It is my privilege to communicate with you as Founder and President of our national 501(c)(3) organization Americans Against Abusive Probate Guardianship. Our organization has for the better part of a decade been deeply involved in matters related to abusive guardianships occurring throughout the country and currently represents over 1200 individual multigenerational families who have been adversely affected by the abuses we have chronicled on our website www.aaapg.net as well as other social media outlets. I note that I have tried on several occasions to speak with staff on this committee including Samuel Dewey over the years and hope that this time will be more productive.
My recently published book https://www.amazon.com/Guardianships-Elderly-Sam-MD-Sugar/dp/0757004334 has been widely acclaimed as a prime source of information about the constellation of abuses found so frequently in guardianships in our country. I would be more than happy to arrange through my publisher the provision of copies of my book to all members of your committee and staff to use as a reference in their deliberations going forward. If you will provide me the appropriate names and number of volumes I will be sure to arrange for their immediate shipment to you at no charge.
In your letter of June 20, 2018 you have requested comments data and other information with specific reference to four questions to which I will now address my comments.
Question 1: What recommendations do you have for collecting information about these cases in order to better inform federal, state and local officials?
Our membership and leadership can attest to the fact that there is no reliable source of data available on guardianships as a result of the vast majority of these cases being sequestered on the grounds that guardianships are mental health issues. This sequestration is a reflection of the antiquated mental health views taken by the courts. How absurd is it to protect an individual’s name when you are taking their life in the form of a guardianship?. Our annual surveys since 2014 had indicated and experts in the field corroborate the notion that between 10 and 14% of all guardianships in the United States (professional in particular) and likely more involved criminality of one sort or another. Since guardianship is managed by each individual state with specific state-based statutes and probate rules, only the federal government has the capability of demanding and collecting aggregate data to even begin to get a handle on merely the number of guardianships in this country. As you are aware estimates vary widely from 1.5 to 3.0 million at any one time. It is fair to say that without knowing the scope of the issue, proposing solutions for it is folly. I therefore recommend the creation of a national database with mandatory reporting from all 50 states supreme courts. The data to be collected would include:
- the total number of all existing guardianships classified by family versus professional
- the number of new guardianships created annually sorted by zip code
- the number of guardianships closed annually and the reason for termination of guardianship including restoration of rights
- the value of the estate of the allegedly incapacitated ward prior to guardianship and at guardianship termination
Question 2: What recommendations would you have for actions that can be taken to ensure that individuals subject to guardianship are protected from exploitation and abuse by their guardians?
Based on self-reported and collected anecdotal reports as memorialized in our national database which contains reports on over 600 highly documented guardianships over the last 20 years (which undoubtedly represent only a tiny fraction of all abusive cases) the following appear to be the most common precedents, triggers and aggravating factors in American abusive guardianship:
- Court abrogation of advance directives is by far the most common complaint documented in our national surveys. State courts must be forced to take note of and scrupulously adhere to properly executed advance directives. Because they do not uniformly do so opens the door to abuses by predatory court insiders.
- The lack of an effective complaint Department is a universal problem amongst all our victim families. The establishment of a Federal watchdog organization with the ability for criminal referrals rather than simple administrative censure must occur as part of our normal checks and balances in government, which currently do not exist in the probate system.
- Guardians are not licensed and therefore not concerned with losing such a license. There is no excuse for not creating a national licensing procedure which would hold particularly professional guardians to at least minimal standards of performance and contain penalties for noncompliance.
- The outrageous costs both in terms of dollars and mental anguish of fighting against an abusive guardianship is a major destructive force against families. A cap on legal fees would be a first step in the rational control of irrational costs of guardianship.
- The total lack of responsiveness let alone assistance from all levels of government at the state and federal level to complaints about abuses in guardianship can no longer be tolerated. The abuses that are now being reported so often in the media are no secret to state governments, state supreme courts, state attorneys general and governors. Their failure to respond to thousands of appropriate and well-constructed requests for assistance from families is a stain on our country. a good example is the recently formed elder justice initiative created by Senate Bill 178 by Sen. Grassley and Sen. Klobuchar and signed into law in November of 2017 by president Trump. Personal attempts by yours truly to present hundreds of cases to Director Antoinette Bacon at the Department of Justice have been ignored. This level of impertinence cannot stand. We must find ways to involve the federal government in the oversight of the state guardianships systems and over, whatever obstacles stand in the way of that effort. It is clear that any expectations of realistic assistance from the states will not be forthcoming because of the income stream created by these very profitable abusive guardianship cases.
