Everyone is Getting Sued in Class Actions!

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Elder Law Attorneys John and Lisa Discuss Class Action Lawsuits.

John

Hi, everybody. We're about to go live, just got the opening disclosures and all that good stuff. So get past that, start the show.

Recorded Intro

Every person's legal situation is unique. You should contact your attorney before taking any legal action related to the subjects discussed in this program. Welcome to "Aging Insight", the only show dedicated to your eldercare concerns and your resource for learning about how to manage your health, housing, financial and legal needs. This is a live call-in program, featuring John Ross and Lisa Shoalmire, elder law attorneys and senior advocates for the inaudible 00:36 . "Aging Insight" is dedicated to helping you navigate inaudible 00:40

John

I'm telling you.

Recorded Intro

So call in and ask your questions. The number is (903) 793-1071. Now, here are your hosts, John Ross and Lisa Shoalmire.

John

Welcome to "Aging Insight", everybody. This is your host, John Ross here live in the studio on this Saturday at noon, just like we always are. Here in the studio with Lisa Shoalmire and you are listening to the number one show on aging issues in the inaudible 01:13 .

Lisa

It might be the only show.

John

It's still the number one.

Lisa

That's right.

John

And so we got inaudible 01:20

Lisa

Because we care. Because we want to get this information, nobody else cares.

John

That's right. So we show up here every Saturday so that we can give you all some information, talk to you, and we do it live, a pretty large part. So that if you want, you can give us a call and ask a question. The phone number is (903) 793-1071, and we have successfully learned how to work our board here and...

Lisa

And that's big talk.

John

I can take calls occasionally, so feel free to give us a shout if you have any questions or comments. You know, this is good stuff because we give information that at least we in our little minds think you ought to know about.

Lisa

Well, and it's stuff we talk about day in, day out. And so it's great to kind of get into a situation like a radio studio and be able to, you know, broadcast it to the world. But we're also doing Facebook live again. And so if you go to the Ross and Shoalmire Facebook page or John's personal Facebook page...

John

Yeah, it's all over the place.

Lisa

inaudible 02:27 and you can watch us make radio and even type in some comments below or questions and we'll also answer those on the air. And John, we are on the air because we have some sponsors that make it happen. So I want to give a special shout-out to Edgewood Manor and The Barnett Agency, Dierkson Memorial Hospice, Cowhorn Creek, CHRISTUS St. Michael's, Texarkana SP Funeral Home, Red River Federal Credit Union, Heritage and Reunion Plaza, along with the Twin Cities Rehab there at Reunion.

John

Yeah, that's right. Thanks to all of them, and of course, thanks to everybody that listens. And we are doing the show live on this is how we do it. And we inaudible 03:14

Lisa

inaudible 03:19 and maybe there are contemplating stuff going on there.

John

Yeah, you know, I will say stuff about the privacy with Facebook. Let me just be inaudible 03:34 on this. If you have a cell phone, internet connection, but basically if you're living any other way than like Ted Kaczynski, the Unabomber, off the grid cabin in Montana, you have no privacy.

Lisa

So don't worry about it, just, you know...

John

Let's just be clear about that. Do nothing on the Internet and assume privacy, as some of the local recently arrested have found. So anyway, that's not what we're talking about.

Lisa

No, it's not. Well, John, this week, I know that I always like to kind of give everybody an update about where we've been and what we've been doing and with hopes that if you're listening to the radio show, maybe you'll be able to catch up with us live out there in the community. But this week I gave an hour-long talk to the social workers in the Texarkana area. I was able to do that over at St. Michael's, and so I had about 12, 15 social workers that work with seniors in various capacities who came and heard me run my mouth about things like guardianships and powers of attorney and do not resuscitate orders, which we'll have to do a show on that. There's some new law on that.

John

No, no, I did speak to the THU retirees out at the...oh, it's a resort, kind of...it's called the Emerald Bay Club out in Lake Palestine.

Lisa

Yeah, so that sounds pretty nice.

John

Yeah. Yeah, no, if you like the golf course lake living, it looked like a pretty sweet little spot.

Lisa

Yeah, we don't really have anything like that in our home base of Texarkana, but there's certainly plenty of that if you want to live that lifestyle in retirement, the golf course lifestyle, well, there's somewhere close enough you could do that.

John

And of course, Eggs and Issues, our monthly breakfast. Or not monthly, our quarterly breakfast, quarterly breakfast over at the Trinity Baptist Church coming up not next week, but the week after. That will be April 26th, that's at 8:30 a.m at Trinity Baptist over there on the Arkansas side. If you don't know where it is, just Google it. You'll figure it out.

