The legal system is stacked against your grandparents

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On Friday I wrote about the film I Care A Lot and the type of utterly maddening and downright evil elder abuse it depicts. Since then I still haven’t stopped being fucking pissed off about it in a way that few things have gotten up my ass in as long as I can remember.

In the meantime I heard from a couple readers on the matter.

“My grandparents were essentially bankrupted after a decade (!) of legal proceedings,” one said. They “ultimately won out, after they were dead, but there was nothing left and nothing to do about it… There is definitely a whole legal industry grift built on top of this.”

“The bit players are not nearly as sophisticated or ‘sexy’ as the movie,” they added. “It’s just small time thugs that found their scam: they’re ugly, mean and not even that bright. But the legal system is stacked against your grandparents.”

“I used to be an investigator of adult abuse, neglect, and exploitation for the state of Missouri,” another told me. “Some of the things that happen to our elderly are atrocious. I quit working there in December 2016 and I still have ongoing court cases for financial exploitation. We had a local public administrator who was in prison for using her wards to commit Medicaid fraud, and I know of others who have had their social security money used fraudulently by horrible guardians.”

A third reader happened to have a lot of experience looking into these types of cases in their role working for the state of Arizona.

“The thing that fucking sucked about this movie was the movie part of it. Making it seem like it takes a sexy criminal mastermind in a cool and sleek office with elaborate conspiracy networks of various corrupt care providers to do all that shit to vulnerable people,” they said.

“It doesn't. Most of the harm happens very plainly, very boringly and incrementally, by shrewd everyday people who know how to make their billing look benign at a glance. They do shit like chip off a few hundred bucks here and there from multiple people, so it adds up over time. They submit their work to the court. Courts approve the submitted paperwork because they don't care or the staff are overworked or both, the judge doesn't look too closely because no one is actively dying in front of them and someone else told them the fees look reasonable so it's fine, and it just kind of pitter-patters on under the radar for the most part.”

They went on:

“I’ve seen cases where guardians are drugging their wards, institutionalizing their wards, executing their wills not according to the wishes of the ward but just kind of where the guardian wants the money to go, and there's a paper trail along the way before anyone with oversight gets to them where the courts are just rubber stamping it all through and it's all been right there in plain sight. They approve it for years before there is a complaint that points investigators in the right direction. Then they spend so much time unravelling those years worth of shit for one guardian/business that everyone else doing similar garbage continues to get away with it because the state can't do 500,000 investigations at once. It's depressing and a bit Sisyphean.”

“Anyway it isn't sexycool at all, the mafia is not involved, most people aren't expressly, conspiratorially evil about it, they are largely terminally apathetic actors all making tiny seemingly insignificant decisions along the way that feed a beast. That doesn't make a fun movie though and I get it.”

I wanted to learn more about how elder abuse like this happens so I called up the reader in question to explain what they’ve seen over the years.

Generally speaking is the type of thing shown in the movie and the New Yorker piece stuff that you’ve seen happen before as well? I’m sure it’s not as dramatized, as you mentioned, but is it somewhat true to reality?

Yes. The actions taken certainly do and can happen all the time. I’ve seen it. Arizona has had a couple of really big ones that have gone much that same way.

It’s kind of a passive thing in the courts as opposed to glaringly evil.

That’s what it looks like. Every time you look at one of these cases where there’s been a complaint, by the time it gets to a disciplinary judge who decides what to do with a fiduciary’s license, you just see how things were rubber stamped for years. They submit their financials to the court, the court says yeah that looks reasonable, then they move on. Every year they’re supposed to submit reports to keep the court informed about the status of their wards. As long as the financials look reasonable on paper there’s no reason not to sign off in their opinion. It’s very rarely a conspiracy where a fiduciary or guardian has a judge in their back pocket who’s approving everything and they have a laugh about it afterwards. It’s really just procedural stuff that gets through, completely legally, when you’re looking at it from a bird’s eye view.

That’s almost worse though isn’t it? At least when it’s a mustache twirling villain we can have some hope they’ll get caught. When it’s just this banality of bureaucracy type of thing it’s scarier.

