Policing Probate Courts: A National Need

Policing probate court
The Connecticut Post by Frank Juliano  -  May 28, 2011

Probate court judges in the state are elected for a four-year term, work part-time hours and usually also have a private law practice. Until a recent reorganization, they were paid a percentage of the value of the estates they processed. There have been several high-profile cases in recent years of probate judges accused of abusing their power or improperly enriching themselves.  Yet, when the courts were reorganized last year, reducing 123 probate districts to 59, including five regional children's courts, little was done to change the way that they operate.  Judges in Branford, New London, Middletown, Westbrook, Portland and Southington have had complaints filed against them to the Council of Probate Judicial Conduct in the past eight years. When the council took the rare step of publicly censuring Southington judge Bryan Meccariello last September, Meccariello withdrew his re-election bid and is no longer serving.  John Fertig, who had been the probate judge in Oxford for 21 years before the districts were consolidated, said that one of the changes made by the recent law is that probate judges are now paid according to a formula that considers how large a population they serve and how much work they usually do.  "The billing system is still the same," he said. "There are application fees and a percentage of a decedent's estate," he said. "The only difference is that the money is sent up to Hartford and checks are sent out to the judges and clerks."  One of the criticisms sometimes heard about probate judges is that they tend to hire the same people to serve as conservators of estates and of people too incapacitated to handle their own affairs. Conservators pay the bills and manage the assets of the estate. Fertig said the same people tend to get that work "because you reach a certain comfort level with someone. There is a list that you are supposed to draw from on a rotating basis but some of them were not very good and I'd scratch them off," Fertig said. "You tend to avoid going outside of the people you know."  The code of ethics for probate judges forbids them from hiring other members of their private law firms from serving as guardians or conservators in their courts. Judge James Kinsella ran afoul of that rule in 1983 and was referred for impeachment by the Council on Probate Judicial Conduct.  The council didn't tell Meccariello that he had to withdraw from the race last year, said Richard Banbury, an attorney who is also the executive director of the Council on Probate Judicial Conduct. "But other people did, to avoid giving a black eye to the profession."  The council had found that Meccariello replaced the person a dying woman had chosen as her conservator with a friend of his. The new conservator set up two trusts and funneled the assets of the estate into them, bypassing the woman's chosen beneficiaries.  Banbury said that his disciplinary panel has received between 18 and 24 complaints about probate judges in the past seven years.  "They break down into two categories," he said. "We can give a private reprimand for what we'd consider `venal sins,' basically telling the judge: `You shouldn't be doing that.' We can hold public hearings and censure judges for misconduct, for the hardcore violations, but we have few of these, maybe one a year."  Fertig said there have been bad judges, "but not that many. Those are the cases that people jump on and they usually come out of a situation where no one was paying attention. When they happen, it's because there is a smell of money around, or a family member isn't happy with a decision."

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Probate cases: Volatile mix of law, emotion
The Connecticut Post by Frank Juliano  -  May 31, 2011

A brother and sister fight over which one of them their mother will live with. A nursing home and the family of a deceased patient fight over the amount of money spent on the woman's funeral. And two cousins of a man who never knew them fight for a share of his estate. Family battles that can't be resolved privately usually end up before one of the state's 59 probate court judges, with lawyers, social workers and sometimes medical professionals in tow. The issues laid bare in court often involve the difficulties of caring for aging relatives, who gets control of assets and who cares for a child. The courts have the power to remove unfit parents as the guardians of their children; commit people with severe psychiatric disabilities to an institution; determine the paternity of children born to unwed mothers; order the sterilization of profoundly mentally retarded people; and interpret contested wills. Adoptions and guardianships are also handled by the courts.

Who does Mom love more?

The issues are intensely personal, and often, the real emotions underlying the conflict have to do with unresolved hurts that started at family dinner tables and backyard playgrounds years before.  "We call it `fighting in the sandbox', and what the fight really comes down to is: `Who does Mom love more?' " said attorney Greta E. Solomon.  And court dockets are full. Some contested hearings, said Judge Daniel F. Caruso, Fairfield's probate judge since 1994, are "a lot like sitting around the table at Thanksgiving. The family dynamics are on display. It's like a Shakespeare play sometimes, a story as old as man.''  Solomon said she is handling a case now where one sister won't tell the other what is going on with their mother and the law is unclear on the matter, which often complicates difficult probate issues even further.

