Saturday, July 2, 2011

Mental Incapacitation Not a Factor in Signing Nursing Home Arbitration

A Kentucky federal court ruled Monday that an arbitration agreement signed by a nursing home resident is enforceable, even though the 74-year-old woman said she suffered from a major mental disorder.

The woman, Christine Abell, brought a suit against Life Care Center of Bardstown alleging negligence, gross negligence, wanton conduct, intentional conduct and disregard for her safety. Abell argued that she was mentally incapacitated when she was admitted, but the U.S. District Court for the Western District of Kentucky found that she was unable to demonstrate that age, sickness, extreme distress, or debility of the body invalidated her signature on the arbitration form, according to the Bureau of National Affairs.

While a pre-admission screening detected a “major mental disorder,” there was not proof to show that this prohibited Abell from understanding what she signed, the court stated.

Full Article and Source;
Court: Mental Incapacitation Not a Factor in Signing Nursing Home Arbitration

Former Lawyer Indicted for Alleged Theft From Elderly Couple

A Greenfield lawyer has been indicted by a Franklin County grand jury, for allegedly stealing more than $186,000 from an elderly couple he represented in a personal injury case.

Edward Pepyne, Jr., 58, of South Deerfield, has been indicted on a charge of larceny over $250 on a person over 60 years of age.

According to a news release from the office of Attorney General Martha Coakley, Pepyne had represented an elderly couple following a 2006 auto accident. Pepyne had settled the couple’s personal injury claim without bringing the case to trial.

The couple had agreed to pay Pepyne one third of their settlement, but the Attorney General’s Office says that Pepyne told the couple he had to keep even more money in order to pay for outstanding medical expenses. No such expenses existed, and Pepyne allegedly used the more than $186,000 on himself.

Pepyne has since been disbarred, after his alleged activities were reported to the Office of Bar Counsel.

Full Article and Source:
Greenfield Lawyer Allegedly Stole $186K

PA: Judiciary gets $22 mil Budget Increase

The Pennsylvania judiciary is going to see a $22 million budget increase in the 2011-12 fiscal year that started today, even as the majority of state court systems in the country have experienced budget cuts.

Fifty-seven percent of state court systems had their budgets cut in the last fiscal year, while 31 percent had an increase and 12 percent saw no change, according to the National Center for State Courts.

The Pennsylvania judiciary also is seeing a budget increase despite an overall state budget that was reduced by 4.1 percent to $27.15 billion. The courts will be funded $298.9 million, up from Gov. Tom Corbett's proposal of $276.9 million.

Full Article and Source:
Judiciary Gets $22 Mil. Increase in Pa. Budget

Friday, July 1, 2011

Marriage Equality in New York

It is a debate raging across the country and a hot issue on the current social and political agenda here in New York.

Gay or straight, does it matter?

In the Southern Tier Finger Lakes region of New York is a husband and a wife who, married now for 13 years, are not allowed to live together and not allowed to freely associate.

There is no divorce, there is no history of domestic violence, they were not poor or receiving government assistance — they were a happily married loving couple minding their own business, living their own lives, going to work every day, no trouble with the law, paying their taxes.

Then, suddenly, the husband was involved in a serious accident which left him neurologically and physically incapacitated. As would most individuals in such a situation, the wife was advised to seek legal guardianship of her husband. She hired an attorney, papers were filed in court and the wife expected she would be appointed guardian, uncontested, and soon her husband would be receiving “home-care” back in the loving environment of their marital residence.

Full Article and Source:
Gay or Straight, it Doesn't Matter

See Also:
Gary Harvey - Government Intrusion

Police Officer Accused of Posing as His Father in Attempt to Steal Pension

A Chicago Police officer stole $50,000 from his ailing elderly father to pay off his bills and gambling debts and unsuccessfully attempted to swipe his dad’s retirement savings by impersonating him, Cook County prosecutors said Wednesday.

The 69-year-old Kentucky-born Joseph Simpson Sr. died in November at Westmont’s ManorCare Health Services where he been placed due to his “severely impaired” state brought on by his dementia and Parkinson’s disease, according to court records.

But his namesake son’s alleged crimes didn’t surface until DuPage County officials continued investigating unpaid bill claims by ManorCare and the Illinois Department of Public Health.

Joseph Simpson, Jr., 37, turned himself in to the District 1 police station with his attorney Dan Herbert at his side Wednesday morning, court records show.

