Saturday, April 12, 2014

Pennsylvania's Current Debate: How Best to Respond to Elder Exploitation?

I think it is safe to say that in more than twenty years of working in law and aging, the last twelve months have been the "busiest" I can remember on the topic of financial abuse of older persons. 

As examples, in just the last six months, in addition to international projects on safeguarding policies, I have been invited to assist a team of attorneys on a series of well-attended CLE presentations on "powers of attorney," testify at the invitation of the Pennsylvania House of Representatives on the topic of financial abuse and exploitation, and serve on an Abuse and Neglect Committee for the Pennsylvania Supreme Court's Elder Law Task Force.  

Certainly the concerns about financial abuse of older adults are not new. However, a steady drumbeat of local news reports about financial abuse, plus the demographics of aging populations, has drawn increased attention of state legislators, courts, and practitioners.  In many jurisdictions, the focus is no longer just on "whether" but "how" to address the problem of exploitation of older people. In addition, the high profile cases involving philanthropist Brooke Astor and actor Mickey Rooney, reportedly at the hands of family members and others, have made it clear that no level of society is immune from the potential for abuse.   

Along this line, in Pennsylvania a series of events have helped to shape the current debate on abuse of older persons or other "vulnerable" adults, and thus has generated proposed legislation.  Perhaps Pennsylvania's history will resonate with those addressing similar concerns in other jurisdictions:

  • In 2010, the Pennsylvania Supreme Court addressed the question of whether a state agency that was responsible for administering a specific retirement fund was entitled to good faith immunity under state law when taking action in reliance on a purported Power of Attorney (POA) presented by the spouse as agent of his employee/wife.  In Vine v. Commonwealth of Pennsylvania, a majority of the Court concluded that where the employee's "X" on the POA was improperly obtained by her husband while she was incapacitated after a life threatening car accident, the POA was invalid  -- in other words "void" -- and therefore the "immunity" conferred by the state's POA law was not available to the agency.   (There were  strong dissents to the majority's ruling,).   The decision had implications for POAs generally, and certainly POAs presented by family members or others to banks on behalf of older people who needed or desired agents to handle financial matters.  In Pennsylvania, financial institutions began questioning POAs, seeking reassurances that the document in question was valid.  The commercial viability of POAs was thus at risk. This became known as the "Vine" problem in Pennsylvania.
  • Attorneys representing various stakeholders, including families, financial institutions and district attorneys, began to weigh-in with proposed "fixes" for the Vine problem, while sometimes also raising other concerns related to financial abuse of older or vulnerable adults.
  • The Uniform Law Commission, after years of hard work by academics, judges, attorneys and other interested parties nationwide, issued a proposed "Uniform Power of Attorney Act" (UPOAA) in 2006. Central to the proposed legislation were safeguards intended to better protect the incapacitated principal, as well as address concerns by agents and third parties. By 2014, fourteen states have enacted revisions of POA laws, drawing upon the Uniform Act for guidance. As with other uniform law movements, the Commission's work on UPOAA  recognized the need for accepted standards for instruments used in national commerce, instruments that frequently cross state borders. 
  • In Pennsylvania, the UPOAA has influenced two bills, House Bill 1429 (introduced by Representative Keller) and Senate Bill 620 (introduced by Senator Greenleaf).  Each bill passed in their respective houses.  (This single sentence truncates several years of  history about the negotiations, all set against the background of need for a "Vine" fix.)  Both bills address the concerns of banks and other third-parties who want reassurances that they may rely in good faith on POAs that appear on their face to be valid.
  • Following legislative hearings that included testimony from individuals representing banks, legal service agencies, and protective service agencies,  other legislative proposals emerged.  These pending bills include: SB 621 (Senator Greenleaf) with significant, additional updates to POA laws, as well as other parts of the probate code; HB 2014 (Representative Hennessey) proposing significant revisions of the state's Older Adult Protective Services Act; and HB 2057 (Representative White) amending the Older Adult Protective Services Act to create a private right of action, including attorneys fees and punitive damages, for victims of exploitation against the abusers. 

In Pennsylvania, which has a year-round legislature, there tend to be two windows for major action on pending legislation, including the "budget" cycle that ends on July 1 and again during autumn months.  In following the various bills, it seems to me likely that HB 1429 will be the vehicle for the "Vine" fix.  There is also the possibility that Senator Greenleaf's second bill, SB 621, and other tweaks will be passed, either as standalone legislation or as amendments to HB 1429 or other bills.  Thus, for interested persons and stakeholders, the weeks leading up to July 1 will mean keeping a watchful eye (and alert ear) for last minute changes.

All of the stakeholders are well-intentioned and concerned about the best interests of older adults who because of frailty often have no choice but to rely on agents or others acting in a fiduciary capacity. 

At the same time, as I've watched the events of the last four years in Pennsylvania come to a peak the last six months, I've observed a complicating factor.  Those who are most likely to see violations of POAs, including district attorneys, protective service agencies and the courts, probably do not see the larger volume of commercial transactions that happen routinely and appropriately without the added cost of enhanced accounting or oversight.  By comparison, professional advisors who routinely facilitate families in estate planning, including transactional attorneys, tend not to see the abusers. Finally, financial institutions, who probably feel caught in the middle, and who are often on the front lines of witnessing potential abuse, seek the ability to report suspected abuse without incurring liability, while also avoiding the costs of becoming "mandatory" reporters (a topic addressed in some proposed amendments of the Older Adult Protective Services Act).  Thus it is challenging to balance the viewpoints of different groups in crafting effective (including cost effective) solutions.

