Westchester Guardian/Catherine Wilson.

Thursday, April 16, 2009

Catherine Wilson, Bureau Chief
Northern Westchester

Protecting Your Life’s Savings
From Fraud, Abuse, And Theft

Imagine working all of your life, following all of the rules, living within or below your means, and even managing to save some of what you
worked so hard for. It would be nice to be able to leave what’s left over to your heirs or charities, money you can assign to help others or further a favorite cause or ideal, a way to leave a personal mark. Even individuals who have not accumulated a lot of money in their lifetimes can leave behind instructions to have what little is left over to be given to a homeless shelter, a devoted aunt, or even just to their favorite pet or to the bright kid down the block. Whatever the decision is, it is one that should be honored.

Local seniors and the AARP crowd, those over age 50, are bombarded by sales pitches from local attorneys and financial planners all willing to help them ensure that their money will be properly handled upon their death and also to reduce or avoid estate tax issues and lengthy probate proceedings in Court.

These plans may only be developed while the individual is “of sound mind” and capable of making the decisions and providing the necessary
instructions. But what happens once that individual’s mental capacity declines? Are the plans and wills and trusts they carefully set up still honored and protected? And even if we manage to stay competent as we age, is that any guarantee that our wishes will be met?

Sadly, for many of the elderly among us, the answer is no. Recent articles by the Guardian on misdeeds in the Westchester County Surrogate’s Court regarding the trust fund of an Asperger’s victim inspired a local reader, Rick Kuse, to write in about how his uncle’s estate was plundered in the Surrogate’s Court in Nassau County.

The Guardian met with Kuse recently to follow up on his story. According to Kuse, the attorneys handling his late uncle’s estate “stole
his uncle’s assets, dividend checks, pension checks, bank accounts, and house”. Kuse’s uncle, Charles Maxwell, was the victim of psychological elder abuse in the last years of his life. Maxwell’s nephew, Tom Quinn, Kuse’s cousin, was in severe financial difficulties and facing foreclosure on his own home on mortgages he had obtained only three years prior.

Quinn, aware that Maxwell had assets in excess of $200,000 in addition to his home, hounded Maxwell for years for money, eventually driving the 91-year-old Maxwell from his home in Queens to the protection of his sister in Rockland County to escape the emotional and psychological abuse. Quinn even enlisted his young daughter in the attacks by having her write letters to her granduncle telling him how “broke” her parents were.

Fearful for his life savings, in January of 1999, Maxwell instructed his attorney to transfer $200,000 from his account into escrow to protect
these funds. But Maxwell was too late. The transfer check bounced. Someone had already cleaned out all of the money from Maxwell’s account. Nine days after the $200,000 escrow transfer bounced, Tom Quinn paid off one of the mortgages on his home in full. And nine months after that, in September of 1999, Quinn paid off the second mortgage on his home of $105,000, a mortgage that he had only obtained one year beforehand in 1998.

Maxwell had good reason to be concerned about his money. In March of 1999, Tom Quinn retained an attorney, Roger Weber, and allegedly
applied to the Courts for guardianship of his aging uncle. But without waiting for guardianship to be granted, Quinn contacted his uncle’s brokerage firm and requested that a hold be placed on Maxwell’s accounts so that his uncle would not be able to liquidate them. Fortunately
the investment firm would not honor the request without the guardianship papers and informed Quinn that they would “act on any instruction we receive from a person who proves to be authorized to act on the account”.

In February of 1999, Quinn diverted his uncle’s mail to his address. That mail would have included credit card applications. Shortly afterwards, Charles Maxwell died, in December of 1999. In July of 2000, the Will of Charles Maxwell was filed in Surrogate’s Court in Nassau County for probate. Among the claims listed against the estate was a credit card balance due on an account that was opened in Charles Maxwell’s name, nine months after his death!

The Will itself was proven to be fraudulent by experts hired by Kuse, a determination seconded by the Queens District Attorney’s Office. The will was drafted in 1993 by Roger Weber, who was only a law student at the time, and the signature of Charles Maxwell on this will was determined by handwriting experts to be fraudulent.

In spite of this, Nassau County Surrogate’s Court accepted this will for probate. In addition, despite an investigation by the Queens District Attorney’s office, Weber has never produced a full accounting of the proceeds of the Maxwell estate. Charles Maxwell’s home has been sold and the furniture removed; his $240,000 in savings has disappeared, and even his $25,000 returnable security deposit to an area nursing home has never materialized.

