Saturday, February 15, 2020

Federal Court Equates Elder Guardianship to Racketeering

A trio of federal appellate justices affirmed a lower district court decision to deny a probate officer’s request for an award of attorney fees and declared that court appointed guardianship of the elderly can be used as a
http://img.particlenews.com/image.php?url=4OL0C7_0Nyb0cl600
racketeering enterprise.

The 6th Circuit Court of Appeals upheld the Ohio Northern District's decision involving a physician named Dr. Mehdi Saghafi, 89, and his wife Mrs. Fourough Bakhtiar [Saghafi], 85, who was declared incompetent due to dementia and was placed under the control of Guardian of the Estate Zachary Simonoff by a local probate judge. Simonoff was seeking an award for his legal fees but the honorable federal appellate justices Jeffrey Stuart Sutton, Deborah L. Cook and Amul Thapar denied his request.

Instead, the Justices stated in their landmark opinion that they are unconvinced of Probate Court Officer Simonoff’s claim that “[Dr. Mehdi] Saghafi’s legal positions were frivolous.”

Simonoff declined to comment stating in an email, “I am sorry I can't discuss on going litigation.”

The physician husband challenged an order requiring him to pay to Simonoff, the guardian, some $3 million of his pension proceeds held at Franklin Templeton mutual fund company after a divorce was reportedly imposed upon him by the court guardians, enabling the division of some $8 million in joint retirement savings.

“The 6th Circuit ruling confirmed my client’s right to challenge a court order, which may have been obtained through abuses of judicial processes,” said Dr. Saghafi’s attorney Chuck Longo in a telephone interview. “The decision will have far reaching negative implications for guardians and lawyers who improperly use guardianships as criminal enterprises to defraud the elderly and incompetent, which is a violation of the RICO statute.”

The Racketeer Influenced and Corrupt Organizations (RICO) Act was enacted by section 901(a) of the Organized Crime Control Act in 1970 and allows extended criminal penalties to be charged as well as civil causes of action for conduct performed as part of an ongoing criminal organization.
It was the Honorable Lorain County Probate Judge James T. Walther who appointed Simonoff as Mrs. Bakhtiar [Saghafi]’s guardian of the estate.

“Whenever you defy a facially valid court order, you have some explaining to do,” wrote the panel of federal appellate judges in their opinion. “But Saghafi does have an explanation. He maintains that the divorce proceedings were a fraud on the court, a sham. And Ohio-law authorities suggest that a judgment procured by fraud may be void.”

Simonoff sued Dr. Saghafi in federal court and Dr. Saghafi filed a counterclaim, alleging violations of the federal RICO Act.

“Simonoff argues the RICO counterclaim was unreasonable because (he says) a guardianship is not an “enterprise” under the RICO Act,” stated the panel of three judges. “But Simonoff fails to explain why an association that does its dirty work through a guardianship cannot be an enterprise. If anything, the Act’s expansive definition suggests the opposite. Right or wrong, Saghafi’s legal theory was not frivolous.”

At the core of the legal dispute is Dr. Saghafi’s estranged daughter Jaleh Presutto, who was allegedly removed and re-appointed as guardian on multiple occasions by Judge Walther and in May 2018 pleaded guilty to multiple felonies allegedly.

“To some, this might mark [Saghafi] as a sore loser bent on delay and vexation but others might see the distress and indignation of an elderly man who believed — maybe rightly, maybe wrongly, but at least sincerely — that his daughter and her lawyers had teamed up to loot him by taking ruthless advantage of an old woman’s dementia and duping the Ohio courts,” state the appellate justices in their decision. “The district court saw the latter.”

As previously reported in Pacer Monitor News, the Saghafi litigation is one among many complaints across the country that are alleging fraud in court-appointed adult guardianships of the elderly and people with disabilities, which are designed to help them manage their lives. Accusations also include cruelty, neglect, starvation, isolation from family members, sexual abuse, over medication, financial exploitation and violation of constitutional rights.

Dr. Saghafi is continuing his litigation in the Cuyahoga County Court of Common Pleas before the Honorable Judge Sherrie Miday. Discovery is scheduled to conclude in May.

Full Article & Source:
Federal Court Equates Elder Guardianship to Racketeering

NJ man died after nursing home sent him on 3-hour Uber ride, widow says

The widow of an Ocean County man is suing a Pennsylvania senior-living facility, accusing it of negligence and wrongful death for sending an 81-year-old patient on a nearly three-hour Uber ride home across state lines in 2018, during which he suffered severe medical emergencies.

According to the federal lawsuit, Eugene Hamill moved into Twin Cedars residential facility on July 6, 2018. Hamill had multiple serious health conditions, including bone cancer and degenerative joint disease, and was required to wear a cardiac life vest "due to cardiac complications."

The lawsuit names former Twin Cedars administrator Tamara Singer as a co-defendant, making the claim that Singer was the person who discharged Hamill without providing his wife with advance notice.

On September 11, 2018, Hamill was discharged, put into a ride share vehicle and sent from the living facility in Pike County to his family's residence in Toms River, the lawsuit says.

Over the course of the ride, the lawsuit said Hamill began vomiting and eventually became unresponsive.

The complaint does not explain whether the Uber driver had sought earlier medical attention, but said that Hamill had suffered both a stroke and heart attack and required EMS transport to Barnabas Health Community Medical Center, where he was intubated, placed on a ventilator, and admitted to the Intensive Care Unit.

Hamill was then transferred to a nursing facility, where he remained until his death on Sept. 26, 2019, a day before he turned 83.

His wife of 63 years, Jeanne Hamill, filed the lawsuit in U.S. District Court in Scranton, Pennsylvania, on Monday.

The Pennsylvania Department of Human Services determined that Hamill was a "victim of neglect due to the unsafe discharge," after a Sept. 13, 2018 inspection based on a complaint regarding Hamill.

Twin Cedars had its license revoked in December 2018 for the failure to provide a 30-day discharge notice, and the facility was then issued a provisional license.

On written notice of the violation, Singer said she disagreed with the findings, as the situation was very "complex, with many different parties involved and their abandonment of this resident."

Full Article & Source:
NJ man died after nursing home sent him on 3-hour Uber ride, widow say

What Remains When Dementia Makes Everything Else Fade

by  Laury Jeanneret

I said goodbye to my mother in May this year, although of course I had been saying goodbye to her long before the day her body finally caught up with her mind. My long goodbye with mum began 12 years ago, with the prodromal signs of emerging Alzheimer’s disease. She was 50 when it started. I had been noticing for some time that she had become repetitive, that she had started to have anxiety, which is something I had never seen from my mum before.

In 2011, mum told me that she was worried about her memory, she said that she was finding it increasingly difficult to remember things that had happened only moments before. She asked me if I thought she might have Alzheimer’s. Her mother had it, and all her maternal aunts had it, and the family often joked that memory problems only seemed to run down the female line of our family. I knew nothing about dementia then, but I did a little research and found that though it is common, this is usually post the age of 65. At that time, my mum was only 54, so I told her she was worrying about nothing, that it was probably stress, and that it would be highly unusual if she had dementia at her age because it was so rare.

