MONITORING, OVERSIGHT, PENALTIES, AND ENFORCEMENT
There are major problems in the present system: lack of uniformity in the law all
across the states; inability or refusal of the courts to monitor; and lack of oversight
by the legislatures, who have long ago delegated power to the courts to make rules
of procedure. Management by court administrators has proven quite ineffective in
protecting individual rights.
As an example of failure of timely monitoring, one of our member cases in Miami- Dade County involves a situation where the presiding judge, Maria M. Korvick, has failed to review annual guardian reports for as long as a year or two. A lot can happen in a year – or two! Due to lack of oversight, she was able to appoint a disqualified person, himself under psychiatric disability, as a guardian of the property. There has been no property in the estate since 2004, when an indigence affidavit was filed. However, the judge has refused to discharge the property guardian despite a statute mandating that she do so. Why?
There has been an encouraging news item on monitoring in Idaho. Superior Court Judge William Acey of Hells Canyon Circuit set up a blue ribbon committee of over a dozen lawyers to review and oversee guardianship cases. The KLEW-TV anchor reported it as follows:
"The review process will insure that these people are not getting ripped off by whomever is overseeing their accounts."\52/
We would hope that the work will be done pro bono.
Many Studies and Suggestions - No Meaningful Reform!
The problems with guardianship are not new; studies and reports have been made by a variety of sources over and over through the years. We have not accessed every report; our objective is merely to show that there has been a variety of reporting on the issues, to no avail: the system is still in need of reform. While there have been numerous - and some excellent - recommendations from professionals, nothing much has changed. NASGA continues to grow because of the failure of professionals and government to clean up the out-of-control system.
As far back as 1987, Associated Press published a shocking report of abuse,\53/ which began a series of professional surveys and reports on guardianship.
In 1988, a National Guardianship Symposium, later known as Wingspread, set up “landmark” recommendations for reform of the nation’s guardianship system, focusing on accountability. Accountability is still lacking – 21 years later.
In 1989, Money Magazine had this to say:
"The legal system that is supposed to protect our frail elderly is a national disgrace. All too often it strips them of their rights and leaves them open to financial abuse."\54/
In 1991, the American Bar Association published a national study of guardianship monitoring.\55/ This study was the first of many, continuing to this date, focusing on the problems of monitoring.
In 1999, an article in the New York Law Journal\56/ exposed the weaknesses of the court examiner system:
"A THREE-YEAR crackdown on court examiners appointed to monitor the work of guardians for incapacitated persons has resulted in the removal of five examiners and the resignations of two others.
"Steven Singer, the chief guardianship clerk in Manhattan State Supreme Court, said that shortly after he assumed responsibility for the examiner program in his court in 1996, he learned that many of the 23 examiners were woefully behind in filing their reports. They were filing only about 10 percent, or 100, of the roughly 1,000 reports due every year, he said.
"The Glen committee found 'a wide range, and some disturbing failures of the examiner system.' Some examiners, it discovered, had not filed reports for 10 years.
"Mr. Singer reported that one examiner had neglected to file one report in any of the 25 cases assigned to him; another filed in only three of 40 cases."
New York County Surrogate Kristin Booth Glen, then Dean of CUNY Law School, heading a committee to look into the court examiner problem in 1999, had suggested that monitoring services could come from law, accounting and social work students, under supervision. That suggestion would have provided intern credit to the students, who would have worked pro bono, instead of depleting estate assets.
NARY A WORD FROM THE LEGISLATURE OR THE COURT ADMINISTRATORS ON THAT EXCELLENT SUGGESTION!
There have been groundbreaking investigative studies by major media and a number of books written since then: NY Daily News 2001 “Milking the Helpless” series, NBC-TV 2001 “Guarding the Guardians,” Washington Post 2003 “Misplaced Trust: Guardians in the District”, AARP 2004 “Stolen Lives,” LA Times 2005 “Guardians for Profit” series, Seattle Times 2006 “Your Courts, Their Secrets,” various Fox and CBS TV newscasts; and books: "Financial Abuse of the Elderly – A Detective’s Case Files of Exploitation Crimes," "Marked for Destruction,"\57/ and "Retirement Nightmare" among others. There are also a growing number of websites protesting unlawful and abusive practices in guardianship, and numerous victims are posting videos to the Internet.\58/
As a result of the major exposure in New York State in 2001, then Chief Judge Judith Kaye appointed both a Commission on Fiduciary Appointments and a Special Inspector General for Fiduciary Appointments, in an atmosphere of controversy and hostile public scrutiny.
Witnesses complained:
“Laypersons believe they have nowhere to go with questions and complaints. At its public hearing in New York City, the Commission heard a litany of complaints from individuals who were parties, or had relatives or friends who were parties, in cases in which fiduciaries were appointed. The Commission also received numerous letters and written submissions from other complainants. Although the Commission had neither the resources nor the mandate to investigate these complaints, it is apparent that there is widespread mistrust and confusion among many people who are directly affected by fiduciary appointments. Much of this results from what the Commission has concluded is a widely-held perception that the court system and its representatives are not available to answer questions and investigate complaints that ordinary citizens have about the fiduciary process.”\59/
The Commission also made recommendations put into place by the Office of Court Administration, which still left much to be desired on the part of the public. A computer tracking program\60/ was made available on the Internet containing information on each fiduciary appointment and their awards.
