Guardianship Reform Advocates
For The Disabled & Elderly
County survives Combs lawsuit
June 12, 2013 Kaufmanherald News By Gary E. Lindsley
The Supreme Court of Texas on Friday decided not to review an appeal filed by attorney Jo Ann E. Combs against Kaufman County’s commissioners.
In 2002, Combs was awarded $143,168.95 by a guardianship court for her services as attorney ad litem for Wallace A. Darst and his estate from 1995 until 2002.
However, U.S. Fifth Circuit Court of Appeals justices Joseph B. Morris, Molly Francis and Elizabeth Lang-Miers ruled July 31, 2012, “Because we conclude appellants have governmental immunity from suit on all of Combs’ claims, we reverse the trial court’s summary judgment and render judgment dismissing Combs’ lawsuit.”
The legal battle began June 24, 1994, when Joseph Darst, one of Wallace Darst’s sons, filed for guardianship of his father. Wallace Darst was suffering from Alzheimer’s disease, according to court documents. Wallace Darst died Dec. 18, 2000.
Other family members on July 5, 1994, contested Joseph Darst’s qualifications as a guardian. The matter then went before the county’s presiding judge, Maxine Darst, Wallace Darst’s sister-in-law. Maxine Darst recused herself from the case.
Attorneys then agreed to allow Judge Glen Ashworth, who was serving in the 86th District Court, to preside over the case. Ashworth then appointed Combs as guardian of Wallace Darst’s estate as well as his ad litem.
Eight years later, Combs billed the county for her services after the estate could not pay the bill. In 2002, Ashworth awarded Combs the $143,168.95 for fees and expenses.
In 2006, Combs filed a lawsuit against the county to recover the amount Ashworth ordered in 2002. However, Judge John Robert Adamson, a visiting judge in the 86th District Court, dismissed Combs’ suit in June 2007.
Then, in December 2008, the Fifth Circuit Court of Appeals in Dallas reversed Adamson’s decision.
Finally, after another appeal by the county in the Fifth Circuit Court of Appeals, based on the premise the county had governmental immunity, the court justices agreed and dismissed the case July 31.
“We were delighted,” Wood said after learning the Supreme Court of Texas on Friday had decided not to hear Combs’ appeal. “This is, financially, extremely good news. If we had been made to pay [her], it would have been more than $1 million.”
In September 2012, Wood said the case was a major cost factor for the county, and that the county’s commissioners had approved paying $402,406.46 to Bickerstaff Heath Delgado Acosta LLP. Another $95,901.60 was paid to Joseph E. Ashmore, who Wood said was called in as a witness for the county. FedEx was paid $2,820.65 for its services as well.
May 12, 2013 Austin American-Statesman By Andrea Ball
Additional reporting by Eric Dexheimer
Ninety-one-year-old Sophie Paulos spent three months and more than $30,000 proving to court officials that she was competent enough to run her own life.
Two of her daughters had told a local judge that they suspected Paulos was being financially exploited by family members. They said they were worried about her health. They questioned whether she was mentally sound.
By the time the three-month ordeal was over, Paulos says, she had paid $30,000 for court-appointed lawyers she never wanted and another $70,000 on related legal expenses.
“I was humiliated,” said Paulos, who is frustrated with court officials who she says drove up the bills. “I had to pay for this and they don’t care.”
Now Paulos’ son-in-law — former Texas Health and Human Services Commissioner Tom Suehs — is holding her case out as an example of how the guardianship system needs reform.
Since Paulos’ case was settled in October, Suehs has been connecting with legislators and guardianship advocates who say people are unfairly dragged through the courts and forced to spend thousands of dollars to protect their independence. Now they’re pushing for changes that would require speedier hearings and force courts to prove they need to intervene before launching full investigations. The proposals have drawn support from AARP and Rep. Stephanie Klick, R-Fort Worth.
But lawyers and judges say the proposed changes would leave people more vulnerable and throw unnecessary roadblocks into the process.
Adult guardianship cases are essentially lawsuits designed to ensure vulnerable seniors and people with disabilities are not abused, neglected or exploited. A probate court must determine whether people are competent enough to keep themselves safe and healthy. If a judge deems they are not, he can appoint a guardian to make medical, financial and other decisions for them.
Between September 2011 and August 2012, more than 4,500 adult guardianship petitions were filed in probate courts across the state. Of those, 206 were filed in Travis County.
Some guardianship cases — such as those for a person in a coma, for example — can be concluded in a matter of days. Others can takes months or years to resolve.
Those involved in the process say people often need guardians for reasons such as dementia or failing health. But sometimes people who need help don’t realize it or can’t recognize the signs of trouble, said Travis County Probate Court Judge Guy Herman. They don’t see that they are being scammed by strangers or giving away all their money.
Consequently, they balk at the the idea of needing a guardian, Herman said.
“Let’s face it, when there is a guardianship, somebody’s losing some rights,” he said. “It’s a loss of freedom and they’re well aware of it.”
Paulos certainly was.
“I am very hurt that they put this through the court,” she said. “I am not incompetent.”
Until 2009, the year she broke her leg, Paulos lived independently in her Austin home. Then she moved into a senior living community where she was happy. At some point — exactly when is a matter of disagreement among her three daughters — Christine Suehs began handling her mom’s money.
That move ultimately caused friction in the family, said Frances Rabel, who is Paulos’ daughter and lives in Spring. Rabel said she and her other sister, Marianne Clay, who lives in Hays County, were cut off from knowing anything about their mother’s financial affairs.
The sisters suspected the Suehs were exploiting their mother and that Paulos’ health was deteriorating. The Suehs denied they were taking advantage of her, saying that she made all the financial decisions, and that her health was not threatened.
On July 17, 2012, court documents show, Clay called the state’s Adult Protective Services division, which investigates allegations of abuse, neglect or exploitation. Both sisters also expressed their concerns in letters to Herman.
As required by law, Herman assigned someone to investigate the case. He appointed local attorney Nancy Scherer to serve as Paulos’ guardian ad litem, a lawyer charged with acting in Paulos’ best interest. Paulos had to pay the guardian about $300 an hour, the court-approved rate.
State law requires that guardians ad litem be paid either by the county or the estate of the suspected victim. In cases where someone is indigent, Travis County taxpayers give lawyers an hourly fee of $85 to $100.
The potential ward can not immediately refuse to have a guardian ad litem. As part of the investigation, guardians ad litem have access to the potential ward’s financial, medical and personal records.
Paulos immediately objected and hired her own attorney to fight the process. Now she was for paying two lawyers.
“I felt like I wasn’t a citizen,” Paulos said. “He’s asking me to give all my financial documents to a stranger? Who would do that?”
State law allows a potential ward to ask for a hearing at any time to challenge the court’s intervention. But nobody explained this to Paulos, according to the Suehs family.
As the guardian ad litem scrutinized the case, the state’s Adult Protective Services investigated and determined that Paulos was not being financially exploited, that her health was not threatened and that she was not being unduly influenced by Christine Suehs.
“Considering her age (90 years old), her medical diagnosis and physical limitations, Mrs. Paulos appears to be in an ideal situation in terms of her living environment and access to quality care and support,” the report states.
That document went to the court. But Scherer wanted Paulos to take a mental exam, which is often needed when a potential ward’s competency is questioned.
Adult Protective Services investigations are “just another piece of information,” said Scherer, who declined to discuss the Paulos case because of confidentiality constraints.
Judges, lawyers defend system
What followed was a back-and-forth that lasted for another two months. Paulos went to two doctors of her own choice, both of whom deemed her mentally sound. But Scherer rejected the results because the physicians didn’t perform the kind of tests she wanted. When Paulos went to a doctor picked by the guardian ad litem, he wanted more tests and she put her foot down.
Paulos’ daughters asked the court to appoint a permanent guardian to handle their mother’s decisions. The court appointed an attorney ad litem, which, by law, Paulos also had to pay.
The dispute finally ended with mediation. The terms of that settlement are confidential. All parties say they are satisfied with the results.
The Suehs say Paulos ended up paying $30,000 to court-appointed lawyers and another $70,000 for her own attorneys and estate planning costs she never would have incurred otherwise.
She wasn’t the only one saddled with legal bills. Rabel, who feels like the process worked well in this case, says she paid her own lawyer $20,000. The Suehs family also paid $20,000 in their legal expenses.
With Paulos’ permission, Suehs embarked on an effort to revise the guardianship process.
With support from Klick, AARP and families advocating for reforms, Suehs has proposed changes such as holding hearings within 15 days and forcing people to sign affidavits before bringing concerns to the court.
Judges and lawyers from across the state balked at such proposals.
Fifteen days might not be enough time to effectively determine whether someone is in jeopardy, said Austin lawyer Deborah Green, who regularly works guardianship lawsuits and served as Paulos’ attorney ad litem. They might not be able to get people to a doctor or review records, so a hearing could be a waste of time and money, she said.
Lin Morrisett, an associate judge for probate court in Tarrant County, opposes the idea of forcing people to sign affidavits before lodging concerns about someone’s safety. While he does see that as a “reasonable protection” against false allegations, he also worries that the new hurdle would keep people from reporting potential problems. He has never had a case in which he believed the guardianship application or information letter was brought in bad faith, he said.
Throughout the session, Suehs has approached legislators about attaching his proposed reforms to bills headed to the legislature. Those suggestions continue to evolve as the process goes on, but they all center around the same issues. Probate lawyers have offered compromises but none of that has been resolved.
“Before we remove somebody’s civil rights, we need to make sure they are, in fact, at risk, that they are being exploited and that they are incapable of making decisions,” Suehs said.
March 7, 2013 By Jack Douglas Jr. and Brian New, CBS 11 I Team
MINERAL WELLS (CBSDFW.COM) – Friends say Denise Tighe was an independent woman, a native of Switzerland who came to the United States and, as a young adult, helped manage a bank on Wall Street.
Later in life, she and her now-deceased husband moved to Mineral Wells, west of Fort Worth, where she maintained a home, made friends and got around town in her 1996 Buick Regal.
“She was a huge animal lover,” said friend Virginia Pritchett, especially when it came to her playful cat, a short-haired gray-and-white feline named Bobby.
But more than a year ago, friends and neighbors began to see a change in Tighe, who was in her mid-80s.
Her health, her independence, were slipping away.
“I will never have the heart to tell her that it happened to her, because it would kill her, it really would …it would kill her,” Pritchett said.
A court in February 2012 ruled that Tighe needed to be placed under the state’s guardianship program after finding that she was too “incapacitated,” both mentally and physically, to care for herself, and had little chance of rebounding.
The court, located in Palo Pinto County, also ruled that no one close to Tighe was capable of providing the care she needed. So it appointed a Fort Worth lawyer to be guardian over her belongings and financial affairs, and the state’s Department of Aging and Disability Services (DADS) to guard over her personal welfare.
Since then, Tighe has been moved to an assisted living facility in Weatherford, where her access to visitors must first be approved and monitored by the state.
One of her guardians arranged an estate sale at her house, where organizers promoted the sale of Tighe’s “high-end collectibles,” including Waterford Crystal, jewelry and “excellent furniture.”
And her house is up for sale.
“They just took her away,” friend Kathy Gilbreath told CBS 11’s I-Team.
The state says proceeds from the sales go toward caring for Tighe, and that the assisted living facility in Weatherford is the best place to receive that care.
So who’s taking care of Bobby…her cat?
“His health is almost perfect. There’s nothing wrong with him,” Mineral Wells veterinarian Flint Immel said, with Bobby purring in his lap.
Immel and his assistant, Angel Jiminez, told the I-Team they were shocked when Tighe’s court-appointed guardian called nearly a year ago and said he would no longer pay to have Bobby boarded at their clinic.
“He told me bluntly, the cat will be euthanized because there will be no more boarding fees paid,” Jiminez said.
But instead of putting Bobby down, Immel decided to adopt the cat. “We don’t put healthy cats to sleep …or any animal to sleep that’s healthy,” he said.
In an exclusive interview with the I-Team’s Brian New, Fort Worth attorney Robert Brownrigg said he routinely has to make hard decisions, such as when he was appointed to be a guardian for Tighe.
“Why did you decide to try and put her cat down?” New asked.
“So is that what’s bothering everybody …we didn’t do cat rescue?” Brownrigg responded.
He said he didn’t want to seem cruel, but that he has one focus – to look out for Tighe. And if that means disregarding her pet, then that is what he says he has to do.
“My job is to protect Ms. Tighe’s funds; not her cat,” Brownrigg said.
A spokeswoman for DADS repeatedly declined to comment on Tighe’s case.
What does Tighe think about all of this? We tried to visit with her several times at her new assisted-living home in Weatherford, but were told each time to leave.
The I-Team even went to the facility with Tighe’s sister and her friend, Gilbreath, only to be escorted out by the manager, at which time she announced: “The police department is here to visit with you, so if you’d like to explain your reasons for visiting …”
After that, the Department of Aging and Disability Services sent a letter to Gilbreath and Tighe’s sister, Suzanne Foley, saying they were no longer on an “approved” visitors list for Tighe. Future visits, the letter said, “must be pre-approved, arranged in advance and supervised” by a DADS staff member.
The state says Tighe’s visitors are screened to protect her privacy and to prevent someone from taking advantage of her.
Meanwhile, Bobby’s new owner, Dr. Immel, says he hopes the state will one day allow him and the cat to go visit Tighe.
“You can tell he’s been loved from the beginning. It would just be nice to have whoever raised him just see him again,” Immel said. “You know how much they must have cared for him.”
How judges, probate attorneys, and guardianship orgs abuse the vulnerable
September 5, 2012 My San Antonio By Michael Barajas
Joy Powers woke from a horrific car wreck to find she'd been appointed a guardian and stripped of her rights. Months later, court-appointed fees drained her life savings
A Bexar County court twice investigated whether Jack Hood was incapacitated when he contested a guardianship case involving his wife of 35 years.
Mary Dahlman's problem is all about money. A lot of people want at the estimated $20 million trust Dahlman's deceased mother left to her and her brother. Over the past year, a flock of local probate attorneys have already drained nearly half a million dollars in fees out of that trust.
And they want more. "I'm not dead yet," Dahlman, 67, said wryly in an interview with the Current this summer. "Obviously they can have it when I'm gone."
It's all that money that first brought Dahlman into court with Bexar County Probate Court 2 Judge Tom Rickhoff three years ago. Dahlman has a knack for explaining dizzying financial details with crystal clarity: trust managers at Falcon Bank, she claims, had begun to withhold depletion taxes from the trust, calling it principle then making Dahlman and her brother pay income tax on cash they never got. Lawyers with Falcon Bank denied they'd made a mistake, and the lawsuit was set to play out in Rickhoff's court.
That is until Rickhoff and attorneys in his court began tossing around the loaded word "incapacitated."
By summer 2011, Dahlman insisted, Rickhoff got fed up with the Falcon Bank dispute and, as she recalled it, "Judge Rickhoff comes out and says he's so tired of seeing me in his courtroom. He says, 'I'm gonna see if she needs a guardian.'"
Stripping away someone's rights in court can be messy, expensive business, especially when family squabbles or large, contested estates exacerbate things.
In Texas it's estimated some 30,000 to 50,000 disabled and elderly persons have been declared incapacitated and ordered into guardianships, losing the right to decide where they live or how they spend their money. Nationally the number of those declared incapacitated is rising fast as baby boomers age. Reports of mistreatment, neglect, and problems involving both relatives and non-family members appointed by courts to protect them have also risen, according to reports from the federal Government Accountability Office, which in 2010 and 2011 issued warnings of increasing numbers of elderly and disabled people neglected and ripped-off under guardianships.
With guardianship hanging over her head, Dahlman's Falcon Bank lawsuit was put on hold, and it's been a fiasco ever since, she says. William Bailey, a court-appointed attorney and a regular in Rickhoff's court, investigated years of Dahlman's financial statements, scouring through every check she'd written, each transaction, every gift to friends and family. Bailey's conclusion: People for years had been financially exploiting Dahlman, making her no longer mentally fit to watch over her own sizeable estate. He urged Rickhoff to appoint a guardian to freeze, take over, and manage Dahlman's finances for her, meanwhile Dahlman's three estranged daughters, perhaps out of fear that their mother was burning through their inheritance, filed motions to have the court appoint a guardian.
Click to read the full story How-judges-probate-attorneys-and-guardianship-orgs-abuse-the-vulnerable-1.1367105
September 4, 2012 Houston Chronicle By Lise Olsen
A 73-year-old attorney pleaded guilty in Houston federal district court Tuesday to conspiring with his wife to steal $2.3 million from 49 disabled veterans and then hiding the thefts by creating fake reports, imaginary bank accounts and filing a bogus income tax return.
As part of his guilty plea to two of 21 charges against him, Joe B. Phillips admitted to transferring more than $1.36 million from veterans clients' accounts directly to a joint checking account that he shared with his wife between 2003 and 2007.
Phillips' wife, Dorothy, a self-described gambling addict, pleaded guilty to similar charges in April. The 72-year-old admitted to misusing some veterans' money to fund casino trips to Louisiana, where she often gambled at L'Auberge du Lac and Delta Downs, court records show.
But Joe Phillips had insisted on his innocence until Tuesday - minutes before jury selection for his trial was to begin and after his attorneys warned him in open court that his wife's admissions to the couple's conspiracy had damaged his defense.
During that period, the couple withdrew a similar amount in cash, sometimes from ATMs inside casinos on gambling trips. He also acknowledged signing false accounting statements and a bogus income tax return.
Kenneth Magidson, U.S. attorney for the Southern District of Texas said he places a "high priority" on cases involving veterans. "Veterans devote their services and lives to their country and, as deserved, afforded certain benefits. We do not take it lightly when someone violates the trust of these Veterans and takes away what is rightfully theirs by such unscrupulous fraud."
Phillips, who has remained free on $100,000 bond since first being charged in 2010, is expected to be sentenced in December. He declined to comment.
Click to read the full story: http://www.chron.com/news/houston-texas/article/Attorney-pleads-guilty-to-stealing-millions-from-3838605.php
5th Court of Appeals overturns Combs case; finds for Kaufman Court
July 31, 2012 The KaufmanHerald By Loyd Cook http://www.kaufmanherald.com/articles/2012/07/31/news/doc5018690b7365f516034189.txt
The Fifth Court of Appeals in Dallas overturned a lower court decision that would have seen Kaufman County pay out $143,168.95 as ordered by a guardianship court in September 2002.
That court awarded the monetary figure to attorney Jo Ann E. Combs for her fees and expenses arising from a guardianship case. After the matter was complete, and the estate in question did not have the funds to pay the claim, Combs went to the commissioners court to pay the bill.
The matter ended up in the justice system. This was the second time through the Fifth Court of Appeals.
The Fifth Court issued the ruling dismissing the monetary award and reversing the decision against Kaufman County, during its proceedings today (July 31).
For more complete information on the Fifth Court of Appeals decision and reaction from county officials, read next week's print edition of The Kaufman Herald and next week's online edition.
Caregiver accused of stealing from elderly
July 4, 2012 My San Antonio By Eva Ruth Moravec
John Steven Braden, 66, is accused of stealing from an elderly woman for whom he was a caregiver and legal guardian. Photo: Courtesy Photo / SA
An elderly woman's caregiver is accused of stealing nearly $200,000 from her over the course of two years, officials said.
John Steven Braden, 66, is being held in Bexar County Jail on one count of misapplication of fiduciary property, from $100,000 to $200,000. A judge set bail at $50,000.
Police said Braden, who was given power of attorney over a 79-year-old woman, stole money from her individual accounts and her Texas Adult Protective Services account.
