Undue Influence in Guardianship
SIMILARITIES BETWEEN GUARDIANSHIP ABUSE PLAYBOOK AND THE UNDUE INFLUENCE PARADIGM
As victims of court-based guardianship abuse can attest, the universal playbook used by court insiders to abuse and exploit families whose loved ones may have been vulnerable or even just in need of some sort of assistance follows a certain pattern. The case reports that come to our attention in these cases are nearly almost always identical. They follow a certain pattern that always leads to financial exploitation for the sole benefit of the court insiders and at the expense of everyone else.
Interestingly, that pattern is modeled after a well-accepted paradigm for lawyers asserting one of the most damning allegations used by the court insiders against anyone who stands up against them.
The chart below represents the factors alleged against family members when they are accused of undue influence. This chart was prepared for lawyers by lawyers as an explanation of how to use undue influence allegations to create the illusion that a family member, usually the one most heavily involved with the potential ward and sacrificing their own time, money and effort for the ward’s benefit is allegedly doing so for their own personal gain and supposedly using the tool of undue influence to commit financial exploitation. This allegation although never actually proven in equity courts, is a powerful cudgel to eliminate resistance to the guardianship and generate substantial legal fees in the process.
Create fear: the anxiety created in naïve litigants attempting to seek justice in equity probate courts is monumental. More than just the issue at hand, entering into litigation in these courts carries with it the risk of financial ruin. The inability to express one’s own opinions and evidence while depending on an attorney whose motivations and actions almost never result in positive outcomes can be overwhelming and very destructive.
Prey on vulnerabilities: a family caregiver involved in probate litigation is extremely vulnerable to misinterpretation of their actions and intentions. They are also in an extremely vulnerable position for having to pay their own legal fees which become untenable very quickly. Actions that would normally be considered appropriate and considerate can be twisted by a clever lawyer into acts of undue influence. For example, buying groceries for award so that they can have dinner with a family member would be considered a very normal act. But in probate litigation hearings, crafty lawyers will say that the food was purchased only for the benefit of the caregiver because they had undue influence over the ward.
Create dependency: once accused of undue influence the family member litigant loses all autonomy and the court and is absolutely dependent on the skill and volition of the lawyer they are paying. It is no secret that lawyers do their work in order to make money. Sadly, the vigor with which some attorneys go after family members is rarely matched by the energy expended by lawyers defending that family member, though both get paid one way or the other.
Create lack of faith in their abilities: being excoriated in court for doing what you consider to be a noble and selfless job of taking care of loved one has a chilling effect and can lead to severely harsh self-criticism and self-doubt.
Induce shame and secrecy: probate lawyers have an entire lexicon used to shame their opponents. Terms like evil doer, thief, murderer, drug abuser, alcoholic, deranged, insane, attacker and many others are used routinely against family members who stand in the way of a guardianship and are sometimes the most painful slings and arrows from which to recover. Furthermore, nondisclosure and non-disparagement agreements guarantee that the pain of guardianship proceedings remain buried, secret and un-expungable from a victim’s psyche.
Occasionally act kind: victims are all too familiar with the attorney who pulls them aside to give them friendly advice for free or who will reduce his fees by a certain percentage as an act of kindness when they were outrageously high to begin with, but inescapable.
Keep unaware: this is the essence of the crafty lawyers’ bag of tricks. Poor communication is often intentional to hide the fact that no work is being done on behalf of the client that’s being billed. Another shifty tactic is the ex parte meetings that take place without a client’s knowledge despite the fact that they’re paying for those meetings. Victims and families are always playing catch-up because lawyers do not communicate in a timely fashion.
Isolate from others and information: probate lawyers are famous for telling their clients to keep their mouth shut and not discuss their cases with anyone because they say, this will upset the judge. Family members are sternly warned to avoid the media for the same reason. This results in family member suffering alone and in silence. Furthermore, judges make records almost impossible to get and in the vast majority of cases sequester court hearing reports. There is a stunning disconnect with the number of billable hours and paperwork generated in these cases and the timely dissemination of those documents and events and bills that all work in favor of the attorneys and to the detriment of family litigants.
And the circle returns to Create fear: the fear created in probate litigation is monstrous. Combine the fear of losing a loved one or not being able to see them again, the threat of financial ruin, the potential threat of fines, incarceration, endless litigation, public shame, family destruction, loss of inheritance, loss of a home, and loss of hope of ever regaining what’s already been lost and anyone can see that creating fear in probate proceedings is a massive cudgel that can bring down even the strongest of us.
Understanding this cycle of intimidation, unbridled legal aggression, unchallenged lies, outlandish abuse of power with no accountability or supervision is to recognize the asymmetrical warfare waged in probate courts around the country. The outcome is rigged from the start and the battle is like boy scouts with slingshots versus Atilla the Hun.