I’m using the blog name Pertinax instead of my own, because, well, its easier. Had to pick something. He was a Roman Emperor who meant well, but only lasted a few weeks because his reform efforts got the powers that be pissed, so he was dispatched after 90 days or so by greedy centurions. Hate when that happens.
It’s pretty simple: I have a big mouth and I work in the Court System in NYC. Hence this court blog. What the world needs now.
I’m going for a balance of constructive ideas, and scurrilous observations. There are better ways that we could be doing things, especially in Guardianship. The scurrilous part? Well, there are things that explode in the NY Courts that are relegated to back pages by the media, or unknown to the public, or simply ignored, because we all have better things to do, and there’s always another Yankee game. [Maybe not].
I’m no scholar and I don’t know any. But I have some practical experience in the system, so why not me? I did run an empire after all [a pretty damn Evil one, too]. And I’m not selling anything. Maybe some Pertinax tee shirts.
This is mostly going to be about Article 81 Guardianship, which is a desert island floating several miles off the coast of the rest of the court system. An anomaly, in other words, or in this case, one word.
Here’s one well-known example of what I mean by anomaly: Our Courts are adjudicative bodies; we resolve disputes. Eventually. You fell on my sidewalk and want 20 million dollars; I say you didn’t and don’t want to pay you anything. The Court, and very rarely, a jury if it gets that far, decides for one party or the other, or more likely it compels a settlement, the dispute is resolved. Fin.
Guardianship is different. It starts with a hearing/trial, not years later, but very soon after the case starts, and concludes with a finding, more than 90 percent of the time, that the person is incapacitated and needs a Guardian. That happens, hopefully, in about a month or two. We now have an incapacitated person, an “IP”. Or we have a person with disabilities who knows he needs help, who consents to become a “PING”, or “Person in Need of a Guardian”.
In either event, we now have a Guardian for the Court to baby sit, or monitor. A judgment is entered which appoints the Guardian and sets out what the Guardian is allowed to do.
For every other kind of case, medical malpractice, auto accident, breach of contract, whatever, the Judgment ends the case. You won, here’s your money, or you lost. Next case. [Okay, if I refuse to pay the Judgment, or if there’s an appeal , we go on, but you get the point.
With Guardianship, we have a Judgment right away – not at the end of the case – but this means that the fun and games are just starting. And we’re really not going to be resolving disputes anymore. Well, we are, but they are usually collateral disputes, like, Is it time for the I.P. to be moved out of her apartment and permanently placed in the nursing home? The Really Big Question, lack of capacity, has already been decided. So for the most part, we’re now monitoring the Guardian. Endlessly demanding of the Guardian, “did you do your homework?” [e.g. file annual accounts, take the guardianship course, spend the Incapacitated Person’s money appropriately, whatever it is]. And we have to compel them to comply with our orders and with the law. We are now in the time-consuming compliance business, something we were not designed for, and which, let’s face it, we are no damn good at.
The Guardians are always our ‘students’ and we are their fifth grade teachers, until the IP doesn’t need a guardian any more, or until, more usually, the IP dies. And then we have to force the guardian to close the case out properly, which is frequently the least successful part of the process from the Court’s point of view. In many cases, Guardians simply ignore the Court, which has the enviable choice of taking hours to drag a final account out of [presumably] grieving family members, or getting busy with something else. Most Judges opt for the latter.
There are other differences of course. Alleged Incapacitated Persons are wards of the Court. The fellow on your front sidewalk with the broken leg, isn’t. If your personal injury lawyer screws up your case, we dismiss it, and don’t even say goodbye nicely.
If you petition for a guardianship, and don’t show up on the return date, well…..its not that simple. And if a Guardian stops doing what he or she is supposed to be doing, the Court can’t just ignore the whole thing: “Its your Grandma, buddy. If you want to ignore her, it’s your problem.” Nope. It’s ours.We’re all wrapped up in your family business now, and can’t walk away.
How terrible/ineffectual are the Courts — which were not designed for this and don’t have the resources needed to do it — at compelling Guardians to do their jobs? That’s the next post, or maybe the one after the one after that.
By the way, if you haven’t yet read the article in the New Yorker (“How the Elderly Lose Their Rights”) about Nevada’s disgraceful lawyer-free Guardianship proceedings, do so. It will make you proud, or at least relieved, to be a New Yorker, which is a novel sensation. At our worst, we’re never that bad. I can say that with some confidence, but not over-confidence.
Thought I’d take the high road for this first post. We’ll get to the cheap shots soon enough. Be patient. I’m a Roman emperor who was stabbed to death almost 2000 years ago, and I get tired.
