Probate Court

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Index

About the probate process

Probate court rife with lapses in training, oversight by David Olinger

Confusion on yearly reports

Guardians' questionable decisions

Four years after the audit

Case one: "High HIV transmission risk" went untracked for years

Sister appointed guardian

Case two: Conservator's expense reports for woman in assisted living raised red flags

Case three: As guardian, brother expenses $60,491 in three years

Lapses in reporting

Collateral expense problem


 

About the probate process

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When a person becomes incapable of making financial decisions or other important decisions due to age, illness, accident, wounds, or for any other reason, a family member or a professional fiduciary can petition a probate judge to become a guardian or conservator. While there are many good-minded people who take on this responsibility for loved ones, there are far too many who do it for financial and personal gain from the assets of their ward. As illustrated here, the probate court offers little protection against such vultures. Then there are relatives and friends who are appointed as guardians or conservators who find the responsibility simply beyond their capabilities and the fate of their ward simply becomes a matter of chance.

A guardian is responsible for the ward's care, including housing, food and medical decisions. A conservator is responsible only for the assets of a protected person.

Without court approval, a professional cannot be both guardian and conservator in Colorado. Family members, however, can serve both roles.

Family members generally serve without a fee but are expected to keep records of out-of-pocket costs. Professional people, such as lawyers and accountants, may ordinarily charge their regular hourly rate only for services provided in their professional capacity. For example, an attorney may charge his or her regular billing rate for drafting legal documents but not for balancing a checkbook.

Colorado law generally requires guardians and conservators to file yearly reports on their activities. They can be removed as protectors if they fail to do so. If they misspend money, courts can require them to repay it.

The following stories deal primarily with abuses by relatives and friends of the incapacitated person. However, if the disabled individual has considerable assets it is not unusual to find the probate court has appointed a variety of parasites to "help" with the case. In such cases one finds the court may have appointed special masters, guardian ad litem (GAL), an attorney to "assist" the conservator, among others. These are often cronies or friends of the judge or magistrate. And stories abound of individuals injured in an accident, or temporarily incapacitated, who have recovered but find it impossible to remove these leeches and gain their lives back. Instead, they are kept as virtual prisoners by their court-appointed guardian in skilled nursing facilities or assisted living facilities. In turn these facilities collect exaggerated fees for their "care." This seems to be common with wounded veterans who have no close relatives to rescue them, or the relatives do not have the financial resources to take their case to court from reports to the Equal Justice Foundation.


 

Probate court rife with lapses in training, oversight by David Olinger

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© 2010 The Denver Post

Reproduced under the Fair Use exception of 17 USC § 107 for noncommercial, nonprofit, and educational use.

Who's protecting the unprotected?

February 21, 2010 — When retired librarian Jeanne Hamer needed help, the Denver probate court appointed a guardian who sold many of her belongings to himself and billed her hundreds of times for walking with her and reading poetry to her. And, as a protected person, she nearly starved to death.

A 50-year-old Denver man with early dementia and the AIDS virus engaged in unprotected sex while under a guardian's supervision. And after that, the Denver probate court heard nothing about him from his guardian for five years.

William Gostele and a female friend racked up $83,517 in expenses on behalf of his brother before the Denver probate court asked why a single, elderly man was paying for frequent plane flights and spending up to $1,300 a month for groceries.

Four years after a state audit found some Colorado guardians reported nothing about people they were appointed to protect, and that its courts inadequately reviewed reports that were filed, The Denver Post has learned that the state still cannot say how many of its most vulnerable residents are being protected in accordance with the law.

A review of Denver probate court records found that some clearly are not.

• Despite a state law requiring each guardian of a ward's health and each conservator of a protected person's finances to file detailed yearly reports, many guardians reported nothing for five years.

• Expense reports showing a guardian kept ignoring a court order were not questioned for four years.

• The roster of wards currently protected by the courts includes people who have been dead for years.

• The state court system cannot tell how many guardians are informing judges about the people they're protecting because reporting methods vary from court to court.

• The probate system lacks standards and training for family members appointed to protect people no longer capable of making important decisions for themselves.

