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.