Allegations Of Abuse Marred Stan Lee’s Last Years — A Guardianship Might Have Protected Him

Stan Lee was revered as the genius behind the creation of a pantheon of superheroes who righted wrongs and defended the weak. But he turned out to be the one who might have needed rescuing in his final years.

Lee, the former head of the Marvel Comics empire, who personally co-created pop culture icons including Spider-Man, Black Panther, the X-Men and the Hulk, died on November 12, 2018, at 95. His estate has been valued at approximately $50 million. However Lee's legacy has been clouded by accusations of financial mismanagement and elder abuse, levied against his daughter, friends, and business associates.

The most carefully planned estate doesn't protect someone before he or she dies. But in Lee's case, a guardianship might have protected his assets and quality of life.

In his last years, Lee was ill and grieving the loss of his wife, Joan, who died in 2017 after nearly 70 years of marriage. He had a contentious relationship with a changing roster of attorneys and business managers. He also had a volatile relationship with his only child.

Months before Lee died, attorneys representing his daughter and former manager were in court fighting over who represented the Lee family interests. The court also granted an elder abuse restraining order against the former manager, according to The Associated Press.

An increasing number of people are living well into their 90s and beyond, but accompanying health and memory problems make them very vulnerable to exploitation, giving rise to elder abuse and financial power of attorney abuse. While a family member may be the official or unofficial caretaker for the individual, many people can't or shouldn't rely on family to help manage their personal and financial affairs.

While guardianship is the most restrictive means of providing for the care of an individual with mental incapacities, other alternatives, including powers of attorney, are not always the solution to the problem. While many practitioners recommend powers of attorney as a means of avoiding guardianship, significant elder abuse can and does occur through the use of a power of attorney, particularly financial abuse.

In most states, an agent under a durable power of attorney has no obligation or duty to report to anyone but the principal. In the case of incapacitated principals or principals with diminished mental capabilities, the agent's actions are likely not monitored at all because the principal is incapable of doing so.  In those cases, the financial abuse may continue for years before it is eventually discovered and in some instances, it may not be discovered until after the principal's death.

Guardians, on the other hand, are appointed by and monitored by the court and are subject to court oversight and various court reporting requirements, which is why many instances of power of attorney abuse eventually lead to the institution of court supervised guardianships.

An estimated 1.3 million adults are under the care of guardians --- either family members or professionals, according to the Senate Aging Committee. A guardian can have significant authority over the individual's life, deciding when and where to seek medical care, how retirement savings will be spent, and who can visit the individual.

In Lee's case, with so many people vying for his attention and assets, appointing an independent professional guardian might have helped to reduce the turmoil of his later years.

But guardianships are only as effective as the people appointed as guardians and the system supporting them.

In November 2018, the Senate Aging Committee issued a report recommending ways to improve the guardianship program, including:

• Enhanced monitoring of guardianship arrangements;
  
• Criminal background checks on all prospective guardians;
  
• Improved collaboration among government agencies, community organizations, and the courts; and
  
• Training for guardians, family members, and court staff on guardianship responsibilities and on how to spot signs of abuse.
  

To facilitate its recommendations, the committee announced the introduction of a bill called the Guardianship Accountability Act. The proposed bipartisan legislation would also expand the availability of federal grants to improve the guardianship system.

As an example, the Supreme Court of Pennsylvania adopted a new Rule 501 to the Pennsylvania Rules of Judicial Administration on August 31, 2018, which implemented a new statewide Guardianship Tracking System (GTS). The GTS tracks all data pertaining to adult guardianship cases and is the exclusive electronic filing system with which guardians report to the court. The GTS includes the filing of inventories and reports, and its goal is to allow for increased monitoring of guardian activity while streamlining and improving the guardianship filing process.

Lee's unfortunate and widely publicized situation can hopefully serve as a wake-up call to individuals and their families when planning for their end-of-life care.

Full Article & Source:
Allegations Of Abuse Marred Stan Lee’s Last Years — A Guardianship Might Have Protected Him

See Also:
Stan Lee Needs Saving, Not By A Superhero, But By A Conservator

Stan Lee Needs a Hero: Elder Abuse Claims and a Battle Over the Aging Marvel Creator

Judge Dismisses Restraining Order Protecting Stan Lee

Power of Attorney, Guardianship and Additional Issues in 'Gray Divorces'

Donna M. Marcus

By Donna M. Marcus

The number of people over 50 years of age filing for divorce has been increasing in recent years. It has become so prevalent that the term “gray divorce” is now used to describe such divorces. There are many reasons for this trend. Increased longevity, more social acceptance of divorce and the increase of both spouses working and being more financially independent are all likely factors contributing to couples over 50 years of age filing for divorce.