The program is very difficult and time consuming to browse: compensation searches are limited to a one-year period within each separate search, and identifying data must be repeated for each search. Anyone taking the time and trouble to do a detailed examination of any one judge’s awards for a period of ten years would see how - in little cat's feet - the individual judges began timidly, then escalated their awards, year after year, building into the present feeding frenzy.
NASGA believes such information should be made available for the public on the Internet, via a user-friendly service in every state, inasmuch as some judges are improperly sealing files on claims of confidentiality in this important area of public interest.
The Special Inspector General’s report confirms our own findings:
“A closer examination of several selected guardianship cases revealed that the guardians apparently did not always act in the best interests of their wards. Serious lapses were found in the quality of care that guardians provided in meeting the personal needs of the IPs. Moreover, guardians apparently did not always strive to promote and preserve the IPs' financial interests, as they were obligated to do as fiduciaries.”\61/ (Emphasis added)
That same report is indicative of a lack of monitoring:
"It appears that at least three individuals were appointed in violation of the $5,000 rule. One received four guardian ad litem appointments within a 12-month period in which she earned $7,500, $10,500, $7,500 and $31,500, respectively. Another received three appointments within a five-month period in which he earned $11,500, $8,500 and $27,500, respectively."
That $5,000 problem no longer exists. It was “resolved” by increasing the annual fee cap to $50,000!\62/ Apparently, there still wasn't much monitoring after the 2001 report.
One of our members used the court computer system to test a fiduciary’s reported 12-month earnings after the new fee cap was put in place. Sad to say, there was apparently no monitoring there, either.
That member found that Margaret Ann Bomba, New York attorney/guardian, had received awards of approximately $40,000 over and above the increased $50,000 12-month limit.
Reported to the court system, Bomba’s name was temporarily removed from the active appointment list, but nothing was done, at least to our knowledge, about the excess fees allowed or the judges who allowed them. This same lawyer had long ago been criticized for billing for office expenses which were part of her guardian function and not separately billable.
In 2001, National Academy of Elder Law Attorneys (NAELA), together with Stetson University College of Law, as sponsors, and a variety of other co-sponsors (all professional organizations engaged in elder issues), convened the Second National Guardianship Conference, which came to be known as the “Wingspan Conference.” \63/
At that Conference, several recommendations on monitoring and accountability were made in order to clarify the earlier 1988 "Wingspread" statements, one of which stated, "Courts have the primary responsibility for monitoring."
In New York, the Appellate Divisions of the New York State Unified Court System were responsible for management of the court examiner program.
However, they were apparently not monitoring their court examiners.
In a 2004 criminal prosecution of a guardian, a grand jury made the following findings, based on the case of attorney “John Doe” (Robert B. Kress), who systematically stole $2 million from the estates of 14 different wards over a five year period.
“Article 81 of the New York Mental Hygiene Law establishes a system of guardianship to help to ensure that the assets of individuals who are incapable of managing their own affairs are looked after and protected. The evidence before the Grand Jury, however, demonstrates that the system has gone horribly wrong. Because of the existence of a number of loopholes and deficiencies in both the existing statutory provisions and court rules relating to guardianships and the enforcement of those provisions and rules, as well as the laxity of those appointed to oversee the guardianships themselves, instead of serving to protect the assets of incapacitated persons, the existing guardianship system presents the opportunity for unscrupulous guardians to loot the assets of their wards and enrich themselves with impunity.
“The Grand Jury heard evidence that John Doe, an attorney, stole over $2 million over a five-year period from fourteen separate guardianships. Although Article 81 required him to exercise ‘the utmost care and diligence and the utmost degree of trust, loyalty and fidelity’ toward his wards, the attorney knew that no one was looking over his shoulder. He testified that ‘[N]obody looks at anything. You can just file your papers with the Court . . .[T]here is nobody who watches over you, no watchdog agency.’ Doe accomplished these thefts with astonishing ease. He did not use any complex accounting methods to hide them. Instead, he simply reached in and helped himself to the assets of those whom he was chosen to protect knowing that there was nothing or no one to stop him.
“Serious flaws in the statutory provisions and court rules, and their enforcement, were thus responsible for creating the scenario that permitted John Doe's larcenies to go unnoticed, in some cases for years.” (Emphasis added)
The 2004 grand jury report also recommended a series of legislative and administrative changes.\64/
According to the report, these crimes went undetected because the court examiners did not exercise adequate vigilance in reviewing the attorney’s work; and because of other systemic weaknesses in the guardianship oversight system. This, despite the comprehensive 1999 report, “Crackdown on Court Examiners.”
