Guardian Gets Prison in $92K Theft From 12 Nursing Home Residents

A former Omaha attorney was sentenced Thursday to 18 months in federal prison for stealing $92,000 from 12 nursing home residents she was appointed to protect.

U.S. District Judge Lyle Strom sentenced Kim Erwin-Loncke, 47, to the prison term plus three years of supervised release.

Strom also ordered her to pay $92,608 in restitution. Douglas County judges had appointed Erwin-Loncke guardian of several disabled or otherwise incapacitated nursing home residents.

From August 2008 to November 2010, the then-attorney took advantage of those clients by transferring their Social Security payments to her own bank accounts, U.S. Attorney Deb Gilg said.
The Nebraska Supreme Court disbarred Erwin-Loncke in November 2010. Strom ordered Erwin-Loncke to report June 24 to begin serving her prison term.

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Guardian Gets Prison in $92K Theft From 12 Nursing Home Residents

Editorial: Protect Against Nebraska Guardianship Abuses

In 2010, a World-Herald investigation found that more than 12,400 incapacitated Nebraskans rely on a guardian to oversee their health, a conservator to handle their financial matters or a guardian-conservator to handle both.

In some instances, The World-Herald reporting uncovered troubling abuses. Especially outrageous was the case of Dinah Turrentine-Sims, a court-appointed guardian-conservator who stole more than $400,000 from eight of her wards in Douglas County.

In response, a state task force proposed sensible changes. Key tools included requiring background checks, bond insurance for estates over $10,000 and quicker cataloging of assets. In 2011 the Legislature included those as part of a practical reform package, and the Nebraska judges and court personnel have worked hard to implement the needed safeguards.

In his annual State of the Judiciary address to the Legislature last week, Nebraska Supreme Court Chief Justice Michael Heavican said the increased monitoring under the reforms “has uncovered further instances of theft and misuse of funds by guardians and conservators.”

In addition, he said, the Supreme Court is creating a permanent Commission on Guardianships and Conservatorships to provide an ongoing vehicle for maintaining the focus on this important issue.
A cautionary note is needed on one of the chief justice’s points, however. He said the new requirements involving guardianship forms and procedures have increased the workload of court staffers, and the Supreme Court is working with the Nebraska State Bar Association to see how the process can be simplified.

No one doubts the hard work by Nebraska’s courts, and if practical ways can be found to help court staff without lessening the safeguards to protect incapacitated Nebraskans, fine. But there needs to be no doubt on what the priority should be: maintaining the full strength of the protections for these vulnerable citizens, as set forth in the 2011 reform legislation.

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World-Herald Editorial:  Protect Against Nebraska Guardianship Abuses

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Nebraska: Chief Justice:  Guardianship Initiates Show Success

Nebraska Chief Justice: Guardianships Initiatives Show Success

Tighter court oversight of guardians and conservators in recent months has exposed cases of theft and misuse of funds, Nebraska’s top judge said Thursday.

Chief Justice Michael Heavican said changes to state law made in 2011 are providing more protection for vulnerable adults in Nebraska.

But he said the court system is continuing to look for ways to simplify reporting requirements for guardians without weakening protections.

Some guardians have complained that the new requirements are too onerous, especially for spouses.

Heavican touched on the guardianship improvements in his State of the Judiciary speech to the Legislature.

The guardianship changes were passed in response to problems uncovered by The World-Herald. In the most egregious case, Dinah Turrentine-Sims, a court-appointed guardian-conservator, was able to steal more than $400,000 from eight of her wards in Douglas County.

Full Article and Source:
Nebraska chief justice: Guardianship, juvenile probation initiatives show success

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Nebraska Judge:  More Guardianship Oversight Caught Theft, Misuse of Funds

Nebraska Judge: More Guardianship Oversight Caught Theft, Misuse of Funds

Tighter court oversight of guardians and conservators in recent months has exposed cases of theft and misuse of funds, Nebraska’s top judge said Thursday.

Chief Justice Michael Heavican said the changes made in a 2011 law are providing more protection for vulnerable adults in Nebraska.

