It is a nightmare that many families have faced over the last few years, but one that has gone on mostly without public notice. An elderly parent or loved one is suddenly stripped of his or her rights and forced into a court guardianship program that opens them up to financial exploitation, sometimes siphoning their life savings and estates until there is nothing left. Families desperate to find answers and get justice are stuck in years of court battles to rectify the situation.
Guardianship is the court removal of all rights, decision-making ability and estate control from an elderly party and his or her family, and transferring them over to a third party. The elderly party is alleged to be incapacitated and is made a ward of the court. Guardians are then given complete control to make all decisions for their “ward.”
In these situations, the guardian can be authorized by the court to take over 100 percent of the financial assets of an elderly person, including trust assets. They are able to change all financial-instrument ownership into their name, and they maintain control. They can do all of this while limiting who the elderly person can see or speak to, denying their wishes, and all the while charging their estate for everything they do while acting as a guardian. This can range from charging $150 an hour to open mail or $1,000 an hour to arrange a family visit.
Richard Black—director of Americans Against Probate Guardianship—knows all about this; his father-in-law was the victim of a guardianship situation that cost his family nearly $1 million in damages in just two years. The guardian in that situation was a longtime family friend who took advantage of Black’s father-in-law, Del Mencarelli, after he was diagnosed with Alzheimer’s.
Helen Natko, the guardian in question, was a gambler with extensive debt who defrauded Mencarelli out of $220,000 over the course of nine months. She was convicted of felony theft and exploitation of a vulnerable person on April 11, 2017. In July 2017 she was sentenced to five years’ probation and no gambling.
Black’s family spent $400,000 fighting both Natko and the courts to regain control of Mencarelli and his estate. During their court battle, Mencarelli died in Natko’s home with a gangrened foot that had been neglected and left untreated by his so-called guardian.
In addition to his own case, Black has investigated 400 other cases with similar circumstances.
Black told The Root that cases like his father-in-law’s are more the rule than the exception.
Black analyzed court records from 2013 to 2017 and found that the average annual cost of fraudulent guardianships is $250,000 per family. Families spend an average of $500,000 fighting these guardianships.
Meanwhile, the appointing courts provide immunity and protection to the guardians, and any complaints to law enforcement are referred back to the appointing courts.
Black wanted a way to stop this and provide a means for families to fight back against fraudulent guardianships, and with the help of Sen. Chuck Grassley (R-Iowa), he introduced Senate Bill 178, the Elder Abuse Protection and Prosecution Act, on Jan. 20, 2017.
The bill establishes requirements for the Department of Justice to investigate and prosecute charges of elder-abuse crimes and the enforcement of elder-abuse laws.
The bill passed the full Senate on Aug. 1 and passed the House on Oct. 3.
It now heads to the desk of Donald Trump to be signed into law.
Black said that he hopes getting this bill passed will lead to the kind of national attention this horrible practice deserves.
Too many families have fallen victim to guardianship fraud. Hopefully, with the passage of this law, no more will have to suffer emotionally or financially.