IG Probes Hiding of Records by Florida Department of Elder Affairs

In September 2012, the State of Florida opened an investigation by the Inspector General’s Office, Department of Elder Affairs, into allegations that the State’s top official overseeing the nearly 1,000 registered professional guardians practicing in Florida conspired with public guardians to conceal hundreds of records in a guardianship abuse case.

Florida is well known for its large population of elders, more than any other state. As such, it is the perfect place for perfect crimes against those aged persons who are put by the courts under the absolute control of the State, so that they are deprived by law of every civil right.

In 1987, a committee formed by Congress to examine abusive guardianship practices concluded that the typical Ward has fewer rights than the typical convicted felon.

The committee found that, not only could the alleged incapacitated person “no longer receive money or pay [his or her] bills,” but courts give guardians “the power to choose where [the alleged incapacitated person] will live, what medical treatment they will receive and, in rare cases, when they will die.”

In sum, the congressional committee saw guardianship as “the most severe form of civil deprivation which can be imposed on a citizen of the United States.”

What happens when a state turns its back on its own laws and on its most vulnerable citizens? The State of Florida can answer this query, based upon newly-revealed e-mails in which the State’s highest official overseeing thousands upon thousands of guardianships of incapacitated elders concealed from a Ward’s estate hundreds of documents from a public guardianship agency under her supervision.

For a Ward, it is a court-appointed guardian who is legally entitled to control every aspect of the Ward’s life and every asset he owns, personal possessions, money and real property. It is a court appointee who is legally permitted to exercise every decision for the Ward – where he lives, what he eats, his doctors and medical treatments, access to his family members, and how much of his own money can be spent on him or, instead, on the guardian and his attorney.

In Florida, the statutory qualifications for the invasive authoritarian position of professional guardian do not include any educational degrees, specific skills, prior relevant experience, or academic qualifications.

In sum, after reaching 18 years old, staying out of trouble with the law, taking 40 hours of guardianship training and passing an exam, anyone can obtain absolute power over a completely-helpless human being, with no capacity to protect himself from abuse or exploitation, and over millions of dollars of wards’ assets.

Any professional guardian or agency may totally control the lives of hundreds of Wards and assets of hundreds of millions of dollars, without ever personally knowing their Wards through more than occasional brief visits, which are not even documented with photographs or videotapes to evidence how the Wards are faring under state control.

Guardianship agencies are licensed by the State by submitting minimalistic corporate papers that require brief time to prepare. To become a public guardianship agency in Florida, the agency must sign contracts with the State, which contracts specifically require every agency to keep meticulous paper and electronic records on each of its Wards for at least six years, but what happens when all of an agency’s records on a Ward disappear well before the six-year period has ended?

Holocaust Survivor Al Katz’s family knows the answer to this question. In seeking the records from his public guardianship agency that controlled his life and assets for months, Al’s family was told all of his records had been shipped to the State capital, Tallahassee, and none (except for two pages) had been retained by the agency, Aging Safely of Bradenton, Florida. Likewise, the agency claimed that it never kept a single electronic communication concerning Al and his guardianship.

When Aging Safely’s attorney, Erika Dine, was served with a subpoena by Al’s family for her records, she immediately sought to quash the subpoena, claiming that the hundreds of documents (including Al’s medical records) she had were either confidential from his family or irrelevant with respect to his care while he was in the complete control of the public guardians. Starkly, Ms. Dine was not only Aging Safely’s attorney during its troubled guardianship of Al Katz, but was also a Board Member of the corporation and the law partner of its current attorney and registered agent. In addition, she holds the role of Vice President of the Manatee County Florida Association for Women Lawyers, Inc. In court, Ms. Dine’s lawyer, James Essenson, repeatedly described Al’s daughter as “crazy” and her subpoena for Al’s guardianship records as “harassment.”

It is believed that Al Katz’s case is the first one in the nation to have indisputable evidence that high-level state officials actively obstructed justice and covered up crimes against a state Ward.

BACKGROUND INFORMATION ON THE AL KATZ STORY:

Individuals with substantial financial means who need guardianship services are at risk. They may fall prey to dishonest individuals who are willing to act on behalf of the person with diminished capacity in order to gain access to the latter’s finances for their own personal benefit.

