Family Feud: Probate Court Battles Often Leave Loved Ones With Nothing
In October 2007, Willie Jo Mills of Houston suffered a stroke that paralyzed the right side of her body. A widow with two daughters and a son, the 80-year-old woman was prescribed a variety of pain medications, but doctors couldn't find the right cocktail.
Six months later, Mills' son Larry filed an application with the Harris County Probate Court to become his mom's legal guardian. Mills' youngest daughter, Sherry Johnston, who wasn't getting along with Larry, contested her brother's guardianship request. With the case at a standstill, Judge Christine Riddle Butts, one of the newest of Harris County's four elected probate judges, selected the third-party guardians David R. Dexel, a Houston-based attorney, and Ginger Lott, a certified guardian in Texas, as Mills' legal caretakers.
Johnston says that's when the family's five-year horror began.
According to documents filed with the Harris County Probate Court, Johnston alleges her mother was miserable and overmedicated and shriveled to 89 pounds while under the care of the court-appointed guardians. "She looked like a concentration camp victim," says Johnston, who adds that she was barred from visiting her mother at Silverado Kingwood Memory Care Community after she complained about the lack of attention paid to her mom.
Following her complaint to the court, Johnston was allowed to visit with her mother. In the next six months, she put 30 pounds on her mother, but Mills eventually moved to hospice and died on September 27, 2014, at the age of 86. Johnston thinks the treatment by the third-party guardians is part of the reason her mother stopped talking the last four months of her life.
"[Probate court] isn't about protection or appointing someone to act in the best interest of a person. It's about ownership of a human being and all their assets. It's starting to look like they're running a business rather than taking care of elderly people," says Debby Valdez, president of the San Antonio-based Guardianship Reform Advocates for the Disabled and Elderly.
By law, a person in the clutches of a guardianship loses his basic rights such as the ability to drive, spend money, marry, choose a place to live and make medical decisions for himself. Instead, the bill of rights is transferred to the appointed guardian.
A professional caretaker through a county guardianship program, or a certified — or even uncertified — guardian such as a private lawyer can carry out a court-appointed guardianship, which dissolves a previous power of attorney that a relative may have obtained. (The Texas Judicial Branch Certification Commission requires the completion of a four-hour course to become a certified guardian. Until recently, it had been only three hours.)
Before he became the legal guardian for his mother, Olga, Gregory DeFrancesco, a retired Houston Police Department sergeant, had been fighting a grueling guardianship battle in Harris County Probate Court.
In July 2012, Judge Loyd Wright of Harris County Probate Court No. 1 appointed Dexel to take care of the now 88-year-old woman's affairs. The court became involved because Gregory and his sister Donna couldn't agree on specifics regarding their mother's care (or anything else, for that matter).
According to a complaint filed by Donna with the State Bar of Texas' Chief Disciplinary Council, after Dexel sold Olga's house, Dexel hawked her belongings in a poorly run sale. Sentimental possessions, such as their grandmother's rocking chair and a piece of jewelry that contained their father's ashes, were sold before Gregory and Donna had a chance to run over and rescue the items.
The barely legible, hand-scrawled itemized receipt looks as if a 6-year-old kid had run the sale. Purchased items include "crystol plate" for $7, "3 oval" for $5 and "sieve," "foil," "napkin hold" and "SS gravy body" for $1 apiece. One of the few items that didn't sell was an X-ray of Olga's shoulder, which Gregory found with a $3 price sticker slapped on it, according to Gregory's complaint with the State Bar of Texas.
When Gregory confronted Dexel, who didn't respond to a Houston Press (the Observer's sister paper) interview request, about the X-ray that also listed Olga's date of birth and Social Security number, "He told me that they tried to sell it so that parents could teach their children how to play doctor."
A month after Gregory usurped Dexel as his mother's guardian, Donna's State Bar of Texas complaint alleges, Dexel withdrew $16,340.18 from Olga's Wells Fargo account (because he was still listed as a co-signer) and made out a cashier's check payable to himself, according to a bank statement and check image examined by the Press. The withdrawal took Olga's account down to a big fat $0.
