Adult guardianships: how the probate system trumps “unalienable rights”

Guardianships (also called conservatorships) are legal instruments once largely associated with caring for minor children or perhaps the elderly, but as adult Americans of all ages are increasingly targeted for this status – sometimes under quite questionable circumstances – a closer look is needed at both this freedom-diverting tool and the probate courts in which these actions occur.

Probate courts are often seen as quiet, low-profile venues that perform administrative oversight when people die. The power of these courts is underestimated as they routinely control assets worth millions, even billions, of dollars. The Declaration of Independence proclaims individual’s endowment by our Creator “with certain unalienable rights, that among these are life, liberty and the pursuit of happiness” yet with the stroke of a pen, probate judges routinely strip adult Americans of these very rights.

Guardianships can be executed over a person, over their estate or both. Legal declarations of incapacitation or disability are a powerful tool of probate courts and appointed personnel. Anyone seeking to dispute such actions faces expensive, time-consuming court battles in an often biased system that values legal gamesmanship and cronyism, not right and wrong.

Guardianships/conservatorships are currently in the news with speculation that actress Lindsay Lohan could soon be conserved while rumors indicate Britney Spears might be released from hers. Under such a status, a person cannot enter into a contract. They typically lose access to and control of their financial assets and physical property. They can make no decisions regarding living arrangements or medical treatment. In the case of entertainers like Lohan and Spears, career management decisions are no longer their own thus allowing a guardianship’s impact to last far past any termination – should in fact that happen.

Complete disregard for a ward’s wishes is easily accomplished and accepted under the guise of “acting in the ward’s best interest.” As guardianships provide much opportunity for exploitation, the administrative ease with which many are initiated is a concern as also is the minimal oversight that follows.

A guardianship can be initiated by anyone. Family members were once a common source of petitions, but today’s actions can involve social service agencies, professional guardianship companies, attorneys or other “interested parties” with linkage to the proposed ward. It’s become a lucrative business and motivations don’t always well serve the ward.

The power seated in a guardianship is massive yet one need not have massive wealth to be an appealing target for an abusive guardianship. The pursuit of assets is an obvious motivation for abusive guardianships. Wards without assets appear to have “headcount” value as participants to fill the rolls of taxpayer-funded programs. Similar stories across the country surface in which Adult Protective Services (APS) employees, professional guardians, other social workers to medical personnel responsible for evaluations (physical and psychological) and even proprietors of facilities that house incapacitated or disabled individuals involve themselves in some questionably motivated guardianship cases.

The true number of American adults under guardianships is unknown. According to the National Center for State Courts, an accurate count of open adult guardianship and conservatorship cases does not exist and collection of reliable data poses numerous problems. This also helps hide the use of guardianships for illicit purposes, but growing anecdotal evidence cannot be ignored.

Ginger Franklin, 52, of Nashville was conserved after a 2008 fall left her with Traumatic Brain Injury (TBI). Despite a 2009 doctor’s release citing Franklin’s recovery with “no restrictions,” the conservator has made no effort to terminate the dependent status and instead mandated Franklin to continue living and working in a group home with mental health patients. In this setting, Franklin reportedly cooks meals, grocery shops for hers and other group homes, dispenses medication, enters data into the home’s computer system, cleans the home as well as cleans the owners’ private homes and those of select relatives. Franklin has directly petitioned the Davidson County probate court to terminate her conservatorship.

The Arizona Republic has spent the last two years investigating probate abuse in Maricopa County. The case of Edward Abbott Ravenscroft illustrates a personal downturn being questionably used to gain control of a person and their property. Nashville singer/songwriter Danny Tate’s conservatorship follows a similar pattern as does the case of Florida resident Stewart Rosenkrantz.

Frank and Chila Covington, a couple from north Texas, are parents to Ceci, 39, who was born with Down syndrome. Although Ceci thrived in her parents’ home, the Covingtons decided five years ago to relocate their daughter to a group home in preparation for a future in which their caregiving abilities would cease. After a couple of years, the home and the Covingtons disagreed over putting Ceci on psychotropic drugs. From there, the couple was reported to APS and in an ex parte (emergency) hearing, guardianship of their daughter was removed. More than a year and $55,000+ later, the Covingtons have a guardianship removal hearing scheduled. A similar dispute over treatment caused Kathie Seidel, another north Texas resident, to lose rights to her daughter Katia.

The family of Deartis Preston, a 52-year-old mentally disabled man, is fighting a court-appointed guardianship which they say over five years has generated nearly $450,000 of payments to court-appointed officials.  Additional stories of suspicious guardianships at told at HelpBringGaryHome.com and Operation Golden Gavel: Investigation and Prosecution of the ‘Guardianship Mafia’.

Legal industry insiders who work the probate system rely on talking points that claim to protect incapacitated people and blame disgruntled family members for expensive litigation. They cite allegations of procedural improprieties as exaggerated even “willy-nilly” and claim the lucrative appointments of guardians, attorneys or even physicians are about proper representation, not exploitation.

Whether initiated by the government or an individual, something is wrong when a state-sanctioned racket hijacks its citizens personal liberty and property. It is equally wrong for parties controlling or associated with the guardianship process to establish what strongly appears to be a self-serving contrived system to facilitate financial gain through a “spend down” of private assets, indirect gain by adding wards to an institutional headcount eligible for taxpayer-financed services or a combination of both.

This tool of the probate court may have been conceived as a protective measure for society’s most vulnerable, but today, its use for far darker purposes seems to be growing. This is no longer about what might happen to your grandmother – it’s about what can happen to you.

Forewarned is forearmed!

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.

