Woman trapped in guardianship for 3 years finally has her rights restored after KIYC investigation

By: Walt Kane

A woman featured in a series of Kane In Your Corner investigations after she was trapped in a guardianship against her will, has finally gotten her rights restored. But the ordeal lasted three years and cost her an estimated $200,000.

Last week, Monmouth County Superior Court Judge Joseph Quinn finally spoke the words Elberta Cohen was longing to hear.

“We’re going to terminate the guardianship,” the judge said.

 

The decision means Cohen, 80, can finally make her own decisions again. Cohen said the ruling made her feel “wonderful, elated, very happy.” But she also called her situation “more than unfortunate.”

 

Kane In Your Corner first investigated Cohen’s situation last year. Her whole life had been put in the hands of a stranger, a guardian appointed by the court. She was left unable to access her own money or make her own legal or medical decisions.

 

Cohen’s youngest son, Robert, filed the guardianship petition. In an interview with Kane In Your Corner last year, he claimed he was concerned because he felt his mother’s thoughts could be “scattered at times.” Cohen and her eldest son, Larry, say Robert is not even on speaking terms with either of them. They say he filed the petition simply to stop her from updating her will, potentially reducing or eliminating his inheritance.

The Cohen case raises questions about New Jersey’s guardianship system. There are no clear diagnostic standards for judges to determine if a person lacks the capacity to make decisions; the judge’s discretion is nearly absolute. Once in a guardianship, it can be next to impossible to get out. More than 40,000 people lived under guardianship between 2018 and 2022, according to the New Jersey Judiciary. Just 73 people have had rights restored.

“It isn’t that common,” says Cohen’s attorney, Lauren Marinaro. “I wish it was more common. It’s difficult to do. I wish it was less difficult to do. But we got it done.”

 

Cohen was placed under guardianship based on evaluations by three doctors. Two found her unable to manage her affairs. But their conclusions were based in part on suspect evidence. One doctor asked Cohen to draw a clock. He admits she accurately depicted the time, which was the purpose of the question. But he chose to treat it like an art project, marking her question wrong because, in his opinion, Cohen did not depict the hands of the clock emanating from the center of the circle.

 

“The guardianship system definitely has a tilt towards getting people into guardianships and it can be very, very difficult for those folks to get restored back to capacity,” says Michael Brower, legal director of Disability Rights New Jersey. Brower says he attributes that in part to judges feeling concerned they could be publicly blamed if a person they rule has capacity is later injured. By contrast, Brower says some judges feel confiscating a person’s rights is the safer choice, even if it leaves them miserable and unable to exercise any control over their own lives. A bill, which would require judges to impose the least restrictive guardianship possible, has been languishing in Trenton for several years.

 

Getting rights restored is also expensive. Cohen had to hire her own attorney and pay for new examinations by her own medical experts. All the while, she also had to pay the guardian and the guardian’s attorney. Cohen is still waiting for a full accounting of her funds, but Marinaro estimates her client is out about $200,000.

 

Cohen’s freedom comes with strings attached. The judge required her to sign a power of attorney, allowing a financial advisor and geriatric care manager to assist her in making decisions. Cohen says she’s OK with the compromise because, in the event of a disagreement, she can still make the final decision, which is what she really wanted.

 

Cohen believes she would not have gotten her freedom back without the help of Kane In Your Corner. “You were kind enough to come to my house,” Cohen says. “You interviewed me. And you’re here in the court now. And I hope this helps everybody, that no one else will have to go through what I’ve just been through."

 

Do you have a story that needs to be investigated? Click HERE to get Kane in Your Corner.  

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Woman trapped in guardianship for 3 years finally has her rights restored after KIYC investigation

See Also:
KIYC: Thousands of NJ residents are in court-ordered guardianships. Some fight to get rights back

Filmmaker Goes In Nursing Homes And Captures The Effect Music Has On Alzheimer’s Patients

By Malorie Thompson

Alzheimer’s disease can be devastating to those who are diagnosed with it, as well as to their friends and family members.

According to the Alzheimer’s Association, more than 6 million Americans are living with Alzheimer’s and that number is only expected to rise. Alzheimer’s disease kills more than breast cancer and prostate cancer combined.

Photo: YouTube/Rotten Tomatoes Indie

With it being so prevalent and having no cure, researchers and individuals are looking for ways to manage the disease and make patients more comfortable. 

To explore the effects that music has on Alzheimer’s patients, filmmaker Michael Rossato-Bennett went to nursing homes and filmed a short documentary called Alive Inside.

Photo: YouTube/Rotten Tomatoes Indie

The documentary follows Dan Cohen, the founder of the nonprofit Music & Memory, as he visits nursing homes and uses music to help patients combat memory loss and find a deeper sense of self.

The film offers a unique look at how those affected by the disease can use music as a form of therapy.

Photo: YouTube/Rotten Tomatoes Indie

Suffering from Alzheimer’s often means losing part of who you are as a person, but music might be able to help that and bring back a sense of self. It’s a beautiful thing to witness. 

You can learn more about the documentary by watching the trailer below:    

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Filmmaker Goes In Nursing Homes And Captures The Effect Music Has On Alzheimer’s Patients

Shelter Dog Rescues Elderly Owner Shortly After Getting Adopted: 'She Really Is Our Hero'

Ruby, the German shepherd/Labrador Retriever mix, brought help to her owner when the man fainted and fell into a ditch

By Kelli Bender

Photo: Courtesy Dogs Trust

After her owner saved her life by adopting her from an animal shelter, Ruby the rescue dog returned the favor and saved her new pet parent.

According to Dogs Trust Salisbury, Peter Bradley and his partner Debbie Ackers from Dorset, England, recently adopted Ruby from the U.K. animal rescue.

