More Questions Surface on Melodie Scott Cases
By Janet C. Phelan
Lawrence Yetzer was standing in his front yard, yelling. The fifty-two year old Rialto man, who was blind and suffered from cerebral palsy, had just discovered his father lying unmoving on the front room floor.
“Help!” yelled Yetzer. “Something has happened to Dad!” Please help us!”
Neighbor Yvonne Boone remembers that the paramedics came. Yetzer’s step-father, Max Vantilburg, had died of a heart attack. And Lawrence Yetzer, who had lived with his parents his entire life, was left alone in the world. He was also left a chunk of money, as the sole beneficiary of the Anne and Max Vantilburg estate.
The court appointed Melodie Scott, of C.A.R.E., Inc
, as the Successor Trustee of the Vantilburg estate. In a separate proceeding in San Bernardino Court, Melodie Scott moved to have herself appointed as Lawrence Yetzer’s conservator.
In her application for the conservatorship, Scott declared to the court that Lawrence Yetzer had an IQ of only 59 and was unable to comprehend the conservatorship proceedings.
Yvonne Boone, who knew the family for years, disputes this statement. “He wasn’t retarded like that,” said Boone, who had also served as a caregiver for Yetzer. “He was a real sociable, talkative guy. Sure, he was blind, but he understood what was going on around him.”
The conservatorship lasted less than four months. On February 6, 2001, Lawrence Yetzer died. On January 14, Boone, who was caring for Yetzer on a full time basis at that point in time, noticed that he was sick. “He was coughing and his color was bad,” she recalls. He was taken to San Bernardino Community Hospital and admitted. The Sentinel has obtained these records, which state that he was “cyanotic” (blue) at the time of admission. He was admitted with a tentative diagnosis of congestive heart failure and pneumonia.
But his bronchoscopy showed no trace of a pneumonia bug and his white blood cell count, which would have been elevated if he had any type of infection, was normal. Questions began to surface, evidenced by doctors’ notes, as to what was really wrong with Lawrence Yetzer. The diagnosis shifted to “severe adult respiratory distress.”
Within a few days of admission to San Bernardino County Hospital, his white blood cell count began to climb, revealing that he had caught some kind of infection while in the hospital. He was put on a ventilator on January 16. The nursing notes state that Yetzer was put on “Versed 2mg IVP given for sedation as per MD order every five minutes due to patient fighting the ventilator.” He was put in restraints and shortly the doctor ordered him to be given regular intravenous Atracrium, which paralyzed him. The restraints were then removed. The doses of Atracrium continued.
And then his course of treatment took a curious turn. This reporter has retrieved his medical records from this hospitalization, which were requested from the hospital by an aunt, living in Ohio. San Bernardino Community Hospital had initially refused to release these records to the aunt, who, as next of kin, is legally entitled to these records. After the hospital was supplied with detailed proof that the aunt was indeed next of kin, the hospital then lost the request. The request was again submitted, at which point the hospital stated that they would not give the records to the aunt, but only to who was listed as “next of kin” on Lawrence Yetzer’s death certificate.
However, the standard death certificate has no box for “next of kin.” A query was made as to what law the hospital was citing. When it was also suggested that a judge might make a different determination, the hospital backed down and agreed to send the records.
Only partial records were sent to the aunt and another request was then tendered. Renee Wheeler, the administrator in charge of medical records at San Bernardino Community Hospital, inquired if there was going to be legal action taken.
The medical records show that Lawrence Yetzer was dosed with a number of sedatives and opiates which severely retard a person’s ability to breathe. He was put on a Versed drip often as high as 10 mg an hour, as well as Ativan ,Phenobarbitol and Atracrium . The doctors’ notes repeatedly refer to Yetzer as “paralyzed and sedated.” Finally, on February 3, three days before he died, he was curiously started on Morphine injections. The hospital records list the dose as 4 mg every 3 hours PRN. There were no indications in the records that Lawrence Yetzer was in pain and would have needed Morphine.
Morphine and Versed are both contraindicated for people in respiratory distress and may put an individual into respiratory arrest. The two in combination are known to have a potentiating effect. Drug companies have issued cautions about mixing Versed with Morphine or with Phenobarbitol, as these combinations may result in respiratory failure. He was also given antibiotics. On the day of his death, a nurse cryptically noted that “PT on multiple antibiotics-In spite of no organisms identified.”
On February 6, a conference was called with Scott, Alan Garcia, Dr. Arora and hospital administrators. The decision was made to issue a DNR (“Do Not Resuscitate” order) and to pull Lawrence Yetzer off his ventilator. The records state that “a terminal wean was done” after the chaplain visited Yetzer. Dr. Arora signed the order to withdraw him from life support and Lawrence Yetzer died.
In her final accounting for the Yetzer conservatorship, Melodie Scott declared to the court that Lawrence Yetzer died of a “sudden massive stroke.” His death certificate lists pneumonia as cause of death.
Inexplicably, the hospital records state that as of January 23, a “new conservator,” Alan Garcia, was assigned to Lawrence Yetzer. Garcia worked as a case manager for Scott’s company, C.A.R.E., Inc. Conservators are appointed (and changed) via court proceedings. There is no mention in the Yetzer court file that the conservatorship changed hands from Scott to Garcia.
But the story takes an equally disturbing turn here. Scott’s accounting for the Vantilburg Trust details $396,529.89 as the remainder in the Trust and duly lists the distributions to the remainder beneficiaries. The Trust was to be split so that 50% was distributed in equal shares to the seven surviving brothers and sisters of Anne and Max Vantilburg (Yetzer’s deceased parents) and 50% distributed in equal shares to four charities . The First and Final Accounting bears the signature of attorney J. David Horspool, who duly noted in this document that the siblings would each thus receive 7.14285% of the final assets and the charities would each receive 12.5%.
This reporter has uncovered a considerable discrepancy between the amount listed as final assets and the amount distributed. The court record reveals that each sibling signed for $5,125.70 and that a representative from each of the four charities signed for $8,970. The total amount distributed to the beneficiaries thus amounts of $71,759.90.
Melodie Scott petitioned the court for her fees, which came to $14,185.23. Attorney Horspool requested $12,187.50. Scott also requested that $2800 be held in reserve for taxes. The total amount distributed thus came to $100,932.63. Over $296,000 remained unaccounted for.
The Final Accounting notes that a total of $300 was distributed to Lawrence Yetzer .
E. Joan Nelms, who is a probate attorney working in San Bernardino, presided over the case as a judge pro-tem. Nelms has represented Melodie Scott in a number of cases.
