Featured Content

ProbateSharks.com

Our mission is to expose and remedy corruption in the Probate Court of Cook County, Illinois. We assist, educate and enlighten families of the dead, the dying, the disabled and the aged to better understand their rights in order to protect themselves from the excesses of the Probate Court of Cook County. ProbateSharks.com is dedicated to networking the human element of people to people. We join together in reforming the corrupt Cook County Probate Court system.

Showing posts with label guardianship. Show all posts
Showing posts with label guardianship. Show all posts

Saturday, September 17, 2016

Extra! Extra! Read all about it: guardianship miracle!

Extra! Extra! Read all about it: guardianship miracle!

Published on: by Candy Schwager Category:ADA, Civil rights, EJF, Guardianship, Probate Comment

image
image
Great news!! Wow! From Rick Black:
Tim Lahrman died September 15, 2016 :
The day the U.S. Senate Judiciary Committee unanimously approved the first national guardianship oversight bill. May Tim rest in peace as we will carry on for him. We have to get this bill made into law…for Tim and thousands of others.
My commentary:
Tim Lahrman died just hours after our Foundation for Elder Justice was complete and we began to get clients to pursue ADA claims and free them from guardianship. A ward of the State of Indiana 30 years, this incapacitated Genius solved the seemingly unsolvable and immediately checked out of this World for a better one. I guess he’s happy now fishing with Jesus. I was devastated until I saw that his work was done once he taught his vision of Freedom Riders and knew the ADA was the solution! It was a rubicks cube to the rest of us! I initially thought of class actions everywhere and families who have suffered deserve to be made whole absolutely but the damages available are $10,000 per day per government official involved x 3 punitive damages plus attorney fees (the problem that created this mess) x 6% interest. My calculator doesn’t go that far but I’m just going to guess it would wipe the United States off the map because our debt is already trillions and Obama ran up 11 trillion and spent more than every President before him to create ObamaCare which pays more to kill you than keep you alive -/ 90% for hospice. do we destroy ourselves to compensate for the harm we caused? Is everyone insane or just stupid? Joking
I have a totally crazy idea that has to work because my life is such a comedy of errors UGGJPPA was enacted in 40 states and allows states (in theory) to reach over other states borders to sell real estate, guardianship wherever you own real estate, creating an incentive to kidnap those with Prime real estate and kill them for it. All to eliminate the hassle for lawyers to get a new bond if they wanted to take their wards to other states or avoid extradition of wards with no writ of the governor. It’s the most illegal frightening statute created by NGA and promoted by the Alzheimer’s Association who must all be incapacitated to be stupid enough to believe they can enact an illegal law that isn’t void. But 40 states have enacted it! Thank God Texas can’t Art 1. Sec 1. US Constitution. Think Trump could use a campaign platform? He could show compassion to Hillary and beat her with kindness!!
Tim Lahrman died yesterday but his memory is going to have such a HUGE impact, his mark on history will blow our minds. I told him this will spread like wildfire when I finally saw his vision. He laughed and sent me a Billy Joel song “We didn’t start the fire.” And I laughed but listening to the song, I noticed Joel mentioned famous people including Einstein. Einstein was his nickname. He used to study cases at the Notre Dame Law Library and was even escorted out once. He was arrested 5 times but once they declared him incompetent, they could not prosecute him because he didn’t have the capacity. He didn’t have the capacity to do anything so he didn’t have the liability for anything. It’s almost like he never existed! The brother that did this to him appeared at the hospital and gave his girlfriend the right to pull the plug but she didn’t have to. Drs said his heart was strong and body like a younger man which was hard to conceive because his childhood sweetheart wrote me and told me he had heart and lung problems for a long time. I asked him if he wanted me to get his capacity restored and he said no which made no sense to me because he had asked me to sue Indiana for $12 million unless he just forgave everyone and realized the odds of getting out of guardianship were nearly impossible, until that day.. 
