MINNEAPOLIS — Tim Healy calls the time he spent in a Twin Cities group home “my lost years.”
Healy, 32, has an intellectual disability and needs help with basic living tasks. But for 12 years at a group home in New Hope, he got little of that. He describes a facility so short-staffed that residents were ignored for hours at a time and rarely allowed to venture outside. He says it was a period of numbing boredom, loneliness and doubt.
Today, living with his mother in West St. Paul, Healy feels reborn. Cradling a guitar, he describes his plans to get married, find a job, start a rock band and take skydiving lessons. “It’s like I was a prisoner,” he said. “I’ve been away too long.”
Healy and his family remain furious at state and county officials who administer aid to Minnesotans with disabilities. They say no one told them that Minnesota’s Medicaid program pays for the kind of services that would enable Healy to live at home and independently.
“Tim could have flourished on his own, but we were led to believe that a group home was the only option,” said his mother, Brenda Olson.
Healy’s plight is one example of the way Minnesota is forsaking a legal obligation to promote independence among people with disabilities. Rather than helping develop care plans that would allow them to live in their own homes or apartments, counties across the state continue to steer thousands of Minnesotans with disabilities into facilities that promote dependency and isolation.
State spending on group homes, for Minnesotans with disabilities who receive a coveted form of assistance known as a Medicaid “waiver,” now totals about $1.5 billion a year. That represents about two-thirds of total spending on waivers for people with disabilities — and is more than the combined state spending on agriculture, higher education and pollution control.
Despite that huge outlay, records show that Minnesota rarely conducts inspections or on-site audits to ensure that group homes are delivering the individualized care and daily activities they promise.
As a result, Minnesota has become one of the most segregated states in the nation for housing people with disabilities. In 2016, only 7 percent of Minnesotans with intellectual and developmental disabilities who received waivers lived in their own homes. Last year, some 44 percent of Minnesotans with disabilities reported living in group homes — more than twice the national average and the highest rate in the nation.
“We are spending Medicaid dollars on an entrenched system that segregates people and leaves them with little choice,” said Barnett Rosenfield, supervising attorney for Mid-Minnesota Legal Aid. “It’s completely inconsistent with the law and the purpose of waivers.”
For those confined to group homes, the experience is often one of profound loneliness and frustration.
At a group home in Bloomington, Patricia Wilson sobbed while clutching the portrait of her husband of 35 years. The two were placed in separate group homes after she suffered a major seizure. She has seen him only three times in the past year. Wilson said staff at both homes have ignored her repeated pleas that they be reunited.
In Brooklyn Park, Marrie Bottelson, an artist with cerebral palsy, has tried to forget the 13 years she lived in two group homes, where arbitrary rules prevented her from enjoying a normal social life and pursuing her passion for painting.
And in Sibley County, parents of a 20-year-old man who has severe autism and behavioral problems, Dustin Zahn, were recently told by county case managers that he had to “fail in a group home” before he could use public funds to live in his own apartment with supports.
Sue Schettle, chief executive of ARRM, the state’s main trade association for group homes, acknowledged that providers are often unable to meet resident and family expectations for access to the broader community. The primary culprit, she said, is a statewide shortage of caregivers, which has put group homes in a precarious position. Many homes can sustain just one caregiver for every four residents, which makes it difficult — even dangerous — to take individuals on outings, she said.
To address the staffing problem, Schettle said that ARRM and a coalition of disability organizations plan a major marketing campaign next this year designed to promote direct care as a profession.
“The big elephant in the room is staffing — and speaking the truth about it,” Schettle said. “We have a whirlwind of problems in this state that are largely related to a lack of human resources.”
Officials with the Minnesota Department of Human Services (DHS), which regulates group homes, said the agency has been intensifying outreach efforts to inform people of their options under Medicaid, including new services that make it easier for a person with a disability to live independently or with families in the community. The agency is also exploring ways to simplify the state’s Medicaid waiver system to make it easier for families to access benefits.
“Our systems have gotten very complex,” said Alex Bartolic, director for disability services at the DHS. “No family or person trying to get services should have to understand how all this system works.”
Minnesota’s system of Medicaid waivers, created in 1984, was designed to use state and federal health care funds creatively to serve people in their homes rather than by paying large medical institutions or hospitals. Group homes, which typically house four adults, were seen as a good option for some people.
Today, in some parts of the state, they are the default — or only — choice.
In 55 counties, group homes receive at least 70 percent of Medicaid waiver funds, according to state records obtained by the Star Tribune. In all but four counties, group homes receive more than half of all waiver spending.
“All too often, group homes are the path of least resistance,” said Lee Ann Erickson, executive director of the Arc Southwest Region, a disability rights group in Fairmont, Minn. “We fit people into the system we have built, rather than tailoring services to meet their needs.”
For taxpayers, the practice is wildly inefficient. In 2017, the state Medicaid waiver program spent $104,000 for every corporate group home resident, compared with about $25,000 for those who live independently with supports.
Amy Hewitt, director of the University of Minnesota’s Institute on Community Integration, noted that many people with disabilities “love their group homes” and have close relationships with fellow residents and staff. Even so, she said, the giant supply of group homes — there are nearly 3,800 statewide — has acted as a disincentive to develop more creative options.
In 2018, Minnesota launched a new service covered by Medicaid waivers, known as “individualized home supports,” designed to provide training and direct support for people to live in their own homes. Of the 31,000 Minnesotans on waivers who are eligible for the program, only about 210 have taken advantage of the service, state records show.
“There are many, many people who have no idea that other options exist,” Hewitt said.
On a bright afternoon in August, Cathy Joy Schlager, 64, who has Down syndrome, grinned and waved from her wheelchair as her sister pushed her down the wide streets of Lakefield, a quiet farming community in southwest Minnesota. Local residents, seeing her on a rare outing from her group home, hollered her name from yards or porches and honked their horns as they passed.
For years, Schlager volunteered at a local nursing home, where she brightened people’s days with her wry grin and homespun crafts. She played on softball and bowling teams, joined a traveling clown troupe with her uncle, and wove colorful quilts sold in a thrift shop. At dances organized by a local disabilities group, Schlager would croon along to Johnny Cash on the karaoke machine.
“It doesn’t matter where we go in this town, people know Cathy,” said her sister, Heidi Arndt. “She’s famous.”
Then in the winter of 2018, Schlager suffered a sudden deterioration of her vision, which made it impossible for her to get around without help. Her two sisters, who live and work nearby, decided they could no longer care for her alone. They moved Schlager into a small, four-bedroom group home in Lakefield overlooking cornfields. The pain of separation was mitigated by assurances from managers at the home that Schlager would receive one-on-one care and be taken out in the community at least once a week.
“Our big mistake was believing them,” Arndt said.
Almost immediately, the sisters noticed a disturbing pattern. When they dropped by after work, they found that Schlager had been left alone for hours. Apart from a few hours each weekday at a local activity center, the promised outings did not occur. Her requests to go out with friends or volunteer at an assisted-living facility — just a block away — were ignored.
“We noticed that she was spending a lot of time alone,” Arndt said.
One afternoon last spring, Joni Hanson, one of Schlager’s sisters, dropped by the group home and found her sister slumped over in her wheelchair, facing a blank wall, while two staff members played puzzles in a distant room. She had been sitting in the same spot for nearly three hours. Her dinner lay on a plate in the kitchen, untouched and out of reach.
Pressed for an explanation by her family, managers of the group home repeatedly cited a lack of staff. Most days, the home had just one employee to care for the four residents, which made it unsafe to take anyone out of the home. Even short walks around the neighborhood, so Schlager could get some exercise, were considered a risk. Her sisters said Schlager’s muscles were atrophying after so many hours in her wheelchair.
The executive director of the group home operator, Habilitative Services, Inc., said the company is dedicated to quality service, including providing residents “with opportunities to access and enjoy activities in their communities.”
Janice Reyes has worked in hospitals and senior homes in southwest Minnesota since the 1960s. “I’ve seen a lot,” Reyes said, holding up calloused hands. Yet Reyes said she found the conditions at Schlager’s group home intolerable and quit after a few months. The hardest part, she said, was the guilt that came with working 10-hour shifts alone — unable to take her clients into the community.
“Cathy is a ray of sunshine around here,” Reyes said over coffee at a cafe. “She doesn’t deserve to be hidden in the shadows.”
In 2014, federal health regulators approved sweeping new rules to promote inclusion among people with disabilities who receive Medicaid benefits. The requirements were explicit: Every setting where a person receives Medicaid funds must be integrated into the greater community. This meant that people living in group homes were entitled to the same freedoms that people typically have in their own homes — including the opportunity to control their schedules, choose their roommates, have visitors at any time and decorate their own rooms.
The rules were hailed as a historic victory by disability rights groups. In Minnesota, however, enforcement of the rules has been minimal, and public awareness of the new protections remains low, say disability rights groups.
Starting in 2017, the state has required group home providers to submit documents, known as “attestation forms,” to demonstrate that residents have full access to the community. The DHS has conducted thousands of remote reviews, known as “desk audits,” of these forms, largely to ensure that the facilities are actually submitting the paperwork, state records show.
Yet the system is largely dependent on group homes self-reporting problems. The DHS has only conducted 86 site visits of group homes since the new federal rule went into effect nearly six years ago.
Without regular spot checks, it is impossible to determine if group homes are actually delivering the services they list in attestation forms and whether residents are getting out into the community, said Roberta Opheim, state ombudsman for mental health and developmental disabilities.
“Simply requiring providers to submit a form is not enforcement,” she said. “It’s almost as if the (new rules) do not exist.”
There are also signs that Minnesota’s regulators have not kept pace with the growth of the group home industry. Complaints of abuse and neglect at state-licensed group homes have doubled since 2014, to more than 3,400 a year. At the same time, the percentage that are being investigated on-site by the DHS has declined consistently each year, falling from 46 percent in 2014 to 16 percent in 2018, state records show. Only 31 percent of maltreatment complaints have been substantiated over the past five years, state data shows.
Now Minnesota faces heightened scrutiny from a federal judge. In 2016, several group home residents sued the DHS, alleging that the state’s heavy reliance on the facilities is unconstitutional.
A federal judge hearing the case ruled last fall that the agency was violating due process rights by failing to inform people that they can use Medicaid waiver funds to pay for more individualized housing options, and then failing to notify them when such services were denied. The agency’s practices, the judge ruled, forced individuals to wait indefinitely for requested services without the chance to appeal and obtain a fair hearing.
U.S. District Judge Donovan Frank called for a “systemwide remedy” to improve the lives of people living in group homes.
“Actions speak louder than words,” said Justin Perl, litigation director for Mid-Minnesota Legal Aid, which represents the residents. “For decades, DHS has made promises to provide services in the most integrated setting, and yet it has failed to honor that legal obligation.”
It was almost dusk, and a 2-year-old boy with a head of curls was gazing expectantly out the window of a small home in Brooklyn Park.
The boy screamed with joy as Marrie Bottelson rolled her wheelchair to the front door.
“Hi, sweetheart!” she yelled, swinging the door open with her foot. The boy crawled onto Bottelson’s lap as she rolled across a living room packed with her colorful paintings and children’s toys. The smell of roasted chicken wafted from the kitchen.
Not long ago, this cheerful domestic scene would have been unthinkable.
For 13 years, Bottelson, who has cerebral palsy, was confined to two group homes where her daily life was severely restricted. Because of limited staffing, Bottelson said, she was required to be in bed by 7 or 8 p.m. Bottelson, 44, is a successful artist who sells colorful greeting cards and paints portraits at art shows and on commission; yet she had no space to do her work and house rules prevented her from painting in her room.
“Everyone said I would be safe (in the group home), but I wanted more out of life than just being safe,” said Bottelson, who is a plaintiff in the federal lawsuit. “All I wanted was a normal life.”
Then, at a state seminar on disability rights in 2013, she met others with disabilities who were using their Medicaid waivers to live in their own homes and pay for their own staff. No one had ever told Bottelson that such an option was possible. She immediately requested a similar arrangement, but was told by her Hennepin County case manager that she was “not independent enough” for individualized housing.
