Indiana: Power of Attorney May Trump Guardianship Order

An elaborate court ruling that sought to bring family harmony by appointing each of six siblings as co-guardians over a specific area of their elderly mother’s life may have hit a sour note because of a 12-year-old power of attorney which remains valid.

The adult children of Helen Kinney Morris, 89, divided into factions over disagreements about her need for care. Two of the children contended that despite having dementia, Morris was not incapacitated while the other four asserted her memory problems were getting worse and putting her in danger.

In 2015, the Howard Superior Court found Morris was incapacitated because she could not take care of herself or her property without assistance. Putting the woman’s best interests and welfare at the front as well as attempting to repair the family dynamic, the court appointed all the children as guardians but gave each specific duties.

Two of the children, Mary “Molly” M. Kinney and Patrick Kinney, declined to be appointed and later appealed the ruling on the grounds that the guardians are unnecessary because there is a valid power of attorney.

The Indiana Court of Appeals reversed and remanded in In re the Guardianship of Hellen Kinney Morris: Mary M. Kinney and Patrick Kinney v. Paul Kevin Kinney, 34A02-1510-GU-1809.

Under Indiana Code 29-3-5, the court has the ability to appoint guardians. However, I.C. 30-5-3-4 limits a guardian’s power. The Court of Appeals found a durable power of attorney that Morris executed in 2004, which gave Mary Kinney and Paul Kevin Kinney broad powers, was still valid.

Full Article and Source:
Power of Attorney May Trump Guardianship Order

See Also:
NASGA:  Power of Attorney

California May Soon Push Mentally Disabled People to Kill Themselves in Assisted Suicides

California’s new assisted suicide law, or End of Life Option Act, may be revised to allow patients “with significant intellectual disabilities” to request assisted suicide, Angelus reported.

The doctor-prescribed suicide law passed in October 2015 in California and took effect in June.

It allows doctors to prescribe lethal drugs to mentally competent patients who are diagnosed with a terminal illness and predicted to die within six months, according to LA Times.

These parameters were established as safeguards to protect patients, but now they might be changed.

The California Department of Developmental Services is trying to expand assisted suicide to mentally disabled patients in the state.

These patients are extremely vulnerable for coercion and abuse, and may not have the capability of recognizing the implications of their decision to commit suicide.

 The California department said it wants to expand assisted suicide to the mentally disabled, but safeguards must be put in place to keep other residents and medical personnel safe.

Full Article and Source:
California May Soon Push Mentally Disabled People to Kill Themselves in Assisted Suicides
See Also:
NASGA: No One is Safe

What We All Carry: Kathy Greenlee's Final Speech As Assistant Secretary of Aging and ACL Adminstrator

On the topic of dignity ASA Greenlee said:

As I think about our programs and the people we serve, I’m always mindful of the values that run deep within us. I think we carry Dignity as well as anyone I know. The fundamental understanding and acknowledgement of the dignity and worth of every human being is core to our mission, at ACL and at your organization, in your work.

Our ability to carry the value of Dignity has been emboldened by the creation of ACL, by the co-location of programs that serve older adults, people with disabilities and their families. I believe the intrinsic dignity of an older person has been a core value in the field of aging. But I have also witnessed the more succinct focus on this value as the world of aging has crossed the bridge to the world of disability.

“Nothing about us without us.” The clarion call of the disability rights movement. This charge lead to the creation of Americans with Disabilities Act, which was signed into law 26 years ago today. Nothing about us without us makes us stop and realize there are people missing in many of our conversations.

We can’t make good policy about people who are victims of abuse unless we make a concerted effort to include survivors in our work. We cannot develop appropriate support for people living with Alzheimer’s Disease and dementia unless we talk to those people – and follow their lead.

There are many examples of how dignity is imbedded in our work, as it should be. In our conversations about guardianship reform. In our discussions about services for victims of elder abuse. In our conversations with people who have intellectual or developmental disabilities. As we do outreach to diverse communities and families.

In the past year, I traveled to New Mexico and Montana to talk to tribal elders and meet the wonderful program staff who serve them. On both occasions, I was deeply moved by the dignity and stature of older American Indians.

Dignity. We must carry it forward and never lay it down.

Full Speech:
Prepared Remarks of Kathy Greenlee

Call Christina: Professional Guardianship Laws Expanding to Protect Seniors from Exploitation

The state of Florida is cracking down on bad actors in the professional guardianship industry, hoping the latest reform bill, signed into law by Gov. Rick Scott in March, will protect seniors from guardianship abuse.

Last Friday, the Florida State Guardianship Association (FSGA) met in Fort Lauderdale for their 2016 Annual Conference, where officials discussed recently passed SB-232, based on the guardianship audits performed by the Clerk & Comptroller in Palm Beach County for the last 25 years.

"Historically, the clerks have had the statutory obligation to monitor the guardianship's financial information," Clerk Sharon Bock, from the Palm Beach County Clerk & Comptroller, said. "In 2013, that was enhanced to be able to actually investigate and audit and get down really in the nitty-gritty of these files."

Now that the Clerk of Courts is partnering with the Department of Elder Affairs, however, Bock said the new law fills that hole by requiring a collection of that information all in one place.

