Probate corruption: what v. why

In a recent e-mail exchange with Tom from Ohio, the comment was made that the lack of oversight with regards to judges and lawyers is important.  It was also stated that duping DNR’s or those heavily medicated by having them sign legal documents while incapacitated or as a result of undue influence was already illegal.  The point was that law enforcement, judges and lawyers, the folks in charge of “the rules,” are selective in their enforcement of “the rules” and for so long as this culture exists, we will continue to see an increase in Involuntary Redistribution of Assets (IRA) cases. 

Tom replied as follows:

Since you seem to think this is already illegal, I’d like you to read the newspaper article at ttp://members.aol.com/tvfields/BudishPDArticle/Frameset01.htm that was submitted by an estate planning attorney (Budish) which I posted on the internet.  According to one report that I recently read, this same attorney has raised $500,000 for a campaign to become the next speaker of the Ohio’s House of Representatives (if his party takes control of the House later this year).

Be sure to read my annotations of the article.  Also understand that it took two editors of the newspaper in which it was printed to get this attorney to write the article.  I know this because I was the one who asked these editors at different times (one year apart) to ask this attorney to address the issue.  It took me seven years to get him to include this material in his newspaper
column, so it isn’t surprising that his article is so much less revealing than other published material which I present online.

I am continually amazed that people as knowledgeable and passionate as you are still believe that it is already illegal to dupe the DNR’s or those heavily medicated.  The fact is that most complaints of this kind are routinely and automatically dismissed by law enforcement as a civil matter rather than a criminal one — a case of civil fraud rather than criminal fraud.  Then, in the civil case, the courts are free to rule in the manner of Bevan, as reported by the Ohio Legislative Service Commission on page 6 of the report reproduced online at
http://members.aol.com/tvfields/OhioLSC2Memo/Frameset006.htm “In Bevan, the Court of Appeals for Delaware County held that “[t]o avoid a will on the ground of delusion of the testator the delusion must be an insane delusion and the will must be a product of it.”

The fact that the Ohio Legislative Service Commission revealed this much could account for the reluctance of officials here in Ohio to request and/or provide more opinions of its kind.

Tom has been an advocate working to change the system for many years.  While EoD truly respects his knowledge, tenacity and generally agrees with the positions he espouses, our view of the problem has a different bent:

Optimism is a wonderful thing and thank God people like you have it!  These are some of my thoughts on what’s legal, what’s not and most importantly — what laws accomplish in today’s world — and it’s not about protecting people.  While you look at lot at what is happening in these Involuntary Redistribution of Asset (IRA) cases, I come at it from more a standpoint of why.           

I believe that current laws are intentionally vague so as to offer the opportunity for interpretation.  This subjective action can then work to the advantage of IRA perpetrators who are regularly better versed than their targets when it comes to manipulating the law and our “judicial” system.  Without no moral or ethical constraints, their efforts become even easier. 

Laws come from the government.  In many instances, laws are not written, broken or not enforced by the government as a means of achieving specific purposes.  From today’s headlines, illegal immigration is a perfect example.  Often times, the way in which government approaches an issue (via having laws or not, enforcing them or not) is a calculated decision to provide cover for the actions of influential individual(s).  Government is not going to work hard to solve this elder abuse problem because, like with many other things, it is not to government’s advantage to do so.  The days of government being “by, of and for the people” are long gone.  Our government is a soft dictatorship controlled by a relatively limited group of people.  Some people have official power,
others have unofficial power or influence.  Still more are bureaucrats who for varying reasons find it appealing to work in the public sector.  And this isn’t to bash everyone who works in government.  I know some highly competent, well meaning government employees. 

Government, though, to a large part is an entity that protects itself.  Much of its power comes via the collection of our money and the creation of jobs.  It wants to continue the appearance of being responsive to the people yet is anything but.  Objective observation reveals this situation transcends party politics.  In today’s environment, it’s not Republicans or Democrats alone participating in this occupation of our government.  They are all involved and they support each other. 

Think about your efforts.  It sounds like you have tried to work from the federal level down to state and local levels.  It is not inadequacy of your efforts/ideas that causes success to not occur — it’s a system that benefits more from the problem’s continuation.  And I would never suggest that you haven’t come across dedicated folks who are truly sympathetic to this plight of ours.  In the big scheme, though, government decision-makers value “people in need” as better allies in maintaining a powerful bureaucracy opposed to self-sustaining individuals in charge of their own fate.   

