The Myth of the Black Robe

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If I could change one thing about probate courts in California, right now, and nothing else, I would wave a magic wand and make certain that every judicial officer who endeavors to preside over conservatorship and guardianship proceedings has practiced as a “probate and conservatorship attorney” for a period of at least ten years.

Our legal system is ancient and archaic enough, but the idea that a person could walk out of a criminal courtroom as a judge or attorney, for example, and into a probate court and know what to do is absurd. Yet, this is the norm.

Can you imagine sitting in a dental chair and seeing your podiatrist show up…”I’ve gotten a little sick of feet problems, so I thought I’d open up a dentistry practice. A medical degree is a medical degree.” Insane, right? Indeed, but the courtroom equivalent of this is normal. While every other industry looks to experience and expertise for its leadership, the justice system has no problem letting the least knowledgable and least experienced person in the room make the most significant decisions.

Magically, mythically, and mysteriously, mere mortals who may have never cracked open a probate code until their first day as a probate judge have the audacity to put on a black judicial robe and start making “life and death” decisions for other people.

THIS, this mythology that judicial officers are immediately able to assimilate enough information to understand various types of dementia, developmental disabilities, undue influence, capacity, and even the pleadings in spite of having spent a career in a different area of law, THIS is wreaking havoc on families, is perceived as cruelty by children of elders, is condoning abuse, and creating trauma that is entirely unnecessary.

Example: Mrs. Parker, Mother of A and B, signed an estate plan in 2013 years ago leaving her estate to Daughter A. She had myriad good reasons for doing so, but let’s leave that for another day.

In 2018, Daughter B found out that she was disinherited, she took her 94-year-old Mother, now diagnosed with “serious neurocognitive disorder” to see a lawyer of Daughter B’s choice. Mrs. Parker signed documents that she wanted to leave her estate “equally” to her two daughters. Due to this and other untoward behavior, Daughter A (very reluctantly) sought the assistance of the Los Angeles County probate court. Mrs. Parker had no idea that she had signed a new estate plan, had no idea who her new “attorney” was supposed to be, and at times, was unable to distinguish her own daughter from a caregiver. This information could have been gleaned from the verified pleadings submitted by Daughter A.

As always, the Probate Court sent out an email to the list of available attorneys and a “Court Appointed Attorney” or “CAC” was assigned based on who responded first to the email.

The “CAC” interviewed Mrs. Parker at her home and wrote a “report” and made recommendations. There is, by the way, absolutely NO LEGAL AUTHORITY WHATSOEVER for these attorney reports or their recommendations. Our legislators never envisioned a system where one side’s attorney gets to write a report and inform the court as to what the case is about. Many times, these reports – by an attorney who is supposed to be a ‘zealous advocate’ for a client – are the sole basis for the court’s decisions.

The judge did not read the pleadings (based on what she said in court), she did not read the probate investigator’s report which is authorized, by the way, and she seemed to barely understand the very extensive medical reports before her. She read the CAC report and was ready to proceed from there.

NO! NO! NO!

Can you imagine in civil court: “Mr. Smith, I see you are suing Mrs. Jones, so I am going to assign a lawyer to represent Mrs. Jones and that lawyer will tell me how to rule by writing a report that I will deem not just admissible evidence, even though you will never be allowed to depose or cross-examine the attorney I appointed, but will serve as the basis for most of my decisions.”

Does this even sound legal much less logical? But, because the judges are not well versed in this area of law, they seem to like having reports by counsel that they can rely on. They don’t have the time or understanding or empathy to do the real work. My sense is that the judges desperately want to get it right, but lacking experience and expertise in this very nuanced and challenging area of law, they default to the path of least resistance. “

1. The CAC isn’t supposed to be a crutch for the judge to rely on. The purpose of the CAC isn’t to inform the Court what to do, although that is exactly what happens ALL THE TIME. That one misconception alone, that the CAC’s job is to make recommendations and tell the judge what to do negates the principles of justice, fairness, and due process in almost all contested conservatorship proceedings. In Los Angeles County, the probate judges follow the recommendations of the court appointed attorneys. This is very wrong on so many levels.

2. Common sense, rarely observed in probate court nowadays, would inform the average reasonable person that Mrs. Parker’s severe memory deficits are fatal to her ability to have testamentary capacity two weeks ago, and the judge, who REFUSED to interview Mrs. Parker absolutely had the duty to determine for herself whether or not the proposed conservatee is competent to create an estate plan.

3. How long should a judge sit in probate court before she decides to educate herself about rudimentary concepts like “dementia” and “incapacity” and so forth?

Eschew the mythology of the magical black robe, and make it mandatory for judges to have relevant experience as a probate – guardianship and conservatorship attorney. Make certain that the judges have sat in a room with people who are crying over the loss of a loved one and have guided them through the very difficult decision about whether to seek a conservatorship.

Make sure that the ‘Super Fiduciaries” understand what a diagnosis of dementia means, and what “autism” is and is not, and what the Regional Center does. Make certain that the judges are equipped with “experience” “empathy” and “understanding” and the probate courts will start functioning better right away. Not perfectly, but better.

What can YOU do? 1. Subscribe to this newsletter 2. Call, write, email and/or VISIT YOUR State Senator and Tell Him or Her to demand an investigation and audit of the California Probate Courts and the TRAINING, EXPERIENCE, SUPERVISION, AND ACCOUNTABILITY OF THE JUDICIAL OFFICERS and, most of all, 3. GET YOUR ESTATE PLAN DONE!