REPORT TO THE SPECIAL RAPPORTEUR ON TORTURE, UNITED NATIONS ADULT GUARDIANSHIP AS A FORM OF TORTURE IN THE UNITED STATES

Editor's note: Your ProbateShark believes that an exception to the attached rapporteur regarding torture should be made for an elderly scumbag who defrauded Medicare-Medicaid for a billion dollars. Lucius Verenus, Schoolmaster, ProbateSharks.com

REPORT TO THE SPECIAL RAPPORTEUR ON TORTURE, UNITED NATIONS

ADULT GUARDIANSHIP AS A FORM OF TORTURE IN THE UNITED STATES

 

SUBMITTED BY ITHACA

PO Box 50, PMB 207

Lake Arrowhead, California 92352

December 5, 2016

CONTENTS

REPORT ON GUARDIANSHIP TO THE SPECIAL RAPPORTEUR ON TORTURE

Overview of Guardianships in the United States

Guardianship Abuse and the Definition of Torture

Forced Drugging and Torture

Retaliation Against Guardianship Activists

Exhaustion of Domestic Remedies

A “Kinder, Gentler” Holocaust

APPENDIX

Attorneys’ Declarations

Victims’ Statements

Advocacy Groups Victims’ Statements

News Articles

 

OVERVIEW OF GUARDIANSHIPS IN THE UNITED STATES

Abuse of alleged incapacitated persons who are under state court authorized guardianships has become epidemic in the United States. According to a 2010 report issued by the US Government Accountability Office, “GAO identified hundreds of allegations of physical abuse, neglect and financial exploitation by guardians in 45 states and the District of Columbia between 1990 and 2010.”

Guardianships are part of parens patriae, through which governments initiate programs to care for the vulnerable who may not be able to fend for themselves. In the United States, guardianships are generally launched through state court proceedings when there are allegations that an individual is lacking capacity to care for his personal or financial needs. Upon appointment of a guardian by a judge, the alleged incapacitated person (AIP) loses most of his legal rights, including the right to choose or refuse medical care, the right of association with family or friends, the right to hire a personal lawyer to defend against the guardianship and the right to remain in his own home. As the court appointed guardian is usually granted control over the AIP's financial affairs, one can quickly see where such a process might be open to abuse by those who only seek self enrichment, not the benefit of the ward.

This report to the Special Rapporteur on Torture will summarize the abuses that are now becoming alarmingly pervasive through state court authorized guardianships in the United States. The Appendix contains victims’ statements, attorney declarations and a compilation of news reports.

GUARDIANSHIP ABUSE AND THE DEFINITION OF TORTURE

Guardianship abuse in many cases meets the definition of torture as elucidated in Article 1 of the United Nations Convention Against Torture. Precisely, Article 1 states

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

It is the contention of this report that guardianship abuse has reached the standard described as torture in many of the referenced cases, in that “severe pain or suffering, whether physical or mental” has been intentionally inflicted on the wards, due to the indifference and callous disregard by those mandated to attend to the well being of their charges. The pain and suffering has therefore been inflicted not to obtain information but rather through extreme indifference by those who are pledged to care for the individuals under guardianship. This indifference is based on a discrimination implicit in the perception that incapacity or disability can be equated with worthlessness.

In many of the cases discussed herein, the infliction of pain and suffering has resulted in the ward's death. In a number of these cases, such as the guardian’s decision to withhold antibiotics when AIP Elizabeth Fairbanks came down with pneumonia, one could rationally conclude that the death was intentional.

In addition, the pain and suffering discussed in this report also meets the definition of torture because it is “inflicted by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity.” As guardians are appointed by state court judges and as the judges are mandated to provide oversight and approval for the guardians' actions, and as lawyers, licensed by State Bars are also involved in the guardianship processes, one can only determine that the culpability for guardianship abuse lies directly with state actors.

As guardianships are ostensibly initiated to care for the well being of the alleged incapacitated person, one of the caveats in the Article 1 CAT definition of torture is inapplicable. The definition states that “It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” As the purpose of guardianship is to care for and preserve the well being of the ward, the application of sanctions or punishment have no relevance. The fact that guardians are in many cases choosing to inflict isolation and medical abuse on their wards is not within the general understanding of “care” for the infirm. It becomes “lawful” only because it is approved by a judge, even when in defiance of written law.