"That gap has now closed," Bock said. "We will now, through our partnership with the state, be reporting the outcome of our investigations and audits."

"There are sometimes some bad apples," Secretary Sam Verghese, from the Florida Department of Elder Affairs, said. "What we've sought to do with the legislature has been to fix some of those gaps that have been there, so that if there is someone who's being taken advantage of from abuse, neglect, exploitation, financial fraud, there's a way to actually go after the bad apples so more people aren't hurt."

In creating the Office of Public and Professional Guardians (OPPG) within Department of Elder Affairs, the passing of SB-232 requires that the OPPG provide monitoring and disciplinary oversight of professional guardians, including the ability to revoke a guardian's registration. It also establishes a complaint department for families and those in guardianships, and certifies and supervises court-appointed guardians.

This is in addition to HB-5, which was signed into law last year in order to make it more difficult for guardians to seize control of their wards' assets.

"This in fact will stop, or we hope will deter the kind of unethical and fraudulent practices that we may have seen in the past," Bock said.

Full Article and Source:
Call Christina:  Professional Guardianship Laws Expanding to Protect Seniors from Exploitation

What Alzheimer's Feels Like From the Inside

I was up again at 4 a.m. the other night, one of five nocturnal ramblings in the early morning, the new me. No sleep. Picking my way in the dark, familiar territory of a home on Cape Cod where I have lived with my family for 34 years.

I fumbled into the bathroom as I felt the numbness creep up the back of my neck like a penetrating fog, slowly inching to the front of my mind. It was as if a light in my brain had been shut off. I was overcome by the darkness of not knowing where I was and who I was. So I reached for my cellphone that substitutes as a flashlight, and called the house. My wife, deep asleep in our bed just 20 feet away, rose like Lazarus from the grave to grab the phone in angst, fearing a car crash with one of the kids or the death of an extended family member.

It was me, just me. I was lost in the bathroom.

Source:
What Alzheimer's Feels Like From the Inside

'Sweetheart Swindler' Sentenced for Theft of $59,000, Exploitation of Elderly Adult

A woman who has been called a “sweetheart swindler” was sentenced Monday for withdrawing money from an older man’s bank account.

Phanta Daramy, 57, of Northeast D.C., was sentenced to seven years in prison with all but two years suspended and five years of supervised probation.

According to police statements and court documents, Daramy met John Andrews, 81, inside of a Giant grocery store and eventually married him. Between September and October 2015 she allegedly withdrew $59,000 from his Bank of America account. When Daramy later attempted to withdraw another $50,000, the bank called police.

Montgomery County Circuit Court Judge Anne K. Albright also ordered Daramy to pay restitution of $65,000 to Andrews and have no further contact with him.

Full Article and Source:
"Sweetheart Swindler" Sentenced for Theft of $59,000, Exploitation of Elderly Adult

Couple Says Grandson Scammed Them Out of Their Home

Helen Kawecki said she never dreamed that she would have to leave the Thousand Oaks home she and her husband have been living in for more than five decades.

The couple in their late 80s will be evicted Monday after their grandson sold their house without telling them, the Kaweckis claimed.

Hank Kawecki said it’s worse than the ultimate betrayal. “It’s kind of bad. It’s your own family,” he sighed.

It was the couple’s neighbor who broke the sad news to them. “They came down with some computer work, and they said: ‘Your house is for sale.’ I said: ‘No, it’s not.’ ”

Full Article and Source:
Couple Says Grandson Scammed Them Out of Their Home

New Program to Root Out Fraud in Florida's Guardianship Program

Charles Waldon spent decades working several jobs while raising a family of five children. He invested in real estate in South Florida and in Georgia, all aimed at building a nice nest for retirement.

"I worked all my life, you know, and tried to build up a retirement," said Waldon via Skype Monday. "I think I did a pretty good job."

But Waldon can’t enjoy the fruits of the retirement he worked so hard to build. The 85-year-old former firefighter is in the midst of a family conflict between his youngest daughter, Carla Alger, and his daughters – Sandra Dunn, Inez Howard and Glenda Waldon. The family’s strong divisions over money, care of their parents, and properties and produced accusations of exploitation from both sides. So Alger asked Miami-Dade Probate Court to help protect her parents and the retirement funds they need during their senior years, she said.

"Granted I started the process out of desperation because I thought if I don’t do something they [her sisters] are going to take mom and dad,” Alger said while in court last week.

Her sister Sandra "Sandi" Dunn disagrees.

“My dad is on food stamps. She’s preventing him for accessing his own money,” Dunn said.

Last year, a Miami-Dade probate judge appointed a professional guardian for the couple – Charles and Peggy Waldon – after a panel of doctors said they were incompetent. Peggy, who suffers from dementia and requires round the clock care, is a ward of the state.

No Financial Oversight
With Florida’s 3.7 million people over 65 years of age, elder exploitation has become the crime of the 21st century, experts said. The guardianship system is driven by money and entrenched in relationships with all the ward’s assets used to pay the fees of all attorneys, medical experts and the guardian, sometimes exhausting seniors’ savings.

