THE NEED FOR FEDERAL INTERVENTION
In December 2006 AARP’s Public Policy Institute issued a white paper for the Senate Special Committee on Aging, titled "Federal Options to Improve America’s Ailing Guardianship System."\75/ AARP gathered the statistics, and once again set forth the major problem in clear, simple and straightforward terms:
“Guardianship can both prevent and promote elder abuse. On one hand, a guardian can protect an incapacitated person from abuse, neglect and exploitation. Conversely, without sufficient court monitoring, guardian education and standards, guardians may commit elder abuse, neglect or exploitation or fail to protect an incapacitated person from abuse or exploitation by others." (Emphasis added)
All the reports, over the years, make abundantly clear that the core problem with guardianship is the lack of adequate and meaningful monitoring and oversight, permitting rampant abuse.
The primary areas, AARP suggests, for intervention and change on the federal level are the following:
*Improving coordination between federal fiduciary programs (e.g. Social Security representative payees, Department of Veteran Affairs fiduciaries) and state guardianship systems.
*Assisting states in improving guardianship monitoring, which is critical to protect this vulnerable population.
*Enacting the Elder Justice Act as a vehicle for improving the guardianship system and thereby preventing and readdressing elder abuse.
While NASGA supports parts of the Elder Justice Act, we do not believe that waiting for more reports and recommendations as late as two years from potential passage is an adequate answer when the situation is so critical.
What is needed to stop the bleeding, first and foremost, and without further delay, is enforcement of existing law - and new teeth: more and enhanced criminal penalties for wrongdoers and changes in monitoring and oversight.
AARP’s report goes on to say: “GAO recommended that SSA convene an interagency study group to increase the ability of representative payee programs to protect federal benefit payments from misuse. Although VA, HHS, and OPM indicated their willingness to participate in such a study group, SSA disagreed with this recommendation, and its position has not changed.”
Because the SSA has claimed that the coordination between federal and state government is not within their purview, we do not see this as an achievable reform.
To sum up the actual SSA report, apparently, they agree with us: TOO MANY COURTS; TOO MANY DIFFERENT RULES.
Therefore, we need federal intervention in the form of a mandatory guardianship statute covering due process and other rights and protections.
The continuing lack of sufficient reform, transparency and accountability remains the major problem in guardianship today. Without a national standard and mandate set by the federal government, there can be no relief from the guardianship nightmare. In order to protect our citizens, federal law must control!
Too much time has passed - too many victims and families have been injured under state management - to continue to overlook this urgent need, which Congress has already recognized but has done nothing about.
There are laws in place which can and should prevent continuing abuse, but lower federal courts have been unwilling to accept jurisdiction over state-court guardianship cases, relying - too often improperly – on abstention and exception principles, relying on the “probate exception,” when constitutional deprivation and rights violations are clear on the face of the application.
In so doing, they avoid engaging in the massive problems of unlawfulness in the state courts across the country, leaving our members exposed to “rape and plunder” in the guise of guardianship.
Fourth Amendment
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The elderly face the throwaway mentality of age prejudice by younger generations and now, apparently by their own government! They are literally committed to life imprisonment for frivolous reasons, in violation of their Fourth Amendment right to be secure against unreasonable search and seizure.
Fifth Amendment
“No person shall be…deprived of life, liberty, or property, without due process of law.“
Guardianship proceedings, perhaps more than any other legal industry, engage in the most profound deprivation of rights. It is shocking that our society and our government tolerate such infliction on our vulnerable citizenry.
Wrongful denial of personal liberty violates the cherished principles that we have fought for throughout our nation’s history. The most fundamental rights and protections guaranteed by our Constitution are crushed by an overburdened, uncaring or corrupt state judiciary.
With alarming regularity and inadequate “vetting,” probate and other guardianship courts routinely strip guardianship victims of their liberty, their property, and their families for the rest of their lives. Many guardianship proceedings are over in mere minutes, with either no transcript of the proceedings and/or grossly deficient clerical entries in case records. The worst violation of all is the lack of evidence of notice and service of notice in those docket sheets, which would easily render the proceedings void if the victims knew their rights - of if their attorneys were willing to go against the judges before whom they earn a living!