Lisa

Yeah. So if you're listening to us on the radio, then you can...you're within distance to come on out to the Eggs and Issues on April 25th.

John

And I don't know which one of us will necessarily be talking, but we're going to be talking about trusts and some of the basics that go into trusts.

Lisa

And it sounds really exciting, but I promise.

John

It's fun.

Lisa

It'll be good.

John

We always have good stories.

Lisa

Well, the other thing is we ran into one of our regulars who comes to most of the Eggs and Issues programs out at Trinity. We ran into him, I guess that was Thursday night, at a symphony, fundraiser type event. And he said it was great to just, you know, repeat some of our topics because he's already forgotten what he learned the last time.

John

Yeah, that's right.

Lisa

So anyway, but that...

John

Well yeah, so I mean, we're going to be out there doing stuff.

Lisa

All right, so all the self-promotion, is it over now?

John

I think so.

John

All right, but here's something that everybody needs to know is, you know what? I am the plaintiff in several lawsuits.

Lisa

Okay.

Lisa

Well, okay John, that's a little shocking, you're the plaintiff in several lawsuits.

John

Yeah. Now, I didn't realize this because these are class action lawsuits. And I think we just got a notice the other day that we had pay per viewed the Floyd Mayweather...

Lisa

Conor McGregor

John

Conor McGregor fight.

Lisa

We're not going to turn to "ESPN Radio", but there was a fight back in August.

John

Back in August and apparently, there was some internet disruption.

Lisa

Yes. So, you know, pay-per-view, you pay an exorbitant amount of money to be able to watch this event at your home.

John

And we streamed it. We stream these things. We don't have traditional cable and stuff anymore. We're just streaming these things and apparently, there were some interruptions with the internet broadcasts. And as a result of that, there has been a class action lawsuit.

Lisa

Yeah. So we got a notice this past week that we are a plaintiff in the class action lawsuit, and if we could document that our internet stream was disrupted during the pay-per-view fight that we paid, you know, too much for, then we could get something back. And it said a maximum, I think, of 30 bucks.

John

Yeah, that's right.

Lisa

And, who knew? And of course, I think I asked you, do we have an interruption? I don't really recall, but that's just, you know, these class action lawsuits, John, a lot of times you get a notice in the mail and you're told that, you know, you were promised that the oil change place could get it done in 15 minutes or less, and historically they've been taking longer than that. And if you paid for an oil change there, well then by God, you're entitled to compensation because they didn't meet their processes. I mean, that kind of stuff.

John

Right. Often in the form of maybe a $5 off coupon for your next oil check, right?

Lisa

I know, I remember one we had, it was a $2 I think the compensation to me as a consumer was two bucks, but just for fun because I'm a lawyer and I like too look this stuff up, I did look up to see how much the attorneys who were representing all of us poor, pathetic, minimally damaged plaintiffs they were getting something like, you know, $25 million.

John

Of course they were.

Lisa

So, class actions, a lot of people have heard of them now. Texarkana has historically in the past, you know, 20 years been sort of a hotbed of class actions. crosstalk 10:09

John

Has been somewhat of a hotbed.

Lisa

It's kind of dried up a little bit in the recent years, but that was mostly because we didn't have a federal judge for a while. But the federal courts here in Texarkana have done a lot of class actions, particularly with technology. Marshall, Texas is still a big venue for that type of thing. And then for awhile, they were shifting a lot of class actions over into the Arkansas State Court. o our local Arkansas circuit court judges were dealing with businesses like Yahoo and Google and stuff like that. So most people now are familiar, they at least know a class action and we're not going to give a class action class on the radio today. But we do want to talk about two or three class action lawsuits that are, that have been filed, that really impacts some of the issues we talk about on "Aging Insights". See, there's the tie-in.

John

Yeah, that's right. And I will say, you know, on the one hand, it's very easy to, you know--and I mean, we're doing it right here on the radio--to throw stones at the plaintiff's lawyers that are getting these multi-million dollar legal fees...

Lisa

That's just my jealous time. That's really all that is.

John

While the people that they're actually representing are getting the $5 off their next oil change coupons, right? So it is easy but the whole purpose behind the class actions is that there are situations where, you know, it's just not economical. You know, you have been wronged, right, but it's just not economical to go through the process of filing suit in order to right that wrong. What was the comment from the other lawyer at the charity function about justice?

Lisa

Oh yeah, Justice, something about justice sometimes isn't worth the price or justice costs money.