All divorces, including those of people over 50 years old, have to address numerous issues such as support and equitable distribution of the marital estate. When drafting the property settlement agreement, it is always a good idea to plan ahead to such things as retirement and health insurance. These issues become that much more important, though, the older we get. There are also additional concerns and issues that may arise more frequently when dealing with aging parties.

Before you address any economic issues, the most significant issue of all may be staring you in the face and you don’t even realize it. What if you are dealing with diminished capacity of a spouse?  As divorce among older couples continues to increase it is likely that we will be seeing capacity issues of the parties more often. With this as the future, it is important to know who needs to be appointed to represent the incapacitated party.

An incapacitated person is defined by 20 Pa. C.S. Section 5501 as, “an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.” An incapacitated person is not able to make “any contract or gift or any instrument in writing.” Both powers of attorney and guardians can be used to represent incapacitated persons in different circumstances. What is the difference between them, though, and how do you know when to use each of them?

Oftentimes as people age, they will appoint a power of attorney. This is the easiest and cheapest way for an aging individual to appoint someone to act on their behalf in their financial, legal and personal affairs. The person appointing the power of attorney is referred to as the principal and the person named power of attorney is known as the agent. It is common for a parent to appoint a child as their power of attorney, but there does not need to be a familial relationship. The duties of a power of attorney are to act on the principal’s behalf. The different forms of power of attorney are defined in 20 Pa. C.S. Section 5602. A power of attorney may be limited in scope as listed in 20 Pa. C.S. Section 5602(a). To the contrary, it may instead be general and assign the agent with more comprehensive responsibilities. A general power of attorney would have all the rights and duties as the principal and would be able to do such basic tasks for the principal as writing checks and signing documents on the principal’s behalf.

Perhaps the most important and overlooked form is the durable power of attorney. A durable power of attorney is defined in 20 Pa. C.S. Section 5604(a) as, “a power of attorney by which a principal designates another his agent in writing. The authority conferred shall be exercisable notwithstanding the principals’ subsequent disability or incapacity. A principal may provide in the power of attorney that the power shall become effective at a specified future time or upon the occurrence of a specified contingency, including the disability or incapacity of the principal.”

A durable power of attorney can be of great assistance for those who are aging and is a useful tool. It is a proactive step people can take to protect themselves and their assets before they are incapacitated and not in a position to do so. While a durable power of attorney gives the agent a great deal of authority, there are times when a guardian must still be appointed.  Additionally, one complication of any form of power of attorney is that the principal needs to have sufficient mental capacity to even appoint an agent.

Should you have a client you feel may be mentally challenged to the point of being legally incapacitated, you may be forced to have either a guardian ad litem or full guardian appointed under Title 20, the probate, estates and fiduciaries code. More specifically, when an incapacitated person is a party to a lawsuit, they must be represented by a guardian pursuant to Pa R.C.P. Rule 2053. Upon petition, the court can appoint a guardian ad litem if it finds a party is incapacitated after a hearing and a showing of clear and convincing evidence. 20 Pa. C.S. Section 5511(f) defines who may be appointed as guardian as, “any qualified individual, a corporate fiduciary, a nonprofit corporation, a guardianship support agency under Subchapter F (relating to guardianship support) or a county agency.” Similar to the power of attorney, a guardianship may be limited or more inclusive.

The Pennsylvania Superior Court first addressed the issue of whether an incapacitated person can file for divorce in Syno v.  Syno, 406 Pa. Super. 218 (1991).  The court in Syno held that being incompetent is not an outright bar to filing for divorce, but in such a case the court must appoint a guardian to represent the incapacitated person.

The issue of divorce and an incapacitated party was again before the Superior Court more recently. In Berry v. Berry, 197 A.3d 788 (2018), the court made it clear that if the capacity of either party is raised or questioned, the court must investigate further to determine if the party/parties are able to proceed or if a guardian needs to be appointed.

In Berry, the wife filed for divorce after 63 years of marriage. The wife’s decision to file was based on the husband’s noncompliance with taking his dementia medication causing his behavior to become irrational and the wife was attempting to protect her assets. At one point, the husband filed a motion with the court to appoint a guardian ad litem for the wife. The court did not further investigate the wife’s capacity and, instead, denied the motion once it was presented with documentation that the parties’ daughter was power of attorney for the wife. Later in the proceedings, the husband was too ill to be present in court and the court proceeded with the parties’ son acting as the husband’s power of attorney even though there was no documentation of his power of attorney presented. Ultimately, a divorce decree was entered without the court ever having a hearing on either party’s mental capacity. The wife appealed to challenging the equitable distribution award. The Superior Court never got so far as to address the wife’s issue, though. Rather, the court determined that the decree should never have been entered since the parties’ mental capacity had been raised as an issue, but the lower court did not do anything to determine if the parties were, in fact, capable of proceeding. It should be noted that the husband passed away before the case was heard by the Superior Court. As such, the court could not send the case back for further investigation and, instead, the court vacated the divorce decree.

