Editorial: SeniorCare Case Cries Out for State Investigation

OK, Essex County Superior Court Judge Mary Anne Sahagian has now awarded guardianship of 84-year-old Joseph Judd to his grandson, Vito Loiacono, as Loiacono had been seeking all along.

The judge told SeniorCare attorney Larry Varn of Pierce Atwood in Boston that the Gloucester-based nonprofit care service does not have "a horse in this race."

And Donnalee Leonardo, a court-appointed attorney who has looked into Judd's mental and physical state, found that the man who had to be rushed to Addison Gilbert Hospital in June 2010 with a near fatal glucose count while under SeniorCare's supervision is now "close to home, with lots more contact with his family now than before."

Indeed, she also found that Judd, who suffers from dimentia, among other ailments, but continues to recover from his brush with death at Seacoast Rehabilitation Center "would have wanted Vito Loiacono to be his guardian."

So why, pray tell, is SeniorCare continuing to actively contest Loiacono's request to become Judd's conservator — essentially, someone who would managed his grandfather's assets?

And why has SeniorCare declined to turn over Judd's health-care records — even to his own family?

Perhaps a better question in each of those cases is: How does SeniorCare have the right to stonewall Loiacono and other family members as it has.

Judd's family — and the community at large — deserve to know the truth about SeniorCare's care, and to have confidence in it. Right now, they can't — and only a thorough state probe can lift that cloud.

Full Editorial and Source:
Editorial: SeniorCare Case Cries Out for State Investigation

Disbarred Atty Gets Two Years for Fraud

Steven P. Gartenberg, a disbarred lawyer who once had an office in Brentwood, was sentenced to two years in federal prison Friday for stealing more more than $300,000 from clients.

Gartenberg pleaded guilty in June to two counts of mail fraud. He admitted keeping more than $100,000 from a woman's estate that was supposed to go to the Kirkwood United Methodist Church, the Alzheimer's Association and three individuals and making more than $200,000 in unauthorized withdrawals from the bank account of a mentally disabled woman who was under his guardianship.

He also took money from two other clients, and later repaid them from a dead man's estate.

On Friday, Gartenberg apologized, saying, "This isn't like me. I feel much remorse for what I've done."

Under federal sentencing guidelines, Gartenberg faced 27 to 33 months in prison.

Ultimately, U.S. District Judge Rod Sippel sentenced Gartenberg to two years in prison and ordered him to repay $267,000. Most of that money will go to the Bar Plan Surety and Fidelity Company, professional liability coverage for lawyers, which paid for the guardianship victim. He also repaid a small amount himself, Margulis said.

Full Article and Source:
Disbarred Attorney Gets Two Years for Fraud

Kathleen's Demise, A Cautionary Tale

There’s much to learn about BC’s laws and eldercare system from the last years of Kathleen Palamarek’s life in a local nursing home—especially from the battles that were fought in her name between her children, care providers and the Vancouver Island Health Authority.

During Lois Sampson née Palamarek’s five-year struggle to help get her mother out of the nursing home, Kathleen became an icon to local seniors advocates. That’s why the Saanich Peninsula Health Association, Vancouver Island Association of Family Councils, Old Age Pensioners Organization local, and others have been blitzing politicians, media and public agencies with requests for an inquiry.

Full Article and Source:
Kathleen's Demise, A Cautionary Tale

See Also:
SeniorsAtRisk

'Pulling the Plug'

It is mind blogging how some people are so ready to suggest the plug should be pulled on others. What if the pluggee doesn’t want the plug pulled? Pull it anyway?

There you go. One more down. Who else can we get rid of?

The thought brings to mind a picture of an eager face with a vile grin and some drool running down the chin for good measure. “Oh look, that little old lady in Aisle 4 doesn’t have quality of life. I wouldn’t want to live that way, walking with a limp. Let’s get her. Boy, this legal murder is empowering. Look at me! I have power over life and death. Why didn’t we start doing this before now? Oh, good another one back by the frozen foods. Such a good day for plug pulling.”

Think it can’t ever happen?

Who would have thought we would ever be where we are today? Who would have thought we would be so ready to say that helpless people “aren’t in there”, and thus believe it is simply okay to starve and dehydrate them to death? Who would have thought, but that is where society has arrived at. Society is killing off the weakest without thought to those who have fallen victim to illness, injury, disability or age. It is outrageous at how cold and cruel our society has become.

It is easy to say someone has no hope, when no therapy or attempt has been made to help the person get better. It’s causing the problem and then having the problem be our supportive argument as to why not to take any positive actions.

[P]eople can’t always get better without the tools and treatment being made available to them.

They can’t wheel themselves down the hallway, if they don’t have a wheel chair to wheel.

They can’t do physical therapy if none is offered, nor anyone to tell them how.

They can’t take the necessary medications to cure their illness, if no medication is made available.

They can’t eat or drink if no food or water is provided.

They can’t look out the window if there is no window to look out of.

