How judges, probate attorneys, and guardianship orgs abuse the vulnerable (TX)

Mary Dahlman’s problem is all about money.

A lot of people want at the estimated $20 million trust Dahlman’s deceased mother left to her and her brother. Over the past year, a flock of local probate attorneys have already drained nearly half a million dollars in fees out of that trust.

And they want more.

“I’m not dead yet,” Dahlman, 67, said wryly in an interview with the Current this summer. “Obviously they can have it when I’m gone.”

It’s all that money that first brought Dahlman into court with Bexar County Probate Court 2 Judge Tom Rickhoff three years ago. Dahlman has a knack for explaining dizzying financial details with crystal clarity: trust managers at Falcon Bank, she claims, had begun to withhold depletion taxes from the trust, calling it principle then making Dahlman and her brother pay income tax on cash they never got. Lawyers with Falcon Bank denied they’d made a mistake, and the lawsuit was set to play out in Rickhoff’s court.

That is until Rickhoff and attorneys in his court began tossing around the loaded word “incapacitated.”

By summer 2011, Dahlman insisted, Rickhoff got fed up with the Falcon Bank dispute and, as she recalled it, “Judge Rickhoff comes out and says he’s so tired of seeing me in his courtroom. He says, ‘I’m gonna see if she needs a guardian.’”

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Stripping away someone’s rights in court can be messy, expensive business, especially when family squabbles or large, contested estates exacerbate things.

In Texas it’s estimated some 30,000 to 50,000 disabled and elderly persons have been declared incapacitated and ordered into guardianships, losing the right to decide where they live or how they spend their money. Nationally the number of those declared incapacitated is rising fast as baby boomers age. Reports of mistreatment, neglect, and problems involving both relatives and non-family members appointed by courts to protect them have also risen, according to reports from the federal Government Accountability Office, which in 2010 and 2011 issued warnings of increasing numbers of elderly and disabled people neglected and ripped-off under guardianships.

With guardianship hanging over her head, Dahlman’s Falcon Bank lawsuit was put on hold, and it’s been a fiasco ever since, she says. William Bailey, a court-appointed attorney and a regular in Rickhoff’s court, investigated years of Dahlman’s financial statements, scouring through every check she’d written, each transaction, every gift to friends and family. Bailey’s conclusion: People for years had been financially exploiting Dahlman, making her no longer mentally fit to watch over her own sizeable estate. He urged Rickhoff to appoint a guardian to freeze, take over, and manage Dahlman’s finances for her, meanwhile Dahlman’s three estranged daughters, perhaps out of fear that their mother was burning through their inheritance, filed motions to have the court appoint a guardian.

Three forensic psychiatrists would eventually disagree with Bailey, declaring that Dahlman is mentally fit and capable of spending her money as she pleases — though she might be better served by keeping a closer eye on her checkbook balance, one psychiatrist wrote. Still, despite three expert opinions to the contrary, a court-appointed investigator and lawyers for Dahlman’s three daughters continued to push for guardianship, and over the course of the summer Dahlman had to continue to fight for her financial freedom in court while also fighting nearly $100,000 in fees attorneys tried to draw from her estate.

“They’re going to bankrupt Mary for the foreseeable future just so they can get paid in full,” Dahlman’s attorney Phil Ross said as he exited a court hearing in July.

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As guardianships rise, advocates in Texas and elsewhere claim cabals of judges, close-knit networks of probate attorneys, and guardianship organizations are free to pilfer the pocketbooks of the elderly and vulnerable, wrongly seizing possessions, kicking folks into nursing homes and hospices before their time, splitting up estates and separating parents from their disabled children.

“After seeing many of these cases play out, I’ve boiled it down to this: it’s the deception of protection,” said Debby Valdez, a vocal San Antonio-based activist behind the advocacy group Guardianship Reform Advocates for the Disabled and Elderly (GRADE), whose members regularly testify at committee hearings at the Texas Legislature. GRADE gets regular calls and emails from families across the state, Valdez says, the common element being family members severed from aging parents or disabled children without knowledge, or those frightened and confused over the prospect of having their lives, finances, and futures put in the hands of court-appointed guardians.

