Saturday, October 24, 2015

Hattie Poole's Plea for Justice

Hattie Poole's Plea for Justice

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Family Divided Over Millionaire's Mental Competence

State suspends nursing assistant's license following theft accusation

MARION COUNTY, Fla. — A nursing assistant is a step closer to losing her license after accusations that she stole a vehicle from an 81-year-old Alzheimer's patient.

The Florida Department of Health issued an emergency suspension order, suspending the license of Sheila Krebs.

Sumter County deputies accused Krebs, 59, of stealing a Chevy Equinox from a patient.

Marion County deputies accused Krebs of stealing $300,000 from a dementia patient in 2011. After the patient died, prosecutors dropped the case.

State officials refused to comment on the case.

She is due in court Nov. 10.

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State suspends nursing assistant's license following theft accusation

Twitter And Facebook May Be The Best Way To Get Lawmakers' Attention

Sen. Marco Rubio (R-Fla.)
WASHINGTON -- If you're trying to get a message to your representatives in Congress, your best bet may be to use Twitter or Facebook, according to a report released Wednesday by the Congressional Management Foundation.

To conduct the study, the CMF issued two separate surveys to communications directors, legislative directors and legislative assistants of Senate and House members last summer. The surveying yielded 116 responses, which may not capture all of the lawmakers on Capitol Hill who use social media accounts regularly, but does offer a glimpse into the impact constituents might have by engaging their lawmaker on such platforms.

Eighty percent of staffers said their office will "pay attention" if their lawmaker's social media post garners 30 responses or fewer. But those comments need to come in soon after the lawmaker's initial post to have a greater chance of being noticed.

"The authenticity of a tweet or Facebook post, whether by a citizen or lawmaker, has the inescapable power to change minds," said CMF CEO Bradford Fitch, a co-author of the report.

Seventy-six percent of respondents said social media allowed lawmakers' offices to have "more meaningful interactions" with constituents. Additionally, 70 percent said platforms like Twitter and Facebook made their member or senator "more accountable" to the people they are representing while in Washington.

And 71 percent said the more people affiliated with a specific group or cause respond to a legislator's social media post, the more likely they will have "some" or "a lot" of influence on the lawmaker's decisions.

The Huffington Post reviewed the social media accounts of the 100 senators in the upper chamber, and found that they all have Twitter and Facebook accounts that are used frequently.

"For those not regularly tuned in to what's going on in Washington, social media gives us the ability to share and engage with those people," said one House communications director, according to the report.

One Senate legislative staffer said social media platforms "let people back home see behind the scenes."

President Barack Obama's two presidential campaigns are credited with introducing the new element of social media into the political arena. A 2012 Atlantic piece provided an inside look at the ex-Twitter, Google & Facebook techies the Obama campaign hired to make sure his message was constantly available to voters.  (Continue Reading)

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Twitter And Facebook May Be The Best Way To Get Lawmakers' Attention

Friday, October 23, 2015

Legal Alternatives to a Guardianship for an Elderly Incapacitated Individual

This comment provides a brief and incomplete educational introduction to legal alternatives to a court ordered and supervised guardianship for an elderly incapacitated individual. Always consult experienced legal, estate planning, medical, financial, and tax professionals in specific situations.

There are a number of well-known and easily created documents that a competent individual should consider preparing well in advance of incapacity. A current will is fundamental. Other items include a medical power of attorney, durable power of attorney, joint accounts with survivorship, joint ownership generally, and a variety of trust funds. Of course, review how trusted individuals will access safety deposit boxes, storage facilities, and passwords for computers, cellphones, and accounts generally. One should not hide coins, jewelry, and money so that heirs are either completely unaware of their existence or must conduct a "treasure hunt." Utilize a safety deposit box. All of this should be discussed with an experienced professional.

Somewhat like a power of attorney, many statutes allow the creation of a "Supported Decision-Making Agreement" in which an adult with disabilities, but not incapacitated, agrees with a "supporter" to assist her or him in understanding, making, and carrying-out a variety of life decisions.

It is also possible to designate a "Geriatric Care Manager" that may conduct assessments and coordinate services.

Some states allow the deposit of money in a "Court's Registry" with the money then placed in an interest-bearing account. However, there are statutory fees associated with this service. Under a "Mini-Administration," specified individuals are allowed to withdraw funds, under bond, to be expended for the benefit of the incapacitated person. After a final accounting is approved by the court, the bond may be released.

If an incapacitated individual owns a business, a court may be required to appoint a receiver to conduct or liquidate the business. Again, statutory fees may be involved. Receivership is best avoided by a well-prepared succession plan, typically triggered when a business founder or proprietor anticipates retirement. Right of first refusal and buy-sell agreements with business partners are desirable.

The Social Security Administration and Department of Veteran's Affairs allow the appointment of a person to manage benefits without the court appointment of a guardian. There are also a variety of state and federal agency services especially designed for the disabled or elderly. All of these should be researched.

State statutes allow surrogate medical decision making in the absence of documents designating a decision maker. There is a statutory hierarchy of potential decision makers beginning with the individual's spouse and then flowing to adult children, and parents. However, there may be limitations on the types of decisions that may be made by the undocumented statutory surrogate. A well prepared advance medical power of attorney and related directives are best.

