Guardianship: It’s an Emergency and I Care a Lot…About Your Assets

by Stephanie Henrick

I recently watched the 2020 Netflix film “I Care a Lot”, the story of a professional court-appointed guardian (played by actress Rosamund Pike) who bilks the assets of dozens of elderly wards. As a Pennsylvania estate planning attorney, I regularly represent family members, alleged incapacitated individuals (AIPs), and guardians. And nothing makes my blood boil more than discovering someone has taken advantage of an elderly or disabled individual via guardianship.

Pike’s character, Marla Grayson along with the help of a crooked doctor, has elderly individuals declared incapacitated, that is, unable to take care of themselves. Grayson is appointed as legal guardian and subsequently drains her wards’ assets for her own personal gain. Unfortunately, the exploitation of the vulnerable occurs more than we care to admit.

Does Guardianship Fraud Happen a Lot?

Well, it doesn’t quite happen according to the film. Director/writer J Blakeson took liberties with the legal requirements, but this isn’t a courtroom drama. Plus, Blakeson needed to make room for the sub-plot of the retired Russian Mafioso (played by my favorite Game of Thrones actor, Peter Dinklage). I’ll leave it at that before I give away any spoilers.

So then how is one appointed a legal guardian In Pennsylvania?

A petition must be filed for adjudication of incapacity and for the appointment of a guardian. Under Pennsylvania law, the petitioner “may be any person interested in the alleged incapacitated person’s (“AIP”) welfare”. This is a fairly broad definition and may include family, neighbors, area agency on aging, healthcare provider or other professional with a relationship to the AIP.

Here, Grayson’s relationship to Dianne Wiest’s AIP character, Jennifer Peterson, is unclear. Marla doesn’t appear to be representing anyone (agency or otherwise) interested in Jennifer’s welfare. As an aside, I would challenge standing, but where is the entertainment value in that?

In a real life situation, the petitioner must prove by clear and convincing evidence to a Judge that the AIP is incapacitated to become a guardian. There need to be specific findings of cognitive incapacity that has impaired the person’s ability to understand information, to make reasoned decisions, to effectively manage their financial resources or assure their own physical health and safety.

In the movie, Grayson submits a report by the crooked doctor (Dr. Amos, played by Alicia Witt) to prove incapacity. While this is permissible under Pennsylvania law, the “clear and convincing” part is skipped over in the film. The judge states the court would “let it slide” because it was an emergency hearing without questioning why the matter was an emergency. In PA, an emergency hearing is proper where it is apparent that the AIP is at imminent risk of irreparable harm, including severe financial exploitation, medical risk or risk of homelessness.

In Pennsylvania, Grayson would also be required to show that there is no less restrictive alternative to the guardianship. For instance, does the AIP have a Power of Attorney? If not, is she able to execute a Power of Attorney? Does she have support in the community?

Certainly, Ms. Peterson would argue she has the support of the Russian mafia to handle her affairs, and she appears quite capable of executing a Power of Attorney. In reality, a guardianships is a last resort because it deprives a person of his/her legal rights and restricts their rights to autonomy and self-determination.

In Pennsylvania, there are two types of guardians:

• a guardian of the person is responsible for making personal, residential and medical decisions for the AIP.
• a guardian of the estate is responsible for financial decisions, managing income and property.

So how does a person get deemed incapacitated and appointed a guardian against his or her wishes, without even being present in court? Fiction aside, in an emergency hearing, the 20-day notice period is typically waived, but required for the plenary hearing. The AIP has a right to counsel and if they can’t afford one, counsel will be appointed by the court. In an emergency hearing, there usually isn’t time to appoint counsel until the plenary hearing. The AIP is also required to attend the hearing unless there is a sworn statement by a physician that the AIP’s physical or mental health would be harmed by attending.

In this movie, all of this plays perfectly to Pike’s game. While we don’t get to the plenary hearing in the movie, one can assume that Pike’s character would manipulate a loophole in the law, and have the crooked doctor friend testify that the AIP would be mentally harmed, legally excusing her from participating at the hearing.

One would hope that this Judge would follow suit with Montgomery County Pennsylvania’s Orphans’ Court, and appoint a well-vetted experienced Orphans’ Court attorney to represent the AIP. That is the only way to ensure that their voice will be heard by the Judge.

How can you avoid guardianship scams like the ones in “I Care A Lot”?

Have a current complete well-drafted estate plan, with financial and healthcare Powers of Attorney. Choose your agent under Power of Attorney wisely. Make sure it is someone you trust implicitly and then name a backup agent, just in case. While I can’t promise that you won’t end up in a guardianship proceeding if you have a POA (your agent could go rogue, fail to act, or die and there is no backup named), the chances are extremely low if you have the proper documents in place.

You can find “I Care a Lot” on Netflix now.

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Guardianship: It’s an Emergency and I Care a Lot…About Your Assets

Netflix's 'I Care a Lot' should worry you

By Nina A. Kohn and David M. English

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.

