From EB: Lillie White from Fla. granny napped for money by prof. guardian

Lillie White, above, an octogenarian from Palm Coast, Florida, went missing in August 2016. She was last seen at a doctor’s office where her niece Sheila had taken her for a checkup. Sheila was confused when an assistant called her into a back room to fill out more medical forms for her aunt, but she complied. When she returned to the waiting room, Aunt Lillie was gone. Sheila was told she had been escorted from the office by a court-appointed guardian who had refused to reveal where she was taking the 88-year-old.

Lillie White, top, and right with niece Sheila Kennedy Bryant. Embedded below is a 2016 family video of White speaking against guardianship before it was imposed on her.

Sheila and White’s other relatives quickly discovered that her sole granddaughter, who had been removed from White’s will, had convinced a court to make the retired educator, with at least $4 million in assets, a ward of the state.

More than two years would pass before Lillie’s anguished loved ones learned from a private investigator that she had been placed in the Brookdale Assisted Living/Memory Care facility in Volusia County, Florida, 35 miles north of her home. To this day Lillie is housed inside a locked unit for patients with dementia, an ailment her family insists she does not have. The relatives say she was not informed when her guardian sold her cherished home in Palm Coast and liquidated other of her assets to pay the hourly fees of the guardian, a court-appointed lawyer and other experts a judge had assigned to White’s case.

Lillie White’s case is not unique; it illustrates problems with guardianship that have been impervious to reform for decades — and that are growing with the expansion of the elderly population and opportunities to prey upon them.

Although there is no national database, the best estimates put the number of Americans living under court-initiated guardianships at between 1.3 and 1.5 million people, with net worths valued collectively at more than $50 billion.  Under guardianships, people deemed incompetent by a judge surrender control of their finances and all important life decisions to guardians collecting fees from the funds of the “protected persons.” Guardians typically charge from $95 to $400 an hour. They are empowered to employ any number of helpers – brushing aside family members willing to help – from personal shoppers and dog walkers to landscapers and home health-care nurses. Allegations of abuses and cronyism are frequent.

“It’s so easy for a nefarious person to operate in and around guardianship,” says Dr. Sam Sugar, founder of the Florida-based advocacy group Americans Against Abusive Probate Guardianship.  “It’s no wonder there is no firm data on what’s happening or how many people it affects. It is a racket.”  Sugar was caught up in a contentious guardianship battle involving his mother-in-law in Dade County, Florida. As is frequently the case, that dispute was ignited by squabbling siblings, one of whom took the family disagreement into the courts.  Sugar outlines both the problems and possible solutions to unwanted guardianships in his book, “Guardianships and the Elderly – the Perfect Crime.”

Related: Avoiding the Pitfalls of Elder Guardianship

In many cases nationwide, court-ordered guardianships work well, with dedicated professionals or family members assuming responsibility for vulnerable seniors. But the money involved and the wide-open nature of many state statutes – which allow not only family members but any adult to launch competency hearings – have led to the rise of a closed and secretive industry of elderly exploitation.

Exploitative guardianships are a stubborn outlier in efforts to combat elder abuse. The public first became aware of the problem in 1987 after a six-part exposé by the Associated Press involving reporters in all 50 states and the District of Columbia. Congressional hearings were held but no lasting reforms were enacted. Thirty years later Congress unanimously passed and President Trump signed into law the Elder Abuse Prevention and Prosecution Act. The 2017 legislation provided for the naming of more than 90 prosecutors and “elder justice coordinators” nationally to go after those committing elder abuse, including in guardianship cases.

Sen. Richard Blumenthal (D-Conn): “They often have a fiefdom, their own kingdoms, and they make a ton of money.”

But more than a year later, high-level frustration with the guardianship problem is clearly evident. At a November 2018 congressional hearing on the guardianship system, Sen. Richard Blumenthal (D-Conn), a co-sponsor of the 2017 law, seethed.  “I don’t need any more information,” he said. “I’ve seen how the system works in Connecticut. … The impact on families is enormous.”

Blumenthal said he hears over and over again from upset constituents with guardianship complaints. Some Connecticut probate judges who make life-altering legal rulings in such cases have never gone to law school, he complained. “They often have a fiefdom, their own kingdoms, and they make a ton of money.”

“In too many cases, the system lacks basic protections, leaving too many Americans vulnerable to exploitation,” agreed Sen. Susan Collins (R-Maine), the current chair of the Special Committee on Aging. She promised more investigation and legislation.

Antoinette Bacon, the assistant U.S. attorney responsible for guardianship investigations under the new law, would not comment for this article.

Elaine Reniore, president of the National Association to STOP Guardian Abuse, says widespread apathy is at the core of the abusive guardian system. “We don’t care about our seniors, society on the whole just doesn’t care,” she said during an interview from her home in Indiana. “What we’ve done is separate ourselves from the problem by putting them in nursing homes.  Seniors are basically not good-looking and cute like puppies and kittens. … Old people are in the way.”

Reniore, whose grandmother was placed into an unwanted guardianship after a family disagreement in 1994, does not believe the solution to abuse lies with the federal government; her group lobbies state lawmakers, urging passage of its “right to association” bill.  It prohibits court appointees from indiscriminately banning visits with wards from family members, who are often the best defense against unscrupulous activity. So far, seven states and the Virgin Islands have passed some version of it.

Advocates argue that since taxpayers fund their state court systems, guardianships should have greater transparency. But often the protected person’s right to privacy takes precedence.  It is up to judges to police their appointees, but funds to monitor them are scarce, and judges are often little inclined to keep track of what guardians or attorneys are doing or spending on behalf of the ward.

“Judges, they push everything through,” said Hillary Hogue, who successfully fought a long battle to keep her father out of an unwanted guardianship. “They are the epitome of the disinterested.”

Rick Black: In Florida “there isn’t one agency there that has done anything for any of the families I counsel. …”

Rick Black, founder of the Center for Estate Administration Reform, says Florida is a microcosm of all that is wrong with the guardianship system in America. It is therefore No. 1 on his list of states that should not be considered for retirement.

“There isn’t one agency there that has done anything for any of the families I counsel, not one decertification [of a guardian], not one prosecution,” Black said.  “This in a state that has more retirees, and more complaints, than any other.”

Renoire agrees. Of the five or six complaints of abusive guardians per day that her group receives, “we get a lot of complaints from Florida first, then Texas,” she said. “Any state that’s called a ‘retirement state’ is where the old folks are concentrated and that’s where problems crop up.”

Florida – which according to Kiplinger Personal Finance magazine has at least 3.5 million residents 65 and older, with another 1,000 or so moving to the state every day — is beginning to address the problem.

Palm Beach County Clerk Sharon Bock says guardianship abuse came on her radar in 2008. While overall crime statistics declined during the economic recession, she noticed a marked uptick in criminal complaints against guardians. Bock and her deputy inspector general, Anthony Palmieri, established the country’s first elder hotline and quickly realized guardianship complaints were a nationwide problem.

