Judges say background checks, oversight needed to protect wards

In 1998, a federal judge ruled that Dr. J.D. McKean devised a scheme to submit false medical claims to the government through his company, leading to a $15 million civil settlement.

McKean reportedly referred to requirements to document services as "purely a red tape crap issue," court records show.

Earlier this year, McKean was appointed by a Tulsa judge as financial guardian for a woman suffering from dementia, records show. While those involved with the case could not speak on the record, it's likely that attorneys and judges involved had no idea about McKean's past.

The case is an example of how little oversight the state's guardianship system has, a system shrouded in secrecy that is supposed to protect thousands of vulnerable adults from exploitation.

State law allows the courts to appoint guardians for adults unable to make decisions for themselves because they are disabled, have dementia or other medical problems. Guardians are also appointed for children in cases where parents are absent or unable to care for them.

No background checks on prospective guardians for adults are required by state law. A court study last year found less than half of guardians in Tulsa County filed their annual reports as required.

Tulsa County District Judge Linda Morrissey, one of two Tulsa judges handling most guardianships, said she has asked several lawmakers for new legislation requiring background checks for prospective guardians. Morrissey said

"When I think about little areas of the law that are vulnerable to abuse and exploitation, I would have to say guardianships are right up there at the top of the heap," Morrissey said.

There is no evidence that McKean has mishandled his position as financial guardian. The woman, Martha "Vicki" Peterson, was a friend who signed a document years ago asking McKean to be her guardian if she should ever need one, records indicate.

McKean declined to comment on the case.

Peterson's case began when the Department of Human Services took custody of her in an emergency guardianship last year.

Court records state her husband, a former psychiatrist, used psychotropic medicine to drug his wife. Relatives say she spent most of her time in bed and that they feared for her safety.

Vicki Peterson, 70, was at one time a well-known evangelist with a daily television show broadcast from Tulsa. She now lives at the home of a friend.

Special Judge Sarah Day Smith found Peterson's husband, Carl Peterson, in contempt of court after witnesses said he brought drugs with him to visit his wife, court records show. Smith ordered Carl Peterson to wear an ankle monitor and ordered him to stay half a mile away from his wife.

Carl Peterson has appealed the contempt of court citations to the Oklahoma Supreme Court. All records concerning Carl Peterson's contempt of court case were closed by the Supreme Court after the Tulsa World published a story regarding the case in August.

While the guardianship law does not specifically state all hearings are closed, Tulsa judges have closed the hearings and all related records as a matter of practice.

Smith appointed two guardians for Vicki Peterson to handle her personal and financial affairs, Dr. Don King and McKean, a former emergency room doctor from Edmond. Records show his medical license expired in 2001.

In 1999, the U.S. Department of Justice issued a press release stating that McKean and his company had agreed to pay a $15 million settlement "to resolve allegations of false billings" to the federal government. McKean started Emergency Physicians Billing Services in the 1980s, which eventually billed for millions of dollars in claims for doctors nationwide, court records state.

The Justice Department joined a civil lawsuit against McKean and his company that claimed he devised a scheme to bill the government for a higher service than doctors had rendered. In 1998, U.S. District Judge Robin Cauthron ruled that the government was entitled to recover damages under the false claims act.

"The court finds it abundantly clear, from the testimony, writings, and videotaped presentations of Dr. McKean, that his intent was to get what he could by fair means or foul," Cauthron states in her ruling.

While not commenting on the case specifically, Smith said she and other judges "generally have to rely on the parties to investigate and bring forth to the court anything that would make this person not the best guardian."

Two Tulsa judges and one former judge say the state's guardianship cases could use more oversight.

Last year, Morrissey discovered that a guardian in one of her cases had purchased a car and redecorated her home "on the ward's dime."

"I wish there were an ombudsman or some investigative arm of the state that could audit these guardianships from time to time," Morrissey said.

Last year, Morrissey asked Tulsa County District Court Referee Mary Fitzgerald to review guardianship cases to determine whether guardians were fulfilling their duties. State law requires guardians to file annual reports stating what they have done to help the ward and how the funds are spent.

"I was shocked at how many did not file their annual report; it was well over half," Fitzgerald said. She said guardians who had not filed reports were called in for hearings.

"What we found is half of them had moved. The attorneys would come back and say, 'We don't represent them anymore' so you just lose a lot of people."

Former District Judge David Winslow heard guardianship cases while on the bench in Tulsa County District Court.

"The courts are terribly, terribly busy. I was having eight to 15 new guardianships a day. There isn't the judge power to open great big windows on these matters," he said.

Winslow is now a private attorney and represented McKean in the Peterson guardianship case until he recently withdrew. He said McKean "has been a scholar and a gentleman."

Winslow said the case became a power struggle among some of those involved.

"I just thought it was time for me to move on. It's a case that's in your face every day."

Ziva Branstetter 581-8378
ziva.branstetter@tulsaworld.com

A wife places her husband, who has dementia, in a nursing home and convinces a friendly doctor to write a letter saying she should be his guardian. A judge signs off on the guardianship, allowing the wife to place the couple's property in her name only. The wife forbids the husband from leaving the nursing home or visiting his children from a prior marriage.

A son places his mother, who has a history of mental illness, in a nursing home and petitions a judge for guardianship. A judge appoints a guardian without allowing the woman to be present or have an attorney. The woman, though stabilized on medication, continues to live in the nursing home against her will.

A couple finds out their mentally retarded adult son has married a co-worker. Though the son has worked full-time for years, the family forcibly removes him from his job and convinces a judge to appoint a guardian.

Later, when asked how he is doing, the son says: "I lost my wife, I lost my job, my guardian keeps my disability money and now I have nothing to do but walk the streets."

All three cases are real examples of how the state's guardianship laws have been used by families to exploit their relatives. They are cited in a September 2006 report compiled by the Oklahoma Court-Appointed Advocates for Vulnerable Adults Association. The nonprofit group hopes a planned statewide volunteer program will prevent abuse by guardians.

The program was created through legislation in 2002 but lawmakers provided no funds. Since then, the Oklahoma Developmental Disabilities Council has set aside start-up funds and the state is seeking bidders to administer the program statewide.

Esther Houser, the state's long-term care ombudsman, said the program is modeled after the successful Court Appointed Special Advocates program for children. Extensive training for volunteers will be required.

"These folks would be the eyes and ears of judges, visit the prospective ward and try to figure out whether there is a need for guardianship," said Houser, also a board member of the group.

"We have great due-process rights in our statute but there are still folks that don't get represented when guardianship is taken over them and don't even get to come to the hearings."

State law allows judges to appoint guardians for adults who cannot make decisions for themselves, often due to disease or disabilities. Guardians can be limited to making only some decisions for their wards or can be appointed to make virtually all decisions.

While some states require training and background checks for prospective guardians of adults, Oklahoma has few requirements.

The state, however, does have a large population of people who may need guardians, according to Census figures. Oklahoma ranks seventh nationally in the percentage of people 65 or older with a disability and sixth in the percentage of younger adults with a disability, according to the association's report.

There are no statewide figures on the number of people in guardianships. Last year, there were 714 such cases filed in Tulsa County and 811 in Oklahoma County.