Fast forward three years and I sat in a neurologist’s office with her, holding her hand while the doctor delivered the news that she did indeed have early-onset Alzheimer’s disease. Mum cried and hugged me, but of course she had already known. Mum always knew best.

Eventually the shock wore off and mum, fiercely independent as she was, began to live around her diagnosis. Much like you do in pregnancy, you make adaptations to meet new physical frailties and demands. For years our lives became about Post-it notes and memory aids. And as more of her cognition began to slip away, we coped. We got her a bus pass after she had forgotten where she’d parked for the hundredth time, I batch-cooked on my days off and took Tupperware containers for her with days of the week on, so she didn’t have to cook. We got labeled pill dispensers so she’d remember to take her medication.

Even though we were living upside down and back to front, even though we had switched roles, as mum became the child and I the parent, we thought we were, to some degree, winning. But that is where dementia catches you off guard, for so long mum managed, finding creative ways to live with her memory issues that, ironically, it was almost as if we forgot she had it. Because as a family we adapted, mum’s dementia was the thing we lived around. And that’s the thing, people with dementia find so many ways to live around their deficits, that for so long, though life is altered from what it once was, it is still essentially the same. Until the day that it isn’t. Mum plateaued for so many years, retaining her autonomy, that when the decline came, it floored me. It was as if we were meandering along and then, without warning, we just fell off a cliff.

Eventually the day came that I had to make the decision to put mum in residential care, she had become increasingly impaired to the point it was no longer safe for her to live at home. She had forgotten how to use the shower, her oven had dust on it – she had forgotten how to use it, and most often would forget to eat. I put in a hot meals service to try and navigate this issue, but mum would either be out when they delivered her food, or she would place the foil containers on the side and forget all about them. She would wander constantly and then get lost, she took to withdrawing thousands of pounds from her bank account with her pin number written on the back of the card. I would finish work and have 15 missed calls from her neighbors telling me that she, again, had been brought home by a member of the public, completely disorientated.

The day I took her to the care home I had to lie to get her there, tell her we were just popping to see a friend, and then when the door closed I had to tell her she wouldn’t be leaving with me. It broke my heart, seeing her face, she looked so out of place, at least 20 years the junior of everyone else there, and from there we embarked on a new journey. One that involved 24-hour care, daily medication rounds, and mum becoming utterly lost in the fog of her own mind. And this is what shocked me about Alzheimer’s, because until that point I had just thought people with dementia were a bit forgetful, it didn’t sink in until that point the full horror show that watching a loved one with this cruel, insidious disease actually entailed.

In time mum forgot who I was, and would ask me when I went to see her if I had seen her daughter. Sometimes she’d call me mum, I came to learn that though she had no concept I was her daughter, she did know me to be familiar, and safe. As mum stood on the precipice of the steep descent of final-stage Alzheimer’s she became increasingly fearful and aggressive, she began to hallucinate, she would crawl on her hands and knees under tables in search of the demons only she could see. And she would wander, marching around day and night, in circuits around and around the care home, trying all the doors, babbling to herself. Most often I would spend my visits in tears that I tried not to let her see.

In the months leading up to her death the wandering stopped as she forgot how to walk, and with increased stasis came pressure sores. She could no longer feed herself, and would instead require feeding by staff. It was not just a case of forgetting what certain food were for, she could no longer work out how to eat, having no concept of what a knife or fork was even for. Her word-finding ability became non-existent, words failed her, she no longer knew how to talk, and communication became more and more difficult. Eventually, as her body finally failed her she became bed-bound, and I witnessed Alzheimer’s parting shot, she lost the ability to swallow. And when you can’t swallow, you can’t eat. I had no idea that Alzheimer’s would cause such physical devastation on my vibrant, youthful mum. Why would I? In some ways I am thankful that I didn’t know the destination until I arrived at that place.

My mum died on May 5, 2019. She had just turned 62. I was with her when she exhaled for the final time, telling her I loved her, and that she wasn’t alone. Telling her how proud I was of her, and how brave she had been. I don’t know if she heard me, but I feel like she did, because she was squeezing my hand right until the end. We went the distance together, her and I, from my beginning to her ending, and there was no other place I would have been at that moment, then making sure that my courageous mum left this Earth knowing that she was loved. Alzheimer’s is a rollercoaster, there are surprises at every turn. Things you have no concept that you would ever know, it is the steepest of learning curves, delivering changes and challenges at every turn.

But there is also something else, something that people embarking on this journey need to know. Some things are outside of our cognition — even when memory fails, selfhood remains. That same independent spirit that my mother had when she was well, also manifested in dementia. In the way she marched around the nursing home, in the way she would get cross when the nurses tried to give her personal care, and in the way she would nurse baby dolls with such care and attention. Always, always, mum was a free spirit. Always, she was a mother, and that didn’t stop with the onset of Alzheimer’s, because some things are instinctive. Some things are so deeply engrained into us that they are beyond the realms of mental capacity, or cognitive ability.

People like to pathologize dementia — they talk about how the person “dies” before they are actually dead. And in some ways that is true, the coherent version of the person you knew morphs into someone different. But this different person, the person they become, is still woven together with the essence of who they were. Their core is still there. Having seen my mother through every stage of the condition which eventually claimed her life, I know for certain that her selfhood remained. Even when words failed her. Even when mobility was lost. Even when the world made less and less sense to her. She was still Jacquelyn. Still mum. Brave, fiery, resilient mum. Before mum lost the ability to talk, I was visiting her one day and told her I loved her, she whispered back, “Me love you too. You’re my little girl.” And that is what is left when all else begins to fade. Love. Love is what remains.

Full Article & Source:
What Remains When Dementia Makes Everything Else Fade

Friday, February 14, 2020

A 95-year-old woman was swindled out of nearly $18,000. Local towns rallied and got her money back.

Barbara Hinckley meets former governor John Baldacci shortly before the spaghetti dinner fundraiser that he organized in her honor. (Barbara Hinckley meets former governor John Baldacci D shortly before the spaghetti dinner fundraiser that he organized in her honor.)
By Cathy Free

After a con man swindled her out of nearly $18,000 in savings last year, 95-year-old Barbara Hinckley figured she would never be able to replace what she lost.

“When I realized I'd been scammed, I kept telling myself that I was stupid to have fallen for it,” said Hinckley, who lives in Auburn, Maine. “In the end, all I had left in my account was $8.75. My goodness, I should have known better. It was a nightmare."

Hinckley considers herself lucky, though. Thanks to the kindness of friends, neighbors and strangers who rallied and held a spaghetti dinner earlier this month to replace her lost savings, her account was boosted by $18,000. A grateful Hinckley has a message for others who fall victim to scam artists: “Don’t be embarrassed or ashamed — tell somebody,” she said. “By talking about it, you might help prevent it from happening to somebody else.”

Hinckley still drives, and, until recently, she made regular trips to the gym. She has lived on her own for the past four decades.

“I never dreamed that something like this would happen to me,” she said.

