Unguarded

in Features

One summer afternoon in 2012, in Wethersfield, Connecticut, a police dispatcher named Sharon Imbert had just finished cleaning her brother-in-law John Fritz’s kitchen when she discovered a receipt for a $2,000 money order tucked into a basket of apples. A gift from Sharon, the “snack basket” doubled as an in-house mail drop: whenever John, who has cerebral palsy, received paperwork he could not understand, he left it there for Sharon to find. “What’s this?” Sharon asked John, holding up the pink slip. “Oh,” he replied. “Michael told me I had too much money.” 

Sharon pressed for details, more confused than alarmed. For thirty years, an estates lawyer named Michael Schless had managed John’s finances as his court-appointed conservator. John told Sharon that Schless had called him on the phone the previous week. Apparently, Schless had instructed John to mail him a money order in the amount of $2,000; John’s savings account, he said, was “too full.” Schless wanted to transfer the excess funds into John’s checking account at TD Bank.

Along with cerebral palsy, John has co-occurring physical and intellectual disabilities that limit his ability to live independently. When his mother died, he moved from her home to a subsidized apartment, and the Imberts assembled a team of home health aides to help him with chores and personal hygiene. An eternal optimist, John is “the type of person that wears rose-colored glasses,” Sharon said. In reality, he wears boxy, wire-rimmed glasses that slightly enlarge his eyes; the 70-year-old’s feathery brown hair shows only a few streaks of gray. He loves to swim, and spends the better part of each year looking forward to his two-week stint at Camp Harkness, a summer camp for adults with disabilities, by a lake in Waterford. Under water, where gravity’s pull is weaker than it is on land, he can move his limbs freely, and they obey his commands.

By the summer of 2012, John’s inheritance, once worth $270,000, including a mortgage and interest-bearing accounts, had inexplicably run dry. Before his mother died, she had carefully secured a trust fund for him “so that John would never have to worry,” Sharon said. But then, several months before the pink slip appeared in the snack basket, Schless cancelled John’s home health aides for lack of funds. Sharon and her husband, Jim—a burly man with a buzz cut and the calm that comes from decades in federal law enforcement—started visiting John’s subsidized apartment daily to cook and clean. Almost overnight, it seemed, John went broke, and no one could explain how. 

The Imberts, with John’s approval, filed a request for a change of conservator in December 2012. Jim replaced Schless, gaining access to his brother’s bank records. Over the next year, the Imberts spent their limited free time piecing together the paper trail that Schless had left in his wake. Each weekend, Sharon, who has close-set blue eyes, a sturdy build, and a firm handle on common sense, rose early. She hauled out a cardboard box full of files and settled into a chair at her built-in kitchen desk. 

“Every day I worked on this, there was a discovery,” Sharon told me, perched beside Jim on the stoop of their modest summer home in Niantic, Connecticut. “And every day, it got more horrible.” 

*

Conservatorship is a legal arrangement designed to protect the country’s most vulnerable adults. Hailed as an alternative to institutionalization and even as a means of preventing homelessness, conservatorship transfers the authority of a disabled person to a trusted family member or attorney. The legal ground for establishing this relationship is a finding of “incapacity”: when a judge deems an adult incapable of managing his or her own affairs, for reasons of disability, age, or mental illness, the state may appoint a conservator to take over. 

Nationwide, court-appointed conservators and guardians—the terminology differs by state—help manage 1.3 million lives and at least $50 billion in assets. In Connecticut, conservatorship is housed in probate, a system of specialized courts descended from the Orphans’ Courts of the American colonies that handle a wide variety of cases involving children, seniors, and adults with mental illness or intellectual disabilities. From colonial times, Connecticut’s probate courts inherited a scattered system—before a recent restructuring, there were 123 of them—and the power to act as a benevolent parent to those in need of protection or care. Paul Knierim, Connecticut’s former probate administrator who left the post in late August, described the responsibilities of conservators as “truly awesome.” “We are asking them to take on the well-being of an individual who, by definition, is unable to manage his or her own finances and personal care,” he said. “That is so big a set of duties that no person can take it lightly.”

Almost overnight, it seemed, John went broke, and no one could explain how. 

