The Right to Decide One’s Own Destiny

Glen Hawkins, 89, had pedaled two miles from his Leisure World condo to his bank and was conferring with his investment counselor when he got the startling news.

Without legal notice or a chance to object, Hawkins had been declared too feeble and addled to manage his financial and personal affairs.

On its own, a Long Beach firm of caretakers had petitioned a judge and had been awarded virtually total control of Hawkins’ life.

He no longer had the right to touch his money, about $380,000 in all. He no longer had the right to make decisions about his medical treatment.

And unless something was done quickly, he would no longer have the right to decide where and how he would live. If the firm believed he belonged in a nursing home, that’s where he would go.

All his mail was being diverted to the firm, which would use his money to pay his creditors--including itself, for the firm was charging him $75 an hour. It already had racked up almost $1,200 in conservator and attorney fees.

That was in February. Since then, Hawkins and his relatives have spent an estimated $10,000 in legal and travel fees to wrest control of Hawkins’ life from the firm. They have won at least a temporary victory, but another court hearing is scheduled this week.

In the process, they have learned what “conservator” means in California law.

Under long-standing provisions, anyone--friend or foe, relative or stranger--can petition a court alleging that you are incapable of taking care of yourself. If a judge agrees, your freedom and wealth can be turned over to a court-appointed conservator.

The conservator often is a relative or friend, but with increasing frequency it’s a professional who, for a fee, manages your life as a guardian manages a child’s.

Sometimes conservatorship is imposed because of mental illness or incapacitating accident. Most often, however, it is invoked when old age has made a person feeble or feeble-minded.

Average life expectancy now is about 76 years and is expected to reach 80 in about a decade.

Many in the 85-and-older group are in nursing homes, but of those who are not, about half need help managing the details of everyday life, according to census estimates.

A cottage industry has risen to meet the demand. There are 44 professional conservators registered in Orange County, about 80 in Los Angeles County. Many, perhaps most, are one-person firms conducting business from home, attorneys say.

How do you become a professional conservator? It’s easy. Just declare yourself one and register with the local Superior Court.

The state, which regulates appliance repair and beauty shops, has no requirements for conservators, even though in California they control hundreds of millions of other people’s dollars. Attempts to legislate standards for conservators have failed repeatedly and been vetoed once.

For now, the system depends almost wholly on the ethics of conservators and the vigilance of judges.

*

Glen and Mary Hawkins, in their late 80s and married 63 years, believed they had their affairs in order. They had a condominium in Leisure World in Seal Beach and money in the bank. They had wills. Childless, they had assigned a nearby friend power of attorney in case they could no longer make medical decisions.

They were determined to remain together and at home, where Glen would care for Mary.

Mary’s osteoporosis caused her so much pain she could barely move or sleep, but she wanted no help from strangers. A social worker from the Hawkins’ health care clinic at Leisure World found a succession of live-in helpers for her, but Mary kept firing them.

“It was denial, but mostly pride,” says the social worker, Janice Derderian. “Many people here are completely autonomous and take great pride in it.”

During the usual family gathering in the Seattle area over Christmas in 1994, Mary told her nieces and nephews it would be the couple’s last trip anywhere. They loved traveling, but now it was too difficult.

“They told us they were going to stay together forever,” says Mary Brim, an elementary school teacher in Moline, Ill., and Mary’s niece. “I guess they always thought they would die at the same time.”

By December 1996, eight years of single-handedly caring for his wife had taken its toll on Glen. Mary fell often, and unable to lift her, Glen repeatedly called 911 for help.

Finally, after she fell against her walker and badly bruised an eye, Derderian told Glen his wife belonged in a nursing home. “She had fallen so many times she was black and blue all over,” Derderian says.

Glen Hawkins’ hostile reaction is recorded in Derderian’s notes, which are part of the court record. He rebuffed her questions about money, and when she asked about relatives, he told her there were none.

“Later on, he told me it was none of their business whether he had relatives or not,” Brim says. “That was the flip remark that got him into deep trouble.”

His relatives say they can’t understand why Derderian took Glen Hawkins at his word. Photographs of relatives were scattered around the condominium, they say, and their phone numbers were in the Hawkinses’ address book.

The emergency notice all Leisure World residents are encouraged to post on their refrigerator door listed the Hawkins’ nearby friend. She not only had power of attorney for medical decisions but had regular contact with the Hawkins’ relatives.

Derderian says that she prefers to have family take over, but that the Hawkinses had not listed their family on clinic records. She says she had no time to search for relatives because this was an emergency situation.

She told the Hawkinses she would find space in a nursing home for Mary.

