Grabbing the Purse

Dorothy Luck was enjoying the fruits of a lifetime of hard work: a well-cared-for house, a good-running Cadillac Deville, a million dollars in a bank account, another million in annuities, and a monthly income from investments and Social Security. A widow with no children or close relatives, she remains active and relatively healthy at 85.

Her comfortable lifestyle was made possible by various investments created with her husband, Leskie, who died 20 years ago. The couple co-owned and operated Luck Field, a general aviation airport that opened in 1960 in South Fort Worth, offering a landing strip and hangar rentals for 40 years, until it closed in 2000.

Shyness isn’t a problem. Luck dominates conversations, doesn’t suffer fools gladly, and can be a pistol when riled. She’s also softhearted. Her church gets 10 percent of every dollar, and Luck gives additional money to charities and friends in need.

The neat and still-elegant woman has always kept a close watch on her finances, and she believed she’d have plenty of money to last until the end of her life.

“I was very wealthy,” she said. “Now they’ve stripped me of about everything I have.”

The people stripping away her wealth aren’t con artists, muggers, or thieves, although the end result looks the same. “They” are a judge and court-appointed lawyers involved in a probate system that deemed Luck to be mentally incapaci-tated and unable to handle her affairs.

Two years ago they took control of her money and her life. She’s been writhing in the court system ever since, trying to regain control of her bank account, which has become at least $500,000 lighter since the court took over.

“I’ve worked since I was 15 years old, and I don’t deserve this,” Luck said. “It’s going to kill me. It’s aged me terribly.”

Texas, unlike most states, allows its judges to initiate guardianship cases. If a defendant in a civil lawsuit refuses to settle, a Texas probate judge can say, “I think you’re mentally incapacitated.” Then that same judge can remove the defendant’s right to hire an independent attorney and use court-appointed attorneys to settle the case in a closed hearing without the defendant’s input.

Don’t believe it?

Luck wouldn’t have believed it either. Until it happened to her.

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Grabbing the Purse

Former attorney indicted on felony charges

A former Upper Arlington lawyer faces a range of charges for allegedly forging documents and collecting death benefits intended for a minor child.

Lindsey T. Burt, 33, of Berwyn Road, was indicted Aug. 27 on felony charges of theft, forgery, tampering with records and money-laundering.

As of ThisWeek Upper Arlington News‘ press time, Burt was slated to appear in Franklin County Common Pleas Court Sept. 11 for arraignment.

The county prosecutor’s office alleges Burt altered documents that were supposed to make Mark Chapa of Texas the legal guardian of his son, a minor who lived in Franklin County and whose mother had died.

Franklin County Prosecutor Ron O’Brien said Burt arranged to collect the woman’s Ohio Public Employees Retirement System (OPERS) death benefits, which were intended to go to the woman’s son.

“(Burt) altered documents to make herself guardian … and to designate the money go into an account controlled by her,” O’Brien said. “She told the natural father she had to be guardian to collect the benefits for him.

“She periodically sent money to (Mark) Chapa in Texas to kind of keep him at bay. She periodically sent him money, but it was not much.”

According to the prosecutor’s office, the criminal activity occurred between April 18, 2008, and April 19, 2013.

During that time, Burt allegedly collected $67,183 from OPERS, but turned over only around $12,000 to the boy’s father.

Burt’s attorney, Bradley Koffel, said Aug. 30 he hadn’t seen the prosecution’s allegations against his client, but added Burt would plead not guilty at the arraignment.

“We need time to digest what the accusations are and have an opportunity to see what the claims are and try to understand them ourselves,” Koffel said. “Lindsey is deeply surprised by these allegations.”

Full Article and Source:
Former attorney indicted on felony charges

Couple charged with elderly exploitation

GRAHAM – Detectives arrested a Graham couple Wednesday for allegedly exploiting an elderly relative.
 

According to the Alamance County Sheriff’s Office, corporate security investigators with SunTrust Bank contacted detectives with the Financial Crimes Unit of the Alamance County Sheriff’s Office on Aug. 16 because they were concerned about an $18,000 check written on the account of Louise Brown.

 

The check wasn’t honored because the bank was concerned it was forged, and the sheriff’s office began an investigation. Investigators found that over the period of three months, beginning in June, more than $22,000 had been taken from Brown’s account.

 

The investigation led to the arrest of Brown’s great-nephew, Michael Troy Shoffner, and his girlfriend, Sandra Lynn Johnson, both of 2444 N.C. 87 South, Graham.

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Couple charged with elderly exploitation

NJ guardian laws leave Toms River man fighting to regain freedom

The Bill of Rights no longer applies to Ken Schmidt.

He can’t vote, sign a lease, get married or open a bank account.

