Friday, March 27, 2015
As reported in the ABA Journal, "A New Jersey lawyer has been sentenced for 10 years in prison for her part in a scheme to steal $3.8 million from 16 elderly victims:"
Prosecutors say the group took control of the finances of their victims by forging a power of attorney or obtaining one under false pretenses. They then added their names to the victims’ bank accounts and transferred the victims’ funds into accounts they controlled. As part of a plea deal with prosecutors, Lieberman has agreed to pay $3 million in restitution and testify against her co-defendants.
Here are more details. And here. And here. And here. And according to one news source, the attorney actually served on the New Jersey Supreme Court's Ethics Committee while already engaged in misusing client funds. Hat tip to retired New York Attorney Karen Miller, now living in Florida, for sharing a link to the ABA Journal article on this sad set of facts.
I thought it fitting to end the week with a recent story from the New York Times. You know that old saying that goes something like this "you are only as old as you feel"? Well according to Social Security, a whole bunch of us are a lot older than we are.... The A.P. ran an article on March 16, Flawed Social Security data say 6.5M in US reach age 112. The article notes that the reality is only about 42 people in the world are that old. So what about the other 6.4+ million others? According to the article, lack of death certificates can be a partial explanation.
But Social Security does not have death records for millions of these people, with the oldest born in 1869, according to a report by the agency's inspector general.
Only 13 of the people are still getting Social Security benefits, the report said. But for others, their Social Security numbers are still active, so a number could be used to report wages, open bank accounts, obtain credit cards or claim fraudulent tax refunds.
The Senate Committee on Homeland Security & Government Affairs held a hearing on SSA and death records on March 16, 2015. The solution is a bit more complicated than you might think, according to the article. Think about paper records and how time consuming it is to convert them to electronic records. Social Security is concerned about whether 6.5 million people are alive or not, but "the inspector general's report did not verify that any of the 6.5 million people are actually dead. Instead, the report assumed they are dead because of their advanced age." An SSA official was quoted as saying "our focus right now is to make sure our data is as accurate and complete as it can be for our current program purpose,... Right now, we're focused on making sure we're paying beneficiaries properly, and that's how we're investing our resources at this time."
Thursday, March 26, 2015
Pennsylvania's New Pro Rep Rules Target Financial Accountability for Lawyers, Including Restrictions re Sales of "Investment Products"
New rules supplementing Pennsylvania's Rules for Professional Conduct, adopted by the Pennsylvania Supreme Court in late 2014, are intended to require greater accountability by lawyers for handling of client funds, including sums temporarily deposited in IOLTA accounts. The rules became effective on March 1, 2015. As we reported on this blog earlier, including here and here, the changes were an important response to disturbing instances of individual attorneys who stole client funds -- in the aggregate amounting to millions of dollars -- that they had purported to "invest" for the clients.
On March 25, I had the interesting task of serving as a moderator for a meeting hosted by the Elder Law Section of the Pennsylvania Bar Association to explore the implications of the new rules. Panelists included attorneys Stephen K. Todd and David Fitzsimons who have each served on the Pennsylvania Disciplinary Board. They were involved in either the drafting or implementation stages for the new rules. Also helping to set the stage were two additional panelists, practicing elder law and estate planning attorneys, Linda Anderson from the east side of Pennsylvania and John Payne from the west side of the state.
The audience included attorneys from a range of practice areas around the state, as well as Pennsylvania Supreme Court Justice Debra Todd. The dialogue following the panelists' opening remarks was robust, demonstrating support for the increased standards for record-keeping and safe-keeping of property, as well as enhanced powers for the Disciplinary Board to investigate suspected misconduct and demand accountability and disciplinary compliance.
Many of the comments and questions focused on a single new rule, reportedly the first in the nation, that addresses the role of lawyers with respect to "investment products," defined to include annuity contracts, life insurance contracts, commodities, investment funds, trust funds or securities.
The key provisions of new Rule 5.8 provide:
March 26, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 25, 2015
In advance of his appearance and in preparation for his focus on "Special Needs Planning," Stephen Spano, who is board certified as an elder law attorney by the National Elder Law Foundation (NELF) and whose firm concentrates its practice on elder law, estate planning and special needs planning, asked the students to watch two very interesting -- indeed inspiring -- Ted Talk videos.
Here is his first assignment -- and I look forward to seeing how he uses both videos with our students:
His second assigned video "homework" is from Aimee Mullins, who talks about "My 12 Pairs of Legs."
