New Mexico Lawmakers Close Loophole in Guardianship System

 By Coleen Heild

The process of taking away someone’s liberties in New Mexico, at least temporarily, sometimes has been as simple as alleging they weren’t capable of making their own decisions and were in danger or being exploited.

A temporary guardian could be appointed by a judge without the alleged incapacitated person or their family being notified; they could be forced out of their homes, their bank accounts transferred and their property liquidated. And all this could occur before they ever appear before the judge, who would eventually evaluate the evidence and decide if, in fact, they needed a guardian.

Now, under the latest reform to the state’s adult guardianship system, the state Legislature has unanimously approved a bill to provide better protections to New Mexico’s most vulnerable citizens by tightening up the emergency process.

“Right now, it’s too loose, frankly,” said state District Judge Nancy Franchini of Albuquerque in recent legislative testimony. “We want to ensure that protected people are part of the process sooner rather than later, and are seen by a judge sooner rather than later.’

Franchini chairs a new 25-member guardianship study group that proposed the measure, which still needs the approval of Gov. Michelle Lujan Grisham.

The bill requires judges who approve a temporary guardianship to hold a hearing within 10 days to listen to the evidence. Currently, state law requires hearings to be held “as soon as possible.” But sometimes months elapse before a hearing is held.

“This is an emergency proceeding that should have a hearing very, very quickly because we’re taking somebody’s fundamental liberties away,” said state Supreme Court Justice Shannon Bacon during a hearing before the Senate Judiciary Committee earlier this month.

Another key feature of the bill: temporary guardians would be barred from liquidating the protected person’s property, or moving them out of their residences without express approval from the judge. There is no such prohibition in current law.

And families, or even a friend or neighbor, would have standing to appear at the 10-day hearing and ask the judge to modify or dissolve the temporary guardianship.

“I have heard of a guardianship that happened in this state where a person was put under a temporary guardianship and the temporary guardian never went to see the protected person. And during that time, the protected person passed away without ever seeing the guardian,” said Franchini, in recent legislative testimony. “That just can’t happen; that just can’t happen.”

Moreover, some hospitals in New Mexico have abused the process by going to court when the alleged incapacitated person “isn’t able to pay their bills,” Franchini said. “What the hospital is doing is filing for a temporary guardianship to get the person out of the hospital… so they can get money basically.”

Narrowing the scope
Lawmakers and the state’s judiciary have been overhauling the adult guardianship system since 2018, after the Journal began an ongoing investigation into the legal process that critics complained was ripe for corruption given the power granted to court-appointed guardians and conservators.

Some families of incapacitated adults contended they were barred or restricted by guardians from visiting their loved ones.

With the federal criminal fraud indictments of principals of two major guardianship firms fueling the debate, lawmakers and the judiciary adopted numerous reforms aimed at transparency, accountability, more family involvement and more oversight. But issues with temporary guardianships had not been addressed until now.

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Lawmakers Close Loophole in Guardianship System

For seniors in some care centers, loosened Covid-19 rules mean actual hugs and a respite from isolation

By Rosa Flores and Denise Royal

Click to Watch Video

Miami (CNN)Victoria Cerrone remembers the moment her parents tried to kiss through the glass window of a memory care center in South Florida.

"That broke my heart," Cerrone said.

It was three months into the Covid-19 pandemic, and senior care centers were closed to visitors.

 

Standing inside, beyond the pane of glass, her 85-year-old father, Vittorio Cerrone, wore two or three layers of clothing because he felt cold. His hands were shaking from the effects of his new dementia medication, his daughter remembered. And his eyes peered through the glass with sadness.

 

Cerrone's 82-year-old mother, Elisabeth Cerrone, had walked between some hedges and was standing as close as she could to the window that separated her from the love of her life. The temperature that day, her daughter recalled, was 95 degrees. A painful silence filled the humid air.

 

Elisabeth Cerrone waits outside her husband's memory care facility for a chance to visit through a window.

 

"I think my mom was just happy to see him and be able to get her eyes on him," Cerrone said.