It didn't take long for the 5-year-old German shepherd/Labrador retriever mix to prove her worth to her new pet parents. Shortly after her adoption, Ruby and Bradley were out on a walk when Bradley fainted due to low blood sugar.

Bradley fell to the ground and into an 8-foot-deep watery ditch, where he could not get up. Following the incident, Ruby flipped to hero dog mode and stayed beside Bradley while barking for attention.

"I woke up and had no idea where I was or what had happened. I could feel my boots filling up with water but could not find the strength to move. I could hear Ruby barking; she was making sure someone found me; that is a sure thing. Once I found some strength, I tried to climb out, but I could not as the sides were wet," Bradley said in a statement recounting the accident. 

Photo: Courtesy Dogs Trust

Ruby's loyalty and quick thinking worked; someone nearby heard her barking and showed up to check in on the commotion.

"If Ruby had not barked as she did, I could have been there for an awfully long time without anyone knowing I was missing," the man added.

Bradley got out of the ditch with help from those who responded to Ruby's barks. Not long after he fainted and fell, Bradley fainted again, and once again, Ruby stayed by his side.

"I must have fainted again at home, and the next thing I knew, my friend was beside me. He found me out like a light and Ruby lying over me. He called paramedics," Bradley explained. 

"Ruby continued to protect me and let the paramedics assist once she knew they were there to help. I did not want to go to the hospital, so thankfully, the nurses treated me at home instead. With the nurses and Ruby continuing to look after me, I am much better now," he added.

After an eventful few weeks with Ruby, Bradley does not doubt that he and the dog are meant to be. 

"Ruby has bonded with me and Debbie so well, and it feels like she has always been in our lives. We walk her every day and feel safe with her by our side," Bradley said.

"She really is our hero."

While Ruby has found her home, Dogs Trust Salisbury has plenty of hero pooches searching for families, which animal lovers can learn more about at the rescue's website.

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Shelter Dog Rescues Elderly Owner Shortly After Getting Adopted: 'She Really Is Our Hero'

Federal Judge Dismisses Libra Max’s Latest Lawsuit To End Guardianship of Her Father, Pop Artist Peter Max

by Daniel Cassady

For years, Pop artist extraordinaire Peter Max has been at the center of a Britney Spears-esque guardianship battle that has pit his daughter Libra Max against his court-appointed steward, Barbara Lissner.

That prolonged, dramatic court battle, fought in both state and federal courts, took a turn in Lissner’s favor earlier this month when U.S. District Judge Valerie Caproni of the Southern District of New York granted Lissner’s motion to dismiss Max’s suit, which claimed the guardian was intentionally inflicting emotional distress on the family, isolating Peter Max, and preying on his Alzheimer’s induced dementia for financial gain, racking up over $2 million in fees at around $550 per hour for her guardianship services.

In her complaint, Max claims Lissner should never have been assigned as her father’s guardian, and his need for a guardian ended with the death of his wife, Mary Max, née Balkin. Peter Max, who has Alzheimer’s disease, has had a court-appointed personal needs guardian since 2015. Mary Max committed suicide in 2019 shortly after a New York Times story detailed allegations that she was abusing her husband who was, according to the Times report, simultaneously being exploited by business associates. Lissner was appointed as Max’s guardian in 2019 after the departure of several other court-appointed guardians.

Libra Max, meanwhile, has alleged that Lissner’s care has been “inhumane and predatory.” In court documents, she has claimed Lissner immediately began isolating her father from his family and friends, making it difficult for them to visit and communicate with him. The complaint further alleges that Lissner refused to provide the artist with basic necessities such as dental care and fresh clothing, and that she was verbally abusive towards Max and his family members, and has often denied requests for visitation.

Lissner moved to dismiss the lawsuit under a lack of subject matter jurisdiction, as the guardianship is a state, not federal ruling. She further moved to dismiss on the grounds that Max has failed to state a claim.

“Because the adjudication of Plaintiff’s [intentional infliction of emotional distress] claim would essentially put this Court in the position of second-guessing the decisions of the guardianship court … the court lacks jurisdiction … ” Judge Caproni wrote in the decision on March 3.

Since 2019, Libra Max has unsuccessfully tried to have Lissner’s guardianship of Peter Max terminated three times in state courts, each time unsuccessfully, with allegations that mirror those in the federal complaint.

The federal court also acknowledged the unfortunate reality that the family members were unable to resolve their disagreements out of the public sphere and without court intervention.

“Prior to being filed, Ms. Max sent the complaint to the press, and she and her counsel continued a publicity campaign against Ms. Lissner. Today’s decision shows Ms. Max’s allegations for what they are, and hopefully puts an end, at least for the time being, to the unjustified, ongoing efforts against Ms. Lissner,” Oren Warshavsky, of the law firm BakerHostetler, which was representing Lissner, said in a statement.

Libra Max, and her brother, Adam, have spoken to or reached out to media outlets both against and in support of Lissner’s care, respectively, while Lissner has been fighting lawsuits since 2019. Adam has supported Lissner’s treatment of her father, claiming that Peter Max is in “excellent care. He’s never been treated better in his life.”

In a separate case, Adam Max has been accused of colluding with his father’s business associates, and increasing production of paintings via a throng of assistants. Those works are regularly sold through smaller auction houses and on cruise ships. That suit is not the only example of Adam Max being accused of harming his father. Before she committed suicide, Mary Max, Peter’s wife, accused Adam Max of kidnapping his father for financial gain.

Throughout the legal saga, the one person whom neither the media nor the courts have heard from is Peter Max, who, by all accounts, remains in his Upper East Side apartment in Manhattan under Lissner’s care and who, according to the New York Times, is unable to speak for himself.