There are other issues other than capacity that also must be considered when dealing with a gray divorce. One such issue involves savings and retirement assets. The parties may have worked for 30 years and thought they accumulated enough for retirement, but then are faced with supporting two households, a financially dependent spouse and possible health care issues. Careful consideration must be taken when dividing the marital estate and these issues must be contemplated when doing so.

Additionally, especially if one spouse stayed home to care for the children allowing the other spouse to work and focus on career, it is important to consider an extended award of alimony. The parties may also have additional responsibilities and costs to consider, such as paying for their children’s education and caring for aging parents.

Health insurance is another issue to consider. While it is important for everyone to have health insurance, it is even more necessary as health issues arise as the parties age. Costs of health insurance after divorce need to be considered before finalizing a divorce.

As people continue to live longer and no longer feel they need to be trapped in a joyless marriage, it is likely we will continue to see an increase in gray divorces. Couples may have raised families together, but simply fell out of love or no longer feel the need to remain married with their children out of the house and starting their own lives. If you are one of those people considering divorce over 50, make sure you talk to a lawyer to protect yourself and your future.

Donna M. Marcus is an associate attorney in the Norristown office of Weber Gallagher Simpson Stapleton Fires & Newby. She concentrates her practice on family law including divorce, child support and custody matters.

Full Article & Source:
Power of Attorney, Guardianship and Additional Issues in 'Gray Divorces'

Sisters arrested in Florida after admitting they 'euthanized' father in 2015, sheriff says

Mary-Beth Tomaselli, left, and her sister, Linda Roberts, right, allegedly confessed to killing their father, Anthony Tomaselli, in 2015 after he refused to enter an assisted living facility, officials said on Tuesday. (Pinellas County Sheriff’s Office)

Two sisters were arrested in Florida on Tuesday for allegedly admitting to law enforcement that they killed their father as part of a "premeditated" act four years ago because he refused to enter an assisted living facility.

Mary-Beth Tomaselli, 63, and Linda Roberts, 62, were taken into custody after they detailed to a male confidant whom they befriended in recent months what they had seemingly done, Pinellas County Sheriff Bob Gualtieri told reporters on Tuesday.

Roberts told the man — who recorded his conversations with her — that she and Tomaselli "euthanized" their father, Anthony Tomaselli, in March 2015, when he was 85 years old. The sheriff said that "Linda gave very specific details about how she and Mary-Beth killed their father."

The women said "they had killed their father, and had, quote, 'euthanized' him because he had been ill" and refused to go to an assisted living facility, according to the sheriff. He added, "They knew he would die sometime in the next couple of months, so they decided to euthanize him."

The sisters allegedly gave their father a concoction of alcohol and an "excessive" amount of sleeping pills "with the hope that it would kill him." However, the sheriff said Tomaselli put too much alcohol in the drink, which diluted it.

Their father was laying on the couch with labored breathing, but it didn't appear that he would die.

That's when, according to officials, "Linda tried to suffocate him by placing a pillow over his face, and when that didn’t work, Linda took a rag and stuffed the rag down his throat." At that point, the sheriff said, "Mary-Beth then pinched his nose close and held his arms until he stopped breathing and died."

Tomaselli told authorities that the situation was "weird" because after they allegedly killed their father, he "still had a pulse due to having a pacemaker despite being dead."

During this time, Tomaselli allegedly drugged her adult daughter who was in the house with sleeping pills, too, so she wouldn't have to be awake as her grandfather was "euthanized."

Once their father was dead, the daughters sold the home and split a $120,000 profit with their brother, who the sheriff's office said wasn't involved in the father's murder.

Both Tomaselli and Roberts were arrested and charged with first-degree murder, officials said.

Full Article & Source:
Sisters arrested in Florida after admitting they 'euthanized' father in 2015, sheriff says

Attorney charged with stealing clients' investments back in South Bend for court appearance

Eric Marshall

SOUTH BEND — Eric Marshall, the local attorney who appeared to have skipped town amid fraud allegations and charges last year, is back in South Bend and made his first court appearance Monday.

