Monday, June 6, 2016
Justice in Aging (formerly known to many of us as the National Senior Citizens Law Center) covered a timely and important topic in their May, 2016 Issue Brief. Voluntary Means Voluntary: Coordinating Medicaid HCBS with Family Assistance was authored by Eric Carlson, well know nationally for his work regarding residents of long term care facilities. The issue brief runs 8 pages. Here is the executive summary:
When an older adult can no longer can live independently, and is eligible for Medicaid, he or she often qualifies for home and community-based services (HCBS) that enable the individual to stay at home, rather than move to a nursing facility or other health care institution. The same is true for persons with disabilities. HCBS are provided under a service plan; under federal Medicaid regulations effective since March 2014, those service plans cannot compel unpaid assistance by family members such as adult children.
As illustrated by Medicaid hearing decisions from Florida, however, state Medicaid programs (frequently through managed care organizations) often compel unpaid assistance from family members. The managed care organizations (MCOs) authorize service levels with the presumption that family members should be providing a certain level of personal care assistance. This leads to a lower level of Medicaid-funded service hours, which in turn requires family members to provide assistance to cover the service gap.
One problem in Florida is a "medical necessity" definition that denies Medicaid-funded services to the extent that those services are provided for caregiver convenience. This definition has been cited by MCOs and hearing officers to justify reduced levels of services, even when the caregiver’s "convenience" is his or her need to hold employment outside the home. Furthermore, twelve other states also have a similar "caregiver convenience" provision in the state’s Medicaid medical necessity definition.
In Florida and across the country, Medicaid beneficiaries and their advocates should address this problem. Florida advocates have made some progress in this area, and the state now agrees that service authorizations should respect a family caregiver’s outside employment. The Florida experience suggests the type of advocacy that could and should be pursued in Florida and other states. In individual service requests and appeals, beneficiaries and advocates should forcefully assert the voluntariness requirement of the federal service planning regulations. On a systemic level, advocates should argue for the removal or revision of "caregiver convenience" provisions, and advocate for service authorization procedures that explicitly incorporate the voluntariness requirement.
This issue brief is a "must read" for all elderlaw profs, attorneys and other advocates. A pdf of the issue brief is available here.
Thursday, June 2, 2016
Periodically we post about an article on Social Security, and one of the hot topics of late is when to start drawing Social Security. Do you take Social Security early before you reach your full retirement age, do you wait until that magic number (66 for many) or do you delay taking Social Security to later, even age 70? When you start to claim your Social Security benefit does have ramifications. We have also seen articles about the future viability of the Social Security program.
The Wall Street Journal ran an article recently about a recently published paper on the topic. The article, Here’s How to Get More People to Delay Claiming Social Security offers a view of regarding making Social Security more viable.
Global aging paired with pension shortfalls have led many governments to raise retirement ages and cut benefits. But this approach tends to be unpopular, as demonstrated by loud protests we’ve seen over the last few years from Greece and France to Detroit and, soon, Puerto Rico.
The article explains that the authors offer this proposal to increase the solvency of Social Security by "replacing the current Social Security delayed retirement credit with a lump-sum payment would induce many people to voluntarily defer claiming their Social Security benefits, and many would work more."
In the article, the authors explain the study they conducted to see if their idea would have merit, and they explain that
What we learned from our study is that many people would be willing to claim later and work longer, if they can get the attractive partial buyout from Social Security. Additionally, many who had initially stated that they wanted their benefit as young as possible, were also most willing to delay and work longer when offered the partial buyout.
The authors explain their idea is designed to be "cost-neutral" thus not adding to the woes regarding Social Security's long term prospects. The authors also note that "incentivizing longer work lives could lead to better mental and physical health at older ages for many people, so there could be ample positive social benefits."
The authors' paper is published on SSRN. Will They Take the Money and Work? An Empirical Analysis of People's Willingness to Delay Claiming Social Security Benefits for a Lump Sum. Here is the abstract for the paper:
This paper investigates whether exchanging the Social Security delayed retirement credit, currently paid as an increase in lifetime annuity benefits, for a lump sum would induce later claiming and additional work. We show that people would voluntarily claim about half a year later if the lump sum were paid for claiming any time after the Early Retirement Age, and about two-thirds of a year later if the lump sum were paid only for those claiming after their Full Retirement Age. Overall, people will work one-third to one-half of the additional months, compared to the status quo. Those who would currently claim at the youngest ages are likely to be most responsive to the offer of a lump sum benefit.
