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NASGA is a public interest civil rights organization founded by several victims and for victims of unlawful and abusive guardianship and conservatorship cases. Please visit our website at www.StopGuardianAbuse.org for more information on how you can help stop guardian abuse.

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    Affectionate insight into being old today. Source: Golden Oldies

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  • 07/03/17--23:30: Happy July 4th!

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    Ellen Waldman
    Here’s what happened with June. June’s niece, who was her health care representative, died unexpectedly. June lived in a memory care facility, had no other family, and now had no one who could be her voice and advocate for her health care needs. It was too late for her to fill out a new advance directive (AD), as she no longer had the cognitive capacity to understand this document.
    What needed to occur was that someone had to be appointed as her legal guardian, and she would then be a “protected person.” Guardianship is a legal relationship, designed to protect incapacitated individuals and promote their well-being.

    If someone you know gets to this point, and either has no AD or cannot alter the one they do have, this outcome could affect them as well. Additionally, there are circumstances, even with an appropriate AD in place, where a guardian still needs to be appointed. One such case might be upon admission into a memory care facility. Some, but not all, require this document be in place prior to or soon after moving into their residence. The reasons for this are varied, but in general, it gives authority to this legally appointed guardian to place their protected person into this facility.

    An AD does not really give anyone the right to move a person from wherever they’re presently living into a care facility, be it skilled nursing or dementia care, if they don’t want to move. Someone who is incapacitated by dementia might very well not understand or agree with what their care needs really are. However, a guardian has the right and the responsibility to be sure that their person’s medical and housing needs are well met.

    Here’s some edited information from the state of Oregon with regards to being appointed a guardian. The term “protected person” refers in this case, to the person with dementia.

    A guardian undertakes serious duties and responsibilities that are required by the laws of Oregon.

    Chapter 125 of the Oregon Revised Statutes governs guardianships and outlines those responsibilities (www.oregonlegislature.gov/bills_laws/ors/ors125.html). A guardian must:

    • Follow the laws about being a guardian.

    • File a guardian’s report every year.

    • Get court approval before using the protected person’s funds for room and board.

    • File a statement with the court and notify the protected person before placing an adult protected person in a residential facility.

    Here are some additional details of how guardianship works, and what guardians are permitted to do and expected to address. A guardian is appointed when a petition is filed, a court hearing is held, and the court determines, based on the evidence presented, that the individual is incapacitated according to the law of that state, and guardianship is appropriate. The guardian is appointed by a circuit court judge to manage the affairs of the protected person who is too incapacitated to make decisions on their own. The guardian makes decisions about personal health, programs, medical care, residence and release of confidential information. A guardian can also arrange for the protected person’s care and maintenance, training and education, and advance funeral and burial needs.

    There is a lot more to know than this information provides, but this is meant to be an overview of this important legal appointment. You must work with an attorney for this to be enacted, often an elder law or estate planning attorney. This is not an inexpensive process, and legal fees plus filing fees can add up to a couple thousand dollars.

    We have many excellent attorneys here in Ashland who are quite capable of helping you with this process. There is at least one practice in town, the law offices of Robert Good and Sarah Vaile (www.goodashlandlaw.com; 541- 482-3763) who offer a reduced-rate to establish a guardianship that is necessary for placement in a memory care facility. You might check with others as well.

    Hopefully, this will not be a process you will have to experience first-hand, but knowing what might lie ahead is always helpful. Meanwhile, be sure your AD is up-to-date and current both with your wishes and the person you chose as your representative. For most people, the AD works quite well for the duration of their lives.

    — Ellen Waldman is a certified Aging Life Care Professional. Submit questions about aging and Ashland-area aging resources and column suggestions to her through her website, www.SeniorOptionsAshland.com.

    Full Article & Source:
    Aging Happens: What you need to know about guardianships

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    WSMV Channel 4 NASHVILLE, TN (WSMV) - An attorney with a troubled history has now had his law license taken away.

    The Tennessee Board of Professional Responsibility has disbarred Thomas H. McKinnie Jr.
    The board said he stole nearly $200,000 from a child's trust fund.

    McKinnie once had law practices in Williamson, Rutherford and Davidson counties, and gave legal advice on his own YouTube channel.

    But one family who trusted McKinnie with their estate planning didn't fare so well.

    According to the Tennessee Board of Professional Responsibility, in 2012, McKinnie set up a bank account for the estate of Dorothy Hunt of Franklin.

    Over a two-year-period, the board found, McKinnie emptied the account. The board said McKinnie "wrote checks to himself from the trust account in the total amount of $196,459."

    The account had been set up for a relative named Carrie Smithson. She was just a child at the time.

    The money was supposed to help pay for her education, but when it came time to pay her tuition bill, there was no money left and she had to withdraw from school.

    The board took away McKinnie's law license on June 30, saying the "brazen theft demonstrates a dishonest and selfish motive."

    They took the strongest possible action – disbarment.

    They cited McKinnie's prior problems. He's had his law license suspended three times since 2011 – twice for financial irregularities involving client's money.

    In 2011, McKinnie was suspended for two years for improperly moving trust fund money to his own account.

    In 2013, he was suspended again for two years for trust fund irregularities.

    In 2015, McKinnie was once again suspended, this time for a year, for misleading a client.

    Channel 4 was unable to reach McKinnie; his law office phone number is disconnected.

    Full Article & Source:
    Attorney disbarred for allegedly stealing from minor's bank account

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  • 07/04/17--23:00: Ginger
  • Ginger & Mary Ann
    I didn’t know Ginger when she took a fall down the stairs in her home. They say she suffered brain trauma. Her elderly aunt – her only relative – couldn’t take care of her, so was advised to “conserve” her.

    If you don’t know what it means to be “conserved,” here it is in a nutshell:

    The courts take over your home, your possessions, your bank accounts, and your life. You no longer have autonomy, or agency over yourself.

    Now, in a perfect world this would all be handled responsibly and with respect for the citizen being conserved; the intention would be to get them back to health and off conservancy. But this world is not perfect.

    When Ginger was conserved, the court immediately took over her home, her car, and her bank accounts. She no longer had any rights as we know them. The court put her in what’s called a “group home.” Within the first six months, rather than seek Ginger’s restoration to health, the court sold her condo, raided her money, and her car disappeared. The car was later found parked in front of the Conservator’s office. Some say it was given to the Conservator’s son.

