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Stolen Lives
By Barry Yeoman, January-February 2004
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On June 20, 2002, APS sent a social worker named Dorothy Capers to the
Carrs' house to administer a mental-status exam. Inez received the highest
possible score, a 30 out of 30. Still, Capers later insisted in a court
document, "I found her to be very confused and unable to track her
money." The same day as Capers' mental-status exam, a
neuropsychologist administered a competency test. "Mrs. Carr appears to
suffer from a dementia syndrome," the psychologist, Glenn Hammel, later
wrote in his report. "She has the ability to maintain a superficial
façade of functionality. However, there are underlying
impairments." Hammel concluded that his subject was vulnerable to
"undue influence" and was "a suitable candidate for
conservatorship."
APS consulted its list of professional conservators—a collection of
accountants, social workers, and other professionals who solicit these
cases—and referred the Carr case to Debra Dolch, a veteran conservator with a
degree in accounting. Without meeting the Carrs, Dolch filed a petition in
court to take over making the couple's life decisions. On July 2, the case
went to Superior Court. The proceedings lasted an hour, after which a judge
named Dolch the temporary conservator over the Carrs, with the option of making
the appointment permanent later.
The experience Inez Carr had with the conservatorship system wasn't the
best, but it was by no means the worst, either. With overburdened court
systems, inconsistent monitoring, and a patchwork of uneven state laws, there
are many ways guardianships can go awry.
When it comes to outright abuse, many experts agree that relatives, who make
up the greatest number of guardians, are the most common offenders. Last June,
for example, Michigan prosecutors filed charges against 41-year-old Keith Allen
James, saying the Detroit man obtained guardianship over his mother, then ran
through at least $75,000 of her assets. "He and his wife essentially
cleared out his mother's checking and savings accounts," Assistant
Attorney General George Stevenson says. "She was left destitute and is
currently in a nursing home penniless." Attorney James Cull, who appeared
on behalf of James during the arraignment, says his former client in actuality
"rescued his mother from squalor."
Although relatives are the most common exploiters, the damage they cause
generally stays within the confines of their own families. By contrast, greedy
professional guardians can wreak havoc on a far larger scale. In many states,
there are few prerequisites for entering the guardianship business: no special
training, no licensing process, no enforceable professional standards. "I
could be a shoe salesman at a five-and-dime store yesterday and a professional
conservator or guardian today," says Melodie Scott, a Redlands,
California, conservator who has been certified by the National Guardianship
Foundation, the certification arm of the National Guardianship Association in
Tucson, Arizona. She's one of only 600 NGF-certified guardians in the
United States who each subscribes to a code of ethics and undergoes continuing
education. The vast majority of the estimated 600,000 Americans under
guardianship are receiving care from people without certification.
In this unregulated environment, the potential for abuse is ever-present. In
one infamous case, three officials from the Detroit-based Guardian Inc. were
sentenced to prison in 1999 and 2000 for directly participating in embezzlement
and fraud involving hundreds of clients. Among the misdeeds, Guardian Inc. sold
a client's house, located in a historic neighborhood, for $500—to the
mother of a company officer. It also collected excessive fees from its wards,
sometimes as high as 70 percent of their tiny Social Security checks.
Individuals possessing no real assets are often assigned by the courts to
public guardians, government employees who manage their care. In these cases,
fraud is rare. But as with many social service agencies, these offices are
often overburdened and unable to care properly for all their clients.
Lorraine Woodburn of Seattle, Washington, learned this firsthand while
visiting her grandmother's widowed sister, 88-year-old Pearl Inferrera, in
a Pasadena, California, nursing home. She had been placed there by the Los
Angeles Public Guardian's office. "The place stunk, and some of the
residents would try to sexually go after her," Woodburn recalls. "It
seemed more like a psychiatric ward." When Woodburn showed up, she says,
Inferrera "started crying and said, 'Get me out of here.' She felt
like she had been thrown into a jail, practically, and forgotten about."
(For their part, L.A. Public Guardian officials insist their client was not
ignored or treated badly at the nursing home, and once apprised by Woodburn of
the problems, they moved Inferrera as soon as possible to another
facility.)
Why do such problems continue to surface 17 years after the Associated Press
series and after reform efforts started in earnest in 50 states? The fact is
that in many places, despite tougher laws, monitoring of guardianships remains
lax. And although guardians and conservators are required to file reports with
the courts, those reports rarely get much, if any, scrutiny. Many jurisdictions
don't even know how many guardianships there are, much less how well
they're being carried out.
"You can have all the reports in the world, but if there is no
assurance that someone is reading them, it is not doing any good," says
Peter Santini, vice president of the National Guardianship Association.
"Someone can be falsifying a report if they do not think it's being
monitored—and for the ward, the very system that is supposed to be protecting
them ends up abusing them."
It didn't take long after their hearing for the Carrs to feel the
effects of the temporary conservatorship. "Within a matter of a
week," says Chris Jolivet, "my aunt and uncle pretty much lost
control of their finances and home and everything else." The Carrs'
bank account was closed and a new one opened—which the couple were not allowed
to control. Inez was placed on a personal allowance of $1,200 a month. Because
Inez felt uncomfortable having a white conservator (Dolch), the courts did
allow the Carrs to switch to an African American one—a licensed clinical social
worker named Marilyn Lewis—but that did nothing to restore Inez's
independence.
