Guardianship is supposed to be a legal tool, but many nursing homes are abusing it. My Elder can help your family avoid this tragedy!
Nursing homes in New York State have been accused of using ‘guardianship petitions’ as a means to coerce elderly residents into paying outstanding fees.
A startling expose in the New York Times this week discusses a number of instances where nursing homes have requested courts to transfer guardianship away from the family. Ostensibly these requests are prompted by family feuds, suspected embezzlement or just the absence of relatives to help secure Medicaid coverage.
However, judges, legal experts, and others well versed in the guardianship process claim that often the petitions are used as a means of duress.
In a guardianship case last year involving a 94-year-old resident in a Jewish aged care facility, New York Supreme Court judge Alexander John Hunter issued a scathing 11-page critique of the motivations behind the petition made by the nursing home’s management.
In a more recent case, this time involving a family who refused to pay exorbitant rates to a Catholic nursing home, a court evaluator threw out the guardianship petition and questioned the motivations of the facility. The family spent US$10,000 in legal fees fighting the case.
Some nursing homes argue that guardianship petitions are the best way to resolve disputes about payment for care. The alternative is to sue an incapacitated resident who cannot respond.
“When you have families that do not cooperate and an incapacitated person, guardianship is a legitimate means to get the nursing home paid”, said Brett D. Nussbaum, a lawyer for the Catholic nursing home Mary Manning Walsh.
Article published without the permission of the Author. To continue reading on My Elder, click here.
DAN GERTLER, MAGNITSKY, JUNE 15, 2018 AND A SET OF ANNOUNCEMENTS
We reiterate that this is an opinion based upon research, public filings and other information available online as well as a wide array of analyses. Our contentions are not to be taken as doctrine. They are opinions.
Within that Opinion, we also commented on the date of Glencore’s victorious well-publicized announcement, made on June 15, 2018 and the significance of that date. On that date Glencore proclaimed that it had resolved payment issues with Dan Gertler. Those payment issues were adversely affecting shareholders in Glencore, a publicly traded company; and following that announcement shareholders celebrated. Dan Gertler was allegedly due hundreds of millions of dollars which were being tied up; and the uncertainty was holding the stock price hostage. The announcement set it free.
We remarked that in the context of those June 15 announcements, Glencore along with the help of the US and Swiss governments, had come up with a workaround that would allow them the ability to pay Gertler without violating the Magnitsky Act sanctions. What was remarkable to us was another announcement made on the same exact day as the Glencore announcement.
And here is where we made an error. We mistakenly stated that both the Glencore Announcement and the US Treasury Magnitsky Sanctions were announced on the same day. We were unequivocally mistaken as to the dates. The announcement of that day, June 15, 2018 by the US Treasury, were the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) Sanctions.
Indeed, Magnitsky had been announced by the Department of the Treasury on December 17, 2017, seven months earlier. For your perusal we have posted the Magnitsky Sanctions Notice below and highlighted the relevant section.
The Treasury Department announcement we posted yesterday was actually the announcement of the OFAC sanctions against entities related to Dan Gertler.
The Magnitsky Act, formally known as the Russia and Moldova Jackson–Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, is a bipartisan bill passed by the U.S. Congress and signed into law by President Barack Obama in December 2012, intending to punish Russian officials responsible for the death of Russian tax accountantSergei Magnitsky in a Moscow prison in 2009.
Since 2016 the bill, which applies globally, authorizes the US government to sanction those who it sees as human rights offenders, freeze their assets, and ban them from entering the U.S.
The main intention of the law was to punish Russian officials who were thought to be responsible for the death of Sergei Magnitsky by prohibiting their entrance to the United States and their use of its banking system. The legislation was taken up by a Senate panel the next week, sponsored by Senator Ben Cardin, and cited in a broader review of the mounting tensions in the international relationship. Browder later wrote that the Magnitsky Act found quick bipartisan support because the corruption exposed by Magnitsky was blatant beyond dispute, and “[t]here wasn’t a pro-Russian-torture-and-murder lobby to oppose it.”p. 329
In November 2012, provisions of the Magnitsky bill were attached to a House bill (H.R. 6156) normalizing trade with Russia (i.e., repealing the Jackson–Vanik amendment) and Moldova. On December 6, 2012, the U.S. Senate passed the House version of the law, 92–4. The law was signed by President Barack Obama on December 14, 2012.
In 2016, Congress enacted the Global Magnitsky Act, which allows the US government to sanction foreign government officials implicated in human rights abuses anywhere in the world.
