Probate Court abuses found across the U.S. (Surprised?)

by Robert Anglen and Pat Kossan - Oct. 28, 2010 12:00 AM
The Arizona Republic

A federal investigation into elder abuse has found that Probate Courts nationwide are failing to protect vulnerable adults from exploitation by the guardians appointed to look after their health and finances.

In a report released Wednesday, the Government Accountability Office reported instances of abuse in 45 states, including Arizona, where courts failed to conduct background checks or monitor those it put in charge of an incapacitated adult.

"It is fair to say from the report that the administration of probate issues in states is spotty at best," said Ashley Glacel, spokeswoman for the Senate Special Committee on Aging, which requested the investigation. "The GAO is saying that there is a good-old-boy network with courts and judges in some states."

For years, the committee has been receiving a flood of complaints from "desperate people" who have lost their life savings or suffered physical abuse while under the protection of state courts, staff members and committee investigators say. Glacel said the committee wants to use the findings to push for additional training for guardians, judges and others involved.

Sen. Herb Kohl, D-Wis., committee chairman, is considering holding hearings next year

Much of the GAO report mirrors findings by The Arizona Republic, which reported that the Maricopa County Probate Court has allowed the assets of some vulnerable adults to be drained to pay fees for lawyers and private fiduciaries who serve as guardians. The fees can add up quickly to tens of thousands of dollars, especially in cases involving family disputes. Judges, who approve the fees, seldom take significant steps to end the disputes or stop the billing.

An Arizona Supreme Court committee began meeting earlier this year to consider reforms in the probate system. Among initial proposals is requiring training for relatives who serve as guardians.

The GAO identified hundreds of allegations of physical abuse, neglect and financial exploitation by guardians in 45 states and the District of Columbia over the past 15 years. Investigators focused on cases where a judge appointed a family member, agency or private business as a guardian.

According to the GAO, guardians appointed and approved by courts in 20 cases stole $5.4 million in assets from 158 incapacitated adults. Investigators found the courts failed in three common areas:

- Screening for criminal convictions and significant financial problems. In four states where guardians are required to be certified, investigators were able to obtain guardianships using two fictitious identities, one with bad credit and the other with a Social Security number from a dead person. The states were Illinois, Nevada, New York and North Carolina.

- Overseeing guardians once they are appointed.

- Communication between state courts and federal agencies. If a federal agency or state court uncovers abuse by a court-appointed guardian, they rarely share that information, allowing the abuse to continue.

The report was compiled from cases that have already gone through the court system. Investigators said they couldn't determine whether the abuse was widespread and added that they could not find a single website, advocacy group or federal agency that compiles comprehensive information on the subject.

Nancy Swetnam, director of the Arizona Supreme Court's certification and licensing division, which regulates private fiduciaries in the state, said the GAO findings are not surprising.

"What it is saying is there are problems across that nation," she said. "That is very consistent with what we've been saying for many years now. There have been cases of abuse by licensed fiduciaries. Some of those people are sitting in prison. Unfortunately, there is also abuse by family members."

Arizona was the first state to require private, for-profit fiduciaries to attend training, get a fingerprint background check and a credit check before being licensed. Private fiduciaries also are subject to random audits. But no such standards exist for relatives.

Two Arizona cases detailed by the GAO underscore the problem.

- A Pima County court appointed Anita Heller's niece to manage her aunt's affairs as her guardian but failed to tell the Social Security agency when it discovered the niece was misappropriating money. The niece continued to receive over $18,000 in Social Security benefits in one year. The niece was later indicted and served probation for misappropriating more than $200,000 from her aunt's estate, which the niece used to give loans and gifts for her children.

- A Cochise County court appointed Lucrecia Pacheco's niece as guardian despite the fact that she twice filed for bankruptcy and had numerous convictions for writing bad checks. A judge appointed the niece over the objections of Pacheco's attorney and allowed the niece to sell her ranch. The court later found that the niece misappropriated $150,000, leaving her incapacitated aunt in danger of losing her housing and unable to pay for medicine. The court ordered restitution and damages of $596,165. In May, the guardian still owed $397,443.

In Arizona, relatives appointed as fiduciaries are required to submit an annual report on the well-being of the ward and an accounting of the ward's finances. At Maricopa County Superior Court, an accounting office reviews the financial reports. Most states, including Arizona, have no system of oversight to make sure the ward is being well-cared for once a court appoints a relative or private fiduciary as guardian.
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We been saying this for years, a better question to put to Senator Kohl and his fellow lawmakers would be. " What are you going to do about it"?

" could not find a single website, advocacy group or federal agency that compiles comprehensive information on the subject." Is this the best you could do after acknowledging the problem? I can think of dozens of sites that write comporehensively about the problem, EstateOfDenial.Com, NASGA,StopGuardianAbuse, and many others....

In many cases I hear about the abuse committed by the courts and attorneys involved
I don't think they are sacrosant and need to be focused upon as they are parties to the crime.

Ray Fernandez