A 2004 GAO report to the Senate Special Committee on Aging\65/ confirms that “all 50 states and the District of Columbia have statutes providing for state or local court oversight of guardianship appointments, but court procedures for implementing these laws vary considerably.” (Emphasis added)
That report recommended Federal involvement, as follows:
“GAO recommends that (1) the Social Security Administration lead an interagency/state court group to study options for prompt and systematic information sharing for the protection of incapacitated elderly people and that (2) the Department of Health and Human Services provide support to states and national organizations involved in guardianship programs in efforts to compile national data on the incidence of abuse with and without the assignment of a guardian or representative payee and to review state policies for interstate transfer and recognition of guardianship appointments. HHS, Office of Personnel Management (OPM), and VA agreed with the recommendations. SSA disagreed, citing privacy issues.“
The public interest must now outweigh any claimed privacy issues, because of rampant violation of due process, statutory rights and protections, and growing misuse/misapplication of state guardianship statutes by practitioners and judges.
These violations are permitted to continue only because of the long-running failure of the states to watchdog their cases.
In 2004, National Academy of Elder Law Attorneys (NAELA), National College of Probate Judges (NCPJ), and National Guardianship Association (NGA) convened another Joint Conference - a Wingspan Guardianship Implementation Session - bringing together guardians, elder law attorneys, case managers, social workers, healthcare professionals and state judges from around the country to discuss guardianship issues.\66/
NAELA’s press release announcing the Conference,\67/ referred to "horrific abuse" of the elderly:
"‘We would all like to think that we will be protected by ethical professionals or loving family members if we are ever faced with the need for guardianship as we age,’ said NAELA elder law attorney A. Frank Johns, who testified at the GAO hearing and is Joint Conference chair. ‘The truth is that in many states across the country little is being done to ensure the necessary funding, training, accountability and monitoring of guardians that could prevent the horrific abuse that continues to occur against our older Americans. This Conference and Session is another step towards a remedy.’" (Emphasis added)
It was also noted that "standards between federal and state authorities should be set to ensure the quality of all legal guardian care from coast to coast."
That has never happened, and there has been no remedy against the “horrific abuse.” It is now the responsibility of the federal government to set a controlling standard.
In 2005, the New York State Commission on Fiduciary Appointments addressed the issues again,\68/ discussing historical attempts to deal with guardianship problems, and reviewed the changes since 2001, reporting that:
“[I]n a limited number of cases, guardians have abused their positions of trust. The courts have a special duty to guard the interests of
the incapacitated, and reforms must be enacted to ensure adequate oversight of guardians.” (Emphasis added)
They stated that “The court examiner…is the key to guardian oversight in New York,” but reported problems there:
“Though generally staffed by skilled and dedicated individuals, the guardianship oversight system suffers from several structural drawbacks. Administrative complexity is one. Each Department administers its court examiner program differently and procedures governing the filing of reports, training, and payment can vary greatly, even from county to county within the same Department.
“We heard repeated testimony that examinations of financial records are often cursory, confirmation of the guardian’s report with backup documents is not common, face-to-face interviews with guardians are rarely conducted, many key tasks are delegated to secretarial staff, and lines of communication between examiners and guardians are frequently so poor or nonexistent that many examiners learn about the deaths of IPs only by reading obituary columns.
“These findings are consistent with those of the Queens Grand Jury Report that lax oversight by court examiners facilitated an attorney guardian’s thefts, which took fairly simple forms: writing checks from the incapacitated person’s account to himself; drawing up fraudulent wills; and, simply expropriating assets missed during the initial evaluation of the IP’s estate.” (Emphasis added)
The report also found that the attorney-guardian often failed to file any accountings and was not compelled to do so by court examiners or the courts, and that the attorney-guardian failed to promptly notify the court of the death of his wards or to file the statutorily required final accountings.
It is unclear whether the examiners were not getting paid or not getting paid enough, but their annual cap was increased, as a result of this report, from $50,000 to $75,000. Apparently, a fee increase made no difference in job performance.
Those fees continue to eat up the estates, contrary to the purpose of guardianship - conservation!
Although there were some operational changes to increase public confidence in the integrity and impartiality of New York's fiduciary appointment process, great public dissatisfaction with the process continues to date.
While centered on New York State, the reports are comprehensive enough to relate to systemic guardianship problems generally throughout all the states.
John H. Langbein, Sterling Professor of Law and Legal History at Yale Law School, testified before the Connecticut Legislature Committee in 2005, stating: “For estate planning professionals and law professors, Connecticut is the poster child for how not to organize probate courts.” \69/
Changes in the Connecticut probate court system have finally been signed into law, \70/ but won’t be put into effect very quickly.
California created a Probate Conservatorship Task Force and began a movement toward reform in 2006, following the LA Times series, but funding was pulled and reform has been stalled.
