Monday, March 19, 2018

Court documents: Sacramento County deputy sent woman, 75, to Philippines

A petition for conservatorship of a woman alleged to have been the victim of elder abuse by two Sacramento County sheriff's deputies says the 75-year-old suffers from dementia and did not remember why she was sent to the Philippines.

The petition, filed March 8 by Rosalie Achiu's nephew in Washington, said the woman "suffers from dementia" and is "unable to resist fraud or undue influence and lacks the capacity to provide informed consent and make medical decisions on her own behalf."

The documents describe the relationship between Achiu, Deputy Stephanie Angel, a 14-year veteran of the department, and Angel's partner, a six-year veteran of the department.

It says Angel and Achiu met in mid-January.

A commendation from the sheriff's department given to Angel for her help with Achiu states the two met Jan. 14. She would return a day later to check on her again, according to the commendation.

The petition goes on to allege that Achiu was "taken away from her own residence" and moved into one of the deputies' homes.

Angel was that deputy.

"She asked and pleaded to stay with me," Angel told KCRA 3 Thursday.

The records state that over the next few weeks, multiple withdrawals were made from Achiu's bank accounts and her home was listed for sale.

Angel and her attorney told KCRA 3 Thursday that Rosalie was intent on doing something with her home, whether that involved a sale, turning it into a rental or renovations.

"When it came to Rosalie's house, she basically just wanted what was most efficient to bring in the most amount of money. I mean, obviously. So, I consulted a Realtor that I knew and asked her opinion," she explained. "This Realtor said, 'I think you should do this. This will get you the most money. This is probably what you should do.' So, that's what I was trying to do -- what's best for her."

Next, the documents allege one of the deputies opened a joint bank account with Achiu. Then on Jan. 29, according to the records, the deputies took Achiu to the bank and "had the bank drill out the locks" to her safe deposit box.

"Rosalie needed items out of her safety deposit box to go with her to the Philippines. So, it was her request that we go to her safety deposit box and get those out," Angel said. "While we were there, Rosalie asked that she take all the items out and store them with her other belongings in the event she didn't want to come back from the Philippines."

That same day, documents say, Angel and her partner obtained a rush passport from

The following day, Angel obtained power of attorney over Achiu from a Roseville attorney, documents allege.

"He evaluated her. When you get evaluated for power of attorney, they obviously evaluate your mental competency and ability to make sure people aren't taking advantage of you," Angel said. "So, the lawyer spoke with her and did not see anything wrong."

The records go on to say that on Feb. 1, the deputies took Achiu to Sacramento International Airport, where she left for the Philippines on a one-way ticket.

Angel said Achiu wanted to go to the Philippines. In preparation for the trip, Angel said she mailed a letter to Achiu's family in the Philippines to explain how she'd been helping Achiu. She said she got Achiu's hair and nails done and prepared her personal belongings, including medications.

Thirteen days later, federal agents located Achiu in the Philippines and said she couldn't remember why she was there and wanted to return to the United States.

The records show she is now in an area hospital until a conservator can be chosen and an assisted living facility can be found.

Sheriff's department investigates

The sheriff's department received a complaint in January from someone concerned for the welfare of Achiu, who lived in North Highlands, officials said.

The complainant alleged that two deputies took advantage of the elderly woman, who possibly suffers from a diminished mental capacity and who had not been seen in several days, according to investigators.

The sheriff's department consulted with the Sacramento County District Attorney's Office, the FBI, the U.S. Attorney's Office and the U.S. Marshals Service after the woman's whereabouts were unknown for several days.

During the investigation, detectives discovered that the woman was put on an airplane and sent to the Philippines to stay with extended family, sheriff's officials said.

At the request of the woman's family, officers went to the Philippines and found the woman, interviewed her and brought her safely home.

Angel: The investigation is retaliation

Angel believes the investigation by the sheriff's department comes in the wake of complaints she said she's made within the department pertaining to sexual harassment and the falsification of training records.

"There was the additional sexual text messages, innuendos, inappropriate touching," she said. "And I complained to five different supervisors over the last several months."

Angel said her partner, who is also being investigated, pleaded with a lieutenant three weeks before the investigation for the harassment to stop or they would consider filing suit against the county.

"We told them that, not only would we complain about the harassment retaliation, but the department is having us forge training records," Angel said. "And we told them that we would come out about that."

Sheriff's Sgt. Shaun Hampton issued this statement in response to Angel's allegations:
"If Ms. Angel alleged that she filed any sort of complaint last year alleging she was the victim of sexual harassment or inappropriate conduct, there is no record of any such complaint ever being filed.
"As to her remarks in defense of her conduct in the instant matter, unfortunately the investigations are still ongoing and no further information can be provided at this time."
The district attorney's office could not comment while the matter is still being investigated.

Full Article & Source:
Court documents: Sacramento County deputy sent woman, 75, to Philippines

Clark County DA Steve Wolfson kept quiet about aide’s theft

A longtime aide to District Attorney Steve Wolfson stole nearly $42,000 from his campaign four years ago to cover a gambling habit, but was allowed to pay back the money and avoid being charged, a Las Vegas Review-Journal investigation has found.

Audrie Locke, 45, the district attorney’s community liaison and spokeswoman, admitted in an interview that she took the campaign’s checkbook from Wolfson’s office without his knowledge and wrote a series of checks to herself in 2014. She blamed the theft on money troubles tied to her video poker addiction and fragile emotional state at the time over the deaths of her mother, three close friends and two dogs.

