A stranger knocks on the door. The older woman who answers the door is informed that the visitor is now her legal guardian and will make all decisions for her. Within days, the older woman has been placed in a nursing home and her home sold so that the stranger may profit.
It’s a perfect opening for a psychological thriller. In fact, it is the opening for Netflix’s new featured movie “I Care a Lot,” starring Rosamund Pike as Marla, a ruthlessly ambitious woman who has made a business out of exploiting older adults. Her method: petitioning a local court to appoint her as emergency guardian for older adults whom she alleges cannot make decisions for themselves.
Unfortunately, the plot of “I Care a Lot” — despite its share of plot twists and theatrics — is not as far-fetched as it might seem. Every state allows courts to appoint a third party (called a “guardian” or “conservator”) to make decisions for someone the court determines is at risk because they lack the ability to make decisions for themselves. The process can provide needed protection to those who are unable to care for themselves. Yet it also has real costs. Not only do individuals for whom guardians are appointed lose the right to make some or nearly all decisions for themselves, but reports of unscrupulous guardians using the system to exploit vulnerable adults are far too common.
This exploitation is made possible, in part, by outdated state laws. Take Marla’s first “trick:” petitioning for a guardianship without telling her elderly mark. State guardianship laws permit courts to appoint “emergency guardians” without notice to either the person alleged to need a guardian or family or friends who might come to their defense. Even when state laws say that individuals are entitled to notice before a guardian is appointed, courts can (and do) waive giving that notice. And long-term guardians are also routinely appointed without the subject of the proceeding being present in court.
Marla’s next trick is also generally legal: immediately placing her victim in a nursing home and selling her house. In most states, such moves are considered routine matters and guardians do not need separate court approval for such life-changing decisions — even though investigations (including high-profile ones in Florida and Nevada) have documented abuse similar to that perpetrated by Marla.
Finally, take Marla’s not-so-secret weapon: getting the court that is supposed to oversee her to ignore clear evidence of her wrongdoing. Failure of courts to adequately monitor guardians is a long-standing and chronic problem in guardianship systems — leaving those under guardianship at risk.
Fortunately, states can reform their laws to prevent the abuses depicted in “I Care a Lot”. In fact, the Uniform Law Commission has already created model legislation — the “Uniform Guardianship Conservatorship and Other Protective Arrangements Act” — to help states do just that. As the chair and reporter (principal drafter) for the committee that drafted this model legislation, we are confident that its adoption could substantially curb abusive guardianship practices.
The act bars courts (absent extraordinarily limited circumstances) from imposing guardianships over a person who was not present at the court proceeding. If the person cannot come to court, the court must go to the person — even if that means holding court in the individual’s hospital room. The act also limits the ability of guardians to make major decisions — such as selling a person’s home, placing them in a nursing home or blocking visitors — without explicit court permission. In addition, it contains a variety of provisions that would substantially enhance court monitoring of guardians. And it gives family and friends new ways to keep tabs on guardians and bring problems to the attention of the court and others who could help.
In 2018, the U.S. Senate Special Committee on Aging issued a report urging every state to adopt the model act. Only two — Washington and Maine — have so far. Instead, state legislatures typically ignore the issue or pursue piecemeal reforms. Guardianship just hasn’t been a “hot issue” politically — and those who seek to reform guardianship law have faced opposition from cash-strapped courts and attorneys who have grown (perhaps too) comfortable with the status quo.
I Care a Lot may just be the push state legislatures need to adopt the reforms needed so that stories like those depicted in it are relegated to the realm of fiction.
Nina A. Kohn is the David M. Levy professor of law at Syracuse University and the Solomon Center Distinguished Scholar in Elder Law at Yale Law School. She served as reporter for the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act and has testified on guardianship abuse before the U.S. Senate Special Committee on Aging. Find her on twitter @ninakohn.
David M. English is the
W.F. Fratcher professor of law at the University of Missouri and the
former chair of the American Bar Association’s Commission on Law and
Aging. He served as chair of the drafting committee for the Uniform
Guardianship, Conservatorship, and Other Protective Arrangements Act.
