Sanction against Northwestern law prof affirmed by 10th Circuit

By Debra Cassens Weiss

A federal appeals court has affirmed a $5,000 sanction against a professor at the Northwestern University Pritzker School of Law for seeking to remove a state court motion to federal court, finding no abuse of discretion by a federal judge who imposed it.

In an Oct. 30 unpublished opinion, the 10th U.S. Circuit Court of Appeals at Denver said it discerned no reversible error by U.S. District Judge Daniel D. Domenico of the District of Colorado.

Domenico had sanctioned professor Bernard S. Black for seeking to remove the state court motion that sought to oust him as a trustee for the conservatorship estate of his sister. The sister is mentally ill and unable to manage her affairs.

Lawyers for Black’s sister filed the motion to remove him after a Colorado probate court found that Black improperly diverted some funds from his sister while serving as executor of his mother’s estate.

Domenico said the removal attempt was improper because motions can’t be removed to federal court and because the underlying probate matter couldn’t be heard in federal court.

The $5,000 sanction represented the sister’s attorney fees plus costs. A magistrate judge had found that the claimed fees were reasonable, “particularly in light of the 269 pages of briefing Mr. Black had filed in the matter,” the 10th Circuit said.

Black told the ABA Journal that he is “frankly shocked that I didn’t get a serious hearing before the 10th Circuit.”

The whole purpose of removal, he says, is to allow a party to escape from a state court judge who might be biased.

The probate judge, he says, is “running what can only be described as a racket that extracts wealth from people subjected to guardianship or conservatorship.”

Black had contended that removal was proper because his sister’s motion to oust him as conservator initiated an independent controversy, essentially constituting a new civil action.

The appeals court summarizes other arguments.

Black “contends that it was improper to impose a bar referral sanction in addition to a monetary award; that the district court failed to give him adequate notice that in considering whether to impose sanctions, the court would consider his conduct in other cases; that the district court misunderstood those other cases; that the sanctions were punitive and therefore warranted ‘criminal-type procedural protections;’ … and that it was improper to judge his conduct in cases where he acted in a different legal capacity.”

The 10th Circuit rejected the arguments “upon review of the record, the briefs, and the district court’s well-reasoned orders, and in light of the appropriate review standards.”

In the probate case, Black contended that he was carrying out his mother’s estate plan to put two-thirds of her estate into a special needs trust for Black’s sister and one-third into a trust for Black and his children. To do that, he disclaimed payable-on-death benefits in his mother’s brokerage account that sent nearly all the funds directly to the sister.

A probate judge ordered Black to reimburse his sister $1.5 million and trebled the damages, which required Black to come up with an additional $3 million.

Black told the Journal that the Colorado probate judge wrongly decided that he stole money from his sister.

“I didn’t,” Black says. “All the money is in trust. Nothing is stolen.”

In his 10th Circuit brief, Black said the dispute has led to “cascading travesties of justice.” The Denver probate court repeatedly ruled against him, “often without notice, jurisdiction or evidence,” he wrote in the brief.

Black said in the brief his sister has lived in New York since 2013, and she was found competent by a New York court in 2016. Yet the Denver probate judge refused to terminate the conservatorship.

Then the federal courts relied on the Denver probate judge’s findings, he says.

“This is another instance in which I have been truly stunned at the extent to which you get one judge who says bad things about you, and no other judge will take a serious look at the merits,” Black told the Journal. “The district court didn’t, and now, the 10th Circuit has not. That’s not the way our justice system is supposed to work.”

“We need more willingness in our system to understand that not everything a judge says is true. In another case, a second judge has to be willing to have an open mind,” he says.

Black maintains that Domenico wrongly concluded that the case shouldn’t be in federal court because of the probate exception. The exception doesn’t appy, Black says, because the Colorado court was not administering a decedent’s estate.

His appeal in state court maintains that there should be no conservatorship in Colorado because his sister no longer needs it. He has not paid $4.5 million “because I don’t have it,” he says.

What happens next?

“I wait and see if the New York bar wants to do anything with the referral” for alleged ethics violations, he says. “If they do, I defend.”

Hat tip to Law360, which covered the 10th Circuit’s decision.

Full Article & Source:
Sanction against Northwestern law prof affirmed by 10th Circuit

Michigan Supreme Court to Hear Oral Arguments on AG Nessel’s Appeal of Controversial 1999 and 2007 Consumer Protection Decisions

LANSING – On Wednesday, the Michigan Supreme Court (MSC) ordered that oral arguments be scheduled in Attorney General Dana Nessel’s appeal of an order preventing her department’s investigation of Eli Lilly and Company’s insulin pricing practices. Eli Lilly has used two past decisions of the MSC to assert the Michigan Consumer Protection Act (MCPA) is inapplicable to its sale of insulin, those being the decisions in Smith v. Globe Life Ins. Co. and Liss v. Lewiston-Richards, Inc. The Supreme Court has now agreed to hear arguments for reversing those decisions, which the Attorney General asserts are not supported by a plain reading of the law.   

The Smith and Liss decisions preclude state investigation of suspected illegal business practices when the target business sells products or services authorized for sale by a law administered by a state or federal agency, irrespective of allegations pertaining to how they conduct that business. This flawed and broad interpretation of a narrow exemption within the MCPA shields many corporations from any state scrutiny of even the most egregiously unfair alleged business conduct. 

Were the Michigan Supreme Court to reverse the decisions in Smith (1999) and Liss (2007), the Michigan Consumer Protection Act would once again be interpreted to apply as intended, as evident by the law's own title, and the State would regain significant authority to defend consumers from deception and price gouging. Because of the Smith and Liss decisions, the MCPA has been held to no longer apply to the kinds of transactions Michiganders engage in every day—like buying automobiles, building or repairing their homes, dealing with telecommunications providers, and buying any kind of medication. A reversal of these decisions would restore a robust state defense of Michigan consumers.  