- Federal RICO actions are the only possible way to address what is in some cases a Mafia like ring of predatory court insiders that prey on the unsuspecting elderly, especially in states with a high proportion of seniors and particularly in counties that are wealthy. Creation of a task force within the offices of the United States attorney in hot spot districts like Florida, Nevada, Arizona, Texas, Michigan, New Mexico ( states where we have documented egregious abuse and indifference to complaints from the public) to receive public complaints that require RICO actions must be established and funded.
- Creation of and funding for an independent standing subcommittee composed of victims organizations and legislators to collect information from the public on ongoing guardianship abuses to complement objective data collection efforts by the committee as a whole.
Question 3: What recommendations do you have for ensuring that guardianship is imposed only when necessary and that it is removed if it becomes no longer necessary?
Every step in the guardianship creation process is prone to abuse. One of the most egregious of these steps is the evaluation of the allegedly incapacitated person by various iterations of examiners or examining committees. While it’s beyond the scope of this communication to go into the details of why incapacity is a legal and not a medical diagnosis, in the modern age of medicine it is outrageous to believe that a decision as vitally important as determining incapacity could be left to nonprofessionals/non-experts in any State. The process for the examination of allegedly incapacitated persons is uniformly unacceptable. The concept of incapacity is so fluid and so poorly defined that it is much too easy for an examiner who is paid handsomely by the court and makes his living doing these examinations to blithely declare what the judge expects him to, thus depriving an innocent individual unnecessarily of his rights and starting down the path of being owned by a total stranger. There should be federal standards for what constitutes incapacity and those standards must be met in full before any court takes away an individual’s rights and life.
Such a model already exists in the Veterans Administration guardianship system in which disability is scientifically determined by expert examiners so that appropriate help can be given to allegedly incapacitated persons and especially their families at appropriate levels without diversion of SSA and VA and other benefits and assets to professional guardians except when absolutely necessary.
Regarding restoration of rights, our group’s experience is dismal. While guardianships can be created almost instantly, petitioning courts for restoration of rights can take years during which time assets are drained lives are wasted and families tortured. Again this is a failure of the state court systems, but it is not a secret to the bar and state supreme court justices. Withholding federal funds from the Supreme Court and the probate courts it runs would be an appropriate stimulus to force compliance with the need to streamline restoration of rights–which is supposed to be a priority matter in state courts– when a suggestion of capacity is submitted to the courts.
Question 4: What best practices or other policies would you recommend to policymakers considering guardianship reforms?
Recognizing that these reforms would need to be imposed by the Fed on the states (which is a complex issue, but the only hope for change), the following reforms would substantially decrease the incidence of abusive guardianships throughout the country:
- Capping legal fees in guardianship cases
- Creating federal standards for a medical legal diagnosis of incapacity
- Requiring the licensing of all professional guardians
- Eliminating judicial immunity or partial judicial immunity from court insiders who act in violation of State statutes.
- Creation of a national center for Adult Human Trafficking in guardianship abuse including access to the Department of Justice attorneys for the prosecution of criminal misconduct in guardianships
- Ending unnecessary sequestration of guardianship cases
- Withholding federal funds from any state court system that fails to comply with its own state statutes regarding elder abuse
- Promotion of, federal funding for and pilot projects for alternatives to guardianship, especially supported decision-making, impartial mediation and conciliation processes.
I would be most pleased to appear before the Committee at any time representing the citizens most invested in reform, the countless victims of guardianship abuse in America.
This committee has been hearing fervent testimony and complaints from citizens and experts about abuses in guardianship for over 50 years. It is our sincere hope that now is the time that the Federal government finally takes this issue in hand and advocates for its constituent families by creating federal protections and safeguards in state probate courts needed to protect todays vulnerables and the coming silver tsunami of baby boomers who will develop the need for protections in the near future.