'More Art' Than Science: Incapacity Findings Prone To Abuse

By Cara Bayles | July 11, 2021, 8:02 PM EDT

The conservatorship of pop star Britney Spears has drawn fresh criticism to "incapacity" — a designation that's part medical diagnosis, part legal determination, and can strip people of their rights to make their own financial and health care decisions. (Frederic J. Brown/AFP via Getty Images)

In the summer of 2018, four years into his guardianship, Doug Keegan kept breaking into his own house. He walked eight miles from his senior living facility to retrieve his bicycle from his Orlando home. He rode back to get suits to wear to his court hearings. He was also trying, he told Law360, to reestablish his residency there.

At first, he smashed the back window easily and climbed in, he said, but his guardian kept fixing it with thicker glass. So he used a brick. Then he "javelined" the window with a 10-foot pole, he said. He broke in six times, according to court records.

Some of these break-ins ended with him being detained under the Baker Act, a Florida law allowing for temporary detention of people with mental illness. He told Law360 he'd be placed in a psych ward for about a week, and during one of those stays, his guardian sold his house.

Keegan, who had struggled with alcoholism for decades, was put into guardianship at the age of 57. His brother had introduced him to a guardianship attorney, who filed a petition of incapacity in probate court in October 2014, claiming Keegan's memory and ability to care for himself were slipping, and noting that in 2012, Keegan drank so much his kidneys shut down and he was in a medically induced coma for 30 days.

Keegan suspects his brother was after his money, and was disappointed when Keegan married in September 2014. Keegan's wife had immigrated to the United States from Kenya, and he suspects his family's intervention — they also claimed his wife was financially exploiting him — was fueled by "racial bigotry." When Keegan's family introduced him to the guardianship attorney, Dean Turman — who did not respond to a request for comment — Keegan says he didn't realize what they had in mind.

"This guy Turman shows up at my house, he really came there targeting guardianship, and what he really wanted was access to all my financial data and my health records," Keegan told Law360. "My brother and my mother were begging me to have a lawyer protect my assets. I thought it was a waste, but I was just trying to keep them from whining so much. I didn't see any harm. I said, 'Well, what's the worst that's going to happen?'"

For seven years, Keegan fought the plenary guardianship that stripped him of his rights to make his own health care and finance decisions, arguing he'd been fraudulently declared incapacitated. In April, after an eighth doctor's examination, he was found capable of managing his own affairs. But in the interim, about $300,000 of his savings were spent on attorney and guardianship fees, according to court filings.

"They've robbed years of my life, they've stolen my house, my car, chased my wife away, broke up my marriage. They've stolen so much from me," he said.

Keegan's entire case hinged on "incapacity," a legal finding that in Florida is based on the assessment of three examiners, one of whom must be a doctor. Incapacity can be based on a mental health assessment, as was the case with Britney Spears' conservatorship, or a diagnosis of a degenerative disease like Alzheimer's, as was true of disgraced trial lawyer Tom Girardi. A medical professional can make the assessment in the span of an hour, even though people's functionality can wax and wane depending on medication, support, or even the time of day.

But the effects of a finding of incapacity can be long-lasting. It can mean that a person loses control over their own financial and health care decisions. It can also prevent someone from driving, working, voting, marrying who they wish, or pursuing their interests in court.

And the standard for stripping a person of those rights is vague, according to Dr. Sam Sugar, an internal medicine specialist who served as a probate court medical examiner for several years, and is the founder of Americans Against Abusive Probate Guardianship.

"The term 'incapacity' does not exist in the medical literature," he told Law360. "If you ask me what is the definition of incapacity, it's just about anything you want it to be. It could be anything from being in an absolute coma to not being able to find your car keys."

An estimated 1.3 million adults and about $50 billion in assets are under the control of guardians, according to the National Center for State Courts. And while exact national statistics on guardianship and abuse are hard to come by, older adults are particularly vulnerable to financial exploitation, according to data from the National Adult Maltreatment Reporting System, a federal abuse tracker.

For the past several years, the elderly have made up the lion's share of financial exploitation reports, with adults older than 70 accounting for 66% of such cases in 2019, according to NAMRS.

And with the number of adults older than 85 expected to more than double between 2018 and 2040, growing from 6.5 million to 14.4 million, that problem could become more widespread.

"Financial exploitation is a very real concern for older adults, especially older adults with resources," according to Syracuse University law professor Nina Kohn, a distinguished scholar in elder law at Yale Law School's Solomon Center for Health Law and Policy. "Unfortunately sometimes the legal tools meant to protect older adults can be used to exploit them."

