THE TRAGEDY OF GUARDIANSHIP FRAUD
What can happen when Court ordered Guardianship goes WRONG

Platte County man fights against his guardianship: The saga of T John Flentie:

BY ERIC ADLER
THE KANSAS CITY STAR
06/28/2014 3:59 PM
06/30/2014 1:01 PM

Cedars of Liberty is the third assisted living facility John Flentie, 73, has lived in since he unwillingly came under the guardianship and conservatorship of the Platte County public administrator's office in 2012. He says he wants to go home.TAMMY LJUNGBLAD/THE KANSAS CITY STAR

Instead to the extreme frustration of Flentie, his lawyer and a cadre of former high school classmates who for two years have been advocating for the release of a friend who they insist is as capable and highly intelligent as always Flentie is a ward of the state of Missouri.

Since April 2012, he has been committed to various nursing homes under the guardianship and conservatorship of the office of the Platte County public administrator, which claims in court proceedings that taking charge of Flentie, his estate and his possessions was and continues to be for his own health and well-being.

Indeed, there is little argument that Flentie was having enough medical difficulties at one period to warrant some care. Part of his problem now is that some experts still see enough in his history, such as hoarding and possible overmedication, to warrant full guardianship.

But to Flentie and his supporters, the idea that he is, as the law requires, "totally disabled " and " totally incapacitated " and can't care for himself at all is ludicrous. As they see it, and he states, he is a healthy man who is being held " captive " against his will, against his best interests and against his rights.

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His lawyer had hoped to argue for his release in an appeal to the Missouri Supreme Court. But last week, the high court chose not to hear the case, a fact that has only intensified Flentie's feeling that he is trapped in a system and set of circumstances that one friend described as having unfolded like a " nightmare. "

" What's happened to John Flentie is simply disgusting, " said his attorney, Jonathan Sternberg. " This is a story about a perfectly good, law-abiding, hardworking person who has had the government step into his life, railroaded him and has taken away everything he's worked for. "

To Flentie's supporters, who are men also in their 70s, it's impossible to see their friend's predicament as anything less than a cautionary tale of government overreach, of good government intentions turned ill and the perils of growing old alone.

" The fact is he is competent, " said architect John Delich, 73, one of three lifelong friends from the De La Salle Military Academy class of 1958 working on Flentie's behalf. " Does he have to lose his freedom? And if it happens to him, what about me when I don't have any family? "

Toni Clemens, who as the Platte County public administrator is Flentie's guardian, declined to comment specifically about his case, citing privacy concerns and the recent legal appeal.

" I believe we have done above and beyond our requirements with this person and all the people we are appointed to serve, " she wrote in an email.

To be sure, no one involved in Flentie's case doubts the important roles public administrators play as guardians and conservators. Guardians are named by a court to care for someone who is judged unable to care for himself or herself. Conservators are named to control and manage such a person's finances.

When no one else, such as a friend or relative, is available to serve as guardian or conservator, the state probate court may appoint the public administrator. In Missouri, every county has an administrator (Kansas operates under a different system) who is either elected or appointed to a four-year term. These public officials act as guardians and/or conservators for some 14,000 vulnerable individuals statewide.

" The guardian is put in place when the person is unable or unwilling to manage their own health care and finances, " Clemens wrote.

" Most people that get to the point of needing a guardian have decompensated to the point that they are in danger of harming themselves. "

Stark change

Delich and others said it is difficult for them to look at Flentie's circumstances in anything other than stark then-and-now terms.

Two years ago, Flentie lived happily and alone. He was a self-admitted pack rat and hoarder, a retired electronics expert who chose to jam the $300,000 home he owned in one of the more modest sections of Riss Lake with towers of electronics equipment that spanned from wall to wall and even floor to ceiling. His rooms contained a vast spiderweb of electrical cords.

