Saturday, May 7, 2022

Guardianships in Pennsylvania and a Ward’s Right to Vote

Written by:  Tucker Arensberg, P.C.

Far too frequently individuals and their family members find themselves in a situation where they need the authority to step into the shoes of a friend, family or loved one to make critical healthcare and financial decisions on their behalf.  Without this authority, individuals can find themselves in precarious situations where they are unable to advocate on behalf of a family member or pay bills or other expenses essential for that individual’s well-being.  A proper estate plan that implements Healthcare and Financial Powers of Attorney can alleviate this stress; however, often an individual fails to establish an estate plan, or lacked the testamentary capacity necessary to execute a Power of Attorney in the first place.  In those situations, a Guardianship may be the proper tool to enable another to act.

What is a Guardianship under Pennsylvania Law

A Guardianship is a means by which a substitute decision-maker can act on behalf of an adult who lacks capacity to make some decisions.  Only a court, after a legal proceeding, may judge an individual to be incapacitated and appoint a guardian for him or her.  The Guardian then assumes the care and protection of the person for whom they are appointed as Guardian.  The person over whom a Guardian is appointed is referred to as a “Ward,” or incapacitated person.  After their appointment, the Guardian takes all legal decisions on behalf of the person and the property of the Ward.  This includes decisions concerning the Ward’s support, health and education, among other critical decisions.  The Guardian is generally mandated to consult with the Ward regarding these decisions and assist the Ward to develop self-reliance and independence to the greatest extent possible.   Yet because of the broad authority given to a Guardian, questions often arise regarding what decisions can and should be made by the Ward themselves.  One particular question that comes up often every two to four years is whether the Ward is legally able to register and vote in primaries and general elections.  The short answer is a lawyerly one:  it depends.

Voting Rights under Guardianships

Whether or not a Ward is able to vote will depend on the state where the individual resides.  Many states such as Arizona, Louisiana, South Carolina, and Virginia have enacted statutes that outright forbid someone appointed a Guardian from voting.  Other states like Florida, California and Oklahoma have laws expressly requiring the Judge appointing the Guardian to decide at the hearing whether the alleged incapacitated person can communicate and participate in the voting process.  Notably four states preclude “idiots” from voting.  Depending on your political views that prohibition may or may not be working.

In Pennsylvania, there is no statutory disqualification that prevents a Ward from voting.  Accordingly, there is a presumption that the incapacitated person has the right to vote unless the Court Order appointing the Guardian expressly takes that right away.  Assuming the Ward can communicate and wants to exercise their franchise, it is important to include language in the Guardian Order expressly stating the Guardianship shall not affect or terminate an incapacitated person’s ability to vote.  With that language established, voting registration offices and polling places will be able to work with the Guardian and enable you to exercise one of the most important rights in American democracy.

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State judge who told parties he had ‘no expertise in family law’ faces discipline

By: Nikita Biryukov

Superior Court Judge Michael J. Kassel was first appointed to the court in 2001. He serves in Camden County. (Photo courtesy of the Administrative Office of the Courts)

A Camden County Superior Court judge is in hot water over a temporary assignment in the vicinage’s family division.

The Advisory Committee on Judicial Conduct filed a formal complaint Tuesday against Judge Michael J. Kassel, saying he violated court rules and impinged on the judiciary’s integrity by failing to familiarize himself with family law, complaining about his temporary assignment, and repeatedly telling parties he lacked the expertise to adjudicate their cases.

Kassel, who has been a judge for 20 years, was assigned to Camden County’s family division once a week for roughly two months, from April to June 2021.

During his brief stint in family court, Kassel repeatedly complained to parties about his temporary assignment and said he “knew very little about the applicable laws” because he last served in the division 18 years ago, according to the complaint. Kassel has handled civil cases for most of his judicial career.

“Frankly, you could get a guy off the street that’s more experienced than me with this stuff,” he said in one family court case, according to the complaint.

On another occasion, the complaint said, Kassel asked attorneys to treat him “like I’m a ninth grader in high school.” In another, he requested “both sides walk me through the case like they were walking a fairly well-educated first-year law student,” warning them against assuming he knew anything about the law or their case.

Kassel also failed to recuse himself from a case involving an attorney who defended him on an 11-year-old drunk driving charge that ultimately was dismissed, and he also disparaged a court rule allowing defendants in summary family cases to forgo filing court documents if they appear in-person at a hearing, according to the complaint.

Complaints filed by the committee rarely result in judges being suspended or terminated. Most often, judges are issued a reprimand or a censure.

Judge shortage prompts reassignments

Kassel was assigned temporarily to the family division because of a shortage of judges there.

New Jersey’s judiciary has been grappling with a staggering number of vacancies. By May, 75 seats on the Superior Court will be vacant, Judge Glenn Grant, the Courts’ administrative director, told the Assembly Budget Committee earlier this month. Another 22 retirements are expected by the end of the year.

Those shortages, coupled with a pandemic-fueled slowdown in court proceedings that is just starting to abate, have forced the judiciary to temporarily reassign judges to the criminal and family divisions to more quickly clear priority caseloads.

Kassel’s case appears to be the first reassignment to result in disciplinary proceedings.

There are just three vacancies in Camden County Superior Court, and Gov. Phil Murphy has three nominations to the county’s bench awaiting approval from the Senate.

The chamber’s Judiciary Committee, which must approve gubernatorial nominees before they reach a floor vote, is expected to reconvene in May.

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Elder Abuse Task Force Shares Information with the Public on Signs of Abuse

by Thomas Fournier

The Month of May celebrates older Americans and their contributions to our country and communities. In 2019 Michigan started the state’s first Elder Abuse Task Force in order to protect some of the state’s most vulnerable population. Yesterday a virtual symposium was hosted by Michigan Department of Health and Human Services to provide resources to the public to aid in protecting elderly family and friends. Attorney General Dana Nessel opened the symposium with a short introduction to the problems that face older residents of the state.

“So here in Michigan the numbers are staggering. 73,000 older adults are victims of elder abuse each and every year. And that is completely unacceptable. The Elder Abuse Task Force tackle the challenges faced by older adults at every angle; law enforcement, healthcare, mental health, social services and financial issues. And we an protect and help older adults by providing information about the resources available through the many Michigan organizations who are a part of the Task Force.” – Dana Nessel, Michigan Attorney General

The Elder Abuse Task Force has over 100 members and 55 plus participating organizations, who are all fighting against elder abuse. The symposium covered a wide variety of topics around signs of physical, emotional and financial abuse. Yesterday’s event was meant for the public, and the full symposium will be posted to the task force’s website in the coming weeks. On June 9th the Elder Abuse Task Force will hold another symposium directed toward professionals who work with the elderly.

