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System overpowers elderly exams

Hundreds of elderly people in Broward have been rushed into legal guardianship before they've hadmental health exams or anyone has proven they can't take care of themselves -- an abuse of state lawand their constitutional rights.

"I didn't think this could happen in America," said Hildegard Rothman, 86, a German immigrant whocollapsed at a Hollywood hospital in December 1992 while visiting her dying husband.

Rothman was hustled into guardianship from her hospital bed without first being allowed toappear in court and defend herself -- a right extended to every accused criminal.

"I didn't go through what I went through at the war time, with the Nazis coming to get myhusband, to put up with that," said Rothman, who protested the guardianship, was found competent andset free last year.

Broward judges have routinely granted professional guardians and their attorneys instantcontrol over old people through "emergency temporary guardianship," a provision of state law rarelyused in Dade and other counties.

The majority of long-term guardianships initiated in Broward in 1992 and 1993 began withemergency guardianship. Almost every guardian who asked for an emergency guardianship last yearreceived it, frequently on the same day, records show.

As a result:

* Elderly men and women have routinely lost their rights before theyrealized anyone was trying to take them away.

* Protections that legislators intended to give almost every elderly or disabled SouthFloridian facing guardianship have been skirted.

* People like Rothman, found competent when they finally have their day in court, have lostcontrol of their life and money for months even though they didn't meet the legal requirements forguardianship.

Ray Licker was so humiliated after Broward General Medical Center thrust him into anemergency guardianship following hip surgery last year, at age 91, that he forbid his girlfriend toutter the word "guardian" in his presence.

Licker, a retired jeweler, lost control of his life for five weeks, and only regained itafter a panel of mental health examiners unanimously said he was able to take care of himself andthe guardian backed off.

"It took a piece of his life," Rose Licker, who married him in August, said. "He became sofearful that this would happen again that I was constantly assuring him, 'It's OK, this will neverever happen to you again.' "

Mae Shurman, 81, a retired nurse and champion bridge player, lost her rights suddenly Aug.9 after her estranged daughter enlisted the help of a professional guardian and guardian attorney.

"This is so corrupt," said Shurman, of Coconut Creek, who was portrayed in court as anintelligent but troubled woman who doesn't get along with her husband or daughter.

Professional guardian Knyvett Lee and Lee's attorney, Todd Smith, sought control of Shurman'ssavings, an estimated $750,000 in stocks and bonds. A court hearing officer recommended that Shurmankeep control of her own money during her emergency guardianship. Still, the guardianship documentsSmith later handed a judge to sign, authorized Lee to seize Shurman's considerable assets.

Smith, when challenged in a later hearing, said that he accidentally presented the wrongpaperwork to the judge.

Once Lee had control over Shurman's life, she tried to put her in a psychiatric hospitalagainst her will. After Shurman spent a few hours in the hospital waiting area, the hospitalconcluded that she didn't meet the legal requirements for involuntary admission and sent her home.Meanwhile, though, her husband had been moved from their apartment, and no one would tell her wherehe was, Shurman testified under oath.

Three court-appointed mental health examiners eventually visited Shurman and split on whethershe needed a guardian.

In October, after Shurman spent two harrowing months in guardianship, she appeared in courtfor the first time and testified lucidly in her own defense.

General Master Kathleen Ireland, the hearing officer, concluded that Shurman didn't meet thelegal requirement for guardianship after all.

"This is all about money," an outraged Shurman said. "It's not about helping people, it'sabout taking their money."

Ireland, on her own initiative, has called a new hearing to determine whetherShurman's daughter acted in bad faith. Smith denies it. "There was absolutely no bad faith in this,"Smith said. 'It's only in her mind that it's about money."

Professional guardians make a living having elderly or disabled people declared incompetentand placed in their care for a fee of up to $41.50 an hour in Broward and up to $75 an hour in Dade.

Emergency guardianships proliferated in Broward as a growing number of professionalguardians scrambled for new clients.

Broward court officials say they are now so concerned about abuses of emergency temporaryguardianships -- ETG in court parlance -- that they are trying to grant fewer.

Last month, after The Herald reviewed computerized court records on emergency temporaryguardianships, a Broward court officer told a gathering of professional guardians that, from now on,they will have to take the standard, lengthier route to guardianship as is commonly done in othercounties.

"It's going to be, as it should have been all along, just for an emergency," said Barbara A.Goglio, the top attorney for the probate court in Broward.

State law prescribes a monthlong process by which elderly or disabled people who needassistance enter guardianship and are stripped of rights, such as the rights to vote, drive, handletheir money, determine where they live or pick their own friends.

First, three court-appointed mental health experts examine an alleged incapacitated personand offer an opinion on whether they are competent. Then a court officer presides at a hearing whereboth the guardian and the elderly person can testify. Finally, a judge rules on whether the oldperson is incompetent, and therefore needs a guardian.

State law offers one exception to this process. If an elderly person's mental well-being ortheir assets are in "imminent danger," a judge can grant a 60-day emergency temporary guardianship.

In Dade, judges granted about two emergency guardianships a month last year, typically indire circumstances, such as an elderly person's being too demented to consent to life-savingsurgery.

In Broward, by contrast, judges granted about 30 emergency guardianships a month in 1992 and1993.

