Saturday, April 7, 2018

Brookdale Senior Living residents join class action lawsuit

Bernie Jestrabek-Hart calls her Brookdale Senior Living Scotts Valley apartment a ‘live-in art studio.’ (Dan Coyro -- Santa Cruz Sentinel)
SCOTTS VALLEY >> Two residents of Brookdale Senior Living Scotts Valley have joined a lawsuit filed in federal court in San Francisco alleging the company based in Brentwood, Tennessee, committed elder financial abuse through understaffing that makes it impossible to provide services residents were promised and have paid for.

The lawsuit, which names seven plaintiffs, seeks class action status for 5,000-plus residents in Brookdale’s 89 assisted living facilities in California and at least $45 million in damages, $9,000 for each affected resident.

The lawsuit alleges Brookdale, a publicly traded company that is the largest provider of assisted living for senior citizens in the U.S., violated the Americans with Disabilities Act by failing to make its facilities readily accessible by individuals with disabilities.

Bernie Jestrabek-Hart, 72, of Scotts Valley, is one of the plaintiffs. The other Scotts Valley plaintiff is Patricia Lindstrom, 81, whose husband Art died in February of a heart attack.

The lawsuit alleges Brookdale staffing is based on predetermined labor budgets and desired profit margins, with permission from corporate headquarters required for deviation. This creates a disincentive for executive directors at a facility to request increased staffing “because they are not eligible for bonuses unless they meet earnings targets,” according to the lawsuit. Gay Crosthwait Grunfeld of Rosen Bien Galvan & Grunfeld, one of three law firms representing plaintiffs, contends the incidents detailed in the initial lawsuit filed in July are symptoms of a systematic problem at Brookdale facilities.

Jestrabek-Hart read about the lawsuit and contacted the law firm to share her story.

Brookdale spokeswoman Heather Hunter said, “We believe this lawsuit is without merit. We are not able speak directly to specifics, but we are defending ourselves vigorously.”

In February, Brookdale Senior Living reported a net loss of $572 million for 2017 on $4.75 billion in revenue, compared with a net loss of $405 million on $4.98 billion in revenue for 2017.

STAFFING ISSUES

Brookdale Scotts Valley, licensed for 220 beds at 100 Lockwood Lane, was called Oak Tree Villa before Brookdale took over.

Jestrabek-Hart, who uses a wheelchair, came to Brookdale Scotts Valley in October 2015 and is paying $4,477 per month plus $834 per month for assistance with dressing and showering.

Fees have risen 21 percent and 11 percent respectively since she moved in, compared to the 2016 consumer price index was 3.4 percent, according to the lawsuit.

A metal sculptor for 30 years, Jestrabek-Hart overcame polio and ran an equestrian facility in Idaho. In 2012, she switched to fabric creations after surgeries to fuse her back and replace her shoulders. She’s dealt with arthritis and fractured toes on her right foot.

She expected she would get help showering four times a week as per her contract and that she would be able to take the Brookdale shuttle bus to doctor’s visits and social outings, as the company website stated.

After she moved in, she learned transportation was limited — Monday and Thursday 10 a.m. to 4 p.m. — and she was told her motorized wheelchair was too heavy — which had not been an obstacle at her prior assisted living residence in San Jose.

She said she calls Para Cruz, and pays for the service herself.

According to the lawsuit, the fees have risen due to the cost of providing services but Jestrabek-Hart said there are not enough staff.

She was one of several residents stranded on the first floor for three hours, unable to reach her room on the second floor, when the power went out. She was unable to use to her CPAP machine, prescribed for sleep apnea; there was only one generator-powered outlet in another wing, inaccessible to her.

She has waited two to three hours for a staffer to help her shower, sometimes falling asleep before assistance arrives, and she has waited 90 minutes to an hour in the morning and evening for help dressing and undressing. She’s been told only one staff member is on duty to meet the needs of 150 residents.

She once fell out of her wheelchair onto the floor of the laundry room, enclosed by a heavy hard-to-open door and lacking emergency pull cords, with no way to summon help; by chance someone walked in and assisted her.

She notified the facility, but nothing has changed.

MEALS ISSUE

Lindstrom and her husband came to Brookdale Senior Living in November 2015, attracted by “nutritious meals and snacks planned by a registered dietician,” as one of the forms said.

Her husband had diabetes, heart disease and cognitive impairment. They paid $5,900 per month for a two-bedroom unit plus $400 per month as a second-resident fee, before moving to a smaller studio for $4,295 per month plus the $400 per month second-resident fee.

Lindstrom found there was no dietician on staff and too few staff to pay attention to individual dietary needs. The menus, determined in Tennessee, were starchy, mashed potatoes, baked potatoes and root vegetables, lots of canned foods rather than fresh, and “sugar, not just in desserts,” she said.
In three months, her husband gained 20 pounds, she said.

“His blood sugar was high repeatedly,” she said. “That meant his brain didn’t work right.”

COMPLAINTS

In April 2017, the state Department of Social Services, which licenses residential care facilities for the elderly, issued a $10,000 penalty to Brookdale Senior Living Scotts Valley after an investigation into a fall by elderly man on Feb. 21, 2016 and discovered the next day.

The man was hospitalized in the intensive care unit for dehydration and rhabdomyoloysis, which is when damaged muscle issue breaks down.

The state found the man had not received food or water for 24 hours, concluding “staff failed to provide.”

Jestrabek-Hart is serving her second one-year stint as president of the resident’s council. She sent letters last fall to then-CEO Andy Smith and in March to the new CEO, Cindy Baier, describing issues such as not enough staffing, transportation problems for those with electric wheelchairs and uneven sidewalks due to tree roots creating trip hazards.

State law requires residential facilities to respond in writing within 14 days to any written concerns or recommendations submitted by a family council representing residents, but Jestrabek-Hart did not get a response to her letters.

She said the new executive director, May Sunglao, who started in August, made some improvements, such as painting the sidewalk trip hazards yellow so they are easier to see and taking care of the lawn.

“Our staff is wonderful. They work very hard trying to do what’s right,” said Jestrabek-Hart.

If the lawsuit should be successful, she would like to see more staff.

At the front desk is a notice saying seven positions are available.

Baier, who became CEO Feb. 28, told McKnight’s Senior Living that the Brookdale plans to increase total compensation costs 5.5 percent to 6 percent, improving salaries and wages to boost employee retention.

Full Article & Source:
Brookdale Senior Living residents join class action lawsuit

Governor Walker signs Alzheimer's related bills into law


MADISON, Wis. - On April 3, Governor Scott Walker signed two bills related to Alzheimer’s care into law.

The first bill, AB-629, reviews and adjusts Guardianship Laws to allow Wisconsin courts to effectively communicate with other courts when a jurisdictional issue arises. Sample issues can arise in a situation involving individuals who live seasonally in another state, transfer of guardianship and long-distance caregiving. This bill would simplify the process for resolving a jurisdictional adult guardianship issue, thus allowing cases to be settled more quickly, and provide more predictable outcomes.

Bill AB-632 allows the Department of Health services to distribute up to $500,000 in grants to community programs in efforts to raise awareness and utilization of such services and support programs, specifically in rural areas.

“A lot of it is education and just making sure that the local agencies are empowered to educate people on where people can turn to,” said Abbe Klein with the Alzheimer's Association.

