27 September 2013

Guardianship Dangers!

If you care about you or your loved one's well being, I urge you to please read this entry word for word.  In fact, may I suggest my topic on Guardianship in Florida and reading it side by side with this blog entry?  (It's simple:  Right click on this link to get on over to my Guardianship topic at EdwardRingwald.com and select "open this link in a new tab".  This will work for both Internet Explorer and Firefox.)
This article I found at ABC Action News (WFTS-TV, the ABC affiliate here in Tampa) as part of their I-Team Investigation broke my heart.  This is the story of William Berchau, a 99-year old Pinellas Park resident, who unfortunately succumbed to the restrictive confines of Florida's guardianship laws.  Furthermore, Mr. Berchau was placed in a locked unit of a Pinellas Park assisted living facility (ALF) dealing with Alzheimer's Disease and after some intervention by ABC Action News, Mr. Berchau has been freed from the locked Alzheimer's unit.

In another case that was investigated by the ABC Action News I-Team, there was the case of a 90-year old Clearwater resident, Paulette Karpa, who also fell victim to the restrictive confines of Florida's guardianship laws.  Ms. Karpa ended up in the same Pinellas Park ALF as Mr. Berchau, Grand Villa.
How did Mr. Berchau and Ms. Karpa succumb to the restrictive confines of Florida's guardianship laws?  All it took was the allegations of a social worker.

In Mr. Berchau's case, the social worker was claiming that Mr. Berchau was trying to sell his home for much less than market value.  On the flip side of the coin, in Ms. Karpa's case it was a series of calls to police about attempted burglaries which turned out to be unfounded.  To make things worse, Ms. Karpa did have her legal documentation in order.

Yeah right, a social worker.  I am not saying that not all social workers in Florida are bad; instead, there are social workers out there - unfortunately - that will do anything to do irreversible damage to you or your loved one's well being.  That includes adults as well as children.
By the way, is selling your home for less than market value grounds for guardianship in the State of Florida?  To me, that is complete hogwash in my book.  There are plenty of reasons why homes sometimes have to be sold for less than market value; one of them is to get away from arbitrarily high maintenance fees if the home is part of a condominium.  Besides, condominium maintenance fees can drain the budget of a person especially if the person is living on a fixed income such as Social Security.  Another reason, of course, is in the event of a mortgage foreclosure.
In order to sell a home, it is very important to get an all purpose appraisal from a licensed property appraiser.  Neither your county's Property Appraiser nor Zillow are the Gospel of your property value.  An all purpose appraisal may cost you some money; however, it's money well worth spent.

Is also calling the police to report a burglary grounds for guardianship?  To me, that's also complete hogwash in my book.  We teach our children at an understanding age to call the police if someone breaks into the home.
All it takes for a guardianship case to commence against you or your loved one is the allegations of a total stranger.  Most commonly, as in the case of both Mr. Berchau and Ms. Karpa, is the allegations of a social worker, particularly a social worker employed by the Florida Department of Children and Families.

Here's an article I found at Fiduciarywatch.org very useful:  How Guardians and Conservators Take Advantage.  You might also want to read that, as it's Florida specific.
You got that right, the Florida Department of Children and Families.  This agency is supposed to protect children and vulnerable adults from abuse, neglect and exploitation but nine times out of ten it works in reverse.
How does DCF work in reverse?  You'll be surprised:
1.  A social worker, becoming aware of an incident of abuse, neglect or exploitation involving a vulnerable adult (vulnerable meaning disabled or elderly, but that's subject to interpretation), files an Adult In Need of Services petition stating that the vulnerable adult is in danger.  In what danger?

The petition is presented to the judicial system and the judge approves the petition to last no longer than 60 days.  Before the 60 day period is over, the social worker will have a petition to determine capacity and for appointment of a guardian and will in most likelihood file the emergency guardianship petition for fast tracking a person from a law abiding citizen to a ward of the state.

