Saturday, June 23, 2018

Couple sentenced for financially exploiting elderly man locked in room

Kevin Miller and Janice Miller
PINEVILLE, Mo. — A husband and wife from southwestern Missouri have been ordered to pay $5,000 in restitution for cashing government checks intended for an elderly man who was found padlocked in a bedroom in their home.

The Joplin Globe reports that 47-year-old Kevin Miller and 50-year-old Janice Miller of Goodman pleaded guilty Tuesday to financial exploitation of an elderly person. The plea deal dismissed kidnapping and armed criminal action charges. The couple received a suspended sentence.

The Millers were arrested after a McDonald County deputy, acting on an anonymous tip, found 79-year-old Herbert Spell inside a padlocked bedroom of the Millers’ home. Spell told the deputy he had been locked in the room for six months, fed “sporadically,” and rarely allowed to shower.
Full Article & Source:
Couple sentenced for financially exploiting elderly man locked in room

Moving an Aging or Disabled Parent Into Your Home: 4 Things You Should Know

It’s every adult child’s nightmare: getting a phone call in the middle of the night from an aging parent, or worse, the hospital. Maybe there’s been a fall or a medical emergency. Perhaps the early stages of dementia have advanced more quickly than anticipated, and there’s been an incident. Either way, one thing is clear in this situation — it is no longer safe for the parent to live alone.

Deciding to move an aging parent — especially one who is disabled — into your home isn’t a decision anyone makes lightly, but it’s often the most affordable option. One out of every four caregivers lives with the person they are caring for. While this can be very rewarding to both the son or daughter and the aging parent, there are several important pros and cons to this arrangement. On one hand, if the parent is mentally and physically sound, they can help in small ways with the kids, housework or finances. On the other hand, if they require constant care due to a disability or illness, the entire family might experience moments of added stress, anxiety and frustration.

That’s why you need to weigh options and considerations when an elderly parent moves in with you. Though there might be heavy emotions surrounding the decision, it could still be the right choice. This guide will help you make that decision by giving you some insight on:

  • Understanding how to give the right kind of care.
  • Estimating the costs associated with assisted living facilities versus in-home care.
  • Making your home elderly-friendly.
  • Adjusting the whole household to the lifestyle changes.

Giving the right kind of care

Being the child of a senior who needs more vigilant care means you have your heart in the right place — your parent’s health and well-being is your priority However, that doesn’t necessarily mean you are as qualified as an expert to give the best care.

If Mom or Dad is still relatively healthy and independent, moving him or her in will be much simpler and smoother. However, most people don’t get to the point where they consider moving a parent into their own home unless in response to a specific health crisis. In that case, it’s important that you know your parent’s illness or limitations very well. Consider where this health situation is likely to go. How will a chronic illness, a broken hip or mental illness progress one, two or fives years from now? You may be prepared today, but you also need to think about how prepared you will be later on.

If the health situation is serious or extreme, you may not be capable of giving the best quality of care. Living with you might only be a temporary solution. This could help ease the transition to a nursing facility, or you could hire an in-home professional to support your caregiving responsibilities. However, if their health requires 24/7 monitoring, specialized care or equipment, it may be best to to move them to a nearby nursing home or assisted living facility.

Estimating the associated costs

Sometimes the decision to move in an elderly parent comes down to cost. On average, a nursing home can run about $80,000 per year and an assisted living facility costs roughly $43,000 per year.

However, there are also care costs to consider when moving Mom or Dad in. Things may be easy now, but the amount of assistance needed will most likely increase as they age. That means that sooner or later you might consider finding an in-home aide. A caregiver hired to help with self-care tasks like bathing, feeding and chaperoning activities can cost about $20,000 per year for full-time help.

For other tasks around the house, you may want to consider hiring an errand runner or personal assistant to ease the burden on both you and your loved one. These services can cost about $25 per hour, and may come in handy in a pinch. If you’re reacting to a recent health crisis, you may need to hire a caregiver with specific medical training, which can double, or even triple, the cost of care.

Providing full-time care may entitle you to financial or other forms of assistance. Do thorough research to help you prepare and budget for the many facets of care giving.

Making your home ready for care

Moving in a parent who is aging or disabled is, in all probability, the most cost-effective solution for many people. However, that doesn’t mean that there won’t be some expenses associated with renovating areas of your home to make it safe and secure for senior care. Some common remodeling projects include:
  • Installing an automatic lift to help the senior navigate flights of stairs ($1,500 – $3,000).
  • Building a ramp in addition to your front steps if the senior needs wheelchair access ($400 and up).
  • Widening doorways for wheelchair and walker access ($500 – $1,000).
  • Converting an attic, basement or den into a bedroom, possibly for you or your children. You’ll want your senior to be comfortable, and usually, a first-floor bedroom without stairs is the safest place for them to reside ($1,500 – $5,000).
  • Adding a new bedroom or suite for your aging parent, especially if there is no other room to renovate ($100,000).
  • Adding handrails and modifications to the bathroom to prevent slips and falls ($40 per foot).
  • Covering prescription medication costs and healthcare copays.
  • Paying additional bills for electricity, groceries and water.

The National Alliance for Caregiving (NAC) released a study stating that out-of-pocket caregiving costs can run about $5,500, but other studies have shown the costs may be much higher, topping at around $15,000 per year for care.

While these renovations are less of a financial burden than a nursing home or assisted living facility, not planning for any costs can creep up on your finances. To avoid problems or roadblocks later, talk to your parent and family members about this up front.

Adjusting to the lifestyle changes

There are going to be more sacrifices than just finances and space when you move in an elderly parent. Will your child’s music disturb your aging parent? Is your elderly housemate as clean and tidy as you expect the rest of your family to be?

Instead of focusing on the potential issues, think about this as an opportunity for everyone to grow. Creating room for your parents in your home can help your children learn how compassion leads to joyful compromise. It also empowers everyone to try out critical thinking and conflict resolution skills. If your mom or dad is uncomfortable with your teen’s loud music, ask your child to use headphones after a certain hour, or pick up a pair of noise cancelling ones for your parent.

When you bring a senior who needs extra care into your home, some of your vacation plans will likely have to change. You may have to put off some vacations, while others may just need to be modified or adjusted to accommodate for accessibility. Again, get the whole family involved in the decision-making process, especially if you feel like resentment is building.

Caring for an aging or disabled parent can help you give back some of the love and devotion they gave to you when you were young or going through challenging changes. There will certainly be stressful times, and not everyone will be satisfied with each compromise or outcome. However, if you feel in your heart that this is the right decision, the relief you feel being able to keep your aging loved one safe will override most tense and stressful moments. Remember, you are one of many to make the choice to have your parent live with you; there are others out there, in groups online or in person, who can provide emotional support when you need it.

Full Article & Source:
Moving an Aging or Disabled Parent Into Your Home: 4 Things You Should Know

Fort Myers man found guilty of exploitation of an elderly person

John James Dunn
A Lee County court found a man guilty of exploitation of an elderly person or a disabled adult for a 2016 incident where he scammed $2,000 from an 80-year-old woman under the guise of a fake air conditioning service contract.

John James Dunn, 37, went to the woman's Fort Myers home to sell her air conditioning services. She agreed to pay $3,000 through financing to have her air conditioner refurbished. The owner of the company Dunn worked for went to the woman's home and discovered that she didn't fully understand the contract, so he canceled the contract and did not charge her, authorities said.

The company owner told Dunn he had canceled the contract. Dunn proceeded to create a fake contract using letterhead from an air conditioning company that previously employed him. He convinced the woman to go to the bank and withdraw $2,000 to pay for the fake contract.

A month later, Dunn returned to the home while a well-being check was being done at her home. Dunn told the person checking on the woman that he worked for the air conditioning company on the letterhead, which was untrue, and introduced himself using his deceased father's name, authorities said.

He is then said to have aggressively demanded that the woman pay an outstanding balance of $1,000.

Dunn left the home without getting the money and was reported to law enforcement. The Lee County Sheriff's Office investigated and then turned the case over to the state attorney's office.

Dunn faces up to ten years in jail. His sentencing is scheduled for July 24.

Full Article & Source:
Fort Myers man found guilty of exploitation of an elderly person

Friday, June 22, 2018

Guardians from Hell

The completely legal, utterly grotesque system for undermining the rights of the elderly 

By Gretchen Rachel Hammond

At 92-years-old,Virginia Jean Wahab hadn’t lost any of the vitality and health she maintained throughout her life. She raised two daughters as a single mom and made a home for them in the Detroit, Michigan suburb of Oak Park. Wahab worked on her feet and didn’t retire from her job at a local family restaurant until she was 88.

