Wednesday, July 29, 2015

Families Go to Battle in Probate Court, Only to Leave Without Anything

By Steve Jansen

Cartoon by Fred Harper

In October 2007, Willie Jo Mills of Houston suffered a stroke that paralyzed the right side of her body. A widow with two daughters and a son, the 80-year-old woman was prescribed a variety of pain medications, but doctors couldn’t find the right cocktail.

Six months later, Mills’s son Larry filed an application with the Harris County Probate Court to become his mom’s legal guardian. Mills’s youngest daughter, Sherry Johnston, who wasn’t getting along with Larry, contested her brother’s guardianship request. With the case at a standstill, Judge Christine Riddle Butts, one of the newest of Harris County’s four elected probate judges, selected the third-party guardians David R. Dexel, a Houston-based attorney, and Ginger Lott, a certified guardian in Texas, as Mills’s legal caretakers.

Johnston says that’s when the family’s five-year horror began.

According to documents filed with the Harris County Probate Court, Johnston alleges her mother was miserable and overmedicated and shriveled to 89 pounds while under the care of the court-appointed guardians. “She looked like a concentration camp victim,” says Johnston, who adds that she was barred from visiting her mother at Silverado Kingwood Memory Care Community after she complained about the lack of attention paid to her mom.

Following her complaint to the court, Johnston was allowed to visit with her mother. In the next six months, she put 30 pounds on her mother, but Willie Jo eventually moved to hospice and died on September 27, 2014, at the age of 86. Johnston thinks the pitiful treatment by the third-party guardians is part of the reason her mother stopped talking the last four months of her life.

“[Probate Court] isn’t about protection or appointing someone to act in the best interest of a person. It’s about ownership of a human being and all their assets. It’s starting to look like they’re running a business rather than taking care of elderly people,” says Debby Valdez, president of the San Antonio-based Guardianship Reform Advocates for the Disabled and Elderly.

By law, a person in the clutches of a guardianship loses his basic rights such as the ability to drive, spend money, marry, choose a place to live and make medical decisions for himself. Instead, the bill of rights is transferred to the appointed guardian.

A professional caretaker through a county guardianship program, or a certified — or even uncertified — guardian such as a private lawyer can carry out a court-appointed guardianship, which dissolves a previous power of attorney that a relative may have obtained. (The Texas Judicial Branch Certification Commission requires the completion of a four-hour course to become a certified guardian. Until recently, it had been only three hours.)

Before he became the legal guardian for his mother, Olga, Gregory DeFrancesco, a retired Houston Police Department sergeant, had been fighting a grueling guardianship battle in Harris County probate court.

In July 2012, Judge Loyd Wright of Harris County Probate Court No. 1 appointed Dexel to take care of the now 88-year-old woman’s affairs. The court became involved because Gregory and his sister Donna couldn’t agree on specifics regarding their mother’s care (or anything else, for that matter).

According to a complaint filed by Donna with the State Bar of Texas’s Chief Disciplinary Council, after Dexel sold Olga’s house, he hawked her belongings in a poorly run sale. Sentimental possessions, like their grandmother’s rocking chair and a piece of jewelry that contained their father’s ashes, were sold before Gregory and Donna had a chance to run over and rescue the items.

The barely legible, hand-scrawled itemized receipt looks as if a six-year-old kid had run the sale. Purchased items include “crystol plate” for $7, “3 oval” for $5 and “sieve,” “foil,” “napkin hold” and “SS gravy body” for $1 apiece. One of the few items that didn’t sell was an X-ray of Olga’s shoulder, which Gregory found with a $3 price sticker slapped on it, according to Donna’s complaint with the State Bar of Texas.

When Gregory confronted Dexel, who didn’t respond to a Houston Press interview request, about the X-ray that also listed Olga’s date of birth and Social Security number, “He told me that they tried to sell it so that parents could teach their children how to play doctor.”

A month after Gregory usurped Dexel as his mother’s guardian, Donna’s State Bar of Texas complaint alleges that Dexel withdrew $16,340.18 from Olga’s Wells Fargo account (because he was still listed as a co-signer) and made out a cashier’s check payable to himself, according to a bank statement and check image examined by the Press. The withdrawal took Olga’s account down to a big fat $0.

