It’s all about the money in probate

by  Kelley Smoot Garrett

Who makes money when a judge orders a person – usually an older woman – into professional guardianship?

Who makes money when the judge makes the discretionary, and radical, decision to revoke and not honor a ward’s perfectly executed existing legal documents including powers of attorney, trusts, property ownership that were written and signed while the ward still had mental capacity?

According to research conducted by Americans Against Abusive Probate Guardianship, 95 percent of the time existing valid, legal documents – created by the wards in case they are put under guardianship – are ignored by judges when ordering another life into their overly secret court system.

In so doing, the judge instantly transforms that guardianship case from being one of short, inexpensive, brief judicial administration, which follows the wishes of the incapacitated or deceased, into the much more lucrative, lengthy, expensive, adversarial litigation, denying the ward due process by failing to honor their legal documents. It is not uncommon for such court-sanctioned litigation to last for years, sometimes decades, as families desperately seek justice and due process for their elders, generating wealth for the court insiders.

Often, in order to receive their inheritances after the ward is dead, parties are forced by court-appointed attorneys to sign legal releases, denying heirs their right to appeal. Most AAAPG complaints in New Mexico record the use of judicially compelled “hold blameless” agreements for the court appointees before the District Court judge will agree to release inheritances to the heirs. Because the cases are overly sequestered, the public is unaware of the serious risk that guardianship creates, endangering all New Mexicans’ transference of their family assets to their chosen heirs.

Who makes money when the adult children of the ward are forced go to court to contest the judge’s decision to give complete – financial, medical, emotional, physical – power over their loved one to a stranger, denying the ward’s wishes? The insiders.

Who pays? Everyone else, including taxpayers.

Given the dire straits of New Mexico’s judicial budget it would behoove all New Mexicans to rein in the vast amounts of court time and money guardianship cases cost us all.

At a March 22 town hall meeting, panel member and retired Judge Ted Baca announced that 35 percent of the guardianship cases in the 2nd Judicial District (Bernalillo County) were “problem cases.” AAAPG statistics indicate that nationally 7 percent of the total guardianship cases are estimated to be fraudulent and thus prone to looting by insiders. The fact that New Mexico has five times the amount of problematic guardianship cases as the national average could potentially indicate that an estimated $150 million annually in New Mexico can be converted from family assets to third-party professionals who make a handsome living off the way guardianship is currently conducted here.

It also means that each of New Mexico’s 13 District Courts – which receive a single budget each year to handle criminal, civil, family and children’s courts – might do well to review the amount of time their civil divisions spend on guardianship cases.

When civil court guardianship cases become problematic, they go from judicial administration – the original intent of guardianship statutes and rules – to lengthy, time-consuming adversarial litigation.

The courts themselves could potentially solve much of their budget shortfall by ordering their judges to honor the incapacitated or deceased individuals’ wishes as expressed in their legal documents.

District Court judges must not let these cases disintegrate into what often amounts to gratuitous – and lucrative – litigation that profits only the court insiders at the complete financial, medical, emotional and physical expense of the family the court is allegedly “protecting.”

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It’s all about the money in probate

Lawmakers Advance Bill to Prevent Financial Exploitation of Seniors

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A legislative committee advanced a bill aimed at preventing the financial exploitation of seniors.

It would clarify the intent of older Mainers when opening a joint financial account.

Often times, a caretaker or family member will help control finances for the elderly.

This bill would require each owner of the joint account to answer in writing whether they intend to leave the account to the surviving party in the event of his or her death.

“They just don’t realize that when they do that any funds in those accounts become the property of the survivor no matter what their will says. And this is a very simple bill that says when you open the joint account, each party needs to say that it is my intent that upon my demise these funds belong to the survivor, which means at least they know there’s another option,” said Rep. Thomas Longstaff, (D) the bill’s sponsor.

The bill now heads to the full legislature for a vote.

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Lawmakers Advance Bill to Prevent Financial Exploitation of Seniors

Child porn suspect served as court-appointed guardian

ELYRIA — A man who was arrested Tuesday on child pornography charges has a long history of working around children, from being a former Juvenile Court magistrate to — more recently — a court-appointed guardian.

Former court magistrate James Paterson, 49, of Lorain, was charged Tuesday with receiving child pornography after FBI investigators discovered “hundreds” of sexually explicit images of children on his computer.