Call 855-444-3911 to report suspected abuse. Below you will find links to the Elder Abuse Task Force’s website, along with information about elder rights, incident report form, and video’s about the task force and a registration link for the June 9th Symposium.

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Friday, May 6, 2022

Associate Attorney General Vanita Gupta Delivers Remarks at the Elder Justice Decision-Making Capacity Symposium

Associate Attorney General Vanita Gupta Delivers Remarks at the Elder Justice Decision-Making Capacity Symposium
Washington, DC
Tuesday, April 19, 2022

Remarks as Prepared for Delivery

Thank you, Andy, for that warm welcome and for all of your work as the Department of Justice’s National Elder Justice Coordinator. I also want to thank the Elder Justice Initiative, the Justice Department’s Office of Legal Education, the Civil Division’s Office of Training and our many federal partners, especially the Department of Health and Human Services, who helped to plan this remarkable symposium.

I want to thank our participants and panelists, and I am delighted to welcome all of you to the department’s first-ever Elder Justice Decision-Making Capacity Symposium.

The Department of Justice is committed to using all of its tools to ensure that older Americans receive the support and protections they deserve. Every year, millions of older Americans are abused, neglected and financially exploited, often by those who are entrusted to care for them. The department has aggressively pursued justice for elders in a wide variety of fields – from nursing homes that provide grossly substandard care, to guardians and others who abuse their positions of trust and to multinational fraud schemes that target older adults. The department has also formed strong collaborative relationships with state and local law enforcement and provides trainings and webinars on elder abuse and financial exploitation to hundreds of civil attorneys, prosecutors, judges, investigators and other elder justice professionals in multiple disciplines, to ensure that they can appropriately respond to the specific needs of older adults.

This symposium addresses a foundational part of our work to protect our nation’s older adults: ensuring that they have access to justice and that they are treated with dignity and fairness. Advocates, prosecutors, law enforcement officers, judges, clinicians and others have repeatedly reported that too often, older adults are being denied a full measure of justice, in part because of mistaken assumptions or inadequate assessments of their capacity to make decisions for themselves.

These assessments can have deep and lasting impacts on the lives of older adults. In the criminal context, these assessments may be critical in ensuring that justice is obtained for older adult victims and, through restitution in certain cases, that they are made financially whole again. For example, an older adult may be a critical witness to a crime that will not be prosecuted if she is deemed incompetent to testify. Perpetrators who target older adult victims may seek to manipulate them, and a victim’s decision-making capacity may affect their interactions with their abusers. Assessing the victim’s decision-making capacity can help law enforcement tailor investigations to identify those cases that may, initially, appear to be cases involving a consenting adult, when in fact the victim did not – or could not – consent.

In civil cases, assessments about the need for a guardianship or conservatorship may govern an older adult’s ability to make core life decisions – where she can live, what medical decisions she can make, how she can spend her hard-earned money and with whom she can develop friendships and find companionship and love.   

Those of us who work in the legal system need to have a deeper understanding of how to address the specific needs of older adults and how to appropriately assess an individual’s decision-making capacity in a given case. As we work to combat elder fraud and abuse, we must equip ourselves with the knowledge and tools to ensure that we protect their rights and pursue justice when they have been victimized.   

That is why I am truly excited that you all have joined us for this symposium. Over the next three days, we will be engaging in a robust conversation about how we can best serve and protect older adults in this country. Participants span the spectrum of experts – including professors, clinicians, researchers, judges, prosecutors, law enforcement officers, aging services and social services professionals, administrative officials and many others. Although you come from many different fields, we are all here because we share a deep commitment to supporting and protecting older adults.

Your diversity of experiences is critical: it is through the cross-sectional expertise that you all bring that we will be able to have a fuller understanding of how to safeguard the rights of older adults. We need clinicians to help legal professionals, judges and adult protective services officials understand what capacity assessments can and cannot tell us about an older person’s abilities, and we must ensure that the tools used to assess decision-making capacity are valid and reliable.

Clinicians and elder justice professionals also need to share common understandings about their respective roles in the legal system, and I hope we can learn how to enhance communication between and among clinicians and elder justice professionals.

Finally, this symposium will explore how misconceptions about aging and decision-making capacity impact our civil and criminal legal systems. We need to confront and dispel negative stereotypes about the cognitive and decision-making capabilities of older adults. Even when a person has been diagnosed with a cognitive disability, we must understand how to reliably assess their actual decision-making capacity and how that capacity impacts the outcomes of a specific case or prosecution.

This symposium is just the beginning of the work we must do to ensure that all of us – judges, prosecutors, advocates, academics, researchers, guardians, adult protective services, aging services, social services professionals, elder justice professionals, doctors and clinicians, law enforcement officers and government officials – have a greater understanding of how aging and decision-making capacity impacts older adults so that the civil and criminal legal systems honor the rights of older adults, provide them with the greatest autonomy possible and protect those who have been abused, neglected or subjected to financial exploitation.

Thank you for sharing your vision, expertise and leadership as we forge forward together in pursuit of justice for our country’s older adults.

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Former Altoona financial adviser agrees to plead guilty to federal fraud charges

By Andrew Dowd

ALTOONA — A disbarred financial adviser who ran a wealth management firm in Altoona has agreed to plead guilty to two criminal fraud charges brought against him by the federal government.

Michael F. Shillin, 32, signed an agreement in late April to plead guilty to one count each of wire fraud and bank fraud, and the U.S. Attorney’s Office will dismiss nine other wire fraud charges contained in the same indictment.

Shillin’s next scheduled appearance is to formally enter his plea in U.S. District Court for the Western District of Wisconsin on May 23 at a courtroom in Madison.

The wire fraud charge carries a maximum penalty of 20 years in prison, three years of extended release and a $250,000 fine. The maximum penalty for bank fraud is 30 years in prison, five years of supervised release and a $1 million fine.

Shillin also will be required to pay restitution to his victims. That means he must pay back $462,000 in loans to Northwestern Bank of Chippewa Falls, but the amount he’ll have to return to his clients has not yet been determined.

