Saturday, April 7, 2012

VA: Initiative Places Medicaid Recipients Back Home

When Linda Archie moved into a Virginia Beach nursing home five years ago, she thought her days of being independent were over.

Archie, 71, is paralyzed on one side of her body because of brain aneurysms. She had to get used to sharing a room, eating and sleeping according to schedule, and putting up with the assumption that "I wasn't right up here," she said, tapping her head.

That's where they were wrong.

In 2009, someone showed up at her bedside with a question: Did she want to move out?

She did.

"I felt like I had my life back," said Archie, who's been living in an apartment for the past two years.

It's a question required by the government to be asked of nursing home residents at least four times a year, and it's bolstered by a federal initiative called "Money Follows the Person" that helps people on Medicaid move out of long-term care facilities.

Medicaid, the joint state-federal insurance for low-income families and the disabled, has come under intense pressure to control spiraling costs.

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Initiative Places Medicaid Recipients Back Home

Former Lawyer Accused of Stealing From Clients, Including Murdered Children's Fund

A federal grand jury on Wednesday indicted a former Independence attorney for allegedly stealing nearly $650,000 from three clients, including a memorial fund set up in 2007 for two murdered children.

The Porter children were killed by their father in 2004 in a case that captured national attention.

Harley Kent Desselle, 61, of Raytown, was charged in the six-count indictment with wire fraud, bank fraud, bankruptcy fraud and making a false oath in a bankruptcy case, the U.S. Attorney’s Office in Kansas City announced.

Full Article and Source:
Former Independence Lawyer Accused of Stealing From Clients, Including Murdered Children's Fund

Friday, April 6, 2012

Judge's Frustrations Lead to Proposal, Outcry From Advocates

One of Hartford Probate Judge Robert K. Killian Jr.'s frequent "customers" is an elderly woman whose mental illness gives her delusions that there are dangerous people living in her cellar. When she's not taking her medication, she calls police, who come and reassure her. Every few times, they take her to be examined, and she ends up getting committed to a hospital.

Killian worries she'll end up losing her home.

It's a cycle that the judge says he sees too often: people with severe mental illnesses not taking their medications when they're at home, leading to behavior that lands them in the hospital involuntarily, or in jail. While there, they don't receive disability benefits and fall behind on their rent, eventually getting evicted and becoming homeless, losing one of the keys to stability in the community.

"I'm seeing some of these people three or four times a year for commitments," Killian said. "We spend an awful lot of time trying to find housing for discharged patients from mental hospitals ... And I hate a system that forces them to lose it."

Killian wants Connecticut to follow the lead of the majority of other states by allowing for people with psychiatric disabilities to be medicated, even if they object, while they're in the community, if remaining unmedicated would leave them or others at risk of harm. He believes the proposal, which would allow for up to 120 days of forcible medication, would offer a chance for people to become stabilized and potentially choose to take the medications, making them more likely to avoid the cycle that brings them back to the hospital.

The concept, part of a bill pending before the legislature's Judiciary Committee, is vehemently opposed by advocates for people with mental illness, who say it could undermine efforts to engage people in treatment and would go against the state's efforts over the past decade to create a behavioral health system that emphasizes clients' choices and participation in their own treatment.

Even Killian acknowledged that it's "a reach by Connecticut standards."

Full Article and Source:
Judge's Frustrations Lead to Proposal, Outcry From Advocates

Is Facebook Part of Your Estate?

MPs and lawyers in the United States are considering proposals to require Facebook and other social networks to grant access to loved ones when a family member dies, essentially making the site contents part of a person's digital estate.

The issue is growing increasingly important as people record more thoughts and experiences online and as more disputes break out over the material.

When Karen Williams' son died in a motorcycle crash, the Oregon woman turned to his Facebook account in hopes of learning more about the young man she had lost.

Williams found his password and emailed the company, asking administrators to maintain 22-year-old Loren Williams' account so she could pore through his posts and comments by his friends.

But within two hours, she said, Facebook changed the password, blocking her efforts.

She ultimately got back into her son's account, but it took a lawsuit and a two-year legal battle that ended with Facebook granting her 10 months of access before her son's page was removed.

