The Atlanta Journal and Constitution; 2/4/2001;
Ann Hardie, Staff
The Atlanta Journal and Constitution After Wayne Thompson suffered brain damage in a car wreck, the court had reason not to trust him with his money. On Monday, a grand jury is scheduled to consider the case of a man the court did trust --- Thompson's former guardian, already accused in a civil suit of misappropriating hundreds of thousands of dollars from the Newnan man's estate.
A criminal charge against a guardian would be a rarity in Georgia. Judges say they suspect guardians are stealing money in every county in Georgia, but the courts lack the resources to catch them. None can recall a guardian ever being prosecuted in the state.
Thompson's former guardian, Newnan lawyer Mark Gomez, repeatedly has denied wrongdoing in media interviews and court records. He has said he followed the law and "dutifully performed my financial fiduciary and other duties."
Coweta District Attorney Pete Skandalakis won't discuss details of an investigation, but he characterized these kinds of cases as "true crimes" and "devastating."
"I think the public would lose confidence if we routinely looked the other way in cases in which there has been criminal conduct," Skandalakis said.
The reality is, all too often, judges and prosecutors do look the other way
Questions about the way Thompson's estate was managed underscore the lack of accountability in the state's guardianship system, which is supposed to protect the assets of tens of thousands of Georgians who are either too young or too impaired to handle their own affairs. Many probate courts that oversee the system don't have the resources or expertise to protect against financial guardians intent on stealing money.
That is the consensus of dozens of judges, prosecutors, attorneys and advocates for the elderly and disabled who were interviewed about the state's guardianship system.
"The sad part is, that is why guardians who choose to break the law do it," said Atlanta lawyer Millard Farmer, who is suing Gomez on Thompson's behalf. "They think there is a good chance of getting by with it."
In most counties, probate judges don't even have to be attorneys.
Guardians who are caught stealing generally must pay the money back but face no other punishment. Probate courts seldom refer these instances to law enforcement.
That may be because prosecutors have been reluctant to pursue them when they are referred, judges say. Prosecutors face many of the same problems the probate courts do --- a lack of resources and an overwhelming caseload.
Prosecutors say investigating guardianship cases, a form of white-collar crime, typically is more time-consuming and complicated than murders and rapes.
cases, a form of white-collar crime, typically is more time-consuming and complicated than murders and rapes.
"There is a lot of truth to the fact that every DA office in this state is understaffed and underfinanced," Skandalakis said. "You do have to make calls on which cases you devote your resources to."
As a result, the neighbor who steals your VCR is more likely to be charged with a crime than the guardian who steals your life savings.
Courts overwhelmed, needy
Most guardians who misappropriate money, judges say, are parents or spouses who do so out of ignorance. But some guardians do it intentionally.
In one of the better known instances, Atlanta lawyer Ronald J. Freeman was briefly suspended from practicing law in 1998 after taking $935 from the estate of an incapacitated woman and giving it to his brother.
Freeman's law partner, not the Fulton County Probate Court, discovered the misconduct. Freeman then informed the court and the State Bar of Georgia of his actions and paid restitution.
The case took the legal community by surprise. Freeman, who faced the possibility of disbarment, had served as president of the Gate City Bar Association and member of the Atlanta Bar Association's judicial selection committee.
Freeman's psychiatrist said clinical depression had contributed to his actions. Dozens of influential people, including then-House Speaker Newt Gingrich, wrote letters or testified on his behalf. He was suspended from practicing law for 90 days. No criminal charges were filed.
"I made a big mistake and I accepted the consequences of it and I've moved on," Freeman said.
Even the most vigilant probate courts are hard-pressed to uncover misconduct.
The reason, in part, is the sheer volume of guardianship cases in Georgia. No one even knows how many there are, because probate courts aren't required to keep those numbers.
In 1998, 10,552 new guardianship cases were opened in the two-thirds of Georgia counties that reported their caseloads. The figure does not include ongoing cases.
DeKalb County Probate Court alone handles an estimated 3,000 to 4,000 cases. Last year, the court removed 32 guardians for misconduct and ordered restitution in 20 cases. "We catch a lot of people," said DeKalb Probate Judge Marion Guess. "I'm sure we let some of them get by."
Since taking office in 1993, Gwinnett Probate Judge Jim Clarke says he has removed dozens of guardians for misappropriating funds and recovered more than $700,000 for estates under his supervision.
