Tuesday, November 18, 2014
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.)
Thursday, November 13, 2014
With the most recent news about actor Robin Williams as possibly having Lewy Body Dementia, readers might find free webinar materials from Morningside Ministries useful, at their website mm.learn.org. Look for the "In the News" link -- the materials strike me as objective and thoughtful.
Friday, November 7, 2014
Two challenging topics for many families: how to handle death and intimacy for aging family members. We're probably doing better coming to grips with the need to address death than intimacy. When long-term care is required, involving third-parties, the question of sexual behavior can become more important.
Along that line, Bryan Gruley at Bloomberg News wrote a thoughtful series addressing the social, legal, moral -- and just plain tough -- questions connected to sexual behavior that can arise with older persons in congregate settings.
Bloomberg Visual Data: Elder Care Sex Survey Finds Caregiviers Seeking More Training
The Bloomberg series quotes Albany Law School Professor Evelyn Tenenbaum, a civil rights, health care, and bioethics scholar, citing her article "To Be or to Exist: Standards for Deciding Whether Dementia Patients in Nursing Homes Should Engage in Intimacy, Sex and Adultery" from the Indiana Law Review.
November 7, 2014 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 5, 2014
Kurzweil Accelerating Intelligence (Kurzweil AI) reported in their October 21, 2014 news a story on new research, Hidden brain signatures’ of consciousness in vegetative state patients discovered. Here’s the opening paragraph “Scientists in Cambridge, England have found hidden signatures in the brains of people in a vegetative state that point to networks that could support consciousness — even when a patient appears to be unconscious and unresponsive. The study could help doctors identify patients who are aware despite being unable to communicate.”
The Kurzweil AI story includes the article’s abstract a segment of which we’ve included here
Going further, we found that metrics of alpha network efficiency also correlated with the degree of behavioural awareness. Intriguingly, some patients in behaviourally unresponsive vegetative states who demonstrated evidence of covert awareness with functional neuroimaging stood out from this trend: they had alpha networks that were remarkably well preserved and similar to those observed in the controls. Taken together, our findings inform current understanding of disorders of consciousness by highlighting the distinctive brain networks that characterise them. In the significant minority of vegetative patients who follow commands in neuroimaging tests, they point to putative network mechanisms that could support cognitive function and consciousness despite profound behavioural impairment.
Consider how these findings may be introduced in litigation where the patient is diagnosed as PVS, with one party seeking to have life-prolonging procedures removed and another objecting and seeking this test for the patient. Should we take this and other medical advances into consideration when drafting advance directives, especially instructions to our health care agents?
Tuesday, November 4, 2014
Yesterday, Tom Magliozzi, half of the Click and Clack duo of "car experts" on the long-running NPR radio show, passed away. I'm a fan of brothers Tom and Ray and their eclectic advice. I have a particular affection for Tommy's rowdy laugh -- that would start me grinning before I even heard the joke. It was sad news, especially as each of the stories I saw carried the report that his death was "from complications of Alzheimer's Disease."
Those five words imply so much, including the sadness, confusion and difficulties that may have attended the two years after he and his brother stopped broadcasting the weekly show. But, I also cannot help thinking that here was a man with "a full life, well lived." And one who's laugh will be missed by many.
Sunday, November 2, 2014
Start your week with a laugh, or at least a smile.
One of the many blogs I read, GeriPal, ran an excellent parody for Halloween that had me howling....with laughter at the author's cleverness. Addressing Unmet Palliative and Geriatric Needs of Zombies is a hysterical must-read. The title gives you an excellent preview. And don't ignore the links in the article to the other sources, especially the one regarding the speed with which the Grim Reaper walks (at least the section on strengths and limitations).
Thursday, October 30, 2014
Our friends Stetson Law Professor Roberta Flowers and Pennsylvania Elder Law Attorney Amos Goodall have joined forces in writing a very interesting article, "In Fear of Suits: The Attorney's Role in Financial Exploitation" published in the Fall 2014 issue of the NAELA Journal.
