On May 15, 2018, federal judge Lee H. Rosenthal in Houston issued a landmark ruling allowing a wrongful death lawsuit to proceed against the $500,000 public official bond of state probate judge Christine Butts in Harris County. The claim against Judge Butts’ bond was brought to the Southern District federal court of Texas by Sherry Johnston who alleges Judge Butts turned a blind eye to the preventable decline of her aging mother Willie Jo Mills while she was a ward of the State of Texas under guardianship.
“It is unconscionable that this abuse can occur under the watch of the U.S. Attorney General in 2018,” said Taso Pardalis, an attorney and partner with Pardalis & Nohavicka Lawyers in New York. “Approximately 5 to 10% of adult guardianships in this country are reported to have a fraudulent aspect — yet the percentage is most certainly much higher.”
In North Carolina, Ginny Johnson claims she had been named her father Hugh Beverley Johnson’s power of attorney and health care proxy but after a sibling filed for guardianship in Wake County’s Special Proceedings Estate Division Probate Court, a professional guardian was appointed instead.
Johnson says she cared for the 95 year old Hugh in the colonial home she was raised in for 35 years until one day, three months after her dad had been guardianized, she came home to find herself locked out of their Raleigh house with no trace of her Dad.
“My father was in great shape until he was warehoused by the court appointed guardian in a care center that starved him, restricted him from seeing me and didn’t shower him regularly,” Johnson said.
A year later, the elderly military veteran, who had owned a dry cleaning business, passed away at 96 years old, according to Johnson who has since filed a wrongful death lawsuit with the North Carolina Industrial Commission.
The Commission declined to comment.
“We are the state’s designated tribunal/court for tort claims against the State of North Carolina and, as such, we simply cannot comment on any potential, pending or adjudicated claim before us,” said J. Brian Ratledge, general counsel with the North Carolina Industrial Commission.
Johnson is among a growing number of adult children who regret involving their local court to stop the negative dynamics of their dysfunctional families.
“Family dysfunction and sibling rivalry are the primary reasons the matriarch or patriarch of a family is typically guardianized and ultimately starved, drugged or isolated to death unless they are restored to capacity,” said Dr. Sam Sugar, founder of Americans Against Abusive Probate Guardianship(AAAPG) in Hollywood, Florida.
Errol Rappaport has taken to standing in front of the residence daily where his 100 year old mother Frances resides with a sign that says, “I want to see my Mommy” in order to draw attention to the emotional pain he is experiencing at being alienated from his parent who is under a court appointed guardianship.
“I am my mother’s son, her flesh and blood,” Rappaport said. “I don’t understand why I cannot visit unannounced. My mother wants to be around family members when she passes away not caregivers.”
Rappaport says he was taking care of his elderly mother and father just fine but after his father died, relatives allegedly asked to sell the family’s $6 million apartment located at 200 Central Park South apartment and 59th Street.
When Rappaport opposed the sale, he says he was hauled into housing court where a judge appointed a guardian over his mother who was then moved to an apartment in Queens. Originally, the devoted son could visit the elderly Frances 5 hours a day but now he is allegedly only allowed to visit 2 hours and he has to schedule that time 48 hours in advance.
“What are they hiding?” Rappaport said.
The court appointed guardian in Rappaport’s case is Sabrina Morrissey, an attorney who declined to comment.
“Even though a guardianship should be used to honor the best interest of the ward, it’s become clear that the system has become a business,” said Pardalis.
A “ward” is a legal term used to describe a senior citizen who has been guardianized due to cognitive decline, such as memory loss. But younger adults are also at risk for becoming a ward of the state due to autism, mental illness or car accidents that lead to disabilities.
The AAAPG’s Dr. Sugar says he gets new calls daily from adult children who are either left penniless, restricted from visiting their parents or both.
“It’s the worst punishment to inflict on an adult child whose parent is at the end of their life because they may never see their mother or father again,” Dr. Sugar said. “Court insiders collude on these restricted visitation orders to crush any challenge to the Judge or guardian’s ultimate authority.”
Active pending adult guardianship cases in the U.S. range from fewer than 1 million to more than 3 million, according to the National Center for State Courts, but with baby boomers entering their golden years and experiencing Alzheimer’s or dementia, that number is on the rise.
