DUE PROCESS IN PROBATE GUARDIANSHIP—AN OXYMORON
Civil Equity tribunals held in probate guardianship courts by (typically) elected administrative Judges have been under intense scrutiny in recent years. Scandal after scandal in probate courts around the country (as well as in other countries) have raised serious concerns about the legitimacy and legality of the process used to remove the civil rights of supposedly incapacitated individuals and in the process assume control of their assets, medical care and very lives.
Over the past decade the country has witnessed the formation and evolution of over two dozen advocacy groups, composed mainly of families and victims of these courts from all areas of the country who have experienced injustice in their State’s guardianship system and have undertaken efforts to expose what they consider to be a lawless cabal of court insiders who have subverted and leveraged well-intentioned guardianship laws into a nefarious scheme to wantonly wield excessive power and enrich themselves at the expense of the assets and lives of vulnerable American citizens and their families.
These groups, including AAAPG, have identified many of the glaring faults of this system and have sought to address them by various means, including but not limited to:
- Exposing individual stories of exploitation by court insiders in the media
- Exposing individual court insiders– judges, lawyers and guardians– nefarious criminal conduct
- agitating and advocating for legislative reform at the state and federal level
- demanding intervention from all three branches of government State and Federal
- demanding action from law enforcement
- attempting to file appeals and lawsuits against court insiders and their downstream enablers (including the BAR) in state and federal courts
- filing complaints against court insiders with judicial review panels and the BAR
- providing nonlegal assistance and succor to victims and their families
- educating the general public of the risk to them through this system of rights and asset usurpation
Despite these efforts and despite the occasional arrest and conviction of high-level apex predator guardians and lawyers across the country, it is fair to say that this court-based racket continues to flourish and ensnares more individuals every year. In Florida alone there are nearly 8000 new guardianships every year. Nationally, while there is no completely reliable number, estimates place the number of guardianships in the United States at as many as 3 million. The amounts of money taken, lives destroyed, families decimated, slow murders by over medication, taxpayer money wasted, emotional trauma, abuse, neglect, and exploitation are staggering.
Yet despite the obvious, the general public finds it hard to understand not only the scope of this egregious problem but how it is possible that a judge in a court could allow such an awful system to proliferate under his or her nose. As a nation we are conditioned to honor, and respect judges and we expect them to comport themselves to the highest scintilla of ethical and absolutely unbiased behavior. We expect them to not only know the law but apply the law in an unbiased exquisitely fair manner. We expect the court to obey the very laws that we are governed by as part of our duties of citizenship. It is nearly impossible to imagine that judges in these equity courts–not courts of law but courts of equity that function without juries and without the protections of rules of evidence and procedure– who are given such enormous powers over life and death could possibly be involved with or even countenance a nefarious scheme perpetrated by an incestuous fraternity of court insiders that exploits the most vulnerable in our society.
And while the vast majority of judges and courts across the country live up to the grave responsibilities they carry, it is undeniable that an easily identifiable minority of them in state courts across the country are inextricably involved in carrying out massive fraud on an unsuspecting public. They are self-monitoring and shielded from litigation by judicial immunity and therefore essentially untouchable by the normal checks and balances of our American governmental system. They are not monitored or supervised by anyone and almost never held accountable for their actions. They are as close as you can come to being untouchable. Anyone who enters their courtrooms is under their absolute and unquestioned dominion. And as we have learned through hard experience, in numerous specific state circuits across the country, the system is rigged all too often and too often results of the destruction of individuals and families for profit.
One of the most common complaints heard from victims of this corrupt system is that there seems to be a complete absence of due process in these courts. It appears that the concept of due process is very misunderstood and needs clarification.
There are several varieties of due process all rooted in the Constitutional amendments
The Fifth Amendment to the United States Constitution provides:
No person shall … be deprived of life, liberty, or property, without due process of law …
Section One of the Fourteenth Amendment to the United States Constitution provides:
[N]or shall any State deprive any person of life, liberty, or property, without due process of law …
Breaking it down further there is procedural due process of two types, civil procedural and criminal procedural and something called substantive due process as well.
In probate court the applicable variety of due process is procedural.
Procedural due process requires government officials to follow fair procedures before depriving a person of life, liberty, or property. When the government seeks to deprive a person of one of those interests, procedural due process requires the government to afford the person, at an absolute minimum,
- an opportunity to be heard, and
- a decision made by a neutral decisionmaker
This protection extends to all government proceedings that can result in an individual’s deprivation, whether civil or criminal in nature, including administrative hearings, including:
- An unbiased tribunal.
- Notice of the proposed action and the grounds asserted for it.
- Opportunity to present reasons why the proposed action should not be taken.
- The right to present evidence, including the right to call witnesses.
- The right to know opposing evidence.
- The right to cross-examine adverse witnesses.
- A decision based exclusively on the evidence presented.
- Opportunity to be represented by counsel.
- Requirement that the tribunal prepares a record of the evidence presented.
