Don’t know what you think, but I’m the kind of guy who likes to do things for himself. That’s why I’m just crazy about this new do-it-yourself Guardianship Kit. Why pay fancy legal fees when you can just fill out the forms yourself with your own pencils and get a Guardian you know you can trust who’s just as good as anything you’d pay for. Operators are standing by.
Actually, no need to call. Check out the web site for CUNY/Main Street Legal Service. OCA/ Surrogates also has a full complement of the forms needed in Surrogates, which you can adapt.
I’m not in private practice, but if I was, my question would be, “What did we ever do to you guys to deserve this?” Why not set up a free chicken BBQ in front of KFC while you’re at it?
[Oh, Damn. The Old Bastard is ranting again. Who brought up pro bono petitions after I gave strict instructions to avoid the topic?]
What urgent need is being met here? We have a tsunami of matrimonials being conducted without lawyers. Ask a matrimonial referee how much fun it is to preside over these proceedings without any sane adult supervision. Apparently, the aim is to afford the guardianship courts the same high quality of judicial decorum and legal representation that they now have in the uncontested matrimonial parts.
Mind you, the good folks at CUNY/Main Street make a valiant effort to discourage their customers. “We recommend that all people who can hire an attorney!”
Sorry, not good enough. Clumsy wording too, but WTF. You’re handing out heroin on the street corner with strict product warnings. Nobody drawn to use these materials is in any mood to read any warning labels. They are enchanted with the free aspect of the thing. More of Grandpa’s money for me; what a great deal.
This means that no lawyer has looked at their petition. This matters because most lawyers, when they talk to the pro bono people [one gets the feeling some of these have already been rejected by lawyers], will realize that most have no business seeking a Guardian, for a variety of reasons.
Should I list some reasons? A lot of them are families quarreling over parental assets, not waiting for the loved one to meet his/her maker. Pre-death probate fight, you might say. Others are tenants who have exhausted their remedies in Housing Court. And there are the pure of heart, well-meaning but with no ability or temperament to prosecute these cases, and even if they did, they have no ability to fulfill the obligations that they seek, and aren’t all too sure what they are looking for, except that Dad really is out of control these days.
A solution in search of a problem.
In this way we will provide more access to justice by helping people come to court without an attorney? Why not free access to medical treatment rendered without doctors or nurses, or even clinicians?
Might I respectfully suggest that this is more about access than it is about justice.
Guardianship lawyers should not sit back quietly and let their livelihoods be do-gooded out of existence.
The Bar Associations should be letting OCA know that they are not pleased, and that there will be repercussions. For candidates for judicial office, I think that’s spelled r-e-p-e-r-c-u-$-$-i-o-n-$.
But honestly, CUNY’s materials are great. Its good shit, as they used to say on the street, or at least in those cop shows in the 70’s.
Many of the lawyers now practicing in Guardianship would do well to download these materials, and scrap the stuff they are using now. Presumably they’ll read the directions better than the pro se’s do.
How about we do this instead: Why not expand resources to give legal representation to all who need it, and who have valid cases? There are thousands of young, bushy-tailed law students who would provide most of the labor. But how about we triage these things, and weed out the petitions that should never see daylight? And have a real guardianship attorney supervise. This is basically what Main Street does, but they are a small operation.
Threshholds and guidelines, weeding out bad cases at their inception. We were supposedly doing this in med mal [a huge success by all accounts]. Why not a threshold standard for guardianship filings? Or are only the med mal insurance carriers entitled to special protections? How about AIPs and the families of wacky pro se petitioners?
The Courts routinely do something like this with the personal injury lawyers who don’t know a Guardian ad litem from an Article 81 Guardian. We gently but firmly refer them to CPLR Art 12, and have a nice day.
We have all we can handle with providing competent legal representation for the millions facing heavy prison time; is the solution handing out home defend-a-felony packets?
Of course, it’s just a matter of time before Amazon gets its hooks into this; drones that will represent you in court. One day delivery with prime.
I get it; the damage is done, you can’t un-ring the bell. The materials are out there, and highly popular. We’re stuck with this for the foreseeable future.
Well, the Courts – and by that I mean the Judges and their staffs – don’t have to take this lying down.
