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?"
Friday, November 28, 2014
In Wagner v. State of Maryland, decided October 30, 2014, the Court of Special Appeals of Maryland affirmed the conviction of a daughter on charges of theft and misappropriation as a fiduciary, arising from her withdrawal of funds from her father's bank account which she used for her own purposes. The daughter had been added as a "joint owner" on the account by her 80+ year old father following the death of his wife.
The issue as framed on appeal was whether a person can be guilty of theft from a joint account on which that person is named as a joint owner.
The amount in controversy was more than $120,000 withdrawn by the daughter over 3 years. The appellate court concluded that "even though [the daughter] was named as a 'joint owner' in the parties' agreement with the bank, and not a convenience person, it does not determine conclusively that [she] was an [owner] for the purpose of the criminal statute."
Several key facts supporting the conviction are described in the decision, including:
- Testimony by the father at trial that the only reason he added his daughter's name to the account was to permit her to get money for him, if he was unable to get it for himself.
- The father retained control over the checkbook for the account.
- Evidence that thousands of dollars were withdrawn from the father's account by the daughter using a cash card, which the father said he was unaware existed.
- The daughter had failed to make payments on a $85k mortgage taken out by her father on his home, which the father testified was a loan to his daughter to help her business, and not a gift as the daughter claimed. Notice of foreclosure on the home was apparently what tipped the father to ask questions about his finances.
Maryland has not, apparently, adopted the Uniform Multiple Person Accounts Act, (UMPAA, first approved 1989) which is intended to clarify the rights of depositors and other parties in jointly titled bank accounts.
Monday, November 24, 2014
Several high profile incidents, such as those reported here in our Blog and here by the Philadelphia Inquirer, involving attorneys disciplined or convicted of theft of client funds, have triggered proposed changes in Pennsylvania's Rules of Professional Conduct for attorneys. The rule changes proposed by the Pennsylvania Supreme Court's Disciplinary Board include:
- imposing restrictions on an attorney's brokering or offering of "investment products" connected to that lawyer's provision of legal services;
- clarifying the type of financial records that attorneys would be required to maintain and report, regarding their handling of client funds and fiduciary accounts;
- clarifying the obligation of attorneys to cooperate with investigations in a timely fashion;
- clarifying the obligation of suspended, disbarred, or "inactive" attorneys to cease operations and to notify clients "promptly" of the change in their professional status.
The Disciplinary Board called for comments on the proposed rule changes, noting that although individual claims against the Pennsylvania Lawyers Fund for Client Security are confidential, "Fund personnel can attest that from time to time, the number of claims filed against a single attorney will be in double digits and the total compensable loss will amount to millions of dollars." The comment window closed on November 3. 2014.
In recommending changes, the Disciplinary Board noted common threads running through many of the cases, including:
November 24, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Monday, November 17, 2014
On November 17, 2014, following more than a year of study and consultation, the Pennsylvania Supreme Court's Elder Law Task Force issued a comprehensive (284 pages!) report and recommendations addressing a host of core concerns, including how better to assure that older Pennsylvanians' rights and needs are recognized under the law. With Justice Debra Todd as the chair, the Task Force organized into three committees, focusing on Guardianships and Legal Counsel, Guardianship Monitoring, and Elder Abuse and Neglect. The Task Force included more than 40 individuals from across the state, reflecting backgrounds in private legal practice, legal service organizations, government service agencies, social care organizations, criminal law, banking, and the courts.
From the 130 recommendations, Justice Todd highlighted several "bold" provisions at a press conference including:
- Recommending the state's so-called "Slayer" law be amended to prevent an individual who has been convicted of abusing or neglecting an elder from inheriting from the elder;
- Recommending changes to court rules to mandate training for all guardians, including, but not limited to, family members serving as guardians;
- Recommending adoption of mandatory reporting by financial institutions who witness suspected elder abuse, including financial abuse.
The full report is available on the Pennsylvania Supreme Court website here. As a consequence of the Task Force study, the Supreme Court has approved the creation of an ongoing "Office of Elder Justice in the Courts" to support implementation of recommendations, and has created an "Advisory Council on Elder Justice to the Courts" to be chaired by Pennsylvania Superior Court Judge Paula Francisco Ott.
