34 minute read
The Conservatorship Con
Pop superstar Britney Spears’ very public fight to regain control over her assets has brought new attention to the often murky world of conservatorships. (Photo by https://www.flickr.com/photos/rhysadams/ and Wikimedia Commons.)
THE BRITNEY SPEARS CASE EXPOSED
to the world what thousands of people nationwide each year say they are experiencing: the deceitful side of conservatorship. Conservatorship is the court-ordered assignment to a third party of the responsibility for care and the conservation of the estate of an incapacitated person. Critics say unscrupulous conservators and guardians protected by influential attorneys neglect and exploit the very people they claim to safeguard. From the August 30, 2021, online Grownups Member-Led Forum program “Britney Spears and the Conservatorship Con.” RICK BLACK, Executive Director, CEAR (Charlotte, NC) THOMAS COLEMAN, Attorney; Executive Director and Founder, Spectrum Institute (Palm Springs, CA) LISA MACCARLEY, Attorney; Founder, Bettys Hope LEANNE SIMMONS, Human Rights Advocate; Entertainment Industry Professional; Co-manager, @FreeBritneyLA Dr. GLORIA DUFFY, President and CEO, The Commonwealth Club of California—Moderator
BRITNEY SPEARS AND THE CONSERVATORSHIP CON
GLORIA DUFFY: Today we’ll be talking about a subject very much in the news, conservatorships—also known as guardianships in many states—in large part due to the current controversy over the conservatorship of the pop star Britney Spears. Conservatorships are a legal construction allowing others to take care of those who are not able to take care of themselves. They are obtained and managed through the court system with the intention of protecting vulnerable individuals’ health and financial well-being. But a lot of things can happen during the conservatorship process. And practices are being brought to light now both in California and across the nation on the part of attorneys, conservators, guardians, fiduciaries, family members, courts, and other actors that point to much-needed reforms. In particular, attention has recently focused on practices where attorneys, fiduciaries, conservators, and courts may collaborate in a predatory manner to place individuals in conservatorships to access their assets or for other self-serving reasons.
Sometimes the conservatee or a ward’s health or wellbeing is damaged in the process, and deaths have even occurred. Sometimes conservatorships are necessary where they are needed under current court practices, which lack effective judicial review of attorney fees. Attorneys may exploit the process to take as much as possible of the person’s or family’s assets.
First let’s turn to Rick Black. RICK BLACK: My wife and I were first exposed to guardianship or conservatorship in California eight years ago, when her father was taken captive. Through all the efforts that we
undertook through law enforcement, through local attorneys, we quickly recognized that the system that claimed to be there to protect the vulnerable and the disabled seniors as well had one intent, and that was to continue the exploitation of a vulnerable adult. Since that time, we have investigated over 4,000 cases since 2013. We were never able to protect my wife’s father; it cost our family over a million dollars and the life of a dear loved one.
But what we’ve learned over the last five years is that our experience was not unique. In fact, it was not isolated in any regard. Our advocacy in the state of Nevada yielded the criminal conviction of 10 professional guardians and attorneys who commonly used guardianship as a cover for criminal acts. Since founding CEAR [Center for Estate Administration Reform] in 2018, we’ve learned that there are hotspot states, hotspot counties across the country where predatory attorneys routinely use guardianship and conservatorship as a weapon to exploit. CEAR advocates seven days a week on behalf of anyone who comes through our website or through our hotline. We tell people what the legal community refuses in most cases to even admit. Fortunately, today we have two attorneys joining us, Thomas Coleman and Lisa MacCarley, who have made a career out of educating the public on what routinely happens within adult guardianship and conservatorship—a domain where predatory and sadly parasitic attorneys, those who want to create as many conservatorships and guardianships as possible, participate.
Once they get the coveted court order to commence a guardianship or conservatorship—the only way anyone can be appointed into those roles is via a court order—they then have really complete authority to liquidate an estate for their own personal benefit.
We’ve coined a phrase here at CEAR which describes better than 90 percent of the cases that we counsel: Isolate the victim, defame legitimate protectors, and liquidate the estate. Isolation of a vulnerable adult, whether it’s by their own choice, living alone after a spouse has passed or someone who’s lived alone for their entire lives, creates an opportunity for the nefarious. Distance to loved ones, distance to legitimate protectors is an ally of an exploiter. It’s so very important that as our wealth grows and as we age that we have documents in place that best protect us from interception of our estate.
