Future Trends for State Courts

The National Center for State Courts (NCSC) has published its annual report on things to watch out for in state courts.

[PDF] copy here and [HTML] index here.

The report includes:

Court records and privacy. [PDF] How do courts make information available, especially online, without disclosing sensitive information such as Social Security numbers?
Problem-Solving Courts. [PDF] Rather than the "lock 'em up and throw away the key" approach, courts increasingly are trying to solve the core issues that land people there in the first place. Drug courts, family courts and environmental courts are all examples.

The report draws comparisons to show how things used to be handled and how they are now.

Source: Poynter Online News

Poynter also reported on guardianship:

A flood of guardianship monitoring cases is coming. [PDF] These involve the court, or somebody appointed by the court, to look after the welfare of seniors who cannot manage their own affairs. Consider these facts from the report:
The number of people age 65 and older numbered 35.9 million in 2003. As the baby boomers come of age, this older population will more than double, reaching more than 71 million by 2030. The number of people aged 85 and older is expected to triple by 2040 to 15 million.Alzheimer's disease and related dementias are becoming more prevalent. In 2007 there are now more than 5 million people in the United States living with Alzheimer's disease, 4.9 million of whom are over the age of 65. This is a 10 percent increase from the previous nationwide estimate of 4.5 million. In addition, guardianships include an increasing number of younger adults with developmental disabilities and mental illness. Intellectual disabilities affect about one in ten families in the U.S.At the same time, incidents of elder abuse are rising. Between 1986 and 1996, reports of abuse and neglect of seniors age 60 and older to state adult protective services agencies increased 150 percent, from 117,000 to 293,000.

So judges will be increasingly involved in managing these lives. Courts have never managed as many guardianship cases as they do now -- and many more are on the way. How will courts, especially in retirement communities, handle the flood?

People in the Know

Guardianship and conservatorship abuse is apparently nothing new.

People in the know speak out about guardianship abuse and fraud

The following are some quotes about guardianship abuse and fraud from highly respected sources:

"This [guardianship] is an area ripe for fraud and where most fraud abuse has in fact occurred." — Karleen F. DeBlaker, Clerk of the Circuit Court, Pinellas County, Florida (4/2004)

Reports of guardians stealing from their wards' bank accounts and other wise abusing guardianship powers are surfacing with disturbing regularity. 'This problem is going to get bigger and bigger,' says E. Bentley Lipscomb, AARP's Florida state director and a former state secretary of elder affairs. — GUARDIANS DRAWING INCREASED SCRUTINY, AARP Bulletin

It is a system that in practice often serves lawyers over clients. Even as the court's lax oversight allows guardians to neglect their responsibilities, it also permits some lawyers to take unnecessary control of people's lives. — Washington Post, 2003

Judges and their favored professional conservators and guardians, expert witnesses and court investigators have unspoken agendas: money, power and control. When an elderly individual is brought into court and forced to prove his or her competence, we soon see that the system does not work. We have a system rife with court-sanctioned abuse of the elderly. Why? Judges override protections that have been put in place in the codes. It happens every day. Judges disregard durable powers of attorney — the single most important document each of us can create to determine our care should we become incapacitated. Judges ignore our lists of pre-selected surrogate decision-makers. The current system does not work. This reality is most apparent when a wealthy individual falls victim to these involuntary proceedings and his or her wealth becomes a ripe plum to be shared by the Judge’s favorites. — Diane G. Armstrong, Ph.D., excerpt of prepared statement before the U.S. Senate's Special Committee on Aging, February, 2003. Author of The Retirement Nightmare: How to Save Yourself from Your Heirs and Protectors: Involuntary Conservatorships and Guardianships

The denial of these rights is the consequence of a court determination that an individual is legally "incompetent" or "incapacitated" and the appointment by the court of a guardian to act as surrogate decision maker on the person's behalf. The real tragedy is that mounting evidence suggests that many of these individuals having been stripped of their right to self-determination are being poorly served, and even victimized and exploited by the very persons or agencies appointed to protect them and to make decisions on their behalf. — House of Representatives, Select Committee on Aging Report

...guardianship can divest an elderly person of all the rights and freedoms we consider important as citizens. — Chairman of the Senate Special Committee, Larry Craig

"Ironically, the imposition of guardianship without adequate protections and oversight may actually result in the loss of liberty and property for the very persons these arrangements are intended to protect. — Chairman of the Senate Special Committee, Larry Craig

“Instead of serving to protect the assets of incapacitated persons, the existing guardianship system presents the opportunity for unscrupulous guardians to loot the assets of their wards and enrich themselves with impunity.” — New York Grand Jury

