by Debbie (Milich) Mysiewicz
“There is no crueler tyranny than that which is exercised under cover of law and with the colors of justice.”—
U.S. v. Janotti, 673 F. 2d, 578, 614 (3rd Circuit, 1982)
U.S. v. Janotti, 673 F. 2d, 578, 614 (3rd Circuit, 1982)
Preface: Much of the material in Part One and the following extended Part Two, including the names of participants, is drawn from the public portions of Clallam Co. Superior Court case no. 11-4-00249-7, filed September 9th, 2011, Guardianship of Dorothy Milich (aka Milich-Wilson, Wilson.) All docket entries cited are for that case unless otherwise stated.
Anyone who has ever read Alexander Solzhenitsyn’s Gulag Archipelago will undoubtedly see many similarities to Washington court guardianships and so-called “agreed” guardianships when it comes to (alleged or real) incapacitated seniors and their families. Prisoners were given little sheets of toilet paper and pencils to write their grievances on, which never amounted to anything and probably were not read. Years after sentencing prisoners got the court rules showing them all the “rights” they had, but which were not asserted because they did not know about them at the time they were convicted. It was too late when they learned about them…
I myself am a low-income senior. My tragic story along these lines involves a senile and demented Washington adult—my mother—who, despite 18 months of my complaints and predictions of this, was crippled while unattended in a hostile (to me and her own well-being) accepted/“agreed” guardianship. She died less than two years after being crippled.
Being a non lawyer and unable to afford legal help, I, her only child and living blood relative, was deliberately and quickly excluded from protecting her through the auspices of the WA Courts and an orchestrated gaggle of judges, lawyers, guardians, social workers, psychologists and avaricious individuals. Then, her entire estate, and family heirlooms of any monetary value, originally intended by my grandmother for me, was given to non-family members claiming to be her friends.
I should note here that the guardian claims my mother would not have been crippled had she pursued physical therapy after her injury . I beg to differ from this callous assessment—octogenarians do not have a high rate of success with physical therapy. In my mother’s case, she was in extreme pain and, in all likelihood, would not have had her ability to walk unassisted restored by physical therapy.
A curious side effect: a woman with virtually no memory beyond a week , who may not have known her own birthday or how may children she had (one), and who was unaware of the extent of her assets , was allowed (in secret—I was not informed by the court nor was I served in the District Court name change action) to change her name (and possibly file a marriage certificate 6 years after her live-in partner’s death .) She then was allowed to write a new will disinheriting her entire family months before her near-fatal, crippling injury. (Prior to this unrelated injury, the Clallam Co. Superior Court had even given the guardian immunity for allowing my mother, who could not safely drive, to drive a dangerous lawn tractor.)
In one of my mother’s last lucid moments, two weeks before imposition of the guardianship, she warned me “Don’t come up here, Debbie. They’ll eat you alive.” It was more than a year until I got to speak with her again.
Tragic stories like mine are the norm, and not just in Washington. In fact, the U.S. General Accounting Office (GAO) will soon publish its 2016 update of the massive 2010 report on nationwide guardian abuse. My story is different. Beyond showing the guardianship was faulty by the real-world outcome, I can show how it got created and why, as a poor person, I was quickly disposed of and, hence, was unable to stop what I maintain was essentially the drugging and slow kill of my mother. This despite seemingly well-designed WA legislation designed to prevent such abuses.
My experience shows how, once the hostile “agreed guardianship” was created, the court essentially wrote its own rules and was protected from any oversight as all the investigative bodies (such as DSHS APS and the CPG Board) are under the direct authority of the Washington Supreme Court, and so there is no real oversight unless requested by officers of the court (i.e., judges and lawyers.) If you or I provided more or less 13-hours/week of care to a seriously impaired senior, who had previously fallen on several occasions, and who refused to wear her Lifealert bracelet—and this elder was crippled, it’s likely we’d be under criminal investigation.
As baby boomers age, the allegations of elder abuse and exploitation and “estate harvesting” in cases like my mother’s are certain to soar unless prompt action is taken by Washington’s voters and the Legislature to curb the almost unlimited power of the courts over vulnerable seniors and their families facing guardianship or in guardianships. Every citizen is at a risk from a system that allows a form of “patty cake” to be played by the various members of the “system” none of whom seems to have accountability.
I like to find something positive in experiences like this. I think I’ve experienced enough to recommend substantive modifications to Washington law that will protect vulnerable adults from guardianship injury and exploitation while, a the same time, giving low-income next-of-kin the information needed to make informed decisions before a guardianship is established or set in stone.
