Bernie Jestrabek-Hart calls her Brookdale Senior Living Scotts Valley
apartment a ‘live-in art studio.’ (Dan Coyro -- Santa Cruz Sentinel)
SCOTTS VALLEY >> Two residents of Brookdale Senior Living
Scotts Valley have joined a lawsuit filed in federal court in San
Francisco alleging the company based in Brentwood, Tennessee, committed
elder financial abuse through understaffing that makes it impossible to
provide services residents were promised and have paid for.
The
lawsuit, which names seven plaintiffs, seeks class action status for
5,000-plus residents in Brookdale’s 89 assisted living facilities in
California and at least $45 million in damages, $9,000 for each affected
resident.
The lawsuit alleges Brookdale, a publicly traded company that is
the largest provider of assisted living for senior citizens in the U.S.,
violated the Americans with Disabilities Act by failing to make its
facilities readily accessible by individuals with disabilities.
Bernie
Jestrabek-Hart, 72, of Scotts Valley, is one of the plaintiffs. The
other Scotts Valley plaintiff is Patricia Lindstrom, 81, whose husband
Art died in February of a heart attack.
The lawsuit alleges
Brookdale staffing is based on predetermined labor budgets and desired
profit margins, with permission from corporate headquarters required for
deviation. This creates a disincentive for executive directors at a
facility to request increased staffing “because they are not eligible
for bonuses unless they meet earnings targets,” according to the
lawsuit. Gay Crosthwait Grunfeld of Rosen Bien Galvan & Grunfeld,
one of three law firms representing plaintiffs, contends the incidents detailed in the initial lawsuit filed in July are symptoms of a systematic problem at Brookdale facilities.
Jestrabek-Hart read about the lawsuit and contacted the law firm to share her story.
Brookdale
spokeswoman Heather Hunter said, “We believe this lawsuit is without
merit. We are not able speak directly to specifics, but we are defending
ourselves vigorously.”
In February, Brookdale Senior Living
reported a net loss of $572 million for 2017 on $4.75 billion in
revenue, compared with a net loss of $405 million on $4.98 billion in
revenue for 2017.
STAFFING ISSUES
Brookdale Scotts Valley, licensed for 220 beds at 100 Lockwood Lane, was called Oak Tree Villa before Brookdale took over.
Jestrabek-Hart, who uses a wheelchair, came to Brookdale Scotts
Valley in October 2015 and is paying $4,477 per month plus $834 per
month for assistance with dressing and showering.
Fees have risen
21 percent and 11 percent respectively since she moved in, compared to
the 2016 consumer price index was 3.4 percent, according to the lawsuit.
A
metal sculptor for 30 years, Jestrabek-Hart overcame polio and ran an
equestrian facility in Idaho. In 2012, she switched to fabric creations
after surgeries to fuse her back and replace her shoulders. She’s dealt
with arthritis and fractured toes on her right foot.
She expected she would get help showering four times a week as
per her contract and that she would be able to take the Brookdale
shuttle bus to doctor’s visits and social outings, as the company
website stated.
After she moved in, she learned transportation was
limited — Monday and Thursday 10 a.m. to 4 p.m. — and she was told her
motorized wheelchair was too heavy — which had not been an obstacle at
her prior assisted living residence in San Jose.
She said she calls Para Cruz, and pays for the service herself.
According to the lawsuit, the fees have risen due to the cost of
providing services but Jestrabek-Hart said there are not enough staff.
She
was one of several residents stranded on the first floor for three
hours, unable to reach her room on the second floor, when the power went
out. She was unable to use to her CPAP machine, prescribed for sleep
apnea; there was only one generator-powered outlet in another wing,
inaccessible to her.
She has waited two to three hours for a
staffer to help her shower, sometimes falling asleep before assistance
arrives, and she has waited 90 minutes to an hour in the morning and
evening for help dressing and undressing. She’s been told only one staff
member is on duty to meet the needs of 150 residents.
She once fell out of her wheelchair onto the floor of the laundry
room, enclosed by a heavy hard-to-open door and lacking emergency pull
cords, with no way to summon help; by chance someone walked in and
assisted her.
She notified the facility, but nothing has changed.
MEALS ISSUE
Lindstrom
and her husband came to Brookdale Senior Living in November 2015,
attracted by “nutritious meals and snacks planned by a registered
dietician,” as one of the forms said.
Her husband had diabetes,
heart disease and cognitive impairment. They paid $5,900 per month for a
two-bedroom unit plus $400 per month as a second-resident fee, before
moving to a smaller studio for $4,295 per month plus the $400 per month
second-resident fee.
Lindstrom found there was no dietician on staff and too few staff
to pay attention to individual dietary needs. The menus, determined in
Tennessee, were starchy, mashed potatoes, baked potatoes and root
vegetables, lots of canned foods rather than fresh, and “sugar, not just
in desserts,” she said.
In three months, her husband gained 20 pounds, she said.
“His blood sugar was high repeatedly,” she said. “That meant his brain didn’t work right.”
COMPLAINTS
In April 2017, the state Department of Social Services, which licenses residential care facilities for the elderly, issued a $10,000 penalty
to Brookdale Senior Living Scotts Valley after an investigation into a
fall by elderly man on Feb. 21, 2016 and discovered the next day.
The man was hospitalized in the intensive care unit for
dehydration and rhabdomyoloysis, which is when damaged muscle issue
breaks down.
The state found the man had not received food or water for 24 hours, concluding “staff failed to provide.”
Jestrabek-Hart
is serving her second one-year stint as president of the resident’s
council. She sent letters last fall to then-CEO Andy Smith and in March
to the new CEO, Cindy Baier, describing issues such as not enough
staffing, transportation problems for those with electric wheelchairs
and uneven sidewalks due to tree roots creating trip hazards.
State law requires
residential facilities to respond in writing within 14 days to any
written concerns or recommendations submitted by a family council
representing residents, but Jestrabek-Hart did not get a response to her
letters.
She said the new executive director, May Sunglao, who
started in August, made some improvements, such as painting the sidewalk
trip hazards yellow so they are easier to see and taking care of the
lawn.
“Our staff is wonderful. They work very hard trying to do what’s right,” said Jestrabek-Hart.
If the lawsuit should be successful, she would like to see more staff.
At the front desk is a notice saying seven positions are available.
Baier, who became CEO Feb. 28, told McKnight’s Senior Living that the Brookdale plans to increase total compensation costs 5.5 percent to 6 percent, improving salaries and wages to boost employee retention.
MADISON, Wis. - On April 3, Governor Scott Walker signed two bills related to Alzheimer’s care into law.
The first bill, AB-629, reviews and adjusts Guardianship Laws to allow
Wisconsin courts to effectively communicate with other courts when a
jurisdictional issue arises. Sample issues can arise in a situation
involving individuals who live seasonally in another state, transfer of
guardianship and long-distance caregiving. This bill would simplify the
process for resolving a jurisdictional adult guardianship issue, thus
allowing cases to be settled more quickly, and provide more predictable
outcomes.
Bill AB-632 allows the Department of Health services to distribute up to
$500,000 in grants to community programs in efforts to raise awareness
and utilization of such services and support programs, specifically in
rural areas.
“A lot of it is education and just making sure that the local
agencies are empowered to educate people on where people can turn to,”
said Abbe Klein with the Alzheimer's Association.
Both bills were passed through their respective committees and full
chambers with unanimous “yes” votes, but the organization said they’re
not stopping yet.
