Changing of the Guard
Letty Milstein didn't believe she needed a guardian to look out for her best interests. All the feisty, opinionated 82-year-old widow really wanted in the spring of 1996 was to spend her remaining years in the home she'd occupied with her husband, Jules, for more than three decades, in the company of the son and dog she doted on.
But at a rushed hearing that April in Denver Probate Judge C. Jean Stewart's courtroom, Letty's daughter, arts patron Judi Wolf, insisted that a guardian and a conservator take over Letty's life and finances. Stewart agreed, despite the fact that Letty, through her son, her lawyer and her friends, had already arranged for a far less intrusive and less expensive program to help her with day-to-day tasks while she recovered from a broken hip.
Two months later Letty's money was going fast--her estate gnawed away by a growing pack of lawyers, expensive 24-hour home-health-care providers and a controversial court-appointed guardian who now wanted out after getting heat over his bills and tactics. Letty's lawyer asked if Stewart would allow neighborhood friends--a retired physician and his nurse wife, who'd agreed to help without charging--to act as Letty's guardians. But Judi Wolf protested, and instead the judge appointed another professional guardian ("Who's Afraid of the Big, Bad Wolf?," May 22). And so the henhouse doors were left wide open for the foxes.
Two weeks ago, though, Letty finally got what her lawyer had asked for seventeen months earlier: friends who've taken over the role of guardian, without compensation beyond knowing they're doing the right thing; her son's renewed company and assistance; and the right to remain in her own home, at least for the time being.
All it took was:
--nearly every penny of what had been a $650,000 estate (not including Letty's home);
--a battle to keep the house and stay out of a nursing home when the money ran out;
--a six-month court-mandated exile of the only person Letty totally trusted and depended on: Her son, John Milstein;
--Letty being stripped of basic constitutional and statutory rights guaranteed to allegedly incapacitated or incompetent people but apparently not to the elderly;
--and a judge other than C. Jean Stewart, whose conduct in this case will be the subject of a hearing before the Colorado Court of AppeCR>als in January.
Letty might even have lost her toy poodle, Surprise, if the last in a line of court-appointed guardians had gotten her way back in September and stuck the old lady in a nursing home. But Judi and John managed to bury their hatchet in time to come to their mother's belated rescue and let her stay in her home in southeast Denver.
Letty Milstein is now back where she was almost two years ago. Only she's a lot poorer. And she's been put through an emotional wringer that couldn't have helped her health, although her court-appointed "protectors" claim to have "stabilized" her physically and emotionally.
In the meantime, the cozy little clique of lawyers and social workers who swarm like sharks around Denver Probate Court have become several hundred thousand dollars richer.
Letty's is an extreme case, made more difficult by the dynamics of a warring family that allowed the guardianship system to step in and take over. Unlike many of the elderly, Letty had a lot of money, which the judge allowed to disappear into the maw of the system.
In many other ways, though, Letty's case is business as usual for a system that critics, both nationally and here in the metro area, describe as "sick," "abusive," "easily exploited" and "negligent."
But while the circumstances surrounding Letty's story sound all too familiar to critics of Colorado's guardianship system, there's one crucial difference: The legal battles are just beginning, and their outcome could dictate a real changing of the guardian system. Besides the Court of Appeals hearing next month--the result of a motion filed by Letty Milstein's new attorneys this past summer--there's the scent of lawsuits in the chill December air, as Letty's supporters hope to recoup some of her money. And they think they have a good argument: After all, there are more allegations of conflicts of interest regarding Letty's case than there are fleas on a stray dog.
Letty's situation has even attracted the attention of the economic-crimesCR> unit of the Denver District Attorney's office. Although officials there won't discuss ongoing investigations, a spokeswoman notes that DA Bill Ritter "sent a clear message that we're willing to prosecute" other cases involving the elderly with the recent felony-theft conviction of one of the area's most prominent probate lawyers, Michael Dice. At one point, Dice was one of Letty's guardians.