With GRADE’s bullhorn, many families have stepped forward in recent years accusing courts of needlessly taking control of elderly people and their estates. Valdez recently helped speak out for James Pride, 78, an Air Force veteran from the Dallas area who awoke from a stroke in 2010 to find the court had appointed a guardian over him and frozen his assets. And Valdez says it’s been a long, hard, and costly road trying to get his personal and financial freedom back.

Similar stories have played out in Bexar County courts. One woman woke from a horrific car wreck to find she’d been appointed a guardian and declared incompetent to touch her own money. In the process of regaining her freedom, she wound up on the street while local attorneys pulled thousands from her life savings in court-approved fees. Lawyers drained hundreds of thousands of dollars from Mary Dahlman’s estate while arguing she couldn’t manage her own finances, though three medical experts testified to the contrary. And one San Antonio woman, after years of fighting for guardianship of her disabled daughter in Bexar and Travis counties, has now been completely cut off from her daughter after a court-appointed guardian terminated visits last month.

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In 2005 the Senate Health and Human Services Committee and Governor Rick Perry declared an overhaul of Adult Protective Services and Child Protective Services as a matter of legislative emergency, the concern being that state caseworkers had routinely failed to notify courts when clients were in danger, often with tragic consequences. Lawmakers made major changes to the human resources and probate codes, Valdez says, changes aimed at ensuring protections for at-risk elderly.

Since then, an industry of nonprofit and for-profit guardianship organizations have popped up across Texas with paid, certified guardians who benefit financially from those whose lives they oversee. All of this comes with little state oversight or monitoring to ensure the well-being of the “ward,” as people thrown into guardianship are called in court.

“We’re seeing aging Texans placed under guardianshp by these agencies apparently just because they’re old, or that they have substantial financial resources and assets,” Valdez said. There’s no statewide agency with oversight of guardianship, meaning each individual probate court shoulders the responsibility. Families in North Texas have emerged as the loudest critics of the current system, many of which have traveled to Austin since 2010 to testify at state hearings.

In some of the state’s largest counties, like Bexar, so many people are shuffled into guardianship that each probate judge sees as many as 3,000 wards, and most courts only have a single investigator to check out potential problems. Bexar County Probate Court 1 Judge Polly Jackson Spencer estimated Bexar County juggles as many as 4,000 to 6,000 guardianship cases.

“We’re seeing an increasing number. We’ve been a great deal more active in actually encouraging people to report to us when they believe a person may be incapacitated and in need of a guardian,” Spencer said. In some cases, she said, family members might even quietly prod the court to initiate a guardianship proceeding “so they don’t come off as the bad guy.”

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The Texas Guardianship Certification Board was created in 2006 with the goal of making sure private professional guardians appointed by courts were competent and qualified. Over 3,000 people across Texas are now under the control of a handful of private professional guardianship programs, and the Waco-based nonprofit Friends for Life has 86 cases on file in Bexar County. Some of the individual private professional guardians, according to state records, are charged with controlling the lives of as many as 120 individuals at any given time.

Three such private professional guardians, two of whom are active probate attorneys in Bexar County courts, keep watch over 38 people with guardianship cases here.

Since its activation in 2007, the state’s GCB has received 28 complaints from families, advocates, and even judges, and some of those cases highlight the potential pitfalls of guardianship.

In October 2010 Billie Mae Rensberger filed a complaint with the GCB against Ramona Brush and Celina Fuentes, both with the group Family Eldercare, which oversees 382 guardianship cases in Travis County. “Family Eldercare took over my parents’ property, their lives, removing them from their family home without our knowledge or forewarning to a nursing home,” Rensberger’s complaint reads. “My sister and I were blocked from visiting our mother during this time period for a week with no reason give (sic).”

Later that year Rensberger reached a settlement with Family Eldercare in a Travis County court, appointing a family member as permanent guardian, and Family Eldercare gave up all claims to the parents and their estate. Rensberger couldn’t be reached by phone or email for comment, but she wrote in an email to the GCB, “As an aside I do not believe this guardianship with attorney ad litems,” or court-appointed attorneys, “serves the public good.”