A new book about Social Security has been getting some buzz since its release last month. Get What's Yours: The Secrets to Maxing Out Social Security is published by Simon & Schuster and authored by Laurence J. Kotlikoff, Phillip Moeler & Paul Solman. Here is an excerpt from the publisher's website
Learn the secrets to maximizing your Social Security benefits and earn up to thousands of dollars more each year with expert advice that you can’t get anywhere else. Want to know how to navigate the forbidding maze of Social Security and emerge with the highest possible benefits? You could try reading all 2,728 rules of the Social Security system (and the thousands of explanations of these rules), but Kotlikoff, Moeller, and Solman explain Social Security benefits in an easy to understand and user-friendly style. What you don’t know can seriously hurt you: wrong decisions about which Social Security benefits to apply for cost some individual retirees tens of thousands of dollars in lost income every year. How many retirees or those nearing retirement know about such Social Security options as file and suspend (apply for benefits and then don’t take them)? Or start stop start (start benefits, stop them, then re-start them)? Or—just as important—when and how to use these techniques? ...
The New York Times ran an article about this book on March 13, 2015. The Social Security Maze and Other U.S. Mysteries discusses the book as well as the intricacies of Social Security. Those of us elder law profs who cover Social Security in our classes know how complex it can be. As the article illustrates, it is more complicated than even we thought.
Given that there are 2,728 core rules and thousands more supplements to them according to the authors, it pays, literally, to seek out a guide...
The book’s success is also, however, symptomatic of something that we take for granted but should actually disgust us: The complexity of our financial lives is so extreme that we must painstakingly manage each and every aspect of it, from government programs to investing to loyalty programs. Mr. Kotlikoff’s game has yielded large winnings for his friends and readers (and several dinners of gratitude), but the fact that gamesmanship is even necessary in the first place with our national safety net is shameful.
The lead author explained how he came to this point "[s]oon, Mr. Kotlikoff was developing a computer model for various payouts from the government program and realized that consumers might actually pay to use it....From that instinct, a service called Maximize My Social Security was born, though it wasn’t easy to do and get it right. 'We had to develop very detailed code, and the whole Social Security rule book is written in geek,” he said. “It’s impossible to understand.'” The article goes on to illustrate some complexity by using as example health savings accounts and discuss why a well-intentioned law has become so complicated.
We all know it is a complicated program, so it's great to have another resource available to help explain everything. The book is available in hard copy or as an e-book either from the publisher or other book sellers.
Tuesday, March 24, 2015
The Alzheimer's Association's 2015 Facts & Figures Report that many doctors fail to tell patients (or their family members) about a diagnosis of Alzheimer's is getting a lot of attention, including this Morning Edition story.
Why aren't doctors revealing their diagnoses? During my work in Northern Ireland on access to justice for older adults, we realized that the doctor's diagnosis is a key opportunity for families to receive early advice about "non-medical" planning, such as arranging for powers of attorney or other arrangements for financial management, while the patient has adequate cognition to help with decision-making. If communication of the diagnosis is delayed, the window for effective participation in planning may also be lost.
Has Acceptance of Same Sex Marriage Created Opportunities for Recognition of Other "Family Relationships?"
Columbia Law Professors Elizabeth S. Scott and Robert E. Scott have a new article, "From Contract to Status: Collaboration and the Evolution of Novel Family Relationships." They describe the successful movement to achieve marriage rights for LGBT couples as creating potential opportunities for recognition of other legal relationships that do not depend on "traditional" notions of marriage or family, such as "cohabiting couples and their children, voluntary kin groups, multigenerational groups, and polygamists."
In analyzing relationships that may gain greater legal recognition, the authors examine the possible influence of statutory obligations, including Pennsylvania's filial support laws used to impose care obligations on adult children, or more recent statutes granting visitation rights to grandparents:
"Probably the strongest candidate for full family status is the linear family group composed of grandparent(s), parent(s), and child(ren). It is clear that this familiar type of extended family can function satisfactorily to fulfill family functions. Further, the genetic bond among the members, together with well-defined family roles, reinforces already existing norms of commitment and caring. The primary challenge for these extended families may be the creation of networks with other similar families pursue their goals of increasing public support and attaining official family status.More complex multigenerational groups pose a greater challenge because they are less familiar to the public and less likely to be bound by family-commitment norms than are linear family groups. Partly for this reason, regulators may find it more difficult to verify the family functioning of these unconventional multigenerational groups."
