Monday, May 22, 2017

Column: A great need for more reform in guardianship

Kathy Bosse
I applaud the Ohio Legislature for the sweeping changes in the area of guardianship. Our mother is an incompetent ward and while we are deeply grateful for Superintendence Rule 66, there is great need for more reform.

Hamilton County Probate Court under Judge Ralph Winkler as superior guardian desperately needs better laws to ensure the ward is pre-eminent before the court, that lawyers and guardians reflect that priority. The ward’s wishes and best interest should be paramount. Sadly, that is not the case.

As the ward’s daughter, I compiled a list of complaints with substantiations about the conduct of the guardian and lawyer in a letter presented to them. Their response letter pointed out one area I was wrong about, the other issues were not satisfactorily addressed or completely ignored including three medical issues. Contained within was an offer to resign with stipulations added.

Naively, I forwarded the situation to Judge Winkler, thinking the court would be appalled also. I expected my efforts to warrant internal quality assessment at minimum. What occurred was a hearing; still thinking the court would protect our mother, my brother and I went pro se.

Response filings by the lawyer for the guardian and lawyer further shocked us. One purposefully omitted information that would have conveyed a completely opposite conclusion. Another further stipulated “the guardian is willing to resign without litigating the propriety of removal.” The audacity to withhold the truth and tell the court not to apply the law seemed to bolster our point.

The court denied removal of the guardian and lawyer saying no evidence was adduced.

The magistrate was given the evidence and laws my brother and I felt were violated, however, we found out later, it was not specifically presented as exhibit “A,” etc... nor given at the hearing to the other side, therefore, not adduced. In addition to the burden of providing evidence, researching appropriate law violations, we were expected to know how to properly adduce and find replacements for the guardian and lawyer. A policy brochure for guardianship families outlining the handling of grievance procedure would have been invaluable in our quest on our mother’s behalf.

Instead of the court acknowledging that confidence, trust, competence and effectiveness are totally lacking in this situation, they have done a huge disservice at the literal expense of their incompetent ward. The law has to contain enough discretion to rule favorably for their ward.

None of the above reflects person centered care, best interest or wishes of the ward. The National Guardianship Association has done a tremendous job formulating standards, a coordinating checklist, a code of ethics – it is remarkably well done. Precedence in court is already set using this fantastic tool. Again, this was given to the magistrate. It is time to hold this inadequate, misaligned court system liable.

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Column: A great need for more reform in guardianship

Fulton man accused of forging checks, exploiting elderly

FULTON, Mo. - A Fulton man was charged on Monday, accused of taking advantage of an elderly person with disabilities.

According to an officer in a probably cause statement, the investigation began in December 2014 when a Fulton Nursing and Rehab Center resident and staff reported that several of the resident's checks had been either stolen or forged.

Bank statements showed that 15 checks had been stolen or forged between May and November 2014.

The checks were written to Bill Howser and totaled $5,885.

The officer said Howser was interviewed and "advised that he had used (the resident's) checkbook to buy food, beer, cigarettes and cloth(es) for (the resident)."

When asked why he wrote the checks to himself, Howser allegedly told the officer the checks were written to him.

The officer then contacted the facility, where the administrator said the resident had not received any new clothes and her clothes were worn out.

Howser is now charged with financial exploitation of an elderly/disabled person.

A warrant was issued on Monday for Howser's arrest.

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Fulton man accused of forging checks, exploiting elderly

Caretaker charged with bilking Whitinsville man of $195K

NORTHBRIDGE - A caretaker for an elderly man who is legally blind is facing charges after she wrote a check from his bank account to herself for $195,000, which the man said he never authorized.

Gloria S. Morvan, 61, of 51 High St. in the Whitinsville section of town, was arraigned April 25 in Uxbridge District Court on a charge of larceny of more than $250 from a person over 65 or disabled. She was released on personal recognizance, although her bank account was frozen and she was ordered to stay away from the victim. Ms. Morvan is scheduled to return to court May 30.

In a statement to Northbridge police, Ms. Morvan said the money was a gift from her client. “He said he wanted to help me because I helped him,” she told police. “He said he had more money than he knew what to do with it. I never asked for it.”

