Tag Archives: guardianship

Attorney admits theft from elderly client

23 Jul

By Teri Figueroa 3:30 p.m.May 21, 2013

VISTA — An Escondido attorney faces jail time after she pleaded guilty to stealing inheritance money from an 80-year-old client.

Sydney Claire Kirkland, 57, pleaded guilty Monday to three felony charges — embezzlement, grand theft and financial abuse of an elder — on the day her trial was to start, Deputy District Attorney Sherry Thompson said.

Over the course of 11 months, Kirkland siphoned $275,000 from a trust fund set up for the victim, taking all but about $10,000, according to the State Bar of California.

Authorities said she tried to cover up the theft by creating fake records.

Kirkland faces a sentence of up to six years when she is sentenced Aug. 27, Thompson said.

Kirkland agreed to be disbarred and became ineligible to practice law on Jan. 19.

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Mentally ill woman seeks lawyer to sue banks over her trust fund

24 Jun

Problem Solver
Published: 14 October 2011 12:02 AM
Updated: 14 October 2011 12:02 AM

Nineteen months after a judge ruled that Michelle Cohen should be allowed to handle her own affairs, the mentally ill woman is living out of her van. She is still searching for an attorney willing to help her sue the banks that handled her trust fund, once worth half a million dollars.

She’s spent years trying to get lawyers to listen and to help her. When she had money, a few signed on to represent her in her attempts to get her trust money released and to help her fight against efforts to place her under state guardianship.

But now she’s destitute. She spends hours each week calling lawyer offices, hoping to find someone to represent her against the banks that oversaw the trust fund left to her by her grandmother.

“I’ve probably made thousands of calls,” Cohen, 42, said. “And I’ll make as many as it takes until I find someone to help me. I think it’s despicable about what they’ve done to me. They’ve run me into poverty.”

Cohen once had a good deal of money. Her paternal grandmother left her the Henrietta Neufeld Cohen Trust, which at one point was worth about $500,000. The trust was first managed by Wachovia, which was purchased in late 2008 by Wells Fargo. In January 2009, the Flower Mound branch of American National Bank took over managing the account, which had about $135,000 left at that point.

Cohen had difficult relationships with the trust managers at the banks. She believed that the money belonged to her and that she should be allowed to control the account. She bought a van, a home in Wisconsin and a motorcycle for a friend. She purchased DVDs and spent freely on extended-stay hotels and restaurant meals. She spent tens of thousands of dollars on lawyers to try to break the trust.

She owed $100,000 and had about $50,000 left when American National Bank filed for a limited permanent guardianship of her and the estate in June 2009.

Cohen suffers from schizo-affective disorder, described as an illness that affects emotion and behavior. Her situation exemplifies the tug of war that exists between letting people with mental illness live independent lives, but also trying to protect them. Problem Solver has followed her situation since she contacted The Dallas Morning News before her guardianship trial.

“Nothing good will happen if I have a guardian,” she said. “I’ll probably wind up in a group home. I have a lot to fear about that.”

Under guardianship, a state judge would appoint someone to make decisions regarding the person’s property, medical care, living arrangements and potentially all personal and financial decisions.

“It provides necessary decision-makers for people with diminished capacity and protects them from abuse. Yet it also removes fundamental rights and may increase opportunities for abuse of the very people we strive to protect,” Naomi Karp, senior strategic policy adviser of AARP, explained before Congress in September.

American National never stated why it sought guardianship for Cohen, referring questions to attorney Carol Dabner of Underwood, Perkins & Ralston. Dabner has never commented outside of the courtroom and told The News this week that she had no information to share.

Denton County Probate Judge Don Windle dismissed the case in January 2010, saying there was little point in ordering restrictions when there was little money left to restrict. He said he would leave it to Cohen to pursue attorneys to investigate whether any of the prior trustees breached their fiduciary duty during their oversight of the trust.

The remaining money in the trust fund was drained by attorney fees because lawyers on both sides of the case were legally able to bill the trust fund.

“They spent everything I had in trying to get me found incompetent,” Cohen said.

