Archive for May, 2011

>Guardian System Flaws Allow For Exploitation

May 31, 2011

>A nonpartisan federal report released in the fall warned of flaws in the guardianship system that leave vulnerable people open to exploitation similar to that detailed in a criminal complaint against an Appleton man accused of stealing hundreds of thousands of dollars from clients.

The report from the Government Accountability Board is the latest to raise a red flag about the system. A 2007 study released by U.S. Sens. Herb Kohl, D-Milwaukee, and Gordon H. Smith, R-Ore., suggested improvements to safeguard people who rely on guardians, and a 2006 report by the AARP Public Policy Institute cautioned that checks on guardians were lax.

Jeffrey M. Schend, who owns the company Outagamie County hired to serve as guardian for 48 people, hasn’t told investigators where about $500,000 went after disappearing from some clients’ accounts. But there were signs Schend wasn’t properly reporting financial transactions, including a $4,700 judgment Shawano County won against him in 2010 for his mishandling of a client’s account.

Sylvia Rudek, a director of the National Association to Stop Guardian Abuse, says Wisconsin’s system is weighted so heavily in favor of confidentiality that it prevents adequate oversight of guardians, who are hired mostly by counties after a court has determined a person cannot make safe and sound financial decisions. Most of the people represented by guardians are mentally ill, disabled or elderly.

Rudek said she ran into roadblock after roadblock after learning that a guardian had stolen more than $78,000 from her great-aunt, a Wisconsin resident. Though the guardian, Kathleen Simane, ultimately was sentenced to two years in prison on two theft convictions by a Rock County judge, Rudek said getting the case into the criminal justice system took Herculean efforts.

“We had no idea of what was going on,” Rudek said. “I couldn’t get any information.”

In many states, she said, families can examine a guardian’s books, but Wisconsin keeps those records sealed.

“The legislators will tell you the files are closed to protect the ward,” she said, using a term often applied to a person represented by a guardian. “In reality, closed files protect the guardian team from oversight.”

The report released in September by the federal Government Accountability Office backs up Rudek’s contention that guardians are not properly supervised.

Full Article and Source:
Study: Guardian System Flaws Allow for Exploitation

See Also:
Read the GAO’s (Government Accountability Office)report: GUARDIANSHIPS – Cases of Financial Exploitation, Neglect and Abuse of Seniors

Court Wants Proof of Jeffrey Schend’s Inability to Pay Lawyer

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>’Guardianship Abuse’

May 31, 2011

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Source:
KidnappingTheElderly

>Memorial Day Thought

May 30, 2011

>Memorial Day is a day of remembrance for those who have died in our nation’s service.

It is a sad state of events when we learn that many disabled veterans are kept in miserable circumstances while under the control of a guardian, whether under the VA guardian program, or through our own state courts.

See:
NASGA: Veterans in Peril

HelpBringGaryHome

Instead of Helping, VA Trustee Program is Hurting, Families Say

>CT Legislation Review

May 30, 2011

>The 2011 Legislative Session is winding down and along the way a number of bills that could dramatically improve the care of elderly citizens while simultaneously decreasing the costs of that care are up for consideration.

The State Commission on Aging has taken a proactive stance on several bills among which is Senate Bill 1185: An Act Concerning State Payments to Nursing Homes and the Duties of Nursing Home Receivers.

Julia Evans Starr, Executive Director of the Commission on Aging commented during a public hearing on this bill that the Commission on Aging “the Long-Term Care Advisory Council and others have recommended this initiative as a key component to rebalancing our state’s long-term care system, while helping nursing homes maintain and retain financial viability.

“Rebalancing” our long-term care system means shifting the balance between the amount of people receiving services in institutions versus community settings. Currently, our state spends about 65% of its Medicaid long-term care dollars on institutional care, like nursing homes – about $1.6 billion annually. Our dollars stretch further when providing home- and community-based care: while only 35% of the dollars goes to community-based care, we serve 53% of the people that way.

According to Connecticut’s 2010 State Long-Term Care Plan, rebalancing the system will cost our state $900 million less in 2025 than leaving the balance as-is.

But, rebalancing is not just about dollars and cents. It’s about choice, independence, dignity – and the law.

Importantly, the experts indicate that if we achieve the rebalancing goals set in the state’s Long-Term Care Plan, we can actually reduce the number of nursing home beds we need in 2030 by 25%.

Full Article and Source:
Granny-Snatching: Legislation and Jail Time

>Huguette Clark’s Will: Who Will Get Her Fortune?

