Mistreatment and Abuse by Guardians and Other Fiduciaries! EMERGENCY EMAIL: elder.justice@usdoj.gov

What is abuse by guardians?

While courts make efforts to ensure that guardians are trustworthy, some guardians have taken advantage of people in their care. The mistreatment could be financial, physical, emotional/psychological or any other type of abuse of an older person or person with a disability. Guardians also may neglect the people for whom they have a responsibility to provide care. These perpetrators of abuse can be anyone serving as a guardian (family members, trusted others, non-profits, professional guardians, agencies).

There is currently limited information on the number of guardianship cases involving abuse. The U.S. Senate Special Committee on Aging and the U.S. Government Accountability Office have highlighted the problem and cited anecdotal information. The National Center for State Courts has found that most reports on the problem of exploitation by guardians lack empirical data. Reports of fraud or other malfeasance by guardians have most often involved financial exploitation, but other types of mistreatment are also reported. Abusive acts by guardians may meet the definitions for various state and federal crimes, depending on the facts of the case. Guardians might be charged with such crimes as elder abuse, embezzlement, larceny, money laundering, theft, and neglect.

For an explanation of how guardianship can be a vehicle for abuse as well as a remedy, see the National Center on Elder Abuse issue brief, Guardianship: Remedy vs. Enabler of Elder Abuse.

To learn about how to spot mistreatment by a guardian and what to do about it, see the National Center on Elder Abuse flyer, What if Your Guardian is Not Doing What They Should?

How can the courts with jurisdiction over guardianship cases respond to abuse?

A court with jurisdiction over a guardianship case might uncover evidence of abuse through monitoring, or a person or government agency might need to file a complaint or petition the court to respond to the mistreatment. These courts can take the following types of actions:

Freeze assets and/or restrict accounts – Courts may take these actions to limit a guardian’s access to money and property while investigating a case or preparing to take another protective step.
Investigate allegations of malfeasance – Once allegations of abuse have been made, courts can appoint a guardian ad litem, investigator or visitor to investigate. A court can also audit an individual’s assets or order an accounting by an external entity such as a certified public accountant.
Order repayment for lost assets or property – Such orders might restore lost assets but, in many cases, the only way to recover funds is through a bond that the guardian obtained upon appointment. Sometimes courts do not require bonding when the guardian is appointed, making it more difficult to obtain repayment for losses at the hands of the guardian.
Enforce statutory rights to communication and visitation – When abusive guardians use isolation tactics, family members and others may be able to seek orders enforcing state laws that define the rights of people subject to guardianship to interact with others of their choosing.
Appoint a co-guardian or limit the powers of the guardian – This strategy may help deter or stop mistreatment by a guardian.
Remove the guardian – Removal may be the best way to stop guardian malfeasance, and petitioners might suggest a willing and suitable replacement.
Terminate the guardianship – Less restrictive options or changed circumstances might lead a court to terminate the guardianship entirely.

Besides courts with guardianship jurisdiction, who can address abuse by guardians?

Numerous federal, state, and local government entities and non-profit agencies can respond and provide services when someone suspects that a guardian is mistreating an individual. Although the court has the sole power to impose certain orders such as removing the guardian or surcharging bonds, other entities can get involved and assist victims. These include:

Adult protective services – Anyone suspecting mistreatment by a guardian should report to adult protective services. Find your state or local adult protective services agency through the Eldercare Locator. Most states have laws making certain categories of people mandatory reporters of elder or vulnerable adult abuse.
Protection and advocacy systems – Protection and Advocacy Systems are federally-mandated state-based organizations that work to protect the rights of people with disabilities, including guarding against abuse. Find your protection and advocacy agency here.
Long-term care ombudsmen – If the individual resides in a nursing home (or, in some states, receives home- and community-based services), the long-term care ombudsman can investigate and resolve complaints about abuse, neglect, and exploitation, including complaints about guardians. Anyone can file a complaint, but the resident (or an appropriate representative) must consent in order for the ombudsman to investigate and share information. Learn about the ombudsman program here and find your local ombudsman.
Law enforcement – A guardian’s breach of duty may violate criminal laws and warrant investigation and prosecution. In addition to reporting to Adult Protective Services, individuals suspecting guardian abuse should report it to law enforcement. Contact your local law enforcement agency, your state attorney general, or call 911. Some recent examples of guardianship fraud cases pursued by the United States Department of Justice include cases in Pennsylvania and Florida.
Attorneys – Separate from the guardianship system, there are various civil actions that may apply to abuse by guardians. Depending on state law, civil attorneys might bring cases alleging breach of fiduciary duty, breach of contract, fraud, undue influence or a private right of action for elder abuse. Remedies might include restitution (repaying money lost), voiding documents including deeds, or other monetary awards of damages.
Federal agencies – If the guardian also serves as a Social Security representative payee or VA fiduciary and is misusing public benefits, individuals may report to the Social Security Administration Office of the Inspector General or the VA Office of the Inspector General.
Professional licensing boards – In some states, professional guardians may be certified, licensed or registered. State boards can investigate and may revoke a license or certification. If the guardian is a lawyer, the state has a committee that takes disciplinary action when a lawyer violates professional responsibilities.