Sharon Bock, Palm Beach County Clerk: “Family members are sometimes their own worst enemies.”

“Anyone who Googled ‘problems with guardianship’ or ‘problems with wards of the court’ — we came up first,” Bock said. “We were the only game in town, the only game in the whole United States.”

Back then, each of Florida’s 67 county clerks were responsible for dealing with guardianship issues in their own county. It wasn’t until 2016 that lawmakers established the statewide Office of Public and Professional Guardians.

But critics say Florida’s law is too little too late. Today, more than two years and 500 hotline complaints later, responding to  guardianship grievances remains difficult and cumbersome, according to Palmieri. In a state with 550 registered guardians, he says, the task is enormous.

“Each complaint may have numerous allegations,” Palmieri explained. “One had 44 allegations and we had to systematically go through every one to see if they could be substantiated. It takes a long time.”

“There’s got to be proof,” Bock said. “Otherwise it would just be a lynch mob. Why does a family member make 44 allegations?” she asked.  “These family members are sometimes their own worst enemies.”

Critics point to a series of recent high-profile elder guardian scandals as evidence that Florida remains unwilling to confront the problem. Among them:

  • Palm Beach County Guardianship Judge Martin Colin was found to have convinced a lawyer who practiced before him to help his wife, tennis instructor Elizabeth Savitt, enter the lucrative professional guardian arena. The judge then funneled cases to that lawyer with the understanding that Savitt would be appointed guardian. Other judges also reportedly colluded to favor Savitt.  After numerous family complaints about Savitt’s behavior, the Office of Public and Professional Guardians filed its first administrative complaint against her in January 2018. An administrative law judge heard the case and in December 2018 ruled the complaint should be dismissed. That decision is currently under appeal. In the meantime, Savitt continues to operate as a registered guardian in Florida. Her husband retired from the bench in December 2016. Attempts to reach Savitt and Colin were unsuccessful.
  • In August 2017 a federal court jury awarded an unprecedented $16.4 million to Julian Bivins, the son of a Texas oilman whose estate was found to be ill-served and overbilled by two West Palm Beach attorneys. That happened after the father, Oliver Bivins, at age 93, had simply travelled to Florida to check on a condominium he owned and was caught up in an exploitative guardianship. The case dragged on for six years. At one point the same Palm Beach guardianship judge, Colin, openly praised the offending lawyers, Brian M. O’Connell and Ashley N. Crispin, and refused to sign an emergency order filed by one of the elder Bivins’s court-appointed guardians that would have allowed him to return to Texas. Ultimately, after an expensive court battle, Julian Bivins won his father’s freedom and took him home to Texas. Oliver died there 35 days later.
  • Professional guardian Fernando Gutierrez, 58, a former director of the Guardian Association of Pinellas County, was accused of financially exploiting at least two elderly people in his care at hospitals, nursing homes and assisted living facilities.  A Pinellas County Inspector General’s Office investigation found, among other things, that Gutierrez “parks in physician parking spots, then puts on a white lab coat” before entering the facility and allegedly coercing the vulnerable to sign papers assigning to him power of attorney or making him beneficiary to their bank accounts and insurance policies. One police report quoted hospital staff as saying Gutierrez appeared to be trolling for patients for whom he did not have legal guardianship. Another hospital alleged Gutierrez unlawfully authorized surgery for a patient. When the Florida Attorney General’s office had him arrested in June 2017 Gutierrez was reported to be the legal representative for more than 50 people. An attorney for Guiterrez says: “He has no previous criminal history.  He is presumed innocent. We look forward to presenting the case in court.” The trial is set for June 2019.
  • Rick Black of the estate reform center is currently counseling several Florida families lodging complaints against guardian Traci Samuel in both Pinellas and Hillsboroughcounties. He alleges that Samuel isolates her wards from loved ones and friends and takes legal steps, such as filing restraining orders, to punish those who question her behavior. Court-stamped documents also list several of her wards’ properties that were sold for well under market value. The Pinellas County Circuit Court docket shows Samuel has been named as guardian to about 50 Floridians. In a telephone interview, Samuel defended her actions as being centered on what she sees as quality care for her wards. She insisted that all real estate transactions made on behalf of her wards have been approved by the court.

Black says he has spent many hours on one particular case under Samuel’s control, that of 84-year-old Gentye Dirse, who for nearly 40 years operated a small, popular motel near St. Petersburg Beach. The Dirse case highlights that anyone – even a mere acquaintance or non-relative – can file a court petition to establish a guardianship.

Gentye Dirse and great-nephew Gedi Pakalnis.

In late January 2018, a local real estate agent, Diana Sames, quietly filed the first court document for guardianship of Gentye Dirse – a Petition to Determine Incapacity. Dirse’s young great-nephew, Gedi Pakalnis, who moved from his great-aunt’s native Lithuania to help Gentye run the complex some 15 years ago, says Sames was “always pestering my great-aunt to sell her property.” Neither Dirse nor her great-nephew were aware of the document filing.

Sames’ paperwork said she had seen a decline in Dirse’s “memory and orientation as to people and things around her” and asked the court to appoint Samuel as the guardian. As proof of her claim, Sames cited a recent real estate transaction between the elder Dirse and her great-nephew in which she had sold a home on her property to him for $50,000, well below the market value of $500,000.

Gedi Pakalnis told RealClearInvestigations he believes Samuel and Sames colluded to get what his great-aunt was unwilling to sell them – a desirable property just steps away from St. Petersburg Beach. He also insisted that his great-aunt initiated the sale of the home to him to ensure he would stay close to help with the motel as she grew older.  Sworn affidavits from a neighbor and a frequent motel guest support Pakalnis’s assertions.

As a neighbor wrote to the court in early 2018, “[The agent] kept asking Geny [sic] about selling the property,” and when Ms. Dirse refused, the agent “showed up with another lady trying to get Geny [sic] to sign some papers. I was in the house when this took place.”

Contacted by phone, real estate agent Sames vigorously denied that she had designs on Dirse’s half-million-dollar complex and said she was only trying to help protect the elderly woman because “she was so very vulnerable and confused.” Sames expressed deep suspicion of Pakalnis’s motives and called him a “con man.”

Sames’ guardianship petition was successful.  Mrs. Dirse was declared incapacitated and Traci Samuel was appointed as Dirse’s guardian in April 2018.  Four months later, the elderly woman was removed from her property and involuntarily placed in an assisted-living facility.  Pakalnis has been allowed to see his great-aunt just once, in November 2018.  Although Judge Pamela Campbell said in open court in mid-December that Pakalnis should go see Mrs. Dirse for the holidays, guardian Samuel said during the phone interview that he was turned away because he was accompanied by two unapproved visitors who are outspoken guardian activists.

In early January 2019, Samuel petitioned the court for a temporary restraining order to ban Pakalnis and the two others from visiting his great-aunt. That matter was later dropped. The guardian’s civil suit to void the property sale to Pakalnis is still pending.