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  • Shannon

    In Cook County Illinois, the probate courts are utilizing OBRA Special Needs Pooled Trusts to exploit the disabled wards. The judge orders their estate to be placed into the trust, thus “protecting” the estate. Once in the OBRA, the estate cannot, per law, be utilized for housing, clothing, or food. But it can be used for “administrative fees” (read: Atty and guardian fees) and medical bills.

    Once the OBRA is established, and the estate cannot be used for housing, the ward is placed in public aid, and the $$ goes to legal and guardian fees. Any help in exposing this is appreciated. People with modest estates, are exploited in this manner. Larger estates go into different types of trusts with the same outcome (don’t know name of those trusts for sure).

    Lawyers in Cook County IL specialize in “Medicaid Planning”….the rich and poor all are given equal opportunity to hide their estates in “special” trusts, and then they, too can live in public aid nursing homes. And the lawyers and guardians get rich…. Huge scam…Medicaid abuse and fraud big time.

    The OBRA’s were originally created to help accident victims with life-long ventilators, etc., place their $$ into trust for the medical needs. The loop hole is the “administrative fees” that can be paid from the trust….
    Can you find out more?? I need help.

    Look at Janna Dutton….she educates her peers in Cook County in Medicaid Planning.

  • Meg

    Well put. It is happening to children, adults and the elderly. They are the new real estate closing income, but much more profitable.

  • http://www.guardianshipscam.com Sharon Denney, Seattle, WA

    “Administrative fees” is little more than a euphemism for “costs of predation” or “predators’ compensation.”
    For $3,000 to $5,000 a month, a nursing home offers around the clock care, food, lodging, therapies, activities, the list is endless. For $10,000 + per month a guardian offers an endless compilation of reviews, consideration, calls, discussions, conferences, and then, throws in a few sloppy generic reports. None of the above – if they, in fact, occured, benefit in any way the life of the unfortunate client.

    The guardian’s attorney charges double the amount of the guardian for seeming to have been velcroed to the guardians’s hip. How many small businesses could continue to exist if they used attorneys this excessively? Outside of a few court appearances, the ubiquitous attorney charges for the same nebulous activities of the guardian. This despite the fact that attorneys are restricted to necessary legal work. An examination of their charges indicates that most of the “work” was neither legal nor necessary.

    The guardian wastes no time yanking the elder from the homestead and plunking him or her among strangers. This is usually to make sure that the house money is available to the guardians and their attorneys to “earn” before Medicaid can can permit the elder to remain in the home with remuneration to be made after death. When it comes to having to share with Medicaid, the wishes and preferences of the elder matter not a bit to those assigned to “protect” them.

    Once the elder is out of the home, and the keepsakes of a lifetime sold along with the homestead, the attention turns to the family. The guardian and attorney will fight every effort of the family to be a part of the guardianship or to address the needs of the elder loved one. Why not? It doesn’ t cost them a cent. It gets the money into their pockest a lot faster than all the pretended conferences, etc. The guardian and attorney can use the elders’ estate to fight the family. Win or lose, they will be paid from the fruits of a lifetime’s labor. The family. however, can go bankrupt trying to free or even just to help the loved one. Just something as simple as getting special treats to the loved one can cost the family thousands of dollars and put double that amount in the pockets of the guardian and its attorney. If the family protests too much, they and the one they love will be punished by banishment.

    The number of victims is growing as baby boomers enter the senior ranks. What is also growing is the committment of the victims to expose and bring down this crime and these criminals. Many folks are trying to inform the “innocent” as to what is happening – this is critical as our stories are so outrageous and folks are inclined to believe that “there are two sides to every story.” While true in many instances, not true at all in guardianships. Some are working with the SC’s of their states, with state legislators, or with the executive office. Efforts to get changes on the national level are occurring with regularity and seem to be taken seriously by leader on that level.

  • Vernnena Staab

    Ms Denny;
    Thank you for all the work you are doing. It is great! They are also throw people in Stielacomb till they have depleted all their asset– another type of theif.

    Thank You Vernnena

  • Lauren

    Since 1997 my family and I have been subjected to the evils of a corrupt and unconstitutional conservatorship program. San Mateo County California probate courts allow their public guardians, court investigators, and attorneys to violate constitutional rights, perjury, make false statements, and physically abuse elderly persons and their families.
    Without any evidence of incapacity, or abuse, my mother was railroaded into a conservatorship. She was never allowed to attend any hearings or object to the conservatorship.
    My family and I were slandered, defamed, and denied due process of law. Any time we tried to object or address the actions of the probate mafia, the money from the estate was sucked up faster. In order to preserve the little money left in mom’s estate we are forced to submit to the mental, physical and financial abuse of the conservatorship mafia.

  • Peter Mandell

    Well I was in a motorcycle accident in June of ’09, and soon wound up in Probate Court being conserved by the Honorable Reva Goetz. It was always temporary, and it was removed earlier this year (after about a year and a half) After attorneys fees, bonding fees, probate accounting fees and all sorts of other fun stuff, this ‘conservatorship’ cost me close to a million dollars. What a great name, ‘conservatorship’. It sounds so benign. It’s like when I recently had my cat Clarabelle ‘put to sleep’. Well, it turns out she was lethally injected, but that doesn’t sound quite as nice. The term I prefer, “Financial Holocaust’, doesn’t seem too popular whenever I suggest it, but thats exactly what it was.

  • Anonymous

    Sharon Denney, Your determination to expose guardianship realities is inspiring for those of us who find themselves and their families being subjected to these travesties of what was supposed to be justice. My one hope for the future would be for all the families who have fallen victim to a court appointed guardianship to be able to stand together and change the future laws for all Americans. When my family thought it could not get any worse, it did. Once again your perserverance in this arena of guardianships is inspiring and gives us hope.