Wednesday, August 27, 2008

Letter to AP, Miami Herald ,Channel 10 News

by Alicia Rook

We are writing not only for ourselves but for a number of other people. We would like to have a meeting with you to discuss the following serious concerns:

Did you know that anyone can call Elder Affairs, and this in turn could set in motion a chain of events which could land an elder person (or Britney Spears) in front of a Probate/Guardianship judge who can have this person declared incompetent? This judge has the power to take all of the elder persons’ constitutional rights away, name a court appointed corporate guardian, their attorneys, caregiver personnel, which could cost everything he or she owns [bank accounts, financial portfolio, social security checks, IRA’s, 401K’s plus ALL real property (home, furnishings, collectibles, cars) everything]!

Please read AARP article "Stolen Lives" by Barry Yeoman . This is an eye-opener. Among the many things stated is that this kind of elder abuse is rampant in the probate/guardian court system across the U.S. Of course it is very much “alive and well” right here in South Florida.

We know of a case of an M.D., the court declared his Mother incompetent, later this Doctor had her examined by a Court appointed Psychiatrist as well as a private one, and both found her to be competent. Nevertheless, the judge would not give her rights back, (it appears Ted Bundy had more rights in criminal court [ACLU and press where are you?] in some cases judges do not consider critical data which is paramount to the case). In the meantime, this lady has had to pay over $600,000 in guardians, lawyers, personnel, etc. that are "caring" for her.... Sure they are. Not only that, but the attorney for his Mother was the attorney for the court appointed guardian at the same time!

There are other sad cases like the Tristani case, the El Nuevo Herald Jan. 26 and Jan. 27 of 2004, Haye’s case, Gertler case, Torrent case, and many others. There are cases in Broward County, Palm Beach county, Monroe county. In fact last Sunday, April 18th, on the front page of the Key West paper, please see www.kwtn-blue.com/2008/04/page-one-comm-2.html there is an outrageous case, there are similar cases in our ever growing group across Florida. We even get emails from people withholding their names for fear of reprisals from certain judges.

There is a clear cut pattern of behavior on the part of attorneys, guardians, judges, which points to a great deal of financial abuse and of course physical and emotional as well. Please read Mary Joy Quinn –Guardianships of Adults [page 42 where it states: That within the next few years, and it’s beginning to take place now, an enormous transfer of wealth, estimated at “eleven trillion” dollars between the older generation and their Baby Boomer children is taking place].

Looking at the many websites like elderabusehelp.org, guardianabuse.blogspot.com to name a couple as well as many others, reading articles, speaking with witnesses, our own experience it is our perception that the Probate/Guardianship Division of the Court System has to be looked at "very closely", new legislation reform is needed immediately, people are suffering and worse.

A real estate agent is required by the State to give prospects written disclosures. Similar written disclosures of information or guidelines should be given by the Probate Courts to lay people who apply for guardianship of another person. As the AARP articles says, seniors have become victims of the legal process.

The shape of things to come for baby boomers(?), (the generation which has done more for Civil Rights than any other, etc.) Not very good if you have any assets.

Waiting to hear from you, we thank you for your time and consideration on this grave and shameful problem.

Brian and Alicia Rook 305.933-9594

Citizens Against Elder Abuse in the Probate / Guardianship Courts

1 comment:

Wiredbrain said...

http://www.wiredbrain.net/
Interference with an expectancy is an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator’s interest rather than the disappointed beneficiary’s expectations. The fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator. The beneficiary is not directly defrauded or unduly influenced; the testator is. Thus, the common law court has created this cause of action not primarily to protect the beneficiary’s inchoate rights, but to protect the deceased testator’s former right to dispose of property freely and without improper interference. In a sense, the beneficiary’s action is derivative of the testator’s rights. The facts presented are uncontested over the last four years:

Power of attorney abuse (Brother Esq. also the personal representative screws his Brother – He obtained a durable power of attorney from his dying mother and used it to defraud his mother, the ethics of legal practice, and embezzle millions - This is exactly what happened)

Abuse of a power of attorney is an all too common phenomenon in Florida, and nationally. This article in the Wall Street Journal highlights what I perceive as a growing area of concern. All too often “trusted” friends or family members use the power of attorney for their own benefit.

http://online.wsj.com/public/article/SB119621444421006085.html

At the recent Fiduciary Litigation seminar in Dallas, James Woo spoke of the increase he is seeing in those with power of attorney facilitating the creation of a joint account of survivorship in either a bank or brokerage account. This often occurs in the context of a child excluding those assets from the estate the parent meant to pass on to all the children. The parent believes the children are being treated equally because that is what he provided in his will. But upon his death the other children learn that the probate estate is surprisingly small, and that their sibling with power of attorney gets all the bank and brokerage accounts.

This scenario calls for aggressive action and the consultation of a litigation attorney. The holder of a power of attorney owes a fiduciary duty to the principal. He has the burden to prove the account designation changes were fair. The other siblings can assert claims of undue influence, lack of capacity and tortious interference with inheritance