Saturday, February 20, 2021

Federal judge to rule on doctor lawsuit against Adult Protective Services over guardianized elderly mom

By David Yates

AUSTIN - A U.S. Magistrate issued a report recommending that Austin-based federal judge Lee Yeakel dismiss a pediatrician's lawsuit against Adult Protective Services, concerning her elderly mother who died under court-appointed guardianship.

Dr. Sheila Owens Collins sued the Texas Department of Family and Protective Services (TDFPS), her niece Aisha Ross, and Adult Protective Services (APS) Executive Director Jaimie Masters in the Texas Western District Court, accusing the state agency of violating the U.S. Constitution under 42 U.S.C. § 1985 and 42 U.S.C. § 1983.

“TDFPS argues that Plaintiff’s constitutional claims under § 1983 are barred by sovereign immunity,” wrote U.S. Magistrate Judge Susan Hightower in her Feb. 9 Report and Recommendation. “The Court agrees.”

While sovereign immunity requires the consent of a state agency before lodging legal action against it, Section 1983 of Title 42 of the U.S. Code was enacted to defend against racial abuse that allegedly occurred in states below the Mason-Dixon line after Black Americans were released from slavery in1865.

“Plaintiff alleges that Ross was involved in a civil conspiracy with the other individual defendants to deprive Plaintiff of her civil rights under 42 U.S.C. § 1985,” Hightower stated. “In addition, Plaintiff asserts state law claims of business disparagement, tortious interference with an existing contract, and intentional infliction of emotional distress. Plaintiff’s civil conspiracy claim under § 1985 fails because that statute applies only to allegations of race-based animus against federal officials.”

Hightower’s recommendations to the court further noted that the plaintiff disputes whether sovereign immunity applies because the plaintiff seeks equitable and monetary relief. However, Hightower asserted that claims against state agencies are barred regardless of the relief sought.

“Masters argues that Plaintiff’s claims should be dismissed based on sovereign immunity, the Younger abstention doctrine, limitations, qualified immunity, and failure to state a claim,” Hightower wrote. “Plaintiff did not respond to any of these arguments. Instead, she filed a Motion for Leave to file a second amended complaint. Plaintiff’s Motion for Leave and proposed second amended complaint, however, also fail to substantively respond to any of Masters’ arguments for dismissal.”

The plaintiff also named Lydia Bias, a supervisor in the APS Houston office, who was served the summons as recently as Jan. 30.

“Plaintiff filed suit on April 7, 2020,” Hightower reported. “The 90-day period in which to effect service on any unserved defendants has long since expired. If Plaintiff wishes to pursue her claims against Bias, she must explain her failure to serve Bias in any objections filed in response to this Report and Recommendation. Otherwise, Defendant Bias should be dismissed under Rule 4(m).”

U.S. District Judge Yeakel has yet to issue a final order in the matter. The plaintiff is represented by Martin J. Cirkiel of Cirkiel & Associates law firm.

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Nurse faces charges tied to patient death at California nursing home

by Gabrielle Masson

A registered nurse is facing charges alleging neglect and abuse of a 69-year-old female resident, according to a Feb. 17 news release from California Attorney General Xavier Becerra.

Emily Jones, RN, a caregiver with Miami-based Vitas Healthcare, was providing care for a resident at a Riverside, Calif.-based nursing home. She allegedly failed to record the discovery of an open ulcer on the resident. She also is accused of failing to notify a physician and the resident's family of the resident's deteriorating condition. The ulcer worsened into a wound that required the resident to undergo emergency surgery to her right foot, which had become septic and gangrenous. After the surgery, the resident's health continued to decline, and she eventually died.

Ms. Jones was arraigned Feb. 17 on one count of felony elder abuse.

"Elder abuse does not always come in the form of a physical attack. It can result from utter neglect and lack of proper care, as we allege in the case of Emily Jones," said Mr. Becerra. "Jones, a registered nurse, owed her patients due care. Assisted living residents are a vulnerable population all too often victimized by acts of neglect and improper care. We must hold our medical professionals accountable for their actions."

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Rochester Woman Admits to Taking Elderly Mother’s Money

by Andy Brownell

Rochester, MN (KROC-AM News) - A Rochester woman is scheduled to be sentenced in April for taking money from her elderly mother's bank account for her personal use.

67-year-old Anne Reick today admitted to a single count of financial exploitation of a vulnerable adult through a plea agreement that resulted in the dismissal of four other felony charges. The charges were filed against the Rochester woman in November 2018 following an investigation into withdrawals from her mother's account between January 2016 and December 2017.

Reick's mother was living in a nursing home at the time and was classified as a vulnerable adult. The criminal complaint indicated Reick had control of the older woman's finances and the investigation determined she took about $22,000 from her bank account.

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Friday, February 19, 2021

Sen. Tedisco responds to news of FBI, U.S. Attorney investigation into nursing home deaths

NewsChannel 13 has confirmed the FBI and US Attorney’s Office in Brooklyn have opened an investigation into the governor’s COVID-19 Task Force and its handling of nursing homes during the pandemic, as first reported by the Times Union. 

Sen. Jim Tedisco is responding to the news. He released the following statement:

“This was never about politics as some things, like the deaths of 15,000 nursing home residents, rise above politics. Given this federal investigation into the Cuomo Administration, the legislature should revoke the Governor’s emergency powers as there’s bi-partisan agreement among Democrats and Republicans who believe we should restore the legislature’s role as an equal branch of government. This must be the top legislative priority when we reconvene on Monday afternoon as Cuomo can no longer be trusted with his ‘Emperor-like’ powers.”  

“Once we take Cuomo’s powers away, the legislature should send our own subpoenas to the Administration to begin a state investigation of the nursing home cover-up or pass my legislation with Assemblyman Ron Kim for a bi-partisan, independent investigation of the nursing home scandal.”

