The authors are NOT acting as attorneys by giving this advice.
|Supported Decision Making
with a new, BI-PARTISAN approach to
guardianship and conservatorship-
and escaping from it when it goes horribly wrong
We've seen that a corrupt judge and guardian will do that. Our version says that the right of self-determination is inherent in the US Constitution and allows a person to set up Supported Decision Making automatically -if they so desire. The court cannot stop that in my version unless a medical/psychatric opinion based on a full evaluation shows that the person is so unconscious or crazy that they are likely to kill themself or someone else. Why? Because when you open the door to taking away rights, you encourage and enable vulnerability and exploitation/abuse. You actually make vulnerable persons MORE vulnerable and helpless, which is the OPPOSITE of what guardianship says it is there to do. So often this becomes exactly what guardianship DOES. Innocent people are drawn into the system and robbed.
Informal Comparison between the Florida Bills and the
BOBBIE ASPLUND SUPPORTIVE DECISION MAKING LAW
SUPPORTING DOCUMENTS TO LEARN THE BACKGROUND
-The RESOURCES PAGE-
THIS PAGE PRESENTS A NEW APPROACH TO PROTECTING VULNERABLE PERSONS, WHILE STILL PROVIDING ALL NECESSARY PROTECTIONS AND ACCOMMODATING ALL OF THEIR SPECIAL NEEDS. IT'S CALLED THE
BOBBIE ASPLUND SUPPORTIVE DECISION MAKING LAW
-A HEALTH CARE LEGISLATIVE PROPOSAL
This Federal Law proposal has been shown to legislators, attorneys, and victims across the United States and is getting very approving reviews.
Here's what it does:
*It provides a path for Supported Decision Making.
*It lays it right down on top of existing State Laws as an “escape clause.”
in case a guardianship or conservatorship becomes exploitative or abusive.
*It makes vulnerable persons less vulnerable by affirming their Constitutional Rights rather than taking those rights away and making them powerless.
*It takes most of the power away from the courts, which saves time and money.
*It forces states to comport with the US Constitution, thus supporting YOUR Constitutional rights.
*It takes away the prize that temps fiduciaries to be crooks.
It costs almost nothing to implement.
In other words: It is a win on all levels-
(unless you are a crook!)
So what's the point?
What is needed is:
An Escape Clause
A direct, specific checklist of powers that are to be shared
A high bar to remove your self-determination rights which must be documented by a doctor, not a judge who has no psychological or medical expertise/qualification
The system must also ensure the vulnerable person is best protected from exploitation and abuse, and sometimes even harm from them self (including their own inabilities or negligence due to infirmity).
Supportive Decision Making is the answer.
Any rational person wants to get by and survive. Any human being who embraces that desire doesn't need a guardian or conservator.
And bonus- you don't have to waste valueable time and money with lawyers and the court. Justice delayed is justice denied.
We all need:
BOBBIE ASPLUND SUPPORTIVE DECISION MAKING LAW
-A HEALTH CARE LEGISLATIVE PROPOSAL
2) DEFINITION OF TERMS
3) PROPOSED SUPPORTIVE DECISION MAKING LAW CONCEPT
3(a) Checklist Options for Court Form: Suggested list of powers to be shared or delegated to a Suggested Decision Maker Assistant
(Note: These facts may be offensive to some attorneys, judges, and professional guardians/conservators, yet they are accurate and necessary to understand the true stuation and why the changes are necessary.)
*The US Constitution guarantees the rights to Life, Liberty, Property, Due Process and Equal Treatment under the Law.
*Constitutional rights are often stripped entirely from Vulnerable Persons who are deemed by a court to require certain alleged “protections.” Reasons for these deprivations under State Law include decline to some degree of mental capacity or competency, age, or physical disability.
*The Supremacy clause of the US Constitution means the US Constitution supersedes State Laws not delegated to the States. Therefore, when State Laws allow a judge (who is not a qualified determiner of mental or physical condition and ability) to effectively remove all rights from a Vulnerable Person who is not fully incompetent or mentally incapacitated, the laws are inherently unconstitutional, and the court is violating the rights of the individual.
*The nature of removing rights and transferring them to a third party specifically makes it impossible or nearly impossible for a Vulnerable Person to effectively challenge a wrongful action. The restrictions on communications, access to representation which is not appointed by a potentially corrupt judge, the Vulnerable Person's disability level (executive function), the loss of control of one's own money, and in many cases court action exceeds the life of the victim, all unfairly restrict and obstruct the Vulnerable Person from justice and leave them vulnerable to exploitation. For these reasons, Challenges of Constitutionality are rare and have not overturned State Laws, and many cases are never brought to court.
