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Guardians often profit at expense of the ill

Elsie Jablonsky, 82, went to the hospital to heal after she fell and lay stranded on her kitchenfloor for two days with no food or water.

To Jablonsky's horror, the hospital turned her over to a professional guardian -- who froze herbank accounts, used her charge card for shopping sprees and terrorized her, according to Jablonskyand public records.

"I had to change the locks on my house, I was so afraid of her," said Jablonsky, of Margate,a spirited retired bookkeeper who won a court fight to escape her guardian. "The hospital did thewrong thing by me."

South Florida hospitals each year hand over hundreds of unsuspecting elderly patients toprofessional guardians, who make a living having elderly people declared incompetent and runningtheir lives for a fee of $30 to $75 per hour.

Eager to discharge patients quickly once they can no longer bill an insurer for their care --but fearful of sending weak or confused people home alone -- hospitals turn to professionalguardians to sign patients out, typically to nursing homes or boarding houses.

The practice is so common, especially in Broward, that elderly people without close relativeswho land in the hospital are in danger of losing all their legal rights and never going home again.

Several hospitals in Broward and Dade actually pay guardians or lawyers at least $1,200 ahead to initiate guardianship proceedings for their patients.

"That's amazing, to put it mildly," said Frank Repensek, executive director of theGuardianship Program of Dade County, a nonprofit corporation that provides guardianship services forpoor people and never accepts payment from hospitals for its services. "In my view, there's anenormous conflict of interest in that."

Two public hospitals in north Broward have contracts with a large guardianship company. Theypay the company up to $1,800 for taking on each poor patient and -- as an added incentive -- promiseto refer patients who have money.

The patients who have cash or own homes that can be sold end up paying the guardian company$41.50 an hour -- indefinitely -- to visit, run errands, pay bills and oversee their care whetherthey want a guardian or not.

"I don't like to look at it in terms of the patient losing rights," said Lynn FutchCooney, attorney for the North Broward Hospital District. "In our terms, it's more a patient gainingbenefits. . . . We're trying to provide for that patient the best care possible when there is no oneelse to do it.

"I don't see a conflict at all."

To be sure, guardianship may be the bestalternative for some patients, such as a comatose man or woman who has no relatives to consent tomedical care or make life choices. And some hospitals resort to guardianship only in extreme cases.

"It's always been something we've avoided at all costs," said Jill Lenney, director of socialwork at Jackson Memorial Hospital in Miami, which never pays professional guardians to placepatients and has a rigorous medical review process to ensure that no patient is plunged into anunneeded guardianship.

But the financial interests of some hospitals and guardians are being placed ahead ofelderly patients' rights and well-being, according to a review of hundreds of court records andinterviews with South Florida hospital officials and guardianship experts:

* Nearly 20 percent of elderly people in Broward who are thrust into a guardianshipproceeding from a hospital bed die within 34 days, before they ever make it to court for a hearingto determine whether they are competent to run their own lives.

This death rate appears far higher than in Dade, where it's tougher to rush someone into aguardianship without a long court proceeding. The disparity suggests that some Broward patients maybe discharged, or readied for discharge, before they are well enough to leave the hospital.

* Elderly people who may be temporarily disoriented after an illness or accident aresometimes stripped of their rights and rushed into life-changing guardianships even though they donot meet the legal definition of incapacitation.

* Men and women compelled to pay guardians $30 to $75 an hour -- bills they have lost theirlegal right to fight -- could, in some cases, manage their own lives if they had the help of an aidepaid just $80 per day.

* Social workers and other relatively untrained discharge planners, not doctors, decide tocall in guardians at some hospitals. Jablonsky's doctor of 12 years, for example, did not know shehad a guardian following her hospital stay last year until she told him, he said.

* Some elderly people receive deplorable treatment after they leave the hospital with aguardian. State elder abuse watchdogs found a former Broward General Medical Center patient tied toa chair with a sheet in a Fort Lauderdale boarding home just weeks after the hospital paid aguardian company $1,800 to initiate guardianship and help place him in an appropriate facility.