Fiercely independent, Wahab was quite happy living at home after retirement. She had a healthy social life. She did her own grocery shopping and chores. She so rarely needed to pay a visit to a hospital that her health insurance was barely touched.

Her eldest daughter Mimi Brun converted to Judaism at the age of 18. She went on to become a prolific Jewish artist, who sold her work all over the world. In 2010, she began to establish art schools for children under 12 in France and then Chicago. Although Brun was estranged from her younger sister, she and her mother were extremely close. Wahab was Catholic, but Brun noted that she had the fastidious nature of a Jewish mother.

Wahab’s legal affairs were in order including a durable power of attorney she had signed in January, 2016 which named Brun as a patient advocate (the handler of her medical needs) as well as giving her daughter charge of her financial affairs should she ever become incapacitated. Wahab’s home was also registered in Brun’s name in a quit claim deed signed by Wahab on December 29, 2014.

The two talked on the phone every day. Brun particularly relished visits with her mother during which she would gift her a piece of art. Wahab was an eager collector of Brun’s work.

That was two years ago. Everything has changed since then.

In 2016, after a fall at her home, Wahab was diagnosed with a slight cognitive problem but otherwise deemed healthy. Wahab’s doctor recommended that Brun find her a short-term rehab facility.

“I looked for a Jewish one,” Brun said. “They were all full. I found Lourdes because it had a five-star reputation.”

On February 23, that year, with the approval of her HMO, Wahab was admitted for short-term rehabilitation at Lourdes Senior Community in Waterford, Michigan—a nonprofit elder care facility founded by Dominican nuns in 1948. According to the organization’s 2016 I-990s, Lourdes listed end of year assets of $22,096,166.00. Expenses totaled $14,476,851.00

Brun said she made her mother’s meals and went to each of her physical and occupational therapy sessions.

“The insurance granted her up to 120 days,” Brun remembered. “She was excelling like a champ but the therapist at Lourdes started telling me she suspected Mom should not live alone. Mom and I decided that I was going to go back to France and Chicago, put my businesses on hold, rent out my homes and move my work and studio to Mom’s. It was what she had dreamed about—to spend the end of her life living with me.”

Brun left for France, placing her aunt and sister in charge of caring for Wahab while she was in rehab.

“I called Lourdes every day,” Brun said. “Then the insurance cut off.”

Brun asserted that she spoke to Lourdes social worker Sara Van Acker and pledged that she would enter into a payment plan. Shortly thereafter, however, she received an email from a Lourdes administrator which stated “Your payment plan with Sara Van Acker was not approved by me. I cannot receive partial payment nor be patient for your payment plan time frame.”

On June 6, Lourdes filed a petition for guardianship on the grounds of a $31,416.65 past-due bill. Brun said that the petition notice was sent to an address that was not hers. The petition shows that the address used to serve Brun belongs to an apartment complex in Harper Woods Michigan—one hour’s drive from Lourdes and 30 minutes from Oak Park. On the address, no apartment number is listed. It is also not the address listed on the Power of Attorney paperwork Brun says she provided to Lourdes.

Brun rushed back to Michigan. On the morning of June 29, 2016, she attended a hearing presided over by Oakland County Probate Judge Linda Hallmark, one of four judges serving there. Hallmark vacated Wahab’s power of attorney and appointed a local attorney Jon Munger as Wahab’s guardian. According to Brun, neither she nor her mother ever requested Munger’s services.

Also appointed by the court was a man named Matthew Jason Brown, another local lawyer. Brown was named as Wahab’s guardian ad litem (GAL)—a person entrusted with investigating what course of action is in the best interest of a person unable to care for themselves. The June 29 hearing was also attended by two representatives from Lourdes: Van Acker and Lisa Hibbert from the organization’s accounts receivable department.

According to court transcripts from that morning, Van Acker stated that she had filed the petition for guardianship because “there’s a concern about the nursing home being paid.”

Brown wanted to know if an application for Medicare benefits for Wahab had been made.

“Not to my knowledge,” Van Acker replied.

“Are you familiar with [Wahab’s] medical condition?” Brown wondered, to which Van Acker answered “slightly.”

When Brown asked Brun if she had any objection to the petition, Brun replied “I am contesting this hearing because I was not served. I’ve had no time to get a lawyer.”

“Well, you’re here Ma’am,” Hallmark replied, “and it’s a guardianship so there is some urgency about it, so we’re going to proceed.”

When Brun protested that she had been appointed as Wahab’s guardian through a power of attorney, Hallmark quickly rebuked her.

“That’s different than an appointment by the court,” Hallmark said. “Has any court appointed you guardian?”

“No, but I haven’t applied for it yet,” Brun replied. “I’d like to petition for it, but I need time.”

Hallmark did not respond to this request.

In delivering his report to the court, Brown went on to state that he had visited Wahab at Lourdes only two days earlier. During that visit, he said, he “explained to Wahab her rights and gave her a copy of [the petition].”

“She didn’t have any objection to the appointment of a public administrator at that time,” he added. “But I would note that she was not oriented to date, time, and place.”

Brown also stated that he “went over [Wahab’s] medical condition with Ms. Van Acker and she went over with me sheets that said she was suffering from dementia, unspecified lack of coordination, osteoarthritis, two…type two diabetes, muscle weakness and hypertension.”

Transcripts from that day indicate that Hallmark never asked for medical reports to prove Brown’s assertions.

Brun told Hallmark that she had witnesses who would speak on her and Wahab’s behalf. Those witnesses, however, were never called.

“My Mom needs love,” Brun went on to tell Hallmark. “No one loves my Mom more than me. When I asked my mom ‘what’s your greatest desire?’ she said ‘I want to go home. I want to go home with you.’”

“I want to take her home,” Brun begged Hallmark.

“I’m going to grant the petition,” Hallmark said. “I would like to appoint Mr. Munger [as guardian]. If he thinks that an independent medical or some other action is required that’s fine. I’m also going to appoint [Munger] as special fiduciary to make sure we have the Medicaid application on track. I’ll revoke the power of attorney today. If it’s appropriate that [Brun] should serve, if you want to get counsel and bring the matter in, we’ll consider that.”

“She hasn’t lost any of her rights…” Hallmark added, speaking of Wahab. “She has a guardian and it’s Mr. Munger…”

Brun made one last desperate plea. “Is there a reason why?”

“Yes,” Hallmark replied. “Because she’s in need of a guardian and I’m appointing Mr. Munger. That’s why.”

Hallmark never mentioned the grounds by which she was revoking the power of attorney.

The court adjourned.

Brun’s fight to have her mom released from Lourdes would eventually result in Hallmark issuing an injunction restraining her from entering Lourdes premises, denial of her visitation rights (even when chaperoned by a nun and a locally renowned, retired judge) and a bench warrant from Hallmark’s court for Brun’s arrest.

Two days after Munger had been assigned, Brun received an email from his office which stated “It will be necessary to close [Wahab’s] bank accounts and locate all assets in order to apply for Medicaid. I understand that there is at least one account at ****** Bank with both of your names on it. It would be more efficient if you cooperate with the closing of the account(s). I will need proof of closure for the Medicaid application. I will then open a guardianship account at ******** for your mother, pay her bills, and apply for Medicaid.”

Even though Wahab was originally admitted for a short-term rehab at Lourdes, on July 1, 2016, according to his own accounting, Munger completed a long-term medical assistance application that entitled Lourdes to three months of retroactive disbursement, faxing the application to Michigan State’s Department of Human Services. Five days later, Munger completed and mailed another admissions packet to Lourdes for Wahab.

A July 17, 2016 affidavit, signed by Wahab and filed in court, read “I want to go home with my daughter Mimi.”

On August 15, 2016 Brun’s then-attorney sent a letter to Lourdes CEO Sr. Maureen Comer stating “Ms. Brun has not and has never been opposed to negotiating the payment of the outstanding bill. Ms. Brun has made arrangements to take Ms. Wahab home and Ms. Wahab has even signed an affidavit stating she wants to return home.”

Two days later, Brun, her attorney and Lourdes received an email from Munger which stated that he was clarifying “for both Lourdes and for yourself, that I am not authorizing either Mimi Brun or yourself to discuss, negotiate or otherwise become involved in any potential discharge plan nor payment.”

Munger also went on to say “there have already been repeated complaints about your client’s behavior while at Lourdes facility. I have not yet taken full steps to curtail your client’s visitation, but we may need to revisit that issue.”

