Judge says care home residents in England are legally allowed visitors

Mr Justice Hayden said courts were concerned about the impact on elderly people of lockdowns. Photograph: Rosemary Roberts/Alamy Stock Photo

A senior judge has said friends and family can legally visit their loved ones in care homes, in an apparent challenge to recent government policy that has in effect banned routine visits in areas of high Covid-19 infection.

Mr Justice Hayden, vice-president of the court of protection which makes decisions for people who lack mental capacity, said courts are concerned about the impact on elderly people of lockdowns. He has circulated a memo that sets out his analysis that regulations do “permit contact with relatives” and friends and visits are “lawful”.

He was responding to guidance from the Department of Health and Social Care (DHSC) last month telling thousands of care homes in England that visiting should be stopped in areas with tier 2 and tier 3 lock down restrictions, apart from in exceptional circumstances such as the end of life.

It triggered blanket prohibitions by some councils and sparked anguish from relatives who warn a lack of contact is leading to misery and early death in some cases. Within a week, Gloucestershire county council told care homes in its area to stop visits until next spring.

With the England-wide lockdown starting on Thursday, care home providers, families and groups including Age UK and Alzheimer’s Society, have called on ministers to this time make clearer provisions for visiting. The high court judge’s comments, issued on 15 October, could boost their cause.

Hayden said exceptions in the existing regulations mean contact with residents staying in care homes is lawful for close family members and friends. He said the court of protection was concerned about “the impact the present arrangements may have on elderly people living in care homes,” citing their suffering.

Relatives and residents have become increasingly despairing at a lack of access, with some feeling their loved ones are in effect “imprisoned”. A promise by the care minister Helen Whately on 13 October to start testing relatives to allow them to visit has not been fulfilled.

Whately had told parliament that selected close relatives could be treated like key workers and allowed into care homes saying: “I am planning for us to launch a pilot on that shortly.” But no pilot has been launched. DHSC officials say they are “considering plans” with and promise further details “in due course”. Rapid turnaround saliva testing has been mooted by NHS test and trace as one way of allowing more care home visits and is being trialled in Liverpool, where the mayor, Joe Anderson, on Tuesday said it would be used in care homes.

“We can no longer stand by and watch the erosion of people’s human rights and the impact of isolation through the effective blanket bans on visiting in care homes,” said a statement co-ordinated by the National Care Forum ahead of MPs voting on Wednesday about new lockdown restrictions. NCF represents charitable care home providers and its call is backed by 60 care organisations, health charities and relatives groups.

“We know that isolation caused by restrictions on visits from loved ones is intrinsically harmful and we have heard over and again the extreme anguish that this is causing. After eight months of visitor restrictions – we cannot continue like this – there is simply not enough time for many of those living in care homes today to watch and wait.”

Blocks on care home visits were introduced in spring to reduce the spread of the virus into settings with highly vulnerable populations. More than 18,000 people have so far died from confirmed or suspected Covid-19 in UK care homes.

A spokesperson for the DHSC said: “We know limiting visits in care homes has been incredibly difficult for many families, but our first priority remains the prevention of infections to protect the lives of vulnerable residents.”

Some care residents have been in isolation since March triggering rising concern at the impact on their mental and physical health.

John’s Campaign, which lobbies for greater involvement of family and friends in care, has launched a legal claim over the government’s visiting policy which details harrowing cases of separation, according to filings seen by the Guardian.

Full Article & Source:

Judge says care home residents in England are legally allowed visitors

Judge rules Hawaiian princess unfit to manage $215m trust

A Honolulu judge ruled this week that “Hawaii’s last princess” doesn’t have sufficient mental capacity to manage her $215m trust – the latest twist in a contentious legal battle surrounding 92-year-old Abigail Kawānanakoa and her fortune, and which has raised allegations of possible abuse.

Kawānanakoa is regarded by many Native Hawaiians as a princess because she is a descendent of the royal family that ruled the islands before the overthrow of the Hawaiian Kingdom in 1893. She’s also the great-granddaughter of sugar plantation owner James Campbell, a businessman who was one of Hawaii’s largest landowners and through whom Kawānanakoa has inherited her sizable estate, which includes ample real estate and cash assets.

Kawānanakoa has led a mostly private and luxurious life, donating to her favorite charities, and breeding American Quarter Horses, but also had a reputation for quietly paying people’s bills. For years, she paid the electricity bill at Honolulu’s Iolani Palace (the royal residence that’s since become a museum) and would chip in when people came to her with financial problems. In 2001, the heiress also established a $100m trust aimed at supporting Native Hawaiian language, culture, art, education health and housing.