Occasionally, there’s a ray of hope: In the case involving then Public Guardian Rita Hunter previously cited, an order making an individual a ward of the county was voided because her daughter and/or other relatives were not notified of the court proceeding, thus depriving them of constitutional “opportunity.” Their lawyer advised them of their rights, and they pursued their remedy. Media attention on this case and attendant public outrage helped bring about a positive resolve.
The “clear and convincing” evidentiary standard is the one generally required in guardianship proceedings. The problem is that many judges are simply not complying with law. What can an unsuspecting victim or family member know if they're not lawyers and their own lawyer fails to advise them properly by withholding informed consent, to protect themselves against judicial wrath?
Sixth Amendment
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
Civil detainees (guardianship victims) do not enjoy equal rights.
If a person is alleged to be incompetent, is he/she expected to comprehend a complicated legal document and understand fully the ramifications of what will follow? Even a competent person, untrained in law, cannot know. There is no uniform requirement in state protective statutes for representation by counsel for an AIP. While some states require representation, others may even make it discretionary on the part of the judge.
Over time, in certain detainee cases on the civil side, similar rights to representation have been afforded, but not uniformly in the area of guardianship.
Ironically, AIPs - who have committed no crimes - are quickly stripped of all their rights and liberties. The worst deprivation is, almost unbelievably, the right to complain. Stripped of control of their assets, they cannot even retain counsel!
If people who have been accused of crimes, regardless of the severity, have such rights, should not our most vulnerable members of society - facing civil commitment FOR NO WRONGDOING AT ALL - have the same rights?
We need a clear and consistent pronouncement in that area specifically with regard to the aging and disabled, who are subject to unlawful civil commitment in guardianship - and we need it at the federal level.
Our Constitution was ingeniously designed to avoid just this sort of deprivation of liberty, but sadly, its protections have been denied to guardianship victims in many cases.
Fourteenth Amendment
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Because bad guardianship has become a compelling American problem, there is an urgent need for Congress to take action in order to protect all federal rights and protections which are routinely violated with impunity in the state courts.
Habeas Corpus
The writ of habeas corpus is called "the best and only sufficient defense of personal freedom."
The writ serves as an important check on unlawful imprisonment. The basic premise behind habeas corpus ("you have the body") is that people can not be held against their will without just cause (due process of law). In the case of an unlawful detention, filing a petition for a writ of habeas corpus requires that the courts must issue a writ, which forces those responsible to appear and be examined as to the legality of their proceedings.
However, the federal courts have been unwilling to accept habeas petitions in guardianship cases based on the "probate exception." The guardianships we are addressing involve gross violations of federal law - constitutional deprivation, statutory violation, civil and human rights violations – where the probate exception would not apply.
Many victims of unlawful guardianship are adjudicated as incompetent in violation of the Constitution and laws of the United States, yet efforts to free them in the state and federal court systems are often futile and always extremely costly, and time consuming.
28 U.S.C 2254 \76/ requires exhaustion of state procedures of available State corrective process; or circumstances that render such process ineffective to protect the rights of the applicant.
Each of these requirements are problematical for the vulnerable elderly or disabled in state-court guardianships:
1. The advanced age/disability of the potential habeas applicant makes exhaustion of state procedures impossible due to their length and cost; and
2. The advanced age/disability of the potential habeas applicant makes use of state corrective proceedings impossible due to their length and cost; and
3. Advanced age/disability and lack of funds (now so quickly removed form control of merely an alleged incapacitated person ("AIP") by state court, prevent choice of counsel and render any state process not only ineffective, but unavailable. Many of these unlawfully detained individuals will not outlive the requirement of exhaustion of state remedies. It is unfair and unjust to require state exhaustion when a law designed to protect vulnerable individuals is used improperly, to their detriment, and as a means of unjust enrichment by wrongdoers.
Satisfying state exhaustion requirements and going through successive levels of courts to assure life, liberty and property rights is extremely punitive for anyone, but practically impossible or of no value at an advanced age or when someone is suffering from a disabling condition.
