Tuesday, November 25, 2014

Florida Guardianship Court Permits Dismissal of Incapacity Petition

Sometimes, family members file a Petition for Incapacity over a relative.  Sometimes, the person filing the Petition for Incapacity wants to withdraw the pleading.  Perhaps the Petition was misguided, or the family is able to work things out without the benefit of the guardianship system taking control over the allged incapacitated person.  

One would think that the dismissal of a Petition for Incapacity would be allowed.  Two recent cases from Florida appellate courts come to different conclusions, however.  The most recent case, Katke v. Bersche, 2014 Fla. App. Lexis 19080 (5th DCA  2014), permits the withdrawal of a Petition for Incapacity.  

The facts of the case are somewhat common.  The daughter of the alleged incapacited person, Bersche, filed a Petition for Incapacity.  Shortly thereafter, the guardianship court appointed an emergency temporary guardian ("ETG"), a professional guardian named Kardos.  A short time later, Bersche withdrew the Petition for Incapacity. The professional guardian Kardos then filed her own petition for incapacity in the same proceeding. In mandating the dismissal of the case, the Court explained as follows:

    A party may voluntarily dismiss any claim, and such a dismissal, if accepted by the trial court, deprives the court of jurisdiction over the subject matter of the claim dismissed." Cutler v. Cutler, 84 So. 3d 1172 (Fla. 3d DCA 2012). The plaintiff's right to voluntarily dismiss its own lawsuit is almost absolute, with exceptions for fraud on the court and child custody. Tobkin v. State, 777 So. 2d 1160, 1162 (Fla. 4th DCA 2001). Here, there was no allegation of fraud. Further-more, the trial court specifically found that the original petition was withdrawn and that all motions attacking the peti-tion were therefore moot. Once the trial court accepted the withdrawal, it lost jurisdiction over the case.  Thus, the court could not find that Kardos had standing to file the Second Petition in the same case or that the parties could set hearings on outstanding discovery motions.

In the earlier case, Jasser v. Saadeh, 97 So.2d 241 (4th DCA 2012), the Petition for Incapacity was filed.  After some litigation, but before the alleged incapacitated person was adjudicated incapacitated, the parties (the AIP, children, and ETG) purportedly settled the case and sought to dismiss the proceedings.  After the settlement fell apart, an appeal from many of the orders of the guardianship court was had.  The appellate court held that the Petition for Incapacity could not be dismissed, as follows:

    The statutes and rules do not provide for the dismissal of a petition to determine the incapacity of an individual before the actual determination of the issue. In Borden v. Guardianship of Borden-Moore, 818 So. 2d 604 (Fla. 5th DCA 2002), the court held that a petition for guardianship could not be dismissed before receiving the report of the examining committee:

    Section 744.331 contemplates that once a facially sufficient petition to determine incapacity has been filed, the court must ensure that the alleged incapacitated person has an attorney, that an appropriately qualified examining committee promptly examines the person, and that an adjudicatory hearing be set no more than fourteen days after the filing of the report of the examining committee, unless good cause is shown to extend that time. Compliance with the requirements of section 744.331 is mandatory and the trial court's failure to adhere to those requirements constitutes reversible error.

    Id. at 608-09. See § 744. 331(4), Fla. Stat. (2008); see also In re Keene, 343 So. 2d 916, 917 (Fla. 4th DCA 1977) ("Proceedings to determine the competency of a person are generally controlled by statute and where a statute prescribes a certain method of proceeding to make that determination, the statute must be strictly followed.") An attorney for the person may not waive an adjudicatory hearing when required. See In re Frederick, 508 So. 2d 44, 45 (Fla. 4th DCA 1987).

    There is good reason for such a rule. If a person is incompetent, it is the duty of the court to assure that person's protection and his or her autonomy is respected to the greatest extent possible. See § 744.1012, Fla. Stat. (2008). To permit dismissal of proceedings where a party is in fact incompetent may endanger that person. On the other hand, without knowing whether the person is actually incompetent, the court could restrict a person's independent ability to deal with his property and place it out of the control of a person who may be completely capacitated. The guardianship statutes and rules should not be used to protect competent persons from their spendthrift ways or to protect their beneficiaries. An individual who is competent should not be subject to the control of the courts through guardianship proceedings, temporary or plenary.

    That the order dismissing the plenary guardianship proceedings was a nullity is further supported by the fact that the order did not dismiss the petition for emergency temporary guardian, revoke the letters of guardianship, or terminate the same. Section 744.3031(1), Florida Statutes (2008), permits the appointment of an ETG only after a petition for determination of incapacity has been filed. For an ETG to be appointed there must be a pending determination of incapacity. As such, the court could not dismiss the petition for incapacity and retain the ETG. Unfortunately, that is what occurred in these proceedings.

