Some Guardianships Last Longer Than Necessary But They Are Rarely Overturned
Volume: 38 Issue: 5
(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 38, Issue 5.)
An 86-year-old woman had a stroke and her niece was appointed conservator to manage her financial affairs. The aunt moved to assisted living, where her condition improved significantly. She then wanted to go home and to manage her own affairs. She petitioned for termination of the conservatorship. Her petition was opposed by the niece but was granted based on clinical records showing improvement, as well as her own in-court testimony. The niece appealed, and the trial court decision was affirmed.1
The court appointed a mother as guardian of her 29-year-old daughter with intellectual disabilities. Three years later, the individual had developed a network of assistance including a supportive husband as well as help from her mother, close neighbors, a cousin’s wife, and a social worker who secured necessary supportive services. The court found that guardianship was no longer needed because “there is now a system of supported decision making in place.” 2
Adult guardianship removes rights in the name of protection. Regardless of the good intentions of—and essential care provided by—many guardians who often step in at crisis points, guardianship is a one of society’s most drastic interventions in which fundamental rights are transferred to a surrogate, leaving an individual without choice and self-determination—”unpersoned,” as noted by the Associated Press in its 1987 landmark press series.
I t is apparent from media stories and anecdotal evidence that an unknown number of adults remain under guardianship beyond the period of need—and that others may never have needed the guardianship in the first plac e, as a less restrictive option could have sufficed. While, on paper, each state provides for “termination of the order and restoration of rights” as in the two cases profiled above, there are no data on the frequency with which restoration occurs, for whom, and under what circumstances. comment: This ugly statement is not entirely true. The 18th Floor of the Daley Center (Cook County, Illinois) is a guardianship mill. The ABA and Law enforcement have known about the criminal enterprise and have attorned to the cover-up that is still going on.
Thus, the American Bar Association Commission on Law and Aging (ABA Commission) sought to shine a light on the backwater and little-known process of restoration. With funding from the Greenwall Foundation, the ABA Commission, in collaboration with Dr. Pamela Teaster, Director of the Virginia Tech Center for Gerontology, and Jenica Cassidy, a Maryland elder law attorney,3 conducted research on the frequency, circumstances and results of guardianship restoration proceedings. Using legal research by Cassidy in 2013-2014 as a basis, we undertook the first multi-state collection of data on restoration.
Comment: The GAO has written four reports to Congress detailing the elder abuse, and it has been almost a decade that Probate Sharks, NASGA, MaryGSykes et al have exposed the overt judicial corruption that is a condition precedent to the criminal enterprise of ELDER CLEANSINGS .
While data on guardianship is scant to nonexistent in most states, we identified two state courts (Minnesota and Washington) and two statewide public guardianship programs (Kentucky and Illinois) with databases in which restoration of rights was a searchable element. Each of the four states identified cases over a three year period that resulted in termination of the order and restoration of rights. Key findings help to illuminate the restoration scenario:
The total number of restoration cases over three years in four states was 275.
- Four-fifths of the cases involved younger individuals with disabilities, and one-fifth involved older individuals.
- A majority of the individuals restored lived at home and had estates under $50,000.
- The most prominent trigger for the guardianship was mental illness, followed by intellectual disability. Comment: The ABA researchers should read the statute and in particular 755 ILCS 5/11a -3b.
- Over half of the guardians were family members.
- Generally, the individual subject to guardianship or a family member petitioned for restoration of rights, after an average of almost five years.
- In close to half the cases, the individual had no legal representation, but in the vast majority of cases, the restoration was not contested.
- While our study did not include cases in which a restoration was not granted, data from the North Carolina Administrative Office of the Courts found an average rate of close to 75% of petitions granted – that is, about three quarters of the restoration cases were successful.
The study results contrast with the legal research on reported case law, which shows a more complex picture, as these cases (57 cases from 1984 to 2015) were all contested —frequently opposed by the guardian, and frequently appealed.
It is apparent from media stories and anecdotal evidence that an unknown number of adults remain under guardianship beyond the period of need —and that others may never have needed the guardianship in the first place, as a less restrictive option could have sufficed.
The study’s empirical findings show that the restoration process can work for the “typical” cases we studied. But what about cases in which no petition is filed because the person, family, and guardian are not aware of the restoration process? What about cases in which a petition is filed but the guardian, a family member, or service provider opposes the restoration and there is no attorney to represent the individual? What about cases in which restoration was not granted by the court?
Comment: When an individual such as Mary Sykes or Alice Gore have a sizable estate (over a million dollars) the victim is isolated, the estate is pillaged, and all humanity of the victim is purged. The victim because a human zombie. As long as it takes for HEALTH CARE payments to run out and the Estate to be reduced to zero the victim is allowed to live – however, once the elderly victim has no more pecuniary value – DEATH FOLLOWS IMMEDIATELY.
