How to fight a guardianship—Part 1
One of the most difficult aspects of involvement in the guardianship trap is the near impossibility of fighting it. Abusive/fraudulent guardianship is a fraud racket intentionally constructed to defeat anyone or anything that gets in its way. Only the court insider perpetrators ever profit from it. Everyone else suffers.
Victims from all over the country have experienced abject failure in their attempts to reverse or mitigate such guardianships when they hire a lawyer or a series of lawyers to advocate for them in probate courts. Doing so simply enriches the lawyers who profit from the bonanza of unlimited billable hours knowing that the great likelihood is that the system and the lawyers are the only ones who ever win.
Efforts to report what appear to be clear-cut violations of civil rights and/or statutes are rebuffed at every level of law enforcement by the claim that the issue is a civil one rather than criminal. Even getting information or procuring documents is encumbered by routine court sequestration and the excuse that these matters are “mental health” in nature and cannot be made available even to family.
The archaic concept that mental health issues must be hidden away because they represent a failure in character is anachronistic and patronizing, but it is a perfect way to camouflage the incomprehensibly absurd activities that routinely pass for a legal process n probate equity court. Similarly, feigned judicial concerns about revealing the identity of an AIP are laughable when the process being hidden from scrutiny destroys the AIP, makes them dead in the law and is likely to take their life in a most horrific way. Why protect an identity when you are about to destroy it except to hide what you are doing?
At a different level, despite endless efforts to achieve legislative reform, reform of the guardianship system has repeatedly proven to be a nonstarter for those in power. This machine-like system is remarkably resistant to change even when it is so obviously needed.
Quoting Robert Crawford of Seattle, WA–” Integral to the guardianship and probate fraud (GPF) machine are the court insider components of the legal system – judges, commissioners, APS, and attorneys. The GPF machine is well-lubricated with billions of dollars from GPF targets. That lubrication ensures the complicity of public officials and eviscerates legitimate oversight. The amount of money involved is so great that it reaches every element of the legal system, ensuring a complete absence of checks and balances. GPF is the only type of elder fraud that functions with the willing and eager assistance and complicity of public officials.”
Furthermore, the absolute inability to hold court insiders responsible for their actions due to full or partial judicial immunity is an overwhelming obstacle that essentially precludes legal action against court insiders.
Attempts have been made repeatedly to activate the federal government to at least investigate if not indict court insiders for criminal wrongdoing in violation of civil rights on any number of levels. To date all have failed for a number of reasons including the so-called probate exclusion. This peculiar aspect of American law precludes the federal government from becoming involved in any matter involving inheritances in the United States. Overcoming this obstacle has proven to be extremely difficult as is the challenge of overcoming the inertia displayed by federal civil servants and agencies who are not only unsympathetic but actually hostile to such complaints from the FBI to the DOJ and other agencies.
Reversing a guardianship or being extracted from one does occasionally happen but only in the rarest of circumstances and usually as a result of media attention and concerted effort on the part of rescuers who recognized the reality that an individual has been wrongly placed in a guardianship that is not necessary or legitimate and surely not in the best interests of the ward.
A very small number of individuals and their families have elected to leave the jurisdiction of a specific state court for residency in another state but have experienced horrific retaliation from probate judges who issue writs of personal attachment to drag them back into their jurisdiction while at the same time aiding and abetting in the destruction of the estate. Even more rare is the family and victim who chooses to leave the United States and flee to another country that does not have an extradition treaty with the United States. These people forfeit everything to save the life of a loved one. They too are retaliated against by the court insiders in the usual fashion.
In the face of this bleak situation, and after extensive research and consultation, the following is an attempt to provide a coherent process and series of tactics which may have the greatest efficiency in dealing with an unwanted, unnecessary or corrupt guardianship.
