Welcome to the voices in bioethics Podcast. I’m Anne Zimmerman and today I will discuss guardianship with Dr. Sam Sugar, an internal medicine specialist who exposed widespread corruption in the guardianship systems. He’s the author of Guardianships and the Elderly: Perfect Crime. It’s estimated that at least 1.3 million older adults and people with disabilities are under official guardianship in the United States. The numbers are likely higher than that estimate. Guardians control at least $50 billion dollars in assets, with some estimates much higher in the hundreds of billions. The US Senate Special Committee on Aging acknowledges the issue. There was a press release on their website stating, “Many people under guardianship need permission to see a doctor, take or refuse medicine, live in their own homes, spend their own money and even vote, they also face increased risk of abuse, neglect and exploitation by unscrupulous guardians. Welcome, Sam, let’s talk about professional guardianship. Can you give a quick definition. Of course, and thank you very much for having me. This is an important discussion for practically every person in the United States. Because guardianship is such a draconian situation where an individual’s rights are removed by an administrative court, meaning that a person under guardianship has less rights than a convicted serial killer. That situation has allowed a certain number of guardianships and a certain percentage of professional guardians across the country to take advantage of this system, which was originally designed to protect the public from people who might be dangerous to the public. And to protect those individuals from the public. It was begun, I believe, with the best of intentions, but currently in the United States with certain twists here and there in all 50 states, an individual who is deemed incapacitated can be adjudicated by an administrative law judge in a court of equity as incapacitated and lose all of their rights, lose all of their assets, lose everything, literally. And that can happen in a blink of an eye. And it can happen for a number of different reasons, which I’m sure we’ll go into. But a very short definition is that a guardianship is put in place, and some people some places call it conservatorship, a guardianship is put in place when the court determines an individual needs the courts protection.
And you found significant corruption in Florida’s probate courts. Who are the players in the guardianship complex and how are they related? And are the relationships themselves a sign of corruption? That’s the $64,000, for the people over 60, that’s the $64,000 question. Is there corruption in the guardianship system? I think the answer is an unequivocal yes. It’s been proven over and over again, there are some very important and somewhat notorious cases all over the country. And we can go into those later. But the basic corruption of the guardianship system lies within the system itself, in which an equity court, and we should pause here for a moment to determine what an equity court is. An equity court used to be separate from our legal system until 1939, when equity courts and courts of law were joined together. An equity court exists to administer, and in this case, the probate court exists to administer the holdings of a dead person. That’s what probate is all about. But it has been extended to deal with people who are only dead in the law, meaning they’re still breathing, their heart is still beating, but legally, their rights have been taken away so that they’re dead in the law. The corruption comes about by the relationships between and within what I refer to in my book, Guardianships in the Elderly: The Perfect Crime, as the court insiders. And it’s not like these court insiders, which consists of the judge, the lawyers, and the guardians. It’s not like they’re going around with a gun holding up banks. They have figured out a way to profit immensely from the belongings of others which are forfeit to the court in these proceedings. So yes, there is corruption.
So let’s touch on decision making capacity, and what that really means legally. Who’s involved in declaring that a person lacks capacity? And in Florida any competent adult can go to court to determine another person’s incapacity. So what are examining committees? And how can the person who’s subjected to a guardianship petition, or who’s already under guardianship, provide evidence to demonstrate their own competency or capacity?
