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Convoluted Case: How a Contentious Michigan Guardianship Devolved into a Probate Court Battle That Could Affect All Bloggers’ Rights

May 11, 2015, 10:30 pm
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An Oakland County Probate Court judge is being asked by a court-appointed guardian to issue a ruling on May 4 that could ultimately impact all bloggers’ rights to free speech.

Oakland County Probate Court Judge Kathleen Ryan has been asked by Steve (Steven) Siporin of Royal Oak, Mich.-based  Siporin & Associates to order a Farmington Hills, Mich. man to, among other things, redact all references on the website to persons or organizations associated with the case involving one of his wards.

Tom Nithyanand
Siporin has been sole guardian of the ward – Tom Nithyanand – since last July. Nithyanand, 21, and his family, including his father, Anand Sadashivan, admit to not learning enough about how such a guardianship could essentially set Tom back in his recovery from a 2010 traumatic brain injury.

To help others avoid the situation they launched LearnFromTom.com to raise awareness of how a guardianship can go wrong and prompt Michigan legislators to take action as their counterparts in Ohio recently have done.

Anand Adishivan
“LearnFromTom.com is a blog we launched that contains facts that we believed to be true at the time of posting and our opinions,” says Anand.

“We want to help people. We believed that was the intent of the guardian when he met with us a year ago so it seems odd that he is so anxious about the blog.”

Monday’s hearing in Pontiac is a result of Anand petitioning the court to remove Siporin as guardian, claiming his son has not improved since Siporin became guardian in July 2014. In fact, the family claims Tom has worsened in many ways over the course of the year.

Originally, the family asked for a court-appointed guardian because Tom received a large insurance settlement as a result of being hit while walking in 2010. As non-U.S. citizens, the family asked the court to appoint a co-guardian. Siporin and the family met a couple of times in early 2014 and Anand says a kind of trust was established – so much so that Anand asked the court to appoint Siporin.

When Anand and Tom argued over spending money last June, Siporin used a typical father/son verbal spat to get a court order that named him sole guardian and gave him the right to take Tom from his home and to Rainbow Rehabilitation of Farmington Hills. It also gave him control over all of Tom’s medical care and assets, such as the limitless funds received by Tom through Michigan’s no-fault insurance laws and intended to be used for his continued recovery.

At first, Tom was confined to remain under care of Rainbow Rehabilitation 24 hours a day, seven days a week. That loosened at the end of 2014 and he’s been able to go home on weekends since. But the fact remains that every Monday he must go back to Rainbow Rehabilitation.

“It’s amazing and scary how fast things involving my son’s well-being devolved from Mr. Siporin sitting with us, establishing trust and developing the framework of a plan for my son’s future to a debate over basic media law,” says Anand. “Let us not forget the point – we asked for help. We do not want others to have to needlessly go through what we have, so we started our
LearnFromTom.com blog to raise awareness of how the system can work or not work.”

Full Article and Source:
LearnFromTom.com
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Steve Miller on the Removal of Nevada Private Guardian April Parks

May 11, 2015, 11:00 pm
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April Parks
KTNV TV ABC News reported [on May 6th] that for hire private guardian April Parks has been stricken from the State of Nevada's list of professional guardians for taking financial advantage of her court appointed wards.

However, Parks' exclusion from the state list does not prevent appointed Clark County Family Court "Guardianship Commissioner" Jon Norheim, or his boss Judge Charles Hoskin from continuing to appoint her, or her mentor Jared Shafer as guardians of the lives and fortunes of additional well to do Southern Nevada retirees.

Hopefully, the State of Nevada will apply the same standards to Mr. Shafer in the near future so he cannot continue to drain the life savings of other wards appointed to him by Judge Hoskin and Commissioner Norheim. The video of Jason Hanson one of Jared E. Shafer's many exploited wards appointed to him by Judge Hoskin and Commissioner Norheim.
~SM

Here is Darcy Spears' excellent news story with video:

BACKGROUND

The video testimony of Jason Hanson, one of Jared E. Shafer's many exploited "wards":



Jared E. Shafer


Patience Bristol
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As elder abuse increases in Wyoming, officials work on educating public

May 12, 2015, 10:15 pm
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Fraud, larceny charges are possible in some cases

Donna Navarrete used more than $8,000 of an 87-year-old man’s state pension to pay her own bills instead of his medical costs.

Rae J. Bosley spent $800 of a woman’s Social Security funds at a popular gambling destination in Colorado.

Lynne M. Poole transferred $14,700 of her mother’s money to her and her husband’s accounts, and was suspected of making unauthorized purchases and ATM withdrawals of more than $20,000.

In recent years, all three women were sentenced in Laramie County District Court to first-offender probation and ordered to pay back tens of thousands of dollars for abusing or exploiting vulnerable adults.

Their cases are examples of what can happen when court-appointed guardians, caretakers or family members with the wrong intentions have access to a vulnerable person’s finances.

As our nation continues to age, and many people choose to age at home, advocates are trying to call attention to elder abuse -- a crime that seems to be increasing in frequency.

“It’s absolutely escalating, and I think what we’re finding is that people just aren’t educated about it,” Kristi Skinner said last month during the Wyoming Conference on Aging.

Skinner recently became the program analyst for Adult Protective Services within the state’s Department of Family Services.

She said her task is going to be “getting out across the state and letting folks know: This is a problem.”

The Wyoming Conference on Aging last month highlighted elder abuse as an important issue, bringing in a California prosecutor who speaks passionately about pursuing people who perpetrate crimes against older individuals.

Laramie County District Attorney Jeremiah Sandburg said he feels the same.

“I was really very close to my grandparents, so any time I see that happening to anybody in society who’s a vulnerable adult, or potentially so, I take that very seriously,” he said.

“If we’re not protecting the vulnerable people in our society, then what the heck are we here for?”

Dorothy Thomas has worked as the program analyst for Adult Protective Services within DFS for the past nine years.

She described abuse of vulnerable adults as a “silent epidemic.”

“It’s family and caregivers who are perpetrating the crimes, which only makes elders and vulnerable adults more fearful” or hesitant to report them, she said.

Thomas compiled a report published in December that outlines the monetary toll that financial exploitation of vulnerable adults takes on state services.

National researchers have estimated that as many as 44 cases of financial exploitation go unreported for every case that is reported, according to Thomas’ report.

