California Man Almost Loses His Stepmother in Guardianship Dispute

[00:00:00] Bob: This week on The Perfect Scam.

[00:00:02] It's painful, and it's heartbreaking. One lesson I learned is that no matter how awkward it seems to be intervening in your loved one's life, and how much they may resist it because of their own independence, you cannot get in there too soon.

[00:00:18] Bob: Welcome back to The Perfect Scam. I'm your host, Bob Sullivan. And today we're going to talk about a really important topic, a really sensitive topic about what happens when someone gets very sick and they can no longer make decisions for themselves about their health or their money. Often a court-appointed guardian is named to make these critical decisions, and sometimes these relationships go sideways fast. There can be a tug of war between family members and institutions over who gets to make those decisions with the vulnerable person caught in the middle. And there's been some horrible abuses, scams that involve bad actors taking control of people's lives just for the money, raiding their bank accounts with fake services, keeping loved ones away from family members during their last few precious years of life. Some of the scams are so dramatic there have been several exposes in newspapers across the country, even a new show on a popular streaming service devoted to this tragic problem. We'll get to this heart wrenching topic in a moment, but first, I want to bring in Fraud Expert, Frank Abagnale. Welcome back, Frank.

[00:01:22] Frank Abagnale: Thanks, Bob.

[00:01:23] Bob: AARP does a lot of advocacy in this area, but, but Frank, what can families do to help uh their relatives when they're in a situation where they may not be able to make all the best financial decisions for themselves? What are, what are some of the ideas that people should, uh, should keep in mind?

[00:01:39] Frank Abagnale: Well I think it's very important that we have to make sure that we are taking care of our loved ones, even if it's our neighbor. If I have a neighbor that's elderly, I need to make sure if their family’s not looking out for her, or she doesn't have family, that she knows she has someone she can come and talk to and confide in.

[00:01:56] Bob: I think neighbors, it's okay to be a nosy neighbor in a situation like this. It's okay to be a, an involved child. You know, children don’t ask their parents enough about their finances, just to understand the situation that they're in. But these conversations are so emotional, right? I mean I even just drive the conversation I'll have with my dad sometime about not driving anymore. Uh, you know I, sometime I just wake up thinking about how hard that's going to be, and so when it comes to taking away uh personal finance, or power of attorney, or all those things, these are really hard conversations, right?

[00:02:27] Frank Abagnale: Absolutely, and it's something you don't want to do, but you, you want them to then say, look, just make sure that before you do something, you spend any money or you give anybody any information, uh just call me and discuss it with me, and just say, hey, I had this phone call. This person said I should be doing this. And, and if you don't want to talk to me about it, then talk to someone you know or that you trust, a friend, a neighbor, uh that you can speak to about it, so and get their opinion so that they can tell you, you know, I don't think that's legitimate. I think you should have that checked out before you send any money to those people.

[00:03:05] Bob: And now here's our story. The changing of the guard. It's one of the most heartbreaking realities of life; people get to a point when they can't make decisions for themselves about their money, about their own health, and about where they live. Legal authority is granted to someone else. A court-appointed guardian is named to make these decisions. About 1.3 million people in the US are currently guardianship: 85% of them over 65. Guardianship is a process that involves families, lawyers, guardians, healthcare providers, and state courts. It's an awesome responsibility with the goal of looking after the person's best interests. It's not always easy for a judge to decide what's in the best interest of a vulnerable adult or who is best to make decisions for them. More often than not, a judge will appoint a family member, however, sometimes a judge may appoint a professional guardian, especially if there is family conflict or no family or friends are available or willing to serve as the guardian.

            Just a word about terminology. It can vary from state to state. In some states, a guardian is appointed to care for the health and daily needs of a person, and a conservator is appointed to manage someone's finances. Some states use one term or the other, but for this podcast, we're going to stick with guardian. As you can imagine, these cases can be complicated and extremely emotional, and they have sometimes served as an unfortunate way for bad actors to take advantage of vulnerable adults.

[00:04:39] (news clip) "Now to a news alert out of Marion County. A former Florida guardian at the center of a statewide scandal faces aggravated abuse and elderly neglect charges. Investigators say Rebecca Fierle signed a "Do No Resuscitate" order for a 75-year-old. His name's Stephen Stryker, against his own wishes. Stryker died..."

            "Susan and William Harris were caught in Oklahoma after fleeing New Mexico and failing to show up for sentencing in what's known as the Ayudando Guardian's case. The two stole 11 million dollars from those under the guardianship's care. Susan Harris..."

