American Probate

An eye-opening account of the prevalence of fraud and abuse inherent in American probate law.

New Hampshire judge and probate attorney John Fairbanks, a court-appointed executor and trustee, stole thousands of dollars from the estates of his trusting elderly clients. Successful Virginia lawyer David Murray misappropriated nearly four million dollars from estates entrusted to him in one of the largest financial swindles by a lawyer in U.S. history. Enterprising attorney James Gunderson drafted wills and living trusts for many residents of Leisure World in Orange County, California, who named him the sole trustee and major beneficiary.

These are just some of the cases examined by Paula A. Monopoli to illustrate the unsettling prevalence of fraud and abuse inherent in American probate law. Probate courts are intended to provide a vehicle for the orderly disposition of property after death, to balance the interests of creditors, the government, and heirs, and to protect the rights of the elderly and others with special needs. In this insightful work, Monopoli shows how an array of flaws in the system allows corrupt and unethical lawyers to take advantage of the nation's most vulnerable citizens. She delves into such subjects as the history and purpose of probate, procedural complexities, lack of regulatory oversight, inadequate judicial resources, and the growth of non-probate alternatives, concluding with a blueprint for reform that emphasizes deterrence, detection, and compensation for the victims.

This informative account casts new light on the intricacies and failures of a legal process that affects millions of Americans every year.

Source: Northeastern University Press

Paula A. Monopoli, Professor of Law at the Southwestern University School of Law and Visiting Professor of Law at the University of Maryland School of Law, practiced trusts and estates law for several years. She has published articles in numerous law reviews and journals. She lives in Bethesda, Maryland.

Free Silvia Klaiber

"My story begins when I removed my daughter from her day program at Community Gatepath in San Mateo. At the time, I was Conservator of the Person and San Mateo County was Conservator of the Estate. I had called the local regional center and was waiting for a call back when I began to get calls from Community Gatepath wanting to know why I had removed my daughter."

Two years ago, the Public Guardian and Silvia’s attorney entered the home without permission, without a warrant and without notification. These people then performed an illegal search of the home. After they induced Silvia into saying she wished to live in a group home (Silvia had never seen one) they petitioned the court to remove her mother as conservator of the person. The court decided that because her mother was paid IHSS funds for her care, this constituted a “conflict of interest”. Silvia has lots of other relatives but none of them were notified by the court or contacted in any way.

After two weeks at the group home, Silvia told her Guardian that she would like to return to her family. The change of conservatorship was only temporary at that point. Neither Silvia nor her mother received notification of the hearing date which made the order permanent. Silvia has constantly continued to verbalize the wish to return to her family during the two years. The home she once owned was sold for about $75,000 less than the market value. Her mother who co-owned the home and Silvia’s 12 year old sister were forced to move out of the home as a condition of the sale. However, her mother was still responsible for the payments during the 6 months that it took to sell the home. Silvia was removed from a community based program she attended and placed in a sheltered workshop where she had been verbally abused and which has a practice of administering performance reviews of it’s disabled clients in public.

While at the group home, Silvia was not bathed nor cared for properly and it was discovered that her roommate was sexually assaulted repeatedly in Silvia’s presence. Only as a result of her mother’s diligence was Silvia removed. Two weeks before Christmas, Silvia was again cruelly stripped away from her family. It was the eve of her grandmother’s death and her mother was served with a restraining order obtained by the Public Guardian using false information.

"I discovered that the PG had gotten the restraining order by alleging that I had taken Silvia from the group home without permission and refused to return her two months earlier and that I would not now tell them her location. The TRO also indicated a "past history of abuse". It wasn't abuse by me. They lied. They themselves approved her stay with me but it was the only way they could have obtained such an order."

There was a 3-day trial. Silvia was able to speak to the judge in chambers and told her she wanted to see her Mom and that she wanted to go home to live with her family. The judge decided that the actions leading up to the TRO constituted abuse because Silvia had to be taken in such a traumatizing way.

