Wills, Trusts & Estates Prof Blog

Elderly Woman Prompts Guardianship Reform After Spending $100,000 to Prove Her Competence

Sophie Paulos, 91, spent three months and $100,000 trying to protect her independence.

The process began when two of her daughters suspected the third daughter of taking advantage of Paulos while her health was deteriorating.  After an investigation by the Adult Protective Services, Paulos had to pay $30,000 for a court-appointed guardian ad litem she never wanted.  She then hired her own attorney to fight the guardianship process and paid over $70,000 for this second lawyer and related legal expenses.

These outrageous costs have prompted proposed measures to reform the guardianship system such as shortening time periods for which to hold hearings and forcing those that initiate guardianship proceedings to sign affadavits.  Although these measures have gained support from organizations like AARP, judges and lawyers across Texas see any changes to the current system as unnecessary roadblocks.

See Andrea Ball, Woman’s Costly Court Battle Prompts Call for Reform of Guardianship System, Austin American-Statesman, May 12, 2013.

Adoption at Retirement

Recently, New York Times reported there is a growing number of retirees that have decided instead of relaxing during retirement to become parents. More specifically, retired people have turned to adoption. For some retirees this is their second go around at parenting, but for others this is their first time. Some of the retired individuals reason they will be successful parents because of their life experiences and accumulated knowledge. The adoptions are not only for infants,but also include adults. 

See Morgan Yuan, Growing Trend Sees Older Adults Choosing Parenthood At Retirement, Wealth Strategies Journal, May 15, 2013.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Public Guardian Investigated For Excessive Billing

Jeanan Mills Stuart, a Davidson County public guardian, is currently being investigated for billing her wards excessively. Her duty as a public guardian is to take over the financial affairs of people who are mentally or physically handicapped. Stuart has billed for more than 24 hours in one day and has gained over $270,000 dollars for doing small tasks like checking emails.The inquiry began when Stuart was charging over $200 an hour for doing non legal tasks. Experts have asserted that Stuart's billing for non legal tasks is not typical. A judge is currently evaluating Stuart's billing practices.

See Walter F. Roche Jr., Davidson County Public Guardian's Bills Exceed $1.8 Million ,The Tennessean, May 11, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

The Convention on the Right of Those With Mental Disabilities and the Future of Guardianship Law

In many nations around the world, guardianship proceedings equal to "civil death" because they often completely strip the rights of the person being placed under a guardianship. Unfortunately, in many nations, there are no procedural safeguards to protect those who are being placed within guardianships. That could change soon. Recently, the United Nation's ratified the Convention on the Rights of Persons with Disabilities (CRPD), which could change the scope of the international human rights law with as it applies to those with disabilities. 

See Michael Perlin, “Striking for the Guardians and Protectors of the Mind”: The Convention on the Rights of Persons with Mental Disabilities and the Future of Guardianship Law, 117 Penn St. L. Rev. 1159 (2013).

Special thanks to Katherine Pearson (Professor of Law, Penn State University - The Dickinson School of Law) for bringing this article to my attention.

Supported Decision-Making

The normal process when it comes to decision making for incapacitated people is to place them under the supervision of a guardian. The guardian makes decisions on their behalf of the person placed under their guardianship. Now, an alternative to the traditional guardianship system has emerged. The new system, known as supported-decision making, "empowers individuals with cognitive challenges by ensuring that they are the ultimate decision-maker but are provided support from one or more others, giving them the assistance they need to make decisions for themselves." Some believe that the supported-decision making process will help promote self-determination of people with cognitive disabilities. 

See Nina A. Kohn, Jeremy A. Blumenthal & Amy T. Campbell, Supported Decision-Making: A Viable Alternative To Guardianship?, 117 Penn. St. L. Rev. 1111 (2013).

Special thanks to Katherine Pearson (Professor of Law, Penn State University - The Dickinson School of Law) for bringing this article to my attention.

Nephew Granted $9,000 a Month to Care for Michael Jackson’s Children

As I have previously discussed, T.J. Jackson has been granted $9,000 a month to provide care for the late pop star’s three children, Prince, Paris, and Blanket.