What is power of attorney abuse?

Powers of attorney give a trusted person (the agent) a great deal of authority and access to money and property, without regular oversight. Power of attorney abuse can take many forms. The agent might spend the individual’s money on items for his or her own use rather than for the individual’s needs. The agent might do things that the document doesn’t allow, such as making gifts when that power hasn’t been granted. The power of attorney document itself might be forged or fraudulent in some other way.

State laws may help to prevent or limit power of attorney abuse. For example, the Uniform Power of Attorney Act, adopted in over half the states, permits a third party such as a bank to refuse to honor a POA when the abuse is suspected, and the third party reports it to an adult protective services agency.

What are the remedies to address power of attorney abuse after it occurs?

Lawyers may help people to stop power of attorney abuse and to get money back that has been improperly taken by the agent. For example, a lawyer could:

Draft a document to revoke (cancel) the POA
Ask a court to require the agent to file an accounting to see how the agent has spent the money
File a civil action to cancel contracts or deeds that the agent should not have made
File a civil action to recoup money
Petition a court to appoint a guardian who can manage the finances if the individual is unable to manage money independently

In addition, agents under a POA may be prosecuted for abusing a power of attorney. Depending on state criminal law, power of attorney abuse might be theft, fraud, embezzlement, money laundering, exploitation or another financial crime. Through the criminal court process, a prosecutor could ask the court to freeze the individual assets to prevent further abuse and could also seek restitution (repayment of money taken).

What do we know about abuse by government fiduciaries?

Reports from the Social Security Advisory Board, the Office of the Inspector General for the Social Security Administration, the Government Accountability Office, the National Academy of Sciences and other government and quasi-governmental entities over the past fifteen years have documented abuse by both individual and organizational representative payees. These incidents have prompted removal of payees from the program and, in some cases, criminal prosecution. The Office of the Inspector General for the Department of Veterans Affairs also has investigated and substantiated allegations of abuse by VA fiduciaries.

Updated October 9, 2024

A former judge, a Coral Gables attorney and a Broward thief among lawyers disciplined BY DAVID J. NEAL

We have recently received a complaint against Joseph “JB” Bensmihen who has become president of the Florida State Guardianship Association ( FSGA ).

The FSGA is approximately 500 members strong and includes guardians, attorneys, care providers, fiduciaries, social workers, nurses, court and clerk staff, and many other disciplines. They have a statewide presence through their 16 chapters and its members meet regularly for education, training, networking, and development in their own communities.

“Being a guardian is a responsibility that must be taken seriously,” said Bensmihen, president and CEO of Apollo Mediation Group ( AMG ). “An educated and proficient guardian understands it is a fine line between self-determination and self-neglect. The role of the guardian is to allow the person to navigate their life under guardianship yet only step in to facilitate what is needed, allowing those who can do for themselves to do for themselves.”

Bensmihen has been a Florida Registered guardian with Florida’s Department of Elder Affairs since 1998. He is also certified in elder caring coordination, circuit civil and family mediation by the Supreme Court of Florida.

The Florida State Guardianship Association is “dedicated to the protection of the dignity and rights of incapacitated persons and to increasing the professionalism of guardianship.” FSGA promotes increasing training and education for all those involved in the guardianship process such as family guardians, clerks and court personnel, and examiners, attorneys, and judges.

http://abcactionnews.com › 77-page #guardianship investigation exposes lack of oversight
Investigation of #TraciHudson’s 45 #guardianshipcases ordered by a #judge revealed issues sales of real estate, purchases of burial plans for wards #AdamWalser