Wow, you just summarized my whole book. Let’s take that one piece at a time. Incapacity is a very fungible word. It can mean anything from being in an absolute coma, unresponsive in a coma, to forgetting your car keys one time too many. And because of that flexibility and the plastic nature of that term, which by the way was created specifically to perform that function by the ABA, I might add, the American Bar Association, incapacity as determined by a judge and the judge is the sole arbiter of that decision. Because in equity courts like this, there are no juries. They’re even in most cases specifically prohibited in equity courts. The judge can’t just snap his fingers and call you incapacitated, even though an attorney might appear before the judge and claim that someone is incapacitated. The judge relies, specifically in Florida but generally throughout the country, on a variety of outside sources, and in Florida, they’re called examining committees. The examining committee structure in this state where I live, Florida, consists of at least one person who is allegedly a doctor, an MD or a DO, but not a PhD, and two other people. They can be laypeople. They can be nurses. They can be social workers. They can be anyone. I’m aware of one case, where a state trooper was used in an examining committee for all. If two out of the three of those write down on a piece of paper that you should be in a guardianship, you will be, it’s that simple. Now, the obvious holes in that system are that none of those people except the one person who is supposedly an MD, although I was just recently involved in a case where an unlicensed doctor, licensed in New York but not licensed in Florida, aged 84, was doing incapacity exams for the same judge for years. So there’s a lot of pitfalls just in that one niche of the system. But if two out of the three of those of those individuals, for whatever reason, in their very short, very superficial, very chancy examination, decide that someone’s incapacitated, they will be. They will be declared as such. That I will tell you that after reviewing hundreds of Florida cases and thousands of national cases, over my 13 or 14 years in this space, the examinations that I’ve seen are ridiculous, absolutely ludicrous. They should take over an hour. I’ve seen examinations that appear to have taken less than five minutes that take place in a Wendy’s restaurant. So the guardrails around the examining committee are very flimsy. That’s how incapacity is determined. The initiation of the case is usually done by an attorney appearing before a probate court, equity court judge, saying, “Your Honor, someone in your jurisdiction is liable to be abused, neglected and exploited. Let’s do something about that.” And therein lies the first flaw. For someone to go in front of a judge and tell that story when it isn’t true is the first taste of corruption. And this is where we have seen ex-wives or ex-husbands, disgruntled business partners, or just plain people who want to make money over guardianships, initiate these guardianships knowing that they will be completed and executed. That’s the first level. I saw that in Florida, really, any competent adult can bring this, so, some people have been subjected to guardianship based on something that their neighbor or someone living nearby, someone in their community brings. Why do you think it is that there’s no real legal relationship necessary? They don’t really have to have any family relationship. Is that better? Or is that part of what’s more dangerous?
So let’s get into what really drives the entire guardianship system, which is statute. And statutes are determined by legislators and the most potent legislative force in every state in the United States is the Bar Association. No legislation ever gets passed, especially in this realm, without the blessings of the State Bar. It’s not a Bar Association’s just the state bar. It is in the interest of the bar to increase the earnings of its members and giving the widest possible doorway to the initiation of guardianships does exactly that. I think that when the laws were written, they were written to for the benefit of the elderly and the infirm so that a neighbor could go before a judge if they had a legitimate concern. For example, during COVID. When an elderly person had COVID, and they were confined to their home, and the newspapers piled up in the driveway and the mail wasn’t collected. And the individual called the police for a wellness check, which is another driveway into guardianship, that they could receive the care they needed. And I believe that those concerns are and were legitimate. However, whenever you put something on a silver platter, and someone has an appetite for what’s on that silver platter, human nature will tell you what happens next. So let’s focus on due process. People seem to be losing the ability to exercise fundamental rights. So how is it possible that so many older adults are subjected to terrible infringement on personal liberty as well as the financial and medical decision making? What rights specifically might a guardian deprive the ward of? Well, when an elderly or non elderly person is subjected to a guardianship they lose essentially, all of the rights granted to American citizens. They also lose some of their human rights as well. In the establishment of a guardianship the judge in any individual case ultimately decides what rights are removed. For example, the right to your own funds, the right to determine who you consort with, the right to determine where you live, the right to vote can be taken away from you. And generally speaking, with exceptions, the guardianships that I’ve been involved with over all these years, are what’s called plenary guardianships, which meetings every right that the person has, is forfeit, and that that person is now a piece of property, a piece of chattel, that is owned, owned, O-W-N-E-D by the court-appointed guardian, who generally doesn’t know the individual, has never met them before, has no idea of their religious preferences, their living preferences, who their doctors are, what their pharmacy is, what they like to eat, every tiny little and every large aspect of life is now completely under the dominion and control of somebody who has never even met the ward, that’s what the person under guardianship is called, the ward. A ward needs a guardian, and a guardian owns a ward. Now just imagine for a moment that you’re a sentient human being, let’s