Conservatorship Lawyer Caught up in Family Guardianship Controversy
February 19, 2010
The San Bernardino County Sentinel
Redlands-based lawyer J. David Horspool, an elder law attorney who has made a career out of the lucrative practice of conservatorships, is no stranger to court proceedings. Ironically, Horspool is now involved in a bitter legal battle concerning the conservatorship of his own father, Raymond Horspool, Sr. The elder Horspool was put under a conservatorship in July of 2006, in a legal proceeding launched by three of his nine children–J. David, sister Karin Horspool (also an attorney) and sister Margaret Updike.
J. David Horspool is chief counsel for Redlands conservator Melodie Scott, whose business practices have been under scrutiny by the California Department of Consumer Affairs, the San Bernardino Grand Jury and other entities.
Black’s Law Dictionary defines a conservator as a “guardian or protector.” Conservatorships are generally initiated through court proceedings, when there are allegations of lack of capacity or incompetency. Upon initiation of a conservatorship of estate, all assets are transferred into the care of the professional conservator. A conservatorship of person places all personal decisions into the hands of the conservator, including choice of where to live, whether or not the conservatee can marry and whether family and friends will be permitted to visit the elderly or infirm party.
At a hearing in San Bernardino Probate Court, Updike declared that her father, Raymond, was suffering from dementia and short term memory loss and that his pension and savings were at risk because he had mailed checks in response to a purported mail scam, wherein he was requested to mail in money prior to receiving a prize. Judge Frank Gafkowski granted the temporary conservatorship to Updike on the spot. Raymond Horspool, a WWII veteran and former chemist, was not in court nor was he represented at that hearing.
In 2003, prior to the initiation of the conservatorship, son William Horspool was granted a piece of property on Barrett Street in Riverside by his father. In 2005, the elder Horspool removed his name from the deed, thus making William the sole owner of the property. Judge Michael Welch later reversed the gift made by Raymond Horspool, Sr. and ordered the property into the hands of J. David Horspool and his brother Raymond Horspool, Jr. The brothers then moved for the eviction of William, his wife and young children.
Unbeknownst to several of his siblings, J. David Horspool had amended the Horspool Family Trust, originally set up in 1996 by the elder Raymond and his wife, Margaret. The amendment, executed in January of 2003, essentially named himself and brother Raymond as co-trustees. In addition, David and Raymond, Jr. secured the signature of their father on a durable power of attorney, also in January of 2003. This document was pivotal in later launching the conservatorship in 2006 and the subsequent attempts to remove William Horspool from the Barrett Street property.
The Sentinel has obtained a copy of the durable power of attorney, which appears to be inadequately witnessed and dated, and thereby in itself may cast doubt on the legal standing of the document.
A protracted legal battle ensued. Three of the Horspool siblings have stated that they were not notified of the launching of the conservatorship proceedings; however, the attempts to derail the conservatorship failed and William then tried to secure his property rights, as his own brothers and sisters Karin and Margaret moved to take over his home. Riverside County Sheriff’s deputies came out on at least one occasion intent on forcibly removing William from his house. They were blocked by a last-minute legal maneuver by his sister, Barbara Howard, who was on site and claimed possession of the property.
According to Barbara Howard, eight officers showed up on the morning of April 15, 2009, with guns drawn. She recalls at least one officer had a semi-automatic rifle in hand. The officers forced the occupants out of the house “at gunpoint” until it was determined that Howard’s stated right of possession would be honored. On January 27, 2010 the Fourth Appellate court reversed the decision by Welch and authorized the property to remain in the possession of William until trial commences in April.
Barbara Howard has maintained that the conservatorship has resulted in abuse of their father and a severing of close family ties. In November of 2007, William Horspool called the Riverside County sheriff’s department to report that his father was being neglected by the conservator, Margaret Updike. He purportedly had taken photographs of his father, lying in a bed soaked in urine and excrement, with rashes in evidence on his lower parts. William Horspool contends that he did so on the advice of the San Bernardino Adult Protective Services and after speaking with the San Bernardino County district attorney’s office.
According to Howard, the sheriff’s deputies arrived and allowed attorney David Horspool and Updike a good forty five minutes to go in and clean up Raymond before the deputies entered the house. When William filed the photos with the court, Judge Welch ordered the photos removed from the court file and issued a restraining order against William.
William Horspool has not seen his father in over two years. Barbara Howard, who is a travel agent living in Los Angeles, states that she has also not seen her father for a year-and-a-half. “I’m afraid if I go see him that David will get a restraining order against me, too.” she says. She states that the conservatorship has split up the once close family, and has produced an irreparable schism among the adult Horspool siblings.
“I had no idea what my brother David was doing before he put Dad into the system,” she stated. “I thought he was helping out elderly people. I had no idea what he was really doing to people.” She states she then spent hours researching her attorney brother and was “horrified” at what she uncovered.