Building on the empirical and legal research, we conducted a Roundtable on Restoration of Rights in 2016, with additional support from the Borchard Foundation Center on Law and Aging. We convened 20 diverse, interdisciplinary participants, and heard by video and in person the voices of two individuals seeking or granted restoration. The study Report details the Roundtable discussion, which for some issues resulted in policy and practice recommendations.
For example, how can individuals and families become more aware of restoration as an option? Discussion centered around allowing informal requests to court, providing notices about restoration, strengthening court complaint procedures, connecting individuals with agencies that can help, and training guardians ad litem and court visitors in restoration of rights.
Comment: There is no restoration option in corrupt courts. In Cook County it appears that some of the judges have abdicated their office to the guardians ad litem. These individuals by default have great power and set into motion the ELDER CLEANSING felonies. In the Sykes case 09 P 4585, GAL Cynthia Farenga was actually able to orchestrate the situation so that not only was Mary Sykes totally deprived of any semblance of Due Process, but so was her younger daughter Gloria Sykes. 755 ILCS 5/11a – 10 was virtually ignored. Mary was never provided a competency hearing prior to GAL Adam Stern handing “wired” judge Maureen Connors an order appointing for Mary a plenary guardian. Every protection of law was denied the victim. To protect the criminal enterprise the lawyer disciplinary commission acted to attempt to prevent disclosure of the criminal enterprise and still after the death of Sykes continues in its 18 USCA 371 conspiracy.
What about the right to, and role of, counsel in restoration cases? In some cases, lawyers may assume they cannot represent a person subject to guardianship because the person has been determined by court to be unable to make some or all decisions, and may therefore may not be able to instruct the lawyer. Roundtable discussion supported the position, as outlined by Kohn & Koss,4 that there are no legal or ethical bars to such representation, and that ethical rules should clarify the role of lawyers in representing individuals subject to guardianship as an advocate for the person’s expressed wishes. Roundtable participants urged that state legislation provide an explicit right to counsel of the person’s choosing in restoration proceedings. They also urged legal services and protection and advocacy agencies to take a strong role in such representation.
Comment: In Illinois no competent lawyer would think that any individual was not entitled to counsel and the right to object to a guardianship. The right to counsel and even a jury trial is referred to in 755 ILCS 5/11a – 10. It is even supposed to be written on the summons. HOWEVER, because the guardianship is a recognized criminal enterprise in the Cook County courts jurisdiction and civil rights protections are considered “technicalities’ and the guardian ad litem in an estate that has a substantial value will just ignored the technicalities. If a lawyer complaints, the attorney disciplinary commission under the administration of Jerome Larkin will act to discipline the lawyer. The Supreme Court of Illinois will rubber stamp the discipline. Larkin in a document filed with SCOI that exposing corruption was akin to “yelling fire in a crowded theater.”
How can the existence of family and community supports be recognized as an important element in restoration cases? For instance, a 2013 case,Ross v. Hatch,5 ordered that a guardianship for a young woman with an intellectual disability who had strong support from her guardian, friends, and service providers would terminate in one year, during which time supported decision-making practices would be developed and reinforced. The Roundtable recommended state statutory requirements that a judge would take into account and make a finding on the availability and use of supports when assessing “capacity.”
Ross v. Hatch,5 ordered that a guardianship for a young woman with an intellectual disability who had strong support from her guardian, friends, and service providers would terminate in one year, during which time supported decision-making practices would be developed and reinforced. The Roundtable recommended state statutory requirements that a judge would take into account and make a finding on the availability and use of supports when assessing “capacity.”
Other Roundtable topics included regular court review of cases for continuing need for the guardianship, the role of the guardian when there is a restoration petition, evidentiary standards for restoration, and the need for the court to collect restoration data.
The project Report by the ABA Commission, with the Virginia Tech Center for Gerontology and Jenica Cassidy.
Research and Recommendations on Restoration of Rights in Adult Guardianship, will be posted on the Commission’s website in Summer 2017. Find it at https://www.americanbar.org/content/dam/aba/administrative/law_aging/restoration%20report.authcheckdam.pdf
Erica Wood is Assistant Director of the ABA Commission on Law and Aging. She can be reached at Erica.wood@ americanbar.org
1. In re Maxwell, WL 22209387 (Tenn. Ct. App. 2003).
2. In the Matter of the Guardianship of Dameris L., 956 N.Y.S. 2d 848 (N.Y. Sur. Ct. 2012).
3. Jenica Cassidy practices with Alisa Kobrinetz Chernack, LLC, Howard County Maryland.
4. Kohn, N. & Koss, C., “Lawyers for Legal Ghosts: The Legality and Ethics of Representing Persons Subject to Guardianship.” Washington Law Review, Vol. 91, No. 2, pp 581-636 (2016).