Many states allow a concerned physician or other individual to report a potentially dangerous elderly driver (often above age 80 or 85) for possible retesting. There is also a "Family Driving Agreement" under which an individual designates in writing someone to advise her or him when to stop driving.

If there is a dispute among family members concerning the need for a guardianship, mediation and a "Family Settlement Agreement" may be possible. These typically require court approval to be enforceable but may establish less demanding provisions than a traditional guardianship for the disabled or incapacitated person. It may be possible to create safekeeping or "freeze" agreements with financial institutions.

If concerned individuals fear that an individual is being isolated and held against her or his will, or subjected to abuse and undue influence, it may be possible to petition a court to issue a Writ of Habeas Corpus, demanding that the individual in question be produced in open court and that the total circumstances be opened to inquiry. These situations easily produce family divisions and might in part be prevented by the individual, while clearly competent, preparing a statement of her or his wishes for the future, from living arrangements through funeral planning. Expressions of desired future living arrangements might be coordinated with the individuals named in advance planning documents and joint accounts, etc.

State statutes and judicial decisions frequently have somewhat differing legal standards for determining if an individual has the legal capacity to create a will, to enter into a binding contract, or to require a guardian. To create a will, the traditional standard is to be of "sound mind" that involves understanding the general nature and extent of one's property and being able to formulate a plan for its disposition upon death. To create a contract, one typically must, at the time of contracting, appreciate the effect of what she or he was doing and understand the nature and consequences of her or his acts and the business she or he was transacting. To require a guardian, one must be "substantially unable" to care for herself or himself. These standards are often understood to mean that it is easiest to have the capacity to make a will and hardest to prove the necessity for a guardianship, with contractual capacity somewhat between the two. Proof of these standards requires both factual testimony and frequently professional medical or psychological evaluation. The legal presumption is that an individual has legal capacity with the burden of proof being on one who disputes capacity.

A contract entered into with an incapacitated individual is voidable at the option of that person only but not the other party to the contract. Steps must be taken by the incapacitated person or her or his representative to disaffirm the contract. Otherwise, the contract is valid and enforceable. However, if an individual is declared mentally incompetent by judicial action, subsequent contracts are void and unenforceable without any intermediate steps being taken.

Incapacity short of permanent incompetency, as is well known, may come and go depending upon the day, situation, and overall circumstances. A variety of disorders, conditions, diseases, and sometimes medication interactions may produce temporary or reversible incapacity. Legally, the attempt is to determine capacity at the moment the will or contract was signed. For this reason, many commentators suggest that the will signing (execution) be recorded on video with some conversation before and after the signing.

Undue influence compromises an otherwise capable individual's free will. An individual may be found to be legally susceptible to undue influence due to bad health, dependency, or depression, for example. Common situations involve isolation, excessive-persuasion, or flattery. If undue influence exists, agreements such as contracts or wills may be invalidated. A finding of undue influence is very dependent on the total circumstances. Has the individual acted "out of character" or rejected the "natural objects of her or his bounty?"

Many states have created an "Elder Bill of Rights" relevant to persons who are legal residents of the particular state and are age 60 or 65 and older. It is somewhat a confirmation of personal autonomy and basic freedom of choice. Note that "visitors" or "non-residents" may not be included under this legislation or be legally able to assert its rights. It is essential that the elderly individual clearly establish a state of residency. Sometimes a person with diminished capacity is moved to another state to live with a relative but her or his driver's license, voting registration, bank accounts, and home remain in the original state. Lack of clarity concerning residency may create problems such as eligibility for state programs designed for "residents" and jurisdictional issues if a guardianship is required or contested.

An Elder Bill of Rights may place duties on caretakers and nursing homes and limit transfers and discharges. It may also impose an affirmative duty to report abuse, neglect, or exploitation. These requirements coordinate with state criminal code provisions related to injury to an elderly or disabled person, theft, misappropriation of fiduciary property, securing the execution (signing) of documents by deception, and exploitation of a child, elderly individual or disabled individual.

Be aware of the increasing use of contractual arbitration clauses and related provisions limiting the right to sue or limiting damages. Juries are frequently very sympathetic to an elderly plaintiff. These provisions exclude jury trials. They appear in agreements prepared by nursing homes, physicians, and care facilities. They tend to be upheld by courts.  (Continue Reading)

Full Article & Source:
Legal Alternatives to a Guardianship for an Elderly Incapacitated Individual

Son's Fight to Regain Guardianship of his Father Highlights State Issue With Little-Known System

Juan Oria always wanted to take care of his parents when they reached old age and couldn’t care for themselves.

“They were exceptional parents and what they did for me I said I would do for them,” he said about his parents.

But after his widowed 88-year-old father developed Alzheimer’s and dementia, he and his sister disagreed over who should care for him.

“We ended up in court where the guardianship program was assigned to be the ward for my dad,” said Oria, who works for a local cruise company.

Last October, the Guardianship Program of Dade County (GPDC), a non-profit agency that acts as the public guardian for indigent adults in Miami-Dade County, was appointed guardian of Oria’s father.

His case is among the thousands of guardianship cases filed in probate courts throughout the Sunshine State every year. As people age, many become incapable of managing their personal and financial affairs.  (Continue Reading)

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Coconut Creek lawyer charged with grand theft

Coconut Creek attorney Nicholas Theodore Steffens turned himself in to a Broward County jail to face charges of grand theft after prosecutors said more than a half-million dollars were misappropriated from foreclosure transactions.

