Wednesday, December 4, 2013
Writer Kim Severson at the New York Times reports on the death of 72-year old Ronald Westbrook, shot by Georgia homeowner Joe Hendrix after trying to gain entrance to Hendrix's home:
"In the confusion that comes from Alzheimer’s, Mr. Westbrook had taken to collecting the mail from neighbors’ mailboxes. He was doing so that night on Marbletop Road, which is a mile or so from his home. He told the deputy he lived in a nearby house, which at one time, years ago, he had. 'Better get home,' the deputy said. 'It’s cold.'
The deputy drove on, and Mr. Westbrook, in a straw hat and a jacket too light for the weather, continued walking with his dogs. Just before 4 a.m., he was nearly three miles from home in the subdivision of modest new houses where Mr. Hendrix lives, near Chattanooga."
While the NYT story focuses mostly on the fear, confusion, and potential impact of Stand Your Ground laws, as factors potentially contributing to the older man's death, I am reminded of another story I blogged about earlier, where a wandering man with early onset dementia ended up in jail, only to suffer a brutal beating at the hands of a cellmate when authorities failed to recognize the implications of the man's confusion. Ironically, that case too was in Georgia.
In both instances, it seems that public authorities arguably had a chance to shepherd their wandering citizens to a safer setting.
Tuesday, December 3, 2013
USA Today continues reporting on criminal misuse of resident funds held in accounts at nursing homes, pointing to the lack of clear laws requiring faculities to conduct audits or other oversight systems for resident accounts:
"Federal law provides the regulatory framework for the nation's 16,000 nursing homes, which have to meet an array of standards to participate in Medicare and Medicaid. Federal rules do not require audits for resident trust fund accounts, and most states take the same approach.
The U.S. Centers for Medicare and Medicaid Services, the federal agency responsible for nursing home regulation, is considering whether additional oversight is needed to address theft and mismanagement of residents' funds.
'We are aware of this situation and are reviewing the (inspection) procedures used to detect these kinds of problems,' agency spokesman Aaron Albright said when asked about USA TODAY's findings. 'CMS takes safeguarding nursing home patients very seriously.'"
Tuesday, November 26, 2013
While working in Europe, I first heard the label "befrienders," as applied to people who work their way into the lives of disabled or elderly persons. The relationship often starts with the befriender doing small, helpful tasks; over time, the helper gains trust that enables him or her to have a greater role in the elder's life, thus opening the door to exploitation of the person's diminishing powers of judgment, while gaining complete control over finances.
On November 5, the New Hampshire Supreme Court affirmed convictions on nine of eleven criminal counts for "befriender" Karen Gagne, accused of stealing over $500,000 from a ninety year old woman in a retirement center. The case is State of New Hampshire v. Karen Gagne, 2013 WL 512499 (2013).
I plan to write more in the future about the technical details of the crimes charged in this context, but one of the clear lessons from the history in this particular case is how much time it may take for the befriending pattern to develop and "ripen" into fraud that is recognized by third-parties. For example, Karen Gagne's involvement with the victim spanned years:
"The defendant met the victim in the 1980s when the defendant performed landscaping services at the victim's home. The two became friends and subsequently lived together as companions in the victim's home for at least one year until the victim asked the defendant to move out. In the summer of 2006, the defendant and the victim rekindled their friendship. The victim moved to Pleasant View Retirement Home (Pleasant View), and the defendant began driving the victim to doctors' appointments and nail appointments, and taking her to lunch. In addition, although the victim had previously had an accountant pay her larger bills, the defendant began handling the victim's bills, including payment of her rent at Pleasant View."
At some point, "helpful" friend Gagne began liquidating the elder woman's annuities or other property and borrowing additional money under the elder's name.
The fact that Gagne was giving herself gifts might not have been discovered, except that by the fall of 2008, Gagne was no longer making regular rent payments to the retirement home. She offered excuses, such as blaming a "grandson or nephew" for stealing money, and claimed that she, Gagne, was trying to "recover" the money in order to pay the victim's bills. By late 2009, the victim was so far behind in rental payments -- and the excuses had become so unbelievable -- that the facility's executive director contacted the Attorney General's office, thus leading to the criminal charges.
