Saturday, October 2, 2010

Editorial: Impeach This Judge

How badly does a Connecticut probate judge have to misbehave before the Council on Probate Judicial Conduct really lowers the boom?

As outrageous as his conduct was, as destructive as it was to the public's trust in the probate system, Southington Probate Judge Bryan Meccariello last week was only censured by a weak-kneed Council on Probate Judicial conduct.

Judge Meccariello deserved harsher discipline for his mishandling of the estate of Josephine Smoron. He deserved the ultimate that the council could hand down — a recommendation for impeachment.

The judge should resign his office immediately or face impeachment by the General Assembly — unless the voters in the newly combined Southington-Cheshire probate district throw him out in the Nov. 2 election.

And if state prosecutors aren't looking for possible criminal conduct on the part of one or more people involved in the virtual hijacking of the Smoron estate, they should.

This is a frightening story.

Full Article and Source:
Impeach This Probate Judge

Public Guardian Suing In Behalf of Mentally Disabled Man

A mentally disabled man lost his life savings when a friend of his late mother's took control of his finances and bilked him of tens of thousands of dollars, Cook County authorities alleged Wednesday.

When that friend died, his son continued the scheme, stealing hundreds of thousands of dollars more for gambling and other expenses, according to the sheriff's office and a lawsuit.

Ernest R. Rokosik, 40, of Chicago, was charged with one count each of senior exploitation and theft of more than $100,000, authorities said. Bond was set at $250,000.

Sheriff's officials said that after his mother died in 1998, the 63-year-old victim — said to have the mental capacity of a child — inherited about $600,000, including money he had earned working 26 years in the mailroom of a finance company and held by his mother for safekeeping.

According to the sheriff, Rokosik's father — identified in court records as Ernest W. Rokosik, a Chicago police officer who was said to be a trusted friend of the victim's mother — later obtained power of attorney over the victim and regularly withdrew money from his bank account without his authorization.

After the elder Rokosik's death, his son then persuaded the victim to let him assume the same control over his finances, the sheriff alleged.

The two drained the victim's bank account of more than half a million dollars in less than a decade, according to the sheriff's office.

The lawsuit, filed by the Cook County public guardian on behalf of the victim, showed the victim lived in a "very austere fashion" on just $850 a month.

Full Article and Source:
Chicago Father and Son Accused of Depleting Disabled Man's Savings

Ohio Lawyer Kenneth N. Shaw Suspended

A Warren attorney has been suspended for up to two years for professional misconduct.

According to a statement issued Thursday, the Supreme Court of Ohio suspended Kenneth N. Shaw's law license for two years, with the second year of that term stayed on conditions. The Court said Shaw displayed professional misconduct in his handling of legal matters for two sets of clients. He also failed to cooperate with authorities investigating the complaints against him, the Court said.

In a 6-1 per curium opinion announced Thursday, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that Shaw obtained and then defaulted on a $13,000 personal loan from an elderly client of his law practice, then drew up a trust agreement for the same client that named Shaw's five children as beneficiaries. This action violated the conflict of interest rules.

The Court also found that in a separate case, Shaw collected legal fees from two clients for whom he had prepared a guardianship application without first obtaining the approval of the local probate court. Shaw was found by the probate court to have engaged in concealment of assets in the case, and ordered to refund $1,200 of the legal fees he had improperly collected from those clients.

Full Article and Source:
Warren Attorney Suspended by State Supreme Court

Friday, October 1, 2010

From the archives: Guardians of the Elderly – An Ailing System - Part I

Guardians of the Elderly: An Ailing System Part I: Declared ‘Legally Dead’ by a Troubled System

Undated (AP) _ The nation’s guardianship system, a crucial last line of protection for the ailing elderly, is failing many of those it is designed to protect.

A year-long investigation by The Associated Press of courts in all 50 states and the District of Columbia found a dangerously burdened and troubled system that regularly puts elderly lives in the hands of others with little or no evidence of necessity, then fails to guard against abuse, theft and neglect.

In thousands of courts around the nation every week, a few minutes of routine and the stroke of a judge’s pen are all that it takes to strip an old man or woman of basic rights.

The 300,000 to 400,000 elderly people under guardianship can no longer receive money or pay their bills. They cannot marry or divorce. The court entrusts to someone else the power to choose where they will live, what medical treatment they will get, and, in rare cases, when they will die.

The AP investigation examined more than 2,200 randomly selected guardianship court files to get a portrait of wards and of the system that oversees them.

After giving guardians such great power over elderly people, overworked and understaffed court systems frequently break down, abandoning those incapable of caring for themselves, the AP found.

A legal tool meant to protect the elderly and their property, guardianship sometimes results instead in financial or physical mistreatment, the AP found.

″Guardianship is a process that uproots people, literally ‘unpersons’ them, declares them legally dead,″ said Dr. Dennis Koson, a law and psychiatry expert in Florida. ″Done badly, it does more hurting than protecting.″

That danger was confirmed by the AP investigation, which involved staff reporters in every state. The AP found:

- Elderly in guardianship court are often afforded fewer rights than criminal defendants. In 44 percent of the cases, the proposed ward was not represented by an attorney. Three out of 10 files contained no medical evidence. Forty-nine percent of the wards were not present at their hearings. Twenty-five percent of the files contained no indication hearings had been held.

Some elderly people discover they are wards of the court only after the fact.

A Bennington, Vt., woman learned she was under guardianship only when told by her nursing home she could no longer spend money without the permission of the guardian, her daughter. A Fort Lauderdale, Fla., woman found she had a guardian only when she was turned away from the polling booth.

″Guardianship became a rubber-stamp procedure over the years,″ said Indianapolis Probate Judge Victor Pfau, a leader in a judicial reform movement.

- While laws in 44 states require guardians to file regular accountings of the ward’s money, they were missing or incomplete in 48 percent of the files examined. Thirteen percent, more than one in 10, of the files were empty but for the initial granting of guardianship powers.

Such files are critical to the court’s knowledge that wards are being cared for and that their money is being spent properly. Without the files, the door is open to abuse.

So a court in Missoula, Mont., had no record of what happened to the $131,000 estate of a 92-year-old man found ill and alone in a cabin in 1985 after a couple described as ″friends″ became his guardians. And a Pittsburgh court learned of a decade-long misappropriation of $25,000 in Social Security checks only when a state hospital complained of non-payment for a ward’s care. The ward’s guardian, an attorney, was disbarred in 1985.

- What reports are filed are rarely audited or even checked by probate courts, which handle guardianships in most jurisdictions. One of the last rungs on the courthouse ladder, often dealing more with affairs of the dead than of the living, probate courts are swamped. Many can’t even guess how many guardianships they have on file.

″I don’t know where the wards are, who’s caring for them, what they’re doing,″ said Probate Judge Anthony Sciarretta of Providence, R.I. ″I have no support staff, I have no welfare workers, I have no aides, I have no assistants and I have no money.″

In San Diego, judges routinely signed off on annual accountings filed by lawyer Robert Kronemyer for the estate of his ward, Joshua Baily. Not until after Baily’s death did a friend become suspicious. Kronemyer was convicted in 1983 of theft and perjury for taking hundreds of thousands of dollars in cash and bonds.

Most guardians are dedicated, caring people who see that their wards get proper food, clothing, shelter and medical attention. A good guardian can protect against greedy relatives and scheming con men.

Yet if the nation’s elderly population jumps 22 percent by century’s end, to nearly 35 million, as projected, the problems of guardianship are likely to grow.

While guardianship procedures vary, even from county to county, the laws follow a pattern: A petition is filed, usually by a family member, alleging a person is incompetent and no longer able to care for himself or herself. The person is evaluated, and the court rules on the petition.

