Attorneys exploit guardian system to prey on senile elderly

In Japan, when a person suffering from senility can no longer manage his or her affairs, the standard procedure is for a close relative to petition the family court for guardian status, a system called "seinen koken-nin."

Ideally the system will safeguard the elderly person's savings and other assets, while providing for their needs. But unscrupulous members of the legal profession, warns Shukan Gendai (Dec 26), are misusing their court-appointed authority to plunder their wards' assets.

"I gradually started sensing something was wrong, and my worries were confirmed when I went out to my great aunt's house in Yamanashi," one woman relates. "The house had become shabby and weed-infested, and when I opened the front door, there was this musty smell of mold that also suggested the presence of rats or some other vermin. Other rooms had a strong, ammonia-like odor."

According to the woman, the attorney who had assisted in the custodial arrangements, had made multiple withdrawals from the great-aunt's bank account, supposedly to pay for maintenance of that house. He also padded the charges such as car rental fees.

"His 'expenses' came to between 1 and 2 million yen," she relates.

The great-aunt, Chizuko Tamura, age 87, resides in a rest home in Saitama Prefecture. Her assets, mostly in properties in Yamanashi and Saitama, are estimated to be in the order of several hundreds of millions of yen. A widow, Tamura has also outlived her son. As senility set in, her relatives petitioned the family court for appointment of a guardian to oversee her affairs.

In this particular case, an attorney known to the family was appointed by the court.

It was only when Tamura's relatives received a telephone call from a neighbor in Yamanashi -- reporting that the house there had been allowed to deteriorate seriously -- that the family realized the lawyer was helping himself to Tamura's funds and not doing anything to earn it.

The guardianship system in Japan is relatively new, having been initiated 15 years ago. While its aims appear noble, the number of disputes involving unethical practices by attorneys (and legal scriveners, who are also empowered to hold guardianship status), has been increasing rapidly.

A 72-year-old Kanagawa man, living in an assisted care facility following a stroke, applied to the family court to have a his niece appointed as his guardian. But the court refused and appointed an attorney instead.

"At that time my uncle had already transferred to a facility in Tohoku close to me," said the niece. "It made no sense to appoint an attorney based in Kanagawa. He's resisted our requests to allow us to change to a local attorney, and automatically deducts 40,000 yen every month from my uncle's bank account, for his guardian fee."

"The family courts accord authority to the guardians of senile people as if they were 'their second self,'" remarked Koji Miyauchi, director of a private foundation for guardianship. "For example, without the agreement of the guardian, the other family members of the senile person can be prevented from touching his assets. And if the guardian refuses, the ward can even be prevented from even receiving 1 yen of his or her own money."

So lucrative has the guardianship system been for attorneys, that from around 2012, growing numbers of attorneys and judicial scriveners are said to have taken up such work exclusively. And not surprisingly, more abuses have come to light. On Dec 4, the Matsuyama District Court sentenced an attorney to 3 years imprisonment, suspended for five years, for embezzling some 22 million yen from an elderly client. It was discovered that the attorney had issued falsified receipts and other documents to the client's family. Three days later, the Tokyo Court filed charges against a judicial scrivener for having siphoned off 64,450,000 yen from the account of a client in Chiba following her death at the age of 103.

Once appointed, a guardianship can be difficult to rescind. According to the aforementioned Miyauchi, in cases where families appeal to the courts for dismissal of a guardian due to non-performance of duties, the percentage of rulings to nullify the guardianship are no more than 1%. Nevertheless in 2014, some 6,000 guardians -- about 8% of the total in Japan -- were divested of their status. And unfortunately, observes Shukan Gendai, there's no assurance the person appointed as a replacement will prove any more trustworthy.

© Japan Today