Elder Guardianships – A Shameful American “Racket”

Note: This is the first of three columns on this topic which were originally published in Feb-April  2016

She is a well-spoken, elegant and wealthy 94-year-old widow. And as Betty Winstanley told me from her room at the Masonic Village Retirement facility in Elizabethtown, PA, “I feel like I am in prison. My life is a living hell.”

Welcome to America’s twisted world of court appointed guardianships for the elderly.

Quick backstory: Betty and her husband, Robert, were married for 72 years. They had three children, Richard, David and Betsy. For nearly 7 years the couple occupied a “lovely” independent living apartment at Masonic Village retirement home in Elizabethtown, PA.

Betty Winstanley Doesn’t Sound Incompetent

In early 2014, Betty, who uses a rolling walker to get around, says she felt faint and seeing no staff nearby lowered herself to the ground.

“They said I fell,” she told me. “But that is a bad, bad word around here. Once you fall they decide you aren’t capable of taking care of yourself anymore.”

Betty was sent to the medical section of the compound for rehabilitation after a small fracture was found.

Robert, a doctor of ophthalmology with a keen interest in aerospace medicine, took ill shortly after and was also transferred to the medical unit. Betty stayed with him but longed to return to their apartment.

“They wouldn’t let me,” Betty said. Labeled as a resident who could no longer live independently Betty was transferred to a smaller room where nurses could keep better track of her. Sadly, on June 26, 2014, Robert died of heart failure.

Within three weeks, the eldest Winstanley son, Richard, was in court claiming his mother needed a guardian to make decisions for her. Betty believes Richard was angry because she had recently moved to transfer her power of attorney away from him to her other two children.

At this most important initial hearing Betty was without her hearing aids as the home had collected them “for cleaning” and had not returned them. Still deep in grief, Betty was unable to understand the proceeding and her court appointed lawyer never told her she had the right to speak before the judge made a decision.

On July 17, 2014, Common Pleas Judge Jay J. Hoberg of Lancaster County, PA heard testimony from one doctor and one nurse from Masonic Village and declared Betty was, “a totally incapacitated person.” This, despite the fact that two independent neuro-psychologists who had tested Betty declared she was of sound mind. Depressed? Understandably, yes. Affected by dementia or Alzheimer’s? No.

Those conclusions didn’t seem to matter. Betty was appointed a guardian (two, in fact) and immediately felt cut off from the rest of the world. Her family visits were curbed, her check book taken and she was restricted from leaving the Masonic Village campus. The guardian, Patricia Maisano, did not even allow an outside Christmas visit.

“They make me feel like a piece of protoplasm on a deserted island,” Betty told me. “I just want to move to an assisted living home in Annapolis, Maryland so I can be near David and Betsy. I have no family around here except Richard who rarely comes to visit.”

Interestingly, Betty has not been allowed to pay for her own lawyer from her $1.9 million estate. Her son David, a flight attendant, told the court he has spent his life’s savings trying to help his mother escape the grasp of a legal system that is supposed to help the elderly.

Groups fighting to change contested guardianship laws call the system, “A nationwide racket,” wherein an all-powerful judge appoints a guardian who in turn can hire a local attorney, any number of merchants and service people and, as in Betty’s case, the elder has no idea how their money is being spent. Betty only knows that her monthly apartment cost was about $3,300 and now she’s charged $8500 for her smaller, skilled nursing care room.

In the words of Dr. Sam Sugar, an elder advocate in Florida, “The mantra of the guardianship program is: litigate, medicate and take the estate.”

Dr. Sam Sugar Fights For Elder Rights in Florida

Betty’s case and while there is much more to her story — including brothers who no longer speak and the prolonged focus in court on son David who, reportedly, upset Betty in the past by yelling in frustration at his mother’s situation – there is really only one important takeaway.

Betty wants to leave the place where her husband died and live closer to her family in Maryland. The reason she can’t move? Pennsylvania won’t let her go, despite a state law that says a guardian must take into account what the ward wants. Judge Hoberg, the ultimate arbiter, has allowed Betty’s limbo to drag on for 18 months.

“I’ve watched my client decline during this prolonged fight…. she is like a flower who’s dying on the vine.” There is an appeal pending but that will take months to be heard.

This is what happens in America when the kids can’t – or won’t – agree on what’s best for Mom. Shameful, on many levels.

Note: photos courtesy of Winstanley family and Dr. Sugar.

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