Ending abuse of the disabled

Nicky’s Law, originally filed by state Senator Mike Moore of Millbury and state Representative Linda Dean Campbell of Methuen, passed the Senate 36-0 last summer but got stalled in the House Ways and Means Committee when the Legislature ended its formal sessions.

A society is — or should be — judged by how well it protects its most vulnerable citizens. But when it comes to protections for those with intellectual and developmental disabilities, Massachusetts still has a long way to go.

And by every statistic available, the problem of physical and sexual abuse is growing worse with every passing year.

“It is an epidemic of abuse against people with disabilities,” Nancy Alterio, executive director of Massachusetts’ Disabled Persons Protection Commission (DPPC), told a legislative oversight committee recently.

One way to make a dent in the problem is rather straightforward: a registry of caretakers against whom claims of abuse have been substantiated. The idea has gone by many names — often named for those victimized. The current version is called “Nicky’s Law,” after Nicky Chan, whose parents, Nick and Cheryl Chan, were made aware of a caretaker’s physical abuse of their son. The case against their son’s abuser actually went to court — few make it that far — but the caretaker was found not guilty and can, therefore, continue to work in group homes.

“I can tell you that the systems that are in place are not working,” testified Anna Eves, vice president of the Massachusetts Coalition of Families and Advocates. Her son, too, was the victim of abuse and neglect last year. Abuse claims were substantiated against seven people who worked with her son. Two of those workers were still on the job, she said.

The problem is that in many instances the victim is nonverbal, and absent visual evidence — and, sad to say in some cases, even with visual evidence — cases may be “substantiated” by the DPPC but not result in a successful criminal prosecution. (The standard for the latter is much higher.)

The victim remains the victim. But the abusing caregiver is free to move on to the next group home.
The numbers alone are horrifying. Last year the DPPC received 11,895 reports of abuse on the 24/7 hotline it operates — half of them involving people with intellectual and development disabilities. Of those reports, 878 dealt with allegations of sexual abuse — 387 involving people with intellectual disabilities, 409 involving those with mental health disabilities.

DPPC has seen a 30 percent increase in abuse allegations in the past five years, Alterio testified.

Thursday, members of a number of advocacy groups, including the Arc of Massachusetts, plan a vigil at the State House to make one last push for the registry legislation this year. Nicky’s Law, originally filed by state Senator Mike Moore of Millbury and state Representative Linda Dean Campbell of Methuen , passed the Senate 36-0 last summer but got stalled in the House Ways and Means Committee when the Legislature ended its formal sessions.

The bill was actually much improved as it made its way through the Senate, which added due process safeguards for accused caregivers, including an appeals process, and put the registry under the umbrella of the DPPC.

Massachusetts has made significant improvements in how its agencies handle reports of abuse and the level of services it now provides to victims. But all of that is after the fact. The registry can help prevent abuse by ridding the system of those who have no business being left to care for our most vulnerable citizens. They ought not have to wait another year for the Legislature to act.

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Ending abuse of the disabled

Constable a no-show in court

GLASGOW – A man who was re-elected, unopposed, last month as the constable for Barren County's District 7 was scheduled to appear in court Friday for a pretrial conference in a case in which he is the defendant.

After more than two hours from the start time for the morning docket, the case was called in which George “Buddy” Houchens Jr., 70, was charged with violation of a Kentucky emergency protective order/domestic violence order, a misdemeanor, in Barren District Court, and neither he nor anyone else approached the bench on his behalf.

District Judge Gabe Pendleton told Assistant County Attorney Mike Richardson that an emergency guardianship hearing had been scheduled for Houchens a couple of weeks from that day, and the person who had procured the emergency protective order Houchens is accused of violating was the one petitioning for the guardianship.

Pendleton suggested they continue the pretrial conference to January and see what happens with the guardianship case in the interim.

An emergency protective order had been issued against George “Buddy” Houchens Jr. on July 21 after he allegedly had been verbally abusive that morning and then went to a third party's home, where the adult female who later became the petitioner for the EPO had gone, and threatened to shoot that woman and possibly another individual apparently not present at the time, according to the petition for an order of protection.

Just after midnight the following morning, Houchens was served with the EPO by Barren County Sheriff's Office Deputy Adam Bow, who verbally read and explained it to Houchens, according to the misdemeanor citation. Bow wrote that he followed Houchens to a friend's residence where he was going to spend the night, but shortly after the deputy left there, so did Houchens. Bow went to where he believed Houchens might have gone.

“Upon arrival in the area, I discovered that [Houchens] was [there], which was a protected location,” Bow wrote on the citation. “I then got out and spoke with … the protected party in the EPO. She stated that [Houchens] had already been to the door and tried to get in the residence.”

The narrative of the events on the EPO petition indicates that a health issue may have contributed to Houchens' alleged behavior.

Houchens was released from the Barren County Detention Center on a $500 bond later the same day of his arrest. The EPO/DVO case was later dismissed by the petitioner.

The Glasgow Daily Times does not identify alleged or confirmed victims of domestic or sexual abuse.

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Constable a no-show in court

Augusta man denied bond in elderly exploitation case

An Augusta man accused of cheating a disabled neighbor out of more than $100,000 was denied bond Thursday.

Charles Miles, 50, is charged with exploitation of an elderly or disabled adult and unauthorized practice of law. At the conclusion of a bond hearing in Richmond County Superior Court, Senior Judge J. David Roper denied bond, finding Miles posed a danger to the community, is a flight risk and a potential threat to the victim in the case, a 67-year-old man disabled by a heart condition.

Miles was arrested Nov. 30 after exploiting money from his disabled neighbor for nearly a year, Assistant District Attorney Amanda Pennington told the judge Thursday. Miles promised to repay the disabled man when he inherited $350,000 and property. Miles first asked for $75,000, and then he kept going back for more money, often claiming need for medical treatment, Pennington said.

The disabled man was running out of money to pay his own expenses and started selling off his belongings. To keep the ruse of inheriting property going, Miles set up the neighbor with “an attorney” who texted the disabled man about Miles’ property deals, Pennington said. The texts became hostile and bullying, and when the victim told his daughter about the deal, she believed it was a scam, Pennington said.

The daughter made an appointment to meet with the attorney, a meeting Miles tried to ambush, Pennington said. The attorney was adamant she nether knew or worked for Miles.

When the Crimes Against the Vulnerable and Elderly task force executed a search warrant at Miles’ home, they found the phone used to send texts to the disabled neighbor, Pennington said. They also found forged receipts claiming to be from the probate court, she said.

Defense attorney Jared Williams countered that the evidence will prove that Miles and the disabled neighbor were very close, more like father and son than neighbors. The neighbor was helping Miles out of financial trouble, Williams said. While there will be a dispute over the total amount borrowed, Miles wanted to get bond so he can get a job and start paying the neighbor back, Williams said.

Miles’ criminal history includes charges for a 2004 aggravated assault, a 2001 cruelty to children and a 1991 escape.

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Augusta man denied bond in elderly exploitation case

Tim Conway Dementia? Famed Comic Moved Seven Times From Rehab to Hospital

Cedars Sinai Medical Center

Tim Conway, who underwent brain surgery in September, has been moved seven times in 12 weeks between rehabilitation centers and Cedars-Sinai Medical Center, according to papers filed this week by the entertainer’s court-appointed attorney.

Conway is currently being cared for at Windsor Terrace Healthcare Center in Van Nuys, according to Michael Harris’ Tuesday court filing. Conway remains at the center of a dispute between his wife, Charlene, and her stepdaughter over whether he needs to be placed under a conservatorship. Kelly Conway maintains her father suffers from dementia. The actor-comedian turns 85 on Saturday.

