Wednesday, November 18, 2015
Washington State Elder Law Attorney Margaret Dore has shared with us her interesting analysis of "California's Assisted Suicide Law: Whose Choice Will It Be?," published here in JURIST, the on-line platform by University of Pittsburgh Law. She criticizes California's new law as inviting misuse, including elder abuse, observing:
The bill, ABX2-15, has an application process to obtain the lethal dose, which includes a written lethal dose request form with two required witnesses. Once the lethal dose is issued by the pharmacy, there is no oversight over administration. No one, not even a doctor, is required to be present at the death.
ABX2-15 allows one of the two witnesses on the lethal dose request form to be the patient's heir, who will financially benefit from the patient's death. This is an extreme conflict of interest. Indeed, under California's Probate Code, similar conduct (an heir's acting as a witness on a will) can create a presumption that the will was procured by "duress, menace, fraud or undue influence." ABX2-15, which specifically allows the patient's heir to be a witness on the lethal dose request form, does not promote patient choice. It invites duress, menace, fraud and undue influence.
Further, she notes the potential trauma for family members, citing examples from her practice:
Two of my clients, whose fathers signed up for the lethal dose in Washington and Oregon, suffered similar trauma. In the first case, one side of the family wanted the father to take the lethal dose, while the other side did not. The father spent the last months of his life caught in the middle and torn over whether or not he should kill himself. My client, his adult daughter, was severely traumatized. The father did not take the lethal dose and died a natural death. In the other case, it is not clear that administration of the lethal dose was voluntary. A man who was present told my client that the client's father had refused to take the lethal dose when it was delivered, stating: "You're not killing me. I'm going to bed." But then took the lethal dose the next night when he was already intoxicated on alcohol. My client, although he was not present, was traumatized over the incident, and also by the sudden loss of his father.
Ms. Dore is a former Chair of the Elder Law Committee of the American Bar Association Family Law Section. She is also president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia.
Thursday, November 12, 2015
Renowned Cornell educators and specialists in geriatric medicine, Mark S, Lachs, M.D., and Karl A. Pillemer, PhD, have an important review essay in the current issue of the New England Journal of Medicine on "Elder Abuse" (linked above). The authors articulate roles for physicians and health care staff as the first line of help for many older persons who are victims of elder abuse, including the "virtual epidemic" of financial exploitation. From the introduction:
In the field of long-term care, studies have uncovered high rates of interpersonal violence and aggression toward older adults; in particular, abuse of older residents by other residents in long-term care facilities is now recognized as a problem that is more common than physical abuse by staff. The use of interdisciplinary or interprofessional teams, also referred to as multidisciplinary teams in the context of elder abuse, has emerged as one of the intervention strategies to address the complex and multidimensional needs and problems of victims of elder abuse, and such teams are an important resource for physicians. These new developments suggest an expanded role for physicians in assessing and treating victims of elder abuse and in referring them for further care.
In this review, we summarize research and clinical evidence on the extent, assessment, and management of elder abuse, derived from our analysis of high-quality studies and recent systematic studies and reviews of the literature on elder abuse.
One of the perhaps surprising observations in the article is that the "young-old" actually have a higher potential to become victims of abuse than the "old-old," in part because they are most likely to be living under the control of a spouse or adult child, the most often-identified perpetrators.
Further, the authors advise that "the most important tasks for the physician are to recognize and identify elder abuse, to become familiar with resources for intervention that are available in the local community, and to refer the patient to and coordinate care with those resources." The article includes community services and organizations that may provide help to victims.
I was especially interested to see the authors' thoughts on the importance of interdisciplinary teams, especially given my own law school's current involvement in creating a Medical Legal Partnership Clinic. The authors write:
The most promising response to the complex nature of cases of elder abuse has been the development of interprofessional teams. Evidence suggests that interprofessional teams, also referred to as multidisciplinary teams, consisting of physicians, social workers, law-enforcement personnel, attorneys, and other community participants working together in a coordinated fashion, are the best practical approach to assisting victims.
