Monday, July 25, 2016

"Constitutional Requirement for Separation of Powers"

by NASGA Member David Arnold

The root cause of guardianship abuse is that the present system of managing guardianship violates the principle of separation of powers required under the constitution to provide checks and balances. Cut the root and the whole plant will die.

The difference between democracy and dictatorship is that no one in a democracy has absolute power. When there is no separation of powers the result is dictatorship.

Under the present system the court is responsible for selection and appointment of guardians in addition to its defined duty of prosecuting abuse by guardians. The court has sole power over guardianship.

If there is collusion between a judge and a guardian there is no legal recourse! If there is a complaint against a guardian the judge is both a party to the dispute and the arbiter of the dispute. This is a conflict of interest.

Judges cannot be forced to prosecute a guardian they appointed. This forces judges to admit they made a mistake. This violates the constitutional right of judges against self incrimination!

The answer to the problem is to separate authority for appointment and oversight of guardians from authority for prosecuting guardians.

Separation of powers can be accomplished by transferring authority for managing the affairs of incapacitated elder persons from the court to the state Elder Service agencies.

My state of Massachusetts has good Elder Service agencies that are capable of managing guardianship. This separation of powers would prevent collusion between a judge and a guardian and allow a judge to prosecute a guardian as a disinterested party without fear of self incrimination.

Having the Elder Service agency be responsible for selection and oversight of guardians does not represent a net increase in cost since the court would no longer have this duty.

Source:
NASGA Soapbox

9 comments:

MaryAnne said...

I agree with the author. The problem is there is no solution.

Tom said...

Elder agencies (APS, Elder Affairs) are often the perpetrators of guardianship which they file before their investigation even begins.

Paul said...

I agree with every word of this article, but I don't think having Elder agencies in charge will help. CPS and APS are understaffed and quite often unresponsive.

NASGA Member said...

I believe guardianship should be monitored by the courts, but the courts need staffing and procedures as well as consequences if the court turns its head to law violations.

Anonymous said...

A very compelling piece! Thank you, NASGA. I'm going to think on this a while. There has to be an answer to fix this.

David Arnold said...

Transferring authority for management of guardianship to the state Elder Service agencies would be an effective way to deal with conflict of interest in the present system. The employees of the Elder Service agencies are financially disinterested salaried public employees. The do not benefit financially from the decisions they make since they are on salary. It is to their benefit to do what is in the best interest of people under their care to advance their own careers. Management of guardianship by the legal system is riddled with conflict of interest. As the article on Separation of Powers points out judges are in a position of conflict of interest because they are both a party to and the arbiter of guardianship disputes. Lawyers are in a position of conflict of interest because they are self employed. If they do a good job of resolving a case they are out of a job. This was the subject of a “NON SEQUITUR” cartoon in 1994 entitled “Law School: Day One…”. The professor had written on the backboard “It’s not whether you win or lose. It’s how long you can drag out the case for billable hours.” Lawyers make a lot of money from guardianship disputes. Reform legislation in Florida was vicious attacked by elder law attorneys. A professional guardian who has guardianship and conservatorship is both employer and employee. The guardian has the power to decide what services to perform and pay themselves out of the assets of the ward. Nursing homes are for-profit businesses looking for new clients whether or not the person really needs to be in a nursing home. The mandate of the Elder Service agencies is to provide advice and financial assistance to incapacitated persons to enable them to stay at home as long as possible. This is in the best interest of the government to save on Medicald costs. In my opinion the employees of the Elder Services agencies did everything right in the guardianship case I was involved in. The court did everything wrong. Whether the Elder Service agencies do a good job may vary from state to state. My guardianship case was in Massachusetts.

David Arnold

David Arnold said...

