Guardianship case in McLean illustrates lack of regulation for those caring for the elderly

November 29, 2012

Samuel Drakulich earned a Bronze Star for drawing enemy fire away from a wounded soldier during World War II. He parachuted behind German lines to organize the resistance and went on to serve in the CIA.

But by his mid-80s, a stroke put the war hero in a wheelchair. Jeanne, his wife, had dementia. Their McLean home was in disarray and bills went unpaid.

A dispute between the couple’s children led the courts to decide that the Drakuliches needed a third-party caretaker. A judge appointed a law firm, which is common in Virginia when the elderly and incapacitated have no one else.

Now the Drakuliches and the law firm are fighting over tens of thousands of dollars in billings in a conflict that likely will be decided by the state Supreme Court.

It has raised questions among elder-care advocates and legislators about how a small number of paid guardians — both lawyers and non-lawyer professionals — are treating the aging and how states oversee the process. The questions come just as a host of baby-boomer retirees are expected to make such arrangements more common. Between 2009 and 2025, the U.S. Census Bureau estimates, the elderly population will increase by 60 percent to 64 million.

Guardianship oversight

“We need to look at ways to strengthen the oversight system for guardians,” said Sen. Amy Klobuchar (D-Minn). “While most court-appointed guardians are undoubtedly professional, caring and law-abiding, we have seen mounting evidence that some guardians use their position of power for their own gain.”

In the McLean case, Needham, Mitnick and Pollack (NMP) took control of the Drakuliches’ lives and $700,000 nest egg, as it had done in six similar cases in Fairfax County. It charged wards up to $125 an hour — its normal professional rates — for personal services, such as renewing dog licenses, sorting boxes and preparing instructions on emptying a dryer’s lint trap, court records show.

NMP billed the Drakuliches $6,300 to prepare $1,800 worth of household items for auction, another ward $2,300 to sell a $4,000 car and a third person in their care $4,200 to recover $5,300 worth of investments, a court investigator found.

The Drakulich family calls the bills exorbitant; NMP says they are normal legal bills. The firm says it and other firms can’t afford to become guardians unless they are allowed to charge their regular rates.

Virginia has no cap on fees attorneys can charge for guardianship work or even basic guidelines about how much they should be compensated. Unlike cosmetologists or dental assistants, professional guardians do not have to meet training requirements or be certified in the state.

There is no single system available to the public to track court judgments and complaints against such guardians. And once an attorney is appointed in private cases, such as the Drakuliches’, the state does not make in-person welfare checks on the ward unless a complaint is lodged — unlike in a handful of other states.

Government investigators, academics and advocates for the elderly have recommended that states make reforms in all of these areas, but Virginia is hardly alone in not implementing them. A series of reports found that states have made progress in increasing rules and oversight of guardians, but most have major holes as they face a demographic wave Klobuchar calls the “silver tsunami.”

Klobuchar has sponsored legislation that would provide grants to state courts to bolster and modernize oversight of guardians and conservators.

Experts say even the most basic information is lacking: There are no hard numbers on how many elderly people are being cared for by guardians, although one estimate puts the figure at 1.5 million nationally — roughly the same number that are in nursing homes. Moreover, no one has a clear sense of how widespread abuse is.

“The states aren’t keeping track, and the feds aren’t keeping track,” said Elaine Renoire, president of the National Association to Stop Guardianship Abuse. “We don’t know how much money is slipping through our hands.”

Extraordinary power

When one of the Drakuliches’ daughters questioned NMP’s fees, the firm charged her parents $975 for its response, records show. Family members say such billings left them afraid to confront the firm for fear it would be their loved ones who would pay.

And when the county’s watchdog told NMP to refund about $229,000 in billings in seven cases last year, the law firm challenged the order in a precedent-setting case that could land before Virginia’s Supreme Court. The firm also made what family members considered a galling demand: NMP wanted the seven wards it was accused of overbilling to pick up its $165,000 legal tab.

“My parents were people who worked and sacrificed to get where they were,” said Diane ­Drakulich-Clarke, one of the Drakuliches’ daughters. “NMP ran through their money like wildfire.”

In another Virginia case, a lawyer in Arlington County billed a mentally disabled ward $800 to throw him a party at Hooters and $725 to travel from Virginia to the District to pick up his birth certificate, among $19,000 in charges that a court ultimately ordered to be refunded. This year, a Falls Church lawyer was found guilty of embezzling $275,000 from an elderly couple for which she was serving as guardian.

Most guardianships are overseen by a maze of state and local agencies and courts, so how they are handled varies widely.

For many wards, attorneys make day-to-day decisions about care as guardian and manage their finances as conservator. In most of the Fairfax cases, NMP served both roles. Attorneys gain extraordinary power and responsibility over the elderly. In the eyes of the law, wards are reduced to a childlike status.

There are more than 8,400 guardianship cases in Virginia, according to the state Department of Social Services, but its unclear how many involve the elderly and incapacitated under the care of court-appointed attorneys.

