Saturday, September 25, 2021

More than $150K awarded to victims of former local attorney accused of stealing $2M


by Parker Perry

Sep. 22—Clients of a former local lawyer received compensation from a fund that helps victims of attorney thefts after their lawyer pleaded guilty in a case accusing him of stealing about $2 million.

"Former clients of former attorney Brian M. Wiggins were reimbursed a total of $154,175 as a result of Wiggins' theft of client funds. Wiggins resigned from the practice of law in Ohio, with discipline pending, in April 2021," an article on Court News Ohio says. Court News Ohio is a service of the Office of Public Information of the Supreme Court of Ohio.

The Board of Commissioners of the Lawyers' Fund for Client Protection voted to award the money earlier this month, according to the website. The money is from registration fees paid by Ohio lawyers.

Wiggins was sentenced to serve five years in prison earlier this year after pleading guilty in Greene County Common Pleas Court. He was also ordered to pay back about $1.9 million in restitution.

He is currently incarcerated with the Ohio Department of Rehabilitation and Correction.

Wiggins allegedly mishandled several estates or trusts he represented and spent the money on cosmetic surgeries, child support, gambling, property, a boat and jewelry.

"The bulk of the charges in the indictment allege fraudulent activity related to transfer of estate and/or trust funds from the estate of a man named Ronald Lentz," Greene County prosecutor David Hayes said during a March 2020 media briefing.

Lentz, of Beavercreek, died in August 2018. Wiggins was the attorney of the estate as well as the trustee of the trust, which were valued at more than $3 million, Hayes said. The majority of the estate was to benefit St. Jude Children's Research Hospital and Smile Train, a nonprofit for children with cleft lips and palates.

Full Article & Source:

Romance Scams Surged For Seniors During Pandemic

by Ted Knutson

Romance scams surged for seniors during the Covid-19 pandemic, the Senate Aging Committee was told today.

Losses reported to the Federal Trade Commission alone by the elderly from phony suitors rose to $139 million last year from $84 million in 2019.

The loneliness and isolation during the pandemic made the elderly particularly vulnerable because they were longing for human contact and a friendly voice on the phone or a beckoning message on Facebook became harder to turn away from, said Aging Committee Chair Bob Casey (D-PA).

“Social isolation isn’t new for seniors, but the pandemic made it that much worse. Fraudsters saw an opportunity and pounced.,” the Senator said.

He added decrease in contact from family and friends made it easier for small scams even now to balloon into big scams including peddling fake cures and stealing funds.

Speaking to the large increase in romance scam perpetrators targeting the elderly, the Ranking Republican on the Committee, Senator Tim Scott of South Carolina noted seniors are isolated and lonely and may be more susceptible to this type of fraud and this type of scam.

Romance scams were the biggest source of fraud reported to the FTC by the elderly in the 60-69 and 70-79 age groups.

The frauds were an important driver of the doubling of bank transfers and payments by older adults in 2020, and reports of cryptocurrency payments more than tripling,

FTC Bureau of Consumer Protection Associate Director Lois Greisman told the Aging Committee hearing.

The FTC official added many people reported that romance scammers used the pandemic to explain requests for money or their inability to meet in person.

She explained in romance scams fraudsters create fake profiles, establish trusting relationships, and then trick consumers into giving or loaning them money.

Romance scams were among the frauds causing the highest losses for seniors, National Consumer Law Center Attorney Odette Williamson said:

“Widespread illness and death combined with the social isolation and distancing measures brought on by the COVID-19 pandemic created fertile ground for the proliferation of certain scams primarily aimed at older adults.”

The Better Business Bureau Institute for Marketplace Trust found romance scams romance scams were the riskiest types of fraud during the pandemic for people 55 through 64.

Making romance scams particularly difficult, Senator Rick Scott (R-FL) said it’s difficult for law enforcement to find the perpetrators.

Kate Kleinert, a victim who testified at the hearing, claimed she reported the fraud to police but they wouldn’t listen to her.

The widow told the Committee she was frustrated by the lack of options she had to recover the $39,000 she gave the suitor imposter or the ability to hold him responsible.

“$39,000 to some people is not much, but for someone in my position it’s a great deal. I am still paying for that today because I can’t get things repaired at the house. I’ve had no air conditioning this summer, my refrigerator is off, and my stove is off, the victim relayed.

She said the loss that hurt her most wasn’t the money, but “losing his love and losing the family I thought I was going to have and what my new future was going to be.”

Full Article & Source:

Casey pushes bill to have banks, businesses aid seniors in detecting scams


by Julian Routh

Americans age 60 years and older have lost more than $141 million since the beginning of last year in pandemic-related scams, U.S. Sen. Bob Casey’s aging committee revealed Thursday, as they highlighted the case of a Pennsylvania senior who was tricked into wiring money to a man because she believed he was a suitable romantic partner.

In a hearing of the Senate Special Committee on Aging, Mr. Casey, the chairman, said seniors have been especially vulnerable to scams since the start of the COVID-19 pandemic because many have isolated, been cut off from family and friends and have longed for human contact — making it harder to turn away from potential scammers.

“Fraudsters saw an opportunity and they pounced,” Mr. Casey said. “They preyed on the fear and the uncertainty surrounding the disease as well as the loneliness and isolation that resulted from the pandemic.”

America’s seniors reported nearly 26,000 pandemic-related scams since Jan. 2020, Mr. Casey’s office said, and the senator noted that the pandemic allowed small scams to balloon into big ones. Eighteen months later, the federal government is still warning of con artists peddling fake cures for the virus, charging lofty sums for protective equipment and trying to steal stimulus checks and unemployment benefits.

Older adults reported much higher individual median dollar losses than those aged 20 to 59, according to the testimony by an official with the Federal Trade Commission, and those 80 years or older reported the largest median losses of $1,300.

Mr. Casey used the hearing to advocate for passage of the Stop Senior Scams Act, a bill he’s helped introduce to create a federal advisory group that will give information and tools to banks and other businesses on how to spot and prevent scams.

The aging committee released a new report on Thursday on fraud, claiming — among other statistics — that “romance scams” have been on the rise in recent years and have accelerated during the pandemic. These involve scammers using fake dating profiles to convince “love interests” to send them money, the report says — and was the result of $139 million lost in 2020.

The committee heard testimony from a victim of a romance scam, a Glenolden, Delaware County, resident who was a widow of 12 years before finding love on Facebook last year — or so she thought.

Kate Kleinert told the committee she messaged for awhile with a man who said he was a surgeon working in Iraq. He eventually convinced her to send gift cards and money, that culminated with at $20,000 request.

Ms. Kleinert said she sent the man a total of $39,000, and it all ended up to be a fake connection.

“I am still paying for that today because I can’t get things repaired at the house. I’ve had no air-conditioning this summer, my refrigerator is off and my stove is off. I have been leaning on my family, my sisters especially, to get me through this,” Ms. Kleinert said. “But the loss that hurts the most was losing his love and losing the family I thought I was going to have and what my new future was going to be.”

Mr. Casey’s committee runs a toll-free hotline for those who want to report suspicious activities and potential scams, staffed Monday through Friday during business hours. The number is 1-855-303-9470.

Full Article & Source:

Friday, September 24, 2021

Lansing nurse pleads guilty to over-drugging dementia patient, texting photo to co-worker


by: Brian Dulle

LEAVENWORTH, Kan. — A 37-year-old Atchison, Kansas woman accused of over-drugging a dementia patient and then texting a co-worker a photo has plead guilty.