It took another three years of mediating with county officials before Bottelson fulfilled her dream. She now lives in a warm and bustling home, sharing it with Victoria Yang, a live-in caregiver, and Yang’s two children — Trystan, 5, and Felton, 2. The house is owned by Bridges MN, which provides independent housing for people with disabilities. Her waiver pays for Yang to help Bottelson get ready in the morning and cook her meals, and for transportation to the day activity center where she produces much of her artwork.
No one tells her when she can come or go. Cats jump into her lap as she paints. The children run and grab her shoes in the morning, and kiss her on the forehead at night. Bottelson affectionately refers to the children as “my little family.”
“People used to look at me and say, ‘Oh my God, she can’t live on her own.’ But I showed them that I can!” Bottelson said proudly.
On March 25, 2019, during her announcement of an Elder Abuse Task Force, Michigan Attorney General Dana Nessel laid out seven initiatives for guardianship reform in the state which she touted at listening sessions, directed at the elderly population who were concerned about abuses of the system by court-appointed guardians, as initiatives she could easily push through the legislature. However, the membership of her Task Force included a number of pro-guardianship organizations. Obviously, they have pushed back.
See below photos below:
The initiatives as proposed March 25, 2019 are in the left photo. The photo to the right shows the initiatives as they appeared in Nessel’s Elder Abuse Task Force news letter published October, 2019:
1) The limitation on the number of wards has been removed. Guardians with hundreds of wards each cannot possibly ensure their well being.
2) The requirement for a court to provide written opinions as to why a relative is not suitable as a guardian has been removed. This investigation saw numerous cases in which family members were overlooked and DPOAs were tossed out without reason. The judges are again off the hook.
3) Certification by the national Guardianship Association is simply a matter of paying a $375 fee for a multiple choice exam which a Rhesus Monkey could pass.
4) The requirement that a judge sign an attestation that an accounting filed by a guardian has been reviewed and meets the fiduciary standard has been watered down to “guardian required to file accounting when they manage property of the ward.” The majority of them already do. However, as our investigation noted, there were problems such as over billing, missing money etc.
5) Emergency petitions for guardianship to require a full hearing with the ward present has been removed. Now the language simply states that such petitions can only be filed in cases that “pose a danger of imminent and substantial harm.” Since guardianship petitions are rarely filed with accompanying medical evidence, this language is not only ambiguous but utterly worthless.
6) Similarly worthless is a “Family Rights Form” since probate judges do not follow Michigan statute anyway and attorneys are reluctant to represent families challenging a guardianship. Note that such rights are no longer being “developed.”
7) The language that a guardian’s removal of a ward from their home has been enhanced to include “in a non-emergency situation.” With no accountability, a guardian could still declare that such a removal is an emergency as the ward’s money has run out and the sale is required for long term care (as they already do) or that the home is unlivable – again, something they already do without proof. Also the appraisal requirement is gone which would still allow a guardian to undersell a ward’s home.
Clearly, the Michigan Guardianship and Probate Judges Associations exerted no small amount of influence here just as they did with the 1998 and 2005 Task Forces. This legislation is still in the early stages. Who knows what it will look like if and when it is passed?
Is this enough? Feel free to weigh in. If you are going to share, please be sure to cut and paste the commentary.
The Underground Advocate: What was suppose to happen (Initiatives) and what THAT final outcome was. What a waste of everyone’s precious time and the lives of many, many unfortunate, vulnerable people and the families that love them. This absolutely INCLUDES ALL VULNERABLE PEOPLE, such as those who are severely, multiply-disabled who are remain segregated and isolated within group homes and nursing homes. Anyone over 18 years of age. This isn’t about just the elderly. The neglect and abuse are even bigger than that. Talk is cheap and actions speak louder than words.
Michigan’s AG is putting on a politically-motivated dog and pony show – at the expense of the most vulnerable in the State of Michigan. Sadly and horrendously this is happening NOW all over our country (the elderly and disabled being kidnapped and victimized) and WHY the mainstream media has not picked up on this is puzzling and questionable. Think about that one. I know that I do every single day.
My next post will be all about Emily from an earlier post (Her Name is Emily). Emily’s struggle has gotten more desperate, twisted and warped – as to why she is languishing and deteriorating in a nursing home in Michigan.
Stay tuned. Buckle up ’cause it’s gonna be a bumpy ride!
I’m posting this to remind myself and others – that speaking out on behalf of people in need, I know, is never easy. Sometimes it’s even dangerous – but when hate seems to be everywhere, we can’t rest.
We must be brave. We have to stand up, draw a line in the sand, and take exception to that hate.
We must tell the misguided, ignorant, confused, mean, cruel and evil to back the fuck up.
In anyway that we can, we must protect those who are less-fortunate and those who are considered “less than”, because I believe that THEY are the “most” of all of us. They decide who we really are as human beings. Let that sink in for a moment.
Before I begin to get deep, dark and dirty, know that at the heart of ALL that I do (say and write), is not just for my child’s sake alone – but for all of those who are struggling in a world of hurt.
I have found that in the quiet of the night, when my mind is not at rest, ideas come to me – and I accept that these thoughts come into existence almost like an outside force and as a way towards making the world a better place – in spite of those who build walls to keep people in and to also keep people out.
No matter how awful or sad it gets, we can’t ever give up. We’ve heard it said, It’s always darkest before the dawn. And so from time to time, as we wage what seems to be an all-consuming battle against the darkness, we must remain vigilant that we don’t lose ourselves as we make our way to the light of a new day.
This next post has to do with the reason that I decided to start a blog – and why I choose (at this point), to be anonymous. I may not always write well, but it’s still important to write – and put the truth out there for others to read. I hope that this might lead others to make a difference in their own communities – wherever that might be. Together, even one person at a time, we can right the wrongs in the world.
My son lives in Purgatory.
He’s neither here nor there when it comes to a good quality of life. It hasn’t been for my lack of trying to make it better. After all these years, I’ve hit a brick wall. It’s a wall of nothingness and nowhere. It’s impenetrable and feels like a presence; a thing that exists that seems physical – that I can’t see my way around. It’s a wall of apathy that appears to be growing day-by-day.
My son, who lives (I’ll say it again) in a group home, was medically neglected last year, and because of what didn’t happen is the reason that I felt that it was necessary to tell HIS story, which I believe is the story of many people. I know that this happens, every day, to many people in the United States and most certainly out there in the world. It’s happening at this very second.
I’ll add to that, the fact that no one in my morally and ethically irresponsible, backwards county even tries to understand that ALL people, even the most-involved – whether physically or developmentally-disabled – have the same feelings as ALL people do. Or if they somehow (in the deep recesses of their minds) know this on any kind of level – they don’t recognize the inherent right of each individual to be treated with kindness and respect – that is not based on some kind of monetary valuation. It shouldn’t “cost” to be considered a valuable human being. Every human being is valuable.
Max is a young man that lives with a
small group of people who are old enough to be his grandparents and
yet… taking a trip to Walmart or going through McDonald’s
drive-thru is considered a “community outing” and he lives in a
college town! There is a lot more to do here, but no one has any
vision. No one cares and there is such a lack of creativity that it
stymies and infuriates me. WTF?!
I could go on and on. Here, everyone in power, has that old-style, group home mentality thing going on. It’s miserable. It’s 2019. Not the 1970’s. Unfortunately, it does matter where you live. It matters which state you live in. It matters what county you live in. It matters what your base beliefs are and it matters what kind of people live in your community, as in are they good people who care or are they selfish and apathetic? And so what happens to many, many people in the United States (and I’m sure in other countries in the world… but I’m waiting to hear from others so I can include their personal stories in this blog)?
Warehousing. That’s what happens.
Those who are severely, multiply
disabled and nonverbal – and have no way to communicate their
wants, needs or desires in an “understandable” way to others who
are not disabled, exist in a vacuum. They live in a kind of
limbo-land. This includes the elderly who are
developmentally-disabled and live in group homes. It happens in
nursing homes. I’ve seen it up front, real and in-your-face.
This is the only place on this blog where I will write specifically about what happened. I have relayed the course of events to everybody that I know and all of those who are involved in Max’s life. This includes many advocacy groups/organizations at the state-level. This has led me to the horrendous realization that these are most certainly not in place to help individuals or their families. They’re more like money-raisers FOR the people that work there.
Back to Max.
Max had skin breakdown in the coccyx
area. In the past, the plan had always been for him to have complete
bed rest until healed – with of course scheduled range of motion
and repositioning every 2 hours. Skilled nursing was called in by
order of his primary care physician (PCP). The nurse, following dr’s
orders, wrote in the notes that he was only to be out of bed for
Almost a MONTH later she learned, and then I learned (after she notified me on the same day that she found out), that he was up and all over the group home, sitting up in his wheelchair, and out in the community going places – when he was only suppose to be out of bed for meals. What were they thinking? Why did this happen – especially considering what had been protocol for his care in the past?
After the nurse called me, I
immediately called his PCP – who was out of the office on vacation.
I spoke to a nurse practitioner (NP) – who was covering for the
PCP. I explained what I had just discovered and we consulted.
It was agreed that the order would be faxed to the group home, that stated Max was to have “complete bed rest until healed” – and this was done. I have in my pile of documentation, a copy of this ONE page fax.
Probably within an hour of this, I received a phone call from a representative of the group home (contracted by the local CMH) telling me that Max would NOT be eating or drinking in bed.
So they willfully went against doctor’s orders and THEN got him up just for meals.
The nurse was lied to when she was told that they (the company that owned the group home) had a “written policy” that residents were not to eat or drink in bed, as this was reasoned as a choking hazard.
The nurse asked for this written policy. This was never given over because one didn’t exist. Of note, Max has a hospital-style bed where the head rises; the knees rise – either together or separate and the entire bed goes up and down! Many people are fed in bed and given drinks… you know…. like people in hospitals who are ordered to bedrest. What it REALLY came down to is that there weren’t enough staff for someone to sit or stand there to watch him after he ate – to make sure that he didn’t aspirate or vomit (reflux) for 15 minutes to ½ an hour. Not enough staff….not enough staff…. and this is how it goes in group homes across the nation. Number one reason – the pay sucks and the companies who own the group homes suck even bigger.
Max was harmed. The damage was already done. During the time that Max has lived in this group home, he’s lost a huge amount of weight. No one knows why at this point. He eats and he eats well. It’s still a mystery to be solved, but the seriousness of this grew when the medical neglect happened.
Because doctor’s orders weren’t followed, Max lost even more weight that he couldn’t afford to lose – from muscle atrophy. This has also exposed him to increased risk of worsening skin breakdown in the future. He no longer has a “butt” or the padding that goes with it! It took over a month from the time this began until it finally ended in healing …. because they never followed doctor’s from the beginning. If they would have followed what “worked”, and kept him in bed until healed, he would have probably been totally healed in 3 days (historically).
I filed a recipient rights complaint
against the group home. I would like to note that my intent was that
the complaint was suppose to include the local CMH, because THEY are
the ones that contracted with this home to provide care for my son.
Therefore, it has always been my opinion that they were just as
responsible (culpable) when it comes to the care he receives… or
not. The buck stops there. But THEY bowed out and didn’t do what
they were in place to do. His CMH worker (as a titled social worker)
was by definition a mandated reporter. She didn’t do her job. She
did not protect Max. But within this system is a “I’ll scratch
your back, you scratch my back” agreement. It happens in the court
system as well. It happens in politics all the time. It seems to
be the way-of-the-world.
So over the next SIX MONTHS I went
through the process of denial at the local level (they said no
wrong-doing) through the local CMH. Then I filed an appeal of this at
the local level (again CMH), which led to another denial by the CMH’s
appeals committee (was I really surprised?).
The next step was to file an appeal at
the state-level, which was also denied.
Of note, I contacted Adult Protective Services (APS) once I discovered what happened and the resulting damage that not following orders caused Max. Ultimately the county APS investigator refused to take additional information and pictures from me – that further demonstrated the medical neglect. He said that he “had all that he needed and he had interviewed everyone”. He interviewed staff – who were afraid for their jobs. I live in the real-world and yes it happens. People lie; don’t tell the whole truth, etc. And it HURTS the vulnerable and it makes the world a miserable place. The struggle is real.
