New Jersey: Man released from guardianship; Guardian tells him his life savings is “all gone” plus his condo is in foreclosure and his possessions have been sold
TOMS RIVER, N.J. — A 75-year-old placed under the care of a public guardian after suffering a traumatic brain injury in a fall almost two years ago finally has won back his independence.
But Ken Schmidt’s savings and many of his assets are gone — sold off to pay for his assisted-living care, his guardian told him.
” ‘It’s all gone.’ That’s their classic answer: ‘I’m sorry, it’s all gone.’ And they won’t give me anything in writing,” Schmidt said in September. “Everything’s just disappeared.”
The state placed Schmidt, a retired insurance salesman, in a $5,000-a-month assisted-living facility more than a year ago. He had had many of his civil rights stripped away after he fell and hit his head in Jan. 30, 2012, on the sidewalk outside his home here. A judge declared him mentally incapacitated and ordered the state public guardian to take charge of his assets and medical care under New Jersey’s guardian laws.
But Schmidt said he fully recovered from his injuries in September 2012. The problem was getting the judgment of incapacity lifted; that happened Dec. 16.
In the meantime:
• His $65,000 in savings is gone.
• The townhouse that he owned mortgage free six miles from the assisted-living center is in foreclosure because of a reverse mortgage he previously had taken out.
• The property also has $5,960 lien against it for unpaid condominium maintenance fees.
• All of the utilities were turned off, presumably because of $1,700 in unpaid bills.
• Much of his furniture, his books and all his dishes and flatware are missing — sold off by the public guardian.
“This doesn’t seem fair. Not that anything in life is fair, but it’s sort of ridiculous,” Schmidt said during his first visit back home last week, shortly after discovering that his computer was gone, too.
“It’s unbelievable. I’ve spent my whole life building things up, and now I have to start over again — and this time with no money,” he said.
Despite the problems Schmidt is facing now, Helen C. Dodick, New Jersey’s acting public guardian, is satisfied that the state followed proper procedures for his care.
Although she wouldn’t address the specifics of Schmidt’s case, Dodick explained that her agency is constrained in what it can do by the limits of a ward’s assets.
In many cases, assets, if any exist, aren’t sufficient to cover all of the person’s debts, she said. Sometimes, it’s necessary to sell the person’s property to generate money for a person’s care.
In rare instances in which a legally incapacitated elderly person under the public guardian’s care makes a full recovery and is able to return home, the agency doesn’t use its own money to pay for things like housekeeping services, rent or mortgage assistance, or transportation aid, Dodick said.
However, in Schmidt’s case, the state has agreed to help with his transition for an additional 60 days by arranging medical care for a fast-growing skin cancer on his head, which Schmidt claims has gone unaddressed for months, and by reaching out to his bank to try to resolve the foreclosure issue.
“We basically step into the shoes of the individual, so whatever they come with, that’s what we have to work with,” Dodick said. “We step in and do what they can no longer do for themselves.”
The way Schmidt sees it, few people would want to be in his shoes now.
“I’m worse off than I was before,” he said.
A long road back
Schmidt, who was living alone at the time of his accident, doesn’t dispute that he initially needed a guardian to manage his affairs. But at some point — he said it was more than a year ago — he felt capable of taking care of himself again. Yet Schmidt said his pleas to return to a normal life fell on deaf ears.
“When I started getting my speech back (and) my memory, I started calling them, harassing them — and I really did harass them, but I’m not ashamed of it because they weren’t listening,” Schmidt said.
During the 600 days he spent under the public guardian’s care, Schmidt couldn’t vote, make financial or medical decisions for himself or even receive his own mail. Schmidt had a temporary guardian during the three months between his accident and the public guardian’s appointment.
The powers granted through a full, plenary guardianship like the one Schmidt had are so sweeping that it is regarded as a remedy of last resort. Other, less-restrictive alternatives include a durable power of attorney, a living will or a trust, elder law experts say.