“The Smith and Liss decisions were decided on a misapplication of the law, and today are weaponized by corporations evading scrutiny into how they treat consumers,” said Nessel. “The Michigan Consumer Protection Act was meant to empower the State to combat predatory business practices, and these rulings should not stand to impair the government’s defense of vulnerable customers or even patients. While our appeal acutely seeks an investigation into insulin pricing allegations, a reversal of the Smith and Liss decisions would have widespread ramifications for our ability to investigate, litigate, and enforce the MCPA all across the consumer marketplace, where oftentimes the State law is rendered toothless and the vulnerable customer defenseless. 

“We look forward to making our arguments before the Michigan Supreme Court and will continue our efforts with the Legislature to further bolster the Consumer Protection Act.” 

In January 2022, Attorney General Nessel launched an investigation into Eli Lilly, one of the nation’s three largest drug-manufacturing companies producing insulin. The action sought to use the MCPA to investigate various aspects of Lilly’s pricing practices related to life-saving medications used by diabetics. Nessel also filed a companion Complaint for Declaratory Judgment, asking the court to declare that the exemption in section 4 of the MCPA does not prohibit an investigation into Eli Lilly’s insulin pricing. But Eli Lilly used the Smith and Liss decisions to obtain an order stating that the MCPA does not apply to its insulin sales, thus halting the investigation. 

In July of 2022, Ingham Circuit Court Judge Wanda M. Stokes granted Eli Lilly’s motion for summary disposition, holding that the Smith and Liss decisions preclude application of the MCPA to Lilly’s sale of insulin medications because the general practice of selling insulin is authorized by the Food and Drug Administration (FDA). 

A claim of appeal was filed with the Court of Appeals (COA) along with a bypass application to the MSC. The MSC denied the bypass application but asked the COA to expedite the appeal. The COA upheld the lower court’s decision, leading to the Attorney General's filing with the MSC in August of 2023. 

The Attorney General’s appeal is not based on the merits of whether Eli Lilly has violated the MCPA, but rather on the Attorney General’s authority to investigate possible MCPA violations under the MCPA when Eli Lilly is generally authorized to sell insulin medications by the FDA but is bound by no FDA regulations regarding the pricing of those medications.

Source:
Michigan Supreme Court to Hear Oral Arguments on AG Nessel’s Appeal of Controversial 1999 and 2007 Consumer Protection Decisions

COA affirms denial of guardianship for 95-year-old veteran but reverses attorney fees award

by Katie Stancombe

The Indiana Court of Appeals has affirmed the denial of a guardianship petition for an elderly Vincennes man who revoked a former friend’s position as his power of attorney. However, the appellate court reversed an award of more than $70,000 in attorney fees he requested.

John J. Yocum Jr., who at 95 lived alone in the same Vincennes house where he grew up, was able to take care of his own daily needs and kept the residence well maintained.

Prior to his death in August 2021, Yocum was injured when he fell at home in August 2018 and was subsequently hospitalized after being found on the ground roughly three days later. Lydia Duncan, whom Yocum had met at church, agreed to live with and care for the elderly man on the condition that he make her his power of attorney.

Duncan was ultimately made Yocum’s POA and health care representative, with Yocum’s friend Donald Fredrick serving as successor in both roles. They also served as trustees of Yocum’s charitable trust, which held the bulk of his estate.

In her role as attorney-in-fact, Duncan deposited $100,000 from the liquidation of Yocum’s certificates of deposition into a new checking account and listed herself as a co-owner of the account. Yocum also set up a $50,000 educational trust for Duncan’s daughter.

In December 2019, Duncan and Yocum got into an argument over who canceled his eye doctor appointment. Duncan, who called Yocum a liar, then alleged he battered her by pushing her down and kicking her after she refused to stop looking through his paperwork. However, the Gibson Circuit Court concluded Duncan “set up” Yocum by recording the argument and falling down.

Duncan, who confessed to recording Yocum on several occasions without his knowledge, was soon thereafter removed as his POA. In September 2020, Yocum named David Lancaster as his attorney-in-fact and health care representative, specifically revoking Duncan.

Additionally, Yocum, who had testified that he didn’t trust either Duncan or Fredrick, executed a new will leaving his estate to his church rather than to Duncan. He also defunded the educational trust.

Duncan and Fredrick petitioned for appointment of guardianship over Yocum, alleging that he required 24-hour care, that he lacked the requisite capacity to execute the power of attorney change and that the new will was invalid due to fraud, duress or undue influence. They also sought to have him examined.

But the trial court concluded their guardianship petition was “frivolous, unreasonable, groundless” and that neither Duncan nor Fredrick were qualified persons suitable to serve as Yocum’s guardians due to the evidence of their adversarial histories and of Duncan’s past breach of her fiduciary relationship with him. It also concluded Yocum was not an incapacitated person under Indiana Code § 29-3-1-7.5 and that a guardianship wasn’t necessary. Finally, it ordered Duncan and Fredrick to pay $71,689.40 in attorney fees.

The Court of Appeals of Indiana affirmed the denial of the guardianship petition, finding the appellants failed to establish that Yocum was unable to care for himself or his property. As such, an appointment of a guardian was not necessary, it concluded.

As to his contractual capacity, the COA concluded Yocum understood the purpose and necessity of appointing a power of attorney and that he could revoke it at any time.

“We agree that John only had a limited understanding of his attorney-in-fact’s power to act on his behalf,” Judge Paul Mathias wrote. “And John could not specifically remember executing the documents granting David Lancaster his power of attorney, but he was able to identify the document, he understood what the document was, and that he signed it. That John did not have a complete understanding of the power of attorney’s ability to make decisions on his behalf, does not mean that he lacked contractual capacity.

