Developments in Guardianship Law and Increased Difficulty Establishing Guardianships

The last few years saw substantial changes and updates in the probate and estates realm, not the least of which was replacement of the prior Texas Probate Code with the Texas Estates Code.

The last few years saw substantial changes and updates in the probate and estates realm, not the least of which was replacement of the prior Texas Probate Code with the Texas Estates Code. In guardianships, the most important changes directed an exploration of “less restrictive alternatives” to guardianship, making proving the necessity for a guardianship more difficult. Additionally, another hour was added to the required learning for an attorney to qualify to serve in an ad litem capacity in the probate courts, as well as a new requirement that attorneys representing applicants for guardianship also obtain the four-hour training previously only required of those wishing to serve in an ad litem capacity. These requirements have resulted in the courts stressing the importance of consideration of less restrictive alternatives to guardianship of the person and/or estate.

Guardianships are court-supervised, and by necessity strip the incapacitated person of some or many rights possessed by most adults, such as the right to vote and decision whether to marry. Guardianships of minors and adults arise out of legal incapacity (such as birth defects, accidents resulting in damaged mental function, and age-related mental decline). Out of this rather significant legal power and duty to made decisions for another combined with stripping away of rights of another arose the focus on less restrictive alternatives to guardianship, and the resultant reluctance of the courts to establish guardianships without sufficient evidence that less restrictive alternatives are inadequate. (See Texas Estates Code §1001.001.)

The definition of “Alternatives to Guardianship” (Texas Estates Code §1002.0015) offers a non-exclusive list of less restrictive alternatives, including medical and durable powers of attorney, representative payees, convenience accounts, various trusts, and person-centered decision-making. Other options are included in the list of “Supports and Services,” a comprehensive but not exhaustive, suggestion of supports and services available in the appendix of the often-cited Tarrant County Ad Litem Manual, about which all attorneys handling guardianships in the state of Texas should know. (Some examples include Adult Protective Services, Area Agencies on Aging, food banks, DADS (Texas Department of Aging and Disability Services), MHMR centers, support groups for particular diseases and conditions, religiously affiliated charities, Meals on Wheels, and behavioral support services.)

The Texas Estates Code Ch. 1357, Texas Health and Safety Code and Texas Family Code all contain provisions regarding surrogate decision-making (SDM) for both minors and adults, and the Estates Code addresses supported decision-making agreements, which are somewhat similar to powers of attorney, but consist of an agreement between 1) an adult with disabilities regarding activities of daily living but is not legally incapacitated and 2) a “supporter” who a) is willing to assist in understanding the options, responsibilities and consequences of life decisions without actually making those decisions for the disabled adult and without impeding the disabled adult’s self-determination; b) obtains relevant information necessary for the disabled adult; c) understands the information gathered; and d) communicates the disabled adult’s decisions to appropriate persons. A permissive form is supplied in the statute.

Managing conservatorships (covered in the Family Code) are common in divorce proceedings, and are good substitutes for a guardianship of the person of a minor, but only when there is no issue of assets or an estate of the minor, as the Family Code provides no monitoring mechanism for property management.

Conversely, with estates and assets of an incapacitated person, living trusts (revocable inter vivos trusts), guardianship management trusts and special needs trusts are excellent tools that allow a trustee more freedom to act than a guardian of the estate would enjoy, provided the trust was drafted by a knowledgeable attorney and is coordinated with other appropriate estate planning tools.

Powers of attorney are popular alternatives to guardianship, but only if the person had legal capacity to grant the powers when executed; beware however, banks, bankers, title companies, stockbrokers and others are not always willing or prepared to accept powers ofaAttorney, despite the legality of the documents. Another drawback is the lack of an effective monitoring or checking of the agent’s activities, despite duties to inform and account to the principal of actions taken and to maintain complete records of actions taken. (See Texas Estates Code §751.101).

With longer life spans and age-related deterioration of mental faculties on the rise, another possibility is community administration, which allows for one spouse to act in the capacity of “community administrator” to manage, control and dispose of the entire community estate without the necessity of a guardianship upon findings by the Probate Court that the other spouse is incapacitated, it is in the best interest of the incapacitated spouse to have the other spouse manage the community property, and the administrator spouse would not otherwise be disqualified to be appointed (same qualifications of a guardian of the estate). Texas Estates Code Section 1353.002 provides that the administrator may be required to return an inventory and accountings, and a guardian of the estate may retain management rights over some specified varieties of real and personal property. The community administrator is considered in the context of a guardianship application and is not itself a separate freestanding application.

There are many statutory and nonstatutory alternatives that qualify as less restrictive than guardianship and it is incumbent upon attorneys in the probate arena to be aware of and conversant with the new requirements and the fact that the courts are now requiring that less restrictive alternatives be considered and ruled out as not adequate prior to establishing a guardianship.

Elizabeth P. Ardanowski practices state and federal litigation, as well as probate and estate planning and litigation, and has been handling guardianships (both simple and contested) on both sides of the docket for well over a decade. She has a Juris Doctor from Baylor University School of Law and a Bachelor of Journalism in Public Relations from the University of Texas at Austin, and she is an adjunct professor of media law and ethics at Texas Wesleyan University.

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Developments in Guardianship Law and Increased Difficulty Establishing Guardianships

Abusive probate guardianship

The award-winning 2017 short documentary “Edith+Eddie” by Kartemquin Films and directed by Laura Checkoway follows the story of America’s oldest interracial couple whose love story is interrupted by a family feud and an administrative probate hearing. The movie highlights the loss of all human and constitutional rights as well as loss of all property rights once Edith is placed into an involuntary guardianship by a probate judge.

What can happen if you fail to settle a family dispute in a guardianship hearing in St. Louis and St. Louis County?

Once you take the matter to a probate judge, you risk losing your loved one to the system. The probate judge will appoint a third-party guardian, regardless of whether advance directives (durable power of attorneys, health care proxies, wills, trusts, etc.) are in place or not. The elderly ward is punished because his/her family “can’t get along.” Your loved one will lose all constitutional and fundamental rights (right to vote and the right to marry) as well as control of all property, life savings, personal treasures.

And that is not the worst of it: You will lose all input into your loved one’s care and the right to know of his/her medical condition. You will become powerless to help your loved one if the guardian decides to send him/her to a nursing home. Remember who is going to profit from the guardianship/conservatorship of your loved one: the guardian, the other fiduciaries, and your attorney.

The issue is not whether the present system is legal. The issue is whether involuntary guardianships are consistent with basic principles of law, democracy, civil rights, human rights, and the constitution. The present system of involuntary guardianship violates all these basic principles. It is a danger to everyone whether or not they realize it.

M. Anthony
St. Louis

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Abusive probate guardianship

The Mentally Impaired Client: Who Decides Trial Strategy?

 

On Jan. 17, 2018, the U.S. Supreme Court heard oral argument on the capital murder conviction of Robert McCoy, who was sentenced to death by a Louisiana court after his own lawyer told the jury he was guilty of a triple homicide. According to The New York Times, defense counsel Larry English made a tactical decision, over his client’s objection, to tell the jury that his client had committed the homicides in order to maximize his client’s chances at avoiding the death penalty. Adam Liptak, “Supreme Court Skeptical of Lawyer’s Conduct in Death Penalty Case,” N.Y. Times (Jan. 17, 2018). English reasoned that, given the overwhelming mountain of evidence against McCoy, his best bet was to concede guilt and focus on mitigation at the sentencing phase of trial.

