Group advocates against Texas HB 1438 guardianship bill

Americans Against Abusive Probate Guardianship
Phone 855 913 5337
Fax 305 503 5930
kelley@aaapg.net
PO Box 800511
Aventura FL 33180

Press Release

AAAPG Coalition opposes Texas HB 1438

National Coalition to lobby Texas Legislature

Austin Texas, May 11, 2015:

Americans Against Abusive Probate Guardianship, a Florida-based 501(c)(3) organization dedicated to combating abuses in probate guardianship throughout the country, has teamed up with coalition members opposing guardianship abuse to lobby the Texas legislature to defeat House Bill1438, The group believes that this Bill endangers innocent elderly Texans with unreasonable and unnecessary measures which would confiscate their assets and take over their lives as allegedly incapacitated persons  even before any due process guaranteed by the United States Constitution.
AAAPG has provided a thorough analysis of the bill attached to this message.

·        For further information contact AAAPG AVP Kelley Smoot Garrett at kelley@aaapg.net or 855 913  5337

 

Educate – Advocate – Legislate

Americans Against Abusive Probate Guardianship
PO Box 800511
Aventura, Florida 33280
(855) 91 ELDER
EndXploitation@aaapg.net

May 11, 2015

The Honorable John Smithee
Chairperson, House Committee on Judiciary & Civil Jurisprudence
P.O. Box 2910
Austin, TX 78768
The Honorable Joan Huffman
Chairperson, Texas Senate State Affairs Committee
P.O. Box 12068
Capitol Station
Austin, Texas 78711

Greetings:

Please allow me to introduce myself. My name is Dr. Sam Sugar and I am the founder of Americans Against Abusive Probate Guardianship (AAAPG) in Florida with coalition members in Austin, San Antonio and Houston, Texas.

We are a 501(c)(3) composed of and advocating for families who have suffered abuses in for profit probate guardianship around the country. Our efforts have recently resulted in the passage of legislation which dramatically reforms many aspects of probate guardianship in the State of Florida.

It has come to our attention that the Texas legislature is considering HB 1438 captioned “Relating to guardianships and other matters related to incapacitated persons.” This bill would modify and exacerbate existing statutes in Texas probate guardianship. We have grave concerns.

HB 1438

Author: Rep Senfronia Thompson, Member of controlling committee Judiciary and Civil Jurisprudence.

ANALYSIS

Our general analysis on the state of Probate Courts across Texas’ 254 counties shows that one consistent aspect of systemic financial exploitation of innocent elders by the probate courts is the creation of Management Trusts with each Guardianship case that is simply filed. These statutorily-created trusts are created before the Alleged Incapacitated Person has been given any due process guaranteed him in the Texas Constitution.

As a reminder, Sec 15-a of the Texas State Constitution, Article 1 Bill of Rights reads, in part:

No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony. The Legislature may enact all laws necessary to provide for the trial, adjudication of insanity and commitment of persons of unsound mind and to provide for a method of appeal from judgments rendered in such cases.

Looking at the most troubling sections of HB 1438:

SECTION 7. Subchapter D, Chapter 1101, Estates Code, would be amended by adding Section 1101.156 to read as follows:

Sec. 1101.156. REQUIRED DEPOSIT OF ESTATE ASSETS.
(a) Before an order appointing a guardian is entered, or in such an order, a court may require the deposit of cash, securities, or other assets of a proposed ward or ward in a financial institution described by Section 1105.155(b) for safekeeping.
(b) The amount of the bond required to be given by the guardian under Section 1105.101 shall be reduced in proportion to the amount of the cash or the value of the securities or other assets deposited under this section.

Also SECTION 8. Section 1102.005, Estates Code, would be amended to read as follows:

Sec. 1102.005. COMPENSATION OF GUARDIAN AD LITEM.
(a) Regardless of whether a guardianship is created for a proposed ward, a [A] court that appoints a guardian ad litem under Section 1102.001 may authorize compensation of the guardian ad litem from available funds of:

(1) the proposed ward’s estate; or

(2) the management trust, if a management trust has been created for the benefit of the proposed ward under Chapter 1301[, regardless of whether a guardianship is created for the proposed ward].