John

Yeah, you can't afford.

Lisa

How much justice can you afford?

John

Yeah, how much justice can you afford?

Lisa

That's what it was.

John

Yeah, that was the quote, "How much justice can you afford?"

Lisa

And if you've just been wronged by a few bucks or a few minutes of your life...

John

Right, so, you know, maybe you chose that particular oil change place strictly because you were in a rush and they were gonna do it in under 15 minutes. It has taken, in fact, 20 minutes, that has made you late. You're not really damaged by this in any large economical function but you were lied to. You were promised something that wasn't delivered. And if that's happening on a large scale, it seems like they shouldn't be able to just get away with it. And so the class action allows one lawsuit to represent all of those people that have these little damages.

Lisa

Yeah, little mini wrongs all compiled together.

John

Right, and if you add up enough little wrongs, you end up with one big wrong. And so on the one hand, I will say there has been a lot of abuse of the class action as a tool. I mean, as soon as some lawyers realized how much money they could make off with these deals, they got a little aggressive with it. But it does still remain a viable...

John

...and important tool out there.

Lisa

And important...

Lisa

Because you're Joe Shmoe. Yeah, Joe Shmoe, I can't take on, you know, a major multinational corporation. I mean, you know, I don't have the money to hire lawyers for that. So if a major multinational corporation has wronged me in a little way, then if it worked for the watchdog of the potential of these class action lawsuits, there might be even more wrongs in time.

John

Yeah, and so today we're gonna talk about three class action lawsuits that have been filed I think just in the last month or so. One of them is against Edward Jones, and again, you talk about big corpus, the largest financial services company in the United States.

Lisa

Right, and they have representatives along, you know, in neighborhoods, and they're based in St Louis. So if you're a Texas person who has a little wrong from them, what are you going to do about it?

John

Right. So what we're going to talk about one from them. We're going to talk about one against the state of Texas, the whole state of Texas, related to The Guardianship Programs. And then assuming we have enough time, we're gonna talk about the third one that's against Medicaid. And it's actually based in Illinois, but it's about Medicaid and how they process Medicaid applications.

Recorded Intro

Welcome to "Aging Insight" with John Ross and Lisa Shoalmire on inaudible 15:16 .

John

All right. Well, thanks for staying with us on Facebook Live. We're doing our little break here in the middle. We got some radio sponsors that we've got to list out, but yeah, we're gonna be talking about some of these class actions now. You mentioned getting one, you know, we were early adopters of the Kindle.

Lisa

Yes, the Amazon device where you can read books.

John

Yeah, and Amazon, of course, got sued for price fixing on the cost of the books and things like that. And I actually got awarded my judgment from a, that class action. And Amazon credited my account with 30 cents.

Lisa

Thirty cents.

John

I got 30 cents.

Lisa

Which still will not buy anything other than the Amazon candle.

John

Which I would still not buy anything on Amazon.

Lisa

Well, and you know, John, my very first official legal job was working on the class action lawsuit by the State of Texas against the tobacco companies. There were definitely some bucks that went to those plaintiffs attorneys.

John

It's easy to say that they made a couple of dollars.

Lisa

Yes, they did.

John

They made them

Lisa

But, and of course I know that kind of recently, we're not going to talk about this case. But I know presently in that same kind of vein, lot of states, municipalities, counties are suing the drug manufacturers for the...

John

Opioids.

Lisa

Opioids, yeah.

John

Yeah, lots of stuff going on on that. And of course, you know, I mean, I don't know how far some of that will go. You know, unfortunately, the one with the tobacco, you know, they hit him pretty hard on that. But yeah, those plaintiffs lawyers did make some money. And so I think across the country they've been eyeballing...

Lisa

The next thing.

John

Yeah, the next big thing on that. I mean, there's certainly several that they could target. I mean, sodas...

Lisa

Yeah, big food was one of the other areas...

John

Yes, big food.

Lisa

...with, you know, with all the sugar and additives and everything that makes it addictive, you know, which I would use the Lay's potato chip commercial against them.

John

Right. Bet you can't eat just one, right? We knew in our own marketing that it was an addictive food product.

John

Lisa. Yeah, but then, of course, you get all that, you know, personal responsibility kind of stuff going in those types of lawsuits.

John

That's where I'm at, you know.

Lisa

But these other class actions that we're going to talk about, yeah, they impact our seniors right here in our community.

John

Yeah. All right. So here we go, in four, three, two, one.