There is also the potential that by focusing primarily on POAs, which in Pennsylvania is driven by a very real need for a "Vine" fix, we may be missing or minimizing other significant instances of abuse via joint accounts, questionably "signed" checks, or misuse of bank cards and credit cards.  The amounts of money per transaction may be smaller in those instances, but depending on the victim's resources, the impact may be even more significant.

Ironically, as the population of older adults increases, state funding, including Pennsylvania funding, is under constant threat, thus weakening Protective Services, Legal Services and the courts, all entities that can help victims, and that have expertise in investigation and intervention where abuse is indicated.

April 12, 2014 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)

Monday, March 24, 2014

Call for a "Collaborative National Strategy" On Elder Abuse

Law Professor and Deputy Dean Wendy Lacey has published a comprehensive article detailing challenges that exist in addressing the growing phenomenon of elder abuse, including:

  • Lack of a comprehensive, national mandate for safeguard of older adults;
  • Lack of innovative legal reforms at the state level;
  • Ageism;
  • Invisibility of our older people;
  • Lack of awareness within the community of the prevalence, nature and signs of elder abuse;
  • Absence of an international normative framework for protecting the rights of older persons.

All of these points strike a chord for those who work on behalf of victims of abuse in the United States.  Of course, the fact that this list is from Professor Lacey's article on "Neglectful to the Point of Cruelty? Elder Abuse and Rights of Older Persons in Australia," published in the Sydney Law Review in March, 2014, does not change the significance of her call for a "collaborative" strategy, "incorporating a rights-based approach to the review and reform" of laws, whether on a state, territorial, national or international basis.    

March 24, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Property Management | Permalink | Comments (0) | TrackBack (0)

Thursday, March 6, 2014

Court's Approval of Estate Account No Bar to Criminal Charges Against Trustee/Agent

In companion appellate cases, a brother and sister argued the Commonwealth of Pennsylvania was "collaterally estopped or otherwise barred by the constitution and/or statute" from bringing criminal charges against them arising from payments from a trust account, because of a civil order "approving" the final accounting in the estate.  Pointing out that the state was not a "party" to the Orphan's Court proceeding, even if it had an interest in proper disbursement of estate funds, the Pennsylvania Superior Court rejected the estoppel arguments as a "matter of law." 

The Court observed, "As [Charles] McCullough has indentified no ruling or filing in the certified record that made the Commonwealth a party to the Orphan's Court proceeding, we conclude that it was not a party. As such, collateral estoppel cannot apply."

The rulings in Commonwealth v. Charles McCullough and Commonwealth v. Kathleen McCullough, decided on February 27,  allow the siblings' cases to go forward on multiple criminal counts, including allegations of theft by unlawful taking and conspiracy.  The allegations go back to 2007, with multiple continuances of the scheduled trial dates.

The court appeared to credit the Commonwealth's theory that the complexity of the case was largely the result of the brother, a licensed attorney, who "intentionally obfuscated his roles as trustee and agent," creating confusion on the part of the bank, a co-trustee.  The brother was charged with "24 crimes arising from his actions as an agent and co-trustee for Shirley Jordan, now deceased. Jordan was approximately 90 years old, a widow without any children, and living in a senior living center when she executed a springing power of attorney in favor of McCollough."  The Court observed that it was estimated that "Jordan had assets of approximately fourteen million dollars at the time."  

Charles is accused of misusing Jordan's assets for his own benefit (including an alleged $10,000 gift to a charity allegedly connected to his family) and of arranging for his sister to be hired at an "exorbitant" rate of $60 per hour for companion services for the elderly woman, as compared to a "Department of Labor estimate of average wages of $8.63 to $9.74 per hour." 

The appellate opinions in the cases are fairly dry.  In fact, the sister was charged with theft of what, at first blush, seems like a fairly small sum, $4,575.01. 

The larger back story, however, includes the allegation that the sister was "hired" as a companion by her brother, using his authority under a Power of Attorney, just weeks after she had been fired and accused of misappropriating more than $1 million from her previous corporate employer. In a separate criminal proceeding, Kathleen McCullough was convicted in 2010 of theft from two companies that employed her, as detailed in the Pittsburgh Post-Gazette.  

March 6, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, February 28, 2014

Kansas Attorney Disbarred After Forgery of Estate Planning Documents

In the February 7 disbarment of Kansas attorney Daniel R. Beck, the disciplinary record describes a cascading series of events (including the fact that Beck continued to practice law while on administrative suspension). The heart of the case is the attorney's role in execution of "updated" estate planning documents. 

During the disciplinary proceedings, Beck was found to have directed a man to forge the signature of the man's mother, a 90-year old woman in a nursing home, on key documents. Further, the attorney forged the name of his own secretary as the notary on the documents that included a family trust, a general durable power of attorney, a living will, a last will and testament, a health care power of attorney, an assignment of personal property, and an authorization to release health care information.  

The attorney had drafted the original estate plan for the woman and her then-husband. In preparing and executing the "updated" documents, he was interacting solely with the son, although the record does not suggest the son was seeking or receiving any "benefit" from the changes.    

