Friday, March 27, 2015
As reported in the ABA Journal, "A New Jersey lawyer has been sentenced for 10 years in prison for her part in a scheme to steal $3.8 million from 16 elderly victims:"
Prosecutors say the group took control of the finances of their victims by forging a power of attorney or obtaining one under false pretenses. They then added their names to the victims’ bank accounts and transferred the victims’ funds into accounts they controlled. As part of a plea deal with prosecutors, Lieberman has agreed to pay $3 million in restitution and testify against her co-defendants.
Thursday, March 26, 2015
Pennsylvania's New Pro Rep Rules Target Financial Accountability for Lawyers, Including Restrictions re Sales of "Investment Products"
New rules supplementing Pennsylvania's Rules for Professional Conduct, adopted by the Pennsylvania Supreme Court in late 2014, are intended to require greater accountability by lawyers for handling of client funds, including sums temporarily deposited in IOLTA accounts. The rules became effective on March 1, 2015. As we reported on this blog earlier, including here and here, the changes were an important response to disturbing instances of individual attorneys who stole client funds -- in the aggregate amounting to millions of dollars -- that they had purported to "invest" for the clients.
On March 25, I had the interesting task of serving as a moderator for a meeting hosted by the Elder Law Section of the Pennsylvania Bar Association to explore the implications of the new rules. Panelists included attorneys Stephen K. Todd and David Fitzsimons who have each served on the Pennsylvania Disciplinary Board. They were involved in either the drafting or implementation stages for the new rules. Also helping to set the stage were two additional panelists, practicing elder law and estate planning attorneys, Linda Anderson from the east side of Pennsylvania and John Payne from the west side of the state.
The audience included attorneys from a range of practice areas around the state, as well as Pennsylvania Supreme Court Justice Debra Todd. The dialogue following the panelists' opening remarks was robust, demonstrating support for the increased standards for record-keeping and safe-keeping of property, as well as enhanced powers for the Disciplinary Board to investigate suspected misconduct and demand accountability and disciplinary compliance.
Many of the comments and questions focused on a single new rule, reportedly the first in the nation, that addresses the role of lawyers with respect to "investment products," defined to include annuity contracts, life insurance contracts, commodities, investment funds, trust funds or securities.
The key provisions of new Rule 5.8 provide:
March 26, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 11, 2015
Julie Childs, Project Manager for the U.S. Department of Justice's Elder Justice Website shared with us the resources now available to researchers, students and advocates. Some of the highlights:
Here, victims and family members will find information about how to report elder abuse and financial exploitation in all 50 states and territories. Simply enter your zipcode to find local resources to assist you.
Federal, State, and local prosecutors will find three different databases containing sample pleadings and statutes.
Researchers in the elder abuse field may access a database containing bibliographic information for thousands of elder abuse and financial exploitation articles and reviews.
Practitioners -- including professionals of all types who work with elder abuse and its consequences -- will find information about resources available to help them prevent elder abuse and assist those who have already been abused, neglected or exploited.
This website is intended to be a living and dynamic resource. It will be updated often to reflect changes in the law, add new sample documents, and provide news in the rapidly evolving elder justice field.
It will be interesting to watch this site develop.
March 11, 2015 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)
Friday, March 6, 2015
Pennsylvania Bar Association Program on New Rules of Professional Conduct & Disciplinary Enforcement
On Wednesday, March 25, 2015 (1:30 to 3:30 p.m.), the Pennsylvania Bar Association (PBA)'s Elder Law Section is hosting a panel session at the annual PBA Section/Committee Day to discuss important changes in the Pennsylvania Rules of Professional Conduct and the Disciplinary Enforcement Rules.
Several of the recent changes, including rules mandating greater oversight for trust accounts, timelier handling of complaints, and specific new prohibitions or restrictions on attorney involvement in marketing of "investment products," were a response, at least in part, to serious cases of attorney misconduct resulting in tragic financial losses for individuals. In some instances the clients were older persons who entrusted large retirement assets to the care of a small number of attorneys.
In planning the program, Elder Law Section Chair Jacqui Shafer commented that the program reflects the continuing commitment of the Bar and the Section to take affirmative steps to address and prevent misappropriation of funds from any client, including vulnerable seniors and their families.
