Tuesday, May 24, 2016

Texas Appellate Case Demonstrates Significance of Contract Terms for Continuing Care Eviction

On April 28, 2016, the Texas Court of Appeals affirmed an award of some $145k in damages to an elderly couple for breach of a "Life Care" contract by their residential community.   In Barton Creek Senior Living Center, d/b/a Querencia at Barton Creek v. Howland, the residential community staff attempted to refuse to communicate with the children of a couple, in their 80s, on the reported grounds that "communication with their children was unworkable because of the discord with the children."  The facility, Querencia, reportedly soon "terminated the Life Care Agreement with the Howlands and ordered them to vacate the premises within thirty days." The Howlands did vacate the premises, moving to an assisted living community with a different pricing and service structure; however, they contended they were denied the "benefit of their bargain" with Querencia.  

On appeal, Querencia does not challenge the finding that it failed to comply with the Life Care Agreement, but contends that the evidence is legally and factually insufficient to support the damages awarded to Howland. Specifically, Querencia argues that the damages cannot be tied to the pre-termination notice being 30 days instead of [the contract's specified notice of]  60 days. It also contends that Howland does not deserve damages for assistive services used after termination that they were already using before termination. Finally, Querencia contends that it properly withheld ten percent of the Howlands' deposit pursuant to their contract.

The appellate court rejected these arguments with a textbook discussion of remedies for breach of contract necessary to protect the non-breaching party's expectation interest:

Although the Howlands employed private care providers while at Querencia, there is evidence that the Howlands' move to The Summit increased their monthly expenses because the monthly rent was higher at The Summit, it provided fewer services than Querencia, and services at The Summit were more expensive.... Howland claimed over a million dollars in damages, Querencia countered that Howland profited from the breach, and the jury awarded Howland $82,500 plus the unrefunded deposit. The evidence in the record supports the jury's exercise of its role as factfinder regarding the damages award. The evidence also supports the jury's award of $62,990 representing the portion of the Howlands' deposit that Querencia did not refund. Querencia asserts that it was entitled to retain ten percent of the Howlands' deposit under the terms of the Life Care Agreement. But the jury found that Querencia breached that agreement, and restitution is a permissible measure of damages for breach of contract.... The jury was empowered to and did decide that Querencia must compensate for its breach by returning the final ten percent of the Howlands' deposit.

The finding of breach appeared to have been predicated on the contract's specified grounds  permitting termination, which included fairly standard provisions such as inability to meet medical needs, nonpayment by the residents, or a resident's breach of "policies and procedures" that create a situation that is "detrimental to the health, safety or quiet enjoyment of the community by other residents or the staff." The court appeared to be persuaded by the argument that Querencia failed to comply with a further contractual provision, mandating parties be given an "opportunity-to-cure" in the event of disputes.  

Despite the affirmance on damages, the appellate court also set aside the trial court's award of $166k in attorney's fees for the plaintiffs, rejecting a "lodestar" argument for the award, and remanded the case for further proceedings on reasonable and necessary fees.

In reading the opinion (and the headnotes from Westlaw on the opinion, which refer to Querencia as a "nursing home"), I'm struck once again by the confusion that "continuing care" contracts, including so-called "life care" contracts, can cause for parties, although usually any landmines tend to affect resident rights, rather than providers.  Thus, I would anticipate that in the future, providers worried about protecting their right to terminate relations with "troublesome" individuals, will attempt to beef up their "policies and procedures," to give clearer rights to refuse to communicate with troublesome family members of residents.  

May 24, 2016 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, May 23, 2016

Association for Gerontology in Higher Ed Conference

The Association for Gerontology in Higher Ed annual meeting is set for March 9-12, 2017 in Miami.  The call for abstracts closes June 1, 2016 with the conference's theme  "The Future is Here: Educating a New Generation of Professionals in Aging Worldwide." A number of tracks will be offered, including on these topics:

Global Aging

Curriculum and Policy Issues

Age-Friendly Environments

Translating Research to Education and Training

Workforce Development

Program and Curriculum Development

Diversity and Social Justice for Older Persons

More information about submitting an abstract is available here.

