May 30, 2013 § Leave a comment
Guardianship Abuse – HALT
Initial Research and Writing for this paper submitted by Carlos Ramos-Mrosovsky, Harvard Law School, Cambridge, MA.
Each year thousands of Americans are placed under the supervision of court-appointed guardians. Guardianships are sought for individuals (called wards) who are considered legally incompetent to make decisions for themselves. HALT research shows that the nation’s guardianship system offers few procedural protections, and has spawned a profit-driven professional guardianship industry that often enriches itself at the expense of society’s most vulnerable members—the elderly. Yet despite numerous calls for reform, most states have done little to monitor professional guardians and prevent abuse. This issue brief points to emerging reform strategies for dealing with professional guardians and other problems currently plaguing the nation’s guardianship system.
How the System is Supposed to Work
Guardianship proceedings, when conducted properly, offer much-needed protection for adults who can no longer take care of themselves. Most guardianship cases begin with the filing of a petition for guardianship, in which the person seeking to be appointed as guardian tells the court why the proposed ward is incompetent and why his or her appointment as guardian would be in that person’s best interests. Family members, friends, social service agencies, attorneys and even for-profit entrepreneurs may petition to be named as guardian.
Before a guardian is appointed, the court must determine whether the proposed ward is actually incompetent. Guardianship laws provide some safeguards against mistaken incompetency declarations. Proposed wards have a right to receive notice of a guardianship petition, to be present at the hearing, to be represented by a lawyer and to present evidence of their ability to take care of themselves. In many jurisdictions, a court investigator may furnish an independent assessment of the ward to the judge. Finally, the law presumes that guardianship is a last resort, and that it should be used only when an impaired person’s needs cannot be met in some less intrusive manner. The principle of limited guardianship requires that a guardian only be granted the powers that are necessitated by a particular ward’s condition.
Those seeking appointment as guardians carry the burden of proving the proposed ward’s incompetence. However, the standard of proof that the petitioner for guardianship has to show the court varies by jurisdiction. In some states, courts require petitioners to submit clear and convincing evidence of a ward’s incapacity, while other states only require a petitioner to show only that the proposed ward is more than likely not competent to manage his own affairs.
A guardianship terminates only when the ward dies or the court rules that there is good reason to reconsider the arrangement such as the ward regaining a marked degree of competence, the guardian spending down the ward’s entire estate until it is no longer able to pay bills, or misconduct on the part of the court-appointed guardian.
Few Procedural Protections. Despite what the law says, in reality few of these safeguards are actually practiced in the courtroom. Many jurisdictions do not require courts to appoint a lawyer to represent proposed wards that cannot afford an attorney, or even require that the proposed ward be present for the hearing.
Discretion in making competency determinations and guardianship appointments rests in the hands of the presiding judge. Sadly, daily exposure to the woes of the elderly influences the attitudes of many judges, and they may presume the incompetence of proposed wards even though the law requires the opposite. Judges may similarly find it easier to give a guardian complete powers over a ward despite the principle of limited guardianship. In 2008, the Boston Globe found numerous instances of judges appointing guardians based on inadequate medical documentation of incompetency, including a six word diagnosis in one case.
Judges who preside over guardianship cases are usually responsible for very heavy caseloads, and many cut corners to move cases along. They may justify doing so because guardianship proceedings are supposed to be non-adversarial. All the parties are assumed to have the same, rather than conflicting, interests—the protection of the proposed ward. In addition, the obligation of the attorney who represents a proposed ward in non-adversarial guardianship proceedings is to serve the client’s best interests rather than to follow the client’s instructions or wishes. Court-appointed attorneys, who may be as over-burdened as judges, therefore will often simply consent to guardianship after quickly assessing a client, thus waiving normal procedural protections.
Many states also allow the court to appoint an “emergency” guardian without so much as prior notice to the proposed ward if it agrees with the petitioner seeking guardianship that delay would likely result in harm to the ward’s health, safety or welfare. Although such arrangements are meant to be temporary, once an emergency guardianship has been established it is usually very easy for the guardian to argue for a permanent guardianship.
A Profit-Driven and Poorly Regulated Guardianship Industry.
Although family members are usually given a statutory preference, a court can appoint anyone to be a guardian. Because of burgeoning case loads, courts have come to rely increasingly on for-profit “professional” guardians. Guardians are allowed to be compensated from their wards’ accounts for the services they provide, and many have seized the economic opportunity presented by the incapacity of others by making a business of acting as a guardian. Although there are few reliable numbers, the guardianship industry is growing. In 2005, for example, at least 15 percent of guardianship cases in Southern California were handled by professionals.
Professional guardians, however honest, act principally out of economic motives and not from affection or family obligation. They secure business by cultivating relationships with doctors, hospitals, lawyers, courts and government agencies responsible for the elderly. Because professional guardians are repeat participants in the guardianship system, some can manipulate the system to a ward’s disadvantage. For example, professional guardians frequently invoke the procedural loopholes of the emergency guardianship as a tactic for gaining control over a ward’s rights and assets. According to the Los Angeles Times, more than half of all guardianship petitions filed by professionals guardians in Southern California between 1997 and 2003 were granted by the courts on an emergency basis. Of these emergency appointments, 56 percent were granted without notice to the proposed ward, 64 percent before an attorney was selected to represent the ward, and a stunning 92 percent before an otherwise mandatory court investigator’s report.