"The whole system is rigged. It's one big scam," Gregory says about Harris County Probate Court, which critics allege is a corrupt, freewheeling operation that allows judges' favorite appointees, who are also close friends and campaign donors, to bleed the estates of the helpless and vulnerable. Naysayers of court-appointed guardians believe that attorneys prey on family drama to charge astronomical fees and that judges aren't doing enough to stop them.
Even though probate law is a complicated field that requires specialized attorneys, only 20 of the judges in Texas' 254 counties have legal-studies degrees and professional law experience, according to Wood, who's in charge of Harris County Probate Court No. 2. "The rest are farmers, car dealers and insurance salesmen, so probate law is written to be run by non-lawyers," says Wood. Travis County Probate Court Judge Guy Herman, one of Texas' presiding state statutory probate judges, adds, "Non-lawyer judges sometimes don't seem to know or understand their duties and obligations" because of a lack of resources in rural areas.
Unlike probate courts out in the sticks, Harris County's four probate judges and Herman think that statutory probate courts in Texas' resource-rich metropolitan areas — which include Bexar, Collin, Dallas, Denton, El Paso, Galveston, Harris, Hidalgo, Tarrant and Travis counties — are well-oiled machines. Herman, who has been a point person for probate legislation since 1985, says Texas' revamping of probate statutes in 1993 brought kudos from other states.
"The system is geared to help people," says Wright. "Sometimes things aren't fixable when there's dysfunction and family animosity."
Herman couldn't agree more. "The driver of the expense is a family feud and the children who are arguing about who should be the guardian. There's not a single judge that likes these fights. It's wasting the family's money," says Herman, who adds, "I don't think judges are sitting around trying to be corrupt."
However, state lawmakers thought something was awry during the 2015 Texas legislative session because Governor Greg Abbott signed yet another try at legislation designed to help families in guardianship proceedings.
"We need some sort of oversight of these court appointees, because right now, I don't know of any," says state Senator Judith Zaffirini, a Democrat from Laredo who sponsored or co-sponsored several guardianship bills.
Harris County's four probate judges and Travis County's Herman aren't thrilled with many of the new laws, which force more accountability on the judges and go into effect September 1.
Texas Supreme Court Chief Justice Nathan Hecht says there's one bulletproof way to avoid potential probate court messes. During a hearing for the eventually inked House Bill 39, which will provide families with less-restrictive alternatives to guardianships, Zaffirini asked Hecht for probate court and guardianship avoidance techniques.
His response: Get along with your family members.
Good luck with that.
Before dying last fall, Willie Jo Mills suffered miserably under the care of two different court-appointed, third-party guardians, according to her daughter Sherry Johnston. One of her caretakers is currently under investigation by the Houston Police Department and the Federal Bureau of Investigation.
Photos courtesy of Sherry Johnston
For some families, the alleged physical and emotional abuse hurled at ailing parents by court-appointed caretakers is worse than the money drain.
Shortly after Dexel sent Olga DeFrancesco to a nursing home, she broke her hand and cracked her pelvis after falling several times. According to the complaint filed with the State Bar of Texas' Disciplinary Council, Gregory and Donna say that Dexel and some of the nursing home's staff ignored their mother's injuries for weeks and that they couldn't get any information about her condition because Dexel cut off their visitation privileges. Gregory says, "How can I carry a gun but not take care of my mother?"
Probate court deals with some of society's most vulnerable people, such as widows, orphans, the clinically insane and people who are far gone on drugs or alcohol. Along with administering the estates of the deceased, Texas' probate courts establish guardianships for the incapacitated and minors when the next of kin are unable or unwilling to care for their physically or mentally diminished family members.
Once a probate judge signs an order that a ward (the term probate court uses for people in guardianships) is incapacitated, that person is pretty much helpless. "In fact, they lose more rights than somebody who goes to prison," Tarrant County Probate Court Judge Steve King said during a recent Al Jazeera America investigation into guardianship abuses in Texas.
