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Lack of recourse for person under predatory state guardianship
Name Withheld
Spring 2010

Feeding the Hungry

Early this spring I read that the Meals on Wheels Program has set a goal to end senior hunger by the year 2020.  With a study showing 6 million senior citizens at risk of hunger in the U.S., they started a campaign to sign up a matching number of people – 6 million  – dedicated to reaching that goal.  Their plan is simple and direct –

1)    Recognize seniors at risk of hunger, and
2)    Act to provide food to those in need.

Their study cited several different causes of hunger.  However, one increasingly damaging cause was not listed – predatory guardianship.  I decided to pay a visit to the Executive Director of the local Agency on Aging, which helps coordinate Meals on Wheels in our area, to discuss this problem.  I explained to him that my Mother had been forced into a hostile guardianship a year earlier, in contradiction of her estate plan documents, by 4 of her step-children who apparently wanted to withhold her care money to increase their inheritance. The recent annual report indicated, among other things, that she subsequently suffered a precipitous weight loss most likely due to inadequate nutrition.  So here we could recognize a person needing better nutrition, but it had not been possible to act on that need all year because such attempts were obstructed by the hostile guardianship.  I asked him, a professional director of services for those in need, how he viewed that and what he would suggest as a remedy.  His response was that there are only 2 recourses – reporting concerns to the state’s Adult Protective Services, or going back to the probate court.  He offered to write a letter to both, thinking that his position might wield some extra influence over the matter.

When I next spoke to him a few days later, he was surprised, apologetic, and worried to see that his letter to the court had been copied and forwarded to a collection of listed parties and appointees that he had not anticipated.  Like most people, he was not familiar with the court process and did not know what to expect.

There is a big difference between the naming of an agent through personal estate documents and the assigning of a guardian by a court.  In estate planning, a person exercises his individual rights under the Federal Constitution by writing his own documents (such as advance directives), and naming his own choices of agent (such as powers of attorney and health care proxies), to express his wishes for the future, not only for death but also and often more importantly, in case of impairment.  By contrast, in a guardianship arrangement, the appointment of guardian is done by a court.  The person is reduced to a ward or “subject”of the state, meaning all his individual rights are removed and he is only allowed to do or have what the assigned guardian will permit.  There are few requirements or qualifications for being a guardian, anyone can petition to start the proceeding, and there is almost no accountability for the position, since state laws are separate from the Federal Constitution and the Bill of Rights.  The court prefers a guardian who keeps things “streamlined” and will condone almost any action done by the guardian if it is claimed to be in “the ward’s best interests”.  All this makes guardianship the ideal platform for unscrupulous people to take control of someone else to get money, revenge, or other gratification.

Predation by guardianship has now become the new generation of hidden white-collar theft in the U.S.  It is more lucrative than credit-card identity theft because the sums of money involved are so much larger – thousands or millions of dollars of estate money compared to $2000 for the average credit-card crime.  It is more dangerous  because the individual is taken hostage as well as the money, and there is potential for various other forms of exploitation.  And it is vastly more difficult to fight because the whole scenario is played out in an unmonitored court system where the lawyers and social work professionals themselves can receive financial gain from the setup. Across the country, damaging cases reveal that malicious people are using guardianship powers to remove elders from their homes, drain their money resources, take or sell their possessions, ignore or cause health problems that will hasten weakness and death, separate them from their families and even their spouses, and then retaliate against those who try to help the victims. This has become a very serious civil and human rights problem.

An Illustration

Consider this illustration of family damage inflicted by guardianship, using a young child such as the new infant of a pastor friend  – a young child is very appropriate to use as an example, because it removes any bias of ageism but exactly matches the legal status of a guardianship ward – having the status of a minor with no autonomy of rights, and being unable to speak for oneself.