Our thanks to "devoted reader" Professor Dick Kaplan, University of Illinois Law, for providing us with early notice of this important article.
Wednesday, November 11, 2015
In the October 2015 issue of the Pennsylvania Bar Quarterly, attorney Owen Kelly reports on "The Pennsylvania Supreme Court Elder Law Task Force Report and Recommendations" as a "Blueprint for Justice." His overview provides:
Our Commonwealth is in the midst of a period of unprecedented growth in its elder population and this growth is projected to continue for the foreseeable future. The growing elder population will present profound challenges to the Commonwealth's courts, particularly with respect to guardianships, abuse and neglect, and access to justice. In April 2013, the Pennsylvania Supreme Court established the Elder Law Task Force to address the impact this growing segment of the population will have on the judicial system. In November 2014, the Task Force issued its report which contained a multitude of recommendations on a variety of issues related to elders' interactions with the court system. Since their creation on January 1, 2015, the two entities charged with overseeing implementation of the Task Force's recommendations -- the Office of Elder Justice in the Courts and the Advisory Council on Elder Justice in the Courts -- have been actively implementing many of the recommendations. Task Force recommendations implemented or in progress include: proposed new and revised guardianship forms; education and training initiatives; proposed changes to the Rules of Criminal Procedure; revising bar admission rules to allow retired or voluntarily inactive attorneys to provide pro bono services for elders; a study of a pilot Elder Court; and changes to the statewide electronic case management system to allow for better monitoring of guardianships.
As someone who was a member of the Task Force, I am glad see that concrete steps are underway to implement changes, especially with respect to better accountability for guardianships on a state-wide basis. Much work is ahead.
Thursday, October 8, 2015
Healthline News ran a story that made me sad, even though I know these scams happen. Growing Kind of Elder Abuse: Marrying Seniors for Their Money ran on September 15, 2015. The article quotes a California attorney whose firm handles financial exploitation cases who "[said] marrying for money is a form of elder abuse that is spreading throughout the United States." The attorney noted that this type of financial exploitation case is often unreported and hard to uncover. These "sweethart scams" happen to both sexes about equally. The article quotes the deputy director of the National Center on Elder Abuse (NCEA) that
[W]hile these scams can take many forms... a common scenario is that the elders have experienced a recent loss, such as the death of a spouse, and they find themselves befriended by someone younger.
“If children aren’t nearby or the person is isolated and depressed, they’re more vulnerable to this attention.... The difficult thing is that if the older adult has capacity to make decisions then they are entitled to do what they want with their money.”
The article provides some examples of actual cases and the variation among the states on capacity to marry as well as what actions to take if the elder is a victim of this scam.
Wednesday, October 7, 2015
I previously posted a new article from Consumer Reports on the cost of financial exploitation. Consumer Reports also ran an article about whether elder abuse is preventable. Lies, Secrets, and Scams: How to Prevent Elder Abuse. Seniors and their families lose billions of dollars each year to heartless fraudsters. Learn how you can help ran September 28, 2015. The article opens with a victim of the grandparent scam. Looking at the proliferation of financial exploitation, the article notes
Estimates of the crime’s frequency vary. A 2010 survey of seniors by the nonprofit Investor Protection Trust projected that 1 in 5 seniors had been taken advantage of financially. A study last year in the Journal of General Internal Medicine found that 4.7 percent of Americans—about 1 in 20—reported that they had been financially exploited in their later years. The study provided perspective: If a new disease struck that same percentage of older Americans, researchers wrote, “a public health crisis would likely be declared.”
The article discusses why elders are targets "[o]lder people’s vulnerabilities—including isolation, loneliness, generally trusting natures, relative wealth, and in some cases declining mental capabilities—make them ideal quarry for con artists. Even those whose cognition is intact can be swayed if they’re stressed or depressed, or recently have lost a loved one." The article paints a bleak picture regarding projection, noting that s "as baby boomers age, the pool of potential victims will expand, with assets ripe for the pickpocketing." The article reviews the reasons why victims may not report the exploitation, how the perpetrators work a scam and why some victims are exploited multiple times.
