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Abusive guardianships and their liberty-looting, property-poaching nature

Civil asset forfeiture, action by which the government confiscates a person’s property without charging that person with a crime, is one current threat to property rights. Another property hijacking avenue occurs through guardianships – also called conservatorships in some states. Guardianships are probate instruments that limit, if not suspend, many adult basic rights. While not inherently bad or evil, their growing abuse poses a threat of which many Texans (and others across the country) are unaware.

Guardianships are designed to be a pre-emptive, protective measure to ensure the well-being of a person and/or their property. While in the past this status was more largely associated with minor children, longer life spans are bringing more elderly and developmentally disabled people into this mix while other adult Americans find themselves targeted – sometimes under quite questionable circumstances – based on real or alleged determinations of incapacity attributed to psychological or emotional issues, physical injuries, substance abuse, etc.

Though often perpetrated by a combination of disgruntled family members, wannabe heirs and members of the legal industry (lawyers, judges and other court-related personnel), financial professionals from CPAs to banks sometimes play a role. Stories consistently surface in which Adult Protective Services (APS) employees, professional guardians, social workers as well as medical personnel responsible for evaluations (physical and psychological) and even proprietors of facilities that house incapacitated or disabled individuals are involving themselves in questionably motivated guardianship cases. Call it asset looting, property poaching or estate hijacking – any of these parties can (and too often do) derive direct or indirect benefit from abusive probate actions.

Several recent Texas cases illustrate just how these actions occur and the dramatic impact they bring.

In late February, FOX 4 Dallas-Fort Worth began reporting on Charlie Fink, an 85-year-old man reportedly being held against his will at Methodist Richardson Medical Center. Kenny McIntosh, a neighbor who along with his wife watch out for Fink, contacted the media after an unexplained delay in his hospital release.

Kenny contacted FOX 4 about Fink, and Wednesday, Fink called us. He said he thought he was going home Monday.

“Now here it is, Wednesday, and I’m still here,” said Fink. “No, I stand corrected. They put me in a mental institution Monday night.”

Kenny says a frustrated Fink called him Monday.

“He called me and said, ‘I haven’t left yet; Adult Protective Services lady came in here and told me I wasn’t never coming home,’” said Kenny.

Fink’s 82-year-old wife was taken by Adult Protective Services earlier this month after someone called the group, concerned Fink could no longer care for her.

Fink’s attorney says he doesn’t know why Fink is still in the hospital and believes Fink is there involuntarily.

The attorney also says someone must have said something to cause the hospital to want to keep Fink.

In predictably citing privacy concerns, the hospital and APS offered no explanation for the situation.

At a March 21 hearing, Judge John B. Peyton, the Dallas County Probate Court associate judge and probable cause master for mental illness, allowed an APS emergency protective custody order to remain in place while Fink is held in custody for another 30 days as the state moves forward with a guardianship.

At the hearing, an “expert” state witness testified that Fink’s poor performance on a battery of tests indicated his inability to care for himself and that he would be in danger if allowed to return home.

Per Fox 4, testimony by Dr. C. Alan Hopewell offered “that while Fink could handle minor physical and mental tasks, he was not able to function independently and that he had substantial cognitive impairment.”

That finding was reportedly in contrast to another state psychologist and the findings of Dr. William Tedford, the former chair of psychology at Southern Methodist University who also evaluated Fink, and found Fink as having no issues that would prevent him from independent living in his home.

“We’re extremely disappointed with the findings by the judge,” Fink’s attorney, Lysette Rios, told Fox 4. “We didn’t believe there was enough credible evidence by any doctor that indicated Mr. Fink lacked capacity. The records speak for themselves; you’ve got two reports out of three indicating he has none to mild impairment, and then one report by a doctor who didn’t include half of his objective findings in his report.”

Per Fink, the state’s witness was untruthful in that his court testimony did not match comments allegedly made after conducting the psychological test at the Arlington nursing home in which Fink is confined.

“We do feel that Mr. Fink lacks capacity,” Shari Pulliam with Adult Protective Services told the station. “We’re concerned for his health and safety in his own home living alone. We are also now concerned with financial exploitation, which is huge in elderly populations. We want to prevent that before it happens, and that’s what we are doing here today — trying to make sure that Mr. Fink is going to be safe financially.”

Pulliam is correct about financial exploitation. It happens, but with both the old and the young, estates of great proportions and those of more modest means.

The power seated in a guardianship is massive yet one need not have massive wealth to be an appealing target for an abusive guardianship. The pursuit of assets is an obvious motivation, but wards without assets can have “headcount” value when used by government or its allies to derive direct and/or indirect benefit that comes with using wards to fill the rolls of taxpayer-funded programs.