If granted, guardianship reduces these ″wards of the court″ to the status of legal infants who may no longer drive a car, vote or, in many states, hire an attorney. ″A prisoner has more legal rights,″ said Winsor Schmidt, a Memphis State University professor who has studied guardianship in 13 states.

- Once shuffled into guardianship, the elderly have few ways out. Some states bar wards from hiring attorneys because they have been ruled incompetent. Twenty-four states require courts to regularly check the status of the wards. Some judges are reluctant to reopen cases to remove guardianships.

In Grand Junction, Colo., Vivian Steiner, 68, has written to the judge who placed her under guardianship, contending she has recovered from medical difficulties and can leave the nursing home where she is confined. Pitkin County District Judge J.E. DeVilbiss hasn’t answered her, standing by his 1984 ruling that she is incompetent.

″The guardianship is done and it’s done unless someone calls it to the court’s attention,″ DeVilbiss said.

The AP found institutions are increasingly using guardianship as an answer to a variety of problems. Hospitals, faced with new Medicare regulations limiting coverage for extended care, use guardianship to move patients to nursing homes. Nursing homes require guardianship to ensure someone will pay the bills.

But critics challenge using such a harsh remedy to guarantee payments.

″You don’t need someone to strip you to the rights of a 5-year-old to check you into a nursing home,″ said David Grant, director of the Guardianship Diversion Project, a Los Angeles group promoting less restrictive alternatives for the elderly.

Baltimore courts now use an expedited procedure that allows hospitals to file petitions of guardianship on elderly patients, then move them to nursing homes before the petitions are approved.

While the hospitals and the courts say this is simply an efficient way of handling patients, Jerry Dresner, an attorney with the Maryland Disability Law Center, calls it ″after-the-fact due process.″

Nursing homes, hospitals and doctors are also using guardianship as a hedge against liability in tough decisions such as amputations and disconnecting life support systems.

″If I ran a nursing home, I’d insist on it,″ said Pat Graves, a social worker who runs a senior citizens program at an Albuquerque, N.M., hospital.

Federally mandated adult protective services programs in each state have created a cadre of social workers vigorously checking reports of abuse, ″self-neglect″ and irrational behavior among the elderly. But their eagerness sometimes leads them to file guardianship petitions on old people who simply may be having trouble keeping house or keeping track of bills.

″The whole problem with guardianship as it is practiced today is that they take someone who’s got a bit of a problem and put them away,″ said Theresa Bertram, director of the Cathedral Foundation, a Jacksonville, Fla., charity offering support services to try to keep the elderly out of guardianship.

As America ages, the system faces change. Medical advances have led to longer lives - and more cases of incompetence. As social services are pushed to the breaking point, many turn to guardianship. The AP has even found petitions for guardianship in AIDS cases filtering into probate court.

To be sure, most guardians are honest and well-intentioned. Many judges defend the present system as humane and effective, arguing that guardianship is a family business and not in need of outside supervision.

But guardians are not always family members. The AP found one-quarter of today’s guardians are friends, attorneys, professional guardians or government agencies with no familial relationship to their wards.

A new industry has cropped up of professional guardians, who bill their wards’ estates as much as $65 an hour for their services. The AP has found such entrepreneurs with responsibility for 100, 300, and in one case 400 wards.

″I could start a business, put people on computer, and business would be booming,″ said Seattle lawyer Kathleen Moore, who works part-time as guardian for seven elderly wards.

Those who can’t pay are herded into a growing number of state or county public guardianship offices, with caseloads reaching several hundred per social worker.

Guardianship’s problems have led to some reform attempts in recent years.

California has overhauled its statutes on guardianship, which for adults is called conservatorship. In 1981, the state began funding probate court investigators who now regularly examine guardianship petitions and check up on guardians. State funds also pay probate attorneys to review accountings and other filings.

″The Legislature was of the opinion that maybe a lot of people under conservatorship didn’t need to be,″ said Timothy A. Whitehouse, assistant supervising probate attorney in Los Angeles.

Last year, a meeting of probate judges sponsored by the American Bar Association and the National Judicial College drafted a list of reforms, including recommendations that would require due process rights for the proposed ward and closer monitoring of guardianships by the courts.

Others look to alternatives. Federal funds support the Guardianship Diversion Project, which promotes programs to pay bills and manage money for the elderly without going to the extreme of guardianship.

″Guardianship is an important, useful service that is inappropriate to almost everybody,″ said Grant. ″There’s going to be a difficult period in which people learn that guardianship just doesn’t work.″

For whatever reason the guardianship petition is brought, it moves speedily through overtaxed courts that often sidestep the civil rights safeguards so zealously protected in other types of courtrooms.

When held, guardianship hearings sometimes last only minutes. Medical investigators and court-appointed examiners often perform perfunctory checks of proposed wards to see if guardianship is needed.

Richard Shamel, a Deerfield Beach, Fla., attorney who specializes in guardianship, said it takes him 10 to 15 minutes to determine if someone needs a guardian. ″About half of those you see, they’re just staring at the ceiling,″ he said.

Competency examinations, when they are done, are performed by people with varying degrees of expertise, including urologists, osteopaths, social workers, nursing home employees and retired court clerks. Their decisions may be based on such tests as the proposed ward’s ability to recall the names of the last three presidents or perform simple math problems.

The criteria used by these investigators are often sketchy. People can be placed under guardianship because they are alcoholics or diabetics. Often, in the eyes of the court, being old and spending money foolishly is enough.

″You’ve got a fundamental issue of human rights involved here,″ said Barry Lebowitz, who heads research on aging for the National Institute of Mental Health. ″People are protected in their right to make foolish choices.″

Whatever the criteria, and whoever is making the judgment, in 94 percent of cases examined by the AP the petition for guardianship was approved.

″The system is just completely weighted against the proposed ward,″ said Elise Donnelly, who studied guardianship in North Dakota for the state Department of Human Services. ″Once the petition is brought, you have to go in and prove you’re not incompetent.″

Said Judge Pfau from Indianapolis: ″The attorney (for the guardian) wants the judge to just sign his name. He doesn’t want notice (to the proposed ward), he doesn’t want a 14-day wait, or a visitors program.″ 

But the pressure to approve guardianships is strong. ″If I’m too tough on attorneys, I’m not going to get elected again,″ Pfau said, ″and that might sound cowardly to say that.″

Many judges feel more court oversight would intrude on what they see as a family affair. Guardianship is generally there, they say, to help sons and daughters care for their parents.

″My personal feeling is it’s a family responsibility. Families take better care of people than government,″ said probate Judge Melvin Rueger of Cincinnati. ″Everyone presupposes that a son or daughter abuses a mother or dad and I just don’t believe it.″

Yet the AP’s investigation found example after example of relatives dipping into the ward’s money for their own use. In most cases, the courts give tacit approval.

In Seattle, two nephews of a wealthy elderly woman now living in a nursing home have been paying themselves $800 monthly salaries for guardianship, plus cars, travel and gifts of $20,000. The court has approved the expenditures.

In Arkansas, a woman who was named guardian for her father-in-law in 1981 charged expenses that included $50 for one hour’s work on ″preparation for arrangements″ for the man’s burial, another $50 for an hour’s work relaying word of the man’s death to relatives and $71 for mileage to the out-of-town funeral.

In Oklahoma, a state agency discovered that a woman’s former husband had himself appointed her guardian, discontinued his alimony payments to her, collected her Social Security payments then left the state.

San Diego Superior Court Judge Paul Overton recalls a case where a son took his mother, also his ward, to Thanksgiving dinner at a relative’s home.

