Thursday, July 30, 2015

California Lawsuit Over Alzhemier's Research Reveals Core University Funding Battle

As detailed in new stories in Southern California media, an important suit by University of California San Diego (UCSD) against University of Southern California (USC) highlights a battle between public and private research enterprises.  Control over millions of dollars is stake for Alzheimer's-related research.  From the San Diego Union-Tribune in a Sunday feature article by Larry Gordon, Gary Robbins and Bradley Fikes:

In the lawsuit, U.C. San Diego alleges that USC, [Alzheimer's researcher Paul] Aisen and eight colleagues conspired to take research data involving more than 1,000 patients and other assets, including an estimated $100 million in federal and private funding to a new Alzheimer's study center in the San Diego Area.  Aisen and USC deny any wrongdoing and contend that UC San Diego is trying to inhibit the freedom to move jobs and is threatening the data's security.

 

A Superior Court judge in San Diego last week denied USC's request to block UC San Diego's access to that data.

 

Richard Seligman, the associate vice president for research administration at Caltech who has more than four decades of experience dealing with grants, said he had never heard of such a lawsuit even though competition for grants and noted faculty has gotten more fierce.

Stakeholders interested in the outcome of the research are reported to be taking note of the suit, with Mary Carrillo, the chief science officer for the Alzheimer's Association quoted as saying the association wants a "speedy resolution" of the lawsuit to keep research going forward. 

Left in an uncomfortable middle ground are the National Institutes of Health and its subsidiary National Institute on Aging, which provides about $11 million per year to the UC Alzheimer's Center.  While confirming that UC San Diego still holds that grant, officials at those agencies said they must approve whether funding like that stays put or moves to another school with a principal investigator like Aisen.

For additional background on the lawsuit, see a related Los Angeles Times piece here.  Reporters from the Los Angeles Times and the San Diego Union-Tribune have collaborated on these stories.

On Friday, July 24, a California trial court ruled that the key research data must be returned to UCSD and therefore does not go "with" the faculty member, Aisen, recruited away from San Diego by USC.  Details here. 

As further evidence of the battle for primacy in southern California medical research, USC and UCSD have each courted the La Jolla Institute for Allergy and Immunology, with University of California-San Diego energing as the winning suitor for "affiliation."  Details here

July 30, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Science, State Cases | Permalink | Comments (0)

Sunday, July 26, 2015

New Book: Dry Bones in the Valley

With just a few weeks left before law school classes start again, I hope your summer writing and research projects are well underway, giving you time to relax a bit with a good beach read.  I've got one to recommend, too.  It's Dry Bones in the Valley by Tom Bouman

The mystery is set in northeastern Pennsylvania, where old time music haunts the air, mixing with the off and on whine of modern day fracking.  One of my favorite authors is Tana French, whose Dublin-based "police procedural mysteries" are an excuse for deep exploration of the human condition. Tom's debut novel is in that tradition, even bringing to bear an Irish spirit or two. I like it best when I can see, hear and "feel" the settings in a novel, as in this passage, where bone-tired Henry Farrell struggles to find balance while carrying out his official duties as the rural township's investigator:

I knew I wouldn't sleep and likely shouldn't with my head the way it was.  Went back inside, got out my fiddle, and rosined the bow....

 

I needed something I could rip into. "Bonaparte's Retreat" found me. . . . By the time I got to the modified part B Copland had made so famous, I had to stop and breathe.  I thought of George Ellis.  Got a piece of paper and curled it into a funnel, poured the rest of my whiskey back into the bottle, and went to bed, but never to sleep.

 

It's not hard to get up if you never go down.  Dawn brought a hint that the weather might get clearer.  With enough pain pills, my head would too.  The eastern sky was bright as a wild rose as I walked stiff-backed from my woodpile with an armload for the stove.  The snow had melted, and my boots left prints on a field that, newly bared, crackled underfoot and shimmered silver; it was a beauty that would not last another ten minutes, so I dropped the firewood and stood and watched the night's frost dissolve into morning mist.  Somewhere in the tree line, a bluebird burbled a tune, but I couldn't pick him out.  It was the first songbird I'd heard that spring....

