Probate Judge's Alleged Affair With Opposing Lawyer Exposes Estate Judgment to Challenge

The Texas Court of Appeals has ruled that the losing party in a multimillion-dollar estate dispute can challenge the final judgment in that case based on allegations that the Dallas probate judge who presided over it had an “undisclosed personal relationship” with an opposing lawyer during the litigation.

The case was handled by John Peyton Jr., a former Dallas associate probate judge who entered into a voluntary agreement resigning from office earlier this year in lieu of discipline from State Commission on Judicial Conduct. According to the February agreement, Peyton resigned after the publication of an article in the April 2017 edition of D Magazine called “Ardor in the Court,” which detailed Peyton’s alleged affair with Dallas probate attorney Mary Burdette.

Peyton in his resignation denied the allegations.

After a final judgment was signed in Thomas v. 462 Thomas Family Properties, lawyers for Robert Thomas filed a bill of review before the trial court alleging that Peyton had had a personal relationship with the opposing lawyer during the pendency of the trial, which he did not disclose, that “destroyed the integrity of the proceedings.”

The bill of review seeks to set aside Peyton’s rulings in the case and claims the judge’s alleged misconduct could not have been discovered before the case was resolved in his court. Following a hearing, another Dallas probate court judge dismissed Thomas’ bill of review with prejudice—a decision he appealed to Dallas’ Fifth Court of Appeals.

In its Aug. 2 decision, the Fifth Court ultimately concluded that the trial court erred by dismissing Thomas’ bill of review, noting he couldn’t have known about Peyton’s alleged misconduct conduct in time to file a pretrial motion to recuse the judge within statutory deadlines.

“Assuming appellant’s allegations, as well as reasonable inferences drawn from them, are true, appellant neither knew nor reasonably should have known that the grounds for recusal existed. Thus, a motion to recuse filed after the tenth day before trial would not have been untimely,” wrote Justice Craig Stoddart.

“Applying the notice pleading standard and liberally construing appellant’s petition according to his intent, we conclude the trial court erred by dismissing his petition for equitable bill of review as lacking any basis in law at this early stage,” Stoddart wrote, remanding the case back to the trial court for further rulings consistent with the opinion.

Rob Gilbreath, a partner in Dallas’ Hawkins Parnell Thackston & Young who represents Thomas on appeal, is pleased with the decision.

“We believe the allegations of a close personal relationship between the trial judge and opposing counsel during trial justifies a new trial,’’ Gilbreath said.

Robert Dubose and Doug Alexander, partners in Alexander DuBose Jefferson & Townsend who represent appellees 462 Thomas Family Properties, both did not return calls for comment.

Peyton, who now works as the director of probate operations for the Dallas County probate courts, did not return a call for comment.

According to his voluntary agreement to resign from office, Peyton denied the allegations against him in their entirety. The commission initiated an investigation into Peyton’s conduct in February 2017 after receiving a letter from his attorney, Randy Johnston, detailing a “series of events” that he believed would be made public in the D Magazine article.

Johnston did not return a call for comment.

Burdette, whom according to pleadings in the case has not appeared as counsel for the defendants in the bill of review proceedings, also did not return a call for comment.

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Probate Judge's Alleged Affair With Opposing Lawyer Exposes Estate Judgment to Challenge

Elder Rage: How to Survive Caring for Aging Parents

Elder rage can make caring for aging parents next to impossible. For eleven years I pleaded with my challenging elderly father to allow a caregiver to help him with my ailing mother, but he always insisted on taking care of her himself. Every caregiver I went ahead and hired soon sighed in exasperation, “Jacqueline, I just can’t work with your father. His temper is impossible to handle and he’s not going to accept help until he’s on his knees himself.”

When my father’s inability to continue to care for my mother nearly resulted in her death, I stepped in despite his very loud protests. It was so heart-wrenching to have my once-adoring father be so loving one minute and then some trivial little thing would set him off and he’d call me nasty names and throw me out of the house the next. I took him to several doctors and even a psychiatrist, only to be flabbergasted he could act so normal and charming when he needed to.

Finally, I stumbled upon a thorough neurologist, specializing in dementia, who put my parents through a battery of blood, neurological, memory tests and PET scans. After ruling out numerous reversible forms of dementia such as B-12 and thyroid deficiency and evaluating their many medications, he shocked me with a diagnosis of Alzheimer’s in both my parents – something all their other doctors missed entirely.

What I’d been coping with was the beginning of Alzheimer’s, which begins slowly and appears to come and go. I didn’t understand that my father was addicted and trapped in his own bad behavior of a lifetime of yelling to get his way, which was now coming out in over-the-top spurts of irrationality. I also didn’t understand that demented does not mean dumb (a concept not widely appreciated) and that he was still socially adjusted never to show his Mr. Hyde side to anyone outside the family. Conversely, my mother was as sweet and lovely as she’d always been.

Alzheimer’s makes up 60-80% of all dementias and there’s no stopping the progression nor is there yet a cure. However, if identified early there are a few FDA-approved medications (more in clinical trials) that in most patients can mask the symptoms and keep patients in the early independent stage longer.

Once my parents were treated for the Alzheimer’s, as well as the often-present depression in dementia patients, and then my father’s volatile aggression was treated without just making him sleep all day, I was finally able to optimize nutrition and fluids with much less resistance. I was also able to manage the rollercoaster of challenging behaviors. Instead of logic and reason, I used distraction and redirection. I capitalized on their long-term memories and instead of arguing the facts, lived in their realities of the moment. I finally learned to just go-with-the-flow and let hurtful comments roll off while distracting with a topic of interest from a prepared list.

And most importantly, I was finally able to get my father to accept two wonderful live-in caregivers and not drive them to quitting. Then with the tremendous benefit of Adult Day Health Care five days a week for my parents and a support group for me, everything finally started to fall into place.

Jacqueline Marcell

Alzheimer’s afflicts more than 5.7 million Americans, but millions go undiagnosed for many years because early warning signs are chalked up to stress and a “normal” part of aging. Since 1 in 6 women and 1 in 11 men are afflicted by age 65, and nearly half by age 85, healthcare professionals of every specialty should know the ten Warning Signs of Alzheimer’s and help educate their patients so everyone can save time, money, heartache… and a fortune in Kleenex!

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Elder Rage: How to Survive Caring for Aging Parents

Corsica Man Pleads Guilty to Financial Exploitation

PIERRE, S.D. (AP) — The South Dakota attorney general says a Corsica man is facing up to 10 years in prison for exploiting money from an elderly family member.

Attorney General Marty Jackley said Friday 48-year-old David Anthony Stetson has pleaded guilty to felony theft by exploitation. Authorities say Stetson must pay restitution of more than $27,000.

The felony is also punishable by a fine of up to $20,000.

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Corsica Man Pleads Guilty to Financial Exploitation

State senator proposes guardianship for adults with severe mental illness, addiction

A Washington state senator who says he’s heard from “literally hundreds of parents” of adult children who are struggling with mental illness or addiction wants to allow families to petition for temporary guardianship.