Elderly people are routinely stripped of basic rights in court hearings. — Detroit Free Press

"Outside of execution, guardianship is the most radical remedy we have." — Elias Cohen, Philadelphia Attorney and Gerontologist

The gulag of guardianship: the legal system meant to protect our elderly is a national disgrace. — Money Magazine

"... older Americans are being robbed of their freedom and life savings by a legal system created for their protection." and "Although relatives are the most common exploiters, the damage they cause generally stays within the confines of their own families. By contrast, greedy professional guardians can wreak havoc on a far larger scale. In many states, there are few prerequisites for entering the guardianship business: no special training, no licensing process, no enforceable professional standards." — AARP: The Magazine, January/February 2004

"These are not isolated, occasional blips. This constitutes a significant portion of the cases out there. They were flat-out rip-off situations." — Robert L. Aldridge, elder law attorney and a member of ElderLawAnswers.com

Re: forced incompetency: Visit assisted-living facilities [and retirement communities] and establish employee contacts; obtain voluntary limited financial guardianship; if there is money in the estate, do paperwork to force an evaluation of competency; get control over everything and the ward [senior] loses all rights. — Pinellas County Internal Auditor, Robert W. Melton, "Dirty Tricks of Guardianships – The Need for Change." April/2004

Once judged incompetent and placed under a conservatorship [or guardianship], a citizen becomes a nonperson, with fewer rights than a convicted felon in a penitentiary. Your income goes to the conservator, who also controls your assets. You can't write a check, use a credit card, or make an ATM withdrawal. — Robert Casey, Editor, Bloomberg Wealth Manager

"This is something that ought not to be taken lightly. Seniors have become victims of the legal process. When you become old, you should not, by the action of a court, automatically lose your rights just because some family member or impersonal administrator calls you incompetent." — Senator Larry Craig, Chairman, U.S. Senate's Special Committee on Aging. (February, 2003)

"[O]ne startling conclusion about the whole process of incompetency was drawn from the realization that in almost every case examined the aged incompetent was in a worse position after he was adjudicated incompetent than before. The study could identify no particular benefit which flowed to the incompetent that he could not have received without a finding of incompetency." G. Alexander & T. Lewin, The Aged and the Need for Surrogate Management, 136

Source: Justice for Florida Seniors Archive

T is for Trespass

Information on the Sue Grafton mystery that confronts the evil of elder abuse was sent from a NASGA member saying:
"The people who change history are the artists - a call for novels, art, cartoons, poetry, and music as effective weapons of truth."

This appears to be a mystery that guardianship and conservatorship victims or their families can identify with.

tres•pass \'tres-p s\ n: a transgression of law involving one’s obligations to God or to one’s neighbor; a violation of moral law; an offense; a sin –Webster’s New International Dictionary (second edition, unabridged)

In what may be her most unsettling novel to date, Sue Grafton’s T is for Trespass is also her most direct confrontation with the forces of evil. Beginning slowly with the day-to-day life of a private eye, Grafton suddenly shifts from the perspective of Kinsey Millhone to that of Solana Rojas, introducing listeners to a chilling sociopath. Rojas is not her birth name. It is an identity she cunningly stole, an identity that gives her access to private care-giving jobs. The true horror of this novel builds with excruciating tension as the listener foresees the awfulness that lies ahead. The wrenching suspense lies in whether Kinsey Millhone will realize what is happening in time to intervene. T is for Trespass–dealing with issues of identity theft, elder abuse, betrayal of trust, and the breakdown in the institutions charged with caring for the weak and the dependent–targets an all-too-real rip in the social fabric. Grafton takes us into far darker territory than she has ever traversed, leaving us with a true sense of the horror embedded in the seeming ordinariness of the world we think we know. The result is terrifying.

Source: Sue Grafton - Reviews

From Book Reporter: As silent and lethal as undetectable poison, Solana begins to set the stage for the solitary Gus’s demise. Through lies, deception, deliberately confusing times of day and drugging his food, he soon appears to have dementia and memory loss to friends who visit. His distant niece who trusts Solana enables her to take more responsibility with his day-to-day needs.

Kinsey begins to suspect that something is wrong when Gus’s personality changes and starts to look for evidence of wrongdoing. Solana’s sociopathic behavior and paranoia soon turn on Kinsey, and she finds herself the object of Solana’s abuse.

As current as today’s headlines, Sue Grafton tackles the problems of identity theft and elder abuse in an exciting new novel --- the 20th in her legendary alphabet series.T IS FOR TRESPASS is more than a good mystery; it is an alert to the dangers that await us all if we are not aware of how easy it is for an unscrupulous person to insinuate themselves into a family member’s life.

