The Asbury Park Press Investigations Team ran a shocking four-part series exploring guardianship abuse. "Betrayal of Trust: Stealing From Seniors" features the story of a New Jersey elder law attorney and court-appointed guardian who stole millions of dollars from over 16 wards under her supervision, including seniors in their 80s and 90s.
The court-appointed guardian threw some elderly wards into nursing homes and sold the wards' homes. She even changed their wills to financially benefit her at the time of the wards' deaths, according to the article.
If you think that this case is rare, think again.
Cui bono, or To Whose Benefit?
In the second blog post of the series, we learned that managing the incapacitated person's estate for the benefit of him or her is a major responsibility of the conservator, also known as the guardian.
Yet localized studies on conservatorship and guardianship proceedings found "little benefit to the incapacitated persons" but instead suggested that many petitions were filed for "the benefit of third persons," according to a report titled "Wards of the State: A National Study on Public Guardianships."
Court-Appointed Protectors Often Overstep Their Authority
Conservators and guardians are often given overbroad authority over conservatees' and wards' lives. Stories of conservatees and wards being isolated or imprisoned by court-appointed protectors are far too common.
Catherine Falk, the daughter of the late Peter Falk, fought for her right to visit her father after a California Probate Court granted a conservatorship over her father by appointing his then-wife as Mr. Falk's conservator.
Catherine Falk founded the Catherine Falk Organization which is not a fundraising foundation nor takes any donations whatsoever; however, the organization advances and advocates wards rights visitation legislation nationwide. Falk and her former probate attorney from 2009, drafted the Peter Falk Bill completed in 2011 that was aimed at protecting, preserving and respecting the right of all adult children to visit an ailing or incapacitated parent who is either under power of attorney or under guardianship.
"When I first embarked upon the visitation legislation idea, I realized along my journey and crusade that my lens broadened with the realization that visitation legislation must encompass all wards, non wards in or out of guardianship or under POA as well as realizing the silent epidemic of guardianship abuses that are not just with the aging population but among spouses and siblings in guardianship situations." Falk also investigates elder abuse cases and advocates for victims experiencing their most treasured freedoms that are being violated by offering wonderful resources and support to those in need of help.
"My ultimate goal is to have model visitation legislation in every state that emphasizes wards rights legislation, not just parental visitation with an adult child because isolation happens among all family members including siblings, spouses, aging parents etc...that the legislation will empower wards by safeguarding their most fundamental and constitutional innate rights while maintaining personal autonomy. An ideal piece of legislation should encompass both," she added.
Poor Court Oversight Is an Open Invitation to Guardian Abuse
As guardianship abuse has gained national attention, the public wants to know "Who's guarding the guardians?"
The U.S. Government Accountability Office (GAO) issued a report titled "Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors" that explored the widespread allegations of elder mistreatment by guardians.
In one case, a guardian embezzled over $640,000 from an 87-year-old Alzheimer's patient. The guardian, a former taxi cab driver, spent the stolen funds on things like a Hummer and exotic dancers. When county employees caught wind of the guardian's misdeeds, they discovered that the victim, who was wearing nothing more than an old knit shirt and a diaper, was living in the filthy basement of the guardian's home.
Guardianships Can Violate People's Civil Rights
The Associated Press published a series entitled "Guardians of the Elderly: An Ailing System" that found the guardianship system is "a dangerously burdened and troubled system that regularly puts elderly lives in the hands of others with little or no evidence of necessity, then fails to guard against abuse, theft, and neglect."
Court-appointed attorneys are assigned to represent the rights and wishes of conservatees (clients) but often fail them. According to Linda Kincaid, MPH, of the Coalition for Elder and Dependent Adult Rights (CEDAR):
"Unscrupulous court-appointed attorneys will sometimes oppose their client's wishes, civil rights, and medical needs. Each time a family petitions the court to protect a loved one, the court-appointed attorney can generate billable hours by opposing the families' requests. Those billable hours are then charged to the estate of the conservatee. Substantial estates are depleted by charges from court-appointed attorneys."
"A Broken System" That Needs to Be Fixed
Los Angeles Times ran a series of articles on conservatorship, calling it a "broken system." Situations were brought to light in which "judges frequently overlooked incompetence, neglect and outright theft" committed by conservators, the The Times reported.
Many conservators abused their authority over frail elders by "ignoring their needs and isolating them from loved ones," according to one Times article.
Instances of predatory practices by professional conservators--who exploited the elderly and stripped them of their possessions by manipulating the legal system--surfaced. Other shady conservators drained elders' estates or chewed up seniors' estates by charging outrageous fees.
Watchdog Group Blows the Whistle on Abusive Guardians
National Association to Stop Guardian Abuse (NASGA) is a longstanding organization that posts, blogs, tweets, and reports on guardianship abuse and rigorously advocates for guardianship reform.
The NASGA calls the guardianship system "a growing menace which feeds on greed." It criticizes the judicial system for its complicity in usurping people's liberties and property. According to Elaine Renoire, president of NASGA:
"It is an appalling, yet accepted practice, for conservatorships to consume the very estates the proceedings are supposed to be protecting. Millionaires who could well afford the cost of their care though end of life, are "protected" into indigence - much to their embarrassment - and then placed on Medicaid at taxpayer expense. Because it's so easy to guardianize a person and because most courts aren't monitoring or holding bad guardians accountable, there is nowhere for wards or their families to go for help. The system becomes a menace because opportunists exploit loopholes and get rich at the expense and detriment of the very people they have been court-appointed to protect."