PROBLEMS WITH UNLAWFUL/ABUSIVE STATE GUARDIANSHIPS
Rights Violations and Lack of Due Process
Rights violations and lack of due process are two of the major complaints of NASGA concerning guardianship as practiced today.
At best, some guardianship proceedings have an air of propriety; at worst, many are outrageous charades\12/ of "justice" under color of law. These proceedings are not supposed to be adversarial, yet they become such, because of present noncompliance with and misuse of the state protective statutes, allowed by the courts.
A common complaint of our members is that they are deprived/denied access to all court filings, particularly those of a financial nature; i.e. accountings and legal fee billings and applications. Due to claims of “privacy,” they are deprived of information concerning the ward’s status.
There is overwhelming evidence of noncompliance with federal and state law in court cases which we have reviewed. Lack of due process permits the professional “feeding frenzy” which has evolved from misuse and misapplication of laws designed to “protect” and “conserve.” One must wonder why a judge would knowingly violate the law and issue unauthorized and improper adjudications. The only answer: The judge must either be incompetent or corrupt - is there a quid pro quo. Their knowing, willful and deliberate violation of law is shocking and inexcusable.
As a rule, the general evidentiary standard in guardianship is “clear and convincing,” which is rarely met because of a general lack of due process.
Maine has recently elevated their standard from "preponderance of the evidence” to "clear and convincing," \13/ a benefit to wards and their families in that state.
Labeling
Over time, states have expanded their classification for guardianship, apparently casting a wider net by lowering their criteria from "incompetent" to "incapacitated," thus causing guardianship in inappropriate situations. This change in one word can result in an avalanche of unnecessary guardianships of Baby Boomers.
Watchdog Agencies
We are told to report abuse to an APS/DCF-type agency, but many times these agencies do more harm than good. Many proceedings begin as a result of unfounded or false claims of abuse made to agencies against family members who are unable to defend themselves because the filer’s identity is kept confidential, preventing challenge. The problems are similar to those confronted by parents in custody cases - a failure of due process preventing a meaningful defense. Family members can be wrongly labeled as elder abusers or exploiters; and because they are not given the opportunity to face their accusers and defend themselves, they are disadvantaged in court throughout the length of the proceedings and never recover from the unjust stigma.
In a case involving a Florida member, DCF closed a complaint filed against her, but the probate judge continued to copy the original false allegations into subsequent orders – actually going so far as to include them on an order appointing her (the alleged “abuser”) as a guardian of the person, three years later.
“Emergency” (Temporary) Guardianship
An alarming and growing new threat to life, liberty and property rights of the vulnerable elderly and disabled is the phenomenon of the “emergency” or (temporary) guardianship.
The “emergency” conditions can be merely suggested in petitioning by anyone, including APS-type agencies, hospitals, or other health care practitioners, without supporting evidence, and the temporary guardianship put in place without the knowledge – or immediate knowledge - of the AIP or family.
Lack of due process in these temporary proceedings were already a topic of alarm as far back as the 2001 Wingspan Conference,\14/ which produced 68 adopted recommendations, No. 34 of which states:
"Emergency proceedings require the following: actual notice to the respondent before hearing; mandatory appointment of counsel; establishment of the respondent’s emergency; conduct of a hearing on the permanent guardianship as promptly as possible; and placement of limitations on emergency powers.
"Guardianships be limited to the circumstances giving rise to the petition for emergency or temporary guardianship, and be terminated upon appropriate showing that the emergency no longer exists." (Emphasis added)
In Madison County, Illinois, a guardianship of a patient was petitioned for by an elder abuse case manager employed by Visiting Nurses Association. The petitioner actually named the person - Sharon Mehrtens - whom she wished to be appointed as guardian. We must immediately question: what was the nature of the existing relationship between those two individuals?
On the day of submission, the judge treated the petition as an emergency, but the purported medical report was not to be found in the record. (Omission of documents from the record is a common complaint of our members.) There was no notice of hearing to anyone, including the AIP. Six days after the adjudication, verbal "notice" was given to the ward’s wife by the appointed guardian, Sharon Mehrtens. The ward’s wife reports she responded to Mehrtens’ announcement by informing her that she had her husband’s power of attorney, to which Mehrtens responded, “Guardianship trumps power of attorney!”
The reverse is true: assuming capacity, properly executed advance directives obviate the need for guardianship. Advance directives specify the AIP's wishes; courts cannot simply disregard them and take control unlawfully.
Without any proper service on the ward’s wife, Mehrtens made demands on her in an attempt to take control of all marital assets and a safe deposit box. She then quickly applied herself to selling the family residence, only to learn that it was a rental!
Another interesting feature of this "guardianship" was that the record shows service on the AIP at a facility where he was never in residence. This farcical case ended before there could be a hearing on permanent guardianship, due to the ward’s death. More problematic in these instances is that lack of filing of petition and notice of petition, with proof of service necessary for jurisdictional purposes, prevents appeal.
Patronage and Conflicts of Interest
Despite disclosure long ago of a patronage (favoritism/cronyism) problem (and the suspected problem of judicial quid pro quo's), these issues will not be resolved without a major cleanup of guardianship practices, through proper monitoring, oversight, enforcement and penalties. In some ways, guardianships have grown to resemble extensive and highly organized racketeering operations. Colleagues and others, appointed through patronage, have been found to work together in petitioning for and being appointed in various categories in a guardianship; then switching roles on the next case, like the child’s game of “Musical Chairs.” A member has referred to this circular type of operation as "The Incest Club."
An Ohio court rendered the same comparison:
“We agree Trillium has created an unpleasant, incestuous situation where the same agency does the initial investigation into whether a person needs a guardian, and then applies to be the guardian, garnering fees..."\15/
With patronage still in place and groups of common players changing roles, where is the meaningful representation for AIPs when their attorneys are court-appointed and "an attorney's first loyalty is to the court"?\16/
Some state statutes provide for appointment of counsel, some do not; others make it discretionary. Who, more than an AIP, needs assistance of counsel - meaningful counsel - not just assigned counsel (who is usually one of the regular guardianship players/ practitioners with allegiance to the court)?
In 2001, one of the Wingspan "due process" recommendations was that: "Counsel always be appointed for the respondent and act as an advocate rather than as a guardian ad litem.”
However, the problem of rotating "team players" still exists, resulting in ineffective assistance of counsel.
Fraud
NASGA has become aware of abusive use of the proceedings among our member cases in addition to conversion by fiduciaries. These abuses involve below-market real estate deals to insiders; fiduciary appointment of a court clerk (or a judicial family member); tampering/rewriting of trust documents; rewriting of Wills; missing personal property; omissions of real property, stocks and bonds and other assets from inventories and accountings; and/or unfiled inventories and reports.
Conduct of a fiduciary was described in Meinhard v. Salmon, 249 N.Y. 458 (1928):
“Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior." Meinhard at 464.
Conversion of assets is an immensely lucrative opportunity for unjust personal enrichment in a feeding frenzy of professionals, nursing facility operators, nonprofits and others. The lack of adequate controls are an incentive, permitting - perhaps even encouraging - financial abuse.