May 29, 2011

>The reclusive copper heiress died on Tuesday in the Manhattan hospital she’s been calling home, leaving people to wonder about the fate of her estimated $500 million fortune.

With questions about her mental health and an ongoing investigation into the attorney and accountant that have been handling her affairs, the answer to the above question can mean the difference between a drawn out court battle and a quiet ending.
Huguette Clark came back into the limelight last year after media began inquiring about her self-imposed isolation. She had been living in different hospitals for years despite owning palatial homes and employing a staff of aides.

About six years ago, her family members, who had continued contact with the heiress, were cut off at the behest of her attorney, Wallace Bock, reports MSNBC. They were also denied access to her funeral on Thursday.

In light of such suspicious activity, Manhattan prosecutors have been investigating whether Bock and Clark’s accountant have been mismanaging her affairs, notes The New York Times.

This investigation is incredibly important for the fate of Huguette Clark’s will.

If a decedent is not competent–or lucid–at the time that a will is created, it is unenforceable. The same goes for when she is improperly influenced by third parties.

There is evidence that both of these things may have occurred with respect to Huguette Clark’s will. In October, prosecutors found Clark to be “not lucid” and found evidence that she had donated millions of dollars to Wallace Bock and his family, which is considered unethical conduct for lawyers in most states.

Source:
Huguette Clark’s Will: Who Will Get Her Fortune?

>Senator Nelson’s Bills on Way to Governor’s Desk

May 29, 2011

>Several bills authored by Senator Jane Nelson, R-Flower Mound, are on track to reach the governor’s desk. The 82nd Regular Session of the Texas Legislature adjourns on May 30.

SB 221 strengthens protections against the exploitation of seniors and ensures that law enforcement is notified if a client’s home may be left vacant due to the client being removed under a protective order.

SB 220 increases protections of wards in guardianship and make it easier for families to navigate the guardianship system. “These reforms will protect the civil liberties of persons who come under the state guardianship system and help family members understand and follow the process.”

Full Article and Source:
Nelson’s Bills on Way to Governor’s Desk

>Court Wants Proof of Jeffrey Schend’s Inability to Afford Lawyer

May 28, 2011

>A former guardian accused of stealing hundreds of thousands of dollars from elderly and disabled clients said a boat, car and about $1,000 he can no longer access are his only assets.

A court commissioner, however, said Thursday she needed more proof before determining whether Outagamie County would pay up front for an attorney to represent Jeffrey M. Schend on seven theft charges.

“I guess I’m not convinced this is a full accounting,” Court Commissioner Maureen Roberts Budiac told Schend, 44, during a hearing to determine whether the county should pay for his attorney.

Schend was charged this month with six felony counts of theft and a misdemeanor after he was unable to account for about $500,000 in transactions from his clients’ accounts. He didn’t qualify for a free public defender, but says he can’t afford to hire a lawyer.

Investigators have said they continue to pore over the records of Schend’s clients.

He remains in jail on a $100,000 cash bond. He’ll appear in court June 15 for a preliminary hearing, where prosecutors will have to show evidence is sufficient to maintain the felony charges.

Full Article and Source:
Court Asks Jeffrey Schend for More Information Before Deciding Whether to Appoint Attorney

See Also:
Jeffrey Schend Says He Can’t Afford Attorney

>Judge Speaks Out Against Record Sealing

May 28, 2011

>A Dauphin County trial judge has come down hard against the practice of sealing judicial records, calling it “unconstitutional” and an “invitation to secrecy and, potentially, abuse.”

In a strongly worded four-page opinion filed April 19 in Gebhardt v. Woods , Judge Lawrence F. Clark denied plaintiff Stephen Gebhardt’s motion to seal all pleadings, motions and replies, saying a litigant’s desire to preserve his or her privacy in a case is no excuse for a court to deprive the public access to judicial records.

“In the past, the courts have summarily sealed records,” Clark said. “It was unconstitutional then and it is unconstitutional today.”

Robert C. Clothier, co-chair of Philadelphia-based Fox Rothschild’s media, defamation and privacy law practice, said Clark’s opinion is, on the one hand, unremarkable since it’s been well-established that a party’s desire to keep information private is not enough to warrant the sealing of a judicial record.

What is noteworthy, Clothier said, is “the heartfelt way in which he articulated the policies underlying openness.”

“That’s what’s remarkable and heartening to see: how strongly the judge here conveys the importance of openness in the courts,” he said.

Clark said the public has an “extremely broad” right of access to court records.

“Obviously, in modern times there has been a grand impetus toward the accessibility of public information,” Clark said. “Furthermore, it is not a sufficient basis to seal a record just because the parties agree amongst themselves that it would be in their best interests to seal part or all of the record.”