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Netflix's 'I Care a Lot' should worry you

Netflix’s I Care a Lot: Is Marla Grayson’s Elder Abuse Grift a Real Thing?

Warning: Spoilers follow for Netflix’s I Care a Lot.

Netflix’s latest thriller movie, I Care a Lot starring Rosamund Pike and Peter Dinklage, debuted on Friday, and if you’re wondering whether the grift of becoming a court-appointed guardian for elderly people in order to steal their money and assets is a thing in real life, you’ve come to the right place.

In the movie, written and directed by J Blakeson, Pike’s character, Marla Grayson, has made a profession out of said racket, acquiring dozens of elderly people as her wards by using their doctor to diagnose them with dementia and declare them unfit to live on their own — she then brings the case to a judge, who appoints her their legal guardian.

Grayson and her business partner/lover Fran (Eiza Gonzales) coordinate this con together, fooling the court into believing that neither the elderly people nor their living relatives are capable of making the best decisions for their well-being. As soon as the elderly people are in Grayson’s care, she shows up at their doors and escorts them — by court order, of course — to an assisted-living facility where their cell phones are immediately seized and they are denied any visitors who might help them escape. Then, Grayson sells off their assets — their home, valuables, you name it — to pay herself.

(L-R) Eiza Gonzales, Dianne Wiest and Rosamund Pike in Netflix’s I Care a Lot

It’s all so evil that by the time Dinklage’s Roman Lunyov character comes along, you just might find yourself rooting for him and his bad-guy-hipster-mobster buddy Alexi (Nicholas Logan) to stop her from preying on his mother (Dianne Wiest) by any means necessary.

So do people like Marla Grayson exist in real life? In short, yes — but it’s complicated.

Professional guardians do exist and can be appointed by the court to care for and make personal decisions for an elderly person who a judge has determined is unable to care for themselves. Although the legal process of appointing these guardians is quite a bit more complicated than what we see in I Care a Lot, cases of elder abuse by legal guardians can occur.

According to FindLaw.com, each state has a legal process in which the elderly people themselves — or their spouses, families, friends, or a government agency — can petition for a guardian to be appointed in order to ensure the elderly people are properly cared for. Before a judge makes any decisions, a petition for guardianship must be filed, of which the elderly person and their family must be informed. Then the court does an investigation to determine whether the guardianship is necessary, followed by a court hearing in which the judge reviews the petition, listens to statements, and decides whether the elderly people are truly incapable of caring for themselves before deciding whether or not to grant the petition.

Peter Dinklage and Rosamund Pike in I Care a Lot, courtesy of Netflix

In the state of California, the guardian bears a duty of care to the elderly person, meaning the guardian has to act on behalf of the person’s best interest.

Also read: Night Stalker Richard Ramirez and the Cecil Hotel: Here’s Everything You Need to Know

But despite laws in place to protect the elderly from abuse, one 2011 Houston Chronicle story argued that guardianships in Texas were putting the elderly at risk. An 86-year-old woman named Helen Hale had a story similar to that of Jennifer Peterson (Wiest) in that she was removed from her home under a court-ordered guardianship and placed in an unlicensed group home “run by a caregiver with a criminal history,” according to the Chronicle.

Unlike Wiest’s character in the movie, Hale wasn’t a “cherry” — a word Marla Grayson uses in the movie to refer to a rich, elderly person with no family — in fact, her monthly income as the widow of a longtime Pacific Railroad employee only covered a fraction of the fee owed to her guardian.

But after a visit to Hale’s nursing home, her daughter said that her mother wasn’t receiving proper care. Doctors found that she had a urinary tract infection and dangerously low potassium levels.

In short, I Care a Lot presents a much more dramatic, glammed-up version of a real problem with non-familial, court-appointed guardianships. As the Chronicle notes, probate judges in some Texas counties are sometimes tasked with overseeing thousands of guardianships with only a single investigator to check up on them.

In fact, the problem is so real that there are organizations dedicated to stopping it. The National Association to Stop Guardian Abuse, for example, is an organization whose mission is to “protect the civil/human rights” of elderly adults “described as ‘incompetent’ and made wards of the state in unlawful and abusive guardianships and conservatorships,” “to end financial exploitation of their wards’ assets by court-appointed fiduciaries,” and to support families “battling court-appointed ‘protectors'” who turn a blind eye to physical and mental elder abuse.

According to MyElder, an independent advocacy group for elderly people and their families, the state of New York allows court-appointed guardians to actually prevent family members from visiting their elderly loved ones, just like what happens in I Care a Lot. 

So although there isn’t necessarily a real-life equivalent to Marla Grayson running around escorting elderly people into nursing homes and selling their valuables faster than anyone can bat an eyelash, the movie isn’t too far off from the reality of court-appointed guardians who exploit their elderly wards and neglect to provide them with proper care.

I Care a Lot is now streaming on Netflix.

Main Image: Rosamund Pike as Marla Grayson in I Care a Lot, courtesy of Netflix.

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Netflix’s I Care a Lot: Is Marla Grayson’s Elder Abuse Grift a Real Thing?