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)

Monday, April 14, 2014

New Report Finds That Spouses Who Are Caregivers Are More Likely Than Other Caregivers to Perform Demanding Medical/Nursing Tasks

The United Hospital Fund and AARP Public Policy Institute has issued a report today showing that spouses who are caregivers not only perform many of the tasks that health care professionals do—a range of medical/nursing tasks including medication management, wound care, using meters and monitors, and more—but they are significantly more likely to do so than other family caregivers, who are mostly adult children. Nearly two-thirds of spouses who are family caregivers performed such tasks (65 percent), compared to 42 percent of nonspousal caregivers.

Despite these demanding responsibilities, spouses were less likely than nonspousal caregivers to receive in-home support from health care professionals; 84 percent of spousal care recipients received no professional health care on site, compared to 65 percent of nonspousal care recipients. Compounding the challenge, spouses were also less likely to receive help from family or friends or home care aides: 58 percent of the spouses reported no additional help from others, compared to 20 percent of nonspouses. This lack of support elicited special concern from the authors: “‘Taking care of one another’ in an era of complicated medication regimens, wound care, and tasks associated with complex chronic care is a challenge that no one should have to face alone,” they state in the report.
In addition, spouses who are caregivers were on average a decade older than nonspousal caregivers (median age 64 versus 54). They were also poorer, less likely to be employed, and less educated than nonspousal caregivers.
Family Caregivers Providing Complex Chronic Care to Their Spouses, a publication in the “Insight on the Issues” series, summarizes the new findings drawn from additional analysis of data based on a December 2011 national survey of 1,677 family caregivers, 20 percent of whom were spouses or partners. Earlier findings were published in the groundbreaking PPI/UHF report Home Alone: Family Caregivers Providing Complex Chronic Care and in an earlier publication in the “Insight on the Issues” series, Employed Family Caregivers Providing Complex Chronic Care.

April 14, 2014 in Dementia/Alzheimer’s, Health Care/Long Term Care, Statistics | Permalink | TrackBack (0)

Stanford Longevity Center's Design Challenge Winners Announced

Stanford's Center for Longevity announced the finalists and ultimate winners last week for their inaugural design challenge, with the top honors (and $10,000) going to  Sha Yao from the Academy of Art University in San Francisco  for her project “EatWell.” which involved the design of tableware specifically for people with Alzheimer's.  As explained in Stanford News:  

"For example, blue was chosen as the color of the insides of bowls because dementia sufferers can become confused when food and bowl have similar colors, according to Smith. As spills are common when bowls are tipped to get the final bits out, Yao designed a slanted bottom that eliminates the need to tip. The cups have low centers of gravity and are difficult to knock over."

Descriptions of all the finalists' projects were reported by National Public Radio here, along with a photo of the top winner's project. 

April 14, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, April 13, 2014

Congrats to Howard Eglit-New Book

Congrats to my dear friend, Howard Eglit of Chicago-Kent on the publication of his new book, Age, Old Age, Language, Law: A Dysfunctional---Often Harmful---Mix and How to Fix It. Howard sent me an email, describing his book

In late March, 2014, my  latest book came out.  It is titled "AGE, OLD AGE, LANGUAGE, LAW:   A Dysfunctional -- Often Harmful -- Mix and How it Fix It."  It is self-published and can be purchased through Lulu.com.  Part of the book deals with employment discrimination, but the majority does not.  Rather, the main focus is on the use of language as a mechanism both for creating and for nurturing age bias generally, as well as in the employment arena specifically.   To this end, I spend time addressing the really very large number of negative epithets -- "geezer," "crone," "coot," "gaffer," "troll," "cotton-top," etc. -- and pejorative adjectives -- "over the hill," "used-up," "demented," etc. -- applied to older people.   This state of linguistic affairs contrasts with the virtual non-existence of negative terms applied to the middle-aged and the young.

