Adult guardianships: how the probate system trumps "unalienable rights"

Adult guardianships: how the probate system trumps "unalienable rights"


NewsSeptember 30, 2010

By: Lou Ann AndersonSubscribe0 Email.Get Top News alerts!

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+Show do not change Contact Email Contact Email2 Contact Url Subscribe to Blog Remember my Info . .Guardianships (also called conservatorships) are legal instruments once largely associated with caring for minor children or perhaps the elderly, but as adult Americans of all ages are increasingly targeted for this status - sometimes under quite questionable circumstances - a closer look is needed at both this freedom-diverting tool and the probate courts in which these actions occur.







Probate courts are often seen as quiet, low-profile venues that perform administrative oversight when people die. The power of these courts is underestimated as they routinely control assets worth millions, even billions, of dollars. The Declaration of Independence proclaims individual's endowment by our Creator "with certain unalienable rights, that among these are life, liberty and the pursuit of happiness" yet with the stroke of a pen, probate judges routinely strip adult Americans of these very rights.







Guardianships can be executed over a person, over their estate or both. Legal declarations of incapacitation or disability are a powerful tool of probate courts and appointed personnel. Anyone seeking to dispute such actions faces expensive, time-consuming court battles in an often biased system that values legal gamesmanship and cronyism, not right and wrong.







Guardianships/conservatorships are currently in the news with speculation that actress Lindsay Lohan could soon be conserved while rumors indicate Britney Spears might be released from hers. Under such a status, a person cannot enter into a contract. They typically lose access to and control of their financial assets and physical property. They can make no decisions regarding living arrangements or medical treatment. In the case of entertainers like Lohan and Spears, career management decisions are no longer their own thus allowing a guardianship's impact to last far past any termination - should in fact that happen.







Complete disregard for a ward's wishes is easily accomplished and accepted under the guise of "acting in the ward's best interest." As guardianships provide much opportunity for exploitation, the administrative ease with which many are initiated is a concern as also is the minimal oversight that follows.







A guardianship can be initiated by anyone. Family members were once a common source of petitions, but today's actions can involve social service agencies, professional guardianship companies, attorneys or other "interested parties" with linkage to the proposed ward. It's become a lucrative business and motivations don't always well serve the ward.







The power seated in a guardianship is massive yet one need not have massive wealth to be an appealing target for an abusive guardianship. The pursuit of assets is an obvious motivation for abusive guardianships. Wards without assets appear to have "headcount" value as participants to fill the rolls of taxpayer-funded programs. Similar stories across the country surface in which Adult Protective Services (APS) employees, professional guardians, other social workers to medical personnel responsible for evaluations (physical and psychological) and even proprietors of facilities that house incapacitated or disabled individuals involve themselves in some questionably motivated guardianship cases.







The true number of American adults under guardianships is unknown. According to the National Center for State Courts, an accurate count of open adult guardianship and conservatorship cases does not exist and collection of reliable data poses numerous problems. This also helps hide the use of guardianships for illicit purposes, but growing anecdotal evidence cannot be ignored.







Ginger Franklin, 52, of Nashville was conserved after a 2008 fall left her with Traumatic Brain Injury (TBI). Despite a 2009 doctor’s release citing Franklin’s recovery with “no restrictions,” the conservator has made no effort to terminate the dependent status and instead mandated Franklin to continue living and working in a group home with mental health patients. In this setting, Franklin reportedly cooks meals, grocery shops for hers and other group homes, dispenses medication, enters data into the home’s computer system, cleans the home as well as cleans the owners’ private homes and those of select relatives. Franklin has directly petitioned the Davidson County probate court to terminate her conservatorship.







The Arizona Republic has spent the last two years investigating probate abuse in Maricopa County. The case of Edward Abbott Ravenscroft illustrates a personal downturn being questionably used to gain control of a person and their property. Nashville singer/songwriter Danny Tate's conservatorship follows a similar pattern as does the case of Florida resident Stewart Rosenkrantz.







Frank and Chila Covington, a couple from north Texas, are parents to Ceci, 39, who was born with Down syndrome. Although Ceci thrived in her parents' home, the Covingtons decided five years ago to relocate their daughter to a group home in preparation for a future in which their caregiving abilities would cease. After a couple of years, the home and the Covingtons disagreed over putting Ceci on psychotropic drugs. From there, the couple was reported to APS and in an ex parte (emergency) hearing, guardianship of their daughter was removed. More than a year and $55,000+ later, the Covingtons have a guardianship removal hearing scheduled. A similar dispute over treatment caused Kathie Seidel, another north Texas resident, to lose rights to her daughter Katia.







The family of Deartis Preston, a 52-year-old mentally disabled man, is fighting a court-appointed guardianship which they say over five years has generated nearly $450,000 of payments to court-appointed officials. Additional stories of suspicious guardianships at told at HelpBringGaryHome.com and Operation Golden Gavel: Investigation and Prosecution of the 'Guardianship Mafia'.







Legal industry insiders who work the probate system rely on talking points that claim to protect incapacitated people and blame disgruntled family members for expensive litigation. They cite allegations of procedural improprieties as exaggerated even "willy-nilly" and claim the lucrative appointments of guardians, attorneys or even physicians are about proper representation, not exploitation.







Whether initiated by the government or an individual, something is wrong when a state-sanctioned racket hijacks its citizens personal liberty and property. It is equally wrong for parties controlling or associated with the guardianship process to establish what strongly appears to be a self-serving contrived system to facilitate financial gain through a "spend down" of private assets, indirect gain by adding wards to an institutional headcount eligible for taxpayer-financed services or a combination of both.







This tool of the probate court may have been conceived as a protective measure for society's most vulnerable, but today, its use for far darker purposes seems to be growing. This is no longer about what might happen to your grandmother - it's about what can happen to you.







Forewarned is forearmed!



http://www.examiner.com/article/adult-guardianships-how-the-probate-system-trumps-unalienable-rights