In a subsequent series of emails Brun’s then-attorney called Munger’s actions “highly inappropriate. You are needlessly dragging on this litigation so you can keep billing and billing.”

Munger replied “You and your client will cease any communication with Lourdes administration or management.  Your failure to abide by this requirement will simply force me to place the matter before Judge Hallmark, where I will ask that both you and your client be sanctioned for this grossly unprofessional, abusive and threatening behavior.  I simply will not allow either of you to interfere with Virginia’s care.”

On August 18, 2016, Munger billed Wahab $245 for his drafting “of a petition to limit visitation.”

An email that day from Munger to Brun’s attorney stated that it was “due to your attempts to pay Lourdes.” It makes no mention of any complaints about Brun’s behavior.

Because he was Wahab’s guardian, Munger was legally permitted to bill his ward for any work on her behalf. A 2017 statement of other fees and services billed to Wahab by Munger and Associates shows that in little over a three-month span, Munger billed Wahab a total of $6,097.00 in fees and services.

Brun filed an emergency petition to have Wahab released from Lourdes. In an October 5 hearing in Hallmark’s courtroom, Munger was represented by attorney Joseph Ehrlich.

Munger billed Wahab $450 to “attend hearing on court motions and “[a] conference with judicial staff attorney.”

Following the hearing, Ehrlich secured an order from Hallmark compelling Brun to pay $25,000 to Lourdes and gave her 25 days to come up with the cash.

Brun told me that, because it did not include the provision for her mother to be released, she refused to pay it.

A subsequent motion Brun filed to vacate the order stated that “upon review of the transcript of this hearing, at no point did Brun ever agree to pay $25,000 to Lourdes. It does not comport with the settlement placed on record.”

Lourdes retained attorney Mary Lyneis to represent them.

A November 2016 letter from Lyneis to Brun accused her of violating “Court Orders entered into the Probate Court.”

While it did not mention which of those orders Brun was supposed to have violated, it went on to accuse her of “Threatening conduct toward the staff at Lourdes. In addition, you upset your mother with unfounded allegations the staff at Lourdes. As a result, you are hereby notified that you are no longer permitted on the premises. Should you attempt to enter the premises, appropriate law enforcement will be contacted.”

The letter offered no evidence of any court order sanctioning a decision to bar Brun from the premises.

In a February 2, 2017 email, Lyneis told Brun “We want to be paid. You cannot expect to show up to see your mother when you have not paid for the privilege and you have disappeared since November.”

A subsequent email from Munger to Brun stated “If you want to visit your mother and or even remain in contact with her, you would be better served by complying with the existing court order than by continuing to harass everyone trying to see your mother.  In particular, pay the $25,000.”

Concerned about being able to pay her legal fees, Brun sold her and her mother’s home to Michigan banker Bradley Silverstein on the proviso that he draft a lease for her and Wahab to live there. A lease with that condition was drafted on February 28, 2017.

Two days later on March 1, 2017, Ehrlich, Lyneis, and Munger appeared before Hallmark and asked for a series of ex parte orders against Brun.

Ex parte orders are issued without the presence of or even notification of the parties it affects. Since due process is Constitutionally guaranteed, these orders are supposed to be temporary while allowing ample room for them to be contested.

Brun was not present at the hearing when the ex parte orders were issued. At the time, with the support of her doctor and with his medical order in the court file, she had requested a two-month medical leave from the court.

Hallmark also issued a permanent injunction against Brun restraining her from entering Lourdes premises, and a bench warrant for arrest alleging that her refusal to pay the $25,000.00 was in contempt of court.Regardless, Munger and Ehrlich requested that the house be transferred back to Wahab’s name “and then [to] permit Jon Munger to sell the house in order to pay for her care, so that [Wahab] would then qualify for needs-based benefits.” The court issued this order on June 28, 2016.

Brun told me that, in the months that followed, Munger attempted to force his way into the house. On August 8, 2017, she filed a police report, complaining that Munger had attempted to enter the house on three separate occasions.

When Brun replied that she had never received such an order, Munger wrote “A hearing was held on June 21 in front of Judge Linda Hallmark, and you received notice of that. I have every legal right to enter your mother’s home, and I have done so.”A June 30 email from Munger to Brun read “As you are aware, Judge Hallmark entered an order in the eviction case requiring you to vacate your mother’s home by Wednesday, June 28th 2017.  I went to the home with several others on the following day, June 29th, and it was apparent that no one was residing in the home.  Accordingly, we had the locks changed and the home secured. Upon our entry into the home, it was apparent that you had left a great deal of valuable personal property behind, including artwork.  We deem this to be abandoned property under the law.  For the time being, we are holding that personal property and artwork as security for repayment of the $25,000 you were ordered to pay on October 5.”

Brun has filed criminal police reports for larceny home invasion and theft against Munger with the Oak Park Police. The police took no subsequent action.

On August 30, Munger billed Wahab $245 for “a hearing to set aside deed” and $119 for calls to the real estate agent and the locksmith.

Brun said she was not present at any such hearing.

Brun’s attorney Phillip Strehle would later tell Hallmark “In October ’16 [Munger] filed a forwarding address card with the post office which has Mimi’s name on top and Munger’s address on it. So, he already knew, as of October ’16, that whatever mail he sent to the house, she would never get, because he sent it to himself. Mr. Ehrlich told me out in the hall that the order of August 30 was entered because it was uncontested. There’s a reason why it was uncontested; because Ms. Brun was not properly served.”

Brun finally got a break in October 2017 when attorney Lisa Orlando became Wahab’s new Guardian ad Litem.

In two reports Orlando submitted to Hallmark in 2018, she wrote “I visited [Wahab] at Lourdes Senior Community first on November 16, 2017 and then again more recently, on February 28, 2018, at which time I again served her a copy of the petition, notice of hearing and the order appointing a Guardian ad Litem. I don’t believe that Virginia was able to understand the information being presented, however she did clearly say that she did not want to go to court. I then asked her if she wanted Mimi to be her guardian and she said ‘of course!’”

“In the opinion of this GAL, it is Virginia Wahab a 94-year-old woman, who is paying the price of these ongoing legal disputes and suffering harm by not being able to see her daughter for more than 17 months,” Orlando added. “To isolate and prohibit an aging Mother from seeing her daughter is heartbreaking to this GAL. Mimi Brun has priority under the statute and is Virginia’s choice to be her Guardian.”

An affidavit signed by Wahab’s sister Sr. Helen Essa reads “Mimi is a devoted daughter and attended to every detail of her mother’s care not ever putting her own needs first. I know how desperate my sister is to go home with Mimi and have Mimi care for her. I pray, as we all do, that my sister will not die in a nursing home.”

In concluding her report, Orlando cited Michigan statutes.

“Under MCL 700.5313(3)(b), [Brun] has priority over a professional guardian,” she wrote. “’If suitable and willing to serve as guardian, the court shall appoint, an adult child of the legally incapacitated individual.’” Under MCL 700.5313(2)(b), [Brun] is Virginia’s choice to serve as her guardian. I discovered no clear and convincing evidence why the Petition should not be granted.”

Yet, Munger still remains as the sole guardian for Wahab who is still at Lourdes. Despite her best hopes, Brun has yet to see her and bring her home

The question remains as to why the Oakland County Probate Court effectively became a debt collector for a nursing facility and why the now 95-year-old Wahab is still held there despite her own Guardian ad Litem opinion that Brun replace Munger as guardian and family members’ pleas to Hallmark that Wahab be allowed to go home with her daughter.

On May 25, 2018 Hallmark vacated the order to pay $25,000.00. Hallmark also found Brun not guilty of contempt of court.

Brun does not believe the petitions she filed in October to have Munger removed as guardian will even be heard until July.

“I have been offering to pay Lourdes the money to let my mother go but Munger refuses to accept my working with the facility,” she said. “I promised Mom that her last chapter would be her best. But I think my mom will die before Munger ever lets her go.”

Strehle, who has been Brun’s attorney since October, 2017, told me that he felt the entire case against Brun was “bizarre.”

“The transcript of June 29, 2016 does not comply with the statute or the court rules,” he said. “There’s not a single bit of evidence to support even the creation of a guardianship; not one iota of evidence.”

He added that for a nursing home to present a petition for guardianship based on a past-due bill is something “I’ve never seen in all my years of doing probate. Ever.”

