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Vulnerable Voiceless: Apparent elder abuse through the eyes of Gary Cummings

COLORADO SPRINGS, Colo. (KRDO) -- We often protect those we love the most, nurturing and supporting our loved ones, especially our parents as they grow older.

But it doesn't always happen that way, especially for one elderly man in El Paso County, Gary Cummings.

Gary's story

At age 89, Gary often described his lust for life as his "most treasured gift." The athletic pickle-ball enthusiast, pictured below, enjoyed life on and off the court.

According to his friends who saw him three to four times a week, his competitive spirit was "thriving."

Here's what the group told us about Gary's demeanor in late 2018.

  • "He plays a mean game of pickleball"
  • "He was a happy-go-lucky guy. He had no care in the world."
  • "He was very happy... he smiled a lot."
  • "He was coherent and interested in other people."

During this time, Gary paid his longtime friend, Nefthali Capua to care for him.

The two lived together for seven years -- adventuring in Colorado and playing pickleball.

But, that all changed in a mere four months. Gary's life took a drastic turn.

"All of a sudden he's just gone," said Don Nelson, one of Gary's close friends.

Gary was isolated from his caretaker Capua, his friends; months later, his physical condition began deteriorating.

So how did this all happen? Let's go back to November of 2017.

  • Friends said Gary wanted landscaping work done on his home, but he was having trouble with his checking account.
  • In late Nov. of 2017, Gary transferred $35,000 to Capua, requesting Capua make a payment on his behalf.
  • The money was sent in three $10,000 increments. That immediately flagged Gary's bank and alerted the potential fraud to Adult Protective Services or (APS) who launched an investigation into Capua.
  • Yet documents prove Capua immediately transferred that money to the landscaping company. Weeks later, Capua was cleared from the bank.

Capua was cleared, but the investigation turned to Gary. APS deemed him incompetent, requesting emergency guardianship and conservatorship.

This isn't uncommon.

A guardian is the legal caretaker of an incapacitated person. Whereas, a conservator is financially responsible for someone physically and mentally incapable.

But, Gary didn't fit either description. And there's video to prove it. Fourteen months after Gary was declared mentally incompetent, he's seen in the video doing his taxes on March 4, 2018. Nearly a year after being declared physically incompetent, Gary is seen playing competitive pickleball.

Gary felt his competency evaluation was rushed and biased, according to a phone recording of him describing the demeanor of the psychologist who evaluated him.

"The psychologist... and he comes up and says he's starting to go [motioning to his head] he can't do any of this," said Cummings.

Yet, despite proof of his good condition -- Gary Cummings lost all personal and financial freedom.

Records show that Tammra Hasling, the former temporary conservator assigned to Gary's case, took control of his bank accounts, property, and other assets. Yet documents show Hasling failed to pay a number of Gary's bills like utility accounts, credit cards, sports club membership dues, and property taxes on his $622,000 home.

That's five failed payments. Yet, Hasling faced no penalty.

Investigative Reporter Stephanie Sierra questioned Hasling about that.

"I'm just trying to understand why that wasn't done?" Sierra asked.

"I can't answer that question," Hasling said. "I will have to ask my attorney if I can talk to you."

Gary's case turned over to the permanent conservator, Janice Eder. From there his assets were liquidated and in mid-April of 2019, Cummings was forced from his home into a nursing facility that prohibited visits from nearly all his friends.

Except one, Gary's close friend, Don Nelson -- who managed to see Gary by mistake of the nursing staff.

"He had lost a lot of weight, he was sad, and he tried to get away and they drugged him," Nelson said.

During that visit, Nelson said Gary gave him a letter pleading to leave the nursing facility.

"The first thing he said was, 'Get my bag, I want to get out of here,'" said Nelson, before he was asked to leave.

The following day, Nelson tried to visit. But, Gary was moved.

"I don't even know where he is," Nelson said.

Rumors spread Gary was sent to another nursing home. But, exactly where remains a mystery.

What we do know is Gary's children filed the petition stating they believe their father is incompetent. Yet according to Nelson, Gary hasn't been in contact with his children for years.

I tried calling each of Gary's four children to get their side. I didn't receive a call back. But, after the story aired our team received an email from the family attorney, Robert Erler.

The message wrote:  

"We wish to state that we, as Gary’s family, have been closely involved and carefully watching throughout all of our dad’s court proceedings to make sure that his best interests are being looked after. We have and continue to fully support what APS, the Court and the professionals have done and are doing to protect our father. Our dad is safe and doing well in large part because of what these professionals have accomplished."

The email also pointed out there are legitimate reasons why Gary’s privacy, including his location, are being protected. But those reasons were not disclosed.

We sat down with attorney Terrence Doherty, who has experience fighting elder abuse cases. He said most often the motive is simple.

