Archive for September, 2011
By Attorney David Engler
They looked like a perfect couple. She had the athletic good looks of a former college soccer star. He was an up-and-coming programmer at a start-up that had plenty of cash. A new home and a sweet 5-year-old daughter. She was a stay at home Mom and was busy with her hobby/business as a champion Gordon Setter breeder.
But after 7 years of marriages, there were sharp edges. They both partied a bit too much on the weekends and there started to be a reason to get high at the end of each day. Anyway he worked hard and she was a good Mom and it wasn’t hurting anyone else.
Alcohol had a way of causing his one eye to go lazy and his tongue to become acid laced. She knew where the buttons were at and felt justified in giving them a push.
Her younger sister had grown up at their house. Partying was a family trait and the sister wasn’t spared. The wife left for four weeks to see if the bickering would stop. By this time there wasn’t anything foul that had not been said. Good health insurance provided for counseling and it started to work. Part of the plan between them was that the Wife would sneak into her own home so as not to disturb or confuse their daughter and late at night the couple started to rebuild a relationship and find intimacy. The second week into this rebuild the Husband said over the cell that he was going to bed early. She had old suspicions. She went over to the house anyways and turned the doorknob. He thought it was the daughter, put on his robe and went to the door. The look on his face told everything. “where is she?”, she screamed. He denied knowing anything. She looked around the room and under the bed. She tried to open the walk in closet but it wouldn’t open. “Come out Alisha…I know it’s you”. The Wife screamed this for what seemed to be minutes. Alisha was the young co-worker her husband had been on trips with. Finally a voice comes from behind the door, Debbie it’s me I’m so sorry”. Was that her sister’s voice?! She was only 20. It was her voice! “Deb I’m so sorry”.
She turned on her heels and brought a fist from below her right hip directly to the husband’s mouth. While down she added a kick to the family jewels as cheap as they were. She missed with the kick and left a bruise in the thigh.
The next day he filed a police report and asked for a civil protection order right after calling his lawyer. He swore in the affidavit that he was frightened of her and had pictures of his bloody lip to prove it. The form, passed out freely at the domestic relations court, doesn’t ask if you deserved a punch to your pie-hole. And for good measure he threw in the claim that the little girl was nearby when Mom went off her rocker and started hitting him. It was an ex parte order meaning only one side was present. The Court gave him sole occupancy of the house and ordered that the Mother could only see the daughter under supervision. She had to stay at least 500 feet away from the Husband.
She got a lawyer. It was a small town and he advised her to just let this go for now and consent to the Protection Order. It was her biggest mistake. A judge never got to hear that there was a very unique reason for the punch. By the book, it is assault. But some lawyers advise their client’s to shamelessly get a Protection Order. It makes the other side fight uphill especially if throwing a criminal charge on top of it. I view it like negotiating with a terrorist…don’t. Judges, Magistrates and juries are like the rest us. They can see a railroad job and have the ability to say that no protection order is necessary, unless the husband plans on bedding the sister in the future.
It was a disaster after that. The husband had plenty of money to pay lawyers to delay and invite the court to become part of the parenting team. After a few months of not seeing her child, drugs helped numb the pain. It made her mind wander from trying to figure out how she became the guilty one. He also used drugs, but managed to get the court to order a drug test that she failed. No one ever suggested the daughter was anything but loved and well cared for, but mention drugs and she could not possibly be a good mother. So she had to continue to take drug screens to prove she was clean. He did not have to provide a drop of urine. Wear a suit and you can go far.
For two and one-half years it went on this way. She could only see her daughter under the watchful eye of a Hope House worker. In a matter of weeks she went from homeroom mom to the type of mom you see on a prison visit.
She is back with her daughter now almost half-time. It cost her over thirty thousand dollars to get to a place of almost normal. I am not sure there is a moral of this story. As a lawyer , I would tell my client never consent to anything that keeps you away from your children. As a human being I’m not sure I could say “don’t punch your husband in the mouth if you find him in your bed with your little sister”.
(As always my clients consent to my blogs because it might help someone else and the names are changed to protect the innocent)
By Attorney David Engler
Skilled nursing facility care will be paid by Medicare when your ward or parent needs daily skilled care that cannot be provided in the community or on an outpatient basis. The benefits are the cost or partial cost of rehab in a nursing home facility. Medicare part A will pay for the first 20 days at the full patient cost, and up to 80 more days with a co-pay. The issue that a guardian is often confronted with is whether the patient is benefitting from the care being received. There are horror stories of older patients receiving care that could not possibly benefit them. With the federal government focused on saving money in the entitlement areas like Medicare, be sure that there will be increased scrutiny on the payment for skilled care and whether it is needed.
That is where the guardian has to become the advocate for the patient. You need to observe the changing condition of the patient and ideally the improvement. There will be an ongoing assessment of rehabilitation goals. One of the manners in which this is determined is improvement in gait. The patient does not have to be considered curable for Medicare to pay.