Although many are lawyers, almost anyone can become a professional guardian. The industry is extremely poorly regulated and few states require licensing or training. As one professional guardian admitted, “I could be a shoe salesman at a five and dime store one day and a professional guardian the next.”
A System Plagued by Abuse. Reports of guardianship abuse from government agencies and the media have become alarmingly common. The most common kind of abuse is simple pilfering of a ward’s assets. Guardians who do not steal outright from their ward’s account may slowly drain a ward’s life savings by charging exorbitant fees for mundane tasks. Guardians may charge wards hundreds of dollars for having a bag of groceries delivered or towing a car, and some have even reportedly billed a deceased ward’s estate for attending the ward’s funeral. Other common examples of abuse include placing wards in nursing homes against their will, selling property without permission and blocking contact with loved ones.
There is no shortage of horror stories. In a case documented by the Washington Post, the guardian of a well-to-do widow suffering from dementia plundered her estate and let the IRS execute a tax lien on her home. The ward, left homeless, slept in abandoned buildings, while her guardian informed the court that she “preferred to reside in city shelters.” A U.S. Government Accountability Office report detailed similar outrages, including one instance in which a private guardianship firm was found to have committed felonies against more than 600 of its incapacitated wards, going so far as to sell one ward’s home to an employee’s relative for $500.
The number of Americans in guardianship will continue to grow as the U.S. population ages over the coming decade. The incidence of guardianship abuse is likely to increase along with the total number of guardianships.
Poor Record-Keeping and Oversight. The rampant abuse of incapacitated wards by unscrupulous professional guardians persists because sloppy supervision by court officials makes it difficult to detect exploitation and mismanagement. According to the American Bar Association, in more than one quarter of all courts nationwide, guardians do not have to file annual reports on a ward’s personal status. Nearly 20 percent do not require annual accountings of a ward’s finances. Among courts that do collect such information, more than one third do not have an official who is designated to verify the content of the guardians’ reports, and less than 20 percent verify every report. In more than 40 percent of courts, no one is assigned to visit individuals under guardianship. Nearly 75 percent of America’s courts do not have a computerized data system to track guardianship cases and identify problems.
The failure of courts to provide adequate supervision has predictable consequences. For example, nearly half of the guardianship reports required under District of Columbia law were filed at least a year late between 1995 and 2000. From 2003 through 2007, there were no financial reports filed in 85 percent of the guardianship cases in Suffolk County, Massachusetts. Even when a guardian makes a report to the court, lax standards of review allows courts to overlook warning signs. A Los Angeles Times investigation similarly uncovered numerous instances of egregious abuse by guardians where evidence of abuse was already in the courts’ own files; most county courts in Southern California ignored an online registry created to identify and track problem guardianships. And gross overbilling often occurred with the explicit approval of probate judges, who must sign off on guardians’ expenditures in most jurisdictions. A Houston Chronicle investigation found that the court routinely allowed guardians to charge their hourly rates typical for legal work when performing even the simplest nonlegal tasks.
Thin budgets and understaffing account to some extent for the inadequate supervision of guardianship appointments. According to the ABA, 43 percent of courts have insufficient funds available to implement effective guardianship oversight, and nearly a third have no specific funding stream for guardianship monitoring.
Even worse, some judges may be more concerned with protecting guardians than wards. In many guardianship systems, a tight-knit network of judges, lawyers and professional guardians (many of whom are also lawyers) routinely interact with one another. According to the Washington Post, one guardian who was removed from the District of Columbia’s guardian appointment list several times for failing to appear at hearings continued to receive new assignments from judges who simply by-passed the official list; even though she was remiss in many of her duties, this one woman’s caseload accounted for a whopping 15 percent of all guardianships in the District. In a revealing interview, a former chief probate judge defended the D.C. court’s practice of continuing to appoint as guardians those attorneys who had been the subject of frequent complaints, stating, “You have to be careful about barring someone from cases. It may be the lawyer’s only source of practice.”
Reforming the Guardianship System
Public uproar over the rampant abuse of incapacitated adults at the hands of profit-driven professional guardians has spurred efforts to reform guardianship systems in some states. HALT has identified some of the promising reform strategies, including mandatory training and licensing of for-profit guardians, adopting detailed standards of conduct for guardians that may be grounds for disciplinary action, providing thorough review of all court-mandated reports on the status of wards, requiring periodic visits to wards and their guardians, establishing compensation guidelines and restricted accounts for guardians, notifying wards of the right to file for restoration of rights, reforming the procedures for emergency guardianships, and establishing independent regulatory bodies with disciplinary authority.
Regulating the Professional Guardianship Industry. Alaska, Arizona, Florida, Texas, Washington and a handful of other states have established procedures for the licensing or certification of for-profit guardians by the courts, each mandating strict training and other requirements. For example, would-be professional guardians in Washington State must attend a two-day class that covers the responsibilities and limitations of guardianship, the process of completing required records, and ethical questions that may arise. Some jurisdictions in Florida require professional guardians to devote up to 48 hours to similar training, and the state recently installed the toughest licensing exam for prospective guardians in the country. Alaska requires that professional guardians be certified by a nationally recognized organization such as the Center for Guardianship Certification, a process that includes passing an examination on the duties of a guardian, meeting general educational requirements, and having a clean criminal record and history of performance as a guardian.