In July 2012, the children’s grandmother “allegedly went missing and hadn’t been in contact with her grandchildren for days.”  After this incident, T.J., the son of Tito Jackson, was appointed co-guardian and now shares custody of the children with Katherine.  This change in guardianship came amidst a family dispute in which five of Michael’s siblings claimed the executors of Michael’s estate were misleading Katherine.

See T.J. Jackson Granted 9k a Month for Co-guardianship, Contact Music, Apr. 19, 2013.

Supreme Court of Pennsylvania Appoints Elder Law Task Force

The highest court in Pennsylvania has appointed a new task force charged with studying the growing problem of guardianship abuse and neglect in Pennsylvania. The 38 member task force, composed of judges, lawyers, and other experts, is suppose to develop solutions for these large problems. The task force is organized into three subcommittees each focused on their own set of problems related to elder law and guardianships. One will be "devoted to appointment and qualifications of guardians and attorneys, a second on guardianship monitoring and data collection, and a third on elder abuse and powers of attorney." The task force will work on this problem for at least a year. The task force recently met this past week to begin their work.

See Neil E. Hendershot, PA Supreme Court Appoint New Elder Law Task Force, PA Elder, Estate & Fiduciary Law Blog, Apr. 18, 2013.

Sex Change Did Not Dissolve Marriage

A woman from Michigan, Devon Pearl Burnett, married her husband in 1984. She lived with her husband until 2005, two years after he decided to undergo a gender reassignment surgery and become a woman. At the time Devon was suffering from dementia and so her children filed for divorce. Her husband, now named Bobbie Eliza Burnett, challenged the authority of their children to file for divorce on behalf of their mother. The children was the conservators of their mother who was incapacitated. 

The Michigan Court of Appeals affirmed the ruling of the lower court in Burnett v. Burnett. First, the court held that the conservator did have the authority to act on behalf of their ward. When that argument failed, Bobbie tried to argue that the courts lacked jurisdiction to hear the case because of Michigan's same-sex marriage laws. In Michigan, a marriage is defined as being between a man and woman; therefore, their marriage did not exist and by granting the divorce the court would inadvertently recognize the validity of the same-sex marriage. The courts rejected her arguments reasoning that the couple entered into a valid marriage contract before the sex change operation and that one spouse's unilateral decision to change gender could not end the marriage without the court's involvement.

See Jeff D. Gorman, Sex Change Didn't 'Magically Dissolve' Marriage, Courthouse News, Apr. 19, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

Judge In Zsa Zsa Gabor Extends Conservatorship

As I have previously discussed, Zsa Zsa Gabor's daughter filed a conservatorship petition to gain control over her mother's assets after she accused Gabor's husband, Frederic von Anhalt, of mishandling the estate. A judge would grant Mr. von Anhalt the conservatorship but that it would have limitations and he would have to report to Gabor's daughter. Now, it appears that Judge Reva Goetz has issued a one-page order that would extend the Frederic von Anhalt's conservatorship over Zsa Zsa Gabor and her assets. The judge originally appointed von Anhalt to be Gabor's conservator this past summer. The new order would extend the conservatorship until August 21st.

See City News Service, Judge Extends Zsa Zsa Gabor Deal, MyDesert.com, Feb. 24, 2013.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention. 

TJ Jackson Has Petitioned Michael Jackson's Estate For Reasonable Compensation

As I have previously discussed, TJ Jackson was named to be co-guardian to Michael Jackson's three children. Now, it appears that TJ and the executors of Michael Jackson's estate are asking a federal judge to provide TJ "a reasonable amount of money to keep the ship afloat" so to speak. TJ claims that without some help he cannot continue to be the surrogate parent of Jackson's children. In the petition, the executors claim that TJ has shown great devotion to the children and spends upwards of 40 hours a week caring for them. The petition also claims that this has been difficult for TJ considering that he has three children of his own. The petition concluded that even though TJ was appointed to be the children's co-guardian this past July, he has received no compensation for his services. The executors ask that TJ be granted $9,000 a month, retroactively applied from July to the present. 