Since December 2010, he made cash withdrawals from the woman's account and filled out checks from her to himself totaling $195,000, police said.
Read more: http://www.mysanantonio.com/news/local_news/article/Caregiver-accused-of-stealing-from-elderly-woman-3684199.php#ixzz26I2snmxJ
Diboll’s municipal court judge has agreed to resign from his post to avoid possible disciplinary action after a complaint was filed alleging unethical conduct, according to the State Commission on Judicial Conduct.
Diboll Municipal Court Judge R.G. Bowers, who has been on medical leave from his post since January, signed an agreement with the Commission this week after an April 27, 2011, complaint alleged that Bowers had engaged in unethical or illegal conduct by providing false testimony, signing a false affidavit and encouraging another individual to provide false testimony in a probate court proceeding, according to the agreement contained in an email from the Commission.
Bowers did not file a formal response to the Commission’s letter of inquiry in the matter, a copy of the agreement stated, and denied he had any criminal intent when he engaged in the conduct.
The agreement also stated that no findings of fact or conclusions of law have been made by the Commission in the matter.
By signing the agreement, the Commission said it would not pursue disciplinary proceedings. The agreement also prohibits Bowers from any future judicial service in the state.
According to the agreement, Bowers does not admit guilt, fault or liability in the matter contained in the complaint.
All questions regarding Bowers were referred by Diboll officials to City Attorney Jimmy Cassels, who said he could not immediately confirm a resignation had been tendered.
“I don’t know anything about this incident,” Cassels said. “I know that Judge Bowers is very sick. It looks like he entered into this voluntary agreement. Judge Bowers, as far as his dealings with me, did a really good job. I’m very sad to know he’s in the physical condition that he’s in and has the illness he has, and I wish him the best.”
On Thursday, Cassels said the matter in the complaint did not occur as part of Bower’s capacity as Diboll municipal judge.
The Diboll City Council appointed Julie Alston as associate municipal judge on Jan. 9 because of Bowers’ health concerns.
Mary Ellen Bendtsen estate case alleges conspiracy of exploitation, attempted 4949 Swiss Ave. theft by McCay, friends (TX)
“I don’t do things like that. I do things according to the law.”
Those statements responding to a prosecutor’s question prompted tears today in a Dallas courtroom. And when you’ve been there, it’s especially hard to watch.
One of the toughest things about addressing probate abuse is repeated reminders of how it blindsides people – people who never thought of going outside the law or the bounds of what used to be “acceptable society” for their own personal gain or self-interest. Yet it happens all the time – especially when it comes to illicit activities using wills, trusts, guardianships or powers of attorneys – or as we call them here at Estate of Denial®, Involuntary Redistribution of Assets (IRA) actions.
This afternoon became a far more emotional experience than expected as Estate of Denial® attended the Dallas trial of Mark McCay, an antique dealer, charged with attempted theft of assets – mainly a run-down yet notable house, 4949 Swiss Ave., in one of Dallas’ most beloved neighborhoods. McCay and two other defendants are accused of conspiring to exploit Mary Ellen Bendtsen’s declining mental (and physical) state so as to have her sign a will leaving the house to McCay and his partner, Justin Burgess, instead of her daughter, Frances Ann Giron. In addition to McCay and Burgess, a third defendant, now-disbarred attorney Edwin Olsen also faces charges.
While at the hearing, two witnesses provided especially poignant testimony. In January 2005, Danielle Verot was invited by casual friends to a party at 4949 Swiss Ave. For those of us who follow abusive probate cases, patterns routinely emerge. Verot’s testimony about her encounter that night with Mary Ellen Bendtsen along with McCay, Burgess and Olsen painted a familiar yet haunting picture.
She described Bendtsen as “weak and slow,” not “real vibrant or animated.” Displaying “kind of a vague look,” Verot told of Bendtsen becoming “startled, disconnected and frightened” – almost losing her balance – upon hearing an outburst of laughter from party-goers in another room. When assisting Bendtsen to the second floor of her house, Verot described coming across what appeared to be a home healthcare aide “laying on a bed flipping through a magazine” while McCay was in a bathroom scrubbing the floor. With perhaps eight to 10 guests that night, Bendtsen, Verot and the unidentified “aide” were the only women in attendance. Despite the occasion allegedly celebrating Bendtsen’s return home after a fall and stay in a skilled nursing facility, Verot said Bendtsen didn’t really participate in the party – in fact, no one was really paying attention to her.
Verot also testified to hearing negative references to Bendtsen’s daughter, Frances Ann. This starkly contrasted Verot’s earlier experience almost immediately upon meeting Bendtsen when the elderly woman pulled out a picture and spoke fondly of her daughter. Later in the evening when Bendtsen attempted playing the piano and seemed visibly upset with not being able to finish a song was another impression Verot recalled as also was a conversation with McCay in which he pressed Verot, a professional home renovation contractor, on cost estimates for remodeling the 4949 Swiss Ave. house.
Toward the end of her testimony, Verot recounted a scene occurring as she and her companions were preparing to leave the party in which McCay, Burgess and presumably Olsen were strongly talking to Bendtsen about the need for her to pay her property taxes. She described the space in which this happened and the physical crowding around Bendtsen as “invading her space and intimidating.” In cross-examination, McCay’s defense attorneys asked questions seemingly attempting to characterize the scene as not unusual considering it was the end of January, the deadline for paying property taxes prior to accrual of interest and penalties.
Final direct examination questions centered on a phone call Verot received the next day in which she testified that McCay relayed how much Bendtsen liked Verot and needed her support. Desired support, Verot said, was encouragement to be at court for an upcoming guardianship hearing. She said that McCay re-emphasized they really wanted to do business (with her as a home renovation contractor) and “that it would really be helpful for her to show up in court.”
Additional memorable testimony came when Frances Ann Giron, Bendtsen’s daughter, took the stand. By all reputable accounts, Bendtsen enjoyed positive, regular relationships with many family members and friends. Giron described a close relationship with her mother throughout decades in which the two women both lived in the Dallas area and in recent years, was only interrupted by an interval from 1998 through 2004 when Giron accompanied her husband on a series of professional assignments requiring residency in other states. Even during this time, however, she maintained regular phone contact with her mother and visits were scheduled at least two to three times per year.
Giron spoke of moving back to Plano in October 2004 with caring for her mother as a major impetus for the relocation. In earlier years, she was seeing signs that Bendtsen was “having problems.” Giron was also aware of the relationship her mother had with Mark McCay and Justin Burgess to the extent that she insisted on hosting a dinner during one visit so as to meet “the boys” as Bendtsen called them. In testimony, Giron described McCay’s behavior at that dinner as a “fawning puppy” terming his compliments and attitudes as inappropriate – “treating Bendtsen more like a date than an elderly lady he respected.”
After the dinner, Giron said she was “very nervous” over the relationship as she thought they were exploiting her mother. A period in which Giron was “relieved” thinking the involvement had ended didn’t last.
Bendtsen spent Giron’s first six weeks back in Plano living at her daughter’s house and helping her unpack. While Giron hoped the living arrangement would be permanent, she said her mother insisted on “going home to 4949″ and she complied explaining “you didn’t argue with Mary Ellen.”
January 12, 2005, brought Bendtsen to an emergency room as she had fallen and suffered a gash over her eyebrow. Having also hit her head, a “brain bleed” was discovered and treated. At this point, Giron had a power of attorney drawn up in realizing her mother was incapable of making her own decisions.
A doctor later suggested investigating rehab facilities. Giron and her cousin explored options and identified a location six blocks from her home although Giron testified how she ultimately planned to care for her mother in her own home, not in a nursing home. She described Bendtsen as “terrified” of going to some place like that and how “we take care of people in our family.”
Upon coming home from the rehab facility search, Giron described finding a message from an Adult Protective Services officer. She then told of arriving at the hospital only to be informed that McCay was now Bendtsen’s POA, all contact must be coordinated through him. Giron testified that she was blocked from entering her mother’s room and that McCay’s arrogance made her afraid. When asked why she didn’t just “push your way in,” Giron responded “I don’t do things like that. I do things according to the law.”
Giron’s efforts to obtain a temporary guardianship were also denied by Dallas County probate Judge Robert E. Price and her mother ended up back at 4949 Swiss Ave. On Feb. 22, 2005, Bendtsen was rushed back to Baylor University Medical Center at Dallas. Giron said she was notified by John Arneson, the court-appointed attorney ad litem in her mother’s guardianship case, upon his learning Bendtsen’s status – two days after her hospital admission. Despite Giron and her aunt, Ann “Pretty Annie” McClamrock, arriving at the hospital within hours of this news, both women were barred from seeing Bendtsen.
Only after a new legal motion was filed, Giron testified, was she given permission to see Bendtsen for one hour (at a designated time) per day, but by that time, Bendtsen was in a coma. In her testimony, Giron told of McCay coming in while she was visiting her mother. “Arrogance” was a characterization used throughout her testimony to describe his demeanor. During this particular time, she said he spoke to her and she responded “I hope you rot in hell!” Giron said that day, Feb. 23, was the last time she saw her mother. Bendtsen died March 2, 2005.
Giron’s testimony of Bendtsen’s final hospital trip interestingly combined with the afternoon’s earlier testimony by Dr. James D’Etienne, an Emergency Medicine physician. In his testimony, D’Etienne reviewed notes which indicated how patient information was provided by her “POA” and that “estrangement” from her daughter and sister was part of the history given.
The doctor also recalled how “circumstances were odd” as the nurses discussed with him that in the early hours after Bendtsen’s admittance, people were taking pictures (video) and wanting signatures from the patient. When asked if he would have felt comfortable being a witness to legal documents executed by Mary Ellen Bendtsen, D’Etienne replied “no.” It was during this time that McCay, Burgess and Olsen were on hand to provide Bendtsen a new will diverting her estate from Giron and instead to McCay and Burgess.
The trial resumes Friday with Frances Ann Giron’s cross-examination by the McCay defense team. Estate of Denial® has a prior out-of-state commitment over the next few days, but plans to catch more of the trial next week.
Meanwhile, we call your attention to the following articles published this week about the trial:
UPDATE: Testimony begins for man accused of trying to swindle Swiss Avenue home from late former model Mary Ellen Bendtsen
June 12, 2012
The Dallas Morning News
For background, check out the 2006 series entitled Mary Ellen’s will: The Battle for 4949 Swiss that was written by Lee Hancock, published by The Dallas Morning News. This series gives great background and context regarding how and why we are seeing this trial underway today.
Stay tuned! More on this case next week.
Lawyers giving judges cash typical, troubling
June 2, 2012 Express-News columnist By Brian Chasnoff
Two bottles of Scotch and plenty of beer.
A gaggle of probate attorneys gathered at a law office to drink and discuss the re-election of a probate judge.
And finally, the judge himself, dropping by with a list of names of other attorneys who could be persuaded to contribute money to his re-election campaign.
That scene unfolded in 2010. It was recalled this week in a Bexar County courtroom.
Unusual? Not at all.
Attorney Phil Ross on Thursday tried to convince Judge David Peeples it was unusual enough to require the recusal of Judge Tom Rickhoff in a guardianship case.
At the hearing, Ross accused Rickhoff of unfairly favoring Mark Stanton Smith, the attorney at whose office the lawyers had met to discuss bundling cash for Rickhoff.
Smith is representing a bank in a case related to the guardianship of Mary Dahlman, Ross' client.
Peeples, however, was correct to stop Ross from delving too deeply into these details. Before he'd consider the fairness of Rickhoff's rulings, the judge would first have to agree that the relationship between Smith and Rickhoff was inappropriate.
As Peeples put it: Before Ross could prove there's fire, he would first have to prove there's smoke.
So Ross called Smith to the stand, asking him to describe his relationship with Rickhoff.
The attorney said he and the judge were not close friends. They'd been to lunch three times. He'd contributed money to Rickhoff's re-election campaign.
“It's a typical thing that I do to the judges that are in the courts,” Smith said.
With relish, Ross reminded Smith about the cash-bundling meeting at his law office.
Smith admitted there'd been two in 2010, others in 2006. The attorneys had agreed to call about 20 people each and solicit cash for the judge's re-election.
At one meeting, Rickhoff had shown up with U.S. Congressman Lamar Smith.
“There was a lot of laughing, joking, having a good time,” Mark Smith said.
He added, “The idea that you have that Judge Rickhoff is somehow favoring me or my clients is baloney.”
Ross then called William Bailey, an attorney also present at the cash-bundling meetings.
Last year, Rickhoff appointed Bailey to decide whether Dahlman, Ross' client, was incapacitated and unable to manage a $20 million trust.
Bailey concluded that she was; Rickhoff appointed Bailey as her guardian, a decision that Ross says benefits Bailey and Mark Smith.
On the stand, Bailey grew indignant at the notion that his fundraising for Rickhoff had affected Rickhoff's judgment in the courtroom.
He burst into laughter when Ross asked, “How long did the meeting last with the beer-drinking and the whiskey-drinking?”
Later, Bailey said, “We were all concerned about the re-election of Judge Rickhoff because he's such an outstanding judge.”
Before ruling whether Ross had proved smoke, Peeples seemed aware he was considering an issue that far transcended one judge.
“If you are correct,” Peeples said, “potentially, wouldn't (this affect) every judge in cases involving lawyers that help them significantly in their campaigns, more than just contributing money, contributing a big sum of money, work for them, send out letters, work the poll for a morning on election day, put out the yard signs, all these judges that got some of these lawyers in their court?”
Peeples denied the motion for recusal.
But this was not a denial of smoke. It was an acknowledgment, rather, of so much smoke in the courtrooms of elected judges across Texas, it's impossible to find any fire.
It's also another reason that Texas needs to find a new way to pick judges.
Disabled vets ripped off by fiduciaries appointed by the VA
May 21, 2012 Texas Watchdog By Mike Cronin
A Houston Chronicle investigation has revealed that federally approved fiduciaries have stolen from disabled veterans in Texas, in many cases tens of thousands of dollars.
Only recently have U.S. Department of Veterans Affairs officials begun requiring background and credit checks for those who want to become fiduciaries.
Hyman: People must stand up to injustice, not ignore it
April 18, 2012 Chicago Daily Law Bulletin By Michael B. Hyman
The utter failure of Nazi Germany’s judges and lawyers to rebuke an evil regime and evil laws serves as a harsh reminder, especially on Holocaust Remembrance Day, of the incalculable consequences whenever the legal profession abandons its duty to defy injustices. This year Holocaust Remembrance Day begins this evening.
A usual justification for the blatant cowardice and complicity of the German legal profession is that their lives and livelihoods would have been endangered, if not ruined or worse. (Another, of course, is blatant anti-Semitism.) Regardless, even if overt defiance was risky, the stagnant apathy by a profession that supposedly cherishes fairness, truth, and protecting individual rights eludes understanding. Then again, the Holocaust itself eludes conventional explanation, let alone understanding.
“Defying Hitler,” written in the 1930s, is the autobiographical account of a law student with a social conscience who conceals his anti-Nazi sentiments. The author, Sebastian Haffner, remains silent while witnessing the exclusion of Jewish judges and lawyers from the courts and the gradual dehumanization of German Jews.
Particularly chilling is his observation of his own impassiveness and that of the legal community. Haffner’s words confront us: “Few things are more ridiculous than the calm, remote manner in which I, and others like me, observed the events around us, as if we were spectators at the theater.”
Although the Holocaust is unique; today, still, terror and madness and atrocity stalk the world. Not a day passes without another mother losing her child to violence; without another example of racism, xenophobia or extremism in our workplaces, neighborhoods and cities; without another threat to somebody’s civil liberties.
Are we, for whom fairness, truth and protecting individual rights matter, also mere “spectators at the theater?”
Early days of Nazi rule
Within weeks of Adolf Hitler taking power in 1933, the Nazis ordered German police not to protect Jews or their property, barred Jews from juries and dismissed Jewish judges, lawyers and clerks from government positions. About 16 percent of all German lawyers were of the Jewish faith.
Haffner writes about a visit to the local courthouse on one of the early days of Nazi rule. There, he saw Jewish attorneys “as though this were a day like any other.” Haffner withdrew to the library. Suddenly noises erupt. The dreaded SA (known as storm troopers or brown shirts).
Soon, Haffner writes, shouts of “Out with the Jews!” stab the air. Someone in the library reports that the Jews have left, provoking a smattering of giggles. Haffner recognizes the offenders as fellow law students.
Although the Jewish judges “had removed their robes and left the building quietly and civilly, going down the staircase lined with SA men,” Jewish lawyers who resist are dragged to the street. Haffner learns that at least one attorney was beaten, a proud wounded veteran of the world war.
The storm troopers finally arrive in the library to inspect for Jews. A brown shirt comes up to Haffner. Is he Aryan? Immediately Haffner replies, “Yes.” Haffner adds, “He took a close look at my nose — and retired. The blood shot to my face. A moment too late I felt the shame, the defeat. I had said ‘Yes’! Well, in God’s name, I was indeed an ‘Aryan.’ I had not lied, I had allowed something much worse to happen. … I had failed my very first test.”
Later, the guilt-ridden Haffner calls into question the reaction of the lawyers and law students in the library: “Why didn’t anyone get up spontaneously and object? Why didn’t they protest, if not against everything, then at least against some specific injustice, some unfair incident that took place in their midst?”
Historians have revealed hardly a public instance of Nazi Germany’s judiciary or bar associations lamenting or sympathizing with the plight of their Jewish brethren.
Due to the standing of judges in German society, according to the U.S. Holocaust Memorial Museum, the judiciary “might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws….” Moreover, “most [judges] not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis’ ability to carry out their agenda.”
Similarly, German bar associations went along with hardly a murmur of disapproval. In August 1933, the German Lawyers’ Association threatened a boycott of law firms that had not dismissed their Jewish lawyers. The next month the German Bar Congress banned Jewish lawyers.
By ridding the court system of Jewish judges and lawyers, and in short order civil cases involving Jewish litigants, the Nazis virtually cut off Jews from access to the courts. Jews found themselves at the mercy of the murderous Nazis. It is not unusual for repressive governments to initially target the legal profession — society’s guardians of justice, defenders of minorities, keepers of liberties.
Undeniably, a prerequisite to ensure that justice flourishes is the strong presence of diverse judges and lawyers in the profession. Injustice breeds in the absence of diversity. This is one reason for the existence of the Jewish Judges Association of Illinois, the Decalogue Society of Lawyers, the Illinois Judicial Council, the Cook County Bar Association, the Hispanic Lawyers Association of Illinois, the Alliance of Illinois Judges and dozens of other legal groups.
Another reason these organizations and the mainstream bar associations exist is to ensure access to justice for all. Without refuge to the courts, the vulnerable and violated can easily become victims and estranged from society, which is why performing pro bono services is so critical.
The heinousness of the Holocaust should not obscure another lesson gleaned from Haffner’s story — how we respond on hearing or seeing or reading about a terrible injustice committed here and beyond. Do we giggle? Do we nod our heads, but move on to the next file? Or, do we take action to end it?
Judge Michael B. Hyman, a former president of The Chicago Bar Association, sits in the General Chancery Division of Cook County Circuit Court. He is the president of the Jewish Judges Association of Illinois.
April 10, 2012 Austin American-Stateman By Mike Ward
State lawmakers on Tuesday blasted the secrecy of a state agency that polices misconduct by Texas judges and seemed receptive to a proposal for more public disclosure and enforcement of ethics laws that govern legislators and other public officials.
The Sunset Advisory Commission did not formally vote on the recommended changes for the state Commission on Judicial Conduct or the Texas Ethics Commission. But panelists made it clear during a daylong public hearing at the Capitol that they are leaning toward reforms.
