The Pitfalls of Senior Guardianship with Diane Dimond

Larry (00:06):

I'm Larry Barsh. And you are listening to specifically for seniors, the podcast, for those of us in the remember when generation

Larry (00:26):

Today's podcast is available, wherever you listen to podcasts and in video and audio on Spotify and on the specifically for seniors, YouTube channel

Larry (00:40):

Today's guest phone specifically for seniors is Diane diamond. Diane has enjoyed an award winning career in radio and television news. She is the recipient of the American bar association, silver gavel award, perhaps you know her from her coverage of some of the nation's biggest stories, including the murder of John Benet Ramsey, the Michael Jackson case, the OJ Simpson murder case and the Bush gore election recount in Florida in a career that has included NPR, CNBC court, TV, MSNBC, and the today show Diane is the author of three books on the criminal justice system. And now welcome to specifically for seniors. Diane,

Diane Dimond (01:32):

Thanks so much, Larry. I, I need to pay you as my agent. Thanks for that intro.

Larry (01:37):

Oh, anytime. Uh, the bit the Brittany Spear's conservatorship put the spotlight on an issue that has been on your mind for many years.

Diane Dimond (01:49):

Sure did. Yeah. Yeah. Uh, you know, back in 2015, I was, I'm still writing a syndicated column on crime and justice issues. And I got a call from a old friend of mine back in Albuquerque, New Mexico, my hometown. And she told me this story about her father being put under guardianship. And I, I couldn't believe what I was hearing. Uh, I mean, you, the court can come in and take over a person's life and put a complete stranger in charge of that person's life and take their civil rights away. I thought maybe my friend had gone bonkers or something, but I started to check out this system called guardianship, which is in effect in all 50 states. Some states like California, call it conservatorship. And I realized this is a tremendous flaw in the justice system. And so I started gathering cases of, um, frankly exploit of guardianships where people's lives were being turned upside down and that all their money being spent on total strangers to take care of them. And I wrote a lot about it in my syndicated column. And once I did the floodgates open and I heard from people all over the United States that this was happening to them or their loved ones. And so ever since 2015, I've been gathering stories, putting it all together. And I'm in the process of just, um, releasing a book on the topic. I, I hope everybody who's interested in this will grab a copy when it comes out, it's called the racket and that's what it is, Larry. It is a racket.

Larry (03:33):

Can you explain exactly what guardianship is?

Diane Dimond (03:38):

Yes. It is a system that involves the court in an individual's life. And then once there's a court order, that's the law of the land. Here's how it usually happens. Excuse me. Um, let's say there is a widow. Her children have an argument about what to do with mom. You know, what should she stay in the house? Should she go into a nursing home? Should one of us take her in? And they begin to bicker about it. And frequently one of these brothers or sisters will go to a lawyer. Hey, what do I do with mom? How come my brother wants to do this? I don't wanna do that. And the lawyers they should go to are an elder law attorney, uh, an estate attorney, someone like that. And they're frequently told, Hey, here's the panacea. Let's go get your mother put into guardianship or conservatorship because then you can be the guardian you'll, we'll get to the courthouse first.

Diane Dimond (04:40):

And the judge will name you as the guardian, frankly, Larry, that doesn't happen all the time. A judge, you know, has got a full docket and he says, wait a minute, there is dissension within the families. There's dysfunction. I'm not gonna name one of the family members to be the guardian. I'm gonna name a complete stranger, a for profit guardian, that charges up to $600 an hour. They can charge 150, 200, some charge, $600 an hour. And that person will take over your mother's life for her because you guys are all bickering and you can't figure it out well that guardian and or conservator, they may also appoint a conservator who just handles the finances. And a guardian handles the personal part of a, of someone's life, like their medical and where they live and all that, that person, uh, has tremendous power. They can tell the brothers and sisters, you know what?

