North Texas couple gets new lawyer, new hope in guardianship case

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September 15, 6:00 PM Bell County Legal News Examiner Lou Ann Anderson


Michael and Jean Kidd have a new lawyer and hopefully a new chance for review of the guardianship imposed upon them by a Collin County Probate Court. The issues to address start with why this elderly Richardson, TX, couple has been forced to spend almost a year in a Pilot Point nursing home when far less restrictive measures seem applicable. Dallas probate attorney Melinda Hartnett is now representing the Kidds and like anyone else hearing this story, she'll likely want answers to many questions.
KDFW/FOX 4 Becky Oliver's most recent report discusses how accountant Michael Taylor, the Kidds' financial guardian, is actually ineligible for that position due to a lack of credentials from the state of Texas Guardianship Certification Board. Regarding his approval of Taylor's appointment, Collin County Probate Judge Weldon Copeland is quoted:
“We sometimes believe someone is certified when they are not,” Copeland said. “Perhaps we should have double checked. It is an opportunity to learn from our mistake here,” he continued.
Thankfully, this "mistake" was stopped from selling the Kidds' home at a Sept. 1 foreclosure sale.
An earlier KDFW/FOX 4 broadcast reported this about the Kidds' financial situation:
“You have no idea how much money you have?” Oliver asked Michael Kidd. “None at all,” Kidd responded. “I know what my income was and I know it was more than enough to take care of my bills. Now, I am deteriorating instead of getting better,” Kidd continued.The monthly tab for a couple at Countryside is about seven thousand dollars. Court records show, for five months’ care, the guardian paid eleven thousand dollars out of the Kidds’ accounts. The state’s Medicaid program kicks in the rest. “I could be at the Hilton for this kind of money,” Kidd told Oliver.The state appointed a financial guardian in Greenville to manage the Kidds money and pay their bills. When they asked for an accounting, the state refused. Representatives for the state stated the Kidds did not have the mental capacity to even ask for their own financial or medical records.
Collin County taxpayers are reported to have paid a $4,000 legal bill for work done by Bert Starr, the Kidds' original, court-appointed attorney ad litem.
That Medicaid - i.e., taxpayers - is paying a portion of the Kidds' nursing home expense is of interest. For taxpayers who believe programs like Medicaid should be a "safety net" only for those truly in need (not the contrived cases of people defrauding their fellow taxpayers by utilizing "Medicaid planning" techniques), the Kidds' Medicaid eligibility is probably worthy of investigation. And if their house was to be sold to fund additional nursing home expenses, what type of responsible guardians turn off the power leaving food spoiling in the kitchen? Why are windows left broken? The house unlocked? The yard overgrown? Perhaps these were more "mistakes"? And to then be listing a house below its appraised value due to neglect? That doesn't sound like a mistake - that sounds like incompetence, irresponsibility and general disrespect for other people's property. Don Ford, a probate lawyer who serves on the Texas Guardianship Certification Board, said:
The guardian’s job is to protect the assets. The judge’s job is to ensure the best course of action is always taken.
It's hard to see how this has been the case with regard to Jean and Michael Kidd. In Is Texas ready to address guardianships and other probate abuse? responses from a politician and an activist were addressed:
Both Senator Nelson and Brenda Durant are correct that now is the time for lawmakers to investigate activities relating to guardianships. However, as probate abuse can also involve wills, trusts and powers of attorney, a review inclusive of all estate administrative functions performed by probate (or other) courts is the true need. North Texas is home to numerous cases of questionable probate activities so while Senator Nelson is well positioned to investigate how DADS could so easily hijack the lives of Texas residents, efforts hopefully will not end there. Only going after a state agency - even one so deserving as DADS appears to be the case with the Kidds - is "low-hanging fruit." Therefore, as Brenda Durant suggests, additional investigation into the activities of county probate courts or other courts addressing probate issues is imperative as these entities have oversight responsibility. Conducting a serious review of all parties involved will be the real test of legislators' willingness to address the confiscation of Texans' liberty and property via corrupt probate venues. The exposure of cases like Michael and Jean Kidd helps educate the public regarding looming threats which probate venues can pose to individuals' liberty and property. A probate court oversees great sums of money and exerts significant influence over the freedom and property of those before it. Being viewed as a "not a lot of action here" venue has allowed the evolution of a problematic culture seen too often today.
People are starting to recognize the power wielded within probate venues. While the elderly are easy targets, disabled or incapacitated people of any age (along with their families!) can be harmed by probate abuse (or "mistakes"). Regarding the Kidds, Houston Single Parenting Examiner Melanie Saxton astutely wrote:
It is a precautionary tale, especially for Texans. If this can happen to Jean and Michael Kidd, who have always been good citizens, then it can happen to you. As a single parent, I feel especially vulnerable to the prospects of questionable guardianships and elder abuse in my future.
Our country's aging demographic along with Texas' current population boom will naturally lead to a potential of more cases like the Kidds. With that, the probate system and supporting agencies cannot go unchecked.
For more info:
Broadcast tells of probate court appointing questionable guardianships (Aug. 26, 2009)
Guardianships can bring unintended, unwelcomed consequences (Aug. 30, 2009)
Estate looting 101: guarding against guardian abuse (Aug. 31, 2009)
North Texas couple avoids home sale while questionable guardianship is reviewed (Sept. 1, 2009)Austin Liberty Beat (Sept. 2, 2009)
Segment 1 Segment 2
Is Texas ready to address guardianships and other probate abuse? (Sept. 9, 2009)

