WANDERING OFF TOPIC

This is as off-topic as all hell, but since we’re in the midst of a veritable orgy of ‘outing male sexist pigs,’ of various degrees of celebrity and malfeasance, I think it bears mention:

I’m pretty old, and out of touch with current sexual mores, but even I know the difference between a rapist and a person who fondles a female butt without permission. The first one is Bill Cosby; the second is the entire male population of Italy.

We have the appalling leadership we have now, in very large part, because of a wide-spread revulsion – mostly by men who haven’t raped anybody –against self-promoters who blow up small insults into major atrocities, solely for their own benefit. We learn nothing, and we sit through the same classes over and over again. And cui bono, to use everyone’s favorite latin phrase.

We had the McMartin Pre-School hysteria in the 80’s. A few children were doubtless saved because symptoms were noticed; but so many innocent people were destroyed because ruthless prosecutors, out to make a reputation, railroaded them into jail. We had the astonishing phenomena of 16 year old boys listed as sex offenders for life because they were caught diddling their 14 year old girl friends by enraged parents.

We’re so much smarter now, eh?

This will pass. It always does, but while the madness persists a lot of people are going to do felony time for misdemeanors. We are the descendants, all of us, of men somewhere in the blood line who grabbed a knee or a thigh without asking for written permission, and a release, first.

We live in a time of madness. But everyone thinks that, in every era, and they’re always right.

Here’s literal madness for you. Schizophrenia. Schizo affective disorder. Its everywhere, coming soon to your neighborhood. A Guardianship petition is filed; the Alleged Incapacitated Person has been hoarding for decades, his entire floor of the apartment building reeks of feces, or urine, the neighbors smell it coming through their walls or floors, or he or she boils pots of water relentlessly, causing alarm that the entire place could burn down.

Adult protective services intervenes. They interview, cajole, sometimes do an industrial cleaning. But a schizophrenic thinks he’s right; he isn’t doing this to be mean. The ton or so of plastic bags piled everywhere, including wet smelly garbage, are all cherished possessions. Don’t touch my stuff. The landlord wants his rent, or maybe he doesn’t care anymore about the money. He wonders why he has to put up with it, as do his other tenants. A few landlords even (gasp!) care a great deal about the well-being of the schizophrenic tenant, who used to be sane, and a really nice guy, but the progressive nature of this cruel disease has brought things to a head. Something must be done.

So, last resort, the City brings on a petition. It has a return date. The brave Mental Hygiene Lawyer [three cheers by the way; they’re state employees we should all be proud of, and it is frequently a very unpleasant job] treks out to the filthy, reeking apartment, interviews the AIP, and reports that he/she is perfectly lucid – well, lucid enough — and can participate in the hearing. Damn straight he understands what’s going on. As his lawyer I can’t waive his appearance, Your Honor.

The Judge, with staff and court reporter, head out to the apartment, knock on the door, and the AIP refuses to let them in, in spite of the Court’s best efforts, dignified pleading and begging. What to do?

The law says they are entitled to participate in their own hearing. This is a serious deprivation of rights we’re talking about here.

What do Judges do? Mostly, they call it a day. They tried. They aren’t going to get the marshal to break down the door, or drag the AIP into Court. Most of them won’t bother going out to the apartment at all. They’ll give the AIP a few chances to come in, and after it’s clear that they’re not coming, the show must go on. And so it does.

Or maybe they show up. And then the new fun begins, because the Guardian – typically a non-profit agency that contracts with the City- has to try to get cooperation. More industrial cleanings, more Housing Court. Sometimes it works. More often, they are evicted anyway, sometimes right away, sometimes after a decade. In the best cases, the place stays just clean enough, and they live out their lives unmolested by demons in their apartments and breath their last in a nursing home. This happens sometimes. Not a lot.

No. We don’t do schizophrenia well. We don’t handle these cases well from beginning to end. It’s almost impossible to see how we could, if the AIP is truly determined to resist, and many of them are. And quite a few are very intelligent to boot. Mostly it happens because they won’t take their meds, which sometimes would end the problem by itself.