Statewide, six substantiated cases of financial exploitation of a vulnerable adult in 2013 cost seniors and/or financial institutions $62,382.26, according to the report. The potential cost to Medicaid for those six cases was $431,072.

Cases are substantiated when the evidence gathered strongly suggests exploitation occurred. DFS can substantiate cases independent of whether criminal charges are ever filed.

Financially exploited vulnerable adults in 2013 ranged in age from 28 to 92, with the average age being 67, according to Thomas’ report.

The average financial loss per case that year was almost $10,400, with the largest amount stolen being $54,000.

In 2012, 16 victims ranged in age from 57 to 100, with the average age being 78. Those cases cost seniors and/or financial institutions nearly $790,000, and the potential cost to Medicaid that year was estimated to be just over $266,000.

The average financial loss per case that year was more than $46,000, with the largest amount stolen being $170,000.

Thomas’ report notes that there continues to be a perception that financial exploitation of vulnerable adults, especially by family members, is a civil matter, rather than criminal.

“Prosecution on a criminal level may still be possible; if not for exploitation, then for fraud or larceny,” the report says.

Sandburg echoed that sentiment.

He said it’s important for law enforcement and prosecutors to comb through every fact of a case to properly determine whether the matter should be pursued in civil or criminal court.

“We take these cases very seriously, and so we do give them that hard look, and we make sure to talk to all the interested parties,” he said.

“When you take that hard look at it, there is a prosecutable event often times that you wouldn’t find if you just looked at the affidavit or the report.”

Prosecuting vulnerable adult abuse crimes can presents challenges similar to those faced in pursuing child abuse or domestic violence.

Victims often are reluctant to report their perpetrator because in many cases it’s a family member.

“Whether it’s physical child abuse or spousal abuse or relative abuse or elderly physical abuse, you have a victim that may or may not be cooperative – that may or may not even be vocal,” Sandburg said.

He continued: “You may have a person who’s afraid -- afraid of what’s going to happen to them should the person that they are living with be taken away or their ability to stay with them be taken away.”

A guilty verdict could turn a victim’s entire future upside down.

Questions might run through his or her mind: “Am I going to lose my home? Am I going to have to go into an assisted living facility?”

As bad as things are in a victim’s current environment, the unknown can make them fear prosecution to the point they don’t want to cooperate, Sandburg explained.

“They feel they can continue to endure (their current situation),” he said.

Full Article & Source:
As elder abuse increases in Wyoming, officials work on educating public
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Eagles co-founder Randy Meisner to undergo mental evaluation in conservator battle

May 12, 2015, 10:30 pm
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A judge said Monday he wants a psychiatrist to evaluate Eagles co-founder Randy Meisner before ruling on a bid by the musician’s longtime friend to have a conservator appointed to look after the bassist’s personal needs as well as his finances and business affairs.

Los Angeles Superior Court Judge David Cunningham said that while some of the information provided by James Newton and his lawyers concerned him, it still fell short of showing any immediate threat of harm to the 69-year-old Meisner if the appointment is not made immediately.

Cunningham named Dr. David Trader to prepare a mental capacity report on Meisner and delayed until July 1 a decision on whether to appoint a temporary conservator. Newton has recommended that Frumeh Labow, who has a lengthy background in social work, be named to fill the role.

Meisner objected to the appointment of a temporary conservator.

“I just want all this nonsense to stop,” he said.

Cunningham said he was being careful to make sure he made the right decision.

“I just want to make sure people like you are protected,” Cunningham told Meisner.

Newton and his lawyers allege that Meisner’s wife, Lana Rae Meisner, has done little to help her spouse of nearly two decades battle addiction issues, primarily involving alcohol, but also including cocaine.

Newton’s lawyer, Troy Martin, included in his court papers a declaration from a nurse, Marla Dodd, who said she has known Meisner for about a year and that she and her husband, Bobby, are longtime fans of the Eagles.

Dodd stated that on April 14, Lana Meisner left a voice message in which she said in a slurred voice that she used cocaine and worried that Dodd’s husband, a police officer, might arrest her for doing so.

“You know, I do it, but I’m a functioning person,” Lana Meisner said, according to Dodd.

Lana Meisner also said her neighbors were spying on her and that the night before, there were two children in her back yard, one of whom was wearing a clown suit, according to Dodd.

Cunningham said that while the information Dodd presented about Lana Meisner concerned him, her alleged behavior did not pass the threshold of presenting an immediate threat to the musician.

“It’s borderline,” the judge said. “Plus, you have the husband-wife issue.”

Meisner’s court-appointed attorney, John Rogers, and his private lawyer, Bruce Fuller, both said they have talked to their client and found him to be lucid. They said he does not need anyone to look after his personal and financial needs.

Rogers also said Meisner has had success in fighting his addictions.

“He’s in a very stable environment when he is at home and my client is in absolutely no danger whatsoever,” Rogers said.

Meisner said he is not worried about his spouse abusing him.

“I love my wife,” he said.

Lana Meisner was present in the audience, but did not speak during the hearing.

But Dana Scott Meisner said in a separate declaration that he, too, is concerned about his father’s health and says his stepmother is “providing (his father) with the alcohol that is slowly killing him.”

Lana Meisner believes she can more easily “influence and manipulate” her husband when he drinks, Dana Meisner says.

He also accused his stepmother of trying to isolate the musician from his family members since the two married in the mid-1990s.

“This is a pattern with Lana,” according to Dana Meisner. “Ever since she has been married to my father, she has thrived on conflict and has attempted to create conflict within the family.”

Martin, who favored going forward today with appointing the temporary conservator, said addictions “are not something you switch off like a light switch. Our concern is Mr. Meisner’s health.”

Martin said after the hearing that he was disappointed the judge did not give Meisner immediate protection, but added he looked forward to the July 1 hearing.

The Eagles were founded in 1971 by Meisner, Glenn Frey, Don Henley and Bernie Leadon. Meisner co-wrote and sang the hit, “Take it to the Limit.”

— City News Service

Full Article & Source:
Eagles co-founder Randy Meisner to undergo mental evaluation in conservator battle
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Public can comment on proposed changes to Missouri's guardianship law

May 12, 2015, 11:00 pm
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ST. LOUIS • Four years in the making, a task force last week finished a draft revision to a state law that affects some of Missouri’s most vulnerable residents — 30,000 wards or clients deemed too incapacitated to make decisions for themselves.

