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White Paper–It’s the Judges and here is why

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Why Don’t Guardianship Abuse Complaints Ever Result In Meaningful Reform?

The bureaucratic response to decades of complaints about the physical and financial abuse generated from guardianships is worth studying if for no other reason than to focus our attention on the federal money and tactics that have yet bring about significant reform.

The most fundamental function of government is the protection of its citizens and their rights and the property they own, the foundational differences between us and third world countries. Without these protections, the USA is not much different from Communist or Socialist rule. Reigning in government sanctioned abuse of the most vulnerable in our country should be at the top of the “to do” list for every legislator and agency head.  Even though Guardianship as one major cause of elder abuse, has been on the federal radar for decades, inexplicably the Federales have not acted.

The ruling elite in Washington from top to bottom are aware of the severity of the problem across the country. When presented with such a problem, a bureaucracy like the federal government receives complaints from citizens that are then gathered and bundled and passed up or down the chain of command depending on the urgency of the complaints, the sensitivity of federal employees and staff to the issue, the political expediencies of the time and the available money that can be appropriated to address the complaints resolution.

For example, when multiple consumer complaints to the Department of Transportation revealed that Japanese made Takata automobile airbags were defective and injuring and killing drivers in the United States, federal government leapt into action and declared a crisis, gathered the relevant testimony and data, and initiated a recall program for millions of defective airbags.

Guardianship complaints far outnumber airbag complaints, kill far more people but until now have not resulted in any similar governmental action. Why?

Maybe because the real number of victims of guardianship are not tallied anywhere and as such are far less poignant than just a few dead drivers.

When it comes to elder abuse the government in Washington has created a very impressive sounding array of resources designed to give the appearance of concern.

After 3-5 years in action the super elite Elder Justice Coordinating  Council of the US Department of HHS, a blue ribbon group of the heads of every major cabinet post reported to the HHS.

Title XX of the Social Security Act, Subtitle B, the Elder Justice Act of 2009, establishes the Elder Justice Coordinating Council (Council) within the Office of the Secretary of the Department of Health and Human Services (DHHS). The purpose of the Council is to make recommendations to the Secretary of DHHS on the coordination of elder justice activities within DHHS, the Department of Justice (DoJ), and other federal, state, and local entities. The Council was initially convened by DHHS Secretary Sebelius on October 11, 2012, and is comprised of 12 federal agencies. The Council is required to submit a report to Congress every two (2) years describing the accomplishments and activities of the Council and making recommendations for Congressional action as the Council deems appropriate. As the statutorily-named Chair of the Council, the Secretary of DHHS has prepared this report to satisfy the requirement. This report contains the following:

In short, elder abuse is a comprehensive issue that could widely benefit from national statistics on a core set of data from all jurisdictions in the nation on an annual basis. The route to achieve this goal chosen by those responsible for meeting the needs of our vulnerable elders will be shaped by the history, interests, leadership, commitment of many individuals and agencies, and resources of the field. However, it is hoped that lessons from other fields, such as child abuse and neglect, may be helpful in making timely progress towards achieving national data on this most important issue.

http://www.aoa.acl.gov/AoA_Programs/Elder_Rights/EJCC/docs/EJCC-2012-2014-report-to-congress.pdf

The highest ranking officials in the country after years of study suggest that more study is needed!!!

This report, over and above revealing government inertia, is proof that actionable data about Elder Abuse is simply not available to the Council or anyone else. It does not exist and for the special egregious variety of Elder abuse called Guardianship Abuse, the data are not only unavailable but are actually suppressed. Aggregate data on Guardianship, for example in Florida, is collected and collated by the Department of Elder Affairs, but has never seen the light of day and will never see it by Law.  Thus meaning ful study of the problem is possible only through anecdotal evidence from victims. Why?

Here is another example of how the government deals with ward abuse

The U.S. Government Accountability Office released a report dated July 2011, entitled Incapacitated Adults: Oversight of Federal Fiduciaries and Court-Appointed Guardians Needs Improvement. The report assesses the screening, monitoring and information sharing procedures of the Social Security Administration, Veterans Affairs and state courts concerning fiduciaries and guardians; and also examines federal support for court oversight of guardians. The GAO recommends that:  (1) the U.S. Department of Health and Human Services should consider funding evaluations of practices for monitoring guardians; and (2) SSA should determine how it can, under current law, disclose certain information about beneficiaries and fiduciaries to state courts upon request.

