Probate Loss Might Change Colorado Law

Matthew Keenan lost an emotional legal battle with the bank he decided to dismiss as the court-appointed conservator of his estate. But he might change Colorado law.

Last week, the state appeals court upheld a ruling that Colorado State Bank and Trust reasonably contested the efforts of Keenan, a man who recovered from a catastrophic brain injury, to terminate the bank as his conservator.

But the judges left open the question of whether the bank can collect $217,466 from Keenan for the costs of fighting his bid for independence.

In the wake of his case, pending legislation would not allow Colorado guardians and conservators to "oppose or interfere" with petitions to oust them.

Keenan, a 46-year-old man who awoke from a coma 10 years ago and regained the use of his body and brain, contended Colorado State Bank and Trust had an inherent conflict of interest when it used his money in a fight to retain control of his assets.

But the appeals court judges held that under Colorado law, "opposition to the protected person does not necessarily breach the conservator's fiduciary duty."

They rejected a Boulder court decision to award the bank all of its legal expenses and costs from Keenan's trust funds, however, and ordered the court to review what compensation would be fair.

Spencer Crona, an attorney for the bank, called the court decision well-reasoned and extensively analyzed.

Chester "Skip" Morgan, Keenan's attorney, was shocked at first. "I was kind of sleepless and upset for two days after I read the opinion," he said. "I couldn't believe it."

But he praised the appeals court for vacating the award of legal fees, as well as legislation forbidding guardians and conservators to oppose petitions to terminate their services.

Keenan agreed.

"We may have lost this battle," he said, "but we have won the war by assuring that this kind of treatment never will happen again."

Full Article and Source:
One Man's Probate Court Loss Might Change Colorado Law

Police Probe Death of State Psychiatric Patient in Florida

Melinda Jakobowski lived most of her 24 years in state psychiatric centers in Connecticut, where she fluctuated from being able to spend some weekends with family members to being so suicidal that she needed two attendants watching her constantly on rotating shifts around the clock.

Late last year, she was transferred from Connecticut Valley Hospital in Middletown to the Florida Institute for Neurologic Rehabilitation in Wauchula, Fla. She joined a small group of Connecticut adult psychiatric patients — 27 out of 60,000 inpatients and outpatients — placed in out-of-state facilities. Officials said that these are patients who pose an imminent danger to themselves or others and are not responding to treatment here. Connecticut pays for their care in the outside treatment centers.

In less then six months, Jakobowski was dead.

Full Article and Source:
Police Probe Death of State Psychiatric Patient in Florida

Malcom X's Daughter Charged With Stealing, Identity Theft

The daughter of slain African-American activist Malcolm X has been charged with defrauding the 70-year-old widow of one of her father's bodyguards, prosecutors said.

Malikah Shabazz -- who has been wanted in New York since 2009 -- was arrested Friday in Mars Hills, North Carolina, for allegedly stealing more than $55,000 from New York resident Khaula Bakr between August 2006 and November 2007, according to a district attorney statement in New York.

She faces charges of third-degree grand larceny, third-degree criminal possession of stolen property, second-degree forgery, first-degree identity theft and first-degree falsifying business records, among other charges.

"The defendant is accused of stealing not only a substantial amount of money from a once-close family friend but her personal identity, as well," Queens District Attorney Richard A. Brown said in a written statement. "The alleged theft represents a shameful betrayal of the friendship that existed between the two families."

Full Article and Source:
Malcom X Daughter Charged With Stealing, Identity Theft

Mickey Rooney, the Champion!

Trapped, scared, used, and frustrated. That's how Mickey Rooney felt after being taken advantage of by a meddlesome family member, the 90-year-old film and television star told Congress on Wednesday.

Rooney was testifying before a special Senate committee that is considering legislation to curb abuses of senior citizens.

"Above all," Rooney said of being a victim of elder abuse, "when a man feels helpless, it's terrible."

And the problem is a lot more common than many people realize.