“I have a gambling problem … So there’s a lot of money issues that come with that, and that’s what happened,” she said. “The gambling spiraled. And if you talk to anybody who’s ever had a gambling problem, the first challenge that they have is recovering financially.”

The checks were written between February and August 2014 during Wolfson’s election run and about half of the money was stolen between July and August, a knowledgeable source said.

Wolfson’s failure to pursue potential felony criminal charges against Locke has raised concerns about whether she received favorable treatment because of her close personal relationship with the district attorney. Wolfson is running unopposed for reelection this year, and the candidate filing period ends Friday.

Locke said she had gambled away her paychecks and needed the cash to pay her bills, but dipped further into the campaign account during those two months hoping to win enough money playing video poker to pay back the $42,000.

At the time, Locke, who was using her maiden name Audrie Dodge , was on Wolfson’s campaign payroll performing a variety of duties, including for helping to maintain the campaign’s books and filing contribution and expense reports with the state. She also was earning about $80,000 a year in her high-profile job at the district attorney’s office.

Wolfson said in an interview that Locke has been a “trusted employee” for 14 years dating to his days as a Las Vegas councilman, and he still trusts her.

“She’s been the best employee I’ve ever had in 37 years, times 10,” he said. “If I could have a hundred Audries, I would love to have a hundred Audries.”

Wolfson defended his decision not to report the campaign theft to Las Vegas police, saying he was using his “discretion” as the victim to decline to pursue criminal charges.

“I believe that this is an aberration,” he said. “I believe she had an illness, and I believe that it’s the illness that caused her to do this … I decided to give her a second chance to prove to me that she would get treatment for her addiction.”

Locke repaid the $42,000 with the help of her family within two weeks after Wolfson discovered the theft in early August 2014, Locke and Wolfson said.

She also resigned from the office amid the hushed-up scandal on Aug. 25, 2014, and entered an intensive, six-week gambling addiction program before being hired back two months later.

Wolfson kept the reason for Locke’s sudden departure quiet, telling other staff that her resignation was for health reasons, current and former employees of the district attorney’s office said.

Decision criticized

His decision not to seek criminal charges has attracted criticism.

“I don’t know if he affords that same opportunity to other individuals that he prosecutes,” said Clark County Commission Chairman Steve Sisolak, who was present when the commission appointed Wolfson to the district attorney’s job in 2012.

Jack Pitney, a political science professor at Claremont McKenna College in Southern California, said the decision creates a perception problem for the district attorney.

“It looks bad,” he said. “I can’t speak to the legalities, but the real question is would someone else under similar circumstances have gotten the same treatment?”

Kathleen Bliss, a former longtime federal prosecutor in Las Vegas, agreed.

“He clearly showed mercy for a friend,” Bliss said. “I hope that he exercises his discretion to similarly show mercy for those who may have troubling situations like this woman, but who may not have the same kind of access to him as she obviously does.”

Added Robert Fellner, executive director of transparency for the conservative Nevada Policy Research Institute: “The obvious conflict of interest in him determining not to prosecute her but to continue to employ her in the district attorney’s office is incomprehensible. It’s just mind-blowing to me.”

Wolfson said his office has occasionally abided by the wishes of victims of crimes and not prosecuted cases. He also said his decisions involving Locke were made after discussions with several people, including Greg Smith, the district attorney’s human resources director.

Smith said all office employees with addictions are treated in the same manner.

“She’s not the first and she wouldn’t be the last,” he said. “It’s just easier for our office to be consistent in our practices.”

Wolfson said he also spoke to his chief civil lawyer Mary-Anne Miller and then-Nevada Secretary of State Ross Miller.

“I don’t think he cut her inappropriate slack,” Mary-Anne Miller said. “He was genuinely seeking direction from the people he reached out to.”

Wolfson also consulted with Dave Thomas, one of his campaign managers.

“I think he was very conscientious in analyzing the situation and trying to do the right thing,” Thomas said. “The root of (her conduct) is a mental illness, not a desire to do criminal activity … I give her money all the time, and I’m not concerned about it.”

Still handling money

Locke continued to be paid by Wolfson’s campaign — she got more than $1,000 — during her two-month absence, records show. When she returned to her job in the office on Oct. 20, she stepped up her duties as the district attorney’s spokeswoman and took on fundraising efforts for office social events and benefits for ailing employees.

Locke, who said that she has not gambled since the thefts were discovered, confirmed in an interview with the Review-Journal that she now handles money within the district attorney’s office.

Wolfson confronted Locke and informed her that he intended to report the embezzlement to his human resources director in an Aug. 5, 2014 personal email exchange obtained by the Review-Journal.

“I want to know all of my options as district attorney,” Wolfson wrote. “Therefore, tomorrow I plan to sit down with him to inform him of your acts of theft, forgery and whatever else is appropriate. As you know, you handled monies, whether in the form of cash, checks, etc. and he needs to be made aware of what has happened.”

Locke admitted the theft in an emotional email response that evening to Wolfson.

“I can’t emphasize enough the shame and regret I feel,” she wrote. “More than once I planned to come in and talk to you about the situation but never got the nerve. It is, and was always, my intention to return the money. I know that is a hollow statement at this point.

“The worst part is betraying your trust. I know I’ll never get that back, and that is unimaginable to me.”

Wolfson was appointed district attorney in 2012 and first elected in 2014 to an office the county website says has a $65 million budget and more than 700 employees.

