Jack Meagher says his court-appointed guardian, Rebecca Fierle, doesn't respect his wishes, and he doesn't need someone to make decisions for him. Click to Watch Video
An
Orlando guardian accused of filing unauthorized “do not resuscitate”
orders for incapacitated clients is resigning from cases in Seminole
County, soon after she was forced out of nearly 100 in Orange.
Attorneys for professional guardian Rebecca Fierle
appeared before Circuit Judge John D. Galluzzo Friday at an emergency
hearing. It was not immediately clear how many cases Fierle resigned
from because the hearing was closed to the public.
Guardians
are court-appointed decision-makers for minor or incapacitated adults,
known as wards. An investigation released by Florida’s Office of Public
and Professional Guardians determined one of Fierle’s wards, 75-year-old Steven Stryker, died
in a Tampa hospital after staff could not perform life-saving
procedures because of a DNR order filed against his wishes by Fierle.
Another
of Fierle’s wards, 73-year-old Jerry Manczak, brought to the Friday
hearing a copy of a DNR order Fierle filed for him at the Sanford
assisted living facility where he resides.
“She never asked me,” Manczak said. “I didn’t know about it until now.”
Manczak
said he used to have a DNR order in place when he still had all his
legal rights, but Fierle had never spoken to him about it or sought
permission to file one with his current facility. Raymond Branch,
Fierle’s attorney in Manczak’s case, said in an email that he was unable
to comment due to attorney-client privilege.
The
18th Judicial Circuit was alerted to the issue after Circuit Judge
Janet C. Thorpe sought to remove Fierle from nearly 100 Orange County
cases.
In
emails to Galluzzo’s office, an attorney with the Office of Criminal
Conflict and Civil Regional Counsel, said the office spoke with all of
Fierle’s wards with cases in Orange County and some were “quite adamant”
about not wanting a DNR.
Gerald
Manczak, a ward of Rebecca Fierle, said
this "do not resuscitate" order
was filed without
his permission by the professional guardian.
(Monivette Cordeiro / Orlando Sentinel)
“Many of them did not want a DNR,” wrote attorney Polly McIntyre, according to court records.
Neither
Fierle nor her attorney have responded to multiple requests for
comment. At a July 11 hearing before Thorpe that was also closed to the
public, Fierle resigned from all her cases in Orange and Osceola
counties, according to court minutes.
The
hearing before Galluzzo came as courts across Central Florida are
grappling with how to react to the allegations against Fierle, who had
many active cases across multiple jurisdictions.
Michelle
Kennedy, a spokeswoman for the 18th Judicial Circuit, which includes
Seminole and Brevard counties, had earlier in the week said the courts
there had been “alerted to the allegations” against Fierle, which were
under review.
According
to the Clerk of Court & Comptroller, Fierle has been appointed as a
guardian in 82 cases in Seminole County, though some are no longer
active. Some wards were the subject of multiple cases, meaning the total
number of wards Fierle managed in Seminole is less than that figure.
Mark
Weinberg, a spokesperson for the 7th Judicial Circuit, said Tuesday
that Fierle had seven active cases in Volusia County, but was in the
process of resigning. All seven cases are due in court later this month
for status updates, he said.
Fierle also had one case in St. Johns County, but was discharged from it in 2015, Weinberg said.
In
Hillsborough County, a courts spokesperson said he had “no way of
knowing” in which cases Fierle was assigned and doesn’t discuss with
judges any actions they “may or may not be considering.”
In
the 6th Circuit, which serves Pasco and Pinellas counties, spokesperson
Stephen Thompson said Fierle was a guardian in two cases. The judge in
those cases, Sherwood Coleman, appointed a court monitor to investigate
both cases and report any findings, Thompson said.
"The judge will schedule further proceedings to enter any orders necessary to protect the wards,” he said.
In
Polk County, a judicial assistant for Circuit Judge John K. Stargel,
who oversees probate and public health cases, said the judge was made
aware of the situation by the Orlando Sentinel asking about it.
“No
motions have been filed on any of the cases at this time,” said the
judicial assistant, Elizabeth Medina. “The Court will be reviewing the
cases and setting status conferences as appropriate for each case.”
There’s a special horror we feel
when we see people being victimized who can barely defend themselves.
Most often, it’s upon hearing stories of child abuse by the adults who
should be doing their best to protect them. But it’s not just the
youngest among us who fall victim to opportunistic predators. Abuse of
the elderly or infirm commands far less attention in the 24-hour news
cycle, but it happens with alarming frequency.
Those in long-term care facilities are
sometimes ignored by family and at the mercy of staff that are either
overworked or indifferent to their struggles. In this environment abuse
can go unchecked until it is far too late. These are some of the worst
cases of nursing home and elderly abuse in recent memory.
1St. Rita's Nursing Home
When Hurricane Katrina hit St. Bernard
Parish, Louisiana, in August 2005, a mandatory evacuation order was
issued. Other area nursing homes moved their patients, but the owners of
St. Rita's chose not to, fearful that it would put their residents at
risk and confident they were safe on high ground, according to ABC News.
When the levees broke, however, floodwaters came rushing in, drowning
35 residents, many still in their hospital beds or wheelchairs. Owners
Sal and Mabel Mangano were eventually tried on 35 counts of negligent
homicide and 24 counts of cruelty to the elderly or infirm but were
acquitted on all counts in 2007, according to CBS News.
2Luis Gomez
A native of Guatemala, Gomez got a nursing
degree after moving to Waynesville, North Carolina, in the late 1990s.
Over the next 20 years, he would be accused of sexually abusing six
women in three different area facilities, according to CNN.
His victims ranged in age from their 50s to 80s, with most suffering
from long-term debilitating conditions. In 2017, Gomez was found guilty
on two counts of forcible rape, one count of forcible sex offense and
three counts of sexual activity by a custodian, according to local
newspaper The Mountaineer. He was sentenced to 23 years in prison, according to FOX8 in North Carolina.
3Good Samaritan Society Nursing Home
In late 2008, six teenagers who worked at the
Good Samaritan Society Nursing Home in Albert Lea, Minnesota, were
arrested for abusing its residents. Most of the victims suffered from
Alzheimer’s disease or dementia and, according to the Associated Press,
the criminal complaint said the teens would spit in residents’ mouths,
spray them with water and poke and grope their genitals. While the cases
of those under 18 were settled in juvenile court, Brianna Broitzman and
Ashton Larson were charged as adults and sentenced to 180 days in jail
after pleading guilty to three counts each of disorderly conduct by a
caregiver. Both were released after 42 days, according to the Albert Lea Tribune newspaper.
4George Kpingbah
In 2014, a fellow nurse walked in on
76-year-old George Sumo Kpingbah having sex with an 83-year-old
Alzheimer’s patient at Walker Methodist Health Center in Minneapolis,
MN. According to CNN,
it wasn’t the first time sexual abuse complaints had been filed against
Kpingbah, who had previously been suspended by the facility. In 2015,
he was sentenced to eight years in prison and agreed to pay $15 million
dollars to the estate of the rape survivor if he is ever convicted again
of criminal sexual conduct, according to Minneapolis’ Star Tribune.
5Hacienda HealthCare Facility
On Dec. 29, 2018, a 29-year-old-woman gave
birth to a baby boy at Hacienda HealthCare facility in Phoenix, Arizona.
The woman had been in a vegetative state since nearly drowning at the
age of 3, and staff was not even aware she was pregnant, according to
Arizona’s KPHO-TV.
Weeks later, police arrested one of her caregivers, Nathan Sutherland,
36, after a DNA test matched him to the child and charged him with one
count of sexual assault and one count of vulnerable adult abuse,
according to Fox News.
He has pleaded not guilty, and he is currently being held in a Maricopa
County jail on $500,000 cash-only bail, according to the Arizona Republic newspaper.
