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Expanding Network of Abusive Guardianships

By       Message Janet Parker     Permalink
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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.

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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)]

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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.

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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;

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