″He charged her for mileage for coming and going, and charged her $8 and something for the dinner,″ Overton said. ″One thing that really touches my heart, or I should say touches the seat of my pants, is to see a child charging to take care of a parent.″

Whether children or strangers are the guardians, the end result for many wards is removal from their homes and confinement to nursing centers, the AP found. More than one-third of the wards seen in case files lived in their own homes before guardianship; about the same number was moved sometime during guardianship. Almost two-thirds of the wards lived in nursing homes at some time during guardianship.

For the guardian, a nursing home generally offers the easiest and most efficient way to care for the ward. Often wards are near death and round-the- clock care in an institution is needed. But sometimes it’s overused.

″If you run a person through the guardian door into a nursing home,″ said Jim Wade, a former probate judge in Denver who has returned to private law practice, ″the deprivation of rights is complete,″
Next: Due Process - Do Wards Get Their Day in Court?

Full Article & Source: 
From the archives:  Guardians of the Elderly – An Ailing System - Part I

From the archives: Guardians of the Elderly – An Ailing System - Part II

FORT LAUDERDALE, Fla. (AP) _ Billie sat at the table, trying to joke with the social workers and lawyers sitting around her. ″Are you talking about me?″ she asked the strangers who said they were there to help.

The man beside her, her lawyer she was told, softly explained she needed a guardian, someone who would handle the everyday worries.

If a person is a fool, let this person and his goods be under the protection of his family or his paternal relatives, if he is not under the care of anyone else.

- Twelve Tables of Rome, 449 B.C.

″Does this mean I won’t be able to go back to where I live?″ the 74-year- old woman asked. ″I still want to get out and take care of my house and do shopping. I feel well enough to be on my own.″

Despite her doubts, Billie was declared incompetent and assigned a guardian: another stranger who would control her life, from where she would live to how her money would be spent. It took only a few minutes.

The informal judicial hearing witnessed by AP reporters in the Fort Lauderdale boarding home was not unusual. An average of 10 people a week are placed under guardianship in this community of retirees. Nationally, 300,000 to 400,000 senior citizens are under guardianship.

What was unusual was that Billie had her ″day in court″ at all.

A year-long investigation by The Associated Press found that senior citizens facing guardianship are often denied courtroom rights considered essential to criminal defendants and those being committed to mental hospitals.

A review of more than 2,200 cases around the country showed 44 percent of the elderly were not represented by attorneys; almost half did not attend their own hearings.

In fact, more than one in four cases had no hearings. And in places such as Cleveland or Charlotte, N.C., a proposed ward may not even get a judge - a court clerk conducts hearings and issues the ruling.

The AP also found laws vague in defining who needs guardianship, lax standards in determining the proposed ward’s medical and psychological status and insensitivity toward the elderly throughout the legal process.

Combined, these factors make it very easy to get a guardianship and hard for the elderly to defend themselves against the process.

″When somebody goes to jail, the court system has bent over backwards with due process. But there is no such thing with a guardian,″ said Ina Katich, a Denver expert on law and the elderly.

But the process of placing someone under guardianship is not just a question of legal rights. It involves issues of medicine, psychiatry, geriatrics and, importantly, society’s attitudes toward the elderly.

D’Jean Testa, a Legal Services attorney in Phoenix, recounts story after story of people who faced guardianship because their actions did not fit what society expects of older people.

In one case, a daughter sought guardianship for her mother because the elderly woman wanted to buy a camper and tour the country with a male friend. In another, a son sought guardianship to stop his father’s plans to remarry.

″If you’re old, you can’t be foolish,″ said Ms. Testa.

This bias is reflected in the wording of guardianship law and the way courts handle their wards.

Guardianship is granted when a court believes a person is incompetent: unable to handle his affairs or care for herself. But a survey by the American Bar Association found that in 25 states ″advanced age″ is enough cause to find someone incompetent. Other reasons are equally vague, from ″improvidence″ in Ohio to ″spendthrift″ in Massachusetts and ″habitual drunkard″ in several states.

″Advanced age just isn’t a good enough reason to appoint a guardian,″ said Gwen Bedford, a national director of the American Association of Retired Persons. ″You’ve got to tell the difference between someone who is just eccentric and someone who really is incapacitated.″

Advanced age was given as the reason for incompetence in 8 percent of the cases the AP studied.

While the competency of the elderly comes under close scrutiny, little is done to tailor the legal process to their special needs and problems.

Notices of guardianship petitions are often printed in hard-to-read legalese. For example, old people facing guardianship in Texas receive this notice calling them to court:

″... at or before 10 a.m. of the Monday next after the expiration of 10 days after the date of service of this citation by filing a written answer to the application of (petitioner) filed in said court on the (date) alleging said ward has no guardian and praying for the appointment of the person and estate of said ward. At said above mentioned time and place, said ward and all other persons may contest said application if they so desire.″

Such warnings, sent by mail or delivered by sheriff’s deputies with no other explanation, do little to inform senior citizens of their rights or the implications of guardianship.

Only 14 states specifically require that the elderly be informed of their rights and what freedoms they would lose under guardianship.

″People have the right to defend themselves and people need to know that,″ said Paul Wharton, an attorney with the Utah Legal Services Senior Law Center. ″What really ought to be considered is providing notice, like a Miranda warning. We give criminals warning, why not our parents?″

While the proposed ward’s medical status is the basis for determining incompetence, at least 11 states require no medical evidence other than the allegations of the petitioner. In fact, 34 percent of the cases examined nationwide by the AP showed no medical evidence supporting petitioners’ claims; in 16 percent, the only evidence came from the petitioners.

Tod Porterfield, an 83-year-old Albion, Ind., farmer was placed under guardianship and forced into a nursing home on the strength of a petition saying he suffered from Alzheimer’s disease. It was later discovered the allegation came from a social worker at a hospital where Porterfield was treated for stomach problems.

″No doctor ever diagnosed me,″ said Porterfield, who eventually had the guardianship overturned. ″I never talked to a doctor or an officer of the court.″

In some states, a simple note or fill-in-the-blank form from a family physician is enough: a Woonsocket, R.I., woman was placed under guardianship on the strength of a scrawled doctor’s note that read, ″She is incompitent (sic) in signing or managing her check.″

Courts in 11 states appoint visitors to examine the ward and report back to the judge. The skill of these visitors and the detail of their reports vary widely.

In California, trained court employees have a checklist of questions they must answer for the court. In Oregon, the AP found instances where the visitor was the secretary for the attorney bringing the petition. A special master in Phoenix said he appointed visitors recommended by the petitioner.

Few states define what doctors or visitors should look for or how they should conduct their examinations. Many diagnoses fail to explore whether the condition is temporary or chronic. In many cases the examining doctors are unfamiliar with the proposed ward’s medical history or what medication they are taking. Some doctors base their decision on non-medical determinations.

″Really, what is most important to me is whether the person could be victimized, whether the guardian will help the person,″ said Dr. Cesar Hernandez, a psychiatrist who performs examinations for the Broward County, Fla., courts.

Hernandez also considers the condition of the person’s home and his appearance.

″You talk to the person,″ he said. ″You see if they are well-groomed, overweight, underweight, antagonistic, depressed. Can they make good conversation?″

Case files reveal brief, often perfunctory medical examinations with even briefer diagnoses: ″forgetful,″ ″diabetes″ and others.

Medical experts note that because the elderly are sensitive to changes in medication, they may seem to be foundering when the condition is actually reversible. A simple vitamin deficency can cause temporary memory lapses.

