Legal Battles over Parental Guardianship

Legal experts are increasingly seeing bitter disputes when children of elderly parents assume legal guardianship. Bitter custody battles have occurred over finances and real estate. It's legally tricky terrain that experts say can be avoided with a some foresight.

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NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

Last month, New York City tabloids splashed the life of grand dame Brooke Astor across the front pages. A bitter family dispute erupted when her grandson sued to have his father removed as the legal guardian of the 104-year-old former socialite. The suit argues that her medical care was inadequate to say the least, and it questions financial and real estate decisions made by the guardian. Her son disputes the charges. It's a particularly sensational story because of the celebrity and the money involved, but it highlights a trend that's been growing over the past decade.

Reliable numbers are hard to come by, but it appears that the number of guardianships is up, and the number of disputes is way up. One lawyer described some of them as will fights while the parent is still alive. And there have been cases of so-called parent snatching where one sibling moves an elderly mom or dad to another state to get control over them and their assets. There are different laws in different states, but guardianship is a legal term in all of them. A court declares an elderly person incapacitated and appoints someone to make financial, personal and health decisions on their behalf. It's legally tricky terrain - the critics say it can reduce an adult to the status of an infant - and one that can be avoided with a little foresight. Later, following the decision to recall Marines involuntarily to service, we'll talk with an historian about the particular stresses that the Iraq War has put on the Marine Corps - and your letters.

But first, guarding the elderly. If you've been involved in a guardianship case, what was your experience? If you've made arrangements for you or your parents' care in old age, did you explore alternatives? Our number here in Washington is 800-989-8255, 800-989-TALK. E-mail is talk@npr.org.

Dee King was involved in a family dispute over guardianship of her father. She joins us now by phone from her office in Prospect, Connecticut. Good to have you on the program today.

Ms. DEE KING: Hi. Thank you, Neal.

CONAN: And I understand that this nightmare began when your father, who lived on Long Island at the time, came to visit you in Connecticut.

Ms. KING: Correct. That's what happened.

CONAN: And he got sick.

Ms. KING: He was sick, and was in the process of rehabbing his house on Long Island so I could make it a safe and secure, maintenance free, nice home.

CONAN: Mm-hmm.

Ms. KING: Environment to go back to, and then I thought he was very ill. I brought him to my home in Connecticut, and unfortunately got involved in the probate court system here.

CONAN: And how did that happen?

Ms. KING: Well, I had caretaker stress, so I have to admit that I was not - I was falling down. I listened to my sister, put my dad in the hospital in Waterbury. They were quick to proceed to tell me that my father was going to be declared mentally incompetent. We went to a probate hearing within less than 10 days later.

I had a sister that flew in from California. She wanted to manage my dad's funds. I was his health proxy, which I want to continue doing. And the judge had the proper opportunity to say, well, in this case, I'll appoint a third party. He appointed a conservator, and my father was taken away from me.

My father's life was diminished, and I am so sad. And my father's been completely compromised and traumatized by this whole remarkably, unbelievable experience.

CONAN: At one point, weren't - wasn't his house to be sold to...

Ms. KING: Correct.

CONAN: ...for money to pay the legal fees of his guardian?

Ms. KING: Yes, she wanted approximately - for keeping my father locked up like a dog, I must add - $42,000 dollars for herself. She just kept incurring more fees, and I had the legal battle going for 10 and a half months. During that time, my father was locked - I have to tell you first of all, he went in highly cognizant, alert, oriented, and this woman took him and had him locked among completely diminished people. Why she did that I will never know. At the time, I kept asking her specifically, because the state law says you're supposed to find the least restrictive environment...

CONAN: Mm-hmm.

Ms. KING: And she put him in this facility where they actually - in my own personal opinion, I think they just actually use chemical restraints. They completely decimate people by disorienting them, locking them away from others. There's no mental stimuli, no physical stimuli, and then they just become decimated, and I'm sure more and more people die.

I think it's going to be the baby boomer's major scare, and I've had people write to me from all over the country. And it's a sad thing. It's a national problem. I witnessed it firsthand. In my case, it's more like something from The Twilight Zone...

CONAN: Yeah, and...

Ms. KING: ...the things that I experienced.

