To Grandmother's House We Go
This month Letty Milstein gained a permanent guardian--and lost her independence permanently.
Refusing 83-year-old Letty the right to appear at her own hearing last week, as well as the right to hire an attorney to represent her interests at that hearing, Denver Probate Court Judge C. Jean Stewart ruled on Monday that Letty needs 24-hour "supervision" for the rest of her life. That supervision includes deciding who Letty can see or call, where she can go, and how she will spend what's left of her estate--already decimated by the court's earlier decisions.
Stewart also determined that Letty will not be able to see the most important person in her life--her son, John Milstein--until he agrees to "court-approved" counseling.
Letty Milstein wasn't the only one banned from the June 3 permanent-orders hearing. Attorneys Drew Petrie and Cris Campbell, who contend that Letty hired them in May, were ordered out of the courtroom by Judge Stewart. So were Letty's former attorney, several guardianship watchdogs and a reporter.
And then, in private, Stewart determined Letty Milstein's future.
Petrie and Campbell claim that Judge Stewart not only violated Letty's rights, but also Colorado's Probate Code and Code of Judicial Conduct. Of primary concern, they argue, is not just the closed hearing, but a secret visit Stewart paid to Letty on May 23, in which she interviewed the elderly woman "in lieu of testimony" at the hearing.
And then Stewart took it upon herself to act as "counsel, expert witness and fact finder" as well as judge, the lawyers charge.
"I've never seen anything like it," adds Campbell. "Everyone I talk to can't believe it."
The scene in Denver Probate Court last week marked the start of the latest, and perhaps last, act in a real-life drama that has pitted Letty's daughter, flamboyant arts patron Judi Wolf, against Letty's son, John Milstein ("Mommy Dearest," May 22).
The relationship between Judi and her much younger brother has never been close. It became more strained after Judi married millionaire oilman Marvin Wolf.
John was Letty's favorite, and she often boasted about his having graduated from Harvard Law School--even though, as Judi points out, he never practiced law. But Judi was extremely jealous of John, Letty told friends and neighbors. Some of them blame Letty's current misfortunes on Judi; they say she may be using her mother to get back at her brother.
Even if that means Letty Milstein winds up broke and in a nursing home, which is the last thing she wants.
In December 1994, Letty balked when Judi and Marvin sent a lawyer over to her southeast Denver home to help her put her estate in order. Among other things, the Wolfs demanded that Letty remove John Milstein's name as the beneficiary on several money-market accounts in the event of her death. Letty refused to make the change.
Marvin Wolf sent Letty a bill for the attorney's unrequested services. Soon after, Letty hired attorney Bob Horen to look after her legal affairs.
In December 1995, Letty, who'd lived alone in her house since her husband's death in 1987, fell and broke her hip. While she was still in the hospital, according to Letty's friends, Judi said that her mother had been diagnosed with severe dementia and would not be able to live at home again--even though Letty had been on her own for years, with occasional help from her neighbors and John.
The following spring, though, with the help of John, Horen and Letty's longtime neighbors, Dr. John and Dorothy Denst, Letty decided to hire a health-care agency to provide part-time help to see her through rehabilitation--at her own home.
But that April, Judi Wolf suddenly petitioned the Denver Probate Court to appoint a temporary guardian and conservator to look out for Letty's "best interests."
Without substantiating medical evidence from a doctor, as required by Colorado law, Judge Stewart determined that Letty was incapacitated because of dementia--a product of the aging process marked by the loss of short-term memory--and in need of a temporary guardian.
Colorado statutes also require that family and friends, such as the Densts, be considered as potential guardians before professionals are appointed and that the least restrictive form of guardianship be attempted. Instead, Stewart named as guardian Gordon Wolfe, the director of Human Network Services, who had been requested by Judi on the recommendation of her lawyer. (That lawyer and her firm had represented Wolfe in several cases concerning complaints about his services.) Wolfe, who has a reputation among guardianship advocates for being high-priced and overly restrictive, turned around and immediately began limiting visits to Letty and her use of the telephone. He also left aides a memo instructing them to treat Letty "like a disciplined child." Letty was angry at their instrusion and let them know it.
Wolfe blamed the restrictions, along with what would later turn into extremely costly 24-hour home health care, on John Milstein's interference. At court hearings, Wolfe's aides testified that John agitated his mother. But one aide, who claimed she was fired when she questioned Letty's need for 24-hour care, told Westword that she and other aides had noted in daily logs that John had a calming effect on his mother.
