Saturday, August 17, 2013

Nursing Home Reality Blog

A visitor to this blog shared the following comment a few days ago. I think her comment speaks directly to the issue of corporate greed and that leads to both the neglect of nursing home residents as well as mistreatment of nursing staff. A nurse wrote:

"At one time I worked in a nursing home that was so understaffed that I dreaded work every day. I provided care to 24 residents at one time (on a unit with a total of 48 residents).

On my shift there were just two CNAs and two nurses for 48 residents.

One time I was forced to work while having the flu and a 102 degree fever. Management told me that I would be fired if I didn’t report to work and they would demand the state revoke my licence for abandonment. It is really sad what happens in these nursing homes.”


Medication May Cause Elderly to Become Frail

The cocktail of drugs commonly prescribed to older people could be hastening their ageing, according to experts who say despite the risks of over-medication the problem is getting worse.
An analysis of patients in one hospital has found more than 60 per cent were being prescribed potentially dangerous medications.

There is [also] the potential for battery or medical negligence cases to be brought.

Full Article and Source:
Medication May Cause Elderly to Become Frail

Friday, August 16, 2013

Guardianship cases can turn into nightmares for wards and their families

Rita Denmark, 82, walking on the beach
 in New Smyrna Beach, Fla., in 2009.
 For the past five years, Rita, a lifelong
 Pennsylvanian, has been a
ward of a Florida guardian.
(Photo courtesy of Holly Peffer
for Public Source)
Maybe you know an older person suffering from Alzheimer's or an adult who is intellectually disabled. In the best cases, a family member or friend will agree to care for people in these vulnerable situations. But when family conflicts come into play, the case can go to what's known as guardianship—the courts assign someone to care for that person.

Things can get very ugly very quickly.

Holly Peffer had recently bought a new house in Derrick City, Pa., in 2007, when her life was upended.

"We bought a huge, beautiful, beautiful old home with several acres," Peffer said. She was preparing to care for her elderly mother, Rita Demark, who was in the early stages of dementia.

"She was physically very, very healthy," Peffer said. "She walked miles a day. But she had some memory issues. She couldn't remember what she had for lunch. She loved the outdoors and the four seasons in Pennsylvania. She was born and raised in Pennsylvania and domiciled here her entire life."
Peffer maintained contact with her sister, who sometimes cared for their mother, though according to Holly, her sister took liberties.

"My sister and my mother are very, very close, and my sister would never physically harm my mother, but as mom's memory had gotten worse, because my sister was having some financial, many financial difficulties, she was taking more and more and more from my mom," Peffer recalled. "You know, there were some checks missing, and very obvious forgeries for maybe a couple hundred dollars, there was one for $2,000."

A worker from the Department of Aging suggested that Peffer apply for guardianship over her mother to keep money from disappearing. That process involves a hearing before a judge. But when the day of the hearing came, Peffer got an urgent call from her mom's banker.

"She says, 'Holly, what the hell is going on?' I said 'I don't know, why, what are you talking about?'"

The bank had just received a fax that her power of attorney for her mother had been rescinded. The fax came from Holly's estranged brother in Florida.  Her sister had whisked their mother down south and quickly petitioned so a professional guardian named Jetta Getty would control the mother's future. Peffer said the Florida court never asked whether Rita Denmark was even a Florida resident.

Full Article and Source:
Guardianship cases can turn into nightmares for wards and their families


If you are in guardianship/conservatorship litigation, or about to enter litigation, the first thing to do is read and devour the guardianship/conservatorship laws of your state. You may think it's your attorney's job to know, advise, and take care of you. After all, that's what you're paying dearly for.

But here's the reality: attorneys get paid whether they win or lose your case. Most want to win, of course, because of dedication, compassion, pride, or ego, But, if you lose, you still pay your attorney. You both go to the bank - you to make a withdrawal, your attorney to make a deposit!

And attorneys make mega bucks by taking on lots of cases. They juggle their expanding caseload and give minimal attention to the cases in the forefront, saving maximum attention for litigation. To you, there is only one case in the world; to your attorney, you're one of many in the stack.