The lawyer’s ploy didn’t work, as the jury convicted McCoy and imposed the death sentence. In addition, McCoy explicitly objected to the strategy and insisted on maintaining his innocence, arguing that he had an alibi. The question in the Supreme Court is whether the lawyer, in disregarding his client’s explicit instructions to protest his innocence, arrogated to himself a fundamental decision that belonged to the client rather than the lawyer, and thereby violated the client’s Sixth Amendment right to assistance of counsel. A decision is expected before the Court’s June recess.

This was not the first time the High Court has grappled with this issue. In a 2004 case, the Supreme Court considered whether counsel must obtain explicit consent from the client before conceding guilt in a capital case. Florida v. Nixon, 543 U.S. 175 (2004). Rejecting the need for explicit consent, the court held in Florida v. Nixon that, “[w]hen counsel informs the defendant of the strategy counsel believes to be in the defendant’s best interest and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket rule demanding the defendant’s explicit consent.” Nixon, 543 U.S. at 192. Rather, the court held that conceding guilt to avoid the imposition of the death penalty may be a reasonable trial strategy, and is permissible when the defendant neither consents nor objects to the strategy. Of course, there is a difference between a client who stands mute and one who vociferously objects, as was the case in McCoy.

Longtime followers of criminal defense and legal ethics will recall that a similar controversy arose during the prosecution of convicted Unabomber Theodore Kaczynski in 1998, who unsuccessfully tried to dismiss his court-appointed lawyers because they wanted to plead insanity in order to avoid the death penalty. Kaczynski’s lawyers used a ruse to trick him into agreeing to a court-appointed psychiatric examination so that they could portray him as mentally ill, a defense to which their client objected, as he felt he wanted his political message, however twisted, to reach the public. Lerman and Schrag, Ethical Problems in the Practice of Law (3d Ed. 2012) at 351-52; U.S. v. Kaczynski, 239 F.3d 1108 (9th Cir. 2001). Following a 1998 plea bargain, Kaczynski was sentenced to life in prison. The lawyers’ ruse prompted a debate about whether defense lawyers may ethically deceive their client into agreeing to a forensic examination that is contrary to the client’s expressed wishes.

While Kaczynski and McCoy represent examples of lawyers’ conflicts with high-profile clients, lawyers for less-famous clients may also face gut-wrenching decisions in interacting with their clients. When do lawyers cross the line between acting as trusted advisors on the one hand and wresting control of the case from the client on the other?

The allocation of authority between lawyer and client is set forth in Rule 1.2 of the American Bar Association Model Rules of Professional Conduct, which provides that the most basic, fundamental decisions about a case must be made by the client:

Subject to paragraph (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

ABA Model Rule 1.2.

The New York version of RPC 1.2 is virtually identical.

But what if the client is mentally impaired? This issue is addressed in ABA Model Rule 1.14, titled, “Client With Diminished Capacity,” which provides that a lawyer should attempt to maintain an ordinary relationship with the client if possible, and to seek appointment of a guardian if unable to do so. According to RPC 1.14:

When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

RPC 1.14(a).

However, when the lawyer believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken, or cannot act adequately in the client’s own interest, the rule provides that “the lawyer may take reasonably necessary action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases seeking the appointment of a guardian ad litem, conservator or guardian.” RPC 1.14(b). The commentary to RPC 1.14 provides that while a “severely incapacitated person” may not be able to make decisions involving her legal affairs, “a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s well-being.” RPC 1.14, Cmt [1].

For example, children may have the ability to make informed decisions about their cases, and it is not uncommon for lawyers in custody disputes or other family law cases to take directions from underage or incapacitated clients. Even individuals who have been adjudicated incapacitated and have guardians appointed are permitted by statute to bring applications to discharge or modify their guardianships. See N.Y. Mental Hygiene Law 81.36(b). In criminal cases, it is not uncommon for a judge to make a competency determination at the onset of the case in order to ascertain whether or not the defendant is sufficiently able to understand the nature of the proceedings and to participate meaningfully in his defense.

Lawyers for persons who suffer from mental illnesses do not assume that their clients cannot make reasoned decisions. To the contrary, lawyers for the mentally ill generally accede to their clients’ decision-making prerogative and rarely take protective action on a client’s behalf against the client’s expressed wishes. The courts have recognized this principle. As the Second Circuit has noted, “Diminished capacity alone cannot serve to undermine” an individual’s due process protections. Project Release v. Prevost, 722 F.2d 960, 971 (2d Cir. 1983). Likewise, even psychiatrists cannot assume that their patients lack decisional capacity. The fact that a patient receiving mental health treatment may disagree with his psychiatrist’s judgment concerning the treatment “does not make the patient’s decision incompetent.” Rivers v. Katz, 67 N.Y. 2d 485, 495 (1986).

On Jan. 23, 2018, the Second Circuit addressed the allocation of decision-making prerogative between client and lawyer in United States v. Tigano, 2018 U.S. App. LEXIS 1544 (2d Cir., Jan. 23, 2018), in which the court dismissed the defendant’s indictment on drug charges due to excessive trial delays in violation of his Sixth Amendment right to a speedy trial. The Second Circuit attributed the delays, in part, to “needlessly repetitive and dilatory competency examinations,” all of which found Tigano competent, and which were ordered because of “Tigano’s assertion of his speedy trial right and his refusal to accept a plea.” 2018 U.S. App. LEXIS 1544 at *23, 25. The court noted that this case was “unusual” because, while “Tigano himself made very clear that he desired a speedy trial,” his attorney’s choices did not always reflect Tigano’s desire. 2018 U.S. App. LEXIS 1544 at *37. As the Second Circuit concluded, “Quite simply, the right to a speedy trial belongs to the defendant, not to defendant’s counsel.” 2018 U.S. App. LEXIS 1544 at *37.

So getting back to McCoy, did defense counsel have the right to overrule his client’s decision to protest his innocence and force the district attorney to prove every element of the case beyond a reasonable doubt? While the evidence against McCoy was overwhelming, it does not appear that the trial judge ruled him unfit either for trial or to participate in his own defense. http://www.scotusblog.com/wp-content/uploads/2017/09/16-8255-petition.pdf. As a matter of professional responsibility, it was the client’s decision, not the lawyer’s, whether or not to admit guilt to the jury.

Conclusion

The Rules of Professional Conduct allocate primary decision-making about fundamental strategic issues to the client. While superseding the client’s decision-making with that of the lawyer is permissible for routine tactical matters, that is not the case for fundamental decisions such as whether or not to plead guilty, whether to settle a civil case, whether to go to trial, whether to assert an insanity defense, or whether to concede guilt at trial in the hope of averting greater punishment.

Diane Goldstein Temkin is a principal attorney at Mental Hygiene Legal Service, First Department. Barry R. Temkin is a partner at Mound Cotton Wollan & Greengrass and a member of the New York County Lawyers Association Professional Ethics Committee. The authors thank Alan Vinegrad for reviewing and commenting on an earlier draft of the article.