'Everything Right' Isn't Always Enough

Even people who plan ahead can end up in court.

Gerald Halpin amassed a fortune as a real estate magnate in the Washington, D.C., area, and counted former Solicitor General Ken Starr and former Vice President Dick Cheney as his friends. He was considered the father of the beltway community of Tysons Corner.

Abusing The System

by the numbers

Statistics on financial abuse by guardians are hard to come by, but over the past four years, a statewide investigation alliance among Florida's clerks of courts has looked into abuses in 41 counties across the state.


investigations were completed, most looking into cases that contained several allegations


of the 1,505 allegations lodged were found to be true


was mishandled in those proven cases


guardians had their registrations permanently revoked

Source: Clerk of the Circuit Court & Comptroller, Palm Beach County, Florida. Statistics as of June 14, 2021.

But by 2013, he was approaching 90, and began preparing for the inevitable. He put several assets into trust accounts. He moved to Wyoming, where there were fewer taxes. He signed a power of attorney that would make his wife, Helen, his attorney, Christopher Hawks, and his accountant, Shawn Evans Hawkins, his "attorneys-in-fact" should two doctors deem him incapacitated.

Power of attorney — a document by which a person can sign over the right to manage personal, health care, and financial decisions to an agent — is considered an important legal tool in life planning. It can go into effect immediately, or be "springing" — triggered by some event, like a finding of incapacity — as was the case with Halpin. A grantor can choose someone they know and trust and put some limitations on their powers, according to Kohn.

"Powers of attorney can be a wonderful tool for promoting self-determination, for making sure people's affairs will be handled if they need help, and for avoiding guardianship," she said. "At the same time, they are extraordinarily powerful and can be a helpful tool for unscrupulous agents. The problems are so significant, some have referred to them as 'a license to steal.'"

In spite of all his planning, Halpin's assets were the subject of four different lawsuits in his final years and after his death, including several alleging undue influence.

One suit, filed in 2016, raised the question of who controlled the majority voting stock for World Resources Co., a metal salvaging operation owned by Gerald Halpin and his son Peter. Gerald had been diagnosed with dementia, and letters from two doctors in 2015 said he was "not capable" and could "not effectively manage his property, personal, or financial affairs." Peter sought to get his father off the company's board, according to court filings.

Litigation filed by Hawks and Hawkins, suing on behalf of Gerald as his attorneys-in-fact, asked a Wyoming state court judge to delay a board meeting at which Peter was planning to oust his father. They said they were representing Gerald's desire to sell his WRC stock so he'd have cash to pay off debts, give money to his children, and donate to philanthropic causes.

Gerald's attorneys-in-fact asked the judge to give him enough "time to meet with licensed physicians for purposes of rescinding a prior determination of incapacity." In a court filing, Peter shot back that "regardless of the absurd allegations, dementia is not reversible."

Eventually, two new doctors certified that Gerald was competent after all, and his attorneys-in-fact sought to drop the lawsuit.

Halpin had never wanted to be declared incapacitated in the first place, according to evidence that came to light in an undue influence lawsuit filed by Gerald's out-of-wedlock daughter, Stasia Reisfield, who sued Hawks and Halpin's son, Michael, claiming they blocked her from receiving real estate her father had promised her.

According to his agents-in-fact, Gerald "decided to ask his wife, attorney and accountant to assume responsibility for the day-to-day administration of his affairs," and sought the letters of incapacity himself.

But discovery in the Reisfield lawsuit suggested otherwise. It revealed that Michael, Hawks and Hawkins debated about how to break the news of his incapacity to Gerald. In an email to Hawks the day after he received the second doctor's letter, Michael said that his father wouldn't accept the doctors' opinions, and would either change his attorneys-in-fact under the power of attorney, or "sue us all." In response, Hawks suggested possible guardianship.

Hawks later testified that he never thought the power of attorney was properly triggered in the first place, because neither of the two doctors were board-certified in neurology, nor was there a court ruling on Halpin's incapacity. But Hawks said in a deposition that Gerald had "acquiesced to leaving the power of attorney in place."

Court filings allege Hawks continued to act as Halpin's agent even after two doctors found he was capable of managing his affairs. Hawks declined to comment on pending litigation.