We doubt that Congress considers the unlawful detention of innocent vulnerable adults each time they review the habeas statutes. While they are not described in state proceedings as "defendants," they have less rights and protections under state laws than criminals.
On June 12, 2008, the Supreme Court of the United States extended habeas protection to “enemy combatant” detainees held at Guantanamo Bay, Cuba, and ruled that section 7 of the Military Commissions Act of 2006 (MCA) was an unconstitutional suspension of that right. The ruling reminds us of the critical need for availability of habeas in guardianship:
“The Court's ruling was grounded in its recognition that the guarantee of habeas corpus was so central to the Founding that it was one of the few individual rights included in the Constitution even before the Bill of Rights was enacted. As the Court put it: 'The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom.' The Court noted that freedom from arbitrary or baseless imprisonment was one of the core rights established by the 13th Century Magna Carta, and it is the writ of habeas corpus which is the means for enforcing that right. Once habeas corpus is abolished -- as the Military Commissions Act sought to do -- then we return to the pre-Magna Carta days where the Government is free to imprison people with no recourse.”
That is exactly what we are dealing with in unlawful guardianships – no recourse!
Vulnerable U.S. citizens - who are neither criminals nor terrorists - are unable to find a remedy in the very state court system which is knowingly, willfully, and deliberately violating their rights on a scale of epidemic proportions.
Q. Are our vulnerable elderly citizens criminals?
A. No.
Q. Are they subjected to unlawful restraint?
A. Yes.
Q. Are they terrorists?
A. No. THEY are being terrorized!
Q. Should they have at least equal rights as enemy combatants?
A. Yes.
Interstate Grannynapping – “Kidnapping” or “Rescuing”?
A number of our members have had their elderly relatives abducted – “grannynapped” - from their home state by other relatives for “medical treatment,” other stated purposes, or they were simply tricked or taken against their will to another state.
Even though the wards desperately wish to be rescued from unlawful detention or abusive situations, those who attempt to rescue them from incarceration in nursing or lockdown facilities (even from their own home) often face kidnapping charges; whereas, the original grannynappers may escape such charges. Why is it the law is so inconsistent?
"Kidnapping" occurs when a person, without lawful authority, physically transports (i.e., moves) another person without that other person's consent, with the intent to use the abduction in connection with some other nefarious objective; in our cases, to control a guardianship in another state.
Federal law must be clarified to reflect the distinction between kidnapping someone for monetary gain or rescuing a loved one from a grannynapping.
In the case involving Rita Hunter (then Public Guardian in Jasper County, Missouri), Hunter had caused a two-week-long incarceration of the daughter and son-in-law of an elderly ward. The daughter merely carried out her mother’s own wishes to be taken to California. They were charged with interfering with custody and other crimes. Litigation against county officers resulted in freeing everyone from their wrongful incarceration. All the charges against the daughter and her husband were eventually dismissed when it was shown that the ward was not even in need of a guardian, and that state law was not followed in making her a ward of the public administrator in the first instance. This particular case is a good example of what needs to be done to resolve this type of situation, which occurs too frequently.
Only as a result of repeated media attention and public outrage did the Connecticut Probate Court free four interstate ”grannynapped” wards: Daniel Gross, Maydelle Trambarulo, Margot Claus and Marilyn Plank.
These cases languished in the courts while legal fees mounted, the wards’ estates diminished, and the families exhausted their own assets fighting unlawful proceedings seemingly unending, with no remedy for recovery of the cost of their efforts.
Guardianship cases can go through the state trial and appellate courts, then the federal trial and appellate courts, all the way to the Supreme Court, where only 1% - or maybe less - of the writs of certiorari presented are granted. That long journey to futility cannot be countenanced further!
18 U.S.C. 241
This section of the federal criminal code\77/ provides for fines and jail when two or more persons conspire to injure (“prevent”) any person from free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.
There are other federal statutes which could also provide remedies for abuse and exploitation. We have given but a few examples. FEDERAL INTERVENTION IS CRITICAL!
Not all lawyers and other fiduciaries are bad, but the bad ones have to be taken out of play – and because the states haven’t done it, the federal government must, in order to property function in ITS role as parens patriae.
