Metro police officer charged in Guardianship exploitation case

Las Vegas, NV (KTNV) - A Metro Police Lieutenant was jailed Wednesday, Valentine's Day, caught up in a sweeping indictment involving elder exploitation.  Contact 13 Darcy Spears continues her years-long expose on guardianship abuse with this heart- breaking case.

He was supposed to serve and protect but instead he's accused of felony crimes for using Clark County's guardianship system to steal from the estate of a vulnerable couple. And this police officer is directly connected to others first exposed in our ongoing investigation of guardianship corruption.

Lieutenant James Thomas Melton is a decorated police veteran.  As a sergeant, Melton received a group Medal of Valor and Purple Heart in 2009 for being wounded during a domestic violence call where a baby was pulled away from gunfire.

He was also a homicide detective and Metro's SWAT commander--making about $300,000 a year including benefits.

But Valentine's Day, a fall from grace as Melton was indicted by a grand jury and charged with stealing the life savings, over $700,000 from an 87-year-old widow suffering from dementia.

Court records claim Melton deceived the court after the victim died, representing that she was still alive so he could be named beneficiary on various accounts.

And Melton didn't act alone. The indictment shows he hired private guardian April Parks. Parks is already in jail facing over 200 felony counts after our investigation revealed she was double-billing and exploiting clients.

Parks, her attorney Noel Palmer Simpson and former office manager Mark Simmons all face additional charges of exploitation for working with Melton.

According to the indictment, Melton is also accused of stealing the victim's Ford Explorer and taking $2,187.50  from her Disabled American Veterans Charitable Service Trust.

Melton is expected to be in court next week. When allegations first surfaced in July, he was put on leave with pay. Metro says he will now be relieved of duty without pay.  The trial for Parks and her co-defendants is scheduled for May.

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Metro police officer charged in Guardianship exploitation case

Sitting Cook County judge convicted in mortgage fraud scheme

A Cook County, Ill. circuit judge is now facing resignation following a conviction in a federal $1.4 million mortgage fraud scheme.

Following a six-day trial, a jury convicted Judge Jessica Arong O’Brien of two counts of fraud for scamming several different lenders through the purchase of two properties on the city’s South Side when she was a lawyer and real estate agent 10 years ago.

The Chicago Tribune reports that O'Brien was elected to the bench in 2012 and is the first Filipina judge in Cook County. She presided over a small-claims courtroom before being reassigned to administrative duties following her indictment last year.

U.S. District Judge Thomas Durkin set O’Brien’s sentencing for July 6.

The Tribune reports that while the scheme took place long before O’Brien was elected to serve as a judge, under Illinois state law it is mandatory that an elected official can’t stay in office after a felony conviction but the timetable for her removal is unclear.

At the time of the fraud, O'Brien was serving as special assistant attorney general for the Illinois Department of Revenue, where she also reportedly held the position of chief counsel to the Illinois Lottery. O’Brien also owned her own real estate company and worked part time as a loan originator for Amronbanc Mortgage Corp.

From the Chicago Tribune:

Assistant U.S. Attorney Matthew Madden told jurors in his remarks that O'Brien lied at least four times on loan and refinancing applications for two investment properties she purchased in 2004 and 2005 when she was working as a lawyer for the Illinois Department of Revenue.

She then made a profit by unloading the two homes in 2007 by paying kickbacks to a straw purchaser, Madden said.

In all, O'Brien pocketed at least $325,000 from the transactions, Madden said. She also caused losses to lenders after the straw purchaser defaulted on payments and the properties wound up in foreclosure, he said.

"She used lies to buy and sell these properties," Madden said.

Among the lies O'Brien told were listing her income as $81,000 in 2004 when in fact she was on maternity leave and made only $11,000 that year, Madden said.

The next year, O'Brien claimed in refinancing documents that her company, O'Brien Realty, took in at least $240,000 in profits in 2005, but tax returns showed only $21,000 in receipts, Madden said.

Maria Bartko, a co-defendant in the case, was also working for Amronbanc and agreed to take part in the scheme, prosecutors said. Bartko plead guilty last month to one count of mail fraud affecting a financial institution and agreed to testify against O’Brien but the Tribune reports she was never called as a witness.

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Sitting Cook County judge convicted in mortgage fraud scheme

Washington State May Make It Easier to Sterilize People With Disabilities

In 1936, Ann Cooper Hewitt filed a lawsuit against her mother — and with good reason. At the age of 20, her mother Ann had sterilized her against her will. Having succeeded in classifying her as having an intellectual disability, Ann’s mother was legally allowed to authorize the operation over Ann’s objections. Her mother’s lawyer responded by claiming that Ann’s sterilization had been “for society’s sake” due to the girl’s “erotic tendencies.”

Even in the age of the eugenics movement, where tens of thousands were involuntarily sterilized by state governments who sought to breed “better” human beings by removing disability from the gene pool, the Hewitt case attracted nationwide attention. Could a diagnosis of disability allow parents to control their child’s reproductive future against his or her will?

Ann believed it could not, summarizing her fate matter-of-factly. “I had no dolls when I was little, and I'll have no children when I'm old,” she said. “That’s all there is to it.”

We’ve come a long way since the age of the eugenics movement, particularly when it comes to matters of reproductive choice and bodily autonomy. And yet, state laws still allow people with disabilities to be sterilized without their consent. Today the state of Washington is considering a proposal that the ACLU believes could expand the use of sterilization for individuals under guardianship.  Guardianship is a surprisingly common legal arrangement where a third-party is authorized to make virtually all decisions for a person with a disability.

Currently, state law fortunately prohibits guardians from authorizing sterilization without court approval — but the state judicial system is currently considering a proposal to create a form to more clearly articulate how guardians can request permission for this procedure. While the proposal is designed to clarify existing law, advocates with disabilities and the ACLU believe that creating this form will streamline the process and increase the number of guardians requesting the sterilization of those under their power.

Ivanova Smith, a new mother with a developmental disability, has written beautifully in the ACLU of Washington’s blog about how people with disabilities can become loving, responsible parents, if they so choose. People with disabilities should not be denied this choice. Given the unfortunate history of involuntary sterilization of people with disabilities across the country, states must take extra caution to avoid imposing sterilization against those who, for whatever reason, do not freely choose it. It is vital that we leave behind the days in which people with disabilities lacked reproductive choice.

Whether it comes from parents, the court system, or anyone else, sterilization should never be imposed on a person without their consent.

For those who do choose it for themselves, sterilization can be an appropriate medical procedure. But the presence of guardianship seriously complicates the issue. Guardianship entails loss of legal adulthood, meaning that an individual lacks capacity in the eyes of the law to make their own decisions or express their own will and preference on how they should be treated. Measures to make it easier for guardians to permanently sterilize people with disabilities should be viewed as suspect. The Hewitt case is only one example in a long line of disagreements over who gets to make choices about medical procedures applied to people with intellectual disabilities.