* Patient confidentiality is violated routinely. Without the consent of their elderlypatients, hospitals provide information about their medical problems to guardians. The guardians usethat knowledge in court to have the patient declared incapacitated, stripped of rights and placed intheir care.

"(The hospitals) have made patsies out of us," said Broward Circuit Judge Jack Musselman,who as a probate judge is responsible for approving and overseeing guardianships. "They have found away to dump their problems on us."

James A. Pearson, an experienced guardianship attorney, once saw little wrong with hospitalspaying guardians to come into their patients' lives uninvited but is now disturbed by the practice.

"After a while, I began saying, 'Isn't there a bit of a stink rising when it becomes anindustry?' " Pearson said.

The industry works like this:

Professional guardians make a living by askingjudges to declare elderly or disabled people incapacitated and to place them in their care.

Under state law, professional guardians are not licensed or regulated. Almost anyone over 18can become one.

Once individual guardians or guardian companies win control of elderly persons, they can paythemselves handsomely -- up to $41.50 an hour in Broward and $75 an hour in Dade -- from the elderlyperson's bank accounts with court approval.

One of the tougher aspects of the job, many guardians say, is finding new customers, elderlypeople in decline.

South Florida hospitals have an endless supply.

On the day in August that professional guardianJacinth Preston was arrested and charged with grand theft, forgery and credit card fraud, she wasscheduled to give a seminar on the rules and regulations of guardianship for the case managers ofNorthwest Regional Hospital in Margate.

"We've used her for several years," hospital spokeswoman Renee Gould said. "She has been veryprofessional and more than satisfactory."

A former flight attendant and lingerie importer, Preston, 35, built a private guardianshipbusiness partly on referrals from Northwest Regional. Six of the 19 elderly people under her care,including Jablonsky, were Northwest Regional patients, Gould said.

Two weeks ago, Preston pleaded guilty to eight felonies for stealing from two of thosepatients: Jablonsky, a retired bookkeeper, and Morris Kline, 80, a printer who retired to Floridafrom Brooklyn, then suffered a stroke.

Preston won legal control of her elderly victims by vowing to take care of them, then usedtheir credit cards to shop for herself. Three weeks after Kline died, she used his Sears charge cardto buy a dishwasher and have it installed in her Sunrise home.

Preston tried to take guardianship of Kline's mildly retarded adult son as well andthreatened to institutionalize him, relatives said. She ran up about $10,000 in guardianship andlegal fees for father and son in a few months. Kline's relatives blame a Northwest Regional socialworker for bringing Preston into their lives over their protests.

"I'm so bitter at that woman," said Abe Hecker, Kline's brother-in-law, who lives in NewYork. "She has no idea what havoc and pain and anguish she has created by her actions."

Gould, of Northwest Regional, said she could not discuss individual patients because ofconfidentiality.

A review of all guardianship cases filed in the first two months of 1993 in Broward showsthat more than 40 percent of the men and women who underwent incapacity proceedings were in ahospital when the process began. Typically, a hospital social worker contacted professionalguardians and told them about patients' medical problems, court records indicate.

Nearly 20 percent of those Broward hospital patients died before their incapacityhearings, scheduled so a court hearing officer could determine whether patients could take care ofthemselves or needed permanent guardians.

Similar countywide information for Dade is unavailable because of the manner in whichMetro-Dade maintains its guardianship records.

Jackson Memorial, the only public hospital in Dade, does keep records that allow comparison.Jackson initiated guardianship proceedings for 27 patients last year. None died before a judge ruledon whether they were competent, hospital records show.

Broward court officials expressed concern at the high death rate in Broward and said theycould offer no explanation other than that the patients were old and had health problems.

