The Truth About Elder Custody Battles

Jennifer Faga quit her job as a commercial real estate agent and business consultant in 2016 to care for her 80 year old mother Jeanne. After a dispute with a sibling resulted in an unexpected court battle over guardianship, the 57 year old was left with $50,000 in legal debt.

“I am my mother’s healthcare proxy but I have been isolated from her without any evidence of wrongdoing,” Faga told Medium.

After a judge appointed a professional guardian to oversee the now 82 year old Jeanne’s care, Faga says her mother was relocated to an assisted living facility in Westchester, New York where the devoted daughter alleges she has suffered from multiple falls and three bouts of pneumonia.

“My mother and I were blindsided by this court ordered guardianship because she had the proper estate planning documents in place and I always provided her with the best medical care,” said Faga who resides on the East End of Long Island, New York. “It’s inconceivable how a judge can legally void my mother’s estate planning documents and force her into third party care.”

To add insult to injury, Faga claims the court appointed guardian is trying to force the sale of family property at half the value and is charging against her mother’s estate for services that are covered by a long term care insurance policy.

“The guardian billed more than $400,000 in 9 months for duties that I would do for my mother at no cost,” Faga said. “She’s also trying to force the sale of property that I own that’s in my name that has nothing to do with my mother.”

Faga is among a growing number of adult children who are turning to higher courts for justice.

“Family dysfunction and sibling rivalry are the primary reasons the matriarch or patriarch of a family is typically guardianized and ultimately starved, drugged or isolated to death unless they are restored to capacity,” said Dr. Sam Sugar, founder of Americans Against Abusive Probate Guardianship (AAAPG) in Hollywood, Florida.

On May 15, 2018, federal judge Lee H. Rosenthal in Houston issued a landmark ruling allowing a wrongful death lawsuit to proceed against the $500,000 public official bond of state probate judge Christine Butts in Harris County. The claim against Judge Butts’ bond was brought to the Southern District federal court of Texas by Sherry Johnston who alleges Judge Butts turned a blind eye to the preventable decline of her aging mother Willie Jo Mills while she was a ward of the State of Texas under guardianship.

“Even though a guardianship should be used to honor the best interest of the ward, it’s become clear that the system has become a business,” said Taso Pardalis, an attorney and partner with Pardalis & Nohavicka Lawyers in New York.

A “ward” is a legal term used to describe a senior citizen who has been guardianized due to cognitive decline, such as memory loss. But younger adults are also at risk for becoming a ward of the state due to autism, mental illness or disabilities from car or motorcycle accidents, for example.

“It is unconscionable that this abuse can occur under the watch of the U.S. Attorney General in 2018,” Pardalis told Medium. “Approximately 5 to 10% of adult guardianships in this country are reported to have a fraudulent aspect — yet the percentage is most certainly much higher.”

In North Carolina, Ginny Johnson claims she had been named her father Hugh Beverley Johnson’s power of attorney and health care proxy but after a sibling filed for guardianship in Wake County’s Special Proceedings Estate Division Probate Court, a professional guardian was appointed instead.

Johnson says she cared for the 95 year old Hugh in the colonial home she was raised in for 35 years until one day, three months after her dad had been guardianized, she came home to find herself locked out of their Raleigh house with no trace of her Dad.

“My father was in great shape until he was warehoused by the court appointed guardian in a care center that starved him, restricted him from seeing me and didn’t shower him regularly,” Johnson said.

A year later, the elderly military veteran, who had owned a dry cleaning business, passed away at 96 years old, according to Johnson who has since filed a wrongful death lawsuit with the North Carolina Industrial Commission.

The Commission declined to comment.

“We are the state’s designated tribunal/court for tort claims against the State of North Carolina and, as such, we simply cannot comment on any potential, pending or adjudicated claim before us,” said J. Brian Ratledge, general counsel with the North Carolina Industrial Commission.

The AAAPG’s Dr. Sugar says he gets new calls daily from adult children who are either left penniless, restricted from visiting their parents or both.

“It’s the worst punishment to inflict on an adult child whose parent is at the end of their life because they may never see their mother or father again,” Dr. Sugar said. “Court insiders collude on these restricted visitation orders to crush any challenge to the Judge or guardian’s ultimate authority.”