Shillin was indicted in late October on the federal charges, but then allowed to be on release while his case was pending. Judge Stephen L. Crocker revoked Shillin’s release on April 14 after the defendant had been caught taking an unauthorized tropical vacation with his girlfriend to the U.S. Virgin Islands in early April.

The plea agreement explains how the government’s case relied on former clients and their documentation to establish that Shillin had lied to them about their investments.

“Shillin kept his clients artificially happy so they would refer other clients, keep money invested for longer, and invest more money,” stated the agreement written by Assistant U.S. Attorney Zachary Corey. Shillin’s firm charged its clients a yearly fee equal to a percentage of the money it managed for them.

One instance cited in the government’s case is a married couple that Shillin managed money for. He told them he’d bought shares of SpaceX for them and they were making a large profit. However, Shillin never did buy those shares, and SpaceX continues to be a private company that does not sell stocks to the general public. The plea agreement cited text messages and emails from fall 2019 and spring 2020 between the couple and Shillin to corroborate the allegations.

Shillin also is accused of defrauding clients by misrepresenting the costs and benefits of insurance policies he convinced them to buy. For example, Shillin advised a couple to switch their State Farm life insurance policies to ones at John Hancock with better long-term care benefits. However, when one of those clients called John Hancock in October 2020 about the policy, the company said the policy number provided by Shillin was invalid. The client then discovered the money provided to Shillin to buy the life insurance policy was still sitting in an investment account at Shillin Wealth Management.

Shillin also made fraudulent tax documents that led clients to believe they were eligible for tax breaks they were not entitled to, the plea agreement stated. Based on 1099 forms from Shillin, a couple expected to only pay $1,628 in federal taxes. But when learning they didn’t qualify for tax breaks Shillin promised, the couple re-filed and found they owed $27,512 in federal taxes.

Between August 2020 and September 2020, Shillin took out a total of $462,000 in loans from Northwestern Bank with the explanation it was to cover his firm’s payroll. To show he had collateral for the loans, Shillin provided a statement showing $1.25 million in an account owned by Shillin Wealth Management. However, that statement was actually for an account belonging to a couple advised by Shillin, not the financial firm itself, according to the plea agreement.

In addition to the federal criminal charges against him, Shillin also filed for Chapter 7 bankruptcy in November. The bank and multiple former clients are among the creditors listed in Shillin’s bankruptcy petition. That case is still pending in the U.S. Bankruptcy Court for the Eastern District of Wisconsin.

According to a Financial Industry Regulatory Agency database, Shillin began his career as a broker in July 2011 at Edward Jones in Chippewa Falls before changing firms to Raymond James Financial Services in August 2014. That second firm fired Shillin in mid-2018 for failing to follow the company’s procedures involving client fees, so then he opened his own firm. Shillin Wealth Management was in business in Altoona’s River Prairie development from mid-2018 until it closed at the end of 2020 while he was under investigation.

Shillin Wealth Management managed 2,992 accounts with nearly $135.5 million in assets in them before the firm went defunct in December 2020, according to a financial report provided to the court.

In January, the U.S. Securities and Exchange Commission barred Shillin from being a financial adviser, following similar bans imposed by Wisconsin regulators and FINRA.

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Metairie woman arrested, accused of stealing money from elderly

A Metairie woman was arrested after stealing money from the elderly, according to the St. John the Baptist Parish Sheriff's Office.

The sheriff said Tammy Davis, 54, is accused of impersonating an Ochsner staff member and fraudulently taking money from elderly victims. 

The investigation began in March 2022. The victims told the sheriff that a woman dressed in medical scrubs, later identified as Davis, approached them at local grocery stores and began a conversation, telling them she worked for their doctor and asking the victims if they recognized her from their doctor's office.

The sheriff said she then lied to the victims, telling them her car had broken down in the parking lot of the stores, and she needed money to pay the wrecker service standing by.

The victims gave the payment they believed was for the wrecker service.

Davis then told the victims she would contact them and pay them back when she returned to work at the doctor’s office, according to the sheriff.

A warrant was issued for Davis’ arrest.

She was booked with two counts of theft- less than $1,000, and two counts of exploitation of the infirmed, a felony.

After her arrest she was taken to the Jefferson Parish Sheriff’s Office.

The sheriff said Davis has a history of illegal drug charges as well as exploitation of the infirmed, bank fraud, and theft.

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Thursday, May 5, 2022

Morning Report: Councilmembers Want a Conservatorship Unit

A member of the San Diego Police homeless outreach team speaks to a homeless resident staying in the Midway District on Sept. 28, 2021. / Photo by Adriana Heldiz

Two San Diego City Councilmembers want to create a unit in the City Attorney’s Office focused on placing homeless residents who are unable to care for themselves in treatment and housing.

City Councilmembers Jennifer Campbell and Marni von Wilpert on Tuesday announced they want to allocate $500,000 for City Attorney Mara Elliott’s office to fund a treatment coordinator to assess individuals’ needs and two deputy city attorneys to coordinate with county officials who oversee conservatorships, make referrals and file petitions in court. 

The councilmembers’ budget proposal coincides with a wave of statewide discussion about behavioral health reforms including a controversial pitch by Gov. Gavin Newsom aiming to make it easier to order people with serious mental illnesses to seek treatment. It also coincides with increased activity already playing out on Elliott’s watch.

The San Diego County’s Public Conservator’s Office has long led the charge when it comes to recommending conservatorships and overseeing treatment and other decisions for people considered to be a danger to themselves or others, or to be deemed “gravely disabled.”

But since 2020, Elliott’s office has said city attorneys have formally made roughly a dozen referrals to the county to urge officials to pursue probate conservatorships for people the city decided couldn’t care for themselves. And von Wilpert said Tuesday that Elliott’s office is now reviewing about 20 additional cases.

Read more about their proposal here. 

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DA Manlove objects to disbarment recommendation

By Hannah Black

Laramie County District Attorney Leigh Anne Manlove continues to fight a disciplinary recommendation that she be disbarred.

CHEYENNE – The Laramie County District Attorney has formally objected to a disciplinary panel’s recommendation to the Wyoming Supreme Court that she be disbarred. She argued that, except in one instance, the panel did not have the “clear and convincing evidence” required to show she violated professional conduct rules for attorneys in the state.

