Thursday, November 27, 2014
Recently I have encountered several thoughtful articles about the language we use, and the approaches taken, when talking with older persons. This seems to be an especially appropriate topic for the holiday season, when families often come together, sometimes from great distances. Whether we are talking with clients or family members, some of the same dynamics may be in play, especially when the question is about planning for the future.
From the ABA Commission on Law and Aging's Bifocal publication, comes David Solie's "The Wrong Signals: Shutting Down the Planning Conversation Before It Starts." He encourages us to "consider the psychological landscape of older clients -- it is a world embedded with two dominant agendas posing significant resistance to change. Together, these psychological currents create a deep inertia to disrupting the status quo." He labels these barriers to change as:
- Ambivalence and the "Righting Reflex," and
- The Need for Control
He suggests approaches, including the use of open-ended questions, reflective listening, and making a conscious decision about what words to use. For example, he suggests that when we start to discussion options, we explain more clearly that advance planning helps to "preserve choice" and avoids "loss of control."
Another potential problem may arise from "Elderspeak," a label social scientists use to refer to a tendency to use "patronizing" tones or words when speaking to anyone who is older. One recent article in McKnight's News made me chuckle, as it points to the well-meaning but potentially misguided use of words such as ""honey" by professionals when working with elders.
My father, a federal judge for more than 30 years, at age 89 may have forgotten many things -- but he does not take kindly to being called "honey" by strangers. He now has an entire assisted living campus, even a few of the other residents, calling him "Judge" or "Your Honor." I bet you might know a judge or two like that? When it comes to control, I'm not sure who is teaching whom about holding court.
Here's to more humor in all of our holidays -- and more opportunities for effective communication -- both within the family and beyond. Happy Thanksgiving!
Wednesday, November 26, 2014
Dr. Peter Beurhaus from Vanderbuilt University uses a question and answer format with colleagues at his university to explain how Vanderbilt's Program in Interprofessional Learning (VPIL), established in 2010, has involved "challenges, successes and surprises" for participants. The dialogue, published in Health Affairs Blog, emphasizes key points, including:
- "Initially, we thought only of nursing and medicine but the more we examined the clinical situation, the more we realized that other health care providers were integral. So we looked at adding pharmacy and then social work. The challenge was to identify the place in the curriculum where our health professions students and interprofessional education would best fit."
- "The notion of having one program that would meet requirements for four very different professions was quite challenging."
- "Faculty representing each of the four health professions had to become liaisons between VPIL and their home professional school. Their work included negotiating the alignment of the home school’s goals, objectives, competencies, credit requirements, etc. with the innovative vision of an IPE curriculum in order to eliminate the 'add on' effect for the program. They had to be creative when identifying where a VPIL experience could be substitutive and simultaneously nurture their own role as part of the interprofessional faculty team charged with creating a meaningful educational program that met IPE goals."
- "We intentionally partnered with people who had the same level of commitment that we did, and were conscious not to let extraneous things get in the way."
Along a similar line of interprofessional programming, see the commentary on "Interprofessional Education for Future Physicians: Including Legal Competencies," by Amy T. Campbell and our long-time friend Marshall Kapp.
Hat tip to Delaware health law attorney Jennifer Davis-Oliva for sending links to both of these commentaries.
Tuesday, November 25, 2014
Ramping up into Thanksgiving celebration, thinking about the things for which we are thankful---how about adding caregivers to that list? Huffintong Post Third Metric ran a three-part series earlier this month on Unsung Heroes: The Face of American Caregiving. The Unsung Heroes Who Give Up Everything To Take Care Of A Sick Partner, the first installment in the series, focused on eleven extraordinary caregivers providing care to spouses/partners. The second, The Unsung Heroes Who Give Up Everything To Take Care Of A Sick Parent covers 10 family members providing care for their parents., 9 of whom are over the age of 50. The final installment, The Unsung Heroes Who Give Up Everything To Take Care Of Multiple Loved Ones covers ten amazing individuals who have provided care for multiple generations.
Knowing the statistics on caregiving, a number of us will be called upon to provide the care. These folks will inspire you. Happy Thanksgiving.
