FLORIDA ESTATE PLANNING AND PROBATE LAW BLOG

The Florida Estate Planning and Probate Law Blog is focused on recent federal and state case law and planning ideas.

Showing posts with label elder fraud. Show all posts
Showing posts with label elder fraud. Show all posts

CONGRESSIONAL ATTEMPT TO CLOSE MEDICAID LOOPHOLES

♠ Posted by Marc J. Soss in ,,,,,,,
Congress is considering making it more difficult for a community spouse to utilize an annuity to qualify for Medicaid. The proposed bill would prevent married couples from using assets to purchase an annuity for the community spouse, so that the institutionalized spouse can apply for Medicaid. The bill would count half of the income from a community spouse's annuity as income available to the institutionalized spouse for purposes of Medicaid eligibility. Savings from the legislation would be utilized to reduce waiting lists for home health care waivers. In addition, Congress is reviewing legislation that would: count lottery winnings as income; and require Medicaid applicants to prove U.S. citizenship or residency before receiving benefits.
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FLORIDA GUARDIAN CHARGES BIG BUCKS TO PROTECT WARD WITH ALZHEIMER'S LIVING IN HUNGARY

♠ Posted by Marc J. Soss in ,,,,,


www.abcactionnews.com

A grieving daughter is fighting against a system that was designed to protect her dad

SARASOTA, Fla. - A grieving daughter is fighting against a system that was designed to protect her dad. She regrets the decision of turning to Florida's professional guardian system for help. She says that decision cost her father's estate a million dollars, and as the I-Team found out, the guardian was racking up those bills, when her father was living thousands of miles away.


“He was an immigrant, came here with one little suitcase and worked himself into millions of dollars,” said Mercedes Gyorgy, describing her father Akos Gyorgy. He earned millions as a Sarasota real estate broker, eventually owning 8 homes in three countries.. But his family says his estranged wife exploited him when he got alzheimer's disease.


They asked for the court to appoint a guardian to protect him and his assets, but now believe that was bad decision. “We turned to the courts to stop the financial abuse, and after that, over a million dollars has been spent on this guardianship,” Mercedes Gyorgy said. On Wednesday, she asked the court to release her late father's remaining assets to his estate, but the guardian and the guardian’s attorney are fighting against that.  “In the first two months of the case, one attorney billed $30,000,” Mercedes said.  And some of those bills came while her father was not even around.


He had disappeared while his Emergency Temporary Guardian was supposed to be protecting him. “I Called the police. They never called the police. They never called the police and said this man was missing,” Mercedes said. In a court document filed weeks later, it was revealed that Akos Gyorgy, who was incapacitated, managed to catch a cab from Sarasota to Orlando, then flew to Frankfort, before catching another flight to Budapest Hungary. Gyorgy was originally from Hungary, as was his estranged wife.


Mercedes says her father met her when his friend placed an ad in a Hungarian newspaper seeking a new bride for him, after his first wife died of cancer. He lived there for five years, which family members contend was out of the Sarasota court-appointed guardian’s jurisdiction.  While the guardian supposed to protect him from his estranged wife, she made multiple trips to Hungary to visit him. So did the guardian. On one visit, he billed his ward nearly $24,000 for a first class plane ticket, lodging at a 5-star hotel, and other expenses. “It was a vacation for sure,” Mercedes said. And that's not all. The court allowed the guardian to use the ward’s money to buy him a $200,000 home in Hungary just weeks before he died.