say you’ve been in a hospital, you broke your hip, and you needed some help for a while. But you’ve been managing your own affairs, you decide what you want to spend your money on, where you want to go, what part of your family want to visit this week, what movie you want to go see, what restaurant you want to go to. And overnight, literally overnight, all of those abilities and rights are stripped away from you, and you are under the absolute domination and control of a total stranger. Imagine how terrifying that is. And worse than that, most of the time in these situations, you are moved out of your longtime home and placed in a senior warehousing facility. Just stop for a moment and imagine how you would react to that. And that’s why you’ll find people screaming at night in nursing homes begging for help. It’s not the only reason but it is one. And it’s tragic because it’s so unnecessary. And I think what a lot of our listeners perhaps don’t have a grasp of is if you have friends and family you still could be put under the control of a guardian company and a complete outsider that you’ve never met. And then your family members who do care about you, if we take a loving family member in that relationship, they can’t always get you back. Can you explain why that is? Absolutely and it’s one of the more tragic aspects of guardianship. Let’s create a little scenario. Mrs. Smith, who has a daughter and a son, falls, breaks her hip, winds up in the hospital. She’s unconscious from the anesthesia for a while and winds up in one of these guardianships. Well, her son who is always let’s say unemployed, realizes that he can get a windfall of his mother’s money if he becomes the guardian. He can then do whatever he wants with her. That’s called a family guardian. And it’s a little bit different from the professional guardian, because family guardians don’t get paid like lawyers and guardians too. But then there’s the sister of Mrs. Smith, who also loves her mother, but realizes that she’s better off at home, the two of them will start arguing through their lawyers in court. And one of them will say, well, here’s the will and she says she wants me to be her guardian. And the other one says, well, she was incapacitated when she wrote that will. So they’re arguing and, of course, the meters running on both of their lawyers. But then the third lawyer gets involved. And that’s the lawyer demanded by Florida and many other states’ law that every professional guardian have a lawyer, argues with the court says, A pox on both their houses. I’m going to appoint an independent professional guardian that I, the judge, can rely on. And that’s exactly how this happens. It’s a setup. The professional guardians who are corrupt, and I’m saying that out loud. A lot of people get into trouble for saying it out loud. But they understand how the system works better than the judges do. And even some of them better than the lawyers do. Although the lawyers who deal with this who litigate in probate court are proficient experts in every nook and cranny of the law. And if you’re a lawyer who’s a family lawyer goes up against one of these seasoned, probate litigators, there is a 100% likelihood that they will lose because you talked about relationships within the court. Probate litigators live in these courtrooms, they’re there every day. They know the judges personally. They eat with them, they golf with them, they drink with them, and whether it’s intentional or subconscious that has a drastic influence on judges decisions. So family members are at a terrific disadvantage when they argue with each other over these situations. And the best advice you haven’t asked me but I’ll tell you the best advice I can give to any family who’s ever heard the word guardianship, settle your differences yesterday. Do it immediately. Because if you don’t, it will cost you in ways you cannot even imagine. Family dysfunction opens the door to court corruption. And is there any way to avoid it through paperwork? Can you assign a pre-need guardian? And then should you feel set and confident if you have done that, if you have created paperwork to say who your guardian will be should it happen that you fall into this category of having been deemed incapacitated? I wish I could say yes, but the fact is that the most, one of the most, egregious aspects of the dysfunction in these administrative probate equity courts is the fact that they routinely abrogate and nullify Advanced Directives. Advanced Directives are usually three documents: will, durable power of attorney and a healthcare power of attorney. And it’s in those documents that you would make such a statement. But the court has the ability, and the lawyers have the ability to cast doubt on them. And the court has the ability to nullify them in a heartbeat. And it happens more often than you can imagine. So executing valid Advanced Directives should be, it should be, the way to prevent guardianships. In fact, that’s why they exist. But unfortunately, the way the courts are set up with ultimate power over innocent human beings. And I use the word innocent advisedly, these people haven’t broken any rules or laws. They’re innocent, law abiding individuals who are guilty only of growing old in America, these courts can do almost anything they want. They can break a trust, they can abrogate Advanced Directives. And for the most part, the judges who rule in these courts are good people and honest people. But there is a small minority of these courts, and we point them out in the book, that are simply doing a disservice to society and committing heinous crimes against innocent elderly people in America. I think there’s also the misconception that that people were sort of unbefriended and alone, which sometimes might be true and other times not. Is there any way to limit this power or use of guardianship companies when people do have other adults in their life that could take that role? How to guardianship companies, that sort of a corporate development, become so strong and so powerful in the courts. Again, I would wait to the players in this game, guardianship companies exist for a reason. And in fact, a number of guardianship companies that I have come to deal with over the years, exist as 501 C 3 companies, which means they don’t pay any taxes. Now, that is an interesting dimension of this, because in a number of the cases that I have personally evaluated over the years, I have seen valuables disappear, for