Res Judicata prevents relitigation of an issue and was deemed to lack capacity to sue. So he could not appeal it. Only his guardian who sold him out had the right but he had a conflict of interest and if Tim was restored he could be sued for violating his civil rights. So I think he had two or three options which he determined were impossible. The federal judge would have had to be impeached, die or resign and Tim had an opportunity to sue under the ADA. He was placed in guardianship in 1987 and the ADA was enacted as the emancipation proclamation of 1990. He could have sued through a federal judge taking the place of the judge who ruled he had no capacity to sue based on changes in the law. There’s no standing bar under the ADA because anyone who has capacity can sue for him and retain counsel by Federal Rule 17c. States have no like provision. The ADA waives immunity so he could sue any private or public entity for discrimination and won. But the State court would still have to determine he had capacity and restore it and Allen County apparently has no record he was in guardianship. So how to you restore if there’s no record he was declared incapacitated. Roe v Wade the Supreme Court held that if an issue is repetitious yet evading review because it would be moot before you could have a court consider it, the Supreme Court could hear a case even though it is moot because he passed away. But let’s say we went to the Supreme Court after 1990 and sued under ADA.. At the end of the day, any money judgment he obtained would not be given to his girlfriend and family of 26 years but his children who abandoned him 15 years ago or possibly escheat to the State because he was a ward of the State. I have not determined who could have collected the judgment because I don’t know Indiana probate law, but I guess he realized that at the end of the day, crooked lawyers who designed this predatory system would consume his estate creating more conflict among family members that he already forgave. Isn’t it despicable that the system purportedly designed to “protect” steals, kills and destroys lives? All for money. The entire estates code is void in Texas and Indiana and I suspect every state in the United States where people are deemed chattel or property of the State who they treat as if they have no rights. It’s a legal fiction because the US Constitution is the supreme law of the land and any state law that violates it is void. An illegal law is a nullify. The scary end result is guardianship (as written) and practiced is illegal and violates basic human rights that we promised in The Hague Convention not to do- war crimes. It’s an International treaty so imagine how we look to the rest of The world. Ghandi said a nation is judged by how it treats its most vulnerable so those with authority and power to change this need to stand up and comply with their oath of office to enforce the constitution and laws of the United States or else they are guilty of treason. I heard from a State Representative that I would be surprised to know how many judges have no oath of office on file. If they don’t every order issued is void. So how bad is our hostage crisis? Leaders who do the right thing and have integrity will go down in history as world changers. Others will ultimately be disgraced when it’s all exposed which is imminent. So thank God for Tim Lahrman who studied the ADA 30 years to teach the intellectuals that their laws are illegal and 18 USC 242 says if a person is kidnapped and harmed and dies because of a conspiracy to deprive a person of civil rights, they get life in prison or the death penalty, appropriate for the suffering they caused. You can’t put a dollar value on human lives but if you could, the damages would 1e11 which is like 500,000,000,000. That’s a conservative estimate. Add 6% interest. Texas would be bankrupt out of existence. The same is true for every state doing this. It makes a lot of sense to enact laws that destroy ourselves doesn’t it? I wrote a memo that was sent to the House Senate AG and Governor entitled “if it ain’t broke don’t fix it” to mock the supposedly intelligent attorneys thinking themselves clever and it’s outrageously funny and sad. I ended saying thank God for the First Amendment because without it we would need the 2nd very fast! I howled when I considered how others might react to it! I plan to write a book about Tim Lahrman, an incapacitated genius and Rik Munson, a saxophone player from California who introduces himself by saying “I smoke a lot of pot” and has filed a perfect Racketeering case in SD Texas after winning a trust opinion in the 5th Circuit. It’s going to be titled “a Mockery of the Court” because they are both going to change this illegal law and fix the mess our representatives created by trying to look busy to justify their position. They need to quit trying to fix things that aren’t broken. My strength has always been I know how to spot experts and pick the best people for the team. I’m not a good litigator and would welcome the chance to write. This is too stressful.
“As you’ve done to the least of these, you’ve done to me”. – Jesus Christ
So we are all guilty but we still have time to fix this!  I love happy endings!!!
Posted by Probate Shark at 6:33 AM 0 comments
Labels: , , , , ,

