THE BLOG
08/15/2012 07:05 pm ET | Updated Oct 15, 2012

Conservatorships: Beware!

Over the past several years, there have been many newspaper articles and television stories on the increasing abuse of elders who have been placed under conservatorships. In July 2012, the San Jose Mercury News published three-part series on how private guardians have stolen millions of dollars from their charges. In November of 2005, the Los Angeles Times also published an in-depth story on conservatorships by private fiduciaries. Even though these exposes clearly gave the public a warning, the problem continues to this day.

Prior to modern medicine, few people lived long lives as they do today. Those that did live a longer life were usually provided for by family members. With societal changes and the fragmentation of the family, some people live too far from family members or have no family members to care for them. Many of these elderly people are ending up in acute hospitals for one reason or another... a broken hip, pneumonia, heart disease, etc. In some cases, the elderly person may have a family member nearby who holds the Durable Power of Attorney, but in too many cases, the person holding that power does not live in the area and is not easily available. This leaves the elderly person vulnerable for a conservatorship.

Once a conservatorship is in place, the ward can no longer direct anything about their life, such as where they will live, how they will spend their money, who they can socialize with, and if there is abuse, court appointed attorneys are reluctant to file any actions against the conservator, especially if the conservator is a public guardian. When this occurs, the ward is deprived of civil liberties.

Guardians and the courts are supposed to do what is best for the conservatee and what the conservatee wishes. However, in too many cases, this is not what transpires. What happens often is decisions are made in the best interest of the conservator instead of what is best for the conservatee and the overall condition of the conservatee, both financially and personally, begins to deteriorate. FATE's experience has shown that most people placed under conservatorships are not allowed to remain in their homes or keep their possessions and within a short period of time are placed in some type of institutionalized care, such as a nursing home. The conservatee deteriorates rapidly because of not being in familiar surroundings and die within a short period of time. To make matters worse, the conservator is usually absent and does not visit or monitor the care of the person once in institutionalized care. This is particularly true of public guardians.

My first encounter of conservatorships was in 1986 when I received a phone call from Charlie Fish who I had helped after his brother died under mysterious circumstances in a nursing home in Northern California. Charlie began to visit other patients in this facility and befriended those patients who did not have family or friends to watch over them. This is how he met Isabel Miller, who was blind, abandoned by a family member and placed in a nursing home under a conservatorship. Her tragic story was the subject of an Associated Press article that was published nationwide. Then in 1987, Charlie and I went to New York and Geraldo Rivera aired what happened to her in this nursing home while under conservatorship, which was the first nursing home abuse case aired on national television. The story was so compelling and the events so true, even today, that I put the video on YouTube. It can be viewed on the FATE web site at www.4fate.org.

Isabel was a very beautiful and interesting woman. In her youth, she was the model for Pears soap and also did some acting in Hollywood. By the early 1980s she was blind, still had her mind, living in her own home with few medical problems. She had been placed in this facility by a granddaughter and subsequently conserved by the Placer County Public Guardian. Charlie would visit Isabel and she would tell him that she had money and personal belongings that she never saw again after being placed in this nursing home. She alleged that the staff was mean to her and gave her pills that made her dizzy and unable to walk. Charlie began to tape record his conversations with her. When Charlie told me of her, I went to the facility to meet her and was denied a visit as the public guardian had to approve my visit. It took me four months after numerous visits to the public guardian's office, phone calls to the head of the Health Department and the district attorney's office before I was allowed to see her. When I finally saw her, she was so happy to have me visit and also to have Charlie by her side as he was also barred from seeing her for months. A couple of weeks later, Isabel died and pictures of her body show that she was riddled with bed sores, which caused her death in a very ugly and painful way. Where was her conservator?

Since Isabel, FATE has documented over 300 cases of conservatorship abuses all over the country by both public guardians and private fiduciaries. I also was a guest on the Sally Jessie Raphel Show along with Scott Harshberger, who at the time was the Attorney General of the State of Massachusetts. At the time, he was touted as the most aggressive Attorney General in the country prosecuting perpetrators of elder abuse. His segment focused on fiduciary and physical abuses by family members. This type of abuse by family members happens more than people realize. Mr. Harshberger brought an elderly victim of abuse onto the program; however, the man was reluctant to talk bad about his son, even though his son had been arrested for abusing him. Conservatorships happen over these types of abuses, but also they take place when family members start fighting over who is going to be in control of the care and money of mom and dad when they can no longer care for themselves. A suggestion is made that a third-party, such as a private or public guardian, should take over the control in order to keep peace within the family. Keeping in mind that FATE only gets the bad calls, our experience is that too many private and/or public guardians end up misappropriating the estate, guardians and their attorneys end up with all the money and the children end up without their inheritance and, worse of all, the expressed wishes of the person conserved are violated.

After the L.A. Times expose on Guardianships, California established legislation requiring all private fiduciaries to be licensing by the newly-formed California Fiduciary Bureau. As of this date, I believe California is the only state that requires the licensing of private fiduciaries and also provides a means of filing a complaint when a private fiduciary breaches his/her duties. This is only a beginning in an attempt to protect vulnerable citizens who cannot properly care for themselves. The best one can do while still competent, is to execute a will and trust appointing a member of the family. However, if that is not possible, then it should be a person you most trust to handle your finances and your care instead of a third-party you do not know that will make life decisions for you. Although this seems like the best way and surely the courts will abide by your decision, it is not always the case. I have seen courts place guardians in charge of vulnerable adults who did have a will and a power of attorney totally take over against what the person's wishes clearly stated in a legal document. How can this happen? The probate courts are sanctioning it. Hopefully, with more exposes by the major news networks, the public will become educated on this... yet another national disgrace of abuse of our most vulnerable citizens.