Recently I was at a dinner party with academics from across the spectrum of my university. As often happens, a group of us seated together for the meal swapped basic information about what we do in our day jobs. It was a fun group of art professors, special education specialists, and even an agricultural economist. We talked art and politics across the board. I had at first identified myself only as a professor at the law school, but during a lull in the conversation I explained my area was "law and aging" generally and more specifically the work of elder law attorneys. Ears perked up.
I had that experience that I suspect doctors have all the time. Everyone at the table had a question or story to tell of their family's recent aging issue. And as I listened, I recognized a common theme among these skilled, thoughtful professionals. I kept hearing that we knew "mom" or "aunt" or "grandpa" was getting older, and we offered help, but the help we offered either wasn't enough or was rejected outright. And often, the second part of their stories involved a "crisis." A particularly poignant example was the caring granddaughter who cooked and froze two weeks of meals for her frail, housebound grandmother, only to realize that her grandmother's "little bit of confusion" resulted in her opening all of the 14 days of dinners on the very first day. It precipitated a diabetic crisis for the grandmother, as well as the loss of the majority of the food.
Over the dinner, I was surprised to find myself talking a lot about what is dementia (and does it differ from Alzheimer's) and whether it can be distinguished from "temporary" conditions that cause short term confusion. Everyone at the table was searching for answers and admitting they didn't know enough before the crisis event. And I could completely empathize, because even with some 20 years of being fairly deeply immersed in elder care issues, I am regularly surprised by some new topic or challenge in my own family.
I had good reason to think about the party conversation again while listening to WITF-FM Public Radio's Smart Talk program on June 2. The program's guests were Dr. Linda Rhodes, the former Secretary of Aging for Pennsylvania, and Joan Krechmer, a geriatric care manager and the executive director for Jewish Family Services, in York, Pennsylvania and the topic was "Caring for Mom, Dad and Kids." Lots of people calling in and writing with very specific questions, and many of the questions were triggered by both crisis events and chronic care issues.
An example of one question was from a family member who was told the family had "24 hours" to decide about a skilled nursing facility when their loved one was being discharged from the hospital. "There is barely time to do the research" the program guests were talking about. And that is true. Even though federal law imposes a protocol on hospitals about discharge notices, and even provides a mechanism for informal appeal, which if triggered properly can automatically result in more time, most people simply won't know about that short-term remedy in advance.
The Smart Talk radio program is part of a larger series of events on the topic of family care-giving, including airing of the PBS television documentary on Caring for Mom & Dad and in-person sessions at area locations to talk about advance planning and identify resources in advance of a crisis.
Linda Rhodes, the former PA Secretary of Aging has written her own book, Caring for Aging Parents: The Essential Guide.
Have a plan to retire? Know how you will spend your time? AgeWave, along with Bank of America Merrill Lynch did a study on how people spend their retirements. Beyond the Bucket List: Experience Leisure in a Whole New Way provides the highlights from the study.
Huffington Post ran two blog posts that discussed the report. New Study Uncovers the Upside of Retirement Leisure: The Freedom Zone was published on May 12, 2016 and New Study Reveals Four Distinct Stages of Retirement Leisure on May 13, 2016. The report notes that people who are retired have more free time, but transitioning from work to retirement may be a challenge for some, since, according to the report, many folks work even when they are on vacation. The report discusses emotional well-being and the value of experience over acquisition. The report also discusses the importance of saving for retirement. The report identifies "4 stages of retirement leisure" from "winding down & gearing up" to "contentment & accommodation."
To read the full report, register with Merrill Lynch to download it.
Wednesday, June 1, 2016
The latest issue of Experience, the magazine of the Senior Lawyers Division of the ABA is devoted to elder driving. Eight articles are devoted to the issue of driving. The magazine also includes articles on estate planning, technology and ethics. The entire issue is available here. Links to individual articles are also accessible from here.
Tuesday, May 31, 2016
The annual American Society on Aging (ASA) conference is scheduled for March 20-24, 2017 in Chicago. The planning committee is now accepting proposals to present at the conference. For more information or to submit a proposal, click here. The deadline for submitting a proposal is June 30, 2017.