Friday, July 22, 2016

Families tread carefully through maze of guardianship


    Families tread carefully through maze of guardianship
When elderly Virginians can no longer make decisions for themselves, their families — or the state — must step in.
Print
Font Size:
Default font size
Larger font size
 
Posted: Sunday, July 10, 2016 12:00 am
Families tread carefully through maze of guardianship By Luanne Rife luanne.rife@roanoke.com 981-3209 roanoke.com
“In the United States, all adults are considered legally capable of making decisions regarding their personal and financial affairs unless a court of law determines otherwise.”
— National Association for Court Management, "Adult Guardianship Guide"
This story is about the otherwise.
Bill Lee, a World War II veteran, “worked like a donkey” his entire life. By the time he collapsed alone in his Roanoke County house in 2014, Lee owned $5 million worth of rental homes; vacant lots crammed with cars, trucks and construction equipment; and warehouses stuffed with a lifetime of deal making.
Now at 86, Lee is forbidden by law to step onto any of his properties, including the home he lived in for nearly 50 years, unless his family permits him to do so. Lee signed a legal document several years ago expressing his desire for his family to manage his affairs. Now he thinks they are mismanaging his holdings.
A judge disagrees. And as doctors testified during two days of hearings and through a stack of depositions in two court files, Lee’s brain can no longer process indisputable evidence that runs counter to his beliefs.
Lee dismisses that medical verdict and is appealing the judicial one. He clings to one fact he’s certain is true: This is no way to treat an old man.
Last year, guardians, whether family members or public agencies, directed the lives of 10,356 Virginians. The number of people requiring guardians has increased with each passing year and has risen nearly 50 percent since 2011.
Lee has wealth, though he’s spent more than $100,000 of it on lawyers this year alone, and he has family willing to care for him, though he doesn’t want them to.
Just the opposite can be found a half-hour drive from Lee’s room at the Virginia Veterans Care Center. A handful of elderly patients make their home at Catawba Hospital because they have no place to go, and no money or family to look after their welfare. They need what Lee has but doesn’t want: someone authorized to make decisions for them.
Like Lee, they are no longer capable of managing their own lives. But unlike Lee, they’re paupers, and no one they know is willing to help. So they wait at a psychiatric hospital, long after they are ready for discharge. They’ll stay there until someone dies and frees up a slot in the state’s public guardianship program.
State policymakers say this is no way to treat old people.
Virginia lawmakers agreed in February to spend up to $500,000 to figure out what types of services are needed in the Roanoke and New River valleys so elderly people with dementia and other mental illnesses can live in homes or other community settings rather than at a state psychiatric hospital. Though the study is due in November, the state Department of Behavioral Health and Developmental Services has yet to hire a consultant.
“One of the big issues is for folks who can’t make decisions on their own,” said Catawba CEO Walton Mitchell in an interview earlier this year. “There are not enough guardians to go around.”
What is a guardian?
Whether your net worth is counted in a series of skimpy zeroes or seven fat digits, when a brain illness robs you of your capacity to care for yourself and your affairs — even if you think you still can — a judge may decide who’s the guardian of your health and who’s the conservator of your money.
The same person can fill both roles, especially if an estate is simple.
Guardians and conservators aren’t reserved solely for the elderly. Parents file petitions when their children with intellectual or developmental disabilities become adults so that they can continue to communicate with doctors and teachers and to protect their children’s income from swindlers and debtors. Other families seek limited control of loved ones with relapsing serious mental illnesses so they can more easily compel prompt medical intervention.
Before someone is stripped of his right to be the boss of himself, a guardian ad litem looks at how well he or she functions and recommends to a judge how much authority should be placed in another person’s control.
“When someone is demonstrating any level of cognitive impairment, memory loss, whether it’s actually dementia or a brain injury or mental illness, especially within the context of guardianship actions, we are having to balance the needs and rights of the individuals, but we’re really trying to assess what are their abilities and what abilities are compromised,” said Roanoke attorney Rhona Levine, who is president-elect of the Virginia Academy of Elder Law Attorneys.
“The important issue here is that it’s not all or nothing,” she said. “Very often, especially in the frail elderly, it’s going to be complete.”
At times, the Adult Protective Services Division of the Department for Aging and Rehabilitative Services will recommend that people need guardians, mostly because they no longer can safely care for themselves. Last year, the agency substantiated 10,109 reports of negligence, abuse or exploitation; more than half were due to self-neglect.
Professionals who work with the elderly say that, ideally, people would have the foresight when they’re well to execute legal documents expressing how they wish to be treated if stricken with a brain illness, and their families would harmoniously respect those wishes.
Public guardians
Sometimes no family or friends are willing to serve as guardians, and the person who needs help lacks financial resources.
