One Miami family’s guardianship struggle over a mother’s home

Ela Avila, a 90-year-old retired uniform maker on food stamps, is in the second year of her fight against a court-appointed guardian who controls Avila’s money, housing decisions and medical care.

It’s a battle over small decisions — like when Avila says she can’t get enough cash to visit a hair stylist. And big ones — like when the guardian, Zaidis Alvarez, listed Avila’s Little Havana home for sale last year against her wishes.

“I don’t want her,” Avila said in Spanish during a recent interview with the Miami Herald in her home of 35 years. “I get sick every time she comes here.”

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While Avila doesn’t want a guardian, she may end up paying for one. In March, Alvarez asked for court permission to use the divorced grandmother’s assets to pay a $21,000 legal bill from Alex Cuello, a lawyer charging $525 an hour to work for Alvarez in the guardianship case.

Probate lawyers and advocates for elders’ rights say Avila’s case is an example of the high-stakes consequences that can be lurking for an elderly person facing allegations of losing cognitive abilities even while they’re living at home, attending to everyday tasks and remaining well aware of their circumstances.

“One of the things I preach is guardianship avoidance,” said Collett Small, an elder-law attorney in the Pembroke Pines office of the Slater and Small law firm. “It can be a very scary process. Imagine someone knocks on your door and says, ‘I am here to evaluate you.’”

The case started in 2021 when Avila’s daughter, Rosa Hernandez, asked a court to name her guardian of her mother’s assets. A judge briefly approved that arrangement, then shifted to the appointment of an independent, professional guardian in 2022 after Avila’s son, Rogelio Hernandez, objected to his sister filling the role.

Alvarez is registered with the state Elder Affairs Department to serve as a court-appointed guardian for people deemed mentally incapacitated and unable to make decisions on their own. To become guardians, applicants must pass criminal history and credit checks and a state exam after completing a 40-hour course.

Alvarez and Cuello have not responded to requests for comment.

READ MORE: A look at one elderly person who fell victim to a scam

Under guardianship, Avila, a Cuban immigrant, has lost her right to vote, travel, accept medical treatment, make decisions on where she lives or sign contracts, according to an April 7, 2022 court order obtained by the Miami Herald.

The judge in the Miami-Dade Circuit Court case, Bertila Soto, appointed Alvarez on March 8, 2022, and instructed her to take charge of Avila’s money. Alvarez must submit budgets to Soto and get court approval for any big changes in Avila’s affairs.

Once fighting each other in court, both of Avila’s children now are united in asking Soto to restore their mother’s independence. Last month, they filed a joint motion asking Soto to end a guardianship they say is sapping the family’s cash.

“My mom used to have a lawyer. When the turmoil started getting bad, he wanted more money. We couldn’t pay him,” Rosa Hernandez said. “My brother and I are trying to do our best.”

A court fight for independence

While lacking a lawyer of her own, Avila is being asked to pay for the one behind the guardianship that has her an involuntary “ward” in the Miami-Dade case. On March 13, Alvarez filed a notice with the court saying she approved Cuello’s $21,054 legal bill for services he provided for the prior 12 months. The bill is to be paid “from the Ward’s assets,” according to the form, if a judge agrees to the fees.

The court records don’t show an order related to the fees, suggesting they remain unpaid. The Cuello bill shows a string of tasks the lawyer preformed for Alvarez, including attending hearings, reviewing court filings and communicating with lenders on a possible reverse mortgage.

Florida law requires three professionals, including at least one doctor, examine a person for mental capacity before a judge can declare them incapacitated and needing a guardian’s authority. Florida law dictates many guardianship documents remain off-limits to the public. Court clerks haven’t publicly released most filings in the Avila case, including the basis for her guardianship and medical reports. Avila and her family say they don’t have those reports.

Though Avila is described as an “incapacitated person” in court papers, at least two medical professionals weighed in positively on her mental state.

In December, a nurse practitioner filled out a court form saying Avila had the “full capacity to live independently.”

Last year, a nurse working in the elder-abuse unit for Miami-Dade prosecutors went to Avila’s house after she and her son called asking for help, according to a summary provided by the State Attorney’s Office. The nurse, Carmen Duran, “did a quick assessment on Ms. Avila requesting her to answer basic orientation questions. Ms. Avila responded to all questions correctly and clearly,” according to the summary of the May 17, 2022, meeting.

Alvarez and Cuello also attended the meeting. Duran said she asked about Avila’s mental examinations and “was informed that Ms. Avila had not been diagnosed with dementia or Alzheimer’s.”

