Friday, April 17, 2015

Searching for Answers to Questions about Continuing Care: Point/Counter Point

Scott E. Townsley, a very bright attorney, an adjunct associate professor at UMBC's Erickson School of Aging Studies, and a principal with CliftonLawsonAllen LLP, invited me to join him recently for a presentation to the 2015 Mid-Atlantic Region Resident Council Conference in Silver Spring, Md. (The lovely D.C. area cherry trees were in full bloom that day.) Cherry Trees at Riderwood Community 2015

Our theme was "Hot Topics in Continuing Care."  Scott, a regular consultant to nonprofit CCRCs, used his deep experience in senior housing to outline his perspective on the biggest issues facing CCRCs. In preparation for my part, I reached out to my contacts in resident groups around the country and asked them to share with me their biggest concerns. 

We then trimmed down our two respective lists and used a Point/Counter Point approach to the debate.  Do any of our readers remember 60 Minutes' James Kirkpatrick and Shana Woodley?  (Okay, how about Dan Aykroyd and Jane Curtain's lampoon of the Point/ Counter Point format?  I think it is fair to say that we were less political than the first combo, and more polite -- if less humorous -- than the SNL crew.  But we had fun.)

With a tip of the hat to David Letterman in borrowing his "top ten" format, here is a very distilled version of my list of Resident Concerns:

10. What does it really mean to be a nonprofit CCRC in 2015?

9.  Do we need to worry about conversions of nonprofit CCRCs to for-profit?

8.  What is the right response to the trend that residents are older and more disabled, even when first entering the community?

Continue reading

April 17, 2015 in Consumer Information, Dementia/Alzheimer’s, Discrimination, Health Care/Long Term Care, Housing, Property Management, Retirement, State Statutes/Regulations, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, April 16, 2015

Comment Window Opens for Proposed Rules re Conflicts of Interest in Retirement Advice

The U.S. Department of Labor has released a new proposed rule intended to protect consumers from conflicts of interest among an array of folks who want to give advice about how and where to invest 401(c) and IRA retirement funds.  The new rule would impose a "fiduciary duty" standard on those advisors, rather than the current, lower "suitability" standard for investment advice.

A DOL press release explains the goal: 

"This boils down to a very simple concept: if someone is  paid to give you retirement investment advice, that person should be working in  your best interest," said Secretary of Labor Thomas E. Perez. "As commonsense  as this may be, laws to protect consumers and ensure that financial advisers  are giving the best advice in a complex market have not kept pace. Our proposed  rule would change that. Under the proposed rule, retirement advisers can be  paid in various ways, as long as they are willing to put their customers' best  interest first."

 

Today's announcement includes a proposed rule that would  update and close loopholes in a nearly 40-year-old regulation. The proposal  would expand the number of persons who are subject to fiduciary best interest  standards when they provide retirement investment advice. It also includes a  package of proposed exemptions allowing advisers to continue to receive payments  that could create conflicts of interest if the conditions of the exemption are  met. In addition, the announcement includes a comprehensive economic analysis  of the proposals' expected gains to investors and costs.

The New York Times covers the new rules in "U.S. Plans Stiffer Rules Protecting Retiree Cash," and notes the history of opposition to this kind of reform from -- surprise, surprise -- the "financial services industry." There is a 75-day window for public comments on the latest proposal.

Perhaps my biggest surprise was the remarkably "consumer friendly" presentation of the proposed change by the Department of Labor on its webpage, beginning with this simple video describing conflicts of interest.   

April 16, 2015 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Property Management, Retirement | Permalink | Comments (0) | TrackBack (0)

NYT: Nursing Homes Chase Lucrative Patients (But That's Not the Whole Story)

From the New York Times on April 14, an article from the business section, As Nursing Homes Chase Lucrative Patients, Quality of Care is Said to Lag.

Promises of “decadent” hot baths on demand, putting greens and gurgling waterfalls to calm the mind: These luxurious touches rarely conjure images of a stay in a nursing home.

 

But in a cutthroat race for Medicare dollars, nursing homes are turning to amenities like those to lure patients who are leaving a hospital and need short-term rehabilitation after an injury or illness, rather than long-term care at the end of life.