Jean Stewart, Denver's probate court judge for nearly 15 years, commends her staff, saying they have shown remarkable dedication to people protected in 1,744 probate cases. Overall, "I think this is an extraordinary court," she said.

But she also described the court's capacity to monitor guardians and conservators as well short of ideal, partly because her staff has been cut by 25 percent in the four years since the audit.

"It was great that the audit got done. Sadly, it also came along at the very beginning of this budget crisis," she said. After telling courts what resources were needed, legislators added, "unfortunately, we can't fund any of the positions we give you."

State law allows her to waive yearly reporting requirements in some cases, and "I'm waiving them more than I used to," she said, because she knows she won't have the staff to review them all.

The cases of Hamer, Gostele and the HIV-positive ward were brought to the court's attention by Caroline Cammack, an employee responsible for tasks ranging from customer service and scheduling to helping the judge manage cases. She was fired last year in a dispute over her job duties and performance.

Cammack said her most important job was reviewing guardian and conservator records for potential problems, and that she was hired to do that after the audit. Before she left, she said she found hundreds of court-appointed guardians had neglected to provide legally required information about the people they were appointed to protect, in some cases for five years or more.

"For years and years, the incapacitated have been neglected. That's the bottom line," she said.

Since the audit, the state court administrator's office, which oversees Colorado courts, has submitted two reports detailing its plans to improve monitoring of guardians and conservators. But, four years later, it still cannot say how many reports are being filed in accordance with state law. And state auditors haven't been back to check.

Confusion on yearly reports

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A Denver Post review of probate records in Denver found many of the required yearly reports are still missing.

Last year, for example, Robert Wright was notified that he had filed no reports on his mother's care since 2005 and that he could be removed as her guardian.

She had died in 2006. "At the time, I just let it go," he said. "If someone had followed up with a call, I would have asked, 'Why has it taken you so long? Does it really matter now?' "

In 2002, the Denver court appointed Isaias Nieto Jr. to guard the welfare of his elderly father, Isaias Nieto Sr. Court records show there was an immediate conflict over a female friend's attempts to visit the father, and that the son filed his first and only guardian report late.

The court never located father or son again. In April 2009, it did send a warning to Isaias Nieto Jr. to appear in court and explain his failure to file guardian reports or face possible arrest. Its citation was returned to sender with a note, "Does not live here please."

Located by The Post, Isaias Nieto Jr. said his father died June 16, 2004, in a nursing home.

Sharon Stinson, a registered nurse in Colorado Springs, said she tried to file the required guardian reports every year since her son Jeffrey was stabbed in the aorta eight years ago. The assault nearly killed him. His heart stopped, which damaged his brain and left him tube-fed and breathing with a respirator ever since.

Year after year as his guardian, "I kept calling in and saying, 'Do I need to send anything in?'" Stinson said.

She said the Denver court repeatedly assured her, "Oh, no no no, everything's fine, we'll let you know. If everything is the same, don't worry about it."

"And then all of a sudden I got a report, you've failed to file in five years, blah blah blah," she said. "You haven't let us know anything about your son. You'd better file a report or we're going to cancel your guardianship."

In another court, the attacker who left her son unable to speak, breathe or eat negotiated a 17-month prison sentence.

By now, "I don't have much faith in the court system, I'll tell you," Stinson said. "I don't know if our guardianship is legal or not, because I never heard anything after I sent in the paperwork."

Guardians' questionable decisions

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Courts have often been criticized for appointing professional guardians and conservators who charge hefty fees for services to incapacitated adults.

But in the cases examined by The Post, family members and friends were the court-appointed protectors who made questionable financial and medical decisions on behalf of their wards.

Jeanne Hamer, the retired librarian, granted a medical power of attorney in 1990 to an old friend and former employee, Robert Shaklee.

In 1999, the Denver court approved him as the conservator of her assets. He put her in an assisted-living facility two years later and, despite objections from relatives and one of her best friends, he also became the court-appointed guardian of her care.