Strong writing, yes? But, how does this particular book relate to the Elder Law Prof Blog?  Well, as you may have come to expect from me by now, one reason is a central character in the mystery, ol' Aub, may -- or may not -- be too old to remember the truths of what happened.

Another reason is the author is a current Penn State Dickinson law student, and his new book has already earned a 2015 Edgar Award for best first novel and a 2015 Los Angeles Times Book Award for best mystery/thriller. 

Congratulations, Tom! 

July 26, 2015 in Books, Cognitive Impairment, Crimes | Permalink | Comments (0)

Friday, July 24, 2015

Huguette Clark Family Foundation Announces Grant for Study of Elder Exploitation

From the ABA Bifocal, details about the 2015 award of a $50k grant by the Huguette Clark Family Fund for Protection of Elders to develop model civil statutes covering elder financial exploitation:

The project will be managed by the National Center for Victims of Crime under the guidance of Executive Director Mai Fernandez. Lori Stiegel of the American Bar Association Commission on Law and Aging will serve as a consultant on the project. Ms. Stiegel, a senior attorney, joined the ABA Commission in 1989 and has developed and directed its work on elder abuse.

 

“Creating a template of civil statutory provisions for elder financial exploitation is a short- term, innovative project that can have a lasting impact,” Ms. Fernandez said. “It can give attorneys an effective tool for pursuing civil cases and provide victims with the greatest chance to recover stolen assets. We welcome the support of the Huguette Clark Family Fund for Protection of Elders on this important project.”

The news release explains the donor-advised fund was established by the family in 2013 to honor the late Huguette Clark, "who was victimized by her caregivers for more than two decades."  Previous recipients of grants from the Huguette Clark Fund include San Diego State University and the Philadelphia Corporation on Aging.

July 24, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards | Permalink | Comments (0)

From SSRN: "Abuse of Elders with Mental Illness" by Prof. James T.R. Jones

Professor James T.R. Jones continues to bring his unique and important perspective to bear in his latest work available on SSRN.  In Abuse of Elders with Mental Illness: Generally an International and Specifically a United States Perspective, he highlights the ways in which various types of mental illness may contribute to unique vulnerability to abuse as the individuals age.  This is a chapter from a new book, International and Comparative Law on the Rights of Older Persons edited by Ralph Ruebner, Teresa Do and Amy Taylor published by Vandeplas Publishing in May 2015. From the SSRN abstract on Professor Jones' chapter:

Elder abuse is a major international problem, and scandal.  It is so important that both the United Nations (“UN”) and the World Health Organization (“WHO”) have focused on it.  Elder abuse occurs in a variety of ways.  It can be physical abuse due to either active injury or passive neglect.  It can be psychological abuse through fear and intimidation.  It can be financial abuse due to theft or fraud.  Abusers can be strangers; healthcare workers, too often in nursing home settings; and spouses, partners, children, grandchildren, or other relatives.  Abusers may be motivated by cruelty, laziness, or greed for quick profit or a premature inheritance.



While all elders can be abused, those with mental illness are particularly vulnerable.  This group can encompass both those with longstanding mental illnesses such as major depression, schizophrenia, and bipolar disorder and those psychiatrically debilitated by age, notably including those who suffer from Alzheimer’s disease or other forms of dementia.  Victims may be living in private residential settings both alone and with family or friends or in institutions such as nursing homes.



This chapter gives a brief overview of elder abuse and then focuses on the victim population of those vulnerable because of mental illness and how they face abuse.  It discusses possible ways to reduce the incidence of abuse of those with psychiatric conditions including, among other things, mandatory abuse reporting and enhanced focus on the problem by government, in particular law enforcement, authorities and primary care and mental health care providers.

The book is another important product from John Marshall Law's summer 2014 forum examining the rights of older persons, leading to the summer' "Chicago Declaration on the Rights of Older Persons" presented before the United Nations' working session on aging.   

 

July 24, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International | Permalink | Comments (0)

Wednesday, July 22, 2015

Comparative Law: Practice Guide for Representing Vulnerable Clients in England & Wales

Law Society England Wales

The Law Society of England and Wales recently issued a "Practice Note" for lawyers (or rather, "solicitors") on representing vulnerable clients, including but not limited to clients with dementia.  The guideline reflects research that demonstrated "solicitors need to adapt their practices to identify and meet the needs of vulnerable clients." The guide recognizes that "vulnerable" clients may include a range of persons, and may involve physical or mental capacity issues of varying degrees.

