Saturday, April 21, 2018

New York Lawyers’ Fund $10.6 Million in Payouts Mostly Due to Handful of Lawyers

Every state has its own version of a fund that lawyers pay into that serves to protect clients from those who mismanage funds, according to New York’s version is the Lawyers’ Fund for Client Protection. The number of claims being filed with the fund has been growing, with 2017 being the second-highest single-year payout since the fund was created 35 years ago.

The paid claims for financial losses by lawyer misconduct was at $10.6 million last year. The fund, an independent public trust, is mainly financed by attorney registration fees. The fund reimburses clients for the “losses caused by dishonest conduct of former New York State lawyers,” including theft of estate assets, settlement proceeds, and real estate escrow funds, in addition to unearned legal fees paid to an attorney who falsely promises legal services.

The payouts from last year largely went to cover misconduct by a handful of attorneys. This includes $1.3 million for Marc Dreier’s Ponzi scheme with fake promissory notes and the embezzlement of client funds, $2.8 million for personal injury lawyer Stuart Schlesinger’s theft of settlement money and $400,000 for Michael Lippman’s theft from various real estate and estate planning matters.

The highest payout year was 2015 when $12.3 million was given out. In total, the 2017 funds covered 87 now suspended, disbarred or deceased lawyers. Of those, 70 percent of the $10.6 million was for the actions of ten former attorneys.

This is a trend that fund trustees have been noticing. In their annual report, they indicate that most of the losses come from solo practitioners who are generally male and middle-aged. Their misconduct is heavily influenced by alcohol, drug abuse, and gambling but is also affected by economic pressures, marital, professional, medical, and mental illness problems. The trustees are recommending measures to detect and prevent excessive abuse. One proposal is to require banks to give notice to the Lawyers’ Fund when an attorney trust or escrow account overdrafts. Another proposal is to ban overdraft protection on attorney trust and escrow accounts. While they decide which actions to take, the claims against the fund continue to grow.

The report states there are 351 claims filed with the fund for last year, claiming $29.2 million in losses. In 2016, there were alleged losses of $42.8 million.

See the full list of the suspended, disbarred or deceased lawyers whose clients were reimbursed for their misconduct, go here.

Full Article & Source:
New York Lawyers’ Fund $10.6 Million in Payouts Mostly Due to Handful of Lawyers

Rhode Island assisted suicide bill will create the perfect crime.

Margaret Dore
Providence, RI -- Attorney Margaret Dore, president of Choice is an Illusion, which has fought assisted suicide legalization efforts in many states, including Rhode Island, made the following statement in connection with the hearing on bill H 7297 seeking to legalize assisted suicide and euthanasia in that state.

"There is a bill pending before the Rhode Island House of Representatives, which seeks to legalize physician-assisted suicide and euthanasia as those terms are traditionally defined," said Dore. “The bill seeks to legalize these practices for people with years, even decades, to live.”

“The bill is sold as assuring patient choice and control. But when you look at what the bill actually says and does, the bill is a recipe for elder abuse.” Dore explained, "The patient's heir, who will financially benefit from the patient’s death, is allowed to actively participate in signing the patient up for the lethal dose. After that, no doctor, not even a witness, is required to be present at the death. If the patient objected or even struggled, who would know? The bill will create the perfect crime.”

"Other states are pushing back against assisted suicide,” said Dore. “This year, Utah passed a bill clarifying that assisted suicide is a crime. Last year, Alabama passed a bill banning assisted suicide. Two years ago, the New Mexico Supreme Court overturned assisted suicide: Physician-assisted suicide is no longer legal in New Mexico.”

“The Rhode Island bill seeks to legalize assisted suicide and euthanasia for people who are ‘terminal,’ which is defined as a doctor’s prediction of less than six months to live.“ Dore added, “In real life, such persons can have years, even decades, to live.”

“Doctors can be wrong about life expectancy, sometimes way wrong." Dore explained, "This is due to actual mistakes and the fact that predicting life expectancy is not an exact science. A few years ago, I was met at the airport by a man who at age 18 had been diagnosed with ALS and given 3 to 5 years to live, at which time he was predicted to die by paralysis. His diagnosis had been confirmed by the Mayo Clinic. When he met me at the airport, he was 74 years old. The disease progression had stopped on its own.”

“If the Rhode Island bill becomes law, there will be new lethal paths of elder abuse, which will be legally sanctioned,” said Dore. “People with years, even decades to live, will be encouraged to throw away their lives or have their lives thrown away for them. Even if you like the concept of assisted suicide and suicide and euthanasia, the proposed bill has it all wrong.”
For more information:

1. Margaret Dore, Legal/Policy Analysis of H 7297, Rhode Island House Committee on Health, Education and Welfare, memo available here: Attachments available here

2. Margaret K. Dore, “Death with Dignity’: What Do We Advise Our Clients?,” King County Bar Association, Bar Bulletin, May 2009,  (available here).

Choice is an Illusion, a nonprofit corporation working against assisted suicide and euthanasia, worldwide
1001 4th Avenue, Suite 4400
Seattle WA USA 98154

Full Article & Source:
Rhode Island assisted suicide bill will create the perfect crime.

Nashuan pleads guilty to exploitation

Ashton Haven (right)
NASHUA – When he met a divorced woman with five children through an online gaming site a couple years ago, longtime Nashua resident Ashton Haven believed the “complete family life” he’d so longed for was finally within reach.

Attorney Jeff Odlund, one of Haven’s two lawyers, told Superior Court Judge Charles Temple that his client’s case is one in which “Ashton was placed in a situation where he wanted what he saw as having a family.”

“While it is not an excuse for the choices he made, I think it explains how the case happened … it contexualizes it,” Oldlund said, referring to the series of felony charges leveled 13 months ago against Haven, accusing him of financially exploiting an elderly relative by stealing thousands of dollars from her accounts.

Haven, 29, of 120 Monroe St., appeared before Temple in Hillsborough County Superior Court South Monday afternoon to plead guilty to three of the seven charges he’d faced in connection with the theft of more than $27,000 from the elderly woman, for whom Haven had durable power of attorney.

Temple, after hearing arguments and sentencing recommendations from Odlund and co-counsel Amanda Henderson, and the prosecutor, state Assistant Attorney General Brandon Gerod, took a roughly 15-minute break before pronouncing sentence.

He ultimately sentenced Haven to 1-3 years in state prison, with 90 days of the minimum suspended for three years after his release.

Coupled with the agreement that Haven be given credit for the 96 days he’s already spent in jail, brings his total minimum stand committed time to just under six months, a resolution that Temple said he believes reconciles “a number of aggravating and mitigating factors in this case.”

Haven, formerly known as Amy Haven, was indicted in May 2017 on a total of seven charges, which, beside the count of financial exploitation of an elderly, disabled or impaired adult and the two counts of theft by deception, included two additional counts of theft by deception and two counts of theft by unauthorized taking.

Those four charges were dropped by prosecutors as part of the agreement.

The attorneys had come to a capped plea agreement in the case, meaning that each side presented a sentencing recommendation to the judge. Odlund asked for a sentence of 1-2 years in state prison, all deferred for one year and then suspended for two years, while Gerod recommended that Temple sentence Haven to 1-3 years in state prison.

On the other charges Haven agreed to plead guilty to Monday – two counts of theft by deception – both sides recommended a term of 2-4 years in state prison, all suspended for three years.

Both also agreed that Haven be credited with the 96 days of time already served, and that he be allowed to report to state prison on April 6, to allow him to give two weeks notice to his present employer, a local coffee shop.

The terms of the agreement also order Haven to pay $27,600 in restitution to the victim. He must also enroll in any educational, treatment or counseling programs recommended by prison officials, and obtain “further rehabilitation,” Temple said, “so you can finally address the demons that have haunted you for the better part of your life.”

The judge referred to Odlund’s account of his client’s childhood, in which he said Haven was “a victim of serious violence” that led to a diagnosis of PTSD in adulthood.

Haven grew up in the area, Odlund said, and had no criminal history until this case. “My client is also transgender, and was on hormone therapy … but that stopped when he went to Valley Street Jail” after his arrest.

Losing his father to a heart attack at a young age, Haven was “suddenly thrust into the position of caring for” the elderly relative, Odlund said.

“The responsibility fell to him … frankly, being called upon to be her power of attorney was beyond his capabilities, but he was the only adult in the home,” he said.

Once Haven met the woman with five children, he began using “the misappropriated funds” for “frivolous, unreasonable” purchases of goods and services, Odlund said.

Gerod, the prosecutor, said “a substantial amount of money was spent on restaurants, mainly fast-food places for the woman’s children.

Meanwhile, Gerod said, the victim, who had been diagnosed with dementia five years earlier, trusted Haven, but otherwise “she simply did not have the cognitive abilities to realize what was happening.” She therefore trusted that Haven “was doing everything in her best interest,” he said.

The woman “is really the most vulnerable victim you can have,” Gerod continued. “She had no ability to realize what was happening … unable to consent to anything.”

