For the Pocono Record
Posted Mar. 5, 2016 at 8:57 PM
Mary Whitten worries each day about her uncle, former advertising executive Harvey Whitten.
The elder Whitten, a Korean War medic, suffered a stroke in 2010 and was diagnosed with vascular dementia. Because of his condition, some in Whitten’s family moved to petition the court to appoint a guardian.
That decision has haunted Mary Whitten.
“My uncle is a victim. His guardian changed his doctors and medication behind the backs of his family and approved of his being administered 5 milligrams of Haldol daily, a chemical restraint,” Whitten said.
When Whitten, a Montgomery County resident, read a column about elder guardianship abuse, she was pleased that Pennsylvania cases were finally being thrust into the national spotlight.
The article, written by former Court TV reporter and nationally syndicated columnist Diane Dimond, highlighted what the journalist called a shameful racket in America.
Families and loved ones are often shut out while the health of the elder quickly diminishes, according to Dimond.
“My uncle’s guardian emailed last September and said my uncle couldn’t eat anymore without a feeding tube,” Whitten said. “We went to visit and he was trying to eat his sheets because he had been starved for two days.”
Harvey Whitten suffers from allergies to clothes detergents, and as a result, not only was he starving, but he had blisters on his skin from the detergents, his niece said.
“My cousin asked if there was some way that my uncle could be fed, since he was trying to eat the sheets. So, (the guardian) decided to give him ‘comfort food.’ If the family didn’t say anything, he would have been starved to death,” Whitten said.
The legal ordeal in fighting the guardianship arrangement has cost Whitten more than $10,000 and her uncle $400,000 just last year, she said, while noting others have spent close to $1 million in legal fees trying to extricate loved ones from court-ordered guardianship.
Dimond’s column chronicled the plight of 94-year-old Betty Winstanley, who resides at the Masonic Village retirement home in Elizabethtown.
Despite appearing of sound mind and somewhat wealthy, Winstanley’s desire to live elsewhere is still being ignored. Her husband of 72 years has died and she wants to move to a care home closer to her two children in Maryland.
However, Pennsylvania Common Pleas Judge Jay J. Hoberg declared her “totally incompetent” 19 months ago, meaning she can’t make decisions on her own.
Guardians appointed by the court get to make all of her decisions, including where she must live, who can visit and for how long, even whether she is allowed to take short day trips away from Masonic Village.
“I had no idea the enormity of the nation’s elder guardianship problem or how many individuals or organizations are fighting to change the now bastardized set of laws that can turn an elder’s life into a nightmare,” Dimond said.
“If the aging baby boomer generation hasn’t already experienced the problem with their own parents — steel yourselves — you could be the next one to get caught up in this awful system,” she warned.
While organizations like the National Association to Stop Guardianship Abuse (NASGA) and Americans Against Abusive Probate Guardianship say the system is corrupt all around the state, the Pocono Record could not find similar abuses in Monroe or Pike counties.
“I have filed many petitions for guardianship and in the past have been appointed by the last four Monroe County Court of Common Pleas Orphan’s Court judges to represent alleged incapacitated persons,” said Stroudsburg attorney Lori J. Cerato.
“I have never experienced a case such as the one (Dimond) reported on in Lancaster.”
But the cases of Whitten and Winstanley — and many others — are real.
Winstanley, who said she attended an important initial hearing before a judge while still grieving her husband’s death and without her hearing aids, was unable to understand the proceeding, and her court-appointed attorney never told her she had the right to speak before the judge made a decision.
On July 17, 2014, Judge Hoberg heard testimony from a doctor and nurse from Masonic Village and declared Winstanley a totally incapacitated person, presumably ignoring that she had been tested by two independent neuropsychologists who declared that she was of sound mind.
She was appointed two guardians and immediately she said she felt cut off from the rest of the world. Winstanley’s next hearing before the court is scheduled for 9 a.m. on Wednesday, March 30.