The guide warns that failure to "meet the needs of a vulnerable client" may trigger:

  • A discrimination claim or a claim for a failure to make reasonable adjustments under the Equality Act 2010, which could result in sanctions including damages.
  • A claim for damages or compensation against you or your firm if you act on the instructions of a client lacking capacity to make relevant decisions, having failed to satisfy yourself as to the client's capacity to instruct you or failing to document your assessment of the client's capacity, leaving the validity of the transaction open to challenge.
  • A complaint against you to the Legal Ombudsman, which could result in your name being published and/or you having to pay financial compensation. The ombudsman will refer complaints about discrimination to the SRA.
  • Reputational risk - your practice's reputation is inextricably linked to the way in which you treat your clients. Conversely, a practice with an inclusive ethos will not only attract a wider group of clients but also a more diverse workforce bringing benefits to the business.

The guide has a detailed discussion of mental capacity issues, including the attorney's need to consider the following four factors:

Continue reading

July 22, 2015 in Cognitive Impairment, Discrimination, Ethical Issues, International, Legal Practice/Practice Management | Permalink | Comments (0)

Tuesday, July 21, 2015

Book: One-Stop Guide to Dementia

A new book from the U.K. by June Andrews is titled Dementia: The One-Stop Guide, and it offers practical advice for families, professionals, and people living with dementia and Alzheimer's Disease. The Table of Contents suggests the scope:

  1. What is dementia?
  2. Getting a diagnosis
  3. Adjusting to the news: for carers
  4. Adjusting to the news: for people with dementia
  5. What are friends for?
  6. Managing care at home
  7. Disturbing Behaviours
  8. Your dementia-friendly home
  9. What you should expect from the social care system
  10. What you should expect from the NHS
  11. The dangers of a hospital admission and how to avoid them
  12. Some important legal issues
  13. What to look for in a care home
  14. Advice on complaints and sample letter

I wonder how Chapters  9 and 10 would be written from a U.S. perspective?

 

July 21, 2015 in Books, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, International | Permalink | Comments (0)

Monday, July 20, 2015

Register for Webinar: Living Alone with Dementia

The Administration for Community Living (ACL)/Administration on Aging (AoA) announced an upcoming webinar, People Who Live Alone with Dementia. The webinar is offered by the National Alzheimer’s and Dementia Resource Center (formerly the ADSSP National Resource Center). The website describes this July 30th webinar as follows:

 The webinar will focus on the issue of Persons Living Alone with Dementia. Participants will learn about prevalence and characteristics of people with dementia who live alone, signs of self-neglect and intervention strategies, and the experiences of people with dementia who live alone. Dr. Penny Harris and Dr. Michael Lepore will present at this webinar.

The webinar starts at 3 p.m. edt and lasts for one hour. To register for this free webinar, click here.

July 20, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Housing, Programs/CLEs, Webinars | Permalink | Comments (0)

Sexuality and Incapacity: A Forthcoming Article

Professor Alexander  Boni-Saenz at Chicago-Kent College of Law recently emailed me about his forthcoming article, Sexuality and Incapacity.  The article is posted to his SSRN page and will be published in volume 76 of the Ohio State Law Journal.   The abstract explains

Sexual incapacity doctrines are perhaps the most important form of sexual regulation, as they control access to sex by designating who is legally capable of consenting to sex. Most states have adopted sexual incapacity tests for adults that focus narrowly on assessing an individual’s cognitive abilities.  These tests serve an important protective function for people with temporary cognitive impairments, such as those rendered incapable due to alcohol or drugs.  However, this comes at the cost of barring many people with persistent cognitive impairments, such as Down Syndrome or Alzheimer’s Disease, from any sexual activity.  This is despite the fact that they still have sexual desires and are able to engage in sexual decision-making with support from caregiving networks.  The central claim of this Article is that sexual incapacity doctrine should grant legal capacity to adults with persistent cognitive impairments if they are embedded in an adequate decision-making support network.  In other words, the right to sexual expression should not be withheld due to cognitive impairment alone.  To justify this claim, the Article provides a theory of sexual incapacity doctrine that is grounded in the practice of supported decision-making and the normative foundations of sexual capability and relational autonomy.  The Article then sets forth a novel test for sexual consent capacity: cognition-plus.  This test focuses on gauging the capacity for volition, assessing the mental capacity of the individual to understand the nature and consequences of the sexual decision, and evaluating the adequacy of the decision-making support system using principles of fiduciary law.  The Article concludes by applying the cognition-plus test to the case of older adults with dementia, a group of increasing importance with the aging of the population.