The 12-member commission, made up of five senators, five House members and two public members, periodically measures the performance of state agencies to determine whether they should continue operating or be merged or closed.
Texas Ethics Commission staff recommended strengthening the agency's enforcement abilities, reducing penalties for minor paperwork mistakes and making more disclosure documents available to the public online.
Sunset commission chairman Dennis Bonnen, R-Angleton, at several points seemed to support many of the proposed changes, which were endorsed by a parade of government-watchdog advocates and citizens.
If the panel eventually supports the staff recommendations, the ethics commission could end up with its first-ever enforcement division and greater power to subpoena records to investigate complaints.
"We feel it's in the public's interest to have an open situation where there's daylight all through the transactions we have," said Tom Ramsay, a retired lawmaker from East Texas who chairs the ethics commission.
Even so, changing ethics laws at the Capitol has been difficult in the past. The commission was created two decades ago after a legislative influence-peddling scandal. No matter how much support reforms might seem to have at a meeting, approval can be derailed after lawmakers ponder whether they really want to give an agency more power to bust them for violations.
Sen. Robert Nichols, R-Jacksonville, questioned whether the changes might be misperceived by the public.
"Some of us are concerned that the watchdog groups are ... going to holler that we're watering down the ethics rules," he said.
"It's time for an adjustment," answered Tom Smith, Texas director of Public Citizen, a longtime watchdog group. "We've got your back."
The commission is expected to vote this summer on the proposals.
While the ethics changes drew support Tuesday, the judicial conduct commission drew angry rebukes from lawmakers who were upset about the agency's secrecy.
Lawmakers expressed concern that the judicial commission asserted attorney-client privilege to keep secret some of its investigation records.
"I've never heard of that," said Sen. John Whitmire, D-Houston, citing an attorney general's opinion from 2000 that said the records should have been provided to the Sunset commission staff. "If we had other agencies asserting that, we'd have to shut down everything up here."
Rep. Byron Cook, R-Corsicana, suggested that the judicial agency meet again with the Sunset staff before its June meeting and work out a way to provide access to the necessary records.
Tom Cunningham, chairman of the judicial conduct commission, said provisions in state law and the Texas Constitution make their records confidential — provisions the agency cannot waive.
Additional witnesses complained that the judicial commission had not fully investigated or prosecuted cases of judicial misconduct, claims that could not be verified because of the agency's secrecy.
"We citizens of Texas have the right to know who the bad judges are," said J. Gary Trichter, president of the Texas Criminal Defense Lawyers Association,.
Posted: 08 Apr 2012 01:13 AM PDT
Recent Estate of Denial® postings reported on the Texas Sunset Advisory Commission’s dismal findings in its staff report on the State Commission on Judicial Conduct. Here’s how the Austin American-Statesman described the Sunset Advisory Commission’s effort:
A staff presentation and public testimony is scheduled at 10 a.m. Tuesday, April 10, in the Senate Finance Committee Room (Room E1.036, Capitol Extension).
In our years of following questionable probate court activities, probate judges such as Bexar County’s Tom Rickhoff and former Denton County Probate Judge Don Windle have been referred to the Commission on Judicial Conduct.
Rickhoff’s 2009 referral spawned legal action that included the 5th U.S. Circuit Court of Appeals recently affirming a prior ruling against the judge. Windle received a public reprimand in 2006. Questions continued to surround Windle’s court up through his 2010 retirement.
And any false sense of security that judicial retirement brings an end to legal case influence is completely misplaced. EoD has heard that Windle will serve as a visiting judge in Collin County presiding over a probate dispute later this week.
Click here for live internet access to Tuesday’s hearing.
Judge Tom Rickhoff, who presides over Bexar County Probate Court 2, has recused himself from a case that was the subject of my column last week.
In “Probate judge is shunting aside Texas law,” I echoed a reversal by the Fourth Court of Appeals, which argued that Rickhoff was ignoring Section 883 of the Texas Probate Code.
The law states that when a spouse is incapacitated, the other spouse “acquires full power to manage, control, and dispose of the entire community estate as community administrator.”
My column featured Jack Hood, an 88-year-old World War II veteran whose wife, Billie Ray, suffers from Alzheimer’s disease. Despite numerous evaluations confirming Jack is mentally competent, Rickhoff signed an order channeling most of the married couple’s assets to Billie Ray’s daughter.
Despite the appeals court decision, Rickhoff seemed unswayed by Section 883 at a hearing last week. I pointed that out in my column.
Today, the judge signed a “motion order of referral” that states the following:
“On this date, the court on its own motion and based on the considerable controversy and animus created by this case, and the recent filing of a judicial complaint against Judge Thomas E. Rickhoff, presiding judge of Probate Court #2 by one of the litigants in this matter, Judge Thomas E. Rickhoff, presiding judge of the (sic) has decided to voluntarily recuse itself in accordance with section 25.00255 of the Texas Government Code from further hearings on the matter and requests that the clerk who serves the statutory probate courts of Bexar County randomly re-assign this case to a judge of the other statutory probate courts that are located in this county.”
March 25, 2012 Hartford Courant by Rick Green
The state Supreme Court, in a ground-breaking ruling, has found that conservators appointed by probate court only have limited immunity and “quasi-judicial immunity” does not extend to lawyers appointed in probate proceedings. Nursing homes, meanwhile, do not have immunity “under any circumstances.”
It means that if a lawyer screws up — or rips you off — when he is supposed to be helping you in probate court, you can sue him.
The ruling stems from the infamous Dan Gross case in Waterbury, where an elderly Long Island man was held against his will in a Connecticut nursing home by a probate court.
The ruling is a huge victory for people who feel the abused by probate court.
From the decision released today:
The certified questions are answered as follows: (1)absolute quasi-judicial immunity extends to a conservator appointed by the Probate Court only when the conservatories executing an order of the Probate Court or the conservator’s actions are ratified by the Probate Court; (2) absolute quasi-judicial immunity does not extend to attorneys appointed to represent respondents in conservatorship proceedings or conservatees; and(3) our analysis of the first and second certified questions is responsive to the third certified question as it relates to the roles of conservators and court-appointed attorneys; with respect to nursing homes caring for conservatees, we conclude that their function does not entitle them to quasi-judicial immunity under any circumstances.
Probate judge is shunting aside Texas law
March 22, 2012 - Express-News columnist By Brian Chasnoff
Jack Hood is 88 years old, but I wouldn't place any bets against him in an arm wrestling match.
The World War II veteran says he still submits to workouts that include 200 curls of 25-pound dumbbells.
“Don't (mess) with me,” Hood warned Tuesday.
I can't print the expletive he actually said. But I also can't print an image of the grin that followed, proving the old man remains not only tough, but also funny and sharp.
It matters, though, because Hood's stepdaughter and her attorneys are arguing in court that he is not qualified to manage the assets he shares with his wife of 35 years, Billie Ray Hood, who suffers from Alzheimer's disease.
Debra Catalani, who is Billie Ray's daughter, is instead arguing that she should control the couple's assets, a claim that shunts aside state law.
The law — Section 883 of the Texas Probate Code — states that when one spouse is incapacitated, the other spouse “acquires full power to manage, control, and dispose of the entire community estate as community administrator.”
Nonetheless, the same probate judge who has considered the dispute for more than two years, Judge Tom Rickhoff, signed an order channeling much of Jack and Billie Ray's assets to Catalani.
Last month, the Fourth Court of Appeals reversed Rickhoff's partition order and remanded it back to his court for more hearings.
“Incredibly, Section 883 was not raised in the trial court by the parties or by the trial judge,” the chief justice wrote.
It's been a frustrating two years for Jack Hood.
I can understand why.
Jack and Billie Ray met and married in San Antonio. His Air Force career took the couple around the world; they settled here when he retired.
Jack kept working part-time, paying off the mortgage on their North Side home. He says his wife grew ill in 2007, and Catalani moved into their home soon after to help care for her mother.
A doctor's letter written in 2009 states the disease “has been progressive over the last several years.”
Despite her condition, Billie Ray signed a document that year designating Catalani as her guardian.
Jack filed a motion to become his wife's guardian instead, asserting his stepdaughter was squandering their money. Rickhoff ordered a psychiatric evaluation, which Jack passed.
“His judgment is good, and his insight is good,” the doctor wrote.
Rickhoff appointed Catalani as guardian of Billie Ray anyway.
A few months later, Jack told the judge his age.
“Oh, you are 86?” Rickhoff said. “Well, the federal government, I'll tell you folks, this doesn't mean it applies to him, but the statistic is that that everybody in America who is 85 has some dementia.”
Months later, Catalani's attorneys filed a motion channeling much of the married couple's assets to her. With no evidence introduced during the hearing, Rickhoff signed the order, praising it as “the most thorough I've ever had here.”
The court battle dragged on. Last year, at the suggestion of Catalani's attorney, Rickhoff again sought a ruling on Jack's competency.
“See, I always thought that,” Rickhoff said then. “I used to say to y'all that it might be a part of his condition that he is having all these recalcitrant problems.”
Jack was later found competent, of course.
The only recalcitrance here is Rickhoff's baffling failure to apply Section 883 to the case.
“I've never done an 883 before, and I've never needed to do an 883 before,” Rickhoff said at Wednesday's hearing for a motion filed by Jack's attorney to recoup thousands of dollars from Catalani.
Instead, Rickhoff allowed a continuance to gather more evidence of the long-married couple's community assets.
“Why do we need to do (an 883) in this case?” Rickhoff asked Catalani's attorney, who answered they needed to clarify the couple's assets so they could be channeled to Catalani.
“Something's counter-intuitive here,” Rickhoff said, gripping his head.
That would be your partition order, judge.
Read more: http://www.mysanantonio.com/news/news_columnists/article/Probate-judge-is-shunting-aside-Texas-law-3425738.php#ixzz1pxxyGa8r
Two Metrocom cities have jumped on the bandwagon in calling for the resignation of a Guadalupe County judge.
The Schertz and Cibolo city councils are backing a resolution that applauds the efforts of two county commissioners who are requesting that County Judge Mike Wiggins step down. County commissioners Jim Wolverton, who represents the Schertz-Cibolo area, and Kyle Kutscher asked for Wiggins' resignation after his Feb. 6 arrest for possession of marijuana in College Station.
According to police reports, the county judge was found in possession of less than 2 ounces of marijuana in a hotel room. Wiggins was in College Station that week attending a conference of state county officials.
Despite calls for his resignation, Wiggins, a former state trooper, has refused to step down. On Feb. 27 commissioners approved a non-binding resolution, by a 2-1 vote with one commissioner abstaining that called for Wiggins to resign. Supporting the resolution were Wolverton and Kutscher; voting against was Wiggins.
February 14, 2012 Estate of Denial™ By Lou Ann Anderson
D Magazine Editor in Chief/Founder Wick Allison has a new post about Tarrant County (TX ) Probate Judge Pat Ferchill. Allison writes:
That Ferchill sent the Court of Appeals ruling to Allison is quite interesting. Courts always claim to have heavy dockets. With that, one can question taxpayer benefit of the judge’s time spent attempting to rehabilitate his personal as well as his industry’s image (remember he took exception to the term “racket” – a term EoD finds quite fitting), but it’s still probably cheaper than a publicly-funded publicist!
We’ve had contact with Frank and Chila Covington and during the multi-year course in which this contact has occurred, we’ve always found them to be compassionate while simultaneously credible and grounded in their advocacy for Ceci. Our confidence in the credibility of court-generated allegations regarding some families in questionable probate actions isn’t nearly so high.
The Covingtons being cut out of the process in which guardianship of their daughter was removed is indeed problematic. Allison is right: “Unfairness is what the Covington case was all about.”
Jesus C. Garcia is 90 years old, and his memories of serving as an Army infantryman in World War II are as time worn as the shrapnel still lodged in his head from his battle wounds.
And though the American war vet receives disability benefits for his service and his sacrifice, almost half of that money from the last 15 years remains unaccounted for — routed through a stranger selected by the very agency that pays Garcia.
Deemed incapable of managing his own money by the Department of Veterans Affairs, his daughter Erminia Molina serves as her father’s guardian by the appointment of a judge in their hometown of Laredo. But a professional fiduciary picked by the VA regional office in Houston has overseen his assets since 1995.
Molina has been unable to find out what happened to about $600,000 in benefits that Garcia never received from the San Antonio attorney who serves as fiduciary, court records and interviews show.
Across the United States, approximately 122,271 veterans have been judged “incompetent” to manage their funds. Their $3.3 billion in assets are handled by VA-selected fiduciaries: family, friends or strangers screened by the government, according to information the VA provided to the Houston Chronicle. In Texas, 8,261 veterans’ assets are managed by fiduciaries, who can be paid 4 percent of the benefits.
Full Article and Source:
Vet Missing $600,000 in Disability Benefits; VA had Picked Fiduciary in 1995 (TX)
Houston ripoffs of disabled vets went undetected for more than a decade
December 21, 2011 Houston Chronicle By Lise Olsen
Sometimes when she watched her son standing outside his personal care home, Wylma Barnett thought the disabled ex-Marine looked homeless clad in his worn and raggedy clothes, though he had plenty of money in the bank.
The picture seemed wrong, she thought, for a man who had served his country and whose ample assets for the last 20 years were entrusted to a Houston attorney by the Department of Veterans Affairs.
Instead, next month, Joe B. Phillips, 72, and his wife Dorothy, 71, are expected to stand trial for conspiracy to commit fraud and theft in a Houston federal court. They are accused of embezzling more than $2 million from at least 28 disabled veterans, including Barnett’s son, and allegedly carrying out the biggest rip-off ever uncovered in a VA program responsible for about $3.1 billion in disabled veterans’ assets nationwide.
But according to court records reviewed by the Houston Chronicle and interviews with those who investigated the thefts, local veterans lost even more money and the fraud persisted longer than authorities initially reported. Evidence of possible exploitation in Phillips’ own public accountings and actions were overlooked for years.
“All they would have had to do was ask,” Barnett said, referring to the government’s lack of scrutiny. “Ask anybody who had been assigned to Phillips.”
More than two dozen veterans and insurance companies have since filed civil lawsuits against Joe Phillips, who continues to practice law four years after a VA auditor first found evidence of embezzlement.
Phillips declined to comment for this story.
Money missing in 2001
Phillips, a former VA attorney, has worked as a money manager for local veterans since the 1980s. Money went missing from their accounts as early as 2001 – years before the VA’s audit, according to indictments and lawsuits filed in Harris County probate courts.
At least 28 veterans have been compensated by taxpayers for losses estimated at $3,000 to $250,000 each. Twenty won additional settlements from insurance companies. Others are pending. Barnett’s mentally disabled son received a settlement in October.
No one so far has investigated whether Phillips or his wife took more money from disabled veterans who died before the shortfalls were discovered.
A VA audit first found problems with Phillips’ accounts in late 2007.
Bernard Hebinck, a retired U.S. Air Force colonel and attorney who also serves as a VA fiduciary in Houston, said it was the first formal audit by the VA of fiduciary records in this area in about a decade. He and his partner, Kevin Alter, subsequently sued Phillips on behalf of 20 veterans and obtained 18 settlements so far.
“I treat veterans the way I would want to be treated as a veteran – with respect,” Hebinck said.
A VA spokesman declined to comment, citing the pending prosecutions. But officials did say stricter safeguards are in place because of thefts in Houston and elsewhere. Fiduciaries, for example, are now required to provide original bank documents in annual reports.
In responses to lawsuits, Phillips blames the VA for the missing money, claiming auditors and administrators failed to adequately protect veterans’ assets.
Phillips filed for bankruptcy in 2009. But bankruptcy attorneys have been unable to determine where the vets’ money went, aside from gambling debts that Phillips accumulated at the L’Auberge du Lac Casino and the purchase of a Lexus. Despite subpoenas, Phillips has failed to turn over his bank records, claiming a garage fire and a flood destroyed his files.
The evidence of possible theft and mismanagement appeared in reports Phillips submitted annually to probate courts and the VA. Court records show he sometimes failed to properly list veterans’ savings accounts. Some would inexplicably disappear in reports and reappear years later with different balances. He also failed to properly balance veterans’ checkbooks, records show.
Paperwork filed by Phillips also contained more sophisticated elements of fraud, including account balances verified with forged bank officers’ signatures and a confusing assortment of real and fake accounts in Texas and out-of-state, according to records and interviews.
In one case, Phillips turned in documents with the forged signature of an official at a bank where Phillips served on the board of directors.
Caregivers and relatives of veterans whose money was stolen say Phillips was unresponsive, rude or evasive when questioned about expenses or accounts.
Shirley German, whose disabled son relies on a wheelchair, said Phillips often acted like her son’s money belonged to him, resisting requests for unexpected expenses, like house repairs or appliances.
Rose Redding, a caregiver for another veteran, said Phillips was “always rude” and brushed the vet off even when he asked for copies of his bank statements: “He could have spotted (problems). He was never privileged to get that.”
Since October 1998, the VA’s Office of the Inspector General has conducted more than 315 fiduciary fraud investigations, resulting in 132 arrests across the country.
Katrina Eagle, a California attorney who represents veterans, said problems could be prevented if veterans and designated relatives were given more information about their own money.
“It seems so simple to me. The fiduciary (should be) required to provide an accounting to his client – that’s who he serves,” she said.
Chronicle reporter Lindsay Wise contributed to this story.
Hospice racket parallels guardian abuse network
December 17, 2011 Estate of Denial™ By Lou Ann Anderson
Money or other financial benefit is often the motivation for questionable guardianships. While stories of people with assets seeing their individual liberty and property hijacked in this manner abound, Estate of Denial® has long maintained that other individuals with no apparent wealth
are also at risk of being targeted for what we call “headcount value.”
Our column Adult guardianships: how the probate system trumps “unalienable rights” discussed “headcount value” as well as the network of professionals who actively work to identify, qualify and maintain the necessary “incapacitated person” status which generates long-term benefit for the parties involved.
A recent Fort Worth Star-Telegram article describes a similar racket – they probably prefer the
term enterprise – operating in the hospice industry.
Janet Stubbs was grateful when the nursing home recommended hospice care for her Aunt Midge. Although Stubbs knew that her aunt wasn’t dying, the offer of free Medicare-paid hospice visits from a nurse and chaplain, plus an extra weekly bath, was too good to pass up.
Stubbs didn’t know that her aunt, Doris Midge Appling, was admitted to Hospice Care of Kansas during the company’s Summer Sizzle promotion drive, which paid employees as much as $100 a head for referrals, according to the Justice Department. Stubbs also said she had no clue that the nursing-home doctor who referred her aunt for hospice moonlighted as medical director for the hospice company.
Hospice care, once chiefly a charitable cause, has become a growth industry, with $14 billion in revenues, 1,800 for-profit providers and a base of Medicare-covered patients that doubled to 1.1 million from 2000 to 2009.
Compensation based on enrollment numbers, pay to nursing-home doctors who double as hospice medical directors and gifts to the nursing facilities have helped fuel the boom, according to an examination of 1,000 pages of court documents and interviews with more than 45 current and former hospice employees, patients and family members.
“They wanted us to admit, admit, admit,” said Joyce White, a former marketer for Vitas Healthcare, the nation’s largest hospice chain. “All of us competed against each other to make our numbers. You lived or died by your numbers.”
Publicly traded companies like Chemed and Gentiva Health Services have created hospice chains through serial takeovers in the last decade. Hospice buyouts and investments by private-equity firms have also led to boosted enrollments.
Appling, Stubbs’ aunt, is identified as “Patient 11″ in a Justice Department civil fraud complaint against Denver-based HCK Capital Partners and its owner, the Voyager HospiceCare unit of Harden Healthcare. Prosecutors say the company bilked Medicare by paying bonuses to employees and doctors to sign up patients who weren’t dying.