*By the US Constitution, the right to Self-Determination of a person is Inviolate if they have not been convicted of a crime or their severe infirmity has been recognized by an appropriate medical or psychiatric doctor in writing after an appropriate full evaluation which indicates that they present a clear, unambiguous, and continuing threat to their own life or that of another.
*The scientific medical or psychiatric measure of competency is limited by a myriad of factors which affect testing and lead to subjectivity in determinations. Such factors include but are not limited to: medications, language, hearing, ethnicity/culture, vision, muscle control, mood, amount of sleep, amount of exercise, isolation effects, personality, memory, mental focus, anxiety, education, isolated damage to specific brain regions affecting limited tasks, etc. Nevertheless, informal cognition tests which are too superficial to be used as proofs of incapacity, such as the Montreal Cognitive Assessment and Mini Mental Status Exam are often used as the only alleged evidence against a Vulnerable Person. If the doctor is brought as a witness, the testimony often reveals only a brief examination rather than a responsible assessment.
*It is not for the government or for doctors to determine or impose their personal belief of what is best for a person who has not been properly evaluated to exhibit a clear, unambiguous and continuing threat to the life of them self or others. Doing so is a subjective and a Deprivation of Rights violation.
*Third party threats are never an excuse to deprive any person's rights under the guise of protection.
*Professional guardians and conservators have been shown to be no more likely to be protective over wards than family members or friends. They are more capable of exploitation because they are often attorneys, and have a better understanding of legal tactics as tools of exploitation.
*Professional fiduciary fees are expensive and frequently cause unnecessary drains on the financial means of their wards. Courts award attorney fiduciaries the right to charge very high fees not available to other's, such as family, because it must be financially lucrative enough to interest an attorney. The costs per hour can be far higher than the ward can afford, thus wasting the estate until there is no choice but to place the person in a facility long before they physically or cognitively require that. The fees often cause the liquidation of estates and greater losses to the remaining family and heirs.
*Family members and friends who are trusted by the Vulnerable Person are usually the most likely and motivated to act positively for the person. That is not always the case, but the right to decide that should rest with the person who would otherwise lose their rights.
“VP” : Vulnerable person.
Any person who believes they require a third party to help them cope with mental or physical reduced ability. A Vulnerable Person can also be a person who has been examined by any medical doctor for physical impairment, or a psychiatrist for mental impairment, and such a determination entered on their medical record, or the court has imposed guardianship and/or conservatorship over the person.
“SDM”: Supported Decision Making.
A legal or informal agreement for a third party chosen by the Vulnerable Person to have powers to advise and/or act for the benefit of the VP, with the consent of the VP. The SDM agreement is revocable by the VP at will.
“SDMA” Supported Decision Maker Assistant.
A person who enters into a formal agreement with a VP.
“SDMLP” Supportive Decision Making Law Proposal
SDMLP 1) WHO MAY CREATE AN SDM AGREEMENT:
Any person who believes they are a VP because they believe they have a reduced mental or physical ability may enter into a formal legal agreement for SDM which provides a legal authority specified by the VP, but not specified by the court.
SDMLP 2) RIGHT TO CHANGE FROM GUARDIANSHIP OR CONSERVATORSHIP TO A SDM AGREEMENT:
Any person currently under Guardianship or Conservatorship of any level may Terminate that guardianship and/or conservatorship by choosing a person or persons to serve as an SDMA(s), and providing a written agreement to the court with jurisdiction. The document may be informal, but must contain at least all of the information found on the corresponding Court Form.
SDMLP 3) CRIMINAL INTERFERENCE WITH SDM:
Any person who obstructs a VP from learning about, having access to, or executing any SDM Agreement, and any guardian or conservator who fails to explain and provide their ward with the option of a SDM, or does not confirm that such information and access has been provided by another, shall be guilty of a crime punishable by no more than __ in jail and/or a fine not to exceed $___.
SDMLP 4) THE COURT FORM FOR SDM AGREEMENTS:
The Court Form for SDM Agreements shall include all of the following:
A) A simple language explanation of SDM,
B) A list of the suggested Decisions which a SDMA can share or may be delegated power to act upon. (See SDMLP 7(E) below)
C) An area for the parties to add or modify shared and delegated powers.
D) An option to set a duration of the agreement.