In the [June 29, 2016] transcript, the guardian ad litem [Brown] is the one that’s asking the questions,” he added. “Not Munger. Not an attorney for Lourdes. That’s even more bizarre. Usually, the person asking the questions is the petitioner not the guardian at litem. The court grated it because of an overdue bill. That’s not a basis for getting even a limited guardianship.”

Strehle also addressed the March 1, 2017 subsequent bench warrant and injunction issued against Brun.

“In my view, the bench warrant against Mimi was entered improperly because of the $25,000 provision which the court recently vacated,” he said in an interview with me. “In her petition Lyneis was seeking a restraining order against Mimi. A restraining order lapses on its own in 14 days. That’s not what she got. The court granted her a broad injunction. Lyneis had a huge burden of proof to get the restraining order. After that, she was supposed to notify us of a hearing within 14 days. She didn’t do that. It was based on no evidence whatsoever.”

“After all this time, I still have not seen any evidence to support [Munger’s] guardianship,” he concluded. “I have emails from Lourdes saying ‘we don’t want [Wahab] here.’”

“Twice on the record now in open court Ehrlich has said he wants to get the house to pay fees,” [referring to both his and Munger’s legal fees]. “I don’t see how that’s a basis for keeping this poor woman in this location, isolated, with no visitation. I’ve never seen it before in 31 years of doing this.”

I reached out to both Lourdes CEO Sr. Maureen Comer and Lyneis. In a series of email responses, Lyneis requested my “credentials” in the form of a “CV”. When I refused to provide her with a resume, Lyneis declined to confirm or deny any of the emails or statements on court transcripts made by her or Lourdes staff members. She also refused to answer a long list of questions pertaining to everything from Wahab’s initial medical diagnosis to why a petition for guardianship was filed over a past-due bill.

I also reached out to Hallmark via email and telephone and was told by a staff member in her office that, since she had not responded to my email, it was an indication that she had no comment.

An Oakland County Probate Court Administrator later replied, “In the interest of fairness to those involved, it is this court’s policy not to comment on pending litigation.”

Wahab’s first GAL, Brown, however, did respond. “As I stated in my report, Ms. Wahab consented to the guardianship,” he wrote. “I also felt, after interviewing Ms. Wahab, that she needed a guardian to be appointed. The information regarding the medicals was given to me by the nursing home regarding Ms. Wahab’s medical condition and are consistent with my report and testimony.”

This is not a story drawn from a dystopian fantasy. It is happening today all over America, where Probate Courts employ an exponentially growing network of professional, for-profit guardians.

I talked at length to six other families—in Michigan, Arizona, New York and Illinois respectively about their experiences with predatory guardians; some are court appointed professionals, others are family members granted leave by Probate Courts to cut their siblings out of a ward’s life.

The tapestry of each story was as complicated as it was heartbreaking. Each narrator pulled on the memory of each thread of that tapestry and found tears, despair, rage and frustration behind it.

In October, 2017 WXYZ television in Lansing, Michigan launched an investigation into the Oakland County Probate Court and its court appointed guardians Barbara Andruccioli and Thomas Brennan Frasier whom a family member accused of neglecting and financially exploiting her parents Lorrie and Sandy Kapp.

Andruccioli and Brennan have yet to respond to these allegations.

The Oakland County Probate Court judge in the case, Daniel A. O’Brien, issued an ex parte order denying WXYZ the ability to show the Kapp’s faces.

Andruccioli was subsequently fired as a public administrator and has become part of a still ongoing criminal investigation by both the Oakland County Prosecutor’s Office and the Sherriff’s office yet she still remains conservator and guardian for cases at the Oakland County Probate Court.

According to court documents from the Michigan Court of Appeals, in 2011, Hallmark appointed Munger as guardian to Angela M. Robinson who had been declared legally incapacitated. In 2012, her parents Remo and Marie Marzella petitioned Hallmark to remove Munger as guardian and transfer her to their care. They claimed Munger “had not investigated Angela’s best interests or made proper decisions regarding her future care.”

Following an evidentiary hearing, Hallmark denied the petition.

“I am not going to remove Mr. Munger at this point,” she said. “I don’t find that Mr. Munger did anything wrong.”

In a subsequent 2014 lawsuit, the Marzellas accused Munger of committing legal malpractice. Among the complaint’s allegations, Munger “failed to investigate and ascertain Angela’s best interests with respect to her living arrangements, advocated for Angela to live in an institution instead of with her family” and “failed to foster Angela’s family relationships and family involvement in her care and life.”

“Angela and her special needs trust were subsequently shorted and she and her family suffered economic and non-economic damages,” the complaint added.

Munger claimed that, because Hallmark had already ruled he “did nothing wrong” during the petition for his removal, the Marzellas were barred by “collateral estoppel” (preventing an issue from being relitigated.)

In 2016, the Michigan Court of Appeals found that “no discovery was even conducted before [the evidentiary] hearing. Simply stated, the probate court’s decision not to remove Munger as Angela’s guardian was not tantamount to a finding that Munger did not commit legal malpractice or breach fiduciary duties owed to Angela.”

It concluded that the Marzellas “never had a full and fair opportunity to litigate the issues underlying their claims.”

The same court dealt with the 2007 case of Brenda Cupp—who suffered head injuries after a car accident. According to court documents, her sister Dana Browning had been appointed as guardian. After Cupp’s attorney contested the case, Munger was appointed co-guardian and co-conservator of Cupp’s special needs trust.

Five weeks later, Munger petitioned the probate court for Browning’s removal as co-conservator “on the basis that she acted erratically during Cupp’s independent medical examination [IME] and Munger heard second-hand that Browning intended that the money in Cupp’s estate would not be used to pay legal fees.”

The petition was granted.

In 2010, the Michigan Court of Appeals ruled “the IME incident was not sufficient good cause to remove Browning from her co-conservatorship position a mere five weeks after her appointment” and that “the probate court abused its discretion in finding that good cause existed to remove Browning as co-conservator.”

In 2002, Joseph Ehrlich, was sanctioned over $113,000 by a Michigan Court for “pursuing frivolous litigation” in a case disputing the estate of John J. Fannon, Jr.

Ehrlich appealed in 2005 and, in denying that appeal, the court stated that “The record reflects that, when they joined the case, Ehrlich and his firm continued to file pleadings and documents that lacked factual and legal support. The record clearly reflects that Ehrlich failed to make reasonable inquiry into the factual and legal merit of the claims he asserted on behalf of plaintiff when he knew or should have known that they lacked such support.”

On his website, Munger claims to be an Oakland County Public Administrator although an email from State Public Administrator Michael Moody reads “Mr. Munger’s appointment as an Oakland County Public Administrator was terminated on October 6, 2017.” Munger is also not among the Oakland County Probate Court’s list of Public Administrators.

Between June 29, 2016 and September 19, 2017 Munger’s statement of fees and services billed for his guardianship of Wahab totaled $12,282.

I reached out to Munger by email and telephone and was told by his office secretary that he had no comment.

I reached out to Ehrlich via email and telephone. His office secretary responded that Ehrlich had never received the email. When I asked to speak to him in person, she concluded the conversation.

There are also a number of cases involving Holocaust survivors.

Al Katz barely escaped numerous Nazi camps, including Dachau, only to become the ward of guardians in Florida at the age of 89, as court documents show.

“My father came to the United States in 1946,” his daughter, Dr. Beverly Newman, told me.

“His mommy, daddy, little brother, older sister, her husband and their one-month-old baby had all been murdered. He was a walking skeleton with no money, no job and didn’t know the English language. He felt very alone.”

Nevertheless, Newman remembered that her father never lost a wonderful sense of humor while he lived by the motto “Never forget, never forgive and never be bitter.”

It was at a Purim ball in Indianapolis that Katz met Sophia Passo.

“He was stricken with love,” Newman laughed. “He asked her over and over again to marry him. She just would not do it.”

Katz started to work in bakery and then a packing house where he was injured twice. It was when Sophia was visiting him in the hospital that she relented.

He and Sophia were married in 1947. Katz began a successful insurance career. The couple had two children, Newman and her younger brother, and were inseparable for over thirty years until Sophia passed away in 1977.

The devastation Katz felt remained with him the rest of his life.

After retirement, Newman said that her father became a snowbird, spending winters in Florida.

In 2009, concerned for his health, one of Katz’s doctors contacted a public guardian.

That individual was M. Ashley Butler who worked in the Office of Public Guardian for three Florida counties since 2006 together with a partner, Jo Eisch, under the business name Aging Safely, Inc.
Newman maintained that the first she heard about it was when she was told by Katz’s Indianapolis attorney that “there are people poking around about putting your father into guardianship. That was August of 2009.