He also noted the “horrible condition” that authorities found the house in when they began investigating the case, and that Haven neglected paying utility bills so long that services were eventually shut off.

Odlund said that the fact Haven was “comfortable living in conditions like that” shows that he “has deep psychological issues” that need to be addressed.

Haven alternated between stoic and emotional as he watched the proceedings from the defense table.

Asked if he wanted to address the court, Haven spoke briefly with his attorneys then rose from his seat.

“I just want to say I’m truly sorry,” he began, his voice breaking. “I understand now, that at the time, I didn’t see what was going on … now I see it,” he said between pauses.

“I am truly sorry.”

Full Article & Source:
Nashuan pleads guilty to exploitation

Friday, April 20, 2018

Suspended Las Vegas lawyer Jacob Hafter dies at age 42

Controversial Las Vegas lawyer Jacob Hafter, who made unsuccessful bids for elected office in recent years and was suspended by the Nevada Supreme Court in November, died Tuesday at the age of 42.

Fellow lawyer Robert Draskovich remembered Hafter on Wednesday as a “talented but eccentric attorney.”

The Clark County coroner’s office has ruled Hafter’s death a suicide.

According to a GoFundMe page established to raise money for Hafter’s burial costs, he was married and had four children. The page raised more than $22,000 after its creation Wednesday. 

Rabbi Shea Harlig said Hafter was charitable and had helped various Jewish organizations and synagogues financially. Harlig had known Hafter since Hafter was in high school but had not talked to him in years.

Harlig said that with Hafter, everything was “black and white.”

“When he felt there was an injustice, nothing stopped him,” the rabbi said.

License suspension

Hafter was suspended for six months by the high court for lying under oath and making derogatory public comments about a district judge. The suspension was partly a response to a complaint from the State Bar of Nevada.

The complaint stemmed from comments Hafter made in 2014 about then-District Judge Valorie Vega after she denied his request to alter a two-week civil trial schedule to accommodate a Jewish holiday.

“He went all out to fight it,” Harlig said.

Hafter accused Vega of religious discrimination in a Facebook post. He also told a Las Vegas Review-Journal reporter at the time: “Either she’s anti-Semitic or she’s biased against me. In either case, she shouldn’t be the judge in this case.”

The high court found that “there was no basis in fact for Hafter’s comments.”

At the time, Vega was presiding over a medical malpractice case that Hafter was defending, and Hafter was running for a different seat on the District Court bench.

Shortly after the high court’s decision was handed down, Hafter, who had asked for no discipline, took to Facebook:

“This state is so crooked. It is so sad,” he wrote. “We have attorneys who steal from clients and they get stayed suspensions and slaps on the hand. I try to follow my religion and defend myself in a private litigation matter and the Supreme Court suspends me for 6 months, effective immediately. What about all the clients I have? I represent clients that no other attorney will take. I do it, often, without charge or for delayed compensation. I am a solo practitioner. How is that fair to the public?”

The suspension also followed allegations against Hafter of engaging in fraudulent conduct and making misrepresentations in Nevada legal proceedings to evade a $137,000 judgment against his law firm in Arizona.

Hafter had been licensed to practice law in Nevada since 2005, according to the State Bar’s website. He focused on representing doctors.

On April 9, he posted on Facebook that he was packing up his office. The post included the hashtag, “#wouldratheruberthanpracticelawinNevada.”

Past litigation

Before the discipline was imposed, Hafter represented a 4-year-old girl in a lawsuit aimed at forcing UNLV to reopen its maternal HIV program after the program was suspended.

“They’re holding the program in abeyance at the risk of children getting the health care that they need,” Hafter said in October.

In 2015, Hafter filed a lawsuit claiming that Nevada’s medical marijuana registry violates several constitutional rights, including the right to due process. Representing an anonymous medical marijuana patient, he argued the case last year in front of the state Supreme Court. The court ruled that the system is constitutional.

In 2012, a federal judge barred Nevada prisons from feeding “common fare” menu items to inmates who adhere to kosher diets after Hafter argued that the menu violated religious rights.

Hafter, a former paramedic, ran as a Republican for Nevada attorney general in 2010 but lost in the primary.

He said he often donated his services to people who were in danger of losing their homes to foreclosure.

“I am someone who believes people need an advocate,” he said during the campaign. “I advocate whether I am paid or not.”

Hafter also lost a race against incumbent District Judge Susan Johnson in 2014.

February letter
In a February letter to the 9th U.S. Circuit Court of Appeals, attorney Jacob Hafter said his suspension by the Nevada Supreme Court left him “devastated.”

“I had to give away all my cases. I am unemployable and have been blackballed from the industry,” he wrote. “I do not have the resources, nor the energy to fight this anymore. I also have no desire to practice in a profession that is regulated by justices who would rather silence someone who speaks out against an elected member of the judiciary, than pursue justice. Hence, my legal career is coming to a close.”

The federal court imposed a concurrent suspension based on the Nevada court’s order. The suspension was due to end next month.

Full Article & Source:
Suspended Las Vegas lawyer Jacob Hafter dies at age 42

Assisted living facilities sued for discriminating against people who use wheelchairs

A group of related assisted living communities in New York City as well as the state's governor, health commissioner and Department of Health are defendants in a lawsuit alleging they discriminate against people with disabilities who use wheelchairs.

The New York City-based Fair Housing Justice Center, a former assisted living resident and her brother, who is her power of attorney and healthcare proxy, are the plaintiffs in the April 12 action.

The resident alleges that she was prohibited from returning to one of the facilities, where she had resided for five years, after she left for two months to be treated for a urinary tract infection and subsequently used a wheelchair some of the time. She continues to live at the skilled nursing facility where she had gone for rehabilitation, according to the lawsuit.

Defendants in the lawsuit include the Village Housing Development Fund, Elm York Assisted Living in the East Elmhurst neighborhood of Queens, Madison York Assisted Living in the Rego Park neighborhood of Queens and Madison York Assisted Living in the Corona neighborhood in Queens. The plaintiff lived in an adult home operated by the Village Housing Development Fund, which is related to the other communities, according to the complaint.

Representatives for the assisted living facilities did not respond to requests for comment by McKnight's Senior Living's publication deadline.

The FHJC, in a newsletter posted online, said it conducted an “undercover testing investigation” of the defendants' properties (in 2017, according to the lawsuit) after receiving allegations of discrimination from residents. The complaints, according to the lawsuit, included being prohibited from using wheelchairs and other mobility devices throughout facilities and in common areas and being warned that they could be sent to a nursing home if they became too reliant on such equipment.

The center had testers pose as family members of prospective residents, and conversations were recorded, according to the lawsuit. The investigation, the nonprofit organization said, “demonstrates a pattern and practice of discrimination against people who use wheelchairs.” Testers frequently were told that residents were required to be ambulatory in case of an evacuation.

The facilities are licensed by the state to provide housing and services to people with disabilities, and all have elevators, according to the FHJC.

“As soon as a resident begins to use a wheelchair, the adult home claims they are inappropriate for assisted living and sends them to a nursing home,” Jota Borgmann, senior staff attorney at Mobilization for Justice, said in the newsletter article. Attorneys from that organization as well as AARP Foundation Litigation are representing the plaintiffs. “And, worse yet, New York state shamefully maintains that it is perfectly fine for adult homes to discriminate against people who use wheelchairs,” Borgmann added.

The FHJC alleges that the state “promotes disability discrimination through its regulations and policies.” Adult homes are allowed to ban wheelchair users, and the state Department of Health regulations say that assisted living facilities “should not accept nor retain any person who … is ‘chronically chairfast,' ” according to the complaint.

The regulations have not been updated since the passage of the Americans with Disabilities Act, the Affordable Care Act and the amendments to the federal Fair Housing Act as well as since the Supreme Court's decision in Olmstead v. L.C., the FHJC said.

“People with disabilities who use wheelchairs must have equal access to housing opportunities and assisted living services that are available to others,” FHJC Executive Director Fred Freiberg said in the newsletter article. “The state needs to enact and enforce regulations that promote non-discrimination in adult care facilities and assisted living programs so that they fully comply with federal civil rights mandates.”

Full Article & Source:
Assisted living facilities sued for discriminating against people who use wheelchairs

Perceived Risk Hides Potential Upsides for Skilled Nursing Investors

The headlines for the skilled nursing sector include such uplifting topics as bankruptcies, lawsuits, and declining occupancy — to name just a few — and are enough to make any investor think twice about putting money in the industry.

But “the perceived risk is higher than actual risk” in the sector, at least according to one panel discussion at the National Investment Center for Seniors Housing & Care (NIC) conference in Dallas in March.

“A long-term investor can see the bright future ahead, in that skilled nursing remains the most cost-effective option, as opposed to hospitals, for example,” Ben Firestone, senior managing director at Blueprint Healthcare Real Estate Advisors, told Skilled Nursing News. “And the government is going to continue to fund it in some way, shape or form.”

Skilled nursing compelling in long-term

Despite the headwinds in the skilled nursing industry, there may be more smoke than fire, at least with regard to risk, Frank Small, managing director of health care at private equity firm GMF Capital, said at the NIC event.

