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Business Observer Friday, Apr. 30, 2004 18 years ago

Guarding the Guardians (Tampa edition)

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The Pinellas County judiciary pushes more secrecy surrounding guardianships. Hillsborough County lets the sun shine in.

Guarding the Guardians (Tampa edition)

The Pinellas County judiciary pushes more secrecy surrounding guardianships. Hillsborough County lets the sun shine in.

By Francis X. Gilpin

Associate Editor

"Hillsborough County is a shining example."

It's not every day that those words are uttered to describe Hillsborough's much-investigated judiciary. But those are exactly the words that Robert W. Melton chose to use.

The top auditor for Pinellas County Circuit Court Clerk Karleen F. DeBlaker praised the Hillsborough judiciary at a recent local hearing of a state task force on guardianships. Melton cheered the fact that all initial, annual and final reports as well as amendments filed in guardianship cases within the 13th Judicial Circuit are open to public inspection.

A 1990 administrative order, signed by then-Chief Judge F. Dennis Alvarez, should be a model for the entire state, Melton told the task force.

The 10-member panel, chaired by Pasco County Circuit Clerk Jed Pittman, held its fifth public hearing April 23 in Gulfport at the main campus of Stetson University's College of Law. Florida legislators created the task force last year to explore reform of the state's guardianship system.

To hear Melton tell it, additional safeguards are overdue. His office began a systematic review in 2003 of how well court-appointed professional guardians in Pinellas are handling the finances and personal affairs of their wards, who are usually mentally or physically incapable of doing so themselves. (See "Guardian Angles," GCBR, Feb. 20-26.)

"Ladies and gentlemen," Melton told the task force in his prepared statement, "the practices I have seen in the short time I have been involved in guardianships is shocking. It is time to put an end to unscrupulous practices at the expense of our state's most vulnerable citizens."

Melton says the assets of wards are being transferred into pooled trusts that operate imprudently outside the supervision of the courts. He adds that the real estate of wards is being sold at below-market prices to land trusts, whose beneficial owners don't have to be disclosed.

One way to prevent improprieties, according to Melton, would be to make public the initial inventories of wards' estates and the annual accountings of assets that guardians are required to file with the court. "The lack of public scrutiny breeds misdeeds and misappropriations because people who may know the truth would not have access," says Melton.

The accountings are generally sealed in most Florida court jurisdictions, out of respect for the privacy of wards.

Hillsborough opens up inventories and accountings. But Melton says Pinellas judges not only keep those court records hidden from public view, but they are anxious to extend the cloak of secrecy to the audits that his office performs.

"When we have both guardians and judges trying to keep auditors out, we have a system ripe for corruption and fraud," Melton told the task force.

David A. Demers, chief judge of the Sixth Circuit covering Pinellas and Pasco, has state law on his side. One task force member emphasized that point to Melton.

"Let's talk about public records," said Mel Grossman, a Broward County probate judge. "You mentioned Hillsborough County. You are aware - are you not, sir - that administrative order is in complete contravention of state statute?"

When Melton didn't respond directly, Grossman repeated himself. "Do you understand that order is not in compliance with Florida statute?" Grossman asked Melton. "Florida statute provides that those records are confidential and are only available to guardians, guardians' attorneys, the court's attorneys, or other persons as determined by the court."

Alvarez, in his 1990 order, acknowledged as much. But Alvarez also noted that the statute "permits the court of jurisdiction to order otherwise." Then, Alvarez proceeded to order otherwise for all 13th Circuit guardianships. The 14-year-old order stands to this day.

DeBlaker and Alvarez served together on an earlier state panel that examined guardianship law in Florida.

Her home county has historically resisted guardianship reform, says Alvarez, who now specializes in guardianship and trust law in private practice. "Pinellas has always been a problem," Alvarez says. "I don't know why."

Ron Stuart, a spokesman for Demers, told GCBR after the hearing that the chief judge simply wants DeBlaker and her auditors to follow the law.

"Absurd" was the reaction of George W. Greer, a Pinellas circuit judge who hears probate cases, to Melton's proposal for more openness in guardianships.

"Splash the wards' Social Security numbers all over the public record so we have more identity theft," Greer told GCBR after the hearing. "I'm at a loss to see what that would accomplish."

As for auditing guardianships, Melton told the task force that his office is getting stonewalled.