CONAN: And we read about Brooke Astor in the newspapers. Your father was an honest working man, had a little bit of money put aside. I assume that's gone, but nevertheless, this wasn't an argument over millions of dollars.

Ms. KING: No, it wasn't. But the woman that was named as his conservator - I don't know if I'm allowed to say that - but she, in my opinion, had a major abuse of authority. She treated my father like a prisoner of war. She traumatized him.

At one point I kept fighting, and I brought my father - when I was allowed visits outside of this facility, which she actually she had sanctions against us over and over and wouldn't let my father leave. They forced him to take medication or threatened him that he couldn't go out.

At one point, I took him on a visit to New York. He said he had chest pains. I put him in a hospital. This woman came all the way down from Connecticut. Against legal - the medical advice, my sister flew in from California, and they dragged my father back against his will to Connecticut.

For two and a half months after that, they kept my father locked up in this place - no freedom, no ability to go out. I had to visit my father - I was allowed only one hour a day. They had sometimes two or three nurses, and I have no idea who was watching the real patients there.

CONAN: Hmm.

Ms. KING: While they're sitting and watching us, my father said they're trying to break my will down. They scrutinized every move. I have to tell you, when my dad went in - my father's highly intelligent and, as I said, alert. He said, Dee, if I stay here, I'll end up like these people with my tongue hanging out of my mouth. And they systematically decimated him. I think they euthanize people in America, and it's a scary proposition.

CONAN: Yeah. Eventually, two volunteer lawyers came to your father's aid, and the probate court's ruling was overturned - the guardians removed. So is your father doing okay?

Ms. KING: He's traumatized, and it's going to be a long time to build up. The judge was the most remarkable - I think he was a godsend. It was Judge Gormley of the superior court overturned the lesser court, and the two most remarkable attorneys: one, Veronica Halpine of the Greater Hartford Legal Aid whom I love and adore, the most selfless human being and an incredible attorney - and John Peters of Avon, who is a gentleman that has tried some larger cases. And they worked together, and John was the lead attorney. And they restored my father's freedom, and it was a remarkable decision. It was something I will never forget as long as I live.

CONAN: Well, I'm glad your father's doing better, anyway.

Ms. KING: Thank you. But it's something we have to all really be aware of and scared, because we have to change the laws. Can I tell you my Christmas wish list?

CONAN: Very quickly if you would.

Ms. KING: Okay. Legislators, change the laws. We have - conservators must have a standard. They have to take licensing and follow it - watchdog groups. And we have to have checks and balances, otherwise this will continue.

CONAN: Dee King, thanks very much. Appreciate your time.

Ms. KING: Bye.

CONAN: Dee King joined us from her office today in Prospect, Connecticut. Terry Hammond is executive director of the National Guardianship Association. He's with us now from the studios of KHEY in El Paso, Texas. And it's good of you join us today on the program.

Mr. TERRY HAMMOND (Executive Director, National Guardianship Association): Good afternoon, Mr. Conan.

CONAN: And I understand that Dee's story is probably not typical, but nevertheless you do read about stories like this.

Mr. HAMMOND: Yes. In fact, they are becoming more and more frequent. There have been stories in The Wall Street Journal and The New York Times and The L.A. Times, The Dallas Morning News - all over the country - on guardianships that are intended to be for the benefit of an elderly or disabled person going bad. And when I hear Ms. King's wish list for better laws and standards and certification of guardians, I actually could not agree with her more.

CONAN: Mm-hmm. I know that there have been a number of states that passed new laws just in the past year or two.

Mr. HAMMOND: Yes, sir. It is an ongoing struggle to get the state legislatures to appropriate the necessary funds to ensure that you do have qualified judges, well-trained judges, adjudicating these cases - that you have qualified guardians who are following standards. And one-by-one, state-by-state around the country, these improvements are being made, but it is a very slow and tedious process.

CONAN: Is Dee King right also to say that this is going to be the nightmare of the baby-boomer generation?

Mr. HAMMOND: Well, you know, estimates indicate that by 2030, we're going to have almost 72 million people over the age of 65. And by 2050, we will have 16 million people in this country with Alzheimer's disease. So the demographics are there. The bulge is there.