Derderian returned the following day after Glen again called 911. She found him “quite delusional and hallucinatory.” She noted that Glen didn’t recognize his wife, believing a stranger was sitting in her chair. “I believe this was precipitated by the stress, sleep deprivation and poor nutrition over the past 24 hours,” Derderian wrote.

Relatives have another theory: Glen was reeling from the possibility that he’d be separated from his wife for the first time in 63 years.

Glen later told relatives that he went back on his promise to his wife to keep her at home because he’d been threatened with criminal abuse charges if he interfered. He relented, and Mary Hawkins was taken to a nursing home in Los Alamitos.

Refusing to eat, Mary Hawkins died there 19 days later on Dec. 29. According to Carol Ulrey, another of her nieces, she died “in diapers, tied to a bed, and [her] last words to her husband were, ‘How could you do this to me?’ ”

Glen, who had been pedaling four miles to the nursing home daily to visit his wife, arrived 40 minutes too late on the day of her death.

He was driven home by a nursing home staff member who didn’t believe Glen’s vague statement that there was “no one to call.” She went through his address book and called Mary Brim with the news.

Brim was not the only one being notified. The nursing home called the firm of Ellman & Gladstone in Long Beach, professional conservators whom Derderian had summoned as soon as she’d been told by Glen that there were no relatives.

Though the firm did not yet have official standing in the case, it had, according to its accounting to a probate judge, spent two hours talking to Derderian and consulting with the nursing home staff. For this the firm intended to bill Glen Hawkins $149. Answering the phone call about Mary Hawkins’ death would add another $10 to the bill.

*

Calling in private conservators is a very recent development, says Don Green, former chairman of the state bar’s probate section, which has repeatedly sought regulation of conservators.

“Ten years ago, they would have called the county public guardian’s office, which might have filed for conservatorship. But with social service budget cuts, they’ve sort of withdrawn from this end of it.”

Having private professionals available when family or friends are not is vital, he says. Cases of professional conservators misbehaving are rare.

“It’s still just a small cottage industry that grew up when the banks became less interested in doing it and county social service budgets were being cut.

“But it’s crazy to put people’s welfare and their estates in the hands of private conservators who the state has screened less than it screens barbers,” Green says. “We badly need some laws here, but the Legislature’s not in the mood right now for more regulation.”

At present, a conservator need only register with the local Superior Court. He or she is fingerprinted and checked through criminal records, but even if the person is found to be a criminal, the registration must still be accepted. Even if the conservator is later disciplined or convicted by the local court, there is no system for informing other courts in the state.

Many courts--including those in Orange County--refuse to disclose their registration lists for fear that will imply court approval of registrants. “There’s no print bold enough to prevent the public from believing that these people are endorsed by the court,” one judge says.

Whether a particular conservator gets any work, however, is up to individual judges. If a judge thinks the private conservator is better qualified than the family to look after Uncle Joe and his money, he or she will probably get the job. The conservator must account to the court periodically, but typically only once every year or two.

According to state law, a conservatorship should be filed in the county where the disabled person lives--Orange County in Glen Hawkins’ case. But the law allows for exceptions when it benefits the disabled person. Ellman & Gladstone filed in Long Beach, just over the boundary in Los Angeles County.

Los Angeles County courts are getting a lot of Orange County filings nowadays, attorneys say. Los Angeles County judges are more receptive to professional conservators and allow them to charge $75 an hour, about average for urban areas. Orange County has a de facto $35-an-hour ceiling, too low for professionals to make a profit, they say.

*

The day after Mary Hawkins’ death, the social worker received a surprise: There were relatives after all. Mary Brim called Derderian, and when she introduced herself “there was just silence,” Brim recalls.

“I told her there are relatives, and we’ll have to decide what we’re going to do.”

Early in January, some of them gathered in Seal Beach: Dan and Carol Ulrey, Mary Hawkins’ niece and nephew from the Seattle area, and Carl Hawkins, Glen’s nephew from Victorville.

In a telephone conversation, Derderian had told Carol Ulrey that Glen “wasn’t paying his bills, wasn’t changing his clothes, was totally delusional--and I suspected she might be correct,” Ulrey says.

But now in Glen’s condominium, Ulrey said none of that seemed to be true. “He had his books out, and nothing was in arrears. He seemed to be pretty astute and understood what was going on. He was taking care of his finances just fine.

“He admitted he was very sad and lonesome and sometimes imagined Aunt Mary was still there,” Ulrey says. Three days later, in fact, Glen awoke about midnight and thought he heard his wife calling from the television set. He dialed 911. “I feel like a damned fool,” he told his nephew the next day.

Carl Hawkins, a teacher whose job did not start until September, decided to look in on Glen every week and keep the family informed. The Ulreys and Carl Hawkins conferred with Derderian, with Ellman & Gladstone and with the conservators’ attorney, telling of their plans and leaving their phone numbers.

