Thursday, October 8, 2015
On October 4, CBS Sixty Minutes profiled self-driving cars. I kept expecting to see Becky Morgan on the program, given her interest in technology! I suspect, however, that she would be as perplexed as I was by the several comparisons of the car's speed controls to "driving like a little old lady."
At this point in development, even the most advanced design periodically signals for the human driver to take over when the car encounters un-preprogrammed facts. Plus, alas, the current version isn't prepared for driving in snow. Perhaps that's the consequence of all those engineers working on this in Silicon Valley in California.
Healthline News ran a story that made me sad, even though I know these scams happen. Growing Kind of Elder Abuse: Marrying Seniors for Their Money ran on September 15, 2015. The article quotes a California attorney whose firm handles financial exploitation cases who "[said] marrying for money is a form of elder abuse that is spreading throughout the United States." The attorney noted that this type of financial exploitation case is often unreported and hard to uncover. These "sweethart scams" happen to both sexes about equally. The article quotes the deputy director of the National Center on Elder Abuse (NCEA) that
[W]hile these scams can take many forms... a common scenario is that the elders have experienced a recent loss, such as the death of a spouse, and they find themselves befriended by someone younger.
“If children aren’t nearby or the person is isolated and depressed, they’re more vulnerable to this attention.... The difficult thing is that if the older adult has capacity to make decisions then they are entitled to do what they want with their money.”
The article provides some examples of actual cases and the variation among the states on capacity to marry as well as what actions to take if the elder is a victim of this scam.
Wednesday, October 7, 2015
PBS is premiering a six-part series on "The Brain with David Eagleman" on Wednesday evenings, beginning on October 14, 2015. It looks intriguing, with the following segments:
- What is Reality?
- What Makes Me?
- Who is In Control?
- How Do I Decide?
- Why Do I Need You?
- Who Will We Be?
The Albuquerque Journal recently profiled the creative mind behind this creative series. Neuroscientist David Eagleman grew up in Albuquerque although he now runs a lab for "Perception and Action" at Baylor University, where he also has a special interest in "neuroscience and the law."
I previously posted a new article from Consumer Reports on the cost of financial exploitation. Consumer Reports also ran an article about whether elder abuse is preventable. Lies, Secrets, and Scams: How to Prevent Elder Abuse. Seniors and their families lose billions of dollars each year to heartless fraudsters. Learn how you can help ran September 28, 2015. The article opens with a victim of the grandparent scam. Looking at the proliferation of financial exploitation, the article notes
Estimates of the crime’s frequency vary. A 2010 survey of seniors by the nonprofit Investor Protection Trust projected that 1 in 5 seniors had been taken advantage of financially. A study last year in the Journal of General Internal Medicine found that 4.7 percent of Americans—about 1 in 20—reported that they had been financially exploited in their later years. The study provided perspective: If a new disease struck that same percentage of older Americans, researchers wrote, “a public health crisis would likely be declared.”
The article discusses why elders are targets "[o]lder people’s vulnerabilities—including isolation, loneliness, generally trusting natures, relative wealth, and in some cases declining mental capabilities—make them ideal quarry for con artists. Even those whose cognition is intact can be swayed if they’re stressed or depressed, or recently have lost a loved one." The article paints a bleak picture regarding projection, noting that s "as baby boomers age, the pool of potential victims will expand, with assets ripe for the pickpocketing." The article reviews the reasons why victims may not report the exploitation, how the perpetrators work a scam and why some victims are exploited multiple times.
The article covers some successes when the victims (or families) report the crime and initiatives to fight elder abuse, mentioning specifically the DOJ elder justice initiative. The article concludes with photos and summaries of stories of 8 victims and a list of agencies that may help.
Tuesday, October 6, 2015
California Governor Jerry Brown signed the California legislature's "right to die" act on Monday, October 5. From coverage in the San Diego Union-Tribune:
Gov. Jerry Brown, a lifelong Catholic and former Jesuit seminarian, said he consulted a Catholic bishop, two of his own doctors and friends "who take varied, contradictory and nuanced positions."