A 2006 AARP/ABA report states:
“Court monitoring of guardians is essential to ensure the welfare of incapacitated persons, identify abuses, and sanction guardians who
demonstrate malfeasance.”\71/
In 2006, in response to a request by the Senate Special Committee on Aging, the GAO testified before that Committee and followed up on its own July 2004 report.\72/
Since the title of the report, "GUARDIANSHIPS: Little Progress in Ensuring Protection for Incapacitated Elderly People” speaks for itself, there is not much more we can say, except that NASGA was not part of the meeting of the various professional groups. Our voice is yet to be heard. Three years later, nothing has changed, and the GAO title is still appropriate.
In December 2007, less than a year after the GAO report, AARP and ABA issued another joint report entitled “Guarding the Guardians: Promising Practices for Court Monitoring.”\73/ They surveyed guardianship practices and forms utilized in four states: Arizona, Idaho, New York, and Texas, reviewing and applauding various methods and reiterating the critical need for monitoring.
All of these conferences and reports failed to bring a uniform standard, nor have they in any way discouraged theft by fiduciaries.
_______________________
Footnotes:
52 KLEW-TV, Blue Ribbon Committee Set Up To Examine Guardianship Issues, by Stephanie Smith (08/20/09) http://www.klewtv.com/news/49467857.html
53 Guardians of the Elderly: An Ailing System, AP Special Report (Sept. 1987), Abuses in Guardianship of the Elderly and Infirm: A National Disgrace, H.R. Comm. Print 100-639, at 13–39 (Dec. 1987) (Not available
online.)
54 Money Magazine, Gulag of Guardianship, by Denise M. Topolnicki; Reporter Associates: Beth M. Gilbert and Teresa Tritch (03/01/89) http://money.cnn.com/magazines/moneymag/moneymag_archive/1989/03/01/84988
55 American Bar Association Commission on the Mentally Disabled and Commission on Legal Problems of the Elderly, Steps to Enhance Guardianship Monitoring, by Sally Balch Hurme (1991)
56 New York Law Journal, Court Officials Crack Down on Examiners, by Daniel Wise (01/25/99) (Not available online)
57 Free download available at www.MarkedForDestruction.com. Also see Appendix A.
58 http://www.StopGuardianAbuse.org/youtube.htm
59 December 2001 Report of the NYS Commission on Fiduciary Appointments http://www.courts.state.ny.us/ip/gfs/fidcommreport.html
60 Part 36 Approved Compensation Search, https://iapps.courts.state.ny.us/fiduciary/CompensationSearchServlet
61 2001 Report of the Special Inspector General for Fiduciary Appointments, Fiduciary Appointments in New York, A Report to Chief Judge Judith S. Kaye and Chief Administrative Judge Jonathan Lippman,
http://www.nycourts.gov/ip/gfs/igfiduciary.html
62 Fiduciary Appointments in New York - A Report to Chief Judge Judith S. Kaye and Chief Administrative Judge Jonathan Lippman, (2001) http://www.nycourts.gov/ip/gfs/igfiduciary.html
63 Stetson Law Review. vol. XXXI, pp. 595-609, WINGSPAN — THE SECOND NATIONAL GUARDIANSHIP CONFERENCE, RECOMMENDATIONS http://justice.law.stetson.edu/lawrev/abstracts/PDF/31-3Recommendations.pdf
64 Report of the Grand Jury of the Supreme Court, Queens County, Issued Pursuant to Criminal Procedure Law § 190.85(1)(c) Concerning Thefts from Guardianships (03/03/04) http://www.queensda.org/newpressreleases/2004/03-03-2004_Grand_jury.htm
65 U.S. Government Accountability Office, GUARDIANSHIPS: Collaboration Needed to Protect Incapacitated Elderly People, GAO-04-655, Appendix VII: Comments from the Social Security Administration (06/10/04)http://www.gao.gov/new.items/d04655.pdf
66 National Wingspan Implementation Session: Action Steps on Adult Guardianship Progress (2004) http://contentdm.ncsconline.org/cgi-bin/showfile.exe?CISOROOT=/famct&CISOPTR=265
67 National Groups Address Guardianship Reform To Protect Older Americans (11/11/04) http://www.naela.org/ViewFullArticle.aspx?ArticleID=150
68 Report Of The Commission On Fiduciary Assignments (2005) http://www.nycourts.gov/reports/fiduciary-2005.pdf
69 Statement of Prof. John H. Langbein, Yale Law School, to Conn. Legislature Committee, The Scandal of Connecticut's Probate Courts (11/11/05) http://www.law.yale.edu/faculty/1766.htm
70 Courant CapitalWatch, Gov. Rell Signs Probate Reform Bill – Takes Effect in 2011, by Daniela Altimari (06/12/09) http://blogs.courant.com/capitol_watch/2009/06/rell-signs-probate-reform-bill.html
71 2006 AARP/ABA report: Guardianship Monitoring - a National Survey of Court Practices http://assets.aarp.org/rgcenter/consume/2006_14_guardianship.pdf
72 2006 GAO Report: GUARDIANSHIPS, Little Progress in Ensuring Protection for Incapacitated Elderly People (Sept. 2006) http://www.gao.gov/new.items/d061086t.pdf
73 AARP/ABA, Guarding the Guardians: Promising Practices for Court Monitoring (Dec. 2007) http://assets.aarp.org/rgcenter/il/2007_21_guardians.pdf
As an example of failure of timely monitoring, one of our member cases in Miami- Dade County involves a situation where the presiding judge, Maria M. Korvick, has failed to review annual guardian reports for as long as a year or two. A lot can happen in a year – or two! Due to lack of oversight, she was able to appoint a disqualified person, himself under psychiatric disability, as a guardian of the property. There has been no property in the estate since 2004, when an indigence affidavit was filed. However, the judge has refused to discharge the property guardian despite a statute mandating that she do so. Why?