 

Millions of families across the country have experienced unfathomable pain from the forced separation from their elderly loved ones due to Covid-19 lockdowns at nursing homes, assisted living facilities and long-term care centers. Some families, desperate to connect, made posters and signs and displayed them outside nursing home windows.

 

More than six months into the pandemic, a handful of states still don't allow visitors. Most states, including Florida, however, have recently eased restrictions to allow limited visitations.

 

The rule change has made for heartwarming reunions, like the one between Mark Lebenthal and his 89-year-old stepmother, Arlene Lebenthal, at Grand Villa of Delray Beach West in Palm Beach County, Florida. 

 

The visitation rules are strict. Lebenthal had to make an appointment, pass a health screening with a temperature check and dress in full personal protection equipment, or PPE -- all before a staff member escorted him to Arlene's room. 

 

"I love you," Mark said as he hugged her for the first time in months. "You look great."

 

Mark Lebenthal visits with his stepmother, Arlene Lebenthal, in person for the first time in months.

 

Arlene was sitting in her wheelchair watching TV when Mark walked in. A smile filled her face. Her silver hair was freshly styled, her make-up was done and she fashioned red reading glasses.

 

"Give me a kiss," Arlene said as she grabbed Mark's face with one hand and kissed his cheek over his face shield. She shared that while she had played bingo and participated in other activities, not being allowed to have visitors had been "tough."

 

The conversation quickly turned to Mark's father, Michael Lebenthal, who died in April. His dying wish was that his son find Arlene a comfortable senior living facility, Mark said.

 

"Make sure she is not alone," Mark remembered his father telling him before passing away. At the time, Arlene was hospitalized, recovering from a severe back injury. She never got to say goodbye to her husband of 45 years. Mark knew she couldn't go back home. 

 

"It was horrible. For a while I didn't feel anything. I felt pain but couldn't feel any emotion," Arlene said.

 

"He loved you," Mark said.

 

Until that face-to-face visit with Arlene, the Covid-19 pandemic had made it impossible for Mark to personally confirm that he had delivered on his promise. Senior care facilities in Florida shut their doors to visitors in March. 

 

"It's been challenging," said Sophia Rich, executive director of Grand Villa of Delray Beach West. "Everyone knows that Florida was hit hard by the pandemic." 

 

In Florida, more than 5,500 staff members or residents of long-term care facilities have died since the pandemic began, according to the Florida Department of Health. Nationwide, confirmed Covid-19 cases in nursing home residents has surpassed 231,000, federal data show. Of those, more than 55,800 have died.

 

In July and August, on average, "more than one nursing home resident was infected every minute, and 11 residents died every hour," a US Senate report released this month found. And despite calls for help from communities across the country, some nursing homes still lacked adequate testing capacity and suffered staff and PPE shortages, the report found.

 

"It's a real tragedy," said Dionne Polite, AARP's director for state operations for Florida. "We are not supposed to treat our older adults the way that they are being treated right now."

 

Victoria Cerrone had to wait six months to visit her father, Vittorio Cerrone, inside a memory care facility. This photo captures the lasting memory.

 

For Victoria Cerrone, the window visits with her father eventually grew too painful, she said. As she stood there, beyond the hedges, she began to see how the image of the successful businessman and world traveler that she remembered was fading away. He was losing weight, becoming agitated, depressed and confused.

 

"The lack of being able to reassure my father was the hardest thing to go through," Cerrone said. "And he definitely declined as a result of that."

 

FaceTime visits were also too confusing. "Dementia patients can't understand FaceTime. They need touch. They have to have human touch," Cerrone said.

 

Desperate to help her father, Cerrone contacted politicians at the local, state and federal levels to advocate for visitations so she and her mother could visit Vittorio in person.

 

With every month that passed, the heartbreak intensified. Vittorio and Elisabeth Cerrone didn't get to celebrate their 58th wedding anniversary, Father's Day and his birthday.

 

It would take six months for Florida to ease the visitation rules.

 

"I gave him a giant hug. I didn't let him go," Cerrone recalled of their in-person reunion. "I just told him I loved him."

 

Vittorio Cerrone closed his eyes, his daughter remembered, and cried in silence.

