Thursday, April 24, 2014

Register Now-Webinar on Home & Community-Based Services Rules

The National Senior Citizens Law Center (NSCLC) announces an upcoming webinar on April 29, 2014 on Understanding and Impacting Implementation of New Home and Community-Based Services Rules. The announcement describes the webinar as

New federal Medicaid rules would, for the first time, set standards that seek to ensure Medicaid HCBS is provided in non-institutional settings, however, many details remain to be determined by individual states. Consumers, advocates and other stakeholders need to understand transition issues including the standards, what qualifies as HCBS, protections needed, consumer rights and service planning details in the new rules.

Stakeholder involvement and advocacy will be critical as state Medicaid programs transition through implementation of the new rules. For many states with waiver programs, the deadlines for submitting transition plans will be coming up this year. Throughout the transition process, both the states and the federal Centers for Medicare and Medicaid Services (CMS) must accept and consider recommendations from consumers and other stakeholders.

This webinar and a new NSCLC guide to the new rules will provide consumer advocates and other stakeholders with a clear explanation of the rules and share guidance for state engagement. Advocates, state policymakers, national advocates, and regulators are encouraged to attend and learn about what the rule means for residential settings, service planning, and the community-integration transition process.

Click here to register for this free webinar.

April 24, 2014 | Permalink | Comments (0) | TrackBack (0)

"What If It's Not Alzheimer's?"

My Penn State colleague from Hershey Medical Center, Dr. Claire Flaherty, has shared with me a another fascinating resource, "What If It's Not Alzheimer's?: A Caregiver's Guide to Dementia," by Gary Radin and Lisa Radin. 

The first chapter provides "The ABCs of Neurodegenerative Dementias," including frontotemporal dementia (FTD), Lewy Body Dementia, vascular dementia, as well as Alzheimer's Disease.  Key chapters including "finding the A Team" of specialists, and a guide to therapeutic interventions. 

The book reminds us that with some forms of dementia, particularly early onset dementias such as FTD, changes in personality or executive function may be the first signs, and easily misunderstood.  For example, the individual may manifest:

  • hypersexuality, including promiscuous sexual encounters with strangers; or
  • apathy or indifference to grooming and hygiene; or  
  • "hyperorality" with disinhibited consumption of large amounts of food; or
  • poor judgment with a lack of sense of consequences, sometimes coupled with poor impulse control

One chapter is unique, emphasizing the potential importance, after death, of an autopsy of the brain, and thus providing families with a way to contribute to biomedical research and the hope for better answers in the future.

April 24, 2014 in Books, Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 23, 2014

Dementia Diagnosis and the Law

On April 24, I have the good fortune to be working with a neuropsychologist from the neurology department at Penn State Hershey Medical Center in presenting a program on "Dementia Diagnosis and the Law," for a meeting of the Estate Planning Council in York, Pennsylvania.  Professor Claire Flaherty and I have "traded" presentations in the past, with her speaking at the law school and me speaking at the medical school, but this will be our first time presenting together.  We're excited. 

One of the important lessons that I've learned in working with Claire is the clear potential for cognitive impairment to exist without the "usual" symptoms associated with "Alzheimer's."  For example, much of Claire's work is with patients and families coping with early onset dementias.  Because Frontotemporal Dementia or FTD (sometimes also referred to as Frontotemporal Lobar Degeneration or FTLD) can begin to manifest in persons aged 45 to 64 years, the onset may be overlooked or misunderstood. Plus, as Claire reminds me, "FTD is primarily a disease of behavior and language dysfunction, while the hallmark of Alzheimer's Disease is loss of memory."

For legal professionals, including those asked to prepare deed transfers, wills or estate planning documents, the potential for subtle presentations of cognitive impairment can be especially significant.  Making sure the client is oriented as to "time, place and person" may not be enough to address the potential for loss of judgment, thus opening the door for unusual gifts, risky financial decisions or even of adamant rejection of once trusted family members. 

A good place to turn for information about early onset forms of dementia, including FTD, is the Association for Frontotemporal Degeneration or AFTD -- or join us for the York Estate Planning Council meeting this week.  

April 23, 2014 in Cognitive Impairment, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

ACL Webinar on Elder Abuse and Neglect of Persons with Dementia- What We Know and Where We Are Going

When:  Thursday, May 8, 2014 from 3:00 p.m. to 4:15 p.m. Eastern

This webinar is the next session of the ACL Alzheimer’s Disease Supportive Services Program Technical Assistance Webinar Series.  The purpose of the webinar series is to provide helpful, current, and applicable information for professionals who work with people with dementia and/or their caregivers.