But Marlene Pinsky, a county attorney who handles guardianships for Jackson Memorial, saidshe knows why the hospital's patients are not dying before their court hearings. Jackson Memorial,she said, does not try to discharge patients so ill that they are in danger of dying before anincapacity hearing. "If they are that acute, we keep them, and we keep treating them," she said. One of the largest private guardianship companies in the state, South Florida GuardianshipProgram, works primarily with men and women coming out of hospitals.

The private, nonprofit corporation has responsibility for more than 200 elderly or disabledpeople, and more than half came from hospital referrals, president Kathleen Phillips said. Lastyear, area hospitals and those elderly wards paid the company more than half a million dollars inguardianship fees, 1993 tax returns show.

Although critics contend that it's a conflict of interest for guardians to receive paymentsfrom hospitals, Phillips said she has no problem placing the needs of her elderly charges ahead of aclient hospital's financial concerns. South Florida Guardianship Program has fought hospitaldecisions to discharge patients the guardian deemed too ill to leave a hospital bed, she said.

"We would never compromise our integrity for the benefit of any individual or institution,"she said.

In fact, Phillips has grown wary of taking referrals from some private hospitals, where shesaid social workers try to push patients into guardianship who don't need it.

"They just want to dump their cases in our lap," she said. "We've been told there are norelatives, and then we get the hospital chart, and there are relatives. It's so much easier (for thehospitals) to work with us. Maybe the family isn't cooperating, and we're fast."

Turning elderly patients over to guardians has become increasingly common as insurerspressure hospitals to get patients out the door quickly to contain costs, said Sylvia Corulla,social work supervisor at Pembroke Pines Hospital, which sometimes hires Phillips' company.

"They just want them out," Corulla said. "Because a patient is confused, that doesn't meanthey can stay in the hospital. They will review it, and the patient becomes self-pay within 48hours. After 48 hours, they become our problem. We need to move quickly, and we need a guardian whocan move quickly with us."

In a typical case, Corulla said, the hospital pays South Florida Guardianship Program toinitiate guardianship proceedings and arrange for discharge of a badly confused patient to a nursinghome. Then the guardian takes responsibility for paying the home from the elderly person's assets,Corulla said. "That's a nice discharge plan," she said.

The financial arrangement with the guardian comes into play in more dramatic life-and-deathsituations as well. Recently, Pembroke Pines Hospital employees contacted South Florida GuardianshipProgram about becoming the guardian for an indigent man, 58, who had suffered a stroke and remainedin a coma. After 45 days, Medicaid stopped paying for the man's care, and the hospital began to losethousands of dollars, Corulla said.

The hospital expected South Florida Guardianship Program to go to court and win permissionfor doctors to turn off life support, Corulla said.

It never happened, because the man's son showed up from out of state, protested that hisfather was too young to die, and threatened to hire his own attorneys, Corulla said. The guardiancompany, after talking to the son, declined to seek guardianship, Phillips said.

The hospital now plans to transfer the man to a nursing home and pay his tab, an estimated$30,000 to $40,000 in the first 100 days, Corulla said.

She laments that the hospital was unable to hire the guardian for $1,800 instead. "It was areal bargain," she said.

South Floridians who don't want hospital employees and guardians to make life decisions forthem can designate a friend or relative as their "health care surrogate," empowered to makedecisions should they become too ill.

Otherwise, they check into a hospital and take their chances.

AtBroward General, social workers typically make the decision to contact a guardian. Only rarely doesa psychiatrist examine the patient first, said Christine Spratt, director of social work.

Jackson Memorial, by contrast, never initiates guardianship proceedings for a patient untilthree medical doctors, including a psychiatrist, examine the patient and conclude that extremeaction is warranted.

"It's just good practice," said Lenney, Jackson Memorial's head of social work. "I have avery skilled staff of social workers. They can tell how the patient appears to be. But are theygoing to be able to look at the chart and know that a head injury patient on this medication isgoing to be confused and if they stop taking the medication in a few weeks they may not be?"

