Court of Appeal: Judge Erred in Quashing Subpoena for ‘Disabled’ Victim

Opinion Says Defendant Facing Felony Charges for Allegedly Kidnapping Fiancée From Facility Where She Was Held Under Temporary Guardianship Was Wrongly Blocked From Calling Her to Testify

By a MetNews Staff Writer

Div. Two of the Fourth District Court of Appeal has held that a trial judge in a criminal proceeding erred in quashing a defense subpoena relating to the victim of an alleged kidnapping, who was purportedly taken by her fiancé from a conservator’s facility after being diagnosed with schizophrenia, based on a finding that a probate court order declaring her to be “gravely disabled” was dispositive of her incompetence to testify.

Competency to testify is governed by Evidence Code §701, which provides that “[a] person is disqualified to be a witness” if she is “[i]ncapable of expressing…herself” or “of understanding the duty…to tell the truth.”

Justice Richard T. Fields authored Thursday’s opinion, joined in by Presiding Justice Manuel A. Ramirez and Justice Carol D. Codrington, noting that the “issue of whether incompetence to testify can be presumed from a grave disability finding…appears to be one of first impression.”

Pointing out that the standard applicable for finding a party to be “gravely disabled” and in need of involuntary civil commitment under the Lanterman–Petris–Short Act (the “LPS Act”), codified at Welfare & Institutions Code §5000 et seq., requires a different showing than §701, Fields opined:

“Whether a witness’s mental health disorder renders them incapable of expressing themself or understanding the duty to tell the truth must be determined by the trial court…, the answer to those questions cannot be presumed from a prior finding regarding their mental health. We therefore conclude that the trial court erred when it ruled that [the alleged victim’s] competence to testify was ‘already . . . determined’ by the fact that a probate court had found her to be gravely disabled….”

Kidnapping Charges

 Challenging the order quashing the subpoena was Alexander Esparza, who was charged in October 2024 with kidnapping his fiancée, identified in the opinion only as “L.S.,” from a Redlands-area facility run by the San Bernardino County Office of the Public Guardian. At the time she went missing from the location, L.S. was under a temporary conservatorship pursuant to the LPS Act.

After the couple was apprehended attempting to return to the U.S. from Mexico, a probate court found that L.S. was “gravely disabled as a result of mental disorder and is unable to provide for basic personal needs of food, clothing, and/or shelter.” On Oct. 11, 2024, the San Bernardino County Office of the Public Guardian was appointed as her conservator following a schizophrenia diagnosis.

In January 2025, Esparza served the conservator with a subpoena seeking L.S.’s appearance and testimony at his upcoming preliminary hearing. The office responded by filing a motion to quash, arguing that L.S.’s status as “gravely disabled” rendered her incompetent to testify as a matter of law.

San Bernardino Superior Court Judge R. Glenn Yabuno granted the motion, saying:

“[I]t is the Court’s belief that the…issue has already been determined. There has already been a finding that [L.S.] does not have the capacity to testify….I don’t believe it is a situation that has to be relitigated under 701.”

Esparza filed a petition for a writ of mandate seeking vacatur of the trial court’s order.

Other Types of Incompetence

Saying that “it is well established that other types of incompetence—to stand trial, to waive certain trial rights, to give or withhold consent to medical treatment—may not be presumed from a grave-disability finding,” Fields reasoned:

“Although those decisions do not involve the determination of competence to testify under Evidence Code section 701, we think that their holdings apply in this context with equal force….[L]ike the standards for those other types of competence, the standard for competence to testify is distinct from the standard for determining grave disability under the LPS Act….Because the two standards are different, one cannot serve as a substitute for the other.”

Citing case law that predates the 1967 enactment of the LPS Act, he commented:

“On multiple occasions, our Supreme Court has held that a mental disorder or cognitive deficiency is not, on its own, sufficient to demonstrate that a witness is incompetent to testify.”