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The Mentally Impaired Client: Who Decides Trial Strategy?

Sister faces off against sister in allegations that their mother was ripped off

A Metro Detroit woman is under fire, facing felony embezzlement charges. The victim?. A vulnerable, elderly woman. A person she was supposed to love and protect. It’s become a case of sister versus sister, in a fight over right and wrong. What happened to turn siblings into enemies? Any way you look at this story, it it sad. A family has been torn apart - and some believe greed is at the center of it all.

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Sister faces off against sister in allegations that their mother was ripped off

Orange Park man accused of exploiting his mother for over $10,000

Richard Edwin Johnson

ORANGE PARK, Fla. - Clay County detectives said a man stole $10,845 from his elderly mother’s bank account. 

Richard Edwin Johnson, 42, of Orange Park, was arrested Monday and charged with elderly exploitation totally more than $10,000 and passing forged checks. 

According to the arrest affidavit, Johnson altered or forged 36 checks belonging to his elderly and disabled mother whom he provided daily care for. 

The victim told a detective her son and caregiver had taken 36 checks from her, filled them out and cashed them without her consent or knowledge. Investigators noted in their report that on 36 occasions between October of last year and February of this year, checks belonging to Johnson’s mother were being illegally cashed at ACE Check Cashing on Blanding Blvd. and another financial institution that was redacted from the report.  

The manager at ACE Check Cashing manager on Blanding Blvd. told detectives that she remembers Johnson coming in several times to cash checks belonging to his mother. An employee at the other financial institution told detectives she was familiar with the incident and confirmed all 36 checks were cashed in Clay County.

According to investigators, $10,845 was taken from the woman and now she’s unable to pay her home insurance. As a result of not being able to pay, her policy was canceled.

Johnson remains in the Clay County Jail without bond. 

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Orange Park man accused of exploiting his mother for over $10,000

2 Healthcare Workers Charged With Exploitation of the Elderly

Sophia Monae Shepherd and Chiquita Lashae McGee

VERO BEACH, Florida – Two CNA’s working as healthcare workers were arrested Tuesday on charges of Exploitation of the Elderly, Organized Fraud, and Scheme to Defraud a Financial Institution in Vero Beach, according to the Indian River Shores Police Department.

Sophia Monae Shepherd, 30, and Chiquita Lashae McGee, 29, are accused of opening credit cards in their names, but under the victim’s accounts, with an unlimited line of credit.

The Vero Beach healthcare workers proceeded to charge in excess of $400,000.00 for personal items, to include cosmetic dental work, plastic surgery, cruises, expensive jewelry, clothing, an engine for one of their cars, exotic car rental (a Rolls Royce Ghost for 5 days @ $995.00 per day), hotels in various cities in Florida, and to pay a fine in St. Lucie County.

The total amount for all fraud related to this case is at least $543,973.00. They also fraudulently obtained checks from the victims.

“In December 2017, the Indian River Shores Department of Public Safety received correspondence from the State of Florida Department of Health concerning a possible fraud case against two elderly infirmed residents by their home healthcare workers (Certified Nurses Assistants). The names of the victims are being withheld due to medical privacy concerns,” Chief Rich Rosell said in a statement.

“Detective Sergeant Kip Benham, Detective Ken Barrett, and Officer Rodney Grass were assigned to the case and quickly determined there was substance not only to the allegations of fraud, but that the case fit the criteria set forth in the Exploitation of the Elderly in the Florida Statutes,” Rosell added.

The detectives opened the investigation into the case, focusing on Shepherd and McGee, both from Vero Beach, Florida. The two suspects were employed by a reputable home healthcare company to care for two residents of the John’s Island subdivision of Indian River Shores.

Police said that early in the investigation, one of the victims passed away. Their home healthcare company terminated the two suspects.

However, Shepherd and McGee convinced the victims to allow them to open the credit cards in their names with an unlimited line of credit.

On March 13, 2018, Police Officers from the Indian River Shores Department of Public Safety, assisted by deputies from the Indian River Sheriff’s Office, executed search warrants at the suspects 18th Avenue and 8th Manor residences.

Evidence of the crime was processed by the Indian River County Sheriff’s Crime Scene Unit and secured by the Indian River Shores Police.

The suspects were arrested and charged with one count each of Exploitation of the Elderly, Organized Fraud, and Scheme to Defraud a Financial Institution.

Shepherd and McGee are currently in the Indian River County Jail without bail pending their first appearance on Wednesday, March 14, 2018.

DISCLAIMER: Arrests and mugshots were made public by complaint affidavits, arrest affidavits, and police reports. All persons arrested are innocent until proven guilty.

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2 Healthcare Workers Charged With Exploitation of the Elderly

Victory for Probate Court Reform Movement and the Carter Family

When Cardell Carter, daughters Venus Gist and Kimberly Carter decided to defy court order and remove their wife and mother from a Board and Care facility on Valentine’s Day, they had the backing of the Probate Court Reform Movement.

Maxine Ussery, one of the founders of the 78 member organization said, “We were there when the Carter family removed Katherine Carter from the Board and Care facility where she had been housed since December. Carter suffers from dementia and had degraded rapidly. The Carter’s feared for Mrs. Carter’s health while the Court was spending money for inferior care at the Carter’s expense. We were there again when the court ordered the family to court to face sanctions for their actions.”

Members of the Probate Reform Movement, who’d seen their estates decimated before the same judge believe their presence made all the difference in the world.

Ussery’s brother, Ray Willis said “I noticed a visible reaction by the Judge when he saw us sitting there. I told Judge Reardon when he financially destroyed my family he’d see us again, and I believe it was difficult for him to penalize another family in our presence.”

The conservator and court appointed attorney were seeking sanctions against the Carter family for their actions. Despite their efforts, the Carter’s and the Movement prevailed.

Judge Thomas Reardon, ruled in favor of the family, disallowing sanctions or forcing the family to return Mrs. Carter back to the Board and Care. He ruled against placing the family under oath to testify that 24 hour care was in place in the home. Then dismissed the petition for Mrs. Carter’s conservatorship with the admonition that “You’re going to regret my intervention the next time the family disagrees” and ordered limited conservatorship over the Carter estate until court attorney and fees are paid in full.

Judge Reardon also dismissed the petition over Mr. Carter who was placed in conservatorship because he had challenged court fees and decisions. Mr. Carter is able-bodied, mentally and physically, yet the Judge had stripped Mr. Carter of the right to manage his estate.

Tanya Dennis, coordinator for the Probate Court Reform Movement said, “This is why we discourage anyone from entering into probate to settle their estate. Once you enter probate you’re at the mercy of the court and the court is not your friend. A will and trust can prevent entering probate and it is vital that any disagreement between beneficiaries of the estate settle all differences privately.

There is a predatory climate that prevails in Probate Court and that is why we’re petitioning District Attorney Nancy O’Malley to investigate. We also want the Commission on Judicial Performance to audit probate cases since 2007. We believe the Commission will find minority families are being targeted. That’s why we exist, we’re demanding reform, and helping families keep their estates.” For more information regarding the Probate Court Reform Movement call 510-282-8200.

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Victory for Probate Court Reform Movement and the Carter Family

Nevada sets up guardianship abuse hotline

LAS VEGAS (KTNV) - Nevada's highest court established the Guardianship Compliance Office after a years-long Contact 13 Investigation uncovered corruption in the system that is supposed to protect our most vulnerable residents.

