I Care A Lot: A Horror Story for the Aged
Rosamund Pike’s Marla Grayson is a terrifying boogey man. Are people like her a threat in real life?
Every week in my newsletter, I answer a legal question from readers.
This week’s question comes from my mom via text. Yeah, I know I recently answered another question from her, but she’s my mom so she gets to the front of the line. She also tells me things like, “I brought you into this world and I can take you out,” and I don’t plan on testing her.
Mama McKinney asked:
“I watched I Care A Lot and found it very upsetting. Does this really happen to vulnerable seniors? Could she really do that in real life?”
Excellent question, Mom!
Holy shit! I Care A Lot is … a lot. When Paris and I went to see Uncut Gems in the theaters (LOL REMEMBER THEATERS??) I had to get up and leave my seat several times because it was making me anxious! I Care A Lot is a slightly funnier version of Uncut Gems.
Instead of getting up to leave the theater during I Care A Lot, I sat on my couch absolutely sweating because of how upsetting it is to watch older people be mistreated. And my job every day is to help older people who have been mistreated! That’s how intense the movie is.
** SPOILER ALERT ** I don’t plan on spoiling the twists and turns of the movie, but if you are like me and don’t want to hear anything about a film before watching it, now may be a good time to close this article and open Netflix to check out the flick before going further.
So, to the first question at hand — does this happen to vulnerable people?
Yes, it does happen! Instances of guardianship abuse occur (1, 2), but due to the decentralized nature of guardianship regulation, there is a lack of data on the subject. The U.S. Senate Special Committee on Aging published a report in 2018 calling for reform and increased oversight of guardianships. At the time of the report, 1.3 million people were under guardianships across the country with around $50 billion dollars of wards’ assets controlled by guardians.
Britney Spears and her conservatorship struggles are arguably the most famous current example. In California, a guardianship is called a “conservatorship,” but it is functionally the same as guardianship, so I’ll use that term throughout this article. For all the coverage on the #freebritney conservatorship situation, check out our two-parter on Sinisterhood.
Another controversial guardianship story was “From Headache to Hostage,” the story of Doris Davis, a woman in Houston in her 80s who, in 2014, checked into the hospital for a headache and ended up in a nursing home, controlled by a guardianship managed by the state with her house sold to pay expenses.
Page after page of filings in Ms. Davis’s case show concerned family members advocating on her behalf and asking for her release from the state’s control. However, the requests were repeatedly denied, although Ms. Davis was granted a partial restoration of her rights. Documents do not indicate whether she was able to take advantage of those restored rights. Public records show that, despite her family’s best efforts, Ms. Davis remained under the arrangement until her death in mid-2018.
The most Marla-Grayson-ish real life story was that of April Parks. Short and stocky with dark hair, she was the exact opposite of Marla in appearance. But in action? The movie may as well have been based on her true story.
According to The New Yorker, Parks not only was overbilling her wards, many of whom didn’t need to be in the guardianships, she was also found to have benefited from the “collusion of hospital social workers and medical staff” who sent wards to Parks, just like in the film.
Last Week Tonight with John Oliver mentioned Parks’s case in a 2018 segment on guardianship abuse, which shows actual footage of Parks admitting to overbilling her wards. She was eventually sentenced to 16 to 40 years in jail after pleading guilty to two counts of elder exploitation, two counts of theft and one count of perjury.
The stories are awful and scary and real, so let’s break it down and see how it happens.
WHAT IS A GUARDIANSHIP?
A guardianship gives full or limited authority to a person called a “guardian” to manage the financial and personal affairs of an “incapacitated” person called a “ward.”
Several players are involved in a guardianship. They are:
- Guardian: This is the person who takes control of the vulnerable adult’s finances and care. If the guardian is a disinterested third party appointed by the court (like Marla Grayson), then they are sometimes referred to as a “Guardian Ad Litem.”
- Ward: The vulnerable adult who is in the guardian’s control. Before the guardianship has officially started, this person can be referred to as “the proposed ward.”
- Probate Court: In some Texas counties, specialized probate courts decide whether to approve guardianships. In other smaller, more rural counties and other states, the decision may be made by a judge who is possibly not even a lawyer.
- Attorney Ad Litem:This is an attorney appointed by the court to represent the best interests of the ward. Texas appoints these lawyers for wards, but not all states do.
- Court Investigator: This person works on behalf of the court to provide reports to the judge on the ward’s condition.
