Friend Fights to Control Woman’s Care : Bureaucracy: O.C. public guardian takes role meant for her and daughter.

Pat Ross thought she had planned her future down to the last detail.

In 1987, Ross, then 82, made out a will. She drew up legal documents that would give her daughter and a longtime friend the power to make decisions about her health care and finances. And finally, she stated that if she were ever to be declared mentally incompetent, she wanted the two women to be named her legal guardians.

Then her condition began to rapidly deteriorate.

There was the time in the spring of 1989 when she accidentally popped silverware into the microwave, nearly setting her Costa Mesa house on fire. There was her home itself--a virtual obstacle course of animal droppings, courtesy of four cats and a dog, which emitted a foul stench whenever she opened the door. Not to mention that she broke her nose and both arms in separate falls.

Five years later, the fateful day that Ross had prepared for was upon her. But despite all her carefully laid plans, she wound up under the control of the Orange County public guardian--a little-known county agency that intervenes in the affairs of people who do not have the capacity to care for themselves, and often have no relatives or friends.

For, despite Ross’ belief that what she had set down in writing was legally binding, the law empowers the public guardian to reject an individual’s choice of conservator (legal guardian) if it is not judged to be in his or her best interest.

Now Ross, a frail woman who can no longer recognize pictures of her beloved dog, Barney, is the object of a bitter tug of war that pits the public guardian against Ross’ daughter, Terry Bee, and friend Polly McOlash.

The unusual case has become a personal crusade for McOlash, who has spent $38,000 in legal fees to fight the public guardian. It has also become a cause celebre at Fairview Community Church, where McOlash attends services. McOlash has been the topic of sermons and her fellow church members have written letters to the Orange County grand jury asking it to review the case.

McOlash, 69, estimates that she has spent far more money than she was to inherit from Ross’ trust. But the soft-spoken woman--wife of a former chaplain at Fairview Developmental Center--says it is the principle, rather than money, that is at issue.

“I promised her that I would take care of her,” said McOlash, who lives a block away from the Ross home. “She was entitled to have things the way she wanted them. That’s why I’m fighting this. It just isn’t fair.”

On Friday, McOlash will return to court to ask Orange County Superior Court Judge Jean M. Rheinheimer to reconsider her decision to award custody of Ross to the public guardian.

Both sides believe that Ross’ modest home, worth about $200,000, should be sold to pay for her long-term care in a nursing home. But in question is who should make the decisions concerning her care, and finally, who should control the money.

The Ross case also illustrates the difficult ethical and legal questions that arise when a person becomes mentally diminished but rejects treatment. It also shows some of the conflicts that can arise with so-called “durable powers of attorney for health,” which give a guardian the legal authority to make medical decisions for someone who is incapacitated. The documents are a relatively new phenomenon and their powers have yet to be clearly defined, according to legal experts.

“We have a whale of a lot of people who are going to have to face similar issues with the baby boomers’ parents getting up in age,” said Randy Swanson, a Newport Beach attorney who helped Ross set up the trust that she hoped would rule out any need for public intervention. Upon Ross’ death, the trust would divide her remaining assets, with 90% going to Bee and 10% to McOlash.

By all accounts, Patricia Jean Ross was a difficult person to get along with. A recluse with few friends, she rarely left her three-bedroom house.

For years, Ross shared her home with five cats and a mixed breed dog that she named Barney. They were her “babies” and had the run of the house. She would keep their unopened cans of pet food in the dishwasher.

“I tried to explain to her how badly the house smelled but she would get very angry and indignant and say it was her business how it smelled,” Bee said during a recent interview from her Michigan home.

Ross and McOlash met in the late 1970s. It was Ross’ love of animals that struck a chord with McOlash, who lived about a block away. McOlash would stop in for tea while she was on her neighborhood walks.

“It was really hard because of the smell but when I looked past that, I discovered that she was a feisty person that I came to love,” McOlash said.

Back then, McOlash would occasionally drop food by and take Ross on errands. Ross had undergone cataract surgery and had poor eyesight. She also suffered from severe hearing loss.

