CONSERVATORSHIP REFORM
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:
- 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).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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?
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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