Recorded Intro

If you have a question, phone (903) 793-1071. Now back to "Aging Insights" with John and Lisa.

Lisa

All right. Welcome back, everyone. This is Lisa Shoalmire. I'm here live in the studio of "Aging Insight" with John Ross. Today, we're really talking about some lawyer stuff. We're talking about some class action lawsuits that have just recently been filed that I know for a fact that there are citizens in our community, in our radio listening community, that have been impacted by the fact patterns that are at issue in these class action lawsuits. So let's jump in, John, and talk about the class action lawsuit filed against Edward Jones.

John

Right. So basically, you know, and this is not just Edward Jones. This is basically any financial advisor out there. There are roughly two ways that you could pay them. Historically, most financial advisors would work on a commission type base. In other words, you're not paying them so to speak. When they invest funds on your behalf, every time they make an investment, they get a little piece.

Lisa

Yeah, a little, little, tiny percent.

John

Right, and so they get a commission off of that. That's where they make their money. And that's the way you saw lots of things happening on a pretty routine basis. Now, back towards the end of Obama's presidency, he pushed through the Department of Labor or something called the fiduciary rule, which has now since been pulled back. But what that rule said was that as it relates to IRAs and things, the financial advisor is going to be held to a much higher standard.

Lisa

Right. The financial advisor when they're working with the client and the client's money, the financial advisor under that department of Labor rule was under the obligation to act in the best interest of that client. And who knew they weren't already required to do that? But that was the rule because there were some abuses where advisors would put clients into investments that just happened to pay the best commissions as opposed to maybe be the best type of investment for that client. And that's where the rule came in.

John

Right. And I know some of these firms that would, for example, if there were so many traits, there's so much in commission revenue over a certain period of time, then, you know, the advisors would be given cruises and things like that. So, you know, you...

Lisa

Yes, performance bonuses.

John

Performance bonuses. And so you didn't necessarily know if that recommendation on buying or selling that stock was because that was appropriate for the portfolio or because the guy...

Lisa

Because the wife wanted... crosstalk 22:06

John

...needed one more for the cruise, right? And so the other way is through the, what they'll call managed accounts or something like that where basically you're paying a set fee. It's often a percentage, so maybe a half a percent or one percent or something like that. You pay that annually and that's how much the advisor is getting paid. So it doesn't matter whether they're buying or selling or everything's just sitting there, you know, it doesn't really matter, right?

Lisa

Yeah, so the advisor could get paid by commission and the other way was to go into a managed account where there was a set fee that was usually based as a percentage on the funds being held with that advisor.

John

Right. And so here's the basis of this class action lawsuit against Edward Jones. So there is something out there that's called churning. And so this is what we were describing earlier, where the financial advisor is just getting somebody to constantly buy and sell and buy and sell as a way to generate commissions. Well, many people were telling their advisors, "No, I just want to leave my investments alone."

Lisa

Yeah, "I like what I've got."

John

"I'm going to leave all of my investments alone." Well, if you're not touching them then you're not generating those fees. And so after this fiduciary rule comes in, Edward Jones says, calls this same person and says, "Hey, you need to switch from this commission base over to this percentage base." Well, now that person that was paying no fees because no trades were happening is all of a sudden paying an advisory fee for the exact same thing.

Lisa

For the exact same thing because they're still saying, "Don't touch my stuff."

John

Exactly. So that's what they call reverse churning. It's trying to figure out a way. So that's the basis of that suit. We got to take our news break here at the bottom of the hour. So we'll finish talking about this one here in a little bit, but mostly stick around. We'll be right back. And I will say at least, you know, we'll mention this when we come back on the radio live but some of this does actually happen out there.

Lisa

Yes, it does.

John

You know, financial advisors. And it's not just Edward Jones, we're not just picking on them. They just happened to be the ones that the class action lawsuit has been filed against. And you could also assume that if Edward Jones is the biggest and you're the plaintiff's lawyer's going after the most money, then you're going to file your class action lawsuit against the biggest. So just because this is Edward Jones doesn't mean that, you know, any other financial services organization isn't doing very similar things.

Lisa

Right. Well, you know, because there was almost like maybe a standard of practice in the business. I mean, you know, it kind of goes back to you don't get something for free. And if you have your money with a financial advisor and they have an office and a support staff and a computer and electricity, well there's a cost for that. And you may just think your advisor is the, you know, best buddy you ever had. But, you know, they have to make money somehow in order to support themselves and to support their overhead. So the service was never free, but you perhaps the cost of the service was kind of masked by the commissions that were being paid to the advisor from the various investments you made with them. And so this fiduciary rule kind of brought all that up to the surface about what the true cost is of actually using financial advisors to manage money.

