(Guardianship “Reform” Legislation is Failing to Address the “Beast”)
Angela V. Woodhull, Ph.D.
(licensed private investigator)
there is no definition for “Dancing Around the Beast.” Likewise, a few books on colloquialisms does not produce any reference to “Dancing Around the Beast.”
Okay. We all know what it means. It’s the “elephant in the room” Or put another way, it’s “skirting the issue.” It’s talking about a “problem” and addressing all of the peripheral issues but never tackling “the problem,” better known as The Beast.
You may be asking, “Well, who is the Beast?” And if you haven’t guessed by now, The Beast, by all means, are attorneys—the primary vultures when you or your loved
one have been placed under an involuntary, predatory guardianship.
What can be done about the Beast?
Those of us who are Civil Rights Guardianship Reform Activists have done several things to confront the Beast.
· Gone to court
· Hired attorneys to fight the Beast (other attorneys)
· Contacted law enforcement (to no avail)
· And, finally, contacted our local legislators, crying, “You need to change the laws! We need guardianship legislative reform!!”
Guardianship Attorneys Are “The Beast”
In a nutshell, The “Beast” is predatory guardianship attorneys who set off to covert all of your assets into attorneys’ fees. And as we saw in the Marie Long case, it doesn’t take long for a team of vulcher-like guardianship attorneys to deplete a $1.3 million estate leaving the victim subsiding on welfare and Medicaid. The “solution”, from public outcry in Arizona, was to demand legislative reform. But that main goal was quickly forgotten.
HR2424 quickly evolved into a pro-guardianship bill.
As guardianship victims go round and round from legislator’s office to legislator’s office looking ways to reform the law, everything is address except for The Beast. Take a look at some of the reforms that all of our efforts have gotten us so far:
· New Law, state of Washington: A guardianship should only be commenced with “clear and convincing evidence.”
The Beast doesn’t care about this law. This law will not stop The Beast. Why? Because there are always medical professionals who will write reports of “clear and convincing evidence” so that a guardianship can be commenced upon anyone.
Take the case of Debra Skulls, for example. When her mother died, she inherited about $250,000.00 and thought she would move in with her brother and his wife. But Skull’s sister-in-law did not like that plan. The solution? Skull was declared by “clear and convincing evidence” mentally incompetent placed under the “care” of a professional guardian who allowed Skull to live in a filthy half way house in the downtown Miami area while Skull’s
“guardian” and the guardian’s attorney feasted for two years on Skull’s inheritance. When the $250,000.00 was completely spent, Skull was found by “clear and convincing evidence” to be re-capacitated. Yep. As soon as the guardian and her attorneys spent all of Skull’s money, they found three medical doctors to say that Skull no longer needs a guardian. The Beast therefore continues his dance.
· New California law: Professional guardians are now “monitored” once every two years. Does The Beast care about this law? Not in the least. The Beast will continue to rake up exorbitant attorney’s fees while, at the same time, a new industry has been created—private companies that are hired to monitor professional guardians! And guess who pays for this new level of investigation—The Ward! So, meanwhile, The Beast will continue to happily dance.
Let’s take a look at other passed legislation:
California Bill AB 1363--Enhances court review & expands duties of court investigators
(This bill dances around The Beast by adding another layer to the problem. The court investigators may find that an attorney charged $375 for an item that the court should have paid only $350 for. Therefore, the “Beast” still gets to devour the assets of the elderly person, but it may take a little longer.)
In fact, any of the following bills simply “dances around the beast”:
California SB 1116--Increases court oversight of ward moves & sale of
California SB 1550 --Establishes licensing & disciplinary scheme for
California SB 1716-- Allows court to take action in response to informal
ex parte complaints & communications.
Florida HB 457-- Enacts recommendations of Guardianship Task
Florida HB 191-- Enacts amendments concerning less restrictive
alternatives, guardian modification of ward trusts, and court monitors.
because the end result, at the end of the day, is that no one is monitoring or examining The Beast.
The Beast Continues—Unfettered--Despite Any and All
Guardianship Reform Legislation
Does The Beast really care if there is:
· A Guardianship Task Force? (The Guardianship Task force compiled a “report” in 2006. Did this report inhibit the Beast? Not in the least.)
· Increased court oversight regarding the selling of the “ward’s” home? (Does this additional oversight inhibit The Beast? Not in the least. At the end of the day, the attorney is still paid whether the home of the “ward” was sold at fair market value or below market value and then laundered by the guardian and her friends.)
· Increased licensing requirements of professional guardians
And yet another new law was just passed in the state of Kentucky regarding “financial exploitation” of the elderly. Does it sound like a beneficial law that will prompt an investigation of attorneys who convert nearly the entire estate of a “ward” into attorneys’ fees? Of course it does! But what the new Financial Fraud Act of Kentucky actually accomplish? Incredibly, it states is that if a named heir has ever been convicted of a felony, the heir
cannot become a guardian or collect his or her share of the estate!
The new Financial Fraud Act of Kentucky actually benefits professional guardians and their attorneys by making it easier for them to exploit the elderly. Once again, The Beast dances away.
