From Tim Lahrman-Guardianship–the Final Solution

Thanks for sending me your thoughts on guardianship and permitting me to publish this.

GUARDIANSHIP
The Final Solution
By: Tim Lahrman
I am really tired of all the banter about, argument regarding and pandering to, the issue of guardianship.[fn.1] For those reading this who many not know who I am – I am but a ward a mere child of the king, I have lived and survived the last nearly thirty years in and under a guardianship in the state of Indiana.[fn.2] I live, breath, eat sleep and s*** guardianship and yet as difficult as the experience has been so too has it been enlightening and inspiring.
It’s Sunday August 7, 2016 — I just read an article on the NASGA blog written by Erica Woods, J.D. at the American Bar Association and I am thoroughly disgusted by what I read.[fn.3] Why, pray-tell, would Erica Woods cite to the NGA best practices guidelines in an article titled “What is a guardian supposed to do, Anyway”.[fn.4] Since when did the National Guardianship Association [NGA] set the standards for and make the laws governing guardians?[fn.5] The NGA is a “trade association” promoting an industry of professional guardianships – they are in essence a “lobbying” voice who have postured themselves to be self-assigned experts advising the state court systems. But my biggest problem with Erica’s article lies in the fact that as an attorney — a ranking member of the ABA — she said NOTHING about “the rule of law” which already governs and instructs guardians and the courts. In sum, why did Erica not talk about “the law”, or the solution.
Because I am aging quickly and tiring of the constant bickering and arguing about guardianship I am going to put the following in writing — and let the chips fall where they may.
There is no question that guardianship is in derogation of the common law and therefore strict compliance with the statutes is required of courts, judges and their appointed guardians. Guardianship entails a massive curtailment of liberty – yet contrary to popular belief and teaching a person under guardianship does not lose their rights but rather, they lose their “legal capacity” to prosecute and or defend their rights. A person under guardianship is effectively and substantively “un-emancipated”. Once adjudicated incapacitated a person under guardianship
has no more authority or power to act on their own behalf than if they were dead. [fn.6]   So “What is a Guardian Supposed to Do, Anyway” — the answer is simple, follow the law not the NGA guidelines[fn.7]. With that said, contrary to popular belief and teaching, guardians DO NOT ‘decide’ for their ward and the best interests standard often relied upon is NOT the proper legal standard applicable to adult wards and adult guardianship. [fn.8] Accordingly, IF you are involved in an adult guardianship case where the guardian is willy-nilly making decisions based upon the best interests standard and imposing decisions of their own making — you have a court and a guardian who are simply not following the law, certainly not uncommon and not unheard of either. Guardianship is known to be a dangerous law [fn.9], chaos is good for business [fn.10] and I can attests from years of personal experience that the subject of guardianship is well beyond the professional competence and educational experience of most lawyers and judges. [fn.11] Yet on the flip side those few among the bar who do know and understand guardianship are, as we most know, glad to exploit the chaos.
All said however, it is my position that the rule of law governing guardians and their supposed power, their decision making authority, is found in Cruzan v. Dir. Missouri Dept. of Health, 497 U.S. 261 (1990). [fn.12] This is a MUST READ case for anyone dealing with a guardianship case. In Cruzan the Supreme Court sets the standard for how decisions are to be made for and on behalf of incapacitated persons. The significance of Cruzan is that while setting the standard the Supreme Court did so to protect the human dignity and personal autonomy of the incapacitated person. Cruzan expressly says that simply because a person became incapacitated does not mean they lose their rights, their human dignity nor their personal autonomy. For those who do not know the legal lingo personal autonomy includes the right of self determination, the right to choose and/or to have those previously chosen decisions honored.

