05.02.2014 Author: Janet Phelan

US: No Place For Old Men

healt-insurance-counsellingMost wars are fought in public, amidst much fanfare and invocations of national pride, intended to rally the support of citizens and other sovereign states. Debates, stirring speeches, and then the trumpet call signifying battle all are hallmarks of public wars. 

The United States, however, has also launched secret wars. These wars may only be brought to public attention by a maverick, who may be embedded in a system he finds indefensible, or by independent and non-embedded media.

But how many times in history has the United States launched a secret war against a portion of its own populace?

And when has such a war taken place in courtrooms?

According to numerous sources, the United States of America is now assaulting the rights, the property and in some cases, the very lives of a specific demographic group—the elderly and disabled. And this assault is taking place in a most Kafkaesque setting—adult guardianships.

Adult guardianships (some states call these “conservatorships”) are generally initiated through court proceedings when there are allegations that a person may be lacking capacity. What this means, in layman’s terms, is that the individual in question may be alleged to be having difficulty handling his affairs or may have fallen prey to a greedy relative.

Upon the initiation of an adult guardianship, the alleged incapacitated person loses most of his rights and all access to his property. He may not even be allowed to hire an attorney to contest the guardianship.

In view of the fact that an elderly person may have a significant nest egg in savings, the opportunity for predatory and unscrupulous people to apply for a guardianship position is an obvious danger.

And this is where the problem begins. For not only has a cottage industry of professional guardians and conservators sprung into existence, but the abusive potential has become systemic, with judges rubberstamping the decisions of these professionals with almost no oversight provided.

Attorney Ken Ditkowsky uses the term “elder cleansing” to describe what is happening in these cases. According to Ditkowsky, elder cleansing has three steps: 1) First, writes Ditkowsky, “the victim is chosen” and a court remands the individual into the “care” of the guardian. After the legal proceedings, which are known to be sloppy in terms of protecting the rights of the alleged incapacitated person, then occurs 2) isolation and draining of the elder’s assets and finally 3)  medical abuse/indifference, resulting in nursing home drugging and eventually death of the elder/disabled person.

The perception that these guardianships are not only financially problematic for the alleged incapacitated person, but may also result in his or her death, is born out by case studies.

An example of this is what happened to Elizabeth Fairbanks, who was under a conservatorship in San Bernardino County. When she came down with pneumonia, the conservator, Melodie Scott, decided to withhold antibiotics and instead, ordered the woman plied with morphine. Morphine inhibits respiration and Elizabeth Fairbanks shortly thereafter succumbed to what is generally considered to be a treatable illness.

At the time of her death, Fairbanks’ estate was nearly depleted.

According to the National Association to Stop Guardian Abuse, what happened to Elizabeth Fairbanks is not unusual.

A report issued by the Government Accountability office in 2011 documented numerous cases of guardianship abuse and recommendations were tendered. The recommendations, however, only served to grease the wheels for more guardianships.

Recently, a number of attorneys have come under fire for voicing concern about the revocation of rights inherent in these guardianships. Illinois attorneys Ken Ditkowsky and JoAnne Denison have filed a federal lawsuit after the Attorney Registration and Disciplinary Commission formally charged them in disciplinary hearings. Denison is on trial for her license to practice law for the act of running a blog, marygsykes.com, in which there is both discussion of the Mary Sykes guardianship and also posted court documents. Ken Ditkowsky, who has been licensed to practice law since the 1970’s, has been recommended for four years suspension for his investigation into the Sykes case, which resulted in his contacting law enforcement and the Department of Justice, requesting an “honest and complete investigation of the Sykes case.” Their lawsuit, filed in tandem, alleges First Amendment violations of their rights to free speech.

Mary Sykes was placed under a guardianship and was never served with notice of the proceedings. Over a million dollars of her assets, including a number of old gold coins, have disappeared during the time she has been under guardianship and she has been isolated from family and friends for several years.

Arizona attorney Grant Goodman was suspended from the practice of law for two years after filing RICO actions on behalf of several people who were under guardianship.

And a noted Pennsylvania civil rights attorney, Don Bailey, was recently suspended from the practice of law for five years for making statements that the courts are corrupt.

The secret war against the vulnerable is not only taking place in the United States, however. A review of adult guardianships in several countries in the former Soviet bloc reveals similar concerns as to the revocation of rights, financial abuse and untimely death of those under guardianship in these countries. For example, Hungary was one of the first countries to ratify the international treaty, Convention on the Rights of Persons with Disabilities (CRPD).  However, in the case of Hungary, ratification was not followed by the necessary amending of domestic statutes which violate the Convention. Plenary guardianships, which are the most restrictive, are the general rule in Hungary and upon initiation of same, the alleged incapacitated person automatically loses the right to marry, the right to vote and to work. In addition, the individual loses his property rights and his procedural rights. Of grave concern is that if the person is placed in hospital, he automatically loses his right to refuse treatment.

And in Hungary, a person under guardianship loses the right to lodge a complaint against the guardian without the guardian’s permission.

Bulgaria has also gotten into difficulty with its guardianship system, according to the Mental Disability Advocacy Center (MDAC). Bulgaria ratified the CRPD in 2012 but refused MDAC access to vital resources in order to document the status and welfare of those under guardianship. As in Hungary, most of those who have been placed under guardianship in Bulgaria (85%) are under the highly restrictive plenary guardianships.

In the case of Serbia, its Constitution provides protection from the sorts of abuses that guardianship is known to produce. This “paper” protection has not extended to those under guardianship, however. Contrary to international law, a person in Serbia may be detained solely for an incapacity evaluation. Once placed under guardianship, the individual may be put into an institution for the rest of his life, with no possibility of appeal, according to a report issued by MDAC in 2006, which asserts that “Guardianship in Serbia is partially regulated by laws which have not changed significantly since the Communist times.”

The United States, however, has a much longer and more firmly established history of civil rights protections. Its record of protecting its vulnerable elders and disabled is not consonant with its public persona as a beacon for human rights defense. An official UN report issued in 2010, at the first-ever United Nations Periodic Review of the Human Rights record of the United States, stated that the disabled were not enjoying full rights in the United States. In response to this concern, the United States declared it would ratify the CRPD. 

In 2012, the CRPD was brought to a vote in the US Congress and failed, the vote tally being six votes short of approval. Republicans, who largely voted against ratification, were overjoyed, calling this a victory for national sovereignty. 

In other words, the abuses will be allowed to continue, without the possibility of international oversight. What is termed “the probate exception” renders it legally impossible for those under guardianship in the United States (or their relatives) to appeal to the Supreme Court. Options for redress have been diligently shut down and the secret war against the vulnerable rages on, unabated.

Janet C. Phelan, investigative journalist and human rights defender that has traveled pretty extensively over the Asian region, exclusively for the online magazine “New Eastern Outlook”.

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