NATIONAL AND WORLD MEDIA ARE NOW ABUZZ WITH HORROR STORIES ABOUT THE WEALTHY - Astor, Evans, Helmsley, Phillips and now Brittney Spears - AND NOT-SO-WEALTHY WHO HAVE BECOME VICTIMS OF GUARDIANSHIP (CONSERVATORSHIP IN SOME STATES) AND HAVE HAD THEIR ESTATES DEPLETED OR TOTALLY WIPED OUT AS A RESULT.
The Terri Schiavo case was all about unlawful "guardianship," with continuing coverup all through the courts. It is one of the very worst examples of what corrupt judges and unethical lawyers can do with the power of life and death in their hands.
DID TERRI HAVE TO DIE SO HER HUSBAND COULD INHERIT THE REST OF HER DAMAGE AWARD?
Question: But what if you wind up in front of a corrupt judge who ignores the grantor's wishes?
These big-name well-publicized cases - Astor, Brittney, Evans, Falk, Helmsley, Phillips, Schiavo, Spears, and now Suleman,the "OctoMom" - are finally shining the spotlight on little-known problems in these areas and getting the attention of Americans on this issue.
WHAT YOU NEED TO KNOW ABOUT UNLAWFUL AND ABUSIVE GUARDIANSHIPS/CONSERVATORSHIPS:
Many lawyers write articles suggesting advance directives, including a Durable Power of Attorney ("durable," meaning it remains in effect after a person becomes incapacitated).
Answer: He can override any legal document executed by the AIP ("alleged incapacitated person.")
Question: But what if you wind up in front of a corrupt judge who ignores the grantor's wishes?
Question: Aren't there any safeguards against that?
Answer: That's up to your state legislators and prosecutors. An honest judge will hold a full evidentiary hearing to determine the validity of the prior Durable Power of Attorney - the issue being whether the AIP was incapacitated at the time of execution. A corrupt judge will not hold any hearing; he/she will just ignore the Power, and sometimes invalidate (with a stroke of the pen) even a Last Will and Testament, putting all sorts of liberties in the hands of the fiduciaries.
Question: Why would a judge do that?
Answer: By unlawfully overriding the powers granted, he can then put his academic or political buddies into the guardianship, to make-work and feast on fees.
Question: What is the quid pro quo; i.e., what's in it for him/her?
Answer: That we will not know until the prosecutors start prosecuting judicial corruption in a meaningful way.
Some people have described it as a "bounty hunting" operation, with headhunters running computer searches for financial and personal data on potential victims who wind up in a hospital and transfer to a nursing home (whether by reason of illness or even just a fall on the sidewalk). The nursing home lawyer or someone else then petitions for a guardianship. The assigned judge then distributes his patronage to his pals, in the form of fiduciary appointments as guardian, court evaluator, counsel to the AIP, etc. Would it shock you to learn that there is no requirement in New York for mandatory counsel to represent a person believed to be incapacitated? It won't when you read on. Many adjudication "hearings" are held which are totally sham, replate with constitutional due process violations, and conducted in complete contravention of statutory protections promulgated by the states, and practice rules issued by the courts.
Who's supposed to watch the guardians?
Who's been watching the judges?
Here's what we learned about guardianship in New York:
In January 1999, the New York Law Journal ran the following story:
"A THREE-YEAR crackdown on court examiners appointed to monitor the work of guardians for incapacitated persons has resulted in the removal of five examiners and the resignations of two others."
In 2001 the New York Daily News ran a series on guardianship abuse, aptly entitled "Milking the Helpless," which began with this headline:
"Attorneys are siphoning off millions from the elderly they have sworn to protect." May 20, 2001, pg. 1."
(Isn't lawyer overbilling, billing for unnecessary services or billing "legal-fee" rates for services not required to be performed by a lawyer, the same as stealing? You can't blame people for being dishonest when they know they aren't being watched. In fact, isn't overbilling one of the major causes of consumer dissatisfaction with lawyers?)
The publicity led to public hearings by a specially appointed Commission and an investigation by a newly appointed Special Inspector General (SIG) for Fiduciary Appointments. The Commission report was issued in December 2001. The SIG report was also issued in December 2001. Neither report named names. Several judges left the bench rather than face charges.
The result? New rules for fiduciary appointments, and a computerized system to track appointments and fee awards.
* The organized bench and bar and their self-policing organizations,
which don't seem to care how low they are sinking in the public esteem, and who punish the lawyer whistleblowers;
* the corrupt judges - for perverting the law and not supervising the guardians properly.
* the court examiners for being too greedy and refusing to do their work;
* the appellate divisions - for not overseeing the court evaluators;
* the Office of Court Administration - for not monitoring everything;
* the legislators, for not holding oversight hearings and putting teeth in the guardian statutes; and
* the executive branch (law enforcement), for not prosecuting complaints against lawyers and judges.