Every court action activates both guardian and lawyer fees.  Court documents show that, in the first six months as Dirse’s guardian, Samuel, whose hourly rate is $350, charged fees to her ward’s estate totaling $30,404.50. Thousands more went to the guardian’s attorney and another lawyer the court had appointed to represent Dirse’s interests. Her estate is being charged to fight off her closest living relative.

‘Isolate the Victim’

“I have investigated or counseled over 100 Florida cases in the last four years,” Black said. “Abductions by the professionals are common.”  Their playbook seems to follow a sure pattern, according to Black, no matter which state is involved.  “It is always isolate the victim, defame legitimate heirs and protectors and liquidate the estate,” so the court appointees can have ready cash to pay their own fees.

Distraught Florida families suddenly caught up in guardianships are confused about where to turn for assistance. State agencies don’t come to the rescue, politicians say they can’t help, law enforcement is not allowed to step into court-involved civil disputes, so many in need of help turn to the legal community.  But those who have lived through the ordeal of having a loved one involuntarily forced into an unwanted guardianship say they are wary of those who specialize in the field.

Florida law gives any “adult person” the right to file a guardianship petition and question someone’s competency including a neighbor, real estate agent, business partner, unhappy lover or total stranger in a hospital or nursing home.  Dr. Sugar points to the case of the guardianship lawyer in Boca Raton, Florida, who filed a petition against Donald Trump during the presidential campaign. Attorney James Herb claimed Trump exhibited signs of histrionic and narcissistic personality disorder and asked a judge to order a competency examination to determine if he was competent to hold office.

“I’m scared … for myself and everyone in Palm Beach County, the state, the United States and the world,” Herb wrote.  The petition was denied.

Family video, 2016: During an unsuccessful, six-year fight to ward off
guardianship, Lillie White speaks against the system.

As for Lillie White, for two years her family reached out to myriad state agencies for help just to locate her.  The Office of Public and Professional Guardians’ statewide hotline for elder complaints was ineffective, the relatives said. A wide range of other agencies and officials – including the Florida Department of Elder Affairs, the Office of Public and Professional Guardians, Adult Protective Services, the Flagler County Sheriff, the offices of state Attorney General Pam Biondi, then-Gov. Rick Scott’s office and then-Sen. Bill Nelson – all provided a familiar response:  This is a civil matter, a judge has ruled, we cannot intervene. 

A fleeting reunion in late 2018 at the assisted-living facility where Lillie White is kept under guardianship. She’s flanked at left by sister Janie Sykes-Kennedy and, right, niece Terri Kennedy.

In a last-ditch move to free White from guardianship, her younger sister, Janie Sykes-Kennedy, filed a plea in December 2018 asking federal and Florida law enforcement authorities to open a criminal investigation into the case. But the nine-page plea indicates a defeat for White: It says her original guardian, Sara Caldwell, may have been replaced recently by her estranged granddaughter, Lisa Rene — described in the plea as the person “victimizing White for seven years.”

Rene, who lives in Maryland, did not respond to repeated requests for comment. Whether she now has control over White’s estate cannot be confirmed through the courts because of the secrecy that surrounds elder guardianship cases. Confidentiality is routinely ordered by judges and case files are sealed for “the protection of the ward,” as court insiders say.

After repeated requests for an interview with the executive director of the Office of Public and Professional Guardians, Carol Berkowitz, RealClearInvestigations was informed via e-mail from a subordinate in mid-January: “We are extremely busy with the transition to a new Governor in the State of Florida and are not doing interviews at this time.” After written questions regarding guardians Caldwell and Samuel were submitted, the office confirmed both are currently under investigation by state inspectors general. No disciplinary action or charges have been filed and both women continue to operate as professional guardians.

Samuel said she was unofficially told by an OPPG insider that there “was no merit to the complaint” against her. Caldwell, when asked about an investigation into her actions said, “I have been told that by the OPPG, by the Florida Major Crimes Unit, by various sheriff’s departments, by the U.S. Attorney’s office and by the FBI. I have been cleared.” On Feb. 21, a spokesperson for the Office of Private and Professional Guardians emailed regarding the Caldwell inquiry: “The OPPG investigation has not yet concluded.”

Terri Kennedy, another of White’s nieces, says she is using everything she learned as a Harvard graduate to continue to fight to free her Aunt Lillie from what the family sees as a fraudulent guardianship. They believe the case was mishandled from the start by a colluding group of guardianship regulars including the judge, various lawyers, for-profit court appointees and operators of the assisted-living facility.

Late last year, Terri and her mother, Janie, finally located Lillie and found a way to visit with her inside the locked ward.  They asked that details about how they achieved their reunion be kept private, but it was described as “emotional and wonderful.” But they worry that Lillie has been medicated, perhaps over-medicated, into involuntary compliance while at the facility.

“They try to say it’s a civil issue, but there are federal crimes being committed,” Terri Kennedy said. “Constructive fraud, racketeering, extortion, kidnapping.” She describes what happened to her Aunt Lillie, who is now 90, as “a legal lynching.”

Correction, Feb. 22, 2019, 7:30 A.M. Eastern
This article has been revised to reflect the following correction:
An earlier version of this article misstated the number of states with “right to association” laws prohibiting court-appointed guardians from indiscriminately banning family visits to their wards. Seven states plus the Virgin Islands have enacted such laws, not eight states.


from FB: Indiana civil forefeiture law struck down unconstitutional when man with $40k SUV seized over $400 drug sale.

When the government becomes the criminal……

Let’s hear it for Justice Ruth Bader Ginsberg, protecting the little guy.

In case you didn’t know, civil forfeiture laws have been implicated in police depts reselling all sorts of items, and then wasting the money on parties, and all sorts of nonsense purchases.  It’s nothing but govt gone wild.


Supreme Court civil forfeiture case: Justices back man whose $40K SUV was seized over $400 drug sale
The Supreme Court ruled unanimously Wednesday that the Constitution’s ban on excessive fines applies to the states, an outcome that could help efforts to rein in police seizure of property from criminal suspects. Justice Ruth Bader Ginsburg wrote the court’s opinion in favor of Tyson Timbs, of Marion, Indiana.

Police seized Timbs’ $40,000 Land Rover when they arrested him for selling about $400 worth of heroin. The Institute for Justice, which represents Timbs, argued that under Indiana law, the maximum fine such an offense is $10,000, CBS affiliate WTTV reported. 


Reading a summary of her opinion in the courtroom, Ginsburg noted that governments employ fines “out of accord with the penal goals of retribution and deterrence” because fines are a source of revenue. The 85-year-old justice missed arguments last month following lung cancer surgery, but returned to the benchon Tuesday.

Timbs pleaded guilty, but faced no prison time. The biggest loss was the Land Rover he bought with some of the life insurance money he received after his father died.