″What some doctors want to do is have some sort of cookbook form where they could diagnose the patient in five or 10 minutes,″ said Dr. George Grossberg, director of geriatric psychiatry at St. Louis University School of Medicine who is studying guardianship examinations for the National Institute of Mental Health.

During examinations, some doctors assume the role of inquisitor, and elderly patients may react nervously, Grossberg said. ″It’s easy to jump to conclusions when you push people.″

As terrifying as the legal process can be, only 28 states mandate legal representation for people facing guardianship; 12 leave it optional, and 10 require no representation.

Other studies made similar conclusions to the AP’s finding. A look at Los Angeles courts by the National Senior Citizen Law Center found that 96 percent of proposed wards are not represented.

On the other hand the person seeking to become a guardian is nearly always represented by an attorney whose fee, along with that for the proposed ward’s court-appointed attorney, is charged to the elderly person.

″It’s ironic the very person that should be represented at the hearings is not represented by counsel,″ said Paul Zaverella, a Pittsburgh judge.

But when attorneys are appointed, sometimes picked from a courthouse list and paid a limited fee, they often serve only as rubber stamps.

In Fort Lauderdale, court-appointed attorneys receive $125 to conduct a brief interview. The attorneys often waive the entire hearing process when they believe guardianship is best for the person.

″You just talk to them at great lengths for five to 10 minutes and you can tell if they’re competent or not,″ said Victor DeBianchi Jr., a Hollywood, Fla., attorney assigned by the court to represent Billie.

One Fort Lauderdale file contained a medical examination saying an elderly woman was more coherent in the morning than in the evening. Yet the attorney appointed to represent the woman interviewed her at 7:20 p.m., found her incoherent, waived the hearing and, in effect, made the judge’s decision.

Dr. Dennis Koson, a forensic psychiatrist, looked at 200 guardianship cases in the Broward County, Fla., court system as an associate law professor at Nova University. He found that court-appointed attorneys told judges hearings would not be necessary 90 percent of the time.

In 44 percent of the cases, the proposed ward’s attorney served a dual role as a member of the examining committee called upon to determine the person’s competency.

″That was shocking,″ said Koson. ″Their own attorney was making the determination.″

Attorneys in Fort Lauderdale were waiving clients’ rights so often that the state appeals court this summer ruled that hearings must be held in all guardianship cases.

″What the decision says is that an attorney cannot give away a client’s rights, something that was done regularly,″ said Nancy Trease, the Legal Aid attorney who brought the suit that led to the ruling.

Attorneys who want to help clients trying to fight guardianship often find themselves at odds with judges who believe lawyers should do what they think best for the proposed ward.

″The judge wants to know what you’re doing in his courtroom wasting time,″ said Steve Feldman, a Philadelphia lawyer.

Judge Francis Christie, a Miami probate judge, sees no need for an attorney’s advocacy if it is clear the proposed ward needs help.

″I have told the attorneys that they should not formulate and adopt the Clarence Darrow philosophy,″ he said. ″If a person is incompetent they should have a guardian. That should be obvious to the attorney once they meet the client.″

Casual attitudes toward the rights of the elderly are repeatedly reflected in guardianship case files. In Mississippi, the AP found a case in which Lenore Prather, now a state Supreme Court justice, had presided over a guardianship case, her husband had served as the petitioner’s attorney, and the proposed ward was also a relative.

When asked about the case, Prather acknowledged she should have followed state bar association ethics guidelines and noted the family ties in the court record.

″It was a family situation where there was no contest,″ Prather said.

Many of these factors were at work when two attorneys, two social workers and a probate master, an attorney deputized to serve as a judge, held the hearing to determine Billie’s competency.

The hearing came about only because one psychiatrist on the three-person examining committee found her competent. DeBianchi, Billie’s attorney, originally waived the hearing, telling the court his client was ″arrogant″ and ″in my lay opinion she appeared to be in the beginning-to-middle stages of Alzheimer’s disease.″

″She can fool you at the beginning, but after a while you can tell she’s incompetent,″ he said.

Billie was asked a series of questions to test her competency. Bright and quick-witted in conversation, she faltered when asked if she owned her home. She could not remember the name of her bank or the names of the last several presidents.

After a few more casual questions, the special master ruled Billie incompetent and assigned Nathan Sobel, a retired man with several other wards, as her guardian. The court has had no further contact beyond paperwork. She remains in the boarding home, still hoping to return to her small apartment.

Sobel said a return is not likely.

″In talking with the social workers, they don’t think she is on the way to recovery,″ said Sobel. ″Right now she’s being well taken care of and that’s the most important thing.″

NEXT: How Courts Fail to Guard Against Guardian Abuse

Full Article & Source:
From the archives:  Guardians of the Elderly – An Ailing System - Part II

From the archives: Guardians of the Elderly – An Ailing System - Part IV

---- (AP) _ Five social workers in the public guardian’s office here control the lives of 1,000 elderly people. The office also controls $200 million in assets and has run a hardware store, a plant nursery and an oil drilling operation owned by its wards.

It is the largest and one of the oldest public guardianship offices in the country, and its critics say it now turns away cases and favors monied wards over the indigent.

Both criticisms are true to some extent, the public guardian says. His office is swamped, and his budget is constantly under threat.

″We don’t want any more. We have too many,″ said Gordon Treharne, the Los Angeles public guardian. ″Everyone thinks we should expand and we’re not. We’re retrenching.″

And it’s happening all across the country.

Faced with a crush of elderly who either outlive their money or live far from family, states are setting up - and loading up - public guardians as a catchall for those who have no one else.

While numbers remain unclear, an Associated Press study of more than 2,200 guardianship cases around the country shows that 2.3 percent of the 300,000 to 400,000 people under guardianship may be wards of public guardians.

The public guardians take direct control of the lives of old people and make the decisions any guardian makes - where the ward will live, whether to pull the plug on life-support systems, how much money is spent on groceries.

″Public guardianship is brand-new by government definitions,″ said James Scannell, the public guardian in San Francisco. ″We’re in our infancy. We’re really just evolving now to meet the needs of the community.″

Meeting those needs is becoming increasingly difficult. In Phoenix, caseworkers have time to visit their wards only four times a year. Tennessee’s new public guardian’s office took in 37 people in the first two months and expects to reach 300 in the first year.

Thirty-two states have some form of public guardianship, and almost all are finding big problems that are getting worse.

Some public guardians have been indicted, others criticized for neglecting wards or ″warehousing″ them in nursing homes.

In California, a grand jury blamed the Santa Clara County public guardian’s office for the 1985 starvation death of 79-year-old John Nagle. The office hadn’t seen the ward in two years. The grand jury’s report helped establish new guidelines for the office.

The public guardian for Du Page County, Ill., pleaded guilty to charges of official misconduct and theft last year after he was accused of investing wards’ money for his own benefit. He was ordered to repay $12,600.

John M. Hartman, a former Bay County, Mich., public guardian, admitted in 1985 that he embezzled $129,506 from some of his 75 wards. He was sentenced to five years in prison.

Las Vegas’ public guardian, Jared Shafer, has drawn fire for making real estate investments with partners in the law firm he chose to handle most of his office’s business.

In North Dakota, wards are placed in the hands of part-time public administrators, appointed officials with no training, staff or money to care for their charges. In one case, a public administrator put two wards in the care of a friend who charged each estate $2,000 a month for room and board.

″When you don’t have the appropriate staff, you get into these binds,″ said Verdine Dunham, president of the California Association of Public Administrators. ″Sometimes I wake up in the middle of the night ... (worried) that I haven’t done something that will come back to haunt me.″

Added Phoenix public guardian Dean Trebesch: ″There’s more realization now that the power that goes with guardianship is so awesome and the loss of rights so awesome that we’d better make darn sure we do it right.″

While some social service professionals hail the care and services provided by public guardians, other experts point to the problems of handling so many with so few.