Although in an unrelated area of law, there is a similarity in a report of a major tort scam involving a company CEO (a lawyer himself) who exposed a mob of lawyers and doctors fabricating tort cases. Texas federal judge Janice Graham Jack – who was overseeing 9,000 silicosis lawsuits aggregated in her court - issued an opinion that shook the tort bar to its core. During depositions, the handful of doctors who provided nearly all these diagnoses began to crack, admitting they'd never seen patients, that their secretaries had filled out forms, and that lawyers had told them what to write. Her scathing opinion unraveled a scam of giant proportions. She accused the doctors and lawyers of "diagnoses that were manufactured for money."\17/
The article goes on to say: “Within a few months, Congress and a federal grand jury were investigating. For U.S. Silica, named in nearly every suit, it was a fairy tale end to a nightmare. Even Mr. Ulizio, the CEO, was shocked. “It was like, 'Oh my God, finally, after all these years, somebody is seeing the truth.'" In similar fashion, guardianship adjudications are often made on untested medical reports. Too often, specific statutory reporting requirements are unmet by medical professionals and ignored by court and counsel; or the statutes may be ambiguous in that area. The right to cross-examination is simply overlooked, and papers are accepted on their face, in violation of the prospective ward's rights.
WE NEED A “FAIRY TALE END” TO THE GUARDIANSHIP NIGHTMARE!
Overbilling and Exploitation
Unfortunately, the motivation for guardianship in many cases is simply greed, masked by the repetitive phrase, “best interests of the ward.” The judge does not disagree. In too many cases, “best interests” turn out to be those of the fiduciaries; not the ward.
The New York Daily News ran a series in 2001 titled “Milking the Helpless.” One of the articles detailed case after case of politically connected lawyers fleecing the assets of nursing facility residents through inappropriate and exorbitant billings.\18/
"[E]specially in cases where the ward had sizable assets, lawyers were more apt to bill for mundane tasks...judges rarely lowered the bills and frequently skirted court rules limiting the number of appointments to no more than one per year that would pay more than $5,000.”
Lack of monitoring permitted fiduciaries to bill and receive fees in excess of the allowable $5,000 annual cap.
Some attorneys acting as guardians or conservators bill at high hourly rates for purported “legal” work which is nothing more than an ordinary and expected part of their fiduciary duties. This work is often clerical in nature and much is actually performed by paralegals or other support staff. One case record which was reviewed included 81 pages of such excess billing by an attorney guardian. A member complained that she was charged legal fees on an hourly basis for leaving a short telephone message, part of the function of a guardian - not to be billed as legal fees. Likewise, office overhead expenses, such as photocopying should not be charged, but is rubberstamped by a careless, non-caring or corrupt judge. These are examples of blatant overbilling.\19/
In Missouri, R. Lynn Myers, an attorney who brought a class action against the Public Administrator, showed how the Public Guardian was found to be double dipping:
‘“Under Missouri law, public administrators generally are allowed to either collect a salary or charge fees for services, but not both, though there are certain exceptions. The law does allow some special fees to be charged by salaried administrators for things such as attorney bills,’ he said. He also believes there must be a contract in place that specifies the services and fees to be charged.
‘“I think you have to establish the standards the public administrator can use to charge clients,’ he said. ‘The administrator is there to be the safety net. They’re there to catch those without families or the indigent, and the service should not be used as a profit center for county operations,’ he said." \20/
NASGA members also report that their loved ones have had to pay excessive legal fees due to the practice of lawyers serving as guardians and then hiring additional lawyers; and even guardians' lawyers hiring more lawyers. This is unnecessary double billing when the guardian is a lawyer, and appointed based on his/her qualifications. The result is increased unjust enrichment for the fiduciaries and
even swifter depletion of the wards’ assets, especially in very large estates.
Many judges rubberstamp fee applications without challenge. In April of 2001,WNBC-TV aired an investigative report\21/ that exposed the corrupt practices in the courtroom of Acting Supreme Court Judge Diane A. Lebedeff, who handled 60% of the guardian caseload in New York County. The fiduciaries appointed by her in the "Dr. Murphy" (not his real name) "grannynapping" case were her colleagues in the New York County Lawyers Association – and all engaged in a feeding frenzy.
One lawyer, Steven Shapiro, was first appointed as court evaluator; he submitted no report! Another lawyer, Michael Miller, was appointed counsel to the AIP. There was no hearing because the AIP consented to the guardianship. Shapiro was then appointed co-guardian of the person and of the property when the judge deemed the matter an emergency. In fact, the record indicates that there was an 11-day overlapping period when Shapiro held both posts. His appointment was changed again to sole guardian of the property.
Shapiro then retained Miller (who had been counsel to the AIP), to "advise him concerning MHL 81 procedure"; this, despite Shapiro's prior appointments as a guardian in other cases. Is it not safe to assume that a guardian - a lawyer, in fact - is appointed because of and for his particular knowledge of the law and familiarity with guardian procedure? According to the record, Lebedeff found no conflict with Miller first appearing as counsel to the AIP and then as counsel to the IP's guardian!
Shapiro, during the proceedings before Lebedeff, retained a total of three other lawyers – all feeding at the trough. Why? Because the ward was originally thought to have had an estate of $72 million, which was later learned to be more like $140 million. In the first 15-month period, the four lawyers had aggregated $492,000 in billings. This was just part of the fee billings in this case.
At one point, Shapiro submitted, as part of a fee bill, an item for a 42-hour day.
The fee for that 42-hour day? $12,600.00. After it was exposed, he claimed it was a clerical error, but the judge had already rubberstamped her approval. Shapiro was later found to have written himself in as a trustee of a trust in the estate. The ward, having previously consented to the guardianship, then sought to have Shapiro removed. He later resigned or was forced to resign. Miller also resigned.
Lebedeff recused herself, and was subsequently demoted to a lower court where she would not be handling guardianships. A member who interviewed Steven Singer, former head of the Guardian Support Unit in New York County, learned that this judge had completely bypassed his unit’s support services, pursuing her own agenda instead. Another judge took over, held a hearing and ordered some of the fees to be repaid. He suggested that the entire proceeding had been a perversion.
In another case, Lebedeff was censured for using her fiduciary appointment powers as her personal piggy bank: paying off her own accountant by giving her fiduciary appointments.
She was censured for a second time in two years by state judicial authorities, who said that she should not have presided over a lawsuit filed by one of her friends.
She also gave court appointments worth more than $84,000 to the friend, a lawyer, while presiding over his personal injury suit.\23/
And who was the friend? Ravi Batra - a political powerhouse. Judges who controlled court appointments where lawyers typically managed the assets and welfare of the elderly, the young or of troubled companies, gave him 150 of these worth more than $500,000 in fees. (This is beyond mere patronage.)
A Texas probate court judge, Don Windle, placed two sisters under guardianship, moved them to a nursing facility, and then restricted access to them. Within a year, one sister died and the second rewrote her will – with the help of her court-appointed guardian. Four years later, upon her death, the second sister’s will revealed shocking contents: among the beneficiaries of approximately $250,000were the judge, the court-appointed guardian, the court-appointed attorney, and a friend of the judge’s who was also his personal accountant (as in the above case) and the court-appointed guardian of the estate. These same people were among a small group of lawyers and other professionals whom Windle repeatedly tapped for work in his court over the years.\24/ Windle remains on the bench.
