For those of you who are trying to decide whether you can sue in Federal Court for the abuses your loved one suffered, read on:
Oliver Bivins was allegedly living in a dirty and uncared for condo in Palm Beach, Florida, when his son Julian wanted to relocate him back to Amarillo, Texas, where the Bivins family had made their fortune in oil and gas.
“I thought it would be a no-brainer to transfer Oliver home,” said attorney J. Ronald Denman, litigator with the Bleakley Bavol Law, whom the younger Bivins had hired in 2011.
Instead, the case dragged on for six years. Denman had unwittingly signed on to an elder guardianship case in which a diagnosis of incapacitation had turned Oliver Bivins into a ward of the state of Florida along with his tens of millions of assets.
“Once Oliver was in that system, my client Julian couldn’t get his dad or assets out of it,” said Mr. Denman.
In his doting age, Bivins had reportedly fallen prey to a care manager’s emergency application for court-appointed guardianship on a weekend trip to Florida.
Court-appointed guardians Curtis Rogers and Stephen Kelly allegedly filed a motion to prevent Mr. Bivin’s son from living with his grandfather and when a judge approved it, he was ordered to move out and leave Oliver to fend for himself.
“The lawyers hired by the court-appointed guardian began attacking Julian, making him out to be a bad guy when the truth is that Julian loved his dad and wanted to take care of him,” Mr. Denman said.
About 21.6% of 1.4 million Palm Beach County residents are aged 65 years or older, according to the U.S. Census Bureau, and according to the Clerk & Comptroller of Palm Beach County’s chief communications officer, Nannette Rodriguez, the number of guardianship cases has fluctuated from 2,700 to 3,000 since 2014 but Ms. Rodriguez stopped short of commenting on any specific case and declined to confirm or deny whether complaints had been filed with the Clerk & Comptroller’s office about any of the defendants.
When an individual, such as Oliver Bivins, is deemed a ward of any state of the U.S., he is stripped of his constitutional rights, civil rights and ability or right to enter an attorney/client relationship. As a result, Mr. Bivins was forced to rely upon a court-appointed guardian to do so on his behalf.
“In Oliver’s case, he was still quite aware of what was occurring but was helpless to do anything to change the direction of the guardians or the attorneys they hired,” Mr. Denman said.
It was not until Denman filed a complaint in the U.S. District Court Southern District of Florida West Palm Beach Division against the guardians, Mr. Kelly and Mr. Rogers, and their attorneys Brian O’Connell and Ashley Crispin that the devoted son found relief.
The September 2015 Bivins v Rogers lawsuit alleged that Mr. O’Connell and Ms. Crispin in their role as lawyers for Mr. Rogers, while he was acting as guardian for Oliver Sr., owed similar duties to Oliver Sr. and were fully aware that the work they were doing for Mr. Rogers was for the benefit of Oliver Sr. but that Mr. Rogers and his attorney s were negligent and reckless in the exercise of their fiduciary duties to Oliver Sr., resulting in damages.
Attorney Brandon J. Hechtman, who was part of the defendant’s legal team, stated in an email that he could not provide PacerMonitor News with specific commentary.
According to court records, defendant’s counsel argued that they were representing the guardian directly as opposed to the ward and therefore should not be held responsible for the condition of Oliver Bivins or his estate because they had no direct attorney-client relationship with the ward.
“In reality, the attorneys are supposed to act in the best interest of the ward, who in this case was Oliver Bivins, because they get paid by the ward’s money,” said Mr. Denman.
For years, watchdog groups like Americans Against Abusive Probate Guardianship (AAAPG) have advocated for federal and state authorities to outlaw elder guardianship not only in Palm Beach County but in all 50 states.
Under guardianship, seniors are often starved, overmedicated, abused, robbed and isolated, and family members are banned from visiting, according to Dr. Sugar, who founded AAAPG in Ft. Lauderdale, Florida.
“Judges, lawyers and guardians are not medical professionals and should get out of the business of caring for the elderly,” said Dr. Sugar whose AAAPG acts as a clearinghouse of cases nationwide. “Victims like Julian and Oliver Bivins are among the families who have the financial means to pay for justice. Others are not so fortunate. I get new phone calls every day from family members who are concerned for the welfare of their aging family members who have been involuntarily or unknowingly placed under guardianship.”
Attorneys for Ms. Crispin and Mr. O’Connell have not responded to Pacer Monitor’s requests for comment.
To win the Bivins case, Denman based his argument on Saadeh v. Connors, in which a 1996 opinion of former Florida Attorney General Robert Butterworth stated services performed by an attorney who is compensated from the ward’s estate are performed on behalf of the ward even though the services are technically provided to the guardian. After emigrating from Jordan with his wife, Karim Saadeh raised a family of three children and became a very successful businessman. After his wife’s death in 2007, Mr. Saadeh met a younger woman and allegedly began loaning her money, which his adult children objected to by contacting an attorney named Colette Meyer.
An incapacitation petition was filed and after a hearing, the court-appointed a guardian.Butterworth further wrote, “Under the state’s guardianship statutes, it is clear that the ward is the intended beneficiary of the proceedings. Section 744.108, Florida Statutes, authorizes the payment of attorney’s fees to an attorney who has rendered services to the ward or to the guardian on the ward’s behalf.”
According to the Bivins’s federal complaint, the Palm Beach County court-appointed guardians had not only allowed several of Bivins’s properties to deteriorate but also reversed the transfers of money the older Bivins initiated for Mr. Bivins, his beneficiary son.
A federal jury sympathized with Mr. Bivins plight, ruling that Ms. Crispin and Mr. O’Connell, the attorneys appointed to oversee the estate of Oliver Bivins, were deemed liable for professional negligence and for breaching their fiduciary duty to the elderly Bivins who died in 2015 at 98 years old.
In July 2017, Julian Bivins walked away with a jury verdict and award of $16.4 million