In Phoenix, for example, so many are now under the umbrella of the public guardian that caseworkers handle 75 wards apiece. San Francisco has 315 wards and two caseworkers. Alameda County, Calif., which includes the city of Oakland, has frozen its caseload at 450 with just three caseworkers. Alaska’s six public guardians handle 280 cases. Four guardianship officers in Kentucky have an average case load of 150 each.

In Portland, Ore., five people handle 180 wards with a $180,000 annual budget. ″We’re stretched thin,″ said Jeff Brandon, deputy public guardian. ″There’s probably 500 cases that are not even sent here, because they figure they’ll get a ‘no’ from us.″

In Los Angeles, the case load breaks down to more than 200 wards per worker.

″The reality is with those case loads we’re not getting out there very often,″ Treharne said.

Few guidelines exist for running public guardianship offices, but some experts have suggested limits.

″The public guardian must be adequately staffed and funded to the extent that no office is responsible for more than 500 wards, and each professional in the office is responsible for no more than 30 wards,″ said Winsor Schmidt, a guardianship expert and law professor at Memphis State University.

In its year-long investigation into guardianship of the elderly, the AP found the push to public guardianship is due in part to a lack of private guardians, including family members, willing to take on non-paying or low- paying cases.

Needing someone to authorize medical procedures, guarantee payment, sign hospital discharge papers, pay monthly bills or even recover money lost to swindlers, many agencies and social workers are looking for a place to turn.

One survey obtained by the AP in Massachusetts, where there is no public guardian, showed that 94 percent of the state’s hospitals reported ″experiencing guardianship problems with patients, the largest being the lack of potential guardians.″

Without a public guardianship program the mentally ill, some of them elderly, who have been declared incompetent have no one to speak for them. In Pennsylvania, it is estimated 5,000 to 6,000 mentally ill people have been declared incompetent since 1979, and half have been released from institutions.

″It’s a mess. These people are in no-man’s land. No one is protecting them,″ said Edward Carey, a member of the Pennsylvania bar association’s subcommittee on the elderly and infirmed.
Yet some oppose the idea of public guardianship.

Lawrence Frolik, a law professor at the University of Pittsburgh, sees it as another layer of bureaucracy. ″The last thing you want is a state office whose existence depends upon taking away the rights of others,″ Frolik said.

Terry Roth, a consultant to the Pennsylvania Association of Retarded Citizens, fears a return to institutionalization of the mentally ill.

″As soon as you create a public guardianship, you’re going to have someone filing against every bag lady out there,″ he said.

In some places that do have public guardianship, officials have begun cutting budgets, asking the public guardians to become more self-sufficien t through fees charged to the wards’ accounts.

In Los Angeles, income from fees was supplemented last year with $2.5 million from county tax coffers for a total budget of $9 million. This year the county commissioners cut that $2.5 million to less than $1 million.

In the last nine years, county support has fallen from 67 percent of Treharne’s budget to less than 15 percent. About 85 percent of Treharne’s cases are indigent.

″We do want some big cases (large estates to which fees could be charged) ourselves, but we don’t hustle them,″ he said.

Treharne’s office has been criticized by a public interest group claiming too many people have been moved out of their homes and routed to institutions. Of 1,000 elderly wards (the office is responsible for 2,200 people, half of them mentally ill), only 50 are maintained in their homes.

Florida, which has a huge elderly population, only this year launched pilot public guardianship programs in two counties.

Ten years ago a count by Florida’s Office of Aging and Adult Services found that 2,700 people, 63 percent of them older than 60, needed guardians. About 1,000 of them had already been found incompetent in court. Today the figure is believed to have doubled.

The three-person operation in Fort Lauderdale will fill its 40 spaces by October, its 10th month of operation, public guardian Lisa Goldstein said.

″It took 10 years of resistance and I still get told all the time, ’We don’t need you,‴ Ms. Goldstein said. ″If we don’t get an increase in staff we will not be able to accept people. To me, it would be a crime if the state opened the floodgates and closed them without fully realizing the potential of the problem.″

Public guardians agree that as the population ages, as people live longer and as hospitals and nursing homes require more guardianships, there will be even greater strains on public guardians.

″I think we provide a needed service,″ said Shafer, the Las Vegas public guardian. ″But as our senior population grows, it’s gonna get worse.″

In San Francisco, the public guardian has begun diverting people from guardianship by establishing payment programs and arranging for sales contracts that allow the elderly to remain in their homes until death.

Said Scannell, ″Alternatives to conservatorship (guardianship) is really where the emphasis should be.″

Full Article & Source:
From the archives:  Guardians of the Elderly – An Ailing System - Part IV

Laurie Roberts - What Fiduciaries are Saying About Probate Abuses

Somebody sent me the e-mails going around among fiduciaries across the state, in response to the The Republic’s stories last weekend on abuses in Maricopa County’s probate system.

The e-mails were written under the heading: AFA Membership Call to Action

Having seen that subject line, I was hoping that it would be a call to fix the problems outlined in The Republic’s Sunday package. But that, apparently, isn’t exactly the action the fiduciaries of the state have in mind. Instead, the talk is about hiring a PR expert, somebody who can “use language and events effectively to the benefit of their clients."


Here’s the e-mails going around around yesterday on the Arizona Fiduciaries Association list-serv when they think we can’t hear them. I am taking their names out, but it’s the sentiments expressed that are important – and quite telling, I think.

The string begins with a few words of commiseration from a California colleague:

Dear Arizona Colleagues:
We have been dealing with this nonsense in California since 2000. There were a series of articles in the LA Times which lead to California enacting the Fiduciary Licensing Law SB1550 in 2006. There are a number of factions out there that do not understand the probate law or the courts. They have had some kind of experience, usually when family members have been robbing Mom or Dad blind and get caught, who are quick to criticize and get some newspaper or television reporter to buy into this nonsense. They have personal agendas.

There is a website called It has lists of people that are being targeted. It is total nonsense and I am sure they will be all over this story in short order.

And a reply by someone in the Arizona Fiduciaries Association:

They already are. They have been posting comments to all of the articles with a link to their website. Can you send me a private email with your number? I know I had it but I have since misplaced it and I want to chat with you about how fees work in CA since that is one of the examples being brought up by the committee. Thanks!
Also, for those of you not yet aware, I have been elected to the NGA board of directors. I will be attending the conference this weekend in PA and plan to solicit the assistance of the NGA in managing the press/image issues. So I should have more to report on that at the summit.

Full Article and Source:
Here's What Fiduciaries are Saying About Probate Abuses

Conservator Fought Him, Then Billed Him

For 10 weeks, Matthew Keenan lay in a coma, the victim of a hospital error that plunged him into respiratory arrest and cut off oxygen to his brain. A judge appointed his mother to serve as guardian and conservator for her comatose 37-year-old son. Twice, his father called a priest to perform last rites. Then he awoke.

He had no idea where he was. He could move nothing but his eyelids. Then his fingers.

It was the start of a long, remarkable, some might say miraculous recovery. He learned to use his arms again, to sit up, to feed himself, to use a wheelchair, to regain a brain that survived a nearly fatal injury.

Yet when he rolled into a Boulder courthouse three years ago and petitioned to be free of his guardian, he ignited a legal battle that persists to this day.

The bank chosen to manage his money jumped into the case, allying itself with his guardian. Both billed him for the time they spent challenging him in court.

[H]is bid to lose his guardian and conservator escalated into a nasty, costly court fight.