The Guardianship Compliance Office now has a toll-free fraud hotline (833) 421-7711 to report concerns about exploitation.

The Nevada Supreme Court issued the following information for more details:

The Nevada Guardianship Compliance Office has established a toll-free guardianship fraud hotline at (833) 421-7711.

The number will connect concerned Nevadan with a team of professionals who will review case files and evaluate the information in the file using investigation techniques and financials tools. The goal of the professionals in the Nevada Guardianship Compliance Office is to help the courts protect Nevada’s vulnerable citizens.

Anyone is encouraged to call the hotline if they suspect someone of misusing a protected person’s finances or guardianship assets.

Detailed information about the Nevada Guardianship Compliance Office can be found online.

Legislation creating the Nevada Guardianship Compliance Office took effect January 1, 2018. The Commission to Study the Administration of Guardianships in Nevada’s Courts proposed seven major reforms, including the Nevada Guardianship Compliance Office, resulting in five bills approved in the Legislature and signed by Governor Brian Sandoval.

Creation of the Nevada Guardianship Compliance Office, a Guardianship Bill of Rights, and mandatory appointment of legal counsel for persons in need of protection were all enacted by legislation.

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Nevada sets up guardianship abuse hotline

Hearing Scheduled For West Ky Judge Charged With Misconduct In Office

A hearing for a west Kentucky judge charged with nine counts of misconduct is scheduled for June.

First District Circuit Court Judge Timothy Langford allegedly requested that inmates from Fulton County Detention Center perform their community service by helping rebuild his church.

Other counts allege that Langford used publicly-owned equipment to aid in the reconstruction of the church, improperly appointed his legal assistant Jeremiah McCarty to administer the ankle monitor program, instructed McCarty to contact defendants to encourage them to perform community service on the reconstruction of the church, signed documents verifying community service work performed by criminal defendants on probation in Langford's court, among others.

Langford denied all allegations in a response to the Kentucky Judicial Conduct Commission.

His hearing on June 19 is at the McCracken County Circuit Courthouse. Langford’s office said he is still presiding over cases.

Here are the documents in the formal proceeding docket entries, including the notice for formal proceedings and charges. 
 
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Hearing Scheduled For West Ky Judge Charged With Misconduct In Office

Family says hidden camera shows nursing home abuse

(WJBK) - A family is making disturbing allegations of elder abuse at a Livonia nursing home.

They say they recorded it on a hidden camera inside their 89-year-old relative's room, showing the proof. After a bowel obstruction surgery, 89-year-old Hussein Younes recovered at Autumnwood in Livonia in April 2015.

"I discovered unspeakable horrors," said his son, Salim Younes.

"We only caught two days of this horror show at Autumnwood Livonia, two days," said attorney Jonathan Marko. "He was there for approximately six months. He went in, in May, until his family saw the video in December and yanked him out as soon as they saw it."

Younes was thrown and slapped, leading to unexplained bruises and cuts. Within weeks, the family knew something was wrong with Dad, so in December they put a hidden camera in the alarm clock.

"When confronted with video evidence that their staff was battering and abusing this man, they refused to take any responsibility," said Marko.

Hussein came to this country from Lebanon in 1995, and is a proud US citizen - which makes the ethnic slurs he endured even more hurtful.

Attorney Marko says the nurse, Tammy, was reprimanded in Virginia for using the N-word. And she was terminated from two nursing homes before being hired there. She's now lost her nursing license in Michigan.

In a statement from Autumnwood, they say, "The actions depicted in the video are in no way illustrative of the quality care that is provided by the caring staff at Autumnwood on a daily basis. The employees identified from the video have been terminated, and additional training has been provided to all employees."

"Worst of all, they sent Mr. Younes a bill for abusing his father," said Marko. "That's despicable."

No criminal charges have been brought in this case but Marko says the Attorney General is looking into this case. The civil trial starts in June.



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Family says hidden camera shows nursing home abuse

For Parents Around the Country, Having a Disability Can Mean Losing Custody of Their Kids

In 2012, Sara Gordon, a young mother with an intellectual disability, had her 2-day-old daughter taken by the state of Massachusetts and placed in foster care. Specifically, the state believed she was unable to care for her newborn because of her disability, based on difficulty officials said she displayed with feeding and diapering. While these are common challenges for most new mothers, for Gordon, it led to a battle involving the federal government. After more than two years, she regained custody of her daughter.

Gordon’s story is not unique. As people with disabilities become more integrated into their communities, a growing number are becoming parents. Researchers estimate that at least 4 million parents in the United States—roughly 6 percent of the parent population—have a disability. At the same time, disabled parents often contend with bias and speculation concerning their parenting ability, especially by the child welfare system.

More than two-thirds of state child welfare laws still allow for a parent’s disability to be considered for the purposes of terminating parental rights. And tellingly, a recent study found that 19 percent of children in foster care had been removed from their home at least in part because they had a disabled parent. According to the National Council on Disability, “The child welfare system is ill-equipped to support parents with disabilities and their families, resulting in disproportionately high rates of involvement with child welfare services and devastatingly high rates of parents with disabilities losing their parental rights.”

Now, however, legislatures across the country are considering changes to state laws that would ensure the rights of parents and prospective parents with disabilities, along with their families. This week, a committee in the Colorado House will vote on the Family Preservation for Parents With Disability Act (HB 18-1104). The bill, sponsored by Rep. Jessie Danielson (D-Wheat Ridge), establishes safeguards for parents and prospective parents with disabilities—which “are critical to family preservation and the best interests of the children of Colorado.”

HB 18-1104 is based on the idea that ensuring the rights of parents with disabilities is compatible with protecting the bests interests of children. To that end, the legislation establishes a number of protections: First, the bill prohibits a parent’s disability from serving as the basis for denying or restricting custody, visitation, adoption, foster care, or guardianship, when it is otherwise considered to be in the best interest of the child. Second, the legislation requires courts to consider the benefits of providing supportive parenting services, which may assist parents or prospective parents with disabilities in fulfilling parenting responsibilities, when determining custody, visitation, adoption, foster care, and guardianship. Finally, the bill requires the state’s child welfare agency to provide reasonable accommodations to parents with disabilities and their families based on individual need.

Last month, Carrie Ann Lucas, executive director of Disabled Parents Rights, along with several parents with disabilities, testified before the Colorado House Committee on Public Health Care and Human Services in support of HB 18-1104. “In my parent defense practice, between 75 and 80 percent of my clients in child protection cases had a disability. Oftentimes disabled parents are not receiving the accommodations they are entitled to. Too often decisions are made to prevent a child from going home, without providing parents a fair opportunity to parent,” Lucas told Rewire.News.

“This bill provides some checks and balances for families, ensuring parents have a fair chance to parent, and ensuring children are not denied the opportunity to live in the family of origin due to discrimination,” she continued.

Notably, there is opposition to the legislation. According to CBS Denver, “Some social workers are concerned the bill goes too far and one lawmaker suggested better training for social workers, in how to accommodate parents with disabilities, may be a better approach.”