“The whole system is rigged. It’s one big scam,” Gregory says about Harris County probate court, which critics allege is a corrupt, freewheeling operation that allows judges’ favorite appointees, who are also close friends and campaign donors, to bleed the estates of the helpless and vulnerable. Naysayers of court-appointed guardians believe that attorneys prey on family drama to charge astronomical fees and that judges aren’t doing enough to stop them.

Even though probate law is a complicated field that requires specialized attorneys, only 20 of the judges in Texas’s 254 counties have legal-studies degrees and professional law experience, according to Judge Mike Wood, who’s in charge of Harris County Probate Court No. 2. “The rest are farmers, car dealers and insurance salesmen, so probate law is written to be run by non-lawyers,” says Wood. Travis County Probate Court Judge Guy Herman, one of Texas’s presiding state statutory probate judges, adds, “Non-lawyer judges sometimes don’t seem to know or understand their duties and obligations” because of a lack of resources in rural areas.

Unlike probate courts out in the sticks, Harris County’s four probate judges and Herman think that statutory probate courts in Texas’s resource-rich metropolitan areas — which include Bexar, Collin, Dallas, Denton, El Paso, Galveston, Harris, Hidalgo, Tarrant and Travis counties — are well-oiled machines. Herman, who has been a point person for probate legislation since 1985, says Texas’s revamping of probate statutes in 1993 brought kudos from other states.

“The system is geared to help people,” says Wright. “Sometimes things aren’t fixable when there’s dysfunction and family animosity.”

Herman couldn’t agree more. “The driver of the expense is a family feud and the children who are arguing about who should be the guardian. There’s not a single judge that likes these fights. It’s wasting the family’s money,” says Herman, who adds, “I don’t think judges are sitting around trying to be corrupt.”

However, state lawmakers thought something was awry during the 2015 Texas legislative session because Governor Greg Abbott signed yet another try at legislation designed to help families in guardianship proceedings.

“We need some sort of oversight of these court appointees, because right now, I don’t know of any,” says state Sen. Judith Zaffirini, a Democrat from Laredo who sponsored or co-sponsored several guardianship bills.

Harris County’s four probate judges and Travis County’s Herman aren’t thrilled with many of the new laws, which force more accountability on the judges and go into effect September 1.

Texas Supreme Court Chief Justice Nathan Hecht says there’s one bulletproof way to avoid potential probate court messes. During a hearing for the eventually inked House Bill 39, which will provide families with less-restrictive alternatives to guardianships, Zaffirini asked Hecht for probate court and guardianship avoidance techniques.

His response: Get along with your family members.

Good luck with that.  (Continue Reading)

Full Article & Source:
Families Go to Battle in Probate Court, Only to Leave Without Anything

Florida clerks’ budget reductions could affect guardianship oversight

                                                                        Photo via Flickr

Like pretty much every hotel conference, the most interesting part of the Florida State Guardianship Association conference Friday was probably the mixed drinks at the pool bar. Still, we found some interesting tidbits at a presentation by four Florida county court clerks.

For those who don’t know, a guardian is a decision-maker, either a family member or a professional, appointed by the court who can make personal and/or financial choices for a minor or adult with mental or physical disabilities (also known as a ward). The Miami New Times reported last year that although the state's guardianship program was initiated to help the elderly and people who are incapacitated, the system actually leaves these people open to exploitation.

“Few of the roughly 50,000 Floridians inside the state's guardianship system ever escape,” New Times says. “And for some, losing their rights is just the beginning. In cases of abuse, they are isolated from families, overmedicated and physically neglected while guardians bleed their accounts.”

County clerk offices around the state are in charge of auditing a ward’s financial records, which are filed by guardians. During the audit, clerk employees check for irregular financial activity, which could indicate abuse.

Statewide, clerks’ offices are facing a five percent reduction in their overall budgets, creating a $22.4 million shortfall this year with a greater shortfall predicted next year, said Polk County Clerk of Courts Stacy Butterfield. The clerks office generated less revenue from court fees and fines than expected, and had to slash their budgets because state lawmakers would not give them additional aid.

Many offices have already experienced layoffs, furloughs and a reduction in office hours.