Yet Connecticut’s system and similar ones across the U.S., from Nevada to Florida, have proved ripe for exploitation. In Connecticut, as in many other states, there are no statutory requirements for becoming a conservator. The state’s probate courts do not conduct background checks, except on conservators serving indigent people, meaning anyone on public assistance or whose income is 125 percent or less of the federal poverty level. Even for those cases, the vetting is cursory. Probate administrators check disciplinary histories, but “as long as they have a law license,” Knierim said, attorneys can sign up for as many conservatorships as they want, provided the local probate judge approves the caseload—and the growing demand for conservators incentivizes judges to do so. In theory, once approved, an exploitative conservator could move between districts unnoticed: there is no statewide record of conservators who have been removed from their conservatorships because of misconduct or malpractice.  

According to the National Council on Disability, conservatorship “is often viewed as an issue impacting older Americans and not thought of as an important disability issue,” even though in at least eleven states, the legal procedure to impose a conservatorship on developmentally disabled adults is less rigorous than the equivalent procedure for the elderly. Some of those adults, like John, spend more than half of their lifetimes under conservatorship. When conservators abuse their power, the betrayal can be psychologically devastating and financially disastrous. Less calculably, the abuse of conservatorship erodes residents’ faith in the legal system. Last spring, after a Bristol attorney working as a conservator admitted to stealing more than $100,000 from her clients, presiding judge Vanessa Bryant Bryant called the public’s trust in the state “a silent victim.”                

*

A few weeks after Jim took over as John’s conservator, in 2012, the Imberts received a handwritten note from Schless, along with two bank checks and a Social Security statement. According to an affidavit, the checks, which constituted all of the money left in John’s name, totaled $10,473.87—just under 4 percent of the roughly $200,000 that Sharon calculated should have remained. 

Over the next few days, Sharon and Jim, police dispatcher and former federal agent, pursued leads. Jim requested copies of checks from the three banks where Schless had opened accounts for John. But he withdrew his request when he discovered that each copy would cost $1.50. The irony was not lost on him: John could no longer afford the records that would show where his money had gone. 

Sharon had better luck. At Wethersfield Housing Authority, the public housing agency that managed John’s subsidized apartment, she found ten years’ worth of records, including more than one thousand copies of checks. Back at her kitchen desk, Sharon leafed through the files. 

Auto insurance. That didn’t make sense: John couldn’t drive because of his physical disabilities. 

ATM withdrawals at Costco. Strange: John never used ATMs, and Schless didn’t buy him groceries. The Imberts did, and they didn’t shop at Costco. 

Florida Light and Power. John had never visited Florida. Wasn’t that where Schless, who was in his late seventies, moved after retiring from his legal practice? 

An AARP policy.

An online subscription to Fort Lauderdale’s Sun-Sentinel. Florida, again.

Three hundred and fifty dollars in overdraft fees. 

Another AARP policy. 

A withdrawal of $765, in Florida.    

In total, between 2009 and 2012, Schless had spent more than $10,400 using unauthorized checks. (The closeness of this amount, in stolen funds, to the amount of money left in John’s accounts was pure coincidence.) That didn’t explain the tens of thousands of missing dollars, but it was a start. 

To Sharon’s surprise, the records also showed deposits. Why would Schless put money back into the account from which he was stealing? She decided to cross-check the deposit records with other bank statements. 

As it turned out, withdrawals from John’s mutual fund account matched the deposits, to the cent. Schless had been using John’s checking account as his personal bank. When the account ran low, he withdrew money from John’s savings to replenish it. Sharon had finally solved the mystery of the pink slip in the snack basket: the records showed that shortly after Schless called John asking for a money order worth $2,000, he had deposited $2,000 in John’s checking account at TD Bank. So the pattern went: Withdraw from the savings account, deposit in the checking account, withdraw from the checking account, and, presumably, spend. Schless proved remarkably consistent.

Within three weeks of the $2,000 deposit at TD Bank, the money was gone. Sharon said, “He siphoned it all out.” 