Nearly 20 years ago, Virginia created a public guardian program to serve this need, which continues to grow. Last year, lawmakers added $500,000 to the budget to care for 100 more people, and for the first time the program reached into every corner of Virginia. The program can serve 706 clients; another 884 people were on a waiting list.
When the program began, Family Service of Roanoke Valley was named to run one of three pilot projects.
“It was a brand new concept back in 1997 that an agency would be a guardian rather than a person,” said Cathy Thompson, who oversees Family Service’s guardianship program. She and her staff serve as guardians for 70 people, placing them in group homes, assisted living facilities or nursing homes, and then coordinating health care and services.
“Most of our clients back then were elderly and in nursing homes. That’s not the case today. We have a lot of younger individuals, and they are not necessarily in nursing homes,” she said. The public guardians play a vital role in moving people of all ages out of the state’s training centers in order to comply with a Justice Department order.
“With all guardian clients, we include them as much as possible in making decisions, whether we show them pictures or have a conversation they will forget in 30 minutes, or misconstrue,” she said. They also try to establish a “values history” to figure out what the client was like before he needed a guardian. This is important when it comes to making decisions for someone else.
Thompson said they seek to substitute their judgment so that it mirrors choices the person would have made, rather than to opt for what they might think is in the person’s best interest.
“We strive for the substitute judgment because that’s including the person in as much as possible,” Thompson said. “They’ve not been awarded a guardian for a happy reason. It’s because they’ve been abandoned or mistreated or had a mental illness or kind of walked off the job. So we always have to be mindful of not assuming what the circumstances were because we truly don’t know.”
For tough decisions, especially those involving end of life, Thompson turns to a team of physicians, attorneys and ethicists.
“I’ve never had anybody we had become guardian over who has an advanced directive,” she said. “To do all that, you have to be mentally stable and competent.”
And, she is always on the lookout for a family member or friend to step into the role.
“Family members in the beginning might be fearful of accepting a guardian role because they think they’ll be financially responsible,” she said. They won’t be. Sometimes someone will step forward, she said. “We also have had families say we don’t want anything to do with this person.”
An ‘extreme case’
Bill Lee is hard of hearing, steadies himself with a cane and is quite capable of conversing, though he rambles often through his life story, which started in Floyd County, through his two marriages and lifelong career that began with buying cars at auctions and evolved into owning rental houses.
Doctors have testified that Lee has an uncommon type of dementia that affects the frontal lobe of his brain. Those with this disease often seem lucid and no more forgetful than any 80-something, and score well on cognitive function tests. The disease causes emotional outbursts, delusions, manic behavior, hyper-sexuality and changes in behavior — conditions Lee’s conservators note in court documents.
Lee thinks that any behavioral changes were due to medication, not illness, and that he’s recovered.
Lee also believes he was on top of his business, running it well, when he fell ill in February 2014. Court records indicate otherwise. He had fallen behind in paying real estate taxes and collecting rents, and code violations had been filed on some properties.
As Lee bounced through hospitals and nursing homes for physical and mental illnesses, his family went to court seeking to manage his health and his business. A few years earlier, Lee had executed a power of attorney ceding such authority to two of his five children. One of his daughters bowed out as his guardian, and another stepped into the role. He readily admits he wanted his current conservator to manage his financial affairs because he thought she was a sharp businesswoman.
But he also claims he changed his mind but became ill before he could sign new documents.
As his health improved, the daughter who serves as his guardian moved him from restrictive care and allowed him freedom to spend his days as he chose as long as he returned to the facilities each evening. His conservators, another daughter and her husband, also permitted him to visit his office and his rental property, but they soon asked the court to bar him as he was interfering and undermining their ability to lease properties and make repairs.
Lee looks at all the years he ran the business with office help from only his late wife and worries that too much money is now going to salaries.
In guardian and conservator cases, a judge appoints a guardian ad litem to represent the person whose rights may be diminished. Lee’s guardian ad litem assessed how well he could function and how dysfunctional some of the family dynamics were. In a report to Roanoke County Judge William Broadhurst, she found Lee no longer had the capacity to manage his affairs and that his conservators were competent substitutes; however, she said, Lee would probably respond better to an independent third party.
The judge kept the family members as permanent co-conservators, and Lee has been battling the decision ever since. He said he doesn’t see bank statements, he has no idea whether any of his cars and equipment have been sold and he’s upset with a new court action that seeks to sell one of his warehouses to the city of Salem for $150,000, a price he views as too low.