I also address -- among other concerns -- the downbeat depictions and general absence of older people -- at least vibrant, involved older people -- in television programming, movies, so-called celebrity magazines, etc.  I point out the 'gosh-isn't s/he amazing news stories that by indirection reinforce the notion that the rare older athlete or adventurer is just that -- rare -- in contrast to the large supposedly decrepit oldster population.

Obviously, there are very significant First amendment and policy concerns involved in any proposal to curtail or censor objectionable (to some) language, and I spend a considerable number of pages talking about various law-based approaches that might or might not pass First Amendment muster:  libel, slander, intentional infliction of emotional distress, invasion of privacy, fighting words, captive audience analysis, hate speech, regulation of speech in the workplace, FCC regulation of television programming, etc.    Concluding that at best these approaches offer little by way of curtailing ageist speech, I turn to other, non-law-based approaches:  community organizing, self-regulation by the media, education and enhanced awareness about the true qualities of older men and women, etc.

I am half-way through the book and it's quite interesting. The book runs 324 pages, exclusive of notes and authorities.  The final paragraph bears repeating here:

I am not foolish enough nor am I optimistic enough to believe that the solution for the vice of old-ageism is simply language change. Old-ageism is incredibly pervasive throughout American culture, practice, politics, economics, and so on. But cleaning up the verbiage is one piece of what is and will be an exhaustive, often discouraging , but necessary long-term campaign. And the bottom line is this: trying to do something is better than just doing nothing.

The book is available here for purchase for $24.00. Congrats Howard!

 

April 13, 2014 | Permalink | Comments (0) | TrackBack (0)

Critical Issues to Consider in Planning Via Powers of Attorney

ElderLawGuy Jeff Marshall succinctly discusses four critical issues that individuals and families should consider when using Powers of Attorney in estate and incapacity planning. Here's the link to Jeff's "Powers of Attorney: Things You Need to Know."  

April 13, 2014 in Advance Directives/End-of-Life, Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Property Management | Permalink | Comments (1) | TrackBack (0)

Saturday, April 12, 2014

Pennsylvania's Current Debate: How Best to Respond to Elder Exploitation?

I think it is safe to say that in more than twenty years of working in law and aging, the last twelve months have been the "busiest" I can remember on the topic of financial abuse of older persons. 

As examples, in just the last six months, in addition to international projects on safeguarding policies, I have been invited to assist a team of attorneys on a series of well-attended CLE presentations on "powers of attorney," testify at the invitation of the Pennsylvania House of Representatives on the topic of financial abuse and exploitation, and serve on an Abuse and Neglect Committee for the Pennsylvania Supreme Court's Elder Law Task Force.  

Certainly the concerns about financial abuse of older adults are not new. However, a steady drumbeat of local news reports about financial abuse, plus the demographics of aging populations, has drawn increased attention of state legislators, courts, and practitioners.  In many jurisdictions, the focus is no longer just on "whether" but "how" to address the problem of exploitation of older people. In addition, the high profile cases involving philanthropist Brooke Astor and actor Mickey Rooney, reportedly at the hands of family members and others, have made it clear that no level of society is immune from the potential for abuse.   

Along this line, in Pennsylvania a series of events have helped to shape the current debate on abuse of older persons or other "vulnerable" adults, and thus has generated proposed legislation.  Perhaps Pennsylvania's history will resonate with those addressing similar concerns in other jurisdictions:

