Trial starts for professional guardian accused of exploiting person under his care

PINELLAS COUNTY, Fla. — The trial of a former professional guardian accused of financially exploiting a disabled man under his care began Monday.

He is charged with 2nd degee Exploitation of an Elderly or Disabled person, accused of taking about $20,000.

Detectives arrested Fernando Gutierrez in 2017, alleging at the time that he took money from an elderly woman and her disabled son using a power of attorney agreement.

One count was dropped a few weeks ago by prosecutors.

In the order, State's Attorney Bernie McCabe said, "investigation has revealed that breach of fiduciary duty cannot be proven since the victim is deceased."

At the time of his arrest, he was the guardian, power of attorney or health care surrogate for more than 50 people.

Today he looked on as attorneys from both the defense and prosecution questioned about three dozens potential jurors.

They asked prospective jurors about everything from their occupations, to their favorite movies, to their own experiences with crime and law enforcement.

Late afternoon, a jury and alternates were seated, equally divided among men and women.

The I-Team first investigated Gutierrez in 2016, after learning that he had been investigated multiple times by local and state law enforcement agencies.

He was also under investigation by the Pinellas County Inspector General's Office at that time.

The Pinellas County IG's office learned he had been banned from a local hospital, after he allegedly parked in physicians' parking spaces and wore a lab coat to gain access to potential clients.

Gutierrez admitted to us at that time he had no medical training.

But he had served on the board of directors of the Pinellas County Guardianship Association.

Police charged Gutierrez with the felony crimes in 2017, after alleging he used power of attorney agreements to bilk an 86-year-old woman and her disabled son.

"He’s used that money for various things, like paying his kid’s tuition. paying his mortgage," the prosecutor said during his bond hearing last year.

In his opening statement, Gutierrez' attorney said his client was fairly compensated for work done on behalf of his client.

Prosecutors say they will prove he took advantage of a vulnerable elderly victim and exploited him using an agreement he didn't understand.

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Trial starts for professional guardian accused of exploiting person under his care

Lawyer suspended for alleged trust thefts faces new charges

A suspended lawyer already accused in three counties of stealing money from ex-clients’ special needs trusts has been charged in Indianapolis with allegedly stealing from another victim. The latest charges against Kenneth Shane Service include a count of racketeering.

Service — who already was facing court dates in Delaware, Franklin and Lawrence counties for allegedly stealing from his former special needs trust clients — was formally charged May 29 with Level 5 felony corrupt business influence and three counts of Level 6 felony theft.

The founder and former leader of Carmel-based National Foundation for Special Needs Integrity Inc. has not yet stood trial on any of the charges against him. But the accusations in Marion County assert he made unauthorized estimated withdrawals of more than $43,000 from the trust of a person who was subject to a guardianship.

Authorities say Service withdrew the money from the Marion County victim’s special needs trust between April 2014 and June 2016, including cash withdrawals via cashier’s checks for amounts from $6,500 to $22,100.

The amount of money Service has been charged with stealing from former clients now stands at more than $250,000. Additionally, Service also is accused in civil lawsuits with taking another $100,000 from clients’ trust funds in Allen, LaPorte and Wabash counties.

An attorney for Service was not listed in online court records in the Marion County case, and Service could not be reached for comment.

Indiana State Police have been investigating Service for more than two years, beginning with the alleged theft of $85,000 for a former special-needs trust client in Bedford. ISP investigators said at the time they feared the potential of “numerous victims in multiple states.”

That initial case in Lawrence Superior Court is set for a jury trial beginning July 17, but Service’s defense attorney last month advised Judge John M. Plummer III that a continuance would be requested, according to online court records.

In Franklin County, Service is scheduled to stand trial beginning Sept. 4 after a May trial date was continued. Service was charged Sept. 18 with Level 5 felony theft and two counts of Level 6 felony theft for allegedly stealing a total of $102,564.27 from a Brookville man who was the subject of a guardianship.

