Linda Kincaid

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Part I –

Public Guardian takes control of Gisela Riordan

San Jose, California resident Gisela Riordan, 84, prays every night for God to take her.  Imprisoned and isolated, she is denied visitors, phone calls, and mail.  Her arms are boney, and her cheeks sunken.  Her features stir memories of Holocaust survivors.  Forbidden companionship of her loved ones, Gisela languishes in despair.

Gisela has not been charged with a crime.  She has not been sentenced to prison.  No judge ordered her isolation.  Gisela lost her freedom with the stroke of a pen, when Judge Thomas Cain approved a conservatorship petition submitted by Santa Clara County Public Guardian Donald Moody.

Moody seized Gisela’s bank accounts in 2010 and sold her home in 2011.  Moody now uses Gisela’s own estate to keep her imprisoned at Villa Fontana, a residential care facility that will violate resident’s rights in exchange for payment.  Taxpayer dollars, authorized by the Santa Clara County Board of Supervisors, fund the Public Guardian’s abusive activities.

Before Conservatorship

Gisela Riordan was an active vibrant woman who lived life to the fullest.  Gisela and her companion of 17 years travelled the world together.   She zipped around town in a convertible, the wind in her hair and the sun on her shoulders.  Like many California transplants, she loved the beach and the waves breaking around her ankles.  Retired comfortably, Gisela and her son Marcus Riordan shared a pleasant townhouse in a desirable area of west San Jose.

March 12, 2010:  Petition for Conservatorship & Court Investigator’s Report

Kaiser Permanente contacted Adult Protective Services when Gisela was subject to physical and financial elder abuse by her bi-polar daughter.  At the time, Gisela had a full estate plan in place. Her son, Marcus Riordan, was designated in her Advance Health Care Directive, and Marcus was successor trustee for Gisela’s living trust.

Kaiser Permanente restricted Gisela from seeing Marcus. The Public Guardian petitioned for temporary and general conservatorship.  Court Investigator Herlinda Acevedo attached a report to the petition stating:

Ms. Riordan has been admitted to Kaiser Hospital 19 times in the last 12 months for depression, anxiety, atrial flutter, COPD, and issues related to complex family dynamics.

Gisela responded in a recorded phone conversation with Marcus.

Where did she get her numbers?  Out of thin air?

Acevedo’s report to the court further stated:

Ms. Riordan would like to return to her home, but has expressed reluctance to do this while her son is residing in the home.

Gisela responded in her phone conversation with Marcus.

She is a liar.  No way would I say that! We have lived together before.  That’s nothing I ever said.  That’s stupid.

It’s just stupid.  That’s false witness.  She could go to jail for that.

I’d like to come home and live with my son.  I want my money released…

I didn’t save that money for the, what are they called?  They took my money away from me.  They have no right.  I worked for that money.

It should be noted that Court Investigator’s reports were signed under penalty of perjury.

March 30, 2010:  Temporary Conservatorship

Based on false allegations submitted by Herlinda Acevedo, Santa Clara County Probate Court appointed Public Guardian Donald Moody as temporary conservator of Gisela’s estate and person.  The court also appointed Moody as successor trustee of Gisela’s estate. In an act of compassion, Judge Cain ordered Moody to facilitate visitation between Gisela and her children.

California Probate Code Section 2352(a) instructs:

The guardian shall select the least restrictive appropriate residence that is available and necessary to meet the needs of the ward, and that is in the best interests of the ward.

Section 2352.5(a) further instructs:

It shall be presumed that the personal residence of the conservatee at the time of commencement of the proceeding is the least restrictive appropriate residence for the conservatee.

Ignoring instructions in the Probate Code and orders from Judge Cain, Moody placed Gisela in a secured section of Villa Fontana.  Doors are locked.  No one can enter or leave without a passcode.  Moody’s office instructs Villa Fontana to call 911 should anyone try to establish contact with Gisela.

April 9, 2010:  Apathetic Counsel

The court appointed attorney Norman Anton (Toni) Christensen as Gisela’s counsel.  Mr. Christensen does not respond to phone calls or letters expressing concern about Gisela’s situation.

May 21, 2010:  Court Investigator’s Report

Court Investigator Herlinda Acevedo submitted a further report to the court.

There are allegations of verbal and emotional abuse and it appears the proposed conservatee has expressed fear of her son Mark.

In a May 24, 2010 phone conversation, Marcus asked Gisela if she wanted him to live with her.  Gisela responded:

You painted the whole house, the ceilings and everything.

I love you.  Not because you are my son, because you are a beautiful young man. 

I don’t know how much time I have left.  I want to be with you.

I asked you to move back, move back for Christmas.  I was the one that suggested it. 

Acevedo’s report was signed under penalty of perjury.  Gisela’s estate was billed $600 for each report prepared by the Court Investigator.

September 23, 2010:  General Conservatorship & Dementia Powers

The court appointed Public Guardian Donald Moody as general conservator of Gisela’s person and estate with Medical Authority and Dementia Powers for Administration of Medication.  Dementia Powers include authority for use of psychotropic drugs.   Although not approved for use in the elderly, psychotropic drugs are commonly administered as chemical restraint.

The petition for conservatorship stated that Gisela was incompetent.  However, Marcus raised concerns that Gisela was over-medicated or sedated during her competency evaluation.  Gisela’s court file includes highly questionable instructions from the Public Guardian to the doctor conducting Gisela’s evaluation.

This reporter visited Gisela surreptitiously in April 2012.  During those visits Gisela appeared alert and oriented, although horribly lonely.  She remembered my name from visit to visit, and she scolded me for arriving half an hour later than promised.

During a rare 15-minute visit with Marcus in honor of Mother’s Day 2012, Gisela appeared alert and oriented.  She remembered my name and my visits the prior month.  In a recording of that visit, Gisela repeatedly expressed her love for her children and her desire to see them.  She believed that she was in prison, a reasonable assumption given her situation.

Visitation Orders & Notice of Conservatee’s Rights

During the September 23, 2010 proceedings and again in subsequent hearings, Judge Cain ordered:

The Public Guardian shall, at his discretion, continue to organize, regulate, and control visits between the conservator and her adult children Marcus Riordan and Kelly Riordan-Woodle.

At no point did the court authorize the Public Guardian to isolate Gisela from all contact with the outside world. Indeed, California’s Notice of Conservatee’s Rights specifically states:

Unless the court has limited or taken the right away, the conservatee also retains the right to:

  • Receive personal mail,
  • Receive visits from family and friends,

That Notice of Conservatee’s Rights is present in Gisela’s court file.  That document is signed by Public Guardian Donald Moody.

Imprisoned & Isolated

In March 2010, control of Gisela Riordan’s life was given to the Public Guardian.  The Public Guardian seized Gisela’s assets, imprisoned her in a facility, and denied her contact with the outside world.

As of October 2012, Gisela is still imprisoned at Villa Fontana.  The Public Guardian still denies Gisela’s right to visitation.  The Public Guardian refuses to allow friends, advocates, or clergy to establish contact with Gisela and check on her welfare.

Gisela’s liberty and property were taken from her with the stoke of a pen.  Gisela was denied her right to a trial.  Gisela was denied her right to a jury of her peers.  Gisela was denied her right to face her accusers and to address the court.  Gisela was denied her right to counsel representing her interests.

A quirk of the Probate Code denies Marcus Riordan standing to sue for elder abuse while Gisela lives.  Standing to sue lies with the Public Guardian, who is Gisela’s abuser.  Marcus will gain standing only after Gisela dies.

 

 

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