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.

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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;

(b) The purpose, method, likely duration and expected benefit of the proposed treatment;

(c) Alternative modes of treatment, including those less intrusive;

(d) Possible pain or discomfort, risks and side-effects of the proposed treatment."

Under the Convention on the Rights of Persons with Disabilities -- General Principles (CRPD Article 3)

"(a) Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;

(b) Non-discrimination;

(c) Full and effective participation and inclusion in society;

(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

(e) Equality of opportunity;

(f) Accessibility;

(g) Equality between men and women;

(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities."

The use of guardians has expanded so greatly that it now used often on those merely physically "incapacitated." Persons who are disabled or elderly are not automatically "incompetent" to "incapacitated," and thus may not even need guardianship. These for profit guardians are really predators on these vulnerable populations. Unethical lawyers and other "fiduciaries" appointed by the courts are meant to protect their wards, but many of whom become nothing more than abusers. Wards, instead of being protected by the court system, are victimized by it with the judge rarely even speaking to the ward and strangers making decisions in closed rooms in secret often without informing the ward or the ward's family. Strangers are given total and absolute control of life, liberty, and property of their wards.

The American Taxpayer ends up paying the tab for long term continued care for life of the ward under Medicaid and Medicare. Because of the general aging of our population and the growing number of baby boomers now becoming elderly there is a ballooning number of guardianship cases reaching the court system. Guardianship allows these decision makers to maximize profits for the case managers, medical professionals, agencies and medical hospitals who provide the care. Crisis situations are created to maximize Medicaid reimbursement and to allow additional extended hospitalization at high rates. The ward is not permitted to make decisions for less restrictive care and may be drugged with psychotropic medications to force compliance. The paid fiduciaries often secret their wards away in nursing homes where they are kept chemically restrained with unnecessary and dangerous drugs. Often family members are denied any say in their care, and sometimes denied visitation. The ward becomes a burden on the American Taxpayer for lifelong very expensive care and then when no longer an easy patient to manage as a cash cow for the care provider -- the ward is dumped into the street homeless to fend for themselves. At this point, often concerned family members or friends are forced to provide care without the benefit of the welfare monies which had been previously depleted by the former guardians.

The system works with the cooperation of uncaring/corrupt judges misuse the law and engage in blatant violations of due process, civil/human rights violations. Often there is a paper trail of pretend procedural due process in which the victims aren't always given notice of hearings at which their competence will be adjudicated, aren't always allowed to attend, and often don't have lawyers. If the court does appoint lawyers, they are often closely allied with care providers and other professionals that they do not even superficially represent the wards best interest. So court proceedings are a sham -- just pretense. The overburdened court system values efficiency and quick processing -- often refusing to even permitting the ward to take part in the proceedings which are determining his/her future. There is an entire industry of professionals who specialize in this very lucrative practice which strips the wards' of their property, their liberty and often their very lives. The attorneys often are too closely affiliated with other professionals who make their living in this special area; and do not properly represent the victims' interests. Corrupt judges do not apply the required evidential standards in making adjudications of incompetency, and frequently fail to obey the protective statutes, or include specific findings of fact.

Guardians and representative payees do not always act in the best interest of the people they are appointed to protect. Some have conflicts of interest that pose risks to incapacitated people. While many people appointed as guardians or representative payees serve compassionately, often without any compensation, some will act in their own interest rather than in the interest of the incapacitated person. Oversight of both guardians and representative payees is intended to prevent abuse by the people designated to protect the incapacitated people.

There is little general oversight of guardianship reporting and very little on the ground -- eyes and ears -- of the court to insure that these vulnerable wards are properly cared for and not abused. A majority of jurisdictions do not require personal visits to the incapacitated individual. Financial resources are transferred to the guardians thus leaving the individuals with diminished capacity in complete dependency on the guardians' decisions. All of these trends combine to underscore the dire need for oversight when fundamental rights. Proper and accurate financial management of the incapacitated person's assets is critical, so courts also often require systems to verify and investigate the financial information in accounting.

Some important statistics from U.S. Courts: (AARP 2006 report, Guardianship Monitoring: A National Survey of Court Practices) Mechanisms serving as the "eyes and ears" of the court are critical to protect these vulnerable wards of the court. Only 27.6% said the court has a computerized system to track the number of adult guardianship filings and dispositions and identify problems. In some states the guardian must notify the ward annually of his right to seek a restoration of rights and require the guardian to file a proof of the notice. Since some incapacitating conditions may improve or resolve completely, it is critical that the ward be notified so that he may seek to limit the scope of the guardianship or have it dismissed altogether. Some 43.4% of respondents said that funding for monitoring is unavailable or insufficient. Nearly 20 percent of courts do not require annual accounting of a ward's finances. Among courts that do collect such information, more than one third do not have an official who is designated to verify the content of the guardians' reports, and less than 20 percent verify every report. In more than 40 percent of courts, no one is assigned to visit individuals under guardianship to determine if they are being abused or financially exploited. In the AARP study only 9.3% of survey respondents said the court maintains data on whether the case involved elder abuse. Over one-third of respondents (34.4%) stated that no one is designated to verify the information in reports and accounts. No one is designated to visit the incapacitated individual and verify the information in guardian's reports and accounts in 40.3% of jurisdictions. Only about a quarter (25.9%) of reported that someone visits the person on a regular basis.