The GCB last year also heard the case against Frank Metyko, who stepped down from a Galveston County guardianship program and gave up his GCB certification in lieu of disciplinary action from the board. The complaint, filed by Galveston County Probate Judge Gladys Burwell, alleged that Metyko overlooked or ignored serious lapses by his case manager Silvia Villarreal.

Burwell wrote that Villarreal “allegedly stole funds from wards under her case management.” Burwell also filed records with the GCB showing the case manager sold an elderly man’s cemetery lot, then later applied for burial fees from the county’s indigent burial fund.

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“This was me,” said Joy Powers, holding up a photo of a broken, battered woman clinging to life in a San Antonio hospital bed. “I wasn’t supposed to live. Seems I made a lot of people angry because I did.”

In November 2010 Powers was driving her truck on U.S. 83, traveling from Kerrville to the small town of Leaky when she veered off the road, rolling several times. She was airlifted to University Hospital in San Antonio with a broken neck, broken wrist, and massive bleeding in her brain. Initial reports listed the wreck as fatal.

When Powers woke three weeks later she was a ward in Judge Rickhoff’s Bexar County probate court.

Eventually two attorneys, one her court-appointed lawyer and another representing an estranged family member who got guardianship, visited the Mesa Vista nursing home in San Antonio, where they’d placed her.

“I thought I’m not even 50 years old, what am I doing here? Most of the people around me were elderly, they had dementia,” Powers recalled in an interview this summer. “Those lawyers saw that I was alive and well, but they decided I needed a guardianship anyway. Nobody told me my rights or anything, nobody explained it to me.”

With nobody keeping watch over the guardian, Powers, an Air Force veteran, wasn’t getting a dime from her VA benefits or Social Security. Within months of getting released from the nursing home, she wound up homeless, crashing on friends’ couches and relying on food pantries.

“Under guardianship I had no rights. I couldn’t go to the bank. I couldn’t get any of my own money. I couldn’t vote if I wanted to. I couldn’t even go get my own doctor care.”

Attempting to restore her rights through the courts, however, quickly became a painful and costly struggle, Powers says.

Though she had a doctor’s assessment filed with the court saying that she had the “capacity to independently and responsibly make decisions with regard to health care, finances, and living environment,” the guardianship remained in place for months. The resistance from her guardian and attorneys, Powers insists, hinged on a lawsuit filed on her behalf blaming an auto manufacturer for her accident, claiming her vehicle malfunctioned. “I think some people are trying to collect on whatever comes out of that,” she said.

After Powers became obstinate and frustrated in court last year, and began writing emails to the court investigator and guardian begging to get her life back, Judge Rickhoff ordered her into a five-day psychiatric evaluation at Nix Health, deeming her a threat to others.

“I’m disabled, I’m 50 years old, I was just in the hospital. How could I be a threat?”

A doctor’s evaluation, filed in court, later noted, “Joy’s failure to respond to requests for information and instead pose her own questions seems to stem from a resistance to the continual imposition of guardianship and the seeking of a successor guardian rather than an inability to process such informational requests.”

Powers regained her rights earlier this year, but in the process, she said, “They raided my bank accounts.” She’s already paid over $30,000 in court-appointed attorneys fees from her limited income, she said. Another lawyer in the case is still seeking an additional $10,000 in fees, she said.

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When Mary Dahlman’s mental state began to be questioned in Judge Rickhoff’s court, the central disagreement became whether Dahlman was generous or exploited.

Dahlman’s guardian ad litem, William Bailey, and other attorneys in court painted the picture of a woman hopelessly aloof, inept, and incompetent, taken advantage of by con men and willing to throw away her sizeable trust on needless and hopeless causes. In a report he filed with the court Bailey outlines how, when asked, Dahlman greatly underestimated how much she’d paid out to close friends and her nephew over a four year period — just over $400,000. Bailey in his report says Dahlman’s “lack of a family relationship,” is reason for concern, saying she’s self-isolated from her grandchildren and daughters, adding, “Ordinarily in life, a relationship with your children and grandchildren would be a source of great satisfaction.”

