Like many people with autism, Greg Demer is bright but has difficulty communicating. He has a passion for the history of military aircraft, but he can’t quite keep up a conversation with new people. When he meets someone, he’ll quote from movies or ask them about their favorite Teenage Mutant Ninja Turtle. His mother, Linda Demer, worried that he wouldn’t be able to make complicated decisions about his finances and health care once he turned 18. So, in 2005, a judge in Los Angeles, where they live, granted her conservatorship over Greg. “I wanted to protect him,” she said of her son, who is now 31. But in the conservatorship process, the judge also stripped away Greg’s right to vote. He was not only unfit to make decisions about his health care and finances, the judge ruled, but he also was unfit to participate in the democratic process. In being declared “mentally incapacitated,” he joined tens of thousands of Americans with disabilities who every year lose their right to vote during guardianship proceedings, according to the California-based Spectrum Institute, an advocacy group for people with disabilities. Laws in 39 states and Washington, D.C., allow judges to strip voting rights from people with mental disorders ranging from schizophrenia to Down syndrome who are deemed “incapacitated” or “incompetent.” Some of those states use archaic language like “idiots” or “insane persons” in their statutes. The states that do not have similar restrictions are Colorado, Idaho, Illinois, Indiana, Kansas, Maine, Michigan, New Hampshire, North Carolina, Pennsylvania and Vermont. Not only is there no agreement among legal and psychological experts over whether certain people with disabilities should be disenfranchised, but there is also no set standard for measuring the mental capacity needed to vote. There is a tension between protecting the integrity of the electoral process and the civil rights of a person under guardianship, said Dan Marson, a professor emeritus at the University of Alabama at Birmingham’s department of neurology. “What should we require as a minimal standard?” he said. “There is not a clear answer.” Should There Be Limits? Fear of voter fraud is a primary reason why certain people with cognitive impairments are kept from the polls. People with Alzheimer’s, for example, could be given a ballot while awake but only partially alert, and their caretaker or family member could cast it for them. Or a staff member at an assisted living facility could fill out or influence the ballots for dozens of people with severe cognitive issues. “You would have people essentially voting twice,” said Pamela Karlan, the co-director of the Supreme Court Litigation Clinic at the Stanford University Law School. “Some people’s cognitive abilities are so impaired, they shouldn’t vote. They have no idea what’s going on.” Karlan said people should not only express an interest in voting, but also understand what voting means. A very small number of votes, and in some cases potentially “tainted” votes by people who don’t have the “mental capacity of understanding an election,” can make a big difference in a close race, said Paul Appelbaum, the director of the division of law, ethics and psychiatry at Columbia University’s department of psychiatry. That sort of situation is not so farfetched, he said. A congressional race in Pennsylvania this month was decided by around 600 votes. “Imagine if it became known that all the residents of a nursing home in the district voted in the election,” he said, “and many of them were so impaired that they didn’t know what the election was about or didn’t know what filling in a bubble on a form was.” But in those examples of voter fraud, it’s not the person with a disability committing the crime — it’s the caretaker or family member, said Michelle Bishop, an advocacy specialist at the National Disability Rights Network based in Washington. “We don’t strip someone of their rights in the name of protecting their rights,” Bishop said. “They are literally the last people in the U.S. who can get their right to vote stripped because of their identity. Having a disability does not mean you are not competent to vote.” While some may not be able to make sound choices about their health care or finances, they can still understand and participate in the electoral process, Bishop said. The capacity to make choices depends on the situation.