Both bills were passed through their respective committees and full chambers with unanimous “yes” votes, but the organization said they’re not stopping yet.

“There are always bills that are in the works and that we're always kind of advocating for and educating people on. So no, this is definitely not the end, it's a great step forward but there are always going to be more bills in the pipeline we're going to want support on,” said Klein.

For more information about the Alzheimer’s Association, visit alz.org or call 800.272.3900.

Full Article & Source:
Governor Walker signs Alzheimer's related bills into law

Former nursing home worker sentenced for sex with resident

Gonzalez-Medina
FORT EDWARD — A former nursing assistant who pleaded guilty to having sexual contact with a resident of the nursing home where he worked has been sentenced to 10 years on probation.

Richard Gonzalez-Medina, 25, pleaded guilty in Washington County Court in February to a felony count of third-degree criminal sexual act as part of a plea deal.

He was charged in connection with an incident last June at the Washington Center for Nursing and Rehabilitation in Argyle, where he worked.

His lawyer, Cheryl Coleman, said Gonzalez-Medina regretted the incident and that her client "mistook the victim’s silence for acquiescence."

The victim, who was in the home for rehabilitation, told police that Gonzalez-Medina had been fondling him during baths before attempting oral sex.

Gonzalez-Medina will have to register as a sex offender and faces up to 4 years in state prison if he violates probation. The state has stripped his CNA license, finding that he was guilty of "resident abuse."

Full Article & Source: 
Former nursing home worker sentenced for sex with resident

Friday, April 6, 2018

New mental health center doubles conservatorship beds in city for seriously ill

A number of Bay Area hospitals have banded together with city officials to try to help the toughest cases among San Francisco’s homeless.

The San Francisco Healing Center, a new 54-bed psychiatric facility, occupies an entire floor at St. Mary’s hospital and is intended to serve the city’s most vulnerable individuals: those suffering from severe mental illness or addiction, who are also some of the most difficult to channel off the streets and into stable housing.

Businesses in San Francisco have been concerned about the impact of the city’s sizable homeless population for years, especially as both residents and tourists continue to note aggressive behavior, open drug use and needles littering streets in surveys.

While the new center will not solve homelessness, it will add more resources and the center could be a model that’s scaled up in the future. It’s designed for a spectrum of treatment that includes 24-hour nursing and psychiatric care, counseling, medical treatment, community support and activities, and individual recovery and discharge planning.

“We have all worked together really well in trying to get this facility off the ground,” said Barbara Garcia, director of health at San Francisco’s Department of Public Health, which is involved in the project. “It’ll be providing mental health support, vocational training — it really is a recovery model.”

The center will double the city’s number of conversatorship beds. Granted by a judge, conservatorships are assigned in cases where an individual is mentally ill or drug addicted — or both — and unable to live independently. Previously, individuals who couldn’t be accommodated needed to wait for placement in out-of-county facilities, hospitals or jail.

What makes the center’s approach unique, according to Crestwood Behavioral Health Executive Vice President Patricia Blum, are practices that take into account multiple factors. Crestwood Behavioral Health is one of the partners involved in the project.

“We use really promising, evidence-based practices that include trauma-informed services, with a focus on treating trauma and not just the diagnosis,” she said. “We also use an employment model, helping to connect people with jobs in the community. If people have a meaningful role and purpose, there’s a significant impact.”

Although the number of beds is relatively small when compared to the city’s homeless population of nearly 7,000 — 40 beds, plus an additional 14 beds available to outside providers to purchase — getting help to more people should help both them and the city.

“We’re here as a business community worried about the very future of San Francisco’s brand,” Joe D’Alessandro, president and CEO of San Francisco Travel told the Business Times in 2016. In the past several months, property owners in both the Financial District and western SoMa have started working on creating community benefit districts to combat homelessness and dirty streets.

The 40 beds are for individuals who wind up in inpatient treatment through conservatorships. Conservatorships have been relatively rare until now, but they may also be expanding if SB 1045, a state Senate bill sponsored by Sens. Scott Wiener and Henry Stern, is successful. The bill proposes broadening the authority of counties to assign conservatorships to individuals who are too impaired by mental illness or severe drug addiction to care for themselves.

Wiener said that strengthening conservatorship laws for “extreme cases” are a necessary lever for getting chronically homeless into treatment.

“Here in San Francisco our public health officials and community organizations have been working tirelessly, but they need more tools to help the people that are suffering on our streets,” he said.

If the bill is successful, San Francisco Healing Center may serve as a particularly important partnership model for connecting some of the city’s neediest to a network of care beyond an initial hospital stay.

The healing center is a public-private partnership between the San Francisco Department of Public Health, Dignity Health, UCSF Health and Crestwood Behavioral Health.

The Department led the partnership, and will oversee the center and contribute $5 million per year to its operations. Dignity Health contributed the space. UCSF Health contributed $1 million toward renovations and programming. The program will be run by Crestwood Behavioral Health, a longtime partner of the city of San Francisco in providing mental health and addiction care.

“It’s difficult to find space in San Francisco. We were fortunate to find an empty space in a hospital, and I’m working right now on the potential for adding more beds,” Garcia said. “Having the facility on a hospital campus, individuals are a bit more protected and have access to more resources.”

Full Article & Source:
New mental health center doubles conservatorship beds in city for seriously ill

Great Falls assisted living managers charged with stealing from a dementia patient

Two women are charged with exploiting an elderly man's pocketbook from their positions as management in a Great Falls assisted living home. 

Jillian Lorrain Davis and Erica T. Lawrence are charged with exploitation of an older and incapacitated person, a felony. 

In October, one of the man's children reported to Great Falls police that he suffered from dementia and stayed at the Bluebird Assisted Living Facility. A woman reportedly charged with managing the man's finances said Davis, house manager of the assisted living facility, had been using his checking account for medical supplies, cigarettes, snacks and clothing. 

The woman told police that the man's medical supplies had been paid for by other sources and that he had no new clothes to show for the money spent.

According to court documents, the incident that prompted them to visit police included a $1,000 withdrawal from a Great Falls bank, which Davis said would be for a new TV. The family reported, however, that the man never got a new TV.

Great Falls police reportedly found that Davis had received approximately $1,967.50 from the man's account between August and October in 2017. Another $40 check was written to Ken Davis, Jillian's husband and not an employee at Bluebird, according to reports. 

In addition, Lawrence, a former Bluebird manager, was reportedly received $2,070 from the man's account between January 2016 and August 2017. 

In speaking with the general manager at Bluebird, police learned the "plan of care" for the man included conditions that the woman in charge of his finances would handle the man's money, not the staff. The plan was signed and filed by Davis and Lawrence, according to court documents. 

The manager also told police that Davis and her husband had reportedly been caught stealing a flat screen TV from the Meadowlark House, a facility affiliated with Bluebird. The incident was reportedly caught on surveillance footage, but they returned the TV and staff never reported the incident to police, she said. 

Meadowlark manager Laurie Kelly told the Tribune Davis no longer works at assisted living homes. She said Davis was likely allowed to return to work after the TV incident because she returned it, but added that there was less supervision at Bluebird to impose some discipline. 

In October, Davis reportedly stopped showing up to work after a manager said she wanted to have a meeting regarding some money matters. In November, officers were able to phone Davis, who said she "did not know" the man was a dementia patient. Davis was not in custody at her initial appearance on Monday after posting her $2,500 bond. Her arraignment has not yet been set.