 “If the facts demonstrate a cover-up and obstruction of justice, and they certainly seem to with the drip, drip, drip of new information revealed on a daily basis, then Governor Cuomo must resign or face impeachment and removal from office.”

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The Fallout for Cuomo Over Nursing Home Deaths

By Troy Closson
Johannes Eisele/Agence France-Presse — Getty Images

Gov. Andrew M. Cuomo wrote a memoir on pandemic leadership last year. But questions around New York’s incomplete count of coronavirus-related deaths in nursing homes have undercut his national image.

Now, the Democratic leaders of the State Senate are in the final stages of crafting a bill that would strip him of emergency powers granted during the pandemic.

“I believe they should be taken away, hopefully sooner than later,” State Senator Gustavo Rivera said on Wednesday, adding that “we need to remind them that state government is not one big branch: There’s three of them.”

[Read more about the move by lawmakers.]

Here’s what you need to know:

Nearly a year ago, Mr. Cuomo was granted far-reaching authority to supersede state laws to combat the pandemic. He has signed dozens of executive orders since then, mandating shutdowns and instituting quarantine requirements for travelers, among other actions.

The bill’s passage, which could occur as soon as next week, would limit those powers and would be a remarkable rebuke in the aftermath of Mr. Cuomo’s admission that he withheld nursing home data from the Legislature, according to my colleagues Jesse McKinley and Luis Ferré-Sadurní. It would also establish a 10-person commission to evaluate his future pandemic-related directives.

It remains unclear if the State Assembly would follow the Senate’s lead, and any bill passed would also need to be signed by the governor himself — though Democrats could override a veto with supermajorities in both chambers.

The governor also faces a federal inquiry by the F.B.I. and the U.S. attorney for the Eastern District over his handling of nursing homes during the pandemic.

Critiques of the governor’s nursing home policies have been raised for months, and Mr. Cuomo had long dismissed them as partisan attacks. But on Wednesday, he lashed out at a critic from his own party, Assemblyman Ron Kim, a Queens Democrat who had said the governor had threatened him earlier.

After a report from the state attorney general and a court order, the official count of deaths of nursing home residents nearly doubled from about 8,500 to more than 15,000. Those who died in hospitals had not been initially included.

Mr. Cuomo’s top aide, Melissa DeRosa, also privately told some lawmakers last week that officials had withheld data because they worried about a possible Trump Justice Department investigation, sparking further allegations of a cover-up. The governor has since said that his administration’s lack of transparency was “a mistake,” but has stopped short of a full apology.

“That void of information caused the families who lost a loved one tremendous pain,” he said on Wednesday. “My administration created the void — and that I feel bad about. Not illegal, not unethical. But just failed people in that moment.”

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Exclusive: New York Tells Hospitals In Leaked Email That Staff 'Must' Come Before the Elderly In COVID-19 Vaccination Drive

New York Governor Andrew Cuomo discusses the state's vaccine distribution plan at Riverside Church in New York City on Nov. 15, 2020.
Lev Radin—Getty/Pacific Press/LightRocket

By Simon Shuster

The state of New York has warned hospitals that they cannot start giving COVID-19 vaccines to elderly people until they finish vaccinating hospital staff members, according to an email sent to hospitals across the state just before midnight on Feb. 5 from the governor’s vaccination chief, and obtained by TIME this week.

The memo from Larry Schwartz, an adviser to Governor Andrew Cuomo who is overseeing the vaccination drive across the state, presents a dilemma for some New York hospitals, which have faced widespread hesitancy among staff members to take the vaccine. Schwartz’s email says that hospitals cannot vaccinate other segments of the population—such as the elderly and those with chronic diseases—until they are done vaccinating their medical workers. “If, and only if, all phase 1a eligibility groups been exhausted hospitals may vaccinate individuals in the 65+ category,” Schwartz wrote in his email on Friday night, referring to the highest priority group for vaccination, known as “Phase 1a,” which includes frontline health care workers.

In an interview on Thursday, Schwartz told TIME that the memo was not intended as a threat to punish hospitals for failing to vaccinate their staff. “In no way was the message about penalizing anyone,” he says. If hospital workers later decide to get a vaccine, they will still be able to receive one. They will also continue getting doses to vaccinate other vulnerable populations, Schwartz said. But in the coming days, he does expect a drop in the number of vaccines sent to hospitals as New York moves on to vaccinating other priority groups, such as the elderly, at other vaccination sites. “We are going to reduce their overall allocation,” he said, referring to hospitals.

The memo alarmed some New York hospital administrators, who fear that they will not have enough vaccine doses to distribute in their community. “These decisions are false choices,” says Ramon Rodriguez, the President and CEO of Wyckoff Heights Medical Center, where slightly more than half of employees have declined to take the vaccine. The doses meant for those employees have instead gone to sick and elderly patients from the parts of Brooklyn and Queens that Wyckoff serves, Rodriguez says. “We get the doses and we use them,” he says. “Our vaccinations are more targeted towards sick people who are chronically ill because this is the place they know to go to. We are their health care provider.”

In a televised briefing on Monday morning, Governor Cuomo lamented the fact that some New York hospitals had only been able to vaccinate 40%-50% of their staff. The average rate, he added, had reached 75%—a level that Cuomo called “the maximum rate that these hospitals can get done.” He did not say that hospitals would face any consequences for having a low rate of staff vaccinations. “Hospitals can’t say to a nurse, ‘you must take the vaccine,'” the governor said. “The nurse has the right to decline, but I want to make sure every nurse had the option, every doctor had the option to take that vaccine. If they don’t want to take it at one point we understand, and we’ll give it to somebody else. So this is the last week for that.”

In his email to hospitals, Cuomo’s vaccination chief appeared to take a tougher tone, suggesting that hospitals could not move beyond the first phase of the vaccination rollout until they schedule shots for their staff members. “You must schedule those employees before you do any other eligible 1a populations,” Schwartz wrote (emphasis his), noting that there are still about 24,000 medical workers who have not yet scheduled a vaccination at their hospitals. “Only upon completion of vaccinating eligible hospital employees, may your hospital move on to vaccinate” other high-priority groups outside the hospital, he added.

