|Published:||Jul 23, 2013 10:10 AM EDT|
|Updated:||Jul 23, 2013 10:10 AM EDT|
SARASOTA, Fla. (AP) - If there's such a thing as a typical marriage, Bunny and Claflin Garst's has never been one.
When they were introduced 42 years ago at a Bradenton real estate closing, they didn't think all that much of each other. She had just moved from New York, and wondered what kind of grown man would wear a short-sleeve shirt and a tie. He, in turn, was leery of the female broker in her citified business suit.
But the next time they met, she had on a bikini. "He liked that a lot better," she recalls.
The longtime Manatee County judge, son of a prominent ranching family, and the divorcee with two children kept company for 11 years before tying the knot. Yet even as a married couple, they didn't always sleep under the same roof; she preferred her comfortable beach house to his Spartan buffalo ranch.
But Bunny Garst, now 80, says she cooked, cleaned and cared for her husband through almost 30 years of marriage. She expected to keep doing so when his progressive dementia got out of hand in 2010.
Instead, she maintains, in the space of a morning quarrel he turned against her, refusing afterward to let her help him or even speak to him.
Today, after a bruising legal fight, the state of Florida controls Claflin Garst's fate. He has a personal lawyer and a professional guardian, who also has a lawyer - each earning fees that come out of his assets. Those assets also paid legal costs for two people who competed for the right to take care of him.
Since giving up her own attempt to become her husband's guardian a year ago, Bunny Garst has gone to court to try to block the liquidation of his remaining real estate investments, which are valued in the millions.
She is not allowed to see her 78-year-old husband without permission, and says she has no idea what remains of his life savings - including a safe-deposit box with gold Krugerrands he used to boast about, also reportedly worth millions.
"People think that when your loved one gets dementia, all you have to do is go to court and become his guardian and you take care of him as best you can, and that's it," Bunny says. "But this is a horror story."
As others who get entangled in the guardianship system have found, state laws designed to protect people who can't make their own decisions can trump longtime family ties - especially in families that appear messy or suspect to a judge.
No statistics are available on how many people unwittingly get caught up in the system. But the Garsts' predicament is a cautionary tale, illustrating the importance of having family discussions and executing legal documents before an individual loses the capacity to make clear decisions, said Gerald Hemness, a Brandon lawyer who lectures on guardianship issues.
Families who have not spelled out their wishes earlier can be surprised by their lack of control over their loved one's care as they age.
"Guardianship is inherently a failure," he says. "If you are in a guardianship, things were not properly prepared ahead of time."
Guardianship hearings are closed to the public, and court records are sealed. But Bunny Garst says she keeps every legal document and email she receives - in a binder she can barely lift - and she shared them with the Herald-Tribune, providing rare insight into the largely secret process.
According to the court records in Claflin Garst's case, two people petitioned the circuit court in Manatee to become his legal guardian. One was his wife. The other was his wife's ex-son-in-law, Mark Cussans, a handyman on Claflin's ranch since 2006.
"I didn't think he would have a prayer," Bunny Garst said, referring to Cussans.
But that was before she learned in court that her estranged husband had recently gone to a new lawyer and signed papers that gave Cussans the right to handle his legal, financial and medical affairs.
She suspects the ranch hand "told Claflin I was trying to put him in the nut hatch," Bunny Garst says. "He hates me now."
In an email, Cussans declined to be interviewed for this story. Claflin Garst's professional guardian, Robert M. Elliott, said he never discusses any of the individuals in his charge. The attorneys for Elliott and for Claflin Garst also said they did not want to comment.
Experts in the field say that, while Florida's guardianship system is not perfect, judges generally make the correct decision when the caretaking of an elder is in dispute.
The system is "a vital element in protecting people from exploitation," says Edwin Boyer, a Sarasota lawyer since 1978 and a past president of the National Academy of Elder Law Attorneys. "It does work; it does get the job done."
But this does not mean it is easy on family members. Contentious cases can resemble an ugly divorce or custody battle that leaves no one happy.
If a judge is unable to trust the motives of either person vying for guardianship, a professional guardian is usually considered the safest option.
Guardianship law is "about the ward," Hemness said, not outside parties.
"When you have two sets of relatives feuding, there is a great desire from the court in most places to find the Solomon solution," Hemness says. He was referring to the Old Testament story of King Solomon, who threatened to cut a baby in half when two women claimed to be its mother.
"It's hard to say it's not the right answer."
Claflin Garst Jr. was born in 1935, only son and third child in an Oneco family well-known among Florida ranchers.
"He was his mother's spoiled darling," says oldest sister Mary Sheppard. "As a child, it was his aim in life to be the bigwig and order people around."
When Claflin and Bunny were introduced by his third cousin in 1971, he had been a judge for three years and a bachelor all his life. After he saw her in that bikini - he had bought property next door to hers - she half-heartedly agreed to go to dinner with him.