Last month the Supreme Court of Florida suspended Steffens, 36, of Parkland, from practicing law, based on an ongoing investigation by the Florida Bar.

In four mortgage foreclosure cases, funds totaling $654,696.83 were used to pay Steffens' personal expenses and to pay money owed to a mortgage lender or loan servicing company, an arrest affidavit said.

Two transactions happened in Miami-Dade County and two were in Broward County.

The Florida Bar said it opened its investigation into Steffens on Jan. 29 and on Sept. 16 filed its petition for emergency suspension, which the Supreme Court approved two days later.

With ongoing disciplinary proceedings that could eventually mean disbarment, Steffens filed a document on Sept. 28 with the Supreme Court to voluntarily surrender his law license, his lawyer Kevin Tynan said.

The court's response is pending.

Meanwhile, Steffens cannot accept new clients and had to stop representing existing clients 30 days after his suspension, according to the court's order.

He also had to notify clients, opposing lawyers and the courts of his status with the Bar. And he was ordered to stop disbursing or withdrawing any monies from clients' trust accounts related to his law practice without the Supreme Court's approval.

Broward County Circuit Judge Elizabeth Scherer ordered a $200,000 bond for Steffens, who surrendered on Tuesday. To get out of jail before trial, Steffens must show that the bond money is from legal sources.

Steffens' criminal attorney, Larry Davis, did not return a call seeking comment.

Steffens has been active in county politics and has served as an officer with the Coral Springs/Parkland Democratic Club.

In 2012, he was a candidate for the Broward County school board, District 4, but did not win office. At that time, his civic and political activities included the Broward County Children's Services Board; Parkland Education Advisory Board and Broward County Parks and Recreation Advisory Board.

Full Article, Video & Source:
Coconut Creek lawyer charged with grand theft

Thursday, October 22, 2015

Work continues to overhaul guardianship system

LAS VEGAS, NV (KTNV) - Work continues as a result of another ongoing Contact 13 Investigation.

The State Guardianship Commission held it's fourth meeting Monday as it works toward massive reform.

The Nevada Supreme Court created the commission after Contact 13 exposed systemic problems and allegations of corruption--including double-billing, homes lost with no oversight and families torn apart.

Nevada Supreme Court Chief Justice James Hardesty took issue with the form doctors use to declare a person incompetent.  He called it a one-size fits all approach that needs an overhaul.

Commissioners also heard from a Texas court official about that state's dramatic reforms to its guardianship system.  Texas is the first state to implement "supported decision-making."

That means Texas courts are now required to look at other alternatives before placing a person under guardianship.  Texas also has a specialized guardianship "bill of rights."

The Nevada Commission is expected to make final reform recommendations in December.

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Work continues to overhaul guardianship system

Pa. Supreme Court panel disbars Thomas Nocella, former Phila. judge

Former Judge Thomas M. Nocella
Former Philadelphia Common Pleas Court Judge Thomas M. Nocella, who was removed from the bench after being found to have committed numerous misdeeds, now has lost his law license, the state Supreme Court announced Tuesday.

The decision is the latest action against Nocella, 71. In 2013, he was permanently barred from holding a judgeship for a variety of reasons, including failing to disclose to the Philadelphia Bar Association such things as judgments against him and his troubles with the city ethics board.

In revoking his law license, the Supreme Court's disciplinary board said Nocella's "transgressions offend both the public and the bar and bring disrepute to the profession." The board also cited a case in which he collected $1,875 for work in a divorce case that he never performed.

Neither Nocella nor his lawyer, Samuel Stretton, could be reached for comment Tuesday.

The disbarment takes effect Nov. 19, but the phone to Nocella's law office, at 4000 Gypsy Lane in East Falls, has already been disconnected.

A longtime Democratic City Committee insider and associate of U.S. Rep. Robert Brady (D., Pa.), Nocella was appointed in 2008 as an interim Municipal Court judge by then-Gov. Ed Rendell.

In 2011, he ran a successful campaign to become a Common Pleas Court judge.

In that campaign, he had sought the coveted "recommended" rating from the Philadelphia Bar Association. To win the rating, the Court of Judicial Discipline later found, he committed serious violations. It said Nocella failed to disclose that he faced $1.7 million in liens and judgments. He also did not give the bar association details on a city Board of Ethics contempt citation over his representation of a political action fund connected to Carol Ann Campbell, a late city councilwoman, ward leader, and secretary of the Democratic City Committee.

After his election in November 2011, The Inquirer reported that Nocella had been embroiled in a dispute over a 2005 sale of property belonging to Veterans of Foreign Wars Post 6627 in Manayunk. In a deposition taken as part of a lawsuit, Nocella admitted that he received $60,000 in legal fees after falsely claiming he was the secretary of the post when he was not even a member.

Nocella began serving as a Common Pleas Court judge in January 2012.

Documents released Tuesday said Nocella collected $1,875 to handle a woman's divorce case just before his 2011 election to Common Pleas Court. He did not file the necessary paperwork in the divorce case and did not return the fee, despite the woman's attempts to obtain repayment.

In March 2013, the woman filed a disciplinary complaint against Nocella. Three months later, Nocella repaid the money, the disciplinary board found.