Paying for patient referrals may be illegal. But the laws are “painfully complicated” and loaded with exceptions, said Ryan Stumphauzer, a former federal prosecutor in Miami who helped launch South Florida’s Medicare Fraud Strike Force.
Feds investigate fraud in hospice care, which has ballooned into a $14 billion industry
Peter Waldman/Bloomberg News
December 10, 2011
Guardianships putting thousands of elderly Texans at risk November 3, 2011 HOUSTON CHRONICLE BY LISE OLSEN
Be careful what you wish for…
March 06, 2011 Estate of Denial By Lou Ann Anderson
Here’s a little connect-the-dots action to ponder.
In Texas, House Bill 1292 seeks to amend the existing insurance code to add eating disorders to the list of serious mental illnesses for which some insurers must provide coverage. While understanding that such a disorder can have devastating consequences, Estate of Denial™ sees this bill as opening the door for a new avenue of probate system abuse. We’re neither for or against the bill. This is just a reality of which the bill’s supporters should be aware. This measure additionally provides a new prospective scenario illustrating the unexpected ways in which corrupt probate practices can enter an unsuspecting person’s life.
Liberal use of the term “incapacitation” in conjunction with other conditions (alcoholism, drug abuse, TBI, schizoaffective disorders, etc.) increasingly serves as a legal basis for targeting folks of all ages. Names like Tate, Franklin, Jessich, Ravenscroft, Keenan, Eckwood, Cohen quickly come to mind as cases highlighted on this web site.
From a probate standpoint, classifying eating disorders as serious mental illness will provide another entry point by which guardianships/conservatorships could potentially be used to overtake an individual’s liberty and property. The administrative ease and casualness of process by which a court can strip a person of their rights and property is unknown to much of the general public and perpetually mind-boggling to us with probate system familiarity.
Engagement in today’s political arena shows what appears as a systemic assault on many American liberties previously taken for granted. Probate venues certainly assist in this effort. With that, one can’t help but be reminded of The Communist Takeover Of America – 45 Declared Goals document entered into the Congressional Record in January 1963. A few points seem to have special applicability here:
Something to think about…
Mar 5, 2011 Lou Ann Anderson, Yahoo! Contributor Network
(To read full story click on link)
Longtime TX probate judge dies
February20, 2011 Houston Chronicle by Jessica Faz
Probate judge Gregory presided over high-profile cases
Pat Gregory, a longtime Harris County probate judge who presided over such high-profile cases as the estate of billionaire Howard Hughes, has died. He was 76.
Gregory, a probate judge for more than 26 years, died Feb. 2 of complications that arose after a heart pump was surgically implanted in December, family members said.
His career ended after his 1993 indictment on three charges of filing false tax statements in connection with his use of campaign funds. He denied the charges, saying he had used the funds as personal loans that he intended to repay.
The former chief presiding probate judge for the state of Texas, Gregory eventually pleaded guilty to one count of filing a false tax return. He was sentenced to one year in prison and disbarred.
Contrived probate disputes mirror ‘ambulance chasing’ barracuda actions
January 04, 2011 Estate of Denial By Lou Ann Anderson
“Ambulance chasing” conjures images of attorneys soliciting vulnerable clients during times of despair setting the stage for actions that evolve into nuisance or frivolous lawsuits. This criminal practice, known as barratry, is the generation of profit for legal services by an attorney who stirs up a dispute and encourages lawsuits in order to file a groundless claim. Texas barratry laws largely apply to personal injury cases, but with disputes increasing over wills, trusts and other estate-related actions, is probate the new barratry growth area?
Involuntary Redistribution of Assets (IRA) actions happen as Texans’ property rights and personal liberty are targeted through probate venues or instruments like wills, trusts, guardianships and powers of attorney. Actions are initiated by some combination of attorneys (sometimes with other “professionals”), disgruntled family members and/or wannabe heirs. Legal industry participation is a near constant thus injecting the barratry element.
Estate planning is big business. Probate plundering is an illicit offshoot. Barratrous lawyers frequent venues rich in prospective targets. Speaking engagements along with community involvement at locales like health care facilities, senior centers, churches and civic organizations help when trolling for estate dispute participants.
Manufactured estate disputes occur in short order due to sudden death or a health downtown or they may be drawn out with action awaiting anticipated circumstances or creation of a particular family dynamic.
Disputes are created by filing a claim against an estate. Actions need not be legitimate or credible – a relative feeling slighted or a family connection sensing entitlement is plenty. The term “frivolous lawsuit” is well recognized because suits without merit are known for their destructive capabilities. Probate is no exception.
Settlement of a lawsuit can functionally extort assets from rightful heirs or beneficiaries seeking to cut losses and avoid further litigation. When those assets are shared with participating attorneys, barratry occurs.
Another tactic brings a withholding of estate assets from legitimate heirs or beneficiaries so as to provoke legal action by those rightfully named. The estate attorney then profits by perpetrating and defending a wrongful action.
Litigation, an eye-opening experience, demonstrates how court victories correspond more to legal gamesmanship and professional posturing than issues of right or wrong. While estate planning is always recommended, these cases expose the legal industry’s overstated position of security allegedly gained through “proper estate planning.”
Guardianship abuse is motivated by varying financial incentives, including barratry. Guardianships provide an appealing avenue for barratrous actions by enabling confiscation of a ward’s property, restriction of their individual liberty or both. Questionable cases continually surface with estate funds paid to attorneys and other guardianship personnel routinely an issue.
Attorneys can incite disputes by initiating guardianships they know will be contested. If a ward has assets, an action filed in a friendly court can yield control of assets which then pay for billable hours generated in the guardianship’s defense. Court-appointed guardianships provide the same opportunity only judges choose the legal industry associate receiving the lucrative assignment.
Steal $250,000 from a bank, it’s a criminal act. The same diverted from an estate sends harmed parties to the “pay-to-play” civil court system which is expensive and, for many, cost prohibitive. Whether seeking to recover rightful assets, to defend against a contrived estate claim or to challenge a guardianship, additional disadvantage comes through dependency on pricey legal practitioners whose welfare depends on maintaining good relations with court personnel and opposing counsel more so than with their own clients. Here, all profit except the IRA target.
The legal industry responds to critics citing families’ instigation of endless litigation to justify the appearance of estate plundering.
Probate-related legal actions don’t just affect the “rich.” Estates of $500,000 to $1 million are appealing targets in offering a worthwhile financial pursuit that cannot be cost effectively defended in a civil court action. Many Texans fall into this category – a point not lost on the legal industry though few private citizens recognize this looming threat.
Lawyers and other unethical parties, sometimes with complicity from probate courts, can separate any of us from our property when certain (not that unusual) circumstances occur. No protection from probate plundering currently exists, but addressing contrived estate disputes as barratry actions could impact one aspect of this growing problem.http://www.cbsnews.com/stories/2010/12/23/eveningnews/main7179542.shtml?tag=contentMain;contentBody#comments
CBS News investigative correspondent Sharyl Attkisson reports.
As children of the Depression, Marie and Cliff Long lived frugally and invested wisely. Cliff died in 2003. Madelon and Jenette are Marie's sisters.
Jeanette said her sister had about $1.3 million saved up - enough to last the rest of Marie's life - or so the couple thought.
With Marie in declining health, there were no children. Her daughter died of cancer at age 16, and her son died in Vietnam.
To make decisions on her finances and care, the court appointed a guardian - an agency called "The Sun Valley Group."
First, as Guardian, Sun Valley's owners Peter and Heather Frenette hired themselves to provide Marie's personal care. That way they collected not only guardian fees, but up to $15,000 a month in companion care fees, too.
Read the GAO report on Guardianships
When a Sun Valley worker started a fire in Marie's kitchen, Marie was charged for four employees to "confer" about it. The rate? Up to $105 dollars per hour for each worker.
When another Sun Valley worker locked herself out of Marie's house: $85 dollars an hour for each employee who conferred about that.
Sun Valley found a dozen ways to charge Marie to get her own weekly petty cash. They charged to prepare the cash, to confer about it, to review the status, to draft a letter to the courier, to call the courier, to pay the courier - you get the idea.
To send Long and their worker to a Phoenix Suns basketball game, Sun Valley charged over $1,000 dollars for "research," phone calls, and a limo.
Sun Valley even charged Long $228 to "determine (the) effect (of the game) on (her) mood."
When her sisters complained, Sun Valley hired lawyers, and charged Marie for that, too. Attorneys got $409,000 of Marie's money in just four years.
And Sun Valley walked away with $430,000.
Jeanette says her sister's financial status today is "Zero. Everything's been taken from her."
CBS News wanted to talk to Sun Valley CEO Peter Frenette, so we visited his Phoenix office. He wasn't available.
In writing, Frenette said he can't discuss Marie because of litigation. He did say guardians often "parachute into family battlefields; this surrounding conflict can create extraordinary fees to be incurred."
The court official who appointed Sun Valley in 2005 and an Appeals Judge defended Sun Valley's performance. They said the limo, the grease fire, all the expenses were "reasonable, necessary and for Marie's benefit." The court even blamed Marie's sisters for complaining about it and running up costs.
"We wanted my sister to have good health care," Jeanette said. If that's what run up the cost, then I'm guilty. I'm guilty."
"Then so am I," her sister Madelon added.
Sen. Herb Kohl (D-Wisc.) chairman of the Committee on Aging, says it's a national problem. His Investigators found millions of dollars allegedly squandered or stolen by court-appointed guardians. They say Long's case shows why new laws are needed to protect the vulnerable from their own guardians.
"Unfortunately, nobody told Marie that in Arizona, as the widow of a veteran, she could've gotten a guardian for just $75 a month," Kohl said.
Long is too frail to talk to CBS News now, but she spoke to a newspaper reporter from the Arizona Republic last year.
The reporter asked her, "do you wonder about your money?"
"Yes," Long replied. "But from what I hear there isn't any."
Today, Marie is 89 and now lives on Medicaid at taxpayer expense. Sun Valley withdrew as her guardian twelve days after her money ran out.
December 16, 2010 The Texas Tribune by Emily Ramshaw
Disability rights advocates will file a class-action lawsuit on Monday, alleging that Texas leaders have violated the Americans with Disabiltiies Act by confining some 4,500 Texans with disabilities in nursing homes.
The suit, which will be filed in U.S. District Court in San Antonio, will argue that the individuals have been segregated and not provided with treatment and services they need, according to a press release sent out this afternoon.
Investigation into Guardianship Abuse
December 10, 2010 CBS Evening News with Katie Couric
(To read full story click on link)
A guardian is appointed by the court to "guard" finances and make care decisions for an elderly person who has nobody else to help. Most people think once the court steps in, the person is protected, and safe.
But instead of helping, the guardian drains the person's bank account. What's worse, the court gives its stamp of approval. How could this be happening?
According to GAO investigators, and investigators from the office of Sen. Herb Kohl (D-WI), it's the result of unscrupulous actors; piecemeal regulations from state-to-state; and poor oversight.
Google "Guardianship Abuse" and you'll find some of the horror stories. There are many, from Florida to California. We can assume that many court-appointed guardians do their difficult jobs selflessly and with great ethics. But the evidence indicates some of them don't.
Take the case of a former cab driver who befriended an 87-year old customers with Alzheimer's. The cab driver was also a convicted bank robber. Somehow, he was granted guardianship of the elderly man. He embezzled more than $640,000. He used some of it to pay for exotic dancers and a new Humvee. He's now in prison. The money's gone forever.
Other times, there's no crime involved. No prosecution. But money is quickly, quite legally, drained from an elderly person's account until not a penny is left.
You may conclude the guardian wasn't looking out for anybody but himself.
Watch our special investigation tonight on the CBS Evening News with Katie Couric.
Fiduciary breach puts former TX CPA in prison
December 01, 2010 Department of Justice Press Release
Former CPA Sentenced to Prison for Wire Fraud
For Immediate Release, United States Attorney’s Office Southern District of Texas
Contact: (713) 567-9000
McALLEN, TX—Rodrigo Garcia, 49, of McAllen, Texas, convicted of wire fraud, has been sentenced to prison for abusing his position of trust by taking the money of a paraplegic client via wire transfers from the victim’s bank account for his own use and benefit, United States Attorney José Angel Moreno announced today.
U.S. District Judge Randy Crane sentenced Garcia to 51 months in federal prison to be followed by a three-year term of supervised release at a sentencing hearing held today in federal court in McAllen. Garcia pleaded guilty to one count of wire fraud on July 30, 2010. Judge Crane further ordered Garcia to pay restitution in the amount of $1,218,960.11 which represents the total amount of the victim’s funds that the court found Garcia had used for his own benefit to include $37,000 in wire transfers charged in the indictment.
According to the record of the case, Garcia was a certified public accountant (CPA) in McAllen in 2002, whose business was to provide financial services to his clients. In April 2002, the paraplegic victim hired Garcia to manage his financial affairs after receiving a $3.6 million settlement. In July 2002, the paraplegic victim signed a statutory power of attorney giving Garcia authority to access and conduct financial transactions including withdrawals from his bank account at the victim’s request.
On four occasions in April and July 2005, Garcia approved four wire transfers totaling $37,000 from the victim’s bank account. Two of the wire transfers totaling $22,000 were delivered to the bank account of an auto dealership to purchase a car while $15,000 was wired to the account of an auto restoration business to restore a vehicle for Garcia. These wire transfers were for Garcia’s benefit and made without the knowledge or consent of the victim.
Garcia’s CPA license had been revoked in 2003.
Last week during a hearing, the victim of Garcia’s criminal conduct told the court that Garcia knew he, the victim, did not have legal status in the United States and about the impact Garcia’s conduct has and will have on his ability to support his family and his daily expenses. Today, the court considered the victim’s vulnerability, the substantial impact of Garcia’s criminal conduct on the victim, his family and his life in finding Garcia had abused a position of trust which the court considered in deciding upon the final sentence handed down.
Following last week’s hearing, after the court learned that Garcia had failed to pay any amount of restitution to the victim while out on bond, the court revoked the bond and remanded him to federal custody without bond pending today’s sentencing hearing. Garcia will remain in custody to serve his sentence pending transfer to a Bureau of Prison’s facility to be designated in the near future.
The investigation leading to the charges was conducted by the FBI and prosecuted by Assistant United States Attorney Robert Wells Jr.
The heir to an oil fortune is powerless as lawyers, trustees, judges and guardians determine his fatehttp://www.chron.com/disp/story.mpl/business/energy/7314807.html
A MAZE OF MISTRUST AND FAMILY TRUSTS
Ugo di Portanova is the grandson of multi-millionaire wildcatter Hugh Roy Cullen and his wife, Lillie Cranz Cullen, who died here in the late 1950s.
Sources: Probate court records, Houston Chronicle interviews and coverage, Texas Monthly 1982 and other published accounts.
For more than four decades, multimillionaire oil heir Ugo di Portanova has been all but powerless over his vast fortune.
His three Mercedes-Benzes, his chartered plane trips, his yacht excursions and the rest of his spending are all controlled by a small militia of Harris County probate court guardians, financial trustees, lawyers and judges.
Despite $65 million-plus in assets, di Portanova — described as one of the world's wealthiest "partially incapacitated" men — controls a single credit card that maxes out at $1,000 a month.
Fluent in Italian and English, a poet and patron of the arts, di Portanova has suffered from schizophrenia and has, say those who know him, a distaste for litigation and financial mumbo-jumbo. Though judged unable to manage his money or most personal decisions, he did successfully fight the courts to regain his right to marry, write his own will and control pocket money.
Over the decades, at least $50 million of his inheritance has gone to more than two dozen court-appointed guardians, trustees, attorneys, accountants and bankers - about $4.5 million of which was consumed in the latest yearlong battle that ended only weeks ago. Those estimates are based on the Chronicle's review of accountings, related records and interviews with various participants in the long-running probate case.
Now 74, di Portanova is the grandson of the late Hugh Roy Cullen, a hard-working and savvy Houston-based wildcatter and entrepreneur who became one of the richest men in America by drilling deeper in abandoned fields and striking oil in salt domes and other overlooked corners. Cullen and his wife, considerable contributors to many charitable and artistic causes, made wills that divided their sizable oil interests into various trusts for the benefit of their descendants when they died here in the late 1950s.
Di Portanova was first ruled incompetent in Harris County in 1967 -a decision that came largely at the instigation of his brother, another Cullen heir, years before di Portanova ever arrived in Houston. In fact, he was living in Italy when deemed incapacitated — in absentia and without his knowledge — by a Texas judge who had never met him.
November 9, 2010 ABA Journal By Martha Neil
Responsible for overseeing funds of some veterans for decades, attorney Joe Phillips, 71, allegedly evaded detection for years with the help of doctored records even though his files were supposed to be regularly reviewed and audited, reports the Associated Press. His wife and legal assistant is also accused in the case.
An audit by the Houston office of the U.S. Department of Veterans Affairs identified "incomplete, misleading or inaccurate" records in late 2007.
And a 2008 review determined that there was a $2 million shortfall from 2003 to 2008. However, it wasn't until June of this year that a 26-count federal indictment of the couple resulted. They are charged with conspiracy, tax fraud, misappropriation and related crimes.
Civil suits also are pending, but Phillips, a former VA employee in Houston, is arguing that the government should be held liable because it was required to approve expense payments and audit his books. He has denied that he was involved in any theft or fraud and has filed for bankruptcy to try to protect his assets, the news agency reports.
The full extent of the problem may never be known because records for prior years may not be available, the AP says, relying on information from lawyers.
Although Phillips is innocent unless and until he is proven guilty at a trial now scheduled for April, the mother of one of his claimed victims has already determined what she believes to be an appropriate punishment. And it's not a federal prison sentence:
"I would like for him to be sentenced to wear a sign saying 'I stole from disabled American veterans,' and stand out in front of the VA hospital," Shirley German tells the AP.
Tags: Guardian Abuse, Guardianship, Disabled Veterans, Texas, Disabled American Veteran
Brazoria County authorities are investigating a restraint death of a 16-year-old boy at Daystar, a residential treatment facility for troubled, abused children.
Last Friday, at about 7:34 p.m., Daystar authorities called the Brazoria County Sheriff's Office for medical services after Michael Owens stopped breathing at the Manvel facility, according to a press release issued today.
Owens was taken to Herman Memorial Hospital by ambulance and declared dead upon arrival at the hospital in Houston, which is 30 miles north of Manvel.
The Brazoria County Sheriff's Office is conducting an investigation into the child's death, the news release stated.
Investigators have determined that restraint techniques were used to subdue Owens and his preliminary cause of death is thought to be asphyxiation.
Earlier this year, the Houston Chronicle and the Texas Tribune revealed that workers at Daystar provoked seven developmentally disabled girls into a fight of biting and bruising as staffers laughed, cheered and promised the winners after-school snacks.
The fight was one of more than 250 incidents of confirmed abuse and mistreatment in residential treatment centers during the past two years, based on the Chronicle/Tribune review of state records.
The findings prompted the state to station an on-site monitor, who has since left Daystar and was not at the facility when the death occurred.
Daystar attorney John Carsey told the Texas Tribune he hadn't heard about Friday's incident.
"That's news to me," Carsey said.
Tags: Daystar, Brazoria County, Manvel facility
Attorney assignments allow judges to play favoritesNovember 7, 2010 San Antonio Express-News By Brian Chasnoff
(To read full story click on link)
Local courts for years have ignored a state law requiring judges to appoint lawyers for poor defendants using a rotating list of attorneys. They instead have used erratic methods that funneled a large percentage of cases and taxpayer money to a small percentage of lawyers.