Republican Sen. Steve O’Ban unveiled his proposed guardianship program Tuesday outside a Pierce County crisis center. He was joined by two fellow Republicans who offered their own ideas to address the state’s mental health crisis.

“We need to empower parents and other loved ones to have the authority to rescue that adult child who needs that care and is not getting it,” said O’Ban, the ranking Republican on the Senate Human Services and Corrections Committee.

Guardianship is typically associated with older or disabled adults who can no longer make decisions for themselves and are found by the courts to be incapacitated. Under the law, it’s designed to be a last resort.

Jerri Clark, of the group Mothers of the Mentally Ill, said some sort of limited guardianship makes sense.

“But it needsto be responsive to the reality of mental illness which is not a static condition,” Clark said.

Under O’Ban’s proposed law, immediate family members could ask a court to give them guardianship of a “gravely disabled” loved one for up to one year. During that time, the family could make treatment decisions on behalf of the individual. Mental health professionals could also make a referral for guardianship.

O’Ban said his proposal was modeled off a mental health “conservatorship” program in Los Angeles County.

Asked whether guardianship might interfere with the civil rights of the individual, O’Ban said: “I don’t think that violates their civil liberties any more than helping your 85-year-old grandmother get the care that she needs but doesn’t understand she needs.”

Democratic state Rep. Laurie Jinkins, who chairs the House Judiciary Committee and works on mental health issues, said she was open to considering O’Ban’s proposal during the 2019 Legislative session, but wasn’t sure it would pass constitutional muster.

“I have a feeling that there’s going to be a lot of devil in the details,” Jinkins said.

Jinkins noted that Washington recently passed an “assisted outpatient treatment” law that allows courts to supervise the treatment of patients who are in the community, as opposed to in a state hospital.

Another mental health proposal from Senate Republicans, who are currently in the minority in the state legislature, is to provide at-risk students access to mental health appointments at school through telemedicine.

“We have to look at how we’re delivering care in the schools and re-think how it’s being done,” said Sen. Randi Becker (R-Eatonville), who plans to sponsor a telemedicine bill in 2019.

Sen. John Braun, the ranking Republican on the Senate Ways and Means Committee, also said he would urge the Legislature to send voters a $500 million bond measure to build more psychiatric beds in the community.

“We have a real problem here and it’s a problem that will take, frankly, years to fix,” Braun said, adding that an infusion of cash would speed the timeline for building more capacity in the community.

Jinkins called Braun's bond proposal “an interesting idea,” but said she’d like the Legislature to commit to mental health funding without going to voters.

“It would be best for us to be able to pay for these facilities within our current budget,” Jinkins said.

Lawmakers on both sides of the aisle have signaled that mental health will be a top issue during the 2019 Legislative session. Governor Jay Inslee and legislative Democrats are expected to unveil their own proposals to shore up the mental health system in the coming months.

In May, Inslee, a Democrat, and a bipartisan group of lawmakers called for a five-year plan to move civil, or non-criminal, patients out of the state hospitals and into new 16-bed community-based facilities that have yet to be built.

Bringing urgency to that plan is the fact Western State Hospital recently lost federal certification and with it approximately $53 million a year in funding. In recent weeks, there has been a series of high profile assaults of staff by patients at the 850-bed, century-old hospital.

“That’s another example of this crisis that impacts our state,” O’Ban said.

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State senator proposes guardianship for adults with severe mental illness, addiction

Elder abuse task force proposes legislation

MADISON — A Wisconsin Department of Justice task force on Wednesday released draft legislation designed to protect senior citizens and vulnerable adults from exploitation, including bills that would define new crimes, create penalty enhancers and speed up court proceedings for elderly victims and witnesses.

The National Association of Attorneys General last year called on members to focus on elder abuse. Wisconsin Attorney General Brad Schimel responded by forming a task force comprised of representatives from the state DOJ, the state Departments of Health Services and Financial Institutions and the Wisconsin Bankers Association, among other organizations. The group released its recommendations Wednesday, including draft proposals of four bills.

The legislation would make any act of sexual misconduct against a person age 60 or older a felony punishable by up to 60 years in prison. It also would create another new felony called physical abuse of an elder person that carries penalties ranging from three-and-a-half years to 40 years in prison, depending on the severity of the crime. Judges could add two, four or six years to sentences in crimes involving the elderly, depending on the offense’s maximum sentence.

Judges also would be required to expedite court hearings involving elderly victims and witnesses to minimize stress on them.

Securities professionals would be allowed to notify the DFI and protective service agencies of suspected financial exploitation of vulnerable and elderly adults and refuse or delay transactions when exploitation is suspected.

Schimel, a Republican, sent a letter to Gov. Scott Walker and legislative leaders from both parties on Tuesday outlining the legislation and urging passage. He noted that elder abuse is increasing as the elderly population grows, citing state DHS data that shows a 160 percent increase in reported elder abuse in Wisconsin since 2001.

Legislators wrapped up their regular two-year session this spring but are expected to return for an extraordinary session a week after the Nov. 6 election to consider whether to offer tax incentives to paper products maker Kimberly-Clark.

Senate Majority Leader Scott Fitzgerald’s office has said the session will focus exclusively on Kimberly-Clark, but Assembly Speaker Robin Vos said he would be open to considering other bills.

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Elder abuse task force proposes legislation

Family of reclusive millionaire will collect nearly $1.6 million estate in last-minute settlement

In 2016, Blanche Berenzweig collected a $1.6 million inheritance from the estate of LeRoy Ern, a client with dementia who lived the life of a hermit.

After months of fighting over the cash, Ern's family is getting nearly all his money, according to a settlement reached just before the case was to go to trial Monday.

"They were not going to get anything," said Kevin Demet, who represents 11 of Ern's 12 nieces and nephews. "So that's a big win."

Berenzweig, whose insurance license was revoked in June by State Insurance Commissioner Ted Nickel, will only keep up to $150,000, basically to cover her attorney fees and associated costs, according to Demet and Michael Ganzer, Berenzweig's lawyer.

Ern died of advanced dementia in 2016 at the age of 92. He left everything to Berenzweig, then a financial adviser living in Mequon and the Las Vegas area.

Ern had little contact with relatives and lived in a modest home on the 4600 block of North Parkway Avenue. The house was a fire trap and had no working furnace. It was full of piles of newspaper, junk and food, according to testimony in a 2017 hearing over the fate of Berenzweig's insurance license.

In his final years, Ern developed a friendship with Berenzweig, who had once sold him an annuity. Ern, a retired factory worker, would occasionally visit Berenzweig at her Mequon office to talk about a variety of subjects, such as history and world events, records show.

It wasn't long before Berenzweig became Ern's power of attorney for health and medical issues, the sole beneficiary of two annuities, and executor and sole beneficiary of his estate. She even arranged his private funeral and cremation. 

One month after Ern's death, Berenzweig collected $276,648 from one annuity and the following month received $734,467 from a second policy, state records show. 

Ern's nieces and nephews objected to the will in Milwaukee County Circuit Court, charging that Berenzweig illegally pressured Ern into making her the sole beneficiary.

