Dysfunction at the California Fiduciaries Bureau

The California Department of Consumer Affairs Professional Fiduciaries Bureau (“DCAPFB”) has recently released, through its advisory committee, a 2013 Strategic Planning Session with attachments, which indicates great dysfunction within the DCAPFB, and which also includes a 2013 DCAPFB Environmental Scan Analysis.

The analysis includes interviews conducted with Advisory Committee Members of the DCAFFB, three separate online surveys for internal Department of Consumer Affairs (“DCA”) stakeholders, external stakeholders, and advocates of consumers, though Fiduciary Watch, Inc., was not asked to participate.  And, three separate online surveys for internal DCA stakeholders, external stakeholders and advocates of consumers, which the DCAPFB claims it planned to use as a discussion guide for the August 1, 2013, Fiduciary Bureau planning sessions of August 1, 2013, and August 2, 2013, which conveniently, the DCAPFB did not video tape, thereby preventing those who did not attend, including the California Pubic, and vulnerable California consumers, from knowing that licensing, not consumer protection, is first and foremost, at the DCAPFB.

Full Article and Source:
Dysfunction at the California Fiduciaries Bureau

Read the report:  Professional Fiduciaries Bureau Strategic Planning Session

Linda Kincaid Reports: Modesto elder abuse: Professional fiduciary Laurie Jamison isolates June Guinn

Since 2008, professional fiduciary Laurie Jamison has hidden June Guinn, 88, from her family. Until a week ago, family say they did not know where June was hidden or if she was still alive. Thanks to the efforts of Modesto Police Department, June was located at a home in Modesto, California. Jamison continues to deny June any contact with her loved ones.

As June’s conservator, Jamison is familiar with California statutes governing the actions of conservators. However, Jamison flagrantly violates California’s Probate Code and June’s right to visit with her family.

Probate Code 2352(b) states:

The conservator shall select the least restrictive appropriate residence, as described in Section 2352.5, that is available and necessary to meet the needs of the conservatee, and that is in the best interests of the conservatee.

California’s Handbook for Conservators gives conservators specific guidance concerning visitation. Each conservator is required to have a copy of the Handbook.

When a person becomes a conservatee, he or she does not lose the right to visit with friends or family.  

Do not isolate the conservatee by keeping friends or family away.

June’s daughters and grandson say Jamison ignored their repeated requests to learn where June resided, to visit with June, or to even speak to with June on the phone. In response to that isolation, the Court instructed:

It is further ordered that any visitation request shall be submitted to Laurie Jamison directly via email. The Court has no objection to visitation as long as the time and place are reasonable.

Family say Jamison ignored the court’s specific instructions. Their pleas to visit or speak with June continue to be ignored.

In June 2013, elder advocates also began requesting visits and phone calls with June.
  
On June 9, this Examiner emailed Jamison, requesting a visit with June.

On June 10, elder advocate Elaine Renoire of the National Association to STOP Guardian Abuse (NASGA) emailed Jamison, requesting a visit with June.

Jamison responded to Kincaid and Renoire:

I have concerns around the sensitive and private family dynamics at play in this matter and, in order to best protect Ms. Guinn, I must ask that you remain patient while I vet your request with my counsel. I will respond with further information as soon as I am able.

Jamison did not respond with any further information.

On June 10, Marti Oakley of TS Radio emailed Jamison, asking for a visit with June. Jamison’s attorney, Terry Campbell Wallace responded.

Your comment that many people have become concerned for the welfare of June Guinn is interesting in that none of the family members have contacted Laurie Jamison, either by email or telephone, to request visitation with Mrs. Guinn. Her location is kept confidential due to incidents that occurred in the past. However, visitation by family members can be arranged, and certainly are welcome, by contacting Ms. Jamison.

Wallace’s response is not consistent with family’s experiences of having their pleas ignored for the past five years. Daughters Lynda Lucido and Cheryl Morris both say they have repeatedly phoned, sent emails and certified letters for the past five years, begging to have contact with their mother. Jamison does not respond.