Newman added that hospital records she obtained from the time include numerous orders made by the guardians not to inform her of any medical decisions or procedures.

“On Rosh Hashanah, September 18, [Butler and Eisch] filed papers to put my dad into Emergency Temporary Guardianship,” Newman said, adding that neither guardian had ever met her father. “They didn’t even know him. I have the transcripts of the hearing. The judge knew that I had not been contacted and went ahead and approved it anyway. Things then moved very quickly.”

A 2011 Florida Supreme Court complaint filed by Newman and her husband noted that Bradenton attorney Ernie Lisch was appointed by the court to act as Al’s counsel.

“Despite many irregularities at the hearing, Lisch took no steps to advocate for or protect the rights of his client,” the complaint reads. Lisch contested these allegations, and the Florida Appellate Court ruled in his favor.

Newman discovered that Katz had been placed in Casa Mora Nursing Home in Bradenton.

In 2015, the Bradenton Herald reported that the facility was one of three on a Florida watch list “due to prior problems or deficiencies.”

The Herald noted, among those deficiencies, “A 58-year-old Casa Mora resident and the resident’s representative had requested in a resuscitate order that the resident receive CPR if she was ever found unresponsive. This procedure was not followed when she fell unresponsive. She was pronounced deceased after not receiving CPR.”

According to the article, these deficiencies have since been corrected.

Casa Mora is no longer on the state’s watch list.

Newman and her husband Larry immediately drove from their home in Indianapolis down to Florida.

She asserted that, shortly before they arrived on September 20, Butler utilized the Florida Baker Act—which allows for involuntary commitment—in order to place Katz in Manatee Memorial Hospital.

“They said that he had taken his walker and bumped it into someone at the nursing home,” Newman said. “But my Dad was barely able to use a walker. He was in very poor physical condition and not a danger to anyone else. They never told him anything. Not what was going on, nothing. We arrived while daddy was in the Manatee Hospital emergency room. It was horrifying. My dad just wanted to go home. A psychiatrist chosen by Butler and Eisch made a No-Contact order. The hospital kept my daddy in an underground unit, like a dungeon. There were armed guards and these huge electronic doors. A nurse told us he was pacing the halls like a caged animal. It was traumatizing.”

She added that Katz was there for three weeks.

Newman remembered Katz calling Butler and Eisch “Nazis” to their faces.

Meanwhile, like the family members in Michigan, Newman launched a fight to have Butler’s guardianship removed and her father returned to her care, as court documents show.

Opposed by Lisch, the case was heard on October 26, 28, and 30, 2009 in Florida’s Twelfth Judicial Circuit Court.

“In the intervening three weeks, Katz was repeatedly hospitalized and near death,” the 2011 complaint noted.

“Guardianship in Florida is a very lucrative industry,” Newman said. “People who go into guardianship lose every cent they ever had. Their families are wrecked.”

She stated that the guardians even took control over her father’s Holocaust Survivor Compensation checks as part of their oversight of her father’s assets.

I attempted to track down Butler. The telephone numbers for Aging Safely have been disconnected. Email addresses for Butler have been shut down. The last I-990 tax return filed by the organization in 2014 listed bet assets of $1,767.00.

As of publication, Eisch had not returned phone calls or email requests for comment.

In Newman’s case, Florida Circuit Court Judge Paul E. Logan (now retired) restricted visits to her father to only three hours-per-day. “He said I could never tell my daddy that I was fighting in court to get him home or that he was under guardianship,” Newman asserted. “If I did, I would lose visitation completely. Daddy was crying and saying, ‘Take me home!’ ‘Why do you have to leave me?’ ‘Why can’t I go home with you?’ and I was prohibited by court order from telling him the truth.”

On November 23, 2009 Newman won her petition for guardianship of her father but not his property.
“I didn’t care,” she said. “I just wanted to get daddy out of the nursing home and hospitals and give him a real life. It was such a relief that I couldn’t stop crying.”

However, by then, Katz was extremely ill and in the hospital.

“I spent Thanksgiving that year with my daddy and in the hospital,” Newman said. “In some ways, that as the best and worst Thanksgiving of my life. At least I could shower him with love and attention.”

By the time Newman and her husband got Katz home, it was Hannukah.

“He was finally smiling,” she said. “By New Year’s Eve, he was able to eat and talk. We took him to a restaurant that he liked. We got him all dressed up. He wanted us to take pictures of us celebrating New Year’s Eve. It was a happy time.”

Their time was all too short. Katz passed away on July 11, 2010.

“He had no catheters or feeding tubes in him,” Newman said. “He was just as normal as you could be at 90-years-old.”

In January that same year, Lisch filed a petition for $24,354.15 in attorney’s fees and expenses.
“For doing essentially nothing,” Newman asserted.

She opposed it and took the case all the way to Florida’s and then the United States Supreme Court, the latter of which declined to hear the case. Ultimately, Lisch prevailed in his original petition.

Even nine-years after her father’s death, Newman said she is still subjected to verbal abuse and numerous accusations from those with a vested interest in a system against which she has actively taken a stand. Meanwhile, she continues to fight in Indianapolis to settle her father’s estate and to remove liens on Katz’s properties.

In 2006, in the case of Marshall v. Marshall, the USSC determined that issues dealing with Probate Courts are “reserved to state probate courts” and “also precludes federal courts from disposing of property that is in the custody of a state probate court.”

In memory of her father, the Newmans founded the Al Katz Center for Holocaust Survivors and Jewish Learning in Bradenton.

“We serve many hundreds of persons every year through advocacy and programming open to the entire community,” the Center’s website reads, “and we are life-sustaining and life-saving to elders in peril and trauma.”

On the opposite side of the country, the probate and guardianship system created another activist and family advocate out of an individual who found herself opposing those who have successfully exploited it.

The Bradenton police department wouldn’t help Newman. Brun said that the police in her case were similarly unable to act, unless it was to prevent her from entering Lourdes to see her mother.

[T}here is an organization that advocates for those working in the profession.

The National Guardianship Association (NGA) was formed during a national conference in Chicago in 1988—one year after the AP’s article was released.

In the 30 years that followed, the NGA’s membership increased to over 1,000.

Sally Hurme is an attorney and member of the NGAs Board of Directors. She said that, while she is not and has never been a guardian, she has been involved in developing guardianship policy for decades.

“NGA does not have any mechanism by which to do anything other than to keep developing standards of practice and educating individuals who want to provide excellence in guardianship,” she said.

According to the NGA’s website, those standards of practice have increased from the original seven to their present number of 25. In 1997, the NGA voted to create an entirely separate entity,  the Center for Guardianship Certification (CGC) on whose board Hurme has also served.
It states its vision as one in which “every professional guardian will obtain and maintain CGC certification.”

“The CGC is the only national certifying body for guardians,” Hurme said. “Any guardian; professional, family, public or volunteer is welcome and encouraged to become certified.”

Among the five pillars Hurme listed as necessary to obtain certification is an examination.

To become a Nationally Certified Guardian (NCG), the $375 exam is scored on core competencies including professional practices, knowledge of person under guardianship, application of surrogate decision making, medical decision making and personal and financial management.

The competencies listed in the $525 examination to be certified as a National Master Guardian (NMG) are basically the same with the addition of “professional practices of a master guardian” and knowledge of the guardianship planning process.

Hurme stated that, at present, there are approximately 1,500 certified guardians.

“There is an agreement to a disciplinary process which receives grievances, determines whether there is probable cause to go forward with a professional review board,” she stated.

Ironically, according to Hurme, the professional review board is one in which “due process” is afforded to a certified guardian while a determination is made as to whether or not they have violated standards of practice.

“The professional review board has a range of sanctions from a letter of concern, to suspension, dismissal to decertification,” Hurme said. “The one problem with the CGC process is that we can only hear grievances if the individual is certified. If we receive a complaint about a guardian that is not certified, our hands are tied. There’s nothing the CHC can do.”

The CGC’s list of disciplined guardians posted on its website numbers 12 and includes April Parks alongside guardians from Oregon, Texas, Utah, Nevada, New Hampshire, New Mexico, Ohio, Oregon and Michigan.

The CGC lists 12 States that ask for mandatory CGC certification for its guardians or have their own State-specific licensing requirements. In the case of California, it’s a combination of the two. Michigan is not among them. Since 2016, Florida has employed The Office of Public and Professional Guardians (OPPG) to regulate “more than 550 professional guardians statewide, which includes investigating and, if deemed appropriate, the discipline of guardians in violation of the law.
“NGA and many of the other organizations such as those that are members of the National Guardianship Network are continually striving to make guardianship work better for those individuals who will need it,” Hurme said.

