by C. Jean Stewart
I’ve been in San Antonio, Texas attending the Spring Conference of the National College of Probate Judges this week, catching up with old friends and learning about new trends and concerns among probate courts from Alabama to Oregon to Maine. This has been an outstanding program in a very special setting. Our thanks to Judge Mike Wood from Harris County Probate Court No. 2 (Houston) and Judge Ponda Caldwell from Spartanburg County Probate Court (Spartanburg, South Carolina) who assembled a group of outstanding judges and speakers to lead our conference.
Probate judges and their probate court administrators continue to be restricted by severe budget cuts; nevertheless, we all share common concerns about probate court procedures in trust and estate litigation, abuse and financial exploitation of the vulnerable and elderly, and recent developments throughout the country in all areas of the law that impact probate cases.
Joanne Woodruff, Elder Fraud Prosecutor in the Bexar County District Attorney’s Office inspired and challenged us with the many accomplishments of her office in gaining convictions and significant sentences against con operators, opportunistic neighbors, greedy relatives, unscrupulous caregivers, and others bent on improperly taking funds from vulnerable elderly citizens. Joanne’s position (her office includes an advocate assistant) has been made possible by a grant from the Texas governor’s office but her substantial track record (nearly 100% success) clearly arises from the passion and expertise she brings to her work. Many judges expressed a desire to replicate programs like Joanne’s that would provide every community with a fearless and committed prosecutor to stem the tide of financial exploitation of the elderly.
Stanley Johanson, the James A. Elkins Chair in Law at the University of Texas School of Law, is one of our favorite lecturers in probate law and procedure. He raised multiple issues of interest to probate judges under the new federal estate and gift tax laws and introduced multiple ways in which estate planning and changes to estate plans will impact probate judges in the years to come. He even offered a little advice for probate judges thinking about their own estate plans.
We were heartened to hear from several of our speakers that the Uniform Adult Guardianship and Protective Procedures Jurisdiction Act (UAGPPA) has now been adopted in 37 states (presently on the New York Governor’s desk for signature). Perhaps no single uniform act has done more to insure the safety and security of vulnerable citizens in our mobile society by giving real legislative substance to the concept of “home state” and reducing the risks of conflicting court orders originating from multiple states than this uniform law created, in part, with the participation of NCPJ members. The 13 states that have not adopted UAGPPJA will be the focus of the many groups committed to bringing an end to interstate support and involvement in disputes over physical control and custody of the incapacitated elderly.
No conference of probate judges is complete without a presentation on the special evidentiary rules – Dead Man’s statute e.g., that accompany probate court litigation. Frank N. Ikard, Jr., a prominent Texas fiduciary litigator gave us his perspectives on many of these unique and complex rules. Frank elaborated on the duties of a fiduciary to disclose complete, detailed records of the trust/estate account because (1) the records belong to the beneficiary who owns equitable title to the trust/estate account and (2) the fiduciary has an unquestioned duty to keep the beneficiary(ies) informed about the beneficiary’s property. Frank refers to this as “equitable discovery” and lauds its virtues compared to the civil rules of discovery; most importantly, he has enjoyed great success in applying his analysis in his local practice in Texas.
At Friday evening’s spring banquet, NCPJ gave our annual Judge Isabella Horton Grant Guardianship Award to Erica Wood of the American Bar Association Commission on Law and Aging. The Isabella Award was established to honor the memory of the late Judge Isabella Grant, for many years the highly respected and innovative presiding judge of the San Francisco Probate Court. The Award, sponsored by The Rutter Group of California and administered by NCPJ, recognizes and encourages achievements in the field of guardianships of minors and adults. Erica Wood is particularly suited for this award because she has dedicated over 30 years to the improvement and adoption nationally of appropriate rules and procedures for guardianship proceedings involving our most vulnerable citizens. We congratulate and applaud Erica’s outstanding accomplishments.
We leave San Antonio to return to many diverse states, inspired and confirmed in our views about the unique and particularly human aspects of probate jurisdiction and looking forward to meeting in Nashville for the fall conference in November (meet us at Sheraton Music City November 13-16) and then in Vail, Colorado next May at the Four Season’s Hotel (May 15-18).