The two documents that we define as the most important documents that anyone can execute are the durable power of attorney with backup agents, a primary and a secondary, as well as the health-care advanced directive, again with a primary and secondary agent. Have those documents notarized and give them to your legitimate protectors who you trust implicitly will come to your aid in time of need and who understand sadly that the system that creates conservatorships in California is too often committed on furthering exploitation versus truly protecting the vulnerable. You might ask why. In California it’s estimated that $200 billion a year transfers generationally in the state. That is those who are elderly, who have their documents in place and intend to transfer their assets to heirs, whether it’s a nonprofit or a family or other recipients. The legal community understands how easy it is to intercept those funds through trust fraud, conservatorship fraud, and other probate fraud activities.
Within the conservatorship industry, we don’t know how many wards are in California. To be a ward, subject of a conservatorship, that affects anyone 18 or over. We see many disabled young adults whose parents are prompted to place them into guardianship as soon as they turn 18 by school districts, by hospitals, by the legal community, and others. Yet the durable power of attorney and the health-care advanced directive can easily serve to protect that class of individuals versus a guardianship. The point that we want the audience to know today is that once you’re under the control of the courts, you and your loved ones control nothing; the judge controls everything. And generally they are highly influenced by attorneys who practice before them every day. You’re a stranger in that environment, and you need to understand that.
Within conservatorship, we estimate [at CEAR], based on national numbers, that there’s 140,000 wards in the state of California. Those wards would represent over $30 billion of estate value. That is a profit center for the legal community within the state. Whether it’s 70,000, which has been estimated by other groups or 140,000 or anywhere in between, the sad part is the state of California has refused through the state bar
and through the Supreme Court to enforce a census within the state so that there’s total transparency on how many individuals lose their rights each year and are placed into a conservatorship. Throughout this hour, we’re going to hear from how things were missed in the Britney Spears case and many, many other cases within the state. And I hope that the listeners are enlightened to their risks to conservatorship in the state of California. DUFFY: Rick, you essentially left your very successful career to focus on this. Tell us just a little about your own background. BLACK: I’m an engineer by training, but I was an executive with General Electric for 18 years. I left there and went into private industry, worked in private equity for about 15 years. In 2015, thanks to a successful career and the odyssey that our own family [went] through in a guardianship, I chose to leave my desired profession and work seven days a week as a free volunteer for families across the country. Eventually my wife and I formed CEAR in 2018.
But to your point, Gloria, we approach this from a financial perspective. Follow the money is the key to all of our investigations, because that is the driver in these cases, whether it’s estate trafficking—another term that we’ve come up with over the years—or Medicaid fraud. Medi-Cal, Medicaid, the federal entitlements [that] flow into California for the disabled, presents a quite large piggy bank, if you will, that people can draw from regardless of whether the vulnerable individual receives those treatments and therapies that are claimed. DUFFY: Now, let’s turn to Lisa MacCarley, tell us about yourself and your work. LISA MACCARLEY: I’m an attorney in Los Angeles County focusing primarily on probate conservatorships in Orange County and Los Angeles County. I have been documenting dysfunctional conservatorships for the last decade, because I spotted problems in the system. In fact as a practicing attorney, I actually became so disenchanted with what was going on, I stopped being a court-appointed attorney. I have a different perspective than the other panelists, because I’m an insider as well as someone though that is very critical of the system. And what I am seeing in the Britney Spears case, since that’s the focus, was what I call incompetence and cronyism. This is a feature of where our judges have no training, no supervision, no accountability. In other communities, we call that qualified immunity, meaning that the system is broken because the legal community does not have valid checks and balances on the judges who are presiding over these cases.
We literally have people that come out of careers of 30 years in the criminal courts, 30 years perhaps in other areas of law. They put on their black judicial robes and suddenly they are tasked with making life-and-death and very critical decisions that frankly they have no business making. That’s why most of the judges that we see here—Judge Penny who’s presently in the Britney Spears case is something of an exception—but most of the judges are what I call short-term employees, they’re temps. They come in for a few years, they get to a point where they’re familiar enough with probate, and I think other panelists would agree, then they have very lucrative careers in mediations.
But the idea is that we have judicial officers that should not be presiding in these cases. One of the facts that I point to is that on February 4, 2008, which is when Britney Spears was denied justice because the commissioner at the time, Reva Goetz, would not allow, I believe, Adam Streisand, a very well-known attorney in the probate community, to represent Britney.
