Probate Tricks of the Trade Part 2
You can see part 1 at
Part two
The middle of a guardianship
Once the guardianship train leaves the station it is inexorably gathers speed and momentum making it nearly impossible to stop. As always everything that happens in guardianships whether they are abusive or not so abusive is a direct result of the attitude and rulings of the only person whose opinion matters at all, namely the judge.
The role of the judge in equity is particularly important because his rulings are what drives the entire process. His word in his courtroom is like the word of God himself. If you don’t like what he says your only option is to spend tremendous amounts of money to take his rulings to a District Court of Appeals where it best you have a 50-50 chance of the case even being heard let alone reversed.
The judge is required to serve justice, be impartial and follow the statutes. But the very nature of equity courts allows the judge enormous latitude to simply do what he thinks is right under the circumstances. A prime example of his exceptional prerogative is the issue of undue influence. Typically, the person or persons who would object to a guardianship are the people who know their loved one the best, have spent their own time and money carrying for their relative four years. And, of course– unlike a professional guardian –they do not get paid for their voluntary time and effort. But, because they have spent so much time with and around the allegedly incapacitated person, if they strenuously object to the guardianship the court insiders will fabricate a story that says that the family member has exercised undue influence on the allegedly incapacitated person and in some way has harmed them or taken something from them that disqualifies them to be the family guardian as might have been requested in the advanced directives. It is not uncommon for us to hear stories of loving family members who have never had a drop of alcohol in their lives and who would not dream of taking illegal substances being called alcoholics and drug addicts. These allegations are made by court insiders anxious to cash in on another guardianship and they will say anything to remove anyone or anything that stands in their way. They can do this because attorneys in hearings are never put under oath which means they can lie with absolute impunity. If the family member is caught lying, which of course is the exact and precise purpose of depositions during discovery, to catch someone in an inadvertent lie, the consequences are severe with repudiation, unfavorable rulings and even fines and sanctions. But if a lawyer gets caught in a boldface lie, he simply says” whoops I’m sorry” and that’s the end of it. It is the classic double standard that always favors the court insiders.
As in Florida, many states require that a potential ward be examined by some combination of doctors and other examiners. There are requirements for their reports to contain certain amounts of information, conclusions about the status of the proposed ward and recommendations to the court. This process in addition to being incredibly subjective is highly prone to corruption and manipulation. First, the pool of examiners is selected exclusively by the judges including the chief judge of the district. This instantly creates bias as the tendency for the judges is to appoint examiners who will decide that incapacity is present more often than not. In fact, until recently in Florida examiners did not get paid unless they found that the allegedly incapacitated person was incapacitated– talk about a perverse incentive! Second, judges tend to appoint examiners they can rely on which means that the same examiners get appointed over and over and over and will likely produce reports that claim incapacity far more often than it is actually present. This is called play along to get along because each of these examinations is worth somewhere between $300-$500 to an examiner. That can add up to a lot of money by doing a lot of extremely fast and intentionally superficial examinations that reach the foregone conclusion of incapacity and the need for a plenary guardian. As a result of court challenges, many of these examinations have been called into question and ultimately struck down because not only are they superficial and non-comprehensive but they are also hearsay and should not be allowed without in person testimony from the examiner. Of course, that too is all up to the discretion of the judge who is almost certainly not inclined to challenge, or question trusted examiners no matter how inadequate they might be.
Another seemingly innocuous move that guardianship judges routinely rely on to disenfranchise anyone who objects to the guardianship is the appointment of a guardian ad litem. Guardian ad litem is not a guardian. The sole purpose of a guardian ad litem is to report to the presiding judge about their subjective assessment of matters before the court. Of course, GAL’s are paid from the estate of the potential ward and can rack up thousands of dollars’ worth of legal fees. Typically, the appointed guardian ad litem is someone on whom the judge has relied many many times and whose opinion is almost certain to be in line with the judge’s perspective and against anyone who is opposed to the guardianship. Such an appointment further creates an uneven playing field that favors the production and maintenance of guardianships.
