PART 36 MUST DIE

The Part 36 restrictions were put in after the Birnbaum Commission recommended that Judges be restricted in their ability to make patronage appointment of Guardians, Receivers, and other lucrative thingies. This whole imbroglio was set in motion because some ‘Pols’ in Brooklyn had the stones to publicly complain that they weren’t getting the cushy appointments in spite of their $$$upport of the party organization.

As they are prone to do, the powers that be set out to destroy a few mosquitoes by bombarding the entire region with napalm.

A bit strong, okay. But if they want to prohibit Judges from giving every damn lucrative Receivership to a single party hack, as they did out in Long Island recently – in spite of the Part 36 Rules! Hello? – why not simply pass a prohibition against the concentration of single appointments with projected compensation of $50,000 per year ? How about no Judge can give any single individual one of his ‘super appointments’ more than once a year?

Well, we didn’t do that. We’re keeping track of every damn thing [or we’re supposed to], and it’s a tragic waste of the time of court personnel. And it degrades the proceedings themselves, because some of the survivors on the list are very bad. Really, do you give a damn if a certain Judge gives five appointments to the same property appraiser, who gets $ 450 – 650 per appointment? But why do we now have, as of this morning, 15 [fifteen] [XV] different categories of Part 36 appointment? What in the name of all that’s holy does that accomplish? And we still have doosh bag Judges who will ignore the whole damn thing anyway.

Do it my way; we’ll knock this down to Guardians, Receivers, and SNT Trustees. The rest of you are on your own.

And for the zillionth time, why are we losing i.e. ‘capping out’ — our best Court Examiners because some pin head decided they were ‘fiduciaries” ?

And why not try something new: let’s discipline Judges caught doing this stuff by tossing them off the bench? You know, treat them the same as we treat the upstate non-lawyer Justices of the Peace caught fixing tickets? Can we guess why? Judge McMahon; I’m sorry. Did you say something?

Let’s dial this thing back. More restrictions are not better. OCA is totally hypocritical on this stuff, anyway. Here’s one obvious example: when an incapacitated person dies, the “Court Examiner” ceases to be. So we now designate the same person as “Referee” and let them review the final account, the same estate they were reviewing as Court Examiner. But because we’ve changed their title to something that Part 36 doesn’t cover, the fact that they might be capped out is irrelevant. OCA has no problem with this, but can’t explain why.

And the Republic yet stands.

My sage and measured recommendation? Shit-can the damn thing, and start over. Hone in on the problem, and deal directly with that, and with nothing else. We just designed a computer program, over two years, in a State Wide Task force just to make sure the Judges were reporting all their compensation. Instead of wondering what purpose Part 36 was serving, they spent tons of dough designing this computerized compliance regimen that does almost no good for anybody. J. Lippman’s last bowel movement, and it lasted way past the time when anyone could remember Gentleman Johnny’s winning smile.

Meanwhile, our compliance programs for Guardians – their reporting duties I mean – are still roughly what they were in the era of Conservators and Commissions. C’mon guys; let’s wake up.

The NRA Gunsters are always claiming we have plenty of anti gun laws already on the books that we should enforce, and that would be very helpful in preventing a lot of the gun crime we have now without passing further restrictions. I’m no fan of these bastards, but they are not all wrong. Let’s stop the slaps on the wrist to the worst miscreants, but let’s liberate the rest of us from pointless restrictions that diminish the quality of court proceedings.

Imagine this conversation:

MEMBER OF PUBLIC: Judge, I can’t be my son’s Guardian, but I know you’ll appoint someone who will do the best job for my son.

JUDGE: The best. Oh yes. Well, there’s a list of 140 candidates, of whom only 36 are active, and some of them really suck, but I’ll try to get you the one who sucks the least. The good ones are already capped out, even though they are on the list, and so I can’t appoint them. Sorry.

MEMBER OF PUBLIC: Can’t I get another Judge?

