Guardianship Bills Seek to Prevent "Grannysnatching"

By:  Timothy P. Flynn

An adult guardianship is a probate court proceeding that protects an individual that cannot take care of his own affairs by appointing a fiduciary -a guardian or conservator- to care for the incapacitated individual.  In our free-society founded on individual liberties, guardianships although disfavored as a legal status, are sometimes necessary to protect individuals made vulnerable through age or mental illness.

As a Public Administrator, I have served the Oakland County Probate Court by accepting appointments as the guardian and conservator for individuals deemed by a judge to be incapacitated, but who do not have suitable family members to serve as their fiduciary.  Currently serving as guardian for just over 75 protected individuals, and for hundreds over the past decade, I have acquired vast experience in dealing with all aspects of adult guardianships and conservatorships.

Two weeks ago, companion bills were introduced in the Michigan Senate to amend the guardianship provisions of the Estates and Protected Individuals Code -Michigan's probate code- to adopt the Uniform Guardianship Jurisdiction Act.  The companion bills seek to restrict the subject matter jurisdiction of the county probate courts by adopting a complicated three-tier test to ascertain the allegedly incapacitated individual's contacts with the forum state prior to granting a guardianship.

Under the present probate code, a guardianship can be granted for any incapacitated individual physically present in Michigan.   One benefit touted by supporters of the Senate bills is prevention of conduct known as "grannysnatching" whereby a person takes a vulnerable individual into Michigan from another state and immediately files for guardianship in order to control the person's income and assets, and to prevent contact by other family members.

If adopted, the Senate bills would revise our guardianship act, making the initial establishment of a guardianship much more difficult, and complicated.  Under the present guardianship procedures there are effective safeguards already in place.  For example, prior to the establishment of a guardianship, a Guardian Ad Litem is appointed by the probate court to function as the "eyes and ears" of the court; to investigate the guardianship petition and make a recommendation to the judge.

Also, under the present law, all "interested persons" -other family members- must be served with a copy of the petition and can appear at the hearing on the petition and object to the guardianship or to the appointment of the nominated individual.  Such notice provisions, along with the GAL's report to the probate judge, operate as an effective set of safeguards against cases of reprehensible "grannysnatching".

We here at the Law Blogger see these companion bills, SB 465 and SB 466, as more trouble than they are worth.  If adopted, probate court staffs across the state will need to absorb and digest the complex provisions of the Uniform Guardianship Jurisdiction Act and the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act; this will require staff training and increase the administrative costs associated with the delivery of these public services.

Such cost and complication will come just as the Oakland County Probate Court has managed to trim staff and control expenses to stay on-track with Oakland County's perennially-balanced budget; a rarity in this day and age, especially considering that the services provided by the probate administrative staff have remained first-rate.

For these reasons, we say "no" to the companion bills and urge the Michigan Senate to leave well enough alone.  The present guardianship system in Michigan is not broken thus, it does not need to be "fixed" by a uniform act.

Related Note:  A documentary on elder abuse titled, Last Will and Embezzlement, was profiled in today's Freep.  The film, which takes a look at the ways criminals take advantage of the elderly, is playing in Clinton Township and West Bloomfield.

www.clarkstonlegal.com
info@clarkstonlegal.com

Read more »

Posted in: conservatorship,Guardian Ad Litem,guardianship,Oakland County Probate Court

Facebook and Vigilante Justice

By: Timothy P. Flynn

On Sunday Morning, I was reading the Detroit Free Press about a rough incident of vigilante justice made possible by Facebook.  As the social media experience accelerates, we can expect more cases like this one.

The Crime.  A 15-year old girl with Down Syndrome was allegedly raped in the Hubbard Farms neighborhood on Detroit's Southwest side on July 17th.  Word got out that the suspect was a 45-year old man, also from Hubbard Farms.

The Consequences.  First, Emails circulated through the neighborhood about the attack and the suspect's involvement, divulging his name and address.  Next, graffiti below the suspect's apartment window pronounced the Hubbard Farms resident a "Rapist".  Once outed by the graffiti and emails, neighbors demanded to know what should be done about the attack, and the alleged attacker, like right now.

An Unfortunate Delay.  For their part, the Detroit Police bungled getting off the dime on the case.  The subsequent investigation into the girl's attack led to a rape kit that included a Buccal swab from the suspect.  The DNA samples, however, were not transmitted to the Michigan State Police crime lab by the DPD for over a week.

We here at the Law Blogger know, from our own cases, that the State Police crime lab is seriously backlogged, taking between 6-months up to one-year before test results are returned.

A Facebook "Call-to-Action".  So in the month since the rape occurred, neighbors who see the alleged attacker still walking the streets, have become incensed with the slow-moving wheels of justice.  They know that the suspect has not been charged with any crime; at least not yet.

This delay in justice was not acceptable to some of the neighborhood residents who recently struck-up a FB campaign calling for street justice; one post even suggested a back-alley castration; others posted equally specific threats.

The Beatdown.  Apparently, due to the e-notoriety of the alleged attacker, he himself was attacked on the street by several members of the neighborhood, beaten with a baseball bat and kicked in the ribs and face according to witnesses.  He survived the beatdown and his family moved him to an unknown location for his own safety.  [Note: Although witnesses to the beatdown contacted the DPD, the police arrived too late, apparently otherwise engaged with a fatal shooting nearby.]

Guardianship Proceedings.  According to the Freep article, the suspect has a mental illness, was committed to a mental health facility last year, and has a Guardianship in the Wayne County Probate Court.

Managing over 75 guardianships in my own law practice as a Public Administrator, I understand the challenges and heartbreak of mental illness.  Mental illness, however, is not a legal defense to most crimes.  When our wards get charged and convicted of crimes, their mental illness is taken into account at the sentencing hearing, but it does not exonerate the criminal act.

