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captainsblogSo cold, even my glove was flipping it off right before I got out of the car this morning for Sunday walkies:
(And it took me a few hours to notice the penguin on top of the television in front of the stickers;)
So, anyway, to warm the cockles of your arteries with some nice anger-oriented blood pressure, I bring you two tales from this weekend- one, semifictionalized but happening all over the country; the other, very local.
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We came upon a Netflix stream of a new film starring Rosamund Pike titled I Care A Lot. She plays an evil scheming cunning woman not unlike her Gone Girl role, and this film has almost as many twists and turns along the way. The premise, though, is altogether a real one, and as both an attorney and an older person it gave me fits of anger about how the system can be gamed for profit by so many so-called "professionals."
Pike plays Marla, a professional guardian in an unnamed but probably set-in-New-England town. Her scam is to work with doctors, hospitals and adult care facilities to identify potential "wards" for her operation, who are then made the subjects of "emergency" ex parte orders placing them- and more importantly, their assets- under her complete control. After showing a few random victims of the scheme early on, the plot settles on "Jennifer Peterson," played by Dianne Wiest, a "cherry" of a find in that she has no family to even try contesting the appointment of the guardian and the depletion of her assets. The scene where Marla introduces herself to "Jennifer," flashes the court order and demands that she come hither, with a squad of police standing by to assist if she won't come, is frightening- and not figments of the author's imagination. The story then gets a bit ridiculous, with way too many dives into parking garages (where, unless you're Robert Redford, nothing good ever happens), diversions into "Jennifer's" family and Marla's love life- and an ending you will either love or hate, but it's worth watching if only to inform yourself about this real and completely sanctioned form of elder abuse.
Last year, Netflix took another look at the subject on the documentary side. An episode of its Dirty Money series was titled "Guardians, Inc.," and focused on two victims of the scam- one in Massachusetts, the other in Texas. It begins with an interview with New Yorker reporter Rachel Aviv, who wrote about the process a few years ago with a focus on a professional guardian in Nevada who ultimately got busted and sent to prison for doing this to extreme. The process is similar in most states, where there are few limits on who can initiate a guardianship, and once appointed, there are many limits on how the "ward" can get out of it. In most cases, the guardian gets complete access to the ward's assets and can sell them at will to pay for cadres of lawyers, appraisers and auctioneers to pick the carcass dry- and the ward and/or their family, if they even have the ability to challenge it, have to hire legal representation on their own dime to oppose it. Most of these appointments are by state court judges in specialized courts- family or probate- and while New York's are vested in the general civil jurisdiction of State Supreme Court (despite its name the lowest statewide level), they, like most in other states seeing this scam, are elected to office and must thus rely on donors and lawyers for support to keep their jobs. "Guardians, Inc." showed how the one hand was clearly washing the other, and how many tens of thousands of dollars were passing through those hands once the guardianships got approved.
Curiously, even though Netflix is heavily promoting the Pike film which debuted last week, the Dirty Money episode on the subject is missing from the streaming site. Perhaps that's because one of the lawyers in the Massachusetts case sued them for defamation and then fought to keep the case in a state court. I did find a Youtubed version of it; the sound was lousy, but I was able to follow along. Alas, you can't, because the account has been terminated.
I've only been involved with one adult guardianship case in all my years, and it was a weird one; two family members were fighting over control of their mother's assets, and when the son sued the daughter over it, she countersued for, and succeeded in getting, a court order putting mom under guardianship. The case eventually resolved, but not before thousands of dollars were spent on lawyers on all sides, on experts and on accountants trying to untangle the mess. At least that mom had notice of what was going on and wasn't forced to leave or sell her home.
Most of my practice is in Bankruptcy Court, where judges have just as many powers to take things away from people once a case is in the system. Houses can be ordered sold, other property liquidated, and transfers undone. The big difference is the respect for due process and listening to everyone who wants to be heard before those powers are exercised. It can be annoying when you're forced to wait a whole 20 extra minutes while an unrepresented debtor or creditor in your case (or just as likely, somebody else's on the same calendar) is given the full opportunity to "speak their piece" before the judge rules; now that I've seen this level of abuse in these guardianship cases, though, those minutes sure seem well-spent. The other difference is that bankruptcy judges are not elected positions, or connected to other officials who are elected; they therefore have no incentive or ability to favor their friends in making decisions or appointments, and the rules are abundantly clear and exceedingly complex before any professional can be appointed or paid out of a debtor's assets.
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It's crazy, I know. So let's look at the other angermongering story, originating in, of all things, a former insane asylum:
Designed by legendary architect Henry H. Richardson, the former Buffalo State Asylum for the Insane was eventually abandoned by the state, fell into disrepair and almost met the wrecking ball until major efforts were made to restore it. It came back to active life as the "Hotel Henry," combining a conference center, hotel, white-tablecloth restaurant and, unfortunately to our tale, events such as weddings.
Our only on-site experience there was going for dinner there on our 2019 anniversary. The restaurant had recently opened and we wanted to check it for both the food and the architecture. We came away disappointed: the entrance was badly marked, the neighboring tables too loud and our replacement table too isolated, and the food wasn't as good as the bill would have implied. The only oddly good memory of it was watching other patrons checking the building to see where the barred windows used to be and maybe trying to cop a fruit cup off a roving Nurse Diesel.