Having sat through trials of similar cases, and having read transcripts of other cases, I can just imagine how Gagne would try to justify her thefts, arguing that "her friend wanted her to have the money" to explain why the 90-year old woman had "signed" checks she wrote out for her. In fact, this "gift" argument actually worked as a defense to two of the criminal counts in the case, where the older woman had personal involvement in transactions. Nonetheless, on the majority of criminal counts, the Supreme Court concluded "the defendant was not privileged to infringe upon the victim's interest" in joint accounts, nor was Gagne justified in misapplication of funds she was handling as a "financial representative" of the elder.
Karen Gagne was originally sentenced to "an aggregate of 10 to 30 years in New Hampshire State Prison for Woman." It is not clear from the opinion whether remand on the overturn of two of the elevent counts would trigger a resentencing.
New Hampshire, by the way, is the state that recently passed a new law, permitting long-term care facilities to sue "fiduciaries" who misuse assets of a resident, if that misuse results in "disqualification" of the resident for Medicaid, as we discussed earlier this month.
Tuesday, November 19, 2013
This semester in Penn State's Elder Law class, I encouraged students to write one of their two required short papers on some aspect of the "future of elder law," in the largest sense of that phrase. Several students examined technology and aging, including use of video technology to monitor care or provide tracking of medication or movement. One student's paper is about due process implications of monitoring for staff and family members.
The future is now, of course, in the world of video technology, especially in a CCTV world of almost constant surveillance. The New York Times reports another dramatic example of abuse as caught on "granny cams" used in a nursing home. In "Watchful Eye in Nursing Homes," writer Jan Hoffman details examples of abuse bordering on torture caught on video at an Oklahoma nursing home.
The article points to the trend in state legislation or regulations expressly authorizing video monitoring, laws that attempt to strike a balance between potential rights of privacy and safety:
"On Nov. 1, propelled by the outcry over the Mayberry case, Oklahoma became the third state — along with New Mexico and Texas — to explicitly permit residents in long-term care facilities to maintain surveillance cameras in their rooms. In the last two years, at least five states have considered similar legislation. Although some states have administrative guidelines for electronic monitoring, most legislative efforts have stalled because of questions about liability and, in particular, privacy rights, raised by facility owners, unions, elder care lawyers and families."
Our friend and colleague, Nina Kohn, elder law professor extraordinaire at Syracuse Law, is quoted in the article on the need for caution in implementing surveillance.
Thursday, November 14, 2013
Via the Senate Special Committee on Aging:
If you or someone you know suspect you’ve been victim of a scam or fraud aimed at seniors, the U.S. Senate Special Committee on Aging has set up a new toll-free hotline to help. The hotline was unveiled today to make it easier for senior citizens to report suspected fraud and receive assistance. It will be staffed by a team of committee investigators weekdays from 9 a.m. to 5 p.m. EST. The investigators, who have experience with investment scams, identity theft, bogus sweepstakes and lottery schemes, Medicare and Social Security fraud, and a variety of other senior exploitation issues, will directly examine complaints and, if appropriate, refer them to the proper authorities.
Anyone with information about suspected fraud can call the toll-free fraud hotline at 1-855-303-9470, or contact the committee through its website, located at http://www.aging.senate.gov/fraud-hotline. As chairman and ranking member of the committee, Sens. Bill Nelson (D-FL) and Susan Collins (R-ME) have made consumer protection and fraud prevention a primary focus of the committee’s work. This year the panel has held hearings examining Jamaican lottery scams, tax-related identity theft, Social Security fraud and payday loans impact on seniors.
The hotline’s unveiling also coincides with the committee’s launch of an enhanced senior-friendly website. The site’s new features include large print, simple navigation and an uncluttered layout that enables seniors to find information more easily and conveniently. Online visitors can also increase text size, change colors or view a text-only version of the site.
Sunday, November 10, 2013
So-called "Slayer Rules" bar a murderer from inheriting from his victim, and often apply not only to intestate succession but also to gifts made under wills or nonprobate transfers. The bar may arise by common law, often rooted in equity, or statute.