“He is like a terrorist,” she stated. “He is terrorizing the elderly and he terrorized my brother, William.” William, who is a retired peace officer, was ordered by the court to turn in his firearms as a stipulation of the restraining order. In a recent interview, Howard stressed the fact that William never had an evidentiary hearing on the restraining order. In fact, the document issued by Judge Welch on the restraining order lists no one as being in court for the hearing, buttressing Howard’s contention that the court violated his right to due process. “It is just incredible that someone can lose access to a family member and lose their Second Amendment rights without ever having a hearing,” she stated.
“It must be so hard for Dad,” she says. “William and he were so close. I’m sure he doesn’t understand what is going on.”
David Horspool has taken a number of exceptions to statements herein. In a lengthy email to the Sentinel, Horspool first railed against the Sentinel’s reporting on conservatorship issues as fraudulent and false. He then took his sister Barbara Howard to task, accusing her variously of “perjury,” “biased ramblings” and “complaining.” He disputed the assertion that Scott’s business practices have been under scrutiny by the Department of Consumer Affairs and the San Bernardino Grand Jury as “untrue.”
In fact, the Professional Fiduciary Board, which is an agency in the Department of Consumer Affairs, denied Scott’s license in August of 2008 and has been the party of record defending this decision as Scott then appealed the decision in an administrative court hearing.
While administrative law judge Melissa Crowell has not yet tendered a decision in the appeal, the final outcome lies in the hands of the executive director of the Department of Consumer Affairs, who will review and either approve or deny the decision by Crowell.
The Department of Consumer Affairs has been provided with a copy of a rambling voice mail to the Sentinel from an apparently inebriated Scott, in which she stated “You can give this to the FBI so they can look for your body at the bottom of a riverbed.” The voice mail was left in response to an inquiry from the Sentinel, requesting a return call concerning a pending article.
Horspool’s contention that Scott has not been under scrutiny by the grand jury is belied by several sources. The Los Angeles Times broke the story that Scott was under a grand jury investigation in February of 2009. While grand jury employee Melanie Vartanian has been tight-lipped about the outcome of the investigation, a source close to Melodie Scott has revealed that two other Redlands conservators, Larry Dean and Christina Erickson-Taube, both of whom at one time worked out of Scott’s office at 25 E. State Street, also testified at the grand jury proceeding and extensively prepped Scott as to what questions they were asked and what answers they gave that investigative body.
In the email to the Sentinel, Horspool vilified his brother, William, stating that: “Dad never asks about Billy. But when Dad was in full possession of his faculties, he referred to Billy as a “con man,” who would never part with any of his own money. This observation about Billy is dead on.”
Horspool sister Dianne Fewkes disputes this statement by her brother David. In a recent email to the Sentinel she wrote, “My Dad does ask me about Billy when I see him and I explain to him about the restraining order, which upsets him. He misses Billy and his boys. I have never heard him refer to Billy as a con man. He has said that of all his sons he trusts Billy the most and that Billy is the only one who has ever paid him back.”
In his recent correspondence with the Sentinel, J. David Horspool said that in his professional capacity as a elder law attorney, he has served as a rescuer, saving the elderly from harm by unscrupulous predators. He wrote, “Furthermore, if Barbara wants to accuse me of terrorizing those who commit financial elder abuse (like Billy did), so be it. The alternative is to leave those unable to protect themselves at the mercy of predators like Billy. Do you have a better suggestion? Do you want more stories like the elderly man in Hemet who ended up buried in a concrete shell in his backyard while the person who befriended him and became his ‘caretaker’ took the elderly person’s money after killing him? Do you really want this? This is essentially what both Barbara and [the Sentinel] are advocating, by supporting Billy’s position in this family dispute.”
However, Dianne Fewkes flatly denies that William Horspool abused Raymond. She writes, “Billy has never abused my Dad either physically or financially. David and Margaret have made this accusation repeatedly but have never produced any evidence. Even when the restraining order was put on Billy no evidence was produced. While Billy was managing my Dad’s finances he saved over $40,000 which he and David put into a CD for my Dad. I wouldn’t call that financial abuse.”
Barbara Howard also rejected the characterization of her brother William as an abuser. She opined, rather, “This sort of abuse is like what David is doing.”
The Sentinel has obtained an email from David Horspool to Barbara Howard, dated August 18, 2006, in which he admits that sister Karin and brother Robert had run up charges on credit cards owned by the senior Horspool. While this is one of the allegations made against William, no concrete documentation of this has yet surfaced and Karin’s and Robert’s names are curiously absent from all the legal accusations about financial elder abuse. Karin Horspool works as an attorney in David Horspool’s firm and Robert works as a prison guard and has also been employed by David’s law firm as a process server.