For the past 15 years, she had entered the Publishers Clearing House sweepstakes, she said, hoping someday she might hit the jackpot and get a phone call telling her she was the grand-prize winner.

On July 9, Hinckley was elated to pick up her phone and hear a man identify himself as “Dave Sayer” with the Publishers Clearing House Prize Patrol. He told Hinckley that she had won second place in the sweepstakes, entitling her to $2.5 million and a luxury Mercedes sedan.

More than 400 people from Auburn, Maine, and surrounding towns turned out for the fundraiser to replace Barbara Hinckley's stolen savings. (Steve Collins)
More than 400 people from Auburn, Maine, and surrounding towns turned out for the fundraiser to replace Barbara Hinckley's stolen savings. (Steve Collins)
“I was thrilled; it all seemed very real,” Hinckley said. “He sounded educated, and he had a nice voice. He said there were some procedures that needed to be followed to get me my money and that he’d be back in touch. He also told me not to tell anybody that I was the winner until I’d been awarded my money."

“Sayer” — the con man used the name of the real prize announcer — began calling Hinckley regularly, she said, and, after the fourth call, he told her there were some fees associated with her prize winnings.

“Because they were based in New York, he said that authorization needed to happen in Maine before I received my money, and there were fees with that,” Hinckley recalled. “He told me to simply keep track of my receipts and I’d eventually be reimbursed for the fees. He made it all sound very logical."

Soon, the man was calling six or seven times a day to check on her health, ask what she had for dinner and make sure she had taken her medication, Hinckley said.

“He was very clever. He acted like he genuinely cared,” she said. “He’d assure me that I’d be getting my check soon. But there was usually another fee of some kind.”

A few hundred here, a couple thousand there, and it wasn’t long before her life savings was depleted.

Finally, in September, when her grandson realized something was up, Hinckley contacted authorities, but it was too late.

“I just wasn’t up on what to look for and that made me vulnerable to a scammer,” she said. “I didn’t see the red flags, and I was very disappointed in myself."

Hoping to help other seniors, Hinckley decided to go public with her story and gave an interview to a reporter for the Lewiston Sun Journal. People were outraged by what happened to her, she said, including John Baldacci, Maine’s governor from 2003 to 2011, and now an adviser for the Pierce Atwood law firm in Portland.

“Some people at the law office brought it to my attention and said, ‘We need to do something to help this woman,’ and I agreed,” Baldacci said. “My family ran an Italian restaurant for a long time in Bangor, and I’d been doing spaghetti fundraisers off and on for years. So I called Barbara and asked if I could hold one for her to help get her money back.”

On Jan. 8, more than 400 people paid $5 each to attend the fundraiser at Auburn Middle School, loading their plates with spaghetti made from Baldacci’s family recipe, as well as salad, rolls and chocolate cupcakes. Most people gave more than $5, Baldacci said, with some writing checks for more than $1,000.

“Barbara is such a sweetheart; she’s like everybody’s grandmother,” he said. “Seeing how everyone came together to help was so heartwarming. In Maine, we take the shirts off our backs to help those in need."

Baldacci stirs noodles for the spaghetti dinner benefiting Hinckley earlier this month. (Steve Collins)
Baldacci stirs noodles for the spaghetti dinner benefiting Hinckley earlier this month. (Steve Collins)
At the dinner, presentations were given by law enforcement, bankers and AARP representatives on how to spot potential scams and avoid getting conned.

“It’s the most disgusting thing. People who prey on seniors are the lowest form of life,” Baldacci said. “We wanted to make it a teachable moment and let people know that this is a common problem. Nobody has to feel alone.”

Hinckley said she discovered at the dinner that she has more friends than she realized.

“People have been absolutely wonderful to me,” she said. “I even received a check from somebody in Alaska. Can you imagine? Alaska!"

Addressing the crowd that had turned out for spaghetti in the school cafeteria, she spoke from the heart with the first thing that came to mind: “Thank you, thank you, thank you."

Full Article & Source:
A 95-year-old woman was swindled out of nearly $18,000. Local towns rallied and got her money back.

This 104-Year-old Veteran Who Never Before Celebrated Valentine’s Day Gets 70,000 Love Letters

By McKinley Corbley

A 104-year-old United States Marine veteran who has never celebrated Valentine’s Day before has been left dumbfounded by a sudden deluge of love letters pouring into his mailbox.

William White—‘Major Bill’ as he is now known to the internet—was awarded a Purple Heart after he fought at Iwo Jima during World War II, and he served a total of 35 years active duty. He now lives at an assisted living facility in Stockton, California where he is a beloved member of the retirement community.

One of his admirers, a fellow resident, launched a social media campaign called “Operation Valentine” recruiting friends, family members, and strangers to send Valentine’s Day cards to White, hoping to get 100 mailed.

Even when White’s wife of 42 years was alive, he says they never exchanged cards or celebrated the Hallmark holiday.

So imagine his surprise when he was flooded with more than 70,000 love letters, greeting cards, and well wishes from all 50 states and several foreign countries.

“It’s just too fantastic,” White told Reuters. “It’s something I’ve never heard of or seen. All of a sudden here, like a ton of bricks. I’m sort of speechless.”



Full Article & Source:
This 104-Year-old Veteran Who Never Before Celebrated Valentine’s Day Gets 70,000 Love Letters

Nursing Home and Assisted Living Activities

Anthony Cirillo

At the heart of any nursing or assisted living home is the activity program it has for residents. It is an integral part of the cultural change movement and central to person-centered care. It is essential for resident quality of life. Nursing Home activities are governed by federal regulations called F-Tags. While Assisted Living activities are not as highly regulated, many facilities emulate the standards set for nursing homes. Here is a primer on nursing home and assisted living activities that can help both professionals and family caregivers understand the expectations and responsibilities associated with a quality activity program.

 

F-Tag and Implication


F-Tag 248 states that ”the facility must provide for an ongoing program of activities designed to meet, in accordance with the comprehensive assessment, the interests and the physical, mental, and psycho-social well-being of each resident.”

The intent is that:
  • The facility identifies each resident's interests and needs.
  • The facility involves the resident in an ongoing program of activities that is designed to appeal to his or her interests and to enhance the resident's well-being.

 

More Than Just the Initial Assessment


The resident assessment begins to crack the surface of understanding what activities they could be interested in participating. But really knowing the resident goes beyond that.
  • Involve the family to understand the resident’s interests.
  • Do a "social history" of the person's life soon after intake. Build activities around them.
  • See other staff as a resource. Aides are with residents in their rooms and have a chance to talk to them at different times. Find out what they know about the resident’s interests. And remember an activity does not just mean a group activity. It can take place in a room and be administered by any staff member.
  • Visit the residents in their rooms and look at their photos and other display objects, and use those things as a starting point for a conversation about interests.
  • Ask them the things they have done in their life; what they are still hoping to do; something they would like to try again.

 

Beyond Bingo


The stereotype of activities in elder care homes is playing bingo and watching television. Of course, some progress has been made on the PR front as Wii games in nursing homes have become big media stories.
"F-Tag 248 stipulates that activities should be relevant to the specific needs, interests, culture, background, etc. of the individual for whom they are developed."