 

Even as nursing homes are busily investing in luxury living quarters, however, the quality of care is strikingly uneven. And it is clear that many of the homes are not up to the challenge of providing the intensive medical care that rehabilitation requires. Many are often short on nurses and aides and do not have doctors on staff.

Some colorful quotes here ("patients are leaving the hospital half-cooked"), but a lot of this well-written article nonetheless seems like old news to me (okay, perhaps that's because of my chosen research focus), with reporting on trends influenced by operating margins on the "nonprofit" side of care, and "return on investment" for shareholders on the for-profit side.  Perhaps "intensity" of the pressures is the theme here? 

Tip of the hat to George Washington University Law student Sarah Elizabeth Gelfand ('16) and GW Professor Naomi Cahn for making sure we saw this article!  

April 16, 2015 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Retirement, Statistics | Permalink | Comments (0) | TrackBack (0)

Saturday, April 11, 2015

ALs, PCHs, CCRCs, SNFs, RCFEs and the Name Game in Senior Housing

One of the first assignments I give to law students in my Elder Law course is to visit a "nursing home" and to see if they can get a copy of the admission agreement or contract.  (Most of the facilities in my area cooperate with these student visitors.)  The lesson here, however, is revealed when the students bring the documents back to the classroom for discussion. We discover that the majority of the contracts are not for admission to "skilled nursing facilities."

More frequently the facilities in question are licensed as "continuing care retirement communities" or CCRCs, which are big in Pennsylvania, or personal care homes (PCs or PCHs), or assisted living (AL) communities, each of which have different state regulations applying to their operations. These are not "nursing homes," or at least, they are not "skilled nursing facilities." Further, in Pennsylvania, increasingly there may be no label at all -- at least not a label that the public is familiar with -- and that is often by design as the facility or community may be attempting to avoid a "higher" level of requirements. 

The usual explanation is that the choice in label is not driven by concerns over "quality" of care, but by costs of having to meet some non "care" related regulation, such as AL state requirements for room size or physical accommodations.  The facility makes the case that it can meet the real needs of its clientele without being tied to "higher care" and therefore more "costly" models for senior housing.  Fair enough.  Caveat emptor.  If you are the customer, make sure you do your homework, ask questions, comparative shop, and avoid assumptions based on pretty pictures in marketing brochures. And try to do all of this before an emergency that accelerates the need for a move.

But, there can be significant differences triggered by a label (or lack thereof) that are not readily apparent to the public. A recent Policy Issue Brief published by Justice In Aging (formerly the National Senior Law Center) uses examples from California to shine a spotlight on subtle issues in labeling, as well as on the importance of regulations that are responsive and up-to-date.  Merely changing an "identity" or label should not be the basis for failing to comply with minimum standards relevant to the clients' needs.

In How California's Assisted Living System Falls Short in Addressing Residents' Health Care Needs,  Justice in Aging (JIA, to make our circle of acronyms almost complete), provides a sample job notice for a California facility and asks "can you spot the legal violations in this Assisted Living job announcement?" The notice, appears to be hiring for a "certified med aide," despite the fact that  there is no such thing in California, and more importantly, if the facility calling itself "Assisted Living" is actually a RCFE (residential care facility for the elderly), the California regulations do not permit staff to administer medications.  Outside of Medicare/Medicaid standards for skilled nursing facilities -- the "nursing homes" of the past -- there are no national standards for labeling of "assisted living" or the many alternatives. 

JIA's issue brief dated April 7, 2015 is part of a series that explores how California's system functions and points to ways it could be modified to help assure residents their expectations and needs will be satisfied.

The lessons in the JIA brief -- with a few tweaks to respond to any given state's set of acronyms -- seem equally relevant in all states.

April 11, 2015 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Retirement | Permalink | Comments (0) | TrackBack (0)

Saturday, April 4, 2015

"Informal" Arrangements for Home Care? What's the Downside? Here's One...

When it becomes impossible for a loved one to stay at home without help, one decision that families made need to face is whether to use an agency, or hire one or more individuals outright. Agencies are usually more expensive (at least on paper). But direct hires of home aides can raise other questions, including how to handle state and federal income taxes and documentation, insurance, transportation (read: more insurance questions), coverage for holidays, sick leave, overtime, and more.  You start off thinking this is short term help; the reality is it can last much longer....

