By Apryl Marie Fogel
Financial exploitation is at the heart of several cases related to
guardianship and conservatorship here in Alabama. Several weeks ago in
the first of this series, Alabama Today released exclusive audio
recordings of Joann Bashinsky (Also
known as Mrs. B or Mama B), the window of Goldenflakes company founder.
These recordings revealed her court-ordered conservator
Greg Hawley allowing
Amy Adams
of Balch & Bingham to use what Mrs. B described as “scare tactics”
to pressure her to fire her current legal team and hire her. Adams is
heard repeatedly stating that Mrs. B could lose her house and staff
while her house is paid for and she has an estimated $200+ million in
assets.
Mrs. B, her personal physician, her staff, and family have all
consistently held that she does not need to be under a conservatorship.
The court in her case didn’t allow a single witness to speak on her
behalf after disqualifying her attorney.
One of the things that struck me in the recordings was that not one
single time where Mrs. B emphatically states she does not need to be
under a conservatorship does either attorney show any interest in
exploring that possibility. Why not? Research has shown that there is
little to no incentive for court-ordered conservators to report back to
the judge that a mistake has been made. In cases like Mrs. B, where
hundreds of millions are at stake, the conservators and the allies they
hire can make substantial amounts of money from managing their wards’
estates.
The American Bar Association published a study in 2017 on the
Restoration of Rights in Adult Guardianship
that found, “an unknown number of adults languish under guardianship”
when they no longer need it, or never did. The authors wrote that
“guardianship is generally permanent, leaving no way out—‘until death do
us part.’ ”
If you haven’t seen the Netflix show Dirty Money it’s worth taking the time to watch
their episode on Guardianships. It
provides a great primer on the abuse of conservatorships and
guardianships. Do yourself, your loved ones, and your community a favor,
grab some tissues, and go watch it ASAP.
It’s a gut-wrenching account of how a system intended to protect
seniors has robbed many of their lives and livelihood. It shows how
courts have ripped seniors away from their families, friends, homes,
priceless sentimental possessions, and most frequently, their money and
assets. That is the real target in most cases.
“This is supposed to be America. I still can’t believe it,”
John Savanovich, a senior who has lost everything, says through tears as at the
end of the episode.
Savanovich went to an attorney for help when he received notices from
the city for allowing his properties to become run-down after falling
into a depression following his mother’s passing. The lawyer used the
court system to become the conservator of Savanovich’s entire estate
and, against his wishes, not only sold the extra properties he owned,
but also his family home. They did not allow him to even collect his
belongings before it was torn down. The court ordered conservator sold
the properties for over a million dollars: money that they are now
refusing Savanovich access to.
The show highlights interviews with
Rachel Aviv who researched the issue for a feature story in the New Yorker, “
How the elderly lose their rights.”
Aviv wrote this alarming passage describing the system, “In the
United States, a million and a half adults are under the care of
guardians, either family members or professionals, who control some two
hundred and seventy-three billion dollars in assets, according to an
auditor for the guardianship fraud program in Palm Beach County. Little
is known about the outcome of these arrangements, because states do not
keep complete figures on guardianship cases—statutes vary widely—and, in
most jurisdictions, the court records are sealed. A Government
Accountability report from 2010 said, “We could not locate a single Web
site, federal agency, state or local entity, or any other organization
that compiles comprehensive information on this issue.”
The report details one of the biggest flaws in the system, one I feel
strongly needs the attention of Alabama lawmakers, Governor
Kay Ivey, and Attorney General
Steve Marshall.
One of the biggest problems within the system is the lack of
transparency and accountability in the system. There’s no way to find
out which courts or judges are putting seniors into the system and if
they are favoring certain guardians and/or conservators over others.
The GAO report states, “Our research did not identify any public,
private, or non-governmental organization that systematically tracks the
total number of guardianships or allegations of abuse, neglect, and
exploitation by guardians. GAO previously found that many of the courts
we surveyed did not track the number of guardianships that they were
responsible for monitoring. Our work also identified differences in the
way courts track guardianships. For example, in some jurisdictions,
records of guardianship appointments were available online, but in many
areas they were not.”
No state is and no jurisdiction seems immune to problems. The
Bashinsky case in my first story is not the only headline-worthy
guardianship/conservatorship case happening in the state right now.
After publishing my first story, I heard from others who have loved ones
languishing under conservatorships that are bleeding their finances dry
and stripping the wards of their independence, dignity, and even their
health.
A 2010 report titled “Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors” by the
U.S. Government Accountability Office
reviewed hundreds of allegations of abuse over a 20 year period. Their
findings stated, “Most of the allegations we identified involved
financial exploitation and misappropriation of assets. Specifically, the
allegations point to guardians taking advantage of wards by engaging in
schemes that financially benefit the guardian but are financially
detrimental to the ward under their care. Also, the allegations
underscore that the victim’s family members often lose their inheritance
or are excluded by the guardian from decisions affecting their
relative’s care.”
Late last year, the Attorney General’s office announced that Marshall was had obtained a
felony indictment of Limestone County District Court Judge on Ethics, Exploitation, and Theft Charges.
The charges center around
Doug Patterson and his
ward Charles Hardy. According to the Attorney General’s office, “Hardy,
who is now deceased, was an incapacitated senior living in a Limestone
County nursing home for military veterans. At the time Patterson became
his conservator, his account had over $43,000. By December 2016, the
account had less than $200, and Patterson had withdrawn $47,800 for his
own personal use. Patterson deposited Hardy’s money into his personal
account, his law firm account, and his business account. Some of these
withdrawals took place after Patterson became a judge. In each of these
instances, Patterson converted the money to personal use unrelated to
Hardy’s care or well-being.”
Crimes against the estates of seniors by those tasked with protecting
their interests aren’t new in Alabama either. In 2008, then-Attorney
General
Troy King successfully brought charges against
Covington County Probate Judge Sherrie Phillips. Phillips was arrested
and convicted of 6 felony ethics and theft charges stemming from $1.8
million she stole from the estate of a deceased man,
Cary Douglas Piper of Castleberry in Conecuh County. She served three years of a ten-year sentence and was
released in October 2012.
So what can we do? First, we need to find lawmakers willing to take
on the system to rid it of the many current opportunities for unethical
and illegal actions. We need to make sure that each person put into a
conservatorship has the opportunity that Mrs. Bashinsky was denied by
the Jefferson County court system to make their own case.
As the GAO report suggests, we need to increase transparency and
accountability by creating a statewide database that provides
information on conservators, judges, complaints, and disciplinary
action.
We need to disincentivize those who are given control over a ward of
the court’s assets from acting against their will, either by attempting
to undermine their efforts to prove their ability to control of their
own assets or by outright devious or unethical actions.
If a conservator has evidence that would lead a reasonable person to
believe that their charge does not belong under a court order and
doesn’t take the appropriate action to rectify the situation rather than
profiting off of it, there should be civil and criminal consequences.
Should any attorney do this, it should qualify them for disciplinary
action by the bar.
Full Article & Source:
Protected or Prisoner Part 2: How our grandparents and their livelihoods are being stolen by the court system