And the ability to stop or alter a guardianship they feel poses a threat to their loved one. (For instance, in the “agreed/approved” order in my case, it appeared the court was prioritizing the financial interests of my mother’s “care team” vs. the health and safety needs of my mother.) I must stress that while guardian horror stories abound, it is the system that must change first because the guardians do what they do at the behest of it. If we can’t immediately throw out the current guardianship system—and it is going to become an overwhelming problem as so-called “boomers” age and there are insufficient qualified guardians—I’ve come up with suggestions for the Legislature and Governor for a temporary fix:
• Next of kin given priority as guardian or in selecting a guardian
unless specific findings are made by the court of abuse or misconduct
with regard to the alleged ICP. Such guardians, with limited financial
resources, shall be allowed to collect a reasonable salary and expenses
from the estate equivalent to what the courts now call “professional
nonprofessional guardians.” Under these standards I would be considered
one if I had three clients but, if I had filed to be guardian for my
mother full time, I would not have been compensated because I was her
• Failure to make legal service on next-of-kin or failure to provide any of the reports specified by RCW 11.88.090(5)(f)(ix) shall be grounds for immediate termination of a guardianship upon petition by next-of-kin or relatives. No fees shall accrue for such a petition to overturn the guardianship made in good faith. I was not legally served in this case nor was I provided aforementioned reports. I contend this damaged my “standing” and simplifed the imposition of an “agreed guardianship” excluding me, my mother’s only living blood relative;
• The Judge shall in every case make actual contact with the ICP—if possible in a courtroom setting. In this case, none of the judges even met my mother or spoke with her for that matter. My mother had a memory of “a week and a day” and may not have remembered her correct birthday (the party for her disclosed by guardian was at the wrong time of month and an erroneous death certificate was issued for her showing her birthday as Oct. 10th rather than Oct. 1st) or how many children she had, yet judges allowed her to change her name and write a will disinheriting me and the grandkids. I live in a 1963 mobile home with a disabled husband. The estate taken may have been in the millions (some of it possibly obtained at my expense through fraud in my late father’s estate) but I’ll never know because the real financial records were kept sealed;
• Guardian ad litems (GALs) are supposed to write a report assessing the ICP’s (incapacitated person’s) situation for the court. This is the basis for any court or approved “agreed guardianship.” These reports are often flimsy and frequently not even written so a copy can’t be given to the next of kin. I maintain we need to change the situation so, at all times, GALs should be required to always make written and not verbal reports specified in RCW 11.88.090(5)(f)(ix) that shall always be provided by law. In my case, the GAL only provided a report to me after a protest to the State Bar—4 months after the court approval of the guardianship—when it was too late to do any good. The report had many serious errors that ensured approval of the “agreed” order by the court that, I contend, contributed to crippling my mother. The GAL even failed to determine that the Certified Professional Guardian (CPG) they were appointing was only a trainee enjoined by the WA Courts from representing herself as a CPG—her appointment was allowed to stand and she was permitted to use letters of guardianship in commerce stating she was a CPG! (Financial institutions scrutinize CPG transactions less closely than lay guardians’ transactions.) The GAL also underestimated the size of my mother’s estate by $600,000—allowing the option of only “modest,” but inadequate care;
• Low-income next-of-kin contesting an agreed guardianship filed by other parties shall be provided an attorney at public expense. My case was a slaughter—threats of sanctions and every dirty legal trick was used while the judges looked the other way except once, when a judge told an attorney to “stop shouting at me.”;
• A low-income ombudsman for guardianships shall be created with the power to investigate GALs and guardians and make binding recommendations to the local courts and the AOC;
• The DSHS APS shall be mandated by the legislature to investigate all claims of elder neglect and abuse—including claims of neglect in court and approved guardianships—without bias and be given the power to make binding recommendations for change in care/guardian if a guardianship is involved. In my case, all my repeated warnings about the care of and risks to my mother were ignored—including assertions that my mother had been threatened if she spoke to me. My mother was put on a heavy drug regimen after this and was crippled a little over two (2) months after my final letter to DSHS about inadequate care and coercion;
• Guardians must be required to carry E&O (errors and omissions) insurance requisite to the size of the estate they are managing. In my mother’s case, the guardian carried $50,000 worth of insurance on a $900,000 stated estate!;
• Filing of unsubstantiated derogatory affidavits by ICPs suffering from dementia shall not be admissible in guardianship proceedings unless substantial evidential proof of their veracity is provided. Several alleged affidavits of my mother, either unsworn or notarized under a name that was not her legal name, were proffered to the court to not allow regular periods of contact with my mother. She had much-vaunted “free will” to avoid me, they claimed, yet when she wanted to not have lunch with her “care team” to whom she allegedly left all her assets, she was told she “had to see them” because they were her care team.;
• Attorneys representing the ICP or the guardianship must retain professional insurance. In my case, according to the WSBA website, both the court-appointed lawyer for my mother (who foolishly believed she had fired him in Dec. 2012—he remained court appointed) and the guardianship lawyer (suggested by the first lawyer) did NOT have professional insurance. Lawyers without insurance often utilize trusts and other devices to make themselves “judgment proof, which also effectively deters suits for misfeasance or malfeasance;” and,
• Next-of-kin to be automatically included as a party, with legal standing, to any agreed/approved or court guardianship except for exceptional proven wrongdoing. This would stop what happened to me in that I would have been given standing—which I should have had under common law—in what was essentially a court-approved private commercial agreement. (One ethical law firm in Port Angeles apparently refused to file the petition because I was specifically being left out.)
Full Article & Source:
Part One: THE THREE DEATHS OF DOROTHY E. MILICH