discussions are ongoing statewide about the system’s overall health. The Texas Senate Jurisprudence Committee recently conducted a public hearing on guardianship after some complained that the system is political and costly and that some family members are being removed as guardians without notice.

Meticulous care

Just after breakfast on a recent weekday, a 71-year-old widow was wheeled into a conference room at a Fort Worth nursing home.

Arlene Shorter, an assistant investigator with Ferchill’s court, was waiting to check on her well-being.

“I’ve got a broke shoulder, and they messed it up when they fixed it here,” the woman blurted out.

“Who messed up your shoulder?” Shorter asked politely.

“The nursing home,” snapped the woman, whose shoulder was not in a sling or a cast. “I fell down in my kitchen at home. My son works, and he didn’t have anybody to take care of me, and he brought me here. He just brought me here and put me in here. I guess he looked it up in the phone book.”

Recently, the nursing home’s social worker contacted Tarrant County’s probate clerk, suggesting that the woman, who has dementia, was incapacitated and needed a guardian. Although the woman’s son visits, the staff found him uncooperative, according to court documents.

For the next two hours, Shorter questioned the woman, who had no idea how much money was in her bank account; how the nursing home or her home mortgage was being paid; or what kind of medication she was taking.

It was like hundreds of other visits made by Shorter, who investigates requests for court-initiated guardianships from Tarrant County nursing homes, hospitals and social-service agencies, or just concerned citizens.

After Shorter visits potential wards, she reviews their medical and financial history and contacts children, friends, even neighbors, to determine whether anyone might be willing to serve as guardian.

“It’s not just that the cases have increased, but they are more problematic,” she said. “We are seeing a lot more family fights — who is going to be in charge of Mom or who is going to be in charge of Mom’s money?”

Once the investigation is complete, Shorter makes a recommendation to her supervisor, Jeff Arnier, a court investigator and attorney, who, if warranted, files a petition with Ferchill to appoint a guardian.

Indigent individuals who don’t have friends or relatives willing, suitable or able to look after them often become the responsibility of Guardianship Services Inc., the local agency the county contracts with.

GSI is helping 487 low-income elderly or disabled Tarrant County residents. More than 350 are legally incapacitated and must have all aspects of their lives managed. The other clients are voluntary participants who receive help with their finances, a less restrictive option.

The agency, which has a variety of funding sources, including $525,000 from this year’s county budget, has 21 staff members, including eight case managers who are state-certified guardians. An army of nearly 100 volunteers, put through specialized training, helps offset the caseload.

“This is not the kind of program where you can have a waiting list,” said GSI Executive Director Colleen Colton. “We can’t say, ‘We’ll get to you later.’”

Finding a guardian

The 69-year-old man was found naked, lying in urine and feces, in his third-floor apartment — unable to get back into his wheelchair.

The 85-year-old widow was scammed out of $80,000 after being told that she had won an international lottery but first had to pay for costs associated with shipping the suitcase filled with millions.

Within two hours during a single afternoon, both cases came before Ferchill for guardianship.

In both cases, Adult Protective Services had obtained emergency protective orders to remove the individuals from their homes. The clients were placed in a nursing home, and their cases were referred to the Department of Aging and Disability Services, which provides guardians in cases involving adults who have been abused, neglected or exploited.

What officials discovered in the man’s case was disheartening. His son had recently lost his job and couldn’t help care for him. The man’s roommate, a longtime friend, had mental-health issues and was not suitable for a guardian.

The elderly woman’s case was more promising. Officials found a distant niece willing to serve as her guardian once the woman’s Medicaid application was approved to offset the cost of medical and housing expenses.

In both cases, DADS petitioned the court to be appointed guardian. After back-to-back hearings, Ferchill granted the petitions. But in the woman’s case, there was an understanding that, once her situation was stable, the niece would likely be appointed her successor guardian.

“We try and make the best of a bad situation,” Ferchill said. “Guardianship is the last exit on a long train track.”

DADS, like other guardianship agencies, has seen a jump in its caseload. As of June 25, DADS was serving 1,220 wards statewide, including at least 37 in Tarrant County, said Allison Lowery, a spokeswoman for the agency. To compare, at the end of fiscal 2007, DADS was serving 1,045 wards statewide.

In cases where wards have money and significant assets but no suitable family or friends, private professional guardians are likely to be appointed, officials said.

Layers of oversight

Regardless of whether DADS, GSI, a private professional or a relative gets guardianship, everyone is subjected to court oversight and scrutiny.

In Ferchill’s court, that might mean an unannounced visit from Wendy Vanatko.

“That way, I can really see what is going on,” Vanatko said.

