John Hartman said he was a 23-year-old janitor with no legal,
medical, or psychological training when he was hired as a professional
guardian in 1976. He found a system with practically no oversight.
A decade later, Hartman testified before a U.S. Congress committee in a hearing
titled “Abuses in Guardianship of the Elderly and Infirm: A National
Disgrace.” Hartman, a tavern janitor-turned-guardian and convicted
thief, testified that the probate court’s guardianship system almost
encouraged abuse.
“It allows those who choose to do so to abuse the rights of and steal from mostly helpless people,” Hartman said.
Nearly
four decades have passed since that hearing, but very little has
changed about the probate court system, according to Rick Black,
co-director of the Center for Estate Administration Reform. Black’s
group is dedicated to stopping what he considers the organized
plundering of assets owned by court wards.
“Bar members, namely
litigators in family court and probate court, have carved out a profit
center here over the last century that we have not challenged as a
society,” Black told The Epoch Times.
According to their website,
Black and his wife founded the center in 2014. The couple claimed a
neighbor who had been appointed guardian of Terri’s disabled father had
stolen $220,000. The guardian was convicted but that conviction was
later overturned on appeal.
“It was very obvious this was organized,” Black said.
Black’s
case led to investigations and reforms in Nevada, but he said the
investigation had little to no effect outside of that state.
A lawyer in South Carolina said he believes he can prove that the probate court in his state is corrupt.
Frances
Michalski’s death during outpatient surgery has inspired a lawsuit
under the Racketeer Influenced and Corrupt Organization (RICO) Act. RICO
is part of the Organized Crime Control Act of 1970 to prosecute
organizations such as the mafia.
The lawsuit after Michalski’s
death, filed on Sept. 4, 2024, is one of three that claims that lawyers,
health care businesses, health care workers, and a hospital system
operate a “Sham Probate Enterprise” in Greenville County, South
Carolina.
The lawsuit alleges that the defendants used the probate
court to “initiate and facilitate the collaborators’ raids upon the
assets and income of the victims ... to enrich the collaborators, all of
whom operate for profit and all of whom profited.”
Paul Hulsey,
an attorney in Mount Pleasant, South Carolina, is one of several
attorneys from three law firms that filed the lawsuit in the U.S.
District Court for the District of South Carolina, Greenville Division.
This
is not the first time RICO has been invoked in guardianship cases. So
far, the tactic has failed, but Hulsey believes several South Carolina
cases meet the RICO standards.
“This is the third of several
similar cases that have been filed, and more will be filed for the
benefit of other victims,” the lawsuit states.
According to the
lawsuit, Michalski bled to death after an alleged botched heart
catheterization at Bon Secours Mercy Health St. Francis Hospital in
Greenville.
The lawsuit alleges that Bon Secours collaborated with
lawyers R. O’Neil Rabon and Trey Suggs to have Luis and Mayra
Michalski, Frances’s adult children, placed under guardianship during an
ex parte hearing on July 21, 2021. An ex parte hearing is a proceeding
in which not all concerned parties are present.
According to the
lawsuit, the Michalskis were interviewed by court visitors, subjected to
medical examinations, and allegedly threatened if they did not
cooperate with the court—all within weeks of their mother’s death.
Most of the defendants’ lawyers did not answer emails requesting comment.
A
person who answered the telephone at Ballard & Watson, one of the
plaintiff’s law firms in West Columbia, South Carolina, had no comment
on the lawsuit.
Court records describe how Frances Michalski died
coughing up blood from a ruptured pulmonary artery on July 8, 2016.
According to the lawsuit, a doctor allegedly overinflated a balloon
inserted in the artery, causing the rupture.
“Francis
[sic] Michalski survived for a matter of minutes between the artery
rupture and her death,” reads a 2019 malpractice settlement petition
filed by the Michalskis.
“Her level of consciousness during this time was subject to debate.”
Bon
Secours sought the guardianship to “ensure that plaintiffs ... never
knew the true nature of their mother’s suffering at the hands of
collaborators Bon Secours and St. Francis, and more importantly, would
not have the ability to personally bring a legitimate multi-million
dollar action for malpractice against them,” the lawsuit states.
Megan Rushton, Suggs’s attorney, called the lawsuit baseless in an email to The Epoch Times.
“The
allegations ... are without any factual basis. The underlying medical
malpractice lawsuit ... was approved by the Greenville Court of Common
Pleas. It appears that this is an effort ... to relitigate civil
disputes which have long since resolved,” Rushton wrote.
A Bon Secours spokesperson declined to comment.
“Consistent
with upholding patient privacy and out of respect for the legal
process, we are not able to provide comment on pending litigation,” Bon
Secours spokesperson Jennifer Robinson wrote to The Epoch Times.
Five of the defendants have filed defamation lawsuits against Hulsey and others involved.
Rabon,
a Greenville lawyer, accuses Hulsey and his colleagues of “Lazy,
sloppy, greedy and self-serving lawyering—resulting in baseless and
libelous accusations impugning the character of a veteran lawyer with a
sterling reputation.”
Probate Is an Equity Court
Critics of guardianship say probate court insiders use the legal system to get rich.
In
most states, the probate court is an “equity court.” Probate judges
have greater latitude in their rulings since they divide property, rule
on child custody, determine a person’s ability for self-care, and other
issues not clearly defined in the law.
