Text Box: Platform Proposal
To The 2008 DNC Platform Committee
From The National Elder Abuse and
Guardianship Victims Taskforce for Change
What’s Wrong With Conservatorship?
Interview with Dohn Hoyle, Michigan ARC

Summarizing the Guardianship Racket
from http://maxpages.com/savinggrace/Guardianship 
”Over and over, we are hearing tales of horror
and woe associated with involvement with and within these guardianships.
 “Family members are being removed under the doctrine of ‘best interests’ from family on exaggerated and false charges. Family can do no right. These guardianships can do no wrong, and are not held accountable for abuses or funds.  
“The elderly person's situation does not get better, in fact, notably, conditions worsen to a marked degree  in a short period. Loved ones can do nothing.
“The elderly person's money disappears at an alarming rate. There is no accounting of the funds to family members. Protective laws are ignored. No attorney can or will help. Family members seek help but issues sit in attorneys office and nothing is ever done. Meanwhile the elder person suffers, family members are treated as criminals when they try to help. 
“The abuses of the guardianship are overlooked by the 
judicial system, whereas family must tow the line to a
completely different standard of behavior.

”People are robbed of their life savings and die in poverty and in abusive conditions. No one can or will help. Meanwhile, as the elderly persons suffers, family members suffer, third parties are gaining financially from this horrible mess and great abuse.


”Oftentimes, it is a matter of merely educating family on
guardianship or care but this is usually not the option.
Once in these guardianships, family members and loved ones are not allowed to see the records. Thus, these guardianships are protected from any checks and balances on their actions.
”The legal system seems to be ignoring this very serious situation and those attempting to bring awareness are attacked and vilified. 

”Please tell your story.”


Conservators and guardians are granted far too much power by probate courts under our current laws, and the legal checks and balances in the present law are far too easy for unscrupulous, unethical or abusive conservators to circumvent by manipulation, making wards prisoners and chattel of their conservators.


This must be stopped.  We have seen wholesale abuses of conservatorships shockingly exposed in the year 2000 scandals in Riverside County.  We must reform these laws from the bitter experiences and injustices we have seen in Nancy’s case, and learn from the horrendous lessons of the Schiavo tragedy in Florida and avoid making these same mistakes here in California ever again.

Conservatorship Abuse

Present interpretations of State law now result in the wholesale denial of the most basic constitutional freedoms to an entire class of people, wards abused by their conservators, inflicting injuries and deprivations upon elders and allegedly incompetent adults.  The habeas remedy has been effectively suspended for that group by gravely erroneous precedential holdings, the constitutionality of which we urge be now held in dubious regard.  The remedies available to such wards in ongoing jurisdictional proceedings in state probate courts have in many situations proven entirely inadequate. 

Since the abolition of slavery and the Thirteenth Amendment, in no other area of the law is so much power over one citizen routinely and casually granted to another, approaching a state of disenfranchisement akin to involuntary servitude, than in state appointed conservatorships and guardianships.  While the aims of these laws are purportedly beneficent, the ward may all too easily become the prisoner or chattel of the conservator.  All it takes in most instances is a doctor, a judge, a public defender and an unscrupulous conservator to potentially deprive an allegedly incompetent person of all their property, liberty and safety for the remainder of their lifetime yet it happens every day in probate courts across the country

Confidence in the availability of relief rests entirely on the unreliable good will and ethical responsibility of the court which ordered the conservatorship in the first place, often a single judge acting without jury whose decisions may forever evade effective appellate review.

That these precedential holdings are of long standing is not denied. That a machinery for state remedies exists is not denied.  The question here is whether or not they are or ever have been adequate to protect the safety, property, life and liberty of the ward.  It is because these denials of constitutional liberties are so absolute that a ward may so easily fall prey to becoming the prisoner and chattel of the conservator. A conservator may maintain a virtual stranglehold on all the necessary independent resources needed for the ward to regain freedom: friends, family, doctors, psychiatrists, lawyers, personal liberty, safety, money, health, comfort, information, communication, life supports, competent medical care, access to records, freedom from retaliation or even the ability to maintain his or her own thoughts, as we have here in this case.

This is simply too much unchecked power to be given to any one individual or state official, whether it be private or public, and experience teaches us that probate courts are often not able to monitor what happens for the same reasons that others may not, because information is controlled by the conservators and lack of accountability makes it easy to look the other way.  Here in Schiavo, the voices of dissenters even in Schiavo’s own family were for all practical purposes muzzled in the courts and no one was empowered to challenge her guardian’s authority. For the same fundamental reasons that we no longer sanction slavery we must bolster checks on the powers of conservators. Otherwise we facilitate a system of state sponsored elder abuse, where each of us may someday be deprived and exploited against our will. This is what the public, Congress and the President saw that led to public unease and calls for urgent action.