*

As baby-boomers age and the number of mental health cases requiring conservators multiplies—in Connecticut, it has risen by more than 50 percent since 2012—so has the financial incentive for attorneys, or “public conservators,” to build larger caseloads. In 2016, then-probate administrator Paul Knierim created the designation “high-volume conservator,” also known as “contract conservator,” to provide a flat monthly rate of $86 per client to attorneys juggling more than forty conservatorships at a time. (Probate conducts criminal background checks on contract conservators.) “You can make a decent living if you mass-produce it,” John Keyes, who served as New Haven’s probate judge for thirty-two years before retiring in 2017, said of conservatorship. “It’s like selling enough hamburgers.”

I recently asked a pair of social workers about the on-the-ground effects of ballooning caseloads. Toshema Brooks and Nanteza Cohen formerly worked at New Haven’s Columbus House, a non-profit service provider for people experiencing or nearing homelessness. They described a pattern of disrespect, absenteeism, tardiness in paying bills, and outright verbal abuse by some conservators during their time there. The two social workers said they witnessed, in 2018, one conservator call Brooks’ client—a middle-aged man who struggles with untreated mental illness, depression, and substance abuse—“lazy” and “stupid” when the four of them met in the conservator’s office. Brooks recalled the conservator saying to her client, “I know you’re a drunk. Are you fucking retarded?” 

On the road back to New Haven after the meeting, Brooks pulled the car over to calm her client. He was sobbing, she said, and he threatened to kill himself. 

“Do we need to call 911?” she asked him. He shook his head. “We’ll get you another conservator,” she assured him. “We’ll report him.” 

In April 2018, I listened to Brooks tell New Haven’s probate judge about the incident in court; he immediately agreed to remove the conservator. But removals do not ordinarily enter a conservator’s disciplinary record, and the probate court keeps no master list of them—a “hole in the system,” Keyes said. As a result, the conservator in question—who, according to Brooks and Cohen, often complains about his large caseload—will continue to manage the affairs of Connecticut’s most vulnerable. 

*

The Imberts’ second question, after they discovered where John’s money had gone, was how Schless had kept his theft a secret. As they recall events, when they first told Newington Probate Judge Robert Randich about the missing money, he brushed them off, saying that he didn’t believe Schless would have stolen from John. (Randich declined to comment on his interactions with the family because probate judges are not allowed to talk about specific cases.) 

The Imberts hired a forensic accountant and returned to Newington’s probate court the next month. This time, Randich agreed that funds were missing from 2010, 2011, and 2012, but he declined to investigate earlier years, according to an affidavit. He ordered Schless to return about $36,000, but probate judges lack power to enforce their orders, so Schless never did. Randich chose not to refer the case to a state’s attorney, an option available to probate judges when they suspect a crime has taken place. 

“The system, as it’s set up, is highly dependent on the honesty of the people that serve within it,” Randich told me. He stressed how difficult it can be to detect fraud in a conservator’s accounting “when the numbers balance.” 

Sharon, however, maintains that anyone paying attention to John’s case would have noticed the signs. John’s bank records showed about $10,000 in annual losses from one of his long-term savings accounts. By the time she met with Randich, she had spent “gross amounts” of time combing through bank records and compiling evidence to persuade the judge to take a second look at Schless’ accounting, only to find him powerless to enforce the law and unwilling to enlist someone who could. Sharon’s faith in probate evaporated as quickly as John’s savings.

“I don’t even want to say it’s a system,” Sharon said. “It’s a rubber stamp.”  

As a last resort, the Imberts’ lawyer contacted a reporter at the Hartford Courant. When an article detailing his plight appeared in the Sunday paper, the Imberts’ phone began to ring. Among the many concerned callers was Brian Prelenski, a state’s attorney.  

Over the next year, with the help of a police detective, a forensic accountant, the Courant reporter, and Prelenski, the Imberts found that Schless had stolen at least $60,000, and possibly more than $100,000—a large enough sum to merit a criminal allegation of larceny in the first degree. Prelenski served Schless an extraditable arrest warrant mandating his speedy return to Newington, Connecticut. One early morning in December 2015, three years after he was removed as John’s conservator, Schless caught a flight to Connecticut from Boynton Beach, Florida. Around 5:30 AM, he turned himself in at the Newington police station.   

*

On March 18, 2016, in New Britain Superior Court, Schless pleaded “no contest” to first-degree larceny, a felony. He was convicted of stealing $47,746 from John, the amount that fell within the statute of limitations. At age 78, Schless received a ten-year suspended sentence and no jail time, on account of his age. In court, John read from a prepared victim statement. 