Following the list, known as the “wheel,” is a condition of the Fair Defense Act, a law passed in 2001 in part to bring fairness to appointments. Courts must appoint attorneys from among the next five names on the list in the order in which the names appear.
A state task force pointed out the noncompliance two months ago in a review requested by a local senator. Echoing charges of favoritism in the courts, the review concluded that too many cases were going to too few attorneys.
The review by the Task Force on Indigent Defense did not analyze specific courts.
But a joint investigation by the San Antonio Express-News and WOAI-TV has found that appointments skewed significantly in particular courtrooms, both in the number of cases appointed to certain attorneys and the amount of money they earned, according to data from the Bexar County auditor’s office.
And representing poor defendants can prove lucrative work. The top earner, lawyer Hilda Valadez, earned more than $400,000 in the past three years, hundreds of thousands of dollars more than the average court-appointed attorney.
In at least one courtroom, the inequity appears rooted in cronyism. Attorney Edward Adams, who contributed the most in the past year to the failed re-election campaign of County Court Judge Monica Guerrero, also was appointed the most cases and earned by far the most money in Guerrero’s court in the past three years.
“Cronyism is back,” one respondent told the task force.
Another said: “Too many judges ignore their own rules and appoint as they see fit.”
Since the review, some judges have agreed to change their practice. Others are resisting, calling the task force’s recommendations unrealistic for large dockets filled with defendants needing timely appointments.
Sen. Jeff Wentworth, R-San Antonio, a member of the task force, requested the review. He said courts should not sacrifice a fair appointment process for other concerns.
With Texas - especially Williamson County - as a prime retirement destination, the dark side of guardianships exposed in a new Government Accountability Office (GAO) study, Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors, should be of interest.
While the term conjures an image of a nurturing, protective relationship, guardianship as a status "typically means that the incapacitated person loses basic rights, such as the ability to sign contracts, vote, marry or divorce, buy or sell real estate, or make decisions about medical procedures."
This loss of rights opens many avenues for financial abuse and exploitation. With the U.S. Census Bureau projecting a 60 percent increase in Americans aged 65+ by 2025, it's time people understand the dangers associated with this reduced-rights class of citizenship - realities not addressed by estate planners and other legal industry professionals.
Guardians (also called conservators) can be appointed over a person, their estate or both. Guardianships fall under state jurisdiction usually as a function of probate systems which also oversee wills, trusts and other estate matters. Despite differing program frameworks among states, abuse patterns and oversight shortcomings are easily identifiable.
Filed under Law, Politics
If the circus in Collin County isn’t a big enough argument against one-party government, the scandal brewing in the Tarrant County probate courts should be. I’ve linked to stories here and here about Judge Pat Ferchill. The judge, perhaps as a result of the growing press attention to his penchant for secret ex-parte hearings and favored advocates, recused himself from the Covington case, where a Down Syndrome girl’s parents were removed as guardians because they objected to a group home’s use of psychotropic drugs to sedate her. The motion to re-hear the case then went to his colleague, Judge Steven M. King.
Yesterday, Judge King postponed the hearing scheduled for today. He said it was “because of the election” and that “D Magazine had endorsed Ferchill’s opponent.” Here are the relevant two paragraphs from my editorial in the current issue:Tags: Judge Steven King, Judge Patrick Ferchill, Tarrant County Probate, Guardianship
For Chronicle coverage on Texas probate fees: http://www.chron.com/disp/story.mpl/metropolitan/7258536.html
Federal auditors uncovered hundreds of allegations of physical abuse and mistreatment by guardians of the elderly and disabled in 45 states, including Texas, where they spotlighted mismanagement, courthouse cronyism and illegal use of U.S. veterans' benefits, says a national report released Wednesday.
Stakes are extremely high in guardianship proceedings, a legal process in which judges can declare someone to be mentally incapacitated and transfer rights over all assets and basic life decisions to a court appointee.
The report includes an ongoing dispute about Michael and Jean Kidd, a Richardson couple, ages 67 and 70, who were declared mentally incapacitated and placed in a nursing home after the husband broke his hip last year. "Under the care of court-appointed guardians, their house went into foreclosure, their car was repossessed, their electricity was shut off, and their credit was allowed to deteriorate," says the new report by the Government Accounting Office, an investigating arm of the U.S. Congress.
- Investigation uncovers hundreds of allegations
- Report: Courts fail to oversee the conduct of guardians appointed
- In six of the 20 cases examined, the courts fail to screen the guardian they would appoint
(CNN) -- A federal investigation has uncovered hundreds of allegations of physical and mental abuse and financial exploitation of the elderly, all happening under what is supposed to be the watchful eye of the courts.
In details exclusively sent to CNN in advance of the release of the report, investigators found allegations of this kind of abuse by legal guardians in 45 states and the District of Columbia.
In 20 of the closed cases that the Government Accountability Office examined further, investigators found that these legal guardians stole at least $5.4 million in assets from 158 victims.
In some cases these same guardians abused or physically neglected the people they were supposed to help and protect.
The GAO found there were several problems with these cases that could have been prevented had the court been more vigilant.
Time and time again, in 12 of the 20 -- the majority it examined -- the courts failed to oversee the conduct of the guardian they had appointed.
That means the abuse and financial exploitation was able to continue unobserved, sometimes for years.
In six of the 20 cases examined, the courts failed to screen the guardian they would appoint -- allowing convicted felons and people who demonstrated they were not fiscally responsible in the past to be the sole caretakers for the financial well-being and safety of these victims.
October 23, 2010 The Daily News by Chris Paschenko
(To read full story click on link)
GALVESTON, Texas — A former county social services worker was indicted on a felony theft charge that accuses her of stealing between $20,000 and $100,000 from elderly people in her care, authorities said Friday.
Sylvia Ann Villareal, 44, of Hitchcock, was indicted by a grand jury and arrested Oct. 15 on the second-degree felony charge, authorities said.
Villareal was dismissed March 2 after nearly 15 years on the job, according to information from the county human resources department.
She worked for the county’s guardianship program, one of two such programs statewide, Community Services Director Curtiss Brown said.
Villareal was appointed by Probate Judge Gladys Burwell as a guardian for elderly wards and was responsible for managing their money, Galveston County Criminal District Attorney Kurt Sistrunk said in a statement.
"Judge Burwell, in her normal course of review, noticed some irregularities in the checks that were being written on the accounts of the wards and brought the matter to our attention," Sistrunk said.
Prosecutors began the investigation in February with the assistance of the County Auditor’s Office.
The indictment accuses Villarreal of stealing more than $20,000 but less than $100,000 between June 2007 and April 2009, Sistrunk said.
Sistrunk declined to reveal the specific dollar amount or how many wards were involved.
An indictment is not a guilty verdict. It means a grand jury heard enough evidence to send the case to trial.
Villarreal was released from the county jail on $20,000 bond on the charge of felony theft by a public servant. The second-degree felony is punishable between two and 20 years in prison.
No attorney for Villarreal was listed with the District Clerk’s Office, and there was no public phone listing for her.
This story was brought to you thanks to khou.com's partnership with the Galveston County Daily News.
(To read full story click on link)
Judges here award more than anywhere else in Texas — 302,081 in one case, so far - to attorneys they pick
Harris County probate judges handed out $8.5 million in fees in one year — far more than any other county in Texas — to private, hand-picked lawyers and others tasked with managing the estates of the dead and the lives of the disabled.
County court-at-law judges kicked in another $800,000.
One probate judge has approved payments of $302,081 so far to attorneys involved in a single case: a legal dispute that dates back decades and involves the guardianship of Ugo di Portanova, a disabled globe-trotter and heir to a series of multimillion-dollar oil-funded trusts in Texas.
Those fees, approved by Judge Mike Wood, were the highest awarded in any Texas case in the last year, public records show.
Collectively, 200 county and probate judges statewide signed off on nearly $21 million related to death, guardianship and other disputes in the year ending August 2010, according to a Chronicle analysis of more than 9,500 fees approved by all county and probate judges in Texas.
The Office of Court Administration began collecting electronic reports on fees for the first time last year. The reports stem from an earlier state Supreme Court initiative to boost accountability and counter long-term concerns about judges' alleged favoritism toward fee recipients, who are often attorneys and campaign contributors.
Each year, thousands of people's lives and deaths end up in the hands of probate judges, who wield sweeping power over the liberty and assets of others. Probate fees can be controversial, as they often come from private pocketbooks and can quickly deplete estates or drain resources needed to care for disabled and elderly Texans.
FORT WORTH — A former Dallas municipal judge will serve 60 days in the Tarrant County Jail as a condition of her probation for spending money awarded to a client in a 2003 probate case that she handled while practicing law in Arlington.
A jury had already been seated in Criminal District Court No. 3 when Tiffany Lewis pleaded guilty Tuesday morning to misapplication of fiduciary property. Lewis used a $58,000 probate settlement awarded to a Dallas woman and her daughter to buy a motorcycle for her baby’s father, cover office expenses, and cover bad checks in other clients’ accounts, Tarrant County prosecutor Lori Varnell said.
Lewis, 41, was sentenced to 10 years’ probation by visiting Judge David Cleveland, who ordered her to serve 60 days in jail and repay the money.
Lewis, who was disbarred in 2005, was also forbidden to hold herself out as an attorney or to act as a fiduciary, someone who handles money for other people.
The Texas Bar Association had stripped Lewis of her license to practice law in April 2005 because of the probate case. But Tarrant County prosecutors learned that she was continuing to represent clients in Tarrant County, Varnell said.
Lewis was also serving as a Dallas municipal judge. Municipal judges are not required to be attorneys.
But Dallas authorities began trying to remove her because she lived in Arlington, not in Dallas, as required, and had lied about her residence, Varnell said. She resigned her judicial position in 2007 in lieu of disciplinary action by the State Commission on Judicial Conduct.
Her disbarment was based on a Dallas woman’s 2004 complaint to the bar that the attorney had taken $58,000 of her Dallas County probate settlement.
Lewis took most of the money in cash, which could not be traced, Varnell said. It took nearly five years for a forensic accountant to track the money from the probate account to Lewis’ Bedford bank to her expenditures, which depleted the account in 134 days, Varnell said.
Varnell said she and co-counsel Sabrina Sabin were prepared to try the case but accepted the plea to get restitution for the victims. "They’re very poor people who don’t have a lot of means," Varnell said. "She stole from the weakest members of our society."
Defense attorney Anthony Randall acknowledged that Lewis did not pay her clients "in a timely fashion" but said she intended to do so.
Randall said Lewis, who is a single mother, took the last-minute plea to ensure that she would remain free to raise her daughter. She will serve her 60-day jail term on weekends and, as required by probation rules, seek a job, he said.
"She does have restitution to pay back, and she will be doing that," Randall said.
Blame the Voters for Bad Judges
October 20, 2010 D Magazine: by Wick Allison(To read full story click on link)
Straight-ticket voting by Democrats and Republicans is filling the local bench with petty tyrants, crooks, and incompetents.
In Dallas County, I blame the Democrats. In Tarrant and Collin counties, I blame the Republicans. In total, I blame every single reader who ever has voted the straight party line. For good measure, I’ll even blame the Libertarians, although they seem like innocent sorts.
In 2008, 60 percent of all votes cast in Dallas County were straight-ticket Democratic. (Republicans, you were almost as bad: 39 percent of all votes were straight-ticket GOP.) In 2006, by virtue of the straight-ticket voters, Democrats swept into office an entire slate. I suppose that would be cause for celebration for a Democrat, if being a Democrat were all that mattered. But it is not.
In Tarrant County, it is the GOP that dominates with straight-ticket voting. For County Probate Court No. 2, they elected Pat Ferchill. This judge appears to have turned his probate court into a racket, holding ex parte hearings with favored attorneys, terminating guardianship rights of parents over their disabled children, and taking advantage of the elderly. Fort Worth Weekly and the Texas Tribune have done an excellent job of tracking the judge’s suspect rulings.
When no Democrat ran against Ferchill, long-time Fort Worth attorney Bob Shelton took up the cause and put his name on the ballot as a Libertarian. Republicans, do Fort Worth a favor. Vote for the Libertarian.
September 29, 2010 FW Weekly By Jeff Prince
Anyone interested in our recent cover stories about the Tarrant County probate court’s powerful and sometimes heavy-handed role in guardianship issues (“In Whose Best Interest?” Sept. 8, 2010, and “Rethinking Guardianship,” May 19, 2010) might want to check out this report from Fox 4 News reporter Lori Barager:
Back in 2008, I did my first story on guardianship issues, focusing on Kathie Seidel’s fight to hang on to her disabled daughter (“Saving Katia,” July 2, 2008.)
It’s good that other media outlets are spotlighting this matter.
A tight-knit network of judges, attorneys, professional social workers, banks, and nursing homes makes a formidable adversary for local families fighting to hang on to loved ones.
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Bexar County will be better served by electing a new judge to preside over Probate Court No. 2.
We recommend Democrat Barbara Scharf-Zeldes for the probate court bench.
A 1993 graduate of St. Mary's University School of Law, Scharf-Zeldes is a staff attorney for Group Legal Services, which provides legal counsel to San Antonio police officers and firefighters
A certified mediator, Scharf-Zeldes will bring a much need fresh outlook to this busy court that handles wills, guardianships, property condemnation and mental health cases.
The incumbent, Republican Tom Rickhoff, a longtime Bexar County officeholder, should have informed voters during his re-election bid four years ago that he planned to give up the mental health docket after the election.
(To read full story click on link)
Filed under Law
Has guardianship become a racket over in Tarrant County? That is the implication of Jeff Prince’s excellent report in the recent Fort Worth Weekly about the case of a partially senile (and rich) woman who found herself under examination in Judge Pat Ferchill’s court. Ferchill was also the judge who held the secret ex parte hearing in the Cunningham case.
September 16, 2010 The Texas Tribune: By Emily Ramshaw
(To read full story click on link)
Scherry Levi with her mentally disabled nephew Deartis Preston in Preston's home in Bay City.
When Doris Preston died, the former schoolteacher left behind a small estate, no will and a single heir: her adopted son, Deartis, a mentally disabled 52-year-old she’d raised in her Denton home.
Doris’ close-knit siblings say they rallied around their nephew like they had for a lifetime, bringing him to Bay City to live with the family and using part of the inheritance to purchase a house for him two blocks away. But when they went to probate court to iron out the details of the estate, their plans disintegrated.
A Denton County probate judge determined Deartis needed a court-appointed guardian and attorney to advocate for his interests. Those appointees argued that the money left in the names of Doris’ siblings should rightfully belong to Deartis, and that her siblings were making poor financial decisions on his behalf.
In the five years of legal wrangling since Doris’ death, the court has approved payments of nearly $450,000 to these appointed officials, private attorneys for the family say, depleting the amount of money left to care for Deartis.
Filed under Law
(To read full story click on link)
Emily Ramshaw over at Texas Tribune tells a heart-rending story about Frank and Chila Covington’s loss of guardianship of their Down Syndrome daughter because they did not want her to receive psychotropic drugs in a group home. Texas law makes it easy for the state to quash parental rights, and in this case the judge did it in a secret ex parte hearing. So far the legal battle to appeal the judge’s decision has cost the Covingtons $55,000.
This is the nightmare of every parent of a disabled child. Allisonette #3 is Down Syndrome, and I feel just like the Covingtons: she is a gift from God. The idea that a psychiatrist or “mental health expert” can use the court system to harm a child and to separate her from a loving family is nauseating.
I have two questions for Ramshaw about the story. She doesn’t name the Tarrant County probate judge who made the decision and who has now recused himself. She does mention that several complaints have been filed against him. So, Emily, who is he? And why the free pass?
September 15, 2010 The Texas Tribune : By Emily Ramshaw
(To read full story click on link)http://www.texastribune.org/texas-state-agencies/aging-and-disability-services/families-lose-guardianship-in-secret-hearings/
But when the Covingtons argued with a group home provider who insisted that Ceci needed psychotropic medication, they lost their daughter entirely. After the provider accused the Covingtons of “cruelty,” a Tarrant County judge called a secret hearing and removed the parents’ guardianship, barring them from seeing the child they’d spent four decades raising.
“Ex parte,” or emergency, removal hearings have been legal in Texas guardianship cases for nearly two decades. They're designed to rescue incapacitated people in immediate danger. But in some courts around the state, advocates say, they’re being used to remedy even routine disagreements, effectively denying parents, adult children or other guardians the chance to defend themselves before their loved ones are seized.
Probate judges and court-appointed attorneys contend that they must protect those who can’t protect themselves, and that some cases demand drastic and immediate action. They say guardians who are removed can appeal and get reinstated if they’ve been wronged. “The Legislature has said we’re out here to protect the individual, not to protect the guardian,” says Travis County Probate Judge Guy Herman, the presiding probate judge in Texas. “What you have going on here is people who have done something wrong coming down to the Legislature, going to the newspaper, instead of trying their case in a court of law. In essence, they’re trying to intimidate judges.”
Removed guardians and elder law experts say they’ve been forced to seek outside help because they don’t stand a chance in the courtroom. They say the probate system’s close-knit web of judges, court-appointed attorneys and nonprofit guardianship companies is impenetrable and stacked against families with no legal experience and few financial resources.
“The law was set up for kids you find lying in their feces, or beaten — not for kids who have been loved and cared for their entire lives,” says Frank Covington, a 65-year-old engineering consultant who has had to take on extra hours to pay the mounting legal fees in his fight to get his daughter back. “But it’s being abused by the court.”
State Sen. Jane Nelson, R-Flower Mound, says she heard “troubling” testimony about a lack of transparency in the guardianship process at a recent legislative hearing, including one mother who “was not notified of her own son’s death.” She says she’s looking into changing the law on ex parte hearings when lawmakers reconvene in Austin in January — a move that would face staunch opposition from probate judges and some disability rights advocates who fought for tougher abuse prevention tools in the mid-1990s.
(To read full story click on link)
Before long, the woman with the sweet smile would be under oath, confused and crying, fielding questions from attorneys and the judge who will determine whether she’s competent enough to care for herself.
“I have done nothing wrong,” Mary would say again and again.
It’s true. Mary’s only offense was outliving two husbands and finding herself on the dusk side of life with sporadic episodes of dementia and no close relatives. Money isn’t a problem. She’s got plenty. On the other hand, money is a problem. Other people seem to want it more than she does.
Mary’s financial acumen is nil. Utility bills went unpaid and checks uncashed after her husband died in 2003. Her home fell into disrepair even though her estate currently tops $2 million. She took in stray cats that soon multiplied. She loaned money to acquaintances who didn’t repay it.
Friends stepped up and tried to help manage her affairs, but eventually Tarrant County Adult Protective Services showed up to investigate. A caseworker notified the court, prompting a long series of hearings. Since all involved seemed to have Mary’s interests at heart, surely something would work out. Instead, clear battle lines have been drawn, over the months, between her friends on one hand and a powerful, tight-knit network of judges, attorneys, government agencies, banks, professional guardians, and care providers on the other.
Tarrant County’s probate court system has evolved over the past couple of decades in response to a growing number of elderly people outliving their health, loved ones, wits, and, in many cases, their money. This safety net has done wonders in improving people’s living conditions.
But as the system has grown, so have the complaints — not just locally but nationwide. Families are stepping forward to accuse the court system of needlessly taking control of elderly people and their money, isolating them from loved ones, and prematurely putting them in nursing homes and hospices — actions that sometimes seem to benefit the system players more than the elderly (“Rethinking Guardianship,” May 19, 2010). The old adage that you can’t fight city hall is even more apt when you’re taking on a judicial system. Several people interviewed for this story were so worried about the power of the courts to injure their lives and reputations that they asked for their full names to be withheld.
