NOTE: The following Resolution passed at the SD 15 and SD 16 Texas Senate District Democratic Conventions on Saturday April 21, 2012

RESOLUTION

Protecting Elderly and Disabled Adults in Incapacity and Guardianship Proceedings

WHEREAS : Many elderly and disabled citizens are subjected to findings of incapacity in a court where a judge can appoint an individual or corporation as guardian of their person or their property and these citizens can be stripped of their all their constitutional and civil rights. They can be stripped of the right to their liberty and their property, of the right to associate with family and friends, of the right to live in their community, and of the right to vote. Often time these vulnerable citizens are denied due process and are denied the right to hire their own attorney to represent them during these proceedings.

WHEREAS : While there are vulnerable citizens who do need some protection, most do not need to lose all of these rights, and some are not incapacitated, but because of flaws in the system and a lack of checks and balances they can end up losing all of their rights. There is a tremendous opportunity for abuse and exploitation under guardianships that can be perpetrated by greedy parties who use the system in an effort to wrongfully gain control of another person’s liberty and property. It all happens under the guise of protection and color of law and in the wrong hands it can be devastating. Sometimes, it seems elderly citizens with assets end up in a guardianship just because they are old and have money.

WHEREAS : Many citizens have never heard of guardianships and are not aware of what rights they have to defend themselves when someone alleges that they are incapacitated and files a petition with the court to have them declared incapacitated and placed under a guardianship.

WHEREAS : Guardianship and incapacity proceedings are extremely expensive due to the high costs of profession guardians and legal expenses that are paid form the individual’s estate. After an individual’s estate has been depleted by the high costs of the guardianships, it is you and I, the American taxpayers, who picks up the tab for the risk when an individual’s Social Security and VA benefits are placed under the control of a guardian who uses them to pay for services that do not benefit them instead of for their care.

THEREFORE, BE IT RESOLVED THAT:

Every citizen subject to a guardianship or incapacity proceeding shall be afforded proper procedural due process before they can be stripped of their liberty and property and, that no citizen shall be denied the right to hire an attorney of their own choosing to defend themselves in an incapacity or guardianship hearing. These citizens shall also retain the right to appeal and the right to request that their rights be restored (at any time 1) after they have been removed by the court.

BE IT FURTHER RESOLVED THAT :

Every individual subject to any guardianship or incapacity proceeding in the court a shall be given advanced written notice (in 14 point bold print) that includes:

(a) Notice of their right to demand a jury trial

(b) Notice of their right to hire an attorney of their own choosing and

(c) An explanation of what rights they can lose under a guardianship2

BE IT FURTHER RESOLVED THAT :

No individual should be involuntarily subjected to a HIPPA release of medical information to any person or entity or involuntarily

subjected to any court ordered medical, psychiatric or psychological exam for the

determination of capacity, without a hearing to determine the need. And, no hearing

BE IT FINALLY RESOLVED THAT :

No citizen under a guardianship shall be denied the right to vote.

Submitted by:

Latifa Ring – Elder Abuse and Guardianship Victims Taskforce for Change and

The National Organization to End Guardianship Abuse (NOTEGA)

FOOTNOTES:

1 In some cases, citizens are denied the right to ask for their rights to be restored for one year. This is unacceptable.

2 The alleged incapacitated person must be informed that they can lose the right to vote, that they can lose the right to marry and the right to divorce. They must be informed that they can lose the right to their liberty and property, that they can lose the right to association with family and friends, the right to decide where they live, to decide what medication they take or not take and what medical procedures they are subjected to. Also that they can lose the right to object to the use of chemical and physical restraints, the right to report abuse, the right to object to chemical testing and trials and the right to have their advanced directives honored by the court or the court appointed guardian, and the list goes on.

3 In recent cases HIPPA releases have been given to guardian ad litem(s) and attorney ad litem(s) without proper notice to the alleged incapacitated person and court orders for psychiatric and medical evaluation issue without an opportunity for the alleged incapacitated person to object .

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