(By a NASGA member)
It’s not very often that we hear of victims of guardianship and conservatorship escaping from their sentences, but we’ve just seen the Chism victory in Michigan – he came out alive. Recently, there was a decision by the Second Circuit Court of Appeals on a Connecticut case that a court-appointed attorney and a conservator involved in an elderly man’s improper conservatorship were not entitled to absolute federal quasi-judicial immunity and can be sued. Unfortunately, Daniel Gross died before he could enjoy that victory, but his daughter, Dee King, will pursue it.
On our website we ask “Who’s to Blame” – and the list is long. However, as we’ve been learning more and more over time, the greatest share of blame lies with the judges and their blatant violation of law on several issues:
(1) The first requirement of due process of law is notice. A judge must first look to his/her jurisdiction. After a petition is filed, and if it has slipped by the court clerk without proof of service on all parties, then the judge is to blame if he/she proceeds with the case, without personal jurisdiction. Due process requires both sides of a case to be noticed and present. “Both sides” means the victim and his/her relatives should have prior notice of a petition having been filed. If there is no due process notice prior to an adjudication of incompetency, such an order should be vacated, as void. But will the “tag team” players raise that issue? Not if they’re looking to land another lucrative guardianship! And how can the victims (non-noticed “respondents”) hire a lawyer if their assets are suddenly no longer under their control, having already been confiscated by a judge and turned over to a court-appointed guardian or conservator, without due process of law?
(2) The second element of constitutional due process is “opportunity” – opportunity for both sides to participate in a hearing, which must be fair and impartial. With the growth of so-called “emergency” petitions, there is total violation of rights if an adjudication is made based on an ex-parte “hearing.” Mere conclusory allegations contained in a petition heard ex-parte do not constitute evidence. The legislators are to blame if they don’t fix that growing problem.
(3) The third element, “fair and impartial,” means that both sides should be present and participating and the judge should be fair and impartial. Really? Not in the guardianship game!
(4) Next comes the statutory evidentiary requirement for guardianship and conservatorship cases in most states. In making findings, a judge must follow the “clear and convincing” standard and recite such in the order of adjudication. Those critical words are necessary to support findings, if any – and there are occasions when there are no specific findings!
(5) Having once signed an order committing a vulnerable person to a lifetime in “protection” jail, stripped of all rights including the right to complain, is the judge off the hook? Not yet, he/she is responsible for what the appointed fiduciaries are doing. Many judges fail to monitor their cases. Many “conservators,” failing to conserve the ward’s assets, simply help themselves to them without seeking court authority for payment. And many judges, even if authority is sought, don’t bother to examine the billings, merely rubberstamping their approval.
The offices of court administration are also to blame for lack of monitoring of what their judges are doing.
And where is law enforcement in this? Generally not interested, but maybe they’re waking up! The FBI has just raided a Georgia probate judge’s records and confiscated them all. We anxiously await further news on this exciting issue.
And then there is the public interest. Protective statutes are promulgated in the public interest, and the public must know what’s going on in the courts! Operating under color of law and cloak of darkness is an invitation for rape and plunder by professional fiduciaries (“persons of trust”?).
Excessive sealing of court records in these “protection” cases is unnecessary other than to remove critical personal information. The Chicago Tribune recently had an article on judge’s sealing of all kinds of cases. That should not be allowed, other than to remove critical personal data.
There must be open records so the public knows what’s going on behind the black wall, especially at election time.
Retired Chiropractor Returns to Being a Free Man
Elderly Man Can Sue Conservator, Attorney for Nursing Home Stay
NASGA: Who’s Really to Blame?