VULNERABLE Trapped in LEGAL SYSTEM
When the COLUMBUS DISPATCH does an Investigation, it is really something — upsetting, but very impressive. These people at the DISPATCH deserve the accolades which are pressed upon them. The last one a year or two back was on CREDIT WOES. As I said, upsetting, but impressive. This one promises no less. . .its kinda moth to the flame, one can’t help oneself, you just have to read it. (If you missed reading the Credit Woes multi-part Investigation, you can still go online and access it). . . or search back in my posts, it’s there someplace.
This one is called “UNGUARDED” and its a Five-part piece which started Sunday, May 18th. I’ll try to get a couple more up tomorrow and bring you up-to-date. Not going to suggest you’ll have a good time in the reading, but this is vital stuff which could be thrust upon any of us at any time. It is worrisome that our legal system could allow any of us to be so very badly treated and abused, from our youngest to the helpless and/or aged among us. Yes, it important to become more aware and also to know what our rights and responsibilities are. So here you go:
U N G U A R D E D
Most vulnerable trapped in system
Tens of thousands of Ohio’s defenseless residents are caught up in a legal system that purports to protect them but exposes them to potential neglect and financial abuse.
They are children and adults deemed incapable of making sound decisions. Their court-appointed guardians operate with little oversight. And even judges say the system is broken, leaving innocent people open to unscrupulous guardians.
Anyone can end up in this system. And almost anyone can become a guardian.
Investigations launched into billing by lawyers appointed as guardians
By Lucas Sullivan, Josh Jarman, Mike Wagner and Jill Riepenhoff THE COLUMBUS DISPATCH
When a woman in his care fell and was injured, an attorney-guardian billed her $135 to talk to her family about what happened and give her father directions to the hospital.
An attorney-guardian charged seniors with dementia legal fees to buy them Christmas presents with their own money.
And another charged an elderly woman $300 for time the lawyer spent eating cookies with her.
- When attorneys are appointed as guardians by the Franklin County Probate Court, they are supposed to look out for the best interests of the vulnerable adults, known as wards.
But a yearlong Dispatch investigation shows otherwise and has prompted criminal investigations and court audits. Among those targeted by the court is Columbus lawyer Paul S. Kormanik, who says he has more wards than any other guardian in the country.
A Dispatch examination of thousands of court records found numerous questionable bills that Kormanik submitted to the court, including more than $1,600 in legal fees to clean out a ward’s house so he could sell it. He hired his own family members to do that job, using the ward’s money to pay them.
He also billed the wards thousands of dollars for opening their mail and taking their telephone calls.
Every bill from Kormanik included this message to the court: “The services required by this ward required substantial legal skills and experience.”
Franklin County Probate Court rules specifically state that guardians cannot submit bills at legal rates for non-legal activities. Even so, court magistrates approved them. After The Dispatch raised questions about Kormanik’s billing practices, Probate Court officials began auditing some of his cases last month.
- Probate Judge Robert G. Montgomery, Prosecutor Ron O’Brien and Ohio Attorney General Mike DeWine are now investigating how some attorneys treat and bill the people they swore in court to protect — the elderly, the mentally disabled and children.
“Our Economic Crime Unit has met with representatives of the Ohio attorney general’s office in connection with expenditures from guardian estates,” O’Brien said. “Since those matters are ongoing, I am unable to comment further or identify any specific case.”
Like O’Brien, the court officials wouldn’t discuss specific cases, but they confirmed their investigation and said in a statement that “when warranted by the facts or the law, (the court) may make any additional and proper inquiries to ensure that vulnerable wards are protected.”
Franklin County has the highest caseload per judge of any probate court in Ohio, and although two-thirds of the guardians it appoints are not lawyers, finding volunteer guardians is increasingly difficult. So the court relies heavily on lawyers who are willing to take on multiple wards. Kormanik proudly says he has about 400.
The relationship between an understaffed court that is overwhelmed with cases and lawyers who are, in essence, professional guardians has resulted in routine approval of the guardians’ actions without much scrutiny. Records show that the court staff tends to trust lawyers and dismiss complaints by wards.
- Probate judges have broad powers to fine or jail a guardian for neglect or abuse. That has not happened in Franklin County since 2000.
In that time, about 2,500 Franklin County guardians have been hit with more than 4,500 citations, mostly related to not filing annual reports on time. Of the cases in which a guardian was removed, most were prompted by a third-party complaint from the county’s developmental-disabilities board, the U.S. Department of Veterans Affairs or a concerned family member.
Court officials and others, such as doctors and nursing-home administrators, often call the attorney-guardians directly to get them to take on another ward rather than seeking other potential guardians.
Former Franklin County Probate Judge Lawrence A. Belskis, who served on the bench for 18 years until 2009, said he tried to rein in Kormanik’s caseload.