"9 out of 10 times... it's greed," Doherty said.

While we can't confirm that's the motive for Gary's case, failed payments and unexplained isolation point toward his current caretakers, conservator Janice Eder and guardians Kyndra Carpenter and Genie Black.

We wanted to know why Gary is being isolated from his friends, why he is being forced to live somewhere he hates, why evidence proving his competency is being ignored, and most of all, why a seemingly alert 89-year-old deteriorated in a mere three months time?

We brought these questions to his conservator, Janice Eder.

"I understand you are the conservator for Gary Cummings," said Sierra. "Can you explain to us why Gary has been isolated from his friends for 10 months now? We want to hear your side."

"Uh, you have to go through my attorney," Eder said.

We tried to ask Eder why she failed to pay property taxes on Gary's home. But, she refused to answer.

We've since received a letter from Eder's attorney, Jack Donley.

"KRDO does not know who it is dealing with. It does not know why the court appointed professionals and the court took the drastic measures they took. At best, that is reckless and constituted a wilful and wanton disregard for Mr. Cummings' rights and feelings as well as his safety and well being. It is outrageous," Donley wrote.

Nefthali Capua, Gary's former caretaker, was previously arrested for neglect and violating his restraining order -- both charges pertaining to Gary's case. It's unclear where the criminal case stands.

El Paso County's Adult Protective Services responds to roughly 3,500 reports of elder abuse and exploitation each year. Yet many of those reports aren't getting the attention they deserve as cases continue to get backlogged at the county courthouse.

The guardians requested Gary be prohibited from having any contact with any of his friends. We're told that request was granted by Judge Robin Chittum.

Investigations / Local News

Stephanie Sierra

Stephanie is an anchor and investigative reporter for KRDO. Learn more about Stephanie here.

Comments

14 Comments

  1. Judge Robin Chittum I have had my own dealing with her. This was the first court that I have ever heard of where ordered a specific company be used and paid for by a person involved in a hearing before her. Not choose from a list but you must use this company and only this company!

  2. This happens way too often to one of the most vulnerable populations. We need to create some legislation to stop it! Perhaps the competency hearings need more oversight, and conservators overseen more diligently. It is not right that elders are stripped of everything they have by the greedy. It is too easy for them!

  3. You’ve done a great job of scratching the surface… APS having annual contracts with a company agreeing to take cases; violent felons employed and in direct contact with vulnerable adults; conservators found iver billing. Clients and not remived from the case, only asked to repay…I can go on and on since I worked for both of these women.

      1. How can we help them, and also ourselves, because any of us can find ourselves in the same situation. Do we need to start having elders do protests?

        1. We need legislation! There are no checks and balances. No one to really hold these companies accountable. There’s no stats or really any way to keep teack of the system at all. Absolutely no accountability because the guardians and conservators lawyer up immediately wit. the wards money. Essentially the entire system is anti-elderly.

  4. It is so sad that these people can do anything they want to the elderly and there is no oversight on guardians or conservators. They like the money and love the power. They are not human beings in their eyes but a paycheck! It is so sad and I have experience in seeing it happen. Help your elderly loved ones so they don’t fall in these peoples hands. APS hands them over because they want to be done with the case as soon as possible. No regards for the well being at all. Bottom line! There isn’t even a law on felons working for companies. It is an absolutely a disgrace

  5. It is true that vulnerable people of all ages need protection, and this is particularly true of the elderly. The comments from the parties above all reveal a lack of knowledge about how this occurs, not only in this specific case but how the system works in general. 1st, the court is not and does not “choose” a specific company – companies are nominated by the various parties involved in the case. This can be anyone from family members, guardian ad litems, attorneys appointed to represent the protected person or family members, friends, and so on. The court always has the discretion to refuse an appointment to any individual or company. 2nd, there is a system in place to hold guardians and conservators accountable. Each party must make a yearly report, and in the case of the conservator must account for every penny spent, as well as seeking court approval for a financial plan at the outset of a case. Court monitors review every report by the guardian and conservator. At any stage, the court can and does challenge fees and charges, and in my experience has denied payments at times. Most professionals who do this work locally take their responsibilities extremely seriously, and that includes acting in the best interests of their clients. Have there been abuses of authority and finances? Of course there have, but in general, these abuses are minimal. Unfortunately, the negative publicity that even 1 of these cases generates attracts more attention than 100 positive stories. Here’s some statistics: In almost 60% of elder abuse and neglect incidents, the perpetrator is a family member. Two thirds of perpetrators are adult children or spouses. Elder abuse includes financial exploitation. The report from KRDO is one sided and incomplete, and doesn’t take into account all sides, because the professional’s side is constrained by confidentiality, which is evident from the way the story is presented. Gather your facts carefully, consider what you say, don’t make unfounded or ill informed statements with what you think you know because you read something, or someone you know made some statement about being allegedly abused by the court or some professional, or you heard from someone else with an axe to grind. Question these sources closely. Above all, think.

