Now they can use guardianships as a weapon in lawsuits???? How can we stop the abuse of Adult Guardianships.
May 28, 2009
Judge Appoints Guardian for Plaintiff in Copyright Suit
A federal district judge in Washington appointed a guardian ad litem yesterday to represent the interests of a Maryland architect who has battled her own lawyer for seven years in a copyright suit against a rival architectural firm and the United Arab Emirates.
Elena Sturdza’s suit, filed in 1998 in the U.S. District Court for the District of Columbia, has stalled since 2002 when her lawyer, Nathan Lewin, called into question his client’s competency to make rational decisions regarding her case. Lewin moved then for an appointment of a guardian, and U.S. District Judge Henry Kennedy Jr. granted the request.
But the U.S. Court of Appeals for the D.C. Circuit this year reversed Kennedy, saying Sturdza had not been given ample notice about the proceedings. The appeals court said Sturdza should be given a shot to be heard on Lewin’s motion. That hearing was held earlier this month, at which time there was little doubt that Kennedy would re-appoint a guardian for Sturdza.
“Having provided Sturdza notice and an opportunity to be heard, this court again concludes that the motion for appointment of a guardian ad litem should be granted,” Kennedy wrote in an order published May 28. Click here for a copy of the order. Kennedy earlier this month also ordered Sturdza to undergo a psychiatric evaluation.
When Kennedy first appointed a guardian, the judge noted Sturdza's behavior before him and her pro se filings as compelling reasons why a guardian should represent the plaintiff. Sturdza is "prone to paranoid outbursts and has expressed irrational hostility" toward Lewin, Kennedy wrote in an order.
Sturdza said she has no intention of undergoing an evaluation and she said there is no need for a guardian ad litem. A copy of Sturdza's motion arguing against the appointment of a guardian is here.
Lewin, meanwhile, told The National Law Journal earlier this month that he has no interest in remaining Sturdza’s attorney but he is unwilling to remove himself and let Sturdza proceed pro se. Lewin filed this response to Sturdza's claims earlier this month.
Sturdza would lose the case if she were allowed to go alone in the litigation, Lewin said. Lewin does, however, have a financial interest in the case—Sturdza hired Lewin on a contingent fee basis. If a guardian ad litem determines another lawyer should represent Sturdza, then Lewin said he would not challenge that decision. Kennedy's order did not name of the guardian who will represent Sturdza.
Sturdza’s suit claims the architectural firm Angelos Demetriou & Associates and the UAE ripped off her winning contest design for the UAE embassy in Washington, D.C. Sturdza is seeking millions in damages. A district judge ruled against Sturdza, but Lewin, hired for the appeal, won a favorable ruling in the D.C. Circuit that revived the case.
Posted by Mike Scarcella on May 28, 2009 at 11:39 AM in Current Affairs, D.C. Courts and Government, Legal Business, Personal Finance, Politics and Government Permalink
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Friday, September 25, 2009
Sunday, July 5, 2009
National Groups Address Guardianship Reform To Protect Older Americans
Posted: Thursday, November 11, 2004
COLORADO SPRINGS, CO (November 11, 2004) - Leading advocacy groups for seniors are meeting this week to continue the process of addressing guardianship reform and implementation. Hundreds of thousands of Americans are under the care of a guardianship system in desperate need of repair, according to a report from Washington?s General Accountability Office (GAO). The National Academy of Elder Law Attorneys (NAELA), along with other national groups, will address the surprising nationwide deficiencies in the guardianship system across the United States.
NAELA, The National College of Probate Judges (NCPJ) and the National Guardianship Association (NGA) are convening a Joint Conference with a Wingspan Guardianship Implementation Session at The Broadmoor in Colorado Springs. The three groups will to discuss guardianship issues during the Conference that brings together guardians, elder law attorneys, case managers, social workers, healthcare professionals and state judges from around the country.
We would all like to think that we will be protected by ethical professionals or loving family members if we are ever faced with the need for guardianship as we age, said NAELA elder law attorney A. Frank Johns, who testified at the GAO hearing and is Joint Conference chair. The truth is that in many states across the country little is being done to ensure the necessary funding, training, accountability and monitoring of guardians that could prevent the horrific abuse that continues to occur against our older Americans. This Conference and Session is another step towards a remedy.
The organizations note that, while most guardians do a difficult job very well, standards between federal and state authorities should be set to ensure the quality of all legal guardian care from coast to coast. Guardianship is a legal process utilized when a person can no longer make decisions in his or her own self interest.
United States Senator (ID) Larry Craig, Chairman of the Senate Special Committee on Aging, asked Johns to provide testimony during a U.S. Senate Special Committee on Aging Forum in July of this year. The testimony of Johns, NAELA and NGA member and Joint Conference Chair, coincided with the release of the GAO report underscoring the significance of the problems with the present guardianship system. While our members are dedicated to professional, ethical guardianship for our nation's seniors, said Francine Saccio, NGA President, we agree that significant changes are long overdue for improving the guardianship system in most states across the country. The GAO report found only a few courts working well beyond the state minimum requirements for training and monitoring of guardianship. Those courts are the exception rather than the norm.
In the face of these reports, including felony allegations of a Michigan-based company providing guardianship for over 600 individuals and discoveries earlier this year by Texas Governor Rick Perry of a severe elder neglect cases in his state, the groups will publish guardianship implementation recommendations for states to use for raising standards and helping to fight this nationwide problem.
About the National Academy of Elder Law Attorneys (NAELA)Established in 1987, the National Academy of Elder Law Attorneys (NAELA) is a non-profit association that assists lawyers, bar organizations and others who work with older clients and their families. Members of NAELA are attorneys who are experienced and trained in working with the legal problems of aging Americans and disabled individuals. The mission of the National Academy of Elder Law Attorneys is to establish NAELA members as the premier providers of legal advocacy, guidance and services to enhance the lives of people with special needs and people as they age. NAELA currently has more than 4,800 members across the United States, Canada, Australia and the United Kingdom. For more information on NAELA, the 2004 Wingspan Implementation Work Groups and the 2004 Joint Conference please contact NAELA at 520.881.4005 or visit http://www.naela.org/.