After the trial, Cohen moved back to Wisconsin with her beloved cat, Blossom, leaving her belongings in storage in Texas. With nowhere else to go, she moved back into her home in Milwaukee, which was in foreclosure. She stayed there until the end of September 2010, when it was sold and she was forced to leave.

“I am just so scared of what to do about me and my situation. I just don’t know what to do or who to turn to,” she wrote in an email. “I feel horrible, helpless and hopeless. I feel I do have to be grateful for government services, and I need to be grateful I don’t have to have a social worker or caseworker. Social workers terrify me.”

When she was kicked out, she returned to Texas, hoping to find somewhere to live. Problem Solver arranged for space at a shelter and a foster home for Blossom, but Cohen resisted that scenario.
“I have nowhere to go, but I can’t stay there,” she said. “This lifestyle is so unfair, unknown, unfamiliar and ghastly to me and my cat.”

Instead, she parked her van on the lot of a Rockwall restaurant. She stayed at the spot for about two weeks until police told her she would have to move on. An officer called the newspaper to relay her message that she would head to her estranged mother in Alabama.

By Christmas last year, she was settled into a trailer on her mother’s land. She spent several months there, content until Blossom died of kidney failure complications at age 14 in March. Lonely and depressed, Cohen started fighting again with her mother. The urge to flee, prevalent always with her mental illness, finally took over.

She headed to North Texas to find an attorney to take on her cause. Experts say she’s going to have difficulty with that. Her probate issues are difficult, she’s mentally ill and she’s broke. In addition, the statute of limitations for most trust cases is four to six years.

Cohen already knows how hard it is to find someone, but she’s not ready to quit and go back to Alabama. She’s told her story hundreds of times, and she still continues her quest. Living in her van, which is parked in a retail store lot in Plano, she’s been refused several times already this week.
“I will keep searching. I will take on the world, because I am not afraid,” she said.

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Daniel Gross v. Probate: The fight continues.

24 Jun

From the grave, Daniel Gross is still shaking up Connecticut’s probate court system.

Gross, readers of my newspaper columns will recall, was the elderly Long Island man imprisoned in a Waterbury nursing home by a probate court judge for 10 months beginning in 2005, after falling ill while visiting his daughter. 

grossAfter an outraged superior court judge freed Gross in 2006, he eventually returned to his New York home. He died in November of 2008, free.

The Gross case eventually led to changes that spurred the legislature’s decision this year to radically downsize the courts from 117 to 54. Significantly, judges in the future will have to be lawyers who will have to undergo more training and work longer and more regular hours.

Now, a federal appeals court has taken up one of the remaining probate court outrages – conservators who overstep their authority and whether they are immune from lawsuits.

It’s about time.

In Gross’s case, a court-appointed conservator – who was supposed to be looking after his best interests – forcibly kept the elderly man in a nursing home. A court-appointed lawyer disregarded Gross’s wishes to return home to Long Island.

Gross has been dead for two years, but a long-simmering lawsuit by his daughter has resulted in what could be a significant decision by the U.S. Court of Appeals, Second Circuit.

Judges, for obvious reasons, cannot be sued for decisions they make. The Second Circuit, in a ruling released last week, has directed the state Supreme Court to decide whether probate court appointed lawyers and conservators are immune from lawsuits, a question that is “unsettled” under state law.

The Second Circuit judges have asked Connecticut’s top court to “explain the role and function” of both court appointed lawyers and conservators.

Probate judges tell me that these court-appointed “agents” must be immune from lawsuits or else they will never be able to find lawyers willing to take these jobs. I can understand that.

But I also remember a heartbroken old man who wanted to go home but was unable to leave a nursing home because a couple of lawyers thought they knew better.

There are still significant shortcomings in our probate system. Judges, for example, should not be allowed to maintain a private law practice where they interact with the same lawyers who appear before them.

But now there’s a chance for the state Supreme Court to further bring probate into the modern era. They should act before we see another Daniel Gross.

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Guardian fees scrutinized

11 Jun

Va. has no cap on what these court-appointed conservators can charge

Posted: Thursday, December 6, 2012 11:45 pm

Guardian fees scrutinized BY JUSTIN JOUVENAL The Washington Post Richmond Times-Dispatch

WASHINGTON — Samuel Drakulich earned a Bronze Star for drawing enemy fire away from a wounded soldier during World War II. He parachuted behind German lines to organize the resistance and went on to serve in the CIA.