Full Article and Source:
Mickey Rooney: Elder Abuse Made Me Feel Trapped and Scared

Former Lawyer Sentenced to Prison

Before he sentenced Joe T. Buerkle to prison, Missouri appeals court Judge Gary D. Witt called the former local lawyer's actions reprehensible.

Buerkle, a former Cape Girardeau and Jackson lawyer who stole $325,000 from a client's trust fund, was sentenced to serve seven years in prison, but not before pleading to be assigned probation and allowed the opportunity find employment and begin paying restitution.

The state, represented by Dunklin County Prosecuting Attorney Stephen Sokoloff, and Stephen Wilson, Buerkle's attorney, both acknowledged that Buerkle has paid $54,000 in restitution and has a $30,000 cash bond that could also be used.

"With God's help I can do this, but I have to have a record I can walk into a potential employer with," Buerkle told the judge at the Common Pleas Courthouse in Cape Girardeau. "I'm ashamed to be here. As a prosecuting attorney, a city attorney and a practicing attorney, I held the crime I'm charged with as one of the worst."

Full Article and Source:
Former Area Lawyer Sentenced to 7 Years in Prison for Theft

See Also:
Third Judge Recusal in Lawyer Theft Case

Las Vegas Lawyer Arrested on Theft, Embezzlement Charges

A two-year investigation has led to theft and embezzlement charges against suspended Las Vegas lawyer Jeanne Winkler, who was arrested Tuesday evening by Washoe County sheriff's deputies.

"Jeanne Winkler swore to an oath as an attorney and was entrusted by her clients to uphold that oath," Las Vegas police officer J. Downing wrote in support of an arrest warrant. "Winkler was entrusted by her clients to protect their money which by her own testimony she used for her own personal use."

According to the document, the victims who filed complaints against Winkler with Las Vegas police suffered a total loss of about $143,000.

A criminal complaint, dated Feb. 18, charges Winkler with seven counts of theft. It also charges her with two counts of embezzlement involving a victim who is 60 or older.

Full Article and Source:
Lawyer Arrested on Theft Embezzlement Charges

Monica Yepez Passed

Monica Yepez, a well-known dentist and former UTEP cheerleader who successfully fought the courts for control of her estate after she was named a ward of the state in 2006, died Sunday -- the day before her 46th birthday.

Yepez's father, Alonzo Yepez Sr., said that the exact cause of death was unknown but that it was related to the ongoing health problems she developed after being partly paralyzed for the past five years.

Alonzo Yepez said Monica died at her East Side home, where she had been for the past two weeks after spending most of last year in the hospital because she had trouble breathing and had undergone a tracheotomy.

"She was tired, she was anxious, she was sick," her father said. "This was not her life -- that's not how she wanted to live. She was a go-go girl. She always wanted to be doing something."

In 2006, Yepez went to the hospital because she was dehydrated. According to court records, fluids that were supposed to help her instead caused her brain to swell, resulting in paraplegia. She lost mobility and her ability to speak. The injury left her in a wheelchair and caused her to gain more than 100 pounds.
"Everyone was expecting me to die," Monica Yepez said during an interview with the El Paso Times in 2009. "I could hear everything they would say about me, but I couldn't respond."

Because her assets were valued at $1.1 million, she and her estate were put into a state guardianship so that no one would take advantage of her, she was later told.

In 2009, she regained the use of her hands and her ability to speak.

That is when she began petitioning the court, asking for the right to control her finances. She also requested a full accounting of her estate, including the sale of her $600,000 home on the West Side.

After undergoing several physical and mental evaluations, the state dissolved her guardianship in October 2009. From then on, her $11,000-a-month disability check went straight to her.

"She was so happy that day," her father said. "She got control of her life back. That is all she wanted."

Full Article and Source:
Monica Yepez: Dentise, Ex-Cheerleader, Dies at 45

See Also:
Sweet Freedom

Editorial: Success Story in the Face of Judge's Failure

The first joke that came to mind was: “She’s one of Ciavarella’s success stories.”