Suppose a woman in town decides that she would like to have the pastor’s infant “Isaac” as her child because she doesn’t have a baby and she wants the important look of parenthood (a “gratification” for her), so her cousin petitions the court to have her appointed as “Isaac’s” guardian, claiming he needs better care.  The Smiths (“Isaac’s” parents) object because “Isaac” is theirs and they love him, so the court schedules a hearing.  The Smiths show up at court with “Isaac’s” birth certificate, all his records, and their attorney.  The proposed guardian shows up with her attorney plus 6 friends and relatives to vouch for her.  The judge takes 4 attorneys – the Smiths’, the petitioner’s, the proposed guardian’s, and one she appointed for “Isaac” – into a separate room and closes the door.  An hour and a half later they all come out and she says she has appointed a temporary guardian for a month because the situation poses an immediate danger to “Isaac” and is urgent.

One month later everyone comes back to court, and the 4 attorneys get taken into the back room again.  When the attorneys come out, the Smiths’ attorney shows them a 4-page letter with names typed on it of the petitioner and the proposed guardian and 5 other people, saying that Pastor Smith has caused numerous problems with children in Sunday School and should not be trusted with small children, so it is in “Isaac’s” best interest to have him taken care of by an appointed guardian.  The attorney tells the Smiths that the majority of the participants in the case favor the guardian, so state law rules for her. Once again the Smiths object, saying the statements are untrue and there is no such evidence, but the judge has left and nothing can be done.  The Smiths are sent home with the new guardian in charge of “Isaac’s” care.

Now the Smiths are not allowed to make any decisions themselves about “Isaac’s” care, and all the money for his benefit is taken out of their hands.  Two months later the guardian lifts him out of his crib from his nap and drops him on the floor, giving him a nasty bang on the head and smashing his little hand.  She quickly wraps his hand so no one can notice it and goes on about her business.  When the Smiths next see him, they are dreadfully concerned about his injuries and ask the paramedics to have him seen in the Emergency Room.  The guardian gets mad and drags her retinue of allies to the hospital to bring “Isaac” home.  The next day the Smiths get a letter from the guardian’s attorney saying the guardian is taking “Isaac” to her home because the Smiths are aggravating her too much.  They are free to go and see him, but they are not to attempt to take care of him any more or she will get a restraining order against them.

Four months pass and “Isaac” seems to be languishing and thin under the new arrangement.  Though he smiles when someone comes, he is fretful wondering why his parents aren’t with him much.  Worried sick, the Smiths press Child Protective Services to investigate whether “Isaac” is being properly fed.  CPS visits the guardian and reports  that they saw a baby food jar labeled “Gerber” so everything is fine.  There is no report on whether they actually saw him eat, no explanation about what his full diet consists of, and no doctor’s report on whether he is in proper condition for a child of his age.

Desperate for help, the Smiths contact the court again.  The judge responds that “Isaac’s” new doctor says he has never seen better care of a child than what the guardian is giving “Isaac”.  She also tells them that their repeated complaints constitute an unwarranted harassment against the guardian and a contempt of the order she is working under, and if it continues the court will be forced to restrict the Smiths from having access to their older child as well.  She also sends a letter to the Church Council stating that the court is upholding its original decision to suspend Pastor Smith’s parental authority because of its findings of childcare mismanagement.

The Guardian ad Litem

Does this sound unbelievable?  Unfortunately, it’s not.  What I have described in this illustration exactly parallels the sequence of events that happened to my Mother in her guardianship proceeding.  Going back to my Mother’s case -

In response to the Agency on Aging director’s letter, the court appointed a Guardian ad Litem again.  In legal terms, the Guardian ad Litem is supposed to assist the ward to understand the meaning of the proceedings going on and to help the ward communicate with her attorney.  This one, though, was given different instructions, and the nature of her role was not really clear until later.