State regulators in June ordered her to give the annuity money to the estate, and the trial that was scheduled for this week was to determine whether Berenzweig or the family members would collect the $1.6 million estate. Family members asked that the court void the will that made Berenzweig the sole beneficiary.

"In 2009 and 2010, (Berenzweig) took advantage of an isolated, elderly customer," Rachel Pings, an administrative law judge, wrote when she recommended in March that regulators order Berenzweig pay the annuity money to the Ern estate. "She profited illegally by more than $1 million." 

Aggressive court examination planned

Ganzer said Berenzweig's deteriorating health prompted the settlement talks. Berenzweig was expected to testify for at least a full day. 

"It became evident ... that she could not handle a full trial," Ganzer said. "She wanted to be back to square one."

Demet said his cross-examination of Berenzweig would likely have been aggressive, noting she had not turned over all of the documents he demanded and has provided conflicting information. 

Demet said serious settlement talks began Sunday morning and finished that evening. The family's lawyers will receive a 40% contingency fee, plus expenses, court records show.

Demet said had the matter gone to trial, the relatives could have sought additional money by claiming Berenzweig acted in bad faith. If the relatives had won on that count, Berenzweig could have been ordered to pay the family's fees and expenses, Demet said.

But going to trial also carries considerable risk because in this type of probate case, the judge gives one side or the other the entire estate. 

It's "all or nothing," Demet said. "So either they get everything or they get nothing."

Unlike many probate cases where close family members fight over the estate of a loved one, this matter was different because Ern had long lived the life of a recluse, seldom seeing any family members or friends.

"For anybody that ends up with LeRoy's money, there is somewhat of a windfall," Demet said. "Nobody was really close to the guy."

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Family of reclusive millionaire will collect nearly $1.6 million estate in last-minute settlement

BART board declines to endorse homeless conservatorship bill

Elected officials on the BART Board of Directors took a pass on endorsing a controversial state conservatorship bill, which is aimed at treating mentally ill, chronically homeless people.

At a Thursday BART Board of Directors regular meeting, agency officials acknowledged its struggles with people who don’t have homes and seek shelter by sleeping in BART stations.

Ultimately, the board voted to not endorse the measure.

“There are a lot of groups I highly respect who are opposing it,” said BART board director Rebecca Saltzman, at the meeting. Saltzman represents Alameda and Contra Costa counties.

Senate Bill 1045, authored by state Sen. Scott Wiener, would create a five-year pilot program in Los Angeles and San Francisco counties to establish a new category of conservatorships for people deemed incapable of caring for their own health and well-being due to serious mental illness or substance use disorders.

Business groups such as the Bay Area Council, Hotel Council of San Francisco, Golden Gate Restaurant Association and San Francisco Chamber of Commerce are in support of the bill, along with the California Hospital Association and California Psychiatric Association. Groups in opposition include the American Civil Liberties Union, California Association of Mental Health Patients’ Rights Advocates, Public Conservators, Coalition on Homelessness San Francisco and Mental Health America Los Angeles.

The bill is now pending action in the Assembly Appropriations Committee, with a deadline of August 17 to pass it to the Assembly floor.

Saltzman noted she was “concerned” about the long list of opponents. She and Director Lateefah Simon abstained from the vote. BART Board of Directors President Robert Raburn, who represents Alameda County, voted against endorsing the bill. Directors Nick Josefowitz, John McPartland, Thomas Blalock and Debora Allen voted to endorse the bill.

Directors Joel Keller and Bevan Dufty were absent from the vote. Dufty represents San Francisco and requested the vote to endorse the bill.

The proposal to endorse the bill failed to net a majority vote. Jim Lazarus, senior vice president of public policy at the San Francisco Chamber of Commerce, noted it was an odd vote considering BART has become a place “just like the streets where people seek shelter,” including people that are “clearly mentally ill, conservatorship laws are relevant to the mission of BART.”

He added, “the riding public should be concerned that BART directors did not weigh-in in a timely fashion.”

Notably, BART police would not be able to directly recommend individuals for conservatorship evaluations, a power the bill assigns to county sheriffs, director of county mental health departments or public social services, among others.

Despite this legal barrier, BART Police Chief Carlos Rojas told the board the agency would be comfortable in calling sheriffs and other entities to recommend homeless people in BART stations to conservatorship evaluations.

Josefowitz requested the board be allowed to take another vote to endorse the bill at its next meeting, when the two absent directors would likely return. However, he was told the state legislative session would be over before the BART board’s next meeting — too late to tell the state how BART feels its ever-growing homeless population should be treated.

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BART board declines to endorse homeless conservatorship bill

ISP: Attorney Stole More Than $100K From Special Needs Trust

(Brookville, Ind.) – An Indiana attorney is accused of taking money from trusts intended to help several people with special needs.

Kenneth Shane Service, 45, of Greenwood, was charged in Franklin County Court last month with Theft (level 5 felony) and two counts of Theft (level 6 felony).

Service’s law license was suspended in October of 2017, after he was first charged in Lawrence County with taking money from the special needs trusts of two residents there.

At the time, Indiana State Police detectives felt that there would be more victims, many of them special needs individuals for whom Service set up the trusts, in Indiana and other states.

It appears the hunch was correct. According to a September 17 court affidavit, Service allegedly stole more than $102,000 from a Brookville man who was the subject of a guardianship. One transaction for more than $71,000 was used to cover for money allegedly taken from another trust Service managed. Two withdrawals from the account by Service added up to more than $31,000. The three transactions took place between August and November 2016.

The Brookville victim’s guardian, his brother, was contacted in July by the ISP Special Investigations Service, Organized Crime and Corruption Unit. He told investigators none of the three transactions were authorized by him or his brother.

Service has yet to be brought to jail in Franklin County. A judge has fixed his bail at $10,000.
Service is also facing charges in Delaware County.

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ISP: Attorney Stole More Than $100K From Special Needs Trust

Republican Senators put forth package of legislation focused on prioritizing mental health in Washington

On Wednesday morning, Senators Steve O’Ban, John Braun, and Randi Becker announced a series of proposals aimed at improving mental health care and addiction recovery in Washington State. After several years focused on fully funding education, the legislators say it is now time to make mental health care reform the legislature’s top priority.

The proposals put forth by the legislators include reforms to expand Washington’s mental health workforce, new guardianship laws for family members of those with severe mental illness or drug addiction, efforts to improve mental health services in schools, and bills to enable patients to receive treatment closer to home.