“I guess from our perspective and our experience, the perceived risk is higher than the actual risk,” he said when asked by Firestone how he explains skilled nursing headwinds to equity investors.

This is because returns remain strong, with cap rates in the sector usually coming in around 12.5%, with some fluctuations over time, Firestone explained to SNN. This compares favorably to cap rates in other commercial real estate classes such as retail, which is seeing at least as many issues as skilled nursing and far lower cap rates.

“I don’t know another asset class on a stabilized level, where you’re not changing something in the business plan, where you can reap those kind of returns,” Firestone said of skilled nursing.

Even though a recent survey from the CBRE (NYSE: CBRE) U.S. Healthcare Capital Markets Group indicated that SNFs were near the bottom of investors’ wish list for 2018, the investors Small deals with are looking at the sector from a long-term perspective, he said at the NIC conference.

“From the perspective of the capital we talk to, they’re looking at it on a 10 or 15 year basis,” Small said on the panel. “So if they look at it with HUD still available and flowing. You got a long-term asset matched with long-term liability, and the cash flow dynamic is compelling.”

Working past bad press

Even with the bad press skilled nursing has been getting over the past few years, the market is strong, Firestone told SNN.

“What the market is saying is that they’re okay accepting that risk for the returns — they’re wiling to pay for these assets,” he said. “And there is so much demand right now, not only for stabilized transactions but also non-stabilized deals… the price per bed of skilled nursing for deals that are not stabilized is actually going up.”

But the sector is undeniably a chancy one, notorious for thin margins and low reimbursement. That’s led to premium valuation for portfolios, because individual property risk can be diversified through such acquisitions, Firestone said. Though an individual property could see a performance downturn, purchasing 20 properties increases the likelihood of a downward performance being offset by others improving.

“We have diversifcation at the asset level, so that any of these individual problems that would tackle one facility’s performance financially can be offset by another’s good fortune,” Firestone said.

Operators are also a crucial part of managing the risk, Small noted at NIC.

“A lot of it… candidly, is spending a lot of time with the operator and understanding are they the right operator for that asset in that market,” he said.

Operators need incentives to provide quality care, and though the sector will have to go through “some purges and resets,” the nursing home business will not be done away with entirely, Firestone said. Investors are betting that despite short-term hits, occupancy will bounce back as the population ages, allowing good operators to survive and thrive in the medium-to-long run.

“The savvy investors out there are able to pick their spots, make bets, hedge against short-term stress or adversity, and come out victorious in the long run, with sustainable, profitable practices and portfolios and compaines that care for our aging seniors,” Firestone said.

Written by Maggie Flynn

Full Article & Source:
Perceived Risk Hides Potential Upsides for Skilled Nursing Investors

Thursday, April 19, 2018

Vast Majority Of Elder Financial Abuse By Guardians Can Be Prevented, Experts Tell Senate

Senate Aging Committee Chair Susan Collins
The vast majority of elder financial abuse by guardians can be prevented, a panel of four experts unanimously told a Senate Aging Committee hearing today.

Among the low hanging fruit they recommended:
  • Enacting state laws to provide more often for less restrictive arrangements than guardianship, such as assisted decision making,  for seniors and others with disabilities.
  • Tell the individual under care and family members that a guardian has been appointed, what the guardian's responsibilities are and how to report guardian abuse.
  • Mandate guardians tell the courts when people under their care have become able again to make their own decisions.
As an example, stroke victims can quickly recover that ability, noted Nina Kohn, principal drafter of the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act.

A guardian should be appointed only when a person cannot make their own decisions and is at risk of harm without the aid of someone to oversee their affairs, said Kohn, a Syracuse University law professor.

An estimated 1.5 million adults with billions of assets are currently under guardian care.

Senate Aging Committee Chair Susan Collins said less restrictive care can reduce the likelihood that someone could take advantage of a senior or misuse their assets.

The Maine Republican pointed to a Nevada guardian who was indicted last year on more than 200 felony charges, after having been given the authority by the courts over 400 individuals in 12 years.

Elder financial abuse by  guardians can range from outright theft to excessive fees, such as when an attorney charges his or her normal hourly rate for grocery shopping, the hearing was told.

“There is a significant risk potential to an older adult when a family or friend is appointed as a guardian. However, this risk grows exponentially with a guardianship agency who serves multiple adults under guardianship,” said Denise Flannigan, a guardianship supervisor for an area agency on aging in Western Pennsylvania.

A review of 27,000 guardianship cases in Texas regularly found unauthorized withdrawals from accounts; unauthorized gifts to family members and friends; and unsubstantiated and unauthorized expenses, Texas Judicial Council Executive Director David Slayton told the committee.

He added that in over 43% of the cases, guardians failed to meet all court-mandated reporting obligations, including providing information that a bond had been obtained, an inventory of assets in the estate and an annual accounting of transactions.

“Persons under guardianship should enjoy supported decision making whenever possible and have their rights restored in part or totally with all deliberative speed,” said Virginia Tech Gerontology Center Director Pamela Teaster.

The loss of rights makes it imperative guardianship is done right, said Aging Committee Lead Democrat Bob Casey.

Full Article & Source:
Vast Majority Of Elder Financial Abuse By Guardians Can Be Prevented, Experts Tell Senate

“Abuse of Power: Exploitation of Older Americans by Guardians and Others They Trust.”

Video & Source:
“Abuse of Power: Exploitation of Older Americans by Guardians and Others They Trust.”

Coalition focused on senior citizen issues updates members on legislation

Betty Owens works with the Alzheimer's Outreach Center
ALBANY — The Coalition of Advocates for Georgia’s Elderly (CO-AGE) met Wednesday to update attendees on the legislative status of bills affecting older Georgians. Seven bills passed during the recent state legislative session, one did not and several items received federal and state funding.

CO-AGE’s current priorities are Home- and Community-Based Services (HCBS) funding, establishing an elder abuse registry, Aging and Disability Resource Connection (ADRC) funding, Medicaid assisted living and personal home care requirements. The group received an additional $4.2 million in HCBS funding last year but did not get more this year.

However, other items did receive funding. The Personal Need Allowance, which gives nursing home residents money to pay for hygiene products, clothing and other necessities, was raised from $15 to $65 per month for a total of $4.18 million in combined state and federal funds. The Community Care Services Program’s Alternative Living Services received a total rate increase of $10.5 million. Adult Day Health Care centers now have a rate increase of $400,000.

Welcome elder abuse bills passed during the legislative session and are making their way to the governor’s office. These bills include SB 406, which requires FBI fingerprinting background checks for employees “with direct access to patients in long-term care settings such as nursing homes, personal care homes and home health care;” HB 803, which labels the act of trafficking an at-risk adult to steal their Social Security and other benefits as a crime, and HB 635, which helps “local communities create task forces to investigate the abuse of at-risk adults.”

Another bill of interest that passed with Georgia Coalition on Aging involvement is HB 930, which allows existing transit funds to support senior transit programs. Vicki Johnson, the chairwoman for the GCOA, recorded a video explaining the bill’s importance.

“We know that lack of transportation is a growing problem for seniors, as they no longer are able to provide their own transportation for themselves,” she said. “And many of our agencies have been able to use ridesharing services … as well as taxi services to provide transportation. We want to be sure to protect seniors.”

Other passed bills of interest include SB 370, which protects “the first $25,000 of an estate from Medicaid Estate Recovery;” SB 444, which creates the Georgia Alzheimer’s and Related Dementia State Plan Advisory Council, and HR 1257, which creates a House study committee.

HB 497, which would have granted senior citizens and other relatives de facto custody over grandchildren they take care of should they provide a better living environment than the parents did not pass. However, that does not spell the end for the bill. Kay Hind, the meeting’s presenter and an advocate who has been working with CO-AGE since it was formed in the early ’80s, recounted the group’s attempts to get another bill passed.

“We’ll try (to get a bill passed) again the next year, if we feel it’s important. We had a bill that would allow dental hygenists to go into the nursing home and care for the patients, because (the patients) can’t get out,” Hind said. “That one took us 12 years, but we did get it passed.”

The deadline to submit issues for consideration by the organization is May 1. The next CO-AGE meeting will be July 12 in Macon.

Full Article & Source: 
Coalition focused on senior citizen issues updates members on legislation

Wednesday, April 18, 2018

Bill would require background checks for guardianship

State Rep. Mark Gillen sponsored the measure. It would also prevent those with felony convictions from serving as guardians.
Harrisburg, PA — A Berks County lawmaker has introduced legislation that would require background checks on individuals up for appointment as guardians for the incapacitated.

State Rep. Mark Gillen began seeking co-sponsors for the bill two days after reading a Reading Eagle investigation that found courts in Philadelphia and Montgomery counties appointed Gloria Byars, a convicted felon, to manage the estates of more than 75 incapacitated adults.

Advocates praised Gillen's bill, saying it goes a long way to establish state standards. After more than a decade of state working groups, advisory committees and task force reports recommending standards for guardians that include licensing and background checks that have yet to be put in place, these advocates applauded Gillen for responding quickly to the issue the newspaper's series raised.