Does an accounting trigger an inquiry into an incapacitated person's well-being if a possible problem is uncovered? Close to 38% of respondents said the court investigates in such a situation, 13.4% said review of the financial information focuses only on whether the calculations are correct, and 25.1% said that consideration of the individual's well being in review of the accounting varies. Over two-fifths (43.4%) of respondents stated that funding for monitoring is unavailable or clearly insufficient.

The role of the attorney for the incapacitated individual in monitoring the person's well-being after a guardian is appointed varies greatly. According to one-third of the respondents (33.1%), the court dismisses the attorney after the appointment and has no further role. Only 7.5% stated that the attorney remains the attorney of record and routinely stays actively involved throughout the case, with others describing a lesser role. Interaction between courts and community entities concerning guardianship monitoring is relatively infrequent. When there are problems with the guardianship there are few repercussions, in over a quarter (25.6%) of cases the court revokes the appointment and appoints a successor guardian, and 16.0% of courts ask an investigator or volunteer to obtain more information. But surprisingly even when there are clear problems, no one visits the incapacitated individual in the jurisdictions of 40.3% of those responding. (AARP 2006 report, Guardianship Monitoring: A National Survey of Court Practices Guardianship by Naomi Karp, AARP Public Policy Institute and Erica Wood, American Bar Association Commission on Law and Aging).

According to a study in the Los Angeles Times, more than half of all guardianship petitions filed by professional guardians in Southern California between 1997 and 2003 were granted by the courts on an emergency basis. Of these emergency appointments, 56 percent were granted without notice to the proposed ward, 64 percent before an attorney was selected to represent the ward, and a stunning 92 percent before an otherwise mandatory court investigator's report. A Los Angeles Times investigation similarly uncovered numerous instances of egregious abuse by guardians where evidence of abuse was already in the courts' own files; most county courts in Southern California ignored an online registry created to identify and track problem guardianships. And gross over billing often occurred with the explicit approval of probate judges, who must sign off on guardians' expenditures in most jurisdictions. A Houston Chronicle investigation found that the court routinely allowed guardians to charge their hourly rates typical for legal work when performing even the simplest non-legal tasks.

Clearly, we must provide better oversight and transparency into the guardianship system and provide guardian monitors with human rights advocacy training provided by the courts - so as to keep the guardians performing their job with ethical integrity.

References on Guardian Abuse:

United States Government Accountability Office GAO Testimony Before the Special Committee on Aging, U.S. Senate, GUARDIANSHIPS, Little Progress in Ensuring Protection for Incapacitated Elderly People Statement of Barbara D. Bovbjerg, Director Education, Workforce, and Income Security, (202) 512-7215, September 7, 2006, GAO-06- 1086T.

Fields, Robin, Evelyn Larrubia and Jack Leonard. "Guardians for Profit." Los Angeles Times (November 13-16, 2005).

Fields, Robin et al. "State Could Turn Elsewhere for Conservatorship Remedies." Los Angeles Times (December 27, 2005).

Kelly, Jeff, Maggie Kowalski and Candice Novak. "Courts Strip Elders of Their Independence." The Boston Globe (January 13, 2008).

Leonnig, Carol D., Lena H. Sun and Sarah Cohen. "Misplaced Trust: Special Report." The Washington Post (June 15-16, 2003).

Olsen, Lise. "The Pain of Probate Court." The Houston Chronicle (June 24-25, 2007).

Olsen, Lise. "New Payment Guidelines Ease Strain Probate Fees Put on Elderly, Disabled." The Houston Chronicle (September 4, 2007).

Teaster, Pamela et al., The 2004 Survey of State Adult Protective Services: Abuse of Adults 60 Years of Age and Older (Boulder, Colo.: February 2006).

United States Government Accountability Office GAO Testimony Before the Special Committee on Aging, U.S. Senate, GUARDIANSHIPS, Little Progress in Ensuring Protection for Incapacitated Elderly People Statement of Barbara D. Bovbjerg, Director Education, Workforce, and Income Security, (202) 512-7215, September 7, 2006, GAO-06- 1086T.

Wood, Erica F. The Availability and Utility of Interdisciplinary Data on Elder Abuse: A White Paper for the National Center on Elder Abuse, American Bar Association Commission on Law and Aging for the National Center on Elder Abuse (Washington, D.C.: May 2006).

Wood, Erica F. "State-Level Adult Guardianship Data: An Exploratory Survey," American Bar Association Commission on Law and Aging for the National Center on Elder Abuse, August 2006.

Yeoman, Barry. "Stolen Lives." AARP: The Magazine (January-February 2004).

Authors Website: http://www.medicalwhistleblowernetwork.Jigsy.com

Authors Bio:

Medical Whistleblower is an organization dedicated to advocacy and emotional support for those who have bravely stepped forward to "Tell Truth to Power" to the Medical Establishment. Medical Whistleblowers report Medical Fraud, Abuse and Neglect to State and Federal Agencies. Medical Whistleblower advocates for those who are defenders of human rights. Medical Whistleblower is a not for profit organization now located in Washington DC. Medical Whistleblower provides educational programs for the public, educational materials and brochures, publishes Canary Notes Newsletter, and provides advocacy through raising public awareness and public participation in the democratic process. The Executive Director of Medical Whistleblower is Dr. Janet Parker DVM.