Friday, November 14, 2014
The November issue of AARP's Bulletin carries a special Medicare cover story, "Inside the Medicare Strike Force" by Rick Schmitt. The article details recent successes by a Justice Department unit formed in 2007:
"The strike force has grown from a single outpost in Miami in 200 to nine cities, with the support of 40 of the 100 attorneys in the fraud section of the Justice Department. . . . Just this September, some 280 prosecutors and agents from around the country attended a Justice Department workshop in Washington, D.C., to learn the finer points of investigating and prosecuting Medicare cases. Increasingly, the crackdown has the look of a major narcotics operation, complete with electronic surveillance and frequent use of informants and cooperating witnesses. Defendants' assets are now routinely seized before trial. Sentences are being measured in decades; even some older beneficiaries are being prosecuted. Agents are backed by forensic accountaints, health care professionals and data acquisition analysts who have a pipeline to Medicare contractors' billing information."
A side bar to the main feature focuses on Peggy Sposato, describing her as a "fraudster's worst enemy," through use of her data analysis skills to create systematic review of billing records. Her methods successfully trace unlawful Medicare payments. Her career as a fraud buster "began in the mid-1990s after a career as a geriatric nurse."
Thursday, November 13, 2014
Does "Unlimited" Gifting Power in POA Protect the Agent from Criminal Liability for Self-Gifting? PA Appellate Court Says "No"
Following a nonjury trial in 2012, David Patton was convicted of 95 counts of statutory theft by unlawful taking, arising out of his use of a power of attorney (POA). The POA named him as agent for his 86 year-old aunt. At issue was more than $200,000. Patton appealed the conviction, alleging the POA that expressly granted him authority to make "limited or unlimited gifts," made it impossible for him to be held liable for theft by cashing checks and making withdrawals from his aunt's accounts for his personal use in 2008, 2009 and 2010. In September 2014, the Superior Court of Pennsylvania, an intermediate appellate court, issued a "nonprecedential" written opinion affirming the convictions, concluding:
"Simply stated, we reject Appellant's bold claim that the 'unlimited gift' provision in the power of attorney provided Appellant with a license to steal [his aunt's] assets and use all of her money for Appellant's own benefit. To the contrary, the gifting power was clearly subject to the condition [stated in a statutorily required affidavit signed by Appellant] that Appellant use the power 'for [his aunt's] benefit' - and Appellant clearly violated this condition when he took all of [his aunt's] money and used it as if it was his own. Therefore, since Appellant's actions were not authorized by the power of attorney, Appellant's sufficiency of the evidence claim necessarily fails."
In reaching this decision, the appellate court adopted the trial court's "meticulous" rulings as its own. In the trial court's final order, the judge rejected the defendant's testimony that he had no awareness or notice that using the POA to make the transfers in question was a crime. The trial judge wrote: "He did not need to be notified in writing to know that he could be charged with theft for taking for his own personal use over $200,000 of [his aunt's] savings, using some of it to go gambling in Erie and depriving her of sufficient funds to pay for her nursing home care in her old age."
An additional interesting, and perhaps confusing aspect of the case, is testimony by the attorney who drafted the POA.
When called by the defense to testify as "an expert" on powers of attorney, as well as a fact witness, the attorney testified he "always" included both "limited and unlimited" gifting authority in his POAs. He testified he explained to the aunt that the broadly-worded POA enabled the agent to "do anything that she could do." On direct examination, he testified the gifting language was "completely unconditional."
Sunday, November 2, 2014
Catherine "Kitty" Haughey passed away in 2004, a widow without children of her own. Her godson lived with her the last two years of her life in County Armagh in Northern Ireland. She was leaving behind the lovely sounding "Annie's Cottage" and Larkin's, a family pub, along with a substantial sum of cash. Directions for distribution of her property were contained in a will dated two weeks before her death.
Ten years later, her godson has pled guilty to forgery of that will, although still trying to rationalize his actions by saying the new document that gave him the house and pub "reflected her dying wishes." He was finally compelled to concede he'd gone about "changing the will in the wrong way."
Indeed he did, with help in drafting and "witnessing" the will coming from a surveyor and a local doctor, both of whom earlier pled guilty to assisting in the forgery. They received suspended sentences.
The 53-year-old "godson," Francis Tiernan, tried to avoid prosecution in Northern Ireland by fleeing the court's jurisdiction and fighting extradition after he was discovered in the south of Ireland. His prison sentence is three years.
The actual will, dated 2003, had left Tiernan just £1000, while the reported value of the property was more than £1,000,000. An autopsy was performed following exhumation of Kitty Haughey's body, showing she died of natural causes. Her death came close in time to those of her only two siblings.