Services can be provided at home through a Medicare certified home health agency. The patient will need to have the doctor write a plan of care. This plan of care should be discussed by the guardian with the doctor and make sure that it is updated every two months.
By Attorney David Engler
Aside from flat-out driving an incompetent victim to their bank and taking their money, the first choice of the thief is the power of attorney.
A Power of attorneys is recognized in every state and there is little to no regulation of its use. In most states the only time it is recorded is when real estate is being transferred. There should be extreme caution given by any professional who drafts a power of attorney. Care should be taken to truly understand not only if the signer is competent, but is the person being coerced even if subtly.
As a lawyer I have seen power of attorneys given to care givers who might have come into the elderly person’s life because they were hired. The constant contact with the person presents an opportunity for the caretaker to overstep their role. This is yet another good reason why family members should choose a person who is a registered guardian. It is a far better course of action to choose a stranger who is trained and bonded than checking the inventory at death to find out all the assets were depleted.
The power of attorney most often survives incompetency if it was drafted within the last 20 years. It is true that there is plenty of case-law indicating that a person cannot use a power of attorney for their own benefit, but self-dealing is usually not detected or discovered too late. By then assets are gone and usually unrecoverable.
As part of planning for the care of your mother or father or other person who seems unable to handle their own finances because of mental or physical reasons, a good start is to ask if there are any power of attorneys out there and better yet send a notice of revocation to all the banks with which the person might be doing business.
By Attorney David Engler
One of the most important jobs of a guardian is to keep track of the times you visited your ward at a nursing or group home. Just last night I was visiting my own mother at a rehabilitation facility. Now while she seems to be completely competent at age 82, I can see the difference in treatment because the staff knows I am a lawyer and involved in the guardianship business. Most importantly I am keeping track of what I am seeing and letting them know that I am. My mom has complained about not getting her medications at the right times and about rude treatment by an aide. Her roommate confirmed the complaints.
It is remarkable how some staff that work at nursing homes do not seem to like their jobs and treat all patients like unruly children.
Well, they should be listing the complaints they receive directly from the patients on their charts. They do not! It is information that might show a pattern of neglect and therefore better not to list. But the fear of litigation is a powerful deterrent and if you demand that your complaints on behalf of your ward be documented and that you are recording the same, your client will get better care.
My Mom hit the nurse’s button and was not supposed to use the rest room without assistance. The response took more than 20 minutes. Now she is on a diuretic and it is hard to wait. The aide finally showed up and said, well just do it in your bed. You have to be kidding! She wasn’t! Believe me, these understaffed and under trained statements are coming out every day to our wards who find themselves relying on the care of others. Let the facility know up front that you will document the issue in your own case notes.
Our software (www.eguardianship.com) allows the guardian to keep track of case notes and these notes are searchable. Contemporaneous notes are admissible as business records if litigation is needed in the future. We have to put the pressure on the residential care-givers to keep them honest and accountable.
Vary the times you come to visit so your schedule is not predictable. If they know you show only at 4 P.M. then maybe they will not bathe your ward until that time. Do not be shy about letting the residential care facility know that your job is as an advocate on behalf of your ward. Let them know that you keep electronic records even if they do not.
By Attorney David Engler
At our affiliated company, eGuardianship.com, our clients who are guardians are people who take care of other people. There is no higher calling. The genesis of this profession can be found in the founding principle of every religion. And as our world moves us faster and faster and with greater and greater distance between us – technology can be part of the fabric that holds us together. It can be the means of communication that allows us to make sure our mother is getting the best care or that a veteran is sure to have a home. Reporting on visits or reporting to a court are all done with binary precision.
I have had this debate over many years with friends. Some believe that as the world ages we grow apart. They see the world as tribal warfare, disconnected crimes and people simply tuned out. I believe the opposite. If we can find more common languages, our world shrinks. Math is universal. It is the basis for technology. It allows the foundation of the explosion of social networking. It allows a guardian in Alaska to check the medical records of her ward in a flash who was treated in Texas. It allows this blog. Technology is a unifying force. And the people who are engaged in the most noble of professions will use it to bring their care closer to those who need it.
By Attorney David Engler
When we first saw her it looked like a hunk of raw hamburger had been stuck to the left side of her face. I asked my client how his ex-wife got the shiner and he said he had no idea. We were there to try to get his two children back. On her own the mother had decided that the shared parenting schedule should be broken and the 13-year-old girl and 9-year-old boy should live with her. On the domestic court wing of the court anything can be seen on any day.
No one would help. He called the police and they said they don’t get involved in custody issues even though he had a piece of paper. Children Services said if there was no allegation of abuse it wasn’t up to them. He called his own rural police department and they said it was a City problem. The ex-wife had moved six times in the last 18 months. She was now shacked-up with a huge man who had done time for felonious assault. He had three children of his own and together they had an infant. With my client’s own children, it was a household of 8 in a run-down part of Youngstown.
