Thursday, July 12, 2018
What Lessons Will Emerge From Arizona Investigation of 92-Year Old Woman Who Shot and Killed Her 72-Year Old Son?
Reading the news of a July 2 shooting was chilling, especially for anyone associated with long-term care or elder care. According to Arizona news reports, Anna Mae Blessing, age 92, explained, "You took my life, so I'm taking yours." She used a handgun, drawing it from the pocket of her robe, to shoot multiple times, killing her 72-year old son.
Ms. Blessing had been living in an apartment, along with her son and his girlfriend; she was reportedly upset about her son's plan to transfer her to an assisted-living facility. The apartment was located in Fountain Hills, east of Scottsdale, Arizona. Ms. Blessing also reportedly attempted, unsuccessfully, to shoot her son's girlfriend, who fought her off, dislodging both the first and a second handgun.
Followup stories reported the sheriff's office had responded at least six times to "domestic" calls at that location during the previous six months.
According to a sheriff office statement, Ms. Blessing is now charged with first degree murder, one count of aggravated assault with a deadly weapon and one count of kidnapping.
On the one hand, it could be tempting to dismiss this story as an isolated, sad, ironic tragedy.
But what I've been seeing is that senior living providers, especially those offering assisted living, are recognizing that something is deeply amiss about an individual's perception that assisted living is so horrible as to warrant this reaction.
Steve Moran who publishes the Senior Housing Forum asks "Why did she have such an aversion to assisted living?" He muses, "This is a fixable problem....." For more of Steve's thoughts read: "The Headline: Woman, 92, Killed Son Who Tried Putting Her in Assisted Living."
In an editorial titled "Assisted Living's Image Problem," Lois Bowers, Senior Editor for McKnight's Senior Living News, writes:
The Blessing case undoubtedly is a complex one, with more probably in play than a simple suggestion of a move to assisted living. But even so, it presents an opportunity for introspection for the senior living industry as well.
I mean, it seems that at least one person thought that assisted living was so terrible that a prison cell was preferable. And yes, this appears to be an extreme case, but it's not the first time that an older adult has resisted moving into a senior living community.
We know that senior living can offer physical and mental health benefits for older adults. So how can the industry improve at allaying their fears and educating them about those benefits?
And what can the industry do to educate the general public about the differences between assisted living communities and skilled nursing centers? More elucidation is needed, as was made obvious by articles in the lay press about the Blessing incident that used “assisted living” and “nursing home” interchangeably, despite a press release from the sheriff's office that specified that Thomas suggested assisted living to his mother (I know; I saw the press release).
We know that assisted living communities are different from SNFs, and we know that both types of facilities have evolved over the years, and yet I see this confusion regularly in the general media. I've seen government officials make this mistake, too.
So what's the solution? Surely, sales professionals educate individual prospects and their family members when they conduct tours and hold special events at their communities. Campaigns such as the American Seniors Housing Association's Where You Live Matters effort undoubtedly help, too, as does the advocacy work by organizations representing senior living operators.
I was in Arizona the day the story broke. I confess, I spent extra time with my arm around my own 92-year old mother that week -- at her home in assisted living.
July 12, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
The National Center for Law & Elder Rights (NCLER) has released a fact sheet explaining a new law that allows consumers to place freezes on their credit info for free, starting on September 21, 2018. New Law Provides Free Security Freezes and Increased Fraud Alert Protection explains that "[o]n May 24, 2018, the President signed Public Law 115-174 into law. Section 301 of Public Law 115-174 amends the Fair Credit Reporting Act, to establish a new federal right for consumers to implement a security freeze of their credit file." (citations omitted).
The legislation establishes standards for the creation, temporary lifting or “thaw,” and permanent removal of security freezes from the nationwide consumer reporting agencies. The security freezes are essentially limited to parties seeking the consumer’s information for credit purposes. The freeze does not apply to parties who seek the report for employment, insurance, or tenant-screening purposes. It also does not apply to existing creditors or their agents or assignees conducting an account review, collecting on a financial obligation owed them, or seeking to extend a “firm offer of credit” (i.e.,prescreening).
In addition, the new law preempts state credit freeze laws and expands the length of fraud alerts from 3 months to a full year! Further, "[t]he legislation’s preemption extends to any state requirement or prohibition with respect to subject matter regulated by the statute’s provisions relating to security freezes. For example, some state statutes are stronger than the new federal standards by allowing consumers to freeze access to credit reports for employment or insurance purposes." There is also a provision covering when a fiduciary needs to secure a freeze for an individual who is incapacitated.