To examine the potential for attorneys to facilitate or hinder financial abuse of elders, they take a close look at key players in the Brooke Astor case. For example, they discuss the elderly philanthropist's purported execution of three codicils, pointing out that each document was "drafted by superbly educated, well-respected and even renowned 'establishment' lawyers." The authors ask whether more could have been done by these lawyers to protect Astor from the machinations of two other individuals, her son "Marshall" and Attorney Morrissey, both of whom were eventually convicted, but only after Mrs. Astor's death.
To provide insight into this key question, Flowers and Goodall take a step back from specific facts of the Astor case, to discuss key ABA Model Rules, including Rule 1.2 (Protection of Client's Objectives), Rule 1.7 (Protecting Clients from Divided Loyalties), Rule 1.14 (Protecting Clients with Diminished Capacity) and Rule 4.2 (Protecting Clients Who Are Represented from Overreaching).
I can see this article providing a great platform for discussion, both among law students and practicing attorneys.
Tuesday, October 28, 2014
As anyone knows who has faced a diagnosis of Alzheimer's or other dementia in their own family, it can be devastating news. I remember asking the doctor whether there was some "behavioral" training or program -- in addition to or as a substitute for medication -- that might help my own family member preserve, if not improve, existing cognition. The answer at that time was a slow, sad shake of the doctor's head.
That response is why many will be pleased to hear that the Alzheimer's Association supports research into non-drug therapies. The latest grant funding for four projects, announced in Chicago last week, includes:
- A study of the use of "exercise or cognitive stimulation, or a combination of the two, for lowering the risk of cognitive decline and dementia in older adults." $247k to Dr. Amy Jack at the University of California, San Diego.
- Evaluation of the impact of aerobic interval training regimens on the brain and thinking abilities of people with type 2 diabetes. $250k to Dr. Gail Musen at Joslin Diabetes Center in Boston.
- A study of "Skill-Building Through Task-Oriented Motor Practice (STOMP) for improving daily life skills and delaying decline in people" with dementia. "STOMP utilizes repetitive therapy and a learning technique that focuses on immediate correct steps instead of trial-and-error to strengthen and preserve memory for completing daily living tasks." $100k to Dr. Carrie Ciro at University of Oklahoma Health Sciences.
For more information on Alzheimer's Association research and results, see here and here. I can say that that I'm glad to see studies of regular movement or exercise. In my own family, I saw some stabilization of cognition coincide with greater activity. Being on one level -- with easy access to the outdoors and lots of room and safe areas to walk -- has proven to be very helpful for my father.
Wednesday, October 22, 2014
We posted back in August about Glen Campbell's status with Alzheimer's disease. A recent story on NBC News, covering his status reported that he still plays guitar and his label released his last song, I’m Not Gonna Miss You.” .
His final tour was filmed and a documentary, Glen Campbell: I'll Be Me, will be released October 24th, 2014. The article explains that he was in stage 2 when the tour started and stage 4 when it ended. Throughout, though, he played a mean guitar.
The NBC story includes three video clips, one which shows his last recording session.
Thanks to law student Erica Munz for sending me the link to the story. Calendar October 24, 2014 and go see this movie.
Sunday, October 12, 2014
NPR's Weekend Edition Sunday highlighted a new study that suggests people with Alzheimer's may hold on to happy or sad emotions beyond the event that triggers those feelings. Here's the link to the audio.
The University of Iowa researchers published their article in the September 2014 issue of the journal Cognitive and Behavioral Neurology, and it follows preliminary studies they published in 2010. The study used 20 minute movie clips with "happy" or "sad" themes with test groups. As summarized by Iowa Now:
About five minutes after watching the movies, the researchers gave participants a memory test to see if they could recall what they had just seen. As expected, the patients with Alzheimer’s disease retained significantly less information about both the sad and happy films than the healthy people. In fact, four patients were unable to recall any factual information about the films, and one patient didn’t even remember watching any movies.