Mary’s court-appointed attorney Sharon Gabert told Fort Worth Weekly the court’s guardianship program doesn’t troll for clients; it responds to the concerns of social workers, she said.
The court “didn’t go looking for Mary,” she said. “She was referred by Adult Protective Services.”
But who notified that agency?
“I reported it,” Fort Worth attorney Steve Katten said.
Katten’s law firm specializes in estate planning, wills, and trusts. He handled Mary’s estate after her husband died. But problems developed after Katten and the man to whom Mary gave her power of attorney disagreed on where to park her money. Katten preferred downtown Fort Worth’s Wells Fargo Bank, which manages many of the guardianship estates in Tarrant County.
Katten is also board president of Guardianship Services Inc., a pseudo-governmental group of paid and volunteer guardians who act as surrogate decision-makers for incapacitated people. Tarrant County taxpayers are the major contributor to the agency’s $1.1 million budget.
One of Katten’s fellow GSI board members is Kathy Christoffel — who also happens to be senior vice president at Wells Fargo Bank and the current trustee of Mary’s management trust.
Sep 06, 2010, FOX 4 News, Heather Hays
(To read full story click on link)
DALLAS - In this edition of "Whatever Happened To," Heather Hays updates one of the most asked about stories FOX 4 has ever aired -- an elderly Dallas couple, Michael and Jean Kidd, and their emotional homecoming, after battling the state for their freedom.
July 21, 2010 AMERICAN-STATESMAN STAFF By Corrie MacLaggan
The father of a disabled man is suing the Austin State Supported Living Center two years after his son was violently sexually assaulted in a community shower at the institution, according to the lawsuit.
The son, a resident of the facility for people with mental disabilities, has autism, epilepsy and hearing impairment and is unable to speak, the lawsuit says. Because of those conditions, he was supposed to have a staff member in his immediate presence 24 hours a day, the suit says.
But on July 19, 2008 , the then-23-year-old was left unattended, and a fellow resident of the facility rammed a blunt object, believed to be a toilet plunger, into his rectum, the court document says.
"He was found by the staff lying on the floor, bleeding heavily, with his insides (intestines; bowels) hanging below his knees," says the lawsuit, filed last week in state District Court in Travis County.
He was rushed to the hospital with internal injuries, the suit says.
The lawsuit alleges that staff members "egregiously breached their duty of supervision."
"He was never to be left unattended or alone, let alone in the immediate presence of a known, mentally ill, and violent assailant, unguarded, unprotected, and vulnerable," the lawsuit says.
Allison Lowery , a spokeswoman for the Department of Aging and Disability Services , declined to comment on the case because it involves pending litigation.
No one has been charged in the case, which is under investigation, said Austin police spokeswoman Veneza Aguiñaga .
The accused assailant is named as a defendant in the suit, as are the state agencies that oversee the living center.
The American-Statesman has a policy against naming victims of sexual assault, and the newspaper is not naming the suspect because he has mental disabilities and has not been charged.
Texas' 13 living centers are under scrutiny from the U.S. Department of Justice, which in 2008 reported that they fail to protect residents from harm. Independent monitors are surveying the facilities as part of a 2009 settlement between Texas and the Justice Department.
The victim is still at the living center because his family cannot afford to move him elsewhere, said Stephen Schaefer , a lawyer representing the victim and his father."He is still having a rough time," Schaefer said. "He has been greatly affected by this tragedy.
Contact: Margaret Patterson - (210) 826-7800
Between the years 2000 and 2040, the number of Texans aged 65 and over is expected to increase from two million to seven million, representing 16 percent of the total Texas population.
In addition to Texas' aging population, the 2006 American Community Survey conducted by the US Census found that approximately 15 percent of Texans had one or more disabilities. That number will increase as the population ages, placing even more demands on the Department of Aging and Disability Services (DADS) and Adult Protective Services (APS).
DADS is responsible for providing access to long-term services and support to Texans who are aging or disabled, while APS's mission is to protect elderly and disabled adults from abuse, neglect and exploitation.
The Senate Committee on Jurisprudence, which I chair, recently heard testimony concerning the state's guardianship program implemented by DADS and APS. The hearing was in response to Lt. Governor David Dewhurst's interim charge, which asked the committee to study the efficiency and effectiveness of the guardianship program.
The program has been in the headlines lately as the result of various allegations by Texans, including claims of abuse or neglect within state-run facilities; improper revocation of guardianship status; mistaken determination of incapacity; abuse within the court system; and the mishandling of a ward's estate.
One widely publicized case documented an elderly couple allegedly forced into state custody after an APS investigation led to a judge's determination that they were incapacitated. As a result, the couple lost control of their home, their finances and, ultimately, their lives. This particular case illustrated an increasingly common claim made against the state guardianship program, that it lacks protection for the ward and the ward's estate.
Under the current state guardianship program, APS is charged with investigating allegations of abuse, neglect and exploitation to determine if a public guardian is necessary. Should APS determine that a guardian is appropriate for the situation, APS may refer the case to the DADS guardianship program.
After the referral, APS assists DADS with the process by providing details of the ward's assessment and serving as a resource during probate proceedings.
In the course of providing protective services to elderly and/or disabled Texans, APS may file emergency orders for protective services. These legal actions are presented to statutory probate courts or other courts with probate jurisdiction.
In Texas, guardians may be family members and friends, private professional guardians, private guardianship programs, county-operated guardianship programs and DADS guardianship program.
Guardianship responsibilities may include managing finances, making medical decisions and arranging for ward placement and personal care. In 2009, APS filed 453 referrals to DADS for guardianship. Currently, the DADS guardianship program is serving 1,213 Texans.
Since any abuse or injustice within the state guardianship program is unacceptable, this issue requires further examination by the Texas Legislature to ensure that elderly and disabled Texans are adequately protected.
Texas lawyer, wife accused of stealing from vets
June 29, 2010 Houston Chronicle By Brian Rogers
(To read full story click on link)
A Houston lawyer and his wife appeared in federal court Tuesday, accused of stealing more than $2 million from military veterans.
Joe Phillips, 71, and Dorothy Phillips, 70, who managed her husband’s small law office, appeared before U.S. Magistrate Judge Nancy Johnson, charged with conspiracy, misappropriation by a fiduciary, making materially false statements to a federal agency and tax fraud, according to federal officials.
Phillips, a former employee of the U.S. Department of Veterans Affairs in Houston, is accused of stealing from mentally incompetent veterans.
In his capacity as their attorney, Phillips opened and maintained bank accounts to receive benefits for the veterans and pay their expenses, according to prosecutors.
Investigators allege the couple transferred money into joint bank accounts for their personal use for six years, beginning January 2003.
Angela Dodge, a spokeswoman for the Department of Justice in Houston, said the couple did not have a lawyer when arraigned. Bail was set at $100,000 each.
Calls to the couple’s office and home were not returned late Tuesday.
Dallas County probate judge trips raise concerns
July 28, 2010 Dallas Morning News By Kevin Krause/Reporter
(To read full story click on link)
It's another tough budget year for Dallas County.
So naturally, travel expenses are a topic of controversy.
She says the judges shouldn't be using public money to travel to meetings/conferences when they will be leaving office at the end of the year.
June 24, 2010 The Guardian Blog by David Boyles
(To read full story click on link)
Officials in South Texas have formed a task force to fight elder abuse. Reported crimes against the elderly were up 15% in Texas last year, and the task force will attempt to fight this problem by focusing on training for nursing home staff and financial exploitation of the elderly.
The task force is made up of law enforcement and Family and Protective Services officials, in addition to lawmakers and experts on aging issues. It will focus on developing recommendations for policymakers to protect seniors, both those living alone and those living in nursing homes and assisted living facilities.
One of the areas the task force will focus on is guidelines for employee training at nursing homes and assisted living facilities. This is due to the fact that the increase in elder abuse cases is mostly due to incidents of physical neglect by caretakers and family members. Ann Cortez, regional director of Adult Protective Services, says that of the 235 cases of elder abuse opened in Hidalgo County in May, the majority were neglect by caretakers.
Financial exploitation is another focus of the task force. This is a serious problem because most cases of financial exploitation go unreported and are perpetrated by those closest to the victims, such as family members and nursing home employees.
For more information on caretaker neglect due to lack of training, visit the Nursing Home Advocates' Untrained Workers information page.
Houston Law Firm May Have to Repay $1M
in Legal Fees OK’d By Judge
June 6, 2008 ABA Journal By Martha Neil
A prominent Texas law firm reportedly may have to repay up to $1 million in legal fees in a trust litigation matter, even though they were authorized by a state probate judge.
Judge Mike Wood was wrong to award $500,000 in fees to Crain Caton & James, a Texas appeals court held yesterday in a "brutal" 46-page opinion (PDF), reports the Houston Chronicle. Among the reasons: A trustee represented by the law firm pursued litigation against Robert Alpert, the man who established the trust, against the wishes of the beneficiaries (his sons), which is now forbidden by state law.
A total of more than $1 million in legal fees that the judge authorized is at stake in the matter, as well as another $1 million in payments to the trustee, attorney Mark Riley, the newspaper reports. Plus, the appellate court said the lower court should consider requiring Riley to reimburse Alpert and his sons for the legal fees they paid to defend baseless claims.
"For years families bogged down in Harris County probate courts have accused judges of bleeding estates of tens of thousands of dollars to pay high-priced lawyers for unnecessary work," Chronicle writes.
A moment later, she is beaming, telling a visitor how her mother and father are still alive and well. But they’re not. Her parents are dead. Her husband too. She has no family. If not for the volunteer guardian pushing her wheelchair, the old woman wouldn’t have much of anybody to look out for her.
Volunteer guardian Sara Lee has looked after her for seven years, visiting the nursing home at least once a week and on holidays, serving as an advocate, sounding board, and friend.
“I watch very closely what’s going on with her,” Lee said. “I check her charts. I make sure she gets the care she needs. I keep an eye on her — and they know it.”
Lee volunteers at Guardianship Services Inc., a Fort Worth-based nonprofit group that represents vulnerable residents in Tarrant County to ensure they receive social services, medical care, and financial management. The nonprofit, celebrating its 25th anniversary, is legal guardian for 425 people and money manager for 245. Those numbers have been steadily increasing. More than 100 volunteers such as Lee have stepped in to help the elderly or otherwise incapacitated clients who become GSI’s legal wards.
Putting legal power over a person into a stranger’s hands is supposedly considered a last resort by the court system. On its web site, GSI says it gets involved only when “all other alternatives have been tried” and “no family member or friend is willing, able, or suitable to serve in that capacity.”
But several local families say that what began as a volunteer program to help the old and vulnerable has evolved into a close-knit alliance of probate judges, attorneys, care providers, and quasi-governmental nonprofit employees. These factions, while doing good in many cases, sometimes rip families apart without giving relatives so much as the courtesy of being present at the hearings where such decisions are made.
“The system is rigged, and the family has nowhere to turn,” said Kathie Seidel, one of a handful of local residents who accuse the probate court and GSI of removing loved ones from their homes unnecessarily.
The residents describe being replaced as guardians in court hearings without being given a chance to defend themselves — and then being required to put up $10,000 bonds in order to be allowed to appeal the decision. Overturning a court’s decision on guardianship can become a maze of dead ends. Families don’t know where to turn, other than to legislators who might change the laws — and that’s been a slow-moving ship.
Volunteer Sara Lee visits this GSI client once a week and on holidays at a Fort Worth nursing home.
The families believe the system involves too-cozy relationships between judges, attorneys, caseworkers, and others and is rife with intimidation and retaliatory behavior designed to shut out families that might get in the way.
Attorneys donate money to the election campaigns of probate judges who assign those same attorneys to guardianship cases. Attorneys also donate money to GSI, which in turn shepherds clients to nursing homes and other facilities that want to keep their beds filled. The nonprofit’s funding is based on its number of clients. Its board of directors is mostly composed of attorneys and has included nursing home representatives in the past.
“Guardianship Services is supposed to be a service,” said Debby Valdez, a San Antonio-based activist who is helping families fight back through legislative action. “When it becomes a business, it’s no longer about the ward, it’s about the money.”
May 12, 2010 WFAA by MONIKA DIAZhttp://www.wfaa.com/news/texas-news/Legislative-panel-hears-guardianship-pleas-93648714.html
North Texas families testified at a State Senate committee hearing in Austin on Wednesday, hoping to change the Texas guardianship system.
They came to the Health and Human Services Committee hearing clutching photos of their loved ones and wearing yellow ribbons — a symbol of their fight.
Sharon Richardson's mother, Earnestine Starks, is living at a nursing home. The Mesquite woman lost guardianship last year after having several disputes with the facility's staff over her mother's care.
"She was the best mother that you could ask for," Richardson said. "She does not deserve to be treated this way."
A Tarrant County judge revoked the guardianship in an ex-parte hearing. The legal maneuver lets a judge issue an order or verdict without all parties being present.
May 9, 2010 WFAA by MONIKA DIAZ
Families ripped apart in guardianship court hearings plan to take their fight to the State Capitol. They call themselves victims of the state's system.
Kathie Seidel is one of four North Texas families planning to testify at a May 12 Senate committee hearing on Health and Human Services.
Four years ago, she lost guardianship of her adopted daughter, Katia. Seidel was declared unfit to take care of her. The 24-year-old, who has mental health problems, is living at a group home.
"I haven't seen my daughter in more than a year on a holiday," Seidel said. "Her brother is suffering. They are both adopted and he misses her. It's like we really don't have the family any more."
The family's pain is one Sharon Richardson knows all too well. Richardson's guardianship over her mother, Ernestine Starks, was revoked nearly a year ago.
Starks is living at a nursing home.
"We have limited access to our mother, so it has been really hard on the family," Richardson said. "It's just not the same."
In both cases, guardianship was removed in an ex-parte hearing; that's when a judge issues an order or verdict without all the parties involved being present.
"I was removed in a secret hearing, and didn't even know it was happening," Seidel said.
Viewpoint: Senate Committee Studying Texas Guardianship Laws
Over the past several months, I have been contacted by Texans whose guardianship status over their incapacitated family members has been revoked against their will. Attempts to regain guardianship have been met with roadblocks in our court system. Some guardians have been denied access to their family members.
As a result, I suggested to Lt. Gov. David Dewhurst that the Senate Committee on Jurisprudence study the issue.
Dewhurst responded by asking the Jurisprudence Committee to study the guardianship program implemented by the Department of Aging and Disability Services and the Department of Adult Protective Services.
The committee will focus its attention on the efficiency and effectiveness of each agency's program, the relationship between the two agencies, the appropriate rights for parents and whether clients and their assets are adequately protected.
In addition to studying these guardianship programs, the Jurisprudence Committee is evaluating the voluntary relative placement process of children placed in homes of relatives were neither parent is present.
In 2009, the Legislature passed Senate Bill 1598, allowing parents in crisis to voluntarily give authority to an adult caregiver, such as a grandparent, an aunt or an adult sibling. I supported the bill because I believed it offered parents a cost-effective means of giving authority to a caregiver without an expensive court proceeding.
(To read full story click on link)
Michelle Cohen is petrified about her upcoming court hearing. For weeks, she's been frantically calling attorneys in hopes of preventing a decision she fears will change her life.
A bank is asking a court to appoint a guardian for Cohen, who is mentally ill and who has a trust fund at the bank. But what Cohen wants is to be left alone. To live how and where she pleases. To spend her trust fund money on whatever she wants. To be like other people – those without a mental illness.
"I'm fully competent to handle my own affairs," said Cohen, a Dallas resident who turns 41 this month. "Nothing good will happen if I have a guardian. I'll probably wind up in a group home. I have a lot to fear about that."
Cohen's situation exemplifies the tug of war that exists between letting people with mental illness live independent lives, while also trying to protect them. Her case came to the attention of DMN Problem Solver after she contacted the newspaper.
"Guardianship is the most restrictive thing that can happen in an outpatient setting to a person with mental illness. It can help when people need it," said Matt Roberts, executive director of the National Alliance on Mental Illnesses in Texas. "It's difficult to get a guardian in Texas, and it's probably not bad that it is difficult."
December 21, 2009 Galveston Bureau By John Suayan
Judge Gladys Burwell
GALVESTON - A Galveston man has accused a probate judge of not responding to his requests to junk a claim on a building he is trying to repair, recent court documents say.
Jack Alexander Demack's lawsuit against Galveston County Probate Court Judge Gladys Burwell says the judge ignored his motions for a hearing on the merits of an estate claim on the Demack & Co. Building in Galveston made by the estate of Mildred Demack.
"Such claim was disputed by the plaintiff who filed several motions to dispose of this meritless claim by the estate," the original petition says.
Jack A. Demack alleges the judge is delaying any ruling because of a personal relationship she has with the estate's attorney, the suit says.
The suit was filed Dec. 10 in Galveston County Court No. 3.
(To read full story click on link)
A former Dallas municipal court judge pled guilty this morning in Tarrant County to charges that she pocketed tens of thousands of dollars from a client in a probate case.
Tiffany Lewis, who was disbarred several years ago, received 10 years probation, but must serve 60 days in jail as a condition of the plea agreement, wrote Tarrant County prosecutor Lori Varnell in an email.
According to Varnell, Lewis received a scathing lecture from visiting judge David Cleveland who told her that she was not to represent herself as an attorney since she is no longer one. She also wrote that Cleveland told Lewis that "someone put their trust in you, and you should hang your head in shame."
Disabled dentist in Texas tries to regain her independence
Tuesday, August 25, 2009 From The El Paso Times
(To read full story click on link)
EL PASO, Texas -- Monica Yepez, a prominent El Paso dentist who is now paralyzed, may be getting closer to retaking control of her life.
Yepez last week agreed to retain a lawyer who advocates for the restoration of rights to disabled people.
According to court records, attorney Constance Wannamaker is representing her. Wannamaker is the regional managing attorney for Advocacy Incorporated, a nonprofit mandated by the state to fight for the rights of disadvantaged people.
Wannamaker confirmed that she is representing Yepez, but declined further comment. A status hearing for Yepez, who became a ward of the state three years ago, is scheduled for Sept. 29.
Yepez, 44, says she is seeking her independence because she still struggles to pay bills and is finding out that just about everyone who says they want to help would rather take advantage of her. She said she was misled by lawyers, contractors, friends and people claiming to be a friend of a friend.
"People have come out of everywhere wanting to help, but they really want to help themselves," she said. "I think I'm ready to run my own life."
Yepez, who lives on an $11,000-a-month disability insurance check, met with different lawyers and rejected them all before settling on Wannamaker.
"We can't keep mistrusting everybody. At some point we need to start trusting people again," said her father, Alonso Yepez.
Yepez, who was a pediatric dentist for 13 years, has been a ward of the state since 2006. A medical procedure at Del Sol Medical Center in 2006 left her paralyzed. According to court records, she went to the hospital because she was dehydrated. Fluids that were supposed to help her instead caused her brain to swell, resulting in paraplegia.
At that time, she was expected to die, her father said.
"That is what everyone told us and what everyone expected," he said. "I think that is why people thought they could take advantage of her. But look at her, she is getting better every day."
Yepez, who was a well-known University of Texas at El Paso cheerleader in the mid-1980s, has regained her ability to speak, the use of her hands and her memory.
In July, she wrote a letter to Mayor John Cook, asking if there was anything he could do to help her end her guardianship. He replied that he could not, but asked to meet her. She recently went to his office.
Aging in America: Family struggles with Guardianship issues
(To read full story click on link)
FORT WORTH — Earnestine Starks took pride in her grandson's graduation this past summer, but it wasn't long before that joy turned into heartache.