Another 23,000 cases involve minors whose parents were found unable to make choices for them.

The law covers people with mental illness, head injuries and other issues that cause them to have court-appointed guardians as substitute decision makers. Guardians typically have the ultimate say on anything from a ward’s roommate to personal property to life support.

“As we review the law, we are making sure people are protected before their basic civil liberties are taken from them,” said Dan Wheeler, a former probate commissioner in Jackson County who is part of the Missouri Working Interdisciplinary Network of Guardianship Stakeholders, or MO-WINGS.

MO-WINGS started meeting in 2012 to review and recommend changes to the 100-page guardianship law. The law last underwent a major revision in 1983.

“It’s good to look at any body of statutes at least every 20 years because things can get very outdated in the Missouri code if you aren’t careful,” said David English, a co-chair of the task force and law professor at the University of Missouri-Columbia.

Among the possible changes, the task force seeks a better balance between safety for wards and protection of civil liberties. It wants to increase the possibility of a limited guardianship, so some wards can be more involved in decision making if a probate judge agrees that is appropriate, for instance to get permission to vote or change residences.

The task force wants to update the wording and organization of the statute so families can more easily understand the law before they lose parental rights, or the power to make decisions for spouses and relatives.

The proposed changes coincide with dramatic increases in the number of people the law affects.

Missouri had 29,908 adult wards under guardianship in 2014, a jump from 21,356 in 2001, according to Wheeler, who reviewed statistics provided by the Missouri Supreme Court. The number of minors under court-ordered guardianship doubled in that period, from 11,769 in 2001 to 23,239 in 2014. Those figures include people who have been given conservators to oversee financial decisions.

The number of elderly wards is expected to continue to rise as baby boomers age.

Meanwhile, heightened caseloads can take their toll on court-ordered guardians. Many are family members or friends. But the guardian of last resort is the public administrator — one in each county and the city of St. Louis. They take care of physical needs, placement in nursing homes or more restrictive environments for those who do not have anyone to care for them.

The decisions public administrators make also cover daily life, including whether their wards can drive, marry or divorce. Technically, wards aren’t even supposed to buy anything without permission.

Some wards have been debilitated by car accidents. Others have lost their mental ability to function over time because of dementia and associated age-related illnesses. Some are referred by hospitals that can’t discharge people who can’t take care of themselves.

“Today, I had to give consent to remove life support,” Jefferson County Deputy Public Administrator Mark DeClue said last month about a 79-year-old man who fell in a hospital. “You wouldn’t have wanted to talk to me three hours ago. I hardly knew this gentleman and he’s under my care. It’s not easy to say, ‘OK, let him go.’ ”

DeClue said the man became a ward in 2014 after he became depressed and combative. A probate court decided his family wasn’t able to make decisions for him.

DeClue said guardianship cases have “blossomed” in recent years. Ten or 15 years ago, he said the typical case involved an elderly person in a nursing home whose family stopped making payments. Now, he said, younger people with mental illness and drug issues are “coming our way very, very rapidly.”

St. Louis County Public Administrator Tom Arras said the whole idea is to protect a person who is not capable of making his or her own decisions. He’s concerned that proposals to update the guardianship law could pit the ward and guardian against each other.

“Reforms are going to make it harder for guardians to perform their function,” he said.

Christopher Cross, a court-appointed guardian from Springfield, Mo., said while reforms are needed he is concerned the wrong kind could cause “serious public safety risks when forensic clients are involved.”

At this point, the draft changes to the statute are only recommendations. Members of the MO-WINGS task force said public input will be sought until November. Until a website is developed, people can contact the Missouri Developmental Disabilities Council or co-chairs of the task force for comment.

A formal proposal is expected to be presented to the 2016 Legislature.

Full Article & Source:
Public can comment on proposed changes to Missouri's guardianship law
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Ohio Advocate Tom Fields Attends Regional Meeting of the WHCoA

May 13, 2015, 10:00 pm
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Doug Franks: Free Ernestine!

May 13, 2015, 10:30 pm
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This is Doug Franks discussing the circumstances that led to his mother Mrs. Ernestine Franks being put under court-ordered guardianship, even though all medical and psychiatric tests showed Mrs. Franks had no mental impairment, was not suffering from any type of dementia, but the Trust officer and the judge decided it would be best to "protect" Mrs. Franks.

See Also: NASGA: Ernestine Franks, Florida VictimFreeErnestine.com
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Throw Back Thursday: 96-Year-Old WWII Connecticut Veteran's Plight Brings Call for Probate Court Reform

May 13, 2015, 11:00 pm
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Note: Originally published October 24, 2014:
Ideally, when 96-year-old Louis Russo had to leave his home temporarily, the probate judge would have appointed someone who understood his wishes and who wanted to carry them out.

Instead, under the care of a court-appointed conservator, the World War II veteran, who had always lived independently, was stripped of his rights, relegated to a nursing home and drained of his life savings.

Russo's friends and supporters are channeling their energy into getting him back into his New Fairfield house by Veterans Day.

Meanwhile, their outrage has intensified calls for review, reform and legislation to ensure that there aren't more cases like his.

"I have great respect for the vast majority of conservators in Probate Court, but I am aware that there have been a few very bad cases, and that is a few too many," said Keith Bradoc Gallant, a New Haven attorney and leading authority on probate procedure. "We just need to work on fixing that."

At issue is how to prevent misconduct when a court-appointed conservator is given full power over a person deemed disabled by age or mental incapacity.

Connecticut can learn from other states that use social workers as conservators, because they are trained to navigate the social service system, Gallant said. There is also a growing sense nationwide that the power of conservators should be checked, he added.

Although experts argue that misconduct is rare among conservators in Connecticut probate courts, activists warn that as the population ages, the demand for conservators is going to grow.

All the more reason to be sure that conservators are well-qualified and well-monitored, a top court official said. "I would like to build a program for statewide training and support for conservators," said Probate Court Administrator Paul Knierim. Knierim, who manages the state's 54 probate courts, said he is open to establishing a licensing program for conservators, like those in other states.

Russo's story
Had there been kin in Russo's life following a fall at his home two summers ago, when a social worker reported to Probate Court that he could no longer manage his affairs, the judge possibly would have considered naming a family member as conservator.