This failure on the commissioner’s part was stunning when she fired Adam Streisand. There’s no statutory authority; that was the violation of Ms. Spear’s constitutional rights to have counsel. But from there what I point to is that apparently not a single person in the courtroom in that moment knew that Britney Spears had the 100 percent unequivocal right to be represented by an attorney of her own choice. So then the question is, why did that happen? And that is because Judge Reva Goetz was told to rely on the favorite crony Sam Ingham. I’ve known Sam Ingham most of my career, since the late 1990s. I don’t know that he’s any different anymore, maybe a bit more egregious in what he did to Britney Spears. But this is normal; this is judges who don’t know what they’re doing being allowed to be run around by attorneys that are perhaps equally incompetent and unscrupulous.
But the judges are being told by the Judicial Council of California to rely on reports and statements made by these attorneys. So the attorneys are running the show, and nobody is looking at what the law actually is in the state of California. So these injustices—although now we look at it and we can’t even believe what happened to Britney Spears, this is what is happening to seniors and other adults facing or in conservatorships every day. So my charity that I started because of cases like Britney Spears, Betty’s Hope, is an attempt to get our legislators as well as our county supervisors to acknowledge that judges and lawyers are a terrible mix. Judges should not be picking lawyers, paying lawyers, appointing lawyers. They should have nothing to do with who is appointed or chosen to represent persons facing or in conservatorships.
So to me, the fix is preventing people from being traumatized, exploited and abused as Britney Spears most definitely is being subjected to. But it’s because of this flaw where judges are told to rely on their favorite probate court-appointed counsel. It’s despicable. We need to contact our state legislators and tell them that they need to change this system; it is a systemic flaw. DUFFY: Tom Coleman, you’re an attorney. You’ve been investigating the role of attorneys in particular in probate cases. So tell us about yourself, your organization and what you’re doing. THOMAS COLEMAN: This program you’re putting on today I think is a very great service for the public to become educated, because people hear little tidbits about things and they know that there’s something wrong, but rarely do they have a chance to really listen to some of the in-depth analysis by people who have experienced these problems firsthand, either personally like Rick or in the trenches like Lisa or in individual cases like Britney’s case and Leanne advocating for her freedom.
My involvement has been in civil rights advocacy over [nearly] five decades. Time flies for many causes and constituencies. Around 2012, I was introduced to my first taste of abuses in conservatorship cases, not representing anyone, but just as an outside civil rights attorney that people would come to. I’m like, “Isn’t there something wrong here?”
—RICK BLACK
After going through a few of those, I decided to start doing auditing of cases and going into the court records. What I found was a pattern in practice of civil rights violations. Our organization, Spectrum Institute, we’re a nonprofit advocacy organization. Basically I take kind of a bifocal approach to this. So one lens looks at the financial, but the other lens is looking at the civil rights violations. Because in many of these cases, the individuals wind up getting a public defender if they get an attorney at all to defend them; they don’t have significant assets. So it’s not so much the financial abuses that are going on, although there’s a little bit of that too with respect to government benefits, but it’s more somebody trying to control and take over their life. Maybe a young adult with developmental disabilities and someone doesn’t want to see them have sex or have relationships.
It can be benevolent motives, but whatever the motives, stifling someone’s freedom for benevolent reasons is still stifling their freedom. I’ve looked at this, and every year I would look at different part of the system. This is a very complex system, and the cases are very complex. There are many parts to the system, and there are many players in the case. So finally after all these years of continuing nonstop seven days a week our research and analysis and publishing reports and so on, I think I have a pretty good handle on the players and so on. [There’s] a matrix of what’s involved in a conservatorship case. A respondent [is] responding to a petition that’s been filed and needs to respond and do something to defend their rights, because if they do nothing, then the petitioner will just win by default, so to speak. So you have a petitioner who files the case. The petitioner has an attorney in many cases, sometimes not. And then you have a court investigator that may be involved. You may also have a guardian ad litem who’s appointed [by the court to watch over someone during the case]. You have capacity experts, you have regional centers. Sometimes you have the Department of Developmental Services, who could be a petitioner. Also petitioners can involve family members, it can be involve the public guardian. If the public guardian is involved, then you have the county counsel representing the public guardian, and then of course you have a judge.