Generally speaking, the Magnitsky Act is intended as a means to control the flow of money generated from activities that violate human rights. While arguably Dan Gertler is not a “government official” as strictly defined by the Act, his place in the morally challenged list of Magnitsky sanctioned individuals is his connection to Joseph Kabila’s activities in the Democratic Republic of Congo. The DRC is not the only mineral wealthy impoverished nation where Gertler’s activities provide a thriving source of profiteering.
In no uncertain terms, businesses and partnerships that profit from digging and mining in the DRC (amongst others) while the Congolese people work in deplorable conditions, starve, have little to no access to healthcare and suffer all manner of indignities fit the definition for Magnitsky Act purposes. Whether or not Gertler got a fair shake is up to his attorneys to litigate. Alan Dershowitz, one of Gertler’s attorneys/lobbyists has commented that he believes that Gertler is being wrongly sanctioned. He may be right. That’s for him to defend.
But if you assume for a second that the Sanctions are a form of justice, we find ourselves asking how Gertler has been able to walk sanctioned waters without drowning. It is inconceivable that he has not had a top official negotiating to part those seas. That is the genesis of this opinion.
In theory, if the Magnitsky Act were to be applied in spirit (and not just in faulty drafting), it would prevent someone engaging in any activities profiting from human rights abuses to have access to any capital, regardless of currency. Unfortunately, the Magnitsky Act, like many other US laws, their related acts or sanctions, have loopholes. The Magnitsky Act has no shortage of holes for educated treasure-hunters and they are best manipulated, like many US finance and tax laws, by the uber-wealthy. Mere mortals simply don’t have the advantages of lobbying teams. The loophole within Magnitsky that Glencore and Gerler were able to circumvent was the focus on business transacting and rendering payment in US Currency – the Dollar, the ever famous Greenback.
As we understand it, under Magnitsky a payment not made through a US company and/or in US Dollars, does not trigger sanctions. And, well… human rights be damned. Such is the case with the Glencore deal.
The US government, the Swiss government and others structured an artfully created carve-out that allowed Glencore to be unencumbered by its association with Gertler, allowed Gertler to retain access to hundreds of millions of dollars allegedly due and owing to him and provided Glencore’s shareholders some comfort. Our view is that someone with a savvy sense of finances, the law and intergovernmental relationships was responsible for orchestrating the shifting tides, lobbying the US President to sign the OFAC paperwork on a particular date, and drafting and negotiating the Glencore/Gertler payment deal. In our opinion, the person or people had to have a vested financial interest in the outcome of those negotiations, enough legal savvy to understand the nuances, enough inside information into Glencore’s activities and the ear of the US Government.
The timing of the OFAC announcement on the same day as the Glencore announcement was either a really stupid mistake made by super savvy business-people, a misunderstanding, a Glencore leak or a poorly timed coincidence. We do not believe in coincidences.
To the OFAC announcement, Consistent with Magnitsky Act, OFAC can also block the transfer of assets between related entities of those individuals sanctioned under Magnitsky. In Gertler’s case, the “not exhaustive” list which OFAC announced on June 15, 2018 includes entities with which Gertler is associated; and as of June 15, 2018 the list of entities had been expanded to 34. Interestingly, Glencore, which has acknowledged time and time again a partnership with Gertler, has not had its assets frozen under OFAC.
That simple reality makes us wonder, who in the US government, the Treasury Department, the “Powers that Be” in these decisions has money invested in Glencore, a publicly traded company, such that Glencore has so far escaped unscathed and is, indeed, able to both continue to transact even with its associations to Gertler, and to pay Gertler, so long as those payments are not rendered in US Dollars. It is also able to continue its own mining activities unhindered.
Moreover, and perhaps more interesting, we note that regardless of which notice circulated on June 15, 2018, it is utterly inconceivable whomever negotiated that deal did not know the sanctions were coming down the pipeline and was not working on behalf someone with a vested financial interest. The shares of stock, as far as we have seen, went wild during the week immediately following the announcement.
To our view, there are two other very interesting points that can be made here. First, why was Glencore not itself sanctioned under the US Treasury’s announcement of June 15, 2018? It would seem that if the US Treasury sanctions were worth their weight in salt where Gertler is concerned, Glencore should have had its assets frozen with the 34 other Gertler associations. We are sure there are a valuable set of reasons why Glencore did not meet the criteria; but we can’t think of any.
Second, are there not tax implications of a decision to exclude payments under Magnitsky?