Any attempts by Kuse to “follow the money” have been thwarted and any files on this case, including those in the Surrogate’s Court, have vanished. Kuse has been misdirected by members of the Office of Court Administration; court proceedings have been cancelled at the last minute, investigations have been dropped, and even his appeals appear to have been tampered with. Kuse and his attorney repeatedly contacted the Appellate Court in Brooklyn for the status of the decision on the fraudulent Will in late 2004 and throughout 2005 on an appeal that he filed in December 2003.

The Appellate Court finally produced a decision “dated” December 2004, a decision that appears to be backdated since it does not show up
as registered into the Westlaw legal search system until 2006! To address such issues, the New York Court Administration has repeatedly
announced “improvements” to their systems to prevent the widespread theft of funds from the elderly and disabled in the legal system. In
2002, the Office of Court Administration set limits on judicial appointments, prohibiting appointments to political leaders, former judges and
relatives, campaign coordinators, and immediate relatives.

Such leaders and politicians were appointed by Judge Nicholas Colabella, Westchester Supreme, as noted on his “kickback” list revealed
by the Guardian on March 19, 2009, a list Colabella’s Law Secretary, Ray Powers, kept off-site from the courthouse, away from the prying eyes of the court auditors.

According to the Chief Judge, Jonathan Lippman, the revamped court rules in 2002 “set limits on the amounts attorneys may charge estates
for their services and force the attorneys to report all fees and hold the judges accountable if the lawyers do not comply”. But despite such assurances, attorneys are still rarely, if ever, held to task for violating court rules and overcharging estates and trusts. Indeed, even the individuals hired by the Courts to protect the assets of the elderly and the disabled, the “Public Administrators”, are not up to the task. The official responsibilities of a Public Administrator are to “protect the decedent’s property from waste, loss, or theft; make appropriate burial arrangements when no close relative is available to make the decision; conduct thorough investigations to discover all assets; liquidate assets at public sale or distributes assets to heirs; pay the decedent’s bills and taxes; and locate persons entitled to inherit the estate and ensure that
the legal distributees receive their inheritance”.

Yet the “qualifications” for this job are laughable:

• Applicants must be at least 18 years of age;

• County residency is required for appointment;

• Applicants with knowledge of Surrogate’s Court practice, as well as with experience in complex administration of an office, will be given preference;

• Bar admission may be given preference.

Despite the fact that a Public Administrator may be solely responsible for the investigation and distribution of millions of dollars of a decedent’s assets, nowhere in the qualifications does the Court system ask for auditing or forensic accounting experience.

The Court does not demand knowledge of and experience with accounting reconciliation procedures and disclosure requirements, document
retention procedures, development and maintenance of audit trails, or even basic knowledge of the due diligence necessary for investigations.

All the Court system requires for someone to dole out your life savings to the waiting vultures is a warm body with office skills. Oh, and being a lawyer, that is, one of their gang, doesn’t hurt!

While Kuse’s investigations reveal the problems in the Nassau County legal system, such abuse can happen anywhere. Anyone can fall prey to unscrupulous individuals without even knowing it. There are some steps that all local residents should take to ensure that their life savings
are protected and that no one has used their identity to take out loans, credit cards, or mortgages.

The Federal Trade Commission provides a free credit report to all consumers once a year. Even if you never had a credit card, you should
still check your credit every year to make sure that no one has taken out a credit card in your name or a loan against your home, taking cash
against your equity, without your knowledge. This report can be obtained by calling 1-877-322-8228 or by completing an online form at
www.annualcreditreport.com.

This report reveals:

• Personal information – this is all names you have been known by, all known addresses, employers, social security number, etc.;

• Public Records – this shows any bankruptcy records, tax liens, monetary judgments, and overdue child support filed in your name;

• Credit Inquiries – this section shows new accounts and loans opened and creditors who have requested information about you;

• Credit History – this shows all activity on all accounts and loans in your name, both closed accounts and those currently active.

In addition to the above, the County Clerk’s Office has records of all mortgages, deeds, and liens filed against your property and any
business certificates filed using your name. Any Westchester resident can obtain access to these records online at www.westchesterclerk.com
or in person at the County Clerk’s Office at 110 Dr. Martin Luther King Jr. Blvd. in White Plains. The County Clerk may be reached at 914-995- 3070.

