Editorial: Not Enough Protection for Elders

June 14 is World Elder Abuse Awareness Day. Financial exploitation of elders is becoming the primary form of elder abuse, often involving family members or even close elderly friends who prey on seniors to gain control of assets. The elder need not have dementia to be victimized. These predators take advantage of physical disabilities — vision, hearing, mobility — to gain an elder’s trust and isolate the elder, to control communication, transportation, medical care and to access mail and credit cards, bank accounts and investments.

Legal mechanisms like power of attorney (POA), guardianship/conservatorship or healthcare proxy (HCP) can be obtained through misrepresentation, coercion, isolation and intimidation of an elder. The abuser then can use the victim’s assets to fight those trying to stop the exploitation.

Another form of abuse is “granny snatching”; an elder is taken out of state under false pretenses (a vacation?) to a perpetrator’s turf, isolated from the elder’s friends, family and familiar medical care. Once there, new legal and financial oversight (guardian, conservator, POA) is obtained. The elder rarely returns.

Full Editorial and Source:
Not Enough Protection for Elders

Lawless America: Marty Prehn

Source: Lawless America: Marty Prehn

Source: The Prehn Family

In the Matter of Glasser

IN RE MATTER OF GLASSER

IN THE MATTER OF LILLIAN GLASSER, a vulnerable adult.

IN THE MATTER OF LILLIAN GLASSER, an incapacitated person.

Nos. A-0500-08T3, A-0505-08T3, A-0509-08T3

Superior Court of New Jersey, Appellate Division.

Argued March 21, 2011.

Decided July 21, 2011.

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These three appeals, which we have consolidated for purposes of this opinion, arise from disputes between Mark Glasser (Mark) and his sister, Suzanne Glasser Mathews (Suzanne), over the guardianship and finances of their mother, Lillian Glasser (Lillian).1 The underlying guardianship dispute spawned litigation in Texas and New Jersey. The New Jersey action entailed collateral disputes over the choice of a guardian of Lillian’s person, Lillian’s December 2002 will, and the right or obligation of assorted parties to either receive or pay counsel fees.

In broad outline, after a thirty-four day trial, Judge Alexander P. Waugh, Jr., then sitting as the Probate judge, determined that Suzanne exercised undue influence over Lillian in a variety of ways, including the preparation of a December 2002 will. He also found that Suzanne violated her fiduciary duty in exercising Lillian’s power of attorney (POA). The judge found that while Mark primarily had his mother’s best interests at heart, he also acted in ways that were disruptive to her medical care and otherwise counter-productive to her interests. The judge determined that Lillian was incapacitated, but that none of her family members should act as the guardian of her person. Instead, he appointed an attorney who, in the judge’s view, could act independently and could adequately protect Lillian’s interests in the face of competing, aggressive demands from her children and friends.

All parties agreed that a neutral financial institution should act as guardian of her property. Based on his view of the law and the equities, the judge determined that Suzanne should reimburse Lillian’s estate for monies Suzanne took from the estate and spent on her own counsel fees in the New Jersey litigation, and for counsel fees Suzanne spent in creating a family limited partnership in Texas, which Suzanne controlled and into which she improperly transferred almost all of Lillian’s assets; he denied Suzanne’s application for counsel fees and costs for the Texas litigation and ordered her to reimburse her mother’s estate for those expenses as well; he awarded some counsel fees to Mark for the litigation in Texas; and he awarded no counsel fees to Suzanne’s children for their effort to involve themselves in the New Jersey litigation. He also removed Suzanne as Lillian’s health care representative, except for participation in end-of-life decisions.

Notably, no party to this appeal challenges the judge’s finding that Lillian is incapacitated and requires the appointment of a guardian of her person and a guardian of her property. The appeals largely concern money — i.e., disputes over counsel fees and Lillian’s will — and the judge’s choice of Lillian’s guardian of the person and health care representative.

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Jeffrey M. Pollock argued the cause for appellant/cross-respondent Suzanne Glasser Mathews in A-0500-08 and as respondent in A-0505-08 and A-0509-08 (Fox Rothschild, L.L.P., attorneys; Mr. Pollock, of counsel and on the briefs; Abbey True Harris, on the briefs).