Besides wanting a conservator competent enough to manage a person's financial and health affairs, the probate judge typically looks for someone compassionate enough to keep the person's best interests at heart.

"You are talking about a combination of factors that really are challenging," said Gallant, who serves as the American College of Trust and Estate's representative to the National Guardianship Association. "The problem is how you find individuals with integrity to take on these very difficult tasks."

Since Russo never married and his closest kin was an 88-year-old sister in Florida too frail to care for him, Housatonic Probate Judge Martin Landgrebe appointed as conservator a man Russo had never met, Mark Broadmeyer, whose qualifications for the post were not clear.

Instead of putting Russo in a veterans home, where he could have stayed without charge while repairs to his own home were made, Broadmeyer placed Russo in a Danbury nursing home, where he racked up bills he could not afford.

Broadmeyer spent Russo's $35,000 in life savings and $10,000 in Social Security income on repairs and his own fees over the next 16 months, ignoring Russo's pleas to return home.

Broadmeyer even rented Russo's home out without the judge's permission.

Probate reform Connecticut's probate courts were reformed most recently in 2009, when more than 130 courts were consolidated into today's 54. And for the first time, judges were required to be attorneys. Complaints about conservators are handled in Probate Court by the same judges who appointed them.

In Russo's case, as soon as Landgrebe learned that Broadmeyer had rented out the home behind his back, the judge ordered Broadmeyer to evict the tenants and pay the eviction costs himself. Broadmeyer quit instead.

Knierim refused to comment on the case, because Broadmeyer is being investigated by Russo's newly appointed conservator, Danbury attorney Dean Lewis. Lewis' solution was to reimburse part of the tenants' expenses if they agreed to leave by Oct. 20, which they did. Lewis plans to begin his investigation of Broadmeyer once Russo is back in his home. State Sen. Michael McLachlan, R-Danbury, said the judge would have seen red flags much sooner with stricter reporting requirements that could have spared Russo months of suffering. "I'm hopeful to have some legislation to introduce soon," he said.

Source: a href="http://www.ctpost.com/local/article/WWII-veteran-s-plight-brings-call-for-probate-5847546.php#photo-7046513">WWII Veteran's Plight Brings Call for Probate Court Reform

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The story of a 96 Year Old WWII Combat Veteran, his battle for dignity and justice, and those that would become his new family and his new alliance.

Operation Vet Fit founder and Veterans Advocate, US Marine Veterans, Daniel R. Gaita assist 96 year-old, WWII Combat Veterans Louis Russo during his Jan 28th, 2015 Probate Court Hearing. This video is a short segment from a 5 hour hearing.


Source: YouTube


Source:  YouTube
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Tonight on T.S. Radio: Ted Chabasinski: Barbaric Electroshock Still Used on Adults, Children

May 14, 2015, 3:34 pm
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Ted Chabasinski is an attorney and human rights activist in Berkeley, California. In 1944, as a 6-year-old boy so intellectually gifted he jumped from first grade to third he was taken from his foster home in the Bronx to New York’s Bellevue Hospital where he was pronounced “schizophrenic”, because his mother had been labelled “schizophrenic”. There he began a series of 20 electro-convulsive shock treatments. The boy, Ted Chabasinski, was one of hundreds of children used in ECT experiments. Tests since condemned as barbaric. He remained an inmate in a state psychiatric hospital until the age of seventeen. Chabasinski survived and became active in the civil rights movement and ultimately an attorney.

Chabasinski led a successful effort to ban ECT in the city of Berkeley, California, in 1982, which voters overwhelmingly passed, only to be overturned by well-funded psychiatric interests.

In January 2007 Chabasinski acted as the attorney for the late psychiatric survivor activist and author Judi Chamberlain, the medical journalist and author of Mad in America and Anatomy of an Epidemic, Robert Whitaker, and the director of MindFreedom International David Oaks in opposing a motion by Eli Lilly to extend an injunction to conceal documents that revealed that the company had known for the previous decade of the potentially lethal effects of Zyprexa ( an antipsychotic )and had engaged in an illegal off-label marketing campaign.

As a patients’ rights lawyer, Chabasinski continues to champion human rights, and writes, speaks, and blogs on issues of individual rights and freedoms.

Most recently, he has organized an International Day of Protest Against Shock Treatment, being held on May 16, 2015. There will be demonstrations in many countries and cities around the world.

4:00 pm PST … 5:00 pm MST … 6:00 pm CST … 7:00 pm EST

LISTEN to the show live or listen to the archive later
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Former Fulton nursing home worker indicted on assault

May 14, 2015, 10:00 pm
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FRANKFORT, Ky - A former Fulton health care worker was indicted on an assault charge, Kentucky Attorney General Jack Conway announced Wednesday.

The woman, 34-year-old Crystal Marie Leyhue, was a caregiver at Haws Memorial Nursing and Rehabilitation Center in Fulton. Leyhue is alleged to have placed a hot pepper into an 82-year-old resident's mouth on Nov. 4.

The attorney general's office says the incident was video-recorded, and that Leyhue was heard laughing at the octogenarian's reaction. Another employee who saw what happened reported it to her superiors, and Leyhue was fired.

Leyhue currently lives in Dresden, Tennessee, and a summons will be issued for her to appear for arraignment. She was indicted on one count of fourth degree assault. If convicted, she could be sentenced to up to a year in jail.

Conway's Medicaid Fraud and Abuse Control Unit investigated the case after a referral from the Department of Community Based Services. Fulton County Attorney Rick Majors is prosecuting the case.

Full Article & Source:
Former Fulton nursing home worker indicted on assault<
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Batavia Nursing Home owner faces charges in Mohawk Valley case

May 14, 2015, 10:30 pm
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By Paul Mrozek 
The owner of Batavia Nursing Home pleaded not guilty last week to a violation of health laws at another skilled nursing facility of which he is part owner, Mohawk Valley Nursing Home in Ilion, N.Y.

Gerald “Jerry” Wood III, 30, of Dix Hills also allegedly tried to cover up the violations at the Mohawk Valley facility, according to the office of State Attorney General Eric Schneiderman.

Wood purchased Batavia Nursing Home for $2,525,000 in 2013, while the 62-bed facility was in bankruptcy court. The defendant owns multiple nursing homes throughout the state.