But despite these infirmities, she apparently got along.

In 1987, however, Bee discovered that all was not well during a five-day visit with her mother. When Bee arrived from Michigan, she learned that Ross had just fallen off a ladder and broken her arm. She and McOlash were at the hospital.

Bee also found that her mother’s finances were “a mess.” Bills were stuffed into bedroom and kitchen drawers or left on top of the piano. There were cancellation notices for her home insurance policy.

At the time, Ross was receiving $297 a month in Social Security payments--most of which went toward her $228-a-month payment on the house note.

With her mother’s permission, Bee said, she asked McOlash to handle the bills. Later that month, Ross and McOlash paid a visit to Newport Beach lawyer Swanson and asked him to formalize their arrangement. Ross set up the trust dividing her estate and also signed durable power of attorneys to allow the two younger women to act as her agents.

Swanson said he had no doubt that Ross was “completely lucid” at the time.

“I go through a very elaborate procedure to make sure there is no wrong influence,” Swanson said. “If I think it’s a borderline case, I’ll make a videotape but in her case that wasn’t even necessary.”

Over the next two years, Ross began to slip.

There was the microwave incident in March, 1989.

About a year later, Ross broke her other arm, which would remain deformed. Then, last September, she fell and broke her nose while talking to her gardener in front of her home.

Bee said she considered moving her mother to Michigan to live with her. But Ross, an Indiana transplant with no taste for the cold, stubbornly refused to leave her Costa Mesa home. “Mom begged me to let her stay in that house as long as possible and I promised her that I would do everything possible,” Bee says. “I really understood that her cats and dogs meant everything to her and I couldn’t picture any (nursing home) where she could go with five cats and a dog.”

When Ross could no longer cook, McOlash arranged for in-home meal service through a program that serves indigent elderly people.

But the situation steadily worsened.

Between 1987 and 1991, a dozen complaints were received by the offices of the Orange County Social Services Agency’s adult protective services unit from friends, neighbors and social workers concerned about Ross’ worsening condition.

According to one report dated March 28, 1989, McOlash called the agency to complain that Ross was becoming increasingly dangerous to herself. “The victim is stubborn, refuses services and is out of money,” the report stated.

Yet despite similar complaints from doctors, friends, neighbors and social workers, agency officials repeatedly found that Ross did not meet the legal definition for “grave” disability that would permit the public guardian to remove her from her home against her will.

The public guardian is the only agency with the legal authority to initiate what is known as a Lanterman Petris Short conservatorship--essentially commitment for lack of mental competence--on the grounds that a person is mentally ill. To prevent abuses, cases must be referred to the public guardian from a county-approved medical facility or designated health professional, and a Superior Court judge must endorse the agency’s recommendation.

McOlash says she took her cues from the professionals.

“I was leaving it up to them to make the decisions,” she said. “I was just the lady down the street and Pat absolutely would not agree to leave.”

But the matter came to a head one day last October when guardian officials forcibly removed Ross from her home after a neighbor reported to police that she had been roaming the neighborhood alone at night, disoriented.

After a 30-day investigation, public guardian officials decided that Ross had been grossly neglected by McOlash, contending that she had allowed the elderly woman to go on living in an unsafe home environment.

McOlash and Bee were outraged.

“We had no idea that (public guardian officials) were going to try to break her trust and take control of her,” said Bee, 42, a teacher at a Catholic high school. “That was not what she wanted at all. That’s what she had tried to avoid in the first place when she set up the trust.”

They fought back. With Bee’s backing, McOlash hired a lawyer to fight the public guardian in Superior Court.

But in May, Judge Rheinheimer ruled for the public guardian, giving officials the power to make decisions about Ross’ future care. The ruling set the stage for the agency to seek control of Ross’ estate to pay for her nursing home care.

Today, Ross’ home is Care West Huntington Valley, a nursing home at the end of a quiet street in Huntington Beach.

She is a petite woman with blue eyes and a gaunt face capped by a shock of white hair. On a recent afternoon, McOlash is paying her a visit in the room that Ross shares with two other women.

McOlash picks up a stack of pictures from Ross’ night stand.