In a document filed with the state’s high court Tuesday, DA Leigh Anne Manlove and her attorney, Stephen Melchior, asserted that, even if the court did decide she violated rules, appropriate sanctions under American Bar Association standards would be things like “private reprimand” and “public censure.” Manlove rejected an argument that disbarment would not remove her from her elected position as DA, calling it “illogical.”

“Suspending or revoking the (Laramie County District Attorney’s) license to practice law while they are in office would effectively remove them from their elected position by disabling their legal authority to act as the (district attorney),” the response said.

The state Supreme Court oversees the Wyoming State Bar and its Board of Professional Responsibility, from which a three-person disciplinary hearing panel was chosen. The BPR is the hearing body for attorney discipline in the state.

The court will ultimately decide what consequences Manlove will face. This process may take several months.

Bar Counsel Mark Gifford declined to comment on Manlove’s response.

Formal charges filed by the Office of Bar Counsel last year with the State Bar alleged Manlove had mishandled the prosecution of cases and inappropriately dismissed certain cases, and that she created a hostile work environment.

Following the conclusion of the hearing, the panel announced Feb. 11 that it would recommend Manlove be disbarred, or lose her ability to practice law in Wyoming, for violating six rules of professional conduct. It filed its formal recommendation with the Supreme Court on March 11.

These rules were found to be: Rule 1.1, duty of competence; 1.3, duty of diligence; 3.3(a), duty of candor to the tribunal; 3.4©, duty to follow rules of the tribunal; 8.1(a), material false statements in a disciplinary proceeding; and 8.4(d), which says, “It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.”

The report also recommended Manlove be required to pay an administrative fee of $3,000.

In her response, Manlove rebuked the choice by the BPR and Office of Bar Counsel to hold the eight-day hearing at “the lovely and luxurious” Little America Hotel & Resort in Cheyenne, accusing the BPR and OBC of “sparing no expense” on meals and beverages.

“The Office of Bar Counsel’s willingness to expend (State Bar) resources in this way is outrageous, and no doubt done with full confidence and expectation that Manlove would be reimbursing (the Bar) in the end,” the response said.

The state Supreme Court has discretion over whether Manlove is responsible for reimbursing the Bar more than $91,000 in total for costs associated with the hearing and investigation.

The largest portion by far was $64,635.75 for lodging, meals, meeting space and use of audio/visual equipment. The Wyoming Room, the ballroom in which the disciplinary hearing was held, cost $1,200 each day – except for the two Fridays the ballroom was used, when the price increased to $2,600.

Manlove noted the “extraordinary” toll the almost year-and-a-half proceedings took on her life, and that the more than $91,000 requested for reimbursement doesn’t include more than a year of legal defense fees and costs.

Disregard of witnesses

Manlove also said the BPR panel “markedly discounted the testimony of Manlove and her witnesses,” and “gave full credence to to (Special Bar Counsel Weston W. Reeves’) witnesses but expressed distrust of Manlove and her legal assistant, Lisa Riggs.”

The DA rejected the panel finding she was “combative” and “defiant” during the hearing, as Manlove had been “under attack for more than a year by the time the hearing took place and was there to defend herself,” the response said.

Manlove added that she had taken responsibility, long before any formal charges, for failing to produce evidence in a timely manner in a 2019 case involving the defendant Rodney Law. She said this is the only allegation for which the panel has clear and convincing evidence.

“Manlove also apologized and took responsibility for her perceived harsh treatment of certain employees,” the response said.

She also reiterated arguments made in previous responses and during the hearing that she did not act improperly in her attempts to deal with proposed budget cuts by the state, or in her discretion to fire or hire certain attorneys and other staff members at the beginning of her tenure.She also asserted thatThe DA said there was no evidence to support the assertion that she’d directed cases to be dismissed because she wasn’t prepared to go to trial.

The panel discounted testimony by employees who did not support the allegation that Manlove fostered a chaotic or toxic work environment, the response said, while finding testimony that supported that allegation credible.

Contemporaneous notes by former office manager Amanda Santee were “improperly admitted,” following an objection by Melchior, Manlove’s attorney, that they only consisted of hearsay statements, according to the response.Manlove reiterated an assertion she testified to, that “she has multiple reasons to believe she is/has been the target of person animus of Mark Gifford, Bar Counsel.”

Contrary to the panel’s findings, there was “ample testimony” that a former deputy DA, Caitlin Harper, “had an interest in seeing Ms. Manlove removed from office” so she herself could take the position. Harper was the only person who spoke to a few Laramie County judges about alleged dysfunction in the DA’s office, save for a comment by former attorney Cameron Geeting that the office was “hostile and not working for me,” according to the response.

Gifford then seemed to solicit the assistance of Harper and other either former or soon-to-be-former employees to gather information on Manlove.

Manlove wrote that, rather than bring concerns she’d heard from Harper to her directly, Laramie County District Judge Catherine Rogers and other judges decided to write a letter to Gifford. He used the letter, “prepared (by the seven Laramie County judges) with the encouragement and guidance of Mr. Gifford” as the basis of a petition filed a day after with the Supreme Court to immediately suspend Manlove, the response said. The court denied that petition.

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Woman pleads not guilty to exploiting elderly woman

TEXARKANA, Texas -- A woman accused of stealing more than $17,000 while working as a caretaker for a woman in her 90s pleaded not guilty Tuesday to exploitation of the elderly.

Tiffani Lucille Barker, 37, was taken into custody on an unrelated felony theft charge at the end of her hearing before 102nd District Judge Jeff Addison. Barker expressed surprise when Addison told her she was being taken in on a warrant.

Assistant Public Defender Deborah Moore entered a plea of not guilty on Barker's behalf to a charge of exploitation of the elderly. Barker was free on a $40,000 bond in the exploitation case until her arrest in court Tuesday.

Barker allegedly made numerous cash withdrawals from multiple accounts before the suspected theft was reported to Texarkana, Texas, police in July 2020, according to a probable cause affidavit. Barker was arrested on the exploitation charge in November 2021.

Barker's phone number was allegedly attached to a Discover card the elderly woman's family knew nothing about. Items purchased with the card online were allegedly delivered to Barker's address, and the bill was allegedly paid from one of the elderly woman's bank accounts.

Assistant District Attorney Bradley Akins said the full amount of restitution allegedly owed the elderly victim may have increased since the case was initially investigated.