6Brookshire Assisted Living Facility
When 39-year-old Guettie Belizare went
missing on the job for two hours, her co-workers at a Melbourne,
Florida, assisted living facility went looking for her. She was later
found wearing nothing but her bra in the room of a 69-year-old resident
suffering from dementia, according to the Miami Herald.
The man claimed Belizare had raped him, which was later corroborated by
DNA evidence. She was arrested in April 2019 and charged with abuse of
elderly or disabled adult without great harm and lewd and lascivious
molestation of elderly or disabled adult and released after posting
$10,000 bond. She is currently awaiting trial.
For more harrowing tales of medical malpractice, tune in asOxygen investigates the jaw-dropping cases of murderous doctors, nurses and medical professionals in the new series, “License to Kill” premiering on Sunday, June 23 at 7/6C. Hosted by renowned plastic surgeon Dr. Terry Dubrow (“Botched”),
the series chronicles the harrowing accounts of patients put into
jeopardy by medical professionals’ insidious use of their expertise.
The Consumer Financial Protection Bureau
faulted bank and credit unions today for frequently failing to report
suspected cases of elder financial exploitation directly to the
authorities. The bureau called the lapse a possible missed opportunity
to strengthen prevention and response and issued an advisory urging them to step up reporting.
“More
reporting to the relevant law enforcement agencies can increase
investigation and prosecution,” said the CFPB in an update to a report on the issue it issued earlier this year.
Banks
and credit unions tell police, adult protective services offices or
other first responders in fewer than three out 10 times they suspect
this kind of harm to seniors.
The agency emphasized robust
reporting to adult protective services can increase the likelihood
victims will receive appropriate services.
As of April, 26 states
and the District of Columbia have mandated the reporting of suspected
elder financial exploitation by bankers, credit union employees and
other financial professionals.
In addition, since June 2018, the
federal Senior Safe Act has attempted to take away the fear of financial
institutions and professionals that they could be sued on privacy and
other grounds for releasing personal financial information to
authorities when they fear seniors may be being harmed. The law does
not, however, mandate reporting.
STERLING HEIGHTS, Mich. (WXYZ) — It’s a controversial guardianship
case that’s caught the attention of the Attorney General and the
Michigan Supreme Court.
When the 7 Investigators started
investigating this guardianship case, we interviewed the family involved
and we asked to interview the owner of the guardianship company so we
could tell both sides of the story.
That owner refused to talk to
us, but ever since we first aired this story, the lawyer for the
guardianship company has taken to Twitter and Facebook to make several
public comments about the family in this case.
And because that lawyer is also the mayor of Michigan’s 4th largest city, many of you had questions about his role in this.
“I’m
Michael Taylor, I’m an attorney for Caring Hearts and Executive Care,”
said Sterling Heights Mayor Michael Taylor as he approached 7 Action
News outside a home in Utica where the we had been interviewing members
of the Mitchell and Delbridge families about a controversial
guardianship case.
Marcie Mitchell had been trying to get
guardianship of her dad Bob Mitchell and her step-mom Barb Delbridge,
who suffer from dementia and other health problems.
“I just want my parents back,” said Marcie in May.
Even though Marcie had priority under the law to become her dad’s
guardian, Macomb County Probate Judge Kathryn George said she had “grave
concerns” and instead appointed a company called Caring Hearts Michigan
Inc. as guardian. Caring Hearts then hired Executive Care as caregivers
for Bob and Barb. Both companies are tied to Robert and Cathy Kirk.
And that’s where Michael Taylor comes in: he works for Robert Kirk’s law firm.
“I’d
love to have you come to my office so I can show you everything that’s
been going on,” said Taylor. “We can absolutely do that,” said 7
Investigator Heather Catallo.
Taylor later rescinded that offer,
telling the 7 Investigators that he had to follow his clients wishes and
refused to do an interview with us.
But that did not stop him from making dozens of public Facebook posts and Tweets about the case.
“Hi Facebook, it’s me, Sterling Heights mayor Michael Taylor,” said Taylor during a Facebook Live video.
“It’s unfortunate that the full story is not being reported.”
On
social media Taylor said Marcie’s “neglect is the sole reason that she
did not get appointed” guardian and made frequent comments about Bob and
Barb’s health conditions.
“It’s scary that he’s able to get away
with the statements that he’s made without proving the facts that he has
none of,” said Taylor.
Several of our viewers on Facebook started questioning Taylor’s role in this case.
Denise
writes: “Isn’t being a Mayor of Sterling Heights, and getting involved
as a lawyer for some clients a conflict of interest?”
Elizabeth says, “How in the world can the Mayor be messed up in some scheme like this?”
The
7 Investigators also received emails from viewers asking, “How are we
to be assured that Mr. Taylor has not used his position as mayor to the
advantage of his business associates?”
And this isn’t the first
time some of Mayor Taylor’s 130,000 constituents have questioned his use
of social media. In 2017, Taylor called someone on Facebook an
expletive. Taylor said the guy was a troll who had been harassing him,
but some Sterling Heights residents told us at the time they did not
approve of the language Taylor used.
Mayor Taylor and Sterling Heights officials would not talk to us on camera about Taylor’s recent actions.
But
the city attorney told us in an email that the job of mayor is a part
time position that pays $23,122 a year. That means Michael Taylor is
allowed to have outside employment.
But what about the city’s Ethics Resolution that Taylor supported when it passed back in 2013?
Under the Fitness for Office section, it says “Public servants should
avoid engaging in any conduct, which is likely to bring discredit on
themselves and the governmental bodies in which they serve.”
“If
you look at some of the Facebook postings, you look at some of the
tweets, and you look at some of the language, he could be borderline in
violation of his own resolution,” said former Wayne County Auditor
General Brendan Dunleavy. Dunleavy says Taylor risks discrediting city
hall with his public comments.
“As mayor you set the tone for the
city. People look to you for guidance, people look to you for what’s
acceptable behavior,” said Dunleavy.
The Sterling Heights City
attorney told us that “without knowing the content” of Mayor Taylor’s
social media posts, they aren’t in a position to decide whether they
violate the ethics ordinance.
When the 7 Investigators asked why they haven’t read the public posts, a city spokeswoman did not respond.
Taylor
is no longer the attorney of record for Caring Hearts Michigan. He was
replaced on the case shortly after our initial stories aired.
And for the guardianship case, it was reassigned to a different judge and family members now have guardianship of Bob and Barb.
Here are the questions 7 Action News posed to the Sterling Heights City Attorney, Marc D. Kaszubski, of O’Reilly Rancilio P.C.:
How many hours a week does the mayor work for the city?
"The
City of Sterling Heights operates under a council-manager form of
government wherein the City Council hires a full-time City Manager as
the Chief Administrative Officer to perform and coordinate all
administrative duties of City. As is the case in many council-manager
municipalities across the State, the Mayor of Sterling Heights is a
part-time, elected position. The Mayor’s hours vary, depending on the
number of events attended, Council meeting schedule and length,
conferences attended, office hours, and the like."
What is the mayor’s city salary?
"The
Mayor is compensated at a rate set by the City’s Elected Officials
Compensation Committee (EOCC), an independent commission established in
accordance with State law. For the current fiscal year, being July1,
2019 to June 30, 2020, the EEOC has set the salary for the elected
position of Mayor at $23,122."
Do Mr. Taylor’s social media posts violate the city ethics ordinance?
"The
Mayor does not forfeit the right to comment because he is an elected
official in Sterling Heights, especially on topics unrelated to City
business. Without knowing the content of the specific media posts you
are referring to, we are not in a position to analyze or comment upon
whether there is any violation of the City’s ethics resolution. To the
extent these posts relate your prior reporting on his legal
representation on behalf of the Kirk & Huth law firm, there is no
nexus to his elected official duties."
Does the type of Mr. Taylor’s outside employment violate the ethics ordinance?
"No. Under the council – manager form of government, the Mayor is not a full-time position."