While it may seem criminal that the system can treat the elderly this way, and while such treatment may often skirt the ethical boundaries, it's not necessarily illegal.
Especially when it's done with the blessing of the court.
Ripping off old people is a growth industry that has been expanding right along with this country's senior citizen population, the most quickly expanding demographic in the U.S. Only the method has changed.
In the late 1960s and early 1970s, a series of scandals rocked the nursing-home industry.
"Nursing homes were established to fill an important need for care for the most frail elderly, and then, with the advent of Medicaid and Medicare as payment systems, these facilities became an enormous growth industry, with little close oversight--until the stories broke of patient abuse, neglect and financial exploitation, as well as outright fraud by owners," notes the Center for Social Gerontology, a nonprofit research group in Ann Arbor, Michigan.
The widespread use of guardians was, in part, supposed to rectify nursing-home ills. But what nursing homes were thirty years ago, the guardianship system has become today.
Abuses in the system first surfaced a decade ago. In 1987 the Associated Press conducted a nationwide survey examining guardianship laws and found "a dangerously 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," the AP reported.
The response was a flurry of legislation at state levels and angst-filled hearingCR>s at the federal level.
"The typical ward has fewer rights than the typical felon--he can no longer receive money or pay his bills," one witness testified at a U.S. House Subcommittee on Aging hearing in 1987. "By appointing a guardian, the court entrusts to someone else the power to choose where he will live, what medical treatment he will get and, in rare cases, when he will die. In short, it is the most punitive civil penalty that can be levied against an American citizen."
In 1988, and several times in the years that followed, Colorado's legislature revised some statutes to require that state courts follow certain procedures before and after appointing a guardian for an "incapacitated" person--whether elderly, mentally ill or developmentally disabled.
These revisions were supposed to make it tougher to get guardianships, especially if the allegedly incapacitated person objected. There was also supposed to be more due-process protection, guaranteeing a person the right to counsel at a hearing to determine his competency and requiring a higher standard of "clear and convincing evidence" before a guardianship would be imposed. And, if appointing a guardian and/or conservator was ultimately deemed necessary, judges were supposed to approve a plan that presented the least restrictive intrusion on the ward's life and finances.
Unfortunately, say critics, the legislature didn't go far enough to ensure the system's fairness. Some of them cynically point to the number of lawyers in the statehouse, who may be reluctant to regulate a meal ticket for their brethren. In 1987, Alice Kitt, who heads Guardianship Alliance of Colorado, a watchdog organization, approached the Colorado Legislature, hoping to get a law passed that would require guardians to file reports with the court. She couldn't get her proposal past the bar committee.
Critics also contend that too much has been left up to the interpretation, discretion and goodwill of judges who, overwhelmed by their caseloads, often rely on thCR>e suggestions of the same lawyers and social workers who reap the benefits of the judges' decisions.
In the early 1990s, Colorado was one of ten states surveyed by the Center for Social Gerontology, which was studying guardianship systems.
The survey found that most wards of the guardianship system were white females, about half of whom lived in their own homes and half in nursing homes. Some guardianship hearings took up only a few minutes of the court's time, especially if the subjects of the hearings weren't represented by an attorney.
And most respondents were not represented by legal counsel, even in states like Colorado, where such representation is supposedly encouraged. Few courts ordered independent medical evaluations, and live medical testimony at hearings was rare.
Only 28 percent of the potential wards attended their own hearings; 77 percent of those chose to speak on their own behalf. However, the presence of the subject usually only delayed the appointment of a guardian.
Guardianship petitions were granted 94 percent of the time.
Often, a ward wasn't even aware that she'd been given a guardian until after the fact.
The center's report concluded that the due process rights of people assigned guardians were not being protected. And most states, including Colorado, had no regulations, such as licensing and certification procedures, to control guardians.
Colorado still doesn't.