On Friday, Jennifer Lynn Reavis was convicted of endangerment (or recklessly exposing another person to a danger of great bodily harm or death), unlawful administration of a controlled substance, and battery. 

Charges were filed against Reavis after an investigation by the Lansing Police Department at the Twin Oaks Health and Rehab Center in May 2019.  

Administrators contacted police after finding out that a resident had been given evening and bedtime medications at the same time by a nurse, along with an Ativan and a Benadryl, which was not in the resident’s schedule of medications and are known to cause a person to be drowsy.

The nurse was identified to be Reavis, who gave the resident the medication. Reavis also sent a text message to the oncoming night shift nurse that included a photo of the resident slumped over in a wheelchair and appeared to be asleep. The caption along with the picture in the text message read, “Your welcome! I hope she is asleep most of the day tomorrow.” A second text message along with the photo read “Hint hint.”

Reavis admitted to giving the resident the medication and sending the text message. She indicated the resident had been trying to leave the facility.

After being given the medication, the resident, who suffers from severe dementia, began vomiting and became lethargic and eventually needed to be taken to the hospital to undergo treatment.

At this time Reavis is out on bond awaiting sentencing.

Full Article & Source:
 

Rock Island attorney disbarred after pleading guilty to drug charges

by Emily Andersen
 
A Rock Island attorney was disbarred by the Illinois Supreme Court during the September 2021 Term of Court after pleading guilty to two drug charges. Two other local attorneys had their licenses suspended during the term.

John George Steckel, of Rock Island, was sentenced in April to 60 months of probation for one charge each of possession of controlled substances and methamphetamine delivery.

Steckel had his license suspended for 18 months in 2019. His disbarment was retroactive to his interim suspension, according to the September 2021 case summary list released by the Illinois Supreme Court.

Steckel had been licensed since 2000.

Two other local attorneys, Stephen Thomas Fieweger and Mark Vincent Kelly, were also listed in the case summary report.

Fieweger, of Davenport, was licensed in both Illinois and Iowa. His Iowa license was suspended for 30 days for failing to communicate with a client, collecting an unauthorized fee in a social security disability benefits matter, neglecting a client's case and mishandling client funds. The Illinois Supreme Court decided to impose the same discipline and suspended his Illinois license for 30 days as well.

Fieweger has been licensed in Illinois since 1987 and in Iowa since 1989.

Kelly, of Alpha, Ill., had his Illinois license suspended for three months. He reportedly misappropriated $2,230 in funds he had agreed to hold in escrow pursuant to his work as an attorney agent for a title company. No client lost any money because of Kelly's misconduct, however. Kelly has been licensed in Illinois since 1987.

Both suspensions are effective on Oct. 14.

Full Article & Source:

Home health aide accused of stealing $32K from elderly couple in Lewis County

A home health aide from Port Leyden is facing charges after allegedly stealing more than $32,000 from an elderly couple she was hired to care for in Lewis County.

The Lewis County Sheriff’s Office started investigating 35-year-old Stacey Dixon in October of 2020.

According to the Lewis County Sheriff’s Office, from March to October of 2020, Dixon allegedly charged more than $17,700 on the couple’s credit card, endorsed and cashed forged checks for more than $8,600 from the couple's checking account and received checks from their personal account that she was not entitled to in the amount of $6,200.

Dixon was arrested on Sept. 22 and charged with 16 counts of criminal possession of a forged instrument and three counts of grand larceny, all felonies.

She was arraigned and released, and is scheduled to appear in court at a later date.

Full Article & Source:

Thursday, September 23, 2021

Bipartisan senators to hold hearing on 'toxic conservatorships' amid Britney Spears controversy

By Celine Castronuovo


Sens. Richard Blumenthal (D-Conn.) and Ted Cruz (R-Texas) on Tuesday announced plans to hold a hearing next week on “toxic conservatorships” as the recent legal battle to end pop singer Britney Spears’s controversial court-ordered agreement has fueled bipartisan calls for federal reforms. 

Blumenthal, chair of the Senate Judiciary Subcommittee on The Constitution, tweeted that he and Cruz, the subcommittee’s ranking member, would be hosting a hearing entitled, “Toxic Conservatorships: The Need for Reform,” apparently referencing Spears's hit song “Toxic.”

“Britney Spears is one of hundreds of thousands of Americans in conservatorships that too often restrict their basic human rights,” Blumenthal wrote.

The announcement did not make mention of any specific individuals scheduled to testify at the hearing. 

The Spears case has brought together lawmakers from both sides of the aisle as questions have been raised about whether conservatorships can cause undue harm for individuals who have their financial affairs or daily life placed under the control of a court-appointed guardian. 

The 39-year-old singer spoke out against her conservatorship in bombshell testimony in a Los Angeles Superior Court hearing in June, during which she called the 13-year court agreement “abusive," adding that it had left her "traumatized" and in "shock.” 

In June, GOP Reps. Matt Gaetz (Fla.), Burgess Owens (Ohio), Marjorie Taylor Greene (Ga.) and Andy Biggs (Ariz.) sent a letter to Spears inviting her to testify before Congress. 

Democratic Sens. Elizabeth Warren (Mass.) and Bob Casey (Pa.) also cited Spears’s comments in court in a letter calling on Health and Human Services (HHS) Secretary Xavier Becerra and Attorney General Merrick Garland to provide more data on the U.S. conservatorship system.

Spears’s father, Jamie Spears, had repeatedly resisted stepping down as her conservator, though he reversed course in August by filing to remove himself from the court agreement, noting that while he believed there were “no actual grounds for suspending or removing” him, he did not “believe that a public battle with his daughter over his continuing service as her conservator would be in her best interests.” 

Her father went further earlier this month by filing to end the conservatorship, writing in a petition that “recent events” have “called into question whether circumstances have changed to such an extent that grounds for establishment of a conservatorship may no longer exist.” 

Days after the petition, the pop singer, who had previously said she had been barred from getting married or having more kids under her conservatorship, announced news of her engagement to her longtime boyfriend. 

Full Article & Source:

Wallingford attorney who stole $60G disbarred

Tendered resignation letter in August

 


By Alex Rose
 
PHILADELPHIA — A suspended Nether Providence attorney sentenced in federal court earlier this year on charges of wire fraud, Social Security fraud and theft from an employee benefit fund has been officially disbarred, according to a Pennsylvania Supreme Court order issued Friday.

Daniel Vermeychuk, 66, of the Wallingford section of Nether Providence, pleaded guilty in November before U.S. District Judge Eduardo C. Robreno and was subsequently temporarily suspended from practicing law in the commonwealth by the Pennsylvania Supreme Court Disciplinary Board.

He was sentenced in June to serve three years of probation and fined $40,000. Vermeychuk was also ordered to pay restitution of $59,491, pay a $600 special assessment and serve six months of his probation on house arrest.

Vermeychuk was charged with four counts of wire fraud, one count of Social Security fraud and one count of theft from an employee benefit fund in March 2019 following an investigation by the Social Security Administration’s Office of Inspector General, the Department of Labor’s Office of Inspector General and the United States Postal Inspection Service.

According to an indictment, Vermeychuk obtained nearly $60,000 worth of Social Security and pension benefit funds intended for a deceased tenant of an apartment building owned by his wife.