What
safeguards are in place to make sure Mr. Taylor is not approving
contracts or other city business that involve any of the clients of Kirk
and Huth?
"The Mayor does not have unilateral power to
approve any contract on behalf of the City. That power rests with the
entire City Council. With that said, there are standards set forth in
the City Charter, City Code, and Ethics Resolution that safeguard
against any potential conflicts of interest."
How many contracts has the city had with Kirk & Huth since Mayor Taylor has been in office?
"There have been no contracts between the City of Sterling Heights and Kirk & Huth.
In
the interest of full disclosure, however, the City did engage the class
action law firm Edelson PC out of Chicago to pursue litigation against
opioid manufactures. Edelson represents multiple municipalities on this
issue and Kirk & Huth were hired by Edelson to assist them in
representing their other Macomb County clients (Warren, Sterling
Heights, and Harrison Township). Edelson’s contracting directly with
Kirk & Huth to assist them, was fully disclosed to City Council.
Mayor Taylor recused himself from the agenda item, and abstained from
voting on Edelson’s contract out of an abundance of caution."
Members
of Michael Taylor’s law firm, Kirk, Huth, Lange & Badalementi have
donated at least $4,800 to his past campaigns. O’Reilly & Rancilio
employees (Kaszubski’s firm) have also donated at least $3,475 to
Taylor’s campaign in the past as well.
Attorney Robert Menard appearing for a deposition in March 2018. The
deposition was taken as part of a lawsuit involving Menard's former law
partner. A transcript of the deposition is on file with the Milwaukee
County Clerk of Courts. (Photo: Milwaukee County Clerk's office, )
Well-known lawyer Robert Menard was
jailed Monday on charges of stealing at least $700,000 from his ex-law
partner, clients and his uncle, according to a 14-felony count criminal
complaint.
The 43-page complaint by
the Milwaukee County District Attorney's Office lays out elaborate
schemes by Menard, 56, to steal the law firm he had operated with
longtime partner Alan Derzon, embezzle Derzon's retirement account,
pocket the proceeds of a $500,000 insurance settlement won by his
70-year old uncle and then use his uncle's money to pay off other
clients he had ripped off.
His uncle's money was
also used for personal and business expenses such as paying his
children's tuition at Boston College and Drake University, the
complaints charges.
The uncle, Philip Menard, sued
Robert Menard — a lawyer who brags he represents the "average Joe" —
last year and the case was settled for an undisclosed amount in April.
"Attorney
Robert Menard has, for many years, engaged in an extensive pattern of
theft and fraud through his law practice," Kurt Benkley, an assistant
district attorney, charged in the complaint. Benkley wrote that Menard
"routinely stole from clients in a 'rob Peter to pay Paul' pattern of
theft."
The
prosecutor explained that instead of placing settlement checks for
clients in a segregated account, he put the funds "directly into his law
firm business account, spent the proceeds for his own benefit until the
account fell below a zero balance and then many months later paid old
clients with new clients' insurance settlement funds."
The complaint charges Menard with nine counts of embezzlement, four forgery counts and one count of misconduct in public office.
The charges are the latest in a long line of trouble
for Menard, who is also facing a disbarment action filed by the Office
of Lawyer Regulation. The office, which is the policing arm of the state
Supreme Court, charged Menard with 31 counts of misconduct, including
improperly using client cash to cover office and personal expenses.
A hearing is scheduled for next month and the high court will ultimately decide the matter later.
Despite the disbarment complaint, Benkley alleged Menard's illegal activities continued.
"Bank
records show that, despite the pending OLR complaint, defendant Menard
has continued to steal client funds," the complaint states. "Defendant
Menard deposited insurance settlement checks and spent the proceeds
without paying clients."
In 2017, Derzon, his partner of 25 years, sued Menard charging
he stole the downtown law firm that specialized in worker's
compensation claims from Derzon. At the time, each man had a 50%
interest in the firm. The suit also charged that Menard had stolen
Derzon's retirement fund.
The lawsuit is pending,
though the claim that Menard took the law firm and Derzon's retirement
funds are cornerstones of the criminal complaint.
"Menard
converted virtually the entire assets of Derzon & Menard to the
benefit of Menard & Menard," the criminal complaint states,
referring to the Menard-owned firm that set up shop in the same spot as
the predecessor and kept all of the supplies and assorted assets of
Derzon & Menard.
Even the extensive collection
of sports memorabilia were kept by Menard's new firm as was the
fictional "Joe Bob," who was used to promotes the law firms as the
lawyers who represent the "average Joe." Joe Bob became Menard &
Menard's mascot.
Joe Bob, a cartoon character who had been used to advertise the Derzon
& Menard law firm, can now be found on the webpage for Menard &
Menard, albeit still wearing his Derzon & Menard baseball hat. (Photo: Screen shot)
The Journal Sentinel first reported the dispute
between the partners in 2017 and disclosed the DA was looking into the
matter last year.
The criminal complaint lays several schemes, including:
Derzon's retirement funds: The
complaint says that on Aug.15, 2013, Derzon had a retirement balance of
$269,722 when Menard told him the account would be rolled over.
Instead,
the complaint said, Derzon's retirement funds were deposited into the
firm's business account and Menard "rapidly spent Mr. Derzon's
retirement funds."
Expenditures included $22,585
to Boston College for Menard's son's tuition, $1,629 to the Milwaukee
Athletic Club, $5,000 to a woman's account at the Philippines National
Bank, a $774 payment to Time Warner Cable, $12,135 to American Express
and several withdrawals of cash and payments to Menard.
The business account had a negative $8,252 balance by Sept. 20, 2013, the complaint states.
On top of that, Kevin Demet, Derzon's lawyer, said his client has been hit with tax liens on the money he never received.
"It's
brutal," Demet said. "First he loses all of his money in the law firm,
his retirement is stolen and he's hit with a with a
half-million-dollar tax debt."
Uncle Philip Menard'scase:
The elder Menard was struck by a car while mowing his lawn in Florida.
Robert Menard represented him and collected a $500,000 settlement.
Instead
of paying his uncle two-thirds of the settlement, or $333,333, as had
been agreed to, Robert Menard continually made excuses for repeated
delays in distributing the cash. At one point, Robert Menard even argued
that he — not his uncle who was severely injured in the accident — was
entitled to the entire $500,000.
The insurance
settlement was paid to the Menard law firm on July 8, 2014. Two months
later the account had a negative $43, the criminal complaint said. "All
of Philip Menard's settlement funds were gone," the complaint states.
The
complaint said the uncle's money went to a variety of parties,
including $45,000 to Robert Menard, $29,146 for tuition at Boston
College, $15,007 for tuition at Drake University on behalf of a second
Menard child and about $20,000 to credit card companies.
In
at least five cases, the complaint says, his uncle's settlement money
was used to pay other clients after he had stolen settlements meant for
those clients.
That scheme was sometimes furthered by forging a signature, the complaint says.
In
one case, the complaint notes, Menard lied to a client, telling her
that she had won a settlement of $150,000, when he had collected
$250,000 for the client.
Menard
was arrested Monday morning by investigators from the DA's office. He
was being held in Milwaukee County Jail. Bail is expected to be set on
Tuesday.
The complaint notes that the investigation is continuing and additional charges may be forthcoming.
The families of aged care residents have become
demanding and aggressive, with some unwilling to accept their loved one
is dying, an inquiry has been told.
The
aged care royal commission has heard evidence about the importance of
family involvement, but some nursing practitioners say dealing with
relatives can be one of the most challenging parts of their work.
Sandy
Green said family behaviour has dramatically changed since the 1997
introduction of accommodation bonds, which are paid when people go into
residential aged care.
"I have
experienced and observed family members becoming verbally aggressive,
demanding, threatening and unrealistic towards nursing staff and medical
teams in their expectations of their family member's current health
conditions," she said in a statement to the commission.