    I heard about Ginger when I was advocating for a friend who it seemed had been wrongfully conserved. I learned that not only was she living in a group home, she was also in charge of dispensing medications to the other residents. Ginger was managing the home for the owners. The owners – who did not live there, and rarely showed up – got paid by the state. Ginger was paid nothing.

    The day of the rescue we pulled up to a modest brick house. Ginger was waiting for us.

    We moved quickly to get the car loaded up with her few possessions, because we were concerned that “someone” might catch us. And she was still “owned” by the state. Before we left, I told her to take pictures of her bedroom. She no longer had the beautiful bedroom suite from her townhome. Now she had a mattress on the floor, and her clothes were kept in a cardboard box and plastic drawers.

    I took Ginger home with me and moved her into the blue bedroom. I watched her shoulders drop, heard her laugh, and that helped me know I’d done the right thing.

    There was yeoman’s work to get her conservancy stopped, but I took on the job alongside Ginger … researching, making copies of documents, appearing in court on her behalf. In fact, my ass was in the crack now too, because I’d officially “kidnapped” a ward of the state.

    Within the next few months, we went to court several times, and finally extradited her from the state’s control. One expert told us he had never seen that happen. “Once the state owns you, they pretty much always will.”

    Ginger began the grueling work of building her life back. She no longer had a job, car, a home, or any furniture. That had all been liquidated by the state.

    When she moved to a new residence closer to her good friend Mary Ann, I gave her the bed from the blue bedroom and the bedding that went with it. At least, I thought, she’d have that.

    That was several years ago. I’ve talked with Ginger on the phone a few times, and she always sounded upbeat , positive and faith filled … her natural state. She began painting beautiful stained glass, and seemed to be fairing well.

    When the news of her passing came yesterday, it knocked the wind out of me. My heart and mind are whirling with memories of her, the sound of her laugh, and her willingness to do the hard work necessary to make good things happen.

    Some people may think kidnapping Ginger and helping her get out of that mess was a courageous thing to do. Others may call it stupid. But looking back, I’m not sorry.

    And looking up, I know Ginger is free and happy … may God bless and keep her.

    Full Article & Source:
    Ginger


    See Also:
    Ginger Franklin's Car Towed and Sold While in Conservator, Jeanan Mills Stuart's 'Care'

    Ginger Franklin, Tennessee Victim

    Tennessee Public Guardian, Jeanan Mills Stuart's Fees Exceed $1.8 Million

    TN:  Conservator Jeanan Mills Stuart and Judge Randy Kennedy

    Jeanan Stuart Response to Questions

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    GOLDSBORO, NC (WITN)- A woman facing sheriff's office charges for allegedly exploiting her 86-year-old grandmother is now accused of check fraud in connection to a church.

    Goldsboro Police say back on April 17th they received a report from the Wayne County Sheriff's Office that the Shady Grove Missionary Baptist Church in Mount Olive was the victim of check fraud.

    Police say counterfeit checks were manufactured, uttered, and cashed on the church's bank account at a financial institution within the Goldsboro city limits.

    Warrants were secured on Tiffany Anstey, 33, and Adrian Holbrook, 26, both of Goldsboro.
    Anstey was charged with uttering forged instrument, obtaining property by false pretense, and attempted obtaining of property by false pretense. She was given a $5,000 secured bond and has a first court appearance scheduled for Friday.

    Holbrook is still at large.

    Full Article & Source:
    Goldsboro woman accused in elderly exploitation also facing church check fraud charges

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    A woman who coordinates senior services for the Southern Nevada Regional Housing Authority was indicted Wednesday on charges that she and her husband swindled more than $100,000 out of an elderly man they befriended at a karaoke bar.

    A Clark County grand jury returned the indictment charging Yvette Mendes-Hayes and Lawrence Paul Hayes with exploitation of an elderly person and theft. The charges follow an investigation into allegations of exploitation of Peter Antonucci, who was 87 when he met the married couple while out doing karaoke in 2015.

    Mendes-Hayes earned a taxpayer-funded salary of $55,000 last year in her role providing housing services to senior citizens. In that same year, she is accused of defrauding an aging but lucid man of the wealth he had left by, among other things, persuading him to sell his home.

    According to the arrest warrant filed in the case, Antonucci developed a friendship with the couple after meeting them. Antonucci told authorities that Hayes told him to sell his townhouse, so “they could buy a bigger house and he and Yvette would take care of Peter.”

    Antonucci obliged and sold his Summerlin townhouse for $150,000, with the help of a real estate agent who is a friend of the Hayes couple. The arrest warrant said that Hayes and Mendes-Hayes used the proceeds of the townhouse to purchase a North Las Vegas home but that Antonucci’s name was not listed in any title documents for the new house. The three of them moved into the house in the summer of 2015.

    “Peter said that he was told to stay in his room and had to ask for permission to leave the house,” the arrest warrant said. “He now believes that he was defrauded by the Hayes and they had planned to exploit him.”

    Antonucci told authorities that Hayes told him he could not be on the deed because his only income is Social Security benefits. He also told police that Hayes took the $2,200 in monthly Social Security payments and transferred it into his own account to use the money for mortgage payment, living expenses, and house furnishings.

    Hayes collects disability benefits and is not employed. He has a criminal record that include fraud offenses in Michigan.

    Filings in the case accuse the couple of belittling Antonucci, who told police “he would stay in his bedroom most of the time because every time he came out he was ordered away or criticized by Paul (Hayes).”

    Court filings indicate that Antonucci left the house in May 2016, taking only his clothes, guitars and two handguns. He left furniture and other belongings with the Hayes, who authorities say changed all the locks after Antonucci left.

    Full Article & Source:
    Housing Authority coordinator charged with swindling elderly man

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    Sandra Derosa and Vivian Sarlo
    When Flora Derosa was diagnosed with Alzheimer's disease, she knew she had to plan for her long-term care. She met with a lawyer and established a plan that gave power of attorney to two of her daughters should she become incapacitated.

    She is now 90, and her disease is advanced. She is living in the Enhanced Life Unit at Hillsborough County Nursing Home in Goffstown against her family's wishes and her legal directives.

    Daughter Sandra Derosa said the family can do nothing about it. She said Elliot Hospital "stole" her power of attorney after her mother was locked in its geropsychiatric unit in Manchester for over 560 days.

