John Oliver is hardly a libertarian, but his Last Week Tonight show on HBO regularly highlights how US citizens are royally screwed by Uncle Sam and his minions. Over the years, he’s tackled subjects ranging from civil forfeiture to abuses in forensic science.
Recently, Oliver turned his attention to the guardianship system and how it can abuse senior citizens. Nearly 50 million Americans are 65 or older, and more than one million of them are under guardianship. Nearly 500,000 other disabled adults are part of the guardianship system as well.
State courts appoint guardians to make personal and financial decisions on behalf of adults found to be legally incompetent. A guardian is supposed to ensure that their “wards” have safe housing and help them negotiate a legal and medical system they may be incapable of dealing with on their own. According to an auditor for the Palm Beach County (Florida) guardianship fraud program, guardians control assets valued at $273 billion.
A ward loses nearly all civil rights once a judge approves a guardianship. The guardian has complete control over the ward’s personal and financial affairs. All of a ward’s money can be transferred to a guardian’s own account. A ward can also be forcibly relocated to any residential facility the guardian sees fit. Family members may lose the right to obtain information about the ward’s finances or medical conditions. Indeed, family members may even lose the right to visit the ward, because the guardian can forbid it.
As Judge Steve King of Tarrant County, Texas said on Oliver’s program: "Guardianship is a massive intrusion into a person's life… they lose more rights than someone who goes to prison."
The powers that guardians wield are rife with abuse. In a series of cases from Las Vegas described last year in The New Yorker, a guardian in Las Vegas named April Parks targeted elderly individuals with substantial assets. Parks persuaded doctors to declare these individuals incompetent and place them under her guardianship. She would then acquire control over their assets and charge outrageously high fees to arrange for their care. When her wards’ estates were depleted to the point where they qualified for Medicaid, she would place them in nursing homes at government expense. In virtually all cases, this happened without a formal cognitive assessment to determine if the ward could continue living independently.
Two of Parks’ victims were Rudy and Rennie North. In the summer of 2013, Rudy, then in his mid-70s, answered the door to their home in an active adult community in Las Vegas. He was confronted by Parks and three colleagues. Parks informed him that she had a court order to immediately remove both Rudy and Rennie from their home and commit them to an assisted-living facility. When Rudy objected, one of Parks’ co-workers threatened to call the police to have them forcibly removed.
Under the laws of Nevada and many other states, a guardian can file an emergency petition before a local court to impose an immediate guardianship. Parks had filed such a petition, claiming that the Norths posed a “substantial risk for mismanagement of medications, financial loss and physical harm.” The petition was backed up by a statement from a physician’s assistant and one of Rudy’s doctors, who claimed he was “confused and agitated.” However, no formal cognitive assessment of the Norths was required before they were placed under Parks’ care.
As a court-appointed guardian, Parks had complete control over the Norths’ finances. Once they’d been whisked away to the assisted-living facility, she arranged for their belongings to be removed from their home and sold at an estate sale. She also transferred the Norths’ savings account to an account in her name.
Like most guardians, Parks billed her wards’ estates for the time she spent on their case. Nevada law places no limits on these fees, so long as they are “reasonable.” A month later, Parks filed a petition before the Clark County Family Court to make the guardianship permanent. Like most such petitions, it was granted. The entire proceeding lasted 10 minutes.
When Judy Belshe, the Norths’ daughter, discovered her parents hadn’t been at their home in several days, she suspected they had been kidnapped. But on one of her visits, Belshe found a note taped to the door with Parks’ contact information.
Belshe called Parks and demanded to know where her parents were being held. Parks gave her the name and location of the assisted-living facility. When Belshe contested the guardianship, Parks claimed that Belshe was a “reported addict” who “has no contact with the proposed ward.”
Once the Norths’ estate had been depleted, Parks moved them to a less-expensive assisted living facility. When Belshe arrived at the new facility to visit her parents, Parks informed her she would not be allowed to do so. When Belshe persisted, Parks ordered a receptionist to contact the police. Belshe was given a trespassing citation and ordered to leave the premises.
Finally, more than two years later, Belshe was able to wrestle control over her parents away from Parks. But by then, they had lost their home, their savings, and of course, their dignity. The Norths filed a lawsuit against Parks, and in 2017, were awarded an $8.5 million judgment. It’s unlikely they’ll ever be able to collect on it, but the judgment confirmed their belief that they had been unwitting victims of a corrupt system.
In the meantime, Parks, her lawyer, and her office manager were indicted for racketeering, theft, perjury, and exploitation of their wards. Their trial is scheduled to begin in September.
The horror story surrounding the North guardianship is not an isolated case. I’ve come across abusive guardianship cases in many other states, including Arizona, California, Colorado, Florida, Georgia, Indiana, Maine, Massachusetts, Michigan, Missouri, New Jersey, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Texas, and Washington. And while I suspect the vast majority of guardians exercise their authority ethically and with discretion, if only 1% of guardianship cases are abusive, that means 15,000 Americans are victims of this system.
Since it’s extremely difficult to escape from a guardianship once you’re in the system, plan ahead to avoid it. Getting your legal documents in order is the best way to avoid becoming the next victim. We insist that all Nestmann clients execute durable powers of attorney and health care proxies and record them in public records.
These documents should name someone you trust – generally your children or grandchildren – to step in if you become incapacitated. Whomever you name should not be someone in financial difficulty who might use your assets to satisfy their own financial obligations. The document should also be revocable unless a formal cognitive assessment performed by a licensed physician (ideally two licensed physicians) determines you are incompetent.
Another precaution is to build a safety mechanism into your planning. If the agent you name steps in to assist you if you’re incapacitated, your documents should require the agent meet periodically with an independent party – your accountant, for instance – to ensure your assets truly are being used for your benefit.
The guardianship system is one of the biggest rackets in the US today. Don’t be the next victim of this corrupt system.