Before and after seeing the films, participants answered questions to gauge their feelings. Patients with Alzheimer’s disease reported elevated levels of either sadness or happiness for up to 30 minutes after viewing the films despite having little or no recollection of the movies.
Quite strikingly, the less the patients remembered about the films, the longer their sadness lasted. While sadness tended to last a little longer than happiness, both emotions far outlasted the memory of the films.
The studies suggest the importance of positive stimuli from caregivers. The researchers emphasized that their findings "should empower caregivers by showing them that their actions toward patients really do matter." Researcher Edmarie Guzman-Velez said "Frequent visits and social interactions, exercise, music, dance, jokes, and serving patients their favorite foods are all simple things that can have a lasting emotional impact on a patient's quality of life and subjective well-being."
Friday, October 10, 2014
Although some think substance abuse is a problem for the young, a recent story in the New York Times dispels that thought. More Older Adults Are Struggling With Substance Abuse ran October 3, 2014 looks at the number of elders who are substance abusers-whether drugs or alcohol. The numbers are surprising:
An estimated 2.8 million older adults in the United States meet the criteria for alcohol abuse, and this number is expected to reach 5.7 million by 2020, according to a study in the journal “Addiction.” In 2008, 231,200 people over 50 sought treatment for substance abuse, up from 102,700 in 1992, according to the Substance Abuse and Mental Health Services Administration, a federal agency.
Although alcohol abuse seems to rank first, the "rate of illicit drug use among adults 50 to 64 increased from 2.7 percent in 2002 to 6.0 percent in 2013" according to the story. The article mentions several studies, not only looking at the extent of the abuse, but the reasons behind these addictions. Although for some, retirement may be a catalyst, many times it is not the sole reason, "'with the conditions leading to retirement, and the economic and social nature of the retirement itself, having a far greater impact on substance use than simple retirement itself..."' Some of the "firsts" experienced in later life, such as deaths of spouses and friends, may be a contributing factor that requires "coping skills" these folks haven't had to yet possess.
The article also touches on the potential lack of doctor training on dealing with elder patients with substance abuse issues, and notes some symptoms associated with dementia may have similar symptoms to those of addictions.
Thursday, October 9, 2014
Kurzweil Accelerating Intelliegence (Kurzweil AI) ran a story that got my attention. The signature of aging in the brain reports on the results of a study that looks at a "signature" in the brain "that may be the “missing link” between cognitive decline and aging and that may in the future lead to treatments that can slow or reverse cognitive decline in older people..."
This is a technical article and perhaps not the type we typically cover in our blog, but I thought it important enough to mention. Since I don't have a scientific background, I decided to excerpt some of the findings
they identified a unique “signature of aging” that exists solely in the choroid plexus. They discovered that one of the main elements of this signature was interferon beta, a protein that the body normally produces to fight viral infection.
Turns out this protein also appears to have a negative effect on the brain. When the researchers injected an antibody that blocks interferon beta activity into the cerebrospinal fluid of the older mice, their cognitive abilities were restored, as was their ability to form new brain cells.
Why this is important? It may lead to different treatments to help with cognitive decline-the researchers "hope that this finding may, in the future, help prevent or reverse cognitive decline in old age by finding ways to rejuvenate the immunological age of the brain."
Sunday, October 5, 2014
I've been posting quite a bit about end of life issues. I wanted to be sure everyone saw the story in the NY Times on September 25, 2014 about one child's struggle to honor her dad's wish to die at home. Unfortunately, this isn't a new issue, and clearly one that isn't near resolution. The story, Fighting to Honor a Father’s Last Wish: To Die at Home tells the story of Joseph Andrey and his daughter's efforts "to fulfill her father’s dearest wish, the wish so common among frail, elderly people: to die at home...But it seemed as if all the forces of the health care system were against her — hospitals, nursing homes, home health agencies, insurance companies, and the shifting crosscurrents of public health care spending." On many occasions her dad had been discharged from the hospital to a SNF for rehab. This time she wanted to have him discharged to home, but was unsuccessful and her dad was transferred to a SNF, again.
