NASGA blog ran an item on 2/24/09, "Introduction to the Problem," and links to an article "Tougher Penalties for Elder Abuse." There is additional information needed to clarify the legislation in question, which is not as good as appears on its face.
The article only mentions the Senate version of the Bill. Actually, there were two VERY IMPORTANT legislative Bills introduced last week in West Virginia regarding INCREASING PUNISHMENT already on the books for abuse, neglect, and misappropriation or misuse of funds involving elderly or incapacitated people. The first was H.B. 2607, introduced on 2/18/09. The next day, Senator William Laird introduced S.B. 294, subject of the newspaper article.
The purpose of both Bills was to increase the penalties for the financial exploitation of elderly persons and incapacitated adults.
A review and comparison of both versions gives us concern about what's missing from both Bills.
_Problem 1_:
The Senate version adds new sections for murder, neglect resulting in death, and sexual abuse - specifically by "a caregiver, guardian or custodian" - certainly important new law - but then excuses it if there is no "malice."
And it retains the same descriptive language - "a caregiver, guardian or custodian" - in the sections dealing with basic abuse and neglect.
BUT - and this is a BIG BUT - _*it seeks to delete (actually, strike out and remove from the existing law) the very same words "caregiver, guardian or custodian" from the section dealing with misappropriation** or misuse of funds or assets!!! *_
Is this not the most-needed legislation we are aware of to discourage fiduciaries from predatory action against their wards, especially in times of economic downturn? These are the very people who have direct access to and control over the assets, and who, if those descriptions in the Senate Bill are not specific, can be excluded from punishment for such misappropriation or misuse by one means or another!
_Problem 2_:
The remaining language of the Senate Bill - relating only to "Any person" - may appear to cover everyone (everything), but it does not.
__1. While "caregiver" and "custodian" are defined in Section (a) in both Bills, "guardian" is not defined in either Bill.
2. Both Bills also fail to provide for the fact that guardians are sometimes corporations, such as banks or nonprofits.
3. As a matter of law, a corporation, being a legal entity, is treated as an artificial "person."
4. With that understanding, "person" may seem to be adequate; however, in our experience with unethical lawyers and corrupt judges, there must be no "wiggle room"! There must be more clarity in the description and language of the Bills to avoid escape from punishment for wrongdoing of ALL court-appointed fiduciaries.
The House Bill does not have a death component. A definition of "guardian" needs to be added to Section (a) of the house Bill. Section (d) is fine, as is, because it includes "caregiver, guardian or custodian" and there is no effortto strike it as in the Senate version.
Written by a NASGA member
See also:
Senate Bill 294
House Bill 2607
The article only mentions the Senate version of the Bill. Actually, there were two VERY IMPORTANT legislative Bills introduced last week in West Virginia regarding INCREASING PUNISHMENT already on the books for abuse, neglect, and misappropriation or misuse of funds involving elderly or incapacitated people. The first was H.B. 2607, introduced on 2/18/09. The next day, Senator William Laird introduced S.B. 294, subject of the newspaper article.
The purpose of both Bills was to increase the penalties for the financial exploitation of elderly persons and incapacitated adults.
A review and comparison of both versions gives us concern about what's missing from both Bills.
_Problem 1_:
The Senate version adds new sections for murder, neglect resulting in death, and sexual abuse - specifically by "a caregiver, guardian or custodian" - certainly important new law - but then excuses it if there is no "malice."
And it retains the same descriptive language - "a caregiver, guardian or custodian" - in the sections dealing with basic abuse and neglect.
BUT - and this is a BIG BUT - _*it seeks to delete (actually, strike out and remove from the existing law) the very same words "caregiver, guardian or custodian" from the section dealing with misappropriation** or misuse of funds or assets!!! *_
Is this not the most-needed legislation we are aware of to discourage fiduciaries from predatory action against their wards, especially in times of economic downturn? These are the very people who have direct access to and control over the assets, and who, if those descriptions in the Senate Bill are not specific, can be excluded from punishment for such misappropriation or misuse by one means or another!
_Problem 2_:
The remaining language of the Senate Bill - relating only to "Any person" - may appear to cover everyone (everything), but it does not.
__1. While "caregiver" and "custodian" are defined in Section (a) in both Bills, "guardian" is not defined in either Bill.
2. Both Bills also fail to provide for the fact that guardians are sometimes corporations, such as banks or nonprofits.
3. As a matter of law, a corporation, being a legal entity, is treated as an artificial "person."
4. With that understanding, "person" may seem to be adequate; however, in our experience with unethical lawyers and corrupt judges, there must be no "wiggle room"! There must be more clarity in the description and language of the Bills to avoid escape from punishment for wrongdoing of ALL court-appointed fiduciaries.
The House Bill does not have a death component. A definition of "guardian" needs to be added to Section (a) of the house Bill. Section (d) is fine, as is, because it includes "caregiver, guardian or custodian" and there is no effortto strike it as in the Senate version.
Written by a NASGA member
See also:
Senate Bill 294
House Bill 2607
4 comments:
This is good information and I very much appreciate this member's perspective.
When bureaucracies including the state police cooperate to allow abuses, it is very difficult to even bring the predators to court.
If penalties increase, I believe it will be even more difficult to recognize the problem. Our statute of limitations is running out and we are still fighting. Supposedly a predator cannot not benefit from an estate of the abused. We'll see.
It's all in the wording -- what they say, what they don't say -- and what they leave out and few notice. I am glad this NASGA member is on the ball and saw what was missing!
This point by point disection is exactly what is needed pointing out what is written and more importantly what IS LEFT OUT.
Many times if not all of the time legislation is intentionally written for a hidden agenday; to look good on paper deceiving, fooling others, us the voters, into believing the legislation will benefit society.
I say ho ho ho. Just look at who is bankrolling the lawmakers!
Lobbyists (BRIBERY) and special interest groups bribe and wine and dine and gift the law makers to write laws in their favor with LOOPHOLES as big as SINKHOLES, so the weasels can slip right in.
We are not fools and know a smokescreen, smoke and mirrors, dirty hand tricks when we see it.
Thank you NASGA member for drafting this composition and thank you! NASGA blog for posting this where it will serve others.
Post a Comment