Children with special needs not only require considerable out-of-pocket medical and therapy expenses, if they aren’t able to live independently as adults, their families must financially prepare to support them for the rest of their lives. However, when parents try to save for their disabled child’s short- and long-term expenses, they often jeopardize their ability to qualify for public benefits like Medicaid and Social Security Income, which are often needed to cover current expenses and allow a parent to care of the child. That’s where 529 ABLE Accounts come in to assist. These tax-exempt accounts allow parents to contribute up to $15,000 per year. Other family members and friends may also contribute. However, contributions must be made using post-taxed dollars and are not tax deductible on federal income taxes. If the account reaches a total of $100,000, the disabled individual will no longer be eligible to receive Social Security benefits, but they still may qualify for Medicaid. Families apply for ABLE Accounts through their state of residency. Currently, about 30 states offer ABLE Account management. If you live in a state that doesn’t, federal law allows any American to apply for the account, and some states can accept applications from anywhere in the U.S. – according to the ABLE National Resource Center, Ohio, Nebraska and Tennessee are three of those states. ABLE Accounts are similar to 529 college savings plans in that they offer tax-free investment growth and tax-free withdrawals when the funds are used to pay for qualified expenses. Qualified disability expenses include healthcare, assistive technology, education, housing and transportation, job training and support, and financial management that aren’t covered by insurance or Medicaid.  To Continue Reading Article Click Here :www.cuinsight.com

The award-winning 2017 short documentary “Edith+Eddie” by Kartemquin Films and directed by Laura Checkoway follows the story of America’s oldest interracial couple whose love story is interrupted by a family feud and an administrative probate hearing. The movie highlights the loss of all human and constitutional rights as well as loss of all property rights once Edith is placed into an involuntary guardianship by a probate judge. What can happen if you fail to settle a family dispute in a guardianship hearing in St. Louis and St. Louis County? Once you take the matter to a probate judge, you risk losing your loved one to the system. The probate judge will appoint a third-party guardian, regardless of whether advance directives (durable power of attorneys, health care proxies, wills, trusts, etc.) are in place or not. The elderly ward is punished because his/her family “can’t get along.” Your loved one will lose all constitutional and fundamental rights (right to vote and the right to marry) as well as control of all property, life savings, personal treasures. And that is not the worst of it: You will lose all input into your loved one’s care and the right to know of his/her medical condition. You will become powerless to help your loved one if the guardian decides to send him/her to a nursing home. Remember who is going to profit from the guardianship/conservatorship of your loved one: the guardian, the other fiduciaries, and your attorney. To Finish Article Click Here: stlamerican 

FRANKFORT, Ky. (AP) — A bill aimed at easing the state's growing burden as guardian of vulnerable elderly and disabled people moved a step closer to clearing the legislature Wednesday. The measure, which seeks to ease the strain by ensuring that more relatives take on guardianship roles, won unanimous approval from the Senate Health and Welfare Committee, without any changes. The bill goes next to the full Senate. The House approved it by a vote of 79-3 early this month. It comes as the state struggles with growing caseloads of people who become wards of the state. The state is currently guardian for 4,448 wards, said Tim Feeley, deputy secretary of the Cabinet for Health and Family Services. "We have a system where our guardianship program continues to grow and grow and grow, and we can't keep up with it," he told the committee. State guardians are juggling caseloads of 65 to 70 wards apiece, about three times more than that recommended by national guidelines, Feeley said. Under the current system, when families are fighting over who will serve as a relative's guardian, judges sometimes resolve the matter by appointing the state as guardian, the bill's supporters said. Under the bill, judges would have to determine that "exceptional circumstances" exist to appoint the state as guardian. The bill "makes the family have to work it out," said main sponsor Republican Rep. Daniel Elliott of Danville. Unlike some neighboring states, Kentucky has no cap on the number of wards in its public guardianship program, and Feeley spoke against imposing such limits. "I don't think a cap is the right idea, because there's always one more case that we need," he said. Much of the discussion in committee focused on another provision, which would allow jury trials to be waived in guardianship matters when all participants consent to a judge deciding the case. Supporters stressed that the right to a jury trial would remain intact for anyone wanting it. Kentucky is the last state to require jury trials in such guardianship matters, Feeley said. To Read The Rest Of The Article: www.usnews.com

