Editorial: Commission needs to dig deep into guardianship travesty

It would be impossible for a special commission — appointed by the New Mexico Supreme Court to review and recommend changes in the state guardianship system — to ignore shocking recent allegations of outright theft by guardians and conservators.

These are the same guardians and conservators who are appointed by judges to protect some of our most vulnerable residents — the elderly and disabled.

When federal investigators describe a commercial guardian company like Ayudando Guardians Inc. as “permeated by crime,” it would seem even the most ardent defenders of the system would have to take notice. Remember, Ayudando was appointed in hundreds of cases and represented the professional guardians at one commission hearing.

Such cases highlight obvious areas in need of reform. The courts have no forensic auditing capability, there are no meaningful financial reporting requirements, no requirement in state law for guardians and conservators to post bond and no place for families to complain.

 But the commission and court also need to look at other, more subtle, problems in a system that lacks meaningful oversight even though it is susceptible to corruption.

Consider these scenarios, based on real-life examples from the Journal’s ongoing investigation:

1. You are struggling with how to care for a parent whose mental faculties have deteriorated. You temporarily put Mom in a care facility, then decide to bring her home. But caregivers and attorneys who make a living in this system urge you to petition for a guardianship. It will be so much less stress, they say. The professionals can handle it so much better, they say. You can go back to being son or daughter. They might even privately urge Mom to tell you that’s what she wants. The pressure is subtle and they don’t mention, of course, that this is their source of income.

2. You concur and petition for a guardianship. A judge declares Mom or Dad incapacitated and appoints a guardian and/or conservator. But a year or so later you aren’t happy with the care Mom’s getting and you think the charges racked up by the professionals — and taken from Mom’s assets — are excessive. Conservators and guardians have virtually no check on their spending other than possible after-the-fact review by the judge. You object. But they dismiss your complaints. You have nothing to say about this any more.

3. You can’t even discuss these issues with Mom. It “upsets” her, says the guardian. In fact, so much so they can cut you off from Mom. Totally. Without judicial approval. Visits, if allowed, will be “monitored” for content.

4. You go back to your attorney for help. Ooops. He/she can’t help you because he/she represents the guardian and/or conservator in other cases. This is, after all, an industry dominated by insiders.

5. The guardian and/or conservator fight your efforts for removal and even cut off your visitation. They, after all, are empowered by the court. And they pay their lawyers who are fighting to keep you away from Mom out of — you guessed it — Mom’s estate. And they don’t need advance court approval for this.

6. You’ve found a new lawyer and started over. But it’s an uphill battle. You will be portrayed as the shrill and “emotional” family member by industry insiders and their lawyers, who are smooth and polished before the judges they know well and who defend them publicly.

7. You dig into your own pocketbook and the guardian and/or conservator finally relent. OK. You can see Mom and maybe they will even agree to step aside and allow appointment of another firm. But part of the price to end the legal war is a “side” agreement in which you promise never to criticize the company or even acknowledge the existence of such an agreement.

8. You’ve had running disputes with the conservator but really want the estate settled now that Mom’s gone. You’re asked to sign a document releasing the conservator from all liability and, likely, a promise you won’t criticize. But you want a real accounting? You may have to post a significant bond — even though guardians and conservators typically in New Mexico haven’t been required to do that when they take over your loved one’s estate and finances.

The initial reaction by some District Court judges in Albuquerque to family complaints — Judge Shannon Bacon being a notable exception — was one of denial. Nothing to see here. Move along.

But that’s not possible now with law enforcement accusations of millions of dollars stolen from protected wards by court-appointed guardians such as Ayudando.

Yes, there are some obvious reforms. And as noted in today’s Page 1 story by investigative reporter Colleen Heild, Bernalillo County district judges have begun taking important steps.

But to fix the structural problems that have allowed this abuse of people and their assets, the commission and the Supreme Court will need to dig a little deeper into the decay that has allowed these problems to flourish.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

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Editorial: Commission needs to dig deep into guardianship travesty

Two arrested in Volusia elderly exploitation case, third sought

"They are the epitome of what a scumbag is, to go after your grandparents," Sheriff Mike Chitwood said.