“There are always bills that are in the works and that we're always kind
of advocating for and educating people on. So no, this is definitely
not the end, it's a great step forward but there are always going to be
more bills in the pipeline we're going to want support on,” said Klein.
For more information about the Alzheimer’s Association, visit alz.org or call 800.272.3900.
FORT EDWARD — A former nursing
assistant who pleaded guilty to having sexual contact with a resident of
the nursing home where he worked has been sentenced to 10 years on
probation.
Richard
Gonzalez-Medina, 25, pleaded guilty in Washington County Court in
February to a felony count of third-degree criminal sexual act as part
of a plea deal.
He
was charged in connection with an incident last June at the Washington
Center for Nursing and Rehabilitation in Argyle, where he worked.
His lawyer, Cheryl Coleman, said
Gonzalez-Medina regretted the incident and that her client "mistook the
victim’s silence for acquiescence."
The
victim, who was in the home for rehabilitation, told police that
Gonzalez-Medina had been fondling him during baths before attempting
oral sex.
Gonzalez-Medina will
have to register as a sex offender and faces up to 4 years in state
prison if he violates probation. The state has stripped his CNA license,
finding that he was guilty of "resident abuse."
A number of Bay Area hospitals have
banded together with city officials to try to help the toughest cases
among San Francisco’s homeless.
The
San Francisco Healing Center, a new 54-bed psychiatric facility,
occupies an entire floor at St. Mary’s hospital and is intended to serve
the city’s most vulnerable individuals: those suffering from severe
mental illness or addiction, who are also some of the most difficult to
channel off the streets and into stable housing.
Businesses
in San Francisco have been concerned about the impact of the city’s
sizable homeless population for years, especially as both residents and
tourists continue to note aggressive behavior, open drug use and needles
littering streets in surveys.
While
the new center will not solve homelessness, it will add more resources
and the center could be a model that’s scaled up in the future. It’s
designed for a spectrum of treatment that includes 24-hour nursing and
psychiatric care, counseling, medical treatment, community support and
activities, and individual recovery and discharge planning.
“We have all worked together really well in trying to get this facility off the ground,” said Barbara Garcia,
director of health at San Francisco’s Department of Public Health,
which is involved in the project. “It’ll be providing mental health
support, vocational training — it really is a recovery model.”
The
center will double the city’s number of conversatorship beds. Granted
by a judge, conservatorships are assigned in cases where an individual
is mentally ill or drug addicted — or both — and unable to live
independently. Previously, individuals who couldn’t be accommodated
needed to wait for placement in out-of-county facilities, hospitals or
jail.
What makes the center’s
approach unique, according to Crestwood Behavioral Health Executive Vice
President Patricia Blum, are practices that take into account multiple
factors. Crestwood Behavioral Health is one of the partners involved in
the project.
“We use really
promising, evidence-based practices that include trauma-informed
services, with a focus on treating trauma and not just the diagnosis,”
she said. “We also use an employment model, helping to connect people
with jobs in the community. If people have a meaningful role and
purpose, there’s a significant impact.”
Although the number of beds is
relatively small when compared to the city’s homeless population of
nearly 7,000 — 40 beds, plus an additional 14 beds available to outside
providers to purchase — getting help to more people should help both
them and the city.
“We’re here as a
business community worried about the very future of San Francisco’s
brand,” Joe D’Alessandro, president and CEO of San Francisco Travel told
the Business Times in 2016. In the past several months, property owners
in both the Financial District and western SoMa have started working on
creating community benefit districts to combat homelessness and dirty
streets.
The 40 beds are for
individuals who wind up in inpatient treatment through conservatorships.
Conservatorships have been relatively rare until now, but they may also
be expanding if SB 1045, a state Senate bill sponsored by Sens. Scott
Wiener and Henry Stern, is successful. The bill proposes broadening the
authority of counties to assign conservatorships to individuals who are
too impaired by mental illness or severe drug addiction to care for
themselves.
Wiener said that
strengthening conservatorship laws for “extreme cases” are a necessary
lever for getting chronically homeless into treatment.
“Here
in San Francisco our public health officials and community
organizations have been working tirelessly, but they need more tools to
help the people that are suffering on our streets,” he said.
If
the bill is successful, San Francisco Healing Center may serve as a
particularly important partnership model for connecting some of the
city’s neediest to a network of care beyond an initial hospital stay.
The
healing center is a public-private partnership between the San
Francisco Department of Public Health, Dignity Health, UCSF Health and
Crestwood Behavioral Health.
The
Department led the partnership, and will oversee the center and
contribute $5 million per year to its operations. Dignity Health
contributed the space. UCSF Health contributed $1 million toward
renovations and programming. The program will be run by Crestwood
Behavioral Health, a longtime partner of the city of San Francisco in
providing mental health and addiction care.
“It’s
difficult to find space in San Francisco. We were fortunate to find an
empty space in a hospital, and I’m working right now on the potential
for adding more beds,” Garcia said. “Having the facility on a hospital
campus, individuals are a bit more protected and have access to more
resources.”
Two women are charged with exploiting an
elderly man's pocketbook from their positions as management in a Great
Falls assisted living home.
Jillian Lorrain Davis and Erica T. Lawrence are charged with exploitation of an older and incapacitated person, a felony.
In
October, one of the man's children reported to Great Falls police that
he suffered from dementia and stayed at the Bluebird Assisted Living
Facility. A woman reportedly charged with managing the man's finances
said Davis, house manager of the assisted living facility, had been
using his checking account for medical supplies, cigarettes, snacks and
clothing.
The woman told police that the man's
medical supplies had been paid for by other sources and that he had no
new clothes to show for the money spent.
According
to court documents, the incident that prompted them to visit police
included a $1,000 withdrawal from a Great Falls bank, which Davis said
would be for a new TV. The family reported, however, that the man never
got a new TV.
Great
Falls police reportedly found that Davis had received approximately
$1,967.50 from the man's account between August and October in 2017.
Another $40 check was written to Ken Davis, Jillian's husband and not an
employee at Bluebird, according to reports.
In
addition, Lawrence, a former Bluebird manager, was reportedly received
$2,070 from the man's account between January 2016 and August 2017.
In
speaking with the general manager at Bluebird, police learned the "plan
of care" for the man included conditions that the woman in charge of
his finances would handle the man's money, not the staff. The plan was
signed and filed by Davis and Lawrence, according to court documents.
The
manager also told police that Davis and her husband had reportedly been
caught stealing a flat screen TV from the Meadowlark House, a facility
affiliated with Bluebird. The incident was reportedly caught on
surveillance footage, but they returned the TV and staff never reported
the incident to police, she said.
Meadowlark
manager Laurie Kelly told the Tribune Davis no longer works at assisted
living homes. She said Davis was likely allowed to return to work after
the TV incident because she returned it, but added that there was less
supervision at Bluebird to impose some discipline.
In
October, Davis reportedly stopped showing up to work after a manager
said she wanted to have a meeting regarding some money matters. In
November, officers were able to phone Davis, who said she "did not know"
the man was a dementia patient. Davis was not in custody at her initial
appearance on Monday after posting her $2,500 bond. Her arraignment has
not yet been set.
Lawrence, according to court records, has not yet been arrested on a $2,500 warrant issued in January.
Minister
of National Security, Major General (Ret’d) Edmund Dillon accompanied
by his family members, and attorney Ernest Wilson Esq outside the US
Supreme court in New York yesterday. PICTURE MINISTRY NATIONAL SECURITY
National
Security Minister Edmund Dillon has been cleared of any wrong doing by a
US Supreme Court judge yesterday in a civil matter brought against him.
