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‘I would see him sitting in urine with no shoes on’
By TODAY|13 hours ago
A Sydney nursing home found to have failed 24 counts of care standards has been allowed to continue operating.
Carino Care in the Sydney suburb of Russell Lea failed to manage residents’ medication, and has had people in its care die in pain and distress, as well as from malnourishment.
However, the new government watchdog has ruled the facility can stay open until November.
The family of former resident Luigi Cantali is outraged by the decision, saying the facility’s neglect “definitely” played a part in the 80-year-old’s death.
Speaking to Today, Cantali’s daughter Eva Rinaldi said she witnessed the mistreatment of her father when visiting him at the facility.
“I would rock up late at night, about 10pm, and I would see him sitting in urine with no shoes on, on the floor,” Rinaldi told Today. “The door would be shut and he would be wrapped up in a sheet, just shivering. That was when he caught bronchitis”
Rinaldi was made aware of her father’s mistreatment at the facility after the 80-year-old raised the alarm. Despite having dementia and being blind, Rinaldi said her late father was very aware of what was happening.
She also noticed bruising “all over [Cantali’s] body” while he was living in the facility. The alarming photographs she captured of her father’s body are documented below.
“I was very, very surprised. I knew something was wrong. Even to the point they wouldn’t shower him and they would roll him into the bathroom and then just leave him in there for an hour and change his shirt,” Rinaldi added.
“He would tell me every single thing.” Rinaldi complained to Carino Care but was told by her father that nothing had changed.
Compelled to take drastic measures, Rinaldi put a video camera in her father’s room. He later told the nurses about the camera and they went looking for the device. When it was discovered, Rinaldi claims she was banned from visiting the facility.
“I saw a big decline in my father, especially in the time when they banned me. He just went from being normal to just so sick,” she added.
Door closed and my father wheezing with bad cough, feet in urine, face blue and shivering. I called ambulance. (Eva Rinaldi)Carino Care nursing home abuse and neglect in Russell Lea. (Eva Rinaldi)Results of insulin shots being given in the same spot at Carino Care nursing home Russell Lea. (Eva Rinaldi)Luigi Cantali at Carino Care nursing home in Russell Lea. (Eva Rinaldi)Carino Care stepped on my fathers toes to lift him up and left him in a chair never reclined for 2 weeks. (Eva Rinaldi)Flies on food and flies in water at Carino Care nursing home. (Eva Rinaldi)Carino Care nursing home abuse and neglect in Russell Lea. (Eva Rinaldi)
“They [Carino Care] said that he got the best care and that was simply not the case. We were paying all this money to this organisation and they are just not following through with they are supposed to be offering.”
After being banned, Rinaldi said she contacted the aged commission for assistance. “They just basically sent me a letter then closed off the complaint and said they wouldn’t investigate any further. That was in January,” she said.
Since then, the facility has been charged with 24 counts of neglect yet has been allowed to remain open. Carino Care has also expressed they plan to retrain staff from the facility.
“It’s disgusting. It’s a big slap in the face,” Rinaldi said about the ruling.
The Minister for Aged Care and Senior Australians, Richard Colbeck, declined requests to be interviewed by Today. His office did, however, issue the below statement.
Senator the Hon Richard Colbeck, Minister for Aged Care and Senior Australians
The terrible things that have come to light are heartbreaking and completely unacceptable.
Stories like Mr Luigi Cantali’s has been front and centre my mind in taking on the responsibility of Aged Care Minister. Mr Cantali deserved better care. I have been advised that the Department of Health issued a notice of non-compliance to Carino Care on 24 May 2019 in relation to 28 expected outcomes not met.
I am advised Carino Care is working closely with the Department of Health and Aged Care Quality and Safety Commission to remedy this non-compliance.
The service has engaged a Nurse Advisor and clinical consultant to support the service to meet the timeframe for improvement set by the Aged Care Quality and Safety Commission ahead of applying for reaccreditation.
The Government is committed to driving high quality care across the sector which is demonstrated by the introduction of new resident focused quality standards, a charter of rights which came into effect on 1 July 2019, and of course that is why we called the Royal Commission.
Our whole focus is to improve the delivery of Aged Care for Senior Australians.
From Joanne:
Ken Ditkowsky and I have fought tirelessy for the rights of the disabled and senior citizens. For speaking out the Illinois ARDC Atty Disciplianary Commission has suspended our licenses for 3 and 4 years respectively. Please write, fax or call Jerome Larkin that our work is blessed and that we will protect the seniors or disableds no matter what and our licenses must be restored.
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Nurse Caught On Video Laughing As Elderly Veteran Died Has Been Charged With Murder
By All That’s Interesting
Published February 22, 2018
See the video that will now likely put this nurse behind bars.
As 89-year-old World War II veteran James Dempsey lay dying in a Georgia nursing home, his nurses both ignored his cries and laughed as they failed to take critical measures that could have prevented his death.
We know this because the entire incident was caught on a hidden camera placed in the man’s room by his family. Now, that footage has led to indictments for the nurses involved.
According to local NBC affiliate 11Alive, certified nurse assistant Mable Turman faces a charge of neglect to an elder person while former licensed practical nurse (LPN) Wanda Nuckles faces a charge of depriving an elder person of essential services. Finally, former LPN Loyce Pickquet Agyeman faces charges of both neglect and felony murder.
These charges come nearly four years after the 2014 incident in which the nurses ignored Dempsey as he cried out for help, saying that he couldn’t breathe. Eventually, he became unresponsive, at which point the nurses failed to perform CPR immediately and didn’t call 911 until 57 minutes after he became unresponsive, according to 11Alive. In the meantime, Nuckles even started laughing while trying to start up an oxygen machine.
The nursing home wasn’t made aware of the video that captured these events until 2015, and the nurses weren’t fired until an additional ten months after that. Finally, the video only became public after 11Alive got approval from a judge to release it this past November as part of a lawsuit filed by Dempsey’s family.
The lawsuit and the 11Alive investigation then prompted local authorities to re-open the case, leading to the new indictments for the three nurses. Arrest warrants have since been issued for all three as well, although no trial date has yet been set.
At trial, the nurses will obviously have to account for their response. The first time around, during deposition testimony (see above) recorded before the nurses knew that the hidden camera footage existed, Nuckles can be seen lying about her response by indicating that she began performing CPR right away and kept it up continuously until paramedics arrived.
The truth, of course, is that Nuckles did not take action and that James Dempsey soon died as a result.
While Nuckles, during her deposition, was clearly lying about her actions that night, perhaps she was telling the truth when attorneys asked her why she was laughing — doubled over, in fact, onto Dempsey’s deathbed. She said she didn’t remember.
This man who is a legal specialist has been looking for his 2 children, Christopher and Lisa Mae Gammill Zaharias. Their names may have been changed. The ex wife’s name is Susan Gammill Zaharias.
I’m not sure that POA’s a trust and will could have protected the Daughter in gship.
A better route would have been to do a POA, trust and will and then put the trust and property into an offshore account which does not respond to US court orders.
I believe Barclay bank, which has branches in the US and other banks might have been better. But the reality is, every adult 18 and up should have POAs for property and health care and a will at the basic minimum. If finances are intertwined, get a lawyer to draft up a real contract. Do this well before any signs of dementia.
A trust is a great vehicle to protect assets in a bank account, valuable jewelry, paintings and paid up autos and homes. If the trust is offshore, many will not respond to US court orders. Protect your loved one’s property. Trusts do cost more money and have a lot more rules, but often they are well worth it.
Credit: Courtesy of Gary WeissFamily in happier times (Ada Vocino, Patricia Femia and Patricia’s kids)
The last time Patricia Femia saw her mother, Ada Vocino, was February 14, 2013 — Valentine’s Day. But this was anything but a heartfelt meeting. The two women were in the Morris County Courthouse in Morristown, N.J. and were there for war.