example, jewelry, paintings, gold, diamonds, even things like silverware, simply disappear. And when the family or whoever says whatever happened to the Van Gogh painting we had in the living room and in my mother’s house, the answer is, well, it’s not on the inventory. So you must be mistaken, it was never there, except for the cases where those valuables are found by accident in the possession of the lawyers or in one case, the judge, so the first hole in the system is what’s called the inventory. And the inventory is when a guardian, unaccompanied, unmonitored, alone, goes into the residence to inventory all of the assets. And what I found as a pattern is those inventories are frequently missing the most valuable items in the household. So we have the problem with the court being overly punitive, I might say we have the problem with the relationship between the judges and the court and other court insiders. We have the problem with the examining committee, we have the problem with the inventory. We have the problems, for example, with the guardian failing to pay the ward’s bills. Now you might ask how can a guardian say that they’re doing a good job when they don’t pay real estate taxes on the wards home? Or when they don’t pay for repairs on the ward’s home? When they don’t allow proper medical care or prescriptions? How can that be? And the answer is always the profit motive. Let me explain. In one notorious case, an elderly woman was put into a guardianship and her home was vacated while the elderly person was put into senior warehousing. There was a hole in the roof that the guardian refused to put any repairs until the house was flooded. Once the house was flooded, the guardian went to the judge and said judge this house, it may list for a million dollars on the market, but this house is flooded. It’s only worth $200,000. So, judge, our bills, the lawyer and the guardian, our bills are close to $200,000. And this woman has run out of assets. So we got to sell the house so that we can get paid. Now that house only needed a roof repair, and maybe $10,000 or $20,000 worth of repairs inside. They put that house on the market, or they say they do and they get an appraiser who is working with them to appraise the house at whatever they say, it’s 200,000 minus the cost of repairs. So house is worth less than $200,000. They do not put it on the market. They give it to a real estate agent who doesn’t advertise it. And the scheme comes into play where the guardian and one of their friends, usually the attorney involved, buys the house for $100,000 and then sells it once it’s repaired for the full million. Nobody ever reports this to the judge. And this I can document in case after case after case in Palm Beach County, Florida. And I’m positive it happens elsewhere. We call these straw man sales. And there’s even evidence the charitable institutions get involved in this as well. I don’t mean to focus on this too much. But all of this happens at the expense of this poor, unfortunate, completely vulnerable, the most vulnerable among us, individual. It’s heartbreaking, and it’s infuriating. The financial aspects are especially heartbreaking. And then they also really deplete the actual heirs, the people that you know an elderly parent really may have wanted their assets to go to in the end. What recourse do they have? What can heirs do to sort of sue the guardianship or the guardianship company? Is it just too late because the assets are gone and sold. Another tragic aspect of this is how family members who are truly concerned or even superficially concerned about their elderly loved ones are forced to spend every penny they have on more lawyers because at least in the state of Florida, the legal fees to protect the ward are paid to the ward’s lawyers. So it’s in their best interest, in the ward’s appointed lawyers, through the guardian, to have more and more and more phony litigation. Whereas the family, the loving daughter, the loving son, the loving father, whatever, is paying for this out of pocket at commercial rates, these probate litigators. And by the way, the number of attorneys on average, that have to be hired by the family of wards during a guardianship in a contested guardianship, six, you go through six lawyers and families frequently go into debt to try to save their parents because they see their suffering. But what’s even worse is when a family protested too much for the judge. If you scream in court, if you’re aggressive in court, the judge will give you the ultimate punishment. What is that? You can’t see your mother anymore. Isolation is the cruelest form of court punishment, and it’s inhuman, and I’ve seen it so many times when the court gets a little bit nervous that their case is shaky. These lawyers, these probate attorneys know every trick in the book, and they will claim that Mrs. Smith’s daughter is a danger to her mother. And they will then arrange for the court to make an isolation order, which is so horrible. It’s like her daughter’s going to go in and what, kill her ,take her money. She didn’t have any money. It’s really the cruelest part of this entire scheme. And the fact that it goes on after all these years of so many exposés, so many articles, so much testimony, is just an indictment of our legal system. And, by the way, before I forget, you mentioned statistics at the beginning of our talk, those statistics are way out of date. 1.3 million guardianships is a ridiculous number. It’s probably twice or even three times that. And 50 billion, no. It’s way more than that. As America has become more affluent, so have the victims of the guardianship scam. And it’s an enormous amount of money. But you know why we don’t have really good figures on how much money that is, it’s because up until very, very recently, the states did not keep any records. They didn’t. So nobody even knows how many Guardian ships there are, let alone how much money they’re worth. In the state of Florida, several years ago, with the cooperation of one of law enforcement branches. There was an estimate that Florida itself had around 50 – 60,000 guardianships, and that approximately 7000 of them closed, meaning died. And approximately 7000 new ones were made a year. This includes professional guardianships, family guardianships, and state funded guardianships for the poor. That’s a lot of guardianships with absolutely no statistics. The perfect, right. When I was looking for statistics, I found on the money side $50 