On “probable cause,” which can include a letter from “an interested person” or a letter from a physician who has examined the proposed ward, a judge can order a guardian ad litem or court investigator to determine if the proposed ward is incapacitated.
If it is determined that the ward is “substantially unable to feed, clothe or shelter himself/herself, to care for his/her physical health, or to manage his/her financial affairs,” then the guardian ad litem or court investigator shall file an application for guardianship over the proposed ward.
The process works much the same in the movie. Marla gets the ball rolling by having a physician submit a letter about her patients’ well-being. Rather than appoint a random guardian ad litem, the judge seems to continually appoint Marla. Instead of having Marla investigate and determine whether the wards are incapacitated, the judge in the movie fast tracks the process and just approves the guardianship. This is probably because the move is only an hour and fifty-eight minutes long, and legal proceedings take a lot longer than that.
COULD MARLA DO THIS IN REAL LIFE?
Possibly, but it wouldn’t be quite as easy as it was in the movie.
The type of guardianship Marla seems to be getting in the film are temporary emergency guardianships. Under the Texas Estates Code, temporary guardianships are required to end after 60 days. In order to obtain permanent guardianship over her wards, Marla would have to undertake the full guardianship process. That process would present a lot of speedbumps to Marla’s scam and would require a massive, concerted conspiracy involving multiple parties.
The first hurdle Marla would encounter is in the form of the Attorney Ad Litem (AAL). Texas law states that a court shall appoint an AAL, an actual lawyer, to represent the proposed ward’s interests in guardianship proceedings. That’s not the case for every state.
The AAL must meet with and interview the ward before the permanent guardianship hearing. The AAL also must be provided with copies of all of the documents filed with the court. The purpose of the AAL is to act in the ward’s best interest. Neither the ward nor the guardian selects the AAL. The court assigns an AAL from the pool of qualified attorneys in the ward’s area.
Marla would have to pay off and bribe every qualified AAL in the area who was assigned to her wards’ cases. This would be very difficult and costly to achieve. As a person who paid an ass load to go to law school and who values her law license, integrity, and freedom (not necessarily in that order), there is no amount of money in the world that would convince me to let some vape-sucking shrew lock up older people for no reason.
But even if she could somehow bribe the assigned AAL, Marla would still have to deal with the court investigator. Not only are court investigators required to meet with the ward and investigate the circumstances of the guardianship, the investigator has to file a report stating that the guardianship is more appropriate than any of the possible “least restrictive alternatives.”
The least restrictive alternatives are Marla’s biggest hurdle. Between 2015 and 2018, Texas guardianship law underwent several changes. The most significant change is that anyone applying for guardianship now must prove that they first tried using “least restrictive alternatives” to avoid the guardianship before applying to take away the ward’s rights.
Some of those “least restrictive alternatives” are powers of attorney, trusts, and supported decision-making agreements. A ward should also be offered supports and services, which include Meals on Wheels, in-home caregivers, Adult Protective Services, mental health resources, and assistance through charity organizations. Marla would have to certify to the court that all alternatives to guardianship have been considered.
A Texas judge would be unlikely to grant a permanent guardianship without some indication that those supports and alternatives were offered. The judge would also look to the court investigator and attorney ad litem to get their take on the situation. If Marla paid all those people off, sure, maybe. But that seems highly unlikely and too expensive to be worth it.
She’d likely just move to another state where there is way less oversight of the process.
GETTING OUT OF A GUARDIANSHIP
In Texas, either the ward or an interested person can submit an Application for Restoration with the court. A ward can also write an informal letter to the court. When a court receives a letter, the court investigator or guardian ad litem must meet with the ward and determine whether “the ward is no longer an incapacitated person or a modification of the guardianship is necessary.”
Texas law also requires the court to appoint an attorney ad litem to represent the ward in a proceeding for “restoration” — the legal term for ending the guardianship — or modification of the guardianship.
The good news? The evidentiary standard of proof required to restore someone’s rights is lower than it is for asking for a guardianship in the first place.
The bad news? The American Bar Association conducted a survey on “restoration of rights” — that is, getting out of guardianships. It showed that “an unknown number of adults languish under guardianship,” even if their conditions improve or they never should have been under the guardianship in the first place. The report warned that guardianships are “permanent, leaving no way out — ‘until death do us part.’”