Some hospitals initiate guardianship proceedings only when patients have no lucid moments,can't communicate and appear to have no idea of who or where they are.

"If they just have a bad memory, then they are not incapacitated," said Janet Caraglio,director of case management for Cedars Medical Center in Miami. "If they have periods when they areclear and maybe they just get confused at night, they are not incapacitated."

Others, however, seek guardianship for patients described as confused, uncooperative,unrealistic about their ability to care for themselves, vulnerable to potential financialexploitation or in need of "follow-up care in an appropriate facility," court records show.

Frank Murphy, a retired state transportation worker, was not incapacitated when ImperialPoint Medical Center in Fort Lauderdale helped place him in a guardianship in 1992.

He was just old and had a bad reaction to some medication, his friends said.

"When a guy is 79 or 80, and they say, 'How are you?', and he says, 'What?', then they say this guyis not doing too good," said the Rev. Robert Hanlon, a Roman Catholic priest and friend of Murphyfor 25 years. "But people who knew Frank for years like I did knew that he was hitting on allbuttons."

A judge agreed. One month after he left the hospital with a guardian, a judge revoked theemergency guardianship, ordered the guardian to return Murphy's assets immediately, and ruled thatthe way Murphy had been thrust into guardianship violated state law. Murphy was "not incapacitatedin any respect," court records said.

Many hospital officials say they trust the court system to sort out whether the patients theypropose for guardianship are actually capable of caring for themselves. They also say they are notresponsible for what happens to their patients after they call in a professional guardian.

"It's up to the court to hear the evidence and decide," said Leonard Freehof, associateadministrator of Hollywood Medical Center. "Obviously, we don't have a crystal ball, and we don'tknow when someone is going to become competent again."

Jablonsky said it didn't take a crystal ball to know that she was not incapacitated when shewent to Northwest Regional in January 1993. The arthritic widow was temporarily confused afterfalling and spending two days on her kitchen floor with no food or water, she said. "I wasdehydrated," Jablonsky told The Herald in September.

"There was nothing wrong with my head. It's my feet. I got arthritis, and you shouldn'tknow from that."

Northwest Regional asked Preston, the guardian, to arrange Jablonsky's care. Soon afterward,Preston visited the widow, dumped her purse upside down and confiscated her credit cards, accordingto Jablonsky and police records.

Preston then went shopping. While Jablonsky was in a nursing home, Preston ran up more than$800 in charges on her MasterCard and spent more than $300 in one day at a fancy women's shoe storein Coral Gables, according to Jablonsky and police records.

Jablonsky learned about the charges only because she insisted on moving back to her Margatehome, and one day her credit card company telephoned about an overdue bill. "I was shocked,"Jablonsky said. "She bought good stuff. I didn't spend that in a year, what she spent in a week.

"They ought to put that little witch behind bars."

Jablonsky hired an attorneyto help her fight guardianship. The attorney filed a court document saying Jablonsky's doctor of 12years found her physically and mentally competent.

An enraged Preston threatened and scared Jablonsky, the widow said. Having frozen her bankaccounts, Preston left Jablonsky home alone with no groceries and no way to buy herself food, courtrecords show.

"She was frightening me," Jablonsky said. "I asked her for some money for food. She told meshe couldn't give it to me because the judge told her not to give me any.

"All my bank accounts were tied up. She tied up my mail. She tied up my Social Security. Icouldn't get a red cent. This went on for two months."

Under pressure from Jablonsky's lawyer, Preston finally withdrew from the case.

Jablonsky regained control of her life, and Preston agreed to repay her for the more than $800 incharges she had run up on Jablonsky's MasterCard.

On Nov. 30, Broward Circuit Judge Paul L. Backman will sentence Preston for the eightfelonies. Under sentencing guidelines, she could serve up to 22 months in prison.

"I'm sharper than she is," Jablonsky said. "Why would a hospital think she was fit to takecare of anyone?"

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