Is system draining our seniors' assets?

The Charleston County Probate Court appointed a guardian and a conservator to take care of Virginia Manos in 2004 because of reports that the 89-year-old woman who lived alone couldn't take care of herself and might be exploited.

Over the next four years, until she died in July 2008, the court approved spending $150,000 of her available money on lawyer, guardian, conservator and court fees -- almost one out of every four dollars spent for her care.

Manos' case is not alone. It is among many in which the Probate Court, set up to protect incapacitated elderly people from neglect, abuse or financial exploitation, allows lawyers, guardians and conservators to profit off helpless elderly wards.

Ethel Hyde is one of those. The Probate Court appointed a guardian and conservator for her in 2008 because of concern that her son persuaded her to spend thousands of dollars in savings.

Over the next two years the court approved paying nearly $35,000 of her money, one out of every five dollars spent, for lawyer, guardian, conservator and court fees.

Eighty-five-year-old Lee Belle Murray also came under the court's protection in 2008. In her case, the court ruled that her daughter had not properly cared for her as dementia took its toll.

Over the next two years, the court approved spending more than $57,000 of her money to pay lawyer, guardian and court fees, which led to the court putting her house up for sale on Charleston's tony Wentworth Avenue.

These cases illustrate how the Charleston County Probate Court can turn on a financial faucet that helps drain the estates of the elderly brought to it for protection.

Most of these cases come to the court through the Elder Support office set up in 1986 by the city of Charleston. That office handled cases from throughout Charleston Country until earlier this year when the Charleston Police Department, which oversees it, restricted it to Charleston city cases. Other Charleston County jurisdictions have their own elder advocates, but records indicate that those tend to seek out family members to serve as guardians or conservators, dramatically reducing the financial drain on the estates.

Elisabeth Spencer, the lone investigator for Charleston's Elder Support, sees herself as a defender of vulnerable adults.

"I can't control legal fees. I can't control court fees," she said. "We are called because there is a vulnerable adult who is being exploited, or family members can't do the job themselves ... When it comes to my office, things are critical."

Indeed, records show that Elder Support and the Probate Court serve an important role safeguarding vulnerable people. Court files contain numerous cases in which Elder Support and the Probate Court rescued the elderly from dire circumstances, financial exploitation or both.

Take the case of Joy Bruml. In August, 2008, Adult Services found the mentally failing elderly woman living amid feces in her Dockside Condominium along Charleston's harbor. The condo was in foreclosure and had no electricity because she had neglected to pay bills. A Probate Court-appointed guardian moved Bruml to an assisted living facility, and a conservator sold her condo and got her finances in order.

Bruml's son, William Bruml, who lives in Ohio, said "I am extremely grateful" to Elder Services and the Probate Court. "They really did the right thing. I spent a lot of sleepless nights." When informed that fees for court-appointed lawyers, guardians and conservators had taken a nearly $20,000 bite out of his mother's money in one year, nearly one out of every four dollars spent caring for her, Bruml said "I'm comfortable with it." He said he may need to pay more attention to some of the fees charged, such as $100 an hour to take her for a ride to see spring flowers. But such activities are "a good thing for Mother ... Quite honestly, it's worth it."

While Bruml is pleased, case files reveal a court that has exercised little control over lawyer, guardian and other fees billed to estates of many of the elderly people under its protection.

This financial faucet came to light in a Post and Courier review of more than 120 Charleston County Probate Court cases. The newspaper focused on elderly incapacitated cases filed in 2008 because those are the most recent with detailed accountings of how money was spent over at least a year's span. The newspaper also sampled cases from other years.

The review reveals that:

--The financial drain on the estates occurs mainly when Charleston's Elder Support asks the Probate Court to protect the person. In some such cases, court-approved fees for attorneys, guardians and conservators help bleed an estate empty within a year or two.

--In many of these cases, more than one out of every five dollars spent from the elderly person's money went to lawyers, guardians, conservators and court fees. Take the case of Geraldine Peacock whose $99,000 estate included the sale of her modest house. She lost more than $22,000 to guardian fees alone in just one year, from April, 2009 to April, 2010, a drain of almost one out of every four dollars she possessed.

--When the Court appoints a family member as guardian, conservator or both, as happened in about two-thirds of the cases examined, the family member typically doesn't charge for work.

--Virtually all expenses are billed, with court approval, to the elderly person's estate. The estate even covers the cost of the attorney hired to represent the city's Elder Support advocate who asked the court to intervene in the first place. In one case alone, that attorney's fee reached more than $12,000.