Oh yeah. By the time it gets to an investigation and someone has submitted a complaint they often should have submitted it a long time ago. But they don’t. They wait for something very glaringly obvious. Even some of the stuff they do, when it gets looked at, you can’t do anything about it because it’s totally legal. They can charge money to the estate to do what they want.

For the most part when you look at these investigations it goes like somebody tipped off a guardian that this person was in the hospital, and they might have talked to a psychiatrist while they were there. Then the fiduciary is like, oh, they must have mental problems. So they take it to a judge and the judge will appoint them as guardian depending on the circumstances. It just starts off as something as simple as that. An older person, who is totally in their right mind, can call a fiduciary service… We’re the only state that licenses them through the courts. California licenses them too in another way. Basically they call a licensed fiduciary company thinking that since they’re licensed through the state they must be legit and above board. Some lucid competent elderly person might just want someone to help them manage their money because they don’t want to do it anymore. It’s annoying to do that when you’re older. So now the fiduciary has an insight into how much money this person has, and they can come up with any reason they want to go after a full guardianship, having had a peek into their financials. It starts off above board then they worm their way in from there.

Then they can do things like, ok, I’m your guardian, you called me with a question about what I’m doing with your money, and I can charge whatever I want for that call?

For sure. They can charge pretty much whatever they want. We don’t have a limit on what they can charge per hour here. They charge for anything, especially guardians, they charge for filing paperwork, preparing paperwork, visits… all stuff you would charge for because it’s your time involved, but that’s how it adds up under people’s noses. An hour’s worth of work here and there that they didn’t need to charge for necessarily adds up over the course of months and years. By then the estate or the person has paid out for hours of menial work that didn’t need to be done. Then you multiply that across the guardian’s business, they might have 30-50 active wards, and that’s a lot of money every year.

Do you think the people who do this think of themselves as getting one over, or do they think, well, this is what I’m legally allowed to do, I’m not an evil person, I’m just doing what the law says I can do.

The latter. I’ve sat in on some of the more dramatic cases when they’re being argued. The fiduciary will be there with their attorney, and for the most part I think they’ve convinced themselves they're doing this in the best interests of the people they’re taking care of. Obviously that’s not the case, but they’ve deluded themselves into thinking they haven’t done anything wrong. They think, you know, these are people I’m in charge of so I’m going to take the money and do what I want. Or they talk themselves into thinking the people are incompetent and can’t make their own decisions. We can’t know how much they were planning ahead of time, but they do make the case that all of this is legal, so why wouldn’t they do it? They’re a business. They’re an hourly service.

Is this happening in all states as far as you know? Or is there something unique about Arizona?

It is pervasive so far as I know. It’s hard because it’s state by state and varies so much, but for the most part if they can do it they’re going to do it. I think that’s the mindset of running a company. You want to make money so you’re going to go through every legal avenue you have to do it. Here the state has the benefit of saying give me your billing so it can be looked through line by line. I don’t know how that’s regulated in other states, or if it is at all.

Is there a particularly egregious case or two you’ve seen?

The complaints are public when they’re done. There was one that was investigated for two years. There was this duo who wormed their way into this woman’s life who was perfectly competent. She had a Phd in psychology, she was just kind of older and had a power of attorney helping her. She had all her faculties. She went to a hospital for something unrelated, and someone allegedly tipped off a judge or tipped this fiduciary off that she spoke to a psychiatrist when she was in the hospital and so she wasn’t mentally competent enough to take care of herself anymore. So this fiduciary duo embedded themselves into this woman’s life and took control of all of her finances and all of her things and just systematically abused her over time off of one tip that was never even substantiated. If you read the report it never even says who tipped them off. There was some circumstantial evidence that suggested it was the fiduciaries themselves who made up the tip and claimed it was somebody else. It just went on for years and years. The family was trying to get control back but they couldn’t get it. Once they have that guardianship they can do whatever they want, decline visits, decline talks with the family, all the while paying themselves out to defend their right to be the guardian of this particular person. Their license was revoked after all of that. It can be referred up to civil or criminal court after that. But revoking licenses like that is rare.