Barker is currently serving a 10-year term of felony probation in Miller County, Arkansas, for theft of property. According to records in that case, Barker stole more than $13,000 from a Texarkana, Arkansas, couple. Barker's probation in Miller County began April 2, 2019.

If convicted in Bowie County of exploitation of an elderly person, Barker faces two to 10 years in prison.

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Wednesday, May 4, 2022

Patients weren’t dying — but doctor sent them to Mississippi hospices anyway, feds say

By Hayley Fowler
The medical director for more than a dozen hospice providers in Mississippi supplied them with a steady stream of patients over the course of a decade, federal prosecutors said. 
There was just one problem: Many of those patients weren’t dying. 
Dr. Scott Nelson, a licensed physician from Cleveland, Mississippi, is accused of funneling patients to various hospices to help the owners defraud Medicare and Medicaid out of at least $15 million. A federal jury found him guilty of health care fraud after a two-week trial in the Northern District of Mississippi, the U.S. Attorney’s Office said in a news release on Tuesday, April 5.

Defense attorneys representing Nelson did not immediately respond to McClatchy News’ request for comment on April 6. 
“Just to enrich himself, Dr. Nelson fraudulently prescribed hospice care for a steady stream of Medicare and Medicaid beneficiaries who he knew were not dying, ignoring the fact that under this end-of-life status they would not be eligible for curative services,” Special Agent in Charge Tamala E. Miles said in the release.

Mississippi Attorney General Lynn Fitch said the alleged scheme violated patients’ trust, adding they shouldn’t “have to worry about being pawns in a get-rich-quick scheme.” 
Nelson was indicted in 2017 alongside three owners of the hospices for which he was the medical director. The four of them were accused of concocting and executing the alleged fraud scheme from at least 2005 until 2015. 
According to the indictment, Nelson’s job was to certify patients for hospice at one of several facilities in the Mississippi Delta. The owners of those facilities are then accused of submitting fraudulent claims for reimbursement of services to Medicare and Medicaid on behalf of those patients. 
Prosecutors said the hospice owners often brought three or four patients at a time to Nelson’s office in Cleveland, located about 120 miles northwest of Jackson, Mississippi. 
“In almost all cases, the patients had no idea they were being placed on hospice and multiple patients testified at trial that Dr. Nelson did not explain hospice to them and did not tell them he was referring them to hospice care,” the U.S. Attorney’s Office said.

Nelson signed medical records on their behalf that allowed the hospice owners to bill Medicare and Medicaid for unnecessary medical care, prosecutors said. 
The hospice owners received more than $15 million from the government based on his bogus patient referrals, according to the Justice Department. Prosecutors said Nelson was paid $442,000 in medical director fees from at least 14 hospice providers between 2009 and 2014. 
All three of the hospice owners named with Nelson in the indictment pleaded guilty before his case went to trial on March 21. 
Court filings show Nelson submitted a plea deal in 2019 that a judge later rejected. 
According to the Mississippi State Board of Medical Licensure, Nelson’s medical license is still active. He is scheduled to be sentenced on July 27.

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Ex-state Sen. Shannon Robinson disbarred

By Colleen Heild

The state Supreme Court on Tuesday decided to disbar former state senator and longtime attorney Shannon Robinson for spending settlement money intended for a client’s “horribly injured” daughter on his personal expenses, such as keeping his Albuquerque law practice afloat.

Shannon Robinson
Despite a plea from lawyer Shannon Robinson for “mercy,” the court adopted the recommendation of a disciplinary board hearing panel to impose what Chief Justice Shannon Bacon described as “the ultimate penalty of disbarment.”

Robinson, 74, had two prior disciplinary offenses over his 48-year legal career in New Mexico, but those weren’t mentioned Tuesday during oral arguments prior to the court ruling. He served 20 years in the state Senate representing District 17 in Albuquerque as a Democrat before losing a reelection bid in 2009.

Robinson contended he wasn’t dishonest when he spent about $43,000 from a client’s legal settlement reached in 2016. The client was caring for her daughter who he said on Tuesday was “horribly injured” in a motorcycle accident.

He attributed the lapse to poor record keeping and his attorney Charles Vigil told the justices that he tried to repay $35,000 four years later but his client wouldn’t take it. The client by that time had hired another attorney to file a malpractice case against Robinson.

Robinson was also faulted by disciplinary board assistant counsel Jane Gagne on Tuesday for waiting until disciplinary charges were filed against him to try to repay a portion of what he owed.

Gagne also told the court he exhibited a lack of cooperation in responding to requests for information about the missing money.

Bacon questioned how Robinson could not have had a “dishonest motive.”

And she noted the “harm” of Robinson depriving his client and her family of the “funds that haven’t been available to care for the child.”

“Where’s that money now,” Bacon asked, to which Robinson’s attorney Vigil responded, “I don’t know the answer.”

Robinson, in addressing the court, didn’t reply to the question. He said he had “tremendous regret” and “tremendous remorse that I used the funds to keep my practice alive.”

“I ask for your mercy,” he added.

He said he represented the family of the accident victim for “many, many, many years and I did a lot of things for them besides (representing them) in this accident.”

Robinson has explained his lack of communication about his accounting of the settlement money in part to being “too sick to get out of bed and having a hard time reading in late 2019 and early 2020,” Gagne told the court, adding that Robinson provided no medical evidence of his illness.

Court records state that one of Robinson’s prior disciplinary offenses involved a lawsuit he filed that had no basis. In the other, he received a formal reprimand for failing to promptly notify medical providers of settlements in four of his personal injury cases, the court record shows.

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Man scams elderly woman out of thousands of dollars for tree services, records show

MEMPHIS, Tenn. — A man is behind bars after scamming an elderly woman out of thousands of dollars.

On Nov. 5, an 81-year-old woman agreed to pay Cleveland Bobo, 35, to cut down two small trees at her home in the 2200 block of Tidmington Drive for $7,100.

The victim said Bobo told her she could only pay by credit card but that he did not have the ability to accept credit cards, an affidavit said. 

On the same day, Bobo had his friend and business associate charge the victim’s MasterCard to the friend’s Square business account in the amount of over $7,000, reports said.

According to the affidavit, after the work was been done, on Nov. 9, Bobo and the friend returned to the victim’s home and told her that the transaction did not go through. 

Bobo and the friend then scammed $6,500 from the victim, officials said.