"In the end, I was left to reflect on what I would want in the face of my own death," wrote the Democratic governor, who has been treated for prostate cancer and melanoma. "I do not know what I would do if I were dying in prolonged and excruciating pain. I am certain, however, that it would be a comfort to be able to consider the options afforded by this bill."
Brown's signature on the right-to-die legislation Monday capped an intensely personal debate that dominated much of this year's legislative session and divided lawmakers. Many lawmakers also drew on personal experience to explain their decisions to support or reject legislation making California the fifth state to allow terminally ill patients to use doctor-prescribed drugs to end their lives.
California joins Oregon, Washington, Vermont and Montana in permitting certain assistance in decisions to end one's life.
We have mentioned Hendrik Hartog's book, Someday All This Will Be Yours: A History of Inheritance and Old Age, (Harvard Press 2012) on this Blog as we did on this post outlining a recent symposium law review with articles inspired by the book. I've been remiss, however, in not recommending the book directly.
So let me correct that oversight now. If you haven't read Princeton Professor Hartog's book, or if (as was true for me for too long) you have allowed the book to sit on your "to read" stack, it's time to get to it. The book is a treasure of analysis, commentary, legal history, critique and provocation arising from the simple proposition that in many relationships, someone often utters (or thinks they have heard) words to the effect, "when I'm gone, someday, all this will be yours." The underlying legal question is what happens when no document (such as a will, a trust, or a contract) puts that pledge into writing.
I find much to talk about when reading Hartog's words. One curious item he describes is a poem, "Over the Hill to the Poor House," published by Will Carleton in 1872. Hartog explains that the poem is the source for the now common saying "over the hill" to refer to persons of a certain age. But Hartog points out that the poem's poignancy comes from its all-too-true narrative by one woman about what it can be like to grow old, frail and widowed, even if you have a large family of loving children.
From the closing lines of the poem:
An’ then I went to Thomas, the oldest son I’ve got,
For Thomas’s buildings’d cover the half of an acre lot;
But all the child’rn was on me—I couldn’t stand their sauce—
And Thomas said I needn’t think I was comin’ there to boss.
An’ then I wrote to Rebecca, my girl who lives out West,
And to Isaac, not far from her—some twenty miles at best;
And one of’em said’twas too warm there for any one so old,
And t’other had an opinion the climate was too cold.
So they have shirked and slighted me,an' shifted me about-
So they have well-nigh soured me,an' wore my old heart out;
But still I've borne up pretty well, an' wasn't much put down,
Till Charley went to the poor-master, an' put me on the town.
Over the hill to the poor-house--my chil'rn dear, good-by!
Many a night I've watched you when only God was nigh;
And God 'll judge between us; but I will al'ays pray
That you shall never suffer the half I do to-day.
And for a colorful "sung" version of the poem, with a change in gender for point-of-view, go to Lester Flatt and Earl Scrugg's version of Over the Hills to the Poorhouse.
Over 140 years later, we still hear the phrase "over the hill" in less-than-kind contexts, but one hopes the prospects for care and assistance are not quite as grim as described in these verses.
Does the amount $3 billion shock you:? What about $36 billion? According to an article in Consumer Reports, Financial Elder Abuse Costs $3 Billion a Year. Or Is It $36 Billion?, the exact amount is unclear. Here's how the $3 billion figure came about, according to the story:
When Consumer Reports recently reported on elder financial fraud, Lies, Secrets, and Scams: How to Prevent Elder Abuse, we used the number $3 billion. It comes from a study published in 2011 by the MetLife Mature Market Institute, in collaboration with the National Committee for the Prevention of Elder Abuse and the Center for Geronotology at Virginia Polytechnic Institute and State University. We rounded up from that study's estimate of $2.9 billion annually....
We chose that figure because a number of experts we interviewed thought it was a credible figure. But they—and an author of the study—admitted to us when we first reported it a couple of years ago that the figure probably represents the tip of the iceberg. The figure is probably far larger than that.
