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Parts 1-6

What will it take ?

After studying the guardianship abuse racket for nearly a decade, I am always amazed to see how difficult it is for people to understand this unwarranted government intrusion into the private life of its citizens.  They still cling to the notion that courts and judges exist to uphold the laws and protect the innocent.  That naïve and ossified belief is belied by the stories so many of us shared on these pages and others. 

At some point we must all realize that abusive guardianship– as well as the abuses so commonly seen in the other equity courts like divorce, family, dependency—all of them are BUSINESSES. The have a product, a very profitable and lucrative product that they manufacture every day. In probate that product is professional for-profit guardianship. The court insiders are not in the business of guardianship prevention or caring for anyone (other than themselves) or even pretending to mete out unbiased justice. They do what they do to make as much money as the compromised and conflicted Judges will let them. The make money for themselves and their downstream confederates and enablers, like doctors, social workers, car salesmen, nursing homes, pharmacies, home health agencies and so many others. Feeding them establishes highly beneficial relationships which translate into greater revenue streams for all concerned. Everyone in the inbred fraternity profits every time a new case is created.

There is absolutely no incentive for the insiders for any of this to change! Without monitoring or supervision and with no chance of negative repercussions for their predation, why on earth would a clever businessman like these insiders want to alter this goose laying countless golden eggs with lots more the be laid? With absolute Judicial immunity what incentive does any judge have to stop creating corrupt guardianships? It is magical thinking to believe that more laws will fix this situation when judges are just as likely to ignore new laws as much as old ones. Guardianship laws are only suggestions to these equity court pirates.

While I am generally supportive of all efforts to create better and more enforceable laws, I do not believe that changing the law is the answer to this problem.  I do not believe that civil lawsuits against court insiders are ever likely to be successful.  As of today, I can see no evidence that law-enforcement has the slightest interest in rocking the boat and pursuing criminal investigations.  I do not think that the Supreme Court in any state wishes to see any of their judges in handcuffs on the front page of the newspaper.  And I certainly do not see any interest in having lawyers arrested from the Bar.  Yet there are too many of us consider who this activity to be out right criminal behavior to write us off as kooks or sore losers. The abuse is real and deadly. And it happens far too often.

There have been calls for unity between and among advocates and advocacy groups which today have been less than successful.

The number of media stories has grown substantially and continues to grow with assistance from the heat generated by the I Care a Lot movie and Britney Spears case.  There are some rare instances in which a guardianship was reversed because of pressure and assistance from advocates.  Judges have begun to allow the presence of advocate observers in their hearings which leads to at least the appearance of greater scrutiny on the judge.

 Some advocates have taken the bold step of naming names of Judges and insiders on social media who have made it to their wall of shame. Some have tried to “work with” state and federal legislators who have failed to make even the slightest impact on the racket.

All these efforts are wonderful and highly laudable, but they have not worked because this effort is going to take an exceptionally long time—it is going to be multigenerational.

To be continued

Part 2

What will it take?

Guardianship abuse is a serious paradox. It causes major mental paralysis and cognitive dissonance to learn that the very institution charged with protecting the vulnerable among us is a prime cause of their exploitation. Only when one has personally experienced such abuse can one understand how devastating this “system” can be.  That cognitive dissonance is further exacerbated by the misinformation flat out lying so routinely utilized by the court insiders as well as the apparent collusion between the incestuous fraternity probate litigators will play both sides of the fence so that they win no matter who else loses.  All this course being condoned by the probate equity judge creates an atmosphere of despair and defeatism or anyone opposed to the guardianship machine.

I was very amused recently to see the following quote on Facebook from The Academy of Florida Elder Law Attorneys who are probate litigators who formally influence judges and the Florida legislature to make sure their livelihoods are intact and grow…at the public’s expense.

 Guardianship: End of AAAPG: We understand that this group is disbanding.”

This was one of the very few things about guardianship that has ever made me chuckle.  It is a patently made-up statement that has no basis in fact, but it does indicate that the groups like ours are on their radar and that we had been nothing less than a thorn in their side, if not much more.  No one from that group has ever spoken to me.  It’s just another lie.