In research by the Centers for Medicare and Medicaid Services (CMS), residents reported that independence and a positive self-image were central to their well-being. They want a choice of activities and “activities that amount to something."
  • Many female residents were homemakers. Folding laundry, doing dishes, sweeping, setting the table, and ironing. These are tasks that many residents can still do with assistance.
  • Elderly male residents kept everything working around the house. Let them help. Give them something to take apart and fix. They want to feel like they are contributing.
  • Meals become central for many residents. Let them help plan your menu. Ask them to share recipes.
  • Gardening and doing yard work may have been important. Let them plant a small garden.
  • Let them tell you stories about the people in the pictures they have brought with them.

 

Other Considerations


Even severely limited residents can have one-to-one activities such as talking to the resident, reading to the resident about prior interests, or applying lotion while stroking the resident’s hands or feet.

Activities can occur at any time, are not limited to formal activities being provided only by activities staff, and can include activities provided by other facility staff, volunteers, visitors, residents, and family members.

CMS also considers these items when evaluating the activity program.
  • Medication administration, to the extent possible, should not interfere with the resident’s ability to participate in an activity.
  • Residents should be notified of preferred activities.
  • Transport should be provided for residents to and from activities.
  • Functional assistance (such as toileting and eating assistance) needs to be provided.
  • Needed supplies or adaptations, such as setting up adaptive equipment need to be considered.

 

Stretching and Reaching


Encouraging and supporting the development of new interests, hobbies, and skills is encouraged and well as connecting with the community through places of worship, veterans’ groups, volunteer groups, support groups, and wellness groups.

 

F-249, The Activity Professional


F-Tag 249 states that ”the activities program must be directed by a qualified professional wh (i) Is a qualified therapeutic recreation specialist or an activities professional who--(A) Is licensed or registered, if applicable, by the State in which practicing; and

(B) Is eligible for certification as a therapeutic recreation specialist or as an activities professional by a recognized accrediting body; or

(ii) Has 2 years of experience in a social or recreational program within the last 5 years, 1 of which was full-time in a patient activities program in a health care setting; or (iii) Is a qualified occupational therapist or occupational therapy assistant; or (iv) Has completed a training course approved by the State.

The intent of this regulation is to ensure that the activities program is directed by a qualified professional. An activity director is responsible for directing the development, implementation, supervision and ongoing evaluation of the activities program. Directing the activity program includes scheduling of activities, implementing and/or delegating the implementation, monitoring the response to determine if the activities meet the assessed needs of the resident, and making revisions as necessary.

Activity professionals are the unsung heroes of the profession. They are called to do much and what they do positively affects lives and ultimately affects the image of the home. So while activities, in theory, are everyone’s responsibility, help yourself by hiring an experienced and certified activity professional.

Full Article & Source:
Nursing Home and Assisted Living Activities

Thursday, February 13, 2020

Woman believes a legal guardian robbed her grandmother of thousands before she died


By: Rob Manch

FORT MYERS — When grandparents reach the end of their lives, many families don’t have the time or resources to take care of them. That’s why many choose to assign a professional guardian to take care of them, but sometimes, that decision can go horribly wrong. We spoke to a Cape Coral woman who said her grandmother was stolen from her in a court of law, and we’re also hearing from a state senator trying to keep it from happening to others.

Today, all that Angela Fagg has left of her grandmother can now fit on her kitchen table.

“I feel like it’s all my fault. I honestly do feel like it’s all my fault. Because I wasn’t smart enough to be able to protect my grandma," said Fagg.

Fagg’s grandma, Clara Apseloff, had Alzheimer’s. She was declared infirm, and although Fagg tried to become her legal guardian in court, she didn’t have a lawyer. The judge assigned her grandmother a professional guardian instead.

“We’re walking out, and my grandma is kind of happy and I’m like grandma, it’s okay, and she’s okay and I get to go home with you now. Is that what’s happening? And I said no grandma, you don’t get to go home with me, you’re going back to the facility. I’m not in charge of you anymore. And she cried," said Fagg.

Fagg said, as soon as the guardian had control, things got worse. The doctors stopped talking to her. The nurses wouldn’t allow her to take her grandmother out of the nursing home. Then came the real shock.

“I was told she was running out of money. My grandmother shouldn’t have been running out of money," said Fagg.

Fagg’s grandmother was living at the Palms Senior Living Community in Fort Myers, until she stopped paying rent, and the Palms thinks, that wasn’t her fault, it was her guardian’s. According to a lawsuit, filed by the Palms back in October, the company believes the guardian made up the company she said she worked for, and mismanaged Apseloff’s finances to the point she owed the Palms more than $25,000.

“She was evicted, at 99 years old," said Fagg.

Now, a bill in the legislature, sponsored by State Senator Kathleen Passidomo, is trying to keep this from happening to anyone else.

“The bill prohibits a guardian from petitioning for their own appointment, unless they’re a relative, because we have heard of cases where professional guardians have basically trolled nursing homes and looked for victims," said Passidomo.

Last week was Apseloff’s funeral. Fagg was only notified an hour after she died, and didn’t even get to plan the ceremony.

“I just don’t understand how somebody could take something so precious. It’s the end of our life. It’s families that get to do these things, not some stranger," said Fagg.

Senator Passidomo said cases like Fagg’s are becoming more common. Her bill would also prevent guardians from issuing do not resuscitate orders without court approval.

Full Article & Source:
Woman believes a legal guardian robbed her grandmother of thousands before she died

Tennessee mayor accused of stealing over $300G from his grandmother, her estate

By Bradford Betz

A Tennessee mayor is facing allegations that he stole more than $300,000 from his grandmother, according to local reports. 

Investigators began looking into theft allegations against Mount Carmel Mayor Christopher Jones in August 2019, Nashville’s Fox 17 reported

They allegedly found evidence that Jones stole more than $300,000 from his grandmother and her estate by writing fake checks from her account to himself between November 2014 and January 2016, according to the station.

Mount Carmel Mayor Christopher Jones is accused of embezzling more than $300,000 from his grandmother.
Mount Carmel Mayor Christopher Jones is accused of embezzling more than $300,000 from his grandmother.

Jones’ grandmother died in January 2016 in a West Virginia assisted care center, the Kingsport Times-News reported.

A grand jury returned an indictment last week charging Jones with one count of theft over $250,000, according to Fox 17.

Authorities arrested Jones on Monday and booked him into the Hawkins County Hail on a $300,000 bond.

It was unclear if he has an attorney who could speak on his behalf.

Mount Carmel is located in northeastern Tennessee, near the Virginian border.

Full Article & Source:
Tennessee mayor accused of stealing over $300G from his grandmother, her estate

Best practices for resolving patient incapacity issues

With an aging population that continues to mature, many hospitals are struggling to address a growing problem: how to timely treat and discharge patients who lack mental capacity to provide informed consent to medical care.

When a patient lacks the requisite capacity to make discharge plans or consent to medical care, unless the patient has previously signed a health care power of attorney or has a court-appointed guardian, a hospital must decide whether to authorize the patient’s discharge or next level of care without first obtaining legal consent.