In sum, I cannot stress upon you enough the significance of Cruzan, read it! Re-read it, highlight it and be ready to demand that any decision a guardian makes be supported by clear and convincing evidence that the decision made is the decision the incapacitated person would have made were they capable of expressing their decision. THAT is the rule of law governing guardians and their decision-making authority. [fn.13]
Now then, applying Cruzan even further – many of your parents and loved had “advance directives”, DPOA, HCPOA(s) and Living Trusts. Well each of these documents/ instruments represents your parent’s previously expressed wishes and directions which, under Cruzan (and other legal theories), are constitutionally protected. Your parents’ all have/had a reasonable expectation to the benefit of these “programs” as provided by your state laws. Under Cruzan your parents’ previously expressed wishes and instructions are to be enforced and honored, not ignored and tossed in the trash Appeals courts in Florida, Indiana and I think Ohio have already ruled that existing valid “advance directives” and DPOA(s) preclude any “need” for a guardianship and absent the “need” no court has jurisdiction to appoint a guardian where none is needed. [fn.14]
Of course we know that in most guardianship cases these courts and judges are not following the law – many are ignoring advance directives, many are trumpeting some exaggerated “family conflict”, many are ordering family members to stay away from the parent, pay for supervision to “visit” your parent, and some of you have even been thrown in jail or at least threatened with jail over these issues. But let’s stop and think here —-[fn.15]
Guardianship is a “service program and activity” of your state. Your parent or loved one under guardianship is clearly a “qualified individual with a disability” who’s “disability [or perceived disability] significantly impairs one or more area of life’s major activities”. The court is a “public entity” providing the “services, programs and activities” of the judiciary and the guardian holds an appointed or elected public office which, on one hand is a “public entity” in and of itself, and on the others hand serves to accommodate and facilitate the “services programs and activities” of both your state’s guardianship program and its judicial services, programs and activities.
All of the quoted phrases in the foregoing paragraph are found in the Americans’ With Disabilities Act 1990 (as amended) (“ADA”). Found at 42 U.S.C. §12101 et seq., the ADA is comprised of five [5] separate titles.

Title I prohibits disability discrimination in employment.

Title II [which concerns us most] prohibits disability discrimination by state and local governments.

Title III prohibits disability discrimination in and by places of “public accommodation”.

Title IV governs telecommunications and

Title V contains various provisions including, anti-retaliation and coercion, a section providing for attorney fees and a section which strips states, and “public entities”, of their 11th amendment sovereign immunity. [fn.16]

This is powerful stuff, very powerful. [fn.17]
When you think about the “services, programs and activities” of a public entity [Title II ADA] the US Supreme Court has written in Tennessee v. Lane, 541 U.S. 509 (2004)18 that, “everything government does is a service program and activity”. The court likewise said and reasoned that “the sole reason government exists is to serve the people.” Hence everything government does is a service, program and activity subject to Title II ADA regulation. With this in mind it is my learned perspective and conclusion that your state laws which provide to the citizens of your state, your parents and loved ones included, the opportunity to participate in and benefit from the states services programs and activities governing “advance directives” i.e. DPOA(s), HCPOA(s), Living Trusts etc. etc., each of these laws, are a separate and distinct “service program and activity” covered under the ADA.

Accordingly, and without going into lengthy explanation and citation to specific ADA regulations, when a state court and state court judge ignores your parents’ advance directives and, because of your loved ones’ disability, excludes your parent and loved one from the benefit of the advanced directive “services programs and activities” which your parent freely chose to access, participate in and reasonably expected to benefit from — this is an act of disability discrimination. The same is true of an appointed guardian who imposes their personal decisions on a ward and/or where a guardian is in breach of their fiduciary duties — each of these events, and more, are acts of disability discrimination (after which and resulting from follows the heinous crimes and abuse that guardianship victims suffer and focus on.)

Upon its passage in 1990, US Senators Tom Harkin and Edward Kennedy hailed the ADA as “the emancipation proclamation for disabled Americans” … stop and think about those words … “emancipation proclamation”, powerful words with meaning. Disability discrimination is rampant in our courts and all through the offices and departments of our “public services”, has been since the day this country was birthed — The history of “wardship” in America is neither pretty nor honorable. The history is not readily and willingly discussed, but I do see quietly in the background of more current events among policy makers who know full well we are right — that they are just not yet ready to apologize and acknowledge their wrongs.

I have witnessed and experienced disability discrimination first hand for the past nearly thirty years. Mike Pence is a bigot in my book — need I say more in this election year.