The memo does not explain how hospitals are expected to vaccinate workers who refuse to get the shot. Under state and federal guidelines, hospitals are not allowed to mandate vaccination among their staff. The U.S. Centers for Disease Control and Prevention has recommended a strategy of “focused communication and outreach” in order to convince health care workers to be vaccinated.

That strategy has not worked for some New York hospitals. At least 13 of them across the state have not been able to vaccinate even half of their staff, according to figures the governor released on Monday.

“I’ve begged people,” says Rodriguez, the hospital CEO. “Many have changed their minds, but others are waiting.”

Full Article & Source:

Thursday, February 18, 2021

Larry King's Widow Challenges Legitimacy of Handwritten Will in Estate Battle

by Ashley Cullins
Rodin Eckenroth/Getty Images

Shawn Southwick King argues that the one-page document is likely invalid and, even if it isn't, it doesn't revoke King's July 2015 will that named her executor of his estate.

Larry King's widow is pushing back against an effort by his son to wrest control of the late journalist's estate based on a nearly illegible handwritten will.

Probate battles are usually messy, but here there are a few complicating factors: A divorce was pending between Larry and Shawn Southwick King and the talk show host didn't learn of Larry King Jr.'s existence until his son was an adult. Shawn also contends she recently discovered Larry had a "secret" bank account through which he gave more than $266,000 of joint money to Larry Jr. without her knowledge and she is entitled to declare those gifts void and demand it be returned.

Larry Jr. on Feb. 10 filed an ex parte application seeking to become the special administrator of his father's estate, arguing that because Shawn and his father were living apart, he should be in charge of making sure bills are paid and protecting the iconic newsman's publicity and likeness rights. In support of his argument, he submitted a holographic will that's dated two months after King filed for divorce in 2019.

Meanwhile, King's formal July 7, 2015 will names Shawn executor of his estate, and she maintains that Larry didn't really act like he wanted a divorce. They had gone to counseling after he filed for dissolution, he wasn't participating in the divorce proceedings and reconciliation was on the table until his health took a turn for the worse and it became "impractical."

While Larry Jr. argued that King's LK Productions and Larry King Enterprises had "stalled" without anyone to run them, Shawn says they're merely his loan outs and there's no ongoing business to speak of. Larry Jr. also points to unpaid bills (King's assistant and healthcare aids are owed pay, for example), but Shawn says there's no money in the probate estate to pay those, as it's all in joint bank accounts or the Larry and Shawn King 2015 Family Trust, which she controls. That trust also gives her control of King's "deceased personality rights."

In this context, "holographic" means handwritten. And in California there are very specific standards such a document has to meet to be deemed valid. If the handwriting is confirmed as the decedent's, and the document was executed later than any other will and is inconsistent with earlier provisions, the court will have to establish whether the person had the capacity to make such a change.

The one-page document is embedded below. It's dated Oct. 17, 2019 and says he wants 100 percent (which is written above something else that had been scratched out) of his funds to be divided equally among his five children (two of whom have since died) and that this will "should replace all previous writings."

Shawn argues that, even if the document is valid, it doesn't change much.

"The Holographic Will does not nominate an executor but simply purports to change the disposition of assets subject to Larry’s testamentary disposition," states her objection filing. "The Holographic Will states that 'It should replace all previous writings.' That statement is not sufficient to revoke the prior Will. At most, it demonstrates an intent to change the dispositive scheme, but not change the executor. Further, the Holographic Will violates the terms of two separate post-nuptial transmutation agreements entered into between Shawn and Larry and therefore has no legal effect whatsoever."

Further, Shawn argues "during the last few years of his life, Larry was highly susceptible to outside influences and at the time he purportedly executed the Holographic Will was of questionable mental capacity, having recently suffered a stroke and about to undergo a medical procedure (and possibly already under the influence of pre-operative medication)."

Shawn is asking the court to reject Larry Jr.'s petition to be appointed special administrator and deny admission of the holographic will. A hearing is currently set for Feb. 24.


Click to see via SCRIBD

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What 'Framing Britney Spears' Doesn't Really Answer (Guest Column)

by Allen Secretov 

Scott Dudelson/Getty Images

Allen Secretov, an entertainment attorney at Kinsella Weitzman, explains conservatorships and addresses the big question that's left ambiguous in the hit documentary.

Framing Britney Spears documents Britney Spears' rise to superstardom, the traumatizing paparazzi-fueled public scrutiny and rampant speculation she experienced at the peak of her fame, and a subsequent span of chaos that ultimately led to her father obtaining complete control of her personal and financial life in 2008. Thirteen years and hundreds of millions of dollars in income later, Spears continues to live in what is called a legal conservatorship and a legion of fans hoping to inspire a judge to #FreeBritney from what they believe to be an involuntary arrangement. With Spears, Framing finds a sympathetic, seemingly healthy, and incredibly productive figure to highlight how odd it is that a young adult with a vast fortune and even vaster talent is deemed "incapable" of caring for her own well-being while publicly continuing to dazzle on stage and in the studio. But while Framing explains how Spears came to be in the conservatorship, it does not answer the question of why she has never formally sought to end it. As explained below, Spears may attempt to petition to terminate the arrangement. What happens afterwards remains to be seen.

What is a conservatorship?

A conservatorship is a legal arrangement under which a person or entity (a "conservator") is appointed by a court to care for the personal and/or financial well-being of an individual who has been found to be incapable of acting in their own best interests (a "conservatee"). California law provides for three types of conservatorships: Lanterman-Petris-Short (LPS), Limited Probate and General Probate. Since 2008, Spears has been in a General Probate conservatorship.

LPS conservatorships are handled by the mental health courts and used when a person is "gravely disabled," meaning they are experiencing severe mental health disorders and require temporary, highly restrictive, care and living arrangements because they cannot or will not agree to treatment, and who otherwise would be unable to feed, clothe or house themselves.