CHEYENNE – Jessica Delancy’s mother might as well be a stranger. It has been nearly a decade since Delancy’s mother, struggling with mental health issues, grappling with addiction and working two jobs, dropped then-6-year-old Delancy off at her grandmother’s house in Cheyenne. She hasn’t seen or heard from her since. Now, Delancy is a straight-A student at Cheyenne’s South High School, living with her grandmother, Debbie Bumford, in south Cheyenne. Her little brother, Robert Campbell, fondly known as “B-Man,” is thriving in sports and activities at Johnson Junior High. But for many years, Delancy worried she’d see her mother out in public, or that her mother would come to take Delancy and Campbell away from the only stable home they’d ever known. “For a while, I was really paranoid,” Delancy said. “And not having the power to do anything, it was scary.” Delancy had reason to fear. It is estimated that more than 10,200 Wyoming children live with a relative such as a grandparent, according to the 2010 U.S. Census . But under current Wyoming law, caregivers such as grandparents, aunts and uncles don’t have the same consideration under the law as biological parents, even if they have legal guardianship. It means that even though Delancy’s grandmother legally took over guardianship responsibilities, Delancy and Campbell could have ended up back with their mother if she moved to terminate Bumford’s guardianship rights. And unless guardians such as Bumford can prove the biological parents “unfit” to care for the child – a difficult finding that often costs thousands of dollars and a large timeframe to prove – the kids go back with the biological parents, sometimes against their will. This year, the Wyoming Legislature’s Joint Judiciary Committee is sponsoring a bill that would protect children staying with third-party caregivers, known in the bill as “de facto custodians.” Under House Bill 15 , the child’s “best interest” would be considered in court proceedings when parents petition to revoke the guardianship of third-party caretakers. Annie McGlothlin is leading the charge. McGlothlin is a 63-year-old grandmother caring for her daughter’s 5-year-old son, Jayden. Jayden’s last name will not be used for his safety and privacy. He came into McGlothlin’s care in July 2014 after his mother was brutally beaten by his father. Affidavits submitted in court outline how the pair abused alcohol and drugs, and the child’s mother suffered from mental health problems. Years of on-and-off contact with the child’s mother and failed attempts at reunification made it obvious that McGlothlin and her husband, Steve, would become Jayden’s primary caretakers.  But any semblance of stability came crumbling down when Jayden’s father returned via letters and a court petition after a stint in prison, threatening to revoke the McGlothlins’ guardianship rights. And even though the father was arrested earlier this month suspected of counterfeiting and charged with methamphetamine distribution, the McGlothlins still feared that he could’ve taken the child if he stayed out of prison. That’s, in part, because case law in federal and Wyoming courts dictate that parents have a fundamental, constitutional right to raise their children. The U.S. Supreme Court found in 2000 that parents have a constitutionally protected right to “make decisions concerning the care, custody and control of their children.” In 2006, the Wyoming Supreme Court ruled that the court must first determine that a child’s natural guardian is not fit before considering whether it is in the child’s best interest to return to the biological parent. In cases such as the McGlothlins’, those rulings mean the grandparents are forced to prove the parents are so unfit that they shouldn’t have custody rights at all. “That’s obviously a very difficult action to take,” said state Sen. Tara Nethercott, R-Cheyenne, who is an attorney practicing civil and family law. To prove a parent unfit, guardians have to present evidence that the person is incapable of caring for the child or there’s an unwillingness to do so. But since the guardians can’t easily compel parents to take drug tests and often don’t have enough resources to hire private investigators, it’s nearly impossible to do. Nethercott said the proposal would give guardians such as the McGlothlins and the children a say in the child’s fate without terminating the parent’s rights altogether. Continue Reading Here:www.wyomingnews.com

A Las Vegas Metropolitan Police Department lieutenant was jailed Wednesday, Valentine's Day, caught up in a sweeping indictment involving elder exploitation. Contact 13 Darcy Spears continues her years-long expose on guardianship abuse with this heart- breaking case. He was supposed to serve and protect but instead he's accused of felony crimes for using Clark County's guardianship system to steal from the estate of a vulnerable couple. And this police officer is directly connected to others first exposed in our ongoing investigation of guardianship corruption. Lieutenant James Thomas Melton is a decorated police veteran. As a sergeant, Melton received a group Medal of Valor and Purple Heart in 2009 for being wounded during a domestic violence call where a baby was pulled away from gunfire. He was also a homicide detective and Metro's SWAT commander, making about $300,000 a year including benefits. But Valentine's Day, a fall from grace as Melton was indicted by a grand jury and charged with stealing the life savings, over $700,000 from an 87-year-old widow suffering from dementia. Court records claim Melton deceived the court after the victim died, representing that she was still alive so he could be named beneficiary on various accounts. And Melton didn't act alone. The indictment shows he hired private guardian April Parks. Parks is already in jail facing over 200 felony counts after our investigation revealed she was double-billing and exploiting clients. Parks, her attorney Noel Palmer Simpson and former office manager Mark Simmons all face additional charges of exploitation for working with Melton. According to the indictment, Melton is also accused of stealing the victim's Ford Explorer and taking $2,187.50 from her Disabled American Veterans Charitable Service Trust.  Continue Reading Here:www.ktnv.com