But they also expressed concern that the bill's language fails to specifically address whether agencies that delegate court-appointed responsibilities to staff must conduct background checks on those employees.

An attorney who specializes in elder law said the proposed law might not prevent a case like Byars', who worked for a guardianship agency, from happening again.

Critics say the felony ban would bar relatives with a criminal conviction from being appointed, even if the offense is decades old.

Nothing in state statute currently prohibits a court-appointed guardian from having a criminal record.
House Bill 2247, introduced Monday, would change that.

"We think there is a void that needs to be filled," said Gillen, a Robeson Township Republican. "Let's all agree that criminals should not intersect with the assets of our frail elders."

Gillen's bill would disqualify convicted felons from being appointed guardians and require federal and state criminal history checks. It also bans undocumented immigrants from serving.

The bill has bipartisan support and nearly two dozen co-sponsors.

"The reason for getting on the bill is simply we have an obligation to protect our most vulnerable citizens and certainly our elderly would fall into that category," said Rep. Judy Ward, a Blair County Republican. "I'm happy to be a co-sponsor."

The bill was met with mixed reaction.

While advocates for the elderly said they don't want the court appointing guardians with felony records, the type and date of a conviction is more important. As written, any felony conviction, even convictions that occurred decades ago involving charges unrelated to the care and protection of vulnerable Pennsylvanians would be disqualifying.

Lawrence A. Frolik, a University of Pittsburgh School of Law professor and national expert on elder legal issues, called the bill heavy handed.

"The use of felony disqualification disproportionately impacts minority communities," Frolik said.

Sam Brooks, senior attorney for Community Legal Services of Philadelphia, which has become one of the leading advocates in the state for the elderly, agreed.

"It could actually prevent family members who are willing to serve from actually being able to serve," Brooks said. "While we envisioned background checks, we didn't envision this for family members."

Brooks added, "We would like to see the courts have some discretion."

Other states with felony bans, such as California and Texas, make a distinction between family members stepping up to serve as guardian for a loved one and professionals who charge for services.

Advocates also note a criminal background check - to be paid by the proposed guardian - can be costly.

A criminal history check through the Pennsylvania State Police is $27, and an FBI check costs $18.

Concerned the cost could be prohibitive for Pennsylvania families, Frolik suggested the background check be paid from the incapacitated adult's estate. Or, he suggested, an affidavit attesting that the proposed guardian has never been charged or convicted with elder abuse or financial exploitation could substitute for a criminal check.

Advocates also noted a criminal background check would flag only convictions.

"It's very common for them to delegate powers to their staff," said Brooks, the legal aid attorney in Philadelphia. "The question is would this cover that? Probably not."

It's a possible employee loophole Gillen said he hopes the amendment process will iron out.

Gillen didn't address all the crticism, but with lawmakers considering hundreds of bills each session, he said his strategy with this and every bill is to introduce a lean product, then seek input from stakeholders.

Full Article & Source:
Bill would require background checks for guardianship

Letter to the Editor: From an older, elder advocate.

Dear Editor,

Every day on the local and national news, we hear stories about sexual assaults, domestic violence, child abuse, harassment, police abuse, discrimination, school shootings, and a host of other issues that affect our lives and the lives of others. These subjects are discussed at length on college campuses, both in the classrooms, and in public forums. We as students have been taught to recognize what these issues look like, and how we should act and react when we come in contact with them.

CSUN mandates Title IX training prior to students registering for classes, Project Date visits campus classrooms to talk about sexual assault, and has a campus presence to educate students, professors educate their students as to procedures when confronted with the possibility of a school shooter, and it is agreed that these areas are important for our CSUN community to be aware of. Unfortunately, the subject of Elder Abuse is not one that is often talked about or reported, yet it is an equally prevalent and important subject that affects our elderly population.

According to the Center for Disease Control (CDC), the definition of Elder abuse is: “an intentional act, or failure to act, by a caregiver or another person in a relationship involving an expectation of trust that causes or creates a risk of harm to an older adult. (An older adult is defined as someone age 60 or older.)” Elder abuse includes, physical abuse, sexual abuse or abusive sexual contact, emotional/psychological abuse, neglect and financial abuse or exploitation. The National Council of Aging (NCOA) website notes that 1 in 10 elderly have been abused, 5,000,000 each year, and only 1-14 of those abuses are reported.

CSUN and other academic institutions need to take a proactive stance on this issue and students of all ages, as well as our communities need to be educated about elder abuse. What it is, what to signs to look for, how to prevent it, and to whom, and how to report it. Just as our students will be for future generations, our elders have been our teachers, our caregivers, our historians, and our innovators, and they are also a forgotten demographic that deserves to be protected just as any other demographic.

I am 55 years old, and a transfer student currently completing my junior year here at CSUN. I am nearing that elder demographic and one student who has been educated about elder abuse may be the person to protect me one day.

-Lori A. Peters
California State University Northridge, Class of 2019

Full Article & Source:
Letter to the Editor: From an older, elder advocate.

New Court Filing Argues the State's Guardianship System Puts the Disabled at Risk

Thomas Coleman (left), appearing on a talk show aired by the Arc of Riverside County, said failings in the guardianship system put the disabled at risk of exploitation and abuse. - COURTESY OF THE SPECTRUM INSTITUTE
Courtesy of the Spectrum Institute
    Thomas Coleman (left), appearing on a talk show aired by the Arc of Riverside County, said failings in the guardianship system put the disabled at risk of exploitation and abuse. abuse.
A group that advocates for the rights of the disabled has filed a class action complaint with the Texas Supreme Court arguing that the state's adult guardianship system violates parts of the Americans With Disabilities Act.

The Spectrum Institute, which made similar court filings in Missouri and Washington, says Texas' state-appointed attorneys are often unable to adequately represent people placed in guardianship — typically those with mental impairments that prevent them from looking after themselves. What's more, attorneys may have financial incentive to aid probate judges at the expense of the people they're representing, according to the filing.

Officials with Texas Health and Human Services, which administers a state guardianship program, declined comment on the filing since the appointment of attorneys is a court function.

"In many cases, someone in the prison system has more rights to make decisions about his own life than someone in guardianship," said Thomas Coleman, Spectrum Institute's legal director. "He can make decisions about his own medical care or about his finances. In many cases, these individuals cannot. That makes them especially vulnerable."

Without adequate court representation, disabled people face the risk of exploitation, abuse and neglect at the hands of their caretakers, Coleman added.

Currently, 54,000 Texas adults are under guardianship in the state and more than 4,500 cases are filed annually, according to Spectrum Institute. The majority of people under guardianship in the state have intellectual or developmental disabilities, but some are seniors experiencing cognitive decline. Both populations are expected to grow over coming years.

The population of Texas seniors has increased more than 19 percent since 2012 to 3.4 million.

Full Article & Source:
New Court Filing Argues the State's Guardianship System Puts the Disabled at Risk

Tuesday, April 17, 2018

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 ES
Carly hosts: Dorothy Knightly

Dorothy's husband was put into Hospice. Unknown to them, was the fact that her husband had an infection. Because he was in Hospice, the infection was not treated and became septic. The infection was not treated because he had been put into "palliative care".....meaning terminal sedation. Palliative care (terminal, hastening the end of life) is started after 'futility of care" is pronounced by the physician.

Imagine seeing your loved one drugged into a stupor so that death comes long before it should. Refusing to treat an infection and allowing it to progress into a life-threatening event? Withholding nutrition and hydration is standard procedure. Add the intentional withholding of necessary medical care, and then drug the individual so that they can not cry out or complain. It is a slow and painful death.

We treat prisoners on death row better than we treat the elderly or the disabled. At least a death row prisoner gets a last meal and the process of death is comparably swift, and a prisoner can appeal the efforts to end his life. Not so in Hospice.

LISTEN LIVE or listen to the archive later

Stan Lee Needs a Hero: Elder Abuse Claims and a Battle Over the Aging Marvel Creator

At Marvel in New York in the '60s, he created the comic book characters that dominate the box office today. But at 95 and reeling from his wife's death and a fight with his daughter, Lee stands at the center of a nasty battle for his care (and estate) as one friend pleads for help: "He's in need of a superhero himself."

Back in early February, fighting what he later called "a little bout of pneumonia," 95-year-old Stan Lee had an argument with his 67-year-old daughter, J.C. This was hardly unusual, but it seems to have been a breaking point.

The comic book legend — whose creative tenure at the helm of Marvel Comics beginning in New York in the early 1960s spawned Spider-Man, Black Panther and the X-Men and laid the foundation for superhero dominance in Hollywood that continues with the April 27 release of Avengers: Infinity War — sat in the office of his attorney Tom Lallas and signed a blistering declaration.

The Feb. 13 document, obtained by The Hollywood Reporter, begins with some background, explaining that Lee and his late wife had arranged a trust for their daughter because she had trouble supporting herself and often overspent. "It is not uncommon for J.C. to charge, in any given month, $20,000 to $40,000 on credit cards, sometimes more," the document states. It goes on to describe how, when he and his daughter disagree — "which is often" — she "typically yells and screams at me and cries hysterically if I do not capitulate."