"Next year, we're potentially looking at a 7 to 8 percent reduction," Butterfield told the crowd Friday. “If we don’t have relief from the Legislature, we will experience very drastic cuts."

It was only last year that legislators passed a bill allowing county clerks to aggressively audit guardianship cases, but the mandate was ineffective because the state didn't put money into it, New Times reports.

Despite bills introduced by the Florida Legislature to reform the guardianship program, it looks like clerks will have even less money to go around, there's little chance clerks will be able to devote resources to the cases.  (Continue Reading)

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Florida clerks’ budget reductions could affect guardianship oversight

Police raid unlicensed assisted living facility in St. Pete

Detectives from the St. Petersburg Police have raided a home operating as an unlicensed assisted living facility.

The home is located at 2895 38 Ave. North.

According to detectives, they began investigating the operation after credit cards and identities of residents were used to make fraudulent transactions.

The Florida Agency for Healthcare Administration and Department of Health are assisting police with the investigation.

According to I-Team Reporter Adam Walser, six patients were living in the facility.  

According to a police statement,  the investigation began in early June when the daughter of a woman who had lived at the ALF noticed charges made on her mother's credit card account which were apparently fraudulent.  Her mother had passed away on May 31st.

The owner, Maria Matos Infante, has been arrested and is charged with 10 counts of credit card fraud.

Watch Action News starting at 4 p.m. for the latest.  (Continue Reading)

Full Article & Source:
Police raid unlicensed assisted living facility in St. Pete

Tuesday, July 28, 2015

Conservatorship Conundrum: Court Process That Can 'Unperson' You Within Minutes


You may have heard the term "conservatorship" in the context of entertainment news. Older celebrities like the late Mickey Rooney, the star of such film classics as The Adventures of Huckleberry Finn and The Black Stallion, and the late Peter Falk, who played the shrewd police lieutenant on Columbo, were placed under conservatorships.

But conservatorships aren't just reserved for older adults. American pop princess Britney Spears and former child star Amanda Bynes were conserved for running amok and posing a danger to themselves.

Let's look behind the headlines and learn what a conservatorship, also referred to as a guardianship, is.

An Age-Old Solution to an Age-Old Situation

The guardianship concept dates back to Roman times. Marcus Tullius Cicero (106-43 B.C.), a Roman philosopher, lawyer, and statesman, codified the guardianship concept into Roman law, with an eye toward managing an incompetent's property.

In England during the early 1300s, guardianships appeared in common law with the passage of De Praerogativa Regis, a statute that allowed kings to take ownership of the property of mentally disturbed individuals. By the early 1600s, an heir's guardian obligations were codified and crossed the Big Pond to the United States.

In the aftermath of the American Revolution, the states employed parens patriae (Latin for "parent of the nation"). The law allowed the state to exercise jurisdiction over persons with disabilities or incapacities by appointing officials, usually guardians, to care for these persons if they were unable to care for themselves.

Protectors of the "Unbefriended" 

So what exactly is a guardianship? According to a report entitled "Public Guardianship After 25 Years: In the Best Interest of Incapacitated People?," a guardianship is described as:
"... a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make personal and/or professional decisions for another person (the ward or incapacitated person). [...] Guardianship can 'unperson' individuals and make them 'legally dead.' Guardianship can be a double-edged sword, 'half Santa and half ogre.'"
The long and short of it is, if no family member or friend is willing to step up to serve as legal guardian to a ward or an incapacitated person, or resources aren't available to retain a private guardian (such as a professional fiduciary), then a public official or publicly-funded organization will be appointed as legal guardian, the guardian of last resort.

The State Holds All the Cards

Because of a guardianship's far-reaching power to take over people's lives, you'd probably think that guardianships would be legislated, regulated, and controlled at the federal level. Not so -- adult guardianships are a state-based legal function.

The foundation of the public guardianship system is established by general guardianship code, while legal proceedings can vary by state.

Guardianships by the Numbers

You might be wondering how many people's lives are managed under a guardianship. The answer is that no one knows for sure. By one estimate, about 1.5 million Americans are under a guardianship at any given time, which is probably an underestimate.