Specifically, the legislators proposed five separate bills that they will pursue during the 2019 session. They include:

1. A bill creating a guardianship program in the state to provide supervision and individualized treatment for those that are “gravely disabled.” The proposed bill would authorize guardians to require treatment for incapacitated persons and require a treatment plan to be made within ten days of establishing a guardianship.
2. A bill increasing the behavioral health workforce. The bill would require the Department of Health (DOH) to create a reciprocity program to make it easier for certified, out-of-state behavioral health professionals to practice in Washington. The DOH would also be required to explore options for an “interstate compact” for licensing counselors.
3. A bill expanding the Offender Re-entry Community Safety Program (ORCSP). The ORCSP provides enhanced treatment, services, and case management for released prisoners with serious mental illness. The new bill would rename the program the Re-entry Community Safety Program and would expand to include state hospital patients who are committed as incompetent to stand trial after committing a violent felony or are committed based on criminal insanity.
4. A bill expanding mental health services in schools by creating a tele-health care delivery model available for students. The goal of the tele-health services will be to identify students in need of these services in order to help prevent school violence, adolescent suicide, and substance abuse.
5. A bill expanding the availability of community-based behavioral health facilities. As outlined in Governor Inslee’s recently announced mental health system reform plan, the bill seeks to move long-term civil commitments out of Western and Eastern State Hospitals and allow them to receive treatment closer to their communities. The bill asks voters to approve $500 million in bonds over ten years for construction of community mental health treatment facilities throughout the state.

Other proposed bills relate to increasing behavioral health peer support services, increasing coordination between the Department of Social and Health Services and the Veterans Administration, and developing long-term involuntary treatment capacity in communities.

“I am committed to working with my friends across the aisle to put the care of our mentally ill first. This is the session to make improving our mental health care system the top priority of our state,” said Sen. O’Ban, R-University Place.

“Our state faces a crisis in providing adequate, safe and effective treatment for people with mental illnesses,” added Sen. Braun, R-Centralia. “We know that treating people with mental illness in their community keeps them closer to their support network and improves long-term outcomes… An investment in helping people with mental illness goes beyond those being treated; it’s good for their loved ones, keeps our communities safer and recognizes the humanity of all people in our state.”

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Republican Senators put forth package of legislation focused on prioritizing mental health in Washington

Stranger in the house

Most home health aides offer vital care to the frail and aged. But some have other designs, leaving too many clients vulnerable to theft and worse. It is a crisis largely unseen, one which state authorities have done little about.

By Linda Matchan, Globe Correspondent September 15, 2018

NEW BEDFORD — At first, Sarah Estrella seemed like the answer to Deborah Lesco’s prayers.

An old spinal injury had slowly robbed Lesco of her ability to walk, leaving her lower body racked with pain that only medical marijuana could ease. The 68-year-old former special education teacher got around in a wheelchair and needed help with her daily activities.

Luckily, Lesco had found this “nice, sweet girl” on a state-sponsored caregiver website who was happy to take care of it all. “She had experience, she was smart, she was clean, she could lift me up,” said Lesco, who was further reassured because she knew some of Estrella’s relatives.

 

What could go wrong?

 

Everything. When she hired Estrella in September 2015, Lesco didn’t know that her new personal care attendant had faced 15 criminal charges since 1997, including larceny, assault and battery, shoplifting, car theft, prescription drug possession, and check forgery.

Soon, strange things began to happen. Lesco started getting late charges on credit cards that she couldn’t find. Her rent check bounced and she discovered she had a $2,500 tab at Target even though she’d never opened an account there. Over a four-month period, from February to May of 2016, Lesco estimates she lost more than $20,000 in bank withdrawals and unauthorized credit card charges — one made at a sports bar.

Horrified, she confronted Estrella and accused the younger woman of using her credit cards. “She didn’t deny it,” recalled Lesco, who said Estrella was “sneering and sarcastic. . . . She was like, ‘Yeah, so what?’ ”

Estrella pleaded innocent to charges of larceny and credit card fraud in the spring of 2016.

PEOPLE LIKE SARAH ESTRELLA are the stuff of baby boomers’ nightmares as they increasingly rely on an army of nurse’s aides, personal care attendants, and others to help them remain in their homes deep into old age. The category of personal care aide is projected to add more jobs by 2026 than any other occupation in the country, according to the Bureau of Labor Statistics.

Many of these aides enter the home as virtual unknowns, undergoing no background check and receiving little, if any, training. Consumers often know more about what aides cost than whether they can be trusted. And with demand for home aides so high, those seeking care are simply relieved to find someone to take the job.

Theirs is an honorable calling, and many home aides feel gratified to help clients in their time of need. Some become dear friends, almost family members.

But sometimes they help themselves — to their clients’ money, belongings, medications, even identities. It can be a predator’s dream career.

Astonishingly, there is almost no government safety net to protect people seeking home care from these dangerous strangers. Unlike nurses — or even hairdressers or manicurists — home aides don’t need a state license. Anyone can call him or herself a home care worker in Massachusetts and work privately, though state law mandates that home care agencies perform criminal background checks on workers. Agencies typically offer greater accountability and supervision of aides than workers hired privately, but they’re too expensive for many families.

There are also essentially no credentials required to work as someone’s caregiver, just a willingness to do tedious, sometimes backbreaking work that typically pays $11 to $13 an hour. Personal care attendants hired through a MassHealth program, like Sarah Estrella, are merely required to attend a state-run three-hour orientation session. Additional training is entirely optional.

Massachusetts lags in required training for workers seeking to be certified, too — among New England states, it is tied with Connecticut for the fewest hours mandated.

Adding to the general lack of oversight, major websites where customers seek home aides, such as Craigslist or, until recently, the state-sponsored Rewarding Work site, don’t screen workers or check the criminal backgrounds of job seekers at all, making it easy for people such as Estrella to slip through.

Crimes committed by home aides against their clients get little public attention in Massachusetts, in part because no single agency is charged with keeping track of the home aide workforce. Consequently it’s impossible to know, or even estimate, how common it is for Massachusetts home aides to victimize their clients.’’

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Stranger in the house

State aging secretary highlights discussion to examine elder abuse

Teresa Osborne

WAYNESBURG – State Department of Aging Secretary Teresa Osborne opened her speech Thursday to Greene County Elder Abuse Task Force with a startling statistic that one in 10 adults over 60 will face some type of abuse, but only one in 24 cases are reported.

“This means that very few seniors who have been abused get the help that they need,” Osborne said.

Reports of abuse, neglect and abandonment of elders continue to rise each year and the investigations are increasingly complex, she said.

“Last year at the Pennsylvania Department of Aging, we received 28,633 reports of need for protective services for older adults,” Osborne said. “This was an increase of 17.3 percent from the prior year. In Washington, Greene and Fayette counties, last year nearly 1,500 reports of need of protective services were received, an increase from two years ago of about a thousand reports.”

In her first official visit to the community during the county’s inaugural Elder Justice Day at Valley View Farm near Waynesburg, Osborne and others attempted to raise awareness of the vulnerabilities older adults face, including fraud and abuse.

Across the state, the most common allegation reported is caregiver neglect. Victims are commonly women in their 80s who still live in their homes alone. Perpetrators are often between 30- to 59-year-old women.

Osborne shared some anecdotes from her over 28-year career working with older adult populations. Despite the difficulty and heartache she experienced, it “paled in comparison to anything” her clients faced. At the core of every case was a real human being who was hurting.