We have all heard the tip of the iceberg analogy with the number of cases of elder abuse, since we know that elder abuse cases are under-reported. The article goes on to explain the $36 billion figure which came from TrueLink which "projected that financial elder abuse costs families more than $36 billion a year," Their study used a more expansive view of financial exploitation, including fraud and scams as well as financial exploitation. The article notes that Investor Protection Trust estimates that 20% of elders have been victims.
The author of the article explains the title.
Though the article focuses on financial exploitation at the hands of strangers, the headline encompasses abuse by all types of con artists, including family members and people the senior knows. When discussing stranger-initiated abuse, we couldn't arrive at a figure that made sense to us. Experts I consulted through a listserve used by professionals in the elder-abuse prevention and treatment community couldn't agree on a figure themselves. However, several professionals I interviewed said they were comfortable with saying it was in the "billions."
The point of this difficult exercise is that no really one knows how big the problem is. But clearly, it's huge. And until seniors feel comfortable reporting their victimization—and there's a standard way to define it and a central place to report it—we'll never know the total impact. Here's hoping that day comes, so the individuals working to help victims and prevent the crime can get the attention and resources they deserve.
Assign this article to your students. It illuminates a number of the issues in these cases. Regardless of whether the total is $3 billion or $36 billion, the numbers are shocking.
Monday, October 5, 2015
Sorry for the short notice, but on Tuesday, October 6, 2015 from noon to 1 p.m. (Eastern time), the Pennsylvania Bar Institute is hosting a very timely (and cleverly titled) webinar, focusing on the impact of the Third Circuit's recent decision in Zahner on Medicaid planning generally and specifically on the sue of annuities.
Here is a link to PBI's details on "The A to Zahner on Medicaid Annuities," including how to register.
Illinois adopted a new law, Public Act 098-1093, effective on January 1, 2015 that assigns a "presumptively void" status to bequests made to non-family caregivers, if the transfer would take effect upon the death of the cared-for person. The law applies only to post-effective date bequests that are greater than $20,000 in fair market value. The statutory presumption can be "overcome if the transferee proves to the court" either:
1. by a preponderance of the evidence that the transferee's share under the transfer instrument is not greater than the share the transferee was entitled to receive under ... a transfer instrument in effect prior to the transferee becoming a caregiver, or
2. by clear and convincing evidence the transfer was not the product of fraud, duress or undue influence.
The law only applies in civil actions where the transfer is challenged by other beneficiaries or heirs.
(Fun) Spoiler Alert: The new law plays a clever "starring role" in the Fall 2015 season premiere of The Good Wife. Let's see how many of our law students were watching!
October 5, 2015 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Film, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)
DOJ's Elder Justice Initiative & Office for Victims of Crimes, along with the Corporation for National and Community Service announced the creation of the Elder Justice Americorps. According to the website
[E]lder Justice AmeriCorps, a new grant program to provide legal assistance and support services to victims of elder abuse, neglect and exploitation and to promote pro bono capacity building in the field. This effort will expand a partnership between the two agencies, which includes justice AmeriCorps, a legal aid program launched in 2014 by the Department of Justice and CNCS to serve vulnerable populations.
The Elder Justice AmeriCorps program, which is intended to complement existing Office for Victims of Crime grants to support the development of legal assistance networks providing comprehensive, pro bono legal services for victims of crime, will consist of a single grant to an intermediary organization that will support approximately 60 full-time AmeriCorps positions for each year of the two-year program. Interested applicants can review the Notice of Funding Opportunity at http://www.nationalservice.gov/build-your-capacity/grants/funding-opportunities/2016/americorps-state-and-national-grants-fy-2016#FGSAAA.