Thomas S. Harty argued the cause for respondent/cross-appellant Eric Smith in A-0500-08 and as respondent in A-0509-08 (Cozen O’Connor, attorneys; Mr. Harty, on the brief).

Jonathan I. Epstein argued the cause for respondent/cross-appellant Joseph J. Catanese in A-0500-08 and as respondent in A-0509-08 (Drinker Biddle & Reath, L.L.P., attorneys; Mr. Epstein and Kristine M. Dress, on the briefs).

Paul F. Cullum, III, argued the cause for respondents Alexandra Mathews, Benjamin Mathews and Roselyn Mathews in A-0500-08 and A-0505-08 and as appellants in A-0509-08 (LeClairRyan, attorneys; Mr. Cullum, on the brief).

Lawrence M. Rosa, Board Counsel, argued the cause for respondent Middlesex County Board of Social Services, Adult Protective Services Unit, in A-0500-08 (Mr. Rosa, on the statement in lieu of brief).

David B. Rubin argued the cause for appellant Mark Glasser in A-0505-08 and as respondent in A-0500-08 and A-0509-08.

Andrew J. DeMaio, argued the cause for respondent Morgan Stanley Trust, N.A. in A-0500-08, A-0505-08, and A-0509-08 (Neff Aguilar, L.L.C., attorneys; Mr. DeMaio, on the brief).

Before Judges Lisa, Reisner and Sabatino.



Source:

In RE Matter of Glasser

CT Woman Charged for Violating Court Order by Taking Mother to Florida

A Stratford woman was formally charged with first-degree custodial interference for taking her 81-year-old mother from Milford to Florida in violation of a probate court order, police said.

Jeryl Gray, 56, was arraigned Friday in Milford Superior Court and held on $75,000 bond. She had been picked up on a Milford police-issued warrant in Florida on July 20. Her mother, Dolores, who was missing for more than three weeks, was found safe with her daughter. Milford police had issued a Silver Alert for Dolores.

Dolores Gray was taken into protective custody by Florida officials and transported back to Connecticut by her family.

[Jeryl] Gray has been involved in a lengthy dispute with her two brothers over the care and custody of her mother, who suffers from dementia, police said.

In December, the Milford/Orange Probate Court issued an order that Dolores Gray not be taken from the state of Connecticut and granted conservatorship to Dolores’ son, who lives in Milford.

Police said that after a court-authorized visitation on July 3, Gray took her mother to West Palm Beach, Fla.

In a May hearing, Dolores Gray told the judge she is “tired of all the family stuff,” and would like to stay in contact with all three of her children, as well as her only grandchild, who lives in Milford.

“This wouldn’t be happening if their father was alive,” Dolores Gray said, according to a Probate Court transcript. “I’m retired and I’d like to go back and forth between Milford and Florida, but I’m fed up with all this fighting going on.”

Full Article and Source:
Stratford Woman Formally Charged for Violating Court Order by Taking Mother to Florida

>’Granny Snatching’

> I became involved in elder law when my mother, then aged 91, moved from her apartment near Albany, New York, to my home in Connecticut on December 22, 2008. She had lived alone for nearly a decade after my father died, most of that time capable of handling herself and her affairs, but she was hospitalized in December 2008 suffering from dehydration and potassium deficiency.

As a result my siblings attempted to force her into a nursing home against her will –personnel from the nursing home were in the hospital preparing to move her out when I was notified.

I intervened, offering my home as an alternative, which was fine with everyone until my mother realized that my sister had kept her checkbook, which didn’t go over well with Mom.

With proper nutrition and some much needed sleep Mom rebounded quickly after her hospitalization and spent the week after Christmas 2008 in a series of fruitless attempts to convince my sister to relinquish the checkbook. My sister refused so ultimately Mom rescinded the limited power of attorney she had given my sister, and moved her finances to new accounts in Connecticut.