Paterson worked as a magistrate for Judge David Berta with the Lorain County Juvenile Court from 2007 to 2013, when he left and took a position as a guardian ad litem for the court, according to Jody Barilla, court administrator for Lorain County Domestic Relations Court.

A guardian ad litem is appointed by the court to represent children in certain domestic cases — often guardianship cases or delinquency cases where there is an issue between a child and parent.

Guardians ad litem often interview the children they’re assigned to work with, whether alone or with a parent, before making a recommendation to the court on the case, Barilla said.

To become a guardian ad litem, candidates have to go through training and a background check.

Since taking the job in February 2013, Paterson has worked with 21 children, according to Barilla. Most of his cases were delinquency cases, Barilla said, meaning that Paterson would have been working more frequently with teenagers.

At the time he was arrested Tuesday, Paterson was active as a guardian and had four open cases, Barilla said.

The arrest came as a result of at least four months of investigation during which the FBI discovered Paterson was frequenting child pornography sites and leaving comments identifying himself as a pedophile, according to a complaint filed Monday by the FBI in the U.S. District Court.

The online activity led investigators to search Paterson’s house Monday where they found a computer with hundreds of images of children from newborn to 6 years old being sexually abused, according to the FBI.

Paterson, who was home at the time, admitted to authorities to having a collection of between 500 to 1,000 sexually explicit images of children.

“Paterson admitted to posting comments online in which he self-identified himself as a pedophile and to sexually abusing children,” the complaint stated.

After his arrest, however, Paterson said he never physically abused any children.

Special Agent Kelly Liberti, a spokeswoman for the Cleveland FBI, said she couldn’t comment Friday whether the FBI is conducting an investigation into Paterson’s interactions with children during his time as a guardian ad litem.

Paterson was in federal custody Wednesday and is scheduled to have a detention hearing at 2 p.m. Monday at the U.S. District Court in Cleveland.

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Child porn suspect served as court-appointed guardian

Shades of gray complicate the battle against elder abuse

As an entertainer, Mickey Rooney loved to leave ‘em laughing. But the Hollywood legend’s final act played out more like a tragedy — marred by the financial elder abuse he divulged in testimony before Congress.

A longtime Thousand Oaks resident, Rooney died in April three years ago at age 93. Although the original teen idol made more than 300 films and reportedly was pulling down $65,000 a week during the three-year Broadway run of “Sugar Babies” in the early 1980s, his net worth at his death totaled $18,000.

“If elder abuse happened to me, it can happen to anyone," Rooney told the Senate Special Committee on Aging in 2011.

During his testimony the star alternated between head-in-hands despair and raised-fist defiance.

“I am now taking steps to right all the wrongs that were committed against me,” he told the senators.

But the plot thickened for Rooney, whose story shows the complexity of proving this crime against our most vulnerable citizens.

To use his own catchphrase, Rooney could put on a show when he was spotted out and about in Ventura County, whether he was spooning out frozen yogurt at his TCBY franchise, holding court at the counter in the old Lupe’s Mexican Restaurant on Thousand Oaks Boulevard or playing the ponies in the Derby Club at the county fairgrounds.

Acting luminary Sir Laurence Olivier called Rooney “the best single film actor America ever produced” and that might explain how he covered up turmoil in his personal life — some of his own making, what with the serial marriages and multiple addictions.

But in 2011, Rooney’s court-appointed conservator sought a restraining order against the actor’s stepson Christopher Aber, alleging financial elder abuse. Rooney entrusted his personal and business affairs to Aber, the son of his eighth wife, Jan.

Rooney later filed suit against Aber, alleging he cleaned out millions from Rooney’s accounts, left him in the dark about his finances and denied him food and medicine.

In October 2013, the parties reached an out-of-court settlement where Aber agreed to pay $2.8 million.

The Ventura County Sheriff’s Office investigated Rooney’s claims of financial abuse but never pressed charges. Aber denies any wrongdoing. He never paid the settlement, and Rooney’s conservator has yet to restore the assets that vanished.

“What is clear: One of the biggest stars of all time who remained aloft longer than anyone in Hollywood history was in the end brought down by those closest to him,” wrote Gary Baum and Scott Feinberg in their award-winning 2015 investigation into Rooney’s elder-abuse claims that ran in The Hollywood Reporter.

Rooney’s is far from the only case where allegations of financial elder abuse proved tough to pin down. I recently wrote about a Thousand Oaks couple in their 80s who lost their home when their grandson allegedly borrowed heavily against it, defaulted on the payments and tried to sell it out from under them. The Ventura County Sheriff’s Office is investigating but no charges have been filed.

