Thursday, December 13, 2018

Guardianship Tracking System now online

Pennsylvania’s Supreme Court initiated a Guardianship Tracking System statewide in 2018. Monroe County Court of Common Pleas went online with the system in late October. The GTS is designed for those individuals appointed as a guardian of the person and estate of an incapacitated person to file statutorily-mandated reports with the Clerk of Courts for review by the court.

A court can appoint a guardian after hearing where testimony and evidence establishes that an individual meets the statutory criteria for a finding of incapacity. The legal definition of an “incapacitated person” under 20 PA. C.S. §5502 is “an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.”

A guardian of the estate makes financial decision and a guardian of the person makes health care and placement decisions. The same person may serve as guardian of both person and estate. It’s important to note that a guardian is appointed where an individual has not executed a power of attorney or who has, but the named agent is unable or unwilling to act for some reason.

Once a guardian of the estate is appointed by the court, that guardian must file an inventory within 90 days of the order appointing the guardian identifying all assets of the incapacitated person. With the GTS, the inventory can be filed online. On the anniversary of the order appointing the guardian of the estate, an annual report is filed listing all income and expenses of the incapacitated person over the prior year and stating whether there has been any change in the assets reported in the inventory, such as the sale of an asset, or an asset acquired after the filing of the inventory. Similarly, the guardian of the person must file an annual report summarizing the medical condition of the incapacitated person and indicating how many times the guardian has seen the incapacitated person over the prior year and the duration of the visits. These annual reports are required to be filed every year thereafter.

In the past, the form reports were filed in paper format with the Clerk of Courts. Now, those reports are filed online through the GTS. Although guardians can still file paper reports, the Clerk of Courts charges a fee of $50 per report. There is no charge for filing reports through the GTS.

The GTS ensures that county courts across the commonwealth can track the timely filing of the Inventory and reports. And county courts will review the reports for inconsistencies or oddities that might prompt the court to ask a guardian for clarification or further information.

Full Article & Source:
Guardianship Tracking System now online

Guardianship: Report Of The Senate Special Committee On The Aging Reveals Need For Reform In Management Of Guardians

Every day, courts across our country appoint guardians to protect the personal and financial interests of those most vulnerable in our society. For individuals who are unable to manage their own affairs, whether it is due to illness, disability, or abuse, guardianship laws allow an organization or an individual to manage their affairs and protect them from harm.

Recently, various guardian abuses have been reported and investigated in several jurisdictions in addition to a probe by the Senate Special Committee on Aging. The allegations include mismanagement of funds, lack of proper notice in court proceedings, and even conversion of assets.  Guardians may be family members, independent attorneys, or non-profit organizations. Guardians are charged with marshalling a ward’s assets and income, and depending on the state, they have varying reporting obligations as to financial and personal transactions.

On Wednesday, the Senate Special Committee on Aging reported its findings after a one-year investigation that included testimony by experts and advocates across the nation. Senator Bob Casey and Senator Susan Collins reported that in several jurisdictions guardians have little oversight and financial abuse exists. According to the Special Committee’s Report, approximately 1.3 million individuals are under guardianship in the United States with $50 billion held in guardianship accounts.

The Senate Committee’s Report recommends mandatory background checks for guardians, increased supervision of guardians, and it also encouraged judges to consider less restrictive means instead of full guardianships. Tailored or limited guardianships, which are  options already available in several jurisdictions, encourage individuals  to retain some powers over their personal and financial affairs. Often this means that an individual will have a guardian for supported decision-making instead of full control being assigned to the guardian. Sometimes a person needs a guardian for financial management, but not for personal needs.

In 2015, news outlets revealed several Nevadan guardianship cases of theft and exploitation. In the Senate’s instant investigation, several Nevadan activists testified before the Senate Special Committee on Aging making reports of notice failures and mismanagement of estates. Nevada has taken some steps in the right direction and it has recently embraced three significant reforms in guardianships, first encouraging the less restrictive alternatives to guardianship which includes encouraging those subjects of the proceedings to voice their views in court. Additionally, Nevadan advocates have moved to create a a Bill of Rights for protected persons in addition to a Guardianship Compliance Office wherein guardians are supervised and surveyed.