The San Bernardino County Office of the Public Guardian asserted that any testimony L.S. might have provided at the preliminary hearing would have been irrelevant to the defendant’s kidnapping charges because, as her conservator at the time of the alleged offense, it was the only party with the authority to consent to her leaving the facility.

Material Evidence

Rejecting the characterization, Fields acknowledged that a subpoena may be properly quashed where the witness would not have contributed any material evidence but said:

“Because L.S. is the alleged victim of the charged crime, her testimony will undoubtedly contribute material evidence. If, on remand, the trial court determines that L.S. is competent to testify in the proceeding, she would be a percipient witness to the alleged crime. On a scale of materiality, it is difficult to imagine a more material witness.”

In a footnote, the jurist noted that “the trial court incorrectly referred to witness ‘capacity’ as opposed to ‘competency,’ ” but he found that the issue was properly identified as being governed by §701.

He declared:

“Let a writ of mandate issue, directing the superior court to vacate its order granting the Public Guardian’s motion to quash, to enter an order denying the motion, and to determine L.S.’s competence under the standard set out in Evidence Code section 701.”

The case is Esparza v. Superior Court (People), 2026 S.O.S. 378.

Source:

Court of Appeal:
Judge Erred in Quashing Subpoena for ‘Disabled’ Victim

Kim Gregory, Acclaimed Actor and Filmmaker, Works to Take Care of His Mother

News Provided By

Boundless Media Inc.

December 27, 2022, 22:22 GMT

Kim Gregory

Making sure one’s family gets the best care can be a challenge.

LOS ANGELES, CALIFORNIA, USA, December 27, 2022 /EINPresswire.com/ -- In November, Kim Gregory’s mother (Maralyn Hough) called for help with severe hip and eye pain. The police came out and contacted Kim’s brother who had her transported to a hospital for treatment. Other than x-rays and analgesics, there was no treatment for the hip dysplasia which continued to cause Kim’s mother severe pain. They never offered any treatment for her eye pain. The hospital kept Kim’s mother for thirty days and, in that time, the hospital billed taxpayers over $88,000.00.

Kim’s mother is severely hard of hearing. Without her hearing aids, she has tremendous difficulty understanding what is being said to her. Even so, for 30 days in a row the hospital psychologist subjected her to a multi-point cognitive test.

Kim Gregory's Mother

The AMTS (Abbreviated Mental Test Score) is designed to detect cognitive impairment in a patient. It asks questions like “What is your age?” or gives instructions like “Count backwards from 20 down to 1.” Kim’s mother couldn’t hear the questions and the psychologist administering the test offered a negative report of her cognitive state.

Kim had to rush home from Los Angeles to help his mother and learned it was recommended his mother be placed in an $11,000.00 per month, 24/7 memory care facility two hours away from her home and family, but an APS (Adult Protective Services) agent was called in to visit her and check out her home environment. The agent did a full investigation and found no reason why she should not be allowed to stay in her own home.

Judge David M. Murkowski, Chief Judge Probate Court for Kent County, Michigan, appointed Kim as temporary guardian for his mother. (Case Number 08-185377-GA).

Kim Gregory's Mother Writing

Kim says, “My mother is fully aware and has requested that I draw up paperwork for me to be her power of attorney.”

Kim Gregory is working with a number of people and organizations who help educate families and get them the assistance they need in his effort to end the poor care of his mother and others:

* Michigan Statewide Advocacy Services 
https://michigansas.org/

* Michigan Long Term Care Ombudsman Program
https://mltcop.org/
 
* Emma White 
Director of Constituent Relations
Office of State Senator Winnie Brinks
https://senatedems.com/brinks/
 
* Mark E. Huizenga Senator, District 28
https://www.senatormarkhuizenga.com/
 
* Michigan Elder Justice Initiative
https://meji.org/
 
* Alzheimer’s Foundation of America
https://alzfdn.org/
 
* National Association to Stop Guardian Abuse (Great)
https://stopguardianabuse.org/
 
