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Benchmarks: Journal of the New York State Unified Court System


The Commission on Fiduciary Appointments, a blue-ribbon panel appointed by Chief Judge Judith S. Kaye, released its findings in a February report calling for further changes in the appointment and monitoring of certain fiduciaries in the state courts.

The 14-member panel of lawyers and judges, chaired by attorney Sheila Birnbaum, was asked to propose ways to improve court oversight of individuals appointed to make financial and personal decisions for the elderly and incapacitated, as well as persons appointed to assist in the administration of estates.

The Commission issued its first report in December 2001, calling for an overhaul of the fiduciary selection process and recommending that the Commission be reconvened in the future to assess progress and the need for additional reform. Comprehensive new rules relating to fiduciary appointments have since been adopted. In January 2004, Judge Kaye asked the Commission to reconvene and continue its work.

The latest recommendations come following the conviction of an attorney who, in his capacity as guardian, systematically stole $2 million from the estates of numerous wards over a five-year period. The crimes went undetected in part because fiduciaries known as court examiners did not exercise adequate vigilance in reviewing the attorney's work, and because of other systemic gaps in oversight.

An estimated 3,000 guardianships are filed annually in New York, while approximately 18,500 guardianships are pending in the state courts at any given time. Guardianships can last for many years, depending on the health of the ward.

The Commission recommended that the judiciary establish offices of "court examiner specialists" to oversee court examiners and ensure that the necessary accountings and procedures are properly followed; the annual compensation limit for court examiners be raised to $75,000 to help attract and retain competent individuals; and official forms be adopted for guardianship proceedings across the state.

Aside from its recommendations for guardianship proceedings, the Commission proposed new rules disqualifying certain categories of individuals from serving as public administrators (individuals appointed to administer an estate when there is no one else to serve in that capacity) or their counsel. The Commission also endorsed amending the Surrogate's Court Procedure Act to establish binding fee schedules governing fee awards to the counsel to the public administrator. Surrogates would be required to file publicly available reports with the Office of Court Administration of all awards and legal fees earned by such counsel exceeding $500. The complete report can be found at: www.nycourts.gov/reports.

Spring/Summer 2005PDF Format
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