When I got an update on Lisa (Scarborough) Spencer from her grandmother, it was almost all good news. She had earned her college degree, found a husband, landed a job, and at the age of 23 was mapping her future with thoughtful optimism.

It was good news because, back in 2004, Lisa’s run-in with then-Judge Mark Ciavarella became a centerpiece in a series of articles about juvenile justice in Luzerne County. Taken from home in shackles with no parent in sight, Lisa had spent five days in detention before Ciavarella gave her an indefinite sentence at a youth camp after only a cursory hearing.

Lisa had been fool enough, at age 16, to write an anonymous prank note about bringing a gun to school and taking aim at boys. In the post-Columbine era, she might as well have lit a keg of dynamite under the principal’s office. He and the justice system came down hard, and Ciavarella decided she was guilty of making terroristic threats. Never mind she had a spotless discipline record, a 3.8 GPA, and had fessed up to writing the note immediately, saying it was a joke, apologizing profusely and welcoming appropriate punishment.

Off she went.

The fascinating thing for me is that neither Lisa nor Ciavarella has changed, yet she was freed from her indefinite sentence early and began building a positive life with an upbeat attitude, while Ciavarella – the man who kept insisting he was straightening kids out so they wouldn’t turn to a life of crime – ends up the convicted felon facing up to 15 years in prison.

Proving once again that our county courthouse was built with an irony infrastructure.

Full Editorial and Source:
Success Story in the Face of Judge's Failure

NASGA Member's Open Letter to Senator Bob Corker, Ranking Member of the Senate Special Committee on Aging

February 25, 2011

Senator Corker,

I hope and pray the hearing you are a part of on March 2, 2011 with Mickey Rooney regarding the exploitation, abuse and neglect of our seniors will help shine light that brings about much needed reform to the national epidemic of elderly abuse. Because so much of the abuse happens on a state level in the probate court system, I am unsure how to reform the system on a national level. I can speak from personal experience that the laws on the books here in Tennessee and in Georgia, if honored are adequate to address the issues you will hear about.

The problem I experienced is an abuse of discretion by the probate court and its judges without concern for oversight and accountability for their decisions. Under the pretense of discretion, probate judges are given wide latitude in their oversight of an elderly persons well-being and finances. This can and does result in documented instances of lack of due process, violations of rules of the court, and cronyism. In my case my family was denied communication and visitation with my father from 2007 until he died last month. My father never met his now 2 year old grandson or saw my then 3 year old daughter and 1 year old son again. Fear and intimidation was used to keep him away from us while an older sibling and a local attorney took all of his financial worth. My attempts to visit with him and to ask the courts in Georgia where he lived were met with what can only be described as an abuse of discretion, violation of court rules, lack of due process and more. I was actually arrested in my home in Brentwood and charged with contempt of court in Georgia because I failed to appear at a hearing in Georgia I was not notified about. At that same hearing fess were awarded against me for "harassing the conservator" of my father's estate. I am dealing with that here in Tennessee as I write this letter.

I would appreciate it if you would consider reviewing the GAO 10-1046 report on Guardianships before the March 2nd hearing.

Thank you for your time and for representing our State and our nation in this important matter. The quality of life of our seniors who dedicated their lives to our country and their families is in dire need of reform and oversight. The laws in place seem to be adequate, but without genuine oversight and accountability for those holding decision-making power affecting the lives of those no longer able to take care of themselves, it is becoming open season for predatory guardians and conservators, all too frequently and often with the blessing of the probate system.

Highest regards,

Mark S. Israel
Brentwood, TN 37027

Full Letter and Source:
NASGA - Soapbox

KY: Bills to Curb Nursing Home Abuse Faltering

Two proposals aimed at preventing and investigating abuse of nursing home patients appear to be dead or stalled in the ongoing state legislative session, according to their sponsors.

In Kentucky, nursing home deaths from neglect and abuse often aren't criminally prosecuted because the coroner isn't called to investigate. But a bill that would require Kentucky nursing homes to report all deaths to the local coroner will not go forward this session because of opposition, its sponsor said.

