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January 7th, 2009 JAMES PITKIN | News Stories
 

Estate Of Denial

Think prosecuting elder abuse will be easy under Newly passed Measure 57? Maybe not.

     
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DYING DAYS: The Hillsdale house where Warren Cummins passed away is now owned by his caregiver, Patricia McIntosh.
IMAGE: JAMES PITKIN

Fletcher Johnson was vacationing on the Italian seaside last fall when he learned in an email that his stepfather, Warren Cummins, had died at home in Portland on Sept. 24.

The news came from Patricia McIntosh, Cummins’ live-in caregiver. Johnson wrote back that his stepdad’s passing was “sad, even if not unexpected.” Cummins was 91, after all, and relied on McIntosh to provide for his basic needs.

But if the old man’s death didn’t surprise Johnson, the fate of his stepfather’s estate certainly came as a shock. Unbeknownst to Johnson, Cummins signed over his $492,000 West Hills home, plus securities and bank accounts worth up to $400,000, a month before his death. And he rewrote his will, leaving everything else to the same person.

The recipient wasn’t Johnson. Nor was it one of Cummins’ three adopted children. It was McIntosh, who had been his caregiver for just three months.

As Multnomah County investigates allegations of elder abuse in the case, two of Portland’s leading probate attorneys are squaring off in court to decide who should inherit the money Cummins made during his career as an accountant.

The case is one of more than 3,000 complaints of elder abuse Multnomah County investigates each year. And financial abuse is the biggest cause of those complaints,with caregivers often accused, says Mohammad Bader, adult protective services program manager for the county.

While state administrative rules prohibit “using the nurse-client relationship to exploit the client by gaining property or other items,” such cases are notoriously hard to detect and difficult to prove, Bader says, declining comment on this specific case.

As part of Measure 57, which voters approved in November, Oregon launches tough new mandatory sentences this month for people accused of targeting the elderly. But the fight over Cummins’ estate illustrates just how ambiguous and messy such cases can be to sort out.

No criminal charges have been brought in the case, though county officials told a concerned neighbor last month they’re working with Cummins’ family to investigate allegations of elder abuse. Police are not involved. The venue instead in the current fight instead is Multnomah County Circuit Court, where Cummins’ children are challenging McIntosh in a civil probate case.

According to court documents, Cummins—whose wife died in 2007—abruptly fired his former caregiver in May 2008 and hired McIntosh, a licensed practical nurse from Forest Grove. McIntosh is registered with the state and has no disciplinary record with the state Board of Nursing.

McIntosh and her adult daughter and granddaughter moved into Cummins’ 2,600-square-foot split-level ranch house on Southwest 19th Drive in the Hillsdale neighborhood and took full-time care of Cummins. McIntosh’s husband soon moved in as well—neighbors noticed his motorcycle and ATV parked in the garage, while Cummins’ pearl-white Cadillac sat at the curb.

Cummins’ will, written in 1974, left his money to his wife—or to Fletcher Johnson, her son from a previous relationship, if she died. But on June 23, a month after McIntosh moved in, Cummins wrote a new will giving McIntosh $50,000 and an option to buy his house. He left the rest to charity, according to the will written by Donald Winfree, Cummins’ longtime attorney.

When Cummins wanted to rewrite his will again a month later and leave everything to McIntosh, Winfree refused out of concern McIntosh was financially abusing Cummins. Instead, Cummins hired a new lawyer, David Harper, to complete the amended will on Aug. 13.

James Cartwright, McIntosh’s attorney and one of the city’s most respected probate lawyers, says McIntosh did nothing wrong. He says Cummins simply wanted someone to care for him until he died and chose McIntosh, whom he’d known for several years.

“This is a guy who frankly didn’t care what happened to his money,” Cartwright says. “This is not your typical gold-digger healthcare worker who manipulates a sick old man.”

That’s not the view of Cummins’ three adopted children, now adults living in Beaverton and Montana. They’ve been estranged from Cummins for decades, but now they’ve joined Johnson in fighting McIntosh’s inheritance. In court filings, they say McIntosh used “undue influence and fraud” to cheat Cummins.

McIntosh won the first round last month, when a judge ruled she should remain the estate’s personal representative. But bigger battles to take the house and money from McIntosh and challenge the will are still to come.

Lawyer Jan Kitchel, who represents the adopted children, is confident a judge will find McIntosh exerted undue influence over Cummins.

“The caretakers control the lives of the people they live with and take care of. They have to rely on them to drive to the store for food,” Kitchel says. “It becomes pretty easy for a person in that situation to impose their will.”


FACT: Measure 57, effective Jan. 1, targets elder abuse by making theft of $10,000 or more from someone over 65 punishable with a mandatory sentence of up to three years and nine months in prison.
 
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