John

Yeah. That's exactly right. And I know I've spoken to several Edward Jones people and most of them see this for what it is, which is a money grab, you know, but in talking with some of them personally, they have said, "Yeah, I do know other advisors that are guilty of this, including ones even within Edward Jones." So I mean, you know, even the ones within Edward Jones know that this does happen. What they're saying is that this is such a big widespread deal through Edward Jones and that's probably not true.

Lisa

Yeah. There are a few bad apples that are spoiling the whole bunch, is what they're saying.

John

Right. And the other part of all of this, and again, that's a little more than what we'll probably go into on the radio, is that, you know, it was that Obama era rule that essentially said a commission-based account is not viable. It's too much conflict of interest to operate under the fiduciary standard, or at least that's what many people interpreted it as. And so I think Edward Jones's response, in this case, is going to be, "Look, you're right in the sense that here's a person who was not paying any commissions and who is now having to pay an advisory fee. But if you want to sue somebody, sue Obama and the Department of Labor because they're the ones that created the rule that forced us to have to redo this person's account."

Lisa

Right. Yeah, because otherwise if they had left it with the commission-based account for the few folks who never changed anything or wanted anything changed in their account, then they're just setting themselves up for an attack that way if they left it with the commission base.

John

Yeah, that's exactly right.

Lisa

Just, you know, basically what they were having to do is going through and document, document, document, you know, why is it time to get out of this fund and into this fund? And there may be very perfectly legitimate reasons, you know, transitions in life, health issues, retirement, you know, actually finally actively retiring. There can be lots of reasons to change out of one investment to another, but instead of the advisor just doing that based on the discussion with their client, there was a lot of documentation and that could be questioned later.

John

Sure. Absolutely.

Lisa

Yeah, because it's not a science. Financial advising is a bit of an art form and everybody has different philosophies, you know.

John

A lot of which is hoping.

Lisa

Yeah. Well, that's true.

John

I mean, there are some fundamentals that are true, but you start getting into the, you know, trying to, you know, read the future and you might as well be throwing bones out...

Lisa

Well, and didn't Warren Buffet say he'll do a 10-year experiment if the index fund would out perform a managed fund? And it did.

John

Yeah, it does. It has almost every time. All right, we are headed back live.

John

Welcome back to "Aging Insight" everybody. This is your host, John Ross here, live in the studio with my co-host, Lisa Shoalmire. We're talking today about a couple of recent class action lawsuits that have been filed in and not necessarily what you need to know about the class action lawsuits themselves, but what you need to know about why they were filed...

Lisa

Yeah, what inspired them.

John

What inspired them and what you should be on the lookout for. We started with the one against Edward Jones. This is related to the switch over that they made primarily from commission-based accounts to managed accounts where they were just charging a fee and they're being sued for that because, you know, the argument here is that there were people that were paying essentially no fees because they were not...

Lisa

They were not switching investments and therefore not generating commissions.

John

Right. And so then Edward Jones switched those people over to managed accounts where they can charge them a percentage annually, even though they weren't making any trades. And so that's the basis of the lawsuit. Now again, we're not getting into whether or not that was right or wrong and you can assume that this sort of issue is across the financial services industry. It's not just an Edward Jones issue. What you need to know though, you'd need to know how your financial advisor gets paid.

Lisa

Yeah, I mean, if your financial advisor has an office and a computer and electricity and air conditioning and that's seem to be all they do to earn a living, well, then they're getting paid somehow. And you know, a lot of folks I think were, you know, almost under the mistaken impression that somehow that they were getting free advisory services, you know, because they would go deposit their money with an Edward Jones rep or something. And yes, there's an agreement and there were things discussed about there may be commissions associated with trades. But that really doesn't, you know, after kind of that initial, that doesn't get brought up a lot.

John

That's right. If you'd like to learn a little bit more about that, check out my podcast. It's called "Big Picture Retirement". You can find it on iTunes at "Big Picture Retirement", you can go on the website, bigpictureretirement.net. We have done an entire episode of the podcast on whether or not you're being robbed by your financial advisor. And it's got a lot of this information. We go into a lot more detail on it. But yeah, know how they're being paid and know whether or not that pay is appropriate and an industry standard. Is it too high, is it too low? Learn about how they get paid. Small changes to that will have drastic effects over the lifetime of your retirement funds.

Lisa

That's right. And John, for the most part, how a financial advisor gets paid is pretty negotiable.