Wood appeared May 7 in Herkimer County Court to answer charges in connection with the Mohawk Valley skilled nursing facility. The allegations are that Wood and three other owners or senior administrators of Mohawk Valley Nursing Home suppressed and covered up two medical incidents that occurred in May 2013.

The indictment alleges that a patient with severe dementia committed unlawful sexual conduct against another resident and that the incident occurred in an unsupervised dining room. A second charge in the indictment is that a serious medication error went undetected for several days.

Wood also allegedly eavesdropped on state investigators as they interviewed a nursing home employee.

Wood pleaded not guilty to four charges, two counts of willful violation of health laws, one count of eavesdropping and one count of fifth-degree conspiracy.

A call to Batavia Nursing Home Tuesday was referred to Gerald Wood III’s attorney, Richard Harrow of Albany. Harrow could not be reached to comment Tuesday.

The press office of the state Department of Health could also not be reached to comment.

The indictment filed in Herkimer County Court includes a total of 45 counts against the four defendants. One of Wood’s relatives, Justin Wood, 29, of Dix Hills, also a part-owner of the Mohawk Valley business and its technical manager, was charged with fifth-degree conspiracy.

Justin Wood and his co-defendants also allegedly destroyed electronic evidence of the two medical incidents.

The maximum penalty for the felonies the defendants face, eavesdropping, falsifying business records and tampering with physical evidence, is 1 1/3 to 4 years in prison. The maximum sentence on the misdemeanor charges of willful violation of the health law, criminal possession of a forged instrument, forgery and conspiracy is one year in jail.

An ironic development concerning Batavia Nursing Home is that Marc Korn, its former owner,  faces criminal charges in federal court in Buffalo. Korn, 58, owned Batavia Nursing Home when the business filed for bankruptcy in 2011.

A federal grand jury indicted Korn last month. He allegedly lied to FBI investigators and concealed assets from his creditors, including a life insurance policy transferred to another individual.

Charges against Korn include wire fraud, bank fraud, failure to pay employment taxes and making false statements to law enforcement, according to the office of U.S. Attorney William J. Hochul Jr.

The state Department of Health, in response to numerous problems at Batavia Nursing Home when Korn owned it, appointed an administrator in 2012 to run the facility. One of the issues at the nursing home prior to the bankruptcy filing was bounced employee paychecks.

Korn’s trial is slated to start May 20 in U.S. District Court in Buffalo.

Full Article & Source:
Batavia Nursing Home owner faces charges in Mohawk Valley case
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Trial Court Slams Guardian for Theft of Assets and Ignorance of Duties

May 14, 2015, 11:00 pm
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Written by Jordan Hammer • May 13th, 2015

Jeffrey Skatoff
A plenary guardian in Florida is vested with the exclusive power to manage and administer the Ward’s property.  This power is balanced, and the potential for abuse safeguarded, by an obligation on the part of the guardian to account for his/her financial activities.

Fla. Stat. § 744.3678 explains the data which a guardian’s annual accounting is required to contain; namely receipts, expenditures, disbursements, and capital gains/losses of guardianship assets.  Though not interpreted by any appellate court to date, this statute further suggests that a guardian must account for assets in the Ward’s name and for assets held by the Ward’s revocable trust if the guardian is also serving as trustee of said trust.  Interested persons, such as next of kin, are permitted under Florida law to object to any transaction or information disclosed in one of these guardianship accountings.  Fla. Stat. § 744.367.

Recently, we successfully litigated objections to a guardian’s accountings in a Palm Beach County guardianship matter.  In our case, the Ward was adjudicated totally incapacitated in April 2011 and one of her two sons was appointed as her plenary guardian with authority to exercise all delegable legal rights and powers of the Ward.  Because of the Ward’s incapacity, the Guardian also succeeded the Ward as trustee of the Ward’s revocable trust.  Our client was the Ward’s other son, and brother of the Guardian.

From the inception of the guardianship, the Guardian in this matter has been chronically incapable of filing an account which the Court would accept.  As recently as March 2014, the Guardian was still seeking Court approval of his accounting for the fiscal year April 2011 - April 2012.  When the Guardian filed an amended accounting for this period, we objected on grounds that the Guardian (i) improperly commingled guardianship and trust assets and (ii) used the Ward’s funds/Trust funds for his own benefit and/or stole from the Ward.  With respect to the latter ground, we noted that there were substantial expenditures of funds for extensive renovations to the home of the Guardian’s girlfriend.  The Guardian maintained that these expenses were justified since the Ward was living in the home of the Guardian’s girlfriend. The Court sustained our objections and ordered the filing of a Second Amended Annual Accounting and an Accounting of Trustee.  The Guardian filed these accountings in February 2015.

We objected to the Second Amended Annual Accounting and an Accounting of Trustee on numerous grounds.  Notably, these attempted accountings by the Guardian disclosed for the first time that the guardianship and/or Trust loaned money to the Guardian.  That is, the Guardian maintained that any transactions which appeared on paper to suggest that he was spending the Ward’s funds or Trust funds on himself were in actuality part of a large-scale loan made to the Guardian.  These accountings further set forth the amount of funds spent on the aforementioned renovations to the home of the Guardian’s girlfriend.  We objected to existence of any loans, as the Guardian was not authorized to loan money to himself.  See Fla. Stat. §§ 744.446; 744.454.  We further objected to the renovation of the girlfriend’s home as being beyond anything reasonably necessary for the Ward’s care (i.e., the renovations served the interests of the Guardian and his girlfriend).  It should be noted that the amount at issue in the objected-to transactions exceeded several hundred thousand dollars.

The Court sustained most of our objections and made detailed findings regarding the character of the Guardian’s conduct.  The Court’s order, which has been reproduced here in a redacted form, provides great insight into how the purposes of the guardianship statutes—protecting the rights of incapacitated persons and managing their financial resources—can be effectively implemented and furthered through review of a guardian’s conduct.  As is readily apparent from the Order, the Court is greatly disturbed and frustrated by the Guardian’s actions, describing them as unconscionable, unacceptable, reprehensible, and “inapposite to . . . fiduciary and statutory duties as a Trustee and Guardian.”  The Guardian’s conduct is characterized as a “systematic and purposeful looting of assets,” representing an “attempt to place . . . assets outside the protection of the Court and the law, and to deny access to those assets to any other interested person.”  The Court suggests that the Guardian’s conduct may even be criminally actionable.  In rendering its decision, the Court explains that the Guardian will again have to account (for a fourth time) and will be liable to our client for attorneys’ fees and surcharge.