The tenant, identified as “J.B.” in the indictment, had added Vermeychuk to a bank account receiving the SSA and pension payments in 2003, according to the indictment. Vermeychuk found the tenant dead inside his apartment in July 2013, but never informed SSA or the pension plan of J.B.’s death.

Payments from both continued to go into the account between July 2013 and April 2017, according to the indictment. Vermeychuk withdrew these funds, totaling $59,491, and converted them to his own use, according to the indictment.

Vermeychuk tendered an unconditional resignation to the disciplinary board in August indicating restitution, fees and costs associated with his conviction have been paid. He also acknowledged that the underlying facts of the indictment are true and that he could not successfully defend against charges of professional misconduct.

The disbarment was made retroactive to the date of Vermeychuk’s Feb. 13, 2020, suspension at his request. He may apply for reinstatement after five years from that date under state rules for disciplinary enforcement.
 
Full Article & Source:

Woman accused of stealing from nursing home


MASSENA, New York (WWNY) - A Massena woman is accused of burglarizing a nursing home she used to work for.

State police say 29-year-old Narissa Joubert allegedly stole property when she unlawfully entered the Highland Nursing Home in Massena on September 13.

She was charged Sunday with second-degree burglary.

Joubert was arraigned in Massena town court and released under probation supervision.

Full Article & Source:

Wednesday, September 22, 2021

The VA Fiduciary Program: A Wretched Hive of Scum and Villainry.

by Chris Attig

I would like to talk about the VA Fiduciary Program.

I often refer to this program as the “Fraud-uciary” program because of the problems associated with it.

It’s time to start clamoring for change about this process, and this is a very small step in that direction.

Why?  I think Obi Wan Kenobi Sums up the VA Fiduciary Program better than anyone:

What is the VA’s Fiduciary Program all about?  

Here’s how it works, generally.

The VA decides that a Veteran is not mentally capable of managing their own finances.

In many of the cases I reviewed, there was no medical or clinical evaluation to support this decision. In those cases where there was a medical or clinical evaluation to support “incompetence”, the VA did nothing to appoint a “guardian of the person” – leaving disabled Veterans with 5 or 6 figure fiduciary accounts to wander the streets, miss doctor appointments, have no access to necessary prescription medications – and in some cases, without food, clothing or shelter.   Here’s a story about one of those Veterans that the VA abandoned.

After making that decision, the VA appoints a “fiduciary” to manage the finances of that Veteran.  The VA will reach into the bank accounts of the Veteran, taking control of the Veteran’s savings and giving it to the “Fiduciary”.

In one case we are looking at, the VA (unlawfully) took the Social Security payments of a Veteran’s wife and gave those to the Fiduciary as well.

The fiduciary is most commonly someone that the Veteran does not know, and who does not know the Veteran.

The fiduciary is allowed to take up to 4% of the Veteran’s savings and monthly benefits as a ‘fee’ for managing the Veterans finances.

Why is this a problem?

To answer this, let me point out some of the abuses of the VA Fiduciary Program – I assure you, they are the norm and not the exception.

I have yet to find a fiduciary (other than Veteran Family members and State Court Appointed guardians) that  properly managed a Veteran’s money.

Sometimes the mistakes are small, sometimes they are not:

1) Joe Phillips, a Houston attorney, and his wife.  This “fiduciary” is currently pending a federal criminal trial in Houston for allegedly scheming (with his wife) to steal over $2 million from the bank accounts of the Veterans whose finances they were to manage.   This scheme is alleged to have started in 2003 – meaning it took the VA and the Dept. of Justice over 8 years to audit the fiduciary, identify the alleged fraud, and charge these individuals for their alleged malfeasance.  Read the story here on the Department of Justice website. (As of 2014, I believe these 2 individuals are serving time in Federal Prison – but that may not stop the VA from re-appointing them…see Example #5, below)

2)  Read about this Central Texas Veteran whose family had to pawn their possessions because the VA’s appointed “fiduciary” appears to refuse to communicate with the Veteran and refuses to provide the money the Veteran needs to take care of himself: Veteran’s Family Asking About Their Money.

3) Read about this Florida Veteran whose fiduciaries are taking a percentage of all of his money – not just his VA benefits.  Vets lose benefits as VA covers up mistake.

4) Read about this Tennessee Veteran whose fiduciary allegedly embezzled over $100,000 in money from the Veteran and the Veteran’s estate:  Surviving Family members fight for Memphis Veteran’s Benefits.

5) Read about how the VA appointed a convicted felon (!) to manage this Veteran’s money. VA Hires Convicted Felon to Manage this Veteran’s Money.

6) Updated from 2014: Read the VA OIG report on the Eastern Fiduciary Hub. It’s like Mos Eisley out there – a wretched hive of scum and villainry

I could go on with more – and worse – examples.

It is my opinion that the VA Fiduciary Program needs to be gutted completely.  

Why?

There is a process under every state’s guardianship  law for every Veteran.

This process involves the Veterans’ family, is managed and audited by the state court, and ensures that the Veteran’s physical, medical and other needs are being met (something that the VA’s Fraud-uciary program falls woefully short on).

Here is what should happen to effectuate change in the VA:

1) States should pass laws regulating the conduct of individuals who serve as fiduciaries of that state’s veterans.

These laws should include the appointment of special prosecutors at the state and county level to investigate and prosecute fraud, embezzlement, theft, etc., of Veteran’s money and property.   The Veterans Law Blog will draft Model Legislation for your State to use: contact Chris Attig (Support@VeteransLawBlog.org)  if you are a State Legislator who is interested in proposing legislation to protect your state’s Veterans from the VA Fraud-uciary Program.

2) Veterans should challenge the VA’s appointment of any fiduciary that they do not know – immediately!  

In a 2011 Decision issued by the Court of Appeals for Veterans Claims (Freeman v. Shinseki), the court found Veterans should have an opportunity to file an appeal of the VA’s appointment of a fiduciary.

(This is going to be hard because in many cases the VA doesn’t tell the Veteran that they appointed a fiduciary and emptied the bank accounts of the Veteran until months later).

How does the Veteran challenge the decision?

File a Notice of Disagreement with the VA Regional Office just as you would for your disability compensation appeals.

3) Veterans should contact attorneys in their geographical area to ask for help ensuring that the Fiduciary has complied with their own State laws involving the VA Fiduciary’s Duties to the Veteran.  

In many cases, state law provides avenues to take the Fiduciary to State Court and sue in civil court for damages if the VA Fiduciary is mismanaging a Veteran’s money or has breached a VA fiduciary duty to the Veteran.

(This is one reason it is hard for Veterans attorneys to really fix this system – so many of the issues depend on state law, and so few attorneys that represent Veterans have familiarity or working knowledge of State Guardianship laws.  This is one of the drawbacks of the VA not allowing Veterans to retain attorneys prior to an adverse decision.)  

4) If you feel that your fiduciary is stealing money from a Veteran – contact your City and County District Attorney’s Office.

If that doesn’t work, contact your States’ Attorney General’s Office.

If that doesn’t work, contact your State legislators.

If that doesn’t work, contact your Federal legislators.

Keep reaching out to these folks until someone answers and helps investigates whether your VA Fiduciary has committed a criminal act or act(s).

5) Everyone should contact their Federal legislators and ask them to hold hearings into the abuses visited on Veterans by these “fiduciaries”.

Only through these hearings will the legislative needs of our Veterans become clear.

It’s time to scrap the Fiduciary program – Veterans don’t need any more Paternalistic & Government Sponsored Fraud than they already have to deal with.

