The Case Against Probate Courts

Perhaps it's fitting an 86-year-old man may be the one to shove our outdated probate court system into the 21st century. Who better than Daniel Gross - the Long Island man held against his will in a Waterbury nursing home until he was released in July after 10 months - to challenge a 300-year-old system dominated by political insiders. Citing violations of his constitutional rights, the Americans With Disabilities Act and other federal laws and regulations, lawyers for Gross recently filed suit in U.S. District Court, demanding change. The lawsuit seeks intervention in the 123-court probate system, including appointment of a federal monitor to oversee reform. Gross is also looking for $10 million in damages.

The Gross case is similar to school desegregation lawsuits: It asks the courts to act where politicians have failed. Gross lost his freedom when a Waterbury probate court deemed him unfit, plunging him into an underworld where individual rights are ignored but the lawyers' bills get paid. Hollywood could not have come up with a better tale. An old man gets sick while visiting his daughter. Within weeks he ends up in a nursing home, his assets and liberty controlled by the local probate court.

Superior Court Judge Joseph T. Gormley called it "a terrible miscarriage of justice" when he ordered Gross freed from Grove Manor Nursing Home. Gov. Rell, and Probate Court Administrator James J. Lawlor - both named defendants - declined to comment.

This case is a gift from heaven for probate reformers, who have struggled against a court system intertwined with local politics, where judges don't need legal training. If not for a couple of lawyers working for free, Gross would still be in Grove Manor, his estate being steadily depleted by the Waterbury Probate Court. "It's about taking somebody's liberty away without giving them a chance to defend themselves," said John Peters, Gross' lawyer. "You've heard of taxation without representation. Now we've got incarceration without lawyers and a trial." At best, the courts offer an informal, folksy route to deal with wills and estates. At worst, the vulnerable are held against their will by rogue courts.

"The lawsuit is more of a political speech than a lawsuit," countered Brookfield Probate Judge Joseph P. Secola. Gross' lawsuit is "totally irrelevant,`` said Secola, who leads an association of probate judges. "It's not a systemic problem at all. There's just no evidence of that. We are trying to deal with some of the criticisms."

Some criticize the fact that there's no official record of probate proceedings. Judges engage in "ex parte" communications about cases outside of court proceedings. Some judges keep their private law practices, working with the same lawyers who appear before them. In Gross' case, the court restricted access of family members. Probate judges do not have authority to issue restraining orders.

The probate courts shouldn't "be torn down," said Quinnipiac University law professor Royal Stark, who is assisting Gross. "I would like to see them slavishly adhere to the highest standards of protection for the people who appear before them. You have to change the culture." The legislature and governor can't be bothered with making this change, so it's up to Dan Gross - a man whose probate nightmare nearly cost him everything.

Report here


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