Saturday, December 13, 2014

Linda Kincaid Reports: Court appointed attorney may have investigated sexual assault at wrong facility

Linda Kincaid
Documents filed with San Bernardino County Court indicate a court appointed attorney may have investigated elder abuse and sexual assault of an elderly woman at the wrong long-term care facility. The attorney is seeking payment totaling about $200K from the woman's estate.

An October 11, 2013 Petition for Attorney Fees by Court Appointed Counsel establishes the duties of the court appointed attorney.

Petitioner, MARK J. ANDREW FLORY, court appointed attorney for the conservatee herein, after rendering legal services necessary in representation of the conservatee’s person and estate, alleges:
1. Court Appointment: On August 9, 2010, the court appointed the petitioner as counsel for the conservatee herein.

Court appointed attorney investigated elder abuse, sexual assault at wrong facility-slide0
The petition includes a request for attorney fees to be paid to Mark Flory from the conservatee’s estate. Page one of Flory's invoice shows that Flory collected $70,758.75 from the conservatee’s estate prior to June 30, 2012. The October 11, 2013 petition requests an additional $83,306.00 from the conservatee’s estate.

The conservatee’s family objected to Flory’s request for fees, alleging that Flory opposed the conservatee’s right to have visitors and opposed the conservatee’s right to have routine medical care. Flory also opposed the conservatee moving out of Wildwood Canyon Villa, an assisted living facility where records establish that she was forcibly isolated and chemically restrained with anti-psychotic drugs. Records also contain many indicators of long-term sexual abuse by a male caregiver at Wildwood.

In March 2013, family’s legal counsel asked Flory to investigate possible sexual abuse at Wildwood Canyon Villa. For nearly a year, there was no indication that Flory conducted any investigation. Then Flory’s February 6, 2014 Response to Objections indicates he may have investigated the wrong facility.
Kincaid alleges that while Carol Hahn was at Braswell’s Hampton Manor an incident of possible sexual abuse occurred and that Counsel for Linda Kincaid ask [sic] Mr. Flory to investigate. Mr. Flory did make a reasonable investigation. There was no evidence of any kind of abuse.
If Flory investigated Braswell’s Hampton Manor, then it is unlikely he identified any indicators of sexual abuse. The indicators of sexual abuse were contained in records from spring 2011 to summer 2012, when the conservatee resided at Wildwood Canyon Villa. The strongest indicators of sexual abuse were in records from July and August 2012. 

Wildwood Canyon Villa evicted the conservatee in early September 2012, and she transferred to Braswell’s Hampton Manor. There were no further indicators of sexual abuse after the conservatee was allowed to leave Wildwood.

Legal counsel for the conservatee’s family served a deposition subpoena on the male caregiver who worked night shift at Wildwood in spring 2011 through summer 2012. On November 6, 2014, legal counsel for Wildwood Canyon Villa filed the following objection.
Respondent objects to the Notice and subpoena and to providing any testimony to the extent that it violates his rights under the Fifth Amendment of the U.S. Constitution;
Legal counsel for the conservatee’s family took the deposition of the male caregiver on November 20, 2014. The deposition of the alleged abuser took place in the law office where Flory is currently employed. Flory did not attend the deposition, nor did he show any interest in the deposition.

Flory indicated that he will seek additional “fees on fees” in the amount of about $50K from the conservatee’s estate. In total, Flory is seeking about $200K for his “services” to the conservatee.

Full Article & Source:
Court appointed attorney may have investigated sexual assault at wrong facility

Woman pleads guilty to financial exploitation

A former area resident accused of spending more than $100,000 of someone else's money has pleaded guilty to felony financial exploitation of a vulnerable adult.

In exchange, the court dismissed an identical exploitation charge and a single felony count of theft by swindle against Ashley Loraine Marschel, formerly known as Ashley Dotzenrod.

Marschel, 28, of Apple Valley, entered an Alford plea of guilty Friday in Olmsted County District Court. The plea means Marschel maintains her innocence, but acknowledges that the evidence would be sufficient to convict her.

Sentencing was set for Feb. 12.

The investigation began Sept. 27, when police were told by a Rochester financial institution that Marschel had deposited about $50,000 in checks written on the alleged victim's account into her own checking account. The victim is described in the criminal complaint as having "significant difficulty in speech and motor movements," as well as having seizures, all the result of a stroke several years ago.

The man requires the assistance of others for basic needs, and has a power of attorney to assist in financial matters, the report says, classifying him as a functional vulnerable adult.

In January 2011, the man named Marschel as his power of attorney; in May 2011, Marschel opened a joint savings account with the man.

According to the criminal complaint, the victim's former power of attorney said the victim was "frugal" and was "aware of Marschel's spending habits." The man set up the financial arrangement so if Marschel was going to be paid, he would have to write her the check. Since 2009, only one check has been written to Marschel, the records show.

When investigators spoke to the man in October 2013, he said Marschel "screwed me and stole my money."

Records obtained by law enforcement indicate Marschel made 143 transactions involving the victim's bank account from January 2011 to October 2013, for a total of more than $92,000.

Prior to January 2012, a credit card in the man's name was paid in full every month, the complaint says. From January 2012 to October 2013, records showed Marschel used the card 14 times, with purchases totaling about $11,800.

