Mason pushes bill inspired by RTD's 'Unguarded' investigation

By Bridget Balch

Sen. Monty Mason, D-Williamsburg
2019/BOB BROWN

The Senate Judiciary Committee is considering a bill introduced by Sen. Monty Mason, D-Williamsburg, aimed at preventing ethical conflicts from arising in guardianship cases.

Mason was prompted by “Unguarded,” a three-part Richmond Times-Dispatch investigative series published in November, which revealed that VCU Health System and other health care providers in the Richmond region had taken hundreds of low-income patients to court and asked to have their lawyer appointed the patients’ guardian, putting him in charge of the person’s medical decision-making and finances.

The attorney frequently had the patients discharged from expensive hospital beds, placed in poorly rated nursing homes, maintained a list of up to 120 wards at a time and rarely visited them, the investigation found.

“I understand there’s a shortage of guardians,” Mason said in his testimony before the committee Monday morning. “What I’m trying to get at is ... if you come to the court on behalf of the hospital, you cannot then become the guardian to the person you’re trying to get out of the hospital.”

Mason referenced a fact exposed in the Times-Dispatch investigation that, in at least 13 cases, the lawyer resigned from being the patient’s guardian unless the person was admitted to VCU Health System again, in which case he could resume his authority.

“I am not making that up,” Mason said. “You ought not to be able to do that.”

Laura Rossacher, spokeswoman for VCU Health System, said that the health system does not take a position on Mason’s measure, Senate Bill 1072. She said last month that the health system is in conversations with community partners about possible collaborations on guardianship, but would not give further details.

“It’s one of the most horrific situations that I have ever seen,” said Sen. Joe Morrissey, D-Richmond. “It was shocking in all of its aspects.”

Morrissey said that he would have proposed legislation on the issue himself, but didn’t believe there was enough time to pull it together.

“It’s not the individual’s attorney who becomes the guardian; it’s the hospital’s attorney trying to kick the person out and then becomes the guardian,” clarified Sen. John Edwards, D-Roanoke, the committee chairman, who was learning of the scenario for the first time. “That’s a conflict of interest — a clear-cut case of a conflict of interest.”

Sen. Tommy Norment, R-James City, agreed.

“I support what Senator Mason is trying to do,” Norment said. “In the practice of law, there is a very fundamental caveat and that is to avoid even the appearance of impropriety, and at a minimum, that is the threshold of this situation.”

Sen. Scott Surovell, D-Fairfax, said that he agreed with the spirit of the bill, but thought that the language was too broad and would ultimately raise costs for guardianship cases without conflict. He suggested focusing the bill to hospital-sponsored guardianship petitions.

The Office of the Executive Secretary of the Supreme Court of Virginia did not take a position on the policy proposed by the bill, but had technical concerns, including that some rural jurisdictions may have no eligible guardians for incapacitated people under the proposed law.

The committee instructed Mason to work with the Office of the Executive Secretary to refine the bill and to come back with amendments on another day.

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Mason pushes bill inspired by RTD's 'Unguarded' investigation

Hundreds of Richmond hospital patients lost their right to make medical decisions

Times-Dispatch investigation finds potential conflicts of interest between Richmond law firm and VCU Health.

By Sean Galvin

VCU Health System has taken hundreds of low-income patients to court since 2009 to strip them of their right to make medical decisions, the Richmond Times-Dispatch found in the first of a three-part series on guardianship. That led to sick, elderly, and disabled patients getting transferred out of the hospital and into poorly-rated nursing homes, often at the objection of family members.

In hundreds of cases, VCU Health asked the court to grant the patient’s guardianship rights to an attorney from ThompsonMcMullan, a Richmond law firm. When granted, the attorney is ordered to make decisions in the patients’ best interests.

But medical ethicists say those decisions have a conflict of interest if the lawyer’s law firm has a long-term arrangement with the hospital, as ThompsonMcMullan had with VCU Health. The Richmond Times-Dispatch reports that VCU paid the law firm $1.1 million since 2007. This is a contrast to other hospitals in the Richmond area, which petition courts to have attorneys take over patients’ guardianships, but forbid the same attorney from bringing the case to court and then representing the patient.

“If [the law firm is] repeatedly representing the hospital, the concern is that they’re going to be more likely to make decisions that the hospital is happy with because it will ensure they get this continuous ability to represent the hospital in other cases,” George Cohen, a professor who teaches professional responsibility at UVA Law School, told the Richmond Times-Dispatch.

Three lawyers at ThompsonMcMullan have been involved in over 90% of the guardianship cases filed by health care providers in Richmond since 2014. One of those lawyers, R. Shawn Majette, has served as guardian for 120 people at the same time— six times the caseload allowed for the state’s public guardians.