"They become civilly dead in the eyes of the law. There are too many cases where there's a knock on the door and they never go home again," says Valdez, who adds that once a ward is whisked into a guardianship, it's nearly impossible for him to get out. She says families are blindsided in probate court by the head-spinning legalese and probate statutes.
According to May 2015 Texas Office of Court Administration figures provided by Herman's staff, 51,646 Texas residents are locked into guardianships, with 8,206 coming from Harris County and 4,188 in Dallas County. Overall, according to the Texas Judicial Council, the number of Texans in guardianships has increased by 60 percent since 2011.
Most probate cases are unremarkable, with near-penniless estates or some beat-up furniture at stake. Harris County Probate Judge Mike Wood says fees in low-level heirships and guardianships total less than $1,000.
But when it's sibling vs. sibling and there's money involved, watch out.
"Probate court exists because of one of the seven deadly sins: greed," Wood says. In other words, when a surviving parent becomes unable to care for himself, family members can turn into backstabbing devil people with dollar signs for eyes.
Even if a parent isn't incapacitated, a predatory son or daughter — or a money-hungry sister-in-law — will do anything possible to trick poor old Mom or Dad into a guardianship. And that plan sometimes backfires.
In July 2014, Rodney Elliott of Dallas allegedly "tricked" his mother, Patricia Elliott, into a nursing home, according to Dallas County Probate Court documents. The now 84-year-old woman, whose estate was valued at approximately $900,000, says in court documents that she thought her "son has put her here for her money." (Patricia didn't return the Press' phone messages. We also tried to reach Rodney through his lawyers at the Plano-based Lori A. Leu & Associates, but we never heard back.)
According to legal documents, Dallas County Probate Court Judge Brenda Thompson assigned a guardian ad litem, often an attorney who's supposed to protect a proposed ward's best interests, and an attorney ad litem, who's a licensed lawyer for a proposed ward. In nine months, lawyers racked up more than $38,000 in fees, which were paid out of Patricia's estate.
Additionally, Thompson appointed the Dallas-based in-home health-care provider The Senior Source as Patricia's permanent guardian, according to an April 2015 court filing. The pricey service continues to deplete the woman's life savings as well as her children's future inheritances.
"The third parties go over the kids' heads and come after the money," says Gene Robinson, Patricia's neighbor of 25 years, who was the widow's durable power of attorney until the guardianship application rendered his legal powers moot. "She's disheartened, depressed and traumatized that her family did this to her."
In recent years, critics allege, a growing cottage industry of attorneys who lack guardianship acumen have forced elderly people into nursing homes and drained families of their estates. A number of these private lawyers conduct business through post-office box mailing addresses and generic email domains such as Yahoo!
"Instead of making a decision, [a probate judge] appoints all of these attorneys to represent the proposed ward, and the financial incentive is to the court-appointed attorneys and guardians, who then spend a lot of dollars out of the elderly person's money," says Valdez. "In this business, everybody protects everybody. There's too much cronyism and nepotism going on with these appointments."
Butts, who's in charge of Harris County Probate Court No. 4, admits that she chooses some attorneys who contributed money to her election campaigns, but says that's because she built a network of trustworthy professionals while in private law practice from 1996 to 2010.
"I generally know the people [who contributed campaign funds], but I don't specifically remember the amounts," says Butts. "I know the attorneys very well professionally, not personally." According to a review of campaign finance reports, Dexel donated to Butts' 2014 re-election campaign and to Wright's 2010 and 2014 campaigns. Harris County's four probate judges, who serve four-year terms, take home an annual salary of at least $144,000 each.
Butts adds that she sometimes has no choice but to appoint a guardian whom she knows because there's only a minuscule pool of qualified candidates. "In Harris County, the probate bar is very small and the number of people willing to serve is very small," says Butts. "We're so deeply invested in the care of a relative, but there are some things that a layperson might not understand. Sometimes people have a hard time accepting that death is a long, hard process."
A lifelong sibling rivalry between Olga DeFrancesco’s daughter Donna (right) and her son Gregory forced the 88-year-old woman into a guardianship in Harris County Probate Court.
