Elder Care

Guardianship Nightmares Surge in Unregulated Environment

With a growing population of elderly, the lack of regulations and oversight has led to a disastrous situation for adults who lose civil liberties via guardianship proceedings.

With a growing population of elderly, the lack of regulations and oversight has led to a disastrous situation for adults who lose civil liberties via guardianship proceedings.

MP900442275A review by the Reading Eagle of court documents in three Pennsylvania counties show that when it is necessary for Adult Protective Services to intervene, agencies prefer having professional guardians rather than family members.

The story, “Finding solutions to Pennsylvania's troubled system of naming guardians,” reports that over the past two decades, filings statewide have risen 28%, faster than the increase of people 60 and older—the demographic most likely to be in a guardianship. In fact, the system in Pennsylvania already shows signs of strain: the Philadelphia Orphans Court is willing to retain a felon convicted of financial fraud as guardian to dozens of incapacitated adults, because of a shortage of professionals able to assume her caseload.

Advocates for reform say that finding solutions is critical, because of the explosive growth in a cottage industry of paid professionals that has supplanted roles traditionally held by family members.

"You can lose your civil rights," said Sam Brooks, senior attorney for Community Legal Services of Philadelphia, one of the leading advocates for the elderly in the state. "There needs to be some sort of system that ensures less invasive steps are taken."

Advocates call it supported-decision making, the process of accommodating individuals with disabilities or cognitive deficits (the most common justification for guardianship) by including family, friends, and other social support to enable life decisions without restricting the adult's autonomy.

 However, in many cases, the adult who’s alleged to be incapacitated is not present or not represented by an attorney in many of these proceedings. In many instances, judges will waive the attendance requirement with a doctor's testimony on behalf of the petitioner, that being present would be harmful to the senior in the guardianship proceedings. When counsel is appointed, Pennsylvania doesn't require attorneys to resist a guardian appointment and instead allows them to decide what is in their client's best interest.

Many adults in guardianship without resources are put in nursing homes and other facilities. However, advocates say that reform might save the state money because of the institutional costs.

Advocates also want standards established that would professionalize the industry and create a post-appointment monitoring system to filter out bad actors. For example, Philadelphia judges repeatedly appointed Gloria Byars, a convicted felon, to serve as guardian to vulnerable adults. This wasn’t against the law, because Pennsylvania doesn't have any standards for becoming a guardian. The state also doesn’t require a background check.

A statewide system to manage the industry is hoped to be in place by the end of this year. The hope is that this system will be able to effectively flat unscrupulous guardians, whether they are family members or professionals.

Reference: Reading (PA) Eagle (March 6, 2018) “Finding solutions to Pennsylvania's troubled system of naming guardians”

Insurance Agent Ordered to Give Back $1 Million from Client Policies

An administrative law judge said that Blanche Berenzweig should return the $1 million she collected from a deceased client’s estate.

An administrative law judge said that Blanche Berenzweig should return the $1 million she collected from a deceased client’s estate. The heirs of a reclusive man have objected to the will, claiming that she pressured their uncle.

Claire-anderson-60670This fall, a trial will be held to determine who LeRoy Ern’s real heirs are, as ordered by Milwaukee County Circuit Judge Marshall Murray. With an estate worth $1.6 million, the reclusive man, who died at 92 of advanced dementia, left his entire estate to a retired insurance agent. His will was drafted by an attorney that shared an office with the insurance agent.

The Milwaukee Journal Sentinel article, “Insurance agent should give up $1 million received from client's policies, judge recommends,” reports that 11 of Ern's 12 nieces and nephews objected to the will that was drafted in 2009. They said Berenzweig improperly pressured their reclusive uncle.

Ern also gave her power of attorney over his financial and health affairs, if he became incapacitated.

Rachel Pings, an administrative law judge, wrote a proposed order that was filed in the Circuit Court probate case. She says Berenzweig put herself in a position to entirely manage his money and exploited Ern's trust and isolation by knowingly being named as the beneficiary of his annuities, when she had no insurable interest in his life.

"She profited illegally by more than $1 million," Pings wrote.

The order now goes to state Insurance Commissioner who will decide whether to uphold the recommendations that Berenzweig return the annuity proceeds, permanently revoke her insurance license and fine her $3,000. The annuity proceeds are frozen.

Pings' decision says the fact that Berenzweig served as Ern's agent, beneficiary, and power of attorney posed obvious conflicts.

Ern was never close to his nieces and nephews. The relationships grew more distant as his siblings died. He met Berenzweig in 1993, when she helped him purchase an annuity. They became reacquainted in 2008, when Ern was having a problem with that policy.

A friendship developed, and Berenzweig said she vehemently objected to Ern making her the beneficiary of the annuities and the estate but that her client was insistent.

Pings noted in her opinion that insurance regulators consider Berenzweig "an unethical insurance agent who took advantage of her position of trust with a lonely old man, so she could benefit from his sizable estate when he died."

Berenzweig’s attorney argues that she did not violate any laws or rules, but that some of the problems she is facing could have been avoided. The entire will, which named Berenzweig the sole beneficiary, is being challenged.

Reference: The Milwaukee Journal Sentinel (March 12, 2018) “Insurance agent should give up $1 million received from client's policies, judge recommends”

Scroll to Top