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Federal Judge Dismisses Libra Max’s Latest Lawsuit To End Guardianship of Her Father, Pop Artist Peter Max

Financial Elder Fraud Steals $3B a Year — Congress is Fighting Back

Written by:  Brian Niggemann 

WISCONSIN (CoinChapter.com) — New congressional legislation will attempt to help avoid financial elder fraud, which totals $3 billion a year. If passed, a law currently before the Senate would combat financial ill-treatment — a recurrent threat to older adults and other vulnerable people.

The bill allows companies that offer mutual funds and similar pooled investments. In doing so, the companies step in when they detect an illegal transaction involving an adult 65 years of age or older or a younger person with disabilities financially. 

The measure is a carbon copy of one that passed the House of Representatives in 2021 but was defeated in the Senate. According to AARP research, the average cost of exploitation is $120,000.

The Bill Gears Towards Investment Companies

In short, the legislation would permit so-called registered, open-ended investment companies, or their agents, to postpone a requested redemption of a security or fund for up to 25 days. These companies can include exchange-traded funds, hedge funds, mutual funds, some annuities, and other pooled investments.

The law gives administrative authorities, courts, and regulators the right to postpone payments further. It would apply to those aged 65 or younger. The Insured Retirement Institute says,

“Bad actors are constantly coming up with new methods to exploit existing law. The legislation would provide people on the front lines to help avoid exploitation.”

The Financial Exploitation Prevention Act of 2023, introduced by Representative Ann Wagner, R-Mo., was passed last month by the House with unanimity of support from both parties. But it is still being determined if or when the bill will be brought up as it is currently awaiting review by the Senate Banking Committee.

Family Members are the Main Culprits Behind Elder Fraud

Family members take twice as much money as strangers. Elderly persons with cognitive difficulties are more susceptible to exploitation and may experience up to a twofold increase in theft compared to those without these problems.

According to Marve Ann Alaimo, a partner at the law firm of Porter Wright Morris & Arthur: 

“The financial industry is waking up and catching on that there are a lot of people out there who are vulnerable to financial exploitation in general, especially at a time when many transactions are made over the phone or online. Ms. Alaimo added, “The aging population is ready for it.”

Full Article & Source:
Financial Elder Fraud Steals $3B a Year — Congress is Fighting Back

Mission Point Care facility responds to report

By DREYMA BERONJA

ISHPEMING — The Michigan Department of Licensing and Regulatory Affairs released a 179-page report citing Michigan Point Nursing & Physical Rehabilitation Center of Ishpeming for abuse and neglect earlier this month.

According to the report, all 48 residents of the facility were impacted by insufficient practices that led to the potential for abuse and neglect.

The state also found that out of 17 allegations of abuse and neglect, the facility failed to report eight of them.

LARA said Mission Point did not meet 29 requirements including treating residents with respect; keeping residents safe from abuse, neglect and exploitation; reporting alleged violations; and providing basic life support to residents, which may have led to one resident’s death.

Mission Point of Ishpeming released the following statement on Facebook.

“Upon receiving the report and further internal investigation, we immediately removed three administrative staff members and prioritized Mission Point of Ishpeming with heavy support from our regional care team,” Mission Point’s post said.

A firm representing the Mission Point said the company had no further comment.

LARA said its report was based on observation, interview and record review. It said in part that Mission Point failed to immediately initiate CPR and call 911 in one case, which likely caused serious injury, harm and death to a resident.

The resident referred to in the report as Resident #12 was found half on the floor and the upper body on the bed without a pulse or respiration.

“We have since hired replacements for the key administrative roles,” it said. “While our regional leadership continues to spend a great deal of time with the new administrative team members and on site at the facility to ensure a smooth transition, we have received overwhelmingly positive feedback from our residents, families and staff on the changes. Also, we are aggressively developing our plan of correction and have submitted it to LARA for approval.”

LARA also said the facility failed to allow residents the right to be treated with respect and dignity, including the right to retain and use personal possessions.

For example, Resident #7 was interviewed about the respect and dignity requirement. LARA found this practice resulted in psychosocial harm, fear, increased anxiety, increased insomnia, feelings of insecurity and exacerbation of the resident’s post-traumatic stress disorder.

“A (certified nursing assistant) decided to change things up in my room. She came into my room at night and rearranged my whole room. She threw out a lot of my stuff,” Resident #7 said. “My safety and security has all been shot to hell.”

Resident #7 said the change in her room made her feel violated in some way.

“When I came back, and everything had been changed … I have never had my home invaded. I have to move forward,” Resident #7 said. “I don’t feel safe anymore. I don’t feel as secure as I did before.”

The state also said residents’ right to be free from abuse, neglect and exploitation was not met. Mission Point failed to provide necessary care and services for six residents out of 15 sampled for abuse and neglect.

The report said this resulting in a finding of staff inaction resulted in residents being left saturated in urine and feces. Inadequate nurse staffing resulted in a lack of consistently scheduled showers for residents, delayed medication administration and failure to ensure residents were dressed, groomed and able to get out of bed.

In a phone interview with a guardian of one resident at Mission Point, the guardian said the facility doesn’t have enough staff to take care of everyone.

“I don’t want this facility shut down because then it would just be worse for me, I don’t know what to say,” the guardian said.

When the state asked if the guardian found the resident saturated with urine all the way down to his shoes and soiled with dried feces, she confirmed that was the case.

“We take very seriously our responsibility for and commitment to the health, welfare and safety of our residents. That care starts and ends with strong onsite leadership,” Mission Point said. “Moving forward Mission Point Healthcare Service’s leadership and facility leadership will continue to monitor the plan of correction to ensure substantial compliance.”

To read the full report, visit val.apps.lara.state.mi.us/Files/ViewDocument/58133.

