Beware Of Predatory Elder Law And Probate Lawyers

Editor’s note: The new cottage industry of the 21th Century is looting the estates of the disabled, the infirm, the elderly and then 'killing them off' while the 'judicial officials reap the benefits of public employment. This new industry is in full production in the Probate Court of Cook County. Lucius Verenus, Schoolmaster, ProbateSharks.com

 

Beware Of Predatory Elder Law And Probate Lawyers

March 17, 2013 by FiduciaryWatch

Few would allege that elder law and/or probate attorneys are completely unnecessary but due to causes as simple as greed and as scandalous as often times complete disregard of the Constitution in local and county probate courts, many predatory elder law and probate attorneys have begun unconscionably enriching themselves at the expense of their clients and everyone else involved, however, innocent their involvement. Abuses have become commonplace enough, one should “Beware Of Predatory Elder Law And Probate Lawyers.” A cottage industry of predatory elder law and probate attorneys make their primary incomes “living off the land,” by attaching their fees, which are often out of control, to the estates and assets whenever there is some controversy among families that causes one family member or another to “lawyer up.”
Unfortunately I have twice been victimized in such situations and I am certain that thousands, if not millions, more Americans have had similar experiences. My first experience involved the estate of my second ex-wife’s father. He had intended to give his estate, which included property in Oklahoma with at least one oil well on it, equally to his three children. He had set up a trust, but had appointed the wife of a cousin as the Trustee of the estate. The Trustee was not to be trusted and in addition to rifling through my ex’s father’s safety deposit boxes and emptying his bank accounts using a power of attorney after his death, employed the services of an attorney to keep the family at bay. The ploy was successful but resulted in the attorney selling the property in Oklahoma and using most of the proceeds to pay his own fees, giving a crumb of just $1000 or so to the Trustee.
Later, when I and my second ex split up in Seattle, I found myself in a caretaker role for my now elderly parents in their home in Colorado. In many ways this is a cautionary tale for adult children who end up in a caretaking role for their parents. If my case is typical at they can expect little, if any, support from siblings or other family members. Worse, as, parents get less and less able to take care of themselves and unless precautions are taken, they are vulnerable to not only interference from but potential accusations emanating from siblings either bearing a grudge or who want to control the estate and assets of parents whose time appears short. Of course, elder law and probate attorneys feed voraciously on such family turmoil.
Being exceptionally nice has real dangers, especially if an estranged sibling or family member “lawyers up.” Following my divorce from my second wife in Seattle, I visited Colorado and was asked by my mother, who had been diagnosed with COPD some years before, was on oxygen and wheelchair bound for the most part, to move in and help my father with her care. I did so and got along very well with both Mom and Dad. When she died in 2009, Dad started to go downhill mentally and physically. Dad had a small stroke (TIA) somewhat prior to Mom’s death while I was playing chess with him one night. I called 911 and he was transported to Swedish Hospital where it was found that he had three blood clots in his leg and decided to treat that with Coumadin.
Less than a year before his major stroke, I had taken him to Kaiser where he was diagnosed in the Memory Clinic with dementia. Although there were periods when he was very lucid these became shorter and he was not safe to drive, did not remember to pay bills, despite the fact that he had always been very financially responsible in the past. In fact, it was during the visit to the Kaiser clinic that I became aware of the fact that his Kaiser membership had been dropped because he had forgotten to pay premiums. After months of fighting with Kaiser I was able to get him reinstated, just days before he had his big stroke. The doctor at the Kaiser Memory Clinic was of the opinion that it was Dad’s high intelligence that had allowed him to pass these tests in the past.
Since Mom died and to a lesser extent prior to that, I have had a very difficult relationship with my youngest sister, as have my other siblings and other family members including my daughter. Additionally, in the my sister had “borrowed” significant amounts of money from Dad and I knew that if Dad was to die or become ill she would likely do what she could to take possession of the house and its contents. I suspected she would likely try to get a power of attorney from Dad and I decided my best defense would be to get one prior to her getting one. During a more lucid moment I was able to talk to Dad about giving me a power of attorney, with which I intended only to pay his bills as needed, (including the recurring bills for a funeral plot next to Mom’s, credit card bills, continuing medical insurance, etc.) and to be able to make medical decisions if he was unable to do so.