Marshall, 61, closed his office without notice and stopped communicating with clients at the beginning of last year. Not long after, two civil lawsuits were filed against Marshall by former clients accusing him of running a Ponzi scheme and stealing their investments.

In December, he was charged in federal court with five counts of mail fraud in what the U.S. Attorney called an “elder abuse scam.” In January, Marshall was arrested in Clearwater, Fla. After being extradited, Marshall was booked into the St. Joseph County Jail at the end of last week.

Monday, Marshall was arraigned on his federal charges before Magistrate Michael Gotsch. Marshall pleaded not guilty on all counts. Judge Gotsch denied bond and ordered Marshall to remain in pre-trial detention. A jury trial has been scheduled for April 29.

Between two civil suits, Marshall has been ordered to pay roughly $2.5 million. His wife, Kathleen Marshall, is named in one of the suits, but recently had the default judgement against her vacated. She said she had no knowledge of her husband’s alleged crimes and she didn’t know she was being sued.

This doesn’t completely remove her from the lawsuit, but she will now be able to raise a defense in court against the allegations. The default judgement against Eric Marshall still stands.

Full Article & Source: 

Attorney charged with stealing clients' investments back in South Bend for court appearance

How Your Elderly Parent Will Become a Ward of the State (part 1)

Make no mistake - state-imposed "guardianship" of senior citizens is a seizure of assets, and a violation of family rights.

A so-called "senior services" agency can go to court and get an emergency order of guardianship - simply by CLAIMING incompetency, abuse, or neglect. The family has no opportunity to refute the charges (if they even live in the same state!).

The older person is then taken from his/her home by POLICE - and delivered to a long-term care facility with no recourse. There they are usually diagnosed with dementia and medicated against their will. You can't even visit them unsupervised; somebody's always watching you.

They are "dead in the law."

These events often happen after being widowed or other upsetting event. Tragically, the elder person often made the mistake of reaching out for "help."

Source:
How Your Elderly Parent Will Become a Ward of the State (part 1)

He Wanted His Wife’s Fortune. So He Killed Her, Then Tried Framing His Daughter.

© Jefferson Siegel for The New York Times Roderick Covlin appeared in State Supreme Court in Manhattan on Wednesday where a jury found him guilty of murdering his wife, Shele Danishefsky Covlin in 2009.

by Jan Ransom

The 9-year-old girl woke up early one morning in December 2009 and found her mother facedown in a bathtub filled with bloody water inside their Manhattan apartment. Above the tub, a cabinet door had been nearly pulled off the hinges.

The girl’s father, who was estranged from her mother and lived across the hall, said the panicked girl had called him, and he had called 911. He told the police that he had tried to revive his wife. Investigators initially determined that her death was an accident. Within days, she was buried, without an autopsy, per the wishes of her Orthodox Jewish family.

But on Wednesday, nine years after the woman, Shele Danishefsky Covlin, 47, was discovered dead, a jury found her husband, Roderick Covlin, 45, guilty of her murder.

The verdict came after a yearslong investigation and an eight-week trial in State Supreme Court in Manhattan. Prosecutors portrayed Mr. Covlin as a heartless schemer who would stop at nothing to collect his wife’s money, who used his children as pawns in his machinations and even took steps to frame his daughter for the murder.

As the verdict was read, Mr. Covlin dropped his head and closed his eyes. The victim’s siblings and their spouses, who had attended the trial every day, embraced each other and wept.

“The wheels of justice turn very slowly, and we always had confidence that ultimately this day would come,” Ms. Danishefsky Covlin’s brother-in-law, Marc Karstaedt, said. “Finally, after nine years, we have justice for our beloved Shele.”

Mr. Covlin’s lawyer, Robert Gottlieb, said he would appeal the verdict.

The trial turned largely on circumstantial evidence that pointed to Mr. Covlin as the only person with a key to the apartment who had a motive to kill Ms. Danishefsky Covlin, a wealthy finance executive. Prosecutors said that Mr. Covlin strangled her to death because he wanted to inherit her fortune, then staged the crime scene to look like an accidental drowning. She had planned to cut him out of her will that same day.

“His primary motive was pure, unadulterated greed,” the lead prosecutor, Matthew Bogdanos, told jurors in his opening statement.

Still, jurors were challenged in determining what happened on New Year’s Eve 2009 inside Ms. Danishefsky Colvin’s apartment at the Dorchester Towers, a luxury building on West 68th Street, a few blocks from Lincoln Center.