Each Virginia county has a fiduciary watchdog, known as a commissioner of accounts, who approves or denies billings submitted by conservators. Guardians must submit annual reports on the welfare of their wards to the Department of Social Services.

Virginia has a schedule of fees for how much conservators should charge, but the law says only that guardians are entitled to “reasonable” compensation — a fuzzy term that some say leaves wards vulnerable to overbilling.

In Maryland, a patchwork of lawyers, non-lawyer professional guardians and public guardians provide care for the elderly and incapacitated. In public cases, an employee of a local social services agency serves as guardian and each case is overseen by a local review board.

Lawyers often serve as guardians in the District, but the city regulates them more vigorously after a 2003 Washington Post investigation that found widespread abuse and neglect in the District’s system.

Court-appointed professional guardians are now pulled from a panel of lawyers that have undergone special training and background checks. They are required to abide by standards set by the courts and undergo new training each year. However, the District, like Virginia, has no set guidelines for compensation.

Court decisions

Diane Drakulich-Clarke says the ongoing battle with NMP has been a five-year nightmare as family members have sought to recover the savings that were supposed to carry loved ones through their twilight years and serve as an inheritance.

NMP says it made every effort to keep fees low in each of the disputed cases. It says the watchdog significantly overestimated how much NMP charged its clients and failed to grasp the amount of work needed on cases with complicated family dynamics, such as the Drakuliches.

Furthermore, it says law firms can afford to take on such cases only if they can bill at their professional rates. It says few other people are willing to do the work in Virginia. Some areas have a public guardian system for the elderly, but it serves only the poor.

“It will have a significant chilling effect on the willingness of attorneys to serve as independent guardians and conservators if they can’t charge their professional rates,” said NMP’s attorney Bernard DiMuro.

NMP got involved when the Drakulich children couldn’t agree on their parents’ care.

The Drakuliches’ children realized their parents could no longer care for themselves, so Drakulich-Clarke’s sister petitioned the court to be her parents’ guardian and conservator. The move was opposed by her brother.

So they went to court, and the judge appointed the law firm.

At the heart of the dispute is what NMP charged for their guardianship duties.

Drakulich-Clarke said she was floored when she opened a letter from NMP showing the fees for the first 16 months of her parents’ care: $70,000. NMP billed at $95 an hour to fill out Social Security forms and obtain bank balances, and at $105 an hour to call a plumber and check information on the Department of Motor Vehicles Web site, according to billings.

Overall, NMP charged between $85 and $125 an hour for personal care services in the Drakuliches’ case. The pattern of billing was similar in the other six disputed cases.

NMP has defended these rates, saying they were authorized by the initial appointment order. The firm also says it often used its lowest available rate, billing services at the rate of a legal assistant rather than attorney.

In other guardianship cases, however, Virginia lawyers have contracted out such routine services to low-cost providers. For instance, Jean Galloway Ball, another Fairfax lawyer who handles guardianship cases, says she contracts out such work to a retired teacher for $25 an hour. Arlington elder-law lawyer Kelly Thompson says she uses care providers who charge $20 to $40 an hour for such tasks.

In 2007, Drakulich-Clarke wrote a letter to John Rust, who is Fairfax’s fiduciary watchdog, complaining about the fees. That prompted NMP to charge her parents $975 to respond. It also jump-started Rust’s review.

In 201, as Rust was combing through NMP’s billings, Jeanne Drakulich died.

In 2011, Rust issued his findings that NMP had overbilled the seven wards.

Rust concluded that it was not “reasonable” for NMP to charge legal rates for personal care and that there was a fundamental conflict of interest at the heart of most of the cases: NMP controlled its wards’ purse strings and employed itself to perform many of the guardianship tasks.

Rust demanded that NMP return nearly $46,000 in the Drakuliches’ case among the $229,000 in overbillings for the seven wards. Rust declined to comment because litigation is pending.

NMP challenged the order in Fairfax County court, and Fairfax County Circuit Court Judge Leslie Alden ordered a full review of the billings.

In July, Alden largely sided with Rust, ruling that charging legal fees for nonlegal guardianship work was unreasonable and that the watchdog could require NMP to refund the money. Alden did say that NMP had done work that was necessary and appropriate for the wards.

Alden tasked Rust with determining a proper rate for nonlegal guardianship work performed by NMP, which observers said could become a benchmark in the state. She ruled out the wards having to pay for NMP’s legal bills for the case.

DiMuro said NMP is appealing the ruling to Virginia’s Supreme Court — a move backed by many lawyers in Virginia.

Drakulich-Clarke said she is eager to learn if the Virginia Supreme Court will take up the case, but she also is anxious. She fears that NMP will further eat up what remains of her parents’ estate as the case plays out.

“NMP did not hurt my parents in the sense that it made them destitute,” Drakulich-Clarke said. “But they carefully calibrated so there would have been nothing left in their estate when they were gone.”

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