E) The VP and all persons entering into the agreement must sign the agreement with a notary.
F) Each suggested Decision type will be identified with an (A) for Accountant or a (SW) for Social worker as an indication of which pay level a professional SDMA may charge per hour.
CHECKLIST FOR COURT FORM-
The suggested list of powers to be shared or delegated to a SDMA:
*The right to access the VP at any reasonable time or on demand in emergency, at any facility, hospital or placement.
*The right to answer medical/psychiatric questions.
*The right of access to medical/psychiatric information and records.
*The right to sign agreements for housing, including financial contracts.
*The right to purchase property and possessions for use and ownership of the VP.
*The right to enter the VP into contracts and other agreements.
*The right to access bank accounts.
*The right to make payments for the VP for utilities, rents, food, medications, contracts, regular bills, licenses, etc.
*The rights to engage legal representation, to take legal action for the VP, and to consult with that legal representation on behalf of the VP. Legal action includes the right to bring lawsuits and to seek Restraining Orders.
*The right to seek law enforcement intervention or other Agency intervention on behalf of the VP, and to make reports on behalf of the VP.
*The right to represent the VP to the State and Federal Tax authorities, and to prepare or hire preparation of tax forms and submit them.
*The right to access the Social Security number of the VP for any actions in this section.
*The right to act as a fiduciary over Trusts.
*The right to transport the VP within and outside of the State and United States only for benefit of the VP.
SDMLP 5) DUTY OF THE COURT TO APPROVE A SDM AGREEMENT:
Upon Receipt of a VP's SDM Agreement, the court must promptly issue an Order recognizing the SDM Agreement and appointing legal authority to the individual chosen by the VP. The court shall not withhold any part of the authorization unless it is contraindicated by an appropriate medical or psychiatric evaluation being entered on the VP's medical record and which explains why the authorization does not meet the following criteria:
A) An appropriate medical evaluation is conducted by a medical doctor, and shall only concern reasons why the physical impairment would necessarily present a clear and continuous likelihood that the VP would cause life threatening harm to them self or to another person.
B) An appropriate mental/psychiatric evaluation is conducted by a psychiatrist, and shall only concern reasons why the mental/psychiatric impairment would necessarily present a clear and continuous likelihood that the VP would cause life threatening harm to them self or to another person.
C) Threats by third parties, economic circumstances, and any other external matters beyond the influence of the VP shall never be considered reasons for the court to create or retain guardianship or conserevatorship instead of approving SDM Agreements.
D) The VP has the irrevocable right to seek a medical or psychiatric assessment independent from a qualified specialist of their choice, without the influence of the court or a guardian or conservator.
E) The court shall never impose guardianship or conservatorship upon a VP, regardless of the mental or physical condition of the VP without first offering and explaining SDM as an alternative. If the VP appears to have limited ability to understand, the court shall explain SDM to the best of its ability, accounting for language and education. The court may appoint a guardian and/or conservator if the medical or psychiatric evaluation criteria in this section are met.
SDMLP 6) REVOCATION AND MODIFICATION:
An SDM Agreement is revocable in part or entirely by the VP at will, at any time, without a court hearing unless the circumstance under SDMLP 6(C) below applies.
An SDM Agreement may be modified in part or entirely by the VP at any time, without a court hearing. A specific SDMA may be replaced or the terms of their powers altered by the VP at will, at any time.
A) To revoke a SDM Agreement, the VP must notify the SDMA(s), and notify the court in writing by Court Form or informal, legible letter, signed and dated.
B) To alter terms on an SDM Agreement, including who shall serve as SDMA, which Decisions the SDMA may have powers to affect, or to add or subtract a SDMA, the VP VP must notify the 6SDMA(s), and notify the court in writing by Court Form or informal, legible letter, signed and dated. Such alteration shall be treated as a new SDM Agreement as set forth in SDMLP 5.
C) When a VP using SDM Agreement was previously under guardianship or conservatorship which was Terminated by the VP entering that SDM Agreement, and the VP revokes their existing SDM Agreement without a replacement agreement, or modifies it to a lesser delegation of powers which are contraindicated by a medical or psychiatric doctor as in SDMLP 5 above, the court may automatically appoint a temporary guardian and/or conservator with only the powers equal to the revoked SDM Agreement, and until the VP submits a replacement SDM Agreement which comports to the medical or psychiatric indications of SDMLP 5.
SDMLP 7) SDMA POWERS AND RESTRICTIONS:
A) The SDMA never has the power to override the will of the VP.