But by his mid-80s, a stroke put the war hero in a wheelchair. Jeanne, his wife, had dementia. Their McLean home was in disarray and bills went unpaid.

A dispute between the couple’s children led the courts to decide that the Drakuliches needed a third-party caretaker. A judge appointed a law firm, which is common in Virginia when the elderly and incapacitated have no one else.

Now the Drakuliches and the law firm are fighting over tens of thousands of dollars in billings in a conflict that likely will be decided by the state Supreme Court.

It has raised questions among elder-care advocates and legislators about how a small number of paid guardians — lawyers and non-lawyer professionals — are treating the aged and how states oversee the process.

The questions come just as a host of baby-boomer retirees are expected to make such arrangements more common. Between 2009 and 2025, the U.S. Census Bureau estimates, the elderly population will increase by 60 percent to 64 million.

“We need to look at ways to strengthen the oversight system for guardians,” said Sen. Amy Klobuchar, D-Minn. “While most court-appointed guardians are undoubtedly professional, caring and law-abiding, we have seen mounting evidence that some guardians use their position of power for their own gain.”

In the McLean case, Needham, Mitnick and Pollack (NMP) took control of the Drakuliches’ lives and $700,000 nest egg, as it had done in six similar cases in Fairfax County. It charged wards up to $125 an hour — its normal professional rates — for personal services, such as renewing dog licenses, sorting boxes and preparing instructions on emptying a dryer’s lint trap, court records show.

NMP billed the Drakuliches $6,300 to prepare $1,800 worth of household items for auction, another ward $2,300 to sell a $4,000 car and a third person in their care $4,200 to recover $5,300 worth of investments, a court investigator found.

The Drakulich family calls the bills exorbitant; NMP says they are normal legal bills. The firm says it and other firms can’t afford to become guardians unless they are allowed to charge their regular rates.

Virginia has no cap on fees attorneys can charge for guardianship work or even basic guidelines about how much they should be compensated. Unlike cosmetologists or dental assistants, professional guardians do not have to meet training requirements or be certified in the state.

There is no single system available to the public to track court judgments and complaints against such guardians. And once an attorney is appointed in private cases, such as the Drakuliches’, the state does not make in-person welfare checks on the ward unless a complaint is lodged — unlike in a handful of other states.

Government investigators, academics and advocates for the elderly have recommended that states make reforms in all of these areas, but Virginia is hardly alone in not implementing them. A series of reports found that states have made progress in increasing rules and oversight of guardians, but most have major holes as they face a demographic wave Klobuchar calls the “silver tsunami.”

Experts say even the most basic information is lacking: There are no hard numbers on how many elderly people are being cared for by guardians, although one estimate puts the figure at 1.5 million nationally — roughly the same number that are in nursing homes. Moreover, no one has a clear sense of how widespread abuse is.

“The states aren’t keeping track, and the feds aren’t keeping track,” said Elaine Renoire, president of the National Association to Stop Guardianship Abuse. “We don’t know how much money is slipping through our hands.”

When one of the Drakuliches’ daughters questioned NMP’s fees, the firm charged her parents $975 for its response, records show. Family members say such billings left them afraid to confront the firm for fear it would be their loved ones who would pay.

And when the county’s watchdog told NMP to refund about $229,000 in billings in seven cases last year, the law firm challenged the order in a precedent-setting case that could land before Virginia’s Supreme Court. The firm also made what family members considered a galling demand: NMP wanted the seven wards it was accused of overbilling to pick up its $165,000 legal tab.

“My parents were people who worked and sacrificed to get where they were,” said Diane Drakulich-Clarke, one of the Drakuliches’ daughters. “NMP ran through their money like wildfire.”

There are more than 8,400 guardianship cases in Virginia, according to the state Department of Social Services, but it’s unclear how many involve the elderly and incapacitated under the care of court-appointed attorneys.

Each Virginia county has a fiduciary watchdog, known as a commissioner of accounts, who approves or denies billings submitted by conservators. Guardians must submit annual reports on the welfare of their wards to the Department of Social Services.

