How you can lose virtually all of your rights without a meaningful hearing

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Xan
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by Xan » Mon Oct 09, 2017 8:54 pm

I read that earlier. Absolutely terrifying. Well worth a read.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by eufo » Mon Oct 09, 2017 10:17 pm

The fact that this kind of stuff happens at all is just... depressing. Get it together, humans.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by Maddy » Mon Oct 09, 2017 10:33 pm

What's really frightening is that anybody can file a guardianship petition, at least in this state. Quite often it's an independent, for-profit guardianship agency that does the filing--usually at the behest of a family member who's worried about their inheritance. In most cases, the guardianship agency's fees, as well as the fees of its attorney, are paid by the person who's the subject of the petition, so the whole thing quickly becomes a feeding frenzy--one which the petitioner may fight tooth and nail to preserve. Many tens of thousands of dollars can get blown through in a very short time, often with very little oversight by the court because the petitioner has already been appointed guardian ad litem and because the petitioner has already confiscated the person's checkbook and taken control of the bank accounts. The harder the person fights the petition, the costlier the process becomes. People routinely give up and consent to some kind of limited guardianship because the alternative, win or lose, will leave them penniless.

I have a friend whose law practice consists largely of guardianships. In most cases, he's retained by the court to represent the putative ward. It always shocks me when he talks about his work in a "ho hum" manner that suggests he's bored out of his mind and just going through the motions. In his view, there's not much difference between a person who's old and could use some help and one who should be forced into receiving it. I sincerely doubt he's ever raised an objection to anything. I always find myself thinking, "If that's advocacy, please shoot me now."

I concluded long ago that the best thing you can do to protect yourself from this fate is to not have much in the way of assets.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by bedraggled » Tue Oct 10, 2017 6:54 am

Can a person set up a trust, which, I think, removes ownership of assets from the control of the "target' and, therefore unavailable to the predator?

There are also limited liability corporations. And what about sending assets off-shore?

Concluding question: are there legal ways to avoid this mess?
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by Maddy » Tue Oct 10, 2017 8:21 am

bedraggled wrote:Can a person set up a trust, which, I think, removes ownership of assets from the control of the "target' and, therefore unavailable to the predator?

There are also limited liability corporations. And what about sending assets off-shore?

Concluding question: are there legal ways to avoid this mess?
Some states allow you to nominate a guardian in the event one is ever required. It would generally be done in a living will or health care directive. Another possibility would be a durable or "springing" power of attorney. (The term "durable" means that it survives a person's incompetence. The term "springing" means that it springs into effect when, and only when, the person becomes incompetent.) A trust or LLC might also do the trick--I've just never looked into it. Any of these things would slow the wolves down, for sure. However, all options seem to require that you have at least one other person to whom you would be willing to entrust the keys to the kingdom.

It's worth considering the various things that make older people an easy target. Large sums in easily liquidated assets, for sure. Children who need or who feel entitled to an inheritance (probably the Number One risk factor). Use of state and federal funds for health care. Idiosyncratic lifestyles and spending patterns. Someone such as myself, who (quite competently) plans to grow old in a one-room cabin with no running water would probably be well advised to create a health care directive that explains these idiosyncracies as longstanding, considered lifestyle choices and that documents their knowing acceptance of the risks that go along with them. Ditto for people whose estate plan involves spending down their assets and leaving little or nothing to Little Junior and his evil wife.
Last edited by Maddy on Tue Oct 10, 2017 11:07 am, edited 2 times in total.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by Libertarian666 » Tue Oct 10, 2017 9:15 am

According to what I've read, a POA won't do the job because the guardianship overturns it. That seems very wrong but I'm sure is based on some situations where the person with the POA has been exploiting the person who gave it to him.

Offshore assets should be harder to steal, assuming that the offshore institution wouldn't automatically obey the guardianship order.
I would imagine that putting everything into an LLC would do the job, because an LLC isn't a natural person who can be declared legally incompetent. A trust should also put some roadblocks in the way, because the prospective ward isn't the legal owner of the assets in the trust.