Although Keenan's guardian resigned months later, his conservator — Colorado State Bank and Trust — has charged almost $300,000 for litigation costs before and after a judge summarily replaced it.

Full Article and Source:
Bank Appointed as Disabled Man's Conservator Fought Him, Then Billed Him

Judge Appoints Temporary Guardian for David Leyton's In-Laws

The county’s chief Probate Court judge on Thursday put a temporary guardian in place for county Prosecutor David Leyton’s in-laws after a new report by an elder abuse prevention agency said conditions in their home were getting worse.

Chief Probate Judge Jennie Barkey put Flint attorney Jim Trembly in charge of the day-to-day affairs of the elderly couple. Three of their children — including Leyton's wife, Therese — are fighting a request by another sister for the appointment of a permanent guardian and conservator.

Leyton, who is not a party to the case, has said he has not involved himself in the family controversy, and is simply acting as a support for his wife.

The hearing came after the county's elder abuse prevention team's filed a report this month saying Leyton's in-laws "are not getting the appropriate medical care they desperately require for their declining physical and mental conditions."

Attorneys for Therese Leyton and her siblings have said reports by the elder abuse agency have been inaccurate in describing conditions in the home.

Barkey also ordered a 90-day adjournment in the case after attorneys for Leyton's mother-in-law and father-in-law requested it, saying they believed the cooling-off period could help promote a settlement in the case without a trial.

Full Article and Source:
Judge Reappoints a Temporary Guardian For In-Laws of Genesee County Prosecutor David Leyton

See Also:
Judge Orders Investigators Visit David Leyton's In-Laws

CO: Bill Would Clarify Conservator Laws

The clash in the case of a man who came back from a coma could spill over into Colorado's legislative halls next year.

Probate lawyers are working on a bill that would help define how much and when they can be paid.

Chester "Skip" Morgan, Matthew Keenan's attorney, said they are trying to codify into Colorado law the decision a Boulder judge made in Keenan's case — that his former conservator, Colorado State Bank and Trust, and its lawyers deserved to be paid because the bank acted "in good faith" when it opposed Keenan's petition to drop it as his conservator.

The stakes in that case are growing. Keenan, who recovered from a coma and successfully petitioned to lose his guardian and change conservators, asked for a refund of about $65,000 that the bank had spent challenging him in court. In a 2009 trial, the bank successfully argued that it was acting reasonably — and won an additional $222,000 for its costs and legal fees in that case.

"You can fight him and say, 'I didn't think he was ready,' and that's good enough for good faith," Morgan said. "That shouldn't happen to anybody, ever, ever again."

Marc Darling, the lawyer spearheading proposed revisions to the payment rules for guardians, conservators, trustees, estate representatives and others involved in probate cases, calls it "a comprehensive rewrite of the compensation structure" intended to clarify and simplify court decisions.

He said the project was undertaken partly at the request of judges, who found the existing statutes scattered and confusing and wanted laws dealing with payments consolidated in one place. It also sets forth, for the first time, a procedure for resolving fee disputes, he said.

The draft proposal allows court-appointed fiduciaries to charge a percentage of an estate instead of an hourly rate for work, a change that some critics fear will lead to client-gouging.

The current draft also troubles the Colorado Cross-Disability Coalition, an advocacy group for people with disabilities.

"It still will allow someone to use your money to fight you," said Julie Reiskin, its executive director. "I'm not OK with that."

Full Article and Source:
Bill Would Clarify Conservator Laws

Thursday, September 30, 2010

Edward Abbott Ravenscroft Fights Fiduciary

Edward Abbott Ravenscroft is a wealthy 49-year-old Scottsdale heir. His net worth is over $5 million, and his income is $180,000 a year.

But he has had troubles.

A judge appointed the Maricopa County Public Fiduciary as Ravenscroft's guardian and the Sun Valley Group, a private fiduciary, to oversee his money. By August 2009, Ravenscroft was sober and in February was living on a friend's couch.

Sun Valley was paying the friend $200 a week out of Ravenscroft's assets for his room and board. Ravenscroft said he chose the couch to stop Sun Valley from putting him into a skilled care center.

Ravenscroft went to court early this year to take back control of his life and fortune. In March, a judge permitted the public fiduciary to exit the case, but Sun Valley, using Ravenscroft's money, fought to still manage his finances, saying they were complex and vulnerable to exploitation.

In May, a judge canceled Sun Valley's control of the money and appointed another private fiduciary with Ravenscroft's approval.

Ravenscroft is back in his Scottsdale home. He said his trip through court cost him $800,000 in attorney and fiduciary fees.

"I'm not doing 'Oh, poor me' " Ravenscroft said. "I'm saying, 'How can I help other people so they don't get caught up (in Probate Court)."

Full Article and Source:
Maricopa County Probate Court - Wealthy Heir Fights Against Fiduciary

See Also:
Edward Abbot Ravenscroft Wins Some Say

Judges Do Little to Help

Gary Nichols had seen enough.

As his attorney dueled with other lawyers over how fees would be charged to his mother's trusts, Gary decided a prolonged fight would only deplete her savings. So he told attorney Thomas Asimou to "shut down" the case.

Later, when sanctioning Asimou for ethical violations for his claims about a fee deal among the attorneys involved, Judge Karen O'Connor would call his withdrawal "quite telling." He had "distracted (from) the true focus of the case - resolving the issues in the best interest of Dixie Nichols," she said.

But Gary believed if the judge really cared about his mother's interests, she would have intervened to slash the attorney fees.

"It was and remains my perception that my mother's assets and estate, and her interests, were not being adequately protected by her attorneys," Gary told the court. "I recall that I used the term 'bellying up to the bar' to describe my perception."

O'Connor had raised the possibility of a criminal probe when she removed Gary's sister, Nancy Cork, as her mother's guardian and conservator. The judge ordered Nancy to account for expenses to "allow the parties to discover any alleged financial exploitation," which is a crime. Asimou argued that such a finding would have prevented Nancy from paying her attorney's fees out of her mother's assets. Nancy was never charged with a crime. With the settlement, she agreed to step down as her mother's trustee and relinquish her inheritance and any say in her mother's finances.

O'Connor explained in an e-mail: "No financial exploitation was proven in this case, nor was there an agreement by the parties that it existed."

Asimou appealed the $46,000 fine to the Arizona Court of Appeals alleging the judge abused her discretion.

Full Article and Source:
Maricopa County Probate Court - Judges Do Little to Help

Lindsey Lohan Possibly Facing Conservatorship

Court could appoint a third party for Lindsay Lohan to act as a legal guardian over her affairs.

“Under the California Welfare and Institute Code for Mental Disorders and Chronic Alcoholism, the courts may determine Lindsay unfit to care for herself even though she is an adult,” Fox News quoted former California prosecutor, Robin Sax, as telling Pop Tarts.

“This would be subject to another court hearing separate to the criminal case, and could be determined from a mental health evaluation made when and if she returns to rehab.”

Los Angeles-based criminal defense lawyer and law professor, Jeffrey W. Steinberger, believes Lohan needs someone responsible to legally manage her personal affairs, although the process may take some time.

“What she needs is an emotional conservator, she needs somebody to run the balance in her life and they (the courts) can appoint people to supervise where she is going. They can probably do that after she does this one more stint in jail,” he said.

Steinberger said that Judge Fox, who is currently residing over Lohan’s DUI case, is known to be “compassionate,” and may begin to look for an appropriate conservator between now and Lohan’s Oct. 22 hearing.

Full Article and Source:
Lilo Could Be Placed Under Conservatorship By Court

Wednesday, September 29, 2010

NASGA Supports HALT's 'Lawyer Discipline Best Practices Petition'

Make sure your voice is heard - sign HALT's Lawyer Discipline Best Practices petition. We need every member of the legal reform movement to stand up and be counted.

