Allegation
She executed a document which had the effect of appointing herself as agent, under a general power of attorney, for a developmentally disabled individual, over whom she served as guardian, while he was still under guardianship. The document was witnessed by the ward’s wife, who was similarly disabled, and notarized by Ms. Marino. Judge Cassavechia found the that document was obviously defective, endangered the validity of all transactions completed during its roughly six-year existence, and highlighted the public policy concern of a professional guardian arranging for the grant of broad agency power for herself that will extend beyond the termination of the then-existing guardianship, without any oversight by a court or even the participation of an independent notary.
Response
(Click on Attachment for supporting document)
Significant to these findings is the matter was brought up the morning of the disciplinary hearing (Attachment 1), with no opportunity for either me or counsel to review a temporary guardianship that had closed 4 years prior. There was no inquiry by, or evidence offered at the disciplinary hearing, to support either the conclusions, findings or statements by Judge Kelly or the Special Administrator. In fact, almost all the conclusions of the Special Administrator were based on erroneous information and presumptions.
The Special Administrator stated in the Disciplinary Recommendation “Ms. Marino petitioned and was court appointed guardian over his person and estate as his wife, A.R., who is also disabled, was unable to make decisions for her husband.” (Attachment 2). With regard to the DPOA (Attachment 3), he observed the DPOA was signed “by a principal still under guardianship and witnessed by a challenged person who apparently was herself unable to act as agent for her husband.” He further stated he remained “concerned Ms. Marino operated as agent under it for approximately six years, potentially endangering the validity of the transactions completed pursuant to it”. (Attachment 4)
Had there been any proper investigation which would have given me the opportunity to review the allegation and records, it would have been revealed that I was appointed co-guardian with W.R.’s wife (Attachment 5), as she was not incapacitated or incapable of making decisions for her husband. She asked me to serve as co-guardian primarily as her cognitive limitations made it difficult for her to understand the complicated medical information provided by physicians and hospital staff. I agreed to act as co-guardian at no charge.
Although at the time W.R., signed the DPOA in early December 2010 while he was still technically “under guardianship”, the court had been notified by petition to terminate guardianship, that W.R. had made a full recovery in October 2010. Both ethical and legal obligations as a guardian require that when a ward regains capacity, the guardian may no longer act or make decisions, especially if the basis was physical and not mental incapacity as was the circumstances in this matter.
As I represented in my testimony, neither W.R. nor his wife were incapacitated at the time the DPOA was signed and the document was used to contact creditors with W.R. continuing to sign any financial releases, on his own behalf (Attachment 6 both statements). A review of financial and other documents would have revealed W.R. and his wife continued to sign all financial and other documents on behalf of themselves. (Attachment 7)
Judge Kelly asserts the Special Administrator found the document was “obviously defective”. This conclusion by Judge Kelly and the Special Administrator is contradicted by the Probate Court file. At the time guardianship was terminated, and as requested by the Probate Court, (Attachment 8) a receipt for estate assets signed by me as POA (Attachment 9) was provided along with the DPOA signed by W.R. This document was necessary in order to transfer W.R.’s assets out of the guardianship estate and back to him individually. The DPOA was reviewed and accepted by the Court on January 27, 2011, with no comment from the court or court personnel as to the validity or defectiveness of the document, an action which was acknowledged again by the Probate Court on November 15, 2015 (Attachment 10). At no time subsequent to guardianship were any assets for either W.R. or his wife, held in my name as DPOA, nor were any documents signed on their behalf as DPOA.
The defects with DPOA, were brought to my attention by a third party in December 2015, long before this matter was ever reviewed by Judge Kelly, the Special Administrator or any other entity. When the issue was brought to my attention, I immediately obtained for both W.R. and his wife, no cost legal services which assisted them with independently preparing and executing extensive estate documents, including properly executed DOPA’s. (Attachment 11)