Charlene Conway maintains that her husband does not need the protection of a conservatorship, but that if a judge is inclined to find to the contrary, she should serve the role and not her stepdaughter. Trial is scheduled for Friday before Los Angeles Superior Court Judge Robert Wada on whether a permanent conservatorhip should be established and, if so, who should be appointed.

On Sept. 14, Wada rejected Kelly Conway’s petition for a temporary conservatorship, finding that her concerns about her stepmother’s medical decisions regarding her father were moot at the time because he was hospitalized Sept. 3 and underwent brain surgery.

After brain surgery, Conway was released to the Beachwood Post-Acute & Rehab facility in Santa Monica on Oct. 15, but has been back and forth since then to the hospital and Windsor Terrace, according to Harris’ court papers.

“Kelly Conway contends that Windsor Terrace made the mistakes that caused (her father) to require emergency removal to Cedars for surgery and that returning him to Windsor Terrace is wrong…,” Harris states in his court papers.and, if so, who should be appointed.

He said Kelly Conway wants her father returned to the Villas at Topanga Terrace care facility in West Hills, where she believed he was comfortable and getting good care. But Harris said he visited Windsor Terrace and came to a different conclusion about the facility than did Kelly Conway.

“The facility is apparently well-staffed and properly operated with clean and appropriate surroundings,” Harris wrote.

Conway was bed-ridden and unable or unwilling to talk, but his complexion was good and “his eyes were expressive,” Harris stated in his court papers. “In any event, this (court) proceeding involves at its core two women, both of whom are intent on doing what each believes is best for the interests of Mr. Conway.”

Harris recommends that regardless of the outcome of the legal battle, both women should be given regular visits with Conway and a say in his care and where he lives. He said he is hopeful the two sides can resolve their differences.

On Sept. 14, Wada rejected Kelly Conway’s petition for a temporary conservatorship, finding that her concerns about her stepmother’s medical decisions regarding her father were moot at the time because he was hospitalized Sept. 3 and underwent brain surgery.

After brain surgery, Conway was released to the Beachwood Post-Acute & Rehab facility in Santa Monica on Oct. 15, but has been back and forth since then to the hospital and Windsor Terrace, according to Harris’ court papers.

“Kelly Conway contends that Windsor Terrace made the mistakes that caused (her father) to require emergency removal to Cedars for surgery and that returning him to Windsor Terrace is wrong…,” Harris states in his court papers.

Conway was a performer on “The Steve Allen Plymouth Hour” in the 1950s before landing the role of Ensign Parker on the 1960s comedy series “McHale’s Navy.” In the 1970s, he became a cast member on “The Carol Burnett Show.” He also starred as the title character in the “Dorf” comedy films and voiced the character of Barnacle Boy in the animated series “SpongeBob SquarePants.”

In addition to Kelly, Conway and his first wife Mary Anne Dalton had five other children. They divorced in 1978.

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Tim Conway Dementia? Famed Comic Moved Seven Times From Rehab to Hospital

Adam Lopez indicted on additional charge of financial exploitation

SPRINGFIELD, Ill. (WAND) - Springfield School Board Vice President Adam Lopez has now been indicted on an additional charge of financial exploitation of a person with a disability.

Lopez is accused of financial theft during his time with Country Financial. He has been sued by several of his own family members.

A six-count indictment was handed down Wednesday by a Sangamon County Grand Jury.

He remains in the Sangamon County Jail on a $1.5 million bond.

An arraignment for the new indictment is scheduled for Dec. 20 at 10 a.m.

The additional indictment relates to new victims who have reportedly come forward.

It alleges Lopez knowingly took control over property or illegally used the assets totaling more than $50,000 of a person with a disability.

The investigation has been ongoing since September.

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Adam Lopez indicted on additional charge of financial exploitation

Seattle Takes on Elder Abuse as Reported Cases Rise

Mary Lynn Pannen, founder and CEO of Sound Options, has consulted thousands of Washington families on geriatric care for 30 years. Photo courtesy of Sound Options.

As Seattle’s senior population rises, elder abuse is increasingly becoming an issue on city officials and caretakers’ radars. Advocates throughout the nation are calling on states to increase public awareness of elder abuse and for courts to respond to the epidemic.

Federal data obtained by the New England Center for Investigative Reporting showed that adult protective services throughout the country conducted over 713,000 elder-abuse investigations in fiscal year 2017, with nearly a third of the cases identifying victims of abuse or self-neglect. In Washington, reported elder-abuse cases increased from 19,000 in 2012 to 49,000 in 2017.

Although the soaring number of cases concerns Mary Lynn Pannen—founder and CEO of Washington-based Geriatric care management firm Sound Options—she said that the increased reporting is also a result of better data collection. Pannen has seen progress in the state’s response to elder abuse since she worked as the head of a Tacoma-Pierce County Health Department counsel that focused on the issue 35 years ago. “It is a silent crime, because you’ve got frail adults that are living at home for the most part,” said Pannen. “Some of them are unable to handle their own affairs, and they have people that come along their way and take advantage of them.”

Over the past 30 years, Pannen and her staffers at Sound Options have consulted families throughout the Puget Sound region on caring for older adults. Employees at offices in Seattle, Tacoma, and Olympia help caretakers create and execute care plans, work with elder law attorneys, and advocate on behalf of people in hospitals or community facilities. Staffers are trained to be keenly aware of elder-abuse cases, which usually manifest as financial exploitation.

One recent incident that her staffers observed involved the son of a client who gradually extracted money from his mother’s bank account. Other clients can be vulnerable to repeated instances of abuse. For instance, six months ago they were alerted to a case in which a caregiver exploited a client by inviting her boyfriend and animals to live in the house, Pannen shared. The client then hired another caregiver who convinced the client to sell her house and deed it to her. The caregiver then impoverished the homeowner by stealing $200,000 from her, Pannen said. She has also seen instances of neglect, such as when staffers discovered that a husband was withholding food and water from his wife.

Staffers are customarily contacted by elder law attorneys or neighbors who suspect the abuse. Staffers will then travel to the older adults’ homes to conduct assessments and ask the clients about their power of attorney and who has access to their bank account. They’ll look for red flags, such as bruises on the client or a refusal by family members or caretakers to allow the older adults to respond to the staffers’ inquiries. Once they’ve gathered enough information to suspect abuse, staffers will then report it to Adult Protective Services.

“One of the things to prevent abuse is to make sure that we can help de-stress the whole family unit, because caregiving is really hard,” Pannen said. “This is a serious issue and we need to have the public understand that.”

She’s found that abuse often goes unreported because older adults might feel shame or be unaware about the neglect or abuse they have faced at the hands of their own family members or caregivers. Her observation reflects national trends: the 2011 New York State Elder Abuse Prevalence Study estimated that 23.5 cases of abuse go unreported for every reported case.

In response to the epidemic, local agencies have bolstered protections for older adults in recent years. The Seattle Human Services Department’s Aging and Disability Services division (HSD/ADS) seeks to address the widespread issue by working with the Office of the King County Prosecuting Attorney and Adult Protective Services to provide older adults with financial, health, and legal services and safe housing in the face of abuse.

HSD/ADS’ Vulnerable Adult Program was created in 2011 to improve reporting of vulnerable adults by the Seattle Fire Department (SFD) and improve communication between departments that enforce laws and partners that provide senior services. The program consists of a partnership with SFD, Seattle Human Services/Aging and Disability Services, the Seattle Police Department, Adult Protective Services, and community organizations. “By working across departments, the program is one of the first of its kind, has [been] shown to work, and has been successful in getting care and services to vulnerable adults. We respond to an average of 35-45 reports per month by Seattle Fire Department,” HSD spokesperson Meg Olberding wrote.