Ms
Green said residential aged care facilities were more like subacute
hospitals than a home-like environment, given families' demands for
services from a range of specialists such as geriatricians, dietitians
and speech pathologists.
"I'm just finding families are getting angry," she told a hearing in Cairns.
"They're demanding services. They're demanding care. They're demanding treatment a lot quicker."
Ms
Green, who provides nurse practitioner services to residents in aged
care facilities, said family members may not accept their mother or
father has multiple medical conditions and are medically unstable.
"They want us to fix it. And if we say 'I'm sorry, your mother or your father, they're dying', they don't want to accept that."
Consultant
nursing gerontologist Drew Dwyer said families are often the biggest
barrier to providing the best outcomes in care for many stakeholders in
residential care services.
"It's a
simple case in any home you go to, that the families are extremely
demanding and have a higher expectation for the fees and services they
are paying," he said.
Dr Dwyer said
families require more education in the impacts of ageing in order to
understand and accept what is occurring in front of them, when a
relative reaches the end stage of their life.
"There's
a huge gap in what we are not telling or informing society about what
they are about experience, and that is the transition of a large number
of our society who are going to move towards end stage of life very soon
as a cohort of older Australians."
The royal commission's next public hearing, in Mildura in regional
Victoria from July 29, will focus on the needs of family, informal and
unpaid carers for older Australians.
Nearly 200 residents and staff were evacuated from the Voorhees Care and
Rehabilitation Center on Sunday, when its air conditioning system
failed.
By Blake Nelson and Ted Sherman
They
didn’t dial 911 after the air conditioning failed and temperatures
began climbing dangerously high inside a building filled with people in
poor health.
Nobody notified the state Department of Health.
It wasn’t until a visitor finally reported the problem to police, said authorities, that dozens of first responders began arriving to help evacuate more than 100 residents from the Voorhees Care and Rehabilitation Center in Camden County on a steamy Sunday afternoon.
A day after an emergency that saw some
patients moved out of their rooms and taken by ambulance to nearby
nursing homes that could accommodate them — while others were simply
pushed across the street in wheelchairs to a high school serving as
temporary refuge — the situation at the nursing home on Laurel Oak Road
in Voorhees was returning to normal.
But questions remain.
“The
department continues to gather information about the incident,” said a
spokeswoman for the New Jersey Department of Health, who added that the
facility has been “repopulated.”
Nursing
home officials, meanwhile, declined to say why they did not alert
anyone to the crisis, or what went wrong with their air conditioning
system. Inside, though there were portable air conditioner units in
clear view and a worker said many of the lights in the building were off
to try to keep the place cool.
The
nursing home is rated at the bottom for its quality of care, ranked
“much below average,” according to the most recent report by the U.S.
Centers for Medicare & Medicaid Services. That report in April 2018
concluded the facility had failed to maintain a clean and sanitary
environment that was in good repair.
Voorhees
Capt. Carmen Del Palazzo said his department did not get a call from
the nursing home, and first learned there was a problem at about 11:15
a.m. on Sunday from a visitor as the heat wave
that had gripped the state for days sent temperatures outside to triple
digits. More than four hours later, he said about 100 residents and 20
staff were being walked, wheeled and bused to Eastern Regional High
School across the street and placed in a cafeteria. Others were taken
away by ambulance.
Jim Arpino, a captain with the Voorhees
Fire Department, said about 75 police officers, firefighters and
emergency workers from Camden, Burlington and Gloucester counties worked
in shifts during the evacuation.
One
resident was taken from the cafeteria to a hospital because of a medical
emergency, Arpino said, and another on hospice died in the nursing
home, but he said neither situation was heat-related, and that the death
occurred in a room where the air conditioning was working.
The
nursing center sits on a quiet, tree-lined street, next to a facility
for disabled children and not far from a bustling mall.
The
evacuees for the most part were hosted for about four hours at the
adjacent high school. Harold Melleby, Jr., superintendent of the Eastern
Camden County Regional School District, said the cafeteria was
well-cooled and near bathrooms, and he said the school had plenty of
space to house even more people.
Melleby
was not sure if the school had a formal agreement with the nursing home
to house residents, but said he and the staff who showed up Sunday were
happy to help.
“We wanted to be a good neighbor,” he said.
According to state health officials, the department was never notified
by the facility about the deteriorating conditions, and was not involved
in the evacuation.
Nursing home facilities in New Jersey are
required to establish a written heat emergency action plan which
mandates the procedures to be followed if the indoor air temperature is
82 degrees or higher for a continuous period of four hours or longer,
officials said.
Part of those procedures include the notification of the department, they noted.
It is not known how hot the temperatures got inside on Sunday.
Palazzo
believed one of the facility’s three rooftop compressors had failed.
The police spokesman could recall at least one other problem with the
facility’s air conditioning in the past, but he said that had not
prompted an evacuation.
On Monday, the
nursing home — a five-story brick building surrounded by lush trees and
well-manicured lawns — was quiet. An employee watered plants in the back
while workers trickled in and out of the front entrance, walking over
white tile and past upholstered furniture that appeared older, but
clean.
Officials at Voorhees Care and
Rehabilitation would not respond to questions. A woman at the nursing
home’s front desk said the facility’s administrator, Bentzion Friedman,
had no comment. Another later asked a reporter to leave.
Inside
the facility’s lobby, though, it still felt muggy in the early
afternoon. A portable air conditioning unit sat on the floor near the
entrance, an exhaust tube snaking into the ceiling.
One speaker called it the “perfect crime of the 21st Century.”
Another speaker, Dawn Trotto, said, “It’s only going to get worse because of all the baby boomers retiring.”
They
were referring to elder-adult abuse, which was the subject of a
“listening tour” staged Monday by Michigan Attorney General Dana Nessel,
accompanied by two state Supreme Court justices and two lawmakers.
Nessel
is conducting the statewide tour to suggest new laws to address the
increasing financial, physical and emotional abuse on older people from
family members, duplicitous friends or the Probate Court
system. The new laws would emanate from the Michigan Elder Abuse Task
Force Nessel created in March, less than three months after taking
office.
Nessel promised at the fifth tour stop that when the laws
are passed, “We will have made more progress in this area than we have
in the past 30 years."
She pointed out a recent Macomb County case
her office handled is “emblematic” of the problems within the
guardianship/conservatorship system. The case involved the guardianship
of a Utica couple that was given to a Clinton Township company over the
family late last year. The family filed a lawsuit in circuit court and regained control in June.
“I
don’t mean to speak out of turn, but in my opinion that was everything
that is wrong with the system and all the reasons why we need to work so
hard to fix it,” Nessel said.
Nessel was joined by Supreme Court
Justice Richard Bernstein, concurring that guardianships and
conversatorships are granted too easily, out of proportion to their
impact. Someone under a guardian and conservator has less rights than a
criminal prisoner, losing their ability to make medical and financial
decisions, they pointed out.
“There is no more substantial way
that a person really loses their rights in this country then to have a
full guardianship placed over them,” Nessel said. “In many ways it’s
more restrictive than for a person who is convicted of a very serious
crime and placed in the Department of Corrections.
“What we were
seeing is cases where you would see more thought and deliberation put
into deciding whether a person violated a speeding law or
traffic-citation case than you were in a hearing involving a petition
for guardianship.”
During
the two-hour event at the Clinton Township offices of the Macomb
Intermediate School District, 22 people spoke in addition to remarks by
Nessel, Bernstein and Justice Megan Cavanagh.
Speakers described various versions of abuse they either witnessed or have suffered.
Two
people suggested there needs to be mediation or counseling for families
who are fighting in court over issues to help prevent forcing a probate
judge to award the guardianship/conservatorship to a company or lawyer
over a family member.
“Why don’t the courts refer it to an objective third party for mediation between the two families?” a woman said.
Some said more regulation needs to be placed on caretakers who are hired by a guardian or guardianship company.