Clarke also began requiring guardians to file original bank statements verifying the funds in the estates. Copies of bank statements are no longer acceptable since he discovered firsthand that guardians found those easier to falsify.
"If you look hard enough, you will find problems," he said.
Some probate courts look harder than others. In Fulton County, three employees scrutinize an estimated 1,100 annual reports filed by guardians to detail their spending. The County Commission recently funded several new positions for the court's oversight of guardians.
Most counties aren't so receptive to the court's needs. Depending on the county, the duties of the probate judge can include everything from probating wills to hearing traffic cases to supervising elections to issuing marriage and gun licenses.
State law requires probate courts to "carefully examine" the guardians' annual reports, but some judges say they simply don't have the time or the staff to obey the law.
"If the probate court isn't going to do it, who is?" said Eleanor Crosby, chairwoman of the State Bar of Georgia's elder law section. "This is somebody's life. The court is in the best position to see if something is wrong and to correct it."
As it is now, most courts largely defer to the honesty and integrity of the guardians they appoint, probate judges say.
Managed dozens of estates
That is what Coweta Probate Judge Mary Cranford did when she named Gomez as Thompson's guardian in 1995. Thompson, 49, had won a multimillion-dollar settlement after sustaining a brain injury in a collision with a tractor-trailer.
While he can watch TV and tell a good joke, he is incapable of tasks that require more thorough reasoning, such as balancing his checkbook or budgeting his money.
Around Newnan, Gomez, 36, is known as a winsome and convincing trial attorney. He earned his law degree at Wake Forest University in Winston-Salem, N.C., and worked as an assistant district attorney for Skandalakis before entering private practice.
In 1994, Gomez was appointed the county's guardian, a job that required him to step in when the Probate Court had no one else to appoint. Judge Cranford said she chose Gomez because he had the time and was willing to do the job. Over the years, he had managed dozens of estates.
But it wasn't long after he took over Thompson's money that people began raising concerns.
For two years, Thompson's family, medical team and Thompson himself complained to the court about possible misconduct and questionable expenditures.
Judge Cranford continued to put her faith in Gomez. She said she does not have the resources to hire investigators. Ultimately, she trusted Gomez, she said, because he is an attorney. "He is supposed to have a higher standard," Cranford said.
The Probate Court in Mobile, Ala., used to think that way until it learned an attorney there stole millions of dollars from the estates he managed.
In 1996, the former president of the Mobile County Bar Association, Thomas Bryant Jr., was convicted of stealing $3.2 million from six accounts. Bryant currently is serving a 120-year prison sentence.
"He did it to the old, the young, the infirm," said Tom Harrison, the Alabama prosecutor who tried the case. "It is not acceptable for anybody to do it. But it is especially horrendous when you start talking about a lawyer entrusted by the court to protect people."
The civil lawsuit against Gomez claims he "used his slick tongue, persuasive mannerisms and knowledge of the law to outwit and deceive" the Probate Court.
Judge Cranford is not an attorney. In Georgia, probate judges in all but the state's 14 largest counties don't have to be. Some question the wisdom of that law.
"Probate judges in smaller counties are eight parts politician, 1 1/2 part lawyer and half-part accountant --- that's a bad mix," said Farmer, the Atlanta lawyer who filed the suit against Gomez two weeks ago. "As honest as a probate judge wants to be, if they don't have a base of knowledge about accounting or the law, they can't fulfill their functions as the law intended."
Tax expert and auditor
The work of an accountant is integral to the civil and criminal cases against Gomez.
Thompson's family asked Rhonda McClendon, a certified public accountant, to serve as guardian when Gomez resigned in October 1999 in the midst of the district attorney's criminal investigation.
McClendon, a tax expert and auditor, also is experienced in ferreting out misappropriated funds. Over the years, corporations and state and local governments have employed her skills on embezzlement and theft cases.
For the past year, McClendon has concentrated on Thompson's situation. It hasn't been easy.
She said her firm has spent 751 hours --- the equivalent of 18 work weeks --- poring over bank accounts and reconstructing every transaction Gomez made during his four years as guardian.
"There were records missing," McClendon said. "We had to go back and get them from banks and vendors. That is always difficult. And there were so many years involved."
In the civil suit, McClendon claims that $225,364 from Thompson's estate was misappropriated or spent needlessly while Gomez served as guardian. Gomez used Thompson's money, the suit says, to pay himself unjustified legal fees, purchase computers for his law practice and install a hot tub Gomez used for sexual encounters.
Gomez's response to the lawsuit has not yet been filed.
