(b) Guardianship shall be utilized only as is necessary to promote the well-being of the person with a disability, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual's actual mental, physical and adaptive limitations. 

(Source: P.A. 99-143, eff. 7-27-15







The phenomenon of Guardianship

 

Introduction:

In order to discuss guardianship the concept has to be explained. 

Throughout history there have always been people who were disabled and needed help to make their way in society.     Some of these people were born disabled, and others developed their disability as the result of some environmental problem such as an accident, or because of illness, or old age, or some other situation.     The solutions that various civilizations came up with varied from killing the disabled off, benign neglect, and/or providing aid to these people so that their lives were rich and fulfilling.    American has chosen to do the latter.    In pursuance of assisting the disabled to continue living life to the fullest Congress and the State Legislatures adopted the English Law concept of parens patrie.

Society thus assumed responsibilities for making certain that every person (and particularly citizens) was able to enjoy all the benefit of a democratic society.     Congress enacted the Americans With Disabilities Act and mandated that government and society in general provided a “reasonable accommodation” for the elderly and the disabled.     This did not entail herculean endeavors, only a slight extra effort on he part of government and others to comply with the “golden rule.”    

 

Who is a disabled person:

 

States have enacted Statutes that describe what is meant by disabled person who is subject to guardianship.     In addressing guardianship each State has to recognize that the disabled person does not lose his/her citizens because his/her disability, but, the rights of citizen are vested and are retained during the period of disability.      The Illinois Statute (which is uniform statute) and which is echoed in the guardianship statutes of each state provides:

 

 (b) Guardianship shall be utilized only as is necessary to promote the well-being of the person with a disability, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual's actual mental, physical and adaptive limitations. 
(Source: P.A. 99-143, eff. 7-27-15.)

 

This statute is found at 755 ILCS 5/11a – 3.      The words of statute contain limitations, to wit:

1.       Purpose:  promote the well-being and protect from neglect, exploitation, and abuse

 

2.       Object:   encourage development of maximum self reliance and independence

 

3.       Limitation on guardians authority:   guardianship shall be ordered only the extent necessitated by ward’s individual actual mental, physical and adaptive limitations.

 

 

This does not mean that a guardian can be ordered for everyone who is not an Einstein and/or have the dexterity of a Walter Payton.    Most of the judges, lawyers, and guardians fall far short of both Einstein and Payton.   What this means is that a person who knows the objects of his bounty (relatives and family), knows the nature of the extent of his property, and can perform a simple business transaction does not need a guardian.    It means that the ward must have some demonstrable mental, physical or adaptive limitations that actually need a reasonable accommodation.

 

Practical application:     In the Sykes case,  Mary was totally separated from her family, friends, guardian club, church.   The fact that she did her own banking, kept her own accounts, purchased her own food, ran her own home all on her own was ignored by the corrupt judge/lawyers/judicial officials.    The fact that she was able – on her own- to address the theft of her money by her older daughter, who became her guardian- to travel to the Circuit Court of Cook County and file a sworn Petition for an Order of Protection was ignored.     The fact that Mary was able to smuggle out cries for a lawyer was ignored.

In many of these case, a guardian is appointed in the same manner as a patron at Starbucks orders a second cup of coffee.    Corrupt judges toss out the rights of the alleged disabled without regard for the Constitution or for humanity.   Mary Sykes was not a disabled person – she was kidnapping victim.

Carolyn Wyman, was similarly kidnapped and placed in a nursing home even though she was also competent.   Her husband, who wanted to control her, had her declared incompetent.    She was softened up by the infamy of the nursing home.   After she was raped at least once, two of her son’s engineered her escape.   She lived without her guardian and supported herself by selling paintings that she composed.      

 

How is it determined that a guardianship is necessary:

 

To qualify for a guardian the ward must have (by definition) an actual need for a reasonable accommodation.      This requires a hearing by the Court, and the person seeking the appointment of a guardian must prove by clear and convincing evidence of the said need.     (see 755 ILCS 5/11a – 10)     If an individual cannot make rational decisions, it requires expert testimony to determine the true extent of the person’s limitations.    This is an objective not subjective situation.     If I as an adult America want to donate x dollars for the care of my cat, that is my inalienable right and no one has a right to over-rule my donative intent.     More importantly no one has a right to ‘second guess’ my decision no matter how silly the gift may seem to my wife, my children, Judge x, GAL y, etc.       The guardianship should not be a kangaroo or a cafeteria Court.     

Similarly, if I choose the circuitous route home, it does not prove me in need of guardian; however, if I regularly get lost and need help to find my home I might have a need for a limited guardian.     It is simply a matter of degree modified by the fact that I as an American Citizen have inalienable rights including the right to be stupid.   If I place myself and others in serious danger society might have a ground to protect me from myself and the public from me.     However, this is a touchy problem.

As the targeted individual might actually be incompetent, the requirements of due process have to be observed, i.e. notice and hearing.     The notice provision cannot be fulfilled unless the person who is to be given notice is protected, ergo,  people who ‘care’ must be notified and given the opportunity to protect the alleged disabled person.   755 ILCS 5/11a – 10.      This means that brothers, sisters, spouses, children, siblings et al have to receive PRIOR notice.    (The targeted individual also has to receive summons which explains his/her rights)      The notice has to be adequate to allow the family and/or the alleged disabled person to address the possible violation of his/her liberty and property rights.