According to Adult Protective Services’ (APS) data, King County’s efforts are helping increase elder-abuse reporting. APS reported a nearly 50 percent increase over the previous five years in reported allegations of elder abuse in 2014. In 2017, over 11,000 allegations were reported to APS in Region 2, which includes King County, with nearly 30 percent of the cases concerning financial exploitation.
In the future, Pannen hopes that preventative services such as Sound Options and other geriatric-care management firms will be used by families to curb the epidemic.

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Seattle Takes on Elder Abuse as Reported Cases Rise

Guardianship Tracking System now online

Lori Cerato, Elder Law

Pennsylvania’s Supreme Court initiated a Guardianship Tracking System statewide in 2018. Monroe County Court of Common Pleas went online with the system in late October. The GTS is designed for those individuals appointed as a guardian of the person and estate of an incapacitated person to file statutorily-mandated reports with the Clerk of Courts for review by the court.

A court can appoint a guardian after hearing where testimony and evidence establishes that an individual meets the statutory criteria for a finding of incapacity. The legal definition of an “incapacitated person” under 20 PA. C.S. §5502 is “an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.”

A guardian of the estate makes financial decision and a guardian of the person makes health care and placement decisions. The same person may serve as guardian of both person and estate. It’s important to note that a guardian is appointed where an individual has not executed a power of attorney or who has, but the named agent is unable or unwilling to act for some reason.

Once a guardian of the estate is appointed by the court, that guardian must file an inventory within 90 days of the order appointing the guardian identifying all assets of the incapacitated person. With the GTS, the inventory can be filed online. On the anniversary of the order appointing the guardian of the estate, an annual report is filed listing all income and expenses of the incapacitated person over the prior year and stating whether there has been any change in the assets reported in the inventory, such as the sale of an asset, or an asset acquired after the filing of the inventory. Similarly, the guardian of the person must file an annual report summarizing the medical condition of the incapacitated person and indicating how many times the guardian has seen the incapacitated person over the prior year and the duration of the visits. These annual reports are required to be filed every year thereafter.

In the past, the form reports were filed in paper format with the Clerk of Courts. Now, those reports are filed online through the GTS. Although guardians can still file paper reports, the Clerk of Courts charges a fee of $50 per report. There is no charge for filing reports through the GTS.

The GTS ensures that county courts across the commonwealth can track the timely filing of the Inventory and reports. And county courts will review the reports for inconsistencies or oddities that might prompt the court to ask a guardian for clarification or further information.

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Guardianship Tracking System now online

Guardianship: Report Of The Senate Special Committee On The Aging Reveals Need For Reform In Management Of Guardians

Every day, courts across our country appoint guardians to protect the personal and financial interests of those most vulnerable in our society. For individuals who are unable to manage their own affairs, whether it is due to illness, disability, or abuse, guardianship laws allow an organization or an individual to manage their affairs and protect them from harm.

Recently, various guardian abuses have been reported and investigated in several jurisdictions in addition to a probe by the Senate Special Committee on Aging. The allegations include mismanagement of funds, lack of proper notice in court proceedings, and even conversion of assets.  Guardians may be family members, independent attorneys, or non-profit organizations. Guardians are charged with marshalling a ward’s assets and income, and depending on the state, they have varying reporting obligations as to financial and personal transactions.

On Wednesday, the Senate Special Committee on Aging reported its findings after a one-year investigation that included testimony by experts and advocates across the nation. Senator Bob Casey and Senator Susan Collins reported that in several jurisdictions guardians have little oversight and financial abuse exists. According to the Special Committee’s Report, approximately 1.3 million individuals are under guardianship in the United States with $50 billion held in guardianship accounts.

The Senate Committee’s Report recommends mandatory background checks for guardians, increased supervision of guardians, and it also encouraged judges to consider less restrictive means instead of full guardianships. Tailored or limited guardianships, which are  options already available in several jurisdictions, encourage individuals  to retain some powers over their personal and financial affairs. Often this means that an individual will have a guardian for supported decision-making instead of full control being assigned to the guardian. Sometimes a person needs a guardian for financial management, but not for personal needs.

In 2015, news outlets revealed several Nevadan guardianship cases of theft and exploitation. In the Senate’s instant investigation, several Nevadan activists testified before the Senate Special Committee on Aging making reports of notice failures and mismanagement of estates. Nevada has taken some steps in the right direction and it has recently embraced three significant reforms in guardianships, first encouraging the less restrictive alternatives to guardianship which includes encouraging those subjects of the proceedings to voice their views in court. Additionally, Nevadan advocates have moved to create a a Bill of Rights for protected persons in addition to a Guardianship Compliance Office wherein guardians are supervised and surveyed.

As part of their Report, Senators Casey and Collins have introduced The Guardianship Accountability Act that would mandate states to report guardianships in addition to mandatory background check for guardians. The Senate also recommended enhanced monitoring, improved collaboration, and increased uniformity of guardianship laws across the United States.

A significant concern in the Senate Committee’s Report is data collection because many states do not have adequate systems to monitor its fiduciaries. The Report noted several jurisdictions that have developed programs to correct this issue. Of note is the State of Minnesota, which has created an online tracking program for guardians where financial transactions are recorded. Similarly, Pennsylvania is in the process of developing a centralized tracking program. Four Indiana counties have developed a similar program. The Report recommends the increase in data collection by federal agencies in addition to a national resource center for guardians.

For those of us who serve as guardian, it can be an arduous task. The court entrusts a guardian with decision making abilities not only for financial concerns but for personal needs, where the stakes can be life or death. It is not unusual for a guardian to beckon the court for advice as to how to proceed with a ward’s significant health issue or how to better manage a ward’s finances so that better care can be provided. A guardian receives phone calls regarding everything from outstanding bills to flu shot consents to emergency room visits to requests for new clothing.

As noted in the Report, we need to do better for our elderly and disabled population. As professionals, we need to make certain that guardianships are properly granted and that guardians and their wards are supervised. As humans, however, we need to make certain that those close to use have appropriate mechanisms in place to avoid a measure so drastic as the issuance of a guardianship. A power of attorney or health care proxy can potentially deny a guardianship. Often financial abuse is not so apparent and vulnerable adults may be prey to systemic pressures asserted onto them by financial predators who can be relatives, friends, and even professionals. From the Senate Committee Report, it is apparent that we need to improve our legal mechanisms and it appears that thus far certain steps have been taken in the right direction. On a personal level, for the people in our own lives who are at risk — perhaps because they live alone or do not have immediate family — let us check in with them this holiday season as our presence is needed to spot issues, resolve problems, and keep them safe.

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Guardianship: Report Of The Senate Special Committee On The Aging Reveals Need For Reform In Management Of Guardians

A nurse's error at Vanderbilt killed a patient and threw Medicare into jeopardy

Nashville, Tenn. — Eleven months ago, a nurse at Vanderbilt University Medical Center accidentally selected the wrong medicine while attempting to give a patient a routine sedative, injecting the patient with a lethal dose of a paralyzing anesthetic.

The error, which caused the death of an otherwise stable patient, briefly jeopardized the Medicare reimbursement status of one of Nashville’s largest and most prestigious hospitals.

About one fifth of the hospital's revenue comes from Medicare payments, according to the hospital's recent quarterly report, so the error had the potential to throw the hospital's finances into chaos.

However, federal officials announced Thursday they had accepted a corrective plan submitted by Vanderbilt, so the hospital's status was no longer in question.

John Howser, a VUMC spokesman, said the plan was submitted earlier this month and revised as recently as this week. The hospital had already taken “necessary corrective actions," Howser said.