The friend had his sister walk the victim through opening a charge account with PayPal. The victim withdrew $1000 from her bank and then sent $5,500 to the sister’s cash app, an affidavit said.

The sister gave a statement on body-worn camera and stated that she remembered the transaction. She helped her brother set up the Square account and business name, court records show.

She said that on Nov. 9, she received the money from the victim on her cash app and divided the money between Bobo and her brother, the affidavit said.

Bobo is charged with theft of property and financial exploitation of an elderly or vulnerable person.

The suspect’s bond was set for $40,000 and there is no court date information.

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Tuesday, May 3, 2022

A rare conviction and tearful Capitol testimony are intensifying pressure to reform Colorado’s guardianship system

Elder abuse prevention advocates are cheering the conviction of a Colorado Springs conservator accused of stealing from her wards. And lawmakers hear emotional testimony from loved ones with guardians.
by Jennifer Brown

It was a call about an unpaid bill from her mother’s doctor that led Barb Dowski to begin unraveling the deception.

Dowski tried to question her mother’s court-appointed conservator, who was in charge of paying those medical bills and the rest of Barbara Moore’s finances, but got no answers. So she headed down a paper trail on her own, and what she discovered hit her like a punch in the stomach.

In the span of five years, her mother’s court-appointed conservator had written 26 checks to herself from Moore’s bank account, totaling $118,000. 

Dowski’s sleuthing led to a Colorado Springs police investigation that lasted more than three years and uncovered 19 victims, all at-risk adults assigned to the same El Paso County conservator, Andria Beauvais. In all, Beauvais was accused of stealing more than $400,000. When she was sentenced in Colorado Springs in April, the courtroom was filled with her former wards — a person who was severely burned in a car accident, another with Alzheimer’s who couldn’t sign her own name, and a woman with developmental disabilities.

Beauvais’ conviction, even with a plea deal that left her with no prison time and a reduction from 16 counts of theft to just one, was considered a victory for advocates trying to prevent elder abuse and protect wards from their guardians. Despite dozens of horror stories, including several told in the El Paso County courtroom and before a state Capitol committee considering guardianship reform, only a handful of convictions are on the books statewide. Prior to the Beauvais case, the last conviction of a legal guardian or conservator in Colorado was in 2013, according to a national advocacy group. 

It’s a long-discussed problem — whether Colorado has enough guardrails in its system to protect some of the state’s most vulnerable residents. Thanks to Beauvais’ conviction as well as two bills at the state legislature, the issue is once again getting close scrutiny.

Conservator’s reports were fraudulent

Dowski’s first clue came when the doctor’s office told her that her mother, who was 89 years old and had Alzheimer’s disease, was no longer enrolled in Medicare. At first, Dowski thought her mother’s conservator was inept at her job. Then she reviewed 10 years of the conservator’s financial reports and realized it was worse than a paperwork slip-up. 

Dowski soon noticed a pattern. In the middle of each month, there was an extra check, like a duplicate payment for one of Moore’s bills. A second $7,500 monthly payment to the memory care center where Moore lived. Or an extra dentist bill. 

Dowski eventually found out from her mother’s credit union that Beauvais had written the extra checks to herself. On average, she had stolen $20,000 per year for six years from Moore’s accounts, Dowski said. 

Moore sought a conservatorship, a type of guardianship, when she was 80 and soon after she was diagnosed with Alzheimer’s disease. She didn’t want her daughter and two sons to have to deal with her affairs, Dowski said. 

Moore had raised the children alone after their father, a pilot, died in Vietnam in 1967. Left with a large mortgage payment on a new home, Moore returned to work at age 43, teaching third graders in Colorado Springs, and could not afford to retire until age 70. Soon after retirement, she started showing signs of memory loss. 

It was 2008 when an attorney advised Moore to set up a conservatorship, telling her it was a “very safe system” and that the conservator would have to provide annual accounting to the court, Dowski recalled. 

Barbara Moore worked as a teacher and raised three
 children alone after her husband died in Vietnam.
Before she died last month, she was the victim of
 theft by her court-appointed conservator.
(Provided by Barb Dowski)
“That would be funny if it weren’t so sad given today’s circumstances,” she said. 

Beauvais, according to court testimony, bought a house in 2014, a car and Disney vacations. A judge sentenced her to probation, saying she should work to pay off her debts, even though many relatives of the victims asked the judge to put her in prison. 

Dowski said she is most disturbed that the thefts went on for years and might have continued had she not spent multiple hours each day for months researching her mother’s financial records. 

“She stole from victims who had less than she did,” Dowski said. “They were supposed to be protected by the court. It’s staggering how there are all these people statewide that are protected under the Colorado courts and when it really comes down to it, the court is not protecting them. Why even have this system? 

“To me, it’s open season on at-risk persons.” 

Dowski’s mother, 94, was too frail to go to court for the sentencing of Beauvais, and her memory had deteriorated to the point where she couldn’t understand the proceedings. Dowski was there, begging the judge to put Beauvais behind bars.

Six days later, Dowski’s mother died. 

Beauvais’ attorney did not respond to a request for comment, nor did two guardianship organizations — the Colorado Guardianship Association and the Guardianship Alliance of Colorado.

Robert Campbell, a detective in the financial crimes unit at the Colorado Springs Police Department, investigated the case against Beauvais on and off for more than three years, poring over thousands of pages of bank statements going back to 2013. Beauvais originally was charged with 16 counts of theft, and could have faced up to 12 years in prison. But through a deal with prosecutors, she pleaded guilty to one count of theft and was sentenced to probation. 

The dome of the Colorado Capitol on July 26, 2019. (Jesse Paul, The Colorado Sun)

Campbell said he wasn’t involved in the plea deal, but said he was not surprised by the reduced sentence because of the trend nationally toward lighter sentences, including for financial crimes. “I know the victims and their families were wanting a stronger sentence, so it was not easy to see their reactions and their disappointment,” he said. 

The case was the only one against a conservator or guardian that Campbell has ever investigated. Much more common are cases in which a conservator is reporting suspected fraud or theft by a family member of an at-risk adult, he said. 

Still, the Beauvais case raised concern about Colorado’s system, Campbell said. “I saw that there are probably changes that can be made to help prevent this type of theft, especially on this magnitude, from happening,” he said. In particular, he suggested policymakers consider more strict regulations about what conservators must file in court, including receipts and copies of the front and back of checks. 

