Saturday, July 5, 2008

Key Issues for Reform

The first is making it MORE DIFFICULT to conserve someone. Conserved parties lose their constitutional rights - the right to vote, the right to life, liberty and the pursuit of happiness, the right to legal representation of their choice and more. Even the most afflicted person is usually able to make choices about where they want to live, what they eat, what they wear, who they see... Taking away these rights should not be taken as lightly as it is. It should be one of the most difficult things to do. Since Guardianship is a matter of removal of constitutional rights, it follows that Guardianship should be the jurisdiction of Federal courts. This is key! It takes the net out of the water.

Again, making it MORE DIFFICULT to accomplish and EASIER TO GET OUT OF should be the focus. It would get many of us out of the current net we are currently caught in.

The second issue is one of family. Third party Guardianships destroy families. This should almost NEVER be allowed. As far as I'm concerned, if a Guardianship needs to be placed forced on someone, a bad family guardian is still better than the best 3rd party guardian. The law is SUPPOSED to consider family members first but instead uses family disagreements as a tool to destroy and pillage the estate of the ward. Changing the law to make this mandatory would go a long way. Ideally, there would have to be some verifiable abuse required in order to preclude a member of the family from being appointed.

The third issue is making Third Party Guardianship a nonprofit agency with a cap on fees. I believe the cap for Public Guardians is 1.9% of the estate per year. Making this amount uniform removes most of the "chum" from the water and attract fewer sharks to a tank where there is little or no profit!"

Written by a NASGA member

Outmoded Rules

Each year, thousands of children taken from troubled homes are eventually placed with a parent or close relative in another state, often for eventual adoption. Most of the transfers take months and some take more than a year because of what experts say are outmoded rules.

Such transfers are governed by the little-known Interstate Compact for the Placement of Children. The pact, adopted decades ago as law by every state, was designed to protect foster children from unsafe placements, but it is being challenged by many experts as inflicting unnecessary emotional harm on children, and for not requiring the court oversight that is normal in other custody cases.

Under the pact, the “sending” state, where the children live, must formally ask the “receiving” state to evaluate prospective guardians and visit their homes. Then the receiving state must carry out the evaluation and report back. The pact imposes no deadlines, and overburdened agencies may take months to send the initial request or to make a home visit. And it affords no right of courtroom appeal for the sending state or the relative when a social worker rejects a prospective guardian.

Vivek S. Sankaran, a law professor with the Child Advocacy Law Clinic at the University of Michigan : “Kids are unnecessarily remaining in overtaxed foster systems, when there are relatives who are ready and willing to take them immediately.”

Full Article and Source:
Waits Plague Transfers of Children to Relatives’ Care

Probate and Identity Theft

A News Five Investigation uncovered thousands of Social Security numbers, birthdays and signatures published on the Mobile County Probate Court's website, and Probate Judge Don Davis says there is nothing he can do about it.

Lawmakers Failed To Protect Your Identity

"Current Alabama law does not permit a probate judge, anywhere in the state of Alabama, to redact information off a document," said Davis, who has spent the last two years working with lawmakers to address the issue. Davis says the Alabama House of Representatives passed a bill to allow Probate Judges to delete private information, but the measure failed in the Senate.

Private Information Is Public Record

Friday, July 4, 2008

Probate Judge and Partner

A lawyer trying to drum up business for his law firm online touted the fact that his firm includes a Connecticut probate judge.

A real estate investment firm looking for property to buy in probate courts in Connecticut, New York and New Jersey posted an ad on a professional networking site looking for probate attorneys. Micky Fox, a law partner of Brookfield Probate Judge Joseph Secola, responded to the site's ad: "My partner, Joseph Secola is not only a Probate Judge in Brookfield, CT, but ihe (sic) is also licensed in New York."

The judge responded: "complete and total mistake, his partner, Fox, should have checked with him first." "He doesn't understand the ethical restrictions I'm under," and "I don't even put on my letterhead that I'm a probate judge."

The probate court administrator said he forwarded the complaint to an ethics committee made up of probate judges.

Full Article and Source:
Actions Of Probate Judge's Law Partner Prompt Ethics Complaint

See also:
Connecticut Probate Judges

Reforming Foster Care

H.R. 6307, the Fostering Connections to Success Act, was passed last week by the House. This bill is a strong first step in reforming the foster care system, and it includes provisions supporting kinship caregivers.

The bill includes the three core elements of the bill, H.R. 2188, the Kinship Caregiver Support Act.
1) it allows states to use federal funds to support family caregivers raising relatives in the foster care system;

2) it provides funding to establish kinship navigator programs;

3) it requires notification of relatives when a child enters the foster care system.

