Probate reform:  Astor case shows need, CA guardian case to show commitment
Lou Ann Anderson
October 19, 2009
www.EstateofDenial.com

Advocates are hoping that the high profile nature of the Brooke Astor estate looting trial will serve as an impetus for increased attention and meaningful reform in the areas of estate abuse and elder exploitation.  In February 2009, the Los Angeles Times reported that in addition to being investigated by a grand jury, the Department of Consumer Affairs denied California conservator Melodie Scott a license due to false claims submitted on her application.  An Oct. 20 licensing hearing is scheduled during which an Oakland Administrative Court will address this matter.  This proceeding will serve as an important example of whether exposure of questionable conduct in probate matters can lead to substantive investigations and actions or if “reforms” might only be viewed as legislative window-dressing designed to give the public a false sense of protection under the law.

The estate handling activities of Scott, president of the Redlands-based C.A.R.E., Inc. (Conservatorship and Resources for the Elderly), and others were highlighted in a 2005 Los Angeles Times series entitled Guardians for Profit:  When a Family Matter Turns Into a Business.  The Omnibus Conservatorship and Guardianship Reform Act of 2006 was passed in response to the series and called for the establishment of a Professional Fiduciaries Bureau as part of the California Department of Consumer Affairs.

The San Bernardino County Sentinel reports that Jonathan Cooper, a deputy state attorney general, will represent the state of California in the action against Scott.  Background on the denial of Scott’s licensure is as follows:

Scott’s application for a license was denied by the Professional Fiduciary Bureau in August of 2008 on the grounds that she had made false statements on her application.  The specific issue pertained to a question as to whether she had ever settled or resigned from a case in which she was a fiduciary and a complaint had been filed against her with the court.

She answered that she had not. The board is maintaining that this is untrue and thus denied her license.

When she appealed the decision of the Professional Fiduciary Board, two subsequent counts were added: 1) that she had continued to work as a conservator/fiduciary following the denial of her license in at least twenty-three cases and 2) that she had received a drunk driving citation.

The Sentinel also reports Cooper initially indicated that testimony of those impacted by Scott in her role as conservator for the elderly or disabled would be used, but “has now tempered that approach and is preparing to offer brief, non-specific statements encapsulating his synopsis of reports that have been provided to him by these putative witnesses to be signed and ‘possibly’ offered into evidence.”

The paper further states:

At least four individuals who feel they have been impacted negatively by Scott have contacted Cooper, seeking to testify as to their experience.  When it was discovered that Cooper was planning on allowing the testimony of favorable character witnesses and not those with opposing testimony, it provoked expressions of frustration by individuals who had hoped to testify at these hearings.

The Sentinel reported this reaction to the inclusion of character witnesses:

Gina Rilke, whose husband Scott Vericola was under a conservatorship with Scott, has written Cooper, stating: “I was not aware that ‘character’ witnesses were going to be allowed at Ms. Scott’s hearing. If this is true, then it certainly seems fair that others who have been victimized by her actions be allowed to testify, as well. Please keep in mind that both Sherry Kastilahn and Christina Erickson-Taube have incurred financial gain as a result of their association with Ms. Scott, to say nothing of personal bonds that may exist. Their testimony would be biased and in their best interest….Ms. Scott has been able to get away with all she’s done for nearly 30 years. This does not happen without many, many people on her ‘team.’ Lawyers, doctors, judges, and a host of others have enabled her to plunder people’s assets and send them to early graves as the result of untreated pneumonia and other health issues. Again, it seems only fair that the facts alone should be able to speak in Ms. Scott’s hearing.”

That some “deal” may be worked out also seems possible as evidenced by past aspects of The Sentinel’s reporting:

In late August, deputy attorney general Cooper denied that a settlement offer was in the works for Scott. He went so far as to suggest that Scott was “lying” when he was confronted with the details of a text message, wherein Scott announced she would be granted her license. He later reversed himself and admitted that a settlement offer was made on August 13, the last day of hearings in Oakland.

While the details of the proposed settlement offer were not released, sources close to Scott hinted that the settlement involved her achieving full licensure in return for paying attorney’s fees and court costs. When this information was made public, several individuals contacted Cooper to lodge their protests and the settlement offer was pulled off the table.

As the hearing approaches, new questions are surfacing with regard to Scott’s ongoing conservator activities.  And it remains to be seen if those allowed to speak for and against Scott will be treated equally.

Conservatorships (or guardianships as they are known in some states) assign the freedom and/or property of a ward to another person or entity.  That’s power.  While guardianships are sometimes needed and all guardians (or conservators) are not dishonest, massive opportunity exists for the unscrupulous who seek out these positions.

Passing laws to prohibit certain behaviors or actions is in and of itself meaningless.  Conscientious administration and impartial execution of laws is required for true justice or reform to be achieved.  The public becomes increasingly cynical as the court system is a part of the legal industry and too often appears reticent in dealing with bad acts committed by its peers.

In the wake of the Astor verdicts, more people are paying attention to estate abuse, elder exploitation and they hopefully are beginning to understand the criminal nature of these acts.  Whether state-sanctioned or family perpetrated, estate looting is wrong.  Regardless the outcome of the Scott hearing, a strong statement will be made about California’s commitment to its most vulnerable residents and the decision will be noteworthy for many people across this country.

Lou Ann Anderson is an advocate working to create awareness regarding the Texas probate system and its surrounding culture.  She is the Online Producer at www.EstateofDenial.com and a Policy Advisor with Americans for Prosperity – Texas Foundation.  Lou Ann may be contacted at info@EstateofDenial.com.