By far the easiest and most effective method of avoiding the guardianship racket is to never be involved with it. While legitimate guardianships can be helpful and may even be necessary in many cases, the corrupt professional guardianships that occur in judicial hotspots across the country are fraudulent and exploitative and almost always brought about by dysfunction and conflict within families. While it is true that guardianships can be initiated by almost anyone, the seeds of those guardianships flourish best in the fertile ground of family members who can’t get along and are inflexible in their positions about authority over and care of an elder loved one. This pattern is unmistakable, and it is the Achilles’ heel of nearly every family involved in an abusive professional guardianship. Asking an attorney or judge to solve a complex family disagreement or stalemate opens the door wide for the court insiders to grease the skids to enormous amounts of easy money by exacerbating existing disharmony and initiating endless staged litigation resulting in nearly certain judicial approval of massive legal fees and Guardian fees.
In an ideal world, government agencies supposedly dedicated to the welfare of the elderly like Adult Protective Services, would be the first place to turn when concerns about elder abuse surface in or outside of families. But our world is not perfect and by virtue of their training and other factors APS workers often initiate guardianships with only the flimsiest of reasons or without a serious in-depth investigation. It’s just the way things are done.
To the naïve family member who believes that guardianship will result in granting him or her power over the estate or a loved one, guardianship would seem to be a direct path to their goal. The educated and informed family member realizes that guardianship, and especially professional guardianship is often a protracted and painful death sentence for their loved one as well as an extinction event for the estate and any inheritances that might or should flow from it. The educated family member realizes that judges in hotspots use family dysfunction to eliminate family members from consideration and instead hand guardianships over to their court insider professional guardians and the lawyers they hire to protect the guardians.
There is no panacea for dysfunctional families in a society as litigious as ours. However, in certain situations and when applicable the following may effect enough change in attitude to allow resolution rather than litigation of family discord.
- seeking consultation from knowledgeable and fully informed clergy, family therapists, social workers, psychologists or other professionals who are aware of the risks and dangers of professional guardianships can at the very least define the risks involved in not resolving family disputes. However, it is important to note that these very professionals may actually be the ones who decide to initiate a guardianship proceeding in particular social workers who work in hospitals or other facilities that generate a lot of guardianships.
- alternative dispute resolution
- elder caring coordination
- informal negotiations
As a last resort when all else seems to have failed removing the allegedly incapacitated person out of state or out of country is a last gasp desperate attempt to avoid guardianships before they begin. It is much easier to regroup in a different state than it is to fight an endless losing battle with the legal system in your own state. This issue is discussed in detail in my book “guardianships and the elderly the perfect crime “
All of these are discussed in my book.
How the process unfolds
Nearly all guardianships transpire in a predictable sequence of events.
- Identification of a vulnerable individual
- Request for incapacity determination
- Series of secret ex parte meetings w Judge and one side
- Arrangements ordered by the court for the evaluation of the allegedly incapacitated person including the creation of an initial inventory
- appointment of an emergency temporary guardian when indicated
- Seizure of all assets by temporary or permanent guardian
- Nullification of advanced directives
- Evaluations of the allegedly incapacitated person and reports to judge
- Hearing on incapacity
- Issuance of letters of guardianship
- Actions by the guardians and lawyers which generate billable hours, including relocating the ward, changing medical providers, changing service providers, isolating the ward from family, overmedication of the ward with its consequences
- Dueling court motions, depositions and hearings that can go on for years which generate more billable hours
- Approval of all billable hours by the court after expert testimony justifying the fees
- Strawman sales of the ward’s property
- Cremation of the ward against prearranged plans, the death should end the guardianship but often the guardianship continues for protracted periods of time while paperwork is filed
- When appropriate appointment of a curator whose job it is to protect the estate during the probate of the estate
Given the obvious complexity of the system, it is amazing to see how quickly it moves when it comes to creating a guardianship. The entire process can be completed in less than a month, mostly in secret. In contrast, trying to escape or argue against the guardianship can and often does take many years during which time the estate is pillaged by the court insiders. During that time the shocking absence of significant monitoring or supervision of the process allows actions and decisions that uniformly advantage the court insiders at the expense of the victim, the family the estate and the well-being of the ward. Despite the clear-cut intent of the legislature that guardianships not only be a last resort but always be conducted in the best interests of the ward, abusive probate guardianships routinely are the first and only resort in hotspots courts and serve the best interests of only the court insiders.