A draft of the paper is available as a pdf from the SSRN page of  Professor Boni-Saenz.  Thanks to Professor Boni-Saenz for letting me know about his article!

July 20, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s | Permalink | Comments (0)

Thursday, July 16, 2015

Highlights from Upcoming Pennsylvania Elder Law Institute on July 23 & 24

Probably the best bang for your CLE buck in Pennsylvania comes from the two-day Elder Law Institute hosted each summer by the Pennsylvania Bar Institute. This year the 18th annual event is on July 23 & 24 in Harrisburg. 

Highlights include:

  • "The Year in Review" with attorneys Marielle Hazen and Robert Clofine sharing duties to report on key legislative, regulatory and judicial developments from the last 12 months;
  • How to "maximize" eligibility for home and community based services (Steve Feldman and Pam Walz);
  • Cross disciplinary discussions of end-of-life care with medical professionals and hospice providers;
  • LTC "provider" perspectives (Kimber Latsha and Jacqueline Shafer);
  • Latest on proposals to change Veterans' Pension Benefits (Dennis Pappas);
  • Implementation of the Pa Supreme Court's Elder Law Task Force Recommendations (Judges Lois Murphy, Paula Ott, Sheila Woods-Skipper & Christin Hamel);
  • A closing session opportunity, "Let's Ask the Department of Human Services Counsel" (with Addie Abelson, Mike Newell & Lesley Oakes)

There is still time to registration (you can attend one or both days; lunches are included and there is a reception the first evening).  

I think this is the first year I have missed this key opportunity for networking and updates; but I'm sending my research assistant!    

July 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)

Tuesday, July 14, 2015

Podcast: Memory and Forgetting

Everyone has instances where inability to recall a name or face occurs and sometimes frightens us.  But, if you have a loved one with Alzheimer's, you may have experienced what I would call "advanced level" frustrations about memory.  Why does he (or she) remember one thing, but not another?  (For a long time, my father would spontaneously give answers to questions on Jeopardy, on topics he could no longer discuss 0r understand in conversation. Our family puzzled about whether there was a way to help him access positive memories, without putting pressure on him, in the same way Alex Trebek seemed to accomplish!) Are memories coded by importance? These kinds of questions guide an interesting discussion on a recent Radiolab episode on Memory and Forgetting, now available on podcast.

The experts interviewed, including the always interesting Dr. Elizabeth Loftus at University of California Irvine, and the studies described on this episode also document many reasons to be cautious about the significance of eye witness testimony in court cases.  Lawyers intimately rely on, or are confounded by, the ability to remember.    

July 14, 2015 in Cognitive Impairment, Dementia/Alzheimer’s | Permalink | Comments (0)

Monday, July 13, 2015

New Book: Cognitive Aging

The Institute of Medicine has a new book forthcoming from the National Academies Press.  Cognitive Aging: Progress in Understanding and Opportunities for Action (2015) is available now in prepublication for purchase (or download as a pdf for free).  The final version can also be ordered now.  The website offers this description of the book

For most Americans, staying "mentally sharp" as they age is a very high priority. Declines in memory and decision-making abilities may trigger fears of Alzheimer's disease or other neurodegenerative diseases. However, cognitive aging is a natural process that can have both positive and negative effects on cognitive function in older adults - effects that vary widely among individuals. At this point in time, when the older population is rapidly growing in the United States and across the globe, it is important to examine what is known about cognitive aging and to identify and promote actions that individuals, organizations, communities, and society can take to help older adults maintain and improve their cognitive health.