The factual findings and conclusions of law set forth in the Court’s order cannot be understated as the Court chronicles its frustrations with the Guardian in excruciating detail, creating in the process an example which all future guardians should endeavor to actively avoid emulating.  This case represents a victory not just for our client and our firm, but for those involved in guardianship matters generally.  Put simply, Courts will hear objections and will review all the evidence, and if warranted, will punish wrongdoing by guardians.

Full Article & Source:
Trial Court Slams Guardian for Theft of Assets and Ignorance of Duties
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Bonnie Kraham: Taking care of loved ones costs families billions

May 15, 2015, 10:00 pm
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More than 44 million people in the United States act as caregivers for elderly or disabled loved ones, devoting significant amounts of time, money and energy.
According to researchers at the RAND Corporation think tank, the informal cost of elder care in the United States paid by caregivers out of their own funds is more than $522 billion every year, representing more than 30 billion hours of labor. Both personal and opportunity costs of caregivers are being ignored, causing serious problems for caregivers across the country.
The RAND Corporation calculated the cost of unpaid work caregivers perform for their elderly loved ones in addition to the opportunity cost of caregivers, meaning caregivers lose their own income due to the time spent in caregiving. The $522 billion spent on elder care every year by caregivers is more than all federal spending on Medicare in 2013.
The new research used 2011 U.S. Census Bureau information about the amount of time people spend helping elderly relatives and friends.
The RAND study is similar to a report published by the MetLife Foundation in 2011 that estimated the average amount of lost wages and Social Security benefits for caregivers over the age of 50 to be more than $300,000. The total aggregate loss in wages and Social Security benefits across the country was almost $3 trillion. Unfortunately, government entities and nonprofit organizations do not provide caregivers with much needed financial help.
Caregivers often use their own money taking care of loved ones out of necessity. The Medicare program does not cover any type of long-term care, and elderly loved ones do not qualify for Medicaid unless they fall beneath the income and asset threshold for care. Some caregivers rely on their elderly loved one's long-term care insurance coverage, but very few people have long-term care insurance and many companies increased their premiums to unsustainable rates.
Not much help is on the horizon from legislative action. Congress has yet to renew the Older Americans Act that provides funding for elderly services such as nutrition and transportation. The federal commission on long-term care has yet to agree on financing long-term care, a debate dating back to 2012.
Experts agree there is no simple solution to the issues surrounding the informal cost of caregiving. Reforms will require a combination of private insurance and public assistance from state and federal institutions. Some have suggested the creation of a social insurance system to cover the costs of any catastrophic care needs, while others suggest that employers need to do more in terms of helping employees who double as caregivers. Other ideas to help cover the gaps in the informal and astronomical costs of caregiving include elder care benefits and flexible workplace schedules.
The lesson here for potential caregivers may be to encourage parents to obtain long-term care insurance coverage so that, in the event a son or daughter has to leave their job to provide caregiving, the insurance can replace their lost wages.
Bonnie Kraham is an attorney practicing elder law estate planning with Ettinger Law Firm, 75 Crystal Run Road, Middletown. She can be reached at 845-692-8700, ext. 119 or bkraham@trustlaw.com. This column is intended to provide general information, not legal advice.

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Bonnie Kraham: Taking care of loved ones costs families billions
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Couple arrested for elderly scam on family members

May 15, 2015, 10:30 pm
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Amy Smith
BOONE COUNTY, MO -- Boone County Sheriff’s investigators say a 92-year-old woman and her 63-year-old daughter are the victims of a family scam.

Detectives said Davey and Amy Smith stole more than $15,000 from the 2 victims by cashing social security checks.

Davey Smith
Amy Smith is the niece of the older woman and the cousin of the younger senior citizen.

The victims received about $2,000 a month in social security benefits.

Deputies arrested the Boone County couple after the Department of Health and Senior Services got a hotline call about the alleged crime on Ketterer Road near Route B north of Columbia.

Court documents obtained by KRCG 13 indicate the Smiths also charged their alleged victims $400 a month for rent.

Investigators said the victims were living under substandard conditions.

Boone County Sheriff’s Detective Tom O’Sullivan said, “There are situations where reasonable, responsible people do have access to an elderly relative’s financial resources and they act appropriately. This wasn’t the case here.”

Prosecutors charged Davey and Amy Smith with financial exploitation of the elderly and third degree elderly abuse.

Full Article & Source:
Couple arrested for elderly scam on family members 
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Peter Falk's Daughter: Rights Bills Sparked by Dad's Case

May 15, 2015, 11:00 pm
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Click to see video

The daughter of beloved character actor Peter Falk is waging a state-by-state campaign to grant children access to an elderly or incapacitated parent who is under someone else's care, and on Thursday she told Newsmax TV that her visiting-rights bills are advancing in New York and California.

"The visitation bill basically is a protection, a law that protects adult children and ailing elderly parents when your parent is being isolated or secluded away from family, friends and loved ones," Catherine Falk told "Newsmax Now" co-hosts Miranda Khan and John Bachman.

Falk was caught up in a very public battle over access to her father, best known as the rumpled detective in the classic network television series, "Columbo." Diagnosed with Alzheimer's disease in his later years, he died in 2011 at age 83 at his home in Beverly Hills, Calif.

Catherine Falk said at the time that her stepmother, Peter Falk's second wife, Shera, banned her from the funeral.The bulk of the actor's estate went to Falk's second wife, according to reports.

In the years immediately preceding his death, "My dad was basically incapacitated," said Falk.

"He had Alzheimer's disease, he had just gone through hip replacement surgery, and nobody could access my dad," she said.

She went to court to contest the exclusion and learned that California law favors spouses in family disputes over probate, power of attorney and conservatorship, and that she would have to legally challenge her stepmother's designation as conservator, she said.

After her father's death, Falk said, she and her lawyer decided to seek a change in the law. The result is the Peter Falk Bill introduced in the legislatures of California and the actor's home state, New York, by lawmakers who have taken up the cause.