This particular webinar will focus on elder abuse and neglect as it relates to people with dementia.  Participants will learn about: 

  • The incidence and prevalence of elder abuse, especially abuse of those with dementia
  • Tips for screening and assessing for elder abuse in the population of people with dementia
  • Programs that are addressing elder abuse among the population of people with dementia

Registration is required.  After registering, you will receive a confirmation email that includes the link you will need to enter the webinar on May 8th.

For instructions on how to connect to the webinar by telephone, contact Sari Shuman by email at [email protected] or by telephone at 312-335-5823.

April 23, 2014 in Cognitive Impairment, Dementia/Alzheimer’s, Webinars | Permalink | TrackBack (0)

The ACA & Medicaid for People with Disabilities

Kaiser Family Foundation has released an issue brief by MaryBeth Musumeci, The Affordable Care Act's Impact on Medicaid Eligibility, Enrollment, and Benefits for People with Disabilities.  According to the executive summary "Medicaid is an important source of health insurance coverage for people with disabilities.  This issue brief explains how Medicaid eligibility and benefits for people with disabilities are affected by the .. ACA... as of 2014.  Marketplace rules are discussed to the extent that they relate to Medicaid eligibility determinations for people with disabilities."  The final section of the report, titled "looking ahead" concludes that

The ACA’s Medicaid eligibility and enrollment changes can affect applicants and beneficiaries with disabilities.  The 2014 rules seek to allow people with disabilities to enroll in coverage as quickly as possible (either in Medicaid based solely on their low income or in a Marketplace QHP with APTC, where eligible), even while their Medicaid eligibility in a disability-related coverage group is being determined.   The 2014 rules also seek to ensure that people who qualify in a disability-related Medicaid coverage group or who are medically frail can access the most appropriate benefits package for their needs.  As the ACA’s 2014 eligibility and enrollment rules are implemented, it will be important to continue to assess how eligibility determinations and benefits for people with disabilities are affected by the new streamlined eligibility, enrollment and renewal procedures, coordination between state Medicaid agencies and the Marketplaces, the application screening questions, and the extent to which states align their new adult ABPs with state plan benefits.

The issue brief also contains some excellent charts and helpful eligibility comparisons. A pdf of the issue brief is available here.

April 23, 2014 | Permalink | Comments (0) | TrackBack (0)

NAPSA Seeking Proposals for Annual Conference

NAPSA has issued a call for proposals for workshops for their 25th Annual NAPSA Conference, to be held October 29-30, 2014 in Portland, Oregon.  The conference is sponsored by NAPSA; the Oregon Department of Human Services; the Oregon Department of Justice, Office of the Attorney General; the Oregon Council on Developmental Disabilities; the Oregon LTC Ombudsman; the Oregon State Unit on Aging; the Aging & Disability Resource Connection of Oregon; & the Arc of Oregon. The form for submitting the workshop proposal is available here.  The deadline to submit proposals is May 16, 2014.

April 23, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 22, 2014

Your Opinion Matters---to the National Legal Resource Center!

The National Legal Resource Center has opened their annual survey to obtain feedback for the next year. According to the email about the user needs survey, "[t]he NLRC provides a variety of resources, training, technical assistance, and consultations with experts.  To do [their] job more effectively [they]need to hear about the needs of professionals in Law and Aging."  The survey is available here and is open until May 30, 2014.

April 22, 2014 | Permalink | Comments (0) | TrackBack (0)

Nursing Home Inspections In LA

The Kaiser Health Network, in conjunction with the LA Times, recently ran a story by Anna Gorman, Waiting – And – Waiting On The Nursing Home Inspector. As the title implies, the story discusses the length of time taken to complete an investigation regarding the care of a nursing home resident who died under the care of a nursing home. Although the lawsuit was long over,    "[t]he  public health department ... still hasn’t finished its investigation [and a]s a result, when consumers check public records on nursing home quality, they won’t find any report of ... [the] case..."  According to the story, the length of time in this one case isn't unusual and

is just one example of hundreds in Los Angeles County and thousands statewide in which investigations by nursing home regulators have remained incomplete for months, sometimes years. There were 3,044 open cases in the county as of mid-March, 945 of which date back two years or more, according to an audit released last week by the Los Angeles County Auditor-Controller.  