* Peter Falk’s Daughter
https://catherinefalkorganization.org/ 
 
* Kent County Elder Abuse Coalition
https://www.aaawm.org/kceac
 
* NCEA Team  
Department of Family Medicine 
Keck School of Medicine 
University of Southern California 
 
* Elder Law of Michigan
866-400-9164
https://www.elderlawofmi.org/
 
* Alzheimer's Association
https://www.alz.org/

To help Kim and his mom, he can be reached at:

https://linktr.ee/kimgregoryla

Aurora DeRose
Boundless Media Inc.
+1 951-870-0099
email us here

Full Article & Source:
Kim Gregory, Acclaimed Actor and Filmmaker, Works to Take Care of His Mother

Carol Burnett,Husband Nominate Key Spears Figure for Temporary Guardianship

By City News Service

LOS ANGELES (CNS) - Carol Burnett and her husband have nominated the same woman who serves as Britney Spears' personal conservator to be the temporary personal guardian of the comedian's teenage grandson -- whose mother allegedly has a history of drug abuse -- but a judge today delayed ruling on the petition until next week.

Attorney Gabrielle A. Vidal, on behalf of Burnett and the 88-year-old entertainer's spouse, Brian Miller, told Los Angeles Superior Court Judge Deborah L. Christian that Jodi Montgomery began serving as case manager for 15-year-old Dylan Hamilton-West in May, but that they would now like her to take over the temporary guardianship role in which they have served since they were first appointed on Sept. 1, 2020.

"Miss Montgomery assists (Dylan) with setting up his medical appointments and coordinates them with his school to ensure his absence is excused," Vidal wrote in the Burnett-Miller petition.

"She has conferred with his therapist and dentist. She also confers with (Dylan's) school advisers and dean about his education as well as his time away from the (Ojai) boarding school."

Lawyer Stefanie M. Bennett, appointed by the judge to represent Dylan's interests, said she would have a report prepared with her thoughts for the judge by the Nov. 8 hearing. The Burnett-Miller temporary guardianship officially expires Nov. 30, but will end sooner if Montgomery's appointment is approved before then.

Burnett did not take part in Monday's hearing because she was on location with another obligation, according to Vidal, but Miller appeared virtually with several other people, including Dylan's mother, Erin Hamilton, father, Tony West, and Montgomery.

Montgomery became a part of Spears' conservatorship team in September 2019 after having previously served as her care manager. The Spears conservatorship could end as soon as Nov. 12.

Montgomery has communicated with Dylan's parents and has helped facilitate communications between all of the teen's family members, according to Vidal's court papers.

In their original petition filed in August 2020, Burnett and Miller stated that throughout her adult life, and since Dylan's birth, Hamilton has suffered from severe substance abuse and addiction issues and that in the past two decades, she has been in and out of rehabilitation centers while being institutionalized a total of eight times for a minimum of 30 days each time.

Hamilton told the judge today that her attorney tried to appear virtually to voice objections on her behalf, but that he was unsuccessful. She said she believed that the other attorneys have known of her concerns for months.

"I don't understand, I'm confused," Hamilton said.

The judge said she had not seen any objections and that any that are filed will be heard Nov. 8.

Hamilton, a 53-year-old singer, is one of Burnett's three daughters from her marriage to television producer Joe Hamilton. Their oldest daughter, Carrie, died of cancer in 2002.

In July 2020, Hamilton sent Dylan and her adult son multiple text messages threatening suicide, according to the original petition, which says she was subsequently placed by the Los Angeles Police Department on a hold for "suicidality and drug use" before being released late that same month.

Full Article & Source:

Carol Burnett,Husband Nominate Key Spears Figure for Temporary Guardianship

Return disabled man to care of his husband, attorneys implore appeals court

That husband was abusive, the other side argues, urging the court to affirm Ryan Morris' removal from their Riverside County home

 

Ryan Morris, right, and husband Sean Spicer, at their wedding in 2014., Spicer became Morris’ legal guardian. (Photo courtesy probate court file)

 

By Teri Sforza

In the latest twist in a confounding legal case that pits two fundamental rights for the disabled squarely against one another, a man with the mental capacity of a first-grader is appealing a judge’s decision to strip his husband of legal guardianship and move the disabled man out of their Riverside County home.

