Saturday, June 7, 2008

Harris County Probate

For years families bogged down in Harris County probate courts have accused judges of bleeding estates of tens of thousands of dollars to pay high-priced lawyers for unnecessary work.

A Houston appeals court ruled that probate Judge Mike Wood improperly awarded what may turn out to be more than $2 million in fees to a trustee and his lawyers over the objections of a wealthy father who set up three trusts for his sons.

According to an article in the Houston Chronicle, the appeals court was brutal in its 46-page opinion. It ruled for a variety of reasons that Wood was wrong to grant a judgment of $1.9 million against Alpert while ordering the trusts to pay about $500,000 in fees to Crain Caton for representing Riley.

Among the errors:

•Wood was wrong to rule as a matter of law that Riley was actually the trustee of three trusts Alpert set up for his sons. Riley clearly was not the trustee of one of them, the court ruled. In the other two, the question should have been put to a jury because some evidence was against Riley.

•Wood was wrong to rule that Alpert had breached his duty to the trust. As the person who put the money into the trust, the court said, he owed no duty as to how the trust was managed. This is a widely acknowledged principle of trusts. Donors put money into a trust and give up control of it partly so they will not be liable for how it is handled.

•Riley accused Alpert of selling some stock in one of his companies to the trust to take a tax loss, but thereby caused a tax liability to the trust. The appeals court ruled, however, that the law doesn't even allow Riley to bring the claim. The reason is that only Riley, not Alpert, had the power to buy the stock from Alpert, and "the trustee alone is responsible as a fiduciary if he allows (Alpert) to mismanage trust property to the detriment of the trust."
This, again, is something a probate judge should know.

•The appeals court ruled that Judge Wood also erred in overruling the jury's finding that Riley had violated his duties to the trust and the two sons in a variety of ways. In other words the judge, not the jury, "convicted" the wrong man.

•The appeals court ruled Judge Wood awarded Riley tens of thousands of dollars in fees from the trusts in clear violation of language in them saying the trustee would earn no fees.

•The appeals court said the lower court should, based on its ruling, consider making Riley pay the legal fees for Alpert and his sons.

•The court ruled that even if a jury decides Riley was the legitimate trustee for two of the trusts, a new state law that went into effect in 2005 prohibits a trustee from pressing any lawsuit over the objections of the beneficiaries.

"All in all, the decision, without specifically saying so, describes Judge Wood as brazenly ignoring the law while liberally doling out the trusts' money to high-paid lawyers."

Judge Wood slapped again

See also:
Probate Showdown

Judge Mike Wood and Harris County Probate Court #2 is registered with the National Guardianship Association

Friday, June 6, 2008

Seeking Release from Guardianship

Keith Skorup received a tramatic brain injury when he fell off a lift while working at Lowes in 1999. Skorup has been in various places for long term care, most recently at White Oaks Nursing Home in Mt.Vernon. Skorup says he has recovered enough to be on his own, but his wife Rebecca has legal guardianship and refuses to let him leave the facility.

Two doctors testified about Skorup's recovery. They both say he is well enough to care for himself. Rebecca Skorup testified about his past problems with physical and emotional issues.

The judge will decide the case at a later date.

Source and Video: WSIL TV - Court Watch

See also:
Man seeks release from legal guardian

Attorney Andrew J. Kleczek was charged in a three-count complaint with misconduct related to his representation of Keith and Rebecca Skorup in workers' compensation and product liability matters. The Review Board affirmed the Hearing Board's findings of fact and findings of misconduct. Recommendation was that Respondent be suspended from the practice of law for a period of sixty days.

Thursday, June 5, 2008

Kinship Care vs Foster Care

New research from The Children's Hospital of Philadelphia:

Children removed from their homes after reports of maltreatment have significantly fewer behavior problems three years after placement with relatives than if they are put into foster care.

The study, which looked at a national sample of U.S. children removed from their homes following reports of maltreatment, is published in the June issue of the Archives of Pediatrics & Adolescent Medicine.

The results of the study provide compelling evidence to support efforts in recent years to identify what is sometimes referred to as "kinship care" as an alternative for placing children into non-relative foster care and to maximize the supports and services that will help children achieve permanency in these settings.

"Our results suggest for the first time, in a national population group, that family care may offer protective value in terms of well-being and stability for children in out-of-home care."
David M. Rubin, M.D., M.S.C.E., pediatric researcher and lead author of the study.

