The Lawyer Who Sued the State of Michigan for Elder Abuse
Linda Arters experienced restricted visits with her legally blind and cognitively impaired mother Rosalyn B. Arters, who was allegedly surreptitiously relocated from Florida and eventually guardianized in Boulder County, Colorado.
“I attribute her death to the fact that she was continually denied proper medical care by the guardian,” Arters said.
Rosalyn Arters was among the 1.3 million adults that the National Center for State Courts has ventured to guess are under the thumb of a family or professional guardian who control some $50 billion of the adult’s assets.
The wrenching experience of being separated from her mother by the court appointed guardian lead Arters to become an advocate for other victims. “I wasn’t allowed to care for my own mother even though she wanted me to,” Arters said.
Once under a court appointed guardianship, older adults like Arters’ mother can be denied the right to decide where to live, to vote, to choose medical care and marital status, to handle finances, to hire a lawyer, and even to have family and friends visit them.
In response to the current state of elder guardianship affairs, Arters organized a complimentary 8 hour conference called Knowledge is Power on June 10 during World Elder Abuse Awareness week, hosted at the Bank Policy Institute in D.C. where the friends and family members of victims of elder abuse, probate guardianship abuse and financial exploitation shared relevant information, data, facts, guidance, resources and support.
“What started three or four decades ago as a small local cottage industry mining the wealth of a few elderly seniors has become exquisitely institutionalized, organized and sophisticated,” said Dr. Sam Sugar, author and founder of Americans Against Abusive Probate Guardianship, a non profit organization in Florida. “Probate court insiders have perfected what some have called the perfect crime of the 21st century. The process is so stealthy and quick that one can become a ward of any state in a matter of days with no warning and no way out.”
Attorney Bradley Geller says he became increasingly aware that the purpose of the system in Michigan had been corrupted after 30 years of involvement with guardianship issues. “Judges were ignoring the law with impunity and judges were blocking all legislative and administrative efforts at reform,” he said.
As a result, in October 2017, Counselor Geller filed a federal lawsuit naming the Michigan Supreme Court, the Michigan Attorney General, each of the state’s probate courts and all 300 professional guardians as defendants. The suit includes claims of Medicaid fraud, violation of due process and violation of the Americans with Disabilities Act.
Although the case has yet to be resolved and one issue is set for a hearing on July 31, Geller said that his lawsuit helped prompt the creation of an Elder Abuse Task Force by the Michigan Supreme Court Justices and the Michigan Attorney General Dana Nessel.
The task force is reportedly looking at recommending several changes to the guardianship system as described on the website and as detailed in Attorney Bradley Geller’s 2017 federal lawsuit against the state of Michigan.
“Justices Cavanagh and Bernstein are serving on the task force and are traveling across Michigan to attend listening sessions, hearing from the public regarding their specific concerns,” said Michigan Supreme Court Communications Officer John Nevin.
Geller said that he filed the federal complaint after becoming increasingly aware that the purpose of the system had been corrupted during his 30 years of involvement with guardianship issues.
At least one issue is set for a July 31 hearing. Allegations in his complaint include the following:
Since 1837, Michigan law has mandated that court appointed guardians annually account to the court. However, most probate judges reportedly don’t require it.
“This is how guardianship in Michigan got to be known as a ‘license to steal,’” Geller said. “If you never have to report to the court income or expenses, the guardian is free to do as he or she pleases.”
Guardians often sell the ward’s home immediately after being appointed by the court. “That’s where the big money is, to a guardian, is in selling the house for far less than fair market value even though the law states that the home must be sold for fair market value and the sale is in the best interest of the Ward,” Geller said.
Judges refuse to ever issue a limited guardianship. “Our statute has a bias toward limited guardianship rather than full guardianship but judges think it’s too much trouble for them either now or in the future, even though a limited guardianship may be best suited to the Ward’s needs,” said Geller.
Professional guardians, sometimes responsible for 300 or more individuals, are completely unregulated and favor institutionalization even when it is not necessary.
Geller alleges that the industry now clearly operates for the financial benefit of the few rather than the independence and welfare of the many. “It is judges who enable the system,” he said.
Geller’s game plan to stop elder abuse under guardianship nationwide includes the following:
State Supreme Courts must issue administrative orders
The Michigan Supreme Court maintains superintending control over the lower courts and could, in one sentence, issue an administrative order requiring probate judges to comply with the law. “It has never happened,” said Geller. “It may happen but it hasn’t happened yet.”
That’s because the Michigan Supreme Court has always been afraid of the trial judges, according to Geller.
“I’m not sure why that is but the Supreme Court has stuck its head in the sand or it’s the three monkeys of hear no evil; see no evil; do no evil,” he said.
Society must value its aging and vulnerable.
Geller believes American society doesn’t really respect children or older adults. “We value people to the extent that we perceive them as contributing to society, which we measure by employment,” he said.
Lawyers in other states must file lawsuits
“Nothing else has worked,” said Geller who drafted the Guardianship Reform Act as counsel to the House Judiciary Committee and has worked as counsel to a probate court.
“We’ve tried legislative change. It didn’t work. We tried to lobby the Supreme Court with arguments and information. It hasn’t worked. Litigation is the last, best hope.”
Qui Tam lawsuits, like the one that Geller filed, are brought under the False Claims Act, a law that rewards whistle blowers in successful cases where the government recovers funds lost to fraud. Geller’s lawsuit against the state of Michigan includes claims of Medicaid fraud, violation of due process and violation of the Americans with Disabilities Act.
Michigan’s recently named Elder Abuse Task Force may usher in an era of change.
“We have three relatively new justices and a new chief justice was named in January,” Geller said. “They’re going to crack this open.”
The Elder Abuse Task Force has been filled with representatives from about 70 organizations but there is only one probate judge. “The reason is because the probate judges have blocked any type of reform,” said Geller. “It’s in their self interest to keep the system just as it is because they have been able to do whatever they damned pleased until now.”