Cloaked in secrecy, a mediation meeting in a lawyer’s office was held on November 25, 2013, under order of the Sarasota County Probate Court, to determine whether or not 89-year-old Holocaust Survivor Marie Winkelman was or was not capacitated and if or if not she needed to be put into Florida’s vast guardianship system, which controls the lives of scores of thousands of elders. This is the third part of an investigative series on Marie’s guardianship case. Please go here to read Part I and Part II.
Although Marie escaped death in the Warsaw Ghetto, where everyone in her large family (except one baby) was murdered, she has thus far not been able to be freed from a guardianship where most believe she never belonged.
What could possibly go wrong with court-ordered mediation?
The litany of answers to this question is nearly endless, beginning with something akin to “blackmail,” as one of the participants in Marie’s mediation described the circumstances under which the fateful Mediated Settlement Agreement was signed after hours of lawyer talk. Unlike litigation in an open courtroom, with a precise record made of the day’s actions and discussions, under oath or not, mediation is the antithesis of due process. There is no record even allowed of the mediation proceedings. A confidentiality statement must be signed by every participant. No judge is present, and the public is excluded. No witnesses testify. No evidence is presented. No appeal is possible once an agreement has been signed by all of the participants.
So how can you mediate someone’s incapacity, which, of necessity, requires due process protections?
Although this question was posed to a former Chief Judge in Sarasota, no legal citation was provided by him. After five attorneys and three of Marie’s distant family members met for a day, at Marie’s expense, just before Thanksgiving, their Thanksgiving gift to Marie was that they had decided amongst themselves that Marie was incapacitated and that she should not be allowed to remain living independently without two guardians being appointed to make her health decisions and a trust company chosen to control Marie’s fortune of millions.
The legal document produced by the signatories completely excluded Marie, a vibrant and brilliant accomplished woman (acclaimed artist and author), from the entire process. Indeed, Marie was not present at the mediation determining her life’s circumstances. Her then-attorney, Barry Spivey, did not even provide her with a copy of the Agreement either before or after it was signed. Likewise, Marie was never given copies of the releases signed as part of the Agreement. In other words, the secret meeting is still a secret from Marie herself.
Simply put, the product of the secret meeting was a done bad deal for Marie, whose multi-million-dollar trust was wrongfully included as part of her guardianship proceeding and was mysteriously converted from “revocable” (able to be revoked by Marie) to “irrevocable,” thereby forever sealing the future fortunes of the named beneficiaries.
Who are the beneficiaries of the trust made irrevocable in mediation?
The primary beneficiaries of Marie’s multi-million-dollar trust are Robert Szychowski’s wife and sister-in-law, who are the stepdaughters of Marie Winkelman. Robert Szychowski, a fiscal administrator at Rutgers University, initiated the guardianship proceedings against Marie and is a signatory to the Agreement. To accomplish his ends, Szychowski used at least three different attorneys at Marie’s expense, presumably costing Marie hundreds of thousands of dollars to have her stepson-in-law fight her.
Another signatory to the Agreement and major beneficiary of Marie’s now-irrevocable trust is Marie’s cousin and sole blood relative, Alina Koren, who hired two attorneys in order to become Marie’s Guardian of the Person. Per the Agreement, all of Szychowski’s legal and travel expenses plus all of Koren’s legal and travel expenses (and a host of other fees charged by service providers) will be submitted to the Sabal Trust Company to pay out of Marie’s trust without any oversight or input by either Marie or the Probate Court.
How can a trust company agree to pay out hundreds of thousands of dollars from a Ward’s trust for purported guardianship bills without court oversight?
In sum, the sums of the secret mediation about Marie continue to toll to the tune of hundreds of thousands of dollars, despite the glaring absence of any of the court oversight mandated by the State of Florida to protect its Wards’ assets. Why did Sabal Trust, the company chosen by Szychowski and located in his attorney’s same building, accept such payment provisions of the Agreement, devoid of court input?
Once more, Marie’s Constitutional right to due process is evaporating with the prospect of her second court-ordered mediation behind sealed doors scheduled by Judge Deno Economou for February 28, 2014, as requested by Marie’s new attorney, Audrey Bear, for what purpose?