Of course, we all know from Eliot Bernstein’s troubles in Florida and from the absolutely horrendous miscarriages of justice for Attorney Barbara Stone, the court system can reach the 7th level of Dante’s Inferno and just keep on digging together with the back hoe from Satan comes this truly terrifying article.
For sure Satan never sleeps.
Appeals court allows marriage to be annuled in guardianship
Senior Glenda Martinez’s quest to reverse a Palm Beach County judge’s decision annulling her marriage in a controversial guardianship case took a hit Wednesday when an appellate court ruled against her.
A blistering dissenting opinion, though, might fuel the issue right up to the Florida Supreme Court.
The annulment of the 2011 marriage between Martinez and 85-year-old J. Alan Smith, formerly of Boynton Beach, came at the urging of a court-appointed guardian. The judge in the case had initially ignored Smith’s preneed health directives naming Martinez as his health surrogate.
Both issues underscore the great power the courts have over seniors found to be incapacitated.
Martinez set legal precedent last year when the 4th District Court of Appeal in West Palm Beach ruled in her favor and ordered a judge to return Smith — sent to a nursing home by the guardian — to her care. On Wednesday, a three-judge panel ruled against her in upholding Circuit Judge David French’s annulment of their marriage, saying Smith failed to ask the court’s permission to exchange vows.
Appeals Judge Martha Warner, who authored the first opinion on the pre-need directive, wrote an 8 1/2-page dissent that sets the stage for a review by the whole 4th DCA and maybe the Florida Supreme Court.
“This frail gentlemen has been deprived of his fundamental right to marry, in proceedings which violated his fundamental rights to due process and without a consideration of his best interest,” she said.
Warner wrote the right to marry is a fundamental right guaranteed by the U.S. Constitution, stating that French could easily have ratified the marriage. She said French’s ruling violated the legislative intent of lawmakers that the rights of seniors in guardianships be protected.
Warner also noted that the lawyer appointed to represent Smith cooperated with the guardian to petition the court to annul the marriage even though Smith couldn’t speak.
The majority opinion of the panel — Judges Dorian Damoorgian and Melanie May — reiterated the guardianship statute, which says that incapacitated seniors who have lost their right to enter into contracts cannot marry unless the court approves.
Martinez’s attorney Jennifer Carroll said she has 15 days to ask the panel of three judges or all of the judges on the 4th DCA to review the case. She can also ask the Florida Supreme Court to look at it, as well.
“This gentleman was deprived of this fundamental right,” Carroll said. “He was also deprived of other fundamental constitutional rights, including his right to be represented by independent counsel. I believe this case has serious constitutional ramifications, and I believe the opinion raises issues of great public importance.”
An annulment in guardianship can have a domino effect after the incapacitated senior dies in determining the benefits for the surviving spouse. The Palm Beach Post reported how annulment proceedings initiated by a guardian can drain the estate of the senior in its series Guardianship: A Broken Trust.
The Post wrote how the judiciary appears to do little to stop the funnelling of the life savings of incapacitated seniors into the pockets of guardians and their attorneys — even when families believed they’d found evidence of malfeasance. Numerous statewide complaints about professional guardians taking financial advantage of incapacitated seniors in guardianship spurred the state Legislature to pass regulatory reform last month.
After The Post’s series, Chief Circuit Judge Jeffrey Colbath announced guardianship reforms, including training, a new system of appointing guardians and the transfer of Circuit Judge Martin Colin, whose wife works as a professional guardian.
Martinez now takes care of Smith at her home in Miami, but said the guardian left Smith’s finances in ruins and she has trouble paying his medical bills. She called the DCA’s decision upholding the annulment, “a horrible, horrible thing.”
Her case is particularly unsettling, Carroll said, because a previous judge told professional guardian John Cramer that Martinez and Smith’s marriage was valid and for him to back off. Instead, he aligned with the attorney who was supposed to represent Smith’s interest: Lynne Hennessey.
Warner was particularly perturbed at Hennessey’s role in the annulment.
“As there is not evidence on the record that Smith himself expressed any wish to annul his marriage, there is nothing to support Hennessey’s filing of this petition,” Warner wrote.
Hennessey could not be reached for comment.
Dr. Sam Sugar, who is co-founder of Americans Against Abusive Probate Guardianship in Aventura, said court-appointed attorneys for incapacitated seniors are often co-opted by the professional guardian. If they don’t cooperate, they may have their fees opposed by the guardian, he said.
“If they rock the boat to actually represent the best interests of the ward rather than the system, their income will suffer,” Sugar said. “The ward’s interests are always secondary to that.”
WHAT THE POST FOUND
The savings of incapacitated seniors flow into the household of Palm Beach County Circuit Judge Martin Colin.
courtesy of Colin’s wife — professional guardian Elizabeth “Betsy” Savitt. Fees in most of her cases were approved by another judge who is a friend of her husband’s. Colin approved the fees of her lawyers in other cases.