Op-Ed by Janet Phelan

Legal reform initiatives now litter the landscape. From new bills proposed in state and national legislatures, to the efforts of established groups like the ACLU and the CCR, to jury nullification efforts, to groups dedicated to propping up the co-opted grand jury system, the political landscape is now populated with people trying to reform what is an obviously ailing system. A number of efforts have also been launched to beseech international tribunals to weigh in on and correct the injustices in American courts.

This article will focus on some of these efforts as they impact adult guardianship proceedings. Nevertheless, the concerns stated herein, concerning the integrity of the judiciary, are equally applicable to family and criminal court and appellate proceedings. The “elephant in the room” would be visible in all these courts.

As the grave civil rights violations inherent in adult guardianships gain more public awareness and more media attention, various attempts have been launched by a number of states to amend their laws surrounding these guardianships.

Guardianships in essence constitute a legal loophole through which an individual can lose his rights and all access to his funds, upon allegations of incapacity. The potential for abuse through such a process is obvious. The fact that these abuses have become an epidemic is reflected not only in a number of GAO reports but also in recent articles in The Wall Street Journal, The New Yorker, The New York Times and numerous local publications, as well. Even the US Senate has weighed in — Courts Fail To Protect 1.3 Million Vulnerable Americans In Guardianship Charges Senate Report.

However, the media coverage and the subsequent proposed legal remedies have carefully avoided the obvious—the elephant in the room. For it is now a matter of mounting concern that the judges in these proceedings are receiving under the table monies in order to throw these cases.

The very concept of a bribed judiciary is anathema to the idea of impartial justice. Not one word concerning the possibility that the guardianship judges are bought and paid for has been uttered by any mainstream publication. And when guardianship abuses hit the local press, as they recently did in Nevada the subsequent legislative efforts to pass laws to “reform” adult guardianships make a studied detour around the problem of “Da Judge.”

The state of Oregon, a hotbed of continued focus on potential elder abuse issues, due to its long standing legislation permitting euthanasia, has recently passed a guardianship reform package. The new law was heralded by Representative Nancy Nathanson as adding “safeguards to protect vulnerable elders and people with disabilities in guardianship.” Representative Nathanson goes on to assure us that “…national standards of practice will be put in place to ensure that the ward’s wishes and choices are taken into consideration.”

In fact, the new Oregon law, HB 2601, does no so such thing. The law states the following:

(2) A guardian may not limit a protected person’s preferred associations, except: (a) As specifically allowed by the court; or (b) To the extent the guardian determines necessary to avoid unreasonable harm to the protected person’s health, safety or well-being.

In other words, the court has all the power to limit a ward’s associations, as stated in 2) a) and as codified in b), the guardian may make his or her own unilateral determination that an association may result in harm.

Missing is the voice of the protected person. In a scenario where a judge is known to be entirely honest and dedicated to impartiality, such an omission would still be of concern. In the current climate, such an omission could be seen as a guarantee that justice will stumble and fail.

In another attempt to reform guardianship legislation, this time in Washington state, we see again the removal of any locus of power from the protected person and lodged with the judge. Attorney Cheryl Mitchell has done an extensive analysis of the Washington bill, SB 5604.

Mitchell writes, “…it seems clear that the new law will no longer allow incapacitated persons to make their own health care choices and the guardian will apparently make those decisions based on the ‘best interests’ test.” Mitchell goes on to assert that “It appears that if this legislation goes into effect, an incapacitated person’s past preferences may be completely disregarded by guardians and the courts.”

The Washington bill, which was just signed into law by Governor Jay Inslee, does afford the protected person the right to counsel, due to some last minute changes. As it stands, a protected person may ask the judge to appoint him an attorney. However, Cheryl Mitchell has asserted that she is aware of cases wherein the judge refused to allow an attorney to be appointed. “There is a disconnect between the way the statute is written and actual practice,” she stated.

Concerning the importance of the right to representation, Mitchell writes that:

…. I find this alarming because in a guardianship case, every constitutional right a person has can be removed from a person who is found to be incapacitated, including the right to vote, the right to marry, and the right to decide where a person will live. And these are only a few of the rights that a person can lose when a guardian is appointed.

In fact, Mitchell has noted that an emergency petition for guardianship can be filed without notice given to the prospective ward. In other words, a Washingtonian could wake up one morning to discover that he no longer has any rights left and can not even access his bank accounts.

Through the adult guardianship process, the various states in the Union have created a new class of people, a non-person class. The individuals in this group have no legal rights, no voice and no access to their assets. Legislative “reform” has so far only guaranteed that a judge will weigh in on the fate of the non-person, ignoring the growing voices of concern that the judges in these cases are bought and paid for.