A second lawsuit was filed Thursday against a Lower Burrell nursing
home over the death of a resident injected with a lethal dose of
insulin, one of numerous victims whom authorities said were targeted by a
rogue nurse during a yearslong killing spree.
The 15-count lawsuit against Belair Healthcare and Rehabilitation
Center was filed in Allegheny County Common Pleas Court by Russell
Colwell III of West View.
Colwell was 92 when she died Dec. 28, 2021. For two years, her family thought she died from natural causes.
But, this fall, investigators with the state Attorney General’s
Office informed the family they were looking into her death as being the
result of a criminal act by Pressdee, who was arrested in May.
That news stunned Colwell’s survivors — her five grandchildren — who
believe her death could have been prevented had Belair followed more
stringent hiring practices and better monitored patients’ blood sugar
levels.
“All of that has really weighed on the family and is something
they’re still processing,” Brandon Keller, one of their attorneys, said
Thursday. “These were the people ultimately responsible for her care and
failed miserably.”
Julie Beckert, a spokeswoman for Belair, said the nursing home’s
parent company, Guardian, could not comment because it had not yet seen
the lawsuit.
Pressdee’s criminal defense lawyers said Thursday they had no comment
on a civil matter. They are busy trying to hammer out a plea deal with
prosecutors while Pressdee awaits trial.
Investigators said Pressdee was fired or forced to resign from a
dozen nursing homes and rehabilitation centers because of abusive
conduct toward residents or staff, including a half-dozen facilities
where she worked before Belair.
She is accused of killing or trying to kill at least 22 residents at
multiple facilities by injecting them with insulin, though in many cases
the alleged victims were not diabetic. The insulin caused severely low
blood sugar levels and death, authorities said.
Pressdee confessed to administering the insulin, according to investigators.
Colwell, one of eight children, lived in New Kensington, loved the beach and taught swimming at a YMCA. She was a congregant at The River Community Church in New Kensington. Her three children and husband died before her.
She had dementia when she was admitted to Belair in November 2021
after a fall. Pressdee had been hired earlier that year as an assistant
director of nursing despite what Colwell’s attorneys called an “alarming
history of resident abuse at prior facilities.”
Colwell’s lawyers pointed to that history as evidence of flawed hiring practices at Belair.
They also mentioned allegations of troubling behavior by Pressdee at
Belair and suspicions by co-workers that she was harming residents, all
previously documented by investigators. Guardian administrators were
aware of the rumors about Pressdee, but did nothing, the lawsuit claims.
Around that time, the state Department of Health inspected Belair and
found problems with the facility failing to notify doctors about
problems with residents’ high blood-sugar levels, leading to the death
of one person.
Inspectors found that Belair residents were in “immediate jeopardy.”
They even interviewed Pressdee, who admitted to not following protocols.
Despite that, the lawsuit claims, Belair “failed to further
investigate Pressdee after she admitted to the Health Department that
she did not comply with the resident’s care plan and facility policy.”
Two nights before Colwell’s death, medical records showed that she
was in a “pleasant” mood, the lawsuit said. The next day, Pressdee took
over Colwell’s care and spent “excessive amounts of time with her,”
according to the lawsuit.
On the day she died, Colwell took a rapid turn for the worse.
Pressdee took her vital signs — but did not measure her blood sugar, the
lawsuit said. At 11 a.m. on Dec. 28, 2021, an occupational therapist
tried to go into Colwell’s room, but the lawsuit claims that Pressdee
asked her to leave and later insisted that Colwell not be touched. She
died about two hours later.
Investigators said Pressdee admitted to giving insulin to a resident
identified only as M.C. All her alleged victims are listed only by
initials in the criminal complaints, but all other details about M.C.
match Mary Colwell.
Pressdee left Belair in February 2022. Colwell’s lawyers wrote that
she was terminated for abusive behavior toward residents and staff.
The lawsuit alleging wrongful death and corporate negligence was
filed just under the two-year statute of limitations. It was filed in
Allegheny County, where Guardian does business, lawyers said. Colwell is
seeking damages and a jury trial.
In October, attorney Robert Peirce sued Belair
in connection with the Sept. 28, 2021, death of Marianne Bower, a
68-year-old grandmother of seven, allegedly at Pressdee’s hands.
Investigators said Pressdee was responsible for at least five deaths at the facility.
In the Bower case, Pressdee sent a sympathy card and gift to the family after Bower’s death, according to the lawsuit.
Both complaints name as defendants Belair, its parent company Guardian, and numerous interrelated legal entities.
People with 'severe mental illness' and substitute decision makers
experience loss of autonomy and personal identity, leading to feelings
of powerlessness about regaining self-determinati
Individuals with psychosocial disabilities have been advocating for
their right to self-determination worldwide. In an effort to comprehend
and highlight their experiences, Samuel Law and colleagues from the
University of Toronto conducted a study on the lived experiences of
adults with serious mental illness (SMI) who have substitute decision
makers (SDM). The findings of the study were published in the Psychiatric Rehabilitation Journal.
According to the researchers:
“While the use of SDM is established on the ethical
principle of beneficence, the attendant loss of autonomy is often
underlined. In the context of the United Nations Convention on the
Rights of Persons with Disability, which highlights dignity, human
rights, and a loss of self-determination as chief reasons that many
common practices such as civil commitment, outpatient treatment orders,
and substitute decision making, among others, need to be abolished, and
the SDM system should be replaced by a more person-centered approach
using supported decision making – the practice of SDM is under
scrutiny.”
“While the general principles and ideals of the Convention
have been ratified by most countries globally, many United States (which
has not ratified the CRPD to date) have voiced concerns and allowed the
continued use of substitute decision making, particularly in the
context of people with SMI.”
As the disability rights movement has increased awareness about coercive psychiatric power, the United Nations
has made policy changes to eliminate coercion in mental health
settings. Various nations have also attempted these changes in policy,
including Canada, Peru, and the European Union.
These modifications aim to safeguard the human rights of individuals
with disabilities by preserving their ability to make decisions and act
on their own behalf. While there has been progress in public discussions
on this topic, policy changes and legal rights have yet to catch up.
To better understand the lives of people who are diagnosed with SMI
and who have an SDM, limiting their agency and human rights, the
researchers sought to study their lived experiences.
Eleven participants who were over 18 years old, diagnosed with
schizophrenia or bipolar disorder, spoke adequate English and could
provide consent were interviewed. They all currently had SDMs, and their
SDMs were mothers, fathers, husbands, brothers, uncles, or public
guardians and trustees. The participants comprised seven males and four
females; seven identified as white, three as black, and one as mixed
race. Most of them were between the ages of 35-50. During the
interviews, the researchers asked open-ended questions and elicited
examples regarding their experiences as people diagnosed with SMI
(Serious Mental Illness) and having an SDM. The interviews lasted
between 30-90 minutes and were transcribed. The researchers then
analyzed the transcriptions through thematic analysis, which involved
writing analytic memos iteratively to capture the significant issues.
As a result of their thematic analysis, the researchers developed five (5) themes:
Strong dissatisfaction with and rejection of the SDM’s role and purpose:
Most participants talked about their discontent with having an SDM
make treatment-related decisions for them, which at times involved being
hospitalized involuntarily, opposing their treatments, rejecting their
mental diagnoses and labels, and concerns about being perceived as
abnormal. Through this theme, the researchers also highlighted how
participants often felt normal and disagreed with the need for an SDM
during those times.
A pervasive sense of stigma associated with having SDM:
Some participants also talked about how they experienced stigma due
to their diagnosis and having an SDM, which led to a sense of shame and
incapacity.