“We walked away feeling that if something came up we’d be notified,” Carol Ulrey says.

One of the conservators, Meryl Gladstone, “assured me that they were glad to see some family intervention and they’d drop everything,” Carl Hawkins says. “She said it had been called off and as far as she was concerned, everything would be handled by us.”

Instead, according to Ellman & Gladstone’s accounts filed with the Long Beach court, the firm conferred that same day with its attorney, who spent four hours drafting the necessary papers to become conservators of Glen Hawkins’ money and person.

Neither Ellman & Gladstone nor their attorney would comment on any aspect of Glen Hawkins’ case.

The firm referred queries to its attorney, Carol A. Churchill of Long Beach. Churchill said she would not “debate this case publicly.”

Unknown to Glen Hawkins or anyone in his family, a hearing was held in Long Beach on Jan. 28, and a judge granted a temporary conservatorship to Ellman & Gladstone.

The firm’s petition stated that Hawkins didn’t need to be given legal notice because he was too ill to attend the hearing and too addled to understand what was going on. A standard court form filled out by Hawkins’ doctor testified to his incapacity. (Relatives say the same doctor wrote later to the conservators’ attorney saying Glen Hawkins’ condition had greatly improved. But that letter never surfaced during hearings.)

Regarding relatives, the petition stated that Hawkins’ wife “died a few weeks ago and her relatives are trying to take over her affairs, but [Glen Hawkins] has been married for over 40 years and he needs someone to preserve his rights in the estate. . . .

“There is a potential for future problems because there are relatives on both sides of the family. Ellman & Gladstone do not care who is appointed permanent conservator, but they feel that a conservator should monitor Mr. Hawkins and make sure he is not being taken advantage of and his needs are met.”

The family learned of the conservatorship only when the court’s investigator visited Glen Hawkins’ condominium on Feb. 3, a week after the hearing.

The court investigator’s report contradicted many of the conservators’ assertions.

Glen “was able to give a valid and comprehensive definition of a conservatorship,” and he strenuously opposed it, the report stated. “He spoke very intelligently and gave appropriate responses when interviewed.”

Contrary to what the conservators had declared, Glen was able to attend court hearings and had relatives at hand, the investigator reported.

*

Sometimes, having relatives at hand is not a blessing, says William A. McKinstry, an Alameda County probate judge who chairs the state Judicial Council’s task force on probate and mental health. He says families can exploit Uncle Joe as much as any outsider.

“I came from criminal law; I was a prosecutor,” he says. “I thought I’d seen a lot. Now I’ve seen more--children ripping off their parents, parents ripping off their children. It’s another dimension. It’s frightening.”

Often a conservatorship comes only a few steps before the grave, so Uncle Joe’s will may be on relatives’ minds. And very often where there’s a will, there’s a fray.

“If a son or daughter can do some maneuvering as conservator, they can come out hundreds of thousands of dollars ahead of their siblings,” says Ernest L. Hayward, a longtime probate attorney and estate planner in Orange. Such maneuvering can lead to all-out war among the relatives, he says.

“The pros are not going to inherit anything,” Hayward says, “so they don’t get cheap and play games.”

Hawkins’ relatives “weren’t around before . . . but now there’s $400,000 [Hawkins’ estate] and they’re coming out of the woodwork,” says Derderian, the social worker.

“We aren’t just Johnny-come-lately relative here,” Mary Brim says. “To come down and start to try to help someone and to be treated like someone who’s just trying to steal money was really hard for us to deal with.”

Why should the family automatically be mistrusted? asked Carol Ulrey. “They made no attempt to get to know us or him.”

“I was being called disreputable with no proof,” says Dan Ulrey. “They are the ones who just showed up. They are the ones just doing it for profit.”

“Glen had been showing improvement,” says Carl Hawkins, but news that he had conservators, then that his bank accounts had been taken over, “put him right back on the road to decline.”

“From that day to today,” Dan Ulrey says, “Glen’s sole occupation has been these [conservators]. It’s all he’s been talking about: They’re going to put him in the rest home ‘where they killed Mary.’ ”

*

On March 10, Glen Hawkins appeared in court in Long Beach with his relatives, attorney and a brand new trust he’d signed. His nephew Carl was trustee, and Mary Brim said she had affidavits from all family members expressing confidence in him.

Hawkins told the judge his conservators had done “absolutely nothing” for him.

Though the firm’s petition claimed Hawkins’ bills were piling up, Ellman & Gladstone’s report to the court showed they had paid none of his bills. Relatives said there were no bills to be paid.

