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.