In an interview with the Current in July, Dahlman outlined and justified many of the expenses flagged in Bailey’s report as questionable, like a car she bought for her nephew, a friend she paid over $10,000 for French lessons over four years, and large donations to help with remodeling costs at her church. “Why can’t I spend my money the way I want to?” she asked.

Dahlman once got $20,000 a month income from her mother’s trust, but early this year, when Judge Rickhoff’s court began investigating whether she was fit to manage her money, Falcon Bank cut her disbursement to $5,000 monthly, leaving her in a bind, Dahlman’s attorney Phil Ross says.*

The income wasn’t enough to pay for property taxes on her estate, let alone insurance bills and medical expenses. Then, the Friday before Memorial Day, Dahlman’s daughters applied to have the court appoint a guadian. “It looked like they were going to freeze all of Mary’s assets,” Ross said. “They were going to freeze all her cash, her accounts, property, and tie her hands so she couldn’t pursue litigation.”

Ross filed a motion to recuse Rickhoff from the case — thus allowing Dahlman time to breathe — and in the process shone a spotlight on a dirty little secret underlying the whole system: judges who pay attorneys who help them get elected.

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Lawyers who do probate work depend on judges to assign them to cases that can often pay out substantial fees — in the case of guardianship, sometimes as long as the ward is alive — sometimes on the order of hundreds of thousands of dollars. And those probate judges rely on many of those same lawyers to chip in and support their campaigns when election time rolls around. It’s a practice that’s common and legal, but one that critics argue casts a pall over the whole system, encouraging judges to favor attorneys who help boost turnout at the ballot box.

When Ross tried to recuse Rickhoff from Dahlman’s case, he pointed to the judge’s relationship with attorneys William Bailey, appointed to investigate Dahlman’s finances, and Mark Stanton Smith, representing Falcon Bank and therefore present throughout Dahlman’s guardianship case.

At a late May recusal hearing before Administrative Law Judge David Peeples, Ross put Smith on the stand. Smith testified to a 2010 meeting where he, Bailey, and other probate attorneys gathered at a law office around two bottles of scotch and cases of beer. Rickhoff dropped by the meeting armed with a list of attorneys’ names who could be swayed into donating cash to the re-election effort. Smith and Bailey both testified they had contributed to Rickhoff’s campaign, though Bailey groused on the stand that his fundraising for Rickhoff wouldn’t have any affect in court.

Smith testified to two such meetings in 2010 and others in 2006, at least one of which played host to U.S. Congressman Lamar Smith.

When the Current called the Bexar County elections office to review campaign finance records for the 2010 election, the office said everything filed prior to July 2010 for Rickhoff’s campaign had been shredded. The county is only required by law to keep such records on file for 22 months, the office said. However, the county still had records on file for Bexar County Probate Court 1 Judge Polly Jackson Spencer going back to 2009.

Ross insisted the fundraising could make Rickhoff unfairly favor Smith, who he says has an interest in seeing Dahlman appointed a guardian, and Bailey in the guardianship case. “As it turned out half the lawyers that were in her case were on this informal committee for Rickhoff,” Ross said. “But Judge Peeples said there wasn’t enough smoke to see if we needed to look for some fire.” Rickhoff was allowed to stay on the case.

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Peeples and Ross might have looked to fees awarded in Rickhoff’s court for more smoke.

The state Office of Court Administration began collecting electronic reports on fees for the first time in 2009, following a state Supreme Court initiative to boost accountability in light of long-standing claims about judges’ alleged favoritism toward particular lawyers practicing in their courts. Each year thousands of people’s lives and deaths end up in the hands of probate judges in Texas, who hold sweeping power over their liberty and assets. And naturally those probate fees can be controversial, as they’re often drawn from the private accounts or estates of the people the courts are charged with safeguarding.

Advocates like Debby Valdez allege the system makes it too easy for attorneys to drain estates through long, drawn-out litigation, with judges scratching the backs of attorneys who helped them get re-elected.