 

Full Article and Source:
Modesto elder abuse: Professional fiduciary Laurie Jamison isolates June Guinn

See Also:
Linda Kincaid Reports: Elder Abuse of June Guinn by Modesto, California Conservator

CA Professional Fiduciaries Bureau Issues A Citation

On October 17, 2012, the California Professional Fiduciary Bureau issued a Citation Order against Mary M. Pynenburg of Albany, California, case number 2011-50, for five (5) violations consisting of a violation for failing to keep complete accurate records of client accounts and for failing to provide the Bureau with records upon request by the Bureau.

Furthermore, Pynenburg was cited for failing to post a bond as required in a breach of fiduciary duties and violation of the Bureau’s Code of Ethics, and for failing to file an initial financial statement or an annual financial statement as required by law.

Not only did fiduciary Pynenburg fail to comply with the above mentioned laws, Pynenburg signed her application renewal application under the penalty of perjury asserting that she had completed her annual statement as required by law, however, in all reality failed to sumbit her annual statement with regards to complaint number PF2011000050.

Full Article & Source:
CA Professional Fiduciaries Bureau Issues A Citation

Appellate Court: Disabled San Jose Man Owes Nothing to Trustee and Attorneys in Bitter Probate Dispute

In a stunning ruling, a California appellate court on Thursday declared that a Silicon Valley trustee and his two attorneys are not entitled to a penny of compensation, after a years-long dispute over their six-figure bill to briefly manage a disabled San Jose man’s life savings.

The decision is a major victory for Danny Reed, a brain-injury victim whose story was featured in July in this newspaper’s investigation “Loss of Trust” — an exposé of how the Santa Clara County Superior Court long allowed estate managers to receive outlandish fees for their court-appointed duties serving the disabled and elderly.

Not only was the ruling major vindication for the 37-year-old man who waged a rare fight against powerful interests in the local courts, it also sets legal precedent that strengthens the rights of others to maintain control of their court-overseen trusts.

“This is much bigger than me,” Reed said Thursday. “It’s for all the people who can’t understand what’s going on. This is something that will help them too.”

Reed’s life became entangled in Santa Clara County’s probate court after a pair of accidents left him partially disabled. The money he received in legal settlements was set aside in a special needs trust overseen by a judge.

While Reed never sought help, a probate judge appointed trustee Thomas Thorpe in 2010 to temporarily oversee Reed’s trust — including $650,000 and a townhouse — when questions arose over  his mother’s handling of the funds.

Thursday’s opinion, written by 6th District Court of Appeal Acting Presiding Justice Eugene Premo, reversed a lower court’s order that Reed’s trust must pay $51,285 to Thorpe and his two attorneys, Diane Brown and Michael Desmarais. The trio originally sought $108,771 for Thorpe’s 4½ months on the job.

The appellate court said the judge had the power to appoint Thorpe but should not have awarded him and his attorneys any fees, because the trust document included a provision that explicitly denied any new trustees payment for”> their services. That was a provision of Reed’s trust document that Thorpe and his attorney had tried unsuccessfully to change.

Thursday’s ruling, however, did not address another $146,000 in fees that the lower court ruled Reed’s trust must pay Desmarais for his work defending Thorpe’s original bill. That dispute is part of a second case that the appellate court is still to consider.

It remained unclear whether Thorpe would appeal the ruling to the state Supreme Court. Calls to Thorpe and his attorneys were not returned.

Full Article and Source:
Appellate Court: Disabled San Jose Man Owes Nothing to Trustee and Attorneys in Bitter Probate Dispute

See Also:
Document:  Ruling in Favor of Danny Reed

San Jose Appeals Court Justice Accuses Estate Trustee of ‘Feeding Frenzy’

California Fiduciaries Bureau Advisory Committee Lacks Public And Non-Profit Advocacy Committee Members

As of July 6, 2012, the California Fiduciaries Bureau Advisory Committee lacks three members out seven. The three of the four current committee members are all private licensed fiduciaries, leaving very little room for the protection of consumers of the private fiduciary, guardian, and or trustee in California.