Multiple
people talked about “isolation” and “retaliation” sometimes practiced
by caretakers. When a caretaker learns about a complaint by their
subject or subject's family, he or she sometimes will retaliate by
limiting or eliminating contact, they said.
“The squeaky wheel gets hurt,” one woman said.
Two people suggested extending mandatory reporting for some professions from child abuse to elder abuse.
Bernstein
questioned a nurse from Oakland County about how guardians charge
clients for their services. She said in her frequent dealings with
attorney guardians she rarely talks to the actual guardian but rather a
secretary – and typically only for a couple of minutes. But the client
gets charged as if the guardian was involved and the charge typically is
listed as a 15-minute or 30-minute call.
Alison
Hirschel, director of the Michigan Elder Justice Initiation, a
nonprofit organization, said afterward the complaints are consistent
with ones she has heard elsewhere.
“I think it was a powerful
setting but reflective of what we’ve seen for years,” she said. “There
are nuances and off-shoots to every issue. There is so much to be done."
She
said a big problem that was mentioned was unlicensed care-taking
facilities. Some elderly people and their families may believe a
residential facility is licensed when it is not.
“We don’t even know how many unlicensed facilities there are,” Hirschel said.
At
the start of the event, Nessel listed other areas the task force will
look at, such as requiring public administrators, who handle cases that
families don’t, to be bonded and certified and meet professional
standards.
The task force is considering a mandatory evidentiary hearing for a judge to award a temporary guardian.
Also
seated at the front table were legislative task force members state
Sens. Paul Wojno, D-Warren, and Michael MacDonald, R-Macomb Township,
who said afterward they will work on the bi-partisan effort to get a
bill package passed.
Attendees included state Rep. Doug Wozniak,
R-Shelby Township, an elder law attorney who said he and a Democratic
representative have sponsored a bill package that includes elder law
reforms.
He said he believes reforms in his bills don’t conflict with those the task force is considering.
The
trio was scheduled to conduct a similar event, Monday afternoon at
Washtenaw Community College in Ann Arbor and Tuesday morning at the
Farmington Community Library.
To report abuse, call 855-444-3911. To file a criminal complaint for abuse, contact your local police department.
The director of the Florida guardianship program has stepped down
amid fallout after a state guardian was accused of filing "do not
resuscitate" orders on behalf of clients without their permission.
Carol Berkowitz, the statewide public guardianship program
director, submitted her resignation to the Department of Elder Affairs
July 12, according to her resignation letter.
Berkowitz did not say in her letter why she was stepping down. However, her resignation comes after an Orange County judge revoked "do not resuscitate" orders
in 98 cases in which the guardian in question, Rebecca Fierle, was
found to have "abused her powers" by filing DNR orders on behalf
of clients without permission from their families.
Under Florida law, a judge appoints guardians for minors and
adults with mental or physical disabilities, allowing them to make
financial and medical decisions.
Fl Dept. of Elder Affairs confirms Exec. Dir. Carol A. Berkowitz resigned from her post at the Office of Public and Professional Guardians July 12th. That is just one day after a 9th Circuit Judge revoked guardianships from almost a hundred cases involving guardian Rebecca Fierle pic.twitter.com/oQsp2KzJ9S
An investigation by the Office of Public and Professional
Guardians determined one of Fierle's wards died in a Tampa hospital
after staff couldn't perform lifesaving procedures following a "do not
resuscitate" order Fierle filed against the ward's wishes.
Records show a guardianship court monitor was appointed this month to investigate claims of abuse.
CITRUS COUNTY, Fla. — A U.S. Navy veteran was cremated after a man
falsely claiming to be his nephew signed off on his cremation and death
certificate, the I-Team uncovered.
Navy veteran Robert Walaconis of Hernando, Florida died June 5, 2018 at 71 years old.
His son and daughter said they found out months later.
They claim items were missing from their father’s home – including a
gun collection – and told the I-Team they were shocked when they
discovered his death certificate listed a nephew named Todd Smith.
But Walaconis doesn’t have a nephew, according to his son, Michael.
“We
went to the health records office and we saw a name on there, a ‘Todd
Smith,’” said Michael. “And I had no idea who that was. My father was an
only child.”
The Florida agency overseeing funeral homes and
cemeteries has now opened an investigation after I-Team Investigator
Kylie McGivern began asking questions about the case.
Robert
Walaconis’ bank also confirmed to the I-Team it has opened a fraud
investigation into why someone changed the contact information for the
phone number and address on his account.
How could this happen?
Michael said that fake nephew also made decisions against his father's wishes.
“He wanted to be buried in Fort Indiantown Gap in Pennsylvania,” said Michael. “I can’t believe this could happen to someone.”
The I-Team wanted to know the same thing.
Mark Downing,
the owner of Downing Funeral Home, said he took Todd Smith at his word
when he signed off on Robert Walaconis’ cremation.
“Todd is the nephew – that’s the paperwork we’re given,” said Downing. “He should’ve told us that there was a son and daughter.”
Florida statute gives close family members priority over funeral decisions.
Downing
said he has performed online searches on Facebook and used other tools
to search for surviving family members, but in this case, Downing said
he had no idea Robert Walaconis had children.
When asked if he
requested identification from Smith, Downing said, “The identification
came from Todd from hospice, the hospitals and everything else that he
was a nephew.”
Hospice: Nephew sought locksmith to open locked chest
Robert Walaconis died after a short time at HPH Hospice in Brooksville, Florida, the I-Team confirmed.
A
spokesperson for the parent company of that facility agreed to an
on-camera interview and then later declined, emailing in a statement
that the facility follows all federal rules, which don’t require it to
question “properly executed forms.”
The I-Team obtained the forms
the hospice facility sent the funeral home. On one form, a hospice nurse
wrote they called his nephew, Todd Smith, who was having a locksmith
open Walaconis’ “locked chest file to find info concerning finances.”
The nurse also wrote Walaconis had not been in contact with his children for 20 years.
But
Michael and his sister told the I-Team that’s not true. The siblings
said they spoke to their father on the phone from time to time. They
also provided emails they traded with him and retirement fund documents
Robert signed, naming his children as beneficiaries.
Michael admits he and his father had a troubled relationship.
“He
was a very good businessman and was a very good citizen,” said Michael.
“But he wasn’t the best at being a father, so, through the years I
wanted to tell him that I forgive him for that… And I didn’t get that.”
As his daughter’s college graduation approached, Michael said he reached out to his dad.
“We
tried to call. The phone was disconnected,” said Michael. “We thought
he was just trying to get some space, which he did over the years. If he
didn’t want to talk to you – he wouldn’t.”
“I called to do a health and welfare check on him and we found that he had passed several months before,” said Michael.
Claims of missing guns
Michael and his sister immediately drove from Pennsylvania to their father’s home in Hernando, Florida.
“We walked into trash, all his financial records poured all over – that was the only thing that was out,” said Michael.
Michael said some of his father’s belongings were gone and his guns were missing.
“He collected antique guns. The last time I saw, he had well over 20 valuable guns,” said Michael.
Michael
and his sister called the Citrus County Sheriff’s Office, which never
opened an investigation into the claims of missing guns. That’s because
Walaconis’ children didn’t know the serial numbers of their father’s
firearms, according to a spokesman for the sheriff’s office.
“If
we had a list, serial numbers or anything that would have actually said,
‘Yes, this object is missing,’ we could research it,” said Special
Operations Sgt. Lee Carey.
According to the report by the
responding deputy, he asked Smith if he had written permission from
Walaconis to take anything from the home.
“…he advised no, but the only things he took was a bed, a chair and a flat screen television,” the deputy wrote in his report.
When
asked if Smith’s response raised any red flags for law enforcement, Lee
said, “At this point, we weren’t able to determine who the property
belonged to, so it becomes a civil matter, that the family must go to
the court system, through probate, to determine.”
