The above photograph shows Willi Berchau (seated front row center) at his guardianship freedom celebration party in January 2014.
At least 100 pages of Florida law, Chapter 744, are devoted to “Guardianship,” which may or may not be imposed upon a person who is determined to be incapacitated. Holocaust Survivor Marie Winkelman is now a Ward of the State of Florida, based upon the order of the Sarasota County Probate Court, which adopted a mediated settlement agreement that denied Marie her due process rights. This is the fourth part in an investigative series on the involuntary guardianship of author and acclaimed painter Marie Winkelman.
What is incapacity supposed to be?
According to the Uniform Guardianship and Protective Proceedings Act (1997), an “Incapacitated person” is an individual who, for reasons other than being a minor, is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.
So what was Marie’s status before she was put into State guardianship? Until July 2013, Marie lived independently in a lovely residence in Sarasota, Florida, where she cleaned her apartment immaculately everyday, organized her papers and closets effectively, dressed herself beautifully, prepared her meals, entertained guests frequently, did all of her own shopping, talked with her bankers and financial advisors regularly in person and by telephone, made and received calls multiple times per day, read the daily newspaper, paid her own bills by check and by telephone, and carried on conversations for hours, switching from Polish to English, depending upon the recipients with whom she was speaking.
Why Marie Winkelman’s guardianship is a test case …
Can Marie receive and evaluate information? Absolutely. Can Marie make and communicate decisions? Assuredly. Does Marie have the ability to meet essential requirements for physical health, safety, and self-care? Yes. By lowering the bar of “incapacity,” the State of Florida has created a substantially larger pool of affluent persons whose lives and fortunes are under the authority of the probate courts that increasingly operate in secrecy by closing hearings to the media and the public and removing court records from the public sphere.
Why is Marie in Florida state guardianship?
As a Ward of the State, Marie’s assets – millions of dollars – are no longer in her control. They can be and are being spent on hundreds of thousands of dollars of attorney bills, guardian fees, service provider charges, and other such costs that Marie never had before she was forced into guardianship. In other words, Marie’s assets are feeding dozens of professionals in a distressed economy. Only a few individuals are permitted to see the enormous bills being paid by the Sabal Trust Company from Marie’s assets, without Marie’s consent and without any court records of them.
How does Marie’s case affect you?
Have you ever left your checkbook on the table? Marie’s visiting nurse decided that this was a sign of financial incapacity. Do you have paintings on your walls? Marie’s visiting nurse testified in court that someone could take the paintings or the checkbook; so she determined that Marie must be financially incapacitated. Are you?
Can Marie ever escape guardianship?
Marie could litigate her incapacity and guardianship order, but so far, her attorney, Audrey Bear, has only asked the court for yet another mediation (scheduled for January 28, 2014), with which Marie disagrees.
Although Marie has repeatedly asked to have her rights restored, so far Ms. Bear has not filed a restoration of rights petition with the court. On December 15, 2013, Marie passed her examination of four consecutive hours by Dr. Eric Weinstock, the psychiatrist whose positive restoration of capacity evaluation promptly resulted in the freedom from guardianship of Florida Ward, Willi Berchau, who, like Marie, lived independently and successfully managed his wealth until he was forced into guardianship for many years; but, finally, at age 99, Willi is free.
Marie’s guardianship is a test case for the American people to speak out before more of us lose our life savings because we left our checkbooks lying on tables. Lowering the bar for incapacity is opening the floodgates of total state control of elders.
ABC Action News interview with Willi Berchau: