- By John Pacenti Palm Beach Post Staff Writer
Glenda Martinez Smith has already made an important impact on adult guardianship of incapacitated seniors in the state of Florida.
The court appeal she won in March 2015 told judges in six Florida counties they could no longer ignore pre-need directives by seniors about who they want as their health care surrogate and pre-need guardian if they become incapacitated.
‘Great public importance’
But Martinez Smith is not done yet.
She is heading to the Florida Supreme Court and aims once again to overturn Circuit Judge David French, who made the unusual move to annul her 2011 marriage to J. Alan Smith at the behest of a court-appointed professional guardian and the guardian’s attorney.
The 4th District Court of Appeal on June 29 certified “a question of great public importance:” to the state’s highest court on whether incapacitated individuals can retain one of the most sacred of American rights.
“It involves the fundamental right of a ward to marry,” said Jennifer Carroll, the Palm Beach Gardens attorney who represents Martinez Smith. “When and under what circumstances does a ward have to get the court’s approval before exercising his fundamental right to marry?”
Martinez Smith added, “I have always been an advocate for people who are disabled. I say you have to fight for your loved ones, no matter what it takes.”
The Palm Beach Post first brought to light Martinez Smith’s fight against the guardian of her husband in April 2015. She wanted to provide care for J. Alan Smith, an 85-year-old former Boynton Beach resident who worked for 30 years for the U.S. Army Corps of Engineers.
He became incapacitated after suffering a traumatic brain injury in a car accident, but before that he had proposed marriage to Martinez Smith and made her his health-care surrogate and pre-need guardian in a living will.
Guardian John Cramer placed Smith in a nursing home where Martinez Smith complained he wasn’t getting the necessary therapy.
Professional guardians — and the attorneys who represent them — are paid out of life savings of seniors in guardianship. A new law signed this year will give the state its first regulatory authority over the professional guardianship industry after abuses were brought to lawmakers’ attention.
An annulment can be a cash cow for a guardian and the attorney who represents him or her. The Post reported in its series Guardianship: A Broken Trust how annulment proceedings initiated by a guardian can drain the estate of the senior and cost loved ones tens of thousands of dollars in court fees fighting it.
A marriage annulment in guardianship can affect benefits for the surviving partner after the incapacitated senior dies and cause great emotional pain for the couple. Martinez Smith contends that the annulment was designed so that the guardian and his attorney could drain as much money from her husband’s accounts, as possible.
Martinez Smith, who was financially secure long before she met Smith, said she spent upwards of $150,000 form her own money fighting the guardianship and reversing decisions made by Palm Beach Circuit judges. Her husband, she said, was left personally bankrupt as the guardian liquidated life insurance policies.
She got no relief from the judges. Circuit Judge Martin Colin threw her out of the courtroom. He also insulted her looks. The 4th DCA on April 3, 2013 granted her petition to disqualify Colin.
The court concluded “that the judge’s acts of ejecting petitioner from the courtroom, later striking her testimony on the basis of a perceived insult to him, and his comment that petitioner’s entire demeanor, including that ‘her face, her voice, her sound, may be unpleasant to everyone else,’ save the ward, would lead any reasonably prudent person to fear that she would not receive a fair hearing before the judge.”
Martinez Smith didn’t know at the time that Colin’s wife, Elizabeth “Betsy” Savitt, worked as a professional guardian. Colin announced his retirement after The Post’s Broken Trust series reported on the judge’s conflict of interest and the litany of complaints orbiting his wife’s guardianships. Colin was transferred out of the guardianship division then announced his retirement.
When Judge David French inherited the case, Martinez Smith was unaware he was good friends with Colin and Savitt — so much so that French once planned a cruise vacation with them. When she brought up concerns that Smith wasn’t receiving his therapy in the nursing home, Cramer’s attorney Ellen Morris sent a letter to Judge French, who then banned her from seeing the man she married.
Again, Martinez Smith turned to the 4th DCA and persevered. The appellate court headquartered in West Palm Beach controls courts in Broward, Indian River, Okeechobee, Palm Beach, St. Lucie and Martin counties.
The March 2015 decision stated Smith’s preneed health directives naming Martinez Smith as his surrogate long before the car accident could not be undone by a judge or professional guardian. She brought Smith back home to Miami to care for him and Cramer resigned as guardian.
Cramer and Morris did not return phone calls or emails for comment.
Martinez Smith’s last mountain to climb: reversing French’s annulment of her marriage.
Annulment on appeal
The ruling to send the issue to the Florida Supreme Court stems from a request for a rehearing after the 4th DCA initially ruled against Martinez.
Judge Martha Warner — who has been an advocate in the court’s decisions for the rights of incapacitated people — was joined by Judge Melanie May in asking the Florida Supreme Court to clarify the statutes, saying it “particularly affects the elderly.”
State law requires court approval of a marriage of an incapacitated individual who has lost his right to enter into contracts. The 4th DCA wants to know whether a judge can approve a marriage after the fact or whether the incapacitated individual has to get approval beforehand.
“Because of its implications on the fundamental right to marry and its potential impact on wards, the interpretation of that statute is a question of great public importance,” the court ruled.
Judge Dorian Damoorgian dissented, saying Smith’s right to marry was made subject to the court approval “for his own protection.”
“The implication of the majority’s certified question is to allow a ward to be victimized and then have the court system unravel the mess,” he wrote.
Martinez Smith says she is just happy to have the man she married at home. Smith still can’t speak.
“We understand each other with our love. He is my light of my life every day,” she said. “We are just a normal couple who fell in love in our later years. This had nothing to do with money.”