LRS files merit brief in guardianship case; Organizations file friend of the court brief in support

August 15, 2012

The Ohio Legal Rights Service (LRS) has taken the important step of bringing the issue of whether an individual with a disability who is indigent (unable to pay) has the same right to appointed counsel at court expense as he or she would have during an initial hearing. This week LRS filed a merit brief in the Ohio Supreme Court, appealing a decision by the Eighth District Court of Appeals in State of Ohio, ex rel. James L. McQueen v. The Court of Common Pleas of Cuyahoga County Probate Division. This is a case of first impression in which the Ohio Supreme Court’s decision will decide whether Ohioans who are under a guardianship will have the ability to fully challenge that guardianship, a right which is guaranteed by Ohio law.

LRS represents an individual with a disability who has been under a guardianship for two years. His guardian is neither a family member, nor a friend. Rather his guardian works for an agency funded with money that LRS contends should first be paid to provide appointed counsel in these types of cases. By the power of his guardian, he lives in a secured (locked) nursing facility. He wants to leave and to manage his own affairs.

Last fall he requested a review hearing stating that he believed he no longer needed a guardian. In his request, he asked the Court of Common Pleas for Cuyahoga County, Probate Division to provide him with legal counsel. When the court failed to do this, LRS sought immediate relief by filing a mandamus action in the Court of Appeals. Mandamus is a court action to order a government official, including a judge or magistrate, to perform her or his duty. While the Court of Appeals initially granted an alternative writ to the Probate Court to show cause why relief should not be granted, the Court of Appeals ultimately concluded that the law was not clear enough in its mind to meet the high standards to issue the extraordinary remedy of mandamus.

At the direction of the individual, LRS appealed this decision to the Ohio Supreme Court. Case law makes clear that it is actually the duty of a court of appeals to decide what the law is. LRS argues that in crafting the statutory scheme of due process rights for indigent, adult wards, during initial and subsequent review hearings, the General Assembly intended to provide for the right to counsel in both. LRS explained in its merit brief that this is the only sound reading of applicable Ohio law. Furthermore, this reading protects the right of an otherwise vulnerable citizen, who has had his right to make decisions removed by judicial power, to fully challenge that decision in a future judicial hearing.

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LRS files merit brief in guardianship case; Organizations file friend of the court brief in support

OBRA SPECIAL NEEDS POOLED TRUSTS and IL State Senate Bill 2840

We at ProbateSharks continue to have concerns about OBRA Special Needs Pooled Trusts. OBRA Trusts were created to allow people who have special needs to qualify for Medicaid by depositing their money into these trusts. The intention of these trusts was to preserve estates of disabled people by allowing them to qualify for public aid nursing homes while preserving their estate for their special needs.

Unfortunately, these trusts are being abused by certain guardians in Cook County. Elderly disabled people with large estates are being targeted for guardianships through unscrupulous methods including: Illegal removal of Powers of Attorney, deceit of the elderly by owners of guardianship companies, and inaccurate medical reports being submitted into court records to make the elderly appear to be disabled with dementia. Once the rich elderly disabled person becomes a ward of the court, the unscrupulous guardians place the wards’ estates into OBRA trusts, place the ward into for-profit Medicaid-funded nursing homes, and then deplete the estate through guardian fees, care management fees, and attorneys fees.

In other words, OBRA Trusts are being used by some to financially exploit the elderly disabled while profits are obtained for the guardians, attorneys, case managers, and for-profit nursing home owners. This is being done at the expense of the wards, and the taxpayers in the state of Illinois.

In June of this year, Governor Quinn signed Senate bill 2840, which became Public Act 97-0689.It is called the Save Medicaid Access and Resources Together (SMART) Act. Its impact is anything but friendly to Illinois seniors, especiallly those who are wards of the 18th floor of the Daley Center.

Unlike the January 1st rules changes, which were driven by federal laws, these new rules changes are almost entirely due to the well-known Illinois budget problems. The new law cuts $1.6 billion from the Medicaid budget, primarily by modifying eligibility requirements and benefits.

The biggest change made by SMART is the elimination of Pooled Payback trusts (also called OBRA d(4)(c) special needs trusts) in Medicaid planning for those over the age of 65, UNLESS THEY ARE WARDS OF THE STATE OR PUBLIC GUARDIAN!!!

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OBRA SPECIAL NEEDS POOLED TRUSTS and IL State Senate Bill 2840

In Major Victory for Adult Protective Services Lawsuit Judge Allows Case to Move Forward

In the case alleging ongoing failures in Adult Protective Services brought by representatives of the elderly and disabled community, Judge Kupersmith ruled that can go forward in part, and rejected the state’s attempt to have the case thrown out. The Judge found that the plaintiffs raised serious concerns about whether Adult Protective Services is meeting the plain requirements of the law. Furthermore, Judge Kupersmith found that concerns about Adult Protective Services’ failure to do its duty to respond to allegations of abuse neglect and exploitation warrant review by the Court.

“This is a major victory for the Plaintiffs and for vulnerable Vermonters that are at risk of abuse, neglect or exploitation,” said Barbara Prine, Vermont Legal Aid, lead counsel for the Plaintiffs. “The Court sent a clear message that the allegations in this case deserve judicial scrutiny and that the State should not be allowed to rely on procedural technicalities to deny judicial review of the important issues raised by this lawsuit.”

While the case will move forward, the Judge did dismiss Plaintiffs on a second claim regarding the failure of the Department of Disabilities, Aging, and Independent Living to fix the problem in May of 2011, through the signed Corrective Action Plan. Although the Department had agreed to the terms of plan, the Court ruled that this was not an enforceable contract.

The Judge also did not allow the Plaintiffs to bring the case solely as citizens of Vermont. Instead, the judge ruled that Plaintiffs Disability Rights Vermont and Community of Vermont Elders will have 30 days to amend their original complaint to describe how the failure of Adult Protective Services impedes their ability to fulfill their organizational mission, and forces them to devote significant resources to identify and counteract APS’s deficiencies.

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In Major Victory for Adult Protective Services Lawsuit Judge Allows Case to Move Forward