Cognitive Aging assesses the public health dimensions of cognitive aging with an emphasis on definitions and terminology, epidemiology and surveillance, prevention and intervention, education of health professionals, and public awareness and education. This report makes specific recommendations for individuals to reduce the risks of cognitive decline with aging. Aging is inevitable, but there are actions that can be taken by individuals, families, communities, and society that may help to prevent or ameliorate the impact of aging on the brain, understand more about its impact, and help older adults live more fully and independent lives. Cognitive aging is not just an individual or a family or a health care system challenge. It is an issue that affects the fabric of society and requires actions by many and varied stakeholders. Cognitive Aging offers clear steps that individuals, families, communities, health care providers and systems, financial organizations, community groups, public health agencies, and others can take to promote cognitive health and to help older adults live fuller and more independent lives. Ultimately, this report calls for a societal commitment to cognitive aging as a public health issue that requires prompt action across many sectors.

July 13, 2015 in Cognitive Impairment | Permalink | Comments (0)

Thursday, July 9, 2015

If You Can't Beat Alzhemier's, Can You at Least Delay It?

In Alzheimer's Spurs the Fearful to Change Their Lives to Delay It, Washington Post writer Fredrick Kunklen details various ways that individuals and groups are working to buy more time from genetic profiles or family histories that suggest a greater likelihood of dementia: 

When Jamie Tyrone found out that she carries a gene that gives her a 91 percent chance of developing Alzheimer’s disease beginning around age 65, she sank into a depression so deep that at times she wanted to end her life.

 

Then she decided to fight back. She exercised. She changed her diet. She began taking nutritional supplements, including fish oil, vitamin D, vitamin B12, curcumin, turmeric and an antioxidant called CoQ10. She started meditating and working mind-bending puzzles, such as Brain HQ. She joined a health clinic whose regimen is shaped by a UCLA medical study on lifestyle changes that can reverse memory loss in people with symptoms of dementia. She started a nonprofit group, Beating Alzheimer’s By Embracing Science (BABES), to raise money and awareness about dementia.

 

“I found my voice,” said Tyrone, 54, a registered nurse who lives in San Diego.

Here is the link to "BABES" for those who want to read more about that group.

July 9, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Science, Statistics | Permalink | Comments (0)

Tuesday, July 7, 2015

NYT: Starting Your Own "Conversation Project" With Family

Many have written with great sensitivity and candor about attending the death of a loved one, including a parent.  Ellen Goodman had a lovely op-ed recently, How to Talk About Dying, in the New York Times.  But more important even than her personal journey with her own parents, was how she and others have used their mutual  experiences and concerns to start The Conversation Project. 

As background, Ms. Goodman writes:   

When my mother died from heart failure and dementia, I began to talk with others. It was extraordinary. Everyone seemed to have a piercing memory of a good death or a hard death. Some of these stories had been kept below the surface for decades, and yet were as deep and vivid as if they’d just happened.

 

Too many people we love had not died in the way they would choose. Too many survivors were left feeling depressed, guilty, uncertain whether they’d done the right thing.

With these experiences in common, Ms. Goodman and others established a nonprofit and a website, and they offer a "Conversation Starter Kit" for how to begin -- and continue -- thinking about what you want and how to share personal values and choices with family members.  The kit is free, downloadable, and you can take notes and tailor the plan easily. 

Many of my own friends and working colleagues have stories to share about "end of life" decisions with their parents. (Perhaps because I teach and write about aging, I get more than the average number of opportunities to hear from a lot of people about how well things are going on the homefront....) It seems like a "conversation about the conversation," shared among friendship groups, or workout-groups, or workplace groups, might facilitate using the starter kit and working on the more personal family conversations. 

Thanks to Professor Laurel Terry for sharing these links! 

July 7, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues | Permalink | Comments (0)

Friday, July 3, 2015

Pennsylvania AG Files Consumer Protection Suit Against Golden Living Nursing Homes

On July 1, 2015, Pennsylvania's Attorney General filed a complaint in the Commonwealth Court against Golden Gate National Senior Care LLC (GGNSC) which manages and operates Golden Living Centers nationally.  The AG's suit focuses on 14 facilities in Pennsylvania. From the AG's press statement:

The legal action asserts Golden Living violated the Unfair Trade Practices and Consumer Protection Law by deceiving consumers through its marketing practices.

