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FOR the LOVE of MOTHER

A Nation Of Laws ! For Whom? New Bill Sucks

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 ?

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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.
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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
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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
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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:

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Editors comments:

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.

Ray Fernandez

Elders : Between a Rock and a Hard Place

by Angela Woodhull ,Ph.D.,

If an elderly person has gifted assets to one of her children, then that child "must" be committing undue influence or exploitation in order to have received such a gift.

So, imagine the situation this puts us and our loved ones in.

1. False accusation made by jealous relative that we are "exploiting" the elderly.

2. Professional guardian steps in, collaborating with the false accusation.
There is no way around it. The innocent party is then forced to hire counsel to defend against the false accusations. Even if the innocent family member "wins", the cost of winning is hundreds of thousands of dollars.

As the judge points out in this article, a family member who receives a power of attorney becomes "suspect." So, this creates a "Catch 22" for the elderly person. To create a power of attorney for the child she prefers means that she will now be placed on the "radar" of the professional guardians. To NOT create the power of attorney means that the coniving, meddling, jealous child can step in and create a guardianship. Either way, the favored child is portray in a bad light through the courts. Since the judges automatically assume that a gift of money or a power of attorney means "exploitation," the elderly person is left with no means to legally transfer her assets during her lifetime without creating havoc upon herself and her loved one (the favored child who is then made to look like Osama Bin Laden.)

POA Fraud is Huge Tool For Elder Financial Abuse

Flashback: the FBI on guardianships, poa fraud

Posted: 23 Mar 2010 05:38 PM PDT

Policing the guardians: combating guardianship and power of attorney fraud
Mathis E. McRae
February 1994
The FBI Law Enforcement Bulletin
http://findarticles.com/p/articles/mi_m2194/is_n2_v63/ai_15267880/?tag=content;col1

People often envision robbery and assault by some unknown individual or physical or mental abuse by a known caregiver as typical crimes against the elderly. However, these are not the only cases of eider abuse. One area in which law enforcement has seen an increasing number of complaints is financial exploitation of the elderly through the mismanagement of their income and assets. These incidents usually occur when individuals are given legal guardianship or power of attorney over the victim’s finances.

This article discusses what constitutes guardianship and power of attorney fraud and the problems inherent in such cases. It also offers investigators and prosecutors advice in handling these cases. Finally, it suggests ways to decrease the number of financial exploitation crimes.

GUARDIANSHIP FRAUD

Appointed by the court, guardians generally provide care for individuals unable to care for themselves. This often means making decisions that affect every aspect of their lives, including their persons, property, and finances. The problem with this arrangement, as the Pepper Commission on Aging(1) points out, is that it follows an “all or nothing concept.” People judged incompetent lose all of their rights and seldom regain them, unless they can prove total recovery from the conditions that led to their being judged incompetent. This sometimes leads to individuals abusing their positions as guardians. In an attempt to correct this problem, the Florida Legislature created the Study Commission on Guardianship Law to investigate abuses and pinpoint deficiencies in Florida’s system, to receive public input, and to recommend changes in the law.(2) As a result, Florida now uses a flexible adjudication arrangement that allows the court to establish a guardianship tailored to the particular disabilities of the incapacitated person. Based on their capabilities, individuals can retain some of their rights, while surrending others. In short, the court may appoint an individual as a guardian of the person, the person’s assets, or both. Overall, this law allows for closer scrutiny by the court of the manner in which the ward’s assets are spent.

Law enforcement agencies sometimes add to the problems caused by these judicial constraints. They, too, may see power of attorney holders as having cart blanche over conveyors’ finances.

Law enforcement professionals need to recognize that individuals can be guilty of theft or exploitation of aged adults through the improper use of funds for their own profit, as well as through the misuse of a power of attorney. Once investigators and prosecutors realize this, they can turn their attention to the very real problem of proving wrongdoing.

PROOF OF THE OFFENSE

Suspects usually gain access to their victims’ bank accounts by presenting the power of attorney to the bank or by having their victims agree to have a second signature on the accounts in case of emergency. Therefore, proving financial exploitation usually requires accessing checking and savings accounts by subpoena or search warrant; retrieving canceled checks, statements, and items of deposit; and determining the flow of the alleged victim’s funds. If suspects clearly profit from using victims’ funds, and victims meet their State’s definition of aged or disabled, the issue becomes one of intent. That is, investigators must determine whether suspects intended to exploit victims or whether they believed, in good faith, that they had the right to use victims’ funds for that particular purpose. In most jurisdictions, if any evidence, however minimal, exists to prove that the exploitation was intentional, the court would allow a jury trial.