By our analysis (and it could be wrong), Magnitsky Act money, being money generated in US Dollars, is taxable under US tax laws. It is deemed a part of the long-arm jurisdiction of the US tax system, however much we may disagree with that long-arm. In contrast, once money is deemed to be outside of the scope of Magnitsky, that money is likely also outside the scope of the US Department of Finance’s taxing authority.
As such, it is our belief (and we could be wrong), that not only did Gertler and Glencore’s negotiator find a loophole to allow payment to Gertler, but also found a loophole for Gertler to avoid paying US taxes on this money. Moreover, we are guessing that he has also managed to skirt paying taxes on that hundreds of millions of dollars in any other jurisdiction. It is likely all quite legal and all a function of how the money was characterized in order to avoid Magnitsky.
Our only possible conclusion under the totality of all of the informaiton is that senior government officials in multiple countries were involved in the negotiations that both allowed Gertler to continue operating as though nothing had happened, wholly unencumbered by Magnitsky and that allowed Glencore to continue its operations, given its association with Gertler and Kabila.
We reiterate that this is only an opinion. It is a theory, based upon publicly available information, logical conclusions and some guesswork and should be taken as nothing more.
WhatsApp has launched an unprecedented lawsuit against a cyber weapons firm which it has accused of being behind secret attacks on more than 100 human rights activists, lawyers, journalists, and academics in just two weeks earlier this year.
The social media firm is suing NSO Group, an Israeli surveillance company, saying it is responsible for a series of highly sophisticated cyber-attacks which it claims violated American law in an “unmistakeable pattern of abuse”.
WhatsApp said it believed the technology sold by NSO was used to target the mobile phones of more than 1,400 of its users in 20 different countries during a 14-day period from the end of April to the middle of May.
In this brief period, WhatsApp believes those who were the subject of the cyber-attacks included leading human rights defenders and lawyers, prominent religious figures, well-known journalists and officials in humanitarian organisations.
A number of women previously targeted by cyber-violence, and individuals who have faced assassination attempts and threats of violence, as well as their relatives, were also the victims of the attacks, the company believes.
WhatsApp’s lawsuit, filed in a California court on Tuesday, has demanded a permanent injunction blocking NSO from attempting to access WhatsApp computer systems and those of its parent company, Facebook.
It has also asked the court to rule that NSO violated US federal law and California state law against computer fraud, breached their contracts with WhatsApp and “wrongfully trespassed” on Facebook’s property.
“This is the first time that an encrypted messaging provider is taking legal action against a private entity that has carried out this type of attack against its users,” said a WhatsApp spokesman. “In our complaint, we explain how NSO carried out this attack, including acknowledgement from an NSO employee that our steps to remediate the attack were effective.”
The company is also supporting calls by the UN special rapporteur for freedom of expression, David Kaye, for a moratorium on this kind of invasive spyware.
“There must be strong legal oversight of cyber-weapons like the one used in this attack to ensure they are not used to violate individual rights and freedoms people deserve wherever they are in the world,” WhatsApp said.
“Human rights groups have documented a disturbing trend that such tools have been used to attack journalists and human rights defenders.”
WhatsApp said it had worked with Citizen Lab, an academic research group based at the University of Toronto’s Munk School, to identify the victims of the attacks and the technology used against them. The organisation has begun approaching members of civil society who were affected by the alleged hacks.
John Scott-Railton, a senior researcher at Citizen Lab, said WhatsApp’s action was “a major positive step forward for human rights protections online and will absolutely set a precedent”.
He accused NSO of acting with disregard to the people who were being targeted. “While telling the public it is concerned about human rights, the commercial spyware industry has attempted to carve out an unaccountable space for itself, whereby virtue of its proximity to governments, it claims it is acting lawfully, yet prefers to disclaim any responsibility for that behaviour when it suits them.”
WhatsApp’s announcement comes six months after it disclosed it had discovered a vulnerability that allowed cyber-attackers to install surveillance software on to both iPhones and Android phones by ringing targets using the application’s phone function. It was unclear at that time how many of WhatsApp’s 1.5bn users were affected.
OSWEGO, N.Y. — A state agency responsible for safeguarding nursing home residents knew for years the roof of an Oswego nursing home was leaking water into residents’ rooms, but did not make the facility fix the problem.
The roof finally got repaired when the City of Oswego threatened to shut down the 80-bed Pontiac Nursing Home in March after a resident complained to the city’s code enforcement department. A city inspector found an elaborate jerry-rigged system of hoses and buckets collecting water leaks affecting about 20 residents. In some rooms, hoses running down from ceilings were wrapped around electrical outlets then threaded out windows.