It all started when the welfare department called the ex-wife and said she was going to lose her food-stamps and medical card if she couldn’t prove the children resided with her. So she started with the idea that instead of sharing the children she would just keep them. She told him by text if he didn’t tell welfare that they were living with her than he would never see his children again.
For her it was about the incentive of money that the government gives based upon how many children you have. The whole notion of welfare reform from the 90’s never really happened. Monies were shifted around and on the streets it is easy to get the knowledge of what it takes to get an education grant, earned income tax credit from the IRS, free housing, daycare and a shopper’s bazaar of other entitlements benefits that go along with being cash poor but street smart.
John is a big man, used to working with his hands. He builds trailers for a living. There is nothing more he liked to do the take his son out to Truck Night. Mud and diesel exhaust made for a hundred smiles. His daughter is a sweetheart. How in just over a week did she go from being Daddy’s little girl to a daughter who wouldn’t talk to him?
What he didn’t count on was that the mother and her new boyfriend knew how to game the courts. The first rule is ‘just don’t show up’. The second rule was when you are finally served with papers, show up to court but then demand you need a lawyer and don’t understand anything. Even when the Magistrate told her she needed to get the kids back to the father, she simply refused.
Then she threw out the bomb. The black eye was caused by her ex, my client. She said he had come over when all the kids were asleep and punched her in the eye, squealed his tires and left. Her boyfriend with the history of restraining orders and doing hard time for felonious assault claimed he was out helping a half-brother fix a plumbing problem at 1 am when the fight on the porch happened. She wanted to use the domestic violence laws to protect her from her ex and force him to stay away from the children. She told the children what her ex had done to her and it got in their minds that they could be next. Then she coached the calls from the kids to the dad saying they hated him. Then there was a text message from the boyfriend showing the 8-year-old with an earring. The boyfriend knew that the picture would sting the hard-working metal worker. He would never have allowed an 8-year-old to have an earring. The ex-con boyfriend texted “it looks like me don’t it” It was a City thing. The ex-con then suggested maybe the boy was actually his.
From somewhere beyond his own knowledge my client found patience and resisted the urge not to strike back. Surely this would not stand. It was now 7 weeks during the summer and he had not seen his children. They also would call the paternal grandparents and say they hated them too. The grandfather had a face that looked like it had been made out of leather. When I asked him in Court the effect of not seeing his grandchildren; his toughness melted away and through tears he said he missed “his shadow”, his grandson. The grandmother could not hold back her rage and shouted to the Magistrate that if her grandchildren were being abused by anyone, there would be no need for a court. She would handle it herself. The neighbor from across the street came and in her 77th year of life testified in a court for the first time that something was terribly wrong. She had not seen those two sweet children playing in the yard all summer. What was right is right and she would be heard.
It all fell apart when the new boyfriend took the stand and couldn’t recall the address of the half-brother he went to help at the time that the mother was allegedly being punched by the father, my client. He didn’t know if the half bother had a telephone number and had since moved somewhere south. He also tried to convince the court that his felony record was all a mistake. He also thought it was important to tell the court how he had been shot up in his car while his own children were in the backseat. That had only been three months earlier.
I asked him if he hit the mother in the face and then worked with her to concoct a story that it was her ex-husband. He didn’t work and more money into the household was good for him as well. Of course he denied it. We introduced cell phone records that showed that the father was nowhere near her Westside home. Others came forward to say the father was in his truck all night. The court threw the domestic relations complaint out quickly. The Magistrate said she hardly believed anything the scheming couple had to say.
After seven weeks we were in front of another magistrate for the third time and this time the pile of lies was so great that the deputies were ordered to escort the children into the arms of the father. The grandparents were wet with tears. Everything that had been said was a lie.
It took hours and hours to get the father his children back. The cost in legal fees was enormous. The mother can only see them if there is supervision present. It is the rare parent or father who can muster the resources to mount a fight against false accusations. My client to me is a hero because he practiced patience when his world was collapsing. I would tell him that the courts will not allow a lie to live. I would give the advice that he would get his children back even when I began to question the process.
The mother hasn’t seen her children since. Therapy will be needed to bring the children back to normal. I am not sure I have ever had a more satisfying day then to see the children in the arms of the dad with the permanently greased hands. There is something special when you see such a strong man brought low by the loss of his children. They said horrible things to him during the time the mother was forcing the words of hate. He ended every conversation in the same way during that time period, “you know I love you and I will always be here.”
The mother perverted the domestic violence laws from that of a shield into that of a sword. I know she has lost her children for the time being but it seems like the Mother should be punished for her lies. She is a bust out and we cannot collect any money from her. Her abuse was a real as taking a stick and hitting her children.
Or maybe this should just be a tale of a father’s love being so strong that he would not be moved from running to his children.