I think what Ms. King has not highlighted is that for every bad guardianship, there are hundreds of guardianships that are done well - family members are not fighting, there's no contest, and the adjudications are very routine and very appropriate. But as you have money that's at issue in these cases, as you have family dynamics that are not resolved - we will see an enhanced number of these cases, unfortunately.

CONAN: Mm-hmm. Let's get some listeners involved in the conversation. 800-989-8255 is our number - 800-989-TALK. Our e-mail address is talk@npr.org. We'll begin with Janet. Janet's calling us from New Fairfield in Connecticut.

JANET (Caller): Yeah, hi. Hi, how are you?

CONAN: Very well, thanks.

JANET: I had a similar situation to what you're discussing. There are three girls in the family. I have a mother who is in her 80s and emotionally unstable - has always been somewhat and would get angry. But as of last year, I had been the conservator and the guardian. She got angry, and another sister who is - unfortunately has an agenda of her own - convinced my mother to go to the lawyer and drove her and wrote myself and my other sister out of the will.

Now we had basically all pretty much been sharing taking care of her. She lived - she did live alone. There were people coming into visit, and to take her to doctors' appointments and if certainly any emergency situation - mowing grass, things of that nature.

And I - what makes it difficult is she ended up having a stroke in May. So she changed her will in November and is now under the care of this third sister who unfortunately suffers from - she has addictive behaviors and is actively addictive and not very reliable, which makes it a little frightening.

My mother right now has been parked in a nursing home two states away from me. It's over a hundred-mile, one-way drive. It's been very hard to see her, and there is this ongoing fraction in the - fracture in the family. People are not talking to each other. It's a very bad situation.

CONAN: Janet, I hope things work out for your mom and for you and your sisters as well.

JANET: Thank you very much.

CONAN: Thanks very much for the phone call. We're going to be talking about the difficulties and also the benefits of guardianship and also some alternatives to guardianship: foresight, foresight. 800-989-8255 is the number to call, 800-989-TALK. You can e-mail us, talk@npr.org. I'm Neal Conan. We'll be back after the break. This is the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington. We're discussing the perils of legal guardianship. Gone wrong, it can split families and tie them up in court for years. With some preparation, experts say all of that can be avoided. In a few minutes, some of the alternatives to guardianships and how to plan ahead.

But right now, let's continue talking with Terry Hammond, executive director of the National Guardianship Association. And if you'd like to join us, if you have questions about guardianship and how it works - 800-989-8255, 800-989-TALK. E-mail is talk@npr.org. And let's turn to Lisa. Lisa's calling us from Kansas City.

LISA (Caller): Oh, hi.

CONAN: Hi.

LISA: I am in exactly this situation. My mother is severely disabled with rheumatoid arthritis. My father had been caring for her for the last 20 years or so, and he dropped dead about a year and a half ago - just totally shocked all of us. I have one brother who lived pretty close them, and he has unfortunately borrowed many, many, many dollars from them over the years and spent about a quarter of their life's savings.

And after my dad's death, I ran back and forth - it's about three hours south of here - taking care of my mom. I finally moved her here to Kansas City. We have set up - I had their will set up so that, you know, Dennis and I split things. She doesn't have a ton of money. She's got enough hopefully to last her till she's gone. But anyway, my mother is - her brain is fine. There's nothing wrong with her brain. Her body's completely shot, and she - I had to actually talk with her about keeping my brother in her will.

CONAN: Hmm.

LISA: I think she got to the point where she felt like they hadn't done much for me over the years, and my brother had spent so much money of theirs and never paid it back. And I told her that the emotional, you know, trauma that I would suffer if he was cut out of the will would be worse than if he was kept in.

CONAN: Yeah.

LISA: So I have - you know, we got everything set up to where when she's gone, at least he does get something. What she did was she took whatever's left - she took the amount that he took away from that and gives that to me outright, and then everything else is split down the center. But I never - you know, we never anticipated being in this situation. I did have my parents write up wills, you know, to begin with and - but this has been a complete turn of events that I never anticipated.

CONAN: Yeah. Let me bring - ask you, Terry Hammond. Both of our last callers -we never anticipated these situations, yet we're hearing different kinds of stories. Obviously, parents - elderly parents in different kinds of circumstances, either non copus mentus or angry or, in Lisa's case, physically shot but still mentally sharp.