The man told investigators he hadn't given Marschel consent to use the card.

The combined check and credit card activity totals $103,864.

Full Article & Source: 
Woman pleads guilty to financial exploitation

Friday, December 12, 2014

Can a Wife With Dementia Say Yes to Sex?

Donna Lou Young and Henry V. Rayhons

More than 350 people attended the wedding reception of Donna Lou Young and Henry V. Rayhons in Duncan, Iowa, on Dec. 15, 2007. Family and friends ate pork roast and danced polkas to celebrate the union of a widow and a widower, both in their 70s, who had found unexpected love after the deaths of their long-time spouses.

For the next six-and-a-half years, Henry and Donna Rayhons were inseparable. She sat near him in the state House chamber while he worked as a Republican legislator. He helped with her beekeeping. She rode alongside him in a combine as he harvested corn and soybeans on his 700 acres in northern Iowa. They sang in the choir at Sunday Mass.

“We just loved being together,” Henry Rayhons says.

Today, he’s awaiting trial on a felony charge that he raped Donna at a nursing home where she was living. The Iowa Attorney General’s office says Rayhons had intercourse with his wife when she lacked the mental capacity to consent because she had Alzheimer’s. She died on Aug. 8, four days short of her 79th birthday, of complications from the disease. One week later, Rayhons, 78, was arrested. He pleaded not guilty.

To convict Rayhons, prosecutors must first convince a jury that a sex act occurred in his wife’s room at the Concord Care Center in Garner, Iowa, on May 23. If prosecutors prove that, his guilt or innocence will turn on whether Donna wanted sex or not, and whether her dementia prevented her from making that judgment and communicating her wishes.

The State of Iowa vs. Henry Rayhons offers a rare look into a complex and thinly explored dilemma that will arise with increasing frequency as the 65-and-over population expands and the number of people with dementia grows. It suggests how ill-equipped nursing homes and law enforcement agencies are to deal with the nuances of dementia, especially when sex is involved. The combination of sex and dementia also puts enormous strains on family relationships, which turned out to be a critical element in the Rayhons case. His four children are supporting him. Two of Donna’s three daughters played a role in Rayhons’ investigation. Through their attorney, Philip Garland, the two declined to be interviewed for this story.

Sexual assault laws years ago recognized that a spouse cannot force himself or herself upon the other. Dementia confuses the issue. People with dementia can lose past inhibitions about sex and become aggressive about seeking it. They might be unable to balance a checkbook while they’re perfectly capable of deciding whether they desire a partner’s affections.

Experts in geriatrics say that intimacy -- from a hug to a massage to intercourse -- can make dementia sufferers feel less lonely and even prolong their lives. Love complicates things further.

By many accounts, Henry and Donna Rayhons were deeply in love. Both their families embraced their marriage. The case has produced no evidence thus far that the couple’s love faded, that Donna failed to recognize her husband or that she asked that he not touch her, said Rayhons’ son Dale Rayhons, a paramedic and the family’s unofficial spokesman.

Based on evidence generated so far, state prosecutors are likely to portray Rayhons as a sex-hungry man who took advantage of a sweet, confused woman who didn’t know what month it was, forgot how to eat a hamburger and lost track of her room.

“Any partner in a marriage has the right to say no,” said Katherine C. Pearson, who teaches and writes about elder law at the Penn State Dickinson School of Law and reviewed the Rayhons case at the request of Bloomberg News. “What we haven’t completely understood is, as in this case, at what point in dementia do you lose the right to say yes?”

In interviews, Rayhons said his life and reputation are already ruined. Shortly before his arrest, he withdrew from the election that probably would have won him his 10th consecutive two-year term representing a northern Iowa district in the state House of Representatives.

Sitting in his son’s heated garage on a chilly October night, he convulses with sobs recalling the events of recent months. He says he’s most distraught about being kept from Donna during the last weeks of her life.

“My wife just died and you’re charged with something like this because you prayed by her bed,” he says. “It hurts. It really hurts.”

This story was assembled from hundreds of pages of documents filed with Iowa regulators and the Hancock County District Court in Garner as well as interviews with more than two dozen people. Geoff Greenwood, a spokesman for Iowa attorney general Tom Miller, declined to comment or make prosecutors available for interviews.

Full Article & Source:
Can a Wife With Dementia Say Yes to Sex?

Former nurse is charged

Labarbara Deshay Currin
FLORENCE — A former nurse at a local health care provider for the elderly has been arrested and charged with the abuse of a 96-year-old woman.

Florence police Sgt. Cliff Billingsley said Labarbara Deshay Currin, 27, formerly of East Tombigbee Street, Florence, was arrested Tuesday in Pulaski, Tennessee, by U.S. marshals and is charged with second-degree elder abuse.

Currin is accused of physically abusing the 96-year-old woman while the woman was a patient at Glenwood Nursing Home in Florence, according to reports.

Florence police Detective Kevin Jackson said the abuse reportedly occurred Aug. 10 and was reported to authorities by Glenwood officials.

Glenwood spokeswoman Jeanne Moore said in an emailed statement Glenwood immediately reports any accusation of abuse and “cooperates fully with police officials in any investigation.”