And by the way; if you are absolutely gung-ho to be appointed “counsel for an incapacitated person” ten or more times this year, by all means let’s get in touch.

YOU AND YOUR BIG IDEAS

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.

ATTENTION DO IT YOURSELFERS

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.

LETTER[S] TO DISPLEASING THE COURT

Q. What the f**k is the matter with you? First, crotchety is not spelled with a D. Second, what the f**k is the matter with you? I can’t understand what the hell you’re talking about half the time, and the other half I spend wondering what Trump said today, and who will be the latest to be outed for grabbing someone’s bum thirty-four years ago, and important stuff like that. Instead, we got all this schizophrenia and shit. How about something funny every now and then? Why isn’t this called Unrelieved Tedium.com, or is that taken already? Really, what the f**k is the matter with you? DUCCA LORRANGE

A. Well you might ask, Ducca. And thanks for using your real name. Is that a man or a woman’s name?

That reminds me of the Predicament of the Dying AIP.

You know the set up. The hearing starts; the appearance of the AIP – who is in the nursing home, we are told — is going to be waived. And then the somber son gets on the stand, and says he just visited Dad yesterday at the hospice, and he won’t hang for two more weeks, he thinks, but he’s in a coma, and sure needs a Guardian…..and what the hell?

The nursing home attorney, who brought the case, looks embarrassed, not the least because he didn’t bother interviewing his witness before the hearing, and wouldn’t know the AIP if he fell over him. The nursing home, it appears, handed him the file and said “Go”.

Its legal malpractice, but we’re all friends here, right? So why these “hurry up and get a Guardian” cases?

Sometimes, it’s because the AIP is going downhill fast, and the petition was signed and adjourned several times. Let’s face it, the number of Court proceedings in which everything is supposed to be completed in very short order is not long: there’s Guardianship, and ….uh, uh.

There must be something. Habeas corpus or other writs. OK. That’s another.

So the Court has been given this horrific opportunity, lucky ducky. A legal shit sandwich. Let’s play Beat The Clock. Something we’re so good at.

After His or Her Honor is done flogging the nursing home attorney, what is to be done? Is there anything that the family needs the Court to help them with? Do we get a lawyer to be temp guardian, or do one of those single transaction thingies?

This sounds preposterous on its face, but I’ve seen it happen a few times. It should never happen, of course. Don’t mean to shock you, but there’s some bad lawyering [Judging and Law Secretary-ing too] out there, and the poor sods who work the nursing home gig are undoubtedly not well-paid. Like Dick Cheney, the Nursing Homes have Other Priorities.

So, in most cases, I would think, you appoint someone, tell them to do the best they can, which means running around like a nut for two weeks, maybe do a few things for Dying Dad, maybe very little, but it’s all appreciated, because we put the lawyer appointee in a shitty position. Or credential [verb] the somber son, but it usually transpires that, if he was all that capable, we wouldn’t have had this proceeding in the first place.

As anyone who has eyes can see, a reckoning is coming with the nursing homes, who perceive their margins as getting squeezed by an increasingly vigilant HRA/parsimonious [frequently insane]Congress, and by families that don’t want to cooperate in their glorious quest to get paid. The system, if this is what it is, teeters towards collapse, like most things that teeter eventually do.

The bigger point is that the installation of a guardian is a big, cumbersome deal, and before we go to all that trouble, we should have a legitimate reason to do it, and enough time to do it right.

The need for a streamlined proceeding to enable nursing homes to get their Medicaid, from customers who don’t have families who want to cooperate in the endeavor – or no families at all – has been a screaming need for 30 years, at least. Why are we still doing guardianships in these cases? It is a waste of court time, and frequently a fruitless exercise, especially when the AIP is at the very end of life. And we all know for whose benefit these proceedings are being brought. Why not a frank disclosure of what has been going on, some hearings, and then design a special proceeding around it? Isn’t this what State Legislatures do, or am I being jejeune?

What does jejeune mean anyway? I don’t want to look it up.