Readers of this blog may recall an earlier post about the story on the backlog of inspections and the attempt to clear them by ordering some closed without a full inspection.  That story resulted in an audit by the LA County Supervisors, which was recently released. That audit showed "a lack of central oversight over inspections, noting that the department did not set or track timelines for investigations. The department also didn’t properly manage its funding, leaving about $4 million in its budget unspent over the last two fiscal years, the audit reported."

A story about the audit is available here. The story notes that

The report recommended that the department set time frames for completing investigations and require managers to explain delays. The auditor also recommended that managers evaluate the varying amounts of time it takes to complete investigations. Inspectors in one district, for example, take more than 16 hours, while inspectors in another take about six hours...The auditor found that delays occurred in a wide range of cases, including those classified as “immediate jeopardy,” in which a nursing home’s actions could cause serious injury or death to a resident. In one case, the auditor determined that the inspector initiated an investigation the same day but didn’t close the case until nearly a year later.

The department's statement released as a result of the audit is referenced in the article. Additional stories about the issue are available by searching the LA Times website.

 

April 22, 2014 | Permalink | Comments (0) | TrackBack (0)

Fraudulent Transfer Laws and Nursing Home Claims

In some instances where a resident of a nursing home fails to qualify for Medicaid, the question may involve a transfer of a nonexempt asset by the resident or by someone (usually a family member) acting in place of the resident.  If the nursing home is not then paid privately, a debt is incurred. Depending on the specific reasons for a ruling of ineligibility, the nursing home, as an unpaid creditor, may be motivated to challenge the transfer as "fraudulent."  This in turn may trigger application of the Uniform Fraudulent Transfer Act (UFTA), as adopted in the specific state. 

Along that line, there is a new article, "Reconsidering the Uniformity of Uniform Fraudulent Transfer Act," by Steven Boyajian, Esq., published this month in the American Bankruptcy Institute Journal.  The article outlines proposed amendments to the UFTA currently under consideration:

"The UFTA has been adopted in 43 states, Washington D.C., and the U.S. Virgin Islands, and has not been specifically amended in the 30 years since it was drafted. Despite the UFTA's admonition that it 'shall be applied and construed to ... make uniform the law with respect to subject of [the UFTA] among states enacting it,' portions of the UFTA have been subject to conflicting interpretations by courts nationwide....

 

Amendments being considered by the Drafting Committee proposed to resolve the conflicting judicial interpretations of the following issues:  (1) the effect of § 2's presumption of insolvency if a debtor was generally not paying its debts as they become due; (2) the standard of pleading and proof applicable to a claim that a transfer was made or obligation incurred 'with actual intent to hinder, delay, or defraud any creditor'; and (3) the allocation of burdens with respect to the elements of a claim to avoid a constructively fraudulent transfer or obligation."

In outlining the proposals, the author emphasizes the continuing nature of the discussions about UFTA proposals.  One of the cases cited as part of the discussion is a nursing home collection case, Prairie Lakes Health Care System v. Wookey, 583 N.W. 2d 405 (S.D. 1998). 

Pennsylvania also has a case involving intepretation of a UFTA claim in the context of a nursing home collection matter.  In Presbyterian Medical Center v. Budd, 832 A.3d 1066 (Pa. Super. Ct. 2003), a nursing home plaintiff turned to Pennsylvania's filial support law as an alternative to a claim under UFTA, thereby permitting potential recovery against an adult child, without proof of fraud required. 

April 22, 2014 in Housing, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, April 21, 2014

Potpourri: Recent "Elder Law" Articles from SSRN

Here's a sampling of recently published articles from the Social Science Research Network (SSRN) falling loosely under the heading of "Elder Law" as well as other classifications:

From our Law Prof Blogging colleague Gerry Beyer, "Who Said Learning Trusts & Estates Can't Be Fun?"  The abstract alone is inspiring for those of us who teach in this field:

"From even before their first day of law school, Texas Tech University School of Law students have the opportunity to appreciate the importance of the estate planning area and to understand that it can be both an enjoyable and rewarding area of law in which to practice. During orientation, which takes place the week before classes start, new students participate in full-day programs centered on a particular area of practice either of their own choosing or assigned by the administration. For the 2013 entering class, I was in charge of two full-day Estate Planning Tracks with a total of aproximately thirty-five entering students.



