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Protection or Exploitation?

In the last year, Texas probate courts approved more than $6 million in payments from private estates to court-appointed attorneys, guardians and physicians, in many cases depleting funds left to care for incapacitated people. Critics say the practice amounts to destroying the village in order to save it. Probate judges say they're simply making sure people who can't defend themselves have proper representation.

Scherry Levi with her mentally disabled nephew Deartis Preston in Preston's home in Bay City.

When Doris Preston died, the former schoolteacher left behind a small estate, no will and a single heir: her adopted son, Deartis, a mentally disabled 52-year-old she’d raised in her Denton home.  

Doris’ close-knit siblings say they rallied around their nephew like they had for a lifetime, bringing him to Bay City to live with the family and using part of the inheritance to purchase a house for him two blocks away. But when they went to probate court to iron out the details of the estate, their plans disintegrated.

A Denton County probate judge determined Deartis needed a court-appointed guardian and attorney to advocate for his interests. Those appointees argued that the money left in the names of Doris’ siblings should rightfully belong to Deartis, and that her siblings were making poor financial decisions on his behalf.

In the five years of legal wrangling since Doris’ death, the court has approved payments of nearly $450,000 to these appointed officials, private attorneys for the family say, depleting the amount of money left to care for Deartis.

“We went innocently into probate court so we could go on and take care of the family,” says Michael Preston, Doris’ brother. “Instead, we got the most corrupt thing I’ve ever seen in my life.”

Gretchen Benolken, Deartis’ original court-appointed attorney, says Doris' siblings brought the charges on themselves by consistently failing to turn over required documents and to comply with court orders. By state law, Deartis is the only heir of Doris' estate, Benolken says, and she had no choice but to advocate for him when his family spent — or in some cases, she says, squandered — funds that rightfully belonged to him.

“All along the way, we tried to make settlement agreements, to make offers, and they refused to change their view of how assets should be used,” Benolken says. “They were the side that would not agree.” These disagreements led a judge to approve $215,000 in legal fees for Benolken; as of April, half had been paid.

Texas’ guardianship laws are designed to protect incapacitated people from abuse, neglect or financial exploitation. Judges can appoint professional guardians, attorneys, even physicians to examine them, if they think it’s in the ward’s best interest — and many do.

If the wards are indigent, the county generally pays these appointees’ legal bills; if the wards aren't indigent, they're responsible. With no limit on billable hours or rates charged and approval of the fees left to judges, these legal bills can grow to hundreds of thousands of dollars, especially when families fight back or fight with each other.  

Benolken’s fees aren’t uncommon. In the last year, Texas probate courts approved roughly $6.4 million in payments from private estates to court-appointed attorneys, guardians and even physicians, according to records kept by the state’s Office of Court Administration. Court-appointed guardians alone were paid a combined $3 million out of private estates in the last year, including one guardian for an incapacitated Houston man who was paid $177,680 from his estate. In some cases, appointed attorneys have charged up to $300 an hour, nearly bankrupting the person the court was supposed to protect.

Opponents say the practice is despicable — and amounts to destroying the village in order to save it. They say anyone can initiate guardianship proceedings, including a disgruntled employee or a money-grubbing neighbor. Once the judge appoints guardians, attorneys and physicians — sometimes, opponents say, up to eight appointees at once — wards are responsible for their legal bills and, if they’re found incapacitated, the bills of the person who filed the guardianship proceedings, too.

“Once the probate court gets a hold of it, it’s just an opportunity to spend the incapacitated person’s money on court-appointed lawyers,” says Robert Morris, a private attorney in Denton handling the Preston family’s appeals.  

Probate judges call the theory that they’re appointing attorneys for no reason completely ridiculous — they say they’re simply making sure people who can’t defend themselves have proper representation. And they argue it makes perfect sense for the people who file for guardianship proceedings to have their legal bills paid by the ward’s estate. Otherwise, many of them wouldn’t have the financial resources to expose abusive or exploitative scenarios.