Schmidt, 74, had many of his civil rights stripped away after he fell and hit his head outside his Toms River home in January 2012. A judge declared him to be mentally incapacitated, and ordered the state Public Guardian to take charge of his assets and medical care under New Jersey’s guardian laws.

With one false step, Schmidt, a retired insurance salesman, plunged headlong into a bureaucratic system he hasn’t been able to climb back out of, even though he says he fully recovered a year ago. He walks under his own power, writes coherently in a clear, steady hand, enjoys James Patterson thrillers, and is conversant in such wide-ranging topics as the A-Rod steroid scandal, Obamacare and the recent bloodshed in Egypt.

Yet until a judge says otherwise, Schmidt can’t even receive his own mail. Nor can he leave the $5,000-a-month assisted-living facility the state placed him in more than a year ago, and return home to the Toms River townhouse he owns, mortgage-free, just six miles away.

“I never wanted this. I never asked for this. They just buried me here,” he told the Asbury Park Press.

“I want life, liberty and the pursuit of happiness,” he said. “I want my life back, first and foremost … but nobody seems to care.”

Little public scrutiny

Schmidt’s predicament is a cautionary tale of how quickly someone’s civil rights and life savings can be swept away, and just how difficult it can be to get a judgment of incapacity lifted.

In addition to his home, Schmidt had more than $65,000 in the bank prior to his accident. He said the care manager assigned to him by the Office of the Public Guardian has told him that those funds have been exhausted paying for his care.

“ ‘It’s all gone.’ That’s their classic answer: ‘I’m sorry, it’s all gone.’ And they won’t give me anything in writing,” Schmidt said. “Everything’s just disappeared.”

The state’s guardianship system is a critical safety net for tens of thousands of disabled and vulnerable individuals.

But the system is shrouded in secrecy. Court documents in guardianship cases aren’t public records, the identities of wards and their guardians aren’t publicly disclosed and no one keeps track of how many active guardianship cases there are statewide.

All guardians, except for the Public Guardian, are required to file an annual update on the incapacitated person’s condition and care, and an accounting of how the person’s assets are being spent. In Schmidt’s case, the Public Guardian, a post currently held on an acting basis by Helen C. Dodick, doesn’t have to account for how his money was spent until he dies, according to the judge’s order.

Meanwhile, privacy rules prohibit the Office of the Public Guardian from commenting on Schmidt’s case. An agency spokeswoman said Schmidt could sign a release to waive his privacy rights, but because he’s still legally considered to be incapacitated, he can’t sign anything, at least not without his guardian’s permission.

“I have no rights. I’m not allowed to do anything,” Schmidt complained.

“The state has too much power. I know that they are helping people, and people do need help,” he said. “(But) they just assumed I wouldn’t rehabilitate.”

Rare to get out

It’s the rare person who tries to get out from under a guardianship, which requires the filing of a petition in state Superior Court.

In the vast majority of guardianship cases, the incapacitated person has progressive dementia that only worsens over time. Jeffrey M. Moran, the Ocean County surrogate, says his office typically handles no more than two or three requests a year from wards or their guardians to dissolve a guardianship.

The process requires affidavits from two doctors, or a doctor and a psychologist, attesting that the person has sufficiently recovered to have his personal rights restored.

Without the cooperation of their guardians or families, however, wards like Schmidt are at a distinct disadvantage.

“There are significant impediments to regaining your rights,” said Point Pleasant attorney Robert F. Brogan, past president of the New Jersey chapter of the National Academy of Elder Law Attorneys.

“You have no access to funds, and you have no legal ability to contract with anybody to help you,” he said. “How do you hire a doctor, how do you hire a lawyer, when the court has taken away your ability to engage in contracts?”

Such restrictions are proper and necessary to protect a truly incapacitated ward from making critical mistakes, such as “giving $50,000 away to the vacuum salesman,” Brogan noted.

But when a ward is no longer incapacitated, the restrictions of an indefinite guardianship can be difficult to bear, Brogan said.

“Your life,” he said, “can really get turned upside down.”

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NJ guardian laws leave Toms River man fighting to regain freedom

Grand Forks Co. not liable for guardian

GRAND FORKS — It took a jury only about a half-hour Friday to decide Grand Forks County was not liable for any misdeeds by the county’s former public administrator Barb Zavala in her oversight of assets of Paul Veum, a ward of the county.

The four men and two women on the jury heard two days of testimony and a full morning of closing arguments by attorneys Friday. The verdict, read out in court by state District Judge Richard Geiger, found Zavala did “breach a fiduciary duty owed to Paul Veum” but that the breach didn’t cause any damages to Veum.

Zavala was not on trial in this civil case, but the county, as her employer, may have been on the hook for any damages.

A year ago Veum sued the county over what he claimed was mishandling by Zavala and her assistant, Cathi Westensee-Fisk, who acted as public administrators over Veum’s property and bank accounts for 90 days in 2011.