See TJ Jackson -- He Needs Cash To Care For Michael's Kids, TMZ, Feb. 6, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

Guardianship Changes May Be Working In Nebraska

Chief Justice Michael Heavican, the top judge in Nebraska, stated that the recent changes in the oversight of guardians and conservators in Nebraska "has exposed cases of theft and misuse of funds" and provided more protection for those under conservators. Even with this success, some guardians have decried that new requirements are too strict for spouses who are guardians. 

See Martha Stoddard, Nebraska Chief Justice: Guardianship, Juvenile Probation Initiatives Show Success, Ohama.com, Jan. 18, 2013.

Terri Schiavo's Brother Intervenes in Guardianship Case

Mr. Gary Harvey was in a debilitating home accident that left him with a brain injury. Since 2006, Mrs. Sara Harvey has been in a battle with the state in an effort to be appointed his guardian. Ultimately, the State of New York appointed the Chemung County Department of Social Services to be his guardian. The fight came to ahead in 2009, when the hospital that Mr. Harvey was residing at decided to remove him from life-sustaining treatment. Thankfully for Mr. Harvey, the court presiding over this case denied the request.

Now, Bobby Schindler, the brother of Terri Schiavo and the Executive Director of the Terri Schiavo Life & Hope Network, has attempted to intervene on behalf Mr. Harvey. Mr. Schindler based his petition on the fact that Mr. Harvey has been denied an attempt to receive care that could improve his condition. 

See Terri Schiavo Brother Attempts Intervention In Harvey Guardianship Case (NY), Estate of Denial, Jan. 5, 2013.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Michigan Woman Charged With Embezzling Money From Her Father

Michigan Attorney General Bill Schuette has charged Renee Bullock, a resident of Redford, Michigan, will one count of embezzling money from her elderly father. In 2010, after Bullock's father was admitted to a nursing home, she was appointed as the guardian of her father and was given a power of attorney over his finances. From this time to the present, Attorney General Schuette alleged that Bullock embezzled more than $140,000 of her father's money for her own personal expenses. In course of this time, Bullock failed to pay the nursing home. Instead, she chose to lease "a Cadillac CTS and a Chevrolet Tahoe" with her father's funds. After further investigation, it was discovered that Bullock used her father's funds at "casinos, nail and tanning salons, numerous restaurant and retail establishments." 

In response to this discovery, a court has removed Bullock from her role as the guardian of her father. Bullock met her $10,000 bond and is expected to be in court on December 6, 2012 for her preliminary exam.

See Redford Township Woman Charged With Embezzling Money From Elderly Father In Nursing Home, ClickOnDetriot, Dec. 5, 2012.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

Guardianship in Virginia

In Virginia, judges usually appoint a law firm when it places an elderly or incapacitated person in a guardianship and that person has no one else to take care of them. This happened to Samuel and Jeanne Drakulich, who were placed in the guardianship of Needham, Mitnick and Pollack (NMP). The major problem with this model is that it can be quite expensive. So much so, that the Drakulich's and NMP are in a dispute turned lawsuit over "tens of thousands of dollars in billing" that NMP charged the couple to take care of them. According to the Washington Post, "NMP billed the Drakuliches $6,300 to prepare $1,800 worth of household items for auction, another ward $2,300 to sell a $4,000 car and a third person in their care $4,200 to recover $5,300 worth of investments." For daily expenses, NMP charged between $85 to $125 an hour. The Drakulichs argue that the amount of money that they are being charged is too much. NMP, however, asserts that the amount that the couple is being charged is their normal professional rate.

The problem for the Drakulichs stems from the fact that there is no cap or guidelines on the amount that NMP can charge. The only guideline is that fiduciaries are entitled to receive "reasonable" compensation. What makes matters more troubling is that professional guardians are not required to have any formal training, and the State of Virginia lacks of unified system to keep oversight over the firms it places in guardianship positions.

