- By John Pacenti Palm Beach Post Staff Writer
For years, families of incapacitated seniors have watched in helpless horror as some professional guardians — and their cadre of aggressive attorneys — siphoned off their loved one’s life savings through fees and unnecessary litigation.
But in an administrative order handed down last month, Palm Beach County’s chief judge attempts to turn this world of rampant self-dealing inside out. At the same time, he addresses the substantive complaints against controversial professional guardian Elizabeth Savitt — the wife of Circuit Judge Martin Colin.
Chief Judge Jeffrey Colbath’s administrative order on Oct. 26 prohibits — through an application process — Savitt’s practice of taking thousands of dollars from incapacitated seniors as so-called retainers before getting approval from a judge.
The Palm Beach Post in its series, Guardianships: A Broken Trust, could find no other guardian save for Savitt who takes money before judicial approval. The chief judge said the stories contributed to his decision to overhaul the guardianship system.
Colbath’s overhaul comes as the state Legislature and the Florida Supreme Court act to address concerns about unethical guardians preying on seniors and other incapacitated adults. And it comes, as promised, after Colbath’s initial reforms in February following The Post’s series.
“The goal is to have a basic level of practice from the Palm Beach County professional guardians,” said Colbath in response to a set of written questions from The Post.
Taking out bad guardians
The damage a rogue professional guardian can do is heart-wrenching.
Families have told The Post how seniors were taken from their homes secretly by guardians and placed in assisted living facilities. There were cases where relatives of the senior were banned from seeing their loved ones under false pretenses. Guardians also got marriages annulled and persuaded the court to ignore long-established living wills.
The chief judge’s far-reaching order for the first time sets down a means to remove bad guardians from the court’s newly established registry.
“It is a standard policy in the circuit to have language in our applications/contracts which allow for the removal of the professional if there is a violation of a policy,” Colbath told The Post.
The order also addresses favoritism and conflict of interest and insists the profession give back to the community.
But much of the meat of Colbath’s reforms can be found on the new nine-page application guardians must complete if they want to get on the county registry.
It asks specifically if the guardian has any relationship through “blood, marriage, financial or occupational to any person or service providers in the guardianship arena or associated with any guardianship proceedings in Palm Beach County.”
After The Post found that the life savings of incapacitated seniors flowed in the home of Judge Colin via his wife’s guardianship work, the chief judge in February moved Colin out of the Probate & Guardianship Division. Colin then announced his retirement effective Dec. 31.
He also ordered all of Savitt’s cases transferred to the North County Courthouse out of concerns of favoritism outlined in The Post’s stories.
Colbath then commenced a study of guardianship in the county to consider how it could be improved. The reforms stem from that panel, the evolving rules for the new statewide Office of Public and Professional Guardian and stories by The Post, he said.
“The group looked at block billing and advance fees,” he said. “The group determined that uniformity and a standard of practice would make for a more efficient system.”
The application asks guardians if they ever filed for bankruptcy or been subject to a foreclosure action or default on a student loan and to explain.
Savitt was under a judgment of foreclosure for several months before she paid it off with $308,000 in cash, days before her home was to be auctioned in March 2015. In two of her guardianships, parties involved have questioned in court whether she paid off the mortgage with her wards’ money. No judge has decided whether those accusations are true.
Savitt still works as a professional guardian.
The judge’s wife responded to Colbath’s order in an email to The Post: “This new Administrative Order appears to be an effort to better the Professional Guardian system in Palm Beach County, which I applaud. Those of your frequent sources who readily complain about professional guardians and the courts will not be happy with the good intentions of this Order.”
Her attorney, Ellen Morris, could not be reached for comment, but the lawyer has vigorously defended the judge’s wife — including the taking of fees prior to judicial approval.
Under the order, professional guardians must annually apply for appointment to the registry and satisfy the requirements set by the state. They must agree to standards in the application, including billing procedures. And they must agree to accept a pro bono case each year, offering their services free of charge.
Attorney Mitchell Kitroser, who represents professional guardians, said the pro bono requirement is necessary because judges were struggling to find professional guardians who would take on cases where the incapacitated senior or adult had no assets. The new requirements are not a burden for his clients, he said.
“There may be a bad apple, but, by and large, professional guardians are good, decent honorable people earning a living doing a tough job,” he said. “Everything they do is scrutinized.”
Sharon Bock, Palm Beach County clerk & comptroller, echoed those sentiments but added, that “one bad guardian is one too many.”
Bock’s office, under the order, will maintain the registry and separate wheels of qualified guardians based on their specialized skills and education.
If families or parties can’t agree upon a professional guardian from the registry, the judge assigned the case will contact the clerk’s office, which will select the next name on the applicable wheel. Judges must make “necessary findings” if they reject any guardian who comes up on the wheel.
Edward Shipe, a guardianship attorney from Boca Raton, described Colbath’s move as “mostly positive.”
“It spreads out the appointment of cases, which is how it should be and should have been, and sets some standards on fees and conduct,” he said. “It is probably five to 10 years overdue, but good ideas can take strange directions in the implementation so I will hold my breath a while and watch it play out.”
Sam Sugar, the co-founder for Americans Against Abusive Probate Guardianship, wasn’t so optimistic, seeing similar reforms in other counties fail.
“The likelihood of guardians being removed for any actions whatsoever except in the absolute rarest situations is no different today than it was five years ago,” he said. “As long as judges choose the guardians and continue to protect them and themselves and the lawyers, guardians will always win and families and wards will always lose.”
Colbath’s administrative order includes a lengthy section about how a professional guardian may be removed from the registry. This can occur if the state suspends a guardian’s registration or if a judicial officer recommends a guardian’s removal. A guardian can also be booted from the registry if he or she refuses to accept a court’s pro bono assignment. Bock’s inspector general can also alert the chief judge a guardian needs to be removed.
Colbath now joins the state Legislature — which last session gave the state its first regulatory authority over guardians — and the Florida Supreme Court — which just established a work group to look at the issue.
They have grappled with the issue as reports of abuse escalate. Families trying to reign in rogue guardians find themselves targeted in court, often having to spend tens of thousands of dollars in order to extricate their loved ones from the clutches of these unethical professionals. It takes years of litigation.
Fernando Gutierrez, a board member for the Florida State Guardianship Association, said attorneys for guardians — who he calls the real fee generators — are not addressed by Colbath’s order.
Are they required to volunteer their services, as well, when guardians must perform pro bono work? What happens to these attorneys when a guardian is removed?
Colbath’s pro bono requirement caused Guiterrez the most concern.
“This order is an illegal injunction against private enterprise and a legal challenge would probably conclude the order non-enforceable,” he said.