| NEW YORK - The New York State court system has adopted
stringent new rules governing judicial appointments of guardians, guardians
ad litem, receivers, referees and other fiduciaries that assist the courts
in resolving cases. The new rules - approved by the Court of Appeals
after consultation with the Administrative Board of the Courts - are based
on the recommendations of the Commission on Fiduciary Appointments, which
issued a report to Chief Judge Judith S. Kaye in December 2001 after conducting
an exhaustive assessment of the current system. Chief Judge Kaye
created the Commission, along with the Office of the Special Inspector
General for Fiduciary Appointments, following the release of a controversial
letter which highlighted concerns that courts were selecting fiduciary
appointees based on factors other than merit.
The new rules establish a comprehensive framework to ensure that selection
of fiduciary appointees is merit-based and free of favoritism. The
following are the major features of the new rules and procedures that will
be put in place:
• All fiduciary candidates must meet specific training and experience
requirements to be included on eligibility lists.
• Fees will not be paid to fiduciaries unless they have filed
all required forms with specially designated court clerks.
• Fiduciaries may receive only one appointment in a single calendar
year paying $5,000 or more.
• Fiduciaries who reach a cap of $50,000 in aggregate payments
from their appointments in a single calendar year will be ineligible for
appointments in the next calendar year.
• Judges who award $5,000 or more to a fiduciary appointee must
provide a written justification for the award.
• For the first time, court examiners, who review the reports
and accountings that guardians must file with the court, are subject to
the requirements of the rules.
• The names of all fiduciary appointees, the appointing judges
and the compensation awarded will be provided to the press on a quarterly
basis and published on the court system's Web site.
• In receivership and guardianship cases, secondary appointments
such as counsel, property managers and accountants must be made by the
court and are subject to all the requirements of the rules.
• Absent a compelling reason, no receiver or guardian (or the
receiver's or guardian's law firm) may be appointed as his or her own counsel.
• Former judges and their immediate relatives are ineligible
for appointment, within the jurisdiction where the former judge served,
for a period of two years after the judge leaves the bench.
• State and county political leaders, their immediate relatives
and their law firms are ineligible for appointment.
• Persons who serve as judicial campaign officials, their immediate
relatives and their law firms are ineligible for appointment by the judge
they served for a period of two years after the judicial election.
• Misconduct or unsatisfactory performance will result in removal
of fiduciaries from the eligibility lists.
Chief Judge Kaye stated, "Court-appointed fiduciaries are entrusted
with control of the personal and financial interests of some of the most
vulnerable members of society: widows, orphans, incapacitated persons and
the elderly. It is imperative that these assignments be made solely
on the basis of merit and that the appointees be scrupulous, conscientious
individuals with sufficient training and experience to perform this vitally
important work. The new rules governing fiduciary appointments achieve
this by establishing strict guidelines for assignments and a more accountable
regulatory structure. I am grateful to Chair Sheila Birnbaum and the other
members of the Statewide Commission on Fiduciary Appointments, whose instructive
report and thoughtful recommendations laid the foundation for these prudent
new measures."
Chief Administrative Judge Jonathan Lippman added, "The new rules governing
fiduciary appointments are the latest step in the court system's comprehensive
program to reform the fiduciary assignment process in New York. We created
the Office of the Special Inspector General for Fiduciary Appointments
to investigate individual allegations of misconduct, and we undertook a
series of internal measures to improve the monitoring of fiduciary practices
across the state. In addition, the Chief Judge appointed the Commission
on Fiduciary Appointments, whose outstanding work led to the adoption of
these latest measures. The new rules establish rigorous appointment
standards and ensure accountability in these assignments."
Most of the new rules and procedures take effect January 1, 2003; the
remainder, including the establishment of new, specialized eligibility
lists, take effect June 1, 2003.
Judges Kaye and Lippman also announced today, in conjunction with Presiding
Justice Milton L. Williams of the Appellate Division, First Department,
and Presiding Justice A. Gail Prudenti of the Appellate Division, Second
Department, a pilot program in which the court system's internal auditors
will serve as court examiners in selected guardianship proceedings in the
First and Second Departments. Court examiners review the reports and accountings
that guardians, who are appointed to manage the affairs of incapacitated
persons, must file with the court.
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