Notes from Dr. Sam Sugar/Andy Ostrowski show.
While I did not listen to the entire show, I did hear the vast majority of it. All in all, it was an excellent discussion of some of the most insidious problems in our nation’s probate courts.
Dr. Sugar started out with some sort of strange discussion of courts of equity vs. courts of law. He seemed to blame many of the problems in probate on a strange notion that a probate court is a court of equity and that means it need not necessarily follow the law. He thought that a court of law had to follow the law, but a court of equity did not in fact have to follow the law.
I have never, ever, heard a probate court ever issue a court decision to that effect. I have had pro se clients, who have never been to law school tell me they have studied the law, read numerous book and tell me that theory of law and how courts of equity are somehow magically different from all the other courts, but I have never, ever heard a judge or a law professor say that. Ever. Nor have I ever heard an attorney appearing in probate say, “your honor, this is a court of equity and there fore you need not necessarily follow the law as written.” It has never happened. I have never seen it happen.
In the US, the case law controls and the courts must follow the law. In Illinois (as in most states) the Probate court is created by law, not by the sovereign. This makes it a court of law. It only exist because the law created it by having the state legislature pass a law creating both the court and the law for that court. In the U.S., courts do not pass laws or legislate anything. They carry out the laws as they are written.
It is not true that a “court of equity” can do anything or that it is somehow different from other court divisions such as criminal, juvenile, family court (aka break up the family court), law or municipal or small claims. They are now all the same, created by the law and given laws to follow. If the law is clear, the court must follow the law as written. If the law is unclear or there are nuances not set forth in the law, then the court follows case law which can address nuances.
However, it is not true at all the Judge can just make stuff up. If he does that, s/he is corrupt. A judge follows the law and the case law. If the judge is not doing that, they s/he needs to be reported and kicked out.
Dr. Sugar did mention that in abusive guardianships where the elderly are abused, if you go to the FBI they will say they cannot get involved because it’s a state issue or a civil issue. The local police (that are often tied in) will also say that it is a state court issue and they cannot get involved. I think most people know this is a facade and the FBI and the local police are generally tied into powerful people in the court system and they don’t want to get involved because they do not want to step on anyone’s toes, and the probate court system tends to have some especially powerful toes.
Dr. Sugar believes that by passing a law saying that the police may investigate and prosecute crimes by those in a guardianship, things will change. I think not and this is the reason: the law is already there, and the reason why it is being ignored is because the police are tied into the people making money off of the guardianship–the lawyers and the guardians. Both guardians and the lawyers contribute to the campaign funds of the judges and prosecutors which keeps them aligned with the lawyers and guardians. Both the lawyers and the guardians can pass to the judges seen and unseen benefits for allowing them to do as they please with the assets of a disabled person.
Andy Ostrowski believes that the main problem with the probate courts is that have not reigned in these abuses. I think that is simplistic and ignores the corruption and cronyism of a tied in and tied up system with a whole lot of money and power. I have alway asserted that 90% of the problems in probate will disappear by simply installing an FBI agent on the same floor as any probate court and making sure they do their job to root out and eliminate probate court corruption.
Dr. Sugar believes that we need to get in place judges and lawyers that do not tolerate the abuse of the elderly in probate. He believes that the judges are not well experienced and says they are only a step above traffic court judges. I disagree. The judges I have seen are very intelligent, but often feign they don’t see or don’t know. The vast majority of judges I see are not only very intelligent, but very skilled at manipulation of their courts to favor the crony lawyers and professional guardians and protect them instead of the elderly and the abuse continues–the drugging, the isolation, the draining of massive amounts of attorneys fees, tied in (anti) social workers, case (mis) managers, guardians (of death and injury). They all protect themselves and they get the judges to help them. Time after time, I have seen my reports of abuse being handed back to the perpetrators of the abuse, and while the judge pretends not to understand, s/he will do an excellent job talking about intracacies of probate law and cases. It always baffles me how the judges somehow manage to know the most obscure case quotes and case details, but they get a report of abuse and hand the abuse report right back to the abusers and command them to investigate it–as if every one of their brain cells sudden flew out the window.
Dr. Sugar complains that no one can get statistics on how many guardians and tied in service providers are “servicing” the probate courts. One could get statistics, but these are hidden from the public under the (false) guise of privacy for the disabled.
No due process, no civil procedure–it turns into an abusive system that is vertically and horizontally integrated.
It is a gigantic industry. Dr. Sugar claims Utah is supposed to be a good state because the Mormons won’t stand for these abuses. But Florida, California, etc. have massive problems. Once a state gets the problem, however; due to massive integrations into many industries–care giving, nursing homes, hospitals, etc., the problem is nearly impossible to get rid of–very much akin to getting a dose of cochroachs or bed bugs in your home. Once there, they are almost impossible to get rid of.
Www.aaapg.net is very helpful on abuses in guardianships.
It was an excellent program and I am hoping to get a permalink for the show.