John

It is often, yes.

Lisa

Excuse me, if you're on a fee-based account at this point, you're on a managed account, and your advisor is charging a .75 of a percent to manage your account, well, you might be able to go in and say, "I don't wanna pay you that much."

John

Yeah.

Lisa

How about .5 though?

John

No. Yeah, so lots of options there. All right, so that's the first one. The second class action that we're gonna talk about is one that has been filed against the state of Texas.

Lisa

Yes, the state of Texas. The state of Texas, they're familiar with class action lawsuits.

John

Yeah, they've been defendants, they've been plaintiffs.

Lisa

Right, and, you know, probably one of the biggest class action lawsuits that people are familiar with, that was filed against Texas, was the desegregation of the schools cases back in the 60's and 70's where judge Justice, I mean, if you're a judge and your last name is Justice...

John

That's awesome.

Lisa

...you were meant to be. But anyway, judge Justice through that class action suit, basically supervised the state of Texas school system for decades under that desegregation lawsuit. But now the state of Texas has been sued by an outfit, a nonprofit, I believe they're called Spectrum.

John

I think that's right.

Lisa

It sounds like a James Bond, but...

John

It does. Spectre.

Lisa

Okay, Spectrum had sued the state of Texas alleging that the Guardianship Programs and the guardianship laws as they exist presently in the state of Texas, result in abuse and neglect and financial exploitation of persons who are deemed to be incapacitated. And, you know, John, this is kind of a big deal because right now in the state of Texas, I think the numbers show that about 54,000 plus adults.

John

Yeah, over 54,000 adults under a guardianship in the state of Texas and the amount of financial assets is estimated to be in the billions.

Lisa

All right, so you've got 54,000 people under guardianship, which means they don't get to make decisions for themselves. Someone else is managing their financial affairs, someone else is making determinations about where they live and what kind of medical care they receive. And so, you know, some of these folks are developmentally disabled and have been disabled since birth. Some of these folks have had illnesses or accidents which have resulted in an incapacity later in adulthood. And of course the bigger growing area of these incapacitated folks are people as they age and they are affected by things like Alzheimer's and dementia or strokes that lead them, that render them unable to care for themselves or their finances. But, you know, John, we have lots and lots of rules about guardianships, which is what I was talking to the social workers this week about.

John

Yes, it is.

Lisa

But the problem is John, that we have 254 counties in the State of Texas and only a handful of those counties, I would say do a very good job of supervising the guardianships that are filed in their counties.

John

Right, most of the counties just don't have the budget, they don't have the tools, they don't have the resources. And that's in the ones that would like to try to do everything they can, they just don't have the manpower. That's not talking about the ones that we know specifically of who are actually out to get people.

Lisa

Yes, and we have run across some guardians that are actually out to get people and we have done our best to stop that when we have encountered it and to bring it to the attention of the courts. And I'll go on a little tangent here. I had one job recently where I brought it to the attention of the court as an attorney and the court fired me from the case because I don't really know why. I have some speculation about that but, you know, I'm trying to do the right thing by raising issues that we have a developmentally disabled adult who appears to be financially abused and mentally abused. And I bring that to the court and the court fires me.

John

Yes. That's exactly right. Well, it looks like we got a call here. Let's see if we can get them. All right, you're on "Aging Insights".

Lisa

inaudible 38:03 Yes, the more money equals the more evil is what the caller said. Which is not, that's not surprising.

John

Yeah, and in these Texas guardianship cases, that's often the case. Although you might be surprised that it doesn't take a lot of money to create some evil.

Lisa

No, it just takes somebody else's money.

John

It just take somebody else's money and, you know, a lot of money is such a personal opinion that you know, one person's hundred dollars and the next person's hundred thousand dollars are two different things. But you're right, and the more money you have... I spent the morning reading a whole big old long case about a guardianship abuse type situation, elderly abuse... crosstalk 00:38:45

Lisa

That's only good for bed on Saturday mornings.

John

Yeah, financial exploitation case and basically this lady was receiving $30,000 a month in income.

Lisa

That's a lot of money.

John

That was certainly enough for the unscrupulous predator to come out of the woodwork. inuadible 39:09 , you're still there?

John

John

John

Well, and that kind of goes back to some of the, like what we were talking about what the class action against Edward Jones. Right? And I'm not saying that they're crooks. They're not. There's some good folks that work with Edward Jones, but some, there are people in the financial services industries that are very, very smart and they're often dealing with very, very large sums of money.