May 31, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)
Monday, May 30, 2016
The Association for Gerontology in Higher Education's (AGHE) annual conference is scheduled for March 9-12, 2016 in Miami, Florida. The call for abstracts for one of the six themes for the conference closes at noon on June 1, 2016. For more information, click here.
Thursday, May 26, 2016
We all know folks who are the glass half-full type (optimist), as well as the glass half-empty type (pessimist). When one talks to those folks, how those folks interpret what they hear depends on what "glass type" they are. The Journal of the American Medical Association (JAMA) ran a story about a study, Prevalence of and Factors Related to Discordance About Prognosis Between Physicians and Surrogate Decision Makers of Critically Ill Patients. According to the abstract, "[m]isperceptions about prognosis by individuals making decisions for incapacitated critically ill patients (surrogates) are common and often attributed to poor comprehension of medical information."
The authors noted how important it is for the health care surrogate to have information in order to make a health care decision for the patient. But, according to the study,
Numerous studies over the last 3 decades indicate that surrogates of patients with advanced illness often have optimistic expectations about prognosis. This is problematic because optimistic expectations are associated with more use of invasive treatments in dying patients and delayed integration of palliative care. Clinicians cite unrealistic expectations by surrogates as one of the most important barriers to high-quality end-of-life care in seriously ill patients.(citations omitted).
The authors look at some of the reasons for this disparity in viewpoint (including the lack of medical knowledge by surrogates). Here is one example of their findings regarding the disparity of views:
Physician-surrogate discordance about prognosis occurred in 122 of 229 instances (53%; 95% CI, 46.8%-59.7%). Among the 229 surrogates participating in the study, 98 (43%) were more optimistic than physicians and 24 (10%) were more pessimistic. Sixty-five instances (28%) were related to a combination of misunderstandings by surrogates and differences in belief between the physician and surrogate about the patient’s prognosis; 38 (17%) were related to misunderstanding only; 7 (3%) were related to different beliefs; and data were missing for 12.
The authors explore the reasons for the surrogates' glass half-full view and learned that the surrogates felt that a positive attitude: "would improve the patient’s outcomes or protect themselves from emotional distress"; was justified because they knew the patient better than the doctor, including knowing if the patient were a strong person; and/or was based on their religious beliefs.
The study also explored the glass half-empty views of surrogates. The study authors concluded that "[a]mong critically ill patients receiving care in ICUs, discordant expectations about prognosis were common betwTeen patients’ physicians and surrogate decision makers and were related to both misunderstandings by surrogates about physicians’ assessments of patients’ prognoses and differences in beliefs about patients’ prognoses."
The article is available here for free
The percentage of older Americans living below the federal poverty line has decreased by two-thirds since 1966. That year, according to data from the Pew Research Center, 28.5 percent of Americans age 65 and over were poor. By 2012, that number had declined to just 9.1 percent.
But we may be at the end of that happy trendline. I think that over the next five to 10 years we will see a dramatic reversal in the economic fortunes of millions of our oldest residents. That has profound implications for governments at all levels.
Discussing how we fund retirement (the 3-legged stool), the author notes the changes in pension plans, the low amounts saved and the higher amount of debt. This is not particularly new to those of us who teach elder law. But consider the following from the author:
You can put off retirement, and many are. The labor force participation rate for those 65 and older increased from 12.4 percent in 1994 to 18.6 percent in 2014. But you can’t put off aging. The collapse of incomes for this group when they no can longer work is going be a double hit for government, decreasing the taxes they pay just as they need more public services.
The author calls on local governments to be planning for this scenario: "the consequences of dramatic increases in the older poor, including looking at affordable housing, transit and health care." Noting the potential power of the ballot box, the author concludes "Given the size of the baby boom population, a return to the poverty rates that existed among aging Americans before the War on Poverty would result in more than 8 million newly impoverished seniors. They’re not going to sit quietly on a street corner with a tin cup."
