When probate court and an incompetent psychiatrist kills a friendship

Last year, on this day, we were walking into Demika’s Italian Restaurant for dinner together. What he didn’t know was that about 50 of his friends were gathered for a surprise birthday party. He was moved to tears.

Since February of 2016, I’d been his Power of Attorney, both legal (durable) and medical. That came to an abrupt end in the hallway outside the locked Dayton VA Psych ward on 7 S on a Wednesday afternoon in Nov 2023, when I stopped up to check on him, hoping he’d calmed down after 5 days of treatment.

He had checked himself in, after telling a friend over lunch in the Oregon District that he was miserable and suicidal. His friend had driven him to the VA. I had to go find his car and bring it home- and started taking care of his dog.

I was met by a combative social worker, the Psychiatrist in charge, a Dr. Gina Guadagno and 2 others, where I was told that he’d broken the POA’s while he was admitted. A first year lawyer would tell you, a person has to be “of sound mind and body” to enter or exit a legal contract, instead, Dr. Guadagno was offering a legal opinion that I had to be his guardian in order for her to talk to me. Me, the guy who gave him his meds 2x a day and made sure he took them. Me, the guy who paid all his bills. Me, the guy who took care of his dog when he was hospitalized. Me, the guy who met with his doctors with him, and attended bi-weekly counseling with him. Me, the guy who got him his 100% disability rating, his SSD restored, and took his credit score from 420 to 760. Me, the guy who arranged his surprise birthday party…

I went down the VA Patient advocates office. Told them what had happened. How the combative social worker even gave me the Glomar response “we cannot confirm or deny he’s on the floor.” They were confused. All the records in the VA including a VA form 10-5345 Release of health info was on file. This form requires not just the POA’s to be dissolved but the Fiduciary responsibilities as well.

Note, one of the conditions of his 100% VA disability is a finding of incompetence, so if he’s all of a sudden, competent to remove his POA’s- he’s also not eligible for his 100% disability- surely the doc didn’t think that?

By the end of Thursday, it was pretty clear I’d have to file for Emergency Guardianship- just to be able to find out what meds to give him. I hired a lawyer, who was very responsive, after others didn’t answer their phones or were too busy. I spent $1500 of his savings to do it. We’d discussed guardianship many times, I’d even conferred with David Brannon, who is now the Probate court Judge about it. We’d decided against it- another layer of bureaucracy and a cut of his money coming to me. Note- for the first 6 years, I took care of him for free. It was only about 2 years ago, that we were made aware that I may be eligible for “Aid and Attending” which is pay for caregivers by the VA. It amounted to about $850 a month, and didn’t cost him a dime.

The emergency guardianship hearing took place Friday, by the time the signed order was ready to be picked up in court- Dr. G had let him out- despite the fact that she hadn’t told the person who gives him his meds (me) what she’d done. He came by to pick up his dog from my office as he was dropped off- I was getting in my car to go to the courts to pick up the order and take it to the VA. He wasn’t very friendly.

Upon getting to the VA it took an hour for the Patient advocate to scan it in- run it by legal and finally approve it. Only problem was the Dr. G had already gone home. So I’m getting in my car ready to leave when Dr. G and her boss call me- and tell me what’s happened. They took him off the one med that works, the one his son is on, the one his brother is on, and replaced it with a long acting shot. The one we’d tried- that didn’t work many years before. It’s as if she didn’t even bother to read the records- and didn’t want to listen to his caregiver.

When he learned I’d spent $1500 of his savings on the emergency guardianship, he went to the bank and took out the $10K savings that were left- and went and bought a boat. One that needs work, one that he can’t store, and one that’s going to cost him about $220 a month to store. He also told me he wanted to kick my ass, and threatened to kill me. This was all before he’d been out 24 hours.

And, if I’d just listened to him- and tried to read the instructions that they sent home with his new meds- I would have given him the wrong meds. That conversation with the doctor was absolutely necessary.

By Saturday night- I wasn’t watching him take his meds. I was just putting them in the mailbox. Monday morning- I went to the VA to have the pharmacist figure out his med box- because, again- the instructions were incomplete. We were scheduled for court on Tuesday for the decision of if temporary guardianship was to be given (the next step after emergency guardianship).

He had been waiting in the hall before the hearing, and screamed at me as I was going to the bathroom at the top of his lungs “Get the fuck away from me” after I said hi. By the time I came out of the bathroom- he’d gone home.

He’d been given a court appointed attorney to represent him. My attorney bailed 10 minutes before the hearing- “she doesn’t do contested guardianships.” I was there- with evidence from his hospitalization, and no lawyer. The Magistrate, Kim Wiseman, was all business. She had a 1 page evaluation by Dr. G saying he was competent, I had his medical records that clearly said he wasn’t, the VA Form, the experience of the last 8 years, all that went out the window. She trusted the VA Dr. who wasn’t there, over the person who had been. Her compromise? To assign an “independent psychologist” to evaluate him and issue a report. According to Wiseman (a misnomer if I ever saw one) the POA’s were disolved – and my emergency guardianship was revoked, at least until we got the independent evaluators report back. Didn’t matter that he’d threatened me (of course he did- he didn’t want you as his POA anymore) and didn’t matter that he was locked up on a psych ward without shoelaces when Dr. G accepted his rantings, we’re going to leave him without assistance until the final court hearing.

