SB 1499 should be killed, and HB2424 passed without further delay, with one amendment: quarterly reports in the first year, semiannual in the second, and annually in the third and subsequent years of a guardianship or conservatorship, because fiduciary fees are out of control. All "Interested persons" should receive copies, without having to apply for same, and "interested persons" will do a better monitoring job than the courts would or could.
One need look no further than the Marie Long case and the outrageous and obscene fee billings by the fiduciaries to know that there must be a cap on attorney fees in the probate courts.
If family law was the "bread and butter" of the Bar, then guardianship and conservatorship may be the new "caviar." The purpose of HB2424 is to put a cap on fees, and the purpose of SB1499 is to create a total management plan in favor of continued asset bleeding.
The word "vexatious" in SB 1499 is a very red flag. It tells us that that section of the Bill on fees is drafted solely to harass or subdue an adversary - the family -to shut them out of court by means of financial harassment and punishment.
Never in our experience do we hear of probate lawyers being tagged as "vexatious" litigants. The Senate version of a probate remedy sounds like a euthanasia Bill for families! It is a total put-down to any attempt by the family to fight unlawful and abusive guardianships and conservatorships.
The dirty secrets are all out - there is no reform that can help protect the greedy fiduciaries any longer. The probate courts must clean up their act - not by statutory tricks such as in 1499, but by imposing fee caps on the "caviar-consuming" lawyers, by applying the existing statutes properly,and protecting the civil liberties and human rights of the wards and their families. Retaliation by a guardian in prohibiting visitation must be met with quickly and severely.
Wow! The Senate version looks like bad news!
ReplyDeleteAny guesses as to who is influencing the intent and preadotory language of the Senate's version?
ReplyDeleteWhile we pay their salaries and benefits to get screwed over folks I hate to be blunt but if the Senates version is not killed you might as well .......... bend over and empty your pockets.
Determining Reasonable Fees
ReplyDelete6. An applicant for fees shall discuss the financial circumstances of both the incapacitated person and the plaintiff in determining whether fees should be awarded.. Of course, the financial needs of the incapacitated person will affect the size of the fees awarded or example, if the incapacitated person requires placement in an assisted-living facility that does not take Medicaid, that person will need to preserve his or her assets more than an incapacitated person who requires placement in a nursing home and who will qualify for Medicaid. While there are times when fees cannot be paid until one or more of the incapacitated person’s assets are sold, the attorney should consider asking for the fees to be paid by the guardian within a given number of days, for example 45 days from the date the judgment is signed. It is not uncommon for it to take awhile for plaintiff’s attorney to obtain the bond, but guardians may also dawdle somewhat in getting qualified. Making the payment of fees to the physicians or physician and psychologist who performed the examinations and the attorneys a priority within a reasonable time frame is fair to all.
Guardianship Applications and Attorney’s Fees by Brenda McElnea New Jersey Law Magazine August 2010
•Financial Exploitation of it’s most vulnerable populations
•Over charging of services for the Disabled
• Creating Social Services and program Dependency
With regard to payment by the court appointed guardian, the author suggests that the judgment state not only the
amount to be paid to each attorney and physician, but also that each be paid within a given number of days, such as
60 days. This encourages the guardian to promptly obtain a bond and make the payments ordered by the court. The
duty of the guardian of the estate is to locate the assets of the incapacitated person and pay his or her creditors. In
the event the guardian does not make timely payments, the author has contacted court-appointed counsel regarding
the issue and asked that attorney to intercede. If payments still are not forthcoming, court-appointed counsel can be
asked to report this failure to the court and have the guardian discharged for failure to perform his or her duties.
Guardianship Applications and Attorney’s Fees by Brenda McElnea New Jersey Law Magazine August 2010
Financial Exploitation of it’s most vulnerable populations
Over charging of services for the Disabled
Creating Social Services and program dependency
Civil Rights violations of the Disabled and their families
Social Services and program Dependency
Isolation and dehumanization of the Disabled population
Discrimination and bigotry towards the Disabled
All the Senators in Every State should see "Win Win" and view quotes from the August 2010 Law Journal ......... Fraud Upon the Court
ReplyDeleteVideo:
WIN WIN: At the Sundance Premiere
http://link.brightcove.com/services/player/bcpid650822280001?bckey=AQ~~,AAAAAEMbXQc~,cIf7wfs6h5s76vSG_NYjnVOily_IHYQ7&bclid=0&bctid=781641943001
Determining Reasonable Fees
6. An applicant for fees shall discuss the financial circumstances of both the incapacitated person and the plaintiff in determining whether fees should be awarded.. Of course, the financial needs of the incapacitated person will affect the size of the fees awarded or example, if the incapacitated person requires placement in an assisted-living facility that does not take Medicaid, that person will need to preserve his or her assets more than an incapacitated person who requires placement in a nursing home and who will qualify for Medicaid. While there are times when fees cannot be paid until one or more of the incapacitated person’s assets are sold, the attorney should consider asking for the fees to be paid by the guardian within a given number of days, for example 45 days from the date the judgment is signed. It is not uncommon for it to take awhile for plaintiff’s attorney to obtain the bond, but guardians may also dawdle somewhat in getting qualified. Making the payment of fees to the physicians or physician and psychologist who performed the examinations and the attorneys a priority within a reasonable time frame is fair to all.
Guardianship Applications and Attorney’s Fees by Brenda McElnea New Jersey Law Magazine August 2010
•Financial Exploitation of it’s most vulnerable populations
•Over charging of services for the Disabled
• Creating Social Services and program Dependency
With regard to payment by the court appointed guardian, the author suggests that the judgment state not only the
amount to be paid to each attorney and physician, but also that each be paid within a given number of days, such as
60 days. This encourages the guardian to promptly obtain a bond and make the payments ordered by the court. The
duty of the guardian of the estate is to locate the assets of the incapacitated person and pay his or her creditors. In
the event the guardian does not make timely payments, the author has contacted court-appointed counsel regarding
the issue and asked that attorney to intercede. If payments still are not forthcoming, court-appointed counsel can be
asked to report this failure to the court and have the guardian discharged for failure to perform his or her duties.
Guardianship Applications and Attorney’s Fees by Brenda McElnea New Jersey Law Magazine August 2010
Financial Exploitation of it’s most vulnerable populations
Over charging of services for the Disabled
Creating Social Services and program dependency
Civil Rights violations of the Disabled and their families
Social Services and program Dependency
Isolation and dehumanization of the Disabled population
Discrimination and bigotry towards the Disabled
I agree. SB2424 should pass and the Senate bill should be killed.
ReplyDeleteDo the Senate lawyer-legislators practice elder law?
ReplyDeleteI absolutely agree! HB2424 has to pass!
ReplyDeleteApplause to all those who are sacrificing and fighting for HB2424
ReplyDeleteI admire your moral character and your relentless efforts all for the right reasons. Thank you so very much.
Go HB2424!
ReplyDelete