In 2002, the court ordered Shaklee to sell the house Hamer no longer occupied. For the next four years, he billed her for hundreds of visits where he took her for walks and read poetry to her. He also continued to charge her for picking up mail at her empty house, for watering her lawn and shoveling her walk. He wrote checks for utilities, property taxes and insurance.

Nobody asked why until November 2006, when Cammack looked at his expense reports and found all the house-related payments for a ward in an assisted-living home.

After the court learned that Shaklee had also sold many of Hamer's belongings to himself, Stewart removed him as conservator.

In late 2007, a new issue erupted over his guardianship. Hamer was no longer able to feed herself. Shaklee and a doctor treating her opposed what they regarded as force- feeding liquid nutritional supplements in violation of her living will. Her weight had plunged to 69 pounds.

"She was just getting skinnier and skinnier and skinnier," said Byron Hamer, the son of one of Hamer's cousins. Family members wanted the court to "do everything you can to give her some nutrition," he said. "Bob was absolutely against that. He didn't want to do anything to keep her going."

Stephanie Conrardy, a registered nurse, examined Hamer and found her "very much alive and not actively dying." A failure to offer nutrition, she reported, would be "hastening her demise."

Conrardy prevailed, gaining court approval to give Hamer nutritional supplements and staff assistance to assure adequate feeding. By March 2008, Hamer had regained 20 pounds.

"This was not a woman who didn't know what was going on," said Paula Young, a lawyer appointed to investigate Hamer's care. "If you're dehydrated, that's not comfortable. If you're malnourished, that's not comfortable. If your skin is breaking down, that's not comfortable."

Shaklee still believes the court ignored his medical power of attorney, improperly allowing a nurse to examine her without his consent, and violated Hamer's living will.

"What happened to Jeanne in court is exactly what she didn't want. She was kept alive at all costs," he said. "The issue was whether you were going to treat her as a piece of beef to be fattened up or allowed to gracefully die."

Hamer died in December 2008. The battle over billings to her estate persisted another year. Young argued that her estate had been stripped of $137,000 in one year for litigation and other costs because of "wrongdoing and bad faith on the part of Robert Shaklee" and his attorney, and that they should repay the estate. Shaklee and his attorney, Louise Wells, petitioned for $46,268 in unpaid attorney's fees and expenses. The dispute was settled out of court four months ago.

George, the ward afflicted with the AIDS virus, had been diagnosed with an early dementia attributed to substance abuse, according to court records.

In 2001, the court appointed his sister as his guardian. Despite reports that he was having unprotected sex, the Denver court let more than five years elapse without a single report detailing his whereabouts and his condition.

When the court finally asked about him last year, his sister responded that she had placed him in a host home in west Denver. Her report didn't say when.

Cammack said she worries that a host home is not secure enough for an HIV-infected ward with a history of escaping from previous homes and having sex. "The fact of the matter is, this guy was wandering around for years. And we didn't know where he was or what he was doing," she said.

When James Gostele was diagnosed with dementia in 2001, he depended on his brother William in Illinois to protect his assets.

Five years passed before Cammack sent a letter demanding documentation of the $83,517 William Gostele had paid himself and a Littleton woman, reporting it all as expenses for James.

Many of those expenses paid for plane flights to Denver where Gostele visited his brother and the woman, Ginny Boss. They also paid for restaurant meals for William Gostele and Boss, who got married in November.

"During that period of time, in lieu of taking a fee, I kind of expensed my flights and travel. Which was questionable, I guess," Gostele said. "Maybe I assumed without asking for more direction what is acceptable and what is not acceptable as charges."

Gostele said he wishes Colorado probate courts would put family conservators through a training course, with advice on acceptable expenses and a class on filling out the forms.

Stewart, the judge, agrees that Colorado provides little guidance to family members who play a critical protection role for incapacitated relatives.

"It's a very serious need that we have — standards and training," she said.

She said probate courts have shifted to appointing family members as guardians and conservators in part because they were criticized for appointing professional fiduciaries who charged for their services.

