In a recent meeting with an estate planning client and her daughter, the topic of elder abuse came up. They asked me about the Netflix movie I Care A Lot. They were very concerned about the potential victimization of dependent adults by professional guardians and cited the movie as a factual tale of abusive practices by these so-called professional guardians to take control of the dependent adult’s finances, sell their homes and lock them up in a care facility. Having been a practicing trust and estates attorney who has handled a fair share of conservatorships and represented individual family members, professional fiduciaries, and institutional fiduciaries in seeking the appointment of a Conservator, I was skeptical about their account.
From the little bit they told me, I was able to deduce that true story or not, it was certainly not based on California proceedings. First of all, we do not refer to proceedings for the management of the health or financial affairs of an adult as a guardianship. In California, guardianships are for minors and Conservatorships are for adults. I also explained that California courts do not appoint Conservators with no notice to the dependent adult or their family. California Conservatees have a great many rights.
If there are exigent (emergency) circumstances warranting the court’s appointment of a Temporary Conservator immediately, it is done with at least 5 days’ notice to the proposed Conservatee (dependent adult) and all of their relatives within a second degree (children and grandchildren or parents and siblings). Typically, the Petition for Appointment of Temporary Conservator is filed a week to ten days before the assigned court date, which could result in more than 5 days’ notice if a Notice of Hearing is promptly served on the relatives and the dependent adult. Although I was able to clearly explain how the process works in California, my client and her daughter were not convinced, so I promised to watch it and again attempted to allay their concerns by reminding them that they are extremely close, and it is unlikely anyone would be able to do anything to harm the mother without the daughter having advanced notice.
While I was fairly certain the movie that had them so concerned was either a fictional and sensationalized account of the conservatorship/guardianship process or wholly inapplicable to California, my curiosity was peaked. Interestingly, I had received a panicked Facebook message from a former client several months ago and the scenario she described was not far off my understanding of the plot of the movie, I Care A Lot. Of course, it involved a public guardian in another state, not a private fiduciary, but similarly my former client had discovered that someone had taken over her stepfather’s home and was demanding he be returned to the state (he was visiting her in another state). I later learned that it seemed there were estate planning documents, not a court proceeding, that allegedly empowered this public guardian to step in and do what she was doing. While the origin and validity of the documents were suspicious, as I suspected, it was not a case of no one being alerted to a court proceeding that stripped the dependent adult of their rights.
Having now watched I Care A Lot, and researched the origin, I see that it is a dramatization and oddly even classified as a comedy. I am not licensed in other states, so I do not know if it is possible that this type of egregious miscarriage of justice and depravation of the rights of dependent adults could happen anywhere else, but it’s highly unlikely to happen in any of the courts I am familiar with in Southern California. In this movie, a “professional guardian” would target victims and go into court with no advanced notice to anyone. She would convince a Judge who was either naïve or corrupt himself to appoint her guardian over these individuals whom she characterized as “poor and neglected.” If met with resistance, she alone, without an attorney would cross examine the challenger, testify herself, and offer as factual evidence her own beliefs and experiences. It depicted an utterly unrealistic court proceeding with a Judge who had no concern for the normal rules of civil procedure, due process or evidence.
While I suppose someone, who had a motive to try to convince the court that an individual had absolutely no family may be able to secure an appointment as a Temporary Conservator, we have many safeguards in place to hopefully weed out those individuals before the hearing on a permanent proceeding or in excess of one emergency appointment. Likewise, it requires a special court order to remove someone from their home. I cannot imagine any fact pattern where it would be allowed to happen at a proceeding with little or no notice and without the proposed Conservatee having the benefit of their own counsel.
Having handled many conservatorships in Orange and Los Angeles Counties over the past 15 years, I can only recall one occasion where we ever even attempted to get a Temporary Conservator appointed over an individual with less than 5 days’ notice. In that scenario, the lady we were trying to protect was being preyed upon by a caregiver who had convinced this lady to give up thousands of dollars and change her estate plan. There was no way we could follow the normal rules of notice without tipping off the predatory caregiver of our plans. Thankfully, we had an excellent Judge who scheduled special hearings and made orders to protect the proposed Conservatee while we were waiting for the hearings. In the end, it worked out, but in that case the limited notice conservatorship was to protect the dependent adult from a predatory caregiver, which in my experience is much more common than a predatory professional fiduciary.
Regardless, of the unlikelihood of the fictionalized plot in I Care A Lot becoming a reality, the message that we should be concerned about elder abuse against dependent adults should not be lost. I am sure we have all experienced the calls and text messages asking for a one-time payment to remedy a Social Security, IRS, Amazon or some other problem. Fortunately, most of us have the cognitive skills to avoid these scams. However, most dependent adults do not.
Additionally, like my limited notice Conservatee, they are often victimized by caregivers or even family members who are tasked with providing care, but instead are more concerned about taking advantage. If you have had to hire caregivers or rely on others to care for your dependent loved one likely means you do not have time to monitor the caregiver 24/7. However, there are things you can do that take very little time. Fortunately, we live in a modern era where bank account and credit alerts can let you know of suspicious activity on your loved one’s accounts in real time. Background checks do not require a private investigator and a great deal of expense. They can be done any time from your phone and for very little money.
In hindsight, there are often many signs of elder abuse. Educate yourself to them and be vigilant in protecting your dependent loved one from predators. A complete estate plan and some vigilance by you may protect your dependent loved one from predators. If all else fails, the Conservatorship process is an option that can allow you to protect your dependent loved one.
Attorney Dana M. Cannon has been practicing as a trust and estates attorney for nearly 15 years and is proud to serve Long Beach, Seal Beach, and the surrounding communities for all your Estate Planning, Conservatorship, Trust & Estate Administration and Litigation needs.
If you believe your loved one is or was a victim of Elder Abuse, contact Dana M. Cannon and Cannon Legal Firm for a free consultation or additional public and/or private resources for reporting abuse.
We proudly serve Seal Beach, Long Beach and the surrounding communities for all your Estate Planning, Trust & Estate Litigation, Trust Administration and Probate needs. We are happy to provide a free consultation via telephone, virtual visit or socially distanced at our offices at 3020 Old Ranch Parkway, Suite 300, Seal Beach, California or at your home or office.