In February 2005 the Birnbaum Commission issued an updated report - with guess what recommendations?
"The Commission recommends establishing offices of `court examiner specialists' within the court system to monitor court examiner performance, review work product, ensure that all required accountings are being timely filed and expeditiously examined, and target cases that are out of compliance."
"The Commission also would support bringing the court examiner function in-house.
"The Commission recommends that the court system explore, initially on a limited or pilot basis, the viability of outsourcing the court examiner function to interested and appropriate outside nonprofit organizations.
"The Commission recommends that the Appellate Divisions adopt regular evaluation and reappointment systems for court examiners.
"The Commission recommends that the court system maintain strong internal controls and continue its efforts to develop an active and vigorous auditing system that deters wrongdoing and laxity."
"The Commission recommends that the Appellate Divisions consider adjusting court examiner fees, which have not been increased since 1991, to help attract and retain competent court examiners. The Commission recommends that the Part 36 annual compensation limit be raised from $50,000 to $75,000 for court examiners."
What conclusion can we come to other than that there is obviously still no meaningful oversight, that they won't stop the bleeding, and that the fees are going up, up, up while the assets go down, down, down?
Seeing the numerous violations, you must wonder whether that judge is simply incompetent or extremely corrupt!
In addition to noncompliance with law as in the above example, there are other more nefarious tricks in use by the "bad guys." Here's one of them:
Intimidating Family Members:
When a family member petitions to be appointed as a guardian, the unethical lawyers (particularly those who make "guardianship" their prime business) will submit affidavits (or affirmations under penalty of perjury) in which they make "conclusory" statements maligning the family member(s), claiming they are not fit to be appointed as guardian. "Conclusory statements" are those which are merely unproven allegations not supported by real evidence. As a matter of law, they cannot stand alone, but must be subjected to an evidentiary hearing at which the accuser can be cross-examined, in order to determine their truth or falsity. The corrupt judge, instead of holding such a "due-process" hearing where both sides can be heard, under oath (with or without a jury), simply accepts the conclusory statements and appoints a lawyer (or retired judge) instead - usually a law school buddy or a political crony. (This is a violation of due process.)
Our investigation of court records disclosed that the "family blame game" is a popular modus operandi in use by unethical lawyers. When family members don't know their rights or how to legally oppose false allegations, the guardianship perps are left free to acquire the ward's assets for themselves, assisted by the corrupt judge, who will pervert the law rather than obey and apply it properly.
The Internet and more lately, the media, have made the public aware of just how bad the "justice" system is, but we're still getting only "lip service" from the powers-that-be about the loss of public trust in the integrity of the courts, with no meaningful change.
Question: Do you know why lawyer-legislators won't clean up the acts of their judiciary brethren?
Answer: They're afraid they may have to appear before them some day!
Put the blame where it belongs - on everyone on the list above - all of whom do nothing meaningful to clean up the VERY SICK system.
The historical purpose of guardianship - or "lunatic proceedings" as they were long ago known - was for a conservator (now "guardian" or "conservator") to protect the alleged IP's person and property, and to keep the IP from becoming a public charge - this, under the police power of the state. The police power of the state arises from its duty to protect its citizens - "parens patriae"! Those adjudged (see below) to be incapacitated become wards of the State.
What Happens When the Money's Gone?
The greedy, unethical guardian, after bleeding out the estate (whether through unnecessary and excessive legal fees or by outright theft), petitions the court to withdraw. How many bad guardians do you think have any sense of duty or obligation to stay on the assignment pro bono, without getting paid, when there is no money left?
THE WARD, WHOSE ASSETS HAVE DISAPPEARED,
(AND FREQUENTLY, ALL THEIR PERSONAL PROPERTY AS WELL),
NOW NEWLY INDIGENT,
Have you been victimized by a guardianship proceeding?
Has the court provided due process of law?
Have you ever tried to get a prosecutor to investigate a lawyer or judge - and just been ignored?
Have you ever complained to a chief judge or administrator and gotten a boilerplate reply:
"If you don't like the decision, you can appeal or file a grievance"?
Have you ever tried to file an appeal or judicial or attorney grievance?
Was it dismissed, in a word, with nothing more?
Have your individual pleas fallen on deaf ears?
Reform will never come from within the system unless and until there is a huge public outcry.
If you want reform, you have to work at it. Together, we can see to it that the runaway guardianships end. Did you know that now even minors with personal injury awards are targeted for guardianship (with the same asset depletion as the vulnerable elderly)? We must protect them, their families, and the UNWARY TAXPAYERS. If the states don't clean up their own acts, we must seek federal intervention to ensure that the laws will work as originally intended.
(Please report any dead links)
2001 Report of the Commission on Fiduciary Appointments
2001 Special Inspector General's Report
2004 Grand Jury Report
2005 Report of the Birnbaum Commission on Fiduciary Appointments
NYS Guardian & Fiduciary Services
NYS Courts General Index
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