After years of complaints from victims and families, hearings, testimony and study, consider funding?? Why?

Why have legitimate complaints to lawmakers at every level gone unheeded? Are they not the ones tasked with heeding citizen concerns and writing laws to prevent improper activity against the citizenry?

ANSWER: It’s the Judges.

Results of the AAAPG Guardianship Abuse Survey of 2015 showed the responses of the respondents as follows as it applies to the issue of Judges in guardianship:

  • 96% said that advance directives were not followed by Judges
  • 94% said that there was inadequate judicial oversight of guardianship
  • 95% said that there was inadequate monitoring of legal and Guardian fees by Judges
  • 75% said there was staged litigation allowed by the Judges
  • 80% said important judicial hearings were not held in a timely fashion
  • 60% said the judges were solely responsible for abuses in guardianship

It didn’t take millions of dollars of federal grant money or five years of hearings to clarify that it is the judges in probate and other courts who are uniquely in directly responsible for the abuses they tolerate in guardianship cases. In fact, there is real concern that the judicial ruling class all the way from the Supreme Court down to local magistrates has created an invincible death grip on the lives of the most vulnerable in our society. Anyone who has even casually studied the problem must conclude that there is a problem in our courts. Why doesn’t anybody do anything about it? Why don’t legislators pass better laws to reform the judiciary? Why don’t the judges police themselves and encourage reform?

Dr. Richard Cordero has some thought on why Judges in general and probate judges in particular so ruthlessly do not support reform but rather how they PREVENT real reform.

We are by no means the first complainants to legislators about probate and overall judicial wrongdoing. Were it in a legislators’ interest to be seen solving the judicial wrongdoing problem affecting the complainants and similarly situated people, the senators and representatives would have taken action long ago and would not have allowed the wrongdoing to become so pervasive as to become the judges’ and their courts’ institutionalized modus operandi. Legislators allowed wrongdoing so to spread because it was not in their survival interest to take on judges.

Why would legislators risk their careers merely because yet another group of common naïve complainants are whining before them with their arms stretched out to beg for alms of legislative assistance?

 What interests could possibly drive these senators to appear to be taking on judges? Indeed, even if as a matter of fact the senators take on only the judges of the family court, they are in practice taking on all state judges and even federal ones, for judges form a class that protect its own fiercely.

All judges are aware that if they allow any court to be investigated for wrongdoing, they also allow the weakening of the other two branches’ fear to interfere with the judiciary’s independence and judges’ ability to abuse their self-disciplining authority to engage in wrongdoing while exonerating themselves of any consequences. That fear has very real sources:

 Judges can retaliate against legislators and the head of the executive by declaring unconstitutional any and a whole series of pieces of their legislation, thereby reducing to naught their legislative agenda

A judge under investigation as well as the judges whose court is the subject of a bill to curtail its powers can appeal to the political party that endorsed and included them on their electoral list to intervene to tell the legislators to stop investigating the judge or sponsoring that bill under pain of having the party withdraw its support of them and endorse for the same legislative slot other candidates who understand where the interests of the party lie and their quid pro quod duty to protect and foster them.

Worse yet, judges can uphold even trumped up charges of violation of the election law brought by a cunning and unprincipled challenger of a senator who has taken judges on. A judge who has before his bench a senator who has made herself the nemesis of judges would not pass up the opportunity to send in a veiled form a starkly clear message: “Don’t you ever mess with us!”

Why would a senator imperil her chance of reelection just to help you when she knows that the other senators are most unlikely to put themselves in the crosshairs of the judges by supporting any bill that provides for investigating them for wrongdoing and subjecting them to the supervision of either legislators, the executive, or a truly independent body of non-judges, such as citizen boards of judicial accountability?

