Saturday, September 16, 2017

Lawsuit alleges fraud, elder financial abuse at Oakmont Senior Living

Oakmont of Villa Capri
Four senior citizens, including an 82-year-old Santa Rosa man, are suing a chain of residential care facilities founded by Sonoma County developer Bill Gallaher, accusing his company of fraudulent practices that allegedly deprived them of needed care and exposed them to risk of injury.

The lawsuit, filed this week against Oakmont Senior Living in Alameda County Superior Court, alleged residents were found on the ground, left to sit in their own waste and at least one suffered an unexplained injury at the company’s assisted living facilities.

Fees at the facilities — which ran as high as $10,000 a month per resident — were based on “budgets driven primarily by desired profit margins” rather than assessments of its residents’ individual needs, the suit claimed.

As a result, the suit said, Oakmont Senior Living facilities were understaffed and residents age 65 and older “run the continuing risk of not having their care needs met and of suffering frustration, pain, discomfort, humiliation and/or injury from inadequate care and supervision.”

Gallaher did not return telephone calls and emails over two days requesting comment through his company and his attorneys.

A spokeswoman said in an email sent Thursday night that Oakmont learned Wednesday the suit had been filed and the company had not been served with a copy.

“We understand similar lawsuits have been filed by the same law firm against other large California assisted living providers, including Brookdale Senior Living, Atria Senior Living and Aegis Living,” said Honey Lopez, spokeswoman for Oakmont Senior Living. “Once we have the opportunity to review the allegations, we will respond accordingly.”

The 43-page complaint did not specify the amount of financial damages it was seeking. If a judge certifies it as a class action case, the number of plaintiffs could expand to thousands and the potential penalties against Oakmont could be in millions of dollars, said Kathryn Stebner, a San Francisco attorney who filed the lawsuit with nine other attorneys.

Oakmont Senior Living, a privately held company based in Windsor and founded by Gallaher in 1997, operates 23 senior living facilities in California from Redding to San Diego, including four in Santa Rosa: Fountaingrove Lodge and Oakmont of The Terraces on Thomas Lake Harris Drive and Oakmont of Villa Capri and Oakmont of Varenna on Fountaingrove Parkway.

The lawsuit alleged that Oakmont violated the Consumer Legal Remedies Act, committed elder financial abuse and engaged in “unlawful, unfair and fraudulent” business practices.

Oakmont had a duty to disclose that resident care assessments were not used to set staffing budgets, creating safety risks for current and future residents who were described as “a vulnerable population,” the suit said.

The company “actively conceals from residents, prospective residents, and their family members the true facts about its corporate policy and practice of prioritizing profit over resident care,” it said.

Stebner said the lawsuit seeks to represent current and former residents of Oakmont facilities in California during the last four years, a class that may number as many as 4,000 people.

Gallaher, who started out as a custom home builder in the 1970s and built more than 480 homes in the Oakmont retirement community, has also constructed apartment complexes, office buildings and shopping centers, according to Oakmont Senior Living’s website.

Gallaher, 66, is also founder and board chairman of First Community Bank, a key early lender to Sonoma Clean Power, the county’s public power supplier.

In July, county supervisors approved the sale of 82 acres on Chanate Road to Gallaher, who plans to build housing on the site and pay up to $11.5 million for the land. A citizens’ group filed a lawsuit in August challenging the deal.

Gallaher and his son-in-law, Scott Flater, filed a libel lawsuit against The Press Democrat in January, alleging they were defamed in a series of stories about unprecedented campaign spending in last year’s Santa Rosa City Council election

Oakmont Senior Living was founded by Gallaher in 1997 and is owned and operated by his family, according to the company’s website. It has planned and developed more than 40 retirement communities in the western United States, including assisted living facilities that provide daily assistance to people who are unable to care for themselves. Unlike nursing homes, assisted living facilities do not provide medical care.

Donald Lollock of Santa Rosa, who has Parkinson’s disease and dementia, is one of four living plaintiffs who filed the suit against Oakmont. He resided at Oakmont of Villa Capri for three years and paid fees that reached an average of about $10,800 a month, the suit said.

In January 2016, only one caregiver was available in his unit for more than a dozen residents with dementia who needed assistance with feeding, walking, showering, using the toilet and other daily activities, the suit said.

Lollock’s wife, Kathy, frequently found her husband in “urine soaked pants” because he had not been taken to the toilet every two hours, as he needed, and sometimes found him with “feces crusted around his groin,” the suit said.

Lollock, who had trouble using a device to alert staff, was left alone and unsupervised for long periods of time, and his wife once found him on the floor, it said. In May 2016, he “had a broken rib that Oakmont could not explain,” the suit said.

In September 2016, his wife moved him to another facility.

Two of the other plaintiffs — Frank Pearson, 89, and Jo Ella Nashadka, 88 — are residents at Oakmont of Mariner Point in Alameda, and Jane Burton-Whitaker, 74, is a former resident of that facility. A fifth person, Abdulwafi Kahn, also a former resident of the Alameda facility, died at age 75 and is represented in the lawsuit by his daughter.

The lawsuit was filed Wednesday. Stebner said she and other lawyers handling the complaint will gather information and seek class action certification in a matter of months or possibly a year. 

Full Article & Source:
Lawsuit alleges fraud, elder financial abuse at Oakmont Senior Living


A new University of Michigan study suggests that tired family caregivers are associated with more frequent ER visits and higher overall health care costs for the person they care for. 

Emergency room staff call this 'Pop drop' - when medical staff sense that the real reason for the hospital visit is hope for an in-patient stay and respite for the family. 

That's a harsh and unfair judgement on caregivers. And to me, it's one that reveals the disconnect between health care systems and families. Caregivers are working way too many hours without oversight or relief and often, we are dangerously exhausted. 

There are laws against excessive overtime hours for truck drivers and health care workers. And those laws exist to protect employees as well as their potential victims should functional capacities on the job be compromised by severe exhaustion. But there are no laws against exceeding maximum overtime hours worked by family caregivers. So when we need a break because we know that errors will occur in our caring or we will suffer illness from fatigue, we take the only responsible action available: we bring our loved one to the ER.

It amazes me how little health care providers know about the daily life of caring, the tasks we perform and the daily waking hours that are required to do our job well. But the costs of sleep deprivation are high. In my family, our son requires frequent repositioning for pain, nighttime tube feeds and medications as well as seizure and apnea monitoring and management. In the 23 years we cared for him at home, we had a monitor which beeped if our son momentarily stopped breathing - that sound cue sent us running to his room to rub his cheek or tilt his chin down to reset respiration. 

The cost of so many sleepless nights in our family: many minor car accidents with dented fenders, medication errors, frequent bouts of crying, a short temper with my husband and daughter, diminished awareness of the world around me and other peoples' feelings, and almost worst of all - no laughter. Nothing is funny without sleep. 