    Elliot officials refused to comment, but Derosa and her sister Vivian Sarlo provided correspondence between the two parties showing the case stemmed from a dispute over Flora's medications. The Milford family contends that when they stood up for their mother, the hospital used intimidation to make them back down, including an unsupported abuse complaint filed against Derosa and Sarlo that banned them from visiting her mother for two months.

    "We were being advocates. That's all. We were being advocates for our mother," Sarlo said. "Isn't that what you are supposed to do?"

    The daughters never imagined a hospital would fight a dying woman's directives.

    "Who knew they could trump that?" Derosa said.

    Flora's family has appealed the court decision, but aren't hopeful. They want others to know their story to protect themselves from "granny-snatching" - a term that has come to describe a hospital taking guardianship of an elder despite them taking legal steps to ensure their final wishes are protected.

    Elaine Renoire of the National Association to Stop Guardian Abuse said hospitals fighting families for guardianship over treatment disputes happens "far too often" in the United States, but is not widely reported, especially when the patient is elderly.

    The battle begins

    Sarlo owns a real estate agency, and Derosa is a respiratory therapist at a sleep lab near Boston. For years, Flora would spend half the week at Sarlo's home and the other half at Derosa's so the daughters could still work while honoring Flora's wishes to live at home.

    In 2014, it got to be too much. Flora refused to get back into Derosa's car after a trip to the grocery store, was taken by ambulance to Elliot Hospital and eventually sent to Hillsborough County Nursing Home. Flora's agitation grew worse in the nursing home and she was eventually brought to the Elliot geropsychiatric unit in October 2015.

    According to the paperwork provided by the family, the goal was to get Flora calmer through medication so she could return to a nursing home.

    The daughters didn't disagree with the goals, but found the medications adversely affected their mother's health. They showed photos of Flora and her 70-pound weight gain with ankles so swollen her compression socks were cutting into her skin. Sarlo said the drugs were the equivalent of "chemical restraints" to "make the nurses' jobs easier."

    Derosa put her concerns in emails to doctors and asked for her mother to be put on medications that had calmed her in the past because "I know my mother. I know what works."

    Renoire said that's where they went wrong. She said when going against a doctor's orders "you stand a chance to lose everything and that's the sad part."

    "I think a lot of it, and this is my own personal opinion, if you have a medical background, that offends the hospital because they are supposed to be all-knowing," Renoire said. "If a family complains too much, they have had it with you."

    The hospital's case

    Derosa ordered a stop to the antipsychotics in September 2016, and the hospital filed a complaint with the state Bureau of Elder Abuse that was immediately dismissed. A few weeks later, Sarlo was banned from visiting her mother, which is documented in correspondence between the family and the hospital.

    Derosa said she backed off and "had nothing to do with medication" until January 2017, when they found out Flora was being given morphine several times a day.

    "That's what they do when you're dying," Sarlo said. "It wasn't for pain. It was to keep her sedated and keep her chemically restrained."

    Derosa ordered it stopped. The hospital responded by filing the court action to have Derosa's power of attorney revoked. The family was told through written correspondence that Hillsborough County Nursing Home would only take Flora back "if Sandra is not POA (power of attorney)."

    The family said the reason the nursing home wouldn't take her back is because Elliot staffers "lied" about their mother's agitation in records to justify the use of heavy drugs. They pointed to an example of where the hospital recorded Flora as "ramming the walls with her walker." Sarlo said her mother couldn't walk because of the weight gain and neuropathy in her feet.

    "No one wanted her then," Derosa said.

    Judge Patricia Quigley sided with the hospital, removing Derosa's power of attorney and appointing a guardian. The details of her decision are not public record.

    "We lost our mother that day. It's like my mother died," Derosa said. "We'd do everything for my mother because she would do anything for us. Now we can't."

    Guardianship in NH

    State laws define when guardians are to be appointed. The purpose of the law is "to "encourage the development of maximum self-reliance in the individual; to encourage rehabilitative care, rather than custodial care for incapacitated individuals; and to impose protective orders only to the extent necessitated by the individual's functional limitations."

    In 2016, the state had 917 appointed guardians overseeing incapacitated adults, but the state Justice Department would not say how many of those involved elderly patients. It would not say how many of those cases involved a hospital making the petition.

    According to state law, the guardian only has to see Flora once a month and file an annual report. Flora's guardian is paid for with what's left of her estate - her dead husband's Social Security check.

    "The spirit of this law is not to be used for this reason," Sarlo said.

    Renoire's group works to raise awareness about the issues of guardianship and is involved in legislation aimed at protecting families like Flora's. She said the group has been unsuccessful in getting laws passed to strengthen power of attorney rules.

    "The laws around powers of attorney need revamping, and people need to be aware of how to do a good one," she said. "We're not lawyers, but we need to be like ones."

    Protecting yourself

    According to Renoire, Flora made a mistake when she started her planning by giving power of attorney to only to two people.

    One was Derosa and the other was her daughter Dolores, who died of brain cancer two years ago.

    Renoire said a person should name at least four or five people in their directives. She explained that if one can't serve, another can take over, making it harder for a hospital to seek guardianship.

    But Renoire warns "nothing is ever full-proof." She also said her group has found that judges often side with hospitals over family.

    "There is a propensity for a judge to think that the family is bad, and sometimes they are," she said.

    Sarlo and Derosa said the court case was a "disaster" for them. They had difficulty finding an attorney. When they got to court, their lawyer was unaware it was a hearing where both sides would present their case and never filed an appearance to represent them. They said the hearing went for two hours but they had only 10 minutes to present their case, and Derosa was the only one allowed to testify despite a room full of family members there to support Flora.

    "I've talked to hundreds of people over the years, and I have yet to find one that has had a lawyer that didn't make a fatal mistake," Renoire said. "You have to guide them. You have to do the work yourself."

    If a guardian is appointed, Renoire tells families to "pick their battles," correspond only in writing, ask for a response and try to be professional. She said this is the hardest part for families because they are emotional and concerned for their loved ones.

    "Give an Academy Award-winning performance, and by that I mean, bite your tongue," she said. "Treat them nice so they treat you nice."

    Flora today

    Susanna Fier, Elliot vice president of public affairs and marketing, issued a statement in support of the psychiatric unit, but would not talk about Flora's case.

    "We are the only provider in Manchester offering any inpatient beds to this population of patients in need of care," she wrote. "Importantly, in the state of New Hampshire, there are very few hospitals offering inpatient geriatric psychiatric beds, Elliot Hospital being among those few organizations who have remained true to serving community need, including the growing needs of the mental health population."