  

The company advertised it would keep its residents clean and comfortable while providing food and water at any time. But its facilities were understaffed, leaving residents thirsty, hungry, dirty, unkempt and sometimes unable to summon anyone to help meet their most basic needs, such as going to the bathroom, the legal action asserts.   

According to the AG's office, evidence comes from residents' family members and former employees of Golden Living, including certified nursing assistants.  The allegations focus on an alleged "widespread pattern of understaffing and omitted care."

Further, the AG makes the following specific allegations:  

  • Continent residents left in diapers because they were unable to obtain assistance going to the bathroom.    
  • Incontinent residents left in soiled diapers, in their own feces or urine, for extended periods of time.    
  • Residents at risk for bedsores from not being turned every two hours as required.   
  • Residents not receiving range of motion exercises.    
  • Residents not receiving showers or other hygiene services as required.     
  • Residents being woken at 5 a.m. or earlier to be washed and dressed for the day.    
  • Residents not being timely dressed in order to attend their meals.    
  • Residents not being escorted to the dining hall and sometimes missing meals entirely.   
  • Long waits for responses to call bells or no responses at all.   
  • Staff, under the direction of management or fear of management, falsifying records to indicate residents received services when in fact they did not.  
  • Improved staffing when state inspections occurred, leading to deceit about the true conditions at the facility.     
  • The investigation also included a review of staffing levels self-reported by Golden Living facilities and deficiencies cited in surveys conducted by the state Department of Health. 

According to one news source, Golden Living responded to the suit with a statement expressing the company's confidence that the "claims made by the Attorney General are baseless and wholly without merit," and further alleging the suit is the "unfortunate result of Kathleen Kane's inappropriate and questionable relationship with a Washington D.C.-based plaintiff's firm that preys on legitimate businesses and is paid by contingency fees."  (For those of you not privy to the local news on Pennsylvania politics generally and AG Kathleen Kane specifically, I think it is fair to say that the press frequently refers to her as the "embattled AG."  She first took office in January 2013).

The Pennsylvania AG's suit comes on the heels of a broader report released in June by Community Legal Services of Philadelphia, asserting that from 2012 through 2014 the Pennsylvania Department of Health under former Governor Corbett's administration, failed significantly to conduct proper investigation of complaints about a large number of nursing homes (not limited to Golden Living) and failed to enforce existing regulations designed to protect residents. 

For Golden Living, allegations are not limited to Pennsylvania. For example, in June 2015, claims about chronic understaffing of 12 Golden Living Center nursing homes in Arkansas were certified to be litigated as a class action. 

Hat tip to Douglas Roeder, Esq., for bringing the latest Pennsylvania AG's suit to my attention. Last month I reported on the A.G.'s suit for unfair trade practices filed against a law firm that was alleged to be improperly using Pennsylvania's filial support law as a basis for collection demands against family members of the debtor. 

July 3, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, June 29, 2015

California Court Says Law Permitting Nursing Homes to "Make Routine Decisions for Incapacitated Residents" Is Unconstitutional

On June 24, 2015, the Superior Court for the State of California, County of Alameda, Judge Evelio Grillo presiding, issued a mandamus in a court suit filed in 2013 by California Advocates for Nursing Home Reform (CANHR).  Lots of interesting and important issues here, including:

  • the finding that CANHR, a nonprofit agency "dedicated to improving the quality of care for California's nursing home residents," has standing to bring a citizen action to challenge the reliance by nursing homes on California law to permit them to make decisions "for" incapacitated residents who do not have court appointed agents, family or other surrogate decision makers;
  • the conclusion that the California law in question, Calif. Health & Safety Code Section 1418.8,  is unconstitutional, both facially and as applied;
  • the recognition that the mandate is necessary, even though it will require major changes in how care facilities operate in the daily care of patients.

