Wills, Trusts & Estates Prof Blog

The retired pilot went to the hospital. Then his life went into a tailspin.

Three years ago, Douglas Hulse's medical distress at a Florida gas station prompted a 911 call, leading to his hospitalization for a stroke at 80 years old. With no one to care for him and living alone, the hospital faced a dilemma with his lack of improvement, potentially leading to liability concerns. Consequently, a legal guardianship was sought, ultimately stripping Hulse of his independence and basic rights, including managing his finances, choosing his residence, and even voting.

As a result of the guardianship, he was relocated to a nursing home, where his newly appointed guardian began selling his assets. Hulse's story reflects the plight of 1 million Americans caught in a guardianship system designed to safeguard vulnerable individuals, particularly the elderly. However, this system has come under significant scrutiny for its susceptibility to abuse and financial exploitation.

Over the past three years, Hulse's experience has revealed significant issues within the government system and the hospital pipeline. Amid the COVID-19 pandemic, hospitals increasingly sought guardianships to discharge patients legally and create more bed space. This practice persists today as a convenient means to release elderly patients, who can become costly for hospitals over prolonged stays.

Despite granting guardians access to wards' bank accounts, there are limited mechanisms for effective oversight, leading to instances of financial misconduct that often go unpunished. As the elderly population grows, particularly in Florida, termed the "silver tsunami," the issue has gained renewed attention. Many elderly individuals, often without nearby family, have relocated to Florida, amplifying the need for better protection within the guardianship system.

For more information see Mary Jordan “The retired pilot went to the hospital. Then his life went into a tailspin.”, The Washington Post, November 4 2023.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) and to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention. 

‘I Had Been Exploited:’ Takeaways From Britney Spears’s Memoir

Britney Spears' recounts her experiences, particularly her struggles with mental health and the legal guardianship under her father, James P. Spears, starting in 2008, in the much awaited memoir, “The Woman in Me.” The pop star’s new book will be released on Tuesday.

Despite some private resistance, she ultimately felt compelled to comply with the guardianship due to exhaustion and a fear of losing access to her two young sons. She recounts feeling helpless and vulnerable, expressing her realization that her freedom was compromised in exchange for the ability to spend time with her children.

For more information see Julia Jacobs and Joe Coscarelli “‘I Had Been Exploited:’ Takeaways from Britney Spears’s Memoir” The New York Times, October 19, 2023.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention. 

Drama Erupts In Carol Burnett’s Guardianship Battle Over Addict Daughter’s Son

As family drama unfolded, legendary comedian Carol Burnett was in court earlier this year. Burnett and her husband, Brian Miller, filed a petition in 2022 to be appointed temporary guardians of their 14-year-old grandson as their daughter Erin Hamilton suffers from addiction issues.

In the filing, Burnett revealed that Erin had threatened to take her own life and was placed on a 5150 hold by police. Burnett and Miller filed the petition to provide their grandson with a more stable, predictable, and healthy environment. The couple was granted temporary guardianship of their grandson; however, they later asked the court to allow Jodi Pais Montgomery to fill the role, which was granted. Montgomery previously worked as Britney Spears's co-conservator.

For more information see Aaron Johnson “Drama Erupts In Carol Burnett’s Guardianship Battle Over Addict Daughter’s Son” Radar Online, April 12, 2023.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.  

‘Incapacitated’ People’s Homes Are Being Sold by Their Guardians With Little Scrutiny

Over the past six years, VICE News has identified over a dozen cases in Florida public records where guardianship wards’ homes are being sold for cheap in potentially shady deals. Jan Garwood is one of them.

After suffering a major car accident, the loss of one of her sons, and a fall that caused neck and head injuries, Garwood was put under a conservatorship by professional guardian Rebecca Fierle. 

Fierle put Garwood into an assisted living memory ward and sold her home to an employee. It took years for Garwood to find a way out of the guardianship.

Advocates claim that a lack of regulation at all levels leaves the guardianship system prone to exploitation for those looking to make a profit. For example, in Florida, anyone can submit a petition to determine another person's incapacity.

Due to this lack of data, in May of this year, Sen. Bob Casey (D-Penn.) and Sen. Mike Braun (R-Ind.) of the Senate Special Committee on Aging sent a letter to the U.S. Government Accountability Office (GAO) asking the office to examine guardianship laws and reform efforts across the country. 

For more information see Rebecca Gibian “‘Incapacitated’ People’s Homes Are Being Sold By Their Guardians With Little Scrutiny” Vice, August 8, 2023.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.  

‘General Hospital’ Star Mired in Off-Screen Guardianship Drama

The daytime soap star, Tyler Christopher, is no stranger to personal struggles playing out publicly. The actor lost jobs at General Hospital and Days of Our Lives due to his alcohol use and was arrested for public intoxication earlier this year.

In 2019, he underwent life-saving craniotomy surgery after fracturing his skull due to a fall while experiencing alcohol withdrawal. At the time, his sister filed a petition to put him under a guardianship. 