This reporter contacted attorney J. David Horspool requesting input about the unaccounted -for monies and issues surrounding Lawrence Yetzer’s hospital care. Initially, Horspool agreed to get his files out of storage in order to answer the questions. When he failed to respond, this reporter again contacted attorney Horspool, who then levied threats of legal action. On June 11 he wrote, “ I am not going to call you. Furthermore, the issue isn’t with the Lawrence Yetzer matter. The copies of the Receipts which you faxed to my office concerned the Van Tilberg Trust. I have in my files original signed receipts for the funds that were distributed, which reconcile to the assets on hand at the end of the accounting period, adjusted for payment of court-approved attorneys’ fees and trustee’s fees. So there was no failure to distribute $300,000.00, or any other sum. For you to imply, allege or in any way accuse either myself or Ms. Scott of not distributing all of the funds as she was required to do would be wrong, and, now that you know it would be wrong, would also be viewed as grossly negligent at best, and maliciously done in utter disregard of the truth, at worst. Either way, it would be actionable and I am putting you on notice that such action would be taken should you make such unfounded accusations.”
In an unusual manner of ending the communication, he then wrote: “Have a nice rest of your life for however much more time the Good Lord grants you.”
This reporter responded urging him to turn over the receipts which he alleged would reconcile the accounts. At that point, it appears he blocked further emails.
An appeal was made to J. David Horspool’s sister, Karin Horspool, who works as an attorney in the firm of Horspool and Parker. She responded by threatening to issue a restraining order.
In June of 2009, the San Bernardino County Sentinel reported on the case of Elizabeth Fairbanks, also a former conservatee of Melodie Scott, who died after contracting pneumonia. Scott had used her power of medical care to withhold antibiotics from Fairbanks. Fairbanks was also given Roxanol, which is a liquid form of morphine, prior to succumbing.
Melodie Scott, whose professional fiduciary license was denied by the California State Professional Fiduciary Bureau after Administrative Law hearings which spanned from May to October of 2009, has appealed the denial of her license. Her license was refused on the grounds that she 1) made false statements on her licensing application 2) continued to act as a fiduciary after her license was denied and 3) had a drunk driving conviction. Gary Duke, who is a lawyer with the Department of Consumer Affairs, has stated that a final decision should be reached in mid-July. In the meantime, Scott has begun a new business, Reliant Professional Services, located at 104 State Street in Redlands, which is also a conservatorship business. Duke stated that the Department of Consumer Affairs only licenses individuals and thus Scott may own a conservatorship company if she does not herself perform fiduciary or conservator functions.
The current website for Reliant Professional Services advertises Melodie Scott as a Professional Fiduciary.
Monday, June 1, 2009Suit Against Guardians Filed in California Court by Janet PhelanLINK
Janet C. Phelan, Objector in propria personam
258 A Street #1-15
Ashland, OR 97520
Telephone: (647) 456-1618
(323) 515-4889SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF RIVERSIDE - CENTRAL DISTRICT
AFFIDAVIT AND VERIFIED COM-PLAINT FOR CIVIL DAMAGES OF BENEFICIARY JANET C. PHELAN IN SUPPORT OF PETITION FOR SUR-CHARGE OF TRUSTEE MELODIE Z. SCOTT (Cal. Prob. C. §§17,200(b)(7, 11, 12), 855, 856, 859)
Comm. Michael McCoy
Time:AFFIDAVIT OF JANET C. PHELAN
I, Janet C. Phelan, do hereby declare:
1. I am an adult daughter of James and Amalie Phelan.
2. I am a beneficiary of the James R. and Amalie M. Phelan Family Trust.
3. I am a successor in interest of the decedents.
4. I have personal knowledge of the facts asserted herein and if called to testify to the following, I could and would competently so testify.PROCEDURAL HISTORY
5. Melodie Z. Scott was designated as Successor Trustee for the James R. Phelan and Amalie M. Phelan Trust on January 27, 2003.
6. I was not served with notice of the hearing.
7. Melodie Scott was surety bonded by American Contractors Indemnity for $586,000 in 2004 indemnifying her for liability as trustee of the Phelan Trust in a lawful manner. The bond number is 425199.
8. Melodie Scott is being removed from the Trust, due to her license being denied by the California State Professional Fiduciary Board after an administrative determi-nation that she made false statements on her application.
9. On information and belief, Ms. Scott is also under criminal investigation by the San Bernardino Grand Jury, as reported in the Los Angeles Times article of February 15, 2009 (Exhibit 1).
10. Substantial evidence of numerous acts of extrinsic fraud, conversion, breach of fi-duciary duty, concealment, material misrepresentation and conspiracy by Melodie Scott, during her tenure acting as trustee for the Phelan Family Trust, and by her attorney, J. David Horspool, was supported by petitioner in her April 8, 2008, April 25, 2008 and April 29, 2008 affidavits.NEWLY DISCOVERED EVIDENCE OF MISAPPROPRIATION AND THEFT
11. Further recent investigation has uncovered shocking additional evidence of fraud, theft, and misrepresentation to the court have come to light. The evidence of these acts is as follows ¶¶12-15):
12. Bank statements of Redlands Community Bank, newly provided to me by an in-formant on or about April 2009 disclosed that Melodie Scott debited an unreported $30,000 from the account she managed for my mother on May 24, 2004, twenty days after my mother’s death (Exhibit 2). I do not recall nor can I find any record of Melodie Scott ever having declared these debits to the court or included them in an accounting.
13. In May 2009, the private investigation firm, Apex Strategies, acting on my behalf, recently searched and uncovered records disclosing that Melodie Scott has been re-questing Redlands Community Bank to issue “Counter checks.” A recently ob-tained example of this is provided in Exhibit 3. According to this record, on 5/11/09, Melodie Scott had the bank issue a counter check for $1000. These “Counter checks” by their very nature will not show up in sequence in her account-ings and also enable her to embezzle or otherwise defraud the Trust and the court and obscure her actual debits from the Trust. This “Counter check” was issued on The Amalie Phelan Trust Account, which is the parent account. As the parent trust was set up by Melodie Scott to fund the daughter trusts, there is no reasonable ex-planation for a debit of $1000. The only regular bill paid by the parent trust is the $135 monthly storage bill for the remainder of my mother’s belongings.
14. As evidenced by non-sequential and missing check numbers in her reporting, Ms. Scott has repeatedly written other checks on the trust account that were not re-ported to the court. I have repeatedly requested information, at least 5 times during the life of the trust, as to what checks were written that were not recorded. Exhibit 4 is the check I previously pointed out to the court was missing in her own general ledger and accountings to the court, identified as check number 667, issued for $4,546.33. Scott never reported this check to the court nor listed it in her own general ledger. There are many other missing check numbers that have not yet been accounted for. Since the Trustee is obviously writing checks and not recording them into her ledger, this also constitutes fraud and fraud upon the court. The trus-tee and her attorney have not responded to my requests for explanation, a violation of Probate Code 16060.
