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The Anatomy of an Involuntary Guardianship
By Teresa Kay-Aba Kennedy
Guardianship laws intended to protect the vulnerable are being used to entrap unsuspecting people to control their property. For court insiders who know how to manipulate the system, it is an easy and lucrative crime. A rogue guardian, who has the ability to make decisions for you, can wipe out all of your assets and destroy your life with no recourse. So, how does an involuntary guardianship come about?
The Process involves three phases:
1) INSTIGATE – A Petitioner files to declare you incapacitated. In most states, anyone can petition. There is no due diligence on the motive or allegations. Fraudulent statements are routinely put forth. There is also no attempt to find interested parties like family. Suddenly you have a court-appointed attorney and you are an Alleged Incapacitated Person (AIP).
2) EVALUATE - An examining committee, of usually three people, is appointed from a court-approved list. They are commonly not experts in neuroscience or aging. The MD could be a gynecologist determining that you have dementia because you did not know the exact amount of your mortgage. The evaluation criteria is subjective and it’s easier to take away ALL rights than to have to defend the removal of one or two.
3) ADJUDICATE – The Judge makes the capacity determination sometimes without meeting you. In a court of equity, there is usually no jury, due process or rules of evidence, and everything is kept quiet with closed hearings and sealed records. Based on the evaluators report, a Judge appoints a limited or plenary guardian. You are now a WARD. Everyone’s fees are paid from your assets.
The Judge can take away rights such as to marry, vote, drive, sue, contract, manage money, decide where to live and even to choose with whom to socialize. With a court order, the guardian can also commit you to an institution, file for divorce, and consent to experiments, sterilization, abortion, and termination of parental rights.
Just about anyone can become a guardian. There is no formal education or licensing. With 40 hours of training, a guardian can charge $85 or more an hour—upwards of $200 to $500 an hour if the guardian is an attorney. In some states, convicted felons have ended up as professional guardians.
There may be some professional guardians out there that legitimately help, but guardianship by design is oppressive. It removes self-determination and all fundamental rights rendering you a non-person. Former Congressman Claude Pepper famously said:
The typical ward has fewer rights than the typical convicted felon… It is… the most punitive civil penalty that can be levied against an American citizen, with the exception, of course, of the death penalty.