In attempting to avoid major sanctions, the attorney argued that some of the updates, such as a "new" power of attorney and healthcare power of attorney, were necessary "because in his experience sometimes hospitals and financial institutions would not honor those documents if the documents are from a long time ago." At the same time he argued the updated documents made no substantive changes to the existing plan. No harm, no foul as a defense? The Kansas Supreme Court rejected the argument that the attorney's actions caused no harm to the woman in the nursing home, who died a few months after her signatures were forged:

"Respondent [Beck] admits L.H. was vulnerable but asserts that we must construe the word 'victim' to require a showing that the attorney's conduct 'actually exposed] [a] vulnerable client to real and significant harm,' and argues such as showing was not made in this case.

 

We  need not decide whether the term 'vulnerable victim' requires that an attorney expose a client to actual harm because we conclude the record contains adequate evidence of injury, including $2,800 L.H.'s trust paid to respondent for legal work L.H. never authorized, approved, or used....

 

Moreover, since respondent never spoke to L.H., he can only speculate as to whether the documents he drafted could comport with L.H.'s current wishes.  Put simply, an attorney injures, or at least potentially injures, a client when he or she takes legal action on the client's behalf without ever speaking with the client or ensuring that the proposed action is in accord with the client's wishes."

Hat tip to ElderLawGuy Jeff Marshall for this interesting opinion.           

February 28, 2014 in Advance Directives/End-of-Life, Crimes, Estates and Trusts | Permalink | Comments (0) | TrackBack (0)

Thursday, February 27, 2014

A Closer Look at Assisted Suicide Charges in Commonwealth v. Mancini

As earlier reported on this Blog, the Court of Common Pleas of Schuylkill County in Pennsylvania, dismissed the high profile criminal charges against Barbara Mancini, the nurse charged with "causing or aiding" the suicide of her aged father, in violation of 18 Pa.C.S. Section 2505(b).  The ruling reviewed testimony presented during a preliminary hearing before a magistrate, as required by the defendant's petition for a writ of habeas corpus.  Much has been said by proponents and opponents of assisted suicide in connection with this ruling, but here is the actual opinion, all 47 pages.

The opinion demonstrates a high level of emotion for everyone involved in the case, including the judge.  There was a gag order in place during the last several months, so key details about the evidence or the arguments made by counsel are only now available.  So, please forgive me if I now use the blogger's prerogative to do more than just report the facts. Three starting points:

  • What strikes me as important about this ruling is that it should not be misconstrued as a "win" for those who claim there is a constitutional or other legal right to provide or receive assistance in death. At least not in Pennsylvania under its current law. 
  • Further, a careful reading of the opinion demonstrates the potential for more confusion (and additional cases) for those who interpret -- misinterpret -- Powers of Attorney, Advance Health Care Directives, Living Wills, or Do Not Resuscitate Orders as granting them legal authority to provide assistance in suicide. Again, that is not the current law in Pennsylvania, or in most other states.   
  • Finally, a careful reading of the opinion makes it clear -- at least to me -- that the hospice aides who called 9-1-1 in response to the facts in front of them, were acting within the law. They were responding to what the opinion documents fairly well as "admissions" of the criminal act of assisted suicide, facts that took the matter beyond the patient's right to accept or reject life-saving efforts. 

In terms of "proof" of a criminal act, the opinion demonstrates the importance of careful preparation of a criminal case when called upon to demonstrate the prima facie elements of the crime charged, as occurs during a preliminary hearing. That is the job of the prosecution team, not the hospice workers. The prosecution, in this instance the Pennsylvania Attorney General's office, either failed or was unable to present independent proof of the facts alleged, and instead were focusing almost solely on the "admissions."  

In Pennsylvania, as the opinion discusses, the prosecution needed to present evidence of the person's intention to kill himself, action taken to effectuate the suicide, the third-party's intentional aid or assistance in that attempt, and evidence that the third party's action actually "caused" the attempted suicide.  Under Pennsylvania's corpus deliciti rule, the prosecution had to establish these elements without "just" relying on the defendant's own alleged admissios or confession. In particular, the opinion shows the importance of expert testimony to establish cause of death, needed in this case to explain "morphine toxicity." 

What the entire case also suggests -- not just the opinion -- is the need for Pennsylvania, and most states, to give fresh consideration to the topic of assisted suicide.  The record makes it pretty darn clear that Joe Yourshaw had lived a long life, fought the good fight, was ready to die, was tired of living in pain, and he was competent when talking about his wishes to die.  We cannot just stick our heads in the sand and say "this case isn't likely to happen again."

The tragedy associated with the last days of Joe Yourshaw and the confusion surrounding the circumstances under which Barbara Mancini, his daughter, was charged, are events that can and should permit Pennsylvania, like Oregon and Washington before it, to consider whether competent individuals with terminal illnesses should be permitted to work directly with health care professionals to make carefully considered decisions about whether to choose professional assistance with their death. Sons, daughters and spouses, whether or not "nurses," should not be put in this position, and other states have shown us there are options.

Some people will argue that the real tragedy would be to leave loving family members with no option but to violate the law (and either face the potential for criminal prosecution or "hide" the evidence) or turn a blind eye and deaf ear to a loved one's carefully considered pleas.  As you may be able to tell, while I think the hospice workers in this case were right to report the evidence they saw and heard that pointed to violation of Pennsylvania's current law, I'm one of those people ready to reconsider that law. 

