One early memory of my law enforcement career was the day I learned the concept of the-letter-of-the-law versus the-spirit-of-the-law.
Simply put the-letter-of-the-law means the law is applied exactly as written. For example - the speed limit on highways is 65 mph, any vehicle traveling at 66 mph or greater is in violation of traffic law and shall be issued a speeding ticket.
The spirit-of-the-law leaves room for officer discretion. This means I could consider other factors when deciding to issue a ticket, give a warning, or ignore a violation all together. Following the spirit-of-the-law allowed me to apply the law as the legislature intended, especially in situations with extenuating circumstances or a warning was more appropriate.
I think we would all agree, darting across the middle of a busy street can create a dangerous situation for all and could be grounds for a jaywalking violation, but casually walking across the middle of an empty street would not warrant a ticket. Endangering others by driving under the influence is not the same as not coming to a complete stop at a stop sign.
Sometimes, however, the enacted version of a law does not quite hit the mark. The spirit is clear, but the letter of the law leaves room for interpretation - a loophole. We all know, just as water follows the path of least resistance, if there is a loophole in the letter of the law - there’s a lawyer who will take advantage.
Terri LaPoint, an investigative journalist with RealNewsSpark, has written extensively on the exploitation and civil liberty destroying nature of Alabama’s guardianship laws.
In early April of this year, LaPoint testified before the Alabama House Judiciary Committee on the need for guardianship reform.
LaPoint gave a powerful speech in which she pointed out the guardianship and conservatorship system started out as a way to protect the most vulnerable among us - our elderly. However, LaPoint has seen the system fail even though the 5th Amendment’s guarantees that no person shall be “deprived of life, liberty, or property, without due process of law.”
She went on to say some who have been trusted to look after our most vulnerable have used loopholes personally benefit from the way the current laws are written. In her reporting, LaPoint has also found a system, which uses fear tactics and a lack of accountability to exploit seniors and drain their estates of assets meant for their families to inherit.
She said so many seniors have been victimized by the current system that something must be done. At this moment, violent criminals in Alabama prisons have more rights than a senior put under guardianship. LaPoint closed by saying this could not have been the intent of the legislature and called for reforming this system.
I too do not believe Alabama’s guardian and conservatorship laws were intended to be abusive, but as written, the letter-of-the-law permits exploitation. If a loophole can be exploited for financial gain or billable hours, we all know there will be more than a few attorneys who will take advantage.
In most situations, the spirit-of-the-law is sufficient to protect most people, but as seen in Terri LaPoint’s excellent reporting on Alabama seniors, Joann Bashinsky, Marian Leonard, and Marguerite Trent Caddis - it isn’t always enough.
This is why I support Alabama Representative Joe Lovvorn’s (R-District 79) House Bill 603. Rep. Lovvorn’s bill will bring much needed reform to Alabama’s guardian, conservatorship, and probate court rules and procedures.
Among the many improvements proposed in HB603:
- “undue influence exerted on a person is not, alone, adequate grounds for determining that person is incapacitated and in need of a guardian”
- bill would prohibit the appointment of a guardian or conservator when a valid power of attorney or health care directive exists and the person chosen is willing and able to perform needed functions.
- HB603 would declare a guardianship void if the due process rights of the alleged incapacitated person were determined to have been violated.
The American Bar Association Rules of Professional Conduct states, “The legal profession is largely self-governing” and the “legal profession's relative autonomy carries with it special responsibilities of self-government.”
When there is a loophole in a poorly worded law, we expect people to do what is right, not what is what is allowed. Unfortunately, history has shown us, especially in Birmingham, we cannot leave the fox to guard the hen house and expect it to “self-govern.”
Predatory attorneys across this country know exactly what they are doing…and it is disgusting. They are pillaging the hard earned wealth away from their victims, sometimes leaving their heirs with pennies (as in the Marguerite Trent Caddis case – link).
I trust the Alabama legislature will do the right thing and pass Alabama HB603 into law.
Bernard B. Kerik was the 40th Police Commissioner of the New York City Police Department and is a New York Times bestselling author. Read Bernard Kerik's Reports — More Here.
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