People who need help with financial and medical decisions typically want a relative appointed, and often that's best, she said. But "we are sometimes appointing people who are flawed in their thinking and their behavior. There's maybe more family appointments than we should have."

Four years after the audit

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The 2006 audit of Colorado probate courts found that in 57 percent of the cases reviewed, guardians and conservators had failed to file at least one required report, and 17 percent had reported nothing about the people courts had appointed them to protect.

The auditors also found that five of six courts did not systematically follow up on missing reports, and when reports did get filed, court reviews sometimes "were insufficient to identify errors and inappropriate expenses."

These shortcomings were important, the auditors wrote, because "review of conservator and guardian reports is the only internal control the courts have to monitor the activities of these appointees, or to determine whether the protected individual has an ongoing need for continued guardianship."

Four years later, the state court administrator's office has revised report forms for fiduciaries, emphasized daily reviews of incoming reports and planned for a computer system to better track cases electronically. It also hired Sandie Franklin, a former magistrate in Denver's probate court, to serve as a statewide probate coordinator.

But the state office still cannot say how many guardians and conservators are filing required reports on time — or even how many cases the courts have statewide. Franklin tried — and concluded that no reliable conclusions could be drawn because different courts are using relevant codes differently.

She said the court administrator's office is working to fix that. Meanwhile, "it is my sense that many reports are getting filed because of the court's follow-up," she said. "I think we have many more reports in our hands than we used to have."

Some lawyers who appear in the probate courts agree. "I would say in the last five years there's been a real change," attorney Mona Goodwin said. "In the past there was very, very little surveillance of the guardian, and especially if they didn't have an attorney, there was nobody making sure they filed these reports."

In Denver's probate court, Stewart is less sanguine.

Four years later, "we're doing marginally better," she said. Her staff is depleted, money for a new guardian-tracking database has not arrived, and employees are still having to check cases and send reminder notices manually.

"It's just like a house of cards. Everything is tied to that doggone dollar," she said. "All of our aspirational goals get choked up."

Stewart declined to discuss the court's decision to fire Cammack, who contends she is a whistle-blower terminated one month after she started complaining about the court's failure to monitor a ward with the AIDS virus.

The court did provide Cammack's personnel file. It contains a positive evaluation signed in November 2008 that praised her integrity and commitment, "a quality employee by any standard." Four months later she was dismissed for a series of alleged offenses — among them, insubordination, refusing to meet with her supervisor and refusing a change of job duties.

Stewart said Cammack has not been replaced. Her duties, which included reviewing guardianship and conservator reports, are now being shared by the court's remaining employees.

 

Staff librarian Barbara Hudson contributed to this report.


 

Case one: "High HIV transmission risk" went untracked for years

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© 2010 The Denver Post

February 21, 2010 —George damaged his brain by sniffing paint and petroleum fumes and drinking too much alcohol, court records show. At the age of 50, he was diagnosed as suffering from early dementia.

It wasn't his only affliction. He also was infected with HIV, the virus that causes AIDS.

To protect his privacy, The Denver Post is not identifying George's full name. But probate court records show his disease and his behavior posed a potential public health threat.

He was living with his sister after a nursing home kicked him out for alleged sexual contact with a mentally retarded resident. A doctor treating him had "recommended that (he) receive long-term care in a nursing home setting because he was mobile and sexually active, and remained a high HIV transmission risk on a continuing basis, which posed a threat to the public," according to a memo in his file.

Sister appointed guardian

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The court appointed George's sister as his guardian in 2001, and she moved him to a nursing home.

Twice in 2003, reports to the court deemed him an inappropriate resident at the nursing home. The first noted that he "elopes from the facility and engages in substance abuse" and "has reported engaging in sexual encounters while eloping."

The second disclosed that three long-term care facilities had rejected him because of behaviors that "include sexually accosting other residents, stealing, eloping and allegedly having sexual encounters."

In November 2003, George's sister reported that he was still at the same nursing home, that he had stayed with her for two days at Thanksgiving and that "he goes to Central City, bingo and church" for social and spiritual activities.

Then she sent no more reports.