She recounted the case of Eloise, a widowed woman who turned to a neighbor for assistance. This neighbor moved Eloise out of her home and into his, selling off her belongings and property and pocketing the cash. The neighbor would throw things at her so they would just miss, but still be enough to frighten her, she said. Osborne helped Eloise move into a personal care home and she eventually saw justice through theft charges and a $28,000 restitution check.

“She could move on, finally, with her life, but really, her life was never the same and six months later, she passed,” Osborne said.

She thanked attendees for taking the time to come to the event and to work on this issue, to ensure people learn to recognize elder abuse and know what to do when they see it.

“Your voices are incredibly important in this effort,” Osborne said.

Osborne is set to return to the area next month so she may meet with local Southwestern Pennsylvania Area Agency on Aging staff. Because of their caseloads, the protective service investigators were too busy to attend Thursday’s talk.

Osborne recently attended a small listening session with grandparents who are raising their grandchildren due to their children’s substance abuse disorders in Luzerne County and said she would like to do the same when she returns to Greene County next month. The conversations capture the needs and gaps in services offered to these seniors.

She said this event was a great opportunity to elevate awareness, as the number of reports keeps rising and resources are limited.

Following Osborne’s opening statements was a question and answer session with guardianship attorney Kathleen Gustine, Marie Christinis with protective services, and First Federal President and CEO Charles Trump, who provided expertise on bank fraud and financial exploitation, to share their experiences. Greene County President Judge Farley Toothman also commented on issues he experiences in the court. Area seniors, healthcare professionals, service providers and local lawmakers were among the audience.

Greene County Area Agency on Aging’s Executive Director Leslie Grenfell said the day provided “information on how to identify elder abuse, report it, and the resources that are available in the community to help support older victims.”

Chris Gardner, court assistant for program development at Greene County Courthouse and member of Elderly Abuse Task Force, said Thursday’s event was aimed to sparking a cultural change. The goal was to increase awareness of the financial abuse that takes place, as well as the impact of the drug epidemic on the elderly population. She also wants to emphasize it’s okay to stand up and ask for assistance when needed.

Those that suspect elder abuse can call the 24-hour statewide hotline at 1-800-490-8505 or contact their local Area Agency on Aging. Those that report are protected from retaliation and calls are confidential. The Southwestern Pennsylvania Area Agency on Aging covers Washington, Greene and Fayette counties and can be reached at 724-489-8080.

Full Article & Source: 
State aging secretary highlights discussion to examine elder abuse

Caregiving Is Killing Us: A Nation Of Daughters In Crisis

For family caregivers, everything is fine until it isn’t.

One cough, minor medical procedure, or incident of forgetfulness can spiral into months and years of emergency department visits, confusion, financial stress, and strained family relationships. That’s what happened to Yolanda Carter 11 years ago after her mother had knee surgery.

“The hospital called me every five minutes,” said Carter , 46, of California. “My mother was trying to break out of the hospital. She went from kind of okay to can’t drive to living in assisted living in two years.”

Carter initially attributed her mother’s behavior to the ordinary stress of aging. However, signs of dementia increased as her mother frequently got lost, missed appointments, and grew agitated and violent.

“You have to constantly watch people with dementia because they want to leave,” Carter said. “I used to travel for work, but I had to quit my job. Since then, I haven’t been able to find comparable income. I have had jobs, but I couldn’t have a career anymore.”

While Carter has siblings, they have not taken an active role in their mother’s care. Carter is managing her mother’s care and raising her daughter with the help of a loving and supportive husband. But sometimes it all gets to be too much.

“Even though I act like I’m tough, I’m really not,” said Carter. “I don’t wear my emotions on my sleeve. No one knows how tired I am.”

The Costs of Caregiving 

Carter is not alone.

Roughly 66 percent of all family caregivers are women. The average caregiver is a 49-year-old woman who works outside the home and provides at least 20 hours a week of unpaid care to her aging parent, according to the latest data from the Family Caregiving Alliance.

While men are caregivers, women spend as much as 50 percent more time than men in providing care. Survey data analyzed by Rich Johnson and Josh Wiener at the Urban Institute found that daughters account for seven out of 10 adult children who help frail parents. Daughters are also five out of every six adult children responsible for the daily, labor-intensive tasks such as feeding, bathing, and dressing that keep their parents out of a nursing home bed.

The work may be unpaid, but it doesn’t mean that it’s free.

Women bear significant financial, emotional, and health costs for caring for aging parents, especially if they are also raising children.

Caregiving has a significant economic impact on the family – whether it’s paying for prescription medications, installing a ramp for a wheelchair-bound parent, or paying for assisted living home expenses not covered by Medicare, private insurance, or long-term health insurance.

More money is needed to cover these expenses. But female, family caregivers often limit their earning potential to take care of frail parents by working fewer hours, passing up job promotions, training and other assignments that lead to career advancement, taking a leave of absence, or switching from full to part-time employment.

A 2011 MetLife study estimates that female caregivers lose about $324,044 in lost wages and Social Security benefits.

One four-year study found that women caregivers were nearly six times as likely to suffer depressive symptoms and anxiety than non-caregivers. Researchers also found that women caregivers are also more likely to defer their health needs while caring for others which can lead to significant decline in their own health.

Photo Credit: www.ml.com

Well-meaning friends may suggest that we take time out for self-care, but that’s not always possible.

Debra Gibson, 55, of Mississippi cared for her critically ill mother and husband while taking care of two grandchildren while her youngest daughter worked. On some days, Gibson had no choice other than to bring her grandchildren to the hospital while she looked after her husband and made a makeshift pallet on the closet floor for the children to sleep.

“I used to cry every day,” Gibson said. “My break was going outside in the backyard and screaming. Then, I would get myself back together and go back in the house to take care of my mom.”

Gibson found comfort in her faith to see her through.

However, women caregivers are also at increased risk of: elevated blood pressure and increased risk of developing hypertension; lower perceived health status; poorer immune function; slower wound healing; and an increased risk of mortality.

In short, caregiving is killing us.

Photo Credit: www.nia.nih.gov

A Constellation of Challenges 

Family caregivers face a constellation of challenges. Among them are care, family, and money.

Care includes managing medications, making decisions, providing day-to-day care, dealing with hospitals and doctors, and finding the right care.

“When you start taking care of your parents, it’s a race against the clock to get the experience and knowledge you need in the shortest amount of time possible so that you don’t run out of energy or money or both,” said Anne Tumlinson, a health care and public policy expert with 25 years of research and consulting experience in post-acute and long-term care financing and delivery.

Long-standing family dynamics, especially sibling relationships, become magnified when a parent is critically ill. It’s often up to the primary family caregiver, who is in most cases the daughter, to figure out how the family will pay for the cost of care, as well as handle wills, legal issues, Medicaid, and private insurance.

However, the most significant yet unspoken stressor female, family caregivers face is the expectation that they will continue to do and be it all.

Women are still expected to be the perfect mother, wife, and employee while taking care of an elderly parent who demands more of their attention as their health declines. Black women and other women of color face additional pressure to live up to expectations of the “strong” one or dutiful daughter who will take care of everyone without a complaint or thought to her own needs.