Getting the elderly even to report abuse is complicated by emotions because their abusers are almost always someone in their circle of trust, said Deborah Sutherland-Hocamp, a long-time volunteer for Grey Law, which provides free legal services to people older than 60.

“I’d hear ‘I don’t want my son to get into trouble,’” she said.

Financial elder abuse can be as serious as physical violence, Sutherland-Hocamp maintains.

“Loss of money is a death warrant in Ventura County,” she said.

With the sky-high cost of housing here, the average Social Security benefit of $1,100 to $1,200 gets eaten up on rent. If a senior is robbed of other assets, nothing remains to buy food or medicine.

It is estimated by 2030 more than 28 percent of Ventura County’s population will be 60 or older; that’s way up from nearly 17 percent in 2011.

Ventura County already has one of the state’s highest rates of domestic violence in all age groups — twice the state average — based on the number of 9-1-1 calls residents place for protection from abuse by someone close to them.

A coalition of law enforcement officers, county agencies and nonprofits propose creating the Ventura County Family Justice Center to streamline services to victims, The Star reported last week.

The elderly, who tend to be less mobile, especially could benefit from the convenience of accessing services under one roof.

It’s going to take money and will to get the center up and running. But if we are to help seniors who are suffering in silence as you read this, we are going to have to put on more than a show.

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Shades of gray complicate the battle against elder abuse

Couple gets probation on exploitation of elder charge

A Floyd County judge sentenced a man and woman to a year of probation after they took an elderly man’s disability check to pay for their own utility bills and buy mice to feed their pet snake, while he remained in his apartment with the power cut off.

Joshua Adam McCurry and Sheryl Lynn Norris were both sentenced by Judge Jack Niedrach to the term of probation on Wednesday after they were found guilty of felony exploitation of an elder or disabled person along with restitution of $136.

According to police reports and testimony presented in court:

Norris originally applied to receive Tommy Mills’ disability check but was turned down by the agency, so she reapplied with the information of her then­-boyfriend, McCurry. The two spent money on tools, their own utility bills and other items during the 15 months they received the victim’s disability check, police said.

During that time his power had been turned off multiple times and his cable was turned off, so he now watches DVDs because he can’t afford to pay the over $600 cable bill left unpaid by Norris and McCurry, his niece Beth Rose said.

The victim has a brain injury, Rose said, and is physically disabled, limited to his apartment by his disabilities.

“My uncle was a victim longer than the offenders were sentenced,” Rose said after the sentencing.

In his closing arguments, James Wyatt, who represented Norris in trial, said he presented a budget to the jury which showed his client provided for Mills and included services, such as haircuts, far in excess of what Mills’ disability check provided.

As part of the Floyd County Police Department’s investigation, detective Amy Nails said they tracked payment receipts for items they determined were not purchased to assist the victim and linked them to Norris and McCurry.

“There were two times he was living without power while they were feeding his pet snake and paying for their utilities with his funds,” Nails said.

At one point, Nails said, McCurry got arrested and Norris continued to accept the payments and use them for her own gain.

Rose, who takes care of the victim now, said she has been able to pay his bills and even have a little left over each month. While she’s taken over and her uncle is taken care of at this point, they’re still dealing with problems caused by the crime.

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Couple gets probation on exploitation of elder charge

Disciplined Milton lawyer charged widow client more than $400,000

A Milton attorney reprimanded by the Florida Bar is accused of charging her widow client more than $400,000 over a decade in fees for activities like doctor's appointments and planning the woman's birthday party.

Jennifer Byrom, a practicing attorney since 1984, had been working with her client since 1998, when the client's husband died and left her with a $1.5 million estate. The Florida Bar's complaint against Byrom claimed the attorney was listed as a voluntary guardian of the woman's property after convincing the widow that her daughter would be a bad choice because she lived out of state.

Byrom did not respond to requests for comment on Tuesday.

The Florida Bar's complaint claims Byrom didn't provide the client with an explanation of fees she would charge for maintaining the woman's property and her legal work, and immediately began to perform activities outside the scope of the duties of the guardian of the property. Byrom began to charge $180 to $250 per hour for her time, and $60 to $80 per hour for her staff's time for work such as discussing her client's medical condition with doctors, reviewing her mail, visiting socially and taking her to doctor's appointments. She charged $85 per hour for a member of her staff to do yard work, clean the client's house and paint the porch, for example.

