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In the U.S.A. there has been a growing problem
of abuse of the elderly and disabled due to a covert system of guardianship or
conservatorship. This covert system of power and control is enforced through
the judicial system. It is manipulated for use by fraudsters, abusers and
persons wielding undue influence for financial advantage. The wards have lost
the right to complain, because they have been stripped legally of all their
rights, left defenseless and subject to exploitation by the very people chosen
to protect them; they are now invisible and voiceless. There is a growing trend
for the courts to appoint total strangers who do guardianship duties as a
business for profit. The for-profit guardian is appointed to take over the
decision making process and often times given total and absolute control over
the life, liberty and property of their wards.
There are ethical standards for those who are
empowered by the courts to make decisions for incompetent patients. It is
extremely important in order to empower those who are disabled and vulnerable
to be able to advocate for their own human rights. Those in the court
guardianship system should be mindful that the patient's right to choose a
course of action remains, even after he or she is placed in a guardianship
situation. There still remains the doctrine of informed consent that
provides a right of self determination that underpins the protection of each
individual person's human rights and inherent dignity. This means providing
each and every human being respect and pro-active promotion of patient autonomy
in order to foster patient well-being.
The International Courts have emphasized the
fundamental human right to dignity deserves no exceptions or limitations, nor
any derogations. All human rights are based on the basic principle of dignity.
"All human beings are
born free and equal in dignity and rights." [Article
1 of the Universal Declaration of Human Rights (UDHR)]
International human rights standards are
delineated in the Principles for the Protection of Persons with Mental
Illness and the Improvement of Mental Health Care (MI Principles), which
were adopted by the UN General Assembly in 1991.
"All persons with a
mental illness, or who are being treated as such persons, shall be treated with
humanity and respect for the inherent dignity of the human person." [MI
Principle 1(2)]
In the U.S.A. the guardianship system offers few
procedural protections, and has spawned a profit-driven professional
guardianship industry that often enriches itself at the expense of society's
most vulnerable members--the mentally ill. Yet despite numerous calls for
reform, most states have done little to monitor professional guardians and
prevent abuse and neglect. The U.S.A. federal government should play an
increased role in the protection of incapacitated persons. Federal agencies
administer benefit programs such as Medicaid/Medicare which provide support to
wards through their payees. But there is little or no coordination between the
courts, the state agencies and the federal agencies and thus no notification if
they discover that the guardian or representative payee is abusing the person.
This lack of coordination may leave incapacitated people without the protection
of responsible guardians and representative payees or, worse, with an
identified abuser in charge of their benefit payments.
In theory, guardianship proceedings, when
conducted properly, offer much-needed protection for adults who can no longer
take care of themselves. This system assumes that the person (the ward) has
been found to be incompetent to manage their own affairs. In some states,
courts require petitioners to submit clear and convincing evidence of a ward's
incapacity, while other states only require a petitioner to show only that the
proposed ward is more than likely not competent to manage his own affairs. A
petition for guardianship is filed in which the person seeking to be appointed
guardian tells the court why the ward is incompetent and why it would be in
that person's best interests for his or her appointment to be the legal
guardian. But there are inadequate procedures and safeguards against mistaken
incompetency declarations.
Often the proposed ward and even their families
are not even notified about these proceedings until after guardianship has
already been established by the court. Under U.S. law it is presumed that
guardianship is a last resort, and that it should be used only when an impaired
person's needs cannot be met in some less intrusive manner. The principle of
limited guardianship requires that a guardian only be granted the powers that
are necessitated by a particular ward's condition. Family members, friends,
social service agencies, attorneys and even for-profit entrepreneurs may
petition to be named as guardian.
Judges often out of expediency grant the
guardian complete powers over a ward despite the principle of limited
guardianship. Guardianship proceedings are assumed to be non-adversarial and
thus guardianship proceedings are to serve the client's best interests rather
than to follow the client's instructions or wishes.
