Memorandum.
Pursuant to the 14th Amendment every person is guaranteed certain rights of civilization and in particular to be treated equally under the law. This right is not limited to a vague statement mumbled and forgotten but an honest recognition of each individual’s worth. The elderly and the disabled are included in this understanding and recognition.
Thus, when it became apparent that an individual might be suffering from a disability, or a mental deficiency society is faced with the prospect of assisting that individual with only such assistance as might be need for the individual to reasonably survive in a competitive environment/society. Illinois Law described this situation in 755 ILCS 5/11a – 3b. (It should be noted that each state has an amazing similar statute/statement, to wit:
(755 ILCS 5/11a-3) (from Ch. 110 1/2, par. 11a-3)
(b) Guardianship shall be utilized only as is necessary to promote the well-being of the person with a disability, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual’s actual mental, physical and adaptive limitations. The order shall conform with Sections 11a-12 and 11a-14.
(Source: P.A. 102-72, eff. 1-1-22.)
It should be noted that the 14th Amendment provision is mentioned, i.e. “ only as is necessary to promote the well being of the person with disability” To protect the citizen’s rights from over-reaching the statute provides another limitation, to wit: “GUARDIAN SHALL BE ORDERED ONLY TO THE EXTENT NECESSITATED BY THE INDIVIDUALS ACTUAL MENTAL, PHYICAL & ADAPTIVE LIMITATIONS.
In the Sallas, Compasano, West, and just about every other guardianship case that has been discussed these limitations have been grossly ignored. In the West case, as an example, why should a guardianship place Mr. West more than 100 miles from his home when it bars him from having the companionship of his wife and family. In the Sallas Mrs. Sallas was placed for a decade right in her home with her husband. To facilitate the “Tyler” style theft of the equity of her home, she was removed into a nursing home mile from Skokie in Buffalo Grove. In the Campasano case not only was the marriage arbitrarily not recognized by the guardian, but to prevent Mr. Campasano from enjoying the rights of his marriage an order of protection was granted by Judge Boliker without notice to Mrs. Campasano. (We also believe that Mr. Campasano was not given the right to protest). ALL OF THE FOREGOING ARE DIRECT VIOLATIONS OF THE 14TH AMENDMENT to the United States Constitution.
American Law, prior to present assault on the rights of the elderly, honored the Bill of Rights and the Constitutional protections of the 1st Paragraph of the 14th Amendment. Indeed, protection was even provided for prior to the appointment of a Guardian. Unfortunately, it appears that this protection was granted in form and not in substance. Such is manifest by the number of professional guardians rummaging through the estates and the absence of express findings of law and fact by judges. In Illinois the applicable statute is 755 ILCS 5/11a – 3a, which states:
(755 ILCS 5/11a-3) (from Ch. 110 1/2, par. 11a-3)
Sec. 11a-3. Adjudication of disability; Power to appoint guardian.
(a) Upon the filing of a petition by a reputable person or by the alleged person with a disability himself or on its own motion, the court may adjudge a person to be a person with a disability, but only if it has been demonstrated by clear and convincing evidence that the person is a person with a disability as defined in Section 11a-2. If the court adjudges a person to be a person with a disability, the court may appoint (1) a guardian of his person, if it has been demonstrated by clear and convincing evidence that because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if it has been demonstrated by clear and convincing evidence that because of his disability he is unable to manage his estate or financial affairs, or (3) a guardian of his person and of his estate. The court may appoint co-guardians in accordance with Section 11a-15.
If one reads section 3a and 3b together, we note the following requirements, to wit:
1) Due process averments must be made, served on all interested parties and proven by clear and convincing evidence. This is most procrustean of the burdens of proof.
2) The burden of proof is upon the person asserting that another person is disabled and in need of a guardian. This burden of proof has to be specific to meet the criteria of section 3b.
3) The person appointed to be guardian is A FIDUCIARY and as such is held to the highest standard of conduct.