“… Moreover, the fact that John was diagnosed with dementia does not mean that John lacked contractual capacity,” Mathias continued. “Although John could not recall executing the documents at issue, he understood the documents and their purpose, recognized his signature, and wanted David to act as his power of attorney.”

But the COA reversed and split on the issue of attorney fees, with the majority concluding the appellants’ arguments were not devoid of all plausibility. The appellate court also denied Yocum’s request for appellate attorney fees.

But Judge Elizabeth Tavitas dissented, arguing the trial court made additional findings that supported the entry of an attorney fees award.

“The record clearly reveals that the Appellants undermined and took advantage of John and initiated the guardianship for pecuniary gain,” Tavitas opined in dissent. “… The trial court did not err in awarding attorney fees regarding the Appellants’ frivolous claim, which they litigated in bad faith. … Accordingly, I concur in part and dissent in part.”

The case of Lydia A. Duncan and Donald E. Frederick v. John J. Yocum, Jr., 20A-GU-2299, was remanded for proceedings consistent with the opinion

 

Full Article & Source:

COA affirms denial of guardianship for 95-year-old veteran but reverses attorney fees award

C.A. Reverses Judgment Dissolving Marriage

Panel Says Judge Was Obliged to Hold Hearing on Competence of Husband to Decide to End Marriage

By a MetNews Staff Writer

Div. Three of the Fourth District Court of Appeal has taken the rare action of reversing a judgment dissolving a marriage, holding that a judge of the Orange Superior Court erred in declining to hold a hearing to determine if there was merit to the wife’s contention that her husband lacked the mental capacity to determine that he wanted a divorce.

Under a status-only judgment by Judge Sandy N. Leal, the 39-year marriage of Wayne Steven Hermes and Julie Amanda Hermes ended on Oct. 4, 2019. That judgment was reversed in an unpublished opinion filed Wednesday.

Not specified by the author of that opinion, Justice Richard D. Fybel, is whether the Hermes’s present status is that of husband and wife—or whether that prior status will be restored upon finality of the opinion in 30 days. The answer was provided yesterday by an expert in appellate and family law, Julia C. Shear Kushner, who advised:

“Per Family Code Section 2341, subdivision (b) since this appeal challenged termination of marital status, the dissolution judgment was stayed pending the resolution of the appeal. As a result, the parties have been married for the duration of the appeal. Because the statute automatically stayed the dissolution judgment, the parties marital status was not terminated. So the parties are currently married—and have always been married throughout the proceedings.”

The wife questioned the husband’s mental competence based on a marked change of mood and personality following a concussion he suffered in a 2012 bicycling accident, as well as concussions incurred in subsequent mishaps. She attempted at various points in the divorce proceedings to have medical evidence heard as to her husband’s mental competence but it was spurned by the judge, who suggested she might seek a conservatorship.

Kushner said in Wednesday’s opinion:

“Mental capacity is required to enter into a valid marriage….Lack of capacity therefore can be raised as a defense to a petition for dissolution of marriage….The requisite mental capacity must be maintained throughout the dissolution action….”

He went on to say:

The trial court’s admonition to Julie to seek a conservatorship confirms the court misunderstood the scope of its authority. The standard for appointing a conservatorship and the standard for mental capacity to end a marriage are not the same.”

The jurist explained that competence to seek a divorce entails an ability to exercise judgment and to express a desire for termination of a marriage based on irreconcilable differences, while a conservatorship requires, under Probate Code §1801(a), that the person be “unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter.” He wrote:

“[A] person may be the subject of a conservatorship yet still have the capacity to end a marriage….[I]f a conservator were appointed for Wayne, the trial court still would have the obligation to make a finding on the issue of Wayne’s mental capacity to seek a divorce. “The trial court also mistakenly believed it did not have the authority to order a physical and mental examination of Wayne. The trial court had such authority pursuant to Evidence Code section 730. Although the trial court is not required to order an examination of Wayne, it must at least consider whether to do so.”

The full disposition reads:

“The judgment of dissolution is reversed. The matter is remanded with directions for the trial court to do the following: (1) determine whether to order a physical and mental examination of Wayne; (2) conduct an evidentiary hearing on the issue of Wayne’s mental capacity to bring and maintain a petition for dissolution of his marriage to Julie; and (3) make a determination on the issue of Wayne’s mental capacity to bring and maintain a petition for dissolution of his marriage to Julie. If the trial court finds that Wayne had the requisite mental capacity at all appropriate times, then the judgment of dissolution shall be reinstated. Appellant to recover costs on appeal.”

The case is Marriage of Hermes, G058623.

Full Article & Source:

C.A. Reverses Judgment Dissolving Marriage

Lawyer Taken to Task for Seeking to Represent Both Conservatee and Would-Be Conservator

The lawyer on appeal for a woman who wants to be appointed as her husband’s conservator, in place of his daughter by a first marriage, has been derided by Div. Three of the Fourth District Court of Appeal based on his effort to become, additionally, lawyer for the conservatee.

Justice William W. Bedsworth wrote the unpublished opinion in each of two cases, filed Tuesday, dealing with the conservatorship of Edward Raymond who, since January 2016, has been in need of care.

In Conservatorship of Raymond, G056805, Orange Superior Court Judge Jacki C. Brown’s order appointing Raymond’s daughter, Darlene Azar, as the conservator was affirmed. In that case, Laguna Beach attorney James G. LeBloch contested the appointment of Azar over his client, Dawna Ludwig—and also argued that he, not then-Deputy Public Defender Jon Feldon (now a private practitioner), should have been appointed by Brown as attorney for Raymond.

