Philadelphia Abuser shows need for more investigation and recordkeeping

By Attorney David Engler

The Philadelphia Enquirer reported December 9, 2011 on one of the nation’s most horrific example of abusing a ward or in Linda Weston’s case a “payee”. Weston is accused of imprisoning intellectually challenged adults in a Tacony cellar and stealing their federal benefits. Weston was the official recipient of Social Security benefits for 10 men and women from 1995 to 2011, according to a source familiar with the ongoing investigation.

“She had applied to be the “representative payee” for an 11th beneficiary, her biological daughter, the source said.

In an ongoing investigation, the Social Security Administration has found that Weston was getting the checks for four relatives, including children; five individuals who were not related; and one person who had the same last name but whose relationship to Weston has not been firmly established.

As of October, Weston was terminated as the payee for seven of the beneficiaries, the source said.

Of those beneficiaries, three were with Weston at the time of her arrest; two are dead; one no longer needed a representative payee; and one was switched to a more suitable payee.

Payments for the three others were suspended, pending the results of an investigation by the administration’s Office of Inspector General, the source said.

Police continue to probe the 2005 death of Donna Spadea, 59, while in Weston’s care in Philadelphia.

Another person who died under Weston’s care was Maxine Lee, 39, of Philadelphia. In November 2008, she was found dead in a house that Weston was renting in Norfolk, Va. Norfolk police said Lee died of natural causes. A medical examiner attributed Lee’s death to meningitis, with severe malnutrition as a contributing factor.

Weston had served less than four years in prison for a 1984 conviction for starving to death a man, 25, she kept trapped in her Philadelphia apartment. She was arrested in October with her daughter and husband after the landlord of a Tacony apartment house found four intellectually handicapped people locked in the building’s cellar.

A sweep of the apartment where Weston was staying turned up identification records for as many as 50 people, including power-of-attorney paperwork, forms of identification, and Social Security numbers. Police said it suggested a vast fraud operation.

People who are convicted of crimes are banned by law from accepting government checks on behalf of others, but it is a self-reporting system.

The social security administration is very lax on who is appointed as a representative payee and should be encouraging more professional organizations or registered guardians to act as payees. Each year billions are stolen in benefits from the poor by those who are claiming to help.

The answer is not only better background checks but accurate record keeping that can be reviewed by other family members, a court or agency at any time. Our company, eGuardianship.com www.eGuardianship.com has pioneered the nation’s first online real-time reporting system for wards. Such systems ensure proper recordkeeping and help to minimize if not eliminate fraud.

U.S. Sen. Bob Casey (D., Pa.) is proposing a bill that would give the Social Security Administration access to FBI databases in order for caseworkers to conduct criminal background checks. It’s a start.

Attorney David Engler
Phone: 330-729-9777
http://www.DavidEngler.com Attorney Engler’s website
Areas of Practice: Family Law, Elder Law, Domestic Relations, Bankruptcy, Criminal

80 Year Old Gets Probation Over Punching Obsessive Putter

By Attorney David Engler

In Florida if you punch a guy over 65 in the nose it is a felony. No matter what.

A Sheet and Tube Mill retired mid-level executive and his retired school teacher wife moved to a Condo golf course townhouse near Naples. A boy who had grown-up in Brier Hill during the forties, went to Korea, worked at a mill in purchasing, was now taking it easy. He would visit the grandchildren every winter holiday back in Youngstown, Ohio, play golf and sometimes drive over to see the dogs race. Brier Hill was a melting pot of immigrants and their children. Everybody had a church…Poles, Italians and the Irish like him. Mac learned to play golf at the nine-hole-public course, up Fifth Avenue, closer to where the wealthier people lived. You could not spend more than $20 for a season. The beer gardens were nearby for after a round, where everyone knew who was a golfer or a sandbagger.