Full Article & Source:

Suspended Columbus Attorney Caught Practicing Law Now Disbarred


By Dan Trevas

The Ohio Supreme Court today disbarred a Columbus attorney for representing multiple clients with conflicting interests, practicing law while under suspension, and failing to cooperate in a disciplinary investigation.

In a unanimous per curiam opinion, the Supreme Court disbarred John J. Okuley. The Court suspended Okuley in September 2018 for one year with six months stayed for intentionally colliding with a bicyclist while driving, provoking a physical altercation with a doctor who witnessed the collision, and making false statements about the incidents during criminal, civil, and disciplinary proceedings.

The Court denied Okuley’s 2019 request for reinstatement, and he remained under suspension until his disbarment today. The Columbus Bar Association submitted a complaint in 2019 to the Board of Professional Conduct, charging that Okuley committed multiple violations of the rules governing the professional conduct of Ohio attorneys when he conducted business transactions related to his law firm while also concealing his suspension from clients and the public.

The board recommended Okuley be permanently disbarred, and the Court stated it independently reviewed the record and agreed with the board’s proposed sanction

Lawyer Practiced under Suspension, Concealed Actions
Okuley’s brother worked at the Okuley Smith law firm in 2017 and 2018. In February 2018, April Cottle met with the Okuley brothers and hired them to represent her in a trademark-registration matter. Cottle corresponded with Okuley in April 2018, after his brother left the firm.

Cottle did not hear anything about the status of her matter until September 2018, when a secretary at the firm emailed her. Weeks later, Okuley was suspended. Nine days after the suspension, Cottle received an email from Okuley’s email address that copied his brother and the secretary. The email explained her trademark application was rejected, and he provided legal advice on steps to take. The email noted Okuley’s brother could file an amendment and billed Cottle for $300. Okuley later spoke to Cottle about her case and explained the legal options set forth in the email.

At this disciplinary hearing, Okuley denied sending the email, stating he instructed the secretary to send the email to Cottle from his brother’s address. His brother testified he never agreed to continue to represent Cottle, did not prepare the bill, and did not authorize Okuley to send emails on his behalf, noting that he left the firm months earlier. The board found evidence that Okuley sent the email, and that his interactions demonstrated he practiced law while under suspension.

The Columbus Bar Association noted that it sent four letters in early 2019 to Okuley based on its investigation of Cottle’s matter, and biographical information on Okuley’s online business profiles that still listed him as an active attorney.

Okuley did not respond to the letters and testified at his hearing that he was suffering chronic pain at the time as a result of a 2016 auto accident.

Lawyer Does Not Object to Disbarment
The board found Okuley had been previously disciplined, engaged in a pattern of misconduct, committed multiple offenses, failed to cooperate in the disciplinary process, and refused to acknowledge the wrongful nature of his conduct.

The Court noted that after his disciplinary hearing, the board gave Okuley the opportunity to respond to the board’s intent to seek his disbarment and submit character letters on his behalf, but “Okuley did not avail himself of the opportunities.”

The opinion noted that Okuley committed ethical violations before and after his license was suspended. The multiple violations, combined with his failure to acknowledge his wrongdoing, made “permanent disbarment particularly appropriate,” the Court concluded.

2021-0231. Columbus Bar Assn. v. Okuley, Slip Opinion No. 2021-Ohio-3225.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

Full Article & Source:

Don’t Skimp On The Facts – Failure Of Fiduciaries To Make Full Disclosure Of Matters Set Forth In An Accounting May Be Considered Fraud

by Weintraub Tobin

In the recently published case of Hudson v. Foster, 2021 Cal.App. LEXIS 737, the Court of Appeal for the Second Appellate District, Division Five, determined that a former conservatee who discovered that certain transactions in his conservator’s previously approved accounting were falsely reported, was under no obligation to comb through records to verify the truth of the representations made by the conservator in the accounting. The case is detailed with respect to the facts, but it puts fiduciaries on notice that full disclosure of material facts is required, and even slightly skewing the reporting of a transaction can be considered fraud.

Nigel Hudson was severely injured in an automobile accident. He received a settlement of $13,863,000, and a qualified settlement fund was established to receive the settlement proceeds. A voluntary conservatorship was established and Lucas Foster, a friend of Nigel, was appointed as the conservator of the estate. Lucas is a film producer, notable for films such as Mr. and Mrs. Smith, Crimson Tide, and Ford v. Ferrari. Because the settlement funds had not yet been received, Lucas agreed to advance funds for Nigel’s benefit, to be reimbursed when the settlement funds were received. Nigel had the ability to review the conservatorship bank account records online.

When the settlement proceeds were received, the civil court ordered Lucas to pay a total of $1,945,412.43 to hundreds of creditors, including Miracle Mile ($11,250) and LA Litigation ($39,913.25).

In December 2013, Lucas filed a first and final account and a request to terminate the conservatorship of the estate. It is not stated in the decision, but it appears that the conservatorship was terminated because Nigel had sufficiently recovered from his accident to take back the management of his own finances. Lucas reported receiving property totaling $9,489,265.16 and disbursing $4,314,887.38, with more than 1,000 disbursements reported on the disbursements schedule. Notable to the opinion, Lucas also reported in his petition that 17 checks listed on the disbursements schedule were paid to him directly or to his film production company to reimburse him for the funds he had advanced to Nigel prior to receiving the settlement funds. Lucas also reported that there were a few additional entries in the disbursements schedule listing amounts paid directly to Lucas or one of his production companies, and stating that the amounts shown were reimbursement for a specific expenditure made on behalf of Nigel. Lucas also reported that there were debts totaling approximately $300,000 that remained unpaid and that Nigel would take responsibility for payment of these debts upon the termination of the conservatorship.

Three disbursements among the hundreds listed in the schedule were checks issued for payments in the amount of $10,000 to “Miracle Mile Surgical Center,” $31,089.25 to LA Litigation Copy Services,” and $9,839.10 to “Dr. Sam Markzar, DDS.” Nigel and his court-appointed guardian ad litem signed a consent to the accounting and the court entered its order approving the accounting in March 2014.

One week after the accounting was approved, a representative from Miracle Mile contacted an associate of Lucas regarding payment of its bill for services rendered to Nigel. Lucas and Nigel met at a Starbucks and Lucas informed Nigel that the amount owing to Miracle Mile was part of the $300,000 in unpaid debts that Lucas had been unable to negotiate. Lucas informed Nigel that he would obtain a release from Miracle Mile and then the bill would be paid. Thereafter, Nigel never saw a release and Lucas never provided a supplemental accounting listing the bills that remained unpaid.

In October 2014, more than 18 months after the payment date reported in the accounting, LA Litigation signed a document acknowledging receipt of $23,500 in release of all claims against Nigel. Nigel also had an unpaid debt to UCLA which Lucas informed Nigel he could settle for $60,000, so Nigel provided the funds to Lucas. Nigel discovered later that the settlement with UCLA was $54,500, but the difference of $5,500 was not returned to Nigel.

