Nationally the present guardianship systems lack uniformity; the probate courts are unable or refuse to monitor guardians; and the legislatures provide little or no oversight.

The Massachusetts guardianship system, as with other state systems, is plagued with the following failures:

1) failing infrastructure,
2) severe personnel problems,
3) budget cuts,
4) lawyer misconduct,
5) use of chemical restraints in violation of the Rodgers cases,
6) judges who rubber stamp whatever a guardian presents to clear a docket,
7) insufficient medical justification for guardianship,
8) denial of the ward’s right to retain counsel,
9) lawyer non-compliance with SJC Rules,
10) court’s failure to meet its obligation to ascertain the ward’s wishes,
11) court’s failure to meet its obligation to oversee guardians and prevent their egregious conduct,
12) lack of judicial accountability, and
13) the court’s abuse and deception regarding the probate exception to deny due process and access to other court jurisdictions.

State probate courts have confused the rationale for the probate exception as well as its scope. Now, especially since Marshall v. Marshall, courts can no longer use the limited “probate court exception” to dismiss widely recognized torts (such as breach of fiduciary duty, conversion, unjust enrichment, RICO, etc.) just because the issues intertwine with proceedings in probate court.

Probate courts cannot be allowed to block federal jurisdiction over a range of issues well beyond probating a will or administering a decedent’s estate; moreover, a [probate or] district court cannot dismiss a claim concerning accounting of assets removed from the decedent’s estate while the decedent was alive. “[T] he removal of [those] assets from [the decedent’s] estate during her lifetime [removed] them from the limited scope of the probate exception [as in the Eklund case].” The probate court’s deception on the public along with other agencies (such as county District Attorneys, state Attorneys General, etc.) aiding and abetting in disseminating false information, allows these entities to hide behind an invalid expansion of the probate exception to avoid increasing their work load.

The national probate court systems, as that in Massachusetts, are a “system in name only, operating on automatic pilot and carried forward more by past momentum than by any compelling vision of the future.” Said courts “can control neither the increase in the number and complexity of cases filed before it nor the resources available to it.” These probate courts have manifested a reputation for bias and corruption – case in point, the Dorothy Luck case, Tarrant County, Dallas, Texas (see www.fwweekly.com, “grabbing the purse”). See “Other Cases.” 

Unfortunately, “[m]oney makes the guardianship world go round” due to the expense associated with needed adequate reform to protect the rights of incapacitated individuals and due to the failure of a guardianship system that allows exploitation to these vulnerable people. If such exploitation were not so lucrative, most of these for-profit guardians would shift their attention elsewhere as indicated in reports contained in such publications as Massachusetts Lawyers Weekly. Presently, the system is driven by “[u]nwanted paternalism of overzealous health-care and human-services professionals [and financially motivate, for-profit guardians] who often [seek] to intrude as co-conspirators with self-interested family members.” 

To correct for “[r]outine circumvention of due- process guarantees, ill-trained guardians failing to perform basic responsibilities, inadequate public services, wide variances in funding for services [intra and inter state], inadequate [court] monitoring of guardianships and conservatorships, and the failure of available alternatives to obviate the need and demand for guardianships and conservatorships,” one could completely overhaul the existing system with active specialized judges for guardianship hearings, reviewing procedures and audits, guardian monitoring, etc. or abolish guardianship, “[a] state-sponsored, preemption-of-individual-rights model” for “[a] disability-accommodation-and-support model.” Tinkering with a broken system is not an option. Immediate change is imperative. 

To this end, www.probatecourtreform.com is attempting to highlight and address these issues along with violations of constitutional rights and human rights abuses.

Links are made to the following websites dealing with various facets of these issues:

1) www.international-guardianship.com (elder exploitation and abuse, etc.)
2) www.mdac.info (human rights abuses, etc.)
3) www.consumerfinance.gov (elder financial exploitation, etc.)
4) www.warren.senate.gov (or other appropriate representative)

See the following papers for annotated references:

Massachusetts Trial Courts: Abuse and Deception Regarding The Probate Exception To Deny Due Process and Access To Other Court Jurisdictions Necessitating A Call For Its Statutory Override

Guardianship Abuse Of The Elderly: A Violation Of Constitutional Rights Precipitating An Extreme Punitive Civil Penalty