Here’s what the courts have to do to protect themselves from the free formers:
Identify all the pro se petitions, analyze how many of them go through to hearing, how long the hearings take and how they are conducted, how many actually result in the appointment of a guardian, how many qualify, how many marshal funds and account to the court, annually and final.
Then we’ll have the data to demonstrate whether this is really a problem or not. It’s my well informed guess, and anecdotal experience that it is. If it’s not, then never mind, and you Guardianship lawyers, why don’t you find something else to do.
Maybe matrimonial.
But assuming my guess is correct, here’s what comes next:
Never sign a pro se petition unless you have first called in the petitioner and put them on the stand. At minimum, you can ascertain whether they understood the written directions. If the petition is good, you might even appoint an attorney for them. If not, decline to sign.
No joke: some of these petitioners themselves need a guardian.
Don’t schedule the hearing until a witness list has been provided. Maybe appoint MHLS as Court Evaluator to report back to the Court before the hearing is scheduled. Hold the hearing date in abeyance until you know what’s going on.
Never appoint a pro se guardian of the property unless you fix a bond to guarantee their performance.
Deny petitions unless there is clear and convincing evidence; I mean really do it, don’t just say it.
Never appoint a pro se guardian with normal powers; limited is the way to go. Make them short term, bring them in to see how they are doing with the specific goals that were set for them after 6 months. This should be s.o.p. The MHL lets you do it, and these remedies are there for a reason.
The Surrogates Court has simple guardianships, which are restricted in scope. Let’s steer as many of these cases there as can be done responsibly and conscientiously. Or is that the same thing?
Meanwhile as we open up the exciting career of legal practice to all, even to those without the capabilities of advocating responsibly, and quite a few who are using court proceedings for the purposes of vindicating irrational grievances, let’s take a look at the real problems we are neglecting by spending so many of our judicial resources on this feel-good exercise:
We have more elderly asset exploitation in our city than we even know exists –
We have more schizophrenic/mentally disturbed tenants living in unspeakable filth than the city knows what to do with.
That’s two just to start.
How about we start identifying the problem areas and looking for ways to focus in on them?
And how about a Public Guardianship, just to start? When did someone first suggest this, 1993? It will all flow downhill from there.
As people always say, a panacea to solve all problems. This literally makes my head explode.
Remember: “Literally” doesn’t mean” literally” any more.
But let’s put an end to Forms Over Substance.
Uplifting Conclusion.
And so this is Christmas, which President* Donald Trump just restored to the calendar, so let’ s look at the bright side.
By and large, Guardianship Court is not so bad, and it is not so plagued with festering problems as the rest of our Court. In fact, the Guardianship Parts, by comparison with their peers, are pretty damn good.
I didn’t say perfect.
If you are Janet Difiore — aside from the fun and games screwball Judges play periodically with shitty appointments in places like Long Island and Brooklyn, stories which make the tabloids gleeful — your attention is more often drawn to the non-guardianship side of things. For example, why does it take years to get a jury trial in some parts of the city, which is a direct attack on the commercial aspect of the legal profession, which sort of pays the bills around here. Fed up lawyers and their clients have long been voting with their feet, diverting cases from the courts to mediation. This is a problem, folks. And the litigation loan industry is a ticking time bomb that the courts and the bar have refused to acknowledge or regulate. [Because it’s more lucrative than the practice of law?]
The laws of time and space preclude the listing of them all, but I’ll get to most of them eventually, don’t you worry.
But Guardianship chugs along, basically doing a creditable job. Thanks to the Birnbaum commission, we have centralized the cases in each borough in front of one or a few judges, and by and large, we have the better judges doing Guardianship.
And this after we prematurely lost Joel Asarch, who was very good indeed. Before this, we also lost the nonpareil Charlie Devlin, the best of them all, who was professionally murdered by idiots at OCA, which is a story for another time.
The chief clerks in the boroughs doing this work are very impressive as a group, and unlike the rest of the court system, for the most part, you make a motion, and you get an answer in reasonably expeditious fashion. It’s amazing how well people do their jobs when you give them no choice to do otherwise.
And the Guardianship Judges [generally speaking] really know their stuff, because it’s their steady gig. Nice.
Your actual mileage may vary, but……
Always look on the bright side of life.
So until next time, tra la la la la, and let nothing you despair.