“At the moment, she is a benefactor for the Hawaiian people,” said Lilikalā Kame’eleihiwa, director and professor at the University of Hawaii’s Center for Hawaiian Studies and a board member for Kawānanakoa’s trust. “I understand she paid some people’s student tuition or their medical bills – she even paid people’s mortgages to keep them from becoming homeless.”

But trouble began last year when Kawānanakoa had a stroke. Soon after, her longtime former attorney Jim Wright said she was no longer able to serve as trustee and stepped in. But then Kawānanakoa declared she was fine and took a series of hasty steps that seemed out of character. She fired Wright, married her girlfriend of two decades, Veronica Gail Worth, and hired another lawyer. Before a court hearing on Monday, her lawyer said she wanted to remove Wright and appoint new trustees, including her wife, Worth.

In a nod to Kawānanakoa’s wishes, the judge Monday removed Wright as trustee, but appointed First Hawaiian Bank in his place. He said that he believed Kawānanakoa was able to decide that she wanted a trustee replaced, but that it was more complicated to appoint someone new, and that he didn’t find her capable of managing her financial assets, according to Kawānanakoa’s attorney, Michael Lilly.

“I think it’s a great decision by the judge,” said Kame’eleihiwa. Kame’eleihiwa said that the bank now has the choice in keeping the existing board members, some of whom are prominent Native Hawaiians, or appointing new ones. But Kame’eleihiwa added that she still had concern for Kawānanakoa, who had seemed increasingly isolated after her stroke.

In court filings, Wright, the former attorney, alleged that Worth physically abused Kawānanakoa. Domestic workers who helped Kawānakoa supported the claims, alleging that they had seen abuse occur and witnessed Worth pressuring Kawānanakoa to add her name on her bank account, among other things. After the employees spoke with a court-appointed psychiatrist and judge appointee as part of the legal proceedings, they claimed that they’d been fired and told to leave the southwest Oahu home that Kawānanakoa owned and had let them live in. It was retaliation, they told Hawaii News Now.

Worth has denied the allegations of abuse, and blamed the princess’s bruises on accidental stumbles into furniture. But some board and community members are still concerned, said Kame’eleihiwa.
“The first thing we were worried about was the health of Abigail,” she said. “You should not have elders in a situation where they might be abused.”

Kawānanakoa’s attorney, Michael Lilly, told the Guardian that his client was considering whether to challenge Monday’s ruling, but happy that her former lawyer had been replaced.

“We’re pleased that Mr Wright is out (as trustee),” Lilly told the Guardian. “Abigail Kawānanakoa has a loving marriage and she has been in the news against her wishes. She needs and is entitled to be left alone.”

Full Article & Source:
Judge rules Hawaiian princess unfit to manage $215m trust

California Judge Rules Wife has Legal Right to Remove Husband’s Life Support

San Francisco, CA (Law Firm Newswire) August 29, 2018 – A Los Angeles Superior Court judge recently found that a wife in California had the legal right to decide whether to end treatment for her husband who was in a permanent vegetative state.

Judge Mary Thornton House decided in her ruling that if an unresponsive individual does not have an Advance Health Care Directive, their spouse can make end-of-life decisions for them. The case concerned Juan Fernando Romero of San Gabriel Valley, California. He was found to be in a persistent vegetative state without any likelihood of recovery after sustaining serious brain damage in 2015.

“This case highlights how important it is for every adult to complete an Advance Health Care Directive. The document allows you to control your health care decisions by appointing an individual to carry out your wishes in case you become incapacitated,” said nationally known estate planning attorney Mark Gilfix. “It provides clarity for your loved ones so they can honor your preferences for end-of-life decisions. Without an Advance Health Care Directive, there is likely to be confusion, guilt and possible legal challenges for family members.”

In 2016 Ana Romero, Juan Fernando Romero’s wife, sought to disconnect his feeding tube and life support. His parents and sister filed a lawsuit against Mrs. Romero to obtain control of his end-of-life decisions from her. In order to keep Mr. Romero on life support, they asked the court to appoint Mr. Romero’s sister as the health care proxy. Mr. Romero died of natural causes at age 37 in June 2017 before the case concluded.

The family’s attorneys argued Mrs. Romero had no legal decision-making authority. The family also said removing Mr. Romero’s life support would go against his religious beliefs.