__________________
Footnotes:
76 http://www4.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00002254----000-.html
77 18 U.S.C. 241, Conspiracy Against Rights http://www.law.cornell.edu/uscode/18/usc_sec_18_00000241----000-.html
“Guardianship can both prevent and promote elder abuse. On one hand, a guardian can protect an incapacitated person from abuse, neglect and exploitation. Conversely, without sufficient court monitoring, guardian education and standards, guardians may commit elder abuse, neglect or exploitation or fail to protect an incapacitated person from abuse or exploitation by others." (Emphasis added)
All the reports, over the years, make abundantly clear that the core problem with guardianship is the lack of adequate and meaningful monitoring and oversight, permitting rampant abuse.
The primary areas, AARP suggests, for intervention and change on the federal level are the following:
*Improving coordination between federal fiduciary programs (e.g. Social Security representative payees, Department of Veteran Affairs fiduciaries) and state guardianship systems.
*Assisting states in improving guardianship monitoring, which is critical to protect this vulnerable population.
*Enacting the Elder Justice Act as a vehicle for improving the guardianship system and thereby preventing and readdressing elder abuse.
While NASGA supports parts of the Elder Justice Act, we do not believe that waiting for more reports and recommendations as late as two years from potential passage is an adequate answer when the situation is so critical.
What is needed to stop the bleeding, first and foremost, and without further delay, is enforcement of existing law - and new teeth: more and enhanced criminal penalties for wrongdoers and changes in monitoring and oversight.
AARP’s report goes on to say: “GAO recommended that SSA convene an interagency study group to increase the ability of representative payee programs to protect federal benefit payments from misuse. Although VA, HHS, and OPM indicated their willingness to participate in such a study group, SSA disagreed with this recommendation, and its position has not changed.”
Because the SSA has claimed that the coordination between federal and state government is not within their purview, we do not see this as an achievable reform.
To sum up the actual SSA report, apparently, they agree with us: TOO MANY COURTS; TOO MANY DIFFERENT RULES.
Therefore, we need federal intervention in the form of a mandatory guardianship statute covering due process and other rights and protections.
The continuing lack of sufficient reform, transparency and accountability remains the major problem in guardianship today. Without a national standard and mandate set by the federal government, there can be no relief from the guardianship nightmare. In order to protect our citizens, federal law must control!
Too much time has passed - too many victims and families have been injured under state management - to continue to overlook this urgent need, which Congress has already recognized but has done nothing about.
There are laws in place which can and should prevent continuing abuse, but lower federal courts have been unwilling to accept jurisdiction over state-court guardianship cases, relying - too often improperly – on abstention and exception principles, relying on the “probate exception,” when constitutional deprivation and rights violations are clear on the face of the application.
In so doing, they avoid engaging in the massive problems of unlawfulness in the state courts across the country, leaving our members exposed to “rape and plunder” in the guise of guardianship.
Fourth Amendment
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The elderly face the throwaway mentality of age prejudice by younger generations and now, apparently by their own government! They are literally committed to life imprisonment for frivolous reasons, in violation of their Fourth Amendment right to be secure against unreasonable search and seizure.
Fifth Amendment
“No person shall be…deprived of life, liberty, or property, without due process of law.“
Guardianship proceedings, perhaps more than any other legal industry, engage in the most profound deprivation of rights. It is shocking that our society and our government tolerate such infliction on our vulnerable citizenry.
Wrongful denial of personal liberty violates the cherished principles that we have fought for throughout our nation’s history. The most fundamental rights and protections guaranteed by our Constitution are crushed by an overburdened, uncaring or corrupt state judiciary.
With alarming regularity and inadequate “vetting,” probate and other guardianship courts routinely strip guardianship victims of their liberty, their property, and their families for the rest of their lives. Many guardianship proceedings are over in mere minutes, with either no transcript of the proceedings and/or grossly deficient clerical entries in case records. The worst violation of all is the lack of evidence of notice and service of notice in those docket sheets, which would easily render the proceedings void if the victims knew their rights - of if their attorneys were willing to go against the judges before whom they earn a living!