" The place is a cluttered mess, " Flentie conceded of his Riss Lake house in recent interviews. " I'm a pack rat and former OCD, obsessive-compulsive. " But he had grown used to it and maintains there was nothing electrically dangerous about it that couldn't have been easily corrected. Nor was it unclean. " I had two mice there in all those years. "

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With no children and divorced for decades, Flentie had his interests, like going dancing at singles events and listening to his countless jazz albums.

Now, since the guardianship, he has been living a similarly cluttered life in what has been the third in a series of nursing homes that he is not allowed to leave without permission. This month, Clemens sent him into fits of worry when she informed him by letter that the county was packing up everything in the residence he's owned for 20 years to prepare the house for sale or auction.

" I think you can realize just how devastating this is to me, " Flentie wrote to friends. On June 13, two 1-800-GOT-JUNK trucks rolled up to his home to haul away his possessions.

Two years ago, Flentie had more than $660,000 in various bank accounts and stock investments, not including the equity in his home. He had zero credit card debt, paid every bill on time by automatic withdrawal and, documents show, had a perfect credit rating of 990.

" How many people do you know with perfect credit? " he asked.

Now, with the Platte County public administrator as his conservator, he gets $50 a month of his own money to spend. Moreover, because the law permits the administrator to use Flentie's own funds to pay for his room, board and care at the nursing home as well as to pay for the mortgage, utilities and upkeep on the home he has not lived in for two years, documents show he is more than $80,000 poorer than when the conservatorship began.

" They're even using his funds to pay for the county's legal representation in his appeal, " said Leawood friend and former classmate Mike McCowen, 72, a pilot who worked for Phillips Petroleum for 38 years. That sum so far is just over $10,000.

" So he's fighting against his own money. "

Two years ago, Flentie had a license to drive and the right to vote. Under guardianship, he has lost both.

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Physics grad

How this all came to be is spelled out in court documents and interviews.

Over the last few weeks, Flentie shared his story with The Star by telephone and multiple emails and in two extended personal meetings. One occurred at a restaurant in Liberty in the presence of high school friends Delich, McCowen and Lou Bresette, 72, a Kansas City remodeling contractor.

" We probably visit him once every two weeks or so and take him to lunch. I have never seen him where he was in anything less than in full command of his faculties, " said Bresette, who described Flentie as a top student in high school.

A Rockhurst College physics graduate, Flentie later worked as an electronics surveillance expert under contract to the CIA for more than 30 years, including a stint during which he was wounded in Vietnam.

" If he needs to be in that (nursing) home, so do I, " Bresette said.

The second interview took place inside his current residence, Cedars of Liberty, an assisted living facility of narrow halls, institutional tile and dim lights that was formerly a seminary.

Flentie's saga, records show, began with a couple of falls while he was disoriented inside his home.

Flentie still has no idea why they happened. But later at the probate court hearing to determine whether he needed guardianship, he testified that he also had fallen in the past, every two years or so. After the incidents, the condition would pass, he said.

" It's just all of a sudden something explodes, or implodes, " he said in court, " which my doctor, my psychiatrist nor my neurologist can figure out what's going on. "

Flentie is upfront about taking numerous medications, including several for bipolar disorder, which he said he has managed well for 20 years. His prescriptions include Prozac, Elavil, Risperdal and Lamictal. He takes two other medications for prostate problems, one for blood pressure, and a battery of vitamins.

Around 15 years ago, Flentie suffered an injury to the disks of his back that, until recently, had him taking as many as six Vicodin a day for pain, along with acetaminophen and Lyrica for fibromyalgia. For a while he took Aricept for memory, but he no longer does.

" I am absolutely, totally convinced, " said McCowen, " that what happened is that he had an adverse drug reaction. "

In late November 2011, he fell, followed within a few days by another fall in early December.

It was that second fall and hospitalization that, through a hotline call, prompted two workers at the Missouri Department of Health and Senior Services to twice visit Flentie at his Riss Lake home.

There they saw the clutter and stacks of electronics. They saw an unkempt home, its unkempt owner and piles of laundry stacked on the washer.