May 23, 2016 in Current Affairs, Other, Programs/CLEs | Permalink | Comments (0)

California Supreme Court Clarifies Parties Potentially Liable for "Neglect" Under State's Elder Abuse Law

I think it is safe to say that California has one of the most significant -- and for some, controversial -- "elder protection" laws in the U.S.  For example, while all states permit state authorities to investigate and intervene in instances of elder abuse, California's statute recognizes a victim's private right of action for damages, arising from physical abuse, neglect, or fiduciary abuse of an elderly or dependent adult. There are certain proof requirements and limitations on the damages that can be awarded under California's Elder Abuse Act, but, where the plaintiff shows clear and convincing evidence of recklessness, oppression, fraud or malice, the prevailing party can also obtain "heightened remedies," including "reasonable attorneys fees" and costs.  At the same time, the history of the California law also reflects a legislative tension between a determination to address elder abuse and concern about the potential impact of the broader remedy in so-called traditional "medical malpractice" claims.  This tension plays out in a ruling by the California Supreme Court in the long-running case of Winn v. Pioneer Medical Group Inc.  In the unanimous decision published May 19. 2016, the court helpfully summarizes its own holding:

We granted review to determine whether the definition of neglect under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code Section 15600 et seq.; the Elder Abuse Act or Act) applies when a health care provider -- delivering care on an outpatient basis -- failed to refer an elder patient to a specialist.  What we conclude is that the Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient. 

The court further explains, "It is the nature of the elder or dependent adult's relationship with the defendant -- not the defendant's professional standing -- that makes the defendant potentially liable for neglect.  Because defendants did not have a caretaking or custodial relationship with the decedent, we find that plaintiffs cannot adequately allege neglect under the Elder Abuse Act."

The California Supreme Court concluded that the Winn plaintiffs cannot bring a claim for statutory "elder neglect" arising out of allegations that treating physicians failed  for two years to refer an 83 year-old woman to a vascular specialist. The suit dates back to 2007-2009, with the patient alleged to have died from complications associated with chronic ulcers of her lower extremities.  The unanimous ruling reverses the California Court of Appeals' 2 to 1 ruling in favor of the statutory claim, issued in May 2013.  

This ruling does seem to leave nursing homes and similar "custodial" care providers potentially subject to the enhanced remedies of California's Elder Abuse Act. 

May 23, 2016 in Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, May 22, 2016

The PRACTICAL Supported Decision-making Tool from the ABA

Two ABA commissions and two ABA sections have created the PRACTICAL supported decision-making tool for lawyers which "aims to help lawyers identify and implement decision-making options for persons with disabilities that are less restrictive than guardianship." PRACTICAL is the acronym for the steps the lawyer takes to identify the options both during the interview with the client and after when considering the case. The tool is available both as a fillable pdf or a word document. There is also an accompanying resource guide in pdf

Download your copy now!

May 22, 2016 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0)

Friday, May 20, 2016

Caregiving's Impact

I had mentioned previously that I was looking at the Genworth annual cost of care survey.  As a corollary, Genworth has information about who provides care, referred to as The Expanding Circle of Care.  The website mentions the caregivers, with "[t]he Beyond Dollars Research reveal[ing] 5 key insights on the true impact of long term care." The Expanding Circle of Care Beyond Dollars 2015 explains the 5 "key insights" in the executive summary. The circle of care is explained as:

The financial, physical and emotional demands of providing care for a loved one can sometimes be more than a single caregiver can handle. The good news is that more family members are helping provide care. The opportunity to plan for the likelihood of needing long term care before a crisis situation occurs remains large. Our research has shown that a "Circle of Care" often forms around the care recipient, involving people who provide different levels and types of support.

The second insight is that although caregivers are positive about their role of caregivers, they note that "[c]aregiving can negatively impact health & well-being", including familial relationships and interactions with friends. The third insight is instructive regarding the future: "Caregivers’ savings and retirement funds are at risk"

Caregivers who help provide financial assistance for the care of their loved ones estimate that they pay, on average, a total of about $10,000 in out-of-pocket expenses.

That’s up from an average of $7,285 in 2010. Those financial expenses can include everything from household expenses, personal items, or transportation services, to payment of informal caregivers or long term care facilities.

Most caregivers did not anticipate or plan for this expenditure. In many cases, they are cutting back on personal spending and savings. More significantly, some may be jeopardizing their own financial futures.