billion to $250-300 billion. So it is hard to know where to look for that information. I would think if government is not providing that and states and counties don’t have to provide that to any federal organization that some investigative journalist would be able to come up with a really accurate count of both the guardianships and the money. Let me speak to that. Last year in the Florida Legislature, a well meaning official from one county in Florida held some public hearings and was able to push through, almost push through, some legislation that would demand and accounting and a database for all guardianships. And at the last instant, the last possible legislative instant, the bar came into the picture and said, Okay, you can have your database, it’s fine, but only the judges can see it. Can you imagine? The whole purpose of the database was to shed light on this whole system. And within one day, literally one day, the very last day of testimony, the bar insisted that this information was too difficult for the public to understand, too important that it had to be hidden. Well, from my perspective, that just tells you everything you need to know. So the public in Florida will not have that information nor will any investigative reporter. Only the people who create these situations will be able to see it and ultimately do whatever it is that they want to do with it. That’s terrible, a terrible lack of transparency, that seems really pervasive in the entire guardianship industry. I want to turn to something you mentioned earlier about medical care and advance directives and sort of the whole hospital nursing home situation in guardianship. Once an older adult is unable to see, perhaps, their own children or relatives, are they at more risk of things like extra unwanted sedation to sort of calm them while they’re in this unwanted situation? And what becomes, sort of, overmedication for some things and undermedication for others? How is it that a guardian who might, sort of, work for a guardianship company but not have something to do with medical care, when they become the medical decision maker, what are they basing those decisions on? Are they even expected to do what is in the best interest of the ward or what would the standard be for them? That’s a great question. Once a person owns you, once a guardian owns you, their motivation, believe it or not, is to keep you alive. They benefit from your longevity. But they do not benefit from your good health. They do not benefit from the alleviation of suffering. They benefit from the institutionalization, whether it’s in a hospital, nursing home, extended care facility, or any other senior warehouse, because they get paid every month, and every time there’s litigation, and every time they have to write a report. And so, for example, I’ll give you an example for real life, a guardian has to take in a person’s mail, right? It means they generally have to go to a mailbox. Now guardians get, or in the past, got around 65-85, professional guardians, $65-85 an hour for anything they could say related to the wellbeing of the ward. So taking in the ward’s mail six days a week at thirty minutes, let’s just take thirty minutes at $65 an hour, six days a week, fifty two weeks a year, for one ward. You know what that number is? It’s a lot of money. But let’s say you have fifty wards. And you have to take in fifty wards’ mail every day except Sunday or you have to take them shopping or you have to order a nightgown for them. All of those require billing from the ward. So let me tell you a brief story about the $5000 nightgown. A ward, an elderly woman who was living in a nursing home and had no assets whatsoever, wore through her nightgown, her gown that she wore in the nursing home. So the family was concerned and called the guardian who went to the nursing home. Now remember the meter’s running this whole time. Went to the nursing home and determined that yes, this woman needs a new nightgown. She then had to call her lawyer to prepare a motion before the judge to replace the ward’s nightgown. The lawyer went to court, spent an hour getting there, an hour getting back, and an hour waiting for the judge. He put the request for the judge in front of the judge and a week later the judge ruled that yes you can go buy a nightgown for this person. The lawyer then called the guardian, the clock is ticking, the guardian then called a shopping service at a local department store, which is again they’re charging, to buy a nightgown for the right size for this woman. They then called the delivery, now I’m not making this up, this actually happened, called the delivery service to deliver it to the nursing home where the ward finally put on a new nightgown. That new nightgown cost $39.95. The bill for that $39.95 nightgown was over $5000. That’s all you got to know. And it came directly out of the ward’s assets, by law. It really adds insult to injury that the wards are the ones paying for the whole system and they really are the victims of it, not beneficiaries at all. So, lastly, what message do you have for the public? I think the most important message from a discussion like this is to send out a signal of awareness this does happen, it can happen to your family, it can happen to anyone. And when it does happen, it’s a catastrophe emotionally, financially. And in every other way you can imagine guardianship is one of the most complex and difficult to understand situations that an innocent elderly person could possibly be exposed to. And when I tell people get your family together, make sure your disagreements are resolved, make sure everything about you and your loved one is in place so at least you can have some degree of confidence that this won’t happen to you. But no matter what you do if there is someone or something in your family or in your business dealings that makes you vulnerable, this could happen to you. You need to take the appropriate steps. You need to have advance directives even though they can be overturned. But unfortunately, once a guardianship takes place, especially in some of these very questionable court districts, there are only two ways to escape a guardianship: in a body bag and out of the country. And that’s the saddest statement I can make. I want to thank you for joining us today. This has been the Voices in Bioethics Podcast with Dr. Sam Sugar, author of Guardianships and the Elderly: The Perfect Crime. Thanks for being here today. Thank you for having me.