15. A legal demand for documents was issued on April 13, 2009 (Exhibit 5) following informal requests for records (Exhibits 6 and 7). Attorney Horspool refused the re-quest. Given the proven pattern of evidence that Ms. Scott is apparently misappro-priating funds by writing unreported checks and counter checks from the trust ac1. count for her own personal enjoyment and enrichment and/or conversion, I believe and allege that there exists a reasonable likelihood that these additional documents if produced on discovery, would reveal additional fraud and theft.
I hereby state under penalty of perjury under the laws of the State of California that the above stated facts are true and correct to the best of my knowledge.
Affirmed this 30th day of May 2009, at Toronto, Ontario, Canada.
Janet C. PhelanCOMPLAINT FOR CIVIL TORT DAMAGES (Cal. Prob. C. §855, et seq)
COUNT I, NEGLIGENCE
(Against both Melodie Z. Scott and J. David Horspool)
1. Plaintiff incorporates and realleges herein by reference the allegations set forth in ¶¶1-15 of this petition.
2. As a result of the negligence of the defendants, plaintiff was hurt and injured in her health, strength, and activity, sustaining injury to her person, all of which have caused and continue to cause plaintiff great physical and mental pain and suffering.
3. Because of such injuries, defendants have incurred general damages and special damages including medical and allied expenses all in an amount according to proof as well as damages for the intentional infliction of extreme emotional distress.
COUNT II, BREACH OF FIDUCIARY DUTY --
Misappropriation and Theft of Trust Monies, Failure of Duty of Trustee to Provide for Beneficiary’s Minimal Basic Needs, Pain and Suffering, Personal Injury, Failure of Fiduciary to Administer Trust Impartially and fairly to Plaintiff
(Against Respondents Scott and Horspool)
4. Plaintiff realleges and incorporates herein by reference the allegations set forth in §§1-18 of this petition.
5. Issuing checks and failing to report them to the court. Evidence of missing check #667 is again provided to the court as Exhibit #4. The court will note that this check was never listed in her general ledger for that year, 2004, attached as Exhibit #8. Other skipped check numbers include #126, 127, 128, 129 (from the 2002 ledger, Exhibit #9), Check #183 and #225 (also from the 2002 ledger). Jumping to 2004, the following numbers constitute skipped check numbers, and go to probable theft and/or fraud on the part of Trustee Melodie Scott--#569, 650, 663 and, of course #667. The evidence provided the court of these skipped check numbers is only partial, given that I do not have the cooperation of Melodie Scott in disclosing the financial records of the Trust.
6. Ms. Scott and Mr. Horspool, knowingly, intentionally and with malice and oppression acting in their roles as trustee and attorney for trustee of the Phelan Family trust, refused to disburse me trust monies, which the court had authorized and were necessary for my survival. These refusals were based on fraudulent declarations in support of Restraining Orders, resulting in total impoverishment and homelessness of this beneficiary. The court need only review the accountings filed with the court from 2002 until 2004 to note that payments from the Trust to this beneficiary were halted in June of 2002 and did not resume until October of 2003. The court will note that these payments again ceased in December of 2003,per Melodie Scott’s declarations to the court in thefiled accountings and did not resume until October of 2004. The court should be made aware that this beneficiary lost 80 pounds in one year because of lack of money for food due to economic hardship inflicted on me through the withholding of trust monies, which had been authorized to be disbursed by the court on December 18, 2001. Attorney Horspool was advised of the lack of money for food in the fall of 2002 and refused to respond, ignoring my most basic needs to have money for food. Scott has episodically denied me funds for medical expenses as well, and has currently refused to pay for medical expenses for one year. The Phelan Family Trust specifically states that medical expenses should be paid by the Trust, if not paid by insurance or other public benefit programs.
7. Double Damages. As provided by Cal. Prob. Code §859, Petitioner is entitled to claim double damages, and by Cal. Prob. Code §856 is entitled to have the respondent trustee’s surety bond remanded to petitioner as relief from these damages.COUNT III. NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DENIAL OF PARENT-CHILD CONSORTIUM, DEPRIVATION OF FAMILIAL ASSOCIATION (FIRST AMENDMENT)
(Against both Scott and Horspool)
8. Plaintiff realleges and incorporates herein by reference the allegations set forth in ¶¶1-22 of this petition.
9. Ms. Scott and Mr. Horspool knowingly, intentionally and with malice and oppression actively interfered with my relationship with my mother by applying for and obtaining Restraining Orders based upon fraudulent declarations of non-existent behavior on my part.
10. A parent has a "fundamental liberty interest" in "the companionship and society of his or her child, Kelson v. City of Springfield, 767 F.2d 651, 654-55 (9th Cir.1985) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)).
11. Moreover, "the First Amendment protects those relationships, including family
relationships, that presuppose 'deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life.' " Board of Dir. v. Rotary Club, 481 U.S. 537, 545 (1987) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 619-20 (1984)); see also Conti v. City of Fremont, 919 F.2d 1385, 1388-89 (9th Cir.1990).
12. Mrs. Scott failed to inform me of my mother’s death until two weeks after her passing, although she and Mr. Horspool were contacted a number of times by me and by others on my behalf during the period from late April 2004 until I was finally told that my mother had died. I was informed of this in late May of 2004, after she had been buried without my notification. The brutality of their withholding this information from me is consistent with their prior and subsequent acts of intentional and malicious infliction of emotional harm.
13. Defendants had actual and constructive knowledge of their constitutional violations and failed to correct deprivations and errors within a reasonable time.
14. As a direct and proximate result of defendants’ breach, petitioner has suffered and will continue to suffer mental distress, emotional distress, discomfort, annoyance, anxiety, physical injuries, medical costs, illness, pain and suffering, lost opportunity, property damage, lost income, all to the damage in an amount to be determined at hearing and in an amount within the jurisdictional limit of this court.
15. The conduct of the respondents and trustees, in failing to correct these wrongs when they had sufficient time was knowing, intentional, and willful, and was done with full knowledge of the discomfort, annoyance and injury that these privations would cause petitioner.
16. Punitive Damages. In maintaining the wrongful actions, defendants acted with full knowledge of the consequences thereof and of the damages being caused to plaintiff. Notwithstanding this knowledge, defendants, in conscious disregard of plaintiffs’ health and safety, failed to remedy their errors. This failure was willful, oppressive and malicious. Plaintiff is therefore entitled to punitive damages against the defendants, and each of them, in an amount to be determined by the court.COUNT IV. SLANDER AND DEFAMATION OF CHARACTER
17. Plaintiff realleges and incorporates herein by reference the allegations set forth in ¶¶1-31 of this petition.
18. Libelous defamation on my character by attorney Horspool. This is cited in paragraph 2 (page 2) of Amendment to Declaration of Janet Phelan in Support of Objections to Second Accounting by Trustee Melodie Scott, and provided in Exhibit 1 of that document and again on page 3 ¶5, supported by Exhibit 2 of that document, referencing Horspool’s response to my article “Probate Murders—Part Two.”