The latest trend concerns jury demands. The Court system in this year 2017, if you haven’t noticed, is thoroughly crappy and inefficient in delivering jury trials to all of the civil cases pending in the system, in which the parties truly want one. Many have been voting with their feet, fleeing to mediation services, which is a topic for another day. We’re not any better in delivering guardianship jury trials. Now, all of a sudden, AIPs are demanding juries, which is their right [it’s printed in BIG TYPE on the petition].

Many mentally ill AIPs are unable to control themselves in front of juries. Query whether a person whose mental illness prevents them from preserving their dignity in front of the trier of facts is truly getting a fair trial. Isn’t there an analogy here to not providing a physically handicapped, say a deaf person, with the resources needed to participate? Except there are no such resources known to current science to assist schizophrenics in these cases. Typically, they aren’t capable of seeing reality. So we are having a trial, but if a Guardian isn’t appointed, it’s a failure. So why have the trial at all?

These AIPs are typically the best witnesses against themselves, even if they don’t testify. If they decided not to show up for their trials, they would win 3 out of 4 jury cases. But the paradox is that, while so many refuse to show for their judge hearings, of those that do show up and demand a jury, a large percentage of them absolutely relish appearing before a jury, sounding off about the great injustice being done to them, or more typically, wholly irrelevant incidents from their lives.

It gets worse. Another feature of the mental disorder is the inability of so many AIPs to get along with their court-appointed lawyers. A few lodge outrageous charges with the disciplinary committee against their attorneys, who then have to report the charges to their insurance carriers [“Yeah, its attempted murder.…again.”], as their reward for taking a pro bono appointment to assist the court.

We need to protect these lawyers, and soon, or we won’t be able to appoint anybody. Be honest: if your phone lights up and you can see that it’s the Judge who gave you the last such disaster case, would you pick up the phone? Not me, pal.

I like to think that, in one hundred years, the way we treat the mentally ill, as a society, will be condemned in the same manner that Our Enlightened Age views the Salem Witchhunt era. [You see how I came full circle? Brilliant.] We’ll have resources and remedies we don’t have now. Mental illness will be treated the same as physical illness, and our sympathies will be the same for both.

But it’s not that time yet. The way we treat the mentally ill in Guardianship Court is ineffective and unsatisfying. We need a new law and new procedures that are tailored to this group, who should not be treated the same as children with birth defects or seniors with dementia. Face it; we just don’t know what we’re doing.

BONUS ENDING

My Dog [to be read in a Steven Wright voice]

My dog is a registered sex offender.

He exposes himself in public, even to little children.

He licks his private parts while company is there.

I hired a sex addiction therapist, but he immediately ran up to her and sniffed her crotch.

She’s suing me.

He’s now banned, and has to remain 500 feet away from schools and public parks. The last one is tough. So we stay home a lot and watch movies together.

Last night we rented “Weiner.”

INFERNAL NOTIONS COUNTER

I got some damn fool notions to share with you. And I’m just the guy to do it. I’ll have you know that I am in talks with a major production company for a Roman Emperor reality show [although talks are not going well, they keep telling me that “the Kids don’t want to hear That Latin Stuff”]. But I have won the “Talk like a Roman Emperor’ competition, which is held every July, seven years running.

So just throwin’ this out there. Some of these ideas I will fight for to the death – I’m practiced in this — others not so much, and sure, there are certain ideas that are so outrageous that they can’t even be discussed. These ain’t that kind.

For example, your friendly Neighborhood Nursing Home brings on a petition as a ‘concerned party’, but everyone and their goldfish knows that the one and only purpose is to get Medicaid for the patient, because the family ain’t helping. No great crime, but why not require the N.H. to post a $15,000 bond as a condition for the appointment of a family guardian of the property, so that when — I meant if, of course – the guardian fails to file accountings, we have something with which to pay the lawyer we appoint to clean up the mess.