The first thing she did was to call the co-guardian and ask how things were.  The next day she called me and asked why she needed to investigate. I listed 4 goals:

1)    Get answers to the inaccuracies in the guardians’ recent financial report
2)    Arrange for a more consistent and supervised plan of care
3)    Enforce the judge’s order that the guardians report to family members once a month on health and finances (did not happen in entire first year)
4)    Make a fair arrangement for visiting

She said that sounded reasonable, but it did not match what others said – that they all wanted my Mother at home but I was fighting against them. She said her plan was to contact each family member – the 4 guardian team members and the 3 others – for his or her opinion, and then it would go back to court.  I said that was good because this had not happened in the initial court process, and I provided her with additional names and contact information.

Her second call came 2 weeks later.  She said the care-giving guardian was constrained by lack of money, since she had only $55,000 and 2 small pensions to be expected to cover care indefinitely.  I told her that was not correct because the other co-guardian just filed a report showing more than 10 times that amount in investments, so somebody had to be lying. She said she would call the trustee because that person wouldn’t lie.  I said it appeared she already had – the trustee had filed the original guardian petition claiming only $50,000 in the estate and omitting the rest, a common tactic used to conceal money exploitation from the court.  The Guardian ad Litem called back shortly to say the larger figure was correct.  She said the care-giving co-guardian had just been “too nervous” to read the number correctly, although it was supposedly her job to help prepare and sign the report.

The next week she called a third time and said she was ready to turn her report in to the court.  I asked if she had contacted the oldest boy and she said no – the others said he had mental problems and she shouldn’t talk to him.  (The “mental problem”, of course, was that he didn’t agree with them and they didn’t want her to know that.)  So I said what about my interview, and she said she wasn’t going to do that either. I told her I had some important things to show her, so she reluctantly said she would see me at her real estate office the next day at 1:30, but she said I was not allowed to show anything that the judge had barred from court before.

The next day my husband came home before lunch so he could go with me.  At noon the phone rang and it was the Guardian ad Litem.  She said, “Are you bringing someone with you?”  I said yes, spouses have been participants in the discussions.  She snarled, “You’re not doing that at my office!  I talked to the doctor this morning, and he and all the siblings said watch out for you – be very, very cautious – you’re going to try to have me watched and corner me. No one comes with you!”  It appeared that the co-guardian across the road had made a fast call to her when she saw out the window that my husband had come home.  “And be aware,” she went on, “the doctor says your mother is in the best condition of any 85-year-old he has ever seen in her situation. She certainly isn’t going to die any time soon!”

At 1:35 I walked into her office with nothing.  I said I was there to hear her recommendations for her report, and that I understood why she was confused about the conflict when everyone seemed to want my Mother at home.  I explained that it was the trustee who originally wanted to reduce care expenditure to keep more money for inheritance, so the guardian process had been started for the very purpose of moving my Mother out to a nursing home to be cheaper, but when the real trust amount was revealed, the trustee had to change her story.  The Guardian ad Litem wanted to know if there was anything about that in writing that could go to court, and I said yes.

Then she said she was recommending that 2-3 more caregivers be hired, but she said the co-guardians claimed I kept filing unwarranted complaints and was causing a problem.  For the 3rd time, she said the matter would be going back to court, and this time she also said the doctor would show the court the letters I had written him requesting information about my Mother, as if that should be a threat to me, even though the letters were written exactly as instructed by the HIPAA rules. And finally, she said again that the doctor emphasized what excellent condition my Mother was in for an 85-year-old, to counter my concern about suspected malnutrition.

“If that’s the case,” I then asked her, “why did he put her on hospice?”  There was a long silence.  (Hospice means a doctor has given statement that a patient has a terminal diagnosis with less than 6 months to live, and the Visiting Nurses had let slip that “weight loss” was her “terminal diagnosis”.)  Finally she asked, “Is she on hospice now?”  I said I didn’t know because no one would release any information.  Clearly, either she did not know about hospice, or I was not supposed to. Something was certainly suspicious.

