Guest Blogger: Jonathan Martinis, Esq., J.D., Rethinking Guardianship Consultant
What’s your favorite right? What’s the right that makes you
proudest, the one you’d fight for if someone tried to take it away? Is
it freedom of speech? Voting? Life, liberty, and the pursuit of
happiness?
What do these and all our other basic and bedrock rights have in
common? Choice. Without choice, we have no rights. Choice gives us the
power to decide what to say and keep secret, who governs us, and how,
where, and with whom we live, work, and play. By choosing – even when
others may disagree with our decisions – we assert our independence and
honor those who marched, fought, voted, and taught to ensure that we
have choices to make.
Britney Spears and Michael Oher should make us think about how
fragile our rights and choices are. Both were court-ordered into
conservatorship (called “guardianship” in most states) and lost their
right to make fundamental choices about their lives. They, like millions
of others, became “wards,” with their appointed conservators given
“substantial and often complete authority over [their] lives.”[1]
Both have been in the news because, after more than a decade in
conservatorship, they fought to regain the rights they lost, and made us
wonder whether they should have lost their rights in the first place.
When people truly cannot make decisions and direct their
lives, guardianship and conservatorship can be helpful or even
life-saving. However, research and scholarship show that, if people can
make choices, by themselves or with support, taking away their legal
right to do so can cause “significant negative impacts on physical and
mental health, longevity, ability to function, and reports of subjective
well-being.” [2]
This is not a new concern. Decades before the #FreeBritney movement,
Congress found that “the typical ward has fewer rights than the typical
convicted felon” and called guardianship and conservatorship the “most
punitive civil penalty that can be levied against an American citizen,
with the exception . . . of the death penalty.”[3]
Since then, study after study has found that older adults and people
with disabilities who make more decisions and exercise more control over
their lives – who have more self-determination – have a better quality of life.[4] A recent national study found that, among people with disabilities who had similar abilities and limitations, those that did not have guardians were more likely to live independently, work, have friends, and be active in their communities than those with guardians.[5]
In just the last ten years, since I had the honor of representing a
young Virginian named Jenny Hatch in the first trial holding that a
person had the right to use an alternative called Supported
Decision-Making instead of being ordered into a permanent guardianship,[6]
over 20 states have changed their laws to recognize and prefer such
alternatives, when appropriate, over guardianship and conservatorship.[7]
Even still, at a time when there are more laws, supports, services,
and technology designed to enhance our independence than ever before,
the estimated number of adults in guardianship and conservatorship has
tripled since 1995.[8]
And even though most state laws say that guardianships and
conservatorships should be limited and remove only the rights that
people cannot exercise, a study found that over 90% remove all rights.[9]
Most disturbingly, research has documented a “school to guardianship
pipeline” funneling young adults with disabilities into legal dependency
and loss of rights from which the vast majority will never return.[10]
Why? Guardianship was originally envisioned as a last resort. Almost
all state laws say that people should not be ordered into guardianship
unless they are “unable” or “incapable” of making decisions and, even
then, only if there are no less-restrictive alternatives available.[11]
Nevertheless, the sad but true fact remains: laws alone don’t and
can’t change minds or behavior – if they did, no one would speed.
Despite laws and policy, research, best intentions and practices,
people like Michael Oher, Britney Spears, and countless others who
aren’t celebrities, will continue to be ordered into guardianship every
day unless we ask ourselves the question I began with: what’s your
favorite right? Then, and only then, will we realize that we’re all
only one accident, stroke, or diagnosis, and one well-meaning (or not)
family member, friend, or stranger away from losing it, from having
“fewer rights than a convicted felon.” Then we can begin asking
questions before seeking guardianship or conservatorship like,
“What else have we tried? What else could we try to help this person
without taking away their rights?” Maybe alternatives like Supported
Decision-Making, Powers of Attorney, or Psychiatric Advance Directives
would work for the person and improve their quality of life. Maybe they
won’t and guardianship or conservatorship will be appropriate.
If we don’t ask those questions now – if we don’t make sure that
guardianship and conservatorship are the last resorts they’re meant to
be – who is going to ask them when we need help?
[1]
Judge David Hardy, Who Is Guarding the Guardians? A Localized Call for
Improved Guardianship Systems and Monitoring, 4 NAELA J. 1, 7 (2008).
[2]
Wright JL. Guardianship for your own good: Improving the well-being of
respondents and wards in the USA. Int J Law Psychiatry. 2010
Nov-Dec;33(5-6):350-68.
[4]
E.g., g., Karrie A. Shogren et al., Relationships Between
Self-Determination and Postschool Outcomes for Youth with Disabilities, 4
J. Special Educ. 256 (2015); Laurie Powers et al., My Life: Effects of a
Longitudinal, Randomized Study of Self-Determination Enhancement on the
Transition Outcomes of Youth in Foster Care and Special Education, 34
Child. & Youth Services Rev. 2179 (2012); Janette McDougall et al.,
The Importance of Self-Determination to Perceived Quality of Life for
Youth and Young Adults with Chronic Conditions and Disabilities, 31
Remedial & Special Educ. 252 (2010); Ishita Khemka et al.,
Evaluation of a Decision-Making Curriculum Designed to Empower Women
with Mental Retardation to Resist Abuse, 110 Am. J. Mental Retardation
193 (2005)
[5]
Bradley, V. J., Hiersteiner, D., Li, H., Bonardi, A., & Vegas, L.
(2020). What Do NCI Data Tell Us About the Characteristics and Outcomes
of Older Adults with IDD? The Developmental Disabilities Network
Journal, 2(2), 50–69.
[7] National Resource Center for Supported Decision-Making (n.d.) In your state. https://supporteddecisionmaking.org/in-your-state/
[8]
See, Windsor C. Schmidt, Guardianship: Court of Last Resort for the
Elderly and Disabled. Durham, NC: Carolina Academic Press (1995); Sandra
L. Reynolds, Guardianship Primavera: A First Look at Factors Associated
with Having a Legal Guardian Using a Nationally Representative Sample
of Community-Dwelling Adults. 6 Aging and Ment. Health, 109-120 (2002);
Brenda K. Uekert, Richard Van Duizend, R., Adult Guardianships: A “Best
Guess” National Estimate and the Momentum for Reform. In Future Trends
in State Courts 2011: Special Focus on Access to Justice (2011).
