THE TRAGEDY OF GUARDIANSHIP FRAUD
Originally published in PPJJ Gazette
© 2010-2011, Angela V. Woodhull, Ph.D.
This essay examines conditions in Florida but the same problems exist in many states
The professional guardian [or conservator], with the assistance of her attorneys, commences the embezzlement process by filing an emergency petition in the probate courts to become the "emergency" "temporary" guardian.
The guardian oftentimes fabricates the "eminent danger" by stating that there is a neighbor or relative or stranger who is taking advantage of the elderly person. In some cases, this may be a somewhat true statement, albeit an exaggerated claim. In most cases, upon further investigation, there has been no "eminent danger" whatsoever.
Once the professional guardian has taken control of the victim on a temporary basis (the emergency temporary guardianship order expires in 60 days [in Florida]) an examining committee of three medical "professionals" steps in to verify the allegation of mental incapacity. Oftentimes, the victim is administered a cocktail of psychotropic drugs to enhance the claims that he or she is incompetent.
"Ward" Elizabeth Faye Arnold, for instance, stated, "They put me on drugs that made me feel very drunk. I couldn't even remember my name. Now that they have all my money, they don't medicate me that way anymore." One of the three medical professionals must be a psychiatrist and the victim is generally always found to be mentally incapacitated. The guardian usually has her own set of medical professionals that she utilizes on a regular basis. For instance, one professional guardian is married to a medical doctor and therefore has an entire fleet of medical professional associates available to her.
Back in the courtroom, soon after the three medical professionals file their reports, there is a capacity hearing. The victim seldom is permitted to attend this hearing. The judge quickly scans the medical examinations that "verify" that the victim is "mentally and/or physically incapacitated." The judge then signs an order that gives the professional guardian full and permanent legal authority over the victim's person and property.
Property is sold for below market value and the deeds switch and switch several times. (kick backs are suspected). Bank accounts, annuities, stocks, and Certificates of Deposit are liquidated into one big guardianship account.
A large part of the victim's money is spent on attorney's fees and guardian's fees. As long as there is ample money in the victim's guardianship account, the guardian and her attorney cohorts will file motion upon motion after motion to the courts, such as:
Each motion can cost the "ward" in excess of $2,000 because the motion must be written, researched, filed, and then a hearing is scheduled. Oftentimes, the motions cost more than what is being petitioned for.
The guardian underestimates the amount of the sale of personal items, such as jewelry, paintings, and antiques, for the purpose of the court record inventories, then is free to keep the difference. There is little and often no court oversight.
Oftentimes, the bills of the "ward" are not even paid. When the "ward" dies, the guardian simply places an ad in an obscure newspaper, if there is money left for an estate to be probated.Assuming creditors do not see the ad and file a claim against the estate within 30 days, their claims are forever barred and so the guardian was able to fool creditors and abscond with the money and not have to pay any of the bills. If she is caught, she simply pays the bills of the creditors who caught her. This frequently includes Medicaid.
In this scenario, the guardian claimed that Julie Sweeten desired to leave her estate to her bank. A forged will was entered into the record. Wachovia Bank trustee was then given $80,000 from the uncontested, probated estate.
NASGA, National Association to Stop Guardianship Abuse, has adopted a three part theme to succinctly describe the legally sanctioned exploitative guardianship process:
When you hear the word "professional guardian," what do you think? Do you think of someone who protects the elderly? Assists them with their daily needs? Guarantees they are protected from financial exploitation and physical neglect?
The pristine image of professional court-appointed guardians who allegedly protect the elderly is being challenged. Grass root organizations, such as the National Association to Stop Guardian Abuse (N.A.S.G.A.) and Advocates for National Guardianship Ethics and Reform (A.N.G.E.R.) are claiming that professional guardians, their attorneys - and even judges - need to be watched.
• May 25, 2010. Latifa Ring of Elder Abuse Victims Advocates addressed the Committee on the Judiciary, Subcommittee on Crime, Terrorism and Homeland Security stating, "... exploitation in guardianships is rampant. It is largely kept out of the public eye under the guise of 'protection.'"
These "unproven and often false allegations" commence a flurry of legal activity that can only be likened to Charles Dickinson's Bleakhouse. While family members are forced to spend thousands of dollars defending themselves against the false accusations, these same accusers - oftentimes, the professional guardians– handsomely profit from the legal havoc they create.
Take, for example, the recently widely publicized case of Clay Greene and Harold Scull, a gay couple who had cogently cohabitated together for more than 20 years, rendering mutual durable powers of attorney, wills, and other legal declarations upon one another. When Scull, 89, unexpectedly fell onto a stone patio, paramedics were called and the local sheriff department hastily alleged that Greene had intentionally shoved Scull to the ground. Yet, despite the fact that all charges were subsequently dropped, the public guardianship office for Sonoma County used the already disproved physical abuse allegation to commence an involuntary guardianship against Scull. Scull was removed to a nursing home, isolated him from Greene, and the couple's jointly owned property which included valuable paintings, expensive Persian rugs, antiques, silverware, jewelry, and real estate - was sold for far less than appraised value - at least according to the court records. It was later discovered that the items had been sold for far more by the public guardianship office.
