From NASGA: Time to reform probate court

Opinion: It’s time to reform probate court

Posted: 30 Apr 2018 12:18 AM PDT

By Ben Bartlett

Predatory for-profit conservators often take advantage of the elderly by charging huge fees and isolating them from the community.

In 2013, a former Berkeley resident, Greg Cooke, was diagnosed with Alzheimer’s disease. A physician deemed Mr. Cooke’s wife unable to care for him, and he was referred to a nursing home. A private conservator became aware of Mr. Cooke’s situation and began to petition for conservatorship. Mr. Cooke’s wife fought to retain her role as his caregiver, but ultimately, the Alameda County Probate Court assigned Mr. Cooke to the private conservator.  The conservator began billing Mr. Cooke $8,000 a month in the form of excessive fees and charges. The conservator refused to communicate with Mr. Cooke’s family regarding his condition. They refused his family visitation rights and recently sent a letter to Mr. Cooke’s wife stating that he was deceased. Yet, in spite of the letter, the conservator has continued to bill Mr. Cooke’s estate.

Our probate court system is failing seniors and people with disabilities such as Mr. Cooke. Predatory for-profit conservators are taking advantage of vulnerable community members through a system of conservatorship that is rife with elder abuse and civil-rights violations. This process is a part of a larger trend robbing families of color of their property and wealth. This year marks the 50th anniversary of the Fair Housing Act and it is time to address this problem.

A conservatorship in California is a probate court proceeding where a judge appoints a caretaker for an adult unable to care for him or herself.

Once a conservatorship is established, the caretaker (legally termed a ‘conservator’) has nearly total control over the person put under his or her care (a ‘conservatee’).

Conservators become responsible for every aspect of a conservatee’s life, including all property, possessions, finances, and even medical and personal decisions. For example, conservators choose the individual’s doctors, dictate whether or not relatives visit, and can even sell a conservatee’s house, and spend their money.

Conservatorship was designed to help families protect relatives unable to care for themselves. Mostly, it is used for seniors who cannot manage their own lives. Conservatorship is also used to assist adults who are disabled or the victims of catastrophic illness or accident.

Despite this noble intent, the system can fail the very people it was designed to protect. Professional conservators can petition for conservatorship of an individual, even without the knowledge and consent of the individual or their family. Judges often grant approvals for conservatorships with little scrutiny in hasty hearings.

Predatory conservators profit by billing the estates of the conservatees, charging exorbitant fees for miniscule, unnecessary, or fabricated tasks. These practices quickly deplete the wealth of the seniors and disabled persons who are supposed to be under their care. As a result, families are denied their inheritance and in the most tragic cases, seniors lose retirement savings and become homeless or financially dependent on relatives. In addition to financial predation, conservatees are often victims of abuse. There have been reports of these vulnerable individuals being confined and isolated, sexually violated, or physically abused.

Over the past decade, state legislators have passed various laws aimed at targeting this issue, most notably the Omnibus Conservatorship and Guardianship Reform Act of 2006. Since this reform, courts have been tasked with increased procedures for monitoring conservatorships. Regulations have also been imposed on professional conservators. Experts agree that California has decent probate laws on the books.

Yet, there continue to be reports of elder abuse and civil rights violations within the court system. Why? Because we have failed to allocate additional funding to enforce these critical laws that protect our most vulnerable citizens. Unless courts and court investigators receive sufficient funding, these laws will be nothing more than empty and meaningless statements of governmental principle.

There is a growing movement for probate court reform. The Berkeley City Council recently passed a council item requesting that District Attorney Nancy O’Malley and the Judicial Council investigate this matter. I call upon the Berkeley community to join and help advocate for our seniors. Please contact your state legislators, district attorney, and the Judicial Council to investigate abuses within our probate court system, enact positive changes and protect our families from this theft. Simply put, our elders deserve better.

Full Article & Source:
Opinion: It’s time to reform probate court

Bills on governor’s desk would boost elder abuse protections

Posted: 30 Apr 2018 12:32 AM PDT

Suffering in silence, some older adults may never tell law enforcement or authorities about government benefits and other income being stolen by family, friends or caregivers.

“That’s a really hard one to deal with because many times that older person doesn’t want everybody to know what their flesh and blood is doing to them,” said Pat Freeman, chief executive officer of the Oakwood-based Legacy Link.

A trio of bills sent to Gov. Nathan Deal’s desk this month would empower the elderly, their families and their advocates against abuse and exploitation. First lady Sandra Deal co-chairs the Older Adults Cabinet with Department of Human Services Commissioner Robyn Crittenden. The cabinet is an executive committee created in 2017 to address issues such as housing, health care and exploitation.