[9] Pamela Teaster, et al., Wards of the State: A National Study of Public Guardianship. Stetson Law Review, 37, 193-241 (2007).
[11]
Martinis, J., Harris, J., Fox, D., & Blanck, P. (2023). State
guardianship laws and supported decision-making in the United States
after Ross and Ross v. Hatch: Analysis and implications for research,
policy, education, and advocacy. Journal of Disability Policy Studies, 34(1), 8-16.
The Idaho Department of Finance is
hosting a roadshow with the goal of raising more awareness of fraud and
senior financial exploitation.
The
Fraud and Senior Financial Exploitation and Prevention Roadshow aims to
offer educational materials and resources to seniors, caregivers and
family members. This free event will be held from 3 p.m. to 5 p.m. Oct. 4
at the Westbank Convention Center in Idaho Falls.
In
2022, there were 88,262 fraud victims, all over the age of 60,
resulting in over $3.1 billion dollars lost, according to a report from
the FBI Elder Fraud Report 2022. The most common type of fraud is tech support scams, resulting in 17,810 victims.
“Ensuring Idahoans have the
information, tools, and resources to protect themselves and their loved
ones from becoming victims of fraud and senior financial exploitation is
very important to the IDOF and to me personally,” Patricia Perkins,
director of the Idaho Department of Finance, said in a news release.
The Department of Finance also will be joined by AARP of Idaho and the Idaho Commission of Aging to provide more resources.
A San Francisco judge sent Sen. Dianne Feinstein's
(D-CA) lawsuit against the trustees of her late husband's estate into
mediation on Monday, hoping to resolve the three legal cases filed by
her daughter over the summer.
Katherine Feinstein, who has power
of attorney in her mother's legal affairs, filed three lawsuits in
recent months alleging the managers of Richard Blum's estate, the senator's husband who died in February 2022, committed "financial elder abuse."
Superior Court Judge Roger Picquet urged the parties to privately
conclude the matters through a dispute resolution process. While open to
negotiations, Blum trustees have denied any wrongdoings.
"I'm looking for a global outcome if we can get it," Picquet said in a hearing, per the San Francisco Chronicle.
Katherine
Feinstein alleged her mother is being stiffed on payments for large
medical bills, which she hoped to pay through reimbursement from the
marital trust.
The Blum trustees' attorney, Steven Braccini,
raised doubts multiple times about whether Katherine Feinstein has power
of attorney over her mother and stated his clients have "never denied
any disbursement to Sen. Feinstein, let alone for medical expenses" in
an interview with the San Francisco Chronicle. Michael Klein
and Marc Scholvinck are the two main trustees, but Katherine Feinstein
alleged they were not properly appointed by Blum or the senator. Dianne
Feinstein appointed her daughter as a co-trustee of the estate in August
2022.
In the latest court filing, Klein and Scholvinck, both longtime
business affiliates of Blum, point to Dianne Feinstein's high income,
claiming her net worth is more than $50 million.
The remainder of
the trust is expected to go to Blum's three daughters from a prior
marriage, Annette, Heidi, and Eileen Blum. A June lawsuit indicates a
rift between Katherine Feinstein and her stepsisters, as the three women
want to continue using the estate.
A Delaware County attorney was sentenced Monday to
2½ years of community control and ordered to repay his former clients
more than $100,000 for work he never completed.
The Ohio Supreme Court last year suspended Robert M. Owens
indefinitely, after evidence showed that he had bilked clients out of
thousands of dollars and lied to them about work promised to them. He
was accused of "deceitful and dishonest conduct, failing to communicate
and failing to provide a timely refund to four separate clients,"
according to the complaint filed by the court-appointed Ohio Board of
Professional Conduct.
He was later indicted in Delaware County on five theft charges, fourth and fifth-degree felonies.
In May, Owens pleaded guilty to each of the
counts. But that was after he told The New America conservative podcast
host that charges were fabricated in part due to his unsuccessful 2010
bid for Ohio Attorney General in which now Gov. Mike DeWine defeated
him.
"Ever since then, he's used his pressure
to come after me and constantly harass me ... tens of thousands of
dollars in fees to fight off all kinds of spurious charges."
Delaware County Common Pleas Court Judge David M. Gormley rejected
Owens' excuses and suggested he find a good job in order to pay
restitution of almost $122,000 to six victims. He also denied a motion
for intervention in lieu of conviction that would have prevented Owens
from having a felony record.
Client trust funds are commonly used by attorneys
for retainers and to manage cash flow, and help firms avoid mingling
client funds with law firm funds. They are not controlled by the court.
Mismanagement
of such trust accounts is "one of the most common ethical violations
committed by lawyers," according to Investopedia, a financial media
website.
Owens, whose billing rate was $300 per hour, in
2021 closed his practice in downtown Delaware, telling some of his
clients that he was dealing with "deep depression" following the death
of his father, court records state. He began his law practice in 1998.
In a 2015 story about attorneys use of polygraphs
in weeding out clients who might lie, Owens said of the practice:
"Usually, we’re talking about very serious crimes where the client’s
entire life is going to be in the balance."
MURFREESBORO, Tenn. (WKRN) — A Murfreesboro woman faces financial
exploitation and theft charges following an investigation by special
agents assigned to the Tennessee Bureau of Investigation’s Medicaid
Fraud Control Division.
According to the TBI, special agents began
investigating allegations surrounding paid caregiver Teresa Ann Smith,
61, in early May on information from the Tennessee Department of Human
Services.
During
the investigation, agents learned Smith instructed an elderly,
vulnerable man in her care to withdraw money from his bank account for
her benefit and additionally used the victim’s debit card for
unauthorized purchases.
Agents secured warrants last Wednesday
charging Smith with one count each of financial exploitation of a
vulnerable adult and theft. Agents subsequently arrested Smith and
booked her into the Rutherford County Jail on a $35,000 bond.
Significant lapses in financial judgment can raise the suspicion of dementia.
Key points
Family members may notice early “red flags” or warning signs of diminished financial capacity.
Dementia is the most important risk factor for diminished financial capacity.
In older people, early cognitive impairment can show up as diminished executive functioning.
If needed, consider having someone help oversee the older person’s financial transactions.