This University of Michigan study found that the measurement of fatigue, which can result from both the strain of caregiving and poor sleep, was clearly associated with both higher rates of emergency department visits and higher overall health care costs. That's a very good reason to use this evidence to better support exhausted caregivers in the community.

Full Article & Source:

Discover How to Reduce Your Risk, Restore Your Health, and Reverse the Effects of Alzheimer’s and Dementia

Imagine a world where Alzheimer’s is no longer a death sentence. That world is here now.

You’re invited …

Mark your calendar for September 21st, World Alzheimer’s Day, as your host Peggy Sarlin interviews 14 of the world’s leading experts in Alzheimer’s and dementia. Over the course of 12 days, you’ll meet all of them, AND they’ll tell you their most effective breakthroughs and discoveries during the groundbreaking FREE video event, Awakening from Alzheimer’s.

The same courageous dedication to science that wiped so many diseases from the face of the earth is finally putting an end to Alzheimer’s and dementia. Today, you have the opportunity to learn from the brilliant doctors listed on this page below, who will teach you and your family how to avoid the nightmare of facing down this disease.

This is something everyone needs to see. Our loved ones are dying because the majority of the medical establishment are misinformed. Tragically, they simply haven’t heard about all of the new and effective Alzheimer’s therapies – therapies shared in one place for the first time in the landmark video series, Awakening from Alzheimer’s.

Full Article, Video & Source:
Discover How to Reduce Your Risk, Restore Your Health, and Reverse the Effects of Alzheimer’s and Dementia

Friday, September 15, 2017

Documentary: Let Them Out! Episode 2

Let Them Out, Episode 2

See Also:
NASGA:  Documentaries

Victims want tough sentence for Las Vegas lawyer who stole millions

By Jeff German
Las Vegas Review-Journal

Former clients of longtime estate lawyer Robert Graham say they hope he gets stiff punishment for stealing millions of dollars from trust funds he oversaw.

“I feel that he should spend the maximum time possible in prison,” said Sharona Dagani , a wheelchair-bound former Las Vegas woman who prosecutors say lost more than $513,000 in special needs funds Graham had managed.

Graham pleaded guilty Thursday to five felony counts, including theft and exploitation of vulnerable people, while admitting he stole more than $16 million from his clients over the years. He faces a prison term of 16 to 40 years and will be sentenced Jan. 11.

District Attorney Steve Wolfson described Graham, who once regularly promoted his law practice on television, as a “despicable, predatory thief, plain and simple.”

Dagani, 29, who was born with cerebral palsy, said she is having trouble paying for her caregivers and other necessities, including utilities, car insurance and repairs.

“There’s just not enough money to meet her special needs,” her mother, Joan Albstein, said. “We’re doing the best that we can, but it’s just scary that her future is unknown.”

Dagani, who lives in San Antonio, said she is desperately looking for donations to her online GoFundMe account. Since March, the fund has raised only about $3,000, and she has been forced to spend most of the money to cover her daily needs.

Victoria Pappalardo said Graham deserves to be behind bars for a long time.

Graham stole nearly $942,000 from a trust fund set up for Pappalardo’s grandchildren after their parents, Kenneth and Sheila Miller, died in a car crash outside Las Vegas. The fund was established with insurance money from the accident seven years ago.

Pappalardo and her husband, Tony, now have custody of the children — Micaela, 16, Noah , 12, and Madison, 8 — who live with them in Ontario, California. Their GoFundMe account has raised $6,600.

“We’re devastated,” Pappalardo said. “This money would have made all the difference in the world. They would have had the kind of life their parents would have given them.”

She said a 40-year prison sentence for Graham would send a strong message to other attorneys who might prey on their clients.

Left with nothing

Victims said they were disappointed to hear that they are are not likely to get much restitution.

Prosecutors hope to recover $16 million from Graham, but they said most of his assets are gone. Several victims also are pursuing money from Graham in U.S. Bankruptcy Court, where he has acknowledged having $8.7 million in liabilities but only $438,000 in assets.

Las Vegas lawyer Bruce Gale, who lost more than $522,000 from the special needs trust of his late brother Matthew, said Graham’s crimes warrant the maximum sentence.

“That’s what he deserves at best,” Gale said. “He’s wreaked havoc with so many people’s lives.”

Valerie Weinberg agreed.

“It’s appalling what he did to people,” said Weinberg, who no longer can count on her share of the $575,000 estate of her stepmother, Lois Lee, as she heads into retirement. That money is gone.

Weinberg, a jazz singer who lives in Sacramento, said she’s glad that Graham admitted stealing the estate funds and will be punished for it. But she also thinks it might have been more satisfying to watch him “squirm in his seat” at trial.

“I don’t believe he has a conscience or soul,” she said. “I just wish him to suffer the way he made us suffer.”

Her sister, Caralinda Lee, a college professor who lives in San Francisco, added: “It’s just egregious what’s he’s done. It makes you lose faith in humanity. He’s a despicable human being.”

Graham’s guilty plea last week capped a dramatic legal saga that began when he abandoned his clients and shut down his Lawyers West office in Summerlin on Dec. 2.

In interviews with the Las Vegas Review-Journal after his indictment earlier this year, Dagani, Pappalardo, Weinberg and Lee described their frustration with Graham as they fought, sometimes desperately, to get him to turn over their funds in the years and final months before he closed his law practice.

Graham, who is at the Clark County Detention Center on $5 million bail, secretly funneled an average of $187,000 a month in client funds over the years to a special bank account to run his law practice and pay personal bills, grand jury transcripts show.

He used client funds to pay $244,000 in taxes and $700,000 a year in advertising. He also used the money to make thousands of dollars more in charitable donations to numerous organizations, including the Church of Jesus Christ of Latter-day Saints and Boys Town of Nevada, the testimony shows.

Full Article & Source:
Victims want tough sentence for Las Vegas lawyer who stole millions

See Also:
Victims of indicted attorney Robert Graham suffer hardship

Las Vegas lawyer accused of stealing millions from clients arrested

Several Tampa Bay nursing homes without power after Hurricane Irma

PALM HARBOR, Fla. - A breaking situation in South Florida tonight is raising new concerns for people living in nursing homes.

Eight people are dead and dozens of others are still evacuating a Hollywood, Florida nursing home that lost power in the storm and struggled to have air conditioning for the last few days.

A tragic scene is what everyone wants to avoid. Patients had to be pulled out of a hot nursing home after others there died.

Unfortunately, there are still some nursing homes that don't have power in Tampa Bay and while all are required to have generators, they don't have to be able to provide air conditioning when the power is out.

It was a chaotic scene at a Hollywood nursing home this morning, as rescue workers weary from the hurricane scrambled to save 115 seniors from the heat.

Eight patients died of heat-related illnesses because their air conditioning never came back on after Hurricane Irma. They perished in the heat, even though there's a hospital just yards away.

