Saturday, July 15, 2017

500,000 People Die Every Year from Infections Caught in Long-Term Care Facilities

Despite longer live spans, almost half a million people die of healthcare-associated infections (HAIs) each year, many of them preventable.

The decision to move a loved one into a long-term care facility is difficult. Besides worry about how an elderly loved one will adjust, there are concerns about care, potential abuse, and infection.

The graying of America is creating a large-scale reshuffle in how Americans handle healthcare at older ages.

A recent report suggests a decrease in the number of nursing home facilities, with an attendant increase in home care services and assisted living facilities. Baby Boomers, in better health than their predecessors, are pushing for a better quality of life — and better healthcare — than is typically conjured by the term "nursing home." As well, continuing dramatic swings in federal healthcare policies are resetting reimbursement policies for which long-term healthcare facilities have long made a profit.

The economics and demographics of long-term health care impact the service provided to one of the most vulnerable sectors in America — the elderly. A recent presentation delivered at the annual conference of the Association for Professionals in Infection Control and Epidemiology (APIC) laid out stark facts about some of the nation's 15,654 nursing facilities.

Assisted living facilities are residential communities that provide limited nursing or supportive care. Nursing homes are medical care facilities that also provide housing. In some areas, there are many complexes that have areas for assisted living, with the capability of moving into nursing facilities when the need arises.

Poor Practices Lead to Higher Rates of Deadly Infection

In a press release discussing the research, APIC shared sobering facts about life in long-term healthcare facilities. Over 1.4 million people live in a nursing home in the United States. Despite rules for infection control and requirements for antimicrobial stewardship programs, many nursing facilities just don't measure up.

The results in the presentation were from assessments of 43 long-term healthcare facilities in Tennessee and Washington by public health officials. They were looking to gain an understanding of how regulatory tools and assessment practices are applied. The results are not pretty.

Tennessee: In the state of Tennessee, healthcare officials used an assessment tool developed by the Centers for Medicare and Medicaid Services (CMS) to survey infection prevention protocols in long-term care facilities.
  • Between January and November 26, 23 assessments were conducted throughout the state. These surveys looked for adherence to the criteria mentioned in the CMS tool.
  • In Tennessee nursing homes, an average of only 12.5 total staff hours were spent on prevention of infection per week.
  • The officials found 72% of facilities offered online training for hand hygiene, but only 50% offered in-person feedback on performance.
  • Similarly, although 62% of facilities offered online training on the use of personal protective equipment (PPE), approximately 50% never checked how the staff was using the PPE.
  • On requirements for antibiotic stewardship programs, nine out of ten facilities were out of compliance.
Washington: in the 20 assessments performed in Washington state, the statistics were sadly somewhat similar:
  • Although all the facilities had the required infection prevention professionals on staff, only 10% of the infection prevention specialists had training in infection prevention or control.
  • These staff members spent only 11 hours per week on infection prevention, and many had little experience, and operated with "limited guidance."
  • Of these facilities, while 75% had infection control policies in place, only 40% reviewed their policies on an annual basis.
  • Only 15–30% of these nursing homes engaged in ongoing assessment of feedback process to improve best practices.
In the press notice, study researcher, Dorothy MacEachern, an infection preventionist with the Spokane Regional Health District, noted: "Our analysis identified clear gaps in infection prevention practices and the urgent need to improve infection control infrastructure in long-term care facilities."

The Danger of HAIs and the Elderly

Choosing the right long-term healthcare facility can be a matter of life and death. In grades assigned by a non-profit group, unrelated to the study and based on federal statistics, Tennessee got a "D," for nursing care, and Washington a "C."

Besides the very young, the elderly are a group susceptible to frequent and serious infection. Often, older adults are already suffering from a chronic ailment like diabetes, heart disease, or respiratory problems. These issues put them at greater risk for infection in a facility without good disease prevention protocols.

HAIs contracted in a long-term care facility can become chronic, and even deadly. Infections common to healthcare facilities include:
  • Methicillin-resistant Staphylococcus aureus (MRSA): A multi-drug resistant staph infection, MRSA is more prevalent in nursing facilities and hospitals. The infection can be intractable, causing chronic infection, or death.
  • Clostridium difficile (C. diff): This chronic and often deadly diarrheal infection can quickly kill an elderly patient. Triggered by antibiotics wiping out the body's natural gut bacteria populations, C. diff is difficult to treat once established. The infection causes about half a million HAIs per year in the US.
  • Urinary tract infections: UTIs are a common HAI, and are contracted in healthcare settings by patients who require a urinary catheter. According to the Centers for Disease Control and Prevention, between 15–20% of patients receive a catheter during hospitalization. These infections also occur in residents of nursing homes with catheters.
Despite population trends toward longer life, patients residing in some long-term health care facilities in the US may have life cut short by preventable healthcare-associated infections.

Full Article & Source:
500,000 People Die Every Year from Infections Caught in Long-Term Care Facilities

Gulf Breeze attorney sanctioned for embezzlement, money laundering

A Gulf Breeze attorney has been effectively disbarred in connection with federal charges of embezzlement, money laundering and fraud, according to a news release from the Florida Bar.

Richard Micheal Colbert, received a disciplinary revocationwithout leave to seek readmission, effective immediately, following a May 11 court order, the release said. The release notes, "disciplinary revocation without leave to reapply is tantamount to permanent disbarment."

Colbert was admitted to practice in 1987, according to the release.

Last year, Colbert pleaded guilty in court to 13 federal felonies including theft, embezzlement and misappropriation of bank funds, money laundering, bank and mail fraud and false statements to a financial institution.

The charges stem from Colbert's conduct while he was the manager of Beach Title Services, a subsidiary of Beach Community Bank, according to a news release from the U.S. Department of Justice. Colbert reportedly signed and submitted false documents to Bank of America and Beach Community Bank. He also embezzled and misapplied funds being held at Beach Community Bank, then conducted a series of financial transactions to launder the funds he had embezzled, according to the release.

Colbert is still awaiting sentencing in connection with the charges, according to court records. The DOJ release says Colbert faces a maximum of 30 years in prison for each of the conspiracy, false statement, and theft/embezzlement/misapplication of funds charges. For each of the money laundering charges, Colbert faces a maximum of 10 years in prison.