--Guardians and some lawyers charge flat fee rates no matter the function they preform, whether legal, professional, clerical or personal. For example, one guardian charged $140 a hour to prepare his bill. Another guardian charged $100 an hour to take his elderly ward a birthday card and flowers.

--Even when the incapacitated elderly no longer have any money, other than monthly Social Security checks, as is the situation in the vast majority of cases, lawyers continue to bill for their services in some cases and be awarded fees by the court. Take the case of Angie Robertson. After the conservator notified the court in February this year that her estate was "nearly depleted," the court approved paying a lawyer's $200-an-hour bill of $2,173. The judge noted that the money could be withdrawn from the elderly woman's account "when available."

Family conflicts

Irvin G. Condon, chief judge of the Charleston County Probate Court, agreed that attorney and other fees can seem high in some cases. This typically happens as a result of family conflicts over the care and estate of an elderly relative, he said. Such conflict can result in extensive and expensive legal battles.

"Have you ever seen 'The War of the Roses'?" Condon asked, referring to the 1989 movie in which a couple ultimately kill each other in a divorce fight over a house. That's what some of these elderly cases can seem like when a family fights, he said.

Still, Condon said, reining in fees remains a goal of his court. He said he is not alone in the struggle to control fees yet maintain the quality of legal, financial and personal care for incapacitated adults. Probate courts across the state, where 46 different county probate courts have 46 different ways of doing things, and probate courts across the country also find themselves with similar problems.

Because the probate court does not deal with criminal cases, it functions similar to most civil courts in which the people who use the court pay the costs for lawyers and other professional fees. That's the way it is with incapacitated elderly cases, even though it is the court that takes control of the person's life and finances and appoints guardians and conservators.

Lawyer fees can get expensive in cases of family conflict, but The Post and Courier's review shows that guardian and conservator fees combined typically outstrip lawyer fees.

Some cases can create a financial feeding trough for attorneys and guardians.

The case of Lee Belle Murray stands out. At a recent hearing, five attorneys debated her future while their fee clocks ticked on. Three attorneys sat on one side of the courtroom, one each to represent Elder Support, the conservator and Lee Belle Murray. Also in the courtroom sat Murray's present and her former guardians, one of whom is a lawyer.

The five charge fees ranging from $75 an hour to $175 an hour. Over the day-long hearing, they could easily rack up combined fees in excess of $5,000 -- most of it billed to Murray's estate.

The hearing was called because Murray's daughter, Ellen, thought the Court overreacted in 2008 when it appointed a guardian for her mother.

Ellen Murray argued that the court had no real reason to remove her mother from her care. And she contended that the court-appointed guardian had unnecessarily taken her mother from her home and placed her in a costly nursing home where the guardian restricted her visits with her mother.

In a June 15 e-mail, the guardian told Ellen Murray, "You may visit once a week in my company for one hour."

Jane Orenstein, the guardian in the Murray case, said she removed Lee Belle Murray from her home at 215 Wentworth St. in Charleston's historic district because she felt the home with stairs was unsafe. She said she restricted Ellen's visits to one hour per week to allow her mother to adjust to the assisted living home.

Probate Judge Keith W. Kornahrens later ruled against Ellen

Murray. He said he found her "not trustworthy" for circumventing some rules set by guardians and thought she had "very limited insight into her mother's medical condition."

He also blamed her for the extensive lawyers' fees billed to her mother's estate. "The driving force of expenses is sitting right there," he said of her repeated court appeals to win guardianship of her mother.

Ellen Murray, who had medical and legal power of attorney for her mother, said the blame lies with the court for stripping her of her authority and appointing a guardian when none was needed. She said the court later ignored a mediator appointed by the court to try to work out an agreement. In a written order on Feb. 15, the mediator, Richard E. Fields, recommended that Ellen Murray replace the court- appointed guardian for 90 days after which the court would decide if she should be made permanent guardian.

Judge Condon said his court serves as part of a pilot program in which mediation is required in all contested guardian or conservator cases to reduce costs and hopefully reconcile families. However, he said, mediators' findings are not binding on the people involved and he overruled the mediator because of a lack of agreement among those people.

In less than two years, virtually all of Lee Belle Murray's liquid assets evaporated, half of it in attorney, guardian and court fees. In September, to get more money for her care, the Probate Court approved selling the only thing she had left -- her home.

"I just want to keep the family together, keep her with me, at her home with the people she loved. What's so wrong with that?" Ellen Murray said. "I love my mom, and she loves me. Isn't she best off with family?"

The power to do something

Condon won't comment on the Murray case, except to say that he also thinks that Ellen Murray must shoulder some of the responsibility for the level of lawyer fees charged to her mother.

