"The Perfect Crime"
By Pam Zubeck
A California man spent $50,000 in legal fees freeing his stepmother from
the clutches of a so-called guardian in Las Cruces, New Mexico, who
charged $140,000 for services over a year’s time.
Prosecutors in Pinellas County, Florida, on Nov. 15 charged Traci
S. Hudson, guardian and then-president of the Pinellas County
Guardianship Association, with felony exploitation of an elderly person.
She’s accused of stealing $541,541, via charges of $1,600 per day, from
a 92-year-old man she persuaded to assign his power of attorney to her.
Within 10 months, she allegedly stashed nearly all of his money in her
own accounts. The case prompted a judge to order a review of 31 other
cases in which she acted as guardian.
Last year, April Parks grabbed headlines when she was sentenced to six
to 16 years in prison in Nevada for stealing from the elderly — the
very people she, as legal guardian, was supposed to protect.
“She didn’t see them as people,” said Clark County public guardian Karen Kelly in a Las Vegas Review-Journal article. “They were paychecks.”
Think that couldn’t happen in Colorado? Actually it happens here with
some regularity, according to people who have observed guardianship.
But the extent of such exploitation of vulnerable seniors is hard to
gauge, because it takes place behind a veil of secrecy in a court
process closed to the public in which only those with a direct stake in
the outcome have a voice. Sometimes guardians appointed by the court
trump the wishes of family members and dear friends, all while cranking
out billings to the elders’ estates.
One such case involves a 90-year-old Colorado Springs man who played
tennis every day and enjoyed dinner parties regularly with friends until
the court intervened and, as his friends tell the Indy, doomed him to an isolated life in a nursing facility from which his friends are barred.
In another, a 79-year-old woman simply disappeared from her home and
later called a friend seeking help from an assisted living facility
where she’d been admitted by a guardian. She later was moved by the
guardian to a facility in another state.
Such cases are apt to become more common as baby boomers hit
retirement like a tsunami, forming a pool ripe for exploitation by
unscrupulous lawyers, guardians and conservators, abetted by a secretive
court system that protects the exploiters, reformers say.
But rarely do the bad actors face criminal charges, due in part to
court procedures that seem to sanction illicit actions and become a
confusing morass to those unfamiliar with the system.
Further complicating the process, probate court procedures vary from
state to state, and laws in many states, including Colorado, wall off
guardianship records from everyone except those directly involved.
Anyone can file a petition for
guardianship in Colorado, but many cases come to the courts through
Adult Protective Services, a division of the Department of Human
Services.
El Paso County’s APS responds to roughly 3,500 reports of elder abuse
and exploitation per year. In 2018, APS filed 76 petitions for
guardianship, which deals with oversight of an incapacitated person, and
29 petitions for conservatorship, which oversees that person’s property
and assets.
Some reports come into a hotline staffed by law enforcement.
APS agents, who aren’t required to be certified by any agency but do
complete nominal training, investigate to determine if the at-risk adult
is being mistreated or self-neglected or is at risk for either.
Sometimes APS does little or nothing, Chris Garvin, county DHS deputy executive director, says.
“If I got to the home and the person says, ‘I don’t want you in my
house,’ and the caseworker saw the house was in bad shape or multiple
reports came from multiple people, they would investigate to see if the
person is protected. If the person says, ‘I’m totally fine,’ [and] the
caseworker doesn’t see anything red-flaggish, then they’ll leave a card,
a senior guide and leave.”
But cases that are investigated can lead the County Attorney’s Office
to petition the court for guardianship or conservatorship — or both.
“Through our investigative process,” says Andrew Bunn, director of the
county DHS’ adult and family services, which includes APS, “if there
are concerns about capacity, they’ll do a pre-screening to see if [the
person] can track and answer questions, to see if they can manage
decision-making on their own. If there’s a question about that, they’re
connected with a neuro-evaluator to determine if they have capacity to
make decisions on their own behalf.”
From there, based on evidence presented to a judge by APS and a
medical provider, including a mental capacity evaluation, the person can
be placed into a guardianship.