It all boils down to a question of incentives. Elected officials cannot afford to anger judges who can orchestrate their electoral defeat in so many ways and so easily. Judges have a very good thing going; once elected their position is basically tenured. The only redress against the judge who has rendered an inappropriate decision or has acted unprofessionally in his own court is to appeal his decision, and judges know that this is an expensive and time-consuming proposition that most citizens simply cannot accomplish. Judges know that legislatively mandated oversight agencies such as the Judicial Qualifications Committee which goes under different names in different states, rejects 99.8% of all complaints against judges out of hand. They also know that any lawyer who crosses them will forever be an enemy undeserving of their consideration. Judges even go so far as to threaten retaliation against journalists and media for even attempting to discredit them or their cronies by threatening lawsuits, counterclaims, and at times overt violence against anyone so brash as to challenge their authority. As such they exert enormous control over media outlets where freedom of speech might otherwise be used to sully their pristine reputations and cast doubt on their infallibility and impartiality. This simply cannot be tolerated.

So it just may be that the reason that citizen complaints to legislators about guardianship abuse are routinely ignored, discarded and denied is that attacking or even criticizing the legal/judicial/ruling class/old boy network system is political suicide. It may just be that the hundreds of millions of dollars spent on fruitless and pointless hearings over the last three decades in state legislatures across the country and in particular in the United States Senate to hold hearings and appoint committees and take reports  and to endlessly study the issue without ever acting is all patronizing lip service designed to give the appearance of concern and action, but in truth intended to simply make the complainants go away for a while.

As has been said over and over again guardianship is about money and only about money. Only judges can spawn guardianships. Because it is so easy to capture their prey in guardianship and to milk them for everything they’re worth and because there is no oversight or monitoring or discipline any kind over guardianship judges, reforming the current system may not be possible– especially since so many stakeholders have their fingers in the guardianship pie and enrich themselves enormously from the fresh meat of every new guardianship.

Citizens can only report wrongdoing to elected or civil servant government officials. Citizens do have the opportunity to present their concerns and complaints to lawmakers. However, whether in groups or as individuals, citizens have absolutely no access to the judiciary which maintains its independence from all other branches of government. Judges are not required to respond to any communications, complaints, or concerns from lowly mere citizens. Missives addressed to these judges are routinely shunted to clerical staff for form letter responses.

This dismissal by Judges of citizens complaints about guardianship abuse extends to the US Supreme Court where one AAAPG member wrote her high-school classmate, US Supreme Court Justice Elena Kagan, only to receive back all of the well-documented paperwork of judicial and legal abuses in guardianship, along with a pamphlet discussing the Rules of the Supreme Court, and an admonishing letter from Justice Kagan’s clerk that the AAAPG member should read up on how to bring a case to the Supreme Court, because any communication with a Supreme Court justice pointing out rank corruption in a lower court was not allowed.  The only way a Supreme Court justice could learn of this vile corruption of the lower courts would be IF the case made it’s way through the appeals process. You can read the response from Elena Kagan’s office when informed of lower court corruption in guardianship process at this link.

The AAAPG member was quoted, upon receiving the response from Justice Kagan’s clerk,

I feel as if I have been legally raped – all over again.  It’s like when a woman is physically raped by a police officer, and she is told the only means by which she can achieve justice for the wrong-doing she has suffered at the hands of someone entrusted to protect her – not rape her – is to go down to the station house and report the rape to the colleagues of the very man who just finished raping her.  There’s zero chance of justice in that situation, just as there is zero chance of justice in trying to report Ward Abuse by lower court judges to the Supreme Court.

It seems obvious to me now that every judge of any position anywhere in America knows that the system is completely rigged against the very people coming to them for help — and they don’t care, because it’s money & power over us that these attorneys-on-steroids (judges) crave.  And every single judge, from the lowest municipal or county judge, straight up to my former high school classmate Supreme Court Justice Elena Kagan, appear to be in on the fix.

Judges are the ultimate elite: deified untouchables, entrusted with vast powers, under the assumption they will be honest and fair. That implied promise has not been fulfilled.

The only rational conclusion that one can draw from this assemblage of realities is that guardianship reform will not occur anytime soon. In fact, guardianship reform is probably the wrong goal for victims of guardianship abuse. Instead, rather than nibbling around the edges of the behemoth we must refocus our attentions on eliminating the entire guardianship apparatus in this country and replacing it with a system of assisted  decision-making that cuts out carpetbagger lawyers, predatory, sadistic guardians and imperious judges who have for so long taken egregious advantage of their positions to the extreme detriment of our society.