Family members and caregivers can be on the
lookout for the following early “red flags” or warning signs of
diminished financial capacity, particularly when the changes are clearly
different from the older person’s prior baseline financial skills:
Forgetfulness and memory lapses related to finances,
such as mismanagement of accounts, forgetting to open and pay bills,
paying bills twice, or forgetting to deposit checks, leading to late
payments or other problems
Poor judgment about finances, such as extreme unwarranted anxiety
about money or a new interest in lotteries or get-rich-quick schemes in
an individual who would not previously have considered the scheme
Struggling with simple math calculations and everyday financial tasks, such as figuring out a tip, balancing a checkbook, or interpreting a bank statement, for example
Disorganization and confusion about money, such as getting overwhelmed with financial decision-making and discussions, deterioration in a person’s ability to understand basic financial concepts
Significant changes in an older adult’s spending habits, such as uncharacteristic major purchases, gifts, or donations
Normal cognitive changes do occur as we age, often starting around age 50. Most of these changes arenot precursors of dementia.
Normal cognitive changes due to aging include difficulties with word
finding and taking a longer time to process and digest new information.
Some aspects of thinking, such as vocabulary, can actually improve
as we age. At the same time, in an older person, significant lapses in
financial judgment and uncharacteristic poor financial decision-making
may raise the suspicion of dementia.
Dementia
Dementia is the most important risk factor for diminished financial
capacity. Dementia typically develops gradually over several years. The
onset of dementia is usually insidious, with cognitive changes happening
gradually over time. Many individuals with early cognitive decline have no awareness there is a problem and don’t appreciate what their deficits are.
Problems with financial decision-making increase the risk of an older
adult becoming a victim of financial exploitation. As cognitive
abilities decline, older adults are much more susceptible to scams,
manipulative tactics, high-pressure sales pitches, fraud, identity theft, abuse of family agreements or power of attorney, exploiting money arrangements, and emotional blackmail.
Elder financial abuse affects millions of families worldwide each year.
Cognitive losses often decline from different causes and at different
rates. For some individuals, particularly with Alzheimer’s, memory
decline happens first, with language and social skills relatively
preserved. In older people, early cognitive impairment can show up as
diminished executive functioning, which includes the capacity to plan ahead and meet goals
(e.g., making and following a budget and setting financial goals),
control impulses (e.g., deciding when to buy and when to save), weigh
and analyze multiple factors in financial decision-making (e.g., compare
features and costs on big purchases, search for sales and deals),
handle unanticipated financial challenges, follow multiple-step
directions even when interrupted, and stay focused on financial tasks
despite distractions.
Warning Signs
Early warning signs of cognitive problems due to dementia can include
getting lost on familiar routes, missing or forgetting appointments,
having difficulty cooking, not paying bills, and having trouble with
appliances. Early dementia may present as significantly poor judgment in
decision-making, such as suddenly gifting the family vehicle to the
mail carrier. These are people who may have increased anxiety in
unfamiliar situations and be much more easily overwhelmed. They may rely
much more on family members for guidance or to answer questions for
them.
Distinguishing what might be normal aging from early dementia is
sometimes a matter of degree. Spouses often compensate for these early
deficits.
What a Family Can Do
To summarize, potential indicators of diminished financial capacity
include difficulty in handling routine financial tasks, impulsive
decisions, changes in organizational skills, and unusual behavior
surrounding money.
In response to these changes, families and caregivers can consider
having someone help oversee the older person’s financial transactions,
such as a trusted family member or professional fiduciary money manager.
It may be helpful to communicate with the bank, which may detect
unusual activity and transactions, and to consider online banking and
bill payments.
Recognizing and responding to early warning signs of diminished
financial capacity can help protect elders from financial exploitation
and families from its consequences.
According to the Social Security
Administration, financial crime against older Americans is a growing
problem, with people who have dementia at an especially high risk.
As
their memory and other thinking skills decline, people with dementia
may struggle to make financial decisions, the SSA said. They may not
remember or report the abuse — or understand that someone is taking
advantage of them. This abuse can occur anywhere, including at home or
in care settings.
According
to the SSA, victims of fraud who are 80 years and older lose an average
of $39,200 every year. Financial exploitation is reportedly the most
common form of elder abuse. However, only a small fraction of these
incidents are reported.
If
people recognize the common signs of financial exploitation and abuse,
they may be able to step in and help. According to the SAA, those signs
may include:
Unopened bills.
Unusual or large purchases.
Utilities being shut off due to unpaid bills.
Money given to telemarketers or soliciting companies.
Unexplained withdrawals from the person’s bank account.
The
SSA said there are things caregivers can do to reduce the risk of
financial abuse for people with dementia and similar conditions — like
Alzheimer’s — but stress that it’s important to make sure the person
being cared for is involved in deciding which safety measures to put
into place, when possible.
Some safety measures include:
Agreeing to spending limits on credit cards.
Signing up for the “Do Not Call” list at DoNotCall.gov.
Setting up auto-pay for bills instead of paying by check.
Signing up to receive automatic notifications for withdrawals from bank accounts or large charges to credit cards.
Requesting
electronic bank and credit card statements and watching for unusual
purchases or changes in how the person typically spends money.
Asking credit card companies to stop sending balance transfer checks and opting out of future solicitations.
Creating
a separate account to keep a small, agreed-upon amount of money that
the person can use for recreational activities, like meals with friends.
FAIRHOPE, Ala. (WALA)
- Fairhope Police said two family members, related by marriage, plotted
and stole thousands of dollars from another elderly family member. It
allegedly happened over several months. Both were arrested Monday,
September 11, 2023. One is charged with financial exploitation of the
elderly and the other with impersonating a peace officer.
Gerald
Anderson and uncle by marriage, Jerry Ward arrested and accused of
scamming elderly relative out of thousands over several months(Baldwin County Sheriff's Office)
Investigators
said one of the men would call the elderly victim and pretend to be a
law enforcement officer. He would tell her that the other family member
was an undercover drug buyer for the department and needed money, which
would later be reimbursed.
Fairhope
Police started looking into the case less than a week ago when other
family members of the alleged victim noticed several discrepancies in
the victim’s accounts. Police said more than $5,000 turned up missing
since January.
