Be in the Know with Our Hot Topics at Gerlach Beaumier & Trogdon

Families tested when conflict erupts over elders’ care

By John Lundy on Nov 28, 2015 at 11:00 p.m.

The house sits empty in an Iron Range community, and there’s no hope of selling it.

The owner, his mental capacity diminished by dementia, is in an assisted-living facility, dependent upon a St. Louis County guardian to make decisions on his behalf.

But guardians can’t make decisions on financial matters, said Kelly Sather, a Virginia-based social services supervisor for the county. For that, another court-appointed official is needed: a conservator. Although the two terms are sometimes used interchangeably, a conservator fills a specialized role that is outside of the county’s purview, Sather said. And for people with modest assets, such as the client with the house, she said it’s nearly impossible to find someone willing to take on the assignment.

“It’s our clients that have assets of $10,000 to $40,000 that need to be accounted for,” Sather said. “Our guardians cannot access those (assets). And we cannot find a conservatorship that takes those.”

Because his house was listed as an asset, the man didn’t qualify for Medical Assistance, she said. The county filed an appeal on his behalf and was able to establish that the client didn’t have access to the asset. But the asset — the house — is untouchable.

“So now it sits there and who knows?” Sather said. “Taxes aren’t getting paid.”

As baby boomers age — with 10,000 Americans turning 65 every day and about half of those who reach age 85 experiencing Alzheimer’s or dementia — more of us are reaching a stage in life when others may have to act on our behalf. If we haven’t prepared in advance for that through estate planning, health care directives and similar tools, courts may have to step in, appointing a guardian and/or a conservator.

Either is paid through the protected person’s assets.

That’s when it can get messy, especially when money is involved — but not enough money to draw the interest of for-profit entities.

‘Facts and circumstances’

“If you have millions of dollars, anybody will take it for you,” said Terry Trogdon, a Duluth attorney who handles conservatorships.

Banks can handle conservatorships, and so can family members, said Greg Gilbert, a Duluth attorney whose practice includes estate planning.

“The trouble is, banks are getting out of the business; they don’t want to do it as much anymore,” Gilbert said.

Banks from the huge Wells Fargo to locally based North Shore Bank handle conservatorships, officials say. But whether they’ll take a specific case depends on the “facts and circumstances,” said Jeffrey Cadwell, a trust executive at North Shore.

The Wells Fargo branch in Duluth has a minimum limit of $1 million to accept a conservatorship, said Karl Wasson, senior trust and fiduciary specialist. As of last week, it was holding only two.

Attorneys have the skill to handle conservatorships, but Trogdon said as far as she knows she’s the only lawyer in Duluth currently doing so. The work doesn’t provide the adrenaline rush younger attorneys might prefer, she said.

“It’s really a personal service,” she said, adding: “It’s not cheap. When I do (conservatorships) I charge my rate for the work I do, but I use paralegals for lower work at a lower cost, for the accounting and stuff. I don’t do that myself. That would be exorbitant.”

Lutheran Social Service

If the individual’s assets aren’t sufficient for a bank or attorney, there’s a nonprofit alternative in the Duluth area: Lutheran Social Service.

Of approximately 20,000 Minnesotans protected by a conservatorship, a guardianship or both, fewer than 5 percent are served by LSS, said Dan Blakley, the agency’s director of guardianship options. He didn’t have specific figures for Northeastern Minnesota.

But although she described LSS as “wonderful partners for us,” Sather said the nonprofit only takes on clients with “higher asset levels.”

Gilbert had a similar perspective.

“They’re getting more on the side of the bank,” he said of LSS. “They’re getting larger and more bureaucratic and kind of expensive.”

Blakley said LSS has no minimum financial limit for its clients. But he added that there usually are better alternatives that are less restrictive and more cost-effective than conservatorships when assets are small.

Overall, Blakley said, 70 percent of the people LSS serves as either guardian or conservator are considered indigent — with assets of less than $3,000.

LSS charges between $75 and $85 an hour, with the money withdrawn from the individual’s assets, Blakley said. When the money runs out, LSS will request to be discharged as the conservator because there are no assets to manage. But the agency is required by the courts to continue serving as guardian.

“We operate on extremely small margins,” he said. “I don’t have exact numbers, but I can say it’s really — the margins we operate on are pretty small.”

‘They’re not communicating’

When there’s a conservatorship, family members aren’t always pleased with the results.

Both Judy Fontaine of Duluth and Dave Mulford of Austin, Texas, tell similar stories: Their moms are widows in Duluth nursing facilities whose faculties have diminished. There is disagreement among siblings as to how affairs should be managed. LSS has acted as conservator for Mulford’s mother and had power of attorney for Fontaine’s. Both have broken ties, or are trying to break ties, with the organization.

Even when both of her parents were living and both were able to participate in decision-making, LSS “totally ignored my mom’s and dad’s requests for any information about anything,” Fontaine said.

Fontaine claims the LSS representative paid more than $18,000 out of the assets to prearrange funeral services for her parents without consulting them.

Mulford claims he has been left in the dark about his mother’s financial affairs. “They’re not communicating,” he said of LSS. “They’re not answering my questions.”

Blakley said he couldn’t discuss specific cases, but said the agency follows National Guardianship Association standards and that its guardians are certified by the Center for Guardianship Certification.

Sibling rivalries can complicate matters, he said.

“If the protected individual wants us to provide information to the family members, we definitely do that,” Blakley said, later adding: “If siblings have differences of opinion, if they’re not in agreement, it’s difficult to please everybody.”

Gilbert agreed that LSS often gets caught in the middle and is unfairly blamed.