The article covers some successes when the victims (or families) report the crime and initiatives to fight elder abuse, mentioning specifically the DOJ elder justice initiative. The article concludes with photos and summaries of stories of 8 victims and a list of agencies that may help.
Tuesday, October 6, 2015
Does the amount $3 billion shock you:? What about $36 billion? According to an article in Consumer Reports, Financial Elder Abuse Costs $3 Billion a Year. Or Is It $36 Billion?, the exact amount is unclear. Here's how the $3 billion figure came about, according to the story:
When Consumer Reports recently reported on elder financial fraud, Lies, Secrets, and Scams: How to Prevent Elder Abuse, we used the number $3 billion. It comes from a study published in 2011 by the MetLife Mature Market Institute, in collaboration with the National Committee for the Prevention of Elder Abuse and the Center for Geronotology at Virginia Polytechnic Institute and State University. We rounded up from that study's estimate of $2.9 billion annually....
We chose that figure because a number of experts we interviewed thought it was a credible figure. But they—and an author of the study—admitted to us when we first reported it a couple of years ago that the figure probably represents the tip of the iceberg. The figure is probably far larger than that.
We have all heard the tip of the iceberg analogy with the number of cases of elder abuse, since we know that elder abuse cases are under-reported. The article goes on to explain the $36 billion figure which came from TrueLink which "projected that financial elder abuse costs families more than $36 billion a year," Their study used a more expansive view of financial exploitation, including fraud and scams as well as financial exploitation. The article notes that Investor Protection Trust estimates that 20% of elders have been victims.
The author of the article explains the title.
Though the article focuses on financial exploitation at the hands of strangers, the headline encompasses abuse by all types of con artists, including family members and people the senior knows. When discussing stranger-initiated abuse, we couldn't arrive at a figure that made sense to us. Experts I consulted through a listserve used by professionals in the elder-abuse prevention and treatment community couldn't agree on a figure themselves. However, several professionals I interviewed said they were comfortable with saying it was in the "billions."
The point of this difficult exercise is that no really one knows how big the problem is. But clearly, it's huge. And until seniors feel comfortable reporting their victimization—and there's a standard way to define it and a central place to report it—we'll never know the total impact. Here's hoping that day comes, so the individuals working to help victims and prevent the crime can get the attention and resources they deserve.
Assign this article to your students. It illuminates a number of the issues in these cases. Regardless of whether the total is $3 billion or $36 billion, the numbers are shocking.
Monday, October 5, 2015
DOJ's Elder Justice Initiative & Office for Victims of Crimes, along with the Corporation for National and Community Service announced the creation of the Elder Justice Americorps. According to the website
[E]lder Justice AmeriCorps, a new grant program to provide legal assistance and support services to victims of elder abuse, neglect and exploitation and to promote pro bono capacity building in the field. This effort will expand a partnership between the two agencies, which includes justice AmeriCorps, a legal aid program launched in 2014 by the Department of Justice and CNCS to serve vulnerable populations.
The Elder Justice AmeriCorps program, which is intended to complement existing Office for Victims of Crime grants to support the development of legal assistance networks providing comprehensive, pro bono legal services for victims of crime, will consist of a single grant to an intermediary organization that will support approximately 60 full-time AmeriCorps positions for each year of the two-year program. Interested applicants can review the Notice of Funding Opportunity at http://www.nationalservice.gov/build-your-capacity/grants/funding-opportunities/2016/americorps-state-and-national-grants-fy-2016#FGSAAA.
Wednesday, September 30, 2015
Jeff Guo, writing for the Washington Post, recently offered a provocative look at "tontines" as a theoretical retirement planning alternative to "annuities." Apparently these are advocated by some modern legal and financial experts:
Economists have long said that the rational thing to do is to buy an annuity. At retirement age, you could pay an insurance company $100,000 in return for some $5,000-6,000 a year in guaranteed payments until you die. But most people don’t do that. For decades, economists have been trying to figure out why....