The Center for Social Gerentology is now in the midst of another survey, this one to identify what kinds of guardian services are available, and which states have superior systems. According to Penny Hommel, the center's director, the results will be used to devise standards for states' guardianship programs, as well as to make recommendations for the regulation and licensing of guardians.
In announcing the new survey, Hommel referred to the old nursing-home scandals. "Today, we appear to be standing on the threshold of a parallel situation with professional guardianshCR>ip programs," she said. "These programs first appeared in the late 1970s and early 1980s and now operate throughout the country...Established to serve as guardians of the person and/or financial resources of individuals who have been judged by the courts to lack the mental capacity to manage their own personal and/or financial affairs, these programs operate with virtually no actual oversight or regulation.
"Further, there have been no detailed studies of their operations, their best practices or their abuses. But, increasingly, reports of financial exploitation, fraud, neglect and abuses are coming to light. And these reports are not isolated; they are appearing all over the nation."
What's wrong with Colorado's guardianship system? Plenty, according to this state's advocates for the elderly.
Here's how the state's system is supposed to be structured:
The petitioner is the person, or sometimes the entity, that sets the system in motion by asking the court to have a guardian, and usually a conservator, appointed when someone is deemed too incapacitated or incompetent to manage his own affairs. The vast majority of petitioners are family members of the proposed ward.
The court "visitor" is a supposedly independent third party who, as the name implies, is sent by the court to visit the person for whom a guardianship has been requested. The visitor advises the person of what is happening and of his rights, including the right to be represented by an attorney, the right to attend guardianship hearings and the right to present evidence and cross-examine witnesses at those hearings. The visitor also reports back to the judge on whether an attorney should be appointed to represent the person.
Once appointed, a guardian has authority over his ward, including deciding whom to hire for home health care, what medical treatment is appropriate, and what restrictions--including those put on visitors and phone calls--need to be in place. The guardian devises a care pCR>lan that details what programs will be implemented and at what cost. This plan is submitted to the conservator and then to the court for approval.
The conservator has authority over the ward's property and finances. The conservator reviews bills, including those from the guardian and lawyers, and either approves them and writes checks or contests them. In counties that are large enough to have public administrators, those officials are sometimes appointed as conservators when there is no one else to look after a protected person's finances, or when there is disagreement between family members as to who should act as conservator.
And then there is the judge who considers the guardianship request. Only one county, Denver, has a probate court devoted entirely to such matters. (Last year Denver Probate Court, with one judge and a part-time magistrate, handled 2,200 cases ranging from probated wills to guardianships to Medicaid applications; the court dealt with another thousand cases focusing on mental-health concerns.) In other counties, guardianship matters are handled by district court judges whose dockets are already full of traffic, divorce and criminal misdemeanor cases.
In Colorado, the official standard for a judge appointing a guardian is "clear and convincing evidence" that such an appointment is necessary over any objections of the subject. This means that a guardian can't be appointed just because a family member desires it.
But this standard is regularly ignored, according to Kitt, whose group bills itself as an educational and referral service. For example, she says, while Colorado law requires medical evidence of a person's incapacity, far too often that evidence is only a couple of lines in a letter from a physician that are hardly equal to a thorough evaluation. Nor do the physicians show up at hearings to be cross-examined. "It's 'She's 85 and forgets things,' and for that she loses the right to make decisions about her own life," Kitt complains.
Part of the problem lieCR>s in vague legal definitions, particularly regarding the concept of incapacity. "Incapacity encompasses a wide range of possibilities," Kitt points out, "from someone who forgets her keys to someone who can't remember who she is."
After she broke her hip over the holidays two years ago, Letty Milstein's recovery was slow.
With the help of her lawyer, son and neighbors, Letty arranged for in-home health care. Until she was injured, she'd done fine on her own: writing checks to pay her bills without ever overdrawing her account; hiring a lawyer, Bob Horen, to look after her legal interests when she suspected her daughter, Judi, and Judi's millionaire husband, Marvin Wolf, of trying to meddle with her financial affairs; even taking her 1988 Cadillac Seville out for the occasional spin.