Garvin says 85 to 90 percent of guardians are family members. In the
remaining cases, the court appoints a guardian who’s paid by the
person’s estate, or the state if necessary, and makes decisions on
behalf of the incapacitated person in every aspect of their lives. That
includes where they live, the type of medical treatment they receive,
and even who can visit them. A conservator also can be appointed to make
decisions regarding assets, including liquidating property, investments
and life insurance policies and sale of personal items. Theoretically,
that money is then used to care for the incapacitated person, but all
parties to such actions are paid from those proceeds, including
attorneys hired by those parties.
At a court hearing, the court rules based on “convincing evidence”
that the individual is unable to evaluate information and make decisions
about their health, safety or self-care, according to the statute.
“DHS does not make decisions of whether someone needs a guardian,”
says DHS spokesperson Kristina Iodice. Rather, a judge does so.
Guardianships and conservatorships can last for years, in which case
guardians and conservators are required by law to file annual reports of
spending, which are to be monitored by the court. It’s unclear how much
scrutiny such reports actually receive, however. APS does not monitor
the ongoing conservatorship after a permanent order is entered.
The El Paso County caseload has grown since laws were passed in 2014
and 2016 requiring anyone who observes self-neglect and exploitation to
report those observations to authorities.
Iodice notes the increase also is tied to a rise in the aging
population and efforts by APS to educate the public about signs of elder
abuse.
Most of the county’s $1.8 million APS budget, the second largest in
the state behind Denver’s, is spent on salaries and benefits for the
county’s 11 APS employees, office rent and support services at the
county’s Citizens Service Center; only about 5 percent goes toward
direct aid, such as food, roof repairs, a new appliance and the like.
While statutes require guardians and conservators to account for their
actions and spending, Garvin acknowledges it’s not a perfect system.
“Overall, guardians in my experience do the best they can to protect
their ward [probate parlance for incapacitated individual],” he says,
but notes, “Exploitation of seniors is a crime that goes unnoticed.”
Moreover, anyone who isn’t directly involved in a case is hard-pressed
to find a way to intervene on behalf of an incapacitated person.
Assistant County Attorney Lisa Kirkman says a “concerned person could
petition the probate court, which has authority to remove a guardian or
conservator,” but those actions might not yield results, considering the
judge appointed those actors in the first place. Also, a lay person who
lacks experience in court matters might not be taken seriously, and
hiring attorneys comes with a hefty price tag.
“I do think it’s incumbent on the court to closely monitor, and that’s why the [annual] reports are filed,” Kirkman says.
A 2010 Government Account- ability
Office review found hundreds of cases of guardian and conservator abuse
between 1990 and 2010.
“Compared to the general population, adults over the age of 65 are
more likely to live alone than those of younger ages,” the GAO reports.
“Given these statistics, it is important to ensure that systems designed
to protect seniors from abuse and neglect function properly.”
But often those systems don’t operate as expected, and while the GAO
found misappropriation of funds from protected persons was the most
common offense, it also found that physical abuse took place.
Among the GAO’s findings:
• A taxi driver in Kansas City, Missouri, housed an 87-year-old man
with Alzheimer’s disease in a “filthy” basement wearing only a dirty
shirt and diaper. The guardian embezzled more than $640,000, purchasing a
Hummer and writing checks to exotic dancers. The guardian was sentenced
to eight years in prison and ordered to pay $640,000 in restitution.
• A management agency in Alaska stole at least $454,000 over four
years from 78 victims, with the executive director using funds belonging
to the “wards” to pay his personal credit card bills, mortgage payments
and camp fees for his kids. Victims received partial restitution, but
no criminal charges were filed.
• Public guardians appointed to care for an 88-year-old California
woman with dementia allegedly sold the woman’s properties below market
value to buyers that included both a relative of the guardian and a city
employee. One of the public guardians also moved the incapacitated
person into various nursing homes without notifying family members, who
had to call the police to help them find their relative. The woman
developed bedsores during this time that became so serious her leg had
to be amputated at the hip.
These abuses stem, in part, from states’ failure to properly screen
guardians, and courts’ inadequate oversight of guardians they appoint,
the GAO concluded.
To show just how lax states can be, GAO employees used two fictitious
identities — one with bad credit and one with the Social Security number
of a dead person — in four states, Illinois, Nevada, New York and North
Carolina. All four granted the bogus applicants’ certification.
“The tests raise questions about the effectiveness of these four state certification programs,” the GAO reports.