Rep. Tom Burch, D-Louisville, said he won't call House Bill 69 for a vote in his House Health and Welfare Committee, citing opposition from the nursing home industry and budget concerns from the state's chief medical examiner, Tracey Corey.

Corey has said she would need to hire three medical examiners and support staff to handle the additional death investigations that could result from calling coroners after each nursing home death.

Burch said he tried to compromise with nursing home industry leaders with no success.

Senate Bill 44 is stalled in the Senate Judiciary Committee, where sponsor Tom Buford, R-Nicholasville, says he and committee chairman Tom Jensen, R-London, are "waiting on the go-ahead from the leadership office to move the bill."

In an interview Thursday, Jensen said he has spent much time on a bill dealing with state prisons and has not reviewed with Senate leaders SB 44 and several other bills before his committee.

Jensen said he thinks SB 44 has merit but it may be getting late in the session to consider it.

Full Article and Source:
Proposals to Curb Nursing Home Abuse Faltering in Frankfort

Judge Extends Mickey Rooney's Restraining Order

A Los Angeles judge has extended a restraining order Mickey Rooney obtained against his stepson through April, but says the actor must appear if he wants continued protection.

The judge ordered Christopher Aber to stay away from the veteran Hollywood actor until a hearing scheduled for April 5. City News Service reported Superior Court Judge Reva Goetz told Rooney's attorneys that the 90-year-old actor would have to come to court if he wanted the orders extended for three years.

A conservatorship has been established to protect the Oscar-nominated actor's money, which he claims have been mismanaged by Aber. Rooney has also accused his stepson of preventing him from leaving his home and verbally threatening him.

Rooney is scheduled to speak Wednesday to a U.S. Senate committee that is investigating elder abuse.

Source:
Judge Extends Mickey Rooney's Restraining Order

See Also:
Mickey Rooney Conservatorship

Evelyn Schwartz Passes

Evelyn Rose Schwartz was born April 10, 1916 she lived to be 94, passing away at around 12:30 Am at the Chardon Nursing home in Ohio, on Sunday the 27th of February, 2011.

When I (Betty) met Evelyn she was an active 88 year old woman living in a home she was very proud of; being cared after by her caregiver Dean. Evelyn's driving days were finally over - she had two dogs that she treasured and she was happy and content.

What I loved about her was she was a lady to be much admired. She had accomplished a lot in her life and had a lot of self worth about her. A really wonderful lady. One of her best friends was Dottie Buzeck who had moved Tennessee quite a few years ago. When Dean and I cared for Evelyn going into Manor Care nursing home, we met another woman (who worked there) who would become a very dear friend of Evelyn as well, Linda. So even in her last years, she still was surrounded by loving friends. Altho many have passed on as each year older; she saw more deaths. She has a lifetime of friends surrounding her - as you can see by some of us being here paying our last respects to her passing today. Evelyn understood life is about change, and one needs to accept there is a heaven, and loved ones are now in a better place. We know she is up there in heaven with all her family and friends who are privileged to be there too. Her family and friends can be proud of her.

Sadly several who love her, hadn't been able to see her for numerous months of late. However, we can say, she died knowing she was surrounded by love - as Dean, Linda and myself, Betty, were with her at the nursing home- visiting her- the night before she died.

Source:
Last Evening With Evelyn - She Died the Next Morning Knowing She was Loved

See Also:
Ohio: Evelyn Schwartz' Belongings Dumped

Federal Judge Rules Johnson & Johnson May Be Liable for Paying Kickbacks

A federal judge’s ruling[2/25/11]that Johnson & Johnson (JNJ) may be liable for paying kickbacks to nursing homes that prescribed the antipsychotic Risperdal is a reminder that just because you signed a contract doesn’t mean the contract is legal.

J&J thought it could evade the anti-kickback statute because it signed an agreement that didn’t directly involve sales of Risperdal. The judge, however, said that contract was merely a “subterfuge” to disguise kickbacks meant to encourage the prescribing of Risperdal.