At the May 3, 2016 hearing at which Feldon was designated as the attorney for Raymond, LeBloch represented that he had drafted Raymond’s estate plan and, accordingly, was still his attorney.

In Azar v. Ludwig, G057920, the appeals court affirmed Orange Superior Court Judge Ronald L. Bauer’s order disqualifying LeBloch from representing Ludwig in an action brought against her by Azar, in part on behalf of her father and his estate, alleging elder abuse and fraud. The complaint accuses Ludwig, 69, of fraudulently inducing Raymond, 84, into marrying her.

No Standing

Bedsworth wrote in Conservatorship of Raymond: 

“To the extent LeBloch is appealing on his own behalf—which appears to be the case—the appeal is dismissed. LeBloch is not a party to this proceeding, and he has no standing to appeal on his own behalf. He also does not represent the conservatee, Raymond, so he has no authority to speak for Raymond. The obvious conflict of interest represented by his current representation of one of the adversarial parties—Ludwig—would also militate against his appointment as Raymond’s attorney, even if we could consider such a thing.”

His purported appeal was dismissed.

Evidentiary Support

The decision to appoint Azar as conservator for her father, who is in a nursing home, was found to be supported by the evidence. The justice said:

“In this case, the court had plenty of evidence to support its choice of Azar over Ludwig as Raymond’s conservator. The court alluded to this evidence in the statement of decision: Ludwig’s refusal to listen to healthcare providers, her obvious financial motivation for seeking to care for Raymond at home, her disregard of others’ needs and her self-absorption. Even if Raymond could have been safely cared for at home, Ludwig was not the person to be entrusted with this task.”

Bedsworth remarked in a footnote:

“Ludwig rather unwisely characterizes the epic as a ‘Cinderella type story,’ a conflict between a stepmother and a stepdaughter. Apparently Ludwig has forgotten that in the Cinderella story, the stepmother is the villain.”

Incongruous Positions

Addressing the disqualification order, appealed in Azar v. Ludwig, Bedsworth declared: 

“Attorney LeBloch appears not to appreciate the incongruity of his position in each of the two appeals decided today. If he had prevailed in the conservatorship appeal, he would be representing the conservatee, Raymond. If he had prevailed in this appeal, he would be representing Ludwig, who is being sued by, among others, Raymond’s person and estate. His inability to see the conflict in these two positions is perhaps the best reason of all for refusing to allow him to participate in either proceeding.”

Although barred from representing Ludwig in the Superior Court, LeBloch was her attorney in both appeals decided on Thursday. Azar made no appearance in the case in which her appointment was challenged; she was represented by Jonathan L. Gerber and Nicole M. Peterson of the Irvine firm of Miller Miller Gerber in the appeal from the order disqualifying LeBloch.

Full Article & Source: 
Lawyer Taken to Task forSeeking to Represent Both Conservatee and Would-Be Conservator

Court tosses disgraced guardian Rebecca Fierle’s appeal of ruling she misused DNRs

Click to Watch Video

For a second time, a panel of judges has dismissed an appeal by former Orlando guardian Rebecca Fierle, who sought to quash an Orange County judge’s order finding she violated state rules by misusing “do not resuscitate” orders on incapacitated clients.

The Fifth District Court of Appeal in Daytona Beach on Thursday tossed Fierle’s appeal, in which she argued Circuit Judge Janet C. Thorpe overstepped when she wrote in a Sept. 12 order that she had “no confidence in Ms. Fierle’s actions, reliability, or truthfulness as a professional guardian.”

“This court finds probable cause to permanently remove Rebecca Fierle from any appointment in Orange County as a professional guardian,” Thorpe wrote.

The embattled guardian, who had overseen hundreds of wards across the state, was arrested last month on charges of aggravated abuse and neglect of an elderly person in the death of 75-year-old Steven Stryker, an incapacitated client who died at a Tampa hospital in May.

Medical staff were unable to attempt to save his life because Fierle had signed a DNR order against his wishes and the protests of his daughter, health-care surrogate and psychiatrist.

The court-appointed decision maker later admitted to routinely filing DNRs on her wards.

Fierle’s attorney, Harry Hackney, argued in the rejected appeal that Thorpe’s decision should be reversed because she wrongly suggested the guardian needed permission from a judge or family members before signing a DNR for a ward.

“[Fierle] can consult family and friends to discern what the ward would have done when competent,” Hackney argued. “She is NOT required to get their permission nor the court’s.”

Attorney General Ashley Moody’s office called that a “strawman argument.” Thorpe did not object to Fierle signing DNRs on behalf of incapacitated clients but rather to her doing so against wards’ wishes, like in Styker’s case, said Senior Assistant Attorney General William H. Stafford III.

“The circuit court found probable cause that [Fierle] failed to act in the best interest of at least one of her wards by signing a DNR, not that court approval was required in all instances,” Stafford wrote.

In November, the appeals court denied a separate petition by Hackney that sought to remove Thorpe from the case.

Hackney did not immediately respond to a request for comment Friday.

The Stryker case embroiled Florida’s guardianship system in scandal. Since Fierle resigned from all cases statewide in July, further investigations have found she mismanaged wards’ fiances, double-billed for services and improperly billed AdventHealth Orlando for nearly $4 million in unauthorized payments.

A series of Orlando Sentinel special reports exposed gaps in Florida’s guardianship system, including potential conflicts of interest on committees that determine whether a person should be placed under guardianship and loopholes that allow guardians to seek their own appointments, despite state law generally requiring a rotation system.

State lawmakers passed legislation Wednesday to fix those flaws by requiring guardians to get a judge’s approval before signing DNRs on behalf of incapacitated clients, prohibiting them from seeking their own appointment to specific cases and revising provisions related to conflicts of interest.

If signed by Gov. Ron DeSantis, the law would go into effect July 1.