Because it's your case, and because guardianship/conservatorship many times involves life and death, it's to your advantage to know as much about guardianship/conservatorship law as your attorney. All guardianships, for instance, by law must contain certain aspects of due process, including notice to the AIP (alleged incompetent person), a hearing to determine incompetency, etc. If you know there was no incompetency hearing in your case, as an example, then you've got something to shout about! A jurisdictional issue can have the whole case thrown out of court and end your nightmare!

So, don't count solely on your attorney. Count on you!

Not all attorneys are bad. Many take pride in their profession and pour their heart and soul into their caseload. Still, many attorneys are members of the "good old boy's club" or "incest club." Sometimes, they work for the guardian - sometimes they work for you. Sometimes they work for each other by trading or referring clients. If you familiarize yourself with the state statutes, and your attorney feeds you a line, you'll taste baloney.

NASGA:  Know Your Rights!

DPS sergeant fired for 'dishonety'

Aug 15, 2013 5:09 p.m.

A Department of Public Safety Sergeant has been fired after more than 15 years on the job.

DPS spokesman Bart Graves says Sgt. Terry Lincoln has been fired for dishonesty.

Officials say her termination is linked to an on-going criminal fraud investigation with the Payson Police Department.

Payson Police Chief Donald Engler said Lincoln has been under investigation since 2011. Investigators are looking into potential financial abuse of vulnerable adults.

Full Article and Source:
DPS sergeant fired for 'dishonety'

Thursday, August 15, 2013

Unclean Hands: Suing for Defamation

Rebecca Schultz must have really touched a nerve when she removed her wealthy father from Jared E. Shafer's "guardianship" back in September 2010.

In circumstances when an older wealthy married couple decide to retire to another state far away from their family, and then a spouse dies, a horrifying chain of events can occur.

In the case of Guadalupe Olvera, soon after re-locating to Sun City in Henderson, Nevada from their home in California, Carmela Olvera suddenly died. Based on Mr. Olvera's multiple physical disabilities and his desire to stay in Nevada until his paid-for half million dollar home could be sold and his other financial affairs settled, Nevada law required that he be evaluated to make sure he was mentally and physically capable of handling his own affairs. In the absence of a relative living in Nevada, the clerk for Clark County Family Court Judge Jon Norheim recommended private guardian Jared E. Shafer be hired as temporary guardian over Olvera's person and finances. The guardianship was supposed to be temporary and last only until Olvera's financial arrangements were in order, but in opposition to Olvera's wishes and the court pleadings of his only child Rebecca Schultz, the "guardianship" dragged on and on for over two years while Shafer bled Olvera's trust and bank account of over $300,000.

After careful research, I discovered that the granting of Guadalupe Olvera's wish to forcefully terminate Shafer's "guardianship" and move back with his family was the first time one of Shafer's "wards" has ever defied his unlimited power over their person and estate and escaped from his custody. In all other cases I investigated, Shafer defeated all attempts by family members to terminate him by convincing Clark County Family Court judges like Norheim that the relative was either a financial "exploiter," or "unfit" to be their loved one's legal guardian.

But Jared Shafer was not finished with the Olvera family. Three years after Guadalupe moved back home, Shafer filed a libel law suit against Rebecca claiming she authored anonymous Internet reports that damaged his and his cronies' reputations. He did so without any proof Schultz authored the reports. Many believe Shafer's libel suit was meant to send a message to the families of his other "wards" to not challenge his authority.

I view his baseless lawsuit against Schultz as a perfect example of a SLAPP suit (strategic lawsuit against public participation) meant to silence future exposés of his highly questionable business practices.

Full Article and Source:
Unclean Hands:  Suing for Defamation

See Also:
NASGA:  Great Escapes: Jared E. Shafer Loses Guardianship, Looted Senior Citizen Returns to Claim Home and Possessions After Winning Termination in a Bitter Sweet Victory

Worse Than Paying Taxes? Paying Someone Else's---And IRS Can Make You Do It

Can the IRS collect someone else’s taxes from youIn some cases, yes, where you end up with assets or money from that person. You may have a right to the assets or money, but the IRS trumps you. The IRS calls it transferee liability and says ‘show me the money.’