"When you take away someone’s constitutional rights and you put into third party hands – a total of $270 billion in the United States – it is just simply rife for fraud, waste and abuse,” said Sharon Bock, Palm Beach County Clerk and Comptroller.

Charles and Peggy Waldon are among 8,000 guardianship cases in Miami-Dade probate courts system with virtually no financial oversight or a system in place to watch over how the money is spent. Miami-Dade is hardly alone – a few counties in the state have watchdogs looking over the trouble guardianship system.

In recent years, Palm Beach County has stepped into that role by using trained auditors and fraud investigators who work for the clerk and comptroller’s office under the division of the inspector general in charge of investigating fraud, waste and abuse and by performing in-depth audits.

"I think that now the whole United States has seen that a court system without an intermediary, like the clerk, is a conflict of interest. That’s been proven,” Bock said.

To address this issue across the state, Florida Elder Affairs Secretary Sam Verghese and Palm Beach County Clerk Sharon Bock announced Friday a pilot investigative program during Florida State Guardianship Association annual conference held in Fort Lauderdale.

"If you are unscrupulous and you are looking for an easy way to make money or especially targeting the elderly, you are not going to look to guardianships any more. We are closing that hole,” Bock said.

The program will include a hotline where people can file a complaint that would spark an investigation into how senior’s money is being spent by a guardian.

Financial Turmoil
Waldon doesn’t have control over his money, including his firefighter’s pension, since he left Florida. Early this year, the guardian filed a monthly budget with Miami-Dade probate court to cover Waldon’s personal expenses in Georgia like electric, water, health insurance bills and groceries, documents show.

"I’m not getting anything except Social Security and food stamps," Waldon said. "I went to Social Security and they said that my guardian had no right to seize my Social Security. They gave it to me."

In the meantime, their guardian, attorneys and caretakers are racking up bills and will get paid from the Waldons’ money. But how much they are getting paid is a mystery because documentation such as monthly invoices is not part of the public file.

Full Article, Video, and Source:
New Program to Root Out Fraud in Florida's Guardianship Program

Probate Court Critic Should Pay for Breaching Settlements, Estate Guardian Says

J. Albert Diaz Circuit Judge Michael A. Genden

Coral Gables attorney Liz Consuegra Messianu and her client, probate court-appointed guardian Comprehensive Personal Care Services Inc., want to hit critic Sam Sugar where it hurts—his bank account.

In a recent court filing, Messianu argues that Sugar has cost Comprehensive Personal Care money, damaged the “entire Florida probate community” and provided numerous media interviews that violated confidentiality clauses in two settlement agreement.

“Sugar must pay economic damages,” Messianu wrote in a petition dated July 12.

The filing comes in an ongoing adversary proceeding in a guardianship case pending before Miami-Dade Circuit Judge Michael Genden. Hearings in the case are set for August and October.

The longrunning dispute focuses on the estate of Sugar’s mother-in-law, who died in 2013. The court battle pits Messianu and Comprehensive Personal Care against Sugar, a semi-retired doctor who heads an elder abuse advocacy group called Americans Against Abusive Probate Guardianships.

Messianu’s client was plenary guardian of property belonging to Sugar’s mother-in-law, Idelle Stern, a wealthy widow whose four daughters spent years fighting over her multimillion-dollar estate.

Sugar, meanwhile, joined his wife, Judy, in battling her sisters Joyce Genauer, Rochelle Kevelson and Tikvah Lyons. Each side accused the other of siphoning millions from Stern.

Sugar, who has lobbied for legislative changes and guardianship reform in Florida and elsewhere, is an outspoken critic of the probate courts and guardians. He claims that Stern’s estate dwindled from $12 million to $6 million over five years because of mounting legal fees.

The sisters claim Sugar manipulated their frail mother to gain control of her wealth. After they petitioned to have their mother declared incompetent in 2010, the court made Stern a ward of the state and appointed Comprehensive Personal Care Services as guardian.

Until then, the Sugars had been managing Stern’s affairs, but Comprehensive Personal Care Services replaced them and filed suit for elder abuse and civil theft.

Settlement agreements reached in 2011 required Judy Sugar to repay $750,000 out of her inheritance from Stern’s trust. The agreements also included confidentiality clauses barring the parties from making or encouraging “negative, disparaging or derogatory” statements about each other.

Messianu’s recent petition against Sugar claims that he’s violating the confidentiality provisions in the settlements. It says Sugar has engaged in “a brazen pattern” of spreading false information through various media outlets, including the Miami Herald, radio interviews, social media posts, YouTube videos and publications on Sugar’s website.

“Sugar’s continued breach of the settlement agreements must be enjoined to stop his wanton and malicious publication of libelous accusations against the guardianship court and the parties, which have no basis in fact,” Messianu, a partner at Lubell Rosen, said.

Full Article and Source:
Probate Court Critic Shoudl Pay for Breaching Settlements, Estate Guardian Says

See Also:
Fight Over Big Estate Draws Fire for Running Up Legal Fees

Senate Judiciary Chair Charges Federal Shortcomings On Elder Financial Abuse

Senate Judiciary Chair Chuck Grassley charged Wednesday there are shortcomings in what the federal government does to protect seniors from financial abuse.