The sentencing hearing is currently scheduled for 1 p.m. July 17.

Full Article & Source:
Gulf Breeze attorney sanctioned for embezzlement, money laundering

NHS Tayside patient’s five-and-a-half-year wait for discharge from hospital

New figures have revealed that one NHS Tayside patient waited five-and-a-half years in hospital after being declared fit for discharge.

A Tele investigation shows one patient’s discharge was delayed for 2,017 days due to “complex arrangements to live at home” needing to be carried out.

Another two patients were kept in hospital for the same reason for three-and-a-half years and just under three years respectively.

In Dundee, two patients needed to wait 615 days while arrangements were made for them to live at home and another waited a total of 444 days. In Angus, one patient had to wait 343 days for a specialist facility to be found.

Another three patients were held up in hospital while guardianship was established, with the trio spending 289, 279 and 194 days respectively waiting to be discharged after being declared medically fit.

John McAllion, executive for Dundee and Scotland Pensioners Forums, said more funding was required to provide the services necessary to allow patients to be cared for in the community.

He said: “The theory behind the new system is to reduce the number of beds in hospitals and increase the number of people being cared for in the community so that they can be discharged.

“The theory behind their policy is fine and I don’t think anyone would disagree with the idea that people who don’t need to be in hospital should be brought back into the community.”

Mr McAllion said the health board was on the brink of a “crisis”.

He added: “We will probably end up in a situation where there are not enough beds to meet he demand of people who need to be in hospital.

“Taxes will need to rise to pay for things if public services, like the NHS, are to cope with the demand that is being placed upon them.”

Age Concern Dundee’s senior manager Patrick Delargy said that resources and funding were meaning that care packages were not in place in time for people to transition from hospital into the community.

He added: “The central issue that we hear about is how does the resources get to the person at the time when they need it, when they need to get out of hospital.”

People have also experienced standard delayed discharges — ranging from 89 to 233 days.

The longest wait was for a patient in Perth and Kinross who waited 233 days for an assessment.

Another waited 168 days for specialist housing provision.

In mental health services around the region, 20 people saw their discharges delayed.

There was 13 men and seven female patients delayed in Carseview Centre, Kingsway Care Centre, Murray Royal Hospital, Royal Victoria Hospital, Strathmartine Hospital and Whitehills Health and Community Care Centre.

An NHS Tayside spokeswoman said: “NHS Tayside has been working very closely with the three health and social care partnerships and third sector partners in Angus, Dundee and Perth and Kinross to build sustainable solutions that seek to reduce unscheduled care and demand and avoid unnecessary delays in discharging patients from hospital.

“We are also expanding our enhanced community support model of services that cares for people in their home settings, helps avoid unnecessary hospital admissions and ensures patient discharge from hospital is not delayed.”

Full Article & Source:
NHS Tayside patient’s five-and-a-half-year wait for discharge from hospital

Friday, July 14, 2017

Who’s guarding the guardians? Court oversight didn’t stop trust account looting

Attorneys on June 21 rushed to remove Desert State Life Management trust company as conservator for a 65-year-old developmentally disabled woman living in Albuquerque.

But, a new lawsuit alleges, the looting of a $600,000 trust fund she and three other disabled women relied upon to live had already happened.

What makes the case of J.W., as she is referred to in the lawsuit, different from other tragic client stories that have come to light is that Desert State Life Management, in addition to being J.W.’s trustee, also was appointed by a state district judge to act as conservator to help manage her finances.

That court appointment in 2014 added – or should have added – another layer of oversight.

Desert State already was subject to review by the state Financial Institutions Division as a nonprofit trustee company certified to invest and manage client funds.

In its additional role as court-appointed conservator with broader powers, Desert State also was required by law to submit an annual report and financial accounting to the judge.

Publicly available docket sheets on J.W.’s conservator case show Desert State filed annual reports in 2015 and 2016 with state District Judge Valerie Huling of Albuquerque.

But an attorney for J.W. says neither report showed how much remained in J.W.’s Desert State trust account, although each of the annual reports included notes stating that accountings were attached.

“But they weren’t attached,” said Kelly Stout Sanchez, an attorney for J.W., on Friday. “There was no accounting.”

Stout Sanchez said she isn’t blaming the judge or court administration and doesn’t know where the accountings went, if they were filed at all.

Guardianship/conservatorship case files are kept secret from the public by law, but J.W.’s new attorneys were able to obtain them.

“At this point we have what’s in the court file. Unfortunately, the conservator reports did not clear anything up. It just gave us more questions and concerns about what’s going on,” Stout Sanchez said.

A Bernalillo County District court spokeswoman said Friday she couldn’t comment about the annual reports, citing the confidentiality law. The Code of Judicial Conduct in New Mexico bars judges from commenting about pending cases.

Since the financial loss, J.W. and “those responsible for her care, have been unable to pay the bills at her assisted care facility and all other bills for her daily necessary living expenses,” states a lawsuit filed against Desert State by Stout Sanchez and her law partner Michael Hart on June 28.

“Specifically, Defendants (Desert State and others) billed for services and work as though the services were professional and in the best interests of J.W. when in fact professional services were not performed competently or not performed at all, and upon information and belief, misspent and embezzled J.W.’s funds.”

Huling appointed Desert State as conservator without requiring the company post a bond. A check of other such cases shows judges typically don’t require such bonds to ensure performance of conservators.

Huling appointed attorney Charles Reynolds as J.W.’s new conservator on June 27. Because of her disabilities, J.W. also has a court-appointed guardian.

Her lawsuit is among the latest developments in the legal saga of Desert State. State regulators say a recent financial examination showed more than $4 million missing from client trust funds. The nonprofit trust company was subject to annual examinations by the state Financial Institutions Division, but Desert State hadn’t been examined since 2008.

State and federal court records allege Desert State CEO Paul Donisthorpe began moving client trust funds into his own personal bank accounts and companies beginning in 2013.

FID is currently seeking court approval to assume receivership of the company and wind down operations.

J.W. and her sister were among four disabled women who were beneficiaries of a special needs trust set up by a Sandia Laboratory engineer who died in 2008.