July 12, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, June 27, 2018
Mark your calendars for a free webinar on Financial Exploitation and Medicare Fraud. The National Center on Law & Elder Rights will be offering this webinar on Wednesday, July 18, 2018 from 2-3 edt. Here's info about the webinar
Medicare fraud hurts individuals and is harmful to the Medicare Trust Fund. The Medicare Trust fund loses between $60 and $90 billion dollars every year to fraud, waste and abuse. Individuals can lose access to Medicare services because their identity has been misappropriated by someone else. Law and aging advocates play an important role in helping older adults prevent, detect, and report Medicare fraud and abuse.
In this free webinar, Financial Exploitation and Medicare Fraud, California’s Senior Medicare Patrol will teach advocates how to identify potential Medicare scams and report fraud and abuse to the Senior Medicare Patrol. Justice in Aging will highlight potential exploitive Medicare practices and outlines strategies to help prevent exploitation.
To register, click here
June 27, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Webinars | Permalink | Comments (0)
Wednesday, June 20, 2018
On Friday, July 13, from 2:00–3:00 p.m. eastern time, the Elder Justice Initiative presents the webinar “The Forgotten Victims: Elder Homicides Part 2, A Prosecutor's Perspective." Please join us as Belle Chen of the Los Angeles County District Attorney’s Office discusses the unique challenges of investigating and prosecuting elder and dependent neglect homicides... This webinar will highlight some of the challenges and common dynamics in these cases through a comparison of two elder neglect cases that went to trial and were presented to juries. This presentation can aid law enforcement in their investigations of complex elder neglect cases and prosecutors in their review, filing, and litigation in criminal court.
To register, click here
Monday, June 18, 2018
One of our good readers sent us an item by CityLimits.org tracking recent complaints made to (and about) the NY Attorney General. The title of the article is They Say Legal Guardians Ripped Them Off-- and the State AG Let Them. I've come to expect that when I see an investigative piece on problems with guardians, I will read comments from a range of national advocates, such as Dr. Sam Sugar of Americans Against Abusive Probate Guardianship or Richard Black with the Center for Estate Administration Reform. Both individuals comment in this particular piece.
There are many challenges ahead for much needed reform efforts, including the fact that different laws can govern different forms of fiduciary relationships. For example, even though the article focuses in major part on "guardians," a label used to describe individuals or entities appointed by the court to assist an individual deemed incapacitated and unable to handle his or her own affairs without such a court-appointment, the article demonstrates that the problems can arise outside the guardianship arena.
In the opening tale for the article, the individual in need of assistance, a 31 year old disabled daughter, was apparently the the beneficiary of her deceased father's trust. The father became entangled with an untrustworthy individual shortly before his death, and that person was named the trustee. The actions by that individual -- described in the article as a "disbarred" lawyer and former state senator -- control much of the dynamic. It is not clear from the article whether the daughter's parents were estranged before the death of her father, thus sidelining the mother from accessing the trust in trying to help their daughter. Guardians later appointed by court for the daughter reportedly contributed to the costs for the estate. Yet key allegations of abuse focus on the actions of the alleged untrustworthy trustee, who was selected for this fiduciary role by the father, not the court.
The article reports on this as an example where the AG has allegedly declined to intervene following reports of fiduciary abuse.
Guardianship reform is important and, thank goodness, is ongoing in many states. But true reform is needed in the hearts and minds of abusive individuals in a variety of financial caregiving relationships, not just guardianships. The challenges for courts and law enforcement officers, including AGs and other prosecutors, will only grow without a stronger ethical commitment at the core.
June 18, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Friday, June 15, 2018
Sad news is emerging from Los Angeles that Stan Lee, the legendary comic book author, film producer, Marvel Comic magnate and occasional actor (often with brilliant, subtle cameos) went to court this week. He was seeking a temporary restraining order against Keya Morgan, sometimes described as a business partner and long-time manager, who reportedly had been serving as a caregiver for Lee after the death of his wife last year. Stan Lee is 95 and the grounds alleged in the petition include "elder abuse." The court granted Lee a temporary order on June 13, and scheduled a further hearing for July. The defendant denies all charges.
Here are additional details from CNN Entertainment, including a collage of clips, sometimes sadly ironic given the charges, from some of Mr. Lee's appearances in films over the years.