According to commonly accepted standards, conservators and guardians are
supposed to "carry out the wishes, preferences, and values of the
ward," says Sally Hurme, an AARP attorney who has been involved in reform
efforts since the 1980s. "They're not supposed to play God.
They're not supposed to impose their wishes or preferences on the
individual." But according to Inez Carr, that's precisely what Lewis
did when she took Carnell to an emergency room for an examination rather than
to the physician he had recently started seeing. (Lewis explains that she
sometimes has to violate her clients' wishes in order to protect clients.
She says that she was unimpressed with the attention Carnell was receiving from
his doctor at the time, who had been recommended by the Jolivets.)
To fight the conservatorship, Inez tried to hire an attorney, but the court
refused to recognize him. Instead, it appointed San Francisco attorney Anne
Marie Paolini-Mori, who argued for keeping Inez under conservatorship.
"Although she is very lucid and articulate in the context of conversation,
Mrs. Carr exhibits her shortcomings in the way she functions in her everyday
life—how she maintains her house and how she manages her paperwork,"
Paolini-Mori wrote in a report to the court.
Because Inez was not allowed to hire her own lawyer, the Jolivets arranged a
new evaluation by Abraham Nievod, a neuropsychologist who serves as a
consultant for the federal government and lectures extensively on elder abuse
and undue influence. Nievod met with Inez for 10 hours over four days in
December 2002 and found her memory, intelligence, and learning abilities all to
be within normal range. He found her verbal ability to be "significantly
above average." Based on her test scores, he described her as "a
person of unusually good judgment." According to his report, "Ms.
Carr is competent and has the capacity to make meaningful decisions [about] her
personal needs [and] the management of her financial resources.... Ms. Carr is
competent and has the ability to resist fraud and/or undue influence.... Ms.
Carr does not need a Conservator."
Nievod wasn't surprised to learn that the courts had assigned Inez a
conservator, despite her good mental and physical health. "The court is
trying to err on the side of protecting people and being more open to granting
conservatorships in questionable cases," he says. "The problem is
that competent people can get included."
Lewis believes Nievod's evaluation was tainted by the fact that the
Jolivets commissioned it. "Some psychologists will tell you just what you
want to hear," she says. Livingston maintains that the evaluation
strengthened the case against the conservatorship.
Last winter, the court sent the case to mediation, and after eight hours of
calm horse trading, the parties reached a compromise agreement: As of last
April, Inez was no longer under conservatorship. But she was not allowed to
take over as her husband's conservator. Lewis remained in that position
until October, when she resigned and a new conservator was assigned. Carnell
continues to live at home, receiving visits from nurses and personal care
aides. In the compromise, Inez regained only partial control over the
couple's assets. Instead, she shares power with a private money manager,
who must approve all major financial decisions. (Inez chose a woman named Dovie
White from the court's list, and the two get along well.) She's also
banned from changing the family trust without court permission.
To some, the termination of Inez's conservatorship is proof that the
system works. "The good news is that the court made every effort to
protect her," Debra Dolch says. But Inez hardly feels like a winner. The
bills have started coming in—not just for Lewis' services, but also for
various lawyers' fees. In June, for example, Lewis' attorney, who
charges $225 an hour, billed the Carrs for more than $21,000 worth of legal
work: drafting court documents, consulting with Lewis, and reviewing the
various psychological evaluations, all with an eye toward keeping the Carrs
under conservatorship. "They're draining us dry," Inez says.
"Here we worked and saved this money, and then someone comes in and takes
it away from you."
In late November 2001—just a few months before the Carrs' troubles
began—elder-law specialists from the National Academy of Elder Law Attorneys,
the American Bar Association, the National College of Probate Judges, AARP, and
other groups met in St. Petersburg, Florida, to take a hard look at what ails
the nation's guardianship system. Over three days, they developed 15 pages
of recommended changes in state laws and courtroom practices, including
training and licensing for professional guardians; detailed, audited annual
reports on each ward; and laws requiring lawyers to "zealously"
advocate the wishes of their clients.
Meanwhile, reforms are being undertaken across the country. In 2002, at
least 10 states changed their guardianship laws, including Kansas, which
completely revamped its system. And last February, the U.S. Senate's
Special Committee on Aging held a hearing on potential abuses of the
guardianship system. Witnesses recounted stories of guardianships gone awry and
suggested a need for total overhaul.
Senator Larry Craig (R-Idaho), who chairs the committee, says the hearing
was the first step in his own crusade to reform guardianship. Though the issue
is mostly a state one, he says, the federal government can weigh in with model
legislation and funding for research. And, he says, it must weigh in—before the
baby boomers hit retirement age in full force; otherwise many of them could
face the same ordeal that Inez Carr did. "This is something that ought not
to be taken lightly," Craig says. "Seniors have become victims of the
legal process. When you become old, you should not, by the action of a court,
automatically lose your rights just because some family member or impersonal
administrator calls you incompetent."
For Inez, those reforms could not come soon enough. "I wouldn't
want anybody else to go through this," she says. "This is too much.
They're supposed to be protecting you. But you're not protected at
all."
Barry Yeoman last reported on the death-with-dignity movement in "Colleen's Choice"
for the March-April 2003 issue of AARP The Magazine.
Additional reporting by Tim Dickinson.
Now, learn more about guardianship with AARP.org's
guardianship fact sheet and resource list.
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