So you’ve got all of these various participants, and then you have the adult who’s the target of the proceeding who may or may not be given an attorney, who may show up with an attorney of their choice only to have the judge refuse to acknowledge them. And then in some cases, the judge does not appoint an attorney and the person has to go through the proceeding without anyone to defend them. The issues that are involved are constitutional rights, safe alternatives to conservatorships that should be considered, the threat of major life decisions being taken away from the individual. And also the possibility that they could be given a conservator to control their life for the next several years or decades depending on the age of the person who could neglect their rights or abuse them.
So that’s how complex that individual case is. The system itself is complex. I did a symposium presentation a while back and gave people an overview of what’s involved in the system itself. Either directly involved or indirectly, you’ve got federal, state and local government entities, you’ve got judicial, legislative and executive branch officials. You’ve got professional associations and disability rights organizations, and so on. In terms of reform, every single one of these entities has a role in reforming the broken system. And believe me, all parts are broken.
But if we make the wrong proposal to an agency, they’ll just ignore it because they’ll say “It’s not in my purview.” So we have to target the proposals to the right entity. You’ve got the Supreme Court, the judicial council, the Court of Appeal, the Superior Court, the legislature, the state bar, the Department of Developmental Services for people with developmental disabilities. The Department of Fair Employment and Housing should be there to protect people’s civil rights if any of these participants violate their civil rights. Disability Rights California is funded $10 million or more per year and should be there to help people, but hasn’t been lifting a finger to do so. The county governments have a significant role. The supervisors choose which entity is going to provide legal defense for indigents. The county council is involved, and other entities at the county level like the public guardian. The U.S. government could be involved, more involved than it has been if it chose to, but so far has just been nibbling around the edges. The legal profession could really be spearheading reform, but isn’t doing anything really. Other professions, medicine, psychology, and social worker are all involved.
So you see there’s this complex system, and reform is a complex multifaceted approach.
I believe that the key to reform is through the attorneys who should be advocating for these individuals. First of all, you [have] got to get the judges out of appointing attorneys. The judges should just be sitting there and whoever appears before them, they should have to deal with that person; they shouldn’t have direct or indirect control over who gets appointed to an individual case. They shouldn’t be paying the attorneys, and they shouldn’t be training or coaching the attorneys; that should be for somebody else. The attorney should have performance standards, just like a doctor that’s performing surgery doesn’t just do what he or she feels or wants to. There are standards that guide them through the process, and there are consequences legal and otherwise if you fail to perform according to standards. These attorneys have no performance standards. The trainings are terrible. I just wrote a commentary last week about a recent training program; it omitted the important things that attorneys need to know, and it gave them misinformation on others.
We sent a request to the California Supreme Court. There were about 10 organizations asking them to convene a work group on conservatorship right-to-counsel standards. The Supreme Court is in charge of the state bar, the state bar reports to the Supreme Court. The Supreme Court therefore promulgates the rules of professional conduct. It also therefore is in charge of the discipline system and the complaint system for attorneys. Therefore the buck stops with the Supreme Court. So we want the court to finally acknowledge its responsibility for allowing this mess to occur, because the mess is mostly because the attorneys are basically trying to please the judges and to keep their income stream going, and they’re not trying to please their client or protect their rights. So this is pending recently.
Finally, the Spectrum Institute has a funding and fees review project. Look at
—LISA MACCARLEY
legal services as the key to reform. For the last year, we’ve been looking at public funding of legal services, indigent legal defense services. Every county provides legal services for people without assets who have an attorney appointed. It could be a public defender department. In some counties, it could be a contract public defender, a law firm under contract with the county supervisors. Or it could be the court-appointed attorney system, like Los Angeles, which is the worst of all. So we’re going to be releasing our report on the public funding of legal services [on] September 7. Go to our website spectruminstitute.org, and you’ll be able to review it.
Basically what we found in a nutshell is a system in disarray, that’s fragmented, that is providing deficient services and needs major reform. We have our recommendations to the various entities that would have authority to make sure that people who don’t have assets but whose civil rights are at risk in these proceedings receive proper legal representation. The second part of it has to do with the fee gouging, the fee for all, the abusive fee system, if you want to call it a system. But it’s ad hoc, where individual judges can do whatever they want without guidance, without accountability, without appeals generally. . . . In cases where the people do have assets, their assets might just be their home. Maybe they have $300,000 in assets in the home. Well, believe me, that’s going to be eaten up in attorney’s fees in a wink.