 

It follows logically then that the fourth insight  builds from the third one: "Caregivers’ careers and livelihoods are impacted by providing care."  The caregivers who work reported a definite impact on their jobs, which in turn impacts the caregiver's bottom line. "Absences, reduced hours and chronic tardiness can translate into a significant reduction in a caregiver’s paycheck."

The executive summary is available here.

 

 

 

 

May 20, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Statistics | Permalink | Comments (0)

Thursday, May 19, 2016

Medicaid As a Funding Source for Non-SNF Senior Living? Upcoming Webinar Offers a Provider Perspective

New Jersey allows Medicaid dollars to be used in assisted living; Pennsylvania does not (or at least, not yet).  What is the rule in your state? And if you want to see the rule change, how do providers feel about the potential to expand availability of public funding dollars to settings outside the so-called traditional nursing home?  

That perspective may be part of an upcoming Webinar entitled "Assisted Living and Medicaid: Will it Kill A Great Product?" The fee-paid program is offered by Levin Associates,  scheduled for June 2, 2016.  Here's part of the webinar description:

When purpose-built and professionally managed assisted living burst on the seen 25 years ago, consumers were starved for the product. It became the hottest development product in seniors housing within a few economic cycles, and in its early life it became an upscale alternative to old skilled and intermediate care facilities. Then Medicaid waivers came into existence for assisted living, and some of the new properties had a Medicaid census up to 20% or higher in some states. From a state government budget perspective, assisted living saved the state money as a cheaper alternative for appropriate residents than a nursing facility. Some states require a Medicaid or income-qualified set aside for a certain number of units in new assisted living communities. Old nursing facilities that can't compete in the subacute/rehab skilled nursing market may be turned into a modern Medicaid ALF. What started as a private pay product may evolve into a state-funded product, at least for some percentage of the population. 

May 19, 2016 | Permalink | Comments (0)

Simulated Aging

While I was on the Genworth site looking at the looking at their annual Cost of Care survey findings, I noticed their simulated aging project, R70i Aging Experience. The Genworth R70i Aging Experience, according to the website "uses state-of-the-art technology to help people step into their future selves and directly experience the physical effects associated with aging. The experience reinforces the importance of thinking about future long term care needs and talking to loved ones about how they would like to age." The website offers interactive controls so the user can examine certain points of the "aging suit" as well as a video that shows how the suit functions along with a narration.  This would be really cool if we could have one for our students to use, so they can experience it firsthand. (If anyone from Genworth is reading this and wants to donate one to us, I promise we'll share with other educational institutions :-))

May 19, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Science | Permalink | Comments (0)

Wednesday, May 18, 2016

"Emotional Triggers" Can Influence Older Adults' Response to Fraudulent Practices

The Stanford Center on Longevity has a new report evaluating the effect of emotion on practices used to ensnare older adults.  In Heightened Emotional States Increase Susceptibility to Fraud in Older Adults, the researchers "examined whether inducing high-arousal positive and high-arousal negative emotions . . . increases susceptibility to fraud" and whether the effects vary with age.  They found, for example that:

  • Excitement and anger can both serve to increase older adults likelihood of purchasing falsely advertised items, while these emotions did not show the same effect in younger adults.
  • "Advertisement credulity" was more often a factor evaluated by younger adults than older adults when deciding whether to make a purchase.   

The study was funded through the Financial Fraud Research Center by AARP and the FINRA Investor Education Foundation. In reading the short report, I was actually reminded of my 7th grade teacher, Mr. Tameron, who had an entire unit on how advertising can unduly influence buyers' behavior, and darned if he didn't make exactly this same point (although not separated by customer age), urging us to recognize that emotions such as outrage, attraction, anger, and fear can be used to manipulate customers' responses to advertising.  Mr. T, you were ahead of your time!

My thanks to Professor Laurel Terry, Dickinson Law, for sharing this link.  Laurel and Howard's son, Devon, graduates next month from Stanford.  Congratulations, Devon (even as I suspect I'm going to miss getting this easy source of Stanford Longevity Center news)! 

 

May 18, 2016 | Permalink | Comments (0)

Aging. Can We Cure It?