Ada Vocino
Credit: Courtesy of Gary Weiss
Patricia was Ada’s only child. Until a few months before that day in court, Ada’s life had revolved around Patricia and her family. They’d lived together in an apartment Patricia built into her home in 2007, as Ada — a wartime immigrant — wanted. Previously, Ada helped raise Patricia’s sons and daughter.
The two women confronted each other in the Superior Court of the State of New Jersey because Patricia had petitioned to become Ada’s guardian, believing her mother was incapable of managing her affairs. They would’ve become among the estimated 1.5 million active guardianship cases in America.
When Guardianship Goes Awry
Sadly, guardianship often goes awry. It did for Patricia and Ada.
Patricia says her mother’s last words to her, spoken in that courtroom: ‘My lawyers promised me that they would destroy your family.’
Patricia wanted to be appointed Ada’s guardian because she’d been growing increasingly anxious about signs of her mother’s decline, including apparent dementia and numerous auto accidents. In 2011, Ada failed a written test and lost her license. In February 2012, when Ada was taken to Chilton Medical Center due to dizziness and fainting, she threatened to kill herself and her family and was then committed to Ramapo Ridge Psychiatric Hospital for observation. She was returned to Chilton and later voluntarily readmitted to Ramapo Ridge. While there, a doctor diagnosed her as suffering from bipolar disorder and “senile dementia of the Alzheimer’s type.”
Patricia was especially worried about Ada’s depression and suicide threats. Once, Patricia found an ice pick in Ada’s room. Her mother also kept a rope under her bed and had threatened to hang herself. Her bouts of paranoia terrified Patricia. On top of that, Ada resisted medical care for serious cardiac and respiratory issues.
But Patricia recalls “frequent temper tantrums and constant mistrust” eroding their relationship. They were the reason Ada refused to relinquish control over her affairs to Patricia and deeply resented the guardianship proceeding.
Her Mother’s Last Words to Her
Patricia says her mother’s last words to her, spoken in that courtroom: “My lawyers promised me that they would destroy your family.”
In a decision handed down from the bench the next day, Patricia lost the case in every possible way. Judge Donald Coburn not only denied her guardianship petition, he slapped Patricia with a $675,000 judgment, payable to her mom, to unravel years of intermingled finances and jointly owned assets. An appeal of the judgment was dropped as part of a settlement. Patricia wound up owing about $310,000 in legal bills.
Ada died, alone and despondent several years later, on October 29, 2016, at 92, weighing only 70 pounds.
Since the trial they hadn’t been in touch; Patricia says her letters went unanswered, her phone messages weren’t delivered and her visitation attempts were rebuffed. She learned about her mom’s death in a call from the funeral home.
Cleaning out her mom’s room after her passing, Patricia didn’t find a single photo of Ada with her family, just pictures of her mother with the people who evidently had come to mean most to her at the end of her life: her lawyers and their families.
‘My Mother Was Stolen Away From My Family’
Patricia sums up what happened this way: “My mother was stolen away from my family.” Even Patricia’s husband, Bob, — though not a party to the case — lost his job after a mangled version of the legal warfare hit the web. “We hit rock bottom at that point,” he recalls.
The question isn’t whether the judge made a right or wrong decision, but what can the rest of us learn from this family’s nightmare, which could have happened anywhere.
What advance planning can prevent the kind of torment Patricia and Ada experienced? What do you do when a strong-willed parent insists on managing her own affairs even when signs of dementia begin to surface? How do you prevent disputes over money and health care from escalating into a family-severing nuclear war? If advance planning hasn’t been done and mistakes have been made, how do you prevent family relationships from disintegrating?
The agony inflicted on both sides of this family saga could have been thwarted by rudimentary advance planning, according to experts in elder law. Yet many people fail to prepare adequately for family care and estate issues and then are forced to endure the consequences.
A Landmark Guardianship Case for the Pain It Caused
Even five years after the legal battle ended, the Ada Vocino case is still considered something of a landmark among guardianship professionals —not for establishing any great legal precedents, but for the pain it caused.
Credit: Courtesy of Gary WeissPatricia Femia and her parents on her wedding day
“You sit there and shake your head how things can go that bad that fast,” says Frederick Paugh, a field investigator with the New Jersey Long Term Care Ombudsman who examined some of the financial aspects of the case at the request of Ada’s assisted living facility. “But you know what? It happens.”
What ended as a descent into legal hell began in Italy as a love story.
When Ada Miniussi was 20 in 1944, she was staying in Rome with an aunt. She met a staff sergeant with Army Air Force, an Italian-American from New Jersey named Lawrence Vocino. They were wed in Italy in September 1945 and settled in Clifton, N.J. He worked for the Veterans Administration for 42 years. She started out as a seamstress, and then became a stay-at-home mom after Patricia was born. When Lawrence died in 1988, Ada was 64 and on her own for the first time since Italy.
Patricia was then 28 and lived about a half hour away. She filled in for her dad by handling her mom’s finances, paying her bills and helping her find doctors. To keep her mom active, Patricia set Ada up in a little seamstress business doing alterations from home, helping her with marketing and pricing. Patricia worked full-time and was starting a family, so her mom helped with child care, something she loved.
Then, things started to get messy.
Home, Not Sweet, Home
Their relationship was so close that in 1994, Ada decided to move near Patricia in Kinnelon. Patricia found a lot near the Femia residence and made sure a house was built to Ada’s specifications. Patricia financed the purchase of the land and construction of the home (which cost $207,300) with a home equity loan on the Femia house. The house was initially bought in the name of Patricia and her husband; it was subsequently deeded to Ada.
Shortly before completion of the home, Ada put up for sale her condo in Clifton. At that time, as one of Patricia’s lawyers said in a brief filed years later, “a verbal agreement existed between Patricia and [Ada] that upon completion of the [Kinnelon] property and sale of [Ada’s] condominium, [Ada] would reimburse Patricia and Robert for the purchase and construction.” The condo sold for $199,000. Ada’s new home was then transferred to Ada, who wrote checks to Patricia totaling $190,000.
Ada lived in the home until 2007 and then sold it. Patricia says her mom promised to use the proceeds to reimburse the Femias for the cost of constructing her apartment in the “mother/daughter” home the Femias built.
As Patricia puts it, “We had verbal familial agreements and commitments, which had been in place for decades because there was complete trust between us.”
The 5 Financial Mistakes This Family Made
That’s commonplace among families, but also a recipe for disaster if the arrangements become subjected to court scrutiny.
Mistake No. 1 for the family: an oral real estate agreement.
“One of the first things a law student learns in Property 101 is that oral contracts are void,” says Sally Hurme, an elder law attorney who has served on the board of the National Guardianship Association.
Whatever you do that involves real estate, experts say, put it in writing. It doesn’t have to be anything formal or legalistic, just a letter from mom to adult child, or vice versa, signed and dated by both.
Mistake No. 2 for the family:Parents and adult children should have their own legal advisers for financial transactions, but that didn’t happen here.
There’s a basic reason for this — fairness. Also, if the transactions come under legal scrutiny, legal representation of all parties will help everything pass the smell test.
Joseph K. Jones, whose firm Jones, Wolf & Kapas provides estate planning in New York and New Jersey, points out that legal advice to both parties, each with a lawyer, reduces any potential future concerns that the elderly parent was pressured into doing anything — what’s known as “undue influence.”
Mistake No. 3 for the family: joint ownership of real estate between mother and daughter. When Ada’s house sold, the $470,000 proceeds were deposited into a bank account owned jointly by Ada and Patricia with right of survivorship. If one co-owner died, the other would get the money.
Lawyers take a dim view of joint accounts held by parents and their adult children. It’s a “really really dangerous maneuver,” says Jones.
For one reason, no matter how innocent the motive in establishing a joint account, it will be viewed with skepticism if the finances are called into question, as they were here. Ronald A. Fatoullah, a New York elder law attorney who is co-chairman of the Alzheimer’s Association Long Island Chapter, says such arrangements are common, but “in many of these cases there’s a little bit of undue influence.” (That wasn’t alleged in the Vocino case.)