Click to Watch Video

Investigators in Volusia County are have arrested two of three people, including the granddaughter of a victim, in connection to an elderly exploitation case.

Candyce Nesheim said thieves broke into her Gardenia Avenue home and ransacked the place while she was away in July.

Nesheim said the thieves cut a screen, shattered a window and stole a television, tools, money and precious heirlooms.

Deputies with the Volusia County Sheriff's Office said surveillance images from a local pawn shop showed Matthew Hall with some of the stolen items but said Albert Blackburn was the actual thief.

The pair were living next door to the burglary victim at the home of an elderly couple.

Deputies said they'd been invited in by the couples' granddaughter, Mary Hall.

"They are the epitome of what a scumbag is, to go after your grandparents," Sheriff Mike Chitwood said.

Chitwood said police found out the three were exploiting the seniors, getting money from the couple through threats and intimidation.

"To basically eviscerate these folks in their golden years, to destroy their money and their sense of security," Chitwood said.

Sheriff's Office investigators said the elderly couple lived in such fear of their granddaughter and the two men she allegedly brought into their home, they lost significant weight, their health deteriorated and they are now in an assisted living facility.

Investigators said the suspects have since disappeared after Mary Hall allegedly stole her grandparents' car, but they've spotted her out of state on social media.

"Now she's set up a GoFundMe account claiming she needs money to get to Florida to take care of her elderly grandparents," Chitwood said.

Investigators said the only people the suspects were helping were themselves.

Albert Blackburn and Maria Hall have been arrested in North Carolina.

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Two arrested in Volusia elderly exploitation case, third sought

Fight over right to sue nursing homes heats up

Consumer groups are making a last ditch effort to stop the Trump administration from stripping nursing home residents and their families of the right to take facilities to court over alleged abuse, neglect or sexual assault.

The Centers for Medicare and Medicaid Services (CMS) announced plans in June to do away with an Obama-era rule that prohibited nursing homes that accept Medicare or Medicaid funds from including language in their resident contracts requiring that disputes be settled by a third party rather than a court.

Public comments on the CMS proposal to do away with that rule are due Monday, and groups are urging the agency to reconsider.

More than 75 consumer, health and advocacy groups have come together to form the Fair Arbitration Now Coalition to stop CMS from reversing what they claim is a critical protection for the elderly.

Remington Gregg, counsel for civil justice and consumer rights at Public Citizen, said the rule change is not only unnecessary, but shameful.

Gregg said the provisions, known to lawyers as pre-dispute arbitration agreements, create an unequal balance of power between the nursing home and its elderly patients or the family members caring for them.

“When you are trying to get someone in a nursing home, often time it's stressful or an emotional time. Often times loved ones can’t take care of themselves, so for a nursing home to say in order to get in you have to waive your right is shameful,” he said.

“We’re talking about everything you may have a problem with — abuse, neglect, sexual assault, a wide variety of things — they are now saying you are waiving your right to full justice.”

CMS said it decided to reconsider the rule after a federal district court judge in Mississippi issued an order in November temporarily blocking the rule from taking effect.

The American Health Care Association (AHCA) and a group of nursing homes had sued CMS and the Department of Health and Human Services in October, claiming that the rule violated the Federal Arbitration Act and that the agencies had overstepped their statutory authority in issuing the law. The AHCA said Congress has repeatedly rejected legislation to invalidate arbitration agreements.

In June, the federal judge agreed to the parties’ joint request to put the case on hold while CMS revises the rule.

Under its proposed revisions, CMS said nursing homes would be required to write the arbitration agreements in plain language and explain the agreement to the prospective resident or his or her representative. Residents would also be required to acknowledge they understand the agreement.

The U.S. Chamber of Commerce is also backing the rule change. The nation’s leading business group fought against the original rule, claiming that restricting arbitration would raise the cost of nursing home care and make it harder, and more costly, for residents to resolve disputes.

“For many individual disputes, litigation in court is simply impractical. Litigation in court is procedurally complex, which means that non-lawyers need legal representation to have any hope of successfully navigating the system,” the chamber said in 2015 comments to the agency it provided The Hill.

“But many plaintiffs’ claims are too small to justify paying a lawyer to handle the matter and, in any event, most people do not have the resources to do so.”