The law was passed in response to problems uncovered by The World-Herald.

Heavican touched on the guardianship changes in his annual State of the Judiciary speech to the Nebraska Legislature.

Source:
Judge: More guardianship oversight caught theft, misuse of funds

Nebraska Supreme Court Appoints Permanent Commission on Guardianships and Conservatorships, co-chaired by Douglas County Court Judge Susan Bazis and Nebraska Court of Appeals Judge Francie Riedmann

Friday, December 21, 2012

 

The aging of the baby boomer generation is expected to cause a dramatic growth in guardianships and conservatorships in Nebraska over the next two decades. In response to the challenges this increase will cause in the legal community, Chief Justice Mike Heavican and the Nebraska Supreme Court today appointed a Guardian/Conservator Commission to ensure both the personal and financial safety of vulnerable adults under guardianships and conservatorships throughout the state.

The Supreme Court Commission on Guardianships and Conservatorships will be co-chaired by Douglas County Court Judge Susan Bazis and Nebraska Court of Appeals Judge Francie Riedmann. Commission members are listed below.

In response to an unfortunate incident in which a Omaha conservator committed fraud against several wards and other abuses noted across the state, Chief Heavican formed a Task Force on Adult Guardianships and Conservatorships as a temporary measure in 2010. The Task Force identified shortcomings in guardianship/conservatorship oversight practices. The Legislature and the Supreme Court stepped up to improve accountability through laws and enforcement procedures which increased protection of the person and assets of court-supervised adults. The Guardianship Reform Act of 2011 was sponsored by Senator Colby Coash and unanimously passed to become effective January 1, 2012. The Supreme Court adopted new rules to increase accountability for those legally entrusted to provide for the financial and personal well-being of Nebraska wards and protected persons.

The Task Force was discharged after making its report and recommendations. The newly-formed, Supreme Court Commission on Guardianships and Conservatorships will be more long-term, and will have increased participation by judges, clerk magistrates, and members of the Nebraska State Bar Association’s probate section, the State’s Unit on Aging, regional and state elder-care entities, statewide developmental disability serving entities, law enforcement, the banking community, and guardians and conservators.

The Commission’s purpose is to engage in continuing analysis and study of statutes, court rules, and court procedures relating to guardianships and conservatorships; to examine the challenges these laws and procedures pose for court staff, the judiciary, the practicing bar, vulnerable adults and children and their legal guardians and conservators, and other professionals and service providers working with protected persons and wards; to propose solutions or improvements both within and without the judicial branch in response to such challenges; and to support the implementation of the recommendations of the Commission which the Nebraska Supreme Court approves.

Chief Justice Heavican, in his 2012 State of the Judiciary address, noted that “None of us is naïve enough to believe that elderly persons will no longer be subject to abuse. But the statutory changes made by the Legislature, which are being implemented by the judicial branch, will provide for better checks and balances.” He added, “The Nebraska Supreme Court will continue to make every effort to ensure that these legislatively mandated changes to guardianships and conservatorships will be effectively administered.”

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Supreme Court Appoints Permanent Commission on Guardianships and Conservatorships, co-chaired by Douglas County Court Judge Susan Bazis and Nebraska Court of Appeals Judge Francie Riedmann
 

Nebraska Woman Fighting Guardianship Law

A Nebraska law designed to prevent abuse of vulnerable citizens by their guardians has gone too far, according to Margaret Smith of Broken Bow, and she wants it repealed.

“This law is very cruel and unnecessary,” Smith said. “It made no allowances for people who had been married for a lifetime. It has the same regulations as if being a guardian for someone you didn’t even know.”

LB157, also known as the Guardianship Reform Act of 2011, passed unanimously in the Nebraska Legislature. The author of the bill was District 27 Sen. Colby Coash of Lincoln. Gov. Dave Heineman signed the bill in February 2011, and it took effect in January.