As noted, case law relating to power of attorney fraud places a higher burden of responsibility on guardians. They have the right and authority to serve their charges’ needs, not their own. Therefore, prosecutors who present the power of attorney into evidence should actually help the State’s case because victims, in conveying that power, place trust in defendants to act in their best interest. Use of Theft Statutes

In order to apply theft or theft-related statutes to guardianship and power of attorney cases, the prosecution must prove that defendants did not have victims’ consent to use their funds in the manner indicated. One difficulty prosecutors often face is the inability of victims to provide testimony. Victims may be deceased or physically or mentally unable to testify.

In its decision, the court noted that while proving nonconsent to the taking of property is a necessary element in a theft case, this lack of consent may be proven by circumstantial evidence. Further, even when victims apparently agree to allow others to control their finances, that consent is not effective unless, as a factual matter, it is voluntary and intelligent. The court found that the victim was not mentally competent to understand the nature of the joint bank account arrangements she had with the defendant, was not capable of giving valid consent, and therefore, the defendant had gained unauthorized control over the victim’s property.

UNDUE INFLUENCE

Gainer points to another problem that prosecutors face in financial exploitation cases. At times, evidence exists that victims consented to the arrangement; however, they lacked an understanding of the nature of the transaction, the meaning of the expenditures, or other circumstances which, had they known or understood, would have caused them to act differently.

While undue influence has been carefully explored in civil cases relating to financial transactions, it has rarely been applied in the criminal context, especially in theft cases. The closest analogy has been those States that use instances of coercion, undue influence, or victims’ lack of fully understanding transactions as evidence in exploition cases. Under such circumstances, most States require proof of victims’ limited capacity or ability to care for their own needs for them to meet the definition of aged adults. Further, there is often an age requirement, usually 60 or 65 years of age.(10)

OVERCOMING OBSTACLES

Education of incoming and current law enforcement officers must be enhanced. Officers need to realize that not all criminal activity is violent, that not all property is stolen in the night, and that documents need not confuse, but may incriminate and convict guilty exploiters.

The often-used phrase “the graying of America” accurately describes the shifting upward of the age of crime victims and the changing nature of the types of crimes by which they are victimized. Social service agencies, law enforcement agencies, and prosecutors must communicate and work together in order to make progress against this type of criminal activity.

Endnotes

1 Pepper Commission on Aging, Master Plan on Aging for Florida, vol. 1, Part A, September 1990.

2 Ibid.

3 The Florida law previously referenced refers to the misuse of a power of attorney as one means in which the crime of exploitation may be committed. See FLA. STAT. Sec. 415.102(9)(1973).

4 See, e.g., FLA. STAT. Sec. 415.111(5)(1993).

5 State v. Dyer, 607 So.2d 482 (Fla. App. 2 Dist. 1992).

6 FLA. STAT. Sec. 415.102(1993).

7 State v. Cuda, 622 So.2d. 502 (Fla. App. 5 Dist. 1993).

8 FLA. STAT. Sec. 415.102(9)(1993).

9 Gainer v. State, 553 So.2d 673 (ALA.CR.APP.1989).

10 See, e.g., FLA. STAT. Sec. 415.102 (3)(1993).

Bibliography for: “Policing the guardians: combating guardianship and power of attorney fraud”
Mathis E. McRae “Policing the guardians: combating guardianship and power of attorney fraud”. FBI Law Enforcement Bulletin,The. FindArticles.com. 23 Mar, 2010. http://findarticles.com/p/articles/mi_m2194/is_n2_v63/ai_15267880/

Stealing Your Parents Blind 101 Part 2

Couple Accused of Elder Abuse of Mom

By Melinda Rogers

The Salt Lake Tribune

Updated: 09/02/2009 11:42:23 PM MDT

A West Valley City couple are accused of bilking their elderly mother out of more than $100,000 while failing to care for the woman, who developed bedsores and other ailments as a result of the alleged neglect.

Corin Lynn Barker and his wife, Nadine Barker, both 60, were charged Tuesday in 3rd District Court with abusing Beatrice Barker, 90, who died in June.

Corin Barker was granted power of attorney for his aging parents in 2006 and gained control of their bank accounts, which included $40,000 in Social Security checks and other retirement savings, according to charging documents filed Tuesday.

When his father died in 2007, an insurance company paid his mother $62,241 in benefits, which went into a joint account, charges state.

West Valley City police began investigating Barker after receiving a complaint of neglect from staff at Pioneer Valley Hospital. Beatrice Barker was hospitalized in early June after losing weight and having renal failure and pneumonia, charges state.

Police investigating the severe bed sores discovered Nadine Barker was charged with her mother-in-law's care, including purchasing the woman's groceries, giving her medication and taking her to the doctor, charges state. Beatrice Barker required around-the-clock care.

Nadine Barker and her husband allegedly hired their daughter-in-law, Angie Barker, to provide every day care of her grandmother-in-law at one point, charges state. But Nadine was considered to be the main caretaker, police said. Nonetheless, Angie Barker also faces charges.

Police served a search warrant on Beatrice Barker's home at 3376 S. Beehive St. (2970 West), where they found mold growing in the refrigerator with no food available.