The blog post illustrates the catch-22 within which Mr. Andrey and his daughter found themselves. The post also explains the recently-released Institute of Medicine report on Dying in America (we blogged about it earlier). Returning to Mr. Andrey's story, the article includes a short biography of his life (including a brief tenure as a child in Vaudeville), his wife's decline from Alzheimer's, his up close and personal...and ongoing...experience with the U.S. health care system, and ends with his final years. He had frequent stays at SNFs because of the inability to secure home health care in a system where there were financial incentives for SNFs but not the same profitability, if you will, for the home health agencies.
Despite all of his daughter's efforts, Mr. Andrey didn't die at home, but in a hospice within a hospital. If you read the entire article, by turns you will be appalled and saddened. If you assign this to your students, there are many opportunities for discussion about the U.S. health care system as well as end of life care in our country.
Tuesday, September 30, 2014
Via the Canberra Times:
Australia, with its weather, way of life and friendly people, has a unique advantage to produce "dementia-friendly" communities and help those affected lead fulfilling lives, according to a visiting British expert. Steve Milton, a director of Innovations in Dementia in Britain, was in Canberra this week to give a talk about dementia-friendly communities on behalf of Alzheimer's Australia. There were sound economic reasons for supporting people with dementia at a community level, he said. "If you were able to prevent people with dementia going into care homes earlier than they needed to by 12 months, we're looking at a saving of $2 billion, which is not an insignificant amount to do something that people want anyway." Alzheimer's Australia national president Graeme Samuel said it was important to help people with dementia sustain their independence, dignity and sense of community. Milton said access to public transport, ensuring environments were easily accessible to people with dementia and things such as Australia's many sports clubs were important factors in helping those affected overcome barriers such as social isolation and stigma.
Monday, September 29, 2014
The Workplace and People with Disabilities:
Past, Present and Future
Webcast Date: Wednesday, October 29, 2014
Webcast Time: 12:00 - 1:00 p.m. EDT
The ILR Online webcast series 2014-15 line-up will feature programs with a “past, present and future” theme, to align with Cornell University’s 150th anniversary and the ILR School’s 70th anniversary in 2015.
The October program will focus on employment and disability to coincide with National Disability Employment Awareness Month. Academic, policy and advocacy experts will share historical perspectives, discuss current initiatives and the state of employment for people with disabilities today, and examine issues that need to be addressed to support full workplace inclusion of people with disabilities in the future.
The program will be hosted by Susanne Bruyere, director of ILR’s Employment and Disability Institute, and Lisa Nishii, associate professor of human resource studies.
ILR Online webcast series programs feature expert insight and the latest research on today's world-of-work issues, giving you practical information that can improve your workplace and advance your organization.
For more information about upcoming webcasts, please contact Lori Biechele, Cornell University ILR School, 607-254-8941, firstname.lastname@example.org.
Previous webcasts produced by the Cornell ILR School can be viewed here.
Sunday, September 21, 2014
A more positive way perhaps to word the question might be "how old do you want to live to be?" The Atlantic ran an article that phrased it a bit differently, but still focused on at what age is long lived enough? The author, Ezekiel Emanuel, serves as Director, Clinical Bioethics Department, National Institutes of Health & chairs U. of Pa. Department of Medical Ethics & Health Policy. Why I Hope to Die at 75 appeared in the September 17, 2014 issue. Dr. Emanuel writes about his decision that 75 is his "magic number" and how others have tried to convince him that he should change his mind on this. Why 75? He explains
By the time I reach 75, I will have lived a complete life. I will have loved and been loved. My children will be grown and in the midst of their own rich lives. I will have seen my grandchildren born and beginning their lives. I will have pursued my life’s projects and made whatever contributions, important or not, I am going to make. And hopefully, I will not have too many mental and physical limitations. Dying at 75 will not be a tragedy. Indeed, I plan to have my memorial service before I die. And I don’t want any crying or wailing, but a warm gathering filled with fun reminiscences, stories of my awkwardness, and celebrations of a good life. After I die, my survivors can have their own memorial service if they want—that is not my business.