"I never expected anything like this — never in my life," said her daughter, Linda Bolton.
Three of Starks' children sat down with News 8 after a visit to see their mother at a Fort Worth nursing home ended with three trespassing warnings. The staff ordered them to leave the property.
"You go from just trying to see your mother to you can never see your mother again," Bolton said.
Days later, another daughter, Sharon Richardson, found out she was no longer her mother's guardian.
"I don't know how a court can award guardianship in one week and then revoke it the next week," Richardson said.
Court documents show that a Tarrant County judge revoked Richardson's guardianship on July 8. According to a letter filed in court by the nursing home, Richardson made allegations of abuse against the facility.
She also wanted staff to re-evaluate her mother, who suffers from dementia and delusions, and move her from a secured to an unsecured unit.
Doctors disagreed with Richardson's request.
"My mother did not want to go back to the facility; she said she would not go back in there and did not like the facility and did not like how she was being treated," Richardson said.
TX board to review certification claim by Kidds’ guardian Questions Remain for Kidd’s Guardian
December 10, 2009 KDFW/FOX 4 By Becky Oliver
(To read full story click on link)
DALLAS - A state board will conduct a special meeting Monday after FOX 4 raised questions about an accountant who swore on court records he was a certified guardian in Texas.
Collin County Judge Weldon Copeland appointed Michael Taylor of Greenville to serve as the Guardian of the Estate of Eugene and Michael Kidd. They are the Richardson couple that was stripped of their rights and placed in a nursing home against their will.
The Kidds were away from their home for nearly one year after the state determined they couldn’t take care of themselves or their finances. After FOX 4 aired their story, they regained their freedom and returned home but it has been a tough adjustment. They have had to rely on the help of total strangers and neighbors.
The Kidds say the system that was supposed to protect them and their assets failed miserably. They still have no accounting of their finances. Michael Taylor was appointed Guardian of the Estate in June 2009. He is still in charge of their money until the house is refinanced.
“We need a financial guardian in place until we get the house taken care of,” said Tim Taylor, the Kidd’s pro bono attorney.
“ The mortgage is really the big one,” her said.
Attorney Tim Taylor says the Kidds were paying their bills until the state took over in January. Judge Copeland then appointed Michael Taylor in June. Tim Taylor says the Kidd’s mortgage was not paid for months, leaving their credit a mess.
“All of those problems have arisen in the past year while the guardianship was in place,” Tim Taylor said.
Michael Taylor is still refusing to talk to FOX 4 but we have learned he is now applying to become a certified guardian.
September 9, 2009 Bell County Legal News Examiner By Lou Ann Anderson
(To read full story click on link)
The story of Michael and Jean Kidd, the elderly Richardson, TX, couple whose lives were hijacked via state-sponsored guardianships is generating much discussion in political and advocacy circles.
The tale exposed by KDFW/FOX 4 reporter Becky Oliver details how the Kidds were referred to Texas Adult Protective Services upon Michael's hospitalization in a Plano medical facility for a broken hip that subsequently required surgery and resulted in Jean spending extended time in the hospital waiting room. The next developments in which a government bureaucracy proclaimed this couple "incapacitated" so as to take physical and financial control of them, their assets and then impose the most drastic of "remedies" for their own protection defies everything for which our country allegedly stands.
Few argue the power of pictures and the KDFW/FOX 4 video in which both Michael and Jean Kidd describe events of the last 10 months does not support the state's contention that these people are mentally inept. Jean Kidd suffers from memory losses and acknowledges that some help might be in order, but she rightly questions "Having someone come in and take over the whole ball of wax and say you will do what I say, and you have no control over your own life…” Yet that's exactly what happened.
Based on a state recommendation, Collin County Probate Judge Weldon Copeland approved the Kidds' guardianships which resulted in their relocation to a Pilot Point nursing home. As a side note, one more extremity of the Kidds' treatment is shown as despite Collin County being the sixth largest Texas county (along with a bastion of economic development), the couple was relocated to a nursing home in neighboring Denton County, 50+ miles from their home.
Texas Senator Jane Nelson, head of the Department of Aging and Disability Services (DADS) legislative oversight committee, was quoted saying "I could not believe that what I was seeing was taking place in this country,” and "I think we have way overstepped our bounds.”
Readers of web sites like EstateofDenial.com and ElderAbuseHelp.org know these cases happen routinely. Traditional media sources with reporters like Becky Oliver are beginning to appropriately recognize Involuntary Redistribution of Assets (IRA) actions as a threat to American personal liberty and property rights increasingly emanating from probate system abuse and/or probate instrument (wills, trusts, guardianships, powers of attorney) misuse.
Senator Nelson's desire for explanations is commendable and the public - especially those Texans who have experienced a form of probate abuse - stand ready to assist with that goal.
Guardianship abuse activist Brenda Durant recently sent an e-mail warning her neighbors of the threat at hand:
Please read the news articles about a Texas couple. Disgracefully, they are not the only ones who have found that one of the largest challenges we face is "finding a safe place in which to grow old.
Department of Justice / Office of Public Affairs
The facilities are state-owned and operated residential facilities that serve nearly 5,000 persons with developmental disabilities. The agreement, which will be subject to the approval of the U.S. District Court in Austin, Texas, addresses concerns about conditions and practices at the facilities, which led the Department to investigate potential violations of the Civil Rights of Institutionalized Persons Act (CRIPA).
"The Justice Department is committed to protecting the fundamental rights of all our citizens. This agreement reflects that principle by protecting the civil rights of some of Texas’s most vulnerable residents," said Attorney General Eric Holder.
The state of Texas fully cooperated with the Justice Department’s investigation. Under the terms of the settlement agreement, the state will work to ensure that facility residents are safe and that they receive the care and services necessary to meet their individualized needs. Specifically, the state has agreed to undertake a variety of measures, including: providing a safe and humane environment with zero tolerance for abuse or neglect of residents; providing adequate medical care, nursing services, and nutritional and physical support, including therapy and communication support; providing adequate psychological and behavioral services and psychiatric care; providing adequate habilitation; providing adequate integrated protections, services, treatments, and supports; and, ensuring that residents are free from undue bodily restraint. The state will also ensure that each resident is served in a setting that is as well integrated into the community as possible, as required by the Americans with Disabilities Act and the U.S. Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999).
Under the terms of the agreement, Texas will fund and work with an independent monitor, who will oversee the state’s compliance with the agreement. The agreement contemplates that the state will reach compliance within five years, but it will continue until compliance is achieved.
"We commend the state for working with the Department to ensure that persons living in these institutions receive the protection, care, and services that they need and deserve, and that they have expanded opportunities to live their lives in more community-integrated settings, consistent with federal law," said Loretta King, Acting Assistant Attorney General for Civil Rights.
The remedial agreement represents a negotiated resolution of the Justice Department’s investigation that would not have been possible without the cooperation and commitment of the Governor of Texas, Rick Perry, the Texas Department of Aging and Disability Services, the Texas Attorney General’s Office and the Texas Legislature.
The agreement comes near the tenth anniversary of the Olmstead decision, which held that unjustified institutional isolation of individuals with disabilities is a form of unlawful discrimination under the Americans With Disabilities Act. As part of the commemoration of this anniversary, President Obama launched the "Year of Community Living," a new effort aimed at providing opportunities for community living, and for full inclusion in the life of our nation, to individuals with disabilities. The Justice Department also is strengthening its partnership with the U.S. Department of Health and Human Services to ensure vigorous enforcement of the laws that protect the civil rights of individuals with disabilities.
CRIPA authorizes the Attorney General to investigate conditions in certain institutions owned or operated by, or on behalf of, state or local governments. These institutions include nursing homes, residential facilities serving persons with developmental disabilities, mental health facilities, jails, prisons, and juvenile correction facilities. CRIPA’s focus is on systemic deficiencies rather than individual, isolated problems.
More information about the Civil Rights Division of the Justice Department, and the laws it enforces, is available at http://www.usdoj.gov/crt.
Abuse At Texas Institutions Is Beyond 'Fight Club'
March 18, 2009 NPR by Joseph Shapiro
(Click on link below to read the full story)
Six staff members at Corpus Christi State School in Texas have been charged with staging a late-night "fight-club" using residents with mental retardation. The abuse was discovered accidentally, when one of the workers lost his cell phone, which contained videos of more than a year of the fights.
The fights became known only because one of the workers lost his cell phone. It was found and turned over to an off-duty police officer. The phone had videos of more than a year of staged late-night fights, some as recent as this past January.
[He] was retained to file an application for a guardianship in probate court. [He] did not return many of the client’s phone calls and generally failed to keep her properly informed about the matter. Richey promised the client a partial refund of his fee, but failed to follow through on that promise.
In the second matter, [he] was retained to file a Medicaid application and handle related issues. For a lengthy period, Richey did not respond to the client’s letters or otherwise communicate with the client.
Surprisingly, the suspension was fully probated!
See Disciplinary Actions, 71 Tex. B.J. 910, 912 (2008).
(Click on link below to read the full story)
DENTON, Texas — For more than a century, thousands of mentally disabled Americans were isolated from society, sometimes for life, by being confined to huge public hospitals.
In at least one place, they still are.
Texas has more mentally disabled patients in institutions than any other state, and the federal government has concluded that the state’s care system is stubbornly out of step with modern mental health practices.
Critics allege that Texas remains stuck in an era when the mentally disabled were hidden away in large, impersonal facilities far from relatives and communities.
“In Texas, it’s like a time warp,” said Jeff Garrison-Tate, an advocate who wants to close the 13 hospitals called “state schools” and move patients into group homes.
For the third time in three years, the criticism has attracted the attention of the Justice Department, which on Tuesday accused Texas of violating residents’ constitutional rights to proper care.
Investigators found that dozens of patients died in the last year from preventable conditions, and officials declared that the number of injuries was “disturbingly high.”
In addition, hundreds of documents reviewed by The Associated Press show that some patients have been neglected, beaten, sexually abused or even killed by caretakers. Inspection reports also describe filthy rooms and unsanitary kitchens.
‘Institution capital of America’
Many of the nation’s mental hospitals were first built in the 1800s, when they were often called insane asylums. But by the 1960s, most experts concluded that patients fared better in smaller, community-based settings.
The American Association on Intellectual and Developmental Disabilities says large care facilities — usually those with at least 16 residents — “enforce an unnatural, isolated, and regimented lifestyle that is not appropriate or necessary.”
Because of those concerns, eight states have abolished large institutions for the mentally disabled. Another 13 states closed most of their largest facilities, leaving just one open in each state.
But Texas has remained “the institution capital of America,” said Charlie Lakin, director of the Research and Training Center on Community Living at the University of Minnesota.
The 13 facilities in Texas house nearly 5,000 residents — more than six times the national average.
On a per-capita basis, Texas has 20.4 people per 100,000 in large institutions, Lakin said. The national average is 12.2 people.
Other states with large populations such as New York and California — which have rates of 11.2 and 7.5 people, respectively — rely far less on large institutions.
Federal law requires the mentally disabled to be treated in “the most integrated setting” possible — a factor that led to the Justice Department rebuke of Texas
(Click on link below to read the full story)
... Share, For the past four years, Haseeb's mother, Farhat Chishty, has been engaged
in a public battle with the state to get her son out of the state's care ('The ...
... Or so it would seem. For the last couple years, Haseeb's mother, Farhat Chishty,
has been in negotiations with the state to bring her son home. ...
Farhat Chishty pushes her son's wheelchair into the shade of an oak tree and
sits down with a sigh. ... None of this surprises Farhat Chishty. ...
- By Jesse Hyde on 07-30-08
Last year, Jesse Hyde wrote several stories for the Dallas Observer and Unfair
Park about Farhat Chishty's quest... Welcome to blogs ...
Mark Graham Haseeb Chishty On Tuesday night, Farhat Chishty got the news: The
US Department of Justice, after months of investigating, had... ...
... the beginning DADS has fabricated false stories about what happened to Haseeb and
successfully covered up his abuse for years and years," Farhat Chishty said ...
August 17, 2008 The Dallas Morning News By EMILY RAMSHAW
(Click on link below to read the full story)
AUSTIN – One in three Texas foster children has been diagnosed with mental illness and prescribed mind-altering drugs, including some that the federal government has not approved for juveniles, state records show.
Evan Kitchens, 12, was prescribed several drugs while in state care. The autistic boy’s mom says his condition worsened. He’s back home in Bandera. Many of these drugs are prescribed by doctors who have a financial stake in pharmaceutical companies’ success, a Dallas Morning News investigation has found. Dozens of physicians who treat children in state custody supplement their salaries with tens of thousands of dollars in consulting and speakers’ fees, and they use drug company grants to fund their research projects.
Accepting this money is not illegal, nor is it frowned upon in most medical circles. Many of the state’s leading medical experts receive income or grants from drug companies, money that has funded groundbreaking scientific advances. And financial ties between doctors and pharmaceutical firms are frequently self-reported by physicians on their Web sites, conference programs and journal articles.
Kristie Garcia, 23, visits her brother’s grave in Kerrville. Christening ‘Mikie’ Garcia had four drugs in his bloodstream when he died in foster care. But while the psychiatric drugs given to foster children cost millions of taxpayer dollars a year, it’s hard to know how much the doctors prescribing them are making from pharmaceutical companies. Texas, like most states, does not require disclosure.
The most prominent researchers can easily make $15,000 a year from each drug company they consult for, plus fees for speaking engagements that top $1,500 an event, according to financial disclosure forms some researchers are required to file because they work for state universities. Research grants often exceed $100,000, these records show.
Texas health officials say the overwhelming majority of these doctors have dedicated their careers to improving the mental health of foster kids, who have far higher rates of mental illness than the average child. They sacrifice time that could be spent on private-insurance patients, for whom doctors say they are paid more.
Saving Katia: An adoptive mom loses custody of her troubled daughter
Wednesday, July 02, 2008 FWWeekly By Jeff Prince
Adopting orphans from foreign countries comes with risk, but Kathie Seidel was willing to roll the dice. She was hurting. She wanted to be a mother again. For more than 20 years she had showered love on her only child, Brian, and his accidental death in 1989 had sent her reeling.
“Everything in my life was an adventure with Brian,” she said. “He was such a joy, and I wanted to have that again. Parenting was the best thing I ever did with my life.”
Unable to bear more children, she decided to become an adoptive mother. At 40 and single, she wasn’t the preferred candidate for American adoption agencies, so she looked overseas. Her first adopted child came from Russia in 1993. Four-year-old Greg arrived with problems and charms. Hyperactive and diagnosed with attention deficit disorder, he was also intelligent, sweet, and loving. Seidel was crazy about him; he adapted well to his new home, and they quickly bonded.
But this time around, she decided against raising an only child. Greg would get a sibling. The two adoptions together would cost $32,000, but Seidel’s career in computer software sales was thriving, and she could afford it. She chose a girl who had lived the first eight years of her life in a Russian orphanage.
On the outside, Katia was slender, pretty, and dark-eyed. On the inside, she was a time bomb.
“Katia came, and all hell broke loose,” Seidel said.
The girl bullied her new brother. She was autistic and slow to develop. Epileptic seizures appeared to have caused mild brain damage. And she was later diagnosed with attachment disorder, a behavioral problem associated with neglected or abused infants who miss out on being held, rocked, baby-talked, nourished, and otherwise loved in their first 18 months. These children have difficulty bonding with adoptive families and can exhibit destructive outbursts, known as rages, along with other socially awkward behaviors, including cruelty to siblings and pets, lying, and food hoarding, and often have difficulty establishing relationships with peers.
Seidel soon realized the girl was going to demand much of her time and resources, but she was up for the challenge. An award-winning volunteer at social service agencies, she’d earned a master’s degree in special education and had taught emotionally disturbed students for years.
“Katia came to the right place when she came to me,” Seidel said.
As it turns out, knowledge, experience, love, and determination don’t guarantee rosy outcomes. Seidel’s life turned upside-down. These days, she finds herself frazzled, heartsore, and broke.
“My retirement money has been wiped out,” she said.
While Katia’s condition certainly played a role in those problems, Seidel said her biggest obstacle has been overcoming what she and others call a fractured, underfunded, overwhelmed, and vindictive system that is supposed to provide services to people with cognitive disabilities in Texas. She’s spent thousands of dollars on attorneys trying to fight court and government actions that have replaced her as Katia’s legal guardian and moved the girl to a succession of institutions and group homes.
“If you buck the system, they put your kid in an institution,” Seidel said.
Local officials hesitate to discuss Katia’s case, citing confidentiality issues, but they say Seidel wasn’t cooperative and that the girl is doing better after being removed from her home.
Tarrant County’s guardianship system, which deals with children, the elderly, and those not mentally capable of representing themselves, is considered among the state’s best. But the staff is overseeing 1,300 guardianship cases with limited resources, and some clients can be volatile. Robert Gieb, an attorney appointed to represent Katia, described Seidel as likely to torpedo most situations.
“She’s convinced it’s her way or the highway, and she doesn’t like anybody who disagrees with her,” he said.
Seidel said she’s just fighting for her daughter against a stacked deck of judges, court investigators, attorneys, and agencies working to squash parents who demand services and attention. An expert in the field of attachment disorder is questioning how Katia’s case was handled. Other parents of mentally challenged kids describe a system that pits parents against officials in court battles in which everyone loses.
“What happened to Kathie and her daughter is wrong, ” said Michelle Dooley, whose son was also ordered by a local judge to be institutionalized. After his release, she moved him to another city. “I will never have my son back in Tarrant County, because I don’t like the politics they play here.”
June 27, 2008 AMERICAN-STATESMAN STAFF By Tony Plohetski
(Click on link below to read the full story)
Sunday, December 10, 2006 — Long before Laura Ellis? mind failed, the retired government worker reassured one of her closest relatives that an Austin lawyer she had trusted for years would settle her estate after she died.
Ellis, the frugal widow of a retired U.S. Army sergeant, didn?t tell niece Margie Hensley the specifics of her will, which divided at least $550,000 equally among her loved ones, her late husband?s family and her lawyer?s legal fees.
And Hensley didn?t pry.
After Ellis died in 1999, years passed before Hensley and other family members figured out that attorney Terry Erwin Stork hadn't sold her property and was instead letting Ellis' home in San Antonio sit empty while driving her well-kept 1995 Buick LeSabre to disrepair, according to a lawsuit the family later filed against Stork.
And they didn't know that Stork had used some of Ellis' money to add to his collection of rare china and siphoned more than $120,000 to pay heirs of another estate he was handling, the lawsuit and Travis County prosecutors said.
Stork systematically mismanaged or stole from three estates worth more than $800,000 over two decades, according to prosecutors and court records. Each time, elderly people with no living children had chosen him to divide their belongings among organizations and loved ones who usually had no idea they had an inheritance.
In Texas, writing a will and picking someone to carry out your final wishes doesn't guarantee that the family homestead or your great-grandmother's wedding ring will get to the person it was meant for.
An Austin American-Statesman review has found that state laws make it alarmingly easy for the executor of a will — usually a family member, friend or lawyer — to steal or squander what people often spent a lifetime building, frequently with little chance of getting caught. State probate laws don't ensure that a deceased person's assets actually get to heirs — or require executors to tell the heirs they're named in a will.
Probate judges and lawyers in every major Texas county tell horror stories of families and friendships splitting apart amid accusations of estate theft or mismanagement.
Last year, a Tulsa, Okla., orthodontist sued his brother, who had been named executor of his parents' San Antonio estate, accusing him of buying a limousine, BMW, a yacht and South Padre Island property with money that didn't belong to him. The accused brother died earlier this year before the case was settled, an official said.