In a brief filed with the California Fourth District Court of Appeal, attorneys for Ryan Morris are seeking to reverse the trial court ruling, arguing that his limited understanding of what it means to be married should never have been factored into the judge’s decision. The case presents a direct conflict between the hard-won right for the disabled to marry and have sex lives, just like everyone else, and their right to be protected from abuse and undue influence.

“There is a large body of case authority reflecting an extremely low level of mental capacity needed before making the decision to marry or execute a will,” says the brief, which seeks to return guardianship to Morris’ spouse, Sean Spicer. “Marriage arises out of a civil contract, but courts recognize this is a special kind of contract that does not require the same level of mental capacity of the parties as other kinds of contracts.”

The Riverside County judge — who removed Spicer, a man of regular intelligence, as legal conservator for Morris — made numerous errors of law and abused her discretion, Morris’ attorneys said. Morris’ mental capacity was not an issue properly before the court; Morris loves Spicer, wants Spicer as his legal guardian and wants to live with him; and the law “imposes a preference” for Morris’ desires, they argue in their appeal.

Attorneys for Morris’ identical twin brother, Ronald Moore of Orange County, tore into that logic in their response, filed in October.

“The trial court did not annul or set aside the marriage between Spicer and Morris, nor did the trial court modify any of the rights afforded to Morris,” they argued. “He still possesses the rights to consent or withhold consent to marriage and to control his social and sexual contacts. Hence, any claims to the contrary … are diversions from the monumental abuses inflicted on Morris by Spicer.”

Absent from Morris’ appeal was any mention of those abuses — including Spicer’s threats to send Morris back to his adoptive mother’s house, where he had been sexually abused as a child — when he misbehaved, Moore’s attorneys argued. Spicer also threatened to take off his wedding ring, end the marriage and send Morris away for emergency mental health treatment when Morris was difficult or violent. And Spicer punished Morris by restricting visits with his biological family, which desperately wanted to see him.

Spicer also continued to make their home in a Romoland trailer with his parents, despite violent episodes between Morris and Spicer’s mother, and between Morris and Spicer himself. The judge also cited an unsettling episode in which Spicer’s mother attempted to commit suicide by slitting her wrists in front of Morris.

Attorneys for twin Moore called Spicer’s behavior reprehensible. “What kind of person, let alone a spouse and conservator, would do and say such things to a young man that has the mental capacity of a young child in the range of 5 to 7 years old?” they wrote.

In the ruling that’s now contested, Riverside Superior Court Judge Sunshine Sykes said love may not be the best yardstick for decision-making. While she had no doubt that love existed between Morris and Spicer, “sometimes choices based upon love are not always choices made based upon best interest,” she wrote. “The lines between spouse and conservator have been blurred to such an extent that it is no longer in Ryan’s best interest to have Sean in the role of conservator. This is evidenced by numerous instances of abusive behavior.”

The judge appointed the Riverside public guardian as temporary conservator and moved Morris to a new home.

Constitutional violations

“The trial court’s order in this case impermissibly interfered with (Morris’) right to be married because the order required that he be removed from the home of his spouse,” says the appeal by Mark J. Andrew Flory of Brown White & Osborn.

“The court’s order also limited visitation between Ryan and his spouse to visits in a therapeutic setting only. The trial court’s order has the effect of interfering with (his) fundamental right to be married because the order forces Ryan and his spouse to live separately,” and that, they argue, violates both the United States and California constitutions.

“This Court should reverse the trial court’s order removing the limited conservator,” the appeal said.

Morris and identical twin Moore were taken into state custody shortly after birth due to their parents’ mental illness. Their grandmother fought for custody of both boys, but got only Moore, the healthy baby. Morris had so many special needs he was kept in foster care.