No trial date has been set in Delaware County, where Service was charged last June with Class D felony theft for allegedly stealing $23,622 from a former client. A status conference is scheduled for next month in that case.

The nature of Service’s alleged crimes led attorneys to rush to remove him as trustee in estate cases after Service was suspended by the Indiana Supreme Court in June 2017.  

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Lawyer suspended for alleged trust thefts faces new charges

Pa. nursing homes get ’F’ from national group

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File photo (iStock)

By David Wenner | dwenner@pennlive.com

Pennsylvania nursing homes on Monday received a failing grade from a national advocacy group, which gave it one of the worst report cards in the nation.

Families for Better Care based its report card on eight measures collected by the federal government. These include number of problems found during government inspections, staffing levels and number of verified complaints. Pennsylvania ranked among the bottom ten states in measures including staffing hours per resident, number of facilities with deficiencies and portion of homes rated as average or worse than average by Medicare.

Brian Lee, the organization’s executive director, called understaffing a “chronic problem” at Pennsylvania nursing homes.

“A great way for Governor Wolf and Pennsylvania lawmakers to improve nursing home safety is by passing a tough staffing standard, something the residents sorely need,” he said in a news release. “But a new staffing standard isn’t enough, lawmakers must find a way to help nursing homes pay for any new staffing mandate if care is to improve at all.”

Quality issues at Pennsylvania nursing homes had much to do with the state’s two U.S. senators, Democrat Bob Casey and Republican Pat Toomey, pushing for more public disclosure of information about troubled nursing homes. 

Pennsylvania ranked 46th among the states, down from 32nd in 2014, the year of Families for Better Care’s previous report card. Pennsylvania received a D in 2014.

Texas ranked worst, ahead of North Carolina, Illinois, Georgia, New Mexico and Pennsylvania. The best grades went to Hawaii, Delaware, Alaska, Rhode Island and Utah.

Pennsylvania received better than a D for only two of the eight measures. It received a C for its proportion of homes with severe deficiencies, placing it roughly in the middle of the pack nationally. Still, that’s a significant drop from 2014, when Pennsylvania received an A and ranked eighth-best.

Pennsylvania’s best mark, a B, came in the area of professional nursing hours per resident. It’s rate of 1.83 professional nursing hours per resident was good for 16th place, down slightly from four years ago.

However, the 2.24 hours of daily direct care for residents of Pennsylvania homes put it near the bottom, at 47th.

Zach Shamberg, the CEO of the Pennsylvania Health Care Association, which represents nursing homes, said the report card is based on 2017 data. In 2018, he said, Pennsylvania nursing homes showed significant improvement in a few measures, including the number of homes with severe deficiencies.

But in an interview, he focused on funding shortages which he said impact homes’ ability to care for residents. Seventy percent of Pennsylvania nursing home residents are covered by Medicaid, the state-federal program for people with lower incomes. Medicaid funding hasn’t increased since 2014, with the average Pennsylvania home receiving $27.25 per day less than the cost of caring for each resident, according to Shamberg.

As a result, homes have trouble competing for workers, especially with the present historically low unemployment rate, according to Shamberg. “Frankly, right now we can’t find them … there is a workforce crisis around Pennsylvania and around the country.”

But rather than raising wages to attract more workers, Shamberg said the solution is more about “training and competency.”

It’s no secret nursing homes in Pennsylvania are struggling to provide adequate levels of certified nursing assistants, or CNAs, who provide most of the care for nursing home recents. At a recent hearing held by Pennsylvania lawmakers, representatives of nursing homes and a union representing CNAs agreed homes face a staffing crisis. They further agreed the crisis is the result of low wages paid to CNAs, with the wage crisis stemming from long-stagnant state payments for nursing home care. They stressed the typical nursing home resident has grown steadily sicker and in need of more care, but payments haven’t risen accordingly.