However, there is a growing focus across the country on alternatives to guardianships to keep people from “languishing” unnecessarily. Part of that includes providing necessary supports and services to keep incapacitated adults as independent as possible for as long as possible. Texas has put in several statutory safeguards meant to preserve the independence of incapacitated adults, including the Ward’s Bill of Rights.
One of the most valuable parts of the Ward’s Bill of Rights is the right to “complain or raise concerns regarding the guardian or guardianship to the court, including living arrangements, retaliation by the guardian, conflicts of interest between the guardian and service providers, or a violation of any rights under this section.” If the court receives a complaint from “any person,” the court investigator has a duty to investigate the complaint and report to the judge if necessary.
That means if Dean Erickson appeared in a Texas court and complained to the judge, he wouldn’t be thrown out for being unrelated to Jennifer Peterson. He is “any person” complaining of the ward’s treatment and has a right to make a complaint regarding her guardianship.
HOW TO PROTECT YOURSELF FROM MARLA GRAYSON
The best way to protect yourself from being taken advantage of is by planning in advance. A few simple estate planning documents can work to prevent a Marla from slithering in, draining your assets, and taking your freedom. Heads up: these are what the documents are called in Texas — if you’re in another state, they may have different names.
Here are three of many planning tools you could use to protect yourself from the Marlas of the world.
Power of Attorney — A power of attorney or “POA” is a document that lets you designate someone to act on your behalf. You can either execute:
- a general power of attorney that ends if you become physically or mentally incapacitated,
- a durable power of attorney (usually called a “statutory durable power of attorney”) that stays in place regardless of your mental or physical incapacity, or
- a springing power of attorney that gives the agent you choose power ONLY when you become disabled or incapacitated.
How it Protects You from Marla: In its analysis for least-restrictive alternatives, the court will ask whether a POA is in effect, and if so, whether it is working. If it is in effect and working well, the court should deny her application for the guardianship of your estate to manage your money and let your loved one continue helping you.
Medical Power of Attorney: Similar to the POA above, a medical power of attorney allows you to designate someone to make healthcare decisions on your behalf if you become mentally or physically incapacitated.
How it Protects You from Marla: Just like the POA would protect against an application for guardianship of your estate, a medical POA that is in effect and working well would show the court that there is no need to grant a guardianship of your person to make your healthcare decisions.
Designation of Guardian Before Need Arises: Texas law allows any person (other than an incapacitated person) designate who they want to serve as their guardian in case the need arises. Unless the court determines that the person designated is disqualified or would not serve the best interest of the ward, the court SHALL appoint the guardian designated by the ward.
How it Protects You from Marla: If a Marla rolled into your life and tried obtaining guardianship over you, but a family member or trusted contact has a validly executed Designation of Guardian Before Need Arises, that trusted person would bring the designation to the court and ask to be appointed instead.
Supported Decision-Making Agreement: This special agreement allows an adult with a disability to designate a “supporter” to help the adult make decisions. Unlike a power of attorney, the supporter does not make decisions for the adult. The role is more of information gathering and advising. Any adult can be designated as a supporter, and it does not require an attorney or a court to fill out the form.
How it Protects You from Marla: Texas courts determine whether “least restrictive alternatives” have been put in place before granting a guardianship. Showing that an adult has a Supported Decision-Making Agreement in place and is able to make decisions on their own with the help would be a mark in the column against guardianship.
Of course, nothing is totally foolproof. However, the more hurdles in place, the more difficult it is for an unscrupulous person to take advantage of you or your loved ones.
There have also been calls for reform nationwide from key stakeholders in the legal and elder care communities. Some proposed changes include screening for less restrictive options, focusing on values and preferences of individual, and strong guardian practice standards and training, among others. As those reforms are enacted throughout the states, seniors and adults with disabilities will be even safer from future Marla Graysons and April Parkses.
It is important to note that not all guardianships are bad. There are certain incapacitated adults who truly need the oversight of someone to make decisions for them. But guardianships are drastic and should only be implemented where absolutely necessary after all alternatives have been tried and failed.
I hope that answers your question, Mom! Thanks for sending. Also please know if anyone tried to Marla Grayson you, I would Peter Dinklage them right back.
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NOTE: The opinions, language, findings, conclusions, or recommendations expressed are mine alone and do not necessarily represent the official position or policies of my employer or anyone else who may be affiliated with me. Don’t blame them. This is all on me.