But there is still one more question that may not be on the family's radar screen, until it is too late.

If the informal home care arrangements eventually don't suffice, perhaps because of increasing frailty and care needs, what happens when the individual's money is gone and there is a need for Medicaid-paid care?  

As explained in a recent Michigan Court of Appeals case, "informal" arrangements for home care may trigger ineligibility for Medicaid-paid care based on state rules or policies implementing federal law.

Continue reading

April 4, 2015 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, April 2, 2015

Must Lawyer Consult With "Agent" Before Complying With Elderly Client's Request to Terminate POA?

Here is a recent ruling (February 2015), based on a fact pattern that many elder law attorneys will appreciate as both familiar and challenging.

In Runge v. Disciplinary Board, the Supreme Court of North Dakota reversed a disciplinary board "admonishment" of an attorney for "violating" the Rules of Professional Conduct, Rule 1.14.  North Dakota's Rule 1.14, addressing representation of a "client with limited capacity," is similar to the ABA Model Rule 1.14 on clients with "diminished capacity."

At issue in the disciplinary proceeding was the lawyer's representation of a 79-year-old man who was residing in a "Care Center." The man wished to leave the nursing home, against "medical advice" and, apparently also in opposition to his daughter's apparent belief about what was best for him. The man had, before experiencing a heart attack, named his daughter as an agent under a durable POA. 

By the time the attorney met with the man, the man had been living in the care center for several months.  After meeting with the older man (and a female friend of the man), at the man's request the attorney prepared a revocation of the POA.  The lawyer explained to the care center that absent someone holding a guardianship or custodianship for the man, and as long as the lawyer was persuaded his client had sufficient capacity, the revocation of the POA was effective and neither the center nor the daughter had grounds to prevent him from leaving.

Unhappy with this outcome, the daughter filed a Disciplinary Board complaint against the attorney, asserting the lawyer had acted improperly by failing to consult with her as her father's named agent, and taking the position her father's "incapacity" for purposes of an earlier "emergency care" statement was conclusive of his incapacity.  The Court, however, observed:

"Here no guardianship or conservatorship existed that withdrew Franz's authority to act for himself. Rather, Franz shared his authority to act and he remained free to withdraw the authority conferred under that power of attorney, which, in any event, precluded anyone from making his medical decisions. This record reflects [Lawyer]Runge talked with Franz by telephone and in person to ascertain his wishes before Franz revoked the power of attorney. Runge's recitation of his conversations with Franz does not clearly and convincingly establish Franz was incapacitated in April 2013. This record does not reflect any subsequent attempt to obtain a court-ordered guardianship or conservatorship for Franz, which belies any suggestion that he was incapacitated in April 2013."

Therefore, the North Dakota Supreme Court dismissed the daughter's Disciplinary Board complaint.

Significantly, the Court observes that although the lawyer "could" have contacted the daughter before executing the revocation of the POA, the provisions of Rule 1.14 did not "require" him to do so. 

Lots of potential lessons here.  A key to the outcome seems to be the lawyer's persuasive testimony, showing the care he took in making the decision to represent the man and to prepare the revocation.  As the court observed, "[The lawyer's] assessment of [the man's] capacity was within the range of a lawyer's exercise of professional judgment."  This case is another demonstration that lawyers hold a lot of power -- and responsibility -- in matters involving client capacity.  

Many thanks to Professor Laurel Terry at Dickinson Law for sending this decision our way. 

April 2, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (2) | TrackBack (0)

Wednesday, April 1, 2015

AARP Reports on the Struggle to Overcome Unemployment for Older Job Seekers

The AARP Public Policy Institute has recently published an Insight Report (March 2015) on older workers and unemployment following the recent economic crisis.  The report draws upon surveys of persons aged 45 to 70 affected by unemployment during the last 5 years.  The primary focus of the analysis is on "reemployment," including what strategies were used in successful efforts to find jobs. 