This is the 2010s; if we can design a computer algorithm for an online radio station that plays only music you despise [All Adele Radio!!], we can do this. We’re Americans.

Another Tangent: Did you ever wonder whether Algorithm was named after Al Gore? Me neither. Okay, back to the blog.

Just to show you that I am dedicated to my vast readership and all their concerns, the more pointless the better, and as a public service, I am donating this all-purpose Political Blog Bullshit Story Creation Template. If you read Mediate, HuffPo or any right wing equivalent, you’ve wasted untold days of your life reading thousands of examples of this click-bate political/celebrity stuff. Could you imagine the horror of having that job of pumping out this bilge, day after tedious day? Reading it is little better.

Well, this solves it. Use it this morning, make two or three of your own to quench your thirst, so to speak, and it will tide you over for the day. You can now ignore all of these stories clogging the net waves, the vast toxic wave of sludge coursing through our public discourse. They all go something like this:

Big Celebrity/Nothing Burger Low Life whose name you’ve heard/Person tangentially related to one
Praises/condemns/makes idiotic, ambiguous or ignorant statement

ABOUT

Trump/Prominent Dem/other celebrity/other Nothing Burger/own sex life
And is condemned/praised/ignored

Other prominent celebrity etc.

See how easy! You now have 12 extra hours this week to do whatever you want to do with your life. Congratulations.

Write a sonnet, go online and buy an extra present that no one really wants or needs, spend extra time flossing, whatever. No, you don’t have to thank me. Just trying to be helpful here.

Until next time, remember, ex nihilo nihil fit. I should know.

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.

WHY BLOG ABOUT ARTICLE 81 GUARDIANSHIP

What excitement, a N.Y. court blog. So 1997. Who does that anymore? What is a blog anyway? Is it stream-of-consciousness musings, like a dopey Larry King column? Remember those? Something like:

“Why do people say that you can’t put cheese on fish sauce? Did you ever have au gratin crab or shrimp? Delicious. What’s the difference? Next time you’re in a restaurant….etc”

Nah, none of that here. I’ll do my best, but bear with me. I’m old. I was stabbed to death by greedy centurions in 193 AD. [They got away with it too; even then Dennis Quirk had enormous clout] You think I should bother trying to keep abreast of the latest and greatest? To hell with that. I may be dead, but I’m not doing Facebook. That’s final.

Let’s talk about the recent past, the last two months, August and September. It was Janet Defiore’s Terrible, Horrible, No Good, Very Bad Summer. And like so many bad things, it came in threes. [Yeah, Gallia est omnis divisa in partes tres. Got that out of my system. Any idea how sick of this phrase we ancient Romans are?]

It started with that Bookstaver guy butt-dialing to a NY Post Reporter an account of how he maintained a pricey no-show job, courtesy of a deal between the outgoing Chief Handsome John Lippman and J. Difiore.

The butt-dial guy was being paid good money to do PR. How good at this was he, do you suppose?

This happens at a time when the Court is whining about not having the money for luxury items, like Part Clerks. [This whining has been going on since 470 BCE]. Fortunately, it was August, when most NY Times readers had not yet returned from the Hamptons.

But this was followed by the fiasco in Staten Island, with AJ McMahon, a real charmer by all accounts, meddling in criminal cases. This, after the Powers That Be in the Office of Court Administration [“OCA”] went along with the fiction that McMahon would only handle civil cases in the Isle of Staten, and voluntarily leave the criminal docket to a different A.J., because McMahon’s husband is the District Attorney. Sure, that’ll work. The only part of this that wasn’t predictable was the taping of the whole thing by a disgruntled chief clerk. Who is gay, and didn’t appreciate mockery about it from Ms. M., who is clearly a class act. She shopped cases to judges more likely to convict, a practice which is endemic, and which I’ll come back to in a future post.

