Destroying Roadblocks to Guardianship Abuse
The guardianship laws in every state (guardianship systems are entirely created by state, not federal law) have been designed, at least on paper, to prevent unnecessary guardianships and abuse by the guardianship industry. The high-minded motivation behind these laws is to protect people from the government intruding in their private lives.
If that’s the case, why are there so many emergency and involuntary plenary guardianships and so very many reports of horrific and egregious guardianship abuse? Why are the legal barriers to guardianship abuse not working?
One cynical answer is that the roadblocks were created by the very lawyers who know exactly how to avoid and subvert them and thereby are unleashed to make their money by taking it from innocent victims and their families. Prominent lawyers have been quoted on several occasions indicating that the reason lawyers run the country is because they make the laws, interpret the laws, and selectively enforce the laws to their sole benefit. In analyzing a typical state-based system like Florida’s — Florida considers itself a bellwether state for excellent guardianship statutes– that analysis may not be too far off.
Here are some of the putative speed bumps or roadblocks and why they fail:
My family would never do that to me!
Oh yes they would and they do!
Family dysfunction is the commonest precedent to guardianship. Fights over power and money are common in families with assets. When the fight is so bad that one party asks a lawyer to resolve it by having a disinterested judge pick winners and losers, the gates of hell often open for everyone in the family and the only ones who will win are the army of lawyers that will take the estate, drug the alleged incapacitated person, isolate the ward from loved ones and laugh all the way from the courthouse to the bank while a family watches its inheritance disappear.
My lawyer will protect me
Access to lawyers limited for AIP’s and Wards
in Florida alone there are 102,000 practicing attorneys. Each of them wants to make a comfortable living. For the last several years the primary objective of the Supreme Court’s Chief Justice has been to increase access to lawyers referring to it as” increased access to justice”. In guardianship cases, the alleged incapacitated person loses the right to choose his own representation (and every other right) and instead a court-appointed attorney is foisted upon the unsuspecting soon-to-be Ward and their family. While the court-appointed attorney is theoretically duty-bound to aggressively represent the alleged incapacitated person, and preserve their rights, our experience shows that this scenario is the exception rather than the rule. Access to justice in such a case is highly likely to result in the court-appointed lawyer making some money by doing the court’s bidding, putting up little resistance if any with the ultimate result being a guardianship.
While AIP’s have no choice in selecting their lawyer, Guardians certainly do. In fact, most states require guardians to have hired an attorney to represent them upon appointment. They typically select the most connected highest priced attorneys in the field knowing that Guardian and legal fees will be taken without question from the estate of the newly minted Ward and that there are no limits on those billings.
even if your lawyer does try to fight the tide of a guardianship, the odds are stacked against him and you. Besides, he will also make money at every step of the legal process which can drag on for years.
Lawyers are held to a strict code of conduct
Failure of lawyers to police themselves
When probate lawyers behave badly, when they lie, when they steal, when they engage in self-dealing and other corruption, when they inflame family disagreements to bill more and when they protect by every means possible the predatory and often sadistic behavior of the guardians the law demands they represent, there is no effective mechanism by which to subject them to scrutiny, punishment, discipline or humane behavior. As our group experience has shown uniformly, complaints to any state Bar Association about lawyers in probate are not worth the paper they are written on and are uniformly ignored and never successful. The lawyers who have become probate judges are supposed to be monitored and scrutinized by the judicial qualifications commission in each state, but less than 0.01% of the thousands of public yearly complaints about judges ever reach the point of even mild slaps on the wrist. This total impunity from monitoring and discipline makes probate court, which functions as a court of equity with no juries and no due process required, has become the Wild West for lawyers who have cashed in for so long and in so many estates.
The statutes will protect me
Lawbreakers and lawmakers
State legislatures across the country are populated by huge percentages of lawyers. Their staffs are populated by many lawyers. Even though it is technically illegal for a member of the Florida Bar to hold the seat in the Florida legislature, this rule is ignored. Having been involved in the passage of years’ worth of legislation in the Florida legislature, we have learned that a single word in a 10-page legislative document can turn that document from a protective one into a destructive one. The use of words like may, shall, should, will and others can easily fool the uninitiated into thinking that a new law will be effective in preventing abuse but in truth many times the laws are designed to silence the complaining advocates while maintaining the status quo. Even the best intentioned legislation can be worthless simply by being ignored by law enforcement, which has often been the case.