They are good at lying. They do it for a living in Probate courts.

Recently, my colleagues Hilary Hogue and Vito Roppo were invited to participate in a newly formed committee to evaluate guardianships in Pinellas County, Florida organized by Ken Burke the IG of that county. I hope their efforts will be fruitful.

Several politicians appear to have interest in the subject now that we are approaching elections again.

There is progress.

But the obstacles that remain are formidable. Here is a partial list of the impediments that must be addressed before real solutions to the abuse can be implemented.

1. The money. Until the financial incentives for the insiders, especially lawyers, are drastically curtailed there is no reason to expect their behavior will be changed.
2. The power and invincibility of the Judge via complete Judicial immunity. Combined with a system that intentionally precludes any meaningful supervision or monitoring of courts and judges so established judges with long standing patterns of highly abusive behavior will not change their ways.
3. The statutes are vague and subject to judicial manipulation. Famously, the phrase “in the best interests of the ward” is routinely abused in hot spot courts.
4. The power of the Bar. No law ever passes without approval of the Bar, and they will never do anything that negatively impacts the earnings of the members.
5. The tiny number of probate litigators who are able or brave (retaliation from judges) or willing or honest enough to vigorously represent families who object to the guardianship of their loved ones.
6. The huge number of agencies at all levels of government with their hands in the guardianship cookie jar who have been blind to or ignorant of the overt abuses so routinely perpetrated in these juryless courts and whose primary purpose appears to be to stymie dissent rather than to pursue perpetrators.
7. Feckless, poorly trained and often conflicted law enforcement who adamantly refuse to prosecute even the worst criminality so obvious to everyone who bothers to look.
8. Politicians who know all about the problem but give it only lip service and only for votes at election time.
9. The money interests of the downstream providers who make enormous amounts of money from the flow of wards in and out of institutions. This includes all levels of the health provider community.
10. The highly organized, well-funded, politically connected and influential groups like AFELA who exist to suppress any attempts to check their control of the racket versus tiny groups of victim volunteers, unfunded, poorly organized, outnumbered and bereft of significant resources and training. In this story, Goliath wins, and David is crushed nearly every time.
11. Public apathy. Without advocates beating their drums, this opaque system would operate with near complete secrecy and the public would remain naïve and uncaring until it happened to them.
12.  And much, much more.

So, it will take time, money, effort and out of the box thinking to make a dent in this racket.

Here are some ideas.

1. Posting whistleblower rewards for solid evidence of criminal behavior by insiders leading to their arrest and conviction. This would come from former court employees, bank employees, brokers, disgruntled insiders who have been hustled by the court or any number of other folks who have witnessed the shady dealing that make the insiders so wealthy at everyone else’s expense.
2. Creation of state-based task forces to produce focused educational materials for the public to warn of the dangers of probate to prevent guardianships.
3. Joining forces with other groups fighting against other forms of equity court abuse in divorce, family and dependency courts.
4. Producing the data the government seems to need but refuses to collect in order to fund reform measures by disseminating a true national survey of the abused.

What are your ideas?

To be continued

What Will it Take?

Part three

Here is a sampling of the responses to our recent emails.

There needs to be attention to the inoperable Court Monitor program. I am interested in the statistics of how many guardians have actually been reported utilizing this program. Probably fewer than the OPPG program. Mandatory of neglect and abuse are not being reported.

Also, guardians are getting around visitation rights by employing probate judges. When someone like me makes mandatory reporting of elder neglect and facility issues, we are then given a retaliatory restrict contact order.

Public awareness of specific cases and overall statistics must be made routinely available vs the select few. Low-income people have even fewer ways to fight back other than public awareness. If someone is labeled an abuser that title is used against them, and they receive lesser help from even the anti-guardianship community. Some of us like myself are left fighting a system alone even within this community while watching their mother suffer and having her rights ignored. 

Loss of eye, hearing aids taken, blamed for not wanting to wear lower dentures when she does not have a full set, bed bugs, infections, hygiene, laundry and room cleanliness issues. When brought to the attention of organizations and nonprofits now her visitation and right to socialization taken and no to little help from within the guardianship abuse community in the last 4 years. When probate knows we get no outside support they do what they want. I asked Hillary Hogue, Rick Black and others to help. No one even showed up at the last zoom hearing.