Full Article & Source:
Court tosses disgraced guardian Rebecca Fierle’s appeal of ruling she misused DNRs

See Also:
Marion deputies release video of arrest of former Florida guardian Rebecca Fierle

Attorney General Ashley Moody fires back at embattled former Florida guardian

Guardian at center of Florida scandal appeals judge’s ruling that she broke state rules by misusing DNRs

Ex-guardian Rebecca Fierle charged Altamonte Springs facility $100K, illegally pocketed refunds, investigation finds

Florida Elder Affairs chief announces ‘immediate’ changes as embattled Orlando guardian Rebecca Fierle resigns from all cases

Florida professional guardian Rebecca Fierle: Devoted or dangerous? | Exclusive

Cremated remains of 9 people found at Orlando office of disgraced former guardian Rebecca Fierle

Expert’s complaint against Florida guardian Rebecca Fierle was ignored for years before scandal erupted | Exclusive

Orlando guardian accused of filing unauthorized ‘do not resuscitate’ orders resigns from Seminole cases

Watchdog: In Short Hearing, Fierle Given Guardianship Over Patient

Judge releases confidential information to authorities investigating former Orlando guardian Rebecca Fierle

County will appeal costly ruling to state Supreme Court

Ozaukee County, which is on the hook to pay more than $98,000 in attorney’s fees related to a guardianship case it lost, will appeal it to the state Supreme Court, officials decided Wednesday.

The county Executive Committee voted unanimously to appeal the case on the advice of Corporation Counsel Rhonda Gordon. If the high court chooses to take the case, oral arguments would likely begin in spring.

The Second District Court of Appeals ruled last month that Ozaukee County Circuit Judge Joseph W. Voiland was correct when he dismissed a 2015 petition filed by the county’s Department of Health Services seeking guardianship of an 80-year-old woman’s estate and sought to place her in assisted living. Voiland also ordered the county to pay $97,746 in private attorney fees accrued by her son. who opposed the petition, according to the appeals court ruling. The woman and her adult children are identified only by their initials in court documents.

According to the appeals court ruling, the woman had assigned power of attorney to the son, taking that away from her daughter with whom the son had been at odds for years. But the county believed the woman was not competent to make that decision, had possibly been coerced by her son to do so and believed it was in the mother’s best interests for the county to assume guardianship.

Voiland sided with the son.

The appeals court supported Voiland in that decision. But it disagreed with Voiland on whether the county should pay the son’s legal fees related to the appeal and sent the case back to Voiland to determine what those fees are.

According to the case summary contained in the ruling, 22 witnesses testified before Voiland, creating what the three-judge panel called “protracted proceedings.” They included the woman’s psychologist, estate planning attorney, investment adviser, her children, county and senior center workers and others familiar with the woman.

Evidence showed the woman was diagnosed with early dementia in 2012 and Alzhiemer’s disease in 2015, exhibited poor short term memory, sometimes didn’t know the date or day, had issues with organization and food storage and spent large sums of money on items from infomercials.

But others testified she also had an active social life that included belonging to a book club and attending exercize classes, cared for her dog and tended to her home and errands.

In Voiland’s opinion, the county did not establish that the woman was incompetent when she signed the power of attorney over to her son.

With the competing accounts, the appeals panel said, Voiland was “like Tevye in ‘Fiddler on the Roof,’ the court was presented with much on-the-one-hand-but-on-the-other-hand testimony as to both incompetency and undue influence.”

In their decision to support Voiland, the appellate judges said the county presented few if any arguments to justify overturning his decision, saying “the county’s dogged rehashing of evidence contrary to that supporting the court’s decision does not persuade us that the court erred.”

As for the fees the county is responsible for, the county argued they were excessive and that a lower rate should be applied, namely the rate paid to public defenders.

But Voiland and the appeals judges said the law prescribes that the rate, if private attorneys are used, should be the rate “customarily charged in the locality.”

The public defender rate, Gordon said, would have been $480 for the entire case.

The county did not contest the fees until after the fact, the judges ruled, and therefore was liable to pay the private fees. The county also refused the son’s settlement offers, even after the county’s guardianship was denied, the judges pointed out.

Gordon disputed the court’s opinion.

“This was a classic case of elder abuse,” Gordon said in an interview. “We did what we would hope every county elder agency would do in similar circumstances.”

County Board Chairman Lee Schlenvogt said, “We have an obligation to our taxpayers” to fight the decision, which could set a precedent for counties all across the state.

“I think we have some good feelings on this, not just financially but for the future,” Supervisor Paul Melotik told the committee.

Full Article & Source:
County will appeal costly ruling to state Supreme Court

Judge orders couple charged in scam not to enter elderly woman's home

A judge on Thursday granted a temporary restraining order to the guardian of an elderly woman who deeded her Milwaukee house to the couple next door who were later charged with defrauding her.

Orlin and Craig Root-Thalman, a married couple, obtained the title to the 92-year-old woman's home in the summer of 2016. Later, she was found incompetent and lawyer Eamon Guerin was appointed as her guardian and a probate judge voided the quitclaim deed.

At the end of 2017, the Root-Thalmans were charged with fraud. Their cases are pending.

But in late May, the Court of Appeals reversed the probate judge's attempt to void the transfer because the Root-Thalmans were never given notice their property rights might be in jeopardy at the guardianship hearing and never had the chance to hire an attorney or prepare a defense.

In court Thursday, Guerin's attorney told Milwaukee County Circuit Judge Stephanie Rothstein that the appellate ruling would become effective next week, and Guerin was concerned the Root-Thalmans might then try to enter, sell or rent the woman's house, or remove her personal property that's still there.

On Monday, Guerin, as the guardian, sued the couple to clarify to "quiet title," that is, have the court declare that his ward is the sole legal owner of the property, on the grounds the quitclaim deed was obtained by fraud or undue influence.