“Every court, whether it’s probate or some other court, the judges are going to make sure they’ve taken care of their own,” one local longtime probate attorney told the Current.

In the cases of Dahlman and her brother, who was also investigated as to whether he could take care of himself, Smith’s firm reaped nearly $140,000 from Dahlman’s trust between January 2011 and May 2012. Rickhoff appointed Bailey roughly $40,000 for his investigation into

Dahlman, which argued against the testimony of three forensic psychiatrists, and $18,000 for an investigation into Dahlman’s brother.

According to OCA and Bexar County records, Bailey was also awarded $124,000 in fees for two other probate cases between September 2011 and June 2012, making him by far the largest recipient of the $401,647 in fees Rickhoff paid out so far this fiscal year (the next highest-paid attorney got $17,000 from Rickhoff across multiple probate cases).

When reached by phone last week, Rickhoff said he couldn’t comment on Dahlman’s case, but insisted there’s no favoritism in how he appoints attorneys. “I think there were only three (attorneys) that didn’t support me, so they’re all contributing, they all support me,” he said, adding, “What can you do about it?” He also said there are “some really reliable, heavy-hitters who are real trustworthy,” like Bailey, who come through his court, that he assigns to complex cases.

In a fax he later sent to the Current, Rickhoff wrote, “Since I pay lawyers the least of all probate judges in the State of Texas, I am surprised that any of them support me or that I am criticized for paying too much.”

OCA records, which Rickhoff and others claim to be inaccurate, show that in fiscal 2011 Rickhoff approved $1.84 million in fees to attorneys in his court, slightly below Bexar County Probate Judge Spencer, who approved $1.94 million in fees that year.

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One of the first things 88-year-old World War II veteran Jack Hood tells you is that he doesn’t suffer fools gladly.

Hood wound up before Rickhoff two years ago while battling for guardianship over the estate he shares with his wife of 35 years, Billie Ray Hood, who suffers from Alzheimer’s.

Hood’s stepdaughter and her attorney have argued Hood isn’t qualified to take care of his wife or manage the assets he shares with her. Last year Rickhoff signed an order channeling much of what Hood and his wife own to Hood’s stepdaughter, who Hood says has mismanaged the money.

Section 883 of the Texas Probate Code says that when one spouse is incapacitated the other “acquires full power to manage, control, and dispose of the entire community estate as community administrator.” It’s a section of the probate code Rickhoff overlooked. And as the court battle dragged on, Rickhoff twice sought rulings on Hood’s competency, the first step down that road of appointing a guardian. “Frankly, I’m starting to think Jack is always unhappy, you know. He is just an unhappy guy,” transcripts from hearings last year quote Rickhoff as saying. The judge later insisted Hood might be more happy moving out of the home he shares with his wife. “If you don’t mind, is there any way Jack would want to have his own little man cave somewhere and come home and watch TV as he wishes,” Rickhoff asks Hood’s lawyer, Claudia Smith, “and have any kind of little TV, a big TV, whatever TV he wants, and go see the guys.”

As the case played out, Rickhoff continued to assert Hood may be incapacitated. “The federal government, I’ll tell you folks, this doesn’t mean it applies to him, but the statistic is that everybody in America who is 85 has some dementia. … I used to say to y’all that it might be part of his condition that he is having with all these recalcitrant problems.”

Claudia Smith and others who have practiced in Rickhoff’s court say they’re troubled by off-record in-chambers meetings where deals are worked and the judge makes up his mind. When Smith went before the state’s Fourth Court of Appeals trying to overturn Rickhoff’s ruling in the case, she said she was never given the opportunity to put Hood on the stand to give reasons why he should be appointed guardian of his wife.

“When you’re in Judge Rickhoff’s court, nine times out of 10 the first thing you do is come into chambers and have an informal chat,” said attorney Laura Cavaretta, arguing against the appeal. “And I think, unfortunately, a lot of things get resolved that way. It’s kind of everybody’s sort of agreed this is what we’re going to do and then we go out and make a record.”

