Will Austin continue allowing lawyers and bankers to get rich off Texas’ elderly?
Posted April 1, 2015 by Jeff Prince at Ft. Worth Weekly
Residents and activists are looking on with keen interest as lawmakers in Austin are discussing new bills that could give probate judges even more power to place people under guardianship. For years, probate judges in Tarrant County and across the country have used far-reaching powers to strip vulnerable residents of their rights and their money. Tarrant County’s Guardianship Service Inc. is designed to protect vulnerable people’s assets. But what began in the 1980s as a way to provide volunteer guardians for the elderly evolved into a tight-knit and powerful system of professional probate judges, attorneys, bankers, investigators, and court-appointed guardians who can take over people’s lives, place their money in managed trusts, and relentlessly bleed the estates dry.
A growing number of disgruntled residents are striking back.
“You work all your life just to have these buzzards pick your estate apart,” said Michael Easton, an activist who agitates probate courts on behalf of people placed under guardianship in questionable cases. “That’s not right.”
The probate judges hear the groundswell of discontent. Rather than accept reforms –– or push for them –– some are digging in their heels. More than two dozen guardianship-related bills have been filed in the 84th legislative session currently under way. Critics say most of the bills appear to be filed by politicians on behalf of attorneys who profit most from the system.
“They steal old people’s money and parcel it out among themselves,” Easton said. “Family members are left watching on the sidelines. By the time the person dies or is no longer ‘incapacitated’ –– quote unquote –– there’s no money left.”
Easton, a paralegal and private arbitrator and mediator, worked with defendants in two guardianship cases in recent years. Seeing the amount of power that probate judges wield and their willingness to abuse those powers to gain access to people’s bank accounts convinced him the system needed changing. He has since joined many other activists, including some from Fort Worth, in attending legislative hearings in Austin to push for reforms.
Easton attended a hearing in 2013 where several probate judges, including Tarrant County’s Pat Ferchill, spoke out against proposed reforms. A bill intended to add transparency to probate courts was blasted by judges, who worried it might clog up their systems.
“Do you think they want to repair the system?” Easton told Fort Worth Weekly back then. “They are happy with the way it is. Right now there is no oversight, and they can do whatever they want.”
Rep. Elliott Naishtat has written two dozen guardianship-related bills since 1993, many of them brought to him or suggested by Probate Court Judge Guy Herman of Travis County, Naishtat said.
Naishtat said his bills have added safeguards to wards and families and enabled probate courts and judges to better determine if a guardianship is necessary.
“I firmly believe that protecting the elderly and people with disabilities from abuse, neglect, and financial exploitation should be a priority,” he said. “I am very proud of the work I have done with respect to the guardianship-related needs of many of our most vulnerable citizens.”
Critics say legislators who write bills to please judges are part of the problem –– but the critics save their harshest words for judges such as Herman and Ferchill, who lobby lawmakers for legal changes.
“Naishtat is in Herman’s pocket,” Easton said. “Whatever Herman wants to do, he drafts it and sends it to Naishtat, who sponsors it. Ferchill testified that he wanted … things passed that would benefit the probate judiciary. How can this man be a judge when he’s down here legislating? Judges are supposed to interpret the law and make decisions on that law, but they’re not supposed to have any say in writing the law. Proactive judges cannot hear cases.”
Probate courts get involved after someone reports a person at risk due to mental or physical incapacitation. The guardianship system was designed to prevent relatives or others from taking advantage of vulnerable people. The Weekly has profiled several people forced into guardianships unwillingly and has fielded phone calls from at least 50 other local families accusing the courts of initiating guardianships simply to seize assets and parcel money out to lawyers, bankers, and others.
Some residents have been stripped of their right to hire an attorney, leaving them unable to fight back. Consider Dorothy Luck’s situation (“Luck for Dorothy,” March 19, 2014): Several of her relatives sued her after a disagreement about money. The attorney working against Luck was a familiar face in the probate courts, and he threatened to initiate a guardianship case against her if she refused to settle. Luck wouldn’t budge. She’d never heard of a guardianship case and was unaware of the incestuous nature of the system.
Before long, a guardianship referral appeared in Probate Judge Steven King’s court expressing concern about Luck’s mental health. Luck’s relatives protested. They said Luck wasn’t incapacitated, simply stubborn. They didn’t want her shackled with guardianship. But attorney Monika Cooper of the ShannonGrace law firm submitted a guardian referral. She described herself on the referral as being Luck’s friend, although Luck said they’d never met at the time.
King then appointed Lisa Jamieson, an attorney with whom Cooper works, to represent Luck, putting, in effect, the enemy in charge of Luck’s defense. Luck’s doctors examined her and declared her mentally competent. So King appointed one of his familiar courtroom experts to examine her and deemed Luck partially incapacitated. That was enough for King to put her in guardianship and place her money in a trust. Regular withdrawals began occurring to pay for the various attorneys, guardians, and experts appointed by King. Before long, half a million bucks had disappeared.
In another case, Ferchill held a hearing to determine whether Kathie Seidel was fit to care for her adopted daughter (“Saving Katia,” July 2, 2008). But Seidel wasn’t informed of the hearing and didn’t get to defend herself. Ferchill placed her daughter under guardianship and eventually barred Seidel from visits. To appeal the decision, Seidel would have to hire a private attorney and also put up thousands of dollars in a bond at the court’s insistence. She was effectively priced out of justice. She’s still fighting to free her daughter from guardianship.
“The average citizen has no idea this is happening until they’re roped into the system and can’t get out,” she said.
Seidel and others affected by court decisions formed Guardianship Reform Advocates for the Disabled and Elderly (GRADE) and began trekking to legislative hearings in Austin. That growing scrutiny is prompting judges and legislators to come up with new laws to strengthen their hands, Seidel said.
“Our small group [GRADE] and another group in Austin, the Guardianship Reform Supported Decision Making, have been making headway in showing the corruption of the courts, and so now they’re trying to get laws into effect,” she said. “I assume there is this rush to get laws in place so the reformers can’t have as much of an effect.”
More than two dozen bills related to probate courts have been filed so far. One bill gives judges more power to insist that defendants put up expensive bonds before appealing decisions. Another would allow judges to more easily sidestep having to recuse themselves. And yet another would give judges access to a person’s financial records before guardianship had been declared.
“The fallout is that they will have carte blanche to look into people’s finances, determine who has the most money that they can get access to, and then put them under guardianship,” Seidel said.
Senate Bill 1369 is one of the few that activists deem as friendly to the people rather than the probate courts. Sen. Judith Zafrinni, a Democrat from Laredo, introduced the bill that would require better reporting of fees earned by probate attorneys. Most critics say the ease with which attorneys corral people into guardianships and then charge them fees could be somewhat diminished if the information was better reported.
GRADE Director Debbie Valdez hopes to see that bill passed. Still, she’s pored over the various bills for weeks and said all but a few would empower judges at the expense of defendants.
“The person in charge of protecting a ward … is the person who appointed the ward, and that’s the judge, who becomes the ultimate guardian,” Valdez said. “We are creating a system where people who provide guardianship services are immune from civil liability. If we don’t fix this, we’re all going to be victims of it.”
Read this article at the Ft Worth Weekly’s website.