According to the Fiduciaries Bureau Committee Member web page at http://www.fiduciary.ca.gov/about_us/advisory_committee.shtml, all its licensed private fiduciary advisory members have been appointed by the Governor of California.

It is not surprising that the Fiduciaries Bureau of California is lacking a public advisory committee member, and it also not surprising that the Bureau advisory committee is without a non-profit organization advocating on behalf of the elderly, considering the Bureau’s lackluster record in protecting consumers of private fiduciaries from financial abuse, emotional distress, and their freedoms.

The Fiduciaries Advisory Committee may be reached at fiduciary@dca.ca.gov.

Full Article and Source:
FiduciaryWatch: California Fiduciaries Bureau Advisory Committee Lacks Public And Non-Profit Advocacy Committee Members

VA: Guardianship Case in McLean Illustrates Lack of Regulation for Those Caring for the Elderly

Samuel Drakulich earned a Bronze Star for drawing enemy fire away from a wounded soldier during World War II. He parachuted behind German lines to organize the resistance and went on to serve in the CIA.

But by his mid-80s, a stroke put the war hero in a wheelchair. Jeanne, his wife, had dementia. Their McLean home was in disarray and bills went unpaid.

A dispute between the couple’s children led the courts to decide that the Drakuliches needed a third-party caretaker. A judge appointed a law firm, which is common in Virginia when the elderly and incapacitated have no one else.

Now the Drakuliches and the law firm are fighting over tens of thousands of dollars in billings in a conflict that likely will be decided by the state Supreme Court.

It has raised questions among elder-care advocates and legislators about how a small number of paid guardians — both lawyers and non-lawyer professionals — are treating the aging and how states oversee the process.
In the McLean case, Needham, Mitnick and Pollack (NMP) took control of the Drakuliches’ lives and $700,000 nest egg, as it had done in six similar cases in Fairfax County. It charged wards up to $125 an hour — its normal professional rates — for personal services, such as renewing dog licenses, sorting boxes and preparing instructions on emptying a dryer’s lint trap, court records show.

NMP billed the Drakuliches $6,300 to prepare $1,800 worth of household items for auction, another ward $2,300 to sell a $4,000 car and a third person in their care $4,200 to recover $5,300 worth of investments, a court investigator found.

The Drakulich family calls the bills exorbitant; NMP says they are normal legal bills. The firm says it and other firms can’t afford to become guardians unless they are allowed to charge their regular rates.

Full Article and Source:
Guardianship Case in McLean Illustrates Lack of Regulation for Those Caring for the Elderly

Recommended Blog: FiduciaryWatch

FiduciaryWatch.org has filed for nonprofit incorporation, and wishes to promote and support the interests of seniors, disabled adults, minors, and non-disabled minors who are consumers of licensed private fiduciaries, and suffering emotionally, physically, and or financially at the hands of the private fiduciary industry in California and or Nationwide.

This page is a general outline of what we here at fiduciarywatch.org would like to see provided to advocate for the protection of seniors, disabled adults and minors, and non-disabled minors and their families, whom are consumers of the merging industry of the private fiduciary in both California and nationwide. Fiduciarywatch.org welcomes input and participation. Please feel free to explore our blog, send in e-mails, write articles, produce journalistic reporting, journalistic documentaries, u-tube reports, etc., informing us, and the public, about any senior citizen, disabled adult and or minor, non-disabled minor, and their family/families who are being taken advantage by those who earn their livelihood in the new and merging industry of the private fiduciary, estate managers, court appointed guardians, court appointed trustees, probate court investigators, lawyers, and or probate judges.

