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.
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."
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.
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.”
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.”
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.
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.
The context
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.”
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.”
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.
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.
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.
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: bit.ly/3benfB8
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.
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 Al.com,
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.
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.
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.
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.”
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.