One Size Doesn't Fit All Situations

Different types of conservatorships exist. Let's use California as an example. In "The Golden State," conservatorships come in four forms: general conservatorships, limited conservatorships, temporary conservatorships, and Lanterman-Petris-Short conservatorships (LPSs). The first three forms are considered probate conservatorships based on California Probate Code, while the fourth form is designed to care for individuals suffering with serious mental illness and who need special care. Let's look at the first three forms.

General conservatorships are ordinarily used for adults who are unable to take care of themselves or their finances. Here, the judge would choose a person or an organization, the "conservator," to make some or all life decisions for the protected person, the "conservatee." Things like medical and housing decisions would be made by the "conservator of the person." The conservator of the person might also make property decisions, or someone else might be appointed to do that, the "conservator of the estate."

Adults with developmental disabilities who are unable to fully care for themselves or their finances may be placed under a limited conservatorship. These conservatees don't usually need a high level of care or assistance, as compared to conservatees in general conservatorships. They often suffer from long-term developmental disabilities, such as mental retardation, cerebral palsy, autism, and other impairments, that started before they turned 18.

When a conservatorship is required urgently, the judge may grant a temporary conservatorship by appointing a temporary conservator of person and/or property for a stated period of time. A temporary conservatorship is a "Band-Aid" over a potentially festering situation and is usually granted if the matter is urgent.

A Double-Edged Sword 

As a legal concept, a conservatorship protects and manages the personal care and/or financial affairs of a vulnerable or dependent adult. In its practical application, however, a conservatorship is the most restrictive alternative and most intrusive option to addressing a situation.

In instances where elders are being abused, neglected, or exploited, a conservatorship can create new problems and even perpetuate the abuse when a court-appointed protector seizes "supreme control" over a conserved elder.

The cold hard fact is that a conservatorship can strip a person of his or her basic freedoms--sometimes in just a matter of minutes.

It Could Happen to You

The scary thing is any of us could become a ward of the state. Growing old and forgetful, getting ill, becoming unable to take care of ourselves or our affairs, getting into a crippling accident, or depending on others for our care could happen to any of us. Losing capacity doesn't distinguish between the genius or the average, the rich or the poor, or the healthy or the unhealthy.

In the next blog post in this series, we'll learn "who" does "what" in a conservatorship and describe how a conservatorship is formed.

Full Article & Source:
Conservatorship Conundrum: Court Process That Can 'Unperson' You Within Minutes

EDITORIAL: Clark County adult guardianship program must better protect wards

If there were any doubts that the Clark County adult guardianship system needs a major overhaul, they were cast aside last week in the first meeting of a 26-member panel commissioned by the Nevada Supreme Court.

As reported by the Review-Journal'€™s Colton Lochhead, the panel is aiming to fix what three of the state'€™s top justices view as a troubled process that has seen some guardians drain hundreds of thousands of dollars from the accounts of elderly and mentally incompetent Nevadans. Yet during the meeting, Jared Shafer, who worked for more than 20 years as the Clark County public administrator and public guardian before starting his private professional guardianship business in 2003, stated that the system "isn'€™t that bad."

Certainly not for Mr. Shafer, whom Mr. Lochhead wrote about earlier this year in an extensive series on the seriously flawed guardianship system. Mr. Shafer took over as the court-approved guardian for World War II veteran Guadalupe Olvera in 2009. Over the next 3½ years, Mr. Olvera'€™s estate was drained of at least $420,000 -- including $240,000 in legal costs as his daughter, Rebecca Schultz, who lives in Aptos, Calif., fought to gain guardianship.

Mr. Lochhead noted that after Mr. Shafer'€™s assessment, one woman at the public meeting shouted, "€œYou used the money to pay lawyers!"€ Many others who attended the meeting, held in a Regional Justice Center courtroom, stood in front of the panel and explained that their family members who had been made wards of the county had been exploited by their guardians.

Indeed, there have been miserable oversight failures of the system that'€™s supposed to protect the estates of thousands of elderly and mentally incapacitated residents. The District Court operation has allowed people to be stripped of hundreds of thousands of dollars while not enforcing guardian reporting requirements and ignoring wards and their families. There is no accountability in the current system, even though the Clark County Commission had at least some knowledge of how bad things were. After Mr. Lochhead'€™s initial reports in April, county commissioners expressed outrage over abuses carried out by court-appointed guardians. But Commissioner Tom Collins also admitted he knew the system was troubled after personally intervening on behalf of a friend whose grandmother couldn'€™t be freed from a guardianship.