Diane Dimond (05:38):

You upset the family, you, you upset the, the now ward of the court. And so I'm gonna bar you from seeing your mother because you upset her. And so in it's a system that is supposed to help families cope with their most vulnerable at risk people. But it, in many instances, Tara's families completely apart. Now having said that, let me just say, there are some great, wonderful guardians, conservators judges in this system. And, and it works out just fine. Usually when a family member is named as the guardian, but more and more frequently, that's not happening. And this whole cottage industry of guardians conservators, the health aids that they hire the, the whole, um, staff of people are paid for out of the wards estate. Hmm. So you can imagine what happens to inheritances. They don't go to the heirs where they want them to go. They go to pay total strangers, who've come in and taken over their lives.

Larry (06:41):

So this is a lot more involved than just a, a simple power of attorney.

Diane Dimond (06:47):

That's right. That's right. And, and that, you just touched on a really important part here. When you are ized, you go before a judge and the judge says, I'm gonna give you a guardian. You are stripped of your civil rights. You cannot hire a lawyer. You cannot travel without permission. You can't say where you wanna live. Sometimes they make you change doctors. Sometimes they put you in a home. You don't wanna be in, you have lost all your civil rights and all of the documents that you have prepared a will, a power of attorney, uh, an irrevocable trust, uh, end of life directives. They can all be ignored by the guardian. All the guardian has to do is go to the judge and say, you know, the power of attorney is with sister Mary, but, uh, Mary upsets the ward and Mary, I think Mary might be stealing some money.

Diane Dimond (07:43):

So I want permission to just remove Mary as the POA and boom, that elders, most of the people under guardianship are older. Um, their wishes are erased. Their will can be ignored. Their POA can be ignored. And this is all done with the judge's permission. So there's no recourse. You can't go to the local police and say, Hey, help me out here because it's not a criminal matter. It's a civil matter in a court of equity. And those are very different than say a criminal court. They have completely different rules, but just let the judge kind of do whatever they want.

Larry (08:23):

And the family has no recourse in this.

Diane Dimond (08:27):

Well, they can hire their own attorney and they can fight it. Um, good luck finding an attorney that wants to take on other attorneys <laugh> and take on this whole system. Um, and you can spend all of your retirement, all of your savings, just trying to fight this. Is there recourse? Um, I'd like to say yes, no, go before the court and, and tell the judge, your side of the story where frequently the judges don't wanna hear from you. They don't have time. They're listening to their own court, appointee, their guardian, the conservator, the something called a court visitor, uh, a mental health evaluator. They're listening to them. They're not listening to the family because in the back of their mind, they say this family is dysfunctional. I don't need to listen to them. They're a mess. We need to come in and take it over. So it's really hard to challenge it once it's in effect.

Larry (09:26):

So it's easy to start a guardianship mm-hmm

Diane Dimond (09:30):

<affirmative> yeah, very easy to start and really hard to get out of. It's a real tar baby situation. Uh, this is how a guardianship starts. Somebody goes to an attorney and the attorney draws up a petition for guardianship. Sometimes it's called an emergency petition for guardianship, and they put it before the court. That's all it takes. Um, now it can be a member of a family that, that starts this petition process. But in my many years of research, Larry, you can't believe some of the people who have brought petitions of guardianship. Uh, for example, in the state of Texas, there was a wealthy man, uh, older man, a little dementia. He had, um, uh, antique cars and he had a local mechanic fixing his antique cars and he forgot to pay him. He was a wealthy man, but he, he just forgot to pay the man owed him $40,000.

Diane Dimond (10:29):

A mechanic went to court with a petition to guardianship this man. So he could get his money. And the court granted it took that family about a hundred thousand dollars and at least a year to fight that and get their loved one out of guardianship. But that's how simple it is. A next door neighbor can say, oh, Hey, they're Larry Barsh. I haven't seen him lately. I, and they call the police and say, can you do a welfare check on Larry Barsh? The police will come, but they'll come with adult protective services. Adult protective services can then file a petition with the court to guardian is Larry Barch because we went into the house and, you know, it was kind of messy and he didn't have very much food in the refrigerator and he obviously needs help. Boom, you're in guardianship, you're in temporary guardianship, but once you're in temporary becomes permanent pretty quickly.