As their legal education continues, students have additional exposure, some mandatory and some optional, to estate planning topics. In my first year required Property course, I spend several days reviewing the basic principles of intestate succession and wills. Texas Tech then requires all students to complete a four-credit introductory course entitled Wills and Trusts as a condition of graduation during their second or third year. Students desiring a more sophisticated treatment may take courses such as Estate Planning, Texas Estate Administration, Guardianship, Estate and Gift Tax, Elder Law, and Marital Property. Students may also compete for a coveted position as an editor for the Estate Planning and Community Property Law Journal that Texas Tech publishes.



This Article reveals my basic teaching philosophy and the general pedagogical techniques I employ to make Trusts and Estates topics both fun and relevant. I will then share with you the specific tools I use when teaching the introductory course as well as the advanced courses such as Estate Planning and Texas Estate Administration. It is my hope that you may be able to gain insight from my approach to enhance your own teaching and the experience you provide to your students."

From Northern Illinois Law Librarian Sharon Nelson, a thoughtful bibliography of articles drawing lines between mistreatment of animals and the potential for family member abuse or neglect.  I have to say that I never thought about this connection before, but it does ring true for a possibly related phenomenon I observed when we were interviewing caregivers for an aging family member.  If candidates were nervous around our completely benign pooches, they rarely coped well with the not-so-benign family member.  Nelson sumarizes her article, titled "The Connection Between Animal Abuse and Family Violence:"

"This Selected Annotated Bibliography assembles legal and social literature that examines the link between domestic violence and animal abuse. Drawing from an ever-growing body of written works dedicated to the issue, the Bibliography presents the works that are most informative and useful to the legal community. These include case studies, current and proposed legislation, and social services guides that address the occurrence of and response to the animal cruelty-family violence correlation. In doing so, the Bibliography creates a resource that will prove helpful to a variety of legal practitioners, law makers, and professionals within the criminal justice system, and will serve as a tool to promote further understanding of the patterns of abuse that often concurrently victimize both humans and animals."

And from Canadian J.D. candidate Mathew Ponsford, an article about implications of advance care decision-making issues and legislation in Ottowa, "A Discussion of Conflict Resolution Processes Used in End-of-Life Care Disputes Between Families and Healthcare Providers in Canada."  The abstract begins:

"Conflict at the end-of-life, particularly between families and healthcare providers, involves many complex factors: differing opinions surrounding a patient’s prognosis, cultural differences, moral values and religious beliefs, associated costs, internal family dynamics, and of course, legal ramifications. Bill-52 (2013): An Act Respecting End-of-Life Care, introduced in Québec's National Assembly, will have far-reaching implications for healthcare decision-making for families, healthcare providers, religious groups, and others. Here, Bill-52 is used as the backdrop to examining the often neglected stories of disputes arising between families and healthcare providers, and the communication strategies, negotiation and mediation processes which result amidst an often stressful, costly, and time-consuming ordeal. Numerous conflict resolution processes are discussed, but the Consent and Capacity Board, regulated through Ontario's Health Care Consent Act (HCCA), is the primary focus. The importance of empathy and cultural understanding is also analyzed, as well as the challenges of cross-cultural conflict, including sensitivities toward Canada's First Nations peoples."

April 21, 2014 in Advance Directives/End-of-Life, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts | Permalink | Comments (0) | TrackBack (0)

Not Only Is There an App for Advance Directives--there are Puppet Videos!

I blogged last week about the updated app from the ABA Commission on Law & Aging on My Health Care Wishes.  Charlie Sabatino, the Executive Director of the Commission told me that the app developer, Diane Murdock, and her son created a series of short videos using  puppets on the importance of creating advance directives.  Several of the videos mention the app.  Click here to watch the series of 12 short videos (total running time slightly over 4 minutes). In addition, Ms. Murdock has written a book, The New Art of Dying with more information and other resources available on her website by the same name.

April 21, 2014 | Permalink | Comments (0) | TrackBack (0)

Sunday, April 20, 2014

Justice John Paul Stevens: Not So Retiring in Retirement, with A New Book

Former Supreme Court John Paul Stevens celebrated his 94th birthday on Sunday, April 20, in a rather unique way, appearing on ABC's This Week with an interview by George Stephanopoulos. And it was not exactly a soft ball interview, inspired in part by the Justice's bold new book Six Amendments:  How and Why We Should Change the Constitution.   To whet your appetite, here is a bit from the prologue:

"In the following pages I propose six amendments to the Constitution; the first four would nullify judge-made rules, the fifth would expedite the demise of the death penalty, and the sixth would confine the coverage of the Second Amendment to the area intended by its authors. The importance of reexamining some of these rules is already the subject of widespread public debate, but others have not received either the attention or the criticism that is warranted."