Since phases 1-3 typically occur in secret, there are no effective deterrents once an incapacity determination request has been filed, other than the prevention methods mentioned earlier.
Challenges in Phase IV
When confronted with the legal challenge of guardianship the natural reflex for anyone who knows their rights in this country is to hire an attorney to vigorously advocate for them in legal proceedings. Very few of the general population have a deep enough understanding of the way lawyers work to understand that most lawyers never step foot in equity probate court. Even most estate planning lawyers simply write estate documents and rarely or never litigate in court; most people do not know any litigators or have any experience with them and do not understand that being a litigator is a highly specialized field practiced by only a few specialty attorneys who spend their time in front of the same probate Judges daily. While the initial reaction to the shocking knock on the door announcing a potential guardianship would be to call your family lawyer, and most people do exactly that, family lawyers are rarely litigators and rarely spent any time in front of probate Judges. As a result, expectations of them being effective in altering the course of a guardianship are rarely met. The average victim family often hires as many as six lawyers before they either give up or ultimately lose their case– almost never do these lawyers achieve victory in hotspot probate court rooms.
Complicating this issue even further is the reality that high level, first tier successful probate litigators almost always have done work for opposing counsel or opposing litigant guardian and thus have a conflict of interest which they can use to decline a case. This is an important factor for litigants who are then forced to choose from a constellation of second or third tier attorneys to represent them and whose chances of successfully litigating their position are almost zero.
Stage IV does present an opportunity to be proactive in protecting the AIP and her property.
Incapacity determinations are the spark for judges that allow them to kickstart the Guardianship machine’s engine. Coupled with a non-sworn, unverified allegation of potential vulnerability from a court insider, they are the only evidence needed or even allowed by the judge to justify the judicial imposition of a life sentence of being a ward owned by another human being.
In this stage of an abusive or fraudulent guardianship, testimony or evidence supporting capacity from any source other than the examining committee is routinely ignored, discarded or rejected by the judge and is an early warning that the proceedings are rigged.
Every court has unique rules about these exams, so we will use Florida’s system as an example.
Three people are appointed by the Judge to perform an examination on the AIP—one must be a physician. The other two can be anyone the judge finds appropriate and as such judges typically appoint available social workers, nurses, psychologists or others with some type of experience with elders and incapacity. They have 2 weeks from appointment to complete a written report to the judge. If 2 of the 3 examiners agree, then the AIP will be deemed incapacitated and almost certainly placed in a guardianship.
Opportunities for objections and intervention that can buy time or prevent a questionable guardianship:
- Credentials of examiners can be challenged. PA’s or NP’s cannot be substituted for Physicians.
- Licensure, specialty and expertise of “physician” should be confirmed and can be challenged if inadequate. PhD’s are not physicians, but osteopaths can be. Chiropractors are not physicians.
- Often examiners have a conflict of interest in that they make their livings profiting from the incapacity industry in facilities and businesses. Object if that is the case.
- If reports are not filed timely, they are void and should not be used
- Exam durations and extent are often over reported and fake. Be present at the exams to witness them and challenge any discrepancies found. Video the exams if legal and possible.
- Take care to prevent the AIP from being drugged before the exams. Do not leave her alone with any court insider.
- Make sure there is no barrier that prevents the AIP from appearing on her own behalf at any hearings, like Dr. Appointments.
- Obtain a medical certificate of capacity for the AIP before the exams begin and formally submit it as evidence ASAP.
- Coach the AIP on what to expect in the exams
- Make sure that any ADA assistance is in place prior to exams, like hearing aids, interpreters, glasses, etc. Courts have ADA coordinators whose job it is to provide these. Make an emergency motion to the court to guarantee these are in place prior to any exam.