However, House ruled Mrs. Romero had the authority to make end-of-life decisions on her husband’s behalf as he had previously discussed with her the issue of not prolonging death. The judge dismissed the family’s claims that they had seen Mr. Romero show signs of consciousness. She cited expert testimony from a doctor who concluded his limited brain function meant that he would remain permanently unconscious with no chance of recovery.

“As his spouse, Ana is the presumptive health care surrogate for Juan Fernando in light of his incapacitation,” House wrote. She said his immediate family never spoke about his preferences in case of incapacity.

The judge also noted that there is ambiguity in the state law when it comes to determining who has the legal right to make decisions for an incapacitated individual. However, she ruled that Mrs. Romero fully complied with California’s Health Care Decisions Law as her husband’s surrogate.

This case and its outcome are reminiscent of the Drabick case from years ago. Attorneys responsible for a similar outcome in that matter were Myra Gerson Gilfix and Michael Gilfix.

Full Article & Source:
California Judge Rules Wife has Legal Right to Remove Husband’s Life Support

Editorial: Mayor's big-hearted bad judgment

Mayor John Tecklenburg should have known better than to loan himself without court permission $80,000 from accounts he controlled as conservator for an elderly former neighbor. Probate Judge Irvin Condon was right to remove Mr. Tecklenburg from the conservatorship after his violation of state law.

Mishandling Johnnie Wineglass’ finances showed the job should have been done by a professional. The mayor, a real estate agent by trade, said he did not know he needed court permission to loan himself the money.

“I think you meant well, but we can’t set a precedent of self-dealing,” the judge told Mr. Tecklenburg on Tuesday. Mr. Condon’s remark about “self-dealing” particularly stung Mr. Tecklenburg and could have an impact on his professional life.

The mayor agreed to become the woman’s conservator in 2008 — for free — when she started losing her memory and became unable to manage her money. He took out loans of $20,000 in 2011 and $35,000 in 2014 to benefit his wife’s gift shop, which was later sold; a third loan of $25,000 was taken out in 2016 to help him cover living expenses as he transitioned into the job of mayor. All the loans were repaid on time, with 5 percent interest, including an additional $877.22.

Mr. Tecklenburg also used $25,000 of the woman’s money to buy an Edisto Island tax sale property in 2011 and then sold it back to the original owner, yielding a $3,000 profit for her. Special conservators appointed by the court called it a risky move with the potential of leaving the woman with property that could have been difficult to convert into cash to pay her bills.

In the end, no harm was done to Ms. Wineglass’ finances. And by all accounts, Mr. Tecklenburg took on the job out of the goodness of his heart. But he should have sought legal advice about lending himself money. It was a case of big-hearted bad judgment.

In his official capacity, we expect the mayor to be more careful. Mr. Tecklenburg is the leader of the state’s largest city and plays a major role in how it brings in and spends its funds. It’s critical that the public have confidence in his judgment as well as his ability to handle money and follow the law. He will need to work hard to earn back any confidence lost as a result of this episode.

A report prepared for the judge by the special conservators recommended Mr. Tecklenburg continue to manage the woman’s money, as did two of her goddaughters. But Judge Condon was right to remove the mayor from the job. Violating the law is reason enough, even if no harm was done. Being mayor affords Mr. Tecklenburg no special consideration, and the judge would be expected to handle similar cases in the same manner.

Full Article & Source: 
Editorial: Mayor's big-hearted bad judgment

Judge rules Charleston mayor can no longer manage elderly woman's finances

Mayor John Tecklenburg (center)

Charleston County Probate Judge Irvin Condon decided Tuesday that Charleston Mayor John Tecklenburg can no longer serve as the manager of an elderly woman's finances after finding Tecklenburg made loans to himself from her funds without getting prior approval from the court, which violated state law.

The judge’s decision came after professional conservators appointed to review the details of the case recommended that Tecklenburg be allowed to continue serving as conservator for the woman, Johnnie Wineglass, who is 93. 

Condon disagreed.

"I think you meant well, but we can't set a precedent of allowing self-dealing," Condon said.

In legal terms, self-dealing is when a trustee takes advantage of their position for their own personal gain. The law says "any transaction which is affected by a conflict of interest is void unless the transaction is approved by the court after notice to interested persons and others as directed by the court."

The judge temporarily suspended Tecklenburg from handling Wineglass' funds in an order filed May 1, explaining that the details of the loans were unclear and needed to be reviewed further. The hearing Tuesday was to determine whether those financial documents showed self-dealing, and whether Tecklenburg should be removed or reinstated as conservator.