The New Mexico Senate on Wednesday approved a two-pronged measure to provide “immediate relief” to those who have struggled for years with the abuses of a closed legal guardianship/conservator system, while creating the framework for a comprehensive system overhaul by 2020. The unanimous vote, which sends the legislation to the House of Representatives, comes after what one senator called a “Herculean” effort to address failings of the current system – as evidenced by the recent embezzlement of millions of dollars from guardian or conservator clients of two now-defunct Albuquerque firms. Under the measure approved Wednesday, court hearings that are now closed would be open to the public as of July 1. Family members would have more access to guardianship records and visitation wouldn’t be as easily thwarted by commercial guardians, who also have been accused in some cases of profligate spending and excessive fees. Nonfamily conservators would have to post bonds in case financial impropriety occurred. Sen. Daniel Ivey-Soto, D-Albuquerque, one of the bill’s sponsors, said the phased-in measure would give “immediate relief and to make sure we make good on a promise (for more comprehensive changes). We will keep legislating on it.” Sen. Jim White, R-Albuquerque, who led the reform effort, told his colleagues before Wednesday’s vote that the state’s courts need more time and money to enact the more costly aspects of the measure, such as bringing all existing cases up to compliance. Judges approve petitions for guardianship and rely on annual reports to ensure their guardian or conservator appointees are doing their jobs. Sen. Jerry Ortiz y Pino, D-Albuquerque, a longtime advocate of reform, recounted his experience on the Supreme Court commission appointed last year after publication of a Journal series, “Who Guards the Guardians?” The commission heard testimony from the public about the issue last year. “It was painful to hear how dysfunctional our system has become … because we as legislators haven’t been giving the judiciary the tools to make the system work better.” Over the months of study by the commission and several legislators, a consensus emerged: Reporting requirements to allow judges to assess a protected person’s welfare and assets aren’t stringent enough. Families are sometimes shut out of their incapacitated loved ones’ lives by guardians. And judges should improve oversight. There was also the recognition that the judiciary is financially strapped and needs additional time and resources to implement more reform. The judiciary, for instance, identified 24,000 existing cases in its computer system as being “sequestered” – meaning closed to the public. But it isn’t clear how many of those are adult guardianship cases, and there’s no way to easily tell in each case whether the protected person or the guardian is still alive. “We don’t have that information, and that’s part of the issue before us,” White said. ” There’s not a database that keeps track of all those cases. There may be abuse out there that we don’t know about.” A provision of the bill, he said, would entail building a database of guardianship cases.  Continue Reading Here : www.abqjournal.com

A new law, which took effect on Jan. 1, 2017, opens a door for individuals with disabilities—a door that’s been closed since 1993. When President Obama signed the 21st Century Cures Act (CCA) in late 2016, which, in part, authorizes the establishment of self-settled special needs trusts (SNTs), he corrected a longstanding oversight in existing federal legislation while simultaneously creating an empowering opportunity for individuals with disabilities. The new legislation provides a solution to a big issue for both estate planners and individuals with disabilities, making the option of using an SNT much less cumbersome. What’s an SNT? An SNT is a type of irrevocable trust that’s frequently used to hold the assets of a disabled individual who’s receiving Medicaid or other public benefits. Typically, those with disabilities qualify for government assistance, such as Supplemental Security Income (SSI), Medicaid and subsidized housing. Many government assistance programs are “means tested” (or “needs based”). To be eligible to receive means-tested benefits, an individual’s assets and income must be below a certain level. When properly drafted and administered, the assets held in an SNT won’t count against the individual’s asset limits for the purposes of his or her Medicaid or SSI eligibility. A new law, which took effect on Jan. 1, 2017, opens a door for individuals with disabilities—a door that’s been closed since 1993. When President Obama signed the 21st Century Cures Act (CCA) in late 2016, which, in part, authorizes the establishment of self-settled special needs trusts (SNTs), he corrected a longstanding oversight in existing federal legislation while simultaneously creating an empowering opportunity for individuals with disabilities. The new legislation provides a solution to a big issue for both estate planners and individuals with disabilities, making the option of using an SNT much less cumbersome. What’s an SNT? An SNT is a type of irrevocable trust that’s frequently used to hold the assets of a disabled individual who’s receiving Medicaid or other public benefits. Typically, those with disabilities qualify for government assistance, such as Supplemental Security Income (SSI), Medicaid and subsidized housing. Many government assistance programs are “means tested” (or “needs based”). To be eligible to receive means-tested benefits, an individual’s assets and income must be below a certain level. When properly drafted and administered, the assets held in an SNT won’t count against the individual’s asset limits for the purposes of his or her Medicaid or SSI eligibility. Types of SNTs In brief, there are three types of SNTs: (1) a first-party trust (sometimes referred to as a “d(4)(a) trust" or simply a “special-needs trust”); (2) a third-party trust (sometimes referred to as a “supplemental-needs trust”); and (3) a pooled trust. A first-party SNT can be funded only with assets that belong to the disabled beneficiary (such as