- Kormanik “sought out his wards; the court didn’t assign them to him,” Belskis said. “We were trying to restrict him … because I had concerns about him.”
He said he called the Ohio Supreme Court about reviewing the guardianship system, but his concerns did not lead to a review of Kormanik’s court cases.
Montgomery, who became probate judge in January 2011, acknowledges that relying on a few lawyers has created a potential disaster.
Montgomery said that if something were to happen to Kormanik or Groveport lawyer John Mashburn, who has more than 200 wards, Montgomery would have to shut down the court’s normal operations and immediately scramble to find guardians for their wards.
“I know the judge has concerns,” Mashburn said. “Joking, he says, ‘I don’t want you and Paul on the same airplane.’”
Kormanik appeared at an April 15 hearing about the court audit of his cases but was not in court for a second hearing scheduled for May 6.
Montgomery wants him to explain why he has collected guardian fees from both a ward’s assets and from the county’s Indigent Guardianship Fund, public money set aside to pay attorneys $420 a year to serve as guardians for poor adults. To collect from both the ward and the county is double-dipping and not allowed.
The Dispatch reviewed six of the cases under investigation by Probate Court. In each case, Kormanik found money belonging to the ward, paid himself and then did not fully reimburse the indigent fund. Or he repaid the money from accounts that did not belong to him, such as a ward’s account at a nursing home where Social Security checks were deposited or financial gifts from loved ones were held.
“I think it is wise and prudent for the court to review these cases to make sure all is in order and to learn more about the repayment practices so that recommendations and improvements can be made in the process,” Kormanik said in an email on Friday. “I welcome the additional review.”
After the April 15 hearing, a magistrate ordered Kormanik to repay more than $3,000 to the indigent fund.
Kormanik also was ordered to provide an accounting by the end of this month on the sources of assets he found for his poor wards. Kormanik used those funds to pay himself more than $12,300 in fees with no explanation of the funding source.
- “It appears the guardian-attorney Kormanik is placing his interests ahead of the ward’s best interest and the court’s best interest in maintaining a functioning” indigent fund, wrote Senior Magistrate Benjamin F. Suffron III.
Suffron removed Kormanik as the guardian of an estate in one case because he failed to report to the court that the ward had an annuity worth more than $130,000 even as he collected $1,680 from the indigent fund over four years.
- The ward, Ginger Leppert, has long been suspicious of her guardian. In 2011, she asked the court to remove him because of “neglect. I am upset over my money and no visitation rights with my family,” she wrote.
A different magistrate dismissed her complaint as “not credible.”
Probate courts generally allow guardians to charge wards two types of fees — a guardian fee and an attorney fee.
Guardian fees are determined by formula and amount to a small percentage of the ward’s estate. That fee is meant to be a reasonable charge to cover a guardian’s time and costs to set up and travel to doctors’ appointments and review mail and pay bills, but it should be much lower than legal fees.
Attorney fees are supposed to be for legal work only. The court technically requires a hearing any time a lawyer submits a bill, but it is often waived.
Montgomery said holding hearings is nearly impossible because of the high number of fee applications. Instead, he said, the court’s nine magistrates, who have judicial powers, review the bills on the spot and can question attorneys then.
“They do get reviewed; it’s not a rubber stamp,” the judge said.
Some attorneys don’t submit their bills in person. They send assistants for approval and charge wards $100 to $200 for filing their bills with the court.
Magistrates told The Dispatch that they have encouraged attorneys to file bills even when a ward has no assets, just in case the ward eventually receives an inheritance or wins cash. Because of that pre-approval, some also appear to be tapping small funds their poor wards receive from Social Security or as gifts.
The court’s inability to follow its own rules has led to hundreds of questionable bills.
Kevin A. Craine, an Upper Arlington lawyer with about 90 wards, has for years charged a majority of them fees for time spent buying them Christmas presents with their own money.
Craine’s practice is to charge the ward between $500 and $600 for a gift. That includes $300 to shop for the gift, $100 for his daughter or a staff member to deliver it, and about $150 in legal fees to file a paper in court to withdraw funds. He does not provide the court with receipts to show what he bought.
Craine said he feels that wards who have money deserve a good Christmas.
“Some of these people have no involvement from anybody at Christmastime, and you get them a planter, you get them whatever, and there’s a little bit of Christmas given to that person,” he said. “It sounds schmaltzy, but that’s what it’s all about.”
In another instance, he turned in a bill for nearly $15,000 that included a “wholesale” or catchall fee of $5,900 — a charge for any phone calls, emails or other correspondence throughout the year for which he had not accounted earlier.
“We don’t do this anymore,” he said. “The court specifically told us, ‘Don’t do that,’ and we don’t.”
But court documents show that magistrates approved such catch-all charges as recently as January.