She told police she used the money to purchase a condominium at 51 High St., Whitinsville, for $160,000. An additional $15,000 went to pay closing and other legal costs and to refinish the first floor of the condo. The remaining roughly $20,000 was in her bank account.

Records from the Worcester County Registry of Deeds show that Ms. Morvan purchased the property with cash on Feb. 28. On April 6 the property was transferred from Ms. Morvan to the Gloria Morvan Trust.

According to court documents, Ms. Morvan had been working part-time as a caretaker since October for Harold Swart, 83, who lives in the Cotton Mill Apartments at 17 Douglas Road. Mr. Swart is legally blind and paid Ms. Morvan in cash to help him with chores such as paying bills and grocery shopping.

In the report prepared by Northbridge Patrolman Matthew Leonard, Mr. Swart told police that he would sign checks with Ms. Morvan’s assistance, through two sets of eyeglasses, and she would write the check out to whomever he was paying.

Mr. Swart told police he became suspicious of Ms. Morvan because she had helped him get a new ATM card and it never came in the mail. He asked an employee at the apartment complex to look at his Santander Bank statements and the employee noticed a $195,000 withdrawal and a check made out to Ms. Morvan in January.

The statement showed that the check had cleared after being deposited through the ATM at Bank of America in Uxbridge, although Ms. Morvan said she deposited the check inside the bank.

Mr. Swart also said he was missing a complete book of checks assigned to his account.

On April 20 Officer Leonard went to Worcester Superior Court to request Ms. Morvan’s bank records.

Lt. Timothy Labrie filed to freeze Ms. Morvan’s accounts and took a sworn statement from Mr. Swart that Ms. Morvan helped him write out checks for bills such as National Grid and cable TV but he never authorized her to write out the check to herself in the amount of $195,000.

Police arrested Ms. Morvan on April 24 at her condo.

Mr. Swart also told police that he owned a car, in which Ms. Morvan would drive him, but she had kept the car and wouldn’t give it back to him. Police returned the car to Mr. Swart.

Lt. Labrie said in an interview that Santander Bank, where Mr. Swart has his account, did not contact Mr. Swart to question the $195,000 personal check to Ms. Morvan, even though he had never signed a check for anything nearly that large.

Although Mr. Swart filed a claim of fraudulent activity directly with the bank, police have not heard yet whether Santander will cover the $195,000 loss to Mr. Swart.

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Caretaker charged with bilking Whitinsville man of $195K

Sunday, May 21, 2017

Supreme Court Throws Out State Rule Protecting Nursing Home Residents From Having Rights Signed Away

A lot of people in nursing homes have adult children or other trusted people with authority to make financial, legal, and medical decisions on their behalf. However, can folks with power of attorney also sign away someone else’s right to have their day in court? According to the U.S. Supreme Court, yes.

As we’ve covered before, a growing number of nursing homes are including forced arbitration clauses in their residents’ contracts. These provisions prevent the residents from bringing lawsuits against their nursing care provider, and from joining with other residents in a class action.

Compounding concerns for nursing home residents, many of them do not sign their own contracts. Instead, their children have power of attorney over their affairs. These representatives may not realize that they are signing away their loved ones’ constitutional rights.

In 2015, the Supreme Court of Kentucky ruled [PDF] against multiple nursing home operators, concluding that while power of attorney might give someone the authority to sign contracts on your behalf, it doesn’t explicitly allow them to preemptively waive your rights to a jury trial.

“[N]one of the power-of-attorney instruments involved in these cases provide a manifestation of the principal’s intent to delegate that power to his agent,” wrote the Kentucky court. “[W]e conclude that the agent was not so authorized, and that the principal’s assent to the waiver was never validly obtained.”

The Kentucky court held that the country’s founding fathers “deemed the right to a jury trial to be inviolate, a right that cannot be taken away; and, indeed, a right that is sacred, thus denoting that right and that right alone as a divine God-given right.”

The nursing home operators petitioned the U.S. Supreme Court [PDF] last year, arguing that the Kentucky court’s ruling violates the Federal Arbitration Act.

That 1926 law states that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

And today, in a 7-1 ruling, SCOTUS agreed that their counterparts in Kentucky had indeed violated the FAA by “singl[ing] out arbitration agreements for disfavored treatment.”