However, there is absolutely no way to know if anyone has made a fraudulent will in your name. Wills are not recorded before death so there
is no way for you to know if a fraudulent will exists to be able to do anything about it. Likewise, there is also no way for your relatives and heirs to know if the will they have in their possession is your final one.

Surrogate’s Courts records are also kept separate from the online computerized systems in the County Clerk’s Office so any search of these
records must be done in person in the courthouse in White Plains, making such a search by elderly and handicapped individuals difficult (the handicapped entrance door to the White Plains courthouse was not working yet again last week when this reporter tested it).

In addition, Surrogate’s Courts records are manual, maintained by court staff rather than archivists, and are therefore prone to misfiling and lost records. Even the New York State Court System itself admits this. Under “Court Help” for Surrogate’s Court it notes “Most Surrogate’s Court records are public records. Call ahead to the court to learn whether the file exists and give them time to find them!” What kind of filing system is that? Why would the Court need a “head’s up” for someone to look at a will? Is that to give the Court time to hunt down where your loved one’s personal information might have been carelessly tossed? And if these records are indeed public as the court system itself claims, then why aren’t they available online for immediate access like other public records?

While wills cannot be tracked down in the legal system until they are produced for probate, other critical personal records can be confirmed as accurate while you are still alive with a bit of investigation. Investigating the existence of any fraudulent powers-of-attorney requires contacting all of your banks and brokerage firms and even your company’s benefits office. A simple phone call to each should assure you that the authorizations you established are still in place. Similarly, a call to your health insurance carrier and doctors’ offices can verify that the proper living wills, health care proxies, and DNR (do not resuscitate) forms are on file. Pensions, 401K accounts, and insurance policies
should also be checked on a regular basis to assure that your records have not been tampered with.

Sadly the United States lags far behind the European Union in protecting its citizens against fraud of this nature. Had Charles Maxwell lived in Europe, he would have been immediately notified when a credit card was opened in his name and a mortgage was paid off using his funds. In the United States, the burden is on the consumer to protect themselves. And, as in Maxwell’s case, there is no way to know that someone has a fraudulent will out there with your name on it, ready to be sprung into action the moment you die to obtain illegal access to your life savings.

A few simple changes to our State laws, however, would provide local residents with the protections they need against such fraud. New York should mandate a registry for all wills, and any such documents executed should be immediately sent to the County Clerk’s Office where they can be registered and backed up on the Clerk’s computerized systems preventing any future tampering. A certified copy of the filed will should then be sent by the County Clerk to the individual executing the will and to the executor and attorneys involved for confirmation.

Only certified copies from the County Clerk should then be accepted for probate by the Surrogate’s Court. Likewise, all powers-of-attorney,
living wills, health care proxies, and DNR orders should also be filed with the County Clerk and certified copies then sent to all necessary parties for confirmation. Other legal papers, such as mortgages and business certificates, are filed with the Clerk’s Office with no difficulties, so why can’t executed wills and POA’s be filed in a similar fashion, backed up and ready for use when needed?

Under the current system, anyone could be walking around with a fraudulent piece of paper in their pocket giving them the “right” to “pull the plug” on you or wipe out your bank accounts and you wouldn’t know it. The current system relies on hospital staff and outsourced
bank clerks to verify the validity of such critical documents. And if you’re unconscious, or otherwise incapacitated, how can they ask you if that is indeed your signature on the document? Legislating that such documents have to be certified and on file with the County Clerk beforehand will assure the recipients that these authorizations are valid. A hospital or bank questioning a document would only have to contact the Clerk’s Office for verification. This would also make these documents available when needed; your loved ones may not be able to find these papers, or may not have the presence of mind to think of them, when the time comes.

Since most legal records are now online in New York State, with the exception of Surrogate’s Court, the State should provide all residents with a free annual legal report, similar to the annual credit report, that shows all legal actions taken in the State in your name during the year.

The New York State Senate has formed a Judicial Committee, headed by New York State Senator John Sampson, 19th District in Kings County, to investigate the legal problems in the court system. We would urge our readers to contact Senator Sampson’s office (518-455-2788 or 718-649-7653) to ask him to sponsor the legislation our elderly need to protect their life savings from fraud and abuse.