Union representatives agreed on the need for more funding, but urged lawmakers to give increases only to homes that are willing to spending it on staffing, not profit. The union also wants the state to set a minimum level of hours of care per resident, which the nursing home industry opposes.

The Pennsylvania Department of Health believes the homes’ poor grade and the drop in national ranking is due in part to increased state oversight and penalties against nursing homes, according to spokesman Nate Wardle.

If one state inspects and its penalizes its home more vigorously than another, that could result in its homes appearing worse.

In April, Wardle said, there were 541 inspections of 369 nursing homes, and 312 complaint investigations, resulting in fines penalties of more then $206,000 in penalties.

Beyond that, Gov. Tom Wolf supports mandated staffing levels, and has also assembled a group to look for policies that will improve nursing home safety, Wardle said.

Full Article & Source:
Pa. nursing homes get ’F’ from national group

Trial starts for professional guardian accused of exploiting seniors, stealing thousands from them

The Tampa Bay area suspect accused of financial exploiting senior citizens will face a jury beginning Monday, June 10.

Source:
Trial starts for professional guardian accused of exploiting seniors, stealing thousands from them

Attorney vows to appeal sanctions imposed in case involving incapacitated millionaire

By John Breslin
SAN ANTONIO – A San Antonio attorney has vowed he will appeal against sanctions of more than $200,000 imposed on him and his clients in a case involving an incapacitated millionaire, his apparent sham marriage and adoption of his former wife's adult children.

Phil Ross maintains there is no evidence he did anything wrong in his dealings with 81-year-old Charles Thrash, the former owner of an auto repair shop with an estate valued at more than $3 million.

But Judge Oscar Kazen of Bexar County Probate Court, before imposing more than $220,000 in sanctions, found that Ross misrepresented himself as Thrash's lawyer and helped to marry the millionaire to Laura Martinez and the adoption of her children. Both have since been reversed.

Thrash was mentally incapacitated at the time of the marriage, and both Ross and Martinez knew of a court order two months previously stating that he was incompetent, the court found.

The wedding was held in another country, Ross served as best man, and signed the marriage certificate, according to a report in the San Antonio Express News.

But a defiant Ross told the Southeast Texas Record that he "did not exploit Charlie Thrash and did nothing to cause him harm."

On the wedding to Martinez, the attorney said, "It was Charlie's choice."

Ross described the judge's opinion as "erroneous," including the order to cover the attorney fees of the court-ordered guardians.

The judge imposed various sanctions, including $187,500 on Ross, Laura Martinez and Brittany Martinez, to cover the attorney fees. He also ordered Ross to pay back $30,400 in attorney fees and a further punitive $5,000.

According to the San Antonio Express News, Martinez first met Thrash in 2012, some years before a court found that he was mentally incapacitated. A court investigator report earlier this year said that Thrash did not want to marry.

"The marriage caused no harm or injury," Ross said. 
 
Full Article & Source:
Attorney vows to appeal sanctions imposed in case involving incapacitated millionaire 

See Also:
San Antonio Lawyer Sanctioned for Fraudulent Conduct Involving Elderly Millionaire

JAMIE GIBSON: Beware of signs of elder abuse

Did you know one in ten Americans that are ages 60 and up have experience some form of elder abuse?

However, only one in fourteen is reported.

Anyone can be abused at any age as well as the forms of abuse. There are several types of abuse that elders can experience:

• Physical abuse: inflicting physical pain or injury upon an older adult.
• Sexual abuse: touching, fondling, intercourse, or any other sexual activity with an older adult, when the older adult is unable to understand, unwilling to consent, threatened, or physically forced.
• Emotional abuse: verbal assaults, threats of abuse, harassment, or intimidation.
• Confinement: restraining or isolating an older adult, other than for medical reasons.
• Neglect: caregiver’s failure to provide an older adult with life’s necessities, including, but not limited to, food, clothing, shelter, or medical care.
• Deprivation: denying an older adult medication, medical care, shelter, food, a therapeutic device, or other physical assistance, and exposing that person to the risk of physical, mental, or emotional harm.
• Financial exploitation: the misuse or withholding of an older adult’s resources by another, or internet scams.