About the National Guardianship Association (NGA)Founded in 1988, NGA is comprised of more than 730 individuals in public and private, for-profit and not-for-profit agencies and organizations as well as individuals concerned with guardianship issues. NGA provides its members with education and training, networking opportunities, and the opportunity to set a national agenda to ensure standards of excellence. The National Guardianship Foundation (NGF) administers a guardianship certification examination, which is the only national credentialing process for guardians in the nation. For more information, please contact NGA at 520.881.6561 or visit http://www.guardianship.org/.
About the National College of Probate Judges (NCPJ)The National College of Probate Judges (NCPJ) was organized in 1968 to improve the administration of justice in courts with probate jurisdiction. The College was established in response to public concern with the time and costs involved in estate administration. NCPJ is the only national organization exclusively dedicated to improving probate law and courts. Probate courts are responsible for equitably handling many kinds of problems in our society. Although they deal primarily with the estates of deceased persons, probate courts also play an important role in protecting the rights of people with special needs - the mentally ill, alcoholics, orphaned children, the aged and persons with developmental disabilities. For further information on NCPJ's membership, programs and events, contact NCPJ at 757.259.1841, or visit http://www.ncpj.org/.
Associations Contact: Ann Krauss 520.323.5786Colorado/On Site Contact: Stan Samples 770.605.0039
source
COLORADO SPRINGS, CO (November 11, 2004) - Leading advocacy groups for seniors are meeting this week to continue the process of addressing guardianship reform and implementation. Hundreds of thousands of Americans are under the care of a guardianship system in desperate need of repair, according to a report from Washington?s General Accountability Office (GAO). The National Academy of Elder Law Attorneys (NAELA), along with other national groups, will address the surprising nationwide deficiencies in the guardianship system across the United States.
NAELA, The National College of Probate Judges (NCPJ) and the National Guardianship Association (NGA) are convening a Joint Conference with a Wingspan Guardianship Implementation Session at The Broadmoor in Colorado Springs. The three groups will to discuss guardianship issues during the Conference that brings together guardians, elder law attorneys, case managers, social workers, healthcare professionals and state judges from around the country.
We would all like to think that we will be protected by ethical professionals or loving family members if we are ever faced with the need for guardianship as we age, said NAELA elder law attorney A. Frank Johns, who testified at the GAO hearing and is Joint Conference chair. The truth is that in many states across the country little is being done to ensure the necessary funding, training, accountability and monitoring of guardians that could prevent the horrific abuse that continues to occur against our older Americans. This Conference and Session is another step towards a remedy.
The organizations note that, while most guardians do a difficult job very well, standards between federal and state authorities should be set to ensure the quality of all legal guardian care from coast to coast. Guardianship is a legal process utilized when a person can no longer make decisions in his or her own self interest.
United States Senator (ID) Larry Craig, Chairman of the Senate Special Committee on Aging, asked Johns to provide testimony during a U.S. Senate Special Committee on Aging Forum in July of this year. The testimony of Johns, NAELA and NGA member and Joint Conference Chair, coincided with the release of the GAO report underscoring the significance of the problems with the present guardianship system. While our members are dedicated to professional, ethical guardianship for our nation's seniors, said Francine Saccio, NGA President, we agree that significant changes are long overdue for improving the guardianship system in most states across the country. The GAO report found only a few courts working well beyond the state minimum requirements for training and monitoring of guardianship. Those courts are the exception rather than the norm.
In the face of these reports, including felony allegations of a Michigan-based company providing guardianship for over 600 individuals and discoveries earlier this year by Texas Governor Rick Perry of a severe elder neglect cases in his state, the groups will publish guardianship implementation recommendations for states to use for raising standards and helping to fight this nationwide problem.
About the National Academy of Elder Law Attorneys (NAELA)Established in 1987, the National Academy of Elder Law Attorneys (NAELA) is a non-profit association that assists lawyers, bar organizations and others who work with older clients and their families. Members of NAELA are attorneys who are experienced and trained in working with the legal problems of aging Americans and disabled individuals. The mission of the National Academy of Elder Law Attorneys is to establish NAELA members as the premier providers of legal advocacy, guidance and services to enhance the lives of people with special needs and people as they age. NAELA currently has more than 4,800 members across the United States, Canada, Australia and the United Kingdom. For more information on NAELA, the 2004 Wingspan Implementation Work Groups and the 2004 Joint Conference please contact NAELA at 520.881.4005 or visit http://www.naela.org/.
About the National Guardianship Association (NGA)Founded in 1988, NGA is comprised of more than 730 individuals in public and private, for-profit and not-for-profit agencies and organizations as well as individuals concerned with guardianship issues. NGA provides its members with education and training, networking opportunities, and the opportunity to set a national agenda to ensure standards of excellence. The National Guardianship Foundation (NGF) administers a guardianship certification examination, which is the only national credentialing process for guardians in the nation. For more information, please contact NGA at 520.881.6561 or visit http://www.guardianship.org/.
About the National College of Probate Judges (NCPJ)The National College of Probate Judges (NCPJ) was organized in 1968 to improve the administration of justice in courts with probate jurisdiction. The College was established in response to public concern with the time and costs involved in estate administration. NCPJ is the only national organization exclusively dedicated to improving probate law and courts. Probate courts are responsible for equitably handling many kinds of problems in our society. Although they deal primarily with the estates of deceased persons, probate courts also play an important role in protecting the rights of people with special needs - the mentally ill, alcoholics, orphaned children, the aged and persons with developmental disabilities. For further information on NCPJ's membership, programs and events, contact NCPJ at 757.259.1841, or visit http://www.ncpj.org/.