Ongoing struggles to gain autonomy:
Most participants also talked about how they grieved their agency,
autonomy, and personal identity, feeling powerless and hopeless about
changing their circumstances and finding scarce resources. They also
mentioned understanding they might have needed their SDM at a particular
time; it is not a recurring need, and thus, their agency should not be
consistently limited.
Mixed changes in relationship with and views about SDM:
Participants talked about feeling as though their “SDM was not on
their side,” which created stress and changed their relationship with
the SDM, as many felt as though they could no longer trust their SDM.
Although most participants mentioned negative changes in their
relationship with their SDM, others said their relationship improved.
Views on how to improve SDM processes:
Participants provided various suggestions about how to change the SDM
process, including having the SDM see them as a full person, improved
transparency and communication, enhanced trust between them and the SDM,
having a chance to regain control of their autonomy, having the
capacity to choose their SDM, and having the capacity remove the SDM “as
the middle person.”
The results of this study add to the growing literature on the
experiences of people who experience SMIs, have SDMs, and have lived
through involuntary treatment or hospitalization. Moreover, the
participants’ suggestions on how to change the SDM process support the
United Nations Convention on the Rights of Persons with Disabilities
suggested policy changes, in which substitute decision-makers are
replaced with supported decision-making, which secures the ongoing
agency and human rights of people with disabilities.
The victim, 89-year-old Lina Gomez, suffers from advanced Alzheimer's and Dementia.
By NBC6
Miami-Dade State Attorney Katherine Fernandez Rundle announced the arrest of the caretaker of an impaired elderly victim.
The investigation by the Elder and Vulnerable Adult Exploitation Task Force involves the alleged looting of the victim's funds.
The victim, 89-year-old Lina Gomez, suffers from advanced Alzheimer's
and Dementia, Fernandez Rundle told reporters at a press conference
Thursday afternoon.
Gomez had become non-verbal and did not have any family that could take care of her.
The 78-year-old defendant, Zoraida Denis Mollinea, had befriended Gomez in 2016, according to Fernandez Rundle.
Zoraida Denis Mollinea, 78
Mollinea reportedly obtained a power of attorney, gained access to bank accounts, and eventually even sold the victim’s home.
Vanessa
Roberts Avery, United States Attorney for the District of Connecticut,
and Robert Fuller, Special Agent in Charge of the New Haven Division of
the Federal Bureau of Investigation, announced that CURTIS SOLSVIG, 69,
of Stamford, waived his right to be indicted and pleaded guilty today
before U.S. District Judge Sarala V. Nagala in Hartford to a fraud
offense involving his misappropriation of funds from a trust.
According to court documents and statements made in court, a married
couple (the “victims”) created a trust for the primary benefit of their
two children. In 1996, Solsvig, a relative of the victims, began
serving as trustee of the trust. Beginning in 2011 and continuing for
approximately eight years, Solsvig stole more than $800,000 from the
trust and used the funds for a variety of personal expenses. By the
time his scheme concluded, less than $20 remained in the trust account.
Solsvig pleaded guilty to one count of wire fraud, an offense that
carries a maximum term of imprisonment of 20 years. Judge Nagala
scheduled sentencing for March 5, 2024.
Solsvig is released on a $250,000 bond pending sentencing.
This matter is being investigated by the Federal Bureau of
Investigation and prosecuted by Assistant U.S. Attorney Conor M.
Reardon.
Under Mayor Breed’s Executive Directive issued in October, City
Departments are prepared to begin implementing SB 43 law changes at the
beginning of January 2024; SB 43 expands the definition of “grave
disability” to include those who live with severe substance use disorder
and those who are unable to provide for their own personal safety or
necessary medical care
December 07, 2023
San Francisco, CA -Mayor London N. Breed
today announced that San Francisco will be ready at the beginning of
January to operationalize Senate Bill 43, a change in State mental
health conservatorship laws that expands the eligibility requirements to
compel people struggling with severe substance use disorder to get the
care and support they need.
Signed
by Governor Newsom last October, SB 43 goes into effect on January 1,
2024. Immediately after the bill was signed into law, Mayor Breed issued an Executive Directive to City Departments to ensure that San Francisco was ready to implement this new policy at the beginning of January.
Senate
Bill 43 expands California’s Lanterman–Petris–Short (LPS)
conservatorship law by updating the criteria for determining if a person
is “gravely disabled,” the standard for LPS conservatorship
eligibility.
SB43 expands the definition of Grave Disability in two important ways:
The
law provides a legal basis for conserving individuals who are Gravely
Disabled due to the impacts of a severe substance use disorder alone.
This adds to the current definition that only allows for
conservatorships based on serious mental illness or chronic alcoholism.
The
expanded definition adds inability to provide for necessary medical
care, and/or personal safety to the current definition of food,
clothing, and shelter that is related to their mental illness or
substance use disorder.
This
will address a situation where psychiatric emergencies involve the use
of multiple substances (e.g. methamphetamines and opioids including
fentanyl).
Mayor Breed's
Executive Directive coordinates and gives direction to departments,
including the Department of Disability and Aging Services (DAS), the
City Attorney’s Office, and the San Francisco Department of Public
Health (SFDPH) to implement SB 43. The Executive Order provides
oversight and coordination, sets implementation timelines, and requires
departments to train staff on the expanded definition of grave
disability with an improved collaborative workflow.
The
Departments are prepared for the law to go into effect on January 1,
2024. At that time, the Public Conservator will begin to receive
referrals under the newly established criteria set forth by SB 43. If
deemed eligible after an assessment, the Public Conservator will file
petitions with the court to conserve those individuals. For additional
information on SB 43 and its implementation in San Francisco, visit this link.
“People
are struggling with severe substance use and mental health challenges
in our City to the point where they cannot help themselves. When we have
an opportunity to put a new solution into place, we must work quickly
to do everything we can to implement it,” said Mayor Breed.
“Conservatorship is a complex and long legal process, which is why
moving quickly to put the pieces into place is imperative. I want to
thank the staff at the various City agencies who have been working hard
to ensure that, come January, we are ready to start helping people and
changing lives.”
As
part of the conservatorship process, the Superior Court appoints a
public conservator to authorize psychiatric treatment of a person who
meets the legal definition of grave disability. If the Court determines a
person meets the criteria, they can be placed under conservatorship for
up to one year, and the conservatorship can be renewed annually if the
individual continues to meet the criteria. Only psychiatrists and
clinical psychologists may make referrals for conservatorship and only
the Public Conservator may file petitions. After appointment, the
Conservator works with other City departments to ensure conservatees are
receiving proper treatment.
“Conservatorship
is the intervention of last resort. We hope that by working in close
collaboration with our City partners to implement the expansion of SB
43, it will help people who need it most,” said Kelly Dearman, Executive Director of the Department of Disability and Aging Services.
“Although SB 43 does not change the procedures of existing
conservatorships, it will allow us to help people who are not able to
provide for their basic needs for food, clothing, shelter, personal
safety or necessary medical care due to a severe substance use disorder
and/or mental health disorder.”
“The
Department of Public Health continues to expand our portfolio of
treatment options for those in need while offering a range of services
including early intervention, crisis response, as well as inpatient and
outpatient care,” said Director of Health, Dr. Grant Colfax.
“SB 43 provides us another opportunity in our larger system of care and
support to help those with the most acute behavioral health needs.”
“The
previous definition of grave disability was written in the 1970s.
Today’s societal challenges are different than they were 50 years ago,” said City Attorney David Chiu.
“I am proud of the work our attorneys did to shape and advocate for
this expansion of state law. We are ready to assist our clients in
ensuring SB 43 is implemented effectively in San Francisco.”