Hat tip to Dr. Joe Duffy of Queen's University Belfast for sending me this story. For another tale of misuse of legal documents to gain control over a pub in Ireland, see "The Lesson of the Irish Family Pub" that I wrote for Stetson Law Review in 2010. That time the "help" came from a lawyer who contended he was representing the "family" in preparing deeds. For more on Francis Tiernan's woes and indications of his colorful past, see links below.
Thursday, October 23, 2014
Via The Telegraph:
Doctors and nurses who help severely disabled or terminally ill people to take their own lives are less likely to face criminal charges after Britain's most senior prosecutor yesterday amended guidelines on assisted suicide. Until now all health care professionals faced a greater chance than others of being prosecuted for helping people to die because of the trust their patients placed in them. Alison Saunders, the Director of Public Prosecutions, said this special deterrent would now only apply to those directly involved in a person's care. Anti–euthanasia campaigners accused Ms Saunders of "decriminalising" assisted suicide by health care professionals "at a stroke of her pen". Dr Michael Irwin, the former GP nicknamed "Dr Death" for helping several people kill themselves, said the change was a "wonderful softening" that would "make life easier" for people like him. He said he and many other retired doctors would now feel able to help people travel to Switzerland's Dignitas centre "without worrying". But campaigners for legalisation of assisted dying said the amendment did not go far enough. Ms Saunders insisted the change was simply a clarification and would not offer anyone "immunity" against prosecution for assisted suicide, which is punishable by up to 14 years in jail. Guidelines published by the former DPP, Sir Keir Starmer, in 2010 say people acting "wholly out of compassion" could avoid prosecution for helping people end their lives. But the guidelines also list circumstances that would make prosecution more likely. They include where someone is "acting in his or her capacity" as a medical doctor.
Source/more: The Telegraph
Monday, September 29, 2014
The NYC Elder Abuse Center ran a post last week that listed the 10 top blogs from the past year. 10 Elder Justice Blogs to Inform & Inspire includes summaries as well as links to "ten great blogs from the July 2013 – June 2014 stellar blog collection that collectively discuss myriad elder justice issues – from elder abuse in popular culture to podcast interviews with leaders in the field." Check it out and make sure you haven't missed anything!
Wednesday, September 10, 2014
The U.S. Department of Justice recently established an on-line Elder Justice Initiative, intended to assist the public, practitioners, and prosecutors with identifying and responding to all types of elder abuse. Here are some of the highlighted resource links from the website:
|Here, victims and family members will find information about how to report elder abuse and financial exploitation in all 50 states and the 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.
Monday, September 8, 2014
We all know how prevalent financial scams are, and that they are becoming more and more sophisticated. One of my colleagues, and dear friend, forwarded an email to me purportedly from his financial institution-and the email had the correct last 4 #s of his credit card! He promptly contacted the financial institution because it looked so authentic, only to find out it was a scam. The institution insisted there was no data breach. He promptly closed that account. I'm sure you have had similar experiences, or know someone who has (every semester I ask my students whether any of them have been victims of identity theft. Unfortunately, there is always at least one).
Governing ran a story a couple of weeks ago about state efforts to combat financial scams that target elders. The article, States Fight Financial Scams Aimed at Seniors, quotes Mary Twomey of the National Center on Elder Abuse, that the advancement in fighting scams is happening at the state level. For example, the article indicates that in 2014 "lawmakers in at least 28 states and the District of Columbia introduced legislation addressing the issue. Some measures focus on enhancing criminal penalties. Others target caregivers who exploit elderly charges. Some require financial institutions to report suspected exploitation."
We all know the dearth of statistics makes it a challenge to really understand the magnitude of the problem. The article quotes some studies with statistics, including a recent one from the Journal of General Internal Medicine "that found that one in 20 older adults in New York state reported that they had been financially exploited, usually by a family member, but sometimes by a friend or home-care aide."
The article also reviews some of the innovations in certain states, such as Colorado which requires training of law enforcement to recognize exploitation and abuse, with each department required to have a minimum of 1 trained officer by 01/01/2015; and North Carolina, which allows "courts ... to freeze the assets of a defendant charged with financial exploitation of a senior or disabled adult, if the victim has lost more than $5,000."
Sunday, August 24, 2014
We've reported several times, including here and here, on recent academic and professional publications that address the sensitive topic of "consent" to sexual relations for individuals residing in nursing homes.