 

Practical Application:           In the Mary Sykes case the miscreants including the dishonest jurist, corrupt lawyers et al could not afford Mary Sykes to have a hearing or could they afford notice.     In Mary’s case 09 P4585 it is demonstrated that the NOTICE  requirement was ignored.   The Sheriff has reported that he has no record of any return of summons on Mary.    It has not been denied that the jurisdictional prior notices to family (including siblings) was ignored.  And there is no record of any hearing.   In fact a Guardian ad Litem in an e-mail to Mary’s daughter reported that he and other got together decided that Mary was incompetent and the corrupt judge rubber stamped an order giving complete control of Mary’s liberty, property and humanity to the very person who Mary sought an order of protection against.     

The Wall Street Journal Article indicates that guardianship is treated as a perk for the elder cleansers who have the clout to be on the privileged list.      

In the Gore case and in many others,  the first step is to appoint a ‘caring’ offspring of the alleged incompetent as the guardian.    The guardian ad litem then is delegated to stir up controversy or an apparently breach of fiduciary relationship by the ‘caring’ offspring guardian.    An indignant Judge then goes ballistic,  sanctions the family member and appoints one of the guardians for profit.      In the ‘Gore’ case a grandchild who was mentally disabled was appointed as a successor guardian and using her as a strawman the miscreant guardian ad litem, judge, and 18 USCA 371 conspirators made a 1.5 million dollar estate and 29 teeth laden with gold filings disappear.          

 

What does a guardianship mean?

 

A guardianship means a forfeiture of certain inalienable rights so as to engender the disabled person with the abililty to enjoy the maximum of liberty, self reliance and enjoyment of the fruits of his/her American citizenship.    IT IS NOT A DELEGATION TO ANOTHER INDIVIDUAL OR CORPORATION TO FORFEIT THE RIGHTS OF CITIZENSHIP OF THE ALLEGED DISABLED PERSON or to ravage the estate of the aforesaid disabled person.     The guardianship is intended to be very limited and only to apply to actions that benefit the estate and are both reasonable and necessary.    It is not intended by any stretch of the imagination to limit the ward’s desires, wishes, and prior life.    It is not intended to isolate the ward from family and friends, or to enrich the miscreant 18 USCA 371 criminals who prey on the elderly and the disabled.

Today, as the GAO reports indicate, as well as the literally thousands of citizens have complained the guardianship situation has become a cottage industry to generate for the guardian and those acting in concert with him/her a forfeiture of the ward’s liberty, property, self reliance and loss of humanity.

 

Practical Application:      In the Sykes, Gore, et al cases the guardianships were profit making operations fully intended by the miscreant judicial officials (including but not limited to lawyers, judges, guardians et al) to enrich themselves with the assets of the disabled person.      The first act of the guardian in the Sykes case was to get access to a safety deposit box containing the gold coin collection of Mary’s husband and a relative.    This box contained over a million dollars in uncirculated gold coins purchased for local coin dealers and other sources.     Not one coin was inventoried.     The two guardian ad litem protested vigorously when family protested this theft.    The guardian of course never denied the theft.

Systematically every asset in the disabled person estate was garnered under the control of the guardian and made to disappear.    Even though Mary knew the objects of her bounty, the extent and nature of her estate and could complete some very complex business transactions she was stripped of her liberty, property, humanity, and isolated from her sisters, her younger daughter, her friends etc.    When every dime of Mary’s property was in the hands of the miscreants, she like Alice Gore was secretly disposed of.     The family of Alice Gore was not notified of her demise.    Mary’s demise was not a secret, but her daughter’s attempts to obtain and autopsy were thwarted.

 

Observations:

 

The laws of America including the laws of guardianship are well thought out and if followed would address the serious problem of an aging population;  however,  the amounts of money available to the miscreant guardian and judicial officials is so great that these corrupt public officials are less afraid of the consequences of their miscreant and criminal conduct that missing out on the opportunity of easy money.     

Facts to consider:

 

·         Guardians are fiduciaries.   As fiduciaries they owe the highest standard of honesty, fidelity and loyalty to the ward.      This means that the guardian is intended to be selfless in his  obligation to “ promote the well-being of the person with a disability, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence.”

·         As a fiduciary the guardian must act solely for the benefit of the ward.   This means quite simply that the guardian cannot promote his own interests, must account for every dime, cannot make even an incidental profit and essentially be selfless in his/her pursuit of the ward’s interest

·         A guardian cannot receive any remuneration other than for services which are absolutely necessary, for the benefit of the ward, and promote the interests of the ward.    In other words, hiring a law partners as the guardian’s attorney and generating thousands of dollars in legal fees is strictly prohibited.  

·         A guardian’s payment for services must be based upon those services which are reasonable and necessary and represent the benefit to the estate.   The engagement of attorneys to silence neighbors and friends of Mary Sykes who complained of her isolation, abuse, exploitation and forfeiture of his liberty and property is not compensatible.

·         A guardian’s need for an attorney to represent his interests is limited.  If the guardian is performing his/her services properly there is little need for legal representation.

 

The proposition that the elderly and the disabled are ripe for fleecing is alien to America’s core principles.    Unfortunately this has become the norm, rather than the exception.   

 

 

Ken Ditkowsky

www.ditkowskylawoffice.com