Limited Probate conservatorships are handled by the probate courts and are for adults who cannot fully care for themselves or their property because they live with severe and chronic developmental disabilities resulting from a mental or physical impairment that began before they reached age 18.

Finally, General Probate conservatorships, which are also handled by the probate courts, are for adults — typically elderly individuals experiencing cognitive decline — who have been deemed incapable of caring for themselves or handling their personal finances or likely to be taken advantage of and whose circumstances do not fall into either of the other two types of conservatorships.

Because of their highly restrictive nature, LPS conservatorships expire after one year, with the conservator having to file a new petition to renew the arrangement. Limited Conservatorships continue until the authority of the conservator is terminated through the death of the conservator, death of the conservatee, or court order. Similarly, General Probate conservatorships continue until the death of the conservatee or until they are terminated by court order. Limited and General conservatees each have the right to petition for termination of the conservatorship.

Why was Spears initially placed into a conservatorship?

As explained in Framing, Spears appeared to suffer multiple mental breakdowns in 2007 and early 2008 highlighted by magazine images of her shaved head, checking into rehab, and two stints in a psychiatric ward. Through this turbulent time, a mysterious stranger named Sam Lutfi appeared to be gaining influence over Spears' affairs, much to the concern of Spears' family and friends.

Soon after the second psychiatric hospitalization, Spears' father, James, petitioned for a temporary general probate conservatorship. On February 1, 2008, the Los Angeles Superior Court placed Spears under a temporary conservatorship with James named as temporary conservator of Spears' "Person." James was also named co-conservator of Spears' "Estate" with attorney Andrew Wallet.

One of James' first acts as Spears' conservator was to successfully obtain a restraining order against Lutfi, alleging that Lutfi had been drugging, isolating and verbally abusing Spears. At the end of 2008, the conservatorship became permanent.

What are the terms of Spears' Conservatorship?

Unless specifically limited by court order, a conservatee retains certain "personal rights," including the rights to marry, make medical decisions, vote, receive visitors, phone calls and personal mail. The conservatee also has the right to ask questions and express their opinions, concerns and complaints about the arrangement and the conservator's decisions, and has the right to ask the court to review the conservator's actions. To ensure that the conservatee is aware of these rights, courts will periodically send a court investigator to visit and speak with the conservatee, advise them of their rights, and inquire about their treatment and circumstances.

While the complete details of Spears' conservatorship arrangement are not fully public, James' role as conservator of Spears' "Person" generally meant that he was given decision-making control and responsibility over Spears' living situation, health care, meals, clothing, transportation, social needs and recreation, with the primary goal of providing her with the best quality of life possible. Reports and court orders have indicated that Spears' conservators have had the authority to restrict and limit her visitors, oversee her personal security and dictate her medical and psychiatric treatment.

As co-conservators of Spears' "Estate," James and Wallet were responsible for managing Spears' finances, including collecting and protecting her income and assets, investing her money, paying her bills with her money, making sure her taxes are in order and keeping orderly records of her income and expenditures. As conservator of Spears' Estate, they were also obligated to file accountings of her finances with the court at least every two years.

Between 2008 and 2019, Spears was incredibly productive as a musical artist, performer and entertainer, as evidenced by her release of four albums, stint as a judge on The X-Factor television program and acclaimed Las Vegas residency. In early 2019, Wallet resigned, leaving James as the sole conservator of both Spears' Person and Estate.

In September 2019, a Los Angeles Superior Court Judge granted James' request to relieve him of his duties as conservator of Spears' Person, but not her Estate, and temporarily replaced him with Jodi Montgomery, a professional conservator previously serving in the capacity of Spears' care manager. Although initially intended to be a temporary replacement, Montgomery continues to serve as the sole conservator of Spears' Person with the approval of Spears' court-appointed attorney, Samuel D. Ingham III.

In contrast, Spears' father is no longer in sole control of her Estate. In 2020, Ingham represented to the court that Spears wanted her father to be replaced as conservator of her Estate by fiduciary entity Bessemer Trust, noting that Spears is afraid of her father and will not perform until her father is no longer in charge of her career. While the court did not remove James as conservator of Spears' Estate, it added Bessemer Trust as co-conservator.

Why is Spears still in a conservatorship?

California probate law allows several people or entities to file a petition for the termination of the conservatorship, including the conservator, the conservatee, "the spouse, or domestic partner, or any relative or friend of the conservatee or other interested person." If no party objects to the petition, then it is commonly granted. Otherwise, the court must determine that that the conservatee is now able to handle their own affairs, sometimes utilizing the court investigator to first evaluate the conservatee's condition.

However, to date, neither Spears nor her attorney have sought to formally terminate the conservatorship. In the same 2020 court filing in which Spears sought to replace her father with Bessemer Trust, Spears' attorney described the conservatorship as "voluntary." Later in the filing, Ingham noted that while Spears prefers for Bessemer Trust to serve as conservator of Estate in place of her father, Ingham reserved Spears' rights to "seek termination of this conservatorship in the future."

It is possible that Spears' attorney is setting the table for an eventual termination petition and sought to remove James from the equation in order to prevent having to litigate against his potential objections. It is also equally possible that Spears may prefer to maintain the conservatorship in some capacity as she gradually assumes more control over her life and finances.

Whether Spears would succeed in a petition to terminate is unknown and we do not know the personal and private details of Spears' mental health. Further, when asked during the documentary whether she was aware of any conservatee ever having succeeded in terminating their conservatorship, attorney Vivian Lee Thoreen — who has represented James in the conservatorship proceedings — said no. There is a dearth of data on conservatorships at both the national and state level, and published opinions of circumstances similar to those of Spears are too few to be able draw any parallel or predictions. Nonetheless, Framing's discussion of conservatorships — which apply most often to the elderly — brings much-needed attention to an opaque area of law that will become more relevant to the lives of the steadily aging United States population.