“We (women) think we are the greatest multi-taskers,” said Dawna Fields*, 47, of California. Fields’s mother is in the throes of advanced dementia. “But when it all came to a head, I was not.”

Fields wasn’t sleeping because her mother was up at all hours. Her husband and son felt neglected. She stopped exercising and experienced back issues. Finally, her husband insisted Fields rest at a resort for a few days after her recent back surgery.  (Continue)

Full Article & Source:
Caregiving Is Killing Us: A Nation Of Daughters In Crisis

A New Addition to Marti Oakley's T. S. Radio Network: Dialysis Advocates Arlene Mullen, Jeff Parke and Chili Most

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

We are pleased to announce a new addition to the TS Radio Network lineup.

Arlene Mullin, Dialysis Advocates, along with Jeff Parke, Mental Health Counselor, will be hosting this show each Tuesday evening to alert the public to the growing epidemic of the abuse of dialysis patients.

Joining Arlene and Jeff this evening for their first show will be the one and only Chili Most!

Arlene Mullin — advocate, 20 years experience guiding patients and their families through all aspects of End Stage Renal Disease treatments. Mullin has served patients in a majority of states, engaging both Medicare and state health authorities towards resolution of quality care issues at clinics. Comprehensive knowledge of care issues on clinic level. She was instrumental in getting the hearings on aging before the U.S. Senate in 2000 where she testified on patient care issue within the dialysis industry.

Dialysis Advocates is grateful for the opportunity to get this important message out for all Dialysis Patients. We asked Chili Most to be our guest on our first show. He has always been in your corner and has helped getting this message out.

We will be having a guest on the first part of every show. Then we will open the Microphones for the Town Hall. Patients and others will be able to discuss concerns and solutions. It will be a patient group, including families.

We also realize that many patients need to be supported and being heard is important for all patients in a safe venue.

Producer/Singer/Musician/Recording Artist/Activist/Radio Personality and Author. Also I currently lead The International Stop The Violence/N’ Love With Love Campaign, in 6 years I’ve been on over 2500 radio appearances over 200 million listeners. Our goal is to breakdown the barriers of Age, Race, Gender and Religion to change the midset of humanity by putting GOD first and saving the Young People of the world. They are the future and GOD is the alpha and omega.

The Chili Most Show comes on Monday through Friday on WVFG 107.5 FM in Uniontown, Alabama at 8:30 a.m. PST. 10:30 a.m. CST. The theme of the show is “Fight For Your Rights” which is a dedication to Rev. Dr. Martin Luther King Jr. You can see The Chili Most “Fight For Your Rights” 13thStreet Records Video on You Tube. On Sunday you can hear The Chili Most Stop The Violence/N’ Love With Love Sermon Series at 8:30 a.m. PST. 10:30 a.m. CST.
GOD Bless.

LISTEN LIVE or listen to the archive later

The War On The Elderly: Legal Capacity vs Mental Capacity

Marti Oakley
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“Even should these often contrived diagnosis’s have any legitimacy, this is still not a valid, lawful or moral reason for unlawfully denying the victim legal standing. And as no crime has been committed, a mental incapacity should never be used as the excuse to deprive another individual of their right to speak for themselves, to retain their identity and legal standing.”
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If protecting the elderly who might be vulnerable was truly the concern of the unconstitutional probate tribunals, every effort would be made by those hearing examiners or administrative clerks, both who attempt to claim the title of “judge” (as in a court of law”), to preserve and protect the legal standing and legal capacity of the targeted victim. Instead, these pretenders to the bench move immediately to declare the victim as dead in the law. This is referred to as a “statutory civil death”, a legal fiction created now applied to probate, to enable the theft of estate. The loss of legal capacity and standing are considered to be collateral consequences of being convicted of a crime, yet the targeted victim has committed no such crime, other than aging with assets that a professional predator has decided should belong to him/her.

Legal Capacity

Arbitrarily removing your legal standing which is necessary to preserve your rights and protections under the law (not statutes and codes) is the first step to ensure the tribunal sanctioned theft of identity and the ensuing unlawful conversion of real property and liquid assets by the predators who prey on the elderly for profit. Legal standing is necessary to preserve your legal agency (your right to act on behalf of yourself)…your right to exercise your rights and duties as a living, breathing human being. To be recognized in the law as, existing.

Becoming a “ward of the state” and by extension, guardianized, is an unconstitutional theft of your legal capacity and your legal agency.

Mental Capacity

Mental capacity involves decision making skills and can vary distinctly from one individual to another. These variances can be the result of cultural, religious, and other social factors. They can also be the result of the vast differences in people in general. And in the case of predatory guardians and probate tribunals, they can simply be fabricated and exaggerated claims of what they declare to be unusual behavior that for some reason should allow them to take ownership of the victim. False, exaggerated and fabricated claims are allowed to be entered into the record of the tribunal as evidence that the individual needs to be neutralized, rendered defenseless and robbed. I liken this to modern day grave robbing only no one has dug the hole just yet.

In the probate tribunal, mental capacity is the weapon of choice used to denigrate, marginalize, diminish and render the targeted victim as having lost legal capacity and by extension their legal agency. Even if mental capacity is legitimately in question, why would this be used as the rationale for taking away the rights and protections afforded to any other individual? This is discrimination based on a real or an conveniently created mental disability. And if the individual is truly suffering from diminished mental capacity, why would the probate tribunals use this to cause further harm and suffering? Wouldn’t the proper and moral thing to do be to make sure all rights and protections were preserved? After all, the tribunal is hearing claims that the individual is already at a disadvantage.

The Status Approach used to Deny Legal Standing

Although regularly used as the pretext for the guardianship which enables the theft of the estate, mental capacity hearings are not objective, nor are they based on any provable scientific criteria. These most commonly used pretexts are made as observations that have no other supporting medical evidence other than the predator has declared it to be so. In many cases, the supporting observations of mental health professionals who many times have never actually interviewed the individual, are supplied to the tribunal containing only hearsay based diagnosis’; these the result of comments made to the professionals by stakeholders in the desired guardianship and can be, and most times are, fabricated.

The Outcome Approach Used to Deny Legal Standing

Any decision made by an elderly individual, especially if it entails transfers of assets or attempts to sell real property, can be deemed to have negative consequences that the predators use as evidence to begin the process of identity and asset theft. But this can also be something as simple as refusing to take a medication with horrific side affects, or, deciding not to mow your yard for a month. What are the outcomes of these decisions?

The Functional Approach to Deny Legal Standing

Although there are truly instances where an obvious deficiency in decision making skills comes into question, these instances should not be used to deny legal capacity. Supportive decision making that includes family and friends should be in order to keep the individual as independent as possible. As it is, the ability of the individual to understand the consequences of a decision and what the most likely outcome would be based on that decision, is commonly used as the pretext for taking them hostage in the probate system.