Thursday, June 14, 2018
The Evolution of Email Scammers: Moving from Granny, to Granny's Lawyers and Financial Companies as Their Targets
In my Elder Protection Clinic days, I met with family members of older adults victimized by off-shore scammers. In one notable case, the older mother, normally a savvy woman about her personal finances, had succumbed to the flattery of someone posing as a financial advisor, who offered her various new "investments." He knew just how to work her, appealing to her "business acumen," using internet maps to learn about her neighborhood and thus to make it seem his office was in a building near her bank in a suburb of Pittsburgh. Even after her daughter, with the help of a legitimate financial advisor who caught the unusual activity on the mother's accounts, shut down any easy means of access to her mom, the mother continued to believe the perpetrator was just bad at financial advice, and not totally corrupt.
The elderly mother's judgment on who to trust was impaired, but the impairment was specific and hard to recognize because she otherwise functioned fairly well. The combination of the perpetrator's flattery, his appeal to her once-strong financial skills, and the fact that she was lonely, trapped in her house as her physical strength was waning, all contributed to the success of the scam. It all began with a single email.
A recent announcement by the FBI of a coordinated law enforcement effort to disrupt international scammers reveals how the scamming industry has evolved. The FBI explains:
Operation WireWire—which also included the Department of Homeland Security, the Department of the Treasury, and the U.S. Postal Inspection Service—involved a six-month sweep that culminated in over two weeks of intensified law enforcement activity resulting in 74 arrests in the U.S. and overseas, including 42 in the U.S., 29 in Nigeria, and three in Canada, Mauritius, and Poland. The operation also resulted in the seizure of nearly $2.4 million and the disruption and recovery of approximately $14 million in fraudulent wire transfers.
A number of cases charged in this operation involved international criminal organizations that defrauded small- to large-sized businesses, while others involved individual victims who transferred high-dollar amounts or sensitive records in the course of business. The devastating impacts these cases have on victims and victim companies affect not only the individual business but also the global economy. Since the Internet Crime Complaint Center (IC3) began formally keeping track of BEC [business e-mail compromise] and its variant, e-mail account compromise (EAC), there has been a loss of over $3.7 billion reported to the IC3.
BEC, also known as cyber-enabled financial fraud, is a sophisticated scam that often targets employees with access to company finances and trick them—using a variety of methods like social engineering and computer intrusions—into making wire transfers to bank accounts thought to belong to trusted partners but instead belong to accounts controlled by the criminals themselves. And these same criminal organizations that perpetrate BEC schemes also exploit individual victims—often real estate purchasers, the elderly, and others—by convincing them to make wire transfers to bank accounts controlled by the criminals.
Foreign citizens perpetrate many of these schemes, which originated in Nigeria but have spread throughout the world.
Law firms were among the most frequent targets of the scammers, who posed as clients to access funds held in the law firms' trust accounts. For more on the industry, read "It's Time to Stop Laughing at Nigerian Scammers -- Because They're Stealing Billions of Dollars," from the Washington Post.
June 14, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, International, Property Management | Permalink | Comments (0)
Friday, June 8, 2018
John Oliver, the star of Last Week Tonight focused on guardianship on the June 3, 2018 show. The segment focused quite a bit on some of the abuses that have been reported recently in the press. But, to Mr. Oliver's credit, he notes that sometimes, despite a person's efforts, a guardianship is needed. He provides suggestions for improving the system and for individuals on planning to minimize the chances of a guardianship going wrong. There is some good info in the segment, and he makes several important points, but in a comedic and satirical format.
The link to the segment is here. Be sure to watch through to the end, to see cameos from several celebrities offering advice on planning for incapacity (although they do get off track quite a bit) including health care powers of attorney and DPOAs. And who wouldn't want Tom Hanks to be their health care agent! (You have to watch the last bit to get that reference). Caveat: there is some "salty" language used throughout the segment.
June 8, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations, Television | Permalink | Comments (1)
Thursday, June 7, 2018
BBB found these frauds concentrate disproportionately on older people, who suffer the largest losses by far. A vast worldwide industry of sweepstakes mailings specifically targets older victims. Major law enforcement efforts are focused on the millions of deceptive mailings that have flooded the mailboxes of seniors across the country. In addition to money loss, victims often are emotionally devastated when they realize they have been defrauded. Some have even resorted to committing suicide.
In particular, the report offers data for the past 3 years by age group and shows the number of complaints by age and the amount of losses (and the total is staggering). The report ponders why elders are targets, offering
While some studies suggest older consumers are somewhat less likely to be fraud victims than the general population, perhaps because they have more life experience to guide them, there is evidence suggesting they are more likely to become victims of sweepstakes fraud. Complaint data shows more than half of victims are over 60, and those over 70 years old account for more than two thirds of the losses related to this scheme.