Associations Contact: Ann Krauss 520.323.5786Colorado/On Site Contact: Stan Samples 770.605.0039
source
Assessing The Need for Guardianship
source of article
May 3rd, 2009
Professionals whose practices are devoted to our aging population are often confronted with older adults who appear to be struggling to manage their financial or medical affairs. Questions may arise as to an individual’s competency, based upon advanced age, physical infirmities and/or cognitive deficits. Understanding the issue of capacity, and the options available to these vulnerable elders and their loved ones, may be critical in the successful management of your field of practice.
Questions of capacity necessarily involve the competing issues of an individual’s personal freedom and right of autonomy, on the one hand, and the protection of vulnerable individuals, on the other.
When making a capacity assessment, professionals must be mindful of the gravity of a judicial declaration of legal incapacity:
Despite the seemingly benevolent nature of the guardianship system, the consequences of guardianship are very harsh. When a court appoints a guardian, the ward loses all rights to determine anything about [his or her] life…. By appointing a guardian, the court entrusts to someone else the power to choose where they will live, what medical treatment they will get and, in rare cases, when they will die…. Gottlich, V., The Role of the Attorney for the Defendant in Adult Guardianship Cases: an Advocate’s Perspective, 7 Md. J. Contemp. Legal Issues 191, 197 (Fall/Winter 1995-1996) (quoting House Subcomm. on Health and Long-Term Care of the House Special Comm. on Aging, Abuses in Guardianship of the Elderly and Inform: A National Disgrace, H.R. Doc. No. 641, 100th Cong., 1st Sess. 4 (1987)).
However, those of us engaged in fields of practice involving the elderly feel an obligation to protect those who are in need of assistance, and when an elder’s ability to make rational decisions is sufficiently impaired, particularly in situations in which the elder has not made effective alternate voluntary arrangements (such as through a durable power of attorney, the appointment of a health care surrogate, etc.), See Regan, J., Morgan, R. and English, D. Tax, Estate & Financial Planning for the Elderly, §16.02 at 16-7 (Matthew Bender 2005), legal intervention may be necessary. Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13-Sum NAELA Quarterly (Summer 2000).
Guardianship: Background
Adults are presumed to be legally competent unless they are declared by a court to be incompetent (“incapacitated”), or incapable of caring for themselves. Frolik, L. and Brown, M., Advising the Elderly or Disabled Client, §22.01 (2d ed. 2003)
A guardianship (referred to by other terms, such as “conservatorship,” in some states) is a formal legal action for substitute decision-making: it confers upon a designated individual (the guardian) the right to make decisions on behalf of another (the ward). A guardianship action is an involuntary proceeding, and it may be established over the opposition of the incapacitated person.
There is no federal law governing guardianship; state law applies to guardianship actions. The substance of these laws, including but not limited to the legal standards for determining incapacity, varies considerably among states. Id.; Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13-Sum NAELA Quarterly (Summer 2000).
Guardianship Appointments
In the event that a judicial determination of incapacity is made, the court may appoint a “guardian of the person,” to make personal decisions such as living arrangements and health decisions; a “guardian of the property,” to manage the incapacitated person’s estate and finances; or a “plenary guardian,” with power over both the person and the estate. Frolik, L. and Brown, M., Advising the Elderly or Disabled Client, §22.01 (2d ed. 2003) As discussed below, the court may also order a limited guardianship.
The Concept of a “Limited” Guardianship
Courts are increasingly recognizing the concept of a “limited guardianship”, in which the subject of the guardianship action is found to be an incapacitated person and a guardian is appointed, but the guardian’s powers are limited to those areas in which the incapacitated person does not retain decision-making capacity.
In practice, however, the use of limited guardianships is generally more prevalent in cases involving the developmentally disabled, as opposed to elderly clients suffering from dementia or Alzheimer’s disease. See Begley, T. and Jeffreys, J., Representing the Elderly Client, §17.04[D] at 17-9 (Aspen Publishers 2004).
Determining “Incapacity”: The Legal Requirements
The legal standard for determining “capacity” varies, depending upon the transaction in issue. For example, testamentary capacity (the capacity to make a valid will), is said to exist if, at the time the will is made, the testator is able to comprehend in general terms the property comprising his or her estate, the natural objects of his or her bounty, the disposition he/she is making by executing the will, and how each of these factors relate to the others. Restatement (Third) of Property: Wills & Other Donative Transfers § 8.1 (2003).
Contractual capacity (the capacity to enter into a contract) is said to exist if the person reasonably appreciates the effect and consequences of the transaction, and is capable of exercising free will with respect to the contract. 17A Corpus Juris Secundum Contracts §141 (2008). Donative capacity, or the capacity to make a gift, exists if the donor is able to understand the “nature and effect of his or her act.” 38 American Jurisprudence 2d §13 (2008).
In contrast, as set forth above, a guardianship action is predicated upon a
finding by a court that the individual in question is incapacitated. The legal standard for determining incapacity is based upon the statutory and common law of a particular state, and there is no universal legal definition of “incapacity”. Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13 NAELA Quarterly 3 (Summer 2000). However, the general standard is that a guardianship is appropriate in cases in which a person, because of mental or physical illness or disability, lacks sufficient capacity or understanding to make decisions regarding his or her affairs, or to communicate those decisions to others. See Frolick, L., Science, Common Sense, and the Determination of Mental Capacity, 5 Psychology, Public Policy, and Law 41 (Mar. 1999).
Determining “Incapacity”: A Practical GuideThe aforementioned general legal definition notwithstanding, the inquiry into whether a client is “incapacitated” is often a troubling and difficult issue. The following assessment tools may provide guidance in the exploration of this area, and may serve to inform the decision as to whether further action is necessary.
1. Functional AssessmentA functional assessment involves the examination of the individual’s behavior in order to assess that individual’s contextual capacity. Functional assessments recognize that an individual may be incapacitated for some purposes but not for others. See Regan, J., Morgan, R. and English, D. Tax, Estate & Financial Planning for the Elderly, §7-8/2 at 7-35 (Matthew Bender 2005).