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Tom Girardi's brother gets OK to serve as guardian in bankruptcy case

By David Thomas

A bankruptcy judge in Los Angeles has cleared the way for the brother of famed plaintiffs’ lawyer Tom Girardi to serve as his guardian during bankruptcy proceedings.

U.S. Bankruptcy Judge Barry Russell on Tuesday said there was no need for him to rule on Robert Girardi’s motion to serve as guardian ad litem because a state court earlier this month appointed Robert Girardi as his brother’s temporary conservator.

To read the full story on Westlaw Today, click here:

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Tom Girardi's brother gets OK to serve as guardian in bankruptcy case 
See Also: 
Girardi bankruptcy judge mulls guardian appointment amid competency fight

Wednesday, February 17, 2021

Joann Bashinsky Golden Flake Heiress – Her Legacy: Stop Guardianship Abuse

By Terri LaPoint

Joann Bashinsky was well-known for her selfless generosity and philanthropy. She was heiress to the sizable Golden Flake potato chips fortune. She had fame, fortune, friends, and a good heart. Yet, none of that was enough to protect her from becoming still another victim of elder abuse via the manipulation of guardianship and conservatorship laws. Sadly, she spent her final year and a half on earth fighting a fierce battle for the simplest thing — control over her own life.

All it took was for a couple of disgruntled former employees to file a petition with a probate judge (on the same day that they were fired, no less) declaring her to be mentally unfit, and Mrs. Bashinsky’s life was forever changed. With no due process, and without a judge ever hearing a shred of evidence in her defense, complete strangers were appointed to manage her money and given effective control of her life.

Horror stories like hers happen every single day, right here in America. People are thrown into a system that dehumanizes them, stripping them of basic freedoms and human rights, all in the name of “protecting” them. More than 1.5 million adults in the United States are under guardianships and conservatorships, with more than $250 billion dollars a year in assets at stake.

Certainly, some of these cases involve incapacitated elderly adults in need of protection –truly at-risk individuals who have no one to care for them or make decisions for them when they are unable. However, an increasing number of people are falling victim to predatory webs of lawyers, social workers, guardians and conservators — and to corruption in the courtrooms. Much of it is enabled by doctors who are quick to label someone with dementia or Alzheimer’s, even when other doctors disagree with their diagnosis.

It is hard to imagine that lawmakers who wrote laws to protect vulnerable children and elderly adults could have anticipated that those laws would one day become the very tools by which people are taken advantage of, exploited, and even abused. Yet that is where we are today. Through the systems designed to protect them, senior citizens and children alike have become commodities, viewed as dollar signs rather than valued as the precious people they are.

It happened to the philanthropist Joann Bashinsky, and her story is a stark warning for others.

At the age of 88, “Mrs. B” or “Mama B,” as she was affectionately known by family and friends, joined the ranks of a growing club that she never signed up for — Victims of Guardianship Abuse.

Before the day that a Guardian ad Litem (GAL) showed up at her home, Bashinsky had no idea that someone’s freedom could so easily be stripped from them. In that respect, she was just like the many hundreds of people I have spoken with who learned about the almost omnipotent power of civil courts to forever change their lives only after encountering their overreach personally. Like most of the unsuspecting public, she did not realize that what happened to her could happen to just about anyone.

According to Yellowhammer News, the beloved Alabama philanthropist set out “to raise awareness about what is happening to far too many people as they grow older.” She wanted to make sure what happened to her never happens to anyone ever again.

Every person deserves dignity, respect, and freedom, and anyone who threatens those American values should be held accountable. . . . The public needs to know the dangers that I, and all older citizens can be subjected too, all too easily, by people who do not have our best interests at heart.

Joann Bashinsky

“Emergency” Petition Filed by Fired Employees

On October 1, 2019, Bashinsky fired two longtime employees, John McKleroy and Patty Townsend, after they refused to comply with repeated requests to transfer some of her investment money from one company to another.

According to court documents, later that same day the two disgruntled employees filed petitions with the Probate Court of Jefferson County to place Bashinsky under the care of a guardian and conservator “who can make decisions for Ms. Bashinsky and give consent for her care and treatment and manage finances.” They filed both an emergency and a permanent petition with identical allegations.

The petitioners alleged that she could not care for her basic needs and submitted a letter (not a sworn affidavit) from a doctor declaring that she had dementia.

They reportedly accused her of being unwise with her money because she gave large sums to her grandson, her one and only living blood relative. According to Mrs. Bashinsky, the funds were loans, not gifts. One must ask, however, if that is even relevant. Should she not have been able to give or loan her own money to whomever she pleased?

On October 3, 2019, Jefferson County Probate Judge Alan King appointed a Guardian ad Litem and assigned a social worker to her case. All of this happened behind closed doors. Neither Bashinsky nor her staff were aware of any of this.

According to Melanie Myers, Mrs. B’s assistant, they only found out about the guardianship the next day when the GAL walked into the house through the garage, unannounced, and sat down in Mrs. Bashinsky’s office chair, handing them a card which read “Squire Gwin, Attorney at Law.” Mrs. Bashinsky was reportedly never served any papers or court order.

It was the “scariest situation,” said Myers, and it took them all by surprise.

Bashinsky and her staff immediately began researching guardianships and learned that what had just happened to Mrs. B was much more common than the public realizes.

Photo source: Joann Bashinsky’s Facebook page

Different Guardianship Tragedy, Same Judge

Less than two months before the GAL showed up in Bashinsky’s home, retired Alabama schoolteacher Marian Leonard died in a Birmingham area nursing home where she had been forced into unnecessary hospice care under a guardian by Judge Alan King — the very same judge who appointed a guardian and conservator to take over Mrs. Bashinsky’s affairs.

In both cases, Judge King set aside the Power of Attorney documents executed by Ms. Leonard and by Mrs. Bashinsky respectively. The people they legally appointed to represent and defend them were utterly disregarded by the court.

