WLRN investigation featured in national conversation about guardianship reform

By WLRN NEWS STAFF

WLRN Investigation: Unguarded

When elderly people or those with disabilities or mental illnesses are placed under guardianship, their rights are removed. A legal guardian is appointed to make life decisions for them, including decisions about their personal finances. Without greater transparency and scrutiny on these legal arrangements, vulnerable people can become victims of fraud and abuse.

U.S. senators, attorneys, advocates and people who have been placed under guardianships, as well as their families, are calling for more transparency and scrutiny nationwide. They also recommend the embrace of less restrictive options than guardianships such as supportive decision making, in which people who are considered “incapacitated” or incapable of making decisions independently can do so with the guidance of people they trust.

“Unguarded,” a project from the WLRN News investigations team, along with a recent series from Bloomberg Law, in part prompted the U.S. Senate Special Committee on Aging to hold a March 30 hearing on guardianship programs, with an eye toward reforms.

Journalists from both news organizations shared their insights Tuesday morning during an hour-long episode of the national radio show 1A, produced by WAMU in Washington, D.C., as well as NPR.

WLRN’s Danny Rivero, who co-reported the project with reporter Joshua Ceballos, appeared on the program. Rivero advised people who might be considering placing a family member under guardianship to think ahead about how the arrangement might affect any real estate holdings the person might have.

If an elderly father comes under guardianship, for example, “all the decision making is removed from father, but also daughter, son, uncle, wife, everyone,” Rivero said on the show. “It's really incumbent on everyone, especially if you're proactively looking to put someone in guardianship, to get your affairs in order before you do so.”

During the show, listeners heard an excerpt from part two of WLRN’s investigation, in which Emma Ladson describes her astonishment when she learned that the Guardianship Program of Dade County sold her then-incapacitated mother’s Liberty City home for $31,000 in 2015.

The sale was to Gallego Homes, one of two real estate companies WLRN has identified as frequent buyers from the Guardianship Program. The other company was Express Homes. Both companies have family ties to City of Miami’s top attorney Victoria Méndez.

When the Guardianship Program took control of the Ladson home, Emma, who was living there with her mother, was evicted.

“Because she did not have her name on that deed, the court could just quickly move to get her out of there, even though the family had owned that home outright for years,” Rivero said. “That was the family home. … Four generations had been through that home. And then, from one day to the next, she was put out on the street. She ended up in a homeless shelter.”

One of the obstacles to reforming guardianship programs nationwide is a lack of transparency about how they operate. According to Bloomberg Law’s reporting, there are an estimated 1.5 million active adult guardianships in the U.S.

In Florida, guardianships have not been tracked statewide — until now. A new law passed last year requires a statewide registry and is slated to be available early next year.

On 1A, Rivero said the lack of a registry has alarmed the advocacy group AARP for years.

“Part of the complaint that they've had for a long time is they just don't know. They don't know how many cases are open in Florida,” Rivero said. “You'd have to go into the guts of local government, to go to each clerk's office. And then each one has its own system. It's just incredibly cluttered and hard to track.

“So, I mean, there is hope that the database will be step one toward enabling people to put more scrutiny on this,” Rivero said.

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WLRN investigation featured in national conversation about guardianship reform

We Need to Have a Frank National Conversation About Guardianship Abuse

Source: AP Photo/Jean-Francois Badias

by Dr. Nan Hayworth

We like to think that judges are impartial arbiters of justice and that medical professionals--as a physician myself, I know this should always be true--only have the best interests of their patients at heart. Unfortunately, as a growing number of elderly Americans and their families are discovering, that isn’t always the case.

Conservatorship abuse has been a largely silent problem for decades, but the recent documentary about Britney Spears’s problems has given it a higher profile. Unlike Ms. Spears, who has legions of fans eager to speak in her behalf, most victims of conservatorship abuse can only rely on the advocacy of friends and family. Even if victims have ample financial resources, that’s frequently not enough to overcome the combined authority of the government and medical “experts” and lawyers hired by conservators.

Previously vibrant, capable individuals can be reduced to shells of their former selves under the strain of court-imposed guardianship, dying without the ability to manage their own estates or even to see their loved ones in their final days. Rachel Aviv, writing in the New Yorker in 2017, described harrowing and infuriating instances of courts in Nevada facilitating the machinations of a burgeoning guardianship industry draining the resources of vulnerable seniors--while, hideously, evading and thwarting the efforts of their loved ones to rescue them.

Significant wealth is no bulwark against conservatorship abuse; indeed, it may serve as a temptation. A disturbing recent case in Alabama illustrates this vividly.

In January of this year Joann Bashinsky, the widow of the founder of Golden Flake Foods and so beloved in Alabama that she was known as “Mama B,” died of a heart attack in the midst of an all-consuming battle to regain and retain control of her assets after two employees who had worked with her and her husband for decades weaponized the courts against her.

The employees were a lawyer and a finance manager who refused to comply for over a year with Mrs. Bashinsky’s requests regarding the management of her funds and unilaterally adding themselves into her will, after which she terminated them. Contacting her investment firm directly after the termination, Mrs. Bashinsky learned that the employees had informed the firm--without having warned her of a contention she would have challenged immediately--that she suffered from dementia.

On the day they were dismissed, the lawyer and finance manager successfully introduced an emergency petition to have a court-appointed guardian take charge of Mrs. Bashinsky’s affairs. They produced documentation from a doctor, who had had one limited encounter with “Mama B,”  alleging that she suffered from dementia. 

Mrs. Bashinsky, who’d had no prior notice of the petition, had to find new legal representation--the court forbade her the counsel of the attorneys who were familiar to her-- and obtain documentation from her own doctor, as well as from psychiatric professionals expert in gerontology who interviewed her, that she was mentally competent.

After many months of proceedings, Mrs. Bashinsky won her appeal to the Alabama Supreme Court to overturn the emergency guardianship order. 

Unfortunately, the lower courts continued to pursue efforts to appoint a permanent guardian, necessitating that “Mama B,” whose generosity to charity and to her beloved home state of Alabama was legendary, spend what turned out to be her final months fighting for her legal rights instead of savoring the blessings of a life well led.

There’s simply no moral, ethical, or medical justification for treating people this way. 

It’s all too regrettably easy to surmise that greed played a role in the harm inflicted on Mrs. Bashinsky. Her estate is worth hundreds of millions of dollars, and the employees who initiated the guardianship and alleged wrongly that she had dementia were among its beneficiaries. 

Once the effort to have a court appoint a guardian succeeds, these guardians may be able to exercise complete control over their wards’ finances, typically collecting substantial fees in the process, and in many cases survivors are forced to fight protracted legal battles just to retain what remains of their loved ones’ estates.

Conservatorship law varies from state to state, but, clearly, we need to have a frank, national discussion about conservatorship abuse. The heartless exploitation of elderly Americans cannot be something that is tolerated or overlooked--especially not in a country that purports to respect the rights of individuals and to guarantee equality under the law.

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We Need to Have a Frank National Conversation About Guardianship Abuse