Nebraska is reviewing legislation modelled on a law in Oklahoma, which last year became the first state to take action.

"Mementos, shoeboxes with photos. That, we knew how to distribute once someone passed away," said Ryan Kiesel, a former legislator who wrote the Oklahoma law.

"We wanted to get state law and attorneys to begin thinking about the digital estate."

Under Facebook's current policy, deaths can be reported in an online form. When the site learns of a death, it puts that person's account in a memorialized state.

Certain information is removed, and privacy is restricted to friends only. The profile and wall are left up so friends and loved ones can make posts in remembrance.

Facebook will provide the estate of the deceased with a download of the account data "if prior consent is obtained from or decreed by the deceased or mandated by law".

If a close relative asks that a profile be removed, Facebook will honour that request, too.

Like the Oklahoma law, the Nebraska bill will allow friends or relatives to take control of social media accounts if the deceased person lives in the state.

Full Article and Source:
Is Facebook Part of Your Estate?

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Thursday, April 5, 2012

The Astor Settlement: Anthony Marshall’s Friends and Family React

As the only child of New York’s beloved white-gloved philanthropist Brooke Astor, Anthony Marshall spent years preoccupied with how much he would inherit from his mother, who eventually died at age 105 in 2007. He envisioned a life in which he and his much younger third wife, Charlene, would not only live well but also have the pleasure of passing out the tens of millions left behind by his stepfather Vincent Astor, wielding clout on boards like the Metropolitan Museum.

But on Wednesday, Marshall, who was convicted three years ago of defrauding his mother’s estate, agreed to accept a settlement of a relatively paltry (for him) $14.4 million. Not only is this less than half of the riches that he expected, but the 87-year-old former ambassador also gave up all rights to distribute his mother’s charitable legacy. Since the four law firms that handled his criminal trial and probate fight have filed judgments totaling $11.6 million against him, he will not be awash in cash. “Mr. Marshall is pleased that a settlement has been reached,” his longtime lawyer Kenneth Warner wrote in a statement. “He is almost 88 years old and much prefers closure to an expensive and protracted litigation over his mother’s estate.”

Full Article and Source:
The Astor Settlement: Anthony Marshall’s Friends and Family React

Senators Press for Solution to Painkiller, Antipsychotic Abuses

Fearing an "epidemic" of death and defects from the illegal use and improper prescribing of painkilling and antipsychotic drugs, senators Thursday pressed a panel of doctors and health-care officials about how to stop the problem.

"It is tragic, it is sad, it is needless, it is fraudulent, it is horrible," said Sen. Jay Rockefeller (D.,W.Va), chairman of the Finance subcommittee on health. "And it is costing so much money that could be spent elsewhere."

The Centers for Disease Control and Prevention used the term epidemic in the fall in reporting that deaths from overdoses of painkillers had more than tripled in the last decade and surpassed heroin and cocaine deaths combined. State and federal authorities have tried to arrest those running so-called pill mills, at which painkillers are sold illegally.

Senators Press for Solution to Painkiller, Antipsychotic Abuses

Wednesday, April 4, 2012

CA Prosecutor Admits Not Proving Agent Knew Client Had Dementia

The agent who was convicted of theft for selling an annuity to a woman with dementia was never proven to have known the client was impaired, according to the prosecutor in the case.

Dementia was a central element in the case that led to the felony theft conviction of Glenn A. Neasham, an annuity producer in northern California. He said he was not aware his 83-year-old client had dementia or Alzheimer’s when he sold her an Allianz MasterDex 10 indexed annuity in 2008. Two of his assistants also testified that they did not see signs of dementia.

The prosecutor argued that the client, Fran Schuber, had been diagnosed with dementia in 2004 and was not capable of consent in the purchase of the $175,000 annuity, which was approved in California for sale to people up to 85.

After the verdict, Lake County Deputy District Attorney Rachel Abelson said in a court filing that there was evidence that Neasham knew Schuber could not provide consent for the sale.