As part of their Report, Senators Casey and Collins have introduced The Guardianship Accountability Act that would mandate states to report guardianships in addition to mandatory background check for guardians. The Senate also recommended enhanced monitoring, improved collaboration, and increased uniformity of guardianship laws across the United States.

A significant concern in the Senate Committee’s Report is data collection because many states do not have adequate systems to monitor its fiduciaries. The Report noted several jurisdictions that have developed programs to correct this issue. Of note is the State of Minnesota, which has created an online tracking program for guardians where financial transactions are recorded. Similarly, Pennsylvania is in the process of developing a centralized tracking program. Four Indiana counties have developed a similar program. The Report recommends the increase in data collection by federal agencies in addition to a national resource center for guardians.

For those of us who serve as guardian, it can be an arduous task. The court entrusts a guardian with decision making abilities not only for financial concerns but for personal needs, where the stakes can be life or death. It is not unusual for a guardian to beckon the court for advice as to how to proceed with a ward’s significant health issue or how to better manage a ward’s finances so that better care can be provided. A guardian receives phone calls regarding everything from outstanding bills to flu shot consents to emergency room visits to requests for new clothing.

As noted in the Report, we need to do better for our elderly and disabled population. As professionals, we need to make certain that guardianships are properly granted and that guardians and their wards are supervised. As humans, however, we need to make certain that those close to use have appropriate mechanisms in place to avoid a measure so drastic as the issuance of a guardianship. A power of attorney or health care proxy can potentially deny a guardianship. Often financial abuse is not so apparent and vulnerable adults may be prey to systemic pressures asserted onto them by financial predators who can be relatives, friends, and even professionals. From the Senate Committee Report, it is apparent that we need to improve our legal mechanisms and it appears that thus far certain steps have been taken in the right direction. On a personal level, for the people in our own lives who are at risk — perhaps because they live alone or do not have immediate family — let us check in with them this holiday season as our presence is needed to spot issues, resolve problems, and keep them safe.

Full Article & Source:
Guardianship: Report Of The Senate Special Committee On The Aging Reveals Need For Reform In Management Of Guardians

A nurse's error at Vanderbilt killed a patient and threw Medicare into jeopardy

Nashville, Tenn. — Eleven months ago, a nurse at Vanderbilt University Medical Center accidentally selected the wrong medicine while attempting to give a patient a routine sedative, injecting the patient with a lethal dose of a paralyzing anesthetic.

The error, which caused the death of an otherwise stable patient, briefly jeopardized the Medicare reimbursement status of one of Nashville’s largest and most prestigious hospitals.

About one fifth of the hospital's revenue comes from Medicare payments, according to the hospital's recent quarterly report, so the error had the potential to throw the hospital's finances into chaos.

However, federal officials announced Thursday they had accepted a corrective plan submitted by Vanderbilt, so the hospital's status was no longer in question.

John Howser, a VUMC spokesman, said the plan was submitted earlier this month and revised as recently as this week. The hospital had already taken “necessary corrective actions," Howser said.

“In reviewing the event at the time it happened, we identified that the error occurred because a staff member had bypassed multiple safety mechanisms that were in place to prevent such errors,” Howser said. “We disclosed the error to the patient’s family as soon as we confirmed that an error had occurred, and immediately took necessary corrective actions (including appropriate personnel actions).”

Versed or vecuronium: A deadly mistake

Neither the patient nor the responsible nurse have been identified in documents released about the accidental death.

An investigation report released by Centers For Medicare and Medicaid Services details how the error was the result of the nurse confusing two medicines because their names started with the same letters.

The report said the patient checked into Vanderbilt on Dec. 24, 2017, suffering from a subdural hematoma — or bleeding of the brain — and vision loss. The patient was sent to the hospital’s radiology department for a full body scan, which involved laying in a large, tubular machine.

The patient expressed concern about laying in the machine because of claustrophobia, the report states, so a doctor prescribed the patient a small dose of Versed, which is a standard anti-anxiety sedative.