“It's a crazy case, but unfortunately, it's not that out of the norm with what's been going on in guardianship in the state of Florida,” said Marc Soss, who represents Gyorgy’s family. The judge says he's taking all of the testimony under advisement and will rule in the near future when the remainder of the ward's assets will be transferred back to the ward's family.
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FLORIDA CLOSER TO GUARDIANSHIP REFORM

♠ Posted by Marc J. Soss in ,,,,,,,
 
Guardianship reform has been an issue growing in prominence due to the many abuses found in systems across the nation. Florida is in the process the guardianship reform movement and a step in the right direction as the state Senate is set to have a final vote on a bill that would create a team to oversee the state guardianship system. Scandals have rocked Florida in recent years including one case where a judge was appointing his wife who would then initiate lawsuits on behalf of the ward which family members saw as unnecessary and intended as a vehicle to increase the fees paid to the supposed protector. However, this is not the first attempt at reformation after a bill was passed in recent years which supposedly ended judicial favoritism towards specific Florida guardians although advocacy groups argue that it did little to deter judges. Let us hope this new bill does the trick since guardianship abuse undermines public confidence in the legal system and harms the most vulnerable members of our society.
 
A link to the bill can be found at:
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FLORIDA GUARDIAN DENIED FEE FROM MEDICAID RECIPIENT'S ASSETS

♠ Posted by Marc J. Soss in ,,,,,,,,,
On November 25, 2015, the Second District Court of Appeals, in the case of Lutheran Services Florida, Inc. v. Department of Children and Families (Fl. Ct. App., 2nd Dist., No. 2D13-5840, Nov. 25, 2015) held that the guardian of a Medicaid recipient may not deduct a guardianship fee from the recipient's income because the fee is not medically necessary. The case originated from a court order which authorized a professional guardian to deduct a monthly sum from an indigent and incapacitated individuals income and patient responsibility amount. The professional guardian then petitioned the Department of Children and Families (DCF) to deduct the monthly guardianship fee on their behalf, which they denied to do. DCF took the position that the fee could not be deducted from a Medicaid recipient's income because it is not "medically necessary" under state law. A hearing officer upheld the determination, noting that state law defines medically necessary as services provided in accordance with generally accepted standards of medical practice and reviewed by a physician. The 2nd DCA affirmed the decision on appeal.
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FLORIDA GUARDIANSHIP REFORM - IS IT ON THE WAY?

♠ Posted by Marc J. Soss in ,,,,,
For decades, states have granted courts the power to appoint guardians or conservators for elderly or disabled people unable to tend to their basic needs. Most appointed guardians are family members, but judges can turn to a growing industry of professional, unrelated guardians. Often the guardians are granted broad authority over a ward’s finances, medical care and living conditions. But guardianship systems across the country are plagued by allegations of financial exploitation and abuse, despite waves of reform efforts, according to a Wall Street Journal Page One story. As a result, critics say, many elderly people with significant assets become ensnared in a system that seems mainly to succeed at generating billings. “These laws which were designed to protect the vulnerable are being used against them to exploit them,” says Dr. Sam Sugar, founder of Americans Against Abusive Probate Guardianship, an advocacy group. Because guardianship systems vary by state and county and record-keeping systems are inconsistent, precise national data is unavailable. But the roughly 1.5 million adult guardianships in the U.S. involve an estimated $273 billion in assets, according to Anthony Palmieri, auditor for the guardianship fraud program in Palm Beach County, Fla. The problems are more urgent as aging baby boomers cause the population of seniors nearly to double by 2050, according to Census estimates. In New Jersey, the number of adult guardianships added annually increased 21% from 2009 to 2014, to 2,689 cases. Guardians properly supervised by courts typically do a good job protecting elderly people from exploitation by acquaintances and others, says Catherine Seal, a guardianship attorney in Colorado Springs, Colo., and president-elect of the National Academy of Elder Law Attorneys. “The worst cases that I see are the ones where there is no guardian,” she says. Expenses that arise as a result of a guardianship, including lawyers for both guardians and wards, typically get paid from the ward’s assets. (In some jurisdictions, there is a public guardian’s office that handles cases for indigent clients.) The financial arrangement, critics say, encourages lawyers and guardians to perpetuate guardianships indefinitely. Check out the story for anecdotes involving guardians and their wards. Linda McDowell, of Sequim, Wash., lost about $470,000 in assets during her 30-month stay in Washington state’s guardianship system. After Ernestine Franks of Pensacola, Fla., was placed into guardianship, withdrawals from a $1.3 million trust set up to pay her expenses jumped to $297,000 in 2014 from $94,000 in 2011, when Ms. Franks mostly made her own financial decisions. Article published in the Wall Street Journal on Oct. 30, 2015.
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NEW STATUTE PROTECTS AGAINST ELDER ABUSE BY CAREGIVERS