The judge also ordered that the matter be sealed on the basis that
there was too much negative publicity over the matter in T&T.
Dillon, who left for the US on Monday, made his final appearance
yesterday in a New York courtroom before Justice Laura Vistacion-Lewis.
Dillon was named in article 81 Guardianship proceedings related to
someone he described as a longtime friend, eighty-eight year old Neville
Piper. Dillon was accused of fraud, exploitation and elder financial
abuse.
The issue in question is a valuable downtown Manhattan condominium
which Dillon claimed was gifted to him from Piper. Issues were also
raised about the authenticity of the signatures on the transfer
documents.
When the matter was called yesterday, Justice Vistacion-Lewis ordered
that the matter be held in chambers, a request that was agreed to by
both sides.
She also ordered that the records be sealed.
During the two hour long discussions in chambers, Vistacion-Lewis indicated she was aware of the reporting in this country.
Previously, she had also written to the legal teams involved
expressing annoyance that details of a private matter were leaked to the
press.
Although the matter was held privately, Justice Vistacion-Lewis
authorised the release of one statement as it relates to the
proceedings…that there was no finding of wrongdoing against Dillon. No
further details were authorised to be released about what that means or
the resolution in the matter.
As of today, there will be no more proceedings related, and as such,
Dillon is no longer required to travel to the US for this matter.
In a release issued by the Ministry of National Security yesterday
afternoon, Dillon said he was pleased to report that the court
proceedings in the United States, “with respect to his friend Neville
Piper, has been fully and effectively resolved.”
“The Honourable Judge, ordered that the record of the proceeding be
sealed and restricted, all parties interested in the proceeding from
making any public statements, save and except, that there has been no
finding of wrongdoing against Minister Dillon,” the release stated.
In a previous interview, Dillon said he didn’t see it fit for him to
step down as National Security Minister and made it clear that values
his integrity.
Efforts to reach Dillon for comment proved futile as calls went unanswered and messages went without any response.
More info
Eighty-eight-year-old Neville Piper’s niece, Esther Nicholls made an
application for the appointment of a Guardian for the property in which
it is alleged that based on a power of attorney “on August 21 2017, a
purported transfer of an undivided 50 per cent interest in the Alleged
Incapacitated Person (AIP), Piper’s, condominium was made by Piper to
Dillon and that Piper lacked the capacity to make such transfer
validity, that the purported signature of the AIP on the deed and
transfer documents does not appear to be Piper’s signature; that the AIP
denied ever executing said documents, denied recollection of said
transaction and has stated that he would never have made such a transfer
and that the AIP had no attorney and no guardian for said transaction;
that there were several large transfers and withdrawals from the AIP’s
account which is inconsistent, uncharacteristic and contrary to the
AIP’s history, practice and norm and that the AIP may have been the
victim of elder financial abuse, exploitation and fraud.”
The Court Evaluator’s report states that Piper, who is now at the New
Jewish Home in semi-private room on the second floor, did not recall
any visits by his family members and stated that he hadn’t seen his
niece in years and would not know them if he had seen them.
Consequently on February 15, the court ordered that during the
turnover proceedings and until further order of the court Dillon is
enjoined, prohibited and restrained from transferring any interest in
the condominium unit located at 301 Cathedral Parkway, Unit 8L, New
York, NY, 10026, including any interest which Dillon may claim pursuant
to the Deed dated August 21, 2017, related to said property.
Bruce Thomas and two of his siblings waged a costly court battle for
eight years, alleging that their brother Paul abused his legal power as
their elderly mother's court-appointed guardian and bled her holdings of
$1.1 million.
Paul paid himself for work that wasn't necessary or wasn't done, his
siblings alleged in court filings. They said his self-dealing was an
obvious conflict of interest. On March 21, Orange County Probate Judge
Bernard Lewis effectively removed Paul from control of Miriam Thomas'
finances, though he will continue to act on his mother's behalf on
medical and nonfinancial issues.
Lewis' order says he will replace Paul with a "neutral third party"
who will serve as financial guardian. The order doesn't accuse Paul of
theft, but the judge made it clear that the "sloppy or incomplete"
financial records Paul filed for Miriam's estate made it impossible to
figure out what he was doing with her money.
Although Bruce and his two siblings ultimately got what they were
asking for, Bruce said their long fight illustrates Vermont's weak
oversight of guardians. He is seeking action by the state legislature to
toughen relevant laws.
Attempts to contact Paul for this story were unsuccessful. His
attorney, Frank Olmstead, declined an interview but suggested in an
email to Seven Days that there was more to the story.
"Neither the guardian nor I will address the likely incorrect,
exaggerated and misleading statements about our conduct involving Jane
Doe that have been made by some of her adult children," he wrote, making
a point of not using Miriam's name. He also wrote, "The Probate Court
has not concluded that there has been any abuse or exploitation of Jane
Doe despite years of urging by several of her adult children."
The seeds of the Thomas family dispute were sown more than 10 years
ago. As Miriam's husband's health declined before his death in 2007, her
mental facilities also began to falter, and she granted Paul power of
attorney — legal authority that allows a person to manage finances on
someone's behalf. Power of attorney can be granted without a judge's
approval.
In 2009, Miriam, who had developed dementia and could no longer tend
to her own affairs, moved to the Valley Terrace nursing home in Wilder.
Since then, court records say, Paul has paid himself tens of thousands
of dollars for fulfilling his duties as guardian. Still, he kept shoddy
records and filed them after legal deadlines, Judge Lewis ruled.
When Bruce and his siblings began to suspect in 2010 that Paul was
mismanaging their mother's estate, they went to Orange County Probate
Court to ask Lewis to install Bruce, who lives in Trumbull, Conn., as
their mother's guardian. A guardianship carries authority similar to a
power of attorney, often has broader authority and is assigned by a
judge.
Instead, the judge appointed Paul, who still lived in the family's
Newbury home. From then until his March decision, Lewis presided over a
long and contentious dispute that he characterized in a ruling as a
"family feud," noting that yet another sibling sided with Paul.
Even Paul's handling of his parents' tree farm became a point of
dispute. "Guardian's actions are in violation of the Court's December
12, 2013 order," Lewis wrote in the March decision. "For 2014 and 2015,
Guardian spent $72,000 of estate funds to generate timber proceeds of
$42,000, creating a loss of $29,000. Guardian paid himself $71,000 for
this work."
Bruce said that while Vermont laws to protect elders look good on
paper — requiring guardians to report their activities to the court for
review and giving judges power to remove guardians who don't comply —
more rigorous oversight is needed.
Attorneys and state officials say disputes such as the Thomases' are increasingly common as Vermont's population ages.
"We have counties in Vermont that are reaching over 20 percent of
population above the age of 60 as the baby boomers are aging and dying,"
said Paula McCann, who practices elder law in Rutland. "Our probate
courts are now part time because of budget issues, and they only have a
certain number of staff."
McCann said that situation limits oversight of guardians. The courts
don't always detect the sometimes-complex schemes that defraud older
Vermonters, she said.
The state's other efforts are similarly limited. Adult Protective
Services, the state agency responsible for investigating allegations of
abuse, neglect and financial exploitation of vulnerable adults, has 11
investigators. APS Director Joe Nusbaum said his staff's main job is
maintaining and updating a statewide registry of people against whom
others have made substantiated allegations of abuse. Employers such as
hospitals and nursing homes use it to vet potential hires.
Nusbaum said his investigators stay busy.