Panelists include experienced private practitioners in elder law or estate planning practices and representatives of the Disciplinary Board and PBA's Legal Ethics and Professional Responsibilities Section. Several participants were members of the Pennsylvania's recent Supreme Court Elder Law Task Force.
Here is the link for more details on the program, including the link for required registration (free, including lunch). The deadline for on-line registration is March 20.
March 6, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, February 26, 2015
The New York Times offers dramatic front page coverage of a criminal trial against ten defendants in France, accused of manipulation of Liliane Bettencourt, the 92 year-old heir of the L'Oreal cosmetics fortune. The defendants include a "celebrity photographer" (and his "long-time companion"), a former wealth manager, and an 81-year-old notary "who certified, with misgivings, Mrs. Bettencourt's decision to make" the 67-year-old photographer her sole heir, cutting out her only daughter.
Serious money is involved, with Forbes once estimating Mrs. Bettencourt's fortune at more than $40 billion. She has been diagnosed with "dementia and moderately severe Alzheimer's."
The prosecutors said her advanced age, the beginnings of dementia and a daily medical regimen of 56 pills, including antidepressants, also invited exploitation. And investigators contend that the schemes were so widespread that they included a political scandal involving a former finance minister seeking cash for the 2007 presidential campaign of Nicolas Sarkozy.
Some of the house staff members risked their jobs to challenge her advisers and confidants, particularly a French society photographer who gained the largest share of her fortune. At one point, investigators estimated that share to be about a billion euros, or $1.13 billion, in gifts during 20 years of friendship ending in 2010.
“Liliane wanted to do things for me, to ease my life,” testified the photographer, François-Marie Banier, 67, who is facing the highest penalty of the defendants, three years in prison. “I refused things like a mansion. But she took it so poorly. It’s really hard to cross that extraordinary woman.”
For all the details, sadly familiar if you followed the Brooke Astor history of wealth and manipulation, about the trial that just ended before a panel of judges who will issue their verdict on May 28, read "The Case of L'Oreal Heiress, A Private World of Wealth Becomes Public."
February 26, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International | Permalink | Comments (0) | TrackBack (0)
Thursday, February 19, 2015
Should an Individual's "Vulnerability" be a Defining Criterion for Social Welfare Policy or Services?
Emory Law Professor Martha Fineman, long known for her feminist jurisprudence, has attracted increasing attention for her work on specific concepts of dependency and vulnerability. Her 2008 analysis of vulnerability, rather than, for example, gender or race, as a tool to shape a more responsive state and a more egalitarian society, has been seminal.
Syracuse Law Professor Nina Kohn, in her latest work, "Vulnerability Theory and the Role of Government," notes the "attractiveness" of vulnerability theory, but pushes back against the growing reliance on it as a policy tool, using her own understanding of old-age related government services as the basis for comparison. She raises a serious concern about the potential for the current definition and focus on vulnerability to promote "unduly paternalistic laws." For example, Professor Kohn writes:
"Vulnerability theory as currently articulated would focus attention on maximizing safety and security without adequately considering the impact of potential laws and policies on individual autonomy, or how a sense of autonomy may actually contribute to an individual’s safety and security. This effect is particularly problematic in the context of evaluating laws that seek to protect individuals from entering into or maintaining personal relationships perceived to be unsavory, as is the case with many of the policies designed to protect older adults from abuse, neglect, and exploitation. This is because the autonomy being undermined is the autonomy of the person whom the state is trying to help; since undermining an individual’s autonomy can harm that person in both tangible and intangible ways, the state’s actions are prone to being at least partially counterproductive. Thus, vulnerability theory might be of greater prescriptive value if it distinguished between infringements on autonomy where the person whose autonomy is being sacrificed is the supposed beneficiary of the infringement and infringements on autonomy designed to benefit another."
Professor Kohn's article, published in the most recent issue of Yale Journal of Law and Feminism, uses recent changes in California law to demonstrate a framework for revision of the current theory of vulnerability, with a goal of identifying a "standards based approach" for specific government response.