Veum, through his attorney, Tim Lamb, sought about $30,000 in damages, including cash and a 2002 pickup he claimed went missing while Zavala was his guardian and conservator. He also sought at least $50,000 for “pain and suffering,” but Judge Geiger limited the jury to finding only for “economic damages.”

That issue, and the larger one of whether Zavala “was acting within the scope of her employment” with the county, were not decided since the jury first found she caused no damages.

Veum, 77, lives in a nursing home in Lakota. He testified, despite showing the effects of Parkinson’s and dementia that were at issue in the trial. Under cross-examination by Howard Swanson, the county’s attorney, Veum said he couldn’t say for sure what Zavala took, if anything.

In his closing argument, Lamb told the jury to “use your common sense.”

Referring to Zavala and Westensee-Fisk, Lamb said, “If they didn’t breach their fiduciary duty, he’d still have stuff.”

Swanson admitted, during his closing statement, that Zavala failed to properly inventory and report on Veum’s property and bank account and what she did with it. But her failures “didn’t cause any of his property to go away,” and there was no evidence Zavala stole or mishandled any of it, Swanson said.

Swanson said he was pleased with the verdict and called it “consistent with what our position has been all along.”

Lamb said he was disappointed but respected the jury’s decision.

Zavala was ordered to take the stand this week, but she declined to answer questions from Lamb, citing her Fifth Amendment rights to not incriminate herself. State and federal prosecutors have been working on possible criminal charges against Zavala since late 2011.

The Veum case highlighted the unusual nature of the traditional office of public administrator in North Dakota counties. Grand Forks, after Zavala, was one of the last to contract out the services to a professional firm experienced in taking over the financial affairs of vulnerable adults.

Swanson’s argued that although Zavala was a county employee during her time as public administrator from 2008 until early 2012, the nature of the office under state law meant only a judge, not the county, had any supervisory control over her.

The Veum verdict may affect a similar lawsuit Lamb has brought against the county over Zavala’s handling of the property of Faith Krueger, an elderly Grand Forks woman.

t’s set to go to trial Sept. 10, also before Judge Geiger, and also with Swanson representing the county.

“I learned some things that should help in that case,” said Lamb, who told the jury this was his first courtroom trial. “But it’s a whole different set of facts in the Krueger case.”

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Grand Forks Co. not liable for guardian

See Also:
Elderly Claim County Exploitation

Elderly Claim County Exploitation

Grand Forks County has been hit with a civil lawsuit that claims the financial exploitation of elderly citizens.

Attorney, Tim Lamb says his clients lost hundreds of thousands of dollars, while Public Administrator, Barbara Zavala was working as their legal guardians. Zavala resigned her job in January.
Lamb says both victims were medically incapacitated at the time the incidents happened.

One of those clients is 85-years old Faith Krueger, who claims she’s lost over 300-thousand dollars.

Faith Krueger, Victim: “I’m just devastated by what happened.”

Reporter: “Faith, do you feel cheated?”

Krueger: “Yes I do, very much so.”

Reporter: “Did it cause lots of mental stress?”

Krueger: “A great deal if it, yes.”

Rodney Folkers is now the legal guardian for the second victim, Paul Veum, who lost 50-thousand dollars.

Rodney Folkers, Legal Guardian: “You know… was able to care for himself. He didn’t need anybody. He didn’t need the County. He didn’t want the County… didn’t want the help.”

Reporter: “Where did the money go?”

Tim Lamb, Attorney: “We don’t know. We’re assuming or we’re making the allegation that it’s been taken and it is in effect, been exploited from her.”

Lamb emphasizes that this is a civil lawsuit. However, he says a criminal investigation is underway.

Lambs call it a horrendous act…  and says he believes there may be more victims.

No criminal charges have been filed in this case. The North Dakota Bureau of Criminal Investigation will not confirm any involvement in an active case.

Howard Swanson, the attorney representing Grand Forks County is on vacation and could not be reached for comment.

Attorney Tim Lamb says he’s expecting a response from the County to his lawsuit sometime next week.

Full Article and Source:
Elderly Claim County Exploitation

Judge sides with hospital that forced chemotherapy for Amish girl with leukemia

An appeals court has sided with a hospital that wants to force a 10-year-old Amish girl to resume chemotherapy after her parents decided to stop the treatments.

The court ruled that a county judge must reconsider his decision that blocked Akron Children’s Hospital’s attempt to give an attorney who’s also a registered nurse limited guardianship over Sarah Hershberger and the power to make medical decisions for her.

The hospital believes Sarah’s leukemia is very treatable but says she will die without chemotherapy.
The judge in Medina County in northeast Ohio had ruled in July that Sarah’s parents had the right to make medical decisions for her.

