Netflix film horror story: Could a guardian take over your life in PA?
Netflix's popular new film "I Care a Lot" tells the shocking tale of a woman who improperly assumes legal guardianship of elderly people, taking control of their lives and selling off their assets to enrich herself.
In the film, Marla Grayson, played by Rosamund Pike, owns a guardianship firm and seeks out clients to bring under her care — especially those who have little family and sizable assets.
The story is highly dramatized, but it raises questions about vulnerable seniors. Can elderly Pennsylvanians improperly lose their agency through court order?
In Pennsylvania, a professional or family guardian may be appointed by a court when an adult of any age is deemed incapacitated. Guardians become responsible for making certain decisions on behalf of clients, according to the commonwealth's judicial administration website. Those decisions can include financial, medical and personal matters the incapacitated person has been deemed unable to make.
Patrick Cawley, an attorney with Keystone Elder Law P.C. in Mechanicsburg, said that requirements for the guardianship process are set by both the state Legislature and the state Supreme Court. A task force was created in Pennsylvania in 2013 to address the growing problem of elder exploitation.
Reform — especially recommendations that potential wards be properly represented in court — is a focus of some Pennsylvania judges, attorneys and lawmakers. But changes are moving forward slowly.
Why do the elderly need guardians?
Elderly people are prime targets for scammers because they often have savings built up through the years.
Guardianship can be granted to family members or — if no family is present, able or willing to take on the responsibility — to professional guardians.
"Guardianship can be expensive because attorneys have to spend time in court, you have to call an expert witness, namely a treating physician to say why a person is incapacitated," Cawley explained. "And it's also invasive because then there are annual reports to the state about medical decisions and financial decisions made for the incapacitated person."
Incapacitated people may have medical issues that make it difficult for them to take care of themselves or their finances.
"Anyone who has concern for that person can petition for guardianship," he said.
A family member, an accountant, an attorney or even a government agency such as an agency on aging all have the ability to petition for guardianship of an individual.
"If they find that somebody is essentially stealing from an older person or that there's neglect, and basic health care decisions aren't being made in a responsible way to protect that older person, they are very often the one who will petition for guardianship," he said.
Two hearings are held at which the potential ward is present and can stand up for their rights or have an attorney do so on their behalf. Only in rare instances, such as rapidly declining health, does the alleged incapacitated individual not appear in court.
"Depending on the cognitive capacity of that person, it can be awkward, or embarrassing because there's a doctor saying that they are incapacitated," Cawley said. "They might disagree with that, and they have the opportunity to be heard. So the alleged incapacitated person may have an attorney of their own."
Pennsylvania law does not currently mandate attorneys for all potential wards — though the task force recommended it — and a lawmaker wants to make that reform.
"Ever since guardianship reform was suggested, a clear right to counsel for the alleged incapacitated person in every case has been on the list of reforms," Cawley noted. "I do expect that a right to counsel will be among the provisions contained in a new bill."
Proper legal counsel ensures that the rights of the alleged incapacitated person are being upheld and that the guardianship petition is based on accurate and reliable evidence.
"An attorney can make sure that guardianship is absolutely necessary because there is no less invasive alternative, such as a power of attorney," Cawley said. "Keep in mind that guardianship deprives the incapacitated person of basic constitutional rights, such as the right to decide where to live, what medical care to receive, and how to manage property. An attorney for the incapacitated person is the guardian of that person’s fundamental rights."
Sen. Art Haywood, D-Philadelphia, is working on an updated version of a bill that the late Sen. Stewart Greenleaf originally introduced.
This legislation focuses on the following goals, according to Cawley, who worked with Greenleaf on past legislation:
- Expand the list of concerned persons who may challenge actions of a guardian.
- Enable the courts to appoint “examiners of actions” of guardians and to use mediation or arbitration for disputes.
- Fix a long-festering question about the authority of guardians to make certain end-of-life heath care decisions (by bringing guardians’ authority into conformity with decision-making powers held by other health care agents).
- Establish clearer grounds for when agents are required to be bonded.
- Establish priority appointment for family members (or persons otherwise preferred by the incapacitated person to serve as agents) as guardians.
- Establish a more precise process, with better procedural rights for the alleged incapacitated person, during applications for emergency appointments.
- Establish a clear right for all alleged incapacitated persons to have legal counsel to represent them in the guardianship proceedings.
- Establish a clear right for adults who regain capacity to seek termination of a guardianship.
While Cawley remains hopeful that this legislation will pass, it could take years for the bill to move through the various levels of approval.
When the system works (and when it doesn't)
Cawley said he's seen family members take advantage of loved ones through guardianship more often than professionals.
"I've never seen anything like the Netflix movie," he said. "I'm reminded of the Picasso quote, 'art is a lie that makes us realize truth.' It was a dramatization to make us really think about the way the system works."
In Pennsylvania, the system doesn't always work, but changes are slowly being made to address neglect.
In 2018, all counties in Pennsylvania incorporated the first statewide Guardianship Tracking System into their courts.
It is a new "web-based system for guardians, court staff, Orphans’ Court clerks and judges to file, manage, track and submit reports," according to the commonwealth's judicial administration. "The system integrates statewide guardian information, thereby helping to protect Pennsylvania’s most vulnerable citizens while streamlining and improving the guardianship filing process."
"No longer will there be guardians out there, hoarding money for themselves or letting the finances go to ruin of a person under their care, letting their health decline because they're not getting the person to see the doctor or they're just simply not going to visit the person," Cawley said. "All of that is information they will have to report to the state, and that will get flagged. Hopefully, it will be prevented before it gets out of hand."