Virginia has a schedule of fees for how much conservators should charge, but the law says only that guardians are entitled to “reasonable” compensation — a fuzzy term that some say leaves wards vulnerable to overbilling.

Diane Drakulich-Clarke says the ongoing battle with NMP has been a five-year nightmare as family members have sought to recover the savings that were supposed to carry loved ones through their twilight years and serve as an inheritance.

NMP says it made every effort to keep fees low in each of the disputed cases.

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San Jose disabled man’s fight to save estate spurs bill to protect incapacitated adults’ savings

28 May

By Karen de Sá


Posted: 04/23/2013 09:23:47 AM PDT

April 23, 2013 5:17 PM GMTUpdated: 04/23/2013 10:17:35 AM PDT

Inspired by a disabled San Jose man’s crusade to save his trust fund, a bill getting its first hearing in Sacramento on Tuesday offers strong new protections for incapacitated adults from lawyers who siphon off their savings with huge legal bills.

Senate Bill 156, authored by Jim Beall, D-San Jose, addresses one of the central perversities in the years-long fight mounted by Danny Reed: When Reed challenged the excessive fees being levied to manage his money, he was responsible both for his bills and the legal bills of those he believed were cheating him — even if he won his case.

Beall’s legislation essentially reverses that burden by creating a “loser pays” system. In a case alleging excessive fees, a disabled


Accident victim Danny Reed at a 2012 hearing of his case in Santa Clara County Superior Court. (Karen T. Borchers)

adult who lost would pay his conservator’s legal costs, but the conservator could eat those costs if the fees were judged excessive.

Reed’s lengthy journey through the Santa Clara County court system — highlighted by this newspaper’s investigation “Loss of Trust” — revealed the little-known “fees on fees” provision in state law that makes it extremely risky for elderly and disabled adults to challenge how much they are charged by court-appointed professionals.

Reed, 38, nearly lost much of his life savings beginning in 2010, after the Superior Court appointed him a temporary trustee.

“Danny Reed affected me greatly, and I think Danny Reed is exactly the type of person that generally we as a society should protect,” Beall said. “My bill will empower the Danny Reeds.”

‘Some abuses’

Beall said he believes there are more instances of “massively inappropriate levels of fees,” other than those described in this newspaper’s 2012 series. SB 156, he added, will act as a deterrent for “unscrupulous fiduciaries and attorneys” who pad their bills and then charge to fight over them. “There have been some abuses,” Beall said, “and we need to have legislation to protect people.”

Senators debating the bill Tuesday afternoon in the Senate Judiciary Committee are expected to encounter strong push-back to that assertion. The bill is likely to be opposed by lawyers and private conservators, who say they need protection from unwarranted challenges of their fees for service, which can be costly because the work is complex and time-consuming. For now, Beall’s bill would apply to the largest group of people who face such conflicts — those with private conservators; Reed’s conflict was with a court-appointed trustee.

“Rather than accomplish the desired reduction in litigation, the new provisions would encourage frivolous lawsuits from all interested parties pertaining to conservatorships,” Jerry Desmond Jr., a lobbyist for the Professional Fiduciary Association of California, wrote to Beall’s office, objecting to the bill.

An analysis written for the Senate committee reflects similar concerns and forecasts a “chilling effect” on conservators’ willingness to serve. It notes that if a judge denied even $1 in fees, the conservator could be on the hook for legal costs.

In Reed’s case, after trustee Thomas Thorpe submitted for a judge’s approval a $108,771 bill for less than five months work, the San Jose man challenged those fees and his costs spiraled even more. The fight over the original set of fees led to $261,878 in additional charges from Thorpe and his attorneys to defend the original bill — an amount totaling more than half of Reed’s life savings. The state appeals court has ultimately rejected much of Thorpe’s billing, after it came under intense scrutiny.

SB 156 is described in the committee analysis as aiming to close a gap in state law that “has placed California’s elderly and disabled adults in the untenable position of choosing to accept the overcharges solely because it will cost more to challenge them in court, win or lose.”

The bill “provides more equality,” said Deputy Public Defender George Abel, who represents incapacitated adults in Santa Clara County probate court. “They don’t have to be in that damned-if-you do, damned-if-you-don’t situation.”