The 44 page opinion concludes:

"The court is aware that this statute was the Legislature's attempt to deal with a very difficult and significant problem of how to provide timely and effective medical treatment to patients in skilled nursing facilities without delays that were often happening when a petition had to be filed in probate court.  The court acknowledges that this order will likely create problems in how many skilled nursing facilities currently operate....  The court has considered this burden and weighed it against the due process concerns, and finds that the due process rights of these patients is more compelling.  The stakes are simply too high to hold otherwise. Any error in these situations has the possibility of depriving a patient of his or her right to make medical decisions about his or her own life that may result in significant consequences, including death.  A patient may not only lose the ability to make his or her health decisions, but also to manage his or her own finances, determine his or her visitors, and the ability to leave the facility."  

Congratulations to the hard-working advocates at CANHR, and particularly to Golden Gate Law Professor Mort P. Cohen,  who brought the action on behalf of CNHR and several nursing home residents.  Here is a link to the full opinion in CANHR v. Chapman, Case No. RG13700100. Here is a press release from CANHR.

June 29, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink

Friday, June 26, 2015

Florida Appellate Court Reverses Conviction on Financial Exploitation of Elder

On June 24, 2015, a Florida intermediate appellate court reversed the 2013 conviction of Tyrone Javallena for "financial exploitation of an elderly person or disabled adult," ruling that there was no evidence the defendant in question, who was the husband of a financial advisor for a 94-year-old woman who made late-in-life changes to her estate plan benefitting the couple, had the requisite knowledge of any plan to exploit.  In Javallena v. State, the 4th DCA ruled:

The [elderly woman's estate] documents were amended so that, ultimately, the defendant and his wife were residual beneficiaries of the estate. The defendant and his wife served as witnesses to Teris' execution of some of the amendments, and at some point in time, his wife became aware of the substance of the amendments. However, there was no evidence that the defendant, who also chauffeured Teris on errands, had any knowledge of a plan to exploit the victim. As for Teris' mental capacity at the time she executed the amendments to her estate documents, there was conflicting evidence before the jury.

 

On appeal, the defendant argues that his conviction under a principals theory constituted error as there was no evidence he participated in the exploitation. We agree.

 

"To convict under a principals theory, the State is required to prove that the defendant had a conscious intent that the criminal act be done and . . . the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime."Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012) (citation and internal quotation marks omitted).

The original conviction of Javallena and his wife in 2013 was high profile news, in part because of the estate in question -- referred to in the appellate opinion as "vast" -- was reported to be $10 million.  No word on the status of any appeal on the separate conviction of Javallena's wife. 

June 26, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, June 24, 2015

Husband's "Constant Kissing" of Wife in Care Home Leads to Court

One of our readers in England sent an item from The Independent, about a dispute between a husband and a publically-operated care home where his wife lives:

An 87-year-old man is taking Derby City Council to court after being told he must stop "constantly" kissing his wife, who has dementia, in order to continue visiting. Thomas Middleton said he has "lost the will to live" after care home staff told him to stop "constantly" kissing his wife Joan, 84, when he visits.

 

Mr Middleton has been made to sign an eight-point agreement to continue seeing her, which says he can only kiss his wife of 67 years once on arrival and once on departure. Mr Middleton’s daily two-hour visits are supervised by staff after a court in 2012 ruled that his wife lacked the capacity to make decisions on her needs.

 

The rules came after a review claimed he was "constantly kissing, pulling and poking his wife, which she protests about." The review also said Mr Middleton became "nastier and nastier" if she did not respond to him. Care home staff reported feeling intimidated by Mr Middleton, while there were also concerns that he would not return his wife if she were allowed a visit home.

 

Mr Middleton disputes this criticism as inaccurate: "I’ve done nothing to my wife. I love her so much. I don’t want to leave her."

In sending us this piece, our reader commented about the troubling fact that this matter has degenerated to the point where parties are going to court, noting the similarity in theme with the Rayhons case in Iowa. 

June 24, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, International | Permalink | Comments (1)

Friday, June 19, 2015

Symposium Issue Responds to Hartog's "Someday All This Will Be Yours"

The Spring 2015 issue of the ABA publication Law & Social Inquiry has a great symposium review section offering a broad array of essays, commenting on Hendrik Hartog's important book Someday All this Will Be Yours: A History of Inheritance and Old Age (Harvard University Press: 2012). 

The impressive list of contributors includes:

Plus, historian Hendrik Hartog provides his own commentary and response! 