“I never thought in a million years that I would be taken advantage of by a family member,” Christopher, 50, said in an interview.

Family members have defended their stewardship and described his public statements as unproven.

For more information see Ronnie Greene “‘General Hospital’ Star Mired in Off-Screen Guardianship Drama” Bloomberg Law, July 13, 2023.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention. 

Peter Max’s Bare Ledgers Show Guardianships Drain Even the Rich

Peter Max, known for psychedelic art that put him on par with Andy Warhol as a cultural icon, has been diagnosed with advanced-stage Alzheimer’s. As his memory began to falter and his finances fell into disarray, he consented to have neutral guardians oversee his impressive estate in 2016. All it took were the words, “Yeah, I understand.”

The guardianship order gave control of his finances and cared to three court-appointed fiduciaries: a property guardian, a personal needs guardian, and a court-appointed lawyer. Since 2016, the three have billed millions amidst a family situation that a federal judge has described as “toxic.” Libra Max, Peter’s daughter, has challenged the fees calling them “grossly excessive.” 

For more information see Ronnie Greene and Holly Barker “Peter Max’s Bare Ledgers Show Guardianships Drain Even the Rich” Bloomberg Law, March 9, 2023.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

Guardians' Dark Side: Lax Rules Open the Vulnerable to Abuse

Reporters Ronnie Greene and Holly Barker for Bloomberg Law investigated the Adult Guardianship industry over six months, resulting in a five-part series. Greene and Barker found the industry to be loosely regulated and ripe for exploitation of the most vulnerable members of society.

Britney Spears’ fight to escape her conservatorship stirred public attention to the flawed system, where there is essentially a lack of oversight over how guardians treat those in their care. Moreover, the dysfunctional system generates substantial fees in millions, or even billions, of dollars.

For more information see Ronnie Greene and Holly Barker “Guardians’ Dark Side: Lax Rules Open the Vulnerable to Abuse” Bloomberg Law, March 6, 2023.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this series to my attention.

Britney Spears asks judge to deny mom's request for over $660K in legal fees

Britney Spears has asked a judge to deny her mother's request for the singer to pay over $660,000 in legal fees.

Lynne Spears' filed a petition in November to request legal fees, in which she claimed that she hired a team "to assist Britney to break the restriction imposed by the conservatorship." 

Britney Spears' attorney Matthew Rosengart filed an objection to the petition for payment on April 5, arguing that "Lynne is a third party to the conservatorship and that there's no authority that says a third party can obtain funds from a conservatee's estate to pay for attorneys hired by that third party.

Rosengart also mentioned that Britney Spears has paid over $1 million over the last decade for Lynne to live in a "large, expensive house" and also argued that Britney pays for Lynne's "utilities, telephone services, insurance, property taxes, landscaping, pool work, pest control, repairs, and maintenance, totaling $1.7 million. . ." 

A ruling has not yet been made. 

See Melissa Roberto, Britney Spears asks judge to deny mom's request for over $660K in legal fees, Fox Business, April 8, 2022. 

Amanda Bynes files to terminate conservatorship after nearly 9 years

American actress Amanda Bynes has filed to end her conservatorship, confirmed by her attorney David A. Esquibias. 

The retired actress, known for her roles in Hairspray, She's the Man, and All That, filed to terminate the conservatorship of her person and her estate in a petition submitted at the Ventura County Superior Court. 

Bynes, 35, is currently working on a degree at California's Fashion Institute of Design and Merchandising and believes she no longer needs protection from the court, as she believes her condition has vastly improved. 

In 2013, Bynes had a series of troubles including multiple DUI  arrests, a drug related arrest, shoplifting allegations, and even set fire to a stranger's driveway. Bynes's mother, Lynn, currently oversees the conservatorship and has done so since 2013 when Bynes was hospitalized on an involuntary psychiatric hold. 

In 2020, the Nickelodeon star celebrated 18 months of sobriety, telling Paper Magazine, that substance abuse was the core of her problems. 

Although Bynes's conservatorship was extended to 2023, her attorney believes that the legal arrangement could "be terminated at any time for good cause." 

A hearing regarding the conservatorship is set for March 22. 

See Suzy Byrne, Amanda Bynes files to terminate conservatorship after nearly 9 years, Yahoo Entertainment, February 25, 2022. 

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

Article: Protective Orders & Limited Guardianships: Legal Tools for Sidelining Plenary Guardianship

Nina A. Kohn and David M. English recently published an article entitled, Protective Orders & Limited Guardianships: Legal Tools for Sidelining Plenary Guardianship, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:

By encouraging use of limited guardianships and protective orders instead of full guardianships, states can reduce the likelihood of unnecessarily stripping adults of their civil rights. Yet, although such less restrictive alternatives have long been available to most courts, in practice, their use remains limited and sporadic. This article argues that this lack of use suggests that it is not sufficient for the law to state a preference for these less restrictive alternatives, it must actually create systems that incentivize their use and actively discourage the use of full guardianships. This article then shows, using the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act as a guide, how states can adopt statutes that create such systems.