According to the National Research Center for Parents with Disabilities (full disclosure: I am employed there as an attorney and researcher), 16 states have successfully passed similar legislation. Last year, for example, South Carolina Gov. Henry McMaster (R) signed the Persons with Disabilities Right to Parent Act (H 3538) into law. This legislation prohibits discrimination against parents and prospective parents with disabilities in matters of custody, visitation, child welfare, guardianship, and adoption. The bill also eliminates disability as grounds for termination of parental rights.

The legislatures in ten more states, including Colorado, are considering bills that would forbid discrimination in the child welfare, family law, and adoption systems based on parental disability.

Nonetheless, not all states have been successful. For example, advocates in Massachusetts have been pushing their legislature to pass an act prohibiting discrimination against adults with disabilities in family and juvenile court proceedings for nearly four years.

These policies can have devastating effects on families, especially for those who are already at higher risk of being targeted by the child welfare system.

Heather Watkins, a Black disabled woman, disability rights advocate, writer, and mother, is among those who have been steadfast in urging lawmakers in Massachusetts to pass legislation that would prevent discrimination against parents with disabilities. She told Rewire.News, “As a disabled parent of color, I am deeply concerned about protecting the rights of parents with disabilities. No one should have to worry that their disability will be used adversely to separate them from parenting their children.”

Jennifer, a mother who requested that Rewire.News use a pseudonym for her, has epilepsy and bipolar disorder; she is also a stroke survivor who lives in a state without legal protections for disabled parents. Recently, she told Rewire.News that she had a “bogus” call made to her state’s child welfare agency after women from her boyfriend’s church unexpectedly stopped by their home.

“We were unloading groceries [from the car and] it was cold and raining so I was dropping them in the living room,” she recounted. The women told her that her house was “deplorable” and days later a social worker showed up at her door. Jennifer continued, “I’m not the most organized but my kids weren’t in danger and now a child really needing help went unserved.”

“I was terrified I’d lose my kids,” she told Rewire. “I was scared [that] once I told them of my stroke and bipolar, it would be used against me.” Jennifer was equally worried about the wellbeing of her three children, all of whom also have disabilities. She was especially concerned that her son, who has physical, intellectual, and emotional disabilities, would be institutionalized because others would be unable to care for him. Luckily, upon meeting with Jennifer, the child welfare agency closed their report, finding no problems.

Others, however, face different consequences. Longstanding research has revealed the overrepresentation of certain racial and ethnic populations—including Black and Native people—in the child welfare system when compared to their numbers in the general population. In addition, disability rates are higher among Black and Native parents, meaning that many disabled parents face double discrimination because of their multiple marginalized identities. “As persons of color and parents, our abilities are often second-guessed, given a side-eye, and profiled in disproportionate ways,” Watkins said.

Amy Mulzer, instructor of clinical law in Brooklyn Law School’s Disability and Civil Rights Clinic, agrees. She told Rewire.News, “All parents with disabilities are at risk of discrimination as a result of societal assumptions about their ability to parent. But when you are a parent with a disability who is also a person of color or low-income or a member of the LGBTQ community, the risk is that much greater.”

Mulzer has represented many parents with disabilities who are also members of other vulnerable communities. “You face a real danger of losing your children to the child welfare system, and once your children have been removed, it’s almost impossible to get the accommodations you need to complete your court-ordered case plan and bring them back home,” she said.

Contrary to pervasive stereotypes about the capabilities of parents with disabilities, having a disability does not inherently make someone an unfit parent. In fact, research has consistently found that the majority of parents with disabilities and their children fare quite well when given the opportunity. Scholars are now beginning to take notice of the many ways in which children actually benefit from having a disabled parent, such as exhibiting increased empathy. Likewise, having a disability may be beneficial to parents. “Disability permeates every aspect of my lived experience and has factored in key quality of life decision-making and helped chart the course of my life’s trajectory. My parenting has benefited as I’ve had to consider how I would respond to challenges knowing that my child would be a direct recipient of how I internalized my disability,” Watkins told Rewire.News.

The right to raise a family is undeniably one of our most cherished in the United States. However, for people with disabilities, especially those from marginalized communities, it is often challenged solely because of bias and speculation. Changing state laws is an important first step to finally addressing this unjust treatment—in addition to shifting priorities toward creating stronger societal support for everyone, including those with disabilities.

As Watkins put it, “Though it hasn’t always been easy, I’m grateful for the dimension and experience that being a disabled parent has granted me. I know that adaptations, support networks, and eliminating access barriers—structural and attitudinal—are keys to greater quality of life.”

Full Article & Source:
For Parents Around the Country, Having a Disability Can Mean Losing Custody of Their Kids

Dayton Introduces Legislation To Fight Elder Abuse

ST. PAUL, Minn. (WCCO) — Governor Mark Dayton is taking action to help protect Minnesota seniors.

This comes after a wave of criticism against the state health department’s lag in addressing elder abuse claims. Governor Dayton introduced new proposals on Tuesday that will protect the health and safety of seniors and vulnerable adults.

These measures were sparked after a serious backlog of investigating elder abuse surfaced within the Minnesota Department of Health. The department started 2018 with more than 3,000 reports of abuse and maltreatment that had yet to be looked into.

During this controversy, the former commissioner of the Minnesota Department of Health stepped down. And the governor also gave the Minnesota Department of Human Services control over the agency responsible for investigating abuse in senior care homes.

On Tuesday, Governor Dayton proposed strengthened criminal and civil penalties for abusers, and companies that employ them.

“These are people who call themselves care providers. They’re providing care to vulnerable people and some of the abuses that I’ve learned about are not only illegal, they are deeply immoral,” Dayton said.

On Tuesday, we learned allegations of privately-owned residential care facilities for older and vulnerable adults have increased more than 50 percent in recent years. There were more than 24,000 complaints last year alone.

Full Article & Source:
Dayton Introduces Legislation To Fight Elder Abuse

Family sues Livonia nursing home over elder abuse that was caught on camera

LIVONIA, Mich. (WXYZ) - There are disturbing allegations of abuse in a Livonia nursing home, with some of it caught on a hidden camera.

The family of the patient is suing; saying the abuse to their elderly father was partially motivated by race.

The allegations are hard to hear and even harder to see, a caretaker at Autumnwood telling her then 87-year-old patient to “shut up”, calling him derogatory names, and throwing him in and out of his wheelchair.

All of it was caught on a hidden camera over just 2 days - a sliver of the 6 months of alleged abuse.

Husein Younes, the then 87-year-old Lebanese man, went to Autumnwood for help to recover from a surgery in May of 2015.

The hidden camera was placed after Younes had been complaining for months about the behavior to his family.

“I raised concerns with the Autumnwood many times and they assured me everything would be taken care of,” says Husein’s son Salim Younes.

“This is one of the most troubling cases I have ever seen. It’s chilling and its literally a horror house and I would wish this on no one,” says the family attorney Jonathan Marko.

The lawsuit against autumnwood and its owner claims the abuse was racially motivated.

Autumnwood did release a statement that reads:

Autumnwood of Livonia takes any allegation of abuse and inappropriate care seriously, and exhaustively investigates such claims to ensure the safety of its residents. Autumnwood’s policy is not to comment on residents in their facility to protect their privacy, and to comply with privacy laws and regulations related to health information. However, now that a family of a former resident at Autumnwood of Livonia, the Younes family, who has filed a lawsuit against Autumnwood of Livonia, made the decision to publicly litigate their lawsuit in the press and make public allegations and information related to the care and condition of Mr. Younes, my client now has the right to make a public statement.