"This streamlines the process where an adult child can go into court and petition the court without having to go through a long, lengthy battle in probate court and spend $100,000," said Falk. "It holds the caretaker accountable for any type of elder abuse, and it also allows children the ability to see their parents."

Falk said she would like to see federal legislation and for now is concentrating on getting states aboard. She said she is not fundraising, just trying to create awareness and momentum.

Until any Falk bill becomes law, there is "absolutely nothing on the books" to protect others from the same "awful" experience she had, she said.

"There's no legal recourse that adult children have currently that allows them to get any visitation to their parents," said Falk. "They're isolated, and isolation means elder abuse. We need a law to protect us and to protect our parents so that we can have a relationship in their final years and days of their life."

Full Article & Source:
Peter Falk's Daughter: Rights Bills Sparked by Dad's Case
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Senate passes elder guardianship bill

May 16, 2015, 10:00 pm
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State Senator Rick Jones
LANSING – The state Senate has passed a bill from state Sen. Rick Jones, R-Grand Ledge, meant to prevent Michigan senior citizens from being taken out of state and abused.

Jones’ Senate Bill 270 allows Michigan judges to take jurisdiction over questions of elderly guardianship if certain criteria dealing with everything from the wishes of the senior to how long they’ve lived in the state to where their property is.

In a statement, Jones said his bill was inspired by a Michigan woman whose son took her to another state and put her on drugs that made her seem incompetent, which he used to have himself appointed guardian so he could “drain her bank accounts.” The woman’s family in Michigan had to fight to bring her back here and “once off the drugs, it was clear the woman did not need a guardian,” the statement said. That case was made more difficult because a Michigan judge found he had no jurisdiction.

Under the bill, “Michigan courts should have the power to stop someone from taking advantage of our most vulnerable residents — our seniors,” Jones said in a statement.

The bill passed 37-0 and now heads to the state House.

Full Article & Source:
Senate passes elder guardianship bill
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Retirement Home to Pay $390K to Settle Lawsuit

May 16, 2015, 10:30 pm
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NORFOLK, Va. (CN) - A Norfolk, Va., retirement home will pay $390,000 to settle federal claims it violated the Fair Housing Act by failing to afford all of its disabled residents equal access to facilities, sponsored events and motorized wheelchair usage.

In a complaint filed May 11 in the Norfolk Federal Court, the Justice Department said the Fort Norfolk Retirement Community, also known as Harbor's Edge, instituted policies that effectively segregated its resident population into distinct groups based on their level of disability and well-being.

A consent order filed at the same time as the complaint, and still awaiting the approval of U.S. District Judge Henry Morgan Jr., says that Harbor's Edge will pay $350,000 to residents harmed by the policies, and $40,000 to the federal government.

The agreement also requires Harbor's Edge to appoint a Fair Housing Act compliance officer and implement a new dining and events policy, a new reasonable accommodation policy and a new motorized wheelchair policy.

According to court documents filed by the Justice Department, Harbor's Edge is divided into two types of living facilities.

Independent living units are for those who need no assisted living and reside in a 17-story building called "Residential Tower." The assisted living, nursing and memory support residents live in a four-story building called the "Healthcare Building." The Residential Tower and Healthcare Building are connected by an interior corridor on the first floor.

The Residential Tower has four dining areas available to the public as well as residents. The Healthcare Building has several dining rooms as well. The assisted living unit has two dining rooms, and the nursing and memory support unit each have one dining room.

Harbor's Edge also hosts community events for residents and members of the public as marketing tools, including, for example, a party for the July 4th holiday.

Prior to May 2011 all residents of the Healthcare Building were permitted to eat at dining rooms located in the Residential Tower and attend events with the residents of the Residential Tower and members of the public.

But beginning in May 2011 and continuing to the present, the government says, Harbor's Edge has adopted a series of policies that prohibit, and then limited, residents living in the Healthcare Building from eating at dining rooms located in the Residential Tower and attending events with residents of the Residential Tower and the public.

Harbor's Edge adopted these policies because they wanted to market its facilities as a place for "younger seniors" who wanted an active lifestyle, the government says.

Because of these policy changes, the complaint says, spouses and friends who had dined and attended events together were no longer able to do so in the independent living areas.

On or about March 5, 2012, after several other dining and event policy revisions, Harbor's Edge again revised its policy allowing all residents of the Healthcare Building to dine in the independent living dining rooms with independent living residents in the Residential Tower if they passed a health screening, obtained a physician's consent and signed a release of liability. The March 2012 policy prohibited all residents living in the Healthcare Building from attending any events designed by Harbor's Edge as marketing events.

After the adoption of the dining room policies, residents and their families voiced opposition through letters to Harbor's Edge management and Board of Directors, met with the Virginia Long-Term Care Ombudsman, and circulated a petition to the Board of Directors asking that the policies be rescinded.

The Justice Department also says that beginning in about 2006 and continuing at least until April 2013, Harbor's Edge maintained a policy requiring any resident who used a motorized wheelchair or scooter to obtain prior approval from Harbor's Edge Staff, obtain liability insurance and pay a $300 non-refundable deposit before using their mobility aids on community property.

In a written statement, the management of Harbor's Edge said it is committed to full compliance with all statutory and regulatory requirements applicable to its operations, and feels very strongly that the Justice Department was wrong in its view that that engaged in discriminatory behavior.

"We are committed to providing the highest quality of services to our residents. Protecting their health and safety is our top priority," said Neil Volder, Executive Director and Chief Executive Officer of Harbor's Edge, in an interview with Courthouse News. "Our desire has always been to work jointly with the federal government and other regulatory authorities to clarify the laws pertaining to dining and event policies specific to those residents that are at a greater risk when dining or participating in activities without supervision of medical professionals."

Volder described Harbor's Edge as a success story and said he recently met with archtects to build a new residential building.

"We have about 350 residents and all of them are friends," he said.

Volder explained that Harbor's Edge implemented the new dining and events policy based on a "good faith belief" that it would be violating state regulations by continuing a longstanding policy of allowing nursing and assisted living residents to dine on our premises without having qualified medical staff present.

"After several medical incidents, two of which could have been life threatening, we had been advised by our legal counsel, liability insurer, and state regulators that our practice of allowing Healthcare residents to dine in an unregulated dining room posed risks to residents and created liability for the community," Volder said.

