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By Angela Couloumbis | Spotlight PA
Not long after Christmas 2010, 84-year-old Penny Raffa abruptly found herself facing the daunting prospect of losing the ability to make even the most basic decisions about her life.
The Montgomery County nursing home where Raffa had been living for a mere five months had launched a court proceeding to declare her incapacitated. Around the same time, the nursing home also surprised her with a debt collection lawsuit.
Raffa was appointed a legal guardian that day — a person recommended by the lawyer for the same nursing home suing her for unpaid debts. That guardian then hired a different attorney, one yet again suggested by the nursing home, to represent the older woman in the debt collection action.
But that lawyer purposely did no work on her behalf, according to a long-running lawsuit that recently landed before one of Pennsylvania’s highest courts, and Raffa lost the case. Then, to pay off the debt, she was forced to sell her home.
The two lawyers named in the suit, brought by Raffa’s estate after her death in early 2012, have denied wrongdoing. And the tangled sequence of events alleged in the court claim has not been substantiated.
But the case spotlights Pennsylvania’s vexing system for safeguarding vulnerable older adults from potential fraud and other conflicts when they are declared legally incapacitated, as well as the gaps that still exist in its elder protection laws.
The shortcomings persist despite vigorous efforts over the past decade by judges, lawyers, lawmakers, and advocates to develop new protocols for dealing with those cases. They were spurred to action in no small part by sobering projections that Pennsylvania, already home to one of the highest number of older residents in the nation, will experience a sharp increase in that population over the next three decades and face a swell of guardianship and other older adult protection cases.
In the state Capitol, a bipartisan group of lawmakers has introduced legislation aimed at making guardianship a choice of last resort. The bill would also mandate that older adults have legal representation at guardianship proceedings, and require guardians to undergo mandatory training, certification, and background checks, among other changes.
“Appointing a guardian for a person represents a serious step,” state Sen. Judy Ward (R., Blair) said at a hearing on guardianship in the Capitol last month, noting that it results in a “total deprivation of liberty and autonomy.”
She added: “Granting a petition of guardianship should be taken with great caution and utmost respect for the person’s basic rights.”
‘Shocks the conscience’
At its core, the state’s guardianship law and the complex system set up to enforce it are meant to protect adults who, due to illness, disability, or other unforeseen causes, can no longer manage their personal affairs, said Marielle Hazen, whose Harrisburg-based law firm specializes in elder law. But the law, she said, is not perfect.
Guardians are people appointed by a court to take over decision-making about the health or financial affairs — often both — of an adult who has lost the ability to make sound decisions about their life. They can be friends, relatives, or acquaintances of the incapacitated person, or they can be professionals who do such work for a fee.
In Pennsylvania, guardians aren’t required to be certified or trained before taking on the role.
The state has over 18,000 active guardianships, nearly half of which involve people over the age of 60, according to data compiled by the state Supreme Court’s Advisory Council on Elder Justice in the Courts. Those guardians oversee more than $1.7 billion in assets.
Though laws vary from state to state, in most cases, almost anyone can petition a court to declare a person incapacitated and have them placed under guardianship. In Pennsylvania, Orphans’ Court judges decide those cases after a hearing that includes medical and other professional testimony.
In Raffa’s case, the nursing home in which she lived the last year of her life launched the proceeding to have her declared incapacitated, according to the 2014 lawsuit brought by her daughter, Edith Horan, on behalf of her mother’s estate.
The lawsuit alleges that the very people in the system designed to help people like Raffa intentionally failed her, and then exploited her financially. In the suit, lawyers for Raffa’s estate called it a “conspiracy” that “shocks the conscience, makes a mockery of this Commonwealth’s guardianship statutes … and callously exploits and abuses some of the most vulnerable members of society — all in a relentless, rabid pursuit of money.”
Horan and several of Raffa’s other family members did not respond to interview requests for this story, or declined to comment. Lawyers for her family also did not return repeated requests for comment. As a result, certain details about her case are unknown.
Spotlight PA has pieced together a timeline of her story based on information in the lawsuit, which has largely unfolded in Montgomery County in suburban Philadelphia.
Raffa was admitted to the Manor Care nursing home in King of Prussia two days before Christmas 2010. According to the suit, a few months later the nursing home and its then-outside lawyer, Brian Dietrich of Montgomery County, met with another Montgomery County lawyer, Robert Feliciani, to discuss having Raffa declared incapacitated.
