Supreme Court chief justice tackles senior guardianship as complaints mount

The complaints emanate from all over the state and really the nation: Seniors and others found incapacitated by the courts too often are treated like piggy banks by professional guardians who put their fees above the needs of the ward.

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Concerns about seniors in guardianships have sparked protests outside of courthouses in Palm Beach County.
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Florida Supreme Court Chief Justice Jorge Labarga

Florida Chief Justice Jorge Labarga on Monday announced members of a task force that will focus on guardianship issues facing Florida’s courts.

He said few decisions are more challenging to a judge than removing a person’s rights because they are no longer capable of making decisions independently.

The Palm Beach Post, LaBarga’s hometown newspaper, has reported extensively on guardianship, particularly how one judge and his wife benefited from it in Guardianships: A Broken Trust. The stories resulted in an overhaul of the system in Palm Beach County courts. Circuit Judge Martin Colin announced his retirement after the stories.

However, Colin’s wife, Elizabeth Savitt, continues to serve as a professional guardian despite increasing complaints by loved ones of her incapacitated wards. She has taken tens of thousands of dollars from seniors’s bank accounts prior to judicial approval, The Post found.

Savitt is often defended by Boca Raton attorney Ellen Morris, who recently sent a letter to the Department of Elder Affairs opposing proposed rules to regulate professional guardians. The six-page letter outlines a series of complaints and says the “rule proposals can not be implemented without extensive challenge and litigation.”

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Glenda Martinez Smith has won repeated appeals against the guardian appointed for her husband, J. Alan Smith. She has a case pending in front of the Florida Supreme Court on the annulment of her marriage.

Morris is the chair of the Elder Law Section of the Florida Bar and has argued — in the letter and repeatedly on behalf of Savitt — that professional guardians can take fees from a senior’s life savings before a judge approves them.

The Post spoke to numerous guardianship attorneys and none reads state statute as allowing guardians to take fees prior to  judicial approval.

Morris did not respond to an e-mail inquiry about her letter.

In a news release, Labarga, who lives in Welllington, said he created the work group because guardianship  caseloads are increasing in number and complexity.

“As Florida grows and ages, we can expect more and more cases dealing with guardianship issues to come into our courts,” Labarga said.

Individuals found incapacitated by the court are appointed a guardian. If a family member is not available, often a professional guardian steps in with complete control of the senior’s finances, medical decisions and housing.

In Florida and across the nation, professional guardians have been found to act in their own interests and not those of the incapacitated ward. Families of seniors have found themselves unable to battle professional guardians, who often employ legions of attorneys paid for by the incapacitated senior.

Florida’s guardianship system assists and protects individuals judged by a court to be unable to make decisions for themselves. When appointed by the court, guardians can make decisions about an individual’s care, finances or property on their behalf.

Elizabeth Savitt appears at a hearing with Attorney Sheri Hazeltine to discuss attorney fees for Albert Bach on Thursday, August 20, 2015 at the South County Courthouse in Delray Beach. Elizabeth Savitt is the wife of Judge Martin Colin and also a professional guardian. (Madeline Gray / The Palm Beach Post)
Elizabeth Savitt appears at a guardianship hearing.  (Madeline Gray / The Palm Beach Post)

The Guardianship Workgroup established under the Court’s Judicial Management Council, will advise the chief justice and the Supreme Court on long-range issues confronting Florida’s judiciary.

Highlands County Circuit Judge Olin Shinholser, a member of the JMC, will serve as chair. He said there is too often conflict between the needs and desires of the ward — often a senior battling dementia — and the guardian, caregivers and even the family.

“Comments and complaints from various stakeholders are indicative that we need to take a closer look at whether the rules and procedures in place accomplish the balance needed,” he said.

State lawmakers passed laws in the last two legislative sessions to increase the state’s regulation and oversight of guardians.

Judge Martin Colin presides over a hearing on Thursday, August 20, 2015 at the South County Courthouse in Delray Beach. Judge Colin's wife Elizabeth Savitt, who is a professional guardian, was simultaneously participating in a hearing in another courtroom with Attorney Sheri Hazeltine. (Madeline Gray / The Palm Beach Post)
Judge Martin Colin announced his retirement after The Palm Beach Post reported on vast conflict of interest regarding adult guardianship. (Madeline Gray / The Palm Beach Post)

“This is an appropriate time to re-evaluate our system and determine if the courts are doing everything possible to meet the needs of everyone involved,” Labarga said. “It’s imperative we stay proactive in this area and provide real solutions to emerging issues.”

