Beyond Brooke: Brooke Astor and the Cause of Elder Justice

Volume: 36 Issue: 3

About the Author:

Philip C. Marshall is the grandson of New York philanthropist Brooke Astor, who was the victim of elder abuse by Anthony Marshall, her son and Philip’s father. When he is not advocating for elder justice, he is a professor of historic preservation at Roger Williams University in Rhode Island.

(Note: The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 36, Issue 3.)

 

As my grandmother Brooke Astor now rests in peace, I could have resumed my life as before. For years my battle for my grandmother, and my battle against my father consumed my life—and consumed our family. In 2009, after a six-month criminal trial of my father, a friend familiar with my circumstances said, “You must be glad that’s all behind you.”

But, I realize: When elder abuse hits home, it hurts.

I realize: The aftermath of elder abuse far exceeds any dollar amount. Most costs are irretrievable.

I realize: While my grandmother was isolated and emotionally and financially abused, her case is far from isolated; there are millions of victims, today, suffering similar injury.

And I realize: To be complacent about elder justice is to be complicit in elder abuse.

In fact, our national negligence is a proximate cause of elder abuse.

When our elders lose their sight, it’s natural;
when we turn a blind eye to their plight, it’s negligent.

When our elders lose their hearing, it’s natural;
when we are deaf to their cries for help, it’s negligent.

When our elders lose their voice, it’s natural;
when we choose not to voice our concerns, it’s negligent.

And when our elder’s capacity is reduced, it’s natural;
when their physical and financial assets are reduced, without consent, it’s criminal.

I am writing this piece with the hope that the telling of my sad family circumstances will continue to contribute to the recognition of elder abuse and exploitation as an insidious and pervasive national problem. I write as a wounded healer to emphasize the need for greater awareness and caution; collaborative, proactive, and preventive action; and respectful response for the cause of elder justice in all arenas of our society.

When bad things happen, good people get together. In helping my fragile, abused grandmother I was not alone. Her abuse galvanized a collective response by family, friends, staff, and caregivers all united by compassion and a common cause: individuals-in-sum with a great mixed skill-set. The strength of our diversity contributed much to our success. In helping our vulnerable, abused, victimized elders, we are not alone.

Philanthropy

Before dying in 1959, Vincent Astor, my grandmother’s husband, established the Vincent Astor Foundation for the “alleviation of human suffering.” My grandmother, as president, furthered the foundation’s mission by addressing quality of life—achieved through engaged philanthropy decades before the practice was mainstream. Well in to her 90s, she was center stage as “New York’s First Lady” and a “humanist aristocrat with a generous heart.” By age 100, she had disappeared from the limelight. That is, until July 2006 when the contents of my guardianship petition, which was to have been sealed, were discovered by the press—leading to front-page headlines reading “Disaster for Mrs. Astor.”

My grandmother would certainly never want to be known as one of America’s most famous cases of elder abuse. Nor did she, while in the throes of dementia, choose to be victimized—deprived, manipulated, and robbed—all as part of a calculated “scheme to defraud,” as later characterized by the Manhattan District Attorney. Yet, the sad circumstances surrounding the end of my grandmother’s life have informed a timely, and timeless, cause that may be her greatest, most lasting legacy.

Before the Rubicon

In her later years, my grandmother was increasingly isolated: Close friends were denied visits, a longtime and caring staff fired. Eventually she went out only to visit her doctor. Isolated, too, were efforts to help my grandmother.

But out of shared concern, and facing incredible obstacles, we were able to unite and act. I am but one of dozens of people who stood up for my grandmother in her last years—and who then took the stand in 2009 in criminal court, for her and for the greater cause of elder justice.
At the outset, all we dreamed for was to be able to respect my grandmother’s wishes and to return her to her country house to end her days with the care, comfort, and dignity she deserved. But, once we took action, it was clear that we were addressing a much greater issue.

Red Flags

After her hundredth birthday I grew increasingly concerned for my grandmother. I began speaking with her supportive staff. Here are but two—of too many—incidents.

A transaction in early 2002 raised red flags. I heard that while my father was cutting back on my grandmother’s expenses he had sold her favorite painting—one that she had bequeathed to the Metropolitan Museum of Art. The sale realized millions, two of which my father kept as a commission. On hearing of the sale, my grandmother, who had been led to believe she was running out of money, asked, “Now can I buy dresses?”

My grandmother loved the peace and nature of her country house, where she had hoped to spend her final days. In early 2005 my father closed the house and fired my grandmother’s most loyal staff member, her butler Chris Ely. Later, back in her New York apartment, caregivers showed my grandmother a photograph of Chris. She thought he must have died because she couldn’t understand why else he would be gone.

In mid-2005, only because of pressure from two of my grandmother’s closest friends, my father reluctantly agreed to reopen her country house. I barely knew these friends at the time, but I was so grateful when I heard about their intervention. But then, by the fall, my grandmother was back in New York City.