The appeals court ruling issued Tuesday said the judge failed to consider whether appointing a guardian would be in the girl’s best interest. It also disagreed with the judge’s decision that said he could only transfer guardianship if the parents were found unfit.

The family’s attorney, John Oberholtzer, said Wednesday that the ruling essentially ordered the judge to disregard the rights of the parents.

Andy Hershberger, the girl’s father, said the family agreed to begin two years of treatments for Sarah last spring but stopped a second round of chemotherapy in June because it was making her extremely sick.

“It put her down for two days. She was not like her normal self,” he said. “We just thought we cannot do this to her.”

Sarah begged her parents to stop the chemotherapy and they agreed after a great deal of prayer, Hershberger said. The family, members of an insular Amish community, shuns many facets of modern life and is deeply religious.

“Our belief is, to a certain extent, we can use modern medicine, but at some times we have to stop it and do something else,” Hershberger said in a telephone interview.

They opted to consult with a wellness center and treat Sarah with natural medicines, such as herbs and vitamins, and see another doctor who is monitoring their daughter, Hershberger said.

“We see her every day. We watch her really close,” her father said. “She runs, plays. She crawls up ladders. She’s got a lot of energy, more than she had when she was doing chemo.”

Hershberger said they have not ruled out returning to Akron Children’s Hospital if Sarah’s health worsens. “We told them if it gets to the point that we cannot do anything for her, we would come back,” he said.

After the appeals court decision, the hospital said in a statement Wednesday that its goal is to ensure that the girl receives the most appropriate care based on scientific evidence and added that the allegation has never been about “parental unfitness.”

 Full Article and Source:
Judge sides with hospital that forced chemotherapy for Amish girl with leukemia

See Also:
Ohio hospital wants to force Amish girl’s cancer treatment after parents stop chemotherapy

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What You Should Know about Guardianships

When a person can no longer make financial or health decisions, a guardian may be appointed to fulfill these duties—but this position comes with great responsibility.

Often times, a person is appointed guardian to decide on financial and personal matters for someone who is unable to make such decisions—whether it’s old age or a disability. A family member or person of interest can petition the court to be named the guardian.

“You don’t plan to have a guardian,” says Randy Kessler, founding partner of Kessler & Solomiany.
“Depending on the terms of the guardian order—it’s like a power of attorney—the broadest would be every decision including medical decisions but the more common ones are financial,” says Kessler. In some states, “conservatorships” refer to having the authority to make financial decisions for a person, while the term “guardianship” generally refers to both financial and medical decisions.

“If someone’s in mental duress, a civil court could appoint a guardian when there’s financial decisions involved,” says Kessler. It’s a guardian’s job to make the best decisions on behalf of the other person, also called the ward.

If you’re seeking a guardianship over someone, experts suggest considering the time commitment. “It’s literally almost a tethering of the guardian to the ward,” says Robert Meyring, family law and estate planning attorney in Atlanta. “They take on handling everything and reporting back to the courts to the extent required.”

Before looking to take on this responsibility, experts provide the following information and tips to help maneuver through the process:

What’s the guardianship process?

Guardianships are a court-appointed process that can take four to eight weeks and can get ugly. And even though guardians are paid, the costs to establish the guardianship and time commitment can be high.

“It is a huge difference in cost with [estate] planning versus if you didn’t plan and [a guardianship] was imposed upon you later on,” says Randy Michel, family law and estate planning attorney in College Station, Texas. “The difference can be a few hundred dollars [for an estate plan] versus tens of thousands of dollars [for a guardianship], easy.” If a guardianship is contested, the costs can spiral out of control.

“If you’re appointed guardian, you can use the person’s money to pay legal fees,” says Michel. “If you lose, you’re going to pay out of your own pocket.”

Having an estate plan can take care of any situation that may occur prior to death. “In more than 50% of the time, someone will suffer incapacity before they pass away,” says Meyring.

How are Wards Protected?

The person you are seeking guardianship over will be made aware of your intentions.

“The person who wants to become a guardian needs to understand the person will be served with papers that they’re incapacitated and they may be mad about that,” says Michel. This safeguard protects people from losing control over their lives if they are still competent to handle their health and financial decisions.

“In certain states, if you owe this person money, you’re not qualified to be guardian,” he adds.

A psychologist typically reports on the person’s mental health to decide if a guardian is needed. “The person can give testimony in court in opposition to the guardianship. If they have a very lucid moment, it could complicate matters,” says Michel.

The court appoints an attorney to represent the person in question’s best interest, whether the guardianship has merit and the fitness of both people. “It’s really the lawyer’s duty to make sure that the person seeking the guardianship follows the law,” says Michel.

Full Article and Source:
What You Should Know about Guardianships

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