So the judges are making the individuals pay not only for their court-appointed attorney who may be actually advocating against them. And the individual, the senior, is having to pay the attorney to advocate against the senior, which is another abysmal situation. But they also are being forced to pay for the attorneys for the petitioners, sometimes the objectors, and also the attorneys for the temporary conservators, the attorneys for the permanent conservators. One attorney in a case told me [about a woman] in her eighties who had significant assets. In her case, she did not have a court-appointed attorney as an advocacy attorney. Yet at one point, out of her estate she was being ordered to pay five attorneys, not her own because she wasn’t even given one.
We will be working for the next year or more on the fee abuse situation and issuing a report on that.
The system is badly broken; every part of it is broken. No one is funding conservatorship reform, it’s people like us who are doing this as volunteers. That’s why it’s taking so long. If some foundation, MacArthur Foundation, the Ford Foundation were to donate a chunk of money, and if the money were targeted on cleaning up this attorney mess, we could speed up and accelerate the reform process. DUFFY: Leanne Simmons, Lisa touched on the Britney Spears case. I know you’ve been extremely involved in that case, advocating for Britney Spears. So please tell us about yourself and what you’re doing. LEANNE SIMMONS: First I would like to thank The Commonwealth Club for having this program, because it’s so important that we’re educating the public about these issues. I think that in Britney’s case, in particular, the lack of awareness about this type of thing is what has allowed it to continue for 13, going on 14 years now. I myself started as just a Britney Spears fan who was kind of concerned about the seemingly really microscopic control over her day-to-day life. And the fact that she was working for 13 years doing tours, bringing in hundreds of millions of dollars, seemingly able to do so, yet under this conservatorship that had taken away all of her rights to make her own decisions. We were just fans dabbling in the law; we didn’t know too much, we just knew something felt off.
In 2019, there was a whistleblower, a paralegal who was familiar with Britney’s case who confirmed a lot of our concerns, and the fact that Britney at that time was allegedly being held against her will in a facility and had been mistreated for most of her conservatorship. That’s when the ball started rolling. For the last two years, we have been fortunate to team up with other advocates and activists who’ve been working on this for many years, decades. We realized that this is so much bigger than just Britney, this is systemic. It involves cronyism and just the lack of oversight in our systems. These judges and lawyers are able to do whatever they please, and there isn’t a lot of checks and balances. There’s no oversight.
That’s a huge part of what I think needs to be implemented in this situation, because as Tom had mentioned, this is a very complex system. There are all these puzzle pieces. I think it’s overwhelming to the average person, it’s overwhelming to those in the legal community even. It’s just a very intricate system. So we need to simplify it, and we need to make sure that there is oversight into it. Britney’s case in particular I think could be a really great catalyst for this reform. It’s wonderful that the narrative is happening now. People are talking about conservatorships, people who had never heard the term before are now aware of what it is.
Yes, Britney is theoretically very rich, she’s young and able-bodied from what we can tell, and a young white woman. It’s easy to dismiss that and think there are bigger issues out there—she’s got money, she’s fine. But when you look at it, she doesn’t have control of her money. So how much is that fortune worth when she doesn’t have a say in how it’s spent? I think that that’s important to recognize. Another thing that Tom had said is you can just have a home that might have some assets in it, you don’t have to have hundreds of millions of dollars in the bank. These predators look for even the smallest things, and you’d be surprised what people will do for small sums of money. It’s important as a fan and with a mom aging, grandparents, friends, myself, this is a threat to all of us.
The system is set up to take control over anyone, and oftentimes over false accusations of disability or ineptitude that aren’t even true. We should be very aware of this, and we should fight as we’re moving forward, because the baby boomers are aging up and we’re all getting older. This is a predatory system that tends to go after those who are elderly and also those who are disabled.
I am very honored to be a part of the Free Britney movement, which has kind of evolved into this passion for the rights of conservatees and reforming the system, because it is so much bigger than just Britney. We want her to be able to go have children or to Starbucks, be able to [exercise] her constitutional rights, of course. But beyond that, it is, again, coming back to that systemic problem that we opened a can of worms as a fan base.
