It is shockingly easy to declare a person incompetent and take their money.
by Diane Dimond
Ginger Franklin, a fortysomething single woman in Hendersonville, Tennessee, fell down the stairs of her condo and lapsed into a coma. When she awoke she discovered a court had declared her “an incapacitated ward of the court” and assigned a stranger, a professional guardian, to take over her life.
The guardian quickly sold Ginger’s condo and car and placed her in a group home where she was put to work servicing other residents. Even after Ginger had fully recovered, the judge overseeing her case refused to end the guardianship for several more years.
In Staten Island, New York, a medical mishap at the birth of Michael Liguori caused him to develop cerebral palsy. His parents won a $1.9 million malpractice settlement against the hospital and, as the law required, the infant was assigned a guardian to safeguard the money until Michael turned 18.
As a stellar high school student, Michael wanted to go to college but his guardian refused to pay for it on the false grounds that he was profoundly disabled. A judge agreed to keep the guardianship in place allowing his court appointee to continue charging monthly fees until Michael was 24 years old.
Angela Woodhull and her mother, Louise, visited an attorney for advice on what to do to protect the elderly woman’s substantial estate from a conniving relative. Before they knew it, that lawyer surreptitiously filed a Petition for Guardianship of Louise in a Gainesville, Florida court. The judge quickly approved it—without seeing Louise or her daughter.
The appointed guardian took control of Louise’s money and quickly relegated her to a nursing home. Louise died there just three months later with several strong opioids in her system. What happened to Louise’s million-dollar-plus estate remains a mystery. Angela inherited nothing and she insists her mother was murdered.
For those who thought guardianship (called conservatorship in some states) only affected the elderly with memory issues—or the occasional off-the-rails celebrity like Britney Spears who endured nearly 14 years under court control—think again.
Perhaps Martin Scorsese’s latest epic, Killers of the Flower Moon, left the public with the idea that emotionally abusive and financially devastating guardianships were a thing of the past—unforgivably forced on the entire Osage Indian tribe in the 1920s as a way for the greedy white man to take control of the tribe’s massive oil wealth.
Sadly, Scorsese failed to explain why, just five minutes into the film, an Osage woman named Molly Kyle (wondrously portrayed by actress Lily Gladstone) sits before a self-important white man, declares herself to be “incompetent,” utters the phrase “282 allotment” and asks for release of some of her money to pay medical bills. Scorsese could have added a bit of dialogue explaining what prompted the government’s unconscionable guardianship move, but he didn’t.
It was a missed opportunity to highlight how the system, ostensibly created to “protect” the nation’s most vulnerable citizens, has always been a playground for predators. Today it has morphed into a predatory program that routinely allows bad actors to prey on an ever-increasing victim pool. Judges could stop them, but they don’t.
Britney and the Osage may be free now, but there are an estimated 2 million Americans currently living under guardianship or conservatorship.
They are almost always immediately declared incapacitated, stripped of their civil rights, all their assets are seized and put into the name of whoever is appointed guardian. Astonishingly, state courts seize a collective $50 billion of ward’s assets every year.
The newly minted “protected person” no longer has the right to hire their own attorney to fight for them. They cannot vote, sign a contract, marry, decide what doctors they will see, or where they will live. They are not allowed to drive, spend their own money, use a credit card or have a passport. If their family member complains about a court appointee’s actions, they can be banned from visiting the ward—permanently. (Isolation and overmedication of a ward are red flag warnings of a predatory court appointee.)
With billions up for grabs in this secretive, ill-regulated, and largely unsupervised system is it any wonder that the criminally minded would gravitate to work within?
Today, unscrupulous players target all sorts of victims, including: those who have won sizeable workers’ compensation or malpractice settlements; young people who have earned or inherited considerable money; military veterans or disabled Americans receiving generous monthly government checks; citizens of means who suffer from mental health issues or the aftermath of a stroke, traumatic brain injury, or other temporary health problems.
Once they recover, just like Ginger Franklin did, they often find themselves trapped. It is next to impossible to escape from guardianship.
It is remarkably easy for one person to guardianize another, they just have to find a willing lawyer to draw up an official Petition for Guardianship and present it to the court.
The petitioner could be a worried relative, an angry ex-business partner, a neighbor, or a former lover. Petitions have been initiated by financial institutions (as in the case of talk show host Wendy Williams) and hospitals looking to move out a patient whose insurance is about to lapse. Landlords have guardianized rent controlled tenants. Real estate agents have successfully guardianized landowners in a bid to get valuable property. The common denominator in these cases? The potential ward has attractive assets.
There is no shortage of lawyers willing to create these fee generating petitions. My years-long investigation into the system reveals many petitions are frequently full of exaggerations (“He always forgets to take his medicines and pay his bills …”) or downright lies (“Her daughter stole $100,000,000 from her mother’s accounts…”), and overworked or uncaring judges routinely accept the petition’s contents as gospel.
Courts that hear guardianship or conservatorship cases don’t operate under standard rules. They are “equity courts” where there is no guarantee of due process, no trials, and no meaningful opportunity for the targeted person to launch a defense. In fact, judges often never lay eyes on the potential ward before deciding to declare them incapacitated and turn their fate and future over to someone else. Courtroom doors are usually closed to the public, case files are sealed, gag orders are not unusual, and unscrupulous players explain the secrecy as necessary under federal HIPAA medical privacy laws.
Many court ordered guardianships proceed just fine, especially if a trusted family member is appointed as the guardian. And many professional guardians and conservators operate with compassion and integrity.
As a society we obviously need a system to help at-risk citizens who truly have no one to assist them. But we don’t need a system in which judges routinely ignore family members seeking guardian status and instead tap for-profit professionals who can charge the ward up to $600 an hour. And we don’t need a system whereby court appointees can engage in dizzying spasms of spending and then ask the court for permission to ignore a ward’s pre-planned will, irrevocable trusts, or other estate plans so they can refresh the coffers from which they draw.
You think this can’t happen in America? It happens all the time, in states across the country. There is a nationwide cabal of judges, lawyers, guardians, conservators and others who have created a lucrative industry out of the suffering of others.
It makes one wonder why Congress hasn’t passed federal reform laws. Or why the Department of Justice hasn’t stepped in to investigate, much like it has probed civil rights allegations against police departments.
My conclusion? Powerful lobbying groups have convinced the powers that be that the status quo is working well.
It decidedly is not. You or someone you love could be next.