Letty also avoided all contact with her daughter, whom she blamed for the guardian's invasion of her privacy and the disastrous drain on her finances. (By April of this year, almost $400,000--about half of Letty's estate--had gone to home-health-care costs and legal fees, often for lawyers who were fighting among themselves.)
Last August, Wolfe resigned from Letty Milstein's case after billing nearly $40,000 for a few months' services. He told Westword he did so because he could no longer condone the extraordinary costs to her estate. "The legal fees were outrageous," he says.
But Wolfe was also under pressure from attorney Horen, who was trying to overturn the restrictions placed on Letty's contact with friends and family. By October 1996, those restrictions included a restraining order Judge Stewart issued against John Milstein, prohibiting him from visiting his mother.
In court documents, Horen compared the restrictions placed on Letty with those placed on an inmate in a state penitentiary--unfavorably. He also contested the high cost of Letty's care and questioned whether such an intense plan was even necessary.
After Wolfe resigned, Horen tried to have the Densts, Letty's neighbors, appointed as her guardians. The retired doctor and nurse were willing to perform the service for free, he told the judge. But Judi Wolf complained that the Densts would be biased, and Stewart instead appointed Florence Jones, the director of Home Care Management. In December, while under HCM's care, Letty fell two more times, breaking her wrist and a hip.
Although physicians disagreed on the severity of Letty's dementia, it was clearly getting worse. Judi's side blamed her mother's decline in part on John's agitation; the other side blamed it on the disruptions to Letty's life brought on by court actions, including the forced absence of her son.
In January, Horen was dismissed as Letty's attorney by Stewart, who then appointed Elizabeth Paul as Letty's guardian ad litem. A GAL is an attorney chosen by the court to look out for the legal interests of an incapacitated person; in actual practice, though, the GAL can be less an advocate than a servant of the court.
"I don't represent your mother," Paul stated in a conversation taped by John Milstein.
By early this year, John and Letty's friends and neighbors were concerned that no one was representing her wishes. She complained that she wasn't allowed to visit her son or lifelong friends. And she resented the constant presence of aides, who monitored her telephone calls.
On Friday, May 16, Horen contacted Paul and asked to visit Letty "because I had not seen her in person since my court-ordered withdrawal as counsel of record." Paul granted permission for what she would later complain to the court was supposed to be a "social visit."
But the visit was more than social. Horen brought attorney Campbell with him.
"I went to Mrs. Milstein's house in May because she still views me as her counsel, despite the fact that I had been directed to withdraw," Horen wrote in a recent court filing supporting Letty's hiring of the new attorneys.
"I told Mrs. Milstein that the Judge had relieved me, and I asked her again whether she still wanted legal representation of her own choosing. Consistent with what has been her stated wishes throughout this action, Mrs. Milstein repeated that she wanted legal representation in connection with this case."
That's why Horen took Campbell along, he told the court: "I wanted to give Mrs. Milstein an opportunity to interview him."
According to Campbell, Letty retained him verbally that day. "I took the case," he says, "after reading the file and seeing that everyone in the world seemed to be involved except for Letty. And that didn't seem fair."
As the June 3 hearing approached, the action intensified. On Saturday, May 17, Channel 9's ten o'clock news featured a report about the fight over Letty's care and estate. Westword's piece, "Mommy Dearest," was published May 22. Among Letty's many complaints detailed in that story was that she was not allowed to attend her own hearings. Judi said her presence wasn't necessary, Letty told John Milstein.
Judi Wolf declined to be interviewed by Westword, citing the pending hearing on permanent orders in her mother's case. (She did, however, manage to contact Norwest Bank, the temporary conservator appointed by Stewart to guard Letty's financial interests, to let the bank know that she was willing to purchase her mother's home "at fair market value." Letty would then be allowed to live there for the remainder of her days rent-free, while the proceeds of the sale could be used to support her other expenses. The bills presented by the temporary guardians in this case were "significantly more" than the amount Norwest had signed off on when it petitioned the court to accept a financial plan last summer, according to court documents. Even if Judi Wolf buys her mother's house, at the current rate of expenditure, Letty's once-comfortable estate will be exhausted within three years.)
The day the Westword article appeared, Letty received a call from Stewart's clerk informing her that the judge would be by the next day to talk to her. On Friday, May 23, the judge arrived at Letty Milstein's door.
What transpired at the meeting--which only Letty, Judge Stewart and a court reporter attended--has not been made public. Even lawyers involved in the case have not been able to obtain a transcript. And the judge has since taken steps to seal a number of other documents related to the case.