We have blogged before about the idea of aging that is something to be "cured".  The recent article in the New York Times explained some cutting edge research about fighting aging. Dogs Test Drug Aimed at Humans’ Biggest Killer: Age explains about a clinical trial with dogs that has implications for humans "the trial also represents a new frontier in testing a proposition for improving human health: Rather than only seeking treatments for the individual maladies that come with age, we might do better to target the biology that underlies aging itself."  The drug being tested on dogs was previously tested on mice and "improved heart health and appeared to delay the onset of some diseases in older mice" but there is no guarantee that the same result will be achieved with dogs.

According to the article, age itself serves as a huge risk factor for a number of fatal diseases, so "[a] drug that slows aging, the logic goes, might instead serve to delay the onset of several major diseases at once." "Geroscience" that is "the study of aging’s basic biology" according to those quoted in the article, hasn't received a lot of attention. There's some genius in the approach of testing this drug with dogs, given American's love affair with their dog family members.

“Many of us in the biology of aging field feel like it is underfunded relative to the potential impact on human health this could have,” said Dr. Kaeberlein, who helped pay for the study with funds he received from the university for turning down a competing job offer. “If the average pet owner sees there’s a way to significantly delay aging in their pet, maybe it will begin to impact policy decisions.”

The article explains that research has been  more "disease-specific" rather than globally looking at slowing down aging. Although the article does mention some projects that are specifically looking at slowing down or reversing aging.  The article also explains the challenges for research in this field. What would be the results to humans if this research proves successful? A longer, healthier life. And if it isn't successful? Dr. Kaeberlein, explained: “I would argue we should be willing to tolerate some level of risk if the payoff is 20 to 30 percent increase in healthy longevity,” he said. “If we don’t do anything, we know what the outcome is going to be. You’re going to get sick, and you’re going to die.”

 

May 18, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Science | Permalink | Comments (0)

Tuesday, May 17, 2016

The Economics of Fiduciary Litigation (in 2 parts)

I've reached that annual ritual known as "let's clean off my desk because that is more fun than grading exams."  Always a good opportunity to find a few treasures that escaped my closer attention during the academic year.  And along that line, I was intrigued to find the two-part series on "Alternative Litigation Finance," written by Holland and Knight attorneys Robert Barton and Wendy Walker.

Part 1:  The Waiting Game -- The Economics of a Fiduciary Litigation Practice. Here's an excerpt:

What Is Alternative Litigation Finance? The structure of a litigation finance deal can vary significantly depending on the type of case, the company involved, the stage of the case when funding is sought, the amount of money requested, and many other factors. At its core, though, ALF is the advancement of funds to attorneys or clients by a thirdparty company to pay legal fees and costs related to litigation. In general, a litigation funder makes a return on the funds, whether through interest earned over the life of the advance, a multiple of the advanced amount, or a percentage of the recovery paid to the client at the conclusion of the matter. The transaction is typically nonrecourse, meaning the company only recovers to the extent that the client recovers. The funder does not look to the client’s other assets, beyond the settlement or judgment, to satisfy the repayment of the funds. In some circumstances, however, the client may offer additional collateral to secure the amount needed.

Part 2:  The Ethical Do's and Don'ts: Best Practices when Clients Finance Fiduciary Litigation. To whet your appetite:

To provide maximum protection for the client, at the outset of a new matter, an attorney should request a written confidentiality agreement among the funder, the client, and the attorney. The agreement should provide the express recognition that any nonprivileged, but confidential, information that is shared is done so with the intent to maintain its confidential nature. Although not a full guarantee against future disclosure, such an agreement does demonstrate the intention of the parties and has been a persuasive argument to courts evaluating disputed discovery issues.

These articles originally appeared in the ABA's publication, Probate and Property, with the second of the two articles published in the November/December 2015 issue.  (The good news is that by waiting a bit, both of these articles are now available on the web, and not just through the ABA subscription.) 

May 17, 2016 in Current Affairs, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management | Permalink | Comments (0)

Monday, May 16, 2016

The Alzheimer's Poetry Project - Involving Families and Caregivers

Have you ever been surprised by a loved one who, even with Alzheimer's, will sing or recite poetry?  If you've had that experience, you will probably be as intrigued as I was by the Alzheimer's Poetry Project.  Here are the details.

