In re Appeal of K.R.

VERMONT SUPREME COURT Case No. 2021-044
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org
Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
DECEMBER TERM, 2021
In re Appeal of K.R.* } APPEALED FROM:
} Human Services Board
} CASE NO. R-07/16-704 & R-04/18-225
In the above-entitled cause, the Clerk will enter:
Petitioner appeals pro se from the Human Services Board’s substantiation of him for
financially exploiting his elderly mother. We affirm.
The Department of Disabilities, Aging and Independent Living (DAIL) substantiated
petitioner for financial exploitation of his mother, a vulnerable adult. Petitioner appealed in 2016
and a hearing was delayed to allow petitioner time to obtain an attorney. In 2018, the appeal was
consolidated with a second substantiation. There were further delays to allow for discovery and
related to the COVID-19 pandemic. A hearing was held over two days in July 2020.1 The Board
ultimately affirmed DAIL’s determination.
The Board found the following. Petitioner became his mother’s power of attorney in
June 2004 and continued until her death in August 2018. Petitioner’s mother entered a nursing
home in 2015.2 Prior to entering the nursing home, petitioner’s mother lived with petitioner in
1 After the hearing, the hearing officer discovered that a portion of the hearing was not
recorded and disclosed this to the parties. The hearing officer indicated that he had taken notes
during the hearing and did not believe that the missing portion of the hearing interfered with his
ability to make complete and accurate factual findings. He also provided the parties with an
opportunity to resubmit testimony. Petitioner chose not to do so. On appeal, petitioner contends
that the substantiation should be reversed because of the unrecorded testimony. Petitioner fails
to demonstrate that the lack of the recording has prejudiced him. Petitioner has not identified
any evidence that he believes was offered during that time that the hearing officer failed to
consider or how that would have affected the result. Moyers v. Poon, 2021 VT 46, ¶ 43
(rejecting plaintiff’s argument that missing recording from trial required reversal where plaintiff
failed to identify “what testimony is missing from the court’s recording or how its omission
would assist him in arguing that the court erred in concluding that he failed to meet his burden of
proof”).
2 It was undisputed that petitioner’s mother met the definition of “vulnerable adult” as
defined in 33 V.S.A. § 6902(14).

2
her home. Petitioner has a background in nursing and was his mother’s caregiver. His mother
had social security retirement income of $1600 per month that was deposited into a bank account
that petitioner accessed and controlled as his mother’s power of attorney. He was also
designated as his mother’s “representative payee” for her social security income. After his
mother entered the nursing home, she became eligible for long-term care Medicaid coverage
with a monthly patient-share obligation to be paid to the nursing home. Failure to pay this
amount may be grounds to evict the resident. His mother’s patient share was $871 beginning in
June 2015 and $1460 beginning in November 2015. The patient share supplements the money
paid by Medicaid and includes a personal needs allowance for small personal necessities.
Petitioner made no payments of the patient share to the nursing home while his mother
resided there, accumulating an arrearage of several thousands of dollars. Petitioner objected to
paying the patient share on the basis that it was unfair, immoral, and irresponsible. He also
asserted that he required the money to maintain his mother’s home as his residence. Petitioner
was dissatisfied with the care provided to his mother but did not seek to move her to a different
location. Petitioner did not appeal the assessed patient-share amount.
In response to DAIL’s investigation for financial abuse, petitioner did not contest the fact
that he had not paid the patient share to the nursing home. Petitioner’s own evidence
demonstrated that he had used his mother’s social security income to pay for home heating fuel,
automobile repairs and insurance, food, household items, and other personal expenses. The
Board concluded that petitioner was using his mother’s funds for his sole benefit and that there
was no evidence petitioner’s mother authorized or directed him to purchase the items or services.
Petitioner claimed that he acted in good faith and used the money to maintain the house in hope
that his mother would return home. The Board concluded that it was immaterial whether
petitioner hoped his mother would return home because the evidence was clear that petitioner
used the money to benefit himself and not his mother. The Board concluded that petitioner’s
action exposed his mother to the risk of ejectment from the facility and depleted funds that could
have been used for her needs, and affirmed the substantiation. Petitioner appeals.
On appeal from the Board, “[o]ur review is . . . limited to determining whether the Board
applied the proper legal standard, whether the evidence before the Board reasonably supports its
findings, and whether the Board’s findings reasonably support its conclusions.” In re E.C., 2010
VT 50, ¶ 6, 188 Vt. 546 (mem.). In this case, the question is whether the Board erred in finding
that petitioner financially exploited his mother by “willfully using, withholding, transferring, or
disposing of funds or property of a vulnerable adult without or in excess of legal authority for the
wrongful profit or advantage of another.” 33 V.S.A. § 6902(6)(A).
The Board’s decision in this case is reasonably supported by the evidence. Petitioner
does not dispute that he received his mother’s social security income and did not pay his
mother’s patient share to the nursing home for his mother’s care. Petitioner’s own evidence
showed that he instead used his mother’s money for his own personal expenses and benefit,
including for his food, automobile repairs and insurance, and heating fuel. There was no
evidence that his mother authorized petitioner’s action. As a result of petitioner’s actions, his
mother faced possible eviction from the facility and incurred a large debt in unpaid fees.
On appeal, petitioner raises deficiencies with the process before the Board. He contends
that he did not have sufficient time to obtain witnesses before the July 2020 hearing. Petitioner
proffers that he would have presented testimony from witnesses regarding his status as the
representative payee for his mother’s social security payments and as his mother’s power of
attorney.

3
Even accepting that petitioner’s argument is preserved, petitioner fails to show how any
of the proffered testimony would impact the substantiation decision. The fact that petitioner was
designated as his mother’s representative payee for her social security benefit did not provide
him with authority to use his mother’s money however he wished. Similarly, the fact that
petitioner had power of attorney did not license him to use his mother’s funds for his benefit. As
power of attorney, petitioner was obligated, among other things, to act in his mother’s interest,
refrain from self-dealing, and avoid any conflicts of interest. See 14 V.S.A. § 3505(a). By using
his mother’s funds for his own benefit, instead of for her care, he acted outside the scope of his
authority.
Petitioner’s final argument is that he could not afford the patient share because he needed
to maintain his mother’s home for her possible return and that he was otherwise acting in good
faith. As explained by the Board, petitioner’s good faith and hope that his mother would return
to her home do not alter the fact that he used his mother’s money to benefit himself and not his
mother.
Affirmed.
BY THE COURT:
Harold E. Eaton, Jr., Associate Justice
Karen R. Carroll, Associate Justice
William D. Cohen, Associate Justice