The Huffington Post and other media reports now bring the topic into the general public realm with coverage of a complicated case emerging in Iowa, where a husband has been arrested on charges connected to sexual relations with his wife, a resident with Alzheimer's, in her nursing home room.
Two items that may be critical to the outcome of the case: Alleged "notice" to the husband by the facility that his wife was no longer legally able to give consent to sexual relations, and the identity of the husband as a public figure. The fact that the husband is a state legislator is a reason why the case may get wide news coverage. But that wider coverage could also generate important discussion and debate about the deeper legal, personal and public issues. From one article:
"An Iowa legislator who allegedly had sex with his mentally incapacitated late wife has been charged with sexual abuse. Henry Rayhons, 78, a Republican state representative from Iowa House District 8, was told by medical staff on May 15 that his wife, 78-year-old Donna Rayhons, no longer had the mental ability to consent to sexual activity, according to a criminal complaint obtained by WHO-TV. Donna Rayhons, who suffered from Alzheimer's disease, had been living in Concord Care Center in Garner, Iowa, since March, according to the Des Moines Register....
In an interview with law enforcement in June,Rayhons allegedly confessed to 'having sexual contact' with his wife, according to KCCI. He also allegedly admitted that he had a copy of the document that stated his wife did not have the cognitive ability to give consent. Rayhons was charged with third-degree sexual abuse on Friday.
Elizabeth Barnhill, executive director of the Iowa Coalition Against Sexual Assault, told the Des Moines Register that even though spousal rape has been illegal in Iowa for about 25 years, arrests for the crime are rare and 'convictions are even rarer.' Barnhill also noted that sexual assault between spouses is not considered a 'forcible felony' in Iowa."
According to new sources, the family has also made a statement.
August 24, 2014 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, August 21, 2014
Pennsylvania has had its share of tragic recent stories connected to the death of older persons under circumstances that raise a question of suicide or murder.
Sadly, New Mexico now provides another example, where an 89-year old woman was found dead in the basement of her rural ranch home in early January. Her 69- year old daughter was charged with murder -- and at first the facts seemed to fit, given the very unusual manner of death. But this week the District Attorney dropped the charges, citing the lack of DNA or fingerprints to tie the daughter to the death, as well as expert analysis concluding the mother had written both "suicide notes" explaining her choice.
The notes suggested the older woman "did not want to be a burden to others." That history has led the family, now that the charges have been dropped, to encourage wider "exploration" of options that could prevent future tragedies, especially for older adults. Albuquerque Journal writer Leslie Linthicum, who first encountered both women 24 years before while working on a story about women ranchers in New Mexico, provides a balanced, thoughtful account of this latest tragedy.
As one saying goes, "there has to be a better way," but in most states the law does not currently recognize "better" choices. We're tackling important societal issues on many fronts right now, including same-gender marriage and legalized use of marijuana. Certainly we can also do a better job with laws affecting end-of-life decisions.
Sunday, August 17, 2014
The Washington Post ran a fascinating article on a particular Medicare scam. A Medicare Scam That Just Kept Rolling was published August 16, 2014 and focuses on power wheelchairs. The article offers a detailed look at how this particular scam worked.
The wheelchair scam was designed to exploit blind spots in Medicare, which often pays insurance claims without checking them first. Criminals disguised themselves as medical-supply companies. They ginned up bogus bills, saying they’d provided expensive wheelchairs to Medicare patients — who, in reality, didn’t need wheelchairs at all. Then the scammers asked Medicare to pay them back, so they could pocket the huge markup that the government paid on each chair.
This eye-opening article points out that the depth and breadth of the scam remains largely unknown, but is on its way out.
But, while it lasted, the scam illuminated a critical failure point in the federal bureaucracy: Medicare’s weak defenses against fraud. The government knew how the wheelchair scheme worked in 1998. But it wasn’t until 15 years later that officials finally did enough to significantly curb the practice.
The article is accompanied by a video that shows in "four easy steps" how to perpetrate a Medicare scam as well as a sidebar with slides showing how the power wheelchair scam works. Variations of the scam are more than 40 years old and have morphed with the times.
If you aren't shaking your head in wonder now, consider why these scams can happen:
[F]or Medicare officials at headquarters, seeing the problem and stopping it were two different things.
That’s because Medicare is an enormous system, doing one of the most difficult jobs in the federal government. It receives about 4.9 million claims per day, each of them reflecting the nuances of a particular patient’s condition and particular doctor’s treatment decisions.