Craig Schaffer 

Food for thought…always count on you Sam for thought-provoking materials!  I would like to see it mandatory across all states that lawyers not be allowed to take on elder cases where opposing parties are family.  A true investigation should be performed by non-interested parties as to the elder in question determining whether that individual is safe and to allow said individual to speak for themselves. If Supported Decision Making for folks with disabilities works, then it should also be able to support our elderly population. Perhaps we should meet with them and see if we can create an off-shoot program just for seniors?
 

Carol Wellman, MSW, Founder/CEO @ My Sister’s Place
A 501c3 Non-Profit Serving Indiana
(317) 509-1219

Erma cruthchfield <[email protected]>

All these so-called elder abuse task force need tons of messages sent out from advocates nationwide and thousands of others that all this talk and no action just does not cut it anymore.   If they don’t do something that actually makes a difference in these probate courts, we will be starting a public awareness campaign at every courthouse nationwide with ever judges names and their cronies for all the world to see along with the victims end of life guardians.   Handing out pamphlets to everyone in ear shot.

Jeff Marthon <[email protected]>

As always, Dr. Sam, extremely well said and absolutely accurate. The entire “protective” industry needs to have its power limited.

In Illinois, everyone over 18, I believe, is encouraged to report anyone with white or gray hair who seems odd to anyone.  Recently my next-door neighbor “noticed” my window open 1.5″. She taped a large crayon note to my garage door cautioning me about the danger 🙂

Few days back getting fresh air at 10 AM the concerned neighbor had the police come out because in the mind of that member of the public, she knew that she has to protect me from fresh air. 

Next, we need to watch out for bounties placed on the heads of elders. Joy riders and vigilantes will have open season on elder hunting.

What fun! Great sport.

As President Bush said: “The nine scariest words in the English Language are “I’m from the government and I’m here to help.”

Whistleblower rewards would be good, but I haven’t figured out how one could find protection from retaliation initiated by the individuals who perpetuate these injustices. I need to find a way for my own NH advocacy. 

Btw I responded to a NAELA post by an attorney whose client became the potential ward in an abusive guardianship in NYC. The NH knew she had some money, so the NH petitioned to become her guardian apparently because of her wealth. 

Cousin poa is a geriatric social worker.

I suggested a legal services lawyer AG and that you might be interested in speaking with him.

Thank you very much for your work in this field.

Best,

Jeff

James DeAngelo <[email protected]>

Thank you, Sam, for that information!!!

My mother was kidnapped from the hospital in the most despicable and appalling guardianship scam you can imagine. She was held against her will for 15 months in a dirty sleazy nursing home by the Illegal Order of a low life, sleazy, slimy Corrupt scumbag judge who knowingly, willfully and intentionally, aided and abetted the commission of numerous felony crimes in support of the False Imprisonment of my mother until her death was intentionally caused by the nursing home staff!! 

So, any additional information you have on this despicable crime, would be well appreciated. 

Thank You!!

[email protected]

SAM–A most painful reminder of what needs to happen before the general public will even believe-I’m reminded every day by naysayers who believe that their POA is all they need. Well, we all know better… Having been through the muck and mire of it all, we know that it is the most horrendous of crimes perpetrated on the American people. I have liked the idea of non-partisan involved groups of lay people to review these cases before they even ever set foot in a court room.  Willful miscarriage of justice, judicial criminals taking advantage of the old folks. I remember my dad’s attorney letting the opposing attorney call all the shots, she never recommended anything, just went along with it. Now she runs a cat rescue and has been removed from the bar–not from my case-but by removing a cat from someone she thought was abusing the cat. I questioned how she cared so much for cats but not human beings. I’m with you on this–WHAT WILL IT TAKE?  Perhaps a class action suit?