New Jersey Elder Law Attorney Linda Ershow-Levenberg outlines factual and legal issues to consider in deciding how to handle the family residence in a recent article for Experience, the ABA publication for the Senior Lawyers Division. She warns that the "real trick is balancing [the clients'] financial security against the hopes of their heirs."
She begins by urging lawyers to resist a simplistic inquiry or "one size fits all" approach to elder law planning, stressing that lawyers should consider the impact of a proposed real estate conveyance on:
- the elder's right to remain in the home;
- a Medicaid application for either at-home or institutional services;
- the income taxes of both transferor and transferee;
- the elder’s financial and physical ability to remain in the home;
- the elder’s estate plan; and
- present and future liens and mortgages.
She observes that frequently an elder's "plan" to divide property equally among children or other heirs conflicts with the way in which property is already titled, noting that sometimes the choice of co-owners or death beneficiaries was intentional. "As often as not, however, the elder simply did not understand that beneficiary designations such as 'POD' (pay on death) or 'ITF (in trust for) control the disposition of an asset despite contrary instructions in the will." Additional complicated and conclusive presumptions may exist, arising from the form of title for real property, that also may conflict with a will, thus triggering expensive challenges that could have been avoided with more comprehensive understanding of the client's estate.
The article appears to be written for non-specialist lawyers, who are often asked to do "simple" estate planning that, in the wrong hands, can result in anything-but-simple outcomes for the family.
Here's the link for more on "Preserving the Primary Residence: The Minefield of Real Estate Transactions in Elder Law Planning."
The theme of this issue of Experience is "Real Estate Issues Affecting the Elderly," and the issue includes discussion of the pitfalls of reverse mortgages, income tax liability connected to foreclosures, and "unique" property rights issues for seniors in Western states, including water rights.
Monday, November 24, 2014
I'm a senior faculty member at my law school. It doesn't seem like that long ago I was junior faculty and one day I realized I was now one of "them". I don't even recall being "middle management" but I must have been so, for a few years. So first as an elder law prof and second as a senior faculty member, I've been interested in a couple of articles published in the Chronicle of Higher Education. The first article, The Forever Professors appeared in the Chronicle Review on November 14, 2014 in the Opinions and Ideas section. The next, Ageism in Academe, appeared Novembere18, 2014 in the Chronicle's blog.
There are a number of issued raised in this articles, and it appears there is a fair amount of interest, both with the Forever Professor piece and The Ageism post when you consider the number of comments posted to the two. I'm sure we all cover aging and ageism in our classes and it engenders good discussions.
I wondered about whether to integrate in my classes the points made in these Chronicle articles (note, neither of these profs are law faculty-whether this is relevant or not). I am not going to summarize or comment on the two articles. I do encourage you to read them...and the comments.... and draw your own conclusions about the teaching points we can glean from them. Meanwhile, I'm going to ponder them further while I think about preparing for the next semester's classes.
Several high profile incidents, such as those reported here in our Blog and here by the Philadelphia Inquirer, involving attorneys disciplined or convicted of theft of client funds, have triggered proposed changes in Pennsylvania's Rules of Professional Conduct for attorneys. The rule changes proposed by the Pennsylvania Supreme Court's Disciplinary Board include:
- imposing restrictions on an attorney's brokering or offering of "investment products" connected to that lawyer's provision of legal services;
- clarifying the type of financial records that attorneys would be required to maintain and report, regarding their handling of client funds and fiduciary accounts;
- clarifying the obligation of attorneys to cooperate with investigations in a timely fashion;
- clarifying the obligation of suspended, disbarred, or "inactive" attorneys to cease operations and to notify clients "promptly" of the change in their professional status.
The Disciplinary Board called for comments on the proposed rule changes, noting that although individual claims against the Pennsylvania Lawyers Fund for Client Security are confidential, "Fund personnel can attest that from time to time, the number of claims filed against a single attorney will be in double digits and the total compensable loss will amount to millions of dollars." The comment window closed on November 3. 2014.