Resolving family feuds

Often relationships between family members are so strained that squabbles break out right in the court room. Judge Beverly Streit-Kefalas held several hearings recently in Milford Probate Court trying to determine whether an elderly woman suffering from memory loss is a legal resident of Milford, where her son lives, or Florida, where her daughter wants to care for her.  The sister accused her brother of "granny-napping'' their mother, keeping her in his Milford house when the women were planning to return to Florida together. Several times the judge had to admonish the siblings to behave and to stop interrupting one another. And mother herself was no help at all. When the judge asked the woman where she'd like to live, he said: "I love all of you equally. I don't want to be without any of you.'' It was unclear whether she included Streit-Kefalas in that verbal embrace.  Judges say planning can prevent many cases.

Money disputes

During one recent hearing, Caruso sat at the head of the table, a genial, avuncular host to a phalanx of lawyers. A woman had died in a local nursing home having recently been declared eligible for state Medicare under Title 19. But she hadn't completed "spending down'' her personal assets when she died, and her children had exceeded the $5,400 the state allows in using the woman's funds for the funeral.  At issue was whether the heirs have to repay it to the state so it could be applied to the $200,000 still owed to the nursing home. Caruso said that the adult children failed to take several steps that could have protected both themselves and the health care facility from a financial loss. But the heirs have so far failed to provide the state Department of Social Services with an accounting of their mother's estate.  Of all the cases judges hear, conservatorships may be the most vexing of all, they say.  "You are basically asking the judge to take away some or all of a person's ability to make decisions, " said attorney Michael W. Mackniak of Naugatuck, who is also the executive director of Guardian Ad Litem Services and its off-shoot, Melissa's Project that provide representation in probate court for people with severe mental illness or retardation. "There is a lot of emotion involved and sometimes a family member may act in his own best interest, not in the interest of the conserved person.''

Special cases

A 2007 law, which hasn't yet been tested in Superior Court, gives probate judges jurisdiction not only over residents, but someone "located'' in the state who can't take care of his own legal or physical needs has added to the complexity of conservatorship cases, said Mackniak. The change effectively means that if someone is injured in a crash on I-95 in Bridgeport and is unable to represent himself, the matter would be handled by the Bridgeport Probate Court.  In one Waterbury case, an elderly man became ill while visiting his daughter and a conservator appointed by the probate court decided it was in the man's best interest for him to be admitted to a local nursing home. It took 10 months and a state Superior Court order before he was able to return to his home.  "That case blew up in all the wrong places,'' Mackniak said. "But I don't know what the alternative was."  Some difficult probate cases involve a person's right to determine their own course of action, even if it means they will hurt themselves in some way.

Fairness in the face of reality

One such case is pending in New Milford probate court involving a mentally ill young man who lives in his father's basement. When his father spends winters in Florida, the man is alone.  "This guy basically barricades himself in the basement. He won't let anyone help him and he can be violent. He was treated in a hospital for malnutrition and is now in a residential program, but he's refusing to shower and he wants to go home,'' Mackniak said. "Here's the issue: do we have to respect his right to slam the door in our face? Or would it be negligent of me to leave him in his psychosis?''  Often what is fair in the law doesn't seem fair in the face of reality.  Caruso was recently asked to decide whether two cousins of a dead man they had never met and didn't know existed could share in his estate. Complicating the case was the fact that these cousins were on the dead man's father's side of the family and the father had abandoned the family. His only known living relatives were two cousins on the mother's side of the dead man's family, and Caruso had already made them the heirs. In a 15-page decision the Fairfield probate judge ruled that the estate had to be split four ways. No law allowed the exclusion of the two additional cousins, who had come forward after seeing the obituary.  "Accordingly... they must share in the estate of this person,'' the judge wrote in his decision, "they neither knew nor loved."  Reach Frank Juliano at 203-520-6986 or fjuliano@ctpost.com Follow him at http://twitter.com/FrankJuliano or blog.connpost.com/juliano