These judges say the real problem is that warring families drive up legal bills by endlessly litigating guardianship and probate cases, knowing full well they can get many of their expenses paid for out of the estate. “These cases usually come as a result of a pre-existing, dysfunctional family situation, compounded by the onset of incapacity, plus some sort of allegation of abuse and exploitation,” says Denton County Probate Judge Don Windle, whose court heard the Preston case before it went on to an appeals court. "Many times there is no alternative in place; the court has a duty to look into them.”

Michael Preston and his sister Scherry Levi say they’d understand if they were abusive or neglectful. But Michael, a vice provost and political science professor at the University of Southern California, and Scherry, a former schoolteacher and Deartis’ primary caregiver, say they’ve provided financial and emotional support for Deartis for his entire life. Their only goal after Doris’ death was to give Deartis — the biological son of another mentally disabled sibling they care for — a smooth and safe transition, and they’ve continued to do so despite being sued by Deartis’ appointed attorneys. 

Those attorneys have never suggested that Doris' siblings aren’t good caregivers, or that they don’t have Deartis’ best interests at heart. But they say that the way the family managed its finances before Doris' death — using their combined resources to care for not just Deartis but other incapacitated or struggling relatives as well — no longer works. The law says that when people die without wills, their estates pass to their heirs alone, and in this case, only Deartis qualifies. “The fact that they had a methodology to handle this within the family before doesn’t change the law,” Benolken says. “I’m required to follow the law. And in this particular case, all of the assets of the decedent were for [Deartis’] benefit only.”

Michael Preston says that if the court was really interested in Deartis’ financial security, it would’ve left the family alone. He’s already spent $150,000 of his own money on legal fees to defend himself and his siblings. Since other funds that were meant to support Deartis are off-limits, Michael says he’s paying to keep the family afloat, too.

“They’ve frozen our money. They have us paying for his attorneys. All the while he’s living in the same house, with the same big lawn, happy as can be,” Scherry Levi says. “I pray no one has to go through what we’re going through.”

Lawmakers who heard loud and clear from families like the Prestons at a recent legislative hearing say they’re considering changing how fees and expenses are paid from a ward’s estate. Virginia Hammerle, an attorney with the Hammerle Finley law firm in Denton who spoke at the hearing, said that in Denton County’s probate court, the average payment to appointees in estate-paid guardianship cases is about $6,900 — compared to $1,800 in county-paid guardianship cases where the ward is indigent.

But Travis County Probate Judge Guy Herman, the presiding probate judge in Texas, says the people who want to complain about high fees “ought to look in the mirror.” It’s not the court-appointed fees that are the problem, he says — it’s the family members who exacerbate them because they won’t stop litigating. If judges were allowed to assign legal fees to one party or another in probate cases, as opposed to just paying them all out of the estate, everyone would be better off, Herman says.

“If the court could say to one party, ‘You pushed this case to a point where it cost $100,000 in legal fees, so you ought to bear your own fees,’ that would stop people from doing some of this litigation,” he says.

Meanwhile, families stuck in guardianship battles say they have no choice but to fight because of what they’re up against in the courtroom: a system, they allege, in which judges hand over lucrative guardianship cases to their attorney friends.

A few years ago, The Dallas Morning News reported that Windle, the Denton County probate judge, persuaded county commissioners to pay for a guardianship program while his then-wife was working to start a guardianship company. She was awarded the contract for the program. The State Commission on Judicial Conduct reprimanded Windle over the arrangement.

A couple of years before, Windle placed two elderly sisters with a large estate under court-appointed guardianship, the Morning News reported, only to have one of them re-write her will for the first time in four decades to give Windle $50,000 and his then-wife — the soon-to-be guardianship program contractor — $100,000. (By the time the elderly woman died, Windle and his wife had divorced.) Windle gave up claim to the money, saying he had no idea he’d been written into the will.

Windle calls these insinuations of “cronyism” untrue and says reporters investigating the cases “disregarded material facts.” He says guardianship cases have become a lightning rod in recent years — but that any theory that probate judges are running roughshod over estate plans or unnecessarily appointing attorneys is “unequivocally not true.”

“People want to say, ‘The court came in, got in our family’s business, depleted our estate,” Windle says, noting that in many of these cases, families haven’t done effective estate or disability planning. “These things are sad, they’re tragic, but you have to look at those statements for an agenda before you take them at face value."

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