Another stunning case of a judge who lost his moral compass: Less than a month after Florida ended an elderly-abuse investigation and found no wrongdoing in a judge's relationship with a wealthy bed-ridden neighbor, a suit was filed on her behalf, accusing Broward County Judge Larry Seidlin (the famous “weeping judge” in the Anna Nicole Smith case) and members of his family, of extortion, civil conspiracy, conversion, unjust enrichment and breach of fiduciary duty.\25/
An amended complaint has recently been filed, naming an accountant and three lawyers as additional defendants.\26/
These are only a few examples of judicial greed and misconduct. Undoubtedly, there are other such cases permitted to occur due to lack of monitoring, oversight, and lawyer whistleblowing. Guardianship must not be used as a “profit center” for any person or entity!
Failure to Preserve (Conserve) Estate
The 2001 Wingspan Conference of professionals also produced a recommendation specifically mentioning conservation of assets.\27/ Recommendation No. 68 stated:
"…further study be conducted on the role and responsibilities of the lawyer for the fiduciary and his or her duty to a ward with regard to any fiduciary actions that could result in the diminution of the estate while the ward is still alive." (Emphasis added)
Since then, nothing has been done to assure conservation. Instead of conserving their wards’ property and assets, fiduciaries are still free to engage in defalcation or theft, or unnecessary and excessive billing, rubberstamped by judges.
In fact, the only persons indicating concern with conservation of the wards’ assets are the wards’ families. When families raise issues of breach of fiduciary duty, their motives and genuine concerns are often twisted by fiduciaries or courts who then unjustly accuse them of being “greedy children.” The negative labeling can be repeated throughout the proceedings, to intimidate the family into silence.
This failure to make prudent investments to conserve wards’ assets is not to meet the requirements of the Medicaid spend down, as fiduciaries may claim. Medicaid is not designed for the wealthy. It is a breach of fiduciary responsibility for fiduciaries to pauperize their wealthy wards (while unjustly enriching themselves) and then adding their now indigent wards to the Medicaid rolls. Yet this is a practice that is growing alarmingly, at the expense of the U.S. taxpayer.
Durable Powers of Attorney and Advance Directives
A frequent complaint of our members is that durable powers of attorney (which could and should preclude or overturn a guardianship) and other advance directives are frequently ignored. Either the issue is not raised by counsel and no evidentiary hearings are held regarding execution and validity, or the power is improperly revoked without due process of law. The guardianship continues - unlawfully – unbeknownst to unwary family members who are unfamiliar with law or unaware of their legal rights.
One such case came before the Senate Special Committee on Aging in 2003: the victim received no help and tragically died two years later. She suffered a premature and painful death by starvation and dehydration after a total of nearly five years of confinement in a nursing facility. She was cruelly isolated - alone, afraid, pleading to go home with her daughter, who was permitted visitation (under guard) only a few times over the long ordeal. The victim’s daughter tried everything in her power to protect her mother but was up against a cold, callous and uncaring system. The emotional scars will never heal. Finally, through the “kindness” of the guardian, she was allowed visitation just to see her mother die.
The management history of this case, and other similar cases, might reveal astounding aberrations, since one of the judges happened to be the Pennsylvania “Kids-for-Cash” judge, Michael T. Conahan. On March 26, 2009, the Supreme Court of Pennsylvania ruled that he and another judge had violated the constitutional rights of thousands of children, jailing them illegally in exchange for kickbacks from for-profit juvenile prison officials. He was indicted September 9, 2009 on federal racketeering charges,\28/ and we now learn of possible Mafia connections and a suspected long history of corruption. Have his adult guardianship cases (including the case mentioned above) been examined for such corruption and kickbacks? If not, why not?
Family First?
The family caregiver is the federal government’s first choice for manager (Representative Payee) of Social Security benefits.\29/
NASGA urges that the federal choice is correct and should set a standard for selection of guardian. We have found, however, that even if statutes do require family first, judges too often ignore them.
Many of the elderly and/or disabled victims of guardianship abuse have family members who are ready, willing and able to care for them. There are programs available for contributions to such family members for caregiving.
Family members most certainly know the person’s true wishes as a result of a lifetime of contact and caring; whereas, third-party fiduciaries - the judge’s choice - are total strangers who may have no concern for even the "best interests of the ward."
If the statutes suggest family as first choice and the courts just won’t allow it, Congress must ask, “Why?” It is quite obvious at this point - to us, at least: It’s all about money – the new “bread and butter” of the Elder Bar and other professionals and nonprofits tapping guardianship as a major profit source.
NASGA has documented the various modus operandi using in pushing through third-party guardianships, and this is one commonly used method: Practitioners dispose of their unwanted “competition” by viciously maligning family or friends applying for appointment, usually with false, conclusory allegations. This is where the “fairness” doctrine fails: picture family and friends sitting there in shock, hearing the lawyers attack them. No evidentiary hearings are convened; judges will give great deference to the lawyers’ unsupported hearsay arguments, accepting them as evidence, permitting the guardianships to proceed, undisturbed, with no regard for individual rights or judicial compliance with law.
NASGA recognizes the ugly fact that there are individuals who do engage in stealing from family, but the problem we're dealing with here is that ironically, the system then “protects” those victims by taking everything they have left, through means of the guardianship. Also, while there is rapid criminal treatment for individuals - and often restitution - that is not the case with most professionals.
Least Restrictive Alternative
In 2001, Wingspan recommended a statutory requirement that "guardianship petitions include a review of alternatives and a statement as to why none are appropriate," with the following comment: “Information should be available at the courthouse on each alternative, including mediation and counseling. The court visitor or other investigator should verify that available alternatives to guardianship have not been overlooked or underutilized."
Despite the requirement in most states for “least restrictive alternative” and the strong current trend for care at home, the statutory language is still usually too vague or too discretionary, thereby permitting judges to avoid compliance, despite the expressed desires of the ward. There is no question that the difference in cost to taxpayers is staggering, when the wards are on Medicaid.
Those initially appointed to report to the court are total strangers who provide their version of what is “best for the ward.” Their opinions are formed not through direct knowledge of the ward or the family unit, and too frequently are based on hearsay, misinformation and misperception. Here we must also question: What is their connection with and obligation to the judge or the other fiduciaries who will ultimately be appointed? We have seen appointment orders set in place even before an application is filed, clearly indicative of improper ex-parte communication.
In so many cases, guardians rush to sell their wards’ homes (placing them in nursing or other facilities), for no apparent reason other than to assure availability of funds for commissions or legal fee payment. When that happens, other persons living in the home and rendering care prior to an adjudication are callously evicted,becoming collateral victims as well, with no recourse whatever. These individuals, already stressed, now have to divide their attention to protecting themselves as well as their loved ones.
One of our California members told us how the sale of her father’s home affected him. Having been a sailor, he bought his home near the water, where he had a perfect view of the Golden Gate bridge. After his retirement, he watched the ships come and go, to his great pleasure every day. When his daughter finally lost her battle to save his home, he gave up and declined very quickly. They not only sold his home; they stole his view, and that is what his daughter claims killed him!
It is obvious to us that “family first” and “least restrictive alternative" requirements are too often treated as totally unimportant by some judges in their rush to rubberstamp their way through the guardianship process.
Transparency (Confidentiality)
Violations of law are enabled and/or encouraged by "confidentiality," whether confidentiality is permitted by statute or not.
Where is the critically needed transparency and accountability when many courts order confidentiality? Alarmingly, some states, such as Wisconsin, take sealing records to the extreme, sealing ALL guardianship records! Our members’ efforts at obtaining justice are stonewalled by sealed records, which enable wrongdoers when there is no chance for audit or review.