Tecklenburg took out three loans totaling $80,000 over five years. He borrowed $20,000 in 2011 and $35,000 in 2014 for his wife Sandy Tecklenburg's gift shop, Meeting Street Gallery; and one personal loan in the amount of $25,000 in 2016.

He repaid each loan in full with 5 percent interest before taking out the next loan. Tecklenburg incidentally paid about $877 more than he owed in interest.

He said in a written statement to the court that the interest rate he paid is comparable to a rate he'd pay if he had borrowed the money from a bank.

"My intent with regards to each of these loans was to supplement and grow the limited funds that I was handling for Ms. Johnnie," he said in the report submitted to Condon.

Tecklenburg also purchased a tax sale property on Edisto Island in 2011 with $25,000 of her funds and sold it back to the original owner. The transaction yielded a $3,000 profit for Wineglass.

The special conservators appointed by the court, Catherine Kennedy of Columbia and Ayesha Washington of Charleston, noted in their report that it was a risky move.

"Ms. Wineglass could have been left with real estate that might have been difficult to convert to cash to pay her bills," they wrote.

Wineglass is a former neighbor of the Tecklenburgs and is now in an assisted-living facility. She did not appear in court, but several relatives and godchildren wrote letters to the judge asking that Tecklenburg remain serving as the manager of her finances.

The special conservators, who were appointed for their expertise in probate law, agreed with the family members. Kennedy served as probate court judge in Columbia from 1987 to 1999.

"Although he violated the law, his stated intent was to benefit Ms. Wineglass, and ultimately she was repaid with substantial return exceeding bank interest," they wrote.

They also noted that Tecklenburg is not a lawyer and wasn't represented by one when taking on the conservatorship about a decade ago.

Condon offered Tecklenburg the chance to testify, but he declined.

Reached by phone hours after the hearing, Tecklenburg said the judge's decision took him by surprise.

"I thought he would follow the special conservators' advice," he said. "It was just like his mind was made up. I just respectfully disagree with his opinion."

Condon said the case was difficult for the court, but he did not think Tecklenburg had acted as a responsible conservator as he had made "risky investments" with Wineglass' funds.

"It appears Mr. John Tecklenburg meant well, and did good deeds for the protected person, Ms. Johnnie Wineglass," he said. "But one cannot do a good deed and then take advantage of your position as fiduciary. A fiduciary does not make loans to himself and family-controlled businesses without court approval, especially unsecured loans."

He also indicated that Wineglass herself wanted Tecklenburg removed from the role.

The judge cited a letter he received in January 2009 from attorney Kevin Eberle, who had been Wineglass' next door neighbor for 13 years. A month earlier, Tecklenburg was appointed temporary conservator. In the letter, Eberle said he was concerned because Wineglass had come to him, upset, and "adamant that she did not want Mr. Tecklenburg to serve."

In April 2009, four months after Condon received that letter, Tecklenburg was appointed permanent conservator for Wineglass.

Eberle said late Tuesday that at the time he raised those concerns, he did not realize Wineglass' mental state was deteriorating.

"I wish I had the benefit of hindsight," he said. "I regret that Judge Condon would not have picked up the phone and called me."

In his ruling Tuesday, Condon ordered Tecklenburg to cover all the court fees associated with the case. The judge said he would not be referring the case to another court for further prosecution. Tecklenburg has the right to appeal the decision within 10 days.

Tecklenburg said he didn't know if he would appeal. He's waiting to see a copy of the judge's written orders.

Wingate said one reason they might appeal is because the conservators did not find proof of self-dealing after reviewing the extensive financial records. A court order that suggests otherwise might have wide-ranging consequences for Tecklenburg, who is a real estate agent by trade.

"In his profession, he might have to answer questionnaires from insurers or entities he enters into contracts with (that ask) 'Have you ever had any form of violations under the law?' He might have to answer, 'Yes,' " Wingate said.

In an interview with the newspaper in May, Tecklenburg explained how he became the conservator for Wineglass in 2008.

She became a close family friend when they lived next to each other on Moultrie Street near Hampton Park. After the family moved elsewhere, Tecklenburg said he continued checking on her periodically.

On one visit, he discovered Wineglass had fallen victim to a series of telephone scams and had gone into significant debt. That's when he decided to help her sort out her finances, which he said was like a part-time job for the first few years.

He never charged Wineglass any fees for his services.

Once the house was sold and her debt paid off, she moved into a full-time care facility. The money she had left was about $50,000.

Tecklenburg said his goal was simply to grow that small fund so she could continue paying for her care.

Full Article & Source: 
Judge rules Charleston mayor can no longer manage elderly woman's finances