The reality is that when a person undergoes guardianship he experiences legal nullity. He has no right to go to court and complain about his treatment and has no rights to refuse abusive treatment or to remove himself from his abusers. Guardianship constitutes a legal loophole in which a person can be denied his Constitutional and statutory rights. He becomes trapped within a system in which he has no legal viability.

Very often, the few legal rights afforded those under guardianship or those who are attempting to advocate for those under guardianship are simply ignored. When William Horspool brought to San Bernardino Court (California) photographic evidence that his father, WWII veteran and conservatee Raymond Horspool, was being physically neglected by the guardian, Judge Michael Welch ordered the pictures destroyed and then levied a restraining order against William Horspool, so that he could no longer visit his father unsupervised and take such damning photos. Was this “lawful?” Not at all. William Horspool was not granted due process under the law and was “legally” restrained without ever having a hearing on the restraining order.

Raymond Horspool's life was subsequently terminated by his guardian, who decided that Horspool's chest implanted pacemaker should not be recharged when its battery ran down. Horspool died from a heart failure that was entirely preventable should his guardian (who parenthetically stood to inherit from Horspool's demise) have taken the necessary medical steps to have the battery replaced.

Guardians are regularly making end of life decisions for their wards, when the guardians stand to profit should the alleged incapacitated person die. Such a circumstance was clearly in evidence in the Lawrence Yetzer matter, also in San Bernardino court. There should be no dispute that putting Yetzer on a ventilator, then plying him with medications to inhibit his ability to breathe independently, then removing him from the ventilator and letting him die, would constitute an act of torture as well as premeditated murder. As you will see from the attached article concerning the Yetzer case, hundreds of thousands of dollars belonging to Yetzer appear to have been stolen by his guardian, Melodie Scott.

FORCED DRUGGING AND TORTURE

In a March 2013 report to the Human Rights Council, Special Rapporteur on Torture Juan Mendez focused on abuse in health care settings as potentially constituting torture. Mendez stated “In order to demonstrate how abusive practices in health-care settings meet the

definition of torture, the key elements of the definition of torture and ill-treatment and its

applicability to the abuses in health-care settings are examined. Important interpretative

and guiding principles such as legal capacity, informed consent, and the doctrine of

“medical necessity” as well as the concept of stigmatized identities provide useful

guidance in understanding the breadth of the problem and the underlying causes that are

paramount to most of these abusive practices.” He goes on to discuss the necessity of repealing “provisions allowing confinement or compulsory treatment in mental health settings,

including through guardianship and other substituted decision-making...”

Central to the discussion of compulsory mental health treatment is the issue of forced drugging. The atypical anti-psychotics, which are lauded for suppressing auditory hallucinations, are used prolifically for non psychotic disorders and are liberally used on elderly people who are under guardianships or in nursing homes. Research has revealed that these drugs, such as risperdal and zyprexa, are medically dangerous for the elderly. Since 2005, risperdal has carried a “black box” warning, which states

WARNING: INCREASED MORTALITY IN ELDERLY PATIENTS WITH DEMENTIA-RELATED PSYCHOSIS
Elderly patients with dementia-related psychosis treated with antipsychotic drugs are at an increased risk of death.
RISPERDAL is not approved for use in patients with dementia-related psychosis.

Nevertheless, risperdal continues to be liberally prescribed for the elderly.

For younger populations, atypical anti-psychotics have been associated with increased risk of diabetes and tardive dyskinesia, which is neurological damage, resulting in unsightly and often permanent tremors and jerks. In addition, the continued use of neuroleptics has been noted to result in brain atrophy.

The attached affidavit by attorney Katherine Hine details one such case in which the details of forced drugging and prolonged mental health incarceration reveal the disinclination of Ohio judges to apply the law to those involuntarily incarcerated in psychiatric hospitals or nursing homes.

Those incarcerated in mental hospitals are having their rights to refuse treatment overridden ostensibly “for their own good,” even when such treatment is clearly deleterious. Those under guardianship don't have the legal standing to refuse medication -- even when the medication, such as risperdal, is known to cause increased risk of death.

RETALIATION AGAINST GUARDIANSHIP ACTIVISTS

Those advocating for the rights of alleged incapacitated persons under guardianship would fall into two categories---legal advocates (lawyers) and concerned family and friends. Both groups are now experiencing heavy retaliation in the United States for their efforts to advocate for those under guardianship.