Lawrence, according to court records, has not yet been arrested on a $2,500 warrant issued in January.

Full Article & Source:
Great Falls assisted living managers charged with stealing from a dementia patient

US judge clears Dillon in civil lawsuit

Minister of National Security, Major General (Ret’d) Edmund Dillon accompanied by his family members, and attorney Ernest Wilson Esq outside the US Supreme court in New York yesterday. PICTURE MINISTRY NATIONAL SECURITY
 
National Security Minister Edmund Dillon has been cleared of any wrong doing by a US Supreme Court judge yesterday in a civil matter brought against him.

The judge also ordered that the matter be sealed on the basis that there was too much negative publicity over the matter in T&T.

Dillon, who left for the US on Monday, made his final appearance yesterday in a New York courtroom before Justice Laura Vistacion-Lewis.

Dillon was named in article 81 Guardianship proceedings related to someone he described as a longtime friend, eighty-eight year old Neville Piper. Dillon was accused of fraud, exploitation and elder financial abuse.

The issue in question is a valuable downtown Manhattan condominium which Dillon claimed was gifted to him from Piper. Issues were also raised about the authenticity of the signatures on the transfer documents.

When the matter was called yesterday, Justice Vistacion-Lewis ordered that the matter be held in chambers, a request that was agreed to by both sides.

She also ordered that the records be sealed.

During the two hour long discussions in chambers, Vistacion-Lewis indicated she was aware of the reporting in this country.

Previously, she had also written to the legal teams involved expressing annoyance that details of a private matter were leaked to the press.

Although the matter was held privately, Justice Vistacion-Lewis authorised the release of one statement as it relates to the proceedings…that there was no finding of wrongdoing against Dillon. No further details were authorised to be released about what that means or the resolution in the matter.

As of today, there will be no more proceedings related, and as such, Dillon is no longer required to travel to the US for this matter.

In a release issued by the Ministry of National Security yesterday afternoon, Dillon said he was pleased to report that the court proceedings in the United States, “with respect to his friend Neville Piper, has been fully and effectively resolved.”

“The Honourable Judge, ordered that the record of the proceeding be sealed and restricted, all parties interested in the proceeding from making any public statements, save and except, that there has been no finding of wrongdoing against Minister Dillon,” the release stated.

In a previous interview, Dillon said he didn’t see it fit for him to step down as National Security Minister and made it clear that values his integrity.

Efforts to reach Dillon for comment proved futile as calls went unanswered and messages went without any response.

More info

Eighty-eight-year-old Neville Piper’s niece, Esther Nicholls made an application for the appointment of a Guardian for the property in which it is alleged that based on a power of attorney “on August 21 2017, a purported transfer of an undivided 50 per cent interest in the Alleged Incapacitated Person (AIP), Piper’s, condominium was made by Piper to Dillon and that Piper lacked the capacity to make such transfer validity, that the purported signature of the AIP on the deed and transfer documents does not appear to be Piper’s signature; that the AIP denied ever executing said documents, denied recollection of said transaction and has stated that he would never have made such a transfer and that the AIP had no attorney and no guardian for said transaction; that there were several large transfers and withdrawals from the AIP’s account which is inconsistent, uncharacteristic and contrary to the AIP’s history, practice and norm and that the AIP may have been the victim of elder financial abuse, exploitation and fraud.”

The Court Evaluator’s report states that Piper, who is now at the New Jewish Home in semi-private room on the second floor, did not recall any visits by his family members and stated that he hadn’t seen his niece in years and would not know them if he had seen them.

Consequently on February 15, the court ordered that during the turnover proceedings and until further order of the court Dillon is enjoined, prohibited and restrained from transferring any interest in the condominium unit located at 301 Cathedral Parkway, Unit 8L, New York, NY, 10026, including any interest which Dillon may claim pursuant to the Deed dated August 21, 2017, related to said property.

Full Article & Source:
US judge clears Dillon in civil lawsuit

Thursday, April 5, 2018

Who Is Watching Vermont's Legal Guardians?

Bruce Thomas and two of his siblings waged a costly court battle for eight years, alleging that their brother Paul abused his legal power as their elderly mother's court-appointed guardian and bled her holdings of $1.1 million.

Paul paid himself for work that wasn't necessary or wasn't done, his siblings alleged in court filings. They said his self-dealing was an obvious conflict of interest. On March 21, Orange County Probate Judge Bernard Lewis effectively removed Paul from control of Miriam Thomas' finances, though he will continue to act on his mother's behalf on medical and nonfinancial issues.

Lewis' order says he will replace Paul with a "neutral third party" who will serve as financial guardian. The order doesn't accuse Paul of theft, but the judge made it clear that the "sloppy or incomplete" financial records Paul filed for Miriam's estate made it impossible to figure out what he was doing with her money.

Although Bruce and his two siblings ultimately got what they were asking for, Bruce said their long fight illustrates Vermont's weak oversight of guardians. He is seeking action by the state legislature to toughen relevant laws.

Attempts to contact Paul for this story were unsuccessful. His attorney, Frank Olmstead, declined an interview but suggested in an email to Seven Days that there was more to the story.

"Neither the guardian nor I will address the likely incorrect, exaggerated and misleading statements about our conduct involving Jane Doe that have been made by some of her adult children," he wrote, making a point of not using Miriam's name. He also wrote, "The Probate Court has not concluded that there has been any abuse or exploitation of Jane Doe despite years of urging by several of her adult children."

The seeds of the Thomas family dispute were sown more than 10 years ago. As Miriam's husband's health declined before his death in 2007, her mental facilities also began to falter, and she granted Paul power of attorney — legal authority that allows a person to manage finances on someone's behalf. Power of attorney can be granted without a judge's approval.

In 2009, Miriam, who had developed dementia and could no longer tend to her own affairs, moved to the Valley Terrace nursing home in Wilder. Since then, court records say, Paul has paid himself tens of thousands of dollars for fulfilling his duties as guardian. Still, he kept shoddy records and filed them after legal deadlines, Judge Lewis ruled.

When Bruce and his siblings began to suspect in 2010 that Paul was mismanaging their mother's estate, they went to Orange County Probate Court to ask Lewis to install Bruce, who lives in Trumbull, Conn., as their mother's guardian. A guardianship carries authority similar to a power of attorney, often has broader authority and is assigned by a judge.

Instead, the judge appointed Paul, who still lived in the family's Newbury home. From then until his March decision, Lewis presided over a long and contentious dispute that he characterized in a ruling as a "family feud," noting that yet another sibling sided with Paul.

Even Paul's handling of his parents' tree farm became a point of dispute. "Guardian's actions are in violation of the Court's December 12, 2013 order," Lewis wrote in the March decision. "For 2014 and 2015, Guardian spent $72,000 of estate funds to generate timber proceeds of $42,000, creating a loss of $29,000. Guardian paid himself $71,000 for this work."

Bruce said that while Vermont laws to protect elders look good on paper — requiring guardians to report their activities to the court for review and giving judges power to remove guardians who don't comply — more rigorous oversight is needed.

Attorneys and state officials say disputes such as the Thomases' are increasingly common as Vermont's population ages.