4 comments:
Dear Nina, dear David,
thank you for your article. It gives some good insight into how to judge what we see in the movie. I was wondering how realistic the network of corruption is that Marla has surrounded herself with: Doctors that fabricate medical recommendations for petitions of guardianship, care home owners being complicit. I've seen "research by Hunter College" quoted in many articles around 2017 (e.g. https://www.newyorker.com/magazine/2017/10/09/how-the-elderly-lose-their-rights) that seems to have looked at corruption in the lead-up to actual guardianship petitions, but I cannot unfortunately find the paper itself. Perhaps you have some further insight you can share?
My 83 year old mother was targeted for abusive guardianship by her doctor. My mother's doctor knew she had appointed me as her sole represenative and if I could not fulfill the duties, my mother appointed her older grandson Matthew. My mother had been telling me the people in her house were abusing her and having her sign papers. My mother knew she was being targeted for financial exploitation and I knew her concerns were valid. This is very important for me to mention a registered nurse tried to get her hands on my mother's will 5 years before they killed her. I saw a bruise on my mother's upper left arm and I knew she was in danger. I called the Toronto Police many times to help my mother. The police refused to help my mother and she was killed in her house 2 months later. A toxicology report confirms Morphine, Acetaminophen, Codeine, Hydrocodone and Hydromorphone in the body of my 83 year old mother weighing only 81 pounds when she died. She got an grade 3 infected sacral bedsore under the care of doctors and nurses. They took her life, house, money and even stole my parent's wedding rings.
These abusers refused to let me see my mother and also isolated my mother from the other family members.
My mother's legal documents were changed on November 1, 2016 to bring in a predator into her home. My mother died on February 1.2017.This predator was able to steal over 1 million dollars of my mother's money and continued to victimize my late mother and I with more fraud. My mother's Dr. Paolo Mazzotta did this crime to my mother. When I spoke to him at the end of September 2016 about my mother telling me "They are stealing my house!" My mother was right. I am a wittness 4 days later Dr. Mazzotta started drugging her with Hydromorphone and 4 days later he gave her Hydrocodone. These narcotics are contradicted for seniors. These narcotics cause confusion and dizziness. Why would a doctor be so careless? After drugging my mother for 3 weeks he ordered her to change her legal documents to bring in a criminal predator with a history of stealing to victimize my elderly mother. It was at this time this doctor documents he would be contacting the public guardian.
At the funeral home I saw a massive bruise wrapped around my mother's right wrist. This bruise was made because they tied my 83 year old mother to her bed and drugged her to death.
She was restrained to prevent her from getting help and to prevent her from fighting off the force fed narcotics.
I am also a witness 3 of my mother's lawyers destroyed 3 wills and 3 powers of attorney for care & finances destroyed to destroy my elderly mother.
My mother had prepaid for her funeral 7 years before she died and there was no money owed. But the fact is Cardinal Funeral Home lied to me and attempted to extort $12,000.00 from me lying to me saying my mother had not prepaid. The court documents show 3 funeral directors Aaron Battle, Mike Stangi and the owner James Cardinal spent 4 days conspiring with Mark Ross lawyers to defraud my late mother and I. This scam costed me close to $30,000.00 and $20,000.00 that I paid my 2 lawyers who were part of the legal scam. My late mother's money ends up at 222 Queen St. West right up the street by Mark Ross Law Office at 123 John St.
Probate court crime is real!
I watched the judgement being hand delivered to the syster judge Laurence Pattillo before the hearing. The probate court took seizure of my mother's property because the predator Belinda worked with lawyers and the judges to defraud the estate of my late mother Carmelinda Bajouco.
5 years have gone by and my late mother's meager estate has not been settled.
Dear Nina and David: Thank you for taking the time to write this. I'm Canadian and am at a loss at the prevalence of what I am learning/reading about. High profile cases in the entertainment world and low-profile, Joe Blow, people ... this is modern day SLAVERY and wrong on so many fronts in the 20th and 21st centuries.
And Canada is no better. What happened to Florips is not isolated. Elder abuse has been trivialized on both sides of our borders.
Please keep the momentum going to expose guardianships as modern day slavery.
Post a Comment