That squares with the difficulties of Ms. Schultz, who felt the only solution was to help her father gather a few belongings and flee the state. That led to accusations of kidnapping from Mr. Shafer (no charges were filed) and a bench warrant from Guardianship Commissioner Jon Norheim for Ms. Schultz's arrest, after she and her father ignored Mr. Norheim's order to return for a court appearance.

With 8,500 adult guardianship cases in Clark County each year, this long-neglected problem requires much more action, and soon. Removing Mr. Norheim from adult guardianship hearings in May was a good first step, and creating the panel —€” chaired by Nevada Supreme Court Chief Justice James Hardesty —€” is also laudable. But there must be more oversight, guardians must be more accountable and wards must receive better protection against financial exploitation.

Full Article & Source:
EDITORIAL: Clark County adult guardianship program must better protect wards

Why Bankers, Financial Analysts And Doctors Need To Start Working Together

Forbes Guest post written by  
Jason Karlawish, MD, and Dan G. Blazer, MD, Ph.D.
Members, Institute of Medicine Committee on the Public Health Dimensions of Cognitive Aging
By the time the condominium association notified Renee Packel that she and her husband were months late paying their fee, Mr. Packel, who was in charge of the bill paying, had also made several erroneous business transactions. Their money had disappeared. A few months later, he was diagnosed with Alzheimer’s disease.

We expect the financial system will preserve our wealth, and that healthcare will preserve our health and, as they do this, that they have little need to work together. And yet, our aging brains are intimately entwined into the financial system. The failure to integrate the care of our wealth and our health is why cognitive impairment is discovered too late. We need a system that delivers whealthcare.

Of all life’s day-to-day chores, managing finances is among the most cognitively demanding. Declines in financial capacity are among the first signs that an older adult is suffering from cognitive impairment, which means that not only doctors but the banking and financial services industries are also diagnosing it. The more the industry steps up to meet this new role, the more likely aging Americans will preserve their wealth and their health.

Among older adults, especially those 75 and older, diseases such as Alzheimer’s and Parkinson’s are common causes of subtle and eventually disabling cognitive changes. A recent Institute of Medicine report found added reason for concern. Many older adults who are free of these diseases experience cognitive aging.

The report — “Cognitive Aging: Progress in Understanding and Opportunities for Action” — explains that, with aging, some cognitive abilities remain stable or even improve, particularly knowledge and vocabulary. Other abilities, however, decline, and among these, the most concerning is the capacity for fluid intelligence, thinking fast and flexibly, and holding multiple facts at the same time to reach a decision.

These changes help explain why aging Americans are not only more likely than their middle aged counterparts to make financial mistakes or decisions that are less than ideal for their financial well-being, but also to be victims of predators who exploit their vulnerability. The Investor Protection Trust found twenty percent of persons 65 and older self-reported being taken advantage of by activities such as unsuitable investments, inappropriate fees, or blatant fraud. Annual losses from fraud and abuse are estimated to be as high as $2.9 billion each year.

For aging Americans who have capably and independently managed and grown their wealth through most of their adult lives, after retirement, events may conspire to set them up for a crisis. Income becomes fixed. Funds are needed to pay for everyday care, and financial management becomes more complex. Declines in cognition, coupled with predators — whether strangers or family and friends – puts older adults at financial risk. These events coincide when the older adult no longer can reenter the work force or has the time to recover losses. The burden of the loss not only falls on the older adult, but their family and society as well.

Cognitive impairment is not simply a medical problem. It’s a public health problem, and the banking and financial services industries are at its front lines. America must think outside the biomedical box to envision a system that cares for our health and our wealth. (Continue Reading)

Full Article & Source:
Why Bankers, Financial Analysts And Doctors Need To Start Working Together

Monday, July 27, 2015

Peter Falk Bill Coming to Utah

(KUTV) A Peter Falk bill is coming to the Utah Legislature.

Actor Peter Falk played Columbo, a rumpled detective, who was smarter than he appeared, and was one of the most popular characters ever on television.

Falk’s daughter Catherine Falk is now touring states asking for legal changes that would allow children to visit their parents in the hospital or a care facility.