Timbs still has to win one more round in court before he gets his vehicle back, but that seems to be a formality. A judge ruled that taking the car was disproportionate to the severity of the crime, which carries a maximum fine of $10,000. But Indiana’s top court said the justices had never ruled that the Eighth Amendment’s ban on excessive fines – like much of the rest of the Bill of Rights – applies to states as well as the federal government.

The case drew interest from liberal groups concerned about police abuses and conservative organizations opposed to excessive regulation. Timbs was represented by the libertarian public interest law firm Institute for Justice.

Law enforcement authorities have dramatically increased their use of civil forfeiture in recent decades. When law enforcement seizes the property of people accused of crimes, the proceeds from its sale often go directly to the agency that took it, Institute for Justice lawyer Wesley Hottot said in his written arguments in support of Timbs.

“This case is about more than just a truck,” Hottot WTTV. “This case is about whether 330 million Americans coast to coast enjoy the protections of the Bill of Rights”

The case is Timbs v. Indiana, 17-1091.


You can read the opinion here:

Click to access 17-1091_5536.pdf

From BP; Case law on how the state cannot remove your child from your home without a warrant signed by a judge

In Illinois there are tons of kids removed from their homes without a warrant by DCFS.

Why a warrant?  A warrant must be accompanied by an affidavit that makes sense and clearly states probably cause.  It is then reviewed by the judge and signed off by a judge.  This may not be a perfect system, but you do have a prosecutor involved, a judge involved, not just some BS from DCFS.  (Brian Peterson case)

Here is the law on that issue.  If you have a state or medical kidnap case, be sure to know your rights. DO NOT TALK TO DCFS OR THE POLICE without your lawyer being present.  Tell DCFS you will cooperate but they must put questions in writing and your lawyer will answer those questions for you.

Too many false removals in Illinois.

Know your rights.

Don’t put your kids in danger into a system in Illinois where they admit they don’t know the location of some 3,000+ children at any given time (yes, that is right, over 3,000.  kids run away from foster care and DCFS has no idea where they are but the payments keep on flowing).

DCFS/CPS, etc. is long known for being involved in sex trafficking of children.

Be aware.

Read on

This instruction is a variation on CACI No. 3021, Unlawful Arrest by Peace Offıcer
Without a Warrant—Essential Factual Elements, and CACI No. 3023,
Unreasonable Search—Search Without a Warrant—Essential Factual Elements, in
which the warrantless act is the removal of a child from parental custody rather
than an arrest or search. This instruction asserts a parent’s due process right to
familial association under the Fourteenth Amendment. It may be modified to assert
or include the child’s right under the Fourth Amendment to be free of a warrantless
seizure. (See Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455,
1473−1474 [150 Cal.Rptr.3d 735].)
Warrantless removal is a constitutional violation unless the authorities possess
information at the time of the seizure that establishes reasonable cause to believe
that the child is in imminent danger of serious bodily injury and that the scope of
the intrusion is reasonably necessary to avert that specific injury. (Arce, supra, 211
Cal.App.4th at p. 1473.) The committee believes that the defendant bears the
burden of proving imminent danger. (See Evid. Code, § 500 [“Except as otherwise
provided by law, a party has the burden of proof as to each fact the existence or
nonexistence of which is essential to the claim for relief or defense that he is
asserting.”]; cf. Welsh v. Wisconsin (1984) 466 U.S. 740, 750 [104 S.Ct. 2091, 80
L.Ed.2d 732] [“Before agents of the government may invade the sanctity of the
home, the burden is on the government to demonstrate exigent circumstances that
overcome the presumption of unreasonableness that attaches to all warrantless
home entries.”].) CACI No. 3026, Affırmative Defense—Exigent Circumstances (to
a warrantless search), may be modified to respond to this claim.
If the removal of the child was without a warrant and without exigent
circumstances, but later found to be justified by the court, damages are limited to
those caused by the procedural defect, not the removal. (See Watson v. City of San
Jose (9th Cir. 2015) 800 F.3d 1135, 1139.)
Sources and Authority
• “ ‘ “Parents and children have a well-elaborated constitutional right to live
together without governmental interference.’ [Citation.] ‘The Fourteenth
Amendment guarantees that parents will not be separated from their children
without due process of law except in emergencies.” This ‘right to family
association’ requires ‘[g]overnment officials . . . to obtain prior judicial
authorization before intruding on a parent’s custody of her child unless they
possess information at the time of the seizure that establishes “reasonable cause
to believe that the child is in imminent danger of serious bodily injury and that
the scope of the intrusion is reasonably necessary to avert that specific injury.”
[Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1473, internal citations
• “ ‘The Fourth Amendment also protects children from removal from their
homes [without prior judicial authorization] absent such a showing. [Citation.]
Officials, including social workers, who remove a child from its home without a
warrant must have reasonable cause to believe that the child is likely to
experience serious bodily harm in the time that would be required to obtain a
warrant.’ Because ‘the same legal standard applies in evaluating Fourth and
Fourteenth Amendment claims for the removal of children,” we may “analyze
[the claims] together.’ ” (Arce, supra, 211 Cal.App.4th at pp. 1473−1474.)
• “While the constitutional source of the parent’s and the child’s rights differ, the
tests under the Fourteenth Amendment and the Fourth Amendment for when a
child may be seized without a warrant are the same. The Constitution requires
an official separating a child from its parents to obtain a court order unless the
official has reasonable cause to believe the child is in ‘imminent danger of
serious bodily injury.’ Seizure of a child is reasonable also where the official
obtains parental consent.” (Jones v. County of L.A. (9th Cir. 2015) 802 F.3d
990, 1000, internal citations omitted.)
• “[W]hether an official had ‘reasonable cause to believe exigent circumstances
existed in a given situation . . . [is a] “question[] of fact to be determined by a
jury.” [Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1475.)
• “Importantly, ‘social workers who remove a child from its home without a
warrant must have reasonable cause to believe that the child is likely to
experience serious bodily harm in the time that would be required to obtain a
warrant.’ ” (Kirkpatrick v. County of Washoe (9th Cir. 2015) 792 F.3d 1184,
1194, original italics.)
• “[A] child is seized for purposes of the Fourth and Fourteenth Amendments
when a representative of the state takes action causing a child to be detained at
a hospital as part of a child abuse investigation, such that a reasonable person
in the same position as the child’s parent would believe that she cannot take her
child home.” (Jones, supra, 802 F.3d at p. 1001.)
• “[A] jury is needed to determine what a reasonable parent in the [plaintiffs’]
position would have believed and whether [defendant]’s conduct amounted to a
seizure.” (Jones, supra, 802 F.3d at p. 1002.)
• “In sum, although we do not dispute that Shaken Baby Syndrome is a serious,
life-threatening injury, we disagree with the County defendants’ assertion that a
child may be detained without prior judicial authorization based solely on the
fact that he or she has suffered a serious injury. Rather, the case law
demonstrates that the warrantless detention of a child is improper unless there is
“specific, articulable evidence” that the child would be placed at imminent risk
of serious harm absent an immediate interference with parental custodial
rights.” (Arce, supra, 211 Cal.App.4th at p. 1481.)
• “[I]n cases where ‘a deprivation is justified but procedures are deficient,
whatever distress a person feels may be attributable to the justified deprivation
rather than to deficiencies in procedure.’ In such cases, . . . a plaintiff must
‘convince the trier of fact that he actually suffered distress because of the denial
of procedural due process itself.’ ” (Watson, supra, 800 F.3d at p. 1139, internal
citation omitted; see Carey v. Piphus (1978) 435 U.S. 247, 263 [98 S.Ct. 1042,
55 L.Ed.2d 252].)
Secondary Sources
3 Civil Rights Actions, Ch. 12B, Deprivation of Rights Under Color of State Law–
Family Relations, ¶ 12B.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
3 California Points and Authorities, Ch. 35A, Civil Rights: Equal Protection,
§ 35A.29 et seq. (Matthew Bender)
3052–3059. Reserved for Future Use