But there’s also some evidence that people just irrationally dislike annuities. As behavioral economist Richard Thaler wrote in the New York Times: “Rather than viewing an annuity as providing insurance in the event that one lives past 85 or 90, most people seem to consider buying an annuity as a gamble, in which one has to live a certain number of years just to break even.”
Here is where tontines come in. If people irrationally fear annuities because them seem like a gamble on one's own life, history suggests that they irrationally loved tontines because they see tontines as a gamble on other people's lives.
A simple modern tontine might look like this: At retirement, you and a bunch of other people each chip in $20,000 to buy a ton of mutual funds or stocks or whatever. Every year, the group withdraws a predetermined amount and divides it among the remaining survivors. You might get a bonus one year, for instance, because Frank and Denise died....
Want to know more? Read It's Sleazy, It's Totally Illegal, and Yet It Could Become The Future of Retirement. Hat tip to David Pearson for sharing this story.
Tuesday, September 22, 2015
I was having a conversation recently with our elder consumer protection fellow at the College of Law about remedies for financial exploitation, so this headlline from US News & World Report Health certainly got my attention. Vanishing Retirement: the Hidden Epidemic of Financial Exploitation focuses on the ramifications of being a victim of financial exploitation.
Many Americans look forward to the day they'll be able to put their weekly routines aside and enjoy retirement. It takes decades to realize this goal – after putting kids through school, paying mortgages, making car payments and covering myriad other expenses, all while saving for a time when Mondays no longer mean a return to work. So much time and effort goes into building the nest egg – the target of so many schemes in recent years as more and more older Americans face financial exploitation.
Once someone’s income starts being depleted, many things have to be given up. Discretionary items fall to the wayside first: vacations, hobbies and leisure activities. One may lose the ability to leave an inheritance. Even basic travel becomes difficult when a person can’t afford auto insurance and fuel. Then, paying for basic utilities becomes a challenge, leading to late fees and threats power will be shut off.
Personal health becomes compromised as medication costs overtake retirement income. Even a person’s ability to stay in his or her own home becomes threatened, due to the loss of sufficient funds to pay for rent, taxes or water.
The article mentions Mr. Mickey Rooney's testimony before the Senate Special Committee on Aging. I still remember his testimony, especially him noting if it could happen to him, it could happen to others. The story turns to the lack of recognition that exploitation (or other types of elder abuse) is taking place. The article notes that there are many professionals who could be in a position to spot financial exploitation (such as a bank teller or pharmacist).
It should be a community responsibility to get to know our seniors, engage them regularly and recognize and address concerning changes. That’s why, in many states, mandated reporters for elder abuse include any individual, from the physician to the janitor working in a nursing home, who has contact with an older person. This acknowledges we all have the opportunity to identify abuse.
It is so easy to pass off these clues and say, “It’s not my responsibility,” or “Someone else will take care of it.” But addressing the suspicion of wrongdoing can save a person from Mickey Rooney’s fate.
Thursday, September 17, 2015
Why do we see the graying of prisons? The article references the tough on crime lasts back in the 1980s and 1990s but there is more to it. "In 2013, about 10 percent of the nation’s prison inmates ... were 55 or older. By 2030, the [ACLU] report said, one-third of all inmates will be over 55. At the same time, it is widely accepted that prisoners age faster than the general population because they tend to arrive at prison with more health problems or develop them during incarceration."
The article also discusses the costs of caring for inmates who are elderly and reviews some state responses. For example the Fishkill Prison in New York has a unit for those prisoners with cognitive impairments:
This unit, the first of its kind in the country, is specially designed to meet the needs of inmates with dementia-related conditions. It is part of the state’s medical hub at Fishkill, a medium-security prison 70 miles north of New York City. The 30-bed unit, opened in 2006, is set up to resemble a nursing home more than a prison ward. The walls are painted white and the lights are bright, intended to elevate and stabilize mood. Inmates are allowed to walk freely around the unit (wandering is common for those with dementia or related conditions). The staff includes specially trained physicians, nurses, clinical psychologists, psychiatrists, social workers, and corrections officers. The average age of the unit’s 24 inmates is 62.
