The Perils of Probate Court in Retirement
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By Juliette Fairley | Thursday, 10 Mar 2016 07:32 AM
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After discovering that his philanthropist grandmother Brooke Astor was medically neglected, isolated from friends and living in squalor in a Manhattan Park Avenue duplex, Professor Philip Marshall was successful in replacing his father as power of attorney with a guardian who was a family friend.
“I petitioned the court for guardianship to save my grandmother and suggested Annette de la Renta,” said Marshall, a professor at Roger Williams University in Rhode Island.
As a result of her grandson’s efforts, Mrs. Astor was relocated to her 75-acre estate in Briarcliff Manor, New York while her son Anthony Marshall, who had reportedly failed to fill his mother’s prescription medication, was sentenced to prison for stealing from the Astor estate.
“I am now advocating for supported decision making over guardianship,” Marshall told Newsmax Finance.
Although there was a happy ending for Mrs. Astor, many family members nationwide don’t have the resources to withstand the perils of probate court.
“Concerned family members involved in litigation are often accused of being drug addicts or mentally ill by the attorneys of the court appointed guardians that use those kinds of tactics,” said Michael Larsen, author of Guardianship: How Judges & Lawyers Steal Your Money (Germain Publishing, February 3, 2016).
For example, Charlie Pascal was sued for defamation by his mother in law’s court appointed guardian.
“I’m legally blind so I represented myself using the Americans with Disabilities Act,” Pascal told Newsmax.
After Marcy DuDeck, Pascal’s relative, was placed under guardianship in Las Vegas in 2007 by Clark County Family Court Commissioner Jon Norheim, Pascal and his wife Heidi were banned from visiting the 93 year old.
“We also got calls from Morgan Stanley that the guardian was withdrawing large amounts of money from Marcy’s $1.2 million dollar trust,” said Pascal who began lobbying to reform Nevada state guardianship laws.
Under a court ordered guardianship, the elderly lose their individual and Constitutional rights around residence, medical care, assets and property and the consequences can be detrimental for families financially and the older relative’s health.
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Some 90% of families who responded to a national survey commissioned in 2015 by the Americans Against Abusive Probate Guardianship (AAAPG) reported that the judge in their case was not acting in the best interest of the incapacitated person, 80% suspected the judge was improperly influenced and 70% felt that, once placed, the retirement home did not act in the best interests of the elderly person.
An abusive or questionable guardianship does not have to be the end of the road. Other than filing an appeal, petitioning the court as an interested party is one way to hold an abusive or neglectful guardian accountable.
“Courts have limited authority to act so litigants need to tailor their relief to something the court can consider and order,” said Don Ford, a partner attorney at the boutique law firm Ford + Bergner LLP, which litigates guardianship cases across the state of Texas.
That’s why national advocates oppose the fact that guardianship structures are imposed on an elderly individual at all.
“The fundamental problem that all abusive guardianships share in common are rampant greed, disrespect for the value of older people and families, no regard for the law and the absence of any meaningful consequence for guardianship stakeholders,” said Dr. Sam Sugar, founder of AAAPG in Aventura, Florida.
Although progress is slow, raising awareness is making a difference.
In December 2015, the Nevada Supreme Court Guardianship Commission unanimously voted to send a letter to all sheriffs and district attorneys in the state, as well as the Attorney General, requesting that they prosecute misconduct and seek restitution for people subject to unjust guardianships. Two other laws passed include one that allows out of state relatives to be named guardians and another that requires guardians to be state certified before they can practice.
“We are now lobbying for stronger laws, which will require guardians to return to victims what they have taken,” said Pascal.
Juliette Fairley is an author, lecturer and TV host based in New York. To read more of her work, Click Here Now.
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