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/   When 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 Industry.”

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 greed.

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 elusive.

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 rolls.\8/

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 the country.

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 – www.StopGuardianAbuse.org

Respectfully,


/s/ Elaine Renoire
ELAINE RENOIRE, President


 

2 Referred to as “guardianship” throughout this document. NASGA does not advocate against guardianship; we advocate against unlawful and/or abusive guardianship and for those persons (wards and their families or friends) who have been harmed by such proceedings.

3 A general legal standard.

4 Fiduciary appointments to campaign contributors, as one example.

5 A person to whom property or power is entrusted for the benefit of another, in the nature of trust and confidence.

7 See our victim stories: http://stopguardianabuse.org/victimsandtheirstories.htm

8 CBS reported on the outrageous billings, following which the guardian operation shut down. CBS Evening News, 12/23/10, “Guardianship Agency Cost Woman Dearly,” http://www.cbsnews.com/stories/2010/12/23/eveningnews/main7179542.shtml

9 "The Fleecing of Medicaid and the Taxpayer," www.AnOpenLetterToCongress-3.info

10 New York Post, 09/03/07, “Judge Money Melee – Guardians Lax on Tax,” http://www.nypost.com/p/news/regional/item_gQR9RvRnwU04YcP1MHHLBO

11 “what for what” or “something for something”; actually, the consideration in exchange for which…

13 "Incapacitated Adults: Oversight of Federal Fiduciaries and Court-Appointed Guardians Needs Improvement," http://www.gao.gov/new.items/d11678.pdf