Charisse Anderson, former assistant director of California’s largest long-term care advocacy program, on probate judges failing to protect elder abuse victims
I am writing regarding the legal and judicial access of disabled and impoverished seniors and dependent adults in California. I have had both professional and personal experiences with the subject matter at hand.
I had the oversight responsibility for the state’s largest nursing home and licensed board and care advocacy project for over six years as the former assistant director of the WISE Senior Services’ Long-Term Care Ombudsman Program, located in Santa Monica, California. In addition, in the early 1990s, I served with a group to develop and create the Fiduciary Abuse Specialist Team (FAST). The team consisted of experts in the professions of the judiciary, law, medicine, social services, state licensing agencies, and other expert disciplines. The team met on a monthly basis to dissect cases, provide attentive resolution, and develop strategies to heighten awareness to the complexities of the taboo subject of elder and dependent adult abuse with an emphasis on fiduciary. Elder law attorney Marc Hankin was another member of the development team, a longtime, leading advocate for the elderly and author of California’s Elder Abuse and Dependent Adult Civil Protection Act (EADACPA). Another emphasis of the disciplinary team was to unite all of the avenues of support systems and service entities to provide access and resolution for the poor and elderly.
When my great-aunt named Audrey Leoma Burnett passed away, I personally experienced disfranchisement of the probate courts. The decedent had created a living trust establishing her sister Lillie Mae Turner Henderson (my other great-aunt) as the trustee, and I was the sole beneficiary. The decedent’s estate was very modest, including a home, automobile, small bank account, and possible retirement and insurance benefits. I engaged the services of Mr. Hankin after several months of non-cooperation with my surviving great-aunt Lillie Mae, the appointed trustee who refused to execute her trustee duties and either disburse the property or initiate the formal probate proceedings. Mr. Hankin initially made several telephone calls and wrote letters to the trustee in an effort to amicably resolve the matter. He explained to her both orally and in writing the legalities of her duties and the consequences of her actions if all of this were brought to court. When Lillie Mae continued to make false promises, Mr. Hankin proceeded to prepare a petition for filing with the probate court to have her removed as the first successor trustee and to compel a final accounting. The probate court continued the hearing either on its own initiative or at the request of the trustee for over one year, despite Mr. Hankin’s requests on at least three occasions before the judge.
Mr. Hankin also made several other appearances on my behalf in the interim to seek a preliminary injunction to protect the assets (known and unknown). The probate court again rescheduled several hearings and each time still refused to rule or respond to the arguments set forth by Mr. Hankin because the probate judge seemed agitated with my counsel.
The court then ordered a PVP attorney to review the case to provide the court with its independent findings and recommendation for final ruling. In the meantime, Mr. Hankin had filed an order to show cause (OSC) regarding contempt against the trustee for refusing to legally adhere to any mandates, willfully failing to provide an accounting, and failing to cooperate with the court, PVP attorney, and opposing counsel. The PVP attorney assigned likewise never got any cooperation from the trustee and had to rely on information provided by Mr. Hankin to present its findings and recommendations. The court refused to entertain my counsel’s request for the court to sanction the defendant, Lillie Mae Turner Henderson, for legal fees and costs due to her willful failure to cooperate and the court’s unexplainable continuances. In the end, the assets mysteriously dissipated by the time the court definitively ruled on the order for the final accounting based solely on the PVP attorney’s findings.
The court never did sanction the original trustee, Lillie Mae Turner Henderson, for her failure to make any accounting to the court. The court never did find the trustee in contempt of the court’s order. Instead, the court seemed to display an attitude of indifference. On one particular occasion towards the end, the judge, with a scowl, summarily ruled that the trustee should be responsible for the legal fees of the PVP attorney but should not be responsible for the fees of my counsel, despite the necessity for bringing the formal action and all of the delays being attributable to the trustee’s lack of cooperation. Finally, when Mr. Hankin reminded the court of the obstinacy of the trustee and his previous petition to the court seeking an order for the trustee to pay for my counsel’s legal fees, the court dismissed Mr. Hankin’s request and told him that he would have to file a civil case.
It was my recollection that most of the hearings were before [Los Angeles County Superior Court] Judge Thomas W. Stoever and Judge Gary Klausner. I questioned the necessity to continue and belabor the matter for so long. It caused a lot of hardship for my attendance at all of the hearings, not to mention the out-of-pocket costs for which I never did receive any benefit or distribution from the trust. Each day that a hearing was scheduled, I would arrive at the court before the morning adjournment and observe the handling of other pending matters. It seemed that the courts were becoming increasingly hostile and short-tempered with all of the pro per parties and cases involving modest assets or indigents.
I felt very chagrined with the judges in the probate court because they did not really seem to care about the financial hardship that my counsel and I endured with the ongoing continuances and refusal of the court to expeditiously rule on matters presented that could have saved the court time and protected the assets. I witnessed several other individuals bring similar matters to the probate court, and they were also summarily dismissed or confronted with an annoyed and impatient court, while the pending cases that had substantial fortunes and high-profile legal representation received favorable attention including impromptu motions and hearings.
It is my opinion that the courts have scoffed and imposed significant barriers to impede cases of elder and dependent adult abuse or probate matters where the parties are indigent or have modest dollars but nevertheless need legal access and representation. The legal system, including attorneys and the probate courts, should be accessible to everyone. In addition, the courts need to be more responsive to adjudicate all matters with fair reasoning and prompt deliberation to streamline the court calendars.
Therefore, I personally urge the California Legislature to listen and seek some viable solutions that can bring about equity in the legal system for the needy and the elderly. Democracy requires a proper system of checks and balances. The probate courts were originally created to operate like courts in equity, and they should not be allowed to have unfettered discretion to disregard the needs of have-nots and give preferential treatment to individuals and cases that have big dollars and notoriety.
[Written by Charisse L. Anderson, who had oversight responsibility for California’s largest nursing home and licensed board and care advocacy project for over six years as the former assistant director of WISE Senior Services’ Long-Term Care Ombudsman Program, located in Santa Monica, California.]