Over the last several years, Mayor Breed
has advocated for a broad range of statewide conservatorship reform,
working closely with State Senator Scott Wiener and other State and City
leaders, including State Senator Susan Talamantes Eggman, to
successfully pass and implement mental health conservatorship process
improvements.
Initial findings of Alzheimer’s have led to a discovery
that it only affects the brain cells. The disease results from a plaque
formed by an Amyloid-beta protein, which damages brain cells. However,
recent studies have shown that blood vessels are also affected, but
reasons are yet to be discovered. It was revealed that blood vessels in
the brain undergo changes that may be utilized as a path for new drugs
to treat the disease.
The study is led by a team of researchers from the University of Manchester. Their findings are published in an online journal, Proceedings of the National Academy of Sciences.
According to the team’s investigation, a smaller version of the protein
called Amyloid-β 1-40 clogs the small arteries, which causes irregular
blood flow. Due to plaque formation, the brain cannot receive sufficient
nutrients to function well. The small arteries that allow blood flow
are called pial arteries. These arteries are found on the brain’s
surface, which controls blood and oxygen supply. Insufficient blood and
oxygen in the brain lead to memory loss.
“To date,
over 500 drugs have been trialed as a cure for Alzheimer’s disease. All
of them have targeted the nerves in the brain, and none of them have
been successful. By showing exactly how Alzheimer’s disease affects the
small blood vessels, we have opened the door to new avenues of research
to find an effective treatment,” Dr. Adam Greenstein
shared. He is the study’s lead researcher and a Clinical Senior
Lecturer in Cardiovascular Sciences at the University of Manchester.
Older
mice were the subject of their study. After conducting observations, the
team found out that mice with Alzheimer’s with too much Aβ1-40 have
narrower pial arteries than healthy mice. The narrowing of arteries is
caused by Aβ 1-40 switching off a protein called BK in cells lining
blood vessels. A BK normally functions when it signals the arteries to
widen. The data was gathered by an experiment including BK and Aβ 1-40.
Researchers exposed healthy pial arteries for one hour in Aβ 1-40 and
then measured signals brought by BK protein. Afterward, it was confirmed
that Aβ 1-40 weakened the signals that led to narrowed blood vessels.
“This research is an important
step forward in our understanding of Alzheimer’s disease. More than half
a million people in the UK are living with the condition, and that
number is set to rise as our population gets older. These findings could
lead to a desperately needed treatment for this devastating condition,”
says Professor Metin Avkiran, Associate Medical Director at the British Heart Foundation.
The team is now finding out which part of Aβ 1-40 damages BK protein.
These discoveries will be the foundation of newly developed drugs that
could help prevent people from acquiring Alzheimer’s.
DIEGO COUNTY, Calif. — The county Board of Supervisors Tuesday
voted 3-2 to delay for one-year enactment of a state law that expands
mental health holds, based in part on concerns over training and the
additional strain on hospital emergency departments.
In October, Gov. Gavin Newsom signed Senate Bill 43, which expands
the definition of "gravely disabled" in terms of who can be
involuntarily held in facilities and receive treatment.
Under the previous law, mental health conservatorships can be used
only when a person is a danger to themselves or others, or cannot
provide for their food, shelter or clothing.
SB 43, which goes into effect Jan. 1, 2024, expands eligibility for
conservatorship to situations where people cannot manage their medical
care or personal safety. It also adds substance-use disorders in
addition to mental illness as an applicable condition, according to San
Diego Mayor Todd Gloria's office.
Under the new law, a county government can delay implementation for
up to two years. Supervisors on Tuesday passed a resolution that calls
for implementing SB 43 by January 2025. A report on the county's efforts
to enact the state law will be presented to supervisors sometime in
March. Board Chairwoman Nora Vargas, who proposed the delay, voted yes
along with Supervisors Jim Desmond and Monica Montgomery Steppe, who
took her seat after being sworn in earlier.
Supervisors Joel Anderson and Terra Lawson-Remer voted no. Vargas
said while the county has been a leader behavior health treatment and
unafraid to carry out smart policies, it was also important to be
careful about the new law and how it could impact residents.
"We're talking about real families," she said, adding the county
needs to ensure that it has enough beds to accommodate patients, the
correct type of treatment, and properly trained medical health
professionals and first responders. "Involuntary treatment is a
significant action," Vargas said.
Supervisor Monica Montgomery Steppe said before SB 43 is implemented,
there needs to be a hiring plan, feedback from hospitals and the new
law's connection with CARE Court, a state-approved program that allows
individuals to petition a court to order treatment and housing for
people suffering from severe mental illness.
Montgomery Steppe also said she was concerned about the county
enacting SB 43 requirements if law enforcement officers hadn't received
proper training.
"We have to ensure we're doing the absolute most that we can to meet
this mandate," she added. "This is on us now. We cannot pass the buck."
Vice Chair Lawson-Remer said she couldn't support the delay, given
the county didn't prepare for SB 43 even though it was unveiled earlier
this year.
In a statement, Lawson-Remer said that "significant time and energy
were spent finding the best ways to delay implementing Senate Bill 43
... but our region and most importantly the people in dire need of
treatment, would have been better served if all those same people worked
on an implementation strategy. "Many people tried all types of excuses
to make me feel better about going along with the delay," Lawson-Remer
added. "I don't care if other counties delayed their implementation for
two years. I represent the people of San Diego County, and we should be
striving to be better than the rest."
Lawson-Remer said she would be open to supporting Vargas' proposal
after the 90-day review, with hopes the county "pedals to the metal" on
accommodating SB 43.
Anderson in a statement said he voted no on delaying the new law because "the status quo is not working."
"Every delay hurts my constituents and the communities I represent,
and they cannot afford to wait any longer," Anderson said. "I put `fix
homelessness' on my campaign signs, and I meant it."
Desmond said he was "really encouraged that the state has finally
given us the kick in the rear to get the help we need," in terms of
expanded treatment options, but agreed with Vargas about a lack of
resources.
"We gotta do this the right way," he said. "We can't overrun over
emergency rooms," Desmond added that he won't support any future delays
of the state law.
During public comment, supervisors heard from hospital and mental health professionals who urged a delay.
Cathryn Nacario, CEO of National Alliance on Mental Illness of San
Diego, said the "intentional and purposeful planning process ensures
successful programs in our county," such as mobile crisis response teams
and crisis stabilization units.
With hospital emergency departments already impacted by flu, COVID-19
and RSV cases, a delay in SB 43 will "allow time to address the gaps
that we already know," she added.
A representative with Cal Fire Local 2881 said a one-year delay would
allow all stakeholders to develop a plan and ensure that first
responders have needed resources. "We should not overload an already
stressed system until we can fully prepare that system," he added.
Others said there was no reason to hold off on carrying out the new law.
Colin Stowell, chief of the San Diego Fire-Rescue Department, urged
the board not to delay implementation. He noted that last year, SDFD
responded to 53,000 calls on behavioral health-related problems,
equivalent to 38 first responders working 10 hours every day.
One woman who called in said SB 43 will extend life-saving care to
more people. She said her son was diagnosed as a schizophrenic in 2019,
and she has spent years trying to get him proper care.
"The bottom line is this: We're not doing enough for mental health,"
she said. "There are people like my family in this county, like my son,
who need this intervention now. The delay could cost people their
lives."
The Santa Clara County Board of Supervisors on Tuesday unanimously approved establishing a timeline toward implementing changes to Senate Bill 43, a state law that expands the definition of “gravely disabled” under the existing Lanterman Petris Short (LPS) conservatorship. File photo.
Santa Clara County is expediting the implementation of new
conservatorship rules for people suffering from severe mental illness
and substance use disorders—the process will be complicated and costly.
