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Forbidden: Basic Human Rights Denied Under Guardianship

By Terri LaPoint, Real News Spark
October 4, 2021

When a person commits heinous crimes, it should come as no surprise when a criminal court sentences them and they lose many of their rights. However, when a person is injured in an accident, develops an impairment, or simply grows older, they too can lose many, even most, of their basic human rights under a probate court.

There are federal and state laws in place which theoretically protect those under guardianship, but when these laws are violated, who will know about it? Those within the system have lost their voice.

Who speaks out for them?

In a criminal case, the proceedings are held in open court where they can be scrutinized by the public and the media, which lends a level of transparency and protection for even the most wicked of offenders. In probate court, as in family and juvenile court, proceedings are often hidden behind policies of “confidentiality.” Transparency vanishes.

If laws are broken, or if there are violations of due process or basic human rights, no one outside the case may ever find out about it.

If a person is declared “incompetent” in such a court, whether or not they truly are, there is often no recourse. The individual, or “ward” as they are now known, is left at the mercy of a guardian or conservator. Though the wishes and best interests of the ward are supposed to be protected, sometimes they are not. No matter how egregious the depravation of their rights, because they have been declared incompetent, the ward is now essentially a persona non grata. Their cries for help fall on deaf ears.

“Guardianship is a legal process used to protect individuals who are unable to care for their own well-being due to infancy, incapacity or disability,” according to Justia Law. It was never intended to be a mechanism for imprisonment. Yet in too many cases, that is what it has become.

A petition to incarcerate someone via probate court may be made by disgruntled employees, by family members disagreeing over decisions, or by a doctor dissatisfied with a person making medical choices with which they disagree. They can be made over false or exaggerated allegations.

Nonetheless, the result is that someone loses their rights to make basic decisions in life.

Examples of failures of the guardianship system are abundant. The stories are increasingly being covered in the media, thanks to high-profile cases such as Britney Spears, Joann Bashinsky — the Golden Flake heiress, and Casey Kasem. There are thousands of lesser-known victims all over the United States. The PPJ Gazette & TS Radio Network covers a new story almost weekly, and has done so for almost 15 years. Former NYC Police Commissioner Bernard Kerik has written several pieces for Newsmax exposing the silent epidemic of guardianship abuse, calling on local and national governments to fight it.

Injury Results in Guardianship

Bob (a real person, but not his real name) was, at one time, the highly respected founder of a ministry known around the world. His work has impacted the lives of many, both directly and indirectly. He was injured in an accident which left him with chronic pain and cognitive impairments. He had to retire from his position with the ministry.

As the years went by, Bob voiced concerns with family and friends that another family member was making decisions resulting in him steadily losing his independence and his voice. He learned this family member was making plans to place him into an institution. In an effort to protect his freedom, he appointed a long-time friend as his Power of Attorney just before the family member filed for guardianship.

A probate court sent him to be evaluated by a medical provider who worked with the court. The doctor reported cognitive limitations and some dementia. Bob’s POA was set aside, and the judge declared Bob “incapacitated.” He was placed under guardianship and moved to a nursing home against his wishes.

Family and friends were told on social media that Bob had a brain disorder which caused rapid decline and that he would not likely be alive in five years.

That time has come and gone, and Bob is still around. Some of the people who care about him expected to see a severely incapacitated individual when they visited him, but were surprised to see he still had a quick wit and could carry on intelligent conversations on a wide variety of topics.

As is the case in many guardianship stories, family members do not agree about Bob’s care. Some insist that he is in the proper place and that he cannot take care of himself at all. Others insist that he is capable of a great deal more than they were led to believe. They would like for him to live with family members who can help care for him, or at least in a less restrictive setting than a nursing home.

There is no dispute that Bob has difficulties and needs care, but there is disagreement between those with power over his life and other family members who love him over where he should live and what kind of care is appropriate.

Loss of Freedom

One of the biggest concern of those loved ones is the loss of Bob’s voice in what happens to him. Though he lost his freedom several years ago, Bob has not once been able to appear in court himself.

At least twice, he has been dressed in a suit, waiting to be picked up, ready to appear before the judge, but he was not allowed to go. He wanted to be there and have his voice heard.

Many of his family and friends have been banned off and on by his guardian from visiting him after they questioned his care and expressed concerns over decisions made by the guardian. Though he requests to see them, and though he called some of them almost daily when he found a way to have access to a phone, the guardian has told the facilities that certain people are not allowed to visit. These restrictions were happening before Covid.

There have been times he has been moved to a different facility, and it has taken months for loved ones to figure out where he was.