“We're conducting a criminal investigation into the deaths that occurred,” said Hollywood Police Chief Tomas Sanchez.

In Tampa Bay, other nursing home residents baked in the heat.

Baytree Center in Palm Harbor lost power Sunday. The facility’s generator failed multiple times Monday, after the home plugged in small air conditioning units to try to cool it down.

The Palm Harbor Fire Department brought in portable air conditioners to cool patients until Duke Energy crews can restore power. The department said paramedics made four runs to the nursing home and transported multiple patients to local hospitals.

“Phone call after phone call of people wanting to come and help,” said volunteer Chris Thompson, who lives near the Bayshore Pointe Nursing Home and Rehabilitation Center in Tampa.

Full Article & Source:
Several Tampa Bay nursing homes without power after Hurricane Irma

Editorial: Better care for the vulnerable

When it comes to caring for the most vulnerable elderly and mentally ill, Franklin County can take pride in the Guardianship Service Board. It has helped remake a system that once permitted shameful exploitation of wards into one of the state’s best.

A new agreement between the board and Ohio State University’s Wexner Medical Center demonstrates how its impact can grow even more.

The hospital plans to pay the board $65,000 to help secure guardians for patients who, because of dementia or mental illness, aren’t competent to make decisions about their care and have no one else to do so. Such patients — between 15 and 20 per year at OSU — have been stuck in the hospital for months.

The guardianship board was formed a few years ago through state law to serve as a “guardian of last resort.” The move came after a Dispatch series, “Unguarded,” revealed that several lawyers appointed as guardians had failed to provide proper care while charging exorbitant fees. Wards were robbed of their property, dignity and even their freedom.

Among the board’s first tasks was taking over guardianship of some of 400 wards assigned to lawyer Paul Kormanik. He’d pleaded guilty in August 2015 to four counts of stealing from wards, plus charges relating to taking taxpayers’ money and falsifying records; he committed suicide less than a month before he was to be sentenced.

Since the reforms began, the board has accepted a $25,000 gift from the Columbus Foundation to further its work. It also sought help from the Lawyer’s Fund for Client Protection, and it won more than $200,000 in restitution for 35 of Kormanik’s swindled wards.

The newest partnership with the Wexner Medical Center could lead to similar arrangements with other hospitals. Most important, it means fewer central Ohioans will be left alone and confused in a strange place with no one assigned and specially trained to look out for them.

Full Article & Source:
Editorial: Better care for the vulnerable

Thursday, September 14, 2017

Nassau judge denies request to seal sensitive guardianship case

Judge Gary F. Knobel
Faced with more frequent requests to seal guardianship files, a Nassau County judge has ruled to keep open a case that involved the potential “financial exploitation” and “Svengali-like manipulation” of a wealthy elderly woman.

In denying a request to seal, Judge Gary F. Knobel on Thursday ruled that doing so “would have the effect of burying secrets, hiding the truth and thwarting the best interests of the incapacitated person to be protected from unscrupulous behavior.”

The decision follows a series of stories Newsday published last year that examined the improper sealing of civil cases by Long Island state court judges. The stories also looked at the widespread sealing of guardianship cases, which involve the appointment of legal caretakers for those unable to manage their own affairs.

In his ruling, Knobel detailed the complexities of guardianships. Sensitive medical and financial records are involved and judges need to weigh the privacy right of often cognitively impaired people against the societal need for open courts and the protection that transparency can offer these highly vulnerable individuals.

Michael Chetkof, an attorney for the woman at the center of the proceeding Knobel ruled on, praised the decision, but declined to discuss details of the case. He said there had been a settlement and that his client, a woman named Amelia Gould, passed away last week, a day after Knobel made his ruling.

Knobel’s 12-page decision noted that “many” of those in the legal community whose business is guardianships are unfamiliar with the state law that governs the sealing of files in such cases.

The law allows sealing only when “good cause” has been shown and directs judges to consider the array of interest at play when making a determination.

Citing a recent American Bar Association survey, Knobel wrote that in nine states portions of guardianship cases are automatically sealed and in 13 states the entire record is presumptively confidential. In contrast, Knobel wrote that in the majority of states, including New York, guardianship files are presumptively open.

Knobel attributed the increased number of requests to seal to Newsday’s stories, which he said brought the issue of sealing guardianships “to the forefront.”

The newspaper identified more than 200 guardianship cases that Long Island judges sealed over a roughly 10-year period. Most were in Suffolk County. Newsday found that overwhelmingly, judges were using stock, generic phrases in their sealing orders, rather than tailoring them to the facts of each case.

One of the improperly sealed guardianships Newsday identified involved State Sen. Tom Croci (R-Sayville), who a court evaluator found had “taken advantage” of an elderly aunt for his own financial benefit. Croci has denied any impropriety.

Full Article & Source:
Nassau judge denies request to seal sensitive guardianship case

Lawyer accused of stealing from special-needs trusts

Kenneth S. Service
An Indianapolis lawyer suspended after police say he stole more than $85,000 from two Lawrence County residents’ special-needs trusts faces a second attorney discipline complaint, and that may be just the tip of the iceberg.

Indiana State Police Detective Stacy Brown said in an interview that authorities are investigating the possibility of “numerous victims in multiple states” involving Kenneth S. Service. Brown said he’s been made aware of as many as 17 potential cases where money may be missing from special-needs trusts Service opened in Indiana, Florida and West Virginia, but there may be even more.

Brown said the Service case grew too large in scope for a single detective and was referred to ISP’s Special Investigation Section and the Federal Bureau of Investigation. Mary F. Higdon, a Bloomington defense attorney representing Service in his Lawrence County criminal case, said the FBI informed her it declined to take the case, and that her client intends to defend himself.

“Mr. Service believes he never violated the Trust Code,” Higdon said. “He believes he was fully compliant with the Trust Code. That’s our defense.”

Higdon declined to answer questions about whether money was missing from the Lawrence County trusts but said Service had not made any reimbursement to the trusts of the funds police say he stole.

“Just because there are so many allegations out there doesn’t mean he’s guilty of anything,” Higdon said. “I don’t think there should be a rush to judgment as far as his guilt whatsoever.”

Service could not be reached for comment. The telephone number listed for him on the Indiana Roll of Attorneys played a recording saying the number was no longer accepting calls.

Investigators and attorneys who’ve intervened in multiple cases to remove Service from trusts he established and administered say the total amount missing is likely to run to at least several hundred thousand dollars.

The Indiana Supreme Court suspended Service from the practice of law in June for failure to cooperate with a Disciplinary Commission investigation launched in March, three months after he was charged in Lawrence County with Level 5 felony theft.