A report from the Virginia Department for Aging and Rehabilitative Services found that hospitals are financially incentivized to initiate guardianship proceedings and get poorer patients discharged. Of the cases reviewed by Times-Dispatch, over 87% of the patients appointed a guardian by a healthcare provider were deemed “very poor” by the courts.

VCU Health System officials said finances do not play any role in their decision making process. Pam Lepley, a spokesperson for VCU, said the number of patients put into guardianship is so low, it doesn’t affect the hospital’s “financials in any regard.”

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Hundreds of Richmond hospital patients lost their right to make medical decisions

Uptick in 'guardianship cases' leave Maryland patients in EDs for months

An increasing number of patients without guardians are staying in Maryland emergency departments for months, even though they don't require emergency care, according to The Capital Gazette.

The patients often lack a legal guardian and cannot care for themselves. Many have advanced dementia or a psychiatric illness. If case managers cannot find relatives to assign as guardians, the hospital must go through the county circuit court to appoint two people: one to make care decisions and the other to make financial decisions.

In the meantime, hospitals such as Glen Burnie-based Baltimore Washington Medical Center are not allowed to discharge the patients to long-term care facilities. Patients who lack guardians spend an average of 90 days at BWMC. "This is taking up beds for acute needs," said Beth Tingo, RN, BWMC's director of population health.

BWMC had 14 guardianship cases in 2017, 16 in 2018 and 19 in 2019 so far. The patients have waited a combined 3,000 days for discharge since 2017. The hospital does not know why there has been an increase in guardianship cases, Ms. Tingo said.

Annapolis, Md.-based Anne Arundel Medical Center's ED has also seen an uptick in such cases, with 18 over the past two years, according to Barbara Jacobs, RN, the hospital's chief nursing officer. The issue may be due to the increase in families moving away and leaving behind aging relatives, Ms. Jacobs said.

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Uptick in 'guardianship cases' leave Maryland patients in EDs for months

Lansing lawyer who was removed from cases pleads the Fifth during hearing

Catherine Jacobs

LANSING -- A Lansing lawyer who has been removed from several cases by judges in two counties asserted her Fifth Amendment rights repeatedly Tuesday when questioned about the circumstances surrounding the finances of a man for whom she was power of attorney and from whom she stands to inherit a reported $1.5 million.

Catherine Jacobs, a lawyer with Loomis Law Firm, refused to answer questions from lawyer Douglas A. Mielock during a hearing in Ingham County Probate Court regarding the conservatorship of Paul Hansen.

At the end of the hearing, Judge Richard Garcia appointed attorney Pat Gallagher as conservator for Hansen’s finances and revoked Jacobs’ power of attorney.

“There is some question in my mind regarding the gentleman’s capacity to issue that power of attorney,” Garcia told Jacobs’ lawyer, Philip Dwyer. “More importantly, I don’t believe your client is suitable to be a conservator.”

The hearing is the latest in a volley of motions, petitions and denials tied to Jacobs’ removal from several guardianship and conservator cases over the summer.

Between June and August, Garcia removed Jacobs from her roles as guardian and conservator in several cases and requested an investigation into Jacobs by the Attorney Grievance Commission.

The removals followed court hearings in which Garcia discovered that Jacobs had signed off on a major surgery even though her guardianship for that patient had lapsed; that she had an undisclosed agreement with Sparrow Hospital in which she was paid to petition for the guardianship of certain patients; and that Jacobs’ granddaughter and her granddaughter’s boyfriend were living in the home of a woman with memory impairments for whom Jacobs is guardian and conservator.

In August, Jacobs filed the first of at least four motions to disqualify Garcia from her cases, largely because of the judge's request to the Attorney Grievance Commission.

Garcia has denied Jacobs' requests each time, including one she filed in Hansen’s case.

On Tuesday in Clinton County, Probate Judge Lisa Sullivan weighed in on one of the cases in which Garcia denied Jacobs’ motion for disqualification. Sullivan, who was asked by the State Court Administrative Office to review the case, supported Garcia’s denial of the motion. Sullivan indicated she expects to hear similar motions in other cases.

Mielock attended the Hansen hearing Tuesday as a representative of Crisann Breed, the daughter of Ester Breed, one of three people named in Hansen’s will. Ester Breed, a cousin to Hansen, died Oct. 12.

According to an Ingham County Sheriff’s Office report, Jacobs and her daughter, Mona Darling, were longtime friends of Hansen and, at some point, Darling became Hansen’s power of attorney.

In 2015, the Ingham County Sheriff’s Office began investigating withdrawals Darling had made from some of Hansen’s accounts and Jacobs, who is listed as a recipient in Hansen’s will, took over as his power of attorney.

Darling was arraigned April 17 on a charge of embezzlement from a vulnerable adult, $20,000 or more, and bound over to circuit court in May. She is awaiting trial.