“In reviewing the event at the time it happened, we identified that the error occurred because a staff member had bypassed multiple safety mechanisms that were in place to prevent such errors,” Howser said. “We disclosed the error to the patient’s family as soon as we confirmed that an error had occurred, and immediately took necessary corrective actions (including appropriate personnel actions).”

Versed or vecuronium: A deadly mistake

Neither the patient nor the responsible nurse have been identified in documents released about the accidental death.

An investigation report released by Centers For Medicare and Medicaid Services details how the error was the result of the nurse confusing two medicines because their names started with the same letters.

The report said the patient checked into Vanderbilt on Dec. 24, 2017, suffering from a subdural hematoma — or bleeding of the brain — and vision loss. The patient was sent to the hospital’s radiology department for a full body scan, which involved laying in a large, tubular machine.

The patient expressed concern about laying in the machine because of claustrophobia, the report states, so a doctor prescribed the patient a small dose of Versed, which is a standard anti-anxiety sedative.

The nurse retrieved the medicine from a dispensing cabinet, but withdrew vecuronium, a neuromuscular blocking medication that causes paralysis. The nurse then unknowingly gave the patient the vecuronium, telling the person it was “something to help him/her relax,” according to the investigation report.

The patient then became unresponsive during the scan, suffered cardiac arrest and partial brain death. The patient died three days later after being removed from a breathing machine.

In an interview with investigators, the nurse said the medicine switch occurred because the nurse was struggling to find the Versed in the dispensing cabinet. Unable to locate the medicine, the nurse triggered an “override setting” in the cabinet, which unlocked more powerful medicines.

The nurse then typed the first two letters of the medication’s name — “VE” — into a search field, then selected the “first medication on the list.”

That was vecuronium, not Versed.

According to the investigation report, Vanderbilt also failed the patient by not monitoring the person after the medicine was dispensed.

Nurses are supposed to monitor patients after giving them medication to ensure they don’t have a bad reaction. But in this case, the patient was moved into the scanning machine, so it was not immediately noticed when the person lost consciousness. Medical staff estimated that the patient might have been alone in the scanning machine for 30 minutes before anyone noticed something was wrong.



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A nurse's error at Vanderbilt killed a patient and threw Medicare into jeopardy

Redstone Grandson Seeks Guardian Ad Litem Appointment for Media Mogul

A grandson of Sumner Redstone is asking that a guardian ad litem be named to protect the 95-year-old media mogul’s interests in his legal battles with a former live-in companion, court papers obtained Monday show.

Tyler Korff’s petition, filed last Wednesday in Los Angeles Superior Court, states the guardian ad litem will “safeguard the actual and perceived integrity of the proceedings to all interested parties and the public.”

Korff recommends that either Jackson Chen or Samuel Ingham III be appointed on Redstone’s behalf. Both are probate attorneys and Ingham has represented Britney Spears in her ongoing conservatorship imposed by a judge in 2008 after the singer exhibited bizarre behavior.

Redstone has an open case against Manuela Herzer that seeks to recover assets he alleges she wrongfully extracted from him. The case is set for trial in February 2020, but Redstone’s lawyers are asking for a date in 2019 because of their client’s age.

Herzer’s lawyers filed court papers asking that any decision on rescheduling the trial be delayed until the pending application for the appointment of a guardian ad litem, set for a hearing on Dec. 17, is decided.

Lawyers for the former chairman of CBS and Viacom have argued their client is not incapacitated and that the guardian ad litem’s role would be to protect the billionaire’s interests and argue on his behalf. But Herzer’s lawyers say the application bolsters their contention that Redstone is not competent to control the litigation and that it is actually being directed by his daughter, Shari, a longtime Herzer adversary. Redstone’s lawyers filed court papers stating they support Korff’s guardian ad litem petition.

Korff’s court papers state that Redstone “suffers from a number of health conditions, including most notably a severe speech impairment that limits his ability to communicate verbally.”

Meanwhile a hearing is scheduled Wednesday on a motion by Herzer’s lawyers to take Korff’s deposition in advance of the Dec. 17 hearing.

“Herzer believes that it is urgent that the deposition of Korff be taken prior to the hearing of the (guardian ad litem) petition in order that the underlying basis for the petition can be ascertained and so the relationship between Korff and the two persons nominated to act as GAL (can) be determined,” Herzer’s court papers state.

In addition, there has been no explanation from Korff about how he learned that Redstone wanted a guardian ad litem, nor has evidence been presented that the grandson has recently seen Redstone or communicated with his grandfather, according to Herzer’s court papers.

Redstone’s alleged agreement with his grandson’s petition is not evidence that he has consented to anything or has the capacity to do so, according to Herzer’s court papers, which state that a “deposition is critical to explore these facts.”

Herzer alleges in a separate lawsuit that Shari Redstone convinced the nurses serving her father to turn him against Herzer, who was forced to move out of the billionaire’s home in 2015. In her complaint filed in May 2016, Herzer maintains that the October 2015 revision of the Redstone trust deprived her of her claims to $50 million in cash and to Redstone’s Beverly Park mansion, which is valued at $20 million.

Trial of Herzer’s suit is scheduled for December 2019.

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Redstone Grandson Seeks Guardian Ad Litem Appointment for Media Mogul

Las Vegas personal injury lawyer arrested on at least 39 theft counts, $1.8 million taken

LAS VEGAS (KTNV) — A Las Vegas personal injury lawyer has been arrested in a theft case stretching back years.

Beginning in March, Las Vegas Metropolitan Police Department detectives began to receive reports from multiple victims regarding a local personal injury lawyer. Victims that have to this date filed police reports, all allege that their personal injury attorney, later identified as 53-year-old Matthew Dunkley, misappropriated financial settlements the victims were to receive as a result of their cases in which Dunkley represented them.

The reports indicated that Dunkley, in addition to misappropriating the settlements to the victims, also took money from the insurance companies that were intended to cover the victims’ medical bills. The victims never received their settlements and are now being held personally responsible for the unpaid medical bills.

On Monday, Dunkley was located by detectives with the LVMPD Major Violators Section Repeat Offender Program and taken into custody. He was transported to the Clark County Detention Center where he faces at least 39 counts of theft.

As of his arrest, detectives believe approximately $1.8 million was taken from victims.

Detectives are asking any additional clients of Dunkley Law who may be awaiting settlements and were victimized by this scheme, to contact the LVMPD Theft Crimes Bureau at 702-828-3483.

Clear Counsel Law Group has assumed some of the cases, but these clients may still have been victimized by Dunkley.

In 2017, the Nevada bar asked Clear Counsel to assist Mr. Dunkley's former clients with open legal matters. Clear Counsel Law Group has no other relationship with Mr. Dunkley.

Many of these cases were from personal injury cases that had occurred as far back as 2012, and one of the incidents involved a 5-year-old child who had been the victim of a dog attack. These victims also filed complaints with the State Bar of Nevada.

According to the website of the State Bar of Nevada, Dunkley was suspended from practicing law in October of 2017.

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Las Vegas personal injury lawyer arrested on at least 39 theft counts, $1.8 million taken

Police: VT man stole more than $48K from elderly woman

A Vermont man has been charged with stealing more than $48,000 from an elderly woman over a four-year period after gaining power of attorney of her affairs, police say.

Eric Brigham, 52, of Williamstown, was charged with one count of financial exploitation, according to Newport police.

Police say on Oct. 29, a private investigator working for an 84-year-old woman notified police that her relative, Brigham, had been taking advantage of her by abusing his power of attorney.

An investigation was launched and police discovered that Brigham had been given power of attorney of the woman’s affairs in June 2014, and in December 2014, Brigham allegedly began writing checks out of the victim’s account without her permission.