From EB: oversight on Florida’s “professional guardians” results in 0 investigations after 134 complaints

State watchdog does little to hold court-appointed guardians accountable

No guardians removed, 132 investigations open
Posted: 5:36 PM, Feb 20, 2019
Updated: 5:21 PM, Feb 20, 2019

ST. PETERSBURG, Fla. — A state watchdog set up to police Florida’s troubled guardianship system has taken little action to hold court-appointed guardians accountable for serious violations, the I-Team found.

The Office of Public and Professional Guardians – set up by lawmakers in 2016 – has handed out only 19 warning letters since it was established, state records show.


The best legal planning may not be enough to keep you safe from guardianship

Realtor seeks court-ordered guardianship to take away rights of elderly beach hotel owner

Public records obtained by I-Team Investigator Adam Walser show the watchdog agency cited guardians for taking property, depositing a check made out to a person in their care into a personal bank account and failing to disclose past criminal histories in an application to be appointed as guardian.

But despite those serious violations, the agency has never revoked a guardian’s registration.

The I-Team reported earlier this week on two cases reported to the state watchdog.

In one case, a local realtor went to court to put an 84-year-old beach hotel owner she barely knows into guardianship because she didn’t approve of her selling her property to her great nephew.

In another case, a court-appointed guardian took the wedding ring off an 85-year-old widow’s finger and put her in assisted living – even though she made retirement plans to protect herself.

The watchdog agency told the I-Team it has 132 open investigations. It’s unclear how many individual guardians are under investigation, but only 551 are registered in Florida.

“The fact that the Office of Public and Professional Guardians can’t stop, that tells me it’s not serving the desired purpose,” said Rick Black, who is the founder of the Center for Estate Administration Reform, a national advocacy group.

He believes the office needs the ability to refer guardianship abuse cases to law enforcement for prosecution.

Currently, the only penalty OPPG can impose is revoking a guardian’s registration.

Black was among dozens of people from all over the country gathered in Tampa Wednesday for what was billed as a guardianship abuse forum, an event sponsored by nonprofit Americans Against Abusive Probate Guardianship, which advocates for families involved with guardianship cases and lobbies lawmakers for stronger oversight of the system.

“There’s people from California, from New York, from Nevada,” Black said. “It’s not just a Sunshine State problem. It’s a national issue that revolves around a dysfunctional court.”

Judge calls for change

Pinellas County Circuit Court Judge Linda Allan said problems are rampant in Florida’s guardianship system, which is supposed to protect people who can no longer care for themselves.

“The system is far from perfect,” said Allan about her six years on the bench in probate court, overseeing thousands of guardianship cases.

She said she has removed guardians from cases and reported suspected theft and exploitation to prosecutors.

“No question about it,” said Allan when asked whether financial abuse is a problem in the guardianship system.

Allan, who is currently assigned to the court’s civil division, oversaw thousands of guardianship cases during six years on the bench in probate court.

“It made me a bit more cynical about our process,” said Allan.

Allan said the state’s watchdog isn’t doing enough.

“So far, I haven’t really seen any real impact, except for providing another location for someone to bring a complaint,” said Allan.

A spokesperson for the Office of Public and Professional Guardians said the agency relies on local clerks of court to investigate complaints because they don’t have the money to hire independent investigators.

That’s something Judge Allan says needs to change – if the system is to truly be reformed.

“I could probably come up with a lot of ideas, but they would all cost money,” said Allan.

If you have a story you’d like the I-Team to investigate, email

From FB: A very scary statute of “chemical endangerment” entices overly zealous prosecutors to charge women who lost a baby at birth or that was stillborn

Here is an interesting article where some over zealous prosecutors are using a statute to go after women who have miscarried, had a stilborn baby or lost a baby shortly after birth on “chemical endangerment”, a statute that was meant to protect children from parents who cook meth at home.

Typically, a state may test tissues from a still birth or birth (generally poor women) for metabolites of drugs, but not the drugs themselves.  Many food items can mimic illegal drugs, as we know (poppy seeds, second hand smoke from marijuana users, etc.) all types of legal activities can be absorbed into the mother’s blood system and turn up as a “metabolite  of a drug” and then the mother might be prosecuted.

Prosecutors must be told to only prosecute when active, verifiable drugs are found in a woman’s system, and even then, it would seem better to send a   woman to rehab and not jail, esp. when many drugs also come in legal forms and may have been prescribed to the woman (opiod pain relievers) before she or her doctor knew she was pregnant.

In addition, for many drugs, there is not even a link or much of a link between death or damage to a fetus and drug intake.

Laws applied like this may force more drug addicted women to go underground, stay away from doctors and clinics if they took any drugs, and push women to home births with midwives and perhaps unlicensed individuals out of fears their babies could be removed from them.

Last but not least, we have the numerous articles on how entire drug test labs for years produced false reports and then false removals of children from parents (see other articles on this and other blogs).

(Currently I have heard of a case where the parent donated plasma for weeks, the state took his child away from him wrongfully, he had one positive drug test out of some 50 weeks, but the crazy thing is, if he really did drugs, how then was he cleared to donate plasma? )   The situation with these drug testing labs, and their quality assurance standards should be of much concern to all of us, when bad results means a parent loses a kid for no reason, or an innocent woman with a still born baby is arrested on murder charges.

Technology is great, but we must take care not to misuse it.


Outcry in America as pregnant women who lose babies face murder charges

Women’s rights campaigners see the creeping criminalisation of pregnant women as a new front in the culture wars over abortion
Fetus US criminals
 Across the US, more and more prosecutions are being brought against women who lose their babies. Photograph: Alamy

Rennie Gibbs is accused of murder, but the crime she is alleged to have committed does not sound like an ordinary killing. Yet she faces life in prison in Mississippi over the death of her unborn child.