"County Counsel had indicated to my attorney that they would be coming after my 12 year old next. I saw the file from Family Court Services with my other daughter's name in big black print in the arms of Lani Blazer, a supervisor. I knew there was nothing incriminating in it, but I also knew that it didn't mean anything because they manufacture what they wish and innuendo becomes fact. So I was scared. I'm still scared."

Finally, the judge ruled that Sylvia's mother could speak to her by phone and could begin visiting her in the group home.

Conversations with Silvia indicate that they placed her back in Community Gatepath and she is occupied with work approx. 20% of the time. She cannot have a confidential phone call at the current group home due to only one phone. She describes being discouraged to call her advocate and the PG. Until recently, Silvia did not have the phone numbers for any family member or agency. She is not allowed to use the phone at work for personal calls. There might as well be barbed wire and gun towers. Silvia is scared to speak openly on the phone and has told her mother this.

See also: Send Sylvia Home

The Retirement Nightmare

The Nightmare:
A very real possibility that you or someone you love will be forced to surrender your decision-making powers over almost all personal and financial matters at some point during your senior years. Surrender to whom? Surrender to a friend, a relative or a total stranger who convinces one judge in an unwanted conservatorship or guardianship proceeding that you are no longer managing your affairs in a reasonable manner.

The Book:
Most people do not know that being old in America exposes them to ruinously expensive and patently unnecessary conservatorships and guardianships. In the hands of disgruntled or angry adult children, step-children, nieces and nephews or even by total strangers in the social welfare community, these secretive state laws can strip the elderly of their personal and financial independence for the rest of their lives.

The Laws:
Conservatorship and guardianship codes were developed to help the state safeguard the interests of "infants and lunatics." States now act in their role as "parens patriae," or "parent of the country," to protect those who cannot protect themselves. Over time, however, states have begun to interfere in the lives of people who are simply OLD and who are making decisions about personal and/or financial matters that are different from or less "reasonable" than decisions made by younger people (whatever "reasonable" might mean in a given court on a given day).

The Proceedings:
The system is completely weighted against the elderly. Once in court, you must prove you are not incompetent. You must prove you are capable of providing for your food, clothing and shelter. You must prove that you are capable of making every financial decision without the undue influence of another human being--surely a very artificial definition of autonomy! Yet there is no clear way to prove you are NOT incompetent, and there is a presumption of incompetence and incapacity based on age alone.

The Lawyers:
If the proposed ward cannot afford an attorney, he may or may not be assigned one, depending on the state. Stop to think how ironic this is: a person alleged to be incompetent is then expected to appear in court without a lawyer to defend his/her personal and/or financial freedoms.

How Can it Happen:
An example of this egregious fact drawn from the pages of The Los Angeles Times (November 1997). Glen Hawkins, 89, had bicycled two miles from his Orange County home in Leisure World, California, to confer with his investment counselor. Once there, he was told that the $380,000 in his account was no longer his to control. A professional conservator had been assigned to manage his financial and personal affairs. As Mr. Hawkins soon learned, he already owed almost $1,200 in conservator and attorney fees. How could this be? A social worker at Glen Hawkins' retirement community had filed a petition for an emergency conservatorship over Mr. Hawkins, claiming that he was too ill to attend the required hearing and too addled to understand the legal proceeding.

No One is Totally Safe:
Try to imagine a time when you are over 62 and living alone. Perhaps your spouse has died, you are alienated from your children, and you've moved far away from your relatives. You are aging well, but you finally reach a point when you really do need a little help managing your investments or driving to the stores and the bank. You have just become a sitting duck for anyone who wants to takeover the control of your money and of your affairs for the rest of your life.

Who Pays:
If a judge decides you are not making "reasonable decisions" concerning your life and your money and appoints someone else to control your retirement years, guess what? YOU get to pay for every single expense involved in the conservatorship or guardianship proceeding. YOU will pay for all attorneys' fees for BOTH sides. YOU pay for every expert witness who is called by either side, and YOU pay for all court costs.

Freedom Lost:
Simply put, you are reduced to the legal status of an unemancipated child. You are no longer considered to be an independent adult.