But I'm going to talk to my family lawyer about this ASAP to see what he says.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by Maddy » Tue Oct 10, 2017 10:58 am

Libertarian666 wrote:According to what I've read, a POA won't do the job because the guardianship overturns it.
That may technically be true, but as a practical matter a power of attorney will often prevent the petitioner from establishing the necessary factual predicate for an order of guardianship. Laws vary from state to state, but generally speaking the petitioner is going to have to show, among other things, that the person's disability is posing a substantial risk of harm to his health or finances. Even then, a person is, under constitutional case law, entitled to the "least restrictive alternative." So if a person has provided in advance for a POA, and if exercise of the POA can reasonably be expected to address the risk of harm, the existence of a POA should obviate the need for a guardianship and prevent the court from finding the facts necessary to allow an order of guardianship to issue.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by Maddy » Tue Oct 10, 2017 12:37 pm

Keep in mind that almost always there's a significant impairment that sets things in motion, and quite often a significant event. It might be a trip to the emergency room for a fall, a call to the fire department when a pot goes neglected on the stove, or a $5,000 wire to Nigeria for a chance to win a beachside condo in Malibu. And almost always there's some kind of corroboration of the impairment by a medical professional. Perhaps WiseOne could chime in on this.

I found this article a little deceptive because it downplayed the whole impairment issue, making the process appear way more random and arbitrary than it really is. No doubt the guardianship system is abused and older people are sometimes unreasonably victimized by it, but it's worth keeping things in perspective.

Again, the most significant risk factor people face, in my view, is the testimony of their own adult children and their spouses, whose own interests and objectives may be quite different than those of their aging parents. The usual presumption is that a family member has the person's own best interests at heart, but I've seen plenty to convince me that this assumption is frequently wrong.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by eufo » Tue Oct 10, 2017 5:23 pm

Libertarian666 wrote:But I'm going to talk to my family lawyer about this ASAP to see what he says.
I'm sure it goes without saying, but we'd love to hear what he has to say about this.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by WiseOne » Tue Oct 10, 2017 5:49 pm

Scary article!!!

My first reaction: 1) stay away from Las Vegas and other retiree hot spots, and 2) stay away from general internists or GPs. Go to the appropriate specialist when you need one. In my experience, the main function of primary care doctors is to generate referrals and produce carbon dioxide.

My second reaction: my family have all made living wills naming each other as medical decision makers if we were to become incapacitated. And, I hold a DPOA for my mother (and formerly did for my father). Is that not enough protection against something like this?
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by Maddy » Tue Oct 10, 2017 7:07 pm

WiseOne wrote:My second reaction: my family have all made living wills naming each other as medical decision makers if we were to become incapacitated. And, I hold a DPOA for my mother (and formerly did for my father). Is that not enough protection against something like this?
It should be--for the reason I cited earlier: With a DPOA in place, it would be difficult to establish the necessary factual predicate for an order of guardianship. But you know how how much faith I have in the legal system these days; between cowboy judges and activist courts of appeal, going into court over anything is like spinning the wheel of fortune. I suspect that if Harry Browne were here today, he'd advocate taking the necessary precautions, which would probably include a one-way ticket to Rio buried somewhere in the back yard.

WiseOne, a few months back in another thread you commented that many of your patients with epilepsy have sought treatment in other states due to mandatory reporting laws. I wondered then whether their fear related to the potential loss of a driver's license or something more draconian. Now I'm really curious.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by WiseOne » Tue Oct 10, 2017 8:16 pm

So a DPOA with a document handy that can be given to all medical providers (hospital, outpatient MDs etc) seems like it would work - about as well as anything else, anyway. Good to know.

Worry not about epileptics - that diagnosis cannot by itself get you declared incompetent. In real life, there is a very high bar for this. In New York, you need two physicians' written statements (and yes, I've been one of the required opinions on occasion), and that's only step 1.