Wednesday, February 18, 2015
A long-running investigation of a doctor in Illinois for Medicaid and Medicare fraud is coming to a close. Michael Reinstein, "who for decades treated patients in Chicago nursing homes and mental health wards," has pleaded guilty to a felony charge for taking kickbacks from a pharmaceutical company. As detailed by the Chicago Tribune, on February 13, Reinstein admitted prescribing, and thus generating public payment for, various forms of the drug clozapine, widely described as a "risky drug of last resort."
The 71-year old doctor has been the target of the state and federal prosecutors for months, and he's also agreed to pay (which is, of course, different than actually paying) more than $3.7 million in penalties. He may still be able to reduce his prison time from 4 years to 18 months, if he "continues to assist investigators."
The investigation traces as far back as 2009, as detailed by a Chicago-Tribune/ProPublica series that revealed he had prescribed more of the antipsychotic drug in question to patients in "Medicaid's Illinois program in 2007 than all doctors in the Medicaid programs of Texas, Florida and North Carolina combined." Further, the Tribune/ProPublica series pointed to autopsy and court records that showed that, "by 2009, at least three patients under Reinstein's care had died of clozapine intoxication." Reinstein's, and one assumes, the pharmaceutical company's, defense was that the drug could have appropriate, therapeutic effects for patients, beyond the limited "on-label" realm.
Assuming that the government ever sees a dime in repayment, from either the doctor or the drug company, my next question is what happens to that money? At a minimum, shouldn't there be review of the effect of the drugs on these patients, some of whom may have been administered the drug for years? We keep reading that the drugs are "risky," but shouldn't there be evidence of real harm -- or perhaps even benefit -- from the documented "off-label" use? Certainly, prosecutions for off-label drugs are understandable attempts to claw-back, or at least reduce, public expenditures. But isn't more at stake, including the search for relief or workable solutions for patients who are in distress?
In March 2014, for example, Teva Pharmaceutical Industries Ltd., the maker of generic clozapine, reportedly agreed to pay more than $27.6 million to settle state and federal allegations that it induced Reinstein to prescribe the drug. Recovering misspent dollars is important. But I also would like to see evidence of the harm alleged by the government -- or the benefit asserted by the defendants -- from the administration of the drugs. Isn't objective study of the history of these real patients a very proper use of the penalties?
February 18, 2015 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 11, 2015
The Bureau of Justice Administration (BJA) along with Center for Public Safety and Justice have released a guide for law enforcement on dealing with individuals with Alzheimer's. Alzheimer's Aware: A Guide for Implementing a Law Enforcement Program to Address Alzheimer’s in the Community is designed to help law enforcement create a community program to deal with the potential interaction with a person with Alzheimer's. This booklet identifies a number of scenarios when an officer might interact with a person with Alzheimer's. The tools provided by this initiative is designed
to assist in the development and implementation of a community educational campaign by, or n partnership with law enforcement. The resources have recommendations for developing a strategic plan with practical action steps and activity implementation, in order to develop a holistic community approach to responding in crisis situations, involving persons with Alzheimer’s disease, as well as increase awareness of Alzheimer’s and other forms of dementia.
The booklet includes recommendations for law enforcement to develop a program on making their officers aware of Alzheimer's and the issues they may encounter. These include officer training, policy reviews, creation of a "local registry", encouraging the use of monitoring technology or wearable devices and collecting statistics.
Monday, February 9, 2015
AARP has a fabulous video, using the voices of brave victims, to examine the Weapons of Fraud employed by con artists. The speakers span all ages (in fact, I think I saw a Penn State logo on one of the candid, younger victims), and thus the clear message is that anyone can be a risk.
The short (about 15 minute) and intriguing video seeks to inoculate viewers from the risk factors of the pitch. as discussed further on Boston College's Squared Away Blog.
I think one of the most useful parts of this video is identifying and naming the ways that standard marketing tactics are magnified and used to persuade individuals to participate in the con. The techniques include establishing a "phantom fixation," through promise of a sudden windfall that will be available to you and only you... if you just talk to them long enough (oh, and yes, send them money).
Law students will also appreciate the example of the "Miracle Shim" to demonstrate misuse of "social proof," "authority," and fake "scarcity," and other techniques.
Hat tip to ElderLawGuy Jeff Marshall, Esq. for these links.