2.Cognitive AssessmentA cognitive assessment is a traditional mental health assessment to assess an individual’s orientation to time, place, person and intellectual functioning. Such assessments include the Mini Mental State Examination and the Mental Status Questionnaire. See Id.; Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13-Sum NAELA Quarterly (Summer 2000).
What To Do If You Suspect IncapacityIn the event that you suspect that an elderly client is incapacitated and that a guardianship may be appropriate, you can report your concerns to a variety of sources, including the individual’s family, close friends, health care provider or attorney. If the individual is institutionalized, you can report your concerns to the administrator of the facility. If the individual is not institutionalized, and the individual’s family, friends or medical doctor are unable or unwilling to take notice of your concerns (or if you know of no family members, friends or treating doctors of the individual), you may also contact local adult protective services agencies in your area.
May 3rd, 2009
Professionals whose practices are devoted to our aging population are often confronted with older adults who appear to be struggling to manage their financial or medical affairs. Questions may arise as to an individual’s competency, based upon advanced age, physical infirmities and/or cognitive deficits. Understanding the issue of capacity, and the options available to these vulnerable elders and their loved ones, may be critical in the successful management of your field of practice.
Questions of capacity necessarily involve the competing issues of an individual’s personal freedom and right of autonomy, on the one hand, and the protection of vulnerable individuals, on the other.
When making a capacity assessment, professionals must be mindful of the gravity of a judicial declaration of legal incapacity:
Despite the seemingly benevolent nature of the guardianship system, the consequences of guardianship are very harsh. When a court appoints a guardian, the ward loses all rights to determine anything about [his or her] life…. By appointing a guardian, the court entrusts to someone else the power to choose where they will live, what medical treatment they will get and, in rare cases, when they will die…. Gottlich, V., The Role of the Attorney for the Defendant in Adult Guardianship Cases: an Advocate’s Perspective, 7 Md. J. Contemp. Legal Issues 191, 197 (Fall/Winter 1995-1996) (quoting House Subcomm. on Health and Long-Term Care of the House Special Comm. on Aging, Abuses in Guardianship of the Elderly and Inform: A National Disgrace, H.R. Doc. No. 641, 100th Cong., 1st Sess. 4 (1987)).
However, those of us engaged in fields of practice involving the elderly feel an obligation to protect those who are in need of assistance, and when an elder’s ability to make rational decisions is sufficiently impaired, particularly in situations in which the elder has not made effective alternate voluntary arrangements (such as through a durable power of attorney, the appointment of a health care surrogate, etc.), See Regan, J., Morgan, R. and English, D. Tax, Estate & Financial Planning for the Elderly, §16.02 at 16-7 (Matthew Bender 2005), legal intervention may be necessary. Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13-Sum NAELA Quarterly (Summer 2000).
Guardianship: Background
Adults are presumed to be legally competent unless they are declared by a court to be incompetent (“incapacitated”), or incapable of caring for themselves. Frolik, L. and Brown, M., Advising the Elderly or Disabled Client, §22.01 (2d ed. 2003)
A guardianship (referred to by other terms, such as “conservatorship,” in some states) is a formal legal action for substitute decision-making: it confers upon a designated individual (the guardian) the right to make decisions on behalf of another (the ward). A guardianship action is an involuntary proceeding, and it may be established over the opposition of the incapacitated person.
There is no federal law governing guardianship; state law applies to guardianship actions. The substance of these laws, including but not limited to the legal standards for determining incapacity, varies considerably among states. Id.; Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13-Sum NAELA Quarterly (Summer 2000).
Guardianship Appointments
In the event that a judicial determination of incapacity is made, the court may appoint a “guardian of the person,” to make personal decisions such as living arrangements and health decisions; a “guardian of the property,” to manage the incapacitated person’s estate and finances; or a “plenary guardian,” with power over both the person and the estate. Frolik, L. and Brown, M., Advising the Elderly or Disabled Client, §22.01 (2d ed. 2003) As discussed below, the court may also order a limited guardianship.
The Concept of a “Limited” Guardianship
Courts are increasingly recognizing the concept of a “limited guardianship”, in which the subject of the guardianship action is found to be an incapacitated person and a guardian is appointed, but the guardian’s powers are limited to those areas in which the incapacitated person does not retain decision-making capacity.
In practice, however, the use of limited guardianships is generally more prevalent in cases involving the developmentally disabled, as opposed to elderly clients suffering from dementia or Alzheimer’s disease. See Begley, T. and Jeffreys, J., Representing the Elderly Client, §17.04[D] at 17-9 (Aspen Publishers 2004).
Determining “Incapacity”: The Legal Requirements
The legal standard for determining “capacity” varies, depending upon the transaction in issue. For example, testamentary capacity (the capacity to make a valid will), is said to exist if, at the time the will is made, the testator is able to comprehend in general terms the property comprising his or her estate, the natural objects of his or her bounty, the disposition he/she is making by executing the will, and how each of these factors relate to the others. Restatement (Third) of Property: Wills & Other Donative Transfers § 8.1 (2003).
Contractual capacity (the capacity to enter into a contract) is said to exist if the person reasonably appreciates the effect and consequences of the transaction, and is capable of exercising free will with respect to the contract. 17A Corpus Juris Secundum Contracts §141 (2008). Donative capacity, or the capacity to make a gift, exists if the donor is able to understand the “nature and effect of his or her act.” 38 American Jurisprudence 2d §13 (2008).
In contrast, as set forth above, a guardianship action is predicated upon a
finding by a court that the individual in question is incapacitated. The legal standard for determining incapacity is based upon the statutory and common law of a particular state, and there is no universal legal definition of “incapacity”. Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13 NAELA Quarterly 3 (Summer 2000). However, the general standard is that a guardianship is appropriate in cases in which a person, because of mental or physical illness or disability, lacks sufficient capacity or understanding to make decisions regarding his or her affairs, or to communicate those decisions to others. See Frolick, L., Science, Common Sense, and the Determination of Mental Capacity, 5 Psychology, Public Policy, and Law 41 (Mar. 1999).
