Isolation of family members from loved ones is one of the greatest illustrations of how judges in Probate Equity courts have miserably failed to do their jobs.
I recently had the opportunity to listen to testimony given to a subcommittee of the Florida legislature by unelected officials in charge of Post guardianship imposition of investigations and stewardship over the horribly broken guardianship program in the state of Florida.
In their remarks they repeatedly mentioned they were on the lookout for cases in which family members made complaints of imposed isolation of the ward. Over and above the financial devastation that illegitimate guardianships create, isolating the Ward from family is the most common and most heartbreaking complaint we hear from families caught in the guardianship gulag.
The complaint is so ubiquitous that it prompted me too inquire from the latest round of callers from the public that we receive “what was the charge that convinced the judge and the guardian to isolate you from your loved one”? The answers I got were amazingly uniform.
The excuse the court uses most commonly is that any interaction between the ward and their loved one poses a “danger” to the Ward, though it is never stated exactly what danger a family member with no history of violence or criminal activity could possibly perform. Second on the list is the guardian flat out lying to the judge about the fitness of a family member to exercise their constitutional right to commiserate or consort with their loved one by falsely claiming that the litigant or complainant family member is either a drug abuser or an alcoholic or some other type of reprobate evil doer– with no shred of evidence or proof of their outrageous claims. Next on the list is the allegation that the family member is somehow interfering with either the guardian or the doctors or the medication of the ward.
Particularly when the ward is in a privately owned lock down facility, such rulings by the court allow the facility owners to demand that law enforcement arrest family members who attempt to see their loved ones for trespassing on private property.
A bill (S.B. 110) is working its way through the Michigan legislature that would help incapacitated adults whose caretakers are cutting them off from family and friends.
The bill would allow a court to appoint a special purpose guardian for the limited purpose of only supervising the incapacitated individual’s access to people they want to see or talk to.
After determining that the incapacitated person wants contact with the person who has been barred – and that the contact is in the best interest of the incapacitated person- the goal is to provide a legal avenue for allowing visitation and other communication when a caretaker says no.
Courts are supposed to provide access to justice. It is unjust and frankly unconstitutional to allow one party to seclude another from seeing their loved one(s). Especially in their golden years, why would you want to bar somebody from having that time with their loved one? While Family members may not get along, the person who had these children – or an uncle or aunt that misses their nephew or niece – should have the benefit of seeing that loved one.
Another approach, and that required by Constitutional law, is to stipulate—as stated in Florida law– that a guardian may not restrict visitation or communication rights unless it can be proved by hard evidence that it is absolutely necessary to protect the person from physical or unusual emotional harm or some other very good evidence based reason –not simply a an unproven and punitive excuse. Just seeing a ward cry –as so often happens in long awaited reunions–when they see a loved-one they have longed for does not fill that criterion.
These situations often arise as the result of long-standing family tensions and sometimes create heartbreaking situations in which concerned family members and vulnerable adults have no access to each other, to their mutual detriment and long-standing distress.
Such actions must apply to institutional settings as well as home settings and assure that every guardian promote access consistent with the incapacitated person’s wishes and welfare.
Though it is disturbingly commonplace in hotspot probate courts, handing out stay away isolation orders should be the last thing a probate judge ever does. And those venal orders– which are a huge red flag indicating abuse–should be issued only in the rarest conditions and be immediately withdrawn at the first sign of a family member’s complaints.
These issues are the best illustration of how the court insider’s license to lie—particularly in closed-door ex parte meetings in which the accused has no representation — without consequence to an equity Court Probate Judge can have devastating consequences. Every one of these lies requires the accused, if they are even ever given the chance, to prove a negative. How can anyone prove they are not an alcoholic or a drug abuser or a criminal? How is it possible for an innocent person to be smeared in such a vile fashion with such horrific results and yet given no opportunity to contest the lies being told about them? Family members cannot undo the damage done to their standing in the eyes of the judge when all the judge has ever heard is horrific lies that are never corroborated or proven and just simply accepted as gospel truth because they come from the mouth of a court insider?
This situation and so many other uniform findings throughout dozens of probate courts in Florida and across the nation illustrate how Probate Court proceedings work very much like a special prosecutor. A special prosecutor gets to present his subjective perspective to a grand jury or special-purpose judge who will only hear that side of the story. Whether the other side of the story, and there is always another side, is ever heard before indictment or decision is made is unpredictable. It is very much akin to shoot first and ask questions later except the questions are never asked later.
In the case of probate where secret ex parte meetings with guardians and their lawyers are the rule rather than the exception and where court records are routinely sequestered a family member may not even know why he has been isolated until long after that order is written. By that time it is far too late to even try to expunge or reverse the evil lies and the damage they do.
Like just about everything else in abusive guardianship this is entirely the fault of bad judges. Period.
As a society we have the absolute right to expect that all judges will be unbiased, fair and will do their job properly and with integrity. But probate hotspot court judges have let us down. They cater to the wishes of court insiders they work with daily to the detriment of everyone else. They fail to do fully half of their job on a regular basis. While they are very good at running a guardianship creation factory, they earn consistently failing grades for–as is their absolute duty— failing to monitor the guardianships they create to assure everyone involved that no abuse, neglect or exploitation results from them. Such consistently poor performance is simply unacceptable in this day and age. Perhaps in years gone by when there was no social media or Internet these judges could get away with anything and everything because it was so hard to even discover what was going on in their courtrooms. That is no longer the case and because of increased visibility, anyone with a computer and the will to look can see the blatant disregard for the law, fairness and in partiality displayed by these judges in their personal fiefdom courtrooms.
Some people think that new legislation is the answer to dysfunction in the probate courts. And while new laws would certainly indicate the concern of legislators around the country for the abuses that they are now publicly appearing in the media, it is not clear why these conflicted, co-opted judges would follow new rules when they’ve never followed the old statutes. Some people think is that licensing Guardians will make a difference,and it might, but as long as guardian abuses are considered to be civil matters rather than law enforcement violations it will matter little whether they are licensed or not. Some people think that removing the profit motive from professional guardianship and in particular, placing limits on legal fees for guardianship attorneys is the answer to eliminating professional guardianship abuse and it might be. But the likelihood of the BAR ever allowing such a step to take place is miniscule.
In my humble opinion the most effective way to cut the legs out from under the horrific system that has been imposed on us by the powers-that-be –in particular the Supreme Court– is to engage with and encourage law enforcement to do their jobs since too many of the judges will not do theirs.
Whether it is federal lawsuits- RICO or class action-, independent Watchdog oversight of the Courts like NIAGRA, aggressive media exposure, judicial recalls, complaints to the judicial qualifications Commission, activism to prevent re-election of the most egregious judges, public demonstrations at courthouses and at the Supreme Court headquarters, or any other form of legitimate public protest, it will be far more effective than legislative nibbling at the edges of the current statutes or having the RPPTL lawyers ram the revised “755” revision of the guardianship statutes down our collective throats to enhance their business model profits.