It didn’t take long for police to figure
out where it was allegedly going. Investigators said 27-year-old Gerald
Anderson came up with a scheme and his uncle, by marriage, 50-year-old
Jerry Ward helped him pull it off.
“Jerry
was calling our victim in this case and asking for money for Gerald to
make drug buys with because Gerald was supposedly working for Jerry as
an undercover, you know, drug person to buy drugs, so Gerald was
supposedly needing this money to make those purchases, so our victim in
this case was sending the money to Gerald to make these drug buys with,”
explained Lt. Shane Nolte with Fairhope Police.
Police
said the victim had supported Anderson financially for quite some time,
but that support had dwindled. They said that’s why Anderson came up
with the scheme and involved Ward. While Ward is only charged with
impersonating a peace officer at this point, investigators said they
believe he may have also been getting a cut of the money.
“They
both can face many more additional charges, depending on what else we
found,” Nolte said. “I know right now I can remember like eight
transactions in that January to August timeframe, so I don’t know how
many more she’s going to find at this point.”
Police said scams against the elderly are
all too common but when it comes from inside the family, it makes it an
even harder pill to swallow.
“It’s
bad to take advantage of your family like that, you know… How are you
hurting them? Is that money they’re going to need further down the line
for their own care? It…it does make it worse,” Nolte said.
Gerald
Anderson was released from the Baldwin County Jail after posting a bond
of $13,500. Jerry Ward also made bail. His bond was set at $5,000 for
the impersonating a peace officer.
Many of us take the decisions we make for ourselves everyday – from
where we live and work to who we vote for or marry – for granted. But
for an unknown number of people across the country, those rights were
legally taken away.
Stories of conservatorship and legal
guardianship for “pop princess” Britney Spears and football star Michael
Oher have gripped the nation. Many other stories have gone largely
untold.
A 'non-speaker' finds her voice
Becky King
Beth Papp (left) and Emily Ulan attended Taylor Swift's Eras Tour together in March 2023 in Glendale.
Mesa
resident Beth Papp is like many other 22-year-olds. She’s opinionated,
funny and a huge fan of Taylor Swift. She loves watching shows like
"Survivor" and trips to Target.
Papp refers to herself as a "non-speaker."
“I want everyone to know I’m in here!” Papp said.
To
communicate, Papp uses boards with letters and some symbols to spell
out phrases. This one is like a tablet. When Papp indicates a phrase is
complete, it’s read out loud.
Sometimes, she uses a board made of plastic or laminated paper, pointing to each letter.
Then her communication partner, Emily Ulan, reads them out.
Ulan has helped Papp learn how to do this over the past year. She also holds the boards up for Papp to access better.
“We
have a lot in common,” Ulan said. “It’s crazy because I do this for a
living, but she’s my first client. And I consider her more of a friend
than a client.”
'It's guardianship, or not.'
Becky King
Becky King, Beth Papp's mom, said that Papp began producing some words around a year old like most other babies do.
Papp’s mom, Becky King, said that like other babies, Papp began saying a few words at around a year old.
“And then at 18 months, it just … stopped,” she recalled.
A checkup soon after that produced an initial diagnosis.
“PDD-NOS,”
said King. “Which is Pervasive Development Disorder Not Otherwise
Specified. And my understanding is they don’t actually use that anymore
because now autism has become a broader spectrum.”
Then at 5 years
old, Papp was officially diagnosed with autism. King said that as her
daughter grew closer to adulthood, knowing that services would begin to
change or even disappear was stressful.
“What are we supposed to do next?” said King. “She still has no way to reliably communicate.”
So, she began looking into their options.
“Honestly back then there wasn’t a lot of options,” King said. “It’s guardianship, or not.”
King
remembers the intense pressure, and scary impressions about what could
happen if she didn’t act as Papp’s 18th birthday approached.
“Everyone
including the doctors said ‘Well of course, it’s gotta be a full
guardianship. Like, clearly she can’t possibly take care of herself or
have an opinion about things. So this is the way you guys should do
it,’” King recounted. “So we just kind of did it that way.”
“It is
unfortunately really common that parents of young adults with–
especially with intellectual developmental disabilities are told by
schools, by doctors, by everyone around them, that guardianship is
something they should seek as a matter of course,” said Zoe
Brennan-Krohn, an attorney with the ACLU’s Disability Rights Program.
According to Brennan-Krohn that advice isn’t just incorrect, but harmful.
“There
are a lot of alternative ways that people, young adults, adults with
disabilities, can get support and help without losing all of their
rights,” Brennan-Krohn said. “Guardianship is very hard to undo and is
very often permanent.”
A new option: Supported decision making
Becky King
Around 18 months old, Becky King said daughter Beth Papp completely stopped producing any language.
“Guardianship
at its core means the court is removing someone’s right to act for
themself,” said Morgan Whitlatch, the director of Supported Decision
Making Initiatives at the Center for Public Representation in
Washington, D.C. “It’s been called a kind of civil death, a
non-personhood.”
You might be thinking: ‘I’ve heard of that! It’s
like what Britney Spears went through, or what Michael Oher is
petitioning for release from.’
“In some states they might call a
decision-making authority a conservatorship,” said Meagham Kramer, an
attorney who works with the Arizona Disability Law Center. “In Arizona,
conservatorship really has to do more with money and guardianship has to
do more with general decision-making.”
In June, supported
decision making was signed into Arizona law as an alternative to
guardianship. Whitlatch says it’s something everyone uses, regardless of
their disability status or age.
“Every day we all use the advice
and we get advice from people we trust,” said Whitlatch. “We have people
help us weigh the pros and cons.”
Whitlatch added that supported
decision making could be argued for as an accommodation under the
Americans with Disabilities Act.
Kramer said that while that’s
true, having supported decision making specifically signed into law
bolsters chances of properly implementing it.
“We’ve now passed
the thing, and we need everyone to understand the thing so it’s more
than just a piece of paper,” Kramer said, “[so] it actually allows
people to use these supported decision making agreements to make
decisions in their lives.”
'I want to be my own guardian.'
Becky King
The
opportunity for Beth Papp to learn how to use her communication method
came from her Empowerment Scholarship Account, which is paid for through
the state.
