Reform of Unlawful and Abusive
Guardianships and Conservatorships and Abuse by
Courts and Fiduciaries
Guardianship, a form of civil commitment, can be dangerous to the health and wealth of all Americans! It has grown in epidemic proportion, and threatens the vulnerable elderly, disabled – and even the veterans of the current war on terror.
Guardianship, a form of civil commitment, can be dangerous to the health and wealth of all Americans! It has grown in epidemic proportion, and threatens the vulnerable elderly, disabled – and even the veterans of the current war on terror.
Historically,
protective proceedings were described as “lunatic”
proceedings. Today, “guardianizing” an innocent vulnerable
person for nefarious purposes is becoming increasingly
easier due to the generally vague and incomplete language of
the law.
“Incapacitated” now
replaces “incompetent” in a number of state statutes,
thereby exposing even persons with minor or temporary
physical disabilities to a complete and potentially
permanent loss of life, liberty and property, most often to
the day they die.
Many proceedings
involve rights violations and lack of due process at the
inception. Once "guardianized," a "ward of the state" does
not even have the right to complain! These "wards" are
treated as chattel.
When the family
fights to protect their loved ones, they are maligned and
treated as interlopers. They feel betrayed by government,
after being forced into useless litigation which can run
through generations (like Dickens' "Bleak House"). Many
families are bankrupted and left drained emotionally and
physically, possibly never to recover.
Although the states
have "protective" statutes in place, which require "least
restrictive alternative" and "family first," those basic
elements are not adhered to in most cases; the courts will
often appoint professional fiduciaries instead. These
third-party strangers then engage in exorbitant overbilling
and easily bleed the estates for their own self-enrichment.
Their fee applications are rubberstamped by uncaring,
overworked or corrupt judges. Advance directives, wills and
trusts can be ignored or overturned without concern for
rules of procedure or evidence.
In the present
economy, criminal activity by fiduciaries is increasing. A
few states have begun to enhance criminal penalties for
guardians and other fiduciaries.
Guardianship abuse is clearly elder abuse and exploitation and must be recognized as such.
Guardianship abuse is clearly elder abuse and exploitation and must be recognized as such.
While the original
purpose of guardianship was to "protect" and "conserve,"
those elements appear to have been forgotten. Despite the
growing trend and availability of community services,
court-appointed fiduciaries will quickly remove wards from
their homes for purposes of sale (sometimes to insiders at
low prices), and dispose of their wards’ personal property
(often destroying irreplaceable photographs and family
heirlooms in the process). Wards are forced into nursing
facilities for the rest of their lives, against their will,
despite family objections. When families complain, corrupt
guardians often restrict or stop visitation altogether,
effectively isolating their wards, causing them to feel
abandoned or unloved by their family. Brainwashing
techniques can be employed at this juncture. Judges most
often allow the cruel isolation, relying on conclusory
statements by fiduciaries against family, who are often
prevented from defending themselves against these unproven
allegations accepted by a judge as evidence, contrary to
law.
Government,
professional organizations and media have been reporting on
guardianship problems for more than 20 years now, during
which time guardianship has grown into a new major industry.
In fact, guardianship is replacing family law as the new
'bread and butter" of the organized Bar. Although the major
problems - lack of monitoring and oversight - have long been
pointed out, they continue unabated. The time spent studying
and discussing the problem has not brought any significant
protection to the increasing number of innocent victims of
fiduciary exploitation. The future for Boomers is bleak
unless talk is replaced by action.
A growing problem is
the "emergency" or temporary guardianship, which easily
morphs into a permanent guardianship. There is often no
notice prior to "hearings," which can take but five minutes,
while control of a person's life and property is quickly
given to strangers by the courts.
There is no
accountability - neither the appellate process nor the
grievance process provide relief to victims or their
families desperately trying to free them.
Guardianship has
become a lifetime sentence to innocent people who have
committed no crime, yet are afforded less rights and
liberties than convicted felons.
In an appalling and
paradoxical twist, when a ward's assets are fully drained by
the fiduciary, the newly indigent ward becomes the financial
responsibility of the American taxpayer, who now is forced
to pick up the tab for the ward’s remaining lifetime care
through Medicaid. One of the indisputable ironies we are
presenting here for resolution is the fact that the American
taxpayer was also supposed to be protected by guardianship
law, but has now become a victim as well.
Because complaints
to various agencies and officials – both state and federal -
fall on deaf ears, Congressional intervention is critically
needed to force reform.