Todd Smith’s side of the story
The I-Team reached out to Todd Smith, who agreed to an on-camera interview and said he was close with Walaconis.
“I
mean he was family to us. He really was,” said Smith. “He was at all
our family dinners, his birthday – we celebrated with him, everything.”
The I-Team asked Smith to provide photos, texts or emails that would back up his story, but he did not provide any.
“I
was the one that was there to wipe his butt when he had an accident,
when he was sick and couldn’t get up out of bed,” said Smith. “His kids
weren’t here for the last six and a half years and I’m not trying to
make them out to be bad people or anything, but it happened. And I’m
sorry that it happened this way. I didn’t want to have to make these
decisions.”
When asked why he said he was Robert’s nephew, Todd
said, “I didn’t say that. He is the one who told the nurse at the
hospital that I was his nephew.”
I-Team Investigator Kylie
McGivern asked Smith why he never corrected anyone and signed documents
naming him as the nephew, including his death certificate.
Smith didn’t directly answer that question but said, “I tried to get a hold of his family.”
Smith also told the I-Team he didn’t know anything about the claims of missing guns.
When
asked why people should trust him, Smith said, “I’m a trustworthy
person. I mean I did nothing wrong. I don’t think I did anything wrong.”
Finally, a funeral with military honors
Smith admitted he never picked up Robert Walaconis’ ashes from the funeral home.
His son, Michael, tracked down his father’s remains 10 months
later and finally laid him to rest in a funeral in Pennsylvania –
complete with military funeral honors.
“I’m trying to do the right thing and basically make sure this doesn’t happen to other people,” said Michael.
“HPH
Hospice, as an affiliate of Chapters Health System, is always guided by
the rules and regulations of the Health Insurance Portability and
Accountability Act (HIPAA), which is designed to protect patients'
medical records and other health information provided to health plans,
doctors, hospitals and other healthcare providers. In addition, we
follow the applicable Florida State Statute by honoring the Florida
State Proxy for any necessary signatures with regard to care. There is
nothing in the Federal Medicare Conditions of Participations (COPs) that
would warrant further due diligence in determining next of kin when a
healthcare provider is presented with properly executed forms.
Sometimes
healthcare decisions are made for us when we become incapacitated — a
result of suffering a debilitating stroke, developing dementia or any
other chronic disease. We encourage everyone in the community to take
the time to have thoughtful conversations about your healthcare wishes
and/or write them down as an advanced medical directive, which can
include a living will, a healthcare surrogate designation and an
anatomical donation.
HPH Hospice has always provided the
highest quality care to our patients. We remain committed to offering
compassionate hospice and palliative care to the patients and families
we are privileged to serve.”
Sharon Stone
is back. And after famously serving as amfAR’s Global Campaign Chair
for 15 years, she’s taken on a new role as advocate for brain-aging
diseases that disproportionally affect women.
Only one third of
Alzheimers patients are men, for instance. And don’t even get Stone
started on strokes. “This is why I do it: My mother had a stroke. My
grandmother had a stroke. I had a massive stroke — and a nine-day brain
bleed,” she told Variety at an event she hosted to raise awareness for the Women’s Brain Health Initiative in West Hollywood on Wednesday night.
They say that Hollywood loves a comeback but unfortunately, that has
not been Stone’s experience. “People treated me in a way that was
brutally unkind,” she said. And she wasn’t referring to men (other than
perhaps her ex-husband Phil Bronstein). “From other women in my own
business to the female judge who handled my custody case, I don’t think
anyone grasps how dangerous a stroke is for women and what it takes to
recover — it took me about seven years.”
During that time, Stone suffered insurmountable losses, both
professional and personal: “[From] trying to keep custody of my son to
just functioning — to be able to work at all,” Stone added. “I was so
grateful to [LVMH head and now the second-richest person in the world]
Bernard Arnault, who rescued me by giving me a Dior contract. But I had
to remortgage my house. I lost everything I had. I lost my place in the
business. I was like the hottest movie star, you know?” she said, her
voice trailing off. “It was like Miss Princess Diana and I were so
famous — and she died and I had a stroke. And we were forgotten.”
But what Stone wants people to remember is her potentially
life-saving advice: “if you have a really bad headache, you need to go
to the hospital,” she said. “I didn’t get to the hospital until day
three or four of my stroke. Most people die. I had a 1% chance of living
by the time I got surgery — and they wouldn’t know for a month if I
would live.” At the time, Stone wasn’t even aware of how dire her
chances for survival were. “No one told me — I read it in a magazine,”
she added.
The sister of “Dr. Quinn, Medicine Woman” was another one of the
lucky survivors of a brain aneurysm. “She had a massive headache and
collapsed,” Jane Seymour told Variety. “She
was not expected to live, and they had to close down [the set of] ‘Dr.
Quinn.’ I was by her bedside the whole time. But she managed to relearn
how to walk, talk and she’s good now. We call her the miracle.”
Even though Stone didn’t initially feel any love from the sisterhood, she was certainly surrounded by admirers on this night. Andie MacDowell, Kelly Lynch, Garcelle Beauvais and Rumer Willis were among the actresses who turned out to show their support at celebrity florist Eric Buterbaugh’s
galley. And as far as they’re concerned, Stone is still a hot movie
star. “I’ve known Sharon a long time and she is truly powerful woman,”
Broadway and film producer Paula Wagner told Variety.
“Whatever she undertakes, she does it with great strength and
intelligence and brings awareness to it. So it’s wonderful that she is
bringing this story openly and honestly. She inspires me.”
SAGINAW (WJRT) (7/11/2019) - A Saginaw woman is charged with assaulting an elderly woman at Samaritas Senior Living last year.
Elizabeth Haines, 62, is charged with one
misdemeanor count of assault and battery after she allegedly grabbed the
wheelchair-bound victim's arm forcefully and pinned them to the chair
in April 2018.
The woman allegedly told Haines to
stop, but she continued holding the woman's arms against the wheelchair.
The victim had bruises on her arms afterward, according to prosecutors.
Michigan Attorney General Dana Nessel's
Elder Abuse Task Force investigated the case and filed the charges,
which were announced Thursday. She said restraining nursing home
residents is considered abuse.
“Physical abuse of nursing home
residents is never acceptable, period,” said Nessel. “Most vulnerable
residents are completely dependent on their caregivers for a myriad of
essential daily tasks and when those caregivers become abusers, my
office will step in and hold them accountable.”
Haines was arraigned Thursday in
Saginaw County District Court. She was released from custody after the
hearing on a $7,500 personal recognizance bond.
Credit: Courtesy of Gary WeissFamily in happier times (Ada Vocino, Patricia Femia and Patricia's kids)
The last time Patricia Femia saw her mother, Ada Vocino, was February
14, 2013 — Valentine’s Day. But this was anything but a heartfelt
meeting. The two women were in the Morris County Courthouse in
Morristown, N.J. and were there for war.
Ada Vocino Credit: Courtesy of Gary Weiss
Patricia was Ada’s only child. Until a few months before that day in
court, Ada’s life had revolved around Patricia and her family. They’d
lived together in an apartment Patricia built into her home in 2007, as
Ada — a wartime immigrant — wanted. Previously, Ada helped raise
Patricia’s sons and daughter.
The two women confronted each other in the Superior Court of the
State of New Jersey because Patricia had petitioned to become Ada’s
guardian, believing her mother was incapable of managing her affairs.
They would’ve become among the estimated 1.5 million active guardianship cases in America.
When Guardianship Goes Awry
Sadly, guardianship often goes awry. It did for Patricia and Ada.
Patricia says her mother’s last words to her, spoken in
that courtroom: ‘My lawyers promised me that they would destroy your
family.’