Why is this? It is speculated that the fraudsters hope to find victims with mild cognitive impairment, dementia or Alzheimer’s disease. These people often continue sending hundreds of thousands and even millions of dollars to fraudsters. A retired college president sent tens of thousands of dollars to scammers. CNN reported that an older man suffering from Alzheimer’s sent all of his funds to scammers and then committed suicide when the prize money never came. A San Diego TV station explains how one senior victim was defrauded.
In addition, seniors may simply have more money and may have been at the same address, with the same phone number, for a longer time and therefore may be easier to locate.
The 16 page report offers insight onto scams from Jamaica, Costa Rica and social media, provides profile stories of some victims and perpetrators, and offers suggestions and recommendations with contact info for agencies that handle cases of scams and frauds.
There is a lot of information packed into this 16 page report. Check it out!
Monday, June 4, 2018
There have been sad stories covering the legal proceedings in New York of one couple's recent attempts to evict their 30 year old son from their home. We occasionally had similar matters in the Elder Protection Clinic at Dickinson Law. We even had a name for the situation -- "ghost children," as typically the adult child was living in one room, rarely interacting with the rest of the family and often entering or leaving when the parents were away to avoid communications. The older parents would implore us to "do something," but often they did not want to file formal eviction proceedings. Letters requesting departure and offering mediation sometimes worked, but more often did not.
I suspect that if you had been following the proceedings of the New York parents, you were worried about the outcome, as the son seemed to be digging in and pulling out all the stops to resist eviction. I know I worried when I first saw a new headline, reporting that a man had killed his elderly parents and then himself, rather than quietly depart. Tragically, that was a "second" case, in Illinois, not New York.
No easy answers here. The problems are a long time in the making.
Friday, June 1, 2018
Happy June 1. Celebrate by registering now for a free webinar for World Elder Abuse Awareness Day! From the DOJ Elder Justice Initiative, this 4 p.m. webinar will include:
A presenter from the Social Security Administration will share the latest on representative payees; an EJI representative will talk about the Elder Abuse Prevention and Prosecution Act and new resources being developed to better respond to elder abuse; an expert from the Administration for Community Living will describe their guardianship grant programs and the importance of data collection for policy and programmatic enhancement; and the Deputy Director of the National Center on Elder Abuse will present on some of the latest trends and resources that will help you to better respond to elder abuse.
Expert presenters include:
Lydia Chevere, Public Affairs Specialist, Social Security Administration
Aiesha Gurley, Aging Specialist, Office of Elder Justice and Adult Protective Services, U.S. Department of Health and Human Services
Susan C. Lynch, Senior Counsel for Elder Justice, U.S. Department of Justice
Julie Schoen, Deputy Director, National Center on Elder Abuse
To register for this webinar, click here
Tuesday, May 29, 2018
A book I co-authored on The Law of Financial Abuse and Exploitation was inspired, sadly, by several cases we had in our Elder Protection Clinic at Dickinson Law in Carlisle Pennsylvania.
In one case, at first the relationship between great niece and great aunt had seemed to friends and neighbors to be loving and protective. It wasn't until the elder's care needs increased, and it turned out there was no money to pay for care by professionals, that the truth was uncovered. The aunt's money, close to a million over three years, was gone.
With the benefit of hindsight, you could see how the exploitation began -- with the younger woman asking for permission to use the elder's accounts for a few improvements and upgrades around the house. Then she stopped asking for permission. Eventually her spending was for fur coats, jewelry and a luxury car (actually, two). Her aunt no longer could see to review her accounts and there weren't any other relatives to ask questions. The niece probably didn't count on her aunt living past 100 -- or testifying against her at the criminal trial about the unauthorized spending, when she was 101. The younger woman tried to justify her behavior, testifying at trial that "she wanted me to have the money. She was going to leave it to me in her will."
Several friends, including Karen Miller, in Florida, sent me copies of another tragic tale, this time from Brooklyn via the New York Times. I suspect, that in this account of a relationship between an older widow and a local waitress, the younger woman probably told herself her "friend"wanted her to have the money. She too will be thinking about this in jail. Read She Found Comfort in a Brooklyn Diner, Then Lost Everything.
May 29, 2018 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, May 24, 2018
The "Senior Safe Act," part of a federal banking reform law that will modify Dodd-Frank, has been passed by both houses of Congress with bi-partisan support. Note the sometimes clever spelling for "Safe" as "$afe," used by proponents. From a McKnight's Senior Living report on May 23, 2018:
A bipartisan bill intended to help protect older adults from financial exploitation and fraud is on its way to the president's desk to be signed into law.
