Expert: Person having a guardian appointed by ND court should have lawyer to protect rights

Expert: Person having a guardian appointed by ND court should have lawyer to protect rights


DALE WETZEL Associated Press

First Posted: April 17, 2012 - 7:35 pm

Last Updated: April 17, 2012 - 7:37 pm



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BISMARCK, N.D. — Having a court-appointed guardian take charge of a person's life means fewer legal protections and potentially graver consequences than being sent to prison, said a medical school professor who is studying North Dakota's guardianship system.

The consultant, Winsor Schmidt, told the North Dakota Legislature's Human Services Committee on Tuesday that North Dakotans in guardianship proceedings should have the right to a lawyer and a jury trial on whether the guardianship is necessary. State law now gives them neither.

In a guardianship case, a judge decides whether the person is capable of making decisions about his or her life. If they are not, a judge appoints someone to make those decisions for them.

"You lose all of your rights. You become a non-citizen," Schmidt said in an interview.

The committee hired Schmidt, a professor at the University of Louisville's medical school, to study North Dakota's guardianship system, and he presented his preliminary report on Tuesday.

His recommendations included providing an attorney at public expense if someone can't afford to hire a lawyer for guardianship proceedings.

"With the criminal justice system, if you're found guilty, at least you know there's a term, and you get out of jail," he said. "With guardianship, it's indeterminate. Once you're (judged to be) legally incompetent, you're incompetent from then on."

The committee's chairman, Rep. Alon Wieland, R-West Fargo, said the panel will review Schmidt's report next month and discuss whether to draft legislation to implement its recommendations.

He says there should be a guardian for every 20 people they have to look after, but the ratio is closer to one in 40.

Winsor Schmidt, a professor at the University of Louisville's medical school, speaks on Tuesday, April 17, 2012, during a meeting of the North Dakota Legislature's interim Human Services Committee in the Harvest Room of the North Dakota Capitol in Bismarck, N.D., about a review Schmidt did of the state's guardianship system. Schmidt says anyone who is the subject of guardianship proceedings should be represented by an attorney. (AP Photo/Dale Wetzel) About 2,000 people in North Dakota have guardians, and the state averages more than 300 new filings annually.

Schmidt's report estimates about 300 North Dakotans lack needed guardianship services, and a guardian's average caseload is between 36 and 39 clients, when a 20-client caseload is considered manageable.

Nonprofit organizations and public administrators in some North Dakota counties provide guardianship services.

Schmidt said the state does not license guardians, and there is little supervision of their work. They are required to file a report annually with the district judge who appointed them, but the reports are seldom examined, Schmidt said.

"Almost all guardians proceed appropriately almost all the time, but there are some who do not," he said. "If you don't actively monitor it ... they know there are things they can get away with, and it's tempting."

Schmidt said guardians should be required to undergo criminal background and credit checks and to carry bond coverage and liability insurance.

He believes a more efficient guardianship system would be supervised by North Dakota's courts. He suggested that each of the state's seven judicial districts have a public administrator who would be responsible for overseeing guardians' work.

Gerald VandeWalle, North Dakota's chief justice, said the court-based approach could have inherent conflicts of interest. District judges would supervise the administrators overseeing the guardians in their regions while hearing complaints about them, VandeWalle said.

The chief justice said he also was concerned about whether the Legislature would provide sufficient money for North Dakota's court system to supervise a network of guardians. The new task could take away from the courts' regular work, VandeWalle said.

"This is a pretty lean machine. We're running our courts with 44 trial judges across the whole state of North Dakota, that have everything from small claims to felonies," VandeWalle said. "There's a limit as to what you can expect ... the system to carry."


http://www.therepublic.com/view/story/a3aa59099d574acf8244563306368866/ND--Guardianship-Services/

Editor's note: Your ProbateShark agrees that in a perfect world Dr. Schmidt's facts would have weight. However, in the corrupt atmosphere of the Probate Court of Cook County, Dr. Schmidt's grand scheme would fail as exemplified by the case history below.

Alice R. Gore Estate value about 1 million dollars: Alice R. Gore, deceased, a disabled 99 year old ward of the Probate Court of Cook County, Judge Kawamoto’s courtroom was hours away from ending up in the Cook County Morgue. Alice's estate was depleted by probate court parasites and there were reportedly no funds to bury her. Her loving family paid for the burial expenses so that Alice would not have to suffer the indignity of being stacked like an Auschwitz inmate in the Cook County morgue. The judge allowed an easily manipulated mentally disabled granddaughter to be appointed as Alice’s guardian and yet no sanctions were instituted against the judge or court officers for this blatant infraction of the law.



Strangely, 16 of Alice’s annuity checks, two of which show forged endorsements, disappeared. Alice’s daughter has a copy of a check with her signature possibly forged. The daughter’s attorney has been trying to obtain copies of the 16 other annuity checks for two years without success. Even more puzzling is a $150,000 life insurance policy owned by Alice and not inventoried into the estate by the court. The Probate Court of Cook of Cook County refuses to investigate these blatant infractions of the law. Lucius Verenus, Schoolmaster, ProbateSharks.com

KawamotoDragon.com