Research clearly shows that kinship foster care families are safer, more stable placements that are more likely to keep children connected with their siblings and communities than non-relative placements.

In Illinois, studies projected a savings of approximately $48 million over ten years. Federal financial assistance currently is available to foster and adoptive families. Only a few states receive a waiver to provide such aid to kinship caregivers. Illinois enjoys such a waiver, which currently serves over 6,000 children statewide. H.R. 6307 removes this roadblock for all the states and offers an important path to permanency. The bill also facilitates kinship care foster placements by requiring states to notify grandparents and other adult relatives when a child is removed from custody of a parent.

Full Article and Source:
DAVIS: Advancing kinship care

See also:
Kinship Care vs. Foster Care

Foster Care Legislation

Unsealing Court Records

Last year, an award-winning Review-Journal investigative series, UNDER WRAPS: The case of the missing suits - Nevada judges claim the right to seal lawsuits from view, leaving public in the dark found that judges had hidden more than 100 cases from the public. Judges also sealed their own identities. The newspaper's investigation determined that most of the cases were sealed solely to spare the wealthy and well-known, many of them lawyers, from perceived embarrassment.

Some of the cases include:

* The State Bar of Nevada named as a co-defendant in a lawsuit filed by a man serving a life sentence in prison. The bar had requested that the case be sealed.

*A lawsuit that accused a Catholic priest of bilking more than $200,000 from an elderly parishioner alleged that a second priest coached the victim before her testimony was taken in a deposition, and that the accused priest was allowed to be present during her deposition. The Diocese of Las Vegas requested that the lawsuit be sealed.

In response to the articles, the Nevada Supreme Court took less than a year to enact new rules limiting the sealing of civil cases.

Previously, District Court judges exercised unlimited discretion in sealing lawsuits. The new standards require jurists to hear a compelling public argument for privacy and enter a record of the justification for sealing a case, including all parties involved.

Full Article and Source:
EDITORIAL: Opening sealed lawsuits

Thursday, July 3, 2008

Former Ward Files Suit

Rita Hunter, Jasper County public administrator, her attorney and an area physician are named in a lawsuit filed in Jasper County Circuit Court.

The lawsuit, filed Tuesday on behalf of Emma France, stems from actions that made France a ward of the public administrator.

In addition to Hunter, it names John Podleski, the public administrator’s attorney; Crandall and Podleski, his law firm; and Stephen Bazzano, the physician who signed the medical certificate submitted in court action that declared France incapacitated and disabled. The suit seeks judgment of at least $1 million on each of the three counts.

Full Article and Source:
Administrator, lawyer, doctor named in lawsuit by former ward

See also:
Undrafted Medical Certificate

France is Released

Mother and Daughter File Suit

An Alleged Kidnapping

Rita Hunter is a registered with National Guardianship Association

Attorney Ordered to Repay

Attorney Emani Taylor apparently was hoping to get $853,000 for three years of work as a guardian for a former New York judge.

Instead, the New York lawyer got a lecture on legal ethics from Acting Supreme Court Justice Michael Ambrosio and a $403,000 surcharge for improper payments she had earlier made to herself from selling real estate owned by former Civil Court Judge John Phillips.

About half of the $403,000 involved a $197,000 payment that Taylor admittedly made to herself while serving as Phillips' guardian from nearly $700,000 in proceeds from the sale of real estate owned by Philips.

Taylor was also ordered to repay a $52,000 brokerage commission that she paid herself in the sale of the property that brought in the $700,000, as well as another $120,000 that she spent repairing a different Phillips property.

Full Article and Source:
No $853K Guardian Payday for N.Y. Lawyer; Also Hit With $403K Surcharge

Taylor was suspended late last year from the practice of law by the Appellate Division, 1st Department

See also:
The Kung-Fu Judge

Break The Silence Campaign

Governor Rod R. Blagojevich launched the fourth annual statewide "Break the Silence" campaign and proclaimed July as Elder Abuse Awareness Month in Illinois.

The full text of the Governor's proclamation follows:

WHEREAS, according to the Illinois Department on Aging, between four and five percent of persons in the United States, aged sixty and older are subject to some form of mistreatment or abuse, including physical, emotional, and sexual abuse, as well as financial exploitation and neglect of basic care needs; and

WHEREAS, Illinois has approximately two million citizens over the age of sixty, meaning that as many as 80,000 Illinois seniors could currently be suffering from some form of abuse; and

WHEREAS, it is the mission of the Illinois Department on Aging and its network of service providers to increase public awareness of this plight against our most vulnerable elderly; and to promote increased reporting of elder abuse; and

WHEREAS, it is essential that the citizens of Illinois recognize the signs of abuse, neglect and exploitation and report suspicions of abuse; and

WHEREAS, it is imperative that each community in Illinois refuses to tolerate this offense against our older citizens by creating greater awareness of the prevalence and severity of elder abuse in hopes of eradicating it from society:

THEREFORE, I, Rod R. Blagojevich, Governor of the State of Illinois, do hereby proclaim July 2008 as ELDER ABUSE AWARENESS MONTH in Illinois, and encourage all citizens to recognize this crisis and join in working toward its prevention.