In December 2015, the Younes family’s attorney raised concerns to staff of Autumnwood of Livonia about the treatment of Mr. Younes after he had been discharged from the facility. The Younes family’s attorney informed staff that they believed that Mr. Younes had been abused at the facility. Despite requests for additional information, no details were offered. My client immediately conducted an internal investigation, reported the allegations to the state survey agency that regulates nursing homes, and reported the allegations to the local police department consistent with state and federal regulations. My client and the notified governmental agencies, were unable to substantiate the allegations with the information we had at the time.

Although the Younes family had in their possession in December 2015 a video that provided information related to the allegations of abuse, the existence of the video itself was not disclosed to my client until May of 2016, when the video was sent to my client along with a demand for payment of monetary damages. The actions depicted in the video are in no way illustrative of the quality care that is provided by the caring staff at Autumnwood on a daily basis. When Autumnwood received this new information and video, another internal investigation was immediately launched, and the new information provided by the Younes’ attorney, five months after the alleged incident, was turned over by Autumnwood to the state survey agency and law enforcement.

The employees identified from the video have been terminated, and additional training has been provided to all employees. Autumnwood continues to assist the involved state regulatory and law enforcement agencies with their investigations of the former staff and is committed to continuing to provide quality care to all of the residents and families they have the privilege to serve.

As the family has filed a civil complaint and the matter is in litigation, Autumnwood cannot comment any further.

Autumnwood claims early investigations by them, police and governing agencies before the video were unable to substantiate the claims made by the family.

Full Article & Source:
Family sues Livonia nursing home over elder abuse that was caught on camera

Tonight on Marti Oakley's T.S. Radio: Hospice Survivors and Victims with Carly Walden

5:00 pm PST… 6:00 pm MST … 7:00 pm CST … 8:00 pm EST

Peter Rosenberger has been a caregiver for 30 years and has his own radio show. He gives major insights on what it is like to live this life. We look forward to hearing his inspirational message.

LISTEN to the show live or listen to the archive later

Casey Moreland to stay in jail after second round of obstruction charges

Former Nashville judge Casey Moreland will stay in jail while he awaits a trial on obstruction of justice charges, a federal judge said Tuesday.

The decision came days after authorities accused Moreland of making a second attempt to throttle their ongoing corruption investigation.

Moreland was first charged with interfering in that investigation last March, when investigators say he bribed a woman who had made allegations against him.

His trial was set for June 2018, but he was allowed to stay at home in the meantime, wearing an ankle monitor. The terms of his release forbid him from talking to any potential witnesses in the case against him.

Then, on Thursday, the  FBI released a stunning new criminal complaint that included new allegations that Moreland had tampered with a witness as recently as Feb. 13.

The complaint said he worked with a woman, identified as "CS-1," to siphon thousands of dollars away from the Davidson County Drug Court Foundation over the course of years. After the FBI launched its investigation, the complaint said, Moreland asked her to destroy evidence of the crime.

This year, Moreland suggested ways the accomplice — who was working with the FBI — could lie to a grand jury investigating the theft, according to the complaint. Prosecutors worked with the woman to tape several conversations with Moreland.

At a hearing on the new charges, Moreland's defense attorney argued that U.S. Magistrate Judge Joe Brown could allow Moreland to remain free on bail with stricter rules

Assistant U.S. Attorney Cecil W. VanDevender balked.

"You only get so many chances to have the benefit of the doubt," he said.

Brown ultimately sided with prosecutors, although he left the door open to reconsider of Moreland's mental health deteriorates. Moreland's wife testified that he had battled depression and had been forgetful in recent months, possibly showing signs of Alzheimer's Disease.

"You can always ask for a reconsideration," Brown said. "It still remains a very close case, it's just that I came down on the other side this time."

Moreland is being held in Grayson County Detention Center in Kentucky. He came to court Tuesday in a teal jumpsuit with his legs in shackles and his hands cuffed behind his back.

Moreland's attorney Peter Strianse said Brown's decision was disappointing if predictable. But he used Tuesday's hearing, which ran about three hours, to lay out the framework of a legal theory against the theft allegations in the latest criminal complaint.

Authorities say "CS-1" and Moreland pocketed thousands of dollars in payments from patients the foundation's treatment center.

Strianse said federal authorities do not have jurisdiction to prosecute theft from the foundation.

"That money is in no way federal money," Strianse said. "There is no federal ownership of that money."

VanDevender argued the federal investigation was valid because of a U.S. law against theft from an organization that receives federal funds. Federal grants go to the foundation, he said.

Full Article & Source:
Casey Moreland to stay in jail after second round of obstruction charges

See Also:
Undercover Recordings At Center Of Moreland Case

Nashville judge faces federal criminal charges

Casey Moreland to take leave from bench

Judge dismissed tickets, fines for female friend

Metro General Sessions Judge Casey Moreland resigns as presiding judge

Ethics Complaint Levels Charges Against Two Judges, Lewis

Investigation underway into inmate/deputy relationship in judge’s court 

Is Your Durable Power of Attorney Missing This?

Most of us insure our cars, homes, and other valuables.

But what about your wishes?

Who would you trust to pay your bills, manage your investments, and make important health care decisions if you can’t?

Who would make sure that things get done just the way you want them done in the event of something happening to you?

It doesn’t matter if you’re young or old, healthy or frail, wealthy or not-so-wealthy.

Life-threatening accidents happen every day, and debilitating illnesses can strike with little notice.

That’s why you should consider drafting “if I get hit by a bus” documents.

Without them, you might not be happy about who takes control of your life or the decisions they make on your behalf if you can’t.

Let’s start with the difference between a power of attorney and a DURABLE power of attorney.

A power of attorney appoints someone you select to act on your behalf for legal or financial matters, such as operating a business or buying real estate.

In most states, it terminates if you become incapacitated.

A “durable power of attorney” automatically extends during the time you are incapacitated and unable to make important decisions.

The person you appoint is known as an attorney-in-fact but they do not have to be an actual lawyer.
You can also appoint a second-tier or a third-tier person in case your first choice is unable or unwilling to assume the role.

Generally speaking, your DPOA should be broken into two parts.

DPOA Part 1:
A durable power of attorney for your finances.

This document gives someone the power to manage your finances.

The amount of power you allow is up to you. But it has to be spelled out in the document.

The authority could include collecting mail, filing tax returns, making sure you’re taking RMDs from retirement accounts, and maintaining your home.

The person you pick should have discipline, patience, and a good dose of common sense.

If your finances are complex, you might allow your agent to hire professionals to assist.

DPOA Part 2:
A durable power of attorney for health care.

This document spells out your health care wishes if are unable to speak for yourself.

It takes effect if your doctor determines you lack the capacity to make your own decisions. For instance, in case you can’t understand the health care choices available or if you are unable to communicate your wishes because you’re unconscious.

In other words, when you are too ill or injured to let your wishes known, the document becomes active. If or when you recover, it no longer applies.

This person you name might be known as your attorney-in-fact, agent, health care proxy, or health care surrogate. It depends on where you live.