Also, a joint account can be jeopardized by poor financial decisions of either party, and the money is vulnerable to potentially malicious actions of the other joint owner. If a parent or child grows alienated from the other, either can empty out the account.
Even if there is no undue influence, a judge may someday decide that in a case like the Femias, the account belongs to the parent. Jones, who was asked to review the judge’s ruling and other legal papers in the Femia case, says that in such situations, “what the law looks at, and what the judge did correctly, is he looked at who contributed the money.” Judge Coburn’s ruling was blunt. Addressing Patricia, he said: “The money is not yours. It’s hers.”
In Spring, 2012, Patricia was looking for an assisted living facility for Ada and decided on Paragon Village in Hackettstown, N.J. While filling out the paperwork, it became apparent that Patricia had two problems: she had no power of attorney to allow her to act on her mom’s behalf, nor a medical proxy that would have given her the authority to make medical decisions for Ada. By then, it seemed too late to ask Ada to sign such legal papers since she had been diagnosed as suffering from dementia.
Patricia felt she had one alternative route to take care of her mother: guardianship proceedings. A petition for guardianship was filed on April 13, 2012, the day Ada was released from Ramapo Ridge and admitted into Paragon.
The guardianship proceedings turned into an ugly battle. Ada retained a local lawyer, Robert A. Scirocco, who was later joined by a court-appointed lawyer, Richard P. Diegnan Jr. (Neither Scirocco, Diegnan, Patricia’s appellate law firm nor her lawyer at the trial, Adrienne J. Burke, responded to requests for interviews for this article.)
Patricia’s attorney had the burden of proof to show that Ada lacked “capacity” to handle her own affairs. If a person is found to lack capacity, he or she is declared “incompetent.” The potential for hurt feelings is obvious.
Patricia testified about her mother’s declining mental state. Two psychiatrists were called by Patricia’s lawyer and testified that Ada did not have capacity and needed a guardian. But the judge was openly skeptical of the testimony of one of the doctors and subjected him to harsh questioning. He did believe the testimony of witnesses called by Ada’s lawyers, who said Ada didn’t need a guardian.
The testimony of a psychiatrist at Ramapo, called by Patricia’s lawyer, was also damaging to Patricia’s case. Although he had diagnosed Ada as suffering from dementia, he testified that he didn’t believe she needed a guardian to handle her affairs.
But perhaps the most persuasive witness for the judge was Ada herself.
In a pretrial deposition before the trial, Ada had been composed, articulate and clearly antagonistic to her daughter. The judge called Ada “a lovely woman, proud, and clear minded about what she likes and what she doesn’t like.” The judge accepted Ada’s explanation for her suicide threats: she didn’t mean to kill herself or harm others. He concluded that while she was “a little histrionic at times as she fought for control of her own life,” she was not a danger to herself or others.
Ada’s lawyer filed a counterclaim, contending that Patricia had engaged in “conversion” — improper use of funds that belonged to Ada. The judge agreed.
Although the judge had some kind words about Patricia, he noted, “Ada wants her independence. And we have a Constitution in this state and this country and it says, you know, unless there’s a reason, you’re free even to be foolish. And there is no reason here.”
Mistake No. 5 for the family: Patricia’s bringing the guardianship case.
The videotaped deposition showed that Ada held considerable animus against Patricia, and that she’d do everything she could to undermine her daughter’s case. Seething with rage, her eyes narrowing with anger, she said: “My daughter wanted me to be declared insane and be my custodian so she can take care of me and do whatever she wants with me.” Ada went on to deny every aspect of her daughter’s case, from her own behavior to their intermingled finances.
Also, though there was a diagnosis of dementia, that didn’t make guardianship a slam dunk. “Just because somebody is in the early stages of that disease doesn’t mean that they don’t have capacity,” says Fatoullah.
Kezeli Wold, associate commissioner for Adult Protective Services at the Texas Department of Children and Family Services, says “one of the complexities of the whole concept of capacity or competency is that it’s on a scale. A person can experience early dementia and experience some memory loss and maybe some mild confusion during certain times of the day. But that doesn’t necessarily mean that they aren’t able to comprehend the situation they’re in, the decisions that they’re making and the choices that they’re making.”
The weakness of one of Patricia’s experts, the doctor cross-examined by the judge, didn’t help her, either.
Guardianship: A Last Resort
The bottom line that a guardianship proceeding is a nuclear weapon, only to be used as a last resort. And it can blow up in the face of the person seeking it.
“Guardianship is not something to be entered into lightly by any stretch of the imagination,” says Stephanie Hunsinger, AARP’s New Jersey state director.
The end of the guardianship case didn’t end the family’s legal skirmishing. Patricia filed an appeal but later dropped it, instead settling with Ada in August 2013. Under the terms of the settlement, Patricia funded an escrow account for $525,000, from which Ada was to withdraw $10,000 a month. At the time of her death, the remaining money was to go to Patricia’s three children.
But the cost of the case can be measured in more than just dollars. The family was, in essence, shattered.
In April 2013, after the trial, a small-town newspaper ran an article with the fallacious headline, “Kinnelon Couple Faked Alzheimer’s and Stole $980k From Elderly Mother .” In reality, there was no finding of theft and the judge didn’t say Patricia made a false claim of Alzheimer’s. The article also mistakenly said the trial “involved” Patricia’s husband Robert, and gratuitously mentioned his employer.
The article, distributed statewide on NJ.com, was later retracted and taken off the web, but by then, the damage had been done. Bob Femia was fired by his employer, Glatt Air Techniques, the local affiliate of a multinational company. His former employer’s attorney wrote that Bob was fired “based upon the potential damage to [the company’s] reputation” as a result of the publicity generated by the litigation. Says Femia: “You really have no idea how far south things can go with these types of situations.”
Although the false article came out of left field, the family animosity was predictable and is hard to prevent in such situations.
Family Relationships Destroyed
“Guardianship can go very well, in certain circumstances. But I have seen family relationships destroyed as a result of guardianship proceedings,” says E. Elizabeth Loewy, formerly chief of the Elder Abuse Unit of the Manhattan District Attorney’s Office and co-founder of the EverSafe financial monitoring service.
That’s precisely what happened with Patricia Femia and her mom.
Ada’s relationship with her daughter pretty much evaporated after the guardianship case commenced, and Ada’s lawyers then became a kind of substitute family, angering the Femias.
Ada’s last months were spent depressed, seriously ill from multiple ailments and alone. Her “support network,” Diegnan reported at the time, consisted of her lawyers and their staffs and families. Patricia says she tried to visit her mother at Paragon a few times after the trial, and was told “that she was getting a test done or participating in an activity or they rang her phone in her room and no one answered or they would say that she did not want to see any of us (grandkids included).”
An Attempt to Appoint a Temporary Guardian
In July 2016, three months before Ada died from congestive heart failure, Diegnan applied to the court for appointment of a temporary guardian. Two psychiatrists found her to have dementia, one describing it as advanced and accompanied by “progressive neuro cognitive decline.” Another lawyer appointed by the court interviewed Ada and found her to be alert and following the news. But she couldn’t remember the name of one of her grandchildren.
Ada was asked by her new lawyer if she wanted to take care of her own finances. Possibly, she said. But “she really didn’t want to have to do it, because she didn’t care. . . . she really didn’t care what happened to her.”
Moral of the Story
The moral of this story? “It’s hard to repair relationships when things have gone so far as to go to court,” says Camille Payne, director of field operations of the Texas Department of Family and Protective Services.
She suggests that adult children in such situations maintain communications as best as possible; explain that the legal proceedings were brought with the best of intentions and try to get friends or relatives to play peacemaker.
If the adult child feels that the guardianship proceeding was a mistake, an admission of error may help. But, Payne says, “if the elderly parent has mental illness, there may be nothing that you can do to repair whatever their mind thinks you have done to them.”