He makes it clear that he is not supporting physician-aided dying and if he lives past 75, so be it-he's not going to take steps to end his life. Where his wish comes into play is the type of health care he will consent to receiving once he hits that age. He argues that more years don't necessarily mean good years, noting that seventy is NOT the "new fifty". Although older folks may be more active or in better health, there is still a rise in disability which he points to as a reason that the focus shouldn't just be on quantity. He quotes another expert, "health care hasn’t slowed the aging process so much as it has slowed the dying process." The fact of living longer but more incapacitated holds no appeal for him.
Dr. Emanuel looks at examples of health care issues, such as stroke and dementia, using statistics and real stories to illustrate his point. Regarding Alzheimer's, after citing to statistics on the correlation between aging and dementia, he offers
[e]ven if we aren’t demented, our mental functioning deteriorates as we grow older. Age-associated declines in mental-processing speed, working and long-term memory, and problem-solving are well established. Conversely, distractibility increases. We cannot focus and stay with a project as well as we could when we were young. As we move slower with age, we also think slower.
He also discusses the correlation between age and creativity-an inverse relationship it seems--the older you are, the less creative, unless you are one of those rare individuals (we all know of someone quite famous who did something remarkably creative at an advanced age---think Grandma Moses).
As we age, to accommodate our "current selves" we constrict how we live, and as Dr. Emanuel describes, we find ourselves "aspiring to and doing less and less". Yet we each enjoy different things. This calls to mind some of the arguments we hear about the use of substituted judgment in health care/end of life decision-making. We each define a quality of life in different ways, and Dr. Emanuel recognizes that his view may be a bit harsh.
Yet, he contends, it is not about the elder individual racking up the years. There is a burden on the family to be considered, and he says "I will leave aside the very real and oppressive financial and caregiving burdens that many, if not most, adults in the so-called sandwich generation are now experiencing, caught between the care of children and parents. Our living too long places real emotional weights on our progeny."
Back to his plan when he reaches 75. As far as health care, here is his plan: to "stop getting any regular preventive tests, screenings, or interventions ... [and] accept only palliative—not curative—treatments if ... suffering pain or other disability." He makes it clear that this is his view and he respects the views of others that are contrary to his.
This article provides a wealth of topics for discussions with our students and is worthwhile reading, even though you may hold a contrary view to Dr. Emanuel.
Thursday, September 18, 2014
The Institute of Medicine of the National Academies has released a new report on end of life issues. The report, Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life was released on September 17, 2014. The report brief offers an explanation of the importance of this new survey, including the sheer numbers of American elders who are living with some limitations on ADLs, chronic illness, cognitive issues and more. As well the report points to issues with the health care system, including problems in accessing care, a lack of palliative care specialists and knowledge about end of life care, and a health care system that works out of sync, with economic incentives. The brief concludes with a call for "person-centered, family-oriented approach that honors individual preferences and promotes quality of life through the end of life [as] ... a national priority." The report is "a comprehensive assessment of the knowledge gaps, structural problems, and financial disincentives that hamper delivery of optimal care and makes cross-sectoral recommendations to achieve compassionate, affordable, sustainable, and effective care for all Americans."
The website also includes a link to key findings, core components, an infographic and a quiz (5 questions) which is suitable for use in class.
Wednesday, September 17, 2014
(Thanks to Judy Stein, Executive Director for the Center for Medicare Advocacy (CMA) for sharing this).
