Thursday, August 6, 2009

Conservatorship: A Scam Jammer's Last Resort

As I've noted in earlier posts, a small percentage of Sweepstakes Scam victims refuse to quit paying the bogus fees demanded by Jamaican fraudsters, despite all evidence to the contrary that by doing so, they will receive millions of dollars in return.

Because the odds of catching the perpetrators of Advance Fee fraud are slim, concerned family members of Scamblers (compulsive fake-fee-payers) have no choice but to try to stop the victim, whether the victim likes it or not.

Such was the case with my eightysomething father, who is a charter member of the Ornot tribe.

So resistant was my dad to our family's attempts to stop him sending money, that after exhausting every other alternative, we were forced to take legal action to protect my father from himself. Specifically, we petitioned the court to appoint a conservator, which is roughly defined as a "guardian appointed by a judge to protect and manage the affairs and/or the person's daily life due to physical or mental limitations or old age."

While the criteria for appointing a conservator may vary from state to state, I thought the similarities would be sufficient to make it worthwhile for me to walk you step-by-step through our family's journey of conservatorship.

1. We hired an attorney who specialized in Elder Law.

2. We obtained a written testimonial from my father's physician, that he was showing signs of declining cognitive function (without such preliminary proof, you're basically toast).

3. Citing the physician's testimony as evidence, our attorney petitioned the court to appoint a temporary conservator or guardian, to oversee my father's affairs.

4. The judge found sufficient cause to designate me temporary conservator, and made it official with Temporary Letters of Conservatorship, an important legal document authorizing me to take many of the steps necessary to protect my father against further financial loss.

5. The court appointed an attorney (called a Guardian Ad Litem, which we had to pay for) to represent my dad.

6. My father had to submit to a court-mandated psychiatric exam that I had to arrange, and our family had to pay for. It is ironic to say the least that my father was talking on his cell phone to the scammers less than five minutes before his appointment.

7. A private hearing (trial-like proceeding with only the judge, attorneys, and my father and I present) was held to determine whether my dad was an adult with an impairment, in need of a conservator.

8. I had to testify against my father, and undergo to a rigorous cross-examination by the Guardian Ad Litem, who did his best to discredit my testimony and have our documentary evidence (which consisted mainly of photocopies rather than originals) ruled inadmissible.

9. Despite the psychiatrist's assertion that my father was "high functioning and of above average intelligence," the judge wisely concluded (a couple of weeks later at a final hearing where he announced his decision) that my father was nevertheless impaired, because his irrational behavior and delusions of winning demonstrated a clear incapacity to exercise sound judgment in money matters.

10. The judge then ordered that an inventory be taken of my father's assets, to help determine who should be appointed permanent conservator of his finances. In our family's case, that turned out to be me - although in some instances, the court appoints a third party with a financial background, such as a bank official.

If there are any lessons to be learned from this (and I'm not sure there are), they are:
  • Seek conservatorship sooner, rather than later.
  • If possible, find an Elder Law attorney experienced in litigation (pleading your case in front of a judge at a hearing). Though it seems trivial, an inept litigator can make procedural errors that hurt your chances of a favorable outcome.
  • Whether they are temporary or permanent, Letters of Conservatorship compel money transfer services, banks, and credit card companies, to cooperate with you.
  • Document everything about the scam, that you can: Money transfers, checks, names, phone numbers, etc. Originals are preferable to copies.
  • Keep a journal of everything you do about the scam, both before and after obtaining conservatorship: What you did and when you did it; who you talked to, when you talked to them, what you talked about, and what the outcome was.
  • If local law enforcement authorities have cautioned your loved one about the scam, ask them to testify at the conservatorship hearing.
  • Don't expect the victim to thank you, for protecting them.
Personally, I would not wish on anyone the experience of having to testify against a parent, particularly in their presence.

Unpleasant as it was, however, I am living proof that anybody can do it, and that this difficult task is made easier, but not easy, with the backing of a support network. That, and the peace of mind that comes from knowing without question, that you are doing the right thing.

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