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VA guardian program comes under fire

A judge berated Tallahassee lawyer Silas Eubanks for his handling of a Navy veteran's Department of Veterans Affairs guardianship.

The judge said the lawyer took fees from a veteran's income without court approval and threatened to find Eubanks in contempt.

What Eubanks did next angered the family of the disabled Navy veteran whose finances he handled: He got permission from the VA to end the guardianship overseen by the court, Eubanks confirmed. He would continue handling the man's VA income and would be paid, but with one important difference.

The VA, not the courts, would oversee his work.

Eubanks' battles with a Leon County circuit judge beginning in 2011 over the VA guardianship of Navy veteran Martin Arnold, 58, spotlight what critics say are flaws in a dysfunctional VA guardianship system. It's a system, critics say, that often ignores the wishes of veterans and their families.

"This program is one of the most broken in the VA system," said Katrina Eagle, a California lawyer who has testified before Congress on the issue and represents veterans. "The VA says this is the way they've always done it. But how they've done it is wrong."

Eubanks, who insisted he has worked as a VA guardian for 30 years with no problems with the VA or judges, said he did nothing wrong and all his activities on behalf of Arnold have been approved by the VA. Indeed, even attorneys hired by Arnold's family do not accuse him of wrongdoing. Eubanks said other guardians operate exactly as he does.

"I've been doing this for 30 years, and every other veteran's guardian has been getting the same fees I have been," he said.

Reviews of other VA guardianships show Eubanks' fees are not unusual.

What is unusual is a guardian trying to move a case out from court oversight after getting criticized by a judge, critics say.

"What I see is some attempt to craft things so that you can do what you want to with the ward's funds without having supervision of the court," Leon County Judge Karen Gievers told Eubanks at one hearing. "I know the VA is there. But they're one branch of government. They're not the judicial branch."

A VA spokesman in Washington, D.C., did not respond to requests to comment. But documents and Arnold's family confirm that the VA has indicated it is satisfied with Eubanks' handling of the case and that the VA wants him to continue managing the roughly $3,000 Arnold gets monthly from the agency.

Guardians nationally manage $3.2 billion in assets for more than 111,000 of the most vulnerable veterans — those unable to control their finances due to a mental or physical disability.

Arnold's twin sister, Mimi Shaw, became his VA guardian in 1988, when his mental health deteriorated. He is 100 percent disabled with paranoid schizophrenia and other ailments.

But Shaw's attorney was often late submitting annual financial accountings. In 2004, the VA dismissed Shaw as the manager of her brother's VA money. Shaw continued as her brother's plenary guardian, handled his Social Security income and makes all his legal decisions. But the VA won't let her touch her brother's VA money.

Shaw, who lives with her brother, said she had no input in the VA's decision to replace her with Eubanks. In 2011, the VA was criticized by a veteran's appeals court for arbitrarily removing family members as guardians and told the agency it had to allow families to challenge such decisions.

Shaw, as a family member, could not charge a fee for her work. But Eubanks by law is allowed to charge Arnold's VA income up to 5 percent a year.

"It's been a nightmare," said Shaw. "There's no due process."

Eubanks said it wasn't just late accountings that got Shaw booted. He said Shaw wasted and mishandled Arnold's money — something that Shaw denies.

From 2004 to 2010, no judge objected to Eubanks' work for Arnold or any other veteran. He filed annual financial accountings in all his cases, as the VA and court required. Those accountings, Eubanks said, detailed his fees, and they were always approved by judges.

Then Gievers, a new judge, took over the case and began questioning Eubanks' work.

Aside from the monthly fees taken without her approval, Gievers said it was wasteful for Arnold to have two guardians.

Facing Gievers' criticism, Eubanks moved to end Arnold's guardianship and continue it as a VA custodianship. He would do the same work, but his fees would be reduced to 4 percent. He said Gievers wanted to save Arnold money and eliminate the VA guardianship, and this did that and was agreed upon in mediation, Eubanks said.

But the VA, not the courts, would oversee his work.

Eubanks said he does not know if he will be allowed to continue in that capacity.

Eubanks, who controls $33,000 in Arnold's savings, said he decided to end the court guardianship because he was wasting time and money defending himself against baseless charges. "I was going to court all the time," said Eubanks, noting Shaw's $22,000 in legal fees may have to be paid by her brother.

"It's a bizarre, confusing, broken system basically," said Shaw's husband, Perry Shaw.

William R. Levesque can be reached at levesque@tampabay.com or (813) 226-3432.

VA guardian program comes under fire 05/14/12 [Last modified: Monday, May 14, 2012 5:38pm]
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