Recently the county's commissioner of accounts, the fiduciary watchdog that approves billings, told NMP to refund about $229,000 for expenses in seven different cases, including the Drakulich's case. In the case of Drakulichs, NMP argues that the fees they charged the Drakulichs was reasonable because of "the amount of work needed on cases with complicated family dynamics." Now, the Supreme Court of Virginia will hear this precedent setting case on how much a private firm can charge for guardianship duties. What shocked the family members of the different wards was that the firm was charging them $165,000 legal tab to defend itself. 

See Justin Jouvenal, Guardianship Case in McLean Illustrates Lack of Regulation For Those Caring For The Elderly, The Washington Post, Nov. 29, 2012. 

Special thanks to Lewis J. Saret (Attorney at Law, Washington D.C.) and Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

In response to this posting, the law firm of Needham Mitnick & Pollack submitted the following response:

Our firm, Needham Mitnick & Pollack, has served as guardian and conservator in numerous cases over the last 20 years, including many pro bono cases. We take our responsibilities seriously, as evidenced by our reputation in the community. We also take seriously the misleading reporting by The Post in this article.

What was not stated in the article is that both an independent court investigator and the judge reviewed all of our bills for seven years of work and concluded that all of our time was reasonable and that the services performed were necessary, appropriate, proper and of value to the wards. 

To illustrate just one problem with the story, the article’s closing implied that our goal was to deplete the Drakuliches’ estates of all assets. However, when Jeanne Drakulich died in December 2010, there was more than $379,000 in her estate and all four Drakulich children asked our firm to serve as administrator of her estate. 

By not providing a balanced story, The Post has done a disservice to the valuable work performed by the elder law community.

Article on LGBT Issues and Adult Guardianship

Nancy J. Knauer (I. Herman Stern Professor of Law, Temple University - James E. Beasley School of Law) recently published her article entitled LGBT Issues and Adult Guardianship: A Comparative Perspective, Comparative Perspectives on Guardianship, Kim Dayton, ed., 2013.

The abstract available on SSRN is below: 

Guardianship reform has largely overlooked issues related to sexual orientation and gender identity. Lesbian, gay, bisexual, and transgender (LGBT) individuals, however, present a distinct set of needs and concerns due to certain unique demographic characteristics, the evolving nature of LGBT civil rights, and the stubborn persistence of anti-LGBT bias and prejudice. This chapter explores these  LGBT-specific concerns from a comparative perspective and identifies the various ways that seemingly neutral guardianship laws can work to silence LGBT identities and place LGBT families at risk. It concludes that guardianship systems should incorporate safeguards that expressly acknowledge the importance of sexual orientation and gender identity. Respect for a ward’s sexual orientation and gender identity is essential to the concepts of dignity and self-determination that have served as the guiding principles of guardianship reform. In the absence of appropriate safeguards, even guardianship reform driven by a “person-centered philosophy” will ultimately fall short and fail to protect the interests of LGBT individuals and LGBT families.

Estate Planning Lessons Learned

Recently, Natina Reed, noted for her role as Jenelope in the movie "Bring It On" and a member of the girl group "Blaque," passed away when a car struck her as a pedestrian. She died rather young at the age of 32. Like most people, Reed did not have any formal estate planning documents in place at her death. The lesson that can be learned here is that it is never too early to begin planning for a person's death, which includes the traditional estate planning documents. This is especially the case when a person has a minor child, which is what happened here in Natina Reed's case. The reason that a will is so important is because it is one of the few documents that a person can use to appoint a guardian for a minor. In fact, it "is the only way to appoint a potential successor guardian for a minor in many jurisdictions."

See Evan Guthrie Law Firm, Estate Planning: Lessons Learned From Natina Reed, JDSupra, Oct. 29, 2012.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Mock Trial of Mary Todd Lincoln Rules in Favor of Lincoln

A group of modern-day judges, jury members, and attorneys re-enacted the insanity trial of Mary Todd Lincoln. The modern-day mock trial determined that Lincoln should not be declared a "lunatic." At her original trial, the former first lady was declared a "lunatic" after her son, Robert Lincoln, that his mother was insane. Upon this determination, she was sent to Belleuvue Sanitarium in Batavia. Thankfully, the former first lady was able to obtain an early release after her friend Myra Bradwell helped her. In a second trial, Ms. Lincoln was declared "sane" and she re-obtained the right to control her assets. According to Beacon News, who reported on this incident, "historians disagree whether the evidence against the first lady was trumped up, whether the procedures used constituted due process, and what would occur if today’s modernized health laws were applied to the same facts."