I was shocked when he told me this. I
sat there mortified. I had just been confronted with actual
corruption within a broken system! My eyes were finally open.
After I filed a complaint at the
state-level (DHHS), I received a letter from them acknowledging
receipt of my complaint, with the statement that they would get all
information regarding this from the local CMH and they would either
uphold the original decision (which was a denial) or refer it back to
the local CMH for further consideration and investigation.
Now WHY would this be referred back to
the CMH that denied it in the first place?
Well…. because it’s written into our
state’s Mental Health Code.
How’s that for fucked up?
Max never had a chance. The deck was
and is still stacked against him and others.
I contacted three different attorneys. None would take on this case. Want to know why? Because it wasn’t worth it to them. Period. Max didn’t die. Max healed. Max wasn’t permanently (further) maimed, disfigured or harmed (I could argue that). The harm wasn’t ongoing (I could argue this too – he ended up in Physical Therapy that I initiated on his behalf). It wasn’t worth their time and they wouldn’t let me explain anything further past their “intake interviews”. And I am poor. In fact I am below the poverty-level on SSI/Social Security.
The next step after denial at the
state-level would have been to take it into court. I couldn’t afford
to do that and none of the advocacy organizations that were suppose
to be in place to help people with disabilities and their families
would take this on. This is the world that we live in now.
But I’m not giving up.
I DO believe that it’s important for
those reading this blog to see the TRUTH.
When I’m able, I will add blacked-out
documents to this post, because it’s really happening, and I know
that it’s happening to others – especially to others who have no one
speaking for them or advocating for them.
I never thought that this could ever happen in the United States, but here it is… and “everyday” people are probably oblivious to it. However, it does happen every day to everyday people. People with mental illness; people who have addictions; people who are other-disabled – whether developmentally or physically or medically-disabled. People who are “different” – not wrong, but different. People who see the world differently than the main-stream. People struggling and needing help. People who are ignored or disenfranchised. People who have no one who cares to advocate for them on their behalf. People with no family or friends; those who are alone. What’s the world come to? Locked or held hostage in group homes, nursing homes, hospitals, institutions. Power, Control, Abuse, Corruption…. for the money – and what is the cost of a human soul?
Currently (well….I guess for quite some time), I’ve slowly (too slowly) become cognizant of a world that is far from what I thought it to be. I knew that there were uncaring, cruel and evil people in the world, but I didn’t realize how many there were, hiding out as “good people”; those who were suppose to be in place to help those in pain; the poor, the hurting and sick. Instead, they became the victimizers.
Below is a story I read today that speaks to this. I know that this is happening. My son is living it. And in the end, there are unanswered questions that deserve to be answered and must be answered.
As a critical psychiatrist, I am a daily witness to the civil rights abuses of people that struggle with mental health issues. The outrage I feel has compelled me into action to assist people caught in an unfair system. Last summer, I teamed up with attorney Elizabeth Rich to help a woman named Leslie.
I met Leslie last spring when I was covering for another psychiatrist at a rural hospital in Wisconsin. A single mother of three small children, Leslie had been admitted to an inpatient psychiatric unit two weeks prior, after she’d contacted a crisis line seeking help. At the time, she had suicidal ideation and a plan to harm herself, but no real intent to end her life.
Leslie had been placed on an emergency detention, which is the first step in the process for mental health commitment in Wisconsin. The process has two phases: After a 72-hour emergency detention at the time of admission, either the hospital takes no further action or the attending psychiatrist requests a probable-cause hearing (meaning he or she believes further hospitalization and/or mental health commitment may be required). The hearing must take place within three business days. A judge then determines whether or not to find probable cause based on testimony by the treating psychiatrist and any witnesses. The judge’s ruling will almost always concur with the psychiatrist’s recommendation, so it is usually a routine hearing. If probable cause is found, the patient must return to the hospital and two court-ordered examinations are to take place within a two-week period, after which a final hearing is held. The judge will rule at the final hearing for mental health commitment or not, once again judges generally follow the county psychiatrist recommendations.
The hospital’s attending physician did request a probable cause hearing for Leslie, and she therefore stayed in the hospital awaiting a final hearing that took place 10 days later. The judge placed her under a commitment to her county of residence.
Stuck in the Hospital
I was scheduled to work at the hospital for five days and after meeting Leslie, had intended to have Leslie discharged at the end of the week. As I saw it, there was no further reason for inpatient care. She was no longer having suicidal thoughts, nor was she showing signs of depression or psychosis. She had had a medication adjustment, having been placed on an antidepressant, citalopram, upon admission and discontinued from her previous prescription for Depakote. (Depakote is an anticonvulsant or antiepileptic medication commonly used for mood stabilization. It has serious potential side effects and is contraindicated for women of childbearing age in most instances.)
However, the hospital’s social workers handling Leslie’s discharge indicated that the county planned to place her in a group home. They mentioned that the doctors who had seen Leslie previously were upset because they did not agree. One of the psychiatrists’ progress notes even said that there would be negative consequences for Leslie if she were to enter a group home. Because group home placements generally last 6 to 12 months, she was at risk of losing her full-time job or even custody of her children. One can only imagine how stressful it would be for a mom to have her kids placed in a foster home and her pets at the Humane Society while being forced to live in an institutional setting. It did not appear to any of us that a group home was indicated, so I told the social workers that I still intended to discharge Leslie on Friday.
The social workers reiterated that I could not discharge this patient. One told me, “She is court-ordered to be in the hospital.” That statement was false because in Wisconsin, the mental health commitment statute stipulates that patients stay in the hospital only “until stable as determined by the psychiatrist.” In spite of my efforts, I ended up having to keep Leslie there. I would soon be leaving, after which another psychiatrist would be working the weekend and yet another psychiatrist would be seeing her on Monday.
Bringing in a Lawyer
I could not stop thinking about the fact that Leslie had had three different psychiatrists recommend that she be discharged back home instead of to a group home. After several days of thinking about what I could do, I was able to locate the name and number of the public defender that had been representing Leslie for the court commitment process. I asked her whether Leslie could legally be discharged to a group home even without the recommendation or approval of her treating physicians, nurses, and social workers; she told me yes. I then asked her to call the county and request a hearing because, in my opinion, a group home was not the least restrictive setting. Mental health patients who are committed to a county in Wisconsin are supposed to be in the “least restrictive setting” possible. The public defender was able to schedule a hearing for the following Wednesday morning.
I changed my schedule so that I would be able to testify in person; my plan was to ask two of the other psychiatrists who had seen Leslie in the hospital to testify by phone that she did not need to live in a group home. I spent time gathering records and preparing for this hearing. The next day the public defender called me back and said the county was not even going to hold a hearing and that Leslie could return to her apartment, job, and caring for her children. We were ecstatic. We both believed that it would have been a violation of Leslie’s civil rights to prevent her from supporting herself and her family, and that she was a very good mother. I assumed that was the end of the story.
Picked Up in Handcuffs
Several months later, I was on call at the hospital where I work, not the hospital where I initially met Leslie in Eau Claire, Wisconsin and I was covering emergency room admissions to the inpatient behavioral health unit. That evening, I got a call from an emergency room physician at the other city hospital who told me he had a patient that had been detained on a “pick-up order” through the county. If someone is thought to be in violation of their mental health commitment order, their social worker can get an order from a judge to have the person brought to the hospital — usually in handcuffs, whether or not they are resistant. I asked the patient’s name. It was Leslie. The doctor said after observing normal mental status and behavior “I don’t know why she is here, and she does not know why she is here.”
Leslie had not been experiencing any mental health symptoms, but suddenly the police came to her apartment, handcuffed her, and brought her to the hospital. It turned out that her social worker had filled out a form saying that Leslie had missed appointments and was not taking her medication. Leslie had, in fact, missed appointments, but it was because she was working double shifts one week and could not get a babysitter the next week. She said that she did stay in touch with the social worker regarding her whereabouts, however. Also, Leslie had been very sick with the flu and had missed some doses of her medications due to vomiting. She had also been placed back on Depakote prescribed by the county psychiatrist despite its risks to her reproductive health. Most importantly, according to the social worker, Leslie had had a “drastic change in her appearance.” She had dyed her red and gotten a facial piercing, which “raises questions about whether she was on the verge of hypomanic behavior.”
Leslie was not experiencing any depression, psychosis, or suicidal or homicidal ideation. She was not a danger to herself or others. Yet she had been picked up by police, placed in handcuffs, and brought to the hospital. All of the nurses were aghast that somebody could basically get arrested because they dyed their hair and got a facial piercing.
Leslie’s social worker intended to have her placed in a group home and came to the hospital to read her her rights, as is required by Wisconsin statute. However, the social worker did not meet the deadline; Leslie’s rights were to have been read to her at least 48 hours from the time of detention. These rights included receiving a hearing before a judge to determine whether or not group home placement was indicated. Yet Leslie’s social worker informed her that she was not entitled to a hearing because she was already “under a mental health commitment.” This was not true, and the staff at the hospital and I succeeded in obtaining a hearing for her.
Lining Up Witnesses
I was extremely upset by the way the county was treating Leslie and volunteered to help her prepare for the hearing so she would be allowed to return home. I took a chance by calling a wonderful attorney, Elizabeth Rich. Elizabeth had called me the previous winter to ask if I would help her get people off commitment in Wisconsin. I hoped she would return the favor. I called her on a Saturday afternoon and explained that we needed her to represent Leslie at the group home hearing. “I’ll do it,” she responded. “I’ll do it for free!” This meant registering as the public defender for the case.
As I explained earlier, Leslie had a legal right to a hearing before a judge within a 10-day period from the time of her original detention. The hearing was scheduled for the tenth day after; by that point, she had already been placed in a group home by her social worker after being incarcerated in the hospital for seven days. Generally quite compliant, Leslie went along with the whole process.
During the days leading up to the hearing, Elizabeth and I were working hard trying to line up people to testify on Leslie’s behalf. I asked Elizabeth to call the county attorney to beg him to drop the hearing since there were going to be at least two psychiatrists testifying that Leslie did not need to live in a group home. I then found a third doctor who had seen Leslie in the hospital and also agreed to testify. He believed that Leslie had bipolar disorder — a diagnosis with which I disagreed- and wanted to make sure that Leslie would be taking medication, but also thought a group home was unnecessary.
Then, Elizabeth asked me to have some of the nurses testify because they were so shocked that someone could be committed due to changing their appearance. The nursing staff had noted that Leslie was not experiencing any mental health symptoms that would require incarceration in a locked psychiatric unit. There was no dangerousness present, as is required by the Wisconsin mental health statute on involuntary commitment. In all, Elizabeth and I were able to round up seven witnesses — unheard of for a group home placement hearing.
On the day of the hearing, I was on my way to compete in a horse show several hours away. Suddenly, I got a text from Elizabeth Rich: “We won.” She explained that soon after she filed the case at the online court-system site indicating that we were going to have seven witnesses, the county dropped the hearing. I had the wonderful task of calling Leslie at the group home to tell her she could leave the next day and go back to her job and children.
Always the eager beaver, Elizabeth right away wanted to work on the next step for Leslie, which was to fight her upcoming recommitment hearing. Leslie’s original commitment order had been for six months, which would be up in September. Typically, counties will recommend an extension of the commitment, or recommitment. An individual under commitment in Wisconsin has the right to request a jury trial at this hearing. As part of this process, Elizabeth asked me to complete a mental health report for Leslie, which of course recommended no further commitment and no court-ordered medications. Elizabeth assured me that she had had good success requesting jury trials. Thus far, the county had dropped the entire recommitment process after receiving her requests, because going through a jury trial is a tortuous process that takes a lot of the court’s time and the county’s money.
Soon after filing, Elizabeth learned that Leslie would not have a recommitment hearing. The county had indeed decided to drop the petition to extend her commitment. With a request for a jury trial and my emphatic report indicating that Leslie had been compliant and sought help when appropriate, the county had very little reason to hold her.