Transferring authority for management of guardianship to the state Elder Service agencies would be an effective way to deal with conflict of interest in the present system. The employees of the Elder Service agencies are financially disinterested salaried public employees. They do not benefit financially from the decisions they make since they are on salary. It is to their benefit to do what is in the best interest of people under their care to advance their own careers. Management of guardianship by the legal system is riddled with conflict of interest. As the article on Separation of Powers points out judges are in a position of conflict of interest because they are both a party to and the arbiter of guardianship disputes. Lawyers are in a position of conflict of interest because they are self employed. If they do a good job of resolving a case they are out of a job. This was the subject of a “NON SEQUITUR” cartoon in 1994 entitled “Law School: Day One…”. The professor had written on the backboard “It’s not whether you win or lose. It’s how long you can drag out the case for billable hours.” Lawyers make a lot of money from guardianship disputes. Reform legislation in Florida was vicious attacked by elder law attorneys. A professional guardian who has guardianship and conservatorship is both employer and employee. The guardian has the power to decide what services to perform and pay themselves out of the assets of the ward. Nursing homes are for-profit businesses looking for new clients whether or not the person really needs to be in a nursing home. The mandate of the Elder Service agencies is to provide advice and financial assistance to incapacitated persons to enable them to stay at home as long as possible. This is in the best interest of the government to save on Medicald costs. In my opinion the employees of the Elder Services agencies did everything right in the guardianship case I was involved in. The court did everything wrong. Whether the Elder Service agencies do a good job may vary from state to state. My guardianship case was in Massachusetts.

David Arnold

David Arnold said...

Transferring authority for management of guardianship to the state Elder Service agencies would be an effective way to deal with conflict of interest in the present system. The employees of the Elder Service agencies are financially disinterested salaried public employees. They do not benefit financially from the decisions they make since they are on salary. It is to their benefit to do what is in the best interest of people under their care to advance their own careers. Management of guardianship by the legal system is riddled with conflict of interest. As the article on Separation of Powers points out judges are in a position of conflict of interest because they are both a party to and the arbiter of guardianship disputes. Lawyers are in a position of conflict of interest because they are self employed. If they do a good job of resolving a case they are out of a job. This was the subject of a “NON SEQUITUR” cartoon in 1994 entitled “Law School: Day One…”. The professor had written on the backboard “It’s not whether you win or lose. It’s how long you can drag out the case for billable hours.” Lawyers make a lot of money from guardianship disputes. Reform legislation in Florida was vicious attacked by elder law attorneys. A professional guardian who has guardianship and conservatorship is both employer and employee. The guardian has the power to decide what services to perform and pay themselves out of the assets of the ward. Nursing homes are for-profit businesses looking for new clients whether or not the person really needs to be in a nursing home. The mandate of the Elder Service agencies is to provide advice and financial assistance to incapacitated persons to enable them to stay at home as long as possible. This is in the best interest of the government to save on Medicald costs. In my opinion the employees of the Elder Services agencies did everything right in the guardianship case I was involved in. The court did everything wrong. Whether the Elder Service agencies do a good job may vary from state to state. My guardianship case was in Massachusetts.

NASGA said...

Comment from author of the article, David Arnold:

Transferring authority for management of guardianship to the state Elder Service agencies would be an effective way to deal with conflict of interest in the present system. The employees of the Elder Service agencies are financially disinterested salaried public employees. They do not benefit financially from the decisions they make since they are on salary. It is to their benefit to do what is in the best interest of people under their care to advance their own careers. Management of guardianship by the legal system is riddled with conflict of interest. As the article on Separation of Powers points out judges are in a position of conflict of interest because they are both a party to and the arbiter of guardianship disputes. Lawyers are in a position of conflict of interest because they are self employed. If they do a good job of resolving a case they are out of a job. This was the subject of a “NON SEQUITUR” cartoon in 1994 entitled “Law School: Day One…”. The professor had written on the backboard “It’s not whether you win or lose. It’s how long you can drag out the case for billable hours.” Lawyers make a lot of money from guardianship disputes. Reform legislation in Florida was vicious attacked by elder law attorneys. A professional guardian who has guardianship and conservatorship is both employer and employee. The guardian has the power to decide what services to perform and pay themselves out of the assets of the ward. Nursing homes are for-profit businesses looking for new clients whether or not the person really needs to be in a nursing home. The mandate of the Elder Service agencies is to provide advice and financial assistance to incapacitated persons to enable them to stay at home as long as possible. This is in the best interest of the government to save on Medicald costs. In my opinion the employees of the Elder Services agencies did everything right in the guardianship case I was involved in. The court did everything wrong. Whether the Elder Service agencies do a good job may vary from state to state. My guardianship case was in Massachusetts.

~David Arnold