“(Victims) have not received all the help they need,” said the Senator.

As one example of a void, he noted the Justice Department does not collect data on elder financial fraud.

At the start of a hearing on what he called “the crime of the 21st century,” Iowa Republican Grassley announced he and the Judiciary Committee’s lead Democrat, Connecticut’s Richard Blumenthal, soon will introduce a bill to beef up protection.

The legislation would provide for more effective interagency coordination, training to improve the investigation and prosecution of elder abuse, victim assistance to elder abuse survivors, improved data collection, and tougher penalties for senior scamsters.

Full Article and Source:
Senate Judiciary Chair Charges Federal Shortcomings On Elder Financial Abuse

Nursing Homes are Taking Control Over Patients

Choosing to put a loved one in a nursing home is a difficult decision. Defenseless nursing home residents face risks of falling victim to neglect and abuse. But lately, a disturbing trend is appearing amongst nursing homes nationwide. The very institution holding itself out as the protector and caregiver of the elderly is, in fact, deceitfully and shamelessly exploiting the elderly population through the use of legal guardianship proceedings. The reason that nursing homes petition the courts for guardianship over their residents is clear: bill collection. And its turning golden years into nightmares.

What is Guardianship?
When a person becomes mentally incapacitated due to age or infirmity, guardianship is a legal means of transferring decision-making powers to someone else, typically a trusted loved one or family member, who can act in the best interests of the incapacitated elderly individual. Nursing Homes, however, have found a new, sinister way to use guardianship proceedings as a sword instead of a shield. These nursing homes are petitioning courts for guardianships over residents who they claim have not paid their nursing home bills. The petitions not only ask the court for decision making powers related to health, but also those related to the elderly individual’s finances. Guardianship petitions are being filed with alarmingly increasing frequency. In a randomized sample of 700 guardianship cases filed in Manhattan over a more than 10-year period, Hunter College found that over 12 percent of those cases were brought by nursing homes.

Seizing Guardianship to Collect Debts
Nursing home debt collection through court-appointed guardianship has a mixed track record in the country’s court system. A handful of judges have sided in favor of the petitioning nursing home. Other judges, however, have stated that the Mental Hygiene Laws governing these petitions was never meant to allow guardianships as a means of financial collection. For their part, nursing homes claim that they have no other choice if they want to stay afloat. In any event, such petitions are costly to nursing home residents and their families. It is a strong-arm method of intimidation, and a hope that a judge will rubber stamp the nursing home’s malevolent tactics.

How an Attorney Can Help
The Nursing Home system has, unfortunately, become one more concerned with bill collection and finances than with the welfare of its residents. It is best to be prepared for the future. Residents of nursing homes, those who are planning to be residents, and their loved ones should seek out an attorney in their area to create a plan in anticipation of the possibility of being faced with one of these petitions. Seniors must be aware that they can have a power of attorney in place; a health care directive; and a will, but all of that planning can be overturned by a guardianship being established by a nursing home that includes control of the senior’s finances.

Medicaid Asset Protection should be a major consideration. Medicaid Asset Protection is the process of protecting assets from having to be completely spent to pay for the devastating expenses of long term care, while helping to ensure that you or your loved one get the best possible long term care and maintain the best possible quality of life. The process is also called Life Care Planning. Life Care Planning can and should be started while you are still able to make legal and financial decisions. If you are over 65, we recommend that you begin your asset protection planning as soon as possible.

Contact the Law Office of Cohen & Jaffe, LLP
If you have any legal questions concerning nursing home abuse, feel free to contact our law firm at the Law Office of Cohen & Jaffe, LLP.

CANHR: STOP SB503: A Nursing Home Nightmare

Imagine you are an elderly person who recently suffered a fall at home, injuring your leg and ankle. You are sent to a hospital for treatment. At the hospital, you develop an infection and suffer mild delirium. As a result of the delirium, you are prescribed Ativan, a powerful tranquilizer, and Ambien, a sleeping pill, to make sure you stay in bed to protect your leg. You are sent to a nursing home for rehabilitation. You do not sign an admission agreement with the nursing home.

At the nursing home, you receive a notice that the nursing home physician, who has never met you, has determined you are not capable of making your own treatment decisions and so the nursing home will make them for you. The physician has proposed you continue to receive Ativan and Ambien, although they make you groggy and dizzy. He has also proposed the amputation of your leg because of the injuries sustained in the fall. The notice tells you that if you want to keep your leg or avoid the sedating drugs, you must contact an attorney and file a lawsuit.

However, you cannot go to an attorney's office because the physician has ordered that you may not leave the facility due to your incapacity. You have no options.

Full Article and Source:
Stop SB503:  A Nursing Home Nightmare

Nursing Home Residents Still Vulnerable to Abuse

People entering nursing homes need to know that all reasonable safeguards are in place to ensure quality care. But federal rules to be finalized soon fail to hold nursing homes truly accountable to patients, their families or the law.

At issue are arbitration clauses in nursing home contracts that require consumers to settle any disputes that arise over products or services through private arbitration rather than through lawsuits. Corporations of all sorts love forced arbitration because it overwhelmingly tilts in their favor and shields them from liability. But in the process, it denies justice to consumers, investors, patients and others who find they have no legal recourse when wronged.