The state Health Department is supposed to inspect every nursing home at least once every 16 months and make homes correct deficiencies.
But an advocate for nursing home residents said the situation at Pontiac Nursing Home shows the Health Department is not aggressive enough.
Richard Mollot of the Long Term Care Community Coalition, a group based in Manhattan, criticized the health department for not slapping Pontiac with financial penalties in recent years to get it to fix the roof. “If you have citations and there is no penalty associated with them, then you are telling the facility, ‘This is OK,’” Mollot said.
A Syracuse.com/Post-Standard review of Pontiac Nursing Home inspection reports show Health Department inspectors discovered water-stained ceiling tiles and a hose running down from the ceiling of a resident’s room into a rusty bucket in 2015 and 2016.
During the 2015 inspection the nursing home’s maintenance director said the stained ceiling tile was from a roof leak. He said he couldn’t remember when it happened. In a plan of correction approved by the Health Department, the nursing home said it fixed the ceiling tiles, but made no mention of repairing the roof.
In a 2016 inspection report, the maintenance director said the rusty bucket and hose in Room 216 were used temporarily to capture water from a leak that had been fixed three months earlier.
But the ceiling in that same room was still leaking earlier this year when the Health Department returned March 7 to do another inspection after getting a complaint from the Oswego code enforcement department. During that visit, the maintenance director told the inspector “ … he had been telling the owner of the building it needed a new roof for 7 years, and for 7 years he had been applying band aids to the leaks.”
When asked twice why it did not make Pontiac repair the roof before the Oswego code enforcement department had to step in, the Health Department dodged the question.
“The Department has cited the Pontiac Nursing Home for multiple maintenance and housekeeping issues, which the facility subsequently addressed,” it said in a prepared statement.
A popular Jewish comic from Brooklyn was booted from two different eateries because the local kosher police threatened to yank their religious stamp of approval on the food if a lesbian performed there.
Leah Forster, 36, whose stand-up schtick features the insular Orthodox world she grew up in, had planned to hold a New Year’s Eve bash in her Brooklyn neighborhood — but both owners canceled once the “Kosher Nostra” put on the squeeze.
Forster’s life as a Jewish lesbian isn’t part of her act, but rabbis from the Vaad Harabanim of Flatbush, the kosher certification organization, still decided hosting her event would be a violation of Torah law.
Now the eateries may face pressure from a different front. The city’s Commission on Human Rights told Forster they may probe the alleged discrimination, she said.
Forster, a big hit on Instagram, first booked her New Year’s Eve event at Brooklyn’s Garden of Eat-In in Flatbush.
She sold 20 tickets at $80 a pop last month — and was excited about performing at one of her favorite restaurants, she said.
But two days after she announced the event online, Chaim Kirshner, the restaurant’s owner, said he was forced to back out by the Flatbush Vaad.
“(The rabbi) said that you’re a lesbian, and you represent that, and we can’t let this go on,” Kirshner told Forster in a phone call that she recorded and shared with the Daily News.
Kirshner said that he has nothing against the LGBT community and “doesn’t care” who hosts events at the restaurant.
But losing his kosher certification would kill his business, Kirshner added.
“They operate like the mafia,” Forster said. “If they pull your hechsher (kosher certification), you are screwed. They tell other places not to give you a hechsher.”
Kirshner was not available when The News visited the Garden of Eat-In on Sunday.
Forster was ready to give up and stick to secular gigs where her sexual orientation would not be an issue.
The horror stories involving the Lev Tahor cult, currently located in Guatemala, continue following the death of its leader Shlomo Helbrans in Mexico in 2017. Since then, the leadership has moved into the hands of Nachman Helbrans, along with Mayer Rosner and Yaakov Yoel Weingarten, who are even more radical and aggressive than the late founder.
The latest story involves a woman who left the cult and came back to rescue her children, but was attacked with knives, gunfire and rocks and was not successful in the rescue mission.
The story involves a woman named Rebbetzin Teller, a sister of current Lev Tahor leader, Nachman Helbrans (Shlomo’s brother). She is married and has 6 children: 4 girls and 2 boys. Her oldest daughter is 13, and was forced to marry a 17-year-old boy, the son of cult leader Mayer Rosner. They reportedly now have a baby.
Rebbetzin Teller didn’t agree with the forced marriage and was placed in Cherem for a year. Lev Tahor Hanhalah took away some of her children and distributed them to other families, and all members of Lev Tahor were forbidden from communicating with her. She was also reportedly forced to work as a cleaning lady in Mayer Rosner’s home.