Take Joseph L. Mangiardi, who died in 2000. Lots of money was spent on lawyers in this mess. I noted earlier court cases in this same tax kerfuffle here: Paying Taxes Pennies On The Dollar. Mangiardi’s daughter Maureen was co-executor of her dad’s estate. When she filed the estate tax return in 2001, the tax due totaled about $2.5M.

The estate was mostly stock and a retirement account, but there was plenty of value so there should have been no problem. Stock prices were low, so it made sense to let them rebound before selling. The estate asked for time and the IRS said sure. The IRS and heirs would both do fine.

You can guess what happened. Instead of waiting for stock prices to rebound, the executors must have thought they were Gordon Gekko. They engaged in active trading of securities, buying and selling. Unfortunately, they weren’t Gordon Gekko and lost money. That was bad enough.

But like Gordon Gekko, the executors were paying themselves hundreds of thousands of dollars in fees. The IRS got pretty annoyed. The IRS first went after the estate but found it was insolvent. Meanwhile, the tax debt had ballooned to over $3 million. See U.S. v. Mangiardi.

Full Article and Source:
Worse Than Paying Taxes? Paying Someone Else's---And IRS Can Make You Do It

Wednesday, August 14, 2013

State court of appeals reverses ruling that prevented guardians from ordering their wards from life support

Legal guardians have the authority to order their wards to be disconnected from life support, according to a state Court of Appeals ruling Monday that said the end-of-life decision shouldn’t be dictated by the courts. 

“This supports our position that guardians don’t need to go back to court to get consent to terminate life support,” said Charles Singer, the attorney for the professional guardian appointed for Jeffers Tschumy, the man at the center of the case. “We’ve been operating under that assumption for 30 years.”
Monday’s decision overturns a Hennepin County District Court ruling that said end-of-life decisions are too important to be made by a guardian most likely appointed years before to handle matters of daily living.
Minnesota has 12,000-plus wards; the decision could affect those who don’t have health care directives in place spelling out their end-of-life decisions. It is the first time such an issue has been addressed in the state courts.
Tschumy, 57, was mentally disabled and living in a group home under the guardianship of Joseph Vogel since 2008. In April 2011, he choked on food and was declared severely brain damaged with little hope for recovery.

Full Article and Source:
State court of appeals reverses ruling that prevented guardians from ordering their wards from life support

Editorial: Bill that cloaks judicial discipline process is wrong

Something smells bad in Raleigh regarding legislation the General Assembly passed in its closing hours that closes to public view the discipline process for state judges.

The bill concentrates power for disciplining these judges in the hands of the N.C. Supreme Court, taking that power away from the Judicial Standards Commission, a more diverse group that includes judges, lawyers and layman citizens.

Furthermore, the bill passed even though it had been soundly defeated in the state Senate a week before the legislature went home, only to be resurrected in the session’s closing hours and approved with the votes of many senators who had spoken forcefully against it only days before.

Gov. McCrory should take the advice of the state Bar Association and veto this bill. We’re sure, now that the bill has been widely reported on by the state’s news media, that the legislature will not dare try to override this stinker.

Full Article and Source:
Editorial: Bill that cloaks judicial discipline process is wrong

See Also:
New laws mean changes for judges, elections

Fresh fraud charges for ex-Morris County investment adviser

A former Morris County woman previously accused of bilking clients of her unregistered investment advisory firm has been hit with a fresh set of theft and fraud charges, the state Attorney General’s Office said today.

And among Janet Fooshee’s alleged victims was a retirement community where she allegedly volunteered as a bookkeeper, officials said.

A grand jury on Monday indicted Fooshee, 61, now of Maine, on charges that she stole more than $150,000 from the accounts of both her advisory firm’s clients and the retirement community, where she worked pro bono. Authorities say she put this money into the accounts of other clients in an effort to cover up their financial losses.

Full Article and Source:
Fresh fraud charges for ex-Morris County investment adviser

Tuesday, August 13, 2013

'Bad mothering' attorney faces state discipline

Court ruled Barrington lawyer bilked client of $500,000

An attorney who once helped his adult children sue their mother for emotional damages because of a poorly chosen birthday card and a subpar homecoming dress now faces disciplinary action for writing the same two children into an elderly client's will and allegedly stealing nearly $500,000 from the client's estate.