The Senior $afe Act, authored by U.S. Sens. Susan Collins (R-ME) and Claire McCaskill (D-MO), passed in the House of Representatives on Tuesday as part of a bipartisan banking reform package after previously being passed by the Senate in March. President Trump tweeted on Wednesday that he plans to sign the legislation into law.
Collins and McCaskill had introduced the Senior $afe Act in 2017 when they were chairman and ranking member, respectively, of the Senate Special Committee on Aging. Collins still leads the committee, and McCaskill remains a member.
The legislation protects banks, credit unions, investment advisers, broker-dealers, insurance companies and insurance agencies from being sued for reporting suspected exploitation or fraud as long as they have trained their employees about how to identify the warning signs of common scams and make reports in good faith to the proper authorities.
“The Senior $afe Act, based on Maine's innovative program, will empower and encourage our financial service representatives to identify warning signs of common scams and help prevent seniors from becoming victims,” Collins said in a statement.
I'll report more once I have a close look at the language, as enacted.
May 24, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Statistics | Permalink | Comments (0)
Wednesday, May 16, 2018
Yesterday, May 15, 2018, was designated by the U.S. Senate as "National Senior Fraud Awareness Day." The reason for the day, according to the Congressional Record is "To Raise Awareness About the Increasing Number of Fraudulent Schemes Targeted At Older People of The United States, To Encourage The Implementation of Policies to Prevent These Scams From Happening, and to Improve Protections From These Scams For Seniors."
Senator Collins for herself and 4 other Senators, and introduced the resolution, S. Res. 506.
Here it is in its entirety:
Whereas, in 2017, there were more than 47,800,000 individuals age 65 or older in the United States (referred to in this preamble as ``seniors''), and seniors accounted for 14.9 percent of the total population of the United States;
Whereas senior fraud is a growing concern as millions of older people of the United States are targeted by scams each year, including the Internal Revenue Service impersonation scams, sweepstakes and lottery scams, grandparent scams, computer tech support scams, romance scams, work-at-home scams, charity scams, home improvement scams, fraudulent investment schemes, and identity theft; Whereas other types of fraud perpetrated against seniors include health care fraud, health insurance fraud, counterfeit prescription drug fraud, funeral and cemetery fraud, ``anti-aging'' product fraud, telemarketing fraud, and internet fraud;
Whereas the Government Accountability Office has estimated that seniors lose a staggering $2,900,000,000 each year to an ever-growing array of financial exploitation schemes and scams;
Whereas, since 2013, the fraud hotline of the Special Committee on Aging of the Senate has received more than 7,200 complaints reporting possible scams from individuals in all 50 States, the District of Columbia, and the Commonwealth of Puerto Rico;
Whereas the ease with which criminals contact seniors through the internet and telephone increases as more creative schemes emerge;
Whereas, according to the Consumer Sentinel Network Data Book 2017, released by the Federal Trade Commission, people age 60 years and older were defrauded of $249,000,000 in 2017, with the median loss to defrauded victims age 80 and older averaging $1,092 per person, more than double the average amount lost by those victims between the ages 50 and 59 years old;
Whereas senior fraud is underreported by victims due to embarrassment and lack of information about where to report fraud; and
Whereas May 15, 2018, is an appropriate day to establish as ``National Senior Fraud Awareness Day'': Now, therefore, be it
Resolved, That the Senate--
(1) supports the designation of May 15, 2018, as ``National Senior Fraud Awareness Day'';
(2) recognizes ``National Senior Fraud Awareness Day'' as an opportunity to raise awareness about the barrage of scams that individuals age 65 or older in the United States (referred to in this resolving clause as ``seniors'') face in person, by mail, on the phone, and online;
(3) recognizes that law enforcement, consumer protection groups, area agencies on aging, and financial institutions all play vital roles in preventing scams targeting seniors and educating seniors about those scams;
(4) encourages implementation of policies to prevent these scams and to improve measures to protect seniors from scams targeting seniors; and
(5) honors the commitment and dedication of the individuals and organizations who work tirelessly to fight against scams targeting seniors.
May 16, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Other, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, May 15, 2018
Pennsylvania has several interesting bills pending that would make significant changes to the laws governing court-appointed guardians for incapacitated adults, and at least one of these could move forward this legislative session. I've learned to expect late night action from the Pennsylvania legislature once it reconvenes in late May and before it adjourns in late June or early