Mielock asked Jacobs in court Tuesday whether she’d ever acted as Hansen’s lawyer; whether she was a beneficiary of any of Hansen’s financial accounts or life insurance; whether she ever borrowed money from Hansen; whether she believed a conservator for Hansen would be responsible for recovering funds from her daughter, Mona Darling; whether she believed Darling took any assets from Hansen; and the extent of her involvement in at least two power of attorney documents drafted in regards to Hansen.

Jacobs responded to each question by asserting her Fifth Amendment right not to testify to avoid self-incrimination.

Jacobs declined to comment following the court hearing.

Probate court investigates Hansen relationship

Earlier in the hearing, Ingham County Probate Court Investigator Sarah Broschay told Garcia she met with Hansen at his Holt assisted living facility Monday, and she recommended Pat Gallagher be appointed Hansen’s conservator.

Broschay said Hansen is being held in a mental deficiency ward. Medical reports from 2014, included in the court record, indicate he has dementia.

“Mr. Hansen would engage in the conversation, but would often need to be reminded of my purpose for being there,” Broschay said in a report filed in probate court Tuesday. “Mr. Hansen seemed to know who Ms. Jacobs was, but did need to be reminded that she was his power of attorney.”

In her report, Broschay also voiced concerns about Jacobs’ oversight of Hansen’s assets because of Darling’s embezzlement charge and the belief that Jacobs limited Hansen’s access to family members over the past several years.

Jacobs stands to inherit about $1.5 million from Hansen's will, Broschay wrote in her report. Hansen’s will was drawn up by a U.S. Army major in 1992, according to documents contained in a police report related to Darling’s criminal case.

The police report also includes the February 2015 document naming Jacobs power of attorney. The document includes a section nominating and appointing Jacobs as guardian and/or conservator if the court orders one be appointed.

In the document, Mieke V. Weissert is named as Jacobs’ successor as power of attorney, guardian and conservator. Weissert is a lawyer at Loomis Law Firm, according to information on the firm’s website.

In court Tuesday, Dwyer said Jacobs had priority to become Hansen’s conservator since she was his power of attorney, but Garcia wasn’t in favor of the idea.

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Lansing lawyer who was removed from cases pleads the Fifth during hearing

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Judge requests investigation of Lansing lawyer, removes her from cases

Judge requests investigation of Lansing lawyer, removes her from cases

Catherine Jacobs

LANSING -- An Ingham County probate judge has asked for an investigation into a local lawyer and removed her from several cases in which she served as conservator or guardian.

The request sent to the Attorney Grievance Commission by Ingham County Probate Judge Richard Garcia stemmed in part from what Garcia called apparent conflicts of interest in lawyer Catherine Jacobs' role as guardian for several people who were incapacitated.

Jacobs, according to the Loomis Law Firm website, is an attorney who specializes in estate planning, trusts and other probate court matters. She was a shareholder at the firm, but stepped back this year as part of a planned retirement.

Police reports, court documents and transcripts from several cases involving Jacobs outline her granddaughter's extended stay at the home of a woman with dementia for whom Jacobs is guardian and conservator; a criminal charge against Jacobs' daughter for allegedly embezzling from a longtime family friend who has dementia; Jacobs' decision to sign off on a major surgery even though her guardianship for the patient had lapsed; and an agreement with Sparrow Hospital that prompted Garcia to remove Jacobs from at least four cases for what he called a conflict of interest.

Jacobs and her lawyer Donald Campbell have asked Garcia to disqualify himself from at least one of her cases because of concerns the judge expressed to the grievance commission regarding Jacobs’ actions. Garcia denied the motion, according to transcripts. Jacobs has since filed another.

“(The motion) says that I should be disqualified, this judge should be disqualified because I’m actually prejudiced against Ms. Jacobs because I told her I couldn’t trust her on this case or any other,” Garcia said at the Aug. 31 hearing on the motion. “You also left out I said I don’t think you know what you’re doing.”

A receptionist at Loomis Law Firm declined comment when initially contacted by the State Journal. Communications firm Truscott Rossman later contacted the LSJ to field questions on behalf of the law firm, Jacobs and Jacobs’ lawyer.

Campbell said Jacobs, who handled nearly a dozen conservator and guardian cases in Ingham County last year, has a “pristine record” and follows rules governing conflicts of interest “to the ‘T’.”

“The rules do permit a lawyer who has explained the nature of a conflict to an affected client to obtain a waiver and continue,” Campbell said in an email. “Any discussions with her clients are, of course, confidential and cannot be shared. “

Loomis Law Firm’s President, Ted Rozeboom, released a short statement through Truscott Rossman:
"This is an unresolved matter that involves a confidential proceeding. It is inappropriate to comment until that process is complete.”