Lee explains that J.C. will, "from time to time," demand changes to her trust, including the transfer of properties into her name. He has resisted such changes, he states, because they "would greatly increase the likelihood of her greatest fear: that after my death, she will become homeless and destitute."

The declaration then explicates how three men with "bad intentions" — Jerardo "Jerry" Olivarez, Keya Morgan and J.C.'s attorney, Kirk Schenck — had improperly influenced his daughter, a woman with "very few adult friends." The document claims the trio has "insinuated themselves into relationships with J.C. for an ulterior motive and purpose": to take advantage of Lee and "gain control over my assets, property and money."

Lee's estate is estimated to be worth between $50 million and $70 million (it's been reported he receives $1 million a year for his Marvel ties). And while his primary role with the company is now mostly ceremonial — including a cameo in nearly every film — he remains a deity in fanboy culture. Despite the fact that his health requires nursing care at home and on the road, up until his most recent illness, Lee was a jovial regular at international comic conventions, where he can draw thousands of paying autograph seekers.

A few days after the declaration was notarized, however, Lee changed his mind — or someone did. Whatever happened, Lallas was soon out as Lee's attorney in a confrontation that grew tense enough that the LAPD was called to the legend's Hollywood Hills home.

Morgan and J.C. began consolidating their power over Lee. Mike Kelly, Lee's assistant for nearly a quarter-century who used to come by the house most days for one-on-one meetings, was limited to weekly pre-approved and supervised visits. A new accountant (Vince Maguire, Tobey's brother and Morgan's friend) was hired. The housekeeper and gardener, who had been with Lee for decades, were sent packing. And a revolving door of lawyers were retained over six weeks until the pair introduced Lee to his current counsel, Jonathan Freund.

Lee's phone number has been changed, and his emails are being monitored and composed by Morgan. ("Stan Lee has macular degeneration and his eyes cannot see small letters," Morgan explains. "I have been taking him to the eye doctor and reading his e-mails for him for many years. This is his request, and he thanks me for helping him.")

When Morgan learned that THR had obtained a copy of the seemingly damning declaration, he filmed a video of Lee distancing himself from the document. In the clip, while Lee doesn't deny signing the declaration, he calls its contents "totally incorrect, inaccurate, misleading and insulting." (Lallas says he went through the contents with Lee "word by word, line by line.")

In the video, an animated and robust Lee goes on to state that "my relationship with my daughter has never been better, and my friend Keya Morgan and I also have a great relationship … anybody who is saying anything [else] … is just spreading lies."

J.C. declined to speak with THR. Instead, Schenck, her lawyer, says "the story isn't that J.C. is taking advantage of her father, but that she's potentially being taken advantage of by multiple men." Lee himself remains mostly silent, except for the brief recorded statements coordinated and released by Morgan.

However, nearly all of the other players in the messy drama over Lee's estate and well-being are speaking out. Their often conflicting stories reveal an increasingly toxic and combative situation involving broken alliances, abrupt expulsions and allegations of elder abuse against one of America's most influential and beloved cultural icons. On several occasions, the turmoil drew the attention of law enforcement.

Says one longtime insider: It's "an utter shit show."

Lee and Joanie in Beverly Hills in 2012. During their 69 years of marriage, she kept their household in order.
Kevin Winter/Getty Images
Lee and Joanie in Beverly Hills in 2012. During their 69 years of marriage, she kept their household in order.
As much as Stan Lee's public life was defined by his fame and achievements, his family was shaped by the forceful personalities of his strong-willed, England-born, former-model wife, Joan, and their long-troubled dilettante daughter. In their charmed seven-decade marriage, Joanie (as everyone called her) had urged Lee to take key professional risks, most notably to create the Fantastic Four — revolutionary at the time for being superheroes with real flaws — while she maintained the resolute last word on the couple's household affairs.

Until recently, Lee and Joanie had been blessed with the good fortune of surviving into their 90s with mental acuity and physical agility that wowed those around them. But Joanie's death from a stroke on July 6 at age 95 marked the end of their evening martini ritual at home in the exclusive Bird Streets of the Hollywood Hills (Leonardo DiCaprio is a neighbor) — and the beginning of pandemonium.

Signs abounded that chaos would reign if Joanie were the first to die. There was Lee's people-pleasing habit of telling whoever was in front of him whatever they wanted to hear, his history of bad financial decisions (like never properly cashing in on Marvel) and his susceptibility to bad actors (including a doomed partnership called Stan Lee Media with Peter F. Paul, a convicted drug dealer). Add to this Lee's Depression-bred distrust of banks, leading to rumors he'd hid millions in cash all over his property.

Joanie was always more successful at handling their unruly only daughter, with whom Stan has a powder-keg relationship. Though some with an intimate knowledge of the household speak of her vivacious spirit and kindness, the never-married J.C. also has a reputation as a prodigious shopper with an ill-tempered personality who has been kicked out of multiple businesses around Los Angeles, including, according to a dining companion at the time, the Chateau Marmont. She's chafed at what she sees as unjust restrictions on her trust and has taken that out on her father. According to medical personnel who have cared for Lee, J.C.'s badgering, often insulting phone calls to her father (which can number in the dozens a day and which, out of a mix of guilt and love, he nearly always answers) frequently leave him hoarse from fighting. "For any little thing, she'll argue," says a former caregiver. "She's very inconsiderate."

According to household staff and business associates, there have been times when J.C.'s verbal outbursts have turned physical. One incident took place in winter 2014, explains Lee's former business and asset manager Bradley J. Herman, after J.C. discovered that the new Jaguar convertible parked outside, which she thought had been purchased for her, was in fact only leased — and in her father's name. Herman, in Stan's office to handle some paperwork, recalls that the argument spiraled out of control after J.C. called her parents "fucking stupid" and Joanie told her the car was "now [Joanie's.]"

According to Herman — whose active Hollywood client list he keeps private but who previously worked for Johnny Carson and Frank Sinatra — J.C. then roughly grabbed her mother by one arm, shoving her against a window. Joanie fell to the carpeted floor. Lee, seated in a nearby chair and looking stunned, told J.C. he was cutting her off: "I'm going to stick you in a little apartment and take away all your credit cards!" Herman recalls Lee shouting. "I've had it, you ungrateful bitch!" In "a rage," J.C. took hold of Lee's neck, slamming his head against the chair's wooden backing. Joanie suffered a large bruise on her arm and burst blood vessels on her legs; Lee had a contusion on the rear of his skull. (J.C. has previously denied the incident.)

Shortly afterward, allegedly at Joanie's behest, Herman took photos that purport to show her injuries, which he shared with THR (another visitor to the house shortly thereafter confirms the wounds). Herman contends the parents asked him not to pursue the matter with police, wary of publicity and law enforcement for their daughter, whom they viewed as emotionally fragile and who they told intimates was still haunted — even as a senior citizen herself — by the bullying of her childhood.

Olivarez, one of the "three men" named with "bad intentions" in Lee's Feb. 13 declaration, has known him since 2010. A florist-turned-publicist, Olivarez initially entered the fold as a consultant to J.C. and Joanie's various go-nowhere creative endeavors (including a Swarovski crystal-studded tie line) before ending up with power of attorney over Lee after Joanie's death and the title of "senior advisor" that sounds more glamorous than the reality: the grind of caretaking. Olivarez handled doctors' appointments and found new nurses for Lee. "He said, 'I rely on Jerry,'" Olivarez recalls Lee telling him.

Still, Olivarez's newfound prominence put him on a collision course with two men who had their own long-standing surrogate-son relationships with Lee. The first was Max (nee Mac) Anderson, a burly and brusque figure with a criminal record who had worked for more than a decade as Lee's road manager, handling appearances and running a pop-up memorabilia exhibition on the Comic-Con circuit called the Stan Lee Museum. And then there was the bowler-hatted Keya Morgan, a noted dealer in rare memorabilia and artifacts pertaining to American cultural figures (particularly Marilyn Monroe and Michael Jackson) who has turned his attention to producing, including an attempt to jump-start a Lee biopic.

By December, Olivarez, who has a decades-long history of financial liens, had been iced out of Lee's life. Morgan and Anderson accused him of writing himself a $300,000 check and buying an $850,000 condo with misappropriated Lee funds.

"Mr. Lee told me I had given him a new lease on life after Mrs. Lee's passing," Olivarez says. "I had looked out for him during recent contract negotiations with Pow! [Entertainment, the production company Lee co-founded in 2001.] He gave me a check as a thank-you." As for the condo, Olivarez claims Lee is on the title and that, because of unspecified death threats Olivarez had received, Lee had wanted him to live close in "a secure building where he thought I'd be safe."