Margaret has been the guardian for her husband, Bob, since March 2006 when he was hurt while working at a cattle sale in Broken Bow. He hit his head on the concrete and even though he regained consciousness two months later, he remains physically and mentally disabled and lives in a nursing home.

At the time of the accident, Margaret already had power of attorney for her husband’s medical care, but because he couldn’t sign his name to grant her power of attorney over his finances, she did the only other thing she could — she got a guardianship of him. With that, she could continue to manage the couple’s business.

In February, when Margaret went to the judge’s office to turn in her annual report regarding her husband’s condition, she was given a large stack of papers containing new regulations and forms she needed to fill out.

“I got as far as the paragraph that said I would need a court order to take any money out of our joint accounts and took it all to my attorney,” Margaret said.

Some of the 16 mandates of LB157 include that funds of the guardian and ward should not be co-mingled. A guardian will take no money out of the shared accounts by any means, for any purpose without a court order, and guardians are required to use specific forms downloaded from the Nebraska Supreme Court’s website. In addition, guardians are required to pay a $5 fee to file required reports.

Until this law passed, Margaret said she didn’t have a problem. Now she said believes she needs a court order to buy a tube of toothpaste from the joint bank account she shares with her incapacitated husband.

Full Article and Source:
Broken Bow Woman Fighting Guardianship Law

Why Every Court Needs Guardian/Conservator Fee Guidelines

Over the last several years, I have watched the media highlight stories of financial exploitation by a guardian or conservator, all occurring under the watch of a probate court. While in some cases, the issue was one of outright theft, the vast majority of complaints appear to be around the issue of excessive fees that quickly diminish the estate of the protected person. Media attention has led to significant conservatorship reforms in several states (see our State Task Force Activities section).

In Nebraska, the Supreme Court launched a review committee to make recommendations on guardianship and conservatorship reform. The committee was created following a 2010 series of articles in the Omaha World Herald documenting multiple cases of theft by a court-appointed guardian-conservator.

In Arizona, the Supreme Court’s Committee on Improving Judicial Oversight and Processing of Probate Matters released a Final Report advocating major reform of their guardianship system. The Committee was created in 2011, following a series of Arizona Republic stories detailing the stories of several people who lost much of their estates to attorneys and fiduciaries appointed to protect them.

This week, the San Jose Mercury News ran a three-part series focusing on “excessive” conservator fees in the Santa Clara County Probate Court. The media posting includes a video (Loss of Trust) highlighting the case of Denny Reed, a 37-year old man who lost the majority of his estate after being placed under a court-appointed trustee. By the court’s own admission, it does not have fee guidelines that could be used to rein in the fees charged by conservators and trustees. To the court’s credit, it is working diligently to develop guidelines and processes to protect the estates of protected persons. In my experience, the lack of fee guidelines in probate courts is not unique to Santa Clara. In fact, I hazard to guess that the vast majority of courts that oversee guardianships and conservatorships do not have established fee guidelines or fee caps. No court wants to be in Santa Clara’s shoes—yet it is a real possibility for many.

Rather than dwell on the underlying issues that have hampered conservatorship monitoring and the establishment of appropriate fees and services, this is an opportunity to present some of the more typical ways in which courts set fee structures (see our section on Fees and Services for a more thorough discussion.) Generally, courts tend to rely on several approaches when setting fee guidelines:
1.Courts have set hourly rates for guardians/conservators—often relying on a fee workgroup and local surveys as the basis for pay scales. For instance, Florida’s 13th Judicial Circuit has a Guardian Fee Workgroup that used a statewide fee survey to establish pay scales, based on level of experience.
2.In combination with fee rates, service caps have been put in place to ensure that excessive hours are not billed for routine tasks. For example, the Florida court cited above limits billable guardian duties to two hours of bill paying per month. Texas’s Travis County Probate Court took a similar approach in its Standards for Court Approval of Attorney Fee Applications. The Standards outline court-approved fees and provides guidelines for specific types of charges, including travel, legal research, preparation of fee applications, conversations with court and clerk staff, copies and faxes, and deliveries.
3.Some courts allow fees to be based on the percentage of assets or income. For example, the Superior Court of California, County of San Francisco, Uniform Local Rules of Court (Rule 14) allows fees to be based on hourly rates with supporting time record, or fees may be requested based upon a guideline of 1% of the fair market value of assets at the end of the accounting period or 6% of income, in the Court’s discretion.