He is now asking the Supreme Court of Virginia to review his case and permit him to name new conservators. Their attorney advised them not to discuss the case while it’s still on appeal. Lee’s guardian also said she did not want to talk publicly. Lee’s estate pays all the attorneys’ fees.
“His case is so extreme. It has a lot of elements that we see in other cases. But don’t assume that it’s common to have that extreme of those issues,” Levine said. “Not that we don’t ever see them. But it’s not the norm. That’s why so many people are familiar with the case.”
She does not represent anyone involved in Lee’s case. She does serve on Thompson’s board that oversees the local public guardians, and she represents family members seeking to obtain guardianship or to have the court remove one guardian and replace him or her with another.
“Either the agent is believed to be no longer acting in person’s best interest, like all the money is disappearing from their account, or they’ve parked momma someplace where they haven’t been to visit for a few months,” she said. “It does get messy, and it absolutely gets emotional. ... It’s amazing what goes on in families.”
Often squabbles are resolved when family members refocus.
“Most elder law attorneys will tell you, no matter who they are representing in a guardianship, what they are always looking at is the needs of that elder,” Levine said. “So I might have a client who is looking for a little more for themselves than the elder, and I have to represent my client appropriately, but at least I have the opportunity to say, ‘Let’s look at how this affects dad.’”
Maintaining oversight
Guardian and conservator cases aren’t closed until the person dies. Until then, the judge maintains oversight.
To ensure that people aren’t abused or neglected, guardians must file annual reports with their local social service agency. The documents report the incapacitated person’s health, living arrangements, how often the guardian visits, whether the guardian agrees with current treatment and the need for continued guardianship, along with a compensation request.
Though the Department for Aging and Rehabilitative Services keeps statistics on the number of guardian cases, no one at the state level reviews any reports. This is done within each local social service agency. There is no central repository to determine whether guardians filed as required or whether any report raised concerns. Each social service agency is required to file a list of delinquent reports with the local circuit court.
To ensure that a person’s estate isn’t mismanaged or exploited, conservators must obtain a surety bond, file an inventory of assets within four months with the local commissioner of accounts and then each year provide a detailed accounting of every penny received and spent.
Lee’s conservators file with Furman Whitescarver Jr., who has served as commissioner of accounts for Roanoke County and Salem since 1977. He was appointed by the court after the death of his father, who himself had reviewed every estate since 1925.
Whitescarver handles oversight for about 700 estates each year; most are reviews of accounts for people who have died, while a few are for people like Lee.
“Sometimes they run down to no money coming in other than Social Security, and the person is in the nursing home, so we get them to be the designated payee, zero out the estate and there is no more conservator,” he said. “Otherwise, as long as there is money or other assets to be looked after, they need to file with me.”
Whitescarver said Lee has visited his office, but he’s asked him to leave since his only involvement in the case is to ensure the conservators file a complete accounting of the estate. In every case, he requests bank records and information documenting each transaction — for example, a deposit for rent needs to specify for which property.
Once he is satisfied, Whitescarver said, he files a report with the circuit court.
Lee’s estate is more complex than most. “It takes a long time for us to audit something like this,” he said. “They do have a CPA helping them, but these things drag out.”
Whitescarver said he rarely finds irregularities.
“On several occasions I’ve been concerned about how the money’s handled and have the commonwealth’s attorney in there when I go to see the judge. Thank goodness it’s rare,” he said. Usually, “they’ve not mishandled the money, but mishandled the paperwork and have a hard time proving it. All the sudden something easy becomes a nightmare.”
Protecting the vulnerable
Lee is upset that he’s been stripped of his rights to manage his business and view his monthly statements.
“I need to see my banking accounts. They’re keeping all the records from me,” he said. “What I’m trying to prove to you is I need to get out of here and get this stuff taken care of before I lose everything.”
Lee’s physical possessions are reduced to what fits inside his bedroom at the Virginia Veterans Care Center: clothes, boxes of legal documents and a flip phone to call everyone and anyone who might help him. He longs to touch his belongings and regain control of his life.
“When dealing with guardianship, it’s good for everyone to remember the overview is to protect people, not to settle inter-family disputes, even though we end up having to do that a lot,” Levine said. “The focus is on protecting our compromised elders or special needs population — even if they don’t think they need it.”
Lee certainly doesn’t think he needs it. Though his battle is extreme, elements of his case crop up in others.
“My first guardianship was contested. After the family was appointed, they said, ‘How do we get her to the nursing home?’ I said, ‘You take her.’ They said she wouldn’t go,” Levine recalled. “I said, ‘This gives you power and authority. It does not cause her to magically deport to the facility.’”
Guardians still need to figure out how to persuade their wards to agree to the level of care they’d choose, if they were well enough to decide on their own.

