Guardianship Abuse: Are Your Parents Protected from a State Sanctioned Nightmare?
Imagine your elderly parents living a peaceful and happy life after having retired from the workforce. Both of them are staying active whether that includes traveling to new places or taking part in community activities with others their age. They may need some assistance from you or a paid nurse, but they live a happy life free of any health issues that require serious attention.
Then all of a sudden, somebody comes to your parents’ door with a court order mandating that they be moved into an assisted nursing care facility. They are told to drop everything, pack their belongings, and are then forced to leave their house without notice or any counsel from family members or anyone else. Their lives would change immediately, and ultimately for the worse. After being removed from the life that they knew and loved, your parents would have no control over any of the decisions affecting their lives. It would take a serious emotional toll on not only them, but everyone else in the family as well. This horror story of elder abuse sounds like hyperbolic fiction, but the sad reality is that stories like these happen frequently right here in the United States.
In October of 2017, The New Yorker published a shocking article that detailed a case of elder abuse involving Rudy and Rennie North, a couple who lived in a retirement community in Las Vegas. The Norths were a couple in their sixties and had a nurse that visited five times a week. One day in 2013, a woman named April Parks came to their house with a court order that forced the Norths into an assisted living facility without any prior notice.
After they were moved into the facility, the Norths would watch their human rights get stripped away from them. Parks, who was now their guardian, would make their decisions for them. Parks would then go on to overcharge the Norths’ estate for guardian fees, give them new doctors that prescribed stronger, mind-numbing medications, withhold medical information from their family members, and sell their belongings from their old house, which monies were used to pay Parks for her “services”. The worst part of all is that Parks had the right to do all of these things under the then current laws of the state of Nevada.
The New Yorker exposition details how easy it was for doctors to deem seniors medically unfit, judges to order senior citizens into nursing care facilities, and the authorities to ultimately take control of seniors’ lives. While this article brought to light a situation that has seldom been reported, there are many other cases of this abuse of power that happen in other parts of the country.
I had the opportunity to speak with a family from Massachusetts who had a similar encounter with that state involving their elderly parents. Understandably, they requested that their identities not be revealed.
One evening while returning from dinner, the mother, who is an octogenarian, was driving on the wrong side of the road and had to be corrected by the father. Her daughter, who is very involved with her parents, and the father, both made the decision that she should stop driving. This is where most stories would end, but this is only just the beginning.
The mother and father had home health aides who were there seven days a week. When the father had told the aide about his wife’s incident, it was then reported to a nurse, who reported it to others. A slew of events followed shortly thereafter. Once Adult Protective Services (APS) caught word of the incident, they decided to contact the local police, the rescue squad, the family doctor, and an attempt was made to move the elderly parents out of their home by launching an investigation into the retired couple.
The local police then sent an officer to the parents’ home the next day requesting that the mother revoke her driver’s license. The father and daughter both reassured the officer that she would not drive again. However, the police decided to take it one step further by suggesting that the parents’ vehicles be disposed of. The rescue squad showed up on the same day as the police and found no issues with the mother when they checked her out. When the family doctor was notified, the APS suggested that the mother undergo a psychiatric evaluation. All of this left the daughter with her hands full when she was coming to visit a few days later. Instead of spending quality time with her family, she would be making every effort to fight for her parents against the state, fronting for guardians who benefit greatly from senior incarcerations and asset sales.
The first thing she did was take her mother to a local neurologist for a psychiatric evaluation. Although she passed with flying colors, APS still came to their house later in the day. They did not feel that it was safe for her to live in her own home, contrary to what the doctor and the family believed. This undesirable encounter prompted the daughter to make a visit to the law library, where she was advised to buy a no trespassing sign and inform the local police of the posting. After she bought the sign and went to the police station, she discovered something even more appalling.
A police officer at the station called APS to inquire about her parent’s history. Instead of the one aforementioned report, the daughter found out that APS had filed five reports on her parents. A missed dose of medication and forgetting to use the shower were reported as horrific lapses. Worse yet, one of the reports filed mentioned a fire taking place at her parents’ house. The actual event was a cooking incident where food stuck to the bottom of a cooking pan and turned black. Nevertheless, the parents’ aides still reported it to APS, which lead to another false report. In truth, the fire department had never been called.
After all of this came to light, the daughter decided to take action. She called the Massachusetts Department of Aging to file a complaint, and she was given a contact at APS. The daughter asked her brother to get involved, and he decided to write a letter to APS threatening legal action against the agency if they continued to harass the family. Three days later, APS contacted the family stating that their case was closed. Not every family is so lucky.
In the face of negative publicity, some state governments have taken steps to deter guardianship abuse. Nevada, where the North family’s case took place, has become more aware of problems and has acted quickly, even before The New Yorker article appeared. In 2017, the Nevada Supreme Court created a Permanent Guardianship Commission that includes a Guardianship Compliance Office and has drafted the Protected Person’s Bill of Rights. The Nevada Attorney General’s office launched a task force between his office and local agencies to investigate and prosecute any cases that involve the abuse and exploitation of senior citizens.
James Hardesty, a Justice on the Nevada Supreme Court and chair of the Nevada Supreme Court Permanent Guardianship Commission, is pleased with the results of the reforms. “Over the past year”, said Justice Hardesty, “we have seen dramatic improvements with how guardianship abuse cases are handled,” giving potential wards the right to an attorney, creating a new set of more productive statutes for both child and adult guardianships, and staffing the Guardianship Compliance Office with an accountant to review each estate. The amendments proposed by Justice Hardesty and the Commission were passed unanimously in Nevada’s 2017 legislative session.
Nevada’s measures are being considered in other states. But, as in Massachusetts, the issue continues to be unreported in many jurisdictions. While listening to the Massachusetts family’s story, it became clear that they were not the only ones who was dealing with this issue. The doctor who gave the mother her psychiatric evaluation had seen hundreds of cases like hers and was completely beside himself when he had yet another government sanctioned evaluation to complete. The family, now attuned to the problem, discussed similar cases that her friends were dealing with in other states.
It is clear that more judicial and legislative changes are needed. In some cases, basic estate planning whereby a living trust appoints a guardian when needed can be used to limit state intrusions. Absent such foresight, given the actions already taken and the actions yet to come, there is hope that Americans can come together and make changes in order to protect our elder family members and friends from these types of guardianship abuses.
Theodore Z. Sutton is a recent graduate of the University of Utah and will be attending the University of Wyoming Law School in the Fall of 2019. He is currently involved with legal research in Reno, Nevada.
LLC Strategy Tip for Protecting Against Guardianship Abuse
Consider holding your parents’ assets (brokerage accounts, real estate and/or personal residence) in one or more LLC’s. Your parents will serve as managers of these LLC’s. However, if a guardianship is later imposed, a specially drafted Operating Agreement can provide that the children or a trusted advisor (and not the state or any of their appointees) become the managers. From this position your successor manager will be better able to fight the guardian’s attempts to improperly sell assets. You may contact Corporate Direct at 800.600.1760 or at www.corporatedirect.com for more on this strategy.