Adopting Standards of Conduct for Guardians. In 2001, the Second National Guardianship Conference, the “Wingspan Conference,” recommended that all states establish minimum standards of good practice for guardians. Unambiguous standards of conduct that enumerate a guardian’s ethical and professional obligations toward the ward leave professional guardians in little doubt as to actions that would constitute misconduct. Arizona and Washington are among the small number of states that have articulated detailed conduct standards for guardians that go beyond a brief list of duties in a governing statute.
Unfortunately, awareness of standards of practice is not enough to ensure that they are obeyed. States must make it clear that conduct will be measured by such standards in disciplinary processes. In Washington State, for example, disciplinary regulations expressly declare that a violation of the standards of practice constitutes grounds for disciplinary action.
Improving Court Monitoring and Enforcement. A 2007 AARP Public Policy Institute report cited exemplary jurisdictions in Arizona, Texas and Minnesota that actively utilized computerized management of guardianship cases. Computer systems automatically notify court officials and guardians when status reports on the care of wards are due; some systems also alert officials of needed action if the required report is not received. In Maricopa County, Arizona, an overdue report results first in an order of noncompliance, then an order to show cause, and finally, an arrest warrant.
Other jurisdictions perform multiple levels of review on reports submitted by guardians. For example, a state statute in Florida requires that courts clerks review every guardianship status report to ensure that the appropriate information is provided, and a court program in Hillsborough County employs two full-time counselors who scrutinize all plans and accountings in addition to the initial audit performed by the court clerk.
Another promising approach to improving guardianship monitoring is the use of investigators, either professional or volunteer, to periodically visit wards and their guardians and recommend follow-up actions to the court. Visitor programs have been implemented in jurisdictions in Arizona, Idaho, and Texas, among others.
Establishing Compensation Guidelines and Restricted Accounts for Guardians. In many states, professionals are supposed to receive approval from the court of the monies that they charge wards for providing guardianship services. However, judges oftentimes turn a blind eye to questionable billing practices. In Harris County, Texas, the probate court recently instituted strict standards for reviewing guardians’ bills, barring attorney guardians from charging legal rates to complete nonlegal work and capping fees for legal work.
Other innovative states, including Arizona, protect ward assets through restricted investment accounts that cannot be accessed by the guardian without a specific court order.
Revising the Procedures for Emergency Guardianships. Emergency placements are prone to abuse by the professional guardianship industry. In Texas, proposed wards must be given notice of emergency guardianship proceedings, with no exception, and must be assigned attorneys before the court rules on their cases. California also recently adopted protective legislation for proposed wards, requiring timely investigation of all emergency guardianships, interviews with all interested parties, and notice to the proposed ward of his or her legal rights. However, the Governor has indefinitely delayed funding for these reforms.
Notifying Wards of the Right to File for Restoration of Rights. In Hennepin County, Minnesota, the guardian must notify the ward annually of his right to seek a restoration of rights. Since some incapacitating conditions may improve or resolve completely, it is critical that the ward be notified that he may seek to limit the scope of the guardianship or have it dismissed altogether. The court may ensure that this notification occurs by requiring the guardian to file a proof of the notice.
Establishing Regulatory Bodies and Disciplinary Mechanisms. When allegations of abuse by a professional guardian are brought to the attention of the court, a very few states, including Arizona, New York and Washington, have an official individual or entity within the judicial system that is responsible for following up on complaints and taking disciplinary action, where appropriate, against the guardian.
Many scholars and elder-rights advocates want states to go further in protecting wards and have proposed independent ombudsman programs for individuals in guardianship. Similar to the ombudsman for long-term care that is required in each state, these programs would educate the public, assist in resolving complaints, and advocate on behalf of incapacitated individuals.
The nation’s guardianship system was designed to help family members take care of their loved ones. While the system works well for some, too many seniors are suffering at the hands of unscrupulous professional guardians who swiftly take control of seniors’ lives often without their knowledge or consent.
States must strengthen procedural protections and improve guardianship oversight to stop these abuses. To be successful, reforms of state guardianship systems must be accompanied by an adequate commitment of resources by courts, legislatures and governors. Americans should not have to fear the very system set up to protect them should they become incapacitated and vulnerable.
Fields, Robin, Evelyn Larrubia and Jack Leonard. “Guardians for Profit.” Los Angeles Times (November 13-16, 2005).
Fields, Robin et al. “State Could Turn Elsewhere for Conservatorship Remedies.” Los Angeles Times (December 27, 2005).
Leonnig, Carol D., Lena H. Sun and Sarah Cohen. “Misplaced Trust: Special Report.” The Washington Post (June 15-16, 2003).
Yeoman, Barry. “Stolen Lives.” AARP: The Magazine (January-February 2004).
Olsen, Lise. “The Pain of Probate Court.” The Houston Chronicle (June 24-25, 2007).
Olsen, Lise. “New Payment Guidelines Ease Strain Probate Fees Put on Elderly, Disabled.” The Houston Chronicle (September 4, 2007).
Kelly, Jeff, Maggie Kowalski and Candice Novak. “Courts Strip Elders of Their Independence.” The Boston Globe (January 13, 2008).
