Fleecing in Phoenixville?

"Fleece" -- "Swindle somebody out of money; to take too much money from somebody by cheating or overcharging" -- Microsoft® Encarta® 2006

Financial elder abuse is often described in general terms with generic warnings to follow; but so often, the family & personal situations are not reported. Following is one case that provides details.

A news report, dated September 18, 2006, found online on the website of the Phoenixville (PA) News , provides details about charges filed by the West Chester District Attorney's Office, of West Chester, PA, in a local District Justice Court against an elderly woman's grandchild in the nature of "multiple counts of forgery; bad checks; and receiving stolen property".

These charges were filed against defendant Kimberly Ann Wadsworth, 32, with a last known address on the 200 block of High Street, Phoenixville, PA, at the same time as additional charges were filed on other matters, including: criminal conspiracy; possession of a controlled substance, drugs, device or cosmetic; possession of drug paraphernalia; and recklessly endangering another person.

Wadsworth was ordered to stand trial in district court last Thursday, September 14, 2006, on forgery charges, after she allegedly stole several of her grandmother's checks to pay rent in July.

The article recites some details, derived from testimony, as follows:

According to court testimony, Terri Acevedo, the manager at Pennsylvania House Hotel, said she received four checks from Wadsworth that came back with a stop payment or account closed notice.

Acevedo said that Wadsworth passed four checks from an account belonging to her grandmother between the dates of July 15 and July 26.

Mike Martin of the Chester County District Attorney's Office presented the four checks to Acevedo for her inspection.

"The four checks, one for $175, $480, $400, and $270, were made out to Wadsworth from her grandmother," said Acevedo. "The checks were endorsed on the back by Wadsworth."

Acevedo testified that the $270 was a stop payment and the $480 check was cashed by her.

"I cashed the $480 for her because she said she needed the cash to get her car out of the shop," she said.

After telling the court that Wadsworth's rent is $170 weekly, Acevedo said that she'd spoken with Mary Ann Powell, Wadsworth's mother, in August.

"We spoke in August to let me know that the account to the checks was closed," she said.

Powell testified that she is the power of attorney for her mother since 2004, and she had to stop payment on some missing checks.

"There were checks from a Vanguard account and credit card checks," said Powell. "I got a call from Acevedo asking me if any of the checks were good, and I told her, 'No'."

Powell said she never gave Wadsworth permission to take or use the checks.

"She was allowed to write checks out before," she said. "My mother would sign them. However, these checks were taken from my home, and there are other checks that have been forged."

The article reports that, after hearing all of the testimony, District Justice Ted Michaels held the charges over for trial. The defendant was "remanded back to Chester County Prison on ten percent of $1,500 bail", with her next court appearance on this matter scheduled for Thursday, September 21, 2006, in the Court of Common Pleas of West Chester, Criminal Division.

The article can be read online here.

PA Bar Assn Prepares Public Education Campaign on "Personal Identity Theft"

The Pennsylvania Bar Association is preparing a two-week campaign, to run from October 24 to November 7, 2006, on "Identity Theft Prevention". Identity theft is the nation's fastest growing crime, impacting more than 10 million Americans each year.

The Pennsylvania Attorney General's Office, through its Bureau of Consumer Protection, investigates & prosecutes such crimes. The PA AG explains what is "identity theft" online here, as follows:

Identity theft and identity fraud are crimes in which someone wrongfully obtains and uses someone else's personal information. Identity theft includes credit card fraud, utilities fraud, and bank fraud.

BroadbandInfo, on its website in an article found here, indicates that senior identity theft is increasing:

Did you know that 11% of senior citizens, 65 and over are the most likely victims of Internet identity theft. According to cpcusociety.org, thieves target anyone, but seniors are particularly vulnerable because seniors have more cash reserves and also higher disposable income. Seniors are more trusting in their elder years and most importantly, seniors are not necessarily Internet or computer savvy. And seniors don’t check their credit rating very often. * * *

And, the Federal Trade Commission (FTC) notes that identity theft targeting seniors over age 60 jumped from 1,800 cases in 2000 to almost 6,000 cases the following year, with most cases involving the use of social security numbers. Seniors beware!