“There was sufficient evidence presented to show that Fran Schuber was not capable of consenting to the transaction in question and evidence showed that he [Neasham] knew that at the time of the evidence,” according to the prosecutor’s motion opposing Neasham’s request for a new trial.

But in an interview with InsuranceNewsNet, Abelson said she was not able to show that in court.

“Not necessarily that he knew that she had Alzheimer's or dementia, I couldn't necessarily prove that,” Abelson said. “The son told him, but we couldn't really pinpoint the time. It might have been at the transaction. Of course, I think he [Neasham] denies that he ever knew that she had this diagnosis.”

Full Article and Source:
Prosecutor Admits Not Proving Agent Knew Client Had Dementia

Reimbursements to Victims of Lawyer Theft Bring Fiscal Year Total to Nearly Half a Million Dollars

At its final meeting of fiscal year 2012, the Wisconsin Lawyers’ Fund for Client Protection Committee approved $35,790 in reimbursements to 11 victims of lawyer theft. The committee considered 26 claims, denied 12 claims, and deferred three to its Nov. 9 meeting. The dollar amount sought for the deferred claims totals $9,875.

The Wisconsin Supreme Court established the fund in 1981 to reimburse people who lost money through dishonest acts of Wisconsin attorneys. Reimbursement decisions are made at the discretion of the committee, which meets three times a year.

In this fiscal year (July 1, 2011 – June 30, 2012), the fund approved $463,421 to 31 victims of 16 lawyers. Since its inception in 1981, the fund has approved $5.1 million involving 710 claims and 160 attorneys.

Full Article and Source:
Reimbursements to Victims of Lawyer Theft Bring Fiscal Year Total to Nearly Half a Million Dollars

AL: Madison Co. Judges Seek Changes in Court Operating Procedure

Madison County's judges have asked the local legislative delegation to pass a law expanding their oversight of local court operations.

The proposed change would put the court administrator's office under the supervision of the judges and would reduce the role of Circuit Court Clerk Jane Smith, who pleaded guilty to federal misdemeanor computer charges last week. Diana Bullard is the court administrator.

Presiding Circuit Court Judge Karen Hall said the primary change is shifting supervision of the court administrator from the clerk's office to the judges.

"In February of this year, when the issues related to the Alabama Administrative Office of Courts and Jane Smith were brought to our attention," she said, "the judges of this circuit realized that the management of the courts and the management of the Circuit Clerk's Office needed to be more clearly defined n order for the court system to best serve the citizens of Madison County.

Full Article and Source:
Madison County Judges Seek Changes in Court Operating Procedure

Tuesday, April 3, 2012

NY: State Faults Care for the Disabled

Nearly 300,000 disabled and mentally ill New Yorkers face a “needless risk of harm” because of conflicting regulations, a lack of oversight and even disagreements over what constitutes abuse, according to a draft state report obtained by The New York Times.

In 2010, the number of abuse accusations at large institutions overseen by the State Office for People With Developmental Disabilities outnumbered the beds in those facilities — a sign of trouble in buildings where many of the state’s most vulnerable residents are housed, and where the state has repeatedly had trouble with abusive employees and unexplained injuries and deaths among residents, according to the report.

The report was commissioned by Gov. Andrew M. Cuomo in response to a Times investigation last year into problems of abuse, neglect and fraud in state homes and institutions for the developmentally disabled. A draft of the report began circulating in October, but has not yet been released to the public; people frustrated by the delay separately provided to The Times an executive summary and a bound copy drafted in December.

Full Article and Source:
State Faults Care for the Disabled

Wells Fargo Bank Sued Over Trusts

Barbara Burton Morriss is suing Wells Fargo Bank over the handling of two family trusts that suffered millions of dollars in losses.

Barbara Burton Morriss is the mother of B. Douglas Morriss, the financier and former CEO of the Acartha Group in Clayton. The U.S. Securities and Exchange Commission accused B. Douglas Morriss of defrauding investors in civil charges lodged in January. The SEC alleged B. Douglas Morriss improperly transferred funds from the Acartha Group private equity management company and other investment funds into the Morriss Trust for personal use.

