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Thousands Lose Right to Vote Under ‘Incompetence’ Laws

Wed, 04 Apr 2018 00:41:28 GMT

Like many people with autism, Greg Demer is bright but has difficulty communicating. He has a passion for the history of military aircraft, but he can’t quite keep up a conversation with new people. When he meets someone, he’ll quote from movies or ask them about their favorite Teenage Mutant Ninja Turtle.

His mother, Linda Demer, worried that he wouldn’t be able to make complicated decisions about his finances and health care once he turned 18. So, in 2005, a judge in Los Angeles, where they live, granted her conservatorship over Greg.

“I wanted to protect him,” she said of her son, who is now 31.

But in the conservatorship process, the judge also stripped away Greg’s right to vote. He was not only unfit to make decisions about his health care and finances, the judge ruled, but he also was unfit to participate in the democratic process.

In being declared “mentally incapacitated,” he joined tens of thousands of Americans with disabilities who every year lose their right to vote during guardianship proceedings, according to the California-based Spectrum Institute, an advocacy group for people with disabilities.

Laws in 39 states and Washington, D.C., allow judges to strip voting rights from people with mental disorders ranging from schizophrenia to Down syndrome who are deemed “incapacitated” or “incompetent.” Some of those states use archaic language like “idiots” or “insane persons” in their statutes.

The states that do not have similar restrictions are Colorado, Idaho, Illinois, Indiana, Kansas, Maine, Michigan, New Hampshire, North Carolina, Pennsylvania and Vermont.

Not only is there no agreement among legal and psychological experts over whether certain people with disabilities should be disenfranchised, but there is also no set standard for measuring the mental capacity needed to vote. There is a tension between protecting the integrity of the electoral process and the civil rights of a person under guardianship, said Dan Marson, a professor emeritus at the University of Alabama at Birmingham’s department of neurology.

“What should we require as a minimal standard?” he said. “There is not a clear answer.”

Should There Be Limits?

Fear of voter fraud is a primary reason why certain people with cognitive impairments are kept from the polls.

People with Alzheimer’s, for example, could be given a ballot while awake but only partially alert, and their caretaker or family member could cast it for them. Or a staff member at an assisted living facility could fill out or influence the ballots for dozens of people with severe cognitive issues.

“You would have people essentially voting twice,” said Pamela Karlan, the co-director of the Supreme Court Litigation Clinic at the Stanford University Law School. “Some people’s cognitive abilities are so impaired, they shouldn’t vote. They have no idea what’s going on.”

Karlan said people should not only express an interest in voting, but also understand what voting means.

A very small number of votes, and in some cases potentially “tainted” votes by people who don’t have the “mental capacity of understanding an election,” can make a big difference in a close race, said Paul Appelbaum, the director of the division of law, ethics and psychiatry at Columbia University’s department of psychiatry.

That sort of situation is not so farfetched, he said. A congressional race in Pennsylvania this month was decided by around 600 votes.

“Imagine if it became known that all the residents of a nursing home in the district voted in the election,” he said, “and many of them were so impaired that they didn’t know what the election was about or didn’t know what filling in a bubble on a form was.”

But in those examples of voter fraud, it’s not the person with a disability committing the crime — it’s the caretaker or family member, said Michelle Bishop, an advocacy specialist at the National Disability Rights Network based in Washington.

“We don’t strip someone of their rights in the name of protecting their rights,” Bishop said. “They are literally the last people in the U.S. who can get their right to vote stripped because of their identity. Having a disability does not mean you are not competent to vote.”

While some may not be able to make sound choices about their health care or finances, they can still understand and participate in the electoral process, Bishop said. The capacity to make choices depends on the situation.

Able Accounts Fund Disabled Childrens’ Futures

Mon, 26 Mar 2018 00:44:35 GMT

Children with special needs not only require considerable out-of-pocket medical and therapy expenses, if they aren’t able to live independently as adults, their families must financially prepare to support them for the rest of their lives.

However, when parents try to save for their disabled child’s short- and long-term expenses, they often jeopardize their ability to qualify for public benefits like Medicaid and Social Security Income, which are often needed to cover current expenses and allow a parent to care of the child.

That’s where 529 ABLE Accounts come in to assist. These tax-exempt accounts allow parents to contribute up to $15,000 per year. Other family members and friends may also contribute. However, contributions must be made using post-taxed dollars and are not tax deductible on federal income taxes.

If the account reaches a total of $100,000, the disabled individual will no longer be eligible to receive Social Security benefits, but they still may qualify for Medicaid.

Families apply for ABLE Accounts through their state of residency. Currently, about 30 states offer ABLE Account management. If you live in a state that doesn’t, federal law allows any American to apply for the account, and some states can accept applications from anywhere in the U.S. – according to the ABLE National Resource Center, Ohio, Nebraska and Tennessee are three of those states.

ABLE Accounts are similar to 529 college savings plans in that they offer tax-free investment growth and tax-free withdrawals when the funds are used to pay for qualified expenses. Qualified disability expenses include healthcare, assistive technology, education, housing and transportation, job training and support, and financial management that aren’t covered by insurance or Medicaid.

To Continue Reading Article Click Here :www.cuinsight.com

Abusive Probate Guardianship

Mon, 19 Mar 2018 00:55:09 GMT

The award-winning 2017 short documentary “Edith+Eddie” by Kartemquin Films and directed by Laura Checkoway follows the story of America’s oldest interracial couple whose love story is interrupted by a family feud and an administrative probate hearing. The movie highlights the loss of all human and constitutional rights as well as loss of all property rights once Edith is placed into an involuntary guardianship by a probate judge.

What can happen if you fail to settle a family dispute in a guardianship hearing in St. Louis and St. Louis County?

Once you take the matter to a probate judge, you risk losing your loved one to the system. The probate judge will appoint a third-party guardian, regardless of whether advance directives (durable power of attorneys, health care proxies, wills, trusts, etc.) are in place or not. The elderly ward is punished because his/her family “can’t get along.” Your loved one will lose all constitutional and fundamental rights (right to vote and the right to marry) as well as control of all property, life savings, personal treasures.

And that is not the worst of it: You will lose all input into your loved one’s care and the right to know of his/her medical condition. You will become powerless to help your loved one if the guardian decides to send him/her to a nursing home. Remember who is going to profit from the guardianship/conservatorship of your loved one: the guardian, the other fiduciaries, and your attorney.

To Finish Article Click Here: stlamerican

Bill to Update Guardianship Laws Clears Senate Panel

Tue, 06 Mar 2018 01:04:22 GMT

FRANKFORT, Ky. (AP) — A bill aimed at easing the state's growing burden as guardian of vulnerable elderly and disabled people moved a step closer to clearing the legislature Wednesday.

The measure, which seeks to ease the strain by ensuring that more relatives take on guardianship roles, won unanimous approval from the Senate Health and Welfare Committee, without any changes.

The bill goes next to the full Senate. The House approved it by a vote of 79-3 early this month.

It comes as the state struggles with growing caseloads of people who become wards of the state. The state is currently guardian for 4,448 wards, said Tim Feeley, deputy secretary of the Cabinet for Health and Family Services.

"We have a system where our guardianship program continues to grow and grow and grow, and we can't keep up with it," he told the committee.

State guardians are juggling caseloads of 65 to 70 wards apiece, about three times more than that recommended by national guidelines, Feeley said.

Under the current system, when families are fighting over who will serve as a relative's guardian, judges sometimes resolve the matter by appointing the state as guardian, the bill's supporters said.

Under the bill, judges would have to determine that "exceptional circumstances" exist to appoint the state as guardian.

The bill "makes the family have to work it out," said main sponsor Republican Rep. Daniel Elliott of Danville.

Unlike some neighboring states, Kentucky has no cap on the number of wards in its public guardianship program, and Feeley spoke against imposing such limits.

"I don't think a cap is the right idea, because there's always one more case that we need," he said.

Much of the discussion in committee focused on another provision, which would allow jury trials to be waived in guardianship matters when all participants consent to a judge deciding the case.

Supporters stressed that the right to a jury trial would remain intact for anyone wanting it. Kentucky is the last state to require jury trials in such guardianship matters, Feeley said.

To Read The Rest Of The Article: www.usnews.com

Change to Guardianship Laws Necessary, Families Say

Thu, 01 Mar 2018 01:07:39 GMT

CHEYENNE – Jessica Delancy’s mother might as well be a stranger.

It has been nearly a decade since Delancy’s mother, struggling with mental health issues, grappling with addiction and working two jobs, dropped then-6-year-old Delancy off at her grandmother’s house in Cheyenne.

She hasn’t seen or heard from her since.

Now, Delancy is a straight-A student at Cheyenne’s South High School, living with her grandmother, Debbie Bumford, in south Cheyenne. Her little brother, Robert Campbell, fondly known as “B-Man,” is thriving in sports and activities at Johnson Junior High.

But for many years, Delancy worried she’d see her mother out in public, or that her mother would come to take Delancy and Campbell away from the only stable home they’d ever known.

“For a while, I was really paranoid,” Delancy said. “And not having the power to do anything, it was scary.”

Delancy had reason to fear.

It is estimated that more than 10,200 Wyoming children live with a relative such as a grandparent, according to the 2010 U.S. Census .

But under current Wyoming law, caregivers such as grandparents, aunts and uncles don’t have the same consideration under the law as biological parents, even if they have legal guardianship.

It means that even though Delancy’s grandmother legally took over guardianship responsibilities, Delancy and Campbell could have ended up back with their mother if she moved to terminate Bumford’s guardianship rights.

And unless guardians such as Bumford can prove the biological parents “unfit” to care for the child – a difficult finding that often costs thousands of dollars and a large timeframe to prove – the kids go back with the biological parents, sometimes against their will.

This year, the Wyoming Legislature’s Joint Judiciary Committee is sponsoring a bill that would protect children staying with third-party caregivers, known in the bill as “de facto custodians.”

Under House Bill 15 , the child’s “best interest” would be considered in court proceedings when parents petition to revoke the guardianship of third-party caretakers.

Annie McGlothlin is leading the charge.

McGlothlin is a 63-year-old grandmother caring for her daughter’s 5-year-old son, Jayden. Jayden’s last name will not be used for his safety and privacy.

He came into McGlothlin’s care in July 2014 after his mother was brutally beaten by his father. Affidavits submitted in court outline how the pair abused alcohol and drugs, and the child’s mother suffered from mental health problems.

Years of on-and-off contact with the child’s mother and failed attempts at reunification made it obvious that McGlothlin and her husband, Steve, would become Jayden’s primary caretakers.

But any semblance of stability came crumbling down when Jayden’s father returned via letters and a court petition after a stint in prison, threatening to revoke the McGlothlins’ guardianship rights.

And even though the father was arrested earlier this month suspected of counterfeiting and charged with methamphetamine distribution, the McGlothlins still feared that he could’ve taken the child if he stayed out of prison.

That’s, in part, because case law in federal and Wyoming courts dictate that parents have a fundamental, constitutional right to raise their children.

The U.S. Supreme Court found in 2000 that parents have a constitutionally protected right to “make decisions concerning the care, custody and control of their children.”

In 2006, the Wyoming Supreme Court ruled that the court must first determine that a child’s natural guardian is not fit before considering whether it is in the child’s best interest to return to the biological parent.

In cases such as the McGlothlins’, those rulings mean the grandparents are forced to prove the parents are so unfit that they shouldn’t have custody rights at all.

“That’s obviously a very difficult action to take,” said state Sen. Tara Nethercott, R-Cheyenne, who is an attorney practicing civil and family law.

To prove a parent unfit, guardians have to present evidence that the person is incapable of caring for the child or there’s an unwillingness to do so.

But since the guardians can’t easily compel parents to take drug tests and often don’t have enough resources to hire private investigators, it’s nearly impossible to do.

Nethercott said the proposal would give guardians such as the McGlothlins and the children a say in the child’s fate without terminating the parent’s rights altogether.

Continue Reading Here:www.wyomingnews.com

Las Vegas Police Officer, April Parks, Others Indicted in Guardianship Case

Tue, 27 Feb 2018 01:09:18 GMT

A Las Vegas Metropolitan Police Department lieutenant was jailed Wednesday, Valentine's Day, caught up in a sweeping indictment involving elder exploitation.

Contact 13 Darcy Spears continues her years-long expose on guardianship abuse with this heart- breaking case.

He was supposed to serve and protect but instead he's accused of felony crimes for using Clark County's guardianship system to steal from the estate of a vulnerable couple. And this police officer is directly connected to others first exposed in our ongoing investigation of guardianship corruption.

Lieutenant James Thomas Melton is a decorated police veteran. As a sergeant, Melton received a group Medal of Valor and Purple Heart in 2009 for being wounded during a domestic violence call where a baby was pulled away from gunfire.

He was also a homicide detective and Metro's SWAT commander, making about $300,000 a year including benefits.

But Valentine's Day, a fall from grace as Melton was indicted by a grand jury and charged with stealing the life savings, over $700,000 from an 87-year-old widow suffering from dementia.

Court records claim Melton deceived the court after the victim died, representing that she was still alive so he could be named beneficiary on various accounts.

And Melton didn't act alone. The indictment shows he hired private guardian April Parks. Parks is already in jail facing over 200 felony counts after our investigation revealed she was double-billing and exploiting clients. Parks, her attorney Noel Palmer Simpson and former office manager Mark Simmons all face additional charges of exploitation for working with Melton.

According to the indictment, Melton is also accused of stealing the victim's Ford Explorer and taking $2,187.50 from her Disabled American Veterans Charitable Service Trust.

Continue Reading Here:www.ktnv.com

Senate Approves Guardianship Reform

Sat, 24 Feb 2018 01:18:36 GMT

The New Mexico Senate on Wednesday approved a two-pronged measure to provide “immediate relief” to those who have struggled for years with the abuses of a closed legal guardianship/conservator system, while creating the framework for a comprehensive system overhaul by 2020.

The unanimous vote, which sends the legislation to the House of Representatives, comes after what one senator called a “Herculean” effort to address failings of the current system – as evidenced by the recent embezzlement of millions of dollars from guardian or conservator clients of two now-defunct Albuquerque firms.

Under the measure approved Wednesday, court hearings that are now closed would be open to the public as of July 1. Family members would have more access to guardianship records and visitation wouldn’t be as easily thwarted by commercial guardians, who also have been accused in some cases of profligate spending and excessive fees. Nonfamily conservators would have to post bonds in case financial impropriety occurred.

Sen. Daniel Ivey-Soto, D-Albuquerque, one of the bill’s sponsors, said the phased-in measure would give “immediate relief and to make sure we make good on a promise (for more comprehensive changes). We will keep legislating on it.”

Sen. Jim White, R-Albuquerque, who led the reform effort, told his colleagues before Wednesday’s vote that the state’s courts need more time and money to enact the more costly aspects of the measure, such as bringing all existing cases up to compliance.

Judges approve petitions for guardianship and rely on annual reports to ensure their guardian or conservator appointees are doing their jobs.

Sen. Jerry Ortiz y Pino, D-Albuquerque, a longtime advocate of reform, recounted his experience on the Supreme Court commission appointed last year after publication of a Journal series, “Who Guards the Guardians?” The commission heard testimony from the public about the issue last year.

“It was painful to hear how dysfunctional our system has become … because we as legislators haven’t been giving the judiciary the tools to make the system work better.”

Over the months of study by the commission and several legislators, a consensus emerged: Reporting requirements to allow judges to assess a protected person’s welfare and assets aren’t stringent enough. Families are sometimes shut out of their incapacitated loved ones’ lives by guardians. And judges should improve oversight.

There was also the recognition that the judiciary is financially strapped and needs additional time and resources to implement more reform.

The judiciary, for instance, identified 24,000 existing cases in its computer system as being “sequestered” – meaning closed to the public. But it isn’t clear how many of those are adult guardianship cases, and there’s no way to easily tell in each case whether the protected person or the guardian is still alive.

“We don’t have that information, and that’s part of the issue before us,” White said. ” There’s not a database that keeps track of all those cases. There may be abuse out there that we don’t know about.” A provision of the bill, he said, would entail building a database of guardianship cases.

Continue Reading Here : www.abqjournal.com

Relatives Raising Children Because of Abuse, Neglect May Get Help from Kentucky Program

Tue, 20 Feb 2018 01:28:27 GMT

TAYLOR MILL, Ky. – Pennie Tackett's granddaughter, Karma Jordan, has aspirations to one day be in the Olympics.

Tackett hopes revival of a state funding program may put Karma on a path toward potentially realizing that dream.

During his State of the Commonwealth address Jan. 16, Kentucky Gov. Matt Bevin spoke of initiating budget cuts in a number of areas. However, what stood out for Tackett and likely other seniors raising grandchildren or family members on their own were areas where funding may actually resume. Specifically, a program called Kinship Care, which was suspended in 2013.

Kinship Care is a program that pays a monthly stipend to relatives who take in children removed from homes because of abuse or neglect. At the time, the program provided $300 per child per month to relatives.

Bevin has proposed $1.8 million for the program in fiscal year 2018-2019 and $3.3 million in fiscal year 2019-2020.

Tackett said receiving any type of assistance would have a dramatic impact, possibly even a life-changing one, on her.

Tackett, a resident of Taylor Mill, Kentucky, began taking care of Jordan, who is 8, after Jordan's parents were evicted in 2011. Tackett had applied for Kinship Care but was denied because she had taken over guardianship as opposed to the state placing Jordan in her care.

However, Tackett said she was informed she could potentially be eligible for funding when the program resumes.

Tackett works 20 hours a week with Mental Health of America where she serves as a family peer support specialist. She also provides caregiving for her husband who suffered a severe back injury years ago.

With the added financial pressures, Tackett and her husband eventually had to move from their home to an apartment. She said she has also had to stand in line for food and clothing.

"I know what it is like to not have your basic needs met," she said.

Through her involvement with Mental Health of America, Tackett said she is aware of the financial burdens many other seniors face.

The return of Kinship Care would mean a lot to any grandparent, she said.

Anne Wildman, associate director of human services for the Northern Kentucky Area Development District, is also aware of the many challenges seniors deal with.

When the Kinship Care program went away, that left a giant hole, she said.

"We have worked with a lot of relatives, specifically grandparents, raising grandchildren," Wildman said. "They don't want the children to go into a foster care system."

"(However) a lot of times these grandparents don’t have the financial means to support the individuals they are taking into their home."

Wildman said while other factors exist, the opioid epidemic has contributed to a steadily increasing rise in the number of grandparents taking over guardianship.

A lot of these parents are unable to take care of their children because of drug addiction and complications that go along with overdoses, she said. Incarceration and rehabilitation can also be involved.

Continue Reading Here : www.cincinnati.com

An Empowering Change in Legislation for Disabled Individuals

Tue, 06 Feb 2018 01:40:56 GMT

A new law, which took effect on Jan. 1, 2017, opens a door for individuals with disabilities—a door that’s been closed since 1993. When President Obama signed the 21st Century Cures Act (CCA) in late 2016, which, in part, authorizes the establishment of self-settled special needs trusts (SNTs), he corrected a longstanding oversight in existing federal legislation while simultaneously creating an empowering opportunity for individuals with disabilities. The new legislation provides a solution to a big issue for both estate planners and individuals with disabilities, making the option of using an SNT much less cumbersome.

What’s an SNT?

An SNT is a type of irrevocable trust that’s frequently used to hold the assets of a disabled individual who’s receiving Medicaid or other public benefits. Typically, those with disabilities qualify for government assistance, such as Supplemental Security Income (SSI), Medicaid and subsidized housing. Many government assistance programs are “means tested” (or “needs based”). To be eligible to receive means-tested benefits, an individual’s assets and income must be below a certain level. When properly drafted and administered, the assets held in an SNT won’t count against the individual’s asset limits for the purposes of his or her Medicaid or SSI eligibility.

What’s an SNT?

Types of SNTs

In brief, there are three types of SNTs: (1) a first-party trust (sometimes referred to as a “d(4)(a) trust" or simply a “special-needs trust”); (2) a third-party trust (sometimes referred to as a “supplemental-needs trust”); and (3) a pooled trust. A first-party SNT can be funded only with assets that belong to the disabled beneficiary (such as an inheritance or the settlement proceeds from a lawsuit). A third-party trust can be funded only with assets belonging to someone other than the disabled beneficiary (such as the beneficiary’s parent or grandparent). A pooled trust can be either a first-party trust or a third-party trust. With a first-party or third-party SNT, the individual establishing the trust may choose an individual or a corporation to serve as trustee. A pooled trust is a trust that’s established by a nonprofit organization, which also serves as trustee. Pooled trust accounts hold assets from many different individuals with disabilities and generally provide reduced administration costs.

What’s an SNT?

Types of SNTs

Each type of SNT has other attributes, as well as additional differences, and there are important considerations involved in determining which type of trust vehicle is appropriate in any given scenario. An analysis of these issues is well beyond the scope of this article. Moreover, the key change to special-needs trust law brought about by the CCA applies only to the creation of first-party SNTs.

Key Elements of a First-Party SNT

The Omnibus Budget Reconciliation Act of 1993 (OBRA-1993), which was codified under 42 U.S.C. Section 1396p(d)(4), et seq., authorizes the use of trusts created with assets of an individual who receives public benefits without sacrificing the government assistance received. Under Section 1396p(d)(4), the following conditions must be met to create a first-party SNT:

The beneficiary of the trust must be a “disabled” individual as defined by the Social Security Act (SSA)
The beneficiary of the trust must be under the age of 65 when the trust is established
The trust must be established by the disabled beneficiary’s parent, grandparent, legal guardian or a court
The trust must be funded solely with the disabled beneficiary’s own assets
The trust must include language providing that at the disabled individual’s death, any remaining trust funds will first be used to reimburse the state for Medicaid paid on his or her behalf

In addition to those mentioned above, the law places many other restrictions and prohibitions on the language used in the provisions of an SNT and regarding how and for what purposes the trust assets can be distributed.1 For example, another important requirement in the administration of an SNT is that any distributions from the trust must be for the sole benefit of the disabled beneficiary. It’s important for drafting attorneys and trustees to familiarize themselves with all of the laws and rules governing the creation and administration of SNTs.

State Adds More Oversight to Protect Vulnerable Citizens

Sat, 03 Feb 2018 01:43:07 GMT

Las Vegas, NV (KTNV) - Thanks in part to a Contact 13 Investigation, the state is stepping up to help protect our most vulnerable residents.

Contact 13 Chief Investigator Darcy Spears has new information in her ongoing expose of a system that many say fails to protect those who need help the most.

Our series of reports prompted the Nevada Supreme Court to take a serious look at how the guardianship system was failing. One of the key recommendations - create a permanent Guardianship Compliance Office to support and protect the rights of people under guardianship.

Today the Nevada Supreme Court announced Kathleen McCloskey will run the new office. McCloskey previously worked for Nevada Aging and Disability Services.

Her first task will be hiring an investigator and forensic financial specialist to help courts overseeing guardianship cases.

Our investigation revealed heart-wrenching stories where loved ones were isolated from family. Houses were sold without court approval and entire life savings were drained away.

Continue Reading Here : www.ktnv.com

This Simple Foster Care Bill Could Make Life Better for Arizona Kids

Thu, 01 Feb 2018 01:46:41 GMT

Arizona’s lawmakers can help abused and neglected children by making a few simple changes to state law.

It’s about permanent guardianship.

Wait.

Don’t let your eyes glaze over just because it doesn’t sound exciting.

Kids don’t need exciting. They need solid. They need stable. They need family and a sense of belonging.

That’s what this is all about.

Foster kids deserve a permanent home

Children who have been placed in foster care because of abuse or neglect are in limbo – regardless how kind and dedicated the foster parents may be.

Permanent guardianship can give them a place to belong. To stay.

It is something short of adoption. But it can be just as long lasting.

It takes children out of the system and gives them a permanent home with people they know and trust – a home that can include family connections and the comfort of the familiar.

Arizona began allowing permanent guardianships in 1999.

According to the Department of Child Safety policy , this is an option for children when family reunification is not possible and the chance of adoption is low or the termination of parental rights is not in the best interest of the child.

A permanent guardian can be an aunt or family friend who is willing to take over the duties of raising and safeguarding a child or sibling group – even though parental rights may not have been severed.

Losing family in itself is traumatic

Maintaining those parental rights can be important to the child and the extended family.

This is where respect for family sometimes gets lost in the child welfare system.

For many people, a child who has been taken from an abusive or neglectful home has been “rescued.” But to the child, it represents being ripped from everything familiar. It means losing the most fundamental human connections.

It means losing the family.

Experience shows that many former foster children seek out their parents when they turn 18. The pull of the family remains strong regardless of the parents’ problems.

Clearly, when a child’s safety is at risk, the state cannot allow the child to stay in a dangerous home. Yet the failure to recognize the importance of family led to record numbers of children in foster care in Arizona.

In 2016, the number peaked at over 18,000. The number has been falling. It was 15,432 as of November 2017, according to DCS.

Arizona’s child welfare system is recognizing the importance of family with an enhanced emphasis on prevention and family preservation, as well as efforts to keep children out of foster care.

Permanent guardianship is an important tool in that effort.

Bill helps guardians get aid

According to the Children’s Action Alliance, there were 2,737 children with 1,657 permanent guardians in May 2017.

Over the last 15 years, an average of 682 children have left foster care for permanent guardianship every year.

Taking in a child or sibling group puts a financial strain on a family, yet current law makes it difficult for permanent guardians to get subsidies.

Senate Bill 1166 , sponsored by Republican Sen. Kate Brophy McGee, streamlines the process.

It allows permanent guardians to begin the application process for subsidies before the court makes the final decision to grant the guardianship. This is how things are handled for adoptive parents because it lets families know what to expect so they can plan.

The change will eliminate months of waiting after a child has been placed with a permanent guardian, says Beth Rosenberg of Children’s Action Alliance.

The bill allows permanent guardians who subsequently adopt to apply for adoption subsidies. Currently, they cannot.

Continue Reading Here : www.azcentral.com

Longer Lives and Special Needs Trusts

Tue, 30 Jan 2018 01:48:12 GMT

People in our region try to save throughout their lives. The struggle comes when those people who have saved experience long-term care needs, typically nursing home, assisted living or in-home care.

Often, Medicaid is the tool used to avoid having to pay out-of-pocket for long-term care. However, Medicaid eligibility means that a person must be almost completely impoverished.

As this column has explained previously, there are multiple tools available to attempt to shield assets to allow someone to become Medicaid eligible. Usually, those tools involve a person giving up either all ownership, partial ownership or control of various assets, including money.

In this context, people often give up their control or ownership of assets to their kids. This makes perfect sense, because kids are obviously younger than parents and therefore less statistically likely to need long-term care before their parents.

However, today, people live longer than ever. It is not uncommon for a person to pass away having adult children who have retired or are themselves needing long-term care. In these situations, the parent’s hard work in protecting assets can be thwarted.

In other words, a parent may protect an asset by giving the asset (or the asset’s control) to the child, but if the child needs long-term care himself or herself, the child could be required to spend that asset that was intended to be protected.

In this situation and in other situations like it, a reasonable tool that can often help is a special needs trust. Special needs trusts are obviously thought-of most commonly when someone has a family member who may not be mentally or physically able to handle all of his or her own assets or is legally disabled. However, special needs trusts have become even more important for the reasons explained above, to provide protection if a person’s kids themselves need long-term care after control or ownership of assets is provided to those kids.

Trusts are easiest to understand if they are considered “sets of rules.” A special needs trust provides rules that limit the use of money or assets for a beneficiary who is disabled.

Typically, the rules of a special needs trust will require that trust assets (assets subject to the rules of the trust) not be used for anything that a governmental program could pay on behalf of the disabled beneficiary, such as food, shelter and most aspects of long-term care. Frequently, special needs trusts will allow the trustee of the trust to pay for a beneficiary’s vacations, home furnishings, education, vehicles, extraordinary therapy and recreation.

To Continue Reading : http://www.limaohio.com/

Deciding Who Will Take Care of Your Children if The Worst Happens

Sat, 27 Jan 2018 01:52:32 GMT

No one wants to think or talk about it, but choosing someone to look after your children if you die could be one of the most important decisions you make as a parent.

That question hit my husband and me hard one awful day a few years ago when my eldest brother died of a heart attack and hadn't left a will. He was survived by the mother of his two children. But that event, coupled with the fact that my husband's job as a law enforcement officer takes us to some dangerous locations around the world, made us realize that we needed to prepare for anything.

My brother's death was a horrible reminder that no one is invincible. And all of us — especially parents — need to prepare for life after our deaths. Most importantly, we need to think about whom we want to raise our kids if we are not around to do it.

I would be lying if I said this was an easy decision. We narrowed the choice to two of my siblings, for geographic and practical reasons. But asking someone to take on two extra children — even if the chances are slim that both of us would die before they are grown — is no trivial matter. There are so many considerations, including who would look after them in a parenting style similar to your own, what would happen with their education or even who has room in their house.

We chose the brother nearest to my parents, who could provide additional support. Fortunately, he and his wife said yes when we broached the sensitive question with them; I'm not sure what we would have done if they had said no.

Texas resident Katherine Creamer and her husband wanted to choose a family who shared their faith as guardians of their two daughters, ages 6 and 3.

"We talked extensively, and it was a close call between a few people, but eventually we landed on some close friends whom we consider to be family," she says.

Creamer and her husband drew up a will to include guardianship when their oldest was a baby and before the birth of their second child.

"This is one of the most important things you can set up when you have children to help others make things go smoother in the event of a worst-case scenario," she says. "No one wants to think about it, but you owe it to yourself, your children and everyone around you to have it made official."

Given how hard it is to nominate your child's guardian, I wondered what would happen if you die before making this choice — or if you had thought about it but hadn't formalized it in a will.

Gina M. Spada, a lawyer in Illinois who works on guardianship and estate planning, says choosing a guardian is one of the most contentious issues for parents drafting a will. It also tends to be the one thing that slows the estate-planning process. But even with a will, she says, it is still up to a family court to make the decision.

"Guardianship is decided based on what is in the best interests of the child," Spada says. "However, without a nominated guardian, the court has no information of the parents' wishes to consider."

She emphasized that it still is important to put your decision in your will rather than just discuss it informally because "an informal nomination would hold very little weight with the court."

I asked her what would happen if the people you asked didn't want to do it.

"If a person is nominated as a guardian, he or she is under no obligation to accept — it would certainly not be in the best interests of the child for the court to appoint a guardian who does not want children," Spada says. "Therefore, it is extremely important to discuss guardianship with the person you intend to nominate."

To finish reading this article http://newsok.com/

Indiana Guardianship Registry Prevents Exploitation

Mon, 22 Jan 2018 01:25:48 GMT

INDIANAPOLIS (AP) — A new online registry that aims to protect elderly people and others in Indiana from being financially exploited by their court-appointed guardians is now being used by courts in more than half of the state's counties.

The registry helps courts monitor guardianship cases, while providing limited public access to further help protect people who are unable to manage their personal and/or financial affairs, The (Northwest Indiana) Times reported.

"There's a lot of positive benefits for something like this," said Lake County Superior Court Judge Diane Kavadias Schneider.

Porter County Superior Court Magistrate Mary DeBoer said court reviews of guardianship cases ensure that a protected person's funds are being used appropriately.
"These protected persons are vulnerable to physical and financial exploitation, so it is particularly important to protect these protected persons and their assets from harm," DeBoer said.

She said the registry also helps the courts keep track of statistics related to their guardianship cases. DeBoer estimated that the number of cases will increase as baby boomers age.

Continue Reading Here : www.southbendtribune.com

57 New Nevada Laws in Effect Monday

Sat, 20 Jan 2018 01:56:05 GMT

A total of 57 new laws took effect Monday January 1 including the Legislature's attempt to get a handle on the skyrocketing price of insulin and other diabetes treatment drugs.

Senate Bill 539 was strongly opposed by the drug and pharmacy representatives. It requires the state Health and Human Services Department compile a list of drugs essential to treat diabetes and the drugs on that list that have seen significant price increases in the past two years. That list would be public.

It also requires the manufacturer of those drugs to submit to the department an annual report about the cost of the drugs, list those that have significantly increased in price and the reason for the increase.

It further requires organizations that advocate for patients or medical research to provide information about what payments, donations and other things of value they've received from drug makers and pharmacy benefit managers.

Also new January 1is SB474, a sweeping attempt to deal with the opioid addiction crisis.

The bill limits initial opioid pain prescriptions to just a 14-day supply, require doctors and other professionals who prescribe pain medications to have solid reasons for prescribing, conduct an assessment of the patient's vulnerability to addiction and develop an evidence based diagnosis and treatment plan.

SB474 further says no patient should be prescribed those drugs for more than a year and requires a documented explanation why they're exceeding 365 days if necessary.

Backers of the plan, which Gov. Brian Sandoval listed as one of his priority measures in the 2017 Legislature, say it doesn't prevent patients from getting appropriate medications but establishes good practices for prescribing them.

Several laws revamping and strengthening controls over guardianships also are in effect. SB360 imposes stiff penalties for the abuse, neglect, exploitation, isolation or abandonment of an older or vulnerable person by guardians who are supposed to protect them. Acts that result in bodily harm would be a felony punishable by up to 20 years in prison. In AB130, the state tightens restrictions on the ability of guardians to dispose of or sell a ward's property and requires court approval to pay attorney fees from an estate.

That law also created the State Guardianship Compliance Office headed by an officer appointed by the Supreme Court.

That officer would have the ability to hire two accountants and two investigators to audit and investigate complaints and other abusive conduct. Authors of the law say there have been cases where guardians essentially emptied the bank accounts and other assets of the person they were charged with protecting.

The bill appropriates just under $1 million over the biennium to run the office.

AB249 and SB233 both mandate that public and private health plans cover access to contraception. Both, however, allow an organization an exemption based on religious beliefs. AB249 would require the state to pay the federal share of Medicaid family planning services and supplies.

In addition, SB122 provides for access to family planning services in the state. But the bill contains no funding, relying instead on gifts, grants and donations.

To finish reading this article www.nevadaappeal.com

Elder Abuse Surge in Wa as Greedy Kids Rip Off Vulnerable Family

Thu, 18 Jan 2018 02:07:34 GMT

THE “hidden scourge” of elder abuse — physical, psychological and financial — is destroying the lives of thousands of older West Australians.

An estimated one in 20 of WA’s 350,000 seniors will have experienced violence, exploitation or neglect, often perpetrated by a trusted family member, a parliamentary inquiry has been told.

The probe has shone a light on the silent epidemic, revealing how greedy adult children are draining their parents’ bank accounts, abusing powers of attorney, taking control of property and using access to grandchildren as blackmail.

Seniors rights advocates, legal experts and authorities, who all said cases were on the rise in WA but that most victims never speak out, told how:

UNDERSTANDING of elder abuse is 30 years behind that of child abuse and 10-20 years behind domestic violence, according to the Commissioner for Victims of Crime.

HUMBUGGING — greedy relatives putting pressure on the older generation to hand over cash — is widespread.

INCIDENTS of elder abuse confirmed by WA Police have surged more than 40 per cent over the past three years.

WA’S Elder Abuse Helpline receives almost 50 calls a month, with 60 per cent of perpetrators being the victim’s sons or daughters.

DOCTORS , bank staff and other professionals in frequent contact with seniors will be taught how to identify elder abuse.

WA Public Trustee Brian Roche, who deals with financial elder abuse after the State Administrative Tribunal appoints it as an administrator of an older person’s estate, said his team carried out 51 investigations last year.

Risks include cognitive impairment, being widowed, isolated and having children or grandchildren “who collude to remove assets ... due to their need or greed, or to safeguard their ‘inheritance’ from being used to care for the older person in an aged-care facility”, he said.

“The Public Trustee believes that education is integral to empowering older persons to better protect themselves from the risks of elder abuse as they age,” Mr Roche said.

“Elder abuse is an extremely concerning social issue, which is currently and deservedly receiving attention.”

WA Police Assistant Commissioner Michelle Fyfe said collecting data was difficult as elder abuse was not a specific crime and until there were reporting mechanisms, “prevalence of elder abuse within our community will continue to be difficult to identify”.

Incidents of elder abuse flagged by officers increased from 131 cases in 2013-14 to 185 last year, Ms Fyfe said, but as the WA population ages, the potential for more offending against older West Australians was “inevitable”.

The Sunday Times can reveal a “syndicate” of eight people is before the courts after a Major Fraud Squad investigation into allegations of fraudulent powers of attorney and abuse of family arrangements.

The charges followed two complaints about fraudulently obtained mortgages in which lenders were allegedly deceived into handing over money under the mistaken belief their investment was secured by way of a caveat or mortgage over property to which the loan was secured.

“Falsified legal documents were submitted, making it appear that innocent third parties who have no knowledge of the mortgage or the borrower were providing security to guarantee the loans,” police said. “The value of the fraudulent loan agreements totalled $850,000; the suspect didn’t intend (to) repay the loan and disbursed the proceeds amongst the syndicate.”

Advocare has received 1435 calls to its elder abuse helpline since its launch three years ago and in 2016-17 helped 1219 clients. The most prevalent form of abuse was financial (34 per cent) and physiological (33 per cent), which includes intimidation, humiliation, threats, withholding affection and removing decision-making power.

To finish reading this article www.perthnow.com.au

Social Services and Elder Care: We Can't Afford Not to Pay for Them.

Tue, 16 Jan 2018 02:20:49 GMT

The Kentucky General Assembly faces tough choices as it builds our commonwealth’s budget. Social services, which are already stretched thin, should not be on the chopping block.

We have a moral imperative to care for the frail, sick and less fortunate in our society.

However, some might argue that caregiving should be the domain of the private sector, not the public one. In our experience at ElderServe, it takes a village — of both sectors. We are grateful for the incredible support from individual donors and corporate supporters. Grants also help, but with increasing needs, competition is stiff. Recently, a foundation told us that they received $7 million in funding requests, but had only $1.5 million to give.

None of these funding sources allow us to provide home care or adult day care for free — two services less costly than assisted living and nursing homes. Instead, we rely on Medicaid, the Kentuckiana Regional Planning and Development Agency and the VA to pay for these services.

Social service funding has broader implications for our society, starting with our economy.

As recently as 2014, 13.4 percent of caregivers work full time, according to a Gallup-Healthways poll, and caregivers working full-time miss 72 percent more days of work than noncaregivers. By one estimate, caregiver absenteeism costs the U.S. economy $27 billion in lost productivity.

The need for caregivers will only increase. The U.S. Census Bureau projects that the population 85 and older could grow from 6 million in 2014 to 20 million by 2060. In 2010, there were more than seven potential caregivers for every senior. The Urban Institute projects that ratio to drop to 4-to-1 by 2030.

Meanwhile, unemployment remains low and many businesses say they have difficulty finding workers to fill positions.

Spiraling healthcare costs are another challenge for the United States, and the medical community focuses on prevention and management as means of control.

For example, studies have shown that caregivers are at greater risk for depression and heart disease and report feeling less healthy than the general population does. Programs like ElderServe’s HomeCare provide respite, allowing caregivers time to care for themselves. KIPDA, which has a waiting list for home care services, is our HomeCare program’s largest source of revenue.

KIPDA also helps fund for our Senior Center in Louisville’s underserved Russell neighborhood, which focuses on wellness.

To finish reading this article www.courier-journal.com

New Court Rules Jan. 1 Regarding Guardianships of Vulnerable Marylanders

Sat, 13 Jan 2018 02:29:28 GMT

ANNAPOLIS — Changes to court rules that help safeguard the personal and financial well-being of vulnerable Marylanders will go into effect Jan. 1, 2018. The changes will apply to court-appointed guardians, guardianships, and attorneys. Guardians are appointed by the court to make personal or financial decisions on behalf of someone who is unable to manage those matters because of age, disease, or disability.

“The Judiciary is committed to protecting the rights of older Marylanders and vulnerable children and adults whose matters bring them before our courts,” said Mary Ellen Barbera, Chief Judge of the Maryland Court of Appeals. “The changes to the rules will help prevent neglect, abuse, and financial exploitation. We are grateful to the Guardianship Work Group, which includes representatives from within the Maryland Judiciary as well as justice partners in the community. The group advocated for these rule changes and worked diligently to implement recommendations to improve court processes and ensure that best practices are employed in the management of guardianships of minors and vulnerable adults.”

The changes include:

New certification requirements to be completed by physicians, psychologists, and licensed certified clinical social workers (amendments to Md. Rule 10-202).
New training and eligibility requirements for attorneys appointed to represent individuals who are the subjects of proceedings to establish guardianships (amendments to Md. Rule 10-106 and the Maryland Guidelines for Court-Appointed Attorneys in Guardianship Proceedings, which are attached as a new appendix to Title 10).
New orientation and training requirements for guardians of the person and property (amendments to Md. Rule 10-108; new Md. Rules 10-205.1 and 10-304.1; and the Guidelines for Court-Appointed Guardians of the Person and Guidelines for Court-Appointed Guardians of the Property, which are attached as new appendices to Title 10).

T o finish reading this article http://www.myeasternshoremd.com/

Commission on Guardianship Finalizing Report

Thu, 11 Jan 2018 02:45:09 GMT

ALBUQUERQUE, N.M. — A 16-member commission appointed to find ways to improve the state’s ailing guardian/conservator system finished its work Friday with a final report expected to be presented to the state Supreme Court next week.

A key recommendation – the purchase of a $600,000 Minnesota computer software program to detect fraud in conservator reports – was revised after the commission learned that the software program so far hasn’t worked in other states.

In its final report, the commission – composed of lawyers, judges, legislators and others – is expected to stress ways to improve accountability and oversight of the system in which court-appointed guardians and conservators, including for-profit companies, make decisions for people deemed incapacitated.

The report is due Jan. 1.

The commission had hoped that New Mexico could adapt a computer system that was “working very well in Minnesota,” said commission Chairwoman Wendy York on Friday. The Minnesota system is designed to detect fraud and suspicious reporting by conservators who handle finances for the incapacitated person and help judges who review such reports annually.

By using a Minnesota “source code” for the computer program, New Mexico would have been saved the cost of creating its own computer program.

“But the fix isn’t quite as easy as we had hoped,” said York, a retired state district judge. “Other states have tried to use the code and have not had success.”

So the commission is expected to recommend New Mexico implement some type of computer monitoring and hire court auditors and special masters to hear complaints and concerns about guardians and conservators.

T o finish reading this article www.abqjournal.com

The Road Ahead: Corrupt Guardianship System Needs Reform

Fri, 05 Jan 2018 02:48:21 GMT

My family was one of the many families victimized by a predatory guardian/executor business working under shield of secrecy in New Mexico – i.e. the legal mandate to “seal” all fiduciary and medical records of protected persons. I testified before one of the first hearings of the Commission ordered by (N.M. Supreme Court) Justice Charles Daniels.

So far, the absolute and vault-like sealing of any records pertaining to the elderly, infirm and disabled has militated against their well-being. The “sealing” provision of the law protects only malfeasant guardians and conservators, not those who are the legal “protected persons.” Those persons are actually hostages to a corrupt system, a corrupt system which we have the opportunity to reform.

The sole financial accounting my mother’s predatory guardian/executor performed was an annual, two-page, woefully general letter to the judge, who was not an accountant and lacked the skill or time to really analyze it.

The reforms recommended by the commission will cost an initial outlay of $1 million. But Ayudando allegedly embezzled and Desert State Life Management did embezzle at least $4 million from their clients. These victims were veterans, the disabled, SSI recipients: the poorest of the poor. Their funds will never be restored. How much will it cost the state to support them in their destitution?

U.S.News & World Report (in its) Nov. 21 issue reported that chief economist Jon Clark of the New Mexico Legislative Finance Committee said the state’s recently depleted savings had substantially grown, and that the state had set aside an estimated $500 million as of the start of the fiscal year on July 1. The article further said that although New Mexico’s state finances had been hit hard by a 2015 downturn in the oil sector, we are enjoying a rapid turnaround.

The guardianship/executorship reform would cost only 1/500th of New Mexico’s set-aside funding. But it would impact a great segment of the population. A flood of Baby Boomers are getting older and will be at the mercy of predatory guardians and conservators very soon.

There are many demands for money at this time.

To finish reading this article www.abqjournal.com

Politician Loses Fight to Get Guardianship Over Her Husband and His Money

Thu, 04 Jan 2018 02:52:13 GMT

Broward Clerk of Court Brenda D. Forman has failed in her quest to convince a judge to declare her 71-year-old husband senile and name her as his guardian.

A committee of three independent examiners concluded that Howard C. Forman “is not incapacitated in any respect,” Judge Mark Speiser determined this month, dismissing the case.

The order notes that the panel of experts agreed unanimously. The word “unanimously” is emphasized in bold.

The decision is a victory for Howard Forman, a longtime Broward politician who served as Clerk of Court himself until he retired last year and helped get his now-estranged wife elected to his old job.

When they met, she was a clerical worker in his office with no political experience, earning $22,000 a year.

She now earns nearly eight times that and runs a taxpayer-funded office with 750 employees and a $37 million budget.

The regrettable court fight burst into public view in March, when Howard Forman filed for divorce. The couple had been married for four years. The next day Brenda Forman, 59, counter-punched.

She told the court her husband may suffer from early-onset dementia, filing a petition to be named his guardian with oversight over his well-being, property and bank accounts.

To finish reading this article http://www.sun-sentinel.com/

Metro Detroit Adults Under Court Guardianship Put in Unlicensed Group Homes

Sat, 30 Dec 2017 03:03:48 GMT

But after a family friend told the Oakland County Probate Court that Plummer was having memory loss, court records show a Judge appointed a Southfield attorney as a co-guardian.

Charlene Glover-Hogan is a Public Administrator, a lawyer appointed by Michigan’s Attorney General to handle probate estates after someone dies.

But several judges in metro Detroit like to appoint Public Administrators as professional guardians for adults who are considered “legally incapacitated.”

“It’s awful,” said Klavinger.

Klavinger says he was outraged when Glover-Hogan moved Plummer into an unlicensed group home in Warren -- a home that was operating illegally as an Adult Foster Care facility.

“It smelled, she didn’t look like her hair was brushed. She had on the same clothes every day, it was for a week,” said Klavinger.

Desperate, Plummer’s family hired an attorney.

“He called Glover-Hogan, and said did you visit? She said no. He said, well you’re supposed to – and I can name several violations right off the top,” said Klavinger.

In Michigan, a group home must be licensed if the owner receives compensation for providing personal care, supervision, and protection, in addition to room and board to people who are mentally ill or disabled.

Clarisse Carter runs Due Season Residential Services LLC, the unlicensed group home in Warren. State investigators from the Bureau of Licensing and Regulatory Affairs inspected the home in October and found that Carter was violating the law.

Carter applied for a license 11 months ago, but refused to answer our questions about why she was operating the home before being approved by the state.

T o finish reading this article www.wxyz.com

Advocates Promote Guardianship Alternatives for Adults with Disabilities

Thu, 28 Dec 2017 03:23:27 GMT

Janie Desmond was nervous the first time she boarded a train in Durham headed for Greensboro. From her wheelchair, the train seemed big, loud and unfamiliar.

“I kind of wanted to convince my mom to take me to school, but I had to take the train,” Desmond said describing her freshman year UNC Greensboro. “There were a bunch of people on there that I didn’t know.”

When the train would make stops, Desmond said she was confused about what was going on.

This was one of Desmond’s first explorations away from home on her own. Over time, riding the train became no big deal. After that, she took on ordering groceries, preparing food, managing money, and other life skills.

Desmond, now 25, was diagnosed with cerebral palsy, severe visual impairment and mild intellectual disability as a child.

Many parents of North Carolinians with disabilities obtain guardianship of their children when they become adults.

But not Desmond’s parents. When she turned 18, they wanted her to live as fulfilled and independent of a life as possible.

T o finish reading this article : www.northcarolinahealthnews.org

Learn About Kentucky Guardianships Laws

Tue, 19 Dec 2017 03:26:19 GMT

A guardianship is a legal relationship between a capable adult (a guardian) and his ward, either a minor (a person under 18 years old) or a legally disabled adult. A guardianship provides the guardian with the decision-making authority and responsibility over the personal affairs of the ward to include daily activities and health care decisions.

If you have a child over 18 years of age or an elderly parent or other individual who is not able to provide for their personal needs such as health, food, clothing and shelter or managing their financial resources, then it would be beneficial and perhaps necessary that a guardian be appointed for that individual. A guardian can provide for the needs of an individual and prevents the individual from wasting their assets for unnecessary items not in the individual’s best interest.

Once a person is declared disabled under Kentucky law and a guardian is appointed, the disabled person cannot legally contract for things that may simply be someone trying to take advantage of them, such as a new roof on their house or any number of scams that the elderly may fall prey to. We often hear of unscrupulous contractors who take advantage of elderly and disabled persons by getting them to contract for services that are not necessary.

Guardianship proceedings are filed in the county of residence of the disabled person. If you have questions about guardianship proceedings as to a Campbell County resident, you can call the District Court Clerk’s Office at 292-6314. If you feel a guardianship is necessary, you can fill out the necessary paperwork at the Campbell District Court, located at 330 York St. in Newport.

After a petition is filed to have someone declared disabled and for the appointment of a guardian, reports are obtained from the person’s physician, a mental health professional and a social worker as to whether the person is disabled. A jury of six people will make the decision as to whether someone is disabled. If the jury decides a person is disabled, then it is up to the District Court Judge to appoint the appropriate person as guardian. The court may also appoint that same person or another person as a conservator to handle the disabled person’s financial affairs.

To finish reading this article www.cincinnati.com

Kentucky's Health Agency Could Be Held in Contempt After Delaying a Woman's Urgent Eye Surgery

Thu, 14 Dec 2017 03:29:28 GMT

A Jefferson District Court judge is considering whether to hold the Kentucky Cabinet for Health and Family Services in contempt of court for delaying urgently needed surgery for a severely disabled woman in its care.

Judge David P. Bowles had planned to hold a hearing Friday on his motion to hold the state agency in contempt of court but agreed to postpone it until Jan. 19 to give the state, which serves as guardian for the woman, more time to collect records and notify witnesses.

Meanwhile, the woman has received the surgery — removal of a diseased eye — a cabinet lawyer said in court Friday. But the case has raised enough questions that Bowles plans to proceed with a hearing on whether to hold the cabinet in contempt for its actions.

Bowles also took the unusual step of opening the case to the public, finding it to be in the best interest of the woman, who is not identified. Cases of individuals who are wards of the state through its guardianship program by law are confidential and subject to closed court proceedings unless a judge decides otherwise.

Jacqueline Caldwell, a lawyer appointed to represent the woman, agreed with the judge's decision to open the case, citing in a Nov. 8 court filing "the possible failure of the guardian, in this case the Cabinet for Health and Family Services, to provide prompt, adequate and reasonable health care" for her client.

Caldwell said the cabinet "is the guardian to a significant portion of our most vulnerable disabled population," largely "those disabled persons that have no other person in their life willing or able to perform the duties of guardian."

The case comes as the state struggles under a growing guardianship caseload of individuals with shrinking resources, a problem that has existed for years at the underfunded program. Judges generally assign state workers to serve as guardians in cases where there is no one else to assist those who can't manage their own affairs because of mental or physical disability.

In October, cabinet Deputy Secretary Tim Feeley told a legislative committee the guardianship program "is bursting at the seams" with around 60 state workers overseeing 4,400 people who need help with finances, housing, health care and other needs.

That means state workers are handling 70 to 80 cases each, Feeley said at a meeting of the House budget subcommittee on human services. National social service standards recommend caseloads of no more than 20 per guardianship worker.

To finish reading this article http://www.kentuckynewera.com/

FAMILIES OFFER PRAISE, IDEAS FOR REFORMING NC'S GUARDIANSHIP PROCESS

Tue, 12 Dec 2017 03:32:54 GMT

A week before Shawn Stead’s 12th birthday, he was riding a scooter in his Garner neighborhood when a Ford F-150 truck hit him.

He suffered a traumatic brain injury (TBI), spending the first three weeks at WakeMed hospital in Raleigh unconscious. Doctors said he would likely die or be brain dead.

Shawn’s mother, Kristine Stead, said she needed hope of a better outcome.

“He said, ma’am, I don’t think you understand the severity of your son’s injuries,’” Kristine recalled the neurologist saying.

“I don’t think you understand I’m his mother and I need a third option, please. We need something else to hold on to,” she told the doctor.

Shawn defied everyone’s expectations. After 78 days at the hospital, Shawn was discharged.

He relearned to walk and talk. He’s participated in Special Olympics. And he graduated from Garner High School.

“I was like a Pokemon, leveling up higher and higher,” said Shawn, now 22.

Though Shawn made a full-recovery physically, his brain was altered in the accident. Daily life tasks are more difficult for him. He can’t drive. And as Shawn approached 18, it was clear he wouldn’t join the workforce and live independently right away.

Shawn’s mother Kristine is one of many parents in North Carolina who have sought and secured a type of guardianship over her child.

Now, there’s a growing movement challenging parents to move away from guardianship and think about other ways to support their children with disabilities.

Some experts say it’s unnecessary to obtain guardianships in many cases because young adults needs to make their own decisions in order to mature into adulthood properly. NC Health News will examine that more fully in Part 2 of this series.

But Kristine says the process has worked for her family and Shawn.

How it works

In North Carolina, there are a few types of guardianship.

A “guardian of the estate” is an adult appointed only to manage a ward’s property, estate and business affairs, according to N.C. general statute 35A . A “guardian of the person” is an adult appointed only to manage the care, custody and control of a someone the court deems “incompetent.” And a “general guardian” is someone who controls a ward’s person and estate.

A parent seeking guardianship must file a petition with the Clerk of Superior Court and for parents seeking guardianship of their children aging into adulthood, the court must find the teenager to be an “incompetent child.”

The term is legally defined in the general statute as “a minor who is at least 17 1/2 years of age and who, other than by reason of minority, lacks sufficient capacity to make or communicate important decisions concerning the child’s person, family, or property, whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, disease, injury, or similar cause or condition.”

A guardian ad litem is appointed to represent the ward and make sure he or she understands what is happening. The guardian ad litem also talks to the ward about rights they may wish to keep, such as the ability to vote, choose their own religion or pick friends.

This can be helpful for some families, like the Rainears of Raleigh. Their 18-year-old son Gaven has autism and Asperger’s syndrome. While Gaven has a pretty large vocabulary, he’s soft spoken and doesn’t always tell people what he wants.

“We didn’t have any idea he would like to have the ability to pick his own religion,” his father Russell Rainear said. “I’m fine with it. You pick your religion, friends and who you vote for, absolutely. But I wouldn’t have thought of any of those things had [the guardian ad litem] not talked to him about it.”

To finish reading this article www.northcarolinahealthnews.org

Mom Said She Was Drugged, Abused Under Michigan Probate Guardianship

Tue, 28 Nov 2017 03:38:24 GMT

A Farmington Hills mom says she was left to die inside a group home. Now, she is telling her story to warn others about how quickly anyone could go from living a normal life, to having their life taken over--- legally, through a court-ordered guardianship.

“I had no rights. Anything they said, anywhere they put me, I couldn’t say no,” Niki Disner told 7 Investigator Heather Catallo.

Disner walks now, because she can. Just a few years ago, she was in a wheelchair – and the thought of walking without a walker seemed impossible.

“I had to dig myself out of a grave-- like a grave where people threw dirt on me. I had to dig myself out,” said Disner.

Disner says back in 2009, she got in a car accident on the way to pick up her daughter from school.

“It was horrific,” said Disner.

Disner says after being put on morphine in the hospital, like so many Americans fighting opiate addiction -- she got hooked on pain meds.

When Disner asked for help getting her bills paid and her daughter cared for, she says the attorney she hired to fight her car insurance company got her a court-appointed guardian.

“They’re like, you don’t have to go to court, we’re going to take care of all this for you,” said Disner.

Disner agreed to having a local lawyer become her guardian. But what this single mom didn’t realize is that a legal guardian can have total say over where you live, which doctors you see and what you do.

“I no longer had any rights,” said Disner.

Disner says the doctors chosen for her put her on a fentanyl patch, plus other narcotic pain killers and muscle relaxers.

“I don’t even think they give that much medication to someone who’s dying of end stage cancer. I could not think. I couldn’t walk,” said Disner.

Disner says some of the guardian’s caregivers were emotionally abusive, and after a year, she demanded change.

That’s when lawyer and Attorney General-appointed Public Administrator Barry Seifman took over, both as Disner’s Limited Guardian and as the Trustee of a Special Needs Trust for the $230,000 settlement from her car accident.

“So I got like $150,000, minus the attorney fees,” said Disner.

Court records indicate Seifman billed from those funds, and with 24/7 health care for Disner, within 10 months – the money was nearly gone.

“By this time, I was in a wheelchair because I was so debilitated. I could no longer urinate on my own because the drugs were affecting me, just shutting down my body, shutting down my functions. So, I had to be catheterized,” said Disner.

Disner says the next thing she knew, her daughter was sent to live with her ex. And then, she received even more devastating news: court records show Seifman moved Disner to an unlicensed group home in Oak Park.

Disner says the home was not wheelchair accessible. She says for the next 7 weeks, she was rarely moved from her bed.

“I didn’t get a shower. My teeth were never brushed. They don’t know how to catheter. So, whatever they were doing was causing injury,” said Disner.

Disner says over the 4th of July, the caregivers all vanished, leaving Niki and a woman who was a double-amputee stranded in their bedrooms.

Keep reading the rest of the article here. http://www.wxyz.com/

Ruling Ends Effort to Find $400 K Missing in Savitt Guardianship

Sat, 25 Nov 2017 03:47:44 GMT

Attorneys Webb Millsaps and Donna Greenspan Solomon spent years trying to right the wrong done to senior Frances Berkowitz.

Millsaps and Solomon recovered $835,000 they say was stolen from Berkowitz before deciding to seek the protection of a guardianship, fearing further fraud. Instead, they found themselves fighting controversial professional guardian Elizabeth “Betsy” Savitt, watching their legal work get undone.

Particularly vexing to Millsaps and Solomon was what they said appeared to be $400,000 missing from Berkowitz’s accounts around the time they sought court-ordered guardianship protection for Berkowitz.

But they were shut down by a circuit judge in their efforts to remove Savitt in order to see what happened to Berkowitz’s money. So this week they ended up at the 4th District Court of Appeal where judges talked about how the guardianship system in Florida had gone awry and how the Berkowitz case was a prime example.

Frances Berkowitz, with her husband Jerry Berkowitz. (Photo provided by WPTV News Channel 5)

But the lawyers and the heirs of Berkowitz, who died in December at 86, were dealt a legal fatal blow on Thursday. Not only did the DCA panel affirm Circuit Judge Howard Coates’ decision to not allow Millsaps and Solomon standing to challenge Savitt, they didn’t even say why.

The one-page decision was only three words: “Per curiam. Affirmed” by Judge Cory Ciklin, Judge Mark Klingensmith and Associate Judge Mark Belanger. The ruling is a dead-end for Millsaps and Solomon.

SPECIAL REPORT

A Palm Beach Post Investigation

The silence of the order was deafening considering that the problems in guardianship have spurred not only reforms on the state legislative level but also in the county. Then-Chief Circuit Judge Jeffrey Colbalth handed down new rules last year, many directed at complaints by families of wards of Savitt.

To finish this article http://www.mypalmbeachpost.com/

What Is Guardianship?

Sat, 18 Nov 2017 04:09:18 GMT

magine you’ve worked hard all of your life and suddenly you are deemed incapacitated and are stripped of your dignity and basic individual rights. You have been abducted from your home, isolated from your family, and “placed” somewhere to be medicated while your assets are being pillaged. The authorities that should be protecting you are the ones committing these heinous acts. It sounds like Nazi Germany, but this is happening in the United States today.

The victims are seniors. The partners in crime are financial predators and agents of the Elder Guardianship system—attorneys, professional guardians, medical experts, and others who are paid out of the senior’s assets. There are some good judges but many are overworked and some are actively aiding the exploitation. Anyone can file to deem you incapacitated. The entire process from filing an incapacity petition to plenary guardianship where all rights are removed can happen within days. Yet, once you’re caught in the web, it’s almost impossible to break free... and you are forced to pay your abusers in the process.

– From “Is Elder Guardianship a New Form of Human Trafficking?” by Dr. Terri Kennedy, HuffPost, September 13, 2016

According to AARP.org, “Adult Guardianship is a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make personal and/or property decisions for another (the incapacitated person or ward). A judge appoints a guardian upon finding that an adult lacks capacity to make decisions for him or herself. Guardianships are established through a legal process outlined in state law. The process begins with a petition alleging incapacity, followed by a court hearing, a judicial finding on capacity, and the appointment of a guardian. The judge may appoint a guardian of the person only, a guardian of the property only (often known as a 'conservator'), or guardian for both the person and the property. The appointment may be an emergency order if the person is at risk of immediate harm. The appointment also may be 'limited'to specified areas of decision-making. Guardians may be family members, friends, private nonprofit agencies, private for-profit agencies, public guardianship agencies, attorneys serving as guardian, financial institutions (for property decisions), or volunteers. Upon appointment, the guardian may be required to post a bond, and must submit periodic reports and accountings to court. A current 'best guess' national estimate of the number of adults under guardianship in the United States is approximately 1.5 million."

Exploring Guardianship

In this series of articles, we will explore the sordid and chilling details of what can best be described as the Guardianship Racket in the United States and what can be done about it.

In courts all over the United States, lawyers, judges, and professional guardians wage a merciless war on the rights and property of innocent Americans. The laws intended to protect the frail and poor among us have been perverted to allow sophisticated predators in court to illegitimately amass great fortunes at the expense of innocent victims and families.

The stories are so terribly sad. And outrageous. And terrifying.

But, they play out every day in probate courts around the country, particularly in states with large elderly populations like Florida, Texas, Colorado, and Washington. The stories that come out of probate courts are so horrific that they border on being incomprehensible. The abuse heaped on anyone who tried to stand in the way of this merciless system is equally horrific and unbelievable. Until it happens to you.

The “wards” and their families (the replacement name given to those who have been declared “incapacitated” by the court) are treated worse than murderers. They are forcibly separated from loved ones, they are chemically restrained with lethal handler drugs, and often moved from location to location under cover of night to prevent any contact with a loved one so as to maintain total sadistic control over an innocent’s life. Families often spend their entire life savings trying to rescue a loved one from guardianship, to no avail. The saying among the guardianship victims’ families is that there are only three outcomes—“you wind up broke, crazy, or dead.”

In the United States, there are more than 1.5 million “wards” at any given time. Thousands more are created every month in state probate court proceedings, and the number of new guardianships has been increasing by double digits nationally.

Court clerks who are tasked with auditing and watching out for fraud by the predators are overwhelmed. In almost every state, horror stories keep piling up, and lives are ruined, fortunes stolen, and families destroyed. It is a system that just does not pass the smell test. On any level, this is not how government is supposed to work. It is estimated that the money involved in guardianships exceeds 2-3 trillion dollars yearly!

Exposing this system is a challenge. Even though it is a real threat to anyone with assets of any kind, the court cases are called “mental health issues” and so are hidden from the public. Until you are targeted, you will never even hear of guardianship, but when it comes calling, with a knock on the door from a total stranger saying you are wanted in court in forty-eight hours for a hearing on whether you can manage your own affairs, it is already far too late.

To finish the article http://www.foreveryoungwny.com/

Is the Adult Guardianship and Probate Court System Being Used to Exploit Elderly People for Profit?

Mon, 23 Oct 2017 04:12:12 GMT

It is a nightmare that many families have faced over the last few years, but one that has gone on mostly without public notice. An elderly parent or loved one is suddenly stripped of his or her rights and forced into a court guardianship program that opens them up to financial exploitation, sometimes siphoning their life savings and estates until there is nothing left. Families desperate to find answers and get justice are stuck in years of court battles to rectify the situation.

Guardianship is the court removal of all rights, decision-making ability and estate control from an elderly party and his or her family, and transferring them over to a third party. The elderly party is alleged to be incapacitated and is made a ward of the court. Guardians are then given complete control to make all decisions for their “ward.”

In these situations, the guardian can be authorized by the court to take over 100 percent of the financial assets of an elderly person, including trust assets. They are able to change all financial-instrument ownership into their name, and they maintain control. They can do all of this while limiting who the elderly person can see or speak to, denying their wishes, and all the while charging their estate for everything they do while acting as a guardian. This can range from charging $150 an hour to open mail or $1,000 an hour to arrange a family visit.

Richard Black—director of Americans Against Probate Guardianship —knows all about this; his father-in-law was the victim of a guardianship situation that cost his family nearly $1 million in damages in just two years. The guardian in that situation was a longtime family friend who took advantage of Black’s father-in-law, Del Mencarelli, after he was diagnosed with Alzheimer’s.

Helen Natko, the guardian in question, was a gambler with extensive debt who defrauded Mencarelli out of $220,000 over the course of nine months. She was convicted of felony theft and exploitation of a vulnerable person on April 11, 2017. In July 2017 she was sentenced to five years’ probation and no gambling.

Black’s family spent $400,000 fighting both Natko and the courts to regain control of Mencarelli and his estate. During their court battle, Mencarelli died in Natko’s home with a gangrened foot that had been neglected and left untreated by his so-called guardian.

In addition to his own case, Black has investigated 400 other cases with similar circumstances.

Black told The Root that cases like his father-in-law’s are more the rule than the exception.

Black analyzed court records from 2013 to 2017 and found that the average annual cost of fraudulent guardianships is $250,000 per family. Families spend an average of $500,000 fighting these guardianships.

Meanwhile, the appointing courts provide immunity and protection to the guardians, and any complaints to law enforcement are referred back to the appointing courts.

To finish this article please visit http://family.findlaw.com/

Metro Detroit Woman Says Probate Guardianship Case Is Tearing Family Apart

Fri, 20 Oct 2017 04:23:50 GMT

Total strangers – lawyers who double as public officials – are taking over the lives of some of the most vulnerable people in our community – senior citizens and others who are disabled.

Several Metro Detroit families say they’ve now lost all control over their parents’ health care decisions and their finances.

911 Call: “911 what’s your emergency? Yes, my dad fell out of bed.”

At least 37 calls to 911 in just 10 months.

911 CALL: “I need you to stop yelling! I need you to stop… Mom, be quiet” Operator: “911 where is your emergency? West Bloomfield.”

Mila Kapusta says those are the kinds of emergency calls that have been made from her parents West Bloomfield condo, ever since a court-appointed guardian took over their lives.

“I really can’t talk about it, because I will break down. It’s hard to watch your loved ones suffer. That’s the hardest thing,” said Kapusta.

Mila’s father, Milan, is 94, and her mom, Janet is 93.

Mila tells the 7 Investigators that they both have dementia and need round-the-clock care, which she was helping to provide until she says one of her sisters locked Mila out of the house. Mila says she suspected abuse and went to Oakland County’s Probate Court.

“We noticed that my father had a pressure sore. And my parents were sleeping in their own urine,” said Mila. She says she wanted to take over the caregiving for her parents, but instead the judge created a visitation schedule for all four siblings. Now Mila is only allowed to see her parents three days a week.

During that November 23, 2016 court hearing, Oakland County Probate Judge Daniel A. O’Brien said on the record, “I’m appointing a public administrator, Barbara Andruccioli” as Milan and Janet Kapp’s guardian and conservator. That means the Kemp Klein attorney had total control over their lives, including their health and their money.

“Things went downhill from there,” said Mila.

Finish the article here. http://www.wxyz.com/

Guardianship of Incapacitated or Disabled Persons

Sat, 14 Oct 2017 04:26:14 GMT

A guardianship is a crucial legal tool that allows one person or entity to make decisions for another (the ward). Courts are tasked with establishing guardianships, and they typically appoint guardians in instances of incapacity or disability. Suppose, for example, that a person is put into a coma from a car accident. Unless that person has a durable power of attorney and medical directives already in place before the accident, the court will appoint a guardian to make both financial and non-financial decisions for the comatose person.

This is important because investments, real estate, etc. can lose their value over time if left unmanaged. There are also bills to pay – a guardian should make sure that excessive liabilities do not accrue during the period of incapacity.

Disabilities and Guardianship

Mental and physical disability or incapacity can involve severe and long-term conditions that impose great limitations upon an individual's ability to take care of themselves, express themselves verbally, earn a living, and live independently of the care of others. Such a disability reflects the necessity for a combination of treatments and services.

Guardianships for physically or mentally disabled or incapacitated persons have, in recent decades, been understood to facilitate the independence and self-reliance of the ward. Guardianships are limited as much as is reasonable in order to allow wards to exercise as much control over their lives as possible while maintaining as much dignity and self-reliance as possible. The desires of the wards are given primary consideration. Also, wards are allowed to do as much of their own caregiving as is physically and mentally possible.

Guardian Powers

Guardians are granted only those powers necessary to accomplish for the ward what the ward cannot accomplish independently. These powers may include :

Assuring the availability and maintenance of care for the ward.
Making financial decisions for the ward.
Making medical decisions for the ward.
Making sure that educational and medical services are maintained and adequate.
Submitting updates to the court of the ward's condition. These court updates describe the ward's living situation, status of mental and physical health based upon medical examinations and official records, provide a list of services being received by the ward, describe services rendered by the guardian, account for the ward's monetary assets, and any other information necessary to submit to the court in order for it to assess the status of the ward and the guardian's duties.

Guardians aren’t expected to micromanage a ward’s life, since they’re not providing caretaking services. One way to think of it is as a provision of decision-making services. Guardians step in when necessary to make decisions and give consent to things that the wards don’t have the capability of on their own. This is the limit of their duties.

How Is a Guardian Chosen?

To be chosen, a guardian has to be qualified to serve. State qualifications differ, but in general, to be qualified, a guardian must be a legal adult (18 years of age) and cannot have a felony or gross misdemeanor record implicating dishonesty (forgery, bribery, etc.). The guardian must themselves not be incapacitated, of course.

To finish this article please visit http://family.findlaw.com/

Problems with Guardianship Abuse Leading to Calls for Reform

Tue, 03 Oct 2017 04:37:25 GMT

A growing problem with adult guardianship abuse is giving rise to calls for reform of the system. Vulnerable elderly can get caught in the guardianship system, being harmed and exploited by the very process that is supposed to protect them.

A guardian is someone appointed by a court to make decisions on behalf of an incapacitated individual ("ward"). The guardianship process usually starts when a family member or social worker notifies the court that someone can't take care of him- or herself. The court often appoints a family member as guardian. However, if the family can't agree on a guardian or there is no family to act as guardian, the court may appoint a public guardian. Public guardians are supposedly neutral individuals who are hired to act in the ward's best interest.

Unfortunately, in many states, the lack of court oversight combined with poorly trained guardians has led to reports of abuse. Once the court appoints a guardian, that guardian has complete control over the ward's property and finances. Guardians can block family visits, determine where the ward will live, and sell property. In addition, guardians charge fees for their services that are payable from the elderly person’s bank account, which can cause corruption. When a senior gets caught up in the guardianship system, it can be very difficult to get out. There are many stories about seniors who are confused and overwhelmed after losing control of their lives to a guardian they don't know.

In response to complaints by advocacy groups about guardianship abuse, Florida passed a law in March 2016 instituting changes to its public guardian system. The law creates an Office of Public and Professional Guardians that is required to create standard practices and rules for public guardians. The office also has enforcement power to revoke a guardianship.

If you think a loved one needs a guardian, consult with your attorney to determine the best steps. There may be less restrictive alternatives to guardianship.

Original Article From www.Elderlawanswers.com

What's the Difference Between Guardianship and Power of Attorney?

Thu, 28 Sep 2017 04:45:15 GMT

A power of attorney and a guardianship are tools that help someone act in your stead if you become incapacitated. With a power of attorney, you choose who you want to act for you. In a guardianship proceeding, the court chooses who will act as guardian.

Power of attorney

A power of attorney is an estate planning document that allows a person you appoint to act in place of you for financial purposes when and if you ever become incapacitated. You may limit a power of attorney to a very specific transaction or you may grant full power to someone over all of your affairs. For more information about powers of attorney, click here .

Guardianship

If an adult becomes incapable of making responsible decisions due to a mental disability, the court may appoint a substitute decision maker, often called a "guardian," but in some states called a "conservator" or other term. Guardianship is a legal relationship between the guardian and the person who because of incapacity is no longer able to take care of his or her own affairs (the "ward").

The guardian can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a "conservator."

Because guardianship involves a profound loss of freedom and dignity, state laws require that guardianship be imposed only when less restrictive alternatives, such as a power of attorney, have been tried and proven to be ineffective.

Original Article From www.Elderlawanswers.com

Guardianship in The U.S.: Protection or Exploitation?

Mon, 25 Sep 2017 05:00:59 GMT

If you have any questions Kentucky Guardianship is here help (859) 543-0061

Ginger Franklin was just shy of her 50th birthday when she fell down the stairs of her Nashville-area townhouse in 2008. A marketing representative for Sam’s Club, she was taken to the hospital with a severe brain injury. Doctors weren’t sure if she would survive.

Since Franklin had not designated anyone to make decisions for her if she became incapacitated, and with no immediate family, her aunt was advised to petition the court for a guardian. The guardian, a lawyer appointed by the county, placed her in a group home for seriously mentally ill adults.

But Franklin was not mentally ill. And she did what no one expected her to do: she recovered.

When she returned home from a rehabilitation center seven weeks later, however, the guardian “told me that I didn’t have a home anymore and that my townhouse was empty,” Franklin said.

As is common in guardianship cases , the court granted permission for the guardian to sell Franklin’s home and its contents. The owners of the group home where she was placed then put Franklin to work: She was forced to do the grocery shopping, cook, dispense medication, watch over the other residents of the house and clean the owners’ personal home — for no pay, Franklin said. Meanwhile, she was paying $850 monthly rent to the owners, plus $200-per-hour attorney fees to the guardian for such tasks as writing checks for Franklin’s expenses and leaving phone messages, according to a court document.

With the help of an advocate, and media attention, Franklin fought the guardianship in court, winning her freedom in 2010 after two long years of having no legal rights. She now lives independently in the Nashville area and has sued the guardian .

“It’s quite an understatement to say I was devastated,” she told Next Avenue. “I don’t trust people anymore. I lost everything — because I fell down the stairs.”

More Will Enter 'The Danger Age'

Franklin’s case, originally investigated by The Tennessean newspaper, is just one of many cases of guardianship and conservatorship abuse across the country.

In a 2010 report , the U.S. Government Accountability Office (GAO) found hundreds of allegations of physical abuse, neglect and financial exploitation by guardians in 45 states and the District of Columbia between 1990 and 2010. Guardians also stole $5.4 million in assets from their wards in that period, the GAO said. (The GAO is currently working on an updated report.)

As the boomer population moves into old age, the numbers of people affected by guardianship and conservatorship will rise “tremendously,” said Jennifer Wright, a professor at the University of St. Thomas School of Law in Minneapolis who directs the school’s Elder Law Practice Group.

“There are more of us who are going to enter the danger age,” she said.

With as little as a single document — and in some cases, not even a court hearing — older adults can see their most basic rights stripped away. They cannot vote, get married or get divorced. A family member or a stranger appointed by the court will decide where they will live, how their money will be spent, what health care they will get or not get, when they will go out, when and where they may travel and whom they are allowed to see.

Guardianships: Difficult to Challenge

Rarely is an “incapacitated person” or ward able to get a guardianship or conservatorship terminated — until death, that is. Franklin was, in that sense, very lucky.

“Go ahead and see what you can do, because you have been deemed incapacitated, so everything you say or do is meaningless,” said Brenda Uekert, principal court research consultant with the National Center for State Courts. “You can’t even get an attorney, because a judge has already determined that you don’t have the ability to make decisions for yourself.”

Those who do try to fight often end up paying exorbitant amounts of money.

“Many families go bankrupt because they believe if they hang in there long enough the system will work for them, and it doesn’t,” said Elaine Renoire,

a director of the National Association to Stop Guardian Abuse in Loocootee, Ind., a victims’ rights group. The No. 1 complaint she hears: guardians who try to isolate older adults from their loved ones.

In her 2014 book, The Con Game: A Failure of Trust , business professor T.S. Laham of Diablo Valley College in the San Francisco Bay Area wrote that America’s guardianship system is “an open invitation to potential abuse.” (Next Avenue wrote about the book last year.)

Definitions Inconsistent, Numbers Elusive

What is meant by the terms “guardian” and “conservator” varies depending on the state. National groups working on reform efforts use “guardian” to refer to a person appointed by the court to make decisions over an individual and “conservator” to refer to a person appointed to handle the estate. Some use the terms interchangeably or use one to cover both situations.

It is difficult to impossible to know how many people are under guardianship or conservatorship in the United States, experts said. Many states do not do comprehensive record-keeping. A 2013 AARP report gave a “best guess” estimate of the number of adults under guardianship nationally at 1.5 million, but added the data “are scant and vary in quality.”

Despite the lack of statistics, those familiar with the system say the vast majority of guardians and conservators, perhaps 80% or more, are relatives of the incapacitated person.

Idaho and Minnesota are the only states that track the amount of money being controlled by guardians or conservators; the combined total for just those two states is over $1 billion, according to Uekert.

Guardianship and Conservatorship

Fri, 22 Sep 2017 05:03:13 GMT

Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions due to a mental disability, the court will appoint a substitute decision maker, often called a "guardian," but in some states called a "conservator" or other term. Guardianship is a legal relationship between a competent adult (the "guardian") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward").

Some incapacitated individuals can make responsible decisions in some areas of their lives but not others. In such cases, the court may give the guardian decision making power over only those areas in which the incapacitated person is unable to make responsible decisions (a so-called "limited guardianship"). In other words, the guardian may exercise only those rights that have been removed from the ward and delegated to the guardian.

Incapacity

The standard under which a person is deemed to require a guardian differs from state to state. In some states the standards are different, depending on whether a complete guardianship or a conservatorship over finances only is being sought. Generally a person is judged to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions. A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.

Process

In most states, anyone interested in the proposed ward's well-being can request a guardianship. An attorney is usually retained to file a petition for a hearing in the probate court in the proposed ward's county of residence. Protections for the proposed ward vary greatly from state to state, with some simply requiring that notice of the proceeding be provided and others requiring the proposed ward's presence at the hearing. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint an attorney if the allegedly incapacitated person cannot afford a lawyer.

At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.

A guardian can be any competent adult -- the ward's spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case she ever needs a guardian.

The guardian need not be a person at all -- it can be a non-profit agency or a public or private corporation. If a person is found to be incapacitated and a suitable guardian cannot be found, courts in many states can appoint a public guardian, a publicly financed agency that serves this purpose. In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the ward's life -- people who are both aware of and sensitive to the ward's needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.

Reporting Requirements

Courts often give guardians broad authority to manage the ward's affairs. In addition to lacking the power to decide how money is spent or managed, where to live and what medical care he or she should receive, wards also may not have the right to vote, marry or divorce, or carry a driver's license. Guardians are expected to act in the best interests of the ward, but given the guardian's often broad authority, there is the potential for abuse. For this reason, courts hold guardians accountable for their actions to ensure that they don't take advantage of or neglect the ward.

The guardian of the property inventories the ward's property, invests the ward's funds so that they can be used for the ward's support, and files regular, detailed reports with the court. A guardian of the property also must obtain court approval for certain financial transactions. Guardians must file an annual account of how they have handled the ward's finances. In some states guardians must also give an annual report on the ward's status. Guardians must offer proof that they made adequate residential arrangements for the ward, that they provided sufficient health care and treatment services, and that they made available educational and training programs, as needed. Guardians who cannot prove that they have adequately cared for the ward may be removed and replaced by another guardian.

Alternatives to Guardianship

Because guardianship involves a profound loss of freedom and dignity, state laws require that guardianship be imposed only when less restrictive alternatives have been tried and proven to be ineffective. Less restrictive alternatives that should be considered before pursuing guardianship include:

Power of Attorney. A power of attorney is the grant of legal rights and powers by a person (the principal) to another (the agent or attorney-in-fact). The attorney-in-fact, in effect, stands in the shoes of the principal and acts for him or her on financial, business or other matters. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used unless and until he or she becomes incapacitated. (For more on powers of attorney, click here .)

Representative or Protective Payee. This is a person appointed to manage Social Security, Veterans' Administration, Railroad Retirement, welfare or other state or federal benefits or entitlement program payments on behalf of an individual.

Conservatorship. In some states this proceeding can be voluntary, where the person needing assistance with finances petitions the probate court to appoint a specific person (the conservator) to manage his or her financial affairs. The court must determine that the conservatee is unable to manage his or her own financial affairs, but nevertheless has the capacity to make the decision to have a conservator appointed to handle his or her affairs.

Revocable trust. A revocable or "living" trust can be set up to hold an older person's assets, with a relative, friend or financial institution serving as trustee. Alternatively, the older person can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older person become incapacitated.

Original Article From www.Elderlawanswers.com