AARP offers its free educational seminar, "Preventing Identity Theft", found online here.

The PA AG's Office is aware that many victims of such crimes are seniors, and so operates its "Senior Crime Prevention University", described online here, as follows:

With a large percentage of citizens over the age of 65, Pennsylvania residents are target for a wide variety of scams, cons and other crimes. The Senior Crime Prevention University (SCPU) educates older Pennsylvanians and their families throughout the Commonwealth on crime prevention. Our goal is to make Pennsylvania's older population aware of the threat of fraud to the elder community, teach them how to avoid being victimized; and to make sure they know who they should call when they are concerned about their safety and well being.

Educating seniors about crime and how to avoid it is the best way we can help seniors to help themselves. The theme of the Senior Crime Prevention University is "AWARE, AVOID, ALERT". We want to make seniors "aware" of the scams and frauds that are out there; teach them how to "avoid" becoming the next victim; make them "alert" and observant of their surroundings and situations they are facing; and, encourage them to report any instances of scam or fraud to their local law enforcement.

The PBA supports the PA AG's efforts in this educational campaign. The PBA is acting through its "Client and Community Relations Committee".

Twenty-six Pennsylvania county bar associations will participate in the campaign, including those in the counties of: Adams, Beaver, Berks, Blair, Bucks, Butler, Cambria, Crawford, Cumberland, Dauphin, Franklin, Fulton, Jefferson, Lancaster, Lawrence, Lebanon, Lehigh, Luzerne, Lycoming, Monroe, Northampton, Northumberland, Philadelphia, Washington, Wayne and Westmoreland. Other local bar associations may join the campaign by the end of this week.

The campaign is funded by a grant from the Pennsylvania Bar Insurance Fund and Trust. Advertisements will be placed in newspapers throughout the Commonwealth through the PBA's partnership with the Pennsylvania Newspaper Association.

A brochure entitled "How to Avoid Identity Theft" is made available by the PA AG's Office online here. The AG's Office advises: "If you believe you have become a victim of identity theft, contact the Office of Attorney General's Bureau of Consumer Protection at 1-800-441-2555."

Gubinatorial Candidate Swann vs. PA Inheritance Tax

Republican candidate for Governor, Lynn Swann, proposes to eliminate the Pennsylvania Inheritance Tax (PIT).

In a statement on his campaign website, posted September 7, 2006, his position is made clear:

Swann has proposed a plan to phase-out the inheritance tax rates in order to provide relief for small manufacturing and non-manufacturing businesses and vital family-owned farms in Pennsylvania, which is only one of nine states still imposing an inheritance tax.

On September 7, 2006, the Pittsburgh Post-Gazette published an article entitled "Swann Targets Inheritance Tax Again" referencing Swann's position on repeal or phase-out of the PIT, which the candidate repeated during a vist to a small business in Harrisburg. That story indicated, in part, as follows:

Republican gubernatorial candidate Lynn Swann yesterday reiterated his call to phase out the state's inheritance tax, which raised $745.2 million last fiscal year.

He would make up for the revenue loss through unspecified spending efficiencies, Mr. Swann said during a campaign stop yesterday at the W.O. Hickok Manufacturing Co., a Harrisburg business owned by the same family for 162 years and five generations.

The state inheritance tax could stand in the way of a sixth generation taking over the company, Mr. Swann said.

The tax can be up to 15 percent of the estate's value, depending on a beneficiary's family relationship to the deceased.

"We're talking in the millions, and we don't have that cash flow. All our money is sunk in the business," said Peter Hickok, owner of the manufacturing plant, during a phone interview after Mr. Swann's visit. "Basically, my heirs would have to sell the business to pay the tax on it."

That's the kind of thing Mr. Swann wants to prevent.

Also on September 7th, in an article entitled "Swann Blasts Inheritance Tax", the Allentown Morning Call reported that Swann "wants to phase out the levy over four to seven years".