" We discussed with him the the nature of his, the condition, rather, of his home, " the worker, Anita Hunter, would later testify, " and he did not seem overly concerned about it. "

The kitchen was all but unusable, testimony indicated. They wondered how he cooked. He kept cartons of canned goods around to heat, but he said he often ordered in or ate out.

" We spoke with Mr. Flentie about having somebody come in and help him with cooking and cleaning, and he denied he needed any assistance, " Hunter would testify.

They were concerned about his use or abuse of medications.

Flentie is a recovering alcoholic whose problem drinking ended in 1978 but who conceded that he still has an occasional glass of beer or wine with dinner. They worried about the possibility that he would improperly mix alcohol and prescriptions. They suggested that a nurse come in and " help him set up his medications. "

But Flentie said he didn't need it. He had his own system. He used plastic pill strips, Sunday-to-Saturday organizers in which he placed each day's prescriptions. He didn't have just one, but eight weeks' worth, 56 days, set out.

In the end, the Department of Health and Senior Services declared the case " suspected " self-neglect and shut the file until three more months passed.

Another fall

On March 26, 2012, a disoriented Flentie fell at home again.

Up until then, Flentie's friends typically saw him about once a year at their high school's annual reunion. So they were unaware what he was facing at that time and, even now, don't fault authorities for stepping in.

" There is none of us who support John who dispute the fact that he needed help at that time, " said Bresette.

McCowen agreed.

" There is no question the man was in trouble, " he said. " No question about that. There needed to be intervention. "

None anticipated how receiving help would so hurt him.

After the third fall, the state and county took serious action. It all happened in days.

At St. Luke's North Hospital, two doctors in quick course evaluated Flentie and diagnosed him with bipolar disorder with psychotic symptoms and dementia.

The day after he was admitted, he was seen by internal medicine physician Ryan McNellis. Psychiatrist Arjumand Jaffri saw Flentie the next day, but he had also seen him during previous hospitalizations.

" This is an alert white male who is oriented to himself, place and the situation, " Jaffri documented on March 28.

He noted that Flentie had no suicidal or homicidal thoughts, no hallucinations, a good grasp of current affairs, coherent speech, decent memory and fair concentration. But he also noted that Flentie was persistently guarded and evasive, that he didn't appear to recognize Jaffri even though they had seen each other only days before. He wrote that Flentie had been admitted multiple times and there was concern over how his use of medications could be causing his hospital admissions and affecting his " mental status. "

" His ability to make informed decisions appears to be compromised at this time, " Jaffri wrote, but he made no recommendation regarding guardianship.

The next day, McNellis examined Flentie again and in court papers declared, " Mr. Flentie is not competent to care for himself. "

Nor did he think Flentie was competent to take care of his own finances.

Given the option to choose whether Flentie was " disabled " or " partially disabled, " McNellis wrote " Yes, disabled " by virtue of dementia and bipolar disorder. He recommended that Flentie be placed in " assisted living " as the most appropriate and least restrictive environment.

Flentie has an adult cousin who lives in Kansas. But his only sibling and closest blood relative is a sister who lives in San Francisco. They have been estranged for decades.

Little warning

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So on March 30, 2012, a Friday four days after Flentie's fall brought him to the hospital the then Platte County public administrator, Terry L. Edwards, filed a petition in Platte County Circuit Court for guardianship and conservatorship.

The court appointed Flentie an attorney, Robert C. Black of Platte County, who also declined to comment for this story, citing privacy, even though Flentie was willing to grant permission. The court also set a date for a hearing on the very next Monday, April 2, at 1:30 p.m. at the Platte County Courthouse.

Flentie said he had no idea any of this was happening.

" The first time I knew anything, " he said recently, " is that this lawyer they appointed for me showed up in my hospital room an hour before the hearing. "

Court records suggest it may have been a couple of hours. But Flentie insists that until that day he had neither heard of nor heard from Black. From the hospital, they drove directly to the courthouse.

