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WHY PROBATE COURTS CONSISTENTLY FAIL US

For years I have written about the shortcomings in our equity legal system particularly in probate guardianship. Having just celebrated National Elder Abuse Awareness Week, this is a good time to recall what makes equity probate court and the guardianships it creates such an enormous disappointment and in far too many cases a blatant fraud.

The political system and money

Equity judges generally are elected by the public who knows essentially nothing about them. Their candidacies are preapproved and prearranged by both the BAR and political parties. They are not selected on the basis of their judicial records, expertise or history of honesty and fealty to the law. Like every politician, judicial candidates need to have and raise money. Much of that money comes from people who are directly involved in the day-to-day workings of the court including lawyers, guardians and other businesses who court favor with these judges and their opinions. In some situations, it appears that the candidate has to raise significant amounts of money to even be considered or get a judicial recommendation from a political party or the BAR.  Money and the influence it buys have a corrosive effect on the judiciary and the likelihood of the unsavory relationship between the parties ever being exposed is near zero.

Also, a study of retiring probate judges in Florida showed that almost every one of them became a millionaire or better while in office in addition to receiving a generous taxpayer funded full pension. How they became so wealthy on a salary of less than $150,000 per year is perplexing, unless there are “special” money making opportunities for these judges.

Many retired on that pension only to rake in full salaries for becoming mediators.

Absence of accountability, monitoring or supervision

As has been documented ad nauseum, equity court judges have essentially no supervision or monitoring from any agency or higher authority. Only when the judge acts in an incredibly egregious fashion such as coming to work drunk repeatedly, or commits the cardinal sin of stupidity by co-mingling campaign and non campaign funds is there even the most remote possibility of censure or even a slap on the wrist by the two nearly indistinguishable entities that control all State courts, namely the supreme Court of the State and the BAR or agencies like the Judicial Qualification commission. No other profession does such a horrendous job of self-monitoring and discipline. BAR members and guardians are the only two professions that do not require a license in the state of Florida or some other states.

Judicial immunity

The doctrine of judicial immunity makes it impossible to sue judges except in the most extraordinary circumstances. No other occupation in the country enjoys this privilege, not even the President of the United States. Any mistakes a judge makes, any peculiar decisions he reaches and anything he does within his courtroom can never come back to haunt him. The latitude these judges are given is without limit and free of any possibility of redress from victims whose only option for disagreeing with the judgment is to go before yet more judges with expensive and likely unsuccessful appeals.

To make matters worse, the federal government is essentially prohibited from inserting itself into state court matters of inheritance by among other things the probate exception and Rooker Feldman doctrine, so federal oversight and monitoring is effectively precluded.

Loopholes in  statutes and probate rules

The statutes concerning guardianship are constructed and approved by lawyers and the BAR. They contain words like may and shall rather than words like must and will, creating loopholes for lawyers and judges to slip through. Further no statute or revision to the statute passes through the legislature without the direct approval of the State BAR whose primary interest is in the financial well-being of its members. Furthermore, probate rules like those in Florida are written by court insiders are looking to supplant statutes when there is any conflict between probate rules and existing statutes. In some states including Florida there are moves afoot by RPPTL and Elder lawyers who practice in probate to rewrite the entire guardianship statute into a profitable business model for their members. The interests of family members, victims and an unsuspecting public are lost in those efforts.

No rules of procedure, no rules of evidence, no due process, sequestration

Because of the latitude provided equity probate Judges, it is typical for them to deny jury trials, ignore due process and notification of proceedings, suspend rules of evidence and generally act as if court were their unassailable private fiefdom. This makes proceedings in these court rooms outrageously unpredictable, unrelated to evidence or the law. To make matters even more egregious, these cases are relegated to the category of mental health matters and therefore can easily be sequestered and hidden from public view.

Negating Advance directives

Millions of Americans have followed traditional legal advice and spent enormous amounts of money creating advance directives which give instructions on what their choices would be in the event of their incapacity. Nothing is more egregious in these courts of equity than the propensity to obviate or ignore or simply reject well-established perfectly created advance directives in favor of creating a guardianship that will profit court insiders.

Improper ex parte meetings

Even though meeting with one side in secret is clearly prohibited by any canon of judicial ethics, ex parte meetings in probate guardianship cases are routine. What is amazing however is that these meetings occur with almost little lead time or delay for well-known court insiders but can take weeks or months to arrange properly from those outside the court’s inner circle.

Outrageous sanctions

Once the judge makes up his mind which side of the issue he wants to be on, litigants who oppose him aggressively and their attorneys are all too often silenced and abused by threat or actual imposition of monetary sanctions, or in the case of an attorney possible ruination of his career.

Bogus records and transcripts

The transcripts of court provided reporters have been found to differ substantially from private court reporters listening to the same hearing, in addition, all too often important documents seem to appear and disappear out of official court files an all too frequent basis.

Hearing only one side of the story like a special prosecutor

Unlike the American standard of innocent until proven guilty, the so-called evidence presented to impose the court ordered state of incapacity is all too often presented as though it were being offered by a special prosecutor in that only one side of the story is allowed to be heard. The judge can and almost always does suppress any evidence that does not conform to the reports of the court-appointed examiners who have their own conflicts of interests in this system.

Court insider advantage

The reality that plum guardianships are excessively handed over to court insider favorites is undeniable. The courts have managed to make it even easier to make sure that only a select group of guardians are afforded the opportunity to take over large estates by creating “wheels” which include only the court insiders. The system is tilted towards creating too many wards and  the appointment of court insiders even when perfectly acceptable family members are available to serve.

Allowing staged litigation leading to court logjams

Judges have it within their power to short-circuit obvious staged litigation in cases with large amounts of assets in play. But all too often, they do not. Pointless repetitive depositions and  hearings about inconsequential irrelevant issues that serve only to enrich litigators not only create spurious bills from lawyers and guardians but create logjams within the court system that delay justice, massively increase costs for all concerned and do nothing for the care or protection of the allegedly incapacitated person or ward or their estates.

Advocates from around the country have seen their concerns and complaints about these courts fall on deaf ears for decades. Attempts at rewriting or replacing the statutes, demanding change in the probate rules, demanding accountability from judges, the BAR or legislature have met with enormous resistance to change. It is unreasonable to think that this system can be fixed from within or that the business model of the lawyers who practice in the system will ever be tamped down by limits on legal fees or guardian fees.

But when enough of the public becomes aware that the court system they place their faith and trust in as good citizens of the United States of America is potentially the cause of their ruination, then and only then will there be a hue and cry loud enough to create a system that is less egregious, more efficient, less corrupt, more humane and just to deal with what promises to be a flood of new individuals who have cognitive decline in the upcoming silver tsunami.