Brown wrote in a probable cause affidavit that Service stole from the accounts of two people in the Bedford area whose special-needs trusts the lawyer established and administered. “The two Lawrence County victims have suffered a combined loss of over $85,522.29,” the affidavit says. The charging information claims Service used money from clients’ special-needs trusts to pay for personal expenses from casino trips to his dry cleaning.


After Service’s first discipline matter was filed after he was charged in the two Lawrence County cases, court records show attorneys intervened to remove him from cases around Indiana where he had established special-needs trusts and designated himself trustee. In many of those cases, his removal appears to have come after the financial damage was done.

“It was devastating,” Brown said of the impact Service’s action had on his clients. The detective noted one victim was a mother with terminal cancer. She was counting on money in a special-needs trust Service opened to be a nest egg to provide care after she dies for a child with significant disabilities.

“Unfortunately, she thought she had six figures in an account, and it had nothing,” Brown said.

In some cases, Brown was breaking the news to Service’s victims that their money was missing — including this mother. “To hear her scream and cry, it’s terrible,” he said. “When I talked to the victims, that was the worst part of the case.”

Fort Wayne attorney Kristin Bilinski was called upon to intervene in five cases where Service was supposed to establish special-needs trusts for clients who received settlements in personal injury cases. She said the clients were either disabled from birth or as a result of an accident or injury.

“I would say well over $200,000 is missing so far,” Bilinski said of the five cases where she appeared and removed Service as trustee. She said clients in those cases are spread across northern Indiana — in Allen, LaPorte, St. Joseph and Wabash counties.

The clients had been referred to Service by law firms that won settlements for them. Court records show that when Service established special-needs trusts for clients, he typically also appointed himself trustee. Special-needs trusts serve two purposes: the money can be used to pay for the injured person’s short-term or long-term care and other needs, and they preserve the disabled person’s ability to continue to qualify for Medicaid and Supplemental Security Income benefits from Social Security.

Bilinski said there’s nothing inherently wrong with attorneys serving as trustees, but it’s becoming less common because of potential liability. She said some legal malpractice insurance carriers no longer even cover lawyers who serve as a trustee for clients.

When Bilinski began seeing money missing from these trusts, she said her reaction was, “honestly, just dismay. Because these people, first of all, had obviously had a terrible accident to have received a settlement, and they’re living with some kind of disability. … For this to come along and delay or completely hinder access to money that’s rightfully theirs, it’s just horrible. I don’t know what else to say.”

Bilinski is hopeful some of the money might be recoverable. She said she’s preparing applications to the Indiana State Bar Association for possible relief from the Clients’ Financial Assistance Fund that serves victims of attorney theft. However, she said that fund’s limited resources can’t possibly make her clients whole without other recovery of the missing money.

“The fact that we can’t find the funds and can’t get any information about them is very concerning,” she said. “In some cases, the trust account wasn’t even set up.”

‘Knew something was wrong’

Marion attorney Josef D. Musser intervened in a case where Service had established a special-needs trust for a man disabled since childhood. He’d been cared for by his mother until she died, and a prior guardianship had been established to provide for his care.

Service established the trust for the man with the settlement proceeds the client received after he was injured in a crash while a passenger in a van. Musser said when the guardian submitted requests for reimbursement from the trust Service set up to repay the guardian’s legitimate out-of-pocket expenses, red flags started going up.

Service “continued to delay, delay, delay on paying those,” Musser said. “I knew something was wrong there with his operation, and he would continue to tell me the delay was caused by the fact he didn’t have staff hired and was overwhelmed with his workload. … He didn’t pay and kind of changed his reasons why he didn’t pay, and he wouldn’t respond to phone calls and communications. We got very concerned.”

Musser said the guardian ultimately was reimbursed, and the client in this case suffered no financial harm. Another attorney intervened in this case and removed Service as trustee in March, after the first attorney discipline case began.

“I’m just glad we weren’t one of the clients that actually lost money,” Musser said.

‘Stop talking to the bank’

Brown, who investigated the Lawrence County thefts, alleged Service wrote checks for cash to himself from his clients’ special-needs trust accounts. In at least one of those cases, he also had a debit card for the special-needs trust account that the client in Bedford told police he didn’t know about.

That client also told police that Service had refused the client’s multiple requests to access money from his trust to make needed repairs to his home and to buy a car. Brown wrote that after the client was contacted by his bank about money missing from his trust account, the client “called (Service) who informed him that he would be down to Bloomington to buy him a new car if he would stop talking to the bank employees.”

The Bedford client said Service made good on the promise and wrote a check for a new Toyota, but the check didn’t come from the client’s trust account. Similarly, the charge against Service alleges he used the Bedford client’s trust account to pay for a root canal and crown procedure for client in another county who had a special-needs trust Service managed.

“I feel that Mr. Service is using other trust funds in his control to pay for expenses on other trust funds and then claiming he is using his own money,” the detective wrote in the probable cause affidavit. “Mr. Service will then withdraw funds from the trust fund that he claims is owed repayment … and keep the money for his personal use.”

Service used money he took from the Lawrence County trusts to pay for a stay and room service at the Blue Chip Casino in Michigan City, and to pay for at least 35 nights’ stays at an Indianapolis Marriott hotel from March 1-April 10, 2016, the charging document alleges.

One of the Lawrence County cases involved a woman for whom Service opened a special-needs trust in June 2015. The woman died that November, and her sister was tasked with closing the woman’s estate. Brown wrote that he asked the sister if she knew “any reason (Service) would make repeated trip(s) to the teller window at PNC Bank and withdraw thousands of dollars in cash from the trust fund” in late 2015 and early 2016. Brown said the sister replied, “there would be no reason at all for that to have been done.”

Authorities allege Service stole more than $43,000 from that victim’s account.

“It’s scary to think how many more might be out there that you don’t know about,” Brown said.

Full Article & Source:
Lawyer accused of stealing from special-needs trusts

Without Gary Ott to speak for himself, judge delays decision on future of former county recorder

County Recorder Gary Ott
West Jordan • A decision about who will be the permanent legal guardian of enfeebled former Salt Lake County Recorder Gary Ott has been delayed a month, along with a ruling over whether the news media will be allowed in court to observe the proceedings.

Because Ott is in an undisclosed hospital and did not attend a Wednesday court hearing, 3rd District Judge Bruce Lubeck said he felt uncomfortable making a decision that would impact the rest of Ott’s life without seeing him in person and evaluating whether his widely publicized mental decline rendered him unfit to have any say over the outcome.

“The statute says he has an absolute right to be here,” Lubeck said, even though there was a verbal consensus among Ott attorney Dara Cohen and lawyers for both Ott’s siblings and their adversary in the guardianship case, Ott girlfriend Karmen Sanone, that the former recorder’s presence was not necessary, given his diminished mental state.

“I have to choose whether there’s a guardian and who it ought to be. I can ask him that. He may tell me,” the judge said. “Until I get him here, I may not know. [Having him here] informs me on all sorts of levels about what I ought to do.”