“In Pennsylvania, judges have broad discretion in assessing credibility and determining whether or not someone has capacity, subject to review by the Superior Court of Pennsylvania and the Supreme Court of Pennsylvania,” Cerato said.
Hawley-based attorney Leatrice A. Anderson said while she does a lot of guardianships in Pike and Wayne counties and has been appointed as counsel for incapacitated individuals on a number of occasions, she’s always careful in the pursuit of the guardianships as both counsel for the petitioners or counsel for the individual.
“When I am appointed as counsel for the incapacitated person, I make a point to go see them wherever they live so I can speak with them one on one without the confusion and nervousness of a courtroom setting,” Anderson said.
“My heart breaks for (Winstanley), but in fairness, the judge was given a certain picture of the situation and he ruled what he felt was in her best interest. Taking responsibilities and making decisions on behalf of our elderly community places enormous burden on guardians, and it shouldn’t be sought out without thinking the process through.”
Still, there are, “plenty of cases in places like Montgomery County,” many of which are highlighted on a Facebook page dedicated to guardianship abuse there, said Elaine Renoire of NASGA.
“The motherlode of our cases are in Montgomery County,” Renoir said, adding that the laws must be changed.
Push for change
To that end, the daughter of a late actor has led the charge.
Last week, Utah senators passed a bill that protects the rights of adult children to visit ailing parents in that state.
The bill, SB 111, places limitations on the power of a guardian to prohibit association between an adult ward and a relative.
“We are thrilled about this and we’re hoping that all other states will follow,” said Catherine Falk, who pushed for introduction and passage of the bill.
Falk is the daughter of the legendary “Columbo” actor Peter Falk, who in 2008 became completely incapacitated as a result of advanced dementia.
Falk’s wife, Catherine Falk’s stepmother, however, allegedly failed to inform Falk’s children of his condition and refused to allow the actor’s children to visit their ailing father, his daughter said.
In December 2008, Catherine Falk filed a petition for conservatorship of her father in the Los Angeles Superior Court in order to find out his medical condition and obtain the right to visit.
Further, Falk’s wife did not notify his daughters of the actor’s death. Instead, they learned of it from media reports and their attorney. Falk was buried without notification being given to his daughters.
U.S. Sen. Todd Weiler, R-Utah, who led sponsorship of the bill in the Senate, said it’s important to give people a chance to visit family members before they die.
“I think most people want to make peace and express their love and sadness and maybe try to clear up any misunderstanding before someone passes away,” Weiler said.
Study done in Pa.
In 2013, a Pennsylvania task force chaired by State Supreme Court Justice Debra McCloskey Todd was formed to study the overall issues of access to justice being faced by older residents.
The 38-member Elder Law Task Force recommended several actions, two of which were immediately put into place including the creation of an Office of Elder Justice in the Courts and the formation of an Advisory Council on Elder Justice in the Courts that serves as the judiciary’s liaison to the executive and legislative branches.
“As our population ages, courts are facing unprecedented challenges, the increasing population of elders anticipated during the next 20 years is likely to result in a substantial increase in court cases regarding the protection of vulnerable elderly persons, including guardianship, elder abuse proceedings and other types of cases,” Todd said in a statement.
The sheer volume of complaints in sealed cases are staggering and highlight citizen’s attitudes about the way the legal system has taken laws designed to help the elderly and twisted them to insure continued employment for judges, lawyers, court-appointed guardians, social workers and those who own or staff elder care homes, Dimond said.
All of it conveniently paid for out of the estates of the elderly.
“Change couldn’t come fast enough for Betty Winstanley,” Dimond noted.
“Ever since her eldest son, Richard, took a family squabble to court in July 2014, she has had to live where her husband died — and without being near the family she so desperately craves,” Dimond said.
“Her estate was worth $1.9 million before her guardianship began in July 2014. Wonder what it’s down to now?”
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