The police, who initially thought it was an accidental death, did not immediately dust for fingerprints, or collect DNA. Nor did they secure items in the bathroom for evidence. They took no notes and spoke to only a few neighbors. They never searched Mr. Covlin’s apartment or the building’s common areas for evidence. They even allowed the family’s rabbi to clean the bathroom with peroxide, eliminating any evidence of blood.

© Jefferson Siegel for The New York Times Eve Karstaedt (right in red), Ms. Danishefsky Covlin’s sister, cries in reaction to the verdict on Wednesday. 

Mr. Gottlieb said in closing arguments on Monday that there was no way to determine who had murdered his client’s wife, largely because detectives had botched the investigation.

“It is impossible to know beyond a reasonable doubt what happened to Shele Covlin, how it happened and why it happened,” he said.

Because Ms. Danishefsky Covlin was buried without an autopsy, the cause of death was undetermined for several months. But as suspicions grew regarding Mr. Covlin, the family had her body exhumed, and in April 2010, a medical examiner determined that she had been strangled, her neck squeezed with such force it fractured the hyoid bone, causing bleeding in her right eye.

Still, it took five more years before prosecutors had enough evidence to arrest and charge Mr. Covlin, a self-proclaimed martial arts expert, with her murder.

Ms. Danishefsky Covlin had been married to Mr. Covlin for 11 years, and before her death had confided in family members and close friends about his erratic and abusive behavior, according to testimony and evidence presented at trial.

She wrote to her sister, Eve Karstaedt, in January 2009 that she was “very scared that at some point in the future all his anger and rage may result in something bad happening — he really can’t control his temper.”

The children’s babysitter, Hyacinth Reid, testified that one day Mr. Covlin was screaming at Ms. Danishefsky Covlin so loudly inside their apartment that he could be heard in the hallway. Later, Ms. Reid said, Ms. Danishefsky Covlin told her Mr. Covlin had thrown her to the floor.

Ms. Danishefsky Covlin filed for divorce in May 2009 and was planning to remove him from her will. That angered Mr. Covlin, who prosecutors say was often unemployed, and dependent on his wife and her family’s largess.

Prosecutors described Mr. Covlin as an impecunious professional backgammon player who risked losing his children and his lavish lifestyle if the divorce was approved. He wanted his wife dead, Mr. Bogdanos said, because he was set to receive about $5 million from her estate.

Ms. Danishefsky Covlin met Mr. Covlin at a Jewish singles party at Le Bar Bat, a bar in the Hell’s Kitchen neighborhood of Manhattan in February 1998, prosecutors said. They were engaged in a matter of weeks, despite an age difference of 11 years. Two years later, they had their first child, Anna.

Ms. Danishefsky Covlin was a senior vice president for private wealth management at UBS, while Mr. Covlin was an unsuccessful stockbroker who went to school, traveled for backgammon tournaments and had tried his luck in a number of financial ventures that Ms. Danishefsky Covlin helped fund, court records show. He also spent countless hours pursuing women for sex, prosecutors said.

On their 10th anniversary, Mr. Covlin told Ms. Danishefsky Covlin that he wanted an open marriage, and she objected, prosecutors said.

They separated in April 2009. She rented the apartment directly across the hall from hers for him because she did not want to disrupt the children’s lives — they had a second child, a son, by then. She also gave Mr. Covlin a set of keys to her apartment, a decision prosecutors said cost her her life.

For the rest of the year, the divorce and custody battle became increasingly bitter. Mr. Covlin, who had lost his job at Pragma Securities, a financial consulting firm, told a Family Court judge that he could no longer afford to pay child support. In response, the judge forbade him to spend money to attend backgammon tournaments. “All of which led to his growing, obsessive, all-consuming hatred of her,” Mr. Bogdanos said.

A month after they separated, Mr. Covlin tried to sabotage his wife, according to court records, telling her employer that she used drugs and had stolen money from their joint account. Two months later, he coached their 3-year-old son, Myles, to falsely accuse Ms. Danishefsky Covlin of sexual abuse, prosecutors said.

Patricia Swenson, a woman Mr. Covlin met online, testified that he had told her in August of that year that he wanted to kill his wife or to have her die some other way.

Prosecutors say that Mr. Covlin followed through on his word, but his attempts to obtain his wife’s money after her death stalled after he became mired in a legal battle with her brother, along with a custody dispute over the children.

For Mr. Covlin, custody of the children meant access to the millions of dollars his wife had left for them. In the end, however, his parents, David and Carol Covlin, of Scarsdale, became the children’s guardians.

Mr. Covlin, who moved in with his parents, assaulted his mother in September 2011, slamming her headfirst into a wall, and attacked his father two months later, according to court records. He also took $84,000 from his children’s college fund.

