Judges, Due Process, and YOUR LIBERTY

Interestingly, a post below is about a judge who has been highly suspect of violating the rights of more than a few people.  So when the public outrage over judicial misconduct and lack of court oversight led to a panel for probate court reform…guess who was appointed?  You guessed it…the (dis)Honorable Judge Donahoe.

The den of thieves that is Maricopa County Courts appears to be entangled in all sorts of schemes to force the appearance of justice, while working together to support their stranglehold on our liberty.  They have some help, namely the fiduciaries who have been at the center of what Lou Ann Anderson, the policy director for the Texas American’s for Prosperity, calls “the court ordered redistribution of wealth”. 

Such is the reason the Arizona State Legislature must take a stand for the rights of all citizens and DEMAND any probate reform establish “Clear and Convincing” evidence as the evidentiary standard in all cases of conservatorship.  They have that chance in the amended version of SB1499, the morphing of HB2424 and SB1499.  Unless, of course, our lawmakers listen to the money-grubbers who do not want limits on how to legally steal, liquidate, and leave you penniless.

Such language was in the original bill, HB2424, until the Fiesta Bowl-esque influences stepped up and fought it.  What (or who) on earth would motivate the removal of language respecting the 5th Amendment in favor of an arbitrary and subjective standard?  Voters should be outraged and demand it be re-inserted! 

Arizona appears to be the only state where taking away your right to determine how you spend your money, your time, the right to marry, the right to buy or sell property, basically your liberty…is met with such a low standard of evidence.

Are you willing to roll the dice and take a chance on getting a “good” judge, what about for your loved ones?  What if you had a judge who ordered not one, not two, but 8 different doctor evaluations until finally someone declared you incapacitated and took away your liberty?  Well, it is happening! 

And it could happen to you!  No one is exempt when the standard of law is so flimsy as to deny due process.

If you believe the law should be written to protect the rights of citizens against those who would seek to do harm, should uphold the standards of due process, and that the 5th Amendment is not for sale to the highest donor ( again, can you say Fiesta Bowl) then “Clear and Convincing” evidence must be included in this year’s probate reform legislation.

Words that would defy your right to personal property!

The definition of wealth is like beauty, in the eye of the beholder.  My personal wealth is whatever I own, regardless of the worldly evaluation.  But, did you know current Arizona law allows your private property rights, including your personal wealth, to be taken without full due process? 

Absolutely!  It is called conservatorship.

Public demand to stop this insanity came after years of documented abuses by fiduciaries.  Current law has allowed everything from the draining of personal wealth leaving the once solvent ward penniless and destitute, the destruction of marriages and families with divorces filed and homes sold by fiduciaries forcing families into homelessness, restriction of visitation, the severe personal neglect, and even untimely demise of individuals in the care of their court appointed “protector” have been alleged.   

It was easy money.  No one was watching.  And the rules for placement were very loose.

While placing someone into guardianship requires clear and convincing evidence and the right to a jury trial, conversely establishing a court ordered conservator has no such evidentiary language or threshold.  By default, the most loosely interpreted methods of evidence have been used to strip individuals of their rights.  Now comes a bill, HB2424, which would require the same standard in all cases where a private citizen is potentially limited by court order from being fully in charge of their own matters.  That standard is clear and convincing evidence.

Deprivation of a property interest is protected in the 5th amendment to the Constitution, and is of absolutely equal stature with “life and liberty.” We should not be so cavalier with the deprivation of one’s property interests. The “takings clause” of the Fifth Amendment is very clear… “No person shall…be deprived of life, liberty, or property, without due process of law…”

So, why would anyone feel anything less than “clear and convincing evidence” would be grounds for the court ordered removal of individual rights?  In the absence of a criminal action, how can anyone justify anything less as an evidentiary standard for the wholesale, court ordered “taking” of one’s property? 

Being placed into conservatorship results in the loss of all control and use of one’s own funds, severely limits their franchise rights, restricts all aspects of their life.  If I cannot choose when, how, how much, or where to spend my money, If I have no control of my own land, am not legally able to enter into a binding financial contract or sell my own holdings…then what personal liberty do I have left?

Moreover, losing control of one’s property is losing control of one’s life

As in all cases when profit and greed are at the center of public policy, those with the most to lose have lobbied the legislature trying to disguise their motives.  They have gone full force as there is great wealth at risk. Not their current wealth of course, but the prospect of your wealth in their hands.  The very entities that can be found at the center of all the horror stories, the negligence, and the profiteering at the expense of others, the fiduciaries, are now demanding protection to keep up their bad acts!  They are demanding the “clear and convincing evidence” standard be removed from HB2424. 