Down South, where he and Lorraine now lived, just outside his very modest townhouse; the sliding glass patio door was just 10 feet away from the practice putting green. Every day another retiree from New Jersey who had worked in retail clothing and lived at an even more modest condo further away from the Ocean, practiced his putting and very little chipping. The 30 by 30 green was close to one of those many man-made drainage ponds that courses gussy-up and call a lake. Herb, the guy from Jersey, apparently suffered from a BiPolar Disorder and retired early and moved to Florida. He was 69. His wife was happy anytime Herb was out of the house. So Herb joined the closest golf course at River Wind and obsessed over putting. He was on the practice green for more than three hours a day, 10 feet from Mac. Mac was getting older by the day and had always been an unreasonable man. And it is suggested by research, that early onset dementia can start to turn a cranky person, even crankier.

Day after day Mac either sat in his condo looking out the screen door, past the small concrete slab of a porch, at Herb, the skinny guy from New Jersey putting hour after hour. Or if it wasn’t too hot, Mac would sit on his porch and look at him. Mac believed that a man ought to be able to sit on his back porch drink Buds, eat grapes and spit seeds and not have to look at Herb. So after Year 3, Month 4 of the incessant putting, Mac starts with the comments. Mac had no idea of Herb’s ethnic background, place in life or mental history. He decided to call him everything and anything for days under his breath, but loud enough for a 69-year-old guy to hear. The day In August was hotter and stickier than most Florida days; and the war began. Herb mouthed something back and Mac arose from his canvas-back camp chair, strode 7 f feet and landed a blow to Herb’s nose. Down goes Herb. One of the dozens of other old people simply looking out their screen doors for amusement and a chance to spot the book club girls making the turn at 10, called the Police.

Herb was okay. But since he was a senior (someone over 65 in Florida) it was more than a misdemeanor assault; it was a felony. Herb could care less than he got decked by a guy 11 years older than him with two replacement knees. No, Mac had to be stopped. A couple of the condo ladies agreed and let the Judge know it. Mac was too proud to hire an attorney. The Judge would have to be a fool to see that a man should not have to look at the same lame golfer taking thousands of putts all within the reach of a grape seed spit. Maybe one of the condo commandos had some clout because the Man in the robe came down heavy on Mac. He was given a death sentence. Five Years reporting probation and HE WAS NOT ALLOWED TO GOLF! The $500 dollar fine and court cost was nothing All those years paying a silly HOA fee and paying off the mortgage so he would never had to see another house payment in his life; and “this is what he gets?”

If he wants to go back North, he needs the permission of his probation officer. He stills sits on the porch and reruns the injustice in his mind. None of his kids bring it up at family celebrations, because they know Dad won’t stop talking about it. Herb no longer plays golf at River Wind anymore. In fact someone thought he had died. Two more years of probation and maybe he’ll play again. Or maybe he won’t since that would be a good way to show the traitors that turned him in that he could hold a grudge.

There is no real moral other than 1) get an attorney, 2) older people can get cranky and could use the help of a therapists 3) the law shouldn’t apply if you are an older person hitting a younger person and 4) do not in any manner, piss off a guy from Brier Hill!

As with all of our stories, the people and stories are real, but the names have been changed. In every case we have received the permission of our client to tell the story.

Attorney David Engler
Phone: 330-729-9777
http://www.DavidEngler.com Attorney Engler’s website
Areas of Practice: Family Law, Elder Law, Domestic Relations, Bankruptcy, Criminal

Standing in the Nursing Home Doorway: Do you sign?

By Attorney David Engler

You are at the nursing home. It was a terrible decision you had been forced to make because your Mom had told you years before that she never wanted to go to a nursing home. She said she would rather die.

As if that weren’t bad enough, the nursing home now is asking you to sign something as you and your mother are standing in the doorway!

If you are standing in the doorway and you are asked to sign a contract, understand your rights.

Your Rights
Under federal law, no one is liable for the cost of care in a nursing home except the resident, no matter if the relative signs the contract or puts a Power of Attorney (POA) next to the name.

The nursing home cannot ask for a deposit upfront as a requirement for admittance. They cannot ask for a ‘gift’, to expedite admittance.

The nursing home cannot deny admission just because the resident is going to pay with Medicaid benefits.

The nursing home cannot require that the resident be on private pay for so many months before Medicaid is applied for.

The nursing home may not charge a resident for failure to notify them in advance that he or she is going to leave.

The bottom line is to know what you are doing at this very stressful time.

I would suggest not signing any contract.

The only recourse a nursing home would have against a relative is if they believe and could prove that the relative depleted assets belonging to the resident that could have been used to pay for care.