Full Article & Source:
Pa. Supreme Court panel disbars Thomas Nocella, former Phila. judge

Ex-Judge Nocella Disbarred by State Supreme Court

Former Philadelphia Court of Common Pleas Judge Thomas Nocella has been disbarred by the state Supreme Court more than two years after his removal from office.

The justices adopted the report and recommendation of the Disciplinary Board, which claimed Nocella failed to disclose in questionnaires from the Philadelphia Bar Association Commission on Judicial Selection and Retention that he had been a defendant or respondent in 24 cases.

Nocella was reviewed by the bar commission in 2001, 2005, 2009 and 2011. In 2011, Nocella was nominated by the Philadelphia Democratic City Committee to fill a judicial vacancy that had arisen between the spring primary and the general election in the fall.

The board said Nocella, when seeking an updated evaluation by the bar commission in 2011, did not disclose that he had filed for bankruptcy; that he had been found in contempt in a Board of Ethics case; that the Internal Revenue Service had filed liens against him for $358,961 and $110,748; that a judgment was entered against Nocella for $923,152 in favor of Czarnecki Profit Sharing; and that a judgment of $306,174 was entered against Nocella in favor of Casimir Czarnecki.

Additionally, the board said Nocella neglected a client's divorce matter when he was elected to the bench in 2011. Nocella had filed a divorce complaint on behalf of Marta Maciuk, but did not inform her that he had become a judge and could no longer work on her case.

"Respondent's neglect of his client Marta Maciuk's divorce matter must not be overlooked. Respondent basically ignored Ms. Maciuk once he was elected as judge in November of 2011," the Disciplinary Board's report said.

Nocella's attorney, Samuel C. Stretton, did not return a call seeking comment.

The board's report said Nocella expressed remorse for his actions, but tried to minimize the misconduct by focusing on the repercussions in his own life.

"In discussing how he had changed, respondent testified that he was 'paying for [his] mistakes' and that he had 'come a long way from being a common pleas court judge to being out of work. So, you're going from someone who was making $200,000 a year to someone who was making $2,000 a month. That's the—honestly, it's that kind of change. Your positions change. Whatever status you had is lost. A lot of my friends have left me,'" the report said.

The report said Nocella was cooperative throughout the proceedings and recognized his wrongdoings.

However, the board noted, "The matters herein are serious and aggravated by the fact that respondent was a judge and held to a heightened standard. Respondent's transgressions offend both the public and the bar and bring disrepute to the profession. Under the circumstances, we unanimously recommend that respondent be disbarred from the practice of law."

In 2013, the Court of Judicial Discipline found Nocella violated the state constitution in the handling of a case in which he was found in contempt of court while working as a lawyer for a political action committee, in addition to failing to disclose the cases in which he was a litigant. The Supreme Court ousted Nocella from the bench based on those findings.

"We believe it to be beyond dispute that a judge—or one who would be a judge—who is willing to lie—and in official documents ... is not one who can be expected to encourage, indeed to insist that truth be spoken in his courtroom," Judge Robert J. Colville said in the opinion for the court in June 2013. "This respondent's relationship with truth and his regard for its importance in his everyday life is gruelingly illustrated" in the instance regarding the political action committee.

Full Article & Source:
Ex-Judge Nocella Disbarred by State Supreme Court

Wednesday, October 21, 2015

Corporate America's Latest Target: Nursing Home Patients

Photo: Mark Phillips | Flickr

John Mitchell, only 69 years old, was recovering from a stroke at a nursing home in Dennis, Massachusetts when -- one week after he was admitted -- staff dropped him while moving him from his bed to a chair. A call to an ambulance was made, but then cancelled when his vital signs seemed to stabilize. Later that night, John became unresponsive. After he was rushed to the hospital, doctors discovered that the fall had caused extensive bleeding in his brain; he died a few days later. It was only after his sons hired an attorney to investigate the circumstances surrounding their father's death that they found -- among dozens of pages in the admission contract signed by John's guardian -- a pre-dispute arbitration agreement.

Fortunately for John's family, a court ruled the clause in their contract unenforceable. But that isn't always the case.

John's story underscores the reality that many new residents face. Nursing homes have complete control over some of the most vulnerable and fragile people in the entire country: people who are gravely ill, who are often cognitively impaired in ways that make it hard for them to protect themselves, are completely at the mercy of these institutions. Unfortunately, nursing homes are increasingly being taken over by huge corporate entities that are often driven more by profit than a sincere commitment to taking care of residents. Thousands of nursing homes across the country have been snapped up by large Wall Street companies. Sixty percent of the market is now occupied by for-profit entities, increasingly private equity groups. One report discovered that in 60 percent of the homes purchased, managers cut the nursing staff to the point where they were providing only one clinical registered nurse for every 20 residents.

Just as they've done in other parts of our economy, these giant corporations are using forced arbitration clauses -- contract terms that say that people cannot sue them, no matter what laws they break, and instead people harmed by illegal acts can only bring cases before private arbitrators who are generally beholden to the corporations. These clauses make it far harder for the victims of mistreatment to hold a facility accountable where there's abuse or serious negligence, and they minimize the incentive to provide the highest quality of care.