Such decisions are often treated as family choices rather than questions of individual autonomy, which should require an expression of preference on the part of the person receiving the procedure. Some guardians cite fears of sexual assault in choosing to sterilize people with disabilities — yet sterilization in no way prevents the sexual assault of people with developmental disabilities, an all too common occurrence. Instead, it can merely hide evidence of it. As such, there are credible concerns that guardians may seek sterilization as a means of lessening the complications emerging from abuse, rather than taking the measures necessary to stop it. The state of Washington should decline to streamline the process for guardian-imposed sterilization. The state can ensure that individuals who require decision-making support have a clear process by which they — rather than their guardian — can request such a procedure (if it is truly their choice to do so). Guardianship, with its total loss of decision-making authority by the individual, is not the appropriate mechanism for this. Instead, the state should consider joining Texas, Delaware, and jurisdictions around the world in implementing supported decision-making, a new legal arrangement that allows people with disabilities to choose trusted advisors to help them with their choices without surrendering final decision-making authority.

Control over one’s own body is one of the most fundamental civil liberties. Everyone deserves the right to have the final say about what happens to their own body. People with disabilities are no different.

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Washington State May Make It Easier to Sterilize People With Disabilities

New Mexico Guardianship Reform Bill Goes to Governor

Legislation to improve New Mexico’s troubled guardianship system through transparency and greater involvement of family members is headed to the desk of Gov. Susana Martinez.

The 60-page bill is designed to prevent abuse and exploitation of thousands of incapacitated people who are under court-ordered guardianship or conservatorship in the state.

The measure, which involved last-minute efforts by both Democratic and Republican lawmakers to address the issue this session, put off more comprehensive reforms, which are to be studied for the next two years.

Sen. Ivey-Soto

“Some things have to be above politics,” said state Sen. Daniel Ivey-Soto, D-Albuquerque. “This guardian issue is one of those issues.”

After a unanimous vote of approval by the House late Wednesday, the Senate took up the amended measure for concurrence in the first hour of the last day of the 30-day session. That vote was unanimous. If Martinez approves the bill, changes could go into effect July 1.

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Guardianship Reform Bill Goes to Governor

Guardianship reforms near finish line

Reps. Jim Dines, R-Albuquerque, left, and Daymon Ely, D-Corrales, discuss proposed guardianship changes in a House Judiciary Committee meeting in Santa Fe this week. (Eddie Moore/Albuquerque Journal)

SANTA FE – A package of remedies to try to fix the state’s ailing guardianship system cleared the House late Wednesday on a 63-0 vote, with the measure headed to the Senate for concurrence as the final hours waned in this year’s legislative session.

The bill, if approved, would provide more public and family access to the traditionally closed system for the hundreds of mentally or physically incapacitated adults in New Mexico who are placed under court-appointed guardianships or conservatorships each year.
If approved, the reforms would into effect July 1.

State Rep. Gail Chasey, D-Albuquerque, chairwoman of the House Judiciary Committee, before the vote Wednesday night said the bill is “manageable, measured and still addressed substantive reforms.”

Earlier in the day, Chasey said addressing the guardianship issue was a “huge priority in the session.”

Heavily amended in the committee process, the measure “is an excellent and substantial start, but it is by no means the end of the process,” said Rep. Daymon Ely, D-Corrales.

Ely led the move to lop off 200 pages of the original bill, which would have adopted a version of a new model Uniform Guardianship Act, which was considered too costly and in need of more study.

Before the House vote, Ely said that not all court-appointed guardians or conservators are “bad actors.”

“But this has become a tremendous problem,” Ely said. “There were some really doing horrendous things to very vulnerable people and their families.”

The bill relies on increased transparency, providing for open court hearings and more involvement of family members, to help deter abuses and exploitation that critics of the system have complained about publicly for months. The open hearings could still be closed at the court’s discretion, but an open hearing on the closure would have to be held first.

To salvage the reform bill, Chasey’s committee agreed to kill the section that would have implemented a national reform statute by July 2020.

The courts, which still can’t say exactly how many people are currently under guardianships or conservatorships, say New Mexico’s underfunded judicial system isn’t ready for such a dramatic and costly change.

Earlier in the week, Ely took the lead in proposing amendments to keep the implementation of the key provisions low-cost, within $1 million.

“This is a long-overdue reform,” Ely told the Journal. “There’s two ways that you get the crooks. One is you shine a light on them with transparency. The other is you make them accountable. You make them worry that somebody’s going to catch them.”

Nearly all the criticism of the system involves corporate guardians and conservators appointed by the courts in cases in which people are mentally or physically incapacitated. Over the past year, a major New Mexico corporate guardian, Ayudando Guardians, was closed by the U.S. Marshals Office after its top executives were indicted on federal charges related to the embezzlement of more than $4 million in client funds.

Primary opposition to the scaled-back version came from its original sponsor, state Sen. Jim White, R-Albuquerque, who proposed the state adopt a version of the newly released Uniform Guardianship Act, which provides for improved representation of those incapacitated people in guardianship and conservatorship proceedings. The comprehensive model law would also set out specific ways families could file grievances with the court about the appointed guardian or conservator.

“I’m so happy we’ve got this interest going, We didn’t have this a year ago,” White told the House Judiciary Committee before it scrapped the provision to implement the new model law by 2020. “But there’s a lot more that can be done. We need to make a commitment to bigger changes.”

White said that if someone would ask him whether they should get a guardian appointed, “I’d say, ‘Don’t do it.’ The system is so broken right now.”

He described the current closed process as “very, very scary.”

Ely, an attorney who said he has sued conservators in the past, told the Journal his amendments included a provision to outlaw the practice of some conservators, who oversee an incapacitated person’s finances, to require heirs to release them from all liability before they receive any distribution from an estate.

In addition, under the proposed legislation, “You can’t restrict visitors as much as you used to,” said Ely, who added that some “nefarious” guardians and conservators keep relatives away so they can “isolate the incapacitated person.”

Another feature of the bill is to require professional conservators to post bonds and file regular, extensive accountings with the courts on how they have handled an incapacitated person’s financial affairs. “I did hear this from one conservator that they couldn’t violate the confidentiality (of the closed process) to cooperate with the audit, and I thought that was unbelievable.” Ely said.

But Ely said the provisions aimed at accountability would be ineffective without the proposed $1 million in funding in House Bill 2 dedicated to guardianship reform. That money would help the courts research their case files to ascertain who is currently under guardianship and their status. The appropriation would help pay for independent auditors to perform spot checks.

Judges would also need to be educated on the reforms, he said.

“We’re depending on you to make it right for people who don’t have a voice” said Mary Darnell. The controversial guardianship/conservatorship case in 2010 of her mother, Blair Darnell, was featured in “Who’s Guarding the Guardians?,” a Journal investigative series, in late 2016.

Darnell asked the committee members to consider what would happen if they someday were placed under a court-appointed guardianship or conservatorship in New Mexico.

“If somebody walks into your home … puts down court papers and says they’re appointed by the court to take care of you and they have all your finances in their name … your family is going to be turned upside down. The courts are culpable, because they hire these people and they’re not overseeing them.”