In close, and because I am struggling to remain brief in this presentation – I’ll return now to Erica Woods’s recent article discussed above and ask the question again – [W]hy is Erica Woods deferring to the NGA guidelines and why, as an attorney, is she not presenting the law and the rule of law which protects us as it already exists? Of course we all know the answer — discussing the issues honestly and truthfully is simply not good for business.
Thank you in advance for your valuable time and consideration. It is my hope by sharing this that each of you find a sense of renewed hope, strength and understanding in what I have just shared. Please know that I hear the cries of all victims, I see the efforts of all the advocates — you have been robbed, stolen from, cheated and lied to — you have been denied the honest services of our government, some of you indeed witnessed the slow murder of your loved ones, you have been terrorized by a ‘klan’ of thugs and arrogant bigots – yes you have, and you did not stand a chance in the fight because you and your loved ones’ have been discriminated against from the get go and all throughout your struggles.
Stopping the disability discrimination [fn.19] — ends the abuse and torment. That’s the final solution. And one last thing before I go — look at the picture of Erica Woods which appears in her article. Nice smile, don’t you think?
Enjoy the song. https://www.youtube.com/watch?v=8CJZcVi5BA4
_____________________________________________________________
1. The terms guardianship and conservatorship are interchangeable.
2. For insight and understanding of Indiana’s adult guardianship system, see; 2012 report by the Indiana Supreme Court Adult Guardianship Task Force found online at http://www.in.gov/judiciary/admin/files/ad-guard-2012-full-report.pdf
3. nasgablog found online at; http://nasga-stopguardianabuse.blogspot.com/
4. Erica Woods’s article online at; http://gero.usc.edu/cda_blog/guardianship.html
5. NGA guidelines; http://www.guardianship.org/documents/Standards_of_Practice.pdf
6. see concurring opinion Turner J. Estate of Doyle, (Illinois App 2005) found online at https://scholar.google.com/scholar_case?case=2566245147644224528&q=estate+of+Doyle&hl=en&as_sdt=4,14
7. For the purposes of this very limited presentation I am taking issue with NGA Standard number 7 found in the file under fn 5 above.
8. For a very clear and insightful explanation of “the best interest standard” as
applied to disabled adults see, In re Storar (NY App 1981) found online at; https://scholar.google.com/scholar_case?case=18181218699167818444&q=Storar&hl=en&as_sdt=4,33
(this case is cited in Cruzan and like Cruzan is a MUST read.)
9. Cut and pasted from Estate of Rosengarten, PA Supreme Court 2005 found online at:
https://scholar.google.com/scholar_case?case=5181348531203054078&q=Rosengarten&hl=en&as_sdt=4,39 “The dangers of the incompetency statute have been recognized since its inception. In re Bryden’s Estate, 211 Pa. 633, 633, 61 A. 250, 250 (1905) (statute allowing for declaration of incompetency “is a dangerous statute” and is “to be administered by the courts with the utmost caution and conservatism.”). It is basic to our jurisprudence that a person’s property is theirs to dispose of as they wish, even if it results in poverty. Id. As the Court stated in Bryden, “[T]he basic principle involved, as laid down in Lines v. Lines, 142 Pa. 149, [is] that a man may do what he pleases with his personal estate during his life. He may even beggar himself and his family if he chooses to commit such an act of folly.” Id. Recently, in In re Hyman, 811 A.2d 605, 608 (Pa.Super. 2002) (quoting Estate of Haertsch, 609 A.2d 1384, 1386 (Pa.Super. 1992)), we noted that the incompetency statute “places a great power in the court. The court has the power to place total control of a person’s affairs in the hands of another. This great power creates the opportunity for great abuse.” The above cited and other provisions of Chapter 55 are tailored to ensure that the incapacitated person’s wishes are honored to the maximum extent possible. In this case, the guardian and the orphans’ court violated this mandate at nearly every conceivable opportunity” .(emphasis added).
10. I recall in the mid-1990’s while attending my paralegal studies program at IUSB
[Indiana University South Bend] I read an article published in US News & World Report written by John Leo (might be Jay Leo I don’t recall) entitled – “The Business of Chaos”. Believe it or not, chaos is an economic development policy and practice.
11. After attending the 3rd World Congress on Adult Guardianship held in Arlington
VA in May of 2014, I had the honor and pleasure in June 2014 of interviewing Mr. Charles Sabitino who chairs the ABA Commission on Law & Aging. Mr. Sabitino is likewise an adjunct professor of law at Georgetown University. The point of my interview focused on “educational standards, CLE programs and the like, as relating
to the law of guardianship and the “bar communities” preparedness to provide professionally competent services to consumers of legal services in matters of guardianship”. It was Mr. Sabitino’s opinion that the “bar community” is woefully
ill-prepared and less than sufficiently trained and educated in matters of guardianship law. In addition, over the course of nearly 30 years, I have personally spoken to and consulted with hundreds of lawyers, law professors and even judges/former judges, and more times than not these are the words I hear —- “you certainly know more
about this than I do.”