- As a last resort, leave the state with the AIP to a different jurisdiction.
The Inventories and Appraisals in abusive guardianships
One of the first things the court orders a guardian to do is to create an inventory of the assets of the ward. This document will be the baseline for all future accountings of the ward’s assets. In corrupt cases, it is the first and easiest thing that a guardian can manipulate and falsify. Even without falsifying the initial inventory, missing valuable items not found on later inventories are often said to have “disappeared” or are “misplaced or missing”–even including large sums of money from known accounts which vanishes or cannot be accounted for. Amazingly, judges routinely just accept such explanations and hold no one accountable other than blithely accusing the family of theft or “improper taking” with no proof or evidence because in the eyes of the judge, the guardian can do no wrong.
When guardianships end, it is commonplace that items of value like rings, watches, jewelry, artwork, stamp or coin collections and the like have simply vanished completely or cannot be found where the guardian placed them. Since there is no recourse and no way to find what the guardian hid, the valuables are deemed lost, although they have been known to magically re appear at later dates, like showing up in antique stores owned by relatives of the guardian or lawyer or as jewelry worn in public by a chief probate court judge in Florida. If the items are found, often rather than distributing them to heirs evenly, the guardians force the heirs to bid on auction against each other for what should have been theirs all along.
Of course, some things are harder to inventory—like the gold from a ward’s teeth or their expensive furs mischaracterized as fake and worthless. Or their dentures, the absence of which prevents a ward from eating. Or their vehicle which can be sold overnight to raise money for guardian fees for pennies on the dollar to a friend or colleague.
This nefarious activity is abetted by phony appraisals.
Courts will accept any appraisal provided by a guardian. But professional appraisers know well that there are several types of appraisal techniques to value real or other property including replacement value, current market value and others. Each can be manipulated by the appraiser to either over or under value a property depending on the purpose of the appraisal. Appraisals are notoriously subjective and unreliable when it comes to items like jewelry, collections, antiques or artwork. Evaluations of real property are equally susceptible to manipulation so that a guardian who wants to sell the ward’s property for a quick turnaround and strawman sale can present the court with a very low estimate of its value which the court is likely to accept without question. The Guardian can then turn around sell the house for full value and the court is none the wiser since that income is not reported to the judge nor are taxes paid for the instant profit made by the guardian.
Be vigilant and verify every document handed over to the court by the professional guardian and their lawyer. Immediately object to even the smallest deviation from the truth.
Stage IV of the guardianship is the ideal time for several legal maneuvers that might stop or at least slow down the process. Unfortunately, these tactics require the utilization of one or more attorneys which often are an impediment to the execution of these tactics.
These tactics include but are not limited to:
- motions to the court complaining of of conflicts of interest among and between the guardians and lawyers and even judges on the basis of any connections or prior shared cases, business interests, membership in clubs, shared social networks, prior donations to reelection campaigns with the aim of voiding the appointment of an inappropriate guardian and moving to a point of family guardian
- motions to dismiss a court insider consequent to any prior complaints to any governing or monitoring body
- motioning the court to formally recognize legitimate advanced directives immediately, thus preventing the argument that the advanced directives could not be found
- Request for clarification– in which the judge is asked to explain any rulings that have been made and the reasons for them.
- Notification that the case is adversarial– a tactic which if not applied at the earliest possible date allows the court to proceed as though there were no objections to the entire process.
- Request the judge to recuse him or herself– if executed properly and the judge is at least somewhat responsive to criticism for valid reasons, another judge may be appointed. This is risky because you never know who the next judge is going to be and should only be used when there is absolutely strong belief that the judge is prejudiced and will not admit it
- Finally, the case will be frozen when a formal appeal to the local District Court of Appeals is made and accepted.
- There is a less than 50% chance that the appeal will be accepted by the District Court of Appeals
- if accepted there is a less than 50% chance that the result will turn in your favor
- appeals can be very expensive