Looking to safeguard state wards

Nebraska's top judge wants a task force to investigate the justice-system shortcomings that allowed hundreds of thousands of dollars to be drained from the vulnerable people an Omaha woman had been appointed to protect.

Nebraska Supreme Court Chief Justice Michael Heavican said he will call upon judges, attorneys, auditors, lawmakers, fraud investigators and others to probe what needs to be done to shore up the state's guardian and conservator system.

Heavican said he decided to make the rare move of appointing a task force after reading The World-Herald's April 11 report on the flaws that allowed the accounts of several wards to be emptied.

Authorities say former court-appointed guardian Dinah Turrentine-Sims who has declined interview requests took at least $350,000 from as many as eight wards. The 59-year-old has been charged with theft and abuse of a vulnerable adult in connection with two cases.

Among the flaws, the newspaper found that judges failed to:

_ Set bonds insurance that could have protected the assets of the people in Turrentine-Sims' care.

_ Scrutinize the care that she arranged for her wards.

_ Spot inflated numbers and unusual entries on her accountings.

_ Subpoena bank statements statements that showed large cash deposits and numerous casino ATM withdrawals.

Nationwide, Heavican said, court administrators are placing great emphasis on bolstering probate court, the part of the justice system charged with overseeing the health and wealth of elderly and disabled people. It's easy to see why: Fueled by baby boomers, the elderly population is expected to exceed 71 million people by 2030 more than double the number in 2000.

Heavican said the courts' responsibility to protect the elderly and the disabled is no different from their duty to protect children.

“Most of us agree that this issue with guardians and conservators is huge,” Heavican said. “We want a full picture of how this happened and why this happened so it doesn't happen again.”

Heavican's call for a task force comes as a national expert says Nebraska is behind the times in its guardianship system. In cases where no attorney, family member or loved one is available, Nebraska judges are dependent on volunteer guardians and attorneys to care for the incapacitated.

In 48 other states, judges can tap public guardian offices to represent the incapacitated no different from how public defenders represent the indigent in criminal court.

While Heavican promised a task force, one retired judge took her former colleagues to task for their handling of the cases.

Retired Douglas County Judge Jane Prochaska, who specialized in probate matters before her 2006 retirement, said Douglas County needs a change in judges, not the law.

“It's just plain incompetence on the part of these judges,” she said. “They don't know probate. If they did if every case were handled by a conscientious, competent judge this would have never happened.”

Twelve Douglas County judges had appointed Turrentine-Sims to look after more than 30 wards since 2001. Five different judges were in charge of the cases where police suspect impropriety.

Prochaska's former colleagues bristled at her criticism.

“I don't think that's fair at all,” Presiding Douglas County Judge Susan Bazis said. “Certainly judges come in with different levels of understanding of certain areas of the law. But I think the majority of our judges know (probate) forwards and backwards. I think they're all competent enough to do it.”

Judge John Huber agreed, although he did say that some of his colleagues probably would gladly give up probate.

Lancaster County has one judge who specializes in probate cases, just as Douglas County once did. For years, Douglas County's probate specialist was Judge Robert McGowan. Then it was Prochaska, who did probate and estate work before she was appointed to the bench in 1985. Then, in the mid-1990s, Douglas County spread probate cases among all 12 judges.

Prochaska said she was a member of the National College of Probate Judges and still receives phone calls “all the time” from attorneys and judges seeking advice on the law. In 2006, the Nebraska Supreme Court criticized her for delays in the handling of a guardian conservator case criticism Prochaska said was unwarranted.

Asked if Prochaska was an expert in probate law, Judge Huber said: “She's not an expert in anything.”

The World-Herald's examination of eight cases handled by Turrentine-Sims found that:

_ Her inventories often were incomplete. Turrentine-Sims often left out major assets on her inventories. In the case of Jerome and Sophie Kresl, she omitted more than $240,000 the amount she is accused of taking.

_ Her accountings were not scrutinized. Douglas County relies on volunteers to audit inventories. In several cases, the volunteer auditor simply checked the math of the conservator. Neither the auditor nor the judge questioned several vague entries with inflated numbers. Police allege she actually had written those checks to herself.

_ Judges set bonds in fewer than half of the cases where impropriety is suspected. Even in cases where bonds were set, it was often inadequate.

Cass County Judge John Steinheider set Turrentine-Sims' bond at $6,000 in a case where, authorities later learned, the wards' assets topped $240,000. Douglas County Judge Steven Swartz set bond at $30,000 in a case where an elderly man had received $67,000 in insurance proceeds. Now, $64,000 in proceeds are gone and Swartz is trying to collect the $30,000 in bond money.

_ After judges set bond, no one ensured that Turrentine-Sims posted the money. Judge Marcena Hendrix set bond of $150,000 for an elderly Omaha woman who had more than $200,000 in assets. However, neither the judge nor anyone else made sure that Turrentine-Sims posted the bond. She didn't, and the estate now has nothing left.

Swartz didn't return calls. Hendrix and Steinheider declined to comment on specific cases.

However, several judges did address the limitations they encounter in keeping watch over wards and their assets. Some attorneys have suggested that two independent conservators should be appointed to each ward one to serve as a check on the other's spending.

Judges said a crucial stage of the conservatorship is up front when the conservator submits the inventory of the ward's assets and the bond is set.

“If you don't have interested family members involved, then it's very difficult to ensure you have all the assets accounted for,” Steinheider said. “If a conservator is reporting assets of $10,000 and there's a $250,000 account not being reported, someone could ‘ATM' it to death without the judge ever knowing.”

Prochaska said judges have to pick up on cues. In these cases, one couple owned a house outright and had three sons who were out-of-state professionals a clue that the couple was successful and had more assets than what was reported. In cases where she doubted she was receiving a full inventory, Prochaska said, she would assign an attorney to search for assets in the ward's name.

Prochaska said she erred on the high side when it came to bond. She once even made her mentor, McGowan, post bond when he handled a private probate case after his retirement from the bench.

“I always told people ‘I'd bond God himself,' ” Prochaska said. “I never just trusted people.”

Changes must be made to restore people's trust in the system, Douglas County Attorney Don Kleine said. Kleine said his office will evaluate all 30 cases that were handled by Turrentine-Sims.

Bazis, the presiding judge, is examining the cases and plans to discuss them with her fellow judges at their next meeting.

Heavican said the Supreme Court's task force will review the cases and make recommendations on statutes and court practices. Its only limits, he said, will be to make suggestions that fit within “the reality of the state's and the courts' tightening budgets.”

Nebraska and Wyoming are the only states that don't fund some form of a public guardian system for the incapacitated. Iowa's system is bare bones, too, according to national studies.

Nebraska judges and attorneys pushed for a public guardian office in 2005 and 2007 to no avail. The last time it was proposed, York County Judge Curtis Evans said, proponents asked for about $400,000 to hire a director, deputy director and start up the office.

Winsor Schmidt, a University of Louisville professor who has tracked the issue since 1981, said such money is well spent. Recent studies in Florida and Virginia have shown cost savings because public guardians often act quicker than volunteers and cut down on lengthy, expensive hospital stays, he said.

“We're talking about an extremely vulnerable population here probably the most vulnerable population in the U.S.,” Schmidt said. “It's up to your state to decide how it's going to fulfill its basic duty: to take care of the people who can't take care of themselves.”

Contact the writer:

444-1275, todd.cooper@owh.com

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