By the fall of 2012, Mr. Covlin had laid out several plans to kill his parents but didn’t carry them out, according to testimony and court records. “His anger and rage was uncontrollable,” another girlfriend, Debra Oles, testified, saying Mr. Covlin had tried to recruit her to help with his schemes.

In January 2013, Mr. Covlin instructed his daughter, Anna, who was then 12, to accuse her grandfather of rape, according to court records. But the girl balked.

Later that year, Mr. Covlin plotted to kidnap Anna and take her to Mexico, where he would pay someone $10,000 to marry her in order to emancipate her from her grandparents, prosecutors said in court papers. That plan also never came to pass.

While Mr. Covlin continued to concoct plans to get his children back and to regain access to their inheritance, he was the primary suspect in the ongoing murder investigation.

In one of his final acts before being arrested, court papers say, Mr. Covlin devised a plan to frame his daughter for Ms. Danishefsky Covlin’s murder. In June 2013, he composed a false murder confession in her email account as if it were written by her.

“I lied,” Mr. Covlin wrote, pretending to be his daughter. “She didn’t just slip.”

Full Article & Source:
He Wanted His Wife’s Fortune. So He Killed Her, Then Tried Framing His Daughter.

Legislation bolsters guardianship reforms

By Colleen Heild

A measure is advancing in the state Legislature to give alleged incapacitated people – and those who care about their welfare – a greater voice in the legal process that can turn over management of their lives and finances to court-appointed guardians and conservators.

The legislation would allow people to call witnesses and otherwise defend themselves in court against allegations that they are incapacitated and provides for a new grievance procedure for complaints against guardians and conservators. It also details the ways someone can designate the guardian or conservator they want should the need arise.

The legislation, sponsored by Sen. Jim White, R-Albuquerque, and Rep. Daymon Ely, D-Corrales, builds on the slate of reforms enacted in 2018 that aimed at injecting transparency and accountability into New Mexico’s guardian/conservator system.

“Last year made quite an impact,” White told the Journal last week. “We made laws a number of years ago to create this guardianship and conservatorship system to protect the folks that can’t handle it themselves and then people found a way to abuse it. So now we’re making laws to hopefully stop the abuse.”

White said the proposal is the product of a series of meetings over the past year involving a group that included judges, the state Auditor’s Office, Disability Rights New Mexico, the Attorney General’s Office, the Governor’s Office and others.

The measure was approved unanimously by the Senate on Friday and was sent to the House for further hearings.

The measure, SB 395, adds teeth to last year’s legislation by requiring certification of professional guardians and conservators, and increases fines if they are late in filing required annual reports with the court about the incapacitated person’s status.

It provides that people who are alleged to be so incapacitated they can’t manage their affairs would be able to present evidence, examine witnesses and otherwise participate at a hearing in which a judge considers a petition – sometimes filed by family members or even a neighbor – that would authorize the appointment of a guardian or conservator.

That provision, according to a legislative analysis, is important “for the person alleged to be incapacitated to adequately defend themselves and present evidence at hearings.”

Supreme Court Justice Shannon Bacon told the Senate Judiciary Committee that the 52-page bill is “much more explicit what the protected person’s rights are.”

The measure also creates a process so that a protected person or those interested in that person’s welfare can file a grievance with the court if the person believes a guardian or conservator is breaching their fiduciary duty or otherwise acting inappropriately.

“You want anybody who’s interested or sees an abuse, you want them to be able to come forward and say we need to look at it,” White told the Senate Judiciary Committee.

Once a grievance is filed, the judge who appointed the guardian or conservator is required to review the grievance, schedule a hearing if appropriate and take any action supported by the evidence.

Bacon, who as a state District Court judge in Albuquerque served as the courts’ chief representative in reform discussions, has since been appointed to the state Supreme Court by Gov. Michelle Lujan Grisham.

Bacon told the Judiciary Committee that the Supreme Court has already approved rules – not yet put into place – anticipating approval of SB 395, to create a standardized grievance form available to people who seek to file such grievances.

Bacon said court rules will set out the process so a judge can hear all sides of a grievance.

And she added there is a “fail safe” mechanism contemplated so judges can decline to consider a grievance if a similar grievance has been filed within the prior six months and was acted upon by the judge.

The measure would allow anyone interested in the protected person’s welfare to file a grievance.

“We want individuals to say ‘something doesn’t seem right’ and if you start to narrow the scope as to who can say something isn’t right, we’re just putting this all back in the closet,” Bacon told the committee.