The AHCA did not comment but provided a fact sheet outlining its position, which said arbitration is faster and cheaper than litigation. It also claimed there's no limit on the monetary award that residents can receive.

The Fair Arbitration Now Coalition, though, is making a full-court press to save the rule.

AARP, which is part of the coalition, argued in comments it submitted to CMS on Thursday that the agency lacks the statutory authority to eliminate a protection that was properly written.

“To the extent that CMS may be relying on the authority to promulgate regulations ‘to promote the effective and efficient use of public moneys’ the regulations still need to be for the benefit of Medicare and Medicaid nursing facility residents and not to their detriment,” wrote the nonprofit group for Americans 50 years and older.

In its proposal to revise the rule, CMS said “upon reconsideration,” it believes “that arbitration agreements are, in fact, advantageous to both providers and beneficiaries because they allow for the expeditious resolution of claims without the costs and expense of litigation.”

But AARP claims that statement contradicts evidence the agency cited in 2016 when it issued the rule.

Carolina Fortin-Garcia, a CMS spokeswoman, said the agency will respond to public comments received when it issues the final rule.

Opponents of the rule change are also weighing legal action.

Gregg said it’s never a good idea to threaten litigation but that Public Citizen will explore all of its options if CMS ultimately decides to allow arbitration agreements in nursing home contracts.

“Any agency action must meet a high bar for ensuring the action taken isn’t arbitrary and capricious,” he said.

“Simply making the argument that we are a new administration and want to make sure corporations don’t have regulations that are forcing them to be accountable is not a good enough reason to change a rule that underwent extensive review."

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Fight over right to sue nursing homes heats up

Jury hits lawyers with $16.4M for doing senior wrong in guardianship

Advocates for guardianship reform clamored in vain for years that Florida’s system failed to properly protect incapacitated seniors, that its primary purpose had been perverted to line the pockets of greedy attorneys and professional guardians with the hard-earned life savings of the elderly.

Now they can point to a new federal verdict awarding a whopping $16.4 million in a lawsuit claiming that two West Palm Beach attorneys breached their fiduciary duties while running up “unnecessary and excessive fees” of $1 million.

“It’s really kind of a landmark case,” said Julian Bivins, who brought the suit as the personal representative of the estate of his father, Oliver, a Texas oil man. “It sends a message to these unscrupulous lawyers and guardians that they are not going to be able to get away with it anymore.”

The Bivins guardianship case emanates out of the court of Circuit Judge Martin Colin, the subject of an investigation by The Palm Beach Post into the judge’s conflicts of interest because his wife is a professional guardian.

Colin in open court had heaped praise on the attorneys who lost the case and refused to hold a hearing to decide whether the attorneys had “secretly” kept money from the sale of one of Oliver Bivins’ properties in an escrow account for more than a year, according to court documents.

The Post’s award-winning series featuring Colin, Guardianships: A Broken Trust, resulted in an overhaul of guardianship rules in Palm Beach County. Colin retired last December after he was transferred from the Probate & Guardianship Division because of The Post’s reporting.

Weeks after The Post published, Julian Bivins filed a motion to disqualify Colin, saying his concerns about the “close-knit atmosphere of the Guardians, their attorneys” and Colin had been “glaringly brought to light” in the stories.

Retired Judge Martin Colin

Held captive? 
The younger Bivins said he felt his father was “held captive” in South Florida by the guardianship so the attorneys could liquidate real estate assets — including a New York City Upper East Side mansion — and charge more fees. Colin granted an emergency order prohibiting the senior from returning to Texas.

The jury found on July 28 that attorneys Brian M. O’Connell and Ashley N. Crispin of the Ciklin, Lubitz & O’Connell firm not only breached their fiduciary duty but committed professional negligence.

The lawsuit claimed they failed to get appraisals on two high-end New York City properties being divided among family. They were not of equal value and as a result, Julian Bivins ended up with one that was worth millions less than other.

The jury’s decision to award $16.4 million makes up the difference.

But the fight over the property is far less important to reform advocates than the fact that attorneys who carry out the wishes of professional guardians and are paid with the ward’s money were held accountable.