  • In 2010, the Pennsylvania Supreme Court addressed the question of whether a state agency that was responsible for administering a specific retirement fund was entitled to good faith immunity under state law when taking action in reliance on a purported Power of Attorney (POA) presented by the spouse as agent of his employee/wife.  In Vine v. Commonwealth of Pennsylvania, a majority of the Court concluded that where the employee's "X" on the POA was improperly obtained by her husband while she was incapacitated after a life threatening car accident, the POA was invalid  -- in other words "void" -- and therefore the "immunity" conferred by the state's POA law was not available to the agency.   (There were  strong dissents to the majority's ruling,).   The decision had implications for POAs generally, and certainly POAs presented by family members or others to banks on behalf of older people who needed or desired agents to handle financial matters.  In Pennsylvania, financial institutions began questioning POAs, seeking reassurances that the document in question was valid.  The commercial viability of POAs was thus at risk. This became known as the "Vine" problem in Pennsylvania.
  • Attorneys representing various stakeholders, including families, financial institutions and district attorneys, began to weigh-in with proposed "fixes" for the Vine problem, while sometimes also raising other concerns related to financial abuse of older or vulnerable adults.
  • The Uniform Law Commission, after years of hard work by academics, judges, attorneys and other interested parties nationwide, issued a proposed "Uniform Power of Attorney Act" (UPOAA) in 2006. Central to the proposed legislation were safeguards intended to better protect the incapacitated principal, as well as address concerns by agents and third parties. By 2014, fourteen states have enacted revisions of POA laws, drawing upon the Uniform Act for guidance. As with other uniform law movements, the Commission's work on UPOAA  recognized the need for accepted standards for instruments used in national commerce, instruments that frequently cross state borders. 
  • In Pennsylvania, the UPOAA has influenced two bills, House Bill 1429 (introduced by Representative Keller) and Senate Bill 620 (introduced by Senator Greenleaf).  Each bill passed in their respective houses.  (This single sentence truncates several years of  history about the negotiations, all set against the background of need for a "Vine" fix.)  Both bills address the concerns of banks and other third-parties who want reassurances that they may rely in good faith on POAs that appear on their face to be valid.
  • Following legislative hearings that included testimony from individuals representing banks, legal service agencies, and protective service agencies,  other legislative proposals emerged.  These pending bills include: SB 621 (Senator Greenleaf) with significant, additional updates to POA laws, as well as other parts of the probate code; HB 2014 (Representative Hennessey) proposing significant revisions of the state's Older Adult Protective Services Act; and HB 2057 (Representative White) amending the Older Adult Protective Services Act to create a private right of action, including attorneys fees and punitive damages, for victims of exploitation against the abusers. 

In Pennsylvania, which has a year-round legislature, there tend to be two windows for major action on pending legislation, including the "budget" cycle that ends on July 1 and again during autumn months.  In following the various bills, it seems to me likely that HB 1429 will be the vehicle for the "Vine" fix.  There is also the possibility that Senator Greenleaf's second bill, SB 621, and other tweaks will be passed, either as standalone legislation or as amendments to HB 1429 or other bills.  Thus, for interested persons and stakeholders, the weeks leading up to July 1 will mean keeping a watchful eye (and alert ear) for last minute changes.

All of the stakeholders are well-intentioned and concerned about the best interests of older adults who because of frailty often have no choice but to rely on agents or others acting in a fiduciary capacity. 

At the same time, as I've watched the events of the last four years in Pennsylvania come to a peak the last six months, I've observed a complicating factor.  Those who are most likely to see violations of POAs, including district attorneys, protective service agencies and the courts, probably do not see the larger volume of commercial transactions that happen routinely and appropriately without the added cost of enhanced accounting or oversight.  By comparison, professional advisors who routinely facilitate families in estate planning, including transactional attorneys, tend not to see the abusers. Finally, financial institutions, who probably feel caught in the middle, and who are often on the front lines of witnessing potential abuse, seek the ability to report suspected abuse without incurring liability, while also avoiding the costs of becoming "mandatory" reporters (a topic addressed in some proposed amendments of the Older Adult Protective Services Act).  Thus it is challenging to balance the viewpoints of different groups in crafting effective (including cost effective) solutions.

There is also the potential that by focusing primarily on POAs, which in Pennsylvania is driven by a very real need for a "Vine" fix, we may be missing or minimizing other significant instances of abuse via joint accounts, questionably "signed" checks, or misuse of bank cards and credit cards.  The amounts of money per transaction may be smaller in those instances, but depending on the victim's resources, the impact may be even more significant.