The work group will tackle a number of guardianship issues, including restoration of capacity for the senior or person put in a guardianship. Costs — which usually mean fees for the guardian and at least one lawyer — will also be addressed.

An interim report is due to the Court by October 2017 and a final report is due to the Court by September 2018.

Besides Shinholser, other members of the work group include:

  • Judge Robert Lee, Broward County, Fort Lauderdale
  • Judge Michelle Morley, 5th Circuit, Bushnell
  • Judge Peter Dearing, 4th Circuit, Jacksonville
  • Judge Maria Korvick, 11th Circuit, Miami
  • Jason Nelson, Office of Public and Professional Guardians, Florida Department of Elder Affairs, Tallahassee
  • Laird Lile, Lile & Hayes, PLLC, Naples
  • Andrew Sasso, Macfarlane Ferguson & McMullen, Clearwater
  • Karen Campbell,  North Florida Office of Public Guardian, Tallahassee
  • Vicki Alkire,  Viable Alternatives, Inc., Sarasota

“Further evaluating guardianship practices supports the branch’s goal of ensuring that court procedures and operations are easily understandable and user-friendly and supports our mission to protect rights and liberties of all,” Shinholser said.

 

Florida Supreme Court accepts guardianship case on marriage annulment

The Florida Supreme Court has officially accepted jurisdiction of Palm Beach County case on whether a court-appointed guardian can seek to annul a marriage of a senior citizen found to be incapacitated.

The annulment issue has surfaced recently in at least two guardianship cases in Palm Beach County – both involving elder law and special needs attorney Ellen Morris of Boca Raton.

 

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J. Alan Smith and Glenda Martinez Smith have fought to reverse the annulment of their 2011 marriage at the behest of a professional guardian. The case will be heard by the Florida Supreme Court.

Morris represented guardian John Cramer in the case in question involving 85-year-old J. Alan Smith. She also represented Elizabeth Savitt in the case involving senior Robert Paul Wein where she sought authority from the court to annul a 1959 marriage. Wein died before the issue was settled.

Concerns about Florida professional guardians in recent yearshave result in the state Legislature passing the state’s first regulatory authority over the industry that cares for adults and seniors found to be incapacitated by illness, such as Alzheimer’s disease.

 

Robert and Vita Wein. Vita Wein says professional guardian Elizabeth Savitt has worked to break up the couple, who were married in 1958..
The late Robert  Wein with his and wife Vita last year. The couple fought to keep their 1958 marriage from being annulled by professional guardian Elizabeth Savitt.

The Smith case has already set precedent when the 4th District Court of Appeal ruled that a senior’s advance directive naming a health care surrogate  must be followed by the court and not usurped by the appointed professional guardian.

Currently, Smith is being cared for by the woman he married, Glenda Martinez Smith. She is now fighting to reverse the decision by Circuit Judge David French to annul the marriage at behest of the guardian.

The 4th DCA in July certified a question of great public importance on whether incapacitated individuals can retain the rights to marry. The Supreme Court on Aug. 25 accepted the case and ordered attorneys to submit briefs by next week.

An annulment can be a fee generator for  guardians and the attorneys who represents them. The Post reported in its series Guardianship: A Broken Trust how annulment proceedings initiated by a guardian can drain the estate of the senior and cost loved ones tens of thousands of dollars in court fees fighting it.

Vita Wein told The Palm Beach Post that Savitt – who is married to Circuit Judge Martin Colin – aimed not only to generate fees but to cut her out of any of her husband’s inheritance and social security money in order to benefit relatives of her husband.

Elizabeth Savitt appears at a hearing with Attorney Sheri Hazeltine to discuss attorney fees for Albert Bach on Thursday, August 20, 2015 at the South County Courthouse in Delray Beach. Elizabeth Savitt is the wife of Judge Martin Colin and also a professional guardian. (Madeline Gray / The Palm Beach Post)
Professional guardian Elizabeth Savitt  (Madeline Gray / The Palm Beach Post)

Survey: Living wills of Incapacitated seniors ignored in guardianship

The South Florida advocacy group that pushed lawmakers to pass current reforms in adult guardianship asked its membership about their legal experiences. The finding gives a snapshot of a very broken system that is very lucrative for a handful of professionals and their attorneys.

The foremost finding of survey is that in more than three-quarters of cases judges ignored advanced directives of seniors and instead appointed a professional guardian, thus rendering carefully planned living wills moot.

Retired Hollywood physician Sam Sugar, who co-founded Americans Against Abusive Probate Guardianship, said the survey went out to 285 members and that he received 67 responses from throughout the country.