To address this problem, many hospitals have adopted policies that allow an incapacitated patient’s family to make medical decisions on the patient’s behalf. In cases in which no family can be located, hospitals are usually left with no choice but to pursue the establishment of a court-appointed guardianship.

Throughout Ohio, it has become increasingly difficult to identify guardianship applicants. And even when an applicant can be identified, it can take a month or more before a guardianship can be established. As a result, the inability to quickly locate a patient’s family often results in discharge delays, treatment delays and reduced bed space, all of which increase costs and lead to poorer patient outcomes.

With the assistance of legal counsel, Ohio hospitals can perform comprehensive next of kin searches. These searches often quickly resolve patient incapacity issues without the need to involve Ohio courts. For example, in about 80% of cases referred, we are able to locate a patient’s family within a few days.  This decreases costs, reduces unnecessary hospital stays and improves patient outcomes without the need for lengthy legal proceedings to establish court-appointed guardianships.

Patient incapacity issues can be complex, and many hospitals find it beneficial to receive guidance from legal counsel when confronted with these issues, including performing comprehensive next of kin searches and, when necessary, navigating the probate court process for establishing court-appointed guardianships.

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Best practices for resolving patient incapacity issues

Wednesday, February 12, 2020

Tampa man’s savings goes missing after Wells Fargo declares account dormant, transfers money to state

by: Shannon Behnken

TAMPA, Fla. (WFLA) – Franz Forbes wants to know what happened to the $1,886.25 that he thought was safe in his savings account. Now his account is closed and no one has been able to provide a record of where the money went.

“It’s my money, and I need it,” Forbes said. “I don’t know how they can do this. I wasn’t given a warning.”

Forbes tells 8 On Your Side’s Better Call Behnken that he kept his savings account when he moved from Jupiter to Tampa. Admittedly, he didn’t touch the money for five years. When he did, he discovered he didn’t have an account any longer.

“They told me the money was sent to the State of Florida and I could get it there,” he said.

And that’s when the real trouble started. The state’s Unclaimed Property Division is responsible for returning money like this, sent from dormant accounts at financial institutions. But, in this case, Forbes said the state says they can’t find any record the money was sent to them.

“Wells Fargo insists they sent it and no one will help,” he said. “They said the account’s closed, you need to go away.”

Hours after Better Call Behnken started investigating, the bank called Forbes. He was asked to come to the bank, where he was given a cashiers check for the full amount which he’s already cashed.

This isn’t the first time Better Call Behnken has helped someone get their own bank account money back.

Here’s some 8 On Your Side Better Call Behnken advice: in order to keep your account from being deemed dormant, make sure there is activity on your account.

Activity means more than just looking at your account balances or accruing interest in a savings account. It’s a good idea to make deposits from time to time, even if they are small.

Full Article & Source:
Tampa man’s savings goes missing after Wells Fargo declares account dormant, transfers money to state

News10NBC Investigates a nursing home ultimatum: ‘Sign it or you're out’

by Berkeley Brean

ROCHESTER, N.Y. (WHEC) — Sign it or you're out. That's the ultimatum families say they faced when they put a loved one into a nursing home.

It's the latest News10NBC investigation into how some nursing homes are treating families.

Last week, we showed you how a dozen local nursing homes using a few local law firms are suing the spouses, children, grandchildren, relatives and friends of residents for tens of thousands of dollars.

Now News10NBC exposes the ultimatum some nursing homes put on families at a moment of crisis.

Berkeley Brean (right) speaks with Kelly Hodge (left).
Berkeley Brean (right) speaks with Kelly Hodge (left).

"So my dad has Alzheimer's," Kelly Hodge said.

Hodge's father is a Vietnam veteran, a retired police officer and a grandfather. Before Christmas, Kelly and her family had to move him to a nursing home upstate.

Chief Investigative Reporter Berkeley Brean: "And then the admission agreement comes."

Kelly Hodge: "Yep."

It was 33 pages long.

Kelly, who lives in Fairport, said she wanted a lawyer to look at it before she signed it. With the lawyer's advice, she crossed out certain sections. But she says the nursing refused to accept the changes.

Hodge: "And then it became not only will they not move him but they would give his room away."

Brean: "They were going to discharge him."

Hodge: "They claimed they would discharge him, that we could discuss the discharge process."

Brean: "Because you didn't sign the agreement."

Hodge: "Yes."

The nursing home actually put it in writing.

News10NBC obtained emails sent from the nursing home to Kelly Hodge.

On Jan. 17, the email from the nursing home says her father's move to the "long term care unit cannot occur without the signed admission agreement."

On Jan. 20, the email said if Kelly didn't sign the agreement her father's room would go to "another family" and then they would "begin the discharge planning process."

Hodge: "There was no negotiations. It was just, let's talk about discharge."

Brean: "Sign it or he's out."

Hodge: "Yes."

"And now they're hearing this, and it is: ‘Sign this right now or else we're discharging you,’" attorney Tim Pellittiere said.

Pellittiere is the lawyer Kelly Hodge went to.

Timothy Pellittiere, Esq., Pellittiere & Jonsson, PLLC: "Or you have to sign it, it can't be modified, it can't be changed. We can't change any of the language. Sign it as it is. That's not a freely negotiated contract."

Brean: "But it's by signing these contracts that people are opening themselves up to getting sued."

Pellittiere: "What choice do they have?"

For the last two months, I compiled a list of more than six dozen lawsuits by non-profit nursing homes against residents, some of them dead, and their daughters, sons, spouses, nieces, nephews and friends.

Click here to watch our investigations into the lawsuits, including a woman sued for $21,000 after she tried to help her friend into a nursing home.

In almost every case, the relative or friend getting sued signed their loved one's admission agreement because it made them the "financial agent."

Brean: "So what is the answer here? Don't sign these agreements if you have a loved one going into a nursing home?”

Miles Zatkowsky, Dutcher & Zatkowsky Elder Law: "Again that gets complicated because what clients are telling us is that if I don't sign the agreement as is, I'm not getting a bed offer."

Miles Zatkowsky is an elder law attorney in Brighton.

Kelly Hodge eventually signed the agreement and her dad got a bed.

But she added her own handwritten part to the agreement. It says "I have been told... that I must sign this contract as is, without any changes, or my father will be discharged from the facility."

It was signed by her and the nursing home.

"Now, I signed this knowing that eventually I could be sued," Hodge said. "But I also know they don't have a strong case. But I knew that. My attorney told me that. People don't know that."

Kelly asked that we not name the nursing home to protect her father. It's not in Rochester. It is upstate.

I spoke with the State Association of Nursing Homes.

The CEO says nursing homes have the right, under state law, to ask a resident or their families to sign admission agreements.

Full Article & Source:
News10NBC Investigates a nursing home ultimatum: ‘Sign it or you're out’

Legislation To Combat Elder Abuse Passes Committee

HOUSE DEMOCRATS News:

A Task Force Would Study and Make Recommendations for Penalties for the Abuse of Senior Citizens and Adults with Disabilities

SANTA FE − House Memorial 10 sponsored by Rep. Deborah Armstrong (D-Albuquerque) today passed the House Health and Human Services Committee. 