After which my sister, brother and some of their offspring joined in a lawsuit against Mom, the aim of which was to force her to return to New York, to be placed in an Alzheimer’s ward, even though she was not suffering from that disease, and to give my sister guardianship over my mother’s body, property, social life, and her money; all of it.

Full Article and Source:
Granny Snatching T-Day Tomorrow; New Laws for CT Elderly?

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It’s safe to believe in the American Dream … isn’t it? We live in a country where we take quality education, careers, nice homes, and the wherewithal to raise a family for granted.

We are well fed. We’re warm. We keep up with the latest fashions. Our legal system provides swift justice and righteousness prevails. We solve problems, not create them! Right?

We anticipate a safe and secure retirement where we hold hands with our life’s partner during leisurely strolls on golden sands – waving palms overhead and perfectly sized waves breaking on the shore beneath a glowing sunset. Each evening we are submerged in the warmth of a life lived long and well, and the promise that tomorrow will be just like today.

And then … KA-POW! A giant wrecking ball tears in from stage right, smashing the palm trees, digging huge furrows in the perfect sand, and dumping the gently setting sun into a black sea of hissing steam. Darkness falls upon us and our world is turned upside down as family members appear from nowhere, seizing us, dragging us toward an unanticipated and unwanted future, penniless, powerless, confined in the clutches of “elder care.”

Source:
RonaldWinterBooks.com

Holly Peffer Argues Her Own Case For Her Mother’s Return

The matter at hand stems from a battle over who should be guardian of Rita Denmark.

Holly Peffer presented exhibits and arguments, at a hearing in the McKean County Court House small court room Friday [10/8/10], and pleaded for a ruling that would get her mother, Rita Denmark, out of a Florida nursing home and back to Bradford to live, in effect ending her brother’s guardianship over their mother.

Attorney Ronald Langella, appearing for his client Etta Getty (who did not attend), lodged a continuing objection to most of what Peffer was presenting to the extent it relied on facts not presented before White’s eqarlier ruling, and later declared that the judge lacks the authority to confer with a Florida judge concerning a procedural puzzle at the heart of the case. Getty is a Florida guardian appointed by a Florida court.

For his part, Senior Visiting Judge H. William White listened closely, patiently allowed for the difficulties faced by a party proceeding pro se (serving as her own attorney). His interest in the case and the legal issues it raises was evident throughout the hearing.

The judge said he would examine the items being presented for consideration, and would take into consideration those that he properly could, so as to decide “whether I was wrong.”

At one point White mused about some the murky points considering how a court in Florida had come to accept jurisdiction and why it had handled things as it did. He suggested that it would be practical for the judges to communicate, “me picking up the phone and conferring with the Florida judge.”

Peffer’s pleadings have argued that fraud was committed in order to get the matter out of McKean County and under the jurisdiction of a Florida Court; that because there had been a guardianship action commenced in McKean County, the Florida Court should not have agreed to hear a petition for guardianship in Florida. Besides, Peffer said, the Florida court assumed or was told Mrs. Denmark was domiciled there, when instead she had been taken there in a ploy to derail the McKean County guardianship petition.

Peffer also had harsh words for Bradford attorney Mark Hollenbeck, claiming he had been engaged to represent her mother’s interests but had worked against those interests.

Judge White stated that it is a very serious thing to suggest that an attorney has failed to carry out his duty toward his client, because “the courts, our system, we depend on being able to know that attorneys represent their clients faithfully.”

Full Article and Source:
Martha Knight, ERA Correspondent: Peffer Argues Own Case for Mother’s Return

Peffer Case Summary

In the summer of 2007 Rita Denmark, a widow living with one of her Bradford daughters, was a fit 76-year-old who walked miles every day. She had cross-country skied in the winter. Her memory was not what it used to be, so she had given another local daughter, Holly Peffer, durable power of attorney responsibility, and Peffer managed her finances and bills in consultation with her mom.

An Office of Aging social worker recommended that a guardianship be arranged. The Orphan’s Court of the McKean County court system would be the court to grant that.

