Pro bono? Not really.

In the wake of the Rebecca Fierle scandal, the guardianship industry has begun a campaign to rehabilitate its image.  That campaign has included the popular guardianship cliches about “free care” and “pro bono cases.” But what does the guardianship industry really mean by “free” and “pro bono”?  It turns out that in guardianship lingo, “free” and “pro bono” refer to discounted, not uncompensated, services.   The industry’s own documents tell us so.

The most revealing document to date is a slide presentation from this year’s National Guardianship Association (NGA) conference.   https://www.guardianship.org/wp-content/uploads/2019/09/HowtoBuildGuardianship_presentation.pdf. The presentation was by Erin Droll, Corridor Care Management, Local Office of the Iowa Public Guardian.  Now this writer needs to make it clear that none of the following is a personal attack on Ms. Droll.  I do not know a single person in Iowa and I do not have any evidence that Ms. Droll is anything other than an honest and hardworking guardian.  I will, however, demonstrate how ideas promulgated by the Ms Droll and the NGA can be hijacked by dishonest guardians.  I will also demonstrate how the use of doublespeak by members of the guardianship industry misleads the general public, and more importantly, the state legislators responsible for protecting the public.

Slide 24 of the conference presentation is most revealing.  The slide provides suggestions for acquiring wards.  Under the heading for “pro bono cases” Ms. Droll includes hospital patients, saying that they are usually destined for nursing homes and and that they provide “one good round of payment.”  I must compliment Ms. Droll on that last turn of phrase, as it gives a great acronym, OGROP, that can be used to describe the financial relationship between Rebecca Fierle and AdventHealth.  An Orange County comptroller report disclosed that Fierle received approximately $4 million in payments from AdventHealth for guardianship services which primarily involved finding follow on housing for hospitalized patients.  Fierle was guaranteed OGROP; if the ward was later discovered to have additional assets, then she could bill more.  But once the ward was safely warehoused in a nursing home, the effort Fierle needed to expend was minimal.  She, or one of her employees, only needed to put the ward’s bills on auto-pay and make a pro forma visit to the ward four times a year.  Because Fierle’s company had control of hundreds of wards during its years in business, it is likely that the employees simply made multiple visits to a single nursing home on one day.  And if the patient was Medicaid eligible, Fierle’s payment would not be zero.  The Florida Medicaid personal needs allowance for a nursing home patient is currently $130 per month, or $1560 per year.  The personal needs allowance is designed to provide a patient with items that can improve the patient’s quality of life—haircuts, clothing, vending machine snacks, etc.  In 2016, Ellen Morris, chair of the Elder Law Section of the Florida Bar, argued vociferously that guardians should be allowed to tap into the personal needs allowance for their own compensation—thank you to the Palm Beach Post for providing the following link to Morris’ letter with John Pacenti’s reporting on disgraced guardian Betsy Savitt.  https://www.documentcloud.org/documents/3172968-Morris-Florida-Bar-Response-to-Rules.html  To date, Florida allows guardians to pay themselves with a ward’s needs allowance.  Guardianship industry spokespersons are fond of painting a picture of the “unbriefended” ward who lacks an “advocate” to make medical decisions.  Let’s turn this picture around.  If you were a nursing home patient, would you choose to have $1560 a year to spend on your own comfort and dignity, while allowing your physicians (and your medical advance directive, if you have one) to determine whether or not you should have a DNR?  Or would you prefer to hand over $1560 a year to a guardian whose only “services” are an occasional visit and the power to act as your one person death panel?

Ms. Droll also mentions younger hospital patients with special needs trusts (SNTs) as potential OGROP pro bono candidates.  Depending on the wording of the trust, the guardian can either be paid directly from the trust distribution, or can be paid from government benefits received by the ward while applying the trust distribution towards the ward’s living expenses.  In this case, “pro bono” means that guardian is paid less than he or she might have liked, However, pro bono does not mean what the general public believes that it means.  It is generally poor form to quote Wikipedia.  But as a crowd sourced web site, Wikipedia gives a good indication of what the public understands the term “pro bono” to mean.  The Wikipedia definition is “professional work undertaken voluntarily and without payment.”  “Without payment” is quite  different from “one good round of payment followed by less money than a ‘professional’ wants.”