19. Horspool again attacked my character alleging in his Petition to Accept Resignation of Trustee and for Appointment of Successor Trustee, filed February 26, 2009, in paragraphs 2, 3 and 4, by falsely stating that the Trustee must resign because of my alleged “mental illness,” rather than because of her license being denied by the State of California.COUNT V. FRAUD, MISREPRESENTATION, THEFT, UNJUST ENRICHMENT AND WRONGFUL CONVERSION
(Against both Scott and Horspool)
20. Plaintiff realleges and incorporates herein by reference the allegations set forth in ¶¶1-34 of this petition.
21. Documentation supporting my allegations of perjury and fraud upon the court by Ms. Scott and Attorney Horspool in applying for the June TRO was supplied to the court several times, and most recently in my Objection to the Resignation of Melodie Scott, filed April 6, 2009, contained in Exhibit 3 of that document. Exhibit 2 is the medical record of my mother’s hospitalization which proves incontrovertibly that my mother received surgery as a result of my transporting her to the hospital in June of 2002.
22. Failing to do an inventory and appraisal of the estate assets, thus facilitating Ms. Scott’s theft of my mother’s belongings.
23. In her Supplement to First Accounting, filed September 20, 2006, Scott admits to neglecting to do the inventory and appraisal, thus violating one of her primary duties. Going to documentation of continued acts of fraud, Melodie Scott had previously billed the Trust 4.6 hours at $85.00 an hour on 2/06/03 and a meeting with Attorney Horspool for same at .75 hours at $85.00 an hour—documented by Probate Examiner Charles Mayr—in Exhibit 12 of April 8, 2008 Declaration Of Janet Phelan in Support of Objections to Second Accounting by Trustee Melodie Scott.
24. Stealing items from my mother’s storage space. The court was provided my police report to the Redlands Police Department as Exhibit 3 of the April 25, 2008 Amendment to Declaration of Janet Phelan in Support of Objections to Second Accounting by Trustee Melodie Scott. The Redlands Police informed me the police report was forwarded to the California Attorney General’s Office. As there is no record of such a report in the system at the AG’s office and no file number for such a complaint on file at the AG’s office, it would appear that the report was lost or otherwise misappropriated.
25. Refusing me access to the storage space to document the theft.
26. Fraudulent misrepresentations of the record to the court as to the decision made by Judge Lefkowitz in Santa Monica Superior Court concerning Horspool’s failed application for court costs in court proceedings. The court was provided Judge Lefkowitz’s decision as Exhibit 15 to the previously cited April 8, 2008 Declaration of Janet Phelan.
27. Concealing the factual nature of trust assets from me and from the court (reference paragraph 11 of this document).COUNT VI, FRAUD UPON COURTS AND UNDUE INFLUENCE
(Against both Scott and Horspool)
28. Plaintiff realleges and incorporates herein by reference the allegations set forth in ¶¶1-42 of this petition.
29. Petitioner believes from substantial discovered evidence that this case has been fraught with fraud upon the courts and evidence of undue influence. I refer the court to the record of the August 1, 2002 “hearing” on my first TRO. The hearing did not take place, as previously documented to the court as Exhibit 4 and Exhibit 5 of my Objection to the Resignation of Melodie Scott on file with the court and I was restrained from my mother without due process by Judge Stephen Cunnison. Judge Cunnison again violated my rights as a U.S. citizen to make complaints to justice agencies in the order to further restrain me from making police reports, reports to the District attorney, FBI and other agencies which he signed on October 8, 2002. Judge Selim Franklin approved the accountings on November 18, 2004, wherein attorney Horspool had filed as a confidential bank record the May, 2004 Community Bank of Redlands statement, which reveals the aforementioned thirty thousand dollar theft. The fact that the Judge had access to this statement and still approved the accountings supports allegations of undue influence. On June 27, 2002, Commissioner Burgess (formerly Ettinger) issued a gag order on me, which was never mentioned in court, nor was I ever served notice with the gag order. Burgess again issued a void order on April 30, 2008, when she overrode my objection that attorney Horspool not be granted permission to go into the Trust and retrieve his court costs, as these had previously been denied by Judge Lefkowitz in Santa Monica Superior Court. This also substantiates my claims of undue influence.VERIFICATION
I, Petitioner Janet C. Phelan, do hereby declare under penalty of perjury that I have read the foregoing complaint and petition for surcharge and the facts stated therein are true and correct, based on my direct first hand personal knowledge.
Affirmed this 30th day of May 2009, at Toronto, Ontario, Canada.
Janet C. Phelan, Petitioner in propria persona
 Judicial Notice and Objections to Second Accounting by Trustee Melodie Scott, file stamped April 8, 2008, Declaration of Janet Phelan in Support of Objections to Second Accounting by Trustee Melodie Scott, filed April 8, 2008 and in Amendment to Declaration of Janet Phelan in Support of Objection to Second Accounting by Trustee Melodie Scott, filed on April 25, 2008.(1) Redlands Community Bank Acct. No. 21661627, Amalie M. Phelan Trust, Melodie Z. Scott, Trustee.
It is typical Modus Operandis for attorneys and guardians to block all funds to the family of their victims as to make it impossible for victims and their families to hire legal counsel.
Then they will continue to discredit and villify the victims families who are fighting for their lives and that of their love ones.
We wish Janet Phelan all the respect and consideration she deserves from the California Riverside District Probate Division.
I encourage all to go to their website http://www.riverside.courts.ca.gov/probate.htm
and kindly and respectfully remind them that the courts exist for the benefit of the citizens and not vice versa, please take a few minutes and communicate to them your concern with the fact that so many people are becoming increasingly saddened and discouraged by the lack of moral courage and ethics in our judicial system.
Lets light up that switchboard with Regular mails and phone calls
Riverside Probate Court
4050 Main StreetRiverside, Ca. 92501
EditorEstate of DenialPART ONE
GUARDIANS FOR PROFIT
When a Family Matter Turns Into a Business
Conservators are supposed to protect the elderly and infirm. But some neglect their clients, isolate them -- even plunder their assets.
By Robin Fields, Evelyn Larrubia and Jack Leonard, Los Angeles Times Staff Writers, November 13, 2005LINK
Helen Jones sits in a wheelchair, surrounded by strangers who control her life.
She is not allowed to answer the telephone. Her mail is screened. She cannot spend her own money.