Every year, tens of thousands of people who pour hard-earned money into lawyers' pockets find themselves battling the very person they hired to help them. And every year over 100,000 Americans who file complaints against lawyers with their state's disciplinary agency walk away unhappy. In 2006, more than 123,000 complaints were filed against lawyers, but 92% led to no discipline or only informal "private" discipline. Less than 1% led to disbarment.

Signing HALT's petition is one way you can demand action on ten common-sense reforms that push discipline agencies to:

*Disclose a lawyer's complete and disciplinary history so that consumers can make informed decisions about whether to hire an attorney.
*Host a user-friendly Web site that is easy to find and provides helpful information about the discipline process.
*Discipline lawyers with formal, serious and public measures.
*Permanently disbar lawyers who commit abusive practices against clients.
*Abolish gag rules that prevent people from speaking publicly about complaints they've filed.
*Publicize the availability of lawyer discipline programs through required client notification and local advertising.
*Open lawyer discipline hearings to everyone to increase the public trust.
*Provide ordinary citizens with a majority voice on the panels that decide attorney misconduct cases.
*Grant clients and witnesses immunity from civil liability for any information given to the agency during a disciplinary investigation.
*Allow citizens to appeal initial complaint dismissals and hearing panel discussions.

HALT's reform efforts are having an impact. Oregon, California and Nebraska are just three states that have implemented reforms that improve transparency and accountability.

But we need to show that legal reformers support HALT's efforts in every state. Will you please help?

Our goal is to collect 1,000 signatures from each state.

Sign HALT's Petition

Texas Couple Fights for Custody of Adult Daughter

An Arlington couple is fighting to regain guardianship of their daughter after being stripped of their rights by a judge.

They weren't notified about the hearing and didn't get to tell their side of the story. They found out after it was a done deal.

But what happened was completely legal.

The Covingtons were not notified before their rights were stripped. The ruling came in an ex parte hearing where a judge hears evidence only from the complaining party. The other side isn't given notice of the hearing and doesn't get to respond.

"You just don't understand how this can happen in a democracy." Frank said.

The Covingtons are asking to be reinstated as their daughter's guardians at an upcoming hearing.

"I don't know how we're gonna get her back." Chila said.

The Covingtons are devastated by what's happened. They've accumulated $55,000 in legal bills and they're fearful for their daughter.

But they've made a commitment to keep fighting.

Full Article, Video, and Source:
Couple Fights for Custody of Adult Daughter

See Also:
Families Lose Guardianship in Secret Hearings

Las Vegas Lawyer Under Scrutiny

Las Vegas attorney Stanley Walton is not having a good month.

One week after he was arrested for contempt of court in a probate case involving millions of reportedly missing dollars he was supposed to safeguard, Walton failed to file a formal answer to a Nevada State Bar complaint alleging he misappropriated $20,000 given to him by a client in an unrelated case.

Along the way, Walton is alleged to have violated several rules of professional conduct that Nevada lawyers are required to follow, particularly as they relate to relationships with clients.

The complaint, signed by State Bar of Nevada General Counsel Rob Bare, details Walton's relationship with Xiao Ping Wang, which began in 2003 when Walton was appointed a special prosecutor in a domestic violence case in which Wang was the victim.

A month later he was her divorce attorney, and for a brief period, they were intimate. Walton continued to represent Wang in a variety of legal matters and, according to the Bar, she considered him her "general practitioner" lawyer.

According to the Bar, Walton might have offered Wang a deal that sounded too good to be true: A $20,000 investment that just 22 days later would yield $100,000.

Because Walton failed to file a written answer to the Bar complaint within the required 20 days, his law license is imperiled. The Nevada Supreme Court has final control over law licenses.

Potential disciplinary measures range from a private reprimand to permanent disbarment. It is also possible the Bar could file a second complaint regarding the probate case.

In its four allegations of rule violations, two claim Walton had a conflict of interest with Wang, one accused him of failing to protect her property, and the fourth -- and arguably the most serious -- charges him with misconduct for engaging in conduct "involving dishonesty, fraud, deceit or misrepresentation."

Full Article and Source:
State Bar of Nevada Acts to Discipline Las Vegas Lawyer

Tuesday, September 28, 2010

Sister, Fiduciary Had the Same Lawyer!

For years, Dennis Ball was his mother's [Eleanor]caregiver, helped create her trusts and managed her money.

But in 2004, Eleanor was hospitalized, and her estranged daughter, Carol, got a restraining order against Dennis and petitioned the court for temporary guardianship.

Although Eleanor initially protested the petition, she later agreed to the appointment of a neutral third-party conservator and guardian. She specifically asked that the court allow her to continue living at home and keep her estate plan.

The court appointed Southwest Fiduciary to manage her money and care, even though Southwest's attorney was also Carol's attorney.

Billing records show that over the next 22 months, Southwest and its attorneys managed Eleanor's assets and care, consulting more with Carol than Dennis. .Southwest sold off Eleanor's home and rental properties. It assumed control of her trust, took over her bank accounts and placed Eleanor in a nursing homeDennis said Southwest left his mother penniless. An accountant retained by Dennis found that 76 percent of her estate paid Southwest's legal and administrative fees.

Southwest owner Greg DoVico would not discuss the Ball case. But in answering complaints to the Arizona Supreme Court's fiduciary board, the company said Dennis refused to cooperate with the court, was sanctioned by a judge for filing a frivolous motion and financially exploited his mother, which he denies. The company said his complaints were based on half-truths.

Full Article and Source:
Maricopa County Probate Court - Sister, Fiduciary Had Same Attorney

Maricopa Probate Court - Life Savings, Freedoms Taken Away

Outside of being imprisoned, no action in the American justice system deprives a person of so many rights as being declared incapacitated in Probate Court.

First, a judge rules that you can't care for yourself. Then strangers can be given control of every aspect of your life. All that you've worked for and love - your savings, property, even your ability to contact your family - can be taken away and given to professionals to manage, at enormous expense to you.

Wills, trusts and powers of attorney may not matter.

Probate Court is meant to be a safe harbor for people in crisis because of advanced age or illness, a place where a judge helps protect their assets and well-being.

But an Arizona Republic investigation has found that Maricopa County Probate Court allows the assets of some vulnerable adults to become a cash machine for attorneys and for fiduciary companies, which manage their affairs.

The fees charged can drain the savings of even wealthy individuals in less than a year.

Among the investigation's findings:

Issue I: Disputes trigger the problems. Fights among family members lead to protracted, costly legal battles. Judges often fail to step in early to stop the feuding and contain costs.
Issue II: Fees mount quickly. Bills for attorneys, fiduciaries and others can escalate at a staggering pace. Family members contend that professional fiduciaries bill people's assets aggressively.
Issue III: Cozy relationships raise questions. Close ties among judges, attorneys and fiduciaries can result in apparent conflicts of interest. These relationships can endanger the court's ability to hold attorneys and fiduciaries accountable for their billings and other practices.
Issue IV: Objectors take the blame. Relatives or lawyers who try to fight fiduciaries' bills may instead find themselves blamed by the court for causing delays and held responsible for extra costs.
Issue V: Oversight is lax. Judges, who have ultimate responsibility for a vulnerable adult's care and assets, are allowed to scrutinize and reject fees, but substantial denials are rare. The state board that licenses fiduciaries does little to question their conduct, especially if a judge already has ruled on a case.

[C]osts begin to mount when a judge appoints a professional fiduciary because no family member is willing or available to run the person's affairs. The judge also appoints a fiduciary when family members are feuding.