Clark said doing so would rob Pennsylvania citizens of “their fundamental constitutional right to access such information.”

According to Clark, judges have a duty to uphold this right and to maintain transparency, even if it means doing so at the expense of the parties involved in the case.

“Every judicial officer from the newest magisterial district judge to the chief justice of the Supreme Court takes the same oath of office before commencing their duties, which oath binds them to ‘support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity,'” he said, citing Article VI, Section 3 of the Pennsylvania Constitution.

Full Article and Source:
Dauphin Co. Judge Speaks Out Against Document Sealing

>’Open Court’

May 28, 2011

>It is a fundamental principle of the United States legal system that courts should be open to the public. This principle is widely regarded as more aspirational than factual, because of numerous practical barriers to courtroom access — not the least of which is that most of us do not have the time or ability to travel to the court to witness proceedings in person. While the news media report on judicial proceedings, their resources are limited; as a result, coverage is normally focused on specific cases of particular interest. Moreover, audiovisual recording of judicial activity is sporadic due to a complicated patchwork of largely discretionary rules about allowing cameras in the courtroom.

OpenCourt, an experimental project launched on May 2, 2011, by WBUR, Boston’s NPR news station, seeks to change all of that. With the cooperation of the Massachusetts Supreme Judicial Court (the highest court in the Commonwealth) and the Massachusetts District Court (a department of the Massachusetts Trial Court), the OpenCourt project has started streaming live video and audio of the proceedings in the First Session of Quincy District Court. OpenCourt also provides WiFi access to journalists and bloggers so that they can report live from the courtroom.

The goal of the OpenCourt project is to develop a set of standards and best practices for live access to the courts that can be replicated in courtrooms around the country.

Full Article and Source:
Announcing OpenCourt

>Arizona Attorney Grant Goodman Sanctioned

May 27, 2011

>Grant Goodman, a local attorney who became a private version of former Maricopa County Attorney Andrew Thomas by filing a series of failed so-called racketeering lawsuits against court-appointed guardians, conservators, lawyers and judges, is in very hot water.

Superior Court Judge Peter Cahill (from Gila County) issued the latest in a series of hefty financial sanctions against Goodman in a stinging 15-page ruling in an action against the sole practitioner by a large group of litigants, including a now-closed private fiduciary firm, Superior Court judges and several attorneys.

At one point, Goodman claimed that the shuttered fiduciary firm, the Sun Valley Group, in cahoots with Superior Court Judges and a cabal of greedy attorneys, was ripping off adults deemed “incapacitated” by the court for everything they had.

Judges often appoint private fiduciaries to help with all aspects of a clients’s life, and Goodman’s representation of those vulnerable people was marked by half-baked legal assaults and inane in-court verbal exchanges with judges and opposing counsel.

“Claims that the [clients] did not receive what they deserved–that, instead, scoundrels (`Racketeers,’ as Mr. Goodman calls them) took advantage of them and stole all their property are serious,” Judge Cahill wrote in his ruling, which was issued yesterday afternoon.

But the judge noted that Goodman never did file any paperwork to show his clients were entitled to legal relief, writing that “Alfred Dreyfus surely would have died on Devil’s Island if Goodman had been his `[Emile] Zola.'” (Great literary reference there–check it out by linking to Zola.)

Cahill added about another $200,000 in legal sanctions against Goodman to the $24 million that the litigious little guy already is on the hook for. However, he suggested that, based on past behavior, “the court believes it is quite likely that these financial sanctions will mean nothing to Mr. Goodman.”

The out-of-town judge, who was asked to sit on the Goodman case because of conflicts-of-interest in Maricopa County, wrote that “it is reasonably likely–actually it is a certainty–that Mr. Goodman will victimize others.

Cahill recommended that Maricopa County’s presiding judge Norm Davis hold a hearing, after which Davis deem Goodman a “vexatious litigant,” (vexatious denoting “an action or the bringer of an action that is brought without sufficient grounds for winning, purely to cause annoyance to the defendant”).

If Judge Davis does so, Goodman would have to file any and all complaints with Davis himself for review and possibly immediate dismissal. Any defendants of a Goodman lawsuit wouldn’t have to respond until the judge gave the go-ahead.

Cahill wrote that “Mr. Goodman’s conduct–the manner in which he has handled these important matters–has brought discredit to the profession and the courts. In addition, his conduct caused significant harm to the litigants.”

Full Article and Source:
Grant Goodman, Gadfly Phoenix Attorney, Sanctioned Heavily in Probate Cases