The Obama Administration is seriously considering doing something about this. The Centers for Medicare and Medicaid Services has an opportunity to say that nursing homes can no longer receive federal funding if they use arbitration clauses in their contracts. If CMS will take this step, it will return to the nation's most vulnerable population their basic constitutional rights, and let people hold nursing homes accountable in case of abuse and neglect. My organization, Public Justice, just filed extensive comments with CMS urging it to take this opportunity to protect these vulnerable residents.

The Stakes are Huge. While millions of people get caring and competent treatment every day, there are times that the system fails disabled and often elderly nursing home residents in horrifying ways. Far too often, people who can't move are left in one place for so long that they develop pressure sores, and then far too often, are left in their own excrement until the pressure sores become infected. There are other instances where people have actually been intentionally physically abused by people who never should have been put in charge of vulnerable patients. Our comments trace through a number of instances of genuinely horrific treatment, as do comments to CMS from a number of state attorneys' general. Our comments also document in detail how neglect and mistreatment spread and expand when nursing homes are bought up by large Wall Street entities, and how harmful these corporate acquisitions are for real people who are completely dependent on the facilities for medical care, food, everything.

The circumstances surrounding admission to a nursing home are uniquely stressful. It's often an emotionally devastating experience for both the patient and their family. These facilities are often a last resort for patients and families, and the decisions are often made under emergency circumstances. No sane person in that setting is going to be focused on the fine print of an admissions contract, looking to see if the facility is trying to gain some legal advantage and strip the patients of their rights. People are understandably thinking about different things, filled with other feelings. For nursing homes to use these painful moments as a chance to slip arbitration clauses past families is ugly and unreasonable, and the argument "well, everyone knowingly agreed to give up their right to go to court" is unrealistic.

Arbitration Clauses Enable Abuses. As our comments establish, nursing home industry consultants have openly acknowledged and other studies support that arbitration clauses reduce the liabilities of nursing homes. When liabilities are reduced, there is strong evidence that the quality of care gets worse.

In addition, unlike the public court system (where trials are open to the public, press and regulators), nursing homes benefit enormously from the secretive system of arbitration, where the facts about abuses can be (and often are) buried. "Confidentiality" provisions - which really translate into gag orders - and non-transparent, non-public handling make it easier for systemic problems to stay hidden, and to continue.

If nursing homes are permitted to continue opting out of the civil justice system, we can expect to see lower levels of care, and higher numbers of preventable injuries and deaths.

Now Is the Time. CMS has a historic opportunity to do something about this ugly, abusive practice. It should tell nursing homes that they can't use arbitration clauses and still benefit from federal dollars. Protecting desperately vulnerable people is more important than squeezing out an extra percentage of profit for hedge fund owners.

This is not a problem that the government can solve on its own. CMS does some great work, but it doesn't have the resources to police the thousands of nursing homes spread throughout the country. When patients are injured or die due to mistreatment or neglect, they and their families should be able to go to court to protect their own rights. It's been the American system for hundreds of years that injury victims have a right to a day in court, and it shouldn't be thrown overboard at the whim of some Wall Street guys who find secretive private judges a more congenial system.

Full Article & Source:
Corporate America's Latest Target: Nursing Home Patients

MN to feds: Nursing homes shouldn’t ask families to sign away right to sue

Minnesota is among more than a dozen states whose top attorneys want the federal government to make it easier to sue a nursing home over allegations of neglect or wrongful death.

Lori Swanson joined attorneys general from 14 other states and the District of Columbia in urging Congress to ban nursing homes from asking families to sign a contract sending any claims to binding arbitration instead of a court.

Congress is considering a rule that would do that and asked states for input. (Read the states’ comments here.)

The attorneys say residents of long-term care facilities are hurt by “‘take it or leave it’ fine print contracts … in which consumers are required to waive their right to seek judicial resolution.”

A report from National Public Radio uses a Minnesota case to illustrate why critics of the status quo are calling for change.

The network relates the case of Virginia Cole, whose husband went into a coma two weeks after he moved into a nursing home. The family’s lawyer says Dean Cole was found to have become dehydrated at the nursing home and died within a month.

Three private arbitrators upheld the family’s wrongful death claim. But those arbitrators – and attorneys and expert witnesses – charge for their services. After paying those costs, NPR says, the Cole family was left with less then $20,000 from their winning case.

Separate contracts in Minnesota

The CEO and president of Care Providers of Minnesota, Patti Cullen, tells Forum News Service that in Minnesota arbitration agreements are not part of admission to a nursing home, but are presented as a separate contract.

Cullen tells Forum News her group has urged Congress to leave the rules as they are, saying “It is a solution to a problem that doesn’t exist.”

But Swanson says even though the agreement is presented separately, she hears from many consumers who don’t realize they’ve signed away their right to sue.

Noting that family members admitting a loved one to long-term care are often going through a trauma, Swanson told MPR News: “It’s not the type of situation where people are in a great capacity to say, ‘Gee, I noticed here on page 32 this clause.'”

Full Article & Source:
MN to feds: Nursing homes shouldn’t ask families to sign away right to sue

Tuesday, October 20, 2015

Finish reform of guardianship law

Linda Bous lost her husband in January 2014. She lost her freedom in April 2014, when a state-appointed guardian took control of her finances and had the 66-year-old Sarasota woman placed in a locked facility for dementia patients. The hearing to have her declared a ward of the state was held after she was placed in the facility, and Bous says she was not told she could attend.