Oliver Bivins died at age 97 in March 2015. He ended up in the court-ordered guardianship when he visited his condominium in Palm Beach in 2011 and a social worker became concerned with his well-being, according to court documents.

 

Oliver Wilson Bivins Sr. passed away at age 97 in 2015 but his son continued to fight the professional guardian who ... read more

 

Oliver Bivins appeared to be coming to Florida for a weekend vacation, leaving his refrigerator in Texas fully stocked, plaintiff attorneys told the jury. His son said he often didn’t visit his Palm Beach condominium for years at a time.

The verdict takes a further step toward re-establishing that attorneys are supposed to represent the incapacitated ward, not the court-appointed professional guardian — a position many lawyers have argued in court to thwart families trying to rein in a fee frenzy.

“If it wasn’t for me, they would have completely depleted my dad’s estate,” said Julian Bivins, who now lives in Palm Beach. “I’ve been fighting them from the beginning to just get him back to Texas. Finally, I got him back there 35 days before he passed away.”

As with many family members who challenge the status quo in guardianship in Palm Beach County, Julian said he found himself relentlessly attacked in court. He was even sued by one of the guardians in the case, Curtis Rogers.

The biggest toll, he said, though, was his relationship with his father as Rogers told the elder Bivins that his son only wanted his money. “He turned my dad against me,” Julian Bivins said. “I could never explain to my father how he was being held for ransom, how they wouldn’t let him go.”

The Ciklin firm said it is confident it can prevail on post-trial motions in front of U.S. District Court Judge Kenneth Marra.

“We think the verdict was not in keeping with the law or the facts and, in fact, was considerably more than the plaintiff even asked for,” said Alan Ciklin, the firm’s managing partner. “We feel pretty good about our ability to have this reduced dramatically.”

Rogers, one of two professional guardians dismissed as defendants in the lawsuit, testified for more than two days at the trial. He told The Post he believes the younger Bivins financially took advantage of his father. “The verdict was a total shock to me,” he said. “I anticipated there was no way that type of verdict could be made.”

+

It may come as a shock to Judge Colin, as well.

Colin during a Feb. 3, 2016, hearing in the guardianship case bristled at the suggestion that the Ciklin Lubitz firm was not acting as a good custodian of Bivins’ assets. The senior’s son questioned why the firm had failed to turn over $472,000 from the sale of his father’s commercial property in New York City, requesting Colin refer their actions to the Florida Bar or keep them from holding onto the money.

“The Ciklin Lubitz law firm has a well-earned reputation of honesty. And this is honesty,” Colin said in court. “Not for a moment do I have any concern because their reputation is well-earned in this respect.”

Colin denied Julian Bivins’ request without hearing any evidence but ordered the firm to return about $400,000.

An attorney for Julian Bivins filed a motion to disqualify Colin because of those statements, but the judge denied it.

“We never got anything done in his court,” Julian said. “We complained about the amount of the fees and he (Colin) cut them down 25 percent, but then we had to pay their fees for them to defend those fees. So they just made it back.”

Guardianship Catch-22 
It is in this Catch-22 that families often find themselves when trying to decide whether to fight unethical actions by a professional guardian: Either way they pay, and either way the lawyers’ wallets grow fatter.

The guardianship issue is being looked at by a task force formed by Florida Supreme Court Justice Jorge Labarga. The state Legislature established the new Office of Public & Professional Guardianship as a result of lobbying by advocacy groups and others about lawyers and guardians siphoning off fees.

Attorney Greg Coleman, past president of The Florida Bar, wrote to the work group in June to alert it to “inappropriate, improper and illegal activities of a very small number of Florida attorneys” practicing in the guardianship arena.

“Unfortunately, the way guardianship statutes and rules are currently constituted allows for a window of exploitation by bad attorneys and bad guardians for their own personal monetary gain,” said Coleman, who was not associated with the Bivins guardianship or any of the relating litigation.

Coleman said everything is moving in the right direction for seniors. “The issue has the (Florida Supreme) Court’s attention, I can tell you,” he said. “It is not something that is being ignored or swept under the rug.”