In early 2006 I spoke with more staff and caregivers. After hearing many new, independent accounts I became much more concerned, not only about my grandmother’s compromised lifestyle, but for her emotional and physical care and for her life.

If my father and his wife had taken money and property of hers, but had provided for my grandmother, this story might have played out differently. In fact, given her means, it would have been easy to provide what my grandmother deserved at the end of her life. As we learned later, it would have cost much less than the legal fees in criminal court. But to witness this greed, at my grandmother’s expense—at the cost of her psychological and physical wellbeing—was something I could not bear.

I was still not sure what to do. I sought advice from several trusted people including a sage high-school friend whose own family had been through a similar experience. He advised, “Philip, follow your heart first; then follow the money.”

Our greatest concerns were my grandmother’s psychological abuse and her neglect—two of the most difficult forms of elder abuse to document and assess. So, in large part, the fallback was the financials. This said, I am painfully aware that psychological and physical abuse, neglect, and deprivation all go hand in hand with financial abuse as a means to manipulate and exploit elders—including my grandmother.

Guardianship

After much work, I finally connected with my grandmother’s two closest friends, Annette de la Renta and David Rockefeller, who had managed to have my father open up her country house. We met in May 2006 and decided something must be done. It became clear that I should file a petition for guardianship.

Save a guardianship petition, we had little recourse; my father was using his power of attorney as both a weapon and a shield. In July 2006, I filed a petition seeking guardianship. The petition was supported by affidavits from friends, staff, and caregivers. Immediately, temporary guardians were appointed. The next week, we got my grandmother back to her country house to spend her last days free from fear.

On a side note, it was repeatedly reported in the media that I “sued” my father. Unfortunately, this inaccurate portrayal of my petition has done little to inform the public of options available for themselves.

In my petition I stated that my father, “. . . has turned a blind eye to [his mother], intentionally and repeatedly ignoring her health, safety, personal and household needs, while enriching himself with millions of dollars.” In October, after a three-month battle, and five days before our court date, a settlement was reached. Temporary guardians were made permanent. My father returned over $11 million in assets, and pledged over $10 million in collateral to cover any future claims. My father and two lawyers renounced any right to be appointed fiduciary. We had achieved our goal.

Now back in the country, my grandmother was no longer fearful. Caregivers were now coupled with fully coordinated medical care. Friends visited. Her Rector came for communion weekly. She went outside with her dogs. Thanksgiving, which lived up to its name, provided a quiet time for my family to visit. Our two children and my wife played guitar and sang harmonies. Deep below her blanket of full dementia, we captured a twinkle in her eyes. These fall months turned out to be halcyon days in the eye of the storm.

Aftermath

In a December 2006 court decision, which largely addressed payment of legal fees, the guardianship Judge authorized reimbursement of my legal fees for bringing the guardianship petition, stating “Although this matter voluntarily settled before the hearing, I find the petitioner Philip Marshall was the prevailing party . . .” Yet the judge also decided to award my father a portion of his legal fees, writing “I make this ruling based on the conclusion of the court evaluator that the allegations in the petition regarding Mrs. Astor’s medical and dental care, and the other allegations of intentional elder abuse by the Marshalls, were not substantiated” (emphasis added).

I believe the court evaluator’s report never connected the dots and decimal points. It never made a connection between the allegations in the guardianship petition and an appendix to his report: a long list of financial dealings, totaling tens of millions of dollars, identified by the temporary guardian of the purse, JPMorgan Chase. Although the court evaluator’s report dismissed these “transfers” as having no bearing on the case, they directly affected our out-of-court settlement. Guardianship was settled, and won, in large part, due to these financial findings.

The court evaluator’s report, however, opened the door wide to claims that my grandmother was not a victim of elder abuse. “Astor son is cleared,” headlined The New York Times, which quoted my father’s lawyer saying, “This is a case that was given birth from allegations that were absolutely fictitious regarding Mr. Marshall’s care of his mother.” On the dark December day of this decision, our Pyrrhic victory found us losing the war against elder abuse.

In August 2007, my grandmother died peacefully with friends at her side. Then, in Surrogate’s Court, my father filed her 2002 will and two of three codicils. Those documents made changes to her estate plan that would give him control of almost $100 million.

Codicils

Substantial changes to my grandmother’s will began in 2002 and then escalated. In my grandmother’s case, three lawyers combined to create “a perfect storm,” coming in to her frail life in the winter of 2003-2004 to execute three codicils that redistributed almost $100 million of her bequests, directing them to my father.

[Editor’s Note: For a detailed description of the actions of the three lawyers and the effect on Mrs. Astor’s estate plan, see The Brooke Astor Case: “An Appalling Set of Circumstances,” a three-part interview with Alex Forger, a reknowned trust and estate lawyer who served as an expert witness for the prosecution. The interview is available at http://www.americanbar.org/content/dam/aba/administrative/law_aging/2011/2011_aging_mar18_ea_brkastr_mono.pdf.]