A child of the Depression, Jones, 87, worked hard for decades, driving rivets into World War II fighter planes, making neckties, threading bristles into nail-polish brushes. She saved obsessively, putting away $560,000 for her old age.
Her life changed three years ago, when a woman named Melodie Scott told a court in San Bernardino that Jones was unable to manage for herself. Without asking Jones, a judge made Scott — someone she had never met — her legal guardian.
Scott is a professional conservator.
It was her responsibility to protect Jones and conserve her nest egg. So far, Scott has spent at least $200,000 of it. The money has gone to pay Scott's fees, fill Jones' house with new appliances she did not want and hire attendants to supervise her around the clock, among other expenses.
Once Jones grasped what was happening, she found a lawyer and tried, unsuccessfully, to end Scott's hold on her. "I don't want to be a burden to anyone," she told a judge, almost apologetically. "I just wanted to be on my own."
Jones' world has narrowed. She used to call Dial-A-Ride and go to the market, or sit in her driveway chatting with neighbors.
Now she spends her days watching television in her living room in Yucaipa, amid pots of yellow plastic flowers and lamps with no shades. The caretakers rarely take her from her house, except to see the free movie each Friday at the local senior center.
"I'm frustrated, because I don't know my way out," she said, sitting within earshot of one of Scott's aides. "There must be a way out."
Jones' conservator is part of a young, growing and largely unregulated trade in California.
Conservatorship began as a way to help families protect enfeebled relatives from predators and self-neglect. As a final recourse, courts take basic freedoms from grown men and women and give conservators sweeping power over their property, their money and the smallest details of their lives.
But lawmakers and judges did not foresee that professionals would turn what had been a family matter into a business.
In the hands of this new breed of entrepreneur, a system meant to safeguard the elderly and infirm often fails them.
The Times examined the work of California's professional conservators, reviewing more than 2,400 cases, including every one they handled in Southern California between 1997 and 2003.
Among the findings:
• Seniors lose their independence with stunning swiftness. More than 500 were entrusted to for-profit conservators without their consent at hearings that lasted minutes. Retired candy company owner Donald Van Ness, 85, did not know what had happened to him until he tried to pay for lunch at a San Diego-area restaurant and was told his credit card had been canceled.
• Some conservators misuse their near-parental power over fragile adults, ignoring their needs and isolating them from loved ones. One withheld the allowance that a disabled man relied on for food, leaving him to survive on handouts from a church. Another abruptly moved a 95-year-old woman to a care home and for a month refused to tell her daughter where she was.
• In the most egregious cases, conservators plunder seniors' estates. One took 88-year-old Thelma Larabee's savings to pay his taxes and invest in a friend's restaurant. Helen Smith's conservator secretly sold Smith's house at a discount — to herself. The conservator's daughter later resold it for triple the price.
• More commonly, conservators run up their fees in ways large and small, eating into seniors' assets. A conservator charged a Los Angeles woman $170 in fees to have an employee bring her $49.93 worth of groceries. Palm Springs widow Mary Edelman kept paying from beyond the grave: Her conservators charged her estate $1,700 for attending her burial.
• Once in conservators' grasp, it is difficult — and expensive — for seniors to get out. Courts typically compel them to pay not only their own legal fees, but those of their unwanted guardians as well. In the 15 months it took Theresa Herrera's grandson to unseat her conservator, almost half of the 92-year-old's $265,000 estate had been exhausted.
"It's really scary," said Mitchell Karasov, a North Hollywood attorney who specializes in elder law. "Would you want that to happen to you? This is what we'll have to look forward to — that we'll be disposable when we no longer have a voice."
There are about 500 professional conservators in California, overseeing $1.5 billion in assets. They hold legal authority over at least 4,600 of California's most vulnerable adults.
Yet they are subject to less state regulation than hairdressers or guide-dog trainers. No agency licenses conservators or investigates complaints against them.
Probate courts are supposed to supervise their work. Yet oversight is erratic and superficial. Even when questionable conduct is brought to their attention, judges rarely take action against conservators.
Three of the past four governors have vetoed legislation that would have provided tougher oversight.
This deeply flawed system is about to be hit by a demographic wave. By 2030, the number of Americans older than 65 is expected to double. Experts predict that as many as 10% of them will suffer from Alzheimer's disease.
'She Was Managing'
Helen Jones said she always dreaded the sort of old age she has now, marked by childlike dependence.
Married only briefly and late in life, Jones said she had always done for herself, even as a child in Nebraska, where she scavenged for coal along the railroad tracks to help keep her family warm.
Before Scott entered her life, she kept her financial records in accordion files, paid her bills promptly and knew how much money she had, down to the penny.
She was nearly deaf, and a rare disorder of the nervous system limited her mobility. But she could still make her way to the bank and take her wash to a local laundromat.
"She was managing," said Alice Wilson, a neighbor for more than 30 years. "She's a self-sufficient person."
As Jones' conservator, Scott took over her checking account and put her on an allowance, initially $50 every two weeks.
Scott started making improvements to Jones' pale stucco home, installing central air conditioning, a new refrigerator and a washer and dryer. Scott paid her own sister $1,550 to paint the house.
It pained Jones to see someone else spending her money. So frugal that she still has a red-knit sweater she wore 60 years ago, she even complained when Scott billed her $40 for a Christmas tree. The plastic one in her garage would have done just fine, Jones said.
Decisions about her medical care were another source of contention.
Scott said in court papers that, months after becoming her conservator, she received medical records indicating that Jones had once been diagnosed with schizophrenia.
Scott's staff began taking Jones to a psychiatrist. He prescribed Zyprexa, a drug used to treat schizophrenia and bipolar disorder. Jones refused to take it, saying she did not have either condition.
An aide hired by Scott, Gerlie Kirbac, said one of the conservator's subordinates told her to crush the drug into Jones' food, but she refused.
Kirbac said she also took Jones to the bank so she could check on her money and was fired for it.
"Melodie told me I can't handle Helen," she said. "I said, 'What kind of handle do you want?' "
Scott, 47, whose conservatorship business is the largest in the Inland Empire, said she could not discuss the case because Jones' medical history is private and her complaints are the subject of litigation.
"It would be horribly unethical to breach Mrs. Jones' dignity and right to confidentiality," Scott said in a statement.
In her most recent court filing, a routine list of bills and fees, Scott described Jones as "alert, conversant, obstinate, independent and often paranoid."
She also said Jones suffered from schizophrenia.
Carefully annotating her own copy of the report, Jones circled "schizophrenia" and wrote a comment in the margin: "BS."
Early this year, as Jones struggled to reclaim her independence, she lost her younger brother, Frank Janicek.
He was her last bit of family, her Sunday telephone call. A former Douglas Aircraft worker who served in Africa during World War II, Janicek died of pneumonia in January at 85.