One family member reports regularly enjoying eight to ten hour visits with Bob until being banned. At the same time, the guardian visited infrequently and typically stayed a half hour or hour, leaving Bob feeling isolated and abandoned in a facility with much older people with far less cognitive ability than he has.

How is it that a guardian, whether a court-appointed guardian, a sibling, a child, or a spouse, can decide and decree that certain relationships are forbidden? Yet it happens every day in every state.

Bob would like to attend church. It would seem reasonable that the founder of a world-wide ministry might be afforded this opportunity. Indeed, he has begged many times to be able to go to church. His guardian says no. Thus a man whose life used to revolve around the church has not been permitted to go for several years.

Bob has repeatedly requested mental health counseling to be able to process the losses and trauma he has experienced. Doctors have recommended this as well, but that request has been denied on the basis that someone with dementia would have nothing to talk about in counseling.

Since the diagnosis which essentially ended his freedom, there has been little follow-up treatment, other than an abundance of medications. In the words of one family member, they are keeping Bob “medicated and warehoused.” They would like to see medical efforts to improve his condition, as well as pain management and physical therapy.

Bob would like to have a voice in his own treatment options. He has repeatedly requested a review of his medical condition and has expressed the belief that his diagnosis may have been in error.

His hearing is fine, but he needs glasses to read. When a relative asked for him to have an updated eye exam for new glasses, the guardian said they could not afford to keep replacing glasses. The guardian stated in court that people with dementia don’t read. However, Bob was able to read, at least at that time. There is video footage of him reading out loud quite well, as long as the print was large enough. The problem was with his vision, not his intellectual ability to read.

Many wards under guardianship are denied such basics as glasses, hearing aids, phone access, or the ability to send or receive mail. Image by Rick Bella from Pixabay

Bob would like to have a cell phone and be able to write and correspond with friends and family as he once did. At times he was not permitted access to send or receive mail. According to FindLaw, even hardened criminals have the right to receive mail, but “prison officials are entitled to open mail directed to inmates to ensure that it does not contain any illegal items or weapons, but may not censor” the mail for content they don’t like.

He wants to be able to leave the facility once in awhile to go out to eat, to the park, or to the beach. He has family members who would love nothing better than to take him on such outings.

Staff at the facilities have often asked family members why Bob’s guardian placed him in restrictive facilities when the other residents were much more impaired than him. One nurse described him as being more like a volunteer than a resident because of how he encouraged and uplifted other residents.

In short, Bob has expressed to numerous family members and friends that he feel like a prisoner, and he despairs of every being free again. One of his relatives wrote, “It has been said we think nothing is wrong with [Bob]. On the contrary, we know he has impairments, but we don’t think that means he should be locked up and the key be thrown away.”

At one visit, the relative found a heartbreaking note Bob had written:

“No one told me I would stay in this facility until I die.”

Bob

He has long since passed the point at which the original prognosis said he would die from his brain illness. Bob is far from being a vegetable; he is mobile and he retains more cognitive function than some people we may see walking around freely.

One family member stated recently, “There’s no diagnosis on planet earth that could justify how he is being treated.”

There Are (Widely Ignored) Guardianship Standards of Practice

The National Guardianship Association (NGA) adopted “Standards of Practice” in 2000. The Fourth Edition was published in 2013, and those standards are still in place today. There are thousands of victims of guardianship abuse who would be overjoyed if these standards were consistently followed. They are not.

A guardian is not to act in accordance with what the guardian wants, but the decisions for the person under guardianship should be in accordance with what that individual wants and needs. Interestingly, the standards state, “First, the guardian shall ask the person what he or she wants.” If they cannot express what they want, decisions should be made based upon “the decision the person would have made when the person had capacity….”

It is only in cases where the guardian cannot ascertain what the person wants or would have wanted that the guardian is to make decisions in the ward’s “best interest.” Even then, “Best Interest” is defined:

  1. Best Interest is the principle of decision‐making that should be used only when the person has never had capacity, when the person’s goals and preferences cannot be ascertained even with support, or when following the person’s wishes would cause substantial harm to the person.
  2. The Best Interest principle requires the guardian to consider the least intrusive, most normalizing, and least restrictive course of action possible to provide for the needs of the person.
  3. The Best Interest principle requires the guardian to consider past practice and evaluate reliable evidence of likely choices.

The document defines “least restrictive alternative” as a “mechanism, course of action, or environment that allows the person to live, learn, and work in a setting that places as few limits as possible on the person’s rights and personal freedoms as appropriate to meet the needs of the person.”

Due process is guaranteed in the United States Constitution, but that concept too is elusive in many probate and family courts.