Often, a petitioner sues for guardianship of the person and of the property. This gives the guardian total control over the alleged incapacitated person and his or her property.

When the Manatee County public guardians, Directors of Aging Safely, filed their petition in court on September 18, 2009, to become Al Katz’s temporary plenary guardian of his person and property, Al was an 89-year-old mobile and verbal successful businessman, who had spent his winters in Bradenton for more than 25 years. Over 32 years earlier, he had lost his wife and was losing most of his peers by attrition. Al was lonely, vulnerable, and prosperous. Manatee County in September 2009 was suffering severe financial losses, and Al’s assets would be a boon for a variety of professionals, businesses, and agencies, if only they could be accessed.

Al’s temporary guardianship was granted immediately to the public guardians, and his life lost the steady direction it had taken since the Holocaust had ended 64 years before. His road had always been arduous, but he had remained a survivor in every way.

During Al’s temporary public guardianship, Ms. Dine fiercely opposed the appointment of Al’s daughter, Beverly Newman, to be his permanent guardian. Her vehement opposition to Dr. Newman’s appointment was so deep-seated that she vociferously objected to Dr. Newman’s efforts to visit her infirm, distraught, aged Father in a Bradenton nursing home, where he was kept by Aging Safely thousands of miles away from any family members except for his daughter.

On September 18, 2009, just hours before the Jewish Sabbath and New Year, Al Katz was made a Ward of the State of Florida by a judge who knew that Al did not qualify in any way under Florida law to be placed in public guardianship, which is intended for indigents domiciled in Florida whose families either cannot or will not care for them. The surprise guardianship hearing was not attended by any of Al’s family or by Al himself. In fact, Al’s daughter, Beverly, already had an active guardianship case for her Father in Indiana, where he was domiciled; nevertheless, Al’s Florida guardianship was granted to total strangers without any opportunity for Beverly to oppose it.

Simply put, Al’s family was already on record as willing and qualified to care for him without any governmental intervention by the State of Florida.

Although Beverly was never notified of the temporary guardianship hearing, in violation of Florida law, the guardianship petition of Aging Safely was granted in 15 minutes, as Al’s life went from complete adult independence to forced institutionalization at the hands of the State. Al lost every right of a citizen in the United States in one quarter of an hour.

ASSETS JUST FOR THE TAKING

Numerous studies and media articles across the country have documented cases of abuse, neglect, and exploitation of persons with diminished capacity and their estates by their court-appointed guardian.

Petitions are sometimes initiated by organizations and individuals who may have a conflict of interest—professional guardians, guardians ad litem, administrators of long-term care facilities and hospitals, and family members who stand to benefit financially.

When Aging Safely was appointed Al’s plenary guardian of his person and property, with immediacy, it set into motion a purposeful series of actions in its own interests, beginning with hiring a local locksmith to open Al’s house for Aging Safely’s Officers, Jonene Eisch and Ashley Butler, to enter and to take anything inside – papers, valuables, personal possessions, legal documents, and whatnot.

In Florida, a person totally unknown to a new Ward of the State is lawfully permitted, as a guardian, to raid the Ward’s home without supervision or any documentation; remove any amount of items without listing, identifying, or photographing them; store them anywhere; and change all of the locks so that neither the Ward nor his family can enter thereafter without the presence or the permission of the State-appointed gatekeeper.

Individuals with substantial financial means [as Al Katz] who need guardianship services are at risk. They may fall prey to individuals who … are willing to act on behalf of the person with diminished capacity in order to gain access to the latter’s finances for their own personal benefit.

From that point on, the State often operates in secrecy. “Once a guardian is appointed, the guardian rarely consults with the Ward before making a decision.” Virtually all decisions, even life and death, are made by strangers to the Ward and his family. In Al Katz’s case, he was shipped off to live in a neglectful nursing home, against the express wishes of his family and despite his explicit wishes written multiple times in his various advance directives, “in no event shall I ever be placed in a nursing home facility….” These words were as if written on the wind, written, dismissed, and discarded by strangers who personally benefited by their actions against the will of their Ward and of his family.