But now Judi decided her mother was incapacitated. In April 1996 she petitioned the court to appoint a temporary guardian for Letty, with the idea that a permanent guardian would be appointed somewhere down the road. Horen, Letty's attorney, had less than a day to prepare for the "emergency" hearing in Judge Stewart's courtroom.
At that hearing, the medical evidence was an unsigned letter from a doctor who admittedly had not seen Letty in several months, because she'd been fired by Letty and replaced with another doctor. (That doctor's opinion was not sought by the court.) The letter made a vague reference to Letty suffering from "dementia" resulting in "short-term memory loss."
Judi's attorney, Susan Haines, asked that Gordon Wolfe, the director of Human Network Systems, be appointed guardian.
Judge Stewart approved Judi's petition and then granted Haines's request. She also appointed Norwest Bank as Letty Milstein's conservator.
According to Kitt, most abuses of the guardianship system occur when a dysfunctional family is involved, one in which the relatives can't agree on the care of a protected person "and there's a substantial estate...It's a pot of gold, and all these different pCR>eople treat it like it's bottomless, until the money's gone. Then they go away."
Although she declines to discuss specific personalities involved in this case for fear of lawsuits, Kitt says she is troubled by several aspects of the Letty Milstein case. One is the appointment of a guardian despite the lack of medical evidence. Another is the speed with which Stewart agreed to have a hearing and then made her decision.
When Stewart replaced former Denver probate judge Field Benton in 1995, she was applauded for curtailing so-called emergency hearings and quickie guardianships. "She wouldn't grant them unless they really were an emergency--someone might be injured, or there was active theft," says Kitt, who thought of Stewart as "pretty good. She seemed conscientious and careful...until the Milstein case."
A number of the high-powered lawyers and service providers in this case have ties with each other. Susan Haines had represented Gordon Wolfe in past legal disputes. For that matter, so had Stewart when she was a probate attorney before being appointed to the bench.
Those connections trouble Kitt, who believes someone must have "had the judge's ear" outside the courtroom. "She may be a woman," she says of Stewart, "but it's a good-old-boy system in Denver Probate Court."
And Letty's first guardian was very much part of that system. Although judges aren't required to adhere to the recommendation, Colorado statutes suggest a preferred order when selecting a guardian, starting with spouses or parents, adult children, siblings and family friends.
At the very bottom of the list are professional guardians. But Judge Stewart went straight to Gordon Wolfe, a professional, rather than choosing Letty's son. ("John may be a little strange," Kitt says, "but he's obviously very devoted to his mother, and he wasn't doing anything illegal.") Even after Wolfe resigned, the judge appointed another professional guardian rather than two of Letty's friends who'd offered to do the job without compCR>ensation.
When advocates for the elderly discuss problems with the system, certain names appear time and again. One of them is Gordon Wolfe, one of the busiest and most successful professional guardians--if success can be measured in dollars and caseloads--in the metro area. Among advocates, Wolfe has a reputation for both excessive fees and overly restrictive care.
Although judges are supposed to impose the "least restrictive" guardianship program, at least at the start, Wolfe had a stringent plan for Letty, which her attorney complained was more restrictive that those imposed on penitentiary inmates. At one point he instructed aides, whom Letty certainly resented being in her house, to treat the old lady "like a disciplined child."
Wolfe collected nearly $36,000 in guardianship fees for a couple of months' work in Letty's case. He also created a care plan that would have cost Letty's estate $17,000 a month.
Wolfe told Westword that he did what he had to do in order to comply with the court's order that Letty's guardian provide 24-hour care and keep her safe. But after Norwest, the conservator, noted that it had "concerns about the propriety of certain arrangements and reasonableness of certain expenses," Wolfe resigned the guardianship.