Between January and October of 2009, the junior Simpson used 15 checks from his father’s bank accounts to pay off bills, prosecutors said.

That year he also allegedly repeatedly called JP Morgan Retirement Services and impersonated his father in hopes of withdrawing his $102,000 in retirement savings.

Simpson has been charged with several counts of theft, fraud and financial exploitation of the elderly.

He was ordered held in lieu of $40,000 bail Wednesday.

Full Article and Source:
Cop Accused of Posing as Elderly Father in Attempt to Steal Pension

Thursday, June 30, 2011

Nicholas Cage's Son in Conservatorship Battle

Nic Cage might have been a "superhero" in "Kick Ass," but his ex-girlfriend certainly doesn't think he can take care of his son. Weston Cage's conservatorship battle between Christina Fulton, Cage's ex, and Cage, is heating up.

Weston, 20, a death metal singer, is currently in psychiatric evaluation after a fight with his personal trainer in early June, reports Contact Music.

Fulton is pursuing conservatorship of her son - but both Nic and Weston look to be against Fulton's actions.

Nic has issued a statement stating that he hopes that "Ms. Fulton will come to her senses one day and get some help. Weston is a man," reports celebrity gossip source TMZ. Weston also fired off a public statement saying that he is a "fully capable and self-sufficient adult" and that he does not want to be in contact with his mother - and that he "will never undergo the torment she put me through ever again."

Full Article and Source:
Nic Cage's Ex Wants Conservatorship: Son Needs Legal Guardian?

CT Editorial: Probate Judges Should Be Appointed

Several years ago, a proposal was put forth to consolidate the state’s probate court system, a controversial plan that drew sharp criticism from those within the system and considerable pressure on lawmakers from those unwilling to give up their turf.

But the handwriting was on the wall. Once parts of a self-sustaining system, the courts were losing money and the state could no longer afford the tens of millions of dollars needed each year to bail it out. It took two years to clear the Legislature, but the reforms were enacted and the consolidation from 117 districts to 54 took effect in January.

It was the right decision, and it has paid off. For the first time in six years, the state’s probate court system will not only end the fiscal year on June 30 in the black, but will also return more than $5 million to the state.

Selection process
As we noted in an editorial last year, it’s time to take the next step in reforming the court system by changing the manner in which probate judges are selected.

Probate judges are elected to four-year terms, which means they solicit contributions to run election campaigns every four years.

We believe probate judges should be appointed, not elected, and undergo the same rigorous vetting process used for all judges in our judicial system. The responsibilities of probate judges are far too important and sensitive to continue the practice of subjecting them to a political process in which the potential for inappropriate influence can arise.

Probate courts are responsible for more than just the administration of wills. These courts are responsible for adoptions, custody, visitation and other child care issues; guardianship for the mentally ill, the disabled and elderly; and making critical health care decisions for those unable to take care of themselves.

Full Article and Source:
Our View: Probate Judges Should be Appointed

Wednesday, June 29, 2011

Supreme Court Rules Against Estate of Anna Nicole Smith

The Supreme Court on Thursday ruled against the estate of Anna Nicole Smith in the latest chapter of the long-running saga over whether a Texas billionaire's alleged promise to give millions from his $1.6 billion estate to his young Playmate wife trumped a will that left his fortune to his son.

The high court ruled that a bankruptcy judge's decision giving millions to Smith from the estate of oil tycoon J. Howard Marshall was decided incorrectly because those judges do not have the constitutional right to reach outside of bankruptcy cases into a probate case.

Chief Justice John Roberts said in a 5-4 decision that the Constitution gives lifetime tenure to federal judges during good behavior and without diminution of salary.

Bankruptcy judges "enjoy neither tenure during good behavior nor salary protection," Roberts said. "We conclude that, although the bankruptcy court had the statutory authority to enter judgment on Vickie's counterclaim, it lacked the constitutional authority to do so." Smith's real name was Vickie Lynn Marshall.

Federal bankruptcy judges are appointed and can be removed by judges on the U.S. Appeals Court and their salaries are linked to that of federal judges. Bankruptcy judges serve 14-year terms.

The family of E. Pierce Marshall, son of J. Howard Marshall, cheered the decision.