 

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For seniors in some care centers, loosened Covid-19 rules mean actual hugs and a respite from isolation

 

My Mom Just Wants a Hug: Families Unite to Open Up Nursing Homes

The pandemic has brought family caregivers together to lobby for change

 

By Beth Graham

Credit: Courtesy of Beth Graham

Beth Graham and her mother Betty at Betty's nursing home in Jacksonville, Fla. in 2019

I didn’t hug my mom Betty for 200 days because her nursing home in Jacksonville, Fla., was on lockdown. Before that, my brothers and I saw her virtually every single day. She suffered a debilitating stroke and was left with aphasia (a brain disorder), so she is unable to communicate and has cognitive deficits. While technology has been the solution for many, talking to her through a video screen isn’t an option for us. 

Not long after the lockdown, my mother’s facility opened up window visits. But sitting on the sidewalk on a noisy street and seeing her through a grainy window screen is more frustrating than it’s worth. My mom either closes her eyes or cries. She doesn’t understand. She misses my morning visits when I’d show up with coffee and donuts. 

And there’s no way to explain this to her. Our pleading and begging with the facility’s administrators have fallen on deaf ears. They’re just following government mandates and, I believe, they genuinely want to protect their residents from this deadly virus.

Residents of these facilities felt imprisoned. Punished. Cut off. And like my mom, they felt unloved.

On Sept. 17, the Centers for Medicare & Medicaid Services (CMS) released new guidance easing some nursing home visitation restrictions, but facilities may interpret the guidelines differently.

I’m sure you’ve seen the stories in the news and heard the outcry from families who fear that their loved ones in these locked-down facilities are declining. Family engagement, love, human touch and hugs are all important to everyone, but especially to those who may be suffering from physical and mental decline.

Caregivers for Compromise

The first few months of lockdown, I was just going about my business, griping to anyone who would listen about how cruel this process was. Residents of these facilities felt imprisoned. Punished. Cut off. And like my mom, they felt unloved. Some quit eating due to depression. Some died. It felt like my brothers and I were fighting an uphill battle. 

That’s when I stumbled upon a Facebook group called “Caregivers for Compromise – because isolation kills too!” It was started by a woman in Jacksonville who got a job as a dishwasher at her husband’s memory care facility, just so she could see him.

And thus began a groundswell of concerned, disgruntled and downright angry family members who were being kept from their loved ones. What began as a group to connect with others and share stories and commiserate, became state-by-state grassroots action chapters rallying legislators and politicians to find ways to let families reconnect with their loved ones in assisted living facilities, nursing homes and group homes. It’s a place of angry and frustrated voices, but also an idea bank where real solutions are being developed and shared. It’s social media at its best.

In Florida, a group of volunteers put together a white paper for the governor and made heart-wrenching videos to garner media attention.

Other states followed suit. Word spread through the Facebook groups that Minnesota had successfully lobbied for the Essential Family Caregiver Program which granted family members who had previously provided essential caregiving services to their loved ones access to the facilities. This became the rallying cry and buzzword for other states.

Reporters joined these groups so they could feature families in their nightly newscasts. As family members, our voices were finally being heard.

But our ultimate goal was to lift the lockdowns and allow us to see our loved ones.

PPE, Testing and Social Distancing

As a family member and an advocate, it’s a tough situation. I want to spend time with my mom but that also means allowing other people into my mom’s facility, which increases the risk of spreading COVID-19.

I’m a masker and a distancer, but how could I know if other residents’ visitors were equally as vigilant? I certainly didn’t want my mom exposed to the virus.

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I know from speaking to other families that we would all go to great lengths to be able to see our loved ones even for periodic visits. We’d get tested regularly, wear all forms of PPE, quarantine if necessary and even socially distance, which is tough because I really want to hug my mom. She doesn’t speak, so human touch is our only form of communication.

I generally hug my mom 365 days a year. I’ve only hugged her twice in the last six months.

The 51 chapters of Caregivers for Compromise continued to feed off one another. There were letter-writing campaigns to legislators. Sit-ins in parking lots of facilities. Media interviews. Tweet campaigns. Anything that could tear at the heartstrings of those in charge.

Families have learned that there is strength in numbers. And that we really are all in this together.

Even within states, there is little standardization about visitors.