An Austin woman sued an accountant responsible for dividing her husband's $4 million estate after he died in a helicopter crash, accusing him of funneling nearly $2 million into a business venture without her permission. She won the suit in 2001, but the executor was granted a new trial after claiming he wasn't given time to respond to the accusations. The estate still hasn't been settled, but the business was sold and the money was recovered and given to the widow.
(Click on link below to read the full story)
For years families bogged down in Harris County probate courts have accused judges of bleeding estates of tens of thousands of dollars to pay high-priced lawyers for unnecessary work.
On Thursday, a Houston appeals court ruled that probate Judge Mike Wood improperly awarded what may turn out to be more than $2 million in fees to a trustee and his lawyers over the objections of a wealthy father who set up three trusts for his sons.
The trustee, lawyer Mark Riley, had sued the father, Robert Alpert, accusing him of stock dealings that cost the trust money.
The appeals court decision may be most painful for the prominent law firm of Crain Caton & James, which represented Riley in the suit and may have to pay back more than $1 million in fees that Wood authorized.
Wood has said the fact that many years ago he was a member of that firm is irrelevant.
It was the second rebuke of Wood in the last two months for his handling of the case. In April a visiting judge ordered Wood recused from a related lawsuit after hearing a jury member in this case testify that Wood came into the jury room after the trial was over and expressed his contempt of Alpert to the jury.
The appeals court was brutal in its 46-page opinion. It ruled for a variety of reasons that Wood was wrong to grant a judgment of $1.9 million against Alpert while ordering the trusts to pay about $500,000 in fees to Crain Caton for representing Riley.
Among the errors, said the court, were these:
•Wood was wrong to rule that Alpert had breached his duty to the trust. As the person who put the money into the trust, the court said, he owed no duty as to how the trust was managed. This is a widely acknowledged principle of trusts. Donors put money into a trust and give up control of it partly so they will not be liable for how it is handled.
The typical nasty dispute in probate court is among family members squabbling over their shares of the inheritance.
This one is different. For one thing, nobody died. Alpert set up trusts for his two sons, who were then minors.
The suit isn't among family members. It was filed nine years ago by the trustee, Mark Riley, a lawyer who had worked for Alpert but was fired. Riley accused Alpert of interfering with his work as an independent trustee and of improperly using the trusts as a tax dodge.
Alpert's attorney Bobbie Bayless says records show that Wood's old firm, Crain Caton & James, has been paid more than $1.1 million from the trust to represent Riley in his suit against Alpert.
When you add in more lawyers, an auditor, a receiver, an accounting firm and others, Riley has paid out more than $2 million from the trust with Wood's approval.
Meanwhile, said Bayless, the sons haven't received anything from the trust since 2002, though the trust was intended to pay for their college expenses during that time.
Harris County has four probate judges, who respect each other's territory.
But Alpert has become a man with a mission. At one level it is to beat Wood. At another, he says, it is to improve the probate system for all Texans.
So, Alpert persuaded Sen. Jeff Wentworth, R-San Antonio, who chairs the Senate Jurisprudence Committee, to carry legislation taking recusal motions out of the clubby hands of other local probate judges.
Wentworth recalled that Wood testified during a committee hearing on the matter, opposing any changes in the current law.
"Then he made a big deal out of leaving the room while others testified" so that he wouldn't be influenced by their criticisms if they should appear before him, recalled Wentworth.
"But his wife (Harris County District Judge Sharolyn Wood) stayed in the room and took notes, so you knew she would tell him everything the witnesses said about him," said Wentworth.
Wentworth pushed through a bill with two important changes. It requires that the judge who hears the recusal motion be the regional administrative judge, as is the case for other judges, instead of the presiding probate judge. And it provides that a probate judge cannot hear a recusal motion regarding another probate judge in the same county.
Two weeks ago Alpert tried a third time to get Wood recused. This time it was in front of retired County Court-at-Law Judge Lisa Burkhalter of Lufkin.
This time he won.
Burkhalter apparently was especially swayed by the testimony of Cynthia Szepe, a juror in the trial I wrote about three years ago.
Szepe said Wood came into the jury room after the verdict was rendered, finding against Alpert on a number of questions (which are under appeal) but also finding that Riley had breached his fiduciary duty to the sons.
She said Wood "made somewhat hostile remarks to us indicating his anger at some of our answers and his opinion that our result was incorrect, proceeded to tell us his opinions about Mr. Alpert, and then left just as abruptly as he had come in."
She said Wood showed "his especially strong dislike of Mr. Alpert," calling him "just a rich guy who would do anything to win."
She said she was "shocked to learn that the judge not only overruled our findings that Mr. Riley has breached his fiduciary duties, but even reappointed Mr. Riley trustee of the Alpert Trusts. This is particularly disturbing since the evidence was clear on the fact that Mr. Riley put his own interests above the interests of the trusts and completely ignored the beneficiaries of the trusts."
Wood did not return a call Tuesday seeking his comments on the recusal.
(Click on link below to read the full story)
A disabled client of a Texas law firm is reportedly feeling more secure after his counsel won a recusal motion that required the judge in his case to step aside. Meanwhile, the judge has now recused herself from all 60 of the cases that had been on her docket involving the law firm that represents this client.
Although Judge Yvonne Rodriguez, who sits in probate court in El Paso County, denied having any prejudice against attorney Terry Hammond or his law firm, she signed an order yesterday "removing herself from all cases involving the Hammond Townsend Allala law firm," writes the El Paso Times. This sweeping recusal had been sought by Hammond, the newspaper notes. Another judge granted late last year Hammond's motion seeking Rodriguez' recusal in the case of Juan Carlos Hurtado.
December 2007 US Observer By Lou Ann Anderson
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Grave robbers. Tomb raiders. Cronies who plunder and rape estates. These are characterizations used to describe experiences with the Texas probate system. Guardianships, trusts and wills are vehicles commonly used to perpetrate Involuntary Redistribution of Assets (IRA) actions. Trusts and wills can lead to modern day grave robbing, guardianships can allow looting of an individual’s assets during their lifetime.
It can happen outside a legal venue or with full oversight of the courts. As people get older or incapacitated, the potential for IRA targeting increases. IRA practitioners can be a known, trusted family member or friend or a stranger who works their way into a person’s life gaining their confidence along the way. It can involve lawyers, accountants, “professional” administrators or guardians and others.
People knowledgeable of the Texas probate business tell how making a living off the extraction of estate assets is an organized industry. How tragic to realize a lifetime spent accumulating assets and then clearly designating their final distribution can position one’s rightful heirs as targets for Involuntary Redistribution of Assets practitioners. Incapacitation or death should not signal “open season” on assets. It should not mean that when a person can no longer speak for him/herself, their wishes should be disregarded with the fruits of their labor awarded to parties unconstrained by ethics and adept at manipulating our legal system.
More than a dozen years after the Texas Supreme Court demanded the disclosure of fees ordered paid by probate judges to court-appointed attorneys, the corruption-fighting measure has been ignored by some of the state's biggest counties, a Houston Chronicle investigation has found.
The law requires that court clerks report every fee of $500 or more awarded by a judge.
At least $1.8 million in probate court-ordered payments went unreported from 2003 to 2005 or were awarded to people who were not identified by name, based on the Chronicle's review.
After several court corruption scandals, the Texas Supreme Court enacted the rule in 1994 to fight cronyism and favoritism. The court ordered county clerks to file monthly reports to spotlight and limit a judge's power to order excessive fees to lawyer friends.
But the Chronicle found that clerks in six of the state's most populated counties — Travis, Bexar, El Paso, Hidalgo and Galveston — had failed to fully follow the rule in recent years, based on reports filed with the Office of Court Administration. (The OCA has not yet provided the Chronicle with requested reports from Denton County, but an office spokesman in Austin says those reports have been filed with the OCA.)
Texas probate judges have sweeping power to take money out of private savings to pay attorneys in cases involving wills, guardianships, trusts and related matters.
Though the public picks up the tab for the poorest, most payments come from savings and inheritances.
Perry ''Bit" Whatley, 84, a former Baytown refinery worker and lifelong Texan, spent his final days in self-imposed exile, a fugitive from a more than two-year-old fight with the state probate courts.
Whatley was living in Arizona when he died, but it was not where he wanted to be, away from his home, cut off from his family and his $2 million fortune.
It was an unlikely, but perhaps unavoidable, end for the retired machinist, a frugal man who had wisely invested his savings in Humble Oil, which became Exxon, then Exxon Mobil. The investment made him a millionaire nearly twice over, and yet for 20 years after his retirement he lived a simple life in a simple Baytown bungalow until last summer, when he fled the jurisdiction of Harris County Probate Court.
(Click on link below to read the full story) http://www.chron.com/disp/story.mpl/metropolitan/4915326.html
If the judge has the wrong motives, you are going to have problems,'' says William C. McCulloch, Harris County's senior probate judge. He said one reason he uses very few lawyers - about 10 got more than 60 percent of the fees in his court - is because he thinks others overcharge.
A Houston Chronicle investigation of hundreds of records and thousands of court-ordered payments, as well as interviews with judges and lawyers, found evidence of questionable billings and favoritism in Texas probate courts — with the most troubling examples in Harris County.
The Chronicle documented cases in which probate judges allowed appointees to charge more than $200 an hour for nonlegal work, including selling cars, visiting pawnshops and arranging to get the lawn mowed.
Earlier this year, one Harris County judge approved paying $1,000 in fees to a lawyer for attending her ward's funeral and burial.
In several complex cases, judges approved unusually high fees as well as questionable deals and expenditures, the newspaper found.
Statewide, 2,000 lawyers report they primarily practice probate law. But, according to a Chronicle analysis of approved court fees over three years, a handful of attorneys handled the most lucrative probate court deals.
The Texas Code of Judicial Conduct says judges should avoid "favoritism and nepotism." Jurists are further instructed to avoid regularly conducting business with those likely to appear in their court.
Yet the Chronicle found top probate-court appointees in Texas included a judge's son, ex-probate judges and ex-court employees, judges' campaign treasurers, judges' close friends, former law firms and investment partners.
Statewide, many judges agree that their biggest appointments go to a handful of attorneys. But several said that by using a small, well-known group of appointees, they can better protect vulnerable individuals and families who seek help in their courts.
The Texas Code of Judicial Conduct does not spell out what kind of favoritism is prohibited. Though judges agree they cannot appoint their own wives or children, the rules on other relationships are less clear. Review comes only if a judge receives a rare formal complaint.
In the past decade, only one sitting probate judge has been disciplined for appointing friends or family, Probate Judge Don R. Windle of Denton County, who was reprimanded last year for appointing his wife and his investment partner.
Lawyers and accountants who do probate work depend on judges to assign them cases that will pay substantial fees, sometimes hundreds of thousands of dollars. And probate judges rely on many of those same lawyers and accountants to financially support their campaigns when it's time to run for re-election.
It's where the grieving, the embittered and sometimes the unscrupulous seek to settle inheritance issues, where the disabled and the mentally ill venture to find protection.
But it's also where some Texans claim they're getting ripped off.
Judge compromised impartiality, panel says
September 18, 2006 The Dallas Morning News By KEVIN KRAUSE
(Click on link below to read the full story)
September 18, 2006 The Dallas Morning News By KEVIN KRAUSE
Denton County: He's reprimanded for advancing interests of 2
Denton County's probate judge compromised his impartiality by using his judicial office to advance the interests of one of his former investigators, whom he married, and a former Denton school board president who is his business partner, the State Commission on Judicial Conduct has ruled.
Judge Don Windle, 58, was given a public reprimand by the commission – the highest sanction against a judge the commission can issue.
During the 10-month investigation that the commission said was prompted by stories in The Dallas Morning News, Judge Windle provided commissioners with "false and misleading information," the report stated. Judge Windle said on Monday that he never tried to intentionally mislead commissioners.
The commission ruled in a four-page report that Judge Windle's impartiality was compromised by his relationships with Beverly McClure, now his ex-wife, and business associate Rick Woolfolk – connections first detailed by The News last year.
August 16, 2006 The Dallas Morning News By Lee Hancock
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The Gothic tragedy that reporter Lee Hancock unfurled in The Dallas Morning News this week plays like a Swiss Avenue version of a Hollywood noir classic. Frail, faded beauty queen Mary Ellen Bendtsen, trapped by her own dowager-empress vanity and grandiose fantasies, fell prey before her death to a pair of grifters who appear to have conned her heirs out of an Old East Dallas mansion moldering and crumbling like Miss Havisham's wedding cake. Anybody who asks, "Whatever happened to Mary Ellen Bendtsen?" had better sit down and have a stiff drink before the bumpy telling. As Hollywood-florid as the Bendtsen saga is, the dilemma in this remarkable story is …
Heirs of 2 sisters found: Oklahoma cousin to contest will that named caretakers beneficiaries
December 28, 2006 The Dallas Morning News By Brandon Formby
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When the Christmastime letters stopped coming from Denton, LaJoyce Ice figured her cousins had gotten sick. In her 80s and on an oxygen tank, the Oklahoma woman didn’t have a lot of ways to track down Mildred Erle and Helen Veatch, who were in their 90s and lived hundreds of miles away.
But she figured if something were terribly wrong or the women died, someone would let her know.
So when a genealogy guru from Denton called last month, Ms. Ice was surprised to learn that Helen Veatch died in 2001 and Erle Veatch died in July. She said she was more surprised to learn that some of the officials appointed by the court to look after the women and their estate were named beneficiaries in Erle Veatch’s will and apparently had no knowledge that the women had living relatives.
“I was actually very, very shocked,” Ms. Ice said this week from her home in Broken Arrow, Okla.
Ms. Ice, her sister, her niece and nephew filed court papers in Denton County last week contesting Erle Veatch’s will.
The Dallas Morning News reported last month that among the 10 beneficiaries in the will were Denton County Probate Judge Don Windle, who presided over the Veatchs’ probate case; Beverly McClure, Ms. Veatch’s court-appointed guardian and Judge Windle’s ex-wife; Duane Coker, a court-appointed attorney who represented Ms. Veatch’s interests; and Roy Anderson, court-appointed guardian of the Veatch estate and Judge Windle’s personal accountant.
November 27, 2006 Dallas Morning News
Dallas Morning News Opinion
A judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.". –Texas Code of Judicial Conduct, Canon 2, Section B
"11-27-06 -- In eight lawyerly canons, the Texas Code of Judicial Conduct outlines basic ethical guidelines for our state's judges, from justices of the peace to justices on our highest courts. . . . That includes Denton County Probate Court Judge Don Windle, although he apparently doesn't see it that way. His disregard of these standards is breathtaking. . . . As Dallas Morning News reporters Kevin Krause and Brandon Formby revealed, the issue is Judge Windle's handling of the elderly Veatch sisters, Mildred Erle and Helen, and their joint estate, worth nearly $825,000. . . . Probate courts typically preside over cases involving those unable to care for themselves and their estates, mental health and custodial issues and guardianships. . . . Told that neither Veatch sister was able to manage their assets, Judge Windle placed them under guardianships in his court, moved them to a nursing home and restricted access to them. . . . And that might have been fine, except for this: When Mildred Erle followed her sister into death last summer at age 95, her will – rewritten less than a year into her guardianship – left a large amount of the estate to Judge Windle, his court or people he assigned to manage the estate. Among the new beneficiaries? The judge's former wife and his personal accountant. Legal? Possibly. Ethical? You be the judge.
Judge’s circle benefits from court work
May 26, 2005 The Dallas Morning News By Kevin Krause
Denton probate jurist says he goes by qualifications, not personal ties
In Denton County Probate Court, it helps to know Judge Don Windle. His court has authorized more than $2.4 million in fees to a small group of lawyers and other professionals whom Judge Windle has repeatedly tapped for work on estates, trusts and guardianships over the last 11 years. Among them are the judge’s business partners as well as some longtime friends, including one who prepares his taxes and one who handles his legal affairs.
Besides the Montgomery County case, in part involving a court reporter who worked for 18 years without proper credentials, the Washington, D.C.-based watchdog group also has spotlighted a Harris County case in which a probate judge has remained on the bench despite an alleged conflict of interest.
Judicial Watch Southwest Director Russell Verney said the two cases exemplify flaws that have developed in what he called the "ingrown" Texas probate system over the past 20 years.
He characterized the system as marred by judicial favoritism toward particular law firms, which results in assets earmarked for heirs being wasted in unnecessary legal services and fees.
Verney said a case involving the Herbert Clinton Sisco estate in Conroe, along with the Alpert Trusts probate dispute in Harris County Probate Court No. 2, prompted his organization to decide to take a closer look at the workings of the overall probate system in Texas.
Judicial Watch officials will examine records from a cross section of the state's hundreds of probate courts and also will look into the judicial administration of trusts and guardianships in Texas. The work will continue through 2004.
The study will be the first of its type for the national organization, although it has conducted probes into other legal matters such as the counting of ballots in the 2000 presidential vote in Florida.
Verney announced the Texas probate project in a letter to state Probate Court No. 1 Judge Steve King of Fort Worth, who presides over the state's statutory probate courts. King likely would play a role in consideration of whatever reforms Judicial Watch eventually seeks.
The local case spotlighted by the organization involves Conroe businessman Jon Sisco, Montgomery County Court-at-law No. 3 Judge Mason Martin and his court recorder, Joann Bergh.
The case involves Sisco's attempt to gain control of his father's estate in the face of claims by a court-appointed administrator that proceeds also should go to other potential heirs. Verney said all such heirs have acknowledged Sisco's standing as sole beneficiary, but the lawyer in charge of the estate, appointed by Martin, has sued Sisco on the heirs' behalf without their approval.
In more immediate disputis Bergh's certification of a court transcript in the Sisco case although she lacked legal credentials to do so from the Texas Court Reporters Certification Board. In addition, questions have been raised about Martin's handling in June 2003 of an allegedly fraudulent document that he entered into the Sisco case court record.
When Bergh unaccountably failed later to include any reference to the challenged document in the court transcript she provided to Sisco, she and Martin became targets of a Conroe police complaint, and the ensuing investigation uncovered her lack of licensing.
Both Bergh and Martin also have been connected with the work of an ongoing county grand jury.
The grand jury indicted Bergh last month on misdemeanor charges stemming from her lapsed court reporter certification. She since has been reassigned by Martin to be his court recorder -- a non-state licensed job operating the courtroom's audio transcription equipment.
Prior to the grand jury's action, Judicial Watch had urged prosecutors to take action against Bergh and to have the Sisco estate matter removed from Martin's court altogether. Verney said Martin's continuation on the case would raise questions of potential conflict of interest and lack of impartiality.
Montgomery County Court-at-Law No. 2 Judge Jerry Winfree, who presides over the county's probate system, recently moved all probate cases from Martin's court but later sent Sisco's back. Winfree told Verney by letter that Martin wanted to keep the case due to his familiarity with it.
Martin, who publicly has confirmed appearing before the grand jury, also has said he believes he is under investigation because of the Bergh case. However, prosecutors so far have denied his assertion.
Neither Martin nor Bergh returned a phone call requesting comment.
In the Alpert Trusts case, Harris County Court-at-Law No. 2 Judge Mike Wood has been the target of a recusal effort relating to his alleged conflict of interest with a lawyer serving as a trustee to the estate. The lawyer is a member of a Houston law firm where Wood worked until 1986, the judge said.
Verney said the trustee is pursuing litigation on behalf of the Alpert heirs against their father despite the children's wishes to the contrary. He also said court records show the five-year-long lawsuit has generated court-approved legal fees of $500,000 for Wood's former law firm.
Citing ethical considerations, Wood declined to comment on most matters related to the estate case but pointed out that the conflict-of-interest charge has been heard by an outside judge, who decided in favor of leaving Wood on the case.
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