If you have a question email me at davidengler@eguardianship.com or call my office at 330.729.9777.

Attorney David Engler
Phone: 330-729-9777
http://www.DavidEngler.com Attorney Engler’s website
Areas of Practice: Family Law, Elder Law, Domestic Relations, Bankruptcy, Criminal

The Power of Attorney Abused

By Attorney David Engler

Aside from flat-out driving an incompetent victim to their bank and taking their money, the first choice of the thief is the power of attorney.

A Power of attorneys is recognized in every state and there is little to no regulation of its use. In most states the only time it is recorded is when real estate is being transferred. There should be extreme caution given by any professional who drafts a power of attorney. Care should be taken to truly understand not only if the signer is competent, but is the person being coerced even if subtly.

As a lawyer I have seen power of attorneys given to care givers who might have come into the elderly person’s life because they were hired. The constant contact with the person presents an opportunity for the caretaker to overstep their role. This is yet another good reason why family members should choose a person who is a registered guardian. It is a far better course of action to choose a stranger who is trained and bonded than checking the inventory at death to find out all the assets were depleted.

The power of attorney most often survives incompetency if it was drafted within the last 20 years. It is true that there is plenty of case-law indicating that a person cannot use a power of attorney for their own benefit, but self-dealing is usually not detected or discovered too late. By then assets are gone and usually unrecoverable.

As part of planning for the care of your mother or father or other person who seems unable to handle their own finances because of mental or physical reasons, a good start is to ask if there are any power of attorneys out there and better yet send a notice of revocation to all the banks with which the person might be doing business.

Attorney David Engler
Phone: 330-729-9777
http://www.DavidEngler.com Attorney Engler’s website
Areas of Practice: Family Law, Elder Law, Domestic Relations, Bankruptcy, Criminal

Keeping Track of Your On-Site Visits

By Attorney David Engler

One of the most important jobs of a guardian is to keep track of the times you visited your ward at a nursing or group home. Just last night I was visiting my own mother at a rehabilitation facility. Now while she seems to be completely competent at age 82, I can see the difference in treatment because the staff knows I am a lawyer and involved in the guardianship business. Most importantly I am keeping track of what I am seeing and letting them know that I am. My mom has complained about not getting her medications at the right times and about rude treatment by an aide. Her roommate confirmed the complaints.

It is remarkable how some staff that work at nursing homes do not seem to like their jobs and treat all patients like unruly children.

Well, they should be listing the complaints they receive directly from the patients on their charts. They do not! It is information that might show a pattern of neglect and therefore better not to list. But the fear of litigation is a powerful deterrent and if you demand that your complaints on behalf of your ward be documented and that you are recording the same, your client will get better care.

My Mom hit the nurse’s button and was not supposed to use the rest room without assistance. The response took more than 20 minutes. Now she is on a diuretic and it is hard to wait. The aide finally showed up and said, well just do it in your bed. You have to be kidding! She wasn’t! Believe me, these understaffed and under trained statements are coming out every day to our wards who find themselves relying on the care of others. Let the facility know up front that you will document the issue in your own case notes.

Our software (www.eguardianship.com) allows the guardian to keep track of case notes and these notes are searchable. Contemporaneous notes are admissible as business records if litigation is needed in the future. We have to put the pressure on the residential care-givers to keep them honest and accountable.

Vary the times you come to visit so your schedule is not predictable. If they know you show only at 4 P.M. then maybe they will not bathe your ward until that time. Do not be shy about letting the residential care facility know that your job is as an advocate on behalf of your ward. Let them know that you keep electronic records even if they do not.

Attorney David Engler
Phone: 330-729-9777
http://www.DavidEngler.com Attorney Engler’s website
Areas of Practice: Family Law, Elder Law, Domestic Relations, Bankruptcy, Criminal

Gifting and Medicaid Eligibility

By Attorney David L. Engler

Many of the elderly and their children/heirs often find themselves wondering how to handle assets in anticipation of going on Medicaid. They have heard that the federal government has rules as to what can and cannot be done with assets. If you are within 5 years of going on Medicaid or are already in Medicaid then this article is for you.