Full Article and Source:
JNJ May Be Liable for Antipsychotic Kickback Scheme

Do Lindsay Lohan and Charlie Sheen Need Conservatorships?

It seems that conservatorships may become a new trend to help wild and out-of-control celebrities in Hollywood.

It sure helped Britney Spears. After her escapades of a hairless head, posing for the paparazzi with no panties, and excessive partying and drinking, her father, James Spears, filed for conservatorship. This allowed him to become her legal decision-maker and help turn her life and career around.

Then came talk of a conservatorship for Lindsay Lohan. She's had multiple DUI arrests and been sentenced to jail time and rehab, more than once. Most recently, she's facing a possible elony sentence for allegedly lifting a diamond necklace from a jewelry store.

A few months ago, Lindsay bristled at the reports that her father was attempting to file for conservatorship over her. Michael Lohan did not end up filing the court case, but with this latest criminal trouble, can another attempt be far off?

Most recently, Martin Sheen and his wife are said to be considering filing for conservatorship for Charlie Sheen. With the recent allegations of Charlie throwing his life away with excessive partying with porn stars, drug use, and alcohol abuse, he obviously needs help. He reportedly began rehab recently, but he's been down that road before.

So what is a conservatorship? It's a court process, typically in probate court, where a judge appoints a person to make legal decisions on behalf of someone who isn't capable of making them appropriately. Called guardianships in many states, this court process is designed primarily to help the elderly and developmentally-disabled when they lack the mental capacity to make proper decisions and need protection.

These laws weren't written for out-of-control Hollywood stars who suffer from drunkenness or drug-use instead of dementia or mental disability.

So are conservatorships really the right way to help these troubled celebrities?

Full Article & Source:
Do Lindsay Lohan and Charlie Sheen Need Conservatorships?

Probate Court to Limit Fees Paid to Lawyers, Guardians

The Berkeley County Probate Court has joined Charleston County in an effort to limit court-approved fees that can drain the estates of incapacitated elderly persons taken under the court's protection.

Keith W. Kornahrens, chief judge of the Berkeley County Probate Court, said he is going to go along with the fee restrictions set in place last year by the Charleston County Probate Court.

"I do think guardian fees are too high, even at the reduced rate," Kornahrens said.

He said he will issue an order this week limiting the fees for lawyers and guardians who handle cases involving incapacitated adults. He said he would adopt the same limitations issued last year by Irvin G. Condon, Charleston's chief probate judge.

In Dorchester County, Chief Probate Judge Mary Blunt said she will take a look at what Charleston and Berkeley counties have done because "it's nice when counties get in line." But, she said, she doesn't know if there is really any point because her court rarely uses professional guardians, preferring instead to search as hard as necessary to find a relative, friend or someone else to serve in that position. And that service generally is for free.

In addition, she said, the Dorchester County Probate Court has long limited attorneys in incapacitated adult cases to fees of no more than $125 an hour, half of what many normally charge. She said she views it as a form of community service for many of the elderly people who find themselves before the court and have little income or savings.

Condon limited certain fees after The Post and Courier's Watchdog began a review of court-approved charges made by lawyers, guardians and conservators, and questioned him about the rationale for some of them. Watchdog revealed in a series called "The Price of Living" that the Probate Court, which is supposed to protect vulnerable adults from financial exploitation, approved fees that in many cases drained tens of thousands of dollars a year from some of the adult wards' savings, leaving them broke within a year or two.

In [one] case, the Probate Court approved a guardian's $100-per-hour fee for taking his elderly ward a birthday card and flowers.

Shortly after that series ran in November, Supreme Court Chief Justice Jean Toal told the newspaper, "I will be taking action to move this issue forward."

Rosalyn W. Frierson, director of Court Administration for the Supreme Court, said the high court probably wouldn't take any unilateral action until after they receive a report from a working group on the guardian issue. That working group has not been named at this time.

Frierson said she did not know if any other probate courts had limited fees other than those in Charleston and Berkeley counties.