"We have counties in Vermont that are reaching over 20 percent of population above the age of 60 as the baby boomers are aging and dying," said Paula McCann, who practices elder law in Rutland. "Our probate courts are now part time because of budget issues, and they only have a certain number of staff."

McCann said that situation limits oversight of guardians. The courts don't always detect the sometimes-complex schemes that defraud older Vermonters, she said.

The state's other efforts are similarly limited. Adult Protective Services, the state agency responsible for investigating allegations of abuse, neglect and financial exploitation of vulnerable adults, has 11 investigators. APS Director Joe Nusbaum said his staff's main job is maintaining and updating a statewide registry of people against whom others have made substantiated allegations of abuse. Employers such as hospitals and nursing homes use it to vet potential hires.

Nusbaum said his investigators stay busy.

"We receive about 3,000 to 4,000 reports to Vermont APS a year," he said. "And from those reports, we open about 1,000 to 2,000 investigations."

Many involve allegations of mishandled money.

"Financial exploitation is the largest percentage of cases that we deal with, and it is also the fastest growing," he said. "It's only getting larger."

Seniors in nursing homes and other group settings have the protection of the Vermont Attorney General's Office's federally funded Medicaid Fraud and Residential Abuse Unit. Its prosecutors regularly get cases alleging theft by a guardian or a family member with power of attorney.

Steve Monde, an assistant attorney general in the unit, said it handles about 12 cases of financial exploitation every year, though not all end up in court. Part of the difficulty in working these cases, Monde said, is the close relationship between the victim and the accused thief.

"There's a lot of gray areas in these [power of attorney] agreements, and an individual's often given a great deal of latitude over making judgments about finances, so it's very hard to say, 'OK, where's the line and when was it stepped over?'"

Sometimes it's pretty obvious when the line has been crossed, as in a case involving a client of Rutland attorney McCann. She recounted walking into her office one Monday morning after a ski vacation.

"And I get a phone call from this client, and he's a wreck — just yelling at me that all of his money's gone," she said.

It was. The client had been working with Donah Smith, an employee at ARC (Advocacy, Resources, Community), a Rutland community organization that helps manage seniors' government benefits. Smith handled a number of clients' bank accounts, and McCann, acting on behalf of her client, gave Smith power of attorney so she could do the same for him.

According to the Federal Bureau of Investigation, between 2008 and 2010 Smith drained thousands of dollars from the accounts she managed to pay her personal expenses. Smith was sentenced in 2011 to two years in prison for federal mail and wire fraud.

"I thought I had vetted her," McCann said.

Since then, McCann has made it a personal mission to prevent her clients and other elderly Vermonters from having their money or credit stolen by people in positions of trust. More than once, McCann has investigated cases and brought findings to the FBI. She doesn't bother going to probate court or to local law enforcement.

"I'd love to tell you that this is a civil matter, in civil court — that we can take care of things. We can't," she said. "If cash has been stolen, you need to get the case criminal as fast as you can. And it frankly needs to go to the FBI because the feds are the only ones who can quickly freeze and then seize assets."

McCann said she works quickly to find a "federal hook" in elder exploitation cases. Sometimes the stolen funds are federal benefits, which puts a case in the feds' jurisdiction, she said.

McCann said many cases are a straightforward matter of stolen money, but others are more creative. In one instance, she said, a man got elderly Vermonters — including a client of hers — to co-sign for more than $105,000 in student loans. He had no plans to pay back the loans, though, and left the elderly Vermonters holding the bag.

"It was a mess," McCann said.

McCann's approach to preventing situations like the Thomases' is to encourage transparency. Often, she said, that's as simple as crafting the right legal documents and then holding a family meeting to explain what will happen when the client dies or becomes unable to care for himself or herself.

"That way the elder has, at one time, with all of their people present, expressed their wishes," she said. "And if we can do that ... then chances are we're not going to have any disputes. Because everybody heard Mom or Dad say, 'This is the way it's going to be.'"

Bruce and the siblings who sided with him want Vermont to make situations such as theirs easier to address once suspicions arise. They thought they had all the proof they needed and that their brother's missed filings and alleged self-dealing should have led to his removal as guardian, Bruce said. Despite their multiple filings, Judge Lewis declined to do so until last month.

The judge blamed their side for some of the legal delay — and in 2017 ordered the matter to mediation, which failed.

Bruce and two siblings made repeated requests before Lewis allowed them to look through the estate's records. Bruce said they could have saved some of their mother's money if they'd had access sooner and that the case shouldn't have taken years to resolve.

"Vermont has many laws that are designed to protect wards in a guardianship situation," Bruce said, "but it gives probate courts far too much discretion in whether or not to enforce the laws."

Lewis did not respond to requests for comment for this story. A voicemail message at his office said he is on medical leave.

Bruce and his siblings who joined him in the court case have already spoken to Rep. James Masland (D-Thetford), who represents Miriam's district. Masland told Seven Days he hopes to introduce legislation next year to address their concerns.

Masland would like to give family members the legal authority to view an estate's financial records and to mandate that guardianship records be kept for 10 years to provide a clear picture of an estate's management.

Sen. Dick Sears (D-Bennington) and Rep. Maxine Grad (D-Moretown) chair the Senate and House Judiciary committees, respectively — key panels for any reform to Vermont's guardianship laws. Both told Seven Days that they're willing to have a discussion about guardianship reform in their committees.

Bruce hopes for action. "When you recognize that there's a problem and that the current laws aren't sufficient to deal with it, you have to do something," he said.

Full Article & Source:
Who Is Watching Vermont's Legal Guardians?

Two former certified nursing assistants charged with stealing more than $500K from elderly patients

INDIAN RIVER SHORES, Fla. - Two Vero Beach women, who are former certified nursing assistants, are in jail for stealing more than $500,000 from elderly people they cared for in Indian River Shores.

“Here locally, this is probably one of this biggest ones that we’ve seen. That’s a lot of money,” said Indian River Shores Police Officer Albert Iovino.

Chiquita McGee and Sophia Shephard (AKA Sophia Brown) were arrested Tuesday on charges for exploitation of the elderly, organized fraud and scheme to defraud a financial institution.

Indian River Shores police say the duo convinced two elderly patients to open credit cards under McGee and Shephard’s name, linked to the victims' accounts, with an unlimited credit line.

Police said the pair purchased personal items, such as cosmetic dental work, plastic surgery, cruises, expensive jewelry, clothing, an engine for one of their cars, exotic car rental (a Rolls-Royce Ghost for five days at $995.00 per day), hotels in various Florida cities, and they paid a fine out of St. Lucie County.

Police said the total amount for all fraud related to the case is at least $543,973. The pair also fraudulently obtained checks from the victims, police say.

The women were self-employed, and contracted by Indian River Home Care Plus, according to the home health care company’s owner, Margot Kornicks, RN.

Kornicks released the following statement to WPTV:
The charges against Chiquita McGee and Sophia Shepherd are incontestably serious, and elderly exploitation is both deplorable and intolerable. Indian River Home Care (agency) and Indian River Home Care Plus (nurse registry) stand behind this statement, and we will and always have vetted both our employees and our contractors to the upmost degree, according to Florida state statute.
The contract with McGee and Shepherd was terminated on Nov. 16, 2017, due to unprofessional behavior including using abusive language toward staff members and forging hours. At that time, we did not know about the fraud. 
We learned of the fraudulent actions from the family at the end of November, and immediately reported the illegal activity to the authorities. Our commitment to our clients is steadfast, and we unwaveringly support our patients, their families and this community.
Lovino offered advice for anyone needing home health care for a loved one.

