The Death of Democracy in the Probate “Court”

The United States is a democracy. Right?

 

I never questioned that until 2012. Someone that I loved very dearly was subjected to severe abuse by the Probate Court. I was also subjected to abuse. I survived. Gretchen did not.

 

The lasting damage done to me by this experience was the destruction of my belief that people do not have to fear abuse by government in the United States.

 

It was not until 2016 that I finally realized the problem. The Probate Court is not a democratic institution. It is a dictatorship. It violates all the principles on which this country was founded.

 

The thing I find most frightening is that only a tiny fraction of the general population realizes the truth. I think the reason is that we are all blinded by our belief that the institutions of our government function in accordance with the principles of democracy.

 

In fact, anyone who has been involved in a guardianship case has all the information needed to know that the Probate Court is not a democratic institution. It took me 4 years of study and research before I finally saw the truth that was sitting in plain sight.

 

This is not to say that all the institutions of government violate the principles of democracy. However, the Probate Court is a glaring exception.

 

Somehow the judges and lawyers of the Probate Court have managed to eliminate all the protections of democracy designed to prevent abuse of power by government. The result is that the Probate Court has the ability to commit crimes with impunity.

 

The reality is that no one is safe from abuse by the Probate Court. This is a very strong statement. However, this statement is supported by extensive factual evidence. This evidence has been accumulated primarily by organizations outside the government.

 

Until recently the government has passively or actively swept the problem under the rug. The Probate Court has the ability to prevent the evidence of abuse from becoming public. Other branches of government have also cooperated in concealing the evidence.

 

Since this happened in 2012 I have filed complaints with all three branches of government with no effect. All my complaints have ended up in the hands of a lawyer who did nothing. One of the other parties in the case has also filed complaints with no effect.

 

The proof that the Probate Court is a dictatorship is lying in plain sight. It is a matter of seeing the obvious. In my case that took 4 years.

 

The foundations of democracy are the following:

 

  1. No one has absolute power. Power is distributed between three branches of government to provide checks and balances.

 

  1. Everyone is responsible for their actions. No one has immunity.

 

The Probate Court violates both of these fundamental principles of democracy in multiple ways. In particular, guardianship is riddled with absolute power and conflict of interest.

 

The judge has sole control of guardianship:

 

  1. The judge appoints the attorney for the incapacitated person.
  2. The judge appoints the guardian/conservator who manages the person’s affairs.
  3. The judge appoints the GAL who investigates the facts of the case.
  4. The judge decides the case without the right to a jury trial.
  5. The judge is responsible for accountability of the GAL and guardian/conservator.
  6. The judge gives immunity to the GAL and the guardian/conservator as agents of the court.
  7. Judges have judicial immunity and extend that immunity to those they appoint.

 

The Constitution does not give anyone immunity. The court has given itself immunity.

 

The combination of absolute power and immunity has set up a system of legalized crime where GALs and guardians can commit crimes with impunity.

 

Marty Oakley who runs an internet talk radio show has been pointing out for a long time that the Probate “Court” is not a court. It is an administrative tribunal whose authority is derived from the Executive Branch, not the Judicial Branch.

 

Because it is not a court it is free to set its own rules as to how it operates. A person who goes before the Probate Court has no constitutional rights. The law is whatever the judge says it is. Responsibility for protecting a person’s constitutional rights rests with a court of law. The Probate Court is not a court of law.

 

The problem is that the Probate Court pretends to be a court and has usurped powers that can only be exercised by a court of law with due process. The Probate Court exercises the powers of both the Executive and Judicial branches of government. This is unconstitutional and violates separation of powers.

 

In December, 2016 I met with my state senator William Brownsberger to discuss my complaints with the way guardianship is managed by the Probate “Court”.

 

I pointed out that it violates separation of powers for a judge to be responsible for both appointment and accountability of guardians.

 

His response was “Please trust me when I say:  Your argument that the guardianship system is unconstitutional is not correct legally, however powerful it may seem theoretically.”

 

I said I was not willing to trust him. I asked him to prove it.

 

He said “You are asking a little too much of me.”

 

He elaborated by saying “Separation of powers is not just a philosophical idea, it is a technical legal construct.”

 

The issue is not whether the present system is legal. The extermination of the Jews was legal under German law. Slavery was legal in the United States.

 

The issue is whether guardianship is consistent with basic principles of law, democracy, civil rights, human rights, and the constitution. In my opinion, the present system of guardianship violates all these basic principles. It is a stain on our democracy as bad or worse than slavery. It is a danger to everyone whether or not they realize it.

 

I was taken totally by surprise by the way the Probate Court handled my guardianship case. I would not have trusted the Probate Court if I knew then what I know now. The problem is that there is no appropriate system for handling guardianship.

 

The way to stop this abuse is to take away the secrecy that protects those who are committing these crimes. That can only be done by the free press.

 

I wrote an article in September, 2017 in Boston Broadside, Issue # 42 (Vol.4,No 9) describing what happened in my guardianship case. You can read it and decide for yourself whether this is the way you want guardianship to be handled.

 

The guardianship case is Docket Numbers 11P 2483, 11P 3682, 12R0085. The judge was Patricia Gorman. The professional guardian was Regina Bragdon. The GAL was Fern Frolin. My first attorney was Anthony Boczenowski. My second attorney was William Brisk. My first attorney developed cancer and had to withdraw from the case. My first attorney was a very honest person. In my opinion, he was the only professional involved in the case who did anything right.