May 23 was a busy day. While the judge visited with Letty, Florence Jones withdrew her application to serve as Letty's permanent guardian and asked permission of the court to resign as temporary guardian. Jones was "pleased to report that the dementia of Letty Milstein seems to have stabilized, with some days better than others," her petition to the court read. "Additionally, the physical condition of Letty Milstein has significantly improved. It is believed that Ms. Milstein is in as good, if not better, condition than she was at the time the court proceeding was initiated" over a year before.
According to her lawyer, Glenn Hagen, Jones was resigning in part due to "significant negative verbal attacks in her role as Guardian both privately and publicly."
The media attention seemed to have touched a nerve at the courthouse. Hagen noted that from Paul's appointment in January through March 27, there had been only two meetings and six phone calls between his client and the GAL. "In the last few days," he said, "there has been a 'crisis' mentality of multiple contacts to implement a new care plan in secrecy and without approval of either Ms. Jones or the court."
This wasn't the first time his client had had problems with Paul, Hagen told the court. "Florence Jones notes there are irreconcilable differences...between herself and the Guardian Ad Litem, Lis Paul. Although Ms. Paul was appointed by the court January 17, 1997 with specific duties, Ms. Paul seems to have 'crossed the line' as to duties and direction."
The attorney listed several examples of the discord between his client and Paul. One was that after acquiring all the medical records on Letty, some 600 to 700 pages, Paul, "or those chosen by her to serve as 'experts,' deemed that the records were unnecessary as the 'experts' desired to develop a new history without the influence of the past record."
Jones, through her staff and in consultation with Dr. John Westfall, Letty's primary-care physician, "did not believe that additional medical evaluations are necessary," Hagen noted.
Earlier, Paul had brought in her experts, social worker William Smith and psychiatrist Bruce Leonard. Even Judi, who'd first introduced the concept of a guardian, was somewhat taken aback by the growing cast of characters and asked that no other physicians be hired without court approval. The judge went along with Paul, however, and approved payment of a bill from Leonard and Smith for $3,440 during a two-month period this spring.
Jones had even come up with a plan for supervised visitations between John and his mother, Hagen told the court, but Paul had overridden that with the order that "visitations are not to occur."
And Paul was making other unilateral decisions, Hagen said: "Although Florence Jones has been following the Personal Care Plan approved by this court...during the last few days Liz Paul has insisted upon implementation of a new care plan devised by Liz Paul, which has not been made an order of the court.
"Ms. Jones does not believe that the revisions are in the best interest of Letty Milstein and could cause a serious reversal as to the stability of both Letty and the on-site caregivers."
Paul had told Jones that the judge had privately agreed to this plan, Hagen noted. And Paul had also warned his client to keep the plan confidential and not discuss it with either her attorney or Judi Wolf.
Jones, Hagen said, wanted the court to "clearly define the roles and duties of Paul, and renew her authority as temporary guardian to make all decisions relative to the health and physical, emotional, and behavioral well-being of Letty Milstein, including supervised visits by John Milstein." If the court declined to do so, Jones was tendering her resignation.
The judge accepted it.
But the events of May 23 were not yet over. Once again, Horen and Campbell visited Letty Milstein.
"The purpose of this meeting was to confirm Mrs. Milstein's wishes and to ensure that we had not first met with her earlier that month at a time which was not representative of her mental condition," Horen wrote in a court filing.
"At both of my May meetings with Mrs. Milstein, she fully understood that I had been relieved as her counsel of record, expressed her continuing fervent desire to have counsel of her own choosing, and that she wanted to have Mr. Campbell and the Petrie, Bauer and Vriesman firm represent her."
Over the period of time he had represented Letty, Horen added, "I had repeated opportunities to talk to her and to observe her demeanor. On both of the visits in May, I found Mrs. Milstein to be clear, lucid, and able to understand the nature of her legal predicament. Mrs. Milstein expressed her desire to testify at the permanent orders hearing."
But four days later, on May 27, Judge Stewart sent a letter to John Milstein stating that she had determined his mother's cognitive abilities were "significantly impaired."
She was writing the letter at his mother's request, Stewart said. "On Friday afternoon, I met with her for the purpose of taking her statement to be used in lieu of her personal appearance and testimony at the upcoming hearing," the judge wrote. "We discussed her present situation and her desires for the future...She expressed no complaints about her present care or living arrangements.
"I found her to be cheerful, comfortable, and much improved over her condition when she and I last met. Your mother is sad and concerned about the restrictions the Court has placed on your contact with her. As you undoubtedly know, she is proud of your achievements and wants you to be respected.
"We discussed how she could achieve the peaceful, relaxed relationship with you that she wants. She asked me this provocative question: 'How can John turn the page?'"