Morris’ foster mother adopted him over the biological family’s vehement objections, then cut off communication. The foster mother surrendered her license last year after the death of a 16-year-old at her facility.

Removed for cause

A legal response by Charles S. Krolikowski and Jason M. Caruso of Newmeyer & Dillion LLP says the appeals court should look with great skepticism on the “inaccurate factual and legal propositions” raised in the appeal.

“The trial court removed Spicer as conservator for cause,” they argued. “The trial court’s decision to remove a conservator is a matter of discretion … determined by the court on case-by-case basis.”

Spicer testified to mistreating and threatening Morris, they argued. And while Morris may say he wants Spicer as conservator now, Morris also has said he doesn’t want to be married or live with Spicer as well.

A video of Morris and Spicer’s wedding shows Morris didn’t understand he was at his own wedding, instead mistaking the ceremony for a baptism. But the judge didn’t annul the marriage because of Morris’ lack of capacity, and it didn’t modify his right to marry or spend time with anyone he wants, they said.

“There was a mountain of evidence to support the removal of Spicer,” they wrote. “This is not a close call. The decision of the trial court should be affirmed.”

Morris’ attorneys have until Dec. 14 to file their reply. The appeals court is expected to made a decision sometime next year.

 

Full Article & Source:

Return disabled man to care of his husband, attorneys implore appeals court 

 

See Also: 

Disabled man’s removal from husband into ‘temporary’ guardianship to drag on for nearly 2 years 

 

Part 1: Twins, divided: Is one man happily married or a victim of sexual abuse?

 

Part 2: Twins, divided: Confusion, concern and ‘I do’ 

 

Part 3: Twins, divided: Brothers will see each other in court 

 

Trial date set as twin challenges disabled brother’s husband for guardianship

 

Disabled man’s removal from husband into ‘temporary’ guardianship to drag on for nearly 2 years

Tug-of-war over what's best for Ryan Morris continued this week during a court hearing in Riverside Superior Court

 

Ryan Morris, right, and husband Sean Spicer, at their wedding in 2014., Spicer became Morris’ legal guardian. (Photo courtesy probate court file)

By Teri Sforza

When a judge removed Ryan Morris from the care of his husband last year — concluding that Morris doesn’t have the mental capacity to understand what a marriage is and, thus, can’t consent to being married — the county stepped in as his temporary legal guardian and moved him to a new home.

It was supposed to mark a fresh, if difficult, reset. But Morris’ attorneys appealed that decision, and, a year-and-a-half later, Morris still lacks a permanent guardian. No resolution is expected before March, and the tug-of-war over what’s best for him continues.

Should the Riverside County Public Guardian’s Office’s temporary appointment become permanent? Should the Department of Developmental Services take over?

Identical twins play on the beach in San Clemente on
Dec. 19, 2000. They were 6. Ronald Moore, right,
holds brother Ryan. (Staff Photo / Eugene Garcia )

Ryan Morris’ identical twin brother and biological family from Orange County have asked for the job, and Morris himself has expressed a desire for his husband, whose care he was removed from after “numerous instances of abusive behavior,” according to a judge — to serve as his guardian. He also has said he wants his adoptive mother, who hosted the wedding in her backyard, to share the job.

His adoptive mother and Riverside County are the subjects of a $25 million lawsuit filed by the parents of “Princess” Diane Ramirez, a disabled foster child who died in Morris’ care last year. Michelle Morris neglected to obtain emergency medical help for the girl in a timely manner, and her staff’s actions posed an immediate risk to the children placed in care at her home in Murrieta, according to an investigation by the California Department of Social Services. Michelle Morris surrendered her foster care license in the wake of Ramirez’s death.

All options are for naught, though, at least for now.

“As important and as complex as the case is, I don’t know that I can do much about it today,” said Riverside Superior Court Judge Thomas H. Cahraman during a virtual proceeding on Thursday, Oct. 15. “All those petitions have to await the Court of Appeal decision.”