Plaintiffs' Class Certified in Dispute over LTC Insurance Coverage for Care by "Managed Residential Communities" or "Assisted Living Services Agencies"
As we've reported fairly often on this Blog (see e.g., here, re California litigation), the long-term care insurance (LTCI) industry has been battling disputes on many fronts. One of the fronts is whether insurers can deny benefits to pay for care provided in settings other than "skilled nursing facilities." On March 1, 2016, a federal court in Connecticut granted class certification to estates and policy holders who are challenging denial of coverage for stays in "managed residential communities" (MRCs) in Connecticut or to cover services provided through "assisted living services agencies" (ALSAs). In Estate of Gardner v. Continental Casualty Company, 2016 WL 806823, the court agreed the plaintiffs had satisfied the class certification requirements for "numerosity," commonality, and typicality of issues, as well as establishing grounds to argue "imminence of injury" to support a claim for injunctive relief:
While Plaintiffs do seek monetary relief, it appears to the Court that what they primarily seek is forward-looking relief. Plaintiffs purchased long-term care policies, presumably with the expectation that they would utilize their coverage over a long term. Any adequate remedy would have to ensure that they could obtain coverage for claims prospectively. For that, an injunction is required. Moreover, Plaintiffs leave no ambiguity about the content of the injunction they seek: an end to Defendant's alleged policy of denying claims for assisted-living facilities across the board. This is exactly the type of relief Rule 23(b)(2) was designed to facilitate. Because Plaintiffs' proposed Rule 23(b)(2) class satisfied all of the requirements of Rule 23, certification is proper.
For more on the background of the Connecticut case, see "Connecticut class action accuses insurer of denying assisted-living claims."
Tuesday, May 24, 2016
On April 28, 2016, the Texas Court of Appeals affirmed an award of some $145k in damages to an elderly couple for breach of a "Life Care" contract by their residential community. In Barton Creek Senior Living Center, d/b/a Querencia at Barton Creek v. Howland, the residential community staff attempted to refuse to communicate with the children of a couple, in their 80s, on the reported grounds that "communication with their children was unworkable because of the discord with the children." The facility, Querencia, reportedly soon "terminated the Life Care Agreement with the Howlands and ordered them to vacate the premises within thirty days." The Howlands did vacate the premises, moving to an assisted living community with a different pricing and service structure; however, they contended they were denied the "benefit of their bargain" with Querencia.
On appeal, Querencia does not challenge the finding that it failed to comply with the Life Care Agreement, but contends that the evidence is legally and factually insufficient to support the damages awarded to Howland. Specifically, Querencia argues that the damages cannot be tied to the pre-termination notice being 30 days instead of [the contract's specified notice of] 60 days. It also contends that Howland does not deserve damages for assistive services used after termination that they were already using before termination. Finally, Querencia contends that it properly withheld ten percent of the Howlands' deposit pursuant to their contract.
The appellate court rejected these arguments with a textbook discussion of remedies for breach of contract necessary to protect the non-breaching party's expectation interest:
Although the Howlands employed private care providers while at Querencia, there is evidence that the Howlands' move to The Summit increased their monthly expenses because the monthly rent was higher at The Summit, it provided fewer services than Querencia, and services at The Summit were more expensive.... Howland claimed over a million dollars in damages, Querencia countered that Howland profited from the breach, and the jury awarded Howland $82,500 plus the unrefunded deposit. The evidence in the record supports the jury's exercise of its role as factfinder regarding the damages award. The evidence also supports the jury's award of $62,990 representing the portion of the Howlands' deposit that Querencia did not refund. Querencia asserts that it was entitled to retain ten percent of the Howlands' deposit under the terms of the Life Care Agreement. But the jury found that Querencia breached that agreement, and restitution is a permissible measure of damages for breach of contract.... The jury was empowered to and did decide that Querencia must compensate for its breach by returning the final ten percent of the Howlands' deposit.
The finding of breach appeared to have been predicated on the contract's specified grounds permitting termination, which included fairly standard provisions such as inability to meet medical needs, nonpayment by the residents, or a resident's breach of "policies and procedures" that create a situation that is "detrimental to the health, safety or quiet enjoyment of the community by other residents or the staff." The court appeared to be persuaded by the argument that Querencia failed to comply with a further contractual provision, mandating parties be given an "opportunity-to-cure" in the event of disputes.
Despite the affirmance on damages, the appellate court also set aside the trial court's award of $166k in attorney's fees for the plaintiffs, rejecting a "lodestar" argument for the award, and remanded the case for further proceedings on reasonable and necessary fees.
In reading the opinion (and the headnotes from Westlaw on the opinion, which refer to Querencia as a "nursing home"), I'm struck once again by the confusion that "continuing care" contracts, including so-called "life care" contracts, can cause for parties, although usually any landmines tend to affect resident rights, rather than providers. Thus, I would anticipate that in the future, providers worried about protecting their right to terminate relations with "troublesome" individuals, will attempt to beef up their "policies and procedures," to give clearer rights to refuse to communicate with troublesome family members of residents.