Then I asked her how she had taken an interest in the work of Guardian ad Litem.  She said the judge picked her after observing her at jury duty defiantly challenging the recruiters for supposedly treating her differently from the male jurors.  Sitting back in her chair puffing with importance, she said, “There are 7 of us in this judge’s group and I love it!  I’m not afraid of anybody!”

Suddenly it was all clear.  Her job, like that of the Guardian ad Litem a year earlier, was to discover what I would bring to court, and either warn the judge to block it, or intimidate me to keep quiet.  That way nothing would interfere with their apparently pre-arranged guardian set-up, and the judge could continue her stellar performance of ramming 400-500 guardian cases a year through her court at the expense of justice.

Return to the Agency on Aging

More than a week passed before the court’s letter arrived.  As expected, it said more help should be hired, but it also claimed there was no validity to any of my complaints.  Instead of arranging an open discussion of verifiable facts, the court had moved to prevent evidence from surfacing again by barring any hearing from being held at all.   That made the Agency on Aging director look like a fool for trying to intervene, so I went back to review the letter with him and explain what had really transpired.

First, I asked if the commissioner of Adult Protective Services had contacted him, because she had not contacted me.  He said she wrote him a letter saying I just kept making unwarranted complaints.  I said that wasn’t true because:

1)    There were 7 complaints filed about my Mother’s situation over the past 3 years and only 2 of them were mine.  The APS supervisor herself, who refused to show me any of the other 5 reports precisely because I was not the reporter for any of them, confirmed that.
2)     The 2 complaints I did make were not unwarranted – one was against the rehabilitation Health Care Center for such negligence that my Mother ended up in ICU with near-fatal dehydration (not resolved by APS), and the other was to account for $27,000 that was diverted away from my Mother’s bank account by an out-of-state relative (also not resolved by APS).  Of the 5 filed by others, one had actually been filed by one of the co-guardians herself, apparently a false frame-up charge to try to dismiss a very good caregiver she was jealous of.

Second, we discussed the court’s report.  The good part was that they finally acknowledged what trust money was there and that it was intended for my Mother’s care.  But the bad part was that once again the court was shutting out the evidence in support of my Mother’s position.  She was still held hostage in a forced care arrangement she did not choose, suffering hunger, injury, diminished care, and isolation from family and friends.  Then I specifically pointed to the part of the report about the doctor’s assessment refuting my concerns about her malnutrition – the story had been deliberately changed from saying my Mother was in “excellent condition” to saying she was in “excellent care”.  That is a very significant difference.  Since we no longer have a statement that her condition is good, the door has now been opened again for her re-entry into hospice on Medicare (fraud?), or deterioration of her health, or both.  And all of it is under the complete control of the guardian with the power of total secrecy.

The director appeared at a loss.  “I don’t know what else I can do,” he said.

“That’s the whole point,” I told him.  “Here you are the director of a major service organization serving many clients across a very broad region, but in the face of this situation you are completely helpless. This is a person that we can recognize is not getting the quality of care or the choice of care she wanted, but we are unable to act on that knowledge to improve her situation because of the obstruction of this hostile guardianship.  From this you can see that there are not two recourses available to her, there isn’t even one, because the system functions in a way biased to serve those who would take advantage of the impaired person.  All this so-called report amounts to is another page in the chapter of cover-up.”

Conclusion

Exploitation of the elderly is a growing crime nationwide.  Predation by guardianship is a dangerous and rising problem because more people are retiring with their estate funds in private holdings, which a predator can seize through a guardianship proceeding while having everything made to look legal.  It is analogous to piracy, where the pirates seize valuable cargo by taking a ship captain hostage, or to trafficking, where the traffickers use their victims for labor or financial gain and then confiscate the money.  Studies show that where financial exploitation exists, other forms of abuse are likely to exist as well, and are often extended against those who try to help the victim. And the problem is made all the worse because opportunistic people in the legal and social work positions can draw significant gain for themselves from these set-ups.  This is a serious civil and human rights problem that will require national attention and action.

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Stories of Denial