King said now that Papp can
communicate, it’s like she’s finally been able to get to know her
daughter. And Papp said that even though she wants to walk back her
guardianship, the two remain close.
“Spending time with her is my fav,” Papp said. “She gets me.”
But Papp’s communication method isn’t recognized by the court system, King said.
Some consider it controversial due to concerns surrounding authorship – or who’s crafting and influencing the messages.
But one message is clear: “I want to be my own guardian. I want to make decisions for myself,” Papp said.
Whitlatch
said this isn’t uncommon for people like Papp. There’s a wide range of
communication methods and experiences. But according to Whitlatch, for
the most part “people who don't speak to communicate or have other
mechanisms for communication are those that are probably most impacted
by guardianship and are less likely to have their "voice" heard in
court.”
A protected person’s condition and circumstances can
change. But no matter what, the evidence for whether the law considers
someone ‘incapacitated’ has to be ‘clear and convincing.’
“Frequently,
there is a tendency by society to infantilize people with developmental
disabilities, to assume that their capacity or their abilities are
somehow static,” Whitlatch said, “that they won’t change over time. And
that’s not accurate.”
Guardianship courts fall short on accessibility
Becky King
Beth
Papp attended Taylor Swift's Eras Tour in March 2023 when the artist
performed in Glendale. Papp says she loves Swift's "Red" album.
Brennan-Krohn
said it’s important to reconsider the ways we consider and interact
with people with disabilities at all levels. It’s about “being aware of
where this very deep-seated sense of paternalism crops up, and how we
can try to challenge that,” she said.
Which Brennan-Krohn said means treating people with disabilities as adults, with their own preferences and wishes.
“It
is striking and troubling that the court systems that you go through to
get into a guardianship or to get out of a guardianship are very, very
inaccessible to people with disabilities,” said Brennan-Krohn.
The
ADA requires courts to make reasonable accommodations for people but,
Brennan-Krohn said, “it’s very rare that courts slow that process down
in a way that can make it actually accessible to someone with a
disability.”
Kramer said that in Arizona courts, an ADA coordinator works to ensure accommodation requests are met.
“Often
a big part of the labor in getting an accommodation granted is
educating the people who you need an accommodation from or the system or
entity that you need an accommodation from about your disability,” said
Kramer.
Which includes accommodations for how someone
communicates. But according to Kramer, sometimes logistics – like not
enough certified interpreters or scheduling issues – get in the way.
In Papp’s case: Her communication method is so new that there’s little research on it.
King
compares it to driving a car: Starting off with an instructor to give
pointers, help you focus and learn, until you’re ready to hit the road
on your own.
'Music is my voice'
With the lengthy, uphill legal battle she’s facing, Papp’s taking a breather.
“It’s
an incredibly intense experience for a completely verbal, non-autistic
person,” King said. “But she said that she was not up to a day-long
hearing. And her direct quote to me was: ‘I didn’t realize my spelling
would be on trial. … I can’t do this right now.’”
But Papp isn’t giving up.
“I’m trying to open the doors that were closed for me!” said Papp. “Ever since I started spelling this has been my goal!”
To express her feelings, Papp wrote a song.
“I
had a dream where I was heard, where people listened to my words” the
lyrics read. “Hear me, listen to my voice. I am here inside.”
The song closes out with the lines: “I have no more to give. I have tried and tried. And now, it’s your turn.”
Papp said it's a direct message, to those who have been in her life "but also the world!"
“Music is my voice,” she said. “It’s how I’ve always communicated, even before I started spelling.”
Papp said she wants to advocate for other non-speakers, too.
“I want people to presume competence in everyone,” said Papp.
Papp said she hopes change will come with time.
“OMG,”
she said, “I hope it’s a totally different conversation where we are
not questioning validity. Instead, we incorporate non-speakers into any
decision making regarding us.”
Despite legal difficulties, her vision for the future remains.
“Having
the chance to make my own decisions about life is the dream,” Papp
said. “It is as simple as deciding where I want to live and how I want
to spend my time.”
But outside of all that, Papp is just focused on "feeling 22," as her favorite artist might say.
Denver District Attorney Beth McCann has charged Stefanie Lea Scott
with theft from an at-risk person, financial exploitation of an at-risk
person and caretaker neglect. The DA is asking for help from others who
believe they have been a victim of theft from Scott.
Stefanie Lea Scott
Denver DA
According to investigators, Scott
began working as an in-home caregiver for an older Denver man. On April
5, Scott assumed power of attorney for the mean and she retained power
of attorney until June 20. During that time, prosecutors allege Scott
stole $49,829 by writing checks to herself and transferring money from
the man's bank account without his knowledge. Scott is also the "Senior
Light LLC" agent, registered with the Colorado Secretary of State.
Anyone
who believes they have been a victim of financial exploitation by Scott
should call Det. Dalton Montgomery at 720-913-6870.
"We must hold
people accountable for preying on society's vulnerable, and that's
exactly what we intend to do in this case. We are also hoping that
anyone else who Stefanie Scott may have victimized will now come
forward," said McCann in a statement.
This is what The Boston Globe had to say about scammers who target elders:
Making banks and brokers partners in the effort will help.
The fact pattern is now so well established that it’s referred to as the “grandparent scam.”
Someone purporting to be the
grandchild in trouble calls granny needing bail money or money for a
lawyer, who then gets on the phone to confirm the “crisis.” Grandma
rushes off to the bank to get the required cash, packs it up as told to
hand to a courier or Uber driver sent to pick it up. Then it’s usually
gone forever.
A
93-year-old Pembroke grandmother is among those who have fallen for such
a scam. But she has plenty of company here and around the country.
Online and digital scammers cost Americans $10 billion last year,
according to the FBI — about $3 billion of that was lost by seniors.
And only 1 in 44 incidents of
elder financial exploitation is reported, according to the National
Adult Protective Services Association.
Seniors are often too embarrassed to tell even family members that they have been scammed.
“It’s
a frequent enough problem that we really need to do something about
it,” Secretary of State Bill Galvin told the editorial board. “The
sophistication of the scammers has increased. And if an electronic
transfer is used, once that money disappears, it’s gone.”