There were no winners in the “Matter of Ada Vocino, an Alleged Incapacitated Person,” as it is officially called in New Jersey court records. Ada may have come out on top, but what she lost — her family — could not be replaced by her lawyers or the money they were able to get for her.
At least 1.5 million adults in the United States are under the care of guardians and, critics say, are trapped in a flawed system which controls everything from a person’s finances to visits with family members.
In North Carolina, Ginny Johnson described how, just three months after her 95-year-old father was placed in guardianship, she was locked out of the Raleigh home she had lived in for 53 years and her father was taken away.
“My father was a 95-year-old healthy man when this happened,” Johnson said. “The day before dad was abducted he was on the golf course hitting golf balls with me. He had just lifted weights for 30 minutes and biked for 30 minutes.”
Johnson said her father’s dying wish was that she help prevent other abuses like the ones done to him.
“My father’s service in WWII was also heroic and yet he was kidnapped, robbed and murdered by our courts and legal system,” she charges.
As “wards of the state,” many of America’s most vulnerable are “stripped of their individual rights, find themselves separated from friends, family members and lifelong support networks as a result of enforced isolation imposed allegedly for their ‘protection,” according to Sam Sugar, author of the best-seller “Guardianships & The Elderly: The Perfect Crime.”
The American Bar Association, in a study published earlier this year, said that “guardianship is generally permanent, leaving no way out – ‘until death do us part.’ ”
In many states, all that is required to become a guardian, for those who have not been convicted of a felony or recently declared bankruptcy, is taking a course.
“My father was in great shape until he was warehoused by the court appointed guardian in a care center that starved him, restricted him from seeing me and didn’t shower him regularly,” Johnson said, according to a June article by Juliette Fairley for Medium.com.
Johnson said she had been named her father’s power of attorney and health care proxy but a sibling filed for guardianship in Wake County’s Special Proceedings Estate Division Probate Court and a professional guardian was appointed instead.
A year after being placed in guardianship, Johnson’s father passed away. She has since filed a wrongful death lawsuit with the North Carolina Industrial Commission, according to Fairley’s report.
“We are the state’s designated tribunal/court for tort claims against the State of North Carolina and, as such, we simply cannot comment on any potential, pending or adjudicated claim before us,” said J. Brian Ratledge, general counsel with the North Carolina Industrial Commission.
Sugar, who is founder and president of Americans Against Abusive Probate Guardianship (AAAPG), said that “The court and the court appointed guardian cannot strip the person of all their assets unless they first declare the individual incapacitated at which point the guardian owns them the way a master owns a slave.”
The exploitation of Americans placed in guardianship was highlighted in April during a meeting of the Senate Special Committee on Aging.
Committee chair Susan Collins, Maine Republican, recounted a New Yorker article published in 2017 which detailed how a woman obtained guardianship over an older couple, unbeknownst to their daughter, after she “allegedly showed up at the house … and informed them that she had an order from the local court to ‘remove’ them from their home, and that she would be taking them to an assisted living facility.”
The guardian, April Parks, “allegedly sold their belongings and transferred their savings into an account in her own name,” Collins said. Parks, who was the guardian of more than 400 people over 12 years, later was indicted on more than 200 felony charges.
Sen. Bob Casey, Pennsylvania Democrat, said during the April hearing that “We don’t even have basic data on guardianship itself. We don’t know how many people are subject to guardianship, who their guardians are, if a guardian has been thoroughly vetted and how many people are possibly being abused or neglected by their guardians. We should be able to agree that finding answers to these questions is the least we can do to protect our loved ones.”
In Texas, the state legislature last year passed a bill ordering the creation of a statewide system which will require all guardians to register, complete an online training course and undergo a criminal background check. The 50,748 active guardianship cases in the Lone Star State are valued at as much as $5 billion, according to David Slayton, executive director of the Texas Judicial Council.
Florida, which has the nation’s highest number of residents age 65 and over, recently cracked down on guardianship abuse with a new law establishing a statewide database of professional guardians.
Previously, professional guardians who were alleged to be abusing their power could move to a different county which did not require enhanced audits.
The Clerk & Comptroller of Palm Beach County reported in 2016 that there were at least 50,000 people under court-controlled guardianships in Florida and nearly $4 billion in guardianship assets at risk for exploitation.
“There are sometimes some bad apples,” said Sam Verghese of the Florida Department of Elder Affairs, according to a report by WPLG. “What we’ve sought to do with the legislature has been to fix some of those gaps that’ve been there, so that if there is someone who’s being taken advantage of from abuse, neglect, exploitation, financial fraud, there’s a way to actually go after the bad apples so more people aren’t hurt.”
Family members of those placed in guardianship are often required “to pay excessive, even outrageous hourly fees to untrained observers (for instance, law enforcement personnel, social workers and non-medical aides) to make occasional visits with their loved ones for very limited periods of time. In extreme cases, telephone contact with the ward is monitored or even prohibited,” Sugar said.
In her report for Medium.com, Fairley cited attorney Taso Pardalis, a partner with Pardalis & Nohavicka Lawyers in New York, who said “Approximately 5 to 10 percent of adult guardianships in this country are reported to have a fraudulent aspect – yet the percentage is most certainly much higher.”
Private guardians are legally allowed to charge a “ ‘reasonable’ fee but the State has not defined the term,” Pardalis said. “Some private guardians charge rates as high as $600 an hour for tasks as menial and mundane as writing emails. Fees are billed to the ward’s estate and without sufficient supervision by the State of the guardian’s operations, there is a high potential for financial abuse.”
Orders of restricted visitation can also be very expensive, Paradlis said.
Fairley’s report cited the example of Mary Bush of West Chester, Pennsylvania. Bush is required to pay $50 to visit her 87-year-old mother at a local nursing home and an APS worker and a sheriff must also be present.
“The court has unjustly labeled me a criminal and violated my due process rights,” Bush said. “My mom had a million dollar estate that has been liquidated by court appointed guardians.”
Philadelphia Attorney Alan Denenberg filed a federal lawsuit on behalf of Mary Bush in the U.S. District Court for the Eastern District of Pennsylvania against two police officers whom he alleges conspired to violate Ms. Bush’s 4th Amendment Rights under the U.S. Constitution by using excessive force in the parking lot of Park Lane nursing home where Ms. Bush’s mother resides under guardianship. Bush v. East Goshen Township et al, against Sergeant James Renegar and Ted Lewis of West Chester, outlines four counts including assault and battery under state law, Fairley reported.
“Sgt. Renegar lunged at the Plaintiff Mary Bush, grabbing her cell phone and throwing it to the ground,” stated Counselor Denenberg in an Aug. 29, 2018 amended complaint. “Sgt. Renegar then body slammed the Plaintiff onto the pavement causing her head to strike the hard surface. Although she was not resisting arrest, Sgt. Reneger got on top of the plaintiff, twisted her left arm way up her back and threatened to shoot or taser the Plaintiff.”
Bush was simply attempting to visit her aging mother Genevieve.
Paradlis said that “Even though a guardianship should be used to honor the best interest of the ward, it’s become clear that the system has become a business.”
Sugar noted that “These all too common practices to ‘protect the ward’s best interests’ discourage family connections, taint every visit, add further stress to already tense situations and result in predictably adverse consequences for all involved. To combat these cruel assaults, legislative campaigns have been launched by several national advocacy organizations aimed at rewriting state laws to prevent the separation of wards and families.”
Sugar added that “Forced isolation, in addition to being an excessively cruel and harsh punishment for an innocent frail person, is a serious health risk, resulting in decreased longevity, increased need for medications, greater demands on staff and escalating costs. Worse yet, it can lead to vociferous confrontations, major medical crises or worse-case scenarios.”
Linda Arters experienced restricted visits with her legally blind and cognitively impaired mother Rosalyn B. Arters, who was allegedly surreptitiously relocated from Florida and eventually guardianized in Boulder County, Colorado.
