My last post, which was an embarrassingly long time ago, passed on an article printed in the Denver Post. That article detailed a review of Denver Probate Court records, an audit of state probate courts, and covered cases of guardianship or conservatorship that had in some way gone wrong.
A Colorado attorney familiar with the Denver Probate Court made the following observations about the post and the Denver Post article:
Sadly, as much as the court tries to do on the matter, there just aren’t enough resources and the public does not support the use of more resources for oversight on these cases. If there were a team of auditors, then that would be fantastic. I hold Judge Stewart in the highest professional regard as a person, attorney, and judge, and think that she’s in an impossible position on this issue. Unfortunately, it is the rogue or non-compliant lay person fiduciaries that usually spoil the entire lot. These newspaper articles that pop up every couple of years detailing the court’s failures don’t tell the entire story, and I think, are much too one-sided.
There have been hiring freezes on and off in the Colorado courts since [2002]. It is a crippling reality that hamstrings the courts, and how the judges can best serve the public. If the issues you discuss are that important to the public and government, then they would find a way to fund oversight through the judicial branch. Again, if there is no public outcry, these types of issues become the status quo. The court staff are expected to take on more and more responsibility without a pay increase, and there is no way that is going to be sustainable.
My original post was focused on the inevitable tightening of report monitoring when this kind of article comes out. But the reader raises a couple of key points with regard to the underlying issues.
The first is that it is ultimately the appointed guardian or conservator who is responsible for protecting his or her ward. As with any other fiduciary, it is up to that individual to discharge the duties of the office in the best interests of the person he or she represents. Court oversight is important to ensure that initial bad selections, however they happen, are screened out. The reality though is that an institutional monitoring system is never going to be responsive enough to stop people in a position of trust who want to steal from those they are supposed to protect. That would require court personnel providing real time monitoring for spending decisions.
But more to the point, the allocation of public resources to the judicial branch from the legislative branch is the ultimate public policy expression of our priorities on this (and any other) topic. While it is fine to want more court oversight of appointed fiduciaries, it is necessary either to provide the funding to accomplish those goals or to sacrifice current services to free up staff time. As Judge Stewart points out in the article, the guardianship tracking database has not been funded and her staff is depleted (and under the hiring freezes likely cannot be replaced.) The State Court Administrator’s office cannot provide meaningful tracking information state-wide because different codes are used in different ways. As the available staff hours decrease and the workload increases or remains the same, the Court is faced with the decision allocating those resources. This decision could realistically translate into whether to provide court services to current litigants or provide monitoring of filed reports.
In this time of fiscal crisis and mandatory balanced budgets, our priority, as expressed through our funding, is not on monitoring systems — or even court personnel. In order to provide more regular reporting in order to catch those abusing the system, those funding priorities will have to change.