According to Olivarez, Morgan and Anderson felt threatened by his clout with Lee and fabricated these charges to drive a wedge between them. He says Morgan wanted Lee to quit Pow! and enter into an arrangement with a business contact of Morgan's, and he became upset when Olivarez thwarted that plan. Meanwhile, Olivarez says Anderson grew hostile when he scrutinized Anderson's claim that he owned the artifacts in the Stan Lee Museum outright, rather than possessing them on loan. (Olivarez provided an Aug. 7, 2017, declaration in which Lee asserts he and Anderson split the proceeds of the museum 50/50, that all memorabilia he provided to Anderson for display was "only on loan" and that Lee "could revoke the loan at any time." For his part, Anderson shared an undated document signed by Lee asserting the materials were given to the museum "as personal gifts.")

Olivarez believes Morgan led a "smear campaign" against him that continues to this day. He cites a recent attempt to taint an idea he calls a "cool" merchandising effort — blending Lee's blood into special "DNA" ink used in pens and stamps — into something sinister. He says that while J.C. helped originate the idea and Lee was on board, in an effort to discredit Olivarez, Morgan has been spreading lies that he stole the blood (including speaking with TMZ, which trumpeted that Lee's "Business Associate Is a Bloodsucker!!!" on April 2). Olivarez notes that Lee's physician not only approved of the endeavor but also is a signatory on each item's certificate of authenticity. (While Morgan does not deny speaking with the media when called, he denies being the source of leaks.)

"There's a reason [Morgan and Anderson] wanted me out of there," says Olivarez. "If I'm there, there are no shenanigans."

Not long after Olivarez was ousted, Morgan turned on Anderson, setting up a combustible battle of personalities: Morgan is a gossipy, fast-talking name-dropper in designer suits who frequently threatens to litigate to intimidate; Anderson's blunt and growly demeanor is intimidating on its own. Now each is attempting to position himself as the hero of Lee's story, the other as its villain.

Morgan, who attended Peter Parker's alma mater, Forest Hills High School in Queens, keeps a sculpture of Spider-Man in his bedroom. ("I think it's a character greater than Mickey Mouse, greater than Zeus.") Anderson, meanwhile, commissioned a life-sized fiberglass statue of Lee, bedecked with a pair of Lee's Ray-Ban glasses ("Joanie put them there herself") that resides in his living room. Anderson believes Morgan systematically moved to eliminate him from the fold beginning in January by leaking his criminal record (Anderson had been convicted in Riverside, California, of domestic violence against his wife in 2002, serving a year in prison plus 36 months' probation, then was given another 36 months' probation and anger management for a second domestic incident in 2010). Anderson says Morgan also planted a series of damaging news stories about his alleged failings as Lee's tour manager, including one involving his alleged culpability for an incident during which a masseuse accused Lee of sexual improprieties in his hotel suite during a Chicago convention. (Morgan denied leaking the story.)

What is certain is that Anderson was excommunicated from the inner circle on Feb. 16, ostensibly for his alleged theft of items for the museum, for allegedly skimming money from Lee's appearance fees, and for his lax management on tour — all of which he vehemently denies. Now Morgan and Anderson are engaged in an ongoing war that has engulfed Lee's staff.

For example, in a video shared with THR, one of Lee's nurses tearfully informs J.C. and Morgan that Anderson flagged her down on the street and offered her $50,000 to sign a declaration saying that Lee was being held against his will. Anderson acknowledges that he asked her to make such a statement, believing it to represent the truth, but maintains, "I did not bribe her. I only promised her one simple thing — to protect her. I said the police will protect her. I said, 'You are mandated to report if you see something wrong.' She said, 'I am an immigrant, and I can't get involved in anything.'"

Anderson points out that he already "did my time" for his convictions and "we do things in life that we regret." He says it's ironic that Morgan might be leaking his prison records, since Morgan himself is on 24 months' probation and required to complete a 12-session anger management program for a criminal threat conviction. "He's making an issue of something about me, which happened way before [his association with] Stan, while he has something that happened during his time with Stan. Who's calling the kettle black?"  (Click to Continue)

Full Article & Source:
Stan Lee Needs a Hero: Elder Abuse Claims and a Battle Over the Aging Marvel Creator

Teaching parents about guardianship of disabled children

Kaye Dent, an attorney with Frisse & Brewster Law Offices in Effingham speaks about guardianship vs powers of attorney

EFFINGHAM — Sometimes in life, we need a little help from the experts.

The Community and Residential Services Authority, Family Matters Parent Training and Information Center, along with The Autism Program at CTF Illinois, teamed up to host a free workshop for parents with special needs children, in order to help guide them through the transition into adulthood.

Kaye Dent, an attorney with Frisse & Brewster Law Offices in Effingham, specializes in disability and elder law. Dent spoke at the University of Illinois Cooperative Extension Office in Effingham, about different avenues such as guardianship, powers of attorney, and other alternatives for families. About 20 people attended.

“If you have a child with special needs, once they turn 17, you need to start thinking about what's going to happen when they turn 18 and you are no longer legally in control of their life,” said Dent.

During this transition period, parents need to determine such things as whether their child needs a guardian, or if they need a powers of attorney. Also, parents should be networking with agencies such Family Matters, The Autism Program at CTF Illinois and Community and Residential Services Authority, among others.

“Find support that is relative to your child's needs and ask what are the other support they need while they are transitioning, and also possibly, an attorney,” said Dent. “Any disability is one that results in special needs and keeps the child from being able to make all of their own decisions.”

Or it might be a situation that “in the foreseeable future” the child may not be able to make their own decisions, she explained.

The workshop was given to help parents know that once a child reaches age 18, the parent is no longer the child's legal guardian.

Kristin Gharst, regional coordinator for Community and Residential Services Authority, said the workshop was a collaboration of other agencies that invited Dent, who specializes in disability and elder law.

Guardianship is a way to protect those who cannot take care of themselves, make informed decisions or handle financial assets. The attorney outlined what is guardianship, and other alternatives that may be chosen if the person is capable of making some, but not all, decisions on their own.

Dent had worked with the disabled in high school and in college. She went on to earn a law degree, about the same time that the Americans with Disabilities Act became law. Among her law experience included working with a non-profit group that served exclusively people with disabilities.

Today, she helps families plan for the future, in the legal sense, including estate planning and special needs laws.

Dent explained that there are different kinds of guardianship and different kinds of powers of attorney for estate and health care needs.

“A person can be disabled in some way, but still be perfectly competent to sign the powers of attorney,” said Dent. “If the person understands who their family is, who they are and if they are oriented to time, and they know who they trust to handle their business or health care decisions, they can probably sign powers of attorney.”

POA, or what is a written authorization to represent a person, is the less expensive way and it keeps the child involved thereby maintaining maximum independence. The child may have a POA of their health care or estate management.

Or, in a guardianship of their health care or estate management, which is appointed by the court after reviewing documents from physicians about the disabled person's needs.

Dent reminded the parents in the room that having power of attorney over their child's financial matters doesn't give them power over everything.

“If there's something not covered in the POA document, the agent doesn't have the power to do it,” said Dent. “It is a set of instructions from the person signing the document saying 'I'm appointing this person as my agent and they can do these things.'”

While a POA can be revoked when the person assigning is competent, in a guardianship appointed by the court, you have a duty to act, until the court tells you otherwise.

“If you seek a guardianship, it has to have a physician's report,” said Dent. “The physician has to give an opinion that the alleged disabled person needs a guardian. And they have to state specific reasons for the court.”

The workshop included information such as the POA is decided by the disabled person's functioning, not a diagnosis. It keeps the person's dignity and prepares them for the most independence. Guardianship should be as narrowly tailored as possible.

Dent said while legal fees can add up, there are assistance agencies for civil matters, such as Land of Lincoln Legal Assistance Foundation, and also local attorneys that provide pro bono services in some qualifying cases.

“There are ways around the expense, if you qualify financially,” said Dent. “Nobody should think there is a financial barrier for guardianship, if they need it.”

Full Article & Source: 
Teaching parents about guardianship of disabled children

Ombudsman program gives protection to vulnerable adults

Residents of nursing facilities, long-term care facilities and residential homes for the aged have rights, but a question arises of whom to contact when residents or their families feel those rights have been violated.

Thomas Kahler, long-term care ombudsman with East Tennessee Human Resources Agency (ETHRA), will discuss issues surrounding this topic at 10 a.m. Wednesday, April 18, at Everett Senior Center in Maryville as well as other information, such as help provided with Medicare/Tenncare, admissions, medications, abuse, transfers, privacy, food, care, discharge and activities. The program is hosted by Blount County ElderWatch.

Kahler, who was named District 2 long-term care ombudsman July 1, 2017, said, “I am an advocate for residents and residents’ rights in nursing facilities, assisted living facilities and residential homes for the aged – licensed care facilities – in 16 counties. There are 128 of them in the 16 counties.”

These 128 facilities house more than 11,000 residents. An average of 100 or more complaints, concerns or consultations are received per month. These are discovered directly from visits to the facilities, calls from a concerned resident, family member or other responsible party, or from individuals reporting anonymously through various organizations.

Human dignity

“Primarily, I work to identify issues or complaints that residents may have,” Kahler said. “I investigate and work to resolve those complaints with the resident, with their consent, to approach the facility, the staff, and work through problems, or if the resident needs me to be their advocate, I will speak for them directly. My objective is to ensure they have the highest quality of care, which I feel equates into a quality of life and just basic human dignity.”

