CONCLUSION
Make Good the Forgotten Promise
In 42 U.S.C. 3001 of The Public Health and Welfare law, Congress made the following declaration:
"The Congress hereby finds and declares that, in keeping with the traditional American concept of the inherent dignity of the individual in our democratic society, the older people of our Nation are entitled to, and it is the joint and several duty and responsibility of the governments of the United States, of the several States and their political subdivisions, and of Indian tribes to assist our older people to secure equal opportunity to the full and free enjoyment of the following specific objectives:
“(6) Retirement in health, honor, dignity - after years of contribution to the economy.
“(10) Freedom, independence, and the free exercise of individual initiative in planning and managing their own lives, full
participation in the planning and operation of community-based services and programs provided for their benefit, and
protection against abuse, neglect, and exploitation."
42 U.S.C. Sec. 3002 defines various terms applicable in guardianship as follows:
“(20) The term ‘fiduciary’-
(A) means a person or entity with the legal responsibility-
(i) to make decisions on behalf of and for the benefit of another person; and
(ii) to act in good faith and with fairness; and
(B) includes a trustee, a guardian, a conservator, an executor, an agent under a financial power of attorney or health care power of attorney, or a representative payee.”
For our vulnerable elderly and disabled - and for their families who are forced to fight for their freedom and safety - Congress must now make good that declaration of intent - particularly paragraphs six and ten - because the states have totally failed their citizens as parens patriae.
Guardianship appears to have become the new "bread and butter" of the Bar and other professionals, replacing family law in its enormity and potential! Dealing with guardianship cases does belong in those professional groups, but the protective statutes were not enacted for the purpose of unjust enrichment; they were meant to protect the individual, their families, and the tax-paying public.
Given the advanced age of elderly guardianship victims, they may not outlive the years of litigation occasioned by unlawful/abusive proceedings; dying instead as wards of the state, on the Medicaid rolls - their estates totally bled by fiduciaries in protracted and unnecessary litigation, and their final care now an unexpected and unnecessary drain on the already overburdened American taxpayers.
A recent AARP Bulletin article asked: "How Can We Protect Against Elder Abuse During a Down Economy?"\79/
Strangely, that article failed to mention abuse by professionals, although it did refer to the March 2009 "Broken Trust" report by Met Life, which did.
That same issue was addressed long ago:
"[L]aw by no means confines itself to its proper functions. And when it has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters. The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect.
“The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others.
It has converted plunder into a right, in order to protect plunder."\80/
Guardianship has become infested with greed and abuse. Protection and conservation, the purpose of the law, has not and cannot be achieved in the present mode. Meaningful reform is critically urgent.
To answer AARP: “STOP IT NOW, BEFORE IT GETS WORSE!”
"Emergency" proceedings are being conducted without regard to even the most basic due process requirements suggested by Wingspan in 2001. Such proceedings are a growing threat to the rights of all future AIPs.
In 1997, guardianship problems were referred to as a "constitutional crisis." \81/ If there was a “constitutional crisis” then, what can we call it now - almost 13 years later - with guardianship cases proliferating so rapidly, so lawlessly and with the Baby Boomers coming of age?
“Every once in a while an injustice of extreme proportions is vanquished in our legal system, thanks to idealistic lawyers and courageous judges." \82/
Question: Where is the outrage from the idealistic lawyers and courageous judges regarding bad guardianships? All lawyers, judges and other fiduciaries are not dishonest – but why are the good guys not blowing the whistle on the bad guys?
Self-discipline has clearly failed us!
America sent a strong and unmistakable message to its legislators during the last election: “We demand change!” We are tired of corruption and waste, cronyism and out-of-control lobbying at the expense of the very people our economy depends upon - the American taxpayers. We call for a return to the values that established our country as a leader of the free world and for real and meaningful action to right the terrible wrongs that have caused us to go so far astray.