In recommending changes, the Disciplinary Board noted common threads running through many of the cases, including:
November 24, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Sunday, November 23, 2014
GeriPal's blog post on November 22, 2014 highlighted some new tech that is guaranteed to improve the lives of users. Although these may not yet be available, consider the potential. The blog covers 6 inventions; here are 3 that caught my eye in particular: spoons that block tremors, headphones that play music from a specific era, and a car that allows a wheelchair to be rolled right into it. It's truly amazing to see all off the technologies that are being developed to allow elders more autonomy and an improved quality of life. If you don't follow the GeriPal blog, you really need to do so. Great stuff!
From Kaiser Health News, this report of "confusion, frustration and resistence," associated with California's first six months of efforts to move 500,000 low-income seniors and disabled persons into managed care:
"'The scope and the pace are too large and too rapid for what is supposed to be a demonstration project,' said Dr. William Averill, executive board member of the Los Angeles County Medical Association, which filed a lawsuit to block the project. 'We are concerned that [the project] is ill-conceived, ill-designed and will jeopardize the health of many of the state’s most vulnerable population – the poor, the elderly and the disabled.'
There is a lot riding on the pilot — the largest of its kind in the nation. The patients involved are among the most expensive to treat – so-called 'dual eligibles,' who receive both Medicare, the health insurance program for the elderly and disabled, and Medicaid, which provides coverage for the poor. Over the three years of the demonstration project, California is focusing on 456,000 of the state’s 1.1 million dual eligibles.
State officials acknowledge some transition problems but say the project will provide consumers with more coordinated care that improves their health, reduces their costs and helps keep them in their homes. In addition, officials estimate the program could save the state more than $300 million in fiscal year 2014-2015."
For more, read "California's Managed Care Project for Poor Seniors Faces Backlash," by Anna Gorman.
Friday, November 21, 2014
On November 19, attorneys representing families and the Commonwealth of Pennsylvania argued consolidated cases before a panel of the Third Circuit Court of Appeals, involving use of short-term annuities in connection with applications for Medicaid-funded care. The argument follows appeals from a January 2014 decision on summary judgment motions by the Western District of Pennsylvania in the case of Zahner et al. v. Commonwealth of Pennsylvania.
A key issue on appeal is whether use of "shorter" term annuities is permitted by the language of federal Medicaid statutes referring to actuarially-sound annuities, or whether such use automatically constitutes a transfer of assets for less than fair value, and thus is treated as a prohibited gift. HCFA Transmittal 64 is the subject of much of the very technical debate.
The jurists on the panel are Judge Theodore McKee (the male judge's voice on the recording), Judge Marjorie Rendell, and Senior Judge Dolores Sloviter (the softer voice on the recording). Interestingly, rather early in the argument, at least two of the judges interject to make the observation that "there is nothing wrong with Medicaid planning, per se," noting, rather, that the issue is the extent to which specific planning approaches have been directly addressed by federal law.
Listening to the oral argument in this case provides an opportunity for students in advanced legal studies on asset planning to consider cutting edge legal issues and policy concerns. The argument is also an opportunity for even first-year law students to discuss argument techniques, and to consider what does or does not work well with judges (and vice versa). It was a "hot" bench and there was a lot of interruption from both sides.
Thursday, November 20, 2014
The Institute of Medicine (IOM) has released a great graphic on palliative care. What Should You Know About Palliative Care? has six graphics on topics including scope, function, location, family services and the benefits of palliative care. The infographic can be downloaded or a poster can be ordered by sending an email. The webpage also includes a link to the IOM report, Dying In America
If you recognize the quoted language from the title above, you can imagine me humming the lyrics to "Silver Bells" as I type. Perhaps we should add a new refrain. As detailed in the Los Angeles Times piece on "Residents Celebrate the 100th Repaired Sidewalk in South L.A. District," safe sidewalks are important to everyone, but particularly to people who have mobility issues, including some older adults. In the article, a stretch of deteriorated sidewalk outside an 84 year old woman's home prevented her for using her walker to get around her neighborhood. The challenge of accomplishing something as seemingly simple as this infrastructure issue, is demonstrated by the statistics in the article, showing there are 11,000 miles of sidewalks in L.A., and an estimated 40% are in need of repair.