Waiting

Ryan Morris, who has the intellectual ability of a young child, married Sean Spicer, a man of regular intelligence 18 years his senior, in a ceremony that the disabled man mistook for a baptism in his mom’s yard in 2014. His biological family feared he was the victim of sexual abuse and began fighting to oust Spicer as legal guardian in 2016. They won on May 17, 2019.

Morris’ court-appointed and county-funded attorneys quickly filed an appeal, saying the decision was a blow to the rights of the disabled everywhere. It was Morris’ idea to get married, not Spicer’s, they said. Morris understands what marriage is and is angry that his biological relatives are trying to separate him from the person he loves, they contend. They argue that the core of the appeal is Morris’ right as a disabled person to choose who he’s married to and who is his conservator.

Ronald Moore, left, and identical twin Ryan Morris
embrace after seeing each for the first time in 13
years at a court hearing on Ryan’s conservatorship
 in July 2015. (Photo courtesy of Monica Mukai)

This highly unusual case raises profoundly uncomfortable issues, pitting two fundamental rights squarely against one another: the hard-won right for the disabled to marry and have sex lives, just like everyone else, and their right to be protected from abuse and undue influence.

It also raises questions about the importance of blood relations. Ryan Morris and his identical twin, Ronald Moore, were separated by the state when the two were toddlers, despite the vehement objections of their biological family. The nettlesome issues were probed in a three-part series by the Southern California News Group in 2017.

Morris did not attend the virtual proceedings Thursday, but Spicer did. He was not pleased to hear that the biological family wants the public guardian removed.

“I have not observed Ryan having any issues with his current placement or current conservator,” Spicer told the judge. “She has made decisions that I have not appreciated, but that’s the nature of her job. In the big picture, I believe the public guardian is doing a good job given the situation, and anyone who claims differently probably has ulterior motives.”

Morris’ biological aunt, Monica Mukai, told the judge that Morris is living in a restricted environment without adequate access to educational and speech therapy, despite his challenges. That’s a violation of his civil and constitutional rights, she argued in court paperwork that the judge hadn’t seen and asked her to refile.

Continued delays allow law firms to rack up fees at taxpayer expense and leave Morris in limbo, she said after the proceedings.

“A temporary conservatorship is supposed to be 30 to 60 days. This will take it to nearly two years. It’s not an abuse of the law. It’s lawlessness.”

 

Full Article & Source:

Disabled man’s removal from husband into ‘temporary’ guardianship to drag on for nearly 2 years

Emergency situation calls for temporary guardianship

By Sandra Reed

Evelyn, who lives one hundred miles away, visits her mother, Marie, who suffers from dementia, and finds she is in a seriously weakened state from diarrhea and dehydration. She contacts sister, Jane, who lives a similar distance from their mother, to inform her. Upon further investigation, Evelyn discovers that her brother, Ralph, has been mixing a box of X-Lax into their mother’s food over the past three weeks. Ralph, who is in debt, is apparently attempting to rush his inheritance of one-third of the family ranch. What can Evelyn do to protect her mother?

Emergency situations, such as the one in the hypothetical situation, call for the remedy of a temporary guardianship. The existence of financial exploitation by a relative, friend or caregiver represents another example in which a temporary guardianship is appropriate.

Evelyn should immediately contact a lawyer who can file an application to establish a temporary guardianship for her mother. Applications for temporary guardianship take precedence over any other matter that the court must hear except other matters of a similar nature. Therefore, Evelyn can count on quick results.

If the temporary guardianship is granted, it will be automatically terminated at the end of 60 days, unless it is contested. If contested, the court will have the authority to extend the temporary guardianship until the contested issues are resolved in court.

The applicant must give Marie notice that the guardianship is being filed. Although it is not necessary to give Ralph notice, Evelyn realizes that, as a practical matter, Ralph will undoubtedly learn of the filing. Therefore, she anticipates he will contest it.