In the lawsuit filed in St. Louis County Circuit Court on March 19, Barbara Burton Morriss of St. Louis County alleges Wells Fargo Bank breached its fiduciary duty by failing to fully disclose financial transactions in the Burton Trust, which had $14 million in assets at one time, and in the Morriss Trust, which $32 million.

Both trusts have suffered a complete loss of value, according to the lawsuit. The lawsuit also alleges funds in both trusts were wrongfully pledged as collateral in risky business ventures. Barbara Burton Morriss was a beneficiary and co-trustee on both of the trusts with her son.

Full Article and Source:
Wells Fargo Bank Sued Over Trusts

MN Woman Ordered to Pay $45K in Restitution in Theft Case

The former financial manager of a residence for developmentally disabled adults was sentenced Friday to 10 years of supervised probation and ordered to pay $45,000 restitution after pleading guilty to the financial exploitation of a vulnerable adult and theft.

Daryl Lyn Lindholm, 50, of Two Harbors pleaded guilty in December to two of the eight crimes she was accused of. She was sentenced by Judge Sally Tarnowski in State District Court in Duluth.

Lindholm was ordered to pay $5,000 of the restitution on Friday. Her probation can be shortened to seven years if she pays the restitution in full within seven years. She must perform 960 hours of community service and be under electronic monitoring for 60 days.

Lindholm was accused of using client money for her gambling and personal use rather than for the basic needs of the vulnerable adults.

As conditions of her probation, the defendant was ordered to have no involvement with the care or fiduciary responsibility of vulnerable adults. She must not enter bars or liquor stores, use alcohol or mood-altering substances and is subject to random testing.

According to the criminal complaint, Lindholm was the financial manager for Covenant Enabling Residences. She was hired on Jan. 24, 2007, as financial assistant and payroll clerk and became financial manager.

Full Article and Source:
Two Harbors Woman Ordered to Pay $45,000 Restitution in Theft Case

Monday, April 2, 2012

The Daniel Gross Case Decision: Standing Up for the Elderly and Infirm

Old age is sometimes described as a “second childhood,” but lawyers for the elderly got a loud and clear warning their clients are not children in the eyes of the law.

That’s the message the Connecticut Supreme Court sent in Daniel Gross v. M. Jodi Rell, a decision emphasizing that attorneys in probate proceedings must heed the wishes of their elderly or infirm clients and not substitute their own judgment about what’s in the client’s best interests.

Lawyers for the elderly who act on their own, the Supreme Court warned, do not enjoy absolute immunity and can be held personally liable for their actions.

In this case, the Supreme Court recognized that placing a person in a conservatorship — as a ward of the Probate Court — “is one of the most serious infringements on personal liberty and autonomy authorized by law.” In this situation, the individual’s life is mightily affected by people in two roles.

One is the probate court-appointed attorney, who represents the person at competency and other types of hearings. The second is a court-appointed conservator — often, but not necessarily, a lawyer — who under court supervision oversees the elderly or infirm person’s economic and physical well-being. In this case, the justices stated clearly, for the first time, how much legal insulation from civil lawsuit liability people in the two roles deserve.

“People have a lot clearer lines than they had a month ago. It’s pretty clear that nobody can say, any more, that a court-appointed lawyer in a conservancy proceeding is the same as a guardian ad litem in family court,” said attorney Sally R. Zanger, who argued for the plaintiffs.

A guardian ad litem’s role is to advocate for the best interests of the child in divorce and custody proceedings, and not necessarily heed the child’s stated preference. But in Gross, said Zanger, the justices “say very clearly, ‘adults are not children.’”

She continued: “It’s a very thoughtful decision, [and] they’re trying to make it really clear that there’s no situation where the lawyer can throw the client under the bus in a conservatorship proceeding. They have to represent what the client is asking for. Deciding the ‘best interests’ is not their problem,” it’s the judge’s problem.

The Supreme Court decided that conservators are immune from civil liability only when their conduct is authorized or approved by the Probate Court. The high court also held that appointed attorneys lack any special immunity. And, in such proceedings, nursing homes have no immunity at all.