Armstrong, Dr. Diane G. The Retirement Nightmare: How to Save Yourself from Your Heirs and Protectors. Prometheus Books (2000).
Uniform Guardianship and Protective Proceedings Act (1997) drafted by the National Conference of Commissioners on Uniform State Laws.
Karp, Naomi and Erica F. Wood. Guarding the Guardians: Promising Practices for Court Monitoring. AARP Public Policy Institute (2007).
Karp, Naomi and Erica F. Wood. Guardianship Monitoring: A National Survey of Court Practices. American Bar Association Commission on Law and Aging (2006).
Wood, Erica F. State-Level Adult Guardianship Data: An Exploratory Survey.
American Bar Association Commission on Law and Aging (2006)
U. S. Government Accountability Office. Guardianships: Collaboration Needed to Protect Incapacitated Elderly People. Report to the Chairman, Special Committee on Aging, U.S. Senate. GAO-04-655 (2004).
National Academy of Elder Law Attorneys, National Guardianship Association and National College of Probate Judges. National Wingspan Implementation Session: Action Steps on Adult Guardianship Progress. National Guardianship Network (2004).
U.S. Government Accountability Office. Guardianships: Little Progress in Ensuring Protection for Incapacitated Elderly People. Testimony of Barbara D. Bovbjerg, Director Education, Workforce and Income Security, before the Special
Committee on Aging, U.S. Senate. No. GAO-06-1086T (2006).
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welcome to or judicial system it sucks they do this all over to all old people to steal their money scumbags.
May 30, 2013 § Leave a comment
Citizen’s Legal Guide – HALT
Guardians & Guardianships: A Primer
Imagine what life would be like if you couldn’t go to the doctor, pay your gas bill, or live in your home without another person’s permission. Imagine if a stranger appointed by a court could move you into a nursing home against your will, sell your house, choose your doctor, spend your money and even rewrite your will. Imagine if that person were able to stop your family members from visiting you and could consent to or refuse medical procedures in your name.
As scary as this sounds, this is daily life for the hundreds of thousands of Americans who have been declared incapable of handling their own affairs and placed under the supervision of court appointed guardians. Although guardianship is a valuable institution that can help protect those who are no longer able to protect themselves, it is also a system that is uniquely open to abuse. Guardianship places one adult’s rights in another’s hands, and most states do little to monitor these arrangements.
This Citizens Legal Guide offers basic facts about how the guardianship system works and provides information that can help you protect yourself and your loved ones. If you are involved in an unwanted guardianship, we recommend finding out what the guardianship laws are in your state either at your local law library or by visiting http://www.retirementnightmare.com which includes a summary of the state codes and statutes nationwide.
What Is a Guardian?
A guardian is a person appointed by a court to make important decisions on behalf of someone (called a ward) who is unable to make responsible decisions for him or herself. With baby boomers aging and Alzheimer’s cases increasing, a loss of capacity is a real prospect for many of us. If you are smart, you will plan ahead and create documents like a durable power of attorney that provide direction for the management of your money and your physical care. Even if you have a loving and supportive family that is ready to help, it is important to identify who exactly will be in charge of your affairs—and who will step in as a substitute if your original selection is no longer available. If you do not plan ahead in this way, a professional guardian could be appointed who views you as just one of many “cases” that need to be handled.
Once appointed, a guardian’s authority over you is similar to that of a parent over a minor child. Like a parent, a guardian normally has the last word and has the duty to act in your best interests, as the guardian understands it. A court may appoint a guardian to make financial decisions (sometimes known as “conservatorship”), to make intimate personal decisions (“guardianship of the person”) or both. In some states, the term conservatorship refers to all adult guardianship arrangements, whether establishing authority over financial or personal decisions. The law allows a guardian to decide how your money will be spent, what doctors you will see, what medical treatments you will receive, and whether you will live in your own house or in a nursing home. In some states, a guardian can even modify your will or trust and must approve changes in your marital status.
How Is a Guardian Appointed?
Most guardianship cases begin with the filing of a “petition for guardianship.” This is a request in which the person seeking to be named guardian tells the court why it is necessary. If you do not believe that you need a guardian, or object to the person who is proposing to be your guardian, you can contest the petition for guardianship. A friend or family member can also file papers with the court to formally contest the guardianship petition.
Before a guardian is appointed, the court must hold a hearing to determine whether you are in fact unable to handle your own affairs. Guardianship cases are usually heard by judges in the probate division of state courts. According to the Uniform Guardianship and Protective Proceedings Act, a court can only declare a person incompetent if that person is “unable to receive and evaluate information or make or communicate decisions,” or unable to “meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.” As you can see, this language leaves a great deal of discretion and power in the hands of judges.
The law provides some safeguards against the court mistakenly declaring you incompetent or selecting an undesirable guardian. These are vital because the appointment of a guardian may extinguish all or many of your rights. In most states you have the right to:
• receive notice of a guardianship petition;
• be present at the hearing on your case before a judge;
• be represented by a lawyer (who may be appointed by the court); and
• present evidence of your ability to take care of yourself.
“The principle of limited guardianship, which requires that a guardian “should be appointed only when necessary, only for as long as necessary, and with only those powers as are necessary,” has been adopted in many states.”