I subpoenaed both Dr. G, and the family counseling social worker who had worked with us for about 18 months bi-weekly for the coming trial. I had his son and our mutual friend who connected us come to the hearing. The VA sent a “Touhy determination letter” which according to 38 C.F.R. § 14.804 and the case Touhy v. Ragen, 340 U.S. 462 (1951) with the idea that “the federal regulations cited above and with a line of cases holding, under principles of federal supremacy and sovereign immunity, that federal officers should not be subpoenaed to testify in court proceedings of which they are not parties without their approval.” So basically- they don’t have any responsibility to be accountable for their decisions or the welfare of the patient.

When we got to court, the Magistrate had already stated that because “you did nothing with your emergency guardianship” (like what- lock him up and piss him off more- with the same doctor in charge- and only a guarantee of 3 days of control) and that he had stated he didn’t want me as guardian (while off the one crucial med) and that she knew a lawyer who handles all kinds of difficult veterans as guardian, she was inclined to assign him to this case. At this point, considering all the efforts I’d made to restore the POA’s and keep this all simple, I was ready to hand him over. And remember that independent evaluation that Wiseman ordered? It was a 10-page scathing review of the VA doc’s assertion that he was competent. He was anything but.

The fact that right after I’d been relieved of power, he’d decided to punch his brother, and had to be wrestled to the ground by 8 cops to be re-admitted to a psych ward didn’t matter. None of it did. When the independent psychologist got the referral, she was told this was a “political” thing of some sort. She was already very familiar with him- and had referred him to involuntary treatment several times in the past going back years. Had he stayed for that initial hearing, he might have protested her selection as evaluator- but, he was raging and missed out.

The new guardian took almost 2 months to get his paperwork in and finally meet with me to transfer bank accounts (I had to get a background check done- and had it done in 3 days). The amazing thing was, the VA was already talking to him, before the paperwork was complete, totally different than when I presented my paperwork.

No one at the VA has been able to explain how a psychiatrist can now offer legal opinions. I asked the day she made that demand, I asked after I provided the Emergency Guardianship, I asked again and again. Finally, I asked for a Congressional investigation- and despite having legal standing when the question was asked, they are now claiming the Guardian has to sign off – which he did.

The VA still hasn’t answered. It’s been another month. When I met with the guardian to transfer the bank accounts, he told me, “He’s going to regret this, I’ll never do any of the things you were doing for him.”

About a month ago, he and his brother had a genius idea between the two of them, to drive to Columbus so his brother could violate his restraining order from his x-wife. The brother is now in jail again. Without going into another long story, his brother suffers from the same disease, and had gotten arrested multiple times in multiple states during a manic episode. We’d bailed him out, gone to rescue his dog (with the help of Dr. Dan Curran, president emeritus of UD), and gotten him home from NYC via Grayhound after he’d lost his wallet, his phone, his ID and every last bit of dignity. Eventually, I had to step in as his brother’s POA as well- to save his home which had been wrecked by squatters. I had only given up that POA in November- willingly.

Left on their own, severely mentally ill Americans are struggling to survive. Our lack of universal health care, our shutting down the mental hospitals, the stigma attached to mental illness makes life even more difficult than it already is. In August of 2019, the previous VA doc on the Psych ward was discussing permanent institutionalization for my guy. It was then, when I took over giving him his meds twice a day- and we started to make progress.

The scorecard read that I took a homeless, car less, phone less, pizza prep guy with no benefits and institutionalized with a credit score of around 420, to owning 2 homes, a car, a phone, having a wonderful dog, full Social Security Disability, 100% VA disability (he had been told before he wasn’t eligible) a credit score of 760, and saving his brothers home from foreclosure and putting a quarter million in the bank.

For all this, I’m the bad guy. But as the saying goes, no good deed goes unpunished.

I’ve always said, if you lined a 100 guys up and told me to pick a friend, he’d probably have been the last one of the 100. His life revolves around alcohol (which is his number one problem- since psych meds and booze are a bad combo) watching sports (I’d rather play than watch) and women- as sex objects, not as equals. But, like the old “Odd Couple” on TV- there were things I learned from him, and valued, that will stick with me forever. When he’s well, he has one of the biggest hearts I’ve ever known. Somehow, despite our differences, we had become family. His kid and step-kid were our once a week dinner companions. We’d taken roadtrips to his old boarding school to watch hockey. I’d met his friends from before he got sick- and heard the stories. I’d watched him volunteer at Food for the Journey project, becoming a key volunteer and loved by those he volunteered with.

My life has become a lot less hectic since I’ve been relieved of responsibility for him. I sleep better, I feel better, and I’m less stressed. There’s even a new woman in my life. And, of course, I’m running for Congress again.

But today, since the moment I woke up, I wanted to say “Happy Birthday” to my former friend, but thanks to Dr. Gina Guadagno, I’m not sure I would be safe. So instead I share this story.

Our mutual friend said, look at this way, you lasted way longer than anyone who was ever his POA before. They all walked away when the going got tough, you actually wore him out. To that, I owe a former employee, who’s the son of a 100% disabled Vietnam Veteran, who told me this- “You aren’t in this for when he’s well, you’re there for when he needs you.” That kept me going- right up to the point when the incompetent Doctor and the smug Magistrate decided to intervene.

This story isn’t over, and we still live right around the corner from each other, but for now, just remember, that the law, isn’t always the law, if they want to show you who has power.

last thought: I used to have full confidence in the Dayton VA. Dr. Hardy had one foot out the door as this saga began. Had Glenn Costie been in charge, none of this would have devolved past the first denial of the POA’s. My confidence in the VA has been shaken. It is a big part of why I’ve shared this story. There’s more to come, and more to tell. But for now, it will have to wait.

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