So far, he has raised more than $615,000 mostly from casino, business and legal interests, his latest campaign contribution report shows.

Debt troubles

Locke’s financial problems had threatened to erupt over the years. The home she owned with her husband, John M. Locke, was on the brink of being sold at a trustee auction several times. In October 2009, the IRS filed a $78,298 lien on the property for unpaid taxes, county records show. The IRS lifted the lien in March 2013 after the couple sold the modest two-story home, according to the records.

Locke said she and her husband did not make any money on the sale.

That same month, a friend of Locke’s filed a complaint in Justice Court to recover a $5,000 loan he made to her in May 2009. David Koeb said in the complaint that Locke told him she needed the money to stop the foreclosure of her ailing mother’s house.

Las Vegas Justice of the Peace Karen Bennett-Haron signed a default judgment against Locke in April 2013, ordering her to pay Koeb $6,900, which included interest and court costs. Her wages at the district attorney’s office were garnished, and by the end of October 2013 she had paid back $5,211. Koeb did not return calls for comment, and Locke would not discuss the matter other than to say she paid back all that she owed.

In October 2010, payday loan giant Rapid Cash threatened to repossess Locke’s 2005 Dodge Magnum, which she had posted as collateral for more than $9,000 in loans she received from the company. Rapid Cash later filed court complaints to recover money but never pursued the cases.

When Locke returned to the district attorney’s office in October 2014, she started using her married name for the first time since her 1999 marriage, records and interviews show.

Eventually, Locke started handling money within the district attorney’s office as a fundraiser and social coordinator, according to emails obtained by the Review-Journal.

She was part of an office social committee, earning a reputation as the “cruise director” and “party planner.” She promoted bake sales, golf tournaments, weight-loss competitions and hot dog eating contests to raise money for office social events and ailing employees who were unable to work.

In one contest, staffers were asked to make donations for the right to guess the number of Starburst jellybeans in a large jar filled with the colorful candy. Whoever came the closest was to get half the donations with the rest going to the social committee for office events like the annual holiday party.

By the end of October, emails show, Locke boasted that the office had raised more than $10,000 for the victims of the Mandalay Bay shooting, primarily by raffling employee-donated gift baskets and selling VegasStrong T-shirts and hoodies.

She raised additional money for other office projects through the sale of tumblers, polo shirts, hats and sports bottles bearing the district attorney’s office logo, emails show. Sometimes, she would direct the staff to buy raffle tickets from her or to order merchandise through her.

Amid the office fundraising, Locke started her own graphics company in April 2015, allowing her to obtain more money from Wolfson’s campaign. She filed papers with the Nevada secretary of state’s office incorporating the company called Gemini Graphics, which printed logos on T-shirts. She listed herself as the resident agent and lone officer.

The secretary of state revoked the company’s license on April 30, 2016 for failing to provide an updated list of officers, but records show the company continued to receive money from Wolfson’s campaign.

Locke has personally received more than $25,500 under both of her last names for working on Wolfson’s campaigns dating to 2011 when he was a city councilman, according to figures compiled by the secretary of state’s office. Gemini Graphics has earned nearly $5,000 since 2015.

Most recently, Locke formed a new graphics company in August called Karmic Thread. She said in an interview that she has used the company to produce T-shirts and hoodies that were sold to office staff for various charities, including funds to help victims of the Oct. 1 shooting.

She said the district attorney’s office has reimbursed her expenses. She has made no profit for her work, she said.

Full Article & Source:
Clark County DA Steve Wolfson kept quiet about aide’s theft

Pa. citing more Philly-area nursing homes for lack of nursing care

Belle Haven Healthcare and Rehabilitation Center
After receiving criticism as being lax, the Pennsylvania Department of Health has increased the number of citations given for inadequate staffing in Philadelphia-area nursing homes over the last two years.

The agency cited facilities 12 times last year for violations of staffing rules, up from six in 2016 and no more than two in any of the previous eight years.

The citations are for not meeting the minimum of 2.7 hours per day of direct nursing care per patient, not having a registered nurse on duty when required, or more broadly not having enough staff to meet the needs of patients as defined in their care plans.

When facilities miss the 2.7-hours-per-day requirement — which advocates have long criticized as too low — they are typically in the 2.5- or 2.6-hours-per-day range.

“Facilities should budget higher, recognizing that their call-out rates are usually significant,” which will put them under the requirement, said David Hoffman, a nursing home expert and former federal prosecutor. “The facilities that budget at 2.7 should get slammed.”

Belle Haven Healthcare & Rehabilitation Center in Quakertown was cited in 2014, 2016, and 2017 for inadequate staffing. Officials with the facility’s owner, Guardian Elder Care of Brockway, Pa., did not respond to a request for comment.

Also cited for lack of staffing was St. Francis Center for Rehabilitation & Healthcare in Darby Borough, which had its license revoked after an inspection last year and now has a provisional license. The state later fined the facility $675,750 for a wide range of violations.

Russ McDaid, president of the Pennsylvania Healthcare Association, a nursing home trade group in Harrisburg, downplayed the increase. He cited the Health Department’s policy change in July 2015 to allow anonymous complaints after they were prohibited for three years.

“We know that that’s yielded a strong uptick in complaints in nursing facilities, and we know that virtually all of them are accompanied by a complaint visit of some type. Seeing it go from six to 12, year over year, across 189 facilities, I wouldn’t characterize as a significant uptick,” he said, referring to the number of nursing homes in Bucks, Chester, Delaware and Montgomery Counties and Philadelphia.