an inheritance or the settlement proceeds from a lawsuit). A third-party trust can be funded only with assets belonging to someone other than the disabled beneficiary (such as the beneficiary’s parent or grandparent). A pooled trust can be either a first-party trust or a third-party trust. With a first-party or third-party SNT, the individual establishing the trust may choose an individual or a corporation to serve as trustee. A pooled trust is a trust that’s established by a nonprofit organization, which also serves as trustee. Pooled trust accounts hold assets from many different individuals with disabilities and generally provide reduced administration costs. A new law, which took effect on Jan. 1, 2017, opens a door for individuals with disabilities—a door that’s been closed since 1993. When President Obama signed the 21st Century Cures Act (CCA) in late 2016, which, in part, authorizes the establishment of self-settled special needs trusts (SNTs), he corrected a longstanding oversight in existing federal legislation while simultaneously creating an empowering opportunity for individuals with disabilities. The new legislation provides a solution to a big issue for both estate planners and individuals with disabilities, making the option of using an SNT much less cumbersome. What’s an SNT? An SNT is a type of irrevocable trust that’s frequently used to hold the assets of a disabled individual who’s receiving Medicaid or other public benefits. Typically, those with disabilities qualify for government assistance, such as Supplemental Security Income (SSI), Medicaid and subsidized housing. Many government assistance programs are “means tested” (or “needs based”). To be eligible to receive means-tested benefits, an individual’s assets and income must be below a certain level. When properly drafted and administered, the assets held in an SNT won’t count against the individual’s asset limits for the purposes of his or her Medicaid or SSI eligibility. Types of SNTs In brief, there are three types of SNTs: (1) a first-party trust (sometimes referred to as a “d(4)(a) trust" or simply a “special-needs trust”); (2) a third-party trust (sometimes referred to as a “supplemental-needs trust”); and (3) a pooled trust. A first-party SNT can be funded only with assets that belong to the disabled beneficiary (such as an inheritance or the settlement proceeds from a lawsuit). A third-party trust can be funded only with assets belonging to someone other than the disabled beneficiary (such as the beneficiary’s parent or grandparent). A pooled trust can be either a first-party trust or a third-party trust. With a first-party or third-party SNT, the individual establishing the trust may choose an individual or a corporation to serve as trustee. A pooled trust is a trust that’s established by a nonprofit organization, which also serves as trustee. Pooled trust accounts hold assets from many different individuals with disabilities and generally provide reduced administration costs. Each type of SNT has other attributes, as well as additional differences, and there are important considerations involved in determining which type of trust vehicle is appropriate in any given scenario. An analysis of these issues is well beyond the scope of this article. Moreover, the key change to special-needs trust law brought about by the CCA applies only to the creation of first-party SNTs. Key Elements of a First-Party SNT The Omnibus Budget Reconciliation Act of 1993 (OBRA-1993), which was codified under 42 U.S.C. Section 1396p(d)(4), et seq., authorizes the use of trusts created with assets of an individual who receives public benefits without sacrificing the government assistance received. Under Section 1396p(d)(4), the following conditions must be met to create a first-party SNT: The beneficiary of the trust must be a “disabled” individual as defined by the Social Security Act (SSA) The beneficiary of the trust must be under the age of 65 when the trust is established The trust must be established by the disabled beneficiary’s parent, grandparent, legal guardian or a court The trust must be funded solely with the disabled beneficiary’s own assets The trust must include language providing that at the disabled individual’s death, any remaining trust funds will first be used to reimburse the state for Medicaid paid on his or her behalf  In addition to those mentioned above, the law places many other restrictions and prohibitions on the language used in the provisions of an SNT and regarding how and for what purposes the trust assets can be distributed.1 For example, another important requirement in the administration of an SNT is that any distributions from the trust must be for the sole benefit of the disabled beneficiary. It’s important for drafting attorneys and trustees to familiarize themselves with all of the laws and rules governing the creation and administration of SNTs.

Las Vegas, NV (KTNV) - Thanks in part to a Contact 13 Investigation, the state is stepping up to help protect our most vulnerable residents. Contact 13 Chief Investigator Darcy Spears has new information in her ongoing expose of a system that many say fails to protect those who need help the most. Our series of reports prompted the Nevada Supreme Court to take a serious look at how the guardianship system was failing. One of the key recommendations - create a permanent Guardianship Compliance Office to support and protect the rights of people under guardianship. Today the Nevada Supreme Court announced Kathleen McCloskey will run the new office. McCloskey previously worked for Nevada Aging and Disability Services. Her first task will be hiring an investigator and forensic financial specialist to help courts overseeing guardianship cases. Our investigation revealed heart-wrenching stories where loved ones were isolated from family. Houses were sold without court approval and entire life savings were drained away. Continue Reading Here : www.ktnv.com