Here was the answer Stewart gave: John would have to contact social worker Smith and participate in recommended counseling. "Your mother implored me to tell you this and assured me that I could expect your full cooperation," Stewart wrote. "The Court will not involve itself in your work with Bill Smith except to ask for a report that the work is progressing."
The judge concluded her letter with this: "In spite of your mother's strenuous protests, your family's private life has attracted the attention of local media representatives. I have assured her that the Court will continue to take every possible step to protect the privacy which she so earnestly desires. In light of her position, I trust that you will do the same."
John took the letter as a not-so-thinly veiled threat to stop talking to the media, as well as a more blatant threat that if he didn't meet with Smith, he'd never see his mother.
Letty told friends that Stewart's letter was not an accurate representation of her meeting with the judge.
For one thing, Letty herself had contacted the media, pleading for help. She'd also stayed in touch with nurses who were sent to check on her by the Denver police. In repeated conversations with her son, which he tape-recorded with her permission, Letty voiced her displeasure with her current situation.
"Look at what they do to us--they take our freedom away," she says in one. "This is cruelty. I can't stand it."
Stewart contends that Letty's cognitive abilities are so severely impaired that she can't live without paying someone to do virtually everything but eat and sleep for her. And yet the judge noted that the supposedly incapacitated woman was capable of asking a "provocative" and well-formed question as to why her son couldn't "turn the page."
And if Jones's assessment that Letty is much improved over her condition in April 1996, when the dementia was labeled mild, is correct, then how much help could she need? Her neighbors and son still want to provide aid, and Letty had expressed her willingness to hire part-time homehealth-care providers.
But Stewart was already taking steps to "protect the privacy" of Letty Milstein. Late last month she approved Paul's request to enter Letty's premises with a technician in "anticipation" that the judge would order even more severe telephone restrictions on Letty.
On the same day she wrote to John, Stewart issued another order stating that Letty Milstein "will not be present in the courtroom" at the June 3 hearing.
That order came as a surprise to Letty.
His mother had prepared a speech to deliver at the permanent-orders hearing, John Milstein says. "I had to tell her that the judge wasn't going to let her appear at her own hearing."
On May 28, Campbell and Petrie filed a motion notifying the judge of their intention to attend the hearing on Letty's behalf. They asked for a continuance of up to thirty days in which to meet further with their client and prepare for the hearing.
Through her lawyer, Stan Rosenbaum, Judi Wolf objected to any continuance, noting that the date for the permanent-orders hearing had been set in March. That gave Letty Milstein ample time to obtain counsel if it was her desire and she was "competent to do so."
Guardian ad litem Paul argued that there was no need for Letty to have her own lawyers. Letty's estate would be "unnecessarily depleted" by the addition of more attorneys, she said.
In their response, Campbell and Petrie noted that while an incapacitated person might not be able to make legally binding decisions, that didn't necessarily preclude her from understanding what was happening and assisting with decisions made on her behalf.
While "ordinarily" lawyers might look to a court-appointed GAL to watch out for the interests of their client, they said, that decision was entirely up to the lawyers' professional judgment. "There is nothing ordinary about this case," the two attorneys wrote. "The reason why Mrs. Milstein retained this firm is because, contrary to her expressed desires and to statute, her voice has not been heard and her interests not served in this proceeding...Mrs. Milstein has been deprived of her right to have counsel of her choice, to appear at hearings and to present evidence on her behalf."
The lawyers cited the Colorado statute that outlines an incapacitated person's rights: "The person alleged to be incapacitated is entitled to be present at any court proceeding in person and to see or hear all the evidence bearing upon his condition. He is entitled to be present by counsel, to present evidence, to cross-examine witnesses, including the court-appointed visitor and any court-appointed physician, and to trial by jury upon written demand."
But on May 29, Judge Stewart ruled that there would be no continuance and that Letty Milstein would not be coming to that hearing. "Mrs. Milstein," she added, "lacks the legal capacity at the present time to employ legal counsel."
The judge further ordered that there was to be no more telephone contact between Letty and her son.
"Mr. Milstein continues to harass and otherwise disturb the peace" of Letty's household, the judge wrote, adding that it constituted emotional abuse of the elderly.
Letty's "diminished mental capacity leaves her vulnerable to Mr. Milstein's actions and instructions in direct conflict with her wishes for peace and privacy," the judge said.
Stewart added a handwritten addition to the typed order: "Mr. Milstein consistently avoids or ignores the Court's admonishment to seek counseling or therapy." As proof, the judge referred to an incident this Mother's Day, contending that John had told Letty not to go with Judi to her home.
