The Estates Code is Unconstitutional

Candice
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Candice

President at Schwager Firm
Welcome to Schwager Law Firm from our Founder and Principal, Candice Leonard Schwager. Candice is an experienced litigation attorney with a wide array of experience, including Family Law, Probate, Guardianship, Civil Rights, Contractual disputes, personal injury, products liability, & school law, representing children with disabilities. The Founder & President of two Non-profits for special needs, the elderly and disabled, Candice's practice is a diverse combination of people from al walks of life. Candice's public interest work has been recognized by the Texas State Bar Pro Bono College 7 years in a row, with thousands of hours donated to low income Texans who would not otherwise have access to justice. A 1997 Cum Laude Honors Graduate of South Texas College of Law, Law Review Editor, Brief Writer for STCL's award winning National Moot Court Team, and Research/Writing Assistant to W. David East, Associate Dean, Candice believes in excellence and has been blessed with the opportunity be mentored by the best lawyers in the State of Texas for 2 decades.

Since 1997, Candice Schwager has been serving Texas with the single purpose of making a difference. Candice is currently offering a complimentary 30 minute consultation to those in need of legal representation. Call (832) 315 - 8489 or e-mail cls@schwagerfirm.com
Candice
Hello!

As the Senate decides whether to grant wards of the State of Texas due process rights–crumbs off of the master’s table–I sit disgusted that these men and women are our leaders, wondering how we managed to elect such reprobate “non-representing” representatives. I am also beside myself contemplating how grossly incompetent the lawyers must be to draft legislation so clearly illegal, it’s not worth the paper it is written on. Does anyone know the Constitution, Bill of Rights, or even the meaning of the word “inalienable?” Inalienable means non-transferrable, yet Judge Guy Herman, Chief ProbateJudge of Texas, will tell you that a disabled person’s “rights” are not removed, merely transferred to the guardian. 

S.B. 1882 is a bill relating to providing due process to wards in guardianship. S.B. 1881 a bill mandating that alternatives to guardianship be considered first, such as supported decision making. Despite the fact that both Bills demonstrate egregious violations of the 14th Amendment with respect to the elderly and disabled–in providing them less protection than other citizens–wards need these protections to convince the reprobate that they actually have some rights.

The entire Code reveals egregious violations of federal law by intentionally depriving citizens of privileges and immunities guaranteed by the United States Constitution, constituting felonies under 18 U.S.C. 241, 18 U.S.C. 242, treason, and official oppression, but Judges are nonetheless treating citizens like chattel–purportedly stripping them of inalienable rights “under Color of State Law.” 42 U.S.C. 1983.

Until the Estates Code is declared unconstitutional via a declaratory judgment action to be filed in Federal Court, advocates have little choice but to take the crumbs lawmakers offer. There are absolutely no protections for even proposed wards under the Estates Code and with each Bill, it’s getting worse. Lawmakers and activist judges who don’t respect the Constitution are finding new ways to exploit the elderly and disabled with limited liability or none.

To the Lawmakers whose consciences have not yet been seared with a hot iron, I implore you to end this insanity by repealing this void Estates Code and amending the Family Code to provide the same protections for the elderly and disabled as would be provided any citizen of the United States. This is treason to the Constitution and absolutely intolerable.

The Fourteenth Amendment to the United States Constitution provides:

Section 1. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Relying upon the simple idea that all people are created equal with certain inalienable rights, slavery was abolished, women’s rights flourished, and discrimination was made illegal under the Klu Klux Klan Act a/k/a The Civil Rights Act of 1984, the civil statute being 42 U.S.C. 1983. The Americans with Disabilities Act of 1990 grew from this to include the disabled and elderly as a suspect class that cannot be subject to discrimination, yet it is ignored. 42 U.S.C. 12101 et seq.

Intentionally depriving citizens of privileges and immunities guaranteed by the U.S. Constitution is criminal. 18 U.S.C. 241 and 242. This necessarily means that lawmakers are committing crimes against Texas citizens “under Color of State Law” when they draft void statutes that violate their rights. The ludicrous part is that everyone acts as if this is legal when it’s not. Guardianship as instituted in Texas is illegal, rendering most wards of the State “hostages.”

The Legislature is also considering a Bill, requiring judges to appoint attorney and guardian ad litems according to what is “fair” for the lawyers, as opposed to what is in the “best interest” of the proposed ward. The idea that lawmakers would even consider forcing Judges to “spin the wheel” or appoint according to the next name on a list of lawyers, as opposed to competence is offensive. What is this? Wheel of fortune? Or Pin the tail on the donkey?

The entire determination of whom to appoint as guardian ad litem or attorney ad litem for a disabled or elderly person should not be “whose turn it is.” Instead, it should be based upon the person’s needs and which appointee can best meet those needs. This is critical in determining whom to appoint as guardian ad litem because that person has the duty to decide what is in the elderly/disabled person’s “best interests.”

Whoever decided that lawyers had the capacity to determine what is in a disabled or elderly person’s best interest was sorely misguided in the first instance. I have seen the nightmare this arbitrary system of cronyism creates for the elderly and disabled in 100% of my cases because not once has the attorney appointed by the Judge understood the person’s disability. Without this basic understanding, it is ludicrous to give an attorney the responsibility of making Life-changing decisions for a stranger.