If we are truly a government “of the people, by the people, and for the people,” NASGA believes it is TIME FOR MAJOR CHANGE IN THIS HIGHLY ABUSED AREA OF PUBLIC INTEREST LAW TODAY AFFECTING THE WARDS AND OTHERS – THE WARDS’ FAMILIES AND THE TAXPAYERS - AS SECONDARY VICTIMS, BECAUSE OF PURE GREED!
There are numerous areas of federal benefits involved in these unlawful takings: Social Security, Railroad Retirement, Veterans' Pensions and Benefits, and Medicare/Medicaid expense.
Funding for studies with reports a year or two AFTER eventual passage, such as in the Elder Justice Act, is of no value to NASGA members and potential future victims. We need actual, meaningful reform - real changes in monitoring,oversight, enforcement and penalties NOW - without further delay!
FOR ALL OF THESE REASONS, FEDERAL INTERVENTION AND ACTION IS CRITICAL!
NASGA has not been heard from previously. We have members ready, willing and able to testify at congressional hearings. New hearings need to be held and testimony taken from victims and families.
We wish to have an active role and input into all future studies and reform recommendations.
We eagerly await your response and look forward to working together for meaningful change.
Respectfully submitted,
/s/ Elaine Renoire
ELAINE RENOIRE,
President
__________________
Footnotes:
79 AARP Bulletin, How Can We Protect Against Elder Abuse During a Down Economy? by Cynthia Ramnarace (07/01/09)
http://bulletin.aarp.org/yourworld/law/articles/how_can_we_protect_against_elder_abuse_during_a_down_economy_.html
80 Claude Frederick Basiat, Born 1801 AD - Died 1850 AD, http://bastiat.org/en/the_law.html
81 Elder Law Journal, The Elderly in Guardianship: A Crisis of Constitutional Proportions, by Mark D. Andrews, 5 Elder L.J. 75 (Spring 1997)
82 He Fought the Tort Bar - and the Rule of Law Won (05/02/09) www.pointoflaw.com/archives/2009/05/he-fought-the-t.php
In 42 U.S.C. 3001 of The Public Health and Welfare law, Congress made the following declaration:
"The Congress hereby finds and declares that, in keeping with the traditional American concept of the inherent dignity of the individual in our democratic society, the older people of our Nation are entitled to, and it is the joint and several duty and responsibility of the governments of the United States, of the several States and their political subdivisions, and of Indian tribes to assist our older people to secure equal opportunity to the full and free enjoyment of the following specific objectives:
“(6) Retirement in health, honor, dignity - after years of contribution to the economy.
“(10) Freedom, independence, and the free exercise of individual initiative in planning and managing their own lives, full
participation in the planning and operation of community-based services and programs provided for their benefit, and
protection against abuse, neglect, and exploitation."
42 U.S.C. Sec. 3002 defines various terms applicable in guardianship as follows:
“(20) The term ‘fiduciary’-
(A) means a person or entity with the legal responsibility-
(i) to make decisions on behalf of and for the benefit of another person; and
(ii) to act in good faith and with fairness; and
(B) includes a trustee, a guardian, a conservator, an executor, an agent under a financial power of attorney or health care power of attorney, or a representative payee.”
For our vulnerable elderly and disabled - and for their families who are forced to fight for their freedom and safety - Congress must now make good that declaration of intent - particularly paragraphs six and ten - because the states have totally failed their citizens as parens patriae.
Guardianship appears to have become the new "bread and butter" of the Bar and other professionals, replacing family law in its enormity and potential! Dealing with guardianship cases does belong in those professional groups, but the protective statutes were not enacted for the purpose of unjust enrichment; they were meant to protect the individual, their families, and the tax-paying public.
Given the advanced age of elderly guardianship victims, they may not outlive the years of litigation occasioned by unlawful/abusive proceedings; dying instead as wards of the state, on the Medicaid rolls - their estates totally bled by fiduciaries in protracted and unnecessary litigation, and their final care now an unexpected and unnecessary drain on the already overburdened American taxpayers.
