Opinion: It’s time to reform probate court

By Ben Bartlett

Predatory for-profit conservators often take advantage of the elderly by charging huge fees and isolating them from the community.

In 2013, a former Berkeley resident, Greg Cooke, was diagnosed with Alzheimer’s disease. A physician deemed Mr. Cooke’s wife unable to care for him, and he was referred to a nursing home. A private conservator became aware of Mr. Cooke’s situation and began to petition for conservatorship. Mr. Cooke’s wife fought to retain her role as his caregiver, but ultimately, the Alameda County Probate Court assigned Mr. Cooke to the private conservator.  The conservator began billing Mr. Cooke $8,000 a month in the form of excessive fees and charges. The conservator refused to communicate with Mr. Cooke’s family regarding his condition. They refused his family visitation rights and recently sent a letter to Mr. Cooke’s wife stating that he was deceased. Yet, in spite of the letter, the conservator has continued to bill Mr. Cooke’s estate.

Our probate court system is failing seniors and people with disabilities such as Mr. Cooke. Predatory for-profit conservators are taking advantage of vulnerable community members through a system of conservatorship that is rife with elder abuse and civil-rights violations. This process is a part of a larger trend robbing families of color of their property and wealth. This year marks the 50th anniversary of the Fair Housing Act and it is time to address this problem.

A conservatorship in California is a probate court proceeding where a judge appoints a caretaker for an adult unable to care for him or herself.

Once a conservatorship is established, the caretaker (legally termed a ‘conservator’) has nearly total control over the person put under his or her care (a ‘conservatee’).

Conservators become responsible for every aspect of a conservatee’s life, including all property, possessions, finances, and even medical and personal decisions. For example, conservators choose the individual’s doctors, dictate whether or not relatives visit, and can even sell a conservatee’s house, and spend their money.

Conservatorship was designed to help families protect relatives unable to care for themselves. Mostly, it is used for seniors who cannot manage their own lives. Conservatorship is also used to assist adults who are disabled or the victims of catastrophic illness or accident.

Despite this noble intent, the system can fail the very people it was designed to protect. Professional conservators can petition for conservatorship of an individual, even without the knowledge and consent of the individual or their family. Judges often grant approvals for conservatorships with little scrutiny in hasty hearings.

Predatory conservators profit by billing the estates of the conservatees, charging exorbitant fees for miniscule, unnecessary, or fabricated tasks. These practices quickly deplete the wealth of the seniors and disabled persons who are supposed to be under their care. As a result, families are denied their inheritance and in the most tragic cases, seniors lose retirement savings and become homeless or financially dependent on relatives. In addition to financial predation, conservatees are often victims of abuse. There have been reports of these vulnerable individuals being confined and isolated, sexually violated, or physically abused.

Over the past decade, state legislators have passed various laws aimed at targeting this issue, most notably the Omnibus Conservatorship and Guardianship Reform Act of 2006. Since this reform, courts have been tasked with increased procedures for monitoring conservatorships. Regulations have also been imposed on professional conservators. Experts agree that California has decent probate laws on the books.

Yet, there continue to be reports of elder abuse and civil rights violations within the court system. Why? Because we have failed to allocate additional funding to enforce these critical laws that protect our most vulnerable citizens. Unless courts and court investigators receive sufficient funding, these laws will be nothing more than empty and meaningless statements of governmental principle.

There is a growing movement for probate court reform. The Berkeley City Council recently passed a council item requesting that District Attorney Nancy O’Malley and the Judicial Council investigate this matter. I call upon the Berkeley community to join and help advocate for our seniors. Please contact your state legislators, district attorney, and the Judicial Council to investigate abuses within our probate court system, enact positive changes and protect our families from this theft. Simply put, our elders deserve better.

Full Article & Source:
Opinion: It’s time to reform probate court

Journal seeks to open guardian mismanagement lawsuit

Annette Rosenstiel lived to be 101 years old.

But what happened to her and her assets during the nine years before her death in 2012 is mired in court-ordered secrecy that is opposed by her only child.

Annette Rosenstiel, an author who was married to New York financial heavyweight Raymond S. Rosenstiel, had been the ward of a for-profit guardian/conservator, Decades LLC of Albuquerque, since about 2003.

After her death, Annette’s daughter and personal representative, Leonie Rosenstiel, filed a lawsuit against the company and its founder, Nancy Oriola, alleging negligence and mismanagement of her mother’s assets. But her court complaint, the defendants’ response and more than 20 other documents filed by the parties in the civil negligence case are under seal on the order of a state district judge in Albuquerque.