While the law presumes that guardianships should only be used as a last resort, the sad truth is that courts can and do bypass almost all the usual procedural safeguards for appointing guardians. One particularly egregious example is the frequently-used “emergency guardianship,” which can be established without so much as notice to the proposed ward if the petitioner claims (and the court determines) that delay would be harmful to the ward’s health, safety or welfare. Courts usually make emergency appointments on the basis of statements and information provided by the person petitioning for guardianship. Although these emergency appointments are supposed to be temporary, they tend to become permanent.
The Messy Reality.
Courts often fall short of their own standards for appointing guardians.
Three common reasons are:
• Judges’ attitudes—Daily exposure to the woes of the elderly and the handicapped leads many judges to presume that all individuals who are the subject of a petition for guardianship are unable to take care of themselves. The judge may view you as incompetent until you are proven competent, even though the law requires the opposite. Similarly, a judge may find it easier to give a guardian complete powers over you despite the principle of limited guardianship which encourages tailoring a guardian’s authority to your specific needs and capabilities.
• Heavy caseloads—Judges who preside over guardianship appointments are often responsible for hundreds of cases at a time. Many cut corners and take a relaxed attitude toward procedure in order to move cases along. They may justify doing so because guardianship proceedings are supposed to be “non-adversarial,” meaning that the court assumes that both sides have fundamentally the same interests at heart—your protection and wellbeing.
• Difficulties of finding an advocate—When faced with an unnecessary guardianship petition you may experience feelings of shock, fear and betrayal. It can be difficult to hire a lawyer and prepare for a court hearing under such circumstances. Moreover, if the court appoints a lawyer, he may not be obligated to follow your instructions. A court-appointed attorney’s obligation is often to your “best interests,” not your personal wishes. As over-burdened as judges, court-appointed attorneys may consent to a guardianship and waive the protective procedures that would otherwise apply. One study found that court-appointed attorneys in Florida waived their clients’ right to a hearing in 90 percent of cases.
“To be wrongfully subjected to guardianship may be the greatest loss of rights a person can experience short of being sent to prison. Although you canusually respond to a guardianship petition or challenge an existingguardianship informally, professional representationincreases your chances of being taken seriously by the court.”
Who Can Be a Guardian?
Any adult can petition to become a ward’s guardian. While guardians tend to be family members or trusted friends, attorneys, government officials and even for-profit entrepreneurs may be appointed. Family members usually have priority for appointment as guardians, but judges are free to appoint whomever they believe is best, regardless of family ties.
Because there are more elderly and incapacitated members of society than there are family members to care for them, courts sometimes have to rely on government-run guardianship programs. The problem is, these programs usually lack the funds to care for more than the most desperate cases. In Florida, for example, a 2003 study found that even though more that 22,500 residents needed a guardian; the statewide public guardianship office could care for no more than 1,750. Large caseloads and insufficient funds frequently compromise the quality of care and attention provided by public guardians.
Stepping up to fill the void is an industry of professional, or “for-profit,” guardians. Professional guardians profit because they are allowed, under the law, to be compensated for their services out of their ward’s account. Many professional guardians reap huge sums by managing the lives of hundreds of sick and handicapped adults at once.
Although many are lawyers, almost anyone can become a professional guardian. The industry is poorly regulated, and few states require licensing or training. For-profit guardians drum up business by cultivating relationships with doctors, hospitals, lawyers, courts and government agencies responsible for the elderly or the handicapped. There are few hard numbers, but the guardianship industry is growing.
What Powers Does a Guardian Have?
A guardian’s precise powers vary from state to state. The chart compares powers typically granted to a guardian with parallel restrictions typically imposed on you.
A guardian can…
Spend your money
Be compensated from your assets
Decide where you will live
Bring lawsuits on your behalf
Buy and sell property in your name
Enter into contracts on your behalf
Consent to your medical care
Consent to your marriage
Consent to changes in your will
Make bank withdrawals or sell stock without a guardian’s approval
Refuse to pay a for-profit guardian
Decide where to move without a guardian’s permission
Bring lawsuits without a guardian’s permission
Buy and sell a house or car without a guardian’s permission
Hire or fire a cleaning person or others without a guardian’s permission
Choose doctors without a guardian’s approval, or reject or consent to medical treatment without a guardian’s permission
Divorce without a guardian’s permission
Write a new will without a guardian’s permission
How Can These Powers Be Abused?
A responsible guardian needs these powers to effectively manage your affairs. If you were suffering from dementia and asked to enter into a contract (say, for example, to sell a car you no longer use) you could easily be cheated without a guardian to supervise. Similarly, a guardian needs to be able to protect you from being coerced into making changes to your will when you are very ill.
Unfortunately, guardianship abuse, often but by no means exclusively by for-profit guardians, has become alarmingly common.
The most common kind of guardianship abuse is simple theft. A guardian’s authority to be compensated out of your accounts may become an invitation to embezzlement. In a recent California case, a for-profit conservator whose clients were primarily disabled veterans fleeced more than one million dollars from her wards’ bank accounts. Other guardians may not steal outright, but will charge exorbitant fees for mundane tasks. A professional guardian may charge you hundreds of dollars in hourly fees for having a bag of groceries delivered, or for making brief visits.