Leslie had one more month left on her commitment. For some reason, her social worker would not allow her to see me for outpatient medication management; she had to see the county-appointed psychiatrist. Leslie did not want to rock the boat and complied. However, the mental health statutes do not indicate that individuals under mental health commitment are required to see a specific psychiatrist. By not allowing Leslie to see the provider of her choice, the county once again violated her civil rights.
System: Out of Control
There is no end to the overreach of the mental health commitment process I have observed in Wisconsin. It is out of control. Elizabeth Rich and I have teamed up to continue our battle on behalf of Leslie and several other individuals with recommitment hearings coming up. We seek to reform the legal and medical practices in our state that do not help patients, often actively harm them, and deprive them of their rights.
According to Elizabeth, misinformation delivered by social workers during the involuntary commitment process is commonplace. Social workers confidently misstate the law regarding the rights of mental health patients. It may be that they are genuinely mistaken. More likely, they are pushing their own agenda on a person in a vulnerable state who is unrepresented by counsel. In Wisconsin, people subject to an involuntary commitment are entitled to representation by an attorney appointed by the public defender’s office, regardless of income.
Wisconsin also has very specific requirements regarding the principle that the “least restrictive alternative” must govern all aspects of the involuntary commitment process. Under the law, each patient shall “have the right to the least restrictive conditions necessary to achieve the purposes of admission, commitment or protective placement.” The Department of Human Services regulations also stipulate that “each patient shall be provided the least restrictive treatment and conditions which allow the maximum amount of personal and physical freedom…”
Once she was released from the inpatient facility after her initial detention and treatment, Leslie was subjected to what is euphemistically called “assisted outpatient treatment,” a failed paradign of involuntary treatment and forced drugging. Leslie’s story highlights another glaring deficiency in the current system: the lack of freedom to choose one’s healthcare provider and to stop taking medication prescribed by the county doctor — even when the medication is contraindicated and harmful to the patient.
Medically speaking, one of the main problems I notice in my new role as a critical psychiatrist is that many of the same people who have repeated hospitalizations are also under commitment and must take court-ordered medications. These people tend to be admitted for obsessive suicidal thoughts and self-harming behavior, and the usual culprit is excessively high doses of medications. People with mental health issues who react negatively to antidepressants and other drugs are usually prescribed higher and higher doses, with correspondingly greater and greater agitation, akathisia, and obsessive suicidal thoughts. I see this especially in adolescents placed on high doses of antidepressants, which are not even FDA-approved for use in this age group.
Leslie’s heavy-handed treatment at the hands of the police is the norm in Wisconsin and elsewhere, and was completely unwarranted and unlawful. When someone on an involuntary commitment misses an appointment or engages in behavior that a county doctor or social worker deems “risky” or “noncompliant,” all it takes is a phone call to law enforcement to bring on the humiliating and frightening experience that was foisted upon Leslie. There is usually no attempt to use less restrictive means to gain compliance, such as a phone call to the individual, and no hearing before a squad arrives with flashing lights, attracting the neighbors’ attention. They look on as officers pound on the person’s door, then take them down like a criminal, handcuff them, toss them in the squad car, and haul them off to a lockdown inpatient facility.
This Wild West, “shoot first, ask questions later” approach has no place in a democratic society. Yet that is how alleged noncompliance issues are routinely handled. This is a clear violation of due process rights, as well as a violation of the least restrictive alternative requirements that every state has in place for involuntary commitments.
The Challenge Ahead
The lesson of Leslie’s case is that launching a successful attack on involuntary commitment and governmental excesses requires a strong attorney/doctor team. One is not likely to win without the other. However, it is not easy to find a doctor, like me, who is willing to depart from mainstream medical philosophy. Nor is it easy to find an attorney like Elizabeth, who is willing and able to buck the typical rubber-stamp judicial system, especially pro bono or at public defender rates. Also, we doctors need to be well-versed in the law, so we can spot legal issues such as those in Leslie’s case. Similarly, lawyers need to be well-versed in the science behind diagnosis and treatment of the “disorders” identified in the DSM. Otherwise, our ability to spot issues, cross-examine medical experts, and make effective arguments will be severely hampered. The Wisconsin-based nonprofit foundation Andrew’s V.O.I.C.E. — which stands for Victory Over Involuntary Commitment Excesses — intends to develop a webinar series to provide this type of education for attorneys and medical professionals.
In speaking out about and resisting these mental health system practices, I know I’m going against the grain. But it is very rewarding. I am helping people — but in a way I never anticipated when I decided to become a doctor.
Michigan AG Dana Nessel, with MSC Justice Richard Bernstein at left, Justice Megan Cavanagh at right, announces formation of Elder Abuse Task Force May 25, 2019.
In the frigid, early morning of Monday, March 25, 2019, Michigan Attorney General Dana Nessel held a press conference announcing a taskforce primarily charged with reforming a court system rooted in medieval English law.
According to state and national activists, it’s a system that has been left unchecked for decades and is now so broken that it has led to unprecedented judicial overeach and the eradication of the constitutional, civil and human rights of thousands of Americans who have suffered from resulting neglect, isolation, abuse, torture and theft on a massive scale, allegedly at the hands of the same individuals assigned to protect them.
Both in Michigan and nationwide, the system is called “guardianship” and/or “conservatorship.”
Once assigned to an individual that a probate or family court judge declares “legally incapacitated” and unable to manage their own affairs, often a complete stranger in the form of a court-appointed guardian or conservator assumes control over every aspect of that person’s life.
U.S. Veteran Gayle Robinson, 83, of Westland, Michigan was forced out of the home in which she and her husband raised 10 children and lived for 50 years, and into a nursing home, by Wayne Co. Probate Court.
Every last possession, penny and decision is handed over to one of Michigan’s professional guardians and conservators culled from a pool of county public administrators, estate and probate attorneys or private guardianship companies.
In as little as a year, wards have been rendered completely indigent and reliant upon social services and benefits such as Medicaid. Their homes are gone, as are their savings accounts, IRAs, investment accounts, cars, personal belongings, keepsakes, heirlooms, jewelry and even their clothing. Every dollar of their social security, disability income or pensions falls under the control of their guardians with the exception of an allowance as low as $60 per month.
Inevitably, it’s the developmentally disabled and exponentially growing senior populations who are the most affected not only in Michigan but nationwide. Advocates for both groups claim that guardianship, by design, results in a “civil death” for those who are subjected to it and that, although free from any charges of wrongdoing, a person under guardianship has less rights than an imprisoned felon.
Gayle Robinson at the Montford Marine Corps Black History Month Dinner in 2010.
Pro-guardianship organizations claim such statements are histrionic; that a guardian has simply assumed the rights of an incapacitated individual, also called a “ward,” as a protective barrier against those who would exploit them.
However, across the country, wards and their families have come forward with stories, detailing the brutality and horror of a life under guardianship, that belong more in a ruthless, dystopian autocracy than the American experience. In a country where personal freedoms and the rule of law are sacrosanct, incredulous listeners repeatedly ask, “How can this possibly be true? How can this possibly be legal?”
In Michigan, it is not only legal but shockingly easy for an individual to suddenly find themselves under a guardianship. It is a process that begins with a two-page petition filed in a county probate court with no corroborating medical evidence of incapacity and, often, without the knowledge of the prospective ward or their families.
A Life Sentence
In the hours before Nessel’s press conference started, a small group of these families gathered on the broad sidewalk outside the entrance to her offices in Lansing, Michigan. Among them were retired teachers, artists, business owners and homemakers. Black, white, working- and middle- class, they were staunch Republicans, centrists and far-left Democrats, devout Christians and equally outspoken atheists.
Notorious Guardian/Atty. Mary Rowan (seated in blue) grabs Mailauni Williams’ arm in Wayne Co. Probate Court June 13, 2013. Mailauni was the goddaughter of Rosa Parks. Rowan seized the developmentally disabled young woman; her mother did not know where she was at for weeks and it took her months to regain custody. Photo: Cornell Squires
Once–strangers from wildly different backgrounds, they have been united into a small army fighting a daily war so impossible, so emotionally and financially devastating, that only the tiniest shreds of optimism keep it alive.
Optimism brought them to Nessel’s office, where, huddled together in heavy coats holding signs emblazoned in multicolored lettering, they hoped to finally be heard, believed and for something to be done about what they say is unfettered corruption inside Michigan’s probate courtrooms that has terrorized entire communities, no matter their racial, religious, financial or social backgrounds. Even the families and friends of American icons Aretha Franklin and Rosa Parks have been affected.
Families of individuals under guardianship and conservatorship claim that, during a hearing that typically lasted under four minutes, their loved ones were stripped of their freedom by the state’s probate judges with no due process, no jury present and scant testimony offered via the opinion of a probate and estate attorney who had no medical or psychological training.
Their days are now spent inside a long-term care or assisted living facility, placed in a lockdown ward or hidden behind the front door of group homes both licensed and unlicensed, sometimes in subhuman living conditions. Families assert that it is a life sentence for the innocent in which they are drugged and isolated from those who challenge the presiding judge and appointed guardian by fighting for their loved one’s release.
Present Michigan statute is supposed to protect a ward’s statutory rights, such as the right to request a limit on the guardian’s powers or attend a guardianship hearing,. However, attorneys state that judges are routinely ignoring it. Multiple efforts to strengthen the statute, through legislative recommendations made by successive guardianship and senior taskforces, have failed.
We Don’t Have a Say?
Victoria McCasey of Holly and Randy Asplund of Ann Arbor were among group of protesters outside AG office May 25, 2019.
A freelance artist and illustrator, 58-year-old Randy Asplund (shown in photo at left) has been forbidden from seeing his mother Roberta for the past eight months. During her recovery from brain surgery, a 2017 petition for guardianship and conservatorship was filed against Roberta in Ann Arbor’s Washtenaw County Probate Court.
Presiding Judge Julia B. Owdziej declared Roberta incapacitated and, ultimately placed under the guardianship and conservatorship of her to two estate and probate attorneys.
Roberta remains under their control and has been isolated from her son since November 2018, when he tried to bring a legal challenge against the court’s decision to appoint them. Meanwhile, Asplund says his mother’s home has been stripped and her belongings sold off or trashed. He is presently appealing the case and fighting to stop the sale of her house.
Roberta and Randy Asplund, X-mas 2017
“These are people needing to be investigated, prosecuted and jailed,” Asplund says. “Laws are ignored and violated by the courts. The judges use their power to ensure that professional fiduciaries prevail in court, and the ward is almost never able to escape a guardianship or conservatorship.”
But, on March 25, all that was supposed to change with Nessel’s formation of an Elder Abuse Task Force.
Standing outside Nessel’s office, Asplund and his fellow protestors were met with curious glances by passing members of the media hurrying to the press conference. While Asplund managed to tempt a journalist or photographer into a brief, reluctant conversation, others in the group followed the invited members of the media inside the lobby and begged to be allowed to join the event.
Retired Detroit teacher Christine Abood was among them.
Christine Abood with mother Gloria Sullivan
In 2016, her mother Gloria was placed under the control of Oakland County Public Administrator John Yun who put her in a Novi, Michigan, nursing facility. Abood and her sons say they were unable to be at Gloria’s bedside on the night she died because she had been moved and Yun didn’t know where she was.
“I will never forget that, never,” Abood says. “He was supposed to care for her and he didn’t even know where she’d been moved? Why?”
It was a question Abood raised during a 45-minute back-and-forth argument with Nessel’s staffers, who refused her and the other families access to the press conference. She left the lobby, throwing her arms up in exasperation.
“They told us to watch it on Facebook!” She cried to the others. “This is about our families. We’ve been waiting and pleading for something like this and we can’t be a part of it? We don’t have a say?”
An Unacknowledged Narrative
The only victim of elder abuse who was allowed inside the event to tell his story, and so become a focal point for subsequent media coverage of the announcement, was Dennie Burgio (72) who was robbed of his life savings by a close friend.