Carol Wellman, MSW, Founder/CEO @ My Sister’s Place
A 501c3 Non-Profit Serving Indiana
(317) 509-1219

I just went through a Guardianship nightmare with my husband.   A hospital employee removed and concealed the POA that I placed in my husband’s chart.  My husband had Alzheimer’s, had been declared Incapacitated, was deaf, had limited reading and writing capabilities.   Then the hospital called an ‘Attorney’ to his locked ward.  He had my husband sign documents that placed him into Guardianship.  He had no idea what he signed.  I was not notified of the secret hearings until after it had been done.  The hospital admits guilt.  Then they proceeded to take over his Social Security income leaving me with no Spousal support.  The guardian got into my Mortgage company – had the mail changed.  And opened a bank account with my husband. They sent sensitive medical and financial information to some unknown person in Missouri.  Under perjury that the person who received that info was entitled to receive it.  They took my husband away to a home in another city.   At a hearing that I was informed about I was told to be quiet.  And was not allowed to speak at further hearings.  At the care home he suffered a broken hip., was drugged to keep him quiet and also treated for a possible broken pelvis.  They took him out of VA care and placed him with a doctor of their choosing who changed all of his meds and put-on mind-altering drugs also including a drug that is known to cause heart problems.  After the hip surgery they moved him to yet another city.  On November 1, 2020 he developed heart problems.  The EMTs were able to get him to the ER.  But the Guardian was called before me.  She told the ER that in her opinion it would be best to let him die.  And he died.  

The judge awarded all lawyer fees to be paid along with guardian fees. The judge said the work was performed and to be paid. The hospital presented me with a bill of $565,000.  The state wants $26,000.  They said the Social Security money was to pay for his care.  So why do they ask for $26,000 more.  

My husband was admitted for a Bladder infection.  $565,000.   They have now placed a lien on our property.  I am now in financial ruin… on the edge of losing everything.  Day by day.  

My husband and were married for 45 years.  This was the first anniversary we were not together.  He didn’t know what happened to me.  I never saw him again after March 1, 2020.

I appreciate your efforts and taking time to read this.  None of this nightmare would have happened if they simply had honored the POA document executed by a husband and wife to protect against this situation.  

I might add that I believe you are aware of this Guardian and her methods.  You posted an article written about her and a woman down in the Portland area.  Her name is Stacy Bollinger and her company is Halo Guardians based in Longview, Washington.  Ironically, I had to pay for her lawyer as well.

I appreciate your listening.  Take care ❤ 

Lora C <[email protected]>

Thanks, Dr. Sugar.

At this point in time, prevention needs to be considered.  Too much financial information is available for phishing.  That needs to stop.

Here, in Georgia, our homes and mortgages are available to the public on the county websites.  It’s easy to find seniors who own their homes outright. Government employees have access to SSNs which open credit reports and income tax filings.  Seniors with high incomes and little or no debt make good targets.    Looks like once someone enters the court system, they’re doomed. Best to stay out as much as possible.

Maybe pushing for better financial privacy would be an additional approach?

Lora

Vidalia P Amaral <[email protected]>

Sat 6/19/2021 3:30 AM

Hello Dr Sam Sugar. 

I always enjoy reading your perspective and knowledge and well explained details of this “Probate Guardianship hell”.  

After reading this email and realize that it is true, we probably will never see reform to benefit our elderly and protect our wishes.  The truth is Judges should be held accountable and be called out by name for their abuses of power, after all “we” the taxpayers are paying their salary and their well-established financial freedom of a great pension from the State coffers with great benefits and insurance for their families.   We the people need to hold them accountable by name for they are not above the law.

Of course, if we call them by name. we must have the reference and evidence of their lack off and disregard to the truth and respect to our elderly and our wishes.

Indeed.  I have been watching behaviors that are so childish and so selfish and self-serving that they forget the focus and why we all are still talking about the need for reform. 

I refer your well written book to anyone and have given copies to friends and family members.  Of course, your book presents the issues and teach the reader how to protect oneself from falling trap from these “vultures” for they are vultures.

My mom has been dead for 4 years and almost every day I think of her and the abuse she endured.  The Judge had ordered a case management evaluation, court order.  The LSW Geriatric specialty told the Judge that it was necessary for my mother be in a neutral placement. 

The Judge did not follow his own orders nor cared if my mom perished.  He ganged up with the Guardian and she told the Judge, I need to have the trust and he signed it off to her.  There was no mismanagement.  My mother Living will, Power of Attorney all trashed.