Lisa

And they're very, very smart on how to get paid.

John

Right, and so whether you're talking about like your Bernie Madoff's, right? I mean that's a crook on the billion-dollar scale. So yeah, the more money, the smarter the crook often times.

Lisa

Yeah. So the caller is absolutely right about that, so thank you so much. And so John kind of going back to this lawsuit, this class action, you know, if you are compromised and incapacitated, you probably don't have the wherewithal to determine that you've been wronged to go out and hire an attorney and vet attorney who know what they're doing in this area and actually file a lawsuit. That's why in this case that it's really a class action lawsuit because this non-profit is basically picking up the mantle for all of these incapacitated persons and suggesting to the state of Texas that their programs and laws are inadequate to protect these folks.

John

And many of the court-appointed attorneys, especially the ones that are the most often appointed by the courts are just basically mouthpieces for the judges themselves and not advocates for the incapacitated people that they're supposed to be representing.

Lisa

Well, I'll give that an amen. So basically they're saying that, you know, the judges have their favorite attorney inaudible 41:09 to go out and visit with these guardianships and basically the attorney is supposed to be independent but, you know, the judge is the one who signs the paycheck. And once again we get into a conflict of interest and so if a judge has already decided how a certain guardianship should be set up, who should be the Guardian, you know, for an ad litem, you're supposed to be independent to come in and argue with the judge about that. Well, you're not going to get paid. And in fact, John, in this case where I got fired by the court because I've questioned them, I never got paid. And that is their way of saying, "Don't come back..."

John

Yeah, "Don't come back and be a problem."

John

John

"When you come in here and you don't do what we say to do, then you're gonna work and you're going to be working for free because we're gonna fire you and not pay you like we're supposed to." So yeah, there again, so the State of Texas is getting sued for that. Now we got one more we want to talk about. We do have to take one more break, so stick around, we'll be right back. All right. So yeah, Lisa and I could both go off on some rants on this one.

Lisa

Yeah. I think the class action is good. I think it will make our lives more difficult in some ways because we try to do everything right and by the book for our guardianships and if the rules and the book gets bigger, it just, you know...

John

Yeah. Unfortunately, all of those protections continue to add more work to get there that creates delays in situations that can't afford delays and they create costs often in situations where there's not money to cover those costs. You know, we've already seen that just in the last couple of years of where the costs have increased significantly because of background checks and certifications on behalf of ad litems and things like that. But, you know, you talk about like the attorneys, they don't mean, like we have law that says that they're supposed to maintain a list of certified guardian ad litems.

Lisa

And they're supposed to randomly...

John

They're supposed to randomly choose from that list of people. I'm not positive, but I'm pretty sure I am the first attorney that was on that list...

Lisa

And you've never been appointed.

John

...for Boone County. And I've never, never been appointed. That's how random it is. Yeah, the longest person on the list ever, 10 years, 15 years since they made the rule that created the certification, I have it. That year, bam, I was the first one to get it, I'm on the list and never have I been randomly selected. So yeah, it's hokum. Yeah, and not that I don't care, that's not the kind of work that I want to do but it does just bring up the point that I would rather be the one representing my clients than get into this situation of trying to decide, "Do I need to be the court's lackey and mouthpiece to get paid?"

Lisa

Welcome back everyone to our final segment on today's "Aging Insight" with Lisa Shoalmire, that's me and...

Lisa

Lisa

And today we're talking about some class action lawsuits, which...Gosh, it seems like that has to be the most attorney-lawyery thing we've talked about. But as we can see, we talked about a lawsuit, a class action against a financial services company for the way they've converted accounts and the fees that are being charged. So you out there need to know how your financial advisor charges. Also, we've talked about as a class action against the state of Texas about guardianship rules and how the incompetent and incapacitated are being exploited, what you should take from that is get your ducks in a row. You know, get your powers of attorney in place.

John

Yeah. If you end up in a courtroom, you have already lost. So yeah, do everything you can on the front end to try to avoid the necessity of something like a court guardianship. And you know like the caller said where the money's an issue, right? You may not be able to control how your brain affects you mentally, right, and so even with powers of attorney, if you go cuckoo out there and you start running up and down the streets naked as a jaybird, of course, law's gonna get involved, right?

John

John

And so we're gonna have to...we may end up having to get a guardianship, even though powers of attorney and stuff are in place, for the purpose of being able to protect you from yourself, right? But if while you were competent, you had secured your assets in something like a trust or something like that, we may be able to have a situation where the guardianship court has no say so over your money.