In February 2009, Caroline Cammack, a probate court employee, discovered that George's guardian was sending no information about an HIV-positive ward.

"In those five years, we never knew where George was or his condition," Cammack said. And when she asked why, she said another court employee responded, "We're not sure if this man is alive."

Contacted by the court, George's sister responded in March 2009 that she no longer wished to be his guardian, that she had placed him in a supervised home in west Denver and couldn't remember the last time she saw him.

"He's happy. He likes it."

In an interview, George's sister said she realizes the court received no information about him for years. "I was supposed to send in statements every year. I never did," she said.

Though she no longer sees him, fearing he would try to return home with her, she described him as happy and safe in his new home, with a woman who provides 24-hour care.

"He doesn't go anywhere. She's always with him. He does very well where he's at. He's happy. He likes it," she said. "He's even gained weight."

According to his file, George moved into his new home in 2006, three years after his guardian's most recent report.

George's caretaker said she could not discuss his case.

Jean Stewart, Denver's probate judge, said she cannot comment on cases before the court.

But a May 2009 report to the court praised the care provided in George's new home. A subsequent memo approved by the judge listed seven people and agencies, including his caretaker, now providing oversight and treatment.

"All factors indicate that this is a lower-risk case," the memo states, because George is supported "by so many appropriate and experienced entities and persons."

The memo does not indicate whether George can leave the house.


 

Case two: Conservator's expense reports for woman in assisted living raised red flags

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© 2010 The Denver Post

February 21, 2010 — As a Denver librarian, Jeanne Hamer was surrounded by friends. When a new library was built in 1982, nearly 200 of them gave her a surprise party there.

But in her retirement, Hamer grew more isolated from family and friends. Her only child, a daughter afflicted with a mental illness, died in 2000. After that, her closest relative was a cousin in Massachusetts.

She came to depend on an old friend and former library employee, Robert Shaklee. In 1990, she signed a form giving him power of attorney to make medical decisions. Nine years later he became her court-appointed conservator.

The turning point in her retirement came in 2001, when she wandered away from her south Denver home and was reported missing for three days.

After she was found, Shaklee took her to an assisted-living facility in Denver without explaining where she was going and placed her there, never to return home.

A court battle ensued, pitting Shaklee against Hamer's distant relatives, a close friend, a Denver lawyer and Hamer's ex-husband.

The friend, Barbara Dees, wrote that Hamer, an animal lover who bequeathed her assets to the Dumb Friends League, had been deprived of her cat and forbidden visitors for two weeks.

In November 2002, a court-approved settlement left Hamer in assisted living at Sunrise at Cherry Creek, enabled Shaklee to act as her guardian and conservator and ordered him to sell her house.

Four years passed before anyone at the court noticed that Shaklee had not sold Hamer's house. However, he had submitted detailed expense reports. For example:

In 2001, when Hamer was missing for three days, he had charged her $1,198 for his time, including $45 an hour to drive around looking for her and $104 a night to sleep at her house in case she showed up. After putting her in Sunrise, he had charged her $13 a day for three weeks to feed her cat.

Over the years, he paid himself hundreds of times for picking up her mail, visiting her, walking with her or reading to her. For more skilled services — taking her to a doctor or dentist, meeting with the Sunrise staff, discussing her with his lawyer, paying bills — he charged $45 an hour.

Nobody challenged any of these expenses until November 2006. That month, court employee Caroline Cammack noted the various house-related expenses for a ward in an assisted-living home — and labeled some conservator charges "ludicrous."

"Reading poetry to Jeanne and picking up Jeanne's mail, all these little things added up," Cammack said. "In sum, they were just outrageous."

Denver probate court Judge Jean Stewart appointed attorney Paula Young to investigate. Young reported that Shaklee had not only ignored a court order to sell Hamer's house but also had sold much of its contents to himself — and concealed that from the court.

She visited Hamer's house for the first time in 2007 and reported being "stunned to find the home in such deplorable condition, especially since Mr. Shaklee had gone to the home at least weekly" and billed her estate for this service.

"I have never seen such blatant disregard of court orders," she said in an interview.