This proposed law would clearly violate the Texas Constitution because it allows probate court judges to confiscate private property before due process–as guaranteed every Texas resident by their Constitution– has even been allowed to occur. No law simply can allow the confiscation of a person’s cash and assets before a hearing has occurred and still be considered constitutional.

Should this bill pass, there would be no means of appeal available. Once a probate court judge confiscates & liquidates all assets of a suspected Alleged Incapacitated Person, there are no provisions in HB 1438 for a reasonable Constitutional means of appeal! Even worse, absent findings of incapacity the money would apparently be simply forfeited by the Ward – without his consent – because HB 1438 makes it legal to charge the Guardian Ad Litem’s legal costs back to the Alleged Incapacitated Person, even before any judgment or due process has occurred. This is clearly unconstitutional.

Our analysis of HB 1438 shows that this bill threatens the wellbeing and safety of innocent vulnerable Texans, and indeed appears to be a ultra vires violation of Sec. 15-aof the Texas State Constitution concerning Commitment of Persons of Unsound Mind. This is a bad bill.

HB 1438 allows the confiscation by the State through its probate court judges of an innocent individual’s personal private assets before any attempt at due process is even commenced – a position that is impossible to legally justify. Absent hearings, collection of evidence, and all other facets of due process how can the Texas Legislature propose to confiscate legitimate and privately held assets of one who has not been judged incapacitated? Why would any statute treat an innocent individual worse than a convicted criminal, and violate its own constitution in the process?

CONCLUSIONS

This bill and the long history of actions in Texas by probate court judges over the years makes it easy to understand why critics of the current probate guardianship system in Texas see dramatic conflicts of interests between Texas’ probate judges and the wards they are supposed to protect. HB 1438 would encourage the illegitimate creation of guardianships for the benefit of the court and the guardianship stakeholders, not for the benefit of the proposed ward – an innocent individual whose only ‘crime’ is to be an Alleged Incapacitated Person.

We have also learned that in certain large Texas counties, probate courts appear to confiscate 5% of an allegedly incapacitated person’s estate upon the creation of the guardianship and funding of its management trust and yet another 2% is skimmed off the top of all assets liquidated into such trusts by Guardian attorneys ad litem. Should 1438 become law, innocent elders would suffer irreparable harm to their estates by virtue of these facts compounded by the statute as soon as a guardianship is even contemplated.

Seeing this information it is very easy to understand why critics of the system see dramatic conflicts of interests which mitigate toward the illegitimate creation of guardianships for the benefit of the court and the guardianship stakeholders, but the innocent individual whose life is about to be controlled by a total stranger whose only motivation is profit, is merely an afterthought.

We request that a comprehensive audit of all funds confiscated by the court from guardianships be immediately undertaken to assess the impact of this process on Texas Wards and the need for more reform legislation.

Members of our coalition groups in Texas have tried in vain to stop this march toward illegitimate seizure of private property in the rush to guardianship in Texas, both in this session, and in the previous biennium. Our organization supports their efforts and will appear on behalf of the innocent citizens of Texas in future legislative hearings. We respectfully ask to know why the legislature is considering such draconian measures which amount to clearly unconstitutional and illegal search and seizure.

Our national coalition representatives will immediately begin their requests for face-to-face appointments with the legislature’s members at the State Capitol. We hope that the Committee on Judiciary and Civil Jurisprudence will reel this bill back in and see it not move forward in this session because enactment of HB 1438 would create what we find to be an excessively punitive and unconstitutional series of actions by state of Texas against its elderly population. We hope that our Texas-based AAAPG representative will be welcomed and be given an opportunity to present our serious concerns with this proposed legislation.

Respectfully submitted

Sam J Sugar MD
Founder, AAAPG www.aaapg.net endxploitation@aaapg,net

Texas AAAPG Contact:

Kelley Smoot Garret kelley@aaapg.net
512 653 3879

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