The guardianship law in Florida is now tangled, but one point is obvious:  do not file a Petition for Incapacity unless (a) the alleged incapacitated person is truly incapacitated, and (b) you understand that you may not be able to withdraw the petition.  Using a Petition for Incapacity as a tool to coerce settlement or some other behavior is therefore not acceptable (not that it ever was).

Full Article & Source:
Florida Guardianship Court Permits Dismissal of Incapacity Petition

Senior-to-Senior Aggression Common in U.S. Nursing Homes

FRIDAY, Nov. 21, 2014 (HealthDay News) -- Elderly adults who live in nursing homes may commonly deal with aggressive or inappropriate behavior from fellow residents, a new study suggests.

The study of 10 centers in New York state found that, in the space of just one month, nearly 20 percent of residents were involved in some type of incident with a fellow resident.

Most often, it was a verbal clash, with someone yelling or cursing at another resident. In other cases, the incidents involved hitting or kicking -- or, in a small percentage, inappropriate touching.

"We discovered that this is a much more prevalent problem than any of us realized," said researcher Karl Pillemer, a gerontology professor at Weill Cornell Medical College in New York City.

Results of the study were presented at a recent meeting of the Gerontological Society of America. Findings from studies presented at meetings are generally considered preliminary until they've been published in a peer-reviewed journal.

Pillemer's research also zeroed in on the residents who were most likely to be involved in incidents. "Typically," Pillemer said, "they were people who were in the moderate stages of dementia, but were still physically able to get around."

That makes sense, according to Dr. Laura Mosqueda, a geriatrics specialist who was not involved in the study. Mosqueda directs the National Center on Elder Abuse at the University of Southern California, in Los Angeles.

Nursing home residents with dementia commonly become confused, and may act out aggressively -- but only if they have the physical capacity to do so, explained Mosqueda.

"I think the point this study raises is, who's responsible or accountable for this behavior?" Mosqueda said. "It's not the residents. In my view, it's the owners and people running the facilities. Do they have enough staff with the appropriate training?"

Still, Mosqueda also cautioned against an alarmist interpretation of the findings.

She noted that one of the more common forms of "aggression" in this study was "unwelcome entry" into another resident's room or going through another person's possessions.

"I'm not saying that behavior is OK," Mosqueda said. But, she added, it's common for dementia patients to become confused and unintentionally wander into a room that is not theirs.

For the study, Pillemer's team randomly selected 10 nursing homes in New York state that housed more than 2,000 residents altogether. Through staff interviews, surveys of residents and direct observation, the researchers estimated that over one month, nearly 20 percent of residents were involved in at least one incident of aggressive or inappropriate behavior.

Overall, 16 percent were involved in a verbal clash, while 10.5 percent had an invasion-of-privacy issue. Almost 6 percent were involved in a physical incident, like kicking, biting or hitting; and just over 1 percent experienced a sexual incident, like inappropriate touching, according to the researchers.
Pillemer said his team did not try to distinguish between "perpetrator" and "victim."

"It's often difficult to know," he noted. "And when you're talking about people with dementia, the traditional terms of 'perpetrator' and 'victim' don't hold up anyway."

One surprise, Pillemer said, was that men and women were equally likely to be involved in these incidents. "We'd suspected that it might be more common among men, but that wasn't the case," he said.

Pillemer added that the findings highlight an issue for nursing home administrators to address. Facilities need not only enough staff members, but also adequately trained ones, he said.

"We believe that the first line of defense is appropriate staff training," Pillemer said. He added that right now, staff often feel frustrated by incidents between residents, but "relatively helpless" in preventing them.

Full Article & Source:
Senior-to-Senior Aggression Common in U.S. Nursing Homes

Monday, November 24, 2014

Documentary: America's Secret Wealth Exchanges

This documentary is the story of a woman who lost her husband then was plunged into the ugly world of greed, corruption, and legal abuse via unnecessary and predatory litigation. The widow was intentionally kept from mitigating damages to the Estate due to the insider activities between lawyers, and an asset management company. The widow was denied economic and civil rights and half of the assets of the estate were drained from her husband's estate. This is known as a public, private, partnership scheme. The short film exposes the billions of dollars that are wasted each year and reveals what has been referred to as "The Dead Man's Scam" and "The Tomb Raider's Club" and involves attorneys, banks, and YOUR property! Legal fees for probate, divorce, and frivolous litigation add up to $315.5 billion per year.