Read an excerpt from the book: T is for Trespass

More from other readers: Amazon Customer Reviews

An Alleged Kidnapping

Delores Forste is the daughter who was accused of kidnapping her own mother.
Emma France is a 95 year old woman that claims a government official in Jasper County Missouri charged that she was kidnapped by her 67 year old daughter. An appeal made by Emma France to free her daughter Delores Forste was made on a video:

It was reported that Emma was represented by a court-appointed counsel, otherwise known as an guardian ad litem, but no testimony was offered suggesting that Emma was capable of taking care of her own affairs. Instead the judge in what appeared to be a very short probate trial signed away her free will. France challenged the charges against her daughter. She said Forste is not guilty of financial exploitation or kidnapping. She said she wanted to go to California and to get out of Jasper County after she was hospitalized and made a ward of the public administrator. She said both actions were taken against her will.

More on this case was reported in the Joplin Independent and the Joplin Globe:

Emma France says daughter is innocent

Emma France makes video appeal to free daughter

Woman accused of kidnapping her mother speaks out

Preliminary hearing set for woman charged with kidnapping mother

Special prosecutor tabbed in case of woman who moved mother

Woman who ‘kidnapped’ mother faces extradition hearing

Woman, charged with kidnapping mother, released on bond

It was also reported that the fees charged by a Jasper County public administrator, are many times higher than those levied by her predecessor. They also are many times higher than those levied by other public administrators in three similarly-sized Missouri counties. The daughter is quoted as saying:
“I really believe this is all about money.”

Source: Jasper County public administrator defends fees

Guardianship Legislation

According to a State Adult Guardianship Legislation report, about 13 states passed a total of 16 adult guardianship bills last year.

The report includes - Connecticut bolstering procedures for appointment and appeal. Washington, Arkansas and Nevada creating or strengthening a public guardianship program.

Other states in the report include Arizona, California, District of Columbia, Illinois, Idaho, Kentucky, Minnesota, Rhode Island and Virginia.

Legislation at a glance:

California's Omnibus Act was also mentioned in the report. "In 2006, in response to a series of reports on the state’s adult guardianship system (called “conservatorship” in California), the legislature passed an Omnibus Act, which was “a landmark package of bills to overhaul California’s troubled conservatorship system. That legislation [was] designed to remedy alarming deficiencies in California’s conservatorship system that had led to the abuses of California’s elderly and most vulnerable” (Bill Summary, Legislative Analysis, Leora Gershenzon). While the Act was moving through the legislature, the Chief Justice appointed a Probate Conservatorship Task Force to make recommendations for reform. The Task Force released recommendations, several of which were included in AB 1727, which also makes a number of technical and other clarifying amendments to last year’s Act."

After the good news of California's much needed reform, it was reported that Schwarzenegger vetoed the funding. "Gov. Arnold Schwarzenegger Friday signed into law a $145 billion budget for FY 2007-2008, but not before using his line-item veto power to cut $700 million, including $17.377 million that would have implemented conservatorship reforms approved by lawmakers last year."

Source: Schwarzenegger Vetoes Conservatorship Reform Funding

The Los Angeles Times reported: "When yacht owners are preferred over the aged and homeless, the bottom line is we've sunk too low."

Source: Schwarzenegger's bad budget cuts

In reality, it is not clear how any of the new legislation will help victims of guardianship and conservatorship abuse. NASGA believes that much more is needed.

Reports from the Commission on Law and Aging, American Bar Association:
State Adult Guardianship Legislation: Directions of Reform - 2007
State Adult Guardianship Legislation: Directions of Reform 2006

Plea for Justice

Dr. Robert Sarhan's plea for justice is circulating the Internet.

According to Dr. Sarhan, here is the problem:

Yvonne Sarhan, never wanted nor requested a guardian, this was forced against her will. Yvonne Sarhan requested orally and in writing to the judge, that if she had to have a guardian she wanted her son, Robert Sarhan. Yvonne Sarhan was competent at the time of her being adjudicated incapacitated on August 5, 2003. She was ruled competent by the Court appointed psychiatrist on March 10, 2004. Another doctor, also a board certified neurologist, evaluated Yvonne Sarhan and both agreed that she was competent and had good judgment and insight about her financial and personal life.

For more information see:
Habeas Corpus (PDF)

Response to Strike Motion to Dismiss Writ of Habeas Corpus Petition (PDF)

Dr. Sarhan's plea is but one of many. A forced guardianship against the will of an "alleged incapacitated person" is an epidemic practice throughout the United States. Many times these proceedings are unnecessary and then become abusive.

Sadly, complaints such as this one seem to be surfacing more and more.

Is anybody listening?