In Colorado, anyone can become a guardian by asserting they’re
qualified to act as one. Like many states, Colorado requires guardians
to report in writing within 60 days of appointment the condition of the
incapacitated person, the guardian’s personal care plan for that person
and an accounting of money and assets in the guardian’s control.
Thereafter, a guardian is to report annually.
But also like other states, Colorado lacks resources to thoroughly
monitor such reports regularly, and there’s no evidence that judges and
magistrates assigned to preside over probate courts have the depth of
knowledge about forensic financial matters to detect fraud.
Officials with the Colorado Office of the State Court Administrator tell the Indy
via email the state has no requirements or standards to certify
guardians and has no certified professional guardianship board to
oversee guardians. That office also notes each judicial district in
Colorado has funding for a half-time position for reviewing initial and
annual guardian and conservator reports, which number in the hundreds if
not thousands.
As for the opportunity for outsiders to monitor guardian activities,
Colorado law bars disclosure of probate records to anyone who isn’t
directly involved in a case.
Under a directive issued by the Supreme Court of Colorado, probate
records are closed, including those dealing with conservatorship and
guardianship, financial statements and medical and mental health
documents, among others.
In fact, even law enforcement and prosecutors are considered
“member[s] of the public who would not have access to a case,” the state
court officials say, though the records could be accessed via subpoena,
search warrant or a request to the court.
Asked whether a prosecutor has ever successfully petitioned to gain
access to a probate file, the state officials said, “Although such cases
may exist, there are no compiled records and we do not have specific
coding in place to track such matters, therefore, we are unable to
answer your question.”
In late 2017, the then-88-year-old
Colorado Springs resident, whom we’ll call Joe, was a vital, active
senior citizen who enjoyed playing tennis and dined with friends
frequently. He lived with a caregiver friend, who had served as his
companion for seven or eight years, and another elderly citizen.
After a misunderstanding arose over a payment Joe routed to
landscapers through the caregiver, Adult Protective Services paid a
visit that started a process that changed his life forever. (Friends
suspect the financial transaction, in which the money was transferred by
the caregiver to the landscaping firm, was reported to APS by the
bank.)
Court records are inaccessible to outsiders, but the Indy
pieced together Joe’s tale through his friends, who say Joe shared
information freely before being forced into a nursing home. The Indy is
recapping Joe’s story without naming him or those involved due to a
judge’s order barring public dissemination of any information about him
or his case.
Joe was given less than 24 hours to show up in court for a hearing to
weigh the need for a guardian. Attending without an attorney, Joe was
placed in a temporary guardianship despite his objection.
Over the ensuing weeks, the court set aside the power of attorney Joe
had assigned to the caregiver friend, who family members suspected was
exploiting Joe, though his friends dispute that. The conservator took
control of his bank accounts, life insurance, Social Security checks,
property and other assets but failed to pay Joe’s bills at times,
including utilities and property taxes on his $622,000 home. (Some bills
eventually were paid.) The caregiver friend, whom Joe had previously
paid a full-time salary, was cut off despite possessing Joe’s power of
attorney, executed years before.
At one point, Joe had no money to eat and sought food at local food
banks. Also, Joe’s caregiver friend used his own credit cards to make
many payments but so far, months later, hasn’t been reimbursed by the
conservator.
The guardian required that Joe contact his four children, who live in
another state, by phone on a regular basis after years of being out of
touch with them and not wanting to speak with them, the friends say.
None of the children were appointed guardian or conservator.
Ultimately, the conservator liquidated Joe’s assets. Last spring he
was admitted to a nursing home in Colorado Springs. By accident, in
mid-summer, some of his friends stumbled onto him at the facility while
visiting another person, the elderly citizen who had lived with Joe and
who also was placed in a guardianship.
“We were so happy to spend time with him [Joe] but also in dismay at
his condition,” the friends wrote in an eight-page letter to media
urging coverage of Joe’s story. “[Joe] expressed that he was living a
happy and wonderful life and he is now in a probate-ordered prison.” He
referred to his room number as a cell number, they said.
The friends described Joe as having lost weight, being unshaven and
experiencing isolation. “He begged repeatedly for someone to help and
told us that he tried multiple times to escape,” the friends said in the
letter, adding the man stated he felt “completely dehumanized and
silenced.”