Contact: adam.walser@wfts.com

A former judge, a Coral Gables attorney and a Broward thief among lawyers disciplined BY DAVID J. NEAL UPDATED AUGUST 07, 2024 1:16 PM| Absconding with money from an estate and letting assistants do a Lemon Law lawyer’s job are just two of the reasons lawyers from Miami-Dade, Broward and Palm Beach counties wound up on the monthly Florida Bar report of attorneys disciplined by the state Supreme Court. In alphabetical order: DEBBIE CAMPBELL, CORAL GABLES Svetlana Kozlovskaia filed a Florida Bar complaint about Coral Gables attorney Debbie Campbell, alleging misappropriation of funds and other ethical violations. On Dec. 26, a subpoena demanded Campbell get the Campbell Legal Group’s trust account records from Jan. 1, 2019, through Nov. 30, 2023, to the Florida Bar by Jan. 19. A week after the deadline, Campbell asked for an extension, arguing “proper due process” required she get a lawyer to help with the records, and “compressed trial dates and overburdened dockets” made lawyers hard to find in January. She got an extension, but still didn’t come across with the records demanded. Coral Gables attorney Debbie Campbell The Florida Bar The Bar filed a petition for contempt on March 27. After an extension, Campbell answered on May 6 that she’d told the Bar she wanted to “immediately begin the process of entering a consent judgment, the procedures for making an admission of minor misconduct, and engage in all efforts to settle the matter.” That offer to end the original case with a guilty plea for consent judgment was rejected by the Bar because Campbell still “has provided no documents in response thereto, even after being placed on notice of the instant contempt proceedings. [Campbell] has shown no good cause for her failure to respond to the subpoena served on her last year.” Campbell is suspended until she satisfies the subpoena. READ MORE: ‘Competence’ violation among reasons South Florida attorneys got suspended, disbarred TODD HERMAN, FORT LAUDERDALE Fort Lauderdale’s Todd Herman was suspended in October for ignoring three Florida Bar grievances. On Nov. 22, came another accusatory shot, this one from Luis Perez. “I am requesting an investigation on my former attorney, Todd Herman, for his actions once the lawsuit was settled,” Perez wrote to the Bar. “Todd Herman kept the compensation to himself despite it originally being for my medical expenses. The total compensation for the lawsuit was $10,000. As of, today, I still have yet to receive a penny for compensation for medical expenses. It is important to note that Todd Herman was absent for all three court hearings regarding the location of the compensation and rationale for his actions.” Todd Herman The Florida Bar Travis Stultz of Weinstein Legal, who took over as Perez’s attorney, wrote to the Bar that when he requested Perez’s file from Herman in May 2022, Herman didn’t say anything about the $10,000 he deposited in 2020. “The medical payments coverage payment was not discovered until it was mentioned by defense counsel on Nov. 7, 2022,” Stultz wrote. “Since that date, we have made multiple attempts via email and phone calls. We even stopped by his office In an attempt to retrieve these funds that are due to Mr. Perez. We sought court intervention; however, Mr, Herman did not respond to the court’s order requiring him to provide our firm with the $10,000 due to Mr. Perez, Mr. Herman was ordered to appear and Show Cause on Jan. 27, 2023, but did not appear for the hearing on April 5, 2023.” The Bar said Herman hasn’t responded to anything about this grievance, so he’s suspended for this contempt of court also. JOHN SPENCER JENKINS, FORT LAUDERDALE No one knows the whereabouts of John Jenkins, aka Spencer Jenkins, who worked out of Fort Lauderdale and Wilton Manors. Not the Florida Bar, which didn’t get an answer from Jenkins to any of the below grievances that were filed. Not Peter Mullins, who got a $235,600 malpractice verdict against Jenkins for malpractice after Jenkins abandoned a federal court case in which Mullins was a defendant. Mullins said Jenkins was recommended to him by Fort Lauderdale Mayor Dean Trantalis, who said he knew Jenkins for about 10 years. Trantalis told the Miami Herald he probably recommended other attorneys, too, but definitely had recommended Jenkins to several people. “Spencer was an excellent, rising attorney. I thought he would be an important part of our community. I didn’t know about any of this until I read the story yesterday.” Nobody in the family of William Walters, whose estate Jenkins misappropriated to the tune of $612,507, knows where Jenkins is, either. READ MORE: He misappropriated $612,000, owes another former client $235,000 and has disappeared Wherever Jenkins is, he’s permanently disbarred. John Spencer Jenkins aka “Spencer” The Florida Bar MIGUEL MIRABAL, CORAL GABLES Coral Gables attorney Miguel Mirabal, aka Mike Mirabal, a member of the Florida Bar since 2004 with a clean record, badly wanted to be a judge. Mirabal ran for a Miami-Dade court seat in 2018, applied to the Judicial Nominating Committee to fill a Miami-Dade court vacancy in 2019 and ran again to be a County Court judge in 2020. Mirabal triumphed in that last election, was sworn in Jan 4, 2021, but resigned April 20, 2021, after a Judicial Qualifying Commission began an investigation. “In each of his three attempts