Suffice it to say if you appreciated Hartog's book, you will thoroughly enjoy his additional musings on how he came to write it and what it might mean for the future. 

The comments are engaging and relatively brief -- but should still keep you busy on a summer weekend.

June 19, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Wednesday, June 17, 2015

California Clarifies Nature of "Takings" Actionable Under Elder Abuse Law

In 2014, the California Court of Appeal issued a decision recognizing broad application of California's Elder Abuse laws to contract-related disputes.  In Bounds v. Superior Court, the appellate court set the stage for the important ruling:

Bounds, an 88–year–old widow allegedly suffering from Alzheimer's disease, alleges in her cross-complaint that for approximately six months, Real Parties in Interest Gerry Mayer (Mayer), Joseph Sojka (Sojka), and their associated businesses entities (KMA Group, LLC, Kopykake Enterprises, and Sojka–Nikkel Commercial Realty Group) engaged in abusive conduct, resulting in her signing, among other documents, escrow instructions authorizing the sale of real property owned by the Trust. Because escrow was cancelled, the Trust retains title to, and Bounds remains in possession of, the property. However, petitioners allege that the existence of the escrow instructions significantly impairs their right to sell the property at fair market value or to use it to secure a loan on favorable terms.
 
These alleged facts raise an issue of first impression: whether to allege a “taking” of a property right under the [California Elder Abuse] Act, it is sufficient to plead that an elder has entered into an unconsummated agreement which, in effect, significantly impairs the value of the elder's property, or whether the Act requires that the agreement have been performed and title have been conveyed.....
 
As explained more fully below, we conclude that because property rights include, among other things, the right to use and sell property ... petitioners' allegations that Bounds entered into an executor agreement which significantly impaired the value of the property owned by the Trust adequately pleads a "taking" -- that is, adequately pleads that Bounds has been "deprived of [a] property right .... by means of an agreement," within the meaning of [California law] section 15610.30(c). 
 
Therefore the appellate court permitted the case to go forward against the alleged abusers, who were alleged to have frightened the aging Bounds into selling property at a bargain price.
 
More recently, Sara Colon, one of the lawyers represented the elderly Ms. Bounds, and Catherine Eschbach, a law student at Pepperdine Law School, collaborated on an article for the Los Angeles Lawyer magazine, published in April 2015.  In Out of Bounds, they explain the significance of the Bounds case, including its application in the context of predatory lending schemes. 

June 17, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, June 10, 2015

A Time for Heart to Heart Conversations With Family and Caregivers

An essay I read when it was first published in the New York Times Magazine in 2010, "What Broke My Father's Heart," has stayed with me.  It is the deeply personal tale of a journalist-daughter's observation of her father's last years, as his pacemaker kept his heart pumping while dementia destroyed his quality of life.  The daughter, Katy Butler, later turned the story, supplemented by impressive research, into a book, Knocking on Heaven's Door: The Path to a Better Way of Death. 

In the essay, one of the key moments in the chronology was when Katy's father faced the prospect of surgery for a painful inguinal hernia, which doctors were not willing to perform unless his weak heart was first aided by implementation of a pacemaker.  Earlier, his father, while still competent, had rejected a pacemaker, but the decision was now in the hands of his wife because of his dementia:

"When [Dr.] Rogan suggested the pacemaker for the second time, my father was too stroke-damaged to discuss, and perhaps even to weigh, his trade­offs. The decision fell to my mother — anxious to relieve my father’s pain, exhausted with caregiving, deferential to doctors and no expert on high-tech medicine. She said yes. One of the most important medical decisions of my father’s life was over in minutes."

Ms. Butler makes it pretty clear that if the decision had been hers alone, she would not have made the same choice as her mother.  Additional research demonstrates the medical, moral and legal dilemmas faced by all parties in considering the use of pacemakers for the elderly.  For example, in "Pacing Extremely Old Patients: Who decides -- the doctor, the patient, or the relatives?," two physicians in the U.K. report on a three-case study where individuals, family members and doctors were not in agreement about implantation of pacemakers for patients aged 101, 90, and 87.

Continue reading

June 10, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Medicare | Permalink | Comments (2)