    The hospital moved Flora back to Hillsborough County Nursing Home two weeks ago. Two days later, she was back in the emergency room after falling out of bed and breaking two ribs, her daughters said. She is now back at the nursing home.

    The daughters said they are working with the guardian and hoping she will allow them to bring Flora home when her dying hours are near. The guardian did not respond for comment.

    No date has been set for the family's appeal. Renoire said such appeals "are rarely successful."

    "Remember, we're talking about old folks, and there is never a win," Renoire said. "I usually say 'Save your money.'"

    Silver Linings is a continuing Union Leader/Sunday News report focusing on the issues of New Hampshire’s aging population and seeking out solutions. Union Leader reporter Gretchen Grosky would like to hear from readers about issues related to aging. She can be reached at ggrosky@unionleader.com or (603) 206-7739. See more at www.unionleader.com/aging.

    Full Article & Source:
    Fighting for Flora: Family, hospital battle over 90-year-old kept in psychiatric unit for 20 months

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    George Edward
    More often than not, senior citizens will be scammed and defrauded by their loved ones, not strangers, according to the author of “How to Steal from Mom; A Wake-up Call for Seniors.”

    “They will be preyed upon by those near and dear them,” said George Edward of Bellingham. Before retiring, Edward was the risk management officer for Whatcom Educational Credit Union. During his tenure he developed the WECU SAFE Program, tailored to combat the financial exploitation of senior citizens.

    While leading the program from 2007-15, he investigated 120 cases of financial fraud and abuse cases. Seventy-five percent of the scammers were a son or daughter. The average age of their victims was 82.

    In most cases, the victim was alone, physically disabled, confused or suffering from Alzheimer’s, Edward said.

    The crime is often referred to as familial fraud. Familial fraud occurs when fraud is committed by one family member against another. Caregiver fraud may be committed by a family member but it could also be anyone trusted to help with legal, financial or personal business. In either case, the fraud is the same, said Laura Lee, senior vice president and security officer of Peoples Bank in Bellingham.

    The people who commit such crimes target older people because they are most likely to have substantial savings and excellent credit. They also tend to be polite and trusting, a result of being part of what Edward calls the “handshake generation.”

    As more and more Baby Boomers retire on fixed incomes and more seniors become totally dependent on others, the number of elderly victims of financial abuse will increase, Edward said.

    “In my experience, the typical victim does not read or understand his or her monthly (bank) statement and implicitly trusts the son or daughter with the fiduciary responsibility of managing his or her finances,” Edward said.

    While he has seen a growing number of familial fraud cases, Edward says there are likely more that go unreported.

    Seniors also are less likely to report a fraud, because they might be ashamed at having been scammed or don’t realize they have been victimized. They also might be concerned that relatives will think they no longer have the capacity to care for themselves.

    Bellingham Police Lt. Danette Beckley said she is aware of at least a couple of cases of familial fraud in Bellingham involving elderly parents. In one instance, a son was given the power of attorney and bilked his elderly mother out of thousands of dollars.   (Click to Continue)

    Full Article & Source:
    Advice for the ‘handshake’ generation: Stay connected, stay safe from scammers

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    Jennifer Cona
    The common law principle is well-settled that every individual of sound mind and adult years has a right to determine what should be done with his or her own body. The right to accept or reject medical treatment has long been recognized for competent adults. However, for individuals who lack capacity, this right was not always recognized, often times forcing individuals to be subjected to treatments that went against their beliefs and desires. Unfortunately, the imposition of unwanted medical treatment still happens today in the context of incapacitated patients who reside in hospitals and nursing homes due to an apparent conflict between limitations placed on the powers of a guardian in some court jurisdictions versus the standards set forth under the Family Health Care Decisions Act.

    Signed into law in 2010, the Family Health Care Decisions Act (FHCDA) (N.Y. PUB. HEALTH LAW §2994-d) reflected a major departure regarding the standard under which life sustaining treatment may be terminated for a mentally incompetent person. The FHCDA flipped the switch from the prior "presumption of life" to a "presumption of termination" (absent indication from the principal to the contrary), and did so especially in the context of artificial nutrition and hydration. See In re Zornow, 919 N.Y.S.2d 273, 31 Misc.3d 450 (Sup. Ct. Monroe Cty. 2010).

    Intending to fill a gap in New York law by establishing a decision-making process applicable for patients lacking decision-making capacity in hospitals and nursing homes who do not have advance directives, the FHCDA allows surrogate decisions regarding the withdrawal or withholding of life-sustaining treatment based on a best interests standard, subject to the medical standards set forth in the statute. See N.Y. PUB. HEALTH Law §2994-d(4); see also In re Doe, 37 N.Y.S.3d 401, 53 Misc.3d 829 (Sup. Ct. Kings Cty. 2016). Guardians pursuant to Article 81 of New York's Mental Hygiene Law are given the highest priority to act as a surrogate decision maker, followed by a priority order of family members and other persons close to the patient.

    In enacting the guardianship statutes codified in Article 81 of the Mental Hygiene Law in the early nineties, the legislature found that the personal wishes, preferences and desires of the person should be followed when making determinations on behalf of individuals with incapacities. Historically, decisions to withdraw life-sustaining treatment made by court-appointed guardians have been held to the clear and convincing standard. However, this standard is at odds with the legal and medical framework set forth in the FHCDA, which has become problematic in various circumstances.

    Two Standards


    The authority of a guardian of the Person under Article 81 of the Mental Hygiene Law extends well beyond the authority to make medical decisions as granted by the FHCDA. As such, the appointment of a guardian is often warranted to ensure the complete protection of an incapacitated individual's interests. The courts generally favor the appointment of a family member as guardian, particularly with regard to personal needs. See, e.g., In re Naquan S., 767 N.Y.S.2d. 906 (N.Y. App. Div. 2003). As guardian, a family member is in the first position of possible surrogate appointees under the FHCDA. Although one would suppose that holding the top priority as the surrogate decision-maker would expand one's powers, in some counties within the state, it has actually limited a family member's ability to make health care decisions, in particular decisions with regard to life sustaining treatment.