During a July 2016 visit with Reisfield, her husband surreptitiously recorded Gerald telling his daughter that he'd put most of his assets into trusts, and that "some of those trusts have hired attorneys to fight me."

"They're now saying I'm mentally not capable," he said in the recording. "So they got attorneys, and it's between 10 and 15 attorneys ... battling over stuff that's absolutely nonsense in my mind."

It's not uncommon for a person to be declared incapacitated and then have their capacity "restored," according to Rick Black, founder of the Center for Estate Administration Reform, who was moved to activism after his father-in-law became mired in the guardianship system. Nor is it unusual for someone who's done extensive estate planning to end up in court.

"You can do everything right and end up in this system," Black said. "Anyone can be abused by this system no matter what your estate documents say."

More Art Than Science

Keegan and his guardian sparred over which doctors would evaluate him.

Keegan told Law360 that he was initially declared incapacitated because Turman and his first guardian "brought in a doctor to completely rig it."

H. Kyle Fletcher, the attorney for one of Keegan's subsequent guardians, said that Keegan's attorney, Leslie Ferderigos — who could not be reached for comment — sent the judge a proposed order approving her preferred doctor to evaluate Keegan without conferring with Fletcher. That doctor was not on a court-approved list.

The evaluation that found Keegan competent and got him out of guardianship was "sophomoric," Fletcher told Law360.

"All he really did was give him the mini-test. He passed it, but all kinds of people pass it. It doesn't mean they don't have psychotic issues or frontal lobe problems," Fletcher said. "At the hearing, I asked [the doctor], 'Doesn't it matter to you that he's been diagnosed with [frontal lobe damage]?' He said, 'It's how he stands in front of me that day.' That's not a proper diagnosis, but the judge thought it was."

Fletcher also noted that Keegan had since been arrested for writing an email threatening to slit Fletcher's throat and that of a probate judge. He said that Keegan's only defense in that criminal case might be a finding of incapacity.

Keegan was evaluated by at least eight medical professionals over the course of his guardianship saga. Based on their assessments of his competency, three recommended no guardianship, two recommended limited guardianship and two recommended plenary guardianship.

One said Keegan's home was a mess, noted a stain on his shirt, and reported he was in need of a shave. One said he was "psychotic and delusional." Another said he performed "above normal" on cognitive tests — when asked to name presidents who'd served during his lifetime, Keegan "started with JFK and recited every president in chronological order to the present."

In December of 2014, two different doctors evaluated him on the same day. One said Keegan's prognosis was good if he sought alcohol treatment, adding that "his drinking, choices, and activities [didn't] rise to the level of guardianship." The other doctor recommended full guardianship, stating, "while this man initially presents himself well, his history of questionable decisions and tendency to minimize his problems ... significantly impair his ability to make informed decisions in all areas of his life."

Assessments of competence aren't only subjective; they exist in a space that straddles the medical and the legal, according to Sandra Glazier, an estate planning attorney at Lipson Neilson and author of the book "Undue Influence and Vulnerable Adults."

"If you go to a medical professional, they're not a lawyer, they don't understand nor do they distinguish between levels of capacity," she said. "We're getting a little more astute about the science. But it still is more art when it comes to these psychological issues than a black-and-white determination sometimes."

That may have been the case with Gerald Halpin. It wasn't only medical professionals who couldn't agree on his ability to make decisions.

James McNair of Reed Smith LLP, who helped Halpin write his estate planning documents, said in deposition testimony that even in the final years of his life Halpin was "brilliant," and "knew exactly what was going on." A doctor who assisted in the second round of evaluations that found Halpin capable testified that she wasn't convinced Halpin had lost his decision-making capacity in 2015, and that "his rights may have been terminated way too early in [the] process."

But other evidence suggested that he was slipping.

Emails between his children revealed that as his business responsibilities waned, he grew interested in sweepstakes scams, was spending thousands of dollars on them, and at one point was planning to fly to London to collect his winnings. His daughter Christina wrote her brothers an email saying she worried their father's "short-term memory [was] shot." In September 2015, he was prescribed Donepezil, an Alzheimer's medication.

Halpin's liminal capacity is not so uncommon among older adults, according to Glazier.

"Somebody's capacity to engage in a transaction can fluctuate. Some individuals with Alzheimer's may have lucid moments or days when they function pretty darn well and others when they do not," she said. "So when you talk about removing their rights, I always say: What is the least restrictive approach we can take?"

Possible Reforms

When the National Guardianship Network, a coalition of industry groups, held its 10-year summit in May, it, too, issued a recommendation allowing for more self-determination.