Jackson said Currin is accused of hitting the older woman on the head with her hand several times and twisting her arm.

“Glenwood Center has a zero tolerance policy with regard to abuse and when we receive a report from any source, be it patient, family or another employee, we immediately suspend the implicated individuals and thoroughly investigate the allegation,” Moore said. “We do not hesitate to terminate any employee when we believe they engage in inappropriate behavior toward our residents.”

Billingsley said according to reports, the woman had multiple knots on her head and a bruise on her arm.

“Apparently (Currin) got aggravated with the lady and just hit her,” Jackson said.

Jackson said police had been trying to locate Currin since the arrest warrant was issued in August.

Members of the U.S. Marshals Gulf Coast Region Fugitive Task Force located Currin in Pulaski on Tuesday and made the arrest. Police said Currin was living in Pulaski.

The physical abuse of an elderly person is only one type of elder abuse.

“The more common types of elder abuse are neglect or financial exploitation,” said Jerry Groce, director of the Franklin County Department of Human Resources. “Just because there aren’t a lot of reports of physical abuse doesn’t mean it doesn’t happen. It does.”

Groce said a lot of times older patients require a lot of extra care, which can put stress on caregivers.

“People who deal with elder adults have to have a lot of patience,” Groce said. “It’s easy for a person without compassion and caring to lash out at them. And unfortunately, we see this happen throughout the state.”

Currin is out of jail on bail totaling $6,000.

Second-degree elder abuse is a Class B felony and is punishable by 2-20 years in prison if convicted.

Full Article & Source:
Former nurse is charged

North Carolina man scares off thieves with gun on walker

Joseph Sapienza told The Gaston Gazette ( that he was watching TV Thursday night when he heard someone trying to pry open his door.

He says he got his gun, put it in a holster in his walker and shuffled to the front door. He flipped on a light, yelled he was armed and threw open the door.

Sapienza says the men ran away. He says he put up the note to warn any other would-be robbers.

Full Article & Source:
North Carolina man scares off thieves with gun on walker

Thursday, December 11, 2014

Next of Kin Gives no Standing in Florida Guardianship Proceedings

Based on a recent appellate decision from Florida, "standing" in some guardianship matters has been severely curtailed to those persons with a direct interest in the proceedings. Being next of kin, standing alone, gives no standing to participate in some matters before the guardianship court. Spouses, adult children and parents of wards may have limited to zero rights to oversee and protect the affairs of their kinship and loved ones.

In Rudolph v. Rosecan (4th DCA 2014), the Court held that the mother of an autistic adult ward was not an "interested person" for the purpose of inspecting guardianship reports and other information. The father had been appointed plenary guardian.  The parents had agreed to a parenting and timesharing plan, where the parents had shared parental responsibility and required them to confer and attempt to agree on all major issues affecting the ward.  The father had the ultimate authority in the case of no agreement.

A dispute entailed, and the father / guardain moved to dismiss the mother's objections to the annual guardianship plan, which includes an accounting and other financial matters.  In denying the mother's standing to participate in or object to the annual accounting or other financial matters, the court rejected the idea that standing can be obtained through one's status as next of kin.  Although next of kin gives a person certain rights with respect to a guardianship proceeding, that status, standing alone, does not give the standing necessary to receive accountings or other financial information.

The Court relied on the Florida Supreme Court of Hayes v. Guardianship of Thompson, 952 So.2d 498 (Fla. 2006), which held that heirs to a ward's estate do not have standing to participate in a proceeding regarding the guardian's fees.  The Court also relied on the case of Bivens v. Rogers, 147 So.3d 549 (Fla. 4th DCA 2014), which held that a next of kin could not initiate proceedings to change the residence of a ward.
As our supreme court has taught us, there is no bright-line rule. A person’s status as an “interested person” with standing in a guardianship proceeding is dependent upon whether the person would be affected by the outcome of the proceedings. Simply being next of kin does not confer “interested person” status.
Perhaps the rulings of the cases do not shut out family members as much as a first reading might suggest.  Instead, family members who wish to partipcate in guardianship proceedings need to articulate specific ways in which they will be affected by the proceedings, be they financial or otherwise.

Full Article & Source:
Next of Kin Gives no Standing in Florida Guardianship Proceedings

Delusional? Discipline Hearing Begins for Suspended Detroit Judge Brenda Sanders

Judge Brenda Sanders
The sad disciplinary hearings for suspended Detroit 36th District Judge Brenda Sanders began Monday in Pontiac. She's accused of judicial misconduct and of being delusional.

Oralandar Brand-Williams of the Detroit News reports that former 36th District Chief Judge Kenneth King testified that he became concerned that she had a backlog of 400 cases on her civil court docket in 2012, and he offered to help her clean it up. He transferred her to the criminal division of the court.

She accused him of setting her up to fail, King testified.

“I felt she was extremely paranoid regarding everyone ... anyone,” King testified, according to the News.

Also, on Monday a repossession specialist Edward Welch testified that Sanders became belligerent when he went to a family property in South Carolina to repossess her Lexus last month, the Detroit News wrote.

Welch testified that Sanders used a racial epithet against him and accused him of being Ku Klux Klan member, the News reported.

