When Doris Preston died, the former schoolteacher left behind a small estate, no will and a single heir: her adopted son, Deartis, a mentally disabled 52-year-old she’d raised in her Denton home. Doris’ close-knit siblings say they rallied around their nephew like they had for a lifetime, bringing him to Bay City to live with the family and using part of the inheritance to purchase a house for him two blocks away. But when they went to probate court to iron out the details of the estate, their plans disintegrated.
A Denton County probate judge determined Deartis needed a court-appointed guardian and attorney to advocate for his interests. Those appointees argued that the money left in the names of Doris’ siblings should rightfully belong to Deartis, and that her siblings were making poor financial decisions on his behalf.
In the five years of legal wrangling since Doris’ death, the court has approved payments of nearly $450,000 to these appointed officials, private attorneys for the family say, depleting the amount of money left to care for Deartis.
“We went innocently into probate court so we could go on and take care of the family,” says Michael Preston, Doris’ brother. “Instead, we got the most corrupt thing I’ve ever seen in my life.”
Full Article and Source:
Families Lose Estates in Guardianship Battles
I have posted this before, but it is worth repeating.
ReplyDeleteHistorically, probate courts are/were the "creditors' courts" where claims against estates are administered.
At the same time probate courts are the courts to bring and enforce claims on behalf of estates.
This is messy stuff because ... "the law of liquidation has taken precedence over the law of preservation". [Henry's Indiana Probate Law and Practice -- treatsie on probate law, Chapter 37 Guardianship at pg. 37.01 "Theory Of Guardianship"]
Folks ---FIND A GOOD LAW LIBRARY, FIND A PROBATE TREATSIE for your specific state. READ and READ some more. Check online for a Law School near your. The law library at every law school has a research assistant. Email them ask for the treatsie on your state probate law. The Law School and Law Library will help you find the materials you need to read. They won't read them for you nor will they likely know anything about the issues you face .... BUT GET THAT TREATSIE AND READ ...
You will not regret what you find.
the "Practice Commentary" which appears in the foreward of the Indiana Probate Guardianship Code but it states, in part;
ReplyDelete"In most cases every effort should be used to avoid an adversary court hearing for the appointment of a guardian because it frequently is difficult and expensive for the incompetent, time consuming for the family and not enjoyable for the judge or the attorney. Contested hearings certainly do not conserve assets and result in a delay, which usually frustrates the original need for a guardian."
If you read the above carefully what it says is that; in practice, the mere filing of the petition rises to a presumption of incompetency.
This is an unconstitutional practice............. But,
Know this too ---- since the 1970's and the adoption of the "Rules of Civil Procedure" ...... when filing a civil petition or lawsuit the procedural practice is that all "well plead facts and allegations are presumed true" ........ [This is how courts procedurally dispose of cases without full litigation and trials ...... ]
The problem with c-ships/g-ships is that the proceedings are not a practice model that necessarily fits the "Model Rules Of Civil Procedure" ...... c-ship/g-ship are "sui generis" meaning of their own kind ....... and since there are so very few "old school attys around anymore the young whipper-snappers have little or no idea how this crap works, excpet to exploit the flaw they know exists. Practicing "invited error"
If you read the first couple paragraphs of this link ....... it speaks volumes about our experiences
http://normpattis.blogspot.com/2009/03/mental-health-and-law-its-civil-issue.html
Good opportunity for comment here from NASGA members if they leave the comment up is another matter. http://www.dentonprobateattorneys.com/2010/09/when-parents-of-children-with-special-needs-die-without-a-will.shtml
ReplyDeleteIt's just not right that anyone should have to lose everything he/she has worked a lifetime to build in order to attempt to protect someone from abuse from the system.
ReplyDeleteI am horrified.
I will pray for these families. I hope they also join NASGA as well as GRADE because reform is needed all across the country and not just one state.
ReplyDeleteThis family stood up for their son and because they didn't agree with the doctors, they've gone to guardianship hell? What's wrong with this picture? Doctors are all over the news making mistakes, accidentally killing people, malpractice rampant.
ReplyDeleteOf course, everyone should realize it wasn't about what the family did or didn't do. It was about money. The judge puts in the third-party guardian for money.