The lawsuit does not describe how the two lawyers knew each other. A Spotlight PA review of court dockets in suburban Philadelphia counties show the two were at least familiar with each other, as they or their firms participated in dozens of the same incapacitation cases around that time, representing opposing clients.
The lawsuit also does not describe the specific conditions that led the nursing home to pursue a guardian for Raffa. But lawyers for her estate said in court filings that she was admitted to Manor Care because she was unable to independently care for herself; and they assert that shortly after, the 84-year-old experienced a series of falls and other ailments that eventually landed her in the hospital and contributed to her death.
At Raffa’s incapacitation hearing, the lawsuit alleges, Dietrich convinced the court to appoint his handpicked guardian to manage Raffa’s affairs. Around the same time, he launched a debt collection action against Raffa for unpaid nursing home bills, but allegedly did not disclose that to the judge at Raffa’s incapacitation hearing.
Dietrich then allegedly recommended that Raffa’s new guardian, who is not a defendant in the lawsuit, hire Feliciani to represent Raffa in the debt collection action. The close ties between the people who were supposed to look after her and those seeking money from her raised a conflict, lawyers for Raffa’s estate contend — one that again was not disclosed to the judge overseeing Raffa’s incapacitation hearing.
Feliciani failed to respond to the debt collection action, and also kept key details about it from Raffa’s family and her guardian, the lawsuit alleges.
The result: Raffa was hit with an $81,651 default judgment. To pay it off, she had to sell her home.
Gary M. Samms, Dietrich’s lawyer, said in an interview that his client had done “nothing unethical or illegal.”
“There was never any collusion, no unethical conduct, never anything inappropriate,” said Samms, a partner at Obermayer Rebmann Maxwell & Hippel in Philadelphia, adding that Dietrich “is one of the most ethical and well-respected attorneys in his area of expertise.”
Feliciani’s lawyer, Patrick Cosgrove, told Spotlight PA: “For nearly a decade, Mr. Feliciani has denied the allegations contained in Ms. Horan’s … complaint. Mr. Feliciani looks forward to his day in court as he is confident that a jury of his peers will reach a verdict in his favor.”
Attorneys for Raffa’s estate contend Dietrich and Feliciani “have a longstanding history of purporting to be litigation opponents while in fact, working together to secure judgments by default and judgments by agreement against mentally incapacitated nursing home residents and/or their assets.”
The lawsuit cites 11 other instances, all in Bucks and Montgomery Counties, where Raffa’s estate contends Dietrich and Feliciani pursued the same strategy against nursing home residents there.
Spotlight PA reviewed the docket and court records in those 11 cases. In each, after a resident was declared incapacitated and appointed a guardian, the nursing home, through Dietrich or his firm, filed a debt collection action. Feliciani, who represented the elder adult or their guardian, either failed to respond (resulting in a default monetary judgment) or reached an agreement to pay the past-due amount.
None of those 11 guardianship proceedings led to additional civil action against the two private lawyers, as in Raffa’s case.
The lawsuit brought by Raffa’s estate named Manor Care and its corporate affiliates, Dietrich, and Feliciani. Her estate has settled with Manor Care, according to the court docket. An attorney for the nursing home declined to comment.
The case has dragged out in the courts as the two sides have fought over the specific counts of alleged wrongdoing. A lower court judge initially dismissed the estate’s allegations against Dietrich and Feliciani for being legally insufficient, although the judge did not provide an explanation for the ruling. The estate appealed, and late last year, a panel of three judges on the state Superior Court reinstated most of the counts.
The appellate court judges stopped short of granting the estate’s request to bar the two lawyers from ever handling cases involving older adults. Such a request, they said, would have to go through the state board that oversees attorney discipline, with the state’s Supreme Court making the ultimate decision on punishment.
But in the decision, one of the judges stressed that if Raffa’s allegations are substantiated, “the matter should be referred to appropriate authorities to take action.” The case has now been remanded to the Montgomery Court of Common Pleas, where it could proceed to trial.
Dietrich remains in private practice. Feliciani is listed as an active lawyer on the website maintained by the state’s disciplinary board for attorneys, although his LinkedIn page shows he closed his private practice in 2019.
Before he closed his practice, according to news articles, Feliciani was a lawyer in at least one case overseen by former Philadelphia guardian Gloria Byars. Byars made headlines across the state after being charged by local and federal authorities in 2019 for stealing more than $1 million from the people she was assigned to care for.
Neither Dietrich nor Feliciani has any past or pending disciplinary proceedings, according to the state’s disciplinary website.
