DISAPPOINTMENT

As an attorney, I am sometimes disappointed in my colleagues and our legal system in general. Over the past 19 years in which I have been an attorney and the past 40 in which I have worked to advocate for vulnerable people in the medical system, I have seen horrific abuses that are becoming more prevalent today.

I am speaking of abuse in the probate system, particularly in guardianships and conservatorships, an area I call Living Probate. When thinking of probate, most people think of Death Probate – the administration of estates of decedents. But an even larger area of probate court involves guardianships and conservatorships, a legal method of taking over people’s lives, restricting their freedom, and diverting their property to attorneys and fiduciaries. Sometimes, there is a legitimate need to protect vulnerable people. But I have seen too many cases of so-called professionals, and sometimes relatives, abusing the system for their own personal gain. And I have seen the court act as a rubber stamp, essentially providing a license to steal to lawyers and professional fiduciaries who often work with other government agencies to deprive people of their rights and property.

This issue receives virtually no publicity because the victims are carefully chosen and often have no one to advocate for them. Even though the court usually appoints an attorney, those attorneys are discouraged from vigorously defending their clients. For example, in Arizona, an individual in a guardianship proceeding has a right to trial by jury. Yet, I cannot find that one has ever been done. And there is no mechanism to inform the victims of their rights as there is in criminal prosecution. I, personally, have had to deal with pressure from the court, including veiled threats of sanctions because the court suggested they might see my efforts to protect my clients as a waste of their money. Apparently, it is better to just let someone else have their money, according to some judges, and a tight circle of attorneys and licensed fiduciaries who seem to control the probate court.

Currently, the Arizona State Legislature is looking at this issue. There are two bills under consideration that won’t fix the problem but will go some distance in raising awareness and incorporating some protections. Please take a look at SB1291. This law would require judges and attorneys to inform people facing guardianship or conservatorship of their rights. It would also make it a bit more difficult to strip people of their property rights and give people more of a say in who can be appointed to help them.