Friday, October 2, 2015
The National Consumer Voice for Quality Long-Term Care is hosting a free webinar on October 6, 2015 from 2-3:30 p.m. According to the announcement
The proposed federal nursing home regulations published by the Centers for Medicare and Medicaid Services (CMS) in July will shape nursing home care for decades to come. CMS needs to hear what consumers, their families and advocates around the country think about the rule. This is one of the most important opportunities you will ever have to impact what these new federal nursing home regulations look like. Comments are due October 14 by 5:00pm ET.
This webinar is designed to assist advocates in understanding the proposed changes and in participating in the comment process.
Eric Carlson of Justice in Aging and Robyn Grant of the Consumer Voice are the presenters. To register for this webinar, click here.
I've long been fascinated by the history of Atlantic Philanthropies (AP), starting when I first became aware of the behind-the-scenes role of the founder, Chuck Feeney, in funding extraordinary educational endeavors in Ireland, and, as I soon learned, also funding important social and health advocacy movements around the world. The end of AP as a multi-million dollar grant-making foundation is near at hand, although not the end of its impact.
Linked here is the latest report from the CEO of AP, Christopher Oechsli, with linked reports on AP's final grants, including its support for a groundbreaking National Dementia Strategy in Ireland.
Thursday, October 1, 2015
The Michigan Supreme Court recently invited amicus briefing by Elder Law attorneys and Disability Rights attorneys, in advance of oral argument in an interesting case involving a nursing home resident's claims of false imprisonment by the facility. The legal question of what is sometimes referred to as an "involuntary" admission for care initiated by family members or concerned others acting as "agents" for an unhappy or uncooperative principal, is important and challenging, especially if accompanied by conflicting assessments of mental capacity.
Following the Michigan Court of Appeals' 2014 ruling in Estate of Roush v. Laurels of Carson City LLC, in September 2015 the Michigan Supreme Court agreed to hear arguments on whether there are genuine issues of material fact on the resident's claim of falsely imprisonment for a period of approximately two weeks. Ms. Roush alleges the nursing home acted improperly in reliance on her "patient advocate," claiming that she was fully able to make health care decisions for herself, and therefore there were no legally valid grounds for her advocate to trump her wishes. Alternatively, Ms. Roush argued she validly terminated the patient advocate's authority.
In Michigan, individuals may appoint a statutorily-designated "patient advocate," with limited authority as an agent for certain health care decisions. Michigan law provides at M.C.L.A. Section 700.5506 that: "The [written] patient advocate designation must include a statement that the authority conferred under this section is exercisable only when the patient is unable to participate in medical or mental health treatment decisions...."
The Supreme Court's order identified specific issues for additional briefing by the parties. Further, the court expressly invited the "Elder Law and Disability Rights Section of the State Bar of Michigan. . . to file a brief amicus curiae. Other persons or groups interested in determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae."
October 1, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
The National Academies Press has issued a new report, The Growing Gap in Life Expectancy by Income: Implications for Federal Programs and Policy Responses. Here is a description from the book
he U.S. population is aging. Social Security projections suggest that between 2013 and 2050, the population aged 65 and over will almost double, from 45 million to 86 million. One key driver of population aging is ongoing increases in life expectancy. Average U.S. life expectancy was 67 years for males and 73 years for females five decades ago; the averages are now 76 and 81, respectively. It has long been the case that better-educated, higher-income people enjoy longer life expectancies than less-educated, lower-income people. The causes include early life conditions, behavioral factors (such as nutrition, exercise, and smoking behaviors), stress, and access to health care services, all of which can vary across education and income.
Our major entitlement programs ? Medicare, Medicaid, Social Security, and Supplemental Security Income ? have come to deliver disproportionately larger lifetime benefits to higher-income people because, on average, they are increasingly collecting those benefits over more years than others. This report studies the impact the growing gap in life expectancy has on the present value of lifetime benefits that people with higher or lower earnings will receive from major entitlement programs. The analysis presented in The Growing Gap in Life Expectancy by Income goes beyond an examination of the existing literature by providing the first comprehensive estimates of how lifetime benefits are affected by the changing distribution of life expectancy. The report also explores, from a lifetime benefit perspective, how the growing gap in longevity affects traditional policy analyses of reforms to the nation?s leading entitlement programs. This in-depth analysis of the economic impacts of the longevity gap will inform debate and assist decision makers, economists, and researchers.