If you find yourself in the situation where you will clearly be within Medicaid’s 5 year look back period, then gifting can help shield some resources under the right conditions.

A person is not allowed to give a gift simply to become eligible for Medicaid. That is why the federal government “looks back” 5 years when the person is applying for Medicaid benefits.

All gifts that were made within this look back period impose a penalty towards the person’s Medicaid eligibility, calculated as the gift’s value as a percentage of the monthly cost of care. This penalty is imposed by way of delaying the individuals final eligibility for Medicaid. In most cases, only gifts with a value greater than $1000 need to be reported, but technically all gifts count. Gifting to family members does not count towards this penalty as long as they are not leaving themselves destitute.

In the case where a non-family member receives a financial gift, the value of that gift will have to be paid down before they are eligible to receive benefits. So, if a gift of $40,000 is made to a non-family member, it is likely this would delay entry into Medicaid as much as 10 months ($40,000 divided by the amount of expected benefit, say $4,000 per month) The entire value of that gift is counted towards this penalty. If the gift is below the reporting threshold, $1000, then it does not count. In the end, a person receiving Medicaid cannot have more than $2000 in liquid assets.

So if there is money transferred before the person applies for Medicaid eligibility and gifts are made to the children and grandchildren by the proposed recipient themselves or by someone who has a power of attorney with defined ability to give a gift, it might not be counted as a resource for determining eligibility. Courts have held that they will not presume that a person was going to single mindedly conserve their resources to pay for long-term care. If the gift is above $1000 to the family member then the issue becomes did the donor leave enough money for themselves to reasonably take care of their future needs.

For example, if a person has liquid assets of $150,000 and believes they should provide for long-term care for themselves of 12 months, this can be deemed to be reasonable.

Medicaid eligibility defers from State to State so it is best to consult an elder law attorney who is familiar with your jurisdiction. We give this a thorough look when our clients call with such situations. That attorney might even have firsthand knowledge of the caseworker’s likes and dislikes which can be a tremendous asset.

Attorney David Engler
Phone: 330-729-9777
http://www.DavidEngler.com Attorney Engler’s website
Areas of Practice: Family Law, Elder Law, Domestic Relations, Bankruptcy, Criminal

Divorce and Dementia

Having practiced law in the area of Domestic Relations I can attest that the divorce rate among the elderly is increasing. Divorce lawyers are seeing couples divorce after 30 years of marriage. In the past year I have seen divorce after 48 years and one after 39. In each instance the attorney and the family and possibly the guardian need to be aware of the effects of early dementia or early onset Alzheimer’s as causes for the break-up. It is popular for comedians to blame Viagra and it has come into play but most often it is the change in personalities that comes with the aging process that leads life partners to become unstable.

I actually filed a guardianship action that was thwarted by the wife when she hired an attorney who complained for divorce. The divorce action trumped the guardianship sought by the husband and the very adult children each took sides. The reality was a bitter fight disposing of a lifetime of assets.  Throughout the process the mental illness of the wife was present but divorce courts are reluctant to pursue a request for a competency exam. The facts must be extreme to derail a divorce by raising mental illness because of a stroke or dementia.

Attorney David Engler
Phone: 330-729-9777
http://www.DavidEngler.com Attorney Engler’s website
Areas of Practice: Family Law, Elder Law, Domestic Relations, Bankruptcy, Criminal

Our Wards and Divorce

Another aspect of divorce for the guardian is that now guardians will see more and more of their wards come from a divorced background. Divorced rates plateaued in the 1980’s and now linger just below 50 % but the entire social network is disrupted by a divorce that might have occurred 20 or 30 years earlier. Studies have shown that the relationship between children and their parents are affected by divorce. It is particularly true for fathers and their children. So once where co-residence or in-kind services from a child to an elderly, in need parent, might be the norm; in families of divorce the relationships that were frayed decades ago have a real-time impact for the guardian today. It is one of the reasons guardians will note that the care of the elderly often falls into the care of strangers because the relationships that were relied upon in the past may have been fractured by divorce.
It is important to understand the effect upon the family from a divorce, that may have happened years earlier, in understanding why the person needs help now. And when confonted by a potential divorce in the present it is important that the professional understand that the dynamics leading to the dispute may have more to do with health.