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Mission Point Care facility responds to report

Bill would tighten background checks for would-be guardians

by Kathleen Steele Gaivin

A bipartisan bill proffered in the Pennsylvania General Assembly is aimed at strengthening guardianship laws and preventing elder abuse for senior living and care residents and other older adults.

Keystone State Sens. Lisa Baker (R) and Art Haywood (D) recently introduced state Senate Bill 506 to provide alternatives to appointed guardianships. The bill would require courts to automatically appoint counsel to individuals going through the guardianship process; consider other, less restrictive alternatives before imposing a guardianship; and institute training and screening of professional guardians. 

“Unfortunately, cases where guardians have stolen or misused money belonging to the people they are legally charged with looking after are not uncommon,” Baker stated.  “We must have capable people step in and protect their financial interests.”

Pennsylvania is one of only eight states that does not automatically appoint counsel to represent alleged incapacitated individuals.

The Pennsylvania Assisted Living Association supports the legislation, Executive Director Margie Zelenak told the McKnight’s Business Daily.

“Employees of personal care and assisted living communities are required to complete criminal background checks to work with seniors. These background checks protect the seniors that live in our communities,” Zelenek said. “Guardians can provide oversight for seniors living in our communities; therefore, it only seems plausible that they are also screened for any criminal history records.” 

The call for guardianship reform is not new in Pennsylvania. In 2019, a group of legal advocates for older adults called for major changes to guardianship laws following an investigative report that found extensive flaws in the way the state handled its background checks and appointments — leaving many nursing home residents, among others, vulnerable to exploitation. At that time, a single guardian serving more than 100 older adults had been charged with multiple felonies related to stealing from them.

“LeadingAge PA supports efforts to protect vulnerable older adults from abuse and exploitation,” President and CEO Garry Pezzano said. “We encourage lawmakers to engage providers and other stakeholders throughout this process to ensure reforms achieve their desired outcome and allow older adults to receive the care and services they need.”

The Legislature’s Aging and Youth and Judiciary committees heard testimony last week from a judge, attorneys, advocates for older adults and disability rights advocates about the bill. Teresa Osborne, state advocacy director for AARP Pennsylvania, testified in favor of guardianship reforms, stating that AARP state affiliates “have played a key role in the enactment of hundreds of new bills to update state guardianship laws and practices so that guardians are aware of their roles and responsibilities.”

Pennsylvania Health Care Association President and CEO Zach Shamberg said the association also supports the bill “in hopes that it can further support older Pennsylvanians by streamlining the guardianship process — if necessary — and generate family members or appointed guardians who will act in the best interest of an individual who is unable to make decisions on his or her own.

“Not all older adults or adults with disabilities have family members who can look out for them, and not all family members have the best interest of their loved one in mind,” he added. “This legislation would create more avenues in assigning guardianship, but also better training and screening to ensure we have the right guardians making decisions on behalf of older Pennsylvanians.”

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Bill would tighten background checks for would-be guardians

Former nursing home manager sentenced to prison for Medicaid embezzlement

By: Sophia Englehart

CORPUS CHRISTI, Texas — A former business manager for a San Antonio nursing home has been sentenced to 10 years in prison for misappropriating funds from Medicaid recipients, a press release from Attorney General Ken Paxton's Medicaid Fraud Control Unit said.

Robyn Nicole Calica, who worked at the Heights on Huebner nursing home, was found to have stolen money from the resident trust fund account at the nursing home and from the personal bank accounts of Medicaid recipients. Overall, investigators found that she had stolen $309,044.

According to the release, Calica previously only pled guilty to one count of second-degree theft. Since then, she has been ordered "to pay $124,690 in restitution to the Heights on Huebner facility and $18,276 to victims’ families."

The case was prosecuted by the Bexar County District Attorney’s Office and was investigated by Lt. Jeff Winney and Capt. Raúl González.

“Fraud will not be tolerated under my watch, especially when it involves vulnerable populations like the elderly and those in nursing facilities,” Paxton said. “We will continue to work together to bring criminals to justice and safeguard the people of Texas.”

The release states that Attorney General Paxton’s Medicaid Fraud Control Unit recovered over $236 million in taxpayer funds in the last fiscal year. 

If there is suspected Medicaid fraud or abuse, or patient neglect, it can be reported it by visiting the Texas Attorney General’s website.

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Former nursing home manager sentenced to prison for Medicaid embezzlement

Elderly woman with disability rescued after house catches fire in Arundel

An elderly Arundel woman with a disability was rescued after her house caught fire early Sunday morning. 

Kennebunk Fire Chief Justin Cooper was one of the first two firefighters inside the home. 

They were able to spot the woman quickly, who was lying on the floor. 

Fire officials say the woman suffered smoke inhalation, but was otherwise okay.

Source:
Elderly woman with disability rescued after house catches fire in Arundel

Dearborn Heights woman with disability wins case against guardianship

Judge Freddie Burton Jr. (Photo courtesy of Wayne County Probate Court)

By Dave Herndon

Linda VanWormer, 56, of Dearborn Heights has won a court case to keep her independence.

Wayne County Chief Probate Judge Freddie Burton Jr. recently placed VanWormer under Supported Decision-Making (SDM) instead of placing her under guardianship like it had been requested.

VanWormer has an intellectual disability, but will still be allowed to make her own decisions under the court order.

“I do call the shots now,” VanWormer told WXYZ.

Amy Peckinpaugh, her sister, has had guardianship over VanWormer since 2011. It was at her request that the SDM order was granted.

When Peckinpaugh got the first order, it was because her sister was living in an abusive relationship.