The article noted the revenue raised by the PIT:

The state took in $745 million from the tax in the 2005-06 budget year and expects to reap $778 million this year, according to the state Department of Revenue. Swann did not spell out how he would replace those revenues.

The state taxes inheritances at a rate of 4.5 percent — down from 6 percent in 2000 — for direct descendants such as children and 15 percent for so-called ''non-lineal'' heirs, budget figures showed. Spouses are exempt.

In an article posted online by the Centre County Times entitled "Swann Tax Cuts Worth $2.5 Billion", it was noted that Rendell's campaign challenged Swann's assertion that the tax cuts can be absorbed without significant cuts in state programs:

"The magnitude of the tax cuts that Lynn Swann is talking about will necessitate deep and severe cuts to essential government services," said spokesman Dan Fee. "Either Lynn Swann doesn't intend to keep the promises that he makes or he's not telling the truth."

* * *

Fee questioned the reliability of Swann's plan, noting his recent decision to prolong the proposed phase-out of the inheritance tax from a maximum of seven years to a maximum of 12.

"How can anyone say that there's a level of predictability when (he) is changing it just weeks after he proposed it?" he asked.

On September 7, 2006, the Governor's Campaign website had posted a Press Release criticizing Swann's plan. However, it did not mention any position by the Governor as to the present or future application of the Pennsylvania Inheritance Tax.

"End-of-Life" Care: West Virginia Views

I am not aware of any surveys conducted in Pennsylvania regarding "end-of-life" care.

However, in our sister state of West Virginia, since 1999, the West Virginia Center for End of Life Care has conducted a random survey of 1,000 West Virginia residents every two years regarding their attitudes toward "end of life" care options. These results may illuminate the views of a region, not just that state.

In March, 2006, the Center compiled the results of its 2006 Survey, and then released its summary.

Key findings are found online here:

• 39% of West Virginians have completed a living will, a medical power of attorney, or a combined form. This is the highest percentage in the nation. Most states report an average of 20-25% completion.

• DNR ("Do Not Resuscitate") awareness is continually increasing. In 1999, only 45% reported they were familiar with the DNR law. In 2006, 64% reported awareness.

• Two-thirds of West Virginians have talked to a family member or close friend regarding their end of life treatment desires, yet only 21% of West Virginians have discussed these desires with their doctor.

• 65% of West Virginians’ stated that friends or family who passed away within the last year received good or excellent care for their pain and suffering at the end of their life.

• Concern over dying in pain has dropped from 30% in 1999, to 19% in 2006.

• Overall rating of end of life care in West Virginia has increased from 46% who believed it to be good to excellent in 1999, to 61% in 2006.

The survey was conducted by RMS Strategies in Charleston, WV. The margin of error was +/- 3%.

PA Trial Court Acquits Criminal Charge of POA Forgery

On September 13, 2006, the Centre Daily Times posted online an article by the Associated Press regarding an alleged forgery of a power of attorney that was the subject of a criminal prosecution in Dauphin County, Pennsylvania. The defendant was acquitted after a non-jury "bench" trial.

The article reports, in part, as follows:

HARRISBURG, Pa. - A state police trooper was acquitted of charges that he forged a power-of-attorney document and allegedly tried to use it to sell property that he owned with his ex-wife.

Dauphin County Judge Lawrence F. Clark Jr. who heard the case against Trooper Kirk A. Perkins without a jury, said the prosecution did not prove all the elements of the crime beyond a reasonable doubt.

"The judge was sitting in place of a jury, and that's his job, and we have to accept his judgment," said prosecutor Fran Chardo. "If what (Perkins) did is not a crime, it ought to be."

Perkins, of Mechanicsburg, was charged by the state police's internal affairs unit in February with forgery and tampering with records or identification and was suspended without pay. He worked in the Carlisle barracks.

He allegedly altered the expiration date and property reference on a power-of-attorney document for his ex-wife, Lorien A. Mickelson, of Cantonment, Fla.