Wilkerson M. Howard, a U.S. Army veteran of World War II, adopted the sisters when they were girls and set aside funds for their long-term care and for the other two beneficiaries.

The trust fund amounted to about $600,000 when Desert State assumed trusteeship in 2013, according to J.W’s lawsuit. Now the FID has advised “there’s almost no assets left with Desert State,” attorney Stout Sanchez said last week.

The lawsuit names Donisthorpe, his recently divorced wife, Liane Kerr, Desert State director Helen Bennett and Donisthorpe’s four other business ventures as defendants.

Bennett, who served as a volunteer board member, has been assisting authorities in their investigation, and contends in court records that she had no access to or control over trust funds.

At the time of the FID examination that began in March, only Donisthorpe and Bennett remained on the board of the nonprofit trust company.

Previously, under different management, Desert State specialized in providing guardianship and conservatorship services for special needs clients like J.W.

Donisthorpe, who reportedly suffered brain damage in February after a suicide attempt, is no longer operating the company, located in Downtown Albuquerque.

A state FID attorney said last week it is unclear where Donisthorpe is living. Meanwhile, the U.S. Attorney’s Office, contending in a court document that Donisthorpe defrauded trust clients through a criminal scheme, is seeking forfeiture of three of Donisthorpe’s properties, in Albuquerque and Angel Fire.

Attorney Stout Sanchez said on Friday that J.W.’s lawsuit is an attempt to recover as “much money as possible from what was in the trust.”

And what will happen to J.W. and the other beneficiaries?

“That,” she said, “is the concern.”

Full Article & Source:
Who’s guarding the guardians? Court oversight didn’t stop trust account looting

See Also:
FBI joins probe of trust company accused of taking clients’ funds

Panel fields input on adult guardianship system, plans Santa Fe meeting Friday

A commission tasked with studying the state’s guardianship system for adults who lack the capacity to make decisions about their own care and financial management has been gathering public input from around the state on how courts can improve the way they handle these sensitive cases.

A legal guardianship — usually for an elderly person, or a person with mental illness or a developmental disability — removes some of a person’s rights and often involves family disputes.

State Sen. Gerald Ortiz y Pino D-Albuquerque, one member of the commission, said the panel has heard about several frustrations that family members and others face while trying to navigate the guardianship system. One of the main issues raised so far, he said, is that confidentiality in the cases — aimed at protecting the privacy of people with guardians — makes it difficult for family members to get information about how a case is proceeding or the care of a loved one.

The 16-member New Mexico Adult Guardianship Study Commission, appointed in April, will hold a public meeting Friday in Santa Fe — its fourth in the state but its first in the city — to collect comments from local people on how to overhaul the system.

The commission is scheduled to give an initial report to the state Supreme Court in October.

Ortiz y Pino said some of the concerns raised about the guardianship system involve procedural barriers and delays. For instance, he said, court-appointed guardians are required to file annual reports disclosing fees and other information, but the court does not have a system in place for ensuring the reports are filed and that the information in them is accurate.

And, he said, hospital representatives in Alamogordo told the panel that when they petition the court to appoint a legal guardian for a patient who cannot make medical or financial decisions, it can take up to two months for a hearing to be set.

The commission also will examine the use of mediation to try to solve some issues before a case goes to court, Ortiz y Pino said.

Right now, he said, mediation is optional, not mandatory.

Commission members Tim Gardner, president of the nonprofit advocacy group Disability Rights New Mexico, said his organization opposes guardianship petitions on behalf of people with disabilities who don’t want to give up all of their decision-making power and still have the ability to make some decisions for themselves.

For example, he said, some people are able to make decisions about health care or housing, but not financial management.

Other people, he said, might be mentally capable of making decisions for themselves, but don’t have the communication skills to voice their wishes.

“So they get put into guardianships that seem inappropriate,” Gardner said.

He proposes examining new approaches to guardianship petitions that give people involved more say and creating a system that allows for limited guardianships, which would provide safeguards but also protect a person’s independence, he said.

“Not to say we don’t think there is a role for guardianships,” Gardner said. “But we have found there are many cases of folks put into guardianship petition where there could be less invasive alternatives put into place.”

Patricia Galindo, a staff attorney for the state Administrative Office of the Courts and vice chairwoman of the commission, said the state has made changes to the way guardianship cases are tracked.

Officials hope to examine the first full year of data available under the new system at Friday’s meeting, scheduled from 8:30 a.m. to 4 p.m. in Room 317 at the Capitol.

Full Article & Source:
Panel fields input on adult guardianship system, plans Santa Fe meeting Friday

Jim Flynn: Help for seniors in danger of exploitation

Jim Flynn
Although senior citizen status has its advantages ($1 fishing licenses, for example), most people would agree they are outweighed by the disadvantages.

One disadvantage is susceptibility to financial exploitation. A case recently decided by the Colorado Court of Appeals reminds us that elder financial exploitation is on the rise, in part, because of a growing elderly population.

In the Court of Appeals case, Angela Dominguez, a caregiver for an elderly man, Arlen Owens, managed to get herself named as the pay-on-death beneficiary on three of Arlen's bank accounts that totaled more than $100,000.

After Arlen's death, these pay-on-death designations were challenged by Arlen's brother and, after a trial, a judge ruled that Dominguez indeed used "undue influence" to add herself to these accounts. The judge ordered the funds be returned to Arlen's estate, and he tried to keep the horse in the barn with a legal device called a constructive trust - essentially, the court taking control of the accounts.
But this was apparently too little, too late, and Dominguez pocketed the money. When she couldn't - or wouldn't - return the money, the judge slapped her with a contempt citation and sentenced her to six months in jail.

"Undue influence," as you might expect, is a squishy legal concept. Under the Colorado Criminal Code, at least, it's defined as "the use of influence to take advantage of an at-risk person's vulnerable state of mind, neediness, pain or emotional distress." Undue influence along with incapacity are the two main tools in the toolbox of someone wanting to challenge a will.

Per the Court of Appeals decision in the Owens case, these same tools are available to challenge nonprobate transfers.