Mr. HAMMOND: Well, you know, a guardianship cannot start without some credible medical evidence of incapacity, and that is in virtually all of the statutes on guardianship. And so I think the first question is are the doctors properly assessing the person, the loved one, and determining their level of diminished capacity?

Secondly, in each of the last two callers - or in every caller so far - we've had family disputes, and the courts are there to address the family disputes. And whatever the court's decision is, there's probably going to be one side or the other that's going to be unhappy and disaffected. We hear conversations here about wills and what's in the will and who's going to get what in the end.

And keep in mind that here we are balancing the person's right - the alleged person of diminished capacity - that person's right to autonomy and self-determination versus protection that somebody wants to impose on them. And that is a very delicate issue to address.

CONAN: And that's awfully difficult for courts and indeed for doctors to decide when is it that you're incapacitated.

Mr. HAMMOND: Well, yes. And, you know, using the word incapacitated - that sounds like kind of an absolute term. But there are many, many cases where a person has capacity to perform many functions, but perhaps in one or two areas their capacity is diminished. And certainly in guardianship proceedings, the courts should be narrowly tailoring these guardianships to maximize the person's ability to make their own decisions and yet give them the protection in those specific areas where they need it.

CONAN: Hmm. Lisa, thanks very much, and we wish you the best of luck...

LISA: Well, thanks.

CONAN: ...in resolving all of this.

LISA: We'll see what happens going forward.

CONAN: Yeah.

LISA: Bye-bye.

CONAN: Bye-bye. Joining us now is Naomi Karp, senior policy advisor at the AARP Public Policy Institute here in Washington, D.C. She's been kind enough to join us today in Studio 3A. Thanks very much for coming in.

Ms. NAOMI KARP (Senior Policy Advisor, AARP Public Policy Institute): Thanks for having me, Neal.

CONAN: And I know that one of the things, one of the alternatives that the AARP has been talking about is modified guardianships to adapt to different kinds of situations. It's not cut and dried. A lot of people are not either incapacitated or not.

Ms. KARP: Absolutely. I couldn't agree more with what Terry just said about tailoring the order to the circumstances of the person. And also that courts really have to understand the subtleties and the meaning of incapacity when making that initial determination of whether the person needs a guardian.

If the person does not meet their state's definition, they are - if the person is able to make decisions, is able to function, then they shouldn't have a guardian. If they have some level of impairment, then, as Terry said, it should be tailored to their level.

Unfortunately, that's the exception rather than the rule. Even though over 20 states have in their statutes a preference for limiting the guardian and all states really talk about least restrictive alternatives, as a matter of practice, judges, lawyers, etc. are used to kind of an all or nothing thing. And unfortunately, that's really to the detriment of the incapacitated person because they become un-personed. They may lose their ability to control finances, to decide where they live, to vote in some states, to get married, and so forth. And those are really pretty severe deprivations of rights. So we have to be really careful.

CONAN: Suddenly, you're back to the status of a child.

Ms. KARP: Absolutely. Back to the status of a child.

CONAN: Now to avoid all of this, there are steps that people can take if they think a little bit ahead and anticipate some of these problems. It may cost some money, it's certainly going to cost some time. It may solve - it may prevent a lot of problems in the future. Tell us about some of those.

Ms. KARP: Absolutely. And the cases that we've hear about today on the show are typical. People don't plan. They may create a will, but most people don't plan. They think they're infallible. They don't think that they'll ever get dementia or have a stroke, and we at AARP and many people in the profession believe that it's very important for people to anticipate that. We are living longer. We are getting more chronic conditions. We need to plan.

So some of the things that we can do to plan and avoid guardianship, because guardianship should really be a last resort in most cases.

CONAN: Mm-hmm.

Ms. KARP: So some of the things that we can do are first of all, we can plan for our healthcare decisions. We can create healthcare advance directives. They're called different things in different states. They may be called a healthcare proxy, a healthcare power of attorney. But essentially, that is to designate someone you trust - whether it be a family member, a friend and so forth - to make your healthcare decisions if you can no longer make them yourself because of mental incapacity, unconsciousness, etc. So those are very, very important.