More about

More about

   

Posted: Sunday, July 10, 2016 12:00 am
Families tread carefully through maze of guardianship By Luanne Rife luanne.rife@roanoke.com 981-3209 roanoke.com
“In the United States, all adults are considered legally capable of making decisions regarding their personal and financial affairs unless a court of law determines otherwise.”
— National Association for Court Management, "Adult Guardianship Guide"
This story is about the otherwise.
Bill Lee, a World War II veteran, “worked like a donkey” his entire life. By the time he collapsed alone in his Roanoke County house in 2014, Lee owned $5 million worth of rental homes; vacant lots crammed with cars, trucks and construction equipment; and warehouses stuffed with a lifetime of deal making.
Now at 86, Lee is forbidden by law to step onto any of his properties, including the home he lived in for nearly 50 years, unless his family permits him to do so. Lee signed a legal document several years ago expressing his desire for his family to manage his affairs. Now he thinks they are mismanaging his holdings.
A judge disagrees. And as doctors testified during two days of hearings and through a stack of depositions in two court files, Lee’s brain can no longer process indisputable evidence that runs counter to his beliefs.
Lee dismisses that medical verdict and is appealing the judicial one. He clings to one fact he’s certain is true: This is no way to treat an old man.
Last year, guardians, whether family members or public agencies, directed the lives of 10,356 Virginians. The number of people requiring guardians has increased with each passing year and has risen nearly 50 percent since 2011.
Lee has wealth, though he’s spent more than $100,000 of it on lawyers this year alone, and he has family willing to care for him, though he doesn’t want them to.
Just the opposite can be found a half-hour drive from Lee’s room at the Virginia Veterans Care Center. A handful of elderly patients make their home at Catawba Hospital because they have no place to go, and no money or family to look after their welfare. They need what Lee has but doesn’t want: someone authorized to make decisions for them.
Like Lee, they are no longer capable of managing their own lives. But unlike Lee, they’re paupers, and no one they know is willing to help. So they wait at a psychiatric hospital, long after they are ready for discharge. They’ll stay there until someone dies and frees up a slot in the state’s public guardianship program.
State policymakers say this is no way to treat old people.
Virginia lawmakers agreed in February to spend up to $500,000 to figure out what types of services are needed in the Roanoke and New River valleys so elderly people with dementia and other mental illnesses can live in homes or other community settings rather than at a state psychiatric hospital. Though the study is due in November, the state Department of Behavioral Health and Developmental Services has yet to hire a consultant.
“One of the big issues is for folks who can’t make decisions on their own,” said Catawba CEO Walton Mitchell in an interview earlier this year. “There are not enough guardians to go around.”
What is a guardian?
Whether your net worth is counted in a series of skimpy zeroes or seven fat digits, when a brain illness robs you of your capacity to care for yourself and your affairs — even if you think you still can — a judge may decide who’s the guardian of your health and who’s the conservator of your money.
The same person can fill both roles, especially if an estate is simple.
Guardians and conservators aren’t reserved solely for the elderly. Parents file petitions when their children with intellectual or developmental disabilities become adults so that they can continue to communicate with doctors and teachers and to protect their children’s income from swindlers and debtors. Other families seek limited control of loved ones with relapsing serious mental illnesses so they can more easily compel prompt medical intervention.
Before someone is stripped of his right to be the boss of himself, a guardian ad litem looks at how well he or she functions and recommends to a judge how much authority should be placed in another person’s control.
“When someone is demonstrating any level of cognitive impairment, memory loss, whether it’s actually dementia or a brain injury or mental illness, especially within the context of guardianship actions, we are having to balance the needs and rights of the individuals, but we’re really trying to assess what are their abilities and what abilities are compromised,” said Roanoke attorney Rhona Levine, who is president-elect of the Virginia Academy of Elder Law Attorneys.
“The important issue here is that it’s not all or nothing,” she said. “Very often, especially in the frail elderly, it’s going to be complete.”
At times, the Adult Protective Services Division of the Department for Aging and Rehabilitative Services will recommend that people need guardians, mostly because they no longer can safely care for themselves. Last year, the agency substantiated 10,109 reports of negligence, abuse or exploitation; more than half were due to self-neglect.
Professionals who work with the elderly say that, ideally, people would have the foresight when they’re well to execute legal documents expressing how they wish to be treated if stricken with a brain illness, and their families would harmoniously respect those wishes.
Public guardians
Sometimes no family or friends are willing to serve as guardians, and the person who needs help lacks financial resources.
Nearly 20 years ago, Virginia created a public guardian program to serve this need, which continues to grow. Last year, lawmakers added $500,000 to the budget to care for 100 more people, and for the first time the program reached into every corner of Virginia. The program can serve 706 clients; another 884 people were on a waiting list.