Some judges in other Ohio counties who saw copies of bills from Kormanik and Craine said they would not accept them.
Thomas A. Swift, probate judge in Trumbull County since 1979 and former chairman of the Ohio Judicial Conference, said lawyers should know better than to bill wards legal rates for guardianship work.
He said he occasionally receives bills with legal fees attached to what he considers guardian work, such as meeting with the ward or coming to the court to file paperwork.
“It comes right off” the bill, Swift said. “That’s not legal work.”
Tangled web ‘looks bad’
Jane Bevington was convinced that distant family members money. (?)
She had been in good shape and independent until just before her 90th birthday, when she began to fall down.
A family member near Detroit contacted Craine and asked that he become Bevington’s guardian for medical and financial needs, including managing her nearly $3.5 million estate.
Bevington, a former clerk in the Ohio attorney general’s office, was skeptical, so she asked attorney Lorelei M. Lanier to be co-guardian. Bevington did not realize the lawyers would charge nearly $204,000 in fees in four years.
The lawyers billed her thousands just to talk to each other. Lanier charged Bevington a $300 attorney rate to visit and have cookies with her.
Lanier could not be reached for comment.
Craine said he couldn’t explain a clear legal service provided for his fees.
Bevington was living in a Columbus nursing home in June 2011 when Craine wrote the court that she was falling. He hired an outside-care facility, Nightingale Home Care, that placed a specialist in her nursing home at a private-pay rate of $22 an hour. But he didn’t tell the court that he’s on the board of that company.
Craine incorporated Nightingale in 1994, state records show, and he serves as board chairman for the nonprofit company with $1.5 million to $2.5 million in annual revenue.
In one year, Nightingale billed Bevington more than $211,000 on top of the $58,000 a year she was paying the nursing home.
Several of Craine’s wards have been served by Nightingale.
In 2008, Craine was appointed guardian of Peggy Barton, an 80-year-old widow who had more than $705,000 in assets. In three years, Barton’s estate paid more than $500,000 for Nightingale’s around-the-clock care at her Columbus home.
Craine said he doesn’t know why he didn’t disclose his Nightingale connection in his letter to the court about Bevington, but he said he has mentioned his association to the court.
He said he has no financial stake in the company. As board chairman, Craine said he and the other board members have the ability to hire and fire the executive director, who works for the board.
His involvement raises significant questions about conflicts of interest outlined in the Ohio Rules for Professional Conduct. The rules say that a conflict could exist if a lawyer is a board member of a corporation at the same time he represents a client served by that organization.
Craine’s relationship with his ward and Nightingale also could come into conflict in cases of attorney-client privilege. The rules state that a lawyer should not allow or give the appearance that his business interests affect his representation of a client.
“It looks bad, I understand that,” Craine said. “But I assure you it’s, frankly, thankless work working for that agency. It’s completely volunteer, and I look at it as community involvement.”
Montgomery, who would not discuss specific cases, said lawyers should stay away from things that look bad.
“Even if he or she was not benefiting from that financially, the appearance of impropriety as a lawyer is something we typically try to avoid,” he said.
Bevington’s family expressed frustration with the guardianship system and her guardians, but they declined to answer questions about her estate.
Bevington died in July. In one of Craine’s final bills approved by the court, he charged her estate more than $1,200 in legal fees for five hours of work to call the funeral home and talk with her family about the funeral.
“Somebody has to commit dollars for the service, and that’s where the legal services came in,” he said.
Kormanik said last month that nursing homes and hospitals often contact him about people who need guardians. It’s in part how he has amassed about 400 wards.
“Where these cases come from is we don’t take care of the mentally ill well in our society,” Kormanik said. “So these people are out there walking the streets or not doing very well, and they face some sort of physical breakdown, and that is normally when I get the referral.”
- Experts on guardianship, including some judges, say they are stunned that a guardian such as Kormanik is allowed to operate, saying it is nearly impossible for one lawyer to handle the needs of so many.
Kormanik described himself as a “social worker” who is always looking out for the best interests of his wards. He said he manages with four full-time employees and 21 part-time support-staff members. He contracts with other lawyers for complex legal matters.
Most lawyers said they average between 20 and 40 wards per full-time staff member in their offices. Kormanik averages 80, if you include him.
Several families complain that Kormanik has too many wards to give any of them individual attention, or even to remember details of the cases.
- Kormanik was in court to file for fees just days after Richard Williams died in a Columbus nursing home in the fall of 2012. Kormanik contacted a local funeral home to arrange burial, but he didn’t mention Williams’ death to court officials.