An "emergency" guardian may be
appointed by the court without so much as prior notice to the proposed ward if
it agrees with the petitioner seeking guardianship that delay would likely
result in harm to the ward's health, safety or welfare. Thus the ward, who has
the most to lose in these proceedings has often little or no input, in addition
family members may not even be appraised of the court proceedings until after
emergency guardianship has been already established -- thus de-powering them to
act as advocates for their family member. A guardianship terminates only when
the ward dies or the court rules that there is good reason to reconsider the
arrangement such as the ward regaining a marked degree of competence, the
guardian spending down the ward's entire estate until it is no longer able to
pay bills, or misconduct on the part of the court appointed guardian.
For profit "professional" guardians
are allowed to be compensated from their wards' accounts for the services they
provide, and many have seized the economic opportunity presented by the
incapacity of others by making a business of acting as a guardian. They have
cooperative business financial relationships with a variety of service providers
such as doctors, hospitals, lawyers, courts and government agencies responsible
for mental health care. Emergency placements are prone to abuse by the
professional guardianship industry and professional guardians making financial
decisions for their own self interest. Professional guardians know how to
manipulate the medical and court system to use procedural loopholes of the
emergency guardianship procedure to gain legal and financial control over the
ward's rights and assets and total control over the ward's medical care. With
no notice at all to the ward or ward's family, the entire life savings can be
stolen, their home sold at fire sale prices and all valuables and personal
possessions plundered and sold often at action. In addition attorneys acting as
guardians may charge exorbitant fees or commissions to the ward's estate thus
bankrupting the life savings and assets of the ward.
The use of guardianship power can be used to
ensnare the vulnerable elderly and disabled patients into substandard nursing
homes and Medicaid fraud schemes. Guardianship abuse can involve situations of
clinical medical human subject experimentation -- thus using guardianship to
get past the requirement of informed consent necessary for human subjects
protections by having the guardian blanket endorse any medication without
question that the treating physician wants to use. This permits kickbacks to
the prescribing doctors to go unnoticed by medical authorities and by passes
that pesky paperwork required by National Institute for Health for human
subjects -- in addition it gives cart blanche to use "off label"
medications -- especially psychiatric medications which are routinely used for
chemical restraint of patients. This trend is of course, encouraged by the
blossoming pharmaceutical market in drugs for dementia, Parkinson's and
Alzheimer's as well as other mental disorders like depression. In the United
States governmental agencies which legally participate in human
experimentation, like the Department of Health, Education and Welfare and its
subsidiaries like the National Institute on Health (NIH) and the National
Institute on Drug Abuse (NIDA) must have legal policies and regulations which
include standard "human consent forms" to be filled out by participants
to acknowledge that they are participating in human experimentation, thus
keeping the United States government in compliance with the Nuremberg Code of
International Law and other international human rights standards. Thus in
clinical or research studies additional informed consent must be used to
protect the human rights of the subjects. Informed consent is a requirement,
not a courtesy. This is especially true if the human subject is going to
undergo any evaluation, testing, treatment or procedure that is not part of
standard medical care.
The principle of Free, Prior and Informed
Consent is an important human right which has been addressed in many
international and domestic laws and practices. When treatment is initiated
against the wishes of the patient and without informed consent then it must be
determined that the treatment itself does not constitute punishment and that
the medical necessity has been shown to convincingly exist. Many in the field
of human rights believe that forced psychiatric treatment can be humiliating
and degrading and leaves lifelong stigma and emotional trauma to the patient
and can impact the patients' life in a negative way permanently. Essentially,
people have the right to make treatment decisions. Principle 19 of the UN's
"Principles for the Protection of Persons with Mental Illness"mandates
that:
"Informed consent is
consent obtained freely, without threats or improper inducements, after
appropriate disclosure to the patient of adequate and understandable
information in a form and language understood by the patient on:
(a) The diagnostic
assessment;