Nessel emphasized that the majority of elder abuse was perpetrated at the hands of family and friends, a line later echoed by the state’s pro-guardianship lobbyist, the Michigan Guardianship Association (MGA)
” . . . investigations into alleged abuses perpetrated by probate attorneys acting as court-appointed guardians and conservators were never raised” by Nessel
Flanked by Michigan Supreme Court Justices Richard Bernstein and Megan Cavanaugh, Nessel announced nine initial reforms of Michigan’s guardianship system. However, investigations into alleged abuses perpetrated by probate attorneys acting as court-appointed guardians and conservators were never raised. Neither Bernstein nor Cavanaugh raised the prospect of Judicial Tenure Commision investigations into the actions of probate judges.
This, despite the families of those victims having called and emailed both Nessel’s office and that of her predecessors to alert them, as well as filing complaints with both the Michigan Attorney Grievance and Judicial Tenure Commissions.
Milton Mack, now head of SCAO, controls courts state-wide; he was originally head of scandal-plagued Wayne Co. Probate Court, a chief actor in abuse by guardians.
Their complaints, the families assert, were ignored or dismissed; part of an agonizing cycle during which they have been routinely brushed aside not only by the Attorney General’s office but local police, county prosecutors, the State Court Administrator, the Detroit office of the Department of Justice and even local media outlets.
“They tell us to ‘get an attorney,’”Abood says.
It is something easier said than done and, according to national advocates, a challenge common to most families fighting probate cases across the country.
“I’ve been told by local attorneys [that] they wouldn’t take my case because the corruption is too much to prevail,” Asplund notes. “I had to go from Ann Arbor to Lansing to find an attorney who did not usually appear in front of my judge or who relied on the court for business.”
Perplexed as to why they were not invited to the press conference, Asplund, Abood and the rest of the families gathered their collective optimism around an iPhone with the clearest signal and cheered when Nessel pledged that the Taskforce would reform the way the Michigan’s probate courts treat the state’s most vulnerable.
“We know what the problems are,” Nessel said. “So much of being able to cure the problem is to be able to better identify it, how often it’s happening and where.”
But that was far from the end of the story.
The Oakland County Fortress
OAKLAND COUNTY PROBATE COURT, 1200 NORTH TELEGRAPH, PONTIAC, MI
It’s never a good idea to be running late on a Wednesday at The Oakland County Sixth Circuit and Probate Courts, both housed in a stark complex of white and beige structures on 1200 North Telegraph in the Detroit, Michigan, suburb of Pontiac.
On ritualistically called “Motion Days,” each courtroom has a hefty tally of cases that can be called and over in just a few minutes—far quicker than it takes to get inside what local historians once described as a “fortress.”
With the exception of jurors, employees and attorneys, cell phones or recording devices are strictly forbidden. Videos of probate court proceedings must be ordered in advance and can only be watched in the court’s administrative offices. Probate court documents are not subject to Michigan’s Freedom of Information Act (FOIA) and can only be reviewed at the court’s sole public computer or purchased at the cost of $1-per-page plus a service fee.
Behind its walls to public access, Oakland County Probate Court Chief Judge Kathleen A. Ryan, and Judges Linda S. Hallmark, Daniel A. O’Brien and Jennifer Callaghan rule on a list of issues including adult guardianships/conservatorships for incapacitated individuals.
Although in the same building as the Sixth Circuit, their courtrooms operate autonomously from it and with little or no oversight, with the exception of rulings occasionally overturned by the Michigan Court of Appeals. Despite some of those cases revealing shocking judicial actions, in the last 30 years, there have been no formal investigations of an Oakland County Probate Court judge.
True to its description, the court has been as unassailable as the majority of decisions made with a single stroke of a judge’s pen on an order finding a person to be legally incapacitated.
According to the wards, their family members, attorneys, and local and national advocates who were interviewed for this investigation, the consequences of that order are devastating and lifelong.
Lunatics and Idiots
The practice of guardianship has been traced back to 1270 England, when King Henry III “assumed control over the estates of lunatics and idiots.”
As with other laws exported to former British colonies that are still practiced in some form, although the language has changed, the basic principles of guardianship in the United States remain the same, and it is a system about which the majority of Americans remain hopelessly uneducated.
Individuals who are declared incapacitated by civil, family and probate court judges across the US are forced to cede their lives to an authority figure who takes complete control of their homes, mail, bank accounts, retirement and social security income, IRAs, life and health insurance, wills and trusts, property, passports, driver’s licenses and voter registration cards.
Rebecca Fierle, Guardian “angel of death”
He or she also dictates where a ward will live, whether they can own a cellphone or a computer, where they may or may not go, who they are and are not allowed to see and what they are or are not allowed to eat.
In fact, any personal, professional and medical decisions are no longer legally the ward’s own, including requests to doctors to dispense or withhold medication, and whether a Do Not Resuscitate (DNR) order should be enabled and enforced.
Such unilateral power has proven to be ripe for abuse.
In Florida, professional guardian Rebecca Fierle was recently accused of executing DNR orders on her wards without the knowledge or consent of her wards or their family members. One of her wards died of starvation after his feeding tube was capped off.
“It should be blatantly obvious to all who approve of this very old and very entrenched system that such overarching authority should be closely monitored to ensure that wards are safe,” she says. “However, that is not the case. Based on flimsy ‘evidence,’ a person can lose his or her fundamental rights to liberty and property and be handed off to a professional who isn’t monitored or held sufficiently accountable for the welfare of the ward and their assets.”
“A Corrupt Game”
Under Michigan statute, an incapacitated individual is someone who “By reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, [lacks] sufficient understanding or capacity to make or communicate informed decisions.”
A guardian is responsible for the ward’s care, custody and control. A conservator (or fiduciary), handles finances and decisions regarding assets that include managing income, real estate, savings and investments. Both positions are granted a substantial list of powers and can be given to a sole individual.
Michigan gives family members priority over court-appointed guardians who are either estate and probate attorneys, populating one of the largest sections of the State Bar of Michigan (SBM) or private guardianship companies. They are only supposed to step in only when a judge determines that family members or individuals listed on a potential ward’s Durable Power of Attorney documents are unable, unwilling or unsuitable to fill the role.
Some attorneys are appointed as County Public Administrators by the Michigan Attorney General’s office. Primary to their job description is to act as representatives to the estates of deceased individuals where there are no discernable heirs. Nowhere in their job description is it stated that they can act as guardians and conservators.
Yet, Oakland County maintains a present list of 13 public administrators who do just that.
Congratulating Oakland County Probate Court Chief Judge Kathleen A. Ryan (second from right) at the Spring Conference were (left to right) Georgia Callis, vice president, Michigan Guardianship Association; State Court Administrator Milton Mack Jr.; and Amy Katz, president. Michigan GuardianshipAssociation.
In its last statewide caseload statistics for 2018, the Michigan State Supreme Court listed a total of 60,712 adults and developmentally disabled individuals under guardianship and 10,912 adults with a conservator.
With the exception of Veterans (limited to ten), the number of wards each guardian can have is not mandated by state law and varies depending on the size of the county. However, figures which have showed one guardian or guardianship company with over 400 wards caused Nessel’s Elder Abuse Task Force to propose limits, a measure the Michigan Guardianship Association announced they intend to fight.
As of December 31, 2018, the Oakland County Probate Court had 7,064 open adult and developmentally disabled guardianship cases and 1,417 conservatorships.
A guardianship and/or conservatorship in Michigan begins when a petition is filed in a probate court. The two-page document can be filed by anyone, such as a relative, spouse, friend or neighbor of a prospective ward as well as an outside agency including Michigan’s Adult Protective Services (APS), a nursing facility or hospital. Once filed, the probate court contracts and assigns a Guardian ad Litem (GAL) to investigate and determine what actions are in his/her best interests.
In Oakland County, the GAL is an estate and probate attorney who not only files and verbally delivers a report to a judge but acts as a surrogate prosecutor questioning witnesses and cross- examining wards and family members, regardless of whether they are represented by an attorney.
For their services, GALs are paid directly from the ward’s estate.
One guardianship and conservatorship case was decided in O’Brien’s packed and stuffy courtroom on the Motion Day falling on October 10, 2018.
Matthew Martin, Senior Care Network
By the time the case number was called, it was close to lunch and O’Brien had grown increasingly impatient, sternly telling any quibbling attorneys or litigants to “move it along.”
The case was a contested hearing to settle the future of 76-year-old John. For privacy reasons, his last name has been excluded.
The petitioner was Matthew Martin, an external case manager for the Northville, Michigan- based care management company Senior Care Network, an organization which regularly files Oakland County guardianship petitions, who claimed John needed 24-hour care and “assistance applying for Medicaid.”
In delivering his findings as John’s GAL, estate and probate attorney Drew Carnwath recommended that O’Brien assign a public administrator to act as John’s guardian.
O’Brien asked Carnwath to recommend one himself.
Since that was a decision usually made by a judge, Carnwath was confused. “Well, I …” he began.
O’Brien interrupted. “So I don’t get accused of being in on some sort of corrupt game.”
In 1987, an Associated Press investigation of guardianship practices in all 50 states first uncovered what it described as a “burdened and troubled system that regularly puts elderly lives in the hands of others with little or no evidence of necessity, then fails to guard against abuse, theft and neglect.”
In the more than three decades since, it is invariably local journalists, rather than state or federal law enforcement agencies, who have taken the pleas of wards or families allegedly victimized by private or public guardians seriously and launched their own investigations.
In Nevada,New Mexico, New York, Florida,Pennsylvania, Ohio, Texas and California, to name a few, shocking cases have emerged that, together, form an almost identical pattern of behavior. In exercising their powers of protection, guardians and conservators have forced individuals and even couples from their homes and into nursing or assisted living facilities.
Estates that were once worth millions are systematically drained through massive over-billing, unreported expenses or outright theft. Homes in which wards have lived and raised a family for decades are seized and looted by the state. Guardian accountability and reporting requirements, inconsistent from state to state, are not properly followed or disregarded entirely.
Litigation costs for families are colossal and can stretch into years. When families try to seek help from local law enforcement, a city prosecutor, Attorney General or Department of Justice (DOJ) office, they’re sent packing.
Atty. Alan A. May
As part of the 1987 Associated Press investigation in Michigan, journalist Mark Fritz concluded that “Many of Michigan’s elderly people are being stripped of their homes, their incomes and their most basic rights under a misused and poorly monitored legal process that varies wildly in the state’s 83 counties.”
During a brief interview with Fritz, then–Southfield Michigan attorney Alan A. May admitted to “little personal contact” with his 400 wards.
“That is not a knock. That is a truth. There is very little visitation,” May said at the time.
May is currently a shareholder at the Troy, Michigan, law firm of Kemp Klein, a number of whose former attorneys have taken or presently take on cases at the Oakland County Probate Court, including Barbara Andruccioli, Jon B. Munger and Thomas Brennan Fraser.
All three have troubled pasts.
In November 2016, Detroit ABC affiliate WXYZ journalist Heather Catallo launched a year- long investigation into Andruccioli and then–Macomb County Public Administrator Cecil St. Pierre, during which it was alleged that they had partnered with Utica, Michigan, realtor Ralph Roberts in order to open probate cases on deceased estates without notifying the next-of-kin.
Although not included in WXYZ’s investigation, in 2015 Munger was listed as a defendant in a lawsuit filed in Macomb County District Court in which it was alleged that he had been retained by Roberts to open up a probate case on the deceased estate of Helen Ann Adolph. According to the plaintiffs, Munger’s subsequent sale of Adolph’s home was not approved by the probate court.
Andruccioli and Munger were subsequently fired from their roles as public administrators by the Attorney General’s office. St. Pierre was suspended and then resigned.
To date, no criminal charges have been filed.
Munger is still accepting guardianship, conservatorship and deceased estate cases at the Oakland County Probate Court. Roberts and St. Pierre are also still in business. Without explanation, Andruccioli was hired by all four judges as the Oakland County Probate Court Register and paid the highest possible salary of $102,650.
In October 2017, WXYZ aired a short series looking into Fraser’s activities as guardian and conservator, highlighting the billing and treatment of his wards. Ex-Parte motions (emergency and temporary petitions and orders filed without notifying the opposing party) were entered with O’Brien in an attempt to stop the story and any images of the alleged victims’ faces. After an Emergency Appeal was filed with the Michigan Court of Appeals, WXYZ prevailed on First Amendment grounds.