Guardianship abuse can be much more extreme, however. An abuser may confine you to a nursing home while pillaging your life savings. He may withhold your food, bar you from leaving your home or block contact with loved ones, sometimes as a punishment. In one case, a for-profit guardianship firm committed felonies against more than 600 of its incapacitated wards, selling at least one person’s home to an employee’s relative for just $500.
DSM V water down bull crap anyone can do any thing with these lacky standards ? dumb keep getting dumber?
May 30, 2013 § Leave a comment
Partner Abuse State of Knowledge Project the Gold Standard of Domestic Violence Information
May 24, 2013 by Robert Franklin, Esq.
It’s perhaps the most important event in the history of domestic violence research. Back in 2010, the senior editor of the journal Partner Abuse asked 42 researchers in the field of intimate partner abuse to conduct a thorough review of existing literature on the subject. All peer reviewed literature from 1990 to the present was examined and over 1,700 studies were included in the final analysis. The scientists divided their inquiry into 17 subject areas and assigned researchers to each. The resulting analyses were published by Partner Abuse between April, 2012 and April, 2013, and together comprise almost 2,700 pages of information including tables. The whole project is called the Partner Abuse State of Knowledge Project (PASK).
The purpose of this massive effort was to once and for all bring sound scientific methods to the field of DV research, one in which sound science has often been sorely lacking. As the introduction makes clear, the authors believe that everyone is entitled to their own opinion, but not their own facts. And it is those facts on which public policy should be based “rather than ideology and special interests.”
That of course is arrant heresy as far as the domestic violence movement is concerned. For decades now, DV activists have substituted political ideology for facts and the scientific method. Unsurprisingly, they’ve been wrong about almost everything they’ve ever said about domestic violence. Like the Cross to a vampire, science has always threatened the domestic violence establishment, its cherished worldview, its fear and loathing of men and ultimately its lavish governmental funding.
PASK should (and well may) prove to be the stake in the heart of what has for far too long been our public policy on intimate partner violence. Simply put, no one who speaks, writes or legislates on the subject should do so without first reading at least the 62-page Overview of Findings, and preferably the whole analysis. PASK is the state of the art on domestic violence.
The project isn’t over. As more research is conducted (hopefully in the areas suggested by the authors) PASK findings will change. And in some areas, there is either not enough data (e.g. injuries to male victims), or the data are inconclusive, so public policy changes aren’t possible. But in most areas of inquiry, the facts are clear and must be used to guide policy makers. To do anything else would be to abandon even the pretense that the goal of public policy is actually the reduction in rates of intimate partner violence.
To be clear, what PASK reveals is that the claims of the domestic violence establishment are wrong and have been from the start. That establishment that receives such largess from governments and private sources has been revealed once and for all to be intellectually bankrupt.
Section One: Rates of Male and Female Victimization. The group studying information in this area analyzed 249 publications comprising over 1 million subjects. They found that, over their lifetimes, about 23% of women reported physical victimization versus 19.3% of men. Those figures will likely converge over time given the fact that more men than women reported victimization over the previous year. Gender symmetry in victimization appeared in aggregated data from numerous different countries including the U.S., Canada, the U.K., New Zealand and South Africa.
As to public policy, the authors stated the obvious:
This comprehensive review… documents the need for gender-inclusive responsiveness to this wide-ranging public health problem. In particular, there are currently few services for male victims and the high rates of violence experienced by women and men suggests a need for treatment and intervention strategies for victims of both sexes.
In other words, the roughly half of all DV victims who are men have nowhere to turn for help, and they need it.
Section Two: Rates of Male and Female Perpetration. The authors studying data in this area analyzed 111 separate data sets comprising about 250,000 subjects. They found that about 25% of those subjects reported perpetrating physical violence against a current partner or one in their last relationship. That represented 28.3% of women and 21.6% of men who perpetrated violence against an intimate partner. Subjects came from across the industrialized, English-speaking world.
The authors note that “gendered explanations of IPV do not adequately account for our findings.” Of course the DV establishment will hasten to say that rates of perpetration of domestic violence don’t deal with the severity of violence, only the incidence.
True, but the authors anticipate that argument.
[F]indings should be used to support the development and implementation of interventions that acknowledge the use of violence by women in intimate relationships but also recognized how participants’ treatment needs may differ.
That is, difference in the severity of domestic violence should no longer be used by the DV establishment as an excuse to deny services to male victims or female perpetrators. Those interventions should be tailored to the needs of those victims and perpetrators.
Section Three: Rates of Bi-Directional and Uni-Directional IPV. In this area, 50 separate studies that recorded rates of bi-directional versus uni-directional violence were analyzed. Researchers found that, in the largest samples studied, among couples reporting domestic violence, 57.9% reported reciprocal or bi-directional violence with the remainder, 42.1% reporting uni-directional violence. In the uni-directional group, women were over twice as likely (28.3%) to perpetrate violence as were men (13.8%).
Smaller samples revealed similar rates of bi-directional violence but community surveys showed 22.9% of women versus 17.5% of men perpetrating uni-directional violence. Among subjects in high school and college, 31.9% of women perpetrated uni-directional violence versus 16.2% of men.
Only in the sample of U.S. military personnel and “at-risk” males did men’s (43.4%) uni-directional violence rates outstrip those of women (17.3%).