Another safeguard in the proposed legislation would allow the court to appoint a court investigator to assess a protected person’s mental and/or physical capacity no later than 10 years after the initial appointment of a guardian or conservator, and every 10 years after that.

Some people, such as those with traumatic brain injury, may have improved to the point that they can manage without a guardian or conservator, Bacon said.

The 10-year review would supplement the legally required annual or initial 90-day reports judges receive from guardians and conservators they appoint.

The bill also specifies what types of documents, such as a will, a person can use to designate their choice of guardian or conservator if he or she becomes incapacitated in the future.

The person designated would rank second on the priority list a judge by law must consider in deciding whom to appoint. The first would be a guardian already appointed in another jurisdiction.

“That’s in there also,” White said, “that if they’ve got a will or a power of attorney, that those documents are respected.”

The bill is the latest attempt to reform the state’s adult guardianship/conservatorship laws after a 2016 Journal investigation and follow-up stories revealed weaknesses in the system, which allowed incapacitated people in need of protection to be victimized.

Full Article & Source:
Legislation bolsters guardianship reforms

Sens. Toomey and Casey working together to protect the elderly | Editorial

By PennLive Editorial Board 

Editor’s Note: The editorial has been updated to correct the number of nursing homes currently on the list of Special Focus Facilities. 

If there is one thing we can all agree on, it’s the absolute imperative of respecting and protecting the elderly.

Whatever your political persuasion, right, left or in between, this is a basic human value that should transcend all differences. And it is heartening to see two U.S. Senators set aside their political differences and cooperate to end neglect and abuse of the elderly in nursing homes in Pennsylvania.

In response to the recent PennLive investigation, ”Still Failing the Frail,” U.S. Sens. Robert P. Casey Jr. and Pat Toomey have decided to work together to address apparent deficiencies in the oversight of nursing homes.

The senators have jointly penned a letter to Seema Verma, administrator of the U.S. Centers for Medicare and Medicaid Services in Washington, D.C., raising questions about a federal program tasked with improving persistently failing nursing homes.

As PennLive reporter Daniel Simmons-Ritchie documented in “Still Failing the Frail,” some of the worst nursing homes in Pennsylvania have continued to be plagued with problems – including chronically low staffing, insect infestations, and poor care that has harmed residents – despite ownership changes and promises of tougher oversight by the Wolf administration.

Among those homes, one is a current member of the federal government’s “Special Focus Facility” (SFF) program. Nursing homes are selected as SFF if they consistently provide poor care.

A total of 85 of the nation’s 15,000 nursing homes have that designation (including four in Pennsylvania). Those homes are supposed to get extra scrutiny and can potentially lose their government funding if they don’t improve.

Toomey and Casey’s letter raises questions about the effectiveness of that program: many nursing homes have been on the SFF list for years, without any action being taken against them, as the federal dough continues to roll in.

“Neglect and abuse of this nature is altogether unacceptable,” Toomey and Casey wrote, “and through a robust system of monitoring, oversight, technical assistance and enforcement, it should be entirely avoidable.”

The senators are absolutely right. There is no reason nursing homes that do not properly care for their residents should remain open year after year, transferred from one shoddy owner to the next, treating our elderly as pawns in heartless business schemes that focus only on the bottom line.

In fact, there should be zero tolerance for negligence or abuse in any facility charged with caring for some of the most vulnerable people in our community. And Sens. Toomey and Casey shouldn’t rest until that is indeed the case, and authorities at all levels are held accountable.

To reinforce the seriousness of their interest in the issue, the senators set a deadline of March 27 for the federal agency to respond. That’s a clear sign they mean business and will not let this matter rest until they get the information they need.

Once they get their answers, the next step will be for these senators to move with all due haste to end the apparent negligence that threaten the very lives of the people we have a duty to protect.

While solving many of the problems identified in the PennLive’s series rests with the Wolf Administration and the General Assembly, Casey and Toomey should be applauded for stepping up to help at the federal level in a show of bipartisan cooperation.

Working together, Senators Casey and Toomey must keep the pressure on those at the federal level who can help strengthen oversight of nursing homes, as they have vowed to do in their letter.

We hope more political leaders will take note of the power of bipartisan cooperation for the common good – as Sens. Toomey and Casey are now modeling. And it’s not a bad idea for approving constituents to send a strong signal of their gratitude.

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Sens. Toomey and Casey working together to protect the elderly | Editorial

Former Atco Probate Judge Sentenced to 30 Years for Role in Missing $430,000+ in Missing Probate Court Funds

Former Atkinson County Probate Judge Margie O’Brien was sentenced to 30 years – three to be served in prison – last Thursday morning, February 14, at the Atkinson County Courthouse for her role in missing funds from the Probate Court Office, totaling over $430,000.  