Patricia wanted to be appointed Ada’s guardian because she’d been
growing increasingly anxious about signs of her mother’s decline,
including apparent dementia and numerous auto accidents. In 2011, Ada
failed a written test and lost her license. In February 2012, when Ada
was taken to Chilton Medical Center due to dizziness and fainting, she
threatened to kill herself and her family and was then committed to
Ramapo Ridge Psychiatric Hospital for observation. She was returned to
Chilton and later voluntarily readmitted to Ramapo Ridge. While there, a
doctor diagnosed her as suffering from bipolar disorder and “senile
dementia of the Alzheimer’s type.”
Patricia was especially worried about Ada’s depression and suicide threats.
Once, Patricia found an ice pick in Ada’s room. Her mother also kept a
rope under her bed and had threatened to hang herself. Her bouts of
paranoia terrified Patricia. On top of that, Ada resisted medical care
for serious cardiac and respiratory issues.
But Patricia recalls “frequent temper tantrums and constant mistrust”
eroding their relationship. They were the reason Ada refused to
relinquish control over her affairs to Patricia and deeply resented the
guardianship proceeding.
Her Mother’s Last Words to Her
Patricia says her mother’s last words to her, spoken in that
courtroom: “My lawyers promised me that they would destroy your family.”
In a decision handed down from the bench the next day, Patricia lost
the case in every possible way. Judge Donald Coburn not only denied her
guardianship petition, he slapped Patricia with a $675,000 judgment,
payable to her mom, to unravel years of intermingled finances and
jointly owned assets. An appeal of the judgment was dropped as part of a
settlement. Patricia wound up owing about $310,000 in legal bills.
Ada died, alone and despondent several years later, on October 29, 2016, at 92, weighing only 70 pounds.
Since the trial they hadn’t been in touch; Patricia says her letters
went unanswered, her phone messages weren’t delivered and her visitation
attempts were rebuffed. She learned about her mom’s death in a call
from the funeral home.
Cleaning out her mom’s room after her passing, Patricia didn’t find a
single photo of Ada with her family, just pictures of her mother with
the people who evidently had come to mean most to her at the end of her
life: her lawyers and their families.
‘My Mother Was Stolen Away From My Family’
Patricia sums up what happened this way: “My mother was stolen away
from my family.” Even Patricia’s husband, Bob, — though not a party to
the case — lost his job after a mangled version of the legal warfare hit
the web. “We hit rock bottom at that point,” he recalls.
The question isn’t whether the judge made a right or wrong decision,
but what can the rest of us learn from this family’s nightmare, which
could have happened anywhere.
What advance planning can prevent the kind of torment Patricia and Ada experienced? What do you do when a strong-willed parent insists on managing her own affairs even
when signs of dementia begin to surface? How do you prevent disputes
over money and health care from escalating into a family-severing
nuclear war? If advance planning hasn’t been done and mistakes have been
made, how do you prevent family relationships from disintegrating?
The agony inflicted on both sides of this family saga could have been
thwarted by rudimentary advance planning, according to experts in elder
law. Yet many people fail to prepare adequately for family care and
estate issues and then are forced to endure the consequences.
A Landmark Guardianship Case for the Pain It Caused
Even five years after the legal battle ended, the Ada Vocino case is
still considered something of a landmark among guardianship
professionals —not for establishing any great legal precedents, but for
the pain it caused.
Credit: Courtesy of Gary Weiss
Patricia Femia and her parents on her wedding day
“You sit there and shake your head how things can go that bad that
fast,” says Frederick Paugh, a field investigator with the New Jersey
Long Term Care Ombudsman who examined some of the financial aspects of
the case at the request of Ada’s assisted living facility. “But you know
what? It happens.”
What ended as a descent into legal hell began in Italy as a love story.
When Ada Miniussi was 20 in 1944, she was staying in Rome with an
aunt. She met a staff sergeant with Army Air Force, an Italian-American
from New Jersey named Lawrence Vocino. They were wed in Italy in
September 1945 and settled in Clifton, N.J. He worked for the Veterans
Administration for 42 years. She started out as a seamstress, and then
became a stay-at-home mom after Patricia was born. When Lawrence died in
1988, Ada was 64 and on her own for the first time since Italy.
Patricia was then 28 and lived about a half hour away. She filled in
for her dad by handling her mom’s finances, paying her bills and helping
her find doctors. To keep her mom active, Patricia set Ada up in a
little seamstress business doing alterations from home, helping her with
marketing and pricing. Patricia worked full-time and was starting a
family, so her mom helped with child care, something she loved.
Then, things started to get messy.
Home, Not Sweet, Home
Their relationship was so close that in 1994, Ada decided to move
near Patricia in Kinnelon. Patricia found a lot near the Femia residence
and made sure a house was built to Ada’s specifications. Patricia
financed the purchase of the land and construction of the home (which
cost $207,300) with a home equity loan on the Femia house. The house was
initially bought in the name of Patricia and her husband; it was
subsequently deeded to Ada.
Shortly before completion of the home, Ada put up for sale her condo
in Clifton. At that time, as one of Patricia’s lawyers said in a brief
filed years later, “a verbal agreement existed between Patricia and
[Ada] that upon completion of the [Kinnelon] property and sale of
[Ada’s] condominium, [Ada] would reimburse Patricia and Robert for the
purchase and construction.” The condo sold for $199,000. Ada’s new home
was then transferred to Ada, who wrote checks to Patricia totaling
$190,000.
Ada lived in the home until 2007 and then sold it. Patricia says her
mom promised to use the proceeds to reimburse the Femias for the cost of
constructing her apartment in the “mother/daughter” home the Femias
built.
As Patricia puts it, “We had verbal familial agreements and
commitments, which had been in place for decades because there was
complete trust between us.”
The 5 Financial Mistakes This Family Made
That’s commonplace among families, but also a recipe for disaster if the arrangements become subjected to court scrutiny.
Mistake No. 1 for the family: an oral real estate agreement.
“One of the first things a law student learns in Property 101 is that
oral contracts are void,” says Sally Hurme, an elder law attorney who
has served on the board of the National Guardianship Association.
Whatever you do that involves real estate, experts say, put it in
writing. It doesn’t have to be anything formal or legalistic, just a
letter from mom to adult child, or vice versa, signed and dated by both.
Mistake No. 2 for the family:Parents and adult children should have their own legal advisers for financial transactions, but that didn’t happen here.
There’s a basic reason for this — fairness. Also, if the transactions
come under legal scrutiny, legal representation of all parties will
help everything pass the smell test.
Joseph K. Jones, whose firm Jones, Wolf & Kapas provides estate
planning in New York and New Jersey, points out that legal advice to
both parties, each with a lawyer, reduces any potential future concerns
that the elderly parent was pressured into doing anything — what’s known
as “undue influence.”
Mistake No. 3 for the family: joint ownership of real estate between mother and daughter.
When Ada’s house sold, the $470,000 proceeds were deposited into a bank
account owned jointly by Ada and Patricia with right of survivorship.
If one co-owner died, the other would get the money.
Lawyers take a dim view of joint accounts held by parents and their
adult children. It’s a “really really dangerous maneuver,” says Jones.
For one reason, no matter how innocent the motive in establishing a
joint account, it will be viewed with skepticism if the finances are
called into question, as they were here. Ronald A. Fatoullah, a New York
elder law attorney who is co-chairman of the Alzheimer’s Association
Long Island Chapter, says such arrangements are common, but “in many of
these cases there’s a little bit of undue influence.” (That wasn’t
alleged in the Vocino case.)
Also, a joint account can be jeopardized by poor financial decisions
of either party, and the money is vulnerable to potentially malicious
actions of the other joint owner. If a parent or child grows alienated
from the other, either can empty out the account.
Even if there is no undue influence, a judge may someday decide that
in a case like the Femias, the account belongs to the parent. Jones, who
was asked to review the judge’s ruling and other legal papers in the
Femia case, says that in such situations, “what the law looks at, and
what the judge did correctly, is he looked at who contributed the
money.” Judge Coburn’s ruling was blunt. Addressing Patricia, he said:
“The money is not yours. It’s hers.”
