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.
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.
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.
A Review of Unlawful ‘Emergency’ Guardianships
The Medicaid crisis grows more critical every day and threatens our recovering economy. Rather than government concentrating on eliminating Medicaid fraud and making the system more efficient, the people fear government’s efforts to plug the Medicaid drain will cause them reduction of services.
Although various state attorneys general are now pursuing actual provider fraud more vigorously, another gaping hole exists, allowing billions of dollars of loss to the economy and although well known, remains unplugged and flowing freely.
The legislative intent of state protective statutes is to:
- GUARD the protected person from harming him/herself or anyone else;
- CONSERVE the person’s assets (with prudent investments); and
- PROTECT the taxpayers from the ward becoming a public charge.
State courts have jurisdiction to appoint fiduciaries to protect individuals who are adjudicated as “incompetent.” State courts, however, are not monitoring or adequately monitoring the activities of those fiduciaries, who are left free to misuse, misapply, or manipulate the law for their own self-enrichment.
Operating the proceedings as a profit-making enterprise under color of law, the court-appointed fiduciaries can financially deplete a ward’s estate, create a false indigence, and leave the ward’s lifetime Medicaid care to the taxpayers, even though the protective statutes are supposed to prevent the ward from becoming a public charge.
Simply put, without total monitoring and oversight, the states’ “protective” plans can be operated like “The Protection Racket.”
We are asking Congress to deal with misuse of the “protective” statutes because:
- 50 states with 50 different sets of laws have long failed to protect their citizenry from unlawful and abusive guardianships and conservatorships, despite numerous studies, meetings, and hearings over the years;
- Federal rights and protections are being ignored by state-court judges;
- Federal funds are involved; and
- Baby Boomers, turning 65 this year, constitute 28% of our population today.
The Fleecing of Medicaid and the American Taxpayer
It is not just Medicaid fraudsters who are filing claims with government and cheating the taxpayers. Exploited guardianships are a direct and growing menace to the health and wealth of our vulnerable elderly and disabled – and to our nation’s economy!
The “conserve” directive of guardianship law is all but totally ignored in a growing number of courts across the country. Judges, the ultimate decision makers and protectors of wards of the state, fail to monitor their appointed fiduciaries and guardian cases adequately, permitting unethical guardians to deplete their wards’ assets by means of excessive, exorbitant and even fraudulent fee billings for legal, administrative or nonexistent “services.”
Without meaningful oversight by court administrators and strong law and enforcement by the legislative and executive branches, previously ample estates can be systematically “protected” into indigence. The guardians then place these wards on Medicaid for the remainder of their lives – leaving the American taxpayers holding the bag.
This appalling practice is not Medicaid fraud per se. It is, however, an unaddressed breach of fiduciary duty, resulting in an unforeseen and improper load on the Medicaid system and an unlawful burden on the American taxpayers who are supposed to be protected against this very thing happening – a primary purpose of the “protective” statutes.
Additionally, the excessive cost of needlessly supporting individuals who don’t belong on Medicaid threatens those persons without adequate assets who need essential Medicaid services, which are now jeopardized by threatened budget cuts during our country’s economic crisis.
Boomers Beware of Guardianship Abuse and Conservatorship Abuse
PICTURE THIS: A knock on the door – the police are there to forcibly take you from your home – in handcuffs if you protest! You don’t know why; you’re not a criminal! By the time you find out what’s going on, you’re no longer in control of your life, liberty or property; and you have not been served with any legal documents of any kind!
That – and more – happened to NASGA member Danny Tate, a young and vibrant musician/composer in his ‘50s. When he was finally served with a notice to come to court on a later date, he had no control over his assets, could not hire a lawyer, and the judge refused to give him any adjournment to get help! The conservatorship – built on fraud by his estranged older brother and brother’s lawyer – and aided and abetted by the judge, devoured his $2.5 million estate and plunged him into debt. The conservator made sure the lawyers were paid, but breached fiduciary duty by not paying Tate’s obligations, including his child support payments, and home and health insurance. When Tate complained in open court that the conservatorship harmed him, the judge admonished and shut him down.
Similarly frightening scenes play out all across the country today: the beginning of a potentially lengthy and emotionally, financially, and physically draining nightmare, which can leave the victims pauperized, drugged to death, or in inadequate Medicaid facilities at taxpayer expense.
This growing profit industry, milked by professionals and nonprofit organizations alike, is operated under color – and cover – of law, ironically described as “protective” statutes and commonly known as “guardianship” and/or “conservatorship proceedings.”
Welcome to “The Protection Industry.”
You’re on the victim list if you don’t know your rights and don’t learn how to protect yourself against this growing menace which feeds on greed.
Boomers Beware of Guardianship Abuse
Boomers Beware of Conservatorship Abuse
Judicially Sanctioned Financial Exploitation of Vulnerable Elderly and Disabled Citizens by Non-Family Court-Appointed Fiduciaries
The recent MetLife study1/ on the comprehensive subject of elder abuse once again focuses on theft by family members rather than by court-appointed fiduciaries2/ 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 families3/ 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’s4/ September 2010 report5/ clearly substantiating this growing problem?
|“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.”|
NASGA has addressed guardianship6/ abuse by fiduciaries in three previous white papers to Congress and the White House7/; 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.
 “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
 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.
 Government Accountability Office
 “Guardianships – Cases of Financial Exploitation, Neglect, and Abuse of Seniors,” September 2010, http://www.gao.gov/new.items/d101046.pdf
 ”Guardianship,” as used here, is meant to include conservatorship.
 “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