As Harvard Law Professor Robert Sitkoff summarizes well in his 9th edition (Dukeminier) of Wills, Trusts & Estates, "Nearly every state has enacted a statute dealing with the rights of a killer in the estate of a victim, but the details of these statutes vary considerably and often leave gaps to be resolved by the courts."
However, states have also been expanding the notion of "no profit" from wrongdoing to include abusers -- and theories regarding elder abuse appear to be part of the reason.
For example, in a 2013 case, the Washington Supreme Court analyzed application of a 2009 amendment of that state's slayer statute to include "abusers," defined as "any person who participates, either as a principal or an accessory before the fact, in the willful and unlawful financial exploitation of a vulnerable adult." The court concluded in a 5-4 decision that the date of filing of a petition to declare a beneficiary an abuser serves as the trigger for timing questions.
The Washington case involved allegations made by three surviving children against their father's second wife. The father was in his late eighties when he married the younger woman, who was younger by fifty years. The history of the case includes a discussion of the father's dementia, and allegations the wife made large transfers to herself and others before his death. See In re Estate of Haviland, 301 P.3d 31 (Wash. 2013).
In 2012, Michigan amended its slayer statute to include abusers, as part of a series of changes to state laws reportedly intended to provide better protection for elderly and vulnerable adults. Cooley Law Professor Linda Kisabeth analyzes the Michigan changes in her recent article "Slayer Statutes and Elder Abuse: Good Intentions, Right Results? Does Michigan's Amended Slayer Statute Do Enough to Protect the Elderly?" in 26 Quinnipiac Prob. L. J. 273 (2013).
And for an interesting alternative take on slayer laws in their more traditional application, to "murderers," see the 2013 article by Professor Carla Spivack (Okla.City Law), "Killers Shouldn't Inherit From the Victims -- Or Should They?"
Hat tip to Professor Harvey Feldman for pointing the way to the Washington case.
November 10, 2013 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 5, 2013
In the "Oh, Good Grief" category of books I've seen offered for sale, a Pennsylvania estate planning attorney who has reportedly entered into a plea agreement on federal charges, after being accused of stealing some $3 million from clients including the elderly, has just released a self-published book. The title, "Courage for the Journey: Wisdom from the Broken Road," seems a bit ironic, but the description of the author as a "proud survivor of many of life's broken roads" who "cherishes each scar and dent" is down-right startling. The author was reportedly disbarred in February 2013.
According to this week's news reports, the author's plea agreement, if accepted by the court, will require her to repay the victims of her crimes.
Pharmaceutical giant Johnson & Johnson will plead guilty to a criminal misdemeanor and pay $2.2 billion, thus concluding a long federal criminal investigation into the company's alleged marketing of certain antipsychotic drugs for off-label, unapproved uses, including allegations the drugs were promoted for use by the elderly with dementia.
The original charges flow from whistleblower reports under the False Claims Act, involving Risperdal and other drugs. Details of the deal are widely reported in the New York Times, Bloomberg and the Justice Department has issued a press release.
Friday, October 25, 2013
Earlier this week, I posted an update about state law reform movements regarding Powers of Attorney, including the Uniform Power of Attorney Act of 2006 (UPOAA), which so far has been adopted in 13 states and is currently under consideration in Pennsylvania and Mississippi.
I've been getting very interesting responses, and I'll try to capture some here in the blog as I have time. To start things rolling, I'll share some thoughtful comments from Robert Slutsky, a Pennsylvania attorney who focuses his practice on elder law, estate planning and administration, guardianships and real estate . He's also a '92 grad of the Dickinson School of Law, so he's been doing this awhile. He gave me permission to excerpt his emails.
In writing to me, Robert said he was adopting the role of devil's advocate. Certainly turn-around is fair play for graduates with law professors! Based on his experiences, he worries about law reform efforts that could make POAs less useful to the majority of people who use them properly. Restrictions could be penalizing the wrong people. As he puts it succinctly, "Occasional problems with POAs result from evil people who know what is right and wrong and choose to do wrong.... Trying to solve a problem caused by bad people by restricting those who use POAS properly is ineffective and counterproductive."
