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.\1/
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.”\2/
The ostensible purpose of guardianship and
conservatorship law is to GUARD, CONSERVE and PROTECT incompetent
persons from harming themselves or others and to protect the taxpayers
against these individuals winding up on the public dole.
Over the years, misuse of guardianship law, at the
expense of and to the detriment of the very people the law is supposed
to be protecting, has created a gold mine for fiduciaries who have lost
their moral compass and are driven by greed.
“Guardianizing” a vulnerable person based on false
and fraudulent allegations in a petition filed for nefarious purposes,
unsupported by evidence and in violation of due process, is becoming
increasingly easier as the industry – and the caseload – surges.
Some state statutes have enabled growth of this
industry by replacing “incompetent” (the criteria for wardship) with
“incapacitated,” thereby lowering the requirement and exposing even
persons with minor or temporary physical disabilities to victimization
by unscrupulous fiduciaries and the court system which allows them to
operate nearly unfettered.
Welcome to “The Protection
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
Until now, you may have believed in our justice
system, but if a family feud forces you to court, you’ll learn that
“guardianship” justice is lengthy, costly - and worst of all, most often
Wards taken by these proceedings, whether lawfully or
not, are subjected to a complete and usually permanent loss of liberty
and property, most often to the day they die. Like quicksand, once
sucked into the system, it's almost impossible to get out.
Rather than settle the family dispute in the “best
interest”\3/ of the person the argument is about, unwary or uncaring (or sometimes,
even corrupt) judges may appoint third-party “fiduciaries” - total
strangers – based on their “family blame game” and put them in absolute
control of the newly declared “ward of the state.” There are many
conflicts\4/ in these cases, because it is a specialized practice involving the same
players. “Patronage” is still at play: the continuing appointment of
judicial cronies is commonly now described by victims as “Tag Teams” or
“The Incest Club”!
Once empowered, these “fiduciaries”\5/
can take control of all property and
assets, quickly sell real property (sometimes at below market and to
insiders), evict family members, move the wards to nursing facilities
where they can be put on inappropriate antipsychotic drugs\6/
which hasten their deaths – but not until all the money is gone!
Family members are often shunted aside as
“troublemakers” - not allowed to participate in care and treatment
plans, decision making, and are even deprived of medical information.
Push too hard and your loved one will be isolated in retaliation and you
will either not be allowed to visit, or will have to pay for guard
services during limited supervised visitation.\7/
These “protectors” are now free to bill for “services” – whether
actually rendered or not even billable at all - and at inflated rates.
With the cooperation of an uncaring (or possibly even corrupt)
judiciary, they are free to bleed an estate to death, then dump their
newly impoverished wards onto the taxpayers' backs and the Medicaid
Contrary to popular belief, trust accounts will not shield victims’
assets from plunder if they get caught in the “protection” web. Lack of
monitoring and oversight from the courts allows most fiduciaries free
rein to do as they wish. Example: using 1993 OBRA law, by putting
wards into special needs pooled trusts, their guardians or conservators
are able to hide assets from court oversight and from Medicaid’s
eligibility review process. OBRA, and the Medicaid spenddown, came into
being to protect the family – not the fiduciaries! Special needs
pooled trusts may seem very complicated to us, but not to fiduciaries
who use them as a means of milking the helpless without detection; at
least to date!
While many of these wards were previously financially
capable of paying for their own lifetime care, with hundreds of
thousands – or even millions – of their dollars hidden in these trusts,
the fiduciaries can pass the high cost of care of their wards to the
unwary taxpayers while they continue to take “administrative” fees from
the trust without any necessity to seek court approval. It’s a win/win
situation for the fiduciaries, and a lose/lose situation for everyone
else – the ward, the family, and the taxpayers!
With all the Congressional talk about cutting
Medicare/Medicaid services, wouldn’t it make more sense to plug this
deliberate, unnecessary and reprehensible drain of Medicaid dollars
before cutting necessary services to our elderly or disabled? Do the
taxpayers know what’s being done to them, contrary to law?\9/
Guardianship proceedings are not supposed to be
adversarial, but as the proceedings stray further and further from their
original intent, they become increasingly lengthy and costly. The
wards’ estates are billed not only for the fees for their own ostensible
“protection,” but for their guardians’ lawyer(s) and all other
court–appointed fiduciaries’ “services” as well. In other words, if
wards’ families attempt to free their loved ones or contest the
fiduciaries’ actions, the fiduciaries bill their wards’ estates for the
cost of defending themselves against family claims – even if defending
against their own wrongdoing! This makes a contested guardianship an
unethical lawyer’s dream: the litigation can continue for years, or at
least until the estate is eaten up!
Family members fighting these guardianships in state
courts across the country are damaged along with the wards, both
financially and emotionally. Many are driven to the brink of
bankruptcy, because unlike the “fiduciaries,” their legal fees are paid
out of pocket – not from their loved one’s estate.
There are many stories of fiduciary lack of care,
neglect, failure to pay necessary bills and taxes, etc., but one
specifically egregious and well-publicized case demonstrates that no one
is safe. Some years ago, a New York judge became a victim. His two
former guardians failed to file his tax returns for five years, running
up a million dollar tax bill against his former $10 million--plus
estate.\10/ The guardians made sure to pay
themselves, but they didn’t pay Judge Phillips’ homeowner’s insurance;
so when his home burned to the ground, his estate had to absorb the
damage. Were the guardians held accountable for these breaches of
fiduciary duty? No, they were not.
How can this happen? When there is no adequate or meaningful monitoring
and oversight of these state-court proceedings by appropriate
authorities, anything can happen! We have heard horror stories
involving every facet of bad guardianship from our members all across
Government agencies are doing nothing to help. Go to
the criminal justice system for help, and what is their response?
"These are civil cases." Civil, indeed? There's nothing civil about
what is going on in the name of justice in the “protection” industry!
What fate awaits Boomers in a growingly unjust system
operated by those who enrich themselves at the expense of our loved
ones, enabled by those ready, willing and able to violate the law with
impunity? And what is their quid pro quo?\11/
While most studies and reports done over the years
focus on theft by family rather than court-appointed guardians and
attorneys, thereby overlooking an entire growing category of wrongdoers
victimizing the elderly and their families, Congress’ Government
Accountability Office corroborated the complaints we addressed in our
various documents in their September 2010 report.\12/
Two more reports have
issued since then, one of which, by its title,\13/
indicates a compelling need for reform, but Congress has done nothing to
date, except suggest that funding for training and certification to some
courts might help. In this economy? But more importantly, how do you
train lawyers and other professionals not to steal?
You may think you’ve protected yourself by writing your will, durable
power of attorney, setting up a trust – but none of those things will
shield you should you become a victim of “The Protection Industry.” Bad
judges are known to roll right over those documents!
Boomers represent the last generation of great
wealth, and guess who’s waiting for you to become vulnerable?
Beware the “Protectors”!
Join NASGA and help us in our quest for reform.
Visit our website for more information –
/s/ Elaine Renoire
ELAINE RENOIRE, President
Fiduciary appointments to campaign contributors, as one example.
A person to whom property or power is entrusted for the benefit
of another, in the nature of trust and confidence.