Friday, February 6, 2015
I recently watched the movie, The Judge, starring Robert Downey, Jr. and Robert Duvall, among others. The premise of the movie is interesting and there's even a good thread about ethics (especially Rule 1.1) running through the movie. What caught my eye toward the end of the movie is (spoiler alert) the use of compassionate release. Although we may cover this in our classes, I don't know that I've seen that crop up in movies. So, I'm thinking of adding this movie to my list for my elder law class. Any movies you think should be on the list?
Tuesday, January 27, 2015
The Importance of Checks & Balances in Law Firm Management, Including Handling Of Elder Client Funds
A news release from the U.S. Attorney's Office in Western Virginia provides an important reminder of the importance for every lawyer of having a system of checks and balances for law office management, to prevent any single employee from having unsupervised access or exclusive control over client trust funds. On December 15, 2014, a 34-year-old legal assistant at a law firm in Virginia was sentenced to 24 months in federal prison for stealing more than $183k from an elderly client of the law firm. The lawyer who employed that assistant had been named by the county to serve as the conservator for the elderly woman who became the victim. According to the news release, the attorney "allowed [the legal assistant] to access the elderly woman's bank accounts,...but [the assistant] did not have signature authority on the accounts."
According to the news release, the employer "to date... has repaid $104,990.15." One suspects the law firm (or, its insurer) will have to pay the whole tab, even though the sentencing order imposes an obligation of restitution for the full sum on the legal assistant.
Monday, January 12, 2015
We have written often recently (see here and here) about problems with Powers of Attorney (POAs), and a pending case in Minnesota appears at first to be another sad tale of an agent's alleged self-dealing. The Minnesota Court of Appeals set up the fact pattern as follows:
"The attorney is asked to draft a power of attorney for his elderly client. The document is drafted by a secretary. The lawyer never meets the client. Neither the lawyer nor the secretary ever discusses the ramifications of signing the document with the client. The document allows the attorney-in-fact to transfer all of the client's assets to himself. Days after the [elderly uncle] signs the document, that is precisely what happens."
The nephew used the POA to drain the uncle's accounts of more than $227,000.
Was the nephew liable for conversion? By the time that question was answered by the courts in the affirmative, the nephew was in bankruptcy -- and the money was apparently gone.
The uncle's estate looked for deeper pockets, and focused on the law firm that provided the broadly worded POA "form." The Minnesota Court of Appeal's split decision -- focusing on whether summary judgment for the defendant law firm was proper -- outlines several points that should be considered by any law firm that has drafted a POA, including whether such "forms" should ever be provided to individuals without accompanying legal advice.
Friday, January 9, 2015
Criminal behavior in older adults, including theft, traffic violations, sexual advances, trespassing, and public urination, may be a sign of dementia, researchers say. There is a subgroup of people, especially older adults who are first-time offenders, who may have a degenerative brain disease underlying their criminal behavior, said Dr. Georges Naasan of the Memory and Aging Center and Department of Neurology at the University of California, San Francisco. He and his coauthors reviewed the medical records of 2,397 patients diagnosed with Alzheimer’s disease or other types of dementia between 1999 and 2012. They scanned patient notes for entries about criminal behavior using keywords like ‘arrest,’ ‘DUI,’ ‘shoplift’ and ‘violence’ and uncovered 204 patients, or 8.5 percent, who qualified. Their behaviors were more often an early sign of frontotemporal dementia (bvFTD) or primary progressive aphasia (PPA), a type of language-deteriorating dementia, than of Alzheimer’s disease.
Read more at Reuters.
The American Bar Association's Commission on Domestic & Sexual Violence is teaming with the National Clearinghouse on Abuse in Later Life (NCALL) to host a 5-part FREE webinar series on "Abuse in Later Life." The target audience includes "civil attorneys, legal advocates and otherw who wish to gain a deeper understanding" of the topics.
The series takes place on Thursdays (mark your calendars!), starting on January 22, and includes the following modules:
- Module One: Abuse in Later Life: An Overview
Thursday, January 22, 2015, 2:00-3:00 pm E.S.T.
- Module Two: Forming the Relationship with Your Client: Client communication, interview skills, and confidentiality/mandatory reporting concerns
Thursday, February 5, 2015, 2:00-3:00 pm E.S.T.