Here's a link to excerpts from the interview on ABC, and here's a link to additional excerpts offered by ABC from the book.   Happy Birthday, Mr. Justice!

April 20, 2014 in Books | Permalink | Comments (0) | TrackBack (0)

Is There an "Age War" Looming?

The title of a piece in the April 2014 issue of AARP Bulletin, "Dispatches from the Battle of the Ages," suggests that we're already in a battle between older and younger people, with the article detailing media reports about battlelines on jobs, funding for federal benefit programs, health care costs, and caregiving obligations. 

"Alarmists use ... statistics to paint a portrait of generational warfare.  But are they mounting that picture in the wrong frame?  To paraphrase a slogan from the 60's peace movement, 'Suppose they gave a generational war and nobody came?'"

The article suggests an interesting resource, Paul Taylor's book (released in March), The Next America. 

"Taylor [executive vice president of special projects at the Pew Research Center in Washington D.C.] and his Pew Colleagues conducted opinion surveys and pored over decades of demographic data.  Yes, there is a palpable anxiety about the lingering recession and long-term problems associated with entitlements, plus the runaway national debt.  Yet Taylor notes this anger transcends age barriers."

At times I do hear a strong resentment among students, both at the college level and in law school, and yet at the same time, I am also impressed by how many students choose to take courses and look for jobs in fields that will serve older adults.  Is there a "war" -- or is it more of a struggle to find firm footing on ground that is ever shifting? 

April 20, 2014 in Books, Current Affairs, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Friday, April 18, 2014

There IS an App for That Advance Directive!

Charlie Sabatino, Executive Director of the ABA Commission on Law & Aging sent me an email to let me know about the release of an update to the app, My Health Care Wishes.  According to the flyer for the app

My Health Care Wishes is a smartphone app that gives you and your family members the ability to store your own and each other’s health care advance directives, key health information, and health care contacts on your Apple or Android smartphones, and to send advance directive documents and other key information directly to health care providers by email or Bluetooth.

There are two versions: the lite version is free (coming soon) and the pro version has a small cost.  The website explains and compares the features of the two versions.

According to the Q&A about the app, "[t]he idea behind the app is very simple – to ensure that vital information that affects critical health-care decisions is controlled by the individual and by loved ones accessible at the right time and the right place when most needed." 

Cool!

April 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Legal Advocates Take Swift Action to Preserve Access to Social Security Benefits in Oregon

Three legal advocacy organizations, Disability Rights Oregon, the Oregon Law Center and the National Senior Citizens Law Center, worked as a team to initiate a class action suit in Oregon on behalf of 700 individuals with disabilities to protect their rights to continue to receive Social Security benefits needed for basic living requirements.  The individuals' access to monthly Social Security benefits was jeopardized when a non-profit organization, "Safety Net of Oregon," serving as their representative payee was disqualified following an investigation for alleged mismanagement of clients' funds.  The advocates explained:

"This suit is asking that SSA follow its own regulations to make sure that benefits continue to flow to recipients in a safe and responsible manner. In early March, SSA sent a notice to approximately 1,000 SSA recipients who have Safety Net as a representative payee, advising them that their benefits would be suspended beginning April 1, 2014, and that the amount they would receive would be $0.00.  While some recipients have been able to find a new payee, or to become their own payee, many clients never received the notice and have no idea that their benefits are about to be suspended.  Almost 700 individuals still lack new payees as of March 21, 2014.  Many are homeless, have severe and persistent mental illness, developmental disabilities, and/or alcohol or drug addictions.  Many of the clients are profoundly social isolated and alienated, and totally unable to navigate the system on their own." 

In response to the suit, the federal court issued a restraining order on March 26 requiring SSA to assign new payees to former Safety Net Clients, rather than delay, require new applications or other in-person requests by the disabled SSI and SSD recipients.  More background here.   

