In speaking to the countless numbers of people across the country who call our hotline to look for help to be rescued from the abuses of guardianships, one question keeps coming up over and over again—” isn’t there anything I can do legally to stop this insanity?”
Sadly, the typical response to this question is to hire one lawyer after another who fail in succession despite charging enormous legal fees. The vagaries of equity court, the absence of a jury, the absence of rules of procedure and rules of evidence, the likelihood of conflicts of interest skewing results, the near impossibility of finding an effective counsel who is not riddled with conflicts of interest and a myriad of other factors tend to cripple any attempts at redress.
To be clear, I am not an attorney and I cannot give legal advice. Despite this, there do appear to be causes of action– especially in commercial law– that are rarely considered in the probate arena despite the fact that several of them would appear to be directly applicable in abusive probate cases. So to think out-of-the-box, let us analyze several of them.
A common scenario that is reported to us is when a family member– irrespective of their intentions or motivations– petitions the court to become the guardian of their loved one, expecting that the process will result in their appointment in what they considered to be the best interests of the ward. Unbeknownst to the family member, the guardianship flows to a stranger third-party professional guardian who proceeds to drain the estate and act it what is clearly not the best interests of the ward by any definition.
This is a cause for action under fraudulent inducement.
In the above described case the family member “reasonably relied” upon promises of future conduct made by another party, namely the professional guardian when she accepted letters of guardianship pledging to act in the ward’s best interest.
Fraud in the factum-a type of fraud where misrepresentation causes one to enter into a transaction without accurately realizing the risks, duties, or obligations incurred occurs by deception– causes the other party (the family member) to misunderstand the nature of the transaction in which he or she is engaging, especially with regard to the contents of a legal document
A similar cause of action in this type of case is breach of contract.
Breach of contract is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party’s performance. Breach occurs when a party to a contract fails to fulfill its obligation(s) as described in the contract, or communicates an intent to fail the obligation or otherwise appears not to be able to perform its obligation under the contract. Where there is breach of contract, the resulting damages will have to be paid by the party breaching the contract to the aggrieved party.
The key in such a scenario is also related to the letters of guardianship granted to and accepted by the professional guardian who fails to act as expected.
Similarly, unjust enrichment may apply in such cases as well, contracts or not.
Unjust enrichment occurs when a person unfairly gets a benefit by chance, mistake or another’s misfortune for which the one enriched has not paid or worked and morally and ethically should not keep. A person who has been unjustly enriched at the expense of another must legally return the unfairly kept money or benefits. Unjust enrichment is an equitable doctrine applied in the absence of a contract and used to prevent one person from being unjustly enriched at another’s expense.
Five elements must be established to establish such unjust enrichment:
1.An enrichment– to the guardian or lawyer
2.An impoverishment– of the ward or family member
3.A connection between the enrichment and the impoverishment-the imposition of the guardianship
4.Absence of a justification for the enrichment and impoverishment– massive legal fees in staged litigation that is not justifiable
5.An absence of a remedy provided by law– it is not clear what such a remedy would be
Lastly, our scenario qualifies for another action, that of bad faith or more specifically in guardianship pharisaism.
Bad faith is “a sustained form of deception which consists of entertaining or pretending to entertain one set of feelings and acting as if influenced by another”. it is synonymous with double mindedness, with disloyalty, double dealing, hypocrisy, infidelity, breach of contract, unfaithfulness, pharisaism (emphasizing or observing the letter but not the spirit of the law), tartuffery (a show or expression of feelings or beliefs one does not actually hold or possess), affectation, bigotry, and lip service.[
Bringing any of these actions in an equity or civil court is no guarantee that justice will be done or that redress is available but if nothing else these terms as described can help victims better understand what is happening to them in the probate racket. It may even be possible for some enlightened attorney to understand the bonanza in legal fees that would accrue to such an attorney in the event they successfully litigated such actions