Gibbs became pregnant aged 15, but lost the baby in December 2006 in a stillbirth when she was 36 weeks into the pregnancy. When prosecutors discovered that she had a cocaine habit – though there is no evidence that drug abuse had anything to do with the baby’s death – they charged her with the “depraved-heart murder” of her child, which carries a mandatory life sentence.

Gibbs is the first woman in Mississippi to be charged with murder relating to the loss of her unborn baby. But her case is by no means isolated. Across the US more and more prosecutions are being brought that seek to turn pregnant women into criminals.

“Women are being stripped of their constitutional personhood and subjected to truly cruel laws,” said Lynn Paltrow of the campaign National Advocates for Pregnant Women (NAPW). “It’s turning pregnant women into a different class of person and removing them of their rights.”

Bei Bei Shuai, 34, has spent the past three months in a prison cell in Indianapolis charged with murdering her baby. On 23 December she tried to commit suicide by taking rat poison after her boyfriend abandoned her.

Shuai was rushed to hospital and survived, but she was 33 weeks pregnant and her baby, to whom she gave birth a week after the suicide attempt and whom she called Angel, died after four days. In March Shuai was charged with murder and attempted foeticide and she has been in custody since without the offer of bail.

In Alabama at least 40 cases have been brought under the state’s “chemical endangerment” law. Introduced in 2006, the statute was designed to protect children whose parents were cooking methamphetamine in the home and thus putting their children at risk from inhaling the fumes.

Amanda Kimbrough is one of the women who have been ensnared as a result of the law being applied in a wholly different way. During her pregnancy her foetus was diagnosed with possible Down’s syndrome and doctors suggested she consider a termination, which Kimbrough declined as she is not in favour of abortion.

The baby was delivered by caesarean section prematurely in April 2008 and died 19 minutes after birth.

Six months later Kimbrough was arrested at home and charged with “chemical endangerment” of her unborn child on the grounds that she had taken drugs during the pregnancy – a claim she has denied.

“That shocked me, it really did,” Kimbrough said. “I had lost a child, that was enough.”

She now awaits an appeal ruling from the higher courts in Alabama, which if she loses will see her begin a 10-year sentence behind bars. “I’m just living one day at a time, looking after my three other kids,” she said. “They say I’m a criminal, how do I answer that? I’m a good mother.”

Women’s rights campaigners see the creeping criminalisation of pregnant women as a new front in the culture wars over abortion, in which conservative prosecutors are chipping away at hard-won freedoms by stretching protection laws to include foetuses, in some cases from the day of conception. In Gibbs’ case defence lawyers have argued before Mississippi’s highest court that her prosecution makes no sense. Under Mississippi law it is a crime for any person except the mother to try to cause an abortion.

“If it’s not a crime for a mother to intentionally end her pregnancy, how can it be a crime for her to do it unintentionally, whether by taking drugs or smoking or whatever it is,” Robert McDuff, a civil rights lawyer asked the state supreme court.

McDuff told the Guardian that he hoped the Gibbs prosecution was an isolated example. “I hope it’s not a trend that’s going to catch on. To charge a woman with murder because of something she did during pregnancy is really unprecedented and quite extreme.”

He pointed out that anti-abortion groups were trying to amend the Mississippi constitution by setting up a state referendum, or ballot initiative, that would widen the definition of a person under the state’s bill of rights to include a foetus from the day of conception.

Some 70 organisations across America have come together to file testimonies, known as amicus briefs, in support of Gibbs that protest against her treatment on several levels. One says that to treat “as a murderer a girl who has experienced a stillbirth serves only to increase her suffering”.

Another, from a group of psychologists, laments the misunderstanding of addiction that lies behind the indictment. Gibbs did not take cocaine because she had a “depraved heart” or to “harm the foetus but to satisfy an acute psychological and physical need for that particular substance”, says the brief.

Perhaps the most persuasive argument put forward in the amicus briefs is that if such prosecutions were designed to protect the unborn child, then they would be utterly counter-productive: “Prosecuting women and girls for continuing [a pregnancy] to term despite a drug addiction encourages them to terminate wanted pregnancies to avoid criminal penalties. The state could not have intended this result when it adopted the homicide statute.”

Paltrow sees what is happening to Gibbs as a small taste of what would be unleashed were the constitutional right to an abortion ever overturned. “In Mississippi the use of the murder statute is creating a whole new legal standard that makes women accountable for the outcome of their pregnancies and threatens them with life imprisonment for murder.”

From FB: Dozens of CPS workers found falsifying records

There has to be nothing worse than losing your child or grandchild to the CPS system based upon the lies of a social worker who just doesn’t care about parental rights. It is utterly heartbreaking and devastating to  a family.

This is one of the most important jobs in a community and many communities are uncovering severe problems ending in the loss of a child or children.

There must be more oversight into these systems.  Parents should not be losing children due to the misbehavior of certain government workers, esp. when these workers at the same time, and the court system backing them is attempting to claim “absolute immunity.”

That is absolutely ludicrous.


By Andrea Ball and Eric Dexheimer / Published January 13, 2015

Houston CPS worker Michelle Robinson testifies during her trial at the Harris County Courthouse in October. Robinson was convicted of falsifying records, sentenced to a year probation and ordered to pay a $300 fine.Dave Rossman / For American-Statesman

When Child Protective Services received a complaint that a Harris County father had choked his teenage daughter, caseworker Michelle Robinson said she hurried to the house, conducted a thorough investigation, determined there was no merit to the allegations and closed the case.

Except she didn’t. In October, a Harris County jury convicted Robinson for falsifying CPS records, concluding that she’d lied when she said she’d interviewed key sources in the case and that she left the young girl in danger. Robinson was sentenced to a year of probation and ordered to pay a $300 fine.

It wasn’t an isolated case. Since 2009, at least 50 CPS workers have been caught lying to prosecutors, ignoring court orders, falsifying state records or obstructing law enforcement investigations, according to an American-Statesman review of state and court documents.

At least four former CPS employees are currently facing criminal charges for their alleged misconduct.

State officials insist those cases are rare. The employees accused of misconduct found by the Statesman represent a fraction of the 3,400 investigators and foster care workers in the agency.

But the agency cannot definitively say how often it happens since it does not comprehensively track the number of people who were fired for such offenses. It also doesn’t count the number of CPS employees who were punished, but not fired, for such misconduct, because that information is stored only in employees’ personnel files, said Patrick Crimmins, spokesman for the Department of Family and Protective Services.

Officials do have some sense of the scope of the problem because they receive reports of violations that have been confirmed by the Health and Human Services Commission’s Office of Inspector General, the commission’s in-house watchdog. But those numbers don’t include misconduct that CPS handles internally.

Through a series of open records requests, the American-Statesman identified numerous employees accused of wrongdoing by CPS or the inspector general who were referred to local law enforcement agencies. The majority of those referrals were for lying on government documents to cover up sloppy casework, with caseworkers often saying they had visited children they had not. In other cases, employees failed to cooperate with law enforcement, lied on their travel reimbursement forms or refused to comply with a judge’s orders.