The Fourth Court reversed Rickhoff’s order giving Hood’s stepdaughter control over much of the property he owns with his wife. And soon after Express-News columnist Brian Chasnoff wrote about the hearing Rickhoff recused himself from the case. In February, Hood filed a complaint with the State Commission on Judicial Conduct against Rickhoff, writing, “At no time did the Judge allow evidence, nor was I ever told on record why I was not chosen guardian of my wife of over 30 years.”

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GRADE’s Valdez became active in guardianship reform because of her daughter, who has intellectual disabilities. A long, drawn-out case stretching between probate courts in Bexar and Travis counties highlights the fears that pushed her to get involved.

The case involves Marie Bergman and her daughter Sheri, now in her 50s, who also has intellectual disabilities. Decades ago, after a bitter divorce with her husband, a Bexar County probate court appointed an attorney as guardian over Sheri in lieu of her mother, though court records give no hint as to why she was disqualified. A 1997 order appointed a local probate attorney, Amy Bitter, as a successor guardian for Sheri — strangely, court documents refer to Bitter as “aunt of the ward,” which she is not. The following year Bitter filed a sweeping set of restrictions with the court claiming Marie Bergman’s visits were “detrimental.” Bitter also wrote that Marie was late returning her daughter to her long-term care facility after one weekend visit (Marie said she was using public transportation at the time).

Under the court-appointed guardian’s rules, Marie has only been allowed to see her daughter one hour each month in visits accompanied by nursing staff. “If asked to leave, Ms. Bergman must comply immediately and quietly,” reads the order filed in court restricting her visits. “Failure to do so will result in termination of visits for a period of three months.”

In 2011 Bitter resigned as Sheri’s guardian, and Family Eldercare, a guardianship services program, was appointed as a successor. The case was transferred from Bexar to Travis County and Bergman moved from San Antonio to Austin to be closer to the facility where Family Eldercare is keeping her daughter.

Late last month Family Eldercare terminated Marie’s visits with Sheri after an August 15 visit she, Valdez, and Bergman’s neighbor, Norman Jacobson, had with Sheri and a Family Eldercare representative. When the three raised concerns over the restrictive visits, the meeting ended, Valdez said.

Two days later Bergman got a call from Family Eldercare saying visits had been indefinitely suspended. The following week, caseworkers with Adult Protective Services attempted to contact Jacobson, 74, to investigate whether he was being exploited or abused. Jacobson, who refused to meet with the Current in Austin and would only speak briefly by phone, insists he’s not incapacitated. “Somebody reported that I was abused, but that’s false,” he said. APS says its reports are confidential, and calls and emails made to Family Eldercare have not been returned.

By phone, Marie Bergman said, “I was only allowed to visit one hour with my daughter. Now I’m not allowed to see her at all.”

Valdez and others in her corner insist the courts need greater oversight from the state to ensure the vulnerable and elderly aren’t forced into nursing homes or institutionalized without first considering all least restrictive options first, truly making guardianship a last resort. And private guardianship programs need to be ended or closely watched, Valdez insists, saying deep reforms are needed to make sure guardianships are about protection, not money.

Judge Spencer says there’s the need to create a guardianship program in Bexar County, something akin to Tarrant County’s Guardianship Services Inc., to better manage exploding caseloads. “We’ve been having an active conversation about creating something like that.” But guardianship reform activists have warned that Tarrant County’s model, which began as a volunteer program to help the old and vulnerable, quickly grew into a troubling coalition of judges, attorneys, care providers and quasi-governmental nonprofit employees as detailed by previous Fort Worth Weekly stories by Jeff Prince.

Spencer says she understands the concern. “But those concerns only address kind of the way the programs have been effectuated, not the fact that it is a needed program. I think almost anybody would agree with that.”

Almost anybody.

*Originally reported as the court cut her disbursement to $5,000. The Current regrets the error.

Attribution:

How judges, probate attorneys, and guardianship orgs abuse the vulnerable
Michael Barajas
September 6, 2012
San Antonio Current
http://m.sacurrent.com/news/how-judges-probate-attorneys-and-guardianship-orgs-abuse-the-vulnerable-1.1367105

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