The News reports that the Judicial Tenure Commission has accused her of suffering "psychotic delusions” and of fraudulently receiving medical leave from her $138,000-a-year position. She is currently suspended without pay.

The News also wrote:
On Monday, several witnesses were asked whether Sanders was hampered from walking and used a wheelchair or a cane for assistance because of her arthritic knees. None testified that she had any difficulties walking.
In earlier testimony Monday, an orthopedic physician, Dr. Stephen Mendelson, who testified about Sanders’ medical condition, said the judge had arthritis in her knees and appeared unstable to him.
Asked at Monday’s hearing by the commission examiner if he would tell her to lose weight before he could perform surgery on her, Mendelson responded: “No, I would tell her to see a psychiatrist.”

Full Article & Source:
Delusional? Discipline Hearing Begins for Suspended Detroit Judge Brenda Sanders

Wednesday, December 10, 2014

Former Public Guardian, Metro in Court Faceoff

By Walter F. Roche Jr

Davidson's former Public Guardian, Jeanan Stuart, and lawyers for Metro are battling each other in a suit brought by a woman who was placed in a conservatorship without her knowledge while recovering from serious head injuries.

In the suit now pending in Davidson Circuit Court Ginger Franklin of Hendersonville has charged that Stuart violated her fiduciary duties by placing her in a group home that didn't suit her needs and then ignoring her pleas to end the conservatorship.

Stuart's lawyers contend their client was acting as a Metro employee and should be protected from any liability under a state law, the Tennessee Governmental Tort Liability Act, limiting the claims that can be filed against a government agency or individual employees.

"She was elected by Metro Council," a recent filing states, adding that she also was issued a Metro employee ID badge and Metro provided her with bond coverage.

Stuart resigned from her post last year simultaneous with an announcement by Probate Judge David "Randy" Kennedy that he would no longer appoint her in any conservatorship cases.

In the Franklin case, Stuart's lawyers filed papers naming Metro government as a  third party defendant. Metro countered charging that the statute of limitations had run out by the time the claim was made and that Stuart's alleged actions fell outside of those that can be protected under governmental immunity.

"Contrary to Metro's assertions the complaint alleges breaches of fiduciary duty for which Metro would be liable," a recent filing by Robyn E. Smith, Stuart's lawyer, states, adding that Stuart should be immune.

"Metro government also gratuitously asserts that the complaint alleges only intentional torts for which it would not be liable," the filing adds.

In its latest filing Metro lawyers state that while they still want the case dismissed, if it does continue that "discovery be limited to ascertaining the employment status of Ms. Stuart."

Citing a prior ruling in the case by Judge Hamilton Gayden, Metro lawyer Jeff Campbell stated in a filing that the court's original decision to deny proceeding under Governmental Tort Liability Act was "correct."

In another filing seeking dismissal of the claims against Metro, government lawyers argued that "absent an allegation of direct negligence on the part of a supervisor of Ms. Stuart, the government maintains its immunity for intentional torts."

Franklin's lawyer, Michael G. Hoskins, in response to Stuart's move to invoke the governmental immunity statute wrote, "The Metro government did not have any authority to direct or supervise defendants actions as conservator."
Full Article & Source:
Former Public Guardian, Metro in Court Faceoff

1,600 investigations of Colo. elder abuse stem from new law

For the first time, authorities have some idea of the extent of elder abuse in Colorado.

On July 1st, a new law went into effect mandating that people in a wide array of professions report any suspect abuse of people over 70 years old.

Since then, state has received more than 3200 reports of possible crimes against senior citizens between the beginning of July and the end of October.

According to state officials, nearly half of the reports merited investigation. Of those, 54 percent were for caretaker neglect and exploitation. Physical and sexual abuse were suspected in another six percent.

The rest of the cases were seniors the authorities believed might not be able to adequately care for themselves.

"We are really hearing a lot from physicians, hospitals, and the big one on this is bankers," said Viki Manley, head of Colorado's Office of Community Access and Independence, which is overseeing the law's implementation.

"Financial institutions who are watching that financial exploitation, that’s been a really great piece of this statute," she said.

Full Article & Source:
1,600 investigations of Colo. elder abuse stem from new law

Tuesday, December 9, 2014

Elder guardianship: Between a rock and a hard place

Julie Ferguson & Marise London

Julie Ferguson wishes now she had never made the first phone call.

It was in the autumn of 2010, after she noticed strange notes by the phone at her mother’s house on Siesta Key: “Change will.” “Change power of attorney.” “Send money to Tennessee.”

Ferguson says she worried that her mother — then 81 and clearly already having problems with memory and reasoning — was sending money and jewelry she could not afford to lose to a family member who had moved away. An attorney advised her to get help from the Department of Children and Families’ Adult Protective Services division.

“I was scared,” she recalls. “I thought, ‘I’m not going to be able to keep her in her house and that’s all she ever wanted.' ”

Four years later, Marise London — for years the owner of a well-known art gallery and frame shop in Gulf Gate — has managed to stay in her beloved house. But decisions about her daily life there — who visits her and cares for her, where she goes and even what she eats — are made by professionals hired by the state of Florida, and paid with her money.

