Federal judge sends suit against probate judge and guardian to state court

By David Yates | Apr 10, 2019

HOUSTON - U.S. District Judge Lee H. Rosenthal remanded plaintiff Sherry Johnston's breach of fiduciary duty claim against court appointed guardian David Dexel to the 253rd Judicial District of Liberty County, all while letting Harris County Probate Judge Christine Butts off the hook.

“Unlike the claim against Judge Butts, the claim against Dexel raises unsettled issues of Texas law,” wrote Judge Rosenthal on Mar. 14 in a 40-page ruling from the bench of the U.S. District Court for the Southern District of Texas in Houston.

Johnston sued Judge Butts and Dexel in 2016, alleging that her elderly mother Willie Jo Mills suffered broken bones and a rapid, preventable decline, which contributed to malnutrition and her death when she was a ward of the state residing in a care center under guardianship, according to a press release.

“Because the action would be remanded, not dismissed, Johnston’s claims are not at risk of being time-barred,” noted Judge Rosenthal in her Memorandum and Opinion.

A ward of the state who has a court appointed guardian is typically a younger adult with physical or developmental disabilities. However, the Texas probate guardianship program along with the probate guardianship programs in other states are being confronted with allegations of neglect and malfeasance as they increasingly constrict the elderly who are experiencing cognitive decline.

The cries of elder abuse around probate guardianship programs gained national attention last year when U.S. Sen. Susan Collins of Maine introduced the Guardianship Accountability Act on Nov. 28, 2018.

As previously reported by the SE Texas Record, once appointed by a probate judge, guardians are empowered to sedate the elderly individual with physician-prescribed psychotropic drugs, to deny choice of meals, choice of health insurance, medical care and even visits with friends, disability advocates, adult children and other concerned loved ones by imposing visitation costs and residency in locked care centers.

The Senate Judiciary Committee in Washington, D.C. is currently evaluating the proposed Guardianship Accountability Act, which could, per the release, "impact 98 million Americans nationwide that are expected to reach age 65 and older by 2060.”

Johnston’s breach of fiduciary duty claim alleges that the court-appointed Dexel billed her mother Ms. Mills at his attorney rate of $300 an hour for non-legal services instead of billing at a guardian’s rate of $100 per hour.

“Dexel often charged his attorney rate to arrange payments to and from Mills’ trust, a service which does not appear legal in nature,” wrote Judge Rosenthal in her decision. “Because the court has found at least one factual dispute material to deciding if Dexel breached a fiduciary duty owing to Mills, summary judgment cannot be granted for Dexel on this record.”

Before her death, Ms. Johnston’s mother, Mills, was among the estimated 48,468 Texans conscripted to live under the thumb of a court-appointed guardian in 254 counties, according to Office of Court Administration data.

“The defense presents unsettled Texas- law questions that touch on family relationships, estate management, the Texas probate system, and the care of some of the most vulnerable members of our community,” Judge Rosenthal stated. “They are questions that the Texas courts are better positioned to answer.”

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