Elder Protection and Abuse Prevention Act

MANY CASES AROUND THE COUNTRY DEMONSTRATE THE NEED FOR legal reforms to prevent individuals suffering SEVERE cognitive impairment from being financially exploited at the time they execute wills, deeds, trusts, POAs and other important legal/financial documents — and also prevent the ruinous litigation which often results under such circumstances.

In order for legislation like this to be effective, it needs to put in place specific safeguards like the interview protocol recommended here, which addresses what most medical and legal authorities recognize but fail to adequately address, namely (1) cognitive impairment is a disability, and (2) the more severe the impairment, the greater the disability and susceptibility associated with it.

This interview protocol is based upon the following five steps
• STEP 1: Use a CHECKLIST to identify situations which involve individuals with SEVERE cognitive impairment and so require the rest of the protocol to be followed
• STEP 2: Have an INDEPENDENT examiner ask the transferor OPEN-ENDED questions to learn what business, if any, he wants or expects to conduct at this time
• STEP 3: Have an INDEPENDENT examiner ask the transferor to provide details about what he expects the document to include
• STEP 4: Have an INDEPENDENT examiner ask the transferor questions which others might reasonably want to ask if they were present, including questions about the transferor’s understanding of the suspicions that his signing the document might raise and the transferor’s ability to address those suspicions
• STEP 5: Have an INDEPENDENT examiner explore potential conflicts between the transferor’s expectations and the content of the document

Full Article and Source:
Elder Protection and Abuse Prevention Act

Note: For more information, email Tom Fields at TVFields@oh.rr.com

Editorial: Circle the Wagons; You Could be Next!

As I look back over the years of my life I find that I have been brought full circle back to my childhood.

I was just a young child when television and movies were still in black and white, when the “western” was a theme of more programs and movies than not. A time when “circle the wagons” and “white-man speak with forked tounge” meant little or nothing to me; after all, I am caucasian and it was just a tv show or movie.

I was, of course, a bit older when the 1960s and the Civil Rights Movement was in full force, when oppression and discrimination of the races was “in our face.” Then there was the 1970s with Vietnam and a Washington, D.C., administration that quit their jobs before being faced with prison for their crimes. Oh, these were reassuring times alright, and far more reality-based than the cowboys and Indians on the silver screen.

So what does all this have to do with today, when I am now older than I ever dreamt as a young child?

I now know what the Indian meant when he said, “white man speak with forked tounge”. I now know what the oppression, discrimination and retaliation of the Civil Rights Era meant to those who were oppressed and discriminated. How do I know these things as an aging caucasian female? Because my mother is under a court-appointed guardianship shoved into a nursing home against her will just like the American Indians who were guardianized by their treaties and shoved onto the reservations, only to be lied to, neglected and exploited by the very “forked-tounge” establishment who promised them care and protection.

I am utterly amazed and disappointed that our politicians can proclaim to possess concern for the elderly, concerned that they will be abused, neglected and exploited, yet when I reach out for help and protection for my mother from those in a position who say they care and who have the authorty to do something about the injustice, I am met by a bunch of “forked-tounge” speaking establishment types who are more than content to enjoy their own freedom and liberty, while depriving my mother of her freedom and liberty.

A bit of advice in close, “circle the wagons” folks: You might be next, because guardianship abuse is on the rise, it is nothing new I have since learned, and it is likely coming to a loved one near you sooner than you might think.

Jane Branson
Hillsboro
Member, NASGA – National Association to STOP Guardian Abuse

Source:
Circle the Wagons, You Could Be Next

See also:
Mollie Florkey, Ohio Victim

Judge in Mollie Florkey Case Recuses!

Whistleblower Accuses Hospice Corp. of Medicare Fraud

A former Vitas Healthcare Corp. manager has accused the hospice chain of defrauding the federal government by conspiring with health insurers to enroll Medicare patients who weren’t dying.

Vitas, a unit of Cincinnati-based Chemed Corp. (CHE), is the largest U.S. provider of hospice care, which has attracted government scrutiny as its Medicare-covered patients have doubled to 1.1 million over the last decade.

Chemed fell 15 percent, the most since April 2008, to $49.10 at 10:37 a.m. in New York.

The allegations came in a lawsuit unsealed last week in U.S. District Court in Dallas. Vitas spokeswoman Kal Mistry said the company “cannot comment on pending litigation.”

In the same court, the Department of Justice is seeking internal Vitas documents in an investigation focused on alleged abuses of federal health-insurance programs. The government has told the court it suspects Vitas of “an extensive scheme” to defraud Medicare and Medicaid of “hundreds of millions of dollars” by falsifying records and hospice certifications.

Vitas has “consistently been in compliance with Medicare and Medicaid rules,” Mistry said.

The newly unsealed suit was filed by Michael Rehfeldt, a former branch manager for Vitas in San Antonio, who is seeking damages for the government as a whistleblower under the U.S. False Claims Act, which entitles him to part of any recoveries. Such claims are also called qui tam suits.

“False certifications, fraudulent billing and cost shifting to the United States constitute a widespread, systematic practice endemic to Vitas,” Rehfeldt’s suit alleges.

Full Article and Source:
Whistleblower Accuses Chemed Unit of Medicare HMO Conspiracy

Ohio Launching Elder Abuse Prevention Shelter

A local retirement center is launching the first elder abuse prevention shelter in Ohio and one of the first in the nation.

Cedar Village Retirement Community announced the creation of the Shalom Center for Elder Abuse Prevention.

“As a faith-based organization, our commitment to the community and to our elders reaches far beyond our walls,” said Carol Silver Elliott, Cedar Village’s CEO and President. “This is our obligation and part of our social and community responsibility.”

Until now, police, social service agencies, hospitals and other organizations in Southwest Ohio have not had appropriate places to refer victims of elderly abuse. The Shalom Center for Elder Abuse Prevention will serve as a safe harbor.

The Shalom Center will care for abused seniors, aged 65 and over, from Hamilton, Warren, Butler and Clermont counties. Services will include medical, nursing and therapy services if needed; meals; legal services; social work; pastoral care; and social, recreational and educational programming.

Full Article and Source:
Elder Abuse Prevention Shelter Launching in Warren County

Ohio Attorney Loses W Va. License

As he did in his home state a year ago, an Ohio attorney has lost his license to practice law in West Virginia.

The state Supreme Court on Nov. 22 annulled the license of James R. Henry. The Court’s action mirrored that of Ohio’s High Court when it ordered Henry’s permanent disbarment last December after an investigation found he mishandled the cases of eight former clients during a three-year period.

Records show in disbarring Henry, the Ohio Court said his failure to perform work on client’s cases after he was paid a retainer was “tantamount to theft of the fee from the client.”

‘A pattern of neglect’
According to the Ohio Court’s Dec. 22 order, Henry, a sole practitioner in Gallipolis, was charged with 25 violations of the Rules of Professional Conduct by its Board of Commissioners on Grievances and Discipline. Though not specifically indentified, the order says Henry, among other things:

* Informed a father from Indianapolis in May 2008 four days too early about a hearing in Gallia Court of Common Pleas’ Juvenile Division on his petition for sole residential parent and guardian of his son. The father had to later file a pro se motion for immediate or emergency change of custody when Henry missed the deadline to file a motion for a final hearing or agreed order.

* Failed to keep a man updated on the status of a potential lawsuit against his former employer. The man paid Henry a retainer of $2,500 in February 2007, and did not hear from him after September 2009 due to Henry’s phone getting disconnected.

* Failed to return over $1,500 to a couple in July 2009 after they sent him certified letters saying they no longer wanted him to complete a trust for them. The letters were sent after repeated calls made to his office informed them his voice mailbox was full.

* Closed his office without giving a woman notice he failed to complete the estate settlement for her late husband’s estate after paying him $500. Between the time she retained him in April 2009, and he closed his office that December, the woman made repeated calls to his office only to have them go unanswered or him tell her he’d be completing the work soon.

Full Article and Source:
Ohio Atty Loses WVa License

Judge in Mollie Florkey Case Recuses!

Highland County Probate Judge Kevin Greer has recused himself from a case involving a dispute over the guardianship and care of a Hillsboro woman. The recusal occurred following a Nov. 22 hearing regarding the case, according to court documents.

Greer’s recusal comes after Jane Branson filed suit in U.S. District Court for Southern Ohio against Greer, her brother, her mother’s attorney, and Ohio Gov. John Kasich. Representing herself, Branson claimed in her suit that her mother, Mollie Florkey, should be released from a nursing home in which she was placed, and also claims she has been denied proper access to Ohio’s courts.

Greer said Monday he could re-qualify himself to continue hearing the case based on how, and how quickly, Branson’s federal lawsuit is resolved. In the meantime, he has asked the Ohio Supreme Court to appoint a judge to hear Branson’s ongoing challenge to the care and guardianship of her mother.

But if the federal suit is resolved, Greer will likely re-qualify himself to preside over the case, because “I have a duty to the taxpayer to do my job” rather than paying a visiting judge to preside.

Branson has attempted to overturn Greer’s decision, as well as asking Greer to remove himself from the case, which he refused to do until now.

Also named in the suit is Hillsboro attorney J.D. Wagoner, who is Florkey’s attorney.

Full Article and Source:
Greer Recuses Himself From Case on Guardianship

See Also:
Jane Branson Files Suit on Behalf of Her Mother

Jane Branson Files Suit on Behalf of Her Mother

A Hillsboro woman is suing her brother, her mother’s lawyer, Highland County Probate Judge Kevin Greer, and even Ohio Gov. John Kasich over issues involving the legal guardianship of her mother.

Jane Branson filed the suit Tuesday in the U.S. District Court for southern Ohio. Representing herself, Branson claims in her suit that her mother, Mollie Florkey, should be released from a nursing home in which she was placed, and also claims she has been denied proper access to Ohio’s courts.

But records show she has long been involved in court in regard to a disagreement among her siblings over the guardianship and care of her mother. Records show that in 2002, Molly Florkey filed both a Living Will and a durable power of attorney form expressing her desire that her son, James Malott, be designated her guardian should she become incapacitated.

Those documents also reflect her desire to have another daughter, Helen Olberg, designated her guardian in the event her son was unable or unwilling to perform the duties.

In 2007, Malott and Branson both filed documents in court seeking to be named guardian of their mother. Greer, guided by Florkey’s living will and power of attorney forms, ruled in favor of Malott’s petition.

Since then, Branson has attempted to overturn Greer’s decision, as well as asking Greer to remove himself from the case, which he refused to do. She has also petitioned the Ohio Supreme Court several times to have Greer removed from the case. The court has turned down her request each time, most recently admonishing her not to file any additional requests on that subject.

In her suit, Branson claims she has been denied the ability to exhaust her access to the courts, and demands that her mother “be released (from a nursing home) and restored of her liberty, and, for all just and proper relief deemed appropriate by this court and under the facts and circumstances presented.”

Greer declined to discuss the merits of the case, but did say it was the first time in a 31-year career he had been sued.

Also named in the suit is Hillsboro attorney J.D. Wagoner, who is Florkey’s attorney. Wagoner said he was unable to comment at this time, and Malott’s attorney, William Peele of Wilmington, did not return a request for comment.

Full Article and Source:
Hillsboro Woman Sues Her Brother, Judge Greer Over Mother’s Situation

Note: Jane Branson is a member of NASGA

Jane Branson Files Federal Complaint

The case is being brought by Jane Branson, written on behalf of her 93-year-old mother, who is “an adult ward under court-appointed guardianship.” Branson – who is not the guardian – is acting as her own attorney (pro se) in the suit.

Highland County Juvenile and Probate Court Judge Kevin Greer brought the suit to the attention of local news media on Friday and provided copies of court documents. Greer, Hillsboro Attorney J.D. Wagoner, Ohio Gov. John Kasich, and James Malott – the court-appointed legal guardian of the 93-year-old – are named as defendants in the case.

Wagoner is the 93-year-old woman’s guardian ad litem, according to the court documents.

Greer said that the situation began with a 2007 case in Highland County Probate Court when he presided over a case to determine guardianship for the elderly woman. Branson had filed an application to be appointed guardian of the woman’s estate and person, which was denied. Branson made the appeal to Ohio’s Fourth District Court of Appeals, which upheld Greer’s decision.

According to the 2008 judgment from the court of appeals, Branson and Malott are two of the elderly woman’s four children. Malott is her power of attorney, and according to documents she filed with the Highland County Recorder’s Office, “In the event that [it] should become necessary for a guardianship of my person and or my estate, I request that the probate court appoint my attorney in fact, James D. Malott, as such guardian, without bond.” The court upheld Greer’s decision to appoint Malott, stating that under the Ohio Revised Code, because a guardian had been named in the power of attorney, the court had to appoint the person nominated (Malott) as long as he was competent, suitable and willing to accept the appointment.

“The court (Greer) was required to appoint Malott, absent a showing of incompetence, unsuitability, or unwillingness to accept the appointment,” the court of appeals wrote.”

Branson claimed in the appeal that she was more qualified to care for the woman, and that she had been caring for her for four years. “In Branson’s lay opinion, (the woman) was not getting appropriate care at the nursing facility (where she is now living).”

Malott testified, the court said, that the woman was “getting appropriate care at the facility.”

In the case filed with the federal court, Branson alleges that the 93-year-old, who she says suffers from Alzheimer’s disease and dementia, was “granny-napped” when she was placed in a nursing home by her court-appointed guardian, that she does not receive adequate care, and that she is “forcibly” kept from friends and family members.

Branson alleges that the elderly woman has been “unlawfully deprived, denied and restrained of her liberty;” denied due process; denied her right to appear in Ohio state courts; denied legal counsel; denied access to Ohio courts; and denied a right to a review or appeal process.

Among the prayers for relief requested in the suit, Branson asks for “an award of compensatory damages in an amount yet to be determined, an award of punitive damages where appropriate and in a sum sufficient to deter future like conduct by defendants,” and for attorney fees, costs and litigation expenses.

Full Article and Source:
Pro Se Complaint Filed in Federal Court Against Highland County Judge, Attorney and Gov. Kasich

See Also:
See 9/30/2011 Court of Appeals Decision

‘The Guardianship of Weller’

IN RE GUARDIANSHIP OF WELLER
2011 Ohio 5816
In the Matter of: Guardianship of Nicholas L. Weller.
Appellate No. 24337.
Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on November 10, 2011.

NEIL F. FREUND, Atty. Reg. #0012183, and KELLY M. SCHROEDER, Atty. Reg. #0080637, Freund, Freeze & Arnold, Fifth Third Center, 1 South Main Street, Suite 1800, Dayton, Ohio 45402-2017 and CAROLYN MUELLER, Atty. Reg. #0065533, Hall & Mueller, LPA, 3040 Presidential Drive, Suite 222, Fairborn, Ohio 45324, Attorneys for Appellant.
DAVID M. RICKERT, Atty. Reg. #0010483, 110 North Main Street, Suite 1000, Dayton, Ohio 45402 and DAN R. WARNCKE, Atty. Reg. #0061799, and JULIA B. MEISTER, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202, Attorneys for Appellee.

OPINION
FAIN, J.
{¶ 1} Appellant Nicholas Weller appeals from a decision of the Montgomery County Common Pleas Court, Probate Division, establishing a guardianship over his estate. Weller contends that the evidence does not support the trial court’s finding that he was incompetent to manage his estate.
{¶ 2} We conclude that this appeal has been rendered moot by the May 31, 2011 entry finding Weller restored to competency and terminating the guardianship. Accordingly, this appeal is dismissed as moot.
{¶ 3} On March 31, 2010, Nicholas Weller suffered a stroke at his residence in Montgomery County. He was taken to Kettering Medical Center for treatment. He was released from the hospital after a ten-day stay. He was checked into an assisted living facility by Janet Ward, a friend of Weller and Weller’s deceased wife. Weller refused to remain in the assisted living facility and returned home, where Ward arranged for in-home care. It was determined that Weller suffered from aphasia; or the inability to express himself or to understand the words of people speaking to him.
{¶ 4} Thereafter, Ward filed an application for appointment as guardian over Weller’s person and estate. Weller hired his own attorneys and proceeded to contest the need for the guardianship. Following protracted litigation and a hearing, the Probate Court determined that Weller was competent as to his person, but found him incompetent as to his estate. The Probate Court appointed attorney Christopher Cowan as guardian of the estate.
{¶ 5} On November 12, 2010, Weller appealed from the order subjecting him to a guardianship of his estate. Just prior to the August 2, 2011 oral arguments in this appeal, this court became aware that the Probate Court had issued an order Terminating Guardianship on May 31, 2011. Following argument, we permitted the parties to file supplemental briefs on the question of whether the entry terminating the guardianship rendered this appeal moot. Supplemental briefs on the mootness issue have been filed by Weller and the applicant, Janet Ward.
{¶ 6} Before we address Weller’s assignments of error, we must first consider the issue of whether the probate court’s order terminating the guardianship rendered this appeal moot.

Source:
In RE Guardianship of Weller

Ohio: Medicaid Won’t be Used to Pay Guardians for Developmentally Disabled!

The Ohio Department of Developmental Disabilities stopped seeking Medicaid funding to pay for protective services for thousands of adults after state auditors questioned the agency’s accounting for more than $1.3 million in program costs.

To avoid any interruption in services for the mentally retarded and disabled, Director John Martin said he is using non-Medicaid tax dollars to cover the expense.

“These are vital services,” he said.

An audit released by the Department of Job and Family Services questions the 2009 and 2010 expenditures but does not seek repayment of the funds paid to Advocacy & Protective Services Inc.

“DODD did not provide adequate documentation to demonstrate the expenditures, used as a basis for claiming Medicaid reimbursement, were for actual and allowable services provided by APSI,” auditors wrote.

The Department of Job and Family Services oversees Medicaid, the health-care program for the poor and disabled funded through state and federal tax dollars. Department spokesman Benjamin Johnson said DODD will have an opportunity to submit a more-detailed accounting before any decision about repayment is made.

Advocacy & Protective Services (APSI) is a private, nonprofit organization based in Columbus that is under contract with the developmental-disabilities agency to serve as a court-appointed legal guardian and trustee for about 4,800 Ohioans with mental retardation or other developmental disabilities.

Auditors are concerned about Medicaid funds paid to the department after it sought reimbursement of APSI administrative expenses. Specifically, auditors noted that invoices showed only total costs paid APSI and did not include a breakdown for specific services.

Medicaid, auditors previously noted, will reimburse for administrative costs, within limits, if a detailed accounting is provided to show the expenditures were permissible. Such documentation must include a description of the services performed, hours and date worked, and a signature of an authorizing agent. In addition, 90 percent of the expenditures must go to direct services.

Martin said APSI is paid a set fee to cover administrative expenses and there are no itemized invoices.

“DODD provided documentation of payroll and operation expenses that we believe demonstrate the costs were necessary and reasonable to provide required protective services to individuals with developmental disabilities,” the developmental-disabilities agency wrote in a response included in the audit.

The department also noted that APSI guardians are paid an average of $17.19 an hour, and the cost per individual served is about $1,079 a year.

“We feel confident that DODD is getting a good value for this critical service.”

Source:

Medicaid Won’t be Used to Pay Guardians for Developmentally Disabled

See Also:

Medicaid Dispute: Ohio State Audit Faults APSI (Advocacy & Protective Services, Inc.) With Spending of $1.3 mil