The question of how to pay for sidewalk repairs is significant for cities. In Los Angeles, for example, policies on sidewalks can conflict with developers' preference for streets lined with trees. Tree roots are often the cause of sidewalk damage. For a number of years in the 70s, the city offered free repairs for sidewalks damaged by tree roots. But as budgets tightened, public funding was withdrawn, and subsequent efforts to create alternative funding for sidewalk repairs have been controversial.
In my own small community, there is an ordinance that permits the governing body to mark sidewalks in need of repair with a big X (and for some reason they do so with pink paint), and the home or business owner has a fixed amount of time to make the repairs, or be subject to public repairs at a potentially higher price. Obviously this approach won't work in every community -- and it is probably less than cost effective unless adjacent property owners work together to save money on contractors.
By the way, while humming along on this topic, I discovered that there is a relevant, highly placed, law review article -- mostly dealing with sidewalk safety in winter weather -- published in 1897 in Yale's legal journal. See "The Law of Icy Sidewalks in New York State," 6 Yale L. J. 258. In this article I learned the interesting historical fact, that at least in some jurisdictions of the day, "it is not negligence for a person to walk upon an icy sidewalk without rubbers."
Wednesday, November 19, 2014
This is one list where we don't want to be last-yet we are. According to a Commonwealth Fund November 19, 2014 story, U.S. elders are the sickest when compared to 10 other countries. 11-Nation Survey: Older Adults in U.S. Sickest, Most Likely to Have Problems Paying for Care notes that "[c]ompared with their counterparts in other developed countries, older adults in the United States are sicker, see more doctors, take more prescription drugs, and have a harder time affording the care they need, according to a new Commonwealth Fund survey of people age 65 and up." The survey is published in Health Affairs . The abstract for the article explains
Industrialized nations face the common challenge of caring for aging populations, with rising rates of chronic disease and disability. Our 2014 computer-assisted telephone survey of the health and care experiences among 15,617 adults age sixty-five or older in Australia, Canada, France, Germany, the Netherlands, New Zealand, Norway, Sweden, Switzerland, the United Kingdom, and the United States has found that US older adults were sicker than their counterparts abroad. Out-of-pocket expenses posed greater problems in the United States than elsewhere. Accessing primary care and avoiding the emergency department tended to be more difficult in the United States, Canada, and Sweden than in other surveyed countries. One-fifth or more of older adults reported receiving uncoordinated care in all countries except France. US respondents were among the most likely to have discussed health-promoting behaviors with a clinician, to have a chronic care plan tailored to their daily life, and to have engaged in end-of-life care planning. Finally, in half of the countries, one-fifth or more of chronically ill adults were caregivers themselves.
The full article is available on the web as a pdf here.
Earlier this month, Yale Law School hosted a conference marking the 50th anniversary of the passage of Medicare and Medicaid. The program speakers were encouraged to examine the precedents set by these two major programs, against the backdrop of recent health care reform initiatives. Videos from sessions on "The Law of Medicare and Medicaid at 5o" are now available to the public, including segments on:
- Medicare, Then and Now
- Historical Context, Legislation & Administration
- Policy Making and Innovation
- Health Law Federalism, Especially After NFIB
- Looking Ahead
In addition, the presentation by keynote speaker Ezekiel Emanuel, Vice President of Global Initaitives and Chair, Medical Ethics and Health Policy at the University of Pennsylvania is available.
The video segments, while interesting, may be a little difficult to sit through, as they are not edited, and some of the speakers are not using the microphones. Fortunately, Professor Allison Hoffman from UCLA School of Law and others have written a wonderful series of pieces, stemming from the Yale program sesssions, and the articles are posted on Health Affairs Blog.