Ott resigned Aug. 1 after Lubeck’s initial guardianship decision in favor of the recorder’s siblings. The family then negotiated an agreement for Ott to step aside after a year of fruitless entreaties for him to resign from Salt Lake County Mayor Ben McAdams and the County Council. The county agreed to pay 12 weeks salary — $35,000 — into a trust to be used for his ongoing care.

Lubeck learned only Tuesday afternoon that Ott would not attend the hearing, in part because of the earlier ruling making Ott’s brother and two sisters his temporary guardians and putting them in charge of his financial matters. But Lubeck had left Sanone in charge of Ott’s medical care.

That split authority prevented Ott’s siblings from checking him out of the hospital — where he has been since being forced to leave a long-term care facility after he smashed a television set and tried to put a nurse into a headlock. Only Sanone, as his court-appointed medical surrogate, had authority to move him.

Sanone maintained the hospital would not release Ott unless he had another facility to go to. She blamed his siblings’ tight financial controls with making it difficult to find a suitable place, a charge they denied.
Seeing the bind he had created, Lubeck reversed his earlier decision and put the siblings in charge of Ott’s overall medical care until the delayed hearing, now set for Oct. 12-13. Sanone believes she has that authority, due to an advanced medical directive that Ott signed before his mental-health problems became apparent, said her attorney, Aaron Bergman.

Lubeck also denied a request by Cohen to allow Ott’s guardians to sell his Salt Lake County home and to use the money to cover his future medical care. Again, the judge said he wanted to wait until hearing what Ott himself wants to do.

Cohen surprised Lubeck early in Wednesday’s proceedings when she withdrew a motion to close the guardianship hearing to reporters. She acknowledged her request probably would lose out to counterarguments by The Salt Lake Tribune, Deseret News, KTVX Good 4Utah News and The Utah Headliners Chapter of the Society of Professional Journalists and felt it was more important to spend time on the issue of Ott’s care.

Ott no longer watches television news or reads newspapers, Cohen noted, so the media’s coverage would not impact him.

Lubeck was not convinced, saying multiple times that he believes Ott’s right to privacy would be undermined if the hearing was open. “It seems that may cause him some damage even if he’s unaware of it,” he said, inviting all of the attorneys to opine on whether a judge can close the proceeding “even if everyone else wants it open.”

After initially saying he had no objections to opening the hearing, Bergman later changed positions after Sanone objected that some of her financial information could be disclosed in the hearing.

Nearly two dozen witnesses currently are scheduled to testify, although Lubeck pleaded with the attorneys to try to minimize the number.

Full Article & Source:
Without Gary Ott to speak for himself, judge delays decision on future of former county recorder

See Also:
Sister, brother file for legal guardianship of embattled county recorder

Jay Evensen: What is the solution for an incapacitated politician?

Lawmakers continue conversation about bill to remove incapacitated elected officials

Wednesday, September 13, 2017

Guardianship Case Files Presumed Open, NY Judge Finds

Contrary to what many New York guardianship attorneys believe, guardianship case files are presumed open under state law, a Nassau County judge ruled.

Ruling in a case involving Amelia Gould, a property owner and art collector worth at least tens of millions of dollars who was incapacitated, acting Nassau County Judge Gary Knobel said a party who is not related to Gould did not show good cause for sealing the case records.

There are allegations in the case of "financial exploitation" and "Svengali-like manipulation" over Gould, Knobel said.

While he noted the allegations in In the Matter of the Appointment of Denise B. Caminite and Stephen W. Schlissel are "merely" allegations and have not been discussed in a hearing, he said sealing the record would have the effect of "burying secrets."

Knobel's ruling comes after a series of stories by Long Island-based newspaper Newsday revealed Long Island judges had sealed records for at least 200 cases over a 10-year period by using boilerplate phrases in their orders rather than tailoring them to the facts of the case.

Knobel signed his ruling on Sept. 5. Gould died on Sept. 6, said Saltzman Chetkof & Rosenberg partner Michael Chetkof, Gould's attorney.

Chetkof said that, for guardianship practitioners, New York law regarding the sealing of records from guardianship cases is complicated by the Health Insurance Portability and Accountability Act of 1996, and the fact that matrimonial cases are sealed.

To reach his decision, Knobel had to balance privacy concerns for an incapacitated person and the need for transparency in the case, Chetkof said.

"It's a hard balance and I think he tried to explain that in his decision," Chetkof said.

Rocco Avallone of Avallone & Bellistri represented Denise Caminite, who is not related to Gould and moved to seal the records in the case. He did not respond to a message requesting comment.

Boeggeman, George & Corde partner Richard Corde represents Gould's surviving relatives.

In New York, the disclosure of records in guardianship cases is governed by Mental Hygiene Law §81.14, but jurisprudence regarding the statute are relatively uncharted waters for New York courts.

There have been no appellate rulings in New York on whether guardianship records should be sealed, Knobel said, and only a few published trial court decisions on whether good cause has been shown to seal records.

Despite his ruling, Knobel called on the state Legislature to re-evaluate Mental Hygiene Law §81.14, which was enacted in 1993 to take into account the impact of the Health Insurance Portability and Accountability Act on guardianship proceedings as well as the relative ease of committing identity theft.
Full Article & Source:
Guardianship Case Files Presumed Open, NY Judge Finds

MITCHELL: First African-American Public Guardian to leave office

Cook County Public Guardian Robert F. Harris
Robert F. Harris, Cook County’s first African-American public guardian, is leaving after 26 years — nearly 14 years as guardian — to become a Cook County Circuit Court Judge. Harris’ last day will be Sept. 20.

“I’ve loved every minute of it. It is something that still holds my attention,” Harris said in an interview.

Robert F. Harris, Cook County’s first African-American public guardian, is leaving after 26 years — nearly 14 years as guardian — to become a Cook County Circuit Court Judge. Harris’ last day will be Sept. 20.

“I’ve loved every minute of it. It is something that still holds my attention,” Harris said in an interview.

While Murphy was always in front of the cameras, Harris worked under the radar.

“When Patrick was public guardian, people didn’t really give a great deal of respect to the work and the laws concerning children and the elderly. It was almost like the ’60s. You had to kick the door in. Since I’ve been public guardian I’ve had the advantage of doors being opened somewhat,” Harris said.

Harris calls himself “the guardian of last resort,” although in reality, he really is a guardian angel.

The office provides legal representation for abused and neglected children, minors caught up in the turmoil of divorce, the disabled and the elderly.

His biggest concern has been resources.

“This is something you would not want to see left in shambles because of the budget. You really do need the support of county government and the support of the public,” he said.

When Harris steps in, a family is in full crisis.

Unfortunately, in recent years he has seen a significant uptick in the exploitation of the elderly.

“I’m called in by the Adult Protective Services of the city and the state because there hasn’t been any intervention from either a family member or really good friends,” Harris said.