"We receive about 3,000 to 4,000 reports to Vermont APS a year," he
said. "And from those reports, we open about 1,000 to 2,000
investigations."
Many involve allegations of mishandled money.
"Financial exploitation is the largest percentage of cases that we
deal with, and it is also the fastest growing," he said. "It's only
getting larger."
Seniors in nursing homes and other group settings have the protection
of the Vermont Attorney General's Office's federally funded Medicaid
Fraud and Residential Abuse Unit. Its prosecutors regularly get cases
alleging theft by a guardian or a family member with power of attorney.
Steve Monde, an assistant attorney general in the unit, said it
handles about 12 cases of financial exploitation every year, though not
all end up in court. Part of the difficulty in working these cases,
Monde said, is the close relationship between the victim and the accused
thief.
"There's a lot of gray areas in these [power of attorney] agreements,
and an individual's often given a great deal of latitude over making
judgments about finances, so it's very hard to say, 'OK, where's the
line and when was it stepped over?'"
Sometimes it's pretty obvious when the line has been crossed, as in a
case involving a client of Rutland attorney McCann. She recounted
walking into her office one Monday morning after a ski vacation.
"And I get a phone call from this client, and he's a wreck — just yelling at me that all of his money's gone," she said.
It was. The client had been working with Donah Smith, an employee at
ARC (Advocacy, Resources, Community), a Rutland community organization
that helps manage seniors' government benefits. Smith handled a number
of clients' bank accounts, and McCann, acting on behalf of her client,
gave Smith power of attorney so she could do the same for him.
According to the Federal Bureau of Investigation, between 2008 and
2010 Smith drained thousands of dollars from the accounts she managed to
pay her personal expenses. Smith was sentenced in 2011 to two years in
prison for federal mail and wire fraud.
"I thought I had vetted her," McCann said.
Since then, McCann has made it a personal mission to prevent her
clients and other elderly Vermonters from having their money or credit
stolen by people in positions of trust. More than once, McCann has
investigated cases and brought findings to the FBI. She doesn't bother
going to probate court or to local law enforcement.
"I'd love to tell you that this is a civil matter, in civil court —
that we can take care of things. We can't," she said. "If cash has been
stolen, you need to get the case criminal as fast as you can. And it
frankly needs to go to the FBI because the feds are the only ones who
can quickly freeze and then seize assets."
McCann said she works quickly to find a "federal hook" in elder
exploitation cases. Sometimes the stolen funds are federal benefits,
which puts a case in the feds' jurisdiction, she said.
McCann said many cases are a straightforward matter of stolen money,
but others are more creative. In one instance, she said, a man got
elderly Vermonters — including a client of hers — to co-sign for more
than $105,000 in student loans. He had no plans to pay back the loans,
though, and left the elderly Vermonters holding the bag.
"It was a mess," McCann said.
McCann's approach to preventing situations like the Thomases' is to
encourage transparency. Often, she said, that's as simple as crafting
the right legal documents and then holding a family meeting to explain
what will happen when the client dies or becomes unable to care for
himself or herself.
"That way the elder has, at one time, with all of their people
present, expressed their wishes," she said. "And if we can do that ...
then chances are we're not going to have any disputes. Because everybody
heard Mom or Dad say, 'This is the way it's going to be.'"
Bruce and the siblings who sided with him want Vermont to make
situations such as theirs easier to address once suspicions arise. They
thought they had all the proof they needed and that their brother's
missed filings and alleged self-dealing should have led to his removal
as guardian, Bruce said. Despite their multiple filings, Judge Lewis
declined to do so until last month.
The judge blamed their side for some of the legal delay — and in 2017 ordered the matter to mediation, which failed.
Bruce and two siblings made repeated requests before Lewis allowed
them to look through the estate's records. Bruce said they could have
saved some of their mother's money if they'd had access sooner and that
the case shouldn't have taken years to resolve.
"Vermont has many laws that are designed to protect wards in a
guardianship situation," Bruce said, "but it gives probate courts far
too much discretion in whether or not to enforce the laws."
Lewis did not respond to requests for comment for this story. A voicemail message at his office said he is on medical leave.
Bruce and his siblings who joined him in the court case have already
spoken to Rep. James Masland (D-Thetford), who represents Miriam's
district. Masland told Seven Days he hopes to introduce legislation next year to address their concerns.
Masland would like to give family members the legal authority to view
an estate's financial records and to mandate that guardianship records
be kept for 10 years to provide a clear picture of an estate's
management.
Sen. Dick Sears (D-Bennington) and Rep. Maxine Grad (D-Moretown) chair
the Senate and House Judiciary committees, respectively — key panels
for any reform to Vermont's guardianship laws. Both told Seven Days that they're willing to have a discussion about guardianship reform in their committees.
Bruce hopes for action. "When you recognize that there's a problem and
that the current laws aren't sufficient to deal with it, you have to do
something," he said.
INDIAN RIVER SHORES, Fla. - Two Vero Beach women, who are former
certified nursing assistants, are in jail for stealing more than
$500,000 from elderly people they cared for in Indian River Shores.
“Here
locally, this is probably one of this biggest ones that we’ve seen.
That’s a lot of money,” said Indian River Shores Police Officer Albert
Iovino.
Chiquita McGee and Sophia Shephard (AKA Sophia Brown) were
arrested Tuesday on charges for exploitation of the elderly, organized
fraud and scheme to defraud a financial institution.
Indian River
Shores police say the duo convinced two elderly patients to open credit
cards under McGee and Shephard’s name, linked to the victims' accounts,
with an unlimited credit line.
Police said the pair purchased
personal items, such as cosmetic dental work, plastic surgery, cruises,
expensive jewelry, clothing, an engine for one of their cars, exotic car
rental (a Rolls-Royce Ghost for five days at $995.00 per day), hotels
in various Florida cities, and they paid a fine out of St. Lucie County.
Police
said the total amount for all fraud related to the case is at least
$543,973. The pair also fraudulently obtained checks from the victims,
police say.
The women were self-employed, and contracted by Indian
River Home Care Plus, according to the home health care company’s
owner, Margot Kornicks, RN.
Kornicks released the following statement to WPTV:
The charges against Chiquita McGee and Sophia Shepherd
are incontestably serious, and elderly exploitation is both deplorable
and intolerable. Indian River Home Care (agency) and Indian River Home
Care Plus (nurse registry) stand behind this statement, and we will and
always have vetted both our employees and our contractors to the upmost
degree, according to Florida state statute.
The contract with McGee and Shepherd was terminated on Nov. 16, 2017,
due to unprofessional behavior including using abusive language toward
staff members and forging hours. At that time, we did not know about the
fraud.
We learned of the fraudulent actions from the family at the end of
November, and immediately reported the illegal activity to the
authorities. Our commitment to our clients is steadfast, and we
unwaveringly support our patients, their families and this community.
Lovino offered advice for anyone needing home health care for a loved one.
“You
have to advocate for your loved ones. Follow up with these people. Find
out as much as you can about the home health agency that’s providing
the care. Spend the first three or four visits with the healthcare
individual,” Lovino said.
He also said you can talk to your loved
one about obtaining power of attorney to help track your loved ones
expenses, and credit accounts.
McGee and Shepherd are being held in jail without bond and have a court appearance Wednesday.
INDIANAPOLIS — A new online registry that aims to protect elderly
people and others in Indiana from being financially exploited by their
court-appointed guardians is now being used by courts in more than half
of the state's counties.
The registry helps courts monitor guardianship cases, while
providing limited public access to further help protect people who are
unable to manage their personal and/or financial affairs, The (Northwest
Indiana) Times reported.