Forced arbitration is especially problematic in nursing home disputes, which are generally about care, not money. (Medicare andMedicaid pay many nursing home bills.) Typical claims involve neglect or abuse leading to broken limbs,dehydration and untreated pain.

The proposals, by the Centers for Medicare and Medicaid Services, should have banned pre-dispute arbitration clauses in nursing home contracts. Instead, they basically condone them as long as these homes take some legalistic steps to explain and disclose the clauses and do not make signing them a condition of admission. Those provisions skirt the real problem. Prospective patients do not have the necessary information to make a decision about signing the clauses. How could they before a dispute even arises? In essence, families are being asked to anticipate the likelihood of grievous harm and legal ramifications. A nursing home admission is stressful and confusing enough without your being asked to sign away your right to sue.

The proposed rule acknowledges “concerns” about forced arbitration and notes that regulators solicited comment on whether the clauses should be banned. A ban is needed — and if nursing home regulators won’t impose one, the White House Office of Management and Budget, which will review the rule before its scheduled release in September, needs to ask for a revision. If the industry wants to seek private arbitration it should be allowed to do so, but only after a dispute arises, not before.

Source:
Opinion:  Nursing Home Residents Still Vulnerable to Abuse

Who Guards the Guardians? Part One

They paid their tab at the Waffle House and put the plan in motion. Phil and John Bradley guided their mother, Rosamond, to the back seat of Phil’s car, and John took the seat beside her. Driving through the familiar North Dallas streets, it wasn’t long before Rosamond realized they weren’t headed to her home.

“What are you doing?” she asked. It was John who answered, “We’re taking you to Lubbock.”

Though Rosamond protested the whole way, her sons didn’t know what else to do. It was March 2009, and at 73 she insisted on living alone, hours away from them. Sometimes she didn’t take her medication; sometimes she took too much. Phil had been awakened one night recently by a call from the Dallas police. She’d smashed her bathroom window and alarmed the neighbors with her screaming, an incident that landed her in a psychiatric hospital for six weeks.

When they arrived at Rosamond’s new home at an Alzheimer’s care center, she refused to leave the car. According to notes in her medical record, she “did exhibit some aggressive behavior.” Rosamond recalls, “I struggled and kicked John where I shouldn’t have.” A Lubbock psychiatrist described Rosamond as “expressive/noisy,” “hyperactive” and “anxious/suspicious,” noting that she exhibited “bipolar disorder, psychosis and delusions.”

“It was terrible,” Phil recalls. “There were times that she couldn’t feed herself. She would do group therapy and it was just an absolute disaster.” Still, she kept demanding to go home. So, in late April, Phil filed a request in county court for authority over his mother’s affairs. Lubbock County Judge Tom Head reviewed the doctors’ reports and appointed Lubbock attorney David Kerby to advocate on Rosamond’s behalf. Rosamond says she never met the lawyer, who did not return the Observer’s calls. Without Rosamond present, which is common in guardianship cases, Head found her legally incapacitated. Phil won the right to decide where his mother lived, who she saw and how she spent her money, even if she objected — which she did, vehemently.

Judge Tom Head

Rosamond says she was so heavily medicated that she spent much of her time in a fog. She couldn’t leave the nursing home without supervision, and only heard after the fact that her sons had sold her Cadillac and begun moving furniture out of her house. She began to see the move as a ploy by her sons to access her money, and she felt helpless. “I had no contact with anybody,” she recalls. “It was like being all alone.”

Source:
Who Guards the Guardians?

Who Guards the Guardians? Part two

Guardianships are increasingly common, a trend typically attributed to an aging populace and scattered families.

In Texas, the number of guardianships grew 60 percent from 2011 to 2015. Nearly $3 billion in personal wealth is under control of guardians in Texas, according to one recent estimate from state researchers. 

But even those who oversee the system and write its laws are only recently coming around to a troubling fact: In much of Texas, there is nobody watching these cases.

Ten large Texas counties run their own guardianship systems, with legally trained probate judges, court-appointed investigators and visitors — employees or volunteers who check up on people under guardianship — to ensure that a guardianship is still necessary and isn’t being used as a tool for abuse or theft. Dallas County, where Rosamond had lived for most of her life, has such a system. But she was in Lubbock County when her son Phil went to court. Lubbock County reported having 1,425 guardianships in August 2015, ranking eighth in the state both in total guardianships and guardianships per capita. The county has no system to ensure that guardians file required annual reports on the person they’re looking after, nor staff to check for evidence of fraud.

In recent years Lubbock has come to epitomize the dangers of guardianship when nobody’s watching. As Rosamond Bradley recovered and tried in vain to have her rights restored, courts in Lubbock and nearby counties placed more than 50 people who did need protection in the care of strangers who lived hundreds of miles away, visited rarely, and walked off with their money. Lubbock has particularly weak oversight. Last fall, state investigators began a survey that is revealing a lack of accountability and potential for abuse all over Texas. Several years ago, Lubbock conducted a similar self-audit, but after briefly reckoning with its shortcomings, the county’s guardianship system appears as ill-equipped as ever.