‘Like a nuclear bomb’
In 2013, the state Supreme Court created a task force to study issues impacting Pennsylvania’s older adults. Guardianship laws, elder abuse prevention, and access to justice were among its top priorities.
A year later, the task force released a sweeping, nearly 300-page report with 130 recommendations, including increasing data collection on guardianship cases, improving training for judges who decide whether someone requires a guardian, and expanding protections for the person who could be declared incapacitated.
Notably, the task force recommended that people facing incapacitation hearings, as well as their families, be provided a list clearly stating their rights. It also recommended that whenever possible, a relative or friend be appointed as guardian, as opposed to a professional with a financial stake, and that all guardians receive training.
It also recommended that people facing the possibility of losing the freedom to make life decisions be guaranteed a lawyer at their incapacitation hearings.
Nearly 10 years later, many recommendations have been implemented, including a relatively new tracking system to collect data about guardianships. Yet others, including the automatic right to legal representation, have either languished or been shelved.
While there has been an emphasis on training judges and court staff on recognizing potential conflicts and other pitfalls in guardianship cases, the outcome hasn’t been consistent, advocates say. Some judges, for instance, take great pains to consider less severe alternatives to guardianship, while others still assign guardianship as a default.
“The concept of guardianship, if used correctly, is a tool that can be a good one,” said Karen Buck, executive director of the SeniorLaw Center, a Philadelphia-based nonprofit law organization that aims to protect legal rights for older adults. “The challenges are that it’s been a default remedy that wasn’t always needed, and where individual rights haven’t always been protected or even been a priority.”
Added Buck, who was also a member of the Pennsylvania Supreme Court’s task force: “There is a lack of practice that guardianship should be the last resort, like the nuclear bomb. That has not been the case consistently.”
State court officials, who oversee the guardian tracking system, could not immediately provide data on how many of the guardianship petitions filed annually in Pennsylvania are granted by judges overseeing those hearings.
A bipartisan group of lawmakers led by state Sens. Lisa Baker (R., Luzerne) and Art Haywood (D., Philadelphia) has stepped in with a proposal to fix some of the problems Buck and others believe could help eliminate pitfalls in guardianship proceedings.
The overarching goal of their bill is to encourage judges, lawyers and others to exhaust all other alternatives before deciding on guardianship.
It would require anyone petitioning the courts for guardianship on behalf of another person to demonstrate that less restrictive alternatives were considered first. Judges also would have to explore other options before appointing a guardian.
The legislation, which has not yet received committee approval, would also require certification for professional guardians, and mandate that anyone facing guardianship be appointed a lawyer.
“What we are trying to do is very important for protecting older Pennsylvanians,” Baker said in a recent interview. “And it lines up very well with what [the high court] is doing with their guardianship tracking system. This gives another way to make sure that bad actors aren’t taking advantage of vulnerable adults.”
Elder care lawyers and advocates for older adults welcome the changes, but also note that there are other areas that pose particular challenges, including educating and training judges and court staff, and ensuring court monitoring of guardianships once they’ve been established. Shoring up court monitoring is especially difficult because those courts are often understaffed and underfunded.
Lawrence Frolik, an emeritus professor of law at the University of Pittsburgh, has authored books and articles on elder law and legal issues facing older Americans. A key problem is the one-size-fits-all guardianship system in Pennsylvania.
He said there are three groups of people who typically face guardianship proceedings. The first — people with intellectual and other disabilities — may need assistance with only a very narrow set of decisions, and guardianship proceedings should be tailored to allow them to maintain as much independence as possible.
The second, those with a mental illness that can be effectively treated by medication, may require guardianship only during certain time periods, for instance, such as when they lose access to medication or care. For them, having a guardian who can take over on a standby and short-term basis may be a better option.
But for older adults, incapacitation hearings often occur because of mental decline or dementia, and guardianship will likely remain in place for life. In those cases, guardianship has historically been viewed as a protective measure. But Frolik said the system would benefit from greater protections, in particular, rigorous follow-up supervision by the courts once a guardian has been appointed.
Though there is a heavy emphasis in Baker and Haywood’s legislation on mandatory legal representation at incapacitation hearings, there also needs to be a stronger system for identifying potential conflicts of interest among lawyers and others involved in the case, Frolik and other advocates said.
All such changes, however, require a recognition that guardianship should be a remedy granted sparingly.
Said Buck: “It is a quintessential time for change in this commonwealth in this area, in a system that was broken.”
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