Occasionally, there’s a ray of hope: In the case involving then Public Guardian Rita Hunter previously cited, an order making an individual a ward of the county was voided because her daughter and/or other relatives were not notified of the court proceeding, thus depriving them of constitutional “opportunity.” Their lawyer advised them of their rights, and they pursued their remedy. Media attention on this case and attendant public outrage helped bring about a positive resolve.
The “clear and convincing” evidentiary standard is the one generally required in guardianship proceedings. The problem is that many judges are simply not complying with law. What can an unsuspecting victim or family member know if they're not lawyers and their own lawyer fails to advise them properly by withholding informed consent, to protect themselves against judicial wrath?
Sixth Amendment
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
Civil detainees (guardianship victims) do not enjoy equal rights.
If a person is alleged to be incompetent, is he/she expected to comprehend a complicated legal document and understand fully the ramifications of what will follow? Even a competent person, untrained in law, cannot know. There is no uniform requirement in state protective statutes for representation by counsel for an AIP. While some states require representation, others may even make it discretionary on the part of the judge.
Over time, in certain detainee cases on the civil side, similar rights to representation have been afforded, but not uniformly in the area of guardianship.
Ironically, AIPs - who have committed no crimes - are quickly stripped of all their rights and liberties. The worst deprivation is, almost unbelievably, the right to complain. Stripped of control of their assets, they cannot even retain counsel!
If people who have been accused of crimes, regardless of the severity, have such rights, should not our most vulnerable members of society - facing civil commitment FOR NO WRONGDOING AT ALL - have the same rights?
We need a clear and consistent pronouncement in that area specifically with regard to the aging and disabled, who are subject to unlawful civil commitment in guardianship - and we need it at the federal level.
Our Constitution was ingeniously designed to avoid just this sort of deprivation of liberty, but sadly, its protections have been denied to guardianship victims in many cases.
Fourteenth Amendment
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Because bad guardianship has become a compelling American problem, there is an urgent need for Congress to take action in order to protect all federal rights and protections which are routinely violated with impunity in the state courts.
Habeas Corpus
The writ of habeas corpus is called "the best and only sufficient defense of personal freedom."
The writ serves as an important check on unlawful imprisonment. The basic premise behind habeas corpus ("you have the body") is that people can not be held against their will without just cause (due process of law). In the case of an unlawful detention, filing a petition for a writ of habeas corpus requires that the courts must issue a writ, which forces those responsible to appear and be examined as to the legality of their proceedings.
However, the federal courts have been unwilling to accept habeas petitions in guardianship cases based on the "probate exception." The guardianships we are addressing involve gross violations of federal law - constitutional deprivation, statutory violation, civil and human rights violations – where the probate exception would not apply.
Many victims of unlawful guardianship are adjudicated as incompetent in violation of the Constitution and laws of the United States, yet efforts to free them in the state and federal court systems are often futile and always extremely costly, and time consuming.
28 U.S.C 2254 \76/ requires exhaustion of state procedures of available State corrective process; or circumstances that render such process ineffective to protect the rights of the applicant.
Each of these requirements are problematical for the vulnerable elderly or disabled in state-court guardianships:
1. The advanced age/disability of the potential habeas applicant makes exhaustion of state procedures impossible due to their length and cost; and
2. The advanced age/disability of the potential habeas applicant makes use of state corrective proceedings impossible due to their length and cost; and
3. Advanced age/disability and lack of funds (now so quickly removed form control of merely an alleged incapacitated person ("AIP") by state court, prevent choice of counsel and render any state process not only ineffective, but unavailable. Many of these unlawfully detained individuals will not outlive the requirement of exhaustion of state remedies. It is unfair and unjust to require state exhaustion when a law designed to protect vulnerable individuals is used improperly, to their detriment, and as a means of unjust enrichment by wrongdoers.
Satisfying state exhaustion requirements and going through successive levels of courts to assure life, liberty and property rights is extremely punitive for anyone, but practically impossible or of no value at an advanced age or when someone is suffering from a disabling condition.
We doubt that Congress considers the unlawful detention of innocent vulnerable adults each time they review the habeas statutes. While they are not described in state proceedings as "defendants," they have less rights and protections under state laws than criminals.