After months — and a desperate phone call to the newsroom of the Sarasota Herald-Tribune — Bous finally won back the right to control her own life. At that hearing in February, she got her first look at the documents that wrested that control away. “I feel that I was abused, because I had no chance to speak for myself,” she said in court, as reported by the Herald-Tribune.

Bous’s story was one of many told in “The Kindness of Strangers,” a Herald-Tribune investigation into the state’s guardianship system that exposed widespread breakdowns in a system originally intended to protect vulnerable Floridians from abuse and exploitation. (Read the series for yourself at Instead of shielding them, the paper found cases where professional guardians took control of seniors’ lives in often-secretive proceedings. Many claimed fees — sometimes in the hundreds of thousands of dollars — while freezing out families and friends in a process critics described to Smith as “liquidate, isolate, medicate.”

As documented in the series, guardians can exert total control of their wards, forcing legal, financial and even medical decisions on them. In some cases, guardians refused to allow family contact unless the guardians were also present.

The Herald-Tribune’s series prompted legislation in the spring that made it easier to investigate and prosecute suspected wrongdoing on the part of guardians, ordered courts to give greater weight to wards’ wishes and makes it more difficult for guardians to disrupt family arrangements to protect a vulnerable senior’s welfare.

But it didn’t go far enough. Sen. Nancy Detert, R-Sarasota, has filed a bill for the 2016 session that includes better protections — including revamping the state guardianship office with expanded authority to oversee state-appointed guardians. This would replace the current patchwork of county regulation, and give family members and wards a single point of contact for questions and complaints. Counties would have better resources for overseeing guardianships on a local level. The law would also require background checks for professional guardians, and create tougher penalties for guardians who abuse their position.

That last point is increasingly relevant. In Palm Beach County alone, the clerk’s office has investigated more than 800 guardianship cases, and identified more than $4 million in questionable expenditures and diverted assets, the News Service of Florida reported earlier this month. There have been two arrests. Palm Beach County is the only county in Florida with a hotline to report suspected guardianship fraud.

These protections should have been included in the legislation approved earlier this year, but two of the three guardianship bills — including Detert’s — died when the state House of Representatives abruptly adjourned rather than finish budget negotiations with the Senate. This year, state lawmakers shouldn’t allow vulnerable Floridians to be a casualty of political infighting.

Full Article & Source: 
Finish reform of guardianship law

Wetumpka woman charged with elder abuse following yearlong investigation

A Wetumpka woman was arrested on Friday on charges related to elder abuse, according to the Alabama Law Enforcement Agency.

The State Bureau of Investigation major crimes agents executed a search warrant on Friday and arrested Sandra Gayle Humphrey, 52, of Wetumpka .

She is charged with one count of financial exploitation of an elderly person in the first degree, a Class B felony and elder abuse and neglect, a Class A misdemeanor. She is being held in the Elmore County Detention Facility on $16,000 bond.

"The search warrant was the culmination of a yearlong investigation into the financial exploitation of a senior citizen," Secretary of Law Enforcement Spencer Collier stated in a release.  "SBI agents will continue to partner with local partners to investigate those who exploit and abuse our senior citizens."

The District Attorney's Office and Drug Task Force from the 19th Judicial Circuit along with the Elmore County Sheriff's Department, provided valuable assistance in this investigation.

Details on the charges were released. Humphrey's arrest warrant wasn't available for release.

Full Article & Source:
Wetumpka woman charged with elder abuse following yearlong investigation

Nursing home alleged to have lost $100K bracelet

The legal guardian of a non-communicative nursing home resident has sued over a diamond bracelet that vanished from a California facility's safe.

Debra Cahill filed a case in August alleging Rancho Mirage Health and Rehabilitation Center  was guilty of negligence and elder abuse by failure to guard the $100,000 bracelet. A receipt obtained by The Desert Sun showed the bracelet, which belonged to resident Patricia Moss, was put into the safe in November 2014, and was either lost or stolen afterwards.

Cahill's attorney said the bracelet, which was bought for $37,000 almost a decade ago, is now worth $106,000, according to a recent reappraisal. The center is roughly 30 minutes southeast from Palm Springs, CA.

The facility did not return McKnight's call for comment by press time, but its attorney called the case “smoke and mirrors,” in a newspaper account. The nursing home offered a $40,000 settlement last week but was turned down, the attorney said.

Full Article & Source:
Nursing home alleged to have lost $100K bracelet

Monday, October 19, 2015

Alan Miller commentary: Guardian series touched many lives

The old man was among several people who approached me after a recent speech about the day-to-day operations of The Dispatch.

He waited patiently for his turn and then stuck out his hand to shake mine. And with the grip of someone half his age, he held tight and pulled me close.

The man talked about how important the newspaper had been to him and his family during his long life — nearly 80 years, I’d guess. He said the paper is full of information people need to know, and he complimented The Dispatch staff for its work.

Almost as an afterthought, as he squeezed my hand tighter, he offered one more comment:

“I’ve been the beneficiary of your staff’s good reporting,” he said. “That series you did on guardianships — I was one of those people. I was trapped, and I’m a free man now because of what The Dispatch reported.”

We know intuitively that what we do affects lives, but we don’t always know who or how.

The man slipped away before I could ask for more details, but he was talking about the 2014 series titled “Unguarded,” which found gaping holes in how probate courts across the state monitor guardians they appoint for some of Ohio’s most vulnerable residents — the very young and very old, and those with mental disabilities, who are unable to look out for themselves.