“You have to advocate for your loved ones. Follow up with these people. Find out as much as you can about the home health agency that’s providing the care. Spend the first three or four visits with the healthcare individual,” Lovino said.

He also said you can talk to your loved one about obtaining power of attorney to help track your loved ones expenses, and credit accounts.

McGee and Shepherd are being held in jail without bond and have a court appearance Wednesday.

Full Article & Source:
Two former certified nursing assistants charged with stealing more than $500K from elderly patients

Indiana guardianship registry prevents exploitation

A new online registry that aims to protect elderly people and others in Indiana from being financially exploited by their court-appointed guardians is now being used by courts in more than half of the state's counties.

The registry helps courts monitor guardianship cases, while providing limited public access to further help protect people who are unable to manage their personal and/or financial affairs, The (Northwest Indiana) Times reported.

"There's a lot of positive benefits for something like this," said Lake County Superior Court Judge Diane Kavadias Schneider.

Porter County Superior Court Magistrate Mary DeBoer said court reviews of guardianship cases ensure that a protected person's funds are being used appropriately.

"These protected persons are vulnerable to physical and financial exploitation, so it is particularly important to protect these protected persons and their assets from harm," DeBoer said.

She said the registry also helps the courts keep track of statistics related to their guardianship cases. DeBoer estimated that the number of cases will increase as baby boomers age.

She said the idea for the registry was created by herself and the other members of the Indiana Adult Guardianship State Task Force several years ago.

Erica Costello, a staff attorney at the Adult Guardianship Office at the Indiana Office of Court Services, said 56 of Indiana's 92 counties are currently taking part in the voluntary registry.

Full Article & Source:
Indiana guardianship registry prevents exploitation

Wednesday, April 4, 2018

She went to prison for fraud and bad checks. Then courts around Philly let her manage the finances for elderly residents

MARK C. PSORAS / For The Inquirer Heidi Austin, with her father, Josef Wituschek, displays a photo of guardian Gloria Byars from Byars’ Facebook page during an interview last year in Wituschek’s home in the Fox Chase section of Philadelphia.
Relatives of Edmund and Margareta Berg were shocked to learn, a little more than a year ago, that the court-appointed guardian handling the Fox Chase couple’s finances had a record of fraud, bad checks, and forgery.

Around that time, Marie Frisby began questioning the guardian appointed to help her husband, Hank. They contend that his bills weren’t being paid and, as a result, they had to sell their home in Wyncote, Montgomery County.

Meanwhile, Nu Vuong, a naturalized U.S. citizen who doesn’t speak English, had been moved by her guardian from her Kensington home to a Delaware County nursing facility where no one spoke her language.

In each case, the guardian was the same woman, Gloria Byars of Aldan, Delaware County.

Questions about Byars’ financial management led judges to remove Byars last year as guardian of the Bergs and Hank Frisby. She has since been removed from about 100 cases in Philadelphia, Montgomery, and Delaware Counties.

The experiences of the Bergs, Frisby, and Vuong demonstrate how well-meaning relatives can be swept away by a guardian who may not be acting in a person’s best interests. And Byars’ criminal record underscores what some advocates say is a broader issue: a lack of oversight in a beleaguered system responsible for caring for thousands of often elderly Pennsylvanians.

“We do have a crisis with professional guardians,” Philadelphia Orphans’ Court Administrative Judge Matthew Carrafiello said at a February hearing at which he ordered Byars removed from all her remaining guardianships. “We just don’t have enough.”

Nationwide, guardians oversee an estimated 1.3 million adults and $50 billion of their assets, said Brenda Uekert, principal court research consultant at the National Center for State Courts. And as the population ages, the demand for them is likely to grow.

In Philadelphia, about 6,800 adults are under guardianship care, many of whom are overseen by family members. Five lawyers also regularly serve as guardians, and others on an occasional basis, as well as about 17 non-attorney professional guardians, like Byars.

Any interested person or agency may petition a court to appoint a guardian. A judge then holds a hearing to determine if the person is “incapacitated” — unable to manage his or her own personal or financial affairs.  Once appointed, a guardian is paid through that person’s assets or income. Their fees vary: Some could charge $100 an hour, observers say, but they also could make much less overseeing a poor client’s finances.

Guardians must file with the court regular reports of the assets, income, and expenditures they manage. But otherwise, they are generally left alone.

The only legal requirement to become a guardian in Pennsylvania is the ability to read and write in English. And that in turn opened the door to applicants like Byars.

Philadelphia judges appointed her to 93 cases from 2015 until last summer, in most cases based on a recommendation by the Philadelphia Corporation for Aging. The nonprofit, which provides home care to more than 21,000 and helps thousands more through its tip line, is supposed to act as a watchdog for the city’s most vulnerable citizens.

But an attorney for the agency told a judge at a hearing last year that PCA did not know about Byars’ convictions for fraud and bad checks — a past that a simple Google search would have uncovered.

Abbey Porter, an agency spokeswoman, declined to discuss why PCA had recommended Byars and whether the agency had conducted a background check. She wrote by email that PCA is “aware of the complexities and challenges of the guardianship system, including the ‘vetting’ of guardians.”
Byars, 57, has not been charged for her role in any guardianship cases. She repeatedly has declined to speak to the Inquirer and Daily News, when approached in person or through phone calls and letters left at her office and home. Lawyers representing her also have declined to comment.

Diane Menio, executive director of the Center for Advocacy for the Rights and Interests of the Elderly (CARIE), in Philadelphia, said Byars’ record shows agencies and courts need more due diligence in choosing guardians.

“Someone convicted of financial crimes is certainly not someone who you want managing an incapacitated person’s finances,” said Menio. “This whole thing is based on trust.”

‘Unbelievable’

Court records show that in 2005, Byars was charged in Virginia with defrauding several people by using their discarded credit-card convenience checks, fished out from post-office trash cans. She pleaded guilty that October and was later sentenced to 37 months in federal prison and ordered to pay $29,503 in restitution.

After completing her term in December 2007, which included stints in a halfway house and on home confinement, Byars, who had once lived in Camden, moved to Delaware County. Her supervised release, which ended in December 2010, barred her from working in a job that required her to handle money or have access to financial accounts.

At some point, she began working for Robert Stump, a guardian and owner of RES Consulting in Havertown. According to one LinkedIn account, she worked there from 2008 to 2016. Stump did not return calls seeking comment.

The same LinkedIn account says Byars received an associate of arts degree in business administration from Kaplan University in 1981. A spokeswoman for Kaplan, headquartered in Chicago, said the university, which offers online courses, has no record of Byars’ taking classes.

In 2016, Byars branched out on her own, opening Global Guardian Services in Lansdowne, Delaware County.

That Dec. 6, Byars was appointed guardian for the Bergs, upon PCA’s recommendation. The couple, both in their 80s, didn’t want to leave their house on Borbeck Avenue, which they bought in 1961, relatives said.

But in late December, Margareta Berg was discharged from a hospital and — without the knowledge of her brother, Josef Wituschek — moved to a Montgomery County rehab facility. A panicked Wituschek and his daughter, Heidi Austin, then tried to call Byars, only to learn that she was in Spain, they said.