4) The guardianship appointment is not a rote matter. A person being deprived of his/her rights is entitled to counsel, a written document detailing the basis upon which guardianship is sought, and the finder of fact a jury rather than the judge. (In fact the usual proceeding is a “joke!” if all the required people are indeed notified, they are silenced by a judge who 99 out of 100 times will appoint predatory Guardian’s ad litem, and listen to a physician who would if every person in the Courtroom was wearing a mask and dressed in the same attire as the elderly person would find them all in need of guardian including the esteemed judge. In too many cases this physician is not paid to give evidence, he/she is paid to provide a testimony that he has examined the elderly person, and he finds from his examination that the elderly person has no ability to do anything of substance.
(In the case of Amy Sallas, she was actually doing the shopping, engaging trades people to do work around the home, making meals, etc. She was so disabled that her guardian placed her back in her home where she and Dean lives for ten years with virtually no supervision. The guardian’s primary duty was to harass the couple and make demands of the court for compensation).
The statute is consistent [1] with the proposition that as a fiduciary the Guardian is held to highest standard of care and compliance with the RULE OF LAW. What this means in simple terms is that the guardian’s actions must be a) reasonable, b) necessary, and c) must provide a benefit to his ward.
If any of these 3 elements are not present not only is the guardian not entitled to compensation, but the guardian is subject to sanction and reimbursement of the guardian’s estate. In today’s guardianship lawfare, it is noted that.
a) In most of these guardianship cases the presiding judge does not make findings of fact and conclusions of law. Ergo, the Court cannot enter and order that comports with the requirements of 755 ILCS 5/11a – 3b.
b) The order entered by the Court makes no attempt to spell out the authority of the guardian and specifically limits the same to the criteria of 755 ILCS 5/11a – 3b.
c) That the Judge presiding in the Guardianship Court is essentially a rubber stamp and no matter what, if anything the Guardian requests he gets. In the Sallas case the guardian desired to ravage Mr. Sallas credit. It appears that a Judgement was entered against Mr. Sallas for support of his wife – no petition, no service of process, no domestic relations proceeding, no basis, no averment – the real purpose was to prevent Sallas from refinancing certain loans that were coming due. Such was successful. In the Campasano case the Order of Protection appears to have been entered – the real purpose is to prevent Ms. Campasano from preventing the neglect of her husband.
d) If a person KNOWS the object of his bounty, KNOWS the extent and nature of his property, and CAN PERFORM a simple business-like transaction such as purchasing something from the local store – -the need for a guardian is very questionable.
Every State in the Union has a Statute similar to the Illinois statute addressing the 14th Amendment’s prohibition on indenturing citizens for the benefit of public officials such as guardians and protection all citizens so that they enjoy the RULE OF LAW. In the Britney Spears case, the California Courts made a mockery out of the Guardianship law. Ms. Spears negotiated and performed multi=million-dollar contracts – the fact that she liked to wander around inappropriately dressed and say wild things did not warrant her rights being violated. But they were!
Across America, the elderly are being preyed upon but individuals who owe them fiduciary responsibility and corrupt judges. This aspect of Lawfare is being ignored by Law enforcement and government in general. It is corruption personified and cannot be further tolerated.
Ken Ditkowsky
[1] Read together 755 ILCS 5/11a – 3 states, to wit:
‘
(755 ILCS 5/11a-3) (from Ch. 110 1/2, par. 11a-3)
Sec. 11a-3. Adjudication of disability; Power to appoint guardian.
(a) Upon the filing of a petition by a reputable person or by the alleged person with a disability himself or on its own motion, the court may adjudge a person to be a person with a disability, but only if it has been demonstrated by clear and convincing evidence that the person is a person with a disability as defined in Section 11a-2. If the court adjudges a person to be a person with a disability, the court may appoint (1) a guardian of his person, if it has been demonstrated by clear and convincing evidence that because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if it has been demonstrated by clear and convincing evidence that because of his disability he is unable to manage his estate or financial affairs, or (3) a guardian of his person and of his estate. The court may appoint co-guardians in accordance with Section 11a-15.
(b) Guardianship shall be utilized only as is necessary to promote the well-being of the person with a disability, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual’s actual mental, physical and adaptive limitations. The order shall conform with Sections 11a-12 and 11a-14.
(Source: P.A. 102-72, eff. 1-1-22.)
Ken Ditkowsky
MaryGSykes.com 