A number of individuals providing information for this project have had restraining or gag orders issued against them. The previously mentioned case of Raymond Horspool is only one of many. Ginny Johnson was gagged from making any statements to the effect that her father's guardian abused or neglected him. Janet Pipes was restrained from making any reports to law enforcement, which effectively removed her right to legal remedy at any level. The author of this document was restrained from contacting law enforcement, Adult Protective Services and bizarrely, even the CIA when she rushed her desperately ill mother, who was under a Riverside County, California guardianship, to a local emergency room. Amalie Phelan was admitted and given life saving cardiac surgery. The subsequent restraining order launched by Amalie Phelan's guardian, Melodie Scott, was never called to hearing and was signed by a judge in private chambers in a deprivation of Constitutional guarantees to due process.

Other forms of retaliation have been inflicted upon family members. Robert Fettgather, PhD, who was advocating for his son, David Fettgather, who has Downs syndrome, was stripped of his psychology license in the absence of any complaints from patients. Barbara Stone, an attorney licensed in the State of New York, was stripped of her law license and jailed four times, after removing her mother from the facility in which the guardian had placed her in order to take her mother out to lunch. Charged with “custody interference,” she faced a potential sentence of five years in prison.

Involuntary expatriation has resulted from some of the retaliation against advocates. Catherine Oloughlin, MD, now fears for her safety should she return to the US. This extreme level of government retaliation has occurred in other guardianship matters, as well. Given the propensity now to jail guardianship advocates, these reports must be taken with utmost gravity.

Attorneys are also being retaliated against for attempting to advocate for clients who are under guardianship. Ken Ditkowsky's affidavit reveals that both he and fellow Illinois attorney, JoAnne Denison, were suspended from the practice of law due to their advocacy surrounding the Mary Sykes guardianship case, in Cook County court. Ditkowsky had repeatedly called for law enforcement to step in and investigate the violations of law in the Sykes case and found himself deprived of his bar license, after fifty plus years in the practice of law. Denison had set up a blog to report on the Sykes case and other problematic guardianship cases which resulted in her suspension from the practice of law for three years, in violation of her First Amendment rights. Other attorneys who have attempted to advocate for those under guardianships, such as Arizona attorney Grant Goodman, have also been suspended from the practice of law.

Equally troubling is the Tim Lahrman matter. Tim had been placed in a guardianship in 1987 which was never legally terminated, although the guardian had long since stopped any interventions concerning Tim, after gutting his business and reducing Tim to poverty. Tim subsequently began to study law and became a paralegal, and developed a strategy to potentially use the ADA (Americans with Disabilities Act) to help others escape the onus of guardianship. His efforts were effective in removing some people from guardianships until March of 2016, when he was summarily arrested on a stale and expired 17 year old misdemeanor warrant, and jailed in Elkhart County, Indiana without bail.

After three months of incarceration, he was able to argue his own case and to get himself free. However, in September, only a few months later, he reportedly incurred a massive heart attack, at the age of 57 and died. Some who knew Tim well are uncomfortable with the reported cause of death.

EXHAUSTION OF DOMESTIC REMEDIES

The US Supreme Court has taken a position concerning guardianship and probate matters. Known as “the probate exception,” this essentially removes the Supreme Court from any necessity on issuing decisions in matters arising in state probate courts. The difficulty in finding remedies to exhaust is enhanced by the tendencies of probate courts to issue gag orders and restraining orders against litigants, which may bar them from exercising their legal rights to make further reports or otherwise engage justice agencies.

In addition, many of those under guardianship die so quickly that the lengthy process of appealing to various levels of courts becomes moot. Ginny Johnson's father, WWII veteran Beverly Hugh Johnson—who was reportedly healthy and active at the time the guardianship was initiated-- survived a scant year from the date when he was removed from his home against his will by his court appointed guardian. Further attempts to silence Ginny, Hugh's daughter and executor of the will, resulted in a judge issuing gag orders and threats of incarceration. By order of Wake County Court Judge Kendra Hill in August of 2014, Ginny Johnson was prohibited from sending “communications of any kind, whether sent by electronic mail, written word, or spoken word, related to claims of abuse, neglect, lack of care, or improper treatment of Hugh Beverly Johnson by Linda Funke Johnson.” (LFJ, no relation to Ginny or Hugh Johnson, was the successor guardian). Judge Hill's order went on to state that “Violation of this Order shall be punishable by criminal contempt of court, including the possibility of imprisonment.” Such an order would have a chilling effect on the pursuit of justice. The tendency to issue such orders has become commonplace in guardianship proceedings and would cripple the ability to “exhaust domestic remedies.”