When the friends visited Joe again days later, Adult Protective
Services and his guardian threatened to call police, according to the
friends, who noted, “There is no court order against us and [we] find
this to be bullying and fear tactics.”
APS and court personnel are barred by law from discussing specific cases due to privacy concerns.
The friends were then blocked from visiting Joe, who was relocated to
another facility “to hide him from us,” the letter said.
The friends note it’s ironic the caregiver friend was accused of
exploiting the man, when all signs point to the guardian and conservator
doing the same through charges for lawyers and unnecessary services. He
was billed $800 for one phone call, they said.
“If this sounds ridiculous,” the friends’ letter says, “the friends
[of Joe] thought so as well. Until we witnessed it. This is organized
crime and legal racketeering. It seems harsh to label it as such, but
this is also ELDER and ESTATE TRAFFICKING and it is happening all over
the United States and is particularly bad in Colorado. This needs to be
exposed....”
(Similarly, Robert “Barney” Rummel, a retired Air Force chief master sergeant, tells the Indy the
story of Suncha Baldwin, who a guardian whisked away, “kidnapped” as he
calls it, from her Colorado Springs home and placed her first in
assisted living after her husband’s death, and later in a nursing
facility in North Carolina. That’s where the guardian’s husband, who was
in the Army, had been reassigned. Friends were prevented from visiting
her in both places, Rummel says.)
An attorney who represented Joe’s first permanent guardian, who
encountered pushback from the conservator, the judge and others involved
in Joe’s case while trying to look after his best interests, expressed
frustration and outrage in an early 2019 letter to those involved in the
case and gave notice the guardian would resign.
“[N]ot until becoming involved in this case have I ever been so
ashamed of how our legal system and participants in that system have so
completely failed a truly vulnerable citizen,” the attorney wrote. “The
Court has failed [him]. The legal system has failed [him]. And in my
personal view, the professionals in this case have failed [him]. It is
the greatest travesty I have witnessed/experienced in all my years of
practice.”
The attorney closed by saying he would ask the judge to relieve his
clients from the guardianship appointment to avoid participating in
“this ongoing collateral denigration and abuse....”
The Foundation for Senior Care, of Fallbrook, California, urged a U.S.
senator to intervene in Joe’s case after Joe, his long-time caregiver
friend and two other friends in California reached out to the nonprofit
seeking help in finding a good attorney.
In a letter to the senator, the foundation notes that APS sent a
report to a psychiatrist ahead of an exam to determine competency,
spelling out reasons a guardian and conservator should be appointed. The
foundation also alleged mismanagement of Joe’s resources, noting $5,000
in penalties resulting from failure to make credit card payments, and
that the so-called financial plan promoted by the conservator called for
Joe to sell his car and use taxis for all outings. The conservator also
stopped making payments to Joe’s tennis club — his “main joy in life.”
Meanwhile, the conservator and guardian charged the man’s estate $26,000 per month in fees, the foundation said.
Though the court records themselves are off-limits to the public, a
so-called register of actions that lists dates of filings and hearings
fills more than 50 pages; the case spans more than two years.
When a local television reporter attempted to investigate and report
on Joe’s case, the judge issued orders that bar anyone from discussing
the case, which effectively killed the story.
Authorities in some states have discovered guardians in charge of
cases who have previously filed for bankruptcy or are in financial
distress, which can color decisions about how much they pay themselves
from estates. Some guardians have even been found to have been convicted
of felonies.
The bottom line: Guardians and conservators often rack up huge bills
with no one asking questions, she says, noting a case in Tennessee where
a guardian’s attorneys charged an estate $110,000 a month.
If families try to dispute the charges, more filings are made and more
hearings are held, so all the attorneys gobble up more of the estate’s
assets, she says.
“Guardianship sounds like a warm and fuzzy word but there’s nothing
warm and fuzzy about it,” Renoire says. “It’s a process that’s rife with
exploitation by the very people appointed to protect you.”
She says efforts to isolate the incapacitated person serve as a
warning that something is amiss. “I hear all the time of the drugging of
elderly in nursing homes,” she says. “If you’re denied visitors, it’s
like living in a jail cell.”
Some Reformers say one step forward
would be for all states to adopt the Uniform Guardianship,
Conservatorship, and Other Protective Arrangements Act drafted in 2017
by the National Conference of Commissioners on Uniform State Laws. The
act is an advisory measure that calls for more annual reporting of
assets, more consistent data collection by the states and more attention
paid to appointment of limited guardianships that specify narrow areas
of responsibility rather than assigning total control over a person’s
life.