“In the past, I trusted people, and trusted lawyers and the courts,” he said. “Now I don’t trust people anymore.”

After John’s story made headlines in the state capital, Connecticut’s legislature passed a law mandating random audits of conservators’ accounting. But piecemeal reform, including a law establishing conservators’ duty to intervene in their clients’ lives as little as possible, has historically failed to change conservator conduct, partly because probate judges have little power to enforce the law, and partly because many of them work part-time, limiting their ability to conduct rigorous checks. Yale Sterling law professor John Langbein, a longtime critic of Connecticut’s probate courts, believes conservatorship should be exported altogether from the probate system, which he characterized in an interview as inefficient and “corrupt.” Sandra Sherlock-White, an elder law attorney who served on a work group to revise Connecticut’s conservatorship statute following a high-profile case in 2014, told me she has noticed a “disconnect” between the letter of the law—which she helped to craft—and the reality on the ground. “The trouble is more in the practice. That’s where the rubber doesn’t meet the road,” she said. “There are still violations at times.” 

Former probate administrator Paul Knierim attributes those violations to “human frailties”; others, like Langbein, Brooks, Cohen, and Sharon, blame them on a frail system. And when the system fails, not everyone has dedicated relatives who are willing and able to invest hundreds of hours tracing the financial history of a rogue conservator. On her front porch, Sharon, wiping away angry tears, said of probate, “I don’t even want to say it’s a system. It’s a rubber stamp.”  

*

When John and I spoke on the phone, he was looking forward to his upcoming stint at Camp Harkness, the camp for disabled adults in Waterford. Sharon, Jim, and I sat on the front stoop of their home in Niantic and talked to John on speaker phone. He’d be heading to camp soon, I said. What was he the most excited to do? “See my friends,” he said ponderously. Then, he remembered the lake. “And swim!” 

Later, I asked him how he felt about Schless. 

“At first, he was O.K. But it made me upset, what he did,” John said.  

“Hey, skipper,” Sharon said gently. “Do you remember what you told the judge you wanted Michael to do?”

“Oh,” John replied, pausing. Schless had exploited him impersonally, via bank transactions and from a distance; now, John wanted Schless to witness the vulnerabilities he had exploited firsthand, perhaps through community service that could actually help others with John’s disability. “I wanted him to work with somebody who has cerebral palsy,” John said. But the judge declined to issue an order. “Candidly,” Sharon she said of Schless, “I don’t trust him.”  

As the investigation unfolded, the third, and most difficult, question the Imberts faced was how to explain the situation to John. He had trouble understanding Schless’s part in the changes to his life and his body. “He can’t conceive of anybody hurting another person,” Sharon told me. In 2012, the Imberts footed the hefty bill for camp, but they knew they couldn’t afford to keep paying long-term. Meanwhile, John’s teeth had started to rot. Without home health aides, he often failed to brush them properly, and his age and physical disabilities made him more vulnerable to dental decay. Sharon said, “It was a process of telling him, ‘You’re losing your teeth because, you may not go to camp because.” 

Though John recovered about $60,000 in stolen funds between the criminal case and a civil suit, the Imberts say Schless stole tens of thousands of dollars more. They worry that the recovered money won’t cover the care John will need as he ages. In the year after the trial alone, he attended weekly therapy sessions to manage his psychological trauma. In the absence of his home health aides, his dentist pulled all of his lower teeth. 

Jim, in a Harley Davidson t-shirt, listened as John spoke over the phone. “We’re asking about the Schless Mess, skipper,” Jim reminded his brother when John struggled to understand a question. With John, the Imberts try to strike a light tone. In private, however, their mood darkens. Jim believes conservatorship is “a broken system,” and he holds the state of Connecticut responsible. Sharon counts the endangerment of John’s stay at Camp Harkness as one of Schless’s cruelest offenses. And whenever she sees John, his lower dentures remind her of the cost of Schless’s conservatorship.

“John doesn’t need a laugh, doesn’t spend,” Sharon said. “If he has what he needs, he’s happy.”

 

– Lily Moore-Eissenberg is a senior in Saybrook College.

Design by Meher Hans.

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