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When the Guardian is An Abuser

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CHAPTER SUMMARY • June 2019 Dari Pogach and Erica Wood, American Bar Association Commission on Law and Aging Introduction Courts name guardians to protect adults from abuse, neglect, or exploitation; however, in some circumstances, guardians are the perpetrators of such actions. Guardians wield immense power over adults in their care. More information is needed on the extent and consequences of abuse by professional and family/ non-professional guardians. Recent government and media reports have highlighted egregious cases in which guardians have taken advantage of their positions. What can an advocate do when a guardian is a perpetrator of abuse? In this issue brief, the generic terms “guardian” or “guardianship” refer to guardians of the person as well as guardians of the property, frequently called “conservators,” unless otherwise indicated. The term “abuse” refers to abuse, neglect, or exploitation, unless otherwise indicated. Case Examples1 EXAMPLE 1 Mr. G, injured at birth, receives monthly settlement and periodic lump sum payments, and has had a guardian his entire adult life. The court ordered that all Mr. G’s money be placed into a trust and a professional fiduciary appointed to handle the finances. During the 12 years of the trust, the professional fiduciary made numerous interest-free “loans” to himself, to his friends, and to his speculative business ventures. The fiduciary paid himself trustee and accounting fees, without accounting to the court. An attorney appointed to represent Mr. G subpoenaed and combed through years of bank records to uncover the fiduciary’s actions; appointed a special master to perform a forensic accounting; and brought a recovery action against the fiduciary, obtaining a judgment of over $300,000. The fiduciary has since been charged criminally. EXAMPLE 2 Mr. S became comatose after a serious fall. His adopted daughter, appointed as… Read More

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Justice Sleeps While Seniors Suffer

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Justice Sleeps While Seniors Suffer Emmeline Frey was wheeled toward the bench, escorted by a family friend. She was 93 years old and frail, suffering from dementia and a broken hip. In San Diego County’s busy Probate Court, it was up to Judge Thomas R. Mitchell to decide how to preserve the $1 million she had amassed pinching pennies over a lifetime. On the recommendation of Frey’s attorney, he appointed a professional conservator named Donna Daum. Frey’s affairs were now in the hands of a caretaker acting under court supervision. Her money should have been safe. It was not. Daum gave her son, a car salesman turned financial advisor, more than $500,000 of Frey’s savings to invest. Over the next four years, the investments lost more than $100,000 in value while the son collected commissions. Mitchell, who described himself as the “super father” of the seniors who entered his courtroom, never questioned what Daum was doing with her client’s money or why her son was involved. The case illustrates how inaction and inattention by the courts have left many elderly Californians vulnerable to abuse by the very people entrusted with their care. Professional conservators wield enormous power over people deemed too infirm to look after themselves. They choose their doctors, control their bank accounts and decide where they will live — even who can visit them. Probate courts, which appoint conservators, are supposed to monitor their conduct, scrutinize their financial reports and fine or remove those who misuse their authority. Yet the courts have failed dismally in this vital role. A Times examination of more than 2,400 conservatorship cases since 1997 found that judges frequently overlooked incompetence, neglect and outright theft. Some conservators steered business to friends and relatives without… Read More

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