“It allowed me to say that Linda couldn’t go back up north and live with her abuser,” Peckinpaugh told WXYZ. “I had to make that decision to protect her. And so that is why I did that. But it meant I took that right from her. She couldn’t consent to treatment. She couldn’t decide where she wanted to move.”

While legally VanWormer was under guardianship, she and her sister were using the processes of SDM, and decided to make that the legally required process for her.

“Linda uses her family, her friends, providers that support her when she wants to make a decision, she comes to them, and if she needs some extra input, she’ll say, ‘Hey, what do you think of this,’” Peckinpaugh told WXYZ.

The pair said a mix-up with VanWormer’s mental health support agency had put a request through the courts to put her back under guardianship, which is what caused the court case to officially put the SDM order in place.

She said that the mental health agency realized it had made a mistake and helped to hire lawyers to fight for them, instead of against them.

Full Article & Source:
Dearborn Heights woman with disability wins case against guardianship

Bill planned for committee will prohibit discrimination for Alabamians with disabilities

By Erin Davis

MONTGOMERY, Ala. (WSFA) - Alabama lawmakers return to the state house this week to resume the regular legislative session. Two bills planned for the session are designed to eliminate discrimination against those with disabilities.

Lopez and other advocates rallied in from the state house to support two bills - the Colby Act and Exton’s Law.

“Just because we take medicines, or we don’t, can’t talk, can’t speak, can’t walk,” said Lopez. “You are just as equal as anybody else.”

The bills are designed to stop discrimination against those with disabilities.

Named after Colby Spangler, The Colby Act allows an adult with disabilities to have a decision-making agreement with an individual or group instead of a guardianship or conservatorship.

“We can choose what church, we can advocate, we can vote,” said Spangler.

Representative Cynthia Almond, R-Tuscaloosa, prefilled the bill.

“Make sure these agreements are supported, decision-makers are honored,” said Almond.

And Exton’s law would prohibit discrimination against those with disabilities from receiving organ transplants.

“Exton has Down syndrome, but he also is medically complex,” said Exton’s mom Savannah Black.

Black says that discrimination isn’t happening in Alabama and the law would keep it that way.

“What this law really does is it doesn’t let us jump ship and go to the top of the line. It lets us just get the requirements and meet the requirements without them investigating their mental competence,” said Black.

Exton’s law has not been filed yet, but The Colby Act will be in a house committee this Wednesday.

Full Article & Source:
Bill planned for committee will prohibit discrimination for Alabamians with disabilities

Elderly couple helps police take down phone call scam ring

A Muskegon County task force said they were able to catch two West Palm Beach suspects accused of defrauding three elderly residents over the phone. 

The Muskegon County Sheriff's Office said their investigation started on Wednesday when an elderly Blue Lake Township woman called to report fraud, but noted the investigation could well extend beyond its jurisdiction. 

Source:
Elderly couple helps police take down phone call scam ring

ABC10 investigation prompts in-depth review of conservatorships in California

An evaluation of the Department of Developmental Services' conservatorship process has been released following ABC10's nearly three-year investigation

Author: Andie Judson 

SACRAMENTO, Calif. — "It's inhumane," said Deborah Findley. "Just absolutely inhumane."

Findley's son, Andrew, is one of the 400+ individuals conserved by the state agency, the Department of Developmental Services.

Jill Schutte's son, Garth, is another.

"I walk by his bedroom with his Elmos knowing that's where he should be, that's what he loves and that's what he wants," said Schutte.

Garth is a devout fan of Sesame Street's Elmo. He's not allowed to live at home, see his mother or his beloved stuffed toys.

Findley and Schutte are a few of many ABC10 spoke with for our investigation into California's conservatorship system, "The Price of Care: Taken by the State."

Our now nearly three-year investigation digs deep into the legal tool stripping someone unable to care for themselves of their civil rights and giving them to another person.

Our investigation uncovered a failing system and exposed alarming practices of the state agency responsible for the rights and needs of all Californians with disabilities: The Department of Developmental Services (DDS).

"The Price of Care" has been credited for getting the first-of-its-kind legislation passed, AB 1663, as well as forcing DDS to announce new reform initiatives, including the creation of a national panel of experts to review the state agency's conservatorship process.

Now, the panel has released its findings in a new report.

"There's no question that this panel was put together and that this report was put out there because of the ABC10 series," said Disability Voices United President Judy Mark. "That is literally the only reason they did this."

The national panel consisted of 10 experts. Mark says they held five meetings and four focus groups, in which she was a part of the focus group with advocates.

Yet the panel did not interview any parents of those conserved by DDS, like Schutte or Findley.

"These are parents that are begging for access to their child," said Mark. "The fact this national committee did not take the time to listen to their point of view... they should've listened to them. The fact they didn't talk to them makes this whole report very problematic."

It's one of Mark's concerns about the panel's review. She wonders why the panel did not question if DDS, a massive $12 billion state agency, should be conservator at all to someone with very specific needs.

"Government should not be conserving people. That's just a bottom line," said Mark. "It doesn't happen in most states in the country and we just shouldn't be doing it."

ABC10's investigation, The Price of Care: Taken by the State, uncovered how DDS obtains conservatorship and then gives the responsibility of caregiving to their regional centers. These centers operate under DDS and are located across the state to provide first-hand services to clients with disabilities.

"The agencies that are actually serving as the day-to-day conservators are the agencies that are the decision makers about what services a person receives," said Mark. "So there is actually no advocacy happening for this individual in their lives. They are locked away. They are pushed away. They have no one watching to see how they're doing."

The report also showed 81% of those conserved by DDS are moved into facilities; something Mark describes as "highly restrictive institutionalized settings."

"That means people do not have free choice and control over their lives at all," said Mark. "These settings are very institution-like, we know there are high levels of abuse in these settings."