There are lots of these around, in addition to pay-on-death designations on bank and brokerage accounts. Included are beneficiary designations on life insurance policies and retirement accounts; beneficiary deeds, which allow for the nonprobate transfer at death of real property; and, newest on the list, a nonprobate transfer on death procedure for motor vehicles.

Although Dominguez's jail sentence came out of a contempt citation in a civil probate case, elder financial exploitation - and other kinds of abuse of at-risk individuals - is a crime. In fact, an entire article in the Colorado Criminal Code deals, in great detail, with crimes against individuals who are vulnerable to exploitation and abuse because of age, mental or physical impairments, or both. This portion of the Criminal Code begins with a legislative declaration that penalties for crimes against at-risk persons should be more severe than crimes against the rest of society.

In addition to bulking up the Criminal Code to deal with the exploitation and abuse of at-risk individuals, the Colorado General Assembly also has imposed a mandatory reporting obligation on people involved in health care, law enforcement, fire protection, social work, banking, government services and just about everyone else who comes in contact with elders.

If someone covered by this obligation observes exploitation of an at-risk elder, or has reasonable cause to believe an at-risk elder has been exploited or is at risk of being exploited, the matter must be reported to a law enforcement agency within 24 hours. For purposes of this reporting requirement, an at-risk elder is anyone 70 or older, regardless of physical or mental condition.

A willful failure to report is a Class 3 misdemeanor. Once a report is filed, law enforcement and county social services agencies are supposed to go into action to investigate and protect the victim.

Full Article & Source:
Jim Flynn: Help for seniors in danger of exploitation

Thursday, July 13, 2017

Marti Oakley to Moderate Panel at the Annual Whistleblower Summit

Every year, whistleblowers involved in many different human rights issues gather at the annual Whistleblower Summit in Washington, DC. It's a huge event and is expected to be even bigger this year.

This year, for the first time, guardianship abuse will be included as a summit topic of the Judicial Integrity Panel. Marti Oakley will be moderating a panel consisting of Danny Tate (NASGA Legislative Liaison), Jean Kasem (personal experience) , and Brian Kinter (Judicial Accountability Movement activist).

For those who don't know Marti, she has been devoted to this cause for seven years, after interviewing NASGA member Sara Harvey (wife of victim Gary Harvey) on her radio show (T.S. Radio) and then not being able to sleep after that interview. Over the years, her show has given victims a platform to tell their stories and to discuss reform and remedies. Those who never had a voice before were given a voice on Marti's show.

She has given of her time unselfishly, researching cases, interviewing potential guests ahead of her show, and following up with guests after the show is over. She was the first person to take on this issue on the radio and her particular style has earned her a growing audience that has become a force in this movement.

And she does it all for free, because she cares about guardianship abuse and those who are suffering because of it, and she wants to fix the problem. She is the very definition of an advocate/activist and she is an inspiration for those who are afraid to stand up when standing up is essential. It is more than fitting that she be honored by being selected as a moderator of this important forum.

The Whistleblower Summit is July 27th and 28th and the public is welcome to attend!

CLICK HERE for more information on The Whistleblower Summit

Newbury Park nursing home pays in class-action settlement

A highly-rated Catholic nursing home in Newbury Park has agreed to pay $345,000 and will undergo spot inspections of health records in the settlement of a class-action lawsuit alleging patients were being given powerful drugs without required consent.

The long-awaited settlement was approved by Ventura County Superior Court Judge Rocky Baio in May and involves the nonprofit Mary Health of the Sick Convalescent and Nursing Hospital and family members of former residents of the facility. It calls for the nursing home to use procedures to ensure doctors explain the benefits and risks of psychotherapeutic drugs to residents or their legal representatives.

Those discussions encompass drugs that carry black box warnings of extreme side effects and increased death risks for patients with dementia.

"I'm an only child and my dad was the whole world. I trusted them with his life," said Melisse Sullivan of Thousand Oaks, alleging her father was prescribed black box drugs at Mary Health of the Sick without her informed consent. "I just want them to be held accountable. I just don't want it to happen to anyone else. That's my point."

Representatives of the nursing home — run by nuns from the Servants of Mary, Ministers of the Sick, who live on the premises — denied all allegations of wrongdoing as part of the settlement. They said they agreed to the settlement to avoid the costs, risks and distraction of continuing a legal fight that started nearly five years ago.

"Anyone can say anything they want in a complaint," said Dawn Phleger, a San Diego lawyer who said the decision to settle was aimed at allowing the sisters to focus their resources on care, not litigation.

"The sisters had a really good reputation in the community and we wanted to make sure they were able to keep that reputation going," she said. The nursing home has a five out of five stars rating from the federal agency that runs Medicare and Medicaid.

Plaintiffs say the high rating attracted them. But they alleged doctors at the nursing home prescribed powerful drugs without discussing the impact of the drugs to residents, family members or people with power of attorney designations.  (Click to Continue)

Full Article & Source:
Newbury Park nursing home pays in class-action settlement

North Carolina Lawyer Convicted of Embezzlement From Clients

WINSTON-SALEM, N.C. (AP) — A disbarred lawyer who had offices in three major North Carolina cities has pleaded guilty to charges that he embezzled about $100,000 from clients.

The Winston-Salem Journal reported that 47-year-old Devin Ferree Thomas of Charlotte entered the plea I nWinston-Salem on Monday to six counts of embezzlement.

Thomas had been a personal injury lawyer with offices in Winston-Salem, Greensboro and Raleigh.
Forsyth Superior Court Judge David Hall ruled that Thomas must serve 10 days in jail, as well as 50 hours of community service and five years of supervised probation.

Thomas has paid $100,000 in restitution to the North Carolina State Bar, which distributed the money to those from whom Thomas took the money.

He is also subject to random drug tests and searches and seizures without a warrant.

Full Article & Source:
North Carolina Lawyer Convicted of Embezzlement From Clients

Nashua woman charged with exploitation of the elderly

NASHUA — A local woman was arrested for allegedly taking financial advantage of a senior she was helping with day-to-day tasks.

Deborah Bernard, 51, of 57 Tyler St., No. 804, was arrested Thursday morning by Nashua police after a months-long investigation prompted by a letter from the Bureau of Elderly Adult Services that expressed concern the victim was being exploited.