There has been an encouraging news item on monitoring in Idaho. Superior Court Judge William Acey of Hells Canyon Circuit set up a blue ribbon committee of over a dozen lawyers to review and oversee guardianship cases. The KLEW-TV anchor reported it as follows:
"The review process will insure that these people are not getting ripped off by whomever is overseeing their accounts."\52/
We would hope that the work will be done pro bono.
Many Studies and Suggestions - No Meaningful Reform!
The problems with guardianship are not new; studies and reports have been made by a variety of sources over and over through the years. We have not accessed every report; our objective is merely to show that there has been a variety of reporting on the issues, to no avail: the system is still in need of reform. While there have been numerous - and some excellent - recommendations from professionals, nothing much has changed. NASGA continues to grow because of the failure of professionals and government to clean up the out-of-control system.
As far back as 1987, Associated Press published a shocking report of abuse,\53/ which began a series of professional surveys and reports on guardianship.
In 1988, a National Guardianship Symposium, later known as Wingspread, set up “landmark” recommendations for reform of the nation’s guardianship system, focusing on accountability. Accountability is still lacking – 21 years later.
In 1989, Money Magazine had this to say:
"The legal system that is supposed to protect our frail elderly is a national disgrace. All too often it strips them of their rights and leaves them open to financial abuse."\54/
In 1991, the American Bar Association published a national study of guardianship monitoring.\55/ This study was the first of many, continuing to this date, focusing on the problems of monitoring.
In 1999, an article in the New York Law Journal\56/ exposed the weaknesses of the court examiner system:
"A THREE-YEAR crackdown on court examiners appointed to monitor the work of guardians for incapacitated persons has resulted in the removal of five examiners and the resignations of two others.
"Steven Singer, the chief guardianship clerk in Manhattan State Supreme Court, said that shortly after he assumed responsibility for the examiner program in his court in 1996, he learned that many of the 23 examiners were woefully behind in filing their reports. They were filing only about 10 percent, or 100, of the roughly 1,000 reports due every year, he said.
"The Glen committee found 'a wide range, and some disturbing failures of the examiner system.' Some examiners, it discovered, had not filed reports for 10 years.
"Mr. Singer reported that one examiner had neglected to file one report in any of the 25 cases assigned to him; another filed in only three of 40 cases."
New York County Surrogate Kristin Booth Glen, then Dean of CUNY Law School, heading a committee to look into the court examiner problem in 1999, had suggested that monitoring services could come from law, accounting and social work students, under supervision. That suggestion would have provided intern credit to the students, who would have worked pro bono, instead of depleting estate assets.
NARY A WORD FROM THE LEGISLATURE OR THE COURT ADMINISTRATORS ON THAT EXCELLENT SUGGESTION!
There have been groundbreaking investigative studies by major media and a number of books written since then: NY Daily News 2001 “Milking the Helpless” series, NBC-TV 2001 “Guarding the Guardians,” Washington Post 2003 “Misplaced Trust: Guardians in the District”, AARP 2004 “Stolen Lives,” LA Times 2005 “Guardians for Profit” series, Seattle Times 2006 “Your Courts, Their Secrets,” various Fox and CBS TV newscasts; and books: "Financial Abuse of the Elderly – A Detective’s Case Files of Exploitation Crimes," "Marked for Destruction,"\57/ and "Retirement Nightmare" among others. There are also a growing number of websites protesting unlawful and abusive practices in guardianship, and numerous victims are posting videos to the Internet.\58/
As a result of the major exposure in New York State in 2001, then Chief Judge Judith Kaye appointed both a Commission on Fiduciary Appointments and a Special Inspector General for Fiduciary Appointments, in an atmosphere of controversy and hostile public scrutiny.
Witnesses complained:
“Laypersons believe they have nowhere to go with questions and complaints. At its public hearing in New York City, the Commission heard a litany of complaints from individuals who were parties, or had relatives or friends who were parties, in cases in which fiduciaries were appointed. The Commission also received numerous letters and written submissions from other complainants. Although the Commission had neither the resources nor the mandate to investigate these complaints, it is apparent that there is widespread mistrust and confusion among many people who are directly affected by fiduciary appointments. Much of this results from what the Commission has concluded is a widely-held perception that the court system and its representatives are not available to answer questions and investigate complaints that ordinary citizens have about the fiduciary process.”\59/
The Commission also made recommendations put into place by the Office of Court Administration, which still left much to be desired on the part of the public. A computer tracking program\60/ was made available on the Internet containing information on each fiduciary appointment and their awards.
