A truthful blog dedicated to the loving memory of my grandmother, Catherine DeMartini, who is another innocent victim of greedy conservators and their even greedier attorneys who monopolize over 40% of the conservator business in our beautiful City by the Bay!
Monday, July 4, 2011
The Role of the Court Appointed Attorney
I found the following information at CANHR's (California Advocates for Nursing Home Reform) website. The data is taken from a report called Conservatorship Reform in California. See below for link.
In California, the protection of a conservatee's rights depends heavily on the performance of the court appointed attorney. The probate court appoints an attorney if it determines the appointment would be helpful to the resolution of the case or if it is necessary for the protection of the conservatee's interests.
The Rules of Professional Conduct published by the State Bar of California outline the legal counsel's role during the conservatorship process. Most importantly, the court appointed attorney must abstain from advancing any interest adverse to his or her client. In general, the attorney must work to ensure that the court only grants a conservatorship when it is the least restrictive means for caring for the conservatee and when the burden of proof has been met. In this respect, California probate code establishes that the standard of proof for the appointment of a conservator pursuant to this section shall be clear and convincing evidence.
Probate proceedings must ensure due process rights. Procedural protections are essential to conservatorships as conservatorship is one of the most severe restrictions allowed on one's liberty or property. The U.S Constitution in its Fifth and Fourteenth Amendments establishes due process rights. The California state constitution does so in Article 1, Section 7 (a): "No person shall be deprived of life, liberty or property, without due process of law."
After reading this report, it became clear that my Grandmother's rights were SERIOUSLY violated because her court appointed attorney failed to protect her.
List of Violations...
1. Catherine DeMartini did not attend any of the scheduled hearings regarding her conservatorship. If she was not able to attend due to an illness, California Probate Code 2253 (e) states:
"If the conservatee is unable to attend the hearing because of a medical inability, that inability shall be established (1) by the affidavit or certificate of a licensed medical practitioner."
No such affidavit or certificate was filed and Catherine DeMartini was denied access to the proceedings. Her court appointed attorney should have protected her interests.
2. California Probate Code requires that a hearing be held to determine whether or not a potential conservatee is incapacitated. There was no hearing to determine Catherine's condition, and her court appointed attorney should have protected her interests.
3. Catherine DeMartini was prescribed Haldol which is a psychotic drug that requires court authorization. This authorization was never obtained, and Catherine DeMartini's court appointed attorney should have protected her interests.
4. On September 3, 2009, Commissioner Sue Kaplan ruled that Catherine DeMartini could not be moved without a court order yet Herb Thomas moved Catherine DeMartini to Laurel Heights Convalescent Hospital. Mr. Feder was aware of the court order but did not protect Catherine's rights.
In addition, Probate Code requires that the conservator(s) notify the court within 30 days of a move from the conservatee's residence. Notification was not filed with the court for FOUR months. Mr. Feder was aware of this requirement and did nothing to protect Catherine DeMartini's interests.
Finally, and most important of all, California Probate Code states the following:
"It shall be presumed that the personal residence of the conservatee is the least restrictive, appropriate residence of the conservatee. In any hearing to determine if removal of the conservatee from his or her personal residence is appropriate, that presumption may be overcome by a preponderance of evidence."
There was no hearing to determine if Catherine should be removed from her home of 80 years. Mr. Feder once again looked the other way and did nothing to protect Catherine's interests and legal rights.
5. While at Laurel Heights, Catherine DeMartini was denied access to:
Her personal physician of 20 years, Dr. Adam Bellamy
Her religious beliefs were ignored and denied.
6. During the conservatorship, Catherine was denied the following rights:
Right to receive mail
Right to visits with family members
Again, Bruce Feder did nothing to protect Catherine's legal rights and ignored what was in her best interest.
7. Bruce Feder breached his fiduciary duty to Catherine DeMartini. Knowing Catherine DeMartini suffered from severe dementia, and even after receiving the neurological report from Dr. Mueller, he ignored the fraudulent changes that were made to her Trust by Thomas DeMartini in April of 2009. These changes contained 3 forged trust documents which have been substantiated by two forensic handwriting specialists.Bruce Feder did not act appropriately by not advising the court of the situation and acting in Catherine’s best interest.Catherine’s wishes were clearly communicated during the period she was competent.Rather than looking after Catherine’s best interests, he was only concerned with the interests of Siracusa, Adler, Thomas, etc.
8. Feder was aware of Lori DeMartini's request for documentation regarding the two caregivers assigned to Catherine DeMartini by Herb Thomas. Mr. Feder did not pursue the definite possibility that the workers were undocumented, did not have insurance, were licensed, etc. Lori DeMartini's concern was the result of a reported incident where one of the caregivers drove up onto the sidewalk with Catherine in the car and almost ran over two pedestrians.
9. Bruce Feder allowed Kristine Wright a convicted felon with no high school diploma and a history of elder abuse care for Catherine DeMartini. Kristine Wright was convicted of forgery. Three of Catherine's Trust documents were forged on April 24, 2009 and her declaration supporting Thomas DeMartini's case against Lori DeMartini was also forged.
10. Feder denied visits with Catherine for Paul and Lori DeMartini based on the hearsay of Herb Thomas and Elizabeth Adler. Again, Feder denied Catherine her legal rights.
11. Catherine DeMartini's worst fear was to die in a nursing home. There is absolutely no medical reason she could not have been brought back to her own home. Bruce Feder allowed Catherine to die in a disgusting nursing home that is being investigated by the State of California.
12. Bruce Feder allowed the attorneys and conservators assigned to this case to violate Catherine DeMartini's legal rights over and over again.
Mr. Feder stated in court on April 13, 2011 that he recently visited Catherine on 3 separate occasions and that he held her hand. I saw the visitor log, Mr. Bruce Feder!