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Colorado's probate courts riddled with neglect, lack of accountability, report finds

Colorado does a miserable job of monitoring the guardians and conservators who control the finances -- and, in many cases, the living conditions -- of incapacitated adults, minor wards and other vulnerable populations, according to a scathing report released yesterday by the Office of the State Auditor.

In other words, little has changed since another state audit identified similar, systemic problems five years ago.

Drawing on a lengthy review of 48 cases selected from six judicial districts, the auditors found that probate court judges and their staffs often do an inadequate job of screening individuals appointed to manage the estates and affairs of "protected persons;" nearly half the time don't receive required annual reports from guardians and conservators detailing estate assets and expenditures; frequently don't review the reports they do receive to determine if expenses were legitimate; and miss glaring problems in the reports, such as a conservator charging nearly $12,000 for "guardianship fees" before a guardian was ever appointed in the case.

In some cases, conservators are family members who charge nothing for their services; in others, professionals charge up to $300 an hour, even though the auditors found "that some professional guardians and conservators are not providing professional-level services." In several of the examined cases, professionals didn't file required reports or used improper reporting methods.

"There's a very large issue here that's crying out for some legislative intervention," state senator Pat Steadman remarked as the Legislative Audit Committee reviewed the report's findings.

Colorado Supreme Court Chief Justice Michael Bender and State Court Administrator Gerald Marroney agreed with the conclusions but attributed many of the problems to being short-staffed, particularly in the area of clerical help. The judicial branch has lost hundreds of employees to budget cuts in the last decade, including a slash of 173 jobs last year.

"This is a national issue," Marroney told the committee. "Everybody's struggling with it. We're not total schmucks. But we do feel pretty badly about the audit."

"We are going to ask for more resources," Bender said. "But there's no question in my mind that we can do a better job with the limited resources we have today."

Yet the report also rebuked the judiciary's leadership for failing to implement recommendations made in a 2006 audit that tracked similar breakdowns in supervision.

Even though cases sometimes deal with life-and-death situations, probate court hasn't been a priority in the state's beleagured court system; the judiciary hasn't even been able to implement a risk assessment tool to identify high-risk cases and monitor them more closely.

The problem isn't just a shortage of personnel, as Bender conceded. Court administration has been greatly decentralized across the state, the report found, and many judges believe they have great discretion in how to handle probate matters -- to the extent of ignoring directives from the Chief Justice. And there's been a distinct lack of follow-up even when major problems, such as conservators looting estates or charging for services never rendered, are brought to light.

Denver is the only judicial district that has a judge dedicated full-time to probate work, and it's been a source of chronic complaint over the years and occasional exposés. (Check out Letty Milstein's horror story and this recent Denver Post series.) The court was presided over for sixteen years by C. Jean Stewart, who abruptly retired last April, shortly after being retained in the general election -- and weeks before the new audit was originally supposed to be released.

Stewart, now a member of the Holland & Hart firm, has many admirers in legal circles; she made a recent "Best Lawyers of the Decade" list compiled by Law Week Colorado and received an award this year from the Colorado Judicial Institute for her long service on the bench. But she also has some vocal detractors, including folks who've kept up a Remove Judge C. Jean Stewart website even after her retirement.

Ironically, Stewart tried to address Denver's staggering backlog of poorly monitored guardian and conservator cases by directing one employee to spend up to half her time reviewing reports and detecting problems. But that employee, Caroline Cammack, was fired two years ago -- after, Cammack says, she persisted in trying to bring to Stewart's attention what appeared to be serious abuses by the court-appointed managers and the failure of one guardian to adequately supervise an HIV-infected, mentally disabled individual who was having unprotected sex.

Cammack has filed a lawsuit over her dismissal. Stewart has denied any wrongdoing, but other ex-employees of the Denver probate court have suggested that Stewart got "very irritated" by Cammack's campaign to hold guardians and conservators accountable. "The judge didn't like the fact that Caroline was finding all these things," one former employee stated in a deposition. "[Stewart] told me, 'I don't want to hear all this stuff. We can't take care of all of this stuff.'"

Cammack agrees that the courts have a labor shortage, but she believes real reform will only come when the judiciary re-examines its priorities. "They've been using the same excuse for years," she said after yesterday's hearing. "If they don't have the money to run the courts properly, maybe they shouldn't be building a new Supreme Court building."

The complete audit report can be found here.

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