The "Break the Silence" campaign includes outreach efforts such as billboards and mass-transit advertisements, public service announcements and senior community fairs to increase awareness and visibility of this important issue.

More Information:
Gov. Blagojevich launches "Break the Silence" Campaign to increase awareness about Elder Abuse - Proclaims July Elder Abuse Awareness Month in Illinois

Wednesday, July 2, 2008

Saving Katia

Adopting orphans from foreign countries comes with risk, but Kathie Seidel was willing to roll the dice. She was hurting. She wanted to be a mother again. For more than 20 years she had showered love on her only child, Brian, and his accidental death in 1989 had sent her reeling.

“Everything in my life was an adventure with Brian,” she said. “He was such a joy, and I wanted to have that again. Parenting was the best thing I ever did with my life.”

Unable to bear more children, she decided to become an adoptive mother. At 40 and single, she wasn’t the preferred candidate for American adoption agencies, so she looked overseas. Her first adopted child came from Russia in 1993. Four-year-old Greg arrived with problems and charms. Hyperactive and diagnosed with attention deficit disorder, he was also intelligent, sweet, and loving. Seidel was crazy about him; he adapted well to his new home, and they quickly bonded.

But this time around, she decided against raising an only child. Greg would get a sibling. The two adoptions together would cost $32,000, but Seidel’s career in computer software sales was thriving, and she could afford it. She chose a girl who had lived the first eight years of her life in a Russian orphanage.

On the outside, Katia was slender, pretty, and dark-eyed. On the inside, she was a time bomb.

“Katia came, and all hell broke loose,” Seidel said.

The girl bullied her new brother. She was autistic and slow to develop. Epileptic seizures appeared to have caused mild brain damage. And she was later diagnosed with attachment disorder, a behavioral problem associated with neglected or abused infants who miss out on being held, rocked, baby-talked, nourished, and otherwise loved in their first 18 months. These children have difficulty bonding with adoptive families and can exhibit destructive outbursts, known as rages, along with other socially awkward behaviors, including cruelty to siblings and pets, lying, and food hoarding, and often have difficulty establishing relationships with peers.

Seidel soon realized the girl was going to demand much of her time and resources, but she was up for the challenge. An award-winning volunteer at social service agencies, she’d earned a master’s degree in special education and had taught emotionally disturbed students for years.

“Katia came to the right place when she came to me,” Seidel said.
As it turns out, knowledge, experience, love, and determination don’t guarantee rosy outcomes. Seidel’s life turned upside-down. These days, she finds herself frazzled, heartsore, and broke.

“My retirement money has been wiped out,” she said.

While Katia’s condition certainly played a role in those problems, Seidel said her biggest obstacle has been overcoming what she and others call a fractured, underfunded, overwhelmed, and vindictive system that is supposed to provide services to people with cognitive disabilities in Texas. She’s spent thousands of dollars on attorneys trying to fight court and government actions that have replaced her as Katia’s legal guardian and moved the girl to a succession of institutions and group homes.

“If you buck the system, they put your kid in an institution,” Seidel said.

Local officials hesitate to discuss Katia’s case, citing confidentiality issues, but they say Seidel wasn’t cooperative and that the girl is doing better after being removed from her home.

Tarrant County’s guardianship system, which deals with children, the elderly, and those not mentally capable of representing themselves, is considered among the state’s best. But the staff is overseeing 1,300 guardianship cases with limited resources, and some clients can be volatile. Robert Gieb, an attorney appointed to represent Katia, described Seidel as likely to torpedo most situations.

Full Article and Source:
Saving Katia

Estates Depleted by Fees

The Court of Appeals ruled that the attorneys’ fees provision of the of the Elder Abuse Act - CA., does not authorize the award of trustee fees as costs.

The court overturned an award of more than $500,000 in fees to the trustee of the Lawson Family Trust for services rendered in connection with a challenge to the manner in which Cheryl Lawson obtained her elderly parents’ signatures on a quitclaim deed that transferred an undivided one-half interest in a Santa Barbara residence to her.

The court also overturned the remainder of the judgment, awarding the trust and the parents’ conservator nearly $700,000 in damages and awarding their attorneys more than $1 million in fees, on the ground that the trial judge had abused his discretion by denying Cheryl Lawson a continuance.