What qualifies you to run a stranger’s life? In Texas, it’s a brief class followed by a 100-question test. Private guardianship is a small but growing profession, and Texas’ 358 certified guardians come from all backgrounds. Some are nurses or social workers. Others have little or no relevant experience.

Most guardianships, by far, are awarded to family members or friends. But if someone doesn’t have a family member nearby, or a judge decides the family is a risky choice, the court appoints a professional, typically paid from the life savings of the person they’re looking after. In Texas, 72 such professionals work within a state-run program in the Texas Department of Aging and Disability Services (DADS), with supervisors who review their work. Locally run programs in a few large counties employ dozens more, and around 50 active guardians are independent.

In 2005, [Former El Paso Probate Judge Max] Higgs began alerting lawmakers that the state had become far too permissive. He spread stories of elderly and disabled people living in squalid conditions, even after visits from Adult Protective Services. Lawmakers passed reforms that year, requiring licenses for professional guardians, among other changes.

Attorney Terry Hammond

In both rounds of reform, though, [Attorney Terry] Hammond says, lawmakers hardly touched the most basic troubles with guardianship. Texas, he says, still lacks a statewide safety net to make sure nobody slips through the cracks, and puts far too much authority in the hands of county judges who may not be qualified to make legal decisions. “This system may have been appropriate in 1845 or 1865 or even 1910,” Hammond says. “But it’s entirely inappropriate for the 21st century.”

Full Article and Source:
Who Guards the Guardians?

Who Guards the Guardians, Part three

In April 2013, four years into her ordeal, [Rosamond Bradley] the retired schoolteacher, who volunteered for years with her church and had traveled to all seven of the earth’s continents, appealed to Head for freedom. In a handwritten note she pleaded with the court, “Dear Sirs, I feel very competent to take care of myself. I request that all my civil rights be restored.” A year passed and Rosamond heard nothing.

She wrote again: “I want my rights restored! Thank you.” This time her note caught the attention of Gene Valentini at the county’s office of dispute resolution, which is Lubbock’s closest thing to a court investigation office. Valentini mentioned her case to Terry Hammond, an El Paso attorney who is active in the national guardianship community. He flew to Dallas to meet Rosamond. Because Phil still managed all of her bank accounts, Hammond allowed her to retain him with a nylon American flag.

Hammond had a Dallas County court visitor check in on Rosamond, and the court visitor confirmed what Rosamond had been saying all along: Even if she had once needed a guardianship, she didn’t anymore. She could balance her checkbook, the report noted, and seemed to get along fine with Jim helping to care for her. A report from Rosamond’s doctor in Dallas affirmed she was fit to make her own decisions.

Head ignored the recommendations. He determined the Dallas court visitor lacked standing to intervene, and kept the guardianship in place. Another year of legal wrangling passed before he finally transferred her case to Dallas. Rosamond’s sons hired a new attorney in Dallas, who argued, against the court visitor’s recommendation, to maintain the guardianship. It took another year for the court to finally restore her rights.

“We’re finding that the vast majority of cases have problems,” [Office of Court Administration Director David Slayton] says. Most common are missing annual reports from guardians about a person’s well-being or their finances. In other cases, there’s no record of a court-ordered bond, which the law requires to guarantee a guardian won’t walk off with his or her ward’s money. In Webb County, Slayton says, 80 to 90 percent of the guardianships are missing some piece of vital paperwork, such as annual reports on the person’s welfare, or an account of their spending from the estate. An earlier review from Slayton’s office, after a quick look at 14 counties including Lubbock, mentioned finding letters from concerned family or friends tucked into the files. “Often it did not appear that the correspondence or documentation had been provided to the court,” the report said. “In some instances, even though the court may have been made aware of the query, the matter did not appear to have been addressed.” In this light, Rosamond Bradley’s unheeded calls for help from Head seem at once less remarkable and even more troubling. “There’s very little oversight occurring in those [cases] to ensure there’s no exploitation,” Slayton says.

It’s clear, he says, that the problem goes well beyond any one county or judge — counties simply have nowhere near enough money to ensure that people under guardianship are being kept safe.

Full Article and Source:
Who Guards the Guardians?

Who Guards the Guardians, Part Four

Last fall, Lubbock County court administrator Cryctal Spradley took another look at the county’s guardianships on her own. She took a sample of 300 cases and asked basic questions, including whether guardians were filing paperwork on time and whether they had posted a bond adequate to their ward’s estate. What she found “shocked the conscience,” she wrote. “Proper case management has been lacking among court and clerk staff,” she wrote, while guardians’ compliance with reporting rules was “abysmal.” One-third of the cases she examined should have been closed because the ward had died or regained capacity, or because they were misfiled. In half the cases, guardians didn’t file annual paperwork. The rate was the same whether the guardian was a family member or a court-appointed professional. In two-thirds of cases, the court — typically [Judge] Head — simply waived the requirement to post a bond on the estate. Such a failure, she notes, “can be, per statute, considered gross neglect.”