Did anyone else wonder if this report is really true as written? As I was reading it, I was increasingly amazed that everyone involved wasn't prosecuted to the hilt, stripped of professional licenses etc. Medical malpractice with unsupported dementia diagnoses and declarations of incompetence that don't follow required protocols, multiple instances of grand larceny, misuse of federal Medicare funds etc...I mean what does it take to to get the law interested in you in Las Vegas? It also sounded like a very well established network of corruption was required for this to happen, which makes it fairly unique to Las Vegas. So maybe yes, bad situation and maybe the FBI should get involved if Las Vegas/Nevada is too incompetent to deal with it, but at least it's not happening nationwide/routinely as the article suggests.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by Libertarian666 » Tue Oct 10, 2017 9:08 pm

WiseOne wrote:So a DPOA with a document handy that can be given to all medical providers (hospital, outpatient MDs etc) seems like it would work - about as well as anything else, anyway. Good to know.

Worry not about epileptics - that diagnosis cannot by itself get you declared incompetent. In real life, there is a very high bar for this. In New York, you need two physicians' written statements (and yes, I've been one of the required opinions on occasion), and that's only step 1.

Did anyone else wonder if this report is really true as written? As I was reading it, I was increasingly amazed that everyone involved wasn't prosecuted to the hilt, stripped of professional licenses etc. Medical malpractice with unsupported dementia diagnoses and declarations of incompetence that don't follow required protocols, multiple instances of grand larceny, misuse of federal Medicare funds etc...I mean what does it take to to get the law interested in you in Las Vegas? It also sounded like a very well established network of corruption was required for this to happen, which makes it fairly unique to Las Vegas. So maybe yes, bad situation and maybe the FBI should get involved if Las Vegas/Nevada is too incompetent to deal with it, but at least it's not happening nationwide/routinely as the article suggests.
It's not just Las Vegas: http://aaapg.net/coalition-partners/.

And for the rest, professional misconduct is rampant in both law and medicine, and not just in Las Vegas either. The only surprise here is that it was eventually uncovered, and that was due not to the boards and other official bodies that are supposed to protect the public, but due to a citizen who finally got the press to expose it.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by Maddy » Thu Oct 12, 2017 7:59 am

WiseOne wrote:Worry not about epileptics - that diagnosis cannot by itself get you declared incompetent. In real life, there is a very high bar for this. In New York, you need two physicians' written statements (and yes, I've been one of the required opinions on occasion), and that's only step 1.
So what is the particular fear that propels these folks to seek treatment outside the state?
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by WiseOne » Fri Oct 13, 2017 7:43 am

Losing their driver's license.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by Maddy » Fri Oct 13, 2017 8:06 am

This Wall Street Journal article describes a situation in which a Washington State court nullified a preexisting DPOA and entered an order of guardianship. http://aaapg.net/wall-street-journal-ab ... or-adults/ So it does occasionally happen.

What appears to distinguish this case from the usual situation in which a DPOA would obviate the need for a guardianship is the fact that the DPOA was held by one of two brothers who were constantly at war with one another. I'm going to make an educated guess and surmise that these brothers were in and out of court with one petty squabble after another, and the judge simply got tired of it. I've seen the same thing happen, more often than you'd think, in probate cases where one of several infighting siblings is the named executor. At a certain point (usually corresponding to the point at which his lunch hour gets delayed), the judge has had enough of the bickering and appoints an independent, institutional PR (whose fees promptly drain the estate). The judge undoubtedly goes home with a clear conscience, muttering "It serves them all right."
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by WiseOne » Fri Oct 13, 2017 8:45 am

Yet another scary article. Geez!

I told my 81 year old mother about this. She's smart enough that if she ever gets a knock on the door like this, she'll simply refuse to cooperate. I told her to call me and/or her lawyer instead.

It seems one of the main purposes of this is to drain money from the elderly victims. All of us on this board are potential future victims since we are amassing the kind of savings that could attract such scams - but perhaps not enough to survive a $400K scourge. What do you all think is the best defense, should something like this happen to one of us? Sounds like a DPOA might help but isn't guaranteed to.
Staying put and refusing to hand over passwords, safe deposit box keys, and account numbers could at least delay matters until you can get a lawyer involved. Preferably one who knows you well already.