  6. To “Concerned Professional”: Like many associated with the guardianship industry, you invoke the aura of authority associated with the courts to defend a broken system. Yes, there are good judges out there. But there are also well documented instances of judicial abuse. Please read Rachel Aviv’s brilliant New Yorker article “How the Elderly Lose their Rights” for a description of the contempt that Las Vegas hearing master Jon Norheim showed for the elderly individuals and family members who passed through his courtroom. For years, Norheim and his supervising judge, Charles Hoskin, approved the actions of April Parks, a professional guardian who was later convicted of felony elder exploitation, theft, and perjury. The fact that some of the commenters do not understand the fine points of how a professional guardian is appointed does not prove that cronyism does not play a role in the appointment of certain guardians. Please see Gretchen Rachel Hammond’s exhaustive expose of the Michigan probate system. http://voiceofdetroit.net/2019/08/25/the-fortress-probate-courts-enrich-guardians-conservators-take-homes-liberties-lives-of-wards/ The attorney public administrators described in Hammond’s series were later removed from their posts—but they were allowed to keep their lucrative guardianship appointments. Yes, concerned family members can spend huge amounts on legal fees in an attempt to remove a particular guardian. But in the absence of an ongoing criminal investigation of that guardian, the appointment will most likely be upheld. From my understanding of the case described by KRDO, the conservator may be justified in keeping Gary’s former caretaker away from Gary while a criminal investigation of alleged neglect is taking place. Keeping Gary’s fellow pickle-ball enthusiasts from visiting him, however, is nothing short of severe emotional abuse. The conservator is also guilty of neglecting Gary’s physical health in not allowing Gary to leave the nursing home to engage in his beloved form of exercise. As an individual who has been stripped of Constitutional rights by the probate court system, Gary no longer has the protected freedom of movement that federal CMS regulations provide to other nursing home residents.

    I also challenge your assertion that a yearly review of a guardian’s accountings is sufficient to protect a senior from financial abuse. In most counties, the review is cursory. In some cases, judges have approved ridiculously high legal fees, as in the case described in this news report.
    https://www.youtube.com/watch?v=sNUPmsarzNc&feature=emb_title

    You state that “most” professional guardians working in Colorado Springs are ethical. I have no reason to doubt your assertion. But the media plays a critical role in exposing abuses. All too frequently, guardians use “confidentiality” as a cloak for abusive actions, as shown in this investigative report on Florida ward Willi Berchau. https://www.abcactionnews.com/news/local-news/i-team-investigates/the-price-of-protection Willi’s guardian placed him in a locked dementia ward despite the fact that neuropsychological testing showed no evidence of dementia.

    I urge everyone watching the KRDO to go to the Americans Against Abusive Probate Guardianship website, http://www.aaapg.net, to learn more about abusive guardianship—before you are the next victim.

    1. The other grave concern is oversight and education. Do you know what the requirements/qualifications are to become a professional guardian or conservator? NONE! No formal education, no on-going elder training. Your guardian doesn’t even need to be CPR certified or first aid trained. My biggest question is: why, after all the investigating and then clearing of his friend, wasn’t he allowed to be his court appointed guardian? He was cleared of all charges, had a history of friendship and trust with the “ward”, and was familiar with his financials. His friend was more qualified that “professional” in the case. Another statistic I would like to see is how many that get trapped in the system ever get out?
      There are SO many issues that need to be addressed.

  7. The concerned professional is saying a yearly report is closely monitored? With my experience some reports are turned in with 20 different reports monthly if it is a company. Versus with a family member turning in one is gone through more thoroughly I’m sure. Turning a report in yearly to many people is not being monitored closely. I know companies have been caught for financial exploitation yet the money has been spent by the time they are caught and these vulnerable people’s money has already been spent. I’m sure the concerned professional knows this happens as well. I would love to hear about the court system monitoring felons in companies of conservators or guardians and who monitors that seeing the person who owns the company or business only needs to turn in their background. Why not all employees working for a particular company? Does the court system trust companies to monitor their judgment? That was my personal question. The story did not cover that. What about seclusion from family and friends? When family or friends did not do anything and are not able to speak to their loved one? These are questions I just have for the concerned professional because it seems you are not addressing everything in the story. Both ladies did have the chance to give their side but chose not to speak to KRDO.

  8. My wife and I are very good friends of Gary and had the privilege of having dinner with him at his house several times. He told us everything this Mob did to him. He showed all the documents showing what this Mob did to him. And watch out guys, my next post will reveal all the details what this Mob really did to our friend Gary. And you – concerned professional, will see it for yourself if this is fair for Gary.

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