The stories, available online at, caused state legislators, probate judges and the Ohio Supreme Court to enact reforms to the guardianship system.

Attorney General Mike DeWine also created guidelines in a handbook that is required to be available to every guardian in the state.

These changes undoubtedly have helped and will help others like the man who said he had been a ward who felt trapped by his guardian.

At the other end of the spectrum of lives affected by this series was a Columbus lawyer who once boasted that with nearly 400 people in his care, he was guardian to more wards than any other.

And he was stealing from some of them. He pleaded guilty in August to four counts of theft from an elderly or disabled person, one count of theft and five counts of tampering with records.

The 65-year-old lawyer was scheduled to be sentenced this week, and faced a maximum of 23 years in prison.

On Oct. 5, the day he was to appear in court on a contempt charge for not following an order to pay back some of his victims, he was found dead of apparent suicide at his Upper Arlington home.

After his death, his heartbroken family issued a statement taking The Dispatch to task for the stories that led to the charges against him.

We were stunned and saddened by his death.

We seek the truth, and what follows revelations of truth is up those who read it. The reactions sometimes can be as shocking as they are profound.

For one man, a series of stories resulted in criminal charges. For another, it resulted in freedom.

Alan D. Miller is editor of The Dispatch.

Full Article & Source:
Alan Miller commentary: Guardian series touched many lives

Perry County, MO coroner found guilty of financial exploitation

KFVS12 News
PERRY COUNTY, MO (KFVS) - A jury has convicted a southeast Missouri coroner of stealing from an elderly woman.

Herbert Miller is the Perry County coroner. He was found guilty of theft and financial exploitation.

According to the probable cause statement, Miller is accused of writing checks totaling $80,600 as a power of attorney to himself on behalf of a 94-year-old woman with dementia and other cognitive disabilities.

The woman appointed Miller as her power of attorney in 2004.

The woman was admitted to a nursing home in Perryville in 2008. Her primary care physician says she has not been competent for many years.

After the woman was admitted, Miller allegedly began writing checks on the woman's account payable to "cash" and to the funeral home he and his wife own, according to the probable cause statement.

Miller is accused of writing the checks from August 2011 to June 2013.

The elderly woman was denied her Medicaid benefits and her bill at the nursing home is not being paid.

According to court documents, Miller admitted to writing the check and claimed they were gifts from the woman.

Perry County commissioners are seeking legal counsel and will release more details later.

His sentencing is set for Dec. 11.

The Perry County Commission issued the following statement on Friday, Oct. 16:
"The Perry County Commission believes, until sentencing is completed, any comment concerning the guilty verdicts brought against County Coroner Herbert Miller on October 15 for theft and exploitation of the elderly would be premature.
"Until such time he is sentenced and the Attorney General’s offices determines a course of action Mr. Miller - as an elected county official, remains by State Law, Perry County’s coroner."

Full Article & Source:
Perry County, MO coroner found guilty of financial exploitation

Southeast Missouri coroner convicted on theft, exploitation of elderly

PERRYVILLE, Missouri — A jury has convicted a southeast Missouri coroner of theft.

Herbert Miller, Perry County coroner since 1995, was charged in 2014 with theft and financial exploitation of the elderly.

The Southeast Missourian reports ( testimony in the trial began Wednesday, and wrapped up Thursday evening, with the jury finding Miller guilty on both charges.

He was accused of taking advantage of an elderly woman when he wrote thousands of dollars in checks from her account.

Miller testified he was unaware of the responsibilities of serving as someone's power of attorney or trustee and said the checks made to "cash" were used to purchase items for the victim and so she could have cash on hand.

Sentencing is set for Dec. 11.

Full Article & Source:
Southeast Missouri coroner convicted on theft, exploitation of elderly

See Also:
Perry County coroner accused of financially exploiting 94-year-old woman

Missouri Coroner (Guardian) Accused of Spending $80K of Woman's (Ward's) Money

Coroner pleads 'not guilty'

Financial exploitation case against Perry County coroner set for trial

Man behind bars for allegedly scamming elderly couple

A man has been booked into Morgan County Jail on charges of theft by deception and financial exploitation of an elderly person, after promising to do repair work on a home and not doing so.

On June 22, 2015, a Decatur couple filed a theft and fraud report against William Robert Payne. Payne, through Patriot Roofing, had accepted $4,500 to do roofing work. The work was never done and Payne did not return the money.

On October 15, Payne was found in Huntsville and taken back to Decatur. His bond is $10,000.

Full Article & Source:
Man behind bars for allegedly scamming elderly couple

Sunday, October 18, 2015

Where the looters and the poachers stalk prey

“The ‘Greatest Generation’ is the greatest generation to exploit.” This quote by Chayo Reyes, a retired Los Angeles Police Department specialist in elder fraud, from a DVD titled “Saving Our Parents” appropriately depicts increasing, yet often unreported, activities targeting today’s elderly and their families.

The assets of older Americans are being looted via actions in which probate instruments such as powers of attorney, wills, trusts or guardianships are used to gain control of property. These actions evolve into an involuntary redistribution of assets (IRA) as ultimate financial resource distribution becomes contrary to the asset owner’s intentions.