These types of guardianship irregularities have sparked a guardianship task force Special Committee on Aging, which reported, "...guardianship...has the potential of harming older adults rather than protecting them...The...continuing reports of the failure of courts...to prevent [financial] exploitation of incapacitated adults by their guardians have long been of concern to this Committee."
"This victory sends an unmistakable message that all elders must be treated with respect and dignity...and that those who mistreat elders must be held accountable. [But] Even as we celebrate this victory...we are deeply troubled that the Sonoma [County] continues to refuse to take responsibility for their egregious misconduct...We urge every citizen...to demand more oversight of the Public Guardian's office. They need to be watched."
Is elder financial exploitation by professional guardians and their attorneys a commonplace occurrence? According to John Caravella, a former detective and office manager for Seniors vs. Crime, a special project of the Florida Attorney General's Office, Gainesville, Florida, the answer is "Yes."
Caravella became simultaneously intrigued and disturbed by the court-sanctioned practices of professional guardians on their "wards" (the legal term dubbed to those who have lost all of their civil rights under court-mandated guardianship) when one of his neighbors mysteriously disappeared shortly after receiving an inheritance of more than a quarter of a million dollars. The neighbor, referred to as "Adelle" in Caravella's book, Marked for Destruction, had been falsely induced by a stock broker, whom she had consulted about her fledgling inheritance money, to sign papers that authorized a professional guardian and her attorney to manage Adele's finances - if she should become mentally incapacitated. Within a few weeks, the guardian and her attorney petitioned the court alleging that Adele was not competent to manage her own affairs. The court authorized that she be stripped of all of her civil rights and placed in a nursing home. Soon thereafter, Adele's recently acquired $250,000+ was quickly consumed by the attorney and guardian for "professional services" fees. And Adele soon passed away.
Kevin Gallagher had a trusted, longstanding pact with his beloved parents: When the time was "right," he would make arrangements for their safe return to Maine where they would reside in assisted living. That "right time" came unexpectedly one day after Sunday services when Robert and Elsa Gallagher became slightly disoriented in traffic when they happenchanced upon orange cones in a road detour. Kevin and Lisa, delighted to hear that their parents were ready to journey home, began making all of the necessary arrangements. Kevin even phoned his estranged Orlando-based sister, Lori, and asked if she would simply "telephone" Mom and Dad during the interim. The sister, however, consulted the Yellow Pages and telephoned a company, Geriatric Care Management, that specializes in elder care.
Within 48 hours a professional guardian, and owner of the elder care company, arrived at the Gallagher's doorstep with a court order and two deputy sheriffs. She had hastily petitioned to become the couple's "emergency temporary guardian" after learning of their substantive assets. Upon her arrival, the couple were forcefully removed from their home and placed in separate nursing home facilities. Mrs. Gallagher, hysterical, secretly phoned her daughter-in-law, her speech slurred, crying for help. She had been forcibly administered psychotropic drugs. Three medical professionals quickly examined her while under the influence of the narcotics, and declared both she and her husband simultaneously 100% mentally incapacitated. The temporary guardian was then quickly appointed the permanent, plenary guardian.
Instead of making arrangements for their safe return home, Kevin Gallagher suddenly found himself furiously searching for Florida attorneys. Meanwhile, the guardian's legal counsel quickly filed papers to block Kevin's attempts at removing his parents from Florida to Maine. A hotly contested guardianship soon commenced with attorneys from both sides legally authorized to generously pay themselves from the Gallaghers' assets.
"The story is always the same," states Newman, a guardianship reform advocate. "A family member fights the guardianship; then the family member later 'wins' the contest - when all the assets have been spent in attorneys' fees."
"They then placed my parents on a airplane with a single suitcase with a broken zipper," Kevin stated. "Inside the suitcase were tattered clothes that had the names of other people in Magic Marker inside the clothes. Everything they had owned - even their clothes - had been sold or trashed by the guardian."
Corrine Branson, 82, had been happily living in Miami Beach with the daily assistance of a CNA when her grandson secretly petitioned the court to become his grandmother's guardian. When Branson learned that she was to be moved into a nursing home, she quickly phoned her beloved daughter, aunt to the grandson, who had been granted a springing power of attorney many years before. Bonnie Reiter, with little knowledge of guardianships or guardianship law, quickly hired an attorney who suggested that a "professional guardian" be appointed during the interim legal contest.
"They took more than $800,000 of my mother's money in attorneys' fees. The guardianship, in which my mother had never even been declared mentally incapacitated, lasted less than three months. This is a racketeering scheme that needs to be investigated. The F.B.I. should step in."
Law enforcement agents, social workers, and judges have been trained to maintain a watchful eye over exploitative family members. Yet no one seems to be guarding the guardians. Family members have complained to local law enforcement, the state attorneys' office, and even the F.B.I.without any significant action being taken.
Dr. Angela V. Woodhull, a licensed private investigator, spent more than two and a half years investigating court records in Seminole and Orange Counties, Florida, and interviewing family members and victims in order to compose this story. All court records that verify the contents of this article were submitted as attachments to the editor of the F.B.I. journal as verification of accuracy. Dr. Woodhull can be reached at (352) 327-3665 or (352) 682-9033, or write her at PO Box 14423, Gainesville, Florida 32604-2423, or email her at email@example.com.
Elder Abuse Victims Advocates - For national guardianship reform.
General Accounting Office (GAO) report on Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors