Tuesday, June 05, 2007

In the State of PA's Courts, Where is the OC?

In April, 2007, the Supreme Court of Pennsylvania issued "The State of the Commonwealth's Courts: An Updated Report - 2007" (PDF, 11 pages).

The Chief Justice of Pennsylvania, Ralph J. Cappy, introduced the
2007 Court Report, as follows:

Last year, on behalf of my colleagues on the Supreme Court and across our Commonwealth, I offered the first “state of the judiciary”—a report that shared news with Pennsylvanians about our court system.

Since then we have made major strides toward the goals of ensuring greater access to the courts and improving the quality of justice for all our citizens. This report is an update about our efforts.
The 2007 Court Report includes discussions on these topics:
  • Children & Families
  • Technology
  • Outreach
  • Drug Courts
  • Language
  • Judicial Education
The courts' advancements in these areas attend to special needs, more efficient processes, openness to the public, judicial specialization, cultural inclusiveness, and education for expertise. I, as one lawyer in a sea of lawyers, support all these efforts.

However, I am disappointed that the
2007 Court Report neglects issues arising from Pennsylvania's large & growing elderly population.

To illustrate my point: I searched the 2007 Court Report but did not once find the words "orphans" (as in "Orphans' Court Division"),
"aging", "elder", "senior", "fiduciary", "agent", "incapacitated" or even "trust" in its text. The word "mediation" is only used once, but in reference to family law matters. The word "guardian" is only used once, where referring to the judiciary and the media as "the guardians of our freedom."

My point extends beyond the mere use of specific words, and into the need of Pennsylvanians to interface with a court system that has procedures to accommodate the very personal, fact-specific, and highly-emotional conflicts to be presented by the Commonwealth's aged population in the next decade and beyond.

Attention to the challenges of an aging population are under study by the Executive Branch through its 2020 Vision Project, which is due for public reporting by June 30, 2007. See: PA EE&F Law Blog postings PA's "2020 VISION" Project: Part I (02/22/07) & PA's "2020 VISION" Project: Part II (02/23/07).

Likewise, the Legislative branch is conscious of senior's needs, as evidenced by its recent commissioned study groups on guardianships and alternative dispute resolution, its enactments in 2006 of a Uniform Trust Act and of Act 169 regarding Health Care Directives, and pending legislation regarding licensing of personal care homes. I've made postings previously about all these topics.

Many of the interpersonal conflicts involving elders will fall within the jurisdiction of the Orphans' Court Division for resolution. Yet, I fear that inadequate judicial tools are now available, and few appear in design. Other than the very impressive, increasing efforts of the Supreme Court Orphans' Court Procedural Rules Committee regarding the handling of financial accounting & litigation matters in the O.C. Division, I can find few references to development of elder law dispute resolution procedures comparable to those developed over the past twenty years to address family law disputes.

What might be some of the developments in the court system that could facilitate resolution of elder law conflicts?
  • Mediation and other forms of alternative dispute resolution in the Orphans' Court Division for intra-family disputes involving elders.
  • Uniform statewide standards for guardians & uniform court reporting regarding adjudicated guardianships under Chapter 55 of the Probate, Estates & Fiduciaries Code (presently proposed for legislative reform).
  • Efficient review processes (short of full court accountings) for agents acting under powers of attorney, with adequate resources in the event of formal judicial inquiries into personal agents' functioning.
  • Specialized training for Orphans' Court Judges, and targeted assignment of experienced O. C. judges to hear matters in complex fiduciary litigation.
  • Judicial procedures to address contested health care decision-making under the new Chapter 54 of the Probate, Estates & Fiduciaries Code, effective on January 29, 2007.
  • Uniform privacy standards applicable to Orphans' Court matters, which, like Family Division matters, are highly personal & sensitive.
  • Use of court-appointed experts to advise a trial court on capacity or decision-making abilities of an elderly person, independent of other litigant's experts.
  • Uniform standards for permitted discovery in the Orphans' Court Division, and also for issuance of subpoenas by the Clerk of the Orphans' Court Division in estate, trust, & other fiduciary administration matters.
  • New court rules to facilitate judicial review of petitions filed under the new PA Uniform Trust Act provisions.
This is my own wish list. Upon further reflection, I might modify, remove, or add some items. Perhaps some might better be addressed by the Legislative or the Executive branches of state government, by professional organizations like the Pennsylvania Bar Association (& local bar associations), or by other non-profit organizations or their common-interest coalitions.

Yet, this remains m
y wish directed to the Judicial Council of Pennsylvania: That a long-term vision be developed by Pennsylvania's Unified Judicial System to address the litigation challenges to be presented by Pennsylvania's aging population.

To paraphrase the Public Health Law Bench Book recently released by the AOPC (& discussed by me yesterday in a blog posting,
"Bench Book" on PA Public Health Law), it is not a question of "if" these challenges will be presented by seniors; it's a matter of "when".

* * *
Update: 06/07/07:

I sent an email to the AOPC, drawing this posting to their attention for the courts. On Wednesday, June 6th, I communicated with Stuart Ditzen, who is an Assistant for Communications, with the AOPC, for the Supreme Court.

I paraphrase (not quote) his response, which was receptive & positive:
The Chief Justice and the Pennsylvania Supreme Court are very serious about making the court system more responsive to the needs of people who are not able to help themselves, including those who are disabled or incapacitated due to age or other cause.

At present, we have one program under development, which is geared to the improved monitoring of guardianships, many of which involve an elderly person.

We are more than open to other suggestions. Indeed, we invite them.
* * *

Update: 10/22/07:

The Pennsylvania Supreme Court has responded!

On October 17, 2007, the AOPC issued a Press Release, in which the Chief Justice of Pennsylvania announced creation of an Ad Hoc Advisory Committee to the Orphans' Court Procedural Rules Committee, and the appointment of eight experienced O.C. Judges "to review comprehensive statewide rules" affecting Orphans' Court matters.

For more details, see: "
PA S. Ct. Creates Orphans' Ct. Advisory Cte." (10/22/07).