On June 12, 2008, the Supreme Court of the United States extended habeas protection to “enemy combatant” detainees held at Guantanamo Bay, Cuba, and ruled that section 7 of the Military Commissions Act of 2006 (MCA) was an unconstitutional suspension of that right. The ruling reminds us of the critical need for availability of habeas in guardianship:
“The Court's ruling was grounded in its recognition that the guarantee of habeas corpus was so central to the Founding that it was one of the few individual rights included in the Constitution even before the Bill of Rights was enacted. As the Court put it: 'The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom.' The Court noted that freedom from arbitrary or baseless imprisonment was one of the core rights established by the 13th Century Magna Carta, and it is the writ of habeas corpus which is the means for enforcing that right. Once habeas corpus is abolished -- as the Military Commissions Act sought to do -- then we return to the pre-Magna Carta days where the Government is free to imprison people with no recourse.”
That is exactly what we are dealing with in unlawful guardianships – no recourse!
Vulnerable U.S. citizens - who are neither criminals nor terrorists - are unable to find a remedy in the very state court system which is knowingly, willfully, and deliberately violating their rights on a scale of epidemic proportions.
Q. Are our vulnerable elderly citizens criminals?
A. No.
Q. Are they subjected to unlawful restraint?
A. Yes.
Q. Are they terrorists?
A. No. THEY are being terrorized!
Q. Should they have at least equal rights as enemy combatants?
A. Yes.
Interstate Grannynapping – “Kidnapping” or “Rescuing”?
A number of our members have had their elderly relatives abducted – “grannynapped” - from their home state by other relatives for “medical treatment,” other stated purposes, or they were simply tricked or taken against their will to another state.
Even though the wards desperately wish to be rescued from unlawful detention or abusive situations, those who attempt to rescue them from incarceration in nursing or lockdown facilities (even from their own home) often face kidnapping charges; whereas, the original grannynappers may escape such charges. Why is it the law is so inconsistent?
"Kidnapping" occurs when a person, without lawful authority, physically transports (i.e., moves) another person without that other person's consent, with the intent to use the abduction in connection with some other nefarious objective; in our cases, to control a guardianship in another state.
Federal law must be clarified to reflect the distinction between kidnapping someone for monetary gain or rescuing a loved one from a grannynapping.
In the case involving Rita Hunter (then Public Guardian in Jasper County, Missouri), Hunter had caused a two-week-long incarceration of the daughter and son-in-law of an elderly ward. The daughter merely carried out her mother’s own wishes to be taken to California. They were charged with interfering with custody and other crimes. Litigation against county officers resulted in freeing everyone from their wrongful incarceration. All the charges against the daughter and her husband were eventually dismissed when it was shown that the ward was not even in need of a guardian, and that state law was not followed in making her a ward of the public administrator in the first instance. This particular case is a good example of what needs to be done to resolve this type of situation, which occurs too frequently.
Only as a result of repeated media attention and public outrage did the Connecticut Probate Court free four interstate ”grannynapped” wards: Daniel Gross, Maydelle Trambarulo, Margot Claus and Marilyn Plank.
These cases languished in the courts while legal fees mounted, the wards’ estates diminished, and the families exhausted their own assets fighting unlawful proceedings seemingly unending, with no remedy for recovery of the cost of their efforts.
Guardianship cases can go through the state trial and appellate courts, then the federal trial and appellate courts, all the way to the Supreme Court, where only 1% - or maybe less - of the writs of certiorari presented are granted. That long journey to futility cannot be countenanced further!
18 U.S.C. 241
This section of the federal criminal code\77/ provides for fines and jail when two or more persons conspire to injure (“prevent”) any person from free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.
There are other federal statutes which could also provide remedies for abuse and exploitation. We have given but a few examples. FEDERAL INTERVENTION IS CRITICAL!
Not all lawyers and other fiduciaries are bad, but the bad ones have to be taken out of play – and because the states haven’t done it, the federal government must, in order to property function in ITS role as parens patriae.
__________________
Footnotes:
76 http://www4.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00002254----000-.html
77 18 U.S.C. 241, Conspiracy Against Rights http://www.law.cornell.edu/uscode/18/usc_sec_18_00000241----000-.html