I wish to thank Tim for writing this wonderful letter regarding the state of guardianship.
I also want many to note that Tim writes as well or better than most lawyers, especially in guardianship.
Catherine Falk, Marcia Southwick, Kerry Kasem
In re: Legislative Proposal
Dear fellow advocates,
With all sincerity I applaud your efforts, bravery and dedication to bringing about change in the practices of adult guardianship and elder care. I know the story of each of you and in spite of what might be our differences in how to go about bringing change, the one thing I believe we all stand in unity on is that this madness we know and have experienced has to stop.
Our parents and disabled loved ones’ deserve better, and with this in mind I wish to propose the following legislative effort I would support. MANDATORY appeal of all guardianship appointments1 — and here is why;
“`From the time a person is adjudged to be distracted and incapable of caring for his property and effects, until, if ever, he is adjudged to be restored, he has no more legal power to act for himself than as if he were dead … ‘” (quoting: Turner, J. concurring – In re Estate of Doyle, 838 N.E.2d 355 (2005), citing, In re Estate of Kutchins, 169 Ill.App.3d 641, 645-46, 120 Ill.Dec. 114, 523 N.E.2d 1025, 1028 (1988), quoting Bradshaw v. Lucas, 214 Ill.App. 218, 223 (1919). (emphasis added)
The appointment of a guardian is a death sentence, and sadly many of us can today bear witness to the fact that our parents and disabled loved ones’ are in fact dying2 — while held in and under the captivity of a guardianship or other form of discriminatory and unlawful restraint. In addition, for many of you the “parent/child” relationship has likewise been executed3 by a pack of indifferent bigots and thugs who care more about the money involved than they do the terror and horror inflicted while you are being forced under threat and retaliation to witness the lynching4 and crucifixionlike5 treatment of our loved ones’.
1. I would go so far as to say that a mandatory appeal should lie “at all significant stages of the proceedings” (citation omitted).
2. “Medical murder” is not a concept foreign to our country and social policies. See Dr. P. Breggin – The Role of Psychiatry in the Holocaust (1993) at p. 3. The Ohio Supreme Court has recognized that court orders terminating the parent/ child relationship are the equivalent of a family court death sentence. See In re Hayes, 79 Ohio St.3d 46; 679 NE 2d 680 (1997).
4. Not unlike the slave of past history, in adult guardianship, the ward is chained to an impediment from which they cannot readily escape and the family is forced to watch as the slave-master whips the slave, and terrorized the family, to comply.
5. A few years back in discussion with Danny Tate – himself a ward/victim of Southern Baptist upbringing – I commented to his lamenting, no disrespect intended – “[N]ow you know what Christ felt like when he was hanging on the cross while others sat nearby casting lots for his goods.” For those of you who are Christian believers’ – see, Luke 11:46 and 11:52.
As a “ward” 6 myself – someone on the inside looking out – I can tell you that access to the already existing appeal and review process7 is first and foremost a way of ending this madness. In fact, I will go so far and say that for the ‘ward’ under guardianship access to the courts period is very high on the list of what we lack most8 –
In sum, and for the sake of brevity – a capital murder defendant facing the death penalty has an automatic MANDATORY appeal – a check system built into the process to check the process itself before ever taking a life. In contrast and in the guardianship arena lives are being lost, death sentences are being handed out – often times ex parte9 — and the likelihood of a ‘ward’ ever seeing an appeal and review process is at best next to non-existent.10
In close, legislation to include a MANDATORY appeal in all guardianship cases is legislation I would support and I believe such an effort, once successful, would serve as the first step and front line defense to stopping the madness and suffering we have all been compelled to endure.
Thank you kindly and in advance for your valuable time and attention. If ever you wish to expound upon this discussion point I am always readily available to talk about solutions that fix the problems at their root cause.
6. For those who may not know – a “ward” is a person for whom a guardian has been appointed.
7. In Lane v. Brown, 372 U.S. 477 (1963) the Supreme Court held that “where the state’s own processes substantially impair and impede a litigant’s access to an already existing appeal and review process such processes are unconstitutional.” — and I’ll expound upon this reasoning to add – where that states’ own processes, based solely upon an individual’s disability, substantially impair and impede a disabled litigant’s access to an already existing appeal and review process, such processes are without question, because they are already deemed unconstitutional, patently discriminatory in violation of Title II of the Americans’ With Disabilities Act 1990 (as amended).
8. There exists an inherent conflict of interest between the appointed guardian and the ward where the right to appeal is found. See Matter of Aho, 39 NY 2d 241 (NY Ct. App. 1976). [For those who do not know in NY the Court of Appeals is their state’s highest court and their county trial courts are called the Supreme Court]
9. Most guardianships begin with what is termed to be “a pre-hearing deprivation” for the ward, standing in their own right, never has “a post-deprivation remedy”. This is significant in any constitutional discussion of guardianship and due process.
10. For a ward the right to an appeal is merely illusory because the right to appeal as a ward and on behalf of the ward is in the hands of the appointed guardian, and what are the odds that an appointed guardian is ever going to appeal a decision which they themselves made and imposed upon the disabled ward. See Aho, supra.