Austin grew suspicious. A Google search led her to a 2005 Virginia newspaper article about Byars’ most recent arrest. Soon afterward, Austin discovered Byars’ criminal history through an online background check.

That January, Byars moved the Bergs into a Montgomery County nursing home, then in February 2017 had their Fox Chase house cleaned out to sell it.

An accounting filed by Byars last year said she collected $4,487.50 in guardianship fees from the Bergs from January to July, a sum that consisted of monthly fees of $100 or $200, plus $2,000 for her to oversee the two-day cleanout of their house. (It’s unclear how much she made from all of her guardian cases, but court records show that she finally paid off her restitution in the federal fraud case by February 2017.)

After Byars sought court approval to sell the house, Wituschek hired a lawyer.  Attorney Daniel McElhatton learned that the company Byars had hired to clean the house, DEPCO LLC, was owned by Byars’ husband, Leon DeShields.

Mark C. Psoras / For The Inquirer
Heidi Austin displays a photo on her phone of her aunt and uncle, 
Margareta and Edmund Berg, as her father, Josef Wituschek (center), 
stands with her. At right is Wituschek’s attorney, Daniel McElhatton.
The lawyer says he found it “unbelievable” that Byars didn’t disclose the conflict of interest. He opposed the sale of the house and an $11,000 payment to DEPCO, alerted Orphans’ Court Judge John Herron to Byars’ criminal convictions, and asked the judge to remove her as guardian.

At a hearing in July 2017, Herron scolded Byars for failing to disclose the conflict and for not getting his approval to pay DEPCO. “It was self-dealing and should not have happened, and it should be refunded immediately,” the judge said.

McElhatton also questioned thousands of dollars in other withdrawals Byars had made from the Bergs’ accounts. Byars said she paid $5,000 in cash to the Bergs’ nursing home, but didn’t get a receipt – a step Herron called “negligent” and “reckless.”

Herron ordered Byars removed as the Bergs’ guardian and as guardian of 31 other active cases. He appointed Wituschek as successor guardian for the Bergs. Wituschek had previously not been able to serve because he was mourning the death of his wife.

Byars has since reimbursed the Bergs the $11,000 paid to her husband’s cleaning company, $5,200 for an unexplained cashier’s check she wrote from their account, and an additional $900 she collected from an auction of valuables from the cleanout of the Bergs’ house. The family is still questioning other expenses and items they suspect are missing.

At the July hearing, Byars’ then-attorney Robert Feliciani III, said she had 113 active guardianships, mostly in Philadelphia and Montgomery County.

Sam Brooks, an elder law attorney at Community Legal Services of Philadelphia, said other professional guardians at times carry caseloads as large or larger. A manageable caseload is closer to 40, he said, but to make a profit, guardians deal in volume, he said.

“There’s no money in it, for the most part, unless you have a person who’s incapacitated who has a substantial estate,” said Menio, the advocacy center director.

Guardians can still make money from low-income clients. They are assured $100 a month if the person is in a nursing home and receives medical assistance. They also can petition the court to sell a person’s house, then request compensation from the sale.

Billed for a birthday party

Hank Frisby was a Philadelphia police officer from 1960 to 1980, rising to the rank of sergeant. He then served full time in the Pennsylvania Air National Guard, and later in Montgomery County’s human resources department.

In early 2016, though, he was separated from his wife, Marie. After a nurse who was taking care of him at his Wyncote home suspected he was being abused by a relative, the nurse contacted the Montgomery County Office of Aging and Adult Services.

That March, Montgomery County Senior Judge Stanley Ott deemed Hank Frisby incapacitated after finding that he suffered from dementia and had problems paying his bills. The Office of Aging had recommended Stump’s company, RES Consulting, and Byars, who at the time was still working for Stump, was appointed his guardian, court records show.

While the Frisbys agree that his finances weren’t in the best of shape, they say that in the ensuing months, Byars didn’t pay his mortgage, real-estate taxes, or income taxes.

But she threw him a birthday party. In June 2016, he was invited to a party that Byars threw for him and other clients at her home. The party included an ice cream truck, a live band, food, alcohol, and boxes of sheet cake, including one for him, Hank Frisby said.

“I didn’t know anybody there,” Hank Frisby, now 79, said in an interview. “I stayed a couple of hours and left.”

He thought it was nice, he said, until he later saw a $750 charge on his account for being at the party for six hours.

Later that year, the Frisbys reunited, and Marie Frisby realized the state of his finances. In December 2016, their house was targeted for foreclosure.

Julie Shaw/Staff
Hank and Marie Frisby in March 2018 in their Philadelphia apartment, where they moved
 after having to sell their Montgomery County house.
They sold the house in May, then moved to the River Park section of Philadelphia.

Marie Frisby, 70, said she has seen no indication of how Byars spent her husband’s pension checks, totaling $80,000 a year, to his benefit — except once, when she bought a stair lift for him at the Wyncote house.

She also said Byars wouldn’t let her see her husband’s bank statements.

“We had no charges about how much she paid anybody, just her fees on what she charged us to do for us,” she said.

Concerned, she had filed a petition in court to have Byars removed as guardian, contending Byars was failing to pay her husband’s bills. With the help of a lawyer, Diane Zabowski, the Frisbys got Byars replaced as guardian in June.

State Sen. Art Haywood, the Democratic minority chair of the Aging and Youth committee, said Thursday that Marie Frisby will be meeting April 5 with a staffer in his office to see if there is any recourse for her husband. Haywood, a former Wyncote neighbor of the Frisbys, said he found it “outrageous” that they had to sell their home.

Haywood, who represents parts of Montgomery County and Philadelphia, said his staff is looking into the process of how guardians are appointed and removed.

‘My mom is not a prisoner’

Vuong’s son, Hue Quach, experienced similar outrage. On May 26, 2016, Byars was appointed Vuong’s guardian. A week later, she transferred Vuong, then 73, to a Delaware County nursing home without telling her son.

Courtesy of family
Nu Vuong
“Not only did she put my mom in this [nursing home] without telling me, she prohibited me from going in and seeing my mom” without Byars’ permission, he said in an interview.

Quach said his mother cried when he was allowed to visit her because no one in the nursing home could understand her — she speaks Vietnamese and Chinese.

He said he told Byars: “‘My mom is not a prisoner. She did nothing wrong.'”

Quach then petitioned the court to be his mother’s guardian. At a July 2016 hearing, Judge George Overton appointed Quach co-guardian. Quach then moved his mother to a South Jersey nursing home that has staff and residents who speak Chinese.

Byars has since been removed from that case — and the others in surrounding counties.

The final two removals came March 20 in Delaware County. The Orphans’ Court clerk there, Mary Walk, said the office began reviewing Byars’ cases after learning about her removals in other counties, but found no evidence of malfeasance in the two cases.

At the February hearing, Carrafiello, the Philadelphia Orphans’ Court administrative judge, had said he was unaware of any malfeasance in Byars’ caseload in his court. But he stripped her from the cases because he concluded she was no longer up to the task of being a guardian.

Montgomery County officials declined to discuss why she was removed from cases there.

Calls for improvement

Unlike 18 other states, Pennsylvania does not require professional guardians to undergo criminal background checks.

A state Supreme Court Elder Law Task Force had in November 2014 recommended that all guardians be required to undergo criminal background checks in a wide-ranging report that examined problems in the guardianship system, issues of elder abuse and neglect, and access to the justice system for elders.