Friday, May 20, 2016
I had mentioned previously that I was looking at the Genworth annual cost of care survey. As a corollary, Genworth has information about who provides care, referred to as The Expanding Circle of Care. The website mentions the caregivers, with "[t]he Beyond Dollars Research reveal[ing] 5 key insights on the true impact of long term care." The Expanding Circle of Care Beyond Dollars 2015 explains the 5 "key insights" in the executive summary. The circle of care is explained as:
The financial, physical and emotional demands of providing care for a loved one can sometimes be more than a single caregiver can handle. The good news is that more family members are helping provide care. The opportunity to plan for the likelihood of needing long term care before a crisis situation occurs remains large. Our research has shown that a "Circle of Care" often forms around the care recipient, involving people who provide different levels and types of support.
The second insight is that although caregivers are positive about their role of caregivers, they note that "[c]aregiving can negatively impact health & well-being", including familial relationships and interactions with friends. The third insight is instructive regarding the future: "Caregivers’ savings and retirement funds are at risk"
Caregivers who help provide financial assistance for the care of their loved ones estimate that they pay, on average, a total of about $10,000 in out-of-pocket expenses.
That’s up from an average of $7,285 in 2010. Those financial expenses can include everything from household expenses, personal items, or transportation services, to payment of informal caregivers or long term care facilities.
Most caregivers did not anticipate or plan for this expenditure. In many cases, they are cutting back on personal spending and savings. More significantly, some may be jeopardizing their own financial futures.
It follows logically then that the fourth insight builds from the third one: "Caregivers’ careers and livelihoods are impacted by providing care." The caregivers who work reported a definite impact on their jobs, which in turn impacts the caregiver's bottom line. "Absences, reduced hours and chronic tardiness can translate into a significant reduction in a caregiver’s paycheck."
The executive summary is available here.
Thursday, May 19, 2016
While I was on the Genworth site looking at the looking at their annual Cost of Care survey findings, I noticed their simulated aging project, R70i Aging Experience. The Genworth R70i Aging Experience, according to the website "uses state-of-the-art technology to help people step into their future selves and directly experience the physical effects associated with aging. The experience reinforces the importance of thinking about future long term care needs and talking to loved ones about how they would like to age." The website offers interactive controls so the user can examine certain points of the "aging suit" as well as a video that shows how the suit functions along with a narration. This would be really cool if we could have one for our students to use, so they can experience it firsthand. (If anyone from Genworth is reading this and wants to donate one to us, I promise we'll share with other educational institutions :-))
Wednesday, May 18, 2016
We have blogged before about the idea of aging that is something to be "cured". The recent article in the New York Times explained some cutting edge research about fighting aging. Dogs Test Drug Aimed at Humans’ Biggest Killer: Age explains about a clinical trial with dogs that has implications for humans "the trial also represents a new frontier in testing a proposition for improving human health: Rather than only seeking treatments for the individual maladies that come with age, we might do better to target the biology that underlies aging itself." The drug being tested on dogs was previously tested on mice and "improved heart health and appeared to delay the onset of some diseases in older mice" but there is no guarantee that the same result will be achieved with dogs.
According to the article, age itself serves as a huge risk factor for a number of fatal diseases, so "[a] drug that slows aging, the logic goes, might instead serve to delay the onset of several major diseases at once." "Geroscience" that is "the study of aging’s basic biology" according to those quoted in the article, hasn't received a lot of attention. There's some genius in the approach of testing this drug with dogs, given American's love affair with their dog family members.
“Many of us in the biology of aging field feel like it is underfunded relative to the potential impact on human health this could have,” said Dr. Kaeberlein, who helped pay for the study with funds he received from the university for turning down a competing job offer. “If the average pet owner sees there’s a way to significantly delay aging in their pet, maybe it will begin to impact policy decisions.”
The article explains that research has been more "disease-specific" rather than globally looking at slowing down aging. Although the article does mention some projects that are specifically looking at slowing down or reversing aging. The article also explains the challenges for research in this field. What would be the results to humans if this research proves successful? A longer, healthier life. And if it isn't successful? Dr. Kaeberlein, explained: “I would argue we should be willing to tolerate some level of risk if the payoff is 20 to 30 percent increase in healthy longevity,” he said. “If we don’t do anything, we know what the outcome is going to be. You’re going to get sick, and you’re going to die.”