But in an earlier affidavit responding to a different matter, Gomez said "no unnecessary expenses are being paid" from the estate and that he had foregone some commissions he had earned for managing Thompson's money. In his defense, he said the Probate Court had signed off on his annual reports.
In a 1999 letter, Judge Cranford wrote that she "reviewed the last two annual returns . . . and find no inappropriate expenditures."
The district attorney's office is relying on McClendon's investigation to help make its case. "It is a tremendous advantage to have someone who has a forensic accounting background working with you," Skandalakis said.
Probate judges say they really could use that kind of expertise in their courts. That would require money they currently don't have. Even the most aggressive courts say they detect only the most obvious misconduct in reviewing the annual reports.
"It is not hard for a motorcycle being bought for a 90-year-old to catch your eye," DeKalb's Judge Guess said. "But if someone has a sophisticated scheme, they'd fool us."
Hiring accountants, he said, would be the best way to detect wrongdoing.
"Then you'd probably have to hire extra judges to deal with everything they'd find," he said.
The courts could report guardians who steal to prosecutors. They almost never do.
Instead, probate judges are more intent on recovering stolen funds. "To me, the most important thing I do is ensure the money is there," said Clarke, Gwinnett's probate judge.
In Georgia, guardians are bonded for the value of the estates they manage. Typically, judges who uncover misconduct go after the bond and leave it up to the bonding company to go after the guardian.
But the bonding companies aren't interested in seeking criminal charges. A guardian can't repay them sitting in jail. Most prosecutors, overwhelmed by cases and strapped for resources, aren't that interested in pursuing these cases either, judges say. Especially when the victim has gotten his money back.
Harrison, the Alabama prosecutor who convicted Bryant, says that shouldn't matter. Bryant's bonding company repaid most of his victims.
"If I walked into a bank and put a gun in a teller's face, would they prosecute me?" Harrison said. "He did the same thing, only with a checkbook. All he had to do is sign his name."
Skandalakis would not predict the outcome of the Gomez case. But he left little doubt he took a particular interest in the case because Thompson is disabled and Gomez is an attorney.
"I took this job to help those who can't help themselves," Skandalakis said. "I do believe you should hold certain individuals to higher standards. You should hold attorneys to higher standards."
ILLUSTRATIONS/PHOTOS: The district attorney is looking into allegations that Mark Gomez (above) stole money from Wayne Thompson's estate
Wayne Thompson, being groomed by caregiver Pauline Bohanon, needed a guardian after a collision left him brain-damaged. / SUNNY SUNG / Staff
How Georgia's guardianship system works:
The system was created to protect the estates of vulnerable Georgians so they don't become a burden to the state.
Probate courts in each of the state's 159 counties appoint financial guardians for adults judged incapable of managing their money for a variety of reasons, including mental illness, mental retardation or chronic drug use. Adults requiring guardians lose their right to spend their money as they wish and to enter into contracts, such as marriage, without the court's permission.
State law lays out a pecking order that the court must consider in selecting guardians. The wishes of the incapacitated adult, also known as the ward, should be given the highest priority, followed by a spouse, an adult child and so on. The judge can ignore the pecking order for good cause.
Each county's Probate Court has identified someone, often an attorney, to step in as financial guardian in the event a family member is not available.
Anyone, including a proposed ward, may petition the court for a guardianship. The court appoints a physician or psychologist to evaluate whether the person should be declared incapacitated. If there is probable cause that a guardianship is needed, a hearing is scheduled. The proposed ward is entitled to an attorney.
Georgians younger than 18, such as the beneficiaries of life insurance policies or legal claims, also may require guardians to oversee their financial affairs. Usually, courts appoint parents to serve as guardians.
The estate must be spent on the care and well-being of the ward and his or her dependents. In general, financial guardians are entitled to a 2.5 percent commission on the income and expenditures of the estates they handle.
For more information
Contact: Your county's Probate Court
Georgia Senior Legal Hotline, 404-657-9915 (toll-free at 1-888-257-9519)
Georgia Advocacy Office, 770-414-2940
Accountant Rhonda McClendon claims the former court-appointed guardian of a Newnan man misspent $225,364. / W.A. BRIDGES JR. / Staff
GUARDIANS IN GEORGIA
Tens of thousands of Georgians are believed to fall under the state's guardianship system. No reliable totals are available for ongoing cases, but here's a look at new petitions for guardianships*:
*Based on reports from about two-thirds of Georgia counties.