The Right to Equal Recognition Before the Law

Discriminatory psychological labels are applied to the victim which seldom have any relation to reality. And even less seldom is any evidence produced to support the contentions of the predators that any such mental disability actually exists. Even should these often contrived diagnosis’s have any legitimacy, this is still not a valid, lawful or moral reason for unlawfully denying the victim legal standing. And as no crime has been committed, a mental incapacity should never be used as the excuse to deprive another individual of their right to speak for themselves, to retain their identity and legal standing.

If the intent was to actually protect the vulnerable elderly individual, every effort would be made to preserve their legal standing and legal agency. Instead, the exact opposite happens. Now, monetized, and owned by the predatory guardian, they are treated as a “thing”, as a commodity or chattel: now moveable goods and property and treated with as much care and dignity
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https://legal-dictionary.thefreedictionary.com/civil+death
CIVIL DEATH, persons. The change of the state (q.v.) of a person who is declared civilly dead by judgment of a competent tribunal. In such case, the person against whom such sentence is pronounced is considered dead. 2 John. R. 218. See Gilb. Uses, 150; 2 Bulst. 188; Co. tit. 132; Jenk. Cent. 250; 1 Keble, 398; Prest. on Convey. 140. Vide Death, civil.
A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
https://definitions.uslegal.com/s/standing/
Standing is the ability of a party to bring a lawsuit in court based upon their stake in the outcome. A party seeking to demonstrate standing must be able to show the court sufficient connection to and harm from the law or action challenged. Otherwise, the court will rule that you “lack standing” to bring the suit and dismiss your case.
There are three constitutional requirements to prove standing:

1. Injury: The plaintiff must have suffered or imminently will suffer injury. The injury must not be abstract and must be within the zone of interests meant to be regulated or protected under the statutory or constitutional guarantee in question.
2. Causation: The injury must be reasonably connected to the defendant’s conduct.
3. Redressability: A favorable court decision must be likely to redress the injury.

Full Article & Source:
The War On The Elderly: Legal Capacity vs Mental Capacity

Mayor prepared to compel treatment for frequently detained homeless

Mayor London Breed on Thursday vowed to introduce legislation creating a conservatorship program to compel homeless people suffering from mental illness and addiction to undergo treatment after a state bill allowing the expansion of conservatorships was signed into law.

Senate Bill 1045, introduced by Senator Scott Wiener (D-San Francisco), permits San Francisco, Los Angeles, and San Diego Counties to expand conservatorship programs, which allows a judge to order someone to undergo treatment, including in locked facilities.

The bill, signed into law Thursday by Gov. Jerry Brown, raises questions about the balance between medical care and personal liberties, but also about the strategies The City is using to address the homeless issue.

Counties need to pass legislation to implement the law.

Breed has strongly supported the bill and on Thursday vowed to introduce legislation to implement it in San Francisco.

“The status quo is unacceptable—it is not humane to allow San Franciscans struggling with severe mental illness and addiction to continue to suffer on our streets,” Breed said in a statement. “I have been a longtime supporter of strengthening our conservatorship laws and I look forward to moving quickly to implement this legislation at the local level so we can start providing care to those in need.”

But critics like Jessica Lehman, executive director of the nonprofit Senior and Disability Action, said The City shouldn’t implement the law but instead focus on adequate services.

“Conservatorship needs to be considered carefully and individually, not as a strategy to deal with homelessness,” Lehman said in an email to the San Francisco Examiner. “This has become a political issue about seeing homeless people with mental health disabilities on the streets, and it relies on the false narrative that they choose not to get services.”

She continued, “There is not enough housing, in shelters or permanent housing, and people are not being offered voluntary mental health services. The City must give people the services they need before rushing to scoop them up to get them out of the public eye.”

Breed seemingly has the votes to pass the legislation. A resolution to support SB 1045 received a 6-5 vote in April by the board. Supervisor Rafael Mandelman also helped lobby for the bill with Breed in Sacramento.

“San Francisco needs every tool we can get to help people who can’t help themselves get off our streets and into care,” Mandelman said in a statement. “I look forward to leading on local implementation with the Mayor and working with my colleagues on the Board to change our conservatorship laws here in San Francisco.”

Under the law, a person could be considered for conservatorship “due to a serious mental illness and substance use disorder, as evidenced by frequent detention” under 5150, which allows The City hold people involuntarily for up to 72 hours for evaluation if deemed a danger to themselves or others.
Frequent is defined as eight or more holds under 5150s within a year. A conservatorship would require a judge order and could last for up to one year.

“It’s neither progressive nor humane to watch as people deteriorate and die on our streets,” Wiener said in a statement. “Our counties do not have the tools they need to effectively help individuals suffering from severe mental health and substance abuse disorders. Senate Bill 1045 fills a significant gap by allowing our counties to care for our most debilitated residents and makes our conservatorship laws more effective.”

The City has already been preparing for the implementation of SB 1045 by establishing a coordinated effort among multiple city departments identifying those who require the most services, such as visits to the emergency room, and shifted the petitions for conservatorships to the City Attorney’s Office, away from the District Attorney’ Office, and funded more attorneys for the purpose.

David Elliott Lewis, vice president of the Mental Health Association of San Francisco, said Thursday he was against SB1045, and worried it “lowers the protection” of people’s civil liberties and would criminalize the mentally ill and those suffering from substance abuse. He said he understands that for Breed there is a “lot of pressure to do something” about the homeless and that “they hope to sweep it away with this bill” but didn’t think it would have an noticeable impact.

“The solution is supportive housing and more housing,” he said.

He added that The City would “get more results from Our City, Our Home than we will ever get from SB1045.”

Our City, Our Home, or Proposition C, is a tax on San Francisco’s largest businesses to fund homeless services before voters this November.

Breed continues to take “no position” on Prop. C, her spokesperson confirmed to the Examiner Thursday.

Earlier this year, SB 1045 drew opposition from homeless rights groups. The Examiner previously reported that Curtis Child of Disability Rights California told a state Senate committee that the answer wasn’t expanding conservatorships.

“The problem rests still with the lack of the supportive housing throughout the state and the wraparound services that accompany that,” Child said at the time.

Conservatorships are currently allowed under the Lanterman-Petris-Short Act, passed in the 1960s, for those determined by a court judge to be “gravely ill,” unable to provide their own basic needs like food, clothing or shelter.

Full Article & Source:
Mayor prepared to compel treatment for frequently detained homeless

Guardianship vs Settlement Trust: Which is the better solution?

When a person is injured, they can suffer any number of life-changing medical complications. In some cases, they may be rendered incapacitated. Legally, this means the person is no longer capable of making some—or possibly any—decisions on his or her behalf. The law provides various options to ensure the incapacitated person’s needs are met. On one end of the spectrum is guardianship, which can result in delegation of nearly all of the incapacitated person’s rights to another person, known as the guardian or conservator. While guardianship is sometimes the best option, other options must be explored to avoid taking away more than is necessary. Why use a sledgehammer when a scalpel will do?

This post will explore how guardianship compares to one alternative: the settlement trust. A brief overview of each is provided along with a discussion of how the two differ in terms of functionality, cost, risks, and benefits.