Full Article and Source:
Kinship Care More Beneficial Than Foster Care, Study Finds

See also:
American Medical Association
Archives of Pediatrics & Adolescent Medicine:

Kinship Care and Lessened Child Behavior Problems

Impact of Kinship Care on Behavioral Well-being for Children in Out-of-Home Care

Protecting Estates

The Colorado State Judiciary is reviewing its protective proceedings, and the Silvia Tessadri case is a big reason why.

When Tessadri entered the care of guardian Ann Grasee by court order in 2003, Tessadri had an estate valued at more than $500,000 as well as a home and trust. Grasee charges $100 per hour for her care, a standard fee for guardian ad litems in Colorado.

Tessadri's son, Rudy Bush said guardian Ann Grasee and conservator, Michael Beutz, have spent the $500,000 and are now listing his mother's house on the market.

Beutz and Grasee said the profits from the sale would be used to care for Tessadri, whose estate is now nearly bankrupt.

Bush lived with his mother in the $180,000 Lakewood house until the court ordered he move from the premise. Now, the property is being rented under lease until a buyer can be found.

"When it was determined there was no belief she would ever return home, it squanders an estate asset to have it empty," Beutz said. The trust (managed by Wells Fargo) wished to sell the house and received a court order to do so.

Bush said his mother should never have been put into guardianship or moved from her house into a care facility.

"A woman who had a half-million dollar estate and a house is now broke." "It's the saddest thing I've ever heard."

Full Article and Source:
Protecting estates from guardians, conservators

Call7 Investigators:
System Could Drain Your Retirement Savings

Bush's mother is one of thousands of elderly people in assisted living and nursing homes in Colorado whose affairs are overseen by court-appointed guardians and conservators, who run all aspects of their lives for a fee.

7NEWS Investigators found a state audit has raised serious questions about the case.

For example, why is the lawyer in charge billing $145 an hour for purchasing a washer, dryer and television for Bush's mother? Why is he charging $145 an hour for talking to an electrician and another $145 an hour for talking to her neighbors?

Beutz said his obligation is to protect her the best he can -- whether it's inquiring about someone he thought was a threat to his client or concern about a house with faulty wiring.

Even if the charges are justified, who is checking conservators' bills? Who's watching the money?

Jefferson County District Court Judge Stephen Munsinger told 7NEWS, "We don't have the resources to do it and we don't have the time do do it."

Ferrugia then asked, "Basically you have to rely on the good intentions of lawyers?"

"Absolutely," Munsinger replied.


Health Implications of Caregiving

Caring for a loved one?
• Learn about the impact caregiving is having on your health.
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Satellite Broadcast: June 25, 2008, 1-2:30 PM (Eastern Time)
There will be a live 30 minute Q&A session with the broadcast presenters following the broadcast via audio lines only starting at 2:30 P.M. (Eastern Time)

To register and find more information on the broadcast, where it can be viewed, and how to access the live Q&A please go to:

For more information send an e-mail to:

If you would like to complete the evaluation survey form after the broadcast, you may fill out online or download the form HERE

You may send completed hard copies of the survey to:

Spencer Schron
CMS, MS: S1-05-06
7500 Security Boulevard
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Satellite Broadcast: "Health Implications of Caregiving"

Wednesday, June 4, 2008

Issue: Guardianship Abuse

Each year thousands of Americans are placed under the supervision of court appointed guardians. Guardianships are sought for individuals (called wards) who are considered legally incompetent to make decisions for themselves.

HALT research shows that the nation’s guardianship system offers few procedural protections, and has spawned a profit-driven professional guardianship industry that often enriches itself at the expense of society’s most vulnerable members—the elderly.

Yet despite numerous calls for reform, most states have done little to monitor professional guardians and prevent abuse. This issue brief points to emerging reform strategies for dealing with professional guardians and other problems currently plaguing the nation’s guardianship system.

Issue Brief addresses:

1. How the System is Supposed to Work

2. Serious Problems - Few Procedural Protections

3. A Profit-Driven and Poorly Regulated Guardianship Industry

4. A System Plagued by Abuse

5. Poor Record-Keeping and Oversight

6. Reforming the Guardianship System

7. Regulating the Professional Guardianship Industry

8. Adopting Standards of Conduct for Guardians

9. Improving Court Monitoring and Enforcement

10.Establishing Compensation Guidelines and Restricted Accounts for Guardians

11.Revising the Procedures for Emergency Guardianships

12.Notifying Wards of the Right to File for Restoration of Rights

13.Establishing Regulatory Bodies and Disciplinary Mechanisms

HALT - Issue Brief: Guardianship Abuse

HALT is an organization of Americans for legal reform.
Phone: 1-888-FOR-HALT
(202) 887-8255
Fax: (202) 887-9699
1612 K Street, NW Suite 510
Washington, DC 20006

Tuesday, June 3, 2008

Wards’ Assets and Well-being at Risk

Major problems in the Kentucky state guardianship program place the well-being and finances of more than 2,500 wards of the state at risk, according to an audit by state Auditor Crit Luallen.