Leonie Rosenstiel has tried to open up her own case, and on Wednesday the Albuquerque Journal filed a motion seeking to unseal the records, arguing that information about “alleged misbehavior of guardians or conservators should be made public because it is plainly a matter of public concern.”

“Affording blanket protection to information related to Defendants’ alleged mismanagement of a conservatorship or guardianship, when mismanagement by court-appointed guardians or conservators is a critical matter of public concern, offends the notion of the First Amendment right of access to the courts,” the newspaper argued in its motion.

A handful of records that aren’t sealed offer a glimpse into the allegations, which in essence contend that Decades mismanaged the Rosenstiel assets and abused its position as court-appointed guardian and conservator.

One document alleges breach of fiduciary duty, negligent handling of assets, negligence in the administration of the guardianship and conservatorship by a commercial entity and violation of the New Mexico Unfair Practices Act. An accounting is also requested.

Leonie Rosenstiel has tried to have the files in her own lawsuit opened.

Based on what is known, the Journal argues in its motion, that the only interest being protected is the defendants’ interest in avoiding disclosure of Rosenstiel’s allegations against them.

None of the attorneys in Rosenstiel’s civil lawsuit responded to Journal requests for comment on Wednesday, but the lawyer for Decades said his client would oppose the Journal’s efforts to unseal the case.

State law makes virtually all information in a guardianship/conservatorship case confidential, except for the court docket sheet, the kind of guardianship and the name of the allegedly incapacitated person for whom a guardian was appointed.

But this isn’t the guardianship case of Annette Rosenstiel; rather, it is a claim of negligence against the guardian/conservator that was filed after the ward had died. District Judge Alan Malott, siding with Decades and against Rosentiel, ruled earlier that the case would remain sealed because it was related to a guardianship matter.

Full control

A court-appointed guardian is responsible for the day-to-day life decisions of a ward, while a conservator manages the financial affairs of a ward. In some cases, the guardian and conservator are one and the same.

Most guardians appointed in New Mexico are family members of the incapacitated person, but in some cases, judges decide a nonrelative should be appointed.

Decades, which has operated since 2001, is among the for-profit corporate companies in the state providing such services.

Leonie Rosenstiel originally initiated the guardian/conservator proceeding in 2003, according to court records, but, because of the secrecy, it isn’t known whether she sought to be her mother’s guardian or why the court appointed Decades LLC.

Records in the negligence case indicate there was a court-ordered forensic audit into some of Decades’ actions as Annette Rosenstiel’s guardian and conservator, although the results are secret.

The lawsuit was initially filed under seal. Rosenstiel subsequently asked for the court records to be unsealed, while the defendants contended they should be automatically kept from the public because they related to guardianship/conservatorship matters. Her lawyer also asked to be able to use portions of the guardianship case in the civil lawsuit.

“The former ward has passed away, and accordingly will suffer no embarrassment if the Sealed Records are unsealed,” Rosenstiel’s attorney, David A. Garcia, argued in a motion filed in 2013.

“Courts seal their records to protect the ward, not to protect the interests of private corporate guardians and conservators.

“Parties to litigation in civil cases would often prefer that as many particulars of the litigation as possible be hidden from the public,” he wrote. “But that isn’t the way court records are handled in the vast majority of cases like the one at bar.”

Decades, in arguing to keep the case sealed, said Annette Rosenstiel’s privacy interests didn’t end simply because she died.

The Journal’s motion to unseal the records in the negligence case, filed by attorney Matt Hoyt, said Malott appeared to interpret state law as automatically requiring that almost all information and documentation related to a guardianship and or/conservatorship proceeding be kept confidential – even though the civil negligence case is not itself such a proceeding.

“There was also no “separate consideration of reasons why the records in this (civil negligence) lawsuit should be sealed,” the Journal said.

The Journal also argued in its motion that the judge has a duty to seal only portions of the records rather than entire documents.

Malott, in his earlier denial of Garcia’s request to unseal the documents, said it would be “overly burdensome and expensive for the parties, and markedly inefficient for the Court, to determine confidentiality of each separate document or item of information as this matter is developed for trial.”

So the judge ordered the sealing of “any pleadings” related to the guardianship/conservatorship proceeding. Actual trial testimony and exhibits would be publicly available if and when the case goes to trial. A trial date is set for later this year.

Full Article & Source:
Journal seeks to open guardian mismanagement lawsuit