The researchers make clear that, in all samples, the salient feature is the prevalence of bi-directional IPV. That means that, if a doctor, hospital or any other reporter finds evidence of domestic violence victimization, the chance of DV perpetration by the same person is good. Rates of bi-directional IPV among gay men and lesbian women didn’t differ significantly from those of heterosexual couples.
Likewise, rates of bi-directional DV were almost identical for white and Hispanic couples, i.e. about 50% for each. African-American couples on the other hand reported a rate of about 62% bi-directional IPV. The ratio of female-on-male/male-on-female uni-directional IPV was 2.27 for African-Americans, 2.26 for whites and 1.34 for Hispanic couples.
I’ll write more about this valuable body of work at a later time.
The National Parents Organization is a Shared Parenting Organization
The National Parents Organization is a non-profit organization that is educating the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents and extended families. If you would like to get involved in our organization, you can do so several ways. First, we would love to have you as an official member of the National Parents Organization team. Second, the National Parents Organization is an organization that believes in the importance of using social media as a means to spread the word about shared parenting and other topics, and you can visit us on our Facebook Page to learn more about our efforts. Last, we hope you will share this article with other families using the many social networking sites so that we can bring about greater awareness of shared parenting. Thank you for your support.
May 29, 2013 § Leave a comment
Analytical Review of HB2992
1. What is “Right of First Refusal”?
Right of first refusal is a guarantee that anytime the other parent needs someone to watch the children, they must ask the other parent first. This gives parents the opportunity to watch the children when the other parent has them.
The court is given the maximum discretion in determining if “Right of First Refusal” is in the child’s best interest. Once determined the court issues an order that includes provisions regarding a) what would trigger the invocation of right of first refusal, such as the length of time the parent will be away from the child, b) how much advance notice the parent with the child must give the other parent, c) the amount of time by which that parent must respond, and d) transportation requirements.
2 How Does “Right of First Refusal” Work?
Instead of calling a babysitter when a parent who has the children wants to go out, the parent calls the other parent first and gives them the right to first refuse the children. So, let’s say as an example, the mother of two little boys needs to go on a two day business trip during the week when she has custody. Instead of calling her parents to watch the children, she must first call the boys’ father and give him the right to have the two days with the children. If he refuses, then she can find someone else to watch them. It is the responsibility of the parent with the children to notify the other parent no later than 24 hours from the time of first learning of the need to leave the children. It is the responsibility of the other parent to respond within 24 hours of notification. It is the responsibility of parent with the additional parenting time to provide all transportation.
3. Why “Right of First Refusal”?
The right of first refusal custody provision can help give additional substance to § 602(c) of the Illinois Marriage and Dissolution of Marriage Act in that the court shall presume that the maximum involvement and cooperation of both parents is in the best interest of the child. It allows children to be with their parents rather than with other people for extended periods of time.
4. Is there supporting IL Case Law?
In Re: the Marriage of TINA MARIE DOBEY, Petitioner-Appellee, v. MATTHEW L.DOBEY, Respondent-Appellant.
APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
258 Ill. App. 3d 874; 629 N.E.2d 812; 1994 Ill. App. LEXIS 185; 196 Ill. Dec. 267
The pertinent parts are:
OVERVIEW: Allowing the father daytime visitation in place of the child’s babysitter during the weeks he was home took into account the mother’s concerns about joint custody, while giving the father the more continuous presence he sought in the child’s life. [HN3] When a court designates one parent as the custodial parent, that designation does not and should not deprive the noncustodial parent of all rights and privileges as a parent. As § 602(c) of the Illinois Marriage and Dissolution of Marriage Act provides, the court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional wellbeing of their child is in the best interest of the child. Ill. Rev. Stat. ch.40, para. 602(c) (1991). Further, the custodial parent has the duty to strengthen and nurture in every way possible the relationship between the children and their noncustodial parent. The court sees this is as a way of maximizing the involvement of parents with their children without disrupting current custodial arrangements.
5. Do other states have similar statutes?
Indiana Parenting Time Guidelines: Section I(C)(3):
(3) Opportunity for Additional Parenting Time. When it becomes necessary that a child be cared for by a
person other than a parent or a responsible household family member, the parent needing the child care
shall first offer the other parent the opportunity for additional parenting time., if providing the child care
by the other parent is practical considering the time available and the distance between residences. The
other parent is under no obligation to provide the child care. If the other parent elects to provide this care,
it shall be done at no cost. and without effecting child support. The parent exercising additional parenting
time shall provide the necessary transportation unless the parties otherwise agree.
The rule providing for opportunities for additional parenting time promotes the concept that a child receives greater benefit from being with a parent rather than a child care provider. who is not a household family member. It is also intended to be practical. When a parent’s work schedule or other regular recurring activities require hiring or arranging for a child care provider, who is not a household family member, the other parent should be given the opportunity to provide the care. Distance, transportation or time may make the rule impractical. The period of absence which triggers the exchange will vary depending upon the circumstances of the parties. Parents should agree on the amount of child care time and the circumstances that require the offer be made. It is presumed that this rule applies in all cases which the guidelines cover; however, the parties or a trial court may, within discretion, determine that a deviation is necessary or appropriate. Any such deviation must be accompanied by a written explanation. See Shelton v. Shelton, 840 N.E.2d 835 (Ind. 2006)
UTAH CODE ANNOTATED
*** Statutes Current through the 2012 Fourth Special Session. ***
TITLE 30. HUSBAND AND WIFE CHAPTER 3. DIVORCE
Utah Code Ann. § 30-3-33 (2012)
(15) Parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the noncustodial parent, if willing and able to transport the children, to provide the child care. Child care arrangements existing during the marriage are preferred as are child care arrangements with nominal or no charge.