The memorial seeks to address the growing incidence of elder abuse and abuse of adults with disabilities. It directs the non-profit Senior Citizens Law Office to convene a task force to study abuse, especially financial, and recommend civil and criminal penalties to be enacted.

“Elder abuse – financial and physical – is a problem hiding in plain sight. We need to get laws on the books and really start addressing this in New Mexico,” Rep. Armstrong said. “Clear definitions and penalties for abuse will give our law enforcement and service agencies the tools they need to intervene in these cases.”

Abuse against senior citizens and adults with disabilities is often carried out by family members, friends, professionals, and others that have gained their trust. 

Currently, there is not an adequate legal framework to effectively prosecute many cases of financial abuse which can include abuse of the powers of attorney, joint ownership of financial assets, bank fraud, scams, and property theft. Incidents of financial abuse can be so severe that victims are left completely destitute and lose access to housing, medical care, and other basic needs. 

As both the number of people over 65 grows in New Mexico and the frequency of elder abuse increases, the need to address elder abuse becomes more pressing. 

The rate of elder abuse is believed to be widely under-reported due to fear and stigma. Still, a full 10 percent of Americans over the age of 65 have reported experiencing a form of elder abuse, 12 percent of whom report financial abuse, and the reports are becoming more frequent. 

New Mexico has one of the largest 65 plus populations in the country per capita, and the population is growing. In 2018, 17.5 percent of New Mexicans were over 65 compared to 10 percent nationally. New Mexico’s 65 plus population has grown 5.5 percent since 2010. New Mexico’s senior populations living in isolated rural communities are especially vulnerable to abuse.

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Legislation To Combat Elder Abuse Passes Committee

Tuesday, February 11, 2020

Bill would require coroner notification in nursing home deaths

Richmond County Coroner Mark Bowen
By Sandy Hodson

Caleb Connor says he has seen horrific cases of elderly abuse and neglect in his legal career, as he and his firm specialize in representing nursing home patients and their families – including a case in which the cause of death was listed by the nursing home director as heart failure when the victim had a bedsore big enough to push a fist into it.

But a bill pending before the General Assembly this year would reverse a law from 1996 that gives nursing home personnel the ability to sign death certificates. The bill would require long-term care facilities to notify the county coroner’s office when there are deaths.

“Many nursing home residents die of natural causes. (But) sadly, in our state and across the country, we have seen terrible cases of what looks like abuse or neglect of nursing home residents,” said Melanie McNeil, Georgia’s long-term care ombudsman.

A coroner’s investigation could exonerate nursing home staff, and identify for prosecution those who neglect and abuse patients, McNeil said.

“If the perpetrator is not prosecuted, he or she is free to continue to abuse and neglect nursing home residents,” she said.

Connor called the measure, House Bill 262, “a step in the right direction.”

Even if a coroner just spot checks, having an independent professional evaluate a body to confirm cause of death could have a huge impact and serve as a deterrent to abuse and neglect, said Connor, whose firm has offices in Augusta and Aiken County.

Richmond County Coroner Mark Bowen has pushed for the bill’s passage since the last session of the General Assembly. He’s hopeful it will pass this year and become law.

Although it would increase a coroner’s workload, several coroners in Georgia also support the bill, said Bowen, who is president of the Georgia Coroners Association. There are many good nursing homes providing quality care in Georgia, but coroners could catch the cases that are falling between the cracks, he said.

Last April, the Office of Inspector General for the Department of Health and Human Services reported there are an average of 7,100 nursing home patients who suffer a serious adverse health event each year. More than 100,000 more patients suffer less serious adverse events. More than half of those life-threatening and endangering events could have been prevented.

William Loomer, who leads the local Crimes Against the Vulnerable and Elderly task force, said his team is seeing an increase in nursing home reports of possible neglect and abuse.

Though most of the homes in CAVE’s jurisdiction provide great care, “self-regulation will always be a concern,” Loomer said.

“Nursing homes often conduct their own in-house investigations of potentially criminal allegations, and law enforcement is never notified,” Loomer said. “The success of this bill would not only ensure that an impartial investigation of every nursing home death is conducted by the coroner, but I believe it would increase public confidence in the nursing home’s practices in the long run.”

The Georgia Health Care Association and Georgia Center for Assisted Living is on top of the bill, said Devon Barill, the communications director for the organization of long-term assisted living facilities.

“GHCA is aware of HB 262 and has had substantive conversations with the GBI and Georgia Coroners Association regarding reporting requirements and how they may be further defined and clarified,” she said. “We will continue to remain engaged with all parties on this issue.”



Full Article & Source:
Bill would require coroner notification in nursing home deaths

More elder abuse cases being reported in RI, statistics show

by TAMARA SACHARCZYK

Elder abuse is happening at an alarming rate across the country, including in Southern New England.

An estimated one in 10 older adults are victims of elder abuse. Some of the cases are physical or sexual in nature, while others are emotional involving abandonment, neglect and self-neglect.

According to the Rhode Island Office of Healthy Aging (formerly the Division of Elderly Affairs), there were 1,377 confirmed cases of elder abuse in 2017, which is 444 cases more than just five years earlier. Some of the cases have happened in state-run facilities, such as nursing homes and adult day care centers.

I pulled records from the Center for Medicare and Medicaid Services to get a better idea of what’s happening at nursing homes in Rhode Island.

The Nursing Home Comparison Tool has ranked 23 of Rhode Island's 79 nursing homes as “below average” or “much below average” based on quality of care, staffing and health inspections. The reasons behind those ratings are detailed in reports filled out by the facilities.

In one case, a staff member "threatened to hit a resident” and was “throwing air punches” at the resident. In a separate case, a nurse directed other staff members not to help a resident who was locked in her room, calling out for help, because she was upset the resident threw pills at her. Another nursing home was cited after a CNA failed to tend to a resident who activated their call light, because that CNA was “on a coffee break” for 20 minutes.

Those instances just scratch the surface of what we found.

Attorney Anthony Leone has prosecuted dozens of legal cases against local nursing homes, ranging from neglect to abuse.

“We’ve seen cases where folks haven’t seen medication for almost a year. We’ve also seen cases where a clear medication error led to serious harm," Leone said.

He said many of these cases are the result of low staffing levels.

"There are a whole variety of injuries we see Some of the most common include high-pressure injuries, falls that result in fractures hip fractures, medication errors, infections that are not timely diagnosed or are not timely treated. Those are probably the most common types of cases that we see," he said.

There are no minimum requirements for staffing levels at nursing homes in Rhode Island, but the state does require a registered nurse to be in the facility 24 hours a day, seven days a week.

NBC 10 News found several cases in local nursing homes where residents fell because no one was around to help them get up or suffered skin wounds after they were left lying in one position for too long.

Leone said abuse and neglect complaints are reported to the state Department of Health, which will then conduct an unannounced visit to investigate.

If a deficiency is found during an inspection or complaint investigation, the facility is required to develop a plan of correction. The state will then monitor that plan to make sure any issues have been corrected within a certain time frame.