The value of Fink’s estate is unknown, but his situation certainly offers opportunity on either front.

An elderly Richardson couple, Michael and Eugenia Kidd, were similarly detained in 2009 by Collin County Probate Judge Weldon Copeland. The couple was ultimately released after their case received significant media attention.

And the case of Dorothy Luck certainly reminds of the wealth motivation. In March, Tarrant County Probate Judge Steven King, a former presiding judge for Texas’ statutory probate courts, released Luck from a guardianship that has diverted an estimated $1 million or more from her estate.

Tarrant County’s two probate judges, King and Pat Ferchill, have presided over a series of questionable guardianship cases which have involved an identifiable group of court-associated employees, social workers, attorneys and bankers.

Fort Worth Weekly reporter Jeff Prince has covered some of these cases. In a September 2013 article entitled Grabbing the Purse he described Luck as a “neat and still-elegant woman has always kept a close watch on her finances, and she believed she’d have plenty of money to last until the end of her life.”

Prince wrote:

Dorothy Luck was enjoying the fruits of a lifetime of hard work: a well-cared-for house, a good-running Cadillac Deville, a million dollars in a bank account, another million in annuities, and a monthly income from investments and Social Security. A widow with no children or close relatives, she remains active and relatively healthy at 85.

A 2008 dispute over assets co-owned by her late husband, Leskie, and his brother that were in trusts managed by Luck with the brother’s children as beneficiaries brought Luck to the probate court’s attention.

These relatives initiated legal action against Luck. Their goal had nothing to do with her competency, it was simply to demand an accounting of the trusts.

King, the judge presiding over the lawsuit, initiated the guardianship against Luck. She was unwilling to settle the lawsuit because she believed her management of the trusts was appropriate. Described as being ill and combative at a deposition, she verbally sparred with David Bakutis, an attorney representing the trust beneficiaries. At a point in the proceeding, Bakutis threatened her with a guardianship.

Soon thereafter, Fort Worth attorney Monika Cooper filled out a guardianship referral form in which she listed herself as Luck’s friend, though per Luck, their contact was limited to a one-time visit from Cooper during which the attorney told the older woman to attend the deposition.

Cooper was employed by ShannonGracey, a prominent Fort Worth law firm with strong local ties. Another of the firm’s attorneys, Lisa Jamieson, was later appointed by King to represent Luck in the guardianship case. In his article, Prince notes that Cooper’s referral form is not listed in the official court documents, but was provided to Luck as part of other case-related paperwork.

As the guardianship was pursued, Luck was found competent by not only her own doctors, but by other doctors in court-ordered examinations. Per Prince, only after Ross P. Griffith, a King-appointed attorney tasked with investigating Luck’s potential incapacitation, asked doctors for clarification was the diagnosis changed to “partial incapacity.”

A final accounting of Luck’s assets will illustrate the financial incentives a government-sponsored guardianship can offer. Luck has regained access to her assets though King did require they be put in a trust with an outside trustee named.

“Some kid can steal an apple and get 10 years in jail, and yet this court can come and do this to me?” Luck told Prince. “Where’s the legal system going? It’s pitiful.”

While these cases involve elderly adults, it’s always important to understand risks also exist for younger adults.

Additionally, articles extolling the dangers of financial exploitation (often of the elderly) abound with family members, caregivers and bottom-feeder scammers often named the culprits. Granted – some guardianship situations are created by disgruntled family members or wannabe heirs, but legal industry intervention can and routinely is also a catalyst. With attorneys, particularly estate planning attorneys, regularly writing these articles, that aspect is rarely discussed.

Today’s world offers instances of this legal mechanism increasingly being abused yet with the legal industry’s powerful position within government and public policy circles, political will to substantively address this hijacking of American civil and property rights is tepid at best.

A 2013 bill introduced by state Rep. Stephanie Klick, R-Fort Worth, sought to strengthen probable cause considerations with regard to guardianship pursuits, but was denounced as unneeded by legal industry practitioners including several prominent probate judges.

Of his alleged incapacitation and testimony he believes was falsified, Fink said, “If it’s against me, if he tells the truth and the judge rules against me, I can take it, but don’t rule against me on account of lies. Don’t do that on account of boldfaced lies.”

And Dorothy Luck noted, “For a judge not to give me a voice and then try to strip me of everything I’ve worked for since I was 15 years old is the most preposterous thing.”

After his release, Kidd repeatedly warned how this can happen to anyone. Nearly five years later, Fink and Luck know that reality yet many people remain unsuspecting.

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