That decision would fall to the state’s Supreme Court justices. The court’s Orphans’ Court Procedural Rules Committee at an April 20 meeting will be considering the issue of instituting background checks, said Northampton County Orphans’ Court Judge Emil Giordano, a committee member. His county already bars felons from serving as professional guardians.

State Rep. Mark Gillen (R., Berks) said in a March 23 interview that he soon would introduce a bill requiring criminal background checks for prospective guardians and prohibiting felons from serving.

Other legislators also have been trying to improve the system. State Sen. Stewart Greenleaf (R., Montgomery), chairman of the Judiciary Committee, last year reintroduced a bill that would, among other things, require court approval for any guardian fees.

Keelin S. Barry, a Philadelphia lawyer who served on the task force and whose office provides guardianship and elder law services, said “there is a huge shortage” of people willing to serve as guardians, but a great need.

“The elderly population has exploded,” said Barry, who was appointed to replace Byars as guardian for Hank Frisby.  “And people who in the past would have taken care of their older family member, now have moved across the city or across the country and are not able to take care of that person anymore.”

Full Article & Source:
She went to prison for fraud and bad checks. Then courts around Philly let her manage the finances for elderly residents

Stopping elder abuse is the goal of Georgia legislative measures

Georgia lawmakers this year handed seniors and their advocates several victories in their fight against the growing problem of elder abuse. Among them are tougher background checks for caretakers and a new statewide elder-abuse registry.

A new law will require employees with direct access to residents in nursing homes and other licensed senior care communities to clear an FBI fingerprint background check. The measure will help home care providers find out if applicants have been abusive in previous positions, and weed out current employees with a history of abuse.

That information will be put on a statewide elder-abuse registry so that anyone wanting to hire a caretaker can check the database.

The measure won’t kick in until 2021, giving elder-care facilities three years to complete comprehensive background checks on current employees and set up the procedure for new hires. The registry will be created immediately using a federal grant.

Advocates for the aged have long wanted to create a registry to prevent the hiring of caretakers with a known history of abusing vulnerable adults.

“There’s certainly room to improve it after it’s in place, but it’s a great start just getting the comprehensive background checks,” said Kathy Floyd, executive director of theGeorgia Council on Aging.

Currently, licensed care facilities are required to conduct a limited one-state and one-name background check on employees. The tighter scrutiny would close loopholes and catch offenders from other states or those who may have changed their name.

Georgia is one of only a few states that doesn’t already mandate fingerprinting, said Heather Strickland, assistant special agent for at-risk adults for theGeorgia Bureau of Investigation.

“This will certainly help and make sure those working with the elderly don’t have a past history of abuse,” Strickland said.

Advocates for the aged made elder abuse and the registry top legislative priorities this year. Vicki Johnson, chair of the Georgia Council on Aging, called the outcome “a great victory for seniors.”

“Both the council and CO-AGE have worked over the years to ensure that older adults, disabled persons and other vulnerable populations are safe and protected from exploitation,” Johnson said.

The state’s senior population, at 11 percent now, continues to grow. And with it has been an explosive growth in elder abuse.

Since 2010, reports of elder abuse have increased 550 percent, according to the Georgia Council on Aging. Yet only a small portion of these crimes are ever reported, said GBI Director Vernon Keenan.

Nationwide, it’s estimated that one in 10 older Americans are victims of elder abuse, neglect or exploitation, and that for every case of elder abuse, 23.5 cases go unreported, according to theNational Center on Elder Abuse.

For the past five years, state legislators have increased funding for Adult Protective Services caseworkers, hired additional GBI agents to focus on elder-abuse crimes, and set aside funds for an elder-abuse attorney to prosecute cases. Lawmakers have also increased training for law enforcement through the Division of Aging and stiffened penalties on unlicensed personal care homes.

Two other bills to combat elder abuse were also passed by lawmakers this year. One is a trafficking bill that will crack down on personal care home operators who prey on elderly and at-risk adults in need of housing. In many cases, these adults are forced to live in substandard housing in exchange for turning over all of their Social Security benefits or other financial allowances, Floyd said.

Another bill passed will allow for better coordination and communication between law enforcement and Adult Protective Services on sensitive abuse cases. The goal is to have multidisciplinary teams working together to form an elder-abuse task force in each judicial district.


ENGAGE with CO-AGE

Georgia Council on Aging volunteers will host meetings in communities across the state April 16-20 to share updates from the legislative session and discuss upcoming senior issues.

Meetings in metro Atlanta include:

• Wesley Woods Towers; Monday, April 16, 10-11 a.m., Wesley Woods Towers, 1825 Clifton Road, Atlanta.

• Clairmont Oaks; Monday, April 16, 2-3 p.m., Clairmont Oaks, 441 Clairemont Ave., Decatur.

• Forsyth County Senior Services, Thursday, April 19, 2-3 p.m., Forsyth County Senior Services, 595 Dahlonega St., Cumming.

Full Article & Source:
Stopping elder abuse is the goal of Georgia legislative measures

LETTER: Addressing elder abuse in Minnesota

To the Editor:

I serve on the bipartisan Legislative Audit Commission, which helps select audits and evaluations of state government programs. Last fall, reports of elder abuse flooded the media in Minnesota. As a result, an audit was recently completed, evaluating the Office of Health Facility Complaints that exists under the Minnesota Department of Health’s umbrella. Alarmingly, the report found that between 2012 and 2017, the number of maltreatment allegations increased by more than 50 percent. This is unacceptable and requires serious action from the Legislature.

The House majority has introduced legislation that would create multiple work groups to further discuss the problem; my concern is that it doesn’t take needed action.

Several DFL colleagues and I have sponsored bold legislation in step with Gov. Dayton that will strengthen and expand the rights of older and vulnerable adults and their families; enhance criminal and civil enforcement rights; create new licensing frameworks for assisted living and dementia care across residential settings; and improve licensing regulation and the investigative and reporting process.

These measures are built upon recommendations from AARP and the office of the Legislative Auditor.

Minnesota seniors have given so much to our communities and state. It’s our responsibility to ensure they are safe and live with dignity and security throughout their life.

Rep. Connie Bernardy, District 41A

Full Article & Source:
LETTER: Addressing elder abuse in Minnesota

Tuesday, April 3, 2018

Critics say insiders dominate committee working on guardianship reforms

With a new law taking effect July 1, the state Supreme Court has appointed a rules committee to get down to the details of reforming the state’s adult guardianship system – but the group’s composition is drawing criticism for including guardianship professionals but excluding critics and family members of incapacitated people.

Of the 22 people who applied to serve on the rules committee, the Supreme Court appointed eight members – two judges, five attorneys and a professional court visitor who advises judges in guardianship cases. The court visitor was the sole non-attorney appointed.

“Having seen the list, it looks like more of the same going on with the courts,” said Emily Darnell Nunez of Albuquerque, whose family was embroiled in a controversial guardianship case, beginning in 2010. “Some of these people make their living out of being attorneys for guardianship cases. So it looks like insiders.”

One non-lawyer who applied, but wasn’t appointed, is Jorja Armijo-Brasher, former director of the city of Albuquerque’s Department of Senior Affairs. She has been a vocal critic of the current system and served on the guardianship commission appointed by the Supreme Court to recommend improvements. That commission’s work ended Jan. 1, with a slate of reforms proposed.