The killed mom, slowly. 

Massachusetts is so corrupt and full of cronies.  I was sick watching the lies the deception.   I developed a bleeding ulcer.

We must hold them accountable by name there is no other way because that is how the word of God teaches us.  Accountability is part of life. We are all held accountable to each other, we are humanity.   

Thank you, Dr Sam., here at my night shift taking a little break.  Appreciate everything you do.  God bless you and your family. 

V. Amaral. 

Leonie Rosenstiel <[email protected]>

Hi Sam–

As always, I respect all of the time and effort you have expended trying to improve this terrible situation. My apologies for having said some of the same things before: I continue to believe that nothing is going to change if we set the proverbial fox (the government) to guard the hen house (the courts are simply another part of that same government). In all the years of their existence I believe I’ve only seen the National Guardianship Association censure a single guardian in New Mexico. 

What I have heard from most national regulatory bodies (not just in guardianship) over the years is that they will only act if a case is ultimately sustained against someone at the state level. That will never happen if the proceedings are held in secret. If they’re secret, then the national organization can’t even get the documents so it can act on them. IMHO creating new regulatory agencies and new regulations will continue to be counter-productive unless the guardians must justify their actions in open court. 

Best,

Leonie

Caren ragan <[email protected]>

Mon 6/21/2021 8:42 PM

Thanks for the update as you are right on point. My only addition is that the corruption goes all the way to the top of the DOJ. Our country has lost its

moral path and now the crooks and thieves are running every part of our government. Perhaps, I am too cynical as my battle with the court lasted 12 years and since that time, I haven’t seen anything change. It just gets worse. My solution is much more radical than yours, so I won’t put it in writing, but we are in great need of people of courage. As a Jew so much of what I see today reminds me of the very reason my relatives had to flee Russia and Germany. The signs are there for all to see, unfortunately most people choose to live in Denial and that’s exactly what the corrupt system depends on.

Good luck with your continued battle. I too have continued to battle and belong to an organization called Wethepeopleconvention.org which basically ties together all the dots of how the Elites and Oligarchs are continuing to push their Build, Back, Better plan. You might be interested in reading their agenda as it gives a clear picture of what is going on and what the ultimate goal is by 2030.

Sincerely,

Caren

Miriam Claire <[email protected]>

Mon 6/21/2021 7:07 PM

Part 2 is equally well said. Great analysis and suggestions.

In my view, the only way to truly solve the problem is to remove the financial incentive. Money corrupts. The system works in Australia because those involved don’t profit financially from it, period.

Once you read my book you will understand those differences. I will send you a copy once my situation has resolved legally. Then I will be in a position to offer my assistance as well. 

Best regards and thanks for what you do!

Miriam

What will it Take?

Part Four

Given the passion that is evidenced by the responses we’ve gotten one could imagine that with so many victimized families and so many advocates and so many stories in the media and several popular movies and several well-received books and numerous legislatures across the country proposing drastic changes to a badly broken guardianship system, one would think that the end of the predation is just around the corner and that we would soon see the perpetrators of guardianship abuse being perp walked across our TV screens. 

But it is not.

Guardianship abuse is a huge problem, but it is a relative microcosm, in context, to the larger issue of elder abuse and pervasive elitism and corruption within our society.

Elder abuse is a critical social, health, and economic problem. … Elder abuse also is a critical public health issue. Survivors report higher rates of depression. They often withdraw from social interactions, and many blame themselves, which results in shame and silence and magnifies these effects.

Older people who have been abused have a 300% higher risk of death when compared to those who have not been mistreated, as well as higher rates of hospitalization. It is estimated that elder abuse injuries are linked with an additional $5.3 billion to the nation’s annual health expenses.

With rampant levels of non-court generated elder abuse becoming the norm, it should not be surprising that when judicial malfeasance or corruption is added to this witch’s brew the results are incredibly awful.