Lubbock County Judge Tom Head

Years after its wake-up call, Lubbock County is doing little to protect people it has stripped of their rights. Counties with far fewer guardianships have come up with some oversight. Lubbock’s court visitor program lasted about a year, until 2013. “We were just told that the county decided not to do it anymore,” says Baker, who volunteered as a visitor before starting her own guardianship practice. “That was the only explanation we got.”

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Who Guards the Guardians?

The True Link Report on Elder Financial Abuse 2015

The fraud research community has long suspected that losses due to elder financial abuse were worse than the $2.9 billion previously estimated. True Link’s data science team, looking for clarity and an accurate assessment of the problem, decided to tackle this question head-on.

The results of this research, The True Link Report on Elder Financial Abuse 2015, reveals that seniors lose $36.48 billion each year to elder financial abuse — more than twelve times what was previously reported. What’s more, the highest proportion of these losses — to the tune of $16.99 billion a year — comes from deceptive but technically legal tactics designed to specifically take advantage of older Americans.

According to Shawna Reeves, Director of Elder Abuse Prevention at the Institute on Aging, “Those of us working in the field have long known that the United States is in the throes of an elder financial abuse epidemic. Unfortunately, we've lacked well-designed studies capturing the true nature and scope of the problem. This study is a game changer. Not only does it challenge the previous studies but it serves as a clarion call for further research and action.”

In our 2015 report, you can learn more details about the size and severity of the problem, how seniors are being targeted, what puts them at risk, and how to protect yourself and your loved ones. Other important findings include:

*Small losses are evidence of an underlying vulnerability: A senior who lost as little as $20 in a year to exploitation could be expected to lose $2,000 a year to other types of fraud.

*A person who receives just one telemarketing phone call per day is likely to experience three times as much financial loss as someone who receives no or only occasional telemarketing calls.

*It is estimated that 954,000 seniors are currently skipping meals as a result of financial abuse.

Source:
The True Link Report on Elder Financial Abuse 2015

"Constitutional Requirement for Separation of Powers"

by NASGA Member David Arnold

The root cause of guardianship abuse is that the present system of managing guardianship violates the principle of separation of powers required under the constitution to provide checks and balances. Cut the root and the whole plant will die.

The difference between democracy and dictatorship is that no one in a democracy has absolute power. When there is no separation of powers the result is dictatorship.

Under the present system the court is responsible for selection and appointment of guardians in addition to its defined duty of prosecuting abuse by guardians. The court has sole power over guardianship.

If there is collusion between a judge and a guardian there is no legal recourse! If there is a complaint against a guardian the judge is both a party to the dispute and the arbiter of the dispute. This is a conflict of interest.

Judges cannot be forced to prosecute a guardian they appointed. This forces judges to admit they made a mistake. This violates the constitutional right of judges against self incrimination!

The answer to the problem is to separate authority for appointment and oversight of guardians from authority for prosecuting guardians.

Separation of powers can be accomplished by transferring authority for managing the affairs of incapacitated elder persons from the court to the state Elder Service agencies.

My state of Massachusetts has good Elder Service agencies that are capable of managing guardianship. This separation of powers would prevent collusion between a judge and a guardian and allow a judge to prosecute a guardian as a disinterested party without fear of self incrimination.

Having the Elder Service agency be responsible for selection and oversight of guardians does not represent a net increase in cost since the court would no longer have this duty.

Source:
NASGA Soapbox

ABC Team 10: Man Cheated Out of His Life Savings

Ed Ramsey, 81, lost his money in a sweepstakes-related scam.

Source:
Local Man Scammed Out of His Life Savings

81-year old man held hostage for years in elder financial abuse case

A New York man held an 81-year-old veteran hostage for at least four years in order to collect his benefits, police said Thursday, weeks after the US House of Representatives passed legislation to call attention to financial elder abuse.

Perry Coniglio, 43, is accused of holding an elderly veteran with dementia at the U.S. Academy Motel in Highlands, New York, near West Point, in a room adjoining his own. The motel is located next to a police station, according to the Associated Press.

Mr. Coniglio was able to collect a "tremendous" amount of monthly funds through Social Security benefits, pension payments, and food stamps, police said, without specifying the amount.

Police were recently tipped off to the situation by concerned neighbors, one of whom had captured the former Marine being abused on video.

Coniglio is being held on $15,000 bail and is being charged with grand larceny and unlawful imprisonment, among other charges.

Elder abuse has become a particularly pressing issue as the population ages, as The Christian Science Monitor reported last month. In the vast majority of cases, the abuser is a family member.

A study from the British Geriatrics Society released in June found that more than a third of caregivers engage is potentially abusive behavior. Often, the abuse occurs when demands on carers become too much for them to be able to meet.

"Findings highlight the need for support and training for carers, so that they can care with confidence, have the skills to manage difficult caregiving situations and recognise when the pressures associated with caregiving may be harming the older person and know at which point they should seek help," the researchers wrote. "Community-based professionals such as public health nurses, GPs, social workers and home care staff need the skills to recognise behaviours that may act as early warnings."

The researchers said the data shows that family caregivers need more support to fulfill their duties.

One in 5 Americans will be in the "older" demographic by 2030, according to the US Census Bureau. Five million elderly adults are abused each year, according the National Center on Elder Abuse, 90 percent abused by family members.