In front of a crowded courtroom Thursday morning, Judge Gary McCorvey handed down the sentence after a restitution hearing was held that lasted over two hours. During the hearing, Judge McCorvey heard from both the prosecution and the defense as to why or why not O’Brien should pay restitution. The prosecution called the CPA to the stand who first discovered the missing money, and he proceeded to explain exactly how they realized that money was missing. According to the CPA, they printed cash receipts, money order and check receipts, and deposit slips and noticed that none of them were matching up. This led into a bigger investigation that eventually revealed over $433,000 in missing monies. After being cross-examined, the CPA was excused from the stand, and the defense then called four character witnesses of their own. 

At the end of the character witnesses, Defense Attorney then called Margie O'Brien to the stand. During the time on the stand, O'Brien, while during questioning by her attorney, Converse Bright, reminded the court that she voluntarily resigned her post and could still be working and drawing a salary to this day if she would have wanted to. When asked why she didn't, O'Brien responded with, "I can't stand going out into public and wondering what people are thinking about me." In an attempt to try and prove that O'Brien shouldn't pay restitution, the defense then went on to explain that O'Brien only has an income due to her husband's job of about $2,600 a month and that her bills total over $3,000 a month and that she has to rely on help from her family to make ends meet.  Bright went on to explain that with things they way they currently were, O'Brien couldn't afford to pay a monthly restitution payment and shouldn't have to. Upon cross-examination, Deputy Attorney General David McGlaughlin stated, "This is a very tough situation, Mrs. O'Brien, but you will still have time to redeem your family's name." He then went on to explain to the court that about $1,000 of O'Brien's bills were to DirectTV and cell phones and that money could be used to pay restitution. Also during the cross-examination, O'Brien admitted to taking some money to buy lunch for herself and the Probate Office employees but stated that she always put it back. McGlaughlin finished by asking O'Brien why she couldn't find a job in the two years since she resigned, and she replied with, "There are some days that I can't even get out of bed." The prosecution closed by suggesting a four-year prison term and 30 years of probation plus restitution.

In his closing statement, Defense Attorney Converse Bright stated in reference to O'Brien, "You can't expect somebody to survive four years in prison with diabetes, hypertension, anxiety, and clinical depression. She may not survive four years. We think that four years may be a death sentence for somebody in her health. She's paid a lot emotionally and has already committed herself to house arrest. I've already made my point on restitution. To order somebody to pay when they can't is setting them up to fail, and the Georgia Court of Appeals will see it that way." The defense then suggested only a two-year prison term.

In his closing remarks before the sentence was handed down, Judge McCorvey stated, "People don't normally go to prison for a first offense of theft by taking." He then went on to say, "We can't afford to put people in prison that we are mad at. We put people in prison that we are afraid of, and nobody in here is afraid of Mrs. O'Brien. Prison should be reserved for child molesters, murderers, and rapists."

According to court documents, Atkinson County has already received $124,000 from a bond to cover part of the missing money. O’Brien would be responsible for the remaining $309,000. Judge McCorvey also ordered that upon completion of her prison sentence, O’Brien would be given no less than six months to find suitable employment before restitution payments would begin on a monthly basis.

O'Brien pleaded guilty to 10 counts of theft by taking in late November, a week prior to a trial date that was set for December 3rd.

On Thursday morning, O'Brien was sentenced to 15 years of probation for one count of theft by taking to be served concurrent to the three-year prison sentence. She was also sentenced to 15 years of probation for another count of theft by taking to be serving consecutively to the other 15-year sentence. 

Tifton Circuit Judge Gary McCorvey presided over the case due to a law that prohibits judges from a circuit from hearing cases pertaining to judges that serve in the same circuit.

The plea deal reduced the charges against O'Brien down to just 10 counts of theft by taking. The original indictment included 81 counts of theft by taking and two counts of racketeering in the case of over $430,000 in missing funds. 

In the indictment, O'Brien was charged with taking cash transactions from firearm licenses, marriage licenses, hunting violations, moving violations, criminal violations, and other means, and keeping the funds for herself and covering the deposits with checks that had been paid into the office. 

At the conclusion of the sentencing, Deputy Attorney General David McGlaughlin stated that the state had no problem with O’Brien taking a few days to get her affairs in order before reporting to begin her sentence. Judge McCorvey took this into consideration and ordered O’Brien to report on Monday, February 18th to begin her sentence.

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Former Atco Probate Judge Sentenced to 30 Years for Role in Missing $430,000+ in Missing Probate Court Funds