See Stephanie Lulay, Retrial Rules: No Sanitorium Needed for Mary Todd Lincoln, The Beacon-News, Sept. 24, 2012.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this blog to my attention.

Victims of Conservatorship Abuse in Tennessee Fight Back

As I have previously discussed, many people have made allegations of conservatorship abuse in Tennessee, including Jewell Tinnon and Danny Tate. Now these individuals are fighting back against the injustice that was done to them. Both Ms. Tinnon and Mr. Tate testified at a hearing about their individual conservatorship stories. Both explained how they were wrongly stripped of their possessions, even after they had shown the court that they did not lack the mental capacity to take care of themselves. Ms. Tinnon explained how all of her assets were sold. Mr. Tate testified that in the past week the last major asset that he owned was purchased by one of the lawyers that worked on his conservatorship. Both Ms. Tinnon and Mr. Tate were placed in conservatorship by Judge Randy Kennedy in Davidson County. However, the abuse in Tennessee is not limited to that county. There are also reported incidents in Wilson and Stewart County.

Retired General Session Judge Barry told the hearing that the problem with conservatorships in Tennessee is that judges are not following the law. He argued that if there was an outside source that could  monitor the situation, this might ensure that the law will be enforced.

See Walter F. Roche Jr., Witnesses' Tales Reveal Flaws in TN's Conservatorship Law, The Tennessean, Sept. 21, 2012.

Trial of Court-Appointed Guardian Set to Begin

The Kings County District Attorney’s Office in New York has accused Raymond Alfred Jones of abusing his role as a fiduciary in two different cases. In both of those cases, Jones was a court-appointed guardian.

In the early 2000s, Mr. Jones was appointed to be the guardian for a Mr. Roy L. This person suffered a severe injury that caused him to become incapacitated. Mr. Roy L received a large wrongful life settlement in the amount of $684,700. As his guardian, Mr. Jones decided to purchase a house and retrofit the building to suit Mr. Roy L’s needs; however, he acted without the court’s approval. In fact, he would not receive the court’s approval until 19 months after the fact. While the house was being retrofitted, Mr. Jones had his ward and his mother Ms. Elaine DeJesus stay in the basement apartment of a building that belonged to one of his business associates. Even though Mr. Jones was given a rent allotment for $300 per month, Mr. Jones’ business associate charged them about $1,200 per month. It took two years before Mr. Roy L. could move into his unfinished home. The improvements were not completed at the time that Mr. Jones was removed from his position.

The civil court on this case held that Mr. Jones’ actions were equivalent to self-dealing. In addition, the court stated that his actions were often conducted at the expense of Mr. Roy L. The court ordered that he pay Mr. Roy L’s estate $501,425.67. 

See Charisma L. Miller, Esq., Former Court-Appointed Guardian Charged With Grand Larceny, Brooklyn Daily Eagle, 2012.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

Article on Appointing Guardians

Alyssa A. DiRusso (Professor, Samford University, Cumberland School of Law) and S. Kristen Peters (Associate Lawyer, Alabama) recently published their article entitled, Parental Testamentary Appointments of Guardians for Children, 25 Quinnipiac Prob. L.J. 4 (2012). The abstract from SSRN is provided below:

Who decides the right person to raise a child whose parents have died? Although many parents believe that the appointment of a guardian they make in a will for their child is binding, in fact courts in many states can choose to ignore parental wishes. Nearly half of U.S. states vest the power to appoint a guardian with the court, which can consider issues in addition to – and in some cases as a priority over – the parent’s testamentary appointment. States are divided into two categories: court-appointed states, where the court has the ultimate power to appoint a guardian, and parent-appointed states, where the parent’s appointment controls (subject to certain limitations). This article describes the status of state law within these categories of court-appointed and parent-appointed states, and explains why statutes ought to be reformed to insure that courts cannot ignore a parent’s testamentary appointment of a guardian.