“You know, it’s not uncommon,” he said. “(Family members are) going to be ticked off. They complain about Lutheran Social Service. Well, Lutheran Social Service did nothing wrong. It happens all the time. So Lutheran Social Service takes a lot of crap that they don’t deserve.”

Unhappy families

The first responsibility is to the protected person, Blakley said. “Oftentimes the people that we serve don’t want the information shared with their children,” he said.

LSS guardians and conservators meet with each protected person face to face once a month, he said. Some get to know the individuals and their families well, even being invited to birthdays or weddings.

But it’s with family members that LSS may fall short, Trogdon said.

“Anecdotally, Lutheran Social Service doesn’t seem to communicate one-on-one really well with the families of the protected people,” she said. “There may be cases in which they do, but some of (the cases) that I’m aware of that’s not the case.”

As a conservator, Trogdon believes in communicating with family members, she said, even when she has to act contrary to their desires.

“It might be that by (LSS) being more aloof they don’t have to deal with that stuff,” she said. “But I don’t think that avoiding conflict is necessarily in the protected person’s best interest.”

But Blakley said LSS goes through numerous procedures to make sure it is providing what he calls “person-centered guardianships and conservatorships.”

He listed them off: An ethics committee. Supervisory case reviews on a monthly basis. A “client outcome tool” that tracks decision-making and determines whether there’s a pattern of one guardian being more restrictive than others.

House not selling

Mulford — along with Michelle Ryan, a real estate agent for Century 21 — particularly complained about how LSS has handled the sale of his mother’s house. Before LSS took over as conservator, Mulford had obtained two appraisals, and they had agreed to list a price midway between the two, Ryan said. But LSS insisted on getting two new appraisals and then listing the house at the higher of the two: $179,000.

“The price is too high,” Ryan said. “We can’t sell it.”

Also, the process of obtaining new appraisals took so long that by the time the house was listed, the peak summer selling season was over, she added.

“We missed this huge rush,” Ryan said. “It was an awesome market. We missed.”

Again, Blakley said he couldn’t discuss specific cases. But a conservator can only sell real estate as directed by a court, he said. The court requires independent appraisals and requires that the listing be at the higher of the two appraisals, he said. The price can’t be lowered without the court’s permission.

“Often, appraisals that are completed … prior (to the conservatorship) may not be considered independent appraisals by the court,” he said.

After Monday, Ryan will no longer be the agent for the house’s sale. In an exchange of emails, LSS guardian Timothy Holbrook asked her for “an overview of the strategies used” in attempting to sell the house, and said “at least one other Realtor” would be asked for a similar plan.

Ryan didn’t respond, and answered a follow-up email angrily, saying she was “firing” LSS.

“I work in the best interest of my clients,” she wrote. “I have discovered that you work in the best interest of yourselves.”

‘A last resort’

Experts point out that such conflicts are the exception, not the rule, and usually can be avoided with advance planning.

“Generally speaking, if a family needs a guardianship, it means their estate planning has failed,” Gilbert said. “Guardianships are a last resort.”

Sather echoed those words: “Guardianships should be the very last thing that we look at for individuals,” she said.

Guardians and conservators are court-appointed offices and are cumbersome and expensive, Trogdon said. And they infringe on the civil rights of the protected person. “So it’s not a trivial matter,” she said.

It’s usually better if the individual previously has assigned the power of attorney to someone — such as a family member — in the event he or she becomes incapacitated. This allows that individual to assume decision-making without court intervention.

“If you have powers of attorney that are prepared, then when they are needed someone can step in and do that stuff for you,” Trogdon said.

But conflict may arise when a son or daughter tries to exercise power of attorney before the parent is ready to relinquish those powers, she said.

“Well, Mom’s probably just fine,” Trogdon said. “Kid doesn’t think Mom is doing exactly what kid would do. And so now you have this breach in this relationship. And it can be destroyed forever.”

Although an individual can assign power of attorney without going through a lawyer, Trogdon said when she’s asked to handle it, she asks for specific instructions about when it should be released to the designated person.

Heavy caseload

For St. Louis County, the guardian for 238 individuals, the cases often come through Adult Protection Services from some form of maltreatment, Sather said.

With just three guardians — two in Duluth and one in Virginia — the load on the people assigned to those cases is “full, very full,” Sather said, adding: “We can’t turn away people because our workers are full. The emergency ones, the new ones, those tend to be the higher, time-intensive work.”

She’s always on the lookout for individuals to serve as conservators when needed, Sather said.

“If people are comfortable and confident with their financial ability and it doesn’t scare them away, I’m trying to figure out ways we can grow that service,” she said.

But many find the task daunting, Trogdon said.

“What we have found in St. Louis County is the amount of time, effort and stress that a conservator experiences is discouraging people to be conservators,” she said. “Because you really do have to have some personal contact with the protected person. And you have to understand what their needs are, as well as understand how to manage their assets. … And then be held accountable for it.”

Considering the vast scope of Lutheran Social Service’s work — from crisis nurseries to financial counseling to disaster relief — there might be room to form a local charity to focus solely on guardianships and conservatorships, Gilbert suggested.

“I think the government has a responsibility,” he said. “But there’s also room for, I think, new charitable organizations to come in.”

Fontaine has severed relations with LSS, but she said her parents’ estate lost thousands of dollars in the process. Trogdon now acts as her mother’s conservator.

The situation has been “eye-opening,” Fontaine said.

“You start this process, and you haven’t a clue of what you’re looking at,” she said. “You don’t know what questions to ask. You feel like you’re falling into a cavern. For us, the family just imploded.”

Call Today at: 218.722.2144

227 West First Street, Suite 610
Duluth, MN 55802


The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your specific situation.