Lots of interesting information here.  Even though the rate of unemployment is lower for older workers, those losing their jobs later in life stayed unemployed longer than younger job seekers, and their recovery jobs reportedly paid less.  Some of the findings, however, are of equal relevance to younger job seekers.  One set of responses was especially sobering, on a question about possible working life regrets:  

"When asked whether there was anything they wished they had done differently over their working lives or careers to better position themselves for dealing with unemployment, 52 percent said 'yes.' The most common answer —65 percent — was a wish that they had saved more money. Also of note, 48 percent wished they had gone back to school to complete or get another degree, and 38 percent wished they had chosen a different field. The unemployed and the long–term unemployed were more likely than the other groups to wish they had chosen a different field. Those who elected that regret also tended to be younger (56 percent were ages 45 to 54)."

Many thanks to Professor Naomi Cahn at George Washington Law for alerting me to this report, and sending a link to related Wonk Blog coverage of the study from the Washington Post  -- lots of well-explained graphs from an oral presentation that accompanied the launch of AARP's written report. 

April 1, 2015 in Consumer Information, Current Affairs, Discrimination, Ethical Issues, Retirement, Statistics | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 31, 2015

Educating the Public about Powers of Attorney (With the Help of Friends Across the Pond)

As we have described often on this Blog, there is a fair degree of concern about whether members of the public understand the potential significance of a  Power of Attorney before they sign the document.  Apparently the U.S. is not alone in this concern. 

Recently, Northern Ireland's Law Society (for comparison purposes, an organization which somewhat of a hybrid of the American Bar Association and a state's licensing board or disciplinary authority), issued an interesting pamphlet about "enduring powers of attorney" or EPAs, to serve as a guide for members of the public, using a Q & A format. EPAs are similar to our durable POAs, and, of course, their utility depends on being executed in advance of any need.  Topics addressed include: 

  • Do I lose control when I sign an EPA?
  • Is this just a note of my wishes?
  • Do I need an EPA if I have a will?
  • If I don't have investments or property is there any point?
  • What if all my assets are jointly owned?
  • Can I have more than one attorney [agent]?
  • Who should I appoint as my attorney [agent]?
  • What power does an attorney [agent] have?
  • What responsibilities does my attorney [agent] have?
  • Is my attorney [agent] paid for work undertaken?
  • Can I change my mind and revoke an EPA?
  • If I recover my capacity, who is in charge of my affairs?
  • Is it expensive to make an EPA? 

You are curious about the answers, aren't you!  For the cleanly written answers to these questions, access the PDF from the Law Society here.   Thank you to my Dickinson Law colleague Laurel Terry for the pointer.

March 31, 2015 in Consumer Information, Ethical Issues, Property Management | Permalink | Comments (0) | TrackBack (0)

Monday, March 30, 2015

Catching Up with the U.S. Senate Special Committee on Aging

As Maryland reader Dennis Brezina (and legislative assistant to Wisconsin Senator Gaylord Nelson) helpfully reminded me, with the new Congress there has been a changing of the leadership of the Senate Special Committee on Aging.  The new Chair and Ranking Member of the Committee are, respectively,  Senators Susan Collins, (R-Maine) and Claire McCaskill (D-Missouri).

This committee maintains a  "fraud hotline," for reporting abuse, including financial exploitation, affecting vulnerable seniors.  The number is 1-855-303-9470.  For more on the Committee's interest in this topic, reports from recent hearings are available on the Committee website. 

Thanks, Dennis!

March 30, 2015 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Friday, March 27, 2015

How Old Are You? No really, How Old Are You?

 

I thought it fitting to end the week with a recent story from the New York Times.  You know that old saying  that goes something like this "you are only as old as you feel"? Well according to Social Security, a whole bunch of us are a lot older than we are.... The A.P. ran an article on March 16, Flawed Social Security data say 6.5M in US reach age 112. The article notes that the reality is only about 42 people in the world are that old. So what about the other 6.4+ million others?  According to the article, lack of death certificates can be a partial explanation.

But Social Security does not have death records for millions of these people, with the oldest born in 1869, according to a report by the agency's inspector general.

Only 13 of the people are still getting Social Security benefits, the report said. But for others, their Social Security numbers are still active, so a number could be used to report wages, open bank accounts, obtain credit cards or claim fraudulent tax refunds.