As Floridian and Hall of Fame Football coach Lou Holtz has noted recently in the Miami Herald, “Guardianship abuse may more correctly be thought of as guardian, medical and legal abuse, because without unethical, predatory individuals in all of those fields working together, such abuse is impossible carry out. It takes more than a corrupt guardian to do these terrible things — it takes a corrupt guardian, a corrupt lawyer, a corrupt doctor, often a corrupt nursing home or hospital and, finally, corrupt judges.”

Given the epic damage they do, why have not the predators been challenged by

• Clergy—isn’t what they are doing a sin?
• Law enforcement—isn’t what they are doing a violation of statutes?
• ACLU– isn’t what they are doing a violation of civil rights?
• AARP– isn’t what they are doing hurting seniors?
• DOJ– isn’t what they are doing violating the constitution?
• Licensing Boards for health providers– isn’t what they are doing dangerous and deadly?
• Bar– isn’t what they are doing a violation of Bar ethics?
• Supreme Court– isn’t what they are doing against the code of ethics for judges? Aren’t they responsible for every guardianship they create?
•  

Perhaps the reason the predators get away with everything is that we citizens need and want to trust our elected officials—or better –that we the public cannot fathom how much preposterous evil and harm is being done in the name of justice in this country. Until it is experienced personally, it cannot even be comprehended.  Perhaps it is also because of the abject failure of clerks of courts to adequately examine guardian reports (or lack thereof as recently demonstrated in orange County Florida) with a fine-tooth comb to at least let the judges know when there are obvious cases of dereliction of duty of a guardian.

One facet of how broken this system is stands out.

Judge’s failures to monitor cases.

Implicit in every state’s statute about guardianship is the foundational concept that judges are required to monitor the guardianships he or she creates.  Society assumes that when a judge creates a ward, he or she accepts the responsibility of what happens to that Ward.  In nearly every state nothing is further from the truth.  In fact, every non judge mechanism in place to monitor guardianships lacks either the law enforcement capacity or responsibility for the actions that take place within a guardianship case.  All of their reporting and investigating and paper pushing might result in nothing more than a slap on the wrist or a decertification.  But even a guardian decertification does not release a ward from the abuse of a guardianship.  Instead, the completely ossified and lethargic court leaps into action and appoints a backup guardian who may be even worse than the first one.  And even then, the judge who is ultimately responsible for the welfare of the ward does nothing further!

Ken Ditkowsky reminds us about judges and court monitors:

The Judge assigned to the Probate guardianship case has an absolute obligation to not only monitor his/her appointed guardians and other personnel but to recognize:

1) that guardian is a fiduciary

2) that a fiduciary owes the highest standard of conduct and integrity to his/her ward.

3) a fiduciary is authorized ONLY to do those acts which will OBJECTIVELY BE Necessary for the ward’s benefit – and is to be compensated to the objective extent of the BENEFIT.     The assignment is NOT open ended or capricious.

The monitoring program in too many cases appears to be a ‘cop out’ for the Judges and a recognition that the RULE OF LAW is all too often not part of the lexicon of our Judicial system.    The Guardian in his/her reports to the Court is required to in detail report his activities – such if carried out would be self-reporting.    Unfortunately, the FLORIDA BAR, the IARDC and other Lawyer disciplinary commissions (and the Supreme Courts of the States) hide behind ABA Rule 104 to protect the Breach of Fiduciary relationship, tax fraud, elder fraud, and the felonies of HUMAN TRAFFICKING IN THE ELDERLY/ELDER CLEANSING.

While there are national organizations apparently attempting to do something about the general issue of elder abuse, like the Elder Justice Coalition, composed of a consortium of organizations that have the resources and funding to make a difference, they do not even mention guardianship abuse in their definition of elder abuse.  Here’s a recent press release from them.