Depending on the case, the attorney general's office may also get involved.

NBC 10 News found that over the past two years, the attorney general's Medicaid Fraud Control Unit has investigated 20 accusations of patient abuse in state health care facilities, including nursing homes and adult day care centers.

The office’s Elder Abuse Unit investigated 73 abuse incidents in that same time period, cases that aren’t exclusive to nursing homes.

Rhode Island also has an ombudsman program that addresses complaints in the state’s long-term care system. The most recent statistics show the ombudsman verified 200 of the 416 complaints about nursing homes in 2017, and 41 of 78 complaints from assisted-living facilities.

Special Assistant Attorney General Molly Kapstein Cote told me the number of cases that haven't been reported or investigated is likely much higher than that.

“It’s underreported for a variety of pretty serious and sad reasons," Kapstein Cote said.

Kapstein Cote said elder abuse isn't just happening in nursing homes. Oftentimes, it happens under the victim's own roof by someone they know and trust, making many victims reluctant to come forward.

"Oftentimes victims rely on their caretaker, who may also be their perpetrator for help with everything throughout the day, from assistance with personal needs to getting food and transportation. They’re terrified that if they turn that person in, they’ll have no other person to take care of them and make sure they can function throughout the day," Kapstein Cote said.

That's why she wants to remind the public that Rhode Island is a mandatory reporting state. That means if you suspect abuse is happening, you're legally obligated to report it regardless of whether you're a stranger, a family member or even the victim.

According to state law, failure to report abuse of a person 60 or older can result in a fine of up to $1,000.

Kapstein Cote said the state can only stop elderly abuse if it knows when it’s happening.

"It’s happening much more than we realize, and we need to encourage older adults to not be scared or embarrassed. We want them to come forward and know that we’re here," Kapstein Cote said.

Elder abuse and self-neglect can be reported 24 hours a day by calling the Office of Healthy Aging at 401-462-0555.

Reports can be filed anonymously.

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More elder abuse cases being reported in RI, statistics show

J.H. Floyd built Sarasota’s first black nursing home. His portrait was found in the trash



By Timothy Fanning

The framed portrait was found in the dumpster of the Sarasota nursing home that once bore his name

CORRECTION: William Fred Jackson, the publisher of the Weekly Bulletin, died of cancer in 1989. A previous version of this story stated otherwise.

SARASOTA — The Rev. J.H. Floyd built three churches in Sarasota’s historic African American community. Floyd taught carpentry at Booker High School and built houses and businesses when his white counterparts refused to do so.

Because the city’s segregation laws barred the black community from nursing homes when they became too ill or infirm to care for themselves, Floyd raised money and, in 1957, broke ground on Newtown’s first senior care facility.

That’s why so many were outraged when Floyd’s 16-by-20 portrait was recently found in a waste bin of the nursing home that once bore his name.

“They just casually threw it away,” said Jetson Grimes, an entrepreneur and community organizer. “Some people just do not see the value in who black people are.”

Floyd’s portrait was retrieved from the trash at Crossbreeze Care Center on 1755 18th St. and taken to Grimes, who runs the Newtown Historical Gallery on Osprey Avenue in Sarasota, Grimes said. The gallery, a museum of sorts, pays homage to the expansive history of Sarasota’s oldest black community.

The man who saved it didn’t know who Floyd was. Grimes did. There are newspaper clippings of Floyd all over his gallery. There’s even a historical marker with his name on it not far from the nursing home. He called former Sarasota mayor Fredd Atkins and City Commissioner Willie Shaw. Atkins and Shaw were shocked when they saw the portrait.

“Why didn’t someone not ask; why didn’t they talk to somebody?” said Shaw. “There are people in this community who would have taken it and found it a home.”

Atkins called it a “total disrespect and disregard for this community. For them to just throw it in the garbage is worse than what I can imagine.”

It isn’t clear why or how Floyd’s portrait ended up in the trash.

J.H. Floyd Sunshine Nursing and Rehabilitation Center, now called Crossbreeze Care Center, is under new management. The 101-bed nursing home was sold to a Miami-based company almost a decade ago. It changed hands again in 2017.

Crossbreeze’s administrators did not return a request for comment. A receptionist who answered the phone on Thursday said she didn’t know anything about the portrait and said that “we aren’t even named J.H. Floyd anymore.”

George Bumbray also didn’t know how Floyd’s portrait ended up in the trash. Bumbray, a retired C.I.A. agent, is the chairman of the nonprofit organization that used to run the nursing home. The nonprofit sold J.H. Floyd Sunshine Manor in 2012 to help improve the two other facilities next door, Sunshine Meadows and Sunshine Village.

The two companies that have owned the facility since have made a number of changes to Crossbreeze Care Center over the years, Bumbray said. The roof was replaced. New medical equipment was purchased, and dozens of new employees were hired.

The portraits of Floyd and all the board of directors are also gone from the main entrance.

“They used to hang there, so everyone could see that strong black men and women ran this place with pride,” Bumbray said.

For Grimes, the curator of the Newtown Historical Gallery, the portrait is more than just a photograph.

“This is something that gives honor to a person of undue restraint, someone who went beyond the call of duty,” Grimes said. “The portrait means he’s done things that are important.”

A dreamer, a builder

Floyd moved to Sarasota in 1925 as a young building contractor at the height of Florida’s building boom.

He built and renovated homes in the city’s black and white communities, laid the foundation for the Helen R. Payne Day Nursery and built the USO Recreation Building on 34th Street for black World War II soldiers. After the war, the building became the Newtown Recreation Center.

Floyd also built three churches: True Vine Missionary Baptist Church, New Bethel Missionary Baptist Church and Mount Moriah Baptist Church. He was ordained as a minister in 1957, serving as pastor until his death in the 1970s.

In 1957, Floyd and members of the Choirs Union, a charitable group of choir members from a handful of black churches, broke ground on the Old Folks Aid Home on East Myrtle Avenue.

Before the facility opened in 1960, the only place for African American seniors to grow old was in their homes. In 1967, a new facility was built on 18th Street, where Crossbreeze Care Center stands now. The facility was named J.H. Floyd Sunshine Manor, whose namesake served as president of the board of directors for almost 20 years.

Decades after Floyd’s death, J.H. Floyd Sunshine Manor had fallen on hard times, with tax filings showing their revenue dropping by more than $1 million in 2010. It was sold to make improvements to the other facilities.

Bumbray, chairman of Sunshine Meadows and Village, believes that perhaps someone at Crossbreeze Care Center didn’t see the historical value of the portrait, which now has a permanent home at the Newtown Historical Center.

While history is thrown away all the time, Commissioner Shaw said these things happen all too often in the black community that has seen a lot of change over the years.

In the early 1970s, photos, yearbooks, trophies and other memorabilia were tossed out of Booker High School as the school district tried to encourage integration in Sarasota’s public high schools, Shaw said.

William Fred Jackson, the publisher of the Weekly Bulletin, the area’s first African American newspaper, died of cancer in 1989. Many of the newspaper’s photographs and archives were lost, Atkins said.