In February 2015, Brigham obtained checks that had both his name and the victim’s name on them under her account, according to police.

An investigation revealed Brigham used checks and a debit card to withdraw thousands of dollars in funds from the victim’s bank accounts on a regular basis over four years.

With the money, he allegedly purchased an all-terrain vehicle trailer, an enclosed trailer, custom picture frames, furniture, and had work done on his Audi sedan, according to police.

In numerous other instances, police say he wrote out checks to himself for cash or wrote them out under the victim’s name, but rarely gave the victim any of her own money and rarely visited her in the nursing home.

It was also determined that after the victim had moved from her home into the nursing home, Brigham either sold or threw out nearly all of her personal belongings and possessions, rather than putting them in storage and kept the money for himself, according to police.

In total, police say Brigham is believed to have stolen $48,149.11 from the victim and left her with several delinquent credit card bills and more than $20,000 in debt to her nursing home.

Brigham is scheduled to appear in Orleans District Court on Jan. 15.

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Police: VT man stole more than $48K from elderly woman

It's hard to think about, but frail older women in nursing homes get sexually abused too

We don't often think of older women being victims of sexual assault, but such assaults occur in many settings and circumstances, including in nursing homes. Our research, published this week in the journal Legal Medicine, analysed 28 forensic medical examinations of female nursing home residents who had allegedly been victims of sexual assault in Victoria over a 15-year period.

The cases were examined by Clinical Forensic Medicine – a division of the Victorian Institute of Forensic Medicine – between January 1, 2000 and December 31, 2015.

The majority of the alleged victims had some form of cognitive or physical impairment. All 14 perpetrators who were reported were male, half of whom were staff and half other residents. The majority of case reports didn't indicate whether the alleged victim had received treatment for the assault.

The most frequent alleged sexual contact was vaginal contact or penetration. Injuries weren't reported for every case. Where present, they consisted of bruising, skin tears, redness and swelling.

The physical examination was often limited because of the cognitive status (in 38%) of the individuals, physical issues (in 31%), lack of cooperation (23%), and poor examination conditions (23%). Data on alleged victims' behaviour was commonly missing.

These information gaps highlight the difficulty of examination which is essential to a detailed investigation. A better understanding of the context and setting of the assault, which is usually available when younger women are victims, is essential to inform prevention efforts.

Eliminating sexual assault in nursing homes is a major challenge which starts with acknowledging it exists and recognising the scale of this abuse.

Much higher than we think

Sexual assault is considered the most hidden, as well as least acknowledged and reported, form of elder abuse. This makes it difficult to accurately estimate its prevalence.

Prior to 2007, it was estimated there were around 20,000 unreported cases of elder abuse, neglect and exploitation in Victoria. Between 2009-10 and 2014-2015 the published number of sexual assaults among older people rose from around 280 to 430 reports nationally (information about each jurisdiction was not available).

In 2015–2016 The Australian Department of Health was notified of 396 reports of alleged or suspected unlawful sexual contact of residents in nursing homes in Australia.

Based on these statistics, we expected Victoria would have 80-120 sexual assaults of residents reported in nursing homes per year (equating to approximately 1,200 assaults during the study period). The 28 cases reported to the forensic investigation team over a 15 year period suggests under-recognition and under-reporting.

Nursing home residents are particularly vulnerable to sexual assault due to their dependency on caregivers, health problems, and the co-housing of residents, sometimes with potentially dangerous older individuals with sexual assault backgrounds.

Negative stereotypes such as that older people aren't sexual beings, their greater dependency on others, potential divided loyalty to staff members or residents are unique barriers to reporting, detecting, and preventing sexual assault in nursing homes. Despite severe health consequences, efforts to prevent and address elder abuse remain inadequate.

In the majority of cases we examined, signs of general or genital injury were not found. Further, post-assault victim responses, such as agitation, distress and confusion may mirror symptoms of cognitive impairment. This can create difficulties for nursing home staff in distinguishing between the usual behaviour or a response to trauma, such as sexual assault.

Also, nursing home victims of sexual assault tend to be ignored by staff who often don't believe the accusations. Although we could not determine who or what prompted reporting, what is known is that sexual assaults are unlikely to have a witness, though witnesses appear to be crucial to ensure successful prosecution.

Sexual assault, in any setting or age group, is one of the most difficult crimes to prosecute due to the required elements of intent and lack of consent. But this is made all the more complicated when it comes to nursing home residents.

Awareness is crucial

Staff must be aware of the existence of sexual assault in nursing homes. It is their duty as care providers to report alleged or suspected sexual assault in a timely manner. More education, training and research is needed to address the knowledge gaps around incidence, levels of reporting, nature of investigations, responses required to better assist the victim, and the interventions needed to prevent sexual assault.

Without a clear understanding of the alleged victim and incident characteristics, we will struggle to combat sexual assaults in nursing homes. There is an urgent need to better use the existing data held by the the Department of Health to understand the full extent of sexual assault in nursing homes. The Royal Commission is an opportunity to consider the development of tailored policies, staff training and legislation.

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It's hard to think about, but frail older women in nursing homes get sexually abused too

Statutory durable powers a tool to avoid guardianship

A little more than a year ago the Texas Legislature made substantial changes to the law establishing a Statutory Durable Power of Attorney (SDPOA). Given those changes, made effective September 1, 2017, persons who created a SDPOA prior to should review those instruments with their attorneys. As important as it is for those with SDPOAs to revisit them, a more fundamental problem exists concerning SDPOAs: many, if not most, people don’t have a good understanding of what a SDPOA is and why they need one.

A Statutory Durable Power of Attorney is a document which gives a designee power to act as an agent for, and to act in place of, the person creating the POA. The document must be signed by the principal – the one granting the power - and it must be notarized. The instrument grants the agent authority to handle whatever items of business the principal has designated to the agent. Under a SDPOA, the principal may grant all or some of a broad list of powers to handle transactions involving real estate, tangible property, stocks and bonds, commodity and options, banking and other financial institutions, business operating, insurance and annuities, estate, trust and beneficiaries, claims and litigation, personal family and maintenance, federal benefits, retirement plans, tax matters and even digital assets.

The SDPOA is a powerfully effective instrument that can often be used to prevent the necessity of an expensive guardianship proceeding and naming of a guardian of the estate of an incapacitated person. For this reason, all persons should execute a SDPOA for themselves.

In general, persons creating a SDPOA intend to handle their own financial affairs until such time as they are incapacitated or incapable of doing so. However, the SDPOA gives the person creating the SDPOA the option to choose one of the following: (1) “This power of attorney is not affected by subsequent disability or incapacity of the principal” or (2) This power of attorney becomes effective on the disability or incapacity of the principal.”

Option No. 1 (in my opinion, inartfully stated) means that the SDPOA goes into effect immediately, without requiring that a physician designate in writing that the person creating it is disabled or incapacitated. The second option means that the SDPOA does not give the agent the power to act until after the principal has been declared disabled or incapacitated in a writing by a physician.

Whether Option 1 with immediate effectiveness or Option 2 with effectiveness delayed until a doctor establishes disability depends upon the particular circumstances of the principal and the agent being named. With either option, it is imperative that the agent named is a person the principal trusts completely to handle his or her affairs in the principal’s best interest.

Given a trustworthy agent, in most instances, Option 1 is often preferable for these practical reasons:

1. Many, if not most, doctors do not like making the assessment that a person is disabled or incapable of handling his or her affairs;
2. Even when a doctor is willing, the doctor may not be the best person to make that decision, given that often an individual’s decision-making capability can vary from day to day; and
3. Even if the doctor is willing and can make a valid assessment, often action needs to be taken sooner than is possible when the assessment must be secured beforehand.

