NEW YORK—Marian Kornicki turned to the state after her sister stole $3.5 million from her parents, Manny and Bertha Kornicki. She hoped state officials would stop the theft, perhaps even get some of the money back.
More than six years after her parents died and her sister pled guilty to misdemeanor theft as part of a plea agreement, Kornicki is fighting to keep what’s left of her family’s estate.
Kornicki and others say court-appointed guardians, who are meant to care for people deemed by a court as incapacitated, have exploited families in turmoil, isolated the incapacitated, and drained their assets, leaving little or nothing for their heirs.
Kornicki said she and her father went to court, hoping their rights would be protected, but that didn’t happen.
“That was the beginning of what’s been a terrible, terrible nightmare,” Kornicki told The Epoch Times.
Supporters of court-ordered guardianship acknowledge there are bad actors but say they are the exception, not the rule. They say the majority of guardianships protect vulnerable individuals from exploitation by those who would take advantage of them.
Kornicki said her mother’s estate—from which Kornicki’s sister once stole $3.5 million—is now so depleted that one of her mother’s last legal guardians is petitioning the court for permission to sell the family home.
Deborah Rosenthal is a Great Neck, New York lawyer who was appointed guardian over Bertha Kornicki’s property. The court has ordered the house to be turned over to Kornicki. However, years of litigation, medical bills, taxes, and other expenses, including guardians’ fees, have drained the estate, Kornicki said.
Rosenthal appeared to confirm the estate’s financial issues in court records provided to The Epoch Times by Kornicki.
“The assets that I am holding for Bertha Kornicki are not adequate to pay her debts,” reads a March 2, 2018, letter from Rosenthal to Judge Arthur Diamond of the Supreme Court of Nassau County, New York.
Kornicki’s parents, Manny and Bertha Kornicki, were Holocaust survivors who married in a displaced persons camp in Germany after World War II. They emigrated to the United States in 1950, settling first in the Bronx and then in Flushing, New York.
They opened a successful bakery and invested in real estate.
In the 1970s, their oldest daughter, Marian Kornicki, moved to California to pursue a career in the recording industry. Her parents didn’t understand her departure from family tradition.
“They were just so upset, so upset that I didn’t stay in New York and get married,” Kornicki said.
While she was away, her sister, Terri Kornicki Kaminer, went to work for her father as an accountant. Kornicki said that in 2003, her father asked her to come back to New York because he had found evidence that Kaminer was stealing from him.
According to court documents, in 1998, Kaminer convinced Bertha, who had Alzheimer’s disease, to grant her a power of attorney. Kaminer then transferred millions of dollars of her parents’ cash and assets into her name and the names of her family and friends.
In 2005, Kornicki and her father planned to file criminal charges, but an estate attorney recommended that they file for guardianship over Bertha. The Kornickis thought they would be appointed Bertha’s guardians. But that was not to be.
Instead, the court appointed an attorney as Bertha’s guardian. Kornicki said her father became disillusioned by the legal process that took away his life partner’s rights instead of granting the requests of those who loved her.
“He told me he would never go back [to court],” Kornicki said. “And he never did.”
According to Kornicki, between 2005 and 2018, her mother’s estate paid $1.8 million to lawyers, accountants, guardians, courts, and others involved in her case.
She said the guardians took control of every aspect of her mother’s life. Kornicki was eventually appointed guardian over her mother’s person, but the court remained firmly in control of everything else, she said. Kornicki’s every action was scrutinized by the guardian over her estate.
She said her mother’s estate was charged up to $400 per hour for a guardian to review telephone, grocery, and other routine expenses before authorizing Kornicki to pay the bills.
“All of these people took control of everything,” Kornicki said. “They did exactly what my sister did.”
Sandra Bussel is an attorney and CPA who was one of Bertha’s first court-appointed guardians.
According to an online biography, she specializes in trusts, estates, guardianships, Medicaid planning, and real estate.
At the time of her appointment, she was in private practice in Great Neck, New York. Bussel declined to comment for this story. In a Nov. 11, 2011 letter to Kornicki, Bussell stated that Kornicki may not have understood a guardian’s role or how guardians are compensated.
“It appears to me that you are laboring under the misconception that this Guardianship action focuses only in the recovery of assets [stolen by Kaminer],” the letter states. “Note that this action also focuses in the management of your mother’s assets, and it is my duty and responsibility to make sure that [Bertha’s] assets are well administered and that all expenses are made for the benefit of [Bertha] only.”
In a June 2015 filing, Bussell told the court that her focus was on “managing [Bertha’s] assets and marshaling those assets missing, meeting regularly with investment advisors, preparing annual accounting and keeping track of expenses, review and question her tax returns and make corrections with her accountant as needed.”
Rick Black is co-director of the Center for Estate Administration Reform. He and his wife, Terri, founded the organization in 2014 after a neighbor allegedly stole $220,000 from Terri’s disabled father.
Black said that when the family discovered the theft, the neighbor filed for guardianship of his father-in-law and nearly won. It was then that Black learned that anyone can file for guardianship over an individual. A neighbor, a family member, or even a stranger can become a guardian by convincing a judge that the potential ward is incapacitated and the person asking to be guardian is the best choice to care for them.