February 27, 2014 in Advance Directives/End-of-Life, Crimes, Current Affairs, Ethical Issues, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, February 13, 2014

Pennsylvania Court Dismisses Charges for Daughter/Nurse Charged with Assisted Suicide

In August, 2013, we reported on the case of Barbara Mancini, charged with unlawful assisted suicide under Pennsylvania law, for the death of her 93 year old father, on hospice.  Mancini, a nurse, was alleged to have provided her father with a fatal dose of morphine. When hospice employees learned the circumstances of the transmission, a report was made that resulted in emergency removal of the father to the hospital, where he died four days later, followed by the criminal charges against the daughter.  Pennsylvania's Attorney General took over prosecution of the case, after the local D.A. reported a conflict of interest. 

On February 11, a county Common Pleas Court judge issued a multi-page opinion, dismissing the case against Mancini.  News reports point out that the court order was issued on the one year anniversary of her father's death.  The parties had been under a gag order.  Mancini has begun speaking about the case following the court's ruling, with support from organizations such as Compassion & Choices

My Elder Law Prof colleague Becky Morgan posted earlier today, asking whether "aid in dying" is a trend. More evidence in Pennsylvania that the answer is "yes," although we have not yet seen major support for changes at the legislative level in Pennsylvania.

My own reaction is that on several key fronts, including same sex marriage equality and legalization of marijuana, social change advocates have discovered there is enormous potential in "states' rights" -- once more the fortress for conservatives who opposed social change -- to build support, state by state, and thereby achieve cutting edge law reforms. Social media play increasingly important roles in organizing support. Perhaps this can be seen as a  "Face Book" approach to building momentum for social change and law reform.

February 13, 2014 in Crimes, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 28, 2014

"Whistleblower Laws in the 21st Century" - Penn State Dickinson Program on March 20

Senior Care -- in all of its guises -- is Big Business.  And much of that big business involves government contracts and government funding, and therefore the opportunity for whistleblower claims alleging mismanagement (or worse) of public dollars.  For example, in recent weeks, we've reported here on Elder Law Prof on the $30 million dollar settlement of a whistleblower case arising out of nursing home referrals for therapy; a $3 million dollar settlement of a whistleblower case in hospice care; and a $2.2 billion dollar settlement of a whistleblower case for off-prescription marketing of drugs, including drugs sold to patients with dementia

While the filing of charges in whistleblower cases often makes headlines, such as the recent front page coverage in the New York Times about the 8 separate whistleblower lawsuits against Health Management Associates in six states regarding treatment of patients covered by Medicare or Medicaid, the complexity of the issues can trigger investigations that last for years, impacting all parties regardless of the outcome, including the companies, their shareholders, their patients, and the whistleblowers, with the latter often cast into employment limbo.

Penn State Dickinson School of Law is hosting a program examining the impact of "Whistleblower Laws in the 21st Century: Greater Rewards, Heightened Risks, Increased Complexity" on March 20, 2014 in Carlisle, Pennsylvania. Trickett Hall, Penn State Dickinson School of Law, Carlisle

The speakers include Kathleen Clark, John S. Lehman Research Professor at Washington University Law  in St. Louis;  Claudia Williams, Associate General Counsel, The Hershey Company; Jeb White, Esq., with Nolan Auerbach & White; Scott Amey, General Counsel for the Project on Government Oversight (POGO); and Stanley Brand, Esq., Distinguished Fellow in Law and Government, Penn State Dickinson School of Law.    

Stay tuned for registration details, including availability of CLE credits.

January 28, 2014 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Sunday, January 26, 2014

HSBC Banking on Large Cash Withdrawals in England

According to BBC, HSBC has recently started asking at least some of its individual banking customers in England to explain "large" cash withdrawals, especially where the requested cash appears atypical of spending patterns. Financial exploitation is part of the concern. As reported by BBC, HSBC representatives explained:

"HSBC has said that following customer feedback, it was changing its policy: 'We ask our customers about the purpose of large cash withdrawals when they are unusual and out of keeping with the normal running of their account. Since last November, in some instances we may have also asked these customers to show us evidence of what the cash is required for.'

 

'The reason being we have an obligation to protect our customers, and to minimise the opportunity for financial crime. However, following feedback, we are immediately updating guidance to our customer facing staff to reiterate that it is not mandatory for customers to provide documentary evidence for large cash withdrawals, and on its own, failure to show evidence is not a reason to refuse a withdrawal. We are writing to apologise to any customer who has been given incorrect information and inconvenienced.'"

Not surprisingly, the new policy has already generated questions and concerns: 

"Douglas Carswell, the Conservative MP for Clacton, is alarmed by the new HSBC policy: 'All these regulations which have been imposed on banks allow enormous interpretation. It basically infantilises the customer. In a sense your money becomes pocket money and the bank becomes your parent.'

 

But Eric Leenders, head of retail at the British Bankers Association, said banks were sensible to ask questions of their customers: 'I can understand it's frustrating for customers. But if you are making the occasional large cash withdrawal, the bank wants to make sure it's the right way to make the payment.'"

January 26, 2014 in Crimes, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, January 13, 2014

Recent Moves to Protect Seniors from Fraud in Sale of Investment Products

A few years ago, one of the more perplexing cases handled by Penn State's Elder Protection Clinic involved the sale of deferred annuities (specifically, an annuity that would not fully mature for 20 years) to a senior, a widow in her early 80s. 

The individual was a ripe target for a manipulative sales pitch, having recently been diagnosed with early stages of dementia, even though at the moment of sale she was still living independently in her home.  She was able to talk and communicate; arguably she did not seem impaired.  She was told the product would save on taxes -- a pitch alluring to the frugal woman -- except for the fact that she really didn't need to save on taxes.  