Even when the SDPOA is made effective at once, the principal can still continue to handle their own affairs until they themselves determine they no longer can do so.

The 2017 version of SDPOAs gives the principal the option of designating whether the agent will receive reasonable compensation for performing the duties required under the SDPOA or will merely be entitled to reimbursement for any expenses incurred in performing those duties.

In my experience, most principals name a spouse or another person who will ultimately inherit from them and choose to have that agent perform without compensation.

The SDPOA form enacted in 2017, makes clear that, unless the principal answers “yes” to specific designations, the agent will not have the authority to: (1) create, amend, revoke or terminate a trust the principal has established during life; (2) create or revise rights of survivorship; (3) create a beneficiary designation; or (4) authorize another person to exercise the authority given under this power of attorney.

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Statutory durable powers a tool to avoid guardianship

Former bank manager accused of stealing $97K from elderly customer

Britt K. Landsperger

CONCORD — A former bank manager was arrested Friday and charged with seven felonies, alleging she stole more than $97,000 from an elderly woman, according to a statement released by New Hampshire Attorney General Gordon J. MacDonald.

Britt K. Landsperger, 46, of Stratham, was charged with seven Class A felony counts of theft by unauthorized taking, according to the statement. The arrest was the result of a joint investigation conducted by the state Attorney General’s Office and the Portsmouth Police Department.

The charges allege that between 2013 and 2018, Landsperger obtained or exercised unauthorized control over money from seven bank accounts belonging to a 68-year-old woman, with a purpose to deprive her thereof, and the value of the money removed from each account exceeded $1,500, according to MacDonald. The total money taken from the accounts exceeded $97,000.

Landsperger was an employee of the bank and the 68-year-old woman was a customer, MacDonald says. The statement did not indicate at which bank the thefts occurred.

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Former bank manager accused of stealing $97K from elderly customer

‘I’m Petitioning … for the Return of My Life’

When Phyllis Funke hit bottom, the court appointed a guardian to prop her up. The remedy is like prison, she said. But “at least in prison you have rights.”

The last weeks that Phyllis Funke could legally make decisions for herself, she climbed into bed, planning to stay there for a while. It was the end of 2016 and she felt disillusioned with the election and wounded by her brother’s recent move to Texas.

She wasn’t considering suicide, she said. She just needed to go under the covers until she could figure out how to deal with the rest of her life, so totally alone.

She had credit cards, a car, friends and financial advisers in Maine and New York.

When a caseworker from Adult Protective Services and a city psychiatrist entered her apartment on March 3, 2017, clipping the security chain because she did not answer the door, she was unraveling emotionally and physically, at risk of becoming homeless or worse. She had no idea what price she would pay for the intervention.

“I’ve been bullied, blackmailed and stripped of the things I need to live, including my money,” she said on a recent afternoon. “Everything has been taken away from me. I have no access to my bank accounts. I don’t have the money to pay for the medications that I’m prescribed. I don’t get mail. I can’t choose my own doctors.”

Ms. Funke had entered the world of adult guardianship.

In a city like New York, where people are used to looking past their neighbors, how often do you see someone and ask yourself, Is that person O.K.? Should I call someone? Maybe they’re older and not moving well. They look adrift in the produce aisle, or you pass their open apartment door and you can’t see the floor for the clutter. You’re a paramedic and they’re refusing to go to the hospital after a bloody fall. It’s your mother or your uncle, and you’re worried about the bills piling up, or the email scams or the sudden loan to a stranger.

You bandage the wound or you promise to check in tomorrow, or you turn away and get on with your life.

Or you call Adult Protective Services. After all, that person needs some sort of protection, doesn’t she?

For Ms. Funke, that call came from the management of her building, after she didn’t respond to court motions to evict her for hoarding.

Ms. Funke, 77, has a master’s degree from Columbia University, a pilot license and — she believes — several hundred thousand dollars in investments, mostly an inheritance from her parents. She is a scuba diver, an avid reader and a global traveler. She has lived in the same cheap apartment for 41 years. If it were up to her, she said, she would be sailing in the Marquesas Islands in French Polynesia right now.

She is also, in the eyes of New York State, an “incapacitated person.” She has been deemed unable to manage her personal needs and property, or to understand the danger she had fallen into.

What started as a complaint about clutter grew to affect every aspect of her existence, including her right to make basic decisions about her life, own a gun or enter into certain legal contracts. Her appointed guardian, a former police officer, said he was unsure whether Ms. Funke had the right to marry.

“I feel as if I have absolutely no rights at all in the country in which I was born, and therefore in the rest of the world,” Ms. Funke said. She compared her situation to being in prison, then thought better of it. “It’s worse than incarceration,” she said. “At least in prison you have rights.”

If you have heard at all about guardianship for older adults, chances are that it has been about a predatory guardian who plunders the estate of a helpless older person. In New York, the poster victim is a Brooklyn judge named John Phillips, whose guardians sold off more than $20 million of his real estate and left him to freeze to death in 2008 in a facility unlicensed to treat people with dementia.

Judge John Phillips built a small real estate empire in Brooklyn, including the Slave Theater. When he was put in guardianship because of dementia, he lost everything — including his life.CreditChester Higgins Jr./The New York Times

Last month, the United States Senate Committee on Aging called for massive reforms in the guardianship system, warning that “unscrupulous guardians” have used their position to get control of vulnerable people and then “liquidate assets and savings for their own personal benefit.”

When I started to look into guardianship, I expected to find many such clear-cut cases. In New York, anyone can petition to have someone declared incapacitated. A judge may then appoint a family member or a third party, usually a lawyer, to be guardian over the person’s physical needs, financial affairs or both. Critics of guardianship say these strangers have open license to raid their wards’ estates.

But as I met families in contested guardianships, more often the conflicts involved sibling infighting, with children battling for control of their aging parents’ assets, crying foul if the courts did not side with them.

A retired banker in Brooklyn, for instance, was placed under guardianship after two of her children accused a third of stealing from her. Now they are all in court.

On Long Island, a son was trying to keep his frail, blind mother at home, battling a daughter and a guardian who wanted to move her to an assisted-living facility. The son blamed his sister and the guardian and the judge and the court evaluator and a real estate broker.

On Manhattan’s Upper West Side, a mentally ill woman who was living with her mother became homeless after the mother’s guardian obtained a court order barring her from the apartment, because he said she was interfering with the mother’s care. These families, too, are in court.

Guardianship was where the breakdowns of modern life — broken families, broken health, broken finances and broken bureaucracy — tumbled together in a system that appeared to bring out the worst in people: secretive, confusing and run by lawyers, with extraordinary powers over vulnerable individuals. It was also the last defense for lives that had come undone.

Then there was Phyllis Funke.

Her letter of introduction began, “Permit me, please, despite the above-noted ‘situation,’ to introduce myself. (Assuming ‘I’ still exist; as I trust you’ll gather from the accompanying ‘tale,’ I’ve an officially appointed guardian who’s doing his darnedest to eradicate ‘me’ — possibly violating New York City and State laws while denying me all my assets, civil rights, and often telephone service).”

Ms. Funke was something different.

She was a journalist and had written freelance articles for The Times, among other places. She said she’d reported from more than 150 countries. Her father, Lewis Funke, had been a drama editor and critic at The Times. Roy Cohn, Senator Joseph McCarthy’s notorious counselor, was a distant relation; Dick Morris, the controversial former political consultant, was her stepbrother.

When the city workers entered her apartment that day, they found her malnourished, dehydrated, unaware that she was under eviction proceedings or that she had not paid the rent in months. There was almost no food in the apartment, and clutter throughout.