You can download the report as a pdf for free, read the report online, or purchase a hard copy of the report for $64. Click here for more information.
Wednesday, September 30, 2015
Jeff Guo, writing for the Washington Post, recently offered a provocative look at "tontines" as a theoretical retirement planning alternative to "annuities." Apparently these are advocated by some modern legal and financial experts:
Economists have long said that the rational thing to do is to buy an annuity. At retirement age, you could pay an insurance company $100,000 in return for some $5,000-6,000 a year in guaranteed payments until you die. But most people don’t do that. For decades, economists have been trying to figure out why....
But there’s also some evidence that people just irrationally dislike annuities. As behavioral economist Richard Thaler wrote in the New York Times: “Rather than viewing an annuity as providing insurance in the event that one lives past 85 or 90, most people seem to consider buying an annuity as a gamble, in which one has to live a certain number of years just to break even.”
Here is where tontines come in. If people irrationally fear annuities because them seem like a gamble on one's own life, history suggests that they irrationally loved tontines because they see tontines as a gamble on other people's lives.
A simple modern tontine might look like this: At retirement, you and a bunch of other people each chip in $20,000 to buy a ton of mutual funds or stocks or whatever. Every year, the group withdraws a predetermined amount and divides it among the remaining survivors. You might get a bonus one year, for instance, because Frank and Denise died....
Want to know more? Read It's Sleazy, It's Totally Illegal, and Yet It Could Become The Future of Retirement. Hat tip to David Pearson for sharing this story.
The Center for Elder Rights Advocacy (CERA) has announced their upcoming webinar on October 8th, 2015. The webinar, Social Security Fraud, Similar Fault & Penalties will take place from 2 - 3:30 p.m. eastern. According to the website
CERA presents a webinar regarding the issue of clients reporting an overpayment involving allegations by Social Security of “fraud or similar fault.” These cases present unique challenges for the hotline attorney. Social Security’s rules on overpayments differ when Social Security finds that the overpayment resulted from “fraud or similar fault.” Normal due process rules for overpayments do not apply, and Social Security can assess additional financial penalties when an administrative determination is made that “fraud or similar fault” is applicable. This webinar will address ways to advise clients who receive a notice from Social Security alleging an overpayment involving “fraud and similar fault,” or who have an overpayment on their record with such a determination. The webinar is particularly directed toward legal hotline advocates and managers.
This webinar addresses:
A review of rules applicable to “fraud and similar fault” findings.
A discussion of differences in normal overpayment collection cases vs. fraud cases.
Giving competent advice to clients faced with an overpayment arising from fraud or similar fault.
To register, click here.
Tuesday, September 29, 2015
Over the weekend I caught an interview with Brian Liu, co-founder of LegalZoom, broadcast on From Scratch, a radio show about "entrepreneurial life." The host, Jessica Harris, who has an interesting business background of her own, is a very good interviewer, encouraging guests to explore strengths and weaknesses of their ideas, moving from first inspiration to current goals. She also asks "work/life balance" questions, often getting candid admissions of the private struggles some have to achieve balance.
I was intrigued with Liu's central premise, that his company does not compete, at least not directly, with law firms for business. Rather, he believes that the vast majority of clients are drawn to his company precisely because they would never go to a lawyer, whether because of cost, unease about attorneys, or perceptions about value.
It was also interesting to hear that Legal Zoom's first ten clients, accessing the company's on-line document portal on a Friday night, were seeking "living wills." That fact tells us a lot about underserved legal and health care needs, doesn't it.
September 29, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Web/Tech | Permalink | Comments (0)
My dear friend and colleague, Mark Bauer, sent me this article, Why More Seniors Are Forming Their Own 'Villages' .