- Module Three: Client Goal-Setting and Non-Litigation Responses: Client collaboration, developing client priorities and non-litigation responses to ALL
Thursday, February 19, 2015, 2:00-3:00 pm E.S.T.
- Module Four: Legal Resolutions and Remedies in ALL cases: Protective orders, Guardianships, Power of Attorney agreements, end of life health care decision-making and working with the criminal justice system
Thursday, March 5, 2015, 2:00-3:00 pm E.S.T.
- Module Five: Bringing the Case – Trial Skills: Protection of evidence and assets, motion practice, witness testimony methods and supports, direct and cross-examination and application of the Crawford decision in ALL cases
Thursday, March 19, 2015, 2:00-3:00 pm E.S.T.
For more information, including registration, go here.
Tuesday, January 6, 2015
With the 2015 AALS Annual Meeting in our rear-view mirror, we can begin thinking about programming for January 6-9, 2016 in New York City! Whew! No rest... no rest....
The new officers for the Aging and the Law Section include Chair-Elect Nina Kohn, Syracuse Law, Secretary Roberta Flowers, Stetson Law, and Treasurer Jack Sahl, University of Akron Law. Mark Bauer, Stetson, as outgoing chair will continue on the executive committee. If other law professors reading this blog would like to volunteer to be on the planning committee for January 2016, that would be great too. Just email one of us to let us know!
The preliminary plans are to work on a joint program with a professional responsibility focus, looking at emerging potential roles for attorneys to protect older adults from abuse or neglect, including consideration of whether attorneys are -- or should be -- "mandated" reporters of suspected abuse of adults. A mandatory reporting obligation, already a fact of life for some professionals, including social workers in certain contexts and attorneys in some states, raises important questions of client identity, autonomy, confidentiality, and conflicts of interest, just to name a few concerns. Let us know if you have a work in progress -- or additional thoughts -- along this line.
Wednesday, December 24, 2014
Okay, I will admit to being one of the addicts for the podcast "Serial" episodes. If you haven't listened yet, the first season tracked an investigaton of a criminal case, posing the question of whether a young man who was convicted as a teenager of murdering his former girlfriend might be entitled to post-conviction relief. Listening to the well-crafted episodes and compelling voices of the defendant and other individuals connected the Baltimore events has been a great way to rest my semester-weary eyes, while still considering important questions of law, ethics, justice, professional obligations of attorneys, race, and ethnicity.
But the last episode for 2014 is now behind us. What to listen to now? Especially while we actually have some down time between semesters-- and might need a break from our own families!?
Well, here is another interesting option -- Life of the Law, a bi-weekly "sound rich" podcast series exploring cutting edge topics. The episode on "New Frontiers of Family Law" immediately gave me a new term - polyamorous relationships -- and surprising new things to think about for my course on Wills, Trusts & Estates. The episodes vary in length, some nicely as short as 15 minutes.
Tuesday, December 16, 2014
We reported earlier on the brazen attitude and extraodinary thefts by a Pennsylvania estate and long-term care planning attorney. Wendy Weikal-Beauchat, age 47, pled guilty to a series of crimes and on December 16, 2014 she was sentenced to 15 years in prison. The sentencing judge ordered more than $6 million in restitution and the same amount in forefeitures. In ordering her immediate surrender at the end of the hearing, U.S. District Judge John E. Jones III emphasized the betrayal of client trust that accompanied the now disbarred Gettysburg attorney's actions.
"Approximately 30 of Weikal-Beauchat's former clients attended the sentencing, 16 of which read statements to the court, the release states. Most emphasized the mental, as well as the financial, harm inflicted on them and their families by Weikal-Beauchat's fraud.
Weikal-Beauchat stole from clients who were members of the Great Depression and World War II generation and had undermined public trust in lawyers, said Judge John E. Jones III during sentencing. Jones said Weikal-beauchat's apology, which was presented in court for the first time Tuesday, was hollow, the release states."
Additional details from the Evening Sun news coverage are here.
Saturday, December 13, 2014
AirTalk, a program aired daily by Public Radio affilliate KPCC in Southern California, hosted a discussion about the issues identified in news articles about the Iowa criminal case, where a husband faces "statutory rape" charges for having sexual relations with his wife after she was diagnosed with advanced dementia and began residing in a nursing home.