Care for prisoners in this unit costs almost twice as much as for those in the prison population outside this unit. In California inmates in "good standing" provide care for inmates who have dementia or other illnesses related to advanced age.
The Gold Coats — the caretakers wear gold-colored jackets — assist patients with daily tasks such as dressing, shaving, showering, and other personal hygiene. They escort patients to the dining hall, and to the doctor. They act as companions, protecting their patients from being bullied, and make sure they get food at meal time. The Gold Coats also lead exercise classes and activities designed to stimulate memory. There are Gold Coat programs at 11 California prisons.
Connecticut tried a completely different approach, basically building a nursing home for prisoners and others who are "difficult to place" and in need of that level of care. As noted in the article,that road hasn't been completely smooth.
The town has sued to shut it. Citing zoning restrictions, the town argues that 60 West should be considered a prison/penitentiary, rather than a nursing home. Rocky Hill says it also fears that if nursing-home care for inmates becomes more common, rules on admission will eventually be loosened to allow more dangerous patients to be admitted, potentially endangering neighborhood.
At the same time, the federal government has declined to certify 60 West as Medicaid eligible, because of the unlikely event that an ailing inmate could recover and be returned to prison. Inmates aren’t eligible for Medicaid, and with the prospect, however unlikely, that some patients could once again be incarcerated, the government is arguing that the patients are ineligible, and thus the entire facility is ineligible. The owners are considering an appeal.
Regardless of the approach taken by these 3 states, clearly state correctional officials need to think through the options to provide care for prisons' graying population.
Just fyi the "[KHN] story was written by Maura Ewing for The Marshall Project, a nonprofit news organization that covers the U.S. criminal justice system." Some additional stories from the Marshall Project include Do You Age Faster in Prison? , Older Prisoners, Higher Costs , Dying in Attica and Too Old to Commit Crime?
Wednesday, September 9, 2015
We recently learned of the important role played by Matthew Andres, Director of the Elder Financial Justice Clinic at the University of Illinois School of Law, in convincing the Illinois legislature of the need for a clear civil remedy for seniors and disabled persons who are victims of financial exploitation.
Earlier this year, the Illinois legislature approved Public Act 99-0272, amending existing law that defined the crime of financial exploitation, to provide a specific civil remedy, one that would no longer be tied to (or require) a criminal prosecution. Effective on January 2, 2016, the new Illinois law provides:
Civil Liability. A civil cause of action exists for financial exploitation of an elderly person or a person with a disability as described in subsection (a) of this Section. A person against whom a civil judgment has been entered for financial exploitation of an elderly person or person with a disability shall be liable to the victim or to the estate of the victim in damages of treble the amount of the value of the property obtained, plus reasonable attorney fees and court costs.
In a civil action under this subsection, the burden of proof that the defendant committed financial exploitation of an elderly person or a person with a disability as described in subsection (a) of this Section shall be by a preponderance of the evidence. This subsection shall be operative whether or not the defendant has been charged or convicted of the criminal offense as described in subsection (a) of this Section. This subsection (g) shall not limit or affect the right of any person to bring any cause of action or seek any remedy available under the common law, or other applicable law, arising out of the financial exploitation of an elderly person or a person with a disability.
Professor Andres was the author of a white paper on the need for the changes to prior law, and the resulting bill was supported by AARP. For more, see the news from the University of Illinois website here. Great work, Matt!
Wednesday, August 26, 2015
Recently I was listening to satellite radio while on the road, and caught a Fresh Air interview with Robert Price, celebrated author of hardscrabble crime fiction, including Clockers (2008)and his most recent novel The Whites (2015). Is it my imagination, or are "older adults" appearing more and more often in mainstream fiction and movies? Apparently a central character in The Whites is just such an "senior." In Price's interview, I was struck by the humor of his observations about how growing older himself has influenced his writing, but also about much his grandparents' lives affected his fiction. And I couldn't help but laugh when he observed that no one likes the "math" as you get older, although he is now the first to admit that "65 is the new 64." Here's a link to the 44 minute podcast with Terry Gross.