The court was filling in unwritten gaps in Connecticut case law at the request of the U.S. Court of Appeals for the Second Circuit. The underlying case dates to 2005, when Long Island resident Daniel Gross was visiting his daughter, Carolyn Dee King, in Waterbury.

Gross, a retired furnace technician, thought he was just briefly passing through Connecticut. He didn’t know he was about to become the poster boy for the legal rights of Connecticut’s elderly. When a leg infection landed him in a Waterbury hospital, a nurse asked for Probate Court help in having Gross moved to a nursing home. Probate Judge Thomas Brunnock appointed Waterbury lawyer Jonathan Newman to visit Gross in late August 2005.

Locked Ward

Attorney Newman reported that Gross seemed alert and intelligent, and opposed having a conservator. But Newman said he saw no reason to oppose the hospital’s recommendation that Gross become a ward of probate. On Sept. 1, 2005, Brunnock appointed Naugatuck lawyer Kathleen Donovan to be the conservator of Gross’ person and affairs. A week or two later, according to court pleadings, Donovan placed Gross in the locked ward of Grove Manor Nursing Home in Waterbury, where his roommate was a once-infamous robber who allegedly assaulted him.

At one point, Gross was authorized to take a one-day visit to his hometown in New York. During the trip, Gross was hospitalized briefly, and attorney Donovan went to Long Island with an ambulance and returned him to Grove Manor against his and his doctor’s wishes, the court records state.

Gross requested a habeus hearing, which was held before Waterbury Superior Court Judge Trial Referee Joseph T. Gormley Jr. Gormley would later write that the case “completely blows my mind” because Gross was so poorly represented. He set Gross free, ruling that because Gross was a non-resident, the Connecticut probate system had no jurisdiction.

Gross sued then-Governor M. Jodi Rell, the lawyers and the nursing home under federal civil rights law, and under state law for negligent and intentional infliction of emotional distress, breach of fiduciary duty, false arrest, assault and false imprisonment.

U.S. District Judge Vanessa Bryant dismissed most of the claims after making unusually broad findings of quasi-judicial immunity – a doctrine that protects from civil liability people like prosecutors and others who are integral to the judicial process. Bryant then found the remaining claims didn’t add up to the $75,000 federal court jurisdictional minimum and dismissed the case.

The matter was appealed to the Second Circuit, which found Connecticut’s laws lack sufficient guidance on the issue of quasi-judicial immunity for conservators, court-appointed lawyers for the elderly and the nursing home defendant. It asked the state’s top court to explain.

Gross’s daughter, King, continued the case after her father’s death in 2007. She was represented by Zanger and Thomas Behrendt, of the Connecticut Legal Rights Project in Middletown. Behrendt called the recent Supreme Court ruling “a great decision. It really hammers on the fact that lawyers are accountable, [and] sends a really clear message about the dignity and respect to which our elder clients are entitled.”

Full Article and Source:
Standing Up for the Elderly and Infirm

Omaha Alzheimer's Facility Evicting Resident

An Alzheimer’s care facility served a resident more than food and medicine. The 81-year-old Alzheimer’s patient received eviction papers.

The resident’s wife Nancy Shiu said, “They want to kick out an incapacitated person.” Edgewood Vista in west Omaha advertises the facility cares for Alzheimer’s patients. However in court papers the lawyer for the facility alleges Donald Shiu has shown uncontrolled aggressive behavior. Nancy Shiu said “Donald is guilty of yelling and raising his voice when the doesn’t think things are correct but he’s no danger.”

Nancy said her husband is reacting to other Alzheimer’s patients who wander into his room which can’t be locked for safety reasons.

Nancy said she can no longer afford private pay and her husband qualifies for Medicaid payment to the facility. Whether that plays apart in the eviction she can only speculate.

A court hearing on the eviction is scheduled for next week.

Full Article, Video, and Source:
Alzheimer's Facility Evicting Resident

Sunday, April 1, 2012

TN Panel to Judge Judges Gets Overhaul

The Tennessee Senate has voted to replace a panel that oversees judges - one that has been criticized in the past several years for being too secretive and too lenient on judges.