The nurse retrieved the medicine from a dispensing cabinet, but withdrew vecuronium, a neuromuscular blocking medication that causes paralysis. The nurse then unknowingly gave the patient the vecuronium, telling the person it was “something to help him/her relax,” according to the investigation report.

The patient then became unresponsive during the scan, suffered cardiac arrest and partial brain death. The patient died three days later after being removed from a breathing machine.

In an interview with investigators, the nurse said the medicine switch occurred because the nurse was struggling to find the Versed in the dispensing cabinet. Unable to locate the medicine, the nurse triggered an “override setting” in the cabinet, which unlocked more powerful medicines.

The nurse then typed the first two letters of the medication’s name — “VE” — into a search field, then selected the “first medication on the list.”

That was vecuronium, not Versed.

According to the investigation report, Vanderbilt also failed the patient by not monitoring the person after the medicine was dispensed.

Nurses are supposed to monitor patients after giving them medication to ensure they don’t have a bad reaction. But in this case, the patient was moved into the scanning machine, so it was not immediately noticed when the person lost consciousness. Medical staff estimated that the patient might have been alone in the scanning machine for 30 minutes before anyone noticed something was wrong.

Full Article & Source:
A nurse's error at Vanderbilt killed a patient and threw Medicare into jeopardy

Wednesday, December 12, 2018

Redstone Grandson Seeks Guardian Ad Litem Appointment for Media Mogul

A grandson of Sumner Redstone is asking that a guardian ad litem be named to protect the 95-year-old media mogul’s interests in his legal battles with a former live-in companion, court papers obtained Monday show.

Tyler Korff’s petition, filed last Wednesday in Los Angeles Superior Court, states the guardian ad litem will “safeguard the actual and perceived integrity of the proceedings to all interested parties and the public.”

Korff recommends that either Jackson Chen or Samuel Ingham III be appointed on Redstone’s behalf. Both are probate attorneys and Ingham has represented Britney Spears in her ongoing conservatorship imposed by a judge in 2008 after the singer exhibited bizarre behavior.

Redstone has an open case against Manuela Herzer that seeks to recover assets he alleges she wrongfully extracted from him. The case is set for trial in February 2020, but Redstone’s lawyers are asking for a date in 2019 because of their client’s age.

Herzer’s lawyers filed court papers asking that any decision on rescheduling the trial be delayed until the pending application for the appointment of a guardian ad litem, set for a hearing on Dec. 17, is decided.

Lawyers for the former chairman of CBS and Viacom have argued their client is not incapacitated and that the guardian ad litem’s role would be to protect the billionaire’s interests and argue on his behalf. But Herzer’s lawyers say the application bolsters their contention that Redstone is not competent to control the litigation and that it is actually being directed by his daughter, Shari, a longtime Herzer adversary. Redstone’s lawyers filed court papers stating they support Korff’s guardian ad litem petition.

Korff’s court papers state that Redstone “suffers from a number of health conditions, including most notably a severe speech impairment that limits his ability to communicate verbally.”

Meanwhile a hearing is scheduled Wednesday on a motion by Herzer’s lawyers to take Korff’s deposition in advance of the Dec. 17 hearing.

“Herzer believes that it is urgent that the deposition of Korff be taken prior to the hearing of the (guardian ad litem) petition in order that the underlying basis for the petition can be ascertained and so the relationship between Korff and the two persons nominated to act as GAL (can) be determined,” Herzer’s court papers state.

In addition, there has been no explanation from Korff about how he learned that Redstone wanted a guardian ad litem, nor has evidence been presented that the grandson has recently seen Redstone or communicated with his grandfather, according to Herzer’s court papers.

Redstone’s alleged agreement with his grandson’s petition is not evidence that he has consented to anything or has the capacity to do so, according to Herzer’s court papers, which state that a “deposition is critical to explore these facts.”

Herzer alleges in a separate lawsuit that Shari Redstone convinced the nurses serving her father to turn him against Herzer, who was forced to move out of the billionaire’s home in 2015. In her complaint filed in May 2016, Herzer maintains that the October 2015 revision of the Redstone trust deprived her of her claims to $50 million in cash and to Redstone’s Beverly Park mansion, which is valued at $20 million.