The story features the establishment of Beacon Hill Village, where twelve
like-minded neighbors ... founded the Beacon Hill Village, a local group for independent seniors to meet and support one other through the elder years. By pooling yearly membership fees, members of the village pay for a small staff that helps them find services like drivers, cleaners, and handymen.
In 2002 they formally launched Beacon Hill village as a nonprofit (despite its name, the village doesn't own any property and has no physical housing component), and today count nearly 350 members. Their example has since spurred more than 170 other villages across the country, a growing experiment in how urban seniors can network with their peers—and empower themselves.
Members pay an annual fee which includes access to staff who assist residents in obtaining needed services (the village does not provide "direct services"). There are intangible benefits as well to this model. The story discusses the sense of community provided by this concept and its benefit to residents. The concept appears to be gaining fans.
In 2010 a national organization called the Village to Village Network emerged to help found new villages and connect existing ones. ... the network’s St. Louis-based director, said she expects the number of villages to double within two years. The average village has about 100 members, meaning such a rapid expansion would still only reach about 35,000 Americans in all. [The director] ... said lower-income members are underrepresented in the network at large, and that she and her colleagues hope to change that.
As the model expands across 40 states, managers ... are trying to reconcile exponential growth with an emphasis on neighborhood-scale relationships. Fundraising, too, presents a challenge. By design, membership fees barely cover costs at many villages, including Beacon Hill, so grants and foundations often make up the rest. That presents future villages with a tough choice: commit to the fundraising grind and the uncertainty that comes with it, or raise membership fees and risk shutting out lower-income neighbors.
The Beacon Hill Village website offers this description
Beacon Hill Village, a member-driven organization for Boston residents 50 and over, provides programs and services so members can lead vibrant, active and healthy lives, while living in their own homes and neighborhoods.
Benefits include access to discounted providers who can help you manage your household, stay active and healthy, and serve your driving needs. Our social and cultural programs are always changing to support member interests.
To learn more about Beacon Hill Village, click here. The Village to Village Network website describes the village concept as "Aging's new frontier". The website contains information about the various villages in the U.S., information about how to start a village, an interactive map, information about upcoming conferences, and more. Click here to learn more about the network. This is an interesting grass-roots effort that seems to be flourishing.
Monday, September 28, 2015
Thomas Jefferson School of Law is hosting its second annual student writing competition focusing on disability law. The Crane Writing Competition, named in honor of a Thomas Jefferson alum, Jameson Crane III, seeks to encourage student scholarship at the intersection of law and medicine, or law and social services. A central purpose is to further development of legal rights and protections, and improve the lives of those with disabilities.
Who can enter? The competition is open to currently enrolled law students, medical students and doctoral candidates in related fields, who attend an accredited graduate program of study in the U.S.
Deadline for entries? January 15, 2016 (by midnight, Pacific Standard Time) via electronic submission. For details see the competition website at Thomas Jefferson School of Law: http://www.tjsl.edu/cranewritingcompetition
What will be your topic? The competition accepts papers on a wide range of topics related to disability law, including legal issues arising from employment, government services and programs, public accommodations, education, higher education, housing and health care. This should integrate well with students currently taking or who have recently completed a seminar course, thus allowing that all important "double value" for good papers.
Prizes include cash ($1,500 to first place; $1,000 for each of two second place winners), plus potential publication.
My thanks to Professor Susan Bisom-Rapp for sharing news of this year's competition. She is coordinating the competition and you can send questions directly to Susan.
Sunday, September 27, 2015
Trying to keep straight all of the preventive services available to individuals is daunting, but the Kaiser Family Foundation (KFF) has made it easy with their new tool, Preventive Services Tracker. There are separate trackers for each condition including cancer chronic conditions, immunizations, sexual health, health promotions and preganancy-based. Organized into easy-to-use charts,, each chart provides information on the required service, the target population, the recommendation, coverage clarifications and effective dates. The charts also provide links for each required service to explain more details.
You might also want to check out their article on Preventive Services Covered by Private Health Plans Under the Affordable Care Act and the accompanying fact sheet.