The only effective means to ensure public confidence that these abuses will be rare must be to grant habeas jurisdiction for review for error by venues other than the local probate court that granted the conservatorship including other state or federal venues, which experience has taught us may be tainted by local influence and the cliquishness of the local probate bar. Unquestioning traditional deference by all the courts above to those probate courts and conservators is why we presently have this problem of national significance.  That is exactly the purpose that the of remedy of the Writ of Habeas Corpus has historically served, and it must be restored to its rightful place. No other solution comes close to filling the job.

It is a grave error to eject the Habeas suitor from relief in a neutral reviewing court sending him back to the same court that granted the conservatorship with all the original handicaps that resulted in the unjust disposition in the first place.  In no other area of the law do we more routinely deprive the habeas suitor of his right to review for error.  A federal forum may be the only recourse from a state imposed conservatorship, because corrupt or venal conservators resisting the termination of their illicit powers and resulting exposure may easily defeat a challenge by exercising a denial of discovery acting in concert with the public defender’s office as here in this case denying evidence necessary to defeat her guardian.  Effective discovery is only available in either the superior court that appointed the conservator, which may be infected with local bias or a refusal to admit an original error, or a district court, and not on appellate review.

This was true in Schiavo, as well. Congress and the President clearly recognized from widespread public shock at the apparent impotence of the higher courts and legislature to overturn what appeared to be an unjust disposition in this case that federal habeas review may have been the only last ditch remedy available.  Here a sole private conservator, Michael Schiavo, rightly or wrongly, had been granted total and unlimited powers over his incompetent wife’s very life in conflict with the will of her own family which no state court felt empowered by tradition to question by virtue of the absolute nature of the powers granted to him under our current regime of state laws. 

Twenty-One Things We Must Do to Fix the Problem

To bring sanity back to these laws, here is what we believe is the only way to securely fix this problem:

  1. Criminal due process safeguards for all persons opposing involuntary civil commitment.  Codify Roulet! California’s Landmark Supreme Court ruling, Conservatorship of Roulet, 23 Cal.3d 219 (1979), as the rule of law in California guaranteeing all the same due process rights of a criminal defendant for all persons facing a loss of liberty by conservatorship or commitment proceedings! (Read: 33 USFLR 59, Eroding Roulet: How the Courts Ignore a Landmark In California, by Paul Bernstein, University of San Francisco Law Review, Fall 1998)  This landmark ruling which proclaimed that deprivation of liberty is the same whether it be labeled “civil” or “criminal” and requires the same judicial standards was a watershed ruling that lower courts have gradually chipped away at ever since and ignored.  In civil commitment proceedings such as conservatorships or guardianships, courts may apply a much lower standard and may deny your right to a jury, for example, just because its labeled “civil”.  This is wrong. Indigent criminals have a right to free transcripts, rights to a unanimous jury verdict, rights to protection against self-incrimination by psychiatric examination, why not innocent allegedly incompetent persons facing a lifelong loss of freedom, dignity and property in nominally civil commitment proceedings, on demand by their family members, friends or advocates if they are incapacitated?  All the same rights of protection against unjust denial of liberty must be applied to innocent people trying to defend their liberty against conservatorship and guardianship proceedings that are accorded criminal defendants under the Sixth Amendment, including revitalized confrontation rights under the Supreme Court’s new Crawford v. Washington, 124 S.Ct. 1354 (2004).
  2. Permit families to replace the court appointed public defender as their relative’s advocate with their own private attorney or one chosen by the proposed conservatee if they are able to afford one.  Right now the court may manipulate the process by hiring a stooge to “represent” the proposed conservatee who does not speak for him or her but represents the county or the public guardian, and will not let family members, friends or advocates replace them even if they can afford to do so.  Right now no one speaks for the person whose life and property are being taken away.  Public defenders must defend their clients, not prosecute them.
  3. Eliminate the lame excuse of “privacy” to defeat discovery of abuse.  People who are being abused in state care want and need their medical and other records disclosed so any abuse can be exposed rather than being blocked with phony concerns about their privacy.  People do not want to be abused and tortured in private, they want the world to know about it.  HIPAA federal privacy laws do not abolish the right of courts to look at abuse or defy subpoenas and court orders. 
  4. Open up discovery without limitation for defending against conservatorship.  Discovery must be opened up and access to allegedly incapacitated persons permitted so that others can see what is happening, they can consult with an attorney, have visits from friends, or have access to the conservatee for an independent medical or psychiatric evaluation to take place in their defense hired by the family, not be railroaded by a state hired “expert” with no opposition expert available.
  5. Eliminate rights of conservators to restrict social contacts by family, independent doctor, psychiatrists or friends.  We must stop conservators from having the right to make prisoners or chattel out of their wards.  A conservator must be the servant of the ward, not his master.  Others must be allowed to look in on them to prevent state sponsored abuse and neglect. Involuntarily imposition of supervised visits or restrictions are not statutorily authorized by the probate code or the Constitution.  The First Amendment protects the rights of familial association of all adults.  Adult wards are not subject to the family or juvenile codes.  This right may not be suspended by state statute.  Consenting adults must be allowed to associate with whomever they choose -- that is the essence of freedom.
  6. Eliminate exclusivity of conservatorship powers!  Where more than one family member has an interest in the conservatee’s rights, do not permit conservatorships that exclude them from exercising their interests!  Do not allow only one family member the right to make all the decisions to the exclusion of everyone else.  This is exactly what went wrong in Schiavo, and in every other case where conservatees are abused by a single self-interested conservator to the exclusion of other family members.  If there is anyone that wanted Terri Schiavo to live they should have had the right to exercise that interest, rather than leaving everything up to one questionable conservatee to dominate over all the other family members.
  7. Constitutional rights must be defended for all conservatees!  Conservatees are citizens with the same rights and privileges of all other citizens under the present probate code. A conservator’s rights are not without limitation and he may not deprive his ward of all of his or her constitutional rights merely because they are under his care.  This includes the right to safety, the right to independent appointed counsel, the right to have his assets protected by independent auditors representing families, friends or advocates, the right to refuse involuntary psychotropic medication.  These constitutional rights presently considered merely prefatory in the Lanterman Act must be given statutory authority as civil rights entitlements authorizing private rights of action by interested parties.
  8. Restore the review by writ of habeas corpus to those that are conserved.  Congress forgot about involuntarily committed persons when it strove to restrict access to the state and federal courts under the AEDPA for allegedly frivolous appeals by death row inmates, the original and time honored remedy for those that are unfairly deprived of their liberty by state officials. A new federal jurisdictional code must be added to the federal habeas statute (28 U.S.C. §2254) granting Congressionally mandated jurisdiction to federal courts to speedily review cases for error where a person is incarcerated against their will in a nominally civil proceeding. This will make it easier to have their cases reviewed by an independent neutral court independent from the state court that granted the conservatorship which may be profiting from it.
  9. Grant families or significant friends legal standing to represent their incarcerated relatives as Whitmore [1] next friends without limitation, notwithstanding that they may have temporarily lost custody or standing in a prior proceeding.  If the state seizes custody of your relative or friend and abuses them in state care, supposedly to protect them, who can then protect them from the state?  Does it make sense to leave sole legal representation in the hands of the very people who need to be sued for custody?  Otherwise the perfect defense against any liability lawsuit is to merely conserve the injured party and monopolize their legal representation.
  10. Improve Independence of Protection and Advocacy Services by building a financial firewall between them and the Regional Centers and Public Guardians.  No more shirking advocacy for those that are incapable of requesting help, if others are able to request it on their behalf.  No more sharing of office space or personnel with Regional Centers. Keep funding authorization for P&A from federal government independent by direct federal funding, not administered through state agencies.
  11. Religious rights for conservatees must not be denied.  Again, a ward is not the property or prisoner of the conservator, and their constitutional rights to religious freedom may not be arbitrarily denied.
