ATLANTA — Many aging loved ones have plans for when they are no longer able to make decisions for themselves, but are those plans legally binding?
Advance directives -- legal documents like living wills and power of attorney -- tell your family, doctors and the court your plans for end of life care.
But Channel 2's Dave Huddleston spoke with families who said they lost custody of their loved ones because those advanced directives weren't honored in probate court.
“My mother made it clear who she wanted to take care of her and where she was going to live for the rest of her life,” Doug Franks told Huddleston.
In his mother’s advanced directives, 94-year-old Ernestine Franks said she wanted to stay in her Pensacola, Florida, home, and have her son, Doug, be her guardian when she could no longer make decisions for herself.
Doug Franks, who lives in Austell, already had power of attorney.
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But after Ernestine Franks was confronted by a scammer while home alone, older brother, Charles Franks, wanted mom to move near his home in New Orleans. He said he contacted his mother's trust who suggested a private guardianship company step in.
“He stated this was the biggest mistake he's made in his life,” Doug Franks said.
Charles Franks also spoke to Channel 2 and explained his regret about the decision.
The brothers' dispute landed in court.
In August 2012, a Florida probate judge said Doug Franks was unsuitable and unfit to act as guardian because of the dispute.
"We got in trouble because we wanted the best and we had different opinions what was the best for our mom," Doug Franks said.
Ernestine Franks' advanced directives, which included declaring Doug Franks durable power of attorney, designated healthcare surrogate and future guardian, were voided.
A private guardianship company, Gulf Coast Caring Solutions, took control of Ernestine Franks' well-being, and Synovus Bank controlled millions of dollars in her trust.
“It was sad,” Doug Franks said. “The entire way, I drove back thinking I let my mother down, and she's never let me down.”
According to court records, the sons' visits with their mother were limited, and mostly supervised.
Gulf Coast Solutions asked the Franks brothers to not contact their mother three weeks after the guardianship was finalized so Ernestine Franks could establish a routine and bond with her caregivers.
Gulf Coast Solutions and Synovus gave up their rights to the Franks’ estate and Ernestine Franks in November 2014, citing a challenging relationship with the Franks brothers.
A Florida Judge appointed CPA J. Alan Kohr as her guardian and conservator. According to court transcripts, Kohr had been court appointed to serve as guardian or trustee in Escambia County, Florida, 46 previous times.
Doug Franks said guardians spent thousands from Ernestine Franks' trust on food, personal care and fighting the brothers in court.
“It's a dark cloud that's over us all the time,” Doug Franks told Huddleston.
According to Escambia County Court system, guardianship cases are not handled solely at the discretion of the judges.
“Like all other cases in the judicial system, there are statutes, rules and other legal authority that apply and judges use their discretion and judgment within the parameters of the legal authority,” Susan A. Woolf, general counsel for Escambia Courts, told Channel 2 by email.
“Yes, they can override the advance directives,” elder attorney Danielle Humphrey said.
Humphrey said Georgia probate judges rarely void advance directives, and private guardianship is nonexistent in Georgia, but can effect Georgians with loved ones in other states.
In places with a high retirement population -- like Florida -- adult guardianship is big business.
“Possession is nine-tenths of the law and unfortunately, once they become under guardianship, they're like your child,” Humphrey said.
When a loved one lives out of state, it puts them at risk.
She said private guardianship companies, and individuals, can take advantage of an isolated elder.
"They're in it for the money. It's a business, so they're going to treat your mother, or your father, like a business," Humphrey said.
Humphrey, and other experts, said living far from an aging loved one puts them at great risk. They also said an interfamily dispute often leaves probate judges at a loss as to how to deal with the aging relative.
According to the National Guardianship Association, nearly 3,000 jurisdictions regulate guardianship nationwide and everyone is different.
While they stressed there is a great need for guardians and many do a great service, but not a lot of information on guardians nationwide aren’t tracked, so abusive practices, even the number of guardians, is unknown.
Channel 2 spoke to other families who say their loved ones' advanced directives were voided by probate judges, but most guardianship records are closed so it is hard to know why a judge thought a company would be a better guardian than the family member named in the advance directive.
After a four-year fight, the Franks brothers said the guardianship company gave up, because the cash dried up. It was nearly $2 million.
The case went to mediation and the brothers were given guardianship of Ernestine Franks.
They consider it a blessing to have their mother back.
“I was lucky, I was lucky as hell,” Doug Franks said. “We're going to get her back. The key is to help other people, too, so this doesn't happen to them.”
Doug Franks has been working with legislators in Florida and families across the county to strengthen guardianship and probate legislation.
He told Huddleston he is now in the process of moving to Pensacola to be closer to Ernestine Franks.
Cox Media Group