In July, Schmidt, who is divorced and estranged from his two daughters, wrote to the Asbury Park Press, asking for help. The subsequent story and accompanying video caught the attention of Toms River lawyer Joseph J. LaCosta, who agreed after meeting Schmidt to take on his case for free.
“It’s an awful thing to have your freedom taken away from you. You can’t make your own decisions and you’re treated, essentially, like you’re not there,” said LaCosta of the law firm Carluccio, Leone, Dimon, Doyle & Sacks. “He was not the type of person who needed a guardian, in my view.”
However, not long after LaCosta got involved, Schmidt’s odyssey took another unexpected turn when he was transferred to Barnabas Behavioral Health Center, a Toms River psychiatric hospital.
Schmidt said the move came after he made an impulsive comment at the assisted-living facility where he was staying at the time, to the effect that if he couldn’t lead a normal life again he might as well kill himself.
“It was just an angry statement I made,” Schmidt said. “It was the frustration that made me do it.”
Though Schmidt underwent a battery of tests that showed he wasn’t suicidal and had no other psychological problems, he wound up staying at Barnabas for a month because the assisted-living facility wouldn’t take him back, LaCosta said.
“I suspect one or more people took offense to the fact that Ken insisted he wasn’t in need of a guardian. It rubbed some people the wrong way,” LaCosta said. “But sometimes, the squeaky wheel is the only one that gets the grease.”
The move to Barnabas turned out to be “a blessing in disguise” because Schmidt said the tests he took corroborated what he had been saying all along: There was nothing wrong with him.
But while he was there, his already shaky financial situation took a turn for the worse.
On Oct. 2, his condominium association filed the lien on his townhouse because of the unpaid maintenance fees. Three weeks later, the bank that sold Schmidt a reverse mortgage in 2005 filed a foreclosure notice. It’s common for such agreements to have a clause that allows the bank to foreclose if the owner doesn’t occupy the home for a period longer than six months, LaCosta said.
Schmidt had paid off his original mortgage years ago.
Home, at last
At the end of October, Schmidt was moved again, this time to an assisted-living facility 15 miles away in Point Pleasant Beach, N.J.
Schmidt said he was anxious for weeks leading up to his hearing in Ocean County Superior Court in Toms River. As it turned out, he had nothing to worry about, at least as far as the hearing was concerned.
The lawyer for the public guardian, Suzanne Dykes, didn’t contest Schmidt’s petition to have the guardianship dissolved.
“You have made your voice clear,” Judge John A. Peterson Jr. told Schmidt at the conclusion of the 20-minute hearing. “I offer you all the best, and congratulate you on your recovery.”
In addition to LaCosta, court-appointed attorney Joel Davies, also represented Schmidt and waived his fee. Schmidt said he is indebted to both men.
Schmidt doesn’t plan to move back into his townhouse until next week, when he hopes to have the utilities reconnected. His room at the assisted-living facility in Point Pleasant Beach is paid for through the end of December.
When Schmidt visited the townhouse last week, a neighbor caught sight of him in the parking lot and came rushing over to welcome him back.
“Ken, holy cow! How’ya feeling?” said Chris Pickens, who was surprised to see him again.
“I’m coming back in January,” Schmidt told him.
“Oh, that’s great!” Pickens said. “You defied the odds.”
As Schmidt moved through the home, pointing out the marks on the carpet where his couch, recliner, freezer and bookshelf used to be, he looked very much like somebody who has just been in the fight of his life.
To see him at that moment, with a ball cap covering the cancerous lump on his head, now at least an inch in height, you might think he had lost if you didn’t know better.
Yet Schmidt already has proven that he isn’t the type of person who gives up easily.
“I could move in here right now, honest to God, even the way it is if they get the water and electricity (on),” he said.
Though his savings are gone, Schmidt believes he can resume his simple lifestyle with the $2,100 in monthly income he receives from his pension and Social Security benefits. LaCosta also has encouraged him to reach out to the Ocean County Board of Social Services and local charities for help.
“Hey, I was determined to come back here, and I made it,” Schmidt said, “So I’m determined to get through this, too.”