Of course they do not want such a standard…what cash cow will they have if that goes away?  The status quo is serving them quite well, thank you.

Such an egregious attempt at circumventing due process cannot be tolerated and should not be supported!

Kudos to Sen’s. Ron Gould, Don Shooter, Lori Klein, and Sylvia Allen for their particular vigilance in the Senate Approps hearing yesterday in defending our rights! 

The People’s Bill-HB2424

The role of “We, the people” in the effort at much needed probate reform is proving to be substantial and with something to show for their diligence.  A group of people, previously unknown to each other and from extremely diverse backgrounds, found themselves bound by an experience the great majority of Americans would think unbelievable in our free society.  

No one understands just how horrendous the current probate system can be, except those whose families have been devastated; the lives of loved ones reduced to being warehoused and held until death or destitution, whichever comes first.  Watching others control the life of one so dear, depriving them of lifes pleasures and draining them of all dignity.

So, they did what our Constitution demands.  They fought for their rights and demanded action from those who are elected to serve.  They have not given up and won’t be defeated.

Today, HB2424 will be heard in Senate Appropriations.  Once again, victims of probate abuse will testify.  They will tell the stories that have been made all too public in the accounts of local and national media.  The desire for disbelief will be palpable as no one will want to believe our society could treat the most vulnerable among us in such a cruel and heartless way.  But, it is true.  They will be crying out for reform.  Literally crying, their pain is visceral and real.

But, there are forces fighting against the reform.

Of course the hired-guns, paid to “kill the bill” on behalf of special interests who could care less about the lives of so many but look to their next payday as the motivation for their actions. 

The fiduciaries association who have profited greatly from the lacking and lazy courts. 

The “elder law” attorneys and their lobbyist, Susan Bitter-Smith, who have made fortunes from the life savings of those under their care with a steady income requiring little effort but the monthly billing and occasional appearance. 

Those who would deny such a need will be there, pointing fingers at others.  No need to change,  we are the good guys…you can trust us….wink, wink.  They will appear so professional and say “all is well”.  They will claim these are unusual cases and have unusual ends since they are unable to deny the atrocities committed under their watch and by their hand.  They will do this while charging their clients by the hour to retain the right to do so.

The hearing will be held in SHR 109 at 2:00 PM and will be broadcast on streaming video from the Arizona Legislature, either via internet or on cable TV.   Do not think this is not about you, it is.

 Complacency and acceptance of the status quo is the nesting place of corruption.   

    

The Opportunity to Do the Right Thing

UPDATE: HB2424 is a probate reform bill presented to the Arizona House of Representatives due to the multiple local media accounts of probate abuse and following the General Accountability Office investigation and report to the US Senate Committee on Aging, naming Arizona as among the worst for exploitation of vulnerable adults.  HB2424 seeks to remedy the issues identified in the investigation and provide accountability and transparency to the process. 

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Rarely does the opportunity to so much good come along but today is that day in the Arizona House.  But the ever present question lingers….will they do it?  

HB2424 will be heard in COW today, will the hours of public testimony, the hundreds of emails, the countless calls from private citizens statewide all begging the legislature for passage of the bill be enough?

Will the national report citing Arizona as one of the nation’s worst offenders in abuse of vulnerable adults and the story after story after story in the media, both local and national, of Arizona horror stories at the hands of the courts be enough?

Will the photos, videos, and accounting reports of the atrocities we would never believe possible, documenting the reality of probate abuse, be enough? 

Will the court ordered redistribution of wealth be so offensive that it will be stopped?

Will it all be enough to convince the House to buck the court and their tax-payer supported lobbyists in their opposition to any change they do not control?  The very court that is responsible for the end result of this wrongdoing!

Will it be enough to counter the obscene amount of money the opposition has spent to try and kill this bill, using multiple high powered  and well known lobbyists, all that their money can buy?  Will fears of missing out on donations in future elections weigh more heavily than the real lives of real people?  Will they let activist judges, profiteering lawyers, corrupt fiduciaries, and self-serving individuals be the voice they listen to? 

Current law says the court must find the least restrictive means to deal with individuals in the system.  Then why have wards and protected persons have been allowed to be physically abused and financially taken advantage of by fiduciaries and guardians?  Kept from their families and drained of every last dime before they are put on welfare until the day they die? Why would the very forces that have been responsible for such actions be valued as the voice of reform?

Or will the House actually take this opportunity to do the right thing and pass HB2424?