“Not only did we find that their financial assets were grossly mismanaged, but more seriously, we found that inadequate staffing puts their well-being at risk.”

The audit attributes the problems largely to lack of sufficient case managers and fiduciary workers to oversee the personal care and finances of wards of the state.

The audit found:

* significant control and operational deficiencies within the program that, as of August 2007, oversaw the needs to 2,555 active wards and their assets, which totaled more than $25 million

* case managers who oversee personal care and fiduciary workers managing finances are not working together

* inadequate staffing

* auditors were unable to find proper documentation for more than $1 million in special-needs payments that are advanced to wards or the facilities where the wards reside

* auditors found more than $200,000 in interest income earned on wards’ assets had not been distributed

* auditors also discovered that, dating to 1989, deceased wards had balances of more than $1 million in accounts that had not been closed

The audit makes 43 recommendations to improve the system.

Audit finds problems in state guardianship program

Audit says state guardianship program has problems

Report on state wards is critical

See also:

State Auditor Crit Luallen releases analysis on Ky. Guardianship
State adult wards’ assets and well-being at risk

See audit:
2008 Guardianship Performance Report

Monday, June 2, 2008

Appellate Court: Right or Wrong?

The ruling by a Texas appeals court that the state's child protection services had unsufficient grounds to seize hundreds of children from the FLDS compound in Eldorado is a welcome and timely check on the illegal application of state power against an entire religious community.

The well-reasoned conclusion of the Third Court of Appeals simply stated what had become obvious and increasingly disturbing: The Texas Department of Family and Protective Services, acting only on long-held suspicions and an anonymous phone call that proved bogus, had wrongly taken custody of some 460 children.

In essence, here's what the court said: You can't grab people's kids and put them in foster care unless you first prove that each one is in imminent danger.
Tribune Editorial
Texas justice: Court says state acted illegally against FLDS

There are some fundamental problems with the court's opinion. The court states that because not all FLDS families are polygamous or allow their female children to marry as minors, the entire ranch community does not subscribe to polygamy. Wrong.

They are living on a polygamist ranch and are members of the church -- a sect that left the Mormon Church so it could practice polygamy.

The court even reasoned that under Texas law, "it is not sexual assault to have consensual intercourse with a minor spouse to whom one is legally married" and that Texas law "allows minor to marry -- as young as age 16 with parental consent and younger than 16 if pursuant to court order." Wrong again.

The polygamists are not "legally married" to anyone since it is illegal to marry more than one person. They are "spiritually married" and abusing young girls. Finally, the court also states there "was no evidence that .... the female children who had not reached puberty, were victims of sexual or other physical abuse or in danger of being victims if sexual or other physical abuse."

The Department should wait until the kids are actually abused before doing anything. It's almost as if the Department can't win: If they act, they are overzealous; if they don't act, they are not doing the job entrusted to them -- protecting our children.
Sunny Hostin, legal analyst on CNN's American Morning

Family Feud Over Estate

The story of the Peebles family is now before the Court of Appeals. If the court declines to hear the case or hears it and rules against Clifton Park resident David Peebles, it means that a family vacation home his parents, Robert and Gertrude, bought 35 years ago in Bolton Landing will be auctioned. Peebles believes the state’s 1993 Mental Hygiene Law, designed to protect people like his mother, who suffers from Alzheimer’s disease, has been disregarded over the sale of her house. As a result, he claims in court filings and interviews, he has been cheated by his sisters and brother in an effort to cut him out of the family trust.

“The Mental Hygiene Law is being ignored. My mother’s rights have been violated,” He readily admits, he has something to lose, too … access to the vacation home valued at more than $1 million.

Peebles’ siblings, Joan Peebles, Sally Stern and Robert Peebles Jr., argued that David Peebles has obstructed their use of the home.

David Peebles is hoping the Court of Appeals agrees with him where lower courts did not.

Source: A family feud, lessons for others