Simply put, people can’t get better if they aren’t allowed to get better, because all things that will (or might) make them better is denied them.

Full Article and Source:
Pulling the Plug

A Heartbreaking Story of Elder Abuse

Until relatively recently, I was unaware of how rampant elder abuse is within the legal court system. It was not until my good friend started to share her story with me that my eyes were opened to something far more prevalent than I was cognizant of; at least on a conscious level.

I have been privileged to know Diane for over five years. During that span, she has never been anything but helpful, loving and compassionate to everyone. Doing what I do for a living generally makes me able to be a pretty good judge of character. Ironically, it is a judge and his decisions that prompted me to write this article. The choices and attitude he has expressed have been protected by legal statutes. While they might be legal, they are far from moral, ethical or compassionate.

This all began approximately two and a half years ago. Diane's mother had given her power of attorney and named her the healthcare proxy. Like many families, there were disagreements with the siblings. Diane was being told that her brother and sister wanted to sell their mother's home and place her in a nursing home. While this elderly woman, Dorothy, had some early dementia and knee problems, she was still a vibrant, cognizant person. She had no interest in being displaced so that those two could have her money. Diane's family suggested she file for legal guardianship to protect her home and to protect her mother's life as well. It seemed to make an abundance of sense.

To tell the events of what unfolded quickly is really an injustice to the elder abuse that has incurred since. The siblings contested the petition for guardianship. Instead of reaching a mediated agreement, the judge listening to the case decided he would be better at making decisions for everyone. He assigned a law guardian and a healthcare manager. It appears these three have worked together before. Diane was immediately removed from what her mother wanted; to have her take care of her needs if there was any reason for it. As it was, Dorothy would spend many weekends at Diane's house. It must be noted that Diane works from home and took care of her father in his last years. It would give Dorothy a change of scenery and much appreciated love and companionship. All of that was about to change.

Full Article and Source:
A Heartbreaking Story of Elder Abuse

See Also:
NASGA: Dorothy Wilson, NY Victim

Elder Rights and the Older Americans Act

Statement by Kathy Greenlee
Assistant Secretary, Administration on Aging
U.S. Department of Health and Human Services (HHS)
on Elder Rights and the Older Americans Act
before Special Committee on Aging United States Senate
Tuesday August 23, 2011
Thank you, Senator Blumenthal, for the opportunity to testify at this important hearing on elder justice. I appreciate the opportunity to share with you the Administration on Aging’s (AoA) commitment to this important issue and the role of the Older Americans Act (OAA) in helping to protect and serve victims of abuse, neglect, and exploitation. As a Federal advocate for older Americans and their concerns, AoA is dedicated to protecting the rights of older people and preventing their abuse, neglect, and exploitation.

Elder abuse is a substantial global public health and human rights problem. The World Health Organization has declared that elder abuse is a violation of one the most basic and fundamental human rights: to be safe and free of violence. In a recent nationally representative study, one in ten older Americans reported being abused or neglected in the past year, and that many of them experienced it in multiple forms.

For nearly forty years, AoA has provided continual Federal leadership in strengthening the elder justice programming designed to prevent and address elder abuse and these consequences through the OAA.

•The Long-Term Care Ombudsman Program was established in 1972 to represent the rights and advocate on behalf of older residents living in nursing homes, assisted living, and other residential settings.
•In 1987, a new objective to protect elderly from abuse, neglect, and exploitation was added to Title I of the Act. A separate authorization of funds for elderly abuse prevention services was also created under Title III Part G. This had previously been allowed, but appropriation authority not reserved.
•The National Center on Elder Abuse (NCEA) was created in 1988 as an information clearinghouse on abuse, neglect, and exploitation, including best practices in prevention and treatment, serving as a repository of research, and conducting demonstration projects to promote effective and coordinated responses to elder abuse, neglect, and exploitation.
•In 1992, the Title VII Elder Abuse, Neglect, and Exploitation Program was established to provide funding to support State and community-based elder justice networks that protect vulnerable seniors and provide them with critical information, and the NCEA received a permanent home in Title II.
•The 2006 Older Americans Act amendments added provisions in Title II for the assistant secretary on aging to designate a person for elder abuse prevention and services with the responsibility for development of plans for a coordinated, national elder justice system. In addition, Title VII’s “Elder Abuse, Neglect, and Exploitation Program” was renamed “Vulnerable Elder Rights Protection Services”, and broadened the authority for States to carry out a range of elder justice activities, such as financial literacy and elder shelters, and to initiate multidisciplinary elder justice activities.
•Most recently, the Elder Justice Act was passed and signed into law in 2010. The Elder Justice Act provides authority for additional attention in this area, including highlighting critical issues through citizen participatory advisory councils; enhancing APS programs and data; and improving the quality of care in nursing facilities through enhancements to the Long-Term Care Ombudsman Program, establishing a system to report crimes in nursing homes, and assisting States to implement criminal background check programs for employees with direct access to patients.