It is apparent that these and other principles in the Standards of Practice for guardians are not being followed in Bob’s case or in any of the other guardianship cases I have investigated over the years.

Unfortunately, stories like Bob’s are not rare. At what point is it justifiable to remove a person’s basic human rights? At what level of mental decline is it acceptable to eliminate all semblance of choice from a person’s life? While we surely must protect the most vulnerable among us, that protection cannot come at the cost of their dignity and humanity.

10 thoughts on “Forbidden: Basic Human Rights Denied Under Guardianship

  1. That’s exactly what happens in every Frudulant gurandship. Isolate the victim which is abusive! Liquidate their estate! Problem court & gurandship is a fate worse than death!
    My Aunt Susan Terranova is a victim of Montgomery Alabama Probate court. Via judge Steven Reed their now Mayor! Her legal guarid J Ed Parish Jr would NOT allow her to leave 5 years ago to return home & she was medically kidnapped by AL with an letter from Dr Epperson. She can never leave until she passes. She has a FB page justice for Susan Terranova. I will advocate for her even after thry kill her. Follow the money it’s all aboit their greed! I’m sorry for all families that are inflicted with this pain!

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  2. I have a situation exactly like this today. Exactly. Tha “ward” is my friend, an 87 yr old gentleman. His kids just popped up one day, got the conservatorship drawn up, took his house, car, internet gone, put in a facility.I am not allowed to visit my friend. My heart is breaking for this man.

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  3. My Aunt had a Guardian given to her and this woman did not take care of her and ended up taking her money and sold her jewelry and personal items while in a Nursing Home. The family could never talk to her about my Aunt’s health. We found out after a cousin went to court to get guardianship that she had multiple clients that she had done this to. Many had no family. This women had sold my aunt’s things to take her boyfriend on a cruise. Preposterous! Yes, something needs to be done about people like these lowlifes pretending to be something they aren’t. I know there are probably some that really care about their clients but the bad need to be weeded out!

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  4. My aunt was in a situation like this due to malpractice of a doctor the first guardian was a attorney appointed by the courts that almost lost everything she was awarded.He was eventually removed and the courts appointed another attorney that wont even speak to the family about whats going on he also is paying 5 other attorneys to help him which is not necessary and the courts allow this to happen its not just Jefferson County its very bad in Shelby County and all over. Its awful for this to be happening and you cant do anything, and cant get the help you need.

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  5. I have an incredibly similar experience while undergoing chemotherapy. My decline of more chemo was translated into a “suicide” threat. My family knew exactly how to obtain control over me because I have a master’s degree in counseling/psych/education. I was starving to death & losing my vision (among other chemo related side effects). My family/S.O., local hospital, law enforcement AND the courthouse had me arrested & EOD’d 3 different times with accusations of substance abuse & attention seeking. My entire credibility & accomplishments were completely destroyed from a “pride” narcissism family/authoritarian issue. My refusal of chemotherapy does NOT constitute a “threat” of suicide. I had an extremely tumultuous 3 years. My life is completely changed because of opinions. Even the psych wards/counselors wouldn’t listen to my side. My confidentiality was completely breached. My health is in further jeopardy now & will never recover.
    At least the insurance companies are picking up on it & no longer covering many claims as I never recieved ANY type counseling sessions at my request. I didn’t spend more than an hour with the doctors & I was locked up in the ward almost 3 months total. Three weeks spent in solitary in jail sleeping on concrete with extremely progressed rheumatoid arthritis, multiple myeloma cancer, amongst other health issues that require medical attention that I was repeatedly denied all because I was accused of breaking & entering that didn’t happen. General practice M.D.’s should NOT be allowed to write psych meds!! There is NO mandatory appropriate follow up with counseling. That should be a requirement! Why do we require counselors/therapists go to school but then hand their patients to a general practice M.D.?
    These medications are EXTREMELY dangerous! I went into heart failure so many times I have permanent heart damage. These meds don’t ONLY slow the brain down. They also slow down the body. That’s how people end up dying on misdiagnosis. I also didn’t have a legitimate diagnosis yet forced to take psych meds while locked up. There’s a severe need of an evaluation to be done. The absolute ONLY THING psych facilities are doing is sedating people enough to return to society & be more “tolerant” of abuse. This practice has become completely counterproductive. I’ve never in my life been suicidal but our protocol to “preventing” it would’ve damn sure made me carry it out after what I was put through by my family, law enforcement, hospital & courthouse. My oncologist was out of state. Therefore after the first “suicide” arrest (I was jerked out of my bed from a nap & arrested in broad daylight in my underwear…) the local hospital REFUSED to contact my oncologist while collectively working with my family to keep it classified as “suicide”. My oncologist requested to be contacted before any other further action. That was 100% disregarded. I was actually suffering from very typical, standard side effects of that particular chemo & was dying of poisoning & starvation. I couldn’t keep food down long enough to digest. My family didn’t hesitate in minimizing my symptoms & side effects & couldn’t wait to repeatedly have me arrested & labeled “crazy” because of their own insecure pride. This is becoming an extremely dangerous issue as there will be some incredible repercussions for “messing” with psych meds so blase`. I most definitely have more than just a “few” suits I could file. I’d rather the medical board step in & start doing the appropriate research instead of this crackerjack “guess work” we’ve been conducting. The mental health world is horrendous. I have more than enough evidence, experience & education to prove it. We are 100% NOT utilizing any of our mental health practices the manner as intended. I never go into battle without enough ammunition & man… do I have an arsenal of it. I’m dying to have a discussion with people that can actually process what the hell we’re doing to people & work to change this around. You know it’s bad when even the insurance companies are claiming “fraud”. I can most certainly provide more than enough elementary biology to support me. That wasn’t the hard part. It was when I realized I was dealing with people that don’t listen to learn. I was talking to people that listen to retort. The only reason this profession is being overlooked is because of what this article is implying… the victims are dismissed because they’ve already been classified as not capable so of course…. who’s going to listen to someone classified “incompetent”? That’s the exact general public’s opinion.