Additional bill

For their part, the group representing conservators has used Reed’s case to highlight the case for another bill.

Assembly Bill 1339 would require early notice of estimated fees and periodic monthly payments.

Norine Boehmer, president of the professional fiduciaries trade group, which is sponsoring the legislation, said her take-away from the Reed case is that people in probate court need to be protected from “sticker shock” when the bill lands after a year or more.

Under AB 1339, she said, “Mr. Reed would have had an estimate and some idea of how much it was going to cost. He’d have some assurance that if really unusual things happened — and in his case, really unusual things did happen — he’d know that it would be approximately this much money.”

Contact Karen de Sá at 408-920-5781.

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Steve Duin: Ben Alfano is still footing the bill

20 May

duinBy Steve Duin, The Oregonian

The Oregonian on November 19, 2012 at 4:45 PM, updated November 19, 2012 at 5:24 PM


Benjamin Alfano was happy at Raleigh Hills Assisted Living,

where he was visited by his granddaughter, Emily Lupton,

13, in winter 2010. He died in February 2011.

Courtesy of Alfano family

While Ben Alfano will be much with his children this week, if only in memory, Thanksgiving eve would seem a callous time to render “final” judgment on the draining of the veteran’s estate.

But as Washington County Circuit Judge Rita Batz Cobb has scheduled the hearing for 11 a.m. Wednesday, let’s review the charade that has brought us this far.

Twenty-seven months ago, Cobb dismissed the pleas of Alfano, his four doctors, four of his five children and Cobb’s own court visitor, and awarded control of the veteran’s life to Chris Farley, a professional guardian.

Farley — like Alfano’s court-appointed attorney, Richard Pagnano — was enlisted by the Oregon Department of Veteran Affairs, the conservator of Alfano’s sizable estate.

Alfano, a 72-year-old amputee with full benefits, would survive only another six months.

As I wrote in a series of February columns, Farley moved the veteran out of the Raleigh Hills Assisted Living facility he loved and eventually into a locked-door dementia-care unit in Gresham, and strenuously isolated him from his children.

Alfano’s heart burst, literally, in February 2011, and he died at the VA Medical Center.

As Judy Bridges, the Raleigh Hills administrator, submitted in an affidavit, “I believe with all my heart that the move killed him.”

Alfano’s death devastated his five children, four of whom retained Portland attorney Michelle Burrows to initiate a federal civil-rights suit against Farley, Pagnano and individuals at ODVA.

How the Oregon Department of Veterans Affairs and its muscle at the Department of Justice are dealing with that threat may be the most insidious aspect of the dissolution of Alfano’s estate.

Of the $407,000 parked in the account when Farley was appointed guardian in 2010, only $220,000 remains.

And that includes another $44,000 that Alfano received in pension and Social Security before he died.

Where did all the money go?

As I reported in February, ODVA “disbursed” $26,784 to Farley and another $27,643 to her attorney, Sibylle Baer.

Pagnano received $19,022.

D. Kevin Carlson, the assistant attorney general at ODVA’s beck and call, billed the estate $25,143. J. Kevin Shuba — the lawyer representing Alfano’s four children — received $41,560.

But none of those payouts are as galling as Carlson’s suggestion, on behalf of Attorney General Ellen Rosenblum, that Cobb must hold another $120,000 of the estate in reserve to defend ODVA and Farley against a potential federal suit.

Think about that.

Four of Ben Alfano’s children — Mary, Steven, David and Lisa –believe the conservator and guardian made decisions that contributed to their father’s “wrongful and untimely death.”

And Carlson wants to pit what’s left of their father’s estate against them.

None of those children plans to be in Cobb’s courtroom Wednesday. “She has never listened to anything we’ve said,” Steven Alfano notes. “And we’re beaten down. Dad is dead. We lost him. And the health toll this has taken on Mary and me, especially, has been huge.”

They have, however, filed an objection.

Further degrading the estate, they argue, “would be both an injustice and simply ethically wrong in any code of conduct.”

And it is no consolation that their father isn’t alive to see it.

