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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.
“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.
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.
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.
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 Weiss
“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.
“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.”