Lily May Mason is a persnickety 92-year-old woman who survived heavy World War II bombing of her hometown of Bristol, England. During the war, she met the Liberty, Texas-born Leonard Mason, a U.S. Army soldier who family members say received a bronze star for his role in the Normandy invasion. When Leonard asked for Lily's hand, he bribed Lily's parents with eggs and butter.
After the war, the couple settled in the Houston area, where Leonard worked as a chemical engineer. When Leonard died in 1992, he left the entire $1.5 million estate to Lily and not to their daughters, Elizabeth Mason Bray and Linda Mason Phelan, who are estranged from one another.
According to Harris County Probate Court documents, Lily managed just fine on her own until 2013, when Baylor College of Medicine doctors diagnosed her with Alzheimer's. In 2014, Lily officially became incapacitated in the eyes of medical professionals and probate court officials, and all hell broke loose between the sisters, says Elizabeth. (Linda didn't return a voice message seeking comment.)
After a Texas A&M football game last fall, Linda took their mother to the office of Carl Pickett, an attorney and the mayor of Liberty. Linda and Pickett, who Elizabeth says are lifelong friends who trust one another, allegedly coaxed a confused Lily into signing a paper that removed Lily's power of attorney and medical power of attorney from Elizabeth and disqualified her as a guardian. "Because of Lily's impaired eyesight and hearing," writes Elizabeth in court documents, "I became very concerned that she was not properly informed of her actions or the impact of her signature on these documents."
And just like that, her rights were turned over to Judge Rory Olsen and Harris County Probate Court No. 3.
"An allegation can change everything in an elderly person's life," says Valdez, the San Antonio-based disability rights advocate. "Probate court doesn't rule on clear and convincing evidence where a decision is made based on if it's better with the family or a third-party guardian. The person who's going to lose their rights isn't in the courtroom 90 percent of the time."
"It's a court that was established to handle the affairs of the dead, and this is exactly what happens in guardianships," adds Valdez. "People become property once state law strips them of all their civil, constitutional and human rights, all in the guise of protection."
The vast jurisdictions of Texas' statutory probate courts encompass decedents' estates (including wills, heirships and the appointment of executors and administrators), guardianships and trusts; the Harris County courts of Olsen and Butts are also in the mental-health business when they commit someone to an institution and force that person to take medication. Though the four Harris County courts are lumped under the same umbrella, they're independent entities with their own staffs and sometimes their own procedures.
Valdez thinks that an already troubled system began to nosedive in 2005 when the Texas Senate Health and Human Services Committee called for an emergency overhaul of Texas Adult Protective Services. In response, state lawmakers significantly altered probate codes, but instead of improving, according to Valdez, things got worse. Guardianship professionals were able to manipulate the laws to profit financially from sick, elderly people, says Valdez.
At the same time, Valdez says, the "lucrative business" of assisted-living facilities began to explode in order to house the country's aging population. As of 2012, there were approximately 44.7 million Americans aged 65 and older living in this country, according to U.S. Census Bureau numbers.
Currently, medical professionals are granted wide latitude in determining incapacitation, which is defined under Chapter XIII, Section 601 of the Texas Probate Code as the state of "an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for the individual's own physical health or to manage the individual's own financial affairs."
In a majority of Texas' counties with statutory probate courts, a standardized checklist determines if a person is incapacitated. But in El Paso County, a ward only needs to be found to have "diminished capacity" before landing in guardianship, making the subjective test even more of a potential crapshoot. Despite the definition of an incapacitated person in the probate code, there is not a state law that forces Texas probate courts to use that definition in their usual proceedings.
San Antonio-based author J. Kristi Hood has blogged about probate court issues in Texas for six years, and recently published Probate Pirates, a finger-pointing collection of news articles, resources and commentary. Hood says the impetus for the 280-page paperback was an all-out war with her brother.
"A family member had taken advantage of my 86-year-old father. The police and probate court would want to know," says Hood. "Probate court did not want to help. Probate court enabled my father's abuser at every turn."