The woman's prescription bottles were empty and her bedroom contained a box spring and mattress on the floor, charges state.

Police later determined that Corin Barker had drained his mother's bank accounts, charges state.

The $102,914 of his parent's money that Corin Barker had control over dwindled to $1,829 the day of Beatrice Barker's death on June 14, charges state.

Corin Barker told investigators that he spent $56,482 of the money "for his own benefit" but spent the rest on his parents' care, according to charges.

Announcement ; Power of Attorney Abuse

Two new “channels” on AARP’s website share information and resources on elder abuse and, more specifically, power of attorney abuse. AARP’s TV show, Inside E Street, aired an episode last week called “License to Steal.” You can watch the show and find links to many resources at:

http://www.aarp.org/aarp/broadcast/Inside_E_Street_License_to_Steal/

The show focuses on addressing power of attorney abuse, using the Brooke Astor case as a graphic example and featuring research and law reform efforts. Guests include Lori Stiegel, author of the AARP Public Policy Institute report Power of Attorney Abuse: What States Can Do About It

http://www.aarp.org/research/legal/legalrights/2008_17_poa.html

Linda Whitton, law professor and Reporter for the Uniform Power of Attorney Act; Bob Blancato, Elder Justice Coalition; Congressman Joe Sestak; and Meryl Gordon, author of Mrs. Astor Regrets.

Ken Onaitis, LMSW
Director, Police Relations & Elder Abuse
Carter Burden Center for the Aging
1484 First Ave.
New York, NY 10075
212-879-7400 x116

onaitisk@burdencntr.org

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We had our own experience wih POA's when our mother Clara G Fernandez who suffered from Dementia and Alzheimer's was "questionable removed" from her home and husband of 59 years . A.J. Fernandez , and made to sign a new POA which was used to close her CD's,Stock accounts,Bond accounts,transfer her Real Estate out of her Trust and otherwise raid her Trust.

The matter ws considered a "civilly matter" and authorities refused to take action and save Clara from losing most assets in her Trust, except for her social security income.

When family pointed out to the authorities that her the new POA that she gave at 87 years old
after having the onset of dementia and alzhaimers, the answer from the authorities was that the POA had a newer data and that was all that mattered, regarless of the circumstances under which it was obtained!

Just What Is Elder Abuse?

by Ray FernandezKey West ,Florida .-USA

Healthcare providers underestimate and underreport elder abuse due to decreased recognition of the problem, lack of awareness of reporting requirements, including who to report to, and concerns about physician-patient confidentiality.

The US National Academy of Sciences defines elder abuse as follows:

Intentional actions that cause harm or create a serious risk of harm (whether or not harm is intended), to a vulnerable elder by a caregiver or other person who stands in a trusted relationship to the elder

Failure by a caregiver to satisfy the elder's basic needs or to protect the elder from harm.

Systematically, the terminology used to describe elder abuse is nonconsistent for example in some states leaving an elder sedated alone in a Hotel room who falls and suffers serious injury would constitute elder abuse and neglect under the definitions of Elder Abuse by the US Academy of Sciences

Financial abuse - Misuse of an elderly person's money or assets for personal gain. Acts such as stealing (money, social security checks, possessions) or coercion (changing a will, assuming power of attorney) constitute financial abuse.

Incidents such as these are routinely treated as civil matters and passed over to civil courts where they languish for years depleting any assets the elder might have accumulated for their now not so golden years..

Terms vary among researchers, and usage is not consistent in the laws of different states. Even the age at which a person is considered elderly, usually 60 or 65 years, is debated.

No federal statute is specifically dedicated to preventing the mistreatment of elderly persons similar to those targeted at child abuse and domestic violence. Currently, elder abuse is defined by state laws, but state definitions vary considerably from one jurisdiction to another.

Until we come to terms as to what constitute elder abuse there are bounds to be many more victims that will suffer unnecessarily and will be left with no one to turn to, this is the sad reality of elder abuse laws today which have been described as being 20-25 years behind child protection laws.

Because of the inconsistencies in the working definitions of elder abuse getting accurate information on the incidence of elder abuse and neglect will be very difficult.

Barriers to recognizing and reporting elder abuse also must be addressed as well as the The Role of Courts in Elder Abuse Cases. The lack of uniform definitions has been a major obstacle, the long court battles that await elders reporting elder financial abuse must be addressed, many elders don't have much time or money a victim may not be able to pay for a lawyer's services because the victim's life savings were lost as a result of the exploitation that would be the subject of the lawsuit.

The laws created for elder abuse were based upon child abuse laws; therefore laws are weak on matters such as financial abuse, since children generally have no money to exploit.

The slow pace and customary delays of the legal process are particularly onerous to older persons in general and to those who have been abused in particular.

We need reform and we need it now please let those on a need to know basis know. Thank you.