On this day, Vanatko dropped by a southwest Fort Worth nursing home to see an 82-year-old ward with diabetes, kidney disease and glaucoma. She found her dressed and clean, resting in bed.

“I just wanted to come by and check on you to see how you are doing,” Vanatko said loudly. “Do you know today’s date?”

“No,” the woman whispered.

“You have a guardian named Jackie,” Vanatko said. “When was the last time you saw her?”

The woman wasn’t sure. “A month or two,” she replied slowly.

After talking with the woman and surveying her living conditions, Vanatko went through her medical records, page by page, and questioned the nursing staff. Vanatko wrote down everything — just as she has done on more than 180 cases since January.

Vanatko, a graduate student at the University of Texas at Arlington, is doing a 500-hour internship in Ferchill’s court as part of his court visitors program. The program trains social-work students to visit wards and contact their guardians to make sure the wards are being cared for properly.

Each week, Vanatko discusses her reports with program manager Denise Buchan, who forwards them to Ferchill. The judge addresses problems ranging from a ward not exercising enough to nonworking smoke detectors.

“I’m looking to see if there is a red flag or if anything pops up since I am responsible, ultimately,” Ferchill said. “The buck stops here.”

State law requires probate judges to send a court visitor to each ward every year — a mandate Ferchill and King said they take seriously.

“This community has tried to come up with a way to have as much as a safety net as possible, but not everybody gets caught,” said King, who uses students from Texas Wesleyan University and other volunteers. “If you can’t do anything else, if you can’t have a perfect system, at least you can try and monitor what you do have.”

Tough but rewarding

To be sure, guardianship is not for the faint of heart.

Guardians must not only make decisions about food, housing and medical treatment, including end-of-life care, but also keep meticulous records and send an annual report to the judge.

Still, most guardians, especially the volunteers, say the positives outweigh the negatives.

Thanet Flint, 62, who has volunteered with GSI for 13 years, said she grieved when her last ward died but wouldn’t have traded the experience for anything.

“It was like losing a parent,” she said. “She was that fabulous — such a character.”

Flint is now helping care for 83-year-old Dolores Collier. Collier is not legally incapacitated, but Flint helps with her finances, going through her mail, paying her bills and bringing her spending money each week.

“No one understands me like she does,” Collier said. “I was lucky to get her.”

Carroll, the volunteer guardian of the Air Force veteran, said he has also forged a lasting friendship with his ward. Taking him to eat, bringing him the paper — or even buying him the dog tag in case he gets lost — makes both of them feel good, he said.

“Whatever he was, or was not, neither takes away or adds to his friendship today,” Carroll said. “He’s suffered a great deal of personal pain in life, and he’s found this place of calm. I hope he lives to be a very, very old guy.”

Texas senators hear complaints about guardianship system
Melody McDonald
July 10, 2010
During a four-hour hearing last month in Austin, a few Texas senators listened to more than 20 people talk about problems in the state’s guardianship system.

Some speakers complained that it is too political, with probate judges favoring certain attorneys for appointments on cases.

Others were angered that the probate code allows for ex parte hearings that, in emergency circumstances, enable judges to remove guardians without notice.

And several speakers accused state and local agencies of not seeking less restrictive alternatives, as required by law, before recommending guardianship.

The Senate Jurisprudence Committee is studying the effectiveness of the guardianship program implemented by the Department of Aging and Disability Services and Adult Protective Services and whether clients and their assets are being adequately protected.

The speakers included parents, former guardians, judges, advocates, court personnel and state officials — all of whom had differing opinions and separate agendas.

And while criticism of APS and DADS dominated much of the hearing, many speakers voiced their concerns about various probate courts, including in Denton and Tarrant counties.

At least three Tarrant County families complained that Probate Judge Pat Ferchill removed them as their loved ones’ guardians in ex parte hearings after receiving information that they were causing problems, were not cooperating or were not providing appropriate care.

“This should never happen — family members and friends are removed, and no one is ever notified?” said Sharon Richardson, whose guardianship over her mother was stripped. “These ex parte hearings need to stop.”

Drucilla Covington, whose family lost guardianship of a daughter, told the panel that these “secret hearings” are destroying families. “Ex parte hearings should be abolished from all guardianship law,” she said.

Steven Fields, court administrator for Ferchill, reminded the committee that it was hearing only one side. He said Ferchill conducts ex parte hearings to remove guardians in only a small number of cases, such as when an incapacitated person is being treated cruelly or neglected.

“It hurts me to hear all these allegations about Judge Ferchill. He has been very active in improving guardianship all over the state,” Fields said. “It is a judge’s duty not to satisfy all the family members but to do what is right for the incapacitated person.”

The committee, led by Sen. Jeff Wentworth, R-San Antonio, could propose legislation.