Larry (11:28):

And it's hard to remove this.

Diane Dimond (11:31):

Yeah, it's really, really hard. Uh, I have in the book chapters about people that do desperate things, they're so desperate to help their loved one. They'll, they'll take them away from the home in which they've been put or, um, they'll grab 'em at a doctor's office when they've gone for a, an appointment and, you know, take 'em to the local Denny's for or something. And then they're caught. And then they're charged with felony kidnapping there's case after case, especially Larry, I hate to say in your state of Florida where people who, uh, think they're truly believe that they're rescuing their loved one and the law doesn't see it that way. You have defied a court order, you have defied the guardian or conservator and you must pay. People have gone to jail for it.

Larry (12:23):

I know in Florida, they started a new law enacted in 2020 mm-hmm <affirmative>, uh, that provides for enhanced reporting requirements for guardians. Uh, it says that the necessity of guardians to secure court approval before signing a DNR guardians must be related to the allegedly incapacitated person, right? I'm not a lawyer, but this seems pretty vague protection

Diane Dimond (12:56):

<laugh> yeah. And it's like, you read these new laws and they're states across the country are passing these little bandaid laws rather than fixing the system. They're saying, well, let's make a guardian report more, or let's do this, or let's and you read these new laws and you think wasn't this shouldn't this have already been the case that a guardian has to report where they've spent the wards money and they have to file that annual report. And, uh, you know, it's, um, it's amazing to me, as I try to keep up with the new legislation or proposed legislation in all 50 states, how basic these things are, uh, you know, you, you hit on something really important there on the DNR. The do not resuscitate orders. This is how powerful a guardian can be in your state of Florida. There was a guardian, uh, who is still awaiting trial as we speak.

Diane Dimond (13:51):

Now, her name was Rebecca Farley and Rebecca Farley had so many wards appointed to her hundreds, 400 all over the state. There's no way one guardian can, uh, uh, visit and regulate the lives of 400 people. But that's what she had. And so to, I guess, help manage her caseload. She would just put, do not resuscitate orders on the Ward's charts on, in the hospital. And she did this to a, a veteran who had a non-life threatening problem, but he couldn't swallow well, mm-hmm <affirmative> she put a DNR on his chart against his wishes against his daughter's wishes. And she further ordered that his food tube to bypass the swallowing problem, his food to be kept if there was an emergency and this man died. And with the hospital staff standing by unable to do anything because of the DNR and his food tube was capped and he slowly over the next week died. So she is up on several felony counts right now. And again, this is how powerful a unscrupulous guardian can. Be're again, fabulous guardians. They Del, they dedicate their lives to helping other people, but there has come to pass a, this, this system has morphed into something that's really, really ugly. It can be really, really ugly.

Larry (15:25):

Uh, you mentioned felony charges. That was another thing in the Florida law. There didn't seem to be any statement about criminal background of a guardian or conflict of interest of a guardian.

Diane Dimond (15:40):

That's right. That's right. You, you know, most states don't require no state requires a guardian to be licensed. No, uh, few states, I think only 13 require them to get a certificate of training. So, you know, these are people that are put in charge of other, other person's lives. They don't have any, they don't have to have any accounting background, elder healthcare, uh, background, um, uh, uh, family dynamic. So sociology or psychology background, they don't have to have, you have to be like 18 years old and a us citizen and not be a felon. Well, background checks are very lax. There have been felons attach, uh, attached to people who, who have become their guardians and the whole system. Larry is a mishmash mess depending on the state you're in. And you know, some of the reform activists want the federal government to step in, you know, good luck with that.