Vigilante Justice.  Vigilante justice is not the answer, even when the wheels of justice turn slowly.  While justice delayed is truly justice denied, vigilantism points to a critical breakdown in our society, letting us know just how close chaos looms beneath the surface.

As a criminal defense lawyer, I understand the necessity of the prosecutor to collect evidence to prove the charges in a court of law.  Nearly always easier said than done, especially in Detroit.

In this case, the Wayne County Prosecutor will bring criminal charges against the alleged attacker just as soon as they have sufficient evidence to prevail in court; that's how the justice system works.

We here at the Law Blogger find it ironic that technological advances such as the proliferation of social media serve, at least in cases like this, to accelerate violence in a frenzied rush to judgment.

What if the mob gets it wrong; where is the appeal filed from that injustice?

www.clarkstonlegal.com

Read more »

Posted in: buccal swab,criminal defense lawyer,Detroit Police Department,DNA,Facebook,guardianship,Hubbard Farms,Public Administrator,Timothy P. Flynn

When Dementia Renders Your Spouse a Stranger

Richard Webber & Adele of Grey's Anatomy

Dementia, always a sad development for any family, is particularly cruel in long-term marriages where one spouse is afflicted, and the other is left to pick-up the pieces.  In such cases, marriages are often stressed to the break-point.

This issue has received national attention lately, courtesy of the hit television series, Grey's Anatomy, where Dr. Webber's character is losing his wife, Adele, to Alzheimer's.

Alzheimer's disease is the most common form of progressive dementia.  Recent scientific findings, however, suggest that there may be many sub-types of dementia.

For example, frontotemporal degeneration [also known as Pick's disease] manifests itself much earlier than Alzheimer's and progresses faster.  Frontotemporal degeneration is believed to afflict between 50-60 thousand adults in the United States, compared to the 5 million Americans afflicted with Alzheimer's.

Frontotemporal disease is particularly threatening to a marriage due to the swift onset of symptoms which attack a spouse's personality directly; not just with the onset of memory loss, as in much older Alzheimer's patients.  The non-afflicted spouse often feels ignored, snubbed or maligned because of the most common characteristic of the disease: silence.

Like many diseases, frontotemporal degeneration progresses differently in individuals, taking on a life of its own.  Most cases feature a prominent and swift deterioration of the patient's overall personality; a complete breakdown in the patient's ability to communicate with and care about others.

Obviously, the patient's ability to hold down a job, or to hang onto their marriage, is put to the test.  This is because frontotemporal degeneration attacks the frontal temporal lobe of the brain; the region responsible for decision-making and judgment.  The frontal lobe actually shrinks.

Sometimes, one disease is mistaken for the other, leading to confusion among the family care providers and a confusing series of hospital stays, doctors visits and testing.

Dementia, in general, highlights the need to secure a solid estate plan early in a marriage, before the onset of any incapacity.  Once a dementia sets in, an individual could lose their mental capacity and have a guardian and conservator appointed to manage their affairs.  While this fiduciary could be, and usually is, a family member, no estate planning is possible while a loved one is under such legal incapacity.

I you or a spouse have been diagnosed with dementia, here are some local support groups that may be of use:

• Alzheimer's Association;
• National Family Caregivers Association - [developing e-communities to provide support and information]
• Association for Frontotemporal Degeneration - [referencing a support group in Grand Rapids, MI]

In the meantime, if you are enjoying the fruits of good health, do not take it for granted.  Be proactive and get an estate plan executed.

www.clarkstonlegal.com

                                                           info@clarkstonlegal.com

Read more »

Posted in: Alzheimer's disease,conservatorship,dementia,divorce,elder law,estate planning,frontotemporal degeneration,Grey's Anatomy,guardianship,Pick's disease,Richard Webber

Nursing Home Liability: Who Owns the Facility

A recent 2.35 million dollar Macomb County jury verdict shines a light on the ownership and practices of a nursing home in St. Clair Shores.  Bankruptcy and missing records clouded the identity of the real party in interest in a negligence law suit resulting from the 2008 choking death of a resident.

Turned out to be the Nightingale East Nursing Center, owned in part by a now-defunct company, and eventually traced to SavaSeniorCare, an LLC located in Atlanta, GA.

In the litigation, St. Clair Shores attorney John Perrin experienced an evidentiary mistrial and a mishandled document request in clawing his way to the jury verdict.  For their part, the defense attorneys claim that the botched corporate disclosure was not intentional.  Looking for the upside, defense attorneys Plunkett and Cooney (Jenny Andreou) claimed a partial victory through limiting the "non-economic" damage component of the verdict; a motion for remittur has been filed.

This death resulted from a resident choking on a golfball sized meatball; a largely unforeseeable event.  The jury found other liability factors in awarding plaintiff millions of dollars.  Obviously, we want to avoid this fate for any of our families and loved ones that are placed in a nursing home.

Serving as the guardian for more than 100 individuals, many of whom have been placed in nursing homes, I have learned that you can never pay close enough attention to the ward's care.  Complaints against licensed facilities are common and serve the purpose of compelling care improvements.

Nursing homes, assisted care facilities, and adult foster care residences provide a dizzying array of care choices and regulations.  Making the right placement for a family member or loved one is a critical decision.

In Macomb County, follow this link for skilled and basic care nursing homes.  In Oakland County, follow this link for the same information.

www.waterfordlegal.com

info@waterfordlegal.com

Read more »

Posted in: defense attorney,elder law,guardianship,Jennifer Andreou,John Perrin,Macomb County,medical malpractice,negligence,nursing home,Oakland County,Plunkett and Cooney