Photos by Michael Barajas
How judges, probate attorneys, and guardianship organizations abuse the vulnerable by Michael Barajas
Joy Powers woke from a horrific car wreck to find she’d been appointed a guardian and stripped of her rights. Months later, court-appointed fees drained her life savings
Mary Dahlman’s problem is all about money.
A lot of people want at the estimated $20 million trust Dahlman’s deceased mother left to her and her brother. Over the past year, a flock of local probate attorneys have already drained nearly half a million dollars in fees out of that trust.
And they want more.
“I’m not dead yet,” Dahlman, 67, said wryly in an interview with the Current this summer. “Obviously they can have it when I’m gone.”
It’s all that money that first brought Dahlman into court with Bexar County Probate Court 2 Judge Tom Rickhoff three years ago. Dahlman has a knack for explaining dizzying financial details with crystal clarity: trust managers at Falcon Bank, she claims, had begun to withhold depletion taxes from the trust, calling it principle then making Dahlman and her brother pay income tax on cash they never got. Lawyers with Falcon Bank denied they’d made a mistake, and the lawsuit was set to play out in Rickhoff’s court.
That is until Rickhoff and attorneys in his court began tossing around the loaded word “incapacitated.”
By summer 2011, Dahlman insisted, Rickhoff got fed up with the Falcon Bank dispute and, as she recalled it, “Judge Rickhoff comes out and says he’s so tired of seeing me in his courtroom. He says, ‘I’m gonna see if she needs a guardian.'”
Stripping away someone’s rights in court can be messy, expensive business, especially when family squabbles or large, contested estates exacerbate things.
In Texas it’s estimated some 30,000 to 50,000 disabled and elderly persons have been declared incapacitated and ordered into guardianships, losing the right to decide where they live or how they spend their money. Nationally the number of those declared incapacitated is rising fast as baby boomers age. Reports of mistreatment, neglect, and problems involving both relatives and non-family members appointed by courts to protect them have also risen, according to reports from the federal Government Accountability Office, which in 2010 and 2011 issued warnings of increasing numbers of elderly and disabled people neglected and ripped-off under guardianships.
With guardianship hanging over her head, Dahlman’s Falcon Bank lawsuit was put on hold, and it’s been a fiasco ever since, she says. William Bailey, a court-appointed attorney and a regular in Rickhoff’s court, investigated years of Dahlman’s financial statements, scouring through every check she’d written, each transaction, every gift to friends and family. Bailey’s conclusion: People for years had been financially exploiting Dahlman, making her no longer mentally fit to watch over her own sizeable estate. He urged Rickhoff to appoint a guardian to freeze, take over, and manage Dahlman’s finances for her, meanwhile Dahlman’s three estranged daughters, perhaps out of fear that their mother was burning through their inheritance, filed motions to have the court appoint a guardian.
Three forensic psychiatrists would eventually disagree with Bailey, declaring that Dahlman is mentally fit and capable of spending her money as she pleases — though she might be better served by keeping a closer eye on her checkbook balance, one psychiatrist wrote. Still, despite three expert opinions to the contrary, a court-appointed investigator and lawyers for Dahlman’s three daughters continued to push for guardianship, and over the course of the summer Dahlman had to continue to fight for her financial freedom in court while also fighting nearly $100,000 in fees attorneys tried to draw from her estate.
“They’re going to bankrupt Mary for the foreseeable future just so they can get paid in full,” Dahlman’s attorney Phil Ross said as he exited a court hearing in July.
As guardianships rise, advocates in Texas and elsewhere claim cabals of judges, close-knit networks of probate attorneys, and guardianship organizations are free to pilfer the pocketbooks of the elderly and vulnerable, wrongly seizing possessions, kicking folks into nursing homes and hospices before their time, splitting up estates and separating parents from their disabled children.
“After seeing many of these cases play out, I’ve boiled it down to this: it’s the deception of protection,” said Debby Valdez, a vocal San Antonio-based activist behind the advocacy group Guardianship Reform Advocates for the Disabled and Elderly (GRADE), whose members regularly testify at committee hearings at the Texas Legislature. GRADE gets regular calls and emails from families across the state, Valdez says, the common element being family members severed from aging parents or disabled children without knowledge, or those frightened and confused over the prospect of having their lives, finances, and futures put in the hands of court-appointed guardians.
With GRADE’s bullhorn, many families have stepped forward in recent years accusing courts of needlessly taking control of elderly people and their estates. Valdez recently helped speak out for James Pride, 78, an Air Force veteran from the Dallas area who awoke from a stroke in 2010 to find the court had appointed a guardian over him and frozen his assets. And Valdez says it’s been a long, hard, and costly road trying to get his personal and financial freedom back.
Similar stories have played out in Bexar County courts. One woman woke from a horrific car wreck to find she’d been appointed a guardian and declared incompetent to touch her own money. In the process of regaining her freedom, she wound up on the street while local attorneys pulled thousands from her life savings in court-approved fees. Lawyers drained hundreds of thousands of dollars from Mary Dahlman’s estate while arguing she couldn’t manage her own finances, though three medical experts testified to the contrary. And one San Antonio woman, after years of fighting for guardianship of her disabled daughter in Bexar and Travis counties, has now been completely cut off from her daughter after a court-appointed guardian terminated visits last month.
In 2005 the Senate Health and Human Services Committee and Governor Rick Perry declared an overhaul of Adult Protective Services and Child Protective Services as a matter of legislative emergency, the concern being that state caseworkers had routinely failed to notify courts when clients were in danger, often with tragic consequences. Lawmakers made major changes to the human resources and probate codes, Valdez says, changes aimed at ensuring protections for at-risk elderly.
Since then, an industry of nonprofit and for-profit guardianship organizations have popped up across Texas with paid, certified guardians who benefit financially from those whose lives they oversee. All of this comes with little state oversight or monitoring to ensure the well-being of the “ward,” as people thrown into guardianship are called in court.
“We’re seeing aging Texans placed under guardianshp by these agencies apparently just because they’re old, or that they have substantial financial resources and assets,” Valdez said. There’s no statewide agency with oversight of guardianship, meaning each individual probate court shoulders the responsibility. Families in North Texas have emerged as the loudest critics of the current system, many of which have traveled to Austin since 2010 to testify at state hearings.
In some of the state’s largest counties, like Bexar, so many people are shuffled into guardianship that each probate judge sees as many as 3,000 wards, and most courts only have a single investigator to check out potential problems. Bexar County Probate Court 1 Judge Polly Jackson Spencer estimated Bexar County juggles as many as 4,000 to 6,000 guardianship cases.
“We’re seeing an increasing number. We’ve been a great deal more active in actually encouraging people to report to us when they believe a person may be incapacitated and in need of a guardian,” Spencer said. In some cases, she said, family members might even quietly prod the court to initiate a guardianship proceeding “so they don’t come off as the bad guy.”