"Broward and Dade are like night and day," said Carol Taylor, director of utilizationmanagement at Aventura Hospital and Medical Center in Dade, which sometimes pays guardians orattorneys in each county $1,200 to help discharge patients deemed unable to care for themselves.

"To tell you the truth, it seems easier for someone to get guardianship in Broward."

Emergency guardianships in Broward have become a convenience for a host of people other than theelderly people who end up in them.

State social workers, required by law to provide protective services to abused, neglected orexploited old people, instead frequently turn clients over to professional guardians.

Hospitals, eager to discharge frail elderly patients quickly once an insurer stops paying fortheir care, have done the same.

"It was a matter of people looking for a solution to their problems, and the ETG was thefirst thing they grabbed," said Gary Armstrong, past president of Broward's professional guardianassociation. "It was bad judgment. Unfortunately, the ETG has been inappropriately used."

Until May of last year, elderly people in Broward were often stripped of rights after aprofessional guardian had a private conversation with a judge, who then signed papers authorizingemergency guardianship. Elderly people lost control of their lives before getting a chance todissent and without having a court-appointed attorney to defend them -- a clear violation of statelaw.

Spurred by court officials who realized elderly people were hurt by the one-sidedprocedure, Chief Probate Judge W. Clayton Johnson ordered reforms.

General masters, court officers who hear testimony and make recommendations to judges, arenow available two days a week to field requests for emergency guardianships. A court-appointedattorney is present to represent the elderly or disabled people in question, although the lawyerdoesn't always meet his or her client first.

Abuses persist. In recent weeks, court officers have begun forcing some guardians, socialworkers and hospitals to exhaust alternatives to emergency guardianship. State law, for example,allows social workers to go to court and win authority to give people help even if they don't wantit.

Hospitals, instead of calling guardians, can help a patient's longtime friend become theirhealth-care proxy, legally entitled to make decisions for a confused person without stripping themof any rights.

"The major thrust will be making people prove that there are no less restrictive alternativesto guardianship," said Goglio, who works for Judge Johnson.

"That may mean making the hospital social workers come in and testify as to why can't thehospital do anything else. They are looking for the person who is starting the ball rolling to begintaking some liability for their decision."

In a court file documenting Rothman's fight to regain control of her life is a handwrittennote from a court official observing that the widow narrowly escaped becoming "another ETGfatality."

It is little comfort to Rothman that she won a battle she should never have had to fight.Losing control of her life even temporarily, especially as her husband of 50 years was dying, was ahorror, she said.

"I didn't know who to trust," Rothman said. "I was so afraid."

On a recentafternoon, Rothman sat in the living room of her Miramar home, a metal walker stood in front of herarmchair, a blanket covered her thin legs. Rothman pointed to a black-and- white photograph of herand her husband on the boat to America. They were tall and handsome then.

As young lovers fleeing Nazi Germany, the Rothmans risked their lives to save each other.Frederick Rothman, a Jew from Vienna, ventured through dangerous streets to find a doctor the nighthis wife miscarried, ending forever their hopes for children. Hildegard Rothman, a German Christian,faced down police who captured her husband, and miraculously, talked them into giving him back toher.

As an autumn afternoon waned and a private nurse prepared a dinner tray for her, Rothmanspoke about growing old, losing strength and trying to reconcile frailty with memories of theresilient couple in the old photo.

By December 1992, Frederick Rothman, gravely ill, fell daily. "I tried. I couldn't lift himup," Hildegard Rothman said. "I rolled him over and put a cover on him as good as I could."

He was admitted to Hollywood Medical Center and continued to fail. Overwhelmed, HildegardRothman collapsed with chest pains at her husband's bedside, and was hospitalized as well.

Still, she believed she would grow strong enough to take him home again and save him one lasttime. "I said I must get strong for him," she recalled. "I was going to put a bed in the living roomso he could look out the window."

Instead, the hospital called in a private nonprofit guardianship company, South FloridaGuardianship Program, which went to court and had both the Rothmans' rights removed before theyrealized there were legal actions pending against them, Hildegard Rothman said.

Frederick Rothman died 18 days later, leaving his widow to fight guardianship alone.

Her voice dropped to a whisper as she recounted her humiliation at having a stranger, aprofessional guardian, come into her life, uninvited, and take over.

"One day I went to the bank and I wanted to put more money in," Rothman said. "The lady . . .said to me, I can't take your money because you don't have an account any more. I thought she made ajoke.

"I said how do you mean I don't have an account because nobody told me they had closed thataccount. She said, 'I'm sorry. I can't tell you anything.' "

Kathleen Phillips, president of South Florida Guardianship Program, Inc., said that hercompany acted fairly and gave Rothman needed help, such as arranging her husband's funeral, payinghousehold bills, and hiring a part-time companion.

"We came in to protect her, that was our only goal," Phillips said. "I can't tell you she washappy. I don't know if I would want you to go into my bank accounts, to tell you the truth. But if Ineeded help, I'd want the help we gave her."

Rothman did not get a chance to tell her side in court until five weeks after she had lostthe right to run her own life. The widow's testimony convinced a court officer that she wasgrieving, not incompetent, and deserved her life back.

Still, Rothman insists that she is, after all, an ETG fatality. She will die without everfeeling safe again.

"I don't trust anyone anymore," she said. "I am lost."

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