If one lives long enough or has looming care needs even at an earlier age, an individual's post-death estate planning goals can conflict with pre-death care needs. In the clinic client's case, the woman's  annual income was modest, and her total estate was not large enough to trigger other major taxes.  The assets used to fund the annuity were virtually her entire savings.  Several months later, her daughter learned of the purchase, while exploring care options for her mother. Her mother was facing ineligibility for Medicaid, as the purchase of the deferred annuity would be treated as transfer, while the alternative was a large penalty if she cashed in the annuity "early." 

How often does this -- or worse -- happen? 

In "Still No Free Lunch: Recent Regulatory Initiatives to Protect Seniors From Fraud in the Sale of Investment Products," 41 Securities Regulation Law Journal 397 (Winter 2013) (paywall protected; available on Westlaw as 41 No 4 SECRLJ Art 2), attorneys  Ivan B. Knauer and Michele C. Zarychta address recent efforts to prevent or address fraudulent practices by an array of regulatory bodies. The 2013 piece updates their 2008 article (available at 36 No 4 SECRLJ Art 3). They outline several types of fraud and various financial products often marketed specifically to elders.  For example, they observe:

"One of the most pressing concerns of the regulatory entities is the improper -- or at least confusing-- use of 'senior' designations by professionals, implying that a professional has expertise or training in senior-specific issues.  FINRA [the Financial Industry Regulatory Authority] 'Rule of Conduct 2210 prohibits brokerage firms and brokers registered with FINRA from referencing nonexistent or self-conferred degrees or designations or referencing legitimate degrees or designations in a misleading manner.'  Misleading use of such designations may also violate federal securities laws or state laws."

The authors, who are experienced in representation of investment and financial service companies, recognize that business lawyers can help clients recognize the need to "take measures to ensure that their own policies and procedures protect seniors."  "Still No Free Lunch" is a reminder that attorneys who are advisers to companies can and should be a larger part of the solution, rather than be viewed as part of the problem. 

In reading the article, which emphasizes  regulators' programs to "educate" the public, I am struck by the likelihood that a key tipping point occurs when a senior's susceptibility to a manipulative pitch is outweighed by his or her weakened ability to recognize risk, regardless of any fraud-prevention education. That was true, for example, with our clinic's client.  Her life-time frugal nature was still intact; however, her judgment about whether she needed to "save" money on taxes was diminished. More education was not the solution for her, as she had probably lost the ability to appreciate its application.  Indeed, a common marketing practice to seniors -- free lunches or dinners disguised as "educational seminars" -- trades upon that very fact, thus giving rise to the "no free lunch" theme in both articles by authors Knauer and Zarychta.

The authors detail stepped up enforcement efforts, including recent measures by the Consumer Financial Protection Bureau, established in 2010. 

Hat tip to Penn State Dickinson Law Professor Lance Cole, who shared this interesting article.

January 13, 2014 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Ethical Issues, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 7, 2014

Ethics In the Practice of Elder Law: Book by Flowers & Morgan

Roberta FlowersI love book stores, and at the AALS Annual Meeting the next best thing is the book publishers' booths.  I always ask representatives about "what's new" in aging.  This year the answer was a book I should have read already, especially as it is co-authored by Elder Law Prof Blogger Becky Morgan and her Stetson colleague, Roberta Flowers.  It was great to have my new copy with me for my train ride home through the frozen mid-Atlantic corridor. Rebecca Morgan

Their book, Ethics in the Practice of Elder Law, published in 2013 by the American Bar Association, is an important reference book for students and practitioners. It also strikes me as the kind of book that could support an entire day of CLE programming and discussion on professional responsibilities, not just for elder law attorneys but for lawyers in family or corporate practices, where there is a clear potential for questions of conflict of interest.  The organization of the book is interesting, too, with short opening fact patterns and highlighted questions introducing each chapter. The topics include:

  1. Where to Go for Guidance
  2. Who Is the Client?
  3. Who Can I Talk To?
  4. Who Can I Represent?
  5. Representing Clients Who May Have Diminished Capacity
  6. Ethical Issues in a Guardianship
  7. Whom Do I Represent in Complex Fiduciary Representation?
  8. To Litigate or Not to Litigate - That Is the Question
  9. Ancillary Services and Marketing

That last chapter is a good example of an important discussion topic for practicing lawyers.  One of the trends in U.S. elder practice is the one-stop shop, where a lawyer might also offer ancillary services or products, such as annuities used by families in Medicaid planning.  The authors caution that an attorney must be careful to identify and carefully disclose whether the attorney has a "financial interest" in a service or product recommended for a client. Throughout the book, they provide state-specific sources of ethics analysis.  For example, they cite and quote from state ethics opinions regarding various ancillary services or marketing practices (and it could be important to expand this topic in future editions).   

Roberta and Becky also offer useful checklists and draft letters (including engagement letters); the paper-back text is accompanied by a CD-ROM.

January 7, 2014 in Crimes, Ethical Issues, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 31, 2013

Cash in the Hands of Aging Relatives

My colleagues at Penn State Law have often provided practical fact patterns useful for discussion in my Elder Law class. A number of years ago, one of my colleagues shared the problem of his mother believing that caregivers were stealing from her.  It was hard to know whether her worries were real or the product of diminishing capacity -- or perhaps just a variation on her documented obsession with frugality

Along that same line, a New York Times writer tracks how he and his siblings have tried to keep track of their aging father's preference for cash.  I'm sure that having cash on hand can be an important component of maintaining personal dignity, even if risky in a larger sense.  For more, read Patrick Egan's "Tracking a Thief, Once You Know There Is One," recently published by the New York Times.