And
so Galvin has filed a bill designed to put the brakes on a transaction
if a bank teller, broker, or financial adviser suspects that an elder
(defined as 60 and older) or disabled adult client is in danger of being
exploited. It allows financial institutions to delay a disbursement and
notify a relevant adult protective services agency and the secretary’s
office if there is “reasonable cause” to believe financial exploitation
has occurred or is being attempted.
“By
and large these people (who are being scammed) are competent,” Galvin
said. “But they need a little time, a little breathing room to
reconsider.”
That’s
Galvin’s aim with the bill — slow down the process that scammers have
counted on to push panicked elders into making hasty decisions. The
proposed state legislation pairs nicely with an ongoing federal effort —
under the 2018 Senior Safe Act — that offers bank and financial
services employees training on spotting potential victims and immunity
when they report such incidents to authorities.
Galvin’s
bill, filed in conjunction with Senator Paul Feeney and Representative
James M. Murphy, co-chairs of the Joint Committee on Financial Services,
would also provide immunity from civil liability for those bank
employees trying to do the right thing.
Now, not all scammers are
strangers. It’s not uncommon to have family members attempt to exploit
elders, and a few of those cases have been reported to Galvin’s office
by brokers and financial advisers. In fact, according to a 2019 study by
the Consumer Financial Protection Bureau, “losses were greater when the
older adult knew the suspect.”
Galvin’s
bill deals with that possibility as well, including a provision
designed to make sure that relatives or other third parties who might
actually be engaged in the exploitation of elders themselves aren’t
notified of a bank’s suspicions.
Federal
efforts, including those of the Justice Department, have been largely
aimed at spreading the word, educating people about each new scheme as
it picks up speed. But for many that will come too late. States are now
trying to close that gap — to take the more proactive slow-it-down
approach.
A bill
backed by Secretary of State Brad Raffensperger of Georgia and passed
unanimously by both branches of the Georgia Legislature took exactly
that approach. The Senior Protections from Exploitation Against Retirees
Act was signed into law by Governor Brian Kemp in May.
Earlier
this month, Connecticut Governor Ned Lamont signed a bill to give
financial institutions the ability to suspend disbursements for up to 45
days if the exploitation of an elder is suspected. (The Massachusetts
bill’s holds would expire after 15 days.) The Connecticut bill goes into
effect July 2024. It, too, passed unanimously in both legislative
branches.
Now Georgia,
where Republicans hold both branches of the Legislature and the
governorship, and Connecticut, where Democrats hold all three, would
seem to have little in common — except perhaps their common-sense
approach to doing the right thing by seniors — preventing their
exploitation before it robs them of their savings.
The Galvin-Feeney-Murphy bill is all about doing the right thing by
seniors here in Massachusetts. If Georgia and Connecticut can get it
done, we can too.
A state senator says the unexplained deaths are of “grave concern” and calls for greater accountability.
Eight incapacitated people in the state’s care died during the past three years and authorities don’t know exactly how.
The adults, all under public guardianship, died of what medical
examiners described as “undetermined” circumstances, while noting that
over-medication was the cause of several of those deaths. Among them is a
woman whose death was deemed a “homicide” by medical examiners.
The attorney general’s office closed the homicide case without
prosecution due to insufficient evidence, spokeswoman Danna Hayes said
in late August.
Hayes said that “due to a lack of evidence of criminal conduct,”
several other cases “are not the subject of criminal investigations” by
the office’s criminal division or Healthcare Crimes Unit, which is a
specialized team that investigates abuse and neglect.
Meanwhile, Maine State Police confirmed they have an open case for
another of the eight, the death of Laurie Wall, 51, a non-verbal woman
who used a wheelchair and had a developmental disability. Medical
examiners said the circumstances of her death are “undetermined.”
A state legislator who chairs the Health and Human Services Committee
said the deaths show the need for better oversight of the state’s
public guardians, who are appointed and overseen by 16 part-time,
elected probate judges.
“It causes grave concern,” said state Sen. Joe Baldacci (D-Bangor).
“And I do think that the Legislature needs to be brought in to correct
what problems the (Attorney General’s) Healthcare Crimes Unit feels were
evident in these situations and to make efforts to prevent them in the
future.”
In Maine, at least a half-dozen agencies could investigate such
deaths. Officials with the attorney general’s office refused to say how
many of the eight cases were referred to the Healthcare Crimes Unit or
its criminal division.
The attorney general’s office said it inadvertently disclosed the
eight cases in response to a public records request by The Maine Monitor
earlier this summer.
The unexplained deaths are the latest findings of an ongoing investigation into Maine’s part-time probate courts by the Monitor.
In June, the news outlet reported that the probate courts had no
uniform way to keep track of vulnerable adults under public
guardianship, and probate judges relied on once-a-year reports by
guardians to oversee their care. The probate courts employ no
independent investigators to verify the reports, the Monitor reported.
State medical examiners identified the eight cases while stepping up
their review of deaths of adults with public guardians between 2018 and
2023. The Department of Health and Human Services, which employs the
guardians, was reporting an increasing number of deaths at that time.
Medical examiners deemed most of the more than 200 deaths in that period
to be natural or accidental.
Public guardianship is the last resort for adults who can no longer
safely make their own decisions. Probate judges appoint public guardians
to make medical, housing and social decisions for incapacitated adults
when no relatives are willing or able to help.
The Monitor reviewed 300 pages of reports submitted to the probate
courts by public guardians, doctors, family members and court-appointed
independent observers known as “visitors” that justified the state’s
position that the Department of Health and Human Services needed to take
over management of the eight adults’ lives.
Some lived a few months after being appointed a public guardian; others had their care managed by the department for decades.
The eight deaths, all in the past three years, include:
• Janice Sirois, 61, died in Fort Kent on
Aug. 8, 2022, in what medical examiners say was a homicide. The
attorney general’s office decided not to prosecute the case.
• Laurie Wall, 51, was in state care
since she was 2½ years old and was diagnosed with cerebral palsy. She
died of “acute intoxication” of multiple prescription medications at a
foster home in Cornville on April 27, 2021, medical examiner records
show.
• Donald Burpee, an 85-year-old from
Durham who had a mental disability, died of “acute oxycodone
over-medication for (the) treatment of pain,” on Sept. 20, 2021, medical
examiner records show. He had prostate cancer that had attached to
multiple organs.