Guerin said the woman has been living in her own apartment with 24-hour care since she was taken from the hotel where the Root-Thalmans had moved her while they said they were having improvements made to her house. 

Rothstein granted the order and set the matter for an injunction hearing, with the Root-Thalmans' attorneys also present, for August.

Craig Root-Thalman is scheduled to change his not guilty plea in July. Orlin Root-Thalman's case is scheduled for trial in September.

Full Article & Source:
Judge orders couple charged in scam not to enter elderly woman's home

See Also:
Wisconsin: Appeals Court Returns Elderly Woman's House to Couple Charged With Stealing It

Couple charged with scamming home, cash from 92-year-old neighbor with dementia

Wisconsin: Appeals Court Returns Elderly Woman's House to Couple Charged With Stealing It

A Milwaukee couple charged with unlawfully taking title to a mentally incompetent woman's house have won the house back in the state Court of Appeals — at least for now.

Before they were charged with crimes, Orlin and Craig Root-Thalman were involved in a probate court case about their 92-year-old neighbor. In the fall of 2016, social services workers had become suspicious the Root-Thalmans might be financially exploiting the woman, who had no children.

The county's Department of Aging petitioned for temporary guardianship, alleging she was suffering dementia. She had given the couple her home via a quitclaim deed and gave them powers of attorney for her finances and health care in July 2016.

The Root-Thalmans attended a hearing as interested parties.

Milwaukee Circuit Judge David Borowski seemed skeptical of the Root-Thalmans' explanations that they had moved the neighbor to a hotel while they renovated her home so she could move back in and that they were merely trying to consolidate her nearly $2 million in savings from more than a dozen area banks into one account.

When Orlin Root-Thalman tried to explain answers, Borowski cut him off, according to the Court of Appeals decision, and ultimately ordered him arrested for contempt of court for trying to interrupt Borowski.

Borowski granted the temporary guardianship and voided the July 2016 quitclaim deed conveying the woman's property to the Root-Thalmans. Months later, at the end of 2017, the Root-Thalmans were charged with crimes.

Those cases are pending, but the Court of Appeals late last month reversed Borowski's decision to void the property transfer because the Root-Thalmans were never given notice their property rights might be in jeopardy at the guardianship hearing and never had the chance to hire an attorney or prepare a defense.

"In addition, the circuit court repeatedly prevented Orlin from testifying in response to questions from the attorneys and from the court itself. Craig was not given any opportunity to testify," the court wrote.

The guardian Borowski appointed in 2016, lawyer Eamon Guerin, could still try to undo the transfer on behalf of the woman, in a separate action, the court wrote. He said he expects to pursue an action soon.

In the criminal complaint, prosecutors charged that the filing of the quitclaim deed was a felony: "The deed was false and a sham because J.H. lacked the mental competence to validly execute the deed. She could not, as the deed attests, 'acknowledge' the meaning and import of the deed. By filing this false and sham deed, the defendants committed the crime of Criminal Slander to Title."

Craig Root-Thalman is scheduled for a plea hearing in July.

Orlin Root-Thalman has been vigorously litigating his case. His attorney, Justin Singleton, argued that complaint should be dismissed because prosecutors withheld facts that tended to favor Orlin Root-Thalman and misstated others. He sought sanctions against the prosecutor, Assistant District Attorney Kurt Benkley, as well.

A judge ruled against the defense. And Singleton withdrew his motion for sanction.

Benkley filed his own motion for sanctions against Singleton for bringing what the state calls frivolous motions. He sought a reimbursement to the state for more than $1,000 for the time Benkley said he spent responding to the defense motions.

A judge is scheduled to rule on that motion Friday.

Source:
Appeals court returns elderly woman's house to couple charged with stealing it

See Also:
Couple charged with scamming home, cash from 92-year-old neighbor with dementia

Jury hits lawyers with $16.4M for doing senior wrong in guardianship

Advocates for guardianship reform clamored in vain for years that Florida’s system failed to properly protect incapacitated seniors, that its primary purpose had been perverted to line the pockets of greedy attorneys and professional guardians with the hard-earned life savings of the elderly.

Now they can point to a new federal verdict awarding a whopping $16.4 million in a lawsuit claiming that two West Palm Beach attorneys breached their fiduciary duties while running up “unnecessary and excessive fees” of $1 million.

“It’s really kind of a landmark case,” said Julian Bivins, who brought the suit as the personal representative of the estate of his father, Oliver, a Texas oil man. “It sends a message to these unscrupulous lawyers and guardians that they are not going to be able to get away with it anymore.”

The Bivins guardianship case emanates out of the court of Circuit Judge Martin Colin, the subject of an investigation by The Palm Beach Post into the judge’s conflicts of interest because his wife is a professional guardian.

Colin in open court had heaped praise on the attorneys who lost the case and refused to hold a hearing to decide whether the attorneys had “secretly” kept money from the sale of one of Oliver Bivins’ properties in an escrow account for more than a year, according to court documents.

The Post’s award-winning series featuring Colin, Guardianships: A Broken Trust, resulted in an overhaul of guardianship rules in Palm Beach County. Colin retired last December after he was transferred from the Probate & Guardianship Division because of The Post’s reporting.

Weeks after The Post published, Julian Bivins filed a motion to disqualify Colin, saying his concerns about the “close-knit atmosphere of the Guardians, their attorneys” and Colin had been “glaringly brought to light” in the stories.

Retired Judge Martin Colin

Held captive? 
The younger Bivins said he felt his father was “held captive” in South Florida by the guardianship so the attorneys could liquidate real estate assets — including a New York City Upper East Side mansion — and charge more fees. Colin granted an emergency order prohibiting the senior from returning to Texas.