The article was published in the Columbia Law Review, March 2015.
Monday, March 23, 2015
Ever been asked that question "how's your health?" (or any of the derivative questions, such as "how are you" (to which you typically respond, "fine, thank you and you?") or "how are you feeling?") You typically respond "fine, thanks", unless you are talking to your doctor, and then you may be more specific. But typically when a person is asked to describe her health, she may not list her chronic conditions that may come with aging.
Jane Brody's March 2, 2015 blog post on Healthy in a Falling Apart Sort of Way opens with her relating how, when filling out a medical questionnaire asking her to evaluate her health, she typically checks the box "healthy." After sharing how she really is with the readers, she then turns to a discussion of how health is really measured, quoting some experts that "note that the ability to continue to participate in society might be more important than measured gains in health. The ability to cope with life’s ailments might be more a more important and realistic measure of health than complete recovery."
She then considers modern medicine "[t]he widespread belief that medicine today has the potential to prevent most health problems or detect them early enough for a cure has succeeded in “medicalizing” modern life and raising the costs of medical care to unsustainable levels." She looks at the different theories regarding preventive care, testing and early intervention. She reviews the W.H.O. factors for using health care and ends with advice from one of the experts who suggests using caution and good judgment when choosing medical care.
So what does it mean to be healthy in 2015?
"Alzheimer's disease has been described as 'the great unlearning.' But what does it reveal about the nature of human identity? What remains when memory unravels? Alan Dienstag is a psychologist who has led support groups with early Alzheimer's patients, as well as a writing group he co-designed with the novelist Don DeLillo. He's experienced the early stages of Alzheimer's as a time for giving memories away rather than losing them."
The website offers poems and essays from the writing group.
Sunday, March 22, 2015
The New York Times ran an editorial on March 14, 2015 regarding efforts in states to pass aid in dying legislation. Offering a Choice to the Terminally Ill reports that DC & 15 states are considering such legislation. The editorial describes two recent cases, reviews the opposition, and considers the safeguards provided in the Oregon statute as an example. It also describes situations where doctors provide patients with lethal dosages of medications despite laws to the contrary, noting that "these unregulated practices put patients and doctors on dangerous terrain." Referencing the case of radio host watching her husband who had stopped eating over a period of days, the editorial board says about that case "[h]er inability to help him die humanely is a situation no spouse should have to face."
Friday, March 20, 2015
The cutline for the recent New York Times opinion piece on "How I Buy Weed" caught my eye: "Most of us customers are in late middle age. Soon we'll be in knee braces, panting up the stairs to our dealer's apartment."
Several years ago, a student in my Elder Law course proposed to write his paper on "medical marijuana for seniors." I was skeptical, and pushed him fairly hard on the law and science. (I admit I wanted to make sure this wasn't a bit of a hobby topic for him, bridging all of his upper division paper courses -- I didn't want this paper to be the latest in a series on "Anti-trust implications of marijuana sales," "First Amendment implications of marijuana use," "U.C.C. implications for marijuana sales," etc.) But my concern was met fairly and the well-written and researched final paper earned an appropriately high grade. Some time later, I received a request for a job reference for him as our graduate, from an organization in a western state that was advocating medical marijuana. He got the job. It was the easiest reference I have ever written -- and, by the way, the state in question now has legalized medical-use marijuana.
So it was with bemusement that I read the New York Times article -- and the colorful comments posted in response. Sometimes it is surprisingly easy to find "elder law" related items for this Blog!
Have you seen the number of articles that have been released about ABLE accounts? Here's a chance to learn more: the ABLE National Resource Center has announced a free webinar on ABLE on March 26 from 2-3:30 edt. This is a collaboration between ARC, National Disability Institute, Autism Speaks, National Down Syndrome Society, and the College Plan Savings Network. According to the website, Understanding ABLE will cover the facets of ABLE, implementation updates and time for Q&A. To register, click here.
Thursday, March 19, 2015
The National Academy of Elder Law Attorneys (NAELA) recently submitted detailed formal comments to proposed VA rules affecting asset tests for eligibility for Veterans benefits. They begin:
NAELA welcomes the effort to try to make the eligibility criteria for pension and other benefits administered by VA objective and transparent, but we believe that these proposed regulations, if implemented, would cause substantial harm to wartime Veterans, their spouses, and dependents and will not solve the serious issue of unscrupulous organizations taking advantage of potential beneficiaries by selling inappropriate annuities or trusts.