    In practice, the FHCDA has been interpreted differently across the counties throughout the state regarding end-of-life decisions. As the FHCDA states that a guardian is authorized to make decisions regarding health care pursuant to Article 81 of the Mental Hygiene Law, some court jurisdictions have interpreted this to mean that such decisions must comply with the standards expressed under Article 81, therefore holding guardians to the common law "clear and convincing" standard while other counties apply the statutory, less restrictive "best interests" and medical standards set forth in the FHCDA. See N.Y. PUB. HEALTH LAW §2994-d(1)(a).

    With the passage of the FHCDA, §81.29 of the Mental Hygiene Law was repealed and the "personal needs" provisions in §81.22 was amended. See FHCDA, A. 7729-D, 2009-2010 Leg., Reg. Sess. (N.Y. 2009); N.Y. MENTAL HYG. LAW §§81.22, 81.29. Pursuant to amended section 81.22, for decisions in hospitals and residential health care facilities, the court may grant to the guardian the power to act as the patient's surrogate pursuant and subject to the FHCDA. Based on the inclusion of the changes to the guardianship statutes with the passage of the FHCDA, it would appear that the "clear and convincing" standard no longer applies to personal needs decisions.

    However, present day experiences with guardianship courts across the state of New York reveal that the counties are interpreting these rules in different ways. Some counties, for example, include a limitation on decisions regarding the withholding of life-sustaining measures. For example, the language included in one such county's guardianship order states that the guardian may "consent to or refuse generally accepted routine or major medical or dental treatment on behalf of [the incapacitated person], except for the power to consent or authorize, in the absence of further order of the Court, withholding or withdrawal of life sustaining treatment or to the implementation of either a Do-Not-Resuscitate or Do-Not-Intubate Order." Arguably, this goes against the FHCDA, which states that there is a presumption in favor of termination unless there is evidence to the contrary.

    Case Study


    Consider this fact pattern: Mrs. Crake's husband was named the guardian of her personal needs and property management. However, the court limited Mr. Crake's powers regarding the withholding of life-sustaining treatment, requiring further Court order in such event. Mrs. Crake was a woman in her sixties diagnosed with early onset Alzheimer's disease who exhibited end-stage dementia. Mrs. Crake required increased levels of residential care as her condition was quickly deteriorating and she required frequent hospitalizations. Mr. Crake, as Mrs. Crake's husband and personal needs guardian, was asked by both hospital staff and nursing home staff to complete a MOLST (Medical Orders for Life Sustaining Treatment) form on her behalf in the event of an emergency. However, Mr. Crake did not have authority to execute a MOLST because of the provision in the guardianship order limiting his decision-making authority regarding the withholding or withdrawal of life-sustaining treatment. In contrast, had Mr. Crake not been appointed guardian for his wife, as her husband and the second surrogate decision-maker under the FHCDA, he would have had unquestioned authority to execute the MOLST form on her behalf. Although Mr. Crake sought the guardianship to have the authority to assist his incapacitated wife in matters that exceeded her medical needs, the guardianship order actually limited his powers in regard to medical decisions. As a result, Mrs. Crake was intubated and subject to care that her family believes she would have rejected based on her condition, even though all of Mrs. Crake's family members were in agreement with Mr. Crake that their wife/mother/sister would not want life-sustaining measures to be undertaken.

    This situation is exactly what the legislature set out to prevent with the enactment of the FHCDA. The legislature recognized that these personal decisions are best left to the families of incapacitated individuals. According to the legislature, the trial court "must protect itself from inappropriate involvement in a life-sustaining medical treatment case and should decline jurisdiction if there is no justifiable controversy." See FHCDA, A. 7729-D, 2009-2010 Leg., Reg. Sess. (N.Y. 2009) (citing Memorandum in Support of Legislation).

    Even though Article 81 of the Mental Hygiene Law specifies that personal needs decisions are subject to the standards of the FHCDA, Mrs. Crake's case makes evident the conflict of laws. The legislature intended that the provisions of the FHCDA provide "responsible policies" for medical decisions for incompetent individuals as well as a process to review cases and resolve disputes within health care facilities, thereby eliminating the reliance on the courts except in situations of last resort. The Department of Health issued regulations that would further ensure that the standards of the FHCDA are followed in health care facilities such as nursing homes. Furthermore, the MOLST form was updated in June 2010 to align with the standards of the FHCDA and, therefore, the standards for a health care surrogate to complete a MOLST form are the same standards set forth in the FHCDA. As such, based on the provision of the FHCDA that subjects personal needs decisions made by guardians to the FHCDA, it is clear that the FHCDA has provided the necessary safeguards and procedures to ensure that decisions regarding life sustaining treatment are properly made at health care facilities without the intervention of the courts.

    Although the statute purports to make the requirements clear, the misapplication of the clear and convincing standard with the best interests and medical standards of the FHCDA by some courts across the state evidences the fact that New York courts need further guidance on this issue. It is necessary that the legislature make clear the correct standard to be applied in the circumstances where an Article 81 guardian makes a decision regarding life-sustaining treatment.

    As evidenced by the enactment of statutes such as the Family Health Care Decisions Act and the guardianship statutes, New York has taken extensive measures to ensure that individuals' wishes are appropriately carried out when they are no longer able to make decisions on their own behalf. To ensure that incapacitated individuals are extended the protections that the legislature recognized were necessary, it is essential that the courts be provided further guidance to ensure these standards are uniformly applied across the state.

    Full Article & Source:
    End-of-Life Decisions for Incapacitated Adults: Caught Between a Conflict of Laws

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    Dear Moneyologist,

    My father-in-law got remarried 14 years ago. He wrote a new will, leaving his home and money to his new wife should he happen to die first. He has now gotten Alzheimer’s and she no longer wants to care for him. She has asked his son to take him as she does not want to put him in a long-term care facility. This is only after she tried to move him to an assisted-living care facility and he totally resisted. He has enough of his senses to know that this is not what he wanted.

    His wife had my father-in-law sign a power of attorney a year ago (when he was partially of sound mind and body) and has taken it upon herself to sign the house over to herself. They had a shared bank account with $100,000 and she put it in an annuity in her name only. The only money he has left is his government pension which she can’t touch and is in his name.

    My brother-in-law is now caring for his dad and seems to have no recourse to get half of his ownership in the home and half of the $100,000. They are still married and we want to complete a separation of assets. She still has the power of attorney and has only given my brother-in-law a medical power of attorney. Once we get approval from his wife to move the pension over to his own bank she will no longer be able to afford their home and be forced to sell.