            "Four people are facing more than 250 felony charges for crimes against the elderly. Well they're taking plea deals. And their conviction's bringing to an end what Chief Investigator Darcy Spears started nearly four years ago. The most significant guardianship exploitation case in Nevada..."

            "Lawyers with the District Attorney's Office spelled out what they could prove if this case did go to trial, including multiple billing scams, charging for unneeded services, and..."

            "Paul Donesdorf ran the nonprofit trust for 10 years. In February, he pleaded guilty to stealing nearly 7 million dollars from DSLM accounts. He was sentenced to..."

[00:05:53] Bob: The Albuquerque Journal newspaper did an investigative series on messy guardianship cases in New Mexico during the past several years, including many stories on the Ayudando Guardian's case. Colleen Heild is one of the reporters who worked on those stories.

[00:06:07] Colleen Heild: Well I am an investigative reporter at the Albuquerque Journal. We now have two, we used to have three. Um, I worked, um, at the Journal in New Mexico, it'll be 35 years next week.

[00:06:20] Bob: It was the hardest kind of story to report. Privacy rules prevented most parties from talking, so on the record comments were almost impossible to get.

[00:06:29] Colleen Heild: One of my first cases involved a female bus driver, who was an in-law, um, of a woman that had a little house and was doing fine until an out of state sister decided that she wanted her mom's house. So she was able to go to court and get a petition and the mother was removed to a home. And the house was sold, and the daughter-in-law was just appalled. I never met the mother-in-law, but this woman was really brave, because she took on the, the corporate guardian, and that guardian was not happy with me either. And I think that there's so much emotion wrapped up in, into these stories, because people feel very powerless to help their loved ones. It turns out that woman ended up penniless. Now whether she could have stayed in the house a little bit longer, whether her quality of life would have been better if her family had had more of a voice in what was happening to her, I don't know.

[00:07:48] Bob: Back in 2017, in part because of Heild's stories, the State of New Mexico held hearings and let family members have their say. The hearings are hard to listen to. One after one, family members marched to a microphone and alleged that loved ones had been whisked away, taken from family, and essentially trapped in a care facility just for profit.

[00:08:11] Watching a loved one die in unfamiliar surroundings, overseen by a court-appointed stranger, i.e., a temporary guardian, is unforgiveable. I have many sleepless nights over those events and will until I die.

[00:08:35] This all takes place before there's any other input from the family, any uh con--, uh, conflicting statements that might help with that determination, so this is all behind closed doors at this point. Everything, but once they're in the system, it's over. You're in the system and you can't get out.

[00:08:56] I have watched my father's lifeblood drain away from her support at the unbelievable fees of a court-appointed guardian and their attorneys.

[00:09:12] Bob: May guardians act honorably and help those who need extra care live with dignity. Abusive cases stick out and expose gaps in the guardianship process. But even when parties on all sides think they're doing right by those who need help, competing interests and honest differences of opinion can create really painful situations. The quickest solution isn't always the best solution says journalist Heild.

[00:09:35] Colleen Heild: It's almost too easy to go into court to say, okay, this is what should be the last resort, and many times it's the first resort which is you've got rotten food in your refrigerator, and you're overpaying your, your bills. So here you go, we're going to put you under a guardianship or a conservatorship when maybe all they need is a power of attorney or something less.

[00:10:02] Bob: One tip about a painful situation that captured Heild's interest immediately was the tale of Kise Davis and her stepson, Larry Davis. Larry's 14-month struggle to bring his then 85-year-old stepmother, Kise, home after she was assigned a guardian by a New Mexico judge and placed in a care facility is a powerful story of red tape, heartbreak, but ultimately the triumph of love. Larry and his wife, Marcia live near wine country in Sonoma, California. This sometimes teacher, who holds a PhD in Cultural Philosophy, practically glows when he talks about his stepmother.

[00:10:39] Larry Davis: In 1950--, about 5, I think it was, she met my father. He was an interpreter, Japanese interpreter trained by the army who was there writing for the Stars & Stripes in Japan. He met her after divorcing my mother the previous year, and they got along just great, so he and she got together and then I got, in 1956, a little message saying, "Hey, I've remarried uh to Kise, and I'd like you to meet her, so I'm arranging for you to come to Japan and uh meet her and spend time with us."

[00:11:19] Bob: Larry even credits Kise with saving his relationship with his father.

[00:11:23] Larry Davis: They were very happy, and I was thrilled to be there and with my father, who I hadn't had a lot of contact with, and he and I didn't exactly get along, but over the years, she always served me by being a go-between, uh, which she's very good at, between he and I, and kept our relationship going, but when I met her, she didn't speak English, she spoke only Japanese. My father spoke Japanese. She was learning English, and so he would translate with her and we had a, a great time.