And if anyone even fights back it can take so long the person might be dead by the time it’s over.

Yeah all the time. Halfway through an investigation the ward might die. Maybe even before the complaint gets officially started. By the time it gets investigated the bulk of the damage is done and can’t be undone.

That adds another insidious layer to it. I’m sure these people know that, and that’s why it’s worth the risk, that by the time anyone comes poking around it will be too late.

For sure. And that’s why they keep the family out of it. The family just wants to visit their loved one, and they end up fighting with the fiduciary all the time and the fiduciary dangles it in front of them. The family never knows if something bad is going on because of all the red tape surrounding their loved one. By the time it gets investigated it’s hundreds of pages of a timeline of slowly creeping abuse that rises to some horizon event that finally tips off the government to step in and take a look.

So they can literally box out the families? Say, ok, an elderly person saw a psychologist. I’m going to use that as a premise to convince a judge to put me in charge of their money. Once I’m their guardian I can keep the family away? That’s insane.

It is for sure. In another case here, even if the ward is in a home of their own choosing, the guardian can make the decision to move the ward into a locked down facility. Then the family really can’t get to them. They could even start in a home that they like, but the guardian can just decide the person needs to be locked down and you can’t see them anymore.

Jesus Christ.

It happens in reverse too. You can have a guardian or fiduciary taking care of a person who is not competent, but they will argue they are competent so they can argue in front of a judge that they were in their right mind when they signed over all their rights to a fiduciary or guardian. But there will be medical history that suggests that person has had worsening dementia over the years. So it’s not just competent people being taken advantage of, but also people that cannot make decisions for themselves.

There’s so many angles to this scam. You can get it coming and going both ways.

Basically whatever fits the narrative. Ultimately the guardian is the one taking notes and documenting how they’re taking care of this person. So if they need to make things look a certain way so a judge signs off on it they’re going to write it up that way because there’s nothing stopping them and not a lot of measures in place to audit that as it’s going on.

Is this something that anyone cares about stopping at all as far as you’re aware of?

Not that I’m aware of. Governor Doug Ducey’s push here has actually been to deregulate a lot of license requirements we have in the state. He started with other licensed professionals like hairdressers and stuff like that. He’s got this weird thing with hairdresser licenses. He wants to bring business into the state and he doesn’t want licensure to be a bar to that. Not that they’ve turned their attention to fiduciary licensing yet, but if anything he and the legislature would like to lower the barrier to entry into these professions. And there’s not much of a barrier to begin with.

That makes sense for Republicans that would like to see as little regulation for business as possible.

For sure. Arizona’s government is batshit insane too. They don’t get a lot of notoriety nationwide, but they’re nuts.

One Arizona politician certainly got a lot of notoriety this weekend. What do you think about Sinema?

She’s just terrible man. It sucks. I have friends who put so much work into her campaign knowing full well she wasn’t going to be who they wanted her to be. But we thought at least she wouldn’t be a full blown Republican.

So what else do you want people to know?

The problem is there are only a few people working on looking at these types of things. They don’t have the ability to keep tabs on every person who is licensed and running this sort of business. They try but it’s impossible. These investigations take years and years and meanwhile all the little actors are keeping on, especially in the remote counties that have even less oversight than the central counties. They might not even have licensed fiduciaries to do the work at all and then a judge is forced to appoint an accountant or something like that just to help manage wards assets.

Some of the biggest issues that pop up are the littlest things. When a fiduciary takes over for a ward they also get all of their assets. So they have to marshall all those assets and inventory them and deal with them properly, whether that’s to sell them in an estate sale or store them away for later.  But you have these cases where little things happen. Fiduciaries will sell off assets to people they know, which they’re not allowed to do. Or money that’s supposed to go one place, the fiduciary will take it and put it somewhere else and kind of stretch the meaning of the will to substantiate that decision. There was a case where one fiduciary gave a sedative to one of their wards to get them in a woozy state so they’d sign over their house or agree to go to a home or something.