    If she was going to put him in an assisted living facility there would have been a cost associated and she would have had to pay some money. Since my father-in-law is in the care of his son, his wife has not offered to provide any assistance. What recourse do we have to get half his assets?

    She lives in Ohio and my father-in-law now lives in South Carolina with his son.
    Interested son-in-law

    Dear Interested,
     
    Shocking stories? The Moneyologist has heard a few. But there was a point in your letter — “she no longer wants to take care of him” — where my jaw actually dropped.

    It seems like she does not or cannot pay for a private nursing home or she does not want to explore the options available to your father-in-law under Medicaid, which is administered by the states. As Richard Eisenberg from NextAvengue.org recently wrote on MarketWatch,“Roughly 52% of people turning 65 today will require long-term care at some point” and, he added, “I’m sad to say that the new AARP ‘Long-Term Services and Supports State Scorecard’ finds that most states aren’t doing a great job helping people needing such care.” And Ohio ranked 34 out of all 50 states.

    There seems to be very little you can do to challenge the will your father-in-law wrote 14 years ago, but I’m not convinced that power-of-attorney that he signed one year ago is beyond reach. He may not have been diagnosed with Alzheimer’s a year ago, but this is a progressive disease and the symptoms can start a long time before a person requires medical care. What’s more, he may have been mentally fit enough to be aware of how he would be dependent on his wife of 14 years. He was scared, he trusted her, his mental state could also have been even slightly impaired (as his or any doctor could attest based on other Alzheimer’s cases).

    He must have been of sound mind AND not under or subject to duress, restraint, fraud or undue influence.

    “Alzheimer’s can last a long, long time,” says Anne Tumlinson, founder of Daughterhood, a Washington, D.C.-based organization that provides information and resources to people caring for aging parents. “People with Alzheimer’s are much more likely to be among the 14% of older adults who have very high care needs that last beyond 5 years. It’s definitely the one care situation that can bankrupt everyone in the family.” As a result, she says, seeking seek legal assistance “immediately” is really important.

    When care needs go on this long, often the only option or recourse — particularly for the extremely demanding care needs of someone with Alzheimer’s — is a nursing home, which because of the high cost, will end up being reimbursed by Medicaid, Tumlinson says. There is one major possible complication, however. “His wife could be standing in the way of this man’s eligibility for Medicaid because states do not let the ‘community spouse’ keep all the money while the state Medicaid program pays for care. The community spouse can keep some of the money but not all of it.”

    As I have told other people who have written into this column, hire a lawyer who specializes in conservatorship and challenge this power of attorney now, rather than later. You could petition a court to have yourself appointed instead. And advice I have given to divorcing couples, may apply here too. California, Arizona, Idaho, Louisiana, Texas, Nevada, New Mexico and Washington treat all marital assets as community property, meaning that assets acquired during the marriage only are divided equally between the two spouses. But in California, for example, children may receive a portion of separate property.

    Your wife’s mother-in-law may have washed her hands of her husband of 14 years, but he has a family to take care of him and give him the respect and love that he deserves. But he will need financial support. Some 42% of people caring for a family member with Alzheimer’s spend $20,000 or more a year on caregiving, which includes out-of-pocket expenses for assisted living, in-home caregivers, medication and medical bills, according to one report by Caring.com. One-third of that number spend $30,000 or more. The cost of end-of-life care for dementia (at $278,000) is far more than cancer ($173,400) or heart disease ($175,100), another survey by MetLife last year showed.

    For these reasons — ethical and financial — you owe it to your father-in-law, wife and brother-in-law to seek legal advice and do for this man what he cannot do for himself.


    Full Article & Source:
    This woman doesn’t want to care for her husband with Alzheimer’s — but took his home and money

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    There is a difference between Alzheimer’s and dementia, but they’re closely related.

    Alzheimer’s disease is is a form of dementia. It’s the most common type and accounts for 60 – 80% of all dementia cases. However, not all dementia is caused by Alzheimer’s.

    Dementia is an umbrella term for a collection of symptoms and isn’t a disease. It’s caused when the brain is damaged by diseases, like Alzheimer’s or small strokes. Aside from Alzheimer’s, there are 8 other types of dementia you might not have heard about.

    The specific symptoms that someone with dementia experiences depends on the parts of the brain that are damaged and the disease that’s causing the dementia.

    What is Alzheimer’s disease?
    Alzheimer’s disease is a progressive brain disease. It causes problems with cognitive functions like memory, judgement, decision-making, and behavior. Symptoms are unpredictable, but usually develop slowly and worsen over time.

    In the early stages, memory loss and other symptoms are usually mild. In later stages, people often have symptoms like problems with communication, complete dependence on others for care, loss of mobility, incontinence, problems eating, and unusual behaviors like repeating questions or asking to go “home.”

    Alzheimer’s is the 6th leading cause of death in the United States. As of now, there is no cure. Current treatments may reduce or delay symptoms, but typically work best in the early stages of the disease.

    After symptoms become noticeable, the average Alzheimer’s patient usually lives another 8 years. But depending on age and other health conditions, patients could live from 4 to 20 years.

    What is dementia?
    Dementia is an overall term for a wide range of symptoms associated with a decline in memory and cognitive skills. It’s caused by physical changes in the brain that are usually triggered by disease, stroke, or injuries.

    Alzheimer’s disease is the leading type of dementia. The second most common is vascular dementia which is often caused by stroke or transient ischemic attacks (TIAs or mini-strokes).

    Other conditions can also cause symptoms of dementia. Some are reversible, like UTIs, delirium, thyroid problems, or vitamin deficiencies. Others, like Parkinson’s disease, are not reversible.

    Source:
    What is the Difference Between Alzheimer's and Dementia?

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    Cheryl Powers fixing the hair of her mother, Elaine Fisher
    In 2012, Parkview Healthcare Center’s history of safety violations led California regulators to issue an ultimatum reserved for the most dangerous nursing homes.

    The state’s public health department designated Parkview, a Bakersfield, Calif., nursing home, a “special focus facility,” requiring it to either fix lapses in care while under increased inspections or be stripped of federal funding by Medicare and Medicaid — a financial deprivation few homes can survive. After 15 months of scrutiny, the regulators deemed Parkview improved and released it from extra oversight.

    But a few months later, Elaine Fisher, a 74-year-old who had lost the use of her legs after a stroke, slid out of her wheelchair at Parkview. Afterward, the nursing home promised to place a nonskid pad on her chair but did not, inspectors later found. Twice more, Ms. Fisher slipped from her wheelchair, fracturing her hip the final time.

