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Law School Clinic Suggests Improvements for Guardian System
New York Law Journal
A law school clinic is calling for improved monitoring, standardized forms and procedures and a statewide task force to promulgate best practices and remedy deficiencies in the way the state provides guardians for incapacitated persons.
"We know there's a lot of concern about the guardian system and making sure people under guardianship are served properly," Rebekah Diller, director of the guardianship clinic at the Benjamin N. Cardozo School of Law, said in an interview. "We wanted to marshal that concern and develop an agenda for moving forward to make sure the system serves everybody in the way that it should."
Diller cited the recent guilty plea of a Brooklyn attorney, Ray A. Jones Jr., who had been charged with second-degree grand larceny for stealing money from a ward.
Jones' case, said Diller, "shows us we still have a long way to go to make a more accountable process. It shows there can be systemic failures that can be addressed."
The report, which is being released on Dec. 3, scrutinizes enforcement of Article 81 of the Mental Hygiene Law, which aims to create a system "which is appropriate to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person."
Its authors say that "Article 81 wasand remainsa model guardianship statute in many ways," crediting its due process protections and reporting requirements for guardians.
Nevertheless, the report says that "noteworthy challenges remain" 20 years after the enactment of Article 81.
For example, there have been "periodic scandals" of guardians abusing their position, delays in proceedings and "[a] dearth of resources and services" for families that cannot afford counsel.
Against that backdrop, the report"Guardianship in New York: Developing an Agenda for Change"lays out a list of recommendations culled from a conference at Cardozo last year.
It urges creation of a task force that "would be charged with identifying key policy and practice issues and making and implementing recommendations for reform."
Missouri and Ohio already have similarly-focused task forces in place, Diller said.
The report notes many of its recommendations have been "suggested repeatedly by various experts," but never put into practice.
"Without a standing body to identify key policy and practice issues and to coordinate reform implementation, change is not likely to occur," the report says.
The report also notes a widespread and longstanding call for guardianship forms to be "standardized, simplified and made accessible to the public."
The current lack of standardization, the report observes, makes it difficult to train lay guardians on reporting obligations and creates problems for attorneys handling cases in different counties.
The report notes that while guardians have to visit their wards four times a year and report back to court examiners, neither court personnel nor court examiners necessarily check to see how the wards are doing.
To address that issue, the report recommends a pilot program where volunteers visit people under guardianship.
"Should the pilot prove successful, a longer-term goal would be the establishment of a not-for-profit organization dedicated to interdisciplinary monitoring of guardianships," the report says. "Such an organization would help train and supervise students from disciplines such as social work, law and accounting, retirees and other volunteers."
It also suggests that a Guardianship Ombudsman Office be established.
Diller said she was "optimistic" the reportmeant to reach court officials and lawmakerswould spur changes because it comes at a time when consensus was forming "that there are real ways to improve the system."
The report acknowledges that some of its recommendations would be "major changes." But its says that many of its suggestions were "operational tweaks that could be fairly quickly accomplished with great benefit to parties and the courts alike."
One such tweak, said Diller, would be to post simplified and standardized forms online, which "can be done relatively cheaply and relatively easily and could make things much more accessible for a lot of people."
@|Andrew Keshner can be contacted at email@example.com.