According to police, the investigation revealed Bernard made multiple unauthorized withdrawals from the victim’s bank account for her own personal use. In total, more than $1,500 was taken, police allege, but they did not disclose the total.

Financial exploitation of the elderly is a Class A felony punishable by up to 15 years in prison and thousands of dollars in fines.

Bernard’s bail was set at $15,000 cash or surety.

Anyone with information regarding this case can contact Nashua police at (603) 589-1665.

Full Article & Source:
Nashua woman charged with exploitation of the elderly

Wednesday, July 12, 2017

Judge in guardianship case denies claims he is biased

ALBUQUERQUE, N.M. — Albuquerque state District Judge Alan Malott this week shot down a recusal attempt by a woman seeking a new judge in her 4-year-old lawsuit against her mother’s former corporate guardian and conservator.

Judge Alan Malott
Malott ruled that attorneys for Leonie Rosenstiel presented no evidence to show that he couldn’t act impartially in the case and should recuse himself.

Rosenstiel is suing the firm Decades LLC on behalf of her mother, Annette Rosenstiel, who was deemed mentally incapacitated and placed under a court-approved guardianship and conservatorship beginning in 2003.

Rosenstiel’s attorneys contended the judge’s participation earlier this year on two discussion panels about guardianship issues would cause a reasonable person to believe he was biased and unable to fairly and appropriately rule on Rosenstiel’s lawsuit

Rosenstiel, whose mother died in 2012, alleges that the company mismanaged her now-deceased mother’s finances and property, failed to protect her interests, and negligently and improperly handled her mother’s affairs. The case is set for trial in October.

Rosenstiel’s attorneys had questioned, in part, the propriety of Malott’s appearance April 5 on a panel that included members of the guardianship industry. The panel included Greg MacKenzie, an attorney who has represented Decades in Rosenstiel’s case. The luncheon discussion was sponsored by the Albuquerque Lawyers Club.

The panel topic was titled “The Truth Underlying the Reporting on Guardianships/Conservatorships in New Mexico,” and Rosenstiel’s attorneys contended that the explicit purpose of the discussion was to address articles in the Albuquerque Journal about matters “that included Defendants’ (Decades LLC) performance as a guardian or conservator.”

The recusal motion also cited Malott’s March 22 appearance at a public Town Hall on guardianship issues sponsored by the Journal and KANW-FM. Malott was the court’s representative on the panel.

Decades, in its response, stated that Rosenstiel’s lawsuit was never discussed during the Albuquerque Lawyers Club presentation and MacKenzie didn’t organize the event. Rosenstiel’s motion is “filled with suggestion and innuendo, yet fails to present sufficient evidence that would require Judge Malott’s disqualification,” stated Decades’ response.

Malott in his ruling also stated that there was no evidence presented by Rosenstiel’s attorneys to support the conclusions that he was biased.

He pointed to “counsel’s self-serving conjectures that merely participating in these unrestricted and multi-partisan public events establishes improper ‘ex parte’ communications and requires recusal.

“Holding otherwise would discourage a judge from participating in both law-related educational activities and extra-judicial community activities,” he wrote. “It would also discourage the development of a better public understanding of the way courts function and the court’s role in our society.”

Malott added that the parties and their attorneys are “reminded the appropriate place for the trial is in the Bernalillo County Courthouse, not the ‘Court of Public Opinion.’ ”

Full Article & Source:
Judge in guardianship case denies claims he is biased

See Also:
Plaintiff in guardianship case wants the judge to step aside

Contra Costa DA Faces Possible Felony Embezzlement Charges

The state Attorney General's Office is considering filing felony embezzlement charges against a Bay Area district attorney for his alleged personal use of campaign funds, according to court documents obtained by NBC Bay Area on Tuesday.

The investigation into Contra Costa County District Attorney Mark Peterson stems from his alleged use of $66,000 in campaign monies for personal expenses, according to an affidavit filed by the state AG's Office. A search done last month of Peterson's bank accounts revealed campaign committee funds were used to pay for items at grocery and jewelry stores and other retailers such as Guitar Center, court documents show. Committee funds were also transferred multiple times into Peterson's personal bank accounts.

According to a search warrant return, investigators last week detained Peterson in Antioch while they seized his iPhone, iPad and appointment calendar as evidence to support felony charges.

"There's no doubt that what's happened to Mr. Peterson casts shadows over the employees at the office and the good work we do every day," deputy district attorney Kristen Busby said.

Peterson says he simply borrowed the money and had intended to pay it back. But the affidavit says Peterson failed to disclose he'd borrowed any money. Investigators are also considering possible felony perjury charges.

Both prosecutors and defense attorneys said the criminal investigation is warranted.

"The appearance is horrifying. The appearance is somebody who's committing crimes is prosecuting other people," defense attorney Dan Russo said. "He's a bright guy, he's a good lawyer. What was he thinking?"

Peterson not only faces the possible criminal charges, but a civil grand jury also filed an accusation calling for his removal from office. He will appear before a judge on that matter Wednesday.

Peterson did not respond to repeated requests for comment Tuesday.

Full Article & Source:
Contra Costa DA Faces Possible Felony Embezzlement Charges

Trial ordered for defendant in exploitation of elderly

A rural Carthage man has been ordered to stand trial on charges that he defrauded two elderly victims in separate home improvement scams.

Leroy E. Stark III, 27, waived a preliminary hearing Thursday in Jasper County Circuit Court on one count of financial exploitation of an elderly person and was ordered bound over for trial following a preliminary hearing on a second count of the same offense.

Associate Judge Joe Hensley set July 24 for Stark's initial appearances on the charges in a trial division of the court.

Probable-cause affidavits allege that Stark got a 78-year-old man to pay him $900 on July 13, 2016, to paint the roof and one side of his barn. Stark purportedly climbed onto the roof and sprayed a black substance believed to be some sort of sealant, climbed back down and told the victim he had to go get some ladders to finish the job but never returned.

The second count pertains to the swindling of an elderly woman Sept. 12 of last year on a home improvements job involving some trimming of trees and removal of gutter guards for which he was paid $715. An affidavit alleges that he trimmed a few limbs but did not haul them away and did not finish the work on the gutter guards as promised.

