Tuesday, February 15, 2011

Elder Abuse Hits Home: "The Clara Fernandez Story."

AS we get closer to Clara's 93 birthday we thought appropriate to reprint this article

by Rhonda Linseman-Saunders : Key West The Newspaper




Exemplified the American dream, especially for Cuban exiles. In 1965, after Fidel Castro took power in Cuba, Dr. and Mrs. Fernandez lost their successful private medical clinic and newly-built home. The new regime seized the property and turned it into a truck stop.

The Fernandez family escaped to the United States and ultimately settled in Key West where Dr. Fernandez built a successful medical career, including having served as the Monroe County Medical Examiner for more than 20 years.

As many know, the Fernandez family would became one of the most respected and beloved families in Key West.

Clara was known as the financial wizard behind the family’s successful business and investment decisions, but she still made time for tireless involvement in many civic and community organizations.

At that time, Clara could never have imagined that years later, as a widow, she would find herself, once again, on the verge of losing everything that she and her husband had worked for in their adopted country. But she is.

This time, however, she is not the victim of a communist dictator. Instead, she is the victim of our own American legal system, which apparently allows the systematic and abusive bilking of the elderly by predatory lawyers. The scheme is called the legal guardianship system.

Clara Fernandez, now 89 and disabled, is quickly being fleeced of all the Fernandez family assets, once estimated to be worth several million dollars.
Ostensibly insensitive judges have allowed a series of apparently greedy local lawyers, purporting to act in Clara’s best interest, to rack up tens of thousands of dollars in fees to seemingly do nothing except suck up what is left of Clara’s estate.

Son Fighting an Uphill Battle to Save His Elderly Mother’s Estate from the Lawyers -

Key West the Newspaper has seen evidence of “guardian lawyers,” appointed to “protect” Clara, hiring other “guardian lawyers,” and then all the lawyers threatening legal action to assure they are all paid. But for what? Most of the lawyers involved have reportedly never even met Clara or been to her home.

They have reportedly confiscated Clara’s $1800 monthly Social Security check and other assets. But Clara’s son, Raul “Ray” Fernandez says that many of the bills the lawyers are then supposed to pay are paid late or not paid at all.

The Internal Revenue Service is now sending notices. Property taxes on the beautiful Key Haven home Clara and her husband built in the 1970s are reportedly in arrears. Ray says he fears that foreclosure may be looming.“What is sad here is that my mother always prided herself on paying her bills on time,” Ray said. “But the account she used to ensure automatic payment of the utilities and other bills has been emptied by the lawyers.”

What also appears to be unnecessarily tragic here is that Ray is perfectly willing and able to take care of his mother— and in, fact, has been providing that care for years, with the help of family and friends. He says he has paid, and continues to pay, thousands of dollars out-ofpocket for expenses the “guardians” should be paying out of the funds they are redirecting to themselves from the estate. But the judges—originally Judge Richard Payne and now Judge David Audlin—perhaps due to pressure from the lawyers who don’t want to lose their golden goose, have refused to appoint Ray as his mother’s guardian.

The tale of how this came to be is the stuff of a novel of intrigue and betrayal. Clara’s life began to crumble in 2004 when her other son, Al, came down from Winter Haven and offered to take his mother home with him for a visit.

“But it was more like an abduction,” Ray said. “Al and his life partner, Bill Hart, kept her against her will for more than a year. My father and I drove up there and tried to bring her home, but Al and Bill would not allow it.

In the meantime,” Ray alleged, “they overly medicated her and got her to sign over the Key Haven house and other assets to them.”

Ray appealed to the State Department of Children & Families (DCF) office in Polk County, initially to no avail. But eventually, he said, he was able to convince the DCF director there to refer the case to the State Attorney. Ironically, however, when the DCF director suddenly died, so did the case.

Then somewhere along the way, in dealing with DCF and law enforcement officials, Ray said he was counseled that, if he set up an “emergency guardianship,” he might be able to get his mother back.

Ray’s cousin, Dr. Manuel Pena of Naples, Florida, agreed to act as Clara’s guardian. With that authority, law enforcement officers were able to rescue Clara.

And Ray brought her back to her home in Key West. But it was too late for Dr. Fernandez; and it was almost too late for Clara.

Ray said after the stress and confusion caused by being separated from his wife of 56 years was too much for his father. He died soon after. And during the year in Winter Haven, Clara, reportedly heavily sedated, fell in the shower, had a stroke, and is now confined to a wheelchair.

According to Ray, Dr. Pena soon asked to be relieved from guardianship duties because of alleged harassing phone calls by Al and Bill. So Ray asked Key Wester Angela McClain, one of Clara’s longtime friends, to assume the guardian role.

And he hired Attorney David Paul Horan to help Angela try to recover some of Clara’s assets that had allegedly been stolen by Al and Bill. “But Horan didn’t help us at all,” Ray Fernandez said, “In fact, he told the court that I was taking money from my mom, even though the DCF repeatedly investigated me and found absolutely no evidence of that!

I was in complete shock, as were my family, friends, and neighbors who knew how I had been caring for my mother, and for my father before he died.” Ray Fernandez said, “Al and his life partner, Bill Hart, kept her against her will for more than a year.