April 18, 2014 in Federal Cases, Federal Statutes/Regulations, Social Security | Permalink | Comments (0) | TrackBack (0)

Older Adult Protective Service Options: When Even Court Orders Are Not Enough

My various search routines regularly alert me to cases involving older adults. I was reading an unpublished Washington Court of Appeals decision dated February 2014 in State v. Knopp, which at first seemed fairly straight-forward, if sad.  A daughter was appealling her conviction for first degree theft from her disabled mother, theft that began through use of a Power of Attorney.  The daughter contended the prosecutor misstated the law during closing argument and that her trial counsel was ineffective. She argued -- unsuccessfully -- that she was entitled to make a "claim of title" defense based on the POA.  The conviction was affirmed.

On closer reading, what seemed more remarkable than the conviction was the history of opportunities and unsuccessful efforts to stop the daughter's theft.  The broadly worded POA was executed by the mother in 2006 when everyone was healthy.  The problems did not begin until the mother "suffered an injury in December 2008" and was placed in a rehabilitation facility.  The facility recommended to the daughter that she apply for Medicaid for her mother, but the daughter later admitted she did not complete the application because she realized "most of [her mother's] income would be required to pay for her medical needs." Instead she took her mother out of the rehab facility "against medical advice" and moved her to an assisted living facility. 

It seems clear from reading the opinion that from as early as April 2009, there were concerns about the daughter's role.  For reasons not fully explained in the criminal case opinion, the mother was appointed a "guardian ad litem;" an "evaluator" reported the mother was suffering from dementia and lacked capacity to handle her own financial affairs; and in June 2009, the GAL obtained a "court order prohibiting [the daughter] from accessing [her mother's] accounts. 

Nonetheless, the daughter apparently continued to help herself to her mother's accounts, withdrawing "several thousand dollars" between June 19 and August 3, 2009.  Apparently "the bank failed to process" the court order correctly, thus allowing the continued withdrawals.  And even as late as October 2009, the daughter was successful in redirecting her mother's pension and social security checks to her own accounts by direct deposit, thus bypassing the court order.

The case is an example of the challenges of preventing financial abuse of elderly or disabled persons by a persistent individual; however, it also points to the importance of functional systems of effective checks and balances once it is clear that abuse is occuring.  Not easy -- not fun -- and, again, sad. 

April 18, 2014 in Cognitive Impairment, Crimes, Elder Abuse/Guardianship/Conservatorship, State Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2014

FINRA Arbitration Awards Damages, But Also Attorneys' Fees Under California Elder Abuse Laws

An arbitral award in March 2014 by Financial Industry Regulatory Authority (FINRA) ordered Signator Investors, Inc., a firm aligned with the John Hancock Financial Network, to pay an older couple and their elderly mother's estate $1.2 million for losses arising from failed retirement investments inappropriately marketed to them by a Signator broker. The award to the claimants included "compensatory" damages plus interest, and ordered rescission of all the claimant's investments in Colonial Tidewater Realty Partners.  The award also granted Signator's cross-claim against its former broker, James Robert Glover, for breach of contract, fraud and negligence as potential indemnification on the damage award.

As is true with most arbitration awards, the ruling on Docket No. 13-00579 (available via search at the FINRA website) is "bare bones," providing little in the way of explanation about which legal theories support the outcome. A detailed explanation is unnecessary for FINRA arbitration rulings, which cannot be appealed. 

The claimants, a husband and wife (both 70+) and the husband's mother (who died in 2012 at the age of 103), reportedly invested their entire retirement savings through Glover, who put them into securities not held or offered by Glover's brokerage company.  This practice is sometimes described as "selling away." Signator's defense that Glover's actions were therefore outside the scope of his authority with their company and not subject to their control or responsibility to supervise was implicitly rejected by the FINRA arbitrators.  News reports indicate some 40 other pending complaints connected to Glover's actions. Glover was sanctioned personally by FINRA in March 2013.

FINRA, created in 2007,  is the successor to NASD, the National Association of Securities Dealers, the former enforcement operation for member brokerage firms and exchange markets regulated by the Securities and Exchange Commission.  A single arbitral award of $1+ million through FINRA is interesting by itself.  For example, for the entire year of 2013, FINRA ordered a total of $9.5 million in restitution to harmed investors. 

But what caught my attention was the additional award of $453,970 in attorneys' fees for the claimants against Signator, "pursuant to California elder abuse statutes." The amount of the fees appears to be roughly 40% of the damage award.  Most securities claims are handled by attorneys on a contingency fee arrangement and a fee of 40%  of the award is not unusual in this challenging field.  Thus, even a successful claimant before FINRA may not be made whole, absent a contractual or statutory basis to claim attorneys' fees.  So the award of compensatory damages and interest, plus attorneys fees' is significant. 