May 16, 2016 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s | Permalink | Comments (0)

Sunday, May 15, 2016

Caregiving For Elders-Not Just A Family Issue, But A Work Issue

We have posted before about family caregivers and their importance.  AARP's May 10, 2016 blog  post,  Eldercare Primarily Concerns Older Workers and Their Employers, Right? Think Again,  explained that "[f]or employers big and small, the need to support workers who also provide unpaid care for a family member is a growing reality." A huge number of family members who work (60%) also serve as family caregivers.  Here's an important point about those 60%, slightly over 50% of them are at least 50 years old. But caregiving is not just an elder law issue, because there is a significant number of younger caregivers too. Almost three-quarters of millenials reported that they were caregiving and working. The blog post ends with the suggestion that
"[a]dvancing a culture of understanding about eldercare needs is especially important to help make the workplace more supportive of workers who are also family caregivers — many of whom are in their prime working years."

 

May 15, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Other | Permalink | Comments (0)

HCR ManorCare to "Spin Off" Into "SpinCo"

As reported in several financial news services, including McKnight's Long-Term Care News here, HCR ManorCare, owner/operator of a large number of skilled nursing and assisted living properties, is to be spun off by its corporate parent, HCP Inc., into the hands of "an independent real estate investment trust" called, appropriately enough, "SpinCo."  

Certainly this seems to be a move to improve the financial position of HCP by separating the nursing home operations from independent living operations;  it remains to be seen whether it also allows "troubled" HCR ManorCare to resolve concerns about quality of care and billing practices. The business history of ManorCare, with all of its various partners and name changes, probably serves as a marker for changes throughout the skilled care industry.   For ManorCare's own perspective on its history, see "Our History Is Still Being Written."   

May 15, 2016 in Consumer Information, Dementia/Alzheimer’s, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing | Permalink | Comments (0)

Friday, May 13, 2016

Evict, Reject, Discharge: Are Nursing Homes Following the Rules or Is the Problem Bigger than "Rules"?

My colleague Becky Morgan posted earlier this week on the AP news story on nursing homes' attempts to evict difficult patients.  This week the ABA Journal also linked to the AP story,  plus tied the statistical reports of a nation-wide increase in  complaints about evictions, rejections and  discharges to one man's struggle to return to his California care center following what should have been  short term hospitalization for pneumonia. 

The story of Bruce Anderson is a reminder that a need for high-quality, facility-based "long term " care is not limited to "elderly" individuals.  But it is also a reminder that individuals with serious behavioral issues, not just physical care needs, complicate the picture.  Anderson experienced a severe brain injury at age 55 following a heart attack,  but his younger age, lack of "private pay resources," and  a history of apparently problematic behavior, are all reasons why a "traditional" nursing home may seek to avoid him as a resident.  

The ongoing California litigation over Mr. Anderson and similarly situated residents heightens the need to think critically about whether we're being naive as a nation about "home is best" shifting of funding resources.  Certainly there are many -- and probably too many -- individuals in facilities when they could  be maintained at home if there was more funding to supplement family-based care.  

At the same time, I tend to see this as downplaying the very real needs for high-level, behavioral care for individuals who aren't easily cared for by families or "traditional" nursing homes, much less by hospitals organized around critical care.  It is about more than mere eviction, discharge and rejection statistics.  The 1999 Olmstead decision was a watershed moment in recognizing the need for de-institutionalization of those with disabilities.  But it may have pasted over the real need for quality of assistance and care in any and all settings, and what that means in terms of costs to a nation.   

My thanks to Professor Laurel Terry at Dickinson Law who took time away from the fun of grading her exams to send us the ABA story.  

May 13, 2016 in Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases | Permalink | Comments (0)

Thursday, May 12, 2016

Capacity to Drive

The latest issue of Biofocal from the American Bar Association Commission on Law & Aging is out, and the cover story is an article by Erica Wood on Evaluating the Capacity to DriveMs. Wood explores the question of what is the needed capacity to drive, and notes the skills one needs to be a safe driver.

[E]valuating capacity to drive is of course different from evaluating capacity to make decisions or execute legal transactions. First, driving involves a mix of mental, physical, and sensory abilities. Second, driving has serious risk not only for oneself but also for others as well. And third, the determination of capacity to drive initially rests not with a judge but with the commissioner of the state department of motor vehicles—although judges may well be involved in decisions about drivers licenses, as described in the “View from the Bench” by Judge Lyle. While state laws vary, the Uniform Vehicle Code provides that a license may be denied if the state commissioner finds that a person “by reason of physical or mental disability would not be able to operate a motor vehicle with safety upon the highways” (National Committee on Uniform Traffic Laws and Ordinances).