Full Article & Source:
Trial ordered for defendant in exploitation of elderly

Tuesday, July 11, 2017

Guardianship of the Infantilized Elder: A Pipeline to the Institution Industrial Complex?

Chronologies for aging move, by clocks and calendars, from past to future across the lifespan. But not without exception. When it comes to social status for some individuals, time seems to reverse course. Teenagers demanding adult status complain relentlessly over being treated like a young child.

We notice a helicoptering parent, babying a third grader with smothering overprotection. This phenomenon has been referred to, psychodynamically, as infantilization-treating an individual as if they were much younger than their chronological age. Earlier in my career, I became interested in the ways that adults with intellectual disability were infantilized, patronized, and robbed of their autonomy (Fettgather, 1987), including how they were given double-binding mixed messages to act like an adult even as they were treated like children (Fettgather, 1989). I am now turning to questions of how elders, especially those experiencing impairments associated with aging, may be diminished by practices associated with a similar social construct.

In recent years, I became acquainted with a legal device, “plenary guardianship”, wherein guardians retain all rights, powers and decisions over wards who are believed to lack capacity to care for themselves. This device seems to mirror the psychosocial experience of infantilization, but with potentially more devastating and permanent consequences. Based on a concept of parens patriae (parent of the nation) dating back centuries, the king had an explicit duty to protect those presumed to lack the capacity for managing their own lives-state sanctioned infantilization. Similarly, the contemporary “plenary guardian” is deemed ‘parent to the elder’ (or intellectually/psychosocially disabled person) who has been determined to lack adult capacity in a socio-legal construction of perpetual infancy-childhood. Plenary guardianship takes all decision-making from the ward and places it in the hands of an all powerful guardian.

In the spring of 2014, I attended the 3rd World Congress on Adult Guardianship. The conference highlighted worldwide, growing concerns and critiques of plenary guardianship. Many contemporary deconstructions of guardianship suggest that too often it is undue, overbroad and overprotective (Martinis, n.d., One Person, Many Choices; Blanck and Martinis, 2015). I argue that even benevolent guardianships may infantilize, fostering dependence and regression. And for elders of means, there is considerable anecdotal evidence of forced isolation with estate plundering by public and professional guardians. US Government Accounting Office Reports (GOA) beginning in 2004 (Government Accountability Office, 2004), and subsequent reports through 2012, show consistent patterns of financial exploitation and neglect. For example, one guardian embezzled $640,000 from the estate of an 87 year old man with Alzheimers Disease. Protective services discovered the man residing in a filthy basement and wearing just an old shirt and a diaper.

Beyond property, the very body of vulnerable elders becomes a commodity in an institution industrial complex that unites private business with government interests with an emphasis on profit making and social control (similar to the prison industrial complex). For example, Liat Ben-Moshe (Ben-Moshe, n.d., The Institution Yet to Come) emphasizes the nexus of impaired mind-bodies with an institution industrial complex dedicated to careerism: “political economists of disability argue that disability supports a whole industry of professionals that keeps the economy afloat, such as service providers, case managers, medical professionals, health care specialists etc”. With the absolute authority of a plenary guardianship, the concern is that guardians may force institutionalization into nursing home facilities where profit is the bottom line-a kind of pipeline into the institution industrial complex. Charlene Harrington, researcher at UCSF investigating care at nursing homes, summed up her findings, “Poor quality of care is endemic in many nursing homes, but we found that the most serious problems occur in the largest for-profit chains” that keep costs low to increase profits (Fernandez, 2011). A 2015 study at Hunter College also found that 12% of guardianships were initiated by nursing homes as a means to collect debt from residents (Bernstein, 2015).

Isolation is often achieved by limiting or denying visitation to hide poor living conditions or inadequate care from public scrutiny.

[We] align ourselves with an international group of stakeholders who believe that incapacity should not be presumed (Dinerstein, 2012). Alternatively, we are committed to the presumption of capacity and to advancing supported decision-making as an alternative to plenary guardianship for elders and people with intellectual and psychosocial disabilities. In this model, decisions, supported by one or more persons, are made by the individual who has ultimate authority over his/her life. Personhood is honored, with no one acting as surrogate parent. We believe that this approach, with appropriate safeguards, oversight and subject to regular review, will disrupt the pipeline from guardianship to institution industrial complex. It will help reset clocks and calendars for heretofore infantilized adults and restore dignity, autonomy and adult status to the decision-making process.

Full Article & Source:
Guardianship of the Infantilized Elder: A Pipeline to the Institution Industrial Complex?

Bond reduced for Venice attorney accused of stealing from estates

SARASOTA — A Sarasota County circuit judge ordered a reduced $407,500 bond for Adam R. Miller, a Venice attorney accused of embezzling over $700,000 from elderly clients’ trust accounts after their deaths, during a hearing on Monday.

The bond had been set at $1.7 million.

Miller was charged with one count of exploitation of the elderly over $50,000, two counts of scheme to defraud over $50,000 and one count of scheme to defraud between $20,000 and $40,000.

Circuit Judge Charles E. Roberts presided over Monday’s hearing.

Full Article & Source:
Bond reduced for Venice attorney accused of stealing from estates

See Also:
Venice lawyer charged with stealing over $400K from elderly clients

What kind of lawyer do I hire for an emergency guardianship?

Topic: Elder Law

Q: My sister who has been POA since 2015 has set in place a Personal Care Contract as she is the primary care giver to deplete my father’s assets to seek Medicaid in the future. He has a house being sold in 45 days. He won’t be eligible 5 years and he is at stage 6 of Alzheimer’s. She has breached her fiduciary duties in many areas, depositing his money in her personal account, has been deceptive in not posting promissory notes payable to me. I am not on the PCC. We all just learned that this lifetime contract is payable in a lump sum at the closing of the house. She said she is taking half which equated to $180,000. She has abused her role as POA. She has breached her fiduciary duties and is using this PCC to her own benefit as she is currently on the market for a house. A top-rated Medicaid attorney has drafted this PCC but my sister is not being fair as her greed for money has overstepped her bounds of looking for the best interest of my father. What are my rights? (Pittsburgh, PA)

A: There are several red flags here, at least the way you describe them. Depositing a principal’s money in her own account while acting as an agent in a fiduciary capacity, is a big problem, if true. If your suspicions are accurate, one of your remedies would be to hire an attorney to file a Petition for Accounting which would result in her having to file an account of all his funds spent by her. If warranted, you could simultaneously file to be her Guardian. Without more details, I the only advice I can give is consult with an elder care attorney versed in Medicaid regulations. It may be well worth the consultation fee.