Determining “Incapacity”: A Practical GuideThe aforementioned general legal definition notwithstanding, the inquiry into whether a client is “incapacitated” is often a troubling and difficult issue. The following assessment tools may provide guidance in the exploration of this area, and may serve to inform the decision as to whether further action is necessary.
1. Functional AssessmentA functional assessment involves the examination of the individual’s behavior in order to assess that individual’s contextual capacity. Functional assessments recognize that an individual may be incapacitated for some purposes but not for others. See Regan, J., Morgan, R. and English, D. Tax, Estate & Financial Planning for the Elderly, §7-8/2 at 7-35 (Matthew Bender 2005).
2.Cognitive AssessmentA cognitive assessment is a traditional mental health assessment to assess an individual’s orientation to time, place, person and intellectual functioning. Such assessments include the Mini Mental State Examination and the Mental Status Questionnaire. See Id.; Kapp, M., Measuring Client Capacity: Not So Easy Not So Fast, 13-Sum NAELA Quarterly (Summer 2000).
What To Do If You Suspect IncapacityIn the event that you suspect that an elderly client is incapacitated and that a guardianship may be appropriate, you can report your concerns to a variety of sources, including the individual’s family, close friends, health care provider or attorney. If the individual is institutionalized, you can report your concerns to the administrator of the facility. If the individual is not institutionalized, and the individual’s family, friends or medical doctor are unable or unwilling to take notice of your concerns (or if you know of no family members, friends or treating doctors of the individual), you may also contact local adult protective services agencies in your area.
Friday, June 26, 2009
California Financial Elder Abuse: The Old and the Wealthy are Prime Targets
June 25, 2009
Posted In: California Financial Elder Abuse
By Steven Peck on June 25, 2009 1:00 AM Permalink
For a little while, at least until the police arrived with an arrest warrant, it must have seemed like the perfect crime.
Authorities charge that investment adviser Jeffrey Southard systematically bilked elderly clients out of $1.8 million in a Ponzi scheme that unraveled when securities regulators began looking into his business. Southard pleaded guilty last week to preying on elderly clients, who turned over their money to him on the promise of guaranteed annual returns of 6 percent to 11 percent.
Instead of enriching his clients, Southard used much of the money to pay his mortgage, private-school tuition, car payments, and other personal expenses.
The story rated a few paragraphs in the newspaper, but the fact is that schemes by investment advisers and other professionals that target elderly clients are proliferating. The reason is, as Willie Sutton put it when asked why he robbed banks, that is where the money is.
People 50 and over are sitting on a vast pile of wealth - 70 percent of the net worth of U.S. households, according to MetLife, the insurance giant. Those assets have been accumulating over several decades of unprecedented economic growth in the United States.
Some elderly are especially vulnerable because they are physically weakened, emotionally vulnerable, or impaired in other ways that might affect their judgment.
That exposure, along with the potential changes in inheritance rules and the sheer magnitude of the over-60 demographic, is helping to fuel a sharp uptick in business for lawyers who are experts in wills and estates and overall wealth management.
This is a rarefied profession in which lawyers dwell in what is to most souls a terra incognita of abstruse tax laws and IRS opinions, the mastery of which can seem more like sorcery than law.
It grows increasingly complex with the size of the estate.
For all the expertise required in complex estate planning, some estate lawyers, especially at some big firms, traditionally played a secondary role. They're known as service partners and are referred work by rainmaker lawyers with important clients who in addition to their commercial transactions may need some help with their bulging portfolios.
Prospective clients should steer clear of independent financial advisers who are not affiliated with a large institution that can make restitution if funds are misappropriated. Make sure that the adviser does not have custody of the funds and thus cannot divert the money for his or her own use. That was the case with Bernie Madoff, and indeed, Jeffrey Southard. In both cases, clients turned over funds directly to their advisers, who in turn used the money for themselves.
Good data are hard to come by, but policymakers, financial institutions, and others with a stake in the issue are making stabs at measuring the problem. In a study released in March, MetLife's Mature Market Institute, a research arm of the insurer, concluded that thefts and other forms of financial exploitation of the elderly amounted to at least $2.6 billion a year. The study found professional advisers, such as lawyers and investment advisers, account for the largest group of offenders at about 18 percent, but they were closely followed by family members pilfering funds and other assets.
Other studies have concluded that family members by far commit most of the financial crimes against the elderly, accounting for 50 percent or more of the cases.
Plenty of such rip-offs are very commonplace, and the wealthy, though often having the benefit of good legal advice and presumably more sophisticated than most, are as vulnerable as anyone.
The Bernie Madoff case made this point amply clear.
A lot of people went to Bernie Madoff; he looked so wealthy and wise. People will trust someone without looking into it. They don't ask, Where is my money going? Wealthy people are not always smarter than people with less wealth.Should you beleive that you or a family member has been the victim of financial elder abuse immediately contact Steven Peck's Premier Legal toll free at 1-866-999-9085 to talk to an experienced California Financial Elder Abuse attorney
http://www.californiaelderlawattorneyblog.com/2009/06/for-a-little-while-at.html
Posted In: California Financial Elder Abuse
By Steven Peck on June 25, 2009 1:00 AM Permalink
For a little while, at least until the police arrived with an arrest warrant, it must have seemed like the perfect crime.
Authorities charge that investment adviser Jeffrey Southard systematically bilked elderly clients out of $1.8 million in a Ponzi scheme that unraveled when securities regulators began looking into his business. Southard pleaded guilty last week to preying on elderly clients, who turned over their money to him on the promise of guaranteed annual returns of 6 percent to 11 percent.
Instead of enriching his clients, Southard used much of the money to pay his mortgage, private-school tuition, car payments, and other personal expenses.
The story rated a few paragraphs in the newspaper, but the fact is that schemes by investment advisers and other professionals that target elderly clients are proliferating. The reason is, as Willie Sutton put it when asked why he robbed banks, that is where the money is.