B) The SDMA can be made a co-signing authority regarding any specific Decision where major Decisions indicated in the agreement are legally invalid without the signatures of both the VP and the SDMA.
C) The SDMA can be delegated full legal authority to act on and sign on behalf of the VP regarding any specific Decisions indicated in the agreement, but such authority is subject to reversal of that decision by the VP. These rights of the SDMA are not conferred when superseded by a Durable Power of Attorney.
D) When a SDMA believes the VP is making decisions which they suspect might present a clear and continuous likelihood due to physical or mental/psychiatric condition that the VP would cause life threatening harm to them self or to another person, the SDMA may refer the VP for evaluation or seek other assistance.
E) The SDMA is not liable for any acts or decisions made by the VP which were counseled against or unknown to the SDMA. Nor is the SDMA liable for any contracts, losses, or injury to the VP as long as the SDMA was innocent of malfeasance.
F) The SDMA would be liable for any damages caused by decisions made and acted upon by the SDMA when shared SDM approval was required but not obtained, or when the SDMA committed a crime, including but not limited to elder abuse, fraud and exploitation.
G) If the SDMA commits a crime using the SDMA authority, the SDMA shall be responsible and liable,but not the VP.
H) PAY: Only a professional SDMA can charge for services, and they may only charge fees at a State set rate determined to be the average rate for a Social Worker or an Accountant, as appropriate for the work being done.
The VGCL Proposal was designed to replace Michigan State guardianship &
conservatorship laws, and would better eliminate ALL of the
exploitation than the SDM proposal. However it was more cumbersome, less
likely to pass as a Bill, and was more expensive to implement.Since posting the VGCL
Proposal (as seen below) I have decided to take a different approach.
The new approach (SDM -above) also focuses on Supportive Decision
Making, but is no longer about replacing current guardianship laws directly. Instead, the new system is designed to lay down on top of existing guardianship and conservatorship law.
Here's the older Voluntary Guardianship and Conservatorship Law proposal which led to our new Supported Decision Making proposal:
Voluntary Guardianship & Conservatorship LawIntroduction
Some people say that the guardianship system itself should be completely abolished throughout the US. They say it violates the US Constitution's protection of civil rights. They say the destruction of lives and billions of dollars in losses to families caused by unchecked guardianship abuse is not worth and is not offset by the benefits which persons in sympathetic, legitimate guardianships and conservatorships enjoy. These proponents for eliminating guardianship and conservatorship favor a method known as “Assisted Decision Making,” which leaves the ultimate authority to the individual, and is a method used successfully in many parts of the world.
“Supportive/Assisted Decision Making” is a truly wonderful thing. The person chooses who they trust and who they wish to help them with decisions which become more difficult as memory goes, or dementia starts to creep in. Some people just have more difficulty doing the math to figure out if they can afford a new car, or even just managing the budget. And some higher courts, such as the Michigan Court of Appeals have ruled that minor mental deficiency is NOT a reason for something so drastic as guardianship. Yet our probate courts insist on appointing FULL guardians and conservators, leaving the person with no effective rights whatsoever, not even the right to go to church.
The VGCL PROPOSAL
1) Compatibility with the Constitution: In order for guardianship to work and be lawful under the US Constitution, the choice of whether to be under guardianship or conservatorship, at all, and the choice to terminate it if such exists, must remain with the individual, and not the court, as long as the individual is sane and can express their desire. This self-determination should be immediate, without cost, and completely outside of the court's jurisdiction beyond notification to the court. Probate courts cannot be consistently trusted to act on behalf of the ward, and have shown themselves all too often to be corrupt.
How this resolves the problem: It is an “escape clause” in case a desired guardianship or conservatorship turns hostile to the interests of the individual. By putting the responsibility for self-determination back into the lawful hands of the individual, that individual's rights to succeed or fail are their own. Most will seek appropriate help (such as Assisted Decision Making), and as a society we can encourage that help. If laws are violated, and the person needs protection, then law enforcement should act as expected. Since the ward can simply opt-out at any time, it would greatly reduce the potential for corrupt acts by removing the incentive, the pay-off, and the power for judges or fiduciaries to exploit, neglect, or otherwise abuse.