Kornahrens' order will:
--Limit attorneys to no more than $200 an hour. Some had been charging as much as $270.
--Guardians will be placed on a scale of $45 an hour to $75 an hour based on experience and training. Some previously charged as much as $140 an hour.
--Certified professional guardians will be allowed to charge $80 an hour. Some higher or lower charges might be allowed at the court's discretion.

Full Article & Source:
Probate Court to Limit Fees Paid to Lawyers, Guardians

See Also:
The Price of Living

Is System Draining Our Seniors' Assets?

Woman Who Defrauded Elderly Man Sentenced

A woman who pretended to be a licensed vocational nurse has been sentenced to nine months in Placer County Jail and ordered to pay back $240,000 to an 85-year-old man whom she defrauded over a period of years.

Debra Leigh Kelly, 55, of Foresthill was sentenced Wednesday by County Superior Court Judge Frances Kearney after pleading guilty to a felony count of theft or embezzlement from an elder. Judge Kearney also placed Kelly on four years probation.

Kelly had also pleaded guilty to misdemeanor counts of impersonating a licensed vocational nurse and practicing a trade without a valid license, according to a Placer County District Attorney's Office news release.

In a court hearing earlier this month, Kelly repaid $30,400 to the victim, leaving a balance of $209,600 that she must repay.

Kearney also banned Kelly from being in the presence of elderly adults unless a legal guardian or licensed caregiver is there to supervise.

According to prosecutor Jim Deslaurier, the case began in early 2005 when the victim hired Kelly to help care for his ailing wife. Kelly had falsely advertised herself as a licensed vocational nurse.

The victim's wife died a few months later, but Kelly befriended the man, telling him she was owed a significant amount of money from a civil lawsuit stemming from a horse-training accident.

Full Article and Source:
Woman Who Defrauded Elderly Man Sentenced to Placer County Jail

'Kennedy Lied, But What's New?'

We’ll get to the point.

When Kennedy announced from the bench in open court that the Danny Tate conservatorship was terminated nunc pro tunc (now for then), it was a calculated lie. He had no intention of terminating the conservatorship, he just wanted the bad press and supporters to go away.

The Temporary Letters of Conservator have yet to be dissolved. In other words, the Tate conservatorship was NEVER terminated.

Kennedy’s robes are almost laughable except for the horrific results forced upon the citizens he’s supposed to serve. Kennedy does not serve the people, he serves attorneys and politicians. He’s been given control of quite a deep purse of other people’s money and has no problem giving it away.

Source:
ImpeachRandyKennedy

2010 State Judicial Discipline

In 2010, as a result of state judicial discipline proceedings, seven judges or former judges were removed from office. In addition, 18 judges resigned or retired in lieu of discipline, pursuant to agreements with judicial conduct commissions that were made public, and agreed not to serve in judicial office again. One former judge was barred from serving in judicial office in the state again.

100 additional judges (or former judges in approximately six cases) received other public sanctions in 2010. (Two judges are counted twice because they were disciplined twice). In approximately half of those cases, the discipline was imposed pursuant to the consent of the judge.

Seventeen judge were suspended without pay, ranging from five days to one year, two of which were stayed in whole or in part with conditions. Nine of those suspensions included a censure, reprimand, fine, or probation. In addition, 17 judges were publicly censured; one of the censures was “severe,” one censured former judge also agreed not to serve again, one censure was based on the judge’s agreement to resign, and one censure also barred a former judge from serving in judicial office again.

Conduct commissions publicly reprimanded 42 judges (one reprimand also included a $5,000 fine, and one included a $6,000 fine), publicly admonished 19 judges, and publicly warned one judge. Three former judges were sanctioned in attorney discipline proceedings for conduct while they were judges. One judge was ordered to pay a $2,400 civil penalty.

Those figures do not include pending recommendations or decisions that were pending on appeal at the end of 2010, two of which have been decided in 2011.

Article and Source:
2010 State Judicial Discipline