Active pending adult guardianship cases in the U.S. range from fewer than 1 million to more than 3 million, according to the National Center for State Courts, but with baby boomers entering their golden years and experiencing Alzheimer’s or dementia, that number is on the rise.

By 2020, some 14 million seniors are expected to be afflicted, according to the Alzheimer’s Association data, and they will be at risk for guardianization by the courts.

“The court and the court appointed guardian cannot strip the person of all their assets unless they first declare the individual incapacitated at which point the guardian owns them the way a master owns a slave,” said Dr. Sugar who authored the best selling book Guardianships & The Elderly:The Perfect Crime.

That’s because once an individual is placed under guardianship, he or she becomes a ward of the state, forfeiting their assets while losing all of their rights.

Critics claim guardians appointed by judges, whether they are greedy family members or court insiders, rob the estate by overcharging for legal fees as well as tasks and duties that non-guardian family members perform out of love.

“Private guardians are legally allowed to charge a ‘reasonable’ fee but the State has not defined the term,” Pardalis said. “Some private guardians charge rates as high as $600 an hour for tasks as menial and mundane as writing emails. Fees are billed to the ward’s estate and without sufficient supervision by the State of the guardian’s operations, there is a high potential for financial abuse.”

Orders of restricted visitation can also be very expensive.

For example, Mary Bush in West Chester, Pennsylvania is required to pay $50 to visit her 87 year old mother Genevieve Bush who resides at Park Lane nursing home.

An APS worker and a Sheriff must also be present, according to Bush’s visitation order.

“The court has unjustly labeled me a criminal and violated my due process rights,” Bush said. “My mom had a million dollar estate that has been liquidated by court appointed guardians.”

The Honorable Judge Katherine Platt of the Chester County Court of Common Pleas declined to comment specifically on the Bush guardianship but stated that neither the county nor the state profit from senior citizens who are wards of the state of Pennsylvania under guardianship.

“If anything, they are a drain on judicial resources,” Judge Platt said. “Judges are law trained. We are not social workers and most of us don’t have advanced degrees in the mental health arena. Family dynamics, in some cases, go beyond what our constitutional commission requires of us.”

Judge Platt says she has witnessed court appointed guardians and judges alike being pulled into the dynamics when a parent of a dysfunctional family is guardianized.

“If a court appointed guardian has to deal with dysfunctional relatives of an incapacitated person, they are entitled to be compensated for the time it takes to intercede,” said Judge Platt, an Orphans’ Court judge.

As for orders of visitation that limit an adult child’s visitation with a relative at the end of their life, Judge Platt said, “There’s nothing written in our statute that defines severity.”

But Philadelphia Attorney Alan Denenberg defined severity in a federal lawsuit he filed in the U.S. District Court for the Eastern District of Pennsylvania against two Westtown East Goshen Police Officers whom he alleges conspired to violate Ms. Bush’s 4th Amendment Rights under the U.S. Constitution by using excessive force in the parking lot of Park Lane nursing home where Ms. Bush’s mother resides under guardianship.

Bush v. East Goshen Township et al, against Sergeant James Renegar and Ted Lewis of West Chester, outlines four counts including assault and battery under state law.

“Sgt. Renegar lunged at the Plaintiff Mary Bush, grabbing her cell phone and throwing it to the ground,” stated Counselor Denenberg in an August 29, 2018 Amended Complaint. “Sgt. Renegar then body slammed the Plaintiff onto the pavement causing her head to strike the hard surface. Although she was not resisting arrest, Sgt. Reneger got on top of the plaintiff, twisted her left arm way up her back and threatened to shoot or taser the Palintiff.”

The adult guardianship system in the U.S. is in plain need of greater oversight. But in the meantime, in order to avoid a full-on custody court battle that leads to restricted visits with relatives at the end of their lives, Judge Platt recommends professional mediation.

“Sometimes real contentions exist between family members and there’s quite a discernment that needs to take place to evaluate deep seated historical grievances,” she said. “Mediators have more time for the nuances.”

Meanwhile, the adult children who feel defrauded and are restricted from visiting their elderly relative are increasingly joining immigrant parents who are protesting being separated from their children under detention.

“We feel their pain,” Bush said. “It’s the same situation except it’s our elderly parents who are being detained and we are Americans being separated from them.”