Sunday, May 15, 2016
We have posted before about family caregivers and their importance. AARP's May 10, 2016 blog post, Eldercare Primarily Concerns Older Workers and Their Employers, Right? Think Again, explained that "[f]or employers big and small, the need to support workers who also provide unpaid care for a family member is a growing reality." A huge number of family members who work (60%) also serve as family caregivers. Here's an important point about those 60%, slightly over 50% of them are at least 50 years old. But caregiving is not just an elder law issue, because there is a significant number of younger caregivers too. Almost three-quarters of millenials reported that they were caregiving and working. The blog post ends with the suggestion that
"[a]dvancing a culture of understanding about eldercare needs is especially important to help make the workplace more supportive of workers who are also family caregivers — many of whom are in their prime working years."
As reported in several financial news services, including McKnight's Long-Term Care News here, HCR ManorCare, owner/operator of a large number of skilled nursing and assisted living properties, is to be spun off by its corporate parent, HCP Inc., into the hands of "an independent real estate investment trust" called, appropriately enough, "SpinCo."
Certainly this seems to be a move to improve the financial position of HCP by separating the nursing home operations from independent living operations; it remains to be seen whether it also allows "troubled" HCR ManorCare to resolve concerns about quality of care and billing practices. The business history of ManorCare, with all of its various partners and name changes, probably serves as a marker for changes throughout the skilled care industry. For ManorCare's own perspective on its history, see "Our History Is Still Being Written."
Thursday, May 12, 2016
The latest issue of Biofocal from the American Bar Association Commission on Law & Aging is out, and the cover story is an article by Erica Wood on Evaluating the Capacity to Drive. Ms. Wood explores the question of what is the needed capacity to drive, and notes the skills one needs to be a safe driver.
[E]valuating capacity to drive is of course different from evaluating capacity to make decisions or execute legal transactions. First, driving involves a mix of mental, physical, and sensory abilities. Second, driving has serious risk not only for oneself but also for others as well. And third, the determination of capacity to drive initially rests not with a judge but with the commissioner of the state department of motor vehicles—although judges may well be involved in decisions about drivers licenses, as described in the “View from the Bench” by Judge Lyle. While state laws vary, the Uniform Vehicle Code provides that a license may be denied if the state commissioner finds that a person “by reason of physical or mental disability would not be able to operate a motor vehicle with safety upon the highways” (National Committee on Uniform Traffic Laws and Ordinances).
Using the ABA/APA handbook for psychologists "general capacity evaluation framework," Ms. Wood breaks down the assessment elements for capacity to drive: the legal element, the functional component, diagnosis, values, mental health assessment, risk assessment, and clinical judgment that is needed in order "to integrate all of the evidence from the previous steps on supports, conditions, risks, abilities and limitations." The article underscores the need to examine the driver's values, consider emotional factors such as hallucinations and whether the person has capacity with support. Capacity with support is explained as "supports and accommodations that might enhance ability."
In the driving context, this might mean a change of eyeglasses, a higher seat or pillow, a revolving seat, or pedal modifications. With such supports, a functional assessment will test for visual acuity; flexibility to look behind and check blind spots on the road; and strength for control of the steering wheel, brakes, accelerator, and clutch. An assessment also will test the driver’s knowledge about driving rules and what to do in emergency or unexpected situations.
A pdf of the article is available here.
Wednesday, May 11, 2016
On May 6, 2016, the New York Times ran an article by Paula Span for the New Old Age series, Finding Out Your Power of Attorney Is Powerless. Experienced elder law attorneys are unlikely to be surprised by the point made in the article: financial institutions want customers to use their own powers of attorney, not one drafted by the customer's lawyer. The article notes this is "very unwelcome news, because by now the older account holders may not be competent to sign legal forms." One frustrated customer offered this insight "[w]e have a power of attorney, but we can’t use it ... People sign these anticipating incapacity. Once incapacity arrives, it’s too late to sign another one.”