60 percent of perpetrators of elder abuse are the family member of that person.

Dementia and Alzheimer’s diseases tend to make the elder at a high risk for experiencing abuse due to the mental impairment they are experiencing.

The elder would also assume that a family member wouldn’t do such a thing to their loved one. What are some signs that abuse is occurring to your loved elder? Bruises, burns, unusual withdrawal, sudden changes in financial status, bedsores, and poor hygiene are a few common factors in elder abuse.

June 19th is Elder Abuse Awareness Day. According to the USC Center on Elder Mistreatment, the purpose of WEAAD is to provide an opportunity for communities around the world to promote a better understanding of abuse and neglect of older persons by raising awareness of the cultural, social, economic and demographic processes affecting elder abuse and neglect.

If you would like more information on Elder Abuse and how it can be prevented, contact The Bridge to Hope at (715) 235-9074. 

Editor's note: An earlier version of this column incorrectly stated that June 19 is Elder Abuse Awareness Day. The correct day is June 15.
 
Full Article & Source:
JAMIE GIBSON: Beware of signs of elder abuse

9 N.J. nursing homes may soon be ranked among the worst in the country

Steve Hockstein | For NJ Advance

The Wanaque Center for Nursing and Rehabilitation.

By Ted Sherman | NJ Advance Media for NJ.com and Susan K. Livio | NJ Advance Media for NJ.com

Nine New Jersey nursing facilities — including the troubled pediatric care center in New Jersey where 11 children died last year in a deadly viral outbreak — may soon be ranked among the worst in the country.

The nine were among a list release earlier this week of hundreds of problem-plagued facilities with a history of serious quality issues.

Two nursing facilities in the state are already on the roster of 88 so-called “Special Focus Facilities” in the country by the Centers for Medicare & Medicaid Services. They are New Grove Manor in East Orange and Riverfront Rehabilitation and Healthcare Center in Pennsauken.

The Wanaque Center for Nursing and Rehabilitation in Haskell, where the deadly adenovirus outbreak took the lives of nearly a dozen young patients, is the focus of ongoing federal and state investigations. In a report in February, CMS said the facility it said was ill-prepared to react to the rapid spread of a deadly strain of adenovirus that swept through its pediatric wards. The report poor infection controls, delays in seeking treatment of sick kids that led to significant medical complications, as well as inadequate administrative oversight.

The other New Jersey nursing homes identified as SFF candidates included:

· Millville Center in Millville

· Our Lady’s Center for Rehabilitation and HC in Pleasantville

· Care One at Evesham in Marlton

· Riverside Nursing and Rehabilitation Center in Trenton—which shares ownership interests with Wanaque

· Sterling Manor in Maple Shade

· Waterview Center in Cedar Grove

· Summit Ridge Center in West Orange

· Roosevelt Care Center at Old Bridge.

Millville Center spokeswoman Christine Emrick said she encouraged the public to check out the nursing home’s ratings at nursinghomecompare.gov, which earned four out of five stars for staffing levels, two stars for quality and 4.3 stars for customer satisfaction.

"With that said, we are committed to providing high-quality care to our patients and residents and are always striving to improve quality and performance at the center,'' Emrick said.

Other nursing home representatives could not immediately be reached for comment.

Wanaque Center was fined $600,000 in the wake of the outbreak. Attorneys for Wanaque Center have said they will contest the findings. But the nursing home’s possible designation as a Special Focus Facility, or SFF, indicates that CMS still has concerns over the quality of care at Wanaque, placing it among other facilities that have a pattern of serious health and safety violations.

An attorney for the Wanaque Center declined comment.

The previously undisclosed list of nursing homes being considered by CMS for inclusion in the SFF program was released earlier this week by U.S. Senators Pat Toomey, R-Pennsylvania, and Bob Casey, D-Pennsylvania, who had sought more detail about more than 400 nursing homes facing added scrutiny.