As Ms. Funke remembered it, “They asked me who the president was, and I said, do I really have to say that name?”

She could not say how she got in her mental state; maybe it had to do with a lack of sleep. “I was eating less and less,” she recalled later. “I had pasta, and when I ran out of sauce I used Worcestershire sauce. There were cans of tuna but I couldn’t find a can opener, so I used a hammer and an awl.

“The closest I can come is to say I dissociated,” she said. “I checked out.”

In the coming months, while she recuperated in a nursing home, the protective-services agency petitioned the court to declare her incapacitated and place her under guardianship.

In court, the city psychiatrist testified that she suffered from “unspecified bipolar and related disorder, rule out bipolar II disorder, hoarding disorder and unspecified personality disorder.”

John DiGiacomo wanted to keep his mother, Agnes, in her home with him. Transfer to an assisted living building, he said, would kill her. His sister and a guardian disagreed.CreditLily Landes for The New York Times

The designation “rule out” means that further examination was needed to rule out the disorder; according to Ms. Funke, no one ever conducted this examination, and the court records do not indicate any further evaluation. At one court hearing she appeared lucid and persuasive; at the next she was barely coherent.

The judge, Shawn T. Kelly, appointed a lawyer named Gil V. Perez to be her guardian, and suspended the eviction proceedings. It was for her own good.

Nancy Yonge, a friend of Ms. Funke’s from Smith College, saw the case differently. She had visited in late 2016, and found Ms. Funke lucid, planning her next travel adventure.

“She had financial advisers locally and in Maine who were looking after her resources,” Ms. Yonge said. “I do believe this case is all about the money. If she didn’t have money, they wouldn’t be after her this way.”

By the time I visited Ms. Funke this summer, she said that her dissociative state had passed, and that she was “sentient.”

Her apartment: books galore, yarn sticking out of a cabinet door, couch piled with knitting supplies and a laptop, wall art from her travels, room for two people to sit. Nothing outrageous. The next time I returned the papers had doubled, covering the couch and parts of the floor. She was working on her case, she said.

She produced a letter from a psychiatrist declaring her stable and “perfectly competent to handle all her affairs.”

In a country that guarantees the right to life, liberty and the pursuit of happiness, at what point does a person forfeit the right to make bad decisions?

Some numbers would be helpful here: how many people are in guardianship, what assets they have, how many petitions are accepted or rejected. Unfortunately, those numbers do not exist in any meaningful way. Guardianship records are kept separately by each of New York’s 62 counties, with no standardized reporting and no state or city totals. Other states are similar.

“Why are there not systems in place?” asked Pamela Teaster, director of the Center for Gerontology at Virginia Tech University, who is studying New York’s guardianship system. “When you look for a shirt on the internet, your email will be filled with ads for shirts. We can’t track who’s under guardianship and their ages and health status.”

A “best guess” by the National Center for State Courts put the number of people in guardianship nationally at between one million and three million. In Manhattan, a database used by the court lists 2,596 guardianship cases for incapacitated adults, though some of these people may have died.

Other numbers do exist. Since last August, when the process started, Ms. Funke has been billed $16,800 by her court-appointed lawyer; $3,437 by a court evaluator, who deemed her in need of guardianship; $5,000 by her first temporary guardian, Mr. Perez, whose original request for $13,790 was slashed by the judge; at least $9,050 by her current guardian, who took over last November; plus money for a geriatric care manager and home attendants, whom Ms. Funke resents. (All fees must be approved by the judge.) Whenever the various players convened, the meter for Ms. Funke ran at close to $1,000 an hour, for a process she did not want.

When New York enacted its statute governing guardianship for older or frail adults, Article 81 of the Mental Hygiene Law, in 1992 (a different statute covers people with intellectual or developmental disabilities), it was considered a progressive model, requiring guardians to provide the least restrictive conditions possible and consider their wards’ preferences in all decisions.

“It’s a great statute,” said Kristin Booth Glen, a former judge who helped write Article 81 and now advocates for an alternative to guardianship called supported decision making. “And if people actually applied it, we wouldn’t have a lot of people under guardianship. But they don’t. That’s the problem.”

 

Ms. Funke wanted to hire a cleaning service for her clutter. But a geriatric care manager insisted on trained home attendants. Ms. Funke saw the attendants as unwanted intruders.CreditLily Landes for The New York Times

Instead, she said, judges have found it safer to overprotect people, and guardians, who bill their wards at steep hourly rates, have only their own moral incentives to do a good job — their clients are too incapacitated to object, and court monitoring is minimal. How minimal? Though the statute requires guardians to report on their wards’ assets and care within 90 days, a study of cases in 14 New York counties found that it took an average of 237 days, and then 210 days before anyone read it.

This leaves families feeling powerless and uninformed. Bars to entry are low: in New York, aspiring guardians must complete a one-day certification course. A 2010 report by the federal Government Accountability Office found that the courts conducted no background checks, relying on the applicants to disclose any criminal convictions or recent bankruptcies.

Once someone is under guardianship, it is very difficult to get out, because any resistance can be treated as evidence that they are at risk to themselves, so they need protection. For emotionally fragile people, the stress of guardianship — of paying to have your rights transferred to someone else — can make them even more fragile. And if a relative opposes a guardian’s actions, everyone involved — the guardian, lawyers for both the guardian and the ward, the court evaluator and possibly others — can bill the ward for their time.

“It’s total overkill, it’s completely unconstitutional and it’s done every day,” Ms. Glen said. “And it’s done in the name of protection. And the real question is, does it actually protect people? There’s no evidence that it does. When you give one person total power over another person’s life, including the power to isolate that person, you’re setting them up for abuse and neglect and exploitation.”

Guardians and judges complain that the system is vastly underfunded, and that most wards have little or no assets to pay for time-consuming work. Several nonprofit organizations provide guardianship for poor individuals.

Jean Callahan, who oversees low-income guardianship cases as attorney in charge at the Legal Aid Society’s Brooklyn neighborhood office, likened guardianship to nursing homes. “It’s not what anyone would choose, but I’m glad they’re there,” she said. “It’s a blunt instrument, but it does solve problems sometimes.”

Even then, though, it transforms one sort of bad situation — the descent into helplessness — into another, which is a supported death. There are no happy outcomes.

Phyllis Ellen Funke grew up in the Parkchester section of the Bronx and later Mount Vernon, a high-achieving teenager with a lust for travel and occasional bouts of depression. She wanted to be an actress, she said, but turned to journalism after her father threatened to thwart her in order to protect her from the casting couch. “He would never believe there was an editing couch,” she said, alleging a demand for sex from an editor at a major Jewish publication. She mentioned other people who sabotaged her career or wounded her. It was a theme of her conversation.

“She doesn’t have delusions,” her brother, Michael, said. “She can have strong opinions.”

Friends thought she never got over her father’s disapproval. She got writing assignments from prestigious publications but never turned them into an income of more than $5,000 or $6,000 a year.

Her rent, set at 30 percent of her net income, once dropped to $97 a month.

“I remember almost constant complaining about her father,” said Morton Fleischner, a friend from journalism school who went on to be a producer at ABC News.

Ms. Funke traveled and wrote and traveled and wrote. She acquired stuff on her travels and put it in her apartment, and acquired research materials for future trips and put these in her apartment as well. She bought scuba gear from the shop next door. She bought yarn for knitting. In 2004, the building moved to evict her for hoarding, but her parents helped her tidy up.

Bill Lambrecht, 81, a neighbor and friend for more than 30 years, dismissed her clutter as a harmless eccentricity. “Her apartment was always really messy,” he said. “I’d see pennies on the floor, clothes shoved everywhere. She doesn’t hoard things. She just throws things on the floor.”