Some facilities have usurped the government orders and created their own protocols, while others have gone to the extreme of barring any contact at all, even window visits.

But these family members are all about accountability. They’ve shared form letters and emails holding corporate owners and facility administrators responsible for failures in the daily care of their loved ones. It’s the true definition of grassroots. And those grassroots efforts have led to media coverage, which then prompted some states to revise their visitation policies.

Beth Graham and mom

The key message on behalf of all families is pretty much the same: there are safe ways to allow us access to our loved ones: PPE, distancing and testing. We want to keep residents and ourselves safe, too. 

Slowly, states are lifting the mandates on lockdown, but many facilities are still left grappling with the logistics of how to re-open to visitors safely. And I get that.

In August, Florida’s governor opened up access, but most facilities are still closed to visitors as corporate owners and internal staff reckon with “safe access.” 

Families have learned that there is strength in numbers. And that we really are all in this together. Keeping each other motivated and informed is the key to successfully fighting the system.

These days, my visits with my mother are very limited; I’m allowed two one-hour visits per week. I don’t like this new normal and hope we can return to our daily visits.

It’s been a long, hard fight, but one in which I was never alone. 

 

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My Mom Just Wants a Hug: Families Unite to Open Up Nursing Homes

Indiana Stage 5: Gyms, nursing homes prepare for changes

by Lauren Kostiuk

INDIANAPOLIS — State leaders announced Wednesday that Indiana will move to Stage 5 of its reopening plan for COVID-19 starting Saturday.  

Much of the focus has been on restaurants and bars returning to full capacity, but restrictions are also being lifted on nursing homes and fitness centers.  

For some, it's been months since they’ve been able to visit loved ones living at nursing facilities or retirement homes due to COVID-19 restrictions. Some places were able to allow visitors during Stage 4 while others opted to wait.  

Northridge Gracious Retirement Home has been allowing visitors with some restrictions, like temperature checks and shortened hours, from 2 to 5 p.m. 

“Oh, the hugs. I can give my son-in-law and daughter a hug when they come to my room,” said Lois Poort, one of the residents.  

Under Stage 5, nursing homes and assisted living facilities are required to provide visitation opportunities.  

Managers at Northridge said they are working with owners for the next steps but said many of the same guidelines will remain in place.  

Also, gyms and fitness centers are preparing for the changes under Stage 5. According to the state, businesses can resume normal operations.  

Credit: WTHR

 

Nursing homes and other care facilities can permit visitation again under Stage 5 of the state's reopening plan.

Many fitness centers we spoke with said they will not be changing protocols. LivRite Fitness in Fishers will still require people to wear masks, except when on cardio machines. They also must sanitize all equipment.  

“I know you can’t control it, but for us, we still want people to have peace of mind and feel that the place is safe to work out in,” said Jared Newson, LivRite manager.  

If you plan to work out after Saturday, it is best to call your gym to learn their policies.

 

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Indiana Stage 5: Gyms, nursing homes prepare for changes

Nursing Homes Given Federal Go-Ahead To Allow More Visitors

by Ina Jaffe

Larry Yarbroff visits his wife Mary at Chaparral House in Berkeley, Calif. in July. California health authorities had allowed some visits to resume, and now federal regulators are doing the same, with measures to try to block the spread of the coronavirus.

Jeff Chiu/AP

The Centers for Medicare and Medicaid Services, which regulate nursing facilities, are lifting the ban on visitors, effective immediately. CMS imposed the restriction in March in an effort to control outbreaks of the coronavirus.

Advocates for nursing home residents and family organizations have been clamoring for a repeal, noting the many residents who have suffered anxiety or depression, as well as physical or mental decline since the ban was imposed. The issue was also raised in the report of the Coronavirus Commission for Safety and Quality in Nursing Homes, which became public on Wednesday.

Now, all nursing homes can allow outdoor visits with social distancing, as a few states have recently allowed. And most nursing homes can allow indoor visits as long as there have been no new COVID-19 infections in the past 2 weeks and the infection rate in the surrounding county is no more than 10%. But CMS recommends that nursing homes limit how many visitors a resident can have at one time, as well as limiting the number of visitors that can be in the facility at once. 