Byrom also charged the guardianship for activities such as attending visitation and the funeral of her client's son, visiting her on her birthday, throwing her birthday parties, sitting for hours in a hospital waiting room while her client was in surgery and taking food and gifts to her client's home. The complaint claimed that Byrom charged the guardianship as though legal services were being performed, as well as charging for expenses such as mileage and meals.

This inaccurate accounting prevented the court from having the ability to determine that no conflict of interest existed between Byrom and her client, according to the Florida Bar complaint.

When the client's son died in the summer of 2007, the client's daughter started receiving copies of Byrom's paperwork showing the legal charges. At that point, the complaint states, the fees increased from $1,550 for May of that year to $12,000 the next month, and they continued to climb thereafter.

The daughter tried for two years to change guardianship to herself after her mother was declared incapacitated, but Byrom fought back. During proceedings, the court learned that Byrom failed to inform the court that in 1998 she had prepared, and had in her possession, the original of a Declaration Naming Preneed Guardian, in which her client named her daughter preneed guardian in the event her mother was found incompetent.

In 2009, the client's daughter was named guardian of her mother's person and property. In 2013, the daughter accepted a confidential settlement against Byrom.

Byrom entered a conditional guilty plea to the Florida Bar's accusations in November, saying she would recognize the guilt and accept a public reprimand, and she would complete continuing education credits. The Florida Bar accepted those conditions in a Jan. 26 court order and released its public reprimand list March 31.

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Disciplined Milton lawyer charged widow client more than $400,000

Mother dies in nursing home after nurse allegedly reads chart wrong

HIGHLAND PARK, Ill. — A family is suing an Illinois nursing home, alleging a nurse at the facility is to blame for the death of a loved one.

The family says their mother was supposed to be resuscitated, but a nurse read the paperwork wrong and nobody even attempted CPR.

52-year-old Kim Cencula was only supposed to be at a nursing home for a few weeks to regain her strength after getting pneumonia.

“I feel like they took my mom away from me,” says daughter Morgan Cencula. “I know that if she wouldn’t have gone there she would be with me here today.”

Kim suffered from diabetes and kidney failure. So she went to the Warren Barr nursing home in Highland Park where she could get better.

On March 29, 2016, a nurse found her “lifeless and not breathing” just after 4 a.m.

Surveillance video has been obtained from the nursing home.

“We have three people going in and out of that room in over 30 minutes,” says Tara Devine, attorney for the family. “During this 30 minutes, not one person calls 911, not one person calls a code blue, not one person administers CPR.”

In a lawsuit filed by the family, they allege the nurse misread the chart.

“You literally check a box to say yes you want to be resuscitated or no you do not,” Devine says.

Kim was supposed to be given CPR, but instead, the family says, she was left alone in her room.

Police reports show the nurse called 911 about 30 minutes after she found Kim unresponsive. But by the time paramedics arrived, it was too late.

Now the family says they want to warn others.

The Illinois Dept of Public Health investigated the nursing home after Kim died. Residents now have to wear a pink bracelet if they do not want to be revived.

Warren Barr issued a statement on the incident:

Warren Barr North Shore maintains the highest standards of care for our patients. The death of any of our residents is cause for both sadness and concern. We wish to express our deepest condolences to the family of Kimberly Cencula on her passing. Unfortunately, in a setting such as ours, we often treat very sick people with both chronic and even fatal diseases.

While we cannot comment specifically regarding Kimberly’s medical condition due to privacy laws and the lawsuit her family recently filed, we can say that we respectfully disagree with all of the allegations that have been made in the lawsuit. Our nursing staff is highly competent and provides the highest level of care to all of our residents, especially to those who are at the end of their lives.

Kimberly received the highest level of care throughout her stay at Warren Barr North Shore. We disagree with the allegation that our nursing staff’s handling of Kimberly’s care and treatment somehow caused Kimberly’s death. While we do not invite litigation, we do look forward to the opportunity to defend ourselves within the context of the lawsuit the family has elected to file.

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Mother dies in nursing home after nurse allegedly reads chart wrong

A Startling Cause of Misdiagnosed Dementia

The Kaiser Foundation recently reported that the average senior is taking six prescription drugs daily. Many add one or two new prescriptions to their daily routine each year, and often, the senior and the senior loved one’s family do not fully understand which pill does what, when to take each pill or what side effects to look out for.

Learn more about how this can lead to a misdiagnosis of illness, and even, medication induced Alzheimer’s disease or dementia.