Using the ABA/APA handbook for psychologists "general capacity evaluation framework," Ms. Wood breaks down the assessment elements for capacity to drive: the legal element, the functional component, diagnosis, values, mental health assessment, risk assessment, and clinical judgment that is needed in order "to integrate all of the evidence from the previous steps on supports, conditions, risks, abilities and limitations." The article underscores the need to examine the driver's values, consider emotional factors such as hallucinations and whether the person has capacity with support. Capacity with support is explained as "supports and accommodations that might enhance ability."

In the driving context, this might mean a change of eyeglasses, a higher seat or pillow, a revolving seat, or pedal modifications. With such supports, a functional assessment will test for visual acuity; flexibility to look behind and check blind spots on the road; and strength for control of the steering wheel, brakes, accelerator, and clutch. An assessment also will test the driver’s knowledge about driving rules and what to do in emergency or unexpected situations.

A pdf of the article is available here.

May 12, 2016 in Consumer Information, Current Affairs, Other, State Statutes/Regulations, Travel | Permalink | Comments (0)

Wednesday, May 11, 2016

A Power of Attorney Without Power

On May 6, 2016, the New York Times ran an article by Paula Span for the New Old Age series, Finding Out Your Power of Attorney Is Powerless. Experienced elder law attorneys are unlikely to be surprised by the point made in the article:  financial institutions want customers to use their own powers of attorney, not one drafted by the customer's lawyer.  The article notes this is "very unwelcome news, because by now the older account holders may not be competent to sign legal forms."  One frustrated customer offered this insight "[w]e have a  power of attorney, but we can’t use it ... People sign these anticipating incapacity. Once incapacity arrives, it’s too late to sign another one.”

As the article notes, this isn't a huge revelation to elder law attorneys but "[i]t’s not clear how often similar scenarios, with their Catch-22 absurdity, take place."  The article offers the other side of the issue, from the financial institution's perspective, since these institutions are in charge of the customer's money, and everyone knows about the increase in financial exploitation, issues with diminished capacity of customers and family members who are the perpetrators. But notes one expert, "banks have other motivations, too. 'Typically, when they’re insisting on their own forms, they’re concerned about liability,'” 

The article offers suggestions-have a lawyer intercede with the financial institution or be proactive and "ask... a brokerage or bank if it requires its own durable power of attorney document and, if it does, having your relatives sign it when they are still capable of doing so. You’ll have to do this for every institution where they have an account."  There is a big caveat with this second suggestion, according to the article, quoting Craig Reaves, a past president of NAELA: "read those bank forms carefully or have a lawyer review them, Mr. Reaves advised. They can contain disadvantageous indemnity or arbitration clauses, or provisions that contradict the individual’s general power of attorney. In such cases, 'I’ll tell clients not to sign, and we’ll fight the fight,' he said."  Some family members caught in the catch-22 came up with their own solutions, such as opening accounts at other financial institutions or waiting until the parent is having a "lucid moment" to sign the bank's form.

It's hard to explain to students why a financial institution refuses to accept a legally valid DPOA drawn by an attorney.  This article sheds some light on the problem, but clearly, it's still a problem.

 

May 11, 2016 in Consumer Information, Current Affairs, Property Management | Permalink | Comments (0)

Tuesday, May 10, 2016

Nursing Home Resident Evictions Increase for "Problem" Residents

Let's just start by saying the article I'm about to cite is a must-read for us. 

The AP did a story on May 8, 2016, Nursing homes turn to eviction to drop difficult patients. The article opens "Nursing homes are increasingly evicting their most challenging residents, advocates for the aged and disabled say, testing protections for some of society's most vulnerable...Those targeted for eviction are frequently poor and suffering from dementia, according to residents' allies. They often put up little fight, their families unsure what to do. Removing them makes room for less labor-intensive and more profitable patients, critics of the tactic say, noting it can be shattering." 