Then came COVID, and early last week, came word that the hotel would be permanently closing as a result of the losses:
It fell victim to Covid-19, co-owner Dennis Murphy of INNVest Lodging Services said.
"The pandemic body blow to our community was overwhelming for Henry," Murphy said. "That was the summary of it."
Murphy entered 2020 expecting it to be Hotel Henry's "best year ever." Instead, the pandemic slowed business to a crawl with a loss of 75% of projected revenue – and little relief in sight.
Well, some relief, as it turned out:
Hotel Henry received $666,237 in federal Paycheck Protection Program loans last year, allowing the business to retain 132 jobs, records show. But Murphy by October was warning the pandemic may prompt the venue to close at least temporarily.
And, in another sign of trouble, five current or former employees recently sued Hotel Henry and its owners, alleging management kept hundreds of thousands of dollars in wages, tips and commissions that should have gone to workers.
They seem nice. Reading on in today's paper, even more so:
Last June, Kimberly Behzadi and Dan O’Reilly moved their planned wedding at the Hotel Henry Urban Resort Conference Center from September 2020 to August of this year. One month later, the couple made their third installment toward the cost of the event, bringing the total paid to $12,000.
They didn't hear anything more from Hotel Henry until Tuesday, when an email informed them the venue was shutting its doors for good. In a terse phone conversation, a woman speaking for the hotel told them their money – much of it provided by Behzadi's father, Saied, before he died in January from pancreatic cancer – was gone.
Not just the initial $2,000 down payment – everything they’d paid was classified as a “deposit,” lost for good.
Theirs is not the only story of couples who were taken in by the Elmwood Village hipster chicness of the former asylum:
...scores of other couples planning weddings later this year or in 2022...say the hotel's management has provided little concrete information beyond revealing in phone calls they won't have their deposits and other payments returned to them.
It's not clear what their legal options are if they want to challenge the hotel's decision on the deposits. So couples are now scrambling to find new venues for their wedding receptions, reschedule with photographers and other vendors and wondering whether they can move forward without the thousands of dollars lost to Hotel Henry.
In a similar pre-COVID closing of an event venue in 2014, the state Attorney General leaned into the operator and got full refunds for depositors out of the sale of the venue property. Here, though, the property itself is owned by a non-profit tied to the state government that financed its rescue, so that likely won't be happening. I've yet to be contacted by any of the bludgeoned brides (I've got one claim on my desk which came in from one against a less tony suburban venue that took the deposit money and ran), but I'd recommend they try putting the operator into an involuntary bankruptcy, where deposit claims come ahead of taxes and they could at least get some control over the liquidation and possibly some recoupments from any evildoers who were picking the carcass of that PPP money.
And unlike these guardianship stories, I know all of the potential trustees that would be involved, and none of them would take it as a license to pillage and plunder any further.
ETA. A few more things learned while going down the rabbit hole of what happened to the documentary episode:
This review of I Care A Lot mentions the prior episode and confirms that it was pulled following the lawsuit. The removal to federal court did not succeed, and this summary from another site of its allegations suggest there may have been less, in at least the Massachusetts case, than met the eye of the Netflix camera, at least according to Nick Louisa's filed claim:
The articles and show portrayed the man as an elderly, but still lucid, man taken advantage of by a corrupt Massachusetts guardianship system out to suck money out of his holdings, as exemplified by Louisa and various lawyers appointed by Probate Court judge to represent his interests in proceedings during which one and then all of his properties were sold, initially to pay for cleaning up the properties, eventually to pay for his nursing-home expenses.
One of sources for the articles and show was Lisa Belanger, an Essex County attorney who provided them with documents from the man's court files, even though a judge had impounded them, after she tried to intercede in his case. Belanger has been writing about her own fight against the guardianship system for the Boston Broadside since 2017
In his suit, however, Louisa paints a different picture, of a confused elderly man with memory problems who had become a hoarder and who was increasingly unable to take care of his own affairs - at least one of the houses he owned in Needham were in such disrepair the town condemned it and it was torn down. Louisa writes that things came to a head in 2018 when a neighbor reported seeing what appeared to be frostbite on the man's face and authorities conducted a well being check and found the duplex he was living in filled with hundreds of bottles of urine and a dead cat in the freezer, along with the man, suffering from frostbite and hypothermia. There was no furniture in the house, just two couch cushions, and large stacks of unopened mail, including Social Security checks and bills.
Louisa writes the $3.1 million from the sale of the man's remaining properties went into a fiduciary fund for him, overseen by another lawyer, that pays his nursing-home bills and pays him a monthly stipend - out of which he can request additional funds.
"The articles" referenced at the start of that quote, and linked to above, were in something called the Boston Broadside, which I went to so I could read Ms. Belanger's pieces there. She rails about the Massachusetts Republican Guv being a "never-Trumper," and her side of the story appears to be taking the red line of the Q rather than the T. I checked the case docket, and it just got discontinued last month without the court ever ruling on the merits either way (translation: Netflix probably settled it by paying money and/or agreeing to the takedown). Any shade thrown at this documentary's particular depiction does not in any way minimize the severity of the problem, or of the need to address it far more than it is being addressed, and probably on a nationwide level. If one state cracks down, these evildoers will just play Hide The Meemaw and move her somewhere less regulated.