A second thing you can do is create a durable power of attorney that will cover a whole range of other decisions - particularly financial, property, but other personal decisions. Again, that is something that you can do with or without the assistance of a lawyer.

But you do it on your own. A court is not involved. You pick someone who you trust. You do that when you're still fully cognizant of what you're planning, and you can build in some safeguards in that document. You can require that person to periodically account for your finances. You can require a third party to look over those. So you can try to build in some protections against any...

CONAN: If you pick one of your children, for example, you can require that they provide their reports annually or quarterly or whatever to the other kids.

Ms. KARP: Absolutely, or to an attorney you trust or something like that.

CONAN: Mm-hmm.

Ms. KARP: So that's another important alternative to guardianship. There are other things. There are trusts. There are joint bank accounts where you put, let's say, your child on the bank account so they can have access to your funds if you're in a position where you can't write checks or you can't get to the bank and so forth.

There are money management programs that will come in, either nonprofit or for-profit, come in - you may still be able to basically handle it, but you need a little bit of help.

CONAN: Mm-hmm.

Ms. KARP: They'll come in perhaps monthly or every couple of weeks, go over your bills with you, help you write checks, help you balance your checking account. You're still fully capacitated. You're still able to control it, but you need a little bit of help. So those are some of the alternatives that you can set up in advance.

CONAN: Let's see if we can get some more callers in on the conversation. Let's turn to Nancy. Nancy's with us from Jacksonville, Florida.

NANCY (Caller): Hi, yes. I was calling - I lost both of my parents three weeks apart four years ago. And what I wanted to share was a little saying that my mother had, which is do your giving while your living so you're knowing where it's going.

And she did. My father and mother both set up everything ahead of time and stuck to that to the bitter end. And they had their funeral planned. They had their - and paid for - they had all of their finances designated.

My brother - my sister was made the executor, and all three of us basically made a list of various things that we wanted from their home. And they signed off on all of those things ahead of time. And it was orchestrated beautifully. And to this minute we all are, you know, very close and it went very well. And we miss them dearly.

CONAN: Terry Hammond, it sounds like we could all wish for families like Nancy's.

Mr. HAMMOND: Well, yes. It's exceedingly rare that people have the foresight, as you mentioned, to engage in this kind of planning and to forestall or eliminate altogether a contest on down the road.

Practically speaking, though, we have a remarkable - in our culture - a remarkable ability to believe that we are young, we are vigorous, and we will live forever. And as a result, we end up in these situations where people have failed to do proper planning. Or sometimes, there has been planning done and people - loved ones - do not play by the rules. And it's in those situations where the courts have to come in and resolve the disputes.

CONAN: Mm-hmm. Nancy, we're sorry for your loss, but grateful for the outcome.

NANCY: Thank you very much, and it was a wonderful show. I actually called one of my parent's friends here who is in a very similar situation and asked her to listen today. So I hope she heard me.

(Soundbite of laughter)

CONAN: Well, we hope so, too. Thanks very much for the phone call. Appreciate it.

NANCY: All righty. Bye.

CONAN: Let's turn now to John. John's calling us from Brooklyn in New York.

JOHN (Caller): Yes, how are you? Great show today.

CONAN: Thanks.

JOHN: Right now we're having an issue where my girlfriend's father has a legal assistant - he says he's a lawyer, but we've found out he's just a legal assistant - who has basically taken over everything: house, bills, his properties. Where she's in the process of trying to move back here from Arizona…

CONAN: Is this person a legal guardian?

JOHN: Well, he's made himself, you know, he's made himself the legal guardian. And he's made it very clear that she is not allowed in the house, that she's a health risk.

CONAN: But was he appointed by a court in any form, do you know?

JOHN: I would have to think so. I'm not really sure. We would have to think so only because he has stated many times that he has all this paperwork.

CONAN: Let's turn to Naomi Karp. You're shaking your head. You ought to check this out.

Ms. KARP: I'm just guessing probably not. I think the scenario is not uncommon, unfortunately. We hear many, many stories of caregivers of one sort or another kind of ingratiating themselves with an elderly person who may be failing somewhat, and then exerting more and more influence and perhaps - I mean, I don't know whether this person is doing anything wrong, but in some cases gaining more and more control over the person's finances and decisions in a way that's not appropriate.