Ironically, as the population of older adults increases, state funding, including Pennsylvania funding, is under constant threat, thus weakening Protective Services, Legal Services and the courts, all entities that can help victims, and that have expertise in investigation and intervention where abuse is indicated.

April 12, 2014 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)

Friday, April 11, 2014

Taking "Filial" Obligations to a Whole New (and Very Disturbing) Level: The Federal Government

George Washington Law Professor Naomi Cahn drew a direct line between our post earlier today about law review articles exploring various theories about "filial" or family obligations for support, and a chilling report from the front page of today's Washington Post.  From the article by Marc Fisher, titled  "Social Security, Treasury Target Taxpayers for Their Parents' Decades Old Debts:"

"Social Security claims it overpaid someone in the Grice family — it’s not sure who — in 1977. After 37 years of silence, four years after Sadie Grice died, the government is coming after her daughter. Why the feds chose to take Mary’s money, rather than her surviving siblings’, is a mystery.

 

Across the nation, hundreds of thousands of taxpayers who are expecting refunds this month are instead getting letters like the one Grice got, informing them that because of a debt they never knew about — often a debt incurred by their parents — the government has confiscated their check.

 

The Treasury Department has intercepted $1.9 billion in tax refunds already this year — $75 million of that on debts delinquent for more than 10 years, said Jeffrey Schramek, assistant commissioner of the department’s debt management service. The aggressive effort to collect old debts started three years ago — the result of a single sentence tucked into the farm bill lifting the 10-year statute of limitations on old debts to Uncle Sam."

Well, that certainly trumps any nursing home's theory of family liability.  Our thanks to Naomi for the timely heads up.  The due process implications of the tax refund intercepts sound like a Constitutional Law exam problem in the making ... or perhaps I'm just too close to exam-writing time myself. 

April 11, 2014 in Social Security | Permalink | Comments (0) | TrackBack (0)

Catch-Up Friday: Furor Over Filial Support, Mutual Responsibility & Related Laws

It is Friday and time for a catch-up on recent law review articles.  I posted last month on Memphis Professor Donna Harkness' article on filial support laws, but she is not the only one with recent publications analyzing the seemingly renewed interest in enforcement of such laws around the country and the world.  Here are highlights from recent comments and articles (minus those pesky footnotes):

"The Parent Trap: Health Care & Retirement Corporation of America v. Pittas, How it Reinforced Filial Responsibility Laws and Whether Filial Responsibility Laws Can Really Make you Pay," Comment by Texas-Tech Law Student Mari Park for the Estate Planning & Community Property Law Journal (Summer 2013):

"Texas should join the other twenty-eight states that already have a filial responsibility statute. Placing the duty of support on able family members first is a centuries-old obligation that has managed to survive into the present day despite opposition. While filial responsibility may seem harsh, it is simply making families care for each other. With the number of indigent elderly quickly rising, long-term care costs are likely affecting many families. Instead of ignoring the issue and hoping the government will shoulder this burden, maybe it is time for families to step up and take responsibility." 

"Filial Responsibility: Breaking the Backbone of Today's Modern Long Term Care System," Article by Elder Law Specialist Twyla Sketchley and Florida State Law Student Carter McMillan for the St. Thomas Law Review (Fall 2013): 

"The costs of long term care are staggering  and a solution must be found for this crisis. However, mandatory filial responsibility is not the answer. Enforcement of filial responsibility in the modern long term care system is unsustainable and ineffective. Filial responsibility has been recognized since the Great Depression as ineffective in providing for the needs of elders. Scholars have recognized that families provide care, not out of legal obligation, but personal moral obligation, and do so at great sacrifice. Enforcement of filial responsibility in today's long term care system burdens those who are the least able to shoulder the additional burden. Based on the value and the consistency of the care provided by informal caregivers, informal caregiving is the one piece of the long term care system that is working. Therefore, the solutions to the long term care financing system must encourage and support the informal caregiving system[,] not add additional, unsustainable burdens."

