According to audits from Colorado’s state auditor, the judicial branch hasn’t been doing a good job on probate cases for 11 years. At the request of former State Senator Laura Woods, an audit was performed this year regarding public administrators. But this is clear: We now have 2 reports from the state auditor criticizing the judicial branch’s handling of probate cases. The audit states that the judicial branch failed to keep fundamental data to oversee the public administrator function.

October 1, 2017 by Lulu

The Judicial Integrity Project
Kudos to the state auditor for criticizing Colorado’s judicial branch.According to audits from Colorado’s state auditor, the judicial branch hasn’t been doing a good job on probate cases for 11 years. But how many times will the legislature have to live through Groundhog Day before it realizes that its function is to make law?

At the request of former State Senator Laura Woods, an audit was performed this year regarding public administrators – people appointed by a judge to be a fiduciary regarding an estate or a protected person.

Concerned citizens who pushed for the audit allege that public administrators overbill and deplete estates of large sums of money.

The audit states that the judicial branch failed to keep fundamental data to oversee the public administrator function and that the judicial branch failed to provide guidance to administrators regarding information that should be reported for fees and costs.

The audit states, “When the courts do not receive sufficient information to assess the reasonableness of fees and costs in individual cases, the courts cannot identify instances in which a Public Administrator is charging unreasonable fees and unnecessarily depleting estates.”

And a previous legislative audit committee heard essentially the same thing from the state auditor in 2006, when the audit addressed the oversight of probate cases. The 2006 audit states the judicial branch needs to have better oversight over probate cases and address the reasonableness of fees and costs. Déjà vu.

Yet at a recent hearing regarding the 2017 legislative audit, committee members showed a reluctance to conclude that legislation is necessary – even though the judicial branch previously failed to follow up on the auditor’s recommendations.

Critics of the probate system allege that there is collusion between the judges who preside over such cases and the people who are appointed as conservators or guardians. The 2006 audit provided some specific examples. The 2017 audit does not provide specific examples.

But this is clear: We now have 2 reports from the state auditor criticizing the judicial branch’s handling of probate cases.

Fees in cases, including lawyer’s fees, are addressed by statute. For instance, the 20% fee a lawyer can charge in a workers’ compensation case is set forth by statute – meaning the legislature made the determination of what is usually reasonable.

We have an out-of-control judicial branch because we repeatedly have legislators who are deferential to the judicial branch and don’t insist on checks and balances on the judicial branch. Yet at the recent hearing regarding the legislative audit, even the judicial branch representative, Chris Ryan, was perplexed by what law the legislators wanted to see come from the judicial branch.

We need legislators who understand that the legislature is to make the law. The legislature is responsible for setting forth public policy. The legislature is not to get on its knees every time a judge walks in the room. And yes, the legislature needs to address the issues in probate cases. NOW.

Colorado’s system, at a minimum, creates the perception that judges appoint people with whom they are familiar to probate cases. The perception is that judges then allow those people to improperly bilk an estate for as much money as they can. Therefore, there is an appearance of impropriety or corruption. That’s not good for judicial integrity.

A good legislator could look one state east to Kansas to see that administrators cannot take a fee until a probate matter has ended. Such a procedure obviously encourages administrators to resolve everything in an estate quickly so they can get paid. Compare that with Colorado where administrators can charge an hourly fee without seeking a judge’s approval. Such a system creates the scenario where an administrator is tempted to keep the estate open and bill hours for as long as possible.

And in Kansas, a judge has to approve the fee taken at the end of the case. So there is oversight. There is no such requirement in Colorado. The system in Kansas appears to address concerns raised by Colorado’s state auditor.

Legislators are supposed to listen to a problem and look for an answer. It is not appropriate for legislators to defer to a state auditor who recommends that the judicial branch come up with the answer. The state auditor is incorrect to state that the judicial branch should come up with the answer. And Colorado’s judicial branch has clearly shown that it won’t come up with an answer because it didn’t follow up on the recommendations of the 2006 audit.

Yet watch, we’ll probably have another legislative session where we get bills from legislators that let the folks in Denver have rain barrels rather than addressing more important issues. We have too many legislative lightweights in Colorado.

It’s time for the legislature to step in and make law to ensure that estates are not improperly depleted of assets. And if legislators refuse to do what they’re obligated to do, then it’s clear that they’re not cut out to be legislators.

https://leg.colorado.gov/…/1678p_public_administrators_0.pdf

https://leg.colorado.gov/…/1774_probatecases_perf_contr_sep…

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