Full Article & Source:
What kind of lawyer do I hire for an emergency guardianship?

Monday, July 10, 2017

Hendersonville woman who lost home, car in conservatorship case dies at 58

A Hendersonville woman who lost her home, car and all her belongings in a highly contested conservatorship case has died.

Ginger Franklin, 58, died Monday. Her controversial conservatorship case was one of a handful that sparked a reform effort leading to a 2012 change in Tennessee law.

Franklin also successfully sued the owner of a group home where she was placed against her will and put to work cleaning and cooking for other residents even as her bank account was being tapped for a monthly fee.

Franklin's case came to the attention of a national organization established to halt abuse by guardians and conservators.

"The system didn't just let Ginger down; it used Ginger and exploited her for its own benefit — at her expense and to her detriment, all under the deception of protection and on Judge David 'Randy' Kennedy's watch," said Elaine Renoire, head of the National Association to Stop Guardian Abuse, referring to the Davidson County probate judge who presided over Franklin's case.

Franklin ended up in a conservatorship without her knowledge in 2008 after she fell in her condo and suffered a brain injury. She was shipped to a rehab facility in another state, and when she returned to Tennessee she was told by her court-appointed conservator that her condo was empty and being sold.

She was placed in a group home and put to work.

A judge would later rule that Franklin was the victim of "egregious and intentional abuse."

Salim Homes was ordered to pay Franklin $23,050.

Franklin's conservator was Jeanan Stuart, then the public guardian for Davidson County. Stuart was eventually forced to resign from her job after a series of articles in The Tennessean raised questions about her billing practices.

In Franklin's case, records showed that Stuart seized and then abandoned a car Franklin owned. It was subsequently seized by the garage owners and auctioned off.

Franklin made several attempts to have the conservatorship lifted but was rebuffed by Stuart and Kennedy.

She wasn't finally released from the conservatorship until 2010.

Franklin also filed suit against Stuart, charging that the attorney had violated her fiduciary duty by failing to act on her request to have the conservatorship dissolved and for mishandling her assets, including her car.

A circuit court judge denied motions by Stuart to have the case dismissed. The suit was eventually dismissed voluntarily.

Full Article & Source:
Hendersonville woman who lost home, car in conservatorship case dies at 58

See Also:

Ginger Franklin's Car Towed and Sold While in Conservator, Jeanan Mills Stuart's 'Care'

Ginger Franklin, Tennessee Victim

Tennessee Public Guardian, Jeanan Mills Stuart's Fees Exceed $1.8 Million

TN:  Conservator Jeanan Mills Stuart and Judge Randy Kennedy

Jeanan Stuart Response to Questions

We all need to be aware of physical abuse

Dr. Richard P. Holm
Caring for the elderly my whole clinical life has been an honor and a pleasure, but some experiences have been terribly heartbreaking. Elder abuse is one of the saddest, and it can come in the form of physical harm and neglect, emotional cruelty, or financial exploitation.

A couple of years ago a frail, confused, elderly person arrived in the emergency room with a fractured bone, bruises, sores, and was quite unclean. His family described that the patient had fallen multiple times recently, and I could see his needs were overwhelming his care providers. If there hadn't been physical abuse, there was at least neglect. After surgery and hospital care, we were able to send the patient to a nursing home. We all need to be aware when there might be possible physical abuse, and call for help when we see it.

Another case was one of emotional abuse with much blaming, shouting, and anger put upon an incapacitated elder. It was by a visiting, emotionally-ill family member who had arrived from afar and was unloading his own emotional baggage upon their frail and defenseless parent. The patient had been admitted for a medical issue, and the nurses were the first to recognize the emotional abuse. Police were notified and the visitor was banished from visiting the patient in the hospital during their stay or at their home after they were discharged.

On instance of financial abuse was evident in another case, when a son informed me that his 80-plus-year-old mother and her new boyfriend had recently been going to the bank and removing large sums from the mother’s savings account. The son believed his mother was “losing it”, and informed me that she had been spending thousands of dollars for herbal and supplemental cures for her memory problems She had several unpaid bills and was now was being manipulated by an opportunist. He asked me how to protect his mother’s money.

I saw the patient in my office; obviously the mother was demented and incapacitated. A judge confirmed her incompetence and determined the son was to have power of attorney. Problems could have been avoided had the son been more watchful, had the mother made financial plans before her mental health problems, and had a bank’s trust department or a bookkeeping business been asked to pay bills.

None of us are safe from abuse. When people become frail or lose their mental capacity, then bad people can take advantage of them. Elder abuse can come in the form of physical harm and neglect, emotional cruelty, or financial exploitation, and is more common than you would expect.
Be aware, and take precautions.

Full Article & Source:
We all need to be aware of physical abuse

MPD: Woman stole $310k from 90-year-old man

Loyala Surangani McCants
MOBILE, Ala. (WPMI) — On Friday, June 23, 2017, Mobile County Sheriff’s Office arrested Loyala Surangani McCants for three counts of Financial Exploitation of an Elderly Person 1st degree.

The charges stem from an ongoing investigation in which she befriended a 90-year-old victim on the popular senior citizen dating site, OurTime. McCants, who is 58 years old, convinced the victim to move to Mobile from Maine on May 14, 2017. According to MPD, from May 22 to June 22, over $310,000.00 had been transferred into McCants' credit union from the victim.

MCSO was notified by Alabama Securities Commission. “I received a letter from the Alabama Securities Commission on June 20th,” says Sheriff Sam Cochran. “I immediately sent it to our white collar crimes detectives. Because of their swift and thorough investigation, we were able to make an arrest and prevent her from going after her next victim.”