“The hope was when it (the rules committee) went forward that there was potential and there would be some real scrutiny of the processes and procedures being used,” Armijo-Brasher said last week. “There’s always the concern when the people working for that industry may be the only ones looking at themselves. It is hard to always look at yourself without having other eyes to help you see clearly.”

Chairing the rules committee is Gaelle McConnell, an Albuquerque lawyer, who also served the Supreme Court commission last year. McConnell has a background in guardianship and conservatorship law.

The judges appointed are both from Albuquerque: Shannon Bacon, who has openly advocated change in legislative hearings, and Nancy Franchini, also a member of last year’s Supreme Court guardianship commission. Other members include Sarah Steadman, a professor at the University of New Mexico Law School, Alice Liu McCoy, a lawyer with Disability Rights New Mexico, and Mary H. Smith, a former assistant attorney general, who most recently worked for the state’s Office of Guardianship, which provides legal guardianship services to low-income incapacitated people.

The list also includes longtime Albuquerque attorney Ruth Pregenzer, who has specialized in elder law, probate and guardianship matters; and Mary Galvez, who has frequently worked as an appointed court visitor in guardianship cases.

Pregenzer, who said she no longer takes new guardianship cases, said in an interview Thursday that she understands concerns raised by critics.

“This (rules committee) is hard work. I’m not saying anybody can’t do it, but it doesn’t hurt to have some knowledge of the law, and some knowledge of the area of law that you’re being asked to prepare rules for. I don’t think that because I have expertise in this area that I represent the status quo.”

She also said the public will be able to comment on the proposed rules before they are adopted by the Supreme Court.

The rules committee work is considered especially important in view of this year’s legislative session.

The Senate bill that passed and goes into effect July 1 addressed several key concerns raised by advocates: more transparency in the now closed legal system by which incapacitated people are appointed guardians; more notice to family members of court proceedings; requiring financial bonds for professional conservators; and allowing greater visitation by relatives and others.

But other proposed legislative reforms were put on hold at the urging of the judiciary. Some see the rules committee as a vehicle for additional change without the need for legislation – although some say the committee could conceivably propose rules to limit the impact of some of the changes.

“I don’t know what direction this is going now,” Armijo-Brasher told the Journal last week. “Is it going in the direction we had hoped?”

Important work

The Supreme Court commission last year recommended the formation of the rules committee, and eight possible rules. They include:

• Requiring mediation in contested cases.

• Requiring national certification for professional, guardians and conservators.

• Addressing the court practice by which the petitioner’s attorney can “stack the deck” in favor of a guardianship by recommending to the judge who should serve as guardian, guardian ad litem, court visitor and the health care expert.

Critics have challenged whether appointed professionals are really working for the best interest of a protected person or family when it is the petitioner’s lawyer who has recommended their hiring.

Darnell Nunez served on the Supreme Court guardianship commission last year. She decided not to apply to serve on the rules committee, but she said it has the potential to make important changes.

“These (protected people) aren’t criminals we’re talking about. We’re talking about elderly people who are sick. Ordinary people who have lived good lives, who don’t deserve to have the fleecing of them at the end. Is this rules committee going to be the rules committee that creates the changes needed to make the guardianship system fairer and right for our elderly population?”

Both Pregenzer and Galvez were involved in the high-profile guardian/conservator case involving the mother of Emily Darnell Nunez, Corrales resident Blair Darnell. As profiled in a Journal series in 2016, most of Darnell’s adult children were highly critical of the closed guardian/conservator process and the fees charged by the professionals appointed to make decisions for Darnell’s care and her finances.

Both Pregenzer and Galvez also testified last May before the Supreme Court guardianship commission, chaired by retired District Judge Wendy York.

During her appearance, Pregenzer defended the professionals who are appointed on the recommendation of the person seeking the guardianship for an incapacitated person. Many petitions for guardianship aren’t contested by family members of others, but some are.

“Regardless of who nominates them to serve in these roles, (they) take their position very seriously,” Pregenzer told the commission last year. “Rather than rubber stamp any particular position put forth in a petition, they do their own independent investigation and try their best to provide helpful recommendations to the judge who has to make one of the most difficult decisions a judge can make.”

But the final report of the guardianship commission cited other testimony from “several commenters that the current system allows the petitioning attorney to ‘stack the deck’ in the petitioner’s favor. The Commission strongly believes that this practice should be avoided due to the potential of a conflict of interest.”

Some other states randomly select guardian ad litem attorneys for the alleged incapacitated person. In California, a court staff investigator also reviews petitions and advises the judge.

In New Mexico, there’s no court rule requiring the petitioner’s attorney to recommend appointees, but the practice has been described as a “convenience” for judges. The professionals who advise the court are paid from the protected person’s estate if a guardianship is granted.

In her testimony to the commission last year, Pregenzer said that more transparency would allow professionals to respond when family members publicly criticize their actions.

Under current law, when guardians or attorneys are “hammered” by criticism, Pregenzer said they cannot explain their decisions, because the cases are sequestered. Yet, she told the commission, “family members can explain their position to the news media.”

“I’m not against reforms,” she told the Journal last week. She said the new guardianship law’s mandate for open hearings “is going to help provide a more balanced view of the process, and heaven knows there are problems with the process.”

Powerful

Once appointed, guardians and conservators have virtual carte blanche over a “protected person’s” life and financial decisions, and can dictate whether family members will be allowed to have contact with them.

Top managers in one now-closed Albuquerque-based guardianship firm have been indicted on federal charges alleging they stole millions of dollars from their New Mexico clients. The firm had been appointed in hundreds of cases.

There has been widespread criticism, here and nationally, that protected people under some guardianships or conservatorships are being isolated and their funds mismanaged.

The Journal reported recently that required annual reports guardians and conservators are supposed to file with the court about the welfare and finances of the “protected person” in their care were missing in dozens of cases in southern New Mexico alone.

Moreover, the courts don’t have the computer capability to say with certainty how many people in New Mexico are currently under a guardianship or conservatorship.
Full Article & Source:
Critics say insiders dominate committee working on guardianship reforms

State Auditor Wayne Johnson To Look For Audit Solutions For New Mexico’s Guardianship Program

SANTA FE – State Auditor Wayne Johnson today says he’s honored to join a task force with the New Mexico Supreme Court and representatives from throughout state government to bring sunshine and accountability to New Mexico’s adult guardianship system.

The task force Johnson has joined is charged with implementing newly passed legislation for improving the adult guardianship system.

Family members and advocates have complained for years about a process shrouded in secrecy that can take advantage of incapacitated adults, including the possibility of fraud and the systematic siphoning away of an individual’s life-savings.

“Implementing some type of audit system in the guardianship program just makes sense for people who are relying on strangers to manage their life-savings and expend it responsibly on their behalf,” Johnson said. “I strongly believe in openness and transparency in government spending. I think a similar standard applies when a judge orders a guardianship for someone who doesn’t have the ability to manage their own affairs. I’m committed to working with New Mexico families, judges, legislators, and anyone else with a stake in our guardianship program, to safeguard our seniors and other vulnerable adults.”

The full announcement of the guardianship committees can be found here.

Full Article & Source:
State Auditor Wayne Johnson To Look For Audit Solutions For New Mexico’s Guardianship Program