There are cameos by Professor and Rabbi, Kris McDaniel-Miccio, Athena Roe, Shaun T. Lally, Rosemary Lytle, President of the NAACP, Maureen Grier, Carolyn Cathey, and video clips courtesy of Rod Fisher and Haimo Law. Many people falsely believe that having a Will protects your home and assets. Anyone can die suddenly and this is not an age related topic. While people do not want to think about death, everyone will die. The probate system is predatory and survives largely because we as a society have silly beliefs about death and estate planning. Amy Weinhouse, Howard Hughes, Sonny Bono are well-known figures who died without Wills.

Today, America's legal system is commonly used as an abusive bludgeon that forces millions of families to ask for government assistance. This timely documentary unravels the little known facts and statistics to viewers and will shock most. The short documentary reveals the often ignored topic of Estate administration and explains why America must wake up and start "watch dogging" the legal system before there is even more dire consequences to America's families and future.

Athena Roe of HAR Justice Presents: America's Secret Wealth Exchanges

Sunday, November 23, 2014

2 caretakers charged with stealing at least $184,000 from elderly couple

Laticia Lewis, left, and Justina Kemokai

Two live-in caretakers who worked separately for a Highland Park couple have been charged with stealing at least $184,000 through unapproved ATM withdrawals, fraudulent credit card transactions and double billing for services rendered.
The fraudulent activity dating back to 2011 was discovered by the couple's adult children during a review of their parents' accounts, according to police.

Justina Kemokai, 32, of the 6400 block of South Stony Island Avenue, Chicago, has been charged with financial exploitation of the elderly, theft, fraud and forgery.
Laticia Lewis, 40, of the first block of Oxford Drive, Carpentersville, has been charged with financial exploitation of the elderly and theft.

Full Article & Source:
2 caretakers charged with stealing at least $184,000 from elderly couple

Criminal Charges for Belfast Lawyer Accused of Bilking 2 Elderly Clients

A lawyer from Belfast accused of bilking two elderly clients of more than $300,000 has been indicted by a Waldo County grand jury for theft and misuse of entrusted property.

60-year-old William Dawson is accused of paying himself more than $150,000  from the bank account of an 86-year-old woman.

Court documents say he stole the money over four years, ending last year.

Dawson’s also accused of taking more than $135,000  from a 98-year-old woman.

That reportedly went on for nine months.

Court documents say Dawson overbilled the clients, too.

Last year a probate judge removed Dawson from control of the accounts.

Both women have since died.

The Maine Supreme Judicial Court ruled in December Dawson can still practice law, but under strict conditions.

He’s due in court on the criminal charges next month.

Full Article & Source:
Criminal Charges for Belfast Lawyer Accused of Bilking 2 Elderly Clients

Saturday, November 22, 2014

I-Team Exclusive: Senior Says She Was Forced Into Nursing Home

PHILADELPHIA (CBS) — A prominent attorney and guardian plead guilty to stealing millions from her elderly clients. Now, a woman in a separate case says she too is a victim.

Eyewitness News’ Investigative Reporter, Charlotte Huffman talks to the senior citizen who says she had everything taken from her and is being forced to live in a nursing home.

“I don’t belong here. I want my life back,” said Helen Hugo, an 85 year-old who says she’s been held against her will in a New Jersey nursing home for more than three years.

Hugo says her visitors are turned away.

In order to hear Hugo’s story, the I-Team had to go inside Hugo’s nursing home undercover.

“(People) should be made aware this kind of thing is going on,” said Hugo.

Hugo’s story 

In 2011, Hugo says she was forced out of her apartment at a senior living center and into the nursing home.

She says her IRA was cashed out and her belongings were taken.

“I still haven’t found my jewelry,” said Hugo who has not returned home or seen her cat since she was taken from her apartment in Buena, NJ on July 19, 2011.

Hugo blames her then court-appointed guardian, Barbara Lieberman.

“She steals, she lies, she’s an evil person,” said Hugo.

Guardianship in New Jersey

By New Jersey law a guardian is the person who is given the legal right to be responsible for the decision making and financial management of a person who is determined to be incapable of making their own decisions.

The I-Team obtained documents showing Atlantic County deemed Hugo “a mentally incapacitated person” shortly after she was removed from her apartment.

But a psychiatric evaluation performed in September at the request of Hugo’s family showed no evidence of incapacitation.

Instead, the New Jersey board certified psychiatrist, Joel Glass, M.D. writes in his summary that he found Hugo “is fully competent to decide where she would like to live and to make financial decisions.”

In separate case, Lieberman pleads guilty to bilking other seniors 

Lieberman recently admitted to stealing millions from other seniors who she was supposed to be helping.

On November 3rd in front of Superior Court Judge Michael Donio, Lieberman pled guilty to one first-degree count of financial facilitation.