The Board of Supervisors on Tuesday unanimously approved establishing a timeline toward implementing changes to Senate Bill 43,
a state law that expands the definition of “gravely disabled” under the
existing Lanterman Petris Short (LPS) conservatorship. The bill
provides no state funding, which will force Santa Clara County to shift
dollars in its general fund. The county is looking at a potential $158 million deficit for the 2024-25 fiscal year.
“Significant assets will be needed to implement SB 43 and the state
has not yet made additional resources available,” Deputy County
Executive Ky Le said at the meeting.
The law, which Gov. Gavin Newsom signed in October, becomes effective
Jan. 1. It requires counties to establish a timeline to fully implement
the changes by January 2026.
A portion of the law can be enacted at the start of the year under
the new definition of “gravely disabled.” The prior definition of
“gravely disabled” meant having a severe mental illness such as
schizophrenia or other psychotic disorders, where the individual is
unable to provide for their basic personal needs such as food, clothing
or shelter. The amended law adds the inability to manage medical care
and personal safety, and includes individuals with substance use
disorders.
Other requirements going into effect include making sure that CARE Court and Assisted Outpatient Treatment
options are considered before a conservatorship. Public guardians also
have to prove medical records are from a health practitioner and
behavioral health and LPS facilities have increased reporting
requirements.
Those under a conservatorship are involuntarily placed in a locked
facility for treatment. SB 43 requires those with a substance use
disorder to also be in a locked facility for treatment. During the
county behavioral health presentation, Le explained that there are no
locked facilities for individuals with substance use disorders, as this
population seeks help voluntarily.
Le added that new facilities are needed to support the increase in
LPS conservatorships, and funds from the Mental Health Services Act
(MHSA) can’t be applied to toward involuntary commitment programs.
County Executive James Williams said the potential passage of Prop.
1, which would reallocate money in MHSA, might make infrastructure funds
available. But no MHSA funding can be used for services, operations or
administrative costs.
SB 43 comes on the heels of the CARE Act,
which Santa Clara County is required to implement on Dec. 1, 2024.
These combined needs will require a significant increase in the number
of beds; constructing new facilities for involuntary placement for those
with substance use disorders and those with severe mental illnesses;
retraining and implementation of new policies and procedures for
hospital staff, public guardians and law enforcement; and hiring to meet
the expansion demands.
Together these laws will mandate a dramatic reallocation of funds
into the behavioral health department and force cuts to other
departments and programs, Williams said.
“The costs for (SB 43) will likely come out of the general funds to
increase the need for beds at the acute and subacute level,” he said.
“There are limited funding sources to help counties pay for these
enhanced services.”
During public comment, four lawyers from the Silicon Valley Law
Foundation implored supervisors to delay the timeline start date. The
foundation wanted time to hire more people and train staff to help those
who want treatment, but not through involuntary measures.
The majority of speakers favored the board’s position, but asked for transparency and quarterly updates from the county.
Supervisor Susan Ellenberg posted on her blog how this approval is another important step in the long and complicated process of mental health reform.
“The law also includes a sensible provision to provide Counties with
TIME to put in place all the other pieces that will be needed to
implement the remaining portions of the new law. That work is underway,”
she wrote.
A Garland County woman was sentenced Monday, Dec. 4 to 15
years in prison and ordered to pay $125,000 in restitution to her victim
after she pleaded guilty in August for Abuse of Adults Exploitation, a
Class B felony, and Medicaid Fraud, a Class A misdemeanor.
Charlene Root Davila, 56, a caregiver and tax preparer, will serve
five years in prison, with 10 years of the sentence suspended, Arkansas
Attorney General Tim Griffin said in a statement. The attorney general's
office prosecuted the case in Garland County Circuit Court.
Root Davila lived in a trailer park at 5600 Albert Pike Road, and was also a neighbor of the victim.
“Cases like these don’t often result in prison time for the
perpetrators, which underscores just how brazen and cruel this crime
was.
“Davila made a calculated effort to secure access to her victim’s
funds after the victim’s husband passed away. The victim has no local
family and was left with little support network following her husband’s
death.
“Davila, a local tax preparer and neighbor of the victim’s, forged
documents to get power of attorney on the victim’s bank accounts and
took approximately $150,000 within just a few days of gaining access to
the accounts.
“She also attempted to obtain guardianship over the victim so that
the victim’s home could be sold with the proceeds going to Davila. The
court noted in its ruling how ‘disturbing’ this case was and how Davila
took advantage of the victim’s vulnerabilities.
“I am grateful to Senior Assistant Attorney General Sharon Strong,
who prosecuted this case in cooperation with Special Prosecuting
Attorney Emily White. I also appreciate the great work done by Special
Agent Dane Pederson of my office’s Medicaid Fraud Control Unit, who
worked in cooperation with the Hot Springs Police Department to
investigate this case.”
On Tuesday afternoon, Davila was in Garland County jail, awaiting transfer to the state prison system.
A groundbreaking decision marks a significant victory for elder rights, particularly those of U.S. Veterans.
LONG BEACH, Calif., Dec. 4, 2023
/PRNewswire-PRWeb/ -- In a groundbreaking decision that marks a
significant victory for elder rights, particularly those of U.S.
Veterans, the law firm of Lanzone Morgan, LLP has successfully litigated
a case of financial elder abuse against Veterans Care Coordination,
LLC. The trial, which concluded today in Long Beach, California, has resulted in a verdict in favor of the estate of the late Lawrence Eber, a Vietnam War veteran.
Lawrence Eber, who passed away before the conclusion of
case #19LBCP00356, filed a lawsuit against Veterans Care Coordination,
LLC, alleging financial elder abuse. Mr. Eber, during his lifetime, was
wrongfully deprived of a significant portion of his VA Pension with Aid
& Attendance benefit by the defendant, a Missouri-based company.
Over 11 months, Veterans Care Coordination, LLC withdrew 99.8% ($19,838.00) of Mr. Eber's entitled benefit, leaving him with a mere $40.00
of his benefit. According to court documents, this conduct by the
defendant involved concealing from Mr. Eber and his brother the fact
that Mr. Eber was entitled to keep the pension portion of his benefit
and did not have to use his entire VA benefit for home care services,
from which the company profited through commissions.
After a rigorous trial before a jury of 12 in Long Beach, the jury found Veterans Care Coordination, LLC liable for financial elder abuse. The jury awarded $19,817.00 in economic damages, $50,000.00 in noneconomic damages, and $375,000.00 in punitive damages. According to Richard Eber, the brother of Lawrence Eber,
"We need to stop this cottage industry that is taking pension benefits
from vulnerable Veterans. I hope this verdict will be noticed by the VA
and will draw attention to those businesses that profit by manipulating
U.S. Veterans out of their pensions."
James Morgan of Lanzone Morgan, LLP,
representing the plaintiff's estate, stated, "After four years of
litigation, it is gratifying to see a jury agree that Veterans Care
Coordination, LLC's conduct amounted to financial elder abuse and should
be punishable with a punitive damage verdict. This is a victory not
only for Lawrence Eber but for all
Veterans who may have been victimized by Veterans Care Coordination,
LLC. No one should profit by wrongfully taking the pensions of U.S.
Veterans."
The verdict sends a strong message against the
exploitation of elderly veterans and underscores the importance of
protecting this vulnerable segment of our community. Lanzone Morgan, LLP
remains committed to fighting against elder abuse and upholding the
rights of seniors, especially those who have served our country.
Q: Can a guardian block a ward from leaving a nursing home to go to church?