That Mr. Budish didn’t address the real practicalities of the issue illustrates my point that self-interested parties in concert with government are largely the problem.  He is well aware of every substantive point you made.  Addressing such issues does not fit with his agenda.  As a lawyer, what is his end goal?  To help people?  I would contend that his purpose is to create a steady and healthy revenue stream from his law practice.  Lawyers help craft much legislation and of course they want it to be fuzzy so that they and their cohorts can argue either side as need be. 
It’s a good business strategy. 

I looked at Budish’s firm’s web site.  He’s what I call a “walker stalker.”  He does Medicaid planning.  What an atrocious act — coaching people on how to manipulate the system and hide their assets so that others (you and I) have to pay for nursing home care which they are capable of funding.  I would never expect this guy to be a straight shooter.  It’s no surprise that he would find a political office appealing! 

While every state has varying technical aspects of their law, a savvy prosecutor will find a way to pursue a case he deems worthy.  With all the violence and in-your-face ugliness of today’s world, these IRA cases are of less interest to oft times overwhelmed prosecutorial agencies.  That doesn’t mean the cases are unworthy, there are just a limited number of labor hours in a day as well as finite amounts of financial resources.  We had a fiduciary breach case recently prosecuted here in my hometown (http://www.temple-telegram.com/story/2008/01/31/46766)) but it was done only, I believe, because of a local highly prestigious hospital having been one of the beneficiaries denied resources.  The judge in the case was brother to the hospital’s legal counsel.  It appeared to be elitist organizations mutually assisting each other while the same case with an average citizen would likely have gone unaddressed.  This prosecution had nothing to do with the property rights of a citizen having been completely violated as well as total disregard being shown to her final wishes that were clearly communicated through a perfectly prepared legal instrument. 

Your frustration is shared, but there are multiple ways to attack the same problem.  I know you have such anguish over people on medication or DNR’s being taken advantage of — it’s the same thing.  Government will respond to entities that support government’s agenda.  That is the sad reality of what I see.  The average person really doesn’t count. 

Government will create meaningful laws and undertake serious prosecutions when it serves them.  You don’t like it, I don’t like it, but it suits the agendas of government and their selfishly motivated friends (like Mr. Budish before he was a government official).  Meanwhile cases relegated to civil courts also suit the agendas of government (by creating more jobs – courts employ a lot of people!) and their selfishly motivated friends (like Mr. Budish when he was an estate attorney who knows how to work the system for whichever side his client might come down on — and for a hefty fee thus aiding his goal of a good revenue stream).

One last thing, with all of this having been said, I would relate these comments back to my initial remark regarding the need for increased judicial and attorney oversight.  I think the corrupt culture surrounding our legal and governmental systems is strong and seriously entrenched.   Doing right instead of wrong no longer has the societal importance that it once did.  With that, I think a meaningful course of advocacy is to work for real standards of accountability and transparency related to judges, lawyers and any other court personnel associated with probate issues.  The threat of losing a coveted position, appointment or revenue stream might be the best deterrent for some of the abhorrent conduct we see associated with Involuntary Redistribution of Assets cases.  And if shame ever returns as a component of our public psyche, I’m not opposed to that as a tactic. 

Greed is the fundamental motivator.  Should we one day be successful in our efforts, these IRA practitioners will have to move on to a new set of targets.  At least we can hope that the next group of marks will be better suited to defend themselves unlike today’s group – the dead and disabled! 

It’s funny.  You see government as the solution, I see it as the problem.  That our focus and strategies are different is truly a positive thing.  For any real progress to occur, both our courses will have to achieve some success.  Let’s keep up the pressure!   

What do you think?  Is government the solution or problem with regard to Involuntary Redistribution of Assets (IRA) cases?  We’d like to hear from you.

Share
Updates
  • admin

    Yale law professor Fred Rodell explained in very simple terms the “why” back in 1939 when he wrote “The legal trade, in short, is nothing but a high-class racket. It is a racket far more lucrative and more powerful and hence more dangerous than any of those minor and much-publicized rackets … Furthermore, the lawyers – or at least 99 44/100 percent of them – are not even aware that they are indulging in a racket, and would be shocked at the very mention of the idea.” (ref. page 10 of the 1980 paperback edition of Rodell’s book Woe Unto You Lawyers).

    I can’t put it any more simply. However, I believe we have provided better examples than he did. And I believe it would be easy for us to provide many more examples if the racket didn’t oppose introducing enhancements to the court reporting system like that proposed at http://members.aol.com/tvfields/CrtRptSysReform.htm

    My regards,
    Tom Fields