♠ Posted by Marc J. Soss in ,,,,,,,
The newspapers, especially in Florida, are filled with stories about family members and guardians taking advantage of the elderly. While that may receive all of the press, financial elder abuse by caregivers remains a major problem. To combat this problem, several states (most recently, Illinois) have enacted statutes appropriately making it more difficult for unscrupulous caregivers to extract gifts. These statutes create a presumption of fraud or undue influence for such gifts. They also create the  possibility of liability and professional discipline for attorneys effectuating gifts that run afoul of these statutes.
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SIGNS OF ELDER ABUSE

♠ Posted by Marc J. Soss in ,,,,,,,,,,
The first signs of elder financial abuse are easy to miss. Maybe there's a new, overeager "best friend" who gives off a strange vibe, excessive secrecy around a new friend, or paranoia or anger when talking about money.  It is very rare to discover the sudden withdrawal of large sums of money.  
A perfect storm of factors make America's elderly the target of a fast-growing, insidious crime. Americans are living longer, and with the shift from pensions and toward retirement savings, they face an array of complex choices about what to do with their money. Making matters worse, as each year passes, their cognitive abilities tend to decline while the stakes of their money decisions get higher. Criminals always steal from where the money is, and scam artists always flock to wherever financial confusion can be found.
MetLife estimates that older Americans are cheated out of $2.9 billion annually. In another study, one in 20 older adults report being victimized by "financial mistreatment" at some point in the recent past.  The average loss is between $100,000 to $150,000, an entire lifetime of savings, with no opportunity to rebuild their savings. 
Variations on a Scam
There's a wide range of crimes older Americans face. Some crimes or deceptions are committed by family, friends or trusted advisors. It is not uncommon to hear about a neighbor, acting as a caregiver, stealing from someone suffered from dementia. In most cases the funds are gone forever, used it to pay for improvements on homes, and to purchase luxury items (boat, fancy car, etc.).
Elder fraud can also involve professional financial advice ranging from ill-conceived to criminal. Everyone has heard to story about elderly Americans being placed into costly annuities or bad insurance products.
The Biggest Challenge
To make matters worse, research confirms what those who would cheat older Americans know that the elderly are often the last to know their mental capacity is slipping. "Participants who suffer cognitive decline experience a reduction in their financial literacy but no change in their confidence in managing their money." That leaves children or other family members in the unenviable position of trying to wrest financial control from aging relatives who don't want the help.
Signs of Elder Abuse
The National Committee for the Prevention of Elder Abuse offers this detailed list of signs that someone might be suffering from elder abuse.
"Some of the indicators listed below can be explained by other causes or factors and no single indicator can be taken as conclusive proof," the agency cautions. "Rather, one should look for patterns or clusters of indicators that suggest a problem."
  • Unpaid bills, eviction notices or notices to discontinue utilities
  • Withdrawals from bank accounts or transfers between accounts that the older person cannot explain
  • Bank statements and canceled checks no longer come to the home
  • New "best friends"
  • Legal documents, such as powers of attorney, which the older person didn't understand at the time he or she signed them
  • Unusual activity in the older person's bank accounts including large, unexplained withdrawals, frequent transfers between accounts, or ATM withdrawals
  • The care of the elder is not commensurate with the size of his/her estate
  • A caregiver expresses excessive interest in the amount of money being spent on the older person
  • Belongings or property are missing
  • Suspicious signatures on checks or other documents
  • Absence of documentation about financial arrangements
  • Implausible explanations given about the elderly person's finances by the elder or the caregiver
  • The elder is unaware of or does not understand financial arrangements that have been made for him or her.
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