At the time of McCants' arrest, she was in the process of relocating the victim to a local nursing home, while she and her family flew to Sri Lanka for a month’s stay.

While investigating this case, Detectives discovered she had also done this same crime to an elderly man in 2016. Unfortunately, that victim has passed, and no one had knowledge of the crime until our investigation.

If you feel you or someone in your family has been a victim of this type of crime, call 251-574-8633 or you may report anonymously

Full Article & Source:
MPD: Woman stole $310k from 90-year-old man

Sunday, July 9, 2017

ACLU sues Utah over disabled people's right to a lawyer in guardianship cases

SALT LAKE CITY — Civil rights advocates are challenging a Utah law that eliminated a requirement that disabled adults whose biological or adoptive parents petition courts to become their legal guardians have their own attorney.

The ACLU of Utah and the law firm Latham & Watkins sued the state in federal court Thursday on behalf of the Disability Law Center and two people identified as Katherine C. and Anthony M.

The law gives judges the final say on whether a potential ward needs legal representation in a guardianship proceeding. It applies only to guardianship petitions filed by biological or adoptive parents and if the potential ward’s assets are less than $20,000.

Members of the state's disability community and the Utah State Bar opposed the bill when the Legislature passed it in 2016. The law is set to expire in July 2018 unless lawmakers renew it when they convene next January.

People with disabilities face unique and serious threats to their freedom and independence when someone seeks legal guardianship over them, said Aaron Kinikini, Disability Law Center legal director.

"We want to ensure that our members have absolutely every legal protection they deserve when going through the guardianship process," he said.

Bill co-sponsor Sen. Lyle Hillyard, R-Logan, said the legislation affects him personally, both as the father of an adult child with disabilities and an attorney.

Many parents in the same circumstance have raised a child with disabilities from birth and have their best interests at heart but need guardianships to continue to help guide their child's medical, legal and financial affairs once they reach adulthood, Hillyard said.

Most of them, he said, can't afford to hire an attorney for themselves and their child.

"That just doesn't make sense to me. I think we get so anxious making sure everybody’s legal rights are protected that we actually price them out of the market," Hillyard said.

He called the law "very, very limited" because it only applies to those whose assets are less than $20,000. In addition, Hillyard said judges can stop the legal proceedings and appoint an attorney for the child if they believe one is needed.

The lawsuit, which names the state, Utah Administrative Office of the Courts and Utah Judicial Council as defendants, demands a right to a lawyer for anyone who is to be put under guardianship.

Plaintiff Katherine C. has schizophrenia and works as a junior law clerk at a Salt Lake nonprofit. She lives with her parents because of her disability, according to the lawsuit.

Anthony M. has developmental and intellectual disabilities. He works as a school custodian, and though he lives with his wife and son, he receives care and financial support from his parents, the lawsuit says.

Both have less than $20,000 in assets and have expressed concerns about losing the right to make important medical and housing decisions for themselves, should their parents gain legal guardianship over them at some time in the future, according to the ACLU.

Once granted, guardianship is rarely if ever revoked, said John Mejia, ACLU of Utah legal director.

"When facing the loss of the right to make deeply personal decisions for themselves for the rest of their lives, people with disabilities need to have unfettered access to legal assistance," he said.

Full Article & Source:
ACLU sues Utah over disabled people's right to a lawyer in guardianship cases

Elder abuse task force makes mark in one year

ALBEMARLE COUNTY, Va. (NEWSPLEX) -- Exactly one year since its formation in June 2016, members of the Jefferson Area Coalition to End Elder Abuse say they're pleased with what they've been able to accomplish.

The task force is made up of lawyers, law enforcement, bankers and social workers.

The goal is to end elder abuse in local communities with a primary focus on financial exploitation.

Elder law attorney, Doris Gelbman, is at the helm of the task force and said financial abuse often opens the door to other forms of abuse and neglect.

According to Gelbman, the task force has been able to investigate and prosecute an assortment of cases since it began.

"It leaves elderly people, very vulnerable, elderly frail people without their life savings at a time when they can not earn any more and are destitute, what a desperate situation this is for them," said Gelbman. "I'm proud to say that people have understood that now and have come to the table, energized about this. They are very enthusiastic about going after these criminals."

Gelbman encourages people in the community who witness any form of elder abuse to report it to Adult Protective Services.

Reports can be made anonymously.

Full Article & Source:
Elder abuse task force makes mark in one year

Area realtor charged in alleged scheme to bilk elderly man out of home

Jody Scoggins
WOODWAY, Texas (KWTX) A Waco-area realtor was arrested Thursday and charged in connection with an alleged scheme to bilk an elderly and handicapped man out of his home and to empty his bank accounts.

At around noon Thursday, Waco police arrested Jody Scoggins, realtor and owner of the Scoggins Team, at his office, at 8805 Woodway Dr. in Woodway, on two warrants charging securing execution of a document by deception and with exploitation of an elderly individual, Waco police Sgt. W. Patrick Swanton said.

Scoggins was in the McLennan County Jail Thursday evening.

In a separate but related issue Thursday lawyers for David and Brenda Menefee, of Moody, filed a civil action in 414th State District Court seeking relief after they say Scoggins and a group of others conspired to take ownership of the Menefee’s Moody home and to gain access to their bank accounts.

The petition names the Menefees as plaintiffs and Scoggins, his wife Kim Scoggins, his mother Debbie Scoggins, the Scoggins Real Estate Team, LLC, Pennybags, LLC, Scoggins Enterprises, Inc, Hessco Roofing & Remodeling, LLC, and 1st Choice Fencing, Inc., as defendants.

Brenda Menefee is rightful owner of a home on Highview Lane, in Moody, where she cares for her husband who is blind and has dementia, Waco attorney Ross Russell says in the lawsuit.

The suit alleges that Scoggins forced David Menefee to sign over his power of attorney, blocked his wife’s phone number on his cellphone and told Menefee his wife had stopped calling him, and had his mail re-routed to Scoggins’ office address.

Eventually, the lawsuit says, the defendants were able to gain control of the real property and all of the Menefee’s accounts.

Full Article & Source:
Area realtor charged in alleged scheme to bilk elderly man out of home