A black dog, tongue flipped up to its nose in a comical pose, peers back.

“Who’s that?” McOlash asks, leaning over Ross.

Ross stares blankly at the picture.

“Remember Barney?” McOlash asks.

“That’s not Barney. Barney never had a black face,” Ross says.

“Yes he did,” McOlash says, softly. “It was only when he got older that his face turned white.”

Barney is being cared for at the animal shelter until he can be reunited with his owner at a nursing home that takes pets.

McOlash flips to the next picture. A group of cats sit in the back of a hatchback car, eating.

“How are the cats?” Ross asks, visibly perking up.

“They’re fine,” McOlash says quickly, though she had the cats euthanized because she knew they were not adoptable.

McOlash flashes a picture of Ross, wearing glasses and standing next to a younger woman.

“Who’s this?” McOlash asks, pointing to the picture of Ross.

“I don’t know.” Ross says.

“That’s you,” McOlash answers.

“I never wore glasses,” Ross insists.

It was the shocking condition of Ross’ house and her person more than any other single factor that convinced public guardian officials that McOlash would not make a fit guardian, according to testimony.

In court, public guardian investigators testified that Ross was filthy and appeared to be malnourished, and that her bedroom was covered with animal feces. If McOlash had done such a poor job of providing for Ross’ needs in the past, they argued, why appoint her as conservator now?

“Certainly if a person has a deformed arm, and they haven’t had medical treatment for years, you can’t ignore these kinds of things,” said Deputy Public Guardian Joe Lehosit, who testified during the trial.

Citing privacy laws, Lehosit would not discuss the specifics of the Ross case with a Times reporter. Rheinheimer also declined comment, saying the case is still pending before her.

However, Lehosit did explain the factors the public guardian considers when choosing a conservator.

It is not extremely uncommon, Lehosit said, for the public guardian to recommend against the appointment of a friend or relative, particularly when the relationship between the two demonstrates the guardian cannot exercise the necessary supervision.

“It occurs more frequently than I wish it did, but sometimes you have to make those decisions based upon what’s best for the conservatee,” Lehosit said. “We would like to see a family member or friend appointed, but in our view, we can’t ignore the testimony and information that comes to us.”

Out of a staff of 60, the agency has nine investigators who specialize in conservatorships for the mentally ill. Each one typically handles about 85 cases.

In Orange County, Lehosit said, the agency often encounters cases involving elderly abuse. “People use their closeness with a person to win their confidence,” he said. “The next thing you know, they’ve got their checkbooks.”

McOlash’s minister, the Rev. Gary Barmore, rejected any suggestion of impropriety on McOlash’s part.

“She is purely altruistic and does not possess an ounce of selfishness or self-concern,” Barmore said. “She takes on helping people who most of us would just sort of pass on by.”

Barmore said he made McOlash the subject of one of his recent sermons.

“I was talking about the fact that caring for your neighbors exacts a cost on you,” Barmore said. “Here was an example of people who paid a price because they cared--emotionally and financially.”

The public guardian’s major criticism of McOlash was that she should have sought treatment for Ross. Despite the elderly woman’s objections, they argue, McOlash held a durable power of attorney for Ross’ health care and the legal document gave her the power to act as Ross’ agent in health matters.

Other legal experts disagree, however.

“By signing a durable power of attorney a person does not surrender their rights to make their own decisions,” said Robert A. Bryson, an Orange attorney who has practiced probate law for 25 years. “If the woman refuses to cooperate, it just wouldn’t work.”

Furthermore, durable power of attorneys for health are a relatively new phenomenon, experts said.

“They were designed to deal with patients who can no longer make health care decisions for themselves,” said William McGovern, a UCLA law professor. “But they’re relatively new and no one is quite sure what all they’re supposed to do.”

Meanwhile, McOlash’s lawyer, Laura Hinrichs, says she will appeal the case if Rheinheimer declines to reconsider her ruling.

” . . . Everyone at Leisure World probably has a trust,” Hinrichs said. “That someone could come in and upset those plans--that’s what this fight was all about.”