Jones wanted him to have a traditional burial. An earlier experience had left her strongly opposed to cremation.
But upon learning that Jones had a conservator, the funeral home called Scott, who made arrangements for the disposal of Janicek's remains.
In March, a caretaker drove Jones to Riverside National Cemetery, then pushed her wheelchair to a shelter about the size of a bus stop. A bugler played taps. Two women in dress uniform folded an American flag and presented it to Jones.
She was pleased to see her brother put to rest with military honors.
But she noticed that there was no coffin.
Instead, there was a brass urn containing Janicek's ashes.
Rise of a Profession
The concept of conservatorship dates back at least to medieval England, where guardians were appointed to manage the property of people deemed "lunatic."
In the U.S., California stood for decades as the model for a humane system. The state pioneered legislation in the 1960s and '70s to protect against arbitrary or needless conservatorships. Adults were guaranteed advance notice of court hearings to appoint a conservator, along with legal representation and the right to a jury trial.
Lawmakers assumed the conservator would be a family member or friend.
In 1969, John M. Mills, an economics professor at El Camino College, rented a room in a downtown Los Angeles church and opened what is believed to have been the state's first conservatorship business.
Twenty years later, a court banished Mills from the trade after the state attorney general's office accused him of financial irregularities. By then, he had inspired many others to enter the field.
In most instances, loved ones still act as conservators for incapacitated old people. But professionals now handle about 15% of the cases in Southern California.
Although some have only a few clients, others run thriving businesses, managing the lives of more than 100 adults at once. An elite group focuses on wealthy seniors, employing large staffs and commanding rates of up to $135 an hour.
Conservators hold positions of trust on a par with lawyers, accountants and investment firms. In contrast with those professions, however, they don't have to earn degrees or pass licensing exams. Anyone with a clean felony record who pays a $385 state registration fee can go into the business.
Only now is the state moving to impose basic standards. Beginning next year, conservators will need a college degree, experience in the field or certain levels of training. Most current practitioners will not be affected, however.
Conservators find clients by sponsoring breakfasts at senior centers and networking at legal luncheons. Nursing homes call when residents become too addled to pay the rent, wanting a conservator to write checks for them. Hospitals call when patients have outlasted their insurance, hoping that a conservator will move them somewhere else.
Once conservators identify a prospect, they can go to court and initiate a case without the client's approval.
With rare exceptions, they look for people with money. Frumeh Labow, Los Angeles' busiest conservator, sets a minimum of $300,000 — enough to guarantee her paycheck for at least a few years, if the client lives that long.
Other conservators have a more modest threshold.
"If the person has six months, the doctor tells me she has terminal cancer and she only has $30,000, I'll take a chance on that," said Jeffrey Siegel, who runs a large Los Angeles practice.
In many cases, professional conservators have done admirable work. Some have saved seniors from con artists or thieving relatives. Others have ensured that lonely adults lived out their last days in dignity.
Many continue to serve clients after their money has run out.
"We're in this business to help people and to protect people," said Ron Patterson, a Bay Area conservator who is president of the Professional Fiduciary Assn. of California. "None of us are here, I believe, to enrich ourselves in any way except the natural way one does in business."
But even some conservators admit they would not want one themselves.
"I can decide who they see. I can put them in a nursing home," said Labow. "It's the biggest imposition on your civil liberties short of being imprisoned."
Quickly in Control
Professional conservators take over with jarring speed.
In many courtrooms, they get emergency appointments on the day they ask for them, based on short forms in which they swear that prospective clients cannot care for themselves.
These hasty hearings are meant for cases in which elderly people are in imminent danger. But professional conservators have made them the norm, The Times found. More than half of their Southern California cases began this way.
Adults are entitled by law to attend emergency hearings. Yet they were not formally notified in more than half the cases The Times examined. Often, judges dispensed with the requirement after conservators told them that prospective wards were too feeble to come to court.
By securing immediate appointments, professionals can gain control over elders before safeguards required in nonemergency cases kick in. For example, in nine of 10 emergency cases, wards were not interviewed by a court investigator before a judge decided they needed a conservator.
The events leading to Jones' conservatorship began in November 2002, when a chance acquaintance, Cindy Gurrola, gave her a ride to the bank. After Gurrola expressed concern for Jones' welfare, a bank employee gave her the business card of a Redlands company that serves the elderly.
Gurrola said she called the number and gave an employee Jones' address. There was no mention of conservatorship or that Jones would be giving up legal control of her affairs, Gurrola said.
About a week later, Jones said, she was napping in her home when a woman walked in and woke her. The woman said she was with "CARE." Jones said she thought that meant California Alternate Rates and Energy, Southern California Edison's reduced-rate program for seniors.
Jones signed a one-paragraph document, not bothering to read it.
In fact, the woman worked for Conservatorship and Resources for the Elderly Inc., the firm owned by Melodie Scott. The document said that Jones nominated Scott to be her conservator.
"I was sleeping here and someone tapped me on the shoulder and said sign this," Jones said. "And stupid, I signed it, not knowing what I was signing.
"To me, 'conserve' means to save and I thought this was a way of saving me money so I wouldn't have to pay utilities."
The nomination was dated Nov. 22. Eleven days later, Scott filed an emergency request to become Jones' conservator. She said Jones could not keep up with her bills, had a house full of clutter and could no longer manage "the activities of daily living."
Judge Phillip M. Morris granted the petition the next day.
After about a year, Jones decided to fight back. A bank clerk told her that she could not redeem a CD that had matured — only Scott could. Upset, Jones had her caregiver take her to see paralegal Barbara Seifritz at the Yucaipa Senior Center.
Jones appeared so clear-headed and well-informed that Seifritz was surprised to learn she was under conservatorship. So was Bob Roddick, Seifritz's boss at the nonprofit Inland Counties Legal Services.
At a hearing in March 2004, Roddick told Judge David A. Williams that Jones did not need a conservator.
"She seems perfectly capable of taking care of herself," Roddick said.
"Well, we already have a conservatorship," the judge replied.
"I have it, but I would like to terminate it," Jones told him, confiding her worry that Scott was draining the savings it had taken her 60 years to build.
The judge could have ended her conservatorship on the spot or directed his staff to investigate. He did neither.
He appointed an attorney to review the handling of Jones' finances, but left her in Scott's hands.
By then, Jones had gotten a look at Scott's expense records and saw that her money was going out nearly three times as fast as it was coming in. Scott's firm is spending Jones' money at a rate of $84,000 a year, records show. Her income is about $27,000 a year.
At a hearing in August 2004, court-appointed attorney Donnasue Ortiz challenged the conservator's fees and spending as "excessive."