In April 2018, Miracle Mile filed a motion in the civil action to enforce payment of its bill of $11,250, which had been ordered by the court. Miracle Mile alleged that it had sent two letters to Lucas demanding payment, to which it received no response. Four months later, Nigel filed a motion in the probate court to set aside the order approving the accounting on the grounds of fraud and misrepresentation of a material fact. Nigel claimed that he was unaware of any fraud related to the accounting until after Miracle Mile filed its motion. At that time, he obtained copies of canceled checks and, comparing the canceled checks to the disbursements reported in the accounting, Nigel discovered that 28 checks reported as being paid to third parties were actually issued to Lucas or one of his companies. Although the bank statements listed the checks and amounts, only the canceled checks themselves revealed the payee. The 28 checks issued to Lucas or one of his companies totaled $558,169.47. Nigel also discovered that, after the accounting was approved, Lucas issued an additional four checks totaling more than $60,000 to himself or one of his companies. Nigel alleged that, although Probate Code section 2103 releases a conservator from all claims when a judgment or order is approved, that release does not apply if the order is obtained by fraud as to any representation of a material fact.

Lucas responded stating that there was no fraud, given that Nigel had online access to the conservatorship bank account and was aware of the discrepancy regarding the Miracle Mile debt; that Lucas had arranged for a third party to prepare the accounting; that Nigel, his guardian ad litem, and the probate court investigator had all reviewed the accounting; and, when the conservatorship was terminated in 2014, Lucas had delivered to Nigel, in multiple storage boxes, every document relating to the accounting, including the canceled checks. Lucas also argued that the fact that the disbursements schedule showed the service providers as payees, rather than showing that one of Lucas’ production companies paid the provider and was reimbursed was “perhaps unclear, but certainly not a fraud.” Lucas also argued that the motion to set aside the order approving the accounting was untimely, citing the case of Knox v. Dean (2012) 205 Cal.App.4th 417, and arguing that, in order to set aside the order based on misrepresentations of fact, Nigel had to show that the facts could not have been reasonably discovered prior to entry of the judgment.

Lucas also stated that he had advanced hundreds of thousands of dollars for Nigel’s benefit and reimbursed himself from the conservatorship bank account. Lucas stated that he discussed with Nigel each payment and reimbursement as they occurred. Further, Lucas stated he did not receive any compensation for the time he spent as Nigel’s conservator.

Nigel responded stating that Lucas admitted that the checks were not issued to the payees as represented in the accounting, and there was nothing that would have put him, the guardian ad litem, or court staff on notice of any irregularities in the accounting. Nigel also disputed Lucas’ claim that Lucas had provided every document relating to the accounting. When Nigel requested his records, Lucas informed Nigel that the records were “swept away and destroyed” in the mudslides that occurred in Montecito, where Lucas had a home.

At the hearing on the motion, Lucas argued that, even if he had taken the funds as alleged in the motion, Nigel was put on notice when Miracle Mile requested payment in 2014, of which Lucas informed Nigel during their meeting at Starbucks. Nigel argued that his own access to the financial records did not absolve Lucas of providing correct information or require Nigel to verify that the payees listed in the schedules were paid. Nigel also argued that a conservator has a duty to accurately disclose all disbursements and that Lucas had, in his accounting, clearly identified which transactions were reimbursements and that the 28 checks discovered by Nigel were not reported in the accounting as reimbursements. Nigel also argued that he was put on notice of the of the misrepresentation of facts when Miracle Mile filed its motion in April 2018. Further, Nigel argued that deliberately misidentifying the payee on the checks demonstrated an intent to conceal information. He also argued that parties who reviewed the accounting were under no obligation to confirm that the checks had been listed accurately. Indeed, he argued that, as a fiduciary, it was the obligation of the conservator to be truthful and not misrepresent material facts. The check reported as being issued to Nigel’s dentist was, in fact, issued to Lucas’ production company. The dentist’s custodian of records submitted a declaration that the dentist had received no payments from the conservator and that Nigel, personally, had paid for all of his own dental care. In addition, LA Litigation submitted a declaration stating that it had not received $31,089.25 on Nigel’s account.

The probate court determined that the information Nigel had provided was insufficient and directed him to file a declaration regarding his personal knowledge of the accounting to determine whether he acted with diligence in seeking to vacate the order. The court directed Nigel to detail the circumstances surrounding the discovery of the disputed issues in the accounting, his relevant prior communications with Lucas, and his understanding of the advances made by Lucas on Nigel’s behalf. Specifically addressing the Miracle Mile debt, Nigel stated that Lucas had told him that the debt was part of the $300,000 in unpaid debts that he owed and he, therefore, had no reason to question it. Nigel also stated that he understood that Lucas would reimburse himself for expenses he paid on Nigel’s behalf, but the 28 checks were reported in the accounting as direct payments to third parties, not as reimbursements to Lucas. Further, Nigel was not aware of the $60,000 in payments Lucas made to himself or one of his companies after the accounting was approved.

Lucas filed his response to Nigel’s declaration stating, in essence, that Nigel had sufficient information in 2014 when he was informed of the unpaid debt to Miracle Mile from which he knew, or should have known, of any potential error in the accounting. Lucas also argued that Nigel was kept informed of conservatorship finances, had access to view canceled checks, disbursements, and bank statements at any time and that Lucas did not make any false representations on which Nigel relied. Lucas also argued that Nigel suffered no damages and that there was no showing of any fraud sufficient to set aside the order.

After the hearing on the motion, during which both sides argued what they had essentially provided in writing to the court, the court took the matter under submission and issued a minute order stating that Nigel had not provided sufficient information regarding his personal knowledge of the circumstances of the accounting, and only described his knowledge of the reimbursement process in general terms. Further, the court found that Nigel had not acted with reasonable diligence based on the information that he should have known. The court denied the motion to set aside the order approving the accounting. Nigel appealed.

The Court of Appeal discussed the fiduciary obligation of a conservator, including the affirmative obligation to provide full disclosure of all material facts, stating that the “lack of full disclosure will amount to fraud.” The Court discussed the “critical wrinkle” in the extrinsic fraud rule as applied to fiduciaries. As an example, the Court cited the case of Conservatorship of Coffey (1986) 186 Cal.App.3d 1431, which determined that “a life insurance beneficiary was not required to oversee the activities of the conservator, scrutinize accountings and detect omissions, warn the conservator or take other action, to receive a benefit that the conservator had a statutory duty to conserve. Sound policy considerations require that we reject the imposition of such a duty, for otherwise, we would encourage the conservator who acted with less than ordinary care and diligence to hide his failings by nondisclosure, hoping to eliminate or lessen his liability by the beneficiary’s failure to detect the omission.”

The Court further stated that the fiduciary relationship comes with a fiduciary obligation. Citing the case of Estate of Sanders (1985) 40 Cal.3d 607, the Court stated that “When there exists a relationship of trust and confidence it is the duty of one in whom the confidence is reposed to make full disclosure of all material facts within his knowledge relating to the transaction in question and any concealment of material facts is a fraud.” “Where there is [such] a duty to disclose, the disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud sufficient to entitle the party injured thereby to an action.”

Turning to the question of the duty of diligence to discover misrepresentations of a material fact, the Court distinguished civil proceedings and the duty of a party to take advantage of discovery procedures, with a conservator’s presentation of an accounting to the court for approval, which is not an adversarial proceeding. However, “Once a party actually becomes aware of facts which would make a reasonably prudent person suspicious of wrongdoing by a fiduciary, the party is put on inquiry notice and has a duty to investigate,” citing Bennett v. Hibernia Bank (1956) 47 Cal.2d 540. When there is a fiduciary relationship, “facts which would ordinarily require investigation may not excite suspicion and less diligence is required. “ Id. at pp. 559-560.