I have seen the failure to pick a competent GAL work catastrophically in most every case. The first involved a Board Certified Probate Lawyer who wrote the Guardianship Section of the Code. This woman also writes the exam for attorneys seeking Board Certification, but was incompetent to testify under Rule 702 regarding an autistic boy’s “best interests” because she knew nothing about autism even after 2.5 years of me spoon feeding it to her.

Without question, I am the most qualified special education / autism attorney in Harris County probate Courts after working 5 years, representing special needs children in schools under 25-year Texas Education Agency Hearing Officer, James Holtz. A pre-med major with an emphasis in psychology, my understanding of disabilities common to children and the elderly is extensive. Seeking to effectively communicate with the autistic children I represent, I’ve spent countless hours with families observing my clients–most of whom were non-verbal. Despite this work, it is incredibly challenging to be confident that an autistic child understands and is responding intentionally, as opposed to exhibiting echolalia, which is random phrases autistics repeat. The challenge of simply sustaining eye contact with a person on the spectrum typically leaves uncertainty as to their level of understanding.

I am an expert under Rule 702 with respect to special education and autism, but defer hands down to the parent because he or she simply knows their child, like a mother knows a baby. The same is true of any non-verbal child or adult. Families must learn to read them–as task that requires time and investment in the person’s life–far beyond what an ad litem can give.

The decision of what is in a person’s “best interest” can be life changing in guardianship and must involve consideration of what they want. Regardless of the level of impairment, guardianship is supposed to remove only those rights that are absolutely necessary for the ward’s protection. Guardianship should rarely, if ever, deprive a person of the right to self-determination, for to do so would violate the 14th Amendment to the U.S. Constitution.

The attorneys currently appointed to make these life changing decisions for non-verbal children and adults are incompetent to make the decision, regardless of Board Certification. This is because attorney ad litem and guardian ad litem certification requires a mere 3.5 hour course in which lawyers are taught nothing about disabilities. The end result is disastrous and not once have I witnessed any GAL make the right choice.

The solution is so simple if the REPTL Committee and Judge Herman would focus on the “person” guardianship was intended to protect instead of the money to be generated. The Family Code already has Constitutional protections built into the GAL appointment process, ensuring that qualified individuals are appointed to decide the “best interest” of children–with strict guidelines on qualifications to serve, duties and permissible fees. Under Rule 173, the term “Guardian Ad Litem” includes:

(A) a volunteer advocate appointed under Subchapter C;

(B) a professional, other than an attorney, who holds a relevant professional license and whose training relates to the determination of a child’s best interests;

(C) an adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child; or

(D) an attorney ad litem appointed to serve in the dual role.

The focus of the appointment is “child-centered”, not lawyer-centered. Rule 173 and Chapter 107 of the Family Code provide multiple layers of protection for children, including but not limited to the appointment of an attorney, amicus attorney, child advocate, and/or other individual deemed appropriate by the Court. The Court seeks individuals who are most qualified to decide “best interests.”

The elderly and disabled are not afforded any degree of protection by the Estates Code in violation of the 14th Amendment Equal Protection Clause. Section 1054.054 merely states:

Sec. 1054.054. DUTIES.

(a) A guardian ad litem is an officer of the court.

(b) A guardian ad litem shall protect the incapacitated person whose interests the guardian has been appointed to represent in a manner that will enable the court to determine the action that will be in that person’s best interests.

There is no standard included in this rule and most attorneys forget they are required by the Texas Rules of Professional Conduct to be competent. Per the Estates Code, Guardianship is to be handled just like “dead people’s estates.” The end result is the elderly and disabled are treated like chattel, purportedly stripped of all Constitutional rights because the concept of a “limited guardianship” is a fairy tale. This is illegal and renders lawmakers guilty of crimes against Texas citizens “under Color of State law.” 18 U.S.C. 241, 241.

You can bet if Senators and Representatives were being taken hostage and robbed of their life savings, laws would change. But like most things, the suffering of elderly and disabled victims is out of sight, out of mind. The politically elite profiting from the suffering of our elderly and disabled loved ones are unmoved by the cries of the people they represent. Judge Herman is “sick of hearing it.” At the same time, we are fed a line of bull with the absurd lie that guardianship protects.

A simple reading of the Estates Code reveals the purpose of guardianship–money. People have become property of the State to tax, place bonds on, and take their life savings to fleece the lawyers and politicians. Were this not true, you would not see Judges and lawyers bickering in the Senate, with the ludicrous suggestion that Judges should appoint guardian ad litems according to a random list. Call it the Wheel of Fortune, Texas Lotto, or Pin the tail on the donkey, it’s asinine.

Why aren’t we talking about Bills that require some level of competency for the appointees? The reason is because this is not about protecting anyone. It’s not about the elderly or the disabled aside from additional ways we can find to exploit them. If Texas deemed elderly and disabled citizens “people” rather than “property” or “chattel,” this would not even be an issue. The elderly and disabled deserve better and the solution is simple–the Family Code.