His group says many professional guardians appointed to oversee the lives of incapacitated adults – a majority of them seniors with dementia – often take financial advantage of these vulnerable citizens and work with attorneys to drain assets and property. As plenary guardians they have complete control over their assets.

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Dr. Sam Sugar, co-founder of Americans Against Abusive Probate Guardianship.

In the meantime, the family of these so-called wards find themselves powerless because judges are often complicit and allow the ransacking of the senior’s life savings. The problems in adult guardianship can be found nationwide as more baby boomers live longer their heirs and are more vulnerable to dementia and other degenerative diseases.

The Palm Beach Post in its series, Guardianships: A Broken Trust, revealed the incestuous nature of guardianship and how money from the savings of incapacitated seniors flowed into the household of Circuit Judge Martin Colin through his wife, professional guardian Elizabeth “Betsy” Savitt.

Palm Beach County Chief Circuit Judge Jeffrey Colbath  — in a series of reforms announced in the wake of the series —  transferred Judge Colin out of the Probate & Guardianship Division. Colin announced his retirement.

His wife’s cases were all moved to the North County Courthouse to prevent an appearance of favoritism by Colin’s closest colleagues but she continues to operate.

Judge Martin Colin presides over a hearing on Thursday, August 20, 2015 at the South County Courthouse in Delray Beach. Judge Colin's wife Elizabeth Savitt, who is a professional guardian, was simultaneously participating in a hearing in another courtroom with Attorney Sheri Hazeltine. (Madeline Gray / The Palm Beach Post)
Judge Martin Colin presides over a hearing. (Madeline Gray / The Palm Beach Post)

 

Elizabeth Savitt appears at a hearing with Attorney Sheri Hazeltine to discuss attorney fees for Albert Bach on Thursday, August 20, 2015 at the South County Courthouse in Delray Beach. Elizabeth Savitt is the wife of Judge Martin Colin and also a professional guardian. (Madeline Gray / The Palm Beach Post)
Elizabeth Savitt appears at a hearing  (Madeline Gray / The Palm Beach Post)

The Florida Legislature in the last two years has passed reforms to give the state its first regulatory authority over professional guardians and to hold them criminally accountable when they defraud the wards in their care.

Sugar said ignoring pre-need directives is a violation of due process for the incapacitated seniors and “spits in the face of our American notions of fair play, civil rights and justice.”

“This racket is unfettered, growing, predatory, and operates with absolute impunity because of the involvement of elected judges who function without supervision or monitoring or juries,” Sugar said.

In a landmark case, the Fourth District Court of Appeal in West Palm Beach last year ruled that pre-need directives must be followed by the judge when determining a guardian.

The questionnaire also found 30 percent of guardianships are switched from public to private guardianship and back.

“This tactic is used by abusive guardians and their attorneys to maximize their cash flow since in many public guardianships for destitute individuals are prohibited from selling any property the ward might own,” Sugar said. “In switching back and forth between public and private guardianship the predators guarantee that they will take every possible dollar from every possible source.”

More than 80 percent of those who sent in survey said they believed the judge who appointed the professional guardian were improperly influenced. About 65 percent of respondents believe the judge was responsible for the abuse in their cases.

Nearly 50 percent said their loved ones were isolated from their family by professional guardians and over-medicated.

All the results of the AAAPG survey can be found by clicking here.

 

Marriage annulment upheld in controversial guardianship case

In a decision underscoring the great power of the courts over seniors in guardianships, an appellate court in West Palm Beach upheld the annulment of a couple’s marriage in a controversial case that has already set legal precedent.

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Glenda Martinez Smith smiles as her husband Alan Smith opens his eyes while waiting for a doctor’s appointment last year. (Richard Graulich / The Palm Beach Post)

A panel of judges on the 4th District Court of Appeal ruled 2-1 to uphold the annulment of the marriage of Glenda Martinez and J. Alan Smith.

The Palm Beach Post wrote about the case last April after Martinez won the right to care for Smith as he had specified in his pre-need directives before falling ill. The case showed how incapacitated seniors’ legal rights were taken away in guardianships.

Even though Martinez succeeded in ousting the guardian last year, she was not able to convince the 4th DCA to undo Palm Beach County Circuit Judge David French’s ruling to annul the couple’s marriage.

Judge David French listens to arguments at the South County Courthouse Thursday, May 21, 2015, during a hearing surrounding the guardianship of James Vassallo's father. (Damon Higgins/The Palm Beach Post)
Judge David French listens to arguments in a case at the South County Courthouse. (Damon Higgins/The Palm Beach Post)

The majority of the 4th DCA appellate panel – Judges Dorian Damoorgian and Melanie May – said the couple married without the approval of French as stipulated by the guardianship of Smith.

