The Truth About Elder Kidnapping in America

When Sherry Moses accompanied her mother to a hospital on East 68 Street in Manhattan in February 2015 for a minor complication arising from diabetes, she thought her mother would be home within the week. But Annette Moses never came home. A petition for guardianship had been filed in the Supreme Court of New York, which landed the 79 year old in a nursing home on 106 Street allegedly against her will and under the thumb of a court appointed guardian.

The daughter stayed behind in the 3-bedroom, family-owned apartment located at 1901 Madison Avenue until January 2018 when she was locked out by U.S. Marshals who were following a court order.

“When I visit my mother, she’s often in a slumped over position like a rag doll,” said Miss Moses. “She needs dental care and has lost a lot of weight. She’s depressed because she doesn’t want our apartment sold and wants to come home.”

Mrs. Annette Moses is among the 2,606 active Article 81 guardianship cases reported in New York county, according to the Lucian Chalfen of the court’s Office of Public Information.

Nationwide, some 1.3 million adults are estimated under the care of court appointed guardians, whether family members or professionals, who control roughly $50 billion of their assets, according to the National Center for State Courts.

“Evidence is mounting that state courts are essentially rubber stamping these petitions and are not affording due process to the adults whose rights are targeted in these proceedings,” said Tom Coleman, founder of the Spectrum Institute and attorney based in California where guardianship is referred to as conservatorship.

Guardianships and conservatorships are typically initiated when a relative or even outside party claims the senior citizen or person with disabilities lacks the capacity to handle his or her own personal or financial affairs.

A famous example is Britney Spears.

But once guardianized, younger adults with disabilities and senior citizens lose all of their rights and can be denied voting privileges, choice of food, choice of health insurance, choice of medical care and even choice of visitation with their adult children and grandchildren.

“Guardianship reformers should convince one state to become a model,” said Coleman who produced the Hollywood documentary the Pursuit of Justice, directed by Greg Byers. “Then we will have something to use as we challenge other states.”

Jamsheed Saghafi learned first hand why critics are worried for future generations of retirees and advocating for an intervention into state guardianship programs. After his 85 year old mother, Fourough, was guardianized by a Lorain County Probate Court in Ohio, the court appointed guardian reportedly initiated a divorce between his mother and 88 year old retired surgeon father, Mehdi, who had been married sixty years.

“She has been used as a vehicle to defraud the family’s estate while severe cognitive illness has left her vulnerable to personal and financial exploitation,” said Saghafi of his mother.

The Honorable Lorain County Probate Judge James Walther declined to comment when approached about an interview.

A racketeering lawsuit was filed on January 31, 2019 against 8 lawyers, a real estate developer and CPA who were allegedly directly or indirectly involved with the guardianship of Saghafi’s mother. While John McCaffrey of the Tucker Ellis law firm, counsel for the defendants, was reached by telephone, he did not comment. Unless continued, a hearing is set for July 25 in Cuyahoga County, Ohio.

In recent years, there’s been a rise in news articles reporting elder abuse under court appointed guardianship imposed upon senior citizens who are experiencing cognitive decline and with the number of seniors afflicted with Alzheimer’s, elected officials are becoming concerned. More than half a million Americans will develop Alzheimer’s disease this year, according to Alzheimer’s Association data.

Pennsylvania’s Democratic Senator Bob Casey, chairman and ranking member of the Senate Committee on Aging, introduced the Guardianship Accountability Act (GAA) last year with Senator Collins of Maine. The proposed law is currently pending with the Senate Judiciary Committee.

“While most guardians act in the best interest of the individual they care for, far too often, we have heard horror stories of guardians who have abused, neglected or exploited a person in their care,” said Senator Casey in a statement posted online. “The Guardianship Accountability Act is a first step towards improving our guardianship system and ensuring it protects seniors and people with disabilities.”

But advocates say the GAA doesn’t do enough to hold judges accountable.

“The industry now clearly operates for the financial benefit of the few rather than the independence and welfare of the many and it is judges who enable the system,” said Attorney Bradley Geller.

Reform is underway however the process is slow.

After Counselor Geller filed a federal Qui Tam false claims complaint naming the Michigan Supreme Court, the Michigan Attorney General, each of the state’s probate courts and all 300 of the state’s professional guardians as defendants, the Michigan Supreme Court together with Michigan Attorney General Dana Nessel established an Elder Abuse Task Force on March 25, 2019.

“Chief Justice McCormack reached out to the Attorney General earlier this year to discuss her concerns about elder abuse and the task force was created to investigate, listen to the public, look at best practices, and make recommendations,” said Michigan Supreme Court Communications Director John Nevin. “Justices Cavanagh and Bernstein are serving on the task force and are traveling across Michigan to attend listening sessions, hearing from the public regarding their specific concerns.”

In California, Coleman filed an Amicus Curiae brief with the Supreme Court in a conservatorship case, asking the Court to require closer scrutiny by appellate courts when a conservatee alleges that an order establishing a conservatorship is not supported by clear and convincing evidence.

Guardianship reformers should convince one state to become a model then we will have something to use as we challenge other states,” Coleman said.

Tom Coleman’s friend of the court brief

Upcoming Listening Sessions posted on the Michigan Attorney General’s website include:

Date: July 08, 2019

Time: 10:00 AM — 12:00 PM

Berrien County Health Department
2149 E Napier Ave.
Benton Harbor, MI 49022

Date: July 09, 2019

Time: 10:00 AM — 12:00 PM

Description:10 A.M. — 12 P.M.

Kalamazoo County Juvenile Home
1424 Gull Road
Kalamazoo, MI 49048

Family members advocating for the voting rights of the guardianized with Tom Coleman

This article is written in loving memory of James Edgar Fairley, a U.S. Airman who served in Vietnam, Korea and World War 2.

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Juliette Fairley

Juliette Fairley

Manhattan based national freelancer and investigative journalist.