[00:11:55] Bob: The family soon moved back to the US and settled in Los Angeles for a while, then Dad and Kise moved to New Mexico, to Los Cruces, not too far from El Paso, Texas, so he could be near White Sands Military Base where he had spent time when he was younger. Larry's dad loved the desert and was happy to get away from California traffic. Kise loved it too, so when dad passed in 1993, Kise decided to stay on in New Mexico.

[00:12:21] Larry Davis: In that period of time we visited her, and she went on vacations with us occasionally, and, and we were in touch with the holidays, and so it's been about 40, 50 years, maybe longer that, you know, it's been since, what's 56 to now that she's been a part of my family.

[00:12:40] Bob: As time passed, stepson and stepmother occasionally discussed a move to California so Kise could be close by. A diagnosis of memory issues, questionable decision-making, and the addition of new trusted friends added some urgency to that conversation, but Larry says Kise's doctors gave her the go ahead to keep living alone. She still sold flowers at the local farmer's market. Still had her life in Los Cruces, so they put the idea on hold. Still, Larry says he stayed in touch with Kise's neighbors, and the local handyman who helped Kise around the house and visited New Mexico often. Then, right before a planned post-holiday season visit, at the end of 2016, their nightmare began.

[00:13:23] Larry Davis: I got a call from Donny, the neighbor, saying that she'd been picked up by Elder Advocate Services and taken to Hacienda, which is a assisted living for memory care. Blank. No, no one notified me or called me or told me or anything, and I was just flabbergasted.

[00:13:44] Bob: Based on an emergency petition filed by her handyman claiming she was at risk, then 85-year-old Kise Davis had been deemed incapacitated in court and placed in the care of a corporate guardian. As Heild wrote in her story, quote, "There was no court hearing or prior notice to the family including her closest relative, her stepson, Larry." At the time, that was legal under New Mexico law. Larry initially thought he might be able to fix what was clearly a misunderstanding with a few phone calls.

[00:14:13] Larry Davis: So I'm calling people over at advocate services and they are not reachable, and when they are reachable, I said, "Hey, what's going on? Why didn't you call me? Is, you know, Kise in serious condition that I don't know about, or what's going on?" And they wouldn't talk to me, and then they did talk to me and, and said, "Everything's fine. Stay out of this. And if you want to talk to us, you have to get a lawyer. In fact, you know, we have authority and you're not to contact her or us or the facility."

[00:14:43] Bob: And when he finally got in touch with her, Larry says Kise told him, "They put me in an insane asylum. Please come and get me out of here."

[00:14:51] Larry Davis: We were in a naive state of assuming there'd just been some horrible mistake made. Or she had some kind of a crises. And when we went there, they would see, you know, we're family, and we want to take care of her, and so they would just give her over to us, and we'd bring her to California. That was our expectation when we went there. We said this is all screwed up.

[00:15:14] Bob: They got to New Mexico as soon as possible. Went to see Kise, and were troubled by what they saw. Kise was housed in a unit for people suffering from far more serious cognitive decline.

[00:15:25] Larry Davis: The people there were very, very far along in uh, dementia care in terms of some of them had been, were being fed at their meals. Several of them were incontinent, and had problems, and that was a clean-up problem. Uh, it was, it was a nightmare.

[00:15:45] Bob: The situation was already complicated, because Larry wasn't Kise's blood relative, and now a court had given legal right to make decisions about Kise's life to a private company. He says he was told he didn't even have the right to talk with Kise.

[00:15:59] Larry Davis: Kise was fried. I mean she was totally, what happened? And the thing is that it wasn't that she was not able to talk to us and tell us what was going on, but we weren't allowed to talk to her, and when we tried to talk to her about what, what had happened and so forth, they made a big stink about how we weren't supposed to be there, and we weren't supposed to talk to her and so forth.

[00:16:21] Bob: Instead of a quick fix for a mistake, Larry soon realized that the guardian was going to fight to keep Kise in Los Cruces. So he had a court fight on his hands. Larry says finding a local lawyer who was truly on their side was a challenge, and it was hard to get straight answers from the company when so much of the legal procedures were sealed behind a cloak of privacy.

[00:16:43] Larry Davis: Now remember, when you do a thing like that, their lawyer is charging Kise at her lawyer's rates to make those calls to our lawyer. Our lawyer is charging us to talk to her, and then talk, talk to us. And so it's cha-ching, cha-ching, cha-ching. And everybody's just fine with it because it's all being paid for out of court order. And they get paid to defend their right to take control of her.