Our Table of
Contents highlights the specific problems of unlawful and
abusive guardianship and conservatorship.
See "An Open Letter To Congress and the White House"
See "An Open Letter To Congress and the White House"
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The recent MetLife study\1/
on the comprehensive subject of elder abuse once again
focuses on theft by family members rather than by
court-appointed fiduciaries\2/
who too freely liquidate entire estates by means of
exorbitant or fraudulent billings and proceedings.
The cold reality is that keeping the focus and the spotlight on families\3/ enables the continued milking of the helpless by “professionals” appointed by the courts to protect them. How can MetLife and others almost completely overlook this entire category of elder abuse? How can Congress continue to ignore it, especially after GAO’s\4/ September 2010 report\5/ clearly substantiating this growing problem?
The cold reality is that keeping the focus and the spotlight on families\3/ enables the continued milking of the helpless by “professionals” appointed by the courts to protect them. How can MetLife and others almost completely overlook this entire category of elder abuse? How can Congress continue to ignore it, especially after GAO’s\4/ September 2010 report\5/ clearly substantiating this growing problem?
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“Most of
the allegations we identified involved financial
exploitation and misappropriation of assets.
Specifically, the allegations point to guardians
taking advantage of wards by engaging in
schemes that financially benefit the guardian
but are financially detrimental to the ward
under their care. Also, the allegations
underscore that the victim’s family members
often lose their inheritance or are excluded by
the guardian from decisions affecting their
relative’s care.”
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NASGA has addressed
guardianship\6/
abuse by fiduciaries in three
previous white papers to Congress and the White House\7/;
yet, when any legislator has come
forward to champion the cause of guardianship reform and
propose legislation, the focus of said reform
continues to concentrate on family members as guardians and
is limited to suggestions of
grants for certification, training, background checks – none
of which addresses the growing threat of professional
for-profit and “not-for-profit” fiduciaries freely bleeding
their victims into indigence and onto Medicaid, at
the expense of the currently unsuspecting taxpayers.
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[1]
“Elder Financial Abuse: Crimes of
Occasion, Desperation, and Predation Against
America’s Elders,”
June 2011,
http://www.metlife.com/mmi/research/elder-financial-abuse.html
[2] Nonfamily members, court-appointed guardians and attorneys .
[3 ] NASGA acknowledges that sadly, and perhaps more than ever due to the current economic conditions, some families do financially exploit and abuse their vulnerable elderly and/or disabled through misuse of powers of attorney and other financial controls or even in guardianships and conservatorships, while fiduciary abuse has become an actual industry. We applaud media’s growing attention to the general category of "elder abuse" and increasing response of various state legislators.
[4] Government Accountability Office
[5] “Guardianships – Cases of Financial Exploitation, Neglect, and Abuse of Seniors,” September 2010, http://www.gao.gov/new.items/d101046.pdf
[6] ”Guardianship,” as used here, is meant to include conservatorship.
[7] “Reform of Unlawful and Abusive Guardianships and Conservatorships and Abuse by Courts and Fiduciaries” http://www.AnOpenLetterToCongress.info;
“A Review of Unlawful ‘Emergency’ Guardianships,” http://www.AnOpenLetterToCongress-2.info;
and
“The Fleecing of Medicaid and theTaxpayers, http://www.AnOpenLetterToCongress-3.info
See:
AnOpenLetterToCongress-4.info
[2] Nonfamily members, court-appointed guardians and attorneys .
[3 ] NASGA acknowledges that sadly, and perhaps more than ever due to the current economic conditions, some families do financially exploit and abuse their vulnerable elderly and/or disabled through misuse of powers of attorney and other financial controls or even in guardianships and conservatorships, while fiduciary abuse has become an actual industry. We applaud media’s growing attention to the general category of "elder abuse" and increasing response of various state legislators.
[4] Government Accountability Office
[5] “Guardianships – Cases of Financial Exploitation, Neglect, and Abuse of Seniors,” September 2010, http://www.gao.gov/new.items/d101046.pdf
[6] ”Guardianship,” as used here, is meant to include conservatorship.
[7] “Reform of Unlawful and Abusive Guardianships and Conservatorships and Abuse by Courts and Fiduciaries” http://www.AnOpenLetterToCongress.info;
“A Review of Unlawful ‘Emergency’ Guardianships,” http://www.AnOpenLetterToCongress-2.info;
and
“The Fleecing of Medicaid and theTaxpayers, http://www.AnOpenLetterToCongress-3.info