The Senate Committee on Homeland Security & Government Affairs held a hearing on  SSA and death records on March 16, 2015. The solution is a bit more complicated than you might think, according to the article. Think about paper records and how time consuming it is to convert them to electronic records.  Social Security is concerned about whether 6.5 million people are alive or not, but  "the inspector general's report did not verify that any of the 6.5 million people are actually dead. Instead, the report assumed they are dead because of their advanced age." An SSA official was quoted as saying "our focus right now is to make sure our data is as accurate and complete as it can be for our current program purpose,... Right now, we're focused on making sure we're paying beneficiaries properly, and that's how we're investing our resources at this time."

March 27, 2015 in Consumer Information, Current Affairs, Social Security | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 24, 2015

Are Doctors Failing to Tell Patients of Diagnosis of Alzheimer's? And Why Not?

The Alzheimer's Association's 2015 Facts & Figures Report that many doctors fail to tell patients (or their family members) about a diagnosis of Alzheimer's is getting a lot of attention, including this Morning Edition story

Why aren't doctors revealing their diagnoses?  During my work in Northern Ireland on access to justice for older adults, we realized that the doctor's diagnosis is a key opportunity for families to receive early advice about "non-medical" planning, such as arranging for powers of attorney or other arrangements for financial management, while the patient has adequate cognition to help with decision-making.  If communication of the diagnosis is delayed, the window for effective participation in planning may also be lost.

March 24, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Thursday, March 19, 2015

NAELA Submits Comments on Proposed VA Regs re Eligibility for Benefits

The National Academy of Elder Law Attorneys (NAELA) recently submitted detailed formal comments to proposed VA rules affecting asset tests for eligibility for Veterans benefits. They begin:

NAELA welcomes the effort to try to make the eligibility criteria for pension and other benefits administered by VA objective and transparent, but we believe that these proposed regulations, if implemented, would cause substantial harm to wartime Veterans, their spouses, and dependents and will not solve the serious issue of unscrupulous organizations taking advantage of potential beneficiaries by selling inappropriate annuities or trusts.

 

In addition, we express the serious concern that the proposed rules 3-year look-back period and transfer of assets penalty exceed statutory authority, opening up VA to future litigation and causing additional uncertainty for Veterans and their families.

For the full NAELA submission, see here

March 19, 2015 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Veterans | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 18, 2015

Asking Questions re What It Means to Have "The Talk" about Long-Term Care Planning

There is an interesting new YouTube video available, with charismatic, high-profile actors encouraging all of us to initiate "The Talk" about how we -- or our loved ones -- want to handle the possibility, indeed probability, that someday we will need long-term care.  Rob Lowe, Maria Shriver, Maggie Gyllenhaal, Angela Bassett, Zachary Quinto and Jim Nantz admit the difficulties of talking about growing old, often using vivid tidbits from their own lives or families to emphasize the importance of breaking past the barriers of denial. 

I like the video. It is simple, direct.  But, at the same time, I find the initial video, while interesting, to be a lacking in specifics about what it means to "talk" about long-term-care planning. The 2-minute video is actually part of a series created by Genworth, the major seller of long-term care insurance, and if you hit the right (wrong?) buttons you are directed to Genworth websites that offer more details, especially about  -- surprise, surprise -- buying long-term care insurance. 

I suspect that many people will panic if they hear "pay some money now" in order to buy LTC insurance, as even a part of the  "solution."  See what you think:

 

March 18, 2015 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Film, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Monday, March 16, 2015

New Issue Brief from Justice in Aging

Justice in Aging (formerly the National Senior Citizens Law Center) has released an issue brief, How California’s Assisted Living System Falls Short In Addressing Resident’s Health Care Needs The Problem: Pretending that Medication Is Always “Self- Administered”  According to the brief, the issue of safe medication administration has

been overlooked for decades. “Assistance with self-administration” is too often a code word for medication administration by a poorly-trained non-nurse. As explained above, other states already have addressed this issue. California has not, due to factors such as the no-health-care orientation of California’s assisted living law, and important concerns about changing state laws related to nurses’ scope of practice. Stakeholders (including nursing representatives) should work together to consider the options to improve medication administration in assisted living. DSS to its credit has taken initial steps to work with stakeholders to identify problems and solutions related to the current RCFE system.

The issue brief is the first in a series to be released by Justice in Aging. More information about Justice in Aging is available here.