Evelyn’s elder sister, Jane, who has always thought her judgment was superior to her sister’s, insists they be named as co-guardians. The lawyer explains that Texas does not allow co-guardians to be appointed. Jane eventually consents to Evelyn’s filing as proposed guardian.

A physician’s statement of incapacity that would be required for a permanent guardianship is not necessary for the temporary. At the hearing, Evelyn must show substantial evidence that Marie is incapacitated and that the circumstances present probable cause to appoint a temporary guardian.

Full Article & Source:
Emergency situation calls for temporary guardianship

Cop Becomes Legal Guardian of 83-Year-Old With Dementia

A Kentucky cop said it was all part of the job when he took legal guardianship of an elderly man with dementia in his neighborhood.

"It doesn’t take any effort to care," said Sgt. Jon Sterling of the Erlanger Police Department. "Once Norm started down the road of not being able to take care of himself, it was the only logical step. You know, how could I not?"

The police officer of more than 20 years said he met Norm about four years ago, when the Korean War vet called cops to report some suspicious activity in his area.

"[Norm] lives alone and he lives in an area of the city that has pretty heavy traffic," Sterling told InsideEdition.com. “He looks after his neighbors.”

In the following years, Sterling said he often ran into Norm around town.

"Whenever I would see him, we would just stop and talk," he said. "He’s a very smart person. He has a very interesting view on history and politics. I just loved talking to him."

Last week, Sterling said he noticed social workers at Norm’s home, and dropped by to make sure he was OK. Norm had recently turned 83.

“He had lost a bunch of weight. It had been so long since I had seen him,” Sterling said. “His hair was as long as his beard. He really looked like he wasn’t taking care of himself. He literally had gotten smaller.”

The social workers determined he had a case of early on-set dementia, and Sterling added that Norm’s eccentric personality may have compounded the diagnosis.

"He’s got a way about him that I really liked because I’m a little eccentric myself," Sterling said. "So that’s kind of one of the ways we bonded."

Realizing that Norm had no close family members, he decided to assume guardianship of the senior. His wife, a nurse, and son were immediately on board with his decision.

Sterling was able to check his friend into the hospital, where he was given IV fluids, fed, and cleaned up.

"The short time he was in the hospital, he got his balance back; he got his color back," Sterling said. "He got the fullness in his face. It really helped."

With his temporary guardianship, Sterling was able to access his health and bank records, and figure out what further care he needed, including a retirement home.

Full Article, Video, and Source:
Cop Becomes Legal Guardian of 83-Year-Old With Dementia

Elderly millionaire’s estate battle takes a surprising turn

Hattie Poole

By Gilbert Garcia

There are few cases in our civil-court system more painful than those that deal with conflicts over guardianship of the elderly.

They bitterly divide families — turning siblings against each other, and children against parents. They also force proud, accomplished people to have their basic mental competence tested, dissected and discussed.

San Antonio recently experienced a prominent case of this kind, when the heirs of billionaire car dealer Tom Benson, owner of the New Orleans Saints and Pelicans, filed suit to remove him as trustee of a Texas trust fund, arguing that Benson was not competent to manage his own affairs.

Two months ago, I wrote about a similarly bitter San Antonio probate case, this one involving Hattie Poole, a widely admired 85-year-old millionaire and philanthropist whose late husband, Duane, passed away in 2012.

Poole, whose estate has been estimated to be at least $3 million, subsequently established a relationship with Ben Marek, a man 30 years her junior, and her three sons began to worry that Poole was being manipulated by Marek into burning through her estate.

Last December, Poole attempted to transfer $225,000 to Marek, and Frost Bank responded by freezing her account. She also transferred property to Marek and put him on the payroll at Industrial Communications, the company she inherited from her husband, despite allegations that he does not actually work there.

The case was referred to Adult Protective Services and a neuropsychological exam determined that Poole suffers from mild but substantial memory and executive function loss.

A common denominator in the Benson and Poole cases has been the involvement of Bexar County Probate Court Judge Tom Rickhoff, who placed Poole under the temporary guardianship of her son, Jeff.