“I want to stay in my home until I die,” London wrote in February 2013. “I chose Julie to fulfill those wishes. I still choose Julie and trust Julie for my care as she knows my wants and needs. I hate for strangers to come inside my house.”

Ferguson’s attempt to free her mother from the system — or at least be named as the guardian of her person, if not her property — has gone nowhere. Ferguson still owes thousands to the attorney she hired to represent her, and cannot find another who will take her case.

Many Floridians who find themselves wards of the state took steps in the past to make sure their fortunes and futures were secure, signing documents and appointing people they trusted to manage their affairs if they could not.

But Southwest Florida’s guardianship case files are full of examples where life did not go as planned.

“I have spent the bulk of my career telling clients how to avoid guardianship,” says Bernard A. Krooks, an elder law attorney considered a national expert in special needs planning. “Having been around the block, I now understand that’s not true. Having all the right documents doesn’t guarantee that the people you choose will do the right thing, or that others won’t accuse them of doing the wrong thing.”

Florida’s guardianship statute — considered a model for other states — favors placing incapacitated adults in the care of family members. But feuding relatives can find in court that their desires and entitlements are trumped by what the system calls “the best interests of the ward.”

Unable to sift through a family mess, judges resort to professional guardians who can restrict access to the elder and spend money in ways the family cannot control. People who call Adult Protective Services hoping to resolve a family conflict can wind up regretting that they unleashed such a powerful force.

“If the family’s squabbling, it’s easier to name a third party and tell everybody it will be OK,” says Diane Menio, executive director of the Center for Advocacy for the Rights and Interests of the Elderly in Philadelphia. “It puts the family in a difficult situation, and not all those families are abusive. Even if they were abusive, it doesn’t mean that their mother or father doesn’t still love them and want to see them.”

A study of guardianship case files — the parts that are not confidential — reveals that professional guardians have a fairly routine playbook. After placing a ward in a facility or — less frequently — arranging for care at home, they inventory the assets and start selling them off. The car is usually first, then household goods, then the house itself. The assets are used to pay the caregivers, the attorneys and the guardian — until the money runs out, the ward dies, or both.

Professional guardians and elder law attorneys, perhaps jaded from struggles with dysfunctional or uncaring families, are quick to believe that relatives who buck the system are simply trying to protect their inheritance. But these relatives say they and their loved ones are being denied due process, because the only way to challenge the system is to spend more money on attorneys who fail to work on their behalf.

“The guardians have their attorneys, and that’s where the money really goes; it’s the attorney fees,” says Sam Sugar, an Aventura doctor of internal medicine who founded an organization called Americans Against Abusive Probate Guardianship. “The local guardianship companies make it their business to hire every lawyer that could possibly be in probate court to do some work for them. When a victim is looking to hire the best possible attorney, that attorney is not available.”

An exclusive club

For conscientious attorneys, guardianship cases can easily require more time and effort than most clients can afford, and their hourly fees are capped in some jurisdictions — including Sarasota and Manatee counties — but not others.

Court-appointed attorneys for prospective wards have no incentive to buck the system, says Menio.

“It’s really just any lawyer who happens to be in the hallway, and they can’t say no to the judge,” she says. “There’s very little compensation — unless the ward has money, and then they’re lining up for that.”

Full Article & Source:
Elder guardianship: Between a rock and a hard place

Update: Bunny and Claflin Garst

In July 2013, the Herald-Tribune told the story of former Manatee County judge Claflin Garst Jr. and his wife of more than 30 years, Bunny.

When her husband’s judgment in money matters appeared to her to be eroding dangerously in 2010, Bunny Garst asked the court system to make him a ward of the state and name her as his guardian. But her ex-son-in-law also sought guardianship, and the bitter court battle ended with a paid professional guardian in charge of her husband’s finances and his private life.

Bunny Garst says now she has stopped attempting to see her husband, and his guardian recently allowed him to leave his ranch to visit relatives in Palmetto, on the condition that his hired housekeeper accompanied him.

Since losing the legal fight to care for her husband, Garst has tried, with limited success, to stop his guardian from liquidating real estate owned by the former judge, at what she believes to be “ridiculously low” prices. She worries about the ranch where her husband lives, appraised by the guardian at $590,000, which she believes is worth 10 times that. The guardian, Robert Elliott, has declined to comment.

In February, on the eve of her 81st birthday, Garst filed for divorce. There is a mandatory waiting period of three years after a spouse is declared incapacitated, so the case is pending until late January.
“I really, really hate this; I feel like I’m abandoning him in his hour of need,” she says. “I don’t want a divorce because the only way I can be of any help to him — which, granted, isn’t much — is if I am his wife.”

But, she adds, “I have no choice but to go ahead with the divorce before all of Claflin’s assets are gone and I have to support him.”

Full Article and Source:
Update: Bunny and Claflin Garst

See Also:
NASGA:  Judge Claflin Garst, Florida Victim

Monday, December 8, 2014

Social Media Guardianship Awareness Campaign to Protect Your Family Starts Today!

