Probate/Equity courts across the country are not only creating guardianships in record numbers but abetting the explosion in the number of abusive and exploitative professional guardianships. We estimate that about 14% of adult for profit guardianships are fraudulent and/or abusive accounting for billions of dollars of wealth extraction yearly. But why?
Remember: Guardianship is about money—only money.
But even a cursory examination of one court funding system provides a ready explanation. Florida, is a state with no State income tax, so courts have to basically raise their own operating funds with help from the Legislature. And they do a great job—at the expense of those who use the courts. In addition to the IOLTA interest raised (on a principle of over $500 Million) most of which goes to the Florida Bar. (Why this money goes to The Bar, a Private professional trade union, instead of into general court revenues is an intriguing question especially when the courts are always crying poverty)
The overall Florida court system is a $1 billion money making operation,
Even though Florida’s courts system accounts for less than 1% of the state’s total budget, in 2011 the court system reported $6,374,025 in revenue from Probate Court filings and cases with revenue flowing into the State Courts Revenue Trust Fund with that amount increasing steadily since. That fund was flush with money from court fees during the recent foreclosure/robofilng fiasco.
But when the cash cow of a flood of primarily improper foreclosure filing fees dried up several years ago the trust fund which had relied heavily on foreclosure filing fees as its principal source of revenue suffered severe setbacks. Marked and unpredictable swings in foreclosure filings as the mortgage industry struggled with loan-documentation problems made the judicial branch budget susceptible to variations and deficiencies in available funds to run its moneymaking business.
That issue might partially explain the increase we have seen in the number of probate filings for guardianship which add to the state courts revenue trust fund as was the case when they generated the aforementioned $6,374,025 in 2011 revenue from Probate Courts across the state alone.
But it must be noted the general court system of which Probate is a part also gets funding from the Federal Government in the form of grants and awards.
So what does this have to do with taking action in guardianship matters?
Accepting Federal funds of any kind makes the court system responsible to abide by what is called the Supremacy Clause
Under the Supremacy Clause of the United States Constitution, state laws or actions which violate federal law are invalid, including Civil Rights violations
Therefore State courts that receive indirect or direct federal funding must comply with Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, age, color and national origin in programs that receive federal financial assistance including the State Medicaid Programs.
There is a major roadblock though to taking advantage of this fact.
The Eleventh Amendment of the Constitution provides states with a degree of immunity from private suits and has been debated for decades in various cases in law including Ex Parte Young, Bivens and Seminole Tribe.
The apparent conflict between the Supremacy Rule and the Eleventh amendment issues is beyond the scope of this article.
But a case can be made that Probate Court actions that violate Federal Civil Rights laws like the ADA ocurring in a State system receiving any Federal funds—like denial of civil rights– are de facto invalid and therefore can be challenged despite the eleventh amendment.
For those who can still afford legal representation, this approach might be worth discussing with counsel.