Writing for the majority, Justice Elena Kagan that the FAA “preempts any state rule discriminating on its face against arbitration… And not only that: The Act also displaces any rule that covertly accomplishes the same objective by disfavoring contracts that (oh so coincidentally) have the defining features of arbitration agreements.”

Justice Clarence Thomas was the lone dissenter, repeating his long-held belief that the FAA does not apply to disputes brought through the state court system. Recently confirmed Justice Neil Gorsuch did not participate.

Last September, the Centers for Medicare & Medicaid Services (CMS) issued a new rule that would have barred most longterm care facilities from using forced arbitration clauses in contracts for new residents.

The nursing home industry subsequently sued to stop the rule and a federal judge has put the regulation on hold, and is currently in legal limbo.

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Supreme Court Throws Out State Rule Protecting Nursing Home Residents From Having Rights Signed Away

How some Ohio nursing homes are putting the lives of society's most vulnerable at risk

Six months ago, News 5 Investigators began looking into the case of a local father, whose son had many questions about his dad’s health and experiences at a Strongsville nursing home. In the midst of our investigation, we uncovered eye-opening violations in Northeast Ohio’s most problematic nursing homes, with some including severe infractions that led to death. So we wondered how difficult it really was to get answers, and whether or not these facilities would own up to their past problems. What we found may surprise you.

‘I don’t believe I am the only one’

Donald Gallick Sr. was a man called hard-working. He was a man called helpful. He was also a man called “Dad” by his son, Donald.

“Always willing to do what needed to be done,” the younger Donald says of his dad. “He appreciated sports, a Buckeye fan…a hard worker, faced any challenge, very easy to talk to.”

But as he got older, Donald Gallick Sr. began having health issues. He suffered a minor stroke and it became difficult for him to drive or walk.

“One day, I came over, and he had tripped on a chair,” said the younger Donald, a lawyer who deals with healthcare fraud. “And I found him lying on the ground for the better part of a day.”

Now, the younger Donald can’t stop wondering, ‘What if?’, when it comes to whether or not his dad received the best care while he was in Falling Water Healthcare Center in Strongsville in 2013. He questioned how his father was treated there, but believes he didn’t get the answers he needed.

“I want to know, is this being treated?” he questioned. “What is actually the diagnosis? Is he going to walk again?”

Ohio Nursing Homes: Is your family affected? Check our interactive map here.

Donald Gallick Sr. passed away at another facility in 2014.

“…This was my experience,” he said. “And I don’t believe I am the only one.”

The Gallicks’ story is one of many, as numerous nursing homes in Northeast Ohio have racked up thousands in fines and low ratings by the Centers for Medicare and Medicaid Services (CMS).

(Click to Continue)

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How some Ohio nursing homes are putting the lives of society's most vulnerable at risk

Disability Rights Ohio sues Gov. John Kasich, state officials

COLUMBUS, Ohio -- Advocates for disabled Ohioans filed a class-action lawsuit against Gov. John Kasich and the state of Ohio over what they say is illegal segregation of institutionalized people with disabilities.

Disability Rights Ohio filed the complaint Thursday in federal court on behalf of six Ohioans with disabilities and approximately 27,800 similarly situated Ohioans. The complaint alleges the state has not complied with the Americans with Disabilities Act and the U.S. Supreme Court decision Olmstead v. L.C. and E.W.

State officials pushed back on the claims, saying the state is working with providers.

Why are they suing?

The lawsuit alleges people with intellectual or developmental disabilities who want to live and work in their communities can't because of limited state funding.

Large intermediate care facilities have eight or more beds and are "highly regimented and controlled, with little privacy, independence, or personal autonomy," according to the complaint. Facility residents have few if any interactions with people other than paid staff. If they work, most facility residents work in sheltered workshops, which the organization says further segregates people with disabilities.

Of the 5,800 individuals living in those facilities, 2,500 are on a wait list for a Medicaid waiver to receive services at home. Another 22,000 people who are not institutionalized are on the wait list.

Last year's state budget allocated millions of dollars for additional waivers, but Disability Rights Ohio Executive Director Michael Kirkman said the money won't fix problems with how the waivers are awarded.

Ohio is unique in that developmental disability services are provided through each of the state's 88 counties. Medicaid waivers that cover services provided in homes and communities are partially funded with local dollars. Residency in an integrated care facility is covered by Medicaid, which Disability Rights Ohio says is a disincentive to move people out of the facilities.