The Court then discussed the Knox case as argued by Lucas for the proposition that a party seeking to set aside a judgment for extrinsic fraud based on misrepresentation of facts “must show the party could not reasonably have discovered the misrepresentations prior to entry of judgment.” The Court rejected any interpretation of Knox which would require a conservatee with no actual notice of facts that suggest wrongdoing to conduct an investigation to verify the facts in a conservator’s account prior to entry of judgment. When considering intrinsic fraud as opposed to extrinsic fraud, the Court concluded that Probate Code section 2103 clearly states that the conservator is not released from any claims when the order is obtained by “misrepresentation of material fact in the petition or account.” If a conservator misrepresents a material fact in an accounting that has been approved by the court, a party bringing a subsequent action on behalf of the conservatee does not need to show that the misrepresentation could not have been discovered prior to entry of the order approving the account. Probate Code section 2103 does not impose on fiduciary relationships the discovery obligation that applies in non-fiduciary relationships.

Applying its analysis to the motion filed by Nigel, the Court of Appeal stated that the probate court improperly placed the burden on Nigel to show that he could not have discovered the misrepresentations of material fact in the final account prior to the entry of the order. The probate court focused on Nigel’s knowledge of the reimbursement process, but the transactions at issue did not involve reimbursements. Rather, the focus of the motion was on the 28 checks which were reported as being paid to third-party providers when, in fact, they were paid to Lucas or one of his companies. While Lucas argued that what he claimed to be reimbursements were “poorly presented,” two of the checks were identified as being issued to creditors who had not been paid by Lucas, so there was no reimbursement.

The Court of Appeal rejected the proposition that Nigel’s “mere access to information [triggered] an obligation to comb through the records to verify the truth” of Lucas’ representations. Rather, the inquiry into whether Nigel acted diligently required the court first to determine when Nigel actually discovered formerly unknown information “sufficient to put a reasonable person on notice for fraud.” The Court of Appeal then remanded the case to the probate court to determine whether Nigel met the requirements for relief based on the law discussed in the opinion.

What this case makes clear is that a fiduciary should never skew information. It appears that the conservator was taking the position that his reporting in the accounting of transactions as being paid to third parties for services, when he claims they actually were reimbursements to one of his companies for payment for such services, were simply “poorly presented.” However, the conservator never stated that fact in the schedules or in the petition. What his schedules claimed were that checks were issued to specifically identified third parties, and they were not. Never fudge. Always make full disclosure. In this case, the conservator even had a third party prepare his accounting. If a fiduciary uses the services of a third party to prepare the account schedules, the fiduciary must ensure that the individual is aware that every single transaction is to be reported exactly as disclosed in the financial statements, canceled checks, and any receipts or invoices. Failure to do so could give rise to possible liability years later.

Full Article & Source:

Tuesday, September 21, 2021

“My Human Rights Are Being Violated”: Fighting A Family Conservatorship

Marie wanted the chance to live her own life — and make her own mistakes. Her father said that was unthinkable.


By Katie J.M. Baker and Heidi Blake 

Marie Bergum furtively scanned the gym locker room to make sure no one was watching, then took out her phone. She had gotten in trouble for making calls there, but felt she had no privacy at home, so she had to take her chances. Marie worried that if her dad realized she wasn’t lifting weights, he would call her a liar or trail her the next time she left the house. And if he knew what she was really up to, he might take her phone away again.

Marie was in her 30s, not a rebellious teenager. Her friends knew her as a gregarious woman who expertly applied thick winged eyeliner behind her glasses, unafraid to stand out. But due to Marie’s intellectual disability, her father, Jim, had ruled her life for 11 years as her legal conservator. Marie knew she needed assistance with things like budgeting and making medical decisions, but she wanted to call the shots. “I need help with life!” she’d later say. “But I want them to show me, not do it for me.” In recent years, she had assembled a network of lawyers, family members, and others who shared her belief that she was capable of so much more. That’s why Marie was in the locker room, whispering to them on the phone. She was plotting her steps toward freedom.

In court filings, Marie and her supporters would accuse Jim of controlling her hard-earned money, forbidding intimate relations with boyfriends, isolating her from people he disliked, and verbally abusing her, calling her “stupid” and “fat.” He had relocated her from city to city as he chose and wanted to move her out of California altogether. Marie said the older she got, the more she craved independence, but every attempt to claim it was held up as proof that she didn’t deserve it.

“Everything was taken away,” Marie told BuzzFeed News. “A little bit every year.”

Jim told BuzzFeed News he loved his daughter, but that for someone in her situation, the world was full of hazards and people looking to take advantage of her.

“My job is to protect her and put her on the path that she can succeed as best as she can. And I think I've been doing that,” he said.

Jim said he had never been cruel to Marie and had given her the best possible quality of life. As for the limits he imposed, they kept her from mistakes she would regret. Jim said he didn’t take Marie’s accusations personally, even while disputing many of them. “I don’t blame her,” he said. “I’ve never blamed her. This is her disability, for heaven’s sake.”

Dozens of interviews and a review of hundreds of pages of court documents cast a light on the challenges that many families face in deciding the best way to support someone with disabilities. For Marie and Jim, it came down to a fundamental conflict about what Marie was capable of and who was best suited to help her achieve it, but also, more broadly, whether everyone has the right to self-determination.

Marie was intent on taking her chances. “I don’t care how long it takes,” she’d later say. “I’m going to keep doing it, fighting the conservatorship.”

Marie Bergum at the thrift store where she works, outside Watsonville, California.
Victoria Will for BuzzFeed News

America’s guardianship system
is designed to protect people so incapacitated by a mental or physical disability that they cannot make any decisions for themselves. BuzzFeed News recently exposed the lucrative industry that has arisen around it, wielding tremendous power with little oversight and swallowing up people who say they should have control over their own lives.

Experts said it can be particularly hard to obtain freedom from guardians (known as “conservators” in California) who are family members. The #FreeBritney movement has drawn international attention to the conservatorship of Britney Spears, but though her celebrity is exceptional, her predicament is far from unique. Marie said she felt “just like her” — a thirtysomething Californian who has fought mightily to break her father’s control.

Family guardianship is especially common among people with intellectual and developmental disabilities. Although it is meant as a last resort, many parents of children with disabilities seek guardianship as soon as they turn 18, often because schools present it as the only way to ensure their care. The National Council on Disability calls it a “school-to-guardianship pipeline.” Disability rights lawyers say they regularly receive panicked calls from parents who didn’t realize they had signed their adult child’s rights away.

“Years later they regret it,” said attorney Viviana Bonilla L√≥pez, who recalled a 10-minute hearing granting a parent guardianship over an adult son. Afterward, the parent asked when they could register him to vote, not understanding that he had just lost that right. Once granted, a guardianship can be hard to dissolve, even if parents wish to do so.

Court records describe frightening stories about family guardianships, from a man with quadriplegia who died with bone-deep bedsores after years of parental neglect to a man with a mental illness whose mother slit his throat with a box cutter.

Overwhelmingly more common are cases like Marie’s, where at stake is what some call the “dignity of risk”: the right to make choices freely, good and bad, to learn from and live full lives. For those who need support, there are options that are less restrictive than guardianship or conservatorship, such as “supported decision-making,” which enables people to construct their own support networks instead of having someone take over the person’s life and make their choices for them. Disability rights experts say that everyone, especially young adults, deserves the chance to learn from past missteps.