    The violation drew a $10,000 penalty for Parkview, one of 10 fines totaling $126,300 incurred by the nursing home since the special focus status was lifted in 2014.

    While special focus status is one of the federal government’s strictest forms of oversight, nursing homes that were forced to undergo such scrutiny often slide back into providing dangerous care, according to an analysis of federal health inspection data. Of 528 nursing homes that graduated from special focus status before 2014 and are still operating, slightly more than half — 52 percent — have since harmed patients or put patients in serious jeopardy within the past three years.

    These nursing homes are in 46 states. Some gave patients the wrong medications, failed to protect them from violent or bullying residents and staff members, or neglected to tell families or physicians about injuries, inspection records show. Years after regulators conferred clean bills of health, levels of registered nurses tend to remain lower than at other facilities.

    Yet, despite recurrences of patient harm, nursing homes are rarely denied Medicare and Medicaid reimbursement. Consequences can be dire for patients like Ms. Fisher.  (Click to Continue)

    Full Article & Source:
    Poor Patient Care at Many Nursing Homes Despite Stricter Oversight

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    Jody Scoggins
    WOODWAY, Texas (KWTX) A Waco-area realtor was arrested Thursday and charged in connection with an alleged scheme to bilk an elderly and handicapped man out of his home and to empty his bank accounts.

    At around noon Thursday, Waco police arrested Jody Scoggins, realtor and owner of the Scoggins Team, at his office, at 8805 Woodway Dr. in Woodway, on two warrants charging securing execution of a document by deception and with exploitation of an elderly individual, Waco police Sgt. W. Patrick Swanton said.

    Scoggins was in the McLennan County Jail Thursday evening.

    In a separate but related issue Thursday lawyers for David and Brenda Menefee, of Moody, filed a civil action in 414th State District Court seeking relief after they say Scoggins and a group of others conspired to take ownership of the Menefee’s Moody home and to gain access to their bank accounts.

    The petition names the Menefees as plaintiffs and Scoggins, his wife Kim Scoggins, his mother Debbie Scoggins, the Scoggins Real Estate Team, LLC, Pennybags, LLC, Scoggins Enterprises, Inc, Hessco Roofing & Remodeling, LLC, and 1st Choice Fencing, Inc., as defendants.

    Brenda Menefee is rightful owner of a home on Highview Lane, in Moody, where she cares for her husband who is blind and has dementia, Waco attorney Ross Russell says in the lawsuit.

    The suit alleges that Scoggins forced David Menefee to sign over his power of attorney, blocked his wife’s phone number on his cellphone and told Menefee his wife had stopped calling him, and had his mail re-routed to Scoggins’ office address.

    Eventually, the lawsuit says, the defendants were able to gain control of the real property and all of the Menefee’s accounts.

    Full Article & Source:
    Area realtor charged in alleged scheme to bilk elderly man out of home

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    ALBEMARLE COUNTY, Va. (NEWSPLEX) -- Exactly one year since its formation in June 2016, members of the Jefferson Area Coalition to End Elder Abuse say they're pleased with what they've been able to accomplish.

    The task force is made up of lawyers, law enforcement, bankers and social workers.

    The goal is to end elder abuse in local communities with a primary focus on financial exploitation.

    Elder law attorney, Doris Gelbman, is at the helm of the task force and said financial abuse often opens the door to other forms of abuse and neglect.

    According to Gelbman, the task force has been able to investigate and prosecute an assortment of cases since it began.

    "It leaves elderly people, very vulnerable, elderly frail people without their life savings at a time when they can not earn any more and are destitute, what a desperate situation this is for them," said Gelbman. "I'm proud to say that people have understood that now and have come to the table, energized about this. They are very enthusiastic about going after these criminals."

    Gelbman encourages people in the community who witness any form of elder abuse to report it to Adult Protective Services.

    Reports can be made anonymously.

    Full Article & Source:
    Elder abuse task force makes mark in one year

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    SALT LAKE CITY — Civil rights advocates are challenging a Utah law that eliminated a requirement that disabled adults whose biological or adoptive parents petition courts to become their legal guardians have their own attorney.

    The ACLU of Utah and the law firm Latham & Watkins sued the state in federal court Thursday on behalf of the Disability Law Center and two people identified as Katherine C. and Anthony M.

    The law gives judges the final say on whether a potential ward needs legal representation in a guardianship proceeding. It applies only to guardianship petitions filed by biological or adoptive parents and if the potential ward’s assets are less than $20,000.

    Members of the state's disability community and the Utah State Bar opposed the bill when the Legislature passed it in 2016. The law is set to expire in July 2018 unless lawmakers renew it when they convene next January.

    People with disabilities face unique and serious threats to their freedom and independence when someone seeks legal guardianship over them, said Aaron Kinikini, Disability Law Center legal director.

    "We want to ensure that our members have absolutely every legal protection they deserve when going through the guardianship process," he said.

    Bill co-sponsor Sen. Lyle Hillyard, R-Logan, said the legislation affects him personally, both as the father of an adult child with disabilities and an attorney.

    Many parents in the same circumstance have raised a child with disabilities from birth and have their best interests at heart but need guardianships to continue to help guide their child's medical, legal and financial affairs once they reach adulthood, Hillyard said.

    Most of them, he said, can't afford to hire an attorney for themselves and their child.

    "That just doesn't make sense to me. I think we get so anxious making sure everybody’s legal rights are protected that we actually price them out of the market," Hillyard said.

    He called the law "very, very limited" because it only applies to those whose assets are less than $20,000. In addition, Hillyard said judges can stop the legal proceedings and appoint an attorney for the child if they believe one is needed.

    The lawsuit, which names the state, Utah Administrative Office of the Courts and Utah Judicial Council as defendants, demands a right to a lawyer for anyone who is to be put under guardianship.

    Plaintiff Katherine C. has schizophrenia and works as a junior law clerk at a Salt Lake nonprofit. She lives with her parents because of her disability, according to the lawsuit.

    Anthony M. has developmental and intellectual disabilities. He works as a school custodian, and though he lives with his wife and son, he receives care and financial support from his parents, the lawsuit says.

    Both have less than $20,000 in assets and have expressed concerns about losing the right to make important medical and housing decisions for themselves, should their parents gain legal guardianship over them at some time in the future, according to the ACLU.