Tuesday, November 18, 2014
The Elder Law Program at the William S. Richardson School of Law, located at UH Manoa, has updated its indispensable guide to aging, including offering clear coverage of the many legal and medical issues involved. The handbook, titled "Deciding What's Next and Who in the World Cares? A Legal Handbook for Hawai?i's' Older Persons, Families and Caregivers," is available free on O`ahu through the Senior Helpline at the City and County of Honolulu's Elderly Affairs Division. Elder Law Program Director, Law School Professor, and co-author James H. Pietsch said that the updated handbook is especially valuable for new caregivers uncertain about where to turn for help. The book also has an extensive resource glossary, including current phone numbers and email addresses. "Folks planning ahead need to have sufficient information about incapacity, disability and, in general, growing old in America, so we wanted to provide some basic legal information and guidance," said Pietsch. This new edition of the award-winning handbook was prepared by Professor Pietsch and Hawai`i Elder Law Program Administrator Lenora H. Lee. Funded in part by the U.S. Administration on Aging, it was printed through a grant from the City & County of Honolulu Elderly Affairs Division. "Many people don't have a good sense about end-of-life issues, wills, powers of attorney, trusts, health-care coverage, elder abuse issues, and even hiring a care-giver," continued Pietsch. "Very often, it's thrust upon them very quickly and they need help in a hurry. We know a lot of people will look to it for crisis intervention."
Source/more: University of Hawaii Manoa
In Gunnarson v. Transamerica Life Insurance Company, a federal district court in the state of Washington issued a November 6, 2014 order remanding the case to state court on diversity grounds, rejecting the company's argument that joinder of an individual sales agent as a defendant in the case was merely a step to prevent the out-of-state corporate entity from removing the case to federal court.
In rejecting the fraudulent joinder argument, the federal district court outlined several pending factual and legal issues between the parties arising from the dispute over long-term care insurance (LTCI) coverage. The issues include:
- whether the defendant agent's relationship with the insurance company, Bankers United (Transamerica's predecessor), was "disclosed" to the purchasers, relevant because under Washington Law, joint and several liability applies to agents of undisclosed principals;
- whether written promotional materials on LTCI provided by Bankers United barred a claim for misrepresentation in light of alleged oral misrepresentations by agent at the time of sale regarding dementia care; and
- whether a claim of misrepresentation, for a policy of LTCI sold 18 years ago, is barred by the statute of limitations, or whether there is an issue of fact about whether and when the purchaser knew or should have discovered that benefits would be paid only for "nursing home" facility care.
In Washington, as in many states, state law changed to expressly require LTCI insurers to cover non-nursing home based care; however, the statutory change apprently occured after the effective date of the policy in question.
The federal court order linked above resulted in remand to the state court for further proceedings under Washington law. (Allegations, of course, are not the equivalent of proof.)
Monday, November 17, 2014
On November 17, 2014, following more than a year of study and consultation, the Pennsylvania Supreme Court's Elder Law Task Force issued a comprehensive (284 pages!) report and recommendations addressing a host of core concerns, including how better to assure that older Pennsylvanians' rights and needs are recognized under the law. With Justice Debra Todd as the chair, the Task Force organized into three committees, focusing on Guardianships and Legal Counsel, Guardianship Monitoring, and Elder Abuse and Neglect. The Task Force included more than 40 individuals from across the state, reflecting backgrounds in private legal practice, legal service organizations, government service agencies, social care organizations, criminal law, banking, and the courts.
From the 130 recommendations, Justice Todd highlighted several "bold" provisions at a press conference including:
- Recommending the state's so-called "Slayer" law be amended to prevent an individual who has been convicted of abusing or neglecting an elder from inheriting from the elder;
- Recommending changes to court rules to mandate training for all guardians, including, but not limited to, family members serving as guardians;
- Recommending adoption of mandatory reporting by financial institutions who witness suspected elder abuse, including financial abuse.
The full report is available on the Pennsylvania Supreme Court website here. As a consequence of the Task Force study, the Supreme Court has approved the creation of an ongoing "Office of Elder Justice in the Courts" to support implementation of recommendations, and has created an "Advisory Council on Elder Justice to the Courts" to be chaired by Pennsylvania Superior Court Judge Paula Francisco Ott.