Steven Miner, a Barrington attorney who filed a "bad mothering" lawsuit against his ex-wife on behalf of his son and daughter in 2009, is accused by Illinois' attorney disciplinary body of violating attorney rules by drafting a will for a client that benefited Miner's own family as well as stealing money from the client.

His attorney, George Collins, said Miner denies the disciplinary charges and plans to contest them.
"He didn't steal any money," Collins said. "He didn't do anything wrong."

The disciplinary matter arose from Miner's relationship with client Glenn Burren that dated to the 1970s. Miner dated Burren's daughter for a time, and later Burren dated Miner's mother, according to an appeals court ruling. Miner remained close with Burren, calling him "Pops," the court said.

In 2004, Burren signed a typewritten will handed to him by Miner after attending a birthday party for Miner's son, according to the ruling. Under the will, 40 percent of Burren's estate went to Miner's two children and the rest to Burren's three children, the court said.

Later, Burren signed papers giving Miner power of attorney and handed over to the lawyer checks totaling nearly $500,000.

After Burren's death in 2007, his children contested the will filed by Miner and later took the attorney to court to recover the $500,000 that had vanished from their father's estate.

Miner told a Cook County judge that he cashed the checks at his bank and then returned the cash to Burren, but Judge Susan Coleman didn't buy it, saying Miner had presented "no independent credible evidence" that he returned the money.

The judge ordered Miner to repay the estate nearly $500,000 plus more than $200,000 in interest. An appeals court recently upheld that ruling.

Miner was previously disciplined by the state in 1998 after forging the names of the children of a client on a property deed and instructing his wife to notarize it.

Full Article and Source:
'Bad mothering' attorney faces state discipline

N.C. lawyers oppose increased secrecy in disciplining judges

The groups who say they were ambushed by the N.C. legislature this year have new members: some of the state’s most prominent judges and leaders of the legal community.

Judges and lawyers normally fare well in dealings with the General Assembly.  But many of them have publicly mobilized against a last-minute Republican bill that would change how North Carolina disciplines its jurists.

This week, and for the first time in its history, the North Carolina Bar Association asked a governor to veto a bill.

On Wednesday, more than two dozen of the group’s former presidents, including seven from Charlotte, followed up with a letter to Gov. Pat McCrory asking him to block the changes. It was sent to Bob Stevens, McCrory’s legal counsel and past president of the Mecklenburg Bar.

The bill’s supporters, which includes most Republicans in the General Assembly, say it streamlines certain procedures and puts more disciplinary authority where it belongs, with the Supreme Court.

That includes giving the state’s high court authority to punish its own members. Critics, however, say the bill shrouds in secrecy what is now a substantially public process, undermining trust. By consolidating disciplinary authority with the Supreme Court, they say, it increases the odds for conflicts of interest and sets North Carolina up for potential partisan embarrassments that have hit other states.

John Wester, a Charlotte attorney and past state bar association president, said the importance of the debate extends beyond courtrooms and law offices.

“We underestimate the authority that our system gives to our judges,” Wester said. “It’s a great blessing that we’ve had judges with impeccable integrity. But when there’s an exception, we have to have a reliable process that the public can believe in.”

Full Article and Source:
N.C. lawyers oppose increased secrecy in disciplining judges

Burleigh to share in guardianship costs for adults

BISMARCK, N.D. - The Burleigh County Commission earlier this month approved pooling with the North Dakota Association of Counties to help fund a short-term program for public guardians of incapacitated adults.

In the joint powers agreement, commissioners agreed on Aug. 5 to set up a two-year funding source by collecting a special one-tenth of one mill in property taxes. The fund is intended to help pay for supervision of adults with limitations who live below the poverty level and who have no family supervision.

Through House Bill 1041, the 2013 Legislature approved giving $828,600 to the state Office of Management and Budget to start taking over the costs of guardianships from counties. The bill’s intent is that the state will take over the entire costs of the program in two years, but that will require final Legislative action in 2015.

