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Information in this article, originally published December 3, 2006, was corrected in January 2007. A previous version of this story incorrectly spelled the name of King County Court Commissioner Kimberley Prochnau.
Your Courts, Their Secrets
A son struggles to reveal how lawyer was treating his mother
Seattle Times staff reporters
Dean Libey sat in the courtroom, stunned. He couldn't believe that a judge would even consider hiding this file away.
For more than a year, Libey had been filing complaints about Spokane lawyer Tom Robinson, a guardian appointed by the court to care for Libey's 69-year-old mother. Four-feet-10 and 100 pounds, fluent in four languages, Libey's mother now struggled with dementia and needed constant help.
Robinson was overbilling, Libey told the court, and blowing through his mom's savings. Worse, he hired unqualified people and didn't supervise them, not even writing out medication instructions. One of Robinson's hires described himself as "a construction worker, not a caregiver."
Since Robinson was a professional guardian who cared for dozens of elderly and disabled people, these were troubling complaints — the kind you'd like to know about if you were looking for someone to care for your mother.
Under state law, you have a right to see that file. But in that Spokane courtroom five years ago, that right was taken from you, just as it was taken from Libey. At Robinson's request, the court sealed the entire file — locking away a son's frustrations and his potential warnings to others.
To safeguard society's most vulnerable people from exploitation or neglect, courts grant guardians extraordinary powers. To prevent abuse of those powers, courts retain oversight. The public, in turn, oversees the courts; accountability is a chief reason the courts and their files are presumed open.
But in Washington, secrecy has often replaced accountability, The Seattle Times' ongoing investigation into improperly sealed court records has found.
Courts across the state have sealed entire files in at least 398 guardianship cases since 1990, the statewide investigation determined.
Most of those files — 266 — were sealed in King County. The Times has gone to court and gotten some of the cases opened.
The law imposes demanding requirements for sealing a file. A judge must find that "compelling circumstances" exist for secrecy; determine that they outweigh the public's right to open courts; and explain the reasoning in a written order.
The Times was able to examine sealing orders for 376 of the sealed files.
They reveal that Washington judges failed to apply the correct legal standard in 97 percent of the cases, instead using a lower standard or none at all. In two of every five cases their orders provided no reason for secrecy. They weighed the public interest in only three cases.
Instead, court officials have sealed one file after another at the request of those who could have the most to gain from secrecy: the guardians themselves.
Guardians like Robinson — a man who would be investigated for problems in at least 20 other guardianship cases and who had been disciplined by the Washington State Bar Association.
Where to learn more
You can get advice about guardians at the AARP Web site: www.aarp.org, or by calling 888-OUR-AARP.
That day in Spokane, Robinson argued there was "absolutely no reason" anyone should see the file.
"It potentially damages my reputation," he said during a taped hearing.
Nervous, Libey stammered to the judge: "I'm my mother's son. I, I, I see no reason why that file should be confidential."
Commissioner Valerie Jolicoeur was unmoved. The file wasn't created for the public, she said. "This is simply a file to make sure your mother is protected."
But how, Libey wondered, could a secret file protect his mother?
Where checks and balances no longer apply
Send your comments or complaints about guardianships to firstname.lastname@example.org
It can happen to anybody. Accident, age, mental illness or medical condition makes you unable to care for yourself. When that happens, a court might appoint a guardian, declaring you a ward of the court and casting your lot into a branch of law where the typical checks and balances don't apply.
The court sometimes appoints a family member to take on this difficult task, usually for free.
Other times, judges appoint professional guardians, members of a growing field that has turned family matters into a thriving private industry. Washington has 245 certified professional guardians and 39 guardianship companies.
Some are mom-and-pop operations while others are big businesses, overseeing the lives of hundreds of wards and controlling more than $100 million in assets.
Guardians often take charge of medical care, food, bill-paying, house-cleaning and countless other tasks of daily life. They may also handle the ward's finances, from meager bank accounts to multimillion-dollar trusts.
In not one case did judges meet the three requirements.
Some guardians have protected wards from scam artists and thieving relatives, allowing the vulnerable to live in dignity.
But there's a bit of Big Brother in every case. The law says a ward — "incapacitated person," in legal parlance — may lose the right to marry, sue, make a will, even decide on medical treatment. Guardians can limit family visits. They can sell a ward's house to foot the bills.
They can do all this because it's supposed to be for the ward's own good — whether the ward agrees or not.