The mix of reasons for surveys that resulted in citations for inadequate nursing has not changed much over the years. It has been split pretty evenly between licensure or recertification surveys and surveys in response to complaints.

The Health Department did not respond to questions about what caused the increase in citations, which do not seem to have fines attached, according to a roster of penalties dating to early 2014. “Our priority is making sure that the deficiency is corrected. Civil penalties may be issued at a later time than the sanction,” department spokeswoman April Hutcheson said.

A 2016 Pennsylvania auditor general’s report criticized the department as not doing enough to ensure sufficient nursing staffing levels. That report mentioned a federal suggestion of a 4.1-hours-per-day minimum for nursing care and noted that Pennsylvania’s minimum was set in 1999.

At a Feb. 23 meeting in Germantown called by State Sen. Art Haywood (D., Phila.-Montgomery) on how the state handles care complaints, the state’s long-term-care ombudsman, Margaret Barajas, said her office received 1,724 complaints last year, with 574 of them related to staffing.

What she said she hears from nursing home residents: “It’s not the staff’s fault. There’s just not enough.”

Full Article & Source:
Pa. citing more Philly-area nursing homes for lack of nursing care

Sunday, March 18, 2018

Lawsuits accuse staff at Whiting of psychological, physical torture

Attorney Antonio Ponvert III
The brother of the man repeatedly abused at the Whiting Forensic Division has filed two lawsuits on his behalf — one against the state and the other against 12 of the forensic nurses and treatment specialists who the suit charges carried out the abuse.

The lawsuits allege that the state employees responsible for the treatment and care of William Shehadi Jr., 59, “a profoundly mentally ill” man, subjected him to “daily mistreatment, degradation, physical assaults, ridicule and other forms of brutal and inhuman psychological, emotional and physical torture” at the maximum-security Whiting Forensic Division of Connecticut Valley Hospital in Middletown.

At a press conference Thursday, Bridgeport attorney Antonio Ponvert III, of Koskoff, Koskoff & Bieder, announced the suits with Shehadi’s brother and co-conservator, Albert Shehadi of Greenwich, and mental health advocate Karen Kangas, the other co-conservator, standing beside him.

“If the measure of a civilization is how it treats its weakest members, the mistreatment and abuse of Bill Shehadi inflicted over a period of months and years by the state employees responsible for his care ranks our state very low,” Ponvert said.

“(Shehadi’s) mental illness is severe and persistent, and it renders him profoundly vulnerable, incapable of protecting himself from harm or even attending to some of his most basic needs and tasks of human survival,” Ponvert said. “The United States Constitution and the Connecticut Bill of Rights require the state to provide to Bill Shehadi and to all other institutionalized individuals humane and dignified treatment, adequate medical and mental health care and freedom from harm.”

From Feb. 27 to March 22, 2017, Whiting forensic nurses and treatment specialists inflicted on Shehadi “unrelenting sadistic physical abuse, neglect, exploitation, humiliation and psychological torture,” the suits allege.

It says hours of abuse captured on videotape show hospital workers kicking, hitting and poking Shehadi as he cried and cowered on his bed or on the floor in his room.

The suits contain a litany of accusations of varying severity. In one example, they say Lance Camby, a treatment specialist who was arrested, threw food at Shehadi, spit food on his shirt, bed and pants, which Shehadi then ate, and that Mark Cusson, a Whiting forensic nurse, who also was arrested, repeatedly kicked Shehadi for two minutes, while he was laying on his bed.

In September and October 2017, ten staff members were arrested after a state police investigation. All 10 have since pleaded not guilty to various charges. A total of 37 staff members were placed on paid administrative leave. As of Wednesday, 36 of the 37 had “separated from state service,” according to the state Department of Mental Health and Addiction Services, which oversees Whiting.

During the press conference, Ponvert said evidence shows that Shehadi was abused for more than a decade. The suit describes letters Shehadi wrote to two Whiting doctors in 2006 and 2008 saying he was being abused.

The state lawsuit, which was served on the state attorney general’s office, names the state of Connecticut, the state Department of Mental Health and Addiction Services, as well as DMHAS Commissioner Miriam Delphin-Rittmon, and 11 Whiting administrators and supervisory level employees. The suit seeks monetary damages and injunctive relief.

On Thursday, a spokeswoman for the attorney general’s office said they were reviewing the filing but declined to comment further.

The second lawsuit, filed in U.S. District Court, sues the forensic nurses and treatment specialists accused of abuse or of not reporting it. That suit alleges violations of the U.S. Constitution and the Patients’ Bill of Rights, and also asserts claims for assault and battery and intentional infliction of emotional distress.

Cusson and Camby were named as defendants in the federal lawsuit, as were Michael Presnick, a forensic nurse; and Carl Benjamin, Willie Bethea, Clayton Davis, Greg Giantonio, Bruce Holt, Robert Larned, Robert Martineau, Patrick O’Brien and Seth Quider, all forensic treatment specialists. All were arrested except Martineau and O’Brien, according to state records. DHMAS said none of the defendants worked for the agency any more.

According to the federal suit, following the initial report of abuse and subsequent investigation, DMHAS determined that all of the defendants except O’Brien had violated “DMHAS General Work Rule 19,” which prohibits “physical violence, verbal abuse, inappropriate and indecent conduct and behavior that endangers the safety and welfare or persons or property.”