In a letter to the court, Williams’ daughter Rachel Fasig wrote, “I am quite concerned that my father’s guardianship and estate has not received appropriate or compliant representation by Mr. Kormanik.” Fasig’s letter elicited no follow-up from Franklin County Probate Court. Nothing in court rules requires a guardian to notify the court of a ward’s death. Kormanik said he needed time to pay Williams’ bills and end arrangements before terminating the guardianship — nine months after Williams’ death.
“They aren’t these neatly tied packages with a little bow on them,” he said. “Each one has its own life, and each one has its own complications.”
In another case, Ellen Humbert wanted to spend her final days with her husband at a Westerville nursing home. They had been married for 45 years, and dementia had robbed Ellen of most of her memories.
A nephew pleaded with Kormanik to get Medicaid approved because the nursing home would not take residents with pending applications. Neither court records nor anyone from the nursing home nor Kormanik could explain why the couple was separated.
“We had a hard time getting phone calls returned” from Kormanik, said John Humbert, the nephew. “We went out and found an elder-law attorney and paid him to get Ellen on Medicaid.”
Critical months passed before Ellen was approved for Medicaid and reunited with her husband in spring 2013. Compounding problems from severe dementia left her speechless. She died about six weeks later.
Don Chapin, of Columbus, who is regarded as an expert elder-law lawyer, was the attorney hired by the family to get Ellen on Medicaid. Chapin said lawyer guardians are often “inexcusably ill-equipped” to handle the Medicaid system.
Kormanik said Medicaid “is the hardest thing we do.” As for getting a ward approved for Medicaid, he said, “That’s something that we try to do, but I don’t know if that’s my responsibility.”
Meager estate gone
When Kormanik sold Albert Metoyer’s Columbus home at auction for $50,000 in 2008, he kept about $5,800 from the sale for his fees before they were approved by the court. He submitted his bill months later, and it was approved by magistrates.
Kormanik charged attorney rates for reviewing emails and talking to a real-estate agent. He billed $250 to meet with Albert’s son, Phillip.
Albert was a veteran of World War II and the Korean and Vietnam wars for the Army and the Air Force. In summer 2007, at age 84, his memory was fading and he was having trouble keeping up with his bills. He had been in Heartland Victorian Village for nearly a year.
Phillip was trying to get his father on Medicaid as the nursing-home bills piled up to more than $71,000.
Without the family’s knowledge, someone from the nursing home contacted Kormanik. The home wanted Kormanik to be Albert’s guardian and to get him on Medicaid so it could be paid.
Phillip said he was blindsided when a notice from Franklin County Probate Court came, telling him that a stranger had filed to become his father’s guardian. A hearing was set.
Kormanik was awarded guardianship in July 2007. He made missteps from the start, according to court records.
His Medicaid applications for Albert were denied four times. Kormanik ignored directions from the local Medicaid office staff that, if followed, would have guaranteed approval, according to court records.
Elder-law expert Chapin said that’s unacceptable.
“It’s utter malpractice for a guardian not to know Medicaid enough that they get denied more than once,” he said. In August 2008, Kormanik submitted a 13-page bill for more than $12,000, mostly related to his failure to get Albert on Medicaid and for dealing with the nursing home’s law firm trying to collect the debt.
After numerous letters from the nursing home about Kormanik’s issues with Medicaid, the court held a rare hearing in January 2009. Kormanik was defiant and combative, according to court transcripts.
Kormanik’s testimony also revealed that Albert had died in October 2008, something the court didn’t know.
Albert’s relatives said they repeatedly called Kormanik’s office when Albert was near death to figure out funeral plans.
“He never contacted me or said anything about the funeral,” Phillip said. “I buried my dad. Kormanik didn’t do anything.”
The magistrate found Kormanik negligent for not getting Medicaid approval because he did not heed directions. The ruling meant Kormanik was personally liable for the remaining debt to the nursing home.
Then-Probate Judge Eric Brown overruled the decision but said Kormanik’s actions were “ineffective,” “inefficient” and “inadequate.” Brown’s ruling released Kormanik of any personal liability.
The same nursing home that chastised Kormanik in front of the court about his Medicaid problems also challenged the fees he charged to sell Albert’s house. Visiting Judge Thomas E. Louden agreed that Kormanik paid himself too much on the house sale, and as punishment, he ordered Kormanik to use some of that money to pay $3,300 to cover some of Albert’s nursing-home debt.
“There have been many issues about the guardian’s performance in this matter,” Louden wrote in his ruling. “The court finds the attorney fees … far exceed the quality of service to the guardianship.”
Kormanik defended his work, saying the magistrates and judges who reviewed his cases erred. As for Brown’s harsh words, Kormanik said Brown was “early in his career as judge.”
“I am not going to discuss the Metoyer case; it was an anomaly,” he said. “I have paralegals making these bills out, but ultimately, I am responsible. But sometimes we make mistakes.”
Despite signs of deeper trouble, the court handled the case as an isolated incident.
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