Trial of Herzer’s suit is scheduled for December 2019.

Full Article & Source:
Redstone Grandson Seeks Guardian Ad Litem Appointment for Media Mogul

Las Vegas personal injury lawyer arrested on at least 39 theft counts, $1.8 million taken

LAS VEGAS (KTNV) — A Las Vegas personal injury lawyer has been arrested in a theft case stretching back years.

Beginning in March, Las Vegas Metropolitan Police Department detectives began to receive reports from multiple victims regarding a local personal injury lawyer. Victims that have to this date filed police reports, all allege that their personal injury attorney, later identified as 53-year-old Matthew Dunkley, misappropriated financial settlements the victims were to receive as a result of their cases in which Dunkley represented them.

The reports indicated that Dunkley, in addition to misappropriating the settlements to the victims, also took money from the insurance companies that were intended to cover the victims’ medical bills. The victims never received their settlements and are now being held personally responsible for the unpaid medical bills.

On Monday, Dunkley was located by detectives with the LVMPD Major Violators Section Repeat Offender Program and taken into custody. He was transported to the Clark County Detention Center where he faces at least 39 counts of theft.

As of his arrest, detectives believe approximately $1.8 million was taken from victims.

Detectives are asking any additional clients of Dunkley Law who may be awaiting settlements and were victimized by this scheme, to contact the LVMPD Theft Crimes Bureau at 702-828-3483.

Clear Counsel Law Group has assumed some of the cases, but these clients may still have been victimized by Dunkley.

In 2017, the Nevada bar asked Clear Counsel to assist Mr. Dunkley's former clients with open legal matters. Clear Counsel Law Group has no other relationship with Mr. Dunkley.

Many of these cases were from personal injury cases that had occurred as far back as 2012, and one of the incidents involved a 5-year-old child who had been the victim of a dog attack. These victims also filed complaints with the State Bar of Nevada.

According to the website of the State Bar of Nevada, Dunkley was suspended from practicing law in October of 2017.

Full Article & Source:
Las Vegas personal injury lawyer arrested on at least 39 theft counts, $1.8 million taken

Police: VT man stole more than $48K from elderly woman

A Vermont man has been charged with stealing more than $48,000 from an elderly woman over a four-year period after gaining power of attorney of her affairs, police say.

Eric Brigham, 52, of Williamstown, was charged with one count of financial exploitation, according to Newport police.

Police say on Oct. 29, a private investigator working for an 84-year-old woman notified police that her relative, Brigham, had been taking advantage of her by abusing his power of attorney.

An investigation was launched and police discovered that Brigham had been given power of attorney of the woman’s affairs in June 2014, and in December 2014, Brigham allegedly began writing checks out of the victim’s account without her permission.

In February 2015, Brigham obtained checks that had both his name and the victim’s name on them under her account, according to police.

An investigation revealed Brigham used checks and a debit card to withdraw thousands of dollars in funds from the victim’s bank accounts on a regular basis over four years.

With the money, he allegedly purchased an all-terrain vehicle trailer, an enclosed trailer, custom picture frames, furniture, and had work done on his Audi sedan, according to police.

In numerous other instances, police say he wrote out checks to himself for cash or wrote them out under the victim’s name, but rarely gave the victim any of her own money and rarely visited her in the nursing home.

It was also determined that after the victim had moved from her home into the nursing home, Brigham either sold or threw out nearly all of her personal belongings and possessions, rather than putting them in storage and kept the money for himself, according to police.

In total, police say Brigham is believed to have stolen $48,149.11 from the victim and left her with several delinquent credit card bills and more than $20,000 in debt to her nursing home.

Brigham is scheduled to appear in Orleans District Court on Jan. 15.

Full Article & Source:
Police: VT man stole more than $48K from elderly woman

Tuesday, December 11, 2018

It's hard to think about, but frail older women in nursing homes get sexually abused too

We don't often think of older women being victims of sexual assault, but such assaults occur in many settings and circumstances, including in nursing homes. Our research, published this week in the journal Legal Medicine, analysed 28 forensic medical examinations of female nursing home residents who had allegedly been victims of sexual assault in Victoria over a 15-year period.