Brian Lee, executive director of Families for Better Care, a nonprofit advocacy organization, applauded the Pennsylvania senators’ decision to make the list of possible contenders public for the first time.

“People want to know this information and they like these ‘hall of shame’ nursing home lists, so they can figure out where to put a loved one,” Lee said. “They can be more tenacious as an advocate.”

Toomey, in releasing the list, said “CMS has arbitrarily excluded from public disclosure” hundreds of underperforming nursing homes.

“When a family makes the hard decision to seek nursing home services for a loved one, they deserve to know if a facility under consideration suffers from systemic shortcomings. While the vast majority of nursing homes provide high-quality care, there are some that are consistently failing to meet objective standards of adequacy,” he said.

Casey said families deserve to have all the information available to choose the facility that is right for them.

“Across Pennsylvania, and the nation, most nursing homes serve their residents well and treat them with dignity and kindness. It is outrageous that we continue to hear stories of abuse and neglect in nursing homes that do not live up to these high standards,” he said in a statement.

During a conference call with the media Wednesday, CMS Chief Medical Officer Kate Goodrich said the list of 450 nursing homes which are candidates for inclusion would be posted to the agency’s website soon, although she did not say when.

Nursing homes are selected based on past inspection reports and complaint surveys, then, each state’s health department is asked to recommend whether these nursing homes deserve the added scrutiny, she said.

“We leave it up to the state, they know their community and nursing homes better than we do,” Goodrich said. She recommended the public use nursinghomecompare.gov to find out more information about a specific nursing home’s safety and quality history.

The list was created to flag nursing homes that have a lengthy track record of falling short on inspections and have failed to remedy the problems in a timely way.

“Such facilities with a ‘yo-yo’ or ‘in and out’ compliance history rarely addressed underlying systemic problems that were giving rise to repeated cycles of serious deficiencies,” according to the CMS website.

Once on the list, CMS inspectors give the nursing home operators from 18 months to 24 months to make recommended improvements. Time extensions may be granted. Failure to improve may jeopardize the nursing homes’ participation in the Medicare and Medicaid programs and the millions of dollars that flow from them.

How the federal government calculates who deserves the closer scrutiny has always been something of a mystery, Lee said. After all, nearly 6,000 nursing homes earned only a one-star or two-star rating out of five on CMS’ own nursinghomecompare.gov, but only about 450 are on this special watch list, he said.

The impact of a nursing home landing on the list “is like dropping the hammer,” Lee said. “When they get on the national hall of shame watch list — more than they dislike the deficiencies, the fines, even the lawsuits. Once they are pegged as a nursing home with a bad name, people will stay away from you.”

New Grove Manor in East Orange, which has been on the list for 14 months, made progress during its last inspection in March, according to the CMS fact sheet.

Cooper River West in Pennsauken “graduated” from the list in February after 20 months of scrutiny. Facilities are taken off the list after they have performed well in two consecutive inspections.

Full Article & Source:
9 N.J. nursing homes may soon be ranked among the worst in the country

Tonight on Marti Oakley's TS Radio Network: Australia Talks Back on Public Guardians

Tonight at 7 pm CST

Our friends in Australia return to discuss “public guardians”. This is another family’s journey through the secretive and corrupt Australian public guardian system.

QCAT: Queensland Civil and Administrative Tribunal.

This is a tribunal NOT a court. They do not rely on evidence.

Information states that they provide a written transcript. This is not provided stating that an audio of the hearing is acceptable. However, the audio versions lack clarity. Reasons are provided on the disc, but because of the lack of clarity, you are unable to challenge the ruling.

Often applications for a hearing in this “court” are filled with suggestive words, false and misleading information. These forms will sometimes be submitted by hospital staff, social workers, solicitors, saying that someone is abusing the person the application pertains to. In one matter there were a number of medical reports stating the person had capacity, the presiding member ignored them all.