People 50 and over are sitting on a vast pile of wealth - 70 percent of the net worth of U.S. households, according to MetLife, the insurance giant. Those assets have been accumulating over several decades of unprecedented economic growth in the United States.
Some elderly are especially vulnerable because they are physically weakened, emotionally vulnerable, or impaired in other ways that might affect their judgment.
That exposure, along with the potential changes in inheritance rules and the sheer magnitude of the over-60 demographic, is helping to fuel a sharp uptick in business for lawyers who are experts in wills and estates and overall wealth management.
This is a rarefied profession in which lawyers dwell in what is to most souls a terra incognita of abstruse tax laws and IRS opinions, the mastery of which can seem more like sorcery than law.
It grows increasingly complex with the size of the estate.
For all the expertise required in complex estate planning, some estate lawyers, especially at some big firms, traditionally played a secondary role. They're known as service partners and are referred work by rainmaker lawyers with important clients who in addition to their commercial transactions may need some help with their bulging portfolios.
Prospective clients should steer clear of independent financial advisers who are not affiliated with a large institution that can make restitution if funds are misappropriated. Make sure that the adviser does not have custody of the funds and thus cannot divert the money for his or her own use. That was the case with Bernie Madoff, and indeed, Jeffrey Southard. In both cases, clients turned over funds directly to their advisers, who in turn used the money for themselves.
Good data are hard to come by, but policymakers, financial institutions, and others with a stake in the issue are making stabs at measuring the problem. In a study released in March, MetLife's Mature Market Institute, a research arm of the insurer, concluded that thefts and other forms of financial exploitation of the elderly amounted to at least $2.6 billion a year. The study found professional advisers, such as lawyers and investment advisers, account for the largest group of offenders at about 18 percent, but they were closely followed by family members pilfering funds and other assets.
Other studies have concluded that family members by far commit most of the financial crimes against the elderly, accounting for 50 percent or more of the cases.
Plenty of such rip-offs are very commonplace, and the wealthy, though often having the benefit of good legal advice and presumably more sophisticated than most, are as vulnerable as anyone.
The Bernie Madoff case made this point amply clear.
A lot of people went to Bernie Madoff; he looked so wealthy and wise. People will trust someone without looking into it. They don't ask, Where is my money going? Wealthy people are not always smarter than people with less wealth.Should you beleive that you or a family member has been the victim of financial elder abuse immediately contact Steven Peck's Premier Legal toll free at 1-866-999-9085 to talk to an experienced California Financial Elder Abuse attorney
http://www.californiaelderlawattorneyblog.com/2009/06/for-a-little-while-at.html
Wednesday, June 24, 2009
Florida Judge Grants Permission to Commit Crime
Seminole County, Florida
RE: “Crime Pass”
A complaint of alleged judicial misconduct against Judge Nancy F. Alley of Florida’s
Eighteenth Circuit Court (407 665-4330) has today been denied by Florida’s judiciary. The
judiciary’s suggestion for further redress will be investigated in an attempt to stop
pre-crime immunity before this new practice of criminal protection
becomes commonplace in our federal, state and local judicial systems.
As judges begin granting such passes to commit crime, our reliance upon laws and
prosecutors to protect society and deter criminal activity will vanish.
Prosecutors receive crucial testimony for granting post-crime immunity.
Judges may acquire undefined consideration for granting pre-crime immunity.
Judge Alley’s unprecedented and unauthorized Order creates a new road for illegal activity by granting absolute
permission to break any law in the first place (pre-crime). In contrast, pre-emptive immunity is described as an
Executive Order of immunity from investigation after an unlawful act has taken place so that the unlawful actor will
never see the light of prosecution. Pre-emptive immunity surrounded the recent Bush Administration. An
Executive Pardon excuses one's conduct after breaking a law and subsequent conviction. Judge Alley’s imaginative
creation of pre-crime absolution renders pre-emptive immunity and pardons obsolete.
To highlight the established procedure for gaining pre-crime immunity, follow the below contents of recently
discovered documents involving the guardianship of Louise A. Falvo (case# 2008-GA-0509): Judge Nancy Alley
received a written request from Professional Guardian Rebecca Fierle asking for:
“petitioner respectfully requests that the court’s order finds that the petitioner
is neither responsible for nor authorized to attempt to determine the true intentions
of the Ward regarding her estate plan, and absolves her of any responsibility or
liability either now or in the future”
It is a known violation of Florida’s guardianship law not to protect and preserve the property of a ward:
744.361 POWERS AND DUTIES OF GUARDIAN. -- (6)(a) Protect and pre se rve the property and invest it
prudently as provided in chapter 518, apply it as provided in s.744.397, and account for it faithfully.
Regardless, Judge Alley set aside the statute and ordered on June 11, 2008:
“REBECCA FIERLE, the Plenary Guardian of the Property and Person of the Ward,
the alleged intentions or estate plan of the Ward”
Judge Nancy Alley has thrown a roadblock in front of criminal prosecutors and civil trial attorneys. Last summer’s
issuance of this nation’s first of its kind pre-absolution, an unprecedented privilege of absolute immunity from
prosecution before the commission of unlawful acts, provides court permission to a civilian to plan and execute
crime without threat of investigation or prosecution. This new type of judicial order will spread quickly and
dismantle the very fabric of rule of law. Blanket immunity from criminal and civil prosecution is also a blow to our
elderly population, many of whom are currently victims of unscrupulous professionals. Criminal enterprise will
benefit from judicial passes of immunity from existing laws and will flaunt their absolute immunity from criminal
and civil liability.
By: The Friends Of Louise A. Falvo
Visit www.CrimePass.com for Contact Information pertinent parts underlined for emphasis
http://www.crimepass.com/images/News_Release_for_Web.pdf
RE: “Crime Pass”
A complaint of alleged judicial misconduct against Judge Nancy F. Alley of Florida’s
Eighteenth Circuit Court (407 665-4330) has today been denied by Florida’s judiciary. The
judiciary’s suggestion for further redress will be investigated in an attempt to stop
pre-crime immunity before this new practice of criminal protection
becomes commonplace in our federal, state and local judicial systems.