Maybe you’ll like this one better.

Forget this business of trying to make accountants of lay people, as discussed in the last post. Instead, let’s just send the guardian’s bank statements to a court examiner, who will be paid to prepare accountings, report to the court, and also remove guardians who don’t spend wisely. Make the CE co-title holder to the account. Remove one of the tasks from the Guardian, the one they never do.

In one county at least, they’re sort of started this process by directing the banks to send duplicate statements to the court examiners. Good first step. Some of the banks –I know you will find this almost impossible to believe — are balking, and trying to impose extra fees. How can this be, they so love donating their services, and paying us hideously high rates of interest for our savings [Special Introductory Rate, .0119%] Some banks even want to have ‘relationships’ with us, right? So sweet. Oh, don’t touch me there; I’ll scream.

Obama letting these slimy loan sharks walk free after ’08 will forever remain his worst legacy, worse than due-process-less droning of an American citizen, but I digress.

How about this: surety bonds for everybody. No guardian of the property ever will be appointed again with a waiver of the bond, since if there’s money or property of any kind, there will be a duty to report. This will result in fewer family members becoming guardians, which will cause enormous angst, but the flag will still wave and the rockets red glare.

Here’s one you’ll probably hate: no Guardianship proceeding should exceed three days in length. If it goes longer, it will do nothing but inflate fees, mostly incurred against the oldster’s estate. How much benefit to the AIP do you suppose that such costs provide? None. Very occasionally Slim. But too often, the lawyer appointees, who, I get it, are used to putting in long hours for cases that provide no compensation, will take their time in those instances where, thank you Jesus, they are finally getting paid. Any more questions, Counselor? Just a few more, Your Honor. Its only human nature, but we don’t have to let it happen, or we can at least impose reasonable limits. So line up your fifty-seven witnesses. We’re knocking off this sucker, maximum, in three days. No more adjournments. I don’t care how many devoted children the AIP has from the five marriages, each of whom wants to be heard with respect to whether Sis or Bro have never visited Mom until two weeks ago. We get the point. You may step down. Your objection is noted.

Have you ever heard of ‘unbundled’ legal representation? Me neither. Never mind.

Oh, just remembered [I’m old]. It’s where you buy some aspect of legal representation, a la carte, so to speak, without the lawyer coming to court to represent you. No notice of appearance. So you go to his office, let’s say, with some guardianship papers that you downloaded off the internet, and Ulysses S. Unbundled Esq. helps you fill out the papers and tells you how to serve them after you submit them to the Court. Just as an example. You can buy something else, or tell ‘em to ‘fill ‘er up’ with everything on it. Give me some of that high quality legal representation. For a price.

This is my intro to the Wonderful 2010s and the current plague of pro se Guardianship petitions, and folks, it is a plague. OCA thinks it’s wonderful that lay people can now represent themselves in Court proceedings. Coming next week: remove your own gall bladder. And get a free Cap Snaffler.

Why do they think this is a good idea? Is there something wrong with them? Opiods? These are probably not the same people who have to wade through hideously idiotic legal papers suing the landlord because the slow elevator made them impotent, or in the case of guardianship petitioners, pointless applications that are barely-disguised lists of grievances by one family member against another, which an elderly mom or dad will get to experience in excruciating detail over several [not more than three!] days of tedious misery.

Or you can get a bad tenant who has run out the string in Housing Court who figures it out: Hey, I can get another few months delay, and stop the eviction, if the Court decides that I’m too crazy to pay rent. I have been quite depressed lately, Your Honor.

Some of these pro se’s have gotten unbundled help, or some help from the office of the self-represented, or none at all. Almost never are these bona fide petitions, and if by some miracle they manage to make it through to Judgment [a combined decision/short-form Judgment prepared for the pro se, courtesy of a very generous law secretary, who in effect is doing free legal work for a litigant] good luck on getting accounts out of any of these new guardians.