[00:17:16] Bob: Sandy Meyer, owner of the guardianship firm, told the Albuquerque Journal that her firm was just trying to act in Kise's best interests, that the guardianship fees were minimal, and that she was insulted by the suggestion that profits were a motivating factor. Meanwhile, as Kise's story was unfolding in their personal lives, the story of abuse at Ayudando Guardians and other troubles with New Mexico's guardianship system were unfolding in New Mexico's newspapers. Larry and Marcia had a sense that they were in an uphill battle, maybe the fight of a lifetime.

[00:17:51] Larry Davis: So, you know, you have to make a choice. You're either in or you're not. You're not going to go halfway into something like this because they're playing for keeps.

[00:18:00] Bob: Then there were phone calls and court hearings and ugly accusations.

[00:18:04] Larry Davis: Oh, they said that we were, that weren't legitimate family, that we were after her money, I wasn't responsible. I had been the one that had uh, hadn't taken care of her, and that's why she had to go and change her power of attorney because I was negligent. And uh, you know, and a whole bunch of other stuff that was just ridiculous.

[00:18:27] Bob: In March, just a few months after Kise was originally assigned to advocate services, a judge ruled that Kise would be better served with a move to an assisted care facility in California, closer to Larry, and the move should happen within 120 days. But more red tape followed. Kise's house went up for sale. Advocate services still controlled her finances, and delays pushed the dispute into the following year. Heild, the reporter, has seen delays like this before.

[00:18:55] Colleen Heild: In many New Mexico towns, judges are juggling guardianship cases with murder cases. They uh, don't have the time to ensure proper oversight, and I think some guardians and conservators realized that, and have taken advantage of the system.

[00:19:18] Bob: Advocate Services owner Sandy Meyer told AARP The Magazine, that the firm was trying to do the right thing all along. Quote, "We performed our duties in the best interest of Kise Davis and her reported wishes to us. Unfortunately, Mr. Larry Davis felt like we had gone behind his back. We always make every attempt to work with family members in a collaborative effort to meet needs. This case became contentious not due to our actions." Finally, in February of 2018, 14 months after the saga began, the judge ruled that Kise should be transferred immediately. First, she moved in with Larry and Marcia, then moved into a memory care facility nearby. Larry remembers the day he was able to tell Kise that she was coming home.

[00:20:04] Larry Davis: Yes, yes, that's a happy day. She's, she's just delighted. I mean she, uh she was happy to know that she was going to get out, but then when she got here, it was just bliss because, and then the other thing that was a bliss day is when we got the confirmation that the transfer of the conservatorship was in California, and we were now operating in our state, according to our laws. We've had so many good times since she's been out here, you know, going to the ocean and going to the zoo, and she says this was heaven compared to where she was through. I think that she was very threatened.

[00:20:43] Bob: The victory came with steep costs, however. Larry spent more than $50,000 on legal bills and other expenses. The charges to Kise's estate during her ordeal are expected to top $140,000. Still, Heild is happy she got to see a happy ending for once.

[00:21:02] Colleen Heild: What we don't often see is the good things that can happen after a family like Larry Davis has, has won the fight. And I think that was, meeting with them after uh, Kise, they were able to take her home, was so emotional, and I hope they're all doing well, and you know never know, but uh, the fact that they were up against this uh, system, weren't even living in this state, and finally won, was, I mean right now I'm getting tears in my eyes. It, it's, it's great to see that uh, that things can work out for the best.

[00:21:52] Bob: Things can work out for the best. Several organizations, including AARP are hard at work trying to make sure that happens more often. A big part of that is updating outdated guardianship laws by protecting the rights of individuals under guardianship, addressing abuse by clamping down on bad actors, improving court oversight, and promoting less restrictive alternatives. After advocacy from AARP New Mexico, the state soon passed a new set of rules for guardianship aimed at making the process more transparent for everyone involved. And New Mexico is hardly alone. Efforts at reform have been underway for some times.

[00:22:30] In 2019, 33 states enacted 58 new laws, just on adult guardianship, and this was an increase from 2018 where 22 states enacted 39 laws.

[00:22:43] Bob: That's Diana Noel, who is AARP's Senior Legislative Representative. She's helped push and even write guardianship reform laws around the country. And during the pandemic, legislative activity has picked up even more.

[00:22:57] Diana Noel: I am lucky enough to work with all 53 of our state offices on their advocacy efforts related to adult guardianship, elder abuse prevention, and other matters related to probate and estate planning. There have been some instances of abuse and mismanagement of funds. There is a lack of court resources, conflicts of interest, or a combination of these.

[00:23:20] Bob: She stresses that it's a really difficult, often emotional situation. There are many problems with the current system. Among the biggest, there aren't enough people to help.