At 1:28 p.m., records show, a deputy with the Platte County Sheriff's Office met Flentie at the courthouse and served him, as required by law, with the legal paper informing him that he was to be the subject of a guardianship hearing. It was two minutes before the appearance in court a time so short that Sternberg would eventually use it as the centerpiece for his appeal.

" I was in a total confused state about what the hell is happening here, " Flentie recalled.

In 45 minutes, the hearing was over.

Lisa Rehard, the attorney representing the public administrator's office, presented the reports by the two doctors and called two witnesses: the worker from the state senior services department and Clemens, who was then the deputy public administrator. In November 2012, she would be elected to lead the office.

Black cross-examined both witnesses and called Flentie, who testified that he could handle and long had handled his own affairs.

At the end of the hearing, Judge James W. Van Amburg waived his option to put Flentie under temporary or limited guardianship and instead signed a paper judging Flentie to be " totally incapacitated and totally disabled. "

Flentie was placed under full guardianship, his assets under conservatorship, and never returned to his home.

From the hospital, he went directly to a residential care facility. At that point, he began his two-year battle for his freedom, aided by friends.

Twice a year

By Missouri statute, those under guardianship can petition the court for what is known as " restoration " once every 180 days.

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On Nov. 8, 2012 seven months after he was put under county care Flentie again sat before the judge with Black as his attorney.

Flentie again testified that he was of clear mind and body. Even now, two years into his county care, he insists he has not had a single fall since March 2012.

" I can do everything now that I was able to do before all this crap happened, " he said recently. " I am totally functioning, physically and mentally. "

At the restoration hearing, Flentie's lawyer provided what he considered to be evidence of Flentie's competency: seven evaluations taken by two psychiatrists, Asim Ulusarac and Mark Cannon, whom Flentie had been seeing for years. Six of the tests were done while he was under guardianship and one before. Each one clearly said that Flentie had bipolar disorder, but they also clearly indicated that the illness was " in remission " and that Flentie exhibited no signs of psychosis.

In late June 2012 close to three months after he was put under guardianship Flentie also received a battery of 20 tests by neuropsychologist William Blessing.

His conclusions, also put into evidence: slowing memory and attention, but no signs of dementia and otherwise normal. " Because this is a normal neurocognitive study, " Blessing wrote, " a cognitive basis for assisted living or guardianship was not identified. "

Flentie's goal was clear: to concede that, yes, he was a hoarderlike pack rat. And, yes, his personal cleanliness wasn't always the best. But he fed himself and paid his bills perfectly and was not, as the law required for full guardianship, " totally disabled " and " totally incapacitated. " Doesn't a person have the right to live as he or she chooses?

" If you put away every person with what they called poor hygiene, you'd have to put away half of Missouri, " Flentie recently joked.

One problem, however, was that even some of his own evidence was mixed.

" Mr. Flentie can present ‘eccentric,' " psychiatrist Cannon wrote to the court, then added: " Has not demonstrated an ability to properly attend to hygiene/grooming and taking care of the home. "

Cannon indicated that Flentie wasn't disabled or incapacitated, but he still thought a conservator might be in Flentie's best interest.

Denied

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In the end, Flentie's petition for restoration was denied, as the Platte County public administrator's office had its own evidence.

It included a health worker who testified that Flentie had been combative and uncooperative (Flentie acknowledged that's true " We were headlocked, " he said), and she said he was even threatening (which he said is untrue). A Fire Department official showed some 90 photographs of the packed and unsafe nature of Flentie's home.

Flentie's supporters wonder: If hoarding and hygiene were such problems, why no middle measures, like help for him at home, a cleaner, a nurse to manage medications? Why the rush to full guardianship?

Perhaps most notable among the evidence was a note from a pain management physician who thought Flentie needed supervised care and a June letter written to the court by Flentie's longtime physician, Robert E. Neihart.

" I believe that this patient does need a guardian for his health and safety, " Neihart wrote. " In my opinion, he should not live alone, and he should not drive a motor vehicle. "

Flentie knew the letter hurt him. He countered recently that Neihart is neither a psychiatrist nor a neuropsychologist; he's a doctor of internal medicine. He said he wished that the court had not placed so much stock in the opinion.