New York permits a judge to seal a case record under special circumstances:\30/
"The court shall not enter an order sealing the court records in a proceeding under this article, either in whole or in part, except upon a written finding of good cause which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interest of the public, the orderly and sound administration of justice, the nature of the proceedings, and the privacy of the person alleged to be incapacitated.”
But a law review article had this to say:\31/
"There is strong public interest in maintaining public access to all other portions of Article 81 files because of a history of court appointments of guardians through political patronage and of abuse of the position by some of those appointed."
Accountability - Futility of Appeal & Discipline Process
Families and friends of victims become victimized (and many are financially ruined) by unnecessary, extensive, and expensive appellate litigation due only to blatant failure of a lower court to obey the law! For others, the expense of an appeal is simply beyond their financial reach. These lower courts act with impunity, knowing that they will be protected at the appellate level or when faced with grievances in self-disciplining judicial review boards, many of which work in complete secrecy.
NASGA members have been told by court administrators to “take an appeal or file a grievance.” We have also seen grievances dismissed based on claims of “failure of appeal.” Neither of these “remedies” is a viable solution for the aged ward and the family which cannot afford the cost of an appeal.
In many states, the entire grievance procedure is veiled in secrecy and is too one sided to be of any real value. Many lawyers engaging in misconduct are protected by their colleagues in the disciplinary process, which has become quite politically oriented. The only time that system is reliable is when the media gets the story first! Even where there is no statutory confidentiality requirement on complainants, an agency can mislead and intimidate complainants into silence by simply placing the word "Confidential" on their correspondence.
The New York State Senate Judiciary Committee has recently convened a series of public hearings with the purpose of polling the public’s satisfaction or dissatisfaction with discipline of attorneys and judges. Several hearings have been held thus far and more are planned, due to long lists of citizens seeking to testify as to their dissatisfaction. The ABA conducts such hearings periodically.
Typical of our member complaints is the fact that their judicial grievances are summarily dismissed, without investigation.
New York's Judiciary Law, Art. 2-A, Sec. 44(1) mandates investigation, with one exception:
"Upon receipt of a complaint (a) the commission shall conduct an investigation of the complaint; or (b) the commission may dismiss the complaint if it determines that the complaint on its face lacks merit."
Statistics from New York's Commission on Judicial Conduct,\32\ reveal apparent misuse of their power and a clear failure to function in the public interest.
It is said that a picture is worth a thousand words. Below is a representation of a chart from the New York Commission on Judicial Conduct’s 2009 report (Appendix G), which presents a picture of the scales of "justice" - "out of balance!"
There were 1,923 complaints filed in 2008, with 1,661 of them "Dismissed on First Review or Preliminary Inquiry." Those dismissals represent 86.3754% of the total caseload. Only 262 of the total complaints filed (or 13.62%) were actually investigated; of those, 173 (or 66%), were dismissed. Not a pretty picture; is it?
Is it possible to believe that the 86% of uninvestigated cases which were dismissed, even if written by nonlawyers, failed to contain sufficient description, facts, detail or documentation to be "facially meritorious"?
Self-policing, as presently practiced, appears more like self-protection! Policing should be done by the public which votes for the judges.
_________________________
Footnotes:
12 YouTube, Puppets Acting Like People at a Court Hearing, http://www.youtube.com/watch?v=8vG_Dmtf9Gs
13 The Maine Public Broadcasting Network, Disabled and Elderly Advocates Hail New Criteria for Appointing Guardians, by Josie Huang (06/29/09) http://www.mpbn.net/News/MaineNews/tabid/181/ctl/ViewItem/mid/3475/ItemId/8097/Default.aspx
14 2001 WINGSPAN – THE SECOND NATIONAL GUARDIANSHIP CONFERENCE, Stetson Law Review, Vol.XXXI pp.595- 609, (2002) http://justice.law.stetson.edu/lawrev/abstracts/PDF/31-3Recommendations.pdf
15 Court of Appeals, Stark County, Ohio, Fifth Appellate District, In re Guardianship of Vanko, 2006-Ohio-4068. http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2006/2006-Ohio-4068.pdf
16 7 CJS Sec. 3, Attorney and Client - "An attorney's first duty is to the court. The attorney assumed his or her obligation toward it before ever having a client."
17 Wall Street Journal, He Fought the Tort Bar -- and Won, by Kimberley A. Strassel (05/04/09) http://online.wsj.com/article/SB124121851177078835.html
18 New York Daily News, COURT PATRONAGE RAPPED State Faults Dozen-Plus Judges And Lawyers, by Joe Calderone and Thomas Zambito, (12/04/01) http://www.nydailynews.com/archives/news/2001/12/04/2001-12-04_court_patronage_rapped_state.html
19 New York Daily News, SENIORS TAKEN FOR MILLIONS - Lawyers Rack Up Fat Fees For Guardians For The Helpless, by Thomas Zambito, Russ Buettner and Joe Calderone, (05/20/01)
http://www.nydailynews.com/archives/news/2001/05/20/2001-05-20_senior_taken_for_millions_la.html
20 Joplin Globe, Class-Action Lawsuit Filed Against Public Administrator, by Debby Woodin (07/30/08) http://www.joplinglobe.com/siteSearch/apstorysection/local_story_212225146.html
21 WNBC-TV, Who's Guarding the Guardians?, reported by Tim Minton and produced by Ronnie Rothbart, (Apr. 2001) (Not presently available on line)
23 New York Times, State Panel Censures Judge for the 2nd Time in 2 Years, by Andy Newman (04/08/05) http://www.nytimes.com/2005/04/08/nyregion/08judge.html
24 The Dallas Morning News, People Appointed By Probate Court Judge Turn Up On Woman’s Will, by Kevin Krause and Brandon Formby (11/16/06)
http://www.dentonrc.com/sharedcontent/dws/drc/localnews/stories/DRC_Concerns_arise_over.42423646.html
25 New Times, Lawsuit: ‘'Rank Greed” Led Judge Seidlin To Exploit Elderly Widow, by Bob Norman (06/17/09) http://blogs.browardpalmbeach.com/pulp/2009/06/judge_larry_seidlin_civil_lawsuit.php
26 Miami Herald, Lawsuit Against Ex-Judge Seidlin Expanded, by Robert Nolan (11/21/09) http://www.miamiherald.com/news/broward/story/1344946.html
27 Stetson Law Review Vol. XXXI pp. 595-609, (2002) http://justice.law.stetson.edu/lawrev/abstracts/PDF/31-3Recommendations.pdf
28 The Boston Globe, Ex-Pa. Judges Indicted in Fraud Scheme, by Michael Rubinkam, Associated Press (09/10/09) http://www.boston.com/news/nation/articles/2009/09/10/ex_pa_judges_indicted_in_fraud_
scheme/?p1=Well_MostPop_Emailed7i
29 Representative Payee Program http://www.ssa.gov/payee
30 New York State Mental Hygiene Law 81.14(b) http://law.justia.com/newyork/codes/mental-hygiene/mhy081.14_81.14.html
31 Albany Law Review, Vol. 66, Pp. 1089-1123, Public Access To Court Records In New York: The Experience Under Uniform Rule 216.1 And The Rule’s Future In A World Of Electronic Filing, by George F. Carpinello (2003) http://www.albanylawreview.org/archives/66/4/PublicAccesstoCourtRecordsinNewYork-TheExperienceUnderUniformRule2161andtheRulesFutureinaWorldofElectronicFiling.pdf
32 http://www.scjc.state.ny.us/Publications/nyscjc.2009annualreport.pdf
Rights violations and lack of due process are two of the major complaints of NASGA concerning guardianship as practiced today.