Here's the link to a podcast of the December 12, 2014 segment.
December 13, 2014 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, December 12, 2014
One of my elder law practioner-friends, Julian Zweber, was called by scammers this week. Julian smelled a rat, and now he's working with the Ramsey County Sheriff's Dept. to track down the scammers. I understand from other colleagues that variations of the scam are is sweeping the country. It has been very effective in bilking seniors of a LOT of money.
Details on the Minneapolis/St. Paul version.
The Hennepin County Sheriff’s Office is warning residents about telephone scams.
Individuals are calling residents and telling them there is a warrant out for their arrest because of unpaid court fees or unpaid fines. The phone scammer tells residents that they will be arrested unless they provide credit card or payment information.
Police departments in the metro area also have received reports about phone scammers who tell residents that they owe back taxes. The phone scammers threaten that law enforcement officers will arrest residents who don’t provide payment information over the phone.
The IRS and the Minnesota Department of Revenue have recently issued alerts reminding people that their agencies do not call residents about tax issues. Instead, these agencies send letters to residents.
Nationally, there are a variety of different phone scams. Some of the con artists impersonate an IRS agent, a state revenue department representative, a Sheriff’s deputy, a police officer, or personnel from other federal law enforcement agencies.
The phone scams have resulted in identity theft, fraud, and unauthorized credit card use.
Never provide personal information or credit card numbers over the phone unless you know that the call is legitimate. People who receive a telephone call that appears suspicious, should NOT provide personal information and should instead call local law enforcement or call 911 to report the incident.
Do not rely on caller ID to verify the origin of a phone call. In some cases, calls from phone scammers will appear on a caller ID as originating from a law enforcement agency or government agency, when in reality the call is a hoax and a result of technology that manipulates caller ID. If you are uncertain about the identify of a caller; hang up the phone, locate the official phone number of the agency that called you, and call the agency directly.
Thursday, December 11, 2014
In August, I reported on criminal charges filed that month in Iowa, charging a husband with sexual abuse of his wife who was living in a nursing home.
As a result of that post, I was invited by a reporter, who was working on an extended analysis of the case, to review certain information and records emerging from the case. Much of my own research is closely focused on issues both of capacity and protection.
The more one reads about the Iowa case, the sadder it seems. Even though at first it seemed the husband, a state legislator, might be expected to have sophisticated legal knowledge of the implications of what it might mean for his wife to be diagnosed with dementia, it became pretty clear -- at least to me, reading from afar -- that the husband is a fairly simple guy: A farmer, high school education, part-time legislator who liked pig roasts and parades, and someone who cared deeply for his second wife, trying as hard as possible to see her as "just a little" impaired.
I suspect that for many of us who have experiences with a loved one with dementia, there is a phase of denial, not just about the fact of dementia, but about the level of dementia. I remember one instance where a client always had her husband sign their joint tax returns, because even with Alzheimer's, he was "able" to sign his name clearly.
Reading the statute used to charge the Iowa husband also gave me pause. Iowa Code Section 709 was the basis of the sexual abuse charges. Sexual abuse in the third degree under Section 709.4 could be charged where a sex act "is done by force or against the will of the other person." That provision did not seem to apply. Charges could also be brought where the act is between persons who are not cohabiting as husband and wife, "if any of the following" is true: "The other person is suffering from a mental defect or incapacity which precludes giving consent."
Section 709.1A of the Act defines "incapacitation" to include "mentally incapacitated" or "physically incapacitated" and neither quite seemed to apply. Under Iowa law, "mentally incapacitated" means that a person is "temporarily incapable of apprising or controlling the person's own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance." And "physically incapacitated" means that a person has a bodily impairment or handicap that substantially limits the person's ability to resist or flee."
So, how was the husband charged? He was charged under Section 709.4 (2)(a) on the grounds that his wife, with whom he was not "cohabiting," suffered from a "mental defect" that precluded giving consent.
So that makes the "elder law" issue fairly stark: Has his wife's diagnosis of dementia, especially advanced dementia, prevented her from giving legally effective "consent?"