“I think for a lot of the bigger issues we’re seeing with older adults especially is financial exploitation. Family, friends and caregivers befriend the older adults and then help themselves to assets and so forth,” said Pat King, team leader of the forensic special investigations unit inside the state’s Division of Aging Services.

According to the Hall County Sheriff’s Office, reports to law enforcement on elder abuse or exploitation jumped from 18 cases in 2014 to 46 in 2015. In 2017, there were 56 reports.

Adult Protective Services’ policy writer/trainer Sharee Rines said the numbers statewide continue to rise.

“Over probably the last five years, our numbers have continued to go up,” she said.

Hall County Sheriff’s Office Investigator Brett Roach said financial exploitation is one of the main complaints investigated. Some cases involve abusing power of attorney, and the investigators work closely with Probate Court on such cases.

“Just because you are the power of attorney doesn’t make it where you can make a financial gain off of it,” Roach said.

House Bill 803 concerns trafficking elderly and disabled people, where a person “recruits, harbors, transports, provides or obtains” people “for the purpose of appropriating the resources … for one’s own or another person’s benefit.” These resources are often Social Security payments and other financial help for the elderly.

Anyone convicted of such trafficking would be guilty of a felony punishable by jail time between 12 months and 20 years, a maximum fine of $100,000 or both.

The trafficking statute is defined as “deception, coercion, exploitation or isolation.” Isolation is considered preventing a disabled or elderly person of having any contact with friends, family, law enforcement or others against their will.

“Even bank employees have gone to training about signs to look for, like if someone is illegally and without permission taking charge of a loved one’s assets,” Freeman said.

In 2010, the U.S. Government Accountability Office authored a report saying it had identified “hundreds of allegations of physical abuse, neglect and financial exploitation by guardians” in 45 states and Washington D.C.

“In 20 selected closed cases, GAO found that guardians stole or otherwise improperly obtained $5.4 million in assets from 158 incapacitated victims, many of whom were seniors,” according to the report.

If family members are concerned about a loved one’s care in an assisted living facility or nursing home, Freeman said all licensed facilities must have a poster with Legacy Link’s number to call about complaints.

The agency’s ombudsman are advocates for the residents who settle issues before law enforcement or state government agencies get involved.

Regarding the increase in reports, King pointed to the 2012 initiative known as the At-Risk Adult Crime Tactics training, which is a 16-hour course for primary and secondary responders.

“We want to make sure when someone calls 911 — whoever answers that phone until the case goes to court — we want to make sure anybody that touches that case knows what abuse looks like, what questions to ask, how to build a case, who the mandated reporters are … so forth and so on,” King said.

Roach said investigators will look at living conditions and what type of care the person is receiving.

When her team started tracking arrests and where they’ve done training last year, King said there was a positive correlation between the two, suggesting that the training is helping to identify exploitation that previously wasn’t reported.

Senate Bill 406, which was part of Deal’s final criminal justice reform package, concerns background checks and licensing for employees and facilities.

“One of the things that we’ve seen a number of times this past year is people are opening up homes (that) they say it’s assisted living or they call it a personal care home. They’re not licensed. They’re not following the rules that they should be for safety’s sake and feeding people as they should,” Freeman said.

Legacy Link’s ombudsman helped law enforcement and state government agencies in finding these places and helping shut them down.

“Many times, the owners just go to a different county or a different place in the state and start all over again,” Freeman said.

According to the bill, those submitting an application for a new license must send in a records check application for each owner, applicant and employee.

“On or before Jan. 1, 2021, each owner and employee of a currently licensed facility shall furnish to the department a records check application,” according to the bill. “In lieu of such records check application, a facility may submit evidence, satisfactory to the department, that within the immediately preceding 12 months each owner and employee received a satisfactory determination.”

Background checks will be processed through the Georgia Crime Information Center and the FBI.

House Bill 635 would increase information sharing among agencies investigating elder abuse and developing local task forces.

“Our Adult Protective Services unit cannot currently share its files with medical examiners and coroners, so that bill authorizes us to do that, should it be signed into law,” said Ashley Fielding Cooper, the chief operations officer for the Division of Family and Children Services.

If signed, the law would allow the prosecuting attorney, law enforcement, other state agencies involved in the investigation and coroners/medical examiners to have access to these abuse reports.

The district attorney of each judicial circuit would also be able to establish an “adult abuse, neglect and exploitation multidisciplinary team,” which would review responses to abuse reports and identify areas to improve. Cooper said the review team would be similar to the child fatality review completed by county committees annually.

“It does clarify some sharing of records information and clarify with Adult Protective Services, so it can be an asset in those communities that are able to form such a team,” said Julia Fisher Strauss, associate general counsel for the Division of Aging Services.

Full Article & Source:
Bills on governor’s desk would boost elder abuse protections 

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