The jury found on July 28 that attorneys Brian M. O’Connell and Ashley N. Crispin of the Ciklin, Lubitz & O’Connell firm not only breached their fiduciary duty but committed professional negligence.

The lawsuit claimed they failed to get appraisals on two high-end New York City properties being divided among family. They were not of equal value and as a result, Julian Bivins ended up with one that was worth millions less than other.

The jury’s decision to award $16.4 million makes up the difference.

But the fight over the property is far less important to reform advocates than the fact that attorneys who carry out the wishes of professional guardians and are paid with the ward’s money were held accountable.

Oliver Bivins died at age 97 in March 2015. He ended up in the court-ordered guardianship when he visited his condominium in Palm Beach in 2011 and a social worker became concerned with his well-being, according to court documents.

 

Oliver Wilson Bivins Sr. passed away at age 97 in 2015 but his son continued to fight the professional guardian who ... read more

 

Oliver Bivins appeared to be coming to Florida for a weekend vacation, leaving his refrigerator in Texas fully stocked, plaintiff attorneys told the jury. His son said he often didn’t visit his Palm Beach condominium for years at a time.

The verdict takes a further step toward re-establishing that attorneys are supposed to represent the incapacitated ward, not the court-appointed professional guardian — a position many lawyers have argued in court to thwart families trying to rein in a fee frenzy.

“If it wasn’t for me, they would have completely depleted my dad’s estate,” said Julian Bivins, who now lives in Palm Beach. “I’ve been fighting them from the beginning to just get him back to Texas. Finally, I got him back there 35 days before he passed away.”

As with many family members who challenge the status quo in guardianship in Palm Beach County, Julian said he found himself relentlessly attacked in court. He was even sued by one of the guardians in the case, Curtis Rogers.

The biggest toll, he said, though, was his relationship with his father as Rogers told the elder Bivins that his son only wanted his money. “He turned my dad against me,” Julian Bivins said. “I could never explain to my father how he was being held for ransom, how they wouldn’t let him go.”

The Ciklin firm said it is confident it can prevail on post-trial motions in front of U.S. District Court Judge Kenneth Marra.

“We think the verdict was not in keeping with the law or the facts and, in fact, was considerably more than the plaintiff even asked for,” said Alan Ciklin, the firm’s managing partner. “We feel pretty good about our ability to have this reduced dramatically.”

Rogers, one of two professional guardians dismissed as defendants in the lawsuit, testified for more than two days at the trial. He told The Post he believes the younger Bivins financially took advantage of his father. “The verdict was a total shock to me,” he said. “I anticipated there was no way that type of verdict could be made.”

+

It may come as a shock to Judge Colin, as well.

Colin during a Feb. 3, 2016, hearing in the guardianship case bristled at the suggestion that the Ciklin Lubitz firm was not acting as a good custodian of Bivins’ assets. The senior’s son questioned why the firm had failed to turn over $472,000 from the sale of his father’s commercial property in New York City, requesting Colin refer their actions to the Florida Bar or keep them from holding onto the money.

“The Ciklin Lubitz law firm has a well-earned reputation of honesty. And this is honesty,” Colin said in court. “Not for a moment do I have any concern because their reputation is well-earned in this respect.”

Colin denied Julian Bivins’ request without hearing any evidence but ordered the firm to return about $400,000.

An attorney for Julian Bivins filed a motion to disqualify Colin because of those statements, but the judge denied it.

“We never got anything done in his court,” Julian said. “We complained about the amount of the fees and he (Colin) cut them down 25 percent, but then we had to pay their fees for them to defend those fees. So they just made it back.”

Guardianship Catch-22 
It is in this Catch-22 that families often find themselves when trying to decide whether to fight unethical actions by a professional guardian: Either way they pay, and either way the lawyers’ wallets grow fatter.

The guardianship issue is being looked at by a task force formed by Florida Supreme Court Justice Jorge Labarga. The state Legislature established the new Office of Public & Professional Guardianship as a result of lobbying by advocacy groups and others about lawyers and guardians siphoning off fees.

Attorney Greg Coleman, past president of The Florida Bar, wrote to the work group in June to alert it to “inappropriate, improper and illegal activities of a very small number of Florida attorneys” practicing in the guardianship arena.

“Unfortunately, the way guardianship statutes and rules are currently constituted allows for a window of exploitation by bad attorneys and bad guardians for their own personal monetary gain,” said Coleman, who was not associated with the Bivins guardianship or any of the relating litigation.

Coleman said everything is moving in the right direction for seniors. “The issue has the (Florida Supreme) Court’s attention, I can tell you,” he said. “It is not something that is being ignored or swept under the rug.”

Oliver Wilson Bivins Sr. was an oil man whose family were pioneers in Amarillo, Texas. He visited his Florida condo infrequently ... read more

 

Dominoes falling? 
Attorneys who represented the Bivins family — Charles D. Bavol and Ron Denman of The Bleakley Bavol law firm in Tampa — compared the trial to a climactic brawl from the movie Rocky. The Ciklin defendants knocked out their expert witness and cited attorney-client privilege in refusing to turn over crucial emails between the Ciklin lawyers and the guardians. The son’s testimony persuaded the jury, his lawyers said.

“What the defendants did in this case was wrong,” Denman told the jury. “It was legally wrong, what they did was ethically wrong, and what they did was morally wrong.”

Bavol and Denman said the verdict builds off a 2015 state court appellate finding out of Palm Beach County, ruling that the guardianship attorneys’ duty is to the incapacitated adult, not the professional guardian.

The 4th District Court of Appeal in recent years has reined in circuit courts in Palm Beach County that reform advocates say patently favor professional guardians and their attorneys.

Bavol and Denman said the verdict underscores the need for accountability from guardians and their lawyers.