 

Response from Will

Thanks, David. I know you have been through a lot.

You are correct in saying that the probate court is not democratic. The judicial branch is not democratic. Judges always have to make tough decisions and in the probate court, their decisions are especially tough.

The judiciary branch is part of a democratic system of government in three respects: (a) it is appointed by the duly elected Governor; (b) it is independent of the Governor once appointed; (c) it makes decisions based on laws, some of which are democratically enacted.

For litigants unsatisfied with the outcome in probate court, there is an appeals process within the judicial system to higher courts.

The system does depend on access to legal representation to make it work and judges and lawyers are all human and imperfect, but I don’t agree with your philosophical challenge to the structure of the system.

6 replies on “The Death of Democracy in the Probate “Court””

  1. Dear Senator Brownsberger,

    What you fail to recognize is the discretion afforded equity court judicial officers, where all adult guardianship and probate matters are heard. The appeal process normally remands the case back to the original judge to again deal with as they see fit. Redress means very expensive and emotional litigation at the expense of the victimized party. When judges refuse to admit their mistakes, due to arrogance, negligence, or complicity there is no redress for the victimized.

    How is the Massachusetts executive and legislative branch addressing this reality? All court insiders know it happens each week across the state when wealthy vulnerable adults are involuntarily brought into a probate courtroom.

  2. Dear Senator Brownsberger,

    In your response above you said:

    “The judiciary branch is part of a democratic system of government in three respects: (a) it is appointed by the duly elected Governor….”

    As has been reported in the press, Attorney Marvin Siegel, a Boxford lawyer, has been held prisoner in his house for 5 years while court appointed guardians have been draining his assets at a rate of $1 million per year.

    Two of the lawyers involved in this case are:

    1. Thomas Barbar, Esq. who represents the guardian Brian T. Cuffe, Esq., and conservator James E. Feld, Esq.
    2. Marsha Kazarosian, Esq. who is the counsel of record for Marvin Siegel.

    In February, 2016, Governor Baker appointed Marsha Kazarosian to the nominating committee for the Massachusetts Supreme Judicial Court.

    In August of 2017 Governor Baker nominated Thomas Barbar, Esq. to sit as a Probate & Family Court judge in Middlesex County. The nomination was approved by the Governor’s Council.

    It appears the governor is putting the fox in charge of the chicken coop.

  3. The statement that probate courts are courts of law is a misrepresentation. The reason probate courts are so prone to abuse and corruption is that they function is equity courts without juries, without rules of procedure and without due process. There are thousands of cases throughout the country where probate courts correctly ruin the lives of a tire families well stealing their assets into the pockets of malevolent court inside or predators. It is impossible to challenge that reality and anyone who attempts to dismiss the corruption in those courts by resorting to the downstream that we are all imperfect only encourages the predators.

  4. When you can explain how the living, breathing human being is subjected to “probate”…a system that is activated supposedly only upon presentation of the death certificate and the intended distribution of the estate, I’ll buy your argument as legitimate.

    as you know, there is a distinct difference between what is lawful and what is legal.

    Quote:
    “(c) it makes decisions based on laws, some of which are democratically enacted.” …..

    and many of which are clear violations of both state and federal constitutions.

    Probate today in any state, represents the greatest transfer of real wealth from targeted individuals to predators who game the system.

    As for that appeals system…lots of luck there. Until you can end the death grip the BAR Associations have on what used to be our court system,and, what is highly regarded as a corrupted judicial system across the country…there is no chance this will be rectified.

    What happens in probate is state sanctioned human trafficking of the elderly and disabled. We are bought, sold and traded as chattel. And there are so many thousands of documented cases of this trafficking that it can no longer be denied or marginalized.

    And please tell me why “legal representation” is necessary to make it work. That is a very telling statement.

  5. I want to add that “probate” courts are tribunals, and not courts of law. As a tribunal, it does not have to follow the rules of evidence as would be required in an actual constitutional court, but instead relies on artificially constructed, codes, statues, regulations and rules, all constructed to void the Constitutions and any protections we have within those documents.

    Rosanna miller of Ohio recently discovered that probate is operating under the Universal Commercial Code (UCC) and is operated under the laws of international contracts. We are property under this system and treated as such.

    We have tribunal transcripts where the hearing examiner referred to as a judge has screamed at those attempting to demand their protections, that if they mention the Constitution one more time they will be jailed for contempt and that the law is what they say it is. they also make it abundantly clear that in those tribunals we have no rights~!

    the time for marginalizing or trying to soften this issue is long gone. no longer can anyone in congress or our state legislatures claim they do not know what is happening or, that it must be an isolated situation or that somehow we just misunderstood something.

    I am also fed up with hearing how politicians tell constituents that they have really important issues to deal with and they dont have time for this.

    At any given moment, thousands of elderly individuals are snatched from their homes, hospitals and families. Taken most times by total strangers whose only interest is self enrichment by gaming the system. And if these people die as a consequence of the shock, abuse,neglect or death by Hospice…as long as the estate has been depleted…who cares? Apparently, no one in a position to do anything about it does.

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