Ely said the challenge of fixing all the problems with current law is daunting, considering that legislators had less than 30 days to achieve consensus.

“I think everybody, including Sen. White, are all motivated to do the right thing. Is it going to be perfect? No. But is this an incredibly significant reform to the process? Yes. And if we discover there are problems, we can come back during the next 60-day session and fix them.”



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Guardianship reforms near finish line

Former Schaumburg attorney guilty of stealing $200K from clients, including relatives

A former Schaumburg lawyer faces up to 15 years in prison after he was convicted Tuesday of swindling his relatives and others out of more than $200,000, officials said.

A jury found Lino J. Menconi, 52, guilty of two counts of theft of more than $100,000 each, according to the Cook County state’s attorney’s office.

The Illinois Supreme Court suspended and then in 2014 disbarred Menconi after the Attorney Registration and Disciplinary Commission accused him of stealing more than $600,000 from clients starting as far back as 2006.

The commission accused him of misleading clients and forging their signatures on settlement payments for money to pay for his mortgage, his children's education, property taxes and country club bills.

His victims included his aunt and uncle, Judy and Leno Menconi, of Oak Lawn. Their son, Mike Menconi, said his parents, now deceased, were in poor health when his cousin took advantage of them, and that their financial losses may have contributed to his father going to a nursing home rather than receiving home health care.

Lino Menconi “is like a serial lying sort of predator,” Mike Menconi said. “He’s just going to take your money and disappear. … I feel like I got justice for my parents.”

Menconi represented himself in the case, though he is no longer a practicing attorney. Prosecutors requested that Menconi be taken into custody following the decision, Mike Menconi said, but he was allowed to remain free on bond.

Sentencing has been set for March 1.

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Former Schaumburg attorney guilty of stealing $200K from clients, including relatives

Amid public outcry, Minnesota senior living complex Autumn Glen reverses huge hike in rents

Angry residents at Autumn Glen Senior Living in Coon Rapids pushed back against steep rent increases of 15 to 30 percent, which had threatened to uproot them from their apartments.

After an outcry from elderly residents and state lawmakers, a large senior living complex in Coon Rapids has reversed plans to impose double-digit rent increases that could have uprooted dozens of longtime neighbors and splintered the community.

In a letter sent Tuesday, the operator of Autumn Glen Senior Living apologized for not communicating directly with residents about rent hikes of 15 to 30 percent that took effect in January. 

The operator said it would instead limit the rent increase to 4 percent and promised to provide a clear explanation for any future rent increases of 5 percent or more. “We hope these adjustments will make your apartment feel like home again as we work together in supporting your future needs here,” wrote Dan Dixon, president and chief executive of Guardian Angels Senior Services of Elk River, a nonprofit organization that manages the facility for a group of private investors.

The decision marks a dramatic change in fortunes for the roughly 100 seniors who live at Autumn Glen, a complex that includes apartments, assisted living and memory care.

For nearly two months, residents had challenged the rent increases with limited success. They formed a committee, called legislators and city council members, circulated a petition signed by more than 40 residents, and demanded a meeting with the facility’s private investors. Instead, they were referred to Guardian Angels Senior Services, which said it was unable to explain the reason for the rent increases.

“They underestimated our persistence,” said Janet Dahlquist, 85, who started looking for a new place to live after her rent at Autumn Glen went from $2,600 to $3,000 a month. “I think they thought we were old and frail and unable to speak up. But we were very determined to shake people up about this — and we did.”

Elder-care advocates say the case highlights the general lack of consumer protections for the roughly 60,000 Minnesotans who live in senior facilities across the state. Minnesota is one of just a handful of states that does not license these facilities, which means that elderly residents have few protections against sudden rent hikes and evictions. Despite the vulnerability of their residents, assisted-living facilities fall under the same landlord-tenant rules that govern ordinary rental properties and apartment buildings.

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Amid public outcry, Minnesota senior living complex Autumn Glen reverses huge hike in rents

Surprise man spends thousands in probate court costs as he tries to help wife with dementia

All Bob McGuire wanted was to cash out his wife's modest retirement account and use the money to pay the mounting bills that have accompanied her dementia diagnosis.

After nearly a year, the 75-year-old Surprise resident and Navy veteran has racked up $6,000 in legal bills and court fees to access the $25,000 individual retirement account.

And his ordeal — navigating probate in Maricopa County Superior Court to obtain guardianship and conservatorship of his wife, Linda — isn't over: McGuire is contesting roughly another $2,000 in legal fees from a court-appointed attorney, designated by a court commissioner to represent and protect the interests of his wife.

When it's all settled, the family could end up losing one-fourth of his wife's IRA to legal fees and bills, McGuire said.

Husband challenges court fees

Probate court is designed to preserve the "respect and dignity of vulnerable adults and to assure their proper care and protection of assets," said Bryan Bouchard, a court spokesman.

Court officials would not comment on McGuire's case.

But Bouchard said Maricopa County's court system does everything possible to keep fees to a minimum. And in cases where one party questions the fees being charged by a court-appointed lawyer, the court will hold a hearing to determine whether the fees are "appropriate to the task and cost effective," he said.

McGuire is currently appealing the court fees he has been charged.

Rick Kilfoy, who was appointed to represent Linda McGuire and check on her well being, said a person who is incapacitated must have legal representation and the same lawyer who represented Bob McGuire could not represent his wife. Kilfoy declined to discuss the case further.

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Surprise man spends thousands in probate court costs as he tries to help wife with dementia

Lawyer charged with stealing $1,600 from wallet that was dropped in Wake courthouse

RALEIGH - Wake County sheriff’s deputies have accused a lawyer of swiping a wallet filled with cash after it was mistakenly dropped at the security entrance of the old Wake County Courthouse.

Investigators apparently did not have to look very far to determine what happened after the alleged victim reported that his wallet was missing Monday. Security guards who work at the courthouse entrance say the alleged theft was caught on cameras installed throughout the building.

Lawyer Steven Patrick MacGilvray, 29, has been charged with one felony count of larceny, according to an arrest warrant filed at the Wake County Clerk of Courts Office.

Deputies think MacGilvray, of 820 Handsworth Lane in Raleigh, “feloniously did steal, take and carry away $1,600 in cash, the personal property of Robert McKenley Jeffreys,” according to the arrest warrant.

MacGilvray was taken into custody at the courthouse by Wake Deputy D.A. Taylor shortly after the theft was reported, according to records at the City County Bureau of Identification.

The sheriff’s office declined to comment Tuesday, but security guards working at the Salisbury Street entrance of the courthouse said Jeffreys dropped his wallet while visiting the courthouse with his daughter to pay a research fee.

The security officers said MacGilvray was standing behind Jeffreys when he dropped his wallet at the security checkpoint. Instead of telling Jeffreys he dropped the wallet, MacGilvray reportedly picked it up and stuck it in his pocket.

The security guards said cameras installed in an elevator captured MacGilvray later opening the wallet and, after noting that it was full of cash, putting it back into his pocket.