NATIONAL GUARDIANSHIP ABUSE AWARENESS on Social Media coincides with a three-part series that is running in the Sarasota Herald-Tribune (Dec. 7 - 9, 2014). The articles feature America's most sinister act that has silently been occurring in complete violation of our American Constitution.  Most haven't heard of Guardianship or Probate Court Abuse and when they do, it's surreal and unbelievable. A Durable Power of Attorney really can be overturned in a hurried courtroom where family members don't even have time to hire an attorney. That's if the family is even notified at all. (And no, it isn't because the elder signed their okay.)

Can strangers really take over an elder person's money and make all decisions - even with  willing and capable family members? Not only is the answer yes, but it's happening in all 50 states. What was set up to protect vulnerable elderly (and YOU in the future) from exploitation has turned into legalized kidnapping and looting of our elder's life savings and estates. If family members make any kind of waves, they are banned or restricted from seeing their own parent. Once you're in the hands of a guardian, even a Clarence Darrow can't get you out.  Want to escape? They already liquidated your car. (Guardians took my Mom's car the second day.) Want to ask a family member or neighbor for help? (You can't, they have a GPS device attached to your ankle or wrist - for your own safety, of course.) When I took my Mom on a court-approved vacation, when I didn't have her back on time, they went to court to put a temporary restraining order on me, stating I was a danger to her.

It's no wonder one corporate guardianship had a fundraiser and dubbed it "The Wild, Wild West". Statutes are being broken. Loosely written laws by the Guardianship attorneys that benefit those that can make money off of the elderly (and like I said, YOU in the future) are spun to work against loving family.  Can you imagine all that you've been working for - to  insure that your spouse and kids have a good future - is taken in a less than a 15-minute court-hearing? And now all your assets are in the hands of a stranger, who will use up your life savings in a heartbeat. There won't even be money left for your funeral. Victims call Guardianships a transfer of wealth.

Why haven't we all heard of it if it's as bad as it sounds?

1. Social media hasn't been around long enough for people to make some noise.
2.  When a Guardian has complete control over a loved one, your relationship with that person is based on fear. If you make waves, they can retaliate by taking it out on your loved one. So, you stay quiet and meek as a mouse.
3.  Victims are behind the eight ball. A person hearing their story for the first time will look at them suspiciously,  One can't help but wonder:  What did they do or what's wrong with them that a Judge nullified their Power of Attorney? If it was as easy as they said it happened, that means it could happen to us. So honestly, it's easier to turn a blind eye and think we're safe or our parents are safe, because they had their Advanced Directives drawn out when they were of full mind and body.

Truth of the matter is - this could happen to you. Never in a million years did I think this could happen to my family! Two years later, I'm still in total disbelief. I needed an attorney to keep a GPS bracelet off of my Mom. She legally has less rights than a prisoner. And thousands of dollars later, I still can't get her out of this damaging situation. As Baby Boomers get older, the Wild Wild West World of loosely written laws that benefit those that stand to make the most money, will be stronger than ever. 

A lot of old school media is fearful to cover the issue of Guardianships, because it isn't a one-tiered story. The layers of ruin run deep in the field of "liquidate, isolate, medicate". There are so many areas that need to be vetted in such a litigious society, that some media feel the story isn't worth the trouble it could bring.

But, with the Sarasota Herald-Tribune's fearless coverage of Guardianship abuse, written by Barbara Peters-Smith, other media outlets will have the courage to follow suit. Sharyl Attkisson did an incredibly expose when she was with CBS News.

Our awareness campaign begins with us. We would like for you to make a sign (or copy/paste a symbol) that shows you are aware of these violations against an elder's human and civil rights. That you won't allow it to happen to your friends, your loved ones - or even yourself in the future. You do not want your kids to go through watching all your constitutional rights stripped from you, as well as all your possessions.

Your sign can read something just as simple as "END ELDER ABUSE" or "No to Guardianship Abuse in MY hometown." If you know someone who is suffering as a result of this abuse, you can put their name on your sign as a show of support. Place the picture in your profile picture and ask your friends to either share or post their own. Only through awareness and exposure will these laws - that allow legal advanced directives to be voided as easy as if it were a  traffic citation -  to change.

My Mom, who is under the Guardianship of a multi-million dollar non-profit corporation, Lutheran Services Florida, told me that if you're unhappy with something, you use your mouth to talk (you don't destroy and loot). If they don't listen, you talk louder. And if they're still not listening, you get more voices to make more noise.  Moms are always right.  The awareness campaign begins Dec. 8 and runs through the month.

For more information on this cause, go to Florida Guardianship Laws Talking Points.

For more information on Guardianship Abuse, go to National Association to Stop Guardian Abuse or Boomers Against Elder Abuse.

A public relations firm will work to get the cause national publicity outside of social media. Together, we'll end this Holocaust of America's most vulnerable citizens - our elderly - and us, when we get there. We deserve better. America deserves better.

Guardianship Awareness Campaign to Protect Your Family

Florida Guardianship Law's Talking Points' Facebook Page

NASGA's Facebook Page

Boomers Against Elder Abuse's Facebook Page

CBS News:  Guardianship Agency Costs Elderly Woman Dearly*
*NASGA worked with CBS News on this report. 