“The notion that we are who we will always be at 18 is wrong,” and typical of the double standard applied to people with disabilities, said attorney Zoe Brennan-Krohn, a member of the American Civil Liberties Union’s disability rights program who worked on Marie’s case.

“Think about what you were like as a teenager,” she said. “What if a judge assessed who you were and said you’d never be able to grow or change, or accomplish anything more?”  

Marie (right) in an undated photo.
Courtesy Marie Bergum

When Marie was a 2-year-old
growing up in Michigan, she contracted meningitis, which left her with an intellectual disability. An IQ test she took shortly after she was placed in guardianship put her in the borderline intellectual functioning range. Marie lived a fairly independent life similar to that of other teenagers, she and her mother said, taking the bus to a job at McDonald’s where she helped work the cash register, cooking at home, and taking care of the dogs.

Advocates have questioned the usefulness of IQ scores, since they measure only certain skills and don’t factor in the chance someone has to develop them. Marie always felt her test results, which played a role in her guardianship determinations, didn’t reflect her true abilities. “I’m smart in so many ways,” she said. “I just have a different way of learning.”

Marie’s parents were divorced and in 2007, when she was 21, her father agreed to take her in, offering a change of scenery. Her mother, Cathy Caldwell, said she was surprised that Jim applied for a full guardianship and didn’t realize it would enable him to control all their daughter’s life decisions indefinitely. If she had known about other options, such as becoming Marie’s Power of Attorney, she would have done that instead, she said.

Jim said Marie consented to the guardianship, but she told BuzzFeed News she did not understand what it fully entailed; the court records are unclear. Her father had promised her freedoms, Marie said, but she soon felt that he set unfair limits, beginning with her social life.

Like many young adults, Marie didn’t always have the best taste in guys. There was one who at first everyone in the family liked — Jim even took him on a family vacation — but who stole Marie’s debit card. Marie’s Aunt Nancy would later testify that her own daughters, who don’t have developmental disabilities, acted out in some of the same ways as Marie. The behavior was “all part of normal child-rearing,” she said.

But the incident stuck with Jim and his supporters in the family. A decade later, they were still citing it as part of their evidence that Marie needed his protection.  (Click to continue reading)

Full Article & Source:
 
See Also:
 

Monday, September 20, 2021

They Both Fought To Break Free From Guardianship. Only One Escaped.

Falling in love and getting married cast two very different couples into the same nightmare. A BuzzFeed News investigation.
 

By Heidi Blake and Katie J.M. Baker 

Early one August morning, a young woman in camouflage shorts and a plastic tiara slipped out of a building in Rock Springs, Wyoming, and hopped into the Dodge Neon idling outside. She snatched a brief kiss with her childhood sweetheart, waiting at the wheel in cowboy boots, before he gunned the engine and set out along the Flaming Gorge canyon. At 7:15 a.m., just across the border in Utah, Arieana Wynter and Jesse Jones were declared husband and wife.

It was 2,000 miles away, in Florida, that a retired engineer and former Navy reservist named Doug Keegan donned a crisp suit and said his vows. His bride wore a white dress dotted with pink flowers. Monica Steele had transformed Keegan’s life since the pair met the previous year. After decades as a bachelor, he finally had someone to cook for, sing to, and teach how to swing a golf club. They had already honeymooned in Kenya. Now it was time to make it official. “When I said, ‘I’m going to love you forever,’” he later recalled, “that was cemented into my heart.”

The two couples were worlds apart in age, wealth, and social background — but their marriages had something in common that neither could have imagined. Each one would be used to support arguments that both Wynter and Keegan had mental disabilities so profound that they were incapable of making decisions about their own lives and should instead live under the control of virtual strangers.

Wynter and Keegan were sucked into America’s sprawling guardianship system, which was designed as a last-resort protection for people who are incapacitated by a mental or physical disability. Guardians who carry out their duties faithfully can provide a lifeline for those in need. But an ongoing BuzzFeed News investigation has found that the system has grown into a lucrative and poorly regulated industry that has subsumed more than a million adults.

Most of the freedoms articulated in the UN Universal Declaration of Human Rights are denied to people under full guardianship: They can lose their rights to vote, marry, start a family, decide where they live, consent to medical treatment, spend their money, seek employment, or own property. It is among the most severe measures the courts can impose on a US citizen.

Our investigation has revealed how an established network of guardians, lawyers, and expert witnesses, appearing frequently before the same judges in local courts across the country, are often paid from the estate of the person whose freedom is on the line, creating many possible conflicts of interest. Guardians who work for the state get paid from government funds, sometimes overseeing hundreds of people at a time. Other wards are consigned to the care of untrained volunteers or family members. All scenarios can leave vulnerable people susceptible to abuse.

Debra Slater, an attorney who has handled hundreds of guardianship cases in Florida, said the system is intended to help people who cannot help themselves and added that the majority of guardians and lawyers work hard to ensure people in their care live the fullest lives possible. But abuses can occur, she acknowledged. “For my whole professional life, I’ve been speaking for those who cannot speak for themselves,” Slater said. “It is very frustrating to spend your life trying to do that and then to see others taking advantage and doing harm to those who need protection most.”

People whom the courts have declared to be incapacitated rarely lead straightforward lives. Wynter has serious mental health issues; Keegan has ongoing struggles with alcoholism. Caring for people under those circumstances is undoubtedly challenging. Their cases also show how people coping with complex life challenges can get trapped in guardianships that are dangerously ill suited to their actual needs and deny them what some experts call the “dignity of risk”: the right to make their own choices, both good and bad.

For Keegan and Wynter, guardianship meant being denied one of the most fundamental rights of all: to be with the person you love.

Neither had a fairy-tale marriage, but their cases raise the question of when, if ever, a third party should get to decide whether two adults deserve to be together.

When Keegan’s relatives found out he had married Steele, a Kenyan American trainee nurse, they hired lawyers to persuade a judge to put him under guardianship, blocking her access to money the family expected to inherit. Lawyers cited alcoholism and his marriage to a woman they claimed was encouraging him to drink and stealing his money as proof that he was incapable of making his own decisions. Along the way, they referred incorrectly to Steele as Keegan’s “mail-order wife” and falsely alleged he was being “grifted by Nigerian women,” records show. He was locked in a series of homes for people with severe mental impairment, while annual accounting records show his guardians spent more than $400,000 of his savings in fees and other guardianship expenses.

As a teenager living in poverty, Wynter was placed under the permanent control of a guardian without a court hearing. For months, she begged to be released from a residential facility where she said she was “in so much damn pain” and “getting worse every day.” After BuzzFeed News started looking into her claims, a state agency launched an investigation and found that staffers there had abused and neglected her.

The public rarely hears from people under guardianship, but Keegan and Wynter overcame tremendous odds to speak to BuzzFeed News about their experiences over more than seven months. They hid their communications from guardians, concealing burner phones and secretly logging on to computers. Many of the people who have been instrumental in keeping them under guardianship said it had provided them the stability they very much needed. The benefits of guardianship were obvious, they said, and claims to the contrary were lies or delusions that should not be trusted. BuzzFeed News reviewed thousands of pages of documents and conducted dozens of interviews to report on their cases.

Keegan’s and Wynter’s desperate attempts to break free — or even to seize a simple moment of freedom, such as riding a bike or stealing a kiss — further cemented their fates. Only one of them would escape.