Emil Giordano, a judge appointed by the Supreme Court and a member of the board of trustees of the Guardianship Foundation of the United States, said he has been fighting to improve the system.
Northampton County, where Giordano served, is the only county in the state that requires certification of guardians through the National Guardianship Certification Process — where they're required to take a test, participate in training and an asset and credit check is done, along with a criminal background check.
"I've pushed for that throughout the state, and there is a bill pending right now in the state House," he said. "We need certification of guardians, and we need it now."
When a guardian is appointed by the courts, Giordano said, oftentimes they're not related to the alleged incapacitated person.
"They go into homes and they find cash, they find jewels, they find all kinds of monies, and we need to ensure that the people we're placing in these positions of trust have been fully vetted — that we can trust them to do the right thing," he said. "That's why certification is so important."
Giordano would like to see guardians go through a minimum of six months of training, including ethics training.
"We've had a major overhaul of the guardianship rules and laws in the last three years, but it's still not enough," he said.
As a judge in the orphans' court division, Giordano looked for specific criteria in guardianship proceedings.
"We all know people in our lives that maybe their mental capacities are waning, and they have lucid moments," he said. "Are they going to give their Social Security number out over the phone? Are they going to be subject to someone coming to the door and saying 'write me a check for $20,000 or your grandkid's not going to get out to jail'?"
A simple solution
Across the commonwealth, there aren't enough professional guardians to handle the increasing number of potential wards funneling through the court system, Cawley said.
But the guardianship process can be avoided through pre-emptive estate planning.
"The most important takeaway is that even if that was a dramatization, guardianship is invasive," Cawley said. "There is somebody else controlling your life. If you want to avoid that, there is some basic estate planning that can be done to empower a family member — someone you would want to step up and make decisions for you — if you have an injury or if you get sick and you can't make those decisions yourself."
If someone finds themselves facing guardianship, Giordano said consulting an attorney can help.
"They need to be present if they want to," he said. "The law is more flexible now, so it could be limited to just making medical decisions or banking. People don't want their freedom taken away. The law favors limited guardianships — which means only for certain reasons — and then they can be re-reviewed. It's designed to protect the alleged incompetent person. They should consult an attorney if they have questions and are involved."
Overall, Cawley said he sees guardians as people who are fulfilling a desperate need in today's society.
"Well, professional guardians do not drive flashy cars and make a practice of ripping off old people — they do very important work," he said. "I wish we had more of them because they are really dedicated servants of needy people in the community."
While Grayson's role in the Netflix film seems extreme, cases of guardians stealing assets from their clients have been brought to light in recent years.
April Parks, a former professional guardian in Las Vegas could be an inspiration behind Grayson's character.
Parks obtained guardianship over hundreds of elderly clients for years — draining their bank accounts for personal gain and isolating them from their loved ones.
In 2019, Parks was sentenced to 16-40 years for multiple felony counts of theft. Judge Tierra Jones was shocked at Parks' scheme and handed down the maximum sentence, KTNV Las Vegas reported.
Additionally, Parks' business partner Mark Simmons and her husband Gary Taylor were given lesser sentences for their culpability.
In Philadelphia, a similar case was filed after court-appointed guardian Gloria Byars, along with her sister Carolyn Collins and husband Leon DeShields, were charged for embezzling more than $1M from 108 victims in 2019.
Delaware County District Attorney Katayoun M. Copeland said the three were "living the high life." The guardians used unauthorized funds from their clients to lease new cars, buy vacation timeshares, Louis Vuitton merchandise and more, the Philadelphia Inquirer reported.
The perspective of a professional guardian
Good News Consulting, Inc. is a training, consulting and care management company that has specialized in dementia care since 1998. The company, based in York, works in Pennsylvania, New York, Maryland and Delaware.
Guardianship services began in 2004 when the York County Office of Aging sought out guardians, according to Tina Hess, president, CEO and owner of Good News.
Hess is a National Certified Guardian, where she is recertified every two years, and a member of the National Guardianship Association. Additionally, the firm meets with legal counsel monthly to review cases and keep up with new laws and expectations of the court systems. Background checks are completed each month for each care manager as well, according to Hess.
Guardianship is not something that is typically sought out, Hess explained, but is implemented when a family member wants to be removed as the power of attorney but their loved one could no longer appoint a new power of attorney.
"Unfortunately, though, this is not the norm nor does it happen often," Hess said. "The majority of cases are referred to us from protective services agencies and attorneys who get involved with difficult family dynamics that require a third-party/neutral party to intervene. It is then up to the court to tell us what we are able to do. Our court order directs us to our responsibilities."
There is a provision in the law for a guardian to receive $100 per month for those on medical assistance and in a skilled nursing home, but any additional fees would have to be approved by the court system, according to Hess.
Good News is monitored yearly by the York County Office on Aging and the Lancaster County Office on Aging, where they maintain contracts.
Hess said she has heard of "bad guardians” over the years but also believes that the court systems are enacting positive changes.
"For example, here in York County, a guardian monitoring program randomly assigns an attorney to review cases and report back to the orphans' court," she said.
Good News encourages clients and their families to participate in the planning process and voice concerns and needs.
"Ultimately, though, we as the legal guardian must make the best decisions that we can with the information that is given to us," Hess said. "It is not always an easy thing."
Carley Bonk is a Watchdog Reporter for the USA Today Network - Pennsylvania. Her coverage spans across the southcentral region of Pennsylvania. She can be reached at firstname.lastname@example.org or on Twitter at @carls_marie.