In Pennsylvania, the court most involved in questions regarding "powers of attorney" is the Orphans' Court Division, of the Court of Common Pleas in a county, pursuant to Section 711 of the PA Probate, Estates & Fiduciaries Code (Title 20 of PA Consolidated Statutes).

This case appears to have been presented instead in the Criminal Court Division for consideration under the PA Crimes Code.

In that setting, the judge applied a higher standard of proof in considering whether criminal fraud had occurred, than would the Orphans' Court Division in determining whether the POA was valid when exercised.

The complete article is available online here.

UPDATE 12/08/06:

This ongoing dispute was the subject of a further report on December 8, 2006, in an article entitled "Ex-wife charged with harassment", by Frank Cozzoli & Pete Shellem, of the Patriot-News (Harrisburg, PA).

The update on the case demonstrates the far wanderings of litigation:

Hampden Twp. said Mickelson made a series of phone calls to Perkins after he told her to stop calling on Sept. 28 and that the only communication between them should be through their attorneys.

Perkins reported the phone calls to police on Sept. 29.

Police traced the calls to a cell phone number assigned to Bryan Mickelson of Cantonment, Fla.

On Oct. 25, Perkins reported more harassing phone calls, police said.

Police said Lorien Mickelson also made two Sept. 28 hang-up phone calls to Abom, who represented Perkins during a forgery trial involving his ex-wife.

In February, Perkins was charged with forgery and records tampering for allegedly signing his ex-wife's name to a power of attorney to sell a Harrisburg property that was in both their names. Clark acquitted him of those charges after a nonjury trial in September.

The charges led to Perkins being suspended from the state police without pay from his post at the Carlisle Barracks. After his acquittal, Perkins was returned to restricted duty on Oct. 12 pending the conclusion of an internal investigation, said state police spokeswoman Linette Quinn.

The article (before archiving) was found here.

PA UTA: Counting the Days to 11/06/06 (Real Effective Date)

Previously, on September 6, 2006, I posted a message about the new Pennsylvania Uniform Trust Act. I mentioned the generally-anticipated effective date of November 4, 2006.

I stand corrected. Because November 4, 2006, will be a Saturday, the real effective date will be Monday, November 6, 2006.

A question was raised about the calculation of the effective date during the first presentation, on September 12th in Philadelphia, of the "Pennsylvania Uniform Trust Act", seminar, which is co-sponsored by the Pennsylvania Bar Institute and the Pennsylvania Bankers Association.

In a prior posting, I discussed this statewide course offering.

Ted Watters, Esq. yesterday clarified the real effective date in a letter, as follows:

The effective date for Chapter 77, the Pennsylvania Uniform Trust Act is in fact Monday, November 6, 2006, not as stated in the outline, November 4. As you know, during the seminar, a question was raised concerning the effective date, and we stated that it was November 4. Research that afternoon indicated that we were incorrect.

Pennsylvania has a wonderfully arcane rule (one might even say nonsensical) for effective dates. Under 1 PA CSA §1908, if an effective date is stated as a number of months after signature by the Governor, then the effective date can fall on a weekend or holiday. For example, the Pennsylvania Prudent Investor Rule was part of a bill signed by the Governor on June 25, 1999, and became effective on Christmas of that year, December 25, 1999. In contrast, if the effective date is stated as a number of days, and the date falls on a weekend or holiday, the actual effective date is the next business day.

The Governor signed Senate Bill 660, making it Act No. 98, on July 7, 2006. 120 days later is November 4. However, November 4 is a Saturday, so the effective date of Chapter 77, the Pennsylvania Uniform Trust Act, is Monday, November 6, 2006.

Ted's advice can be trusted on this point. For his summary of the major changes being wrought by the PA UTA, see his article posted online.

Thomas Jefferson once wrote:

"The true key for the construction of everything doubtful in a law, is the intention of the law givers. This is most safely gathered from the words, but may be sought also in extraneous circumstances, provided they do not contradict the express words of the law."

— Jefferson's Letter to A. Gallatin, 1808

In this case -- where we are counting the days to the effective date of the PA UTA -- Saturday is just such an "extraneous" circumstance.