His duties also include acting on behalf of residents to ensure their stay is as pleasant and home-like as possible and providing assistance to family and resident councils to enable them to advocate for change.

With such a large district to serve, Kahler is charged with recruiting, training and certifying volunteer ombudsmen. “These are people in the community who have an interest in serving as a volunteer at local nursing facilities. The benefit of that is that they can spend a little more time in a facility than I can physically manage,” he said.

Kahler also works with other agencies, including the Department of Health, Department of Human Services, Adult Protective Services, Department of Mental Health and Mental Retardation, and law enforcement to ensure that residents are protected and receive the best possible care.


Kahler’s presentation will include a wealth of information about the ombudsman program, how it arose, who is eligible to receive the services, details of services offered and upcoming legislation to address the needs of older Americans. He will also speak about elder abuse, neglect and financial exploitation, what these may entail, how to recognize red flags and how to prevent your loved one from becoming a victim.

“Tennessee is a mandatory reporting state,” he said. “Both males and females are affected — there is no one typical victim. It can affect anyone in a long-term care facility. It can seem somewhat benign or it can be very egregious.”

Kahler gave examples of some of the issues he has helped residents resolve, from severe cases of abuse and neglect to making sure they are bathed regularly, receive assistance in eating, and are free of restraints, both physical and chemical. In one case, he was able to speak with staff and administrators at a facility and work out a solution for a resident whose room was at the end of a hall, who told him her food was delivered last and was always cold.

“It’s always something different,” he said.

If a resident or someone concerned with the resident’s welfare has a question or sees a problem, Kahler urges them to contact him. “I will work to resolve issues in the best way we can,” he said.

Full Article & Source:
Ombudsman program gives protection to vulnerable adults

Monday, April 16, 2018

Tonight on Marti Oakley's T. S. Radio: Abolishing Probate and Citizen Oversight Committees

5:00 pm PST … 6:00 pm MST … 7:00 pm CST … 8:00 pm EST
Join us this evening as we discuss the movement to organize Citizens Oversight Committee. The purpose of the committees would be to collect data on the nature and number of complaints to the BAR Associations, BAR and Judicial Oversight committees which seem to always end up being dismissed without penalty to the offender.

While the committees would have no force of law, they could be used to assemble data on judicial malfeasance and the corresponding actions by card carrying members of the BAR Association unions. It is glaringly apparent that allowing these associations to "self-police" is detrimental to the public.

Regardless of the fact that the judiciary has "voted" to give itself immunity from wrong doing.....the law and previous Supreme Court rulings say there is no such immunity. Its time to break up these monopolies that have destroyed our legal system.

LISTEN to the show live or listen to the archive later

‘You saved my life’: Woman ‘thriving’ after ordeal

Kise Davis, far left, celebrates the news she is moving from Las Cruces to California with her stepson, Larry Davis, and his wife, Marcia Davis.
On Dec. 16, 2016, Larry Davis got the shock of his life. A neighbor of his stepmother Kise Davis was on the phone, calling from La Mesa, N.M. “I think you should know,” the neighbor told him, “they came and picked up Kise and said they’re taking her to an institution.”

Based on an emergency petition filed by a handyman she had befriended and given her power of attorney, 85-year-old Kise Davis had been deemed incapacitated in a secret court action. She was placed in the care of a Las Cruces-based corporate guardian/conservator for her own good.

There was no court hearing or prior notice to her family, including her closest relative, her stepson Davis, who lives in Sonoma County, Calif.

It took Davis and his wife 14 frustrating months and more than $50,000 in legal fees and other costs to undo what had been done.

The handyman, who said he was only trying to protect Kise, offered to withdraw his petition just a month after it was filed.

But the case had taken on a life of its own as court appointees, being paid out of Kise’s assets, fought to keep her in Las Cruces.

“I think this happened because of the vested interest of the company assigned to manage (Kise Davis’) care,” said Las Cruces attorney Raul Carrillo, who represented Davis and his wife, Marcia. “It’s difficult to think there’s any other explanation. This is a situation where a woman is kept here despite the existence of family and a perfectly great place to go (in California).”

Sandy Meyer, owner of the guardianship firm, Advocate Services of Las Cruces, told the Journal that the guardianship fees were “minimal” and that she was “insulted” by the suggestion that profits were a motivating factor.

After more than a year of legal wrangling, Davis and his attorneys succeeded in convincing a state district judge at a closed hearing in late February to grant Kise’s transfer to California. It was the first time Davis testified in the case.

Davis said he was surprised that chief District Judge James T. Martin of Las Cruces also made him Kise’s guardian/conservator, considering that, last year, the judge put the corporate guardian in charge.

Kise was free to go home with Davis and his wife, the judge ruled.

Elated, but still wary, Davis and his wife were fearful of a new legal maneuver to keep Kise in Las Cruces. They hurried to get her out of New Mexico, packing up her belongings and flying back to California a week later.

She now lives with Davis and his wife, Marcia, pending a move to a nearby assisted living facility in Sonoma.

“You saved my life,” a happy Kise Davis told her stepson after learning the judge’s decision. “I owe you my life.”

Captive, of sorts

Kise, who is of Japanese descent, was described in court as an active and independent woman who has bouts of short-term memory loss. Her stepson said she had been a captive, of sorts, in the Las Cruces assisted-living facility.

She was housed in a memory care unit for people afflicted with more serious dementia, with residents who didn’t talk much, who watched television programs for 10-year-olds, one of Davis’ attorneys told the judge at hearing in April 2017.

The court-appointed corporate guardian dictated whom Kise could see and when; where she could go and what friends and family could tell her, Davis said. She wasn’t allowed to leave the premises, even to have lunch with a friend who had worked with her in the floral department at Hobby Lobby.

“I think she’s stifled to the point where she is not herself anymore,” testified Rita Diaz-Yarter, Kise’s friend from Las Cruces at the hearing in February. “I don’t believe that she should be here, left to die alone in a place where she has no family.”

Alleged ‘smear’

Blocking their attempts to get Kise to California was a Las Cruces attorney who had been appointed by the judge as a guardian ad litem, or GAL, to represent Kise and advise the court.

In most cases in New Mexico, family members are appointed as guardians or conservators.

But Kise’s guardian ad litem, CaraLyn Banks, argued that Kise should stay in Las Cruces under a corporate guardianship.

Banks told the Journal last week that she was acting in Kise’s best interest.

“As a guardian ad litem, you have a certain responsibility to make sure your clients are safe, and I feel like I did just that,” Banks said.

Court docket sheets show that Banks has represented the owner of Kise’s guardian/conservator firm, Advocate Services of Las Cruces, on other legal matters.

Banks also had extensive experience with the company in guardian/conservator cases.

As a petitioner’s attorney, Banks has filed more than 65 guardianship cases since 2012 in which Advocate Services was appointed. Under state law, petitioners propose the guardian to be appointed.

Banks told the Journal she had no conflict of interest in taking on the GAL role in Kise’s case.

This was the La Mesa, N.M., home where Kise Davis, now 86, lived alone after her husband died. Her corporate guardian sold the home last November. (Colleen Heild/Albuquerque Journal)

She said she never represented Meyer personally and only worked for her on conservator cases involving financial matters.

Banks said there are only a few guardianship firms in Las Cruces, explaining why she recommended Advocate Services so often.

Davis, meanwhile, said the campaign to keep Kise in New Mexico involved personal attacks on him.

“It’s hard enough for families to cope with the emotional reality of dementia (of a loved one) without having the added stress and abuse of being bullied, threatened and smeared by court appointees.”

Banks said she never bullied Davis or his wife.

“I bent over backwards to interview them, to talk to them, and they just didn’t like what I had to say,” she told the Journal.

Meyer, of Advocate Services, told the Journal, “Actually, it was Mr. Davis who was behaving badly. We refused to be subjected to his accusations and tirades. After he was represented by his attorneys, we never had further conversations with him.”

At times, during the 14-month ordeal, Davis said he and his wife felt like they “had nowhere to turn.”

He said he checked with an attorney in California for advice but was told that (situation in New Mexico) “just can’t happen. That this would never happen in California.”

The deeper tragedy, Davis said, is that “they took away from Kise one of the last, best years of her life.”

Samurai woman

After Kise’s neighbor told him his stepmother had been taken away, Davis initially thought there had been a mistake.

A retired educator with a doctorate in cultural psychology, Davis said he and his wife had, since 2014, been trying to figure out how to get help for his stepmother, if she needed it, in the home she shared with Davis’ father until his death in 1993. The home is in La Mesa, a rural area south of Mesilla, N.M.

One physician concluded that, eventually, given her memory issues, Kise would need to be cared for in an institution. But that could be two weeks away – or 10 years away, Davis said.

Davis became Kise’s power of attorney and said he asked the state Adult Protective Services division twice in 2016 to assess whether his stepmother could live alone. He said he was told that she was OK.