News from the Elder Justice Coalition   EJC Lauds Passage of the Elder Abuse Protection Act of 2021

The national Elder Justice Coalition today praised the passage by the House of Representatives of H.R. 2922, the Elder Abuse Protection Act of 2021, co-sponsored by Reps. Sylvia Garcia (D-TX) and Victoria Spartz (R-IN).   “It is especially meaningful that this bill passes just one week after the annual observance of World Elder Abuse Awareness Day, which was commemorated by President Biden with a Presidential proclamation,” noted EJC National Coordinator Bob Blancato.   The Elder Abuse Protection Act would require the Department of Justice to establish a permanent Elder Justice Initiative to coordinate the agency’s efforts to combat elder abuse, fraud and neglect. It would also designate an elder justice coordinator to support the initiative’s law enforcement efforts and policy activities and would establish a national elder fraud telephone hotline. Finally, the bill would provide yearly recommendations to the Office of Tribal Justice and have all public resources that are produced be written in both English and Spanish.   “We need to do more to address elder abuse and recognize that those who perpetrate it are criminals. It is also just as important to aggressively prevent elder abuse and future victimization. This bipartisan measure does both—and it is good to see that the issue of elder justice continues to be bipartisan. We urge the Senate to move quickly to pass this bill,” said Blancato.

I have tried for years to contact Mr. Blancato with no success.

After all Is said and done the core issues are very clear:

1.The American state probate court guardianship “system” is badly broken, corrupt and prone—intentionally or not– to abuse at every step of its processes and has in many states become a racketeering operation

2. The safety nets in place to monitor and supervise the process are wholly inadequate and ineffectual

3. While intended to help the vulnerable, the system often results in severe abuse and exploitation of all kinds including violations of basic civil rights

4. Very few people are aware or care about of any of this until it happens to someone close to them

5. Exceptionally strong forces in America are resistant to reform and are committed to maintaining the status quo

6. Officials and agencies at all levels of government do not consider ward abuse a crime.

What Will it Take?

Part Five

The outrage and sympathy that has been pouring out for Britney Spears is not surprising.  Her recent statement to the judge was poignant and moving.  Her desire to regain her reproductive rights, her civil freedom, her money and her freedom from inappropriately administered psychotropic medications was a powerful indictment of her conservator father and her conservatorship.  Her appearance has moved many celebrities to declare their support for the end of her conservatorship and for the end of the abuses in conservatorship/guardianship in general.  None of this would have come to pass without the staunch advocacy of the #Free Britney movement recently augmented by well-known leaders in the advocacy community.

Time will tell what the outcome of her appearance before the judge will produce.  While there is great hope that the conservatorship will be terminated, there is no guarantee that that will happen because the judge, irrespective of public opinion or support or any testimony or evidence, has the only opinion that matters.  That judge has an array of options available to her and will decide the case not on the basis of the law (judges are supposed to be deciders of law and juries the deciders o fact) but in equity probate where there are no juries, she will decide the matter on her subjective and personally biased conclusions on what she believes is best for the ward.

Therein lies the problem.

Irrespective of this particular judge’s final decision, it is the peculiar probate process—with no check or balances– which is so predictably unpredictable. It is always a crapshoot. The factors that go into a probate judicial ruling are too numerous to count as are the individual biases of any given judge.  We will never know what or who influences the judges’ decisions.  No one will be able to question judge whose authority and influence is absolute.  And no matter what the outcome of this particular decision, at this juncture of the 13-year conservatorship which has cost Britney Spears untold millions of dollars, there will never be financial restitution and she will never be able to get back those 13 years of the absolute prime of her life.

It took a very brave move by Britney Spears to go public with the abuses she has endured.  It is very unusual for her to have even gotten that opportunity because other less famous wards never do.  The activism of her fans played a great part in giving her the opportunity to leverage her stardom into a chance for freedom.  Without that support it is probable that her voice would have been further suppressed and her abuse and exploitation would continue unabated– just like every one of the other over 1 ½ million wards (more likely a much higher number but no one knows for sure because records are suppressed) across the United States.

Perhaps the real lesson here is that getting out of conservatorship is damn near impossible.  While it is extremely fast and simple to initiate a conservatorship with an unsworn allegation of some degree of incapacity, it is excruciatingly difficult to modify, let alone end one.  For the typical ward, who does not have an army of advocates to work for their release, guardianship/conservatorship is a life sentence and often that life is one of exploitation, abuse, neglect, poverty, overmedication and malnutrition.