And since they are local courts, federal courts have no jurisdiction to hear appeals.
Law
enforcement generally will not investigate complaints against
guardians, as they are considered civil matters. Instead, they are
directed to the court that appointed the guardian.
“Because
[probate court] has no oversight, because there [are] no penalties for
this function, it becomes an environment that serves insiders at the
expense of the law and the public,” Black said.
Paul Cook, a Los Angeles lawyer, was shocked at how the probate court operated.
“They’re basically not following the rules,” Cook told The Epoch Times.
Since
2016, Cook has held a durable power of attorney for his father, who has
dementia. Cook and his brother share the responsibility of caring for
their father.
Attorney Paul Cook walks with his father, Kwan Whan Cook, at Lacy Park in San Marino, Calif., on Nov. 26, 2024. John Fredricks/The Epoch Times
Cook
said a woman secretly married his father in 2012 and began selling his
real estate holdings. In 2021, Cook was able to have her ruled as an
elder abuser in court, limiting her authority over the elderly man.
In
April 2024, he learned she was petitioning the probate court for the
conservatorship of his father. Cook went to court to oppose the
conservatorship, an experience he described as “horrible.”
 |
Retired Judge William P. Barry, Exclusively added
for this-republication. |
Under
California law, a party in a legal action may peremptorily challenge a
judge if the party believes he will not get a fair and impartial
hearing. The challenge can be written or oral and the judge is obligated
to recuse from that case.
According to court documents, Cook, as
his father’s attorney, attempted to challenge Judge William Barry. Cook
was surprised by Barry’s reaction.
Barry told Cook he would not
accept the challenge and then issued orders to fine Cook $1,500 and to
self-report to the state bar because he had refused to let a
court-appointed lawyer interview his father.
Cook appealed
Barry’s rulings, and the Court of Appeals for the State of California
rescinded Barry’s orders and accepted Cook’s challenge.
‘Following Their Own Rules’
“A
number of other attorneys and activists have told me that [probate
court is] kind of its own little world,” Cook told The Epoch Times.
“They’re
following their own rules, and people on the inside track are these
probate-appointed attorneys, and they do not give outside attorneys a
fair shot at this.”
Attorney Paul Cook stands in Lacy Park in San Marino, Calif., on Nov. 26, 2024. John Fredricks/The Epoch Times
Sandi Cobianchi of Irvine, California, told The Epoch Times that she knows how it feels to be ignored by a judge.
The
Orange County woman was trying to contact her mother, Bertha Bernal,
but claims her brother and court-appointed guardians denied her.
Cobianchi said Probate Judge David Belz barely glanced at her filings.
“I’m the face of the average family member who has fought for their loved one to no avail,” Cobianchi told The Epoch Times.
Cobianchi’s brother, Michael Bernal, is now estranged from his three siblings.
Bernal said guardianship became necessary when the family could not agree on their mother’s care.
He
said the point of contention began over where she would spend her final
days and branched into her finances and how the adult children behaved
when visiting their mother.
Cobianchi said she had placed her in a facility because her mother was happy there.
Bernal said the facility was unlicensed and could not guarantee adequate care for the 90-plus-year-old Alzheimer’s patient.
Bernal had power of attorney for his mother, so he moved her to a licensed care facility.
Family Conflict Leads to Court
“That
was really the crux of the issue. My sister didn’t want her where I
wanted her, even though ... it was my choice because my mother had put
me as power of attorney,” Bernal told The Epoch Times.
The family tried mediation but failed.
According
to court documents, in March 2015, Bernal petitioned the Superior Court
of California, Orange County, for conservatorship.
Bernal said the only aim was to ensure his mother got adequate care. He acknowledged that the process drained her estate.
“The
courts get involved ... and the attorney hires an attorney to help an
attorney, and before you know it, you’re paying four or five attorneys
big money,” Bernal said. “It’s a money grab.”
Court records state
that the guardians and health care workers were hindered in their duties
by the conflict between Cobianchi, Bernal, and their siblings over
their mother’s care and finances.
“The acrimony between her children seems to have caused Bertha’s mental cognition to decline,” the court documents state.
Mark and Sandi Cobianchi hold photos of Sandi's mother in Lake Forest, Calif., on Nov. 27, 2024. John Fredricks/The Epoch Times
Cobianchi
accuses Bernal and the guardians of intentionally isolating her mother.
She said she had merely questioned what she considered substandard care
for her mother.
“If standing up for my mother is disruptive, then I’m disruptive,” she said.
Bernal said he was ensuring that his mother received proper medical care from licensed professionals.
Bernal’s power of attorney was eventually removed as the court took authority over his mother’s affairs.
Unlike
his sister, he was able to maintain contact with his mother because he
followed the court’s orders, he said. Bernal said he didn’t like
following the orders, but he had no other choice.
“I’m not 100 percent behind [the guardianship]. I played along like I had to,” Bernal said.
Cobianchi
said guardianship is designed to keep wards under control and ensure
everyone appointed by the court gets paid. It has little to do with
protecting people, she said. According to Cobianchi, the damage extends
beyond the finances.
“What about humanity? What about human beings?” Cobianchi asked. “We didn’t get to talk to my mom at all in the end.”
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