DMHAS found that O’Brien had violated “General Rule 21,” which says that employees must immediately report alleged violations of work rules, policies, procedures or regulations to a supervisor, according to the suit.

Shehadi was born on Aug. 22, 1958, in Bronxville, N.Y. Since early childhood, he has had a history of treatment and hospitalizations for psychiatric illnesses and behavioral problems, according to the lawsuit against the state.

In 1995, he was acquitted of criminal charges because of his severe mental illness after he killed his father. He has been involuntarily committed to state custody ever since, and is now at Connecticut Valley Hospital.

His symptoms continue to include psychosis, paranoid and delusional thinking, self-injurious behaviors, chronic anxiety, profound insomnia, and various repetitive behaviors, including pacing and tapping. His speech is difficult to understand because of dysarthria, a speech disorder caused by muscle weakness, according to the lawsuit.

He suffers from several medical conditions, including recurrent aspiration pneumonia, reflux disorder, anemia, chronic pancreatitis and seizures.

He needs assistance from caregivers with many activities, including eating, drinking showering, shaving, dressing and cleaning his laundry. For years, his treatment plan has required 24/7 supervision by two staff members to ensure his safety and wellbeing, the suit said.

Full Article & Source:
Lawsuits accuse staff at Whiting of psychological, physical torture

Abilene caretaker accused of stealing $6,000 from elderly patient

Kara Brooke Beaver
ABILENE, Texas — An Abilene woman was arrested Tuesday morning after police say she stole thousands of dollars from an elderly patient.

According to the arrest report, police executed a search warrant at a home in the 300 block of Glenhaven Drive.

Police say they discovered Kara Brooke Beaver, 30, stole more than $6,000 on Feb. 23 from an 84-year-old that hired her as a caretaker.

Beaver is charged with exploitation of the elderly, which is a third degree felony. Her bond was set at $10,000.

No other details about the case are available.

According to jail records, Beaver has two prior arrests for thefts. But both of those were misdemeanors.

Full Article & Source:
Abilene caretaker accused of stealing $6,000 from elderly patient

Senior Scams: A 'New Friend' May Signal a Big Problem

Your elderly mother has a new best friend who accompanies her everywhere. She has always been frugal but now lavishes pricey gifts on her new pal. And although you used to speak with her every few days, she never seems to answer your calls anymore. 

Are these simply the signs of a senior living it up in her later years? Or is something sinister happening? Those are the difficult questions that can arise in cases of “undue influence,” in which a perpetrator takes advantage of his position of trust or power to gain control over the victim's decision-making, usually to line his own pockets. The perpetrator could be a new “best friend,” financial adviser, adult child or someone else close to the victim. And while anyone can fall victim to undue influence, those most vulnerable include older, more isolated individuals.

Undue influence plays a role in many–if not most–cases of financial abuse, says Dr. Bennett Blum, a physician specializing in forensic and geriatric psychiatry who serves as an expert witness in elder abuse cases. Seniors lose about $6.7 billion a year to family members, friends, caregivers, financial advisers or other trusted associates who exploit their roles for financial gain, according to a report by San Francisco financial-services firm True Link Financial.

The problem is growing, elder abuse experts say, as the population ages. And it may be far greater than any statistics can demonstrate. “At best, 80% of cases are never reported to anyone–and at worst, 95%,” Blum says. In many cases, victims are only manipulated, rather than threatened or coerced, so they don't even realize they're victims. And if they do realize what's happening, they may be hesitant to speak up for fear of retribution from the perpetrator–or fear that government authorities or family members will think they can no longer take care of themselves, Blum says.

As concern over the issue grows, new rules may help prevent some of the financial fallout. Financial Industry Regulatory Authority rules that took effect this year, for example, require brokers to ask clients for the name of a trusted person they can contact and allow them to place a temporary hold on disbursements from an older client's account if they suspect the client is a victim of financial exploitation.

Such rules, of course, can't prevent every case of undue influence. John Waszolek was a broker at UBS when one of his elderly clients, a widow, was diagnosed with Alzheimer's disease in 2008. Shortly thereafter, Waszolek took the client to meet an estate-planning lawyer who prepared a health care power of attorney and living will naming Waszolek as the widow's agent, according to a 2015 FINRA complaint against Waszolek. In 2009, the complaint alleges, Waszolek referred the client to a second attorney, who prepared an amendment to her trust, naming Waszolek as beneficiary of about $1.3 million in trust assets. When Waszolek later went to work for Morgan Stanley, the widow's trust account moved with him–and after her death in 2010, Waszolek attempted to collect the cash, which by that time had grown to about $1.8 million, according to the complaint.

He didn't succeed. The trustee refused to distribute the cash without Morgan Stanley's approval–and Morgan Stanley did not approve, according to FINRA. In 2015, without admitting or denying the allegations, Waszolek consented to a settlement that barred him from the industry. He did not respond to our request for comment.

Safeguards to Help Thwart Senior Scammers

How can seniors and their loved ones prevent such a scenario? One defense is to stay connected, says Lisa Nerenberg, executive director of the California Elder Justice Coalition. If a loved one suddenly withdraws from social circles, or someone seems to be interfering–such as a caregiver telling visitors that the senior doesn't want to see them–that's a red flag, she says.