"We warmed up to each other, finally, but it certainly wasn't love at first sight," Bunny Garst says. "I guess I like to fix people. This one, I thought - well, he shows promise."
Bunny says she worked to rekindle her husband's relationship with his parents, "making him into almost a human being."
"His mother, at first, didn't much care for me," Bunny remembers. "She thought, 'Golddigger! Divorcee!' But we became very close."
In 1982, Bunny says, after he resigned his position to run for circuit court judge, Claflin Garst thought they should get married. He was living in an old beach shack he had moved from Siesta Key to his 78-acre ranch, and she moved in officially. But even after renovating the ranch house, she decided it was too rustic and bought a place in Anna Maria with her own money.
"The deal was to be that we'd spend four days a week there and three days at the ranch," she recalls. "I think that lasted about two months. We had lots of fights about that."
Sheppard describes her brother as a talented judge and attorney who could be naive about his personal affairs.
"Claflin Jr. appreciated Bunny no end," Sheppard says, and he often relied on his wife's expertise as a real estate broker. "But he just did not use her qualifications wisely. He didn't have any ability to judge which people can be trusted, and I know he got taken to the cleaners a few times."
In 2006, shortly after her husband received his first, tentative diagnosis of dementia, Bunny bought a second home near the Peridia Golf and Country Club, less than a mile from his ranch. She cooked his meals and helped with his medications and real estate investments.
"It was not the happiest of marriages; however, it worked. When we traveled, you couldn't find a couple who got along any better than we did," she says. "Did I love him? Oh yes, big time. He would flaunt this and just make my life hell."
Then in late 2006, he had trouble with his herd of crossbred bison-cattle.
"A bull or a cow ran at Claflin Jr.," his sister remembers. "He simply did not have the balance and strength that he once had. It scared the living daylights out of him."
Bunny says she suggested that her former son-in-law, Cussans, a part-time handyman, move into a mobile home on the ranch and help out.
"I kind of felt sorry for him," she says of Cussans. "I got him all kinds of jobs."
For a time the arrangement worked, even as Claflin's condition gradually worsened, Bunny says.
"I would go over there at night and I would sleep until I was sure he was sound asleep, and then the snoring got so bad I would come home," she says. "Claflin would be here for breakfast every morning, and come back for supper every night. But I began to worry about Mark's influence on him. It started to be: 'Mark says this. Mark says that.' "
In February 2008, according to his family, Claflin Garst stopped having regular meals with Bunny and attending Garst family gatherings. On Feb. 15, he fired his longtime secretary, according to this employee's written statement, submitted to circuit court - and replaced her the next day. The new secretary would become Cussans' wife two years later, and in that time the couple appeared to handle much of Claflin's financial and medical affairs.
Sheppard says now she wishes Bunny Garst had told her and the rest of the family what was happening.
"Things progressed and got into bad shape," Sheppard says. "If she had shared it, and if she would have listened to us - but those are two big ifs that never happened."
On March 19, 2010, as Bunny Garst tells it, her husband was eating breakfast when she told him she had an offer of $375,000 on a 10-unit apartment building he had asked her to sell. To her surprise, he told her the sale was off because he had arranged to remodel all 10 bathrooms at $42,000 each.
"He said, 'I already promised somebody,' " Bunny recalls. "I said, 'Claflin, this is not possible.' "
She suggested they have a builder look at the place.
"With that," she says, "he picked himself up out of the chair and started walking out. I said: 'Claflin, where are you going? We need to talk about this.' He just looked at me like I had come out from under a rock.
"He basically never spoke to me again."
In September 2011, at the Garst family's urging, Bunny called the state Department of Children and Families, asking that it check on her husband's health and safety. Reports from those visits, by the division of Adult Protective Services, are confidential. But other documents Bunny Garst provided tell the story of what happened next:
In October, Claflin Garst signed papers entrusting his future care to Cussans, and had another lawyer send a letter to Bunny saying he wanted a divorce.
In December, with backing from her husband's family, Bunny Garst petitioned the state court to determine Claflin Garst's capacity to make decisions, and to appoint an emergency temporary guardian.
She also applied to become his permanent guardian.
Legal gears can turn swiftly when an elder might be in trouble. Attorney Lawrence Thomas was appointed Claflin Garst's emergency guardian the following day.
On Dec. 29, Thomas sent emails to Bunny's and Claflin's attorneys to say he'd learned at a coin shop that Claflin Garst had bought 1,600 gold Krugerrands between 2004 and 2008, with a value estimated by the shop at $2 million. Thomas wrote that he questioned the former judge, who told him only that he had given 42 gold coins to Cussans.
Thomas reported that the ranch house was full of fleas and suggested moving his ward into an assisted-living center. But both Bunny and her husband's attorney, James Knowles, replied by email that it was a bad idea.