Also, minimize medications especially in the elderly where side effects are magnified, unless benefits are clear. I personally would refuse all preventative medications after age 75 (and frankly I wouldn't even take them now). A lot of the cognitive impairment you see in the elderly is medication-induced - not sure how much as it's not tracked, but I would guess that it's responsible for a significant chunk of dementia diagnoses. And where dementia is present, medications can exacerbate symptoms significantly. Apart from the usual suspects of pain meds and anti-depressants/anti-psychotics/sleep aids, big culprits are proton pump inhibitors, meds given to improve bladder control, BP lowering meds, and some meds for cardiac arrhythmias most notably beta blockers.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by Maddy » Fri Oct 13, 2017 10:11 am

WiseOne wrote: What do you all think is the best defense, should something like this happen to one of us?
I'm counting on WiseOne to provide me a note saying I'm compos mentis. :)
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by Maddy » Fri Oct 13, 2017 10:29 am

One important defensive strategy is to stay the heck out of the social service system.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by WiseOne » Sat Oct 14, 2017 8:54 am

Maddy wrote:
WiseOne wrote: What do you all think is the best defense, should something like this happen to one of us?
I'm counting on WiseOne to provide me a note saying I'm compos mentis. :)
Will happily do so for anyone posting on this board who is unlucky enough to get that knock on the door.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by bedraggled » Sat Oct 14, 2017 9:12 am

WiseOne,

You may have an opportunity to provide service for a fee.

We members could obtain a letter from you that avers to our mental competence. With your qualifications, the cost would not be an issue.

This might be worth kicking around. The life of this thread could be extended!

Members, 65 and over, should find this useful. (N. B., I am not yet 65, still a youngster).
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by Libertarian666 » Sat Oct 14, 2017 7:54 pm

WiseOne wrote:
Maddy wrote:
WiseOne wrote: What do you all think is the best defense, should something like this happen to one of us?
I'm counting on WiseOne to provide me a note saying I'm compos mentis. :)
Will happily do so for anyone posting on this board who is unlucky enough to get that knock on the door.
Thanks for that offer.

If I find myself in this situation, I'm going to say "I'm not letting you in. Go away and come back if you get a warrant." Then I will call my lawyer.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by Maddy » Sat Oct 14, 2017 8:56 pm

Libertarian666 wrote:If I find myself in this situation, I'm going to say "I'm not letting you in. Go away and come back if you get a warrant." Then I will call my lawyer.
Well, the crazy thing is that in this kind of situation a warrant probably would not be required. I've never looked into it. But when you think about the analogous situation involving people who are alleged to be a danger to themselves by reason of mental illness, it's clear that the protection of the Fourth Amendment applies only very loosely, and quite often only after the accused person has been involuntarily detained for evaluation and treatment for a number of days.

The hazy, ephemeral thing called the "parens patriae power" (the power of the state to help those who cannot help themselves) follows its own set of rules.
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Re: How you can lose virtually all of your rights without a meaningful hearing

Post by Libertarian666 » Sat Oct 14, 2017 10:42 pm

Maddy wrote:
Libertarian666 wrote:If I find myself in this situation, I'm going to say "I'm not letting you in. Go away and come back if you get a warrant." Then I will call my lawyer.
Well, the crazy thing is that in this kind of situation a warrant probably would not be required. I've never looked into it. But when you think about the analogous situation involving people who are alleged to be a danger to themselves by reason of mental illness, it's clear that the protection of the Fourth Amendment applies only very loosely, and quite often only after the accused person has been involuntarily detained for evaluation and treatment for a number of days.

The hazy, ephemeral thing called the "parens patriae power" (the power of the state to help those who cannot help themselves) follows its own set of rules.
If they say "We don't need a warrant", then I will say "I'm still not letting you in."

Then I will call my lawyer and get him to stop it.

He knows EVERYONE around here.
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