They will do their best to assure you receive the level of medical care you hope to receive.

What’s more, they’re required by law to follow instructions you’ve included in your document.

You might also want to include, or have as a separate document, a health care declaration or living will…

Here you state whether or not you want to be kept on life support if you become terminally ill and will die shortly without it or fall into a persistent vegetative state.

This can also address other important questions, detailing your preferences for tube feeding, artificial hydration, and pain medication in certain situations.

Hey, look, I know this isn’t stuff you really want to think about. But it’s better you tackle it now than let someone else tackle it for you!

This doesn’t have to be a complex process, either.

You can find the above documents online and complete them yourself.

However, to make sure that the documents cover your unique situation and meet your state’s requirements, your best option is to get advice from an estate planning attorney.

Also let family members know where to locate the documents and explain why you made specific choices. Hopefully, that will keep them from feuding or heading to court when you need them the most.

One more thing to keep in mind? Things change over time!

Our lives constantly change …  be it health, marital status, or finances. That means your “if I get hit by a bus” documents should change, too.

For example, suppose you drafted a health care power of attorney with your spouse as your attorney-in-fact … but now you’re divorced.

I’m guessing you wouldn’t want your ex-spouse making medical decisions on your behalf!

Yet that’s what happened to Gary Coleman, the child actor who starred in the 1970s show “Diff’rent Strokes.”

In 2010, Coleman had an accident at home. While in the hospital, he fell into a coma and was placed on life support. The following day, his ex had the hospital pull the plug, even though his advanced medical directive stated that his life be prolonged as possible!

The lesson here is not to just draft your documents and forget about them.

If you get divorced or experience any other significant life change, make sure your wishes get updated, too.

To a richer life,

Nilus Mattive

Full Article & Source:
Is Your Durable Power of Attorney Missing This?

Minn. agency that protects nursing home residents has been labeled dysfunctional

A Minnesota House committee listens to a legislative auditor's report on Tuesday, March 6, 2018, about a state office that failed to properly investigate elder abuse allegations. Don Davis / Forum News Service

ST. PAUL — A state office that exists to protect vulnerable Minnesotans, such as those in nursing homes, is dysfunctional and fails to safeguard people in its charge, a watchdog agency reports.

The Office of Legislative Auditor issued one of its most critical reports ever on Tuesday, March 6. Legislative Auditor James Nobles called it "a serious problem in state government."

Nobles and Deputy Legislative Auditor Judy Randall told of poor Health Department management, lost case files, lengthy delays and failure to communicate with vulnerable people.

"The problems ... are deep and pervasive and have been there a long time," Nobles said. "They are rooted in poor management."

Workers take pride in their work, Nobles said, but "for too long they have had to work in an environment that was ... sometimes toxic."

Problems Nobles' office found included:

• Ineffective case management.
• Unwritten and frequently changing policies.
• Ineffective staff training.
• Staff turnover that sometimes is 25 percent a year.
• Lack of staff confidence in leadership.

The investigation into the Office of Health Facility Complaints within the Health Department showed those problems resulted in investigations of abuse being long delayed.

Just 17 percent of 2017 cases met a two-day deadline to be read, let alone investigated, the report showed.

The two-day deadline is for people in "immediate jeopardy," Randall said, incidents such as when someone has been threatened with serious harm.

The auditor's office reported that one of the cases its investigators checked out "appeared to have been lost for ... more than two years after (the office) received the allegation report."

In recent years, Randall said, the Health Department office took an average of 140 days to complete investigations, far more than the 60 days set in state law. It took an average of 38 days to interview vulnerable adults involved in an incident, Randall said, so long that people likely would not be able to remember details.

The report did not indicate if there were any deaths or health issues that resulted in investigation delays.

State Health Commissioner Jan Malcolm, who Gov. Mark Dayton appointed to fill an opening in recent weeks, said she agreed with the audit, adding changes already are being made.

The backlog of cases has been reduced. A stack of more than 2,300 cases that needed to go through triage has been eliminated, Malcolm said, and the 826 open investigations in December are down to 430.

"This progress, while extremely impressive, is a first step," the commissioner said. "Necessary, but not sufficient."

Part of the problem in the Health Department has been that reports filed electronically were printed out and investigators worked off the hard copies. Malcolm said that the 400 allegations submitted each week now are dealt with via computer, making case management more effective.

Malcolm promised to address morale after the audit report showed almost 60 percent of staff said they do not have confidence in senior leadership.

Staff members said there was "disorganization" and "mistrust" in the office.

Malcolm said her department is developing employee training and promised to do a better job of communication within the department and with those affected.

The commissioner refused to tell Rep. Ron Kresha, R-Little Falls, if she has fired anyone for the problems. Malcolm said she is not allowed to discuss the issue because it is a private personnel issue, but promised "we are addressing it quite directly."

Rep. Debra Kiel, R-Crookston, said the first thing the Legislature needs to do is collect information, so she has introduced legislation to establish a task force that would provide answers for the 2019 legislative session.

"We must make real and lasting changes" after getting more information, Kiel said.

"Seniors and their families need to have confidence in knowing how the system works ... and what they can do in the event of mistreatment," the representative said.

Fixing the state complaint office is the first step in reducing abuse and other maltreatment, Kiel said.

The audit report pointed out that the Health Department mostly regulates nursing homes, while other government agencies regulate assisted living and other facilities.

A group working on the issue, the Elder Abuse Workgroup, praised the overall audit report, but called for some changes in state law.

For instance, the group seeks to apply similar rules and laws to assisted living centers that nursing homes follow. It also seeks more rights for senior citizens to reduce the fear they feel ini reporting nursing home maltreatment.

Full Article & Source:
Minn. agency that protects nursing home residents has been labeled dysfunctional

Tonight on Marti Oakley's T. S. Radio: Our Thousandth Broadcast Celebrated!

Please feel free to call in to the show this evening at 8 pm CST. 917-388-4520

 A special thanks to all of our previous guests and all show hosts!

And, A special thank you to Marcel Reid and the Whistleblowers! Summit for our panel at the Summit again this year! Thank you to Danny Tate for our fabulous intro music. To all who have contributed their time and energy to bring TS Radio to this milestone, you have my deepest gratitude. We could not have been the success we are without all of you and your individual efforts combined together and working as a team! Each show is promoted individually and available in archive on TS Radio/marti-oakley Just look for the logo of your favorite show!

Over these years we have covered guardianship/conservator abuse of the elderly, elder abuse & neglect, nursing home abuses, corrupt courts, CPS threats to families, corrupt government agencies, whistleblowers, our veterans, death by Hospice, medical kidnap, judicial corruption, animal advocacy and agricultural/land issues.

We could not have accomplished all of this without all of you!!

LISTEN to the show live or listen to the archive later

Editorial: Important safeguard failing state's elderly

Our state needs to change its guardianship system to better protect families and individuals.

In Pennsylvania, someone who makes a living doing your nails or braiding your hair must be licensed by the Department of State. A notary public must take a class, be approved by the state Senate and obtain a $10,000 surety bond.

A professional guardian, someone tasked with making decisions about health care, living arrangements, finances and more for those considered incompetent to manage their own affairs, requires only court approval. State law requires no certification, no background check, no insurance against loss of the individual's assets, really nothing but the trust of an orphans court.