In Spring, 2012, Patricia was looking for an assisted living facility
for Ada and decided on Paragon Village in Hackettstown, N.J. While
filling out the paperwork, it became apparent that Patricia had two
problems: she had no power of attorney to allow her to act on her mom’s
behalf, nor a medical proxy that would have given her the authority to
make medical decisions for Ada. By then, it seemed too late to ask Ada
to sign such legal papers since she had been diagnosed as suffering from
dementia.
Patricia felt she had one alternative route to take care of her
mother: guardianship proceedings. A petition for guardianship was filed
on April 13, 2012, the day Ada was released from Ramapo Ridge and
admitted into Paragon.
The guardianship proceedings turned into an ugly battle. Ada retained
a local lawyer, Robert A. Scirocco, who was later joined by a
court-appointed lawyer, Richard P. Diegnan Jr. (Neither Scirocco,
Diegnan, Patricia’s appellate law firm nor her lawyer at the trial,
Adrienne J. Burke, responded to requests for interviews for this
article.)
Patricia’s attorney had the burden of proof to show that Ada lacked
“capacity” to handle her own affairs. If a person is found to lack
capacity, he or she is declared “incompetent.” The potential for hurt
feelings is obvious.
Patricia testified about her mother’s declining mental state. Two
psychiatrists were called by Patricia’s lawyer and testified that Ada
did not have capacity and needed a guardian. But the judge was openly
skeptical of the testimony of one of the doctors and subjected him to
harsh questioning. He did believe the testimony of witnesses called by
Ada’s lawyers, who said Ada didn’t need a guardian.
The testimony of a psychiatrist at Ramapo, called by Patricia’s
lawyer, was also damaging to Patricia’s case. Although he had diagnosed
Ada as suffering from dementia, he testified that he didn’t believe she
needed a guardian to handle her affairs.
But perhaps the most persuasive witness for the judge was Ada herself.
In a pretrial deposition before the trial, Ada had been composed,
articulate and clearly antagonistic to her daughter. The judge called
Ada “a lovely woman, proud, and clear minded about what she likes and
what she doesn’t like.” The judge accepted Ada’s explanation for her
suicide threats: she didn’t mean to kill herself or harm others. He
concluded that while she was “a little histrionic at times as she fought
for control of her own life,” she was not a danger to herself or
others.
Ada’s lawyer filed a counterclaim, contending that Patricia had
engaged in “conversion” — improper use of funds that belonged to Ada.
The judge agreed.
Although the judge had some kind words about Patricia, he noted, “Ada
wants her independence. And we have a Constitution in this state and
this country and it says, you know, unless there’s a reason, you’re free
even to be foolish. And there is no reason here.”
Mistake No. 5 for the family: Patricia’s bringing the guardianship case.
The videotaped deposition showed that Ada held considerable animus
against Patricia, and that she’d do everything she could to undermine
her daughter’s case. Seething with rage, her eyes narrowing with anger,
she said: “My daughter wanted me to be declared insane and be my
custodian so she can take care of me and do whatever she wants with me.”
Ada went on to deny every aspect of her daughter’s case, from her own
behavior to their intermingled finances.
Also, though there was a diagnosis of dementia, that didn’t make
guardianship a slam dunk. “Just because somebody is in the early stages
of that disease doesn’t mean that they don’t have capacity,” says
Fatoullah.
Kezeli Wold, associate commissioner for Adult Protective Services at
the Texas Department of Children and Family Services, says “one of the
complexities of the whole concept of capacity or competency is that it’s
on a scale. A person can experience early dementia and experience some
memory loss and maybe some mild confusion during certain times of the
day. But that doesn’t necessarily mean that they aren’t able to
comprehend the situation they’re in, the decisions that they’re making
and the choices that they’re making.”
The weakness of one of Patricia’s experts, the doctor cross-examined by the judge, didn’t help her, either.
Guardianship: A Last Resort
The bottom line that a guardianship proceeding is a nuclear weapon,
only to be used as a last resort. And it can blow up in the face of the
person seeking it.
“Guardianship is not something to be entered into lightly by any
stretch of the imagination,” says Stephanie Hunsinger, AARP’s New Jersey
state director.
The end of the guardianship case didn’t end the family’s legal
skirmishing. Patricia filed an appeal but later dropped it, instead
settling with Ada in August 2013. Under the terms of the settlement,
Patricia funded an escrow account for $525,000, from which Ada was to
withdraw $10,000 a month. At the time of her death, the remaining money
was to go to Patricia’s three children.
But the cost of the case can be measured in more than just dollars. The family was, in essence, shattered.
In April 2013, after the trial, a small-town newspaper ran an article
with the fallacious headline, “Kinnelon Couple Faked Alzheimer’s and
Stole $980k From Elderly Mother .” In reality, there was no finding of
theft and the judge didn’t say Patricia made a false claim of
Alzheimer’s. The article also mistakenly said the trial “involved”
Patricia’s husband Robert, and gratuitously mentioned his employer.
The article, distributed statewide on NJ.com,
was later retracted and taken off the web, but by then, the damage had
been done. Bob Femia was fired by his employer, Glatt Air Techniques,
the local affiliate of a multinational company. His former employer’s
attorney wrote that Bob was fired “based upon the potential damage to
[the company’s] reputation” as a result of the publicity generated by
the litigation. Says Femia: “You really have no idea how far south
things can go with these types of situations.”
Although the false article came out of left field, the family
animosity was predictable and is hard to prevent in such situations.
Family Relationships Destroyed
“Guardianship can go very well, in certain circumstances. But I have
seen family relationships destroyed as a result of guardianship
proceedings,” says E. Elizabeth Loewy, formerly chief of the Elder Abuse
Unit of the Manhattan District Attorney’s Office and co-founder of the
EverSafe financial monitoring service.
That’s precisely what happened with Patricia Femia and her mom.
Ada’s relationship with her daughter pretty much evaporated after the
guardianship case commenced, and Ada’s lawyers then became a kind of
substitute family, angering the Femias.
Ada’s last months were spent depressed, seriously ill from multiple
ailments and alone. Her “support network,” Diegnan reported at the time,
consisted of her lawyers and their staffs and families. Patricia says
she tried to visit her mother at Paragon a few times after the trial,
and was told “that she was getting a test done or participating in an
activity or they rang her phone in her room and no one answered or they
would say that she did not want to see any of us (grandkids included).”
An Attempt to Appoint a Temporary Guardian
In July 2016, three months before Ada died from congestive heart
failure, Diegnan applied to the court for appointment of a temporary
guardian. Two psychiatrists found her to have dementia, one describing
it as advanced and accompanied by “progressive neuro cognitive decline.”
Another lawyer appointed by the court interviewed Ada and found her to
be alert and following the news. But she couldn’t remember the name of
one of her grandchildren.
Ada was asked by her new lawyer if she wanted to take care of her own
finances. Possibly, she said. But “she really didn’t want to have to do
it, because she didn’t care. . . . she really didn’t care what happened
to her.”
Moral of the Story
The moral of this story? “It’s hard to repair relationships when
things have gone so far as to go to court,” says Camille Payne, director
of field operations of the Texas Department of Family and Protective
Services.
She suggests that adult children in such situations maintain
communications as best as possible; explain that the legal proceedings
were brought with the best of intentions and try to get friends or
relatives to play peacemaker.
If the adult child feels that the guardianship proceeding was a
mistake, an admission of error may help. But, Payne says, “if the
elderly parent has mental illness, there may be nothing that you can do
to repair whatever their mind thinks you have done to them.”
There were no winners in the “Matter of Ada Vocino, an Alleged
Incapacitated Person,” as it is officially called in New Jersey court
records. Ada may have come out on top, but what she lost — her family —
could not be replaced by her lawyers or the money they were able to get
for her.