I think I’ve been very clear. In cases where you falsify documents, that’s a firing offense.

John Specia, commissioner of the Department of Family and Protective Services

State officials say they take swift action when they find such misconduct. John Specia, commissioner of the Department of Family and Protective Services, said lying by caseworkers is never acceptable.

“I think I’ve been very clear,” he said. “In cases where you falsify documents, that’s a firing offense.”

Yet consequences doled out by CPS are inconsistent. Some employees have been fired, but others were not punished at all, the paper’s analysis showed.

Additionally, some supervisors who meted out discipline to troubled workers were later accused of their own misconduct, which some child welfare advocates said contributes to poor morale on the front lines.

Former CPS investigator Dimple Patel, now a research associate at advocacy group TexProtects, says she saw caseworkers falsify documents “a great deal” during her time at the agency.

“Once, a supervisor actually changed a worker’s documentation to state that the worker interviewed the children when they actually did not,” she said. “That supervisor was caught as the printed documents did not match up with the things changed in our computer database. … They both still work for the agency.”

When Specia arrived in 2012, the commissioner made it very clear that he has a zero tolerance policy for such behavior, and indeed it seemed to happen less frequently, Patel said. But records show it still happens.

Pressure to close cases

While each case is different, one clear theme emerges in the personnel and investigation records: An unmanageable workload and intense pressure to close cases compels workers to cut corners.


Austin American-Statesman

In 2009, Texas’ Legislature ordered Child Protective Services to publicly record every abuse- and neglect-related death in the state – but those reports have not been thoroughly analyzed to help identify patterns to prevent future deaths until now.

Caseworkers obviously don’t enter the profession with the intent to lie about the safety of children, said Randy Burton with Justice for Children. But pressure to close investigations “come hell or high water” has plagued caseworkers for years and can lead to wrongdoing, he said.

“I think that pressure has also directly resulted in sloppy casework and finding any excuse by caseworkers to close cases,” said Burton, whose Houston-based nonprofit advocates for child safety. “Once falsification of records begins, it tends to become a pattern. The only way to cover up a lie is with another lie.”

The consequences can be devastating. In April 2013, a Corsicana infant was seriously injured by his parents after a CPS investigator failed to check out a neglect allegation against the family but said that she had.

“When CPS investigators don’t investigate those cases and lie about it in their reports, not only are they breaking the law but they are putting the children they are supposed to protect in danger,” said Harris County Assistant District Attorney Adam Muldrow, who prosecuted Robinson.

Neither Robinson nor her attorney could be reached for comment.

Investigating investigators

Allegations of wrongdoing come to the agency in a number of ways. Officials can receive complaints from prosecutors, defense attorneys, teachers or parents. CPS supervisors also have discovered misdeeds through mistakes in travel reimbursement forms, which raised questions about whether caseworkers actually saw the children.

From there, the agency scrutinizes the allegations. It also sends complaints to the Office of Inspector General, which launches its own investigation. If evidence of potential criminal wrongdoing is discovered, the case is referred to the local district attorney’s office.

While the inspector general’s work hasn’t resulted in a slew of arrests, CPS sometimes relies upon those investigations as a justification to punish or fire its employees. In one case, the office determined that a CPS investigator was working as a small-town police chief on state time. CPS fired the investigator.

Some regional offices have been accused of misdeeds multiple times. In Smith County, which includes Tyler, prosecutor Tiffani Wickel has reported at least six employees for wrongdoing in the past two years. In one case, three workers were accused of forging a signature on a removal affidavit to the court because the investigator said she was out of the office when it was due. The investigator quit, and two other employees were disciplined.

Wickel did not respond to questions about whether the women were charged and prosecuted for their alleged misconduct.

Police detectives leave Abilene’s CPS office during an investigation into mishandling of a severe neglect case. Police said the investigation was difficult because of the department’s relationship with CPS.Nellie Doneva / Abilene Reporter-News

In another case, three Abilene-area CPS workers were accused of obstructing a criminal investigation into the 2012 death of Tamryn Klapheke, who starved to death days after a CPS caseworker closed the case without visiting the child.

In that situation, former CPS regional director Bit Whitaker signed off on disciplinary action against a supervisor accused of subpar work involving the child. Whitaker, however, was later accused of wrongdoing in the same case. She was put on paid leave and allowed to retire while the Abilene Police Department investigated allegations that she concealed documents and medical records involving Tamryn and her sisters.

In July, a Taylor County grand jury indicted Whitaker on charges of tampering with physical evidence, a third-degree felony. Sgt. Lynn Beard with the Abilene Police Department says more indictments could come against other CPS employees.

Bit Whitaker was indicted on charges of tampering with physical evidence.

“It was very difficult,” Beard said. “We had to investigate people we know.”

In 2013, three CPS workers in Greenville — Laura Ard, Natalie Ausbie-Reynolds and Rebekah Thonginh-Ross — were criminally charged with tampering with evidence in the death of teenager Alicia Moore, who police say was murdered by her uncle after CPS had been warned the girl was in danger. Prosecutors say the three workers falsified documents to justify closing the case without conducting a thorough investigation.

Thonginh-Ross told officials she did it because she was under pressure to close cases and that she was only following Ard’s orders, according to a report by an Office of Inspector General investigator. Ard then blamed her supervisor for issuing an edict to reduce the office’s backlog of investigations, the document states.

“Ard said that the ‘state office’ was aware of the manner in which CPS was working,” the inspector general report states. “Ard also said that as long as CPS employees are paid at their current levels that this is the standard of work that could be expected from them.”

Contact Andrea Ball at 512-912-2506.

from FB: Judges ordered to under go additional training in dealing with domestic abuse

Here is a great article on how little judges know about dealing with, and alleviating domestic abuse and how they need much more training.


Judges to undergo psychological domestic abuse training

domestic abuseImage copyrightLAURA DODSWORTH
Image captionSome campaigners said the new bill “could change Scotland forever”

Judges and sheriffs in Scotland are to receive special training ahead of a new bill to criminalise psychological domestic abuse.

The online training will focus on knowledge and understanding of the Domestic Abuse (Scotland) Act 2018, which comes into force on 1 April.

Participants will also complete a face-to-face domestic abuse course.

The interactive learning package was commissioned by the Judicial Institute for Scotland.

The face-to-face courses will be held in the Institute’s purpose-built judicial learning suite in Edinburgh.

Coercive control

Sheriff Alistair Duff, director of the Judicial Institute, said: “This approach allows us to provide all judicial office holders in Scotland with an early opportunity to engage with learning about the new offence.

“This is important given the complexities of the new concepts of coercive control and psychological abuse where there may be no physical violence.

“The resource will live on our award-winning virtual learning environment, the Judicial Hub, and will support judges before and during their first cases.”

The Domestic Abuse bill, which has wide backing, creates a specific offence of “abusive behaviour in relation to a partner or ex-partner”.

This includes psychological abuse such as coercive and controlling behaviour as well as violence.