He said the first family court hearing was an eye-opening experience. Black said he realized early in the process that his father-in-law was losing his rights.
“It took 10 minutes to realize something’s amiss here,” Black told The Epoch Times. “It was very obvious this was organized.”
The exact number of Americans placed under guardianship each year is unclear. Each state operates its own probate court. There is no standard method of keeping track of cases. Each state probate court operates differently.
Some states collect data but have no means of tracking it. Other states collect no information at all. What is certain is that once a person is declared a ward of the state, they lose most, if not all, of their rights.
Black said his father-in-law had a will and advanced directives and had spoken to his family about his wishes, but it was all to no avail. The probate judge is free to disregard all of it, defer to the advice of the guardian, or make his or her independent ruling.
The conservatorship for Bertha Bernal of Orange County, California, was also illustrative of the authority a conservator has over the conservatee.
According to documents from the Orange County Superior Court, Bernal’s conservator controlled everything from her medical care to whether she got any visitors, “regardless of whether the conservatee consents.”
The order also revoked all powers of attorney for finances that Bernal had issued.
In some cases, guardianship duties are divided between a “guardian over the person,” who controls the ward’s physical needs, including diet, medical care, exercise, and other personal matters, and a “guardian over the property,” who controls the ward’s assets.
The guardian’s fees, medical expenses, and other costs are taken from the ward’s assets. A guardian can buy, sell, or invest in the ward’s name. This includes selling a ward’s home to cover expenses, as Bertha Kornicki’s guardian has indicated she wants to do.
According to Black, probate court is not like criminal or civil courts. Probate is an “equity court” that deals mainly with domestic issues such as divorce, estate settlements, adoptions, and other family issues.
Judges in these courts have greater latitude in their decision-making, because they often deal with issues such as division of property that may not be clearly defined in the law. And since they are local courts, federal courts have no jurisdiction to hear appeals.
This means fewer possibilities of a judge’s ruling being overturned.
Detractors of guardianship say this has created an ideal environment for those seeking to enrich themselves.
“Because [probate court] has no oversight, because there [are] no penalties for this function, it becomes an environment that serves insiders at the expense of the law and the public,” Black said.
However, representatives of the guardian industry say that cases such as those of Kornicki and Black are anecdotal.
“We’re not here to defend bad guardians,” Butler told The Epoch Times.
Since then, the NGA has written ethics policies and standards of care for its members. The CGC devises and administers the certification process for professional guardians. Butler said NGA is working to get its policies and certification processes implemented nationally.
According to Butler, most states require at least a background check for a person to be appointed a guardian. Four states—Washington, Florida, California, and Texas—require certification.
Butler, a certified guardian herself, said the solution to abusive guardianships is transparency.
“I guess I try to be as transparent as possible,” Butler said.
She said it’s challenging to find wards who are happy with their guardianship experiences. But some wards come to appreciate their guardians.
Visitors to the rural Minnesota group home where Kerry Gerber lives are greeted by chickens and a Beagle who will drop a toy at the visitors’ feet and look up expectantly.
“She’s really friendly,” Gerber explains.
Gerber is one of Butler’s former wards. She’s a bespectacled young woman who loves her job, her dog, and being able to live on her own after a chaotic and sometimes violent childhood.
Gerber became a ward of the state at 8 years old. She and four siblings were born to parents struggling with drug and alcohol issues. By the time she aged out of the system in 2013, she had been in 24 different foster homes and several failed attempts to reunite with her parents.
She said one foster family made her sleep in a bathtub with no linens or pillows if she misbehaved.
Gerber blames the state for the physical and emotional abuse she and her siblings suffered.
“They failed to keep us safe,” Gerber said.
Butler said that when she was appointed Gerber’s guardian, she met a hardened young woman who trusted no one and didn’t want to be told what to do. But by being open and firm with her new ward, Butler said she was able to earn her trust and teach her how to her make her own decisions.
“We did go through some hard patches,” Gerber said. “She became like a mother figure to me because my mom wasn’t there.”
Both measures call for greater accountability and oversight of guardians and outline the ward’s rights, including decision-making, receiving adequate publicly funded legal counsel if they can’t afford to pay and the adoption of tailored guardianships to ensure wards retain as many rights as possible.
Under a tailored guardianship, the guardian’s authority is limited to specific needs such as finances or medical care.
“There’s a lot of great success stories out there, but those are not the ones that are seen in the media,” Butler said.
Diane Dimond, a freelance journalist and author who investigated the guardianship system for eight years, agrees with Black that guardianship is used far too often in the United States.
Dimond points out that the issues facing the probate court and guardianship have existed for decades. Over the years, many laws have been written, and political leaders have called for reform, but Dimond said nothing has been done.
She blamed lobbyists for those with vested interests in the guardianship system for blocking reforms. Dimond said that as long as there’s money to be made, there will be no reform.
“Why hasn’t it changed? Because of the lobby groups ... it’s the lawyers, it’s the guardianship associations in every state,” Dimond said. “They love guardianships.”