The program is very difficult and time consuming to browse: compensation searches are limited to a one-year period within each separate search, and identifying data must be repeated for each search. Anyone taking the time and trouble to do a detailed examination of any one judge’s awards for a period of ten years would see how - in little cat's feet - the individual judges began timidly, then escalated their awards, year after year, building into the present feeding frenzy.
NASGA believes such information should be made available for the public on the Internet, via a user-friendly service in every state, inasmuch as some judges are improperly sealing files on claims of confidentiality in this important area of public interest.
The Special Inspector General’s report confirms our own findings:
“A closer examination of several selected guardianship cases revealed that the guardians apparently did not always act in the best interests of their wards. Serious lapses were found in the quality of care that guardians provided in meeting the personal needs of the IPs. Moreover, guardians apparently did not always strive to promote and preserve the IPs' financial interests, as they were obligated to do as fiduciaries.”\61/ (Emphasis added)
That same report is indicative of a lack of monitoring:
"It appears that at least three individuals were appointed in violation of the $5,000 rule. One received four guardian ad litem appointments within a 12-month period in which she earned $7,500, $10,500, $7,500 and $31,500, respectively. Another received three appointments within a five-month period in which he earned $11,500, $8,500 and $27,500, respectively."
That $5,000 problem no longer exists. It was “resolved” by increasing the annual fee cap to $50,000!\62/ Apparently, there still wasn't much monitoring after the 2001 report.
One of our members used the court computer system to test a fiduciary’s reported 12-month earnings after the new fee cap was put in place. Sad to say, there was apparently no monitoring there, either.
That member found that Margaret Ann Bomba, New York attorney/guardian, had received awards of approximately $40,000 over and above the increased $50,000 12-month limit.
Reported to the court system, Bomba’s name was temporarily removed from the active appointment list, but nothing was done, at least to our knowledge, about the excess fees allowed or the judges who allowed them. This same lawyer had long ago been criticized for billing for office expenses which were part of her guardian function and not separately billable.
In 2001, National Academy of Elder Law Attorneys (NAELA), together with Stetson University College of Law, as sponsors, and a variety of other co-sponsors (all professional organizations engaged in elder issues), convened the Second National Guardianship Conference, which came to be known as the “Wingspan Conference.” \63/
At that Conference, several recommendations on monitoring and accountability were made in order to clarify the earlier 1988 "Wingspread" statements, one of which stated, "Courts have the primary responsibility for monitoring."
In New York, the Appellate Divisions of the New York State Unified Court System were responsible for management of the court examiner program.
However, they were apparently not monitoring their court examiners.
In a 2004 criminal prosecution of a guardian, a grand jury made the following findings, based on the case of attorney “John Doe” (Robert B. Kress), who systematically stole $2 million from the estates of 14 different wards over a five year period.
“Article 81 of the New York Mental Hygiene Law establishes a system of guardianship to help to ensure that the assets of individuals who are incapable of managing their own affairs are looked after and protected. The evidence before the Grand Jury, however, demonstrates that the system has gone horribly wrong. Because of the existence of a number of loopholes and deficiencies in both the existing statutory provisions and court rules relating to guardianships and the enforcement of those provisions and rules, as well as the laxity of those appointed to oversee the guardianships themselves, instead of serving to protect the assets of incapacitated persons, the existing guardianship system presents the opportunity for unscrupulous guardians to loot the assets of their wards and enrich themselves with impunity.
“The Grand Jury heard evidence that John Doe, an attorney, stole over $2 million over a five-year period from fourteen separate guardianships. Although Article 81 required him to exercise ‘the utmost care and diligence and the utmost degree of trust, loyalty and fidelity’ toward his wards, the attorney knew that no one was looking over his shoulder. He testified that ‘[N]obody looks at anything. You can just file your papers with the Court . . .[T]here is nobody who watches over you, no watchdog agency.’ Doe accomplished these thefts with astonishing ease. He did not use any complex accounting methods to hide them. Instead, he simply reached in and helped himself to the assets of those whom he was chosen to protect knowing that there was nothing or no one to stop him.
“Serious flaws in the statutory provisions and court rules, and their enforcement, were thus responsible for creating the scenario that permitted John Doe's larcenies to go unnoticed, in some cases for years.” (Emphasis added)
The 2004 grand jury report also recommended a series of legislative and administrative changes.\64/
According to the report, these crimes went undetected because the court examiners did not exercise adequate vigilance in reviewing the attorney’s work; and because of other systemic weaknesses in the guardianship oversight system. This, despite the comprehensive 1999 report, “Crackdown on Court Examiners.”