“Based on this significant jury verdict and the ongoing investigative journalism in Southern Florida concerning professional guardianships, the need for reform of the guardianship system to protect Florida’s elderly citizens is again underscored,” the lawyers said in a news release.

Full Article & Source:
Jury hits lawyers with $16.4M for doing senior wrong in guardianship

Burns & Levinson Wins Important Elder Abuse Case on Appeal

Appeals Court of Massachusetts affirms key decisions of lower court; awards attorneys' fees

BOSTON, MA--(Marketwired - Nov 14, 2016) - Burns & Levinson partner Robert J. O'Regan won a major appellate victory as the conservator for Alice Migell whose nearly $5 million estate was pilfered by one of her sons. The November 2, 2016 decision by the Massachusetts Appeals Court upheld judgments from Middlesex Probate and Family Court, that returned real estate and approximate sale proceeds that the son kept after selling real estate from a trust. The decision also upheld criminal contempt convictions against the son and his wife, Andrew and Kai Sun Migell, for their transferring assets to put them out of reach to satisfy what was owed. The Appeals Court will also require the son and his wife to pay O'Regan's legal fees.

The original lawsuit was filed in 2009 after O'Regan was appointed as Alice Migell's guardian.

O'Regan recovered real estate valued in excess of $2 million in addition to approximately $400,000 that Andrew Migell kept from selling the trust's real estate. The returned property included a vacation home in Hull, a house in Wayland, and rental property. An investigation revealed, and an earlier judgment against them determined that Andrew and Kai Sun Migell worked to take for themselves virtually all of the assets that Mrs. Migell had, either in her own name or as her inheritance following the death of her husband to whom she had been married for over 40 years.

The Probate and Family Court ruled in 2013 that Andrew and Kai Sun Migell had orchestrated a "continuous, willful campaign of fraudulent, obstructionist behavior designed to separate Mrs. Migell from her assets which should have been available to cover the costs of her 24-hour care necessary for the preservation of her mental and physical well-being."

In 2013, the Probate and Family Court also ordered Andrew and Kai Sun Migell to pay $512,680 in attorneys' costs that Mrs. Migell incurred to recover her own property and to defend against their attempts to impoverish her after they "set out on a ruthless campaign to totally and utterly deprive his elderly, ailing and recently widowed mother of her entire estate." The Appeals Court had upheld this decision in 2014.

"This was one of the worst cases of elder abuse that I have seen in over 30 years of practicing law. Alice Migell was 83 years old and suffering from dementia when we went to trial to regain control of the assets she needs to live the rest of her time with dignity and comfort," said O'Regan. "I feel fortunate to have been able to serve the Court and to help Mrs. Migell recover her funds and property.

I hope this case sends a message that exploitation of the elderly and infirm will not be tolerated. Anyone who takes advantage of the most vulnerable people in society should be held accountable for the harm they cause. That is what this Appeals Court decision stands for."

Full Article & Source:
Burns & Levinson Wins Important Elder Abuse Case on Appeal

Are U.S. Probate Courts Abusing the Elderly?

When Texas Probate Judge Gladys Burwell ordered Juliette Fairley to pay $20,000 in cash for litigation costs associated with her 85 year old father’s guardianship proceedings, she allegedly violated the Texas Rules of Civil Procedure as well as Fairley’s right to due process under the U.S. Constitution. 

The daughter of Mr. Fairley, a 22 year veteran of the U.S. Air Force, didn’t have the financial means to pay the dollars that Bexar County Probate Court requested and was subsequently disqualified from being her father’s primary caregiver.

 “Guardianship is such an enormous business operation,” says Dr. Sam Sugar, a physician and founder of Americans Against Abusive Probate Guardianship (AAAPG), a nationwide advocacy group in Florida. “It’s worth trillions of dollars nationally and is enabled by the judicial system in all 50 states because there is no federal oversight or control.” 

According to court records, two of Mr. Fairley’s Texas physicians wrote letters that were submitted to the Court, stating that he did not need medical care.

Within a month, however, while under his daughter’s care in New York, cardiologist Dr. Nicholas DuBois updated Mr. Fairley’s blood pressure medication from Lisinopril to Losartan to alleviate frequent urination, pulmonologist Dr. Diego Diaz prescribed him Fluticasone for an infection that was causing congestion, Dr. Borcich prescribed the military veteran liquid Carafate to help him eat and Dr. Natasha Nayak ordered eye testing for Mr. Fairley’s glaucoma, according to petitions filed with the Court. “My father has a history of various medical conditions which require regular monitoring and treatment,” Miss Fairley stated in an affidavit dated July 8, 2016 filed with the appellate court.

Instead of holding the Texas caregivers accountable for denying the legally blind man medical treatment, Judge Burwell allegedly isolated the father from his advocate daughter by issuing an order that limits face to face visitation to a mere four hours per month and that creates a cost barrier by requiring payment of $50 an hour to visit Mr. Fairley at Trisun Care Center’s Lakeside retirement home property in San Antonio.

Trisun Care Center management did not reply to a request for comment. “It’s a profit scam when family members are court ordered to pay to visit with their loved ones,” said Michael Larsen, author of Guardianship: How Judges & Lawyers Steal Your Money (Germain Publishing, February 3, 2016). “This has already been happening in divorce cases where children are ordered to live in foster care or group homes and it’s now happening with the elderly in probate court guardianship cases.

Times are changing, however slowly. At the federal level, a report on guardianship abuse, conducted by the U.S. Government Accountability Office (GAO) for the Senate Select Committee on Aging, is expected to be released at the end of October 2016, according to Sugar. “The life of a court appointed guardianship depends on enslaving innocent and vulnerable elderly victims,” said Sugar.

Full Article & Source:

Are U.S. Probate Courts Abusing the Elderly?