A: Yes and no. A guardian can make this type of decision on behalf of
the ward. However, they must always act in the ward’s best interest and
help them achieve their goals. It seems on the surface that it would be
more appropriate for the guardian to facilitate going to church rather
than to block such activities.
Harry S. Margolis practices
elder law, estate, and special needs planning in Boston and Wellesley,
Massachusetts. He is the founder of ElderLawAnswers.com
CLARKSBURG, W.Va. (WV News) — A 53-year-old Clarksburg woman on Monday
waived her right to a probable cause hearing on a charge alleging
financial exploitation of an elderly person.
The waiver before Harrison Magistrate Kim Wygal sends the case against Patricia Ann Mitchell to Harrison County Circuit Court.
While serving as
conservator or guardian of an individual older than 65, Mitchell had
nearly $19,500 in “questionable disbursements,” Harrison Deputy
Detective J.L. Cumberledge has alleged.
Mitchell reported she paid her rent, car insurance, credit cards and retail accounts with the money, Cumberledge alleged.
I agree with letter writer Jay Gruber (“Failure of ballot Question 8 shames Maine,”
Nov. 19) that Question 8, which lost by 7%, should have passed. But I
don’t think a majority of Maine voters oppose having people under
guardianship vote.
Question 8 reads: “Do you favor amending the Constitution of Maine to
remove a provision prohibiting a person under guardianship … from
voting for Governor, … which the United States District Court for the
District of Maine found violates the United States Constitution and
federal law?”
This question has three negatives, remove, prohibiting and violates,
which could confuse any voter who did not have the time or inclination
to research the question. Picture a voter, on their way to work, running
a bit late, trying to figure this out. Three negatives, hmm. So if I
want these folks to be able to vote, I should vote “no,” right? Wrong.
Because a “yes” vote will remove the provision. Whew!
For now, the Secretary of State is ignoring the prohibition because
it is unconstitutional. But still, it is unsettling to think our Maine
Constitution has such a provision. It is worse that our ballot measures
can be so confusing.
A simple cure is to follow each referendum question with a brief
sentence explaining the outcome if passed. In this case, the explanation
could have read: a “Yes” vote will allow people under guardianship to
vote, in accordance with the U.S. Constitution.
To our Legislature: Require brief explanations after referenda!
Staff at Iceni Care Home say vulnerable residents were treated as if they were ‘on a farm’ to reduce workload
Thomas Ryan and Clare Miller said said the alleged mistreatment of residents could have been avoided if the operator had paid for more staff. Photograph: Si Barber/The Guardian
by Robert Booth
Care workers at a private care home forced
dementia sufferers out of bed as early as 5am and woke them by blasting
loud radio music to save money, whistleblowers have alleged.
The management of Iceni Care Home in Swaffham, Norfolk,
received repeated complaints about the practice this summer, as
concerned staff said vulnerable residents were being treated as if they
were “on a farm” in order to reduce the workload on daycare staff.
One
alleged incident was reported in October after it was claimed screaming
was heard before two agency care workers were found forcing a woman
with dementia out of bed before 6am.
Thomas
Ryan, a whistleblower who managed the Norfolk care home at night, said
he ran to the scene to find “the lady was screaming, lashing out”.
He also alleged: day staff would turn up Alexa
speakers in the corridors to play Kiss FM outside residents’ rooms at
6.45am to wake them; prescriptions for medicines such as anti-psychotics
and antibiotics had on occasion not been collected for two weeks; and
incontinence pads were locked in a cupboard at night, leaving residents
unclean.
The care home is one of several owned by Syed Anjum Hussain, a 48-year old businessman based in Hertfordshire. It is one of about 1,500 residential care homes in England rated as “requires improvement” by the Care Quality Commission (CQC) regulator.
It
said it was unable to publicly comment on the allegations but
safeguarding allegations are routinely shared with CQC and the local
authority.
Ryan, who ran night shifts at
Iceni, and his fellow whistleblower Clare Miller, a senior care
assistant, have worked in social care for more than four decades
combined. They said the alleged mistreatment of residents could have
been avoided if the operator had paid for more staff. This would have
allowed staff to get residents up only when residents chose to.
“I
hate the fact that families have to hear this, but they need to because
this is going on behind their backs,” said Miller, who described it as
“organisational abuse”.
More
than 150,000 posts are vacant in social care in England and government
plans that emerged last week to restrict migrant workers risk worsening
the problem, sector leaders fear.
Miller is
the daughter of Ann King, whose abuse in the Reigate Grange care home in
Surrey was exposed by the Guardian last year. She started working at
Iceni in April 2023.
“The attitude regarding
getting people up in the morning is disgusting,” Ryan told the care home
operator by email in August. “It is not a farm. We will not force
people out of bed … It is the residents’ choice not the staff’s. This is
abuse and the home is allowing it to happen, despite me telling you.”
The
care home operator welcomed his feedback as “very useful” and said
people should not be “got up for the convenience of the team”. Ryan and
Miller said problems persisted in the following months and they quit.
They
told the Guardian staff were often not washing people when they changed
their pads, leaving them soiled. Pads had been locked away. The care
home manager told Ryan this was because “the night team had borrowed
excessively”.
“They had the money to fix the
problem,” Ryan said. “It has to change. We are all going to reach an age
when we need help and if there isn’t caring help there, where are you
going to go?”
A spokesperson for Norfolk
county council said it was seeking assurances from the care operator
about care and support. It said the home had been responsive and
referred itself to the local authority safeguarding teams.
Peter
Dean, a registered manager of Iceni Care Home, said: “All complaints
and allegations are thoroughly investigated within our established
robust processes. Safeguarding allegations are routinely shared with CQC
and the local authority in a transparent manner, with whom we always
maintain close communication.
“In keeping with
our policy and obligations of confidentiality to service users and
other stakeholders, we are unable to publicly comment in respect to
these specific allegations.”
He said where
allegations were unsubstantiated the complaint was closed, and where
allegations were confirmed, changes were implemented to improve the
quality of the service.
“We operate an open culture where we value the lessons learned from feedback,” he said.
When his grandmother started experiencing a medical emergency, 6-year-old James Garcia jumped into action, and now, James is getting some special recognition for his heroics. Reporter Stephanie Buffamonte has more.
Families are frustrated by the probate courts’ handling of loved one’s estates and final wishes.
Peter and Mary Ann Brickfield split their time between Washington,
D.C., and Islesboro, an affluent island community off the coast of
Maine.
By their late 60s, they had given up high-powered careers as a lawyer
and the chief of the Neurocytology Unit at the National Institutes of
Health for a quiet retirement in their $1.7 million home on the island.
Mary Ann’s plan was to care for Peter, who had been diagnosed with
dementia. The Waldo County Probate Court appointed her to be his
guardian and conservator.
But Mary Ann developed a terminal illness that left the childless
couple looking to Michael Boucher, the longtime caretaker of their
properties, to manage the final years of their lives. More than $3
million was spent during the next three years to care for the
Brickfields while Boucher was conservator and trustee, probate court
records show.
Boucher’s accounting of the trust’s spending caught the attention of
the probate court judge, who ordered Teri McRae, a nationally certified
guardian, to review how a multimillion-dollar trust set up by the
Brickfields was being spent. McRae said in court reports that it
appeared that $400,000 may have been overspent “grossing up” wages and
paying taxes for employees — some of whom were Boucher’s family members.
Yet even when supplied with a report of alleged mismanagement and
with nearly half a million dollars in dispute, no one — not the private
company that eventually took control of the Brickfields’ trust nor the
state attorney general’s office that oversees charitable trusts — tried
to recoup the money. No one was charged with a crime, and Boucher
himself denies any wrongdoing.