Several weeks ago, she contacted a friend in Guatemala City, where there is a small community of ex-Lev Tahor members, asking for help. The friend immediately traveled hours to see her. Rebbetzin Teller decided to travel to Guatemala City to speak with askonim over there. She two of her children along for the journey, about a four hour drive.
Askonim urged her not to return to the cult. However, she was extremely concerned about leaving her other children behind. She decided to return and try to rescue them, accompanied by several members of the community.
Askanim Tzvi Herschkowitz and Isaac Weiss told the story to BeChadrei Chareidim:
At around 11:00 PM, two vehicles set out for the 4 hour trip. It was in middle of the hurricane season and the roads were murky. No police were among the group of rescuers. What transpires could be associated with a horror-action film.
Arriving in the early morning, Rebbetzin Teller immediately took one of her children. As she approached the other children, Lev Tahor members rushed out of their ramshackle wooden cabins and began physically assaulting the men protecting Rebbetzin Teller.
Soon, more members arrived with knives to attack the unarmed rescuers. Rebbetzin Teller and the men from the Guatemala City community raced to their vehicles. As they made away with Rebbetzin Teller and one of her daughters, members of Lev Tahor threw stones at the car, smashing windows and mirrors. “Suddenly, one of the rescuers was wounded by shrapnel. They did not know what weapon was used but it appears it was a gun used by cult leaders”.
Both vehicles were badly damaged and several cell phones, which had been used to take photos and video, were lost in the operation.
Other horror stories involving the cult have emerged, from young members who were banished for one reason or the other.
One, a 17-year-old boy, was expelled for listening to music. Another, a 15-year-old boy, was expelled for refusing a forced marriage to a 12-year-old girl.
Internal documents of Lev Tahor show that Helbrans has made his followers swear and sign to uphold the following principles among others.
(1) Everyone must negate his or her mind and mind thoroughly and completely, to the leader of Lev Tahor.
2) They must subjugate soul, spirit, and will.
3) Each man accepts upon his descendants and descendant’s descendants until the end of all generations to be subjugated under the will of Lev Tahor’s leader.. this should be said openly to the leader himself.
4) Everyone must be ready at any time and moment of 24 hours of the day, whether on the Shabbath and Yom Tov, summer and winter, healthy or sick, to do the will of the leader.
5) Whether the person is a young man or an old man, virgins and women they must accept to do the will of the leader.
6) They must agree to throw away all his physical needs, including eating sleep and rest until he fulfills the desires the leader.
7) It is the obligation of each of them at the beginning of the morning prayers to recite and accept upon themselves all of the above with full mouth and supreme joy.
In 2014 YWN ran an article titled “Cults and the War of the Jewish Magazines” in response to Mishpacha and Ami magazines running articles on Lev Tahor. Mishpacha Magzaine had run a fifteen page “expose” on the group, essentially describing Lev Tahor as a cult that has some serious issues involving medicating children, and behaviors that resemble child abuse. Ami Magazing claimed the exact opposite – and ran the following sentence below their headline “The unjust persecution of a group of pious Jews, and the unsettling silence of the Jewish community.”
Originally a citizen of Israel, cult leader Shlomo Helbrans went to the United States where he was convicted for kidnapping in 1994 and served a two-year prison term before being deported to Israel in 2000. He then settled in Canada.
In 1994 he was convicted in Brooklyn for the 1992 kidnapping of 13-year-old Shai Fhima Reuven, a Bar Mitzvah boy he was tutoring, and served a two-year prison term in the U.S. He was originally sentenced to four to 12 years in prison, but in June 1996 an appeals court reduced the sentence to two to six years. Three days later, he was placed in the work release program for prisoners less than two years away from the possibility of parole, where inmates are freed from prison if they have a job. After protests, he was moved back to prison.
The high-profile case drew much attention in the U.S., and gained further attention when Helbrans successfully convinced New York prison authorities to waive their requirement that all prisoners be shaved for a photograph upon entering prison, and to accept a computer-generated image of what he would have looked like clean-shaven instead. After the State Parole Board decided in November 1996 to release Helbrans after two years in prison, the case rose to near scandal with suspicions that the Pataki administration was providing him special treatment.
After his release from prison, Helbrans ran a yeshiva in Monsey, N.Y., and was deported to Israel in 2000. He then settled in Canada, where in 2003 he was granted refugee status, claiming his life was being threatened in Israel.
Helbrans and his followers had arrived in Mexico’s southern Chiapas province after spending three years in Guatemala. They had travelled to Guatemala from Canada, where child-protection authorities were moving to seize children allegedly suffering from neglect.