  12. Accountability for conservators.  Family members, relatives and friends must be able to see medical and financial records of those that they suspect may be being abused by their conservators.  Control of medical records and consent to medical treatment is misused to prevent disclosure of abuse.  These must be open to being inspected by other interested parties in order to assure the safety of those whose rights are being taken away from them in state care.  Why allow all the other rights of a conservatee to be removed except privacy, as if that is the only right important enough to be protected?  Whose rights are really being protected here? Aren’t we really using this as an excuse to protect the privacy of an abusive conservator?
  13. Force state audits of conservatee property seizures, and state must pay for care.  State public guardians are operating a widespread sophisticated racket on behalf of counties and state officials by perpetrating what amounts to state sponsored financial elder and dependent adult abuse under the guise of “protection”, removing elders from their homes claiming them to be incapacitated or endangered and creating a debt for their care, placing them in penury and then seizing their property on behalf of the counties in order to pay for their “care”.  Persons made wards of the state by the Public Guardians office must have their assets protected and must not be forced to pay for unwanted services.  The way to oppose this is by exposing the financial activities of such county officials by open audits.  If the state is forced to pay for their care, this removes the perverse incentive to seize them and their assets to pay for it.
  14. Accountability for probate judges.  Unfortunately all too often a few probate judges whom we entrust to protect the elderly and disabled are unable to resist the financial temptation which presents itself to reap huge profits from those that they commit to state care, given the easy opportunity to cover up what they have done, because those that they prey upon cannot fight back. This is what happened in Riverside County in 2000.  Probate judges must be required to make regular public financial disclosures of all their assets and financial holdings subject to periodic audit.  While we do not want to impugn their integrity, we have a right to ensure public confidence just as we require in pre-election financial disclosures.
  15. Empower the FBI to investigate conspiracies against the handicapped and elders as federal civil rights cases.  The FBI is empowered to investigate public corruption, discrimination and other civil rights conspiracies? Why not civil rights conspiracies against the elderly or disabled?  Right now they do not recognize these as federal crimes and will not touch them or refer them to the US Attorney.  This must be changed.
  16. Pay attorneys fees to families prevailing in a frivolous contested conservatorship.  If the state is forced to pay for frivolous conservatorship contests, they might think twice about prosecuting them.  Right now the state has an unlimited budget to pursue such cases paid for by your tax dollars. It is unfair to require a family to pay what sometimes may amount to millions of dollars in unnecessary legal fees out of their own pockets to fight the state merely to keep their relatives safe at home and families from being destroyed.  Are we unwittingly paying the state out of our tax dollars to destroy our caring families?  This is not how we want our laws to be enforced.
  17. Put an end to abrogating family preferences under special state conservatorship laws.  Right now, a developmentally disabled person can be conserved by the state without the regular probate family preference rules under a certain special health and safety statute authorizing conservatorships by the state intended by the legislature only for those that are abandoned.  Even though another section of this same code guarantees that they cannot be conserved against the wishes of their family by the state, the laws are an ambiguous patchwork of seemingly conflicting statutes and case laws that require clarification in order to avoid denials of due process by state officials, cutting knowledgeable caring parents out of the picture, for state profits.
  18. Require public audits of Regional Centers to disclose private foundation grants and charitable donations. Even if we drained the public financing swamp completely, there would still be a limitless private funding swamp to fund Regional Centers that is completely unaccountable.  This lack of accountability must be controlled because we grant these regional centers a public monopoly to benefit from their catchment areas and we need to be able to see what they are doing under our charter.  They also must be required to disclose how much money they make under the table on each conservatee.
  19. Accountability for state licensing.  Right now state care facility licensing operates a scam where they simply deny reported abuse and close their books claming that this is not part of the public record because they reached the finding that the report was “unfounded” or “unsubstantiated” so that no one can see the original report, as long as they look the other way, and this is what they always do.  State licensing officials are not doing their jobs.  This must be stopped.  State licensing must be required to disclose all reports of abuse and neglect and be held accountable for any violations that go unsanctioned.  This is how nursing home abuse gets covered up and people die in state care.
  20. Require CPS/APS to shred reports of “unsubstantiated” or “unfounded” on their books after investigations disclose them to be malicious or frivolous.  When your neighbor tries to get even with you for always parking in front of their house or running over their cat, by fraudulently reporting you for abuse of your children to CPS or APS, and they investigate it and find that they are merely trying to make trouble, do you think that these agencies record their findings of innocence on their books? Wrong!  They build up a false record on you based on the original malicious reports and never record that you were wrongly accused.  Years go by and you find out that you have accumulated a record of garbage complaints and suddenly your kids are taken away from you for no reason at all.  This must be stopped.  We have unwittingly created an informer society worthy of Nazi Germany complete with its own Gestapo, and the state profits handsomely by it  Records of false or malicious accusations to CPS and APS must be shredded when found to be unsubstantiated or unfounded, just like the Social Security Administration does any time they talk to you, to protect your privacy.
  21. Make Regional Centers compete for your business!  Right now if you determine that the programs offered by the regional centers are not benefiting your child or may actually injuring them or cultivating strange or violent behaviors in them, do you have the right to take them out of those programs?  Not really, because the regional center officials “feel a concern” and routinely report parents to CPS or APS merely because they responsibly remove their children from boondoggle programs designed only to make money from the federal government.  There is no quality control. That is not fair and doesn’t allow parents their constitutional right and duty to the direction and upbringing of their children. If the regional center does not offer your child a program they can benefit from, you have the duty to find a better one for them somewhere else.  Giving these regional centers a monopoly means they don’t have to compete for your business and your child is a captive customer shoving their half-rate services down your family’s throat, so they can put parents in a stranglehold forcing services on them that may actually cause harm rather than benefit.  They don’t have to spend the money on your child either – they can just pay themselves bigger salaries instead.  Competition is the American way.  Monopolies don’t  work.  Make them compete and the programs offered will improve!

Page last updated June 4, 2009

[1] For an appalling example, see “Guardian Angels”, by Christopher Manes, in California Lawyer, January 1, 2000, re 1999 Riverside County, a huge California conservatorship scandal allegedly involving a judge, the public guardian and the office of the public defender.

[1] AEDPA = Anti-Terrorism and Effective Death Penalty Act

[1] Whitmore v. Arkansas, 495 U.S. 149 (1990), has never been codified and should be, in order to assure uniformity of laws and interpretations.