And when family members disagree with one another or with the fiduciary, costs can soar: All parties may have one attorney or more, and most of them are allowed to bill the incapacitated adult's assets.

Lawyers and fiduciaries defend their work, saying they help settle family feuds and arrange care when no one else will. Still, many acknowledge the system needs reform.

Critics say Probate Court has become a vehicle for exploitation.

Full Article and Source:
Maricopa County Probate Court - Life Savings, Freedoms Taken Away

Maricopa Probate Court - Fees Mount Quickly

In a matter of months, lawyers and fiduciaries appointed by the court can rack up tens of thousands of dollars in bills. People who enter the court system flush with cash can end up destitute.

One reason the fees mount so quickly is the number of parties billing.

• The court may appoint two attorneys for the incapacitated person, the ward. One represents the ward's desires, the other the ward's best interests. The two may conflict.

• The ward's trust, which holds assets, also may have an attorney who bills the assets.

• The private fiduciary and its attorney bill the assets.

• One or more of the ward's relatives may have attorneys who may bill the assets.

A probate lawyer charges $175 to $400 an hour. Many private fiduciaries in Arizona charge $100 or more an hour. Attorneys and fiduciaries often discount their fees and perform some tasks for free.

Phoenix attorney Candess Hunter, who represents fiduciaries, says fees have become a huge profit center for some in the probate system: "It all has to do with a few people who have discovered how to create a billing machine to gather significant wealth."

Attorneys and fiduciaries charge for seemingly every task their offices perform - opening mail, writing checks, answering the phone. A judge often reviews the bills only once a year and rarely makes big reductions.

Relatives grow especially angry when a fiduciary delays or denies paying for a ward's needs while still billing for its own fees.

Family members of Dave Coppes, 85, of Carefree, who died last year, say a fiduciary, the Sun Valley Group, paid itself $27,000 in December 2008 about the same time it told them that Coppes could not afford hearing aids.

Full Article and Source:
Maricopa County Probate Court - Fees Mount Quickly

Monday, September 27, 2010

Help Bring Rita Denmark Home

Pennsylvania member Holly Peffer is involved in a pivotal hearing on Friday, October 8, 2010 at 2:30 P.M. at the McKean County Pennsylvania Orphan's Court.

NASGA asks for your support on behalf of Holly and her Mother, Rita Denmark. The State of Florida is currently holding Rita captive in an abusive guardianship and won't let her come home to Bradford, PA.

She is not a criminal. She has done nothing wrong. But, for over three long, miserable years, she has languished in a Florida nursing home, completely isolated from her family and friends, while her daughter, Holly, has battled the legal system for Rita's freedom. Florida doesn't want to let Rita go. But, Rita's not a resident of Florida. She's just caught up in the system and red tape. It's up to the State of Pennsylvania to bring Rita home.

The October 8th hearing is critical.

Please show your support for Rita Denmark and her right to come home and happily live her life with her loving family and friends instead of dying prematurely, alone and afraid in a stark and cold institution, held captive against her will.

You can make a difference! Please show up for the hearing and help send the message that it's not only time for Rita Denmark to come home, it's her right as an American citizen.

After the hearing, a reception will be held at Holly's home. Everyone is welcome!

Please contact Holly Peffer ( for directions and more information.
McKean County Court House
500 West Main
East Smethport, PA

Friday, October 8 · 2:30pm - 4:30pm

Congressman Joe Sestak's Letter Supporting NASGA Member Holly Peffer

FL: Maggots Found in Eye Socket of Nursing Home Patient

Maggots have been discovered in the eye socket of a 76-year-old man under the care of a Gainesville nursing home with ownership ties to Palm Beach County and the Treasure Coast, his outraged daughter said.

A state investigation is under way.

"It's absolutely inexcusable," Patrice Ripley said. "Quite frankly, I'm angry."

Her father John Stumpp had been under the care of Gainesville Health Care Center when the maggots were found in an examination at a Veterans Administration facility, according to Ripley.

The Gainesville nursing home is part of a chain that includes Glades Health Care Center in Pahokee, controlled by the family of executive Maxcine Darville of Okeechobee. An investigation by The Palm Beach Post last year found Darville and family members enjoyed salaries above industry norms and spent money on luxury cars and hot tubs while two of three nursing homes in the chain, including the Gainesville home, received the lowest possible one-star rating from state regulators.

A Veterans Administration official confirmed the agency filed a report with the Adult Protective Services unit of the Florida Department of Children and Families.

By November 2009, AHCA had flagged 39 violations at Gainesville Health Care Center in the previous two years on matters ranging from sanitary food storage to maintenance of sprinklers and ventilation. An overall one-star rating from AHCA places the nursing home in the bottom 20 percent of nursing homes in its region.

The nursing home is licensed to the Gainesville Council on Aging, which lists Darville as its registered agent.

"I can't let this go," Ripley said. "I can't let this go for my dad and I can't let anybody else be mistreated either."

Full Article and Source:
Maggots Found in Eye Socket of Man in Nursing Home With Palm Beach County Ties

Sunday, September 26, 2010

PA Judge Facing Discipline for Road Rage Incident

A district judge faces disciplinary charges stemming from accusations that he brandished a gun while driving and talked tough about juvenile crime and graffiti in news stories, which would violate a conduct code for judges.

The Pennsylvania Judicial Conduct Board announced seven charges Friday against Erie District Judge Thomas Carney, who took office in January 2006.

The state Court of Judicial Discipline will hear the charges and can discipline Carney if he's convicted, up to removing him from office.

Last year, state police say Carney made an obscene gesture with his hand toward another driver and held a gun out his car window, though he did not aim it at the driver. Carney pleaded guilty to two counts of disorderly conduct.

Carney is also accused of violating a conduct rule that calls for judges to refrain from commenting publicly about ongoing court proceedings.

Full Article and Source:
PA Judge Faces Discipline for Road Rage With Gun

Nurse & Teacher Sentenced to 5 Years Plus Restitution

A nurse and a part-time kindergarten teacher were sentenced to nearly five years in prison and ordered to repay $839,252 they stole from a 94-year-old man in their care.

Deborah G. Johnson, 53, and Anita Esquibel, 69, each pleaded guilty to one count of theft and one count of money laundering in Franklin County Common Pleas Court.

Johnson, the nurse, and Esquibel, the teacher, gained the trust of Peter Svaldi after meeting him in the apartment building they managed near Graceland Shopping Center. After gaining power-of-attorney for Svaldi, they used his accounts to buy real estate, a car, jewelry and dental work.

A bank officer alerted police after discovering large transactions being made from the accounts of the elderly man, who was known for his frugality.

Full article and Source:
Nurse, Teacher Sentenced for Bilking Elderly Man

See Also:
Nurse and PT Teacher Charged With Theft

Shelter Directors Back Executive Director

New Horizons for New Hampshire's board of directors is backing executive director Michael Tessier despite state and federal criminal investigations into whether he played any role in the case that landed his brother, disbarred Manchester attorney Thomas Tessier, in prison for stealing $2.3 million from relatives.
A Probate Court judge said in a recent order that Michael Tessier, 57, a retired Manchester police captain, "was complicit in those illegal activities, primarily by being both an active and passive conduit for funds taken by his brother, Thomas Tessier."

Scott Colby, chairman of the board of Manchester's non-profit homeless shelter and soup kitchen, said the board has met with Michael Tessier and supports him.

In fact, the board was aware of the investigations when Michael Tessier was hired, according to his lawyer, Mark Howard of Manchester.

Full Article and Source:
Shelter Directors Stand by Tessier as Probe Unfolds