March 16, 2015 in Consumer Information, Housing | Permalink | Comments (0) | TrackBack (0)

Sunday, March 15, 2015

New Book: Achieving Independence

Attorney and author Steve Dale has published a new book, Achieving Independence- A Guide to Creating an Estate Plan Which Ensures Quality of Life for You and Your Loved One with a Disability. According to the author

The primary purpose of this guide is to assist families in the planning process of creating a special needs trust for a loved one with a disability. Stephen shares with the reader his experience as an attorney that has focused primarily on estate planning for persons with disabilities and their families for the past 25 years. He also                         illustrates some of the challenges that persons with disabilities and their families face by sharing his experiences growing up in California’s State Hospital System as a child of three generations of institutional workers and later as a Psychiatric Technician giving direct care in a variety of psychiatric hospitals for 17 years.

 Stephen and his office developed the Achieving Independence System to educate clients on key issues and decisions commonly encountered in creating a special needs trust so clients can be better prepared before meeting with their attorneys and advisors to create a team that best serves their needs. After the plan is created, an effective plan will assist the trust management team to focus on what is really important;  to assist a person with a disability to live as independently as possible and to experience a quality of life that many persons who are not disabled take for granted. In essence to achieve the highest level of independence possible free from abuse and neglect.

The book runs 133 pages and is available from Amazon as a paperback for $20.00. Steve's Independence project is explained on his website, Achieving Independence. Full disclosure, Steve is a friend and a regular speaker at Stetson's annual Special Needs Conference.

                                

March 15, 2015 in Books, Cognitive Impairment, Consumer Information, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 11, 2015

U.S. Department of Justice Launches Elder Justice Website

Julie Childs, Project Manager for the U.S. Department of Justice's Elder Justice Website shared with us the resources now available to researchers, students and advocates.  Some of the highlights:

Here, victims and family members will find information about how to report elder abuse and financial exploitation in all 50 states and territories. Simply enter your zipcode to find local resources to assist you.

Federal, State, and local prosecutors will find three different databases containing sample pleadings and statutes.

Researchers in the elder abuse field may access a database containing bibliographic information for thousands of elder abuse and financial exploitation articles and reviews.

Practitioners -- including professionals of all types who work with elder abuse and its consequences -- will find information about resources available to help them prevent elder abuse and assist those who have already been abused, neglected or exploited.

This website is intended to be a living and dynamic resource. It will be updated often to reflect changes in the law, add new sample documents, and provide news in the rapidly evolving elder justice field.

It will be interesting to watch this site develop. 

March 11, 2015 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 10, 2015

Book: Aging Successfully in the "Right" Place Should Be the Goal

University of Florida Professor Stephen M. Golant has a new book, Aging in the Right Place.  The gerontologist advocates examining a host of modern options, and urges resistance to an overly simplistic mantra of "aging in place" as the only goal.  For example, he examines assisted living, co-housing, supported "independent living" environments, the "village" movement and CCRCs. Book Aging in the Right Place 

Interviewed for a Washington Post article, Golant explained:

“It’s not an all-or-nothing situation, obviously,” Golant said in an interview about aging-in-place. “But I just wanted to point out the imperfections, and the weaknesses in some of the arguments. . .I want to point out that sometimes there’s too much hype.”

 

It’s the sort of hype that has surrounded what he calls the New Gerontology, a long running trend that sometimes seems to imply that if people follow certain regimens of diet, physical exercise, social activity and cognitive training, they might avoid aging altogether.

As I have also suggested here, it is important for individuals and families to be realistic about what it will take to stay at home safely, making it important to be open to a larger definition of "home" in order to emphasize better quality of life. 

March 10, 2015 in Consumer Information, Health Care/Long Term Care, Housing, Retirement | Permalink | Comments (1) | TrackBack (0)

Monday, March 2, 2015

The Economic Cost of Conflict of Interest for Advisors on Retirement Investments

The White House Council of Economic Advisors released "The Effects of Conflicted Investment Advice on Retirement Savings" in February 2015, and the report is a must-read for anyone teaching courses on aging policy. 

The major focus of the analysis is on evidence of  "conflicts of interest" for those advising individuals on roll-over investment of IRA accounts, but the findings undoubtedly have relevance beyond that window on retirement planning.