Sunday, December 7, 2014

Tonight on T. S. Radio: Court Appointed Guardianship Abuses Run Rampant in American Courts

Mike Volpe, Investigative reporter for the website REBEL PUNDIT, joins us this evening to discuss his recent expose' on the corruption of the probate courts and those who are victimized by a for-profit system of elder abduction, isolation, neglect, abuse and the inevitable looting of their lifetime accrued assets by judges, attorneys, predatory guardians and anyone else who can find a way to tap the estate.

From the article on Rebel Pundit "Court Appointed Guardianship Abuses Run Rampant in American Courts"

"Initially started to protect the elderly and mentally challenged from being taken advantage of, it has often been corrupted, having the opposite effect. Those perfectly healthy who are effectively jailed and held against their wills, often end up in nursing homes away from their families."

Join us as Mike talks about his investigation and what it revealed about the dangerous new age crime of "aging with assets".

5:00 pm PST … 6:00 pm MST … 7:00 pm CST … 8:00 pm EST

LISTEN to the show LIVE or listen to the archive later

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Court Appointed Guardianship Abuses Run Rampant in American Courts

Elder guardianship: A well-oiled machine

Marie Winkleman

At 89, Marie Winkelman has long considered herself a fortunate woman — even though she lost her entire family except for one cousin in the Holocaust, was widowed twice and has no children.

Her brave odyssey from wartime Poland to the United States would appear to have ended happily, with a comfortable retirement in Sarasota.

But Winkelman’s faith in a nation that had been kind to her was shaken in July 2013, when she was stripped of her civil rights and declared a ward of the state of Florida.

Now, strangers control her life savings, her worldly possessions and her medical care. The court has ordered a trust company to cut checks from her account for some $635,000 to pay attorneys, guardians and others involved in her case, with many more expenses pending.

A professional guardian receives more than $1,000 a month, at $85 an hour, to coordinate Winkelman’s doctors’ appointments, help with financial transactions and communicate with her cousin and a family friend — who both sought unsuccessfully to free her from a legal status she finds expensive and intrusive.

“I pay for everything, for lawyers, for everything,” Winkelman says. “Unbelievable! They know that I don’t need any of their help. Not that I am so smart — but I can handle certain things.”

Her case is part of an accelerating national social phenomenon that has plunged aging Americans into a sometimes bewildering guardianship system when they are deemed too frail or mentally compromised to make decisions for themselves.

The idea behind guardianship is to protect older citizens. But Florida has become a place where quiet, desperate disasters happen daily, often touched off by a single phone call.

In the middle of an unprecedented national longevity trend, half of all Americans 85 and over are believed to experience significant cognitive decline. Many of them wind up in sunny Florida, far away from sons and daughters — some with enough assets to make them attractive to scammers and cheats, others outliving their savings and utterly dependent on the state.

In response to a pressing need, Florida has cobbled together an efficient way to identify and care for helpless elders, using the probate court system to place them under guardianship.

But critics say this system — easily set in motion, but notoriously difficult to stop — often ignores basic individual rights. Most of it plays out in secret, with hearings and files typically closed from the public.

Even basic documents are hard to find. Because Florida’s court clerks keep records differently, there are no clear numbers on the rise in guardianship cases, and no accounting of how many millions are spent on attorneys, guardians, and medical and financial experts.

But there is no doubt that monitoring elders and tapping their assets is a growth business: In 2003, there were 23 registered professional guardians in Florida, according to the Department of Elder Affairs. Today there are more than 440 — an increase greater than 1,800 percent in 11 years.

Talk to the social workers, guardians and attorneys who run this system, and you hear assurances of their good intentions and diligence in looking after people who have lost their rights to make decisions for themselves.

But from family members and friends caught in the system against their will, stories emerge of a ruthless determination to take elders from their homes and make them conform to a one-size-fits-all process by which their belongings can be sold, and their family and friends shut out — until eventually they are locked away in institutions to decline and die.

The critics call this process “liquidate, isolate, medicate.”

Once activated, this system plunges elders into a legal labyrinth, where they quickly come to depend on the kindness of strangers.

'It’s not fair'

Winkelman has a rich and bubbling laugh that can make a stranger feel right at home in her colorful apartment, where the walls glow with cheerful still lifes, landscapes and portraits she’s painted.

Full Article & Source:
Elder guardianship: A well-oiled machine

Elder guardianship: "For two and a half years, I had no rights"

Willie Berchau
Because of Stalin and Hitler, young Willie Berchau [Willi] was shunted from his native Lithuania to Germany, and from there to England as a German prisoner during World War II. After the war, when the Russians had come back into his life, he fled East Germany in 1951 for the United States.

At the age of 99,  because of Florida's guardianship system, he was taken from his apartment at a St. Petersburg elder community to a hospital for bladder cancer surgery, and transferred from there into a nursing home’s locked ward for dementia patients.

Six months later, thanks to friends from his church and a volunteer long-term care ombudsman who agitated for his release, he returned to The Fountains at Boca Ciega Bay.

It’s not the same apartment where he once lived, and his court-appointed guardian sold a lot of his furniture and possessions after placing him in the lockdown unit. But at 100, he is grateful to be home free.

“For two and a half years, I had no rights,” he says. “We had three or four attorneys, and they are not worth the salt on your bread.”