In a sometimes tearful interview, Shaklee denounced his critics and defended his care of a woman he had admired since he went to work for her library as a high school student.

"Anything I did was for her," he said.

Shaklee said his rates for helping Hamer were a fraction of the $125 per hour he charges as a computer consultant, and that a retired accountant who volunteered at the probate court had commended his expense reports in 2004.

He said he did not sell Hamer's house because its value kept growing, that he purchased her possessions at or above appraised prices — and that he saved her estate hundreds of thousands of dollars by preventing a lapse in her long-term health insurance.

Stewart removed Shaklee as Hamer's conservator in 2007 and as her guardian in 2008. Hamer died four months later, but the battle over her estate stretched to last fall.

Shaklee contends that the judge wronged him and turned control of Hamer's life over to people who never knew her.

"Judge Stewart does not like the law, does not understand the law and puts her personal preferences above the law," he said.


 

Case three: As guardian, brother expenses $60,491 in three years

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© 2010 The Denver Post

February 21, 2010 — Nine years ago, James Gostele needed help from the Denver probate court.

He had been diagnosed as suffering from dementia and was recovering from a month-long hospitalization that left him with an unpaid $197,000 bill.

A brother in Illinois was willing to assist him. The court approved William Gostele as the guardian of James' health and conservator of his assets.

In that role, Gostele successfully negotiated a reduction of the hospital bill and paid it by refinancing his brother's house. But probate records also show a pattern of late and missing reports that persisted for five years before anyone questioned how James' money was being spent.

And after the court discovered in 2006 that much of $83,517 in expenses had paid for Gostele's flights to Colorado and reimbursements to a woman he would marry, it neglected again to collect his expense reports.

Lapses in reporting

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In a review of Gostele case records this month, The Denver Post found that guardian reports were filed, but the court had received no account of conservator expenses for James Gostele since September 2007. After questions from The Post, the court requested and received those last week.

Gostele's first conservator report in 2002, a one-page sheet of expenses, listed seven checks to himself for $12,518 and 13 checks for $4,596 to Ginny Boss, a woman in Littleton, all labeled "reimbursement for James."

His second listed checks totaling $15,175.04 to himself and checks totaling $9,416.54 to Boss, whom he described as "assistant to conservator." Then Gostele stopped filing expense reports.

It took until the summer of 2006 before Denver probate court Judge Jean Stewart ordered him to appear and explain his failure to comply with court orders.

William Gostele then reported 75 cash disbursements totaling $60,491 in three years for undocumented expenses. When the court required details, it learned that many expenses stemmed from his visits from Chicago — visits in which he met Boss at the airport and dined at his brother's expense.

The judge appointed a lawyer, John Berman, to investigate.

Berman reported that William Gostele had done a commendable job of renovating his brother's house during visits from Illinois. But he also found that Gostele had flown from Chicago 19 weekends in the first half of 2006 alone, and that four times in 2004, Gostele had not flown alone.

Collateral expense problem

Gostele's visits "are to be encouraged (even if the primary focus of the visit may not be Jim Gostele but Ginny Boss)," Berman wrote. "The problem is the collateral expenses. Although small individually, their collective impact is notable. They include parking fees, snacks, toll roads, gas for Ms. Boss' car and, most meaningfully, dining out for Mr. William Gostele and Ms. Boss."

He proposed limiting Gostele's conservator expenses to $500 a month or finding a local fiduciary to handle James' estate.

Stewart agreed to limit the expenses. She also required frequent guardian reports, letting Gostele and Boss serve as co-guardians with supervision. But after September 2007, no expense reports were filed with the court until last week.

William Gostele said, "There's no way in the world that we had any intention of doing anything incorrect to my brother and his estate."

He said he met Boss on a plane during one of his visits to his brother. She was a painter, and James needed his house painted. Over the years, he said, Boss helped take care of his brother while he was in Illinois.

"I spent quite a bit of time checking up on Jim and going over to visit him," Boss said, and never charged fees for her time.

Gostele and Boss were married in November.

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Added April 19, 2010

Last modified 10/7/16