Here’s where the OGROP model breaks down.  If the ward lives longer than expected, then the guardian receives less money for a longer period of time.  Ms. Droll advises guardians not to “take everything” and to consider the age of the potential ward.  Ms. Droll, to her credit, does not mention the other pitfall in the OGROP model.  That pitfall was recognized by notorious guardian April Parks when she isolated Rudy and Rennie North from their daughter.  If family members are concerned about the quality of care received by their loved ones, they may complain to nursing home/assisted living facility management.  The facility will then contact the guardian and expend guardian time that may not be compensable if the ward’s money has already been spent. The OGROP model provides the perverse incentive for a dishonest guardian to isolate a ward from family members so that the guardian simply doesn’t have to deal with family complaints.  The NGA Second Position Statement Regarding “Right to Association” Legislation https://www.guardianship.org/wp-content/uploads/2018/01/Right-to-Association-Position-Statement-2-1-23-18.pdf cites Illinois Public Act 099-082 as a model statute.  The Illinois act allows family members whose loved ones have been unjustly isolated by a guardian to petition the court for visitation rights.  In touting Illinois statute, the NGA is insensitive to the plight of family members who might be hourly wage earners living paycheck to paycheck.  In order obtain the right to visit their loved ones, these wage earners would be forced to hire a lawyer, miss a day of work, and possibly even risk termination of their jobs.  In his book, The Divide: American Injustice in the Age of the Wealth Gap, Matt Taibbi describes how some of the working poor have pled guilty to frivolous or unjust charges simply because they couldn’t afford to miss a day of work.  If the working poor are unable to fight criminal misdemeanor charges because they need to eat, how are they going to fight a predatory guardian?  Somewhat inconsistently, the NGA does support the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPA) which prohibits guardians from restricting a ward’s association with family members for more than seven days in the absence of a court order.  Why didn’t the NGA cite the UGCOPA language in its position statement?

The OGROP model also provides the opportunity for a quid pro quo relationship between a guardian and a poor quality nursing home.  It has been widely reported that nursing homes often use guardians as bill collectors when patients fall behind on payments.   https://www.nytimes.com/2015/01/26/nyregion/to-collect-debts-nursing-home-seizing-control-over-patients.html  https://www.tabletmag.com/scroll/264932/guardians-from-hell. The nursing home can pay a guardian and a lawyer to initiate proceedings against a patient.  In return, the nursing home gets a patient whose guardian can’t complain about poor care without risking the loss of future OGROP wards.

Ms. Droll does not address what the guardianship industry calls a “delayed pro bono.”  A delayed pro bono works in a fashion similar to that of an OGROP pro bono.  However, the ward has assets at the onset of the guardianship.  These assets are spent down through legal and guardianship fees until they are depleted.  If the ward’s estate is initially substantial, attorney and guardian fees can reach hundreds of thousands, or even over one million dollars.  One example of stratospheric fees is provided by John Pacenti of the Palm Beach Post at this link:  https://www.palmbeachpost.com/news/jury-hits-lawyers-with-for-doing-senior-wrong-guardianship/6CnikAZ7x3K9z960lz09BN/  It is possible for a guardian to earn hundreds of thousands of dollars in a single case and then claim that she is working pro bono when all of the ward’s money has been spent.

So the next time you hear a guardian virtue signaling about his pro bono cases, ask him, “Do you mean that you have never been paid for anything you’ve done for the ward?  Or are you talking about OGROP or delayed pro bono cases?”  And even true pro bonos are not free.  They are paid for by the guardian’s other wards.  Increasing guardianship fees for wards with assets is de facto taxation to support guardianship of the indigent.  And we all know that taxation without representation is tyranny!

Reprinted with permission from the author