Naturally my sister was livid when she was told that Dad had given me a power of attorney and using falsehoods, including a false accusation that I had been imprisoned for a violent crime and thereby presented a danger to Dad to convince some family friends to give her money to get a lawyer to overturn the power of attorney and award her guardianship and control of Dad’s affairs. She and her attorney filed a petition to the court which was filled with numerous false accusations, and because of the nature the accusations, was able to get emergency guardianship of Dad in a hearing that no other member of the family was informed of. Because the law states that the guardian of a person cannot also be the conservator, the court appointed an attorney to be conservator and to control the assets of Dad. The other members of the family were notified that a hearing would be held to make permanent orders. I, and several other family members filed objections to Ellen’s appointment as guardian. I also filed an objection to the attorney being appointed conservator.
Ellen’s lawyer responded with an answer to my objections. In the response he officially dropped the accusation concerning my imprisonment for a violent crime, which could be checked but did not withdraw other accusations that, although disputed by other family members as well as myself, could not be so easily checked. He stated that he felt that even if other accusations are withdrawn that I had shown “bad judgment” in having Dad sign a power of attorney two days after his most serious stroke. It did not accuse me of any crime. I, on the contrary, am on firm ground when I stated in filings that my sister was, in fact, guilty of perjury.
The Court never directly or indirectly addressed the issue despite clear notice. It must be noted that my sister was represented by an attorney, whereas I am unable to afford one in this matter.
Immediately after the conservator’s appointment she seized bank accounts on which I was the beneficiary. Dad had originally wanted me to be a co-signer on the account, however, at the time I told him that I would be more comfortable as a beneficiary, as I felt at the time that if he were still alive that other arrangements could be made. In retrospect, of course, I regret that decision. The attorney also seized Dad’s social security check, which was originally deposited in an account that was set up to automatically pay many of his bills, including funeral plan, credit card, Kaiser, his car and house insurance, etc. While I have no means of checking, I suspect that the attorney has not paid any of these bills, especially since there have been collection calls made to the house by the credit card company.
Just prior to the hearing my sister’s attorneys contacted other family members offering a “settlement,” which, he stated if not agreed to would result in his application for a continuance, which he was sure would be granted. As a result I told my witnesses not to attend the hearing as I thought it would be continued. In fact, however, at the hearing, Ellen’s lawyer did not ask for a continuance and the hearing went on as scheduled. I pointed out to the judge that Ellen’s attorney had very unethically done a “rope a dope,” by stating that he would ask for a continuance and then not doing so. I also told the judge that I felt that Ellen’s lawyer’s acted irresponsibly and unethically in allowing false smears and accusations against me to be included in my sister’s petition for guardianship without checking their accuracy.
However, it probably wouldn’t have mattered to any extent if I had had all of witnesses available. At the hearing it was abundantly clear from the start that the Court had already made up its mind and would not acknowledge that it had been influenced by falsehoods that clearly amounted to perjury, since the application stated that the individual submitting it was under oath.
I was able to present some witnesses, however, although two were clearly hostile, my sister and the conservator. My brother testified that my sister had financially exploited Dad over the years and that I had had a very good relationship with Mom and Dad during the time I had stayed there. My daughter, also testified to that same effect, as did my Aunt and Uncle. I called my sister to the stand and she repeated the same falsehoods as in the guardianship application in addition to a number of new ones, which I was probably not alert enough to be able to counter since I wasn’t sure how I could cross examine myself. The most interesting testimony, however, came from the conservator. When I asked her if she, the guardian ad litem, any guardian appointed by the court and my sisters attorneys would be paid from the assets and/or the estate of Dad, she confirmed that this was, in fact, the case.
It does not take a great deal of imagination to see the potential for abuse with a system that forces attorneys to “live off the land,” seizing assets and property from individuals with only the flimsiest attempt at due process. While this is a shocking abuse of power and a scandal, I am certain it far from unique. From observation in the case of the estate of my second wife’s father, there may already be a bit of a “cottage industry,” that earns it’s living this way. After a conversation with the Guardian Ad Litem’s paralegal I would be willing to bet that is the case. The Guardian Ad Litem and his paralegal also informed me that the Judge would base his ruling primarily upon the Guardian Ad Litem’s recommendations, which, if correct means that a non-public servant has an extraordinary role in setting judicial policy, which is also an additional invitation to abuses of power.
In addition to cutting my questioning of witnesses, particularly my sister, short, the Judge telegraphed how he would rule by asking everyone to submit recommendations for a professional guardian, ignoring my objection to the appointment of either a permanent guardian or permanent conservator. Apparently, however, the Court could not issue permanent orders on the date of the hearing due to the fact that the “Court Visitor,” had not filed a report. The Judge informed everyone present that he would issue a ruling via a teleconference, since he could not do so at the hearing, which seems a strange adherence to one aspect of due process while so many others are ignored.