He resigned, he told Westword, because he could not condone the amount of money being charged to Letty's estate by the lawyers involved in the case.
But there's some question as to whether Wolfe should have been appointed in the first place--and why Judge Stewart kept him on the case after complaints began cropping up.
After all, Judge Stewart had previously taken action when a question of propriety was raised. In fact, she once stepped down from a case involving Wolfe after a guardian ad litem complained that the judge had a conflict. Stewart "recused herself from any further proceedings because, as an attorney in private practice, she had provided legal representation to the guardian in that case, one Gordon Wolfe, and his company, HumCR>an Network Systems--the same individual and company Judge Stewart would later appoint guardian in this case," notes Walter Sargent, a Colorado Springs attorney, in a document he filed with the Colorado Court of Appeals on behalf of his client John Milstein.
But Stewart not only appointed Wolfe as guardian for Letty Milstein, Sargent notes, she stayed on the case herself for over a year.
"In the absence of any indication that Judge Stewart has received additional information during the pendency of this appeal that provides her with a basis for disqualification that did not exist at an earlier time, it would seem that Judge Stewart's disqualification of herself reflects her recognition that disqualification was appropriate when Letty Milstein so moved," Sargent writes.
"What is even less clear, however, is whether the basis upon which Judge Stewart has disqualified herself existed at an even earlier stage in the proceedings."
In June after Letty had been under the court's control for year, lawyers Cris Campbell and Drew Petrie, who contend that Letty hired them in May to represent her interests at her final competency hearing, demanded that the judge step down.
Before that hearing, the judge had taken the controversial step of visiting Letty at her home rather than sending an independent court visitor. Campbell and Petrie argue that Stewart proved herself biased in favor of the court-appointed guardians when she determined that Letty "lacked the legal capacity" to retain counsel--prohibiting Campbell and Petrie from representing her--and refused to allow Letty to attend her own hearing, both in apparent violation of Colorado statutes. Stewart then judged Letty to be incompetent and appointed a permanent guardian, Patricia Ayers, who had absolute control over Letty's life.
Stewart didn't step down until September 17, the day after the Court of Appeals agreed to hear Campbell's and Petrie's motion asking that Judge Stewart be removed from Letty's case and her decisions regarding thCR>eir client rescinded.
Stewart gave no explanation for her resignation.
Nor did she explain herself two days later, when she issued a memorandum saying she would no longer hear cases involving Norwest, which she had represented when she was a probate lawyer.
In losing Letty, Wolfe lost not just a ward, but also a client. In some guardianship cases, a single person is appointed to be conservator, guardian and case manager, as well as to provide the home-health-care service and even home maintenance.
Wolfe is famous for getting such multiple appointments. In Letty's case, he served as guardian and his company provided the case managers who hired and oversaw the home-health-care agency.
The overlap didn't stop with Wolfe. After he resigned, Judge Stewart appointed Florence Jones as Letty's temporary guardian. Jones hired her own company, Home Care Management, to provide Letty's aides.
"Talk about the fox guarding the henhouse," Kitt says. "But there's no law against it."
The guardianship system's lack of accountability concerns advocates for the elderly.
"There are no checks and balances," says guardian ad litem Wilt Berry. "The way it's supposed to work, if the guardian needs something, the guardian talks to the conservator and makes a case; the conservator decides if it's appropriate, and if so, the conservator pays for it. But when it's one person, who's to say if something is really needed?"
And sometimes when several people are involved, they devise a "crisis." Such a crisis, according to Joni Seivert, the director of Connections Unlimited, a housing and services referral agency, "creates more work for them. They call each other, have meetings, decide where to go from there...all at $160 an hour."
(In Letty's case, the "crisis" centered on her son, John, who often echoed his mother's displeasure at the disruption in her life. All of Letty's guardians blamed John for "agitating" his mother; dealing with John-related crises allowed them and their CR>attorneys to bill for meetings and telephone calls, much of the time at over a hundred dollars an hour.