(16) Each parent shall provide all surrogate care providers with the name, current address, and telephone number of the other parent and shall provide the noncustodial parent with the name, current address, and telephone number of all surrogate care providers unless the court for good cause orders otherwise.
6. What if the parents live far apart?
The provisions of the bill clearly state that this bill would not apply when time constraints, distance, and availability of transportation make the offering of additional parenting time impractical. It is the responsibility of the parents with the help of the court to set these parameters.
7. What if step-parents or grandparents are nearby?
The involvement of third-parties, such as step-parents and grandparents, in the life of a child can be in the child’s best interest, and is certainly welcomed. Current statutes allow third-parties to petition for visitation (§ 607(a-5) (1) and § 607(a-7) (1.5)). However, they are not substitutes for the child’s natural parents. This is the policy of the state inasmuch that it is “presumed to be in the best interest of the minor child that the natural parent have custody of the minor child…”, and that “the dissolution of a marriage….shall not diminish parental powers, rights, and responsibilities…” (§ 602(a) and § 602.1(a)).
The US Supreme Court makes this very clear in Troxel v. Granville, 530 U.S. 57 (2000) where it states that “the interest of parents in the care, custody and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court.”. According to Troxel, third-parties interest do not trump over parental rights. This even applies to step-parents and grandparents.
It is in the child’s best interest to maintain a strong bond with both parents. The presence of a step-parent doesn’t insure stability. The divorce rate among step-families is even higher than among originally intact families. There is a weaker sense of attachment between the child and step-parent. Sexual abuse is higher among step-parents than with natural parents. The step-parent has no legal obligations to the child after the relationship with the child’s parent dissolves.
It is only by insuring a meaningful relationship between the child and the natural parent do we see greater child support compliance and greater contributions when the child reaches majority age. Also we see greater support by the child to aging parents. This helps alleviate the State from shouldering such burdens.
8. What if a parent has restricted visitation?
The bill only applies if the parent has unrestricted time with the child (reasonable visitation) as defined in § 607(a) and § 607(c). Such time is unsupervised visitation. An order limiting, denying or terminating visitation would make that parent ineligible for right of first refusal. Supervised visitation is considered restricted visitation, and therefore the parent would also be ineligible.
9. How is “Right of First Refusal” Enforced?
The provisions of the bill are enforceable under § 607.1: Enforcement of visitation orders; visitation abuse.
HB2992 goes far in supporting the maximum involvement of both parents to the wellbeing of a child. It can encourage even greater cooperation among parents in that the other parent must be considered as an integral part of the child’s life.
May 29, 2013 § Leave a comment
May 28th was another big day for Illinois Fathers, and more importantly for a member Father and his child. Member Steven Westerfield was in a difficult situation with his Supervised Visits taking place at the home of his ex in-laws. This was a difficult environment to put it mildly and I’m sure that many of the readers would find that kind of an arrangement difficult as well. Member Bill Spencer volunteered to act as a Supervisor for Steven’s visits, and Bill’s charitable act was not only accepted by the Judge, but the Judge actually complemented Bill as well as our entire group for our volunteer efforts. Steven’s supervised visits will now take place at a neutral location. A big thankyou goes out to member Bill Spencer for volunteering his time.
If you have thought about stepping forward to help out another parent who has this kind of situation, please do not be shy. Send us an e-mail at firstname.lastname@example.org and we would very much like to talk with you.
On Friday May 31st, Illinois Father’s Board Member Michael Ragan has a court date in the Peoria County Courthouse, Room# 213 at 9 45 am. Michael is asking for fellow members to court watch on his behalf if at all possible. If you would first like to contact Michael email@example.com or 309/231-5098.
Lastly, if you need our help, do not hesitate to ask. This group can proudly state that we have changed lives in a small way for at least a few parents and children in the State of Illinois.
Please consider getting more involved in Illinois Fathers.
May 29, 2013 § Leave a comment
Parental Alienation Global Directory
It can be so difficult to just do the things that ‘normal’ parents do when you are dealing with an HCP (high-conflict person) or an A/P (alienating parent). Even what should be the simplest of communication is fraught we anxiety for the NCP (non-custodial parents) as we try and find ways to keep the peace with a person who simply won’t have it. I am convinced that many alienated parents suffer from a post-traumatic stress disorder from the stress of the ongoing conflict. It is brutal, so damaging to our spirits, minds and bodies. And how can we blame parents who just cannot find the strength to match the tenacity of the AP? How could we possibly sit in judgement on those who just literally cannot take it anymore and must retreat from the onslaught of emotional abuse and manipulation? Sometimes letting go is the only way to save yourself. Parents, don’t be so hard on yourself if you are considering this. It doesn’t mean you don’t love your children, it means you know the value of your own well-being. It is not being selfish, it is not ‘giving up’ but rather, it is giving in to loving yourself and knowing in your heart that unless you are whole and healthy you have nothing to offer.