Diane Dimond (16:43):

And, and can I make one more point, we're talking now because of, of your audience, about seniors being ized in 2015, when I first started investigating this, it was elders. It that's all I found the, the people in unwanted exploitive guardianships were older people with money, by the way, they always have to have money, cuz that's the, that's the point of this with the, uh, greedy guardians, the guardians who are greedy, but um, over the years, I've discovered the target audience for the, excuse me, the unscrupulous are it's it's ever widening it's now people like Britney Spears, it's people, young people who have inherited some money from grandpa or grandma suddenly they've got this pile of money and they become a prime target. There are people who've won workman's compensation, settlements, or, uh, medical malpractice, settlements. They become very ripe targets for this unscrupulous group. I have even found women in contested divorces where the opposing attorney will say to the husband, Hey, you know what? She won't settle. So let's, I'll tell you what we do. Let's just get her guardian eyes. Let's go to the court and tell them that she's crazy. And tell me some of the crazy things she's done and I'll put it in this petition, we'll get her guardianized and then she's declared incapacitated and she can't fight you anymore. So this is how bastardized the system has become.

Larry (18:20):

And that woman can't do anything about refusing to go into guardianship.

Diane Dimond (18:25):

No, no, it's a court order. I tell several stories in the book. I tried to explain all this, uh, this, the fiber of this system through stories of people who've actually gone through it. And, um, I found many women in several states, uh, Florida, New York, Ohio, Pennsylvania is a hotspot for this divorce business who tell their stories of trying to get out of it, of trying to fight the system. And, um, it's really, it's harrowing. It's really a harrowing situation for anybody who finds themselves caught up in it.

Larry (19:06):

Is there any way since this podcast is for seniors, mm-hmm <affirmative> for the most part, uh, is there any way that one can protect themselves against himself against being put into a guardianship? I mean in advance,

Diane Dimond (19:28):

Such a good question. That is the question. Yes. And I, I have a whole chapter in the book about things you can do, um, as vulnerable as your will, power of attorney IRO, irrevocable trust, as, as, as vulnerable as all those things are, make them anyway. Be sure that you get those documents in order make a power of attorney, uh, re uh, request of someone, but don't just name one person, name two or three or four people to be successors because the court an attorney cannot go in and challenge every single power of attorney designate that you've done. So number one, do that power of attorney. Um, if you know that your children fight amongst themselves, I suggest, and again, I'm not a lawyer, but this is what I would do. <laugh> I only have one daughter. So I'm, I'm great. But if, if you have children that are bickering, get your cell phone out, everybody's got a cell phone with a camera, right?

Diane Dimond (20:36):

Just get your cell phone out and tape, record yourself. Talking about your final wishes. Talk about what you think of a guardianship. Maybe a guardianship is right for you. Maybe you have three people that you would like to be your guardian. Put it on video tape. Talk about the irrevocable trusts that you have. Talk about your end of life decisions. Where do you wanna live at the end of your life? Do you wanna stay in your house? No matter the cost. Do you want to go to a specific home to live? Do you want to go to a specific relatives to live out the rest of your life? Do you want cremation? Do you want a burial and a public Memorial? I know this stuff's hard to talk about, but we'll lay it all out because if you put it all on paper and then videotape yourself being of sound, mind, and body on this date, hold up a newspaper.

Diane Dimond (21:37):

If you have to, to, to, uh, show the date on which you're doing it, it's really, really hard for a judge to ignore those very specific wishes. And, and here's one more suggestion. Get the whole family together. You know, like you would on Thanksgiving, but get everybody around for dinner. Even if they fight with each other, try to get everybody at the same table, set up your camera and record the session with them talking about all of this, tell them this is what I want. This is what your mother wants. This is where we want to go. This is who gets what property the land in, uh, New Mexico goes to you, Billy and the land in Maine goes to you, Susan, and put it all on videotape and then put in your documents and on videotape that anybody who contests your wishes is automatically disinherited.