“When my father was very sick, my sister and I weren’t given access. We couldn’t see him,” Catherine Falk said. Peter Falk suffered from Alzheimer’s and died in 2011. His second wife kept his children from him in his last illness. “It was his last days, and you just want to spend time with your father,” Catherine Falk said.

She is travelling from state to state asking for a streamlined legal process that would allow children to visit their parents.

“I’ve met with people in Utah who had the same problem,” says Sen. Todd Weiler, R-Woods Cross. Weiler will sponsor a “Peter Falk” bill in the 2016 Utah legislative session.

Catherine Falk says such bills are already pending in New York, New Jersey and Arizona.

Source: Peter Falk Bill Coming to Utah

See Also: Catherine Falk Organization

Join the Catherine Falk Organization Facebook page!

Protecting aging parents from in-home caregivers

HILLSBOROUGH COUNTY, Fla. - Many in-home caregivers are unlicensed and have little oversight on the job and that can leave aging parents vulnerable.

Tuesday,  Hillsborough County Sheriff's deputies arrested Kathy Jean Elliot and charged her with two counts of Exploitation of an Elderly Person and theft.

Elliot worked for Hanson Services as an in-home health care companion for the victims. Elliot removed large amounts of jewelry from the victims' homes and pawned the items.

During the investigation, the Hillsborough County Sheriff's Office discovered another case of elderly exploitation. Anita Louise Puskas, also an in-home health care companion with Hanson Services. Puskas withdrew large amounts of money from the victim's bank account, deputies said.

"They were likable girls," said Georgana Collins, administrator at Hanson Services "We didn't suspect either one of them. It was rather shocking to all of us."

But Michelangelo Mortellaro, an elder law attorney in Tampa, said exploitation of the elderly from in-home caregivers is all too common.

"You don't really know this person, and that person may indeed take advantage of you." Mortellaro said.

If you have aging parents, Mortellaro said try if possible to have documents drawn up sorting out who has control of bank accounts and financial information before in-home caregivers are hired.

"That also prevents people coming in and attempting to take advantage of you after you have let's say, a memory care issue," Mortellaro said.

Mortellaro also recommends checking up on in-home caregivers. He said make sure food is being prepared and actually eaten by your aging parent. He also said check pill bottles to ensure medications are actually being given out and distributed properly.

He also said check receipts, bills and bank accounts to ensure there's no unusual activity or transfers.

"Keep close tabs using that power of attorney," Mortellaro said.

He also recommends making sure any caregiver hired is licensed, bonded and insured.

Hanson Services management told ABC Action News all of their approximately 40 caregivers are licensed, bonded and insured, and these two employees passed multiple background checks, but unfortunately, it wasn't enough to protect some clients.

"I just want them to know how sorry Hansen Services is that they were victims of someone who worked for us," Collins said. "It's rather sad for us to see this happening."

Hanson Services says they are cooperating with detectives and have reached out to all clients who have had contact with these two caregivers.

Detectives are continuing the investigation and ask that any other victims contact the Hillsborough County Sheriff's Office at 813-247-8200.

Full Article & Source:
Protecting aging parents from in-home caregivers

Abuse victim escapes, Holyoke Personal Care Assistant charged

HOLYOKE, Mass. (WWLP) –  A Personal Care Assistant, Jo Ann Engleston, of Holyoke, is facing charges after police say she abused a woman with disabilities who was in her care.

Holyoke Police Lt. Jim Albert told 22News that on Friday, the 66-year-old victim escaped Engleston (who was her live-in personal care assistant) and walked nearly a mile to the Loomis House on Jarvis Avenue. Police say the victim walks with a prosthetic leg and a walker, and that the journey took her more than two hours.

Loomis House staff called police, and took care of the woman until an ambulance could arrive. She was taken to Holyoke Medical Center with bruises all over her face and arms. Albert says the woman reported being abused by Engleston for more than five years, saying that she was sometimes “struck by wet towels.”

Engleston, 51, is charged with assault and battery on an elderly or disabled person, domestic assault and battery on a family or household member, and threat to commit a crime.

Holyoke police and Greater Springfield Senior Services are continuing to look into the case.

Full Article & Source:
Abuse victim escapes, Holyoke Personal Care Assistant charged