Related Links:

http://www.aoa.acl.gov/AoA_Programs/Elder_Rights/EJCC/docs/EJCC_Member_List.pdf

http://www.aoa.acl.gov/AoA_Programs/Elder_Rights/EJCC/docs/EJCC-2012-2014-report-to-congress.pdf

http://www.aoa.acl.gov/AoA_Programs/Elder_Rights/EJCC/index.aspx

http://www.americanbar.org/content/dam/aba/administrative/law_aging/2013_CassidyRestorationofRightsChart7-13.authcheckdam.pdf

http://www.americanbar.org/content/dam/aba/administrative/law_aging/elder_abuse_eja_act_art_prtl.authcheckdam.pdf

http://www.americanbar.org/groups/law_aging/resources/elder_abuse.html

http://www.americanbar.org/groups/law_aging/resources/guardianship_law_practice.html#statelawsandpolicy

http://www.americanbar.org/groups/law_aging/resources/guardianship_law_practice.html

http://www.americanbar.org/publications/bifocal/vol_36/issue_6_august2015/health-care-decision-making-authority-guardians-agents.html

http://www.americanbar.org/content/dam/aba/administrative/law_aging/Who_Makes_the_Decision.authcheckdam.pdf

http://www.americanbar.org/content/dam/aba/administrative/law_aging/What_is_the_Decision_Making_Standard.authcheckdam.pdf

http://www.justice.gov/elderjustice/research/resources/Building_Consensus_On_Research_Priorities_In_Elder_Mistreatment.pdf

http://www.aoa.acl.gov/AoA_Programs/Elder_Rights/EJCC/docs/EJCC-2012-2014-report-to-congress.pdf

Development and Trends in the Status of Public Guardianship: Highlights of the 2007 National Public Guardianship Study by Winsor C. Schmidt, Pamela B. Teaster, Erica Wood, Susan Lawrence and Marta S. Mendiondo. 33 Mental & Physical Disability L. Rep. 5 (Sept.- Oct. 2009).

Guardian Accountability Then and Now: Tracing Tenants for an Active Court Role by Sally Bach Hurme and Erica Wood. 31 Stetson L. Rev. 3 (Spring 2002).

Right to Counsel in Guardianship Proceedings: Where Do We Stand? by Elizabeth R. Calhoun. 19 BIFOCAL 3 (Fall 1998) pp. 1, 2, 8, 10-12.

Competency: Refining Our Legal Fictions by Charles P. Sabatino. Older Adults’ Decision-Making and the Law (Springer Series on Ethics, Law, and Aging) (1996) pp. 1-28.

Legal Planning for Incapacity by Nancy Coleman. The Retirement Handbook (1994) pp. 233-244.

Public Guardianship: Where Is It and What Does It Need? by Dorothy Siemon, Sally Balch Hurme, and Charles P. Sabatino. Clearinghouse Rev. (1993) pp. 588-599.

Three Issues Still Remaining in Guardianship Reform by Lori A. Stiegel, DaCosta Mason, and Vicki Gottlich. Clearinghouse Rev. (Oct. 1993) pp. 577-584.

Guardianship Monitoring: An Advocate’s Role by Susan Miler and Sally Balch Hurme. 25 Clearinghouse Rev. 6 (Oct. 1991) pp. 654-661.

Alternatives to Guardianship by Penelope A. Hommel and Erica F. Wood. Aging Magazine, 1990.

Making the Guardianship System Work by and Jeanne Dooley. Generations (1990 supp.), pp. 47-50.

Proposed Solutions to Social Security Representative Payee Problems by Lori A. Stiegel. 24 Clearinghouse Rev. 6 (Oct. 1990) pp. 570-571.

Statewide Review of Guardianships: The California and Maryland Approaches by Vicki Gottlich and Erica Wood. 23 Clearinghouse Rev. 4 (Summer 1989) pp. 426-432.

Planning for Incapacity: Two Perspectives on Safeguards by Nancy Coleman. Health and Social Work (Winter 1988) pp. 71-74