The failings of this system - which strips individuals of even limited control over their own lives - are many, as a three-day series in the Reading Eagle found.

Among them:

Nine months after a woman who had been convicted of financial theft in Virginia became the court-appointed guardian of a Montgomery County man's assets, his house was subject to foreclosure over unpaid mortgage payments and other bills. The same woman had been appointed guardian in 88 other cases in 2015 and 2016 in Montgomery County and Philadelphia.

Data on guardianship in Pennsylvania are not collected in any organized fashion, making the system difficult to monitor and problem areas hard to quantify and therefore a challenge to solve.

Though family connections are no guarantee of fealty to an elderly person's best interests, Berks County courts appear to favor professional guardians to a degree that seems difficult to justify. In 92 percent of cases in which the Berks County Area Agency on Aging asked a court for one in 2016, a professional guardian or attorney was appointed. In spite of there being family members living in the state in half of the cases, a relative was appointed only twice. As Sam Brooks, senior attorney for Community Legal Services of Philadelphia, said, "The default position should be to look for family."

Many of those ruled incapable of making their own decisions and given a court-appointed guardian - 76.9 percent in Philadelphia from 2014 through 2016 - were not present at the hearing stripping them of their rights, had no attorney representing them in the proceeding, or both.

Even when an attorney is appointed on an individual's behalf, that attorney is under no obligation to argue against a guardian; an attorney can instead take the position that a guardianship would be in the individual's best interest.

Pennsylvania's guardianship system clearly needs an overhaul.

In an incompetency hearing, for example, there should be someone to argue for competency, leaving it to a judge to decide what would best serve an individual's best interests. Failure to do so creates the potential that a person could lose even limited oversight of their health care, lifestyle and assets.

Family members, particularly those who express interest in a relative's care, should get a chance to make a case that they're able to do so.

And most importantly, the state needs to set standards for professional guardians. People convicted of theft should not be put in charge of others' assets.

Full Article & Source:
Editorial: Important safeguard failing state's elderly

Prosecutors, fearing nursing home's closure, won't pursue felony exploitation charges against its operator

An Iowa prosecutor is dropping felony charges against a nursing home operator accused of misusing cash from a resident's personal funds.

Marc Johnson, whose company runs the Danville Care Center in southeast Iowa, had been charged by Iowa's Medicaid Fraud Control Unit with fraudulent practices and dependent-adult abuse in the form of financial exploitation.

But County Attorney Amy Beavers told the Des Moines Register that the facility's owner claimed he might have to close the center and evict its three dozen residents if Johnson were convicted.

Johnson is president of Cardinal Care Company. He formed the for-profit company in 2012 and was hired the next year by the Danville Development Co. to run the Danville Care Center. Danville Development President Matthew Hauptman told the Register that closure was “unlikely” but that his company had to guard against the possibility.

The decision not to prosecute doesn't “pass the smell test,” advocates for the elderly told the newspaper.

“For the county attorney to close her eyes to this and leave this man in a position of authority so the business can remain open just seems absurd to me,” Dean Lerner, an advocate for seniors who once ran the Iowa agency that inspects nursing homes, told the Register.

The case began with the Medicaid Fraud Unit 2016, when the state accused Johnson of spending almost $700 on a television for the facility, using money from the trust account of an elderly resident. Johnson also was charged in connection with making two $500 "donations" from the same resident's account to the facility, with the money going toward events and equipment.

Though a deferred-prosecution agreement, Beavers promised not to pursue the charges if Johnson paid all court costs associated with the case and doesn't violate any laws for two years. Beavers said a state audit of the residents' trust accounts revealed no irregularities.

Full Article & Source:

Prosecutors, fearing nursing home's closure, won't pursue felony exploitation charges against its operator

ADAPT Demands the FDA to Stop Shocking Disabled People into Submission

03/09/18 – FOR IMMEDIATE RELEASE – ACTION HAPPENING NOW

For More Information:

Mike Oxford: (785) 224-3865

Cal Montgomery: (312) 813-6816 (text only)

Priya Penner: (585) 944-3086

Marilee Adamski-Smith: (715) 204-4152

WHO: National ADAPT

WHAT: ADAPT Demands the FDA to Stop Shocking Disabled People into Submission

WHERE: In front of FDA Director Scott Gottlieb’s house, Pennsylvania Ave NW & L St NW, Washington
DC 20037

WHEN: Friday, March 9, 2018, happening now

DISABILITY RIGHTS GROUP DEMANDS THE FDA ISSUE LONG-DELAYED REGULATIONS

03/09/2018 – Washington, D.C. Members of the national disability rights group ADAPT are outside the home of FDA Director Scott Gottlieb demanding that he release the regulations that would immediately end the use of an electric shock device to control disabled children and adults at the Judge Rotenberg Center (JRC) in Canton, Massachusetts. “The FDA wrote the regulations to stop this in 2016, but has delayed them,” said Rhoda Gibson, an organizer with the Massachusetts ADAPT chapter. “Disabled Americans are tortured in my state every day with Gottlieb’s blessing.”

ADAPT and other disability led organizations have been calling for an end to JRC’s use of this device for years now. The group went and protested the facility in 2016 and then went to the FDA last spring. They are now at Gottlieb’s house because they feel the FDA has dragged their feet for too long and needs to release the regulations immediately. “Disabled people are being tortured there every day. This has gone on long enough. The federal government needs to stop looking the other way and do something about this” said Priya Penner of Rochester New York.

Numerous news outlets have covered the torture that goes on at the Judge Rotenberg Center including Fox UnderCover, ABC Nightline and Anderson Cooper. In 2012 Fox UnderCover exposed the video of Andre McCollins being tortured at JRC for over 7 hours and shocked 31 times. JRC tried to keep this video under wraps for over 8 years but Fox Undercover’s story exposed the cruelty of the practice to the American public. The torture still continues to this today.

While ADAPT has long opposed all institutions they hold a special contempt for the Rotenberg Center because of their use of electro shock devices. “The JRC has a bigger system of abusive violence and coercion, but the shock is the worst thing they do. This shock is specifically designed to be more painful than a police taser,” said organizer Marilee Adamski-Smith with the Central Wisconsin ADAPT Chapter. Adamski-Smith pointed to survivor Jennifer Msumba’s statements about wanting to die when she was shocked.

Activists argue that rather than torture used at the JRC, more supports are needed to assist people living in the community. “Those supports work,” said Cal Montgomery, an organizer with the Chicago ADAPT. “Gentle, trauma-informed approaches that give people control over their own lives result in even people with histories of violence and self-injury living happy, healthy lives. Pain and fear may suppress dangerous behavior in the short term, but they make the underlying problems worse.”

For decades ADAPT has struggled to secure for disabled Americans the same rights and liberties enjoyed by their nondisabled neighbors. Learn more about ADAPT’s history and activities at www.adapt.org, on social media with the NationalADAPT Facebook page and on the @NationalADAPT Twitter, and under the hashtag #ADAPTandRESIST. You can also follow the fight against the JRC shock device at www.adapt.org/jrc and #StopTheShock.

Full Article & Source:
ADAPT Demands the FDA to Stop Shocking Disabled People into Submission