There is also plenty of blame to go around to all people who have profited from the Spears case and so many others. Where have the clergy been when Spears (and every other abused ward) needed uplifting? Where were their prayers and comforting words? Where were her doctors if they knew she was being drugged? And what the hell was her lawyer doing allowing his high paying client to be so abused? It would appear that Spears was abandoned by so many of the people who now show such indignation at her circumstances and by officials in the government, healthcare, the church, politicians and the courts– just like so many other helpless wards around the country.

So, in many ways the Spears case is unique but in so many others it’s just another abusive guardianship/conservatorship.  Let’s all hope this one ends better than the usual outcome which is death by court assisted slow murder.

What Will it Take?

Part Six

An excerpt from a recent email:

I’ve been reading some things on your web site, and it’s my conclusion that if we can’t persuade Our Fearless Leaders to actually make guardianship reform a top priority, and the state courts are equally unwilling, the logical step is to file a federal lawsuit against each particular state to force them to enforce the current laws on the books; terminating any guardianship that was imposed improperly, no matter how old it is; and forcing the states and counties to reimburse each ward or protected person all the money that was taken from them, whether it be in the form of SSDI payments, pensions or retirement benefits, insurance policies or assets sold without the consent of the ward or protected person.

Surely, you must know of one or more firms who would be able to do this pro bono, or at least on a minimal contingency fee, as I presume most states wouldn’t want to risk a drawn out court battle where their risk of losing is increased and bad publicity just makes things worse for them.

Please let me know what you can do to make this happen, since this is a nationwide problem.

Let us examine some of the many impediments to such an approach:

• Discrepancies in the law from state to state

Absent the adoption of the uniform law commission’s recommendation for a nationwide guardianship law (only the states of Maine and Washington have adopted), each state has its own unique set of guardianship statutes and rules.  A class-action or RICO lawsuit might work in one state but not another.  It would be an enormous legal undertaking to bring suit against more than a few states.

• Sovereign immunity recovery limitations

Each state has different complex sovereign immunity laws. Florida Statute 768.28 Title XLV allows individuals to bring a tort claim against the state government when the state’s employees’ actions (presumably for certain including judges) resulted in property loss, personal injuries, or wrongful deaths. However, there are three major limitations to this waiver (and multiple minor limitations).

The amount of damages that can be recovered in a case against the state is limited to $200,000 against one government agency or $300,000 against multiple government agencies. If a plaintiff believes that they are owed more than that amount, there is a complicated legal process by which they can file a petition with the Florida legislature and request more damages which almost never is successful.

The tort losses from any one case may well far exceed $300,000 and legal fees to prosecute such a class action would be in the millions. It just makes no economic sense to sue the state even if some lawyer were willing to do it.

• Law Firms profit motives vs contingency.

Though some class action suits are taken on contingency, the calculus employed by the law firm in making a decision is heavily weighted in favor of taking only those cases that have a high likelihood of a successful outcome.  No law firm wants to take cases they think will lose on contingency because they would be on the hook for expenses and that is simply not an intelligent business decision for them.

• Certification as a Class

even if a class-action were brought, in order to proceed past the first seven barriers the plaintiffs (there have to be at least three) must be certified as a class.  Imagine the position of the civil or criminal judge hearing such a case and the pressure that would be on him or her to refuse certification of even the most professionally researched case against his fellow judges.

• Probate exclusion

In order to bring the federal government into any action against the probate system one would have to overcome several gigantic obstacles not the least of which is the probate exclusion which prevents the federal government from becoming involved in any way with matters of inheritance within any given state.

• RICO issues

while it may be apparent to some of us that crimes are being committed in probate courts across the country and while it is theoretically possible for an individual to file a civil RICO complaint, criminal RICO can only be initiated by a branch of government.  Without the full cooperation of all levels of law enforcement to investigate the facts of the RICO claim, it is essentially impossible to even contemplate a criminal RICO claim against anyone including state actors like judges or court appointed guardians.

Absent a law firm who would be willing to take a contingency arrangement, the upfront costs of discovery and legal prep would be prohibitive.  On a practical level, imagine the forces arrayed against the plaintiff in such a class-action or RICO. One can imagine every judge in the state circling the wagons and privately vowing never to let such a lawsuit succeed while at the same time the Bar Association in every state would not only declare war on that lawsuit but on any employer who dared bring such a lawsuit.

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