A recent AARP Bulletin article asked: "How Can We Protect Against Elder Abuse During a Down Economy?"\79/
Strangely, that article failed to mention abuse by professionals, although it did refer to the March 2009 "Broken Trust" report by Met Life, which did.
That same issue was addressed long ago:
"[L]aw by no means confines itself to its proper functions. And when it has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters. The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect.
“The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others.
It has converted plunder into a right, in order to protect plunder."\80/
Guardianship has become infested with greed and abuse. Protection and conservation, the purpose of the law, has not and cannot be achieved in the present mode. Meaningful reform is critically urgent.
To answer AARP: “STOP IT NOW, BEFORE IT GETS WORSE!”
"Emergency" proceedings are being conducted without regard to even the most basic due process requirements suggested by Wingspan in 2001. Such proceedings are a growing threat to the rights of all future AIPs.
In 1997, guardianship problems were referred to as a "constitutional crisis." \81/ If there was a “constitutional crisis” then, what can we call it now - almost 13 years later - with guardianship cases proliferating so rapidly, so lawlessly and with the Baby Boomers coming of age?
“Every once in a while an injustice of extreme proportions is vanquished in our legal system, thanks to idealistic lawyers and courageous judges." \82/
Question: Where is the outrage from the idealistic lawyers and courageous judges regarding bad guardianships? All lawyers, judges and other fiduciaries are not dishonest – but why are the good guys not blowing the whistle on the bad guys?
Self-discipline has clearly failed us!
America sent a strong and unmistakable message to its legislators during the last election: “We demand change!” We are tired of corruption and waste, cronyism and out-of-control lobbying at the expense of the very people our economy depends upon - the American taxpayers. We call for a return to the values that established our country as a leader of the free world and for real and meaningful action to right the terrible wrongs that have caused us to go so far astray.
If we are truly a government “of the people, by the people, and for the people,” NASGA believes it is TIME FOR MAJOR CHANGE IN THIS HIGHLY ABUSED AREA OF PUBLIC INTEREST LAW TODAY AFFECTING THE WARDS AND OTHERS – THE WARDS’ FAMILIES AND THE TAXPAYERS - AS SECONDARY VICTIMS, BECAUSE OF PURE GREED!
There are numerous areas of federal benefits involved in these unlawful takings: Social Security, Railroad Retirement, Veterans' Pensions and Benefits, and Medicare/Medicaid expense.
Funding for studies with reports a year or two AFTER eventual passage, such as in the Elder Justice Act, is of no value to NASGA members and potential future victims. We need actual, meaningful reform - real changes in monitoring,oversight, enforcement and penalties NOW - without further delay!
FOR ALL OF THESE REASONS, FEDERAL INTERVENTION AND ACTION IS CRITICAL!
NASGA has not been heard from previously. We have members ready, willing and able to testify at congressional hearings. New hearings need to be held and testimony taken from victims and families.
We wish to have an active role and input into all future studies and reform recommendations.
We eagerly await your response and look forward to working together for meaningful change.
Respectfully submitted,
/s/ Elaine Renoire
ELAINE RENOIRE,
President
__________________
Footnotes:
79 AARP Bulletin, How Can We Protect Against Elder Abuse During a Down Economy? by Cynthia Ramnarace (07/01/09)
http://bulletin.aarp.org/yourworld/law/articles/how_can_we_protect_against_elder_abuse_during_a_down_economy_.html
80 Claude Frederick Basiat, Born 1801 AD - Died 1850 AD, http://bastiat.org/en/the_law.html
81 Elder Law Journal, The Elderly in Guardianship: A Crisis of Constitutional Proportions, by Mark D. Andrews, 5 Elder L.J. 75 (Spring 1997)
82 He Fought the Tort Bar - and the Rule of Law Won (05/02/09) www.pointoflaw.com/archives/2009/05/he-fought-the-t.php