At best, some guardianship proceedings have an air of propriety; at worst, many are outrageous charades\12/ of "justice" under color of law. These proceedings are not supposed to be adversarial, yet they become such, because of present noncompliance with and misuse of the state protective statutes, allowed by the courts.
A common complaint of our members is that they are deprived/denied access to all court filings, particularly those of a financial nature; i.e. accountings and legal fee billings and applications. Due to claims of “privacy,” they are deprived of information concerning the ward’s status.
There is overwhelming evidence of noncompliance with federal and state law in court cases which we have reviewed. Lack of due process permits the professional “feeding frenzy” which has evolved from misuse and misapplication of laws designed to “protect” and “conserve.” One must wonder why a judge would knowingly violate the law and issue unauthorized and improper adjudications. The only answer: The judge must either be incompetent or corrupt - is there a quid pro quo. Their knowing, willful and deliberate violation of law is shocking and inexcusable.
As a rule, the general evidentiary standard in guardianship is “clear and convincing,” which is rarely met because of a general lack of due process.
Maine has recently elevated their standard from "preponderance of the evidence” to "clear and convincing," \13/ a benefit to wards and their families in that state.
Labeling
Over time, states have expanded their classification for guardianship, apparently casting a wider net by lowering their criteria from "incompetent" to "incapacitated," thus causing guardianship in inappropriate situations. This change in one word can result in an avalanche of unnecessary guardianships of Baby Boomers.
Watchdog Agencies
We are told to report abuse to an APS/DCF-type agency, but many times these agencies do more harm than good. Many proceedings begin as a result of unfounded or false claims of abuse made to agencies against family members who are unable to defend themselves because the filer’s identity is kept confidential, preventing challenge. The problems are similar to those confronted by parents in custody cases - a failure of due process preventing a meaningful defense. Family members can be wrongly labeled as elder abusers or exploiters; and because they are not given the opportunity to face their accusers and defend themselves, they are disadvantaged in court throughout the length of the proceedings and never recover from the unjust stigma.
In a case involving a Florida member, DCF closed a complaint filed against her, but the probate judge continued to copy the original false allegations into subsequent orders – actually going so far as to include them on an order appointing her (the alleged “abuser”) as a guardian of the person, three years later.
“Emergency” (Temporary) Guardianship
An alarming and growing new threat to life, liberty and property rights of the vulnerable elderly and disabled is the phenomenon of the “emergency” or (temporary) guardianship.
The “emergency” conditions can be merely suggested in petitioning by anyone, including APS-type agencies, hospitals, or other health care practitioners, without supporting evidence, and the temporary guardianship put in place without the knowledge – or immediate knowledge - of the AIP or family.
Lack of due process in these temporary proceedings were already a topic of alarm as far back as the 2001 Wingspan Conference,\14/ which produced 68 adopted recommendations, No. 34 of which states:
"Emergency proceedings require the following: actual notice to the respondent before hearing; mandatory appointment of counsel; establishment of the respondent’s emergency; conduct of a hearing on the permanent guardianship as promptly as possible; and placement of limitations on emergency powers.
"Guardianships be limited to the circumstances giving rise to the petition for emergency or temporary guardianship, and be terminated upon appropriate showing that the emergency no longer exists." (Emphasis added)
In Madison County, Illinois, a guardianship of a patient was petitioned for by an elder abuse case manager employed by Visiting Nurses Association. The petitioner actually named the person - Sharon Mehrtens - whom she wished to be appointed as guardian. We must immediately question: what was the nature of the existing relationship between those two individuals?
On the day of submission, the judge treated the petition as an emergency, but the purported medical report was not to be found in the record. (Omission of documents from the record is a common complaint of our members.) There was no notice of hearing to anyone, including the AIP. Six days after the adjudication, verbal "notice" was given to the ward’s wife by the appointed guardian, Sharon Mehrtens. The ward’s wife reports she responded to Mehrtens’ announcement by informing her that she had her husband’s power of attorney, to which Mehrtens responded, “Guardianship trumps power of attorney!”
The reverse is true: assuming capacity, properly executed advance directives obviate the need for guardianship. Advance directives specify the AIP's wishes; courts cannot simply disregard them and take control unlawfully.
Without any proper service on the ward’s wife, Mehrtens made demands on her in an attempt to take control of all marital assets and a safe deposit box. She then quickly applied herself to selling the family residence, only to learn that it was a rental!
Another interesting feature of this "guardianship" was that the record shows service on the AIP at a facility where he was never in residence. This farcical case ended before there could be a hearing on permanent guardianship, due to the ward’s death. More problematic in these instances is that lack of filing of petition and notice of petition, with proof of service necessary for jurisdictional purposes, prevents appeal.
Patronage and Conflicts of Interest
Despite disclosure long ago of a patronage (favoritism/cronyism) problem (and the suspected problem of judicial quid pro quo's), these issues will not be resolved without a major cleanup of guardianship practices, through proper monitoring, oversight, enforcement and penalties. In some ways, guardianships have grown to resemble extensive and highly organized racketeering operations. Colleagues and others, appointed through patronage, have been found to work together in petitioning for and being appointed in various categories in a guardianship; then switching roles on the next case, like the child’s game of “Musical Chairs.” A member has referred to this circular type of operation as "The Incest Club."
An Ohio court rendered the same comparison:
“We agree Trillium has created an unpleasant, incestuous situation where the same agency does the initial investigation into whether a person needs a guardian, and then applies to be the guardian, garnering fees..."\15/
With patronage still in place and groups of common players changing roles, where is the meaningful representation for AIPs when their attorneys are court-appointed and "an attorney's first loyalty is to the court"?\16/
Some state statutes provide for appointment of counsel, some do not; others make it discretionary. Who, more than an AIP, needs assistance of counsel - meaningful counsel - not just assigned counsel (who is usually one of the regular guardianship players/ practitioners with allegiance to the court)?
In 2001, one of the Wingspan "due process" recommendations was that: "Counsel always be appointed for the respondent and act as an advocate rather than as a guardian ad litem.”
However, the problem of rotating "team players" still exists, resulting in ineffective assistance of counsel.
Fraud
NASGA has become aware of abusive use of the proceedings among our member cases in addition to conversion by fiduciaries. These abuses involve below-market real estate deals to insiders; fiduciary appointment of a court clerk (or a judicial family member); tampering/rewriting of trust documents; rewriting of Wills; missing personal property; omissions of real property, stocks and bonds and other assets from inventories and accountings; and/or unfiled inventories and reports.
Conduct of a fiduciary was described in Meinhard v. Salmon, 249 N.Y. 458 (1928):
“Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior." Meinhard at 464.
Conversion of assets is an immensely lucrative opportunity for unjust personal enrichment in a feeding frenzy of professionals, nursing facility operators, nonprofits and others. The lack of adequate controls are an incentive, permitting - perhaps even encouraging - financial abuse.