“I attribute her death to the fact that she was continually denied proper medical care by the guardian,” Arters said.
Rosalyn Arters was among the 1.3 million adults that the National Center for State Courts has ventured to guess are under the thumb of a family or professional guardian who control some $50 billion of the adult’s assets.
The wrenching experience of being separated from her mother by the court appointed guardian lead Arters to become an advocate for other victims. “I wasn’t allowed to care for my own mother even though she wanted me to,” Arters said.
Once under a court appointed guardianship, older adults like Arters’ mother can be denied the right to decide where to live, to vote, to choose medical care and marital status, to handle finances, to hire a lawyer, and even to have family and friends visit them.
In response to the current state of elder guardianship affairs, Arters organized a complimentary 8 hour conference called Knowledge is Poweron June 10 during World Elder Abuse Awareness week, hosted at the Bank Policy Institute in D.C. where the friends and family members of victims of elder abuse, probate guardianship abuse and financial exploitation shared relevant information, data, facts, guidance, resources and support.
“What started three or four decades ago as a small local cottage industry mining the wealth of a few elderly seniors has become exquisitely institutionalized, organized and sophisticated,” said Dr. Sam Sugar, author and founder of Americans Against Abusive Probate Guardianship, a non profit organization in Florida. “Probate court insiders have perfected what some have called the perfect crime of the 21st century. The process is so stealthy and quick that one can become a ward of any state in a matter of days with no warning and no way out.”
Attorney Bradley Geller says he became increasingly aware that the purpose of the system in Michigan had been corrupted after 30 years of involvement with guardianship issues. “Judges were ignoring the law with impunity and judges were blocking all legislative and administrative efforts at reform,” he said.
As a result, in October 2017, Counselor Geller filed a federal lawsuit naming the Michigan Supreme Court, the Michigan Attorney General, each of the state’s probate courts and all 300 professional guardians as defendants. The suit includes claims of Medicaid fraud, violation of due process and violation of the Americans with Disabilities Act.
Although the case has yet to be resolved and one issue is set for a hearing on July 31, Geller told Newsmax that his lawsuit helped prompt the creation of an Elder Abuse Task Force by the Michigan Supreme Court Justices and the Michigan Attorney General Dana Nessel.
The task force is reportedly looking at recommending several changes to the guardianship system as described on the website and as detailed in Attorney Bradley Geller’s 2017 federal lawsuit against the state of Michigan.
“Justices Cavanagh and Bernstein are serving on the task force and are traveling across Michigan to attend listening sessions, hearing from the public regarding their specific concerns,” said Michigan Supreme Court Communications Officer John Nevin.
Geller said that he filed the federal complaint after becoming increasingly aware that the purpose of the system had been corrupted during his 30 years of involvement with guardianship issues.
At least one issue is set for a July 31 hearing. Allegations in his complaint include the following:
Since 1837, Michigan law has mandated that court appointed guardians annually account to the court. However, most probate judges reportedly don’t require it.
“This is how guardianship in Michigan got to be known as a ‘license to steal,’” Geller said. “If you never have to report to the court income or expenses, the guardian is free to do as he or she pleases.”
Guardians often sell the ward’s home immediately after being appointed by the court. “That’s where the big money is, to a guardian, is in selling the house for far less than fair market value even though the law states that the home must be sold for fair market value and the sale is in the best interest of the Ward,” Geller said.
Judges refuse to ever issue a limited guardianship. “Our statute has a bias toward limited guardianship rather than full guardianship but judges think it’s too much trouble for them either now or in the future, even though a limited guardianship may be best suited to the Ward’s needs,” said Geller.
Professional guardians, sometimes responsible for 300 or more individuals, are completely unregulated and favor institutionalization even when it is not necessary.
Geller alleges that the industry now clearly operates for the financial benefit of the few rather than the independence and welfare of the many. “It is judges who enable the system,” he said.
Geller’s game plan to stop elder abuse under guardianship nationwide includes the following:
State Supreme Courts must issue administrative orders
The Michigan Supreme Court maintains superintending control over the lower courts and could, in one sentence, issue an administrative order requiring probate judges to comply with the law. “It has never happened,” said Geller. “It may happen but it hasn’t happened yet.”
That’s because the Michigan Supreme Court has always been afraid of the trial judges, according to Geller.
“I’m not sure why that is but the Supreme Court has stuck its head in the sand or it’s the three monkeys of hear no evil; see no evil; do no evil,” he said.
Society must value its aging and vulnerable.
Geller believes American society doesn’t really respect children or older adults. “We value people to the extent that we perceive them as contributing to society, which we measure by employment,” he said.
Lawyers in other states must file lawsuits
“Nothing else has worked,” said Geller who drafted the Guardianship Reform Act as counsel to the House Judiciary Committee and has worked as counsel to a probate court.
“We’ve tried legislative change. It didn’t work. We tried to lobby the Supreme Court with arguments and information. It hasn’t worked. Litigation is the last, best hope.”
Qui Tam lawsuits, like the one that Geller filed, are brought under the False Claims Act, a law that rewards whistle blowers in successful cases where the government recovers funds lost to fraud. Geller’s lawsuit against the state of Michigan includes claims of Medicaid fraud, violation of due process and violation of the Americans with Disabilities Act.
Michigan’s recently named Elder Abuse Task Force may usher in an era of change.
“We have three relatively new justices and a new chief justice was named in January,” Geller said. “They’re going to crack this open.”
The Elder Abuse Task Force has been filled with representatives from about 70 organizations but there is only one probate judge. “The reason is because the probate judges have blocked any type of reform,” said Geller. “It’s in their self interest to keep the system just as it is because they have been able to do whatever they damned pleased until now.”
RENTWOOD, Tenn. (WTVF) — You typically don’t see an attorney and her client getting arrested, but that’s just what happened in Brentwood on Wednesday morning.
A few of attorney Connie Reguli’s supporters stood outside the Brentwood Police Department as she and her client, Wendy Hancock, turned themselves in. They held signs demanding the Department of Children’s Services be abolished.
Reguli was charged with Facilitation of Custodial Interference and Accessory after the Fact.
She and Hancock were indicted for an incident that stemmed last August. Back then, the Tennessee Bureau of Investigation issued an endangered child alert for a 12-year-old girl taken by Hancock, who her non-custodial parent.
The two were eventually found at Reguli’s home in Brentwood the next day.
Authorities say Hancock was wanted on domestic assault and contributing to the delinquency of a child charges before taking her daughter last year.
“I’ve represented them before and I’ve brought them into Brentwood and I said, ‘Just wait here let me start making some phone calls,'” Reguli told NewsChannel 5 after being released from jail.
Reguli denies breaking state laws. She claims they were in her house while trying to get her client a court hearing for an order that unfairly took the kids away.
“She didn’t run and call DCS and turn her kids over right away and we wanted to get a court date so we can have a hearing on it,” she said.
The indictments come after a judge questioned Reguli’s motive in Hancock’s case in April. In the excerpt it said, “Ms. Hancock, I think you should consider very carefully whether your counsel is looking to your interest and the interests of your children about reunification or simply launching another attack upon the judiciary and they system.”
Reguli also has a history with the Board of Professional Responsibility over complaints of misconduct.
In one ongoing case, she’s accused of secretly recording a meeting with DCS.
Reguli insists that she’s just fighting to keep families together. Hancock eventually got custody of her girl this year because the case was dropped, according to Reguli.
She strongly believes that she is being targeted for fighting for her clients against DCS.
“They basically were making it personal against me. I’ve defended parents all over the state,” Reguli added.
Department of Children’s Services Commissioner Jennifer Nichols released the following statement to NewsChannel 5:
“The number one priority of the Department of Children’s Services is the safety of the children in our custody. DCS is not a law enforcement agency or a prosecutorial agency and does not present criminal cases to the Grand Jury. However, we are always grateful for the work of the Brentwood Police Department and the Williamson County District Attorney’s Office to investigate allegations of crimes involving the safety of children and look forward to justice being served.”