In addition, we express the serious concern that the proposed rule’s 3-year look-back period and transfer of assets penalty exceed statutory authority, opening up VA to future litigation and causing additional uncertainty for Veterans and their families.
For the full NAELA submission, see here.
Can an Attorney for a Nonprofit Disclose Info re Unlawful Diversion of Charitable Assets to Attorney General?
The Pennsylvania Supreme Court has agreed to consider an interesting legal ethics issue:
"When counsel for a nonprofit corporation believes that charitable assets are being unlawfully diverted, may counsel disclose this information to the Attorney General's office, as parens patriae for the public to whom the charity and its counsel owe a fiduciary duty?"
The case? Well, that is a bit of a mystery, as the parties' names have been redacted, and the factual basis for the petition has been deleted from the publically available record. The court permits amicus briefs by 3/23/15. If you wade past blank pages 2 through 11 of the Petition for Permission to Appeal, there are a few tantalizing clues about the context on pages 12 through 14.
Wednesday, March 18, 2015
The IRS has released a notice about a proposed regulation for ABLE accounts. Notice 2015-18 notes that some states are already moving forward with setting the framework for ABLE accounts and the notice acknowledges
The Treasury Department and the Internal Revenue Service (IRS) have been advised that several state legislatures currently are in the process of enacting enabling legislation in order to ensure that their citizens may create ABLE accounts during 2015. While the Treasury Department and the IRS currently are working on section 529A guidance, it is anticipated that ABLE programs may be in operation in some states before such guidance can be issued.
Not wanting to delay the states' progress, the notice allows the states to move forward
The Treasury Department and the IRS do not want the lack of guidance to discourage states from enacting their enabling legislation and creating their ABLE programs, which could delay the ability of the families of disabled individuals or others to begin to fund ABLE accounts for those disabled individuals. Therefore, the Treasury Department and the IRS are assuring states that enact legislation creating an ABLE program in accordance with section 529A, and those individuals establishing ABLE accounts in accordance with such legislation, that they will not fail to receive the benefits of section 529A merely because the legislation or the account documents do not fully comport with the guidance when it is issued.
The notice notes that a grace period will be provided to those states where ABLE accounts are being used to make any needed changes to comply with the IRS guidance. The notice goes on to explain how the IRS expects the ABLE guidance will differ from those for 529 plans.
In particular, the Treasury Department and the IRS currently anticipate that, consistent with section 529A(e)(3), the guidance will provide that the owner of an ABLE account is the designated beneficiary of the account. In addition, the Treasury Department and the IRS currently anticipate that the section 529A guidance will provide that, with regard to the ABLE account of a designated beneficiary who is not the person with signature authority over that account, the person with signature authority over the account of the designated beneficiary may neither have nor acquire any beneficial interest in the account and must administer that account for the benefit of the designated beneficiary of that account.
There is an interesting new YouTube video available, with charismatic, high-profile actors encouraging all of us to initiate "The Talk" about how we -- or our loved ones -- want to handle the possibility, indeed probability, that someday we will need long-term care. Rob Lowe, Maria Shriver, Maggie Gyllenhaal, Angela Bassett, Zachary Quinto and Jim Nantz admit the difficulties of talking about growing old, often using vivid tidbits from their own lives or families to emphasize the importance of breaking past the barriers of denial.
I like the video. It is simple, direct. But, at the same time, I find the initial video, while interesting, to be a lacking in specifics about what it means to "talk" about long-term-care planning. The 2-minute video is actually part of a series created by Genworth, the major seller of long-term care insurance, and if you hit the right (wrong?) buttons you are directed to Genworth websites that offer more details, especially about -- surprise, surprise -- buying long-term care insurance.
I suspect that many people will panic if they hear "pay some money now" in order to buy LTC insurance, as even a part of the "solution." See what you think:
Tuesday, March 17, 2015
The SHRM Foundation has released a report on the aging workforce, The Aging Workforce: Leveraging the Talents of Mature Employees. The foreword explains the value of these employees
Mature workers—generally defined as workers over age 50 or 55—have experience and skills honed during decades of employment. Retaining talented mature workers—and recruiting new ones—is simply good business for most organizations. This report helps you to understand and prepare for these demographic changes so your organization can leverage the mature workforce as a valuable competitive advantage.