From the Bradenton Casa Mora nursing home, Al’s life took a horrible turn to institutionalization in a lock-down unit at Manatee Memorial Hospital, where Al’s guardians arranged to put him into a Baker Act involuntary commitment. Within just a few days of time, Al had been moved from his home in Bradenton to a hospital, then to a nursing home, and into a second hospital, all without his understanding why he was being transferred from one institution to another. Neither Al nor Beverly knew where he would be taken next, for what purpose, or for how long.

HOW HOLOCAUST SURVIVORS SUFFER FROM INSTITUTIONALIZATION

The wrong guardian or an inappropriate or premature guardianship can be the very act that triggers a chain of events leading to the unnecessary or premature institutionalization, causing the ward to give up hope. It may be the event that hastens death.

A famous Holocaust Survivor, Roman Kent, explains the plights of Survivors in the final fight for their lives:

In our old age, gruesome memories come back to haunt us, and we relive that period in our lives. In a way, we are the same as any old, sick person. But we have undeniably experienced more pain, more bad memories, more suffering. We witnessed evil first-hand and are understandably more suspicious. To top it off, we feel a greater sense of loneliness because we remember being abandoned. Sometimes we can’t help feeling we are being abandoned once again.

Al Katz’s sense of abandonment was intense and pervasive, as he languished for three weeks in the Manatee Memorial Hospital lock-down unit, with a no-contact order on him, and then for three more weeks in Casa Mora’s lockdown unit, never knowing why he was there and why his daughter could not take him home (since the court order that allowed Beverly to visit with her Father only three hours per day, specifically forbade her to explain to Al any of the legal matters regarding his guardianship and his daughter’s visitations with him). Al was thereby totally shut out of his own legal case and the myriads of decisions being made about his life.

As a Holocaust Survivor, everyday is inextricably linked with the past of horrors. “Auschwitz is much more than just a part of me — it is all of me. The same holds true for each and every survivor.”

Roman Kent, one of the most outspoken and eloquent voices of the Survivors, explains the trepidations and penetrating emotions of Survivors:

… [over] 60 years after the liberation of the camps, not too many of us are still alive. None of us is a youngster anymore.

… Now in our old age, we constantly and vividly relive our wartime experiences, and have ailments caused by the suffering endured decades ago.

We suffer from physical and emotional distress at higher rates than the elderly population as a whole. Prolonged malnutrition under the Nazis has affected our health…. There are particularly high rates of dementia and schizophrenia among Jewish victims of Nazism. Many of us are alone as a result of having lost our entire family during the Holocaust.

It is unfathomable how much Al suffered in months of institutional lockdown apart from his family, confused and alone, reliving the Holocaust, and wanting nothing more than to go home with his family.

We survivors are adamant about remaining in our own homes rather than entering a nursing home. To someone who endured incarceration by the Nazis, the prospect of institutionalization is frightening. It triggers memories and even induces panic. Home care, therefore, has emerged as one of our most pressing needs.
At the end of their days, Survivors want most of all the familiarity and security of their own homes and families. Al Katz’s guardians were oblivious and impervious to his deepest needs as a human being who had suffered the worst of mankind’s brutality inflicted against others of his own kind. The guardians never let their guards down in preventing Al from returning to his beloved home and family. His fate in their hands was a certain death sentence meted out in placements in multiple institutions week after week, month upon month, until he would meet his end.

In lock-down at the Manatee Memorial Hospital, under the guardians’ directives, a complicit physician issued a no-contact order on Al to have no communications of any kind with his family and friends. Al was held behind large electronically-controlled doors in this state of incommunicado, as a murderer might be punished, for three weeks in the dingy, secluded basement of a large urban hospital. Against the law, Al was sequestered for two-and-a-half weeks after the maximum Baker Act detention period of three days had expired, having been given no (mandatory) court hearings for the entire three weeks. Al was a prisoner in the hands of a state guardianship system run amuck. One 81-year-old Florida Ward summed up her time in guardianship, “It was awful. They robbed me of money, time and dignity.”

In his involuntary confinement incommunicado, Al suffered all of the predictable effects on a Holocaust Survivor of isolation and institutionalization – extreme episodes of post-traumatic stress disorder, panic attacks, confusion, grief, intense anxiety, and feelings of abandonment. Although his family waited for him day-in and day-out outside of his barricaded quarters, Al had no idea of their whereabouts or even of his own. For weeks, Beverly filed motions in court for Al’s release, none of which was ever heard. Al had been sentenced to death by institutionalization, to the extravagant benefit (hundreds of thousands of dollars paid by taxpayers and by Al Katz) of his guardians, a host of attorneys, his nursing home and hospitals, and the Manatee County courts. The pie of money and assets that Al represented was thick and ample for many.