Full Article and Source:
Court Rules Against Anna Nicole Smith's Estate in Battle for Deceased Oil Tycoon's Estate

Anna Nicole Case May Save Billy Preston's Legacy

They were each famous but of course didn’t know each other. Nevertheless, dead celebrity Anna Nicole Smith’s legal cases against her late billionaire husband, J. Howard Marshall and Marshall’s late son Pierce, may wind up helping deceased pop star and Fifth Beatle, Billy Preston. Both cases concern bankruptcy filings.

Preston’s estate has been embattled since his 2006 death over whether he intended to file bankruptcy in 2005. His business partner and manager Joyce Moore says he didn’t, that Preston was incapacitated and never even appeared in bankruptcy court or even had credit counseling.

The mandamus notes that the bankruptcy was filed on October 21, 2005. But on October 19th, Preston “embarked on a three day crack cocaine” binge that sent him into a three week hospital stay at the Mayo Clinic in Phoenix.

In depositions the lawyer who filed the bankruptcy, Richard Perlman, admitted that he didn’t speak to Preston when he filed the paperwork. The bankruptcy trustee, R. Todd Nielson, then changed the name on the case from William Preston Trust–which, as an entity, couldn’t file for bankruptcy–with just the name William Preston. There are serious accusations that Preston’s name was forged on paperwork.

The resulting legal cases have gotten so out of hand that Bruce Fein, the respected Washington lawyer who represents Moore, has now filed something unique in he US Appeals Court, 9th district–a writ of “mandamus.” He’s asking the court to throw the whole case out, based on a list of mistakes of law made by the court or by the bankruptcy and Judge Theodor Albert.

Fein writes: “The tragi-comedy has featured Kafkaesque and Orwellian bankruptcy scenes that this Court should bring to a close in the name of justice.”

Full Article and Source:
Anna Nicole Smith Case May Save Billy Preston's Legacy

Tuesday, June 28, 2011

Corruption of the Judiciary: Where do We Go for Help?

Since posting my article on the current condition of our judicial system, I have received numerous emails and phone calls from individuals across the country. Based on these continuing communications I have concluded that the average citizen is in far more danger stepping into a court room of any kind, than from any commonly recognized criminal activity on the street. At least with a street criminal you stand a chance of defending yourself.

Many of the people who contacted me spoke of going so far as to meet with the FBI in the hopes of getting an investigation launched into the criminal conduct of not only judges, but also of state agency actors who, acting under the auspices of their offices repeatedly violated not only the law but the civil and lawful rights of individuals. Many of these actors believe they are immune from prosecution due to the office they hold. While the office itself may be immune, the individual occupying it can be held personally liable under a constitutional tort. This can be intentional or negligent. These tort claims hold the official directly and personally responsible for their actions; which is exactly why “tort reform” is high on the agenda of things to get done, in the District of Criminals.

In absolutely every case, without exception, of those who approached the FBI in their respective states, a stock answer was delivered to those hopeful for some kind of help from this agency.

Full Article and Source:
Corruption of the Judiciary: Where do We Go for Help?

Iowa: Guardian Appointed for Accused

Polk Country authorities, who appear legally unable to either prosecute accused killer Santos Rodriguez or involuntarily confine him to a mental hospital, moved to a third option - appointment of a legal guardian who will have the power to place Rodriguez in a group home or nursing home.

Polk Country Judge Ruth Klotz appointed Des Moines psychiatric nurse Robin Van Camp to find at least a temporary home for Rodriguez in light of what's expected to be his release from the Polk County Jail early next week.

Lawyers say Rodriguez, jailed since his SUV struck and killed an Iowa Air National Guardsman following an attempted gasoline theft in September 2009, is mentally incapable of understanding those still-pending criminal proceedings due to a 1999 brain injury. Court papers filed by a public defender in Rodriguez's vehicular homicide case demand an immediate dismissal of criminal charges based on an expert's finding that "there is no reasonable probability that the defendant will be restored to competency in a reasonable amount of time."

Judge Robert Hutchison has told attorneys that he plans to rule on the competency issue by Tuesday.

Full Article and Source:
Guardian Appointed for Accused Driver

Monday, June 27, 2011

Oversight Found Lacking for Guardians

A former corporate guardian who police say stole from elderly and disabled Outagamie County residents operated within an oversight system that relied largely on his word, The Post-Crescent has found.

In records he was required to file with the county, Jeffrey M. Schend neglected to report client assets and inaccurately reported spending and money received, leaving him room to siphon away hundreds of thousands of dollars, according to an attorney hired to investigate Schend's dealings.