Real News Spark reported extensively on Marian Leonard’s story. See:

It quickly became clear that this was not going to be a simple fight to clear up a misunderstanding. Instead of relaxing and enjoying her twilight years, Mrs. Bashinsky was plunged into the fight of her life.

Dementia or Convenient Diagnosis?

Real News Spark asked Melanie Myers if she had seen signs of mental decline in Mrs. Bashinsky. Myers asserted that Mrs. B was very logical and knew how to take care of herself. In fact, there were times the much younger assistant would forget a name, and Mrs. Bashinsky would laugh and remind her of the name. She told Melanie:

Well, I have an 89-year-old brain, but I think it works pretty well!

The petitioners’ allegations to the contrary, she reportedly remained quite capable, and she continued to dress well. She enjoyed reading as well as playing Scrabble and bridge with her friends.

Bashinsky went through extensive testing and consultations with her personal doctor, a geriatrician, and a neurologist –all of whom confirmed that she did not have dementia. According to Yellowhammer News, “[s]he additionally underwent psychological testing from renowned University of Alabama psychologist Dr. Rebecca S. Allen, who reportedly concluded that Bashinsky did not suffer from dementia.”

These testimonies were never heard by the probate court. At the hearing for the “emergency” petition on October 17, 2019, Judge King disqualified Bashinsky’s attorneys because the former employee petitioners argued that the attorneys had represented both Bashinsky and her grandson in previous matters. The court did not permit her to retain new counsel, thus none of Bashinsky’s evidence of her mental competency was allowed to be presented to the court.

Bashinsky was denied due process, and the court appointed both a guardian and a conservator to manage her affairs.

All too Common Scenario

Unfortunately, this is an all-too-common practice when dealing with either guardianship issues or Child Protective Services. I have investigated hundreds of cases where a family court or a probate court takes the word of one doctor over several doctors, as many as a dozen, who disagree with a diagnosis or conclusion by the doctor upon whose word someone’s freedom is taken away or a family is ripped apart.

There are often cases where social workers or guardians prefer to work with specific health providers who “find” the way they want them to. Alabama attorney Lisa Chasteen once testified to former Governor Bentley’s DHR Task Force that an attorney for the state complained in a court hearing that a particular provider did not “find the way we want them to,” and thus rejected the services of that provider.

Any exonerating evidence is often either ignored or not allowed to be heard by the court. It is so common that in 2017 Arizona state lawmaker Kelly Townsend wrote an amendment to SB1003 which sought to prohibit DCS workers from “knowingly influencing the outcome of a matter before a juvenile court or DCS” by:

  • Lying about a matter
  • Withholding material information;
  • Fabricating evidence; or
  • Failing to disclose known exculpatory evidence

Such has been the experience of a significant number of families whose stories I have covered over the years, both of children taken by Child Protective Services and of adults taken under court-appointed guardianships.

What about the Children?

“Mel, how are we ever going to pay for the kids to go to school?” This was the first thing Bashinsky said after learning that a conservator would be seizing control of her finances, Melanie Myers told Real News Spark. With tears in her eyes, Melanie said that Mrs. B wasn’t concerned about herself — she was worried about the children and young people she might no longer be able to help through her philanthropic work.

In addition to being a huge supporter of the children of the Big Oak Ranch, one of her greatest joys in life was helping send young people to college who would not otherwise be able to afford it. Her parents had not been able to pay for her college education. According to, when she was able to go to college, she “made a vow that if I ever got any money, I would send any kid to school that wanted to go.” She held true to her word. She and her late husband, Sloan Y. Bashinsky, established the Bashinsky Foundation to provide college scholarships for young people. She has “personally contributed more than $17 million in scholarships, school supplies, and academic accessibility over the years.”

Joann Bashinsky poses before a portrait of her late husband, Sloan Y. Bashinsky, founder of Golden Flake Foods. Photo source: Joann Bashinsky’s Facebook page.

Conservatorship Means Strangers Controls the Money

After the conservator was appointed, Bashinsky no longer had control over the way her money was spent. Mrs. B was a stickler for paying her bills on time, Myers explained. She was very conservative and responsible when it came to her finances. Once the conservator was involved, things did not flow smoothly. The whole ordeal became very costly. Bills that were normally paid as soon as they came in were no longer paid promptly, causing much stress for Bashinsky.

The conservator did not make the same kinds of financial decisions that Bashinsky would have made. There was one significant bill which the conservator reportedly refused to pay, even though services had already been rendered. Her grandson ultimately had to pay the bill for her. He was reportedly not reimbursed.

The purported purpose of a conservator is to protect a ward’s money, but many times a senior citizen’s estate is whittled away once their lives and fortunes are taken from them. Lonnie Brennan, editor of the Boston Broadside, calls the process, “Isolate, Medicate, Liquidate.” He covered a series of guardianship abuse cases in the Boston area where court-appointed guardians and conservators destroyed the lives of several elderly Bostonians. In the case of Marvin Siegal, a well-to-do attorney, agents of a probate court whittled his estate of over $6 million down to less than $2 million in just 6 years.

Supreme Court Decision Addresses Emergency Petition, Not Permanent One

Bashinsky and her grandson had the resources to fight back, and fight back they did. They took the case to the Alabama Supreme Court, arguing that her due process rights were violated because the probate court disqualified her attorneys and did not allow her evidence to be heard.

The Supreme Court agreed that her rights were “egregiously violated,” and the emergency petition was dismissed on July 3, 2020. Newspapers reported the good news that she was “back in control of her money.”

However, the guardianship troubles were not over. There were two petitions filed simultaneously — the emergency petition and the permanent petition. Both listed the same allegations, but the lower court had only ruled on the emergency petition. That was the decision the Alabama Supreme Court overturned on July 3. The permanent petition had not yet come to trial. There was no ruling. Therefore, the Supreme Court had no ruling to set aside.