CALL SPEAKER ADAMS, MAJORITY LEADER TOBIN, & PRO TEM MONTENEGRO

PLEASE ASK THEM TO DO THE RIGHT THING…VOTE YES ON HB2424!

We Are The Courts and We Are Here To Help You—

The letter below is just one story of many, the phone number has been removed for the sender’s privacy but the message is the same:

I am sending this to you and others who live in Arizona.  As a few of you know, my 92-1/2 old mother became a ward of the probate court in February 2008.  At the time I knew nothing of the history of the probate court system.  At that time I agreed she would be better off because she was spending too much money on junk coins and other “stuff” salesmen easily sold to a lonely widow who still loves men! My mother did not have a fortune set aside but with reasonable management it would last her and she could stay in her house until she passed. Now, the reality:  The court-appointed conservator, a for-profit company, managed to spend all of her money in about 28 months.  I am her court-appointed guardian so all the conservator had to do was pay normal household bills and try and settle some outstanding bills to those salesmen I mentioned above. We (her family) requested financial information numerous times but the most I received were incomplete schedules which often raised more questions than they answered. After the conservator spent all the money the court released them from that position.  Only at that time, after complaining again, did I get copies of monthly billing statements from the conservator.  (I have never received any financial statements so still do not know all of the liabilities that are still lurking out there.) You could have knocked me over with a feather.  The conservator charged $85 – $95 an hour for entry-level clerical duties.  Accounts payable clerks also were billed at those rates but were not skilled in those positions, so things took longer to get done and often had to be redone.  And, you guessed it, my mother had paid for every single hour. I am only going to give you one example, but it irritates me so much I need to vent a little.  In May 2009 my mother turned 91, and the conservator wanted to throw her a birthday party.  Nice gesture, I thought, especially since my mother’s court-appointed attorney, the other relatives and I understood this was going to be a gift from the conservator.  The party was very nice, but the bill was over $5,000, and as I found out a year later it was billed to and paid for by my mother!!!  House cleaning was charged at $95 per hour.  Invitations were bought and returned at $95 and more per hour plus the cost of the invitations.  The conservator knew my mother’s finances and any reasonable person would know she could not afford that amount of money.

There are two legislative bills that have been introduced this year:  House Bill 2424 and Senate Bill 1499.  THEY COULD NOT BE MORE DIFFERENT.  HB 2424 was put together with input from people who have experienced such financial and other abuses at the hands of the probate courts (I was not involved because I just became aware of the dueling bills.)  It is not perfect but goes a long was in making probate court transactions open to the wards and other interested parties.  SB 1499 was written by a committee set up to fix these probate court abuses.  Too bad the committee members are the same judges, commissioners, attorneys and conservators that are currently committing the abuses.  Talk about the fox watching the hen house!  SB 1499 does not begin to address court reform.  I’m sure the bill was introduced by legislators who had been told by the committee members that only a little “tweaking” was necessary.  This bill is a sham being perpetrated by the people who need to be held accountable. I’m sorry this e-mail is so long, but the word needs to get out that HB 2424 is GOOD, SB 1499 is BAD, BAD, BAD. If you have any questions call me at 602-xxx-xxxx and I will put you in touch with people who can answer them better than I. Thanx for taking the time to read this.  It is a very sore subject with me as my mother sits, not in her house, but in a room and board home paid for by the Arizona Long Term Care System!!!

Bob

Show Me the Money… And I’ll Show You Someone Who Opposes Probate Court Reform!

PART ONE

1. Publicly Paid Lobbyists AKA Legislative Liaisons:  These folks move about from legislative office to office, wearing the cloak of the courts.  Invoking their bosses “The Supremes”, not to be confused with Diana, Mary and Florence, they are never denied access. They work on the public dole but in the case of probate reform, are anything but publicly minded.

Speaking in committee last week they gushed over SB1499 as the answer to all the courts woes.  Unfortunately, after the testimony of the multiple citizens who waited for hours to testify, 1499 was lambasted as ineffective, failed to come close to meeting the serious needs of the public, and ultimately described by Sen. Linda Gray as nothing more than a vehicle to amend in hopes of offering true reform.

The next day in the House, same story, different verse.  SB1499 is great, HB2424 is an intrusion of the legislature into the courts and should not pass.  Then the PEOPLE spoke.  It passed.