One of the most important steps in a guardianship that should be monitored very closely is the creation of the inventory. The inventory is a comprehensive list of all the assets of an allegedly incapacitated person including their personal effects, memorabilia, pictures, furniture, clothing, vehicles, and of course every cent of their financial assets matter where they may be hidden or stored. It is this inventory that creates a permanent record of the assets of the ward prior to the establishment of a guardianship and at least in theory the inventory should be maintained and returned to the ward at the end of the guardianship. Unfortunately, when a guardian creates a paper inventory, typically it is done alone with no supervision or monitoring and thus it is highly suspect and incredibly prone to skullduggery. We have seen instances where entire accounts worth vast amounts of money simply disappear between the time of the beginning of the guardianship and the end. Items of value that should have been put on the inventory seem never to have existed. Portable valuables like paintings jewelry, artwork and the like often fail to make the inventory list and just seem to disappear. You might ask, what happens when there are discrepancies in the inventory? You might be surprised to find out that the answer to that question is—nothing. Judges seem to believe that things can simply disappear into thin air including investment accounts, insurance policies, expensive jewelry and even automobiles.
Another gambit with the inventory is the appraisal scam. There are several ways to describe the appraised value of any property. These include but are not limited to replacement value, market value and liquidation value. Depending on the desired outcome a clever guardian can employ a compliant appraiser, for example a real estate appraiser, to assign a value to a given piece of property that can be artificially too high or too low as long as the appraisal could be justified by some objective process. When assessing the value of property for the inventory the guardian will endeavor to create the impression of less value within the estate so that when the item is sold to an ally of the guardian for pennies on the dollar, that property can be turned around and sold at full profit in what is called a strawman sale. The profits are never reported to the court or the IRS and the drastically reduced proceeds of the sale rarely go to the benefit of the ward but instead are used to pay outstanding accumulated but not yet presented to the judge for payment legal and guardian bills.
There are a number of twists and turns and wrinkles to the appraisal scam which can greatly impact profit to the court insiders at the expense of the estate and the ward.
Another way that the court and the court insiders pull the wool over family members is to create two different kinds of guardianships when none is needed at all. By splitting a guardianship into a guardian of the property who controls all the money and guardian of the person who makes healthcare decisions it would appear that the court is distributing responsibility and authority in a responsible fashion. In fact, this tactic is used to further disadvantage family members who might be appointed as guardians of the person and thereby be responsible for all the healthcare decisions and expenses of the ward. But because there is another guardian in charge of the money the guardian of the person often has no money from the estate to pay for medical services supplies or equipment. This is another example of the court creating more problems than it ever solves which is a recurring theme in abusive guardianships.
But of all the deficiencies and improprieties that characterize hotspot guardianship insider corruption, ex parte meetings with the judge are particularly egregious. Judicial ethics demand that both sides of an issue receive impartial attention from the judge. It is illegal for a court insider to meet with the judge about a guardianship matter without at least notifying the opposing counsel of the meeting. Ethical rules typically forbid a lawyer from even speaking to or contacting the judge or the opposing party without the other party’s lawyer also being present. A breach of these rules is referred to as improper ex parte contact. These private conversations are the equivalent of smoky back rooms were crooked politicians trade money for power. Ofttimes opposing counsel is not even aware that these meetings have taken place. The opportunity for subverting the intent of the statutes with such secret meetings should be obvious. Judges actually schedule time every week for ex parte meetings which are supposed to be a way to deal with time sensitive emergencies that arise during the case. In probate however, with no juries to act as a deterrent to the agreements that come out of some of those ex parte meetings, they can cost an individual their freedom, their estate and ofttimes their lives.
Probate insider lawyers make a great deal of money by arguing—way too often that means acting, preening, screaming and lying– in front of the judge and shuffling legal papers around, and playing games with other people’s lives. They can engage in endless staged and pointless litigation the purpose of which is only to generate fees. Only rarely do these proceedings have anything to do with interpreting the law which is so clear cut that hearings and cases should last minutes, not decades. The arguments made in probate court more often than not devolve into cynical nonproductive name-calling, hysteria, abuse of process, barratry, and falsehoods all in the name of vigorously representing their client—for big money. They know that this one-sided legal theater will shock and intimidate anyone who has never seen it before. But because these tactics are so repulsive and anti-American the insiders know that they will stimulate people to do their best to fight back, save their own reputations, rescue an innocent person from death by guardianship and save their legitimate inheritances. They also note that in doing so those who object to the process of the guardianship will spend every last dime they have, if necessary, in legal fees. Every dollar they spend that goes to their own lawyers (over the course of their ordeals on average litigants hire and fire 6-7 lawyer who likely is a court insider as well) will generate at least that much in revenue for the other side and those fees will be paid in full out of the estate of the ward. The net result of this is that family members are legally abused and that those abuses paid for by not only their own money to pay their lawyers, but what would’ve been their own inheritance goes to pay the outrageously inflated fees for the lawyer that is abusing them.
More coming in part 3