• Dorothy Littlefield, 72, died in
Portland from heart disease “in context of excessive medication for the
treatment of Alzheimer’s disease.” Shortly before she died on May 23,
2022, Littlefield was receiving hospice care and declining both mentally
and physically, her public guardian reported to the probate court.
• Eugene Strout, 77, died of “septic
complications of prolonged immobilization” at a residential care
facility in Hancock on July 28, 2020. Strout had Parkinson’s disease — a
brain disease that causes uncontrollable movements, and trouble with
balance and coordination — and “severe cognitive impairment” from Lewy
Body Dementia.
• Jonas Miller, 80, died in a residential
care facility in Canton of heart disease in October 2022. A medical
examiner noted there was also “over-administration of morphine for pain
control,” as well as a serious complication of diabetes, end-stage
kidney disease and end-stage liver disease.
• Koren Velez, 68, died of a bleed around
her brain and “blunt force trauma” on July 15, 2020, at the Maine
Veterans’ Home in Scarborough. She was a Navy veteran and a victim of
domestic violence, court records show.
• Richard Spencer, 87, was given
“excessive medications for the treatment of multiple comorbidities,”
according to a medical examiner. The cause of his death in Bangor on
Jan. 14, 2023, was heart disease. The manner of Spencer’s death was
“undetermined.”
U.S. medical examiners describe how deaths occur by using five broad
categories: natural, accident, homicide, suicide and undetermined.
Maine’s Office of Chief Medical Examiner conducts physical
examinations of bodies, toxicology or other tests to determine the cause
and way a person died, office administrator Lindsey Chasteen wrote in
response to questions from The Maine Monitor. The office also reviews information from law enforcement and health care facilities.
“When ‘undetermined’ is used, it means that all of the testing or
results are completed and there still is not enough information for us
to make a determination,” Chasteen wrote.
The
Office of Chief Medical Examiner determines the ways and causes of
individuals’ deaths. State medical examiners identified seven
“undetermined” cases and one “homicide” while stepping up their review
of deaths of adults with public guardians between 2018 and 2023. Photo
by Samantha Hogan.
The National Association of Medical Examiners, a professional organization in which Maine participates, recommends that a death be labeled “undetermined” when there is “less than 50% certainty” about how the individual died.
Only Maine’s chief and deputy chief medical examiners can classify a
death as “undetermined,” and it’s rarely done. Between 1% and 2% of all
deaths investigated in recent years were found to be undetermined, reports by the office show.
Usually, there is enough information about the circumstances of a
death to make a determination other than “undetermined,” Chasteen wrote.
An “undetermined” death is not automatically suspicious, she said.
The Department of Health and Human Services is supposed
to tell lawmakers on the Health and Human Services Committee each time
it reports a death to the medical examiner’s office, but that is not
happening, said Baldacci, the committee chairman. He has instructed the
department to review its procedures.
“The thing that needs to happen is we really need to have more
oversight; we need to have better training of people that engage in this
work for the state, and we need to have better reporting,” Baldacci
said. “These are vulnerable people and the families are in difficult
situations, often. And they need to have the state, at a minimum, be a
competent advocate for them.”
Homicide in Aroostook County
Sirois’ death in 2022 was designated as a “homicide” by medical examiners. No one has been charged with killing her.
“The Sirois matter has been closed without prosecution due to
insufficient evidence that a crime has occurred,” the attorney general’s
spokeswoman Hayes wrote in response to questions from the Monitor.
According to her obituary, Sirois died at a Fort Kent health care facility. She was under public guardianship for 12 years.
Medical examiners have a different definition of “homicide” from
prosecutors. “Homicide is a death that occurs at the hands of another
person or as a result of an illegal act,” according to the Maine medical examiner’s office. The label does not mean there was criminal intent to kill the person.
The Healthcare Crimes Unit in the attorney general’s office is a
federally funded team that investigates Medicaid fraud as well as abuse
and neglect in MaineCare facilities.
Assistant Attorney General Bill Savage, who leads the Healthcare
Crimes Unit, said prosecutors need to prove beyond a reasonable doubt
that someone intentionally committed murder or manslaughter.
“Not every homicide is a manslaughter or a murder,” Savage said.
Savage and Hayes would not answer the Monitor’s questions specific to
Sirois’ death or the investigation, because they said her name and the
details of her death should not have been made public.
Sirois died of the “combined toxic effects of ethanol, hydromorphone
and paroxetine,” medical examiner records show. In layman’s terms:
alcohol, an opioid and an oral medication that can be used to treat
Post-Traumatic Stress Disorder, or PTSD.
Sirois struggled to manage her PTSD and several chronic conditions
later in life, her doctor reported to the probate court in June 2010
while the state was petitioning to be made her public guardian.
In Madawaska, a small community near the northern U.S.-Canadian
border, Sirois lived close to a sister who helped Sirois manage her
medications. More than once, Sirois did not take her medicine and ended
up in the emergency room, probate records show.
“Because of Ms. Sirois’s fragile hold on her mental and physical
health, general guardianship powers will be required in order to better
meet Ms. Sirois’ immediate and ongoing needs,” the state wrote at the
time.
The plan was to keep Sirois in an apartment and have a case manager
periodically visit to monitor her care, probate records show. Within a
year, Sirois moved to an assisted living facility in Presque Isle,
according to her public guardian’s report to the Aroostook County
Probate Court in 2011. Sirois threatened to move out against her
guardian’s advice.
Sirois moved between multiple facilities, and her public guardian
told the court through reports and updates that Sirois didn’t have the
skills to live on her own.
The details about the end of Sirois’ life are hidden from public
view. Darleen Guy, register of the Aroostook County Probate Court, said
the Monitor would need to petition to join the case to view reports from
Sirois’ public guardian that describe her whereabouts and care.
However, the records should be public because state lawmakers passed
an emergency law this year to keep adult guardianship records public
until at least April 2025.
The medical examiner’s office also denied the Monitor’s request for
records detailing its findings in Sirois’ and the seven other deaths.
Chasteen denied access, arguing that the details should not be public
because the eight deaths “are still under investigation.”
The Monitor made multiple attempts by mail and social media to contact Sirois’ friends and family but did not receive responses.
State examines more deaths than before
The Office of Chief Medical Examiner rarely reviewed public guardianship deaths prior to 2021.