Watch for other changes in behavior, such as when someone who has always been cautious with money suddenly starts doling out large gifts. Be particularly vigilant if a senior has just lost a spouse. “There are scammers who follow death announcements” and try to befriend survivors, Nerenberg says.

Another preventive step: Create some checks and balances if you're asking other people to help manage your money as you age. When designating a financial power of attorney, for example, you can name two people to serve together–perhaps one family member and one trusted adviser, says Hyman Darling, an elder law attorney in Springfield, Mass. If someone is helping you with day-to-day money management, regularly review your bank and brokerage statements for any unusual transactions. Online services may help. EverSafe , for example, helps monitor financial accounts for changes in spending patterns or suspicious activity, and you can name a trusted friend or adviser to help you keep tabs on your accounts.

If you suspect a senior is falling victim to undue influence, try enlisting the help of a friend or relative whom the senior really trusts, Nerenberg says. Even when questioned by caring friends, the senior may deny anything is wrong and defend the influencer. If you're concerned the senior is being abused, report the issue to Adult Protective Services.

The growing prevalence of undue influence raises another issue for seniors who are not victims of abuse: False accusations of undue influence can derail your estate plan. Let's say your adult daughter quits her job to become your primary caregiver. You had originally intended to divide your estate equally between your daughter and son, but given your daughter's sacrifice, you later change your will to give her a bigger piece of the pie. Nobody has done anything wrong–but after you're gone, your son contests your will, claiming your daughter had undue influence over you.

Such issues can arise if seniors don't communicate their intentions when changing their estate plans, says Thomas West, partner at Signature Estate and Investment Advisors, in Tysons Corner, Va. “Make sure all the affected parties know what the decision is and how it was arrived at,” West says. In addition to discussing your decision with your heirs, you might include a brief explanation in your will and a longer explanation in a letter to your executor. In any case, West says, “try not to make it a secret.”

Full Article & Source:
Senior Scams: A 'New Friend' May Signal a Big Problem

Saturday, March 17, 2018

Developments in Guardianship Law and Increased Difficulty Establishing Guardianships

The last few years saw substantial changes and updates in the probate and estates realm, not the least of which was replacement of the prior Texas Probate Code with the Texas Estates Code. In guardianships, the most important changes directed an exploration of “less restrictive alternatives” to guardianship, making proving the necessity for a guardianship more difficult. Additionally, another hour was added to the required learning for an attorney to qualify to serve in an ad litem capacity in the probate courts, as well as a new requirement that attorneys representing applicants for guardianship also obtain the four-hour training previously only required of those wishing to serve in an ad litem capacity. These requirements have resulted in the courts stressing the importance of consideration of less restrictive alternatives to guardianship of the person and/or estate.

Guardianships are court-supervised, and by necessity strip the incapacitated person of some or many rights possessed by most adults, such as the right to vote and decision whether to marry. Guardianships of minors and adults arise out of legal incapacity (such as birth defects, accidents resulting in damaged mental function, and age-related mental decline). Out of this rather significant legal power and duty to made decisions for another combined with stripping away of rights of another arose the focus on less restrictive alternatives to guardianship, and the resultant reluctance of the courts to establish guardianships without sufficient evidence that less restrictive alternatives are inadequate. (See Texas Estates Code §1001.001.)

The definition of “Alternatives to Guardianship” (Texas Estates Code §1002.0015) offers a non-exclusive list of less restrictive alternatives, including medical and durable powers of attorney, representative payees, convenience accounts, various trusts, and person-centered decision-making. Other options are included in the list of “Supports and Services,” a comprehensive but not exhaustive, suggestion of supports and services available in the appendix of the often-cited Tarrant County Ad Litem Manual, about which all attorneys handling guardianships in the state of Texas should know. (Some examples include Adult Protective Services, Area Agencies on Aging, food banks, DADS (Texas Department of Aging and Disability Services), MHMR centers, support groups for particular diseases and conditions, religiously affiliated charities, Meals on Wheels, and behavioral support services.)

The Texas Estates Code Ch. 1357, Texas Health and Safety Code and Texas Family Code all contain provisions regarding surrogate decision-making (SDM) for both minors and adults, and the Estates Code addresses supported decision-making agreements, which are somewhat similar to powers of attorney, but consist of an agreement between 1) an adult with disabilities regarding activities of daily living but is not legally incapacitated and 2) a “supporter” who a) is willing to assist in understanding the options, responsibilities and consequences of life decisions without actually making those decisions for the disabled adult and without impeding the disabled adult’s self-determination; b) obtains relevant information necessary for the disabled adult; c) understands the information gathered; and d) communicates the disabled adult’s decisions to appropriate persons. A permissive form is supplied in the statute.

Managing conservatorships (covered in the Family Code) are common in divorce proceedings, and are good substitutes for a guardianship of the person of a minor, but only when there is no issue of assets or an estate of the minor, as the Family Code provides no monitoring mechanism for property management.

Conversely, with estates and assets of an incapacitated person, living trusts (revocable inter vivos trusts), guardianship management trusts and special needs trusts are excellent tools that allow a trustee more freedom to act than a guardian of the estate would enjoy, provided the trust was drafted by a knowledgeable attorney and is coordinated with other appropriate estate planning tools.

Powers of attorney are popular alternatives to guardianship, but only if the person had legal capacity to grant the powers when executed; beware however, banks, bankers, title companies, stockbrokers and others are not always willing or prepared to accept powers ofaAttorney, despite the legality of the documents. Another drawback is the lack of an effective monitoring or checking of the agent’s activities, despite duties to inform and account to the principal of actions taken and to maintain complete records of actions taken. (See Texas Estates Code §751.101).