In a prior conversation with Avila, Duran said it was clear Avila felt the court was ignoring her ability to live independently and that Avila wanted nothing to do with an assisted living facility or any other option forcing her to move.

“Ms. Avila also expressed frustration that she maintained a standard of self-care and grooming and yet was being denied her own money to maintain her hairdresser appointments and social schedule,” the summary said.

Rosa Hernandez said her mother initially agreed to have her become guardian as a way to stabilize a rocky financial situation amid trouble with tenants who were then living in the flat attached to Avila’s house and paying enough rent to cover the mortgage. The $1,500 rent payments stopped altogether in the summer of 2021, according to court records from an eviction proceeding, leading to a financial slide that now has Avila facing foreclosure because she’s behind on mortgage payments.

Avila signed documents saying she wants to put a reverse mortgage on the house, a financial arrangement that can let an older person remain in their home indefinitely but often leaves no equity for heirs as unpaid interest compounds and eats away at the value of the house. Rogelio Hernandez said he’s been pushing Alvarez to help secure a reverse mortgage, but the guardian won’t cooperate.

“Look at her. She’s fine. She’s well,” Rogelio said in an interview at the kitchen table. He lives in the house with his mother and a caretaker he says he pays $400 a week after Alvarez raised concerns about Avila being left alone while he works overnight shifts as a forklift operator at Miami International Airport. “I don’t want her to live in a home.”

Tidy bedroom, Cuban coffee in kitchen

Born in Cuba, Avila came to the United States in the 1960s, married, had two children and worked for a Miami uniform maker that clothed local police officers and firefighters.

In a tour of her home as Spanish-language morning news played in the background, Avila brought out a wind chime with a porcelain officer, gun and police dog she said was given to her as a retirement gift. When a charcoal portrait of a woman in pearls and a blouse caught a visitor’s attention, Avila explained a cousin drew that of her mother.

Then she walked into her bedroom, pointing out another portrait by the cousin: a framed rendering of Jesus hanging over the tidy bed that Avila said she makes each morning.

“And I wash the dishes,” she said.

She still has two sewing machines in her kitchen, where she offers to make Cuban coffee for visitors on a recent weekday. “Amargo o dulce?” she asked in Spanish as she set up the pot on the electric stove’s burner.

Guardianship laws are designed to give court protection and supervision to people who lose the mental capacity to make decisions for themselves.

Probate lawyers call it a legal last resort and often the result of a person waiting too long to make arrangements for how they want their affairs managed if they lose mental capacity during a medical crisis or due to old age.

Without setting up a legal pathway for long-term care decisions and finances, a person can be the victim of the high costs of having a judge make those decisions in a contested guardianship proceeding where family members are fighting over an older relative’s next steps.

“It’s a very expensive and invasive way to resolve family disagreements,” said Heather Samuels, an elder-law attorney with Samuels Wood in Boca Raton. “The really experienced litigators are getting $450 and $500 an hour. That devastates people’s nest eggs.”

Billing records Alvarez submitted to the court show her contacting Avila’s bank, lender and healthcare providers as she worked to modify the home’s mortgage to prevent foreclosure and manage both the guardianship case and Avila’s needs. That included multiple calls with Avila, and coordinating with a real estate agent when Alvarez was preparing to list Avila’s house for sale in the spring of 2022.

Alvarez’s bill for a year’s work was $8,488, on top of the $21,000 billed by Cuello, Alvarez’s lawyer. The Alvarez bill also is charged against Avila’s assets, another obligation that could reduce money available to her after a home sale or refinancing through a reverse mortgage.

Avila’s case isn’t related to the Guardianship Program of Dade County, a nonprofit that handles thousands of guardianship cases but does not charge people for legal services. Instead, it pays its lawyers and staff with about $6 million a year from Florida and Miami-Dade County funding. The nonprofit came under scrutiny after WLRN raised questions about some of its home sales on behalf of incapacitated people.

READ MORE: Here’s a look at how the Guardianship Program sells real estate in Miami-Dade

Precarious finances and foreclosure threat

On April 27, 2022, Avila signed a motion prepared by a family friend with legal experience asking a judge to order a doctor’s evaluation of her mental state in order to end the “frivolous” guardianship proceedings. The motion said Avila was representing herself, with no lawyer in her corner.

Avila said she wanted the right to decide on putting a reverse mortgage on the home she’s owned since 1988. “The reverse mortgage on my own home,” the typed motion read, “is no one’s decision other than my own.”

A reverse mortgage is a financing arrangement that generally allows an older homeowner to borrow against a property’s value while continuing to live at home without making loan payments. The borrower cashes out equity in the house and typically receives a monthly payment from the lender. Property taxes, insurance bills and maintenance still come out of the homeowner’s pocket, though the monthly income from the mortgage can cover those bills.