These facilities are where Garth and Andrew live. When DDS conserved and moved them, their families had no idea where they were located.

"We had absolutely no idea," said Schutte. "They would not even say if he was in Sacramento. We did not know."

"Prisoners... they get visitors," said Findley. "My child is not allowed any of that."

A 2022 California State Audit found DDS is not properly monitoring these facilities. In a one-on-one interview with ABC10, the state's audit team told ABC10 the lack of monitoring by DDS has led to life-threatening mismanagement of medications and even mold in some facilities. It's why Mark hoped the panel would've recommended changing the fact the vast majority of DDS conservatees live there.

"This report should've made this recommendation; these individuals should've been moved out of these institutionalized settings into more individualized housing arrangements with person-centered services," said Mark.

Because regional centers do this for other clients, we know it can be done, Mark explained.

"[Those conserved by DDS] should be living their best lives as opposed to lives just tucked away and out of sight, out of mind," said Mark.

But there was also a number of recommendations from the national panel Mark was pleased by.

"One of the most positive recommendations that comes out of this report is the commitment by DDS to increase education training for regional center staff, self advocates and family members around alternatives to conservatorship," said Mark.

She's pleased the panel recommended those conserved should have a thorough review to hear what exactly they want.

"It means they want to be asking that individual who is conserved what it is they want," said Mark. "What are their desires? Who do they want to be with? Where do they want to live?"

But these recommendations are massive undertakings for an already overwhelmed system.

"How are regional centers supposed to be implementing this without the funds? Because budgets are tight right now," said Dr. Barbara Imle.

Imle was a regional center service coordinator who left to get her doctorate researching this system. She found for DDS' 21 different regional centers throughout the state, there's 21 different ways of doing things.

"Each regional center is doing something different," said Imle.

It's an issue the national panel recommended should be changed by DDS writing guidelines to create consistency across regional centers.

"Those types of things are very important because they're not happening right now," said Imle.

But for regional center service coordinators - the staff actually working one-on-one with clients with developmental disabilities - Imle is concerned the panel's recommendations could add more to coordinators' already overloaded plates.

"I don't feel it's fair to just put it on service coordinators and have them absorb the extra work," said Imle.

How implementing the panel's recommendations is actually going to happen is a question both Imle and Mark have. 

"It's vague," said Imle in regards to directions or specificities in the implementation process. "I think it's intentionally vague."

"There's so many details about these recommendations that we still don't know if these recommendations are actually going to get implemented," said Mark.

So, ABC10 asked DDS for specifics, including if they plan to implement the national panel's recommendations? If so, when and what's their timeline? And with what money from their budget? Here is the response from DDS Director Nancy Bargmann.

"The six-month examination by the national panel of experts provided important recommendations to DDS to improve how we manage conservatorships and to enhance safeguards those in these conservatorships.

The panel noted that DDS’ limited role in conservatorships is appropriate along with the implementation of the recommended improvements. As we continue to review the continued need for conservatorships where DDS is the conservator, as well as actively explore alternative ways to meet the needs of an individual or family, it is likely the number of DDS conservatorships will continue to decline. At all times, DDS only enters into a conservatorship when there is clear and convincing evidence it is necessary to protect an individual’s well-being, and that there is no appropriate friend or family member who can provide the needed care.

The specific processes used by the panel were not dictated by DDS, and our department cannot speak to specific elements of their examination.

DDS is reviewing the panel’s recommendations and plans to implement them. In some cases, this implementation is underway or already completed. In others, time will be needed to ensure change occurs effectively, permanently and safely. Since the review and analysis of this report continues, we are not able at this time to elaborate on each recommendation, timeline for implementation, or expense.

We take this report and the work that went into it very seriously. The panel’s report provides a roadmap DDS will use to continually improve how we deliver services to those in particular need of help to be safe and supported."

While experts are pleased to see the start of some desperately needed reform, families ABC10 highlighted in our investigation are still at their wit's end, unable to be with their loved ones.

"The fact that he's not allowed to spent time with his family is just a crime," said Garth's brother, Ian Schutte.

Full Article & Source:
ABC10 investigation prompts in-depth review of conservatorships in California

Baker hearing looks to strengthen guardianship laws, prevent elder abuse

By Bill O’Boyle

WILKES-BARRE — The Senate Judiciary Committee, chaired by Sen. Lisa Baker, this week held a joint public hearing with the Senate Aging and Youth Committee, chaired by Sen. Judy Ward, on strengthening guardianship laws and preventing elder abuse in Pennsylvania.

Baker, R-Lehman Township, said when an adult of any age is deemed incapacitated by a court, a guardian may be appointed to become responsible for making certain decisions on their behalf, including financial, medical and personal matters.

“Our current court-appointed guardianship process in Pennsylvania needs to be improved,” Baker said. “We must ensure individuals requiring assistance are properly represented and have their rights safeguarded by properly certifying legal guardians, limiting the abuse of the system and enhancing our laws to protect the vulnerable.”

Ward, R-30, said appointing a guardian for a person represents a serious step that must be taken with great caution and the utmost respect for the person’s basic rights.

“This is an issue that can touch all Pennsylvanians,” Ward said. “It’s important that we take a proactive approach and identify and address issues with our current system. With the information gleaned from this hearing, we can ensure that the Pennsylvania’s guardianship system meets the needs of our citizens in the 21st century.”

To strengthen the guardianship laws in Pennsylvania, Baker, along with Sen. Art Haywood, D-4, recently introduced Senate Bill 506 to provide alternatives to appointed guardianships.

The bill would require courts to automatically appoint counsel to individuals undergoing the guardianship process, consider other less restrictive alternatives before imposing a guardianship, and institute training and screening of professional guardians.