The jurist wrote:

“The fees here have raised the shameful specter of the horrendous case of Jarndyce v. Jarndyce in Charles Dickens’s Bleak House, where because of protracted delays...the corpus of the estates were depleted by court costs and legal fees.”

The case is Sanders v. Lawson, B185999

Full Article and Source:
Trustees’ Fees Not Recoverable Under Elder Abuse Act

See also:
Bleak House by Charles Dickens

Present Court System

NASGA Poll Results

Tuesday, July 1, 2008

Woman's Wishes or Undue Influence?

Nick Stagliano Jr., a veteran criminal investigator for the Orange County District Attorney's Office, investigated Mabel Waingrow's complaints about thievery but they were unfounded. He remained friendly with Waingrow after the investigation ended. He started running errands for her, cut her grass and helped her around the house, changing her sheets and assisting her in the bathroom.

In 2001, she wrote a will that made Stagliano the sole beneficiary of her $990,000 estate. Shortly afterward, a court named Stagliano as Waingrow's legal guardian because she couldn't take of her own affairs.

Leilani Zutrau, a great-niece of Mabel Waingrow, says that she and her four siblings never knew their great-aunt because they lived abroad as they were growing up. Zutrau says she only became aware of Waingrow's existence when a lawyer who was preparing a will for her in 2000 came across her great-nieces and -nephews, who are scattered from Massachusetts to Long Island. Zutrau, who lives in Mineola, says that she never received notice of the court proceeding in 2001 that resulted in Nick Stagliano being named Waingrow's guardian.

Five years after Waingrow's death, Stagliano's motives and his right to inherit her estate are being challenged in Orange County Surrogate Court. Waingrow's will is being contested by her five great-nieces and -nephews.

Full Article and Source:
'Routine' will case gets sticky - Family says investigator's tactics shady

Financial Steps for Caregivers

Financial Steps for Caregivers:
What You Need to Know About Money and Retirement

Financial Steps for Caregivers is aimed at average workers who are family caregivers full or part-time. The publication helps caregivers begin to think about their own retirement and to take steps to take control of their financial futures and is designed to help you identify financial decisions you may face as a caregiver.

This decision can affect both your short-term and long-term financial security, including your own retirement.

Download a PDF copy of the booklet HERE

To order a copy, contact WISER at:
Women's Institute for a Secure Retirement
1146 19th Street NW, Suite 700
Washington DC 20036

Women’s Institute for a Secure Retirement - Financial Steps for Caregivers

Monday, June 30, 2008

In Memoriam - "Speck" JP Manire

We lost Speck (JP) Sunday morning at 9:16. His breathing got more and more shallow, and his breaths farther and farther apart. He only had morphine 4 times since they admitted him, a week ago last Wed. He passed with no pain, although you could tell that he was have a hard time breathing. I hate that we have only gotten to see him 6 times in the last 4 years, but this last week and a half we got to spend night and day with him.
For this I am thankful.

What Happened to Freedom?

Comfy Care

Federal Suit Dismissed

Dr. Robert Sarhan, on behalf of himself and his mother, Yvonne Sarhan, filed suit in Miami's U.S. District Court against probate judge Arthur Rothenberg, alleging that his mother's constitutional rights had been violated when Judge Rothenberg adjudicated his mother incapacitated and appointed her a guardian.

Dr. Sarhan's federal claim sought $100 million in punitive damages.
Sarhan v. Rothenberg

No, you can't re-litigate your guardianship case in federal court.

Under the probate-exception to federal jurisdiction, a U.S. District Court is precluded from adjudicating disputes having to do with property that is in the custody of a state probate court. Marshall v. Marshall

Federal suit by disgruntled litigant against Miami probate judge Arthur Rothenberg dismissed

See also:
Plea For Justice

Sunday, June 29, 2008

Limiting Access to Court Records

Proposed rules that would shield some court records from public view are headed for the Ohio Supreme Court. The proposal represents the court's attempt to write statewide standards as to what is and is not public court record and to map the process judges must follow in deciding when to shield information.

The process began six years ago addressing identify theft concerns stemming from making court records available on the Internet. But the proposal goes beyond preventing online surfers from seeing Social Security and bank account numbers. They would also place other records, such as juvenile and probate cases, off limits both in courthouses and on the Internet.

Under the rules, a party to a case or anyone mentioned in it could request that part or all of the record be hidden. The court must notify all parties in the case, but the rules do not mandate that the judge hold a hearing.

The full seven-justice court could consider the proposed rules as soon as August.

Full Article and Source:
Rules limiting access to court records debated