The security guards think MacGilvray went into a nearby restroom, where he then emptied the cash from the wallet and put the currency into his pocket.

MacGilvray then allegedly went to the Fayetteville Street entrance of the courthouse and gave the empty wallet to a sheriff’s deputy, under the guise of being a good Samaritan returning a lost item, the security guards reported.

The guards said Jeffreys was able to tell sheriff’s deputies the exact amount of cash that was in the wallet and the precise number of denominations.

MacGilvray was licensed to practice law in North Carolina on Aug. 28, 2013, according to the North Carolina State Bar. He was an associate attorney at Coolidge Law Firm in Raleigh, which handles DWI arrests, criminal charges and traffic offenses.

By Tuesday afternoon, MacGilvray’s page had been taken down but his photo was still on the homepage for the firm. Coolidge officials could not be reached for comment.

MacGilvray’s resume on his LinkedIn page stated that he is a 2013 Graduate of Regent University School of Law in Virginia Beach, Va. Prior to law school, he received his bachelor’s in communication at East Carolina University. He is a graduate of J.H. Rose High School in Greenville.

A post on his LinkedIn page states: “Steven’s experience as a former prosecutor has greatly enhanced his ability to assist clients in navigating through the legal process, particularly in resolving a wide variety of misdemeanor and felony criminal cases and traffic-related matters. Additionally, he is dedicated to providing stellar legal services to clients facing a wide array of civil disputes and contract and business law issues.

“Steven is admitted to practice in all North Carolina State Courts as well as the Federal District Court in the Eastern District of North Carolina and United States Immigration Courts.”

The accused attorney’s resume also states that he worked as chief legal counsel with the Raleigh Jaycees and as a volunteer lawyer and mentor with Wake County’s Teen Court.

MacGilvray spent a night in jail and was released Tuesday just after 1:45 p.m., when he posted a $3,000 bond, a Wake sheriff’s spokesman reported.

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Lawyer charged with stealing $1,600 from wallet that was dropped in Wake courthouse

Sheriff's Office Makes Arrests in Financial Exploitation Investigation

02/14/2018 Release from the Augusta County Sheriff's Office:

Brian Shenk

On Tuesday, 02/13/18, the Augusta County Sheriff’s Office arrested Jennifer and Brian Shenk, a Grottoes couple, for financial exploitation.

A family member alerted authorities that Jennifer Shenk, an in-home health care giver, was suspected of stealing personal belongings of the victim, a 72-year-old Grottoes man. An investigation was subsequently launched by an Augusta County Sheriff’s investigator and APS (Adult Protective Services).

The investigation revealed that Mr. and Mrs. Shenk both used the victim’s debit card for personal reasons. It also revealed that Mr. Shenk, who was not providing any assistance but would frequent the home while his wife was working, sold a few of the items reported missing.

The following charges were placed:

• Jennifer Shenk, 32: 1 felony count of financial exploitation of an incapacitated adult
• Brian Shenk, 29: 1 felony count of financial exploitation of an incapacitated adult, and 1 misdemeanor count of obtaining money by false pretenses.

If anyone has any information about this case, please contact the Augusta County Sheriff’s Office at 540-245-5333 or Crime Stoppers at 800-322-2017.

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Sheriff's Office Makes Arrests in Financial Exploitation Investigation

Slimmer guardians bill gains steam

House Speaker Brian Egolf, D-Santa Fe, talks about a guardianship reform bill in the House Judiciary Committee on Monday. (Eddie Moore/Albuquerque Journal)

SANTA FE – The push for greater transparency in the state’s legal guardianship system gathered momentum in a House Judiciary Committee hearing Monday, just as the idea of tethering immediate reforms to a bigger overhaul within two years seemed to dim.

Committee members, who are expected to continue the debate today or Wednesday, appeared ready to strip the guardianship bill of its last nearly 200 pages, which would implement a new model Uniform Act of reforms that the courts say needs more study and dedicated ways of financing the changes.

That measure, spearheaded by Sen. Jim White, R-Albuquerque, passed the Senate last week by unanimous vote, with the Uniform Act to take effect in 2020.

But in recent days, legislators, analysts and the courts have been taking a closer look at the ramifications to better gauge the impact of major changes that would be required of the system, which currently involves an estimated 5,000 to 7,000 existing cases with about 500 new guardianship filings each year.

Stripping the Uniform Act from the measure would leave major, less costly reforms, including open guardianship hearings, expanded notice of court actions to families, greater visitation and bonding of non-family conservators.

House Speaker Brian Egolf, D-Santa Fe, told the committee that if it removed the Uniform Act, he would take steps to see that the rest of the bill moved directly to a House floor vote before the session ends at noon Thursday. “Don’t worry. If we don’t vote on this today, it doesn’t mean it’s not going to happen,” Egolf told the packed committee room.

The bill originally had been assigned to House Judiciary and then House Appropriations and Finance, a path that could very well have led to the measure dying in committee.

Rep. Damon Ely, D-Corrales, offered a slate of amendments to the remaining portion that are expected to be debated today.

Noting that part of his legal practice is devoted to suing other attorneys, Ely said, “I have sued some of these people (attorneys in guardianship/conservatorship cases) in that connection. It is tragic what’s happened.”

“There are a few bad apples that are a disaster, and we have to address it,” he said.

The issue of transparency, and how much is too much, arose during the Judiciary Committee hearing Monday. Currently, all guardianship and conservatorship hearings are closed to the public, and even some family members. But other states have open hearings, which advocates believe would improve accountability of guardians, the lawyers who file the cases and judges themselves.

In earlier versions of White’s bill, such hearings would be open to the public, unless a judge deemed otherwise. But that provision wasn’t included in the bill approved by the Senate, said attorney Jack Burton, who helped White prepare the original bill. The sponsors told the Journal the omission was inadvertent and would be fixed in the measure to be voted on by House Judiciary.

District Judge Shannon Bacon, who testified Monday at the hearing, said the judiciary supports opening hearings to the public. The measure would also give judges the authority to grant requests for guardianship or conservatorship court records that are currently sealed by law.

“It would allow law enforcement to request access to a file, access which currently doesn’t exist,” she said.

But Jim Jackson, director of Disability Rights New Mexico, told the committee, “We may be in the minority, but we think the emphasis towards transparency goes a little too far.” He said there could be privacy issues involved with just “anybody” having access to hearings.

Jackson said the measure, even without the Uniform Act, would provide more accountability by permitting more involvement of families in cases of their loved ones. Having more eyes on the process would also “help uncover some of the problems that have been out there,”Jackson said.
Ely questioned “what the hurry is with the Uniform Act.”

“It’s the sword of Damocles over the judiciary to completely change the system with the hope that some future legislature will fund it,” he said. An estimated $7 million would be required for the first two years of the Uniform Act.

Ely said New Mexico judges, who oversee guardians and conservators, generally don’t scare easily. “But I think they’re scared of the Uniform Act, and I think they should be,” he said.