"There's a lot of positive benefits for something like this," said Lake County Superior Court Judge Diane Kavadias Schneider.
Porter County Superior Court Magistrate Mary DeBoer said
court reviews of guardianship cases ensure that a protected person's
funds are being used appropriately.
"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," DeBoer said.
She said the registry also helps the courts keep track of
statistics related to their guardianship cases. DeBoer estimated that
the number of cases will increase as baby boomers age.
She said the idea for the registry was created by herself
and the other members of the Indiana Adult Guardianship State Task Force
several years ago.
Erica Costello, a staff attorney at the Adult Guardianship Office at the
Indiana Office of Court Services, said 56 of Indiana's 92 counties are
currently taking part in the voluntary registry.
Those in hospice will often be separated from their pets during a time when they need them the most.
Additionally, they have to worry about who will care for their dog
when they are no longer able and who will adopt them when they pass on.
“I know of countless patients who have said that their
pet is their lifeline. Pets are great medicine for coping with the
anxiety the comes from dealing with a serious medical condition,” Pet Peace of Mind president Dianne McGill said.
“For many patients, keeping their pets near them during the end of
life journey and finding homes for their beloved pets after they pass is
one of the most important pieces of unfinished business.”
Pet Peace of Mind makes sure that terminal patients don’t have to worry about these matters in their final days.
They also make sure that their furry friends will be close by.
“The Pet Peace of Mind program provides nonprofit
hospices with a turnkey approach to help them train volunteers to help
patients with their pet care needs, provides seed funding to get the
program off the ground, and offers advice and assistance for the life of
the program. People have come to bond with their pets in much the same
way they bond with people,” their Facebook page reads.
“Pets are treated and loved like family members and they
comfort their owners much like a close friend or relative. It is no
wonder then that during the end-of-life journey, pets can play a
critical role. Unfortunately, as families deal with grief and loss
during hospice care, pets may be overlooked, forgotten, or even ignored by family members unfamiliar with the patient’s bond with a pet.”
The organization runs on donations and volunteers who do all sorts
of things from playing fetch with a sick person’s dog, making sure they
are groomed, and re-homing them when their owner passes away.
“We had all seen things happen where the patient was in
their ending days, and they were so concerned about what was going to
happen to their pet, and the family would say, ‘It’s OK, we’ll take care
of it,’ and then the patient would die and the dog was off to the
pound,” said Karen Jeffries, volunteer coordinator for St. Luke’s
Hospice, told U.S. News and World Report.
But that was before the hospice began to partner with Pet Peace of Mind.
Now pet owners can pass away peacefully knowing their dogs will be taken care of.
“The social worker said, ‘Oh, Karen, you’re going to have
to rehome all five of these.’
The man is in 80s, can barely take care
of himself let alone the dogs,” Jeffries recalls.
“On his deathbed, he
signs his dogs over to me.”
“I said, ‘I promise I’ll give them all a good home.’ It took a while,
but eventually, each of the dogs went to a new family. That was a real
labor of love. He wouldn’t have rested peacefully if he didn’t know
those dogs had gone somewhere.”
You can learn more about Pet Peace of Mind at petpeaceofmind.org and in the video below.
MARK C. PSORAS / For The InquirerHeidi
Austin, with her father, Josef Wituschek, displays a photo of guardian
Gloria Byars from Byars’ Facebook page during an interview last year in
Wituschek’s home in the Fox Chase section of Philadelphia.
Relatives of Edmund and Margareta Berg were shocked to learn, a
little more than a year ago, that the court-appointed guardian handling
the Fox Chase couple’s finances had a record of fraud, bad checks, and
forgery.
Around that time, Marie Frisby
began questioning the guardian appointed to help her husband, Hank. They
contend that his bills weren’t being paid and, as a result, they had to
sell their home in Wyncote, Montgomery County.
Meanwhile, Nu Vuong, a
naturalized U.S. citizen who doesn’t speak English, had been moved by
her guardian from her Kensington home to a Delaware County nursing
facility where no one spoke her language.
In each case, the guardian was the same woman, Gloria Byars of Aldan, Delaware County.
Questions about Byars’
financial management led judges to remove Byars last year as guardian of
the Bergs and Hank Frisby. She has since been removed from about 100
cases in Philadelphia, Montgomery, and Delaware Counties.
The experiences of the Bergs, Frisby, and Vuong demonstrate how
well-meaning relatives can be swept away by a guardian who may not be
acting in a person’s best interests. And Byars’ criminal record
underscores what some advocates say is a broader issue: a lack of
oversight in a beleaguered system responsible for caring for thousands
of often elderly Pennsylvanians.
“We
do have a crisis with professional guardians,” Philadelphia Orphans’
Court Administrative Judge Matthew Carrafiello said at a February
hearing at which he ordered Byars removed from all her remaining
guardianships. “We just don’t have enough.”
Nationwide,
guardians oversee an estimated 1.3 million adults and $50 billion of
their assets, said Brenda Uekert, principal court research consultant at
the National Center for State Courts. And as the population ages, the
demand for them is likely to grow.
In
Philadelphia, about 6,800 adults are under guardianship care, many of
whom are overseen by family members. Five lawyers also regularly serve
as guardians, and others on an occasional basis, as well as about 17
non-attorney professional guardians, like Byars.
Any interested person or agency may petition a court to
appoint a guardian. A judge then holds a hearing to determine if the
person is “incapacitated” — unable to manage his or her own personal or
financial affairs. Once appointed, a guardian is paid through that
person’s assets or income. Their fees vary: Some could charge $100 an
hour, observers say, but they also could make much less overseeing a
poor client’s finances.
Guardians
must file with the court regular reports of the assets, income, and
expenditures they manage. But otherwise, they are generally left alone.
The
only legal requirement to become a guardian in Pennsylvania is the
ability to read and write in English. And that in turn opened the door
to applicants like Byars.
Philadelphia
judges appointed her to 93 cases from 2015 until last summer, in most
cases based on a recommendation by the Philadelphia Corporation for
Aging. The nonprofit, which provides home care to more than 21,000 and
helps thousands more through its tip line, is supposed to act as a
watchdog for the city’s most vulnerable citizens.
But
an attorney for the agency told a judge at a hearing last year that PCA
did not know about Byars’ convictions for fraud and bad checks — a past
that a simple Google search would have uncovered.
Abbey
Porter, an agency spokeswoman, declined to discuss why PCA had
recommended Byars and whether the agency had conducted a background
check. She wrote by email that PCA is “aware of the complexities and
challenges of the guardianship system, including the ‘vetting’ of
guardians.”
Byars,
57, has not been charged for her role in any guardianship cases. She
repeatedly has declined to speak to the Inquirer and Daily News, when
approached in person or through phone calls and letters left at her
office and home. Lawyers representing her also have declined to comment.
Diane
Menio, executive director of the Center for Advocacy for the Rights and
Interests of the Elderly (CARIE), in Philadelphia, said Byars’ record
shows agencies and courts need more due diligence in choosing guardians.
“Someone
convicted of financial crimes is certainly not someone who you want
managing an incapacitated person’s finances,” said Menio. “This whole
thing is based on trust.”
‘Unbelievable’
Court
records show that in 2005, Byars was charged in Virginia
with defrauding several people by using their discarded credit-card
convenience checks, fished out from post-office trash cans. She pleaded
guilty that October and was later sentenced to 37 months in federal
prison and ordered to pay $29,503 in restitution.