The cases were examined by Clinical Forensic Medicine – a division of the Victorian Institute of Forensic Medicine – between January 1, 2000 and December 31, 2015.

The majority of the alleged victims had some form of cognitive or physical impairment. All 14 perpetrators who were reported were male, half of whom were staff and half other residents. The majority of case reports didn't indicate whether the alleged victim had received treatment for the .

The most frequent alleged sexual contact was vaginal contact or penetration. Injuries weren't reported for every case. Where present, they consisted of bruising, skin tears, redness and swelling.

The physical examination was often limited because of the cognitive status (in 38%) of the individuals, physical issues (in 31%), lack of cooperation (23%), and poor examination conditions (23%). Data on alleged victims' behaviour was commonly missing.

These information gaps highlight the difficulty of examination which is essential to a detailed investigation. A better understanding of the context and setting of the assault, which is usually available when younger women are victims, is essential to inform prevention efforts.

Eliminating in nursing homes is a major challenge which starts with acknowledging it exists and recognising the scale of this abuse.

Much higher than we think

Sexual assault is considered the most hidden, as well as least acknowledged and reported, form of elder abuse. This makes it difficult to accurately estimate its prevalence.

Prior to 2007, it was estimated there were around 20,000 unreported cases of elder abuse, neglect and exploitation in Victoria. Between 2009-10 and 2014-2015 the published number of sexual assaults among older people rose from around 280 to 430 reports nationally (information about each jurisdiction was not available).

In 2015–2016 The Australian Department of Health was notified of 396 reports of alleged or suspected unlawful sexual contact of residents in nursing homes in Australia.

Based on these statistics, we expected Victoria would have 80-120 sexual assaults of residents reported in nursing homes per year (equating to approximately 1,200 assaults during the study period). The 28 cases reported to the forensic investigation team over a 15 year period suggests under-recognition and under-reporting.

Nursing are particularly vulnerable to sexual assault due to their dependency on caregivers, health problems, and the co-housing of residents, sometimes with potentially dangerous older individuals with sexual assault backgrounds.

Negative stereotypes such as that older people aren't sexual beings, their greater dependency on others, potential divided loyalty to staff members or residents are unique barriers to reporting, detecting, and preventing sexual assault in nursing homes. Despite severe health consequences, efforts to prevent and address elder abuse remain inadequate.

In the majority of cases we examined, signs of general or genital injury were not found. Further, post-assault victim responses, such as agitation, distress and confusion may mirror symptoms of cognitive impairment. This can create difficulties for nursing home staff in distinguishing between the usual behaviour or a response to trauma, such as sexual assault.

Also, nursing home victims of sexual assault tend to be ignored by staff who often don't believe the accusations. Although we could not determine who or what prompted reporting, what is known is that sexual assaults are unlikely to have a witness, though witnesses appear to be crucial to ensure successful prosecution.

Sexual assault, in any setting or age group, is one of the most difficult crimes to prosecute due to the required elements of intent and lack of consent. But this is made all the more complicated when it comes to nursing home residents.

Awareness is crucial

Staff must be aware of the existence of sexual assault in nursing homes. It is their duty as care providers to report alleged or suspected sexual assault in a timely manner. More education, training and research is needed to address the knowledge gaps around incidence, levels of reporting, nature of investigations, responses required to better assist the victim, and the interventions needed to prevent sexual assault.

Without a clear understanding of the alleged victim and incident characteristics, we will struggle to combat sexual assaults in nursing homes. There is an urgent need to better use the existing data held by the the Department of Health to understand the full extent of sexual assault in nursing homes. The Royal Commission is an opportunity to consider the development of tailored policies, staff training and legislation.

Full Article & Source:
It's hard to think about, but frail older women in nursing homes get sexually abused too

Statutory durable powers a tool to avoid guardianship

A little more than a year ago the Texas Legislature made substantial changes to the law establishing a Statutory Durable Power of Attorney (SDPOA). Given those changes, made effective September 1, 2017, persons who created a SDPOA prior to should review those instruments with their attorneys. As important as it is for those with SDPOAs to revisit them, a more fundamental problem exists concerning SDPOAs: many, if not most, people don’t have a good understanding of what a SDPOA is and why they need one.