    Once granted, guardianship is rarely if ever revoked, said John Mejia, ACLU of Utah legal director.

    "When facing the loss of the right to make deeply personal decisions for themselves for the rest of their lives, people with disabilities need to have unfettered access to legal assistance," he said.

    Full Article & Source:
    ACLU sues Utah over disabled people's right to a lawyer in guardianship cases

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    Loyala Surangani McCants
    MOBILE, Ala. (WPMI) — On Friday, June 23, 2017, Mobile County Sheriff’s Office arrested Loyala Surangani McCants for three counts of Financial Exploitation of an Elderly Person 1st degree.

    The charges stem from an ongoing investigation in which she befriended a 90-year-old victim on the popular senior citizen dating site, OurTime. McCants, who is 58 years old, convinced the victim to move to Mobile from Maine on May 14, 2017. According to MPD, from May 22 to June 22, over $310,000.00 had been transferred into McCants' credit union from the victim.

    MCSO was notified by Alabama Securities Commission. “I received a letter from the Alabama Securities Commission on June 20th,” says Sheriff Sam Cochran. “I immediately sent it to our white collar crimes detectives. Because of their swift and thorough investigation, we were able to make an arrest and prevent her from going after her next victim.”

    At the time of McCants' arrest, she was in the process of relocating the victim to a local nursing home, while she and her family flew to Sri Lanka for a month’s stay.

    While investigating this case, Detectives discovered she had also done this same crime to an elderly man in 2016. Unfortunately, that victim has passed, and no one had knowledge of the crime until our investigation.

    If you feel you or someone in your family has been a victim of this type of crime, call 251-574-8633 or you may report anonymously www.mobileso.com/report-a-crime/.

    Full Article & Source:
    MPD: Woman stole $310k from 90-year-old man

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    Dr. Richard P. Holm
    Caring for the elderly my whole clinical life has been an honor and a pleasure, but some experiences have been terribly heartbreaking. Elder abuse is one of the saddest, and it can come in the form of physical harm and neglect, emotional cruelty, or financial exploitation.

    A couple of years ago a frail, confused, elderly person arrived in the emergency room with a fractured bone, bruises, sores, and was quite unclean. His family described that the patient had fallen multiple times recently, and I could see his needs were overwhelming his care providers. If there hadn't been physical abuse, there was at least neglect. After surgery and hospital care, we were able to send the patient to a nursing home. We all need to be aware when there might be possible physical abuse, and call for help when we see it.

    Another case was one of emotional abuse with much blaming, shouting, and anger put upon an incapacitated elder. It was by a visiting, emotionally-ill family member who had arrived from afar and was unloading his own emotional baggage upon their frail and defenseless parent. The patient had been admitted for a medical issue, and the nurses were the first to recognize the emotional abuse. Police were notified and the visitor was banished from visiting the patient in the hospital during their stay or at their home after they were discharged.

    On instance of financial abuse was evident in another case, when a son informed me that his 80-plus-year-old mother and her new boyfriend had recently been going to the bank and removing large sums from the mother’s savings account. The son believed his mother was “losing it”, and informed me that she had been spending thousands of dollars for herbal and supplemental cures for her memory problems She had several unpaid bills and was now was being manipulated by an opportunist. He asked me how to protect his mother’s money.

    I saw the patient in my office; obviously the mother was demented and incapacitated. A judge confirmed her incompetence and determined the son was to have power of attorney. Problems could have been avoided had the son been more watchful, had the mother made financial plans before her mental health problems, and had a bank’s trust department or a bookkeeping business been asked to pay bills.

    None of us are safe from abuse. When people become frail or lose their mental capacity, then bad people can take advantage of them. Elder abuse can come in the form of physical harm and neglect, emotional cruelty, or financial exploitation, and is more common than you would expect.
    Be aware, and take precautions.

    Full Article & Source:
    We all need to be aware of physical abuse

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    A Hendersonville woman who lost her home, car and all her belongings in a highly contested conservatorship case has died.

    Ginger Franklin, 58, died Monday. Her controversial conservatorship case was one of a handful that sparked a reform effort leading to a 2012 change in Tennessee law.

    Franklin also successfully sued the owner of a group home where she was placed against her will and put to work cleaning and cooking for other residents even as her bank account was being tapped for a monthly fee.

    Franklin's case came to the attention of a national organization established to halt abuse by guardians and conservators.

    "The system didn't just let Ginger down; it used Ginger and exploited her for its own benefit — at her expense and to her detriment, all under the deception of protection and on Judge David 'Randy' Kennedy's watch," said Elaine Renoire, head of the National Association to Stop Guardian Abuse, referring to the Davidson County probate judge who presided over Franklin's case.

    Franklin ended up in a conservatorship without her knowledge in 2008 after she fell in her condo and suffered a brain injury. She was shipped to a rehab facility in another state, and when she returned to Tennessee she was told by her court-appointed conservator that her condo was empty and being sold.

    She was placed in a group home and put to work.

    A judge would later rule that Franklin was the victim of "egregious and intentional abuse."

    Salim Homes was ordered to pay Franklin $23,050.

    Franklin's conservator was Jeanan Stuart, then the public guardian for Davidson County. Stuart was eventually forced to resign from her job after a series of articles in The Tennessean raised questions about her billing practices.

    In Franklin's case, records showed that Stuart seized and then abandoned a car Franklin owned. It was subsequently seized by the garage owners and auctioned off.

    Franklin made several attempts to have the conservatorship lifted but was rebuffed by Stuart and Kennedy.

    She wasn't finally released from the conservatorship until 2010.

    Franklin also filed suit against Stuart, charging that the attorney had violated her fiduciary duty by failing to act on her request to have the conservatorship dissolved and for mishandling her assets, including her car.

    A circuit court judge denied motions by Stuart to have the case dismissed. The suit was eventually dismissed voluntarily.

    Full Article & Source:
    Hendersonville woman who lost home, car in conservatorship case dies at 58

    See Also:
    Ginger

    Ginger Franklin's Car Towed and Sold While in Conservator, Jeanan Mills Stuart's 'Care'

    Ginger Franklin, Tennessee Victim

    Tennessee Public Guardian, Jeanan Mills Stuart's Fees Exceed $1.8 Million

    TN:  Conservator Jeanan Mills Stuart and Judge Randy Kennedy

    Jeanan Stuart Response to Questions

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