An Adult In Need of Services petition, once granted, takes away certain rights of an adult, mainly medical treatment.  Unfortunately, due to the 60 day temporary nature of the Adult In Need of Services petition and order, it gives the social worker the necessary time to get the regular and emergency guardianship petitions going.  After all, the emergency petition for guardianship lasts 60 days while the alleged incapacitated adult is inquisitioned by the court appointed Examining Committee.
2.  If you somehow spanked your child the night before at home and the school officials discover the bruises the next day, your child's school principal makes a mandatory report to DCF.  You get a phone call from your child's school saying that you must come by at your earliest opportunity; once there you are greeted by not only the school principal but by a DCF investigator and a law enforcement officer who arrests you on child abuse charges.  At the same time your child is taken into protective custody by DCF and a social worker is preparing the court petitions that will eventually lead to your parental rights being severed.

Imagine for a moment you having to see your child taken away by DCF under the uber watchful eyes of a social worker.  Now imagine your loved one, stripped of his or her rights thanks to guardianship, and you can only visit your loved one in the ALF facility under the uber watchful eyes of either the professional guardian or the social worker hired by the professional guardian.
There are other situations where the actions of a social worker can destroy the livelihood of you or your loved one.  One of them is in a hospital emergency room where even the simplest of all medical emergencies can trigger a visit by the hospital's on-duty or on-call social worker.  Based on the medical condition that brought you to the emergency room and what you said, more than likely the social worker is filing not only the petitions to determine capacity and appointment of guardian but is also filing the petition for emergency guardianship, the 60-day temporary guardianship imposed while action is pending on the more permanent guardianship being proposed.
Take a look on a blank Petition for Emergency Guardianship form in Florida.  This sentence is very disturbing:  Petitioner is an adult interested in the welfare of the alleged incapacitated person.  In other words, a social worker or another person - based on perjured testimony - can commit a person into an institution on an emergency basis.
Once it's all said and done (meaning the judge has ruled the adult incapacitated and is in need of guardianship) the alleged incapacitated person's status is legally changed to being a ward of the state.  Nine times out of ten, the family member does not become the guardian - instead, the job is handed to a professional guardian with the major intention of doing it for the money.
Now that a professional guardian - a total stranger unknown to the family - is in control of the incapacitated person's affairs, let the asset wasting spree games begin.  As a professional guardian, he or she can collect so much an hour for his or her professional fees.  How is the professional guardian paid?
1.  Loot all bank or credit union accounts.
2.  Sell all real estate owned by the ward, way below market value.  (Be sure to pay off any mortgages first).
3.  Sell all heirlooms and possessions of the ward.
4.  Sell any motor vehicles owned by the ward.
5.  Receive all government and other benefits the ward is receiving, such as Social Security.
6.  Place the ward on an "allowance" the professional guardian dictates.
OK.  The professional guardian now has total and complete control of the ward's daily activities.  How is this accomplished?
1.  Place the ward in an ALF or nursing home.  (Locked Alzheimer's units are ideal, if the professional guardian knows good contacts).  At least restrict the ward to the confines of the ALF.
2.  Take away the voter identification card.
3.  Take away the Florida Driver License.
4.  Take away the United States Passport.
5.  Take away the right to seek or retain a job.
6.  Obtain a restraining order keeping relatives and family away from the ward.
7.  Redirect all mail addressed to the ward to the professional guardian.
8.  If the ward is married, initiate the petitions for dissolution of marriage.
9.  Determine which doctor(s) the ward will see for ongoing medical care.
Now what happens when the ward's assets run out?  Usually this happens because of the ward residing in the ALF the professional guardian places the ward in.  It's plainly simple:  Apply for Medicaid.
Once the ward is on Medicaid, the ward is sent bouncing around the State of Florida to not one but many ALF's.  The ward ends up being placed in an ALF - sometimes a maximum security correctional institution style ALF - hundreds of miles away.
So, in the mind of a professional guardian, he or she is making plenty of money off of an incapacitated person and enjoying the benefits of life.  However, in the mind of the ward, it becomes a world of anxiety and fear not knowing what the next action will be.
Our State of Florida is increasingly becoming a dangerous place to live, especially if you are an elderly person.  Right now our guardianship laws - codified in Chapter 744 of the Florida Statutes - allow any person, particularly a social worker, to raise allegations against a person that will lead into a lifetime of legalized exploitation and imprisonment - and I mean life imprisonment in an ALF.
And our guardianship laws need to be fixed.
The first thing that needs to be fixed is who can be a guardian.  The use of a professional guardian should be prohibited unless there is verified evidence that there is no living relative that can assume the duties.  If a Declaration of Preneed Guardian is presented - as in the case of Ms. Karpa - then a professional guardian cannot be appointed unless the designated guardian expresses to the court in open testimony that he or she cannot serve.
Speaking of professional guardians, there needs to be better judicial oversight and that includes making all the yearly accountings that professional guardians must file public record.  Moreover, there should be no placement of the ward in a secure ALF on the guardian's own initiative; placement of the ward in a secure setting (such as a locked Alzheimer's section of an ALF) should require the approval of the judge after a hearing is conducted based on proper testimony and evidence.
Moreover, professional guardians need to be held accountable for their actions, especially on a criminal justice scale.  Any theft or exploitation committed by a professional guardian should be a felony punishable by imprisonment for an extended length of time, as well as the permanent revocation of the professional guardian's privilege anywhere in the United States, not just Florida.
As for the ward, there needs to be a bill of rights for those that are under any form of guardianship that protects the dignity and respect of the ward.  Among them is the right to live in a residence of one's choosing.  Another is the right to travel and carry identification.  And another is the right to vote.