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Why Every Court Needs Guardian/Conservator Fee Guidelines

NE Woman Ordered to Pay Back $29K for Fraud

A North Platte woman will have to pay back almost $29,000 in Social Security benefits she took from her ward.

The U.S. Attorney’s Office in Omaha says 51-year-old Peggie Robinson was also sentenced to four years’ probation for the fraud.

The prosecutor says Robinson was appointed in 2006 by Scotts Bluff County Court to be the legal guardian of an incapacitated woman who lived in a Gothenburg nursing home. Robinson was to have set up a trust account to receive the woman’s Social Security benefits but instead deposited the money into her own bank account.

The prosecutor says Robinson passed those regular benefits onto the woman but used $29,000 in Social Security money that was awarded to the woman for a previous underpayment for her own expenses.

Full Article and Source:
Woman Ordered to Pay Back $29,000 for Fraud

Nebraska: Guardianship and Conservatorship Changes for 2012

For individuals filing for guardianship starting this year the new law and court rules require the filing of a national criminal history record check, a check of the Abuse and Neglect Registries for adults and children, a check with the sex offender registry, and a credit check, 10 days before the hearing to appoint a permanent guardian of an adult. The information will not be disclosed to non-parties without the court’s written consent. The respondent (proposed ward) is certainly a party and the term party could be argued to include others who participate in the proceeding, e.g. an interested party who objects to a petition.

If the order of appointment is issued this year the new guardian or conscervator much provide a number of forms before getting their letters from the clerk’s office. A Proof of Restricted Account is supposed to be filed within 10 days to prove establishment of any required account. There are information sheets, an inventory with an affidavit of due diligence, and any required bond. The rules also ask for a form from financial institutions holding accounts of the ward showing that the order for appointment was provided to them. The requirement to attend a class within 90 days of appointment remains the same.

All guardians and conservators, even thouse appointed years ago, are now required to gain court approval before making ATM withdrawals or receiving cash back on a debit card. They must also file their Letters with the Register of Deeds in any county where the ward has a real property interest. Reporting forms and requirements have also changed, and all reports will receive some level of third party review.

These, along with other new requirements, are designed to provide additional protection to wards. They will also make the entire process more expensive and time consuming. I know a number of professionals who says that they are either going to stop working in this area altogether or raise their fees substantially, making pre-planning alternatives like durable power of attorney documents even more appealling. Court staff, guardians, wards, and their legal counsel will all be working through the additional guardianship requirements throughout the coming months.

Full Article and Source:
Guardianship and Conservatorship Changes in Nebraska for 2012

Nebraska Chief Justice Outlines Efficiency Effort

Nebraska Supreme Court Chief Justice Michael Heavican outlined plans for a new, regional approach to court services designed to improve efficiency.

Heavican told lawmakers in his fifth annual State of the Judiciary address that the courts are launching a series of pilot programs this year, with help from the National Center for State Courts.

The chief justice said he anticipates a rise in the number of guardianships and conservatorship cases, driven by the state’s growing elderly population. While the total population of the state is expected to grow 11 percent by 2030, he said, the number of Nebraskans between the ages of 70 and 79 is expected to grow by more than 80 percent.

Heavican said the courts have adopted the requirements of a new state law requiring background checks for guardians and conservators, who make decisions for elderly relatives or others who are incapacitated. The law, which went into effect Jan. 1, also requires that conservators post bonds when the assets of their wards are greater than $10,000.

“None of us is naïve enough to believe that elderly persons will no longer be subject to abuse,” Heavican said. “But the statutory changes made by the Legislature, which are being implemented by the judicial branch, will provide for better checks and balances.”

Full Article and Source:
Nebraska Chief Justice Outlines Efficiency Effort