The Illinois-based grassroots organization National Association to Stop Guardian Abuse documents nationwide cases of alleged guardianship abuse, including a 2012 incident involving a guardian of a Washington, D.C., woman who reportedly locked the refrigerator on the 91-year-old and would allow her to eat only in the presence of the third-party caretaker.
In 2009, reports WFTS-TV ABC in Tampa Bay, an Indianapolis man checked himself into the hospital after falling ill during a trip to Sarasota, Florida. Upon hearing the news, family members made a beeline from Indianapolis to pick up the man, a Holocaust survivor, and bring him home.
By the time they arrived, a Florida court had appointed a guardian, issued a "no contact order" and barred the family from seeing the man for three weeks. It took a year for court officials to grant the man's release from the guardianship program, and the affair erased more than a quarter of a million dollars of the man's savings.
One of the most egregious cases of guardianship abuse occurred in Ohio when a Franklin County grand jury indicted Columbus attorney Paul S. Kormanik on three felony charges of corruption and theft under Ohio's Racketeer Influenced and Corrupt Organizations Act.
According to legal documents, Kormanik, a court-appointed guardian for more than 400 people, swiped nearly $50,000 from four of his wards in five years. After Robert Hart died in 2012, Kormanik drained the dead man's account of $34,000 and deposited the dough into his personal checking account. Kormanik, who bragged to The Columbus Dispatch in 2014 that he was likely the guardian with the most wards in the country, faces up to four and a half years in prison.
Elizabeth Mason Bray says her mother, Lily Mason, was duped into signing away her legal rights by an estranged family member.
In August 2012, shortly after their father died, Donna DeFrancesco says, her brother Gregory filed an application behind her back to become their mother's legal guardian.
"I got a call from the lawyer asking me if I knew that I was supposed to appear in court," says Donna, who contested the guardianship application and hired an attorney. The court battle between the siblings grew longer — and more expensive — as each paid a torrent of attorneys' fees to fight the other.
In April 2013, Wright appointed an independent third-party guardian because Gregory and Donna weren't letting go of each others' throats.
Wright went with David Dexel. As Olga's caretaker from April 2013 to September 2014, Dexel depleted the old woman's savings of $99,600, according to allegations in a complaint the DeFrancescos filed with the State Bar of Texas.
In July 2013, Harris County Probate Court records show that Dexel sent an email explaining that he was going on vacation for a few weeks, and Gregory says Dexel charged his mother $175 to send that email. Butts, who works with Dexel, isn't buying that the attorney, who practices wills, trusts and probate law in Houston, would do such a thing. "I know David Dexel. He's a good man," Butts says. "I'd be very surprised if that was true."
According to the siblings, Dexel made visiting their mother in the assisted-living facility a miserable experience. After Donna brought food and a heating pad to her mom at Brookdale Cy-Fair Senior Living (formerly Emeritus at Cy Fair), privileges allowed by the nursing home, Dexel severely capped her visitation hours, says Donna.
In an October 9, 2013, letter acquired by the Houston Press, Dexel forbids Donna to talk to her mom on the phone and stipulates that "visits should occur in the public areas and not in her room unless the private sitter I have on duty is present."
"This current isolation of Olga, whether intentional or not, is unacceptable and beyond your authority as a guardian," writes Donna's attorney, Denyse Ward, to Dexel. "It is my understanding that there have been no incidents between my client and her brother that warrant such limitations. If we cannot reach a more workable solution, I will have no choice but to seek court involvement."
Dexel eventually caved. A camera-phone video shows Donna and Olga hugging and kissing each other at a Carrabba's restaurant after seeing each other for the first time in weeks.
Afterward, Donna and Gregory took a timeout from their brotherly and sisterly hate and curbed the bad blood. On September 11, 2014, after a prolonged fight in probate court, Gregory was appointed successor guardian for his mother.
Valdez thinks family guardians are held to higher standards compared with court-appointed guardians. For instance, if a family guardian misses the annual deadline for reporting the ward's assets and financial statements, the guardianship can be revoked. Valdez says the same heavy hand doesn't apply to probate court appointees. "I've never seen a judge protect a patient from a court-appointed attorney," she says.
