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She’s 90 and wants to live at home. A guardian put her house up for sale. What’s next?

DOUGLAS HANKS

Updated May 22, 2023 at 9:33 AM

Ela Avila, a 90-year-old retired uniform maker on food stamps, is in the second year of her fight against a court-appointed guardian who controls Avila’s money, housing decisions and medical care.

It’s a battle over small decisions — like when Avila says she can’t get enough cash to visit a hair stylist. And big ones — like when the guardian, Zaidis Alvarez, listed Avila’s Little Havana home for sale last year against her wishes.

“I don’t want her,” Avila said in Spanish during a recent interview with the Miami Herald in her home of 35 years. “I get sick every time she comes here.”

While Avila doesn’t want a guardian, she may end up paying for one. In March, Alvarez asked for court permission to use the divorced grandmother’s assets to pay a $21,000 legal bill from Alex Cuello, a lawyer charging $525 an hour to work for Alvarez in the guardianship case.

Probate lawyers and advocates for elders’ rights say Avila’s case is an example of the high-stakes consequences that can be lurking for an elderly person facing allegations of losing cognitive abilities even while they’re living at home, attending to everyday tasks and remaining well aware of their circumstances.

“One of the things I preach is guardianship avoidance,” said Collett Small, an elder-law attorney in the Pembroke Pines office of the Slater and Small law firm. “It can be a very scary process. Imagine someone knocks on your door and says, ‘I am here to evaluate you.’”

The case started in 2021 when Avila’s daughter, Rosa Hernandez, asked a court to name her guardian of her mother’s assets. A judge briefly approved that arrangement, then shifted to the appointment of an independent, professional guardian in 2022 after Avila’s son, Rogelio Hernandez, objected to his sister filling the role.

Alvarez is registered with the state Elder Affairs Department to serve as a court-appointed guardian for people deemed mentally incapacitated and unable to make decisions on their own. To become guardians, applicants must pass criminal history and credit checks and a state exam after completing a 40-hour course.

Alvarez and Cuello have not responded to requests for comment.

READ MORE: A look at one elderly person who fell victim to a scam

Under guardianship, Avila, a Cuban immigrant, has lost her right to vote, travel, accept medical treatment, make decisions on where she lives or sign contracts, according to an April 7, 2022 court order obtained by the Miami Herald.

The judge in the Miami-Dade Circuit Court case, Bertila Soto, appointed Alvarez on March 8, 2022, and instructed her to take charge of Avila’s money. Alvarez must submit budgets to Soto and get court approval for any big changes in Avila’s affairs.

Once fighting each other in court, both of Avila’s children now are united in asking Soto to restore their mother’s independence. Last month, they filed a joint motion asking Soto to end a guardianship they say is sapping the family’s cash.

“My mom used to have a lawyer. When the turmoil started getting bad, he wanted more money. We couldn’t pay him,” Rosa Hernandez said. “My brother and I are trying to do our best.”

A court fight for independence

While lacking a lawyer of her own, Avila is being asked to pay for the one behind the guardianship that has her an involuntary “ward” in the Miami-Dade case. On March 13, Alvarez filed a notice with the court saying she approved Cuello’s $21,054 legal bill for services he provided for the prior 12 months. The bill is to be paid “from the Ward’s assets,” according to the form, if a judge agrees to the fees.

The court records don’t show an order related to the fees, suggesting they remain unpaid. The Cuello bill shows a string of tasks the lawyer preformed for Alvarez, including attending hearings, reviewing court filings and communicating with lenders on a possible reverse mortgage.

Florida law requires three professionals, including at least one doctor, examine a person for mental capacity before a judge can declare them incapacitated and needing a guardian’s authority. Florida law dictates many guardianship documents remain off-limits to the public. Court clerks haven’t publicly released most filings in the Avila case, including the basis for her guardianship and medical reports. Avila and her family say they don’t have those reports.

Though Avila is described as an “incapacitated person” in court papers, at least two medical professionals weighed in positively on her mental state.

In December, a nurse practitioner filled out a court form saying Avila had the “full capacity to live independently.”

Last year, a nurse working in the elder-abuse unit for Miami-Dade prosecutors went to Avila’s house after she and her son called asking for help, according to a summary provided by the State Attorney’s Office. The nurse, Carmen Duran, “did a quick assessment on Ms. Avila requesting her to answer basic orientation questions. Ms. Avila responded to all questions correctly and clearly,” according to the summary of the May 17, 2022, meeting.

Alvarez and Cuello also attended the meeting. Duran said she asked about Avila’s mental examinations and “was informed that Ms. Avila had not been diagnosed with dementia or Alzheimer’s.”

In a prior conversation with Avila, Duran said it was clear Avila felt the court was ignoring her ability to live independently and that Avila wanted nothing to do with an assisted living facility or any other option forcing her to move.

“Ms. Avila also expressed frustration that she maintained a standard of self-care and grooming and yet was being denied her own money to maintain her hairdresser appointments and social schedule,” the summary said.

Rosa Hernandez said her mother initially agreed to have her become guardian as a way to stabilize a rocky financial situation amid trouble with tenants who were then living in the flat attached to Avila’s house and paying enough rent to cover the mortgage. The $1,500 rent payments stopped altogether in the summer of 2021, according to court records from an eviction proceeding, leading to a financial slide that now has Avila facing foreclosure because she’s behind on mortgage payments.

Avila signed documents saying she wants to put a reverse mortgage on the house, a financial arrangement that can let an older person remain in their home indefinitely but often leaves no equity for heirs as unpaid interest compounds and eats away at the value of the house. Rogelio Hernandez said he’s been pushing Alvarez to help secure a reverse mortgage, but the guardian won’t cooperate.

“Look at her. She’s fine. She’s well,” Rogelio said in an interview at the kitchen table. He lives in the house with his mother and a caretaker he says he pays $400 a week after Alvarez raised concerns about Avila being left alone while he works overnight shifts as a forklift operator at Miami International Airport. “I don’t want her to live in a home.”

Tidy bedroom, Cuban coffee in kitchen

Born in Cuba, Avila came to the United States in the 1960s, married, had two children and worked for a Miami uniform maker that clothed local police officers and firefighters.

In a tour of her home as Spanish-language morning news played in the background, Avila brought out a wind chime with a porcelain officer, gun and police dog she said was given to her as a retirement gift. When a charcoal portrait of a woman in pearls and a blouse caught a visitor’s attention, Avila explained a cousin drew that of her mother.

Then she walked into her bedroom, pointing out another portrait by the cousin: a framed rendering of Jesus hanging over the tidy bed that Avila said she makes each morning.

“And I wash the dishes,” she said.

She still has two sewing machines in her kitchen, where she offers to make Cuban coffee for visitors on a recent weekday. “Amargo o dulce?” she asked in Spanish as she set up the pot on the electric stove’s burner.

Guardianship laws are designed to give court protection and supervision to people who lose the mental capacity to make decisions for themselves.

Probate lawyers call it a legal last resort and often the result of a person waiting too long to make arrangements for how they want their affairs managed if they lose mental capacity during a medical crisis or due to old age.