Back in March, the Atlantic County court-appointed guardian and prominent Northfield attorney who specialized in elder-law was arrested by New Jersey State Police and accused of conspiring with Jan Van Holt and two others to steal from their clients.

Jan Van Holt is the owner of an in-home senior care company, “A Better Choice” and is a former county case worker for Adult Protective Services.

Van Holt allegedly referred clients to Lieberman, and vice versa.

Authorities say the two forced seniors into nursing homes and stole more than $2.4 million from at least 10 victims, most of who have since died.

Lieberman and Van Holt allegedly used the money to pay off six-digit credit card bills and buy things like a BMW and a luxury condo in Florida.

“I’ve got the state’s charges here saying you forged a power of attorney, transferred money into your own bank accounts, even executed wills for the people so you could steal from them after they died. How do you sleep at night?” CBS3 Investigative Reporter, Charlotte Huffman asked Lieberman.

Lieberman would not answer Huffman’s questions. Instead, she hid from cameras and called security.

In exchange for her guilty plea, Lieberman, 62, faces a 10-year prison sentence and has forfeited $3 million for restitution. She will also be required to cooperate with the state by providing information and potentially testifying against the others alleged to be involved.

Van Holt faces pending charges of first-degree money laundering, second-degree conspiracy and second-degree theft by deception. She remains in jail unable to post her $300,000 full cash bail.

The others charged in connection are Van Holt’s sister, Sondra Steen, 59, of Linwood, who helped run “A Better Choice,” and Susan Hamlett, 55, of Egg Harbor Township, who worked for them as an aid for elderly clients. Both face pending charges of second-degree theft by deception.

The charges against Steen, Hamlett and Van Holt are merely accusations and the defendants are presumed innocent until proven guilty.  Because the charges are indictable offenses, they will be presented to a state grand jury for potential indictment.

Full Article & Source:
I-Team Exclusive: Senior Says She Was Forced Into Nursing Home

The Saddest Story in the World

  ANGLETON, Texas (CN) - A Texas evangelist tricked a disabled woman into moving in with him, defrauded her of her $270,000 personal injury settlement and then kicked her out of his house, the woman claims in court.

Marilyn Rupard sued John David Crow and the John David Crow Evangelist Association on Nov. 13, in Brazoria County Court.

Rupard claims that Crow "represented himself as a pastor and investment advisor" when she met him. At the time, Rupard was pursuing a personal injury claim involving artificial hip implants that had disabled her.

When Crow learned about her personal injury claim, Rupard says, he "began to pressure her to reach a settlement as soon as possible."

Crow told her "that once she got a settlement he would assist her in investing her money and that he would take care of her personal needs," according to the complaint.

In September this year, when Crow learned she was about to get "a significant settlement" for her claim, he invited her to move into his home "on the pretext that he could assist her with her daily personal care, and assist her in investing her money," the complaint states.

Rupard says she moved into Crow's house on Sept. 20.

Crow "insisted on accompanying the plaintiff to her attorney's office to pick up the settlement check," which was for $270,000 Rupard says.

She claims that Rupard took the check from her attorney, "and kept it."

With her check in his hand, Rupard says, Crow told her that if she deposited the money in "her name only" she would lose her Social Security disability and Medicaid benefits.

He offered to deposit the $270,000 in his name and put the money under the control of his evangelistic association, Rupard says.

He could only do it, however, if Rupard wrote a letter giving him authorization - so she did, Rupard says.

She claims that Crow had the letter notarized - though she did not appear in front of the notary - and that on Oct. 2 Crow deposited the check into a new Wells Fargo account under both their names and Crow's evangelistic association.

When Rupard asked if she could have a debit card for the account, Crow "said she could not have a debit card and laughed at her," according to the lawsuit.

Full Article & Source:
The Saddest Story in the World

Documentary coming soon: The Economis Rape of America's Secret Wealth Exchanges

This preview of the documentary "The Economic Rape of America: Exposing America's Secret Wealth Exchanges" reveals the economic impact of destruction to America's families and economy as a result of probate courts and frivolous litigation. The wealth exchanges in probate courts are greater than the wealth exchanges on Wall Street. Additionally, $1.5 billion dollars a year goes for attorney fees at the expense of America's families. According to the U.S. Chamber of Commerce, America's litigation addiction costs our economy $264 billion dollars per year making America unable to compete globally.

This documentary is a must see for all Americans. America must demand probate reform so that the pillaging of estates by lawyers and non beneficiaries ends. America must wake up and demand better watch dogging of the judicial system which allows for an unfettered abuse of power.

Produced and Directed by Athena Roe, J.D. of theharcompany.org in collaboration with Shaun T. Lally of Still Focus Media.

HAR Justice presents, The Economic Rape of America's Secret Wealth Exchanges