Accordingly Peffer set about getting guardianship in place by filing the appropriate petition in Orphan’s Court.

Even as the procedure was getting underway, two other adult children stepped in. The other Bradford daughter with whom she had been living took Mrs. Denmark to Florida to visit her son.

Early in that visit Mrs. Denmark was taken to see an attorney who had been lined up by the son she was visiting. She signed an affidavit which indicated that she had moved to Florida.

In more recent actions in McKean County Orphan’s Court, Peffer has maintained that Mrs. Denmark was tricked into her part in the proceedings, and had no intention of moving to Florida—only meaning to visit a son she had had little recent contact with. Peffer is convinced her mother was tricked into saying she was a Florida resident.

She considers the guardianship proceedings in Florida to have been based on a fraud on the court there, and the representations in McKean County Orphan’s Court to have been fraudulent as well, all intended to support the contention that the Florida court had jurisdiction in the matter.

Peffer says jurisdiction should have remained in McKean County, and the decision of the Florida court should be declared a nullity or should be overturned somehow.

As for Mrs. Denmark, she has been appointed a “professional guardian” who has worked with the two Florida attorneys. They placed Mrs. Denmark in an assisted living facility (or possibly a nursing home). Also, the attorneys and guardian got court approval of a no contact/no visitation order which keeps Peffer from having access to her mother.

“My mother is being criminally confined behind the locked and secured doors of a Florida elder care facility,” Peffer wrote to U.S. Attorney David J. Hickton, based in Pittsburgh, in September. “She is being held against her will and she wishes to return home to Pennsylvania. There is substantial, clear and convincing evidence that my mother is a lifelong domiciliary and resident of Pennsylvania.”

The Florida guardian, Jetta Getty, assisted by others, came to Bradford and took custody of Mrs. Denmark’s valuables, antiques, car and jewels. Previously they had obtained Peffer’s assistance in packing up some of the items, and transferring over $240,000 in Mrs. Denmark’s funds from Hamlin Bank to a Florida bank.

Peffer says she cooperated with Getty because Getty told her this would be the most efficient way to get things in order so that Mrs. Denmark could some home.

Was there fraud upon either or both courts? How could that be determined? Peffer, representing herself, maintained that there was fraud, and offered case law to support such a conclusion.

Peffer’s hopes for her mother’s return are pinned to the judge’s decision. But there are others interested in the outcome as well: activists who are seeking changes in how guardianship of adults is handled, across the United States.

Full Article and Source:
Martha Knight, ERA Correspondent: Guardianship of Adults Can be Tricky and Contentious, Local Family Fights

NASGA Members Support Holly Peffer at Hearing

Among those who attended last Friday’s hearing in McKean County Orphan’s Court, and paid close attention to what Senior Visiting Judge H. William White said and did, were several members of the National Association to Stop Guardian Abuse (NASGA).

Although they did not participate in the hearing, they did sit in the small court room where it was held, and handed out large pin-back buttons to anyone who wanted one. During a break in proceedings they huddled with the litigant who was present, Holly Peffer, who is seeking to have a Florida guardianship over her mother, Rita Denmark, dissolved, and the elderly widow returned to Bradford where she had lived nearly all her life.

On their website and in their literature, NASGA describes sequences of events and procedures used to gain total control over the wards placed in the care of guardians, and includes unethical attorneys and corrupt judges among the players in a system gone awry, as they see things.

Full Article and Source:
Guardianship Abuse Group Following Rita Denmark Case

If You Ask Me…

Guardian. Someone who protects.

Children need permission from a parent or guardian, to take part in field trips or other activities. Health care providers need the authorization of a parent or guardian in order to treat a patient who is a minor.

Those are situations that come to mind when we think of guardians. But there are guardians of adults, too. And sometimes there are children who are guardians of parents.

I don’t mean that minors can be guardians of parents, only that “adult children” can encounter situations in which their elderly or inform parents are in need of that kind of help. It’s a role reversal that is becoming more common than it used to be, what with life spans being greater.

