November 2022

Guardship Pitfalls

November 4th, 2022
by William Erhart
Recent cases from across the country illustrate how exciting these ordinarily mundane matters can become.
Due Process violation in Florida against Spouse

After she had a stroke, George Leposky's wife moved to an assisted living facility. Thereafter, she filed for divorce. George's response was to ask the court to declare her to be incapacitated, which it did, appointing a limited guardian for her. The limited guardian sought and was granted a temporary injunction freezing several of George's bank accounts, arguing that George had transferred funds from joint accounts into his sole name. At the hearing on the injunction, his attorney made some arguments, but George was not allowed to testify or present evidence. The judge informed him that it was not an evidentiary hearing. The court granted the order in an oral ruling from the bench. On appeal, the court agreed with George that the lower court made no findings on any of the four parts of the test for a temporary injunction. In addition, the court did not require a bond. Finally, the lower court violated George's due process rights when it refused to allow him to testify or present evidence.
Leposky v. Ego, FLA. APP. Oct. 14, 2022
Criminal Conviction for Exploitation

Christine Vanderford developed a close relationship with J.R.K. and her family through her representation of the family in establishing J.R.K.'s guardianship and drafting a self-settled special needs trust to protect an inheritance J.R.K. received. Following the death of J.R.K.'s mother, Christine became a co-guardian, along with J.R.K.'s stepfather; the trust was amended to name Christine as a co-trustee. The group home where J.R.K. was living raised concerns when they noticed a decrease in the value of J.R.K.'s accounts and called Adult Protective Services (APS). Following an investigation, APS turned the matter over to the police who brought charges of exploitation of a vulnerable adult and theft against Christine. Among the allegations were that Christine paid herself fees of over $65,000 without court approval. She waived her right to a jury trial and was convicted and sentenced to five years of probation. On appeal, Christine argued that the lower court failed to make sufficient conclusions of law when rendering the verdict and that the evidence presented against her proved neither that the transactions were unauthorized, nor that Christine had the intent for a breach of fiduciary duty to rise to the level of criminal exploitation. The appellate court upheld the conviction, finding that her act of knowingly misappropriating the assets of a protected person proved sufficient criminal intent to warrant a criminal conviction.
State v. Vanderford, NEB. Oct. 14, 2022
This unusual opinion consolidated two cases, both involving guardianships established for victims of car accidents and Michigan's no-fault insurance system. At issue in each case was how the court-appointed guardian used members of his law firm staff to provide certain services, such as coordinating medical appointments and paying bills. When the insurance companies were invoiced for the services, they refused to pay, arguing that the services were not provided by the guardians themselves. Under Michigan's guardianship statutes, a guardian may delegate their powers for up to 180 days in writing. Because the guardian in these cases did not formally delegate his duties, the insurance company argued that the services were not part of the guardianship. The appellate court made a distinction between a guardian's duties and a guardian's powers. The statute governs the delegation of powers, which are the responsibilities for the care of the protected person and the control over the protected person and their assets. A guardian’s duty to undertake actions to carry out those powers are separate from the duties. The court makes it clear that actions can be delegated as long as the actions do not "alter the rights, duties, liabilities, or other legal relations" of the protected person. In one of the two cases, the court found that the delegations were appropriate. In the other case, there were issues of fact as to the delegations that need to be determined by the lower court.
Guardianship of Malloy, MICH. APP. October 13, 2022
In Delaware, the result would likely be the same, but for slightly different reasons, since Delaware’s guardianship statute is different than Michigan’s. In Delaware the guardian may hire professionals on behalf of the person with a disability. 39 De. C. § 3921. It is contemplated that the guardian will use others with specific expertise to discharge the duties of the guardian, without releasing the guardian from the responsibility. 12 Del. C. § 3922.

Closed for the holiday
November 24th & November 25th


November is Alzheimer’s Awareness Month.

An estimated 6.5 million Americans, 65 and older, had Alzheimer's dementia in 2021, including 180,000 in North Carolina alone, according to the the Alzheimer’s Association . It is estimated that this number will rise to 210,000 by 2025, the Alzheimer’s Association.

In North Carolina, 356,000 caregivers provided a total of 514 million hours of unpaid care, valued at a total of $7.3 billion, according to the Alzheimer’s Association.

Families can change their homes and environments to make life more comfortable for loved ones with Alzheimer's dementia, according to the Alzheimer’s Foundation of America.

“Most homes were not designed with the needs of someone living with a dementia-related illness in mind, but virtually every aspect of a home can affect the person’s quality of life,” said AFA President & CEO Charles J. Fuschillo, Jr.

Here are some tips from the Alzheimer’s Association and AFA to make life more comfortable for families who have a loved one with Alzheimer's dementia.

Color Choices

Colors can be used to help with mood, according to AFA. For bathrooms, bedrooms or lounge areas, the color blue can have a calming effect while brighter colors like red, purple, and orange can be stimulating.

Contrasting colors can help with vision, depth perception, and spatial orientation, according to AFA. One way to incorporate contrasting colors is through dishware that contrasts with the tablecloth color, making it easier for someone with dementia to see the food on the plate.

Visual Cues

Decor and photos can serve a purpose beyond making a home beautiful, they can promote familiarity, aid with mood and assist with memory recall, according to the AFA. Here are some ways to use simple items to help with memory recall.
  • Put labels on dresser drawers with the name of the contents.
  • Add photos or keepsakes that evoke positive memories.
  • Add orienting items like an easy-to-understand clock and calendar.

Safety First

Safety is any caregiver's first priority when taking care of a loved one. Here are some easy safety precautions to take around the house.

  • Prevent falls by avoiding scatter. Items such as rugs and extension cords cause falls. Install handrails or grab bars in critical areas.
  • Installing locks on cabinets that contain anything potentially dangerous, such as medicine, alcohol, guns, toxic cleaning substances, dangerous utensils, and tools.
  • Check water temperature. Lower the thermostat on the hot-water heater to prevent burns.

Embrace Technology

Technological tools can give extra support to care partners, even remotely. Interactive virtual assistants allow caregivers to schedule reminders for meals and medication that can be audibly heard.

Another way to use tech to help care for a loved one with dementia is apps. Families can use apps to check thermostats, program and change the temperature remotely or use smart smoke/carbon monoxide alarms, which can be programmed with friendly human voices, according to the AFA.