TO: Stephanie Heying
Court Services Analyst
Nevada Supreme Court / Administrative Office of the Courts
(775) 687-9815 / Fax (775) 687-9811
To members of the commission and the Most Honorable Chief Justice of Nevada James Hardesty:
I am grateful for the invitation that allows me to contribute written remarks for the May 20th 2016 meeting of the Nevada Guardianship Commission.
Americans Against Abusive Probate Guardianship is a national 501(c)(3) organization dedicated to the reform of the terribly flawed professional guardianship system that flourishes across this great nation and enslaves and impoverishes untold thousands of innocent individuals and families. Our organization has affiliates in over 35 states including Nevada.
Our organization has been instrumental in the near unanimous passage of dramatic reform measures in Florida including Senate Bill 232 this past legislative session which creates administrative relief for the victims of guardianship abuse and their families. In the prior session our efforts resulted in the unanimous passage of Senate Bill 5 which among other things made elder abuse a felony in Florida.
Despite these unprecedented achievements, we have seen little or no diminution in either the number of new wards created (nearly 7000 a year in Florida) nor the abject abuse, neglect and exploitation of their wards by professional guardians.
While there are ongoing attempts to deal with guardianship abuse provided by clerks of the court in Florida and in particular by Sharon Bock and Anthony Palmieri of the Palm Beach County’s Clerk Of Courts office, to date there has been not a single arrest or conviction of a professional Guardian despite overwhelming evidence of criminal wrongdoing in their County let alone in others.
The presence of large numbers of abuse cases in Nevada, Florida and other states is not a rounding error. These all too frequent abuses occur because of multiple systemic deficiencies in the judicial process that coalesce to produce the conditions that allow the abject discrimination against and exploitation of the very people the system was designed to help.
It is our position that abusive guardianships exist and persist as a result of:
- Failures by the judiciary to adequately monitor and discipline the very guardians they empower
- Failure of law enforcement to prosecute egregious crimes against the elderly
- Misaligned incentives among and between adult protective services, guardians, lawyers, judges and the downstream stakeholders in the guardianship industry.
There is no getting around the fact that there would be no abusive guardianships/conservatorships if honest judges were diligent about protecting wards and their assets. Unfortunately, our national survey of guardianship victims indicates that judges are nearly universally suspected of being the root cause of, rather than the solution for guardianship abuse. Our society places its trust in the judiciary on the assumption that the legal process will be honest, just, fair and will conform to the laws we are all compelled to live by. But, there is no system in place to effectively monitor or discipline guardianship judges whose rulings control the destiny of major intergenerational transfers of wealth. This lack of oversight makes it too easy for judges to act in violation of both the spirit and letter of the law with impunity. The absence of such safeguards is exploited by clever lawyers, greedy guardians as well as some greedy family members.
The multiple political, monetary, personal and clandestine temptations to rush to guardianship, so frequently seen in these cases, all too often turns the judiciary into the adversary of the innocent individual rather than her advocate. Even with the passage of significant reform legislation in our State, the ability of the judiciary to manipulate statutes selectively, to ignore relevant evidence of capacity, and to be unduly swayed by the spurious pleadings of their legal brethren and the Guardian predators they protect with absolute impunity creates an environment where guardianships devour the assets and very lives of innocent individuals who have no defense against the onslaught of this oppressive and rapidly growing industry.
The challenge is to create for the public an effective and efficient mechanism by which to proactively identify abusive judges who have forsaken their responsibility to advocate for those in need of help. There must be systems in place to meticulously monitor how the funds of the wards of the state are spent by guardians, especially the most prolific ones, to prevent the horrific abuses—including isolation, overmedication and abject neglect– that have been documented in Nevada and Florida and so many other States.
Failures of law enforcement:
Although statutes exist that define elder abuse as a crime, these statues are ineffective when State Attorneys refuse to prosecute those crimes. Victims of guardianship abuse have experienced endless frustration and their attempts to even report these crimes to any level of the law enforcement system starting with local police all the way up to federal prosecutors. Top-down direction to inform front-line law enforcement of the need to recognize valid complaints from the public of guardianship abuse must encourage rather than dissuade abuse victims to report their experience.
Conflicts of interest:
The vast amount of money that flows out of guardianships creates enormous temptation for every stakeholder in the process. That temptation often distorts the mission of the guardianship system from protecting an individual to exploiting her. A prime example of this is the evidence that adult protective services workers have been repeatedly paid off when they create referrals for guardianship to specific guardians.
We have become aware of outright corruption in courts with cleverly disguised bribes and other monetary incentives to and between members of the industry. We strongly suspect that some guardianship judges who have personal undisclosed issues with gambling, drug abuse, alcoholism, infidelity, sexual deviancy and personal financial distress are being blackmailed to rule to the advantage of lawyers who practice in front of them. Judges are human beings and prone to the same foibles as the rest of us, but when these foibles result in conscious judicial misdeeds and the abuse and exploitation of innocent elderly, they cannot be tolerated. There must be a mechanism in place, other than the feckless commissions designed to protect judges rather than investigate them, to hold judges to a higher standard of professional behavior and as your commission is doing, to diligently examine and discover the deep flaws in the current system that can be corrected.
Failure to date to accomplish this goal has led to a public crisis of confidence in the courts which diminishes their legitimacy.
These observations come from justice loving American citizens who have the deepest respect for our judiciary. Some cases of abusive guardianship have been naïvely instituted by well-meaning family members with the intent to provide help to family members only to learn of the perfidious nature of the guardianship system as it exists today.
The goal is not to bad mouth the court or abolish guardianship for there are times when it is truly needed and a noble service to those in need. But the courts have been complicit accessories to crimes against innocent individuals and families when guardianships become abusive. We pray that with honest leadership the Nevada commission will succeed in recognizing these issues and proposing workable solutions that will protect the citizens of Nevada from the predation that has been attested to by the victims of Nevada’s history of abusive guardianship.