2020 Center for Estate Administration Reform Fraudulent Guardianships and Probate Abuse Prevention

Center for Estate Administration Reform – Fraudulent Guardianships and Probate Abuse Prevention

CEAR counsels victims and their legitimate protectors, educates the public, and advocates for reforms to best protect vulnerable adults, and their estates, in probate and adult guardianship adjudication.

Guardianship originated as an altruistic act, managed by local courts, to protect vulnerable adults. Sadly it has morphed into a risky and expensive reality over the last 100 years. An adult guardianship order removes a person’s rights, decision making ability, and their estate granting them to a third party. It also invites the court, and its many allies, to control the destiny of the vulnerable. The action is legally on par with ordering a civil death sentence to the alleged incapacitated person as they, and their estate, become the property of the system.

Fraudulent guardianships describe the use of guardianship as a weapon to exploit the vulnerable. Predatory parties fraudulently petition the court to gain control of a person and their estate in denial of federal and state statutes, estate documents, and often the emotional objections of the quite articulate vulnerable adult and their loving family. Trustees of family trusts are often targeted by the process. There is often no redress in an exploitive guardianship, and those who sponsor them know it.

Court allies are paid from the estates of those they conscript into guardianship creating an egregious conflict of interest. Predatory attorneys and guardians who embrace the practice leverage the dysfunction of these courts to extort estate assets under the color of law. CEAR has coined the term “estate trafficking” to define the practice. By involving the courts, predatory parties are able to deny legitimate estate documents and all objections. The practice is facilitated by the incompetence, negligence, or criminal complicity of the judicial officer and court management, thus reducing the system intended to protect the vulnerable and their heirs into one that emotionally and financially exploits them.

All states require an initial inventory and annual accountings to insure conservation of the estate, but court oversight is often woefully lacking. Courts often leave accountability to the “honor system”. Evidence and due process are often ignored by these courts as predatory litigators, focused solely on gaining control of an estate, know once the temporary order for guardianship/conservatorship is signed the have little to fear on accountability.

Law enforcement and adult protective services routinely don’t engage in criminal complaints against guardians as they view it as a “civil” matter and appeals to higher courts are most often denied or remanded back to the sponsoring judge. The victims are locked into litigation until their funds are depleted or their legitimate protectors surrender. In most cases the victims have no legitimate redress even if the judge is criminally complicit.

The National Center for State Courts reported that 1.3 million American adults were under guardianship in 2015 and 176,000 were added to the rolls. This is only an estimate as only Idaho and Minnesota require their courts keep an annual census of those conscripted into guardianship. Estimates by the Federal Reserve and Metropolitan Life reported in 2015 that the average 75 year old has a net worth of $300,000. Using these estimates substantiates that over $300 billion in assets are controlled by guardians and approximately $50 billion in new assets are acquired each year nationwide. The numbers are growing 10-15% per annum due to the aging baby boomer generation and the growth in dementia related diseases.

“Isolate the victim, defame legitimate protectors and heirs, and liquidate the estate” describes the more than 2,500 trust and guardianship fraud cases CEAR has counseled since 2014. Estate trafficking is the crime of the 21st century as $1.5 trillion/year passes generationally in the U.S. and the predatory legal community is best positioned to intercept those funds by targeting the vulnerable. CEAR estimates there are more than 10,000 new victims in the US each year as the practice grows nearly unchecked.

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