Copyright 2019 Scripps Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
One of the problems I note from the correspondence that goes back and forth between the various allied groups that are attempting to fight the human trafficking in the elderly (the felonies of ELDER CLEANSING) is the failure to understand some basic guidelines.
The following may be helpful, to wit:
Guidelines for Individual Executors & Trustees
Introduction
After an individual’s death, his or her assets will be gathered, business affairs settled, debts paid, necessary tax returns filed, and assets distributed as the deceased individual (generally referred to as the “decedent”) directed. These activities generally will be conducted on behalf of the decedent by a person acting in a fiduciary capacity, either as executor (in some states called a personal representative) or as trustee, depending upon how the decedent held his or her property.
As a first step, it is helpful to know the meaning of a few common terms:
· Fiduciary – An individual or bank or trust company that acts for the benefit of another. Trustees, executors, and personal representatives are all fiduciaries.
· Grantor – (Also called “settlor” or “trustor”) An individual who transfers property to a trustee to hold or own subject to the terms of the trust agreement setting forth your wishes. For income tax purposes the same term is used to mean the person who is taxed on the income from the trust. Confusing, but different concepts.
· Testator – A person who has made a valid will (a woman is sometimes called a “testatrix”).
· Beneficiary – A person for whose benefit a will or trust was made; the person who is to receive property, either outright or in trust, now or later.
· Trustee – An individual or bank or trust company that holds legal title to property for the benefit of another and acts according to the terms of the trust. This can be confusing in that you can sometimes be both a trustee and a beneficiary of the same lifetime (inter-vivos) trust you established or a trust established by someone else for you at their death (testamentary trust).
· Executor – (Also called “personal representative;” a woman is sometimes called an “executrix”). An individual or bank or trust company that settles the estate of a testator according to the terms of the will, or if there is no will in accordance with the laws of the decedent’s estate (intestacy), although a person acting in intestacy may be called by a different name, such as administrator.
· Principal and Income – Respectively, the property or capital of an estate or trust and the returns from the property, such as interest, dividends, rents, etc. In some cases, gain resulting from appreciation in value may also be income.
As a general rule, the administration of an estate or trust after an individual has died requires the fiduciary to address certain routine issues and follow several standard steps to distribute the decedent’s assets in accordance with his or her wishes. These guidelines focus on activities that occur in an estate or trust immediately after the individual has died.
Understanding the Will
It is very important to read and understand the will or trust so that you will know who the beneficiaries are, what they are to receive and when, and who, if any, your co-fiduciaries are.
Does the will give everything outright, or does it create new trusts that may continue for several years? Does a trust mandate certain distributions (“All income earned each year is to be paid to my wife, Nancy”) or does it leave this to the trustee’s discretion (“My trustee shall distribute such income as she believes is necessary for the education and support of my son, Alan, until he reaches age 25”)? The document often imparts important directions to the fiduciary, such as which assets should be used to pay taxes and expenses. The document will usually list the fiduciary’s powers in some detail.
Most fiduciaries retain an attorney who specializes in the area of trusts and estates to assist them in performing their duties properly. An attorney’s advice is very helpful in ensuring that you understand what the will or trust and applicable state law provide. For example, at an initial meeting it is common for the attorney to review step by step many of the key provisions of the will or trust (or both) so that you will understand your role. Be mindful that if you accept the appointment to serve as an executor or trustee, you will be held responsible for understanding and implementing the terms of the trust or will.
Managing Estate Assets
It is the fiduciary’s responsibility to take control of (marshal) all assets comprising an estate or trust. Especially when a fiduciary assumes office at the grantor’s or testator’s death, it is crucial to secure and value all assets as soon as possible. Some assets, such as brokerage accounts, may be accessed immediately once certain prerequisites are met. Typical prerequisites are an executor obtaining formal authorization, sometimes referred to as Letters Testamentary, from the court and producing a death certificate. Other assets, such as insurance, may have to be applied for by filing a claim. The usual practice is to engage a professional appraiser to value the decedent’s tangible property, such as household furniture, automobiles, jewelry, artwork, and collectibles. Depending on the nature and value of the property, this may be a routine activity, but you may need the services of a specialist appraiser if, for example, the decedent had rare or unusual items or was a serious collector. Real estate, whether residential or commercial, and any business interests also must be valued. Besides providing a valuation for assets that may be reported on a court-required inventory or on the state or federal estate tax return, the appraisal can help the fiduciary gauge whether the decedent’s insurance coverage on the assets is sufficient. Appropriate insurance should be maintained throughout the fiduciary’s tenure. The fiduciary also must value financial assets, including bank and securities accounts. Bear in mind that for federal estate tax returns for estates that do not owe any federal estate tax, certain estimates are permitted. This might lessen the appraisal costs that must be incurred.
Handling Debts and Expenses
It is the fiduciary’s duty to determine when bills unpaid at death, and expenses incurred in the administration of the estate, should be paid, and then pay them or notify creditors of temporary delay. In some cases the estate may be harmed if certain bills, such as property or casualty insurance bills or real estate taxes, are not paid promptly. Most states require a written notice to any known or reasonably ascertainable creditors. While most bills will present no problem, it is wise to consult an attorney in unusual circumstances, as the fiduciary can be held personally liable for improperly spending estate or trust assets or for failing to protect the estate assets properly, such as by maintaining adequate insurance coverage.
The fiduciary may be responsible for filing a number of tax returns. These tax returns include the final income tax return for the year of the decedent’s death, a gift or generation-skipping tax return for the current year, if needed, and prior years’ returns that may be on extension. It is not uncommon for a decedent who was ill for the last year or years of his or her life to have missed filing returns. The only way to be certain is to investigate. In addition, if the value of the estate (whether under a will or trust) before deductions exceeds the amount sheltered by the estate tax exemption amount, which is $5 million inflation adjusted ($5.25 million in 2013), a federal estate tax return will need to be filed. Even if the value of the estate does not exceed the estate tax exemption amount, a federal estate tax return still may need to be filed. Under the concept of portability, if the decedent is survived by a spouse and he or she intends to use any estate tax exemption the deceased spouse did not use, an estate tax return must be filed.
Since the estate or trust is a taxpayer in its own right, a new tax identification number must be obtained and a fiduciary income tax return (form 1041, not 1040) must be filed for the estate or trust. A tax identification number can be obtained online from the IRS website. You cannot use the decedent’s social security number for the estate or any trusts that exist following the decedent’s death.
It is important to note for income tax planning that the estate or trust and its beneficiaries may not be in the same income tax brackets. Thus, timing of certain distributions can save money for all concerned. Caution also should be exercised because trusts and estates are subject to different rules that can be quite complex and can reach the highest tax rates at very low levels of income. Some tax return preparers and accountants specialize in preparing such fiduciary income tax returns and can be very helpful. They are familiar with the filing deadlines, will be able to determine whether the estate or trust must pay estimated taxes quarterly, and may be able to help you plan distributions or other steps to reduce tax costs.
Most expenses that a fiduciary incurs in the administration of the estate or trust are properly payable from the decedent’s assets. These include funeral expenses, appraisal fees, attorney’s and accountant’s fees, and insurance premiums. Careful records should be kept, and receipts should always be obtained. If any expenses are payable to you or someone related to you, consult with an attorney about any special precautions that should be taken.
Funding the Bequests
Wills and trusts often provide for specific gifts of cash (“I give my niece $50,000 if she survives me”) or property (“I give my grandfather clock to my granddaughter, Nina”) before the balance of the property, or residue, is distributed. The residue may be distributed outright or in further trust, such as a trust for a surviving spouse or a trust for minor children. Be sure that all debts, taxes, and expenses are paid or provided for before distributing any property to beneficiaries because you may be held personally liable if insufficient assets do not remain to meet estate expenses. Although it is usual to obtain a receipt and refunding agreement from the beneficiary that states that he or she agrees to refund any excess distribution made in error by the fiduciary, as a practical matter it is often difficult to retrieve such funds. In some states, you will need court approval before any distributions may be made. Where distributions are made to ongoing trusts or according to a formula described in the will or trust, it is best to consult an attorney to be sure the funding is completed properly. Tax consequences of a distribution sometimes can be surprising, so careful planning is important.