Though the petition claimed Hawkins was “unable to provide for the daily necessities of life,” their accounts showed no steps to provide care.

When the judge refused to extend the conservatorship, the conservators’ attorney asked for a geriatric exam of Hawkins in order to rebut the court investigator’s report. That was granted and eventually cost Hawkins another $2,400. Its preliminary conclusion was that Hawkins needed “conservatorship or some other legal avenue” to monitor his care and finances. Hawkins’ attorney says his trust fills the need.

The legal maneuvering continues. The conservatorship has been dismissed in Long Beach, but a hearing this week in Orange County will determine whether Churchill, the conservators’ attorney, may bill Hawkins’ trust for her $2,746.75 legal fee. Ellman & Gladstone have waived their $985 conservator fee.

Now, nearly 11 months after his wife’s death and the entrance of the conservators, Glen Hawkins is in a steep decline. He suffered a heart attack in June, his first, and two months later a stroke. Now he can hardly complete a sentence, his nephew says.

“Mentally, it has been hard on me,” Glen Hawkins said before his stroke. “I’m still worried about it. I mean, it’s hurting me right now.

“I want this thing out of my way. I want it understood that I don’t need nobody.”

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

The Ins and Outs of Conservatorship

HOW ONE IS CREATED

* Anyone may petition probate court to have an adult declared incompetent and to become that person’s conservator.

* Judges usually prefer that informal arrangements be tried first.

* Family members usually are preferred as conservators. Professionals are appointed if the family is not capable or is in disagreement.

* A conservator typically has nearly complete power over a person’s money, assets, health care and living arrangements. The person may be denied the right to vote, marry, divorce or have a driver’s license.

* Because of conservators’ great powers, most judges consider conservatorship a last resort.

* Conservatorships are rarely imposed on adults who can understand and sign financial documents.

* A person facing conservatorship--or anyone else--may oppose the conservatorship in court. Appointment of a specific conservator may also be opposed in court.

WHAT’S GOOD ABOUT IT

* The court makes an independent investigation before and sometimes after conservatorship is established.

* Conservators must account to the court for all their financial actions, usually annually or biennially.

* Judges can impose special requirements, such as forbidding sale of real estate without approval by the court.

WHAT’S NOT SO GOOD

* Court hearings, detailed records, paperwork, bond premiums and conservators’ fees can make conservatorship time-consuming and expensive.

* Occasionally conservators--both family and professionals--have been reckless or dishonest. (Courts usually order that conservators be bonded to protect against loss.)

* Debating competence in open court can be embarrassing and degrading to person’s self-esteem.

* Loss of privacy. Most documents are public record.

AVOIDING CONSERVATORSHIP

Power of Attorney

* Durable power of attorney, enacted while the person is of sound mind, can preclude conservatorship.

* You can grant power over both finances and health care. Use separate documents for each.

* You can grant power of attorney to anyone; he or she need not be a lawyer. Be certain the person is trustworthy and capable; there is no court supervision.

* Power granted can be as broad or as limited as you specify.

* Power of attorney becomes effective as soon as you sign it or as soon as you become incapacitated, whichever you specify.

* Power of attorney can be drafted on standard forms without a lawyer or court action. It can be revoked at any time you are of sound mind.

Living Trust

* A living trust can be made subject to court supervision but seldom is.

* It applies to finances only, not to health care.

* A trust can be useful if it specifies that the person who will distribute trust assets after your death may also manage property if you become incapacitated.

* It seldom includes all a person’s money and property. If so, it does not preclude conservatorship.

“Living Will”

A general term describing three documents:

* Directive to Physicians: A person’s instructions not to artificially extend his or her life--in other words, to “pull the plug.” Its wording is specified by state law and is the only “living will” legally binding in California.

* Living Will and Healthcare Directive: Both are statements of a person’s health care philosophy should he or she not be able to communicate. The statements can range from “pull the plug” to “try everything.” Neither is binding on physicians.

MORE INFORMATION

* “Handbook for Conservators” by the Judicial Council of California, available at county Superior Court probate offices: official regulations and guidelines for conservators.

* “The Conservatorship Book” by Lisa Goldoftas and Carolyn Farren (Nolo Press): do-it-yourself book on petitioning for and conducting a conservatorship.

* Power of attorney forms: available for copying at law libraries. Look up “durable power of attorney” in the index for California statutes. Financial institutions often have forms to cover transactions with them only.

On the Internet:

* “Wills and Estate Planning,” Nolo Press: https://www.nolo.com/ ChunkEP/EP.index.html

* “Conservatorships: A Mixed Blessing,” article from Nolo News: https://www.nolo.com/nn15.html

Sources: Estate Planning, Trust and Probate Committee of the State Bar of California; Nolo News.