"Intestate Succession for Indigent Parents: A Modest Proposal for Reform," Comment by Toledo Law Student Matthew Boehringer for the University of Toledo Law Review (Fall 2013):

"Filial support statutes have already laid the groundwork and rationale behind adults supporting their dependents and should provide a convenient outlet for a government looking to reduce spending. Society will inevitably find more parents dependent on support from their children. Consequently, more of the elderly population will find that avenue of support estopped should that child die and without a means of familial support.  A modest reform of intestacy laws will address this situation and smooth over inconsistencies between different applications of the same purpose. The burden on the estate should not be excessive because the decedent was already providing for the elderly parent before death. Moreover, probate courts will already know the facts of the case and, thus, are in the best position to provide an equitable treatment for all parties dependent on the decedent. This modest proposal offers little harm but much benefit for some of the weakest of society."

In addition to the above articles addressing obligations that may run from adult child to parent, an article on "Who Pays for the 'Boomerang Generation?' A Legal Perspective on Financial Support For Young Adults," by Rutgers-Camden Law Professor Sally Goldfarb for the Harvard Journal of Law and Gender, analyzes the practical obligations assumed by many single parents, often women, to support adult children who are not yet self-sustaining.  Professor Goldfarb observes that a "financially struggling single mother who provides support for her adult child is at heightened risk of becoming an impoverished elderly woman."  She proposes:

"Instead of urging mothers to 'just say no' to financially dependent adult children, a better approach would be to ensure that the burden of financial support for young adults is distributed more equitably.... Divorced, separated, and never-married mothers of financially dependent young adults are in a position of derivative dependency. If they cut their financial ties to their adult children, they jeopardize the children's financial security. If they don't cut those ties, they jeopardize their own. A solution that safeguards the well-being of both mothers and young adults is urgently needed. In the absence of widely available public programs to meet the needs of young adults, the most obvious solution is to divide the cost of supporting them fairly between both parents...[as she explains in greater detail]."

Don't hesitate to write and let me know if I have missed your recent article addressing filial support laws or related concepts.

April 11, 2014 in Ethical Issues, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)

Thursday, April 10, 2014

Sibling Wealth Inequality

Forbes ran an interesting story in late February, 2014. Laura Shin  wrote the article, When One Sibling Has a Lot More Money. The article focuses on expectations, implications and impact on sibling relationships when there is this wealth imbalance.

The story offers some insights from experts as well as interviews with siblings. One expert offers this thought:

How this inequality plays out between the two siblings runs the gamut... “The expectation of putting your siblings through schooling or helping them buy a house or start a business or something has declined over the course of the 20th and beginning of the 21st century. The sibling reciprocity expectations were much greater 100 or 75 years ago,” he says, mostly due to the overall weakening of family ties, with generations of families no longer all living under the same roof.

April 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Secretary Sebelius resigns....

Via the BBC:

US Health Secretary Kathleen Sebelius is resigning following the problematic launch of President Barack Obama's healthcare law, US media report.  The law - regarded by the president's supporters as one of his main domestic achievements - has been marked by early technical problems and delays.  Sebelius has been health secretary since Mr Obama took office in 2009.  The reports say Mr Obama will nominate Sylvia Mathews Burwell, the current budget director, to replace her.  Ms Sebelius had made the decision to resign herself, the New York Times reported.

Source/more:  BBC

April 10, 2014 | Permalink | TrackBack (0)

Frameworks for Protection of the Rights of Older Persons

An Aging World One of the challenges in crafting legislation that recognizes the interests and needs of older persons is identifying appropriate legal frameworks. 

In the United States we frequently start from a perspective of "protection," but we still have the question of whether a protection framework should be tied to "age" alone, or should be linked to a specific additional criterion, such as "disability" or "vulnerability." 

