Judicially Sanctioned Financial Exploitation
of
Vulnerable Elderly and Disabled Citizens
by Non-Family Court-Appointed Fiduciaries
The recent MetLife study[1] on the comprehensive subject of elder abuse once again focuses on theft by family members rather than by court-appointed fiduciaries[2] who too freely liquidate entire estates by means of exorbitant or fraudulent billings and proceedings.
The cold reality is that keeping the focus and the spotlight on families[3] enables the continued milking of the helpless by “professionals” appointed by the courts to protect them. How can MetLife and others almost completely overlook this entire category of elder abuse? How can Congress continue to ignore it, especially after GAO’s[4] September 2010 report[5] clearly substantiating this growing problem?
“Most of the allegations we identified involved financial exploitation and misappropriation of assets. Specifically, the allegations point to guardians taking advantage of wards by engaging in schemes that financially benefit the guardian but are financially detrimental to the ward under their care. Also, the allegations underscore that the victim’s family members often lose their inheritance or are excluded by the guardian from decisions affecting their relative’s care.”
NASGA has addressed guardianship[6] abuse by fiduciaries in three previous white papers to Congress and the White House[7]; yet, when any legislator has come forward to champion the cause of guardianship reform and propose legislation, the focus of said reform continues to concentrate on family members as guardians and is limited to suggestions of grants for certification, training, background checks – none of which addresses the growing threat of professional for-profit and “not-for-profit” fiduciaries freely bleeding their victims into indigence and onto Medicaid, at the expense of the currently unsuspecting taxpayers.
We reiterate: while training and certification may help courts operate more efficiently and will certainly be profitable for those providing the training and certification, neither even begins to address court-sanctioned exploitation and abuse (financial, emotional, and/or physical) of guardianship wards – not by family members appointed as guardians, but by nonfamily fiduciaries – “persons of trust,” including attorneys. We continue to ask: How are thieves “trained” not to steal other than by enforcing existing law and sending them to jail?
Who is going to speak up and protect vulnerable persons from potential court-sanctioned plunder in 50 different states with 50 different laws? Several states have recognized the need for and have begun to take baby steps toward reform, but victims have been waiting too long already!
In Elmira, NY, NASGA member Sara Harvey has been battling her husband’s guardian[8] in state court for six years, trying to protect her disabled husband from abuse and neglect.[9] Her efforts have been in vain and very costly. Sadly, Gary Harvey, a Veteran, remains virtually isolated,[10] languishing behind closed doors[11] at St. Joseph’s Hospital since 2009, when he could and should be spending his final days in the familiar surroundings and comfort of his own home, under his wife’s care.
Allowing Gary Harvey to go home would place him in the least restrictive environment, an objective of positive guardianship. Additionally, taxpayers would save approximately $20,000 a month or more, in the cost of his hospital room alone.
Mrs. Harvey has turned everywhere she could for help, including to her elected representatives. The responses all follow the same theme and pointed Mrs. Harvey back to the very system she claims is abusing her husband. Claims of abuse and neglect, they tell her, can only be filed by the guardian or the guardian ad litem.
Is it a surprise that the guardian sees nothing wrong with isolating Gary Harvey from family and friends? Is it a surprise that the guardian ad litem, whose first loyalty and duty is to the court instead of the ward, Gary Harvey, stands with the guardian?
With all the court-appointed “protectors” connected in some way to the same law firm, including the judge, who truly is looking out for Gary Harvey’s best interest other than his wife who has been at his side since his debilitating accident?
When the system is as broken as this case illustrates, who will speak up for those without a legal voice who are trapped and suffering at the system’s hands?
Our second Open Letter to Congress[12] highlighted the non-emergency “emergency” aspects of NASGA member musician/songwriter John Daniel (Danny) Tate’s case[13] in Nashville, TN. This poster case exemplifies how the practice of conserving a ward into indigence – contrary to the intent of the protective statutes – has become accepted, perhaps even anticipated, by judges who should be the last line of defense against fiduciaries who bleed estates dry using a pen as their weapon of choice. The Tate case is also a case for “Ripley’s Believe It or Not!”
