Reform of Unlawful and Abusive
Guardianships and Conservatorships
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.
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
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.
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.
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
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.
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.
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.
Open Letter To Congress and the White House"