In addition, advocates have found higher level justice agencies to be disinterested in pursuing allegations of abuse and financial exploitation taking place in guardianships. According to Texas elder law attorney Candice Schwager, a recent letter from the United States Department of Justice states that the US government lacks the resources to investigate and prosecute claims of guardianship abuse.

ITHACA is aware of zero instances of appropriate response by the Federal Bureau of Investigation. The author of this report is aware of dozens of instances where reports were made by family members to the FBI and to this date, knows of no investigations, no prosecutions and no change in the current practice known as “Isolate, Medicate, Liquidate.” The liquidation appears to apply not only to the estate but also to the subsequent death of the AIP, a person with no rights. An article in the section devoted to media coverage, published in the San Bernardino County Sentinel, points to the probability that guardianship court judges are laundering bribes and payoffs through their home loans. If this is the case, then the failure of courts to adequately protect vulnerable adults may in part be attributed to the greed of the judges.

A “KINDER, GENTLER” HOLOCAUST

In pursuit of buttressing the allegations of abuse and torture, this report contains a multiplicity of declarations by individuals who have been impacted by an abusive guardianship. The first group comprises declarations by attorneys. The second group contains declarations by individuals who have had family or friends put under an abusive guardianship. This group also contains a declaration by Karen Federighi, a licensed RN who is currently under a guardianship in Florida. The next group contains statements which were culled from advocacy groups, including the the National Association to Stop Guardianship Abuse and Americans Against Abusive Probate Guardianship. The final group of documents contain recent news articles, some from established news agencies and some from independent or alternative media.

A number of the declarations state that the ward was murdered via the guardianship. The author of this report is aware that, in a number of these cases, there are ample records to support such allegations. In other cases, the ward was so effectively hidden from the oversight of caring and concerned family and friends and buried or incinerated so quickly upon death, that an investigation as to cause of death becomes impossible.

The matter of Charlie Castle exemplifies the complicity of legal agencies at multiple levels. Castle was put under guardianship without ever seeing a judge. Subsequent hearings revealed that the same lawyer was representing both sides and that the temporary judge overseeing the case had either previously or currently enjoyed a position at the same law firm. Statements made by the local district attorney that he would look into the matter were not fulfilled, reports made to Adult Protective Services were substantively altered by the time a local police officer went out to “investigate,” the State Ombudsman refused to follow protocol and research allegations of abuse and neglect and the coroner's report was alarmingly missing the very toxicology report which could have proved that Castle was medically murdered.

In the intervening time, Castle's incarceration in locked facilities was emotionally torturous to him, as multiple individuals who attempted to involve themselves could testify. Other individuals under guardianship have not only been isolated from family and friends but have also experienced profound physical abuse and neglect. When Illinois AIP Alice Gore's teeth were removed from her mouth in order to mine them for their gold content, one cannot help but hark back to what happened to targeted populations in the thirties and forties in Eastern Europe. When AIP Stevie Price was given an unnecessary tracheotomy, which allegedly caused his subsequent death, one cannot help but remember the fatal medical experiments done on other children, by a doctor named Josef Mengele. One must never forget that the very first groups that succumbed to the Nazi Master Race Agenda were the elderly and disabled. There is now a documented case of attempted starvation of an AIP, contained in the declaration by Robin Gibson.

The crimes of torture that are being inflicted upon those under guardianship may include

ISOLATION

SEVERING OF CONTACT WITH LOVED ONES

MEDICAL NEGLECT

UNNECESSARY AND INAPPROPRIATE MEDICAL PROCEDURES

STARVATION

PHYSICAL ABUSE

CONTRAINDICATED FORCED DRUGGING

Many of the individuals whose circumstances are discussed in the attached declarations have already died, victimized without recourse. However, some, such as Leon Bridges and John Rohrer and David Fettgather and Nancy Golin, are still living. Due to the impossibility of gaining recourse through domestic remedies and due also to the fact that the state party named, the United States, will not recognize the competence of the Committee Against Torture to deliberate over petitions not submitted by a state party, ITHACA is submitting this report to the Special Rapporteur on Torture, with the request that he step in and investigate these claims and engage the state party in dialogue. We do so not only to honor our dead, but to protect the living.

These declarations indicate a surfeit of legal documents to substantiate the claims of torture and deprivation of legal rights. Should these supporting documents be of interest, we ask that you please contact ITHACA to obtain the documentation.

Submitted this 5th day of December, 2016,

Janet Phelan

ITHACA co-chair