A 2004 GAO report to the Senate Special Committee on Aging\65/ confirms that “all 50 states and the District of Columbia have statutes providing for state or local court oversight of guardianship appointments, but court procedures for implementing these laws vary considerably.” (Emphasis added)
That report recommended Federal involvement, as follows:
“GAO recommends that (1) the Social Security Administration lead an interagency/state court group to study options for prompt and systematic information sharing for the protection of incapacitated elderly people and that (2) the Department of Health and Human Services provide support to states and national organizations involved in guardianship programs in efforts to compile national data on the incidence of abuse with and without the assignment of a guardian or representative payee and to review state policies for interstate transfer and recognition of guardianship appointments. HHS, Office of Personnel Management (OPM), and VA agreed with the recommendations. SSA disagreed, citing privacy issues.“
The public interest must now outweigh any claimed privacy issues, because of rampant violation of due process, statutory rights and protections, and growing misuse/misapplication of state guardianship statutes by practitioners and judges.
These violations are permitted to continue only because of the long-running failure of the states to watchdog their cases.
In 2004, National Academy of Elder Law Attorneys (NAELA), National College of Probate Judges (NCPJ), and National Guardianship Association (NGA) convened another Joint Conference - a Wingspan Guardianship Implementation Session - bringing together guardians, elder law attorneys, case managers, social workers, healthcare professionals and state judges from around the country to discuss guardianship issues.\66/
NAELA’s press release announcing the Conference,\67/ referred to "horrific abuse" of the elderly:
"‘We would all like to think that we will be protected by ethical professionals or loving family members if we are ever faced with the need for guardianship as we age,’ said NAELA elder law attorney A. Frank Johns, who testified at the GAO hearing and is Joint Conference chair. ‘The truth is that in many states across the country little is being done to ensure the necessary funding, training, accountability and monitoring of guardians that could prevent the horrific abuse that continues to occur against our older Americans. This Conference and Session is another step towards a remedy.’" (Emphasis added)
It was also noted that "standards between federal and state authorities should be set to ensure the quality of all legal guardian care from coast to coast."
That has never happened, and there has been no remedy against the “horrific abuse.” It is now the responsibility of the federal government to set a controlling standard.
In 2005, the New York State Commission on Fiduciary Appointments addressed the issues again,\68/ discussing historical attempts to deal with guardianship problems, and reviewed the changes since 2001, reporting that:
“[I]n a limited number of cases, guardians have abused their positions of trust. The courts have a special duty to guard the interests of
the incapacitated, and reforms must be enacted to ensure adequate oversight of guardians.” (Emphasis added)
They stated that “The court examiner…is the key to guardian oversight in New York,” but reported problems there:
“Though generally staffed by skilled and dedicated individuals, the guardianship oversight system suffers from several structural drawbacks. Administrative complexity is one. Each Department administers its court examiner program differently and procedures governing the filing of reports, training, and payment can vary greatly, even from county to county within the same Department.
“We heard repeated testimony that examinations of financial records are often cursory, confirmation of the guardian’s report with backup documents is not common, face-to-face interviews with guardians are rarely conducted, many key tasks are delegated to secretarial staff, and lines of communication between examiners and guardians are frequently so poor or nonexistent that many examiners learn about the deaths of IPs only by reading obituary columns.
“These findings are consistent with those of the Queens Grand Jury Report that lax oversight by court examiners facilitated an attorney guardian’s thefts, which took fairly simple forms: writing checks from the incapacitated person’s account to himself; drawing up fraudulent wills; and, simply expropriating assets missed during the initial evaluation of the IP’s estate.” (Emphasis added)
The report also found that the attorney-guardian often failed to file any accountings and was not compelled to do so by court examiners or the courts, and that the attorney-guardian failed to promptly notify the court of the death of his wards or to file the statutorily required final accountings.
It is unclear whether the examiners were not getting paid or not getting paid enough, but their annual cap was increased, as a result of this report, from $50,000 to $75,000. Apparently, a fee increase made no difference in job performance.
Those fees continue to eat up the estates, contrary to the purpose of guardianship - conservation!
Although there were some operational changes to increase public confidence in the integrity and impartiality of New York's fiduciary appointment process, great public dissatisfaction with the process continues to date.
While centered on New York State, the reports are comprehensive enough to relate to systemic guardianship problems generally throughout all the states.
John H. Langbein, Sterling Professor of Law and Legal History at Yale Law School, testified before the Connecticut Legislature Committee in 2005, stating: “For estate planning professionals and law professors, Connecticut is the poster child for how not to organize probate courts.” \69/
Changes in the Connecticut probate court system have finally been signed into law, \70/ but won’t be put into effect very quickly.
California created a Probate Conservatorship Task Force and began a movement toward reform in 2006, following the LA Times series, but funding was pulled and reform has been stalled.
A 2006 AARP/ABA report states:
“Court monitoring of guardians is essential to ensure the welfare of incapacitated persons, identify abuses, and sanction guardians who
demonstrate malfeasance.”\71/
In 2006, in response to a request by the Senate Special Committee on Aging, the GAO testified before that Committee and followed up on its own July 2004 report.\72/
Since the title of the report, "GUARDIANSHIPS: Little Progress in Ensuring Protection for Incapacitated Elderly People” speaks for itself, there is not much more we can say, except that NASGA was not part of the meeting of the various professional groups. Our voice is yet to be heard. Three years later, nothing has changed, and the GAO title is still appropriate.