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  6. Sadly in this country we put away the elderly and the people that nobody wants to deal with. It is a disgrace that we herd them away. My grandmother was put in a state run nursing home and when I would go visit her I would have tears in my eyes. They have a room called ” the activity room ” its a tiny room with a TV up on the corner of the wall and it literally is wheelchair after wheelchair lined up with these people just sitting there. I heard one woman saying help me I need to use the bathroom she was ignored so I told the greasyhaired pimple faced kid said just leave her she always says that she needs the bathroom. My own grandmother had a rail and alarm on her bed because she had dementia and we went to see her and she had huge bumps on the very top of her head when we asked what happened they said she fell out of her bed. I asked how could she fall she has rails and an alarm, they had no answer. In my heart I know they were hitting her.( even if she did fall out of bed she would not have welts and cuts to the very top of her head. The only way I could have peace was knowing that she had no idea what was going on. My stomach hurts every time I think about her being there. She passed away and after that I found out that the place she was in was closed down. I hope the people that worked there were prosecuted but they very rarely are. I would NEVER have my Dad put away in a place like that. Too many of these places have abuse going on and they hardly ever do anything about it.what a shame that our family members end up in a terrible place like that because they can’t afford the nice places. My grandmother was in a beautiful place until her money ran out. As soon as she got to the state run place they put her in a wheelchair and she never walked again after that. She was a beautiful soul in this world and seeing her end up like that was heartbreaking 💔😥🙏

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  7. I am the conservator for my father. I don’t see how any of this is possible if the court does it’s job. My dad’s account gets audited to make sure that the money is only being spent on him. Social workers stop by to see how he is living and if he is happy and well cared for. My dad doesn’t even realize that he is in a facility, he believes that he owns the place. I know that he is doing much better in there than he was at home because he wasn’t eating at home. The only person that I forbid them to let speak to him is the one that stole $250,000 from his accounts. That was why APS called me and told me that I needed to get conservatorship over him. The only other change that I made was to cut off his beer because the doctors said that it wasn’t good to mix it with his dementia. I gave him Pepsi instead and he loves it, doesn’t remember the beer now, but I could tell that he was struggling even more if he didn’t have a can in his hand.

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  8. Widely abused Standard of Practice. Too often guardians use Block Billing – see http://www.ofgblog.com.
    (22) PROFESSIONAL GUARDIANSHIP SERVICE FEES.
    (a) All fees related to the duties of the guardianship must be reviewed and approved by the court. Professional Guardians shall apprise the court of all fees paid to Professional Guardians relating to guardianship services, including fees paid from sources outside of the guardianship. Fees must be reasonable and be related only to guardianship duties. Petitions for Professional Guardian fees must include the source of payment (e.g. guardianship, trust, etc.), if known.
    (b) Fees or expenses charged by a Professional Guardian shall be documented through billings maintained by the Professional Guardian as required by Section 744.108, F.S., which shall clearly and accurately state:
    1. The date and time spent on a task, (“task” is singular)
    2. The duty performed, (“duty” is singular)
    3. The expenses incurred,
    4. The third parties involved; and,
    5. The identification of the individual who performed the duty (e.g., guardian, staff, volunteer).
    (c) All parties should respect the privacy and dignity of the person when disclosing information regarding fees.

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