In the meantime, counties are being asked to pay half the cost for all public guardians assigned before July 1, 2013 through the partial mill levy. The state has asked that the North Dakota Association of Counties collect the counties’ half. The balance will be paid for by a state grant through 2015.

Each of the 53 counties in the state is being asked to each contribute the one-tenth of a county mill for two years to help pay for the guardians.

Burleigh County’s partial mill levy will generate about $31,500 for the program. The county is now paying a contracted private company -Guardian and Protective Services Inc. - $27,000 to supervise incapacitated adults and partially waives rental space at the county-owned Provident Building for the company’s offices.

A guardian for an incapacitated adult handles their financial dealings, has power of attorney, ensures they are taking care of themselves and does other needed paperwork for the individual, said Terry Traynor of the North Dakota Association of Counties.

Traynor said the said the county association was asked by the state to organize an insurance-type program to help fund the guardianship fund.

He said the new state law now also requires that all guardians of adults receive formal training, that professionals, social workers, doctors and attorneys report suspected abuse or exploitation of incapacitated adults, and creates more funding for guardians of adults.

Full Article and Source:
Burleigh to share in guardianship costs for adults

Monday, August 12, 2013

Linda Kincaid Reports: CMS Reminder: Access and Visitation Rights in long-term care

July 15, 2013
Center for Medicare Services (CMS) took a giant leap toward curbing elder abuse and protecting personal rights of long term care residents. On June 28, 2013, CMS issued the following “reminder” to State Survey Agency Directors.

The Centers for Medicare & Medicaid Services is issuing a reminder of current regulations and Guidance to Surveyors (Interpretive Guidelines) at 42 CFR, Part 483.10(j), F172, Access and Visitation Rights. This Guidance delineates the rights of LTC residents to receive family and non-family visitors. Facilities must provide 24-hour access to all individuals visiting with the consent of the resident.
Although prohibited by state and federal law, many long term care facilities deny their residents the right to have visitors. Some facilities deny all visitors, phone calls, and mail.

In San Bernardino County, California, Wildwood Canyon Villa isolated Jean Swope for fifteen months. Jean’s right to visitation was restored by a restraining order against isolation. That effort cost family $70K in legal fees.
Full Article and Source:
CMS Reminder: Access and Visitation Rights in long-term care

Luzerne caregiver accused of taking at least $258K from elderly woman

A Luzerne woman is facing theft charges after prosecutors say she stole more than a quarter-million dollars from an elderly woman for whom she was supposed to be caring.

Sharon Mae Jacobosky, 70, is charged with three counts of theft by failure to make required disposition of funds received.

According to the Luzerne County District Attorney's Office, Dallas Borough police began investigating Jacobosky after getting a complaint that she was taking money for her own benefit. At the time, Jacobosky was the caregiver and had power of attorney for Clementine Moseman, according to prosecutors.

The Institute on Protective Services at Temple University conducted a forensic audit on accounts owned by Moseman and her daughter, Pamela Wehrenberg, prosecutors said.

The audit revealed Jacobosky had taken $258,538 between Jan. 1, 2009, and Nov. 4, 2011, according to prosecutors.

"An overwhelming number of cases of elder abuse, neglect and financial exploitation go undetected each year," District Attorney Stefanie Salavantis said in a statement. "Unfortunately, some of these vulnerable adults are abused by family members, service providers and caregivers."

Full Article and Source:
Luzerne caregiver accused of taking at least $258K from elderly woman

Man on probation for exploiting the elderly is arrested again in Davie

A man serving 15 years probation for exploiting the elderly found himself back in a Broward jail cell Thursday accused of taking advantage of another elderly man, court records showed.

John Quick, 52, was charged with exploitation of the elderly for stopping a 91-year-old man at a traffic light in Davie and offering to do some car repairs, according to the police report.

Broward Judge John "Jay" Hurley increased Quick's bond to $26,000 for the new charges and denied bond for the probation violation.

"You're on probation for 15 years beginning in 2005 for exploiting the elderly," Hurley said. "And now, it says in April of this year you were at a traffic light in Davie and you allegedly found a victim who was 91-years-old who had infirmities from aging, including [poor] vision and a heart condition."