When the program began, Family Service of Roanoke Valley was named to run one of three pilot projects.
“It was a brand new concept back in 1997 that an agency would be a guardian rather than a person,” said Cathy Thompson, who oversees Family Service’s guardianship program. She and her staff serve as guardians for 70 people, placing them in group homes, assisted living facilities or nursing homes, and then coordinating health care and services.
“Most of our clients back then were elderly and in nursing homes. That’s not the case today. We have a lot of younger individuals, and they are not necessarily in nursing homes,” she said. The public guardians play a vital role in moving people of all ages out of the state’s training centers in order to comply with a Justice Department order.
“With all guardian clients, we include them as much as possible in making decisions, whether we show them pictures or have a conversation they will forget in 30 minutes, or misconstrue,” she said. They also try to establish a “values history” to figure out what the client was like before he needed a guardian. This is important when it comes to making decisions for someone else.
Thompson said they seek to substitute their judgment so that it mirrors choices the person would have made, rather than to opt for what they might think is in the person’s best interest.
“We strive for the substitute judgment because that’s including the person in as much as possible,” Thompson said. “They’ve not been awarded a guardian for a happy reason. It’s because they’ve been abandoned or mistreated or had a mental illness or kind of walked off the job. So we always have to be mindful of not assuming what the circumstances were because we truly don’t know.”
For tough decisions, especially those involving end of life, Thompson turns to a team of physicians, attorneys and ethicists.
“I’ve never had anybody we had become guardian over who has an advanced directive,” she said. “To do all that, you have to be mentally stable and competent.”
And, she is always on the lookout for a family member or friend to step into the role.
“Family members in the beginning might be fearful of accepting a guardian role because they think they’ll be financially responsible,” she said. They won’t be. Sometimes someone will step forward, she said. “We also have had families say we don’t want anything to do with this person.”
An ‘extreme case’
Bill Lee is hard of hearing, steadies himself with a cane and is quite capable of conversing, though he rambles often through his life story, which started in Floyd County, through his two marriages and lifelong career that began with buying cars at auctions and evolved into owning rental houses.
Doctors have testified that Lee has an uncommon type of dementia that affects the frontal lobe of his brain. Those with this disease often seem lucid and no more forgetful than any 80-something, and score well on cognitive function tests. The disease causes emotional outbursts, delusions, manic behavior, hyper-sexuality and changes in behavior — conditions Lee’s conservators note in court documents.
Lee thinks that any behavioral changes were due to medication, not illness, and that he’s recovered.
Lee also believes he was on top of his business, running it well, when he fell ill in February 2014. Court records indicate otherwise. He had fallen behind in paying real estate taxes and collecting rents, and code violations had been filed on some properties.
As Lee bounced through hospitals and nursing homes for physical and mental illnesses, his family went to court seeking to manage his health and his business. A few years earlier, Lee had executed a power of attorney ceding such authority to two of his five children. One of his daughters bowed out as his guardian, and another stepped into the role. He readily admits he wanted his current conservator to manage his financial affairs because he thought she was a sharp businesswoman.
But he also claims he changed his mind but became ill before he could sign new documents.
As his health improved, the daughter who serves as his guardian moved him from restrictive care and allowed him freedom to spend his days as he chose as long as he returned to the facilities each evening. His conservators, another daughter and her husband, also permitted him to visit his office and his rental property, but they soon asked the court to bar him as he was interfering and undermining their ability to lease properties and make repairs.
Lee looks at all the years he ran the business with office help from only his late wife and worries that too much money is now going to salaries.
In guardian and conservator cases, a judge appoints a guardian ad litem to represent the person whose rights may be diminished. Lee’s guardian ad litem assessed how well he could function and how dysfunctional some of the family dynamics were. In a report to Roanoke County Judge William Broadhurst, she found Lee no longer had the capacity to manage his affairs and that his conservators were competent substitutes; however, she said, Lee would probably respond better to an independent third party.
The judge kept the family members as permanent co-conservators, and Lee has been battling the decision ever since. He said he doesn’t see bank statements, he has no idea whether any of his cars and equipment have been sold and he’s upset with a new court action that seeks to sell one of his warehouses to the city of Salem for $150,000, a price he views as too low.
He is now asking the Supreme Court of Virginia to review his case and permit him to name new conservators. Their attorney advised them not to discuss the case while it’s still on appeal. Lee’s guardian also said she did not want to talk publicly. Lee’s estate pays all the attorneys’ fees.