Hat Tip to Professor Laurel Terry for the link to this interesting essay.

December 31, 2013 in Crimes, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Friday, December 27, 2013

A Fitting End? 28 Years on the Run = 28 Years in Prison

John Donald Cody, Harvard-trained lawyer and purportedly once engaged in military intelligence, disappeared from his law office in southern Arizona some 28 years ago.  He was one step ahead of prosecution then -- suspected of stealing money from clients' trust funds.  Changing his name and location over the years, his crimes only got bolder and more trust-abusing.

In December 2013, 66-year old Cody, a/k/a Bobby Thompson and "Mr. X," came full circle, sentenced to 28 years in prison for a multi-million dollar fraud, operating a high-profile charity scam that he called the "United States Veterans Association."  

It is a colorful tale, and I just hope it is not made into a movie glorifying his misdeeds.  But, one colorful detail I cannot help but report:  Cuyahoga Ohio Judge Steven Gall also sentenced Cody to spend each Veterans Day of his prison time in solitary confinement.   

December 27, 2013 in Crimes | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 18, 2013

Stanford: Getting a Better Picture of Financial Fraud

A study released in December by the  Stanford Center on Longevity addresses one of my frequent concerns.  Reports on elder abuse, particularly those on financial abuse and exploitation, routinely include a statement to the effect that "X number of financial fraud cases were examined during the year" but that that more time/money/energy should be devoted to addressing the problem "because X plus Y number of cases exist" but are unreported.  There is rarely any explanation for the prediction.  While I accept that there is likely to be underreporting, don't we need better measurement tools than intuition? 

In "The Scope of the Problem: An Overview of Fraud Prevelance Measurement," Stanford researchers address exactly this issue.  "'Without accurate and reliable estimates of fraud,' wrote Martha Deevy, director of the Financial Security Division at the Stanford Center on Longevity, 'it is difficult to understand what works or does not work to protect victims from harm.'"  The problem may be not just underreporting, but "underadmitting," especially for victims of elder abuse.

The Stanford report illustrates how analysis of recent sources and methodology can explain variations in predictions, thus also helping to design better tools for the future, including better surveys.  For example, they point to the 2011 study of elder abuse in New York State by Lachs & Berman, "notable as a comprehensive endeavor that used multiple sources of data and collaboration among community, governmental, and academic partners to get a sense of the 'big picture' problem." 

Thanks to my colleague, Laurel Terry, for sharing this report.  Laurel and Howard are the justifiably proud parents of a Stanford sophomore. 

December 18, 2013 in Crimes, Ethical Issues, Property Management, Statistics | Permalink | Comments (0) | TrackBack (0)

Sunday, December 15, 2013

Landmark trial in New Mexico could set important precedent on death with dignity

 
Received from Kathryn Tucker of Compassion & Choices:
Compassion & Choices and the ACLU of New Mexico today concluded arguments in a landmark trial seeking to establish that aid in dying is legal in New Mexico. Morris v. New Mexico is a test case, bringing before a court for the first time the claim that ambiguous state laws prohibiting “assisted suicide” do not apply to physicians who write aid-in-dying prescriptions to mentally competent, terminally ill adults.
The court accepted an amicus brief in the case filed by the New Mexico Psychological Association. It concludes that “the practice of good professional psychology in New Mexico requires that the law … recognize that aid in dying is not a form of suicide.” The trial included two days of testimony from patient and physician plaintiffs, and expert witnesses. The judge said she intends to rule on the case within 30 days.
Compassion & Choices Director of Legal Affairs and Advocacy Kathryn Tucker and ACLU of New Mexico Legal Director Laura Schauer Ives jointly represent the plaintiffs. Tucker was counsel in a somewhat similar Montana case in which the right to choose aid in dying was recognized, Baxter v. Montana.
“This case challenges the assumption that vague, antiquated prohibitions of assisted suicide pertain to aid in dying. The assumption is unfounded,” says Tucker. “Such laws are intended to prevent the impulsive act of an otherwise healthy person to end his life, perhaps due to situational depression, causing impaired judgment. The choice of a mentally competent, terminally ill patient to cut short suffering before death, when the patient finds the dying process unbearable, is fundamentally different and not addressed by such laws.”
“I don’t want to suffer needlessly at the end,” she testified in court.
Patient plaintiff 49-year-old Aja Riggs testified about being diagnosed with advanced uterine cancer and wanting the comfort of knowing the option of aid in dying is available if her suffering in the final stages of her illness becomes unbearable.  Thankfully, Aja’s cancer has been in remission for about one year, but she realizes that statistically it is likely to return.
One of the physician witnesses was plaintiff Dr. Katherine Morris. She is a surgical oncologist from Albuquerque who previously practiced in Oregon, where she provided aid in dying to terminally ill patients. Dr. Morris and one of her patients were featured in HBO’s 2011 award-winning documentary, “How to Die in Oregon.”  “There are a lot of cruel things cancer can do, especially as they [patients] approach the end,” Dr. Morris testified in court.
Read the AP story here.

December 15, 2013 in Advance Directives/End-of-Life, Crimes, Ethical Issues, Health Care/Long Term Care | Permalink | TrackBack (0)

Friday, December 13, 2013

Elder Exploitation: PA Hearings on Protective Services Tackle Tough Topics

Pennsylvania State Capitol December 2013Pennsylvania's House of Representatives has been holding a series of hearings on elder abuse, in anticipation of potential amendments to the state's Older Adult Protective Services Act.  The hearings offer presentations and panel discussions with experts speaking from different perspectives, including administration, law enforcement, providers, and advocates from various organizations. 