Diane Dimond (22:38):

That stops a lot of bickering. <laugh> people know, oh boy, I'm gonna be out in the cold. They somehow find a way to, to come together. And the last suggestion is go to family mediation. I know, I know, I know. I, I don't really wanna go to any stranger counselor to talk about my inner familiar fighting, but mediation instead of going to court is a great first step because professional mediators can heal a lot of family wounds. And a lot of this stuff, Larry begins because of some childhood slight or some, uh, perceived, uh, wrong happened 20 years ago. And, and the siblings are still mad at each other because of that. So get your documents in order mediation before court, and do not think that a lawyer is going to help your widowed mother or father live out a fabulous rest of their life because that's not what lawyers are there for.

Larry (23:49):

These are,

Diane Dimond (23:50):

I hear the exasperation in your voice.

Larry (23:52):

No, these are tough questions. Yeah. Uh, is, is there anybody who guards, the guardians, anybody who monitors, what they do?

Diane Dimond (24:05):

You, you ask the best questions and, and thi this is a question I've been asking for years. And the short answer is the, the person in charge is the judge. The judge starts a guardianship, allows it to continue and has the choice to listen or not to the family's complaints about the system. And they're too busy. They don't have enough staff. They'll tell you. And frankly, I found some judges that are just control freaks that want done their way, and you can't tell them what to do. So, you know, good luck trying to appeal to the judge to guard the guardian that he appointed, or she appointed. Then you go to the police and you say, you know, this guardian won't let me in to see my mom. It says, I upset her for goodness sake. It's my mother. The police will tell you and the district attorney and the attorney General's office in your state will tell you, oh, you know, we do criminal things.

Diane Dimond (25:07):

That's a civil matter. A judge has already ruled. You gotta go back to the judge. <laugh> you see the catch 22. Um, so who's guarding the guardians. That's the primary question. And they have all these little laws, like the ones you quoted that have just been passed in Florida and all these other states, but they all have vague language and loopholes that the unscrupulous in this system can get around it. For example, uh, there's many states have passed a law that says a judge must rule on the least restrictive way to handle this ward of the court. Well, what does that mean? The least restrictive way. They could try to figure out a volunteer group to come and help the person, or they could go with something that's called supported decision making for this person. But it's easier just to gave it down and say, okay, guardianship approved, next case you, you see what I mean? These laws that they're passing always say, the guardian should do this. And that every year they should file a report. And if they don't, they should be fined. Well, okay. Who's going to say what the fine is or should they be it's now we're back to the judge. Again, who's too busy. Doesn't have enough staff or doesn't care. So it, it really is a catch 22.

Larry (26:37):

Are these special judges like family court judges or are they just any judge can, uh, set up a guardianship?

Diane Dimond (26:47):

Well, it's, uh, it depends on the state that you're in. Um, <laugh> in Pennsylvania, for example, it's the widows and orphans court judge. Yep. That's what they still call it. The orphans court judge, uh, some places it's a probate court judge. Some places it's a us district court judge. No, just a district court judge, not federal. Um, so it depends, but I'll tell you. And I don't, I don't mean any disrespect on this, but it's the fact, when you look at the hierarchy of judges, you know, the us Supreme court, local federal courts, us district courts, the court of appeals, the whatever, all the way down at the bottom is the family court judge or the probate court judge. They're, they're the judges who, you know, they were lawyers and didn't make it in their private practice or whatever. They became a judge. You become an elected official mostly.