White, who has been working on the Uniform Act adoption for a year, said he was able to secure about $1 million for the bill as is, but doesn’t know if that funding in House Bill 2 would remain if the model act is eliminated.



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Slimmer guardians bill gains steam

SF officials support expansion of conservatorships to address homelessness, drug addiction

San Francisco city officials are backing legislation by state Sen. Scott Wiener that will expand conservatorships for homeless people. (Examiner file photo)

By next year, San Francisco could have broader conservatorship powers to force those who are homeless and struggling with mental illness and drug addiction to receive treatment.

San Francisco city officials announced their support Monday of legislation by state Sen. Scott Wiener that would expand The City’s mental health conservatorship program used to require a person through a judge’s order to undergo treatment, such as take certain medications or receive specific services.

Speaking with Wiener and Public Health Director Barbara Garcia at a press conference at a San Francisco supportive housing project, Mayor Mark Farrell said The City needs to try new approaches.

“In San Francisco we do have a mental health crisis on our streets and Senator Wiener’s [Senate Bill 1045] will go a long way towards improving our situation here in San Francisco,” Farrell said. “We have to explore new ways to help these individuals.”

The City currently lacks the ability to ask the judge to consider such factors as a person’s treatment history, drug addiction and whether they are homeless when seeking a conservatorship but Wiener’s proposal could change that, Garcia told the San Francisco Examiner.

“What we are trying to do, is really trying to tell the story of whoever we are serving that it is a long term issue that we’ve been contending with,” Garcia said.

Garcia said that the terms of conservatorships depend on the individual, but can include a locked psychiatric facility.

Wiener acknowledged there are civil liberty concerns but said the existing checks and balances, which include judicial oversight, will remain in place while he expands the parameters by which a judge may grant a city’s conservatorship request.

Wiener said that it would apply to “perhaps one percent of our homeless population.”

Wiener said that there are cases where The City legally holds someone for 72-hours or 14-days when exhibiting signs of mental illness, but by the time they are before a judge they have sobered up and no longer appear unfit to care for themselves. They then go out to the streets and fall prey to the same behaviors that caused their mental illness, creating a cycle Wiener hopes to break.

“You have individuals who through a pattern have shown that they are not capable of caring for themselves even though at a given moment in time they might be lucid,” Wiener said.

Details of the proposal remain the subject of negotiation and civil liberty groups and homeless advocates are withholding judgement until they see the final language. Wiener is expected to introduce a more detailed bill within 30 to 60 days.

“We don’t have a position on the bill at the moment,” said Brady Hirsch, spokesperson for the ACLU of Northern California.

“What we can say is what we see on the streets is the results of $40 million in direct San Francisco behavioral health cuts between 2007 and 2012,” said Jennifer Friedenbach, the executive director of Coalition on Homelessness. “A serious effort is needed to address the mental health crisis we face that goes hundreds of steps beyond a short hospital stay. We welcome a conversation that puts mental health consumers themselves at the forefront of the debate.”

Public Defender Jeff Adachi, who represents those who The City seeks to put under a conservatorship, said Monday that “we cautiously support this legislation as one vehicle to alleviate the misery caused by homelessness coupled with chronic mental illness and addiction.”

“However, we will be watching closely to ensure this proposed change does not come at the expense of our clients’ civil liberties,” Adachi said. “It’s important to remember that mental illness isn’t fixed with a Band-Aid, so any legislation must include housing and long term maintenance of care and support.”

Board of Supervisors President London Breed, who supports Wiener’s bill, also announced Monday she plans to introduce legislation Tuesday to have the city attorney, not the district attorney, represent The City’s non-criminal mental health conservatorship cases. “These cases should not be treated as a crime but as a civil matter. The same way we treat child and family law in The City,” Breed said.

Wiener said the bill would need to be approved by the senate by May to have it on track to reach the governor’s desk by Sept. 1. If it passes, it will take effect in January 2019.

Full Article & Source:
SF officials support expansion of conservatorships to address homelessness, drug addiction

Diamond man to stand trial on seven felony counts

A rural Diamond man waived preliminary hearings Wednesday on seven felony counts he is facing in Jasper County Circuit Court, including financial exploitation of an elderly man.

Associate Judge Joe Hensley ordered Travis C. Perry, 45, bound over for trial on two counts of forgery, two counts of stealing, and single counts of financial exploitation of an elderly person, trafficking in stolen identities and receiving stolen property. The judge set Perry's initial appearance in a trial division on six of the counts for Feb. 20 and his initial appearance on the seventh count, one of the stealing charges, for Feb. 21.

The exploitation and receiving stolen property charges and one of the forgery counts stem from a March 3, 2016, sale of a skid steer loader to a 75-year-old man for $1,500 cash and a used pickup truck valued at $1,500. According to a probable-cause affidavit filed by a Jasper County Sheriff's Department investigator, the skid steer loader, which had its factory-installed VIN plate removed, turned out to have been reported stolen in Oklahoma in 2003.

A second case involving the other forgery charge, one of the stealing charges and the stolen identities count was filed against him in November after an investigation by the Joplin Police Department of an attempt to cash a forged check for $261 on July 20 at a drive-up window of Arvest Bank on East 32nd Street in Joplin. The check was made payable to a Scott Freeman and the defendant allegedly presented a Missouri identification card for Freeman in an effort to get the check cashed.

A probable-cause affidavit states that when a bank teller became suspicious, Perry instructed the woman driving the car he was in to drive off.

The second stealing charge involves a refrigerated trailer that he allegedly stole and hauled to Oklahoma for resale in May, using a truck rig that he borrowed from another man. The scheme fell apart when the prospective buyer discovered the trailer was stolen. He was charged with that offense in October after an investigation by the Jasper County Sheriff's Department.

Full Article & Source: 
Diamond man to stand trial on seven felony counts

Indiana breaking ground with online guardianship registry

Porter County Superior Court Magistrate Mary DeBoer

An elderly person suddenly attempting to withdraw a large sum of money and close out a savings or checking account would likely send bank officials scrambling to make sure nothing was amiss.

Part of that inquiry is now no farther away than the nearest computer, the foresight of a few individuals statewide, including Lake County Superior Court Judge Diane Kavadias Schneider.

Schneider was instrumental in helping Indiana become the first, and perhaps only, state in the nation to implement an online statewide guardianship registry.

"There's a lot of positive benefits for something like this," she said.

Guardians are appointed by courts to assist individuals with cognitive disabilities, who are unable to manage their personal and/or financial affairs, said Porter County Superior Court Magistrate Mary DeBoer.

"These protected persons are vulnerable to physical and financial exploitation, so it is particularly important to protect these protected persons and their assets from harm," she said.

The benefits of the registry (public.courts.in.gov/GRP/) are twofold, DeBoer said. It both helps the courts monitor the cases and grants limited public access to further help protect those in the care of guardians.

The public online registry provides the names of the protected person and their appointed guardian, the protected person's year of birth, whether the case is active or expired, the date the letters of guardianship were issued, the county issuing the guardianship and the case number, according to the state's guardianship website.