[00:23:30] Diana Noel: The need is high, but the, the availability of, of people who are able to serve as guardians is, is low in most states, so um, many states are looking into uh either establishing or, or putting funding behind public guardianship. And stories like Larry's, um, are useful, because it's allowing court policymakers and even other families to see what's going on out there, and how can problems be fixed? What works in those instances that can be replicated in other places? That's the one thing that states are doing and that's, it actually has a name. It's uh, called Wings. So it's a court/community partnership that's in about 27 states, and it, it stands for Working Interdisciplinary Networks of Guardianship Stakeholders. And essentially, what they do is just that. You get the stakeholders together and it includes judges, policymakers, families, and advocates like AARP together, and really discuss what's working in the state, where there are duplication of services, what can be done better, and what needs to stop?

[00:24:44] Bob: Families can help by talking early and often with each other, making sure wishes and desires are out in the open and helping each other make plans for whatever might happen, because without clear plans, people find themselves vulnerable to a judge deciding who can make decisions on their behalf if they're unable to speak or care for themselves.

[00:25:05] Diana Noel: I think that elder abuse in general, whether it's by a guardian or someone else is one of the most unreported crimes, but there's definitely a large effort to really combat that abuse across the country. I really want people to know that we, AARP, we are fighting to protect vulnerable seniors who rely on legal guardians and others to help them make vital decisions. We're moving away from using terms like ward or incompetent or incapacitated person. We're really talking about your mom, your dad, your brother, your sister, your friend, your loved one, and just remember, everyone, whether under guardianship or not, all have the right to be cared for respectfully and live free from crime, abuse, and neglect.

[00:26:06] Bob: Larry has some hard won wisdom to offer after his ordeal with his stepmom, Kise.

[00:26:11] Larry Davis: Yeah, there's a, there's one lesson I learned is that no matter how awkward it seems to be intervening in your loved one's life, and how much they may resist it because of their own independence, you cannot get in there too soon.

[00:26:29] Bob: Here are some specific things you can do to make things better. If there is an immediately concern for someone's health or safety, you should call 9-1-1. If you suspect abuse, you see some funny things going on, or you see your loved one has a suspicious new friend who's asking a lot about money, contact state adult protective services. A good resource is AARP's Prepare to Care Guide, available at aarp.org/caregiving. It can help individuals and families navigate tough conversations about wishes, values, health, and financial power of attorney, and estate planning. And here are four things you should do for vulnerable family members before a crisis arrives. One, make peace with your loved ones. Judges often appoint professional guardians when families are feuding, so try to make up before problems escalate. Whatever the cost, it will likely be cheaper than a professional guardian. Two, create one durable power of attorney for finances, and another for medical care. One person can fill both roles, and you can also name your power of attorney designee as your guardian of choice. Three, explain to your designee how to do the job. There's good sources at consumerfinance.gov. And four, trust but verify. In your power of attorney document, create checks and balances by requiring your appointee to provide a periodic accounting to another trusted friend or relative. Now, let me bring in Fraud Expert, Frank Abagnale again.

[00:28:12] Bob: So I'm a big fan of a happy ending. It's just so heartwarming to hear that Kise is, is now with Larry and they are having, you know, life in California and, and it's, she feels like she's almost in heaven now compared to the situation that she was in. So Frank, what are some tips that families can use just to make sure that things are going as well as they can in this phase of life?

[00:28:33] Frank Abagnale: Well please make sure that you are checking on your parents all the time, that you're having conversations with them, asking them what they're doing, if anything new has come up, as um, you know, if, if nothing getting real personal by simply just saying, you know as by the way, Dad, are you aware that these scams are going on around, are you aware of these robocalls that are going on, or text messages on your phone. Letting them know that you're there and that you're a phone call away, so if they have a question, they can call you. That's probably the best thing you can do to make sure that you’re protecting your parents.

[00:29:08] Bob: That's really nice, Frank. Frank, thanks very much.

[00:29:10] Frank Abagnale: Thanks so much.

[00:29:12] Bob: If you or someone you know has been the victim of a fraud or scam, call AARP's free Fraud Watch Network Helpline at 877-908-3360. Their trained fraud specialists can help you know what to do next, and how to avoid scams in the future. Thank you to our team of scambusters; Executive Producer, Julie Getz; Producer, Brook Ellis; Associate Producer and Researcher, Megan DeMagnus; our Audio Engineer, Julio Gonzalez; and of course, Fraud Expert, Frank Abagnale. Be sure to find us on Apple Podcasts, Spotify, or wherever you listen to podcasts. For AARP's The Perfect Scam, I'm Bob Sullivan.

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