By law, Medicare must pay most of those claims within 30 days. In that short window, it is supposed to filter out the frauds, finding bills where the diagnosis or the prescription seem bogus.
The way the system copes is with a procedure called “pay and chase.” Only a small fraction of claims 3 percent or less — are reviewed by a live person before they are paid. The rest are reviewed only after the money is spent. If at all.
The whole thing is set up as a kind of honor system, built at the heart of a system so rich that it made it easy for people to be dishonorable.
The article talks about comparisons--the amount of money spent on power wheelchairs as compared to the total amount of dollars spent in the Medicare universe and although the amount spent on wheelchairs is a lot, it's a small amount in that universe. The article mentions the steps the government has taken to end the motorized wheelchair scam such as competitive bidding and rent-to-own. So if the wheelchair scam is on the decline, what's the next one? According to the article, orthotics and prosthetics. Stay tuned...
Thursday, August 14, 2014
University of Memphis Law Professor Andrew Jay McClurg's article, "Preying on the Graying: A Statutory Presumption to Prosecute Elder Financial Exploitation," appears in May 2014 issue of the Hastings Law Journal. Professor McClurg proposes that states adopt "state criminal statutes that create a permissive presumption of exploitation with regard to certain financial transfers from elders." In correspondence, Professor McClurg points to the fact that on the surface it may appear that older persons -- victims -- are "voluntarily" parting with assets, when "in fact [the transactions] occur because of undue influence, psychological manipulation and misrepresentation."
Professor McClurg stresses the need for a statutory presumption to give prosecutors an effective tool to hold offenders accountable. His proposal has already had direct impact, in the form of Florida legislation, Fla. Stat. 825.103(2) signed into law June 20, 2014 and effective on October 1, 2014. Key language from the provision includes:
"Any inter vivos transfer of money or property valued in excess of $10,000 at the time of the transfer, whether in a single transfer or multiple transactions, by a person age 65 or older to a nonrelative whom the transferor knew for fewer than 2 years before the first transfer and for which the transferor did not receive the reasonably equivalent financial value in goods or services creates a permissive presumption that the transfer was the result of exploitation."
The Florida provision applies "regardless of whether the transfer or transfers are denoted by the parties as a gift or loan, except that it does not apply to a valid loan evidenced in writing that includes definite repayment dates...." Further, the new Florida provision does not apply to "persons who are in the business of making loans" or "bona fide charitable donations to nonprofit organizations that qualify for tax exempt status."
In cases tried to a jury under the Florida statute, the law provides that jurors "shall be instructed that they may, but are not required to, draw an inference of exploitation upon proof beyond a reasonable doubt of the facts listed in this subsection." The law's presumption "imposes no burden of proof on the defendant."
UPDATE: Professor McClurg wrote again to explain that he worked directly with the Florida Elder Exploitation Task Force and with Florida Representative Kathleen Passidomo to secure passage of the new law. Professor McClurg's presumption proposal was introduced as part of H.B. 409, which passed unanimously through the two houses of the state legislature. According to Professor McClurg, the statute is the only one of its type in the nation. Thanks for the clarification, Andrew!
Friday, July 25, 2014
The Consumer Rights Litigation Conference, put on by the National Consumer Law Center (NCLC), is set for November 6-9 in Tampa Florida. This is the preeminent program for consumer rights advocates and there are several sessions with a special focus on protection of older persons. Sessions include:
"Reverse Mortages: New Changes and Old Challenges to Foreclosure," with Odette Williamson and Margot Saunders, NCLC, focusing on "emerging issues in reverse mortgages, including the new 'ability to pay' determinations and protections for dispossessed spouses." (Friday morning, Nov. 7)
"Retirement Benefits and Bankruptcy, Do they Mix?" by Tara Twomey (NCLC), asking whether a "fresh start jeopardizes the debtor's ability to receive social security benefits" and to what extent are "retirement savings off the table for nonsecured creditors." (Saturday morning, Nov. 8)
"Challenging Financial Fraud and Scams Aimed at Older Adults," by David Kirman (North Carolina Department of Justice) and Stephan A. Weisbrod (Weisbrod, Mattis & Coply PLLC), examining legal tools that can be used to challenge these practices, including private actions and suits brought under state statutes, such as California's Financial Elder Abuse Act. (Saturday afternoon, Nov. 8)