Easing the maintenance of guardianship cases

There are 56 of the state's 92 counties taking part in the voluntary registry, said Erica Costello, staff attorney at the Adult Guardianship Office at the Indiana Office of Court Services.

Schneider said the idea of the registry came up several years ago among herself and the other members of the Indiana Adult Guardianship State Task Force.

It was clear the courts did not have the resources to stay current with each guardianship case, she said.

DeBoer said she and Porter County Magistrate Katherine Forbes are responsible for overseeing about 1,800 guardianship cases, in addition to handling all the county's divorce and estate/trust cases.

Maintenance of the guardianship cases includes making sure the initial inventory of relevant details is filed within the first 90 days, followed by an accounting of financial issues every two years thereafter, she said.

"The court reviews these filings to ascertain the assets of the protected person at the beginning of the guardianship, and to ensure the guardian is not squandering the protected person's funds but is using the funds appropriately," DeBoer said.

LaPorte County does not take part in the online registry, having just got on board this past summer with electronic court filings, said Amber Poff, executive director and staff attorney for Indiana Guardianship Services.

Her agency is among several groups across the state that provide volunteer guardians where needed, she said.

Public access limited, but helpful

The creation of the statewide registry began in earnest in January 2013 when Schneider and others were provided with grant money for its development, according to a state fact sheet. The system was tested with a few small counties the following year and became available to all thereafter.

Lake County joined the registry on Jan. 1, 2016, and was followed a year later by Porter County. Both counties report adding new cases as they are filed and doing the best they can to get older, existing cases into the system.

DeBoer logged into the system from her office on the third floor of the courthouse in Valparaiso and showed how she is notified when maintenance is required on a case.

The guardians are supposed to keep up with reports and other filings, but life becomes busy, and it is easy for them to forget about the deadlines, she said. Most of the missed deadlines are simple oversights, she added.

The public portion of the registry offers access to less information, but enough to be helpful to banks, hospitals, police and others, said Kathryn Dolan, chief public information officer with the Indiana Supreme Court.

She knew of no other state with a statewide guardianship registry.

Public access to the registry is helpful in all sorts of situations, such as police coming across someone wandering the streets who appears to be in need, Schneider said. Police could search a name and see if there is someone appointed to handle the person's needs.

The registry also helps the courts keep track of statistics related to their guardianship cases, DeBoer said.

The tool comes just in time. DeBoer predicts the number of guardianship cases will steadily increase as baby boomers age.

Full Article & Source:
Indiana breaking ground with online guardianship registry

Elder abuse takes focus at CLC listening session

Sen. Karin Housley, associate director at Minnesota Elder Justice Center Amanda Vickstrom and Sen. Carrie Ruud

Central Lakes College hosted a session Wednesday regarding aging and elder care in central Minnesota—a subject that's been gaining traction as more of the population moves into their twilight years.

The session was headlined by state Sens. Carrie Ruud, R-Breezy Point, and Karin Housley, R-St. Mary's Point.

"We want to do the best job we can for our senior citizens. Senate District 10 includes Aitkin County, and Aitkin County has the highest median age of any county in the state of Minnesota," Ruud said. "So that we know that we have this great tsunami coming and I'm part of it."

Housley, the chair of the Senate Aging and Long-Term Care Policy Committee, said the session represented a gathering of various state officials, experts and advocates that wouldn't have have happened just a few years ago. Now that aging—plus all the issues associated with elder care—are becoming a focal point, she said it was encouraging to see this level of cooperation.

"Just to have all these people at the same table and those two all in the same room, I can tell you a year ago not everyone was working together or talking together. I think families' voices weren't being heard," Housley said. "Now everybody is in the same place wanting the same thing, which we all want for our loved ones."

Sen. Justin Eichhorn, R-Grand Rapids, joined Housley and Ruud as officials of the state. Alongside them, Amanda Vickstrom, associate director at Minnesota Elder Justice Center; Kari Thurlow, senior vice president for advocacy at LeadingAge Minnesota; Toby Pearson, vice president of Care Providers of Minnesota; Kris Sundberg, president of Elder Voice Family Advocates and Jean Peters, vice president of Elder Voice Family Advocates, each contributed to the discussion—a commentary ranging from expert legal advice, to poignant and sometimes painful personal experiences.

While the event was billed as a listening session on aging, most of the topics touched upon could be broken down into elder care and specifically elder abuse. The senators listened while attendees from the area explored issues of caregiver pay and the importance of clearly designating which family members have authority over their parents' care.

Beyond that, the majority of the session pertained to elderly abuse in care facilities—abuse that takes form in neglect, invasion of privacy, isolative behavior, financial exploitation or outright physical harm, among others. Participants questioned how such behavior could be curtailed and punished. Likewise, in terms of protecting older loved ones, the discussion explored how much was in the hands of families or whether that was in the domain of lawmakers like Housley and Ruud.

A member of the audience expounded on a situation in which her mother was placed in a group home and suspected abuse was taking place. When the family took steps to monitor the situation with a hidden camera, the care facility retaliated by cutting off her mother's internet connection and demanding the camera be removed. The audience member added subsequent care negligence may have contributed to the loss of her mother's legs.

Vickstrom said this case is a cut-and-dry example of criminal elder abuse and indicative of the kind of pushback some caregivers are willing to undertake to protect their positions of power. While often regarded as a "last resort," cameras are a vital means to protect the rights of people who otherwise lack the wherewithal. Minnesota law dictates the hidden surveillance is legal, so long as at least one person present is aware of said surveillance—although, Vickstrom added, it can be difficult to enforce that right.

"There are facilities, right now ... in the state of Minnesota that aren't allowing cameras, they're removing them from the rooms," Vickstrom said, who noted often it requires lawsuits to enforce laws on the matter, in the absence of tighter legal guidelines from the state Legislature. "There are issues to work through, but a lot of that work has been done. I think it's critical for victims and residents to have that right. As a preventative measure, we want people to be able to use that."

Beyond catching elder abuse, Peters said there is also a problem of punishment, citing a personal example when her mother experienced constant neglect and outright abuse within three days of being placed in a care facility. Although she was able to provide substantive proof of abuse, agencies fined the facility zero dollars for the abuse—owners of ice houses would be fined $175 for not removing their rigs from the lake by Feb. 13, she added as a point of comparison.

Her colleague, Sundberg, said there will be little incentive to make systematic improvements to elder care in Minnesota and abroad.

"Right now, there are seldom any penalties. And, if there is, the fine is so insignificant to a lot of these places," Sundberg said. "What we need to do is take a look at the fine structure and make them meaningful. They will straighten out when there are meaningful fines imposed on them. It needs to be regulated, you need that oversight and very little of that is happening right now."

Full Article & Source:
Elder abuse takes focus at CLC listening session

Business owner guilty of financial exploitation

The owner of the Budget Home Repair business was found guilty Wednesday of financial exploitation of the elderly.