A Statutory Durable Power of Attorney is a document which gives a designee power to act as an agent for, and to act in place of, the person creating the POA. The document must be signed by the principal – the one granting the power - and it must be notarized. The instrument grants the agent authority to handle whatever items of business the principal has designated to the agent. Under a SDPOA, the principal may grant all or some of a broad list of powers to handle transactions involving real estate, tangible property, stocks and bonds, commodity and options, banking and other financial institutions, business operating, insurance and annuities, estate, trust and beneficiaries, claims and litigation, personal family and maintenance, federal benefits, retirement plans, tax matters and even digital assets.

The SDPOA is a powerfully effective instrument that can often be used to prevent the necessity of an expensive guardianship proceeding and naming of a guardian of the estate of an incapacitated person. For this reason, all persons should execute a SDPOA for themselves.

In general, persons creating a SDPOA intend to handle their own financial affairs until such time as they are incapacitated or incapable of doing so. However, the SDPOA gives the person creating the SDPOA the option to choose one of the following: (1) “This power of attorney is not affected by subsequent disability or incapacity of the principal” or (2) This power of attorney becomes effective on the disability or incapacity of the principal.”

Option No. 1 (in my opinion, inartfully stated) means that the SDPOA goes into effect immediately, without requiring that a physician designate in writing that the person creating it is disabled or incapacitated. The second option means that the SDPOA does not give the agent the power to act until after the principal has been declared disabled or incapacitated in a writing by a physician.

Whether Option 1 with immediate effectiveness or Option 2 with effectiveness delayed until a doctor establishes disability depends upon the particular circumstances of the principal and the agent being named. With either option, it is imperative that the agent named is a person the principal trusts completely to handle his or her affairs in the principal’s best interest.

Given a trustworthy agent, in most instances, Option 1 is often preferable for these practical reasons:
  1. Many, if not most, doctors do not like making the assessment that a person is disabled or incapable of handling his or her affairs;
  2. Even when a doctor is willing, the doctor may not be the best person to make that decision, given that often an individual’s decision-making capability can vary from day to day; and
  3. Even if the doctor is willing and can make a valid assessment, often action needs to be taken sooner than is possible when the assessment must be secured beforehand.
Even when the SDPOA is made effective at once, the principal can still continue to handle their own affairs until they themselves determine they no longer can do so.

The 2017 version of SDPOAs gives the principal the option of designating whether the agent will receive reasonable compensation for performing the duties required under the SDPOA or will merely be entitled to reimbursement for any expenses incurred in performing those duties.

In my experience, most principals name a spouse or another person who will ultimately inherit from them and choose to have that agent perform without compensation.

The SDPOA form enacted in 2017, makes clear that, unless the principal answers “yes” to specific designations, the agent will not have the authority to: (1) create, amend, revoke or terminate a trust the principal has established during life; (2) create or revise rights of survivorship; (3) create a beneficiary designation; or (4) authorize another person to exercise the authority given under this power of attorney.

Full Article & Source:
Statutory durable powers a tool to avoid guardianship

Former bank manager accused of stealing $97K from elderly customer

Britt K. Landsperger
CONCORD — A former bank manager was arrested Friday and charged with seven felonies, alleging she stole more than $97,000 from an elderly woman, according to a statement released by New Hampshire Attorney General Gordon J. MacDonald.

Britt K. Landsperger, 46, of Stratham, was charged with seven Class A felony counts of theft by unauthorized taking, according to the statement. The arrest was the result of a joint investigation conducted by the state Attorney General’s Office and the Portsmouth Police Department.

The charges allege that between 2013 and 2018, Landsperger obtained or exercised unauthorized control over money from seven bank accounts belonging to a 68-year-old woman, with a purpose to deprive her thereof, and the value of the money removed from each account exceeded $1,500, according to MacDonald. The total money taken from the accounts exceeded $97,000.

Landsperger was an employee of the bank and the 68-year-old woman was a customer, MacDonald says. The statement did not indicate at which bank the thefts occurred.

Full Article & Source:
Former bank manager accused of stealing $97K from elderly customer