Scott sought to justify the expenses by saying that Jones was "near death" when she intervened. She told the court that Jones had left a convalescent home "against medical advice," that she was "totally dehydrated and malnourished" and that her garage harbored "thousands of rats," prompting complaints from neighbors.
Jones called Scott's description "one big fabrication." She said that she spent several days in a nursing facility after suffering a fall in October 2002 but that a social worker signed her out, saying she did not need to be there. Two friends who drove her home corroborated her account.
As for rats, three of Jones' neighbors said in interviews that they never saw or complained about any.
In July, with the conservatorship still in place, a frustrated Roddick filed a petition to end it. A judge refused to hear his arguments, saying he had no standing to intervene.
The judge scheduled a hearing for Dec. 2 at which Jones will be represented by Ortiz.
"I don't know how this is going to turn out," Jones said outside the courtroom. "My age is against me and my hearing is against me."
'Chewing Up Estates'
From the moment seniors are entrusted to a professional conservator, the meter is running.
The law allows conservators to spend their wards' money as they see fit and requires them to submit periodic reports. Courts must approve their fees, but state law sets no limit on their compensation beyond that it be "reasonable."
Reports examined by The Times show that conservators have billed elderly people for what one described as "drive-by" property inspections and for moving furniture around a room.
Frances Dell, 90, paid her conservator $715 for accompanying her to parties and informing her that her favorite niece had died, among other services. "She needed someone to cry with and mourn her own mortality," the conservator wrote in her bill.
Seniors often pay for layers of helpers hired by their conservators — property managers, home-care supervisors, case managers and more. They pay for flowers, chocolates and other gifts that conservators give them on special occasions.
Among the Christmas presents one woman unwittingly lavished on herself: men's cologne and a stocking with her name embroidered on it, misspelled.
"The word is conserve. You're supposed to conserve people's estates," La Mesa probate attorney Richard Schwering said. "Conservatorship is chewing up estates."
The bills pile up even faster when seniors or their families challenge conservators' control.
Wards pay their conservators' legal bills on top of their own because the court does not consider the parties to be adversaries. Even when conservators oppose their clients' wishes, they are assumed to be looking out for their best interests.
Street-smart and self-made, Charles Thomas built an $18-million empire by investing in Burger King franchises and real estate in some of Los Angeles' toughest neighborhoods. After he was diagnosed with Parkinson's-like symptoms, it became clear he would have to hand over the reins of his businesses.
Thomas had a complex family, with children from several marriages. He picked an outsider — Labow — to be conservator of his estate.
She was appointed in September 1998. Just over a year later, Thomas told his court-appointed counsel that he "wanted Frumeh Labow out of my life."
Labow refused to go, saying Thomas had chosen her before his illness clouded his judgment.
After five years, Labow remained in charge. Thomas had paid $1.1 million in fees to her, the lawyers his relatives had hired to oust her, and the six attorneys Labow had hired to fend them off and manage his holdings.
Suffering from aphasia, Thomas, 70, is no longer able to speak for himself. His family has come to accept that Labow will be a permanent presence in their lives.
"You can't fight them if they're using his money to fight you," said his son, Michael.
'Sarah Could Be Trusted'
Court-sanctioned fees are the only compensation to which conservators are entitled for managing the affairs of their clients.
The Times found at least 50 instances in which conservators used their authority over seniors' assets to benefit themselves or their friends, relatives or employers in other ways. Courts approved many of their actions, though often with incomplete information.
A Sacramento conservator hired his live-in girlfriend's firm to auction off his wards' possessions and sell their houses. A San Francisco conservator decorated his apartment with a client's valuable Chinese paintings.
Melodie Scott acknowledges that she let another professional conservator, Sarah Kerley, live rent-free in a client's house in Glendale for months. Kerley was married to Scott's brother at the time.
Scott did not disclose their relationship in her reports to the court. In an interview, she said the three-bedroom, Spanish-style house was in poor condition and that Kerley made repairs in lieu of paying rent and, later on, in exchange for reduced rent.
Scott said she did what she thought was best for the client, Jeanne Ledingham.
"There was no intention ever to take advantage of Ms. Ledingham to the benefit of Sarah Kerley or myself," Scott said. "I thought I was being a hero…. This charming little house, this beautiful garden — Sarah could be trusted."
While Kerley was living there, Ledingham paid the utility bills, as well as thousands of dollars to a gardener and a property manager hired by Scott.
Ledingham, who suffered from bipolar disorder, was 51 when Scott took control of her affairs. Scott moved her into a board-and-care and, later, an apartment while Kerley lived in her house.
Ledingham's daughter, a sophomore at a Louisiana college when the conservatorship began, said she was appalled by what happened.
"There were all these people — conservators, attorneys, judges," said Candace Ledingham-Ramos. "No one was looking out for my mother."
Marin Support Services for Elders, a nonprofit group for seniors, was supposed to look out for Florry Fairfield.
Fairfield, a retired real estate agent who had never married, lived with her miniature schnauzer, Daisy, in the quiet Bay Area suburb of Fairfax.
Anne Smith, then director of Marin Support Services, became Fairfield's conservator in March 2001 after telling a court that Alzheimer's-type dementia had left her "clearly unable to handle her affairs or resist undue influence."
Less than a month later, Fairfield, then 82, signed a new will. It was drafted by the lawyer representing Marin Support Services in the conservatorship case.
The will made the organization the main beneficiary of Fairfield's $1.1-million estate and named Smith co-executor.
California law bars professional conservators from inheriting from their wards in such circumstances unless the will was reviewed by an independent attorney or a court. There is no evidence that either step was taken in Fairfield's case.
The law clearly applies to individual conservators. It is unclear whether it applies in this instance because the beneficiary of the will was Marin Support Services, not Smith. Still, experts said, neither conservators nor their employers should become their clients' heirs because it creates a conflict of interest.
"What incentive do they have then to keep the client alive?" said Mitchell Karasov, the elder-law attorney. Every penny spent on the ward's care would reduce the conservator's bequest, he said.
William Kuhns, the lawyer for Marin Support Services, said he drew up the will at Fairfield's request. She decided on her own how to divide her wealth, he said.
"Maybe it gives you the appearance of a conflict of interest, but I've been an attorney for many years, and I'm very comfortable that this was in accordance with her wishes," said Kuhns.
Kuhns collected more than $36,000 for his work on Fairfield's conservatorship and estate.
Four weeks after Fairfield signed the will, a judge deemed her dementia severe enough to disqualify her from voting.
Asked how Fairfield could be too demented to vote, yet able to divide a million-dollar estate, Smith said she could not comment, citing concern for Fairfield's privacy. Speaking generally, she said that people suffering from dementia could still possess the mental soundness to make such decisions.
"Dementia is not a black-and-white disease," Smith said. "People can be very clear about some things and very confused about others."