The decision whether to roll over one’s assets into an IRA can be confusing and the set of financial products that can be held in an IRA is vast, including savings accounts, money market accounts, mutual funds, exchange-traded funds, individual stocks and bonds, and annuities. Selecting and managing IRA investments can be a challenging and time-consuming task, frequently one of the most complex financial decisions in a person’s life, and many Americans turn to professional advisers for assistance. However, financial advisers are often compensated through fees and commissions that depend on their clients’ actions. Such fee structures generate acute conflicts of interest: the best recommendation for the saver may not be the best recommendation for the adviser’s bottom line.

The report focuses on the quantifiable cost from conflicted advice, concluding that savers receiving such advice "earn returns roughly 1 percentage point lower each year."  But isn't there also a deeper cost, as the large swath of middle-income Americans, who may have justified fears of being able to safely evaluate investment risk and their investment advisors, do nothing productive with their savings? 

The New York Times editorial board draws upon the White House Council's report to call for adoption of reality-based rules on fiduciary duties for the financial services industry.  See NYT's "Protecting Fragile Retirement Nest Eggs."   

March 2, 2015 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Property Management, Retirement | Permalink | Comments (0) | TrackBack (0)

Friday, February 27, 2015

Why A "Pooled Trust" for Special Needs?

Texas attorney Renée C. Lovelace has literally written the book -- a guidebook -- on Pooled Trust Options.  Renée was a recent guest speaker at Penn State's Dickinson Law, appearing before students in an advanced seminar on planning techniques.  Indeed, our students had specifically asked to hear from experienced practitioners on special needs trusts, and with the help of the National Elder Law Foundation we were able to host a nationally known speaker to do just that. Renee Lovelace and Dickinson Law Students

Renée (third from the left, in blue) helped our students identify appropriate uses of pooled trusts, such as where the beneficiary's needs could be uniquely well-served by a trustee who is familiar with the challenges sometimes encountered in managing assets on behalf of  persons with disabilities.

While the special needs beneficiary may be frustrated by a manager's handling of "his" (or "her") money, sometimes it is the family that has questions about application of the law. Recently I was reading a New Jersey case decision, where a family was challenging the state's attempt to seek reimbursement for medical and care expenses expended by the state, following the death of their disabled daughter.  At the core of the dispute was what appeared to be a misunderstanding on the part of the family about the nature of their daughter's special needs trust, which they were describing as a pooled trust.  The court pointed out, that in the absence of a nonprofit manager, the trust could not be deemed a (d)(4)(C) trust or "pooled" trust, that would have allowed assets remaining after the death of the daughter to stay in the trust for the benefit of other disabled persons, rather than be subject to the state's reimbursement claim.

Thus, the case is a reminder that pooled trusts, properly created and managed are usually drafted as special needs trusts (SNTs).  However, not all SNTs are pooled trusts.  Or as Renée explains so well in her thorough guidebook:

Continue reading

February 27, 2015 in Books, Consumer Information, Current Affairs, Estates and Trusts, Health Care/Long Term Care, Medicaid, Social Security | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 24, 2015

Home Care Workers Join Forces to Advocate for Fair Wages

USA Today reports on home care workers "joining a nationwide movement" to raise wages,  with rallies planned for "more than 20 cities in the next two weeks." 

As described by journalist Paul Davidson,

"Like the fast food workers, the 2 million personal care and home health aides seek a $15 hourly wage and the right to unionize, which is barred in some states. Their median hourly wage is about $9.60 and annual pay averages just $18,600 because many work part-time, according to the Labor Department and National Employment Law Project. That puts the industry among the lowest paying despite fast-growing demand for home-based caregivers to serve aging  Baby Boomers over the next decade.

 

'Home care providers living in poverty don't have a stable standard of living so they can provide quality care,' says Mary Kay Henry, president of the Service Employees International Union, which is spearheading the home care aides' movement and backed the fast-food worker strikes."

According to a representative of "Home Care Association of America, which represented agencies that employ personal-care aides," companies attempt to "balance the ability to keep care affordable with attracting employees."

Thanks to Dickinson Law 3L student Jake Sternberger for pointing me to this news item.

February 24, 2015 in Consumer Information, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)