FROM THE CHAIR

By Ellen McKissock, Esq.*

The buzz around the trusts and estates community is: You should watch the Netflix original I Care a Lot¹ about a court-appointed legal guardian who obtains guardianships ex parte, institutionalizes her wards, then sells their assets for her own profit. Reviews call the movie a "dark comedy" or an "unnerving thriller," but for those of us practicing in the field, the film comes close to an uncomfortable reality. Articles about the movie range from asking, "wait a minute, did that really happen?"² to declaring "The Shocking True Stories Behind Netflix’s ‘I Care a Lot’."³ Though the Netflix flick is fictional, sadly, the movie was inspired by true events. In 2017, Journalist Rachel Aviv wrote a disturbing article in The New Yorker documenting abuses in Las Vegas, Nevada by Private Professional Guardians April Parks and Jared Shafer and enabled by Guardianship Commissioner Jon Norheim.⁴

According to Aviv, in 2017 there were a million and a half adult Americans under the care of guardians who controlled some $270-$300 billion in assets.⁵ Over the last twenty years, the Las Vegas Valley has touted itself as a retirement paradise, resulting in an eighty percent increase in new Nevada residents over the age of eighty-five in just the past decade.⁶ With the influx of elders, there was an explosion of private guardians and the court’s dockets swelled with new cases: "The court became a factory."⁷ Aviv tells the stories of ten different wards, all in Nevada, all whose assets were sold and whose family members could not prevent or assume control of the guardianship proceedings.⁸ One daughter finally resorted to kidnapping her father and taking him beyond the jurisdiction of the court to California.⁹ Aviv hypothesized that sometimes doctors or nursing homes, whose bills went unpaid, resorted to seeking a guardianship that could liquidate the elder’s assets or move them out of their facility¹⁰ The Private Professional Guardians who developed a relationship with the overburdened Guardianship Commissioner were viewed by him as "social worker types," and he appointed wards to them so often that they managed as many as one hundred wards at a time.¹¹

While these facts seem hard to believe, the article’s more incredible statement is that these wards had no legal representation before the court.¹² My first reaction was: "That cannot be true." My second reaction was: "Well, that is Nevada." We are California and we do provide court-appointed counsel. But just how effective is court-appointed counsel in representing the interests of conservatees they are appointed to represent? As Trusts & Estates Executive Committee ("TEXCOM") member Ralph Hughes and his partner, Anne Rudolph, wrote in The Quarterly in 2019, some courts in our state encourage or even require court-appointed counsel to be the court’s informant or a substitute for the court investigator.¹³ The appointed attorney is often required to provide the court with a report of what the attorney believes is in the best interest of the attorney’s client, rather than act as an advocate for the client’s wishes.¹⁴ These court requirements conflict with an attorney’s duty of absolute loyalty to the client and with an attorney’s absolute duty of confidentiality.¹⁵