The problem for Harbor's Edge, he said, is that bureaucratic wheels move slowly. It took time to get the clarification the community needed to ensure it was both properly serving the desires of its residents and abiding by the law..

"Within 24 hours of receiving the state Department of Health's written assurance that allowing nursing residents to dine in an unregulated environment would not jeopardize our state license, we implemented revised dining policies that are almost identical to the policies just approved by the DOJ," Volder said.

The company said it has worked closely with the Justice Department over the past two years "to create policies and procedures that would ensure that residents would have access to all dining venues and activities but still comply with the state regulations in place to assure the safety and well-being of residents with standard medical protocols for nursing and assisted living."

Harbor's Edge said it agreed to the settlement to avoid the "enormous cost and distraction of litigation."

"Since the consent decree largely validates the dining policies we adopted prior to their investigation, and the cost our settlement is covered by insurance, this path was clearly the most beneficial for the community," Volder said.

"What was won? It's difficult to say," he continued. "I suppose what was really won in this case is that other communities like ours will now have a blueprint for what the DOJ will accept."

Full Article & Source:
Retirement Home to Pay $390K to Settle Lawsuit
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Beware The Con Game Of Conservatorships

May 16, 2015, 11:00 pm
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byRichard Eisenberg

Since May is Older Americans Month — established by JFK in 1963 when it was called Senior Citizens Month — it’s an appropriate time to sound an alert about a con game being played on some older Americans. I’m talking about crooks who are appointed as conservators (or guardians) to manage someone’s affairs and then turn their wards into financial abuse victims.

This scourge was brought to my attention by the new book, The Con Game: A Failure of Trust, by T.S. Laham, a business professor at Diablo Valley College in the San Francisco Bay Area. In the book, Laham writes that America’s guardianship system is “an open invitation to potential abuse.”

Good and Bad Conservators

Roughly 1.5 million adults are under guardianship, according to a 2013 AARP estimate. Of course, many court-appointed conservators are wholly reputable; some, such as the one Mickey Rooney had, are even brought in to quash alleged elder abuse.

(MORE: Mickey Rooney’s Elder Fraud Legacy)

But in other cases, Laham says, conservators or guardians steal from, neglect or physically abuse the people they’re supposed to assist. A 2010 Government Accountability Office guardianship review of 20 cases found that “guardians stole or otherwise obtained $5.4 million in assets from 158 incapacitated victims, many of whom were seniors.” The National Association to Stop Guardian Abuse blogs and reports on the latest news on guardianship abuse.

I recently interviewed Laham about her conservatorship concerns and to get her advice for families considering getting a conservator appointed for a relative or eager to have an unscrupulous conservator removed. Highlights:

Next Avenue: Why did you write ‘The Con Game’ and who is it for?

Laham: I decided to write it to shine a public spotlight on elder abuse in America. The problem is escalating.

Is the problem with conservators that family members or supposed friends are appointed conservators and they steal? Or that courts are appointing other people who turn out to be crooks?

All of the above.

I’m trying to show that there are some problems in the system that are fixable. Most have to do with oversight and accountability. I assumed that the system was well-regulated and controlled, but that’s not true.

(MORE: When Elder Abuse Hits Home)

How is the conservator system supposed to work?

A judge appoints a “reasonable” person or organization as a conservator or guardian to make medical and/or financial decisions for an adult who would be considered a conservatee or a ward. The conservatorship ends when the conservatee dies.

What are the problems with conservatorships?

Conservatorships are not a bad thing; they’re necessary. It’s the execution of them that could be improved at times.

But people need to understand that conservatorships should be considered as the most restrictive form of court intervention. They can strip people of their individual rights.

And a conservatorship can create more complications; the family may need to sit on the sidelines because the conservator removes decision-making control from them.

What else concerns you about them?

Conservatorships are costly. There are filing fees, maybe attorney fees and ongoing legal costs. Conservator fees range from $50 an hour to $135 an hour or more. Trustee and other professional asset manager fees for high-value estates typically run from 1 to 1.5% of the asset value annually.

Is part of the problem that court-appointed guardians lack training for the job?

That is precisely correct. It’s a huge responsibility to be a conservator or a guardian. Most of time these individuals do incredible loving, caring compassionate jobs caring for relatives or friends. But the problem is they may be overwhelmed or undertrained. One survey found that fewer than 20% of courts gave conservators and guardians instructions on carrying out their duties and legal responsibilities.

Is it a good idea to bring in a conservator when a family can’t agree on how to manage their parent’s affairs?

If you want to use a conservatorship for a family dispute about an incapacitated elderly relative, that may not be the right thing to do.

A better option is to go through facilitative meditation, unless the situation is so polarized that the only other option is to go to conservatorship. A conservatorship should be a last resort as a solution to a family dispute.

What would you advise families to do if they think a relative does need a conservator?

I strongly urge people to see an attorney who specializes in this area or in elder law and discuss whether conservatorship is an appropriate solution to the situation. The National Academy of Elder Law Attorneys is an excellent resource; they will point you in the right direction.

If a son thinks his mother is unable to manage her affairs, for example, he should provide the attorney with information to prove this to file a petition with the court. If the judge believes it’s warranted, he or she will grant the power to the son.

I’d also recommend that a family get help: There are care-management services and caregiving alliances. For financial assistance, get a financial adviser.

For someone appointed as a conservator, the federal Consumer Financial Protection Bureau has a helpful guide, called Managing Someone Else’s Money.

And what should a family do if a conservator was appointed and they spot danger?

The family has to go to court to see if they can get the conservator removed. You have to prove the person isn’t doing the job — maybe he’s neglecting mom’s needs or misusing assets. It’s an uphill battle.

Full Article & Source:
Beware The Con Game Of Conservatorships
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FDA Black Box Warnings: Atypical Antipsychotics

May 17, 2015, 10:00 pm
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Study: Texas Nursing Homes Among The Worst In The Nation

May 17, 2015, 10:30 pm
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When it comes to nursing homes, Texas has the highest percentage of low ranked facilities than any other state. according to a report from Kaiser Health News.

Julie Appleby is a reporter for Kaiser Health News, a nonprofit news service committed to in-depth coverage of health care policy and politics. Her article “A top-rated nursing home is hard to find in Texas and 10 other states,” is at KaiserHealthNews.ORG.


Full Article, Audio & Source:
Study: Texas Nursing Homes Among The Worst In The Nation
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