Most recently, in the state of Arizona, Representative David
Smith (R) stopped dancing around the Beast and decided to tackle the Beast directly with HR 2424 which, in its original form, stated that attorneys would be limited to taking only $10,000.00 in fees to defend a challenged guardianship. Guardianship associations, however, quickly opposed the bill, and instead introduced their own bill that gives more power and authority to professional guardians. HR 2424 was soon almost dead in the water and instead incorporated into a pro-guardian bill that, of course,eliminated the $10,000.00 cap of attorneys’ fees.
The Beast—at this point—is so experienced at circumventing guardianship legislative reform that you’ll soon see him on
California Reform of Financial Exploitation of the Elderly and Nursing Home Abuse (CANHR)
Which led me to stumble upon the California Reform of Financial Exploitation of the Elderly and Nursing Home Abuse non-profit organization in California. “Now here is something exciting!” I thought! “An organization that is actually addressing attorneys financially exploiting the elderly!” I couldn’t wait to speak with the director, Pat McGinnis, who claimed in a brief phone conversation with me, that she’s been “fighting the fight”
for 27 years. Even though nothing much has been accomplished,
according to McGinnis, at least she’s been out there writing grants and her staff attorneys address the California legislature on a regular basis. It was Don Quixote with a law degree and I wanted to speak with him.
Prescott Cole, Staff Attorney, California Reform of Financial Exploitation of the Elderly and Nursing Home Abuse (CANHR)
When I received a call back from CANHR staff attorney,
Prescott Cole, I was eager to see what he would suggest as far as authoring legislation that would kill the Beast, or at least tame him dramatically.
I asked Cole, “If I am an elderly person, and my daughter and a professional guardian are battling over whether or not I should be placed under guardianship, why should I be paying for this?”
But Cole had no answer for me. Even though he specializes in “financial exploitation” of the elderly, his investigations into legislative reform never include examining the Beast. Instead,
Cole is the Attorney White Knight who investigates fraudulent insurance companies and shady “reverse mortgage” schemes.
But when I suggested that attorneys are exploiting the elderly by converting a lifetime of savings into attorneys’ fees, this was not a subject that Mr. Cole was interested in pursuing in the least.
The Beast dances again.
Cole suggested that I speak with yet another attorney at CANHR who specializes in guardianship reform.
Alas! I would be put in touch with the “right person” who could tame the Beast!
Disturbing Phone Conversation with Staff Attorney Tony Chicatelle, CANHR
I explained to Chicatelle that I was looking for legislation, similar to what had died in the water in Arizona, where attorneys could be paid no more than a “mere” $10,000.00 in attorneys’
fees for “defending” a guardianship, using the “ward’s” money.
I told him that Norman Lawson, head of the Kentucky Legislative Judicial Committee, stated that there could be a bill that simply states that the “’ward’s’ funds cannot be used for the criminal or civil defense of a guardianship.” End of story.
Chicatelle, however, felt that would be a terrible bill.
And why is that? Because, Chicatelle, in his capacity as the attorney for a non-profit organization, actually is hired to get people out of unnecessary guardianships. “Capping attorneys’ fees,” Chicatelle stated, “would provide a disincentive to fully litigate their rights.”
Yes, you heard me correctly.
So, if someone decides tomorrow to file a guardianship proceeding upon you that you did not ask for, request, or even need, then you might find yourself having to spend your lifetime
of savings on getting yourself OUT of that unwarranted guardianship.
Chicatelle, the non-profit extraordinaire, saw absolutely nothing wrong or out of the ordinary with this scenario. Said Chicatelle, “It’s no different that anyone suing you over anything. I can start a frivolous lawsuit over anything on you and you’ll have to spend money to defend yourself. Or, if you are charge with a crime, you’ll have to hire an attorney to defend yourself.”
Chicatelle added, “My freedom means enough to me that if I had to spend my entire lifetime’s savings to get out of a guardianship, I’d do it.”
Chicatelle saw nothing wrong with this scene, which, in actuality, amounts to, more or less, a legalized form of kidnapping and ransom. After all, he is the “non-profit guy” trying to get you “out” of the guardianship that you shouldn’t have ever been placed under in the first place.
And so, The Beast continues, dancing away, unfettered.
Tomorrow is another day. There will be other civil rights guardianship reform advocates calling up legislators and visiting their 22-year-old legislative side kicks, their eyes glazed over as they feign interest in the subject matter of guardianship reform. There will even be a smitten of legislators taking their own phone calls, some vowing to “’reform’ the guardianship laws.” Some will get a bill or two passed, and there will be a new “tightening” on the restraints of what professional guardians can and cannot do. But the “dance around the beast” will remain, unaddressed.
And the Beast will continue his dance—unfettered--until the federal government seriously steps in and takes the Fourteenth Amendment (life, liberty, and property cannot be removed without due process) seriously. Converting one’s entire lifetime of savings into attorneys’ fees is the dancing beast that needs to be seriously addressed by our federal legislators.
Angela V. Woodhull, Ph.D.
licensed private investigator