Although in an unrelated area of law, there is a similarity in a report of a major tort scam involving a company CEO (a lawyer himself) who exposed a mob of lawyers and doctors fabricating tort cases. Texas federal judge Janice Graham Jack – who was overseeing 9,000 silicosis lawsuits aggregated in her court - issued an opinion that shook the tort bar to its core. During depositions, the handful of doctors who provided nearly all these diagnoses began to crack, admitting they'd never seen patients, that their secretaries had filled out forms, and that lawyers had told them what to write. Her scathing opinion unraveled a scam of giant proportions. She accused the doctors and lawyers of "diagnoses that were manufactured for money."\17/
The article goes on to say: “Within a few months, Congress and a federal grand jury were investigating. For U.S. Silica, named in nearly every suit, it was a fairy tale end to a nightmare. Even Mr. Ulizio, the CEO, was shocked. “It was like, 'Oh my God, finally, after all these years, somebody is seeing the truth.'" In similar fashion, guardianship adjudications are often made on untested medical reports. Too often, specific statutory reporting requirements are unmet by medical professionals and ignored by court and counsel; or the statutes may be ambiguous in that area. The right to cross-examination is simply overlooked, and papers are accepted on their face, in violation of the prospective ward's rights.
WE NEED A “FAIRY TALE END” TO THE GUARDIANSHIP NIGHTMARE!
Overbilling and Exploitation
Unfortunately, the motivation for guardianship in many cases is simply greed, masked by the repetitive phrase, “best interests of the ward.” The judge does not disagree. In too many cases, “best interests” turn out to be those of the fiduciaries; not the ward.
The New York Daily News ran a series in 2001 titled “Milking the Helpless.” One of the articles detailed case after case of politically connected lawyers fleecing the assets of nursing facility residents through inappropriate and exorbitant billings.\18/
"[E]specially in cases where the ward had sizable assets, lawyers were more apt to bill for mundane tasks...judges rarely lowered the bills and frequently skirted court rules limiting the number of appointments to no more than one per year that would pay more than $5,000.”
Lack of monitoring permitted fiduciaries to bill and receive fees in excess of the allowable $5,000 annual cap.
Some attorneys acting as guardians or conservators bill at high hourly rates for purported “legal” work which is nothing more than an ordinary and expected part of their fiduciary duties. This work is often clerical in nature and much is actually performed by paralegals or other support staff. One case record which was reviewed included 81 pages of such excess billing by an attorney guardian. A member complained that she was charged legal fees on an hourly basis for leaving a short telephone message, part of the function of a guardian - not to be billed as legal fees. Likewise, office overhead expenses, such as photocopying should not be charged, but is rubberstamped by a careless, non-caring or corrupt judge. These are examples of blatant overbilling.\19/
In Missouri, R. Lynn Myers, an attorney who brought a class action against the Public Administrator, showed how the Public Guardian was found to be double dipping:
‘“Under Missouri law, public administrators generally are allowed to either collect a salary or charge fees for services, but not both, though there are certain exceptions. The law does allow some special fees to be charged by salaried administrators for things such as attorney bills,’ he said. He also believes there must be a contract in place that specifies the services and fees to be charged.
‘“I think you have to establish the standards the public administrator can use to charge clients,’ he said. ‘The administrator is there to be the safety net. They’re there to catch those without families or the indigent, and the service should not be used as a profit center for county operations,’ he said." \20/
NASGA members also report that their loved ones have had to pay excessive legal fees due to the practice of lawyers serving as guardians and then hiring additional lawyers; and even guardians' lawyers hiring more lawyers. This is unnecessary double billing when the guardian is a lawyer, and appointed based on his/her qualifications. The result is increased unjust enrichment for the fiduciaries and
even swifter depletion of the wards’ assets, especially in very large estates.
Many judges rubberstamp fee applications without challenge. In April of 2001,WNBC-TV aired an investigative report\21/ that exposed the corrupt practices in the courtroom of Acting Supreme Court Judge Diane A. Lebedeff, who handled 60% of the guardian caseload in New York County. The fiduciaries appointed by her in the "Dr. Murphy" (not his real name) "grannynapping" case were her colleagues in the New York County Lawyers Association – and all engaged in a feeding frenzy.
One lawyer, Steven Shapiro, was first appointed as court evaluator; he submitted no report! Another lawyer, Michael Miller, was appointed counsel to the AIP. There was no hearing because the AIP consented to the guardianship. Shapiro was then appointed co-guardian of the person and of the property when the judge deemed the matter an emergency. In fact, the record indicates that there was an 11-day overlapping period when Shapiro held both posts. His appointment was changed again to sole guardian of the property.
Shapiro then retained Miller (who had been counsel to the AIP), to "advise him concerning MHL 81 procedure"; this, despite Shapiro's prior appointments as a guardian in other cases. Is it not safe to assume that a guardian - a lawyer, in fact - is appointed because of and for his particular knowledge of the law and familiarity with guardian procedure? According to the record, Lebedeff found no conflict with Miller first appearing as counsel to the AIP and then as counsel to the IP's guardian!
Shapiro, during the proceedings before Lebedeff, retained a total of three other lawyers – all feeding at the trough. Why? Because the ward was originally thought to have had an estate of $72 million, which was later learned to be more like $140 million. In the first 15-month period, the four lawyers had aggregated $492,000 in billings. This was just part of the fee billings in this case.
At one point, Shapiro submitted, as part of a fee bill, an item for a 42-hour day.
The fee for that 42-hour day? $12,600.00. After it was exposed, he claimed it was a clerical error, but the judge had already rubberstamped her approval. Shapiro was later found to have written himself in as a trustee of a trust in the estate. The ward, having previously consented to the guardianship, then sought to have Shapiro removed. He later resigned or was forced to resign. Miller also resigned.
Lebedeff recused herself, and was subsequently demoted to a lower court where she would not be handling guardianships. A member who interviewed Steven Singer, former head of the Guardian Support Unit in New York County, learned that this judge had completely bypassed his unit’s support services, pursuing her own agenda instead. Another judge took over, held a hearing and ordered some of the fees to be repaid. He suggested that the entire proceeding had been a perversion.
In another case, Lebedeff was censured for using her fiduciary appointment powers as her personal piggy bank: paying off her own accountant by giving her fiduciary appointments.
She was censured for a second time in two years by state judicial authorities, who said that she should not have presided over a lawsuit filed by one of her friends.
She also gave court appointments worth more than $84,000 to the friend, a lawyer, while presiding over his personal injury suit.\23/
And who was the friend? Ravi Batra - a political powerhouse. Judges who controlled court appointments where lawyers typically managed the assets and welfare of the elderly, the young or of troubled companies, gave him 150 of these worth more than $500,000 in fees. (This is beyond mere patronage.)
A Texas probate court judge, Don Windle, placed two sisters under guardianship, moved them to a nursing facility, and then restricted access to them. Within a year, one sister died and the second rewrote her will – with the help of her court-appointed guardian. Four years later, upon her death, the second sister’s will revealed shocking contents: among the beneficiaries of approximately $250,000were the judge, the court-appointed guardian, the court-appointed attorney, and a friend of the judge’s who was also his personal accountant (as in the above case) and the court-appointed guardian of the estate. These same people were among a small group of lawyers and other professionals whom Windle repeatedly tapped for work in his court over the years.\24/ Windle remains on the bench.
Another stunning case of a judge who lost his moral compass: Less than a month after Florida ended an elderly-abuse investigation and found no wrongdoing in a judge's relationship with a wealthy bed-ridden neighbor, a suit was filed on her behalf, accusing Broward County Judge Larry Seidlin (the famous “weeping judge” in the Anna Nicole Smith case) and members of his family, of extortion, civil conspiracy, conversion, unjust enrichment and breach of fiduciary duty.\25/
An amended complaint has recently been filed, naming an accountant and three lawyers as additional defendants.\26/
These are only a few examples of judicial greed and misconduct. Undoubtedly, there are other such cases permitted to occur due to lack of monitoring, oversight, and lawyer whistleblowing. Guardianship must not be used as a “profit center” for any person or entity!