The instructions for attending the teleconference were not sent to me by the Court but rather in an email from my sister’s attorney, another questionable conflict in this case and quite likely an additional due process violation. Regardless, however, since I was fairly certain how the Judge would rule, given his demeanor and rulings throughout the proceeding and his refusal to investigate or credit any testimony that did not favor the positions of the lawyers in this case, especially my sister’s lawyers, I did not telephonically “attend” that hearing.
I was informed by letters from Ellen’s lawyer and the Court as to what the Judge had decided. As I knew he would, he appointed a permanent guardian and the permanent conservator, allegedly to “safeguard,” the assets of Dad. In fact, she is spending and disposing of them to finance her totally unnecessary appointment. The only surprise in the decision was that the Judge had ordered that the property not be sold without an additional Court Order.
Dad’s expressed wishes, as documented in the report of the Guardian Ad Litem, are to be able to die in his own home, the home he has owned for over 40 years. This was also Mom’s wish and, in fact, she did die in her bed, and told us before she died that she had led a happy life and had a happy marriage. The Guardian Ad Litem noted Dad’s wishes in their report. In fact, Dad is improving, at least physically and it is within the realm of possibility that he could one day return home, probably with some in-home nursing assistance. The improvement has not been rapid, but if his home is sold out from under him his spirits will likely be undermined and he might see no use in any physical improvement.
In a letter sent to me by the conservator, she states that she has decided to sell the home and informs me that she wants me to vacate the property or she will initiate eviction proceedings against me. Clearly both Dad and I are being deprived of property in a scandalous manner. Apparently while the conservator ought to be constrained from stating that she intends to sell the property without first obtaining an additional Court Order, she feels that she does not have to, apparently feeling that the Order will be granted automatically or simply ignoring it. Either is a Due Process violation. She also apparently feels that she can evict me at will, whether or not the Court has ordered that the property be sold. Remember, my sister and her attorney could not accuse me of anything worse than “bad judgment,” and even that is very arguable and has not been ruled on one way or the other by the Court, probably because it would not provide adequate justification for a deprivation of Dad’s and my rights, so better not to address the question at all.
Dad’s assets, beyond the house itself, are very limited, especially since the conservator has already seized his accounts and his social security check, so in order for the conservator to be able to pay herself as well as the other legal creditors, including my sister’s attorneys (who just filed a request to the court that they be paid from the proceeds of Dad’s assets and/or estate, or more likely from the sale of the house). At the risk of belaboring the obvious, the entire affair stinks of corruption throughout.
The almost inescapable conclusion is that the relationship between elder, estate and probate attorneys, court appointed attorneys serving as guardians or conservators, and the judges whose orders make all of these things possible, is cronyism at best and flat corruption at worst. The motive for all this is obvious. It is an attorneys dream to secure a court order directing that their legal fees not only be paid by third parties but that the court will not cap or even question those fees.
Corruption in the judicial branch is a much greater threat to freedom (to the extent that it still exists) than corruption in the legislative or executive branches because ever since Marbury vs. Madison when the judicial branch asserted the interpretation of the Constitution that gives it the absolute power to interpret and enforce the Constitution and all state and local laws theoretically emanating from it. Yet the culture of corruption that exists in the area of elder and probate law is similar to the culture of corruption seen in the legislative and branches, which is, of course, a good deal more visible in the legislative branch. Examples include close relationships with lobbyists, while ordinary constituents are passed off to low-level assistants, post-electoral employment of politicians, oftentimes in the very industries they were in charge of regulating, not to mention “perks” given to politicians by lobbyists, above and below the table, etc.
The same holds true in the judicial branch. I was once employed as a paralegal in a Seattle law firm that had as one of its “partners,” the former Governor of the State of Washington. Certainly cooperative judges could likely find post-judicial employment at law firms that specialize in elder law, estate and/or probate law. Naturally, the former governor only came into the office once a week and almost always did no apparent work but spent the day with old cronies, talking and going out for long lunches. It has become almost universally (and rather cynically) accepted in America that the lobbyists control Congress and to a less visible and provable extent the Presidency, judicial corruption smacks of much more than a broken system. It becomes undeniable tyranny.
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