While the borrower isn’t paying anything to the lender, interest is being charged and the loan amount continues to grow. When the person dies or must move to long-term care, the balance of the loan comes due and heirs can pay it off, sell the house or turn over the property to the lender.

“It will pay off her existing loan that’s in foreclosure,” said Joshua Orlan, the mortgage broker trying to close the reverse mortgage for Avila. He said he hasn’t received the needed court approval for the transaction. “She’ll be able to stay in her house. And she never has to make a mortgage payment.”

When Avila asked for a reverse mortgage last year, Alvarez instead secured court permission to put the house up for sale.

“When making this decision, the Court considered, not only the recommendation from the Guardian, but also, the fact that the mortgage owed for said property is $106,000, it has not been paid for more than a year, is more than $30,000 in arrears and could be foreclosed upon at any time,” Soto wrote in the May 9, 2022, ruling.

“The Court is concerned that if the house is not sold immediately, the Ward’s sole asset will be wasted further.”

Soto laid out Avila’s tight budget: $838 a month in Social Security income, about $200 in food stamps for groceries and the $1,500 her son is being charged for rent.

Short-sighted financial decisions aren’t enough to impose a guardianship on somebody, lawyers said. Instead, the laws are designed to take over financial decisions for someone once it’s proven he or she no longer has the ability to make decisions for themselves.

“I make bad decisions all the time. We all do,” said Jim Berchtold, senior staff attorney with Justice in Aging, a national organization that advocates for older people in the court system. “The question really is does she [Avila] have the capacity to decide this issue. If she understands what a reverse mortgage is — and understands the ramifications of it — why shouldn’t she be able to make a decision about it?”

In conversations with Duran, the nurse from the State Attorney’s Office, Avila said it wasn’t fair for her to have no control over the legal bills accumulating in her name and no say in signing the loan needed to stabilize her finances.

“Ms. Avila expressed dismay that she was behind in mortgage payments and yet her assets were being used to pay the fees for both the guardian and the guardian’s attorney,” according to the Duran account in the summary.

While online real estate records show Avila’s house was listed for $650,000 in 2022, the property never sold or went under contract. The sale stalled after Duran’s intervention, according to records and interviews. Duran asked Soto to consider the reverse-mortgage alternative and the judge agreed, according to the summary from the State Attorney. But the reverse mortgage still hasn’t happened a year later.

“I just haven’t gotten anywhere with the guardian,” said Orlan, the mortgage broker.

At issue is Avila’s mental. state. Her son provided a copy of a Miami-Dade Circuit Court form filled out by Yeneysi Notario, a nurse practitioner, who on Dec. 19 wrote of Avila: “Patient Independent” and “alert and oriented … with full capacity to live independently.”

In a section asking for a physician’s opinion on whether the patient requires court supervision, Notario checked the box stating Avila “does not continue to need the assistance of a guardian.”

The form does not have markings showing it was filed in Avila’s case, and the public court docket doesn’t indicate whether it was submitted to Soto. Horacio Sosa, the lawyer representing Avila’s children in the request to lift their mother’s guardianship, did not respond to questions.

While the actual documents remain confidential, the court docket and Cuello’s billing records show the case has been contentious.

On May 10, 2022, a Cuello paralegal billed an hour for preparing an emergency motion to “remove” Rogelio Hernandez from the property. The docket shows Soto issued an order six days later that didn’t bar Hernandez from his mother’s home but stated he couldn’t interfere with visitation by Alvarez.

Alvarez makes regular visits to Avila’s house and there have been signs of friction.

“GM Roger how are you? [How] is your mom doing?” Alvarez wrote to Rogelio Hernandez in an August 2022 text exchange he provided to the Herald. “Do you have the rest of the rent for this month?” In an undated exchange, Alvarez said she plans to swing by the next day to visit with Avila. “My mom doesn’t want to see you,” Hernandez responded. “She gets agitated.”

At one point, Alvarez responded: “I have to see her and don’t understand why she gets agitated when the only thing I’m doing is trying to help and save her home.”

Hernandez said he stopped paying rent several months ago because he couldn’t afford it after his hours were reduced at work.

“It was too much,” he said. “I’m already paying $1,600 a month for the caretaker.”

While Avila’s motion last year didn’t end her guardianship, her children may be making more progress. After filing their motion to lift the guardianship in late April, Soto on May 11 signed an order instructing a doctor to examine Avila and file a report on her mental state within 20 days.

A hearing on the possibility of ending the guardianship is scheduled for July 11.