- Requirement that the tribunal prepares written findings of fact and reasons for its decision
Let us now analyze point by point, the deficiencies routinely found in civil equity probate courts across the country that result in egregious abuse neglect and exploitation of the most vulnerable among us.
- An unbiased tribunal. Reviewing what records are available (nearly all are sequestered) and especially aggregate data from state courts, it is highly unusual for judges in these courts to rule against the imposition of guardianship. Public statements from judges in these courts indicate their propensity to favor the arguments of court insider lawyers and guardians over the positions of those who oppose guardianship for a loved one. Recordings of court proceedings unmistakably show the cavalier attitude of some of these judges in imposing maximally oppressive life sentences of guardianship in favor of professional guardians and their enablers such as hospitals, nursing homes and religious organizations.
- Notice. One of the easiest ways to undermine the intent of the law is to simply foil attempts to contact victims or litigants through intentionally misdirecting valid notices to the wrong address. This commonly practiced subterfuge by court insiders sets the stage for legal ambush of the victim and their family. The dastardly tactic of redirecting a ward’s mail to a potential Guardian prior to adjudication of guardianship so that the ward is never informed of the proceedings happens far too often for it to be a random mistake.
- Present reasons why the proposed action should not be taken: even assuming proper notice is given and received in a timely fashion, guardianship proceedings, and especially emergency guardianship proceedings, take place in secret and with the presumption that an allegedly incapacitated person does not have the ability to object, and without opposing counsel being present at preliminary hearings, these courts act like special prosecutors in which only one side of the story is ever told. By the time counsel is appointed for the ward, the process is already ensnared him or her. After that it’s a futile game of trying to undo the damage done by the equivalent of a special prosecutor.
- Witnesses and evidence: in places like Florida and many other states the only witnesses or evidence the judge considers, to the exclusion of everything else, is the hearsay reports of his hand selected three-person examining committee. If one of the three examiners, only one of which need to be a physician, disagrees with the other two then, the dissenting opinion is thrown out and majority rules. No outside experts, no second opinions need be considered by any judge who is intent on clearing his docket and putting guardianship into place. In terms of witnesses, the most frequent witnesses heard in guardianship cases are expert witnesses called in by the attorneys to justify their outrageous fees.
- The right to know opposing evidence; since examining committee hearsay reports are the only evidence required to institute a guardianship and they are secret and unavailable to those opposing the guardianship, this aspect of procedural due process is routinely violated.
- The right to cross-examine adverse witnesses; once declared an allegedly incapacitated person the ward has no ability or opportunity to cross-examine anyone. Assuming that a court-appointed attorney is nominated for the ward– the ward has no say in this and though they may have an attorney of their own that attorney is bypassed in favor of a court favorite who does the judge’s bidding routinely.
- A decision based exclusively on the evidence; while the examining committee hearsay reports are clearly a form of evidence, they are obviously not all the evidence that’s available. When a court refuses to allow the introduction of evidence contrary to its sole source of information, its decision is unduly influenced by the evidence it chooses to ignore.
- Right to be represented by counsel; particularly in cases of estates that are significant, it is highly unusual for a ward not to have been represented at some time in his or her life by a private attorney who is most familiar with the allegedly incapacitated person and has earned the trust of that person. Contrast this with court-appointed attorneys typically assigned probate guardianship cases from a pool of attorneys who, generally speaking, have not achieved great degrees of professional success or recognition and who, even by their own admission, have no relationship or understanding of the individual they are now required to represent. Losing the advantage of your preferred attorney’s representation is an enormous disadvantage in any legal proceeding, but it is normative in guardianship cases. In addition the common practice of ex parte discussions in the absence of the ward’s attorney only adds to the suspicion that the system is fatally flawed and rigged toward the production of more wards for profit.
- Records; experienced probate attorneys will always advise a litigant to bring their own court reporter to hearings. This is because court records are notoriously flawed and sometimes frankly fraudulent. Worse these court records are routinely sequestered so that they cannot be examined for the errors they so frequently contain. Acquiring these records can be expensive and time-consuming and infringe upon the ability to fight a guardianship.
- Findings, facts and reasons for decision; probate courts issue letters of guardianship which give ownership of one human being to another. In those letters of guardianship are the formalized findings of the court which contain standardized language that justifies the imposition of a guardianship. For example, the statements may include something like “no other alternative was available to guardianship” when in fact no other alternative was ever considered by the court.
As should be very obvious by the foregoing, complaints by litigants in probate guardianship courts across the country concerning due process are very well-founded. These complaints highlight what is so wrong with probate guardianship courts and judges across the country. While the laws that clearly state that guardianship should must be the last and final resort where no other course of action is possible, these courts have become perfunctory processing facilities that create and promote a system of masters and slaves by color of law on a daily basis.
Until every American becomes aware of this existential threat to their freedom and the rights granted them by the Constitution and its amendments, guardianship will remain the dysfunctional, dystopic, fraudulent and fully corrupt tool of the court insiders to enrich themselves at the expense of innocent Americans and their families.