Saturday, September 5, 2015

Ohio Supreme Court can’t investigate corrupt guardians, chief justice says

Ohio Supreme Court Chief Justice Maureen O’Connor
Ohio Supreme Court Chief Justice Maureen O’Connor is pushing back against more calls for the court to increase its scrutiny of the state’s guardianship system, the same system that Ohio’s attorney general said is “crying out for reform.”

O’Connor said on Thursday that the scrutiny should instead come from county probate judges.

O’Connor made headlines last week after blasting The Vindicator newspaper of Youngstown for requesting in an editorial that she appoint someone to investigate Mahoning County Probate Court and its former judge, Mark Belinky.

Belinky, who resigned from the bench last year, has been convicted of tampering with records. The Vindicator reported that he has admitted to investigators to stealing from wards for whom he was guardian, altering Probate Court records to hide those thefts and creating false records.

“You’re asking me to investigate criminal behavior, and I have no authority to do that,” O'Connor said in response to the paper’s request. “You’re giving the public the impression that the Supreme Court will be the investigators, judge, jury and executioner. That is a misconception the public has about the role of the court.”

Advocates and lawyers said that while the court does have the power to handle complaints, it cannot insert itself into a criminal investigation of a judge because it might have to rule on the matter later.

“I would agree with Justice O’Connor in (that) the court can’t do that,” said Susan Wasserman, a lawyer and one of Ohio’s two master guardians. “But there is also a need for further protection of wards, and that can come from elsewhere.”

The Supreme Court does have investigatory tools at its disposal, such as its disciplinary counsel. The counsel investigates complaints and allegations of wrongdoing against judges and lawyers and can revoke or suspend their licenses.

Wasserman said legislators in states such as California have created a statewide Professional Fiduciaries Bureau that licenses and regulates conservators, guardians, trustees and other agents who control the assets of another person.

Wasserman said county prosecutors should handle criminal investigations of probate courts.

Belinky’s actions are similar to those of Paul S. Kormanik, a former attorney in Franklin County who last month pleaded guilty to stealing from four of his wards and tampering with records. He will be sentenced in October.

Action by the court is something the public, elected leaders and advocates demanded after a five-day Dispatch series, “Unguarded,” that detailed a broken guardianship system administered by county probate courts. The system controls the lives of more than 65,000 Ohioans deemed incompetent to care for themselves.

The lack of safeguards, base-level recordkeeping and inaction by guardians and judges subjected thousands of wards to physical, verbal and financial abuse.

Ohio Attorney General Mike DeWine said he was “appalled” by the actions of guardians and called for reforms. DeWine’s office has since created a handbook to guide guardians.

During her condemnation of The Vindicator’s call for a Supreme Court investigation, O’Connor asked rhetorically “Why just stop at Belinky?”

“Why doesn’t the court, under your scenario, (investigate) every judge I get an anecdotal tidbit about?” she said. “When would it stop?”

The Dispatch investigation also uncovered that a committee formed by the Ohio Supreme Court spent eight years trying to come up with new, stricter rules to fix holes in the probate system that led to abuse.

The court enacted those standards this year, mandating that probate courts for all 88 counties implement new training, monitoring and background checks. Guardians also must meet with their wards every three months.

The new standards fell short of enacting new guidelines that would better protect wards from financial exploitation, theft and losing their cherished possessions. The rules don’t protect wards from unscrupulous guardians such as Belinky.

O’Connor said that the new rules, if enforced properly by the courts and followed by guardians, will protect wards from most wrongdoing.

“If courts can’t enforce these rules because they are overwhelmed and underfunded, then that is a legislative issue and there needs to be discussion of more funding,” she said. “This shouldn’t be about trying to tar the probate courts or the (Supreme) Court — judges are trying to do the best they can.”

O’Connor said she was unfamiliar with the fiduciary board in California and could not comment on its merits.

Michael Kirkman, director of the nonprofit Disability Rights Ohio, said he agrees O’Connor shouldn’t insert the court into a criminal matter it might have to rule on later.

“But it does point out there might be a level of oversight lacking in the probate courts,” he said. “I think the new rules are a baseline and that’s important. You’re dealing with a system that hasn’t been well regulated for a number of years.”

Full Article & Source:
Ohio Supreme Court can’t investigate corrupt guardians, chief justice says


tvfields said...

This article demonstrates once again that legal professionals do not want to take responsibility for ensuring that other legal professionals and their surrogates (ex. guardians) behave honestly.

With the above in mind, I will recall here how the chairperson of Ohio's Elder Abuse Commission told a statehouse reporter in 2012 that the Commission had decided that the concerns which I had raised to the Commission in 2009 needed to be addressed by the Ohio Supreme Court's Subcommittee on Guardianships, ignoring the fact that the representative of the Subcommittee, who was also a member of the Commission, had repeatedly stated that those concerns did not belong before the Subcommittee. As of today, neither the AG's Commission nor the SC's Subcommittee has done anything that is needed to responsibly address those concerns.

Representative government provides the public the tools needed to correct this problem. Unfortunately, the public lacks the leadership needed to do so. Contributing to this lack of leadership is the mass media, which I blame for the fact that most Ohioans are unaware of the Columbus Dispatch reports ...

Cindy said...

If what she's saying is true, then who's responsibility is it to investigate? The AG?

Anonymous said...

Susan said...
The article mentions that California's Professional Fiduciary Bureau (run by professional fiduciaries) licenses and regulates fiduciaries. Unfortunately, it sounds good but is window dressing. The issues are similar to what is being stated in news articles about the inability of state Bar associations (run by attorneys) to properly regulate and discipline attorneys.

Anonymous said...

The oversite needs to come from a level high enough that the boundaries of the "good old boys/girls club" is over-stepped. County level probate court judges are in on the theatrics. How could it be so lucrative and well-oiled otherwise?