"Where you receive services should not depend on where you live," Kirkman said at a Thursday press conference.

Disability Rights Ohio raised its concerns with the Kasich administration in 2014. Negotiations followed, Kirkman said, but didn't pan out. The lawsuit seeks a court order forcing the state to expand choices for people with disabilities.

What does the administration say?

In addition to Kasich, the lawsuit is suing the directors of the Department of Developmental Disabilities, Department of Medicaid and Opportunities for Ohioans with Disabilities.

Zach Haughawout, a deputy director with the state developmental disabilities department, said Disability Rights Ohio is not being truthful about its conversations with state officials to address their concerns. Haughawout said that department attorneys attempted to sit down with Disability Rights Ohio as recently as two weeks ago, ahead of the lawsuit. Disability Rights Ohio confirmed a meeting has been set up for next week.

Last year's state budget allocated $300 million to expand community-based options for individuals with developmental disabilities and their families. The budget created 3,000 new waivers to cover community-based options. Haughawout said 1,200 waivers will provide options for people who want to leave the facilities or would have no other choice but to go there.

"Rather than allow the Department of Developmental Disabilities the time to implement budget changes negotiated with providers, county boards of development disabilities, self-advocates, and family members, they've decided to subject Ohioans with developmental disabilities to their singular vision  of what is best for them," Haughawout said in an email.

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Disability Rights Ohio sues Gov. John Kasich, state officials

Saturday, May 20, 2017

Big changes for guardianship in Nevada

RENO, Nev. (KOLO) - Many of us remember the actor Peter Falk as the bumbling detective “Columbo” or as the grandfather-story teller in "Princess Bride."

In New York state, prosecutors know him as a son who pushed for the arrest and conviction of a man who befriended his wealthy mother, isolated her and bilked Madeline Falk out of a million dollars.

“He did public service announcements for financial exploitation. He felt very passionately about it,” says Catherine Falk.

But what you may not know is Falk had two daughters who found out about their father's death through news media accounts.

Catherine Falk says she fought her stepmother in court for months to gain access to her father, who by the time she got to see him suffered from dementia.

“You know the burden should not be placed on the person--the family that's wanting to see visitation. The burden to isolate should really be put on the power of attorney to justify why are you isolating this person from all of these people,” says Falk.

If you think such things are impossible in this day and age, think again.

Current laws in Nevada allow a court appointed guardian--be it relative, a private company, or public guardian--to make all decisions for the person who is declared incapacitated, sometimes with very abusive results.

“A private professional guardian who had moved that elderly person, and was charging unbelievable fees. One day it appeared as if they billed 25 hours in one day.....yeah.” testified Barbara Buckley with Legal Aid Center of Southern Nevada.

Her agency has investigated and represented “Protected Persons” for more than a year now.

Buckley told Assembly Judiciary Committee members she supports both Senate Bills 433 and 360 because they paint clear-cut lines with what rights a "protected person" has, as well as directs the guardian to what they can and cannot do, and what needs to be reported to the court that oversees the process.

"The Bill of Rights" which she authored, if passed, would make Nevada only the third state in the nation with such a system in place.

“So this to me is one of the best bills in the country,” said Catherine Falk about SB 360 which contains the Bill of Rights as well as criminal penalties for guardians convicted of elder abuse or exploitation.

Guardians and facilities that violate the bill of rights can face civil litigation. But both Senate Bill 433 and 360 must make their way to the governor's desk first.

Assembly Judiciary took no action on these two bills May 15, 2017.

But as one lawmaker said last week, this session could be the year of marijuana, as well as changes to guardianship.

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Big changes for guardianship in Nevada

Why Many People Abandon Friends and Family With Dementia and Shouldn't

Several years ago, a close family member was diagnosed with breast cancer. The diagnosis was shocking, but the response was heartening. The oncologist analyzed the tissue sample down to its very receptors and provided a crystal-clear roadmap for treatment. An experienced and compassionate lay “navigator” was assigned to help guide my loved one through treatment. Friends and family rallied, making regular visits, cooking meals, holding hands, wiping tears, and, with time, becoming fierce advocates for disease awareness and research.