 Colorado lawmakers look toward reform

About 20,000 Colorado residents are under adult guardianship, according to the Center for Estate Administration Reform, or CEAR, a national advocacy group. Rick Black, executive director of the group, called the Beauvais conviction “nothing short of a miracle.” 

The small victory, he said, comes after more than a decade and “thousands of victories for the predators who use Colorado’s probate court system as a weapon to exploit.” Most of the allegations against guardians are not investigated, Black said, noting that several of the alleged victims of Beauvais, who worked at Elliott & Zebarth, were never interviewed by investigators who worked the case. 

The Beauvais case has played out alongside separate conversations about guardianship at the state Capitol this year. 

Lawmakers approved a plan to expand a public guardianship program, over the loud protests of a bipartisan group of lawmakers and the mother of a boy with disabilities who said the two-year-old program doesn’t have enough oversight. 

The public program, funded by taxpayers, is for destitute people who are unable to make their own legal and health decisions and have no family or friends to step in as guardians. It has operated as a pilot program the past two years in Denver County, but the legislature voted to expand it to southwest and southeast Colorado beginning in July. 

The private guardianship program in Colorado, the system used by Dowski’s mother, employs paid guardians to manage the finances of people who need help, often those who are elderly.   

Rep. Kim Ransom, a Republican from Douglas County, is leading the charge among lawmakers to improve the guardianship system. 

Ransom attempted to pass a bill that would have required guardians and conservators to follow a new list of requirements, including that they notify family members within seven days if a “protected person” dies, moves or is admitted to a hospital for emergency care. 

Kim Ransom speaks at the GOP state assembly on Saturday, April 9, 2022, in Colorado Springs. (Hugh Carey, The Colorado Sun)

The legislation was rewritten to set up a task force to review the guardianship system in Colorado after criticism from the Colorado Bar Association, which agreed that the system needs improvement but said the bill was poorly written. The hearing included a spate of intense testimony, including from adult children and siblings of wards who said their loved ones were taken advantage of by their guardians. The House human services committee often had to cut off testimony as relatives cried and yelled about what they had gone through, including not being told their loved ones had died or been moved. 

Lawmakers want the working group to report back on recommended reforms by the end of the year. Meanwhile, Dowski is seeking help from the governor’s office and members of Congress, asking for an overhaul of the system.

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Indiana Supreme Court disbars Evansville attorney after check deception conviction

by Mark Wilson

EVANSVILLE, Ind. — The Indiana Supreme Court has disbarred from practicing law an Evansville attorney convicted of check deception.

Jared Michel Thomas can no longer practice in Indiana as a result. He had already been temporarily suspended pending the outcome of the attorney discipline action.

Thomas had practiced as a criminal defense attorney and in areas, such as family law.

He was charged with felony check deception in July 2021. In September, he pleaded guilty to the charge as a Class A misdemeanor.

Warrick County Circuit Court Judge Greg Granger, acting as special judge in the case, sentenced Thomas to 6 months of unsupervised probation, which he completed in March, court records state.

According to the Supreme Court, during a three-week period in 2020, Thomas wrote several checks from his trust account to his operating account and vice-versa as part of a check kiting scheme that ultimately left his trust account overdrawn. 

He took $6,000 owed to a client in a marriage dissolution case and instead deposited it into his overdrawn account. This reduced the negative balance but still left the account overdrawn, the court disciplinary action said.

The $6,000 was never paid to the client. Instead, it served to reduce the bank's financial loss when the account was closed.

The Supreme Court also said both sides in the disciplinary action agreed that the court's Disciplinary Commission is "investigating several additional matters" involving Thomas. In one of those, according to the Supreme Court, Thomas admitted creating a fraudulent sentence modification document and forging a judge's signature on it.

Joe Storey, a Henderson resident, told the Courier & Press that he paid Thomas $2,500 in early 2021 to represent him in a family law case in Warrick County. Storey said after that he was informed that Thomas had been suspended.

"We never had a hearing. In December, they called me in and asked me to sign a document acknowledging they were informing me of his suspension," Storey said. "I told them I wanted my money back."

Storey said he subsequently missed a court hearing because notice of it was sent to Thomas' office and he was never informed. He has been unable to afford a new attorney.

"I don't have the money to hire another one. I'm a disabled veteran. I pay child support and to care for my kids. A portion of my savings went to hire him," he said. "I don't have the money to hire a new lawyer until my money is returned."

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California mental health court won’t help homeless, advocates say. ‘This idea is broken’

By Lindsey Holden
About 75 percent of lifetime cases of mental illness begin by age 24, according to the National Institute of Mental Health. But the average delay between onset and intervention is 8 to 10 years, meaning people could go years before getting help. By Jim Donaldson

Last month, Gov. Gavin Newsom unveiled a plan to create a civil court system to compel treatment for people suffering from serious untreated mental illness, saying it’s time for the state to “take some damn responsibility to implement our ideals.” Newsom presented his proposal — the Community Assistance, Recovery and Empowerment Court, or CARE Court — as a way to help unhoused residents with conditions that cause psychosis. The policy is moving through the Legislature in the form of two bills — Assembly Bill 2830 from Assemblyman Richard Bloom, D-Santa Monica, and Senate Bill 1338 from Sen. Susan Eggman, D-Stockton, and Sen. Thomas Umberg, D-Santa Ana.

The bill is getting push-back from disability rights advocates, who say CARE Court forces treatment on mentally ill people with little regard for their civil rights. They also argue it wastes money that would be better spent on public education, early intervention and programming that doesn’t involve coercion. “We are neglected throughout the whole process, up until the point our condition is so severe that we can’t control it and we start doing things like breaking the law,” said John Vanover, legislative committee chair for the Depression and Bipolar Support Alliance of California. “And at that point, now, the governor wants to step in and make us criminals. So fundamentally, this idea is broken, just from that.”

How would CARE Court work? CARE Court would effectively create a new wing of the civil court system in all 58 of California’s counties that would allow a judge to order a mental “care plan” for those dealing with severe untreated mental illness. The program would apply to everyone who meets the criteria, but Newsom has repeatedly referenced it as a tool to help the homeless population. A person qualifies for CARE Court if they’re at least 18, diagnosed with “schizophrenia spectrum or other psychotic disorder,” are not receiving treatment, and lack “medical decision-making capacity,” according to SB 1338. California was home to nearly 162,000 homeless people in 2020, according to U.S. Department of Housing and Urban Development data. Nearly 38,000 people from that population — about 23% — were considered “severely mentally ill.”