"In Pinellas County, attempts are being made to limit the clerk's audit authority," Melton said. "This ranges from guardians that refuse to submit to an audit unless a court order is received, to judges that question the authority of the clerk to use professional auditing staff to conduct the audits."

Grossman asked Melton several times if a Pinellas judge had ever prevented clerk's auditors from examining the entire record of a guardianship case. "Again, I don't want to get into confidential communications," Melton replied. "But it would be fair to say the court has."

Guardians are rebuffing Pinellas auditors who seek financial and other records of wards, says Melton. He indicated that DeBlaker is in delicate negotiations with Demers over whether court orders compelling guardians to produce the records will be forthcoming.

"I can say that the judges are disinclined to let professional auditors get involved in audits for professional guardianships," Melton told Grossman.

"But you don't want to give any more details to this task force?" Grossman asked.

Citing the sensitive nature of the discussions between DeBlaker and the chief judge, Melton told Grossman that he would be happy to testify at a later date.

A representative of the financial services industry serving on the task force praised the trust arrangements that Melton found problematic. Randy Pople, president and chief executive of Capital City Trust Co. in Tallahassee, says busy probate judges haven't objected to turning over control of a ward's assets to a trustee. "I would really think that would be something that would be welcome in an overburdened system," Pople told Melton.

Pooled trusts are promoted as a legal method for wards to maintain Medicaid eligibility in nursing homes.

Largo professional guardian Patricia F. Johnson, whose care of wards has been questioned by Melton, also stood up for the status quo. "I'm really proud of our probate system," Johnson told the task force.

Johnson passionately defended her profession. "I have gone through places kicking rats out of the way," she told the task force. "I have gone through houses where the tub has been used as a toilet, for year after year after year. I've gone to places you won't go to."

She allowed that the system needs tweaking. "We desperately, desperately, desperately need an office of public guardian in Pinellas County," said Johnson, who has worked for a similar office at the state level.

Between 40% and 60% of her current 20 to 30 cases were opened for indigent wards, Johnson estimates. She admitted that she has handled as many as 50 guardianships in the past.

DeBlaker had urged the task force to recommend that lawmakers limit the number of wards assigned to a single guardian.

"It is inconceivable that one professional guardian, even assuming they have hired staff to assist them, could possibly provide each and every one of those 50 wards the level of attention that they would need," DeBlaker stated in her prepared remarks. "This is an area ripe for fraud and where most fraud abuse has in fact occurred."

Greer says he sees more potential for financial abuse by immediate family members who create guardianships or gain power-of-attorney status than by professional guardians.

"We have to be careful in how we're banging on these professional guardians," says Greer, who referred to Melton during a GCBR interview as DeBlaker's "hit man."

Johnson told the task force that professional guardians aren't getting rich.

"Any one of you who think we're making a bunch of money - we have no retirement, we have no sick days, we have no holidays, we have no vacation days," Johnson said. "I'm 58 years old. I've done this for 18 years. Social Security keeps saying, 'Oh, no, a couple more years before you can draw that pension check.' I'm going to need a guardian before I qualify for Social Security."

The audience of about 50 people in Stetson's Great Hall, which included a few guardians, chuckled at Johnson's testimony. Some then applauded. Other guardians sought more technical changes than the sweeping reforms advocated by DeBlaker and Melton.

Just when it sounded like there was more right than wrong with Florida's guardianship system, Eileen M. Nave came to the microphone.

Nave, a paralegal at the Tampa law firm of Fowler White Boggs Banker PA, recounted her personal nightmare of trying to wrest control of her mother's affairs from a guardian, the guardian's lawyer and probate judges in Seminole County.

Using her job skills, Nave assembled and passed out a stack of legal documents that offer a sampling of what she says she is up against.

The court refuses to inquire about $500,000 that Nave says went missing after another family member took her mother to Las Vegas without Nave's permission.

The guardian billed the estate of Nave's mother at a rate of $75 an hour for a single telephone call lasting longer than 10 hours. Nave says a judge approved the bill and nobody questioned the payment until she did.

Nave, a Largo resident, wants to her nursing-homebound mother moved to Pinellas to be closer to her. But Nave says the guardian is fighting the request with contradictory medical opinions about the elderly woman's suitability for travel.

"There is nobody guarding the guardians," Nave told the task force. "Unfortunately, the courts don't want to hear anything."

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