What do we want?
Reasonable reforms!
When do we want it?
What time is convenient for you?
We’re back to Guardianship matters today, and about damn time. We have no shortage of very bright people making smart suggestions on possible reforms and improvements to the system of appointing and supervising guardians. But we have an acute shortage of people in the system willing to take the bull by the horns to push some of these things through. How about some pilot programs, to start? Those are nice.
If I was governor, I would take the simple approach of having the legislature wrap up a whole bunch of money and throw it at someone who has forgotten more about this topic than I’ll ever know, say Prof. Erica Wood [google her and you’ll see what i mean], let her hire a bunch of smart folks, scholars, practitioners, and court personnel, in reverse order, and give her six months to put out a program to improve this segment, with special emphasis on compliance problems. Most of the ground has been broken already; the studies are out there. Save some money for a pilot public guardianship program while you’re at it, but that’s secondary.
Start removing the Courts from doing some of the things it’s no good at, with none of the tools needed to do it, in situations where its best not to insert the judicial proboscis in the first place.
For example, can we agree that supervising a low asset/no asset estate is a fool’s errand? Let the family member collect the social security for grandma, and let social security worry about it. And for the gods’ sake, we have no business supervising $45,000 supplemental needs trusts. Set up a pre-paid funeral, and after that, go tell your troubles to HRA/DSS, which frankly isn’t going to care either. Trying to right every wrong is a wonderful formula for accomplishing nothing, but this is worse, because it degrades the courts as an institution, wastes resources we can’t spare, and enhances cynicism about the rule of law. Very few dragons are slain.
Okay, its category time again. We have three basic types of guardianship: geriatrics [which are divided into nursing home and community cases ], psychiatric [which are all community], and the brain damaged baby/med mal case, the appointment they all want. Three types of fiduciary appointment, all requiring different abilities and resources. A solo practitioner who is so unfortunate as to become guardian for a psychotic I.P., even one with substantial resources, runs a strong risk of becoming so harried and harassed as to threaten the continuation of his practice, maybe even his marriage, if he has one. Some people have no business getting such appointments, and the courts have no business foisting them on them. So why do we have one category of appointment: “Guardian.”? Does that make sense?
Before you pick up that highly informative part 36 list and scroll down, wouldn’t it help to know what types of appointment they have handled before, and what Judge appointed them? Then you could pick up the phone and get a quick recommendation, or warning as the case might be. But you’d save time, because we spend so much of it looking at people who have no ability, and no interest, in the type of appointment you are trying to fill.
This was pointed out over a decade ago, in the Birnbaum report, to the extent that they recommended that the list be weeded at least to remove the people who are ‘capped out’ – Bring this 437 page list down to 28.
Remove those people who register year after year, but tell you on the phone that they “aren’t accepting appointments”
How about some sanctions for that, by the way? A bit frivolous with the court, wouldn’t you say?
Here are some of the changes suggested in the past, and I’m not pretending originality here, but let’s give a shot to some of these:
Make one year guardianship the norm, with compliance dates set out in the Judgment. If a Guardianship is not a life sentence for the Guardian, perhaps we can get more attorneys to accept them [and as a matter of routine hand them off to family members after the technical stuff, like medicaid work, is finished].
After a year, we terminate, extend, change the guardian, whatever. This also means a full time guardianship judge and staff, and please OCA, what the hell are we doing bogging down full time guardianship judges with med mal motions and the like? If they’re doing several hearings every day, that means they are issuing orders before the hearing, and resolving problems without orders. That’s assuming they aren’t doing post judgment compliance as well, which is a very different task. Of course, if you really want long delays between hearings and judgments, just let us know….
Let’s design a system which obtains and ensures medicaid eligibility for nursing home residents, which doesn’t require a Guardian. Make it a limited, special proceeding, with limited due process rights, because for the most part they aren’t losing any rights, just gaining a benefit.
Make limited guardianship the norm, but don’t limit them to the extent that the guardian has to return to court in three months to get an expansion of powers. These are two contradictory recommendations, but you’re a smart guy, and I’ll let you figure out how to reconcile them. That’s why we make everyone take the LSAT.
Although we so love consent appointments — PINGs — because it spares us the protracted inquiry into the elements of incapacity, let’s get real, people. Dementia is a progressive disease. You are not helping a geriatric who is on a clear downward slide by limiting the appointment in time and scope, when the consequences are future protracted court proceedings and sometimes, the risk of possible homelessness. If they are incapacitated, let us not evade the problem under the guise of minimizing infringements of their rights, like the right of a 78 year old lady to wind up in a shelter.
Here’s an old favorite:
The fees of part 36 court examiners should not be subject to caps. Did you hear me?
The fees of part 36 court examiners should not be subject to caps. One more time.
The fees of part 36 court examiners should not be subject to caps. Once more?
Oh, you got it. Good.
Okay, this is hard. I truly love the Project People who are trying to provide maximum access to justice for the poor, who can’t get lawyers to help them with guardianship, housing, whatever. The are doing the lord’s work, although I have some problems with the pro se petitions for reasons whined about previously. But when the Project People bring on a petition to help a schizophrenic tenant, who is driving his/her neighbors to insanity, the Court is compelled to find an appropriate guardian to 1. clean up the place, and/or 2. find them another place to live.
And then the fun begins. The worst kind of appointment, no matter who brought it. If this petition had been brought by APS and the Corporation Counsel, the Court has no problems: the guardianship is pre-loaded: its a community guardianship organization under contract with the City of New York, with psychiatric social workers and similar trained specialists under employ.
With a petition, for the same IP, brought by the well-meaning Project People, where are we going? Probably one of the non-profits, or perhaps an attorney with extraordinary bravery and resources, one might hope. Or naivete. In most cases, we are doomed to failure. We can’t use the community guardian, because the City is selfish and won’t share. We’ll get a guardian all right, but the life of the ip will probably not be improved, and the Guardian’s life will be much worse, if a solo practitioner. So what have we accomplished here, exactly?
Which is a long winded way of saying we need more (and better) community guardianship organizations, we need them in more situations, and yes, for the 99th time, we need a public guardianship organization. Or maybe we need involvement of social services agencies without the cumbersome guardianship process.
That’s not all I have for the nonce, but it’s more than i care to inflict on you at the present time.
In the meantime, changing topics madly for a moment, puzzle me this:
If you were a theoretical political party which has made a practice of doing things like this:
Sending off- duty cops to minority polling places to intimidate voters and suppress the vote, effecting the election boards to send more problematic, and less numerous voting machines to those districts to cause longer lines and fewer votes, gerrymandering throughout the nation to water down the power of the other party’s voters, so your party can maintain control with fewer votes, etc. etc.
and then:
a hostile foreign party approaches you and suggests that its willing to steal secret stuff from the other party’s candidate, and maybe we can talk about issues of interest to our country, which is being sanctioned by the other party’s president, is your response:
1. ” Sir! what sort of knave do you take me for! I intend to bring this to the attention to the FBI forthwith!” or
2. “Sounds great! I know a place with great sushi where we can discuss the particulars” , or
3. “Okay, fine, but I’m not paying for a landslide. Just tip a few states in the Midwest, the ones no one cares about, am I clear, Tovarich? ”
We’ve asked a random sampling of political parties that fit the criteria set forth above, and will publish the results shortly.
Signing off from some hell hole, I am your faithful servant Helveus Publius Pertinax, renowned for his very stable genius.