State law doesn't require officials to closely audit a guardian's records.

The suspected thefts went undetected for about six years before clients and their caregivers raised red flags, the attorney found.

System based on trust:
State law generally requires guardians to provide an annual form listing a client's beginning asset balance, expenses for the year and assets at the close of the year. The numbers need to balance to gain court approval.

Full Article and Source:
Oversight Found Lacking for Guardians

Editorial: Judicial Board Must Prove Itself

AS WITH CROOKS and quacks in other professions, Pennsylvania’s misbehaving judges should be held accountable by an oversight group – a watchdog with both the ability and the inclination to dole out discipline.

Presumably, that’s the job of the state’s Judicial Conduct Board.

However, as became so painfully obvious in the wake of Luzerne County’s “kids for cash scandal,” the board apparently lacks the tenacity and the teeth to reliably deal with wayward jurists. In the now-infamous instance involving Luzerne County’s courthouse, the board bungled its response to allegations of case fixing and questionable changes in the handling of juvenile cases.

Ultimately, three former county judges either pleaded guilty to, or were convicted of, public corruption charges. If the conduct board had intervened, critics reasonably ask, might these judges have been brought to justice sooner, sparing damage to the institution and individuals who passed through their doors?

Last week, a Philadelphia-based advocacy group called Pennsylvanians for Modern Courts released a report calling for several sensible changes to the Judicial Conduct Board’s operations. The board’s viability, linked in no small way to its credibility among the public, is dependent on adopting many of these changes.

Among them:

• Clarify procedures for the emergency or temporary removal of a judge while a complaint is being investigated, if warranted by allegations of serious bench misconduct.

• Institute a reconsideration process for dismissed complaints, requiring that new evidence be presented before the board will give a complaint a second look. Currently, the board has no reconsideration or appeal procedure.

• Communicate more directly with those people who have filed a complaint about its status.

• Implement term limits for board members.

• Spell out and strengthen rules governing conflicts of interest and recusal.

The Judicial Conduct Board must embrace these sorts of improvements to regain not only the public’s trust in its abilities, but also in the integrity of the court system. By failing to do so, it portrays itself as a lap dog – on the scene but essentially useless.

Judicial Board Must Prove Itself

Sunday, June 26, 2011

Huguette Clark's Will

A last will and testament for the reclusive copper heiress Huguette M. Clark was filed Wednesday afternoon in Surrogate's Court in New York City, leaving most of her $400 million fortune to charity — and $1 million to her financial advisers even as a criminal investigation of the handling of her money continues.

The nurse who took care of her for two decades will receive about $30 million after estate taxes. She had been randomly assigned by an agency to care for Clark in about 1991.

Not a dime was left to Clark's relatives, who are likely to challenge the will in court. Nothing was left to anyone associated with Butte, the Montana mining town where her father made his first millions in copper mining. And nothing goes to the various Clark charities that her father had established for women and orphans.

Clark's will leaves $500,000 to her attorney, $500,000 to her accountant (despite his felony conviction and status as a registered sex offender), both of whom are the subject of a criminal inquiry related to their handling of her finances. The will also names the men as her co-executors, making them eligible to collect fees for handling her estate.

A criminal investigation continues, with the Manhattan district attorney looking into her financial affairs, which are handled by attorney Wallace "Wally" Bock, 79, and her accountant, Irving H. Kamsler, 64, who pleaded guilty in 2009 to a charge of attempting to send indecent materials to minors.

Full Article and Source:
Heiress Huguette Clark's Will Leaves $1M to Advisors

See Also:
The Late Huguette Clark Victim of Elder Abuse?

Abuse in FL Assisted Living Facilities

When Randy Trout began looking for an assisted living facility for his mother, Alva, he took care to find a place that was clean and pleasant, so his mother would be comfortable. He thought he’d found that, but then a series of events at the facility made him worry.

Eventually, his mother died, and Randy, a former police investigator, became convinced that neglect at the assisted living facility played a role. It is one of a number of cases uncovered in an investigative series by the Miami Herald and WLRN. Carol Marbin Miller is one of the reporters on that investigation. She says the case of Randy Trout’s mother is not uncommon. Her reporting shows that the state is doing little to regulate assisted living facilities in Florida.

Full Article and Source:
Abuse in Assisted Living Facilities

See Also:
Neglected to Death, Part Two