New York State Office of Court Administration
December 2001

Reviewed by Loree Cook-Daniels

Guardianship is a tool that can both harm and help elder abuse victims, depending largely on the guardian’s ethics.

Although the report writers do not explicitly characterize them as “abuse,” the misdeeds of the lawyers, accountants, and other professional guardians catalogued in two reports from New York would certainly fit most elder abuse workers’ definitions of “financial exploitation.” Consider:

• One lawyer received $1,275 from a ward’s assets for accompanying her (along with one of his employees) on a walk to buy an ice cream cone.

• In one year, one attorney/co-guardian received $65,000 out of a ward’s estate (at the rate of $250/hour) for tasks such as visiting an eyeglass store, attending a holiday party, and sewing and ironing labels on the ward’s clothing.

• Another guardian billed $300 per month for depositing the ward’s $50 social security check.

• In a case that ultimately cost an estate nearly $1.5 million in fees for court-appointed guardians ad litem and their assistants, a fully-employed Deputy Public Administrator billed 167 hours of legal work (at $215/hour) over 22 days, or an average of almost 8 hours per day.

Cases such as these (and many more) are detailed in reports produced as a result of Chief Judge Judith S. Kaye’s decision in 2000 to oversee reform of New York’s fiduciary appointment process. Her decision seems to have been sparked by public outcry when two Brooklyn lawyers (one the son of a sitting Brooklyn Supreme Court Judge) sent a widely-distributed letter resigning from the Brooklyn Democratic Law Committee. The two complained that they were no longer getting the lucrative fiduciary appointments they felt they deserved because of their “diligent work and unquestioned loyalty” to the Brooklyn Democratic Party.

One report, prepared by the new Office of the Special Inspector General for Fiduciary Appointments, is available at www.courts.state.ny.us/fiduciaryreport/igfiduciary.html. The second report, by the newly-established Commission on Fiduciary Appointments (available at www.courts.state.ny.us/fiduciaryreport/fidcommreport.htm), also contains recommendations for reforms. These recommendations include:

• Fiduciary appointment rules should clearly provide that criminal offenders and disbarred or suspended attorneys are ineligible for appointment.

• Additional types of appointees (such as lawyers and accountants advising the guardian) should be governed by court fiduciary rules.

• Attorneys should not contribute to judges’ campaigns for the purpose of receiving fiduciary appointments.