Steve Duin

Link to article:


Justice and the Oregon attorney general’s race between Dwight Holton and Ellen Rosenblum

19 May

duinBy Steve Duin, The Oregonian

The Oregonianon April 28, 2012 at 10:00 AM

Most of us, I believe, confront the ballot with prism in hand, the imperfect lens through which we measure the quality of the candidates and the relevance of the election.

In the Oregon attorney general’s race between Ellen Rosenblum and Dwight Holton, your prism may be marijuana, prosecutorial passion or John Kroger.

My prism is Ben Alfano.

In the last two months of the veteran’s life, which I chronicled in February, Alfano was wrenched from the assisted-living facility he loved and dumped in a Gresham dementia-care unit. Alfano died there on Feb. 26, 2011, an especially bitter turn for four of his children, who had complained about conservator and guardianship issues for years.

Those objections were typically met with smug disdain, or worse, by the Oregon Department of Veterans’ Affairs, and its well-paid bodyguard at the Department of Justice. When Alfano’s two sons sought a change in conservators, ODVA Director Jim Willis wrote a letter to Sen. Patty Murray, D-Wash., saying Steven Alfano had no legal status in his father’s case, when he, in fact, had Ben’s legal medical power of attorney, and accusing him of a “financial conflict of interest.”

When Alfano’s children sought help from state Rep. Mike Schaufler, D-Happy Valley, Kathy Andreas — ODVA’s conservatorship manager — responded to Steven Alfano’s meticulous detailing of the family’s problems with the agency as follows:

“It obviously took Steven many hours to organize and document his findings. That could explain why he has been spending less time lately with his father.”

There’s more where that came from, believe me.

When the four children looked to the state for help, they discovered that D. Kevin Carlson, one of Kroger’s senior assistants, was not only defending ODVA but billing Ben Alfano’s estate for his legal muscle and expertise.

Over the last two years, Carlson billed the estate more than $45,000. He also recommended in March that a Washington County judge reserve “at least $150,000” of what remains in the veteran’s estate to deal with the children’s federal civil rights’ claims against ODVA and the guardian, Chris Farley.

We have, then, another glaring example of the AG’s office defending state agencies to the extreme even when they’re in the wrong.

Will that change under either Holton or Rosenblum?

“This is the Oregon Department of Justice,” Holton said Thursday, “and I take the word ‘justice’ very seriously. When we make mistakes, we have to own up to them.

“If you treat the department as a law firm, your goal is to win for your client. That’s what law firms do. That’s not the job description for me. The ethos that should permeate everything we do is that we win when justice prevails.”

I thought a similar ethos and discipline would govern Kroger’s tenure. I was wrong.

In January, Rosenblum, who spent 22 years on the Oregon bench, told KPOJ, “I think a lot of people don’t realize that about 80 percent of the work of the attorney general is representing the government agencies,” later adding that she would distinguish herself from Kroger by focusing “on the highest quality of the advice that we give to the government agencies.”

Rosenblum has been running from that remark ever since — she did so again Friday at the City Club debate — because Holton is quoting it to suggest he’s the activist in the race, Rosenblum the office manager.

That’s unfortunate, because Rosenblum is right. And the AG’s time is much better spent cultivating a sense of justice in state agencies, and their lawyers, than it is in the quixotic, headline-generating misadventures.

It’s hard to know how passionate Rosenblum is in this regard. Holton gave me an hour; Rosenblum gave me a written statement. She spoke about being “the People’s Attorney General,” whatever that means, and building employee morale.

“If there are legal violations by an agency,” she continues, “it is the AG’s job to intervene and remedy the violations.”

I’m not sure Ben Alfano’s four youngest children would find a great deal of solace or inspiration in such parsing.

I’m looking for an AG who demands that agencies seek justice, not one who offers them sanctuary and self-serving advice when they screw up.

“You don’t have to go to war with the agency,” Holton said. “The agency needs you. If you have the right client relationship with them, you’re in a position to start leading them out of the woods.”

But that’s only possible if the new AG is paying attention.

If his or her budget isn’t governed by the agency’s lust for billable hours.

And if he or she — unlike ODVA and Kevin Carlson — is willing to raise the prism of Ben Alfano to the light.

Steve Duin

 Link to article:


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