Palm Beach County guardian case: Will living will be honored?

Col. J. Alan Smith no longer can talk or walk. The 83-year-old former Boynton Beach resident is said to be in the throes of Stage 4 dementia.

But when he still had his faculties in October 2009, Smith – who worked for 30 years for the U.S. Army Corps of Engineers – said he wanted his then-girlfriend, Glenda Martinez-Smith, to be his health-care surrogate and to handle all his affairs through a durable power of attorney.

And the 4th District Court of Appeal agreed in a precedent-setting ruling on March 18, ousting professional court-appointed guardian John Cramer, saying Smith’s pre-need directives should have been considered a priority.

But despite the appeals court ruling — the fourth reversal in the case — Palm Beach County Circuit Judge David French says he must hold an evidentiary hearing to consider whether to appoint a new professional guardian to control the money that pays for his medical care.

At issue is how Americans will treat their growing elderly population. Will their living wills and advance directives be followed or will lawyers at the behest of family members be able to do what critics call “downspend” their assets to nothing?

French set a hearing for Wednesday in what Martinez-Smith’s attorneys say should be a ministerial decision to adopt the opinion removing Cramer and appointing Martinez-Smith, now Smith’s wife.

This all plays out as court-appointed guardianship in Florida is under the microscope. The Palm Beach Post wrote about Smith’s guardianship and the problems plaguing the system in an investigation last month. Recently, the state legislature took steps to strengthen accountability for court-appointed guardians in a measure sent to the governor.

Dr. Sam Sugar of Aventura, co-founder of Americans Against Abusive Probate Guardianships, the grass-roots group behind the legislation, said the guardianship system originally designed to protect vulnerable elders has been perverted to benefit professional guardians and attorneys who control it.

“Their lucre is so enormous — billions of dollars a year in diverted Social Security payments in Florida alone,” Sugar said. “Once declared a ward, you are owned by and at the mercy of the guardianship machine, and life as you knew it is over for you and your loved ones.”

J. Alan Smith’s assets were once estimated in court documents at $425,000, but after his divorce and fees for guardians and lawyers, Martinez-Smith said it is now around $80,000.

And so much of Smith’s assets have been depleted fighting his advance directives, said Martinez-Smith’s appellate attorney Jennifer Carroll.

“I’m afraid Alan’s wishes once again are being ignored,” she said. “It’s a constant battle and it shouldn’t be. Why does it have to be this complicated?”

Cramer wants to resign, but his attorney, Ellen Morris of Boca Raton, earlier this month told French the appellate decision isn’t clear that Martinez-Smith should be in control of the ward’s assets. She said he needs to decide whether a new professional guardian should be appointed to replace Cramer for this task.

“There was no advance directive put forth as for a guardian of the property,” Morris said. “I think the 4th’s mandate is clear as to the health-care surrogate. But as to the guardian of property, I don’t think it is as clear.”

Cramer – a prolific guardian in Palm Beach County — made $95 an hour on the Smith case. Morris, for her work representing Cramer, charged Smith much more: $350 per hour, according to court documents.

Morris said she and Cramer have been awarded $143,000 in fees in the case and are requesting $14,113 more at present.

Morris is quick to point out that Carroll has said in a pleading to the 4th DCA that her fees have accrued in excess of $76,000. None of Martinez-Smith’s current attorneys — including trial counsel Gary Kovacs — have sought money yet from Smith’s assets. They say they have been paid by Martinez-Smith and said they are not certain what they will request from the court, if anything.

In the meantime, Morris can still generate fees from the case by simply having to appear in court by floating an issue about the appellate decision.

West Palm Beach appellate law specialist Bard D. Rockenbach said indeed the enforcement of an appellate mandate, such as the one issued in the Smith case, is a ministerial matter. However, the appellate court’s intent is not always so clear for the judge, though.

“What the trial court is required to do is limited by the opinion. That sometimes means the trial judge has to interpret the opinion and apply it to the case,” he said.

The legal battle between Morris and Martinez-Smith is contentious.

Morris, the attorney representing Cramer, persuaded French to annul Smith’s Dec. 28, 2011 marriage — a decision which is under appeal, the fifth in the case.

Smith’s daughter, Gwen Smith, said at the May 6 hearing that she believes Cramer took good care of her father as the court-appointed guardian and that Martinez-Smith has acted unscrupulously and is interested only in her father’s money.

Martinez-Smith, 71, claims that under Cramer’s care, her husband condition deteriorated. Since the appellate decision, she has removed him from the nursing home to the hospital with plans to move him back to her Miami home.

She met Smith on a senior citizens dating site in 2009.

She said she has hired an accountant to run Smith’s financial affairs.

Carroll, her attorney, said it is incumbent upon French to enforce the appellate court’s mandate. She said she doesn’t understand Morris’ continued concern in the case since her client — the ousted guardian Cramer — has told the court he wants to resign.

“It seems to have become personal with her,” Carroll said after a May 6 hearing where she asked the mandate be enforced. “I do not think a professional guardian is supposed be advocating for a particular family member. They should be independent and objective.”

Morris denies she has any stake anymore, but it was she who brought up to French the issue of appointing a new financial guardian. Morris says she will not represent any other guardian who would be appointed.

French – who has overseen the Smith case for more than a year — appeared to agree with Morris that the 4th DCA opinion does not designate a guardian for Smith’s financial needs. He said an evidentiary hearing was needed to allow him to research matters, including Smith’s pre-need directives.

As a result, French refused to accept Cramer’s resignation without further proceedings. “There are many issues that need to be resolved,” he said.

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