Fighting elder abuse has become more of a priority on both the state and federal level in recent months.

The House of Representatives unanimously passed legislation that would protect financial advisers who try to fight the financial exploitation of the elderly, as Investment News reported.

The legislation gives financial advisers the ability to report abuse without fear of being prosecuted for violation of privacy laws. It also discusses training on how to identify financial abuse of the elderly.

"While Washington has been gridlocked for a long time, I'm very pleased that the House was able to pass this critical legislation, and I am hopeful the Senate will quickly follow suit," Dale Brown, the president and chief executive of the Financial Services Institute, said in a statement. "The Senior Safe Act is a big step forward in the prevention of elder financial abuse across the country."

The Senate could vote on a similar legislation this year.

One the state level, laws went into effect July 1 in Alabama, Indiana, and Vermont that require financial advisers to alert the state if they suspect elder financial abuse.

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81-year old man held hostage for years in elder financial abuse case

Elderly couple pays $12,000 in "grandparents scam"

AMITY, N.Y. (WKBW) - New York State Police are warning Allegany County residents about a scam that is making the rounds in the Amity area that has claimed at least two victims.

Police say an elderly couple received a phone call Thursday afternoon from a man who claimed to be a police officer from another town. The caller said their grandson had been stopped for a traffic violation and drugs were found in the car.

The grandparents were told that the grandson would need to pay $2,000 in bail and $4,000 in fines in addition to completing eight hours of community service.  The caller told them they could take care of the bail and fine by purchasing $6,000 in iTunes cards and calling back with the serial numbers on the cards. The grandparents did as they were instructed.

Friday morning the grandparents received another call, this time from someone claiming to be their grandson's lawyer.

This time, the "lawyer" told the grandparents that there was another defendant involved in the incident, and their grandson contacted that person even though he was not allowed to do so.  The "lawyer" told the grandparents they would have to provide the serial numbers for another $6,000 in iTunes cards. Again, the couple complied.

A third call came in, but this time a younger relative was at the house and took the call. The man knew it was a scam and hung up the phone, but the elderly couple had already been scammed out of $12,000.

New York State police recommend setting up a "secret password" with your family members so you ensure the call is valid.  They also remind residents to never give out any personal information or send money without verifying the information the caller is telling you.

If you have been a victim of a scam, please call police. The Allegany County Office for the Aging can also help.

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Elderly couple pays $12,000 in "grandparents scam"

Laws that protect the elderly

The use of resources such as wills, trusts, power of attorneys, and guardians can be vital for those who have family and loved ones living in nursing homes or assisted living facilities. However, there are some resources or services that are sometimes used to hurt, abuse, or neglect the very person they are meant to protect. Most states, including N.C., have laws and regulations that are designed for the protection of the elderly or disabled adults.

North Carolina has established the “Protection of the Abused, Neglected, or Exploited Disabled Adult Act.” This act is oftentimes used to protect disabled adults who are being abused, neglected or exploited. Abuse refers to knowingly causing physical pain, injury, or mental suffering, holding or confining a disabled adult for no reason, or a caretaker intentionally denying medical services or services needed to maintain mental and physical health. Caretakers can be family members or anyone who volunteers or is contracted to be responsible for the care of a disabled adult. Neglect refers to situations that involve disabled adults who live alone and are not able to care for themselves or disabled adults who have caretakers that are not providing appropriate care or services. Exploitation occurs when someone illegally uses a disabled adults’ resources to make money or for their own personal advantage. Anyone who knows or has a reason to believe that a disabled adult is being abused, neglected, or exploited has a duty to report this information to the Department of Social of Services director in the county that the abused adult lives in.

Once the DSS director receives a report concerning the possible abuse of a disabled adult, the director will perform or arrange for a DSS worker to perform an evaluation of the situation to determine if protective services are needed and if so what services DSS needs to provide. If DSS determines that a disabled adult is in need of protective services, the director has the authority to make arrangements for services to begin immediately if the disable adult agrees. In cases where the disable adult has agreed to allow DSS to provide protective services, but the caretaker is trying to prevent or block those services the director can obtain a court order that will keep the caretaker from intruding.

However, if the abused adult refuses to allow DSS to provide protective services, those services will not be provided. On the other hand, if the abused adult does not have the ability to consent or give DSS permission to provide the services, the director can get a court order that will give DSS the authority to provide the services.

Furthermore, anyone that is involved in the abuse, neglect, or exploitation of a disabled or elderly person could endure severe consequences. For example, activities or actions of individuals that involve the exploitation of a disabled or elderly adult could result in that person being criminally charged with a felony. The amount of money or property involved in the actions will determine the level or seriousness of the crime. Additionally, any persons or workers in a facility that are responsible for providing care for a disabled or elderly person could be criminally charged or sued in civil court for certain actions of abuse or neglect.

Not only is it always important to know your rights, but it is also important to know the rights of those who aren’t able to protect themselves. Contact an attorney to learn more about the rights of disabled or elderly adults and laws and regulation used to help protect them. Be Informed. Be Prepared.

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Laws that protect the elderly