But it was Letty who called John that day, complaining angrily about Judi pressuring her to leave home. John taped that conversation, too.
If May 23 had been a busy day in the life of Letty Milstein--and for everyone involved in deciding Letty's future--June 3 was even busier.
That morning, before the hearing began, Campbell and Petrie filed more motions. One asked the judge to reconsider her orders preventing Letty from attending her own hearing and her determination that Letty "lacked the legal capacity" to hire counsel.
The lawyers also demanded that the judge step down from the case, citing Stewart's "ex parte" contact with Letty on May 23. Such one-sided meetings are prohibited by the Code of Judicial Conduct. And the Probate Code does not authorize the court to obtain information on its own outside the courtroom, the attorneys noted, but states that the court should appoint "independent third parties to gather facts and opinions and report back to court.
"Despite these rules," they argued, "the Court has taken it upon itself to act not only as judge, but also as counsel, fact witness, expert witness and fact finder.
"The court has already decided the issue ostensibly at stake at Mrs. Milstein's June 3 permanent orders hearing: It has decided that Mrs. Milstein is incapacitated. If this is so, then the June 3 hearing is not even necessary; the Court has already decided the issue. In this case, the combined effect of the Judge's ex parte contact and her letter to John Milstein is to demonstrate that not only is the Judge biased, but that the Judge has made herself a material witness in the matter of the permanent orders hearing and other issues which the Court will need to address."
For those and the other reasons outlined, Petrie and Campbell argued, the judge should disqualify herself.
An hour after the hearing was scheduled to start, Judge Stewart still had not appeared. Instead, the Wolfs and their attorney, John Milstein and a friend, and Liz Paul were asked to see the judge in chambers.
There, Judge Stewart asked Letty Milstein's family if they wanted the hearing closed to the public. John Milstein did not want it closed. Judi and Marvin Wolf said it should stay open; their attorney noted that there was already a perception that too much of this case had been conducted in secrecy.
Only Paul asked that the hearing be closed.
The judge sided with the GAL.
Returning to the courtroom, Stewart ordered all those not directly involved in the case to leave. This included Campbell and Petrie, who stood and asked the judge to rule on their motions.
Stewart told Petrie she did not recognize him as Letty's counsel but would answer anyway: She would neither reconsider her rulings nor disqualify herself.
The judge then closed the hearing. A deputy sheriff locked the doors behind those ordered to leave.
On Monday, June 9, Judge Stewart finally issued her permanent orders. Letty Milstein needed a permanent guardian, she determined, and she named Patricia Ayres to that position.
Letty, the judge wrote, suffers from moderate and progressive dementia. "She lacks sufficient understanding or capacity to make or communicate responsible decisions concerning her person and needs a guardian. The testimony is uncontroverted that Mrs. Milstein needs 24-hour supervision to maintain her safety."
Ayres, while prohibited from seeking out-of-home care without further instructions from the court, is "solely responsible for scheduling activities around Mrs. Milstein," Stewart ruled. The guardian is to maintain and support Letty's relationship with her beloved dog, Surprise. And the guardian is to make an effort to see that Letty gets involved in "appropriate social activities" with "friends, synagogue, neighbors, and peers." Activities, Stewart said, that Letty has resisted.
Those activities are not to include John Milstein, who continues to represent a "danger to Mrs. Milstein's emotional well-being and to her health," the judge said. Until he comes to a better understanding of his mother's condition and "until he can demonstrate to the guardian and to the court his satisfactory cooperation and participation in appropriate, court-approved counseling...there shall be no unsupervised contact between him and Mrs. Milstein." The judge noted that John had not picked up several medical and guardianship reports available to interested parties. But John says those reports come with the requirement that he sign a confidentiality agreement.
The telephone restrictions also remain intact. In fact, Stewart ordered that Letty's number be changed and unlisted because of "unsolicited and troubling phone calls from strangers during the past few weeks." John says those were calls of support from friends and church groups.
In much of her eight-page order, Stewart appeared to be defending herself while rebuking Campbell, Petrie and Horen. She contended that Horen resigned in February 1997 "with the court's permission." As for Campbell's and Petrie's attempts to enter the case, Stewart said that Letty was entitled to counsel only if she "voluntarily requests" it. "The Court is aware of no such request by Mrs. Milstein...but is aware that Mrs. Milstein is susceptible to manipulation, confusion, and suggestion by others...
"The Court purposely met with Mrs. Milstein without advance knowledge to, or in the presence of either of her children, because it was the Court's intention and desire to know what Mrs. Milstein wanted personally, not what her two children wanted her to want."
Or, presumably, what a judge wanted.
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