Friends of Letty's, however, contend that it was the intrusive nature of the court-ordered "help" that made her agitated. Aides who questioned the need for the intensive, 24-hour care Letty was getting and who noted that John had a calming effect on his mother were let go. Several of them told Letty's lawyers that the guardians purposely kept aides in the house with whom Letty did not get along.)
Although those crisis meetings ring up the bills, the court rarely keeps tabs. Only conservators are required to report to the court--once annually; guardians need not report at all unless they are ordered to do so. Even then, courts don't have the time to review the bills for each case, and so rely on the appointees' judgment.
In 1992 Seivert was asked to be a volunteer guardian for a woman who was on Medicaid and in a nursing home. The strange thing about the woman's situation, she remembers, was that she had once had a substantial estate.
Seivert began backtracking through the paperwork of the woman who had been both guardian and conservator before her. It took a year, she says, but she discovered that the former guardian had bilked the woman out of $300,000. And she contends that no one in the court system would ever have caught her.
When confronted, Seivert says, the woman asked her, "So what do you want me to do--steal from somebody else to pay you back?"
Instead, Seivert told her she was going to take the case to the Denver DA. "She committed suicide before I could," she says.
Joanne Marlatt, program administrator for adult protection/elder rights at the Colorado Department of Human Services, has seen for herself how little oversight the Denver court provides. She was asked by Kitt to serve as guardian for a woman in a nursing home. The woman spoke no English.
A court visitor was appointed to interview Marlatt and her ward. "I had a brief telephone conversation wiCR>th her," Marlatt recalls. "She didn't ask me for much information, and she never did see the woman.
"I went to the court and handed the paperwork to a judge, who hardly glanced at it. He didn't ask me my motivations, or what plans I had for her, or how I was going to provide for her needs. I was never asked for a report on how I spent her money. I could have taken her out of the nursing home, put her in a basement and starved her while I collected her checks, and no one would have known."
That wasn't an isolated case, Marlatt adds. In her professional capacity, she says, she sees such situations "all the time."
Because of the way the guardianship system is set up, it's difficult to charge anyone with criminal action. Still, the economic-crimes division of the Denver DA's office is keeping an eye out for abuses of the system.
According to Phil Parrot, chief deputy district attorney in charge of that division, there's a growing trend in what's referred to as "theft by a trusted advisor," whether that advisor is an insurance salesman, family member or court-appointed guardian.
"It's rare to get a guardian case to prosecute," Parrot says. "Not because what's going on isn't wrong--it just might not be illegal. Most of what's happening has been approved by the court, and it often comes down to how you value a person's services. Charging $160 to fetch a quart of milk might seem high, but is it illegal if the court says go ahead?
"It's frustrating, and it really tears your heart out to see what happens to these people. I spend a lot more time than I probably should looking at these cases, knowing I won't be able to prosecute. But I keep hoping. It's an area of the law that needs to change, and I'm not one to advocate a lot of tinkering with the statutes."
The cases may be difficult to prosecute, but not impossible--especially when the greed gets blatant. On November 17 Michael Dice pleaded guilty to one count of felony theft for stealing money from five clients of which he was tCR>he trustee or conservator--including a 29-year-old mentally disabled woman, a 42-year-old schizophrenic man and a teenage boy.
The single count for the five thefts, which totaled close to a quarter of a million dollars, was part of an agreement worked out by Parrot in exchange for Dice's guilty plea. Bank records go back only seven years, Parrot notes, and investigators had to stop following Dice's tracks when they reached 1990.
Dice is scheduled for sentencing on January 30. Although Letty Milstein was not one of the five people cited in the complaint, sources say that John Milstein has been asked to testify at the sentencing regarding Dice's involvement in his mother's case.
"Michael Dice is our poster boy for what's wrong with the system," Parrot says. "He's unusual in that he was simply cashing checks and pocketing the money. It's rarely that blatant.