Trust Administration
Trusts are designed to distinguish between income and principal. Many trusts, especially older ones, provide for income to be distributed to one person at one time and principal to be distributed to that same person a different time or to another person. For example, many trusts for a surviving spouse provide that all income must be paid to the spouse, but provide for payments of principal (corpus) to the spouse only in limited circumstances, such as a medical emergency. At the surviving spouse’s death, the remaining principal may be paid to the decedent’s children, to charity, or to other beneficiaries. Income payments and principal distributions can be made in cash, or at the trustee’s discretion, by distributing securities as well as cash. Never make assumptions, as the terms of every will and trust differ greatly. There is no such thing as a “standard” distribution provision.
Unless a fiduciary has financial experience, he or she should seek professional advice regarding the investment of trust assets. In addition to investing for good investment results, the fiduciary should invest within the applicable state’s prudent investor rule that governs the trust or estate and with careful consideration of the terms of the will or trust, which may modify the otherwise applicable state law rules. A skilled investment advisor can help the fiduciary decide how to invest, what assets to sell to produce cash for expenses, taxes or outright gifts of cash, and how to minimize income and capital gains taxes. Simply maintaining the investments that the decedent owned will not be a defense if an heir claims you did not invest wisely or violated the law governing trust investments. In all events, it is important to have a written investment policy statement stating what investment goals are being pursued.
During the period of administration, the fiduciary must provide an annual income tax statement (called a Schedule K-1) to each beneficiary who is taxable on any income earned by the trust. The fiduciary also must file an income tax return for the trust annually. The fiduciary can be held personally liable for interest and penalties if the income tax return is not filed and the tax paid by the due date, generally April 15th.
Closing the Estate
Estates may be closed when the executor has paid all debts, expenses, and taxes, has received tax clearances from the IRS and the state, and has distributed all assets on hand. Trusts terminate when an event described in the document, such as the death of a beneficiary, or a date described in the document, such as the date the beneficiary attains a stated age, occurs. The fiduciary is given a reasonable period of time thereafter to make the actual distributions. Some states require a petition to be filed in court before the assets are distributed and the estate or trust closed. When such a formal proceeding is not required, it is nevertheless good practice to require all beneficiaries to sign a document, prepared by an attorney, in which they approve of your actions as fiduciary and acknowledge receipt of assets due them. This document protects the fiduciary from later claims by a beneficiary. These formalities are recommended even when the other heirs are relatives, as that alone is never an assurance that one of them will not have an issue and pursue a legal claim against you. Finally, a final income tax return must be filed and a reserve kept back for any due, but unpaid, taxes or estate expenses.
Common Questions
How do I title (own) bank and other accounts?
Each bank, trust company or investment firm may have its own format, but generally you may use, for a trust, “Alice Carroll, Trustee, Lewis Carroll Trust dated January 19, 1998,” or, in a shorthand version, “Alice Carroll, Trustee under agreement dated January 19, 1998.” For an estate, you should use “Alice Carroll, Executor, Estate of Lewis Carroll, Deceased.”
How do I sign my name in a fiduciary capacity?
An executor signs: “Alice Carroll, Executor (or Personal Representative) of the Estate of Lewis Carroll, Deceased”. A trustee signs: “Alice Carroll, Trustee”
Where do I hold the estate or trust assets?
You should open an investment account with a bank, trust company, or brokerage company in the name of the estate or trust. All expenses and disbursements must be made from these accounts, and you should receive regular statements.
How (and how much) do I get paid?
Because being a fiduciary is time-consuming and is often difficult, it is appropriate to be paid for your services. The will or trust may set forth the compensation to which you are entitled. If the document does not, many states either provide a fixed schedule of fees or allow “reasonable” compensation, which usually takes into account the size of the estate, the complexity involved, and the time spent by the fiduciary. Executor’s or trustee’s fees are taxable compensation to you. Several states do not permit you to pay your own compensation without a court order, so ask your attorney before you write yourself a check. Many fiduciaries in the same family as the decedent are quick to waive fees. Before doing this, however, consult with the attorney for the estate and be certain you understand the full scope of your duties and any ramifications of waiver.
What if a beneficiary complains?
Even professional fiduciaries, such as trust companies, receive complaints from a beneficiary from time to time. The best way to deal with them is to do your best to avoid them in the first place by following the guidelines set forth in these FAQs and consulting with an attorney experienced in estate administration. Many complaints arise because beneficiaries are not kept up to date about the administration of the trust or estate. Frequent communication with beneficiaries is a must. The best approach in all instances is to be proactive by communicating throughout the estate or trust administration process and handling all matters with appropriate formality. If a complaint involves more than routine issues, consult with an attorney who specializes in trust and estate matters.
Can I be sued or be held personally liable?
Your errors or mismanagement of a trust or estate can subject you to personal liability. Common pitfalls include not paying taxes or filing returns on time, improper investment choices (whether too conservative, too speculative, or favoring one beneficiary over another), self-dealing (buying assets for yourself or a family member from the estate or trust, whether at market price), or allowing property or casualty insurance to lapse, resulting in a loss to the estate or trust. Your best protection is to get good professional advice as early as possible in the process, communicate regularly with the beneficiaries, treat everything with appropriate formalities as if you were not a related party (even if you are), and fully document your actions and decisions.
How am I discharged as fiduciary at the end of the administration? What if I want to resign?
Whether you stop acting as a fiduciary because the estate or trust has terminated or you wish to resign before the conclusion of your administration, you must be discharged, either by the local court or by the beneficiaries. In some states, discharge is a formal process that involves the preparation of an accounting. In other states, you can be discharged with the use of a relatively simple document signed by the beneficiaries. If you are resigning prior to the conclusion of your administration, check the will or trust document to see who succeeds you as fiduciary. If no successor is named, you may need a court proceeding to appoint a successor before you can be discharged.
Understanding the basics cited supra is the first step for the “great unwashed” (you and I) speaking the same language. I took the ABA version rather than a parochial State version to reproduce because it is written so a lawyer parroting the words and phrases would sound intelligent. In the real world there is a State Statute that defines all the issues. In Illinois it is 755 ILCS 5/11a – 1 et seq In clear words 5/11a – 3 and 10 define the rights of the elderly trafficking victim.
Why does a ‘petitioner’ covet the possession of guardian? Believe it or not there are legitimate reasons for a guardianship exist. There are people who are disabled and require society to provide them with help – HOWEVER, the human trafficking guardian has become a cancer and the political corruption it feeds is threatening the core of our society. The NEW YORKER magazine article of October 2017 vividly noted the criminal conspiracy that is ravaging throughout America and destroying lives. The POLITICAL CORRUPTION that has been a plague on Government since its invention have emerged as a fast growing HOUSEHOLD industry and literally threatens everyone. This threat is non-discriminatory and there are examples of the very exploiters becoming victims.
The lure offered to the miscreants is not only the opportunity to steal millions from the Guardianship Estate of a helpless elderly person or defraud the United States of America of billions in Health care funds! It is excitement of getting away with overt criminal activity and being praised by “those who count” for being great humanists.
The Sykes, Gore, ***** cases wherein the thefts were obscene – and the miscreates to date may have gotten away with their perfidy still have to look over their shoulders for fear that a day of reckoning is on the horizon. For instance, in the Sykes case, Gloria Sykes is still a journalist with some successful projects under her belt. She has not given up! Neither has Attorney Denison and her blog MaryGSykes *****. Indeed, neither have I! (I believe the booty has never been declared as Income – $3 million dollars ! The Department of the Treasury and the Illinois Department of Revenue might seek the taxes, interest and penalties! Pursuant to 18 USCA 371 all the bad guys have joint and several liability.
