When Phyllis Funke hit bottom, the court appointed a guardian to prop her up. The remedy is like prison, she said. But “at least in prison you have rights.”
When a caseworker from Adult Protective Services and a city psychiatrist entered her apartment on March 3, 2017, clipping the security chain because she did not answer the door, she was unraveling emotionally and physically, at risk of becoming homeless or worse. She had no idea what price she would pay for the intervention.
“I’ve been bullied, blackmailed and stripped of the things I need to live, including my money,” she said on a recent afternoon. “Everything has been taken away from me. I have no access to my bank accounts. I don’t have the money to pay for the medications that I’m prescribed. I don’t get mail. I can’t choose my own doctors.”
Ms. Funke, 77, has a master’s degree from Columbia University, a pilot license and — she believes — several hundred thousand dollars in investments, mostly an inheritance from her parents. She is a scuba diver, an avid reader and a global traveler. She has lived in the same cheap apartment for 41 years. If it were up to her, she said, she would be sailing in the Marquesas Islands in French Polynesia right now.
She is also, in the eyes of New York State, an “incapacitated person.” She has been deemed unable to manage her personal needs and property, or to understand the danger she had fallen into.
What started as a complaint about clutter grew to affect every aspect of her existence, including her right to make basic decisions about her life, own a gun or enter into certain legal contracts. Her appointed guardian, a former police officer, said he was unsure whether Ms. Funke had the right to marry.
“I feel as if I have absolutely no rights at all in the country in which I was born, and therefore in the rest of the world,” Ms. Funke said. She compared her situation to being in prison, then thought better of it. “It’s worse than incarceration,” she said. “At least in prison you have rights.”
If you have heard at all about guardianship for older adults, chances are that it has been about a predatory guardian who plunders the estate of a helpless older person. In New York, the poster victim is a Brooklyn judge named John Phillips, whose guardians sold off more than $20 million of his real estate and left him to freeze to death in 2008 in a facility unlicensed to treat people with dementia.
Last month, the United States Senate Committee on Aging called for massive reforms in the guardianship system, warning that “unscrupulous guardians” have used their position to get control of vulnerable people and then “liquidate assets and savings for their own personal benefit.”
When I started to look into guardianship, I expected to find many such clear-cut cases. In New York, anyone can petition to have someone declared incapacitated. A judge may then appoint a family member or a third party, usually a lawyer, to be guardian over the person’s physical needs, financial affairs or both. Critics of guardianship say these strangers have open license to raid their wards’ estates.
But as I met families in contested guardianships, more often the conflicts involved sibling infighting, with children battling for control of their aging parents’ assets, crying foul if the courts did not side with them.
A retired banker in Brooklyn, for instance, was placed under guardianship after two of her children accused a third of stealing from her. Now they are all in court.
On Long Island, a son was trying to keep his frail, blind mother at home, battling a daughter and a guardian who wanted to move her to an assisted-living facility. The son blamed his sister and the guardian and the judge and the court evaluator and a real estate broker.
On Manhattan’s Upper West Side, a mentally ill woman who was living with her mother became homeless after the mother’s guardian obtained a court order barring her from the apartment, because he said she was interfering with the mother’s care. These families, too, are in court.
Guardianship was where the breakdowns of modern life — broken families, broken health, broken finances and broken bureaucracy — tumbled together in a system that appeared to bring out the worst in people: secretive, confusing and run by lawyers, with extraordinary powers over vulnerable individuals. It was also the last defense for lives that had come undone.