We're discussing fiduciary duties for trustees in my Wills, Trusts & Estates course and perhaps that is why an article in the November- December issue of the ABA publication, Probate & Property, caught my eye. The cover article is "Painting a Not-So-Pretty Picture: Art as an Alternative Investment in Fiduciary Accounts." Author Michael Duffy, from Goldman Sachs, reports on recent eye-popping headlines for auction sales of artwork. He discusses the sales figures against the background of fiduciaries seeking better-than-conservative returns through use of alternative investments. He outlines the tangible and not-so-tangible variables at the heart of art investment, leading to his thesis:
"It is the position of this author, however, that trustees should not be persuaded by the seemingly lackluster performance of their traditional investments reltative to these sensational headlines and that they should ignore the steady drumbeat of savvy marketers who have a vested interest in convincing them otherwise. There are simply too many considerations when buying and selling art that call into question the prudence of any such endeavor when undertaken by a fiduciary held to the highest investment standards under the law."
It is interesting to note that "absence of federal and state regulation" is one of the reasons for caution cited by this financial services author.
Sunday, November 16, 2014
In the October issue of Bifocal, the ABA Commission on Law and Aging journal, the lead article examine's the history of Maine's Improvident Transfer of Title Act, 33 M.R.S.A. Section 1021 et seq., enacted in 1988 in an effort to better protect victims of undue influence and financial exploitation. As the author, Maine elder law attorney Sally Wagley, explains,
"For a period of time, the [proposed] bill continued to be unpopular with some sectors of the bar. This was ameliorated to some extent by elder law attorneys collaborating with real property lawyers to successfully propose a number of appropriate amendments related to transfers of real estate: (1) a provision which states that nothing in the Act affects the right, title, and interest of good faith purchasers, mortgagees, holders of security interests, or other third parties who obtain an interest in the transferred property for value after its transfer from the elderly dependent person; and (2) provisions affecting title practices, stating that the examiners were not required to inquire as to the age of the transferor and whether he or she had independent representation."
Has the law been useful in Maine? Wagley concludes that in spite of continuing challenges, including the lack of resources to pursue claims and the effect of delays in litigation on elderly victims, the law's presumption of "improvidence" arising from certain "uncounseled" transfers, has had a deterrent effect. She observes, "Knowledgeable attorneys now refer elders to outside counsel before assisting with a gift to family or others with whom the elder has a close relationship."
For more on Maine's law, see "Maine's Improvident Transfers Act: A Unique Approach to Protecting Exploited Elders."
Saturday, November 15, 2014
Consumer Voice has honored NSCLC Attorney Eric Carlson with its Toby S. Edelman Legal Justice Award. The Toby S. Edelman Legal Justice Award recognizes individuals who go to extraordinary lengths to achieve justice for long-term care customers. Eric received the award for his commitment to advocating for the rights of long-term care consumers, and for his deep expertise in the issues surrounding long-term care. Eric will receive the award at Consumer Voice’s 38th Annual Conference at the Hilton Crystal City in Arlington, Virginia on Sunday, November 16.
Please join us in congratulating him!
Friday, November 14, 2014
The Denver Post ran a good article on how to smooth the way for harmonious inheritances by families. About to inherit? Tips for avoiding family fights and tax trouble ran at the end of October, 2014. The story opens with some eye-popping statistics
A 2012 study of 3,200 wealthy families by U.S. Trust showed that 70 percent failed to successfully transfer the family's assets to the succeeding generation. The study found three reasons for this failure: lack of communication among family members; absence of a generally acknowledged purpose for family possessions; and lack of preparation on the part of heirs.
Following the logic of this study--if it can happen to them, it can happen to any of us, the reporter offers that "[l]ack of preparation, operating without guidance or support and faltering in the face of irreversible tax decisions can negatively impact even diminutive estates." The author offers tips to avoid these mishaps: effective communication (call a family meeting and be prepared). As well, those standing to inherit need to educate themselves ("Heirs should take the time to educate themselves on the importance of good tax decisions.") The article gives beneficiaries some insights for them regarding some of the decisions to make and the import of the governing terms of the plans. Remember to tell clients, tax is important!