After
completing her term in December 2007, which included stints in a
halfway house and on home confinement, Byars, who had once lived in
Camden, moved to Delaware County. Her supervised release, which ended in
December 2010, barred her from working in a job that required her to
handle money or have access to financial accounts.
At some point, she began working for Robert Stump, a guardian and owner of RES Consulting in Havertown. According to one LinkedIn account, she worked there from 2008 to 2016. Stump did not return calls seeking comment.
The
same LinkedIn account says Byars received an associate of arts degree
in business administration from Kaplan University in 1981. A spokeswoman
for Kaplan, headquartered in Chicago, said the university, which offers
online courses, has no record of Byars’ taking classes.
In 2016, Byars branched out on her own, opening Global Guardian Services in Lansdowne, Delaware County.
That
Dec. 6, Byars was appointed guardian for the Bergs, upon PCA’s
recommendation. The couple, both in their 80s, didn’t want to leave
their house on Borbeck Avenue, which they bought in 1961, relatives
said.
But
in late December, Margareta Berg was discharged from a hospital and —
without the knowledge of her brother, Josef Wituschek — moved to a
Montgomery County rehab facility. A panicked Wituschek and his daughter,
Heidi Austin, then tried to call Byars, only to learn that she was in
Spain, they said.
That
January, Byars moved the Bergs into a Montgomery County nursing home,
then in February 2017 had their Fox Chase house cleaned out to sell it.
An
accounting filed by Byars last year said she collected $4,487.50 in
guardianship fees from the Bergs from January to July, a sum that
consisted of monthly fees of $100 or $200, plus $2,000 for her to
oversee the two-day cleanout of their house. (It’s unclear how much she
made from all of her guardian cases, but court records show that she
finally paid off her restitution in the federal fraud case by February
2017.)
After Byars sought court approval to sell the house, Wituschek hired a
lawyer. Attorney Daniel McElhatton learned that the company Byars had
hired to clean the house, DEPCO LLC, was owned by Byars’ husband, Leon
DeShields.
Mark C. Psoras / For The Inquirer
Heidi
Austin displays a photo on her phone of her aunt and uncle,
Margareta
and Edmund Berg, as her father, Josef Wituschek (center),
stands with
her. At right is Wituschek’s attorney, Daniel McElhatton.
The
lawyer says he found it “unbelievable” that Byars didn’t disclose the
conflict of interest. He opposed the sale of the house and an $11,000
payment to DEPCO, alerted Orphans’ Court Judge John Herron to Byars’
criminal convictions, and asked the judge to remove her as guardian.
At
a hearing in July 2017, Herron scolded Byars for failing to disclose
the conflict and for not getting his approval to pay DEPCO. “It was
self-dealing and should not have happened, and it should be refunded
immediately,” the judge said.
McElhatton
also questioned thousands of dollars in other withdrawals Byars had
made from the Bergs’ accounts. Byars said she paid $5,000 in cash to the
Bergs’ nursing home, but didn’t get a receipt – a step Herron called
“negligent” and “reckless.”
Herron
ordered Byars removed as the Bergs’ guardian and as guardian of 31
other active cases. He appointed Wituschek as successor guardian for the
Bergs. Wituschek had previously not been able to serve because he was
mourning the death of his wife.
Byars
has since reimbursed the Bergs the $11,000 paid to her husband’s
cleaning company, $5,200 for an unexplained cashier’s check she wrote
from their account, and an additional $900 she collected from an auction
of valuables from the cleanout of the Bergs’ house. The family is still
questioning other expenses and items they suspect are missing.
At
the July hearing, Byars’ then-attorney Robert Feliciani III, said she
had 113 active guardianships, mostly in Philadelphia and Montgomery
County.
Sam
Brooks, an elder law attorney at Community Legal Services of
Philadelphia, said other professional guardians at times carry caseloads
as large or larger. A manageable caseload is closer to 40, he said, but
to make a profit, guardians deal in volume, he said.
“There’s
no money in it, for the most part, unless you have a person who’s
incapacitated who has a substantial estate,” said Menio, the advocacy
center director.
Guardians
can still make money from low-income clients. They are assured $100 a
month if the person is in a nursing home and receives medical
assistance. They also can petition the court to sell a person’s house,
then request compensation from the sale.
Billed for a birthday party
Hank
Frisby was a Philadelphia police officer from 1960 to 1980, rising to
the rank of sergeant. He then served full time in the Pennsylvania Air
National Guard, and later in Montgomery County’s human resources
department.
In
early 2016, though, he was separated from his wife, Marie. After a
nurse who was taking care of him at his Wyncote home suspected he was
being abused by a relative, the nurse contacted the Montgomery County
Office of Aging and Adult Services.
That
March, Montgomery County Senior Judge Stanley Ott deemed Hank Frisby
incapacitated after finding that he suffered from dementia and had
problems paying his bills. The Office of Aging had recommended Stump’s
company, RES Consulting, and Byars, who at the time was still working
for Stump, was appointed his guardian, court records show.
While
the Frisbys agree that his finances weren’t in the best of shape, they
say that in the ensuing months, Byars didn’t pay his mortgage,
real-estate taxes, or income taxes.
But
she threw him a birthday party. In June 2016, he was invited to a party
that Byars threw for him and other clients at her home. The party
included an ice cream truck, a live band, food, alcohol, and boxes of
sheet cake, including one for him, Hank Frisby said.
“I didn’t know anybody there,” Hank Frisby, now 79, said in an interview. “I stayed a couple of hours and left.”
He thought it was nice, he said, until he later saw a $750 charge on his account for being at the party for six hours.
Later
that year, the Frisbys reunited, and Marie Frisby realized the state of
his finances. In December 2016, their house was targeted for
foreclosure.
Julie Shaw/Staff
Hank and
Marie Frisby in March 2018 in their Philadelphia apartment, where they
moved after having to sell their Montgomery County house.
They sold the house in May, then moved to the River Park section of Philadelphia.
Marie
Frisby, 70, said she has seen no indication of how Byars spent her
husband’s pension checks, totaling $80,000 a year, to his benefit —
except once, when she bought a stair lift for him at the Wyncote house.
She also said Byars wouldn’t let her see her husband’s bank statements.
“We had no charges about how much she paid anybody, just her fees on what she charged us to do for us,” she said.
Concerned,
she had filed a petition in court to have Byars removed as guardian,
contending Byars was failing to pay her husband’s bills. With the help
of a lawyer, Diane Zabowski, the Frisbys got Byars replaced as guardian
in June.
State
Sen. Art Haywood, the Democratic minority chair of the Aging and Youth
committee, said Thursday that Marie Frisby will be meeting April 5 with a
staffer in his office to see if there is any recourse for her husband.
Haywood, a former Wyncote neighbor of the Frisbys, said he found it
“outrageous” that they had to sell their home.
Haywood,
who represents parts of Montgomery County and Philadelphia, said his
staff is looking into the process of how guardians are appointed and
removed.
‘My mom is not a prisoner’
Vuong’s
son, Hue Quach, experienced similar outrage. On May 26, 2016, Byars was
appointed Vuong’s guardian. A week later, she transferred Vuong, then
73, to a Delaware County nursing home without telling her son.
Courtesy of family
Nu Vuong
“Not
only did she put my mom in this [nursing home] without telling me, she
prohibited me from going in and seeing my mom” without Byars’
permission, he said in an interview.
Quach
said his mother cried when he was allowed to visit her because no one
in the nursing home could understand her — she speaks Vietnamese and
Chinese.