While my grandmother’s will to live remained strong, her will to give had been completely compromised—four years after my father, in a letter to a neurologist, claimed she was “delusional.” After the execution of these codicils, my grandmother became fearful of “men in suits.” At night, she asked nurses to look under her bed for the “man who wants to kill me.”
Was my grandmother’s wellbeing collateral damage? No. Her wellbeing was direct casualty of a psychological war conducted in an effort to exploit her. My grandmother had already provided for my father in her will. Before the codicils, she bequeathed him over $60 million in assets from her estate valued at $132 million. And now he was to inherit tens of millions more.

Cusp

Back in October, only days after the guardianship was settled, a criminal investigation was launched by the Manhattan District Attorney. The suspect execution of the third codicil was a catalyst for the DA’s action.

In December 2006, just as my father declared that he had been vindicated, the DA’s office expanded its work, empanelled a grand jury, and issued subpoenas. In November 2007, my father and the third lawyer, Francis Morrissey, were indicted. In April 2009 the criminal trial began. You now know much more about the guardianship case than the jury did, because all of the guardianship proceedings were barred from being introduced in criminal court.

For me, taking the stand was difficult. But not taking a stand, and not helping my grandmother, would have been more so. Testifying against my father was very difficult. But, more difficult, was having to recount the trauma imposed on my grandmother—all the while not being able to tell my whole story to the jury.

The jury’s verdict: My father was found guilty on 15 of the 16 counts against him. Even though much evidence was barred in the criminal court, I feel that the jury understood how elder abuse was used as a means to exploit and enrich in my father’s scheme to defraud his mother. Save one, all counts were upheld upon appeal. And later, in Surrogate’s Court, a settlement was reached that provided for charities (especially those with an emphasis on education) largely as my grandmother wished.

Act

I could have disregarded heart-wrenching accounts, and discounted calls for help from staff, caregivers and friends. I could have found false consolation in thinking my grandmother had “had a good life” and, in the throes of dementia, wasn’t cognizant of her circumstances. I could have maintained the fallacy that families should not air their dirty linen in public. I could have been made complicit by the false prospect of “silence money” that would have increased my inheritance significantly. I could have enabled my father by thinking “family first” and presumed that my grandmother’s only child—the natural object of her affection—deserved all he sought. But, I could never, ever live with any of these choices.

And I am so glad I chose to act.

War

For, we are the midst of a war. This one is not abroad; this one is at home, one that affects homes across America. As with all wars, it involves domination and violence that are both intentional and instrumental. As with all wars, it results in great emotional and economic cost, psychological and physical harm, and even premature death.

Homes should be sanctuaries. But some homes have become battle zones. In the context of families such as mine, this lends new meaning to von Clausewitz’s definition of war as, “a struggle of wills.” At times elders are collateral damage inflicted by the “friendly fire” among dysfunctional family members. At times elders are the intentional target of abuse—and characterized as such. Yet in this context victimization, “trims a life to fit the frame” [James Hillman].

Justice

Elder abuse is not our destiny. Great advances are being made in surveying the extent, implication, and cost of elder abuse; developing awareness and prevention programs; and conducting coordinated detection, response, and mitigation efforts. Through compassion and capacity, our “war” against elder abuse will be transformed into our campaign for elder justice. This campaign will dispense with the concept of war, as such concept is the antithesis of caring and healing, which we so espouse. Through transformation our campaign will be won not by a rear-guard (re)action but by our vanguard, caring call to action. ■

Advertisement

Search Bifocal

Portions of the Bifocal archive are available for online search. Use a keyword or other characteristics to search: complete issue PDFs beginning with the Winter 2001 issue (Vol. 22, No. 2), or individual articles in html format beginning with the August 2012 issue (Vol. 33, No. 1).

 

About Bifocal

Bifocal, the Commission on Law and Aging's bi-monthly journal, provides timely, valuable legal resources pertaining to older persons, generated through the joint efforts of public and private bar groups and the aging network.

 

Subscriptions

The Commission distributes Bifocal for free six times a year to elder bar section and committee members, legal services providers, elder law and other private practitioners, judges, court staff, elder advocates, policymakers, law schools, elder law clinics, law libraries, and other professionals in the law and aging network.

    Subscribe to Bifocal using the Subscription and Discussion Lists form available on the Commission's Contact Us page.

 

Contributing

Bifocal invites the submission of news about your elder bar section’s activities, as well as brief articles of interest to elder law and other professionals in the aging advocacy network.

    Share news about your entity’s initiatives towards the delivery of direct legal assistance to older persons in your particular area; pro bono and reduced fee programs; community legal education programs; multi-disciplinary partnerships; and new resources that are helpful to professionals and consumers.

    Also welcome are substantive law articles on legal issues of interest to state area agencies on aging, bar association entities, private attorneys, legal services projects, law schools, and others in the law and aging network.

    Bifocal is published bi-monthly. Email the Commission for manuscript guidelines and deadline information for upcoming issues.

 

Bifocal Archive

Older issues of Bifocal are archived here.