to join the judiciary, [Mirabal] reported inaccurate information and/or made omissions, under oath, in the papers he submitted,” Mirabal’s guilty plea for consent judgment said. He did so, “specifically, in his judicial application, his financial disclosures and/or his certified monthly campaign finance reports.” The consent judgment proposed a 90-day suspension followed by 18 months of probation. The referee, Judge Daniel Casey, influenced by Mirabal’s resignation, accepted the proposed punishment, though he said he “struggled with the propriety of the proposed resolution of this matter, given the multiple, serious and continuous actions alleged…” What Casey struggled to accept, the state Supreme Court had no problem rejecting. The court kicked the case back to Casey. Casey’s amended report recommended disbarment. Casey wrote after the rejection: “I have held a full hearing in this matter, which has revealed the full nature of [Mirabal’s] conduct, causing me to change my recommendation.” Mirabal’s misconduct, Casey wrote, “maintained a consistent pattern of disregarding honesty and integrity in ways that [Mirabal] believed would be to his benefit.” Also, Mirabal was accused of threatening a grievance against Miami-Dade County Judge Milena Abreu, who made the original complaint, “in an attempt to intimidate and silence her,” the Bar said. Miguel Fernando Mirabal The Florida Bar In a June 2023 brief, Mirabal’s lawyers, Kevin Tynan and Herman Russomanno, argued Casey’s disbarment recommendation wasn’t “supported by the record,” especially Mirabal’s “lack of a prior disciplinary record, overwhelming character testimony, the imposition of other penalties (including resigning from the bench), and his deep remorse for his actions.” They argued a one-year suspension would fit, three years at the maximum. The state Supreme Court chose a different maximum and accepted the disbarment recommendation. FRANK NOSKA, PALM BEACH According to the first Bar grievance filed against Palm Beach’s Frank Noska, Noska brought in attorney Cris Boyar to help with Chris Thompson’s lawsuit against Geico. But Noska said he’d handle all communication with Thompson. Geico won the case and was awarded attorney’s fees. After the decision on attorney’s fees, Boyar tried to reach Noska with no success. “Mr. Boyar then contacted Mr. Thompson, who advised that not only had he not heard from [Noska], but he did not recall giving [Noska] authorization to litigate the case and had no knowledge of the status of the case,” the Bar complaint said. Boyar also filed a grievance against Noska, a member of the Bar since 1982. Noska responded to neither grievance, got suspended in July 2023 and, now, is disbarred. BROOKS SIEGEL, NORTH MIAMI BEACH Brooks Siegel, who is also a member of the Arizona Bar, is the registered agent for Lemon Law Group Partners, Jason Hedgedus’ law firm that operates out of North Miami Beach. What follows occurred in 2021 during the same month Siegel got a public reprimand for similar treatment of a Lemon Law Group client. READ MORE: Stealing money, ignoring clients and other misdeeds by Miami area attorneys Siegel’s guilty plea says when Arizona resident Brenda Arechiga called Siegel for a Lemon Law claim, she got a staffer in Florida. A fee agreement was signed without speaking to Siegel or any attorney, but an Aug. 20, 2021, email to Arechiga said Siegel was her attorney. Without Siegel or anyone else speaking to Arechiga about case goals or a demand letter, a legal assistant sent an Aug. 31, 2021, email to Dodge Motors for Arechiga that offered to settle the case if Dodge bought the car back and paid attorneys fees and costs. Arechiga asked for a case update on Sept. 7 and got a Sept. 9 response from staff member “Maria” that Dodge Motors had “finally responded.” On Oct. 13, 2021, Arechiga asked what was happening, as she hadn’t heard anything in six weeks. Dodge Motors offered, on Oct. 26, 2021, to settle for $4,000. “Maria” told Arechiga if she accepted the offer, she’d get $1,000 and the firm would get $3,000. Arechiga rejected that idea and fired the firm “without ever speaking with [Siegel] or any lawyer.” This violated Florida Bar rules of competence; diligence; communication; and “responsibilities regarding nonlawyer assistants.” Siegel got a reprimand in Arizona and agreed on Jan. 25, 2023, to refrain from practicing there for two years. In Florida, on June 27, Siegel got a public reprimand and an order to attend ethics school before Dec. 27. North Miami Beach attorney Brooks Siegel The Florida Bar This story was originally published August 7, 2024, 11:22 AM. DAVID J. NEAL MIAMI HERALD 305-376-3559 Since 1989, David J. Neal’s domain at the Miami Herald has expanded to include writing about Panthers (NHL and FIU), Dolphins, old school animation, food safety, fraud, naughty lawyers, bad doctors and all manner of breaking news. He drinks coladas whole. He does not work Indianapolis 500 Race Day. JOIN THE CONVERSATION FOLLOW THIS CONVERSATION TO BE NOTIFIED WHEN NEW COMMENTS ARE POSTEDFOLLOW Anyone can read the comments, but you must be a subscriber or logged in with a registered account to contribute. If you do not have a registered account, you can sign up for one below (it’s free). LOG INSIGN UP Conversations are opinions of our readers and are subject to the Communit

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