Failure to Preserve (Conserve) Estate
The 2001 Wingspan Conference of professionals also produced a recommendation specifically mentioning conservation of assets.\27/ Recommendation No. 68 stated:
"…further study be conducted on the role and responsibilities of the lawyer for the fiduciary and his or her duty to a ward with regard to any fiduciary actions that could result in the diminution of the estate while the ward is still alive." (Emphasis added)
Since then, nothing has been done to assure conservation. Instead of conserving their wards’ property and assets, fiduciaries are still free to engage in defalcation or theft, or unnecessary and excessive billing, rubberstamped by judges.
In fact, the only persons indicating concern with conservation of the wards’ assets are the wards’ families. When families raise issues of breach of fiduciary duty, their motives and genuine concerns are often twisted by fiduciaries or courts who then unjustly accuse them of being “greedy children.” The negative labeling can be repeated throughout the proceedings, to intimidate the family into silence.
This failure to make prudent investments to conserve wards’ assets is not to meet the requirements of the Medicaid spend down, as fiduciaries may claim. Medicaid is not designed for the wealthy. It is a breach of fiduciary responsibility for fiduciaries to pauperize their wealthy wards (while unjustly enriching themselves) and then adding their now indigent wards to the Medicaid rolls. Yet this is a practice that is growing alarmingly, at the expense of the U.S. taxpayer.
Durable Powers of Attorney and Advance Directives
A frequent complaint of our members is that durable powers of attorney (which could and should preclude or overturn a guardianship) and other advance directives are frequently ignored. Either the issue is not raised by counsel and no evidentiary hearings are held regarding execution and validity, or the power is improperly revoked without due process of law. The guardianship continues - unlawfully – unbeknownst to unwary family members who are unfamiliar with law or unaware of their legal rights.
One such case came before the Senate Special Committee on Aging in 2003: the victim received no help and tragically died two years later. She suffered a premature and painful death by starvation and dehydration after a total of nearly five years of confinement in a nursing facility. She was cruelly isolated - alone, afraid, pleading to go home with her daughter, who was permitted visitation (under guard) only a few times over the long ordeal. The victim’s daughter tried everything in her power to protect her mother but was up against a cold, callous and uncaring system. The emotional scars will never heal. Finally, through the “kindness” of the guardian, she was allowed visitation just to see her mother die.
The management history of this case, and other similar cases, might reveal astounding aberrations, since one of the judges happened to be the Pennsylvania “Kids-for-Cash” judge, Michael T. Conahan. On March 26, 2009, the Supreme Court of Pennsylvania ruled that he and another judge had violated the constitutional rights of thousands of children, jailing them illegally in exchange for kickbacks from for-profit juvenile prison officials. He was indicted September 9, 2009 on federal racketeering charges,\28/ and we now learn of possible Mafia connections and a suspected long history of corruption. Have his adult guardianship cases (including the case mentioned above) been examined for such corruption and kickbacks? If not, why not?
Family First?
The family caregiver is the federal government’s first choice for manager (Representative Payee) of Social Security benefits.\29/
NASGA urges that the federal choice is correct and should set a standard for selection of guardian. We have found, however, that even if statutes do require family first, judges too often ignore them.
Many of the elderly and/or disabled victims of guardianship abuse have family members who are ready, willing and able to care for them. There are programs available for contributions to such family members for caregiving.
Family members most certainly know the person’s true wishes as a result of a lifetime of contact and caring; whereas, third-party fiduciaries - the judge’s choice - are total strangers who may have no concern for even the "best interests of the ward."
If the statutes suggest family as first choice and the courts just won’t allow it, Congress must ask, “Why?” It is quite obvious at this point - to us, at least: It’s all about money – the new “bread and butter” of the Elder Bar and other professionals and nonprofits tapping guardianship as a major profit source.
NASGA has documented the various modus operandi using in pushing through third-party guardianships, and this is one commonly used method: Practitioners dispose of their unwanted “competition” by viciously maligning family or friends applying for appointment, usually with false, conclusory allegations. This is where the “fairness” doctrine fails: picture family and friends sitting there in shock, hearing the lawyers attack them. No evidentiary hearings are convened; judges will give great deference to the lawyers’ unsupported hearsay arguments, accepting them as evidence, permitting the guardianships to proceed, undisturbed, with no regard for individual rights or judicial compliance with law.
NASGA recognizes the ugly fact that there are individuals who do engage in stealing from family, but the problem we're dealing with here is that ironically, the system then “protects” those victims by taking everything they have left, through means of the guardianship. Also, while there is rapid criminal treatment for individuals - and often restitution - that is not the case with most professionals.
Least Restrictive Alternative
In 2001, Wingspan recommended a statutory requirement that "guardianship petitions include a review of alternatives and a statement as to why none are appropriate," with the following comment: “Information should be available at the courthouse on each alternative, including mediation and counseling. The court visitor or other investigator should verify that available alternatives to guardianship have not been overlooked or underutilized."
Despite the requirement in most states for “least restrictive alternative” and the strong current trend for care at home, the statutory language is still usually too vague or too discretionary, thereby permitting judges to avoid compliance, despite the expressed desires of the ward. There is no question that the difference in cost to taxpayers is staggering, when the wards are on Medicaid.
Those initially appointed to report to the court are total strangers who provide their version of what is “best for the ward.” Their opinions are formed not through direct knowledge of the ward or the family unit, and too frequently are based on hearsay, misinformation and misperception. Here we must also question: What is their connection with and obligation to the judge or the other fiduciaries who will ultimately be appointed? We have seen appointment orders set in place even before an application is filed, clearly indicative of improper ex-parte communication.
In so many cases, guardians rush to sell their wards’ homes (placing them in nursing or other facilities), for no apparent reason other than to assure availability of funds for commissions or legal fee payment. When that happens, other persons living in the home and rendering care prior to an adjudication are callously evicted,becoming collateral victims as well, with no recourse whatever. These individuals, already stressed, now have to divide their attention to protecting themselves as well as their loved ones.
One of our California members told us how the sale of her father’s home affected him. Having been a sailor, he bought his home near the water, where he had a perfect view of the Golden Gate bridge. After his retirement, he watched the ships come and go, to his great pleasure every day. When his daughter finally lost her battle to save his home, he gave up and declined very quickly. They not only sold his home; they stole his view, and that is what his daughter claims killed him!
It is obvious to us that “family first” and “least restrictive alternative" requirements are too often treated as totally unimportant by some judges in their rush to rubberstamp their way through the guardianship process.
Transparency (Confidentiality)
Violations of law are enabled and/or encouraged by "confidentiality," whether confidentiality is permitted by statute or not.
Where is the critically needed transparency and accountability when many courts order confidentiality? Alarmingly, some states, such as Wisconsin, take sealing records to the extreme, sealing ALL guardianship records! Our members’ efforts at obtaining justice are stonewalled by sealed records, which enable wrongdoers when there is no chance for audit or review.