Often, there's no one in court to oppose the guardian's requests. That's unlike most other areas of the law. In a medical-malpractice case, for example, you hire a lawyer, the doctor hires a lawyer, and they battle in court. Each side is a check on the other. But in most guardianship cases, only the guardian speaks for the ward.
By law, judges and court commissioners supervise guardians by regularly reviewing reports that detail care and costs. They're required to sign off on everything. But annual hearings often last mere minutes. A busy court official with a crowded docket can't scrutinize every charge, so problems such as double billing may be overlooked.
Commissioner Carlos Velategui, who handles guardian cases in King County, complained that he is expected to master complex accounting, investment strategies and what constitutes proper medical care — all while keeping cases moving. "I read them and I look for the outrageous," he said.
Some judges say there's good reason to seal entire guardianship files: to protect the financial and medical information of the wards.
But courts can black out account numbers in the public case files. The law says sensitive medical or financial information should be filed separately under seal, leaving the bulk of the documents open for inspection.
Some lawyers get files sealed so often it seems almost routine. James Degel, a Seattle lawyer and professional guardian, has gotten at least 76 cases sealed since 1993. Many of his requests are virtually identical, citing generic reasons rather than the specific explanations required by law.
Sealing files was simply part of the culture, Degel said.
It was chaos — and costing a bundle
The way Dean Libey, 54, remembers it, "we had nothing but problems with Robinson from the beginning."
In 1999, a neighbor took Libey's mom, Evy Hohner, to see an attorney about getting her financial matters in order. He referred them to Tom Robinson, a lawyer and professional guardian.
Hohner had survived the Nazi occupation of Norway, then came to Spokane where she married and raised three sons. She decided in her 50s to begin taking college classes just because she wanted to learn. She had a trusty 1970 Ford Pinto she called Sally, and until the late 1990s, she got around just fine.
But dementia eroded her self-sufficiency. Libey moved from Everett to Spokane to care for her: cooking, cleaning, shopping and reading to her. Sometimes, Hohner was abusive, a common symptom of dementia. Libey admits sometimes snapping back.
Without telling the family, Robinson went to court and asked to become her guardian, citing those disagreements.
Libey argued that Robinson was a stranger, that family should take care of his mother.
Nonetheless, a court commissioner ruled in Robinson's favor in 2000, reasoning that a professional could best handle the situation.
At this point, Robinson already had nearly 50 cases and was struggling to keep up. He was overdue with mandatory reports in more than two dozen cases, a court commissioner later found. Robinson didn't even have a system to tell him when reports were due; he'd simply wait until the court told him he was delinquent. Meanwhile, creditors complained to Robinson's staff that the wards' bills weren't getting paid. In some cases, Robinson didn't notify the court when wards died.
The court later found him responsible for "persistent and repeated" violations of guardian rules. The state Certified Professional Guardian Board also disciplined Robinson for these serious lapses.
While trying to become Hohner's guardian, Robinson also was under investigation for his work as a lawyer. The bar reprimanded him in 2001 over his handling of an estate. Robinson hadn't alerted the court to a deceased father's $194,000 bank account, instead letting one of the daughters claim it, bar records say. By the time her siblings realized what had happened, she had made off with most of it.
Libey said Robinson didn't do right by his mother, either.
Caregivers often didn't show up, court records show. When they did, Robinson hadn't left instructions. What did Hohner like to eat? What medications did she take? "Just ask Evy," one caregiver told the next, apparently not understanding Hohner's dementia.
Robinson did bring in at least one experienced caregiver, who set up a medication schedule and daily logs.
But she couldn't convince the other help to go along. When asked to do Hohner's laundry or other chores, one man replied that he was "a construction worker, not a caregiver," documents show.
The woman later told the court that in 20 years of caring for the elderly, "I have not run into a situation like this."
Robinson said he provided good care for Libey's mother and that her son's complaints were ridiculous and harassing. He also accused Libey of "intimidating" the help and causing them to quit.
An investigator didn't find evidence to support Robinson's charges.
Meanwhile, Libey said his mother's care was in chaos. And it was costing her a bundle. When Libey finally saw the accounting, it made little sense. Robinson kept an envelope with $400 in cash in Hohner's house for daily expenses, a strange practice considering the rotating cast of aides.
By September 2001, guardian fees and legal fees cost Hohner $27,000, nearly half going to Robinson.
An investigator later determined that the care, while questionable, didn't harm Hohner. And the court approved Robinson's fees.
But Libey did accomplish one thing. In May 2001, Robinson agreed to resign. At the same time, he asked to have the file sealed. By law, Robinson had to show "compelling circumstances" to keep the records secret, a high legal standard.