Critics claimed it could be difficult to gather sufficient evidence.

Impact on children

However, MSPs voted by 118 to one to pass the legislation, with every member speaking in favour during the final debate.

The face-to-face courses will build on the online learning and focus on the practicalities and issues arising for the judiciary, from investigation and prosecution to conviction and sentencing.

A number of external contributors, including representatives from Scottish Women’s Aid and the Caledonian System, will be involved in the face-to-face training to assist judges in understanding how the new offence will be investigated and prosecuted.

The courses will also give participants an insight into the impact of the criminal behaviour on victims and children.

For several years newly-appointed sheriffs and summary sheriffs have received training specifically on the issue of domestic abuse as part of their mandatory induction course.

Specific training on domestic abuse issues have also been incorporated, as appropriate, into other training courses focusing on family cases, vulnerable witnesses, courtroom technology and sentencing.

From AC: What are case management orders all about?

A case management order is often a form issued by the judge that tells parties the following:


  1. a deadline for issuing written discovery (Interrogatories, Requests for Documents and Requests to Admit)
  2. A deadline by which all parties must take discovery of fact witnesses.
  3. In a med mal or pers. injury case, when Plaintiff has to send subpoenas to health care providers by
  4. When expert witnesses must be deposed by
  5. When expert witnesses must provide their expert reports by
  6. When dispositive motions must be filed by (motions to dismiss, summary judgment motions, judgments on the pleadings.)
  7. When discovery will close
  8. The next status date so the judge can inquire of how the case is proceeding and help with any issues or disputes.
  9.  Motions in liminie (pre trial motions)
  10.  Trial Briefs due date
  11. Dates for trial to start and no. of days expected.


These orders help a court keep organized during the pre trial phase.

From IR/Forbes; Beware of trust mills and estate planning scams

Beware Of These New Estate Planning Scams

Bad advice. High fees. Trust mills. There’s a lot to watch out for when you’re planning for the future, including several new estate planning scams.

“Death brings out the worst in people,” says Francine Kent, an estate appraiser from Sarasota, Fla.

Unscrupulous advisors prey on the elderly and their heirs with questionable legal advice, unnecessary bills, and the ever-present living trust come-ons.

One recent estate stands out in Kent’s mind: a grandfather who had agreed to cover his son-in-law’s college tuition. After the grandfather’s death, his heirs declined to pay for the son-in-law’s bills because he wasn’t named in the will.

“I have seen plenty of awful things,” she adds.

new estate planning scams


You need a plan (even if you think you don’t)

Think you don’t need a plan? Think again.

“We all have something that we value whether it is our final arrangements, a special needs child, a trinket that you want to pass along or whom we want to raise and care for our children in the event of an untimely death,” says Frank Moscardini, an attorney with the Chicago law firm Shimanovsky & Moscardini and a member of the LegalShield Legal Advisory Council. “A will or trust avoids confusion amongst your family by spelling out your wishes and providing a road map to help your love ones settle your affairs in a time of loss while creating the legacy you want to leave.”

Of course, you’re vulnerable to awful things at any time. But waiting can make things worse and it makes you more vulnerable to the new estate planning scams.

“The biggest issues relate more to taking advantage of an elderly person who may have reduced capacity,” explains Mark-John O’Nions, an estate law attorney. “They want to get the elderly person to sign over their property or sign a power of attorney in order to control the elderly person’s estate.”

And the most vulnerable of the group are senior citizens with no close relatives. Sometimes, these people are unable to understand they’re being scammed.

“They lack the capacity to even know it is happening,” says O’Nions.

All the more reason to contact an expert sooner than later.

“Estate planning covers many areas,” explains Patti Spencer, an estate lawyer. “It includes wills and trusts, taxation, real estate, business law, valuation, and so on.”

Many financial professionals have training in estate planning and can raise issues with you, make suggestions, or point out problems. These include accountants, financial planners, brokers, insurance agents, bankers, many of whom do an excellent job, she says. “On the other hand, the law provides that only lawyers can draft wills, trusts and other estate planning documents for you.”

new estate planning scams


Watch those fees!

Mark Charnet remembers the story of one client who found great legal advice before he passed away. Too bad his kids didn’t.

“He met with his estate planning attorney to have him prepare all of the traditional documents necessary for a person with a net worth of $2.5 million in New Jersey at the time,” says Charnet, the founder of American Prosperity Group in Pompton Plains, NJ. The lawyer prepared all the necessary documents, including a will, power of attorney, a revocable living trust, and a living will.

After he passed away, his heirs contacted another estate planning attorney.

“The attorney moved quickly, making them sign a contract to handle the estate for a cool $15,000 to start, with more hourly billing as the time supposedly involved, would accrue,” he recalls.

The thing is, none of that was necessary. Charnet says the father’s estate planning lawyer had done his job; the second attorney was unnecessary — a fact the second attorney knew.

Charnet’s assessment: Attorney number two was trying to take advantage of the family. “This attorney’s greed cost him many hundreds of thousands of dollars in any future referral business from me.”

Bad advice, legal or otherwise, is everywhere when you’re looking to the future. It’s one of the biggest new estate planning scams. Use a trusted lawyer and for goodness’ sake, tell your family what to expect when you leave this world. Otherwise, you could lose a lot of money to a predatory third party.

new estate planning scams


Beware of the trust mills, one of the new estate planning scams

In talking with estate planning experts, the one common warning is to be on the lookout for “trust mills.” The National Consumer Law Center describes these scammers as dishonest salespeople who prey on seniors’ fears that after their deaths, their life savings and assets will be stolen by the government or by predatory probate attorneys. Likewise, both the Federal Trade Commission and AARP have issued warnings about living trust promoters.

“Con artists who push living trusts on people do not want to help you plan for your future,” explains estate lawyer Melissa J. Breyer. “They’re trying to push you into forking over big bucks for their living trust kit. This is the first sign that your so-called estate planner is up to no good: they’re offering you a one-size-fits-all estate plan.

Experts also say you should beware of terms such as “Pure,” “Pure Equity” or “Constitutional” Trust — these can be even worse than the living trust scams.

“Don’t be taken in,” advises Spencer.

That’s a lot to be aware of. But don’t let it deter you from planning your own estate. Experts agree on two things — don’t take shortcuts and don’t wait. Steer clear of the new estate planning scams.

“Professional advice may someday be reduced to an algorithm,” says Michael Repak, a senior estate planner at regional broker-dealer Janney Montgomery Scott. “But we are not there yet.”

Christopher Elliott is the founder of Elliott Advocacy, a 501(c)(3) nonprofit organization that empowers consumers to solve their problems and helps those who can’t. He’s the author of numerous books on consumer advocacy and writes weekly columns for King Features Syndicate, USA Today, and the Washington Post. If you have a consumer problem you can’t solve, contact him directly through his advocacy website. You can also follow him on TwitterFacebook, and LinkedIn, or sign up for his daily newsletter.