Arrest records read in court said Quick offered to do some auto body work on the man's car. He charged $825 initially but went back a couple of days later for $125 and later charged $165 without completing the work he promised.

"You basically, allegedly, took advantage of this man because of his age," the judge said.

Full Article and Source:
Man on probation for exploiting the elderly is arrested again in Davie

Sunday, August 11, 2013

Tonight on T.S. Radio: Minnesota Courts Sanction Guardian Ordered End of Life

In what has to be a predatory guardian's wish list come true, the Hennepin County District Court of Appeals, just sanctioned the ending of inconvenient lives on behalf of the guardians.

Claiming in their opinion that the statutes somehow magically indicated that the guardians had this right as an extension of their total control of the victim, was a direct assault on the rights of families and individuals.

After reading the statutes cited by the court and their statements to the effect that they had considered all pertinent statutes, how this court concluded that a guardian had an otherwise unrecognized right to end the life of an individual, is beyond me.

Claiming this decision would be the result of consulting with family members and medical personnel, had to have been a joke. Anyone exposed to the corruption of the probate/guardian system knows that the family is immediately cut out of the picture and is not consulted about anything. In most cases, the family is not even informed of any decisions.

The Court made special mention of the notion that it might be too emotional, or financially a burden for the family, to allow the victim to continue on.

The translation for this is: The estate has been depleted by guardians, attorneys and anyone else who could get their hooks in it. Insurance has reached its limits and Medicare/Medicaid will not pay any more. 14,000 individuals have been placed under guardian/conservator status in Minnesota. The massive transfer of personal assets to the guardian from the estate of the victim, can now be brought to a final end by ending the life of the victim..... without court permission or intervention.

What is YOUR life worth?

5:00 pm PST … 6:00 pm MST7:00 pm CST … 8:00 pm EST

LISTEN LIVE or listen to the archive later

See Also:
Guardians Can Order End of Life Support

Jenny Hatch in her new life

NEWPORT NEWS, Va. (WAVY) - brings you an update on Jenny Hatch, a 29-year-old Newport News woman with Down Syndrome, who won a custody battle last week.
For the last year, Jenny’s been engaged in a lengthy court battle against her mother who wants her to live in a group home. Jenny wants to live with her friends Jim Talbert and Kelly Morris, who want to take her in.
On Friday, was there when Newport News Judge Pugh gave Jenny the right to live where she wants to. Morris and Talbert were granted temporary guardianship of Jenny, but after a year, she can make her own decisions.
"It feels awesome," said Morris at home with Jenny on Wednesday. "Our family is complete."
WAVY's Andy Fox caught up with Jenny at home with her friends Wednesday and then shadowed her on her first day back at work at the Villiage Thrift Store after court proceedings ended.

It's when you ask Jenny about her thrift store family that she gets emotional.
I'm so happy. I am so happy...," Jenny said Wednesday through emotional sobs. "Thanks for being here...I am finally home."

Full Article and Source:
Jenny Hatch in her new life

See Also:
Disability Is No Excuse to Deprive One of Civil Liberties

Couple wins custody of Jenny Hatch

Jenny Hatch's courtroom battle continues

Jenny Hatch shouldn’t be treated as a prisoner

Elderly Abused at 1 in 3 Nursing Homes: Report

Reports of serious, physical, sexual and verbal abuse are "numerous" among the nation's nursing homes, according to a congressional report released today.

The study, prepared by the minority (Democratic and Independent) staff of the Special Investigations Division of the House Government Reform Committee, finds that 30 percent of nursing homes in the United States — 5,283 facilities — were cited for almost 9,000 instances of abuse over a recent two-year period, from January 1999 to January 2001.

Common problems included untreated bedsores, inadequate medical care, malnutrition, dehydration, preventable accidents, and inadequate sanitation and hygiene, the report said.

Many of the abuse violations caused harm to the residents, the report said.

In 1,601 cases, the abuse violations were serious enough "to cause actual harm to residents or to place the residents in immediate jeopardy of death or serious injury," it said.

"What we have found is shocking," says Rep. Henry Waxman, D-Calif., the committee's minority leader, who instructed the staff to do the study.

Full Article and Source:
Elderly Abused at 1 in 3 Nursing Homes: Report