Oliver Wilson Bivins Sr. was an oil man whose family were pioneers in Amarillo, Texas. He visited his Florida condo infrequently ... read more

 

Dominoes falling? 
Attorneys who represented the Bivins family — Charles D. Bavol and Ron Denman of The Bleakley Bavol law firm in Tampa — compared the trial to a climactic brawl from the movie Rocky. The Ciklin defendants knocked out their expert witness and cited attorney-client privilege in refusing to turn over crucial emails between the Ciklin lawyers and the guardians. The son’s testimony persuaded the jury, his lawyers said.

“What the defendants did in this case was wrong,” Denman told the jury. “It was legally wrong, what they did was ethically wrong, and what they did was morally wrong.”

Bavol and Denman said the verdict builds off a 2015 state court appellate finding out of Palm Beach County, ruling that the guardianship attorneys’ duty is to the incapacitated adult, not the professional guardian.

The 4th District Court of Appeal in recent years has reined in circuit courts in Palm Beach County that reform advocates say patently favor professional guardians and their attorneys.

Bavol and Denman said the verdict underscores the need for accountability from guardians and their lawyers.

“Based on this significant jury verdict and the ongoing investigative journalism in Southern Florida concerning professional guardianships, the need for reform of the guardianship system to protect Florida’s elderly citizens is again underscored,” the lawyers said in a news release.

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Jury hits lawyers with $16.4M for doing senior wrong in guardianship

The Abduction of Anastasia Adams

Day 168 – I’d Bet Money On It

(Anastasia and me in 1969. Picture taken by our mom to send to our
dad who was fighting in Vietnam)

AUG 3, 2017 — It has been 168 days since my sister Anastasia was forcibly abducted into an unethical questionably legal guardianship by Inova Fairfax Hospital, and their designated guardians; 168 days since she has been outside and seen the sky or felt the sun on her face because she is forbidden to go outside.

I saw Anastasia today. She is still looking a little pale, is still under weight, and she has not opened her eyes since Friday. (On Friday I was horrified to see her left eye had a bunch of goo in it and the right eye was red). She tried to open them through the visit but was unable to get them open more than 1/4" before she had to close them again. Her pupils were rolled up. When she was able to keep her pupils level I could see her eyes were extremely red. I would bet $50 she has pink eye or a similar eye infection. It appeared the facility knew nothing of this even though it was stated she had not opened her eyes for them the last couple of days.

I have been allowed to give her a kiss and hug at the beginning and end of each one of the 3 hour visits. You can see on her face that she needs this and today she got the sweetest smile on her face after I gave her the kiss and hug. I was told by the facility that this could all go away if Labowitz gets another call from APS or if I complain about injuries. I won't comment on that right now.

I have had several nightmares about my sister in the past week. I still am not sleeping well. I don't believe she is either, she had dark circles under her eyes that almost looked like black eyes.

I miss not having my sister at home. Everything is off in every area. Anastasia should be home sleeping in her own bed.

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The Abduction of Anastasia Adams

Woman pleads guilty to bilking elderly Chicago man out of $4.5 million

CHICAGO (AP) - A woman has pleaded guilty to federal charges she bilked an elderly suburban Chicago man out of about $4.5 million over six years.
 
Corrine Dziesiuta entered her guilty plea Thursday to three counts of fraud.
 
The 39-year-old Dziesiuta was accused of persuading the 87-year-old Palatine man to wire funds from his U.S. bank account to banks in Nicaragua and Costa Rica. She told him he'd won millions of dollars in prize money but needed to pay insurance, taxes, and fees.
 
The FBI recorded 27 telephone calls between the victim and Dziesiuta in 2016. She was arrested after making arrangements to fly him to New York so he could deliver a check for more than $3.7 million.
 
Dziesiuta faces up to 6½ years in prison when sentenced in October.

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Woman pleads guilty to bilking elderly Chicago man out of $4.5 million

A Green Bench for Willie

Jane Barr, Heather Riley & Willie Berchau

Publisher’s Note: The story of Willie Berchau and his ordeal as a ward of a professional guardian is sad, complicated and just one example of how the elderly can be abused. Thank goodness for the people who fought to help him. This is an updated version of the printed story.

A green bench, reminiscent of those that lined the streets of St. Petersburg for 50 years in the 20th century, was dedicated to “Willie” Berchau at the Fountains in S. Pasadena in early July.