Sunday, July 26, 2015
With just a few weeks left before law school classes start again, I hope your summer writing and research projects are well underway, giving you time to relax a bit with a good beach read. I've got one to recommend, too. It's Dry Bones in the Valley by Tom Bouman.
The mystery is set in northeastern Pennsylvania, where old time music haunts the air, mixing with the off and on whine of modern day fracking. One of my favorite authors is Tana French, whose Dublin-based "police procedural mysteries" are an excuse for deep exploration of the human condition. Tom's debut novel is in that tradition, even bringing to bear an Irish spirit or two. I like it best when I can see, hear and "feel" the settings in a novel, as in this passage, where bone-tired Henry Farrell struggles to find balance while carrying out his official duties as the rural township's investigator:
I knew I wouldn't sleep and likely shouldn't with my head the way it was. Went back inside, got out my fiddle, and rosined the bow....
I needed something I could rip into. "Bonaparte's Retreat" found me. . . . By the time I got to the modified part B Copland had made so famous, I had to stop and breathe. I thought of George Ellis. Got a piece of paper and curled it into a funnel, poured the rest of my whiskey back into the bottle, and went to bed, but never to sleep.
It's not hard to get up if you never go down. Dawn brought a hint that the weather might get clearer. With enough pain pills, my head would too. The eastern sky was bright as a wild rose as I walked stiff-backed from my woodpile with an armload for the stove. The snow had melted, and my boots left prints on a field that, newly bared, crackled underfoot and shimmered silver; it was a beauty that would not last another ten minutes, so I dropped the firewood and stood and watched the night's frost dissolve into morning mist. Somewhere in the tree line, a bluebird burbled a tune, but I couldn't pick him out. It was the first songbird I'd heard that spring....
Strong writing, yes? But, how does this particular book relate to the Elder Law Prof Blog? Well, as you may have come to expect from me by now, one reason is a central character in the mystery, ol' Aub, may -- or may not -- be too old to remember the truths of what happened.
Another reason is the author is a current Penn State Dickinson law student, and his new book has already earned a 2015 Edgar Award for best first novel and a 2015 Los Angeles Times Book Award for best mystery/thriller.
Friday, July 24, 2015
From the ABA Bifocal, details about the 2015 award of a $50k grant by the Huguette Clark Family Fund for Protection of Elders to develop model civil statutes covering elder financial exploitation:
The project will be managed by the National Center for Victims of Crime under the guidance of Executive Director Mai Fernandez. Lori Stiegel of the American Bar Association Commission on Law and Aging will serve as a consultant on the project. Ms. Stiegel, a senior attorney, joined the ABA Commission in 1989 and has developed and directed its work on elder abuse.
“Creating a template of civil statutory provisions for elder financial exploitation is a short- term, innovative project that can have a lasting impact,” Ms. Fernandez said. “It can give attorneys an effective tool for pursuing civil cases and provide victims with the greatest chance to recover stolen assets. We welcome the support of the Huguette Clark Family Fund for Protection of Elders on this important project.”
The news release explains the donor-advised fund was established by the family in 2013 to honor the late Huguette Clark, "who was victimized by her caregivers for more than two decades." Previous recipients of grants from the Huguette Clark Fund include San Diego State University and the Philadelphia Corporation on Aging.
July 24, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards | Permalink | Comments (0)
Friday, July 17, 2015
On July 7, 2015, in U.S. ex rel Hartpence v. Kinetic Concepts, Inc., the Ninth Circuit, sitting en banc, created an easier path for whistleblowers to recovery under the False Claims Act for disclosure of fraudulent claims for Medicare reimbursement. From its introduction to the ruling in consolidated civil qui tam suits:
If a whistleblower informs the government that it has been bilked by a provider of goods and services, and that scheme is unmasked to the public, under what conditions can that same whistleblower recover part of what the guilty provider is forced to reimburse the government? We hold today that there are two, and only two, requirements in order for a whistleblower to be an “original source” who may recover under the False Claims Act: (1) Before filing his action, the whistleblower must voluntarily inform the government of the facts which underlie the allegations of his complaint; and (2) he must have direct and independent knowledge of the allegations underlying his complaint. Abrogating our earlier precedent, we conclude that it does not matter whether he also played a role in the public disclosure of the allegations that are part of his suit. We also hold that the district court erred in its application of the rule that a whistleblower must be the first to file an action seeking reimbursement on behalf of the government based on the fraudulent scheme.