He said he told Byars: “‘My mom is not a prisoner. She did nothing wrong.'”
Quach
then petitioned the court to be his mother’s guardian. At a July 2016
hearing, Judge George Overton appointed Quach co-guardian. Quach then
moved his mother to a South Jersey nursing home that has staff and
residents who speak Chinese.
Byars has since been removed from that case — and the others in surrounding counties.
The
final two removals came March 20 in Delaware County. The Orphans’ Court
clerk there, Mary Walk, said the office began reviewing Byars’ cases
after learning about her removals in other counties, but found no
evidence of malfeasance in the two cases.
At
the February hearing, Carrafiello, the Philadelphia Orphans’ Court
administrative judge, had said he was unaware of any malfeasance in
Byars’ caseload in his court. But he stripped her from the cases because
he concluded she was no longer up to the task of being a guardian.
Montgomery County officials declined to discuss why she was removed from cases there.
Calls for improvement
Unlike 18 other states, Pennsylvania does not require professional guardians to undergo criminal background checks.
A state Supreme Court Elder Law Task Force had
in November 2014 recommended that all guardians be required to undergo
criminal background checks in a wide-ranging report that examined
problems in the guardianship system, issues of elder abuse and neglect,
and access to the justice system for elders.
That decision would fall to the state’s Supreme Court justices. The court’s Orphans’ Court Procedural Rules Committee at
an April 20 meeting will be considering the issue of instituting
background checks, said Northampton County Orphans’ Court Judge Emil
Giordano, a committee member. His county already bars felons from
serving as professional guardians.
State Rep. Mark
Gillen (R., Berks) said in a March 23 interview that he soon would
introduce a bill requiring criminal background checks for prospective
guardians and prohibiting felons from serving.
Other legislators
also have been trying to improve the system. State Sen. Stewart
Greenleaf (R., Montgomery), chairman of the Judiciary Committee, last
year reintroduced a bill that would, among other things, require court
approval for any guardian fees.
Keelin S. Barry, a
Philadelphia lawyer who served on the task force and whose office
provides guardianship and elder law services, said “there is a huge
shortage” of people willing to serve as guardians, but a great need.
“The elderly population
has exploded,” said Barry, who was appointed to replace Byars as
guardian for Hank Frisby. “And people who in the past would have taken
care of their older family member, now have moved across the city or
across the country and are not able to take care of that person
anymore.”
Georgia lawmakers this year handed seniors and their advocates
several victories in their fight against the growing problem of elder
abuse. Among them are tougher background checks for caretakers and a new
statewide elder-abuse registry.
A new law will require employees
with direct access to residents in nursing homes and other licensed
senior care communities to clear an FBI fingerprint background check.
The measure will help home care providers find out if applicants have
been abusive in previous positions, and weed out current employees with a
history of abuse.
That information will be put on a statewide elder-abuse registry so
that anyone wanting to hire a caretaker can check the database.
The
measure won’t kick in until 2021, giving elder-care facilities three
years to complete comprehensive background checks on current employees
and set up the procedure for new hires. The registry will be created
immediately using a federal grant.
Advocates for the aged have long wanted to create a registry to
prevent the hiring of caretakers with a known history of abusing
vulnerable adults.
“There’s certainly room to improve it after
it’s in place, but it’s a great start just getting the comprehensive
background checks,” said Kathy Floyd, executive director of theGeorgia Council on Aging.
Currently,
licensed care facilities are required to conduct a limited one-state
and one-name background check on employees. The tighter scrutiny would
close loopholes and catch offenders from other states or those who may
have changed their name.
Georgia is one of only a few states that
doesn’t already mandate fingerprinting, said Heather Strickland,
assistant special agent for at-risk adults for theGeorgia Bureau of Investigation.
“This will certainly help and make sure those working with the elderly don’t have a past history of abuse,” Strickland said.
Advocates
for the aged made elder abuse and the registry top legislative
priorities this year. Vicki Johnson, chair of the Georgia Council on
Aging, called the outcome “a great victory for seniors.”
“Both the
council and CO-AGE have worked over the years to ensure that older
adults, disabled persons and other vulnerable populations are safe and
protected from exploitation,” Johnson said.
Lawmakers, lobbyists, staff, and members of the public fill the
three floors of the Georgia State Capitol during Legislative Day 40 ... read more
The state’s senior population, at 11 percent now, continues to grow. And with it has been an explosive growth in elder abuse.
Since
2010, reports of elder abuse have increased 550 percent, according to
the Georgia Council on Aging. Yet only a small portion of these crimes
are ever reported, said GBI Director Vernon Keenan.
Nationwide,
it’s estimated that one in 10 older Americans are victims of elder
abuse, neglect or exploitation, and that for every case of elder abuse,
23.5 cases go unreported, according to theNational Center on Elder Abuse.
For
the past five years, state legislators have increased funding for Adult
Protective Services caseworkers, hired additional GBI agents to focus
on elder-abuse crimes, and set aside funds for an elder-abuse attorney
to prosecute cases. Lawmakers have also increased training for law
enforcement through the Division of Aging and stiffened penalties on
unlicensed personal care homes.
Protecting the elderly. (Photo: Bita Honarvar/AJC)
Two other bills to combat elder abuse were also passed by lawmakers
this year. One is a trafficking bill that will crack down on personal
care home operators who prey on elderly and at-risk adults in need of
housing. In many cases, these adults are forced to live in substandard
housing in exchange for turning over all of their Social Security
benefits or other financial allowances, Floyd said.
Another bill
passed will allow for better coordination and communication between law
enforcement and Adult Protective Services on sensitive abuse cases. The
goal is to have multidisciplinary teams working together to form an
elder-abuse task force in each judicial district.
ENGAGE with CO-AGE
Georgia Council on Aging volunteers will host meetings in communities
across the state April 16-20 to share updates from the legislative
session and discuss upcoming senior issues.
I serve on the bipartisan Legislative Audit Commission, which helps
select audits and evaluations of state government programs. Last fall,
reports of elder abuse flooded the media in Minnesota. As a result, an
audit was recently completed, evaluating the Office of Health Facility
Complaints that exists under the Minnesota Department of Health’s
umbrella. Alarmingly, the report found that between 2012 and 2017, the
number of maltreatment allegations increased by more than 50 percent.
This is unacceptable and requires serious action from the Legislature.
The House majority has introduced legislation that would create
multiple work groups to further discuss the problem; my concern is that
it doesn’t take needed action.
Several DFL colleagues and I have sponsored bold legislation in step
with Gov. Dayton that will strengthen and expand the rights of older and
vulnerable adults and their families; enhance criminal and civil
enforcement rights; create new licensing frameworks for assisted living
and dementia care across residential settings; and improve licensing
regulation and the investigative and reporting process.
These measures are built upon recommendations from AARP and the office of the Legislative Auditor.
Minnesota seniors have given so much to our communities and state.
It’s our responsibility to ensure they are safe and live with dignity
and security throughout their life.
With a new law taking effect July 1, the state Supreme Court has
appointed a rules committee to get down to the details of reforming the
state’s adult guardianship system – but the group’s composition is
drawing criticism for including guardianship professionals but excluding
critics and family members of incapacitated people.
Of the 22
people who applied to serve on the rules committee, the Supreme Court
appointed eight members – two judges, five attorneys and a professional
court visitor who advises judges in guardianship cases. The court
visitor was the sole non-attorney appointed.
“Having seen the
list, it looks like more of the same going on with the courts,” said
Emily Darnell Nunez of Albuquerque, whose family was embroiled in a
controversial guardianship case, beginning in 2010. “Some of these
people make their living out of being attorneys for guardianship cases.