The report includes a number of helpful charts, including one illustrating the reasons why some individuals work during retirement and what spurs people to retire. The section on recruiting and hiring older workers includes strategies and examples. The report concludes with, among other things, suggestions for businesses.
To effectively use the talent pool of older adults, HR professionals and business leaders must devise flexible strategies that address the specific needs, preferences and motivators of this population. Surveys suggest that mature workers want and need flexible work arrangements and health care benefits. They also want to feel valued and respected, and they want opportunities to continue learning and growing. Many need the income or the health care benefits associated with continued employment.
The SHRM Foundation " is the globally recognized catalyst for shaping human resource thought leadership and research... [and] advances global human capital knowledge and practice by providing thought leadership and educational support, and sponsoring, funding and driving the adoption of cutting-edge, actionable, evidence-based research."
Today is St. Patrick's Day, celebrated with greater fervor in many U.S. communities than it is in Ireland. Indeed, as I learned during my 2010 sabbatical in Northern Ireland, while Belfast is home to a variety of dramatic "historical" parades and holidays, events on St. Patrick's Day are low key and mostly for children.
In the March 16 issue of The New Yorker magazine, writer (and Yale-educated lawyer) Patrick Radden Keefe digs into the history of Northern Ireland, looking at the late stages of the Troubles. He examines possible roles played by Gerry Adams as an acknowledged leader of political party Sinn Fein versus his long-denied authority for certain violent actions of the IRA.
Keefe provides a comprehensive analysis of the events before and after the Good Friday Agreement of 1998, offering details that are devastating if true about how violence was often at its most problematic when perpetrated within the ranks of extreme republican and loyalist factions. Central to the history is the lingering question of who was responsible for the December 1972 abduction and execution of Jean McConville, the widowed mother of 10 children, suspected of informing against the IRA.
In the article, Gerry Adams comes across as determined to be both charismatic and enigmatic, as hero and anti-hero, as deeply devoted to a "United Ireland," while also oddly enamored with trivial self-promotion. I came away from the article thinking it was a good reminder of how dangerous it can be -- in any country -- to believe absolutely in any single leader.
The article also presents ethical questions associated with efforts to document the Troubles through oral histories recorded under the auspices of Boston College:
Monday, March 16, 2015
Justice in Aging (formerly the National Senior Citizens Law Center) has released an issue brief, How California’s Assisted Living System Falls Short In Addressing Resident’s Health Care Needs The Problem: Pretending that Medication Is Always “Self- Administered” According to the brief, the issue of safe medication administration has
been overlooked for decades. “Assistance with self-administration” is too often a code word for medication administration by a poorly-trained non-nurse. As explained above, other states already have addressed this issue. California has not, due to factors such as the no-health-care orientation of California’s assisted living law, and important concerns about changing state laws related to nurses’ scope of practice. Stakeholders (including nursing representatives) should work together to consider the options to improve medication administration in assisted living. DSS to its credit has taken initial steps to work with stakeholders to identify problems and solutions related to the current RCFE system.
The issue brief is the first in a series to be released by Justice in Aging. More information about Justice in Aging is available here.
Proposal to Increase Anti-Impoverishment Protections for Community Spouses Introduced in Connecticut
One of the declared purposes of modern federal law setting threshold standards for eligibility for Medicaid for long-term care is "protection of the community spouse" from impoverishment. At least that's a declared objective of amendments to federal law, passed by Congress in 1988. As one of Dickinson Law's Elder Protection Clinic clients once observed, "slower" impoverishment isn't the same as protection. States have choices to make within federal guidelines about minimum and maximum sums, about how much money community spouses can keep when their loved ones apply for Medicaid for long-term care.
In Connecticut, there is new legislation proposed, aimed at increasing the level of protection of community spouses in that state. As described in a recent article from the Hartford Courant:
Allowing the spouse of a person in a nursing home to keep enough money to live on independently is, in many ways, a moral issue. But in a tight budget year in Connecticut, it's a fiscal issue.
A proposal that would increase the minimum assets that a spouse living in the community can keep - from $23,844 to $50,000 – in order for his or her partner to be eligible for Medicaid nursing home care is being backed by elder advocates, who say the increase would help seniors, especially women, remain able to live independently. But the move is being opposed by the Department of Social Services on the grounds it will shift millions in costs to the state-funded Medicaid program.
The proposal would affect couples with combined assets of between $23,844 and $100,000....
It will be interesting to see whether this bill has traction, and whether other states are also willing to step up to the financial plate.