A nursing facility that fails to allow visitation without a valid medical reason can suffer sanctions.

Also, nursing home residents can once again participate in social activities and communal dining, as long as there is social distancing and residents wear masks.

Since March, family members have only been allowed to visit their loved ones for so-called compassionate care. This was interpreted strictly by many nursing homes to mean end of life situations. The new guidance from CMS expands the criteria to include residents who were living with their family before admission to the nursing home and are now struggling with the change in environment, residents who need family members to provide encouragement with eating or drinking, and residents experiencing emotional distress or crying more frequently. The guidance says this should not be regarded as an exhaustive list.

The fines that the government collects for nursing home violations can now be used for facilities to buy technology that aids in family communication, as well as plastic partitions, tents, or other equipment that can help prevent transmission of the virus.

The rules do not apply only to the nursing homes. CMS states that visitors who don't follow infection prevention routines such as wearing a mask, should not be permitted to visit or should be asked to leave.

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Nursing Homes Given Federal Go-Ahead To Allow More Visitors

Nursing homes face threats of citations, penalties if they restrict visitor access without good cause

by Danielle Brown

CMS Administrator Seema Verma speaks Thursday in Washington D.C.

Providers who fail to facilitate in-person visitations “without a reasonable clinical or safety cause” could be cited and face other penalties under new guidance issued Thursday by the Centers for Medicare & Medicaid Services.

The agency updated its guidance on nursing home visitation during the COVID-19 pandemic, which creates a framework for providers to facilitate in-home visitation, and resume communal activities and dining. 

The agency stated in a memo that it believes the guidance represents reasonable ways a nursing home can facility in-person visitation and failure to do so “without adequate reason related to clinical necessity or resident safety” would constitute a potential violation. It could also lead to a citation and enforcement actions.

“No one should be forced to weather this pandemic alone — especially the most vulnerable among us — so we’re using every lever at our disposal to ensure America’s seniors in nursing homes can continue seeing loved ones in a safe way,” CMS Administrator Seema Verma wrote in an op-ed Thursday. 

Core principles 

The guidance explains that outdoor visits are preferred because it poses a lower risk of transmission due to increased space and airflow. Facilities should accommodate and support indoor visits, beyond compassionate care situations, if there have been no new cases in the last 14 days and visitors adhere to core principles. 

Providers must adhere to the “Core Principles of COVID-19 Infection Prevention” in order to conduct visits. Those principals include screening everyone who enters the facility, cleaning and disinfecting frequently touched areas often and conducting resident and staff testing. Nursing homes can restrict access to visitors who don’t adhere to the core principles. 

Nursing homes also should limit the number of visitors per resident and the number of visitors in the facility at a single moment, and limit movement within the facility. The guidance also recommends that visits can occur at facilities in areas with low or medium COVID-19 county positivity rates; while visits at facilities in areas with high rates should only occur for compassion care situations.  

The moves come a half year after the agency suspended visitor access, communal dining and all group activities in mid-March. CMS stated though the initial guidance was focused on protecting residents from COVID-19 it has since recognized that “physical separation from family and other loved ones has taken a physical and emotional toll on residents.

“CMS understands that nursing home residents derive value from the physical, emotional, and spiritual support they receive through visitation from family and friends. In light of this, CMS is revising the guidance regarding visitation in nursing homes during the COVID-19 [public health emergency,]” the agency wrote in the memo. 

Praise for nursing home commission

Vice President Mike Pence said the release of an extensive report by a national nursing home commission laid the framework for resuming in-person visits at nursing homes.

“The recommendations’ today that will lay a framework for communities to begin opening up once again — open up for in-person visitation in our nursing homes. I know it’s going to be a blessing for families across the country,” he said during a routable discussion Thursday with several commission members. 

“Setting up this commission was a great idea. It really helped guide our efforts and essentially after looking at the results of the report it validated all of the work that we’ve done,” Verma added. 

Pence also assured that the federal government “will continue to do our part to make sure that we scale testing and provide testing supplies, including point-of-care testing that makes it possible to be able to visit.”