As judges begin granting such passes to commit crime, our reliance upon laws and
prosecutors to protect society and deter criminal activity will vanish.
Prosecutors receive crucial testimony for granting post-crime immunity.
Judges may acquire undefined consideration for granting pre-crime immunity.
Judge Alley’s unprecedented and unauthorized Order creates a new road for illegal activity by granting absolute
permission to break any law in the first place (pre-crime). In contrast, pre-emptive immunity is described as an
Executive Order of immunity from investigation after an unlawful act has taken place so that the unlawful actor will
never see the light of prosecution. Pre-emptive immunity surrounded the recent Bush Administration. An
Executive Pardon excuses one's conduct after breaking a law and subsequent conviction. Judge Alley’s imaginative
creation of pre-crime absolution renders pre-emptive immunity and pardons obsolete.
To highlight the established procedure for gaining pre-crime immunity, follow the below contents of recently
discovered documents involving the guardianship of Louise A. Falvo (case# 2008-GA-0509): Judge Nancy Alley
received a written request from Professional Guardian Rebecca Fierle asking for:
“petitioner respectfully requests that the court’s order finds that the petitioner
is neither responsible for nor authorized to attempt to determine the true intentions
of the Ward regarding her estate plan, and absolves her of any responsibility or
liability either now or in the future”
It is a known violation of Florida’s guardianship law not to protect and preserve the property of a ward:
744.361 POWERS AND DUTIES OF GUARDIAN. -- (6)(a) Protect and pre se rve the property and invest it
prudently as provided in chapter 518, apply it as provided in s.744.397, and account for it faithfully.
Regardless, Judge Alley set aside the statute and ordered on June 11, 2008:
“REBECCA FIERLE, the Plenary Guardian of the Property and Person of the Ward,
the alleged intentions or estate plan of the Ward”
Judge Nancy Alley has thrown a roadblock in front of criminal prosecutors and civil trial attorneys. Last summer’s
issuance of this nation’s first of its kind pre-absolution, an unprecedented privilege of absolute immunity from
prosecution before the commission of unlawful acts, provides court permission to a civilian to plan and execute
crime without threat of investigation or prosecution. This new type of judicial order will spread quickly and
dismantle the very fabric of rule of law. Blanket immunity from criminal and civil prosecution is also a blow to our
elderly population, many of whom are currently victims of unscrupulous professionals. Criminal enterprise will
benefit from judicial passes of immunity from existing laws and will flaunt their absolute immunity from criminal
and civil liability.
By: The Friends Of Louise A. Falvo
Visit www.CrimePass.com for Contact Information pertinent parts underlined for emphasis
http://www.crimepass.com/images/News_Release_for_Web.pdf
Octuplets’ guardianship hearing postponed until July
June 23rd, 2009, 10:55 am · 13 Comments · posted by Rachanee Srisavasdi
A hearing to determine whether a guardian should be appointed to care for the octuplets of Nadya Suleman — better known as “Octomom” — has been postponed until July 27.
Suleman, who lives in La Habra, is accused of exploiting her babies in a petition filed by high-profile attorney Gloria Allred.
Allred, who filed the petition on behalf of child-actor advocate Paul Petersen, seeks to have a guardian appointed to protect Suleman’s octuplets “so that not one penny of their earnings will be spent by their mother.”
Allred filed the petition on grounds that the babies are working when they are being photographed and videotaped for online Web posts that Suleman gets paid for
The hearing, which was orginally scheduled for June 22, will be held before Orange County Superior Court Judge Gerald G. Johnston at Lamoreaux Justice Center in Orange.
Source: http://crime.freedomblogging.com/2009/06/23/octuplets-guardianship-hearing-postponed-until-july/4847/
A hearing to determine whether a guardian should be appointed to care for the octuplets of Nadya Suleman — better known as “Octomom” — has been postponed until July 27.
Suleman, who lives in La Habra, is accused of exploiting her babies in a petition filed by high-profile attorney Gloria Allred.
Allred, who filed the petition on behalf of child-actor advocate Paul Petersen, seeks to have a guardian appointed to protect Suleman’s octuplets “so that not one penny of their earnings will be spent by their mother.”
Allred filed the petition on grounds that the babies are working when they are being photographed and videotaped for online Web posts that Suleman gets paid for
The hearing, which was orginally scheduled for June 22, will be held before Orange County Superior Court Judge Gerald G. Johnston at Lamoreaux Justice Center in Orange.