I was invited to speak at the last panel on the topic of "financial exploitation," as a member of the Pennsylvania Bar Association's Elder Law Section, and because of my experience as the former head of Penn State Dickinson's Elder Protection Clinic. [UPDATE: Here's a link to my written testimony, submitted in advance of hearing.]  Other speakers included representatives of the Pennsylvania Bankers Association; community banks; credit unions; and from Area Agencies on Aging that are charged with investigation of reports of suspected abuse.  A particularly strong speaker was Linda Mill, a certified financial examiner and former banker, who is now the investigations manager for Temple University's Institute on Protective Services.

During the bankers' presentations, speakers emphasized their institutions' training for all levels of personnel to spot red flags of abuse.  This was part of their argument against any need for the state to adopt "mandatory reporting" of suspected abuse by banks and other financial institutions. ElderAbuseHearing- Panel of Witnesses   In contrast, Mills testified that during the last ten years, despite her history of working on the bankers' side, she had come to the personal conclusion that mandatory reporting is necessary in order to provide more timely, effective investigation by public authorities. Mills pointed to Maryland's 2012 adoption of mandatory reporting as precedent.  

ElderAbuseHearing-CoChairsThe interaction between panelists and legislators was robust. For example, Committee Co-Chair Steve Samuelson (in the photo on the right, seated next to Chairman Tim Hennessey) asked whether agents under powers of attorney should be required to file annual reports to facilitate greater accountability.  Representative Stephen McCarter asked about the practicality of "bonding" for agents using POAs. Representative Harold English had a detailed list, including the possibility of "payback" to fund investigative services and mandatory "recording" of current documents in order to make it clearer about which POAs are "in effect." He also expressed concern about annuity sales to elders.      

Draft legislation updating Pennsylvania's Older Adult Protective Services Act is expected to circulate for comment later this month.  

Special thanks to Eric Kovac from the Pennsylvania Bankers Association for sharing copies of his "insider" photos from the hearing. 

December 13, 2013 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 4, 2013

Community, Dementia, and Risk: A Tragedy in Georgia

Writer Kim Severson at the New York Times reports on the death of 72-year old Ronald Westbrook, shot by Georgia homeowner Joe Hendrix after trying to gain entrance to  Hendrix's home:

"In the confusion that comes from Alzheimer’s, Mr. Westbrook had taken to collecting the mail from neighbors’ mailboxes. He was doing so that night on Marbletop Road, which is a mile or so from his home. He told the deputy he lived in a nearby house, which at one time, years ago, he had. 'Better get home,' the deputy said. 'It’s cold.'       

 

The deputy drove on, and Mr. Westbrook, in a straw hat and a jacket too light for the weather, continued walking with his dogs. Just before 4 a.m., he was nearly three miles from home in the subdivision of modest new houses where Mr. Hendrix lives, near Chattanooga."

While the NYT story focuses mostly on the fear, confusion, and potential impact of Stand Your Ground laws, as factors potentially contributing to the older man's death, I am reminded of another story I blogged about earlier, where a wandering man with early onset dementia ended up in jail, only to suffer a brutal beating at the hands of a cellmate when authorities failed to recognize the implications of the man's confusion. Ironically, that case too was in Georgia. 

In both instances, it seems that public authorities arguably had a chance to shepherd their wandering citizens to a safer setting.   

December 4, 2013 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 3, 2013

Laws Mandating Oversight for Management of Resident Trust Accounts?

USA Today continues reporting on criminal misuse of resident funds held in accounts at nursing homes, pointing to the lack of clear laws requiring faculities to conduct audits or other oversight systems for resident accounts: 

"Federal law provides the regulatory framework for the nation's 16,000 nursing homes, which have to meet an array of standards to participate in Medicare and Medicaid. Federal rules do not require audits for resident trust fund accounts, and most states take the same approach.

 

The U.S. Centers for Medicare and Medicaid Services, the federal agency responsible for nursing home regulation, is considering whether additional oversight is needed to address theft and mismanagement of residents' funds.

 

 'We are aware of this situation and are reviewing the (inspection) procedures used to detect these kinds of problems,' agency spokesman Aaron Albright said when asked about USA TODAY's findings. 'CMS takes safeguarding nursing home patients very seriously.'"

 

December 3, 2013 in Crimes, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, Property Management | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 26, 2013

Beware of Befrienders -- A New Hampshire Case Example

While working in Europe, I first heard the label "befrienders," as applied to people who work their way into the lives of disabled or elderly persons.  The relationship often starts with the befriender doing small, helpful tasks; over time, the helper gains trust that enables him or her to have a greater role in the elder's life, thus opening the door to exploitation of the person's diminishing powers of judgment, while gaining complete control over finances. 

On November 5, the New Hampshire Supreme Court affirmed convictions on nine of eleven criminal counts for "befriender" Karen Gagne, accused of stealing over $500,000 from a ninety year old woman in a retirement center. The case is State of New Hampshire v. Karen Gagne, 2013 WL 512499 (2013).   