Just as it is here in the states, property is stolen, along with cash assets and anything of value. The victim is left languishing in some facility where there is little, if any care given. Residents in care facilities are often denied the continued use of their hands, arms and legs etc. through the use of restraints.

CARE AGENCIES:
Mostly church related….Blue Care is the Uniting church arm.

Anglicare, Centrecare…..the Catholic Church,

BUPA, OPAL…One people of Australia League.

LISTEN LIVE or listen to the archive later

From The Silver Standard’s Elder Abuse Reform Now Project: KEEPING OUR OLDER YEARS GOLDEN

Presently, in this country, all the planning in the world will not guarantee safety in your golden years. However, neglecting to make plans, to have discussions with those closest to you, and to take every legal step possible, does guarantee that you have a good chance of joining the approximately 5 million American citizens who are victims of elder abuse each year, and well as the millions more who suffer the unbearable sorrow of involuntary guardianship.

Twenty-nine states do not have a laws where “elder” is defined as a particular age (usually 60 or 65). Instead, those states limit their protection to individuals who are “vulnerable”, “impaired” or “dependent” adults. This reduces the chance that a case of financial elder abuse (the most frequent form of elder abuse other than neglect) will be prosecuted because district attorneys’ offices are already overburdened—as San Diego Assistant District Attorney Paul Greenwood, the greatest defender of senior citizens, says “the burden of proving the elements of their victim being vulnerable is too high”.

Many more states do not use inclusive enough definitions in defining “deception”, “undue influence” and “intimidation”, thus, making it easier for a slick lawyer to get his abuser client off the hook. Many more do not define those words at all. The most excellent definitions, contained in the Alabama law, can be seen as an addendum to this article.

Many victims of financial elder abuse are elderly women. Most married and raised their families in the 50s, 60s and 70s. Often, in those families, the wife was responsible for the home and children while the husband worked to support the family and took care of all financial matters. Many of these women, now widowed and in their seventies and eighties, despite still being sharp as a tack, may very well fall for a slick sales person with a “sure thing” deal. In addition, science has proven that two areas in the inner cortex of our brains, from which the signals of something suspicious are relayed, begin to diminish as early as in our mid-forties. Another vulnerability.

As a result, a woman like this may well appear to the jury to be as on the ball as anyone else in the courtroom, unless that vulnerability is proven to them That will necessitate a protracted trial of waring gerontologists—something few District Attorneys welcome.

The following is a list of steps you should take (ASAP) in order to arm yourself with the best possible legal protection from financial elder abuse and involuntary guardianship. Then tell those that you have elected to represent your intentions, and whose salaries you pay through your tax dollars, you want laws passed that will protect the elderly population in your state and you want them passed now.

Step 1: INVENTORY

Make a complete inventory of all your possessions and assets. Photographs should be made of homes, furniture, jewelry, cars and any other physical assets you may have. If possible, have all of these items evaluated by a professional appraiser or, the original bill of sale or an accounting of present-day prices of similar items. This should be kept together—one copy held by you, a second copy held by the person to whom you have given your financial Power of Attorney (your agent) and a third person you have chosen as a co-agent.

Step 2: A LAST WILL AND TESTAMENT

Choose a trusted relative or friend as the executor of your will.

If at all possible, make sure you have a lawyer and an accountant lead you through this process which can be more difficult than you might think.

If you prefer to do draft your own will, make sure that the state you live in will honor a will that is not drafter by a lawyer. If they do, take stock of everything you own and make it very clear, in writing, how you want the dispensing of these possessions handled. This includes cash, stocks, and bonds. Have this document witnessed and notarized.

If you still have minor children, choose a guardian for your children and choose someone to manage your children's property.

Your will should also contain funeral and burial instructions

Steps 3 and 4: A LIVING WILL

A living will is not a last will and testament in which you relay the direction of your property after your death. A living will, also called an advanced health care directive, defines your wishes for medical end-of-life care in case there comes a time when you are no longer able to communicate those intentions. If you have not clearly, and legally, stated your intentions all decisions concerning your medical care will be made by others and may be contrary to what you want.