I have ironclad advance directives
The deceptive advance directives industry
For decades, the legal profession has been advising anyone with assets to prepare advance directives and estate plans typically written by high-priced attorneys. These have been touted as the best way to assure that your end of days wishes and choices for medical decisions are followed and that your assets are distributed exactly the way you want them to be at your death. Advance directives have been touted as the single best barrier to the imposition of guardianships. Now as the baby boomers age and those advance directives acquire such great importance, the probate system in state after state has developed a trick system to overcome that barrier to guardianship. Advance directives are now routinely ignored, lay undiscovered, discarded and useless when judges claim that advanced directives made years or decades before any evidence of dementia became evident are invalid because the individual might have been incapacitated many years or decades before when they were written. So, the legal profession gets you coming and going, they charge you mega bucks for creating the advance directives and then when you need them to safeguard your assets and life in probate, they are voided by that very probate system. What’s even worse is that the expensive lawyer that you paid to draft your documents will almost never fight to enforce them in court even if you pay him. He can’t afford to upset the judge that he works in front of all the time.
Statutes say you can’t do this to me!
A dual system of laws and rules
Because due process and the typical safeguards and restraints of juries and evidence collection do not apply in probate court, State Bars have resorted to writing a parallel system called “Probate Rules” for judges to abide by. These rules, of course, are written by the lawyers most prominent in the probate industry and then ratified by the Supreme Court. Whenever there is a conflict between the statutes and the probate rules, the latter prevails. This means that a single word in a probate rule can be a time bomb unnoticed by the public or unsuspecting families or advocates which can be detonated by a cunning predatory lawyer at any time to scuttle any aspect of a probate hearing and convince the judge to rule in favor of the lawyer representing the predators.
The court examiners will never find me incapacitated because I’m not
Incompetent or dishonest examiners
I have had the sad duty of reading dozens of reports created by so-called “examiners” in probate. Examinations by these individuals are the keys that unlock the gates to guardianship hell. These examinations are very hard to study because of sequestration rules, but the ones I have had access to are a cruel joke. Written primarily by non-physicians and even lay individuals the examinations are used to imprison individuals with even the slightest degree of cognitive dysfunction like mild memory loss or medication induced confusion into horrific unneeded guardianships. There is no medical professional oversight or monitoring of these examinations and reports except by the very judge who ordered them who is not a medical professional. This is a glaring example of how the probate apparatus rushes to declare guardianships that are almost impossible to reverse or terminate as a default position.
Probate Judge must give me due process
Equity, Secrecy, Patronage and sequestration
The probate court system, similar to family, divorce and some bankruptcy courts, is nothing like what you see on television or would imagine. Requests for incapacity hearings occur in utter secrecy and without adequate notification to relevant family or the alleged incapacitated person. Proceedings can be held in secret. Judges often meet privately in chambers with lawyers of their choosing. Witnesses can be excluded for no reason. The court can reject any relevant evidence at will. Lawyers are legally permitted to lie. Heavy monetary sanctions are used to silence anyone who challenges any aspect of the court’s authority or decisions. The press can be barred from reporting. Gag orders on litigants are routine. Court records can be sealed or sequestered on the ludicrous excuse of protecting the identity of the person who is about to be made a piece of property as a ward. The process is rigged to find reasons to create more rather than avoid new guardianships.
I don’t have that much, so I am not at risk–public guardianships are designed to protect me
You have more than you think
There is great value in your non cash assets like your home or jewelry. Your benefits like social Security, VA benefits or pension plan are a guaranteed source of steady monthly income for predators who can take control of them in the blink of an eye once granted “letters of guardianship” over you by a Judge. Same thing with life insurance policies, long term care policies or disability benefits. These are the reasons that private companies, many of them purporting to be “religion based” with religious references in their names, so aggressively covet and manipulate non private/public guardianship business worth many millions in state and federal program dollars, private donations, property and redirection of funds to their preferred medical providers, pharmacies, labs and especially their in house lawyers and their favorite banks who gain access to whatever funds you do have without having to pay any interest to anyone. Lack of wealth is not a protection from guardianship.
We could list many other instances where this system designed to protect vulnerable people does the opposite. It is truly justice run amok. The safeguards and roadblocks that we are told will protect us from court intrusion into our lives simply do not work. We are all at the mercy of an unfettered and predatory legal system that has the power over life and death.
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