DRAT!  Good thing for these folks that they work for the pay-check fairy, AKA the government, and do not have to worry about how the money to pay them is provided.  Someone should tell them…”You know those folks who just stood in line for over an hour to register on the kiosk, then waited another couple of hours to testify, then came back to do it again the next day, taking time off of their jobs to be heard.  THEY PAY THE TAXES THAT PAY YOUR SALARY. AND PAY, AND PAY, AND PAY! THEY ARE THE REASON THE COURTS EXIST.”  That may be a new tune to The Supremes!  

2. Court Ordered Fiduciaries AKA bottom feeders…OK, not all of them: Assigned to care for those the courts deemed incapacitated, it is a darn good gig.  It’s a well paying “Job For Life”, and by life, I mean the life of the latest victim…um..er…client or until said client runs out of money, whichever comes first.  And if you think the re-stocking fee on returned merchandise at the local big box store is bad, try saying “Thanks, but no thanks” to the court’s choice of fiduciary.  If things aren’t right and you have hopes of getting a replacement, you better be ready to pay big time! 

They will defend their appointment and the right to keep your account (that is what you really are, an account) in court with THEIR high-priced lawyers and ….TA-DA—YOU PAY FOR IT!  Yep, you pay for their lawyer to tell the court why you should not be allowed to get another fiduciary.  No worries, it should only run you a few hundred thousand for their bill.  That’s part of the beauty of SB1499, it cements the stranglehold the courts and fiduciaries have over your future making it even harder to escape their grips.  HB2424, the bill written to respond to the outrageous but true accounts of current probate practice would allow the change once a year without the burden of proof being put on the “account”, or the entity formerly known as a private citizen with rights.   

AH HECK, what’s a few bedsores or broken hips, might as well stay with them.  Even if they are sucking you dry to open your mail, by the time you fight the B-ST-R-S in court, you will be broke anyway.  Either way sooner or later, you’re in the state system.  For this you saved all those years?  Maybe blowing it at the Casino wasn’t such a bad idea after all!

STAY TUNED FOR PART II: Activist Judges and Millionaire Attorneys…

THE COURTS vs. THE PEOPLE Round 1: THE PEOPLE!

The Arizona State Legislature was busy as bills had to be heard in their chamber of origin by the end of the week. Among them, the competing versions of attempts at probate reform. 

DAY ONE: SB1499 sponsored by Sen. Adam Driggs, R-LD11, the product of the court committee on probate reform.  The committee, made up entirely of judges, attorneys and fiduciaries and without even one public member, was charged with “reform” after the press began to report the travesty of justice experienced by many who have entered the hallowed halls of the courts.  Sen. Driggs said in testimony that “85% of cases go well, but we only hear about the 15% that don’t.”

An observer in the audience had this to say,

85% compliance is good if you are among the 85%.  But if our murder rate was 15% would they find that acceptable?”

Jon Kitchel said in testimony,

SB 1499 is full of feel-good language but does very little to improve the system.”  

Kitchel, identified himself before the Senate Committee on Public Safety and Human Services as an attorney who “does not represent fiduciaries but works for wards”. 

Amy Love, lobbyist for the courts, spoke to the merits of the bill and was followed by Justice Ann Timmer who expounded on certain aspects.  They were followed by Susan Bitter-Smith, lobbyist for the Elder Law attorney group and Jay Polk who support the bill. 

Then the people spoke. And spoke.  And spoke. 

Mothers, fathers, brothers, sisters, sons, and daughters, and Kitchel spoke in opposition.  The reality of the courts played out before the committee that seemed very confused at the completely different perceptions portrayed between the court spokespersons and the people who actually have lived through the process.

  • Admittance of hearsay as sufficient evidence to keep a family in a costly legal battle for almost 2 years without an evidentiary hearing or an investigative report.
  • Court ordered physician evaluations when an existing evaluation exists, multiple doctors surveyed before a singular finding of incapacitation is rendered, with that evaluation used for the purpose of the court.
  • Refusal of the court to uphold established directives.  Legal Trusts, Powers of Attorney, Medical Powers of Attorney, and other legal directives are discarded with the courts inserting paid, private fiduciaries instead at the cost of millions to estates.
  • Extreme cost of restoring one’s rights or to request a change of fiduciary. The fiduciary may use the funds from the ward’s estate to maintain and defend their position.
  • Detrimental care of wards under a fiduciary when families are legally restricted from contact with the ward.  