Flentie had no concept of the uphill battle he faced in Platte County probate court.

A search of about 350 open Platte County guardianship and conservatorship records under Clemens as well as her immediate predecessor shows that Flentie is in a rare group. A small percentage of individuals actually attempt to regain their full liberties in court.

Since 2005, it's estimated that 24 individuals had regained full liberties, at least 17 others failed to do so, and at least a dozen got liberties restored partially, such as the right to vote or drive.

" People do get restored. They get restored all the time, " Rehard said.

Convincing the probate court to restore liberties without the recommendation of the Platte County public administrator, however, is all the harder.

That's why in February 2013, with Sternberg as his new attorney, Flentie took a new tack. He filed a notice of appeal in the Missouri Court of Appeals, Western District.

Sternberg's prime argument was that guardianship and conservatorship over Flentie should have been tossed out because Platte County was not following the law when it served Flentie with notice of his hearing only two minutes before it occurred.

Missouri Statute 475.075.2 requires that an individual under possible guardianship " shall be served in person … a reasonable time before the date set for the hearing. " Two minutes, he argued, is not " reasonable. "

Other public administrators, however, have pointed out that it is far from unheard of to serve notice on the same day as a hearing, such as in a crisis when a guardian needs to be named immediately.

Sternberg, however, said that was not the case with Flentie. And if the situation were considered an emergency, the court had other options.

" That's what temporary guardianship is for, " he said. Or limited guardianship.

In October 2013, Sternberg presented oral arguments to the appeals court.

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Long wait

Flentie waited seven months for the decision. On May 6, it came down:

Appeal denied.

The court reasoned that because Flentie's court-appointed attorney at the original hearing did not object to the " same day " service of the notice, failed to appeal and later went forward with a restoration hearing, Flentie had " waived " his claim that the law was violated.

On Tuesday, the Supreme Court issued no opinion in denying Sternberg's application to hear the case.

Now, Flentie said, he will have to look for other ways to reclaim his former life: consulting more doctors, hiring an additional lawyer, filing another petition for restoration.

" I understand that Mr. Flentie, like many individuals placed under guardianship and conservatorship, is unhappy with his circumstances, " Clemens wrote. She continued in another email.

" First, the ultimate decision to terminate the guardianship and conservatorship always belongs to the probate court and not to me, " she said. " … Secondly, in evaluating whether a recommendation of restoration is warranted, I look at many factors. "

Medical improvement is only one, she said. Insight into one's problems and acknowledgment of how they came to exist, she said, also are factors.

" I have seen a number of 'revolving door' adjudications following restorations, some with very tragic results. I want to avoid those negative outcomes whenever possible. "

Flentie said the tragedy is already his. Dejected over the high court's decision, he knows his options are now limited. Partial guardianship, a friend as guardian whatever he needs to do to get back home, if his home still exists, he would be open to doing.

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" If I have to spend another 10 months in this place, " he said, " I will go crazy. "

The Star's Judy L. Thomas and Allie Hinga contributed to this report.

To reach Eric Adler, call 816-234-4431 or send email to eadler@kcstar.com.

GUARDIANS, CONSERVATORS AND THE LAW

A guardian is a person appointed by the court to care for and look out for the best interests of either a child or an adult who legally has been determined to be incapacitated or is not fully able to make informed decisions for himself or herself.

A conservator is a person or a corporation, such as a bank, appointed by the court to handle the financial affairs of a minor or for an adult who legally is determined to lack the capacity to handle his or her own finances.

Close relatives, friends or any able adult, such as a foster parent, can become a legal guardian.

In Missouri, when no adult is willing or able to perform the duty, the court appoints the county public administrator as guardian and/or conservator. Laws regarding guardianship can be found at Missouri Statute 475.

In Kansas, which does not have a system of county public administrators, a court will often call upon one of a large network of private attorneys to take on one or both roles. Prime law regarding guardianship: Kansas Statutes 59, Article 30.

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