When Fairfield died, Marin Support Services inherited more than $675,000.
'Lurking in the Shadows'
Even elderly people who have organized their affairs in advance can be pulled into this broken system.
Robert Mushet thought his mother was set.
Dorothy Mushet had signed papers designating her son, then an engineer with Boeing, to make decisions for her if need be. When she began to show signs of dementia, he arranged for her medical care and managed the money she had inherited from his father and earned as a saleswoman for Joseph Magnin Co.
Then, in September 2002, Robert got a call from his mother's nursing home. A Santa Barbara court, he learned, had appointed a professional conservator for Dorothy, then 94.
"I hung up the phone and darn near collapsed," Robert recalled.
His estranged daughter had petitioned for a conservator, saying he had moved Dorothy to the nursing home against her will. The daughter nominated Suzanne McNeely, a leading Santa Barbara conservator. Robert said he moved his mother because it was dangerous for her to live at home in her weakened state.
With court permission, McNeely moved Dorothy Mushet back into her house and hired her own firm to provide round-the-clock aides for four months, for which she later tried to charge $68,000.
Robert ultimately persuaded a court to make him his mother's conservator, as she had wanted, and to cut McNeely's total bill from $80,600 to about $24,000.
"You brought a matter to court that shouldn't even have come here," Judge J. William McLafferty told McNeely and her attorney.
Though victorious, Robert Mushet said he ran up $50,000 in legal fees. McNeely appealed the judge's reduction in her fee, ultimately settling for a $5,000 increase.
Dorothy died in March 2003. Her son said he felt strangely grateful to her disease for shielding her from the nasty tug of war that poisoned her final months.
"It would've killed my mom if she knew anything about this," he said.
Gerardine Brown, a state parole officer, had little notion what conservatorship was until she retrieved a letter from her mailbox one night in May 2000.
It said a stranger had asked to become her 86-year-old mother's conservator. A judge was set to hear the case 12 hours later in Los Angeles — 375 miles from Brown's home outside Sacramento.
Brown got into her car and sped south, driving through the night. "I didn't have time to hire an attorney," she said. "I'm standing there in front of the judge with no idea of what I'm going to face."
Brown's mother, Charlotte Shelton, was a retired biochemist whose work for the Navy broke ground for a woman of her era. Brown — her only child — said she called Shelton regularly, trying to persuade her to move closer to her remaining family as her health failed. Shelton clung stubbornly to her home in Eagle Rock.
Sarah Kerley, the same conservator Scott had let live in a client's house, told the court that Shelton's doctor had asked her to step in. Kerley arranged for a psychiatric evaluation that led to Shelton's involuntary hospitalization in a mental ward. Then Kerley filed papers to become her conservator.
The judge appointed Kerley temporarily while a court-appointed attorney assessed Shelton's condition. The attorney reported three weeks later that he saw no reason why Brown should not assume responsibility for her mother, as long as she did not move her from Southern California. When the judge approved the change, Brown figured the conservator was gone.
Not so. Kerley fought for a continuing role in Shelton's life, challenging Brown on who should pick her mother's doctors and who should be her permanent conservator.
Eventually, Brown said, she agreed that her mother would pay Kerley's fees and those of her attorney if Kerley would stay out of the family's affairs. Just as the settlement was being finalized, Shelton died.
The conservator and her attorney later collected almost $18,000 from Shelton's estate.
Kerley did not respond to requests for comment.
"These people are just lurking in the shadows," Brown said. "It's just chilling to think it can happen to anybody."
Postier vs. Marshall
Over 13 days beginning in September 2002, the rarest of scenes played out in a San Jose courtroom.
Lawyers for an elderly woman named Ruth Postier took a professional conservator to trial, accusing him of violating her rights and wasting her money.
Russell Marshall, a well-known Santa Clara County conservator, had secured an emergency appointment to look after Postier, then 77, and her husband, Ed, 80, in August 2000.
Until then, the Postiers had eked by, relying on friends for help. Married since they were teenagers, they had no children or surviving close relatives. They had only Social Security for income, having exhausted their savings from an upholstery business.
Their house was their one real asset, worth more than $500,000 despite its crumbling roof and exposed wiring. It held decades of memories, including a wall of ribbons won by Stardust, their champion Doberman.
In the eight months that Marshall was their conservator, the Postiers chafed at his authority.
After Ed allegedly threatened Ruth during an argument, Marshall moved him into a locked nursing home without the necessary court permission. He later moved the Postiers into separate apartments in an assisted-living complex and put their home up for sale.
Marshall also exhausted their meager resources, incurring more than $50,000 in unpaid bills. He hired a family therapist, paying her $65 an hour not only to counsel the couple, but also to shop for pillowcases, wastebaskets and other household items.
After two months, a court investigator came to check on the Postiers. They complained bitterly about Marshall. Public Defender Malorie Street was assigned to represent the couple and objected when the conservator asked to have his temporary control over their affairs made permanent.
Marshall, in an interview, defended his conduct.
"They wanted me to be their conservator because they wanted to move," he said. He said he had planned the Postiers' expenses carefully and would not have run up debts if Street's opposition had not delayed his efforts to sell their house.
In April 2001, Ed died and the county public guardian took responsibility for Ruth.
After Marshall submitted his final report, Street demanded that the court sanction him for abusing her clients.
When the matter went to trial, a videotape deposition Ruth had given months earlier was shown in court. She could not testify in person, having suffered a stroke that left her speech almost unintelligible. Instead, her worn face appeared on a TV screen, oxygen lines running from her nose.
"Did you want Ms. Street to sue Russell Marshall?" the conservator's attorney asked her.
"Well, he sure didn't do right by me," Postier replied. "He made a mess of my life."
She described how the conservator began removing her belongings from the house as she ate dinner one night.
"Just hauled it out, whether I liked it or not," she said.
Postier said she had never wanted to leave the home she had shared with her husband for so many years. Though they argued often, she once told a friend she wanted their headstone to say, "Ruth and Ed Postier, Together Forever."
She raised trembling, papery hands over her eyes.
"I went through hell," she said.
Superior Court Judge Thomas Hansen found that Marshall had increased the Postiers' indebtedness and moved Ed without proper authority. Nonetheless, he decided Marshall's conduct did not constitute elder abuse.
Hansen awarded Ruth nominal damages of $1, saying it was impossible to measure monetarily what harm, if any, Marshall's actions had caused her.
The judge awarded Marshall and his legal team $75,000. Later, Postier's own lawyers collected more than double that amount, swallowing what was left of her estate.
Street came away stunned.
"That case sent me around the bend," she said. "The statutes designed to protect my clients didn't."
Shortly before Ruth Postier died on May 29, 2003, her caretakers deposited Marshall's check to her.
It was for $1.02.
Damages plus interest.
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