Another thing a fiduciary will do if they have a resistant ward is dump them off at a facility with none of their things. Once they’re there they can’t leave, and they didn’t even get to take anything with them from their house. All that stuff then belongs to their guardian anyway.

You also have double dealing, where a lawyer will work with a fiduciary and they're both billing the estate at the same time. Just thousands and thousands of dollars of paperwork they’re doing. If a court takes a look at paperwork and says it’s done wrong, the fiduciary will try sometimes to charge the estate to fix the paperwork they didn’t do right in the first place. It’s all over the place really. It’s all Hell World.

So those are all things you’ve actually seen documentation of?

Oh yeah. These are just recent examples I’m thinking of off the top of my head. We see it all the time. I’ll just say that there’s a lot of flexibility in the code we have because the code isn’t very specific. Anything that isn’t explicitly stated, you can interpret it any way you want. If you have hundreds of thousands of dollars in your ward’s money, you can invest it. That’s ok if you want the trust to accumulate interest, but you have to invest it prudently. Ok, what does prudently mean? That can become a whole thing where a judgement call has to be made. Again, it all happens, and the damage is done by the time the state makes a decision.

I’m gonna take some old lady’s house and invest it all in dogecoin.

Right. There’s nothing in the code that says you can’t do that. It just says it needs to be invested prudently, which is subjective in the end.

That movie as I said really pissed me off. I haven’t thought about this stuff much previously. My parents aren’t really elderly yet. Obviously I was aware that elder abuse exists and is a problem, but for some reason this whole aspect of it has made me angrier and more upset than a lot of things in recent memory. I think it reminds me of police violence. Ostensibly the police are the ones we entrust to protect us, even though we know that’s bullshit, and so when they kill someone it seems so much worse. These are the people the state has agreed are going to take care of elderly folks, and they’re not murdering them, but they’re sucking everything they have out of them. It strikes me as that same type of violation of the civic pact.

Definitely. Every time a disciplinary judge writes something up on this it starts out like we license these people because we want people to trust them. We want them to see they are licensed, so they’re safe, so they can give them their money and know they will take care of them. It’s always framed as a violation of civic trust when they do this stuff. It sucks.

But also the [bad actors here] are not famous, they’re not celebrities, they’re just people who are working their nine to fives, and what they do is death by a thousand cuts to these people in their eighties and nineties who really don’t need to be dealing with this bullshit and don’t have the energy to do it. They just want to be enjoying the rest of their lives. It’s just so shitty. Imagine the last ten years of your life where a fiduciary is sucking thousands of dollars out of your account every year then you run out of money and can’t do anything.

I know there have been some big cases around the country where people like this get in trouble, but have you seen any real consequences for some of these fuckers or is it usually a slap on the wrist?

In the most egregious cases the county attorney will get involved. The news sometimes will get on top of the really big ones. All of the complaints and resolutions are public on the court website. For the most part the violations are procedural in nature and they end with a slap on the wrist. But that can mean the ward might not have been getting adequate medical care for six months or not have had their bills paid and something gets shut off. And the response to the guardian is, well, don’t do it again.

What advice do you have for people with elderly loved ones who might be inching toward this?

I wish more families knew they have more power than they realize and that they should look into the rules about becoming a guardian in their respective state. Yes, finances are hard, and you can hire someone to help you with those, but handing over guardianship, with the way this is set up, should really be a last resort. Especially to private companies. Look into it. It’s better for you as a private citizen to go through the training, if your state offers it, to become a guardian for your loved one rather than assuming you can’t do it. Honestly it’s not that hard to become licensed here. It doesn’t take a genius. I think a lot of people don't realize they can do that for their loved ones. It doesn’t have to go to somebody else.

Anything else you want people to know?

To reiterate it’s not always explicitly evil. A lot of this is the courts too. You have a court accountant that is supposed to look over these financials and they are just overworked and say ok sure and pass it on through. A lot of it is procedural boring stuff that is easy to miss until it becomes a problem. If you have somebody being taken care of by a fiduciary or guardian, be aware of those little costs. They don’t look like much, but $50 here and there can become $5,000 over the course of a year.