"The summit recommended to in essence ban plenary guardianship in favor of guardianships that are specifically tailored to the individual, to ensure each individual is able to exercise autonomy as much as possible," according to Anthony Palmieri, president-elect of the National Guardianship Association, one of the network's 12 member organizations.

The summit also endorsed the Guardianship, Conservatorship and Other Protective Arrangements Act, legislation that the Uniform Law Center has been promulgating since 2017.

The act does away with the concept of capacity altogether. Instead, the bill's language recommends that courts "make particularized findings about the adult's individual needs in light of what the adult can and cannot do." It even strikes common probate court terms like "alleged incapacitated person," which are considered stigmatizing and can bias judges, according to Ben Orzeske, chief counsel at the Uniform Law Center.

The uniform guardianship act encourages the use of less restrictive solutions, particularly supported decision-making, which allows people to maintain control over their own health care and finances, but have someone to talk through those decisions with.

Slow Support for Reforms

Since it was first proposed in 2006, the Uniform Law Center's Power of Attorney Act has been adopted in 29 states, and legislation is pending in Washington, D.C., and Massachusetts. An act to reform state guardianship systems has not caught on as quickly — since it was promulgated in 2017, only two states, Washington and Maine, have adopted the uniform bill in its entirety.

  • Power of Attorney Act enacted in
    2007 2021

  • Introduced in 2021
Source: The Uniform Law Center

But in the four years since it was drafted, only two states, Washington and Maine, have adopted it. Part of the problem, Orzeske says, is that the oversight the law calls for costs money.

"The uniform act includes a requirement for filing annual reporting with the court, and someone's got to read those and determine whether or not the guardian's report indicates they're in compliance with the court's original order," he said. "If the court has no current monitoring system in place, that would certainly require some additional hours or personnel."

The bill does include some no-cost safeguards that can aid courts in keeping an eye on guardians, he said, like provisions that require family members be looped in on court filings, annual reports, and changes in health status. Orzeske says that five other states — Nevada, New Mexico, Iowa, Mississippi and South Carolina — have passed the parts of the act that don't call for additional spending.

The Uniform Law Commission also has a Power of Attorney Act, which has been enacted in 29 states since it was drafted in 2006. It seeks to curb agents' abuse of power by requiring that they keep detailed financial records, and by granting legal standing to a "broad spectrum of people who might be able to detect abuse," Orzeske said. And it requires that an agent who violates the act must pay restitution.

Some advocates would like to see more done to guarantee people's rights. Black wants states to allow people who have been deemed incapacitated by a district court to be able to appeal not just a probate judge's order, but have the entire case heard de novo by a jury. No state has adopted that, he says.

Having the case reviewed by a jury will "get to the bottom of the facts, the material evidence, the statutes and the estate documents and their legitimacy," Black said.

Federal legislation has also sought to deal with guardianship nationally, after a 2018 report by the Senate Aging Committee found that better monitoring, promoting alternatives to guardianship, and the passage of the uniform act, as well as state and federal data collection would improve the system.

In 2019, Sens. Susan Collins, R-Maine, and Bob Casey, D-Pa., filed legislation that would create a national database of guardian statistics and background check information as well as a repository for training, research and best practices resources. The bill did not pass and has not been refiled this session.

Data collection seems to be a need that everyone can agree on, from guardianship's detractors to its supporters.

Palmieri, of the NGA, serves as an independent investigator with the Clerk of Court's Office in Palm Beach County and as chief guardianship investigator for the Florida Inspector General's Office. He's pushed for more data collection, he said, but has "not been able to find the statewide funding" to put it in place.

"With a touch of a button, I should be able to tell you basic demographic information for the entire system," he said. Instead, when he was investigating Rebecca Fierle, an Orlando, Florida-based guardian facing a criminal trial for placing do-not-resuscitate orders on elderly clients against their wishes, it took him four full days to figure out she was the guardian to 208 people across 19 counties.

"There's no way to make sure people are OK if you don't count them," said Pamela Teaster, director of Virginia Tech's Center for Gerontology, who testified before the Senate Aging Committee in 2018. "You can track your shirt coming up the road, and we're not tracking human beings."

Though Dr. Sugar thinks the guardianship system is intractably broken because "there is just way too much money involved," he, too, would like to see more complete data on who is in that system.

"That's the reason you can get away with this," he said. "You only count what you care about."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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