THE DEATH-MOBILE

On October 12, 2009, Al was abruptly released from Manatee Memorial Hospital lockdown, without notice to his family, and transferred to his new lock-down unit at Casa Mora nursing home, still completely incommunicado and confused about his past, present, and future whereabouts. For three weeks, he had rarely and barely slept, wandering the hospital hallway interminably, and wanting desperately to go home. His wants were his guardians’ immediate rejections.

Casa Mora specialized in fattening Al’s waist from a size 40 inches to a size 50 with steady useless in-takes of sugars and in secluding him from congenial and happy elders. Instead, Al’s lot was intentionally cast with women whose voices were heard in endless screams, men whose mouths never uttered an intelligible word, and one man, in particular, whose daily gear entailed a helmet, knee pads, and elbow pads designed to buffer his bouts of physical contact with elders a fraction of his size, like Al.

In mortal fear, Al lived in his latest lock-down unit selected by his court-appointed guardians, paid at taxpayer expense, and approved by his court-appointed attorney, paid by Al’s dwindling assets. Indeed, attorney Ernie Lisch’s bill for legal services to Al, that never included a single motion filed in his behalf or even one visit to Al’s confinement quarters at the hospital, was an astounding amount of nearly $25,000.00, which was immediately approved by the court that appointed him.

“[T]he American legal system may treat [Wards]… worse than murder suspects …..[T]he legal system also has contributed to a pattern of grievous abuses [against Wards]…,For most people a declaration of mental incompetence is an irrevocable life sentence….Incompetency declarations rarely are reversed, ….”

Al’s vehicle to death was indubitably institutionalization, which he had dreaded all of his adult life following his more than seven years of slave labor in the Holocaust and a death march that he barely survived. He would be certain to die in involuntary placement at Casa Mora, where his living quarters consisted of a bed tucked in the back corner of a drab room at the very rear of the nursing home behind layers of electronic locks and coded metal doors. From involuntary confinement for three weeks in a hospital lockdown unit incommunicado, Al was sent by his guardians to a nursing home lock-down unit, again without any communications permitted by his guardians for Al to have with his family.

Predictably, within days of his institutionalization at Casa Mora, Al was hospitalized with extreme pitting edema and cellulitis. Although the guardianship court had just recently granted Beverly the right to visit her Father after two days of contested hearings, in which Jonene Eisch, Ashley Butler, and their attorney Erika Dine demanded that Beverly should have no visitations with her Father, Al once more was placed under a no-contact order by his new receiving hospital, Blake Medical Center, sited 50 feet from Casa Mora.

THE “TOXIC CASE”

By an e-mail dated October 12, 2009, sent well before dawn, Ashley Butler contacted attorney Michelle Hollister, the Executive Director of the Statewide Public Guardianship Office (responsible for the oversight of all of Florida’s public guardianship offices as well as for appointing and contracting with existing and potential public guardians), seeking help with the Al Katz guardianship, which Ms. Butler described as “a very toxic case.” The date and time of Aging Safely’s pre-dawn e-mail were significant since its Officers had finally been ordered by a judge to a hearing, to take place that same morning, on Al’s prolonged involuntary confinement, which, by law, should have terminated on September 27. It was now October 12, and Al had been unlawfully sequestered by Aging Safely in lock-down for weeks.

October 12, 2009, was a seminal day in Al’s life; for he was finally going to have a court hearing to determine where he would be allowed by the State of Florida to live. Of course, Al had no idea before the hearing that it was going to be held or afterwards that it had been held, and he had not a single person to advocate for his fervent desire to go home.

Tragically and predictably, Al’s numerous taxpayer-paid representatives (Jonene Eisch, Ashley Butler, Erika Dine, Dr. Gregory Onderko, two public defenders, and one state’s attorney) all joined ranks in the fateful decision to send Al directly from the Manatee Memorial Hospital lock-down unit to the Casa Mora lock-down unit. Neither Al’s written advance directives, held by Aging Safely, forbidding his placement in “a nursing home facility” nor his family’s pleas for the same were ever mentioned by anyone at the hearing or considered by the presiding judge, Paul Logan, or by his magistrate, Susan Maulucci.

