Wednesday, March 3, 2004

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QUEENS COUNTY GRAND JURY THAT INVESTIGATED GUARDIANSHIP THEFTS ISSUES COMPREHENSIVE REPORT RECOMMENDING MAJOR REFORMS OF EXISTING LAW AND COURT RULES TO IMPROVE OVERSIGHT AND BETTER PROTECT ASSETS OF INCAPACITATED INDIVIDUALS

Queens District Attorney Richard A. Brown announced today that a special investigative Queens County Grand Jury impaneled to probe thefts from guardianships has issued a comprehensive report recommending major changes in existing law and court rules to improve oversight of court appointed guardians and examiners and better protect the assets of incapacitated individuals incapable of managing their own affairs.

District Attorney Brown said, “It is essential that public confidence in the integrity and impartiality of the process by which fiduciaries are appointed and regulated -- and the manner in which they carry out their responsibilities -- be maintained.”

District Attorney Brown added, “The Grand Jury carefully reviewed the existing system, found it riddled with loopholes and has urged legislative and administrative action to address the many serious problems it uncovered during its six-month-long investigation. I would urge that the panel’s recommendations receive careful review and consideration by the Legislature and Judiciary so that never again will the estates of helpless, incapacitated and vulnerable individuals be plundered with impunity.”

The Grand Jury whose report was filed yesterday in Queens Supreme Court was impaneled on September 16, 2003 upon the application of District Attorney Brown by Queens Supreme Court Justice Richard L. Buchter.

The Grand Jury in its 51-page report with appendices cites the case of a Queens attorney appointed by the court as a guardian to oversee the estates of 14 incapacitated individuals who last year was convicted of stealing over $2 million from their estates. The attorney, who cooperated in the Grand Jury’s investigation and who is referred to as John Doe in its report because of Grand Jury secrecy rules, was automatically disbarred upon his conviction and sentenced to serve up to nine years in prison.

District Attorney Brown said, “The Grand Jury concluded that the attorney was able to steal over $2 million from 14 guardianships over a five-year period because court examiners were lax in carrying out their responsibilities and the guardianship system did not contain sufficient safeguards to prevent or detect those thefts.”

The Grand Jury in its report recommends that court examiners be full-time employees of the Unified Court System rather than attorneys or others appointed by the Appellate Division of Supreme Court and that until such time as that recommendation can be implemented that the State’s Chief Judge should establish a statewide Office of Chief Court Examiner to supervise each county’s court examiners, review their examination procedures and seek removal or other penalties for failure to conform to the law or court rules.

The Grand Jury also recommended: (1)stricter enforcement of existing accounting provisions of the law; (2)notification requirements to ensure effective communication among guardians, examiners, financial institutions and the courts; (3)prohibition of conflicts of interest; (4)uniform procedures for examination of guardian reports and accountings and (5)stronger remedies for failures to meet proper accounting and examination procedures.

According to the District Attorney, the Grand Jury found:

- serious flaws in the manner in which court examiners –- who are appointed to oversee the activities of court-appointed guardians for incapacitated persons -- examine the guardianship accounts that the guardians are required by statute to submit every year;

- that court examiners gave only cursory attention to attorney Doe’s accountings, failing to notice or question obvious irregularities, such as checks written on guardianship accounts and deposited in the attorney’s personal bank accounts;

- that attorney Doe failed to file any accountings at all in some instances -- and was not compelled to do so; that in other instances he failed to promptly notify the court of the deaths of his wards and failed to file final accountings, although he was required to do so by statute and that there was not any official oversight of these final accountings to ensure that they were examined for discrepancies or, indeed, filed at all; and

- that in at least two instances attorney Doe drafted wills by which the incapacitated persons in his care purported to bequeath to him the bulk of their estates and that he felt free to do this since there is no specific statutory provision or court rule prohibiting a guardian from benefiting from an incapacitated person’s estate.

District Attorney Brown announced last October when attorney Doe was sentenced that a wider investigation by his Integrity Bureau into the oversight process involving guardianships and other fiduciary appointments in Queens County was continuing.

The District Attorney explained that under existing law the courts make fiduciary appointments of court evaluators, attorneys for allegedly incapacitated persons, guardians, guardians ad litem and court examiners to provide for the personal care of incapacitated persons and to manage their property and financial affairs. Fees for services provided by those appointees are paid from the incapacitated persons’ assets and accountings are reviewed by court examiners -- who are also compensated from the funds of those individuals -- and reported to the courts.

The District Attorney noted that fiduciary appointments are bonded in the amount of the assets placed in the fiduciary’s care and added that all the monies stolen by the defendant were restored to the incapacitated individuals or their estates.

In December 2001 comprehensive reports were submitted to Chief Judge Judith S. Kaye by the Commission on Fiduciary Appointments and by the Special Inspector General for Fiduciary Matters which made extensive recommendations to reform the process by which appointments of guardians, court examiners and other fiduciaries are made.

The District Attorney said that his investigation of attorney Doe began in September 2002 when the Queens County Public Administrator’s Office discovered an irregularity in the accounting of the financial affairs of a 67-year-old mentally ill individual for whom the attorney had been appointed to serve as guardian and notified Queens County Administrative Judge Steven W. Fisher who in turn referred the matter to the District Attorney.

District Attorney Brown said that the investigation determined that between 1997 and 2002 attorney Doe stole over $2 million from the funds of incapacitated individuals and filed false instruments and lied to cover the thefts when accounting for costs and expenditures.

The thefts included:

- $631,000 taken from a guardianship and the estate of a 67-year-old mentally ill man who died at a nursing home in Far Rockaway, Queens;

- $832,000 taken from a guardianship and an estate of a 52-year-old quadriplegic who died at a nursing home in Far Rockaway, Queens;

- $270,000 taken from a guardianship of a 76-year-old mentally ill man who is being cared for at home in Hollis, Queens;

- $35,000 taken from a guardianship of an 81-year-old woman with Alzheimer’s disease who is being cared for at a nursing home in Rockaway Park, Queens;

- $21,500 taken from a guardianship of an 18-year-old youth born with massive birth defects who is being cared for at home in Valley Stream, New York.

- $29,000 taken from a guardianship of an 84-year-old mentally ill man who is being cared for at an adult home in Kew Gardens, Queens;

District Attorney Brown expressed his appreciation to New York State’s Chief Administrative Judge Jonathan Lippman, Queens County Administrative Judge Steven W. Fisher, Queens County Surrogate Robert L. Nahman, Queens County Public Administrator Lois M. Rosenblatt, her Counsel, Gerald J. Sweeney, and the New York State Unified Court System’s Inspector General Sherrill R. Spatz for their cooperation and assistance in the investigations.

Assistant District Attorney James M. Liander, Chief of the District Attorney's Integrity Bureau, assisted by Assistant District Attorney Carmencita N. Gutierrez, Deputy Bureau Chief, supervised the Grand Jury under the overall supervision of Executive Assistant District Attorney for Investigations Peter A. Crusco and Deputy Executive Assistant District Attorney for Investigations Linda M. Cantoni. The investigation of the attorney Doe was conducted by Detective Sergeant Richard Scantlebury of the District Attorney’s Detective Bureau with the assistance of Senior Investigative Accountant James Dever under the supervision of Edward T. Brady, Chief, now retired, and Lawrence J. Festa, now Chief, of the District Attorney’s Detective Squad.