The AP did a study of data from the Long-Term Care Ombudsman Program and learned that complaints regarding involuntary discharges have increased by about 57% since 2000. "[Discharge] was the top-reported grievance in 2014, with 11,331 such issues logged by ombudsmen, who work to resolve problems faced by residents of nursing homes, assisted living facilities and other adult-care settings."  Why this increase in discharges? The article offers that the involuntary discharge often happens "because the resident came to be regarded as undesirable — requiring a greater level of care, exhibiting dementia-induced signs of aggression, or having a family that complained repeatedly about treatment, advocates say. Federal law spells out rules on acceptable transfers, but the advocates say offending facilities routinely stretch permitted justifications for discharge. Even when families fight a move and win an appeal, some homes have disregarded rulings."

The American Health Care Association offers an opposing view of the discharges, explaining that in some cases it is "lawful and necessary to remove residents who can't be kept safe or who endanger the safety of others, and says processes are in place to ensure evictions aren't done improperly."

The article also includes examples where a resident is admitted to a hospital and when ready to return to the nursing home, is refused readmission. Several cases are highlighted in the article, with experts from both sides of the issue offering opinions. The article also references staffing levels and the trauma encountered by residents who find themselves in a discharge situation.

Have your students read the applicable federal statute and then this article. I guarantee an interesting discussion.

May 10, 2016 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid | Permalink | Comments (0)

Monday, May 9, 2016

New Article-Preventing DPOA Abuses

The May 2016 issue of the South Carolina Bar Journal, SC Lawyer contains the article, Quick and Dirty Tips to Prevent Power of Attorney AbuseThe author offers several tips, starting with meeting with the client alone, determine if the client has capacity to sign the DPOA, ascertain the client's goals and expectations, "name an honest, trustworthy and trusted agent" (the author suggests the attorney "[google the agent and check your local court judgment index"); consider co-agents; use a springing POA; include an accounting provision to require the agent "to account in some fashion to a family member(s) or other trusted individual. It can be as formal or as informal as the principal desires. In that way there is another person informed about the principal’s financial situation" and even using a "cooling off" period for the client to think further before signing the DPOA.

The article also covers actions when the agent misuses the DPOA. The article concludes

There is no easy answer to the problem of elder financial abuse. There is no silver bullet. Elder financial abuse is a problem that is only going to get worse. We as attorneys can’t prevent all financial abuse, but we need to be aware of, and adopt, measures that reduce the risk of durable power of attorney abuse. The threat can never be eliminated, but with communication and education, it can be minimized.

 

Thanks to the article's author, Michael J. Polk, for sending me the link to the article.

 

May 9, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Sunday, May 8, 2016

Alzheimer's: Unraveling One's Life

The New York Times recently ran an in-depth article about Alzheimer's impact on one woman.  Fraying at the Edges covers the journey of Geri Taylor, who at the beginning stages of Alzheimer's is described as in the "waiting period" of Alzheimer's. This 12 page article is an incredible personal look at one person's life with Alzheimer's. The article is accompanied by photos and short videos.  Read this article!

May 8, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s | Permalink | Comments (0)

Thursday, May 5, 2016

A Handbook for Aging

Ever think humans need to come with a user's manual to explain the aging process? According to the Washington Post article on April 22, 2016, help is on the way.  ‘Old Age: A Beginner’s Guide’: What you really need to know about life’s later years reviews “Old Age: A Beginner’s Guide.”  The article describes the author

Kinsley is both realistic and remarkably cheerful in writing about aging, death and his own health in this brief collection of essays, some of which have appeared in Time, the New Yorker and elsewhere. The book is framed as a guide to old age for Kinsley’s contemporaries. “Sometimes I feel like a scout for my generation,” he writes, “sent out ahead to experience in my fifties what even the healthiest boomers are going to experience in their sixties, seventies or eightes.”

He describes the Boomers as wanting longevity but really wanting cognition.  The Post describes the book as a fun and informative read. 

Whether offering a final set of goals for achievement-oriented boomers, describing his DBS (deep brain stimulation) surgery, debating stem-cell research or defending his decision after the Parkinson’s diagnosis (“I chose denial”), Kinsley, a contributing columnist to The Washington Post, is refreshingly straightforward and often wickedly funny.

The New York Times review of the book is available here.

May 5, 2016 in Books, Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0)