This legislation originated from an unfortunate situation that occurred when Sen. Haywood’s neighbor was taken advantage of by the unscrupulous practices of a professional guardian.

“While guardianship can be an appropriate tool to support some individuals who cannot make decisions themselves, it should be limited and used only as a last resort,” Baker said. “Alternatives to guardianship may prove equally effective at a substantially lower emotional and financial cost.”

During the hearing, testimony was given by professionals in the elder and disability law fields to provide input on the current flaws in Pennsylvania’s guardianship process.

Panelists discussed how Pennsylvania is one of only eight states in the U.S. that does not automatically appoint counsel to represent alleged incapacitated persons, and highlighted the necessity for training and oversight of guardians to prevent waste, fraud and abuse.

“Unfortunately, cases where guardians have stolen or misused money belonging to the people they are legally charged with looking after are not uncommon,” Baker said. “We must have capable people step in and protect their financial interests.”

Senate Bill 506 has received bipartisan approval and is supported by the Pennsylvania Bar Association, Disability Rights PA, and other advocacy groups because it helps prevent fraud, abuse, and exploitation, and increases representation.

Casey, Cardin bill would expand Medicaid,

Medicare dental, vision, hearing coverage

U.S. Senators Bob Casey, D-Scranton, and Ben Cardin, D-MD, will introduce legislation to enable more Medicaid and Medicare beneficiaries to access comprehensive dental, vision, and hearing coverage.

Medicare does not cover those services, leaving many beneficiaries with no other options but to buy stopgap, short-term plans or go without coverage, often facing exorbitant out-of-pocket costs for basic care.

Medicaid can provide optional dental, vision, and hearing services, but the extent of the coverage varies by state. The Medicare and Medicaid Dental, Vision, and Hearing Benefit Act would allow Medicare to cover dental, vision, and hearing services and increase the federal investment in Medicaid, incentivizing more states to provide these comprehensive services.

“Because of a patchwork of limited health care coverage options for Medicare and Medicaid beneficiaries, many older adults, people with disabilities, and low-income families have inconsistent access to basic dental, vision, and hearing services,” Casey said. “Cost should not be a barrier to care, and all Americans deserve access to comprehensive dental, vision, and hearing coverage, no matter what state they live in or how much money they make. This bill builds on the promise of Medicaid and Medicare to expand services that people need and help them avoid costly emergencies.”

Research shows that untreated dental, vision, and hearing problems can have negative physical and mental health consequences. People with lower incomes are three times more likely to have four or more untreated cavities than adults with higher incomes or private insurance.

Vision loss is associated with increased fall risks and mobility limitations among older adults, while hearing loss is associated with an increased risk of social isolation and cognitive decline.

The Medicare and Medicaid Dental, Vision, and Hearing Benefit Act would strengthen coverage for dental, vision, and hearing services under Medicare by repealing the statutory exclusion that restricts coverage of such services.

It would expand Medicare coverage to ensure beneficiaries are covered for routine exams and other preventive care, as well as coverage for items like dentures, eyeglasses, and hearing aids.

Full Article & Source:
Baker hearing looks to strengthen guardianship laws, prevent elder abuse

Michigan woman makes history in guardianship case, advocates for alternative option

By: Heather Catallo

(WXYZ) — A Wayne County Probate Judge recently made a historic decision. Instead of putting a Dearborn Heights woman under guardianship, he allowed her to retain her independence with something called Supported Decision-Making.

If you’re put under guardianship, that means a court has declared you legally incapacitated. You lose the right to get married, decide what doctor you want to see, or even choose where you want to live. Now one woman with an intellectual disability has shown the state that there is another tool families can use that’s less extreme than guardianship.

Linda VanWormer loves her job. The 56-year-old works at STEP (Services to Enhance Potential) in Dearborn. She also just made history in Michigan.

That’s because Wayne County Chief Probate Judge Freddie Burton Junior just issued an order, denying a petition that would have put Linda under guardianship. Instead, he granted her the freedom to make her own choices using something called Supported Decision-Making, or SDM.

“I do call the shots now,” Linda told 7 Investigator Heather Catallo.

Linda has an intellectual disability. She was adopted at the age of 5 into a big family of 6 other siblings. Her younger sister Amy Peckinpaugh has always been one of Linda’s main sources of help, support and love.

“I'm very proud,” said Amy Peckinpaugh.

Back in 2011, Amy found out Linda’s boyfriend was abusing her. So, Amy petitioned the court for partial guardianship of Linda.  “It allowed me to say that Linda couldn't go back up north and live with her abuser,” said Amy. “I had to make that decision to protect her. And so that is why I did that. But it meant I took that right from her. She couldn't consent to treatment. She couldn't decide where she wanted to move.”

After 10 years of guardianship, Amy decided to restore Linda’s rights. Linda lives in a group home with friends, she works, and they use Supported Decision-Making when Linda needs a little extra help.

“Linda uses her family, her friends, providers that support her when she wants to make a decision, she comes to them, and if she needs some extra input, she'll say, ‘Hey, what do you think of this,’” said Amy.

Amy and Linda even hired an attorney to create estate planning documents so Amy can step in to make medical and legal decisions if needed.

But then, a mix up at Linda’s mental health support agency prompted a social worker to petition the court to put Linda back under guardianship.

“Now we're stuck in the system and we have to actually go to court and fight. And at that point, I was really angry. I work in the disability community-- I lost some faith. How are we doing this to people? It's not okay,” said Amy.

The agency quickly realized their mistake and hired lawyers and experts to help Linda fight the guardianship.

“My favorite question when it comes to guardianship, what else have you tried? Before we decide to take rights away, shouldn't we ask that question? Rights are precious,” said Jonathan Martinis, the Senior Director for Law and Policy at the Burton Blatt Institute at Syracuse University.