Courtesy Doug Keegan

Doug Keegan and Monica Steele


Keegan first heard
he was facing guardianship when a stranger turned up at his door a few weeks after his wedding, in November 2014. Dressed in a suit, with graying hair and a gravelly voice, he introduced himself as Calvin Horvath, Keegan’s new court-appointed attorney.

Keegan’s family had filed a petition asking the court to place him under emergency guardianship, Horvath explained. They said that he had been incapacitated by years of excessive drinking and his new wife was trying to steal his money.

Keegan did not deny his troubles with drinking, which included several hospitalizations for severe alcohol poisoning and a DUI. He’d had spells in Alcoholics Anonymous but said he found the emphasis on a higher power off-putting, so he tried to control his drinking on his own. He was blindsided by his family’s move. “My background is I’m an alcoholic, but there’s nothing wrong with my mind,” he said. “I’m as sharp as a tack.”

After working all over the world as an electrical engineer, Keegan had retired in his early 50s to a three-bedroom condo in Orlando with soaring cathedral ceilings. He met his wife when he got lonely and advertised for housemates online. Monica Steele was an energetic trainee nurse in her late 30s who had emigrated from Kenya a decade earlier and become a US citizen. Romance quickly blossomed.

She said she loved it when he sang to her — “Tomorrow” from Annie was her favorite — and laughed at his jokes until she cried. Keegan cooked up hamburgers and steaks, and she introduced him to Kenyan staples like boiled beans with corn and peppers. He still had lapses into heavy drinking, and the relationship could get stormy, but both said Steele pushed him to stay healthy. They went to the gym together, and he taught her to ride a bike. “She was someone to share life with,” Keegan said.

When he told his relatives he had married Steele, he said, he expected some backlash, but not its ferocity.

His brother Kevin Keegan turned up at their house, the couple said, claiming Steele had only married him for money and a green card. Steele, who already had US citizenship, said she was outraged. “I loved him,” she said. “He's a very good person and a very, very intelligent man.” But the rest of the family soon joined in.

“My family didn’t like me marrying a Black girl,” Doug said.

The family painted a starkly different picture of the relationship in court filings and in responses to questions from BuzzFeed News, maintaining that the marriage was a sham and that they were trying to rescue Keegan from an exploitative situation. “My brother Douglas is the gift that just keeps on giving​,” Kevin wrote in an email to BuzzFeed News. “Most of the family took turns trying to help Doug but like many alcoholics he resists AA and other available help. All the unfortunate things that have occurred​ ​to him are his own making.​”

A lawyer representing Kevin challenged the suggestion that the family had objected to Steele’s race. “The truth is that Douglas has battled inner demons for quite some time now,” the lawyer wrote, adding that “Monica didn’t seem to help.”

“This is a complicated situation and the family has stepped in for his interest doing the best they could to help a loved person,” he added.

Both Keegan and Steele strongly denied that she had ever taken advantage of him. But Keegan said his relatives had never shown much interest in him before, and part of him had wanted to believe they cared. It was true that Steele was less frugal than he was; she wanted him to buy her a car, he said, and he refused. He figured those kinds of tensions were normal in any marriage, he said, but he agreed to his brother’s request to talk to a lawyer about “some sort of protection, like a postnuptial agreement.”

Emails between the newlyweds show tensions building up. “I am heartbroken and not sure what’s going on with the so-called Attorney and your family,” Steele wrote to Keegan. “I know they’re trying to create enemity [sic] between us because i am a black woman.” Keegan said he and Steele both sometimes wondered if it would be easier just to end the marriage, but they resolved to try to make it work.

The lawyer, Dean Turman, talked to Keegan about drawing up a will bequeathing his wealth to his siblings, records show. Keegan figured that was fair for the time being, since his marriage was only a few weeks old. He also signed a power of attorney — believing, he said, that it would be used to make an asset protection plan. “I didn’t perceive the threat,” he told BuzzFeed News, speaking over a burner phone.

Billing records reveal that Turman and Kevin had already met privately to discuss plans to put Keegan under some kind of guardianship — although the lawyer noted that he seemed “competent.” Using the power of attorney Keegan had signed, Turman froze his accounts, telling his bank that he was “the subject of exploitation by a woman that he has met on the internet.” Then he filed a guardianship petition on the family’s behalf, alleging that Steele had used deception to “induce the proposed Ward to marry her” and had encouraged Keegan to drink so she could steal his money.

Turman declined to respond to detailed questions from BuzzFeed News. He said aspects of this story were “absolutely false” but refused to specify his concerns.

Keegan was outraged and said he had told his lawyer to fight the incapacity petition all the way. Instead, records reveal how the actions of Horvath, along with Turman and other professionals in the case, paved the way for Keegan to lose his rights. In the first full year of the guardianship alone, they were collectively paid $140,000 from his accounts. Horvath refused to answer detailed questions from BuzzFeed News, citing confidentiality.

Keegan’s predicament reflects an all-too-common occurrence across the US, in which people facing complex personal challenges can become trapped in a system with no one fighting for their wishes.

Florida’s laws, like those of most other states, say judges should establish guardianships only when no less restrictive option is possible. But the hearings in which they are decided can conclude in just a few minutes without the consideration of any alternatives. Many states allow petitions to put people under a guardianship to be heard on an emergency “ex parte” basis — a measure that can be necessary in extreme cases where someone may pose an imminent danger to themselves or others. But that procedure can be misused to strip people of their rights without any advance warning or any chance to speak up on their own behalf. And once a person has been declared incapacitated, they generally lose their right to contract, so in most states they can’t appoint their own lawyer to speak up for them, either.

Guardianship statutes often allow court-appointed lawyers to make their own determinations about what is in the ward’s best interests, regardless of what the person wants. But that’s not the case in Florida, where the law is intended to give people who have been found incapacitated more of a voice. “If the ward expresses a wish to resist the guardianship, the attorney should zealously advocate for that,” Anthony Palmieri, the state’s leading guardianship investigator, told BuzzFeed News. “Does that always happen? No.”

Keegan said it was his understanding that he didn’t have to attend his first court date, and that Horvath had reassured him that a full hearing would follow after a panel of doctors had examined him. But that first hearing turned out to be critical.

Lawyers for the family told the judge that Keegan was a “chronic alcoholic” and repeated their claim that Steele was stealing from him. Keegan had sobered up recently, they said, but that was only because his relatives had stepped in to help him. Keegan acknowledged in later filings that his alcoholism​ was ​“a health issue​”​ ​that he was “well aware of” — but he said it had been used as a “pretext” for his family’s efforts to take control of his life. “Guardianship is​ ​not a substance abuse program​,” he wrote.

On the day of the hearing, Horvath read out excerpts of an email in which his client said that he would be happy to accept some help from his relatives but he was not incapacitated. “I do not believe guardianship is the best answer,” Keegan had written. “I want to believe it is in my best interest to have primary control over my financial and personal interests.”

But in contrast to his client’s stated wishes, Horvath told the court it would be “appropriate” to appoint Keegan's stepfather as his emergency temporary guardian.

The judge agreed to place Keegan under emergency guardianship “because of all these parasites gnawing at the door.”

Later, when Keegan found out that his own lawyer had agreed to the arrangement, he said his wishes had been deliberately “misrepresented” in “a mockery of due process, transparency, and rule of law.”

But that came too late. Addressing Keegan’s stepfather, the judge said, “You will possess all of his rights at this point.”  (Click to continue reading)

Full Article & Source:
 
See Also: