Thursday, September 30, 2010
Amalie Phelan—RIP 080974
As a reporter, I have researched and written a number of articles detailing the unscrupulous “business practices” of conservator Melodie Z. Scott and her attorney, J. David Horspool. The articles, published in the San Bernardino County Sentinel and elsewhere, are available in the Sentinel's archives and elsewhere on the web. This particular document shall constitute my own statement as to what transpired in the conservatorship of my mother, Dr. Amalie Phelan under the reins of Melodie Scott. While on the surface this appears to be a “civil” matter, it is anything but. As my research into her practices has indicated, Melodie Scott has been euthanizing her clients and stealing their money with the full sanction of the justice system, possibly for decades. Due to the complicity of all those assisting Scott (either by commission or omission)—Bar certified attorneys, judges, police, Adult Protective Services, the California Department of Justice and the FBI—this qualifies as a systemic violation of civil, economic and social human rights.
Given the nature and scope of systemic complicity and the fact that cases of this nature cannot be presented to the U.S. Supreme court it is clear that there is no access to remedy or justice within U.S. domestic law. Melodie Scott does not act alone. We have a system in place which sanctions these crimes against the lives and property of U.S. citizens. I submit that my mother was systemically victimized to death.
My mother, Dr. Amalie Phelan, first visited Attorney Horspool in the fall of 2001. My sister, Judith Phelan, had been residing with my widowed mother. After Dad died in 1997, my mother and I discovered that my sister Judith Phelan had begun stealing from the family estate, at one time valued at approximately $1 million dollars. In an effort to curtail the hemorrhaging of the estate by my sister, and reluctant to initiate criminal proceedings against her, my mother and I approached J. David Horspool, seeking a fiduciary to help handle the funds of my mother, who was in her eighties. Horspool requested payment of $5000 for his services in locating a fiduciary and was so paid.
Horspool then stated he had knowledge of an excellent fiduciary, a Melodie Z. Scott, who is president of C.A.R.E, located at 25 E. State Street. At no time did he disclose that Scott was his established client, and had been so for many years.
In December of 2001 my mother and I met with Melodie Scott and Horspool. Scott expressed consternation at my sister's behavior, and stated she would "cut Judith off." Not wishing to leave her elder daughter destitute (Judith, though well-educated, is psychiatrically and physically disabled and does not work), my mother expressed her wish that Judith not be "cut off" but be granted adequate funds for her needs.
On December 2, 2001, my mother signed a document nominating Melodie Scott as conservator of her person and estate. In the Living Will set up by my parents in 1997 by Attorney Mark Anderson of Escondido, a conservator was named in advance should this prove necessary. An old family friend, James Henderson of Riverside, had been designated as "stand-by" should conservatorship prove necessary. He was also named successor trustee.
In light of the actions embarked on by Horspool and Scott against the best interests of Amalie and me, her signing the conservatorship nomination proved disastrous.
Almost immediately, Scott started funneling thousands of dollars a month to Judith. Many of these monies were funneled through my mother's Bank of America account (# 07239-10914 ). Scott later was to falsely deny any knowledge of this, my mother's primary bank account. Scott placed aides in my mother's home, ostensibly to care for Amalie, although none were needed before. On several occasions she threatened to call the police on me when I came to visit Amalie. Very shortly, Amalie requested I find her an attorney to consult on this matter, as she was distressed by Scott's behavior.
The first week in March, 2002, my mother and I visited a probate attorney in Laguna Hills. Immediately, Scott stopped payment on my trust fund. As a result of her refusal to abide by the December 18, 2001 court order to distribute "up to $1500 a month" to me, I was later that year to lose my apartment and my car. I had been on 100% disability at that time and was named as a current beneficiary in my parents' trust.
I ignored Scott's threats and continued my weekly visits to my mother. I noticed my mother's health was worsening. In June of 2002 I received a desperate phone call from Amalie. "I'm very ill and no one is paying attention to me,"she reported. I took immediate action.
At that time, both my sister and C.A.R.E. employee Linda Garcia were residing in my mother's home and being paid by Scott to care for Amalie.
I drove to Temecula, to find my mother too ill to walk unassisted. Immediately, I drove her to the Emergency Room at Rancho Springs Hospital in Murrieta. She was examined and admitted, and went into surgery, where a pacemaker was inserted to regulate her heartbeat.
On returning to her home, I examined my mother's medicine bottles. My mother had been a cardiac patient for some time. She had gone through two previous bypass surgeries, had a history of angina and was on cardiac medication. Indicated by full, undispensed pill bottles, there were at least two months of heart medicine which had been filled and withheld from my mother.
I called the police. Linda Garcia had already fled the scene, never to be seen by me again. When the police arrived, Judith went into her room and locked the door behind her.
The police counted the pills. Mrs. Scott called the house and told the reporting officers that I was crazy and to lock me up. From what I can glean from other Scott victims, this is a tactic that she has used against protective and concerned family members of conservatees, repeatedly.
When I received a copy of the police report several weeks later, the police had misreported the pill count. I contacted the Temecula Police Department immediately. I was told not to contact them again.
The situation worsened. Three days after my mother's hospitalization and surgery, Riverside Probate Judge Stephen Cunnison issued a Temporary Restraining Order against me, stating I was not to intervene in my mother's care. The declaration in support of the Restraining Order, concocted by Melodie Scott and David Horspool, is replete with lies. All the opinions they proffered in support of the TRO, certainly damning if true, omitted one basic fact--Amalie was immediately trundled into surgery to correct her failing heart. Attachment 1 is from my mother's medical records and supports this claim. The application for the TRO is also attached to this email.
At this point the story takes a shocking turn. The TRO came to an initial hearing in June odf 2002 in Commissioner Joan Ettinger’s court. Ettinger issued an order which on the surface appeared to be a humane mitigation of a complete refusal to allow me to see my own mother. She gave guidelines under which I could phone and visit Amalie, under supervision.
In fact, Burgess issued TWO minute orders that day for the same hearing. The order after hearing I was served with was identical in all aspects-- except for one-- with the order after hearing filed with the court. The difference was that the one filed in court mandated a gag order—that I was not to discuss the Restraining Order or conservatorship proceedings with Amalie. The order I was served with omitted this caveat, which was never mentioned in court. As it would have been natural for Amalie and me to discuss these matters, I could possibly then be charged with contempt of court and jailed for violating a court order. And that would be the court order filed with the court, not the one I was duplicitously served with.
Both orders bear Burgess’s signature. This was an apparent attempt to entrap and imprison. Fortunately, an anonymous clerk warned me and mailed me BOTH documents before I had the opportunity to speak with Amalie and blunder into jail.
The final hearing on the RO took place on August 1, 2002. I sat expectantly in the courtroom all morning, but there was no hearing on the TRO. In fact, Judge Stephen Cunnnison signed the order into permanency without granting me my legal right to a hearing, thus stripping me of my rights. Attachment A, in the link at the bottom, contains the order after hearing from that day.You will note that the order does not mention any parties present in court.
Jack Smith of West Hollywood accompanied me to court that morning. His letter-- detailing the actions of the Court--constitutes Attachment B in the link below this report. This document substantiates what is revealed in examination of the minute order--that there was no hearing, and that I was stripped of my right to due process.
Family friend and journalist Patricia Lambert had flown in from Arizona to interview Amalie in the facility in which she had been placed. Lambert produced two reports (Attachments C and D) again archived in the bottom link) recording Amalie's wish to end the conservatorship and to restore her relationship with me, to whom Lambert referred as "Amalie's lifeline." Cunnison ignored the reports.
I had been granted permission by the Court to visit my mother "under supervision." On September 28, 2002, I handed Amalie a legal document to sign, prepared by Los Angeles Attorney Jeff Lustman (Attachments E and F, bottom link). Probate Code 1863 delineates the legal right to a jury trial to determine the fate of the conservatorship. With a Judge issuing Restraining Orders for life saving efforts by a loving daughter, then depriving the restrained party to her legal right to a hearing, it was felt that Amalie would have a better chance with a jury than with this obviously corrupt judge.
Cunnison denied her request. His remarks to Attorney Lustman state that the request needs to be tendered by Amalie's own attorney. According to Probate Code 1861, this is simply untrue.
Cunnison then unleashed a second TRO against me. The declaration for this TRO, prepared by Attorney J. David Horspool, makes no attempt whatsoever to approximate reality.
I stood in front of the compromised Stephen Cunnison at this hearing, and informed him that he signed the first Restraining Order without a hearing. I asked him to recuse himself. He refused. I produced the Jack Smith letter and stated, for the record, that my mother had incurred surgery and a pacemaker as a result of my bringing her to the Emergency Room.
Cunnison shot me a dark look. "That was another matter," he said. He then cleared the courtroom. When the matter was finally dealt with, at the end of the day, I stood in a courtroom emptied of all possible witnesses.
"Restraining Order upheld," was all he said.
I walked out into the unrelenting sunlight of an October day, stained by contact with a darkness I could not comprehend.
The second RO, which is attached in the bottom link, prohibits me from contacting the police, the FBI, the CIA (??!!), Adult Protective Services or the Ombudsman's Office. Aside from the bizarre and irrelevant inclusion of the Central Intelligence Agency in the Restraining Order, I was effectively barred from contacting any agency which might assist in my mother's situation. And the fact remains that a judge cannot legally restrain a citizen from contacting law enforcement. This did not seem to bother Cunnison.
Months later, the source of the hemorrhaging of the estate by Judith surfaced. She had been forging my endorsement on checks made out to me by Amalie. Judith, who had studied calligraphy for many years, had been telling Amalie that I was in need of large sums of money, then forging my endorsement on these checks and depositing them into her Wells Fargo account. She had arranged joint signing on my mother's Bank of America and Washington Mutual accounts in order to facilitate her crimes. Attachments 3 and 4, above, contain evidence of this fraud by my sister.
When I contacted the Temecula Police Department to report this, Detective Dennis Winker cited the second RO and told me I was "not allowed" to contact him. "You'd better watch out," he warned me.
Due to this Restraining Order, I was not allowed to see Amalie again until February of 2004. Horspool and Scott's retaliation against me had decimated my income. I had lost my apartment, my car and one-third of my body weight, due to the lack of money for food. There was no longer even a remote possibility of hiring an attorney.
In 2004 I was granted permission to visit my mother several times. In late April, I was unable to reach her at the home in which Melodie Scott had placed her, a privte home in Loma Linda. I called Scott and Horspool to find out what had happened to her. They did not return my calls.
I visited the FBI building in Los Angeles, California and spoke with an agent. Nothing was done. I made a number of calls to the Civil Rights division of the FBI in Riverside and spoke with an agent at that office. Nothing was done.
In late May, after dozens of calls to Scott and Horspool concerning the well-being of my mother, I finally reached case manager Christina Erickson at Scott's office. She informed me that my mother had passed away on May 4. She had died alone and had been buried without my notification.
I had contacted Riverside Adult Protective Services nearly a dozen times early on in the conservatorship, pleading with that agency to visit my mother. They are mandated to respond but did not. I had called again when she was hospitalized in June of 2002. They never went out. I called one more time when I was unable to reach Amalie in April of 2004. The San Bernardino Adult Protective Agency actually went out one time to see how Mom was doing, several days after her death.
Melodie Scott had gone to court in January of 2003 and secured the Power of Health Care Decisions over my mother. According to the will, this had been accorded to my sister Judith. I had beseeched my sister to go to court and to challenge this move by Scott. Judith, who was receiving substantial monies from Scott, refused.
Following Amalie’s passing, Scott, in concert with the court and other agencies of the government, continued on with what can only be termed a bizarre and vicious vendetta. A letter written by Horspool, claiming I was committing felonies and he was reporting me to the police was posted all over the internet. Homeless and broke, I had begun to write and do radio interviews on the problems inherent in conservatorships. When Horspool’s letter hit the fan, I went to court in Santa Monica, California to obtain a restraining order against him in May of 2006. Although Judge Lefkowitz denied the order, citing it would constitute prior restraint, she refused to grant him his court costs.
Two years later, Horspool went back to Riverside court and filed a false statement saying he was granted his court costs. Immediately, I filed the orders from Lefkowitz, showing this had been denied.This is contained in Attachment E. But in defiance of the California State Constitution, Commissioner Burgess overturned Lefkowitz’s decision and granted him permission to take the money out of my trust fund. The State Constitution does not allow a parallel court to reverse a decision made in another county, but Burgess’s action went through nonetheless. And I was robbed, again.
Further evidence of financial fraud is provided in probate examiner Charles Mayr's report, attached as Attachments 5 to 8.
My work as a journalist continued to focus on conservatorships. Melodie Scott’s fiduciary license was denied by the Board of Consumer Affairs recently and she was removed from my case as well as most other cases, although curiously C.A.R.E., Inc. is still open for business. When she was removed from my case, I filed suit. In her final accounting, she removed an extra $25,000 from my Trust to defend against all present and future suits entered by me. I protested but to no avail.
The Trust, which would have lasted my lifetime, is almost depleted. Judge Tranbarger has refused to grant me discovery in terms of the records which would dynamically prove the financial fraud. Specifically, he refuses to command Scott to produce the Bank of America records and refuses to allow me access to records of monies paid to my complicit sister, Judith.
Some minimal discovery was allowed and I received from David Horspool copies of photographs which were taken at my mother's home of her belongings at the time Scott was having things moved to storage. As the new trustee had made an inventory and many, many, many items which showed up in the photographs did not show up in the inventory, I then filed a report with the San Bernardino Sheriffs. They simply refuse to act, investigate or to assign this to the DA. The evidence of theft of valuable assets is overwhelming —antiques, original artwork and more.
Judge Tranbarger initially refused to step down from the case.. He has been confronted with the fact that the county is now a party to the case (the county was named as the new trustee) and that there is thus an inherent conflict of interest which would mandate moving the jurisdiction—to wit, all judges in Riverside county , who are state employees, are also paid over $6,000 a year by the county in “special benefits.” This is a conflict of interest and the case needs to be moved to a jurisdiction where the judge is not being paid by a party to the case. Tranbarger again violated the law and refused to relinquish jurisdiction and appropriately change the venue.
The case was suddenly transferred to Judge Cunnison after I began to pull up records, with the help of an attorney, concerning Tranbarger's financial transactions. The suit ended up in front of Judge Cunnison and on May 5, 2010 in a hearing which lacked proper notice (the hearing was scheduled on April 26 and CCP 1013 (a) stipulates that an extra ten days for service be accorded to those living out of state. My address at the time was in the state of Oregon and the rescheduling did not meet the standard of law set by CCP 1013) my case was dismissed.
Parenthetically, Tranbarger was the third judge to be suddenly pulled off my case when I started to research the judges and their property loans. The first to be yanked off the case, suddenly and without explanation was Commissioner McCoy, followed by Judge Sharon Waters.
I am heartbroken. I have lost my wonderful mother to these monsters and have lost everything I owned—my car, my apartment, most of my belongings and keepsakes I was to inherit from my parents. Most recently, I had telephoned Melodie Scott to get her response to a story I was writing for the San Bernardino County Sentinel which named her, and she phoned me back and left me a clear and explicit death threat on my voicemail. I filed a police report but they refuse to file charges against her. How did it get to be open season on me? And how can it be that conservator Melodie Scott gets to consistently shorten the time of her conservatee’s lives through medical negligence and steal from her victims and there is nothing that can be done about it?
I call these crimes felony murders. Black’s Law Dictionary defines felony murder as a murder committed in the act of another crime, such as theft or embezzlement. In the State of California, these are “special circumstances” crimes and could incur the death penalty. But no county or state agency has ever filed criminal charges against Scott for reports of conservatorship crimes, although five separate county D.A.’s have received criminal complaints against her. Apparently, killing off old and disabled folks in the State of California is rewarded and those who complain are ignored or, should they become insistent, are attacked. The refusal of the justice system to address these complaints elevates the situation surrounding Melodie Scott to judicial complicity in multiple felony murders, as the government continues to allow her and other conservators, in concert with the judges and medical professionals, to kill and rob their own citizens.
Given the recent revelations of misconduct at the Professional Fiduciaries Bureau, I have grave doubts that this report will be properly investigated and that appropriate action will result. The issues that have come to light concerning the PFB include the fact that the sole analyst, Angela Bigelow, has inappropriately closed at least one complaint and falsely claimed to the complainant, Janis Schock, that she lacked jurisdiction. Other evidence of corruption at the PFB includes the fact that DCA legal counsel Gary Duke is making false statements in response to Public Records Act requests in an attempt to inhibit the release of information which is contained in the annual report and is thus available to the public. There is also growing concern on the part of at least a dozen complainants who claim that their reports were never responded to. My most recent public records act request of Setember 1, 2010 was simply ignored, in defiance of the mandate for timely response contained within the Public Records Act. All these issues feed the perception that the PFB considers itself above the law and is behaving in a manner contemptuous of the law which brought it into being.
I therefore submit this report with reservations as to the integrity of the PFB and with dismay at the repeated failure of the system to conform with the law. The doors are closing everywhere on conservatorship victims. My mother and I were profoundly and illegally victimized by Melodie Scott and the fact that there is systemic complicity does not mitigate my quest for justice. I can only hope that the PFB will respond appropriately to this complaint. The evidence is growing that this agency is only serving to provide another layer of protection to murderers and thieves, cloaked as professional conservators.
The documents cited above may be found at this link: http://la.indymedia.org/uploads/2006/12/letterhead.pdf
The remainder documents are attached.
Janet C. Phelan
September 23, 2010
Sunday, September 26, 2010
I picked up from this lively discussion from a Elder Abuse , ocasionally feeble attempts to legislate elder abuse protection guidelines are talked about and here are some of the comments, followed by the proposed new rules,followed by my comments;
Voiding a power of attorney should be illegal and it is absolutely unconstitutional.
The person was competent when they named the power of attorney and their agent and this is overriding that person’s wishes.
Someone should write these sorry legislators and ask them why don’t they just add that a guardianship voids an advanced directive and the persons last will and testament too.
They cannot go back in time and declare that person incapacitated.
These idiots are nothing but a bunch of crooks.
Who do we write to ?
If you're talking about the suggestions from WA State - that piece of junk was put together by the WSBA - Elder Law Committee
. They created it and sent it out in the hope of finding a sponsor. I am writing to those to whom they sent it (WA State legislators) and also to the committee itself. They didn't address the issues and they deliberately confused things by mixing minor guardianships with the adult g's. And that is saying nothing about the ease with which they dismissed poa's. You can write to:
Washington State Bar News
1325 Fourth Avenue, Suite 600
Seattle, WA 98101-2539
You can direct it to the Elder Law Committee.
If you want, forward those comments to Rep. Moeller's office. His aide told me that they want comments and that he hadn't decided if he was going to sponsor the bill. If you want to send him a note, his email address is: Jim.Moeller@leg.wa.gov
I think this bill sucks! They lost me when they stated that all existing powers of atty are VOIDED when a guardian is appointed. This is just more of the same laws to abuse and exploit the victims they are targeting
BRIEF DESCRIPTION: Implementing recommendations from the Washington state bar association elder law section's executive committee report of the guardianship task force.
AN ACT Relating to the implementation of recommendations from the Washington state bar association elder law section's executive committee report of the guardianship task force; amending RCW 11.88.095, 11.88.140, 11.92.053, 11.92.040, and 11.92.050; and adding a new section to chapter 11.88 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 11.88.095 and 1995 c 297 s 5 are each amended to read as follows:
(1) In determining the disposition of a petition for guardianship, the court's order shall be based upon findings as to the capacities, condition, and needs of the alleged incapacitated person, and shall not be based solely upon agreements made by the parties.
(2) Every order appointing a full or limited guardian of the person or estate shall include:
(a) Findings as to the capacities, condition, and needs of the alleged incapacitated person;
(b) The amount of the bond, if any, or a bond review period;
(c) ((When the next report of the guardian is due;
(d))) The date the account or report shall be filed. The date of filing an account or report shall be within ninety days after the anniversary date of the appointment;
(d) A date for the court to review the account or report and enter its order. The court shall conduct the review within one hundred twenty days after the anniversary date of the appointment and follow the provisions of RCW 11.92.050;
(e) A directive to the clerk of court to issue letters of guardianship that expire on the date specified under (d) of this subsection for the review;
(f) Whether the guardian ad litem shall continue acting as guardian ad litem;
(((e))) (g) Whether a review hearing shall be required upon the filing of the inventory;
(((f))) (h) Whether a review hearing is required upon filing the initial personal care plan;
(i) The authority of the guardian, if any, for investment and expenditure of the ward's estate; and
(((g))) (j) Names and addresses of those persons described in RCW 11.88.090(5)(d), if any, whom the court believes should receive copies of further pleadings filed by the guardian with respect to the guardianship.
(3) If the court determines that a limited guardian should be appointed, the order shall specifically set forth the limits by either stating exceptions to the otherwise full authority of the guardian or by stating the specific authority of the guardian.
(4) In determining the disposition of a petition for appointment of a guardian or limited guardian of the estate only, the court shall consider whether the alleged incapacitated person is capable of giving informed medical consent or of making other personal decisions and, if not, whether a guardian or limited guardian of the person of the alleged incapacitated person should be appointed for that purpose.
(5) Unless otherwise ordered, any powers of attorney or durable powers of attorney shall be revoked upon appointment of a guardian or limited guardian of the estate.
If there is an existing medical power of attorney, the court must make a specific finding of fact regarding the continued validity of that medical power of attorney before appointing a guardian or limited guardian for the person.
NEW SECTION. Sec. 2. A new section is added to chapter 11.88 RCW to read as follows:
A guardian or limited guardian may not act on behalf of the incapacitated person without valid letters of guardianship. Upon appointment and filing the bond, unless the bond was dispensed with by the court, the clerk shall issue letters of guardianship to a guardian or limited guardian appointed by the court in the following form, or a substantially similar form:
Lawmakers aren't stupid, they know exactly what they are doing and what group these laws will favor. I have you know that when I went to court to terminate my mother's g'ship the POA was the only thing standing in the way and it was the deciding factor in ending the g'ship, it was like a thorn in the Guardian's side and it cost that Guardian lots of missed income by being forced to terminate the guardianship because of that pesky Power Of Attorney.(POA)
Legislature to void Wills,Directives,Etc does not have to be written it is implied that G'ships already voids these! As it was explained to me by the Guardian lawyer, Wills, Directives,Etc are normally valid but when extenuating circumstances such as a challenge to these documents by a disgruntled family member, they are automatically left up to the discretion of the court to decide.
Of course POA's executed when a person is competent should stand as wills , directives and other pre planning documents, unfortunately some of you are living in the past when we were a nation of laws, look around you and stop drinking the kool aid.
Laws no longer matter.
744.3215 Rights of Persons Determined Incapacitated.--
1) A person who has been determined to be incapacitated
(2) The order appointing a guardian must be consistent with the incapacitated person's welfare and safety, must be the least restrictive appropriate alternative, and must reserve to the incapacitated person the right to make decisions in all matters commensurate with the person's ability to do so.
How much clearer does it have to be that a G'ship is the avenue of last resort as long as there are qualified family members to care for the elder yet the probate court graveyard is littered with family members whose naiveté's let them to invest their own money fighting the courts to take care of their own loved ones thinking that justice would prevail.