 

How Medication Side Effects Can Masquerade as Dementia

Drug interactions and side effects often mimic the symptoms of age-related cognitive disorders. For instance, drugs that affect cognition and mobility, such as anti-anxiety meds, can make dementia symptoms worse — or even create a facade of dementia in people who don’t suffer from the disease, a condition known as pseudodementia.

For instance, many anti-anxiety drugs commonly prescribed to seniors such as Valium and Xanax, have side effects that are indistinguishable from Alzheimer’s or dementia, including:

• Short-term memory loss
• Disinhibition
• Hallucinations

Other medications can also cause pseudodementia, including cholesterol lowering statin drugs like Lipitor, which many seniors take. In fact, any medicine that can cause cognitive impairment could lead to a misdiagnosis of dementia. Classes of drugs including anti-histamines, antibiotics, corticosteroids, anticonvulsants, antiemetics, muscle relaxants and opioid pain killers all carry this risk.

While the right medicine can reverse the course of serious diseases and improve a senior’s quality of life immeasurably, medications also cause problems. We received this comment on our Senior Living Blog, which is worth quoting:

“My mother was fading fast. In the course of two months, she went from needing general assistance to not being able to stand or assist with her own transfers… Over the course of about three weeks, she had deteriorated to the point where she could not take her medications. Without meds, she regained her mind and most of her mobility. It came down to the medications she was on. We began reintroducing them one at a time with minimal doses for the most important issues. If we saw a return of symptoms of dementia, we would reverse course and she would come right back. It has made me wonder how many of our elderly end up in homes, or deteriorate catastrophically because they are on too much medication. ”

Senior Living and Medication Care Plans

For many seniors, a move to an assisted living community can help get this medication chaos under control. Most assisted living communities require that residents have a doctor’s visit before admission. Families and physicians often use this visit as an opportunity to “press the reset button” on prescriptions. A complete reassessment of the senior’s medication regime can take place at this time. Under doctor’s supervision, many seniors are able to go off of medicines that are redundant or have outgrown their usefulness.

Once a senior is admitted to assisted living, a care plan is put in place. Care plans lay out goals and strategies for the resident’s care, and medicines are a big part of the equation. The community, family, senior and medical professionals discuss what medicines will be given to the resident, why, and often set goals for reducing them. In fact, seniors, particularly those with Alzheimer’s and dementia, are often able to reduce their medications after moving to assisted living communities with memory care.

In fact, many seniors who have been prescribed anti-anxiety medications find themselves in an undignified stupor that’s not only painful for loved ones to witness, but also can lead to falls, head injuries and broken bones. Today’s memory care communities attempt to reduce this agitation and anxiety non-chemically, with methods such as:

• Purposefully designing communities to make people with memory loss feel comfortable
• Using therapy which reduces a senior’s blood pressure, improves mood and decreases anxiety
• Encouraging family visits and community involvement

Loren Shook, CEO of Silverado Senior Living, which specializes in memory care, confirms that many residents who move to Silverado communities are able to significantly reduce their medicine intake, and with great benefit.

Medication Management and Healthy Senior Living

While decreasing the amount of prescribed medications is ideal, it’s not always possible. In some cases, seniors require every medicine they’re prescribed. But even in these cases, assisted living plays an important role. Even if medicines can’t be reduced, it’s important that that they be taken correctly. Medication management, which is offered at nearly all assisted living communities, assures that seniors get the right medicine, at the right dose, at the right time. For seniors with multiple medicines, or with memory loss, this benefit alone can be a lifesaver.

If your older loved one is on multiple medicines, or is showing changes that you believe may be related to drug interactions, arrange a doctor’s visit to reevaluate medications. Talk to the doctor about what medicines are essential, and which may be doing more harm than good.

If your older loved one cannot take medication safely, and you can’t be there to help, consider memory care or residential home care. Our Senior Living Advisors can help your family find the most appropriate options for loved one.

Full Article & Source:
A Startling Cause of Misdiagnosed Dementia

Full Measure Will Run Segment on Guardianship Abuse

Investigative reporter Sharyl Attkisson is one of the most revered and respected reporters at the national level. NASGA is pleased to announce we have been working with “Full Measure” on the subject of guardianship abuse for nearly a year and a half --- and the case subsequently chosen by Full Measure will be the subject of Full Measure’s April 9 show.

It’s a very high profile case and you will be both outraged and astounded!

Click HERE to watch the teaser for the show - you won't want to miss it!