Kise, he said, wanted to remain at home.

Had he removed her against her will, Davis said, “I knew she would never speak to us again.”

“She’s a stubborn, Samurai woman,” Davis said of the petite woman, who married his divorced father when Davis was 14 years old.

“My life became a lot better when she married my father. He was a career military officer who had served in World War II and Korea. I’d gone to Berkeley, and there were a lot of issues. Kise was always the peacemaker, who convinced me to see his side. Frankly, I wouldn’t have had a father (without her).”

Davis, 75, said he and his wife, Marcia, were in contact with Kise throughout 2016 – until she was placed under the guardianship, although it became difficult to reach her by phone.

The couple had visited Kise that June and planned to travel to Las Cruces again after the Christmas holiday.

Davis said he was never notified that Kise had transferred her power of attorney from him to Larry Franco, a handyman/gardener who said he had known Kise for 25 years.

Davis said he had never met Franco, but his stepmother told him Franco was helping her.

In the fall of 2016, Davis said he learned from the state Adult Protective Services that Franco had called the agency for an assessment of Kise, and protective services concluded she could live alone.

The Adult Protective Services report noted that Franco was Gov. Susana Martinez’s brother-in-law, Davis said.

Franco told the Journal he spent 40 to 50 hours a week helping Kise with projects and errands without pay.

“This has been a nightmare,” Franco said last week. “I was traumatized.”

Franco acknowledges he was slow to realize Kise’s signs of dementia, because, some days, “she was sharp as a tack.”

Franco said he never asked to become her power of attorney. He said that was “Ms. Davis’ idea.” That was also true of her decision to change her will to give him 30 percent of her estate and be her executor, Franco said.

Kise owned her own home and receives spousal military retirement benefits.

In court testimony, Franco said the day came when he had to take away Kise’s car keys for her own safety. When she asked, he denied doing so, Franco testified.

In retrospect, Franco told the Journal he probably should have contacted Larry Davis before contacting his lawyer, who filed the emergency guardianship petition that listed him as the petitioner.

“But I totally believed her (Kise) when she said he (her stepson) wasn’t helping her,” Franco told the Journal. “That’s all I needed to hear.”

Donnie Mendez, left, meets with his former neighbor Kise Davis, right, after a judge agreed she could be transferred from a corporate guardian in Las Cruces to California. Mendez first alerted her stepson, Larry Davis, of Sonoma County, Calif., that Kise had been taken to an “institution” on Dec. 16, 2016.

Kise’s longtime neighbor, Donnie Mendez, told the Journal he noticed that someone had put chains with locks on the wrought-iron gates around Kise’s house. Franco said Kise asked him to do so, because she believed people were stealing from her.

It was Mendez who noticed strangers at Kise’s house, inquired what they were doing, and picked up the phone to alert Larry Davis that Kise was taken away.

‘Interested person’

What happened to Kise Davis is legal under New Mexico law. Several legislative guardianship law reforms take effect July 1, including expanded notification to families of court hearings.

But there will still be a narrow exception that permits one party to seek a court order so guardians can take custody of an alleged incapacitated person – without the judge hearing from others, including, in this case, family members.

“It’s a big loophole in the law,” said Davis. Had he been notified beforehand, Davis said he believes he could have kept the guardianship petition from being filed and found a better remedy to care for his stepmother.

Such emergency temporary guardianship/conservatorship orders are permitted under the law when the usual notification requirements would cause “immediate and irreparable harm to the alleged incapacitated person’s physical health.” The law allows any “interested person” to initiate the proceedings.

Franco’s petition alleged that Kise’s physician advised that she was in need of immediate placement, that she owned a loaded revolver that was missing and that she couldn’t understand her basic finances, having overpaid the IRS.

A letter was attached – not from Kise’s doctor, but from someone on his staff. Later, there was testimony of rotting food in her refrigerator.

Franco didn’t want the job of guardian, so his attorney nominated Advocate Services of Las Cruces.

Its guardians aren’t nationally certified. But Meyer, owner of the company, said they still adhere “to all ethical and legal and moral guidelines.”

The emergency petition never mentioned that Kise had a stepson. Davis was described only as Kise’s “former” power of attorney “who took no protective action” for Kise and”despite medical concerns allowed her to remain, unsupervised, in her home.”

Davis said the court visitor, appointed to investigate the need for a guardianship, said she had been told that Davis was a “distant nephew.”

After Kise was moved out of her home, Franco said he got a phone call from Davis.

As Davis recalled, Franco said he was “in over his head” trying to help Kise.

The two men “compared notes,” realizing Kise had negative things to say about the both of them, Franco told the Journal.

By mid-January 2017, Franco and his attorney had offered to withdraw the petition for guardianship, as long as Kise received 24/7 care in California, Davis told the Journal.

But Banks, as Kise’s appointed guardian ad litem, wouldn’t agree.

She told the Journal last week that Kise had “revoked” her stepson’s power of attorney, “so there was nobody who was able to protect her at the time.”

Banks said she also had “concerns” about Davis. She filed a report with the judge, citing Davis’ “conduct” prior to the temporary guardianship petition being filed. Her report also mentioned “representations made by Mr. Davis’ former counsel regarding his questionable competency.”

Attorney Cristy Carbon-Gaul of Albuquerque, who initially represented Davis, told the Journal that Banks was “misstating what I said (regarding the competency issue).”

Davis and his wife strongly deny the dementia claims, which they say were part of the “smear” campaign to keep Kise in New Mexico.

“For 14 months, (the argument) was that I was negligent in taking care of her and I am not suitable as a guardian,” Davis said.

Change of heart

At the initial hearing in the case in March 2017, Judge Martin sided with Banks.

“Even though Larry Davis has a relationship with her, I think that a corporate guardian and conservator would be better to maintain a professional relationship with Ms. Davis,” Martin ruled.

Kise was “high functioning but does suffer memory lapses,” Martin stated. “She is sometimes overly trusting of individuals she doesn’t know.”

The judge ordered that the parties “attempt” to transfer Kise to an appropriate facility in California.

But, two weeks later, Davis and his wife had to travel back to Las Cruces from California for another hearing, because Banks refused to sign off on the proposed written order, questioning its language.

By then, Davis and his wife had retained another attorney, Peter Goodman of Las Cruces.

“I’m scared by the thought of how much she (Kise) is paying just to have this little hearing to argue about whether to put something in an order that the Judge said he was going to put in his order,”Goodman said during the April 2017 hearing. “It should have been resolved consensually. How much is Kise paying for all of the people who are here today?”

The judge gave the parties 120 days to “file their motion for transfer,” adding that an extension would be granted for “good cause.”

That deadline came and went without any action.

Banks told the Journal that the delay occurred because “we couldn’t get the property (Kise’s home) sold quick enough so we couldn’t get her transferred to a corporate guardian and conservator in California.”

Even after Kise’s home sold in November, Banks never filed for the transfer. Instead, she filed a new report with the court reiterating why Kise was better off in New Mexico.

“There was a concern about money, a concern right from the start,” Banks told the Journal.

Davis hired new attorneys to enforce the judge’s order allowing Kise to move to California.

Then they waited four months for Martin to hold a hearing.

‘She’s thriving’

The hearing on Feb. 26 focused in part on whether Kise could afford to move.

Attorney Carrillo, now representing Davis, told the judge that, despite claims by Banks and the corporate guardian, Kise wouldn’t be paying more to live in California.

Getting rid of the cost of a corporate guardian would provide Kise enough money to live at a nearby assisted living facility near Davis in Sonoma, Calif., Carrillo said.

Alaina Johnson of Advocate Services testified that the corporate guardian’s services, deducted from Kise’s assets, amounted to nearly $500 a month, or $75 an hour.

When Carrillo asked what work was performed to justify the cost, Johnson responded that she paid Kise’s medical, pharmacy, housing and guardianship company bills.

Franco took the stand to endorse Kise’s move to be closer to her family.

He also told the judge that Kise’s corporate guardian had asked him to provide a statement “supporting them, that everything was fine, Ms. Davis is doing well (in New Mexico).” He never did so, and testified that he hadn’t seen Kise in a year.

Judge Martin ruled that he had assumed Kise would have been moved to California within six months and was “disappointed” that hadn’t happened.

Earlier in the case, Banks proposed that she and Advocate Services research and arrange the transfer to California and the hiring of new corporate guardian/conservator in California.

But the judge found that Larry Davis was “qualified, willing and able to serve” as Kise’s guardian and conservator. Martin approved the transfer and dismissed Banks and the guardian from the case.

The judge also ordered Advocate Services to file a financial accounting of Kise’s assets and expenses, but Davis said that, so far, the records provided are “wholly inadequate.”

Davis said he did notice that Banks’ fees of about $20,000 included a $12,000 payment the day before the final hearing.

While living in California, Kise has been reading books on Japanese gardening and birds, her stepson said. She says she wants to tell her story.

“She’s thriving,” her stepson said. “It’s like coming out of prison after 14 months. We’re free at last.”S

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‘You saved my life’: Woman ‘thriving’ after ordeal