What role did Michelle Hollister, a top Florida state bureaucrat administering a multi-million dollar budget, play in the events of October 12, 2009?

Ms. Hollister did not demand that the wishes of Al and his family should be advocated and advanced by Aging Safely at the momentous hearing. Likewise, Florida’s top official for the protection of the State’s tens of thousands of Wards did not insist that Al’s public guardianship be reversed due to Aging Safely’s wanton violations of laws in taking guardianship of Al, a non-resident of Florida and non-indigent, without notice to his daughter, who already had an open guardianship case for her Father in his home state of Indiana.

Contemporaneously, when Beverly had sought the help of Michelle Hollister in rescuing her Father from his illegal guardianship under Aging Safely, no assistance whatsoever was provided to her. Although Ms. Hollister became familiar with the “very toxic [guardianship] case” of Al Katz from both Beverly and Aging Safely, the State of Florida never relented in its efforts to keep Al Katz institutionalized and sequestered from his daughter, who had left Indiana to care for him in Florida.

Shortly after Aging Safely’s communication with Ms. Hollister and the subsequent court hearing that morning, Al was shipped off to Casa Mora, four minutes from his home, without explanation or notification to his family. Behind and before every decision made for Al and against his interests were Aging Safely’s attorney and corporate Director, Erika Dine, and her clients, Jonene Eisch and Ashley Butler; yet Dine and her clients claimed and continue to claim that every record of Al Katz’s guardianship was no longer in their possession, irrelevant to Al’s care, or confidential from his own family, including his medical records.

WARD RECORDS SEQUESTERED BY THE STATE

Just as the State of Florida had sequestered Al Katz from his daughter for weeks in September and October 2009, it concealed Al’s guardianship records from Beverly, as the Personal Representative of his estate, for years.

Beginning in early 2010, Beverly, in her capacity as her Father’s newly-appointed Guardian of the Person, began requesting Al’s guardianship records from Aging Safely and from Erika Dine, none of which records was ever provided through these requests. Two years later, in February 2012, Beverly served four subpoenas for Al Katz’s guardianship records upon Jonene Eisch, Ashley Butler, Aging Safely, and Erika Dine.

Five days after, Jonene Eisch contacted attorney Yolanda Siples, who had replaced Ms. Hollister, advising Ms. Siples that Aging Safely had found several of the subpoenaed items that had not been sent to Siples previously and telling her that attorney Erika Dine wanted to talk to her.

Just minutes later, Ms. Dine followed up on this e-mail, seeking advice from Ms. Siples as to how her office “wanted to handle the subpoena.” Two days afterwards, Ms. Eisch confirmed by e-mail that she sent more subpoenaed documents to Ms. Siples “per [her] request.” This e-mail was copied to attorney Christopher Smith, who is Erika Dine’s law partner, the registered agent for Aging Safely, and the attorney representing Aging Safely and its Directors in the matter of the subpoenas for Al Katz’s guardianship records served upon them.

Once all of the subpoenaed records had been secreted to Ms. Siples in Tallahassee, Mr. Smith sent an e-mail to Beverly’s attorney informing him that “… all records pertaining to Mr. Katz were previously turned over to the State of Florida, Department of Elder Affairs, upon the resignation of the public guardian [in 2011]. None of the Recipients kept copies of her documents.”

Just days later, Ms. Dine filed a motion in court for a protective order with respect to the subpoena she had received from Beverly, claiming that Al Katz’s guardianship documents were all either irrelevant to his care in the nursing home, where she had him placed, or were confidential. At the hearing on Ms. Dine’s motion for protective order, her attorney repeatedly advised the court that Beverly and her accusations about Ms. Dine’s role in secreting subpoenaed documents, in violation of the law, were “crazy.”

The court ruled in Ms. Dine’s favor despite the overwhelming objective evidence, in the form of multiple e-mails to and from Ms. Dine detailing her active involvement with the Statewide Public Guardianship Office in concealing from Beverly her Father’s guardianship records, showing abuse, exploitation, and neglect of Al Katz while he was in the complete control of the State of Florida.