By 2020, some 14 million seniors are expected to be afflicted, according to the Alzheimer’s Association data, and they will be at risk for guardianization by the courts.
“The court and the court appointed guardian cannot strip the person of all their assets unless they first declare the individual incapacitated at which point the guardian owns them the way a master owns a slave,” said Dr. Sugar who authored the best selling book Guardianships & The Elderly:The Perfect Crime.
That’s because once an individual is placed under guardianship, he or she becomes a ward of the state, forfeiting their assets while losing all of their rights.
Critics claim guardians appointed by judges, whether they are greedy family members or court insiders, rob the estate by overcharging for tasks and duties that family members perform out of love.
“Private guardians are legally allowed to charge a ‘reasonable’ fee but the State has not defined the term,” Pardalis said. “Some private guardians charge rates as high as $600 an hour for tasks as menial and mundane as writing emails. Fees are billed to the ward’s estate and without sufficient supervision by the State of the guardian’s operations, there is a high potential for financial abuse.”
Orders of restricted visitation can also be very expensive.
For example, Mary Bush in West Chester, Pennsylvania is required to pay $50 to visit her 87 year old mother Genevieve Bush who resides at Park Lane nursing home.
An APS worker and a Sheriff must also be present, according to Bush’s visitation order.
“The court has unjustly labeled me a criminal and violated my due process rights,” Bush said. “My mom had a million dollar estate that has been liquidated by court appointed guardians.”
The Honorable Judge Katherine Platt of the Chester County Court of Common Pleas declined to comment specifically on the Bush guardianship but stated that neither the county nor the state profit from senior citizens who are wards of the state of Pennsylvania under guardianship.
“If anything, they are a drain on judicial resources,” Judge Platt said. “Judges are law trained. We are not social workers and most of us don’t have advanced degrees in the mental health arena. Family dynamics, in some cases, go beyond what our constitutional commission requires of us.”
Judge Platt says she has witnessed court appointed guardians and judges alike being pulled into the dynamics when a parent of a dysfunctional family is guardianized.
“If a court appointed guardian has to deal with dysfunctional relatives of an incapacitated person, they are entitled to be compensated for the time it takes to intercede,” said Judge Platt, an Orphans’ Court judge.
As for orders of visitation that limit an adult child’s visitation with a relative at the end of their life, Judge Platt said, “There’s nothing written in our statute that defines severity.”
But Philadelphia Attorney Alan Denenberg defined severity in a federal lawsuit he filed in the U.S. District Court for the Eastern District of Pennsylvania against two Westtown East Goshen Police Officers whom he alleges conspired to violate Ms. Bush’s 4th Amendment Rights under the U.S. Constitution by using excessive force in the parking lot of Park Lane nursing home where Ms. Bush’s mother resides under guardianship.
Bush v. East Goshen Township et al, against Sergeant James Renegar and Ted Lewis of West Chester, outlines four counts including assault and battery under state law.
“Sgt. Renegar lunged at the Plaintiff Mary Bush, grabbing her cell phone and throwing it to the ground,” stated Counselor Denenberg in an August 29, 2018 Amended Complaint. “Sgt. Renegar then body slammed the Plaintiff onto the pavement causing her head to strike the hard surface. Although she was not resisting arrest, Sgt. Reneger got on top of the plaintiff, twisted her left arm way up her back and threatened to shoot or taser the Palintiff.”
The adult guardianship system in the U.S. is in plain need of greater oversight. But in the meantime, in order to avoid a full-on custody court battle that leads to restricted visits with relatives at the end of their lives, Judge Platt recommends professional mediation.
“Sometimes real contentions exist between family members and there’s quite a discernment that needs to take place to evaluate deep seated historical grievances,” she said. “Mediators have more time for the nuances.”
Meanwhile, the adult children who feel defrauded and are restricted from visiting their elderly relative are increasingly joining immigrant parents who are protesting being separated from their children under detention.
“We feel their pain,” Bush said. “It’s the same situation except it’s our elderly parents who are being detained and we are Americans being separated from them.”