CARE Court is meant to target the 10,000 to 12,000 people dealing with schizophrenia and psychosis who may qualify for the program, said Jason Elliott, a senior counselor to Newsom. The CARE Court program would enable a host of people — including family members, first responders and behavioral health professionals — to petition the court to create care plans for those who meet the criteria, according to SB 1338. County behavioral health departments would be responsible for carrying out the care plans. Those who don’t comply with their plans could be subject to California’s existing system of involuntary hospital stays and conservatorships.
President Ronald Reagan and Nancy Reagan at the Capitol in Sacramento. Mitch Toll Sacramento Bee file

Such programs have been in place since the 1960s, following the state’s shift away from mental health hospitals and toward community-oriented care.

Since California dismantled the hospital system, the state has primarily made use of the Lanterman-Petris-Short Act and Laura’s Law to care for people who suffer from severe mental illnesses. LPS — which then-Gov. Ronald Reagan signed in 1967 — ended the practice of long-term involuntary commitments to mental health institutions. However, it does allow involuntary hospital stays for those deemed a danger to themselves or others. The most well-known of these hospitalizations is the 5150 hold — nicknamed for the section of legal code in which it appears — which requires someone to receive treatment for 72 hours. LPS also created the conservatorship system, through which other people take responsibility for a gravely ill individual’s medical care and personal assets. Laura’s Law, passed in 2002, created an assisted outpatient treatment program that can be court-ordered after a person who’s mentally ill has repeatedly been hospitalized or arrested.  (Click to continue reading)
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Monday, May 2, 2022

Attorney Kerry Peck: ‘Financial exploitation of older adults is a horrific epidemic’

by: Pete Zimmerman

Elder law attorney Kerry Peck joins John Williams to talk about being appointed by the Illinois Supreme Court to chair a new commission on elder law. Kerry discusses some of the issues the new commission will tackle and the biggest concerns they need to address. Kerry also answers all of your elder law questions.


Nigerian National Extradited for Defrauding Elderly Victims and Money Laundering

 Department of Justice 
U.S. Attorney’s Office
Eastern District of Kentucky

Wednesday, April 27, 2022

Nigerian National Extradited for Defrauding Elderly Victims and Money Laundering

A Nigerian national, Adedunmola Gbadegesin, has been extradited to the United States, on charges of conspiracy to commit wire fraud and conspiring to commit money laundering, stemming from the financial exploitation of elderly victims in the United States.           

According to a recently unsealed Court documents, a federal grand jury in Lexington returned an indictment charging Adedunmola Gbadegesin, 33, of Lagos, Nigeria, alongside two others, Olatunbosun Oluwakayode Ajayi, 34, of Atlanta Georgia, and Otunuya Ineh Eqwem Livingstone, 45, of Houston Texas, with conspiracy to commit money laundering.           

The indictment alleges that Gbadegesin and his co-conspirators collaborated to create fake online dating profiles, to post to online dating websites.  As part of the alleged conspiracy, the co-conspirators would engage in online chats, emails, and telephone calls with unwitting victims, who were located in the United States, including one in Lexington.  The indictment alleges that as part of the conspiracy, the co-conspirators would convince the victims to send money to the nonexistent romantic partners or give them access to their financial accounts, so the co-conspirators could initiate money transfers themselves.           

The indictment also alleges that Gbadegesin hired others in the U.S. to receive funds from victims and to launder those funds, so the funds could be returned back to Gbadegesin in Nigeria.  Those United States-based money launderers included Ineh Eqwem, Ajayi, and Ismaila Fafunmi.

Fafunmi pleaded guilty to his role in the money laundering scheme; and in August 2021, he received 51 months in prison.  Ineh Eqwem and Ajayi have also pleaded guilty for their roles in the money laundering scheme; they were sentenced to 24 months and 12 months, respectively.

Gbadgesin was arrested by Nigerian authorities on Sept. 22, 2021, in Lagos, Nigeria at the request of the United States. At the time of his arrest, Gbadgesein had been residing in Lagos, Nigeria.  Nigeria approved his extradition on March 21, 2021, and he was transferred into U.S. custody on April 26, 2022.

Carlton S. Shier, IV, United States Attorney for the Eastern District of Kentucky, and Jodi Cohen, Special Agent in Charge, FBI, Louisville Field Office, jointly announced the indictment.

The investigation preceding the indictment was conducted by the FBI.  The indictment was presented to the grand jury by Assistant U.S. Attorney Kate Dieruf.  The U.S. Department of Justice’s Office of International Affairs, the Economic and Financial Crimes Commission of Nigeria, the Nigerian Attorney General’s Office, the Central Authority Unity, and the FBI Louisville Field Office assisted with the extradition of Gbadgesein.

Gbadegesin has his first appearance in Court on May 2, 2022 at 11:30 a.m. He faces up to 20 years in prison and a maximum fine of $500,000.  However, any sentence following a conviction would be imposed by the Court, after its consideration of the U.S. Sentencing Guidelines and the federal sentencing statutes. 

This case is being prosecuted as part of the Department of Justice’s efforts to identify and prosecute those persons who facilitate elder financial exploitation.

The Department of Justice’s Elder Justice Mission, being carried out through the Kentucky Elder Justice Task Force, is to seek justice for victims of elder financial exploitation.  Anyone that knows someone, who may be a victim of an elder financial exploitation, is encouraged to contact law enforcement.

            Any indictment is an accusation only. A defendant is presumed innocent and is entitled to a fair trial at which government must prove guilt beyond a reasonable doubt.                                                                                                  

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Woman arrested for assault and elderly abuse in Merced

by Ishshah Padilla
A woman was arrested after police say she attacked an elderly man on Tuesday morning in Merced.

Police responded to the area of W. 27th St. and H St. shortly after 9 a.m. When they arrived, they found an elderly man covered in blood with injuries to his head and face.

Detectives say the man was walking along the Bear Greek path when Angela Carrillo, 18, struck the man in the head with a rock and attempted to throw that rock at the victim but missed.

Carrillo, officers say attacked the man for an unknown reason. She was booked into the Merced County Jail for assault with a deadly weapon and elderly abuse.

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