Buried in Maine’s overburdened probate courts are the life savings of
people in a state with the oldest average population in the country. In
one example after another, those savings have been spent down by
conservators, taken by family members, or sometimes redirected in wills
to once-trusted lawyers for their personal gain.
The state’s probate courts do not have investigators or accountants to track the finances of vulnerable adults and make sure they are protected from theft, an investigation this year by
The Maine Monitor uncovered. And some probate courts have failed to put
safeguards in place even after blind spots in their systems were
exploited.
“We need to have something more in place — reporting and looking out
for people, whether they’re under the state’s care or under private
care, whether it’s a guardian or a conservator,” said Catherine Moore,
register of the Lincoln County Probate Court.
An estimated $4 million is lost annually by older Mainers as a result of financial exploitation, according to a study
by the state’s Adult Protective Services office and the legal-aid
nonprofit, Legal Services for the Elderly. That includes all types of
fraud, from diversion of cash to shady contractors to the loss of a
home.
The probate courts are unlike any other court in Maine. They are 16
independent courts with budgets set by each county and run by elected
part-time judges. A constitutional amendment passed by voters 56 years
ago said probate courts must be overhauled and assigned full-time
judges, but lawmakers did not make that happen.
The antiquated, underfunded and understaffed
probate courts have left Mainers vulnerable to being ripped off. A
Monitor survey earlier this year of 10 of the state’s probate courts
revealed that many do not audit conservators or guardians.
States such as Minnesota and Florida created independent offices
within their court systems more than a decade ago to detect fraud and
financial exploitation of people under the jurisdiction of the probate
courts. Maine has stuck with paper accountings and informal reviews.
Supporters of Maine’s probate courts say they are efficient and save
money, allowing families to avoid hiring a lawyer to divide up assets
after a death. But the courts rely heavily on people acting in the best
interest of the estate rather than themselves, and there are few checks
built into their operations to protect the integrity of a person’s final
wishes.
Near the end of his life, Peter Brickfield was practically bedridden
and unable to communicate. He was overfed and his life was being
medically prolonged against his written wishes, said McRae, who visited
the Islesboro home. She was moved to tears when she left their house,
McRae said.
Boucher told the Monitor he acted in the best interests of the
Brickfields and did nothing wrong. He asserted that he had been vilified
and had to spend thousands of dollars to defend himself in probate
court against McRae’s allegations. He has not been accused of criminal
wrongdoing and no civil complaint has been made against him.
The Brickfields had a team of doctors and in-home nursing care,
Boucher said. He added that McRae did not understand that the
Brickfields wanted the same lifestyle they had always enjoyed in their
home through the end of their lives.
“They lived exactly the way they died, except for the last few months
where there was a conservator who didn’t know them and didn’t
understand their wishes,” Boucher said. “They made their choices and I
vowed to follow their wishes.”
The probate judge temporarily appointed McRae as Peter Brickfield’s
conservator. McRae moved Peter Brickfield to hospice, and he died at age
77 on Nov. 16, 2020.
“For me, keeping someone alive against their will and treating them
that way is horrible. If you want to talk … (about) being cruel to
someone, he was right up there,” McRae said of Boucher. “That’s so much
worse than just money.”
Million-dollar questions
McRae has worked on probate matters from the inside and outside. She
served for four years as the Cumberland County Probate Court register,
which is the top probate court clerk position. Now, as a private
guardian and conservator, her services come at a premium, costing $210
an hour.
Conservators are appointed to manage the property or financial
affairs of a person under a protective order of a probate court.
Guardians are also appointed by the probate court and have more sweeping
powers to make decisions about an incapacitated adult’s living
situation, health care and money.
McRae said her job as a conservator is to protect the assets. If the
adult under conservatorship had given their grown children money in the
past, and could afford to keep doing so, she would approve it. But when
family members try to remodel homes under the guise of caring for the
person, she objects. Each time she has to weigh the cost of clawing back
money she believes has been misspent.
“I’m not going to spend $20,000 to find $100. It’s not happening,” McRae said.
But the Brickfields’ trust was different, McRae said.
Approximately $1 million a year was spent from the trust to care for
the Brickfields, which seemed “exceedingly high for one or two people
who are homebound,” McRae reported to the probate court. A portion of
the spending could be ascribed to their wealth, which included two
homes. But a large portion of the rest of their expenses tied back to
personnel in the house, according to her analysis.
“I don’t know how you would spend a million dollars. You’d have to
pay people $45 or $50 an hour, and that’s not what care costs,” McRae
told the Monitor.
Boucher tells a very different story. McRae’s inspection was “bogus,”
Boucher said in an interview. He worked with the Brickfields as a
caretaker of their island home for 35 years, and they nominated him to
make health care decisions, serve as conservator for Peter Brickfield
and trustee of their assets. Before they fell ill, the Brickfields made
clear they wanted to stay in their home, surrounded by 24/7 nursing
care, a chef and gardens, Boucher said.
“It was a multimillion-dollar scandal, and hijacked by the state
court system,” Boucher said. “Basically, I can tell you that both the
Brickfields, especially the last survivor, died a very miserable,
unhappy death because of the court system and a court-appointed
conservator who hijacked the Brickfields’ finances.”
Islesboro
is an affluent island community off the coast of Maine. Peter and Mary
Ann Brickfield split their time between their home on the island and
Washington, D.C. Photo courtesy the Republican Journal.
McRae raised questions with the probate court about other purchases
made from the trust, including a $14,000 lawn mower, $6,300 paid to
Boucher’s wife, and thousands of dollars of undocumented purchases at
auto- and home-repair stores.
Boucher, through his lawyer, told the probate court that his wife was
paid to go through boxes of personal items to assist accountants with
the Brickfields’ taxes. He added that he did not recall the exact reason
for many of the other expenses, but that decks, handrails and stairs
were built and other items improved the property.
Boucher was late with some required annual conservator accounting
reports and had to be reminded by the probate court to file, probate
records show. Boucher said this was true, but blamed the tardiness of
the reports on an accounting firm that was hired around the time Mary
Ann set up the trust. A friend of the Brickfields who lived in
Washington, D.C., was also named as a co-trustee, but could not be
reached for comment.
A private company that later took control of the Brickfields’ trust
notified the beneficiaries of McRae’s report and did not file a
complaint against the trustees. Trust money that has been allegedly
mismanaged does not need to be recouped if a lawsuit would be
“uneconomic,” then-Waldo County Probate Judge Sean Ociepka decided.
Ociepka declined an interview request by the Monitor.
Records reviewed by the Monitor show the state attorney general’s
office spoke with at least two lawyers involved with the case, and did
not file criminal charges. Both lawyers declined the Monitor’s request
to comment about the case. The attorney general’s office also declined
to comment further.
As they wished, about $4.6 million from the Brickfields’ trust was
distributed after their death to Georgetown University, the University
of Pennsylvania, George Washington University Law School, and nonprofits
in Maine and D.C., probate records show.
Finding fraud
Guardianship and conservatorship are good public policy, but it is
the state’s responsibility to ensure there is integrity in those
systems, said Anthony Palmieri, chief guardianship investigator for
Florida’s Office of Public and Professional Guardians, which investigates and disciplines guardians of indigent seniors.
Palmieri, a career fraud investigator, also works as the deputy
inspector general at the Clerk of the Circuit Court and Comptroller
office for Palm Beach County.
Palm Beach County set up one of the nation’s first guardianship fraud
hotlines, which receives 150 to 250 calls a year from neighbors,
attorneys and judges who suspect an incapacitated person is being preyed
upon by a guardian, Palmieri said.