Unlike many states, California has a comprehensive provision for attorneys' fees connected to civil actions for abuse of elderly or dependent adults, at Cal. Welfare & Institutions Code Sections 15657-15657.8, including Section 15657.5 providing for attorneys' fees where it is proven by a preponderance of the evidence that a defendant is liable for "financial abuse."   

April 17, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Retirement | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

Social Security Administrators Announce Cessation of "Old Debt" Collection Intercepts

The Social Security Administration announced on Monday that it is halting its practice of "Treasury Offsets" to recover debts reported to be 10 years or older.  This decision comes just three days after the Washington Post's front page account of intercepts that targeted IRS income tax refunds going to children of alleged debtors. As reported in today's Washington Post: 

“"I have directed an immediate halt to further referrals under the Treasury Offset Program to recover debts owed to the agency that are 10 years old and older pending a thorough review of our responsibility and discretion under the current law,' the acting Social Security commissioner, Carolyn Colvin, said in a statement.

 

Colvin said anyone who has received Social Security or Supplemental Security Income benefits and 'believes they have been incorrectly assessed with an overpayment' should contact the agency and 'seek options to resolve the overpayment.'”

The Washington Post reported that after its first article, "many hundreds of taxpayers whose refunds had been intercepted came forward and complained to members of Congress that they had been given no notice of the debts and that the government had not explained why they were being held responsible for debts that their deceased parents may have incurred." 

Hmm.  It seems that it is the intercept notice procedures that may be the focus of reexamination by the SSA, rather than giving up on the authority granted by Congress in 2008 to recover "stale" debts.  Plus, it is unclear whether SSA will  explain its theory for seeking recoveries against children of debtors.  

April 15, 2014 in Federal Cases, Federal Statutes/Regulations, Medicaid, Social Security | Permalink | Comments (0) | TrackBack (0)

AoA publishes annual update to Profile of Older Americans

The AoA has just released "Profile of Older Americans: 2013".  This is the electronic version of the popular brochure with the latest key statistics on older Americans in key subject areas. It includes both narrative and statistical charts. The 2012 edition is only available online.

Access the data here.

April 15, 2014 | Permalink | TrackBack (0)

Congrats to Kim Dayton and co-authors-new book

Congrats to dear friend, co-blogger and webmom Kim Dayton who spearheaded a recently published book, Comparative Perspectives on Adult Guardianship. Published by Carolina Academic Press, the book is available for purchase for $53 (currently at 10% discount is available for internet orders). The website describes the book as

[A] compilation of chapter-essays from some of the world’s leading authorities on adult Coverguardianship law. The essays cover a wide range of topics from both theoretical and practical perspectives. Part I of the book introduces some of the basic concepts that transcend the national guardianship system, approaching these concepts from a comparative perspective. Part II’s essays provide comprehensive information on guardianship systems around the world. Essays in Part III outline an ambitious agenda for reforming adult guardianship regimes. The book is a must read for those concerned with the role of national and international law in defining and expanding the rights of older persons and persons with disabilities who are at risk of being placed under guardianship due to cognitive or other disabilities.

The book has 23 chapters that cover a range of topics and a selected bibliography that includes selected governmental reports, conventions, articles and books. Authors include a number from the United States as well as Japan, China, Canada, Australia, Korea, The Netherlands, The U.K, Israel, England,  Sweden, and Turkey.

The introduction to the book, authored by Jochen Exler-Konig (Germany), chair of the International Guardianship Network, describes the importance of this book:

Modern societies around the globe are confronting an increasing incidence of disability associated with an aging population, and growing acknowledgment of mental health issues, developmental disabilities, and the consequences of brain injuries. Adult guardianship is no longer merely a local concern. It has been suggested that more than 1% of the adult population 18 years and older in industrialized nations is under formal legal guardianship...The number of persons in need of guardianship, and guardianship caseloads, can be expected to grow exponentially in the next few decades. This reality raises a number of questions: How can we address the needs of persons who need protection, while preserving their autonomy and personal dignity? How can adult guardianship systems accommodate these competing concerns?

Complimentary copies are available for professors by requesting an exam copy. Kim Dayton ROCKS!!!

 

 


April 15, 2014 in Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0) | TrackBack (0)