“We need a guardianship bill!” was a mantra I heard at gatherings of the New York State Association for Retarded Children, Inc., decades ago. When first I heard that statement I didn’t know what it was about. But soon someone explained it to me.

NYSARC included numerous people who were highly qualified to explain guardianship and other legal issues. The one who laid it out for me was Augustus M. Jacobs, a courtly gentleman indeed. His specific court was the New York State Supreme Court, First District (Manhattan). He was one of the founders, in 1949, of the first organization of its kind, the Association for the Help of Retarded Children. I have his AHRC lapel pin.

The guardianships NYSARC was talking about were those in which persons with mental retardation would reach the age of majority but would not be able to handle all the responsibilities that come with adulthood. Their parents wanted to be able to continue to protect and guide them—to act as their guardians.

Most such parents expected that they would predecease their offspring. Some conditions causing mental retardation also included other health challenges which tended to shorten life spans, but even so, parents realized there probably would come a time when they would not be around, or able, to carry out their guardianship functions.

Often standby guardians were named. For mentally retarded adults, usually a parent or parents were named guardian/s, and often a sibling was appointed standby guardian. There could be other standby or contingency arrangements made, too. A local chapter of NYSARC would be one possible choice. The reasoning was that such an entity would have a longer “lifetime” than an individual. Chapters and NYSARC itself had guardianship committees; I served on several.

Then there are the guardian arrangements in which adult children assume responsibility for parents. Most of us know some of those guardians and their parents.

This isn’t the same as being “attorney-in-fact” or having the responsibility of power of attorney. That role is one in which the grantor voluntarily and knowingly gives the POA that authority, so that the POA can act for the grantor as needed, or maybe regularly. Typical duties and powers would be handling money and other assets, paying bills, selling property and making living arrangements.

Ordinarily the grantor can revoke or change power of attorney arrangements at will. Also, the grantor is still free to make decisions too, to pay bills and sign checks and buy things.

Guardianship arrangements may not always be voluntary on the part of the person being “guarded.” Sometimes that individual is too impaired in mental function to participate in the decision. Courts grant those non-voluntary guardianship arrangements based on a showing that the individual is incompetent. The court must find the proposed guardian to be suitable. Usually the person petitioning the court to appoint a guardian for someone is also proposing to be that guardian; but sometimes the petition asks the court to appoint another person or entity.

Would you be surprised if I told you some guardians of adults are untrustworthy? Probably not. There have been high profile cases in the news, where the rich and famous were victimized, usually by those close to them, through abuse of guardianship prerogatives.

There’s an organization devoted to helping those victimized by guardianship abuse, and to seeking legislation and court rulings that will help prevent such abuse. National Association to Stop Guardian Abuse has a website you can Google for.

Some of NASGA’s activists were in McKean County recently to monitor court proceedings related to the guardianship of Rita Denmark, a Bradford widow her daughter alleges to have been virtually abducted to Florida and wrongfully placed under guardianship there and then placed in a secure care facility and her assets made off with.

Sad. Worrisome. The court may rule on some aspects of that case later this week.

Source:
If You Ask Me…by Correspondent Martha “Marti” Knight

See Also:
Help Bring Rita Denmark Home

National Silver Alert Act (S.557)

U.S. Senator Charles E. Schumer today announced that he is pushing legislation to create a nationwide network for locating missing adults and senior citizens with Alzheimer’s, dementia, and other mental impairments. The Silver Alert Act would create a program, modeled after the AMBER Alert, which would provide federal coordination and assistance through the Department of Justice to local and state law enforcement to assist efforts to locate missing senior citizens across the country.

Schumer said today that a nationwide alert network is critical because missing adults can cross state and county lines.

Senator Schumer is sponsoring the National Silver Alert Act (S. 557), which will encourage and integrate systems throughout the United States to help identify and locate missing seniors with cognitive impairments. The bill will also authorize grants for these organizations. The bill has already passed the House of Representatives.

Full Article and Source:
Schumer Pushes for Nationwide Alert System to Locate Missing Adults With Alzheimer’s Disease; Almost 22,000 Seniors in Rochester Finger Lakes are Affected