Still, Condon has the authority to control many of the fees billed in his court. He didn't use that power until earlier this year after The Post and Courier began its review and questioned some of the charges. He then capped lawyer fees in elderly incapacitated cases at $200 per hour and guardian fees at $100 per hour. Attorney fees previously ranged as high as $270 per hour and guardian fees as high as $140 an hour.

The newspaper later questioned fees guardians charged for specific services, such as $100 an hour to take an elderly ward to the store and lunch, and to take a ward on a country drive. After that, Condon reduced professional guardian fees further and placed them on a scale of $45 per hour to a limit of $75 an hour based on experience and training, and $80 an hour for a professional guardian certified by the Center for Guardianship Certification. Condon noted that he might set individual professional guardian fees higher or lower at his discretion.

Condon said he's been concerned about fees for some time, and decided in October to further reduce the fees, not because of the newspaper's investigation but after seeing how successful the court in Tampa, Fla., had been in setting its graduated fee scale.

Determining fair compensation for guardians can be challenging. Condon said. "How do you bill for taking a 95-year-old incontinent senior, who has no one else, to lunch."

While Condon said he's been troubled by fees for a long time, The Post and Courier's review didn't find a single case, until after The Post and Courier began its inquiry, in which he, or any other Charleston County Probate Court judge, questioned any single charge.

Anger and tears

Lucia Morfesis does not understand how it all happened.

She is her mother's only child, but they were not close. "I loved my mother deeply," Lucia said, but a barrier existed between them that she could not penetrate despite her efforts.

Her mother, Virginia Manos, lived alone on Folly Beach in a house one block from the ocean. As Manos' health faded in 2003, her daughter did not realize anything was wrong other than the typical pains that inflict an 89-year-old woman.

In early 2004, Folly Beach police learned that she could barely walk without assistance, couldn't maintain her house and showed confusion. They contacted Charleston Elder Support, which then petitioned the County Probate Court to declare her incapacitated. The court appointed a conservator and a guardian, who placed her in an assisted living home.

Morfesis said she would have taken over her mother's care, but she never realized the court might give her that option. "It was never explained to me."

Her mother would live four more years, during which the conservator sold her beach home for more than $700,000 to get money for her care.

When she died in July, 2008, the $700,000 from her house was down to $266,000. More than $150,000 of her money had gone to pay for lawyers, guardians, conservators and court fees.

"We have been crying over this for years. It is horrible," Lucia Morfesis said.

"He earned it"

Since 2008, Ann Salemie has gone from anger at her brother to anger at the Charleston County Probate Court and the people it appointed as the guardian and conservator for her mother, Ethel Hyde.

Her anger at her brother, Bill Hyde, stemmed from concern he was taking financial advantage of their mother.

Bill Hyde said he was not taking money. He said his parents asked him to move back in with them to care for them full time. He couldn't work and do that at the same time, so "they helped me" with expenses, he said. After his father died he stayed on to help his mother.

Now, Salemie credits her brother for giving up a job to care for their parents. "I feel like he earned some of it," she said of the money.

Her anger turned to the probate court and the conservator for selling her mother's Shadowmoss home and dumping her mother's belongings on the curb, including family photos. And she's angry at the court for allowing lawyers, guardians, conservators and court fees to get up to $35,000 of her mother's savings.

At least when her brother got some or her money, he was a legitimate heir, she said.

At her nursing home earlier this year, Ethel Hyde, sat with her son, Bill, and said her guardian and conservator often ignored her wishes. "I really don't think old people are paid attention to...I hate to have to beg for my money. My joy is giving to my kids."

WHAT IS PROBATE COURT AND WHAT DO CERTAIN TERMS MEAN?

Probate Court assists the citizens in probating estates, resolving disputes in estates and trusts, handling involuntary commitments for alcohol/drug abuse and/or mental illness, obtaining marriage licenses, appointing and supervising guardians and conservators, and approving minor and wrongful death settlements. Probate Court includes the Estate, Commitment and Marriage Divisions. The Probate Judge is elected county-wide and serves a four-year term.

PROBATE: Typically refers to the legal process of wrapping up a dead person's affairs, paying their bills and distributing their assets.

GUARDIAN: A person who has been appointed by a judge to take care of a minor child (called a ‘ward') or incompetent adult and manage that person's daily life and medical decisions.

CONSERVATOR: A person appointed by a judge to protect and manage another's financial affairs and/or the person's daily life due to physical or mental limitations or old age

Reach Doug Pardue at 937-5558