ABA: Guardianship a legal "wild West"

Jan. 29—LANSING — Attorneys with the Michigan Attorney General's office have so far this month charged or resolved three separate cases involving court-appointed guardians accused of misusing clients' money.

A Gratiot County woman, Tayna Patterson, 40, was charged with embezzlement after prosecutors say she used her legal status as a man's guardian to open a checking account in his name and spend his money for personal gain.

A Saginaw woman, Valda Cork, 59, of Saginaw, charged with embezzlement and tax offenses by the AG's office, is accused of using her status as guardian and conservator to spend $1.1 million of her mother's money on a Florida condo, among other unauthorized expenditures.

Also in January, the AG's office resolved an ongoing probate court case with a Farmington Hills attorney, Patricia Dudek, who the state said charged a guardian and conservatorship client who was on a fixed income, $350 an hour, racking up $79,000 in fees between October 2021 and June 2022.

These cases from a single month do not include ongoing investigations or charges filed Michigan's 83 county prosecutors, and appear to illustrate what one writer for the American Bar Association terms a "legal wild West."

"Lawyers who take on guardianship cases often find themselves in the legal equivalent of the 'wild, wild West,' " writes Rebecca Harris, in the latest issue of Bifocal, a publication of the ABA's Commission on Law and Aging.

"There is often a gap between the law on the books and how guardianship proceedings actually play out, and this gap almost invariably works in favor of the party seeking guardianship," she said.

Experts say more people under court-appointed guardianship and conservatorship oversight, where someone else controls a client's housing, health and financial decisions, is likely to lead to more criminal violations and more prosecutions.

The ABA last week announced Feb. 1 as national "Conservatorship and Guardianship Abuse Awareness Day," in what the trade group says is an effort to highlight how the civil rights of vulnerable people can be ignored or brushed aside.

As part of that effort, its Commission on Law and Aging surveyed attorneys nationwide in advance of creating a new guide for members on how to oppose guardianship in court by using more targeted and less invasive legal tools.

The results of the survey have yet to be published, said Erica Costello, a senior attorney, but court records show the national problems Harris highlighted in Bifocal are similar to those Michigan residents say they and their families often face when summoned to a county probate court.

"The county has the judge, the people who want to get you into a guardianship have the prosecutor, but there's no one to represent us," said Loreli Haddad, 83, of Roscommon.

Haddad made the observation last fall, before a hearing in front of a Roscommon County Probate Court judge where the fate of Haddad's sister, Kay McGinnis, 82, was to be decided.

McGinnis said she wanted to contest a guardianship the court had put in place years prior when she suffered a stroke. A public defender sat with McGinnis at the defendant's table, having introduced himself just moments before the hearing began.

Haddad and another sister, Peggy Olsen, 87, assembled McGinnis' records and filed a handwritten termination petition on McGinnis' behalf. The women are on fixed incomes, did not hire a family attorney and none was provided to them by the court.

Haddad filed the petition, she said, after she and her sisters became angry over suspected theft by one of McGinnis' previous guardians and believed McGinnis had recovered enough to make her own life decisions.

The hearing went McGinnis' way — Probate Court Judge Mark D. Jernigan agreed to terminate the court-ordered guardianship in favor of McGinnis naming her son as her power of attorney.

The judge in McGinnis' case used what the ABA calls a "less restrictive alternative" or LRA — which can include some type of supported decision-making agreement with a family member or caregiver, a trust or, as in McGinnis' case, the power of attorney document.

William Doherty, the chief judge in Barry County and president of the Michigan Probate Court Judges Association, said judges welcome the use of these kinds of legal tools.

He said Michigan, like other states, has its share of difficult and contested cases — although he took issue with the notion that there is a legal "wild, wild, West" here.

"I do think the framework is in place for good decisions to be made and for people's rights to be protected, along with protecting vulnerable individuals," Doherty said. "Judges who have spent any time on the bench at all have encountered situations where people are being taken advantage of."

If an LRA like this is available and will work, Harris said, a court-ordered guardianship can be an unnecessary overreach.

"By highlighting the safeguards that their client already has in place, an attorney can reassure the court that denying a guardianship petition will not automatically lead to disaster," Harris said.

Doherty said, in his courtroom, he welcomes the use of power of attorney, trust and other less all-encompassing legal arrangements, as long as they assure someone who can no longer handle their own affairs is being protected.

In Michigan, a guardian handles housing and medical decisions for someone the court has deemed incapacitated, while a conservator handles financial decisions. The same person can be appointed by a probate court judge to oversee both tasks.

Bradley Geller, an Ann Arbor attorney and director of the Michigan Center for Law and Aging, said he has used other tools too, such as advanced directives, which are a written statement of a person's end-of-life wishes regarding medical treatment.

Geller in 2019 unsuccessfully sued the State of Michigan, arguing administration of the guardianship system amounted to elder abuse, and said repeated talk of reforms have not provided legal protections for seniors.

Geller said he received the ABA's survey, although he preferred a nuanced discussion with Commission staff rather than trying to explain, in brief answers, the extensive problems inherent in the guardianship system.

Harris in her Bifocal article states that judges in many jurisdictions do not follow the law in guardianship procedures, but substitute their own judgment for the legal standard. That can include the belief, possibly well-intentioned, that anyone with a moderate or severe disability needs oversight.

Geller previously said this is exactly what he has experienced in 40 years of advocating for his clients, many of whom are elderly, disabled or both.

"Regardless of the law, in practice, respondents face a presumptive system wherein the burden is perversely on the respondent to prove he or she does not need a guardian," Geller said. "Once in court, a lawyer is faced with the existential dilemma of defending an individual in a forum in which neither facts nor the law matter."

In 2019, Michigan Attorney General Dana Nessel launched her elder abuse task force to address how law enforcement, the courts and social service groups can better protect vulnerable people.

The task force has so far released three sets of initiatives, some of which included suggested legislation, most of which has so far lagged in committee.

One concrete accomplishment — the Financial Exploitation Prevention Act (FEPA) — took effect Sept. 26.

Banks and other financial institutions now must report suspected financial exploitation of vulnerable adults to adult protective services or law enforcement, and train their employees about what to look for.