"But he was the best known of the attorneys at the probate court. Benton and Stewart relied on him because of his reputation."
In fact, when Stewart, then a probate attorney, was questioned in a 1992 case in Jefferson County about high fees she was charging an estate, she chose Dice as her expert witness to testify that her fees were not out of line.
This fall Dice was disbarred by the Colorado Supreme Court. Asked about his case in September, Dice would not comment except to say that he looked forward to telling his side of the story to Westword.
He no longer wants to do that.
Michael Dice was only a bit player in the Letty Milstein case. But there were other lawyers and professionals to feed off her estate.
After Gordon Wolfe resigned, Judge Stewart appointed Florence Jones and Dice as temporary co-guardians. Then, in January, she appointed guardian ad litem Liz Paul to look out for Letty's legal interests (even though Paul told John Milstein, "I don't represent your mother."). In June, Ayers was appointed as Letty's permanent guardian.
"Permanent" lasted exactly five months. After Stewart stCR>epped down in September, Judge Benton came out of retirement to handle the case.
With Letty's estate almost gone, the warring siblings finally agreed to a compromise. In November they asked Judge Benton to appoint Harold and Pauline Kay, two lifelong friends of Letty's, as her new co-guardians. The siblings also asked that the restraining order preventing John from seeing his mother be lifted--after he completed several counseling sessions. He's done that, and now, with his sister's blessing, will even be allowed to apply to be Letty's co-guardian.
Ayers opposed the brother-sister pact. She said she thought Letty would be better off in a nursing home and didn't believe the truce would last. Letty would end up in a "crisis" situation again, she warned.
But this time Letty's doctor, the one who was treating her in the spring of 1996 and should have testified at Stewart's first hearing, spoke up. Letty would be better off at home, he said. Judge Benton agreed.
At a hearing two weeks ago Judge Benton allowed Patricia Ayers to resign. He also officially removed Liz Paul as Letty's guardian ad litem. She wanted to resign anyway, Paul told the court, because she could "no longer sustain the professional and financial burdens" of working for Letty at $100 an hour, "presumably lower than the rates of seventeen other lawyers participating in this case." Paul's burden got heavier when Benton cut her outstanding bill to Letty's estate in half, to $7,175.
But Paul had already collected $50,000, about 9 percent of Letty's estate. (Much of that money is for work done after June, even though Ayers's appointment as permanent guardian was expected to end Paul's involvement. Paul blamed trouble between Judi Wolf and Ayers for her continued presence.)
At the hearing, Benton ordered that Ayers, who'd tried to move Letty into a nursing home in September when it looked like her money was about to run out, be paid $12,120 still owed in fees. All told, Ayers made about $23,000 for a few months' work.
Benton cut the $14,000 in fees that Ayers's lawyer, Bernard Poskus, had charged Letty's estate down to about $8,000. Poskus's work for Ayers, Benton said, "benefited Mrs. Milstein only to the extent of his efforts to summarily dismiss" the case against Judge Stewart in the Court of Appeals.
"However, given the probable outcome of a successful appeal," Benton wrote, "further efforts in defending this Court's actions...did not benefit Mrs. Milstein or her estate."
About 19 percent of Letty's estate--$92,000--went to guardian fees billed between April 1996 and October 1997. Gordon Wolfe's charges are included in this amount, as are Ayers's $14,000 and $28,386 in fees to Michael Dice. Dice's main contribution to the case was to obtain a restraining order against John Milstein that prevented him from seeing his mother for the better part of a year. John, of course, was seen as the main impediment to continuing the high-priced guardianship of his mother.
Nearly everyone in this case was represented by lawyers, almost all of whom billed the estate. Neither the Wolfs' attorney nor John Milstein's charged the estate, although John tried to pass his legal fees on to his mother's estate. He was rebuffed by Norwest, whose own lawyer, Stephen Brainerd, charged the estate more than any other lawyer, about $37,000.