Source: http://crime.freedomblogging.com/2009/06/23/octuplets-guardianship-hearing-postponed-until-july/4847/
Tuesday, June 9, 2009
Hot cereal feeding could lead to homicide charges
PhillyBurbs.com
updated 1 hour, 1 minute ago
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Levittown - Montgomery County authorities are investigating whether homicide charges are warranted in the death of an elderly Hatfield Township man who died just two weeks after he was severely burned from being fed scalding hot cereal by an aide at a geriatric facility.The county coroner's office Monday filed a petition in court to exhume the body of the 79-year-old man who died last Oct. 23.The private physician of the man, who was non-communicative, bedridden and suffering from end-stage Alzheimer's dementia when he died at home under hospice care, certified that the man's death from malnutrition was the result of natural causes, specifically "Alzheimer's dementia."As a result, county Coroner Dr. Walter I. Hofman states in his petition, the death was not reported to the coroner's office and there was no opportunity for an autopsy before burial.However, Hofman said, he was notified in January by the district attorney's office about its ongoing investigation of the abuse incident.Based on information received from law enforcement authorities and his own review of the victim's medical records, Hofman in April issued a coroner's death certificate that lists a dual cause of death - complications following burns of oral mucosa, tongue and throat and Alzheimer's dementia.Hofman now wants to exhume the man's body to further document the nature and extent of the burn injuries."If the coroner determines (the victim's) death is a result of the October incident, then that is a homicide and we will pursue it," said county Assistant District Attorney Bradford A. Richman, who heads his office's elder abuse prosecution unit."An autopsy will provide us with evidence to prosecute the responsible people," said Richman.Alvador Thompson, the now-former nurse's aide, was arrested last December on charges stemming from the Oct. 8 scalding incident.Thompson, 55, of the 2900 block of Walnut Street, Hatfield Township, is charged with aggravated assault, neglect of care-dependent person, simple assault and recklessly endangering. She remains free on bail while awaiting a repeatedly postponed preliminary hearing.The victim's family members, including his widow, have consented to the exhumation while requesting that Hatfield Township police Detective John A. Ciarlello, who spearheaded the investigation, be present during the autopsy, the coroner's petition stated.No date has been set for court action on the coroner's petition.The alleged abuse incident happened on Oct. 8 while the man, who was totally dependent on others for his care, was a patient at Cambridge Brightfield Personal Care and Hospice in the 1800 block of Walnut Street in Hatfield Township.The man, who was receiving hospice care, suffered significant burns to his lips, tongue and throat after Thompson fed him hot cereal, according to the criminal complaint.One witness told authorities she recalled seeing the man attempting to push the cup of hot cereal away from his mouth that morning, the complaint said.Thompson, who was hired at the facility in March 2008 and reportedly received on-the-job training concerning the proper feeding of residents, did not report the incident or seek medical treatment for the man following the incident, the complaint said.A facility supervisor, noticing later that morning what initially appeared to be a torn and infected upper lip on that patient, asked Thompson if she knew how the man received the injury. Thompson replied that she did not, according to the complaint.By noon that same day, the man's lip was blistered and swollen and he was subsequently taken to Central Montgomery Medical Center where he was admitted for treatment.Police were contacted the following day by the victim's daughter, who reported the burn injury.Visiting the hospital on Oct. 10, Ciarlello said in the complaint that he personally observed severe burns and blistering on the man's upper and lower lips and tongue.During the course of the investigation, one supervisor alleged that Thompson "would manhandle the residents when transporting them and be rough with them," the criminal complaint said.The man later was released from the hospital and went home where he continued with hospice care, according to authorities.Margaret Gibbons can be reached at 610-279-6153 or mgibbons@phillyBurbs.com.
http://www.msnbc.msn.com/id/31180871
updated 1 hour, 1 minute ago
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Levittown - Montgomery County authorities are investigating whether homicide charges are warranted in the death of an elderly Hatfield Township man who died just two weeks after he was severely burned from being fed scalding hot cereal by an aide at a geriatric facility.The county coroner's office Monday filed a petition in court to exhume the body of the 79-year-old man who died last Oct. 23.The private physician of the man, who was non-communicative, bedridden and suffering from end-stage Alzheimer's dementia when he died at home under hospice care, certified that the man's death from malnutrition was the result of natural causes, specifically "Alzheimer's dementia."As a result, county Coroner Dr. Walter I. Hofman states in his petition, the death was not reported to the coroner's office and there was no opportunity for an autopsy before burial.However, Hofman said, he was notified in January by the district attorney's office about its ongoing investigation of the abuse incident.Based on information received from law enforcement authorities and his own review of the victim's medical records, Hofman in April issued a coroner's death certificate that lists a dual cause of death - complications following burns of oral mucosa, tongue and throat and Alzheimer's dementia.Hofman now wants to exhume the man's body to further document the nature and extent of the burn injuries."If the coroner determines (the victim's) death is a result of the October incident, then that is a homicide and we will pursue it," said county Assistant District Attorney Bradford A. Richman, who heads his office's elder abuse prosecution unit."An autopsy will provide us with evidence to prosecute the responsible people," said Richman.Alvador Thompson, the now-former nurse's aide, was arrested last December on charges stemming from the Oct. 8 scalding incident.Thompson, 55, of the 2900 block of Walnut Street, Hatfield Township, is charged with aggravated assault, neglect of care-dependent person, simple assault and recklessly endangering. She remains free on bail while awaiting a repeatedly postponed preliminary hearing.The victim's family members, including his widow, have consented to the exhumation while requesting that Hatfield Township police Detective John A. Ciarlello, who spearheaded the investigation, be present during the autopsy, the coroner's petition stated.No date has been set for court action on the coroner's petition.The alleged abuse incident happened on Oct. 8 while the man, who was totally dependent on others for his care, was a patient at Cambridge Brightfield Personal Care and Hospice in the 1800 block of Walnut Street in Hatfield Township.The man, who was receiving hospice care, suffered significant burns to his lips, tongue and throat after Thompson fed him hot cereal, according to the criminal complaint.One witness told authorities she recalled seeing the man attempting to push the cup of hot cereal away from his mouth that morning, the complaint said.Thompson, who was hired at the facility in March 2008 and reportedly received on-the-job training concerning the proper feeding of residents, did not report the incident or seek medical treatment for the man following the incident, the complaint said.A facility supervisor, noticing later that morning what initially appeared to be a torn and infected upper lip on that patient, asked Thompson if she knew how the man received the injury. Thompson replied that she did not, according to the complaint.By noon that same day, the man's lip was blistered and swollen and he was subsequently taken to Central Montgomery Medical Center where he was admitted for treatment.Police were contacted the following day by the victim's daughter, who reported the burn injury.Visiting the hospital on Oct. 10, Ciarlello said in the complaint that he personally observed severe burns and blistering on the man's upper and lower lips and tongue.During the course of the investigation, one supervisor alleged that Thompson "would manhandle the residents when transporting them and be rough with them," the criminal complaint said.The man later was released from the hospital and went home where he continued with hospice care, according to authorities.Margaret Gibbons can be reached at 610-279-6153 or mgibbons@phillyBurbs.com.
http://www.msnbc.msn.com/id/31180871
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