“That’s what happens to our history,” Atkins said. “Someone loses a home or a business and folks come and just rake the place out into the trash pile.”

Since receiving a grant from the city of Sarasota in 2015, Vickie Oldham and a team of professionals and volunteers have painstakingly tried to salvage and chronicle the history of Newtown and the local struggle for civil rights. Many of the photographs and historical items they use in the project came from private collections stuffed in envelopes or cardboard boxes in a garage.

“These things don’t end up in places like the historical archives because black people here have always had a fear of giving their photos or memorabilia to the white people who traditionally have run historical archives,” Oldham said.

Most people bring their belongings to the Newtown Historical Gallery, nestled next door Grimes’ salon. The small gallery is stuffed almost to the brim with things people bring in.

While Grimes, Oldham and others are working toward creating a permanent African American museum in Sarasota, the project has been slow to come to fruition. Oldham envisions a space big enough to fit Newtown’s rich history.

“One man’s trash is another man’s gold,” said Shaw. “There are people here who will take your treasures. All you have to do is ask.”

Full Article & Source:
J.H. Floyd built Sarasota’s first black nursing home. His portrait was found in the trash

Monday, February 10, 2020

Virginia: Levine’s guardianship bill faces unexpected last-minute objection from state bar lawyer

By Bridget Balch

Delagate Mark Levine
For the third year, Del. Mark Levine, D-Alexandria, proposed a bill intended to strengthen family members’ and loved ones’ rights to visit adults who are under legal guardianship. After spending a year working with numerous stakeholder groups to refine the bill into something everyone agreed upon, he was surprised when a lawyer from the Virginia Bar Association stood in opposition during the bill’s subcommittee hearing.


Levine’s first attempt at the bill was inspired by a constituent, Mike Jacobs, who came to Levine with a story about how he had been unfairly banned from seeing his longtime partner, Jane Lopez, who had Alzheimer’s disease, by an attorney serving as Lopez’s legal guardian, Levine said.


Shannon Laymon-Pecoraro
Shannon Laymon-Pecoraro, an elder attorney representing the Wills, Estates and Trusts Section of the state bar, objected to several parts of the bill. Among them is a provision that would place greater emphasis on the guardian ad litem determining whether any conflicts of interest exist among the parties in the guardianship case. A guardian ad litem is an attorney appointed by the court to investigate a guardianship case and represent the allegedly incapacitated person’s best interests.
 

“It’s our position that the guardian ad litem is not an ethics expert and it’s the attorneys’ job themselves to determine whether or not there’s an ethical issue,” said Laymon-Pecoraro, who asked that the bill be delayed another year. “We have proposed that because this is a major overhaul and the bill has continued to evolve rapidly over the course of the last few months, that we not act in haste and that instead that we continue to work with Del. Levine.”


Levine said that provision in the bill was intended to addresses issues like those reported in the Richmond Times-Dispatch three-part investigative series into guardianship that revealed that VCU Health System and other health care providers were taking low-income patients to court and requesting that their own attorney be appointed the patient’s guardian. The guardianship orders gave the hospital’s attorney control over the patient’s medical decisions and finances. The series also found that the same guardian ad litem was employed in nearly 90% of all of cases over the past six years and that her fees were paid by VCU Health. 


“Hospitals are sometimes trying to get rid of difficult patients — difficult because they cost the hospital a lot of money — so they get their guardian and their guardian ad litem and they all pay these people and then no one’s there to represent the interest [of the patient],” Levine said, in defense of the provision. “The point is so the judge knows who’s paying the fees.”


He also referenced Yolanda Bell, a Manassas resident who attended the subcommittee hearing to advocate for the bill. Her sister was put under guardianship at the request of Inova Health System and she later faced visitation restrictions imposed by her sister’s guardians.


“As a family of faith, our religious beliefs are very important to us, and because of the severe restrictions imposed by the guardians, even clergy were turned away from my sister,” Bell told the subcommittee. “She was not able to receive the last rites of the church.”


Laymon-Pecoraro also objected to a provision in the bill that would allow a close relative or intimate partner to request a court-appointed lawyer on behalf of the allegedly incapacitated person. Under current law, the incapacitated person has a right to a court-appointed lawyer, but only if requested. And it is up to the guardian ad litem to determine whether a lawyer is needed even if the patient requests one.


“The right to counsel is a due process right of the respondent and not that of anybody else,” Laymon-Pecoraro said.


The Times-Dispatch investigation found that the guardian ad litem in the majority of health care provider-sponsored guardianship petitions in Richmond almost never recommended a lawyer for the patient, and on at least one occasion, said she did not believe it was necessary even though the allegedly incapacitated person requested it.


Levine expressed frustration that the bar’s concerns were not brought to him before the subcommittee meeting and said that the latest draft of the bill — draft 23 — addresses the concerns Laymon-Pecoraro had detailed.


“I can give a point-by-point rebuttal to every single — every single issue she raised is addressed in the substitute because I have been working with [the Virginia Academy of Elder Law Attorneys] and AARP and the National Guardianship Association and Alzheimer’s [Association],” Levine told the subcommittee members.


Laymon-Pecoraro said that the Wills, Trusts and Estates Section of the state bar association had not attempted to discuss the legislation with Levine and that the section members had only been able to discuss the bill the previous Friday.


Del. Patrick Hope, D-Arlington, who is a health care lawyer, said that he had mobilized elder law attorneys to help stop Levine’s guardianship bill during the last legislative session and that he was disappointed that concerns with the bill still hadn’t been addressed.


Levine said that Virginia Bar Association representatives were involved with discussions around the bill and that he had incorporated all of their suggestions.


Brad Brickhouse, an elder law attorney who opposed Levine’s bill last year, said he supports the version presented to the committee.


“I still disagree with Del. Levine on pretty much everything else, but this bill is OK,” Brickhouse said. “I can’t think of any group that wasn’t at the table.”


The subcommittee directed Levine and Laymon-Pecoraro to work on a compromise in time for the bill to be heard before the full House Courts of Justice Committee on Friday.


“My impression from the way we do things here though is we kind of like to kick everybody out and tell them to come back when they’ve worked their differences out,” said Del. Marcus Simon, D-Fairfax, a member of the subcommittee. “Perhaps this can be ready by Friday, if not it can go by for the session.”


Levine said he was willing to hash out the details with Laymon-Pecoraro on Wednesday night after the subcommittee meeting, but that she did not have authority to negotiate on the state bar’s behalf. Instead, she directed him to Tom Yates, chair of the legislative committee of the bar’s Wills, Trusts and Estates Section.


Yates and Alison Zizzo, who represented the Virginia Bar Association in stakeholder meetings to discuss Levine’s bill, did not respond to questions sent Thursday.


Another House subcommittee agreed Wednesday to send a letter to the Joint Legislative Audit and Review Commission, the state’s oversight arm, requesting a study of guardianship and ways to prevent abuse, which was proposed by Levine and Del. Danica Roem, D-Prince William.

 

Full Article & Source:
Virginia: Levine’s guardianship bill faces unexpected last-minute objection from state bar lawyer