After all, a Florida resident can carry a Florida Identification Card if the time comes that he or she can no longer operate a motor vehicle.  In the alternative, an U.S Passport Card is also ideal for identification related matters too.
When a petition for guardianship is filed no matter what, the petitioner as well as the members of the examining committee must be required to testify in open court under oath as to the truthfulness of the petition.  In other words, the social worker who initiated the guardianship petition (through legal counsel) should be prepared to testify under oath as to why a guardianship is being sought.
If there is evidence of less restrictive methods such as a durable power of attorney, then the petition for guardianship must be dismissed.  If a petition for guardianship is filed frivolously against a person and the judge rules as such then the petitioner shall be held financially liable for damages sustained by the alleged incapacitated person, including attorney fees paid to defend against the false allegations made by the petitioner.
In other words, Chapter 744 of the Florida Statutes needs a major overhaul by our legislators in Tallahassee.

Getting back to the situations that placed Mr. Berchau and Ms. Karpa in the wrath of Florida's guardianship laws, who is their court appointed guardian?  You'll be surprised to know that it is a professional guardian, and that professional guardian is nothing more than Pinellas Park City Council Member Patricia Johnson, according to the ABC Action News articles I mentioned earlier.

A Pinellas Park City Council Member, like anyone who holds public office in the State of Florida, holds a position of public trust.  It holds true from Rick Scott on down.  After all, Rick Scott continually violates the trust and confidence of the people of the State of Florida from the day he was anointed Governor in January 2011.

From reading both ABC Action News articles, it is my opinion that Patricia Johnson has violated the trust and confidence of the residents of the City of Pinellas Park by her actions as a professional guardian.  The people of Pinellas Park should do the right thing:  When Patricia Johnson is up for re-election as Pinellas Park City Council Member, vote her out of office!

The best thing you can do for yourself or your loved one is to make sure your affairs are in order.  Here are some important legal documents you or your loved one should have, and these should be prepared with the help of a competent attorney that is licensed by the Florida Bar and specializes in Probate and Elder Law:

1.  Last Will and Testament.
2.  Durable Power of Attorney.
3.  Living Will.
4.  Designation of Health Care Surrogate.
5.  Designation of Pre-Need Guardian.

Keep the originals in a secure place, but scan them to PDF files first and store the PDF versions somewhere in a place where the files are readily accessible if needed.

Remember, if you need legal assistance in Elder Law or any other legal related matter, be sure to have a consultation with the attorney of your choice.  Most attorneys will give you a 30- to 60-minute consultation either free or for a small fee.  Be sure you check out the attorney's qualifications and expertise (including courtroom track record) and read everything before you sign that retainer contract and hand over any money.

The above tips presented here in this blog entry are not to be construed as legal advice.  Should you run into a situation where you need legal help on an Elder Law or any other legal matter, consultation with an attorney licensed by the Florida Bar is strongly advised and encouraged.

And as for William Berchau and Paulette Karpa, they deserve plenty of dignity and respect, not have them live out the golden years of their lives in an institution and their everyday lives controlled by a total stranger.

A very special thanks goes out to ABC Action News reporters Adam Walser and Francis Gilpin for exposing the harrowing consequences of Florida's guardianship laws.  As I mentioned earlier, Florida's guardianship laws need to be fixed - and big time.

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