But he flipped that standard on its head and placed the burden on Libey. "Mr. Libey has presented not one shred of information that would suggest it is appropriate to open up this file," Robinson said at one hearing.
He got his wish. The court that had entrusted Hohner's care to Robinson closed the records showing how he did that job.
At least three times, Libey asked the court to open his mother's file. Each time, the court said no. "The whole reason that it was sealed was so Mr. Robinson could hide what's in it," Libey said.
Robinson said in an interview: "I didn't want allegations that clearly had no merit finding their way into the public and hurting a business I had just started."
A ward gets nickeled, dimed and dollared
Guardians and lawyers sometimes generate high fees in caring for a ward. But if the case is sealed, the public has no way of assessing the costs. In the case of Violet Sullivan, her guardianship records and six-figure annual costs were improperly kept secret for years.
In 1995, when she was 82, Sullivan's life was a mess. After one of her sons was accused of siphoning more than $100,000 from her $750,000 estate, the King County court put her under a guardianship.
But in just the first year, that guardianship cost her more than the alleged losses, draining $167,000 from her assets, including fees for guardianship companies, court investigators and her own lawyer.
One telephone conference call among the guardian, Sullivan's lawyer and the investigator cost Sullivan $462, with all three charging for their time separately.
In 1997, the investigator asked for the file to be sealed, saying Sullivan was a private person and vulnerable to exploitation. Commissioner Scott Reiman granted the request.
Earlier this year The Times tried to get the file opened, only to discover that the sealing order had been rescinded years ago. But all this time, the case continued to be kept under seal.
After The Times brought the error to the court's attention, the file was opened.
It shows that guardians and lawyers involved were aware their fees were high, but they attributed them to the case's complexity and to disputes initiated by Sullivan's sons.
Sullivan was under a guardian's care for less than four years, but the court file runs 2,945 pages. The court approved every fee, but the volume and types of charges illustrate how costs can build up.
Year after year, fees for lawyers and her guardian eclipsed her annual nursing-home costs of about $41,000.
Her 85th birthday celebration was among the charges filed by her guardian, Care Planning Associates. Coffee, cake and a visit from a case manager: $165. Birthday presents: $49.13. Telling a supervisor how the visit went: $5.50.
After she moved to Montana to be near a nephew, Care Planning billed Sullivan $3,300 to close out her case and write a final report. When the nephew's lawyer challenged the charges, the company cut the bill by $1,000.
Sullivan died in 2002.
A change in direction
The Times found many cases where judges and commissioners disregarded the rules limiting secrecy.
One Pierce County judge sealed a guardianship case because a woman's neighbors were curious.
A lawyer in another case got a file sealed by citing "pending litigation." But then a second lawyer argued the file should be unsealed for the very same reason. So King County Court Commissioner Stephen Gaddis, now retired, unsealed the file — but for that lawyer's eyes only.
The courts recently have made an about-face. Not one case has been sealed in its entirety in King County since the "Your Courts" series began in March. The King County court said it will decide this month whether to begin opening its sealed guardianship cases.
Snohomish County is beginning to unseal 14 guardianship cases; Whatcom County is planning to open its one sealed case.
Degel, the Seattle guardian with scores of sealed cases, has asked the court to open his 49 cases in King County. He plans to ask for his cases in other counties to be unsealed as well.
He attributed his change of heart to state Supreme Court rulings and recent Times articles on court secrecy.
"People should have a right to see [the files], to determine whether I'm doing my job or the court is doing its job," he said.
In November, Degel appeared before Court Commissioner Kimberley Prochnau with a list of 20 cases. She cited laws governing openness and methodically stamped one page after another, saying "The court does unseal these files."
In Spokane, the court took two months to provide The Times with one of the orders sealing Hohner's file, though it's a public record. Then, the court blacked out nearly every word.
But after a judge on a statewide open-court committee intervened, the Spokane court said it would open the Hohner file, unless someone could show a compelling reason to keep it closed.
Hohner, now 75, is in a nursing home. She can't recognize her own children. But she has a new guardian, one that Libey is happy with.
"The sealing of my mother's file is a symptom of a greater illness that plagues the court," Libey said.
In October, Libey's quest of five years ended. His mother's file finally was unsealed.
Reporter Ken Armstrong and researcher David Turim contributed to this report.
Maureen O'Hagan: 206-464-2562 or email@example.com
Cheryl Phillips: 206-464-2411 or firstname.lastname@example.org
Copyright © 2006 The Seattle Times Company