“When I first became public guardian, mortgage fraud and home improvement fraud was rampant. Since the housing market dropped, I’ve seen less of that. I see more people coming in robbing bank accounts, and plundering the elder person’s 401(k) accounts,” he said.

“We’ve seen elder abuse officers — people that were supposed to be working with seniors in the community — ripping people off and changing their estate plans. And I’ve seen children who have stolen from their mothers and fathers. When we have those kinds of cases it can become quite contentious because families sometimes think that they should be able to do what they want,” Harris said.

Over the past few years, the exploitation and financial recovery unit has recovered $50 million in stolen assets.

He is most proud of the work the unit did to recover $300,000 siphoned from an account of an 86-year-old bank customer by a Chase teller. The Cook County public guardian’s office sued and the money was eventually restored.

“The great piece of this story was the U.S. Attorney’s office was looking at this case and they ended up prosecuting the woman and she was convicted and got some time,” Harris said. “A lot of these cases go unnoticed so people treat old folks like ATMs and grocery stores. The fact that this became such a public case was really important. It gives people a pause.”

The future judge also takes pride in the fact that during his tenure, there were no scandals.

“People may complain, but we are not a scandal office. We have not left some old person sitting on a park bench, or through our inaction, some child has been hurt,” Harris said.

Full Article &  Source:
MITCHELL: First African-American Public Guardian to leave office

Salem man sentenced to 30 years for exploiting the elderly

Joshua S. Miller
On Thursday, Judge Ronald D. White sentenced Joshua S. Miller, 38, of Salem, to 30 years in prison for two counts of financial exploitation of the elderly. The case was prosecuted by Phelps County Senior Assistant Prosecutor Brad Neckermann.

Miller had pleaded guilty back in 2014 to two counts of financial exploitation of the elderly, where he had scammed two elderly Rolla citizens out of almost $200,000. According to Neckermann, Miller used a common scam where a person befriends someone, oftentimes a person who is elderly or disabled, and then offers to perform maintenance work on their homes. Miller told both victims that they needed work on the roofs, insulation in their attics, and other fixes. He told the victims if they didn’t pay what he asked, their homes would be at risk.

As is often the situation on these cases, the victims were elderly and unable to verify that the repairs were necessary. One of Miller’s victims wrote checks to Miller totaling $183,500 over a four-year period for repairs on a home that was worth less than $150,000.

In June, 2014, Miller was given probation by the original judge to offer him an opportunity to pay back the victims. While on probation, Miller did not pay back any of the money and committed a new offense in Texas County, where he stole jewelry from the home of an elderly woman. Judge White found that the defendant had violated probation and ordered Miller to serve his 30 year sentence.

Prosecutor Brendon Fox issued a warning for people to look out for their elderly relatives and friends.

“These scams are more common than you think, and they are rarely reported because the victims are often either unaware they’ve been scammed or are too embarrassed to report it. Please look out for your friends, family, and neighbors, and if you think they are being taken advantage of by someone, report it,” Fox said.

If you believe someone is the victim of financial exploitation of the elderly or disabled, you can contact the Adult Abuse and Neglect Hotline at 1-800-392-0210.

Full Article & Source:
Salem man sentenced to 30 years for exploiting the elderly

Tuesday, September 12, 2017

Tonight on T. S. Radio with Marti Oakley: The Medical Abduction of Anastasia Adams with Yolanda Bell

5:00 pm PST … 6:00 pm MST … 7:00 pm CST … 8:00 pm ES
Yolanda Bell has been fighting for her sister Anastasia Adams. Forced under the control of another of those "guardians" who are supposed to be overseeing her care, we see the usual method of operation.

Prevent Hospitals from Seeking Guardianship As Means 2 Override Patient Rights

Day 204 – Here We Go Again
Yesterday when I was told by Inova Alexandria Hospital personnel that I could not visit my sister and had to leave the hospital it was supposedly because they did not have a sitter to eagle eye me during my visit. I was assured they would call me and let me know when they had one available. When I called and spoke with the nursing supervisor on the floor my sister was on I was told they thought she might be discharged and to call back later. At around 2:20 I called the nursing facility to see if she had been brought back so I could head out there before the end of my restricted visiting times and they had not heard she would be sent back today. I called the hospital and spoke with the floor supervisor again. This time she told me I would have to speak with guardian Labowitz to get any information on visitation. I reminded her what she had stated earlier about a sitter and she repeated that I would need to speak with Labowitz. I emailed him and asked if I would be able to visit Anastasia in the hospital this evening. He responded that she would be returned to the nursing facility sometime after 4:30 pm, he then stated I would not be able to see her until Monday. So Anastasia has gone through a very traumatic situation and other than several hours on Wednesday she has been denied her family to comfort her and only then because they thought she was dying.

LISTEN to the show live or listen to the archive later

Las Vegas lawyer pleads guilty to stealing millions from clients

Longtime estate attorney Robert Graham admitted in District Court Thursday to stealing more than $16 million from clients, many of whom relied financially on trust funds he oversaw.

Graham, 52, who is in custody at the Clark County Detention Center on $5 million bail, pleaded guilty before District Judge Kerry Earley to two felony counts of theft and three counts of exploitation of an older/vulnerable person. He faces a prison term of 16 to 40 years at his Jan. 11 sentencing.

“He’s a despicable predatory thief, plain and simple,” District Attorney Steve Wolfson said after the hearing. “He’s going to serve more time in prison than some murderers. As much justice as we could deliver was delivered today.”

Graham wore black reading glasses as he stood before Earley in jail garb and chains to enter his plea.

“I’m guilty of these charges, your honor,” Graham told the judge.

His lawyer, Deputy Public Defender Bryan Cox, added afterward, “It’s been a very difficult case, especially for the victims and the victims’ families.”

In the courtroom, Chief Deputy District Attorney J. P. Raman, the lead prosecutor in the case, read aloud the names of more than 110 clients who deserve a share of the $16 million in restitution prosecutors will seek against Graham.

The money was stolen between 2011 and 2016, Raman said in court papers Thursday.

The thefts — which ranged from as little as $20 to more than $1 million — occurred in 64 estate cases, 21 trust funds, 10 guardianship cases, and four special needs trusts, the court papers show.

Graham’s guilty plea capped a 10-month legal saga that began when he abruptly shut down his Lawyers West office in Summerlin on Dec. 2 after years of looting client funds.

In interviews with the Las Vegas Review-Journal after his indictment earlier this year, former clients described their frustration with Graham as they fought, sometimes desperately, to get him to turn over their funds in the years and final months before he closed his law practice.

Clients lost everything

The victims who lost everything include a wheelchair-bound woman with cerebral palsy and three young children who survived a crash that killed their parents. Some of the victims are expected to testify at Graham’s sentencing.