If you have a complaint about the way a judge handled your case, you can turn to a group called the Court of the Judiciary to investigate. But for years, people like Ginger Franklin have complained the process is broken.

"It seems to me, to be a bunch of judges overseeing a bunch of judges. Is that the fox guarding the hen house?" Franklin says.

The Court of the Judiciary meets in secret. It rarely punishes judges - it has only suspended one judge in two years - and the cases drag on and on.

"A year and a half later, nothing is settled," Franklin says.

Franklin filed a complaint against Judge Randy Kennedy. He appointed a conservator to control her life after she tumbled down the stairs and had a brain injury. Franklin filed a complaint that Kennedy didn't appoint an attorney for her, like he was supposed to. Before she knew it, her conservator had sold off everything she owned. Her house was auctioned for $36,000.

"My townhouse was emptied. My bank accounts were cleared out. My car was gone. I was liquidated," Franklin says. "And he signed off on everything that was done."

The Court of the Judiciary received 703 complaints against judges over a two-year period. Only one of the judges was suspended. Nine received public reprimands.

Over the past year, legislators like Sen. Mae Beavers have worked to overhaul the system.

"Judges are elected officials. And if there's a problem, I think the public needs to know it," Beavers said in September.

The Senate reforms are designed to make it easier for people filing complaints. It also changes the makeup of the board; and for the first time, the board's rulings are more transparent. They have to make monthly and quarterly reports to the legislature. The bill now goes to the House.

Source: (Note: This article is reprinted in its entirety)
Panel to Judge Judges Gets Overhaul

Rosa Parks' Relatives Ask Judge to Protect Property Claim

A lawyer for Parks' 15 nieces and nephews has asked Probate Judge Freddie Burton Jr. to require Elaine Steele and Adam Shakoor -- whom Burton recently put back in charge of the estate -- to post an $8-million surety bond to protect Parks' relatives against any misconduct.

"Due to the continuing litigation and the history of this case ... the heirs are apprehensive that the fair, true and just administration of this estate and trust may be compromised in a manner that will be detrimental to their interests," their lawyer, Lawrence Pepper, said in a court filing.

Pepper said Parks' relatives fear that Steele and Shakoor might dispose of Parks' valuable property without their consent. Steele was Parks' assistant and caregiver, and Shakoor is a retired 36th District Court judge.

Steele's lawyer, Steven G. Cohen, urged Burton to reject the request. Cohen said Pepper intentionally overstated the value of Parks' possessions "in order to set an artificially high bond that will be extraordinarily difficult if not impossible for Steele and Shakoor to obtain."

Full Article and Source:
Rosa Parks' Relatives Ask Judge to Protect Property Claim

See Also:
Rosa Parks Estate Battle Ruled

Mary Todd Lincoln Insanity Case to be 'Retried' This Fall

Former First Lady Mary Todd Lincoln, wife of Abraham Lincoln, will be "retried" for insanity this fall in Illinois.

According to the Associated Press, the retrial reenactment events will be sponsored by the Illinois Supreme Court Historic Preservation Commission in conjunction with Springfield's Abraham Lincoln Presidential Library and Museum.

Mrs. Lincoln was initially tried, at the request of her son Robert, on allegations that she was insane in 1875, a decade after her husband's death, GateHouse News Services reports. Lincoln was declared a "lunatic" and brought to Bellevue Sanitarium in Batavia, Ill. A second jury considering the matter later considered her sane and historians have long disagreed over whether Lincoln would be deemed insane under today's health laws.

The events will kick off with an April 16 roundtable discussion addressing Lincoln's life and mental health issues and taking a modern-day look on her insanity trial. Retrials, utilizing modern-day lawyers and judges considering actors playing Robert and Mary Lincoln in period costumes, will be held Sept. 24 at Murphy Auditorium, 50 East Erie St. in Chicago, and Oct. 1 at the Lincoln museum in Springfield.

The audience at the two retrials will act as judges, determining whether, based on the expert testimony, they believe Lincoln was sane.

Full Article and Source:
Mary Todd Lincoln Insanity Case to be 'Retried' This Fall