Ohio Judge James T. Walther, Lorain County

When Khashayar Saghafi’s aging mother was appointed a guardian by the Lorain County Probate Court in Ohio six years ago, he never dreamed that it would result in a federal complaint and the end of his parents’ six-decade marriage.

Recently, Mr. Saghafi moved the Lorain County Probate Court to release his 85-year-old mother from the grip of the guardians who initiated a divorce between his mother and his 89-year-old physician father, who together had amassed $8 million in marital assets, according to court records.

“Given their advanced ages and Mrs. Saghafi’s advanced, progressive dementia, filing an
action for divorce was not in the best interests of either party, and there existed no reasonable, rationale or good faith basis for filing the Divorce Action,” said Saghafi’s attorney, Charles Longo. An appeal of the case, Zachary Simonoff v. Mehdi Saghafi, et al, is pending in Ohio Northern District Court.

The case highlights the unexpected downsides of court-appointed adult guardianships, which are designed to help the old and the infirm manage their lives but are under fire nationwide amid allegations of neglect, abuse and financial exploitation. Those problems haven’t escaped the watchful eye of Congress, as evidenced by the recent introduction of HR 4174 to enact protections against elder abuse and neglect under guardianship.

“Safeguarding our nation’s seniors from abuse and exploitation must be a priority, and too often our current guardianship system fails to protect older Americans,” said U.S. Michigan Representative Debbie Dingell in a joint statement highlighting the bill’s introduction.

But it’s likely the court system is where these issues will be settled in the short term. Lawyer Bradley Geller, for one, filed a federal suit against the state of Michigan that alleged public administrators were engaged in, among other things:

  • Separating a couple married 40 years and not allowing a husband to visit his wife in a facility
  • Placing individuals in currently unlicensed care centers in which no one has a duty to ensure proper medical care
  • Warehousing individuals in a facility in which a resident developed scabies mites
  • Botching Medicaid applications, which put a resident in jeopardy of involuntary transfer for failing to pay the nursing home bill

The case suffered a setback with U.S. District Judge David M. Lawson’s May 16 decision to dismiss Mr. Geller’s complaint against the state of Michigan, citing the federal False Claims Act. That dismissal was based on a magistrate’s recommendation, which stated the allegations were overly broad.

Mr. Geller filed an appeal to the Sixth Circuit in Cincinnati on Aug. 9. His Issues Presented to the U.S. Court of Appeals asserts the lower district court erred in determining fraud was not alleged with specificity and that the lower district court abused its discretion in offering a mere conclusory statement without evidence that even a single allegation was totally implausible.

Mr. Geller’s lawsuit is among a slew that have been filed recently involving court-appointed adult guardianship that allege violations of Constitutional rights and violations of the Americans with Disabilities Act. They include:

  • Florida Middle District Court: Lesa Martino v. Traci Samuel, in which Ms. Martino sued her elderly father’s guardian Ms. Samuel for alleged numerous violations of the U.S. Constitution, including denial of visitation.
  • Texas Southern District Court: Johnston v. Dexel, in which Sherry Johnston sued court-appointed guardian David Dexel for the alleged preventable decline of her elderly mother, which led to death.

What’s at stake overall in these cases is the autonomy of over a million people. According to the National Center for State Courts, 1.3 million senior citizens are losing control of some $50 billion in assets to court-appointed guardians. Long term, the stakes are even higher, given the $41 trillion in wealth that will transfer from the World War 2 and Baby Boom Generations to Gen X and Millennials. Perhaps even scarier, these individuals can be denied pensions, advanced directives, voting privileges and choices of food, medical insurance and care, marital status, legal counsel and even visitation with their friends and family.

Lest one think that these cases involve only the elderly tucked away out of sight in nursing homes, pop star Britney Spears is also under the thumb of a court-appointed guardian in California after exhibiting alleged mental instability. According to media reports, Spears asked the judge overseeing her case in May to grant more freedom and ease restrictions that have prevented her from making basic decisions for more than 11 years.

“Evidence is mounting that state courts are essentially rubber stamping these petitions and are not affording due process to the adults whose rights are targeted in these proceedings,” said Tom Coleman, founder of the Spectrum Institute and an attorney based in California where guardianship is referred to as conservatorship.

As for Michigan, Mr. Geller named the Michigan Supreme Court, Michigan Attorney General Dana Nessel, each of the state’s probate courts, all 300 professional guardians and eight public administrators as defendants. The 2017 suit includes claims of Medicaid fraud, violation of due process and violation of the Americans with Disabilities Act. Since the case was litigated, four of the eight public administrators have been relieved of their responsibilities by AG Nessel, according to an Aug. 23 statement.

Michigan Supreme Court spokesman John Nevin declined to comment except to say, “The case was appropriately dismissed by the district court.”

Dan Olsen, spokesperson with the Michigan Department of the Attorney General, declined to comment on Mr. Geller’s pending appeal but offered a general statement.

“Attorney General Nessel together with the Michigan Supreme Court launched an Elder Abuse Task Force in March to crack down on elder abuse in the state,” he told PacerMonitor News. “We have completed our listening tour with 12 stops across the state and are moving forward on our nine initiatives. We fully intend to incorporate the feedback we received during our tour into additional initiatives as the task force moves forward.”

Public administrators are collectively guardian and/or conservator to some 2,500 older adults within the state.

“We hope the Michigan Supreme Court will now order probate courts to relieve all eight defendants of all their guardianships and conservatorship cases,” said Mr. Geller

Meanwhile, the eight public administrators moved the district court for sanctions against Mr. Geller, averring that his federal lawsuit was filed for the “improper purpose of harassing and painting the public administrators in a negative light.”

However, Magistrate Grand recommended the administrator’s motion for sanctions be denied.

“Geller’s argument about individuals under guardianship having certain inherent challenges to independently pursuing their rights is far from frivolous,” he wrote in his Aug. 7 Report and Recommendation to Deny Defendant Public Administrator’s Motion for Sanctions.

U.S. District Judge Lawson has yet to rule on sanctions while Mr. Geller’s appeal winds its way up through the Sixth Circuit in Cincinnati.