New York permits a judge to seal a case record under special circumstances:\30/
"The court shall not enter an order sealing the court records in a proceeding under this article, either in whole or in part, except upon a written finding of good cause which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interest of the public, the orderly and sound administration of justice, the nature of the proceedings, and the privacy of the person alleged to be incapacitated.”
But a law review article had this to say:\31/
"There is strong public interest in maintaining public access to all other portions of Article 81 files because of a history of court appointments of guardians through political patronage and of abuse of the position by some of those appointed."
Accountability - Futility of Appeal & Discipline Process
Families and friends of victims become victimized (and many are financially ruined) by unnecessary, extensive, and expensive appellate litigation due only to blatant failure of a lower court to obey the law! For others, the expense of an appeal is simply beyond their financial reach. These lower courts act with impunity, knowing that they will be protected at the appellate level or when faced with grievances in self-disciplining judicial review boards, many of which work in complete secrecy.
NASGA members have been told by court administrators to “take an appeal or file a grievance.” We have also seen grievances dismissed based on claims of “failure of appeal.” Neither of these “remedies” is a viable solution for the aged ward and the family which cannot afford the cost of an appeal.
In many states, the entire grievance procedure is veiled in secrecy and is too one sided to be of any real value. Many lawyers engaging in misconduct are protected by their colleagues in the disciplinary process, which has become quite politically oriented. The only time that system is reliable is when the media gets the story first! Even where there is no statutory confidentiality requirement on complainants, an agency can mislead and intimidate complainants into silence by simply placing the word "Confidential" on their correspondence.
The New York State Senate Judiciary Committee has recently convened a series of public hearings with the purpose of polling the public’s satisfaction or dissatisfaction with discipline of attorneys and judges. Several hearings have been held thus far and more are planned, due to long lists of citizens seeking to testify as to their dissatisfaction. The ABA conducts such hearings periodically.
Typical of our member complaints is the fact that their judicial grievances are summarily dismissed, without investigation.
New York's Judiciary Law, Art. 2-A, Sec. 44(1) mandates investigation, with one exception:
"Upon receipt of a complaint (a) the commission shall conduct an investigation of the complaint; or (b) the commission may dismiss the complaint if it determines that the complaint on its face lacks merit."
Statistics from New York's Commission on Judicial Conduct,\32\ reveal apparent misuse of their power and a clear failure to function in the public interest.
It is said that a picture is worth a thousand words. Below is a representation of a chart from the New York Commission on Judicial Conduct’s 2009 report (Appendix G), which presents a picture of the scales of "justice" - "out of balance!"
There were 1,923 complaints filed in 2008, with 1,661 of them "Dismissed on First Review or Preliminary Inquiry." Those dismissals represent 86.3754% of the total caseload. Only 262 of the total complaints filed (or 13.62%) were actually investigated; of those, 173 (or 66%), were dismissed. Not a pretty picture; is it?
Is it possible to believe that the 86% of uninvestigated cases which were dismissed, even if written by nonlawyers, failed to contain sufficient description, facts, detail or documentation to be "facially meritorious"?
Self-policing, as presently practiced, appears more like self-protection! Policing should be done by the public which votes for the judges.
_________________________
Footnotes:
12 YouTube, Puppets Acting Like People at a Court Hearing, http://www.youtube.com/watch?v=8vG_Dmtf9Gs
13 The Maine Public Broadcasting Network, Disabled and Elderly Advocates Hail New Criteria for Appointing Guardians, by Josie Huang (06/29/09) http://www.mpbn.net/News/MaineNews/tabid/181/ctl/ViewItem/mid/3475/ItemId/8097/Default.aspx
14 2001 WINGSPAN – THE SECOND NATIONAL GUARDIANSHIP CONFERENCE, Stetson Law Review, Vol.XXXI pp.595- 609, (2002) http://justice.law.stetson.edu/lawrev/abstracts/PDF/31-3Recommendations.pdf
15 Court of Appeals, Stark County, Ohio, Fifth Appellate District, In re Guardianship of Vanko, 2006-Ohio-4068. http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2006/2006-Ohio-4068.pdf
16 7 CJS Sec. 3, Attorney and Client - "An attorney's first duty is to the court. The attorney assumed his or her obligation toward it before ever having a client."
17 Wall Street Journal, He Fought the Tort Bar -- and Won, by Kimberley A. Strassel (05/04/09) http://online.wsj.com/article/SB124121851177078835.html
18 New York Daily News, COURT PATRONAGE RAPPED State Faults Dozen-Plus Judges And Lawyers, by Joe Calderone and Thomas Zambito, (12/04/01) http://www.nydailynews.com/archives/news/2001/12/04/2001-12-04_court_patronage_rapped_state.html
19 New York Daily News, SENIORS TAKEN FOR MILLIONS - Lawyers Rack Up Fat Fees For Guardians For The Helpless, by Thomas Zambito, Russ Buettner and Joe Calderone, (05/20/01)
http://www.nydailynews.com/archives/news/2001/05/20/2001-05-20_senior_taken_for_millions_la.html
20 Joplin Globe, Class-Action Lawsuit Filed Against Public Administrator, by Debby Woodin (07/30/08) http://www.joplinglobe.com/siteSearch/apstorysection/local_story_212225146.html
21 WNBC-TV, Who's Guarding the Guardians?, reported by Tim Minton and produced by Ronnie Rothbart, (Apr. 2001) (Not presently available on line)
23 New York Times, State Panel Censures Judge for the 2nd Time in 2 Years, by Andy Newman (04/08/05) http://www.nytimes.com/2005/04/08/nyregion/08judge.html
24 The Dallas Morning News, People Appointed By Probate Court Judge Turn Up On Woman’s Will, by Kevin Krause and Brandon Formby (11/16/06)
http://www.dentonrc.com/sharedcontent/dws/drc/localnews/stories/DRC_Concerns_arise_over.42423646.html
25 New Times, Lawsuit: ‘'Rank Greed” Led Judge Seidlin To Exploit Elderly Widow, by Bob Norman (06/17/09) http://blogs.browardpalmbeach.com/pulp/2009/06/judge_larry_seidlin_civil_lawsuit.php
26 Miami Herald, Lawsuit Against Ex-Judge Seidlin Expanded, by Robert Nolan (11/21/09) http://www.miamiherald.com/news/broward/story/1344946.html
27 Stetson Law Review Vol. XXXI pp. 595-609, (2002) http://justice.law.stetson.edu/lawrev/abstracts/PDF/31-3Recommendations.pdf
28 The Boston Globe, Ex-Pa. Judges Indicted in Fraud Scheme, by Michael Rubinkam, Associated Press (09/10/09) http://www.boston.com/news/nation/articles/2009/09/10/ex_pa_judges_indicted_in_fraud_
scheme/?p1=Well_MostPop_Emailed7i
29 Representative Payee Program http://www.ssa.gov/payee
30 New York State Mental Hygiene Law 81.14(b) http://law.justia.com/newyork/codes/mental-hygiene/mhy081.14_81.14.html
31 Albany Law Review, Vol. 66, Pp. 1089-1123, Public Access To Court Records In New York: The Experience Under Uniform Rule 216.1 And The Rule’s Future In A World Of Electronic Filing, by George F. Carpinello (2003) http://www.albanylawreview.org/archives/66/4/PublicAccesstoCourtRecordsinNewYork-TheExperienceUnderUniformRule2161andtheRulesFutureinaWorldofElectronicFiling.pdf
32 http://www.scjc.state.ny.us/Publications/nyscjc.2009annualreport.pdf