According to one lawyer interviewed here, the impact of the decision to reverse 25-year old case precedent, though important, may be limited to older cases, "since 2010 amendments to the False Claims Act have further clarified the 'original source' requirements.
Additional history -- and predicting clarifications -- about the public disclosure provisions of the False Claims Act comes from Albany Law Emeritus Professor Beverly Cohen, in an article from Mercer Law Review, titled "Trouble at the Source: The Debates Over the Public Disclosure Provisions of the False Claims Act's Original Source Rule." For more, see Professor Cohen's interesting article (in my own law school's law review, I was happy to discover!), "Kaboom! The Explosion of Qui Tam False Claims Under the Health Reform Law."
Tuesday, June 30, 2015
On June 23, 2015, Martha Brosius, a "retired" attorney who once held herself out as an "elder law attorney," pled guilty in New York to stealing $797,322 from clients. In one alleged instance of breach of fiduciary duties and embezzlement, she was the court-appointed guardian for a 77-year-old disabled man. It was alleged she used client funds to pay office, payroll and personal expenses.
The mother of two minor-aged children and the wife of a district attorney, Brosius is scheduled to be sentenced in August. According to The Long Island Press, the special prosecutor has sought a sentence of between six to eighteen years plus restitution; the defense counsel says some moneys have already been repaid.
Friday, June 26, 2015
On June 24, 2015, a Florida intermediate appellate court reversed the 2013 conviction of Tyrone Javallena for "financial exploitation of an elderly person or disabled adult," ruling that there was no evidence the defendant in question, who was the husband of a financial advisor for a 94-year-old woman who made late-in-life changes to her estate plan benefitting the couple, had the requisite knowledge of any plan to exploit. In Javallena v. State, the 4th DCA ruled:
The [elderly woman's estate] documents were amended so that, ultimately, the defendant and his wife were residual beneficiaries of the estate. The defendant and his wife served as witnesses to Teris' execution of some of the amendments, and at some point in time, his wife became aware of the substance of the amendments. However, there was no evidence that the defendant, who also chauffeured Teris on errands, had any knowledge of a plan to exploit the victim. As for Teris' mental capacity at the time she executed the amendments to her estate documents, there was conflicting evidence before the jury.
On appeal, the defendant argues that his conviction under a principals theory constituted error as there was no evidence he participated in the exploitation. We agree.
"To convict under a principals theory, the State is required to prove that the defendant had a conscious intent that the criminal act be done and . . . the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime."Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012) (citation and internal quotation marks omitted).
The original conviction of Javallena and his wife in 2013 was high profile news, in part because of the estate in question -- referred to in the appellate opinion as "vast" -- was reported to be $10 million. No word on the status of any appeal on the separate conviction of Javallena's wife.
June 26, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Saturday, June 13, 2015
The New York Times' "On this Day" squib reminded us today:
"On June 13, 1966, the Supreme Court issued its landmark Miranda vs. Arizona decision, ruling that criminal suspects must be informed of their constitutional rights prior to questioning by police."
That triggered memories, as the day the landmark decision first became known in Arizona, the father of one of my friends offered everyone in the neighborhood a glass of champagne, even us kids. At the time I did not fully appreciate the reason. It was only years later that I put it together that the celebrant was John P. Flynn, the lawyer who successfully argued the Miranda case before the U.S. Supreme Court.