Guardianship 

While the definition varies by state, generally a guardianship may be established when an individual’s capacity is diminished. A judge or magistrate will determine whether the individual lacks capacity and then appoint someone to make decisions for the incapacitated person, if needed. The court also determines the scope of the guardianship. Guardianship may be over the person, the property, or both.

A guardianship over the person includes healthcare and other personal decisions. Guardianship over the property includes decisions about the individual’s money or assets. Guardianship may be full (plenary) or limited. The majority of guardianships are plenary over both the person and property, which essentially strips a person of all delegable rights. Most states now have statutes directing that guardianship be as limited as possible and preventing the court from creating a guardianship unless no less restrictive alternatives are available.

Settlement Trust

One alternative to guardianship, at least with regard to property, is a trust. Trusts offer management and oversight of the incapacitated person’s funds, which satisfies the same goals sought in establishing a guardianship: protection, preservation, and prudent decision-making. A settlement trust is a repository for settlement funds, whether received as a lump sum or as periodic annuity payments, and dispersed in accordance with terms of the trust by a trustee.

Functionality 

Who serves and what can they do?

One of the primary differences between a trust and guardianship is who handles the money and how much authority they have. Guardians are appointed by the court and must meet minimal qualifications which vary by state. Guardians are often related to the Ward and while some states require that they complete a few hours of court-approved training, there are no educational or experiential requirements. A guardian of the property gains legal authority over their Ward’s property. This authority is similar to a power of attorney in that the guardian may have virtually unrestricted access to the Ward’s bank accounts, home, vehicle, personal property, etc., and the ability to dispose of such property. Court approval may be needed to sell certain kinds of property, like the Ward’s home. Guardians have a fiduciary duty and as well as duties to act in good faith and in the best interests of the Ward.

The trustee of a settlement trust is selected by the grantor, who is also the beneficiary because the trust is established with the beneficiary’s own funds. If the trust is a pooled trust (where the funds of multiple beneficiaries are held in sub-accounts under one master trust), the trustee will be a 501(c)(3) non-profit corporation with trust officers or administrators managing the distributions. These companies work with legal counsel to establish policies for making distributions that comply with applicable law and industry best practices, like having a distribution committee that makes decisions for high-dollar or unusual distribution requests. Trustees have a number of duties as defined by state law, including duties of loyalty, good faith, and impartiality, in addition to fiduciary duties.

How does the Ward or beneficiary access their funds?

A guardian has authority to withdraw funds directly from the Ward’s accounts. While these withdrawals must be for the benefit of the Ward, there is no intermediary or roadblock other than the requirement to provide an annual accounting and seek court approval for certain purchases.  Worse yet, for a minor, they get all of the assets held in a guardianship when they turn age 18 if they are competent.

A trustee makes distributions in accordance with the language of the trust, which may have strict standards or offer wide discretion. A settlement trust typically gives the trustee discretion to use funds for the health, education, maintenance, and support of the beneficiary. This means the beneficiary does not have unrestricted access to his or her funds. They must follow a process of requesting funds, waiting for approval, and then waiting for funds to be delivered.

What happens to the assets?

The guardian generally has discretion to decide what happens with the beneficiary’s property so long as it is in the best interest of the beneficiary.

Funds held in trust are invested and managed by experienced professionals to make them last as long as possible, potentially past the death of the beneficiary.

What happens to leftover funds?

When a Ward dies, the guardian’s authority ends and any remaining funds pass according to the will, laws of intestacy, or any governing contracts.

When a trust beneficiary dies, the trust terminates and the funds pass to the remainder beneficiary or according to other terms of the trust.

Is it permanent?

Once a guardianship is established, it exists until the death of the Ward or the court restores the person’s capacity. The person serving as guardian may change (the can resign or be removed by the court), but the Ward is under the jurisdiction of the court until the court decides otherwise.

A settlement trust irrevocable. This means the beneficiary cannot “undo” or liquidate the trust. The money will stay in the trust until it is distributed in accordance with the terms of the trust. However, at the beneficiary’s direction, the trustee could be removed or funds could be transferred to another pooled trust.

Cost

Guardians may recoup the reasonable cost of their services, including the cost of hiring professionals to provide advice.

There are costs for setting up a trust, including legal and start-up fees. Trustees may also charge for their services, as well as hire professionals, such as asset managers. Trustee and asset management fees are typically assessed as a percentage of the assets held in trust. Using a pooled trust is one way to minimize these fees because they are administered by a non-profit. Further, if priced appropriately and managed properly, the costs of the trust will be outweighed by the gains.

Impact on Public Benefits

While compensatory damages for personal injuries are not taxable, they will count as income for purposes of determining eligibility for needs-based benefits like SSI and Medicaid. Guardianship offers no protection in this regard. If the beneficiary takes a lump sum, or the proceeds are structured in an annuity that pays more than the monthly income and asset cap, the beneficiary may lose their benefits or jeopardize qualification in the future.

While a settlement trust is a countable resource, it can easily be transferred into a trust with appropriate special needs language. If done properly, eligibility for benefits like SSI and Medicaid would be preserved.

Risks

Despite court oversight, there are numerous examples of guardians who have mismanaged or abused the assets of their Ward. If the guardian has already spent the funds or sold the property, there may be little anyone can do to regain those assets. Even non-abusive guardians are not without risk because their financial literacy could be minimal. While lack of financial literacy for someone without many assets may not be the end of the world, it can create a minefield for the guardian of someone with a large settlement. The guardian may not fully understand the consequences of their actions, investment strategies, or the best way to provide for the injured person’s future.

There are few risks associated with trusts that are managed by a professional trustee and they are the risks inherent with any investment. However, funds are generally invested conservatively and suffer few losses, if any.

Benefits

The benefits of guardianship are that there is little risk to the beneficiary when a trustworthy person is selected, and funds can be accessed quickly. The experience is also much more personal and creates far fewer hoops to jump through.

The benefits of using a settlement trust are numerous. In addition to the protection of having a professional trustee, low costs, and options for low-risk investment, settlement trusts contain provisions that actively protect the funds and ensure their longevity. When paired with a structured settlement, settlement trusts offer protection from being sold on the secondary market, which is a good option for impulsive beneficiaries who may not understand the negative impact of selling their annuity. A structured settlement also ensures longevity because annuity payments are periodic, so the beneficiary will only ever have access to a portion of the award. Finally, a settlement trust can include spendthrift provisions, which offer protection from creditors.

Conclusion

It is important to recognize that there is no one-size-fits-all solution for any injury victim. The “right” solution will depend on the individual’s diagnosis, prognosis, financial situation before and after the accident, level of vulnerability, network/support system, long-term goals, short-term needs, and anything else that could be relevant to planning for their new and unique set of life circumstances. A settlement trust can be a great solution for injury victims with diminished capacity who have limited assets beyond their settlement. Structured properly, a settlement trust offers the oversight and protection sufficient to qualify as a “less restrictive alternative,” making guardianship unnecessary for some individuals. It allows surgical precision where the broad sweep of a sledgehammer could do more harm than good.

Full Article & Source:
Guardianship vs Settlement Trust: Which is the better solution?