Protect Yourself:
These so-called "protective proceedings" should never be used to control any adult of any age whose decision-making capacity is intact.

Full Article and Source:
Ten Questions - The Retirement Nightmare
See also: The Retirement Nightmare

Dr. Diane G. Armstrong is a clinical psychologist who lives in Santa Barbara with her husband Bruce. They have been married since 1966. Mother of two adult daughters, she works as a writer and consultant specializing in the abuse of involuntary conservatorship and guardianship proceedings in today's courts.

Her breakthrough book was inspired by the million-dollar court battle that ensued when four of her six siblings attempted to establish an involuntary conservatorship over their competent 72-year-old mother. The book exposes a web of state laws that were originally created to protect "infants and lunatics" and are now being used to strip elderly men and women of financial and personal independence during their golden years of retirement.

Railroaded into Guardianship

Ten Reasons People Get Railroaded into Guardianship
by MARGARET K. DORE

1. A Misconception of Guardianship
The first factor that contributes to unnecessary guardianships is a misconception of guardianship itself. The word “guardian” creates a warm and fuzzy image. Guardianship is, however, a severe loss of liberty.

2. Trolling for Clients
Some professional guardians petition the court to have themselves appointed guardian of persons with whom they have no prior relationship. If appointed, the professional guardian becomes entitled to an income stream, i.e. , fees from the person’s assets. This practice has been termed “trolling for clients.”

3. Ageism
Ageism is “prejudice or discrimination on the basis of age.” In the context of guardianship, ageism can influence whether a guardianship is imposed.

4. Court Visitors Recommend the Lawyers
Court visitors also contribute to the imposition of unnecessary guardianships because in many states, the visitor recommends whether the proposed ward should be given a lawyer. The proposed ward does not have an automatic right to counsel. This situation creates a conflict of interest.

5. The Visitor’s Fee Creates Another Conflict of Interest
If the guardian ad litem recommends counsel for the proposed ward, or if the guardian ad litem recommends against the guardianship, the petitioner may object to the guardian ad litem’s fee. The “smart” guardian ad litem, who wants to get paid, is thus under pressure to go along with the petition, not “make waves.” The guardian ad litem is, regardless, more likely to be paid if the guardianship is imposed. This is because with the appointment of a guardian, there is an official person (the guardian) who will be ordered to pay the guardian ad litem’s fee from the ward’s assets.

6. Vague, “Politically Correct” Statutes
In many states, persons subject to guardianship were formerly deemed “incompetent.” To eliminate the stigma, many states passed statutes employing the word “incapacitated” instead. This terminology is also contained in the Uniform Guardianship and Protective Proceedings Act (1998). This change in terminology has caused an implicit lowering of the burden of proof. A judge or jury might think twice about deeming someone “incompetent” to handle his affairs. But deeming someone “incapacitated” or as having “incapacities” is not that big a deal.

7. Sudden Change and Potential Heirs
Another factor that contributes to unnecessary guardianships is sudden change, especially change that threatens potential heirs. More common examples include changing one’s will, selling family property, seeing a younger woman and/or marrying her. Any such action by an older person can result in a petition for guardianship.

8. Court Visitors Are Not Always Neutral
As custody attorneys know, guardians ad litem and evaluators are not always neutral; they instead follow their own value systems or other private criteria. With this situation, custody attorneys often advocate for the appointment of a guardian ad litem/parenting evaluator whose views are compatible with their cases. They may also move for the appointment of a guardian ad litem or parenting evaluator with whom they have an established relationship. The person appointed can be prealigned to one side.

9. Court Visitors Effectively Lower the Burden of Proof
Case law provides that the constitutionally required burden of proof for a guardianship is “clear and convincing evidence.” In many cases, this burden is easily met. The proposed ward is demented. There is no alternative to guardianship such as a power of attorney because the proposed ward is incompetent to execute such a document. In other cases, however, the burden would not be easily met i.e., if the petitioner would actually be required to show clear and convincing evidence. The petitioner, however, is often not required to meet this burden because as a practical matter, he only needs to convince the court visitor.

