By Jared Chausow
By Katie Toth
By Elizabeth Flock
By Albert Samaha
By Anna Merlan
By Jon Campbell
By Jon Campbell
By Albert Samaha
When Judge Kristen Booth Glen walked into her Manhattan Surrogate's courtroom one day in 2007, she had no idea she was about to challenge the nation's top banks on behalf of tens of thousands of disabled people.
Before her stood lawyer Harvey J. Platt, who was petitioning to become the legal guardian of Mark Christopher Holman, a severely autistic teen who lived in an institution upstate.
Holman had been left an orphan nearly three years earlier after the eccentric millionaire who adopted him passed away. According to doctors, he had the communication skills of a toddler, unable to bathe, dress, or eat by himself.
But before Judge Glen would grant this seemingly perfunctory petition, she had a few questions for Platt.
"How often have you visited Mark Holman?" she asked the lawyer.
"Since his mother died, I have not visited him," said Platt.
"And when you say you haven't visited him since then, how often had you visited him prior to that?"
"I haven't seen him since he was eight or nine," responded the lawyer. "His mother used to bring him to our office with his brother, just to show him my face and so forth and so on, so I haven't seen him probably since 1995 or 1996."
It was around that time that Platt helped Mark's mother, Marie Holman, draft her will and create trusts for him and his older brother. A decade later, when she was dying, Platt promised Marie he'd apply to become Mark's guardian.
"And have you visited the institution which he currently resides in?" Glen asked.
"No, I intend to, but I have not as yet," Platt said, sounding weary. "I don't think even a visit has much significance anyway. He's totally nonverbal—he's never spoken a word. He's potentially aggressive."
This didn't sit well with Judge Glen. When it came to signing away the rights of disabled people to guardians, she was perhaps the most cautious judge in New York. But what came next would floor her.
Platt informed her that Mark's trust had reached nearly $3 million. But while his trustees—Platt and JP Morgan Chase—had collected thousands of dollars in commissions, they hadn't spent a penny on Mark. Medicaid covered his basic care at the institution upstate, but neither the lawyer nor the bank had considered how his mammoth trust might further aid his quality of life.
"Whether there is a cure for his autism or not, the question is: Are there things that could make his life more pleasurable or fulfilling?" Glen asked. "If somebody took him out to the movies once a week, or somebody took him out to lunch, or what he really likes to do is watch football—I don't know. There's always something that could make people happier, and I don't think you could know that without really visiting him and knowing what's going on."
As she spoke, Glen could not have predicted that the case would become a five-year obsession for her. Or that she was about to disrupt a lucrative trade in which some trustees sponge commissions off wealthy disabled people—while doing little to enhance their care.
"They're lazy pieces of shit," says Glen. "It's a business. They collect their commissions, and they think their only responsibility is to invest the money and keep the money safe with no regard for the beneficiary."
Special-needs trusts hold billions of dollars around the country. The funds are set up to benefit people with chronic disabilities, while typically allowing them to keep government benefits like Medicaid. But there's little oversight to ensure that trustees are spending the money properly—or even spending it at all.
"We see a lot of trusts that sit dormant," says Edward Wilcenski, a New York lawyer and former president of the Special Needs Alliance, a national network of attorneys. "It's not uncommon that over a period of three, five, 10 years we don't see distributions made, but we see the calculation of commissions."
The trusts number in the tens of thousands and are held by a long list of banks. Wells Fargo, for example, has more than 1,000 trusts with a total value of more than $1 billion. And as more people with disabilities live longer, their value continues to grow.
They're usually funded with an inheritance or court settlement. But in order for beneficiaries to stay Medicaid-eligible in New York, trustees must have absolute discretion over their money.
The problem: There are virtually no rules governing whether trustees are spending in the best interests of their clients. Worse, the courts can only review these cases if someone complains.
"If someone is severely disabled with an institutional trustee, that person's not going to come to court," Glen says. "There's nobody who will, and that's what's really scary about it."
Marie Holman, Mark's adoptive mother, grew up on a muddy dairy farm in Jefferson, Ohio. The family was poor, even by Great Depression standards, recalls niece Sharon Awad. Marie and 11 siblings shared a farmhouse without plumbing.
Marie looks tall and thin in family photos, with sunny blond hair and a cute bulb nose. She kept her fingernails long and red, even while she helped milk the cows.
I agree Determinedin (NY) but the responsibility of finding just judges is up to us. It is the same for finding people who will express our views politically. This really isn't even a difficult thing. Our political representatives only have to do what we ask them to they are literally trying to be popular with the people that put them into office. The same goes for the president his job is to lead and do the will of the people. Why is it so hard for political people to follow their word, do as they have promised and as the people who have faith in them have asked? Something is seriously wrong, and it may start with us.
CUNY Law dean and prof, eh? No wonder! That's one progressive institution. Too bad their grads had the issues with passing the bar exam the first time around (industry standard); hopefully that's now been rectified (though it's certainly the case that bad lawyers exist anyway). What a woman, wow!
I'll gladly join those giving thanks to -- and for -- the Honorable Judge Glen. My question is this: Why was Platt so able to take the money and run, but then claim family illness, etc. for not being able to do the job? Professionals routinely reassign their duties to others when they are unable to perform to standards. Platt said he won't be criticized by anyone. Well, I will most certainly criticize! It's because of sleazebags like him that lawyers get a bad name. Shame on you, Platt. I can almost understand that JP Morgan, as a corporation and dedicated to nothing other but the bottom line, might focus purely upon maximizing the trust, but you, as an attorney, have a sacred duty to work in your clients' best interests. It's too late now, but by rights I think Judge Glen should have ordered you to reimburse your ill-gotten commissions. They were, in truth, defrauding your client. I hope the fire is stoked up enough for the likes of you by the time you get there.
Thank you Judge Glen, for caring about people. I wish you had been the judge on my mother's case...she possibly would have been alive today. My mother was kidnapped by her guardian /attorney Mary Giordano, elder care attorney with Franchina and Giordano in Garden City, NY. Judge Joel Asarch insisted she go in a nursing home although I was able to care for her 24/7 in my home, deemed safe by the courts. They wanted what was left of her small estate, which had already been pillaged by Giordano. It always and only all about money, never about the people.
Thank you Judge Glen! The whole institution of guardianship needs more oversight nationwide. My family was never wealthy but I had a special needs younger brother -- and it was always a worry as to who would look out for my brother if he was our last family member. Sometimes in dark moments I think it was a blessing that Paul passed before my mother and I did. Perhaps if more people follow your footsteps and watch over the guardianship process, things will be better. But guardianship abuses are everywhere, and there is a long way to go.
I remember Judge Kristin Booth Glen well from my time as a practicing attorney. Very smart, very fair, very nice. Now that I am the mother of two disabled boys and Exec Dir of a school for children with autism, I appreciate her even more -- she is obviously caring and sensitive. I am so happy that she took on the lawyers and banks to ensure that they do right by people who are so severely disabled they cannot fend for themselves. What a great outcome -- I hope other judges will pick up where Judge Glen left off and hold these officials accountable.
What I hadn't yet learned when I posted that is that Harvey Platt also makes a fair share of money with his books (search for his name on Amazon) and also on the lecture circuit. His family health problems somehow didn't keep him from updating his books every year!I haven't yet had a chance to read Judge Glen's entire opinion on this case, but I've put it on my Kindle for reading later. It's a bit hard to find, so here's a link for anyone who is interested: http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-22387.html