Why are we doing this? Why are we, in many cases, taking fees away from genuine Guardianship attorneys, for those cases that have any validity at all, but more to the point, why are we taking court time and resources away from valid cases to help pro se’s give vent to their grievances? And why does OCA think this is a peachy idea?

Here’s why. Must I tell you everything? The long term trend of shifting control of the Court system from lawyers and judges — who should have control because they actually do this work and know what happens in the real world — to bureaucratic bean counters, ‘efficiency experts’- which is the history of the last thirty years, folks – has given rise to this idiocy. An attorney who practiced law for decades would stand up at a meeting in OCA, bang the table and argue vehemently against this nonsense. I believe.

But there don’t appear to be such persons at OCA anymore. [e.g.; who thought that AJ McMahon would behave herself in Staten Island?] That’s how we wound up with a program to take auto accident cases from one county, with a huge backlog of such cases, and remove, and distribute hundreds of motions from those cases, over several northern counties all over New York State. In two different Judicial departments, with different legal precedents.

They really did this.

I got nothing to add.

Other examples would be the programs [this will be an innovation, I tell you!] that are instituted on a very frequent basis and imposed from above, a new form to fill out, a new procedure, a brain fart of upper echelon bureaucrats, some shit bestowed on lower echelon clerks, without trying it out first as a pilot, or asking the people who will actually be doing the work whether they think it’s a good idea. This is such a common schtick with these people that it hardly warrants discussion, as they say. Special Foreclosure Part. Don’t get me started. A waste of resources, just begging for an investigation.

We’ve come full circle; my bright ideas to start, ending with complaints about the bird-brained ideas of the Powers That Be.

But like hearing dates, bitching sessions should be limited, so I’m going to stop right there. In the meantime, let’s keep this in mind: not every voice should be heard, and not every rude encounter is harassment, and it trivializes real criminality to bitch about every little damn thing. This is something I would always tell my slaves when they complained about this slight or that.

So behave yourself, because the ‘I’m offended” contingent are on the march. They even managed to piss off enough people to get a jackass elected president.

And until next time remember: Everyone who says ‘it’s not about me’ is lying, just as no one ever said anything respectful after saying “with all due respect.,”

And as always, Mundus vult decipi.

FAMILY GUARDIANS OF THE PROPERTY ARE THE PITS

Oh, that was a bit harsh. Let’s start from the beginning, and work backwards.

The Court can appoint three kinds of Guardians [oh, not that damn Gaul is divided bit again; I’m finished with it]. There are lawyers. There are institutions. And there are family members.

An aside: By the way, did anyone else notice that the law sets the alternatives out in this order:

Dismissal of the petition; 2. Single transactions, and 3.Appointment of a guardian. In practice, it’s reversed. That’s the problem, I think. Too many Guardians. We’ll come back to that.

Where was I? Oh yeah.

Legal Precedent compels the Courts in NY to give a preference to family members in the appointment of Guardians, and man, do they ever.

If the IP has money, there will have to be a surety bond [damn near always] to protect the estate. A lot of lay people cannot qualify for bonds, so we wind up with lawyers getting appointed.

If the bond is not an issue, in most cases we’ll wind up with a son, or daughter, or spouse, a nephew, whatever.

Sometimes this works out splendidly.

But here’s what everyone in Guardianship Court knows: family members, by a large percentage, are not good guardians for property. They stink, actually.

I’m not really talking about financially exploiting grandma, although the lack of a bond means that we have less leverage against Granny-starvers than we do against lawyers, who have to worry about their licenses, for example. For non-profits, the Attorney General and his 47 million lawyers can get involved. For John and Jane Q. Public, not so much.

As a group, family members are terrible guardians in terms of reporting annually to the Court. They are terrible at spending the IP’s money appropriately, or making sure that any spending is solely for the benefit of the IP. In fact, quite a few of them are terrible at doing anything, including showing up and responding to Court orders. Many of them are appointed, never qualify and simply disappear. GINOs – Guardians in Name Only.