Then Brooklyn did what it does so well – embarrass the rest of the state court system – when it was revealed that a Supreme Court Judge, Noach Dear was allowed to sit in the lower, Civil Court [what, did he feel unworthy and want his salary lowered?] on days when the Orthodox had their cases on. Strictly coincidental it wasn’t. As a politician, these were his Peeps, now his personal defendants of choice. Again, a Judge drifting over to an area where he/she wasn’t supposed to be.

Hilariously, the Post seemed to imply that Dear did this just because he was uncontrollable, deciding on his own to stroll into Civil Court on nights when defendants of a particular ethnicity had their cases on. The Post urged the Court System to “rein him in.” There is no administration in Kings apparently, and no one is in charge of assigning cases or judges; Judges decide when and where to show up, and they summon forth the cases they want to hear that day. Next week, Dear might get the urge to drop in at Family Court. If only there was some way of tracking his movements. Do Post readers actually believe this? Nah, they’re already turned to Page Six.

How would you like to be some plaintiff suing a Hasidem merchant and seeing that the defendant brought his own hometown umpire? [the City of New York picks its own favorite Judges to hear their cases, but I digress]. There is a well-founded, although distasteful rumor that the clerks in Kings have come to refer to those days as “Jewsdays.”

My good friend The Google tells me that the Administrative Judge for Civil Term in Brooklyn is Lawrence Knipel. Hello Larry. And Larry Marx [Hello Second Larry] and J. Difiore have no idea where Judges are being assigned on the other side of the East River? The telegraph lines went down years ago I guess. Forget it Jake; its Brooklyn.

Here’s what’s going to happen, and I say this with the assurance of a Roman Emperor who lasted all of 87 days [People Tell Me that no Emperor was ever better than me at predicting things, at least for 86 days]- Most likely, nothing will happen, until there’s another scandal. Then, J. Difiore or Larry Marx will issue some sort of silly edict – let’s say something that tells Court employees that they better show up for work, and not be like Bookstaver, and a nicely printed memorandum will circulate to thrill the hearts of men, or something.

Oh, we did that already? Sorry.

Better yet, let’s give all of the employees a new form to fill out! How they love forms. That’s the ticket. Then we can hire more clerks to process the forms? Oh, no, we won’t do that. The same clerks we have now will do the processing. But we’ll hire several new supervisors downtown to oversee the form process. Yes, this will work wonderfully.

There will be no impact from all this fancy managin’ on the places that are most out of control, which are, for the most part, those areas lying off the continental US mainland. But this should suffice for their purposes, since the few entities paying any attention to the court system apparently like Janet Di Fiore. So far.

If she should ever becomes governor, that hair will become nationally famous. But for now, all is well, and we’ll turn again to our affairs. Hell, we already have.

This happens over and over again – it happened a little while back in the Bronx, when the Times happened to notice that the Criminal Court didn’t do anything, so they did the old misdirection play. They scape-goated a good judge, Alvarado, who was trying like the devil to get his Judges to take the bench on time, and changed administration, amidst much fan fare. They announced victory later after a decent interval, with no change whatsoever, except that the newspapers had lost interest, which was the only goal. Running out the clock again. The main problem is that all of this undermines any argument the courts can make about getting more money and more personnel. Why should we waste money on the likes of you, Court System, or on Judges who take dubious paid leaves of absence that last for years, as was the case recently in, oh, Brooklyn, right. Cuomo despises the Court system, and this plays right into his hands. Happy to help you out, Governor.

The amazing thing about our Court System is how the counties that screw up the most – I’m training my steely-eyed gaze here on the East Bank of the East River — tend to produce most of the power brokers in OCA. Nice job; here is your reward.

Next Time, or the time after that, I’ll present my ideas for solving every damn problem in the New York Court System, effortlessly and at no cost, because I’m here to help. Remember, pars sanitas velle sanari fuit. Whatever.

I STARTED THIS DOPEY COURT BLOG AND NO ONE COULD BELIEVE WHAT HAPPENED NEXT

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.