With longer life spans and age-related deterioration of mental faculties on the rise, another possibility is community administration, which allows for one spouse to act in the capacity of “community administrator” to manage, control and dispose of the entire community estate without the necessity of a guardianship upon findings by the Probate Court that the other spouse is incapacitated, it is in the best interest of the incapacitated spouse to have the other spouse manage the community property, and the administrator spouse would not otherwise be disqualified to be appointed (same qualifications of a guardian of the estate). Texas Estates Code Section 1353.002 provides that the administrator may be required to return an inventory and accountings, and a guardian of the estate may retain management rights over some specified varieties of real and personal property. The community administrator is considered in the context of a guardianship application and is not itself a separate freestanding application.

There are many statutory and nonstatutory alternatives that qualify as less restrictive than guardianship and it is incumbent upon attorneys in the probate arena to be aware of and conversant with the new requirements and the fact that the courts are now requiring that less restrictive alternatives be considered and ruled out as not adequate prior to establishing a guardianship.

Elizabeth P. Ardanowski practices state and federal litigation, as well as probate and estate planning and litigation, and has been handling guardianships (both simple and contested) on both sides of the docket for well over a decade. She has a Juris Doctor from Baylor University School of Law and a Bachelor of Journalism in Public Relations from the University of Texas at Austin, and she is an adjunct professor of media law and ethics at Texas Wesleyan University.

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Developments in Guardianship Law and Increased Difficulty Establishing Guardianships

Abusive probate guardianship

The award-winning 2017 short documentary “Edith+Eddie” by Kartemquin Films and directed by Laura Checkoway follows the story of America’s oldest interracial couple whose love story is interrupted by a family feud and an administrative probate hearing. The movie highlights the loss of all human and constitutional rights as well as loss of all property rights once Edith is placed into an involuntary guardianship by a probate judge.

What can happen if you fail to settle a family dispute in a guardianship hearing in St. Louis and St. Louis County?

Once you take the matter to a probate judge, you risk losing your loved one to the system. The probate judge will appoint a third-party guardian, regardless of whether advance directives (durable power of attorneys, health care proxies, wills, trusts, etc.) are in place or not. The elderly ward is punished because his/her family “can’t get along.” Your loved one will lose all constitutional and fundamental rights (right to vote and the right to marry) as well as control of all property, life savings, personal treasures.

And that is not the worst of it: You will lose all input into your loved one’s care and the right to know of his/her medical condition. You will become powerless to help your loved one if the guardian decides to send him/her to a nursing home. Remember who is going to profit from the guardianship/conservatorship of your loved one: the guardian, the other fiduciaries, and your attorney.

The issue is not whether the present system is legal. The issue is whether involuntary guardianships are consistent with basic principles of law, democracy, civil rights, human rights, and the constitution. The present system of involuntary guardianship violates all these basic principles. It is a danger to everyone whether or not they realize it.

M. Anthony
St. Louis

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Abusive probate guardianship

The Mentally Impaired Client: Who Decides Trial Strategy?

On Jan. 17, 2018, the U.S. Supreme Court heard oral argument on the capital murder conviction of Robert McCoy, who was sentenced to death by a Louisiana court after his own lawyer told the jury he was guilty of a triple homicide. According to The New York Times, defense counsel Larry English made a tactical decision, over his client’s objection, to tell the jury that his client had committed the homicides in order to maximize his client’s chances at avoiding the death penalty. Adam Liptak, “Supreme Court Skeptical of Lawyer’s Conduct in Death Penalty Case,” N.Y. Times (Jan. 17, 2018). English reasoned that, given the overwhelming mountain of evidence against McCoy, his best bet was to concede guilt and focus on mitigation at the sentencing phase of trial.

The lawyer’s ploy didn’t work, as the jury convicted McCoy and imposed the death sentence. In addition, McCoy explicitly objected to the strategy and insisted on maintaining his innocence, arguing that he had an alibi. The question in the Supreme Court is whether the lawyer, in disregarding his client’s explicit instructions to protest his innocence, arrogated to himself a fundamental decision that belonged to the client rather than the lawyer, and thereby violated the client’s Sixth Amendment right to assistance of counsel. A decision is expected before the Court’s June recess.

This was not the first time the High Court has grappled with this issue. In a 2004 case, the Supreme Court considered whether counsel must obtain explicit consent from the client before conceding guilt in a capital case. Florida v. Nixon, 543 U.S. 175 (2004). Rejecting the need for explicit consent, the court held in Florida v. Nixon that, “[w]hen counsel informs the defendant of the strategy counsel believes to be in the defendant’s best interest and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket rule demanding the defendant’s explicit consent.” Nixon, 543 U.S. at 192. Rather, the court held that conceding guilt to avoid the imposition of the death penalty may be a reasonable trial strategy, and is permissible when the defendant neither consents nor objects to the strategy. Of course, there is a difference between a client who stands mute and one who vociferously objects, as was the case in McCoy.