An example of this occurs in my own state of Pennsylvania, where for a number of years we have had an Older Adult Protective Services Law that permits state intervention to prevent or alleviate abuse, neglect or exploitation of an older adult. In 2010 Pennsylvania adopted an Adult Protective Services Law, expanding the age range of protection, but limiting it to adults between the ages of 18 and 59 who have "a physical or mental impairment that substantially limits one or more major life activities." Four years later, Pennsylvania is still working on implementation. 

Lately I've been working on legislative initiatives and guidelines affecting older persons in Northern Ireland. In Europe generally, such work tends to begin with a human rights framework. I've turned to a number of sources for guidance in this burgeoning field, including:

Again, under human rights frameworks, categorization may still be important, as a specific interest or concern of an older person may be prioritized.  Basic "civil and political human rights" are potentially deemed more important to protect than "economic, social and cultural rights."  Thus, for example, a need for adequate "social security" income may require different steps to protect than the right to be free from discrimination on the basis of age, as outlined recently in an issues brief by HelpAge International.

I know that Kim and Becky are working with Israel Doron on international, comparative analysis of legal rights of older persons.  I'm looking forward to their upcoming book -- and please feel free to let us know of any other related publications. 

April 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 9, 2014

More on Housing

The Bazelon Center for Mental Health Law released a new report in March 2014, A Place of My Own with the sub-title, "How the ADA is Creating Inegrated Housing Opportunites for People with Mental Illnesses."  The introduction to the report explains the following

For virtually all people with disabilities, the most integrated setting appropriate is their own apartment or home, with the supports that they need to live there. Thus, as the law has developed, it has become clear that states must develop more supported housing—an apartment or home with a flexible package of supportive services individually tailored to the person’s needs—to enable individuals with disabilities to avoid needless segregation.

Almost 24 years after passage of the ADA, hundreds of thousands of individuals with disabilities remain needlessly segregated across the country in psychiatric hospitals, institutions for individuals with intellectual and other developmental disabilities, nursing homes, board and care homes, and other similar facilities. The political power of the private industries that serve individuals with disabilities in segregated settings has blocked states from offering these individuals integrated alternatives. By offering individuals with disabilities only segregated settings, however, states place themselves at risk of liability under the ADA. In addition to private lawsuits, the United States Department of Justice has been actively pursuing litigation against states to enforce the rights of individuals with disabilities to live, work and receive services in the most integrated setting appropriate to their needs.

The report provides a history of deinstitutionalization, explains the prinicples of integration, and discusses the components of supported housing.  The report examines the ADA's "integration mandate" and the Supreme Court's decision in Olmstead, as well as the guidance provided by HUD and DOJ.  The report discusses some of the Olmstead settlements and the implications of the Medicaid rules.

April 9, 2014 | Permalink | Comments (0) | TrackBack (0)

Submit Guardianship Related Resources to NGN's New Resource Library

The National Guardianship Network is compling reources for the online International Resource Library on Adult Guardianship. If you have a resource that could be beneficial to your fellow professionals, please consider sharing it on our online library. Forms, manuals, checklists, brochures and more will be posted as a shared resource in this library. Documents can be emailed to info@nationalguardianshipnetwork.org (use the subject “resource library” so that that these materials are not confused with presenters’ Congress handouts). Please provide, in English, a description regarding the document(s) you send, so that we can name and categorize them. Resources may be in English or in the language in which they were written. Please respect U.S. Copyright laws.

April 9, 2014 in Elder Abuse/Guardianship/Conservatorship, Web/Tech | Permalink | TrackBack (0)

Genworth Releases 2014 Survey on Costs of Care

For the 11th consecutive year, Genworth has released its national survey results for long-term care costs, including statistics for nursing home care, assisted living facility care, adult day health care, home health aide services, and homemaker services.  The survey draws upon information from more than 14,800 providers in 440 regions nationwide.

Genworth's 2014 information is offered in several formats, including:

In addition, and not surprising given that Genworth is an insurance company, the website offers planning guidelines, explaining the role for long-term care insurance. 

April 9, 2014 in Consumer Information, Health Care/Long Term Care, Statistics | Permalink | Comments (0) | TrackBack (0)