Mrs. Bashinsky had only regained partial freedom. With the permanent petition still looming over her head, she had additional court battles to fight. She was very concerned that they would end up isolating her from her loved ones. There were still endless meetings with lawyers, and she continued to lack the same control over her life and finances that she had before October of 2019. 

Joann Bashinsky spoke out about Elder Abuse in this short documentary in November 2020.

Never Ending Battles Take Their Toll

“Mrs. B was one of the strongest people I’ve ever met,” Myers told Real News Spark. Her faith in God kept her going during many long days surrounded by attorneys fighting simply for the right to do the things she worked hard for all of her life. Through it all, she would remind those around her that “God is in control,” and “God always has the final say.” Her hope was that her story would make a difference for others.

Even so, during the last month or so of her life, Myers said she could see that Mrs. B was mentally and physically tired. She confided in her assistant that the fight was really beating her down. She was under a great deal of stress during her final weeks.

In a twist of irony, the petitioners who started all this by declaring that Bashinsky was incompetent to make financial or other decisions were now reportedly demanding that she make huge financial decisions about her assets. Citing concerns that the Biden administration might eat up the estate in taxes, they wanted her to liquidate the family trust by December 31, 2020. During the week before and after Christmas, there were many long, stressful meetings demanding Mrs. Bashinsky’s presence.

Facebook photo from Joann Bashinsky’s last Christmas

Joann Bashinsky suffered a heart attack on Saturday, January 2, 2021, and died in the hospital the next day.

Though one might think the predators pursuing her estate might give her grandson and loved ones space to grieve the loss of their beloved “Mama B,” the petitioners stooped to a new low. Yellowhammer News reported that, during her memorial service on Friday, January 8, “she was slapped with new hostile motions in court from the petitioners. Mourners were reportedly stunned when some of them simultaneously received phone alerts that notice had been served of the motions.”

The court battles are not over. There is a new judge, and the fate of the estate has not yet been determined. The greed for control over Joann Bashinsky’s fortune which made the last season of her life very difficult has not ended with her death. Those who loved her in life are forced to continue fighting for her wishes. She told multiple sources that she wanted her legacy to be that she made people aware of elder abuse and that she stopped it.

Prayer and Action Sparks

I remember when I first heard about Mrs. Bashinsky’s story, I sensed that this would be the story that God would use to lead to the end of guardianship abuse. I am very thankful that I had the opportunity to tell her that before she died. I pray that this, indeed, will be her legacy, and that her story helps bring an end to predatory guardianship practices. I pray that God’s heart for justice and restoration will be released in our land.

Now, it is up to us, to you, dear reader, to pray, to share her story, and to act. Call your legislators. Support the work of those who fight for families against abuse through guardianships and corrupt courts.

What happened to Joann Bashinsky, a beloved philanthropist of substantial means, can and does happen to people all over this country, rich and poor. Instead of being able to enjoy their twilight years, their lives are being torn apart with endless legal and court wranglings by predators who do not value them as people. Laws, systems, and courts designed to protect our children, families, and elderly are being manipulated to deprive people of their basic human rights. It is time to say, “no more.”

As Martin Luther King, Jr., said,

Injustice anywhere is a threat to justice everywhere.

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Local attorney disciplined

ASHLAND A high-powered local defense attorney — visible throughout the community with billboards that read “Just because you did it doesn’t mean you’re guilty” — has agreed to a one-year probationary period in lieu of a six-month suspension from practicing law.

At the center of the consensual discipline order are two cases: a personal injury case and the manslaughter case involving a former deputy jailer charged in the 2018 death of a Boyd County Detention Center inmate.

In an order penned Jan. 21 by the Kentucky Supreme Court, Attorney Sebastian M. Joy agreed to the consensual discipline order in November 2020 in connection with a state bar inquiry that found he overcharged Brad Roberts, one of the deputy jailers indicted in the death of 40-year-old Michael Moore.

According to the order, Joy agreed to represent Roberts for $35,000 with $10,000 up front. Joy then “visited” Roberts on Christmas Eve 2018 in the Fayette County Jail — however, jail records and Roberts himself do not corroborate the visit, leading the inquiry to conclude the meeting never happened.

For that visit, Joy charged $1,600 — which includes travel expenses, according to the order.

After Roberts was arraigned, Joy motioned to allow part of his cash bond to be secured with stocks and bonds, after Roberts’ uncle agreed to put them up, on the condition the bond was in his name, records show. However, when Joy made the motion, he never mentioned the uncle, according to the order.

The uncle had to turn around and get a lawyer of his own to fix it up in his name, so the stocks and bonds couldn’t be attached to any liens incurred by Roberts from a lawyer or a creditor, the order said.

The inquiry concluded Joy did not ask to use securities in the uncle’s name, because he knew if he did he wouldn’t be able to use them as a way to collect his money, according to the order.

After that, Roberts fired Joy — Joy sent a bill that deducted all of the $10,000 his client put up front, and left a balance of $1,386, records show.

The personal injury case involved an Ohio man who stated Joy did not keep him abreast of key developments in his case, including a partial summary judgment, according to the order. In that case, Joy was charged with failure to adequately represent that client.

As part of the terms of his probation, Joy agreed to refund Roberts $5,000 and attend ethics  and other legal trainings at his own expense, according to the order.

All the judges agreed to the order — newly seated Judge Bob Conley recused himself from the case.

Joy offered the following comment regarding the order:

“I’m glad to put this two-year ordeal behind us, it’s unfortunate the incident occurred. I have already met over half the conditions that were imposed upon me on my consensual discipline order. I will continue serving my clients ethically and aggressively to the best of my abilities,” Joy wrote in a text message.

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Oregon DHS study: Financial exploitation of seniors costly, still difficult to prove

SALEM, Ore. (KTVZ) – Family members or those in a close, trusted relationship are responsible for nearly half of substantiated financial exploitation cases of older adults in Oregon -- and the success of all investigations often depends on access to records and involvement of law enforcement, according to a new study.