As an example of those efforts, Hurme noted the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA). The over 150-page document was drafted, over the course of two years, by a committee consisting of multiple stakeholders including representatives from the American Bar Association (ABA) and was approved and recommended for enactment in all US States at a July, 2017 meeting of the National Conference of Commissioners of Uniform State Laws.

Hurme stated that members of the NGA, herself included acted as technical advisors to the commission “in making sure that the new model; law addresses many of the issues that are floating around in guardianship; perhaps that there are too many guardianships and that there needs to be more emphasis in limiting the authority of the guardian, better recognition of the due process rights of the individual and a more person-centered focus of the individual in the hearing process that limits the authority of the guardian.”

American Association of Retired Persons (AARP) Senior Legislative Representative Diana Noel was part of the drafting committee.

“I felt as if it was a very thorough process that was very public,” she said. “There were a lot of people in the room. One of the things that is very important; that the drafting committee really wanted to come across, which is why the name is so long, is to recognize that guardianship was a system that was really not including the individual that it was about. One of the things the act did was to update terminology. Instead of using the term ‘ward’, it’s ‘individual’ so that the focus is on the individual and so that they have a say in their care.”

A Uniform Law Commission document encouraging States to adopt the UGCPOAA, declares that, under the act, “Each guardianship and conservatorship will have an individualized plan that considers the person’s preferences and values. Courts will monitor guardians and conservators to ensure compliance and approve updates to the plan in response to changing circumstances.”

It adds that “Without a court order, a guardian under UGCOPAA may not restrict a person under guardianship from receiving visits or communications from family and friends for more than seven days, or from anyone for more than sixty day” and that the act “prohibits courts from issuing guardianship or conservatorship orders when a less-restrictive alternative is available.”

These provisions and others in the UGCOPAA could have protected Brun and her mother had the act been adopted in Michigan.

It hasn’t.

As of the time of publication only Maine has adopted it. The New Mexico State Legislature introduced it this year and opened it up for public comment.

Hurme pledged that the NGA would direct its advocacy efforts to assisting States in understanding the importance of what she called “a forward-thinking law.”

“This isn’t a partisan issue,” [Noel] asserted. “This isn’t a caregiving and an aging issue. I don’t want you to think that, because States haven’t adopted it, that means that they are not looking at it. They may be looking at it. These things take time. They look at their current laws, they see what’s working and what’s not working and how things like the Uniform Act could help fix what’s not working or enhance what is.”

“As long as I’ve been here, I’ve been working on this issue,” she said. “States have been working on and updating their statutes because they are pretty outdated. They’ve been around for a very long time. It’s a very complicated system. What we’re doing and what states are doing is making sure that policy and practice meet and complement each other.”

The Elder Abuse and Prevention Act passed by the senate and signed into law by President Trump in 2017, charged the Department of Justice with establishing “best practices for data collection on elder abuse” and “in coordination with the Elder Justice Coordinating Council, [to] provide information, training, and technical assistance to help states and local governments investigate, prosecute, prevent, and mitigate the impact of elder abuse, exploitation, and neglect.”

“We have a real long history in combatting abuse and exploitation and ensuring that State laws address and prevent abuse by a guardian or a neighbor or whoever,” Noel said. “We’ve really been engaged in working not just with State legislators but State courts.”

Wondering about the laws in a State like Michigan and how far they extended in the protection of wards and their families from predatory guardians and the probate courts which employ them, I reached out to probate attorneys across the State.

Nathan R. Piwowarski is a highly respected lawyer and share-holder at the firm of McCurdy Wotila & Porteous, PC in Cadillac. He has been practicing trust, estate and elder law for ten years.

Ronald Dixon has practiced law since 1975 and served as a hearing panelist for Michigan’s Attorney Discipline Committee for approximately 25 years.

Neither Dixon nor Piwowarski were asked to comment on or given the details about any case pending or decided in Michigan Probate Courts.

“The problem is that when a person needs a guardian or conservator, frequently the family members are not worked with by the court or by the guardian appointed,” Dixon said. “The families are concerned, always, about the living conditions for the ward.”

He added that a conflict between a conservator and the family can be easily avoided with a durable power of attorney that specifically names a family member and an alternative as guardian and conservator “and none other.”

However, if judges arbitrarily strike down a durable power of attorney in favor of a court-appointed guardian, Dixon noted that “they should not do that. They should follow the family wishes. If that happens, it should be immediately appealed.”

He added that a judge needs to demonstrate sufficient grounds as to why a power of attorney listing a family member can be discarded.

“The record should be complete,” he said. “Showing the reasons why this person is not qualified or cannot maintain their position.”

Piwowarski noted that the issue “can get a little bit complicated” depending on whether the power of attorney is generic and related to financial transactions or whether it concerns healthcare and placement issues (a patient advocate designation.)

“In the case of the latter, unless the court specifically invalidates that document and removes the patient advocate, it remains in place,” he said. “The law presumes that the patient advocate would continue serving. That document should stay around unless there was some problem with it like there were not an adequate number of witnesses when it was signed. There are also situations where there is a valid document, but the patient advocate is not doing their job or honoring the person’s preferences.”

In terms of the Constitutional rights a participant in Michigan’s Probate Courts can expect, Piwowarski cited Michigan Compiled Law (MCL) 700.5304 (4) through (6) which addresses the rights of the individual who is allegedly incapacitated.

“They include the right to a jury trial [or] a closed hearing, if they request it, the right to be present at a hearing, the right to obtain an independent medical examination,” Piwowarski said. “There are other procedural rights and protections that are supposed to be afforded the individual who is the subject of a guardianship petition. For example, they’re entitled to personal notice in advance of the hearing. The minimum personal notice requirement is seven days. They are supposed to be given a visit by the Guardian ad Litem who is then supposed to report back to the court, in a timely manner, about whether that individual desires to contest any aspect of the petition or exercise any procedural rights such as the right to request something less intrusive than a full guardianship.”

According to Piwowarski, different rights are afforded to those who have an interest in the subject’s welfare.

“There are certain rights that they just don’t have,” he said. “They can’t demand a jury trial. But if there is a durable power of attorney, all of those individuals are entitled to notice and entitled to participate in the proceeding.”

“In terms of who should be serving as a guardian, the nominated patient advocate is right near the top of the list,” he added. “So, the court should be looking to the patient advocate before almost anyone else. The way the statute should work and the way that it’s written is that the court can only intervene in a person’s affairs if that person is legally incapacitated and if there’s an actual need for the court to intervene. The court should evaluate, on the record, why a patient advocate is inadequate. There are express provisions in the Estates and Protected Individuals Code that tell the petitioner and the judge that they have to identify why the court has to actually intervene alternatives short of guardianship can’t be used.”

The question of how much power a professional guardian in Michigan has Piwowarski noted both a statutory and political dynamic.

“In terms of the statue, a guardian has the right to set appropriate access and limit access for a protected individual,” he acknowledged. “That said, the guardian is specifically required by statute to do everything they can to have as full of a life and as high of a level of function as possible. In terms of financial transactions, the court can issue protective orders to remediate situations where a vulnerable person made a property transfer when they didn’t understand it or were under inappropriate influence. A conservator is not able to do something like that without a court order and there should be pretty significant showing before a court would reverse a transaction like that.”

“In my experience the court is typically appreciative of the willingness of a public fiduciary [guardian] to serve,” Piwowarski added. “There is such a need right now for a variety of reasons; families are smaller and more spread out. The public fiduciaries typically are overworked so I can certainly see a situation where a court adopts an overly deferential attitude because of the role that they serve in keeping the local legal system functioning.”

“Oakland County is the wealthiest county in Michigan bar none,” Dixon said. “Frequently estates are incredibly large. Public administrators can err on the side of greediness for him or herself. Frequently, because the judge trusts them to carry out their tasks properly and in good order and rely on them for accurate information.”

On a national level, the sheer power that has been extended by Probate Courts over wards and family members raises the question as to what the point is of making any kind of will when it can be rendered meaningless.

Full Article & Source:
Guardians from Hell

West Virginia Supreme Court Justice Indicted in Investigation He Initiated

A federal investigation initiated when West Virginia Supreme Court Justice Allen Loughry brought his concerns about Supreme Court spending to federal investigators has culminated with Loughry himself being indicted on 22 federal charges alleging fraud, witness tampering and lying to investigators.

