For the naïve visitor to the inner workings of probate court, it might come as a surprise to know that there are a number of underhanded tricks employed by court insiders that give them an unfair advantage and almost always guarantee that the guardianship production mill continues to create lucrative cases in which massive legal and professional guardian fees can be collected.
The very beginning of the process presents the opportunity to buffalo the judge into believing that the allegedly incapacitated person is so demented and fragile that they cannot even make a court appearance. In many states statutes demand that an allegedly incapacitated person has the right to appear at their own incapacity hearing. The trick is then for the lawyer to claim that the allegedly incapacitated person waives their right to appear at their own hearing. Of course, in reality, that narrative is far from the truth. In many cases the allegedly incapacitated person is not even told there is a hearing. In other cases the court insider arranges for the unfortunate soon-to-be wards to be overmedicated to the point where they are in a zombie like state and even if they were to show up at their hearing it would only reinforce the judge’s preconceived notion of their incapacity. There are also situations in which the underhanded probate lawyer claims to have notified family members of the hearing but incredibly addresses the notification to family members incorrectly or sends it after the hearing has already taken place despite claiming that service was delivered appropriately and on time and to the right address. Another twist on this tactic is to claim that family members are somehow unable to be located even though their names are in the phone book and easily available with even the most cursory Internet search. All of these underhanded tactics violate the very essence of due process a key component of which is the timely notification to all interested parties of hearings.
Another underhanded trick that occurs at the beginning of a case is to conceal or fail to mention the presence of properly completed advanced directives. By eliminating or delaying the presentation of those directives to the judge, the assumption will be made by a complicit judge that those documents don’t exist. This mitigates towards the rapid appointment of an emergency temporary guardian and ultimately the imposition of a permanent guardianship. A twist on this maneuver is to withhold the documents until well into the hearings so that they are meaningless after the appointment of an emergency temporary guardian. Some judges even go so far as to read the advanced directives and if they do not contain a clause that specifically prohibits the appointment of a professional guardian , the judge will appoint one using the logic if there is no prohibition against it then it’s perfectly okay to appoint one . The judge also has the opportunity to abrogate advanced directives at any point in the trial by claiming that they might have been written at a time when the allegedly incapacitated person was already incapacitated thereby negating them. The judge is perfectly happy to ignore the fact that the documents (DPOA and Healthcare POA) might have been written 10 to 20 years ago when it is highly unlikely that there was even a hint of any incapacity. In extreme cases multiple copies and different versions of advanced directives seem to appear out of nowhere giving the judge the excuse to throw them all out and create a guardianship.
Another trick is for the judge to disqualify the potential guardians mentioned in an advanced directive with assertions that somehow they are inappropriate because they have had undue influence over the ward. Sometimes the nefarious lawyer will even create vicious lies about a family member who was intended to be the family guardians saying that they are alcoholic or drug addicts or wife beaters or other such absurd claims. The trouble is you cannot disprove a negative and once the judge hears a pejorative term with regard to a potential family guardian who might usurp a juicy case and some fat fees from their professional guardian pals, the judge is prone to oblige his buddies by disqualifying anyone they disparage even if the disparagement is made out of whole cloth. The end result is the same in that a buddy of the judge who appears at his courtroom day after day gets another case that will generate enormous amounts of fees for the Guardian and the lawyer the Guardian hires to have the back of the Guardian at the estate’s expense.
Digging deep into their bag of tricks another sneaky move by the court insiders involves declaring a guardianship contested or not. The insiders know that if a guardianship is not declared as contested at the very outset, it will be extremely difficult for those opposing the guardianship to attempt to block it down the road. Judges have been known to disenfranchise interested family members who come late to the game by claiming that they did not in a timely fashion characterized the guardianship as contested. This removes any obstacles to the creation of a fast track toward a permanent guardianship.
But of all the devastating tricks played on unsuspecting victims of guardianship, the most horrific is the instantaneous creation of emergency temporary guardianships. This is the ultimate example of shoot first and ask questions later. All it takes for a judge to get the guardianship freight train started is an unsworn allegation usually by an attorney, although it can be brought by any adult in most states, that someone in the community or in the jurisdiction could be the victim of abuse, neglect or exploitation.
Particularly it seems that when there is a significant estate in question the judge is highly motivated to afford “court protection” to the poor unprotected allegedly incapacitated person by taking away their rights and seizing all their assets even though they might not be incapacitated at all. This so-called temporary situation often lasts for months and almost always leads to the creation of a permanent plenary guardianship from which the only realistic escape is death.
In the next installment of tricks of the trade we will discuss what trickery can happen during the middle of a guardianship proceeding including:
The Court examiner trick
The GAL gambit
Splitting the guardianship
The inventory illusion
Nabbing a vacationer with trumped up jurisdiction
Cold Judges, magistrates and retired Judges
so stay tuned………………….