In a Sentinel article of June 12th, 2009, questions were raised as to financial improprieties and also as to whether a number of conservatees of Horspool’s main client, Melodie Scott, actually died due to her negligence. The list of problematic conservatorships tied to Horspool and/or Scott continues to grow, and includes Stevie Price, Doris Baker, Tina Grube, Una Haley, Freeland Alllison, Lawrence Yetzer, Ann Cole, De’Wayne Cory, Meyon Gaines, Scott Viracola, Daryl Baker, Joseph Quattrochi, Helen Jones, Elizabeth Fairbanks, Carolyn Miles, and now, according to members of the Horspool family, Raymond Horspool, Sr.
Another Horspool sibling, Carol H. Chenoweth, offered her view that the Sentinel “has not let objectivity guide [its] reporting. The article is very one sided and does not report facts properly. All the documentation provides a different picture.
“What seems to be overlooked in this situation,” Chenoweth said, “is that my sisters, Karin Horspool, Esq. and Margaret H. Updike where the original instigators of the conservatorship being filed. It was a last resort effort as my father’s memory was failing, help was needed in the home and my brother William became an obstructionist in the process.”
Nevertheless, Chenoweth insisted, she does “not have any agenda in this and support neither side because of misrepresentations committed.” The Horspool conservatorship would have remained an obscure sequence of events were it not for J. David Horspool’s business relationship with conservator Melodie Scott and the scrutiny given her practices by state and county agencies. J. David Horspool is not the only attorney with ties to Melodie Scott who has attempted to place a family member under conservatorship.
Sherri Kastilahn, another San Bernardino County attorney who has represented Melodie Scott, was sanctioned over ten thousand dollars when her bid to launch a conservatorship over her own step father, Clifford Hughes, met with failure.
Kastilahn’s declaration to the court in support of the need for the conservatorship alleged neglect by her mother, Jean Hughes. The declaration to the court in support of the conservatorship also makes an immediate request to sell Hughes’ property.
At the same time, Kastilahn filed for protective orders alleging elder abuse by Jean Hughes and Kastilahn’s sister, Debra Futryk, Futryk’s husband, Scott and Kastilahn’s brother, Mark Kastilahn.
In his decision of March 15, 2002, San Bernardino Superior Court Commissioner David Proulx denied Kastilahn’s bid for conservatorship and denied the requested protective orders. While he granted some conservatorship fees for the period of time that Kastilahn had forcibly taken Clifford from his home and was supervising his care, Proulx denied her attorney fees.
Kastilahn appealed this decision. The Fourth Circuit Court of Appeal denied her appeal and then sanctioned her for launching a frivolous action. According to Debra Futryk, Kastilahn’s failed conservatorship bid cost them over $20,000 and resulted in Jean Hughes spending over $100,000 in legal fees.
Jean Hughes’s attorney, Richard Millar, formerly the president of the Orange County Bar Association, took the unusual step of reporting a colleague to the State Bar. His five page report to the State Bar, dated March 29, 2002, lists perjury, impersonation and destruction of evidence/obstruction of justice as the alleged charges against Kastilahn, and details specific actions such as Kastilahn forging her step-father Clifford’s signature on a trust document, “destroying or attempting to destroy evidence of said forgery by taking scissors and removing portions of the purported signature of Mr. Hughes,” “Inducing her secretary…to remove Mr. Hughes’ signature from her notary book by pasting blank paper over the signature,” and Kastilahn impersonating her own mother, Jean Hughes in an email to a third party, among other acts.
The State Bar’s response was terse. “There is insufficient evidence to establish that Ms. Kastilahn has engaged in any misconduct,” wrote Erin McKeown, deputy trial counsel, in a letter dated July 31, 2002.
Scott Futryk expressed amazement as to how Sherri Kastilahn could have later ascended to the position of president of the High Desert Bar Association. She has also served as a judge pro tem in San Bernardino County Superior Court. “What she did to to her mother, Jean Hughes, as well as to Cliff constitutes elder abuse,” Scott Futryk declared in an interview last week. “An attorney friend, an expert in elder law, explained this to us but at that point we had no money to pursue her,” he said.
The order from the Fourth Appellate District Court stated that Sherri Kastilahn should “report the sanctions order to the State Bar of California (Bus. And Prof. Code 6068).” The State Bar of California lists Sherri Kastilahn as a member in good standing, with “no public record of discipline” and “no public record of administrative actions.”
Calls to the State Bar inquiring why the sanctions were not listed were responded to by attorney Kristin Ritsema. While unable to state whether the Bar investigated the complaint against Kastilahn, Ritsema stated that “all complaints are reviewed by an attorney but not every complaint is investigated. “ She denied that there was any “special list” of attorneys who were given a pass when complaints were tendered against them.
Sherri Kastilahn did not respond to the Sentinel’s calls.