Monday, September 15, 2014
One of our great readers, attorney Paul Meints from Bloomington, Illinois, has shared ideas about how to make Powers of Attorney (POAs) more responsive to practical concerns, including the possibility that when tough times eventually occur, the principal may fail to realize or recognize his or her own waning abilities, including the ability to drive safely. Here is language Paul has tailored to address these potential concerns:
Inability to Function as Principal; Inability to Operate a Motor Vehicle in a Safe and Proper Manner:
My successor Agent or My Attorney may execute and deliver an Affidavit that I am unwilling or unable to serve or to continue to serve, and such affidavit shall be conclusive evidence insofar as third parties are concerned of the facts set forth therein, and in such event any person acting in reliance upon such affidavit shall incur no liability to my estate because of such reliance. The decision as to determining my inability (1) to properly, prudently, and fully function as Principal and/or (2) to operate a motor vehicle shall be made by a Committee consisting of three of the persons [or such person’s designee] named on page one together with one other person selected by my attorney or the family committee. I authorize all health care providers who may have provided, or be providing me with any type of health care (physical and mental), to disclose all direct or Protected Health Information (HIPAA/PHI) to each member of the family committee. If, in the Committee's sole and absolute judgment, I am so incapacitated by reason of illness, age, or other cause that I am incapable of expending funds for my own use and benefit or am not giving prompt attention to my financial affairs, then my successor agent is authorized to act on my behalf. If, in the Committee's sole and absolute judgment, I am so incapacitated by reason of illness, age, or other cause that I am incapable of operating a motor vehicle in a safe, proper, and prudent manner, then my successor agent, My Attorney, or both are authorized to release and terminate my driving privileges.
I like the fact that this language realizes that not all agents will feel comfortable making decisions on sensitive matters by acting alone, and that the POA actually provides guidance for how to make an ulitimate decision about the principal's inability to handle finances or drive. In essence, this POA would appear to permit the agent to override the principal's resistence. Thanks for sharing this language, Paul. Reactions from other readers? Would your state recognize the vailidity of such language?
Monday, September 8, 2014
Have you ever considered the similarities between caregiving and improv? Probably not--who would-they certainly seem to be quite dissimilar occupations. Yet when you think about their characteristics, they are quite similar. The website, In the Moment, which is focused on "creative ideas for training staff" lists on the landing page characteristics that apply to both, including being flexible, adaptable, courageous, spontaneous, generous, selfless and trusting.
and within twenty four hours ... was on a plane flying to be with ... family and wait for ... Dad to pass away. During that time of sitting, laughing, thinking, crying and rambling -[she]...realized that the world of Improvisation was very similar to the world of caregiving and Alzheimer's disease and dementia.... [unsure] why the idea hit ... then, maybe it was divine inspiration, maybe someone was telling [her] the reason why [her] ... Dad had Alzheimer's or maybe [she] ...was sleep deprived. Probably all of the above... [Having]... attended a lot of very informative and well executed workshops and trainings... [yet] not a very good learner... [she] remember[s] sitting in a class and listening to the instructor talking about effective communication with persons with dementia."
Then inspiration struck, as she says in her own words "[a]ll I could think of was how tired I was of sitting . If she would just do this improv exercise it would illustrate her point more clearly and get everyone up and moving. Hmmmm...." She wrote grant applications, with this excerpt from her abstract, explaining the parallels
The rules of Improvisation parallel the “ rules “ of Caregiving for a person with Alzheimer’s. Each rule of Improv has exercises, hands on techniques to illustrate points of care. Improv itself teaches characteristics that are essential to the caregiver : listening, validation, accepting others’ realities, problem solving and creativity to name only a few. I see improvisation as another tool for caregivers and for trainers to use to create a better quality of life for each person with Alzheimer’s. I want to clarify that this this is not training of how to do Improvisation. But training that uses Improvisation to teach Alzheimer care.
The "rules" she references can be accessed here. The website also provides information about the 6 week training program, training tips, and other resources. Ultimately, the goal of this project is to "[e]Employ ... theater games with creativity exercises ... [to] provide caregivers with the methods to become better at what they do."
Live in the moment--and enjoy that moment with a family member who has dementia---very good advice indeed.