Robert also serves as the solicitor for a county adult protective services unit, and he does see instances of financial exploitation, although he says he sees more cases of caregiver neglect or self neglect. That observation is consistent with annual reports in Pennsylvania and elsewhere. Unfortunately, data on abuse is not regularly collected or evaluated on a national level, as discussed in the July 2013 GAO Report to Congress on "Elder Justice: More Federal Coordination and Public Awareness Needed."
Robert Slutsky says that even when he sees financial abuse, it "rarely" involves POAs as the tool to victimize older persons. He also warns that while a prosecutor may view a case of a child using a elderly parent's money as "abusive," a full history may show a long pattern of parental approval or tacit permission, and thus with families it can often be a "gray area" regarding permitted use.
Thank you, Robert.
Readers, feel free to add your comments, either to the original post or below.
Wednesday, October 23, 2013
Following last week's USA Today article exposing thefts by nursing home employees from resident trust accounts, Senator Bill Nelson, chair of the U.S. Senate Special Committee on Aging, has called upon the Inspector General to investigate management and oversight practices and to reommend corrective action by the Centers for Medicare and Medicaid (CMS). CMS has oversight authority over nursing homes.
In a letter dated October 21, Senator Nelson targets the absence of standard protocals for safeguarding such accounts:
"Widespread negligent oversight allowed some of these theft and embezzlements schemes to go on undetected for years, and in some instances the losses totaled more than $100,000. Several of these trust fund culprits were caught merely by accident or due to the suspicions of a co-worker, and not by systematic financial auditing or tight management controls."
If, as the saying goes, no good deed goes unpunished, no bad deed by a nursing home goes uninvestigated by Congress. Stay tuned, but don't hold your breath.
Thursday, October 17, 2013
I have to admit that I pass over a fair number of opportunities to write in this Blog about problems in nursing homes. Experience tells me that nursing homes are on the front lines of the care battle, are heavily regulated (for good reasons), and are trying to do a tough job with ever decreasing resources. There are problems, but the problems also exist with other forms of facility-based care that don't receive the same attention by regulators and the media.
But today's USA Today's article on "Thefts From Nursing Home Trust Funds Target the Elderly," addresses a form of abuse that is particularly troublesome, in part because it should be darn easy to prevent with proper accounting safeguards for client funds. Here's the opening to the story:
"The administrator at the Vicksburg Convalescent Center knew something was wrong when she saw the receipt: a $90 debit from a resident's trust fund account for a pair of designer jeans.
Of all the elderly residents at the 100-bed nursing home, Amy Brown figured, this one was especially unlikely to spend his savings on pricey pants.
Both of his legs had been amputated."
As Kim Dayton reminds us in her separate post, "October is Residents' Rights Month." Of course, abuse is wrong on any day of the year.
Wednesday, October 2, 2013
Designing Laws re Protection of Older Persons from Abuse (and writing on a "clean slate" in 2013): What Would You Include?
Recently I have the privilege of joining an international, interdisciplinary team of academics and practitioners working on new legislation for protection of adults, especially older adults, from abuse, neglect and financial exploitation. I hope to report more about our work in the future.
At our first meeting, I was interested to hear the commonality of themes between the U.S. and other countries involved in the research. Aside from the basics, which include definition of terms and scope of duties to report, two themes struck me as persistent and tough, despite each country's efforts to tackle the problems:
- First, whether initial reports of suspected abuse should go to a "civil" investigatory agency, or also to traditional law enforcement (police, garda, gendarmes, sheriffs, etc.).
- Second, the challenges of determining capacity of the possible victim to consent to the investigation (or to accept, for lack of a better word, the consequences of suspected abuse).
Perhaps you have individual concerns about the effectiveness (or ineffectiveness?) of adult protective service laws in your jurisdiction.
We'd love to receive your comments.
Friday, September 20, 2013
Last summer, great friends from Ireland were visiting in Pennsylvania. At the end of an evening's gathering, Clare, Joe or one of their sons would often wish me "Safe home." What a warm salutation -- for everyone.