2) When an individual chooses to allow full decision-making authority over themself to be court approved, the following should be mandated by law:
*Take away the financial prize leading to corruption: The ability to make a substantial profit from the victim must be eliminated. The best way to control this is to establish a State operated Guardianship and Conservatorship Office which employs non-attorney guardians and conservators on a standardized salaried basis. These employees would thus be subject to statutory regulation and be unable to gain financially beyond their salary. The salary would be equitable for the type of work, so as a Social Worker or an Accountant. This would eliminate the potential for abuse via financial exploitation and fraud. By setting the salary at a level comparable to a social worker's salary and employing social workers, attorneys would be less likely to take careers as professional fiduciaries.
3) An individual wishing to have a guardian or conservator would be required to designate that wish on a form which explains the law and rights, and gives all chosen powers to a person of their choice (friend or family), or at the individual's preference to the State Guardianship Commission. Only the powers confirmed in the checked boxes would be awarded, and only for the duration indicated, subject to immediate termination by the individual at any time, or the resignation of the fiduciary. Appointments of fiduciary, resignations or termination of the requested “Protected Person” status must be filed with the court for record, but are effective immediately when the individual formally states it. Voluntary guardianship or conservatorship can be renewed upon expiration of the chosen term.
What about the existing laws for persons who need guardianship protection because they are found by psychiatrists to be insane or by medical doctors who testify that they have a medical condition such as a coma which prevents them from expressing an opinion?
*Many existing laws are designed to be beneficial to the ward, but are not followed. By removing the financial prize and by conforming them to this new system, the core of basic laws would only need minor modifications to reflect the State agency presence and the ability of the individual to end or change the protected status. The definition of who is to receive mandated protection would change.
*In such cases requiring mandated protection, the court should be required to receive testimony from two or more doctors for medical, or 2 or more psychiatrists for psychological reasons. The doctors cannot have any overlapping monetary or employment relationships or other conflict of interest. The reasons must state that the individual cannot express a rational opinion and why. The doctors must state why the individual requires hospitalization due to the condition, what other options are available, and why no other option is acceptable. It must be based entirely on the individual's condition. It cannot be based on the individual's environment, social, or familial situation. Physical and emotional "protection" from third parties CANNOT be a reason to be placed under guardianship. Video appearance of the doctors should be facilitated in order to minimize demands on their time for court.
*The court should be required, without allowance of judicial discretion, to only ratify the multiple doctor's diagnoses, and only then upon testimony by multiple doctors who have been cross-examined against specified criteria.
*The judge should not be allowed to own an interest in any institutions or affiliations with doctors testifying about probate cases, or have any familial or business ties with, or accept political contributions from persons who benefit from institutionalization of individuals. To assure this, the judges must allow law enforcement open access to their tax income data as a criteria for serving as a probate judge. Violations of this rule by a judge must be considered criminal acts, and if found guilty, a judge must be disbarred and suffer any fines or incarcerations by statute.
*Persons deemed to need guardianship or conservatorship via the mandatory process must be reassessed by doctors and the same court process as soon as their condition appears to have improved sufficiently that they might not need that protection. Any interested party or any other party suspecting that a person has recovered the ability to express an opinion may cause that reassessment.
*A person in guardianship or conservatorship shall be protected from that guardianship or conservatorship by it being subject to examination and review by any interested party or any party suspecting improper activity by the fiduciary. That review shall be designed to expose any intimidation or other wrongful acts by the fiduciary or care worker, whether or not that fiduciary was chosen by the individual. The only action allowed by the complaining party upon finding wrongful acts would be to alert law enforcement of abuse or exploitation, or to seek a court order to bar the wrongful actor from being a guardian or conservator. The ward could then choose another person to serve, or if incapable, the court would appoint another.
-A Grass-Roots Movement for Change-
-We need your help, not your money. Just a little time here and there to talk this up is HUGE! If these solution ideas seem reasonable to you, and you recognize that a vast number of Americans are suffering needlessly under our probate system, then PLEASE join us in the VGCL Movement.
-Most people are aware of probate corruption, but not how common or significant it has become. TELL THEM! Do this a lot.
-Awareness is the key to fixing it. Help us make it a political issue for 2020. Tell your State and Federal Representatives and Senators that you are concerned, and why you want PROTECTION such as the VGCL.
-PLEASE- Forward this paper to everybody you can. That includes the leadership of your church, your State & Federal Representatives & Senators, your Governor, your newspapers and other media outlets.
-Talk to seniors and help them become aware. Talk to vulnerable adults and family who care for them.
As the baby-boomer generation comes into their golden years, the number of victims will increase from a great many to numbers beyond imagination. Will you be one of them?
It's time to step up and do something for yourself, for your family, and for your neighbors.