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 .
My dad’s NH guardianship was finally terminated after a two year battle, the guardian hired lawyers on his dime fighting experts findings of competency. He’s a Massachusetts resident; the NH court, after terminating the adjudication of incompetency, ordered restrictions to the right of owning his Massachusetts property. Additionally, the court ordered that he has to produce an irrevocable trust with a corporate trustee, and provide copies to all interested parties including the ex-guardian….how can they do this? I do not believe they have proper jurisdiction over Massachusetts real estate or my dad as a Massachusetts resident.
The court appointed guardian had two attorneys and her bill is well over $200,000.00! and still going
My mother wasn’t informed that she could loose all her rights when my sister petitioned the court to declare her incompetent. My mother didn’t even have an attorney just a court appointed one that did nothing. The 2 doctors and the nurse came to my mother’s house unannounced. The entire thing seems unethical and a total disgrace. My brother and I have asked the guardian to resign, she refusses she continues to keep our mother against her will when she very well knows our mother wants to live with me. Our dear mother cries to get out of the ALF. This guardianship abuse needs stopped. The guardians have to much power. Our mother’s guardian does not care about our mother just her own agenda. This guardian has limited me to 1 day a week visitation and she wants to limit me more. In my opinion and everyone I tell the story to the guardian she be removed. I don’t know how these people can live with theirselves, they have no compassion on some dear elderly people. It’s not enough that she spent all our mother’s money, get rid of most of her belongings, sold her house, got rid of her dog, she won’t let her live with me. THIS IS LEGAL! Everyone involved in this should go to prison.
I am my mother’s guardian.
My mom was healthy and self sufficient before being exploited by doctors and two hospitals who left her totally incapacitated. I think they were planning to petition for guardianship had I not shown up and contacted a Senator and a Congressman in the state of Pennsylvania to get her out of the state and bring her to Ohio. If that is not bad enough the hospitals she was at have put something in her records that prevent her from getting the care she needs and has allowed all subsequent health care providers and hospitals to continue to exploit her and I can’t seem to find anyone to help me help her.
Then there is her $ bank that for some reason does not seem to give a hoot about the court order. They claimed they got a Death entry notice indicating she died 12/31/2011. They refuse to provide me any further information on her checking account. She was having a survivor benefit being directly deposited into the account it may still be going into the account for all I know. For some reason they can’t produce the DNE or my mother’s statement with June 1 on it. For all I know they are collecting on insurance policies for her and her survivor benefit.
Then there is her landlord. I did file with the Penn. Attorney general that says there is sufficient evidence to sue the landlord for her stupid nonsense. I have two years to do this. Right now I am more concerned about getting her the medical care she needs. I could be wrong but it appears to me that every hospital or health care facility she goes to wants to keep her and collect as much insurance as they can and then send her someplace to die.
I get calls about her debts but no one seems to be able or willing to validate the debts. I get calls from people trying to get her SS # and other personal information.
In short all of us guardians are not bad. To me it looks like there are a bunch of bad vultures circling my mom.
I don’t know what the right answer is but I hope things get better for you and your mom.