Family members are sometimes IRA perpetrators, but non-family individuals can come into an older person’s life with equally damaging results. It can be a premeditated effort or an “opportunity knocks” act. And don’t ever think the elderly don’t exploit each other! A senior woman with no money, an inflated sense of entitlement and a life expectancy of another 10 years or more can easily become a financial predator. The exploited elderly person may not understand (or live to see) the actual IRA action. Instead, honest and responsible people in the target’s life may be left to deal with the aftermath and even become secondary targets — especially if they are heirs/beneficiaries for whom assets are rightfully designated and/or are obstacles to an IRA practitioner’s ultimate success.

Expensive, prolonged legal entanglements as well as intimidation and harassment are common tools used to pressure heirs/beneficiaries to cede rights of inheritance if outright looting is not easily accomplishable.

Because the pool of those willing to exploit the elderly is endless, it is important to be aware of places and venues where today’s predators search for potential victims. The list might be surprising, but remember: The guise of community respectability, professional credibility, even enhanced morality or religiosity can be important entry points into the life of a predator’s next mark. With that, here is a list of where the looters and the poachers stalk prey:
  • Senior centers
  • Government-sponsored lectures (especially through departments/agencies specializing in eldercare, aging)
  • Civic groups (Kiwanis, Rotary, etc.)
  • Churches, synagogues
  • Retirement communities, homeowners’ associations
  • Support groups (church-sponsored and otherwise)
  • Medical facilities, nursing homes, assisted living facilities
  • Estate planning seminars, sales presentations (beware “free food” ploys)
  • Consultations with “professionals” (lawyers, caregivers, accountants, social workers, etc.)
  • Any places that cater to an older clientele (gyms, dance clubs, libraries, restaurants, etc.)
Anecdotal evidence tells of probate judges attending meetings at senior centers and other community venues ostensibly providing seniors with “prepare now for future needs” information. A forum apparently frequented by individuals with Connecticut probate experience depicts a system in which public officials troll for prospective cases to meet the challenge of operating in a state with numerous probate courts constantly vying for justification of their court’s existence. And though Connecticut residents may experience more visible aggression in these pursuits, similar reports are heard across the country.

Meetings sponsored by anyone — government agencies, churches, civic groups, support groups, whomever — can be beneficial for those looking to poach property of the unsuspecting. An IRA practitioner might be the featured speaker or he/she might be in the audience looking to “befriend” unsuspecting marks. Gatherings put on by seemingly respectable organizations can be viewed as safe havens fostering greater trust and openness to those with whom personal contact is made — a point well known to poachers on the prowl. Support groups can be especially rich in potential targets as the group’s commonality (grief, caregivers, divorce, etc.) may increase their emotionalism and vulnerability — another point not lost on IRA stalkers.

A 2005 Los Angeles Times series titled “Guardians for profit” reported:
Conservators find clients by sponsoring breakfasts at senior centers and networking at legal luncheons. Nursing homes call when residents become too addled to pay the rent, wanting a conservator to write checks for them. Hospitals call when patients have outlasted their insurance, hoping that a conservator will move them somewhere else.
Conservators, also known as guardians, use probate procedures to gain control over an individual’s personal liberty and property. Though the Times articles focus on California, these cases are not uncommon elsewhere.

Stories regarding IRA cases within Florida’s probate system were detailed by the St. Petersburg Times in a 1994 Pulitzer prize-winning series called “Final Indignities.” And though published 21 years ago, the same stories are heard today — from Florida and almost every other state.

IRA predators are a fact of today’s life. Due to the wealth transfer getting ready to occur in the next 15 or so years, IRA actions will likely skyrocket. People think proper estate planning will protect them — wrong! People think they don’t have enough assets to be a target — wrong!!

There is no inoculation from the threat of IRA. There is no avoidance of being a potential target. This information is not offered as a broad-based indictment of all organizations and entities, but awareness should exist on the part of those hosting and attending community events. Knowledge of today’s predatory landscape and recognition of the places haunted by asset looters and property poachers will provide an upper hand. And as forewarned is forearmed, stay alert!
–Lou Ann Anderson

Full Article & Source:
Where the looters and the poachers stalk prey

Pinellas County Florida Guardianship Waste & Abuse Hotline

Phone: (727) 45FRAUD (453-7283)
Fax: (727) 464-8386
Public Integrity Unit
Division of Inspector General, Guardian Section
Guardianship Fraud Hotline
510 Bay Ave.
Clearwater, FL 33756

If you suspect physical abuse, please contact:Florida Department of Children and Families
1 (800) 96-ABUSE (962-2873)
TDD (Telephone Device for the Deaf) 1 (800) 453-5145
FAX: 1 (800) 914-0004

What Do I Need To Know When Contacting The IG?
There are several things to keep in mind when reporting fraud, waste and abuse. Immediate reporting is necessary, while facts are still fresh in the mind of the complainant. All reports must answer the questions who, what, when, where, why and how.
Who was involved? (Names, addresses, phone numbers, if available)
What happened? (Summary of events, additional sources of evidence)
When did it happen? (Date, time, frequency)
Where did it happen? (Location, city, state)
Why was it done? (Any known motive for committing such act)
How did it happen? (What scheme was used)

The most successful IG cases are those that include supporting documentation. Reports that are too vague or cannot be corroborated can result in a case being closed without any action taken.

Report Waste and Abuse for Cases Involving Guardianship