Scorched Earth Litigation
In June 2018, the online national magazine Tablet published an investigation into Munger who, two years earlier, had been given guardianship and conservatorship over a then–92-year-old Oak Park, Michigan, woman Virginia Wahab.
Plaintiff Mimi Wahab Brun with her mother Virginia “Jean” Wahab. Mrs. Wahab passed away in April, 2019 after a two-year ordeal in the Lourdes Nursing Home, which held her against her will. Visits with her daughter were barred
The petition was filed with Oakland County Judge Linda S. Hallmark by a social worker for Lourdes Senior Community, the short-term nursing and rehabilitation center at which Wahab was receiving treatment. Lourdes sought the guardianship because of a $32,000 past-due-bill.
Michigan law does not provide for the use of a probate court as a collection agency.
During her more than two-year fight to regain custody of her mother, Wahab’s daughter Mimi Brun claimed she was denied visitation rights, had a warrant issued by Hallmark for her arrest and filed three reports with the local police department asserting that Munger had illegally entered her mother’s home and looted it.
After the story was published, a July 30, 2018 bench trial on Brun’s petition to terminate the guardianship and conservatorship of Munger was presided over by Hallmark. During a day-long deposition, Munger was asked how many times he had been appointed as a guardian.
“Several thousand,” he replied, but could not precisely cite the Michigan statute under which a guardian is considered necessary.
He admitted to entering Wahab’s home to look for “Information about ownership, assets, bills, any of the above” and to taking a painting that was hanging on Wahab’s wall.
“It’s very colorful. I walk around it every day in my office,” Munger noted. When asked if he had seen his ward lately, Munger replied, “In 2018, I doubt it.”
He also admitted that he hadn’t reviewed Wahab’s medical records since his first visit in 2016.
After a second day of testimony, the trial was adjourned. Before it could resume, Hallmark issued an August 3 opinion and order terminating Munger as guardian and conservator.
“Mr. Munger has satisfactorily provided care, control and custody of Ms. Wahab,” Hallmark wrote. “In all of these matters, Mimi Brun has interfered with Mr. Munger using misinformation, obfuscation and self-dealing. She has engaged in scorched earth litigation. Ms. Brun has demonstrated a complete lack of authority because she believes herself to be the victim.”
“The litigation in this matter has been ongoing for two years,” Hallmark concluded. “The financial and emotional costs to the ward have been significant. It is not in the ward’s best interests for the litigation to continue. Her assets have been depletedbut remain with the family.”
This was the pleasant Oak Park home and neighborhood Virginia Wahab was kidnapped from.
Wahab was returned to her Oak Park Home. She remained under Brun’s care until she passed away in April 2019.
One month later, Brun filed a lawsuit against Lourdes alleging that the facility falsely imprisoned and ransomed her mother. Lourdes has since filed a Motion to Dismiss and asked for punitive sanctions against Brun and her attorney. That case is presently pending.
The Consequences of Talking
Families claim there are very few Michigan attorneys who are willing to take their cases against an Oakland County Public Administrator, and that those who do charge retainers that are far out of a family’s reach.
The Oakland County Probate Court has a reputation that’s no secret to attorneys practicing Michigan estate and probate law. Those who agreed to talk about the court admitted to a pervasive fear of openly criticizing any of the four judges or Oakland County Public Administrators. The attorneys claim that making such a challenge, whether in court or in public, can lead to sanctions placed against them or the possible removal of their license by Michigan’s Attorney Discipline Board.
One attorney, who has defended wards and families in front of Hallmark and O’Brien, spoke on condition of anonymity and was given the alias “Paul.”
“I knew of one client who has been through 60 separate attorneys, none of whom would help her,” he says. “I’ve heard from clients whose previous attorneys were threatened.”
While threats do not deter him from taking on Oakland County Probate Court cases, there have been consequences.
Thomas Brennan Fraser
“The judges have been sanctioning me for no reason,” Paul asserts. “I had not been sanctioned in my entire career. I’m trying to enforce the law or the court rules, I always have my briefs filed and they don’t care. They don’t care about the law. They don’t care about the facts.”
“It doesn’t matter what it is—an accounting, a petition to enter a home—it’s the same,” he adds. “I’m the one who’s going to be punished because I’m challenging the judge’s appointees, who they are going to protect no matter what. It’s so obvious to me. Their appointees can’t do anything wrong no matter how egregious it is.”
Paul recalls a case in front of O’Brien during which he demonstrated proof that Thomas Brennan Fraser had committed fraud against his client.
“Judge O’Brien said, on the record, ‘Don’t ever mention that again!” he remembers. “He didn’t say why.”
“The duty of the court is to protect the ward,” Paul concludes. “These are standards that have been codified in writing, but they are breeched on a regular basis. The judges should know, for example, how many wards each public administrator has and, if they have too many, are responsible for finding somebody else. But the judges aren’t paying any attention.”
Wards in the Thousands
Four of the most prolific Oakland County guardians and conservators are Munger, Fraser and Oakland County Public Administrators Jennifer Carney and John Yun.
Between them, they have a total of 4,669 open and closed adult and developmentally disabled guardianship and conservatorship cases.
As of August 1, 2019, their combined open caseload was 1,704.
TOTAL NUMBER OF ADULT AND DEVELOPMENTALLY DISABLED GUARDIANSHIP AND CONSERVATORSHIP CASES– HISTORIC
TOTAL NO. ADULT AND DEVELOPMENTALLY DISABLED GUARDIANSHIP & CONSERVATORSHIP CASES CLOSED/ADJUDICATED
Under Michigan Statute, a guardian has a “Duty to make provision for the ward’s care, comfort, and maintenance and, when appropriate, arrange for the ward’s training and education.” A conservator must “Preserve assets and to expend them for the support, education, care, and benefit of the individual and his or her dependents.”
Can four individuals, each with a limited number of staff members, ensure that those duties are being adequately maintained?
“It’s not possible,” Paul says. “In Munger’s case, that’s why he doesn’t see his own wards, or he sends a staff member with no training at all. If you have 500 people and your interest is to get their home and pay yourself, why would you care about the ward? In my view, all he cares about are ‘where are her assets? How can I sell them? How much money can I get?’”
Public administrators who are assigned as guardians and/or conservators take their attorney and fiduciary fees out of a ward’s estate, with every action they make on the ward’s behalf—from making a phone call to listening to a voicemail—billed at an hourly rate. For example, Fraser bills at $245 per hour. Professional guardians also receive $83 per month per ward on Medicaid, which is taken out of the money received by a nursing facility. The Michigan Guardianship Association has consistently lobbied for an increase, claiming that $83-per-month is not enough given the gargantuan task of assuming the life of another person.
Paul says the responsibility is so enormous that guardians with more than 400 wards serve the guardians themselves rather than their wards.
“When you care for another human being, it’s all day, every day,” Paul asserts. “He also has a law practice and an office to run. He has a family life. So, where’s he going to find time to care for the ward? The guardians, themselves, have a duty, as an attorney under the Code of Professional Conduct, to say, “Look, I’ve got 500 people under my care, I’ve got four staff members in my law firm. I can’t take on any more clients. I can’t do [them] justice.”
Petitioning into the Fortress
According to the University of Michigan, “Courts view guardianships as a last resort because the ability of the person to make basic decisions about his or her care, treatment, or living arrangements is being taken away.”
It raises the question as to why Oakland County guardians and conservators have so many wards.
This investigation reviewed 2,278 open and closed cases belonging to Munger, Yun, Carney and Fraser presided over by Hallmark, O’Brien, Callaghan, Ryan and former Oakland County Probate Court Judge Elizabeth Pezzetti.
With two exceptions, each of the cases were the result of guardianship and conservatorship petitions filed by social workers or representatives of outside agencies, including APS investigators, the Senior Care Network, hospital and nursing facility social workers, attorneys and accounts receivables managers.
Of the petitions, the majority were filed by ten APS investigators.
The Senior Care Network is a care management organization. Among its services is assistance filing for guardianship and conservatorship, for which the organization utilizes a dedicated social worker, Matthew Martin.
The petitioner must note “Specific facts about the adult’s recent or condition or conduct” that leads to them to believe a guardian and/or conservator are needed.
In 95 percent of cases, petitioner answers were summarized in one or two vague sentences, or an attached paragraph, noting mental or physical ailments such as dementia, confusion, memory problems, bipolar, diabetes, depression, physical mobility and hoarding.
Other, less specific examples included:
“Mental health hinders ability to maintain employment and make informed decisions or manage her own finances.”
“Joint weakness and mobility issues in apartment. Has issues with hoarding.” “Altered mental status.”
“Non-engagement in mental health services.”
“Does not make sound decisions re: physical health and finances.” “He is declining medication. Lack of insight into his diagnosis.” “A lack of civilization.”
“Patient came in for dizziness and confusion. Incompetent to make decisions for medical care.”
“DPOA will not provide information needed for Medicaid application to nursing facility.” “Family has not paid facility bills and there are other outstanding bills.”
The overwhelming majority of petitions (98 percent) were not corroborated by any evidence, whether in the form of an official diagnosis from a doctor or a medical history.
The Powerless Power of Attorney
Probate Court petition
On the first page of the petition, there is an opportunity to identify any individuals the perspective ward identified in estate planning documents such as holders of a Durable Power of Attorney (DPOA) or Patient Advocacy Designation. According to Michigan statute, such an individual has priority over the appointment of a professional guardian or conservator.
Only 15 percent of petitions made note of anyone named in an estate planning document.
In those cases where such individuals were identified, they were either not present at the initial hearing, or the petitioner claimed they were unsuitable without offering any evidence to substantiate why. The presiding judge then tossed out or invalidated the documents, and guardianship and conservatorship was given to Munger, Yun, Fraser or Carney.
There were also cases in which the holder of a DPOA was also placed under guardianship.
In 2016, Martin and the Senior Care Network petitioned for the guardianship of a then–83-year- old Clarkston, Michigan, woman named Doreen who was a resident of a Lake Orion long-term care facility.
The petition noted her husband Ralph as the holder of her DPOA and added, “DPOA will not provide information necessary for Medicaid App. to nursing facility.”
Presiding Judge Hallmark gave temporary guardianship of Doreen to Carney.
One month later, while Doreen’s full guardianship case was pending, Carney petitioned for guardianship of Ralph, stating that he had “Difficulty with memory and comprehension” and added that his Veteran’s Administration benefits needed to be managed.
Hallmark ultimately gave guardianship of Ralph to Fraser.
The Missing Family
Page two of the guardianship petition includes an available box in which to list any of the ward’s known family members. Like the holders of a DPOA, family members have statutory priority over the appointment of a professional guardian.
In 65 percent of occasions where none was noted on a petition, the ward did, in fact, turn out to have a family.
Such was the case of a then 69-year-old Pontiac woman named Cynthia. In the petition for guardianship, an APS investigator alleged that Cynthia suffered from “three strokes, psychosis mania, expressive aphissa [sic] and is often paranoid that people are after her.”
While acknowledging that Cynthia did have a married couple who held her Power of Attorney, the investigator noted that they weren’t “Able to assist her anymore.” The box notating families was referred to the “Attorney General.”
Similarly, a three-paragraph report filed by Cynthia’s Guardian ad Litem insisted that she “Has no family and lives alone.”
However, Cynthia had an adult daughter, Heidi who filed a petition to terminate her mother’s guardianship three months after O’Brien had assigned Carney to the position.
In an accompanying brief, Heidi stated that she had not been not served the initial petition or any notice prior to her mother’s guardianship hearing. Why neither APS nor the Guardian ad Litem identified the fact that Cynthia had family is unknown.
Suitably Trained Investigators?
Such glaring errors in a petition, alongside claims of incapacity made without corroborating medical evidence, raise the question as to whether social workers, such as APS investigators, have been properly trained before conducting an investigation of a potential adult ward.
Dr. Peter Lichtenberg, PhD., is a Clinical Geropsychologist, Professor of Psychology at Detroit’s Wayne State University and Director of the Institute of Gerontology.