It was a synergistic event whose participants included a volunteer for a program that advocates for the elderly, a former mayor with a passion for green benches, a local wood craftsman, a reverend, and a number of caring friends who loved Willie.

The story began in 2011 when Jane Barr, a volunteer Florida Long Term Care Ombudsman was assigned to Willie,97 at the time, after he became a court-appointed ward of a professional guardian. Jane visited him at the Fountains where he lived and was puzzled.

“I can’t figure out why this man at 97 years old even had a guardian because he does everything for himself, he knows everything, he speaks four languages,” she recalls.

Willie was a Lutheran so Jane introduced him to her friends Heather and Jimmie Riley so they could all go to church together. Willie and Jimmie both had railroad careers and the they all hit if off. They and other acquain- tances visited Willie often and even hosted a 99th birthday party for him at their home in 2013.

Later that year his guardian had him placed in an Alzheimer facility despite evidence that it wasn’t warranted.

Jane, Heather and Jimmie were horrified. Willie’s pastor recalls visiting and said it was pathetic to see him there. They wrote countless unanswered letters to the judge and even the governor, then finally enlisted the help of State Senator Jeff Brandes who heard Willie’s story, visited him immediately and got a lawyer to help.

They also told their story to ABC Action News and after a piece aired about his plight, he was moved to a less restrictive area and after six months in the facility he was allowed to move back to the Fountains.

Meanwhile Fountains’ resident and former S. Pasadena Mayor Dick Holmes, had been working on a book about green benches and read a news article about a local craftsman Flash Williamson who was making them. Holmes called, they talked, became friends and Holmes started buying the iconic benches for the Fountains complex.

Williamson, who owns Green Benches & More in Clearwater, started building benches in 1983 at the request of a client who had one of the originals from the city. The customer wanted some made for his mobile home community in Dunedin and brought the bench to Clearwater. Williamson made a template, built the benches out of pressure treated pine, and that was that… or so he thought.

Friends of Willie dedicated bench

“In 1987 he called me, and I recognized his voice immediately,” said Williamson. “He said, ‘Remember those benches you built for me?’ I said, ‘Yes,’ thinking there was something wrong with them. He said, ‘Well I need five more.’”

He built the benches and decided during the economic slowdown of 2008/9 to experiment to find other more resilient materials and settled on recycled plastic. He put one in front of his store where it gets hit with direct sunlight and it didn’t need maintenance, it didn’t even accumulate dirt, and he was reducing waste by recycling. “It was fantastic, so I thought why not emphasize the “green” in the green bench.”

This green bench, crafted by Flash Williamson of Green Bench & More in Clearwater, was purchased by Jane, Heather, Jimmie and Willie’s family. Friends gathered and dedicated it to former resident Willie Berchau in early July.

Fast forward to 2017 and Holmes is having plaques made for the benches to commemorate the 100th anniversary of their introduction to the city in 1917 –Jane, Heather, Jimmie and Willie’s family bought a bench and arranged to have it dedicated to Willie–and that is how a group of previously unassociated people ended up toasting to Willie and his bench by the pond in front of the Fountains. Willie passed away at 101 in 2015.

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A Green Bench for Willie

Jailhouse call from suspect accused of exploiting the elderly leads judge to delay granting bond

CLEARWATER, Fla. - Professional guardian Fernando Gutierrez was charged last month with financially exploiting seniors through power of attorney or health care surrogate agreements.

He couldn't use the money from his business bank accounts to pay bond, because prosecutors thought that money may have come from victims.

The call for help Guitierrez made from jail made the judge suspicious as well.

Prosecutors allege professional guardian Fernando Gutierrez stole hundreds of thousands of dollars from vulnerable seniors he was supposed to protect.

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Jailhouse call from suspect accused of exploiting the elderly leads judge to delay granting bond

The 17 Worst Nursing Homes in PA

Nursing Home Compare, run by the federal government, is considered the best available source of quality-related information about nursing homes.

It uses a five-star rating system. Five star homes are considered the best, one star homes are considered the worst.

Click [the source link below] to see the midstate homes with one-star ratings as of late June or click here to read more about problems in Pa. nursing homes.

Source:
The 17 Worst Nursing Homes in the Midstate