Martinez’s attorney Jennifer Carroll argued that the requirement flew in the face of state statute, but Damoorgian said in the written ruling that a court could indeed make such a requirement.

Judge Martha Warner, however, in a 8-1/2 page dissenting opinion, said the right to marry is a fundamental right guaranteed by the U.S. Constitution. The dissent possibly sets up the case for the Florida Supreme Court to look at the issue.

Warner noted evidence of how Martinez and Smith fell in love, vacationed together and how he named her his health care surrogate before a 2010 car accident sent his health on the decline. Warner said the only restriction put on Smith by the guardianship was the right to enter into contracts regarding finances.

Warner also noted how Martinez opposed court-appointed guardian John Cramer’s decision to put Smith in a nursing home, where Martinez felt Smith received sub-par care and how a court-appointed attorney to represent Smith failed him.

The 4th DCA eventually ruled that Martinez – not Cramer – was Smith’s designated health surrogate. She brought him home last year and takes care of him to this day

“I do not believe due process of the ward was sufficiently protected,” Warner wrote, adding that the Legislature’s intent in guardianship is to protect the rights of the ward, not infringe upon them.

“This has not happened in this case,” the judge went on. “Instead, this frail gentlemen has been deprived of his fundamental right to marry, in proceedings which violated his fundamental rights to due process and without a consideration of his best interest.”

In January, The Post published its investigative series into guardianship of seniors and the role of judges. One judge in particular, Martin Colin, is married to guardian and his friend, French, heard the majority of her cases. As a result, Chief Judge Jeffrey Colbath transferred Colin and instituted a plan to train court personnel on probate matters, among other reforms.

Post investigation: Another blow to Judge Colin

After weeks of speculation, the chief judge confirmed that Palm Beach County Circuit Judge Martin Colin is out as coordinator of a new guardianship program to resolve family disputes.

Chief Judge Jeffrey Colbath transferred Colin from the Probate & Guardianship Division – as well as the family division – following The Palm Beach Post’s investigation into Colin. Now Colin is out as coordinator of the Eldercare Coordination Program, thus severing all ties with adult guardianship.

Judge Martin Colin presides over a hearing on Thursday, August 20, 2015 at the South County Courthouse in Delray Beach. Judge Colin's wife Elizabeth Savitt, who is a professional guardian, was simultaneously participating in a hearing in another courtroom with Attorney Sheri Hazeltine. (Madeline Gray / The Palm Beach Post)
Judge Martin Colin now has no ties to adult guardianship following latest move by chief judge. (Madeline Gray / The Palm Beach Post)

Colin’s wife – Elizabeth “Betsy” Savitt – works as a professional guardian for incapacitated seniors and adults. The Post found numerous complaints about Savitt taking tens of thousands of dollars in fees without judicial approval, double-billing and funneling cash to suspect family members of the seniors in her care.

Her work as a guardian created what a former Florida Supreme Court justice dubbed an appearance of impropriety for Colin and conflicts for the judiciary as a whole. Colin wouldn’t hear Savitt’s cases, but did allow for years attorneys who represented his wife and referred her guardianship cases to appear before him. Colin would at times grant lucrative fees to these attorneys.

In the meantime, families said Colin’s colleagues would turn a blind eye to their complaints about Savitt – particularly Circuit Judge David French, reportedly a friend of Colin and Savitt.

Elizabeth Savitt appears at a hearing with Attorney Sheri Hazeltine to discuss attorney fees for Albert Bach on Thursday, August 20, 2015 at the South County Courthouse in Delray Beach. Elizabeth Savitt is the wife of Judge Martin Colin and also a professional guardian. (Madeline Gray / The Palm Beach Post)
Families say Colin’s fellow judges turned a blind eyes to their complaints about his wife, professional guardian Elizabeth Savitt . (Madeline Gray / The Palm Beach Post)

Besides his job as judge, Colin helped coordinate the Eldercare program,  which sought to resolve disputes among family members of seniors in guardianships. The program uses professionals – such as psychologists, lawyers and former judges – to sit down with families over a two-year span in hopes of resolving issues over money and care.

Circuit Judge Janice Brustares Keyser will now oversee the program, which is still in its infant stages but aims to save money by decreasing litigation in court. Some guardianship attorneys make thousands of dollars in fees – taken from the seniors’ accounts – by exploiting family discord, according to guardianship reform advocates.