"I said, 'Over my dead body.' His dog means more to him than anything in the world, and his house," Bunny says now.
With Claflin Garst's fate in the hands of the state, and specialists determining his mental capacity, Bunny Garst got an idea that the tide was turning against her.
"I spent an hour this morning talking to the DCF caseworker," she wrote in an email to her attorney on Jan. 3, 2012. "I'm still stunned by the things Claflin told her that have no bearing on the truth. He's living in a fantasy world where I'm the enemy and I know that it shouldn't, but it hurts. She is recommending that he have a financial guardian."
Bunny Garst sensed her husband had become convinced she was after his fortune. But it came as a shock, she says now, that the authorities agreed.
"Am I so stupid that it's taken me 41 years to get it?" she asks.
On Jan. 4, Cussans filed a petition in circuit court to become Claflin Garst's guardian, saying he had taken care of the ailing man for a year and a half.
"He has known the ward since approximately 1998 and is the ward's former son-in-law," the petition stated. "He has taken the ward to, and accompanied him during the ward's appointments with various physicians. . . . Over the same time period he has assisted the ward on a daily basis."
On Jan. 23, a circuit judge's order found Claflin Garst to be lacking the capacity to make his own decisions, retaining only the right to choose where he lives. Then came months of subpoenas and stipulations, recorded in the court docket, involving at least seven attorneys.
Bunny Garst believes the opposing attorneys saw her separate home as a reason why she should not be her husband's guardian.
"They kept saying, 'Do you live together?' " she recalls.
Cussans also came under scrutiny, the court records show. In April, Bunny's lawyer questioned him in a three-hour deposition, asking about several trips with Claflin Garst to three safe-deposit boxes, and trying to connect the allegedly missing Krugerrands to Cussans' cash purchase of a house in 2011.
But his answers in the deposition shed little light. He told the lawyer that he had bought and sold coins on his own, and that Claflin Garst had given him and his wife a total of six gold coins as Christmas gifts.
In a transcript of the sworn deposition provided to Bunny Garst, her attorney asked Cussans why he and the judge made an inventory of the contents of one deposit box in November 2011.
"He wanted to move things around," Cussans said. "He was always moving things back and forth. He was very, very nervous about anything, including his accounts that he had at Whitney Bank. He thought people were getting in there and getting access to his accounts."
In the deposition, Cussans added that Claflin Garst had told bank officials, "I think my wife is somehow talking her way into gaining access to information or my boxes."
According to Cussans' deposition, the judge said the bank officials confirmed his suspicions. "And that infuriated him," the transcript quoted Cussans as saying, "because they have never, to my knowledge, shared bank accounts, shared property or shared a domicile in the longest time."
Finally in June 2012, as legal fees piled up - all eventually paid from Claflin's assets, including $48,000 for Bunny Garst alone - both parties gave up their unsuccessful quests to be chosen as guardian. Under the agreement that they signed, a professional was named instead, according to the court file.
Hiring a paid guardian against a family's wishes can amount to a denial of due process, says Edward Gaffney, a law professor at Valparaiso University. In 2011, Gaffney unsuccessfully petitioned the U.S. Supreme Court on behalf of a woman seeking guardianship of her father - another Bradenton man.
"The Florida statute recognizes family members as the primary caregivers," he says. "But this preference is often ignored by judges who appoint lawyers in their jurisdiction to take over and manage all the assets of older Americans. And it is often - once is too often - difficult to get a fair and full hearing to sort out whether the wishes of an older American are being honored by the court-appointed guardian."
But the Brandon attorney Hemness says it is not so much a lack of justice that puts an end to such disputes. Mostly, it comes down to money.
Under guardianship law, he says, "the fees and costs for the benefit of the ward are payable by the ward. At some point, the expense is usually the thing that's going to short people out of a full and fair proceeding. Paying for lawyers to go wage war is a tough thing to pay for indefinitely."
Claflin Garst's sister Mary Sheppard moved back to Bradenton from California in 1983 to care for her father. As a county planning commissioner and Sierra Club member, she has been active in environmental causes - an interest she and her brother shared.
When "it became obvious to a lot of people that Claflin was slipping," Sheppard says, Bunny Garst tried to persuade him to get his affairs in order. While he agreed to purchase long-term care insurance 17 years ago, and executed a will naming his wife as his personal representative, she says he balked at making his other wishes known on paper.
"He just wasn't in the real world," Sheppard laments. "Daddy did so much for him and he's just let it all go to waste. Claflin Jr. did say, in the presence of myself and two or three other people, that he had X amount set aside."
Sheppard does not understand why her brother turned against his wife so drastically.
"She was very bossy; I don't know that that's it," she says. "Is Bunny perfect? Gosh, no. But her interest in Claflin's welfare has always been correct. I know Bunny is an honorable person."
She does see how a guardianship judge could have found the couple's habit of living in separate houses unconventional.
"But it worked for t