Lawyers: “Just Sign This,and Everything Will Be Okay” -

Ray said that Horan then tried to sell him on a “mediation package” that would allow some resolution with his brother. But after consulting with another attorney, Ray said he realized that the deal would have placed all of Clara’s assets into a new trust fund— and Horan would have been the overseer. Ray refused to sign.

At a hearing later that day, Angela McClain told the judge that she was resigning as guardian because she couldn’t handle the pressure. And Horan immediately recommended to the judge that his good friend Bob Tischenkel be named as Clara’s guardian. That apparently was okay with Judge Audlin. Done deal!

Ray complained, to no avail, that there’s a little something called due process required by Florida statute that requires all interested parties to be noticed when one guardian resigns and another guardian is appointed. That reportedly did not happen in this instance.

By coincidence, Tischenkel, who had recently retired as Key West City Attorney, shared an office with Attorney and former City Commissioner Ed Scales, who, by coincidence, had just mediated the aborted deal that would have put Horan in charge of Clara’s assets.

In any event, Tischenkel immediately began billing to get his share of the loot. But he reportedly soon resigned after Ray began to re-publish old news articles about Tischenkel on his Elder Abuse website.

Reportedly, some of the articles were editorials from Key West the Newspaper commenting on Tischenkel’s questionable performance as Key West City Attorney. Audlin then named Donald Yates as Clara’s guardian—again without due process, Ray alleges. Meanwhile, Clara Fernandez’ future remains very uncertain.

“The Probate Cartel has got to be stopped,” Ray Fernandez said this week. He has started a national Elder Abuse organization (http://www.elderabusehelp.org/) to give support to other families who are being victimized in the same way that he says the Fernandez family is being victimized. Through the organization, Ray is learning that what is happening to his mother is not an isolated case.

“When cases of elder physical and financial abuse fall through the cracks of the legal system, it is a cause of great concern for us all,” Ray said. “It’s time to admit that our system of justice isn’t always working to protect our elders when it’s most crucial to do so. We’d like to help make it better so that those who come after us can benefit from our experience.”

Reprint from 5-20-07


Anonymous said...

Why didn't Ray apply to become his mother's guardian???

Ray said...

The short answer is the court told me that I would not qualify as a guardian because I disagreed.

I thought my mother's wealth should remain in her Trust and in her possession until after her death.

Another family member thought that her homestead,trust and all her assets should immediately liquidated and distributed and she should be put in a nursing home or ALF regardless of her estate Planning Documents or wishes.

The courts see this as good enough reason to step in and take over, and automatically revoke all the civil rights that the person (elder) here to enjoyed they call this in-fighting or family quarrel.

See "Ten Reasons People Get Railroaded into Guardianship"

by MARGARET K. DORE, Attorney at Law


Anonymous said...

Oh my God!!
The lawyer and the quardian were trying to "rail-road" you Ray,..
you can be sure it was decided that you should "give away your parents 'farm' well before you knew",..make no mistake about it!!

You would have been "rail-roaded" at the expense of your parents estate!!

They indeed wanted that "Golden Goose" for themselves, such greed and deception prevails in the good ole U.S. of A. !!!!!

Good luck Ray, and never give up, never give in, fight to the death!

Never abandon your mother, she never gave up on you!

~ Lydia Nelson - Canada

Anonymous said...

Thanks so much Ray.

I'm sorry you are having such a hard time. I met David Horan many years ago. He has alwasy seemed like a dark, greedy, evil, lazy, selfish and dishonest man. I've been reading everything you send and it's just unbelievable. I hate those people for what they are doing to you.

I've also been sending the e-mail letters to the people you asked us to in your e-mails.

I pray that you are rescued from this horrible torment soon and things are settled in your favor.

I can totally see and understand what you say about KW lawyers. I'm so sorry you have to go through this. It's CRIMINAL.

Anonymous said...

For The Fernandez Family that have once lost everything to a corrupt system in Cuba, to now have to go through it all over again at a much higher price, "their lives and their sanity", with no way to ever re-build the estate and their lives because of their health and age is a complete nightmare!
From her eldest son that abducted her, to his life partner showing that brother how to fleece her of everything, to the crooked cops, sheriffs, DCF agents, guardians, and numerous other lawyers that jumped into to the 'feeding frenzy', to the judges and courts that allowed all of this to happen, may God have mercy on your souls as we all pay for our sins in the end,..if not sooner!!

Anonymous said...

The Way It Really Is!

Litigants in a dispute may think that when they go to court, the two sides will both calmly tell the truth, and then a judge will calmly make a ruling.

The following story may give you pause for thought. This story shows that when the family of an elderly incapacitated person goes to court against certain types of lawyers, the victim and their loves ones better be prepared for anything - including this dirty pool lawyering.

Anonymous said...

It is amazing that this case is still ongoing, after several years. The guardianship system, originally set up to better protect seniors, must have benefitted many individuals. However, when there are loopholes in the system, that allow the system to sanction abuse of the very people it is supposed to protect, something MUST be done URGENTLY to stop the abuses.
Clara is now 89 years of age. When will she be able to feel safe from "harassments" from guardians and lawyers, who are "syphoning off" her hard-earned assets?Is there a judicial conscience? Why do the American Bar Association allow this case, and many other similar cases to drag on and on. Often, the subjects of these cases die before any resolution; that can be considered satisfactory to the family members.
Is the legal professional body proud of their members involved in such cases?~ by Andrew.- Spotlight on Elder Abuse