There are various companies who make software to facilitate the ability to execute your own will without the services of a lawyer though some states like Indiana, New Hampshire, Ohio, Texas, and Wisconsin do not accept universal forms; other states, like California, Connecticut, Delaware, Nevada, New York, Oregon, and Vermont, have special requirements for the witnessing of these documents in care facilities. Many states can be very dicey about accepting any will that is not drafted by a lawyer.

If you should choose to go this route, make sure it is tailored to your state requirements. Different states have different requirements.

At the EARN Project, we have seen, even the best lawyer-drafted, directives, wills, trusts and Powers of Attorney disappear as though they had never existed under the heavy hand of an uncaring judge or guardian. For this reason, we believe all of the preparations you make for your protection, should you become incapacitated, and the direction of your estate, after your death, should be drafted by a lawyer. It does not appear to us that the drafting of these documents, so important to your well-being and your estate, is the place to pinch pennies.

We also suggest that you combine a Durable Power of Attorney (DPOA) for health-care into your living will. This delegates a loved one, or trusted friend, to oversee your wishes concerning end-of-life treatment. This person can also make decisions should there be an incident that is not covered in your living will or medical directive.

You should obviously choose the person you trust most, who really will listen to you and who is able and willing to agree. Remember, you are putting your life in that person’s hands and there may be times when they will need to stand up against family, doctors, and bureaucracy in order to protect you and your wishes—you need to feel sure this person, against all odds, will be your greatest defender. You might also consider a second person who can step in should your chosen agent be unavailable in a time of emergency. DO NOT, say all those in the know:

Choose any of your doctors, anyone who is responsible for evaluating your mental or physical capacity, anyone connected to a healthcare facility, or assisted living facility, that you use, anyone who works for any government agency participating in any part of your care, or anyone that a court has already designated as a guardian/conservator for you .

The ABA also recommends you not choose any person who holds the POA for the health care of more than 10 people.

It is imperative that you be very specific about your wishes concerning end-of-life treatment. We assume you will want all measures taken to prevent pain and suffering but you may not want “extraordinary measures”, in which case you would include a “Do Not Resuscitate” order. Or you may wish to leave that decision to the holder of your medical DPOA in conference with your doctor. Or, you may want to state under what circumstances you would or would not want such treatment. You may want to assign a third party who must co-sign all extreme-measures orders for them to be initiated.

It is very important, no matter how much you trust the person to whom you have given your medical POA, to make clear what they do and do not have the right to decide.

One of the stories told in the he documentary, The Unforgivable Truth, produced by The Silver Standard news tells the story of Mercedes Kibbee. Having broken her hip, Mercedes entered a nursing home to receive care until the hip was mended and she could return home. An heir to her estate—a person so highly trusted by Mercedes that she had given them her medical POA—gave that nursing home a “Comfort Care Only” order. Under this order, if Mercedes had developed a small ailment, easily treated with antibiotics and from which she would have recuperated without ill effects, the nursing home was forbidden from administering this curative medication. 85 years old Mercedes almost certainly would have lost her life. In fact, she almost did. Remember, once you sign over your power to someone else, if that person restricts you access to others (especially to a lawyer), you will have no way to revoke that POA.

Depending on a person’s wishes, a living will can go into effect upon its signing, but unless that person is unable to communicate, a reputable doctor is not going to rely on a document when he can talk directly to his patient. A living will can also be revoked at any time by simply destroying the original as well as any copies you may have given to others.

Step 5: DURABLE POWER OF ATTORNEY FOR FINANCES

As in the medical Power of Attorney, there is great potential for misuse of a financial POA. Choose your agent very carefully.

We also recommend that you delegate a third party as a co-agent who is required to approve, and sign, all large financial transactions. In addition, as the primary agent will have free rein on your finances, it should be mandatory that a yearly accounting of all activity be provided to this third party.

