Forbidden: Basic Human Rights Denied Under Guardianship
By TLB Contributing Writer: Terri LaPoint
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.
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.”
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:
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.
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.
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.
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.
To learn more about guardianship abuse, see:
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