Thinking more about the Goodman case from my earlier blog post, one question is whether all options were explored by the police, short of arrest. It is hard to accept that the man's arrest for "loitering" was the only solution available. Here was an individual whose confusion and late night wandering merely led him to the wrong house. In many jurisdictions, including the state in question, the crime charged, loitering, has been held unconstitutional as applied. But however wrong the crime charged in this case, shouldn't there be better options for "safe home?"
At least one option does exist: MedicAlert joined with the Alzheimer's Association to offer "Safe Return," a 24-hour emergency response service for persons with Alzheimer's or other cognitive impairments. The program works in two directions: The worried family member or caregiver can call a toll-free number to report the missing person, providing a source of reliable information for law enforcement about the individual's condition, health concerns and family. Plus, anyone encountering a wanderer who is wearing a MedicAlert bracelet or other ID can call the same toll-free number, thus initiating return to the "safe home."
The MedicAlert+Alzheimer's Association's Safe Return program (names are trademarked) charges an initial fee for the identification jewelry and registration, plus a smaller annual renewal fee. (Any possibility for a lower initial fee for those in need?) Perhaps health care professionals and elder law attorneys could offer this type of information to families during initial appointments.
Tuesday, September 17, 2013
While preparing for a Neurology Grand Rounds presentation on "Dementia and the Law" at Penn State Hershey, I read the 11th Circuit's decision in Goodman v. Kimbrough, affirming summary judgment in favor of defendant jail officials. The June 2013 decision in this civil rights claim has me asking questions. I suspect the case could provide opportunities for important discussion in a large number of law school courses. As our blogging partner Becky Morgan would say, an opportunity for teaching elder law "across the curriculum," although a pretty disturbing opportunity.
Basic facts: A 67-year-old man "suffering from dementia and prone to disorientation and confusion," was severely beaten by his cell mate while detained in a jail in Clayton County, Georgia. Why was he in jail? He apparently wandered away from his home at night, became confused, and "attempted to gain entry to another trailer." No indication in the opinion of breaking and entering. No indication in the opinion of violence. The man was "arrested for loitering and brought to the Jail." That bears repeating: "loitering."
The man's wife of more than 30 years, after awakening to find her husband gone, called 911 and learned of her husband's arrest. She went to the jail and "showed the officer at the second-floor desk her husband's medical records, explained that he was cognitively impaired and showing signs of dementia." Further, the wife:
"asked the officer to ensure that her husband received his medication and that he be placed either in the infirmary or in isolation so that he would not unintentionally insult another inmate and thereby come into harm's way."
While the timing of some events is not clear from the opinion, on the critical morning in question, when the jail officials opened the man's cell at 5 a.m. to deliver breakfast, they found him "covered in blood," with contusions on his face, eyes swollen shut, and the cell "laden with blood." His injuries were severe, requiring hospitalization in intensive care. Eventually, the jail's investigation determined the man had been beaten by his cell mate.
The 11th Circuit opinion criticizes the conduct of the jail guards in failing to make required hourly cell checks throughout the night and reportedly deactivating the emergency button of another detainee who testified he tried to alert the guards to the sound of the fight coming from the cell. In affirming summary judgment, the court concluded, however, that the plaintiff failed to offer the necessary evidence that the two guards "subjectively knew of a substantial risk of serious harm."
As I continue my preparation to talk with medical professionals about dementia and the law, I keep coming back to the question: "What if this man were your father or husband?" As our population ages and families struggle 24/7 to cope with dementia while keeping loved ones at home, we need better understanding of the condition at all levels. At a minimum there needs to be much better communication about dementia in the criminal justice system, especially if there is to be any justice from the system.
Friday, September 13, 2013
With Congressional members returning to D.C. following the summer recess, is there any hope they can accomplish the uncontroversial act of voting to reauthorize the Older Americans Act (OAA), first enacted in 1965? The landmark law provides federal funding and creates the infrastructure for the delivery of critical social services such as meals, caregiver support, protection from elder abuse, and job training services to help seniors maintain independence in their homes and communities. However, Congressional gridlock has allowed complete reauthorization and updates to languish since 2011.
The latest reauthorization legislation was introduced by Senator Bernie Sanders (I-Vt) earlier in 2013, with details available here.