The Division of the Inspector General also audits and does risk
assessments of conservators’ reports to match account balances to bank
statements. The division is accredited like law enforcement and employs
investigators to do unannounced, surprise visits with guardians,
conservators and their wards, he said.
“It sounds simplistic, but if you don’t have a program designed to
look for fraud, you’re not going to find fraud,” Palmieri said.
Maine’s probate courts don’t have any of that.
Moore, the register of the Lincoln County Probate Court, said there
is not enough time or personnel in the register’s office to audit
conservators’ accountings, or follow up on the details in many estates.
Once the paperwork is filed with her office, it is sent to the probate
judge to review and the probate court’s work is done unless the judge
asks for more information, Moore said.
“I don’t have enough time. With everything else that we do in our
office, I wouldn’t have the time to sit down and to audit or to go
through all the reporting that we get on the filings,” Moore said.
Catherine
Moore is the register of the Lincoln County Probate Court, which is run
by two full-time employees. The office does not have enough time or
people to audit conservators or follow-up on most estates. Photo by Fred
J. Field.
Financial exploitation is the third most common allegation investigated by Adult Protective Services in Maine, according to a report released this year.
The agency substantiated 15% of the 1,696 financial exploitation
allegations reported in the past two years involving people over age 60
who were not receiving developmental services. Financial exploitation
cases took the longest to investigate because they often involved
working with financial institutions, credit card companies and
professionals to obtain documents, according to the report.
Adult Protective Services can ask a probate court to appoint a public guardian
or conservator to protect a person who cannot make decisions for
themselves. But the agency is required to exhaust all other options
before seeking a public guardian, according to the report.
Maine needs to do more, said Moore. She and Kennebec County Probate Judge Elizabeth Mitchell were asked by state lawmakers in October to explain the probate courts’ guardianship process after the Monitor reported that eight adults assigned public guardians had died in unexplained ways.
The legislative hearing primarily focused on the state’s ability to
monitor the care people receive under guardianships, which is another of
the probate court’s responsibilities along with oversight of estates.
State lawmakers concluded there needs to be better communication
between Adult Protective Services and the probate courts so there is
more intensive oversight and frequent reviews of guardians to identify potential abuse, neglect or exploitation.
“I don’t have an answer, but I feel sometimes there’s not enough being done. We could do more,” Moore said.
Maine probate courts lack audit process
Family members told the Monitor they have few places to turn when
they believe a loved one’s money is being misspent while the probate
court is supposed to be a watchdog.
Shirley Cooney’s conservator, for example, spent $2,800 during
Cooney’s last seven months for 56 “companionship visits” from a woman
hired to bring Cooney’s dogs to visit her at an assisted living
facility, then sit and chat for an hour.
There were also thousands of dollars of legal fees, hundreds of
dollars reimbursed to Cooney’s guardian, and various charges for clothes
and home heating oil.
Her daughter, Elizabeth Cooney, tried to get actual receipts for
those visits and the other expenses. But her grievances were mostly
dismissed by the Cumberland County probate judge.
“It’s a … nightmare,” Elizabeth Cooney said of the operation of Maine’s probate courts.
One potential model for more rigorous oversight of conservators can
be found in Minnesota. The Minnesota Judicial Branch led the nation in
2012 by launching a statewide Conservator Account Auditing Program to
protect the assets of people in conservatorships.
The state audits each conservator after their first year and every
four years thereafter. A review team also checks conservator accountings
yearly for red flags — such as excessive fees or cars purchased when
the person under conservatorship didn’t have a license.
Jamie Majerus oversees both programs in Minnesota. They review an
average of 5,400 accounts a year, which include $1.2 billion of bondable
assets and does not include real estate, she said. Majerus is a
certified public accountant, certified internal auditor and certified
fraud examiner with a degree in accounting.
“People know they’re going to be audited. It’s not a question of “if I
will be audited,” like the IRS,” Majerus said. Conservators “will be
audited because we have these programs,” she added.
The audit program has proved a strong deterrent to anyone who would
consider taking advantage of a person under conservatorship, and
Minnesota saw a steep decline in conservators committing fraud from the
start of the program until about a year ago when her office started to
detect an increase in attempted fraud, Majerus said.
Conservators self-report transaction-level details and upload
supporting documents through an online platform. Minnesota no longer
accepts paper filings because the level of detail is so poor they are a
“waste of time,” Majerus said.
All of Minnesota’s reviews and audits are done by 18 state employees
with degrees or work experience in finance. The work is too complicated
to be done by local court clerks, Majerus said.
The reviewers and auditors send a report with their findings and
recommendations to the judge, who can order a conservator to repay
money, go after the conservator’s bond or criminally prosecute a
conservator who has appeared to have acted improperly.
“We want to ensure that the money that’s being taken care of by the
conservator is being protected and that it’s being well-managed. That’s
ultimately the goal,” Majerus said.
Several Maine probate courts said they do not audit how conservators
are spending money, according to a Monitor survey. But a few do.
Knox County for example, has a probate clerk review the accounting
reports that are filed once a year by conservators. The clerk looks to
see that the expenses and incomes balance, and reviews supporting
documents the conservator submits to see if money is being spent on
anyone other than the person under conservatorship. Yet, conservators
aren’t required to provide supporting documents.
Roughly two decades ago in Maine, conservators had to bring canceled
checks at the end of the year to the probate court registers to review
and approve, said Knox County Register Elaine Hallett, who has been with
the probate court for more than 45 years.
“It’s just how it was done back then,” Hallett said.
Maine’s probate courts still rely on paper forms, which are scanned
and made public online. Unlike Minnesota, the financial data that is
collected cannot easily be analyzed.
Maine’s conservator accounting form
requires less information than in the past, Hallett said, although she
did not believe it was a bad change. She said she didn’t think Knox
County needed more oversight of its few conservators, who are often
parents of adults with intellectual disabilities who receive Social
Security.
Majerus said Maine’s process to review conservator accountings has gaps: “My opinion is yes, things will get missed.”
Multiple lawyers disciplined for probate misconduct
Lawyers disciplined for professional misconduct during probate
matters make up a small portion of overall attorney misconduct in Maine,
but probate work is a factor in an oversized portion of cases that lead
to actual disbarments.
Of the nine lawyers disbarred in Maine since 2015, five committed
misconduct that involved probate cases in Maine or other states.
Ellsworth attorney Christopher Whalley was disbarred in December 2022
amid allegations he used client money to write dozens of checks to his
law firm while he was the personal representative of the client’s
estate, the Monitor reported. It took three years and multiple complaints for the state to detect what Whalley had done.
On Dec. 6, 2022, Whalley wrote a check for $207,109.42 to the estate,
which “fully reimbursed the estate for the misappropriated funds,”
Washington County probate records show.
A grand jury indicted
Whalley on felony theft charges in February. A grand jury indictment is
not a finding of guilt. Whalley pleaded not guilty to the charges, and
no trial date has been set. Whalley did not return a phone call seeking
comment by the Monitor.
Another lawyer, Jonathan Hull of Newcastle, was disbarred in 2020 and pleaded guilty to taking money from two nonprofit organizations in August of that year, The Lincoln County News reported.
A decade earlier, Hull withdrew approximately $47,300 from an estate
for which he was serving as personal representative in the Lincoln
County Probate Court, discipline records show. The attorney general’s
office investigated Hull related to the estate money but did not
prosecute him because the six-year statute of limitation had passed,
according to discipline records.
Hull declined to comment when reached by the Monitor in November.
The Lincoln County Probate Court didn’t make changes to prevent
misspending of estate funds. Moore, who is now the court’s register and
was working at the probate court while the case was happening, said she
didn’t know what the probate court could have done differently.