Full Testimony and Source:
Elder Rights and the Older Americans Act

See Also:
Senator Blumenthal's First Field Hearing as Senator

Ohio: Medicaid Won't be Used to Pay Guardians for Developmentally Disabled!

The Ohio Department of Developmental Disabilities stopped seeking Medicaid funding to pay for protective services for thousands of adults after state auditors questioned the agency’s accounting for more than $1.3 million in program costs.

To avoid any interruption in services for the mentally retarded and disabled, Director John Martin said he is using non-Medicaid tax dollars to cover the expense.

“These are vital services,” he said.

An audit released by the Department of Job and Family Services questions the 2009 and 2010 expenditures but does not seek repayment of the funds paid to Advocacy & Protective Services Inc.

“DODD did not provide adequate documentation to demonstrate the expenditures, used as a basis for claiming Medicaid reimbursement, were for actual and allowable services provided by APSI,” auditors wrote.

The Department of Job and Family Services oversees Medicaid, the health-care program for the poor and disabled funded through state and federal tax dollars. Department spokesman Benjamin Johnson said DODD will have an opportunity to submit a more-detailed accounting before any decision about repayment is made.

Advocacy & Protective Services (APSI) is a private, nonprofit organization based in Columbus that is under contract with the developmental-disabilities agency to serve as a court-appointed legal guardian and trustee for about 4,800 Ohioans with mental retardation or other developmental disabilities.

Auditors are concerned about Medicaid funds paid to the department after it sought reimbursement of APSI administrative expenses. Specifically, auditors noted that invoices showed only total costs paid APSI and did not include a breakdown for specific services.

Medicaid, auditors previously noted, will reimburse for administrative costs, within limits, if a detailed accounting is provided to show the expenditures were permissible. Such documentation must include a description of the services performed, hours and date worked, and a signature of an authorizing agent. In addition, 90 percent of the expenditures must go to direct services.

Martin said APSI is paid a set fee to cover administrative expenses and there are no itemized invoices.

“DODD provided documentation of payroll and operation expenses that we believe demonstrate the costs were necessary and reasonable to provide required protective services to individuals with developmental disabilities,” the developmental-disabilities agency wrote in a response included in the audit.

The department also noted that APSI guardians are paid an average of $17.19 an hour, and the cost per individual served is about $1,079 a year.

“We feel confident that DODD is getting a good value for this critical service.”

Source:
Medicaid Won't be Used to Pay Guardians for Developmentally Disabled

See Also:
Medicaid Dispute: Ohio State Audit Faults APSI (Advocacy & Protective Services, Inc.) With Spending of $1.3 mil

Lawyer Acting as Guardian Disbarred for Helping Ward Will $5M Estate to His Wife

Despite a hitherto unblemished disciplinary record over a 30-year legal career, a New York attorney appointed as a guardian to an incapacitated person has been disbarred for helping her prepare a will in favor of his wife.

John M. Aversa was appointed in July 2009, and the next month his ward got a settlement of over $5 million in a personal injury suit, recounts the Fourth Judicial Department of the New York Supreme Court Appellate Division in an opinion earlier this month.

A court told Aversa to retain independent counsel to help the woman prepare a will. Instead he prepared the will himself without bringing in independent counsel or evaluating the woman's testimentary capacity. It named Aversa as the executor and his wife, under her maiden name, as the beneficiary. Two members of his immediate family were witnesses.

Besides committing what the court described as serious misconduct for personal gain, Aversa also "demonstrated a shocking lack of candor in this proceeding," the court wrote, "by belatedly presenting to the Grievance Committee a document designed to conceal his misconduct and by providing explanations for his conduct that lack credibility."

Aversa had claimed that the will was drafted in an effort to distribute his ward's assets to charity, as she wished, via his wife. He presented an unsigned, undated will addendum giving instructions to that effect after he was asked to resign as guardian, the opinion says.

Source:
Lawyer Acting as Guardian Disbarred for Helping Ward Will $5M Estate to His Wife

Read the Supreme Court Opinion

TX Lawyer Charged for Paying Judge for Ruling

An Austin attorney has been federally indicted concerning his alleged role in a Texas court corruption scheme in which a former state district judge and two other lawyers have already taken pleas.

Marc Garrett Rosenthal, 49, is accused in a 13-count indictment unsealed yesterday of paying ex-Judge Abel Corral Limas for favorable rulings, as well as bribing witnesses, conspiring to file state and federal personal injury cases relying on false testimony and directing others to pay nonlawyers for referrals of cases to his firm, according to the Associated Press.

Rosenthal faces charges of conspiracy to violate the Racketeer Influenced and Corrupt Organizations statute, witness-tampering and fraud charges, among others, reports the Brownsville Herald. (The American-Statesman provides a full rundown.)

The Herald says Rosenthal is also accused of arranging for others to manipulate the Cameron County District Court case assignment system, so that cases went to the courts they preferred.

Full Article and Source:
Another Attorney Charged in Racketeering Case Allegedly Paid Texas Judge for Ruling