Longtime followers of criminal defense and legal ethics will recall that a similar controversy arose during the prosecution of convicted Unabomber Theodore Kaczynski in 1998, who unsuccessfully tried to dismiss his court-appointed lawyers because they wanted to plead insanity in order to avoid the death penalty. Kaczynski’s lawyers used a ruse to trick him into agreeing to a court-appointed psychiatric examination so that they could portray him as mentally ill, a defense to which their client objected, as he felt he wanted his political message, however twisted, to reach the public. Lerman and Schrag, Ethical Problems in the Practice of Law (3d Ed. 2012) at 351-52; U.S. v. Kaczynski, 239 F.3d 1108 (9th Cir. 2001). Following a 1998 plea bargain, Kaczynski was sentenced to life in prison. The lawyers’ ruse prompted a debate about whether defense lawyers may ethically deceive their client into agreeing to a forensic examination that is contrary to the client’s expressed wishes.

While Kaczynski and McCoy represent examples of lawyers’ conflicts with high-profile clients, lawyers for less-famous clients may also face gut-wrenching decisions in interacting with their clients. When do lawyers cross the line between acting as trusted advisors on the one hand and wresting control of the case from the client on the other?

The allocation of authority between lawyer and client is set forth in Rule 1.2 of the American Bar Association Model Rules of Professional Conduct, which provides that the most basic, fundamental decisions about a case must be made by the client:

Subject to paragraph (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

ABA Model Rule 1.2.

The New York version of RPC 1.2 is virtually identical.

But what if the client is mentally impaired? This issue is addressed in ABA Model Rule 1.14, titled, “Client With Diminished Capacity,” which provides that a lawyer should attempt to maintain an ordinary relationship with the client if possible, and to seek appointment of a guardian if unable to do so. According to RPC 1.14:

When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

RPC 1.14(a).

However, when the lawyer believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken, or cannot act adequately in the client’s own interest, the rule provides that “the lawyer may take reasonably necessary action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases seeking the appointment of a guardian ad litem, conservator or guardian.” RPC 1.14(b). The commentary to RPC 1.14 provides that while a “severely incapacitated person” may not be able to make decisions involving her legal affairs, “a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s well-being.” RPC 1.14, Cmt [1].

For example, children may have the ability to make informed decisions about their cases, and it is not uncommon for lawyers in custody disputes or other family law cases to take directions from underage or incapacitated clients. Even individuals who have been adjudicated incapacitated and have guardians appointed are permitted by statute to bring applications to discharge or modify their guardianships. See N.Y. Mental Hygiene Law 81.36(b). In criminal cases, it is not uncommon for a judge to make a competency determination at the onset of the case in order to ascertain whether or not the defendant is sufficiently able to understand the nature of the proceedings and to participate meaningfully in his defense.

Lawyers for persons who suffer from mental illnesses do not assume that their clients cannot make reasoned decisions. To the contrary, lawyers for the mentally ill generally accede to their clients’ decision-making prerogative and rarely take protective action on a client’s behalf against the client’s expressed wishes. The courts have recognized this principle. As the Second Circuit has noted, “Diminished capacity alone cannot serve to undermine” an individual’s due process protections. Project Release v. Prevost, 722 F.2d 960, 971 (2d Cir. 1983). Likewise, even psychiatrists cannot assume that their patients lack decisional capacity. The fact that a patient receiving mental health treatment may disagree with his psychiatrist’s judgment concerning the treatment “does not make the patient’s decision incompetent.” Rivers v. Katz, 67 N.Y. 2d 485, 495 (1986).

On Jan. 23, 2018, the Second Circuit addressed the allocation of decision-making prerogative between client and lawyer in United States v. Tigano, 2018 U.S. App. LEXIS 1544 (2d Cir., Jan. 23, 2018), in which the court dismissed the defendant’s indictment on drug charges due to excessive trial delays in violation of his Sixth Amendment right to a speedy trial. The Second Circuit attributed the delays, in part, to “needlessly repetitive and dilatory competency examinations,” all of which found Tigano competent, and which were ordered because of “Tigano’s assertion of his speedy trial right and his refusal to accept a plea.” 2018 U.S. App. LEXIS 1544 at *23, 25. The court noted that this case was “unusual” because, while “Tigano himself made very clear that he desired a speedy trial,” his attorney’s choices did not always reflect Tigano’s desire. 2018 U.S. App. LEXIS 1544 at *37. As the Second Circuit concluded, “Quite simply, the right to a speedy trial belongs to the defendant, not to defendant’s counsel.” 2018 U.S. App. LEXIS 1544 at *37.

So getting back to McCoy, did defense counsel have the right to overrule his client’s decision to protest his innocence and force the district attorney to prove every element of the case beyond a reasonable doubt? While the evidence against McCoy was overwhelming, it does not appear that the trial judge ruled him unfit either for trial or to participate in his own defense. As a matter of professional responsibility, it was the client’s decision, not the lawyer’s, whether or not to admit guilt to the jury.


The Rules of Professional Conduct allocate primary decision-making about fundamental strategic issues to the client. While superseding the client’s decision-making with that of the lawyer is permissible for routine tactical matters, that is not the case for fundamental decisions such as whether or not to plead guilty, whether to settle a civil case, whether to go to trial, whether to assert an insanity defense, or whether to concede guilt at trial in the hope of averting greater punishment.

Diane Goldstein Temkin is a principal attorney at Mental Hygiene Legal Service, First Department. Barry R. Temkin is a partner at Mound Cotton Wollan & Greengrass and a member of the New York County Lawyers Association Professional Ethics Committee. The authors thank Alan Vinegrad for reviewing and commenting on an earlier draft of the article.

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The Mentally Impaired Client: Who Decides Trial Strategy?