John

John

Right. And so that now we've taken the money out of the picture and often times that takes almost some of the weirdness that goes on in some of these situations. All right. So we've got one more class action we're going to talk about. And this is a lawsuit against Medicaid. And in this case, it's specifically against the state of Illinois, I believe, and how they administer the Medicaid program. Of course, Medicaid is a federal program, it's just that it gets run by the states themselves.

Lisa

Exactly. So every state has the same general rules about Medicaid programs, but each state gets to administer it themselves. And they put their own little spins on it from state to state.

John

That's right. And one of those federal rules, and particularly what we're talking about, is long-term care Medicaid because there are lots of different types of Medicaid programs out there. But we're talking about particularly nursing home type of Medicaid. And one of those rules is related to the fact that at the point where you apply for Medicaid benefits, the state has 45 days to process that application.

Lisa

Forty-five days, that's including Saturdays and Sundays.

John

Yeah, it's 45 days from the day you file the application. They are supposed to give you a thumbs up or a thumbs down within that time frame.

Lisa

Well, and of course, think about it, John, If you're needing a long-term care services and you apply for Medicaid, it means number one, you're broke, you don't have money to pay for the services. Number two, while you're being served with those services and you're actually in the long-term care facility, you're running up a bill.

John

That's right.

Lisa

And so the idea of the 45 days, there's lots of paperwork that goes in on an application for Medicaid because they are checking your assets, checking your income, checking to see about if you've made any transfers or gifts that are, that, you know, are against the rules of the program. So yeah, they are...the state is trying to do it's due diligence to make sure only people who qualify for the program are awarded the program. You know, here a lot of people gripe about too many people cheat and get welfare. And so this is a program that they check everything, but they have a timeline. They have 45 days to do that. And so the state of Illinois...and that 45-day timeline, John, applies in every state.

John

That's right. That's a statewide, United States-wide rule, because again, it's a federal rule. So they apply to all of the states. And, you know, on the one hand, I can say, "Well, you know, Medicaid eligibility, gosh, shouldn't be too hard to figure out within that 45 days." However, you know, like for example, with Texas Medicaid, we're required to fax the Medicaid application.

Lisa

Right. Yeah, we have to fax it in.

John

So first of all we're using a, you know...

Lisa

A 30-year-old technology.

John

Yeah, a 30-year-old technology, but on top of that the recipient fax machine for the State of Texas will only accept a 99-page transfer.

Lisa

And you wouldn't think that's an issue, except for the fact, John, that all of our Medicaid applications that we have filed are more than 99 pages.

John

Right. All of our Medicaid applications are longer than that because of, you know, you start thinking about all of the attachments.

Lisa

Well, and first of all, the application itself is almost 30 pages. So just the application is 30, but you have to provide bank statements.

John

Yeah, three months worth of bank statements, copies of insurance policies, and all kinds of other stuff that go along with it. And so yeah, there's a lot of documentation to go through. So yeah, I can understand that. And there are some exceptions where if, for example, they have to get a legal opinion, I think the rule says that they can go beyond that for something like a legal review.

Lisa

Yeah, beyond the 45 days.

John

Right, but even then, there are still some limitations in there. And apparently, what was happening in Illinois was that they're just not ever getting it done within the 45 days.

Lisa

Yeah. So you have families who are applying for assistance, applying for that care need that they have and they're never getting an answer. And John, the deal is a facility that is providing that type of care, they still have a payroll to meet, they still have electricity bills to pay, they have food to purchase. And what was happening is that the families were unable to pay anything for the care and would otherwise qualify for Medicaid, but the Medicaid's not ever processing the application, then these facilities were going months and months without payments on some of their patients.

John

Which is one one of the reasons that they can evict you. Right.

Lisa

Yeah, and you don't want your facility that you're happy with to go out of business because they can't pay their own bills.

John

That's right, and I'll say this is rampant in the state of Arkansas as well. Rampant, rampant. Which means, you know what, try to keep your stuff together, be organized. That will help with a lot of this, you know. Anyway, we're running out of time.

Lisa

I know, it blew by.

John

Yeah, it did. All right, well listen, I hope to hear from everybody on the Facebook page. Check us out next week, we'll be back here again.

Lisa

And I think we're going to head out to Chuck Wagons for Vets, out at the fairgrounds.

John

Yeah, I think we just might. So if you're out there, we'll see you then. Otherwise, we'll talk to you next weekend. Bye-bye.

Lisa

Bye-bye.

John

All right, and goodbye to Y'all as well out there in the Internet world.

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