The office reviewed the deaths of four people who died while under
public guardianship in 2018 and six deaths in 2019, according to data
provided to the Monitor by the office. In 2020, the office examined 15
public guardianship deaths.
The medical examiner’s examinations of public guardianship deaths
jumped to 66 death reviews in 2021 and 75 deaths reviews in 2022, after
the office changed its policy in 2021. The change called for an external
exam of anyone who dies while the state is their guardian or
conservator, and resulted in a five-fold increase in reviews compared to
prior years.
“The number of deaths reported by the Department of Health and Human
Services increased, and the (Office of Chief Medical Examiner)
determined that examinations or autopsies of public wards might
determine if there is a need to protect any other persons within this
vulnerable population,” Chasteen wrote in response to questions from the
Monitor.
When a death is labeled undetermined, it is “not necessarily” suspicious, Chasteen wrote.
“It simply means that (the Office of Chief Medical Examiner) could
not determine the manner of death based on the information available
about the circumstances of that death,” Chasteen wrote.
Police are looking deeper into one of the “undetermined” deaths flagged by the medical examiner’s office.
The death of Laurie Wall, the woman with cerebral palsy and a mental
disability who died from “acute intoxication” of the combined effects of
three medications, has been an open case for more than two years.
The Major Crimes Unit of the State Police investigated her death, said spokeswoman Shannon Moss.
The
state police’s Major Crimes Unit is investigating the death of Laurie
Wall, 51, a woman diagnosed with cerebral palsy and a mental disability
who had been under public guardianship for 34 years. She died of “acute
intoxication” of multiple prescription medications at a foster home in
Cornville on April 27, 2021, medical examiner records show. Photo by
Samantha Hogan.
Wall had been under public guardianship for 34 years when she died in 2021.
Wall had a “profound” mental disability and required hands-on care
for dressing, bathing, toileting, eating and drinking. She was described
around age 18 as being “non-verbal and has tremendous difficulty making
even the simplest needs known.” Her condition did not improve.
Wall was born in Rockland and was placed in state care by her parents
around age 2. Her needs were too extensive for the family to
financially or mentally handle, said her sister, Stormie Hendrickson.
Hendrickson was born a year before her younger sister. The state
periodically brought Wall to visit her family until about age 13, and
then several decades passed before the sisters saw each other again,
said Hendrickson, who now lives in Waldoboro.
Out of the blue, around 2009, a case worker and a foster parent contacted Hendrickson to ask if she wanted to see Wall.
Wall lived in three adult foster homes — in Pittsfield, Skowhegan and
finally, Cornville. Despite the high level of care Wall required, she
went on camping trips, shopping and to football games with her foster
families, her guardians reported to the Somerset County Probate Court.
Her last foster parents appeared to love and take good care of Wall, Hendrickson said.
“Her complexion looked great, she was always clean and well dressed,
they were very attentive to her, and they acted like … she knew
everything that was going on,” Hendrickson said. “They treated her like
she understood everything you said, and maybe she did. They would know
her more than I did.”
The foster parents declined to speak with a Monitor reporter.
Wall died “unexpectedly but peacefully at home,” according to her
obituary. The state medical examiners later determined that “the
combined effects of levetiracetam, fluoxetine and lacosamide” — three
prescription medications — had caused her death.
Hendrickson said she was not contacted by state police about her
sister’s death. She was unaware that an investigation had been ongoing
in the more than two years since Wall died.
“I was just told she passed away in her sleep,” Hendrickson said.
Laurie
Wall, 51, had cerebral palsy. She died of “acute intoxication” of
multiple prescription medications at a foster home in Cornville on April
27, 2021, medical examiner records show. Wall is buried at East Ridge
Cemetery in Cornville. A bouquet of purple fabric flowers is placed by
her grave. Photo by Samantha Hogan.
Public guardians notify the medical examiner’s office when an adult
under public guardianship dies. If abuse, neglect or exploitation is
suspected, Adult Protective Services is contacted, said Jackie Farwell, a
Department of Health and Human Services spokeswoman.
“The department is committed to the well-being of individuals subject
to public guardianship and takes appropriate action to ensure
caretakers are held to legal and regulatory standards,” Farwell wrote.
The department declined to answer questions about Wall or the seven
other individuals. The department would not say if it had substantiated
reports of abuse, neglect or exploitation of any person connected to the
seven undetermined deaths or the homicide because it said that
information is confidential.
The attorney general’s office also declined to say how many of the
seven “undetermined” public guardianship deaths were referred to and
investigated by the Healthcare Crimes Unit or criminal division.
Savage, the director of the unit, said it gets many referrals but
that not every tip, allegation or death is a crime. And even when a
crime is clear, prosecutors may lack evidence that proves who did the
crime or the person’s state of mind when the crime was committed.
There are few in society more vulnerable than a non-verbal person, said Richard Estabrook.
Estabrook is Maine’s former Chief Advocate. His job included death
investigations, and investigations of possible abuse, neglect and
exploitation of adults with developmental disabilities living in the
community or at the state’s institution for the disabled, Pineland,
before it closed in 1996. His position and the entire Office of Advocacy
was eliminated by then-Gov. Paul LePage in 2012.
“You want the public to be able to trust that your system of care is
reasonably assessing risks, and reasonably taking care of people and not
neglecting them,” Estabrook said.
How the state will put the eight deaths to rest is unclear. State law
requires the Department of Health and Human Services to share
information about deaths that are reported to the medical examiner’s
office with elected representatives. State lawmakers recently found out
the law is not being followed.
Baldacci, the state senator, said he understands state prosecutors
want to keep information in ongoing investigations confidential until
the cases are resolved or go to court. But there’s a limit.
The probate courts need a more comprehensive system of oversight for
public guardianships to prevent these kinds of deaths from happening,
Baldacci said.
“The current system is not adequate in terms of oversight,” Baldacci said.
State regulators may need to assist with oversight because 16
independent probate courts cannot be expected to have a uniform system
when each of the courts “have completely different budgets,” Baldacci
said. He hoped the probate judges would be willing to engage with
lawmakers about doing training and setting procedures that could be
implemented statewide.
“In the next legislative session, we may need to consider additional
legislation starting in January about addressing these issues and
improving the system of oversight,” said Baldacci.
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