I plan to write more in the future about the technical details of the crimes charged in this context, but one of the clear lessons from the history in this particular case is how much time it may take for the befriending pattern to develop and "ripen" into fraud that is recognized by third-parties.  For example, Karen Gagne's involvement with the victim spanned years: 

"The defendant met the victim in the 1980s when the defendant performed landscaping services at the victim's home. The two became friends and subsequently lived together as companions in the victim's home for at least one year until the victim asked the defendant to move out. In the summer of 2006, the defendant and the victim rekindled their friendship. The victim moved to Pleasant View Retirement Home (Pleasant View), and the defendant began driving the victim to doctors' appointments and nail appointments, and taking her to lunch. In addition, although the victim had previously had an accountant pay her larger bills, the defendant began handling the victim's bills, including payment of her rent at Pleasant View."

At some point, "helpful" friend Gagne began liquidating the elder woman's annuities or other property and borrowing additional money under the elder's name. 

The fact that Gagne was giving herself gifts might not have been discovered, except that by the fall of 2008, Gagne was no longer making regular rent payments to the retirement home.  She offered excuses, such as blaming a "grandson or nephew" for stealing money, and claimed that she, Gagne, was trying to "recover" the money in order to pay the victim's bills. By late 2009, the victim was so far behind in rental payments -- and the excuses had become so unbelievable -- that the facility's executive director contacted the Attorney General's office, thus leading to the criminal charges.

Having sat through trials of similar cases, and having read transcripts of other cases, I can just imagine how Gagne would try to justify her thefts, arguing that "her friend wanted her to have the money" to explain why the 90-year old woman had "signed" checks she wrote out for her.  In fact,  this "gift" argument actually worked as a defense to two of the criminal counts in the case, where the older woman had personal involvement in transactions.  Nonetheless, on the majority of criminal counts, the Supreme Court concluded "the defendant was not privileged to infringe upon the victim's interest" in joint accounts, nor was Gagne justified in misapplication of funds she was handling as a "financial representative" of the elder. 

Karen Gagne was originally sentenced to "an aggregate of 10 to 30 years in New Hampshire State Prison for Woman." It is not clear from the opinion whether remand on the overturn of two of the elevent counts would trigger a resentencing. 

New Hampshire, by the way, is the state that recently passed a new law, permitting long-term care facilities to sue "fiduciaries" who misuse assets of a resident, if that misuse results in "disqualification" of the resident for Medicaid, as we discussed earlier this month.   

November 26, 2013 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 19, 2013

Keeping an "Eye" on Your Parents (And, By The Way, Their Caregivers)

This semester in Penn State's Elder Law class, I encouraged students to write one of their two required short papers on some aspect of the "future of elder law," in the largest sense of that phrase.  Several students examined technology and aging, including use of video technology to monitor care or provide tracking of medication or movement.  One student's paper is about due process implications of monitoring for staff and family members. 

The future is now, of course, in the world of video technology, especially in a CCTV world of almost constant surveillance.   The New York Times reports another dramatic example of abuse as caught on "granny cams" used in a nursing home.  In "Watchful Eye in Nursing Homes," writer Jan Hoffman details examples of abuse bordering on torture caught on video at an Oklahoma nursing home.

The article points to the trend in state legislation or regulations expressly authorizing video monitoring, laws that attempt to strike a balance between potential rights of privacy and safety:

"On Nov. 1, propelled by the outcry over the Mayberry case, Oklahoma became the third state — along with New Mexico and Texas — to explicitly permit residents in long-term care facilities to maintain surveillance cameras in their rooms. In the last two years, at least five states have considered similar legislation. Although some states have administrative guidelines for electronic monitoring, most legislative efforts have stalled because of questions about liability and, in particular, privacy rights, raised by facility owners, unions, elder care lawyers and families."

Our friend and colleague, Nina Kohn, elder law professor extraordinaire at Syracuse Law, is quoted in the article on the need for caution in implementing surveillance. 

November 19, 2013 in Crimes, Ethical Issues, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, November 14, 2013

Senate Subcommitte on Aging launches anti-fraud hotline, senior-friendly website

Via the Senate Special Committee on Aging:

If you or someone you know suspect you’ve been victim of a scam or fraud aimed at seniors, the U.S. Senate Special Committee on Aging has set up a new toll-free hotline to help.  The hotline was unveiled today to make it easier for senior citizens to report suspected fraud and receive assistance.   It will be staffed by a team of committee investigators weekdays from 9 a.m. to 5 p.m. EST.  The investigators, who have experience with investment scams, identity theft, bogus sweepstakes and lottery schemes, Medicare and Social Security fraud, and a variety of other senior exploitation issues, will directly examine complaints and, if appropriate, refer them to the proper authorities.

Anyone with information about suspected fraud can call the toll-free fraud hotline at 1-855-303-9470, or contact the committee through its website, located at http://www.aging.senate.gov/fraud-hotline.  As chairman and ranking member of the committee, Sens. Bill Nelson (D-FL) and Susan Collins (R-ME) have made consumer protection and fraud prevention a primary focus of the committee’s work.  This year the panel has held hearings examining Jamaican lottery scams, tax-related identity theft, Social Security fraud and payday loans impact on seniors. 


The hotline’s unveiling also coPhoneincides with the committee’s launch of an enhanced senior-friendly website.   The site’s new features include large print, simple navigation and an uncluttered layout that enables seniors to find information more easily and conveniently.  Online visitors can also increase text size, change colors or view a text-only version of the site.  
 
 

November 14, 2013 in Consumer Information, Crimes, Elder Abuse/Guardianship/Conservatorship, Web/Tech | Permalink | TrackBack (0)