In courts across the country, Martinis has successfully argued adults with disabilities don’t always need the extreme step of guardianship. He says they can use Supported Decision-Making instead.

“For people with disabilities who have for thousands of years been assumed not to be able to do things, what Supported Decision-Making is, is a way to be like you and me to the maximum of their abilities. Because it says that people with disabilities can understand things if it's explained to them,” said Martinis.

Linda and Amy say at first the judge was skeptical because there’s nothing in Michigan’s laws that establish SDM. But after listening to Linda and to experts, Judge Burton issued a detailed opinion, agreeing that Linda and her family can make decisions about her life together without a guardian.

“I was so happy and relieved,” said Linda.

“Hopefully it paves the way for other individuals with intellectual and developmental disabilities to use Supported Decision-Making and other people to look at, including social workers,” said Amy.

“Judge Burton’s order demonstrates how Supported Decision-Making (SDM) is a less-restrictive alternative to a guardianship order in Michigan. Any judge in the state can use SDM as an alternative to guardianship without any change in Michigan law. Disability Rights Michigan would support legislation to modify guardianship statutes in Michigan, requiring judges to consider SDM as an alternative to guardianship. This simple change, coupled with increased education and awareness of SDM, will lead to less unnecessary guardianships and more independence and freedom for citizens with disabilities in Michigan,” said Kyle Williams, Director of Litigation for Disability Rights Michigan.

23 states have added Supported Decision-Making as an option to their laws. Now Linda and Amy want Michigan to do the same, and Linda is already lobbying lawmakers to get changes made.

“I want people to know my story and so they can make better decisions on their own by themselves,” said Linda.

Full Article & Source:
Michigan woman makes history in guardianship case, advocates for alternative option

Pizza delivery driver helps 90-year-old woman

 

Source:
Pizza delivery driver helps 90-year-old woman

Weak guardianship laws undermine personhood, experts warn

By Lauren Jessop

Alzheimer's patient Dorothy Eckert and her husband John Eckert hold hands at their home in Norristown Pa., Thursday, April 19, 2007.
Matt Rourke/AP Photo

(The Center Square) – At a joint committee hearing on Tuesday, experts weighed in on legislation that seeks to strengthen guardianship laws, further protecting the rights of residents deemed incapable of making decisions for themselves.

Without stronger protections in Pennsylvania, however, guardianships may cause more harm than not.

Members of the Senate Judiciary and Aging and Youth committees heard testimony from experts who overwhelmingly believe guardianship should be used only as a last resort and are supportive of policies that offer more safeguards.

In her opening remarks, Sen. Lisa Baker, R-Dallas, majority chair of the Judiciary Committee – and the sole Republican sponsor of Senate Bill 506 – said the bill’s main goals would be to ensure an attorney is provided to alleged incapacitated individuals; require courts consider less restrictive alternatives before appointing a guardian; and would need professional guardians to be certified.

Pennsylvania is one of only a few states that do not mandate appointment of counsel in guardianship proceedings. Current law allows judges to use their discretion over whether to appoint an attorney. Additionally, there is limited oversight of professional guardians, and procedures vary from county to county.

Sen. Judy Ward, R-Lewistown, majority chair of the Committee on Aging and Youth, said appointing a guardian for someone is a serious step which must be taken with great caution and utmost respect for the person’s basic rights – a sentiment echoed by many others.

Lois Murphy, judge of the Court of Common Pleas in Montgomery County – who also serves on the Advisory Council to the Supreme Court on Elder Justice – said the courts are making a major effort to improve their ability to monitor court-appointed guardians, and to increase the information available on cases.

The Guardian Tracking System, in use since 2019, allows judges across the state to share and view information on prospective guardians – such as whether they have criminal records. It can also identify red flags on the spending of funds by a guardian.

Murphy credited the system for the ability to access data she provided to the committees. As of the end of 2022, 44% of the almost 19,000 Pennsylvanians currently under guardianship are adults over the age of 60 and 62% of those cases have guardians that include one or more family members.

Attorney Jennifer Garman, director of government affairs for Disability Rights Pennsylvania, said guardianship is largely happening to people without trained representation.

The information she provided showed that in 2019, less than 18% of statewide cases were contested – with 45 out of 67 counties reporting no contested cases.

Guardianship also applies to young adults who have disabilities or are cognitively impaired due to illness or injuries. Garman noted that unlike the elderly, who may spend the last few years of their lives under guardianship, young adults could spend decades. Without counsel, many families are unaware there are alternatives, or that they can go back to court to have the guardianship removed if appropriate.

“Parents of young adults with disabilities are often misinformed by schools, health care providers, disability service providers, that guardianship is necessary when their child turns 18,” said Garman. She added that the bill would ensure alternatives are explored.

While there is wide agreement that changes are needed, funding is a concern.

Sally Schoffstal, from the Pennsylvania Association of Elder Law Attorneys, said they do not support mandatory appointed counsel because most counties do not have the resources and personnel to fulfill the requirement, preferring to rely on the flexibility given to judges to determine if counsel is required.

On the subject of guardian compensation, she said the association’s view is that it must be on a modest scale but provide sufficient compensation for work performed.

Committee members also heard from the Elder Law Section of the Pennsylvania Bar Association, Huntington-Bedford-Fulton Area Agency on Aging, AARP Pennsylvania, and the Dauphin County District Attorney’s Office.

“The experiences of those who work with the system on a regular basis are vital, as they see firsthand how the current system functions, and what needs to be done to strengthen it and make it work better for Pennsylvanians,” Baker said.

She added that the insights shared will help guide them as they weigh potential changes to the guardianship system.

Full Article & Source:
Weak guardianship laws undermine personhood, experts warn