Dr. Peter Lichtenberg with older clients at WSU Institute of Gerontology.
“I’ve been working very closely with APS supervisors and staff over the last four years,” he says. “I found that, like all people who enter the caring profession, there’s a lot of talent and skill. There are huge caseload burdens. Often, [investigators] come from Child Protective Services [CPS] or domestic violence. So, they’re coming in at a deficit in terms of understanding geriatric issues.”
“It takes a lot of experience and it takes a team approach,” he adds. “Unfortunately, these workers are out there investigating a case under a time pressure and by themselves.”
In a 2016 petition for the guardianship of a then–88-year-old Korean War veteran named Raymond, an APS investigator claimed that he “Suffers from memory loss. He is not able to manage medications. He is not able to handle his daily living skills.”
However, according to Raymond’s Guardian ad Litem, his attending nurse stated that “She did not understand why APS was involved in this case or why an emergency petition was filed. It is [her] professional opinion that there is not a need for an emergency appointment of a guardian.”
Presiding Judge Ryan did not concur and appointed Carney.
The Guardian ad Litem
Seventy percent of cases reviewed began with an Emergency Petition for Guardianship.
This meant that Yun, Munger, Carney or Fraser were appointed to the role of temporary guardian on the same day the petition was filed or shortly afterwards. Coinciding emergency petitions for conservatorship have also been granted. The prospective ward was neither given notice nor an explanation of their rights under Michigan law before being placed under their control.
Gaurdian Ad Litem report that notes client does NOT want guardian and wants to know how to petition to remove the guardian.
Ordinarily, those rights are explained to the prospective ward during a personal visit from a GAL.
They include the right to contest the petition, to be present at the hearing, to be represented by legal counsel and to request limits on the guardian’s powers.
William Spern, atty. GAL
In a written report, which must be filed no later than 24 hours prior to a guardianship hearing, the GAL is instructed to note whether there are alternatives to the appointment of a full guardian, if the proposed ward wishes to exercise their right to contest the petition and be present at the hearing, or whether there are any objections to the execution of a DNR. The report should conclude with a GAL’s recommendations, either for the appointment of a guardian and/or conservator, or for a contested hearing.
In 100 percent of the 2,278 cases reviewed, the GAL was an estate or probate attorney with no discernable psychological or medical background.
Nevertheless, GAL reports—which varied anywhere from a five-page, detailed investigation to a few paragraphs to no narrative at all—included the GAL’s own determination of a potential ward’s incapacity.
In numerous cases, a GAL concurred with a guardianship petition, claiming that the proposed ward had some form of dementia or memory impairment, if they could not answer one or all of four questions pertaining to the date, their birthday, the day of the week and the name of the US President.
“Nobody can ask four questions and determine whether someone has capacity or not,” Dr.
Lichtenberg says. “Ideally, [a GAL] would join forces with somebody who has a background like mine where they would get a good assessment of cognitive strengths, weaknesses, mental health problems and try to apply those to the legal standards.”
Objecting but Not Present
Curiously, in 97 percent of the occasions when a potential ward emphatically voiced objections to a guardianship, the GAL also claimed that the individual waived their right to be present at the guardianship hearing.
A Director of Nursing for multiple long-term care nursing facilities for over two decades, “Gladys” requested an alias be used.
“We have patients and residents who come in who have Medicare, which provides for a 20-day stay at a long-term facility,” she says. “If they are still in need of care, you will see a petition go out for temporary guardianship. The [GAL] will visit for all of five minutes, if that. They will say they are from the court and ask me or a nurse caring for the patient to sign off on their visit.”
“Half the time, the patient may not know what’s going on because they don’t tell the patient anything,” she adds. “After a visit, I’ve gone in and asked the patient, ‘What did they say?’ The patient tells me, ‘I don’t know, they said they were a lawyer.’ Then, I say, “Did they ask you anything?’ and the patient says, ‘No.’”
Gladys emphasizes that “A lot of times, [GALs] don’t even see the patient because the patient is in physical therapy and they don’t want to wait that long.”
Even when the GAL recommends a contested hearing or, on rare occasions that the petition be denied, it does not mean an individual targeted for guardianship is out of the woods, something particularly true in cases involving APS.
When a contested hearing is recommended, the presiding judge orders an Independent Medical Examination (IME) to be conducted on the prospective ward and appoints legal counsel. The court has published a roster of 14 Michigan-based psychologists who “Have expressed interest in doing independent evaluations for Oakland County Court proceedings.”
However, in 97 percent of IME orders reviewed, only three doctors were regularly used, as well as one attorney who also is a “limited-license psychologist.” The results of these examinations are not made part of the public record. Judges such as Ryan have consistently ordered them to be “Faxed directly to chambers.”
Meanwhile APS invariably lawyered-up in advance of the hearing.
One of the attorneys they typically use, Heidi Aull, is employed by former public administrator Cecil St. Pierre, who resigned from the position in 2017 after WXYZ’s investigation into the opening of deceased estates without notifying next of kin. APS has also been represented by a lawyer assigned from the Michigan Attorney General’s office.
The ward, on the other hand, is usually provided legal counsel from the same pool as the Oakland County GALs.
Contested hearings involving APS always resulted in guardianship.
A 2015 petition filed by an APS investigator against a then-84-year-old White Lake, Michigan, woman named Betty asserted that the “Proposed ward’s spouse died in 2013. No children. Home is paid off. No other family. Ward has signed papers and doesn’t remember what she signed. Doesn’t always know what she has done with her money.”
Betty’s GAL reported to the court that she was “A pleasure to spend time with, knows what is going on with her money and where it goes. [Betty] is doing exactly what she wants with her environment and I argue on her behalf that [neither] this Honorable Court nor the Department of Human Services-Adult Protective Services should intrude in it.”
Presiding Judge O’Brien ordered a contested hearing for which APS retained a Special Assistant Attorney General.
After the hearing, O’Brien appointed Fraser as Betty’s full guardian. Two months later, Betty wrote a letter to the judge.
“I am sorry to report that I have [had] no word from Mr. Fraser since he first advised me he was my full guardian,” she asserted. “I don’t know if I get an allowance. I have a small dollar amount in my account I assume is no longer mine. I’m lost. My medications come in the mail and have not been forwarded to me. I need them! Please advise me what to do.”
By 2018, Fraser had moved Betty to a nursing home. In an account the public administrator filed that year, between patient pay and his own legal fees, he had spent all but $367 of Betty’s annual $20,000 social security income.
Guardianship and conservatorship cases at Oakland County rarely have a happy ending. With few attorneys willing to take on their cases at an affordable rate, families often enter the Oakland County Probate Court unrepresented by an attorney (pro se). Since these are civil cases, the family does not have access to a public defender and, they claim, legal aid organizations are either unresponsive or unwilling to assist.
Without knowing their rights under Michigan statute or all 61-pages-worth of Michigan court procedures, families enter hearings at a marked disadvantage and without a clue as to what to expect.
Requests for interviews concerning the Oakland County Probate Court made by this investigation to legal aid organizations, both inside and outside the county, went unanswered. The Detroit office of the ACLU declined without noting a reason.
In numerous cases observed over successive Motion Days, although Ryan at least attempted a modicum of empathy, families appearing pro se were bullied and berated by Callaghan,
Hallmark and O’Brien, who not only held families to the same standard as the public administrators but, in some cases, gave them far less latitude.
For example, at no time was a public administrator admonished for being late for a hearing.
Nancy Haddock’s eventual fate as ward.
Conversely, family members who do not appear on time can lose their case because of it. When they push back, they are threatened with Contempt of Court or the judge calls in the Oakland County sheriffs who threaten removal and/or arrest.
Catherine Haddock, the daughter of 76-year-old Yun ward Nancy Haddock, states that, before the first hearing on her 2016 petition for the guardianship and conservatorship of her mother, a member of Hallmark’s staff warned her that Hallmark would never allow Catherine to be a conservator owing to bankruptcy on her public record.
She says she was encouraged to accept a public administrator instead.
While such a determination by Hallmark falls under judicial discretion, court records show that Carney filed for Chapter Seven Bankruptcy in December 2010.
The Fight of Their Lives
Pauline in her 20’s/Family photo
Once a guardianship and/or conservatorship case against an individual is set into motion, both the wards and their families end up in the fight of their lives.
Since the case is still in litigation, the niece of a Bloomfield Hills woman, who was placed under Carney’s guardianship in January 2018, asked that both she and her aunt be identified using an alias.
According to her niece Marie, Pauline was born in 1922 in a small town in the Kentucky Appalachians. Orphaned during the Depression, she was separated from her siblings and sent to stay with relatives in Michigan.
Pauline graduated high school early and had been a secretary at the Dearborn “Glass House” headquarters of the Ford Motor Company for only a year before she was selected, out of 300 of her peers, to become the first female Executive Secretary to the company’s Vice President.
She fell in love with and married a local businessman who surprised her by purchasing a lot in Bloomfield Hills and building a magnificent home upon it. Pauline’s husband died of a sudden heart attack in 1973. The couple had no children, and a heartbroken Pauline never remarried but lived alone in the home they built together until 2018.
As Marie grew up, she and her aunt became “Extremely close, like a mother and daughter,” Marie says. “She was vibrant, proud of where she came from and where she ended up and she was very independent. Even in 2017, she was raking her own leaves.”
However, by January 2018 and at the age of 96, macular degeneration left Pauline partially blind. According to Marie, she was also prone to bouts of anxiety.
The Life-Altering Phone Call
Pauline prior to guardianship/Family photo
Since Pauline’s vision left her unable to dial her phone accurately, Marie recalls that “One early morning, my aunt crossed the street to ask a neighbor [to] call her friend. Another neighbor drove by and saw her and called the police. The neighbor told the police that she found Pauline wandering the streets. That just wasn’t true.”
Pauline was transported by the police to St. Joseph’s Mercy hospital and diagnosed with a Urinary Tract Infection. At the time, Marie was still living in Kentucky.
On March 2, 2018, Martin and the Senior Care Network filed an emergency petition for guardianship in the Oakland County Probate Court against Pauline. It made no mention of any family and specifically requested Carney as Pauline’s guardian. She was appointed as a temporary guardian by presiding Judge Hallmark at a March 7 hearing.
Neither Marie nor Pauline were present.
However, Pauline certainly understood that something had happened to her involving the court. On the day Carney was assigned, Pauline called her niece in a tearful panic begging her to come to Michigan immediately. Marie then reached out to Carney’s office and spoke with an assistant.
Oakland Co. Public Administator Jennifer Carney.
“I told her that I had stayed with my aunt for 20 months when she had gallbladder surgery, that I was perfectly happy to take care of her again and that my aunt wanted me to,” Marie says. “But I was told that [Carney] needed to do some more investigation. All Carney had to do was run a background check on me and tell the court that I was willing to look after my aunt, but she didn’t consider any of that. Carney had made up her mind that she was going to be my aunt’s guardian and there was nothing I could do about it.”
Medicaid and Medilodge
In Michigan, an unmarried person does not qualify for long-term Medicaid assistance if they have over $2,000 in countable assets (cash, stocks, bonds, investments, credit union, savings, and checking accounts).
Inventories filed by Carney in May and June 2018 listed Pauline’s assets as a $307,580 home, a 2003 Jaguar, which the public administrator valued at $3,900, a $73,313.30 checking account balance and $11,124.96 in shares. According to Carney’s own accounting, only one day after she had been appointed as temporary guardian, she charged Pauline’s estate $84 to “Prepare and submit [an] initial Medicaid application.”
Carney’s office subsequently received notification from the Michigan Department of Health and Human Services (MDHHS) stating that Pauline had been approved for Medicaid benefits that were also retroactive.
As soon as Marie arrived at her aunt’s hospital bedroom, she called Carney’s office again. This time, she was able to get the public administrator on the phone.
“I told her that I wanted to take my aunt home,” Marie recalls. “She told me, ‘No, you can’t do that. We’re going to put her in Medilodge until we get it straightened out. I didn’t know anything about the place.”