There is one point that everyone wants to ignore, but it should haunt every corrupt jurist and every apologist for the systemic corruption that gives rise to ELDER CLEANSINGS/HUMAN TRAFFICKING IN THE ELDERLY, to wit:
The person appointed as a guardian is a fiduciary. The fiduciary owes his/her ward the highest level of fidelity and honesty that can be imposed on any individual. What this means is the person assuming that position subjugates his personal interests for that of the reasonable interests of the Ward. This also means that the fiduciary – i.e. the guardian cannot make indirect compensation as to the ward’s estate, and all expenditures must be reasonably necessary and calculated to benefit the estate. REASONABLE, NECESSARY, and BENEFIT to the Estate are the guides to any charges against the Estate of the Ward and in particular compensation.
This is also not a NET SUM situation. My favorite example is: you send me out to purchase for you a pack of cigarettes. To pay for the cigarettes you give me ten dollars. On the way to make the purchase, I meet my bookie, and he talks me into betting the ten dollars on a horse. The horse wins and I collect a hundred dollars.
As I an essentially honest, I go to the store, purchase your cigarettes, and deliver to you the cigarettes and the change from the ten dollars. You then demand the $100.00 I won. As a fiduciary I owe you that $100.00 and you are entitled to collect it. For me to keep the money would be a breach of my fiduciary relationship. I as a fiduciary have an independent duty of honesty and integrity to you!
The Judges administrating the guardianship estates all are aware of this independent fiduciary duty. They all know about the criteria of REASONABLE, NECESSARY, AND BENEFIT TO THE ESTATE!
Why are the guiding principles of the fiduciary relationship ignored by the corrupt judges, the corrupt guardians, the corrupt lawyers, the corrupt Judicial and political elite?
The answer: we, the great unwashed are induced into partisan party politics and distracted away from performing our duties as cities of a Democracy. Democracy is not a spectator sport!
Elder Dignity & Power Living Media Release Video Explaining the Rising Crime of Adult Guardianship Exploitation
Features Top Elder Justice Advocates and Families Affected
How much do you value freedom? Do you believe you have a choice in how you live your life? Don’t be deceived… you could be the target of a rising crime that can render you a “non-person” within days, wipe out all of your assets and even sequester you away from loved ones.
The Deception of Protectionprovides a primer on adult guardianship exploitation in the U.S., including preemptive measures so you can protect yourself and survival tactics if you get entrapped. It is a must-watch if you want to actually protect yourself and loved ones. The video is meant to spark a citizen movement so share it and embed it in other sites (get the code here).
Featured Participants
The top elder justice advocates in the country break down the anatomy of an involuntary guardianship, including footage from the Americans Against Abusive Probate Guardianship (AAAPG) Protest at the National Probate Judge Conference in November 2017 in Ponte Vedra, Florida.
Teresa Kennedy
Co-Founder, Elder Dignity
Writer/producer/host of The Deception of Protection, Kennedy is committed to transforming the punitive adult guardianship system into a model that helps seniors thrive.
Rick Black
Director, CEAR
Through the Center for Estate Administration Reform (CEAR), Black is fighting tirelessly to elevate the issue of estate trafficking and spur new legislation at the federal level.
Sam J. Sugar, M.D.
Founder, AAAPG
Sugar founded Americans Against Abusive Probate Guardianship (AAAPG) in 2013 and has been on the national forefront focusing attention on guardianship abuse.
Family Members, Victims & Advocates
Families from across the U.S. are being affected by the rising crime of estate trafficking through involuntary guardianships. Roger Hillygus from Nevada, Lynn and Alan Sayler, and Lawrence T. Reid, Jr. from Florida, Vidalia P. Amaral and Ron Coelmarfrom Massachusetts, and Marla Zahn from Wisconsin all lend their voices to The Deception of Protection, highlighting that this crime IS real. Caroline Peppiat saw The New Yorker article and came to the protest because she recognized that she was a potential victim. Thank you to ALL participants in the AAAPG Protest and meeting. Family members, victims and advocates are joining forces in a show of solidarity to urge for greater reform and justice for the current victims. It’s time to speak Truth to power and overhaul the archaic guardianship system so that it truly supports seniors and dependent adults.
The video is dedicated to Dr. Lillie Sykes White who remains on lockdown in Florida away from her sister and 50+ nieces and nephews for 1,032 days as of July 2, 2019. The Seventh Judicial Circuit Court continues to ignore motions for communication and visitation. Learn more about her story.
take a look at what a 2013 Conn. case says about removing children from parents. They claim only a 10% predicative risk to a child should establish child removal. This comes at at time when studies show risk of physical, emotional and even sexual abuse is many times higher when kids are removed and placed in a foster environment or even a group home for older kids.
Supreme Court Establishes New Standard in Predictive Neglect Cases
This case was not handled by our firm. However, if you have any questions regarding this case or Divorce and Family Law, please contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. today. Call us at (203) 221-3100 or by email at JMaya@Mayalaw.com, to schedule a free initial consultation.
In a recent decision involving the Department of Children and Families, the Connecticut Supreme Court established a new standard governing the doctrine of predictive neglect, overturning precedent which the Appellate Court previously established in In re Kamari C-L. In the matter of In re Joseph W., the Department of Children and Families pursued neglect petitions against the parents of two minor children. After trial, the court found that both children were in fact “neglected” under the doctrine of predictive neglect. From a factual standpoint, the trial court based its decision primarily on the mother’s long term mental health issues and failure to comply with treatment plans, as well as the father’s noncompliance with DCF requirements and inability to recognize the mother’s problems. The trial court essentially concluded that under the doctrine of predictive neglect both children were “at risk” for harm. On appeal, the father claimed that DCF should have been required to satisfy a more burdensome standard.
In reviewing the doctrine of predictive neglect, the Supreme Court explained that DCF need not wait until a child is actually harmed before intervening to protect that child. As the Supreme Court stated, “Our statutes clearly and explicitly recognize the state’s authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected.” The Court explained, “The doctrine of predictive neglect is grounded in the state’s responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred… Thus, [a] finding of neglect is not necessarily predicated on actual harm, but can exist when there is a potential risk of neglect…”
Under the standard set forth in In re Kamari C-L, DCF could establish its case merely by proving by a preponderance of the evidence the existence of a “potential risk” of neglect. However, as the Supreme Court noted, under this standard, DCF could theoretically prevail even if there was only a 10% chance of future harm to a child. According to the Supreme Court, the “potential risk” standard gives insufficient weight to the “combined family integrity interests of parent and child.”
In formulating a more burdensome standard, the Court held that in predictive neglect cases, the trial court must find with respect to each parent that, if the child were to remain in that parent’s independent care, the child would be denied proper care and attention, physically, educationally, emotionally or morally, or would be permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth. Where parents will be caring for the child together, the trial court may treat the parents as a single unit in determining whether DCF has met its burden of proving predictive neglect.
Should you have any questions regarding the foregoing, or DCF matters generally, please feel free to contact Attorney Michael D. DeMeola, Esq. directly. He can be reached in the firm’s Westport office at (203) 221-3100, or by e-mail at mdemeola@mayalaw.com.
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DCFS and Foster Care and child removal is in a crisis mode right now. Judges have to act very carefully before removing kids from a home.
Furthermore the removal of parents from a child’s life can be very traumatic even if the foster home placement is good. Courts should consider allowing open adoptions if the parties agree. Adoption registries should be provided for when the children turn 18 they can find their parents. Ancestry.com and other websites are now allowing children to reconnect with parents and some of them are pretty darned ticked off that there was no open adoption so parents and children can communicate.
“My father was a 95-year-old healthy man when this happened,” Johnson said. “The day before dad was abducted he was on the golf course hitting golf balls with me. He had just lifted weights for 30 minutes and biked for 30 minutes.”
MaryGSykes.com 