Chief Judge Calls for Measures To Thwart Guardianship Abuses

By JANE FRITSCH

Published: December 6, 2001

New York’s chief judge, Judith S. Kaye, announced yesterday that she will push for a package of measures to crack down on judges and lawyers who drain the estates of incapacitated people whose interests they are supposed to safeguard.

Striking at the heart of a troubled system is a proposal to bar state and county political party leaders and their law firms from getting appointments as guardians for people who cannot handle their own affairs.

The measures would apply to all of the 1,000 or so fiduciaries appointed each year by the courts to perform a wide range of functions. In addition to guardians, fiduciaries serve as receivers, who manage property in foreclosure. Others represent the interests of children involved in litigation. Generally, fiduciaries are lawyers, and they are paid from the estates that they are appointed to protect.

Earlier this week, Judge Kaye released a report that said the system was riddled with problems that were largely related to patronage. The 27 recommendations announced yesterday came from a commission appointed by Judge Kaye last year, and headed by Sheila L. Birnbaum, a partner in the law firm Skadden, Arps, Slate, Meagher & Flom.

”The abuses hurt people and they damage public confidence in the courts,” Judge Kaye said yesterday.

The measures can be put into effect without changes in state law. After a 90-day period for public comment, a court administrative panel, and finally the Court of Appeals, must approve the changes. They could be in place by March or April.

The commission pointed out that a number of high-level political party officials have received extensive appointments as fiduciaries. And political party leaders ”exercise considerable influence” in the selection of judges, creating at least the appearance of impropriety, the commission said. One county political leader was found to have received nearly 100 appointments and another got more than 75. The small law firm of one county political party leader received more than 200 appointments.

Specifically, the proposals would bar political party chairmen and their immediate relatives from getting fiduciary appointments while they serve in those positions and for two years after they step down. The exclusion would extend to members and employees of their law firms.

Retired judges would also be barred from being appointed for two years after leaving the bench. The commission said some former judges have received an inordinate number of appointments and others have gotten extremely lucrative appointments shortly after retiring.

Guardianship case in McLean illustrates lack of regulation for those caring for the elderly

By Justin Jouvenal,

Nov 30, 2012 01:53 AM EST

The Washington PostPublished: November 29

In Maryland, a patchwork of lawyers, non-lawyer professional guardians and public guardians provide care for the elderly and incapacitated. In public cases, an employee of a local social services agency serves as guardian and each case is overseen by a local review board.

Lawyers often serve as guardians in the District, but the city regulates them more vigorously after a 2003 Washington Post investigation that found widespread abuse and neglect in the District’s system.

Graphic

Guardianship oversight

Court-appointed professional guardians are now pulled from a panel of lawyers that have undergone special training and background checks. They are required to abide by standards set by the courts and undergo new training each year. However, the District, like Virginia, has no set guidelines for compensation.

Court decisions

Diane Drakulich-Clarke says the ongoing battle with NMP has been a five-year nightmare as family members have sought to recover the savings that were supposed to carry loved ones through their twilight years and serve as an inheritance.

NMP says it made every effort to keep fees low in each of the disputed cases. It says the watchdog significantly overestimated how much NMP charged its clients and failed to grasp the amount of work needed on cases with complicated family dynamics, such as the Drakuliches.

Furthermore, it says law firms can afford to take on such cases only if they can bill at their professional rates. It says few other people are willing to do the work in Virginia. Some areas have a public guardian system for the elderly, but it serves only the poor.

“It will have a significant chilling effect on the willingness of attorneys to serve as independent guardians and conservators if they can’t charge their professional rates,” said NMP’s attorney Bernard DiMuro.

NMP got involved when the Drakulich children couldn’t agree on their parents’ care.

The Drakuliches’ children realized their parents could no longer care for themselves, so Drakulich-Clarke’s sister petitioned the court to be her parents’ guardian and conservator. The move was opposed by her brother.

So they went to court, and the judge appointed the law firm.

At the heart of the dispute is what NMP charged for their guardianship duties.

Drakulich-Clarke said she was floored when she opened a letter from NMP showing the fees for the first 16 months of her parents’ care: $70,000. NMP billed at $95 an hour to fill out Social Security forms and obtain bank balances, and at $105 an hour to call a plumber and check information on the Department of Motor Vehicles Web site, according to billings.

Overall, NMP charged between $85 and $125 an hour for personal care services in the Drakuliches’ case. The pattern of billing was similar in the other six disputed cases.

NMP has defended these rates, saying they were authorized by the initial appointment order. The firm also says it often used its lowest available rate, billing services at the rate of a legal assistant rather than attorney.

In other guardianship cases, however, Virginia lawyers have contracted out such routine services to low-cost providers. For instance, Jean Galloway Ball, another Fairfax lawyer who handles guardianship cases, says she contracts out such work to a retired teacher for $25 an hour. Arlington elder-law lawyer Kelly Thompson says she uses care providers who charge $20 to $40 an hour for such tasks.

In 2007, Drakulich-Clarke wrote a letter to John Rust, who is Fairfax’s fiduciary watchdog, complaining about the fees. That prompted NMP to charge her parents $975 to respond. It also jump-started Rust’s review.

In 201, as Rust was combing through NMP’s billings, Jeanne Drakulich died.

In 2011, Rust issued his findings that NMP had overbilled the seven wards.

Rust concluded that it was not “reasonable” for NMP to charge legal rates for personal care and that there was a fundamental conflict of interest at the heart of most of the cases: NMP controlled its wards’ purse strings and employed itself to perform many of the guardianship tasks.

Rust demanded that NMP return nearly $46,000 in the Drakuliches’ case among the $229,000 in overbillings for the seven wards. Rust declined to comment because litigation is pending.

NMP challenged the order in Fairfax County court, and Fairfax County Circuit Court Judge Leslie Alden ordered a full review of the billings.

In July, Alden largely sided with Rust, ruling that charging legal fees for nonlegal guardianship work was unreasonable and that the watchdog could require NMP to refund the money. Alden did say that NMP had done work that was necessary and appropriate for the wards.

Alden tasked Rust with determining a proper rate for nonlegal guardianship work performed by NMP, which observers said could become a benchmark in the state. She ruled out the wards having to pay for NMP’s legal bills for the case.

DiMuro said NMP is appealing the ruling to Virginia’s Supreme Court — a move backed by many lawyers in Virginia.

Drakulich-Clarke said she is eager to learn if the Virginia Supreme Court will take up the case, but she also is anxious. She fears that NMP will further eat up what remains of her parents’ estate as the case plays out.

“NMP did not hurt my parents in the sense that it made them destitute,” Drakulich-Clarke said. “But they carefully calibrated so there would have been nothing left in their estate when they were gone.”