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Judge requests investigation of Lansing lawyer, removes her from cases

ACLU sues Utah over disabled people's right to a lawyer in guardianship cases

SALT LAKE CITY — Civil rights advocates are challenging a Utah law that eliminated a requirement that disabled adults whose biological or adoptive parents petition courts to become their legal guardians have their own attorney.

The ACLU of Utah and the law firm Latham & Watkins sued the state in federal court Thursday on behalf of the Disability Law Center and two people identified as Katherine C. and Anthony M.

The law gives judges the final say on whether a potential ward needs legal representation in a guardianship proceeding. It applies only to guardianship petitions filed by biological or adoptive parents and if the potential ward’s assets are less than $20,000.

Members of the state's disability community and the Utah State Bar opposed the bill when the Legislature passed it in 2016. The law is set to expire in July 2018 unless lawmakers renew it when they convene next January.

People with disabilities face unique and serious threats to their freedom and independence when someone seeks legal guardianship over them, said Aaron Kinikini, Disability Law Center legal director.

"We want to ensure that our members have absolutely every legal protection they deserve when going through the guardianship process," he said.

Bill co-sponsor Sen. Lyle Hillyard, R-Logan, said the legislation affects him personally, both as the father of an adult child with disabilities and an attorney.

Many parents in the same circumstance have raised a child with disabilities from birth and have their best interests at heart but need guardianships to continue to help guide their child's medical, legal and financial affairs once they reach adulthood, Hillyard said.

Most of them, he said, can't afford to hire an attorney for themselves and their child.

"That just doesn't make sense to me. I think we get so anxious making sure everybody’s legal rights are protected that we actually price them out of the market," Hillyard said.

He called the law "very, very limited" because it only applies to those whose assets are less than $20,000. In addition, Hillyard said judges can stop the legal proceedings and appoint an attorney for the child if they believe one is needed.

The lawsuit, which names the state, Utah Administrative Office of the Courts and Utah Judicial Council as defendants, demands a right to a lawyer for anyone who is to be put under guardianship.

Plaintiff Katherine C. has schizophrenia and works as a junior law clerk at a Salt Lake nonprofit. She lives with her parents because of her disability, according to the lawsuit.

Anthony M. has developmental and intellectual disabilities. He works as a school custodian, and though he lives with his wife and son, he receives care and financial support from his parents, the lawsuit says.

Both have less than $20,000 in assets and have expressed concerns about losing the right to make important medical and housing decisions for themselves, should their parents gain legal guardianship over them at some time in the future, according to the ACLU.

Once granted, guardianship is rarely if ever revoked, said John Mejia, ACLU of Utah legal director.

"When facing the loss of the right to make deeply personal decisions for themselves for the rest of their lives, people with disabilities need to have unfettered access to legal assistance," he said.

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ACLU sues Utah over disabled people's right to a lawyer in guardianship cases

Few Clark County guardianship cases are in compliance with Nevada laws

By COLTON LOCHHEAD
LAS VEGAS REVIEW-JOURNAL

An internal review of guardianship cases in Clark County showed that less than half are in compliance with state laws and that most vulnerable adults are stripped of rights without an attorney.

District Court Judge Diane Steele provided an in-depth overview of the county’s guardianship caseload during a presentation to the Nevada Supreme Court commission studying guardianship. The panel has been meeting since last summer in an effort to fix the state’s troubled system. The commission was formed following a Review-Journal series highlighting the flaws and lack of oversight of county’s guardianship system that watches over thousands of at-risk adults, called wards.

Most compliance issues stemmed from family members not knowing they needed to file annual reports for their incapacitated family member, according to the report.

But the study showed that about 850 of the 3,800 active cases have not filed the required annual accountings that show how a ward’s money was distributed and spent over a 12-month period. In 975 cases, the initial inventory — which lists the assets of the ward such as real estate, vehicles and liquid assets — was also missing, the report said. Without an inventory, it’s nearly impossible for the court to know what the ward owned or how much money the estate is worth. Steele added that several cases have multiple compliance issues.

Steele said she hopes that a newly implemented, case-management system, which automatically flags cases for numerous types of compliance violations, will help bring more cases in line with state law.
The previous guardianship software did not notify the courts if the guardians failed to file accountings or inventories.

The report also showed that 85 percent of wards have no legal representation through the guardianship process. That means those wards, most of whom have already been deemed unfit to handle their own affairs, face the potential loss of rights that comes with guardianships alone and without any knowledge of the system.

The commission has bounced around the idea of recommending that all wards be given the right to an attorney, much like those facing criminal charges, but it has not made a formal decision yet.

The commission is scheduled to meet twice more, on April 22 and May 20, before making recommendations for changes to laws and court procedures to the Supreme Court.

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Few Clark County guardianship cases are in compliance with Nevada laws