In your will, clearly define the gifts you wish to give and the manner in which you want them given—a one-time gift or multiple gifts over a specific time frame. In both your will and your Financial POA document it is also wise, to make provisions for gifts you might want to give. For example, if you are incapacitated and you have wonderful caregivers, you may want to make it possible for gifts of up to a designated amount be given to those people. In the Financial POA document you may also want to allow your agent to continue your pattern of giving to charities, in designated amounts and frequency, if you are incapacitated.

You may want to consider including an order stating that, as of the date of signing of your financial POA, no gift of more than X (you decide on the amount) may be made by anyone. This can build a fire wall between you and a crafty abuser.

You may also consider, as of the signing of your financial POA, limiting anyone’s ability to replace existing lawyers, brokers, money managers, and accountants without proof of misconduct. This is a good defense against an agent gone rogue and another firewall between you and a crafty abuser.

Remember, even the most trustworthy of individuals, under difficult circumstances, can succumb to temptation—especially when the temptation is money that could get them out of a tight spot.

Step 6: DECIDE IF YOU WANT TO NAME A GUARDIAN
 
Should you become incapacitated, your living will speaks for you concerning your wishes about medical care and your durable power of attorney insurer's proper oversight of your financial interests.

Even if you have both of these documents in place, you still may need someone else to make, or help make, decisions about your personal life: where you will live, whether caregivers need to be hired, etc. Sometimes this person can be the same person who is your health care POA holder, but sometimes that person does not have the required amount of free time to manage all your affairs.

The decision about whether to name a guardian/conservator or not, is a very personal one. It should be made only after through discussion with family. A possible arrangement could be a co-guardianship that includes your health care agent and one other individual who lives fairly close by and has the time.

It is impossible to give advice on this matter. All we will say is, while making this decision, just remember that the worst thing that can happen to you is to have a court appointed professional guardian.

Step 7: TRUSTS

When making your will, you may want to consider creating trusts for your heirs. Each family situation is different, but this is certainly worth a discussion with your lawyer and accountant as it may save a bundle in inheritance tax—especially if you have a small family business or farm.

If you have heirs who are already financially secure, but you wish to make the gesture of leaving behind a gift for them, consider a Charitable Remainder Trust. It is an irrevocable trust that will pay out on a monthly basis for their life time. Upon their death, the principle goes to a charity in your name. If they are still young, look into a Charitable Lead Trust, which is the inverse of a Charitable Remainder Trust—it will provide financial support to one or more charities in your name until the beneficiary reaches a designated age at which time the remaining assets go to the beneficiary.

DEFINITIONS USED BY THE STATE OF ALABAMA IN THEIR EXCELLENT FINANCIAL ELDER ABUSE LAW

DECEPTION: Deception occurs when a person knowingly:

1. Creates or confirms another's impression which is false and which the defendant does not believe to be true.
2. Fails to correct a false impression which the defendant previously has created or confirmed.
3. Fails to correct a false impression when the defendant is under a duty to do so.
4. Prevents another from acquiring information pertinent to the disposition of the property involved.
5. Sells or otherwise transfers or encumbers property, failing to disclose a lien, adverse claim, or other legal impediment to the enjoyment of the property, whether that impediment is or is not valid, or is not a matter of official record.
6. Promises performance which the defendant does not intend to perform or knows will not be performed.

(6) INTIMIDATION: A threat of physical or emotional harm to an elderly person, or the communication to an elderly person that he or she will be deprived of food and nutrition, shelter, property, prescribed medication, or medical care or treatment.
(9) UNDUE INFLUENCE: Domination, coercion, manipulation, or any other act exercised by another person to the extent that an elderly person is prevented from exercising free judgment and choice.

Full Article & Source:
From The Silver Standard’s Elder Abuse Reform Now Project: KEEPING OUR OLDER YEARS GOLDEN

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