In December 2007, less than a year after the GAO report, AARP and ABA issued another joint report entitled “Guarding the Guardians: Promising Practices for Court Monitoring.”\73/ They surveyed guardianship practices and forms utilized in four states: Arizona, Idaho, New York, and Texas, reviewing and applauding various methods and reiterating the critical need for monitoring.
All of these conferences and reports failed to bring a uniform standard, nor have they in any way discouraged theft by fiduciaries.
_______________________
Footnotes:
52 KLEW-TV, Blue Ribbon Committee Set Up To Examine Guardianship Issues, by Stephanie Smith (08/20/09) http://www.klewtv.com/news/49467857.html
53 Guardians of the Elderly: An Ailing System, AP Special Report (Sept. 1987), Abuses in Guardianship of the Elderly and Infirm: A National Disgrace, H.R. Comm. Print 100-639, at 13–39 (Dec. 1987) (Not available
online.)
54 Money Magazine, Gulag of Guardianship, by Denise M. Topolnicki; Reporter Associates: Beth M. Gilbert and Teresa Tritch (03/01/89) http://money.cnn.com/magazines/moneymag/moneymag_archive/1989/03/01/84988
55 American Bar Association Commission on the Mentally Disabled and Commission on Legal Problems of the Elderly, Steps to Enhance Guardianship Monitoring, by Sally Balch Hurme (1991)
56 New York Law Journal, Court Officials Crack Down on Examiners, by Daniel Wise (01/25/99) (Not available online)
57 Free download available at www.MarkedForDestruction.com. Also see Appendix A.
58 http://www.StopGuardianAbuse.org/youtube.htm
59 December 2001 Report of the NYS Commission on Fiduciary Appointments http://www.courts.state.ny.us/ip/gfs/fidcommreport.html
60 Part 36 Approved Compensation Search, https://iapps.courts.state.ny.us/fiduciary/CompensationSearchServlet
61 2001 Report of the Special Inspector General for Fiduciary Appointments, Fiduciary Appointments in New York, A Report to Chief Judge Judith S. Kaye and Chief Administrative Judge Jonathan Lippman,
http://www.nycourts.gov/ip/gfs/igfiduciary.html
62 Fiduciary Appointments in New York - A Report to Chief Judge Judith S. Kaye and Chief Administrative Judge Jonathan Lippman, (2001) http://www.nycourts.gov/ip/gfs/igfiduciary.html
63 Stetson Law Review. vol. XXXI, pp. 595-609, WINGSPAN — THE SECOND NATIONAL GUARDIANSHIP CONFERENCE, RECOMMENDATIONS http://justice.law.stetson.edu/lawrev/abstracts/PDF/31-3Recommendations.pdf
64 Report of the Grand Jury of the Supreme Court, Queens County, Issued Pursuant to Criminal Procedure Law § 190.85(1)(c) Concerning Thefts from Guardianships (03/03/04) http://www.queensda.org/newpressreleases/2004/03-03-2004_Grand_jury.htm
65 U.S. Government Accountability Office, GUARDIANSHIPS: Collaboration Needed to Protect Incapacitated Elderly People, GAO-04-655, Appendix VII: Comments from the Social Security Administration (06/10/04)http://www.gao.gov/new.items/d04655.pdf
66 National Wingspan Implementation Session: Action Steps on Adult Guardianship Progress (2004) http://contentdm.ncsconline.org/cgi-bin/showfile.exe?CISOROOT=/famct&CISOPTR=265
67 National Groups Address Guardianship Reform To Protect Older Americans (11/11/04) http://www.naela.org/ViewFullArticle.aspx?ArticleID=150
68 Report Of The Commission On Fiduciary Assignments (2005) http://www.nycourts.gov/reports/fiduciary-2005.pdf
69 Statement of Prof. John H. Langbein, Yale Law School, to Conn. Legislature Committee, The Scandal of Connecticut's Probate Courts (11/11/05) http://www.law.yale.edu/faculty/1766.htm
70 Courant CapitalWatch, Gov. Rell Signs Probate Reform Bill – Takes Effect in 2011, by Daniela Altimari (06/12/09) http://blogs.courant.com/capitol_watch/2009/06/rell-signs-probate-reform-bill.html
71 2006 AARP/ABA report: Guardianship Monitoring - a National Survey of Court Practices http://assets.aarp.org/rgcenter/consume/2006_14_guardianship.pdf
72 2006 GAO Report: GUARDIANSHIPS, Little Progress in Ensuring Protection for Incapacitated Elderly People (Sept. 2006) http://www.gao.gov/new.items/d061086t.pdf
73 AARP/ABA, Guarding the Guardians: Promising Practices for Court Monitoring (Dec. 2007) http://assets.aarp.org/rgcenter/il/2007_21_guardians.pdf