Source:
Fiduciary Watch

CFPB Testifies on Elder Financial Abuse Initiatives

The CFPB’s initiatives to address elder financial abuse were the focus of testimony last week by Hubert H. “Skip” Humphrey III, the CFPB’s Assistant Director for the Office of Older Americans, to the Senate’s Special Committee on Aging.

Highlights of Mr. Humphrey’s testimony include the following:
• The CFPB has been participating in a working group with the Financial Services Roundtable that addresses issues such as enhancing the capacity of financial institutions to report suspected elder financial abuse.
• The CFPB is a member of the Elder Justice Coordinating Council, an 11-agency body convened by the Secretary of Health and Human Services in partnership with the Attorney General. The Council held its inaugural meeting in October of this year, at which national experts from law enforcement, social services, academia, medicine, law, the judiciary, and financial institutions spoke about various themes that included the (1) need to develop strategies to deal with the myriad of perpetrators who victimize older Americans, (2) need for collaboration on the federal, state and local levels, as well as public-private partnerships, (3) challenge presented by diminished capacity’s impact on an older adult’s ability to detect a fraud or scam, and (4) need for a broad-scale public education campaign to raise awareness of elder financial abuse and what to do about it in light of the aging population.
• The CFPB has various initiatives underway that address the themes discussed at the Council meeting. Those initiatives include
(1) development of generic and state-specific “how-to” guides (expected to be published in 2013) for family members who serve as “lay fiduciaries” and often have no experience handling someone else’s money, (2) production of a national guide to help operators of senior housing, assisted living, and skilled nursing facilities identify and intervene in exploitation cases, (3) development in collaboration with the FDIC of a “Money Smart for Older Adults” community education and awareness program that will focus on preventing, recognizing, and reporting elder financial exploitation, and (4) working with stakeholders on the state and local levels to help create and sustain “Older American Protection Networks” that will develop multi-disciplinary teams to provide community education, raise public awareness, enhance response to reports of abuse, and increase prosecution.
• In addition, to address concerns of financial institutions as to whether it is permissible under federal law for them to share personal account holder information when reporting elder financial exploitation, the CFPB is developing strategies (including in cooperation with other federal agencies) for communicating to financial institutions that the Gramm-Leach-Bliley Act generally does not prohibit them from reporting suspected abuse to, or respond to requests for personal information from, law enforcement, Adult Protective Services agencies, and other relevant entities.

Full Article and Source:
CFPB Testifies on Elder Financial Abuse Initiatives

Public Hearing: Proposed Rate Change Plan for Santa Clara County Professional Fiduciaries

Elderly adults, the disabled and their advocates packed a San Jose auditorium Wednesday, expressing outrage over excessive fees charged by court-appointed estate managers who are now under fire as a state lawmaker and Santa Clara County’s top judge promised action.

One woman described losing everything to trustees, whose fees landed the onetime philanthropist on food stamps. Another lamented a $182,000 bill for nine months’ work billed to her ex-husband’s estate.

“I’m a senior and I’ve lost everything,” Annette Aiassa told Judge Brian Walsh and state Assemblyman Jim Beall, D-San Jose. “So I’m wondering, can you do anything for me?”

Their pleas for help came in the first public hearing over proposed reforms since this newspaper’s investigation “Loss of Trust” exposed how permissive Santa Clara County’s court has been over the years as some private conservators hand six-figure bills to incapacitated adults under the court’s watch.

Less than a month after the newspaper’s story, the court convened a panel that has proposed new rules to curb fees that, in some cases, are double what neighboring counties allow.

Local judges vote Nov. 15 before sending the new rules to state officials.

If approved, as of Jan. 1, conservators here would be expected to charge hourly rates between $115 and $165 — half what many now charge. Routine tasks such as opening mail and grocery shopping could not be billed at rates higher than $55 an hour.

Realtor Richard Calhoun said the proposed changes sound good but do not go far enough. “Cutting the hourly rate is fine,” Calhoun said, “but they could double the work that they do.”