The U.S. Senate Special Committee on Aging issued a report in November
2018 declaring its goal is to “encourage states to develop the proper
tools to ensure that guardians and court officials have the resources
necessary to serve the best interests of those under guardianship, and
that guardians who instead use the system to exploit, abuse, or neglect
are quickly identified and are held accountable.”
Among the committee’s findings:
• A lack of guidelines and education for court officials, community
organizations and guardians results in guardianships being imposed
without full knowledge of the responsibilities needed to ensure the
individual at issue is properly protected and cared for. Few safeguards
exist for oversight of guardians.
• Guardianships may remove more rights than necessary, and an individual’s rights are rarely restored.
• Few states collect data on the number of guardianships imposed.
Better data would help policymakers make informed decisions on how to
improve the guardianship system.
The committee also issued recommendations that called for more intense
monitoring of guardianships and financial activities, requiring
criminal background checks on guardians, creating visitor programs in
which individuals help inform the court about what’s going on in a
guardianship, and require more training for guardians, court staff and
family members.
It also urged a national resource center be created to collect and
publish information, such as statistics on guardianships, laws and
regulations, published research and training materials.
In comments made in response to the committee’s work, the National
Guardianship Association’s president Carleton Coleman said the only
reliable estimate of guardianships comes from the National Center for
State Courts, which pegged the number at 1.5 million, though it could
range from 1 million to 3 million.
Coleman said the NGA, which has 1,100 members, supports raising the
bar on oversight of guardians and advocates for more “finely tuned”
guardianship orders.
Reformers also call for more auditing and law enforcement referrals
when suspicious billings arise. Federal and state investigative teams
should be formed, they say, and databases created so that consumers can
track complaints against guardians and conservators.
Officials of the American Bar Association’s Commission on Law and
Aging advocate for states to better report numbers and types of
guardianships in force. Most states don’t know how many guardianships
there are, let alone whether there was any abuse, a commission official
told the Indy on background.
The Colorado Office of the State Court Administrator says the state
does track the number of cases filed each year, and numbers of guardian
and conservator appointments. The office offered to provide that data,
at a charge of $30 per hour in search fees.
Reports available through the judicial administrator’s office show
probate caseloads are growing. While total case filings for all types of
litigation increased by 23.5 percent statewide from 2009 to 2018,
probate case filings soared by 43.3 percent. In the 4th Judicial
District, which includes El Paso and Teller counties, probate cases
increased by 32 percent during that time, rising from 1,340 in 2009 to
1,978 in 2018.
The ABA’s commission notes that up to 25 states have established
interdisciplinary networks of stakeholders, including APS, the legal
system, courts, guardians, conservators and the medical community that
meet to discuss how to address emerging problems. Some states have
adopted judicial education reforms, some are beefing up data collection
systems and some are hosting town hall meetings to better educate the
public about guardianships. Together, those measures could help, the
commission says.
But advocates remain skeptical, such
as Luanne Fleming of Denver, who runs Families Against Court
Embezzlement and Unethical Standards, a loose-knit organization that
gathers probate horror stories.
“As we always call it: Litigate, isolate, medicate, steal the estate and, sometimes, cremate,” Fleming tells the Indy
by phone. Her family watched as millions were drained from her parents’
estate when 17 attorneys worked their way into the case. “My family had
just been played,” she says.
She was finally able to rescue her mother from guardianship, she says, but the money was gone.
“This is one of the scariest things I know about,” Fleming says,
adding that slipping on the sidewalk and requiring a hospital visit can
lead a person to lose their freedom to a guardian. A woman in Michigan
called for help to install a ramp for her wheelchair and wound up in a
guardianship.
In one Colorado case, family members told Fleming they had to pay $750
an hour for a guardian to supervise their visits with their mom;
another family told her as their mother was dying, a guardian blocked
their visit, leaving her to die alone.
As for Joe, his friends have no idea where he’s being held. “We fear
[Joe] will die in an undignified way,” the friends’ letter says, “and
[he] deserves much more than this.”
Full Article & Source:
How courts and guardians exploit the elderly and their estates and get away with it