CONAN: In which case, what might be the recourse for somebody like John?

Ms. KARP: Well, in which case, first of all one could call the local adult protective services agency which can investigate and see whether there is abuse.

CONAN: If there's money been taken or misappropriated in any way, wouldn't it be a case for the police?

Ms. KARP: Absolutely. One could call law enforcement, get investigation. Call a local prosecutor and try to get that involved. But the other thing in terms of not knowing whether or not there is a guardianship, this family should be able to go to the court, usually the probate court where this person lives and check on whether actually a guardian has been appointed.

While the details of a file might not be public, they should be able to ascertain that. And also as part of the due process requirements in guardianship cases, ordinarily courts would give - whenever a petition is filed, courts would notify family members. So this gentleman's girlfriend should have received notice that there was a court case pending.

JOHN: Right. She never did. And she is the only living, you know, part of the family right now. There's not like anyone else, so it's going to be harder -she wants to get guardianship because she believes that this person's up to no good.

CONAN: Right.

JOHN: I mean, her father's in a wheelchair, can't come out of the house. Yet he won't put him in an assisted living area, which is a very good one. And it's only - I would say 5-10 minutes from where he lives now. So he would be in the neighborhood.

CONAN: But it sounds - John, it sounds like you need some basic investigation to get underway before you pursue this. But good luck.

JOHN: Okay, great. Thanks.

CONAN: All right. Bye. We're talking today about the perils of guardianship. You're listening to TALK OF THE NATION from NPR News.

And once people are in a guardianship situation, Terry Hammond, are there legal recourses? I mean, we saw the awful situation of Brooke Astor and we heard from Dee King earlier about her problems. Are there un-messy ways to try to resolve these kinds of disputes?

Mr. HAMMOND: Well, the guardianship process is inherently legal. And as a matter of due process there should be legal advocacy provided or ordered by the court on behalf of the person alleged to be of diminished capacity. And that attorney needs to advocate for the wishes of the client the attorney's been appointed to represent.

In the case of these family disputes - and I'll add here with regard to Naomi's comment about adult protective services - the incidence of reports of abuse, neglect, and exploitation is up by 20 percent. And the incidence of validations of abuse, neglect, and exploitation is up by 15 percent.

And so there's a lot of bad stuff that is going on out there. And when in some of these scenarios we've heard people don't know what to do, they are suspicious of what's going on, certainly they need to call adult protective services. And, if necessary, go to the court and ask that a guardianship be initiated.

In Texas here, we have a unique statute that actually allows a court to initiate a guardianship for the protection of a person alleged to be of diminished capacity. By the time that people get to the point that they are going to court on these issues, it can be very difficult indeed to extricate themselves from the court process, thus the need for that foresight and advanced planning.

CONAN: And we'll give you the last word, Naomi Karp.

Ms. KARP: Yeah, I also wanted to mention that once a guardianship is in place, if the guardian is acting inappropriately, the courts do have the responsibility for oversight and monitoring of these cases.

AARP just completed a study of guardianship monitoring. And while many courts are doing a great job, we have found that, unfortunately, many are falling down on the job. About 40 percent of our respondents said no one in their courts is assigned to even go out and visit the person.

If this was a child protection case, if we had someone in foster care and we heard that no one ever went and visited to see if the kid was okay, we'd be appalled. We should be equally appalled in these cases where vulnerable people are not being monitored and checked up on.

CONAN: Naomi Karp, Senior Policy Advisor at the AARP Public Policy Institute here in Washington, D.C. Thanks for joining us today.

Ms. KARP: Thanks.

CONAN: And our thanks as well to Terry Hammond, executive director of the National Guardianship Association, who joined us from the studios of KHEY AM in El Paso, Texas. Appreciate your time.

Mr. HAMMOND: It's been a pleasure.

CONAN: When we come back from a short break, what an involuntary recall means for the Marines and for the morale of the all-volunteer military. Plus, your letters. It's the TALK OF THE NATION. I'm Neal Conan. Back after the break. It's NPR News.

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