Even more years later, in the 2000 Supreme Court decision of Dickerson v. U.S., another man from that same Phoenix, Arizona neighborhood would confirm the importance of "Miranda warnings" as an accepted mainstay of protection for individuals suspected of crimes. Chief Justice William H. Rehnquist did not share the legal or political philosophies that generated the original ruling, but he could be persuaded to respect the role of stare decisis. I have often been bemused by the fact that John Flynn, a bold advocate and life-long Democrat, had once celebrated his biggest victory with the children of the neighborhood, including the children of a future Supreme Court Justice, well known for his conservatism. Phoenix, especially the legal community, was a very small town in those days.
My trip down memory lane took me to a colorful account of John P. Flynn's life. It is the story of a creative and talented lawyer, from an era much more tolerant of personal flaws. Read "Remembering John Flynn" by his one-time law partner Tom Galbraith.
Wednesday, June 3, 2015
On March 17, 2015, Missouri executed "convicted cop killer Cecil Clayton." Clayton's prosecution was a matter of much legal commentary from the very outset of his arrest and prosecution in the 1990s, because of the documented history of removal of 1/5 of the frontal lobe of his brain following a sawmill accident in the 1970s.
However, as his prosecution, appeals, and post-conviction challenges wended their way through state and federal courts on issues of effective assistance of counsel, insanity and mental defect, an additional cognitive impairment was underway. By the time of his execution Clayton was reported to be Missouri's "oldest death row prisoner" at age 74 and at least five years before his last day, he had been diagnosed with progressive, neurological deterioration, consistent with "dementia."
The last court to consider the Clayton's last (and last minute) challenges to the death penalty, the United States District Court for the Western District of Missouri, wrote on the same day as his execution:
Should the Atkins [v. Virginia, 536 U.S. 304 (2002)] reasoning be applied, by analogy, to cases involving persons with physical brain damage and progressive deterioration, and an Atkins-like evaluation performed to determine whether the death penalty may be properly imposed? It seems fair to analogize the diminished capacity of the mentally retarded that lessens personal culpability and prohibits execution of the mentally retarded...to those whose physical brain damage and progressive deterioration have, for example, lessened their capacity to meaningfully participate in legal proceedings. Using a different analogy, it would be difficult to imagine, for example, that a civilized society would execute a person who was not mentally retarded at the time of the commission of a capital crime, but who subsequently developed advanced Alzheimer's disease by the time of the execution.
Ultimately, the court ruled that no relief was available to Clayton on the record before it, but the court clearly was concerned about the potential for evidence of post-conviction dementia to establish independent grounds for a valid 8th Amendment challenge. The court concluded:
Again, at this very late date, the question of whether the death penalty can be imposed against a person such as Clayton with physical brain damage—a hole in his frontal lobe—associated with progressive deterioration over time, has not been litigated here, and it may be too late. In the time available, the Court cannot conclude under the deferential AEDPA standard that the Missouri Supreme Court's decision should be disturbed.
For more on the litigation history of Clayton's mental impairment(s), see Clayton v. Al Luebbers, 2015 WL 1208786 (W.D. Mo., May 17, 2015).
Saturday, May 30, 2015
The Washington Post recently profiled Alzheimer's activist Michael Ellenbogen, including the possibility that the very disease he's urging public authorities to confront by committing to find a cure, has impaired his ability to use sound judgment about his tactics:
When Michael Ellenbogen calls for a more aggressive fight against Alzheimer’s disease, he speaks with passion that comes from experience. As someone who was diagnosed with early-onset dementia, Ellenbogen can convey firsthand the pain and frustration at what he sees as insufficient government support for research to find a cure or better treatments.
But to some, Ellenbogen’s passion recently went too far.
After he submitted remarks to the national Advisory Council on Alzheimer’s Research, Care and Services that mentioned the Columbine massacre — asking whether it would require a mass shooting by someone with dementia to draw more attention to the crisis — the Department of Health and Human Services deemed Ellenbogen a security threat. The federal agency, which hosts the council’s meetings, banned him from its premises.
For the full story, see Frederick Kunkle's article More People with Alzhemier's Are Becoming Activists -- Which Brings Its Own Challenges.