♦ Four days after Tate’s estranged older brother filed a petition for conservatorship[14] (without notice to Tate), claiming a drug-related “emergency” which did not exist, Probate Judge Randy Kennedy ordered a “temporary” conservatorship, naming Tate’s brother as his “temporary” conservator,[15] in direct violation of TN statute, 34-1-108.[16]
The law requires a conservatorship operate in the “best interest”[17] of a ward, but Tate’s temporary conservator diverted all of Tate’s postal and electronic mail; dissipated Tate’s approximate $2.5 million in assets, interrupted his career and plunged him into debt. During this time, Tate’s temporary conservator stopped Tate’s child support payments,[18] homeowner’s insurance,[19] and health insurance, while paying his own lawyer regularly with Tate’s funds. When Tate’s cash assets ran out, his temporary conservator’s lawyer even attempted to put a lien on Tate’s flood-damaged home!
♦ On 5/24/10, thanks to Facebook, friends wearing “Free Danny Tate” tee-shirts showed up for his “final” court hearing,[20] Judge Kennedy “released” Tate from his two-and-a half-year “temporary” conservatorship. At that hearing, when Tate complained of his temporary conservator’s breach of fiduciary duty in open court, court watchers were stunned as Judge Randy Kennedy responded by admonishing Tate for not thanking his conservator “for all he’s done for you.”
The conservatorship had picked Tate’s financial bones clean; plunged him into not only indigence but snowballing debt as well; caused him to be sued by his ex-wife for child support payments, by his own attorney for ongoing fees; and left him without home and health insurance. Tate had no choice but to appeal the conservatorship from its inception, but he was indigent and could not afford to hire an appellate attorney.
Now to the “believe it or not”: Judge Kennedy, the same judge who refused to listen to Tate’s complaints that the conservatorship was devouring his estate and harming him and his young daughters financially, then turned around and approved Tate’s application for pauper status so Tate could file his appeal. From one side of his mouth, Judge Kennedy insisted that the conservatorship “protected” Tate and his estate. From the other side, Judge Kennedy approved Tate’s application for pauper status. Did the conservatorship protect or plunder? The figures don’t lie; Tate’s $2.5 mil estate disappeared under Judge Kennedy’s watch.
What did the conservatorship accomplish other than feed the lawyers? How could Judge Kennedy allow Tate’s temporary conservator and the lawyers to devour Tate’s estate and plunge him into indigence in the guise of protection and under color of law?
The injustice Tate has suffered – and continues to suffer – should be an urgent wake-up call to every American, especially Boomers, and certainly to members of Congress in a coming election year. Who is going to protect wards of the state when they are permanently harmed by the very system claiming to be protecting them? When will it end?
Where are we now, after more than 20 years of study and reports? Clearly, the answer is Americans are in more danger than ever before; and Congress is talking about grants for training and certification and looking the other way, as do the States, while permitting financial exploitation and criminal conversion to continue with little or no accountability.
ONLY CONGRESS CAN MAKE GOOD THE FORGOTTEN PROMISE of 42 U.S.C. 3001 of The Public Health and Welfare Law: “(6) Retirement in health, honor, dignity – after years of contribution to the economy;” and “(10) Freedom, independence, and the free exercise of individual initiative in planning and managing their own lives, full participation in the planning and operation of community-based services and programs provided for their benefit and protection against abuse, neglect, and exploitation.”
Please do not wait until it happens to you or a member of your family to step up and take action. Address this critical need now. Americans are suffering now; they need help now.
NASGA began seeking federal intervention in 2009. With Congress well aware of the aging of the Baby Boomers, and still sitting on the information, we are now shifting our focus to that very group of potential victims and the taxpayers who will have to pick up their Medicaid tab when the fiduciaries are finished with their feeding frenzy. As part of our mission, we will educate the taxpaying Boomers about how these laws are being misused and abused and no longer work in the “best interest” of the people.[21]
Forewarned is forearmed!
It is our continued hope and prayer on behalf of those presently entrapped in unlawful and abusive guardianships and conservatorships and the huge potential victims group nationwide, that Congress will step up and forcefully declare that open season on vulnerable persons (be they elderly, disabled, or children) has ended!
We respectfully ask for your support.