Berchau is a courtly, sweet-natured man who speaks four languages. His small and wiry frame moves deliberately these days — but his thoughts do not hesitate as he recalls how the struggle for his liberty unfolded.

It started at a painful point in his life; he had just lost his wife after two years of caring for her at home.

“She was wonderful. Oh, I wish she would be back!” he says. “We never used to argue, never. If we had a grievance or something to say, we sat down; she came up with a piece of cake and coffee and we discussed it.”

Weary from his years as a caregiver, Berchau wanted to leave behind the house he had shared with his wife, and move to an apartment at The Fountains. He agreed to sell it for $55,000. Then a real estate broker told him the house was worth more, and she offered to find an attorney who would cancel the sale.

“In the meantime, I sent money to my relatives in Germany,” he says. “When the checks couldn’t be cashed, I knew there was something wrong.”

Calls to the state’s Adult Protective Services division of the Department for Children and Families about an elder’s suspected incapacity are anonymous, and Berchau can never know for sure who reported him to the authorities as an elder with dementia.

Patricia Johnson, a professional guardian in Pinellas County, sold Berchau’s house for $65,000, according to court records. She also took over his bank account, changed his doctors, and had his mail sent to her home.

“She became my guardian on account of the court’s decision,” Berchau says. “I looked at her and she looked at me, and I had a feeling that I wouldn’t be able to get along with her. And that’s what happened, from Day One up to the last moment.”

Johnson disputes this account, saying she and Berchau had a “fantastic relationship” until some of his German relatives learned of his case and got involved. She believes they were after his money, and she continues to maintain that Berchau suffers from dementia. She also points out that the court monitor in Pinellas County never accused her of doing anything wrong in Berchau’s case.

Johnson — who says she charges $70 an hour as a guardian, with “30 to 60 percent” of her caseload pro bono — says news reports critical of the guardianship system are not in elders’ best interests.

“Having worked in the system for 30 years, my biggest problem has been that people get scared off by the very people that are trying to help them,” she says. “These stories create an impression that guardianship is a scary thing, and it doesn’t have to be. I’m only there to manage problems and make life better.”

About a year into his guardianship, Berchau says, he feared that Johnson planned to remove him from his apartment, and he asked staff members at the Fountains to help him. That brought a threatening letter from Johnson to the community’s administrators, in September 2012.

She had successfully petitioned the court to restrict Berchau’s right to choose his own doctor and travel, the letter informed them, and he could not leave the premises “unless the guardianship approves, knows with whom he is going and where. His right to make social decisions has been removed also, therefore, you will need to let me know if people are coming to see him, or trying to take him places. . . . You are not helping Mr. Berchau by keeping him confused and at odds with the guardianship.”

Full Article & Source:
Elder guardianship: "For two and a half years, I had no rights"

Railing against injustice, one case at a time

Beverly and Lawrence Newman help and their families fight guardianship proceedings. (Staff photo / Rachel S. O'Hara)
Beverly and Lawrence Newman help and their families fight guardianship proceedings. (Staff photo / Rachel S. O'Hara)

Ordinary citizens who rail against injustices they see in the U.S. guardianship system can come across as a little unhinged.

They send emails bristling with capital letters and exclamation points. They compose blogs that read like vendettas against specific attorneys. They obsess over small details, but omit from their narratives the major complications that might explain why things went against them in court.

They call journalists — who often abandon efforts to check out their stories because of the time involved. These cases are convoluted, and much vital information is sealed from the public eye.

They form their own, usually underfunded, organizations: National Association to STOP Guardian Abuse. Boomers Against Elder Abuse. Temple Gate: Challenging the Guardianship Industry.

Attorneys and other professionals in the system tend to roll their eyes when they hear these names.

Sam Sugar, an Aventura physician who founded Americans Against Abusive Probate Guardianship, says he knows why people trying to tell their stories are so often seen as suspect.

“They have been so maimed and damaged by this David-and-Goliath battle,” he says. “It’s a form of post-traumatic stress disorder.”

Elder law reform advocates on a national level take many of the critics’ points seriously. But because guardianship procedures vary from state to state, and county to county, they must struggle to make themselves heard on a case-by-case basis.

Beverly Newman of Sarasota, with her husband Lawrence, runs a small nonprofit named in honor of her father, The Al Katz Center for Holocaust Survivors & Jewish Learning Inc. A central mission — not suggested by the name — is helping elders and their families fight guardianship proceedings. Because of their web presence, they hear from people all over the country.

Newman admits that people trapped in the system often seem hysterical; she says it’s because they are caught in a situation that makes no sense to them.

“A lot of times it’s very, very easy to get defensive because accusations are flying,” she says. “You have two choices: you can address the accusations, combat them, confront them, wither under them — or you can focus on the ward. What I advise every time is, focus on the ward. This is the person who is helpless to do virtually anything on his own behalf.”

The Newmans assisted Marie Winkelman for over a year, filing briefs, helping her replace her first attorney and guardian, and walking her through the process of proving her capacity to make decisions.

But hearings on her case have been closed to them, and the court does not acknowledge them as interested parties.

“We don’t exist,” Beverly Newman says. “The court ignores us.”

Full Article & Source:
Railing against injustice, one case at a time