As the article notes, this isn't a huge revelation to elder law attorneys but "[i]t’s not clear how often similar scenarios, with their Catch-22 absurdity, take place." The article offers the other side of the issue, from the financial institution's perspective, since these institutions are in charge of the customer's money, and everyone knows about the increase in financial exploitation, issues with diminished capacity of customers and family members who are the perpetrators. But notes one expert, "banks have other motivations, too. 'Typically, when they’re insisting on their own forms, they’re concerned about liability,'”
The article offers suggestions-have a lawyer intercede with the financial institution or be proactive and "ask... a brokerage or bank if it requires its own durable power of attorney document and, if it does, having your relatives sign it when they are still capable of doing so. You’ll have to do this for every institution where they have an account." There is a big caveat with this second suggestion, according to the article, quoting Craig Reaves, a past president of NAELA: "read those bank forms carefully or have a lawyer review them, Mr. Reaves advised. They can contain disadvantageous indemnity or arbitration clauses, or provisions that contradict the individual’s general power of attorney. In such cases, 'I’ll tell clients not to sign, and we’ll fight the fight,' he said." Some family members caught in the catch-22 came up with their own solutions, such as opening accounts at other financial institutions or waiting until the parent is having a "lucid moment" to sign the bank's form.
It's hard to explain to students why a financial institution refuses to accept a legally valid DPOA drawn by an attorney. This article sheds some light on the problem, but clearly, it's still a problem.
Tuesday, May 10, 2016
Let's just start by saying the article I'm about to cite is a must-read for us.
The AP did a story on May 8, 2016, Nursing homes turn to eviction to drop difficult patients. The article opens "Nursing homes are increasingly evicting their most challenging residents, advocates for the aged and disabled say, testing protections for some of society's most vulnerable...Those targeted for eviction are frequently poor and suffering from dementia, according to residents' allies. They often put up little fight, their families unsure what to do. Removing them makes room for less labor-intensive and more profitable patients, critics of the tactic say, noting it can be shattering."
The AP did a study of data from the Long-Term Care Ombudsman Program and learned that complaints regarding involuntary discharges have increased by about 57% since 2000. "[Discharge] was the top-reported grievance in 2014, with 11,331 such issues logged by ombudsmen, who work to resolve problems faced by residents of nursing homes, assisted living facilities and other adult-care settings." Why this increase in discharges? The article offers that the involuntary discharge often happens "because the resident came to be regarded as undesirable — requiring a greater level of care, exhibiting dementia-induced signs of aggression, or having a family that complained repeatedly about treatment, advocates say. Federal law spells out rules on acceptable transfers, but the advocates say offending facilities routinely stretch permitted justifications for discharge. Even when families fight a move and win an appeal, some homes have disregarded rulings."
The American Health Care Association offers an opposing view of the discharges, explaining that in some cases it is "lawful and necessary to remove residents who can't be kept safe or who endanger the safety of others, and says processes are in place to ensure evictions aren't done improperly."
The article also includes examples where a resident is admitted to a hospital and when ready to return to the nursing home, is refused readmission. Several cases are highlighted in the article, with experts from both sides of the issue offering opinions. The article also references staffing levels and the trauma encountered by residents who find themselves in a discharge situation.
Have your students read the applicable federal statute and then this article. I guarantee an interesting discussion.
Monday, May 9, 2016
The May 2016 issue of the South Carolina Bar Journal, SC Lawyer contains the article, Quick and Dirty Tips to Prevent Power of Attorney Abuse. The author offers several tips, starting with meeting with the client alone, determine if the client has capacity to sign the DPOA, ascertain the client's goals and expectations, "name an honest, trustworthy and trusted agent" (the author suggests the attorney "[google the agent and check your local court judgment index"); consider co-agents; use a springing POA; include an accounting provision to require the agent "to account in some fashion to a family member(s) or other trusted individual. It can be as formal or as informal as the principal desires. In that way there is another person informed about the principal’s financial situation" and even using a "cooling off" period for the client to think further before signing the DPOA.
The article also covers actions when the agent misuses the DPOA. The article concludes
There is no easy answer to the problem of elder financial abuse. There is no silver bullet. Elder financial abuse is a problem that is only going to get worse. We as attorneys can’t prevent all financial abuse, but we need to be aware of, and adopt, measures that reduce the risk of durable power of attorney abuse. The threat can never be eliminated, but with communication and education, it can be minimized.
Thanks to the article's author, Michael J. Polk, for sending me the link to the article.
May 9, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Statutes/Regulations | Permalink | Comments (0)