The Death of Democracy in the Probate “Court”
By David Arnold
Originally published in the Boston Broadside December 2017
Reprinted with permission
The United States is a democracy. Right?
I never questioned that until 2012. Someone that I loved very dearly was subjected to severe abuse by the Probate Court. I was also subjected to abuse. I survived. Gretchen did not.
The lasting damage done to me by this experience was the destruction of my belief that people do not have to fear abuse by government in the United States.
It was not until 2016 that I finally realized the problem. The Probate Court is not a democratic institution. It is a dictatorship. It violates all the principles on which this country was founded.
The thing I find most frightening is that only a tiny fraction of the general population realizes the truth. I think the reason is that we are all blinded by our belief that the institutions of our government function in accordance with the principles of democracy.
In fact, anyone who has been involved in a guardianship case has all the information needed to know that the Probate Court is not a democratic institution. It took me 4 years of study and research before I finally saw the truth that was sitting in plain sight.
This is not to say that all the institutions of government violate the principles of democracy. However, the Probate Court is a glaring exception.
Somehow the judges and lawyers of the Probate Court have managed to eliminate all the protections of democracy designed to prevent abuse of power by government. The result is that the Probate Court has the ability to commit crimes with impunity.
The reality is that no one is safe from abuse by the Probate Court. This is a very strong statement. However, this statement is supported by extensive factual evidence. This evidence has been accumulated primarily by organizations outside the government.
Until recently the government has passively or actively swept the problem under the rug. The Probate Court has the ability to prevent the evidence of abuse from becoming public. Other branches of government have also cooperated in concealing the evidence.
Since this happened in 2012 I have filed complaints with all three branches of government with no effect. All my complaints have ended up in the hands of a lawyer who did nothing. One of the other parties in the case has also filed complaints with no effect.
The proof that the Probate Court is a dictatorship is lying in plain sight. It is a matter of seeing the obvious. In my case that took 4 years.
The foundations of democracy are the following:
- No one has absolute power. Power is distributed between three branches of government to provide checks and balances.
- Everyone is responsible for their actions. No one has immunity.
The Probate Court violates both of these fundamental principles of democracy in multiple ways. In particular, guardianship is riddled with absolute power and conflict of interest.
The judge has sole control of guardianship:
- The judge appoints the attorney for the incapacitate person.
- The judge appoints the guardian/conservator who manages the person’s affairs
- The judge appoints the GAL who investigates the facts of the case.
- The judge decides the case without the right to a jury trial.
- The judge is responsible for accountability of the GAL and guardian/conservator.
- The judge gives immunity to the GAL and the guardian/conservator as agents of the court.
- Judges have judicial immunity and extend that immunity to those they appoint.
- The Constitution does not give anyone immunity. The court has given itself immunity.
The combination of absolute power and immunity has set up a system of legalized crime where GALs and guardians can commit crimes with impunity.
Marti Oakley who runs an internet talk radio show has been pointing out for a long time that the Probate “Court” is not a court. It is an administrative tribunal whose authority is derived from the Executive Branch, not the Judicial branch.
Because it is not a court it is free to set its own rules as to how it operates. A person who goes before the Probate Court has no constitutional rights. The law is whatever the judge says it is. Responsibility for protecting a person’s constitutional rights rests with a court of law. The Probate Court is not a court of law.
The problem is that the Probate Court pretends to be a court and has usurped powers that can only be exercised by a court of law with due process. The Probate Court exercises the powers of both the Executive and Judicial branches of government. This is unconstitutional and violates separation of powers.
In December, 2016 I met with my state senator William Brownsberger to discuss my complaints with the way guardianship is managed by the Probate “Court”.
I pointed out that it violates separation of powers for a judge to be responsible for both appointment and accountability of guardians.
His response was “Please trust me when I say: Your argument that the guardianship system is unconstitutional is not correct legally, however powerful it may seem theoretically.”
I said I was not willing to trust him. I asked him to prove it.
He said “You are asking a little too much of me.”
He elaborated by saying “Separation of powers is not just a philosophical idea, it is a technical legal construct.”
The issue is not whether the present system is legal. The extermination of the Jews was legal under German law. Slavery was legal in the United States.
The issue is whether guardianship is consistent with basic principles of law, democracy, civil rights, human rights, and the constitution. In my opinion, the present system of guardianship violates all these basic principles. It is a stain on our democracy as bad or worse than slavery. It is a danger to everyone whether or not they realize it.
I was taken totally by surprise by the way the Probate Court handled my guardianship case. I would not have trusted the Probate Court if I knew then what I know now. The problem is that there is no appropriate system for handling guardianship.
The way to stop this abuse is to take away the secrecy that protects those who are committing these crimes. That can only be done by the free press.