The authors are NOT acting as attorneys by giving this advice. Go find an honest attorney that you picked based on someone's experience, their court record, and on what they fought. Anything sounding accusatory in this writing is still an allegation, but I do not write anything which for which I do not have proof.)
Voluntary Guardianship & Conservatorship LawProposal
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.