The final speaker shook the committee and the crowded, standing room only audience.  Clair Di Pardo was named guardian in her mother’s directives, only to be dismissed by the court and replaced by Sun Valley Group (SVG).  Ms. Di Pardo showed photos of her mother just prior to being placed in a care home at the order of SVG. Restricted from visiting her mother because of her objections to the placement, four months went by without seeing her mother.  When she did, what she found was horrifying.  Showing photos of her mother’s condition to the committee, an inches large stage four bed sore that had invaded tissue to the bone and another on her heel that was turning black with no antibiotics are pain medicine being given in the care home.  Septic and dying, she had to be hospitalized to recover.  The cost of this care, $500,000.

In attempting to have her mother released from the court, she has had 9 judges or commissioners in 31 months.  

Members questioned Ms. Di Pardo then requested Judge Timmer return.  Clearly confused as to how the system could allow such a condition to occur, Sen. Gray asked the judge to explain.  Judge Timmer said she was aware of the case and gave some explanations such as judicial rotation.      

Then the vote…To a person the committee agreed the bill was insufficient and did not go far enough, stated the information they had heard from the public was compelling and demanded further review of need, and requested input from the public for the future of the bill to be successful in meeting that need.  The bill passed with only Sen. Landrum-Taylor voting no due to her belief the bill was seriously flawed in meeting the needs of the court and to protect the public.

DAY TWO: HB2424, the product of a cooperative effort of legislators, private citizens, attorneys for wards, and input from the courts and other stakeholders.  Sponsored by Rep. David Smith, R-LD7, this bill is opposed by those that support the Senate bill.

Amy Love, on behalf of the court, asked the committee to stop this bill and support the Senate bill.

The testimony of citizens, all impacted by the current implementation of the law, proceeded.  Many of the same issues were raised as in the Senate committee, however people spoke in support of HB2424 and to the remedies it provides.

The final speaker was Brad Lund.  The grandson of Walt Disney, at the age of 40 he is fighting to avoid being placed under the care of a guardian after a disgruntled distant family member filed the action with the courts.  He stated his battle has gone on for 16 months, no evidence of need has ever been offered, hearsay is the only evidence ever submitted to the court, no court investigation has ever been filed, and to date no doctor has ever declared him to incapacitated.  When asked by House Judiciary Chairman Rep. Eddie Farnsworth about the cost of his legal defense, Mr. Lund answered, “Over a million dollars.”

Farnsworth concluded as he voted referencing the courts objections,

We do not make laws for the people who do the right thing but for those that don’t.  There are bad actors in this process and we need to protect the people from the abuses we have heard today.”      

The bill passed the House with 8 “Ayes” and 1 “Present” by Rep. Tom Chabin.

The Courts versus The People

A big thank you to Molly Pitcher for posting on the issue of probate reform for the many who wait and work toward that end.  Thanks to Sonoran Alliance for opening this forum up to a voice for reform. 

This is not about reform for reform sake just because it sounds like an anti-government trendy notion or to avenge a personal grudge.  There exists a very pervasive and persistent corruption of intent within a sub-culture of self-directed, unaccountable, and extremely powerful individuals.  Judges, attorneys, and fiduciaries have created an inbred perversion of what most people perceive as an orderly and just process.  The law is silent in some areas and plainly ignored in others. Whatever the genesis of the corruption; the duplicity of judges, collusion of attorneys and fiduciaries, the lack of legal oversight, or the lethal combination of all three, the damage is done and it demands reform.   

It will require more than new people, it will require a new system.  Accountability, transparency, and the guarantee that no matter how old, how infirm, how wealthy or poor, the Constitution still applies and due process is not denied.      

This week is big.  It is the battle of The Courts versus The People

The Judges Association, The State Bar, and Susan Bitter-Smith represent the Senate bill, SB1499.  VERY LONG and very weak.  Pages and pages of “may” and very little of “shall” in directing how the rights of people are to be protected, their personal wealth secured, and families respected.  No recourse, lots of double-talk, and certain protections for judges.  The provision allowing for the exclusion of families in disclosing the management of the ward and the estate is of great concern.  SB1499 will be heard in the Senate Committee on Public Safety and Human Services, Wednesday 2-16 at 9 AM in SHR 3.   The opposition is mainly citizens who are, or have been, in the probate system as well as attorneys who advocate for the rights of wards. 

In the House, HB 2424 was developed with input from and the support of families, attorneys, and concerned citizens following the media stories of probate abuse.  Short but specific, amendments continue to be developed to insure recourse is preserved, training and accountability are imposed, and the trust people should have in the courts is returned.  Allowing for civil liabilities for judges, this bill will face opposition by judges, fiduciaries, and their attorneys.  HB 2424 will be heard in the House Judiciary on Thursday , Feb. 17 at 8 am in HHR4.  

Stay tuned.