I think the majority of us are really grateful to have teamed up with other advocates. I firmly believe Britney will be free and very soon. But the work is not done at that point, we need to take this further and continue to
—THOMAS COLEMAN
reform these laws and make sure that this sort of thing is not happening in the future. DUFFY: The Britney Spears case has upscaled visibility of this issue. Let’s talk about that case for a second, since it is so visible right now. What what would be a humane, appropriate, supportive situation for her? MACCARLEY: Well, I’m going to go ahead. I am adamantly against maintaining this conservatorship for a number of reasons. I am convinced that Ms. Spears never qualified for a probate conservatorship. A probate conservatorship is only appropriate when someone is truly unable to make decisions and take care of their own needs and very basic food, clothing and shelter. It does not require someone to be sophisticated as a business manager, it doesn’t actually require them to be shrewd or business savvy whatsoever. What happened to Britney Spears, let’s be very clear, was a violation of her constitutional rights. Ms. Spears at this point should be free of the conservatorship, she should have people that she has vetted and appointed to help her with her medical decision-making as well as her financial decision-making.
And as Rick properly pointed out, there’s no reason that I can see why this could not be managed with a durable power of attorney, health-care directive, and other estate planning documents. She has a living trust, her assets should be in the living trust. She should have competent fiduciaries around here, she does not need a probate conservatorship, never has. I’m appalled at what’s going on, I’m appalled that the judges have allowed this to be maintained, especially in light of her statements on June 23. So right now in my viewpoint as an attorney, I’ve done this for over 25 years, Ms. Spears should be free of this conservatorship; she does not need the protection of the court. In fact, I would argue that she needs to be protected from the Los Angeles County probate court. COLEMAN: I agree with you on that. I think that she’s been abused in the conservatorship. What would the problem be to terminate the case, see what happens? If a new situation arose, where there needed to be some intervention, then you could always take a fresh look at it, but give her a chance. BLACK: Yeah. I look at the numbers. We estimate looking at what has been submitted to the court that the attorneys have been paid over $20 million from her estate since this . . . conservatorship was begun in 2008. At any one time, and I’ve counted them in the past, there were at least a dozen attorneys who were feeding off of her estate. Many of them, maybe even all of them, knew that she didn’t qualify for conservatorship when it started, and she was actively arguing to end it from as early as 2010. So there’s more than a decade here of more than a dozen attorneys who were extremely well paid who ignored Britney unilaterally for the 13 years.
The point that I also want to make is Britney is unique in that she’s young, vibrant, quite lucid. In our government, you’re allowed to make mistakes, we’re all given free will. Making mistakes is part of growing up, it’s part of being human. Yet in this case, those couple of issues at a time which was very, very high stress for Britney Spears back in 2008— two young children, going through a divorce, husband isolating the children from her and paparazzi all over her—we’re going to use that moment in time to judge this woman for 13 years? Most wards don’t have their abilities to fight back. Many wards are targeted, groomed, thrown into conservatorships due to illness or injury or dementia, have lost their ability to fight back. And that’s what should alarm the public, that here’s a woman who’s quite vibrant, quite articulate, didn’t qualify 13 years ago, and yet she still finds herself in one of these. DUFFY: Rick, I want to go back to some of your early comments. You talked about winning some convictions in Nevada. Can you tell us a little bit about those cases, what was going on? When you and others have pushed some of these issues, what kind of cases [were they, and] what were the outcomes? BLACK: Nevada to date is the only state where the attorney general of the state launched a criminal investigation, based on mountains of evidence that my wife and I and other activists presented to him back in 2014. Adam Laxalt was newly elected to the Nevada attorney General’s office. He was alarmed by the evidence that we presented and launched a statewide investigation. The conservatorship, guardianship system, sadly—back to the dysfunction that’s been described—is a haven for narcissists and sociopaths. It’s an environment where lying is rewarded. I want to define it more critically for your audience. Attorneys are licensed by the state bar. You can get a law degree, but then you have to be licensed by the state bar in every state to practice. But then there’s this unique group called litigators, and litigators make their money in a courtroom. In a courtroom, they don’t take an oath, they don’t have to tell the truth.
And in an equity courtroom where billions of dollars are at stake, they can lie routinely. What the attorney general of Nevada uncovered with this investigation with the help of ourselves was they’re statutorily required to submit an accurate inventory when a conservatorship commences; they weren’t doing that. They are statutorily required to define where each and every penny is spent and who it’s given to every year; they weren’t doing that. In Nevada, less than 4 percent of all guardianship cases that were reviewed were statutorily compliant. And within that, there was an immense amount of criminal activity that sadly was being protected by this court. So that was how that investigation began. It was following the money, it was showing the statutory noncompliance and then getting those bank statements to show that the money had been misappropriated.