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Nursing homes face threats of citations, penalties if they restrict visitor access without good cause

Elder Guardianship Cases Winding Their Way up to Federal Court

Mary Bush lives 20 minutes away from her 86-year-old mother in West Chester, Pa., but she’s not allowed to visit. In fact, Ms. Bush hasn’t seen her mother, Genevieve Bush, in 16 months because she was restricted from setting foot inside the Park Lane nursing home where the elderly Ms. Bush resides.

“I showed up on Jan. 27 to visit my mom and was told to leave by the administrator,” Ms. Bush told PacerMonitor. “When I called the police to report the visitation ban, I was assaulted by the officer.” Ms. Bush blames her mother’s court-appointed guardian Carol Hershey, who reportedly sent a letter stating Ms. Bush could no longer visit.

In most states, it is not uncommon for the elderly to lose their individual rights around residence, visitation, medical care, assets and property once they become a ward of the state under a court-ordered guardianship.

The younger Ms. Bush filed Bush v. Goodall on March 28, 2017, in the Eastern District of Pennsylvania after state court dismissed Ms. Bush’s petitions on two occasions.

“There’s no legal remedy in our state courts,” said Ms. Bush in a phone interview. “I want to stop Park Lane’s violations of mother’s resident rights, her rights under the nursing home reform act and my constitutional rights of association and communication with my mom.”

Ms. Bush is among a rising number of adult children of elderly parents confined to nursing homes who are seeking relief in federal court from state guardianship-related proceedings.

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Elder Guardianship Cases Winding Their Way up to Federal Court

Illinois Representative David Harris Introduces FALK~NASGA wards'/human rights visitation legislation in the 2016 Legislative Session

LEGISLATION 2016:

Illinois Representative David Harris (R) 53rd District Sponsor and Chief Co-Sponsor Representative Patricia R. Bellock (R) 47th District of Adult GUARDIANSHIP-PERSONAL RIGHTS

NASGA strongly and enthusiastically supports House Bill 4569 introduced by Rep. Harris.

Synopsis As Introduced
Amends the Probate Act of 1975. Provides that unless a guardian of the person of a disabled adult is specifically authorized by court order, the guardian may not restrict a ward's right of communication, visitation, or interaction with other persons, including the right to receive visitors, telephone calls, or personal mail. Provides that if a ward is incapacitated and unable to express consent to communication, visitation, or interaction with a person due to a physical or mental condition, then consent of the incapacitated ward may be presumed based on the incapacitated ward's prior relationship history with the person.

Provides that the court may, upon motion by the guardian and good cause shown, place restrictions on a person's ability to communicate, visit, or interact with an incapacitated ward. Effective January 1, 2017.

NASGA is grateful to Rep. David Harris, Rep. Patricia Bellock and Rep. Michael Tryon’s commitment to the FALK~NASGA wards'/human rights visitation legislation.

We applaud Rep. David Harris’ ongoing dedication and legislative actions on behalf of the elderly and disabled of Illinois, the voiceless victims of a growing number of unlawful and abusive guardianships.

Photo: Representative David Harris

Photo: Representative Patricia R. Bellock

Read the full text of House Bill 4569

See Also:
NASGA on HB5573

NASGA on HB2504, HB2505, HB2506

NASGA Press Release

NASGA Press Release: Legislation Update: The State of Illinois Passes HB2505; Members in Legislative Action

NASGA Legislative Members

Khloe Kardashian 'has zero control over who can visit Lamar Odom in LA hospital' even though his father Joe has accused the star of blocking him

Lamar Odom's father Joe was livid on Wednesday evening when he was not permitted to see his son, who is at Cedars-Sinai Medical Center in Los Angeles as he recovers from an October 13 overdose at a Nevada brothel.

The patriarch ranted to TMZ that Khloe Kardashian is to blame for blocking him at the facility, even though he had flown out from Las Vegas just to see the former NBA great, who needs a new kidney.

But a source has told DailyMail.com that the 31-year-old E! star has 'zero control over who can visit Lamar at the LA hospital' and she was not even at the facility when Joe came by. (Continue Reading & watching other video)

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Khloe Kardashian 'has zero control over who can visit Lamar Odom in LA hospital' even though his father Joe has accused the star of blocking him