Graham secretly funneled an average of $187,000 a month in client funds over the years to a special bank account to run his law practice and pay personal bills, grand jury transcripts show.

He used client funds to pay $244,000 in taxes and $700,000 a year in advertising. He also used the money to make thousands of dollars more in charitable donations to numerous organizations,
including the Church of the Latter Day Saints and Boys Town of Nevada, the testimony shows.
Graham, once a regular fixture on local television promoting his law firm, described his practice as a 20-year business failure in a December interview with the Review-Journal.

“I was responsible for the litigation and felt I had no out,” Graham said. “So bit by bit, I moved the chairs on the deck. Each year, things got worse and worse, and I tried to bail myself out and just couldn’t.”

The State Bar of Nevada moved quickly to take control of Graham’s cases after he abandoned his clients in December and obtained a court order for his temporary suspension.

Assistant Bar Counsel Janeen Isaacsonhas since asked the Nevada Supreme Court to permanently disbar Graham.

“He stole millions of dollars to feed his ego and desires for wealth and power, and he used his law license to do it,” Isaacson said at a recent disciplinary hearing.

Several former clients filed an involuntary bankruptcy petition against Lawyers West in December seeking the firm’s remaining assets.

But lawyers for the clients have admitted there is slim chance of recovering the missing funds. In Bankruptcy Court papers, Lawyers West listed $8.7 million in liabilities and only $438,000 in assets, mostly in unpaid legal fees unlikely to be collected.

Wolfson said Thursday that obtaining restitution from Graham in the criminal case also will be difficult because of his lack of assets.

“The odds of recovering anything significant are probably not very likely,” he said.

Full Article & Source:
Las Vegas lawyer pleads guilty to stealing millions from clients

Grand jury accuses Illinois special prosecutor of misconduct

Brian Towne
An Illinois state prosecutor who had been assigned to investigate police and prosecutorial misconduct arising from a wrongful murder conviction has himself been indicted on multiple misconduct charges.

A grand jury in LaSalle County, Illinois, returned a 17-count indictment on Tuesday night accusing Brian Towne of official misconduct and misappropriating public funds while in office. Towne had been the state's attorney there for a decade until he lost a re-election bid in November.
After losing the election, Towne quickly found a job as a special prosecutor at the Illinois Office of the State's Attorney Appellate Prosecutor. He had chaired the agency's board and taught classes at its continuing legal education conferences.

One of his first assignments was to investigate a perjury complaint arising from the wrongful conviction of Jack Daniel McCullough for the 1957 kidnapping and murder of Maria Ridulph. The case was featured in CNN's 2013 series "Taken," which raised doubts about whether McCullough had received a fair trial.
Towne stepped aside from the perjury investigation in March after CNN reported he was under scrutiny for how money was spent from an asset forfeiture fund he created.
The fund was generated from property and cash seized by a drug interdiction unit of mostly retired Illinois state troopers authorized by Towne to stop and search "suspicious" vehicles with cannabis-sniffing dogs along Interstate 80. If marijuana was found, police confiscated the vehicle and its contents.
Towne launched the unit and fund in 2011 during his tenure as the state's attorney. Court records indicate Towne's team, dubbed SAFE for State's Attorney's Felony Enforcement, brought in $1.2 million between 2011 and 2016.
Neither Towne nor his lawyer responded to requests this week for comment. But in an earlier conversation with CNN, Towne denied wrongdoing and expressed confidence he would prevail in court. He talked with a local newspaper on Tuesday evening, just after the indictment was filed.
He said the indictment was orchestrated by his political opponents. 
"This is clearly an abuse of power and dirty politics at its worst," he told the LaSalle News-Tribune, adding that the situation was "completely unacceptable."
"I simply ask the people of La Salle County to reserve judgment until this case is resolved appropriately."
According to the indictment, Towne allegedly used SAFE's asset forfeiture fund to fund local youth sports teams, school projects -- and his own lifestyle and re-election campaign. Other funds came from a drunken-driving awareness program.
Towne has said he had no problem using confiscated drug money to support youth athletics teams and school trips because it keeps kids occupied and away from drugs. 
He also stands accused of using forfeited money on personal expenses, including $21,265 to buy a used SUV and another $2,693 for Wi-Fi at home. The indictment alleges he campaigned from the state's attorney's office; some employees allegedly worked on campaign matters during office hours and used office supplies purchased by the county. 
The indictment further alleges that Towne illegally accepted $50,000 in payments from the state of Illinois for teaching at legal conferences and seminars. He also allegedly dipped into forfeited funds to cover airfare, meals and hotel expenses for other conferences in Orlando and Las Vegas. 
Some of the 77 motorists who lost property to the SAFE unit have joined a federal class action lawsuit seeking damages for civil rights violations. For some, it was cheaper to just walk away, leaving their money and property in LaSalle County.
Stephen Komie, the attorney who filed the suit, said Wednesday that the charges show what can happen when police and prosecutors engage in what he called "contingent-fee law enforcement." He says money should never be tied to arrests, especially if there is little or no oversight on how it is spent.
In June, the Illinois Supreme Court decided 5-2 that SAFE was not a valid police agency. The court found that prosecutors overstep their authority when they create their own police squads, and that Towne hadn't shown that police weren't doing a good job at enforcing drug laws.
Towne was not arrested; instead, prosecutors mailed him a notice to appear, said Assistant State's Attorney George Mueller, who declined to discuss the charges further. Towne has not entered a plea yet.
Before his legal troubles, Towne had been tapped to review the actions of state police and DeKalb County prosecutors who put together the coldest murder case ever tried.
The 1957 kidnapping and murder of second-grader Maria Ridulph has haunted the small town of Sycamore, Illinois, for nearly 60 years. Hundreds of suspects were questioned and cleared over the years. And, in the days following the kidnapping, FBI Director J. Edgar Hoover and President Dwight D. Eisenhower took a personal interest in developments in the case.
But the feds came up empty and left the investigation in 1958 when Maria's body was found and it appeared she'd never crossed state lines. And then the case went stone cold. 
In 2012, McCullough, a former neighbor, military veteran and ex-cop, was convicted and sentenced to life in prison following an investigation led by Illinois State Police. McCullough, who is 78 and lives in Seattle, was exonerated earlier this year and has filed a civil rights lawsuit in federal court.
His son-in-law, Casey Porter, sought an investigation into police and prosecutorial misconduct. His public records request to Seattle police, which assisted in the arrest, uncovered a videotape of an interrogation that Illinois prosecutors had claimed in court did not exist. The tape contradicted the Seattle officer's courtroom testimony.
Porter expressed disappointment.
"Over a year later, no one has been charged or brought to trial," Porter said. "The only thing that has happened is further proof of the systemic corruption in the Illinois legal system related to prosecutors."
Another special prosecutor has taken over the perjury investigation. A status hearing is scheduled Monday in Sycamore.