Well, what did we expect? This is a country where most people don’t, as in Days of Olde, take a pencil and fill out their own tax returns, even if it has the initials “EZ” on the face of it. We use those guys dancing around with statue of liberty plastic thingies on their heads [that’s how you know they’re good], or go to the store front place that’s a party store for most of the year, or give it to the accountant brother in law to do, or invest in an overpriced [courtesy of your lobbyist-owned representatives] tax computer program. Or, more often than we pretend, people don’t file their taxes at all.

Is it all that surprising that most lay people – some of whom are acting in good faith — flat out suck at filing annual accounts of their income and expenditures as guardian? Frequently, nothing adds up, because those pocket calculators that everyone is buying these days are so damn expensive, you know. And the level of math instruction in the schools is one reason why we have books predicting our eclipse by China within 20 years [re-adjusted to ten because of President* You-Know-Who].

The Hapless Family Guardian will often solve this problem by doing nothing at all. This comes to a head when the ‘ward’ [why do I always still think of Leave it to Beaver? You too?] passes away and it’s time to file a final account. And also time to make a motion by order to show cause to settle the final account. Stop right there. In how many other areas of the law do we require lay people, who are volunteering to help a family member, to either do their own legal work, or hire lawyers to do it for them? And why do we think they are going to go into their pockets to hire lawyers when there is only a small estate, or none at all? Don’t they already have to hire a lawyer for the estate in Surrogates? Besides, Aunt Millie is dead, and my lawyer never said I’d have to do anything after we paid the Nursing Home, and I just started a new job so I really don’t have time for this, and…… Uh huh. Yes. I see your point.

So our H.F.G. ignores the Court, or he/she promises that they will do it, and then doesn’t do it. Mom is dead. She’s finished. I’m finished. Go away.

But we can’t. We’re supposed to coerce the Guardian to account. Great job, huh? We drag them into Court and give them some forms, suggest they hire a lawyer, but if they don’t, here’s the form, fill it out, see how easy? Then serve the order to show cause, and…..you’re not going to do this, are you? Nice old lady. We’re never going to see her again, right?

It’s unpleasant to coerce lay people who don’t understand why you’re bothering them, and let’s face it, as institutions, Courts are not good at this. Actually fact, terrible. We’re not built for this. They say the IRS is pretty bad at enforcement too, on a percentage basis [tax evasion is rampant at all levels of income, especially the top, which we knew before anyone ever heard of the Panama Papers], but they have it all over us. At least they have all those ’self-reporting’ people with W2s, for example.

Us? We have: No investigators, no marshals, no chance. [Okay; a few exceptional Court Examiners who do amazing uncompensated, or barely-compensated work, but that’s a story for another time]. If the nephew doesn’t want to close out his guardianship for dead Uncle Al any more, we can’t force him. There are too many of them, and not enough of us. There aren’t enough hours in the day to hold enough contempt hearings, and no money in the budget to physically drag all the nephews, siblings and brother in laws into Court.

So how do we solve this problem? Simple. Like the H.F.G., we don’t bother.

Well, no, we do some of it, a lot of it actually, but mostly we pick our spots. We drag them in where there’s a lot of money involved, or conversely if there’s no money at all, and no one to upset. In the latter case, all we’re doing is checking off the box “disposed.” A great achievement, by all accounts, and we feel like a Court.

Otherwise, every Court in the City has hundreds of these dead fish, and let’s face it, the Powers That Be don’t care, because it’s lay people, the voters who pay the bills. Is The Times going to run an expose?

Why should we care? That’s a great question, with moral implications, but we’re out of time.

In the meantime, if you’re a district attorney of some notoriety, let’s try and stay out of trouble for awhile, huh? I’m trying to stay on topic here and some of you are not helping matters at all. Cy? You okay with that? Good.

Go out and indict somebody for money-laundering, preferably in real estate. All you gotta do is look.