A federal grand jury handed up the indictment against Loughry late Tuesday charging him with 16 counts of fraud and swindles, three counts of making false statements, two counts of fraud by wire, radio or television and one count of witness tampering.

U.S. District Magistrate Judge Dwane Tinsley released Loughry on a $10,000 personal recognizance bond following his initial appearance Wednesday morning at the Robert C. Byrd U.S. Courthouse.

He is subject to the standard terms and conditions of bail for defendants in federal criminal cases, including surrendering his passport and firearms and remaining within the geographic boundaries of the Southern District of West Virginia for the duration of proceedings in his case.

Loughry, 47, left the courthouse with his attorney, John Carr, just before noon. Loughry is scheduled to be arraigned and answer the charges against him Friday afternoon.

Carr would not comment on the case.

If Loughry is convicted of all of the charges against him, he faces a maximum sentence of 395 years in prison and up to $5.5 million in fines.

Loughry is accused of improperly using state vehicles and purchasing gas with a state credit card to travel for personal trips, including visits to his native Tucker County and signing events for his book, ironically about political corruption, at The Greenbrier resort.

He also is accused of having state-owned property at his home and lying to federal investigators about his knowledge of the property and about his involvement in high-cost renovations at the Supreme Court.

U.S. Attorney Mike Stuart held a news conference after the indictment was unsealed Wednesday morning.

"These are supposed to be the wisest and the most unbiased, the fairest, the most impartial in the land," Stuart said. "Our citizens deserve that here in West Virginia, and I think, on West Virginia Day, we deserve a Supreme Court, for goodness sake, that we can look at and know that it is untarnished by any blemish."

The federal criminal charges are separate from a 32-count statement of charges against Loughry from the West Virginia Judicial Investigation Commission issued on June 6. Those charges allege that Loughry violated the West Virginia Judicial Code of Conduct.

Teresa Tarr, general counsel for the commission, said Loughry abused the prestige of his office and lied to the news media, state lawmakers and the public in general about his personal use of state resources, including furniture, computers and cars, all in violation of the Judicial Code of Conduct.

A Supreme Court consisting entirely of specially appointed members on June 8 suspended Loughry from the bench without pay while the commission's case is pending. The court did not rule on whether Loughry's law license would be suspended.

It is standard practice for the commission to halt its proceedings if a judge is facing criminal charges, but commission officials weren't available for comment Wednesday, which was a state holiday.

The commission's statement of charges and the federal indictment deal with a lot of the same allegations, but the focus on the events differ in regard to what laws or codes Loughry is accused of violating.

Rumors have swirled throughout Charleston for weeks about possible criminal charges against current or former Supreme Court justices, but Loughry is the only person to face charges so far.

Stuart said public officials throughout the state had heaped their condemnation on Loughry after the commission released its statement of charges, and he suggested that public confidence in the court might not be best served by focusing on Loughry alone.

He declined to comment on whether any other justices or Supreme Court employees are under investigation.

Stuart said investigators' work "continues on many fronts, including additional areas of corruption."

"I'm sure there are a whole lot of people that would like Justice Loughry to be indicted and go down in a great ball of flames and, somehow, the rest of the court escapes uncharged," Stuart said. "I don't know whether there will be charges in the future, but I can tell you that we're interested in public corruption. ... We'll let the facts lead us to where the facts lead us."

Assistant U.S. Prosecutor Phillip Wright prepared the indictment, which doesn't indicate exactly how much money Loughry is accused of costing taxpayers by using the state vehicles, purchase cards and E-ZPass transponders and other state resources for personal use.

Stuart said there's no indication that Loughry misused federal dollars.

Loughry is accused of using state vehicles to take personal trips, at no personal cost, mostly between July 2013 and August 2016.

On at least two occasions, he is accused of using the state vehicles for personal trips, but he also was reimbursed by institutions to which he traveled for mileage and other expenses, according to the indictment.

Loughry is accused of defrauding American University, in Washington, D.C., one of his alma maters, and the Pound Civil Justice Institute, in Baltimore, by accepting reimbursement for his personal travel to those institutions even though he traveled to those places using state vehicles at no personal cost.

Loughry's book on political corruption in West Virginia, "Don't Buy Another Vote, I Won't Pay for a Landslide," and his promotion of that book reportedly are what led to a part of his alleged scheme.

He attended at least three book-signing events at The Greenbrier resort using state resources, according to the indictment.

By August 2016, Wright said, Loughry began taking steps to cover up his fraudulent conduct, an effort Wright said lasted at least through March 2 of this year.

Wright said Loughry's "pattern of concealment, misdirection, and deception" began in late August 2016 in a dispute with another Supreme Court justice about vehicle usage.

On Aug. 25, 2016, the justice, who isn't named in the indictment, sent a memo to the administrative director of the Supreme Court asking very specific questions about instances when Loughry reserved state vehicles between 2013 and 2016. All of the justices, Loughry included, received copies of the memo, Wright said in the indictment.

The next day, Loughry responded to the memo with his own memo, in which he questioned the vehicle usage by the other justices.

"I unhesitatingly assure each of you that on the dates mentioned in [the other justice's] various memoranda to [the administrative director], I was acting in my capacity as a Justice of this Court in utilizing a Court vehicle," Loughry wrote in his response memo, according to the indictment.

The indictment, however, alleges that the statement Loughry made to his peers was not true.

After the exchange of memos, the justices met in September 2016 to establish a formal written policy for using state vehicles, and Loughry stopped using the Supreme Court's vehicle reservation system even though he continued to use state vehicles, Wright said in the indictment.

When news reports came out in fall 2017 regarding excessive spending on renovation in the Supreme Court offices, Loughry "continued the pattern of deceit and misdirection by misrepresenting to members of the media his role" in the renovation, Wright said.

He said that's when Loughry attempted to influence a Supreme Court employee's potential testimony in a federal grand jury investigation about the extraordinary spending by the Supreme Court, according to the indictment, which doesn't indicate how Loughry tried to influence the person or reveal the identity of the witness.

In its separate investigation, the state Judicial Investigation Commission found that Loughry lied to reporters and West Virginia lawmakers who questioned him about the $3.2 million in renovations to the court's offices, which included a customized West Virginia county map embedded in the floor of Loughry's office, as well as a $32,000 couch for his office.

None of the charges in the federal indictment relate directly to the renovations, but the renovations are a catalyst for Loughry's alleged scheme to lie to investigators.

In November 2017, Loughry returned the keys for both state-owned vehicles he had used to the Supreme Court's director of security, according to the indictment.

The indictment also includes allegations that Loughry's use of state-owned furniture was another catalyst for him to lie to federal investigators.

Stuart noted that the announcement of the indictment against Loughry came the day before the 5-year anniversary of when Loughry was alleged to have moved what's called a "Cass Gilbert desk" from the Capitol to his house in Charleston.

The Cass Gilbert desks are a set of five desks that were original to the Supreme Court offices when they were dedicated in 1932.

In the indictment, Wright said Loughry arranged for a state-contracted moving company to move the Cass Gilbert desk and a leather couch to his home on West Virginia Day 2013, costing the state $836. The indictment states that Loughry acted under the false pretense that the had the authority to order such a move.

"[Loughry] did not inform the other Justices or any Supreme Court employee that he planned to take the Cass Gilbert desk. Nor did he tell them that he had in fact taken a Cass Gilbert desk to his home," Wright said in the indictment.

On Nov. 27, 2017, Loughry arranged for Supreme Court employees to remove a leather couch from his home and take it to a state warehouse after a Gazette-Mail column questioned the location of the couch and a Cass Gilbert desk.

Three days later, Wright said, Loughry arranged to have the Cass Gilbert desk removed from his home, where it had been for about four years.

Loughry told Supreme Court employees he was permitted to have the furniture, as well as computers to furnish his home office, as part of a court policy, according to the indictment.

However, Wright said no such policy, written or oral, exists to allow justices to have such furnishings in their homes.

Loughry's state furniture moving days took place roughly one week after he met with an FBI agent and a representative from the U.S. Attorney's Office for the Southern District of West Virginia "to report his own concerns about spending by other Justices of the Supreme Court and the former Administrative Director that he believed was unauthorized or otherwise inappropriate," the indictment says.

That meeting led to the opening of a federal investigation into the "possible misuse of state funds by members of the Supreme Court to determine if any federal crimes had been committed" and who committed them.

Part of the investigation used the grand jury process to obtain records and information, Wright said.

On March 2 of this year, Loughry, with his attorney present, spoke with a FBI special agent and other investigators.