Michael Anthony “Tony” Stewart, 44, opted for a two-day bench trial instead of a jury trial, and on Wednesday afternoon he was found guilty of felony financial exploitation of the elderly. His victim was an 86-year-old woman who had a flooded basement.

He charged the woman $5,000 for pumping water out of the basement. Then he turned around and hired someone to do the half-day’s work for $200, said Ron Holliday, the assistant Buchanan County prosecutor.

Scott Dougherty, owner of St. Joseph Waterproofing, was called as an expert witness by Holliday. He testified pumping water out of the basement would have been a mere $200 job.

The crime was the next day, Stewart came back and told the woman she had mold in her basement and said it would cost $20,000 to remove it, Holliday said.

The evidence shows the woman didn’t have that kind of money and the defendant misrepresented the problem, saying she’d have to tear the house down if she didn’t take care of it, said Circuit Judge Patrick Robb. It’s a material fact that the defendant also misrepresented to another witness, and this wasn’t disputed in the testimony, Robb said.

The judge proceeded to find Stewart guilty as charged.

Stewart remains free on a $25,000 bond. The judge ordered a background investigation and set sentencing for 11 a.m. Friday, March 23.

Full Article & Source: 
Business owner guilty of financial exploitation

Editorials Editorial: NM lawmakers have just days to wrap up 2018’s work

The legislative session ends in just four short days.

That means lawmakers will be working late into the night — and likely into the wee hours of the morning — to get important legislation across the finish line and onto the governor’s desk.

Those that should be passed

GUARDIANSHIP:

Lawmakers need to adopt legislation to address the massive abuses of our state’s closed legal guardianship/conservator system. Senate Bill 19 – which cleared the Senate by a unanimous vote last week – has four key reforms that must be implemented this session. Those key reforms include: opening court hearings that are now closed, giving family members more access to guardianship records, ensuring visitation would not be as easily thwarted by commercial guardians, and requiring non-family conservators to post sufficient bonds in case financial impropriety occurs.

While there are problems with other aspects of the bill, which we hope the House addresses, it’s crucial these four elements be enacted this session to protect New Mexico’s most vulnerable citizens, especially after the recent revelations that millions of dollars have been embezzled from guardian or conservator clients.

By law, the Legislature must wrap up its work by noon Thursday. There’s a great deal riding on their success. ...

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Editorial: NM lawmakers have just days to wrap up 2018’s work

Police: Judge among six people arrested in prostitution operation

COLLIER COUNTY, Fla. - A Lee County Circuit Judge was among six people arrested in a prostitution operation, according to the Naples Police Department.

The following individuals were arrested in the operation (from top left to right):

• Howard Cornibe, 70, of Canada, arrested for Solicitation of Prostitution.
• Peter W. Bradshaw, 70, of Canada, arrested for Solicitation of Prostitution.
• Patrick J. Boll, 53, of New Jersey, arrested for Solicitation of Prostitution.
• William B. Darmoh III, 29, of Naples, arrested for Solicitation of Prostitution.
• Richard A.Cecil, 47, of Fort Myers, arrested for Solicitation of Prostitution.
• Jay B. Rosman, 64, of Bonita Springs, arrested for Solicitation of Prostitution and Resisting Arrest without Violence.

All six men made contact with an undercover officer via/phone text to meet at a hotel in Naples. Upon arrival, the deputy negotiated the performance of a sexual act for money, the Naples Police Department said in a report.

Judge Rosman served as Chief Judge of the Twentieth Judicial Circuit after his election in 2011 to June, 2015, according to the 20th Judicial Circuit Court website.

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Police: Judge among six people arrested in prostitution operation

Aging Well: It is important to update your estate plan as you age

Sean D. Curran

Failing to plan is planning to fail.

Failing to plan is planning to fail. There are numerous considerations that confront us at each stage of our lives that make it important to update your estate plan as you age.

A young family typically has a small net worth and is more focused on getting enough life insurance to sustain their children in the event of an untimely death, naming a guardian for their children and having a will that can create a trust to hold the monies and instruct how the monies should be spent for their underage children.

It is important that the monies are kept separate from the guardian's accounts so that they do not become commingled and exposed to the guardian's own personal adverse circumstances. You should always name the children as the beneficiary of a life insurance policy, retirement account or annuity, and never the guardian directly.

A mature client, between the ages of 40 and 60, is typically focused on how assets are passed onto their beneficiaries, those who receive some part of their estate. Typically, a will is effective in handling the distributions, but there are individual considerations that may require a higher level of planning. These include estate and inheritance tax issues, beneficiaries with disabilities, beneficiaries with unstable marriages, beneficiaries with addictions, beneficiaries who can't manage money or have creditors and their own second or third marriage with children from previous marriages.

Children from previous marriages involves issues of making sure assets are available to the surviving stepparent spouse for the remainder of their lives or until the stepparent marries, but ultimately the assets should go to the children of the deceased spouse.

Many times, assets are left to the surviving stepparent spouse under a verbal agreement to leave the remainder to the decedent spouse's children. This simple strategy rarely works because of the typically weak relationship between stepchild and stepparent. This leads to the stepparent legally leaving the monies to their blood relatives and not to the individuals who are supposed to get it. This happens frequently with respect to individual retirement accounts.

All of these issues can be managed with trusts. Trusts are agreements between three parties: grantors, trustees and beneficiaries. The grantors are the creators of the trust and owners of the assets going into the trust. The trustee manages the trust assets according the specific trust instructions.

Trustees often are family members and not expensive trust companies. The beneficiaries are the individuals who receive the trust assets at specific times. Trusts are flexible and highly customizable.

The senior client, typically between the ages of 60 and 80, still is concerned with all of the issues of the mature client but also should be concerned with their post-retirement income and financial resources supporting their cost of living for the remainder of their lives.

Questions about Social Security and Medicare are at the forefront of concerns. A good plan should involve a discussion of the pressing issue of how to prepare for the potential of long-term care expenses.

The statistics are staggering. It is estimated that 79 percent of women and 58 percent of men over the age of 65 will need some form of long-term care, which may involve home health care, assisted living or skilled nursing, ranging in cost from several hundred dollars to $12,000 per month. Topics include long-term care insurance, veterans benefits and Medicaid asset-protection planning.

While important at all stages, it is extremely important in the senior and elder, more than 80-years-old, stages of life to have a well-drafted financial power of attorney and health care power of attorney, documents that authorize others to act on your behalf, drafted by an elder law attorney.

In the event that an individual becomes incapacitated and cannot take care of themselves, a good financial power of attorney can save thousands of dollars and provide a continuous management of the individual's affairs. If there is no power of attorney or even a deficient one, family members must obtain an expensive guardianship order from the court, which involves medically proving incapacity. That can sometimes be disputed between family members and can take between four and six weeks to obtain.

If this issue is revealed at the time the individual needs to go into the nursing home, and the individual has too many assets to qualify for Medicaid, the delay can easily cost well in excess of $12,000 because they must pay for private nursing care during the delay in qualification. In almost all circumstances, assets can be preserved even if the individual is already in the nursing home, whether married or single, despite the common perception that the only option is to pay for nursing care until your assets are reduced to a level of financial qualification.