Poole’s biggest source of frustration with Rickhoff was that he denied her the opportunity to pick her own attorney. She believed the decision rendered her powerless: not only denied control of her financial affairs but also forced to pay for a court-appointed attorney she believed did not represent her interests.

Rickhoff declined to be interviewed for this column.

Barry Snell, the attorney Poole selected, filed a motion in Rickhoff’s court on February 13, requesting that Snell be allowed to represent Poole. The motion argued that Poole is “mentally competent and has capacity to contract,” and that denying her the right to the counsel of her choice amounted to a violation of the due-process clause of the 14th Amendment.

In the two months since I wrote that column, Poole’s guardianship status has remained in limbo, but there has been a surprising development with her case.

During an Internet search, Poole noticed that local attorney Phil Ross has represented several elderly people in probate disputes, so she enlisted Ross to join Snell on her team. According to Poole’s daughter Laura, who has backed her mother in her legal fight, Snell subsequently decided to withdraw from the case.

It would be an understatement to say that Ross and Rickhoff have some history together.

They’ve often butted heads in the courtroom, and last year Ross decided to challenge Rickhoff in the Republican Primary. In March 2014, Rickhoff filed a complaint against Ross with the Texas Ethics Commission, alleging that Ross failed to include a disclosure statement on political advertising. TEC rejected the complaint, but Rickhoff won the primary with more than 70 percent of the vote.

On January 22 of this year, Rickhoff filed a grievance against Ross with the State Bar of Texas, stating that Ross had forced him to endure “the most bizarre behavior I’ve ever encountered from one lawyer.” (A decision is still pending from the State Bar.)

On July 27, Ross — acting as Poole’s attorney — filed a motion requesting that Rickhoff recuse himself from Poole’s case. Any further guardianship decisions must wait until the recusal issue is resolved.

Ross also contends that changes in the Texas Estates Code enacted on June 19 will protect Poole’s right to hire her own attorney. The law authorizes wards in guardianship cases to “petition the court and retain counsel of the ward’s choice.”

Two months ago, Poole told me: “I feel as though I’ve been pushed in a corner.” It’s a sentence that could be uttered by countless elderly people in estate cases.

Full Article & Source:
Elderly millionaire’s estate battle takes a surprising turn

Illinois Representative David Harris Introduces Three Bills in the 2015 Legislative Session

During the 2014 legislative session, Representative David Harris (R, 53rd District), working with NASGA Director Sylvia Rudek, introduced HB5573, a bill aimed to empower and strengthen Power of Attorney and advance directives.

Despite overwhelming support NASGA received in feedback from victims, families, and guardianship stakeholders, sadly HB5573 was stalled in the Rules Committee.

Representative David Harris

Representative Harris’ commitment to protect the elderly and disabled citizens of Illinois was not dissuaded.

This year, Representative Harris, again conferring with Sylvia Rudek, has introduced three bills to the 2015 legislative session:

 HB2504 concerns the length of temporary guardianship and provides that an extension of the temporary guardianship may be granted, if specific conditions are met, for no longer than 90 days from the date of original appointment.

HB2505 provides that a temporary guardian shall have limited powers and duties (instead of “all the powers and duties”) of a guardian of the person or estate which are enumerated by court order.

HB2506 provides that unless a guardian of the person or a disabled adult is specifically authorized by court order, the guardian shall not restrict the personal rights of the ward, including, but not limited to, the right to receive visitors, telephone calls, and personal mail.  Hearings are scheduled to discuss and debate the bills.

NASGA enthusiastically supports Senator Harris’ efforts and very much appreciates his concern and legislative action on behalf of the elderly and disabled of Illinois and victims of unlawful and abusive guardianships.

READ the Full Text of HB2504

READ the Full Text of HB2505

READ the Full Text of HB2506

TRACK All Bills From Representative Harris

See Also:
NASGA on HB5573

NASGA Members in Legislative Action