This response to breast cancer is part of an entire movement of support that has been embraced on all levels of society and has even engaged NFL players to bling themselves out in pink for one weekend of football every fall. It’s a model of how we should respond to any disease: wide-eyed with interest and support and dedicated to caring and curing.

Sadly, the picture couldn’t be more different for individuals suffering from Alzheimer’s disease and other forms of dementia.

Symptoms are insidious and easy to miss or ignore in early stages, and the diagnosis is never as certain as with many cancers since we do not routinely collect a sample of brain tissue to analyze. There is a dire shortage of specialists trained to manage dementia and even fewer in the pipeline. There are almost never volunteer “navigators” to support people through the many years of this disease. Precious few people, sports figures and celebrities have become advocates for promoting Alzheimer’s awareness and research.

All these deficits exist despite the fact that most people have a loved one or close friend with Alzheimer’s disease.

This disease affects and estimated 5.5 million Americans and its numbers are growing rapidly according to the 2017 Alzheimer’s Facts and Figures put out by the Alzheimer’s Association. It is the fifth leading cause of death after the age of 65, and reported deaths have increased by nearly 90% in the past five years. Currently, it is the most expensive disease to our economy, and yet the U.S. spends only a tenth of the research dollars for Alzheimer’s disease that are spent for heart disease and cancer combined.

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Why Many People Abandon Friends and Family With Dementia and Shouldn't

The Italian village with more centenarians than anywhere else in the world

The small Italian village of Acciaroli has the highest number of centenarians in the world but what is their secret to long-life and happiness? ITV Health Editor Rachel Younger finds out as she reports for On Assignment.

Retirement in this Italian village looks very different to in the UK Credit: On Assignment/ ITV

Growing old in 21st century Britain is no picnic. Social care is on its knees, the waiting time for hip replacements is rising by the day and loneliness amongst the elderly is in danger of becoming an epidemic.

Among my parents' generation of sprightly septuagenarians no one seems to fancy hanging around long enough to get that once prized telegram from the Queen. "Shoot me at 85!" they shout, when I tell them I'm off to Italy to meet a bunch of centenarians.


For this couple the small village of Acciaroli, close to Naples, is the perfect place to grow old Credit: On Assignment/ITV

The small village of Acciaroli, close to Naples, has a higher percentage of people hitting 100 than anywhere else in the world. My mission is to find out why.

Blame the red wine and long lunches if you like, but scientifically speaking, I can't say I came home much the wiser. Yes, there is some evidence pointing to genetics, diet, even the local strain of rosemary but frankly the samples aren't big enough, the research not yet fully tested.

What we did discover was a corner of Italy where people have all the time in the world.

No one rushed us through our interviews, everyone offered us a drink, most wanted to invite us back to the family home or local restaurant for a three-course meal. Bowls of pasta that in one cafe were made from scratch by 95-year-old Maria because she likes to keep her hand in. Because she reckons keeping busy - but not too busy - keeps her young.


95-year-old Maria says making pasta from scratch keeps her busy and helps keep her young Credit: On Assignment/ ITV

I did hear the term "office hours" once, but only because that's how 94-year-old Beppe likes to describe the daily appointment he keeps with his friends to play cards at the local cafe.

It's not that the former fisherman doesn't care about his health. Beppe gave up smoking in his eighties to try to outlive his brother. But he's got better things to do than sit around dwelling on it.


Fishing, playing cards, and meeting up with friends help pensioners in Acciaroli keep busy Credit: On Assignment/ ITV

Seriously, this sun-drenched peninsula is no utopia. Mafia style shootings aren’t unknown and there isn't much state sponsored care of the elderly.

Instead families and neighbours look out for each other, everyone's in and out of each other's houses, people never move from here and no one seems to be alone for more than a few minutes. It's life affirming and frankly envy-inducing to witness.

We meet a couple of farmers not far off a century themselves who like to share a drink before dinner. "To life!" they bellow, toasting each other with toothless grins, hamming it up for our cameras. "It's a wonderful life, if you know how to live it!"

I'd like to grow old here, enjoying the sunshine, the food and wine, and the company of my friends.
And if I had to guess, I'd say that might just be the secret behind their longevity.

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The Italian village with more centenarians than anywhere else in the world