It is important that the power-of-attorney document gives the authority to the agent to protect assets in the Medicaid qualification process, which may involve several different legal rights.

Sean D. Curran, Curran Estate Law, focuses his practice, 222 N. Kenhorst Blvd., exclusively on estate and elder law, at www.curraneelaw.com.

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Aging Well: It is important to update your estate plan as you age

Hidden camera investigation: Nursing home abuse, violence (Marketplace)

Source:
Hidden camera investigation: Nursing home abuse, violence (Marketplace)

United States: Oversedation in Nursing Homes

Nursing homes across the United States routinely give antipsychotic drugs to residents with dementia to control their behavior, despite regulatory prohibitions on this misuse of drugs as “chemical restraints.” This abusive practice remains widespread even though the use of antipsychotics is associated with a nearly doubled risk of death in older people with dementia.

About every week in US nursing facilities, more than 179,000 people, mostly older and living with dementia, are given antipsychotic drugs without a diagnosis for which their use is approved. Often, nursing facilities use these drugs without obtaining or even seeking informed consent. Using antipsychotic medications as a “chemical restraint”—for the convenience of staff or to discipline residents— violates federal regulations and may amount to cruel, inhuman, or degrading treatment under international human rights law.

Source:
United States: Oversedation in Nursing Homes

Do Florida nursing home patients need a bill of rights?

Click to Watch Video

A week before Valentine’s Day last year, an Orlando nursing home sent nine of its residents on an outing to a local super store with a single assistant to supervise. All the residents needed round-the-clock care, five were in wheelchairs and three used walkers.

One elderly resident desperately needed to use the bathroom but couldn’t find the assistant, so he tried to go on his own — ultimately losing his balance and control of his bowels, falling in his own feces and breaking his hip. A stranger had to help him while the store paged the nursing home staffer, who then neglected the other eight residents to tend to the emergency.

For that and other actions posing “immediate jeopardy” to residents — including failing to provide kidney dialysis to another resident — federal regulators fined the nursing home, Avante at Orlando on North Semoran Boulevard, nearly $1 million in 2017. They cited 20 health violations and placed it on a national watch list for its failure to correct repeated problems.

But advocates for residents say it’s not enough.

Because of facilities like Avante with track records of putting their patients in danger, some want to change the Florida Constitution, adding a nursing home and assisted-living facility residents’ bill of rights. Doing so, they say, would not only add more protections, but it also would shield residents from state legislators and presidential administrations that might roll back existing regulations under pressure from the nursing home industry.

Nursing home inspection reports leave gaps »

“The public is completely in the dark about what happens in some of these facilities,” said Brian Lee, a former nursing-home watchdog for the state who now heads the national advocacy group Families for Better Care. “Even the tragedy of 12 nursing home residents dying from neglect after Hurricane Irma — deaths that were categorized as homicides — has not been enough to shame the industry into making changes.”

The Rehabilitation Center at Hollywood Hills in South Florida was evacuated Sept. 13 after power was knocked out by the storm and temperatures inside soared. A dozen elderly residents ultimately succumbed to heat exposure; one had a body temperature of 109.9 degrees.

That facility is still fighting to keep its license.

The tragedy led Florida Gov. Rick Scott to call for all nursing homes and assisted-living facilities in the state to install sufficient backup generators and have 96 hours of fuel on site to keep temperatures safe in case of power failure — a proposal that prompted four months of lawsuits and negotiations by the industry before reaching an agreement this month.

There’s nothing in this proposal that would have prevented what happened in Hollywood Hills. They’re just capitalizing on a tragedy. — Kristen Knapp, spokeswoman for the Florida Health Care Association, an industry group

It also prompted the governor to ask the state’s Constitution Revision Commission — which examines the Florida Constitution every 20 years for possible changes — to look at whether there are ways that the document could offer better protection for residents of long-term care facilities.

 

The result is Proposal 88, which is now being aired in public hearings throughout the state. If approved by the commission, it would go before voters in November.

The proposal establishes the right for residents to be treated “courteously, fairly and with the fullest measure of dignity,” given “adequate and appropriate health care” and live in “a safe, clean, comfortable and homelike environment” with “reasonable precautions” against natural disasters and extreme climatic conditions.

It also says residents have the right to access courts, have speedy trials and sue without limitations for damages, that they can’t be asked to waive those rights, and that the facilities must carry liability insurance sufficient to ensure that residents and their families are “justly compensated.”

Avante did not respond to several requests for comment on Proposal 88, nor did it respond to the federal fines and citations. But the industry as a whole is adamantly opposed to any such language in the state’s Constitution — even though some of the rights are already part of laws previously enacted by the Florida Legislature and the proposal doesn’t spell out the consequences for nursing homes that don’t comply.

“We don’t believe it’s really focused on residents’ rights. We think it’s focused on expanding lawsuits,” said Kristen Knapp, spokeswoman for the Florida Health Care Association, which represents the state’s nursing home industry. “There’s nothing in this proposal that would have prevented what happened in Hollywood Hills. They’re just capitalizing on a tragedy — on an egregious case — for which there are criminal charges. There are already 32 lawsuits filed against that building, so clearly there is already an ability to sue.”

Nursing home calls to Scott after Irma might have fostered false hope »

The proposal was filed by Constitution Revision Commission member Brecht Heuchan, one of the governor’s appointees to the commission. Heuchan, a lobbyist who owns a political data company, has come under fire because of his clients — including the Florida Justice Association, a group that represents trial lawyers, and a law firm that has sued nursing homes. He dismisses those criticisms.

“In this state, someone living outside a nursing home has more rights than someone living inside of one,” he said. “All I’m doing is trying to restore the balance of power for these facilities that care for 70,000 Floridians who indisputably are the most frail, most vulnerable, possibly the biggest targets for exploitation.”

State law, for instance, requires the facilities to carry liability insurance or be self-insured, but not at specific levels, and critics have accused the facilities of routinely attempting to get residents to sign away their rights.

Knapp counters that nursing homes can no longer find insurers to write the liability policies after most carriers pulled out of the market.

Many now self-insure; Lee points to evidence that facilities should have the means to do so.

Florida governor's race 2018: Which candidate's priorities mirror yours? »

“Record-setting bed valuations, billions in guaranteed revenues and robust profit margins have pushed the senior care market to become one of the fastest growing, most highly profitable health care sectors,” he said.

At the same time, the Trump administration has pushed to soften fines against the industry — making the nearly $1 million penalty against Avante likely a thing of the past. New guidelines even discourage regulators from levying fines in certain situations.

And the state began redacting inspection reports of the facilities last year so severely that it made them virtually unintelligible to the public.

“This underscores why Proposal 88 is needed — to ensure residents’ rights and protections are not watered down or ridden roughshod over by politicians,” Lee said.

Full Article & Source:
Do Florida nursing home patients need a bill of rights?