There’s only two other states that have taken action on this, and they were actually done by the federal government, which is also extremely alarming. California has never undertaken a criminal investigation at the county or state level or federal level. In New Mexico the FBI came in, because six professional conservators had ripped off over a thousand people. Those six executives were sent to prison in 2020 and ’21. But again, it took the FBI, it took the Department of Justice, to combat this from a criminal perspective. The only other state where we’re seeing a prosecution underway is the Eastern District of Pennsylvania, Philadelphia, where it’s a recognized hotspot for estate trafficking within the professional guardianship environment. We do have a woman there, actually five conspirators, no attorneys involved, but the the DOJ has 850 some counts on her, and she’s currently going through criminal prosecution.
The federal government is starting to
—LEANNE SIMMONS
understand the dysfunction of the system and the ability for predatory attorneys to use it to violate civil rights of the individuals as well as to conduct criminal activity. But we’ve got 3,500 counties in the U.S. and a lot of law enforcement that continues to ignore these crimes. DUFFY: So some questions coming in from our online audience: “Does a contested conservatorship ever cost less than $200,000 to litigate? I’m concerned that there is an estate size for which only informal solutions are available, and it’s a fool’s errand to challenge control of, say, a relative who is exploiting a vulnerable senior.” Comments? COLEMAN: Well, from what I’ve seen, first of all, there aren’t that many contested hearings that occur, number one. There just seems to be a lot of settlements. And a lot of settlements occurred because the estate would be eaten up in contested hearings or trials or whatever. Theoretically, the individuals have a right to a jury trial. I examined the records of the data from LA County. Over a period of 12 years where 24,000 probate conservatorship cases were processed, there were two jury trials. I think that the real problem is occurring more with the settlements and the backscratching of everybody to get the conservatorship in place. Then afterwards there can still be other objections and things that eat up the estate, but I think the real problem is just the collusion more so than the contesting. DUFFY: I’d like to do a very quick lightning round and ask each of you if there’s one thing you could do that you think should happen, one practical thing to change and improve this conservatorship system, what would it be? BLACK: It would be to implement the federal FREE Act, which is currently in committee, which gives contested cases an exit ramp to go to a federal court and have . . . a full de novo review of whether the conservatorship was appropriate. And if it was, who should be the conservator of that individual? Without federal oversight, these problems are only going to continue to grow. MACCARLEY: Absolutely separate judges, lawyers, and money. Tom also articulated the same plan. But I did actually study the model in Las Vegas where they funded an entirely different group of lawyers that are separate from judges. Other counties do that. In California, that should be mandatory. And I think that would start settling a lot of these problems where judges no longer are basically assigning their favorites to cases and then following directions from those lawyers. SIMMONS: Yes, definitely going off of what Lisa said. I think way too many conflicts of interest are being allowed to continue. And how is someone who is incentivized to keep a conservatorship going going to advocate to end it? It gets messy there obviously. It comes down to oversight. When there’s a single judge who is relying on her favorite court-appointed attorney, that single person has way too much power over the ward’s estate and life. So I do think it needs to be overseen at a higher level, potentially federally, because the states just do what they want at this point, and we need more control over these systems. COLEMAN: Okay. I agree with everything that everyone said. Take something that interests you personally and you feel that you can do. For example, a letter to your state legislator saying that you support SB-724 by [California State] Senator Ben Allen. It creates modest but necessary reforms to the court-appointed attorney system. So that’s a very specific doable act. The other, if you’re in LA County, for example, Lisa and I are going to be working together and trying to get the LA County Board of Supervisors to stop throwing money at the court to allow them to operate this court-appointed attorney system and instead to consider the Nevada style attorney system. DUFFY: I’m going to throw one on the table from some conversations I’ve had actually suggested by my district attorney in Santa Clara County here in California, which is that counties have local rules of court. In Santa Clara County, they’ve instituted a local rule that fee petitions by attorneys have to be closely examined by judges to make sure that the fees are actually in the interest of the protected person and their estate. There are some criteria obviously for that. Seeing that as a statewide standard in California and elsewhere would be great, because at least then judges would be obligated to examine whether this fee for all has inbuilt interests, as you were talking about, Lisa, or whether it’s actually doing something for the person who’s on the conservatorship or the guardianship.
I think all of you have pointed to what is really a civil rights issue in the U.S., a human rights issue. We don’t usually think of this area as among civil and human rights. But it is, it fits that criteria. And it is . . . a system that needs to be reformed so that there isn’t a bias, an abusive quality to it.