Walsh told the crowd that the court is committed to change, noting that Santa Clara County is likely to pass the strictest set of guidelines on conservator fees in the state. But he described the difficulty crafting rules that are not “too strict,” thereby driving away “caring and capable people.”

Full Article and Source:
Rate Change Plan Seeks to Rein in Expensive Estate Manager Fees

See Also:
Special Report: Loss of Trust

"Law 101 and Then Some!"

(By a NASGA member)

It’s not very often that we hear of victims of guardianship and conservatorship escaping from their sentences, but we’ve just seen the Chism victory in Michigan – he came out alive. Recently, there was a decision by the Second Circuit Court of Appeals on a Connecticut case that a court-appointed attorney and a conservator involved in an elderly man’s improper conservatorship were not entitled to absolute federal quasi-judicial immunity and can be sued. Unfortunately, Daniel Gross died before he could enjoy that victory, but his daughter, Dee King, will pursue it.

On our website we ask “Who’s to Blame” – and the list is long. However, as we’ve been learning more and more over time, the greatest share of blame lies with the judges and their blatant violation of law on several issues:

(1)  The first requirement of due process of law is notice. A judge must first look to his/her jurisdiction. After a petition is filed, and if it has slipped by the court clerk without proof of service on all parties, then the judge is to blame if he/she proceeds with the case, without personal jurisdiction. Due process requires both sides of a case to be noticed and present. “Both sides” means the victim and his/her relatives should have prior notice of a petition having been filed. If there is no due process notice prior to an adjudication of incompetency, such an order should be vacated, as void. But will the “tag team” players raise that issue? Not if they’re looking to land another lucrative guardianship! And how can the victims (non-noticed “respondents”) hire a lawyer if their assets are suddenly no longer under their control, having already been confiscated by a judge and turned over to a court-appointed guardian or conservator, without due process of law?

(2) The second element of constitutional due process is “opportunity” – opportunity for both sides to participate in a hearing, which must be fair and impartial. With the growth of so-called “emergency” petitions, there is total violation of rights if an adjudication is made based on an ex-parte “hearing.” Mere conclusory allegations contained in a petition heard ex-parte do not constitute evidence. The legislators are to blame if they don’t fix that growing problem.

(3) The third element, “fair and impartial,” means that both sides should be present and participating and the judge should be fair and impartial. Really? Not in the guardianship game!

(4) Next comes the statutory evidentiary requirement for guardianship and conservatorship cases in most states. In making findings, a judge must follow the “clear and convincing” standard and recite such in the order of adjudication. Those critical words are necessary to support findings, if any – and there are occasions when there are no specific findings!

(5) Having once signed an order committing a vulnerable person to a lifetime in “protection” jail, stripped of all rights including the right to complain, is the judge off the hook? Not yet, he/she is responsible for what the appointed fiduciaries are doing. Many judges fail to monitor their cases. Many “conservators,” failing to conserve the ward’s assets, simply help themselves to them without seeking court authority for payment. And many judges, even if authority is sought, don’t bother to examine the billings, merely rubberstamping their approval.

The offices of court administration are also to blame for lack of monitoring of what their judges are doing.

And where is law enforcement in this? Generally not interested, but maybe they’re waking up! The FBI has just raided a Georgia probate judge’s records and confiscated them all. We anxiously await further news on this exciting issue.

And then there is the public interest. Protective statutes are promulgated in the public interest, and the public must know what’s going on in the courts! Operating under color of law and cloak of darkness is an invitation for rape and plunder by professional fiduciaries (“persons of trust”?).

Excessive sealing of court records in these “protection” cases is unnecessary other than to remove critical personal information. The Chicago Tribune recently had an article on judge’s sealing of all kinds of cases. That should not be allowed, other than to remove critical personal data.

There must be open records so the public knows what’s going on behind the black wall, especially at election time.

See Also:
Retired Chiropractor Returns to Being a Free Man
Elderly Man Can Sue Conservator, Attorney for Nursing Home Stay
NASGA:  Who’s Really to Blame?