Recommendations to Executive Commissioner Suehs about qualities needed in the next commissioner of DADS

September 3, 2009

Thomas Suehs, Executive Commissioner
Health and Human Services Commission
4900 North Lamar BoulevardAustin, TX 78751-2316

Dear Executive Commissioner Suehs,

On behalf of Community Now! please accept our sincere congratulations on your recent promotion to Executive Commissioner for the Texas Health and Human Services Commission. (HHSC) We look forward to working with you in your new position to develop a long range strategic plan to create a system that supports Texans with disabilities to live in their communities.

Community Now! is a statewide, volunteer, non-profit organization with a mission to support people with disabilities to live in community with the services and supports necessary to be successful. As you know, Texas continues to be the institution capitol of the United States with more people with intellectual disabilities residing in institutions than any other state. With almost 100,000 people with disabilities on waiting lists for community services, Texas continues to operate an unbalanced service system wasting hundreds of millions of tax dollars on archaic, dangerous institutions.

During the 80th Legislative Session, legislators allocated additional funds to comply with the Department of Justice Settlement with the Department of Aging and Disability Services. r However, history shows that institutions are not a safe environment no matter how much money is allocated. We are deeply distressed that the more horrific the reports of abuse and death at state institutions, the more that money is allocated to fix a system that is broken.

Clearly there is a vocal and active group of parents who insist that their choice to keep their adult loved ones in state institutions is honored. Clearly the voices of those parents and people with disabilities who choose to live in the community and languish on waiting lists are not being heard. Community Now! is represented by families who have seen their families destroyed because of their belief that their family member with a disability should live with their family. There are also people with disabilities who are active with Community Now! who are either waiting for their name to come up on an endless list or who are struggling to maintain their services because of an underfunded, poorly monitored community provider system.

Our hope and sincere recommendation is that you will be able to lead a fundamental shift away from the institutional bias and take the leadership role with the Legislature and HHSC professionals to actively create and implement a plan of action that will judiciously get everyone out of institutions who want out and close the facilities no longer needed. Texas continues to band-aid a gushing artery which has brought our vulnerable citizens to a life that is full of violence, a life of frantic waiting, or a life of inadequate community services. None of these options are acceptable. None of them.

We need you to step up and let our legislators know that our current systems are failing, that Texas is grossly mismanaging money by attempting to fund a dual service delivery system. We need you with your sense of budget expertise and program cost analysis to communicate a vision that will utilize tax payer dollars wisely AND provide exceptional services for Texans with disabilities based on the real choices people are making. And people are not begging to go into institutions. They are willing to wait up to 10 years for a shot at their American Dream. 100,000 people are making this choice.

Soon, you will be making a decision about a new Commissioner for the Department of Aging and Disability Services (DADS). This leader is the pivotal person to lead these reform efforts. Those who represent Community Now! are weary, disappointed and frankly disgusted with the previous DADS administration. We as the consumers of DADS services have been admonished diminished, unwelcomed, ignored, retaliated against and patronized by the very leaders put in place to serve us. Our sincere hope is that all individuals who played a part of the past administration are terminated with all haste.

We make the following recommendations to you and your search team as they consider the appointment of the next Commissioner at DADS:

We recommend that the next Commissioner is recruited from another state with a proven record of reforming long term care services. This is necessary as previous Commissioners and leadership have “grown up” in the failed Texas system and have little vision past these failures.
We recommend that the next Commissioner is a leader with the conviction to make recommendations to our legislators that serve the choices of the vast majority of Texans, which is community services, not institutional care.
We recommend that the next Commissioner actively seek out, recognize and welcome ALL consumers and family members of DADS services.
We recommend that the Commissioner seek creative ways to communicate with consumers and family members not only through traditional channels, but also through open, creative methods that build relationships based in trust rather than fear and admonishment.
We recommend that the Commissioner actively communicate the status of DADS progress in meeting the conditions of the DOJ settlement through public hearings and other methods that allow for feedback from consumers and families.
We recommend that DADS serve as a facilitator for the Promoting Independence Advisory Committee rather than control and manipulate the proceedings and outcomes of this critical committee born from the precepts of the Olmstead Act.
We recommend that the new DADS Commissioner immediately take action to hold key leadership accountable by terminating administrators at state institutions for people with intellectual disabilities as appropriate.

Our sincere hope is that your final decision for the new DADS Commissioner will bring to Texas a person with integrity, vision, who is proactive and will work hard every day to serve the people they are charged with to live a quality life in their community.

We look forward to further communication with you regarding our recommendations.