In the case of Robert Litoff, a Bexar County probate judge overturned a jury's decision that originally favored Litoff, and forced the 70-year-old San Antonio man to fork over an immense chunk of his money to the losing side.
In October 2010, Litoff went from breaking a hip to a psychiatric hospital on orders from Kelly Cross, a temporary guardian appointed by the Bexar County probate courts. Though Litoff passed all psychiatric exams, court officials declared him incapacitated. Soon thereafter, according to legal documents, Cross, who became a Bexar County probate judge this year, created a $1,509,652 management trust account that promptly lost $112,028 on bad investments.
Litoff eventually found Dallas-based attorney Robert Wilson because Litoff says nobody in San Antonio would take his case. (Wilson didn't respond to requests for comment.) In September 2011, a Bexar County jury determined that Litoff wasn't incapacitated and awarded zilch to Cross' attorney, Christopher Heinrichs.
However, Heinrichs filed a motion to disregard the findings. Bexar County Probate Court Judge Polly Jackson Spencer overturned the jury's decision regarding Litoff's payment of attorney fees.
In the end, Heinrichs was awarded $52,000. Litoff says that Spencer's order would require him to pay Heinrichs $20,000 to appeal the ruling and another $20,000 if the case made it to the Texas Supreme Court.
"Making me pay lawyers who wanted to get me locked up for the rest of my life after they lost the case is like making an innocent man pay the DA's office after he was exonerated," says Litoff, who says that he lost close to $400,000 under the Bexar County Probate Court-initiated guardianship.
"If those lawyers know that they will get paid even if they lose, it encourages those lawyers to take any case in which they can get money from a senior citizen or similar person, regardless of the validity of the case."
During the 84th Texas legislative session this year, state Senator Zaffirini was able to push through 11 bills on guardianships and probate judiciary matters, including Senate Bill SB 1876 (co-sponsored by state Representative John Smithee), which requires judges to use a rotation system when appointing guardians ad litem, attorneys ad litem and mediators.
Valdez says that more progress on guardianship issues was made during the 2015 Legislature than in the three previous legislative sessions combined. Probate judges interviewed by the Press disagree with many of the changes.
For instance, Wood says that SB 1369, which will withhold grant funding if courts don't report appointee fees to the Office of Court Administration, isn't going to capture all lawyers' expenses. "If a private attorney files an application to become a guardian, the guardian has to get permission to hire them or another attorney as their attorney, but I don't appoint that other attorney, so those fees are never reported to anybody."
New laws aside, Gregory DeFrancesco says that if he had to do it all over again, he would never allow a third-party guardian to look after his mom. Now that the retired Houston police sergeant is living in the Albuquerque area, he and his sister have banded together so that the Houston-based Donna can become their mother's legal guardian.
However, Donna is in a battle with the Texas Department of Family and Protective Services to clear her name. According to the DeFrancescos, when their dad started to go downhill, Adult Protective Services concluded that Gregory and Donna were a threat to their parents based on the disgust the siblings had for each other.
"[Judge Wright's court] calls me for this hearing and that hearing knowing I can't be there. I'm concerned they'll take the guardianship away," says Gregory, who was able to get APS to drop its complaint against him. "Sibling rivalry is what they live for. That's their bread and butter."
Sherry Johnston has become a one-woman activist for exposing guardianship abuses since the death of her mother, Willie Jo. Even though she works graveyard shifts at a chemical plant near her home in Cleveland, she's often in Houston interviewing wards who have complained about their third-party guardian care (or lack thereof).
Two months after her mother's September 2014 death, Sherry posted a tribute video on YouTube with disturbing and heartbreaking images of her mom's physical deterioration, which Sherry says is the fault of the Harris County probate courts and the appointed caretakers.
On Mother's Day this year, Sherry added a comment to the video that gives a sardonic thanks to Judge Christine Riddle Butts and Ginger Lott for putting "Willie Jo Mills in the grave."
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