During the interview, the indictment alleges, Loughry lied about his use of state vehicles, when the Cass Gilbert desk was moved into his home and his understanding of the significance of the desk, telling investigators he didn't know it was a Cass Gilbert desk.

"The statement was false, and defendant Loughry knew it was false at the time he made it," Wright said in the indictment.

Loughry was elected to a 12-year term on the Supreme Court in 2012. In 2017, he was named chief justice for a term of four years. Previously, justices served in the role for one year. He stepped down from chief justice as public scrutiny began to increase.

During the 2018 legislative session, Democratic lawmakers called for impeachment proceedings against Loughry, which some renewed Wednesday.

Multiple political leaders in both parties called for Loughry to resign after the Judicial Investigative Commission's report came out. Gov. Jim Justice said at the time that Loughry should resign if the allegations against him are true.

Full Article & Source:
West Virginia Supreme Court Justice Indicted in Investigation He Initiated

Thursday, June 21, 2018

Guardianship system reforms ‘a foot in the door’

Patricia Smith, second from left, waits to testify before the guardianship commission last year. The state Supreme Court appointed the commission. (Colleen Heild/Albuquerque Journal)
Patricia Smith’s father was dying of Alzheimer’s in 2007 when dementia took hold of her 87-year-old mother.

The older woman began driving on the wrong side of the road and was so paranoid she believed her daughter Patricia was exploiting her. And, an ex-convict on parole had ingratiated himself into her mother’s life.

Smith needed help, she said last year. “I realized I could not protect my mother. She wouldn’t let me.”

Like others who have aired their personal stories about the dysfunction of New Mexico’s guardianship system, Smith recounted for a Supreme Court commission in April 2017 how she finally went to court to obtain a professional legal guardian/conservator for her mother, only to discover the firm treated her mother as a “cash cow.”

“It behooved the whole interest of that company for the guardians to amp up their care to burn off my dad’s estate as fast as possible.”

They started charging $19,000 a month, Smith told the commission looking into guardianship reform, but wouldn’t pay for her mother to get a replacement for her inch-thin coat. It took eight months and $20,000 in legal fees before Smith and her sister could “disengage” her mother from the corporate guardian firm and recruit a separate guardian and conservator, with whom they had no complaints.

Heeding calls from family members like Smith, district courts in New Mexico come July 1 will operate under a new openness and greater accountability mandated by a new guardianship/conservatorship law approved by the Legislature earlier this year.

The state Supreme Court took the reforms a step further last week by requiring enhanced financial and background information from those who are legally appointed by judges to manage the affairs of the incapacitated.

For the first time, under the new Supreme Court rules and reporting forms, court-appointed guardians and conservators will have to regularly report the fees they charge the incapacitated person’s estate and, in the case of conservators, how the fees were calculated.

They must also provide specific bank account information about the incapacitated person, including bank account balances, in a format that will permit an auditor to detect misappropriation or mismanagement of funds. To that end, a pilot project involving the State Auditor’s Office is in the works, said state District Judge Shannon Bacon of Albuquerque, who has spearheaded the reform effort for the judiciary.

In another new disclosure, guardians and conservators must annually advise the court on their own status – if they had declared bankruptcy, been arrested or investigated by state Adult Protective Services, for instance. None of the annual reports filed with the court will be available to the public.

New law

Whether the new measures will fix New Mexico’s troubled guardianship system is unclear, Smith told the Journal last week. “But it’s a foot in the door,” said Smith, who has spent the last year contacting public officials, including Gov. Susana Martinez, to press for change.

In testifying before the now-disbanded commission last year, Smith cited the inadequate reporting forms required of guardians and conservators. Smith, a retired respiratory therapist, also advocated more openness in the system.

“We could really get more accountability and sunlight into the system so it wouldn’t be such a setup for abuse and exploitation of our elders,” she told the commission appointed by the Supreme Court.

In fact, the new law passed unanimously by the Legislature this year will require that hearings in such cases be open to the public, although filings will remain confidential unless a judge authorizes disclosure.

Two other changes give family members greater visitation rights and expand notification to relatives of court proceedings for an incapacitated loved one.

Not all critics are satisfied. Lorraine Mendiola, whose adult son has a professional guardian, told the Journal last week, “There’s no state agency for family members to voice their concerns if a corporate guardian is negligent or committing criminal actions.”

She said she has had no luck approaching the judge on her son’s case with her grievances.

As for the enhanced reporting, Mendiola said, “Who is going to provide accountability to make sure that the correct information (on the new forms) is reported?”

The new law requires professional conservators to post bonds upon appointment, but Mendiola questioned why the cost will be borne by the incapacitated person instead of the conservator.

Gaelle McConnell, an Albuquerque attorney who headed the Supreme Court committee that proposed the eight new forms and five new guardianship/conservatorship rules, told the Journal the bond “protects the (incapacitated) person” so it makes sense to deduct the surety fee from the assets, rather than charge the conservator. She noted that a judge can make an alternative asset protection arrangement under the new law or decide a bond isn’t necessary.

New forms

The new reporting forms are 12 pages long for guardians, and 15 pages for conservators – compared to the current forms that ask 17 questions of guardians and a mere 10 questions of conservators every year.

Bacon told the Journal the changes “will make it easier for judges to get a handle on the details (of a continuing guardianship or conservatorship).” In her Albuquerque court, she schedules a hearing if she has questions or sees discrepancies in reports filed by a guardians or conservator.

“Not all judges ask those questions,” Bacon conceded. “This (new reporting mandate) forces the information to be put in front of them.”

She said the state Auditor’s Office helped design the questions asked of conservators “to make sure we have a picture of assets and liabilities and to inform the judge and to be useful to an auditor. We wanted to be very careful that it (the disclosure) works if somebody audits the case.”

Meanwhile, district judges around the state have undergone training about the new law and rules.

McConnell also served on last year’s Supreme Court commission that spent nine months studying the issue before issuing its own recommendations.

“Frankly, from hearing the public testimony, it was clear to me that something had to happen,” McConnell said.

The Supreme Court rules committee, appointed earlier this year, isn’t finished with its work, McConnell said. Her group will explore issues the guardianship commission last year recommended for further study – such as certification of guardians, and improving the court appointment process for guardians ad litem and court visitors. By law, those two professionals advise the judge on whether a guardianship is needed and whether the guardian proposed is appropriate.

But the process has been criticized as lacking objectivity, because judges typically appoint whomever is nominated by the attorney seeking the guardianship or conservatorship.

Smith, whose mother died in 2012, said dealing with an incapacitated loved one is “always inherently painful but it’s necessary and it’s going to become more necessary as baby boomers come down the pike.”

“More of us are going to be facing it – either for ourselves or our loved ones.”

 More information
The new forms and information about guardianship system changes are available on the Judiciary’s website at:

Full Article & Source:
Guardianship system reforms ‘a foot in the door’

W.Va. Supreme Court Justice Allen Loughry Is Charged With 22 Counts, Including Fraud

Allen Loughry
A federal grand jury has indicted West Virginia Supreme Court Justice Allen Loughry on a number of serious charges, from fraud to making false statements and witness tampering.

The indictment says the FBI investigated Loughry under suspicion that for years, he had engaged in a scheme to defraud the government of West Virginia — and that he lied to FBI agents when he was questioned in March.

Loughry, 47, has been suspended without pay, the state Supreme Court says.

West Virginia has five Supreme Court justices, who are elected to 12-year terms. Loughry took office in 2012 and became the court's chief justice – a rotating position — in January of 2017.

In addition to being a judge, Loughry wrote a book about political corruption in West Virginia; it was published in 2006.

Federal charges against the judge were unsealed on Wednesday, more than three months after that interview. The indictment says that Loughry:
  • Falsely claimed mileage for car trips in which he had actually used a Supreme Court vehicle "and used a government credit card for gasoline."
  • Used official vehicles and credit cards for personal use under false pretenses, and "lied to other Justices of the Supreme Court about his vehicle usage."
  • Illegally "converted to his own personal use, a valuable and historic desk that belonged to he Supreme Court," taking it home to his own office.
  • Lied about his actions to government investigators and tried to mislead them by "accusing others of malfeasance, and engaging in other fraudulent conduct."
In addition, the indictment says, Loughry tried to influence a Supreme Court employee's testimony, after questions arose last October about the costs of renovating and furnishing his office.

Full Article & Source:
W.Va. Supreme Court Justice Allen Loughry Is Charged With 22 Counts, Including Fraud