12. The Cruzan case can be found online at;
http://scholar.google.com/scholar_case?case=8467471114673973761&q=Cruzan+v.+Dir&hl=en&as_sdt=4,60
13. For another insightful case involving the decision-making authority of appointed guardians — a case involving a NY man held against his will in a CT nursing home — see;
http://scholar.google.com/scholar_case?case=10659184349541987571&q=%22Gross+v+Rell%22&hl=en&as_sdt=4,7 5,99,107,122,138,162,286,287,288,289,349,350,351,352,380 [Gross v Rell , 695 F.3d 211 (2nd Cir. 2012)
** Note in this decision what the court says of the family’s efforts and “visits” with their father at the nursing home. Note too that the Court found unpersuasive the guardian’s argument which bemoaned the duty of a guardian to get
a court order for every decision the guardian makes. In sum, the 2nd Circuit Court of Appeals found that a guardian MUST seek a specific court order for each of their decisions, because that is their job.
14. There are a number of arguments that can be made why these adult guardianships are unlawful and unconstitutional. One such argument can be found in Scott v. McNeal, 154 U.S. 34 (1894) where the US Supreme Court held it unconstitutional (a violation of due process) to probate the property of a living person. In so finding the court also reasoned that “death” was the jurisdictional fact necessarily required to invoke the jurisdiction of a probate authority. Found online at: http://scholar.google.com/scholar_case?case=3771281918223549471&q=Scott+v+McNeal&hl=en&as_sdt=4,60
15. An old friend of mine, now deceased, said to me more than once — “[S]ometimes
it is not just what they did that is their undoing but rather, look for what they did not
do that they were supposed to do.” The man was a genius, dual degrees in psychology and engineering [he dropped a master’s psych program with 4 credit hours remaining – disgusted by what he had learned] he taught me how to research and develop my analytical mind. I miss our long hours of conversation and laughs about life.
16. In its entirety the ADA is a voluminous statute very hard to read and comprehend. In a nutshell, Title II of the ADA protects disabled individuals from disability discrimination and guarantees to them the “equal opportunity” to: (i) access, (ii) participate in, (iii) benefit from; and, (iv) effectively communicate with, equally effectively as do others, the services programs and activities of state and local government. The DOJ has promulgated regulations implementing our nation’s Title
II ADA anti-discrimination public policy. Found in and under 28 C.F.R. Part 35, a
violation of any Part 35 regulations is an act of discrimination in violation of the ADA.
I can assure you all with almost 99% certainty, your guardianship cases are all fraught with ADA violations.
17. Being called out as a bigot is not a “good career move” – look around, Paula Dean admits she used the n-word thirty years ago and she gets “socially sanctioned” and suffered career complications that haunted her for years. Same thing happened to comedian Michael Richards (Kramer from Seinfeld), he climbs up on stage goes into
a bigoted racists rant and his career tanks. Same thing happened to an Indiana Judge facing formal disciplinary charges for violating the ADA — he took early retirement, retired in good standing, to spare being publically called out as a bigot. In a case in Chicago, ADA allegations were made against an African-American female PROBATE judge —- she recessed for lunch and disappeared — NEVER returned to her job. To
this day there is no public explanation of why her sudden departure. A few years
ago in Ohio a county probate judge went public in a news article, vowed he “would never recuse himself from this case”, within days he recuses himself after being
served summons in an ADA lawsuit. In Indiana, my count is, 11 different Indiana
state court judges are facing ADA lawsuits. Leading the charge and pending for a
jury trial is Prakel et al. v. Indiana(**), a Title II ADA case concerning associational discrimination by a state court. Most recently the 7th Circuit Court of Appeals,
Posner, J., in an unpublished opinion [conveniently] chastised a Federal Court judge
for how a litigant’s disabled status was considered and treated in a federal ADA
lawsuit against the Circuit Court of Cook County Illinois and the state of Illinois. See Linda Reed v. State of Illinois found online at:
http://scholar.google.com/scholar_case?case=6167012958917652309&q=Linda+Reed+v.+State+&hl=en&as_sdt=4,11 2,127,268,269,270,271,272,314,315,331,332,333,334,335,377,378
(**) To read the US DOJ “Statement of Interest” in the Prakel case visit online at:
https://www.ada.gov/briefs/prakel_soi.pdf This is a MUST read because it addresses associational discrimination and the right of family members to provided one and other “emotional support and informed perspective” concerning legal matters involving them. It likewise chastises the courts by reminding them of “their unique qualifications” and the long-standing principle that ignorance of the law is never an excuse.
18. In Tennessee v. Lane – found online at: http://scholar.google.com/scholar_case?case=6561706852611120473&q=%22Tennessee+v.+Lane%22&hl=en&as_sdt =4,60
the US Supreme affirmed Congress’ authority to abrogate the states 11th Amendment sovereign immunity — in Title II ADA discrimination cases.
19. “Discrimination” is a message the broader public rallies behind, just look at the LGBT movement and their successes.

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