Moore,
register of probate, worked for the Lincoln County Probate Court while
attorney Jonathan Hull is alleged to have withdrawn money from an
estate. No additional safeguards were put in place after to prevent
something similar from happening again, Moore said. Photo by Fred J.
Field.
Complaints are taken seriously, Moore said. But even the complaint
process lacks a clearly defined procedure. With no set protocol, Moore
said she would likely write a note, pull the case file and talk to the
probate judge.
“The only trigger would be if a family member came forward and said,
‘Gee, something isn’t right,’ or they have questions or concerns,” Moore
said. “I’m not aware of any safeguards.”
The state Board of Overseers of the Bar is supposed to keep a
watchful eye on lawyers found to have committed acts of professional
misconduct, but that isn’t always an effective deterrent.
In another case, Jeffery J. Clark testified that his Christian faith
compelled him to become the caregiver of Eugenie “Genie” Landry. Clark
then wrote a will for her that made Clark the primary beneficiary, discipline records show.
“I made a huge error, which I admitted and for which I was
suspended,” Clark wrote in response to questions from the Monitor. He
said Landry was a friend. “She was much more than a client. I regret
what occurred and I am mad at myself for disappointing Genie.”
In 2004, while Landry was in a hospital, Clark asked an attorney with
his law firm to witness a will that left the vast majority of Landry’s
oceanfront property to Clark. Clark received about $325,000 after
Landry’s death, which he used to pay off his mortgage, board records
show. He later returned the money to the estate, probate court records
show.
“His claims of humanitarian service, based upon Christian ideals, are
rendered hollow by his participation in his client’s estate,” state
Supreme Court Associate Justice Andrew Mead wrote in a 2008 decision to suspend Clark.
Mead ordered Clark to stop practicing law for a month and report all
his clients age 60 and older to the Board of Overseers of the Bar.
But Clark surfaced in another case that same year.
That case involved John Goodwin, a Cape Neddick man in his late 60’s.
Documents reviewed by the Monitor show Clark was retained in 2004 and
revoked a daughter’s power of attorney to make medical decisions on
Goodwin’s behalf, after Goodwin had a devastating stroke where he lost
most of his ability to speak.
By 2008, though, Clark told the Monitor, Goodwin was no longer a
client of his. Clark did not report Goodwin as a client to the Board of
Overseers of the Bar when Clark’s court-ordered monitoring began in
February 2008.
Just 13 days before Clark’s license to practice law was to be
suspended on April 1, 2008, Goodwin signed a new will prepared by one of
Clark’s law partners and notarized by Clark. It dramatically changed
how Goodwin’s properties would be divided between his daughters,
grandchildren and acquaintances.
Jennifer
Goodwin filed a lawsuit in state court alleging interference in her
inheritance, after her father’s will was substantially changed. The
lawsuit was dismissed and is being appealed. Photo by Fred J. Field.
“When you look at it, you say ‘How did this happen? How could this
possibly happen?’ ” said his daughter, Jennifer Goodwin. “… My dad had a
really comprehensive estate plan, so for any of this stuff to happen
was just, like, mind-numbing.”
Clark said he served only as the notary, and explained that his role
was to determine John Goodwin’s capacity to sign the new will. Jennifer
Goodwin said her father could not write or speak and was unable to
communicate or express himself at that time.
“John had trouble speaking because of his stroke, but I determined
that he could communicate adequately his desire to execute his will,”
Clark wrote in response to questions from the Monitor.
Clark said he did nothing wrong and he never communicated with John
Goodwin about his estate or family. Clark is now retired. He said
Jennifer Goodwin was consumed with bitterness.
Jennifer Goodwin later filed a lawsuit in state court alleging Clark
and others interfered with her inheritance. Clark and other respondents
denied wrongdoing. The case was later dismissed because Jennifer Goodwin
did not add her sister and others quickly enough to the case. An appeal
of the dismissal is pending with the state Supreme Court.
Torn apart
Even in death, Mainers have few protections in probate court.
Rebecca Theriault’s estate, for example, was presented to the
Kennebec County Probate Court on a four-page form submitted by her
husband, Tim Theriault, the former China Village fire chief and state
Republican legislator. He checked off a box that indicated Rebecca left
no will, and he signed the form under the penalty of perjury.
But there was a will from 1987 that left everything to Rebecca Theriault’s three children.
Tim Theriault said that he did not know that Rebecca, who was a widow, had written a will before they married.
The will set off a two-year legal battle after she died in August
2021, fracturing the family and ending in a settlement that divided the
properties and remaining money.
“This is tearing the whole family apart,” said David Marceau, who is
Rebecca Theriault’s brother and the person she nominated in 1987 to
oversee her estate after her death.
The family was still in shock and grieving Rebecca Theriault’s death
from cancer when a letter arrived saying her husband had been appointed
to oversee the estate, Marceau said. Rebecca’s youngest daughter,
Crystal Chappell, said she was surprised by the probate court’s lack of
diligence in checking to see whether there was a will.
Tim Theriault spent money from Rebecca’s estate to continue building a
home while serving as the personal representative, according to a
deposition he gave in April 2022. It was a new two-story lakefront house
with a deck overlooking China Lake in Kennebec County. Tim Theriault
later said the house was not a part of the estate.
Marceau’s lawyer submitted the missing will and asked the probate
court to remove Tim Theriault as personal representative of the estate.
Chappell also subpoenaed her mother’s bank records.
“The bank statements confirmed what we thought, which was that while
he was acting as personal representative and there was a petition in
place for removal, that he had spent hundreds of thousands of dollars in
estate funds,” Chappell said.
Rebecca and Tim Theriault owned multiple properties in Maine, but his name was not on all the deeds or bank accounts.
Surviving spouses have a right to a portion of the deceased’s
property under Maine law, and Tim Theriault testified during a
deposition that, “That law protected me from her will. I thank God for
that.” Otherwise, he said, his wife’s will would have left him
“homeless.”
Tim Theriault told the Monitor that he could not find all of
Rebecca’s money, which became a major controversy in the probate court
case. He knew bank accounts existed but not where they were located, he
said. He used the bank account he was able to locate with the belief he
was entitled to half as her spouse under state law, he said.
Tim Theriault said his three stepchildren are “ungrateful and disrespectful.”
“I tell everyone I’m seeing right now, ‘If you don’t have a will, go
get a will, because it’s just horrendous these kinds of things can
happen.’ It’s sad,” Tim Theriault told the Monitor.
David
Marceau, left, was named as personal representative of his sister,
Rebecca Theriault’s, will. Crystal Chappell, right, and her two siblings
were the sole beneficiaries named in her mom’s will, but their
stepfather spent money to build a house while the case was pending in
the Kennebec County Probate Court. Photo by Fred J. Field.
But it took five months to schedule a court date, at which Tim
Theriault voluntarily resigned as personal representative of his wife’s
estate. The probate judge ordered an independent fiduciary to take over
and later to produce an accounting of the estate. Mediation after
mediation failed as the family tried to determine what belonged to the
estate.
Tim Theriault told the Monitor that his experience with the probate
court was “miserable.” The probate judge did not want to make decisions
about anything, Tim Theriault said.
Chappell agreed and said the probate court wasted time by not making decisions to its own detriment.
“Not only would it have saved the siblings money in legal fees, but
think about all the time that the judge had to spend. We went back to
court at least half a dozen times in a court system that is already
overburdened and doesn’t have time for these cases,” Chappell said.
In the end, five lawyers for various family members hashed out the
details of what Rebecca Theriault’s final wishes would be. The lawyers
huddled in the probate court’s hallways and scribbled out the settlement
by hand on lined paper, which their clients then agreed to and signed.