/s/ Elaine Renoire
ELAINE RENOIRE, President
___________________
1 “Elder Financial Abuse: Crimes of Occasion, Desperation, and Predation Against America’s Elders,” June 2011,
http://www.metlife.com/mmi/research/elder-financial-abuse.html
2 Nonfamily members, court-appointed guardians and attorneys
3 NASGA acknowledges that sadly, and perhaps more than ever due to the current economic conditions, some families do financially exploit and abuse their vulnerable elderly and/or disabled through misuse of powers of attorney and other financial controls or even in guardianships and conservatorships, while fiduciary abuse has become an actual industry. We applaud media’s growing attention to the general category of “elder abuse” and increasing response of various state legislators.
4 Government Accountability Office
5 “Guardianships – Cases of Financial Exploitation, Neglect, and Abuse of Seniors,” September 2010, http://www.gao.gov/new.items/d101046.pdf
6 ”Guardianship,” as used here, is meant to include conservatorship.
7 “Reform of Unlawful and Abusive Guardianships and Conservatorships and Abuse by Courts and Fiduciaries” http://www.AnOpenLetterToCongress.info; “A Review of Unlawful ‘Emergency’ Guardianships,” http://www.AnOpenLetterToCongress-2.info; and
“The Fleecing of Medicaid and the Taxpayers,” http://www.AnOpenLetterToCongress-3.info
8 Chemung County Department of Social Services, Case number: Index 2006-1578/RJI No. 2006-0275M
9 See http://www.HelpBringGaryHome.com
10 Sara Harvey is permitted a mere six hours visitation per week – under guard. Her husband’s guardian refused to permit visits by friends.
11 Mr. Harvey is unable to ring his call bell should he have an emergency and need help.
12 “A Review of Unlawful ‘Emergency’ Guardianships,” http://www.AnOpenLetterToCongress-2.info
13 Davidson County Circuit Court, Docket # 07P1654
14 Tate’s brother was already in possession of a durable power of attorney (DPoA) which would obviate the need for a conservatorship, but neither he nor his lawyer brought the DPoA to the judge’s attention. Tate claims the DPoA was procured by fraud, was reproduced and altered and would not permit access to all of Tate’s significant assets. While acting in his capacity of DPoA, Tate’s brother wrote a $25,000 “retainer” check to his lawyer from Tate’s account, thereby launching the events that led to Tate’s loss of control of his life.
15 See YouTube videos of the ex-parte so called “emergency” hearing of 10/23/2007: http://www.youtube.com/watch?v=BUtwQ3-UtPg and http://www.youtube.com/watch?v=vf3FGv9mFXg
16 TN statute 34-1-108 requires notice be given to the respondent for an emergency hearing to be held.
17 “Best interests” is the general language of “protective” statutes.
18 Tate has two young daughters.
19 Tate only learned that his insurance had been allowed to lapse when he filed a claim after his home and much of his remaining musical equipment were destroyed in the 2010 Nashville, TN flooding.
20 Kennedy had been told by a higher court to issue a final order. His earlier failure to do so had prevented appeal.
21 A detailed review of the events in the case can be seen at http://nasga-stopguardianabuse.blogspot.com/2010/11/impeachment-is-not-good-enough.html
22 http://www.BoomersBewareOfGuardianshipAbuse.info and http://www.BoomersBewareOfConservatorshipAbuse.info
* * *
ABOUT NASGA:
NASGA is a civil rights, public benefit nonprofit organization whose members are victims of unlawful and abusive guardianships and conservatorships seeking reform on a national basis.
As we have stated in all of our writings to Congress, the sole purpose of guardianship and conservatorship is to GUARD incompetent wards of the state to keep them from harming themselves or others; CONSERVE their assets; and PROTECT the public from the ward becoming a public charge.
Our mission is:
(1) To engage in outreach, education and advocacy regarding unlawful and abusive guardianship and/or conservatorship proceedings in state courts across the country, and the growing violations of due process, civil and human rights.
(2) To end the unnecessary and growing Medicaid burden resulting from court-appointed fiduciaries’ use of their wards’ assets for self-profit and unjust enrichment. Instead of their assets being conserved, the wards are forced into indigence and ultimately relegated to Medicaid services, contrary to law and at the expense of the unwary taxpayer.
(3) To promote the safety and wellbeing of vulnerable persons subject to damages by unlawful and abusive proceedings; to be a support organization for victims and their families; and to work towards ultimate total reform.
This is our fourth request for Congressional intervention.