Full Article & Source:
Grand jury accuses Illinois special prosecutor of misconduct

Woman sentenced to 4 years in prison for faking cancer to steal from at-risk elderly man

GOLDEN, Colo. — A 50-year-old Monument woman was sentenced to four years in prison for bilking an elderly Westminster man out of more than $69,000.

Nahid “Venus” Moshrefi was convicted in July of theft of an at-risk elder and criminal exploitation of an at-risk elder. It deliberated four hours after a four-day trial before returning the verdicts on July 24.

She had faced up to 24 years in prison.

Moshrefi met 80-year-old William Maruca on the Live Links dating service.

The two began dating in 2013. Eventually, she told him she had cancer. Moshrefi testified before the jury that she did not have cancer.

The jury heard testimony from two employees from a FirstBank branch where the victim had an account.

Officials had called the Westminster Police Department, which kick-started a mandatory report of suspected elder abuse.

The employees told the jury that the victim had written multiple checks to Moshrefi for large sums of money.

When police contacted Maruca, he told them he paid for Moshrefi’s doctor visits and treatment.

He said Moshrefi told him that without treatments, she had five or six months to live.

Maruca said he was convinced Moshrefi had cancer because of the pain she appeared to be suffering.

He also said their relationship was kept secret because it was against her religion to be with a white man when she is unmarried.

Moshrefi’s husband testified that they had been married for 13 years.

Moshrefi owns Holistic Healing Health in Colorado Springs, and advertises herself as Dr. Venus K. Moshrefi.

On cross-examination, she said she is not a licensed medical doctor in Colorado.

Maruca’s cousin testified that Moshrefi had prescribed more than 36 supplements for him costing more than $80,000.

Maruca paid for trips to California, Hawaii and Australia for Moshrefi. She told him that she had family in Australia that she would never see again because she was dying. He also bought Moshrefi a car.

Full Article & Source:
Woman sentenced to 4 years in prison for faking cancer to steal from at-risk elderly man

Monday, September 11, 2017

Tonight on T. S. Radio: Is Mass Murder Happening in Montgomery County, PA?

5:00 pm PST … 6:00 pm MST … 7:00 pm CST … 8:00 pm ES
Guests: Coz Whitten-Skaife, Mary Whitten and other family members.

This is a show you do not want to miss!

Pennsylvania appears to be about to exceed Florida and Tennessee in its abuse of the elderly by corrupt probate courts, for-profit guardians, unethical attorney's and their constant companions...the participating nursing homes.

In what has to be one of the most extreme cases of probate abuse with the intent to exploit the estate, Harvey Whitten is that case. Highly educated and successful, Harvey became a prime target for the predators in Montgomery County, PA due to a stroke. Harvey never had a chance to recover. F. Harvey Whitten who suffered from vascular dementia, was being chemically restrained with Haldol.

This was done without the family's knowledge. Haldol is not appropriate for use on those over 60, nor those with dementia. F. Harvey Whitten is a veteran of the Korean War, and now a victim of Montgomery County Orphans (probate) court. Deborah Klock, a nurse, was named to replace Harvey's companion who had passed away, as co-guardian on November 16, 2012 by Judge Stanley Ott, of the Orphan’s Court of Montgomery County. Ott dismissed Whitten’s request for his own counsel and ordered Diane Zabowski to act as his counsel and it was she who named Nurse Klock as co-guardian.

Both Mary and Coz told RebelPundit that Klock exhibited problems right away. Mary Whitten especially has written numerous complaints against Klock in which she alleges: Klock impersonated a family member, made herself the emergency contact, and changed the medication without notifying the family. The Whitten family fought a long and bitter battle to save their uncle from the ravages of the probate system.

LISTEN to the show live or listen to the archive later

See Also:
NASGA - Harvey Whitten, Pennsylvania Victim

Florida Supreme Court remands case involving incapacitated person's right to marry

TALLAHASSEE — The Florida Supreme Court has quashed the decision of a lower court in a case concerning whether a marriage can be voided, according to an Aug. 31 court opinion.

Glenda Martinez Smith petitioned the court after her marriage to J. Alan Smith was deemed invalid because of his incapacitated state.

Glenda Smith and Alan Smith were engaged in 2009, a year before he was in a car accident that left him with head trauma and partially incapacitated. When a Florida resident is described in this state, a guardianship has the authority to take some rights, including marriage. Still, there was a question of whether the couple needed to receive approval from the court before they tied the knot in 2011, even though they were engaged before he was deemed incapacitated.

John Cramer was given the guardianship title over Alan Smith’s affairs. Glenda Smith requested that Cramer petition the court for approval but he “refused,” according to court records.

Lynne Hennessey, Alan Smith’s court-appointed counsel then petitioned the court to annul the marriage in early 2013 under the notion that the court did not approve the marriage beforehand.

In the trial court, Glenda Smith moved to validate the marriage, and Hennessy motioned for summary judgment. A court denied her request and granted Hennessy’s.

Glenda Smith then appealed the judgment of annulment with the 4th District Court of Appeal, stating that Florida laws did not require approval of marriage before the actual ceremony but that it could be ratified afterward. She then referred to a case in 2012 that involved Alan Smith being moved to another living facility and said the court acknowledged her marriage at the hearing.

Still, the district court sided with the trial court that “the right to marry” is subject to court approval and that “if a person deemed incapacitated has had his or her right to contract removed, he or she has no right to marry unless the court gives its approval.”

It also stated that since the marriage was considered void in the 2012 hearing, the court’s recognition of the marriage was irrelevant.

Still, Judge Martha C. Warner of the 4th District Court of Appeal challenged the interpretation of some of the Florida statute. She wrote the law “does not state that marriage is prohibited unless approval is given prior to the marriage” and that “the right to marry was not removed from [Alan] at the time of the marriage ceremony.”

Warner added that she “would hold that the failure to obtain court approval prior to the marriage at most rendered the marriage voidable, not void, so that the court could approve the union post-marriage," according to court records.

Glenda Smith then submitted a motion to certify a question of public importance, and the court allowed it.

The state Supreme Court answered the question of whether the Florida statute requires approval from the court before marriage and whether sans the approval, a marriage is considered absolutely void. It also explored the other possibility of whether the marriage would be considered voidable leading to the court’s approval after parties exercise their right to marry.

The Supreme Court decided that a failure to seek court approval before exercising the right to marry “does not render the marriage void or voidable.”

It also decided that court approval is needed for those in Alan Smith’s case who have lost their right to marry. While it stated that “any marriage entered without court approval is invalid,” it pointed out that the law “does not prevent the ward or the intended spouse from seeking court approval after marrying in order to ratify the marriage.”

The Supreme Court quashed the 4th District Court of Appeal's ruling and remanded it to the lower court.

Full Article & Source:
Florida Supreme Court remands case involving incapacitated person's right to marry