So it looks like insiders.”
One non-lawyer who applied, but wasn’t appointed, is Jorja
Armijo-Brasher, former director of the city of Albuquerque’s Department
of Senior Affairs. She has been a vocal critic of the current system and
served on the guardianship commission appointed by the Supreme Court to
recommend improvements. That commission’s work ended Jan. 1, with a
slate of reforms proposed.
“The hope was when it (the rules
committee) went forward that there was potential and there would be some
real scrutiny of the processes and procedures being used,”
Armijo-Brasher said last week. “There’s always the concern when the
people working for that industry may be the only ones looking at
themselves. It is hard to always look at yourself without having other
eyes to help you see clearly.”
Chairing the rules committee is
Gaelle McConnell, an Albuquerque lawyer, who also served the Supreme
Court commission last year. McConnell has a background in guardianship
and conservatorship law.
The judges appointed are both from
Albuquerque: Shannon Bacon, who has openly advocated change in
legislative hearings, and Nancy Franchini, also a member of last year’s
Supreme Court guardianship commission. Other members include Sarah
Steadman, a professor at the University of New Mexico Law School, Alice
Liu McCoy, a lawyer with Disability Rights New Mexico, and Mary H.
Smith, a former assistant attorney general, who most recently worked for
the state’s Office of Guardianship, which provides legal guardianship
services to low-income incapacitated people.
The list also
includes longtime Albuquerque attorney Ruth Pregenzer, who has
specialized in elder law, probate and guardianship matters; and Mary
Galvez, who has frequently worked as an appointed court visitor in
guardianship cases.
Pregenzer, who said she no longer takes new
guardianship cases, said in an interview Thursday that she understands
concerns raised by critics.
“This (rules committee) is hard work.
I’m not saying anybody can’t do it, but it doesn’t hurt to have some
knowledge of the law, and some knowledge of the area of law that you’re
being asked to prepare rules for. I don’t think that because I have
expertise in this area that I represent the status quo.”
She also said the public will be able to comment on the proposed rules before they are adopted by the Supreme Court.
The rules committee work is considered especially important in view of this year’s legislative session.
The
Senate bill that passed and goes into effect July 1 addressed several
key concerns raised by advocates: more transparency in the now closed
legal system by which incapacitated people are appointed guardians; more
notice to family members of court proceedings; requiring financial
bonds for professional conservators; and allowing greater visitation by
relatives and others.
But other proposed legislative reforms were
put on hold at the urging of the judiciary. Some see the rules committee
as a vehicle for additional change without the need for legislation –
although some say the committee could conceivably propose rules to limit
the impact of some of the changes.
“I don’t know what direction
this is going now,” Armijo-Brasher told the Journal last week. “Is it
going in the direction we had hoped?”
Important work
The Supreme Court commission last year recommended the formation of the rules committee, and eight possible rules. They include:
• Requiring mediation in contested cases.
• Requiring national certification for professional, guardians and conservators.
•
Addressing the court practice by which the petitioner’s attorney can
“stack the deck” in favor of a guardianship by recommending to the judge
who should serve as guardian, guardian ad litem, court visitor and the
health care expert.
Critics have challenged whether appointed
professionals are really working for the best interest of a protected
person or family when it is the petitioner’s lawyer who has recommended
their hiring.
Darnell Nunez served on the Supreme Court
guardianship commission last year. She decided not to apply to serve on
the rules committee, but she said it has the potential to make important
changes.
“These (protected people) aren’t criminals we’re talking
about. We’re talking about elderly people who are sick. Ordinary people
who have lived good lives, who don’t deserve to have the fleecing of
them at the end. Is this rules committee going to be the rules committee
that creates the changes needed to make the guardianship system fairer
and right for our elderly population?”
Both Pregenzer and Galvez
were involved in the high-profile guardian/conservator case involving
the mother of Emily Darnell Nunez, Corrales resident Blair Darnell. As
profiled in a Journal series in 2016, most of Darnell’s adult children
were highly critical of the closed guardian/conservator process and the
fees charged by the professionals appointed to make decisions for
Darnell’s care and her finances.
Both Pregenzer and Galvez also
testified last May before the Supreme Court guardianship commission,
chaired by retired District Judge Wendy York.
During her
appearance, Pregenzer defended the professionals who are appointed on
the recommendation of the person seeking the guardianship for an
incapacitated person. Many petitions for guardianship aren’t contested
by family members of others, but some are.
“Regardless of who
nominates them to serve in these roles, (they) take their position very
seriously,” Pregenzer told the commission last year. “Rather than rubber
stamp any particular position put forth in a petition, they do their
own independent investigation and try their best to provide helpful
recommendations to the judge who has to make one of the most difficult
decisions a judge can make.”
But the final report of the
guardianship commission cited other testimony from “several commenters
that the current system allows the petitioning attorney to ‘stack the
deck’ in the petitioner’s favor. The Commission strongly believes that
this practice should be avoided due to the potential of a conflict of
interest.”
Some other states randomly select guardian ad litem
attorneys for the alleged incapacitated person. In California, a court
staff investigator also reviews petitions and advises the judge.
In
New Mexico, there’s no court rule requiring the petitioner’s attorney
to recommend appointees, but the practice has been described as a
“convenience” for judges. The professionals who advise the court are
paid from the protected person’s estate if a guardianship is granted.
In
her testimony to the commission last year, Pregenzer said that more
transparency would allow professionals to respond when family members
publicly criticize their actions.
Under current law, when
guardians or attorneys are “hammered” by criticism, Pregenzer said they
cannot explain their decisions, because the cases are sequestered. Yet,
she told the commission, “family members can explain their position to
the news media.”
“I’m not against reforms,” she told the Journal
last week. She said the new guardianship law’s mandate for open hearings
“is going to help provide a more balanced view of the process, and
heaven knows there are problems with the process.”
Powerful
Once
appointed, guardians and conservators have virtual carte blanche over a
“protected person’s” life and financial decisions, and can dictate
whether family members will be allowed to have contact with them.
Top
managers in one now-closed Albuquerque-based guardianship firm have
been indicted on federal charges alleging they stole millions of dollars
from their New Mexico clients. The firm had been appointed in hundreds
of cases.
There has been widespread criticism, here and
nationally, that protected people under some guardianships or
conservatorships are being isolated and their funds mismanaged.
The
Journal reported recently that required annual reports guardians and
conservators are supposed to file with the court about the welfare and
finances of the “protected person” in their care were missing in dozens
of cases in southern New Mexico alone.
Moreover, the courts don’t
have the computer capability to say with certainty how many people in
New Mexico are currently under a guardianship or conservatorship.
Steering committee appointees
In a related action, the state Supreme Court also announced the
appointment of a separate steering committee to recommend how best to
use a $1 million appropriation from the Legislature this year to help
enact guardianship reforms passed in SB 19, which take effect July 1.
That committee includes the bill’s sponsor, Sen. Jim White,
R-Albuquerque; and Rep. Daymon Ely, D-Corrales; along with state Auditor
Wayne Johnson; Leslie Porter, cabinet director for Gov. Susana
Martinez; state District Judges Shannon Bacon, Nancy Franchini, both of
Albuquerque; James T. Martin of Las Cruces; David Thomson of Santa Fe;
and Louis McDonald, whose district covers Sandoval, Valencia and Cibola
counties. Three staff members from the Administrative Office of the
Courts will serve as non-voting committee members.