Mr. Lambrecht accompanied Ms. Funke to a court conference this August. He had been a guardian for an older woman once, and did not think Ms. Funke needed that level of oversight. At the conference, Judge Kelly called Ms. Funke “a brilliant woman,” but he added, on the guardianship question, “That ship has sailed.”

The judge offered to address any problems she was having with her new guardian, Charles Barbuti, adding that this was not the time to reopen the case — for that she had to fill out a form called an Order to Show Cause. He had explained that last time, Judge Kelly said. Ms. Funke began at the beginning. Digressions opened into other digressions. When Judge Kelly stopped her, she simply started again.

“I’m begging you,” Judge Kelly said. “I have spent more time on your case than on any single other case on my docket.” He ended the conference to hear the next case.

Mr. Lambrecht said: “She’s lucid, intelligent and knows how to take care of herself, mostly. She never cuts to the chase on things. But she’s not a bad person in any way. She’s very lonely. She’s what you’d call a noodge.”

Outside the courtroom Ms. Funke snagged Mr. Barbuti.

“I need money to pay for my medication.”

“Send me the bills, I’ll pay them.”

She could not do this, she said, for a simple reason. “I’m not taking the medication.”

It was a standoff. Mr. Barbuti billed $250 an hour. Sheila O’Brien, the geriatric care manager, stood by. She billed $150 an hour, plus $75 an hour for travel time to and from her office in Connecticut.

The judge ordered home-care aides to tackle Ms. Funke’s clutter — twice a week, four hours each time. Ms. Funke wanted to hire a cleaning service instead. Often she refused to allow the home attendants into her apartment. This was seen as noncompliance, further grounds to continue guardianship.

“I want to see this work for you, I really do,” Judge Kelly told her. “I know you don’t want this. Help me make it work.”

“At one point early on I had about $850,000. It’s now gone and going faster. They won’t stop being after me until I’m on Medicaid or worse.”CreditLily Landes for The New York Times

If you made that call to Adult Protective Services about Ms. Funke, did you do the right thing?

The initial intervention brought her back from the edge of malnutrition and dehydration. Judge Kelly stopped the eviction proceedings and ordered help to keep the clutter from returning.

But at what cost?

In Ms. Funke’s view, the process was an assault on her liberty — and in one instance, on her person. Before a court hearing last November, when she refused to get out of bed, the guardian, Gil Perez, forced the issue.

What happened is in dispute.

Ms. Funke said Mr. Perez dragged her out of bed, slammed her head repeatedly against the wall, then dragged her out toward the elevator in her nightgown. At the hearing that day, Judge Kelly noted that she was disheveled and unresponsive. “Ms. Funke,” he said, “you just don’t seem yourself to me today.”

Mr. Perez did not respond to requests for comment. At the hearing he told the judge, “Today, getting her to this court was quite an adventure.” Ms. Funke said nothing.

Nathan Villada, a paramedic who was helping Ms. Funke after her initial crisis, cleaning the apartment and taking her to medical appointments, said Mr. Perez was physical but not violent in the way she described. “This was when Phyllis was doing really, really badly mentally,” Mr. Villada said.

“She was yelling obscenities and it seemed like she was making aggressive movements toward him. So Gil started grabbing her hands. And that just made her more aggressive. Gil pushed her against the bookshelf more as a restraint, not slamming her. My personal preference, I don’t think there’s a necessity to touch someone like that. She started yelling out, ‘Help, help, I’m being raped.’ He pushed her out into the hallway, but he didn’t drag her on the floor.”

Ms. Yonge said Ms. Funke had called her at the time and told her about the episode, describing it as an “assault.” “She was in tears about it,” Ms. Yonge said.

Over time, Ms. Funke began to see this encounter as the root of her problems, and all the court’s interventions as more harmful than helpful. If she hadn’t been roughed up, she wouldn’t have been listless in court that day. If she hadn’t been listless, she would have persuaded the judge that she did not need a guardian.

Ms. Funke also said that a social worker from Adult Protective Services propositioned her and touched her inappropriately, and that Mr. Villada and his girlfriend had stolen from her. Whatever the validity of her charges, the anguish she feels is clearly real.

“I knew nothing really until this package of papers came,” Ms. Funke said. “I believe that that was when I first heard of something called the temporary guardian.”CreditLily Landes for The New York Times

Mr. Barbuti, who succeeded Mr. Perez as her guardian, said he had not looked into her charges. That was police work, he said, and he was no longer in that line. (He was a captain in the Bronx until he retired in 2011.) “I can’t subpoena people,” he said. “Interviewing people and giving Miranda warnings are far beyond the ambit of what I can do.”

It can all be maddening. Claude Pepper, a congressman from Florida, once called guardianship “the most punitive civil penalty that can be levied against an American citizen, with the exception, of course, of the death penalty.”

One day in her apartment, Ms. Funke tried to refuse a scheduled visit from Ms. O’Brien and a home attendant. They came up anyway.

Ms. Funke treated them with open disdain. The attendant pointed to a creased throw rug on the floor. “We talked about this, Phyllis,” she said. Risk of falls. Ms. Funke saw the apartment through different eyes, as a journal of her travels.

“Each rug means something to me,” she said. “Each has a story attached to it.”

Maybe this wasn’t prison, but for Ms. Funke, it was four walls and no easy way out. Was there money left in her investment accounts? Even the court didn’t know. Only the guardian had access to her records.

Ms. Funke said Mr. Barbuti often failed to give her the $150 a week allotted by the court, and that he was late paying bills for her parking garage, car insurance, her phone and internet, and that her supplemental health insurance was expired. In court Mr. Barbuti told the judge that he could not pay some of her bills because she refused to provide them to him.

Some days it seemed like she spent more time fighting with Mr. Barbuti over her bills than it would take to manage them, and they were still a royal mess, she said.

Mr. Barbuti said people had the wrong idea about guardians, that their powers were limited to what the judge gave them. New York also limited runaway fees: if a guardian billed more than $75,000 in a year, he or she could not take any new cases the following year.

“There’s a misconception about guardianship, that somehow or other you become that person’s alter ego,” Mr. Barbuti said. “That’s just not the case. All you can do is what the court tells you you can do.” He added: “I like this kind of work. I feel there’s a chance to help somebody and make a difference in their lives.”

If you were Ms. Funke, shouldn’t you be allowed to withdraw into the covers if you wanted to? And the clutter in your apartment — couldn’t people understand that a writer needs materials around? Even if she were evicted, she had money to start somewhere else. Courts evict people with lots less.

If you were Judge Kelly, what would you do? Would you want to be the judge who left her vulnerable and unprotected?

Mr. Barbuti said the question of guardianship was a complex one.

“People should have the right to make their own decisions, even if you might look at it and I might look at it or a judge might look at it and say that’s not a good decision,” he said. “I don’t think the government should be making decisions like that for people. I think people should be able to make bad decisions. Within bounds.”

What these bounds were, he could not say.

Ms. Funke said she just wanted to get on with her life. As she approached 80, she worried that she might spend the rest of her years fighting to get out of guardianship. So she fought harder.

She remained on probation at her building.

By early December she was still writing her Order to Show Cause. It began, “I’m petitioning, very simply, for the return of my life. The chance to hope again, to dream again. And live the years that remain in a fulfilling and fulfilled manner. Too much has already been destroyed — much improperly; possibly illegally. And primarily — -carelessly, selfishly and pointlessly.”

Fifteen pages later, it still had a long way to go. She was working on it, she said.

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‘I’m Petitioning … for the Return of My Life’