Diane Dimond (27:42):

So, you know, I don't think they have enough training to deal with this problem. And as you know, there is a silver tsunami coming, baby boomers, we're all getting old. Our parents are really old and it, this problem is just gonna get worse. We've got to get our arms around it. The problem is nobody keeps a database. No state keeps track of how many, uh, guardianship cases there are federal government doesn't keep track. There's no registry for guardians who have, uh, been convicted and, and more and more guardians are being convicted and sent a federal prison. Some of them. So, you know, until we get a big database going, have every state count up, how many cases have you had? Who are the judges? Are the judges naming the same guardians over and over again? Are, are those guardians actually giving campaign contributions to these judges as a way to get more cases, let's get a database going because unless we know the scope of the problem, we'll never get our arms around it. And they've been talking about getting a database since the 1980s and it still hasn't happened. Gee, I wonder why

Larry (28:56):

You just answered my last question, uh, about suggestions for improving the system.

Diane Dimond (29:04):

Yes. I have a whole, uh, chapter toward the end of the book about possible solutions and there are solutions. Things have been changing slowly, slowly in several states. Um, I've mentioned this thing called supported decision making. Uh, a lot of people under guardianship are, um, physically or mentally handicapped. For example, down syndrome. People have been put under guardianship when in fact they can manage their own lives. Uh, I have a case of a young man who, uh, there was an accident at birth. He has CE mild case of cerebral palsy. He looks walks a little different and he speaks a little differently, but he's not stupid. He's under guardianship. So, you know, one way to help people like this is this thing called supported decision making, where they have a group of people from state agencies, their families, their friends that come together and help them make life decisions.

Diane Dimond (30:07):

Do you want to have that surgery on your back? Cuz it might make you feel better and they talk it through and come to a decision. Do you wanna get that apartment or this apartment over there? And they talk, they support the person in making good decisions. And this has been shown to work. I, I tell a very touching case of a down syndrome woman, uh, pioneer in this supported decision making, um, that shows you it can work. It shows you what people can do for themselves instead of declaring. Well, they can't do anything. Let's put 'em in guardianship. So supported decision making is a good idea. There's something called elder care commissions. And it started there in Florida where volunteers and paid people, professionals come in and they sit with the ward. They sit with the elder person, they sit with the physically disabled, whoever the ward happens to be and they low and behold, they ask them, what do you want?

Diane Dimond (31:13):

I mean, this is the, the depths of, to which this case, the, this, um, system has gone. We forget to ask the ward, what do you want? So elder care commissions are, is a very hopeful thing. I think, um, there's also a movement to, um, make these registries for judges and conservators and guardianships for whom there are multiple complaints who's complaining. Was there an investigation? Does this person have too many black marks against them? Should they be taken out of consideration for being a court appointee? Um, that anyway, I could go on and on, but there are things that we could do to change this system and they're not being done. And I'll tell you, Larry, I think it's because there's a huge lobbying effort in every single state and at the federal level of lawyer groups, guardianship groups, nursing, home groups of financial institutions. They, they don't, there's a whole cadre of people that water down these bills that come out and make them have such vague language that the loopholes are enormous. <laugh> they're just enormous.

Larry (32:32):

Tell us again, the name of your book and when it'll come out.

Diane Dimond (32:37):

Well, uh, it's, it's called, I want to call it and I think the publisher's gonna go ahead with it. I wanna call it the racket by Diane diamond. My publisher is Brandis university press, uh, and it will be out next year. So early next year. I hope there's a problem in the publishing world now with supply, uh, and binding and you know, a lot of it's done in China and we know the situation with China now. So things are sluggish in the publishing industry, but I hope to get it out next year. It will be out next year.

Larry (33:09):

Diane, this has been a very important conversation and I'm sure the listeners are gonna be helped by it tremendously. Thank you so much for coming on specifically for seniors.

Diane Dimond (33:25):

Thank you for having me. And I agree. It is such an important situation and time in our country at it's really a civil rights issue and I hope people pay attention. Thanks.

Larry (33:40):

If you found this podcast interesting, fun or helpful, we'd appreciate it. If you tell your friends and family and click on the follow or subscribe button, wherever you listen to podcasts until next time I'm Larry Barsh and you've been listening to specifically for seniors.