Lawyers' fees from April 1996 to October 1997 ran about $135,000, about 26 percent of Letty's estate. Only one of those lawyers, Bob Horen, who billed about $36,000, was hired by Letty. The law firm of Denver Public Administrator R.L. Steenrod, who as a conservator has frequently signed off on Wolfe's fees in the past, was hired by Wolfe to represent him in this case; it collected $7,500.
There was even a lawyer appointed by Judge Stewart to make sure what the other lawyers were charging was fair. He collected more than $7,000 for his efforts.
The conservator, Norwest, charged another $13,640 in fees. Psychiatric evaluations requested by Paul cost about $11,000.
All told, CR>protecting Letty's best interests drained $510,000 out of a $650,000 estate (and that doesn't include a number of bills that have accumulated since September). That's an average of $29,161 a month, $961 a day. Of that amount, only $196,000 was actually spent on Letty's care.
It's not surprising that by September, the lawyers and social workers and psychiatrists were no longer trying to sink their teeth into Letty's estate. There wasn't much left.
"That's how they work," says Seivert. "When the money runs out, they put them on Medicaid, stick 'em in a nursing home and forget about them...You'll notice that not a lot of poor people have professional guardians and conservators or a bunch of psychiatrists--there's no money in it for them."
There is no doubt that guardianships and conservatorships are needed to protect the best interests of people "who lack sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person," as the current law states. But there's still plenty of room for improvement, say critics from Kitt to Parrot.
Among the changes they'd like to see are a reporting requirement, more funding for the courts for better oversight, standard fees for what can be charged, and a tightening of the language regarding what constitutes incapacity. Judges also need to follow the guidelines and statutes that are already in place, especially with regard to a "protected" person's due process.
"But," Kitt admits, "you can't legislate morality."
The only lawyers to work for Letty pro bono are those who have taken her cause to the Colorado Court of Appeals: Sargent and Marcus Squarrell on behalf of John Milstein, and Cris Campbell and Drew Petrie for Letty.
Secrecy has been a hallmark of this case, particularly when it comes to the judge and her appointees. Two nurses sent by the Denver Police Department to check on Letty were turned away at the door by guardian Florence Jones's aides. When one nurse complained in a deposition that CR>she believed the judge was participating in a coverup and said she was going to demand an investigation, the judge had the deposition sealed.
Stewart's visit to Letty's home was kept quiet. She said she didn't want Judi or John to interfere--nor, apparently, Letty's would-be lawyers or anyone else outside the court. The transcripts from that meeting were sealed.
Before the June hearing where she declared Letty incompetent and appointed a permanent guardian, Judge Stewart kicked Campbell, Petrie, several advocates and a Westword reporter out of the courtroom, even though Judi and John indicated that they preferred the hearing be public. After the hearing, Stewart said that Letty was disturbed by the attention her case had gotten from the media and ordered Letty's keeper to restrict calls, including those from her son and would-be lawyers. Actually, it was Letty who called the media, asking for help. She also wondered why her attorneys had not been by to see her, not realizing that Stewart had ordered her sequestered.
And at the December 5 hearing before Judge Benton, a man in the audience--an advocate for the elderly, it turned out--was kicked out because Judi thought he was the Westword reporter.
Stewart, Paul and Ayers did not return calls requesting comment for this article. Judi Wolf and John Milstein declined to be interviewed. In response to a request for an interview, Judi sent the following note to Westword, with her brother's name also attached: "Because legal matters are still being adjudicated in the courts, it would be highly inappropriate to comment on the guardianship/conservatorship system in Colorado or various rulings which have affected our family."
At a hearing January 5, Letty's attorneys will finally get to argue that Denver Probate Court denied their client her rights.
In the meantime, Letty's back to where she was in April 1996. All it took was nearly everything she had. Except her dog.
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