The study by the Oregon Department of Human Services Office of Aging and People with Disabilities found that financial exploitation and neglect are tied for the lowest survivability rate of all abuse types, and at least 13 percent of the victims in this study had to immediately seek some sort of governmental benefit as the result of the abuse. 

This included Medicaid to cover the cost of residential care and property tax deferral, energy as well as utility and food assistance.

These findings are part of a comprehensive study of financial exploitation of older adults in Oregon. The study is a follow up to Oregon’s 2014 retrospective study on financial exploitation, and helps provide a better understanding and picture today of financial abuse in Oregon, DHS said Monday.

The study contains analysis of financial exploitation from more than 600 cases investigated statewide in 2019. Staff reviewed these cases while documenting what has changed, what has stayed the same, where did interventions applied after 2014 work and where is focused effort still needed. 

Some of the other findings include:

  • In 2019, there were 4,152 investigations of alleged financial exploitation in Oregon conducted by the ODHS Office of Aging and People with Disabilities. This report pulls from some of those cases. In the 2014 report, 400 cases of the 2,929 reports involving financial exploitation were reviewed.
  • Family members and others that are in a close trusted relationship with the victim continue to be the highest percentage of perpetrators using means of undue influence, deceit and threats to steal from the victim.
  • The average quantifiable loss to a victim in this year’s report was $16,905.  In 2014, the average loss per each substantiated case of monetary theft was $24,915.
  • The tools that the Legislature has given financial institutions to limit losses are working, including the passing and implementation of House Bill 2622 in 2017. This has given these institutions a tool to very quickly stop the financial losses on some of these cases.
  • There are many other losses to victims such as personal property, unauthorized credit card use, and medication that can be more difficult to quantify financially.
  • Victims are more often women than men by nearly a 2:1 margin.
  • The average age for both alleged and confirmed victims of abuse is 75.9 and 77 respectively. In 2013, the average age for a confirmed victim of financial exploitation was also 77.
  • Financial institutions and case managers are the most frequent reporters of financial exploitation making up more than a third of all reports received and subsequently investigated.
  • Bankers are not only well positioned to identify financial exploitation, but they often identify other types of abuse and self-neglect as well.  In 2019, they reported more than 200 other concerns that were investigated including 150 cases of possible self-neglect and multiple cases of physical and verbal abuse. 

While there still is a lot of outreach to be done, progress is being made through education and outreach to financial partners and law enforcement stakeholders. The ODHS Office of Aging and People with Disabilities has teamed up with these stakeholders to continue to make an impact on this issue.

The primary barrier to investigating these cases thoroughly and effectively continues to be the inability of investigators to obtain necessary financial records.

“Financial exploitation has a major impact on older adults, especially those who may be isolated or lack social support systems,” said Marie Cervantes, ODHS Adult Protective Services administrator. “This publication offers updated findings so that we may more closely examine this very costly, prevalent and disturbing form of abuse of our most vulnerable Oregonians.”

Mike McCormick, interim director of the ODHS Office of Aging and People with Disabilities added, “With the aging demographics here in Oregon and nationally, financial exploitation is unfortunately forecast to grow. It’s critical that we, as a society, devote all the tools and resources to protect vulnerable adults from exploitation.”


To read the study in its entirety, go to: Financial Exploitation in Oregon: A Look at Community Based Investigations During 2019

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Tuesday, February 16, 2021

I-Team: Troubling History Of 911 Calls From Watertown Long-Term Care Facility

The I-Team has learned between 2019 and 2020 there were 272 calls to 911 from the Vero Health & Rehab of Watertown. WBZ-TV's Cheryl Fiandaca reports. 


New Elder Abuse Fatality Review Team will focus on protecting the elderly

by Austin L. Miller

The state attorney for the 5th Judicial Circuit is putting together a team that will look at elderly deaths in this area.

The move comes after state legislators passed a bill authorizing each judicial circuit to create an Elder Abuse Fatality Review Team.

Legislators' goal is for the team to examine circumstances surrounding an elderly person's death, see if the death could have been prevented, and identify solutions or programs that could save someone else in the future.

The team can only review closed cases, not active or criminal cases. 

State Attorney Bill Gladson said he has contacted the sheriff's offices for the circuit's five counties — Marion, Lake, Sumter, Citrus and Hernando — to gauge their interest. Gladson said all five agencies agreed to participate. 

The five counties have more than 1.2 million people, according to State Attorney's Office officials.

State Attorney Bill Gladson
Gladson, a longtime prosecutor who became state attorney last month, said the process should be an eye opener for everyone because they can learn what does and doesn't work. The team can prevent future elder abuse or even deaths and provide resources to those in need. The team also will give recommendations to legislators who can then craft and explore laws to protect the elderly.

The team will consist of law enforcement personnel, prosecutors, health care providers and others who work close with the elderly. It will be required to submit a report on its findings to the Department of Elder Affairs, which will then send a summary report to the governor, Legislature and the Department of Children and Families.

According to the bill, which was signed into law by Gov. Ron DeSantis last year, in 2018, the state had an estimated 4.3 million people age 65 and older. It's believed that by 2030, that number will rise to approximately 5.9 million. State officials believe the 5.9 million figure will represent about a quarter of the state's population.

Elderly abuse occurs in private homes, nursing homes, long-term care facilities and other places, according to a summary analysis of the bill. Some of the people who commit these types of abuse are relatives, friends and neighbors who sometimes are companions or act as the elderly person's caregiver.

According to the bill, research has shown that elder abuse is often not reported because victims fear their safety may be compromised. They also fear being left alone or losing their caregiver's trust.

DCF reports that in fiscal year 2018-19, the agency received more than 37,000 reports of abuse, neglect or exploitations of people age 60 and older. The department investigated 252 deaths where the death was allegedly cause by abuse and neglect, according to information in the bill.

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