“His case is so extreme. It has a lot of elements that we see in other cases. But don’t assume that it’s common to have that extreme of those issues,” Levine said. “Not that we don’t ever see them. But it’s not the norm. That’s why so many people are familiar with the case.”
She does not represent anyone involved in Lee’s case. She does serve on Thompson’s board that oversees the local public guardians, and she represents family members seeking to obtain guardianship or to have the court remove one guardian and replace him or her with another.
“Either the agent is believed to be no longer acting in person’s best interest, like all the money is disappearing from their account, or they’ve parked momma someplace where they haven’t been to visit for a few months,” she said. “It does get messy, and it absolutely gets emotional. ... It’s amazing what goes on in families.”
Often squabbles are resolved when family members refocus.
“Most elder law attorneys will tell you, no matter who they are representing in a guardianship, what they are always looking at is the needs of that elder,” Levine said. “So I might have a client who is looking for a little more for themselves than the elder, and I have to represent my client appropriately, but at least I have the opportunity to say, ‘Let’s look at how this affects dad.’”
Maintaining oversight
Guardian and conservator cases aren’t closed until the person dies. Until then, the judge maintains oversight.
To ensure that people aren’t abused or neglected, guardians must file annual reports with their local social service agency. The documents report the incapacitated person’s health, living arrangements, how often the guardian visits, whether the guardian agrees with current treatment and the need for continued guardianship, along with a compensation request.
Though the Department for Aging and Rehabilitative Services keeps statistics on the number of guardian cases, no one at the state level reviews any reports. This is done within each local social service agency. There is no central repository to determine whether guardians filed as required or whether any report raised concerns. Each social service agency is required to file a list of delinquent reports with the local circuit court.
To ensure that a person’s estate isn’t mismanaged or exploited, conservators must obtain a surety bond, file an inventory of assets within four months with the local commissioner of accounts and then each year provide a detailed accounting of every penny received and spent.
Lee’s conservators file with Furman Whitescarver Jr., who has served as commissioner of accounts for Roanoke County and Salem since 1977. He was appointed by the court after the death of his father, who himself had reviewed every estate since 1925.
Whitescarver handles oversight for about 700 estates each year; most are reviews of accounts for people who have died, while a few are for people like Lee.
“Sometimes they run down to no money coming in other than Social Security, and the person is in the nursing home, so we get them to be the designated payee, zero out the estate and there is no more conservator,” he said. “Otherwise, as long as there is money or other assets to be looked after, they need to file with me.”
Whitescarver said Lee has visited his office, but he’s asked him to leave since his only involvement in the case is to ensure the conservators file a complete accounting of the estate. In every case, he requests bank records and information documenting each transaction — for example, a deposit for rent needs to specify for which property.
Once he is satisfied, Whitescarver said, he files a report with the circuit court.
Lee’s estate is more complex than most. “It takes a long time for us to audit something like this,” he said. “They do have a CPA helping them, but these things drag out.”
Whitescarver said he rarely finds irregularities.
“On several occasions I’ve been concerned about how the money’s handled and have the commonwealth’s attorney in there when I go to see the judge. Thank goodness it’s rare,” he said. Usually, “they’ve not mishandled the money, but mishandled the paperwork and have a hard time proving it. All the sudden something easy becomes a nightmare.”
Protecting the vulnerable
Lee is upset that he’s been stripped of his rights to manage his business and view his monthly statements.
“I need to see my banking accounts. They’re keeping all the records from me,” he said. “What I’m trying to prove to you is I need to get out of here and get this stuff taken care of before I lose everything.”
Lee’s physical possessions are reduced to what fits inside his bedroom at the Virginia Veterans Care Center: clothes, boxes of legal documents and a flip phone to call everyone and anyone who might help him. He longs to touch his belongings and regain control of his life.
“When dealing with guardianship, it’s good for everyone to remember the overview is to protect people, not to settle inter-family disputes, even though we end up having to do that a lot,” Levine said. “The focus is on protecting our compromised elders or special needs population — even if they don’t think they need it.”
Lee certainly doesn’t think he needs it. Though his battle is extreme, elements of his case crop up in others.
“My first guardianship was contested. After the family was appointed, they said, ‘How do we get her to the nursing home?’ I said, ‘You take her.’ They said she wouldn’t go,” Levine recalled. “I said, ‘This gives you power and authority. It does not cause her to magically deport to the facility.’”
Guardians still need to figure out how to persuade their wards to agree to the level of care they’d choose, if they were well enough to decide on their own.

More about

More about

Posted by Probate Shark at 6:01 AM 0 comments
Labels: ,
Subscribe to: Posts (Atom)