10. Incentives to Sell Out the Client (No “Dream Team” for the AIP)
Like the guardian ad litem, the “smart” lawyer who wants to be paid will not do anything that causes the petitioner to be unhappy, such as vigorously fighting the petition. The “smart” lawyer will also avoid disagreeing with the court, as the court has direct authority to appoint him, approve fees and order payment. The bottom line, there is pressure on the lawyer to sell out his client. For this reason also, a person may be placed under guardianship when it is not appropriate.

PROPOSALS FOR REFORM

Politically Correct Statutes
Eliminate Court Visitors/Mandatory Appointment of Counsel
Remove the Conflicts of Interest
Public Awareness

CONCLUSION

The law provides that guardianship not be imposed unless there is clear and convincing proof. In practice, this proof is often not required due to the factors identified above: vague, politically correct statutes; the role of court visitors; and in many states, the lack of mandatory counsel for the proposed ward. More broadly, there are numerous conflicts of interest that allow competent individuals to find themselves forced into guardianship. The next time, it could be you.

Full Article and Source: Margaret Dore - AJFL 2008 (pdf)

Ms. Dore's successful cases include In re Guardianship of Stamm, 121 Wn. App. 830, 91 P.3d 126 (2004), which limits the admissibility of guardian ad litem testimony. She also prevailed in the nationally recognized case, Lawrence v. Lawrence, 105 Wn. App. 683, 20 P.3d 972 (2001). For commentary on Lawrence, see Wendy N. Davis, Family Values in Flux, ABA Journal, Vol. 87, p. 26, October 2001.

See also: Law Offices of Margaret K. Dore

Shameful Connecticut Probate

Rose Quattro is an 88-year-old widow in a wheelchair who just wants to live quietly at her East Hartford home.

Quattro's life landed under court control last summer after she was hospitalized for an infection and ended up in a nursing home. A dispute arose between her son and the nursing home that she was set to be released from. The nursing home - part of the infamous, bankrupt Haven Healthcare chain - went to the probate court, which named a conservator for her and appointed a lawyer to look out for her.

While the lawyers and the nursing home bickered, Quattro remained against her will at the Haven Health Center of East Hartford, running up a $51,646.63 tab when she could have been home. She was finally released in November, but still remains under a conservatorship, stripped of her rights and without access to Social Security and a small pension. Her son pays for a full-time aide to assist him with Rose Quattro's care.

The law is clear when it comes to probate court taking away a person's rights: "If the court of probate having jurisdiction finds a ward to be capable of caring for himself or herself, the court shall, upon hearing and after notice, order that the conservatorship of the person be terminated."

Marilyn Denny, Rose Quattro's Legal Aid lawyer, said "the question is, is [James] taking care of his mother? There is not a shred of evidence that he has ever not taken good care of her."

"Her estate is being dissipated. The nursing home still hasn't been paid," Denny said. "They have made her life and her son's life a living hell."
Source: Shameful Abuse of Probate


James Quattro, a self-employed mechanical contractor, said his mother was sent to the Haven home in March to recover from an infection that had landed her in Manchester Hospital. He expected she would be back at home within a few weeks. But he said the nursing home was reluctant to discharge his mother, setting a list of conditions that included ensuring she had around-the-clock care - something he said the home itself was not providing. Haven maintained that James Quattro was uncooperative in arranging a discharge plan.

With the case tied up in court, Rose Quattro remained in the nursing home until she was finally allowed to return home. Records show Haven had been billing his mother about $350 a day since June, when her Medicare benefits ran out and the legal battle began, and is now seeking more than $50,000.

'Every hearing they had, I asked, 'Why hasn't she been sent home yet? Why are they doing this to her?'' Quattro said of his mother, who was a longtime secretary in East Hartford's town hall. 'It's like they've got the vacuum turned on, and they want to suck up everything we have. It's unbelievable to me.'

It was also reported that the company's efforts to collect unpaid bills, or to pursue conservatorship in some cases, were standard practice in the industry.
Source: Haven Debt Woes

See also:

How Can This Happen?
Connecticut Conservatorship