Calling itself a “leading provider of long-term skilled nursing care and short-term rehabilitation solutions,” Medilodge operates at least 50 facilities across Michigan, and not all with flyingcolors.
In 2017, the Michigan Department of Licensing and Regulatory Affairs (LARA) determined seven deficiencies at the Medilodge facility in Southfield that included inadequate records of food served at the facility, medical equipment stored in patient shower rooms and an untrained staff member. A FOIA request to the MDHHS revealed that, between 2016 and 2018, Medilodge of Southfield received almost $30 million in patient Medicaid disbursements.
It was in that facility’s lockdown ward that Carney told Marie she was placing her aunt. Marie had to break the news to Pauline in her St. Joseph’s Mercy Hospital room the night before she was to be discharged to Medilodge.
‘She started crying, shaking, she was having an anxiety attack,” Marie recalls. “She’d never lived anywhere else but her home. She didn’t want people undressing her and taking her belongings.”
When Marie saw the facility herself, she says, “I just died inside.”
“The place was a dump,” she adds. “It smelt horrible. My aunt was sharing a small room with someone else. She didn’t want me to leave her there, so I laid down next to her.”
Injuries to Pauline’s back after fall at Medilodge.
At 2 am, the facility director told Marie to leave. Even though she always stayed at Pauline’s home whenever she visited, Marie said that Carney was emphatic in forbidding her to do so and had changed the locks to the house.
Tossed out of Medilodge and with nowhere to go, Marie spent a sleepless night parked in a Walmart lot worried sick about her aunt. The following day, she received a call from Medilodge informing her that there had been an “incident” involving Pauline. Marie rushed to see her.
“My aunt had contusions on her head, bruises on her chest and arms. It looked really bad,” Marie says. “She told me that her roommate had come up behind her, hit her and shoved her down. Her head hit the metal heater in the room. The cut on her head never healed.”
“Carney told me it was not a big deal,” Marie remembers. “I said, ‘It’s a big deal to me!’”
After more incidents at Medilodge, Marie decided enough was enough and began to call attorneys across Oakland County. No one would take her case.
“They told me that if a judge had assigned someone as a guardian in Oakland County, there was nothing I could do,” she states.
Marie began to do her own research. Armed with a little more knowledge, she filed petitions to replace Carney with herself as Pauline’s guardian and conservator. Pauline told her GAL that she wanted her niece to serve. Under Michigan statute, Marie therefore had priority over Carney and, in his report, the GAL recommended that Marie’s petitions should be granted.
Patient at Medilodge does not look happy to be there, but Medilodge put this photo on their website.
But, on April 25, shortly before they were to go up in front of Hallmark, Marie says that the GAL approached her with some disturbing news.
“He told me that Carney was willing to accept me as a co-guardian but that she was going to be the conservator,” Marie recalls. “Carney also told him that, if I fought her on it, she would make sure my aunt stayed a nursing home for another six weeks.”
Terrified that Carney would make good on her threats, Marie agreed to her terms. As co- guardian, Marie was finally able to gain access to Pauline’s home. While she was getting it ready for her aunt, there was a knock on the door.
“It was a man with a tow-truck,” Marie says. “He said he was there to take my aunt’s car.” A May 2 entry in Carney’s account authorized the removal of Pauline’s Jaguar.
As soon as she returned to Michigan, Marie took Pauline out of Medilodge and brought her home. For the approximately 42 days Pauline was a Medilodge resident, Carney charged her estate a total of $12,708.00 in patient pay expenses.
Petition, Argue, Repeat
For reasons then unknown to Marie, Carney would not let go of the conservatorship.
“She said, ‘I will never give up conservatorship to you,’” Marie recalls. ‘She didn’t say why.” At a hearing on July 11, Hallmark dismissed Marie’s petition to have Carney replaced.
“The judge didn’t listen to me,” Marie recalls. “She wasn’t mean to me, but she went with Carney’s recommendations every time.”
“I talked to some people at the court clerk’s office,” she adds. “They told me it wouldn’t do me any good to get an attorney.”
When a home health nurse visited Pauline, she was shocked when she saw the list of medications Medilodge had been giving her.
“They had her on psychotic drugs, why?’ Marie wonders. “All she had was a UTI. The nurse even agreed with me that there was no way my aunt was incompetent.”
Marie filed again and, when she went back to court for the fourth time, Carney doubled down.
“She said that she wasn’t comfortable with me being guardian or conservator,” Marie asserts. “Since I lived with my aunt and didn’t pay rent, she called it a ‘conflict of interest’. Then, she told me I would need to move out and get my own place before she would consider allowing my petitions to go ahead.”
Before the hearing, Marie asked Carney about her mother’s Jaguar.
“She first looked at me like she didn’t know what I was talking about,” Marie says. “Then she told me that she had sold it.”
“I knew that, the longer me and my aunt remained in Oakland County, the greater the chances that she was going to end up broke, she adds. “If that happened, Carney would sell her house.”
So, Marie came up with a plan to move Pauline back to Kentucky. She petitioned again to have Carney removed and Pauline returned to her care and, this time, included a letter to Hallmark summarizing the case, Pauline’s medical records and statements of support from neighbors and nurses.
Her petition was heard on the Motion Day of August 8, 2018, and was observed as part of this investigation. Whether it was because of the attendance of the press, Marie’s relentlessness or a combination of both, the judge suddenly relented and returned complete custody of Pauline back to her niece.
“I was in shock,” Marie says.
When Hallmark clarified that she was also terminating Carney’s conservatorship, the public administrator turned on her heels and stormed out of the courtroom. In her final accounting, Carney asserted that the “Court granted petitions allowing me to resign.”
According to that account, in just five months, she had blown through almost $50,000 of Pauline’s money.
One income line item noted a “$200 gain from the sale of automobile. ” Exactly how much Carney sold the Jaguar for and to whom is unknown. Carney’s account did not include any record of the sale.
It took Marie months to undo every action Carney had taken since she was given control of Pauline’s life. She and Marie went back to Kentucky together. It was in the state she was born that Pauline passed away in August 2018.
“She’d lost so much weight at the nursing home, she just couldn’t bounce back,” Marie recalls through tears. “It was all so unnecessary. If Jennifer Carney had gone by the law, or morality or listened to anything I had to say… All I can say to anyone who is going through this is to just keep fighting in any way you can.”
Gretchen Rachel Hammond is an award-winning freelance investigative journalist based out of Chicago. Her work has won or been nominated for four successive Chicago Press Club awards, been recognized by the National Association of Lesbian and Gay Journalists (NLGJA), and covered topics such as criminal justice, abuse at ICE detention facilities, and alleged discrimination on the part of the Illinois Department of Children and Family Services leading to the unnecessary separation of children from their parents.
Other VOD stories on state terrorism against elders, families and children include many on world-renowned hero the late Maryanne Godboldo, who fought off a SWAT-team attack on her Detroit home in 2011 during which CPS kidnapped and forcibly medicated her 13-year-old daughter.
Godboldo died of a massive brain aneurysm the night before Wayne Co. Prosecutor Kym Worthy scheduled a THIRD criminal trial against her in 2016. Two Judges twice threw out the same charges. Ms. Godboldo and her family carried out a years-long battle in juvenile and criminal courts, winning the release of Godboldo’s daughter to her family. They continue Maryanne’s battle on behalf of other state victims to this day.
RIGHTS UNDER MICHIGAN LAW RE: GUARDIANSHIP APPOINTMENTS
Disclaimer: Some of the exact dates are in question at this time, so these are approximate. This article was not totally ready for publication, but has become necessary at this time, and is life and death – in getting the word out there – For Emily’s Sake and very life!And so it is necessary. As this travesty has now become public, and with her mother’s permission, I am proceeding to do so.
On September 17, 2019, Emily Delph, age 25 years (adopted from Haiti as an infant), weighing 75 pounds as the small person she is, and severely, multiply-disabled, was taken from her mother, Holly Delph, by a Michigan state-appointed temporary guardian and left abandoned at St. Mary’s Hospital emergency room.
When the temporary guardian, Karen Vansweden, and the officer arrived at Holly and Emily’s home, this court-appointed, temporary guardian told Holly “not to try to see Emily”. There was no neglect. There was no abuse. There were no charges and there was no paperwork handed over to Holly.
A court date has been set to go back to Probate Court on October 24, 2019…. if Emily makes it until then or there isn’t irreversible damage caused by waiting that long. It’s possible that Emily might never fully recover from this assault on her person by this rogue court and paid guardian. What were they thinking?!
Holly has never neglected or abused her daughter. In fact, every life decision that’s she’s made since Emily became her daughter, has been on Emily’s behalf and in her best interest. Holly loves Emily.
Upon admittance to St. Mary’s Hospital in Grand Rapids, Emily’s health was reported as excellent. The hospital staff called her mom who was listed as the emergency contact and asked what to do with her!
Where was the temporary guardian?
Anyone with any knowledge of Emily would know that she couldn’t be just dropped off at an emergency room and abandoned. That’s neglect of a very vulnerable person and it greatly endangered Emily’s health and life. Sadly, her mother was powerless to stop it or step in at that time because of the temporary guardianship. Kent County Probate Court in Michigan and the judge that appointed this temporary guardian, should be held accountable for the probable tragedy that’s playing out right now.
Emily is not only severely, multiply-disabled, she has complex needs and is medically-fragile. Her primary diagnosis is cerebral palsy. She is nonverbal and total care for all of her basic and personal needs.
“I was told by Karen Vansweden not to go. I was called by St Mary’s Hospital. The Physician’s Assistant called me and said she was in great shape. They wanted to know how to feed her. The guardian just dumped her. I have no idea if I’m allowed. Emi has never been in a hospital ever for an illness. Only orthopedic stuff. I was always there. My somewhat slow attorney my son is talking to is trying to get real answers. Again no neglect or abuse. It’s a Michigan guardianship thing So flu season is here. Emily is healthy in a hospital costing the tax payers lots of money. If she gets sick, its state-sanctioned euthanasia. Again the guardian dumped her.”
Of course, now this temporary guardian will get a bigger paycheck this month because Emily was dumped at the emergency room and admitted to this hospital unnecessarily. I guess that this guardian gets paid to dump off disabled people whenever and wherever and with no accountability or oversight.
On 09/18/2019, Holly was advised through her attorney, that Emily would be discharged to a nursing home that day or the next until the temporary guardian could find “another facility”. It was unclear whether the guardian or the hospital had made that decision. It was then that Holly was advised that she could see Emily “at the new facility” (wherever that was going to be).
By 09/21/2019, Emily still remained at the hospital and at that time, Holly was able to visit in the evenings. There was a struggle with her food as Emily has a very sensitive stomach and the guardian wouldn’t approve what she had been eating when she was at home with her mother who cared for her. There is a particular kind of formula that provides nutrition for Emily. Her mother was not allowed to intercede and care for her as she had at home.
By 09/22/2019, Emily’s condition started to degrade. She became impacted, getting sores, her calories were cut and she received no therapy, as she was previously receiving before she was taken. Her brand new specialty leg brace ($3500) and shoes came up missing, and although her mother brought in her chair (for positioning and mobility), she was not allowed to sit in it. It gets worse from there….
On 09/26/2019, Emily was taken to Metron of Lamont (nursing home) basically to languish and die from starvation, pneumonia, bedsores, being impacted, infections. And then…
On 09/29/2019, Emily was re-admitted to St. Mary’s Hospital.
“I went to visit because I was told I could work with her. Emily is in bad shape. My intentions were to get her in her chair I brought. Give her a real shower. The charge nurse didn’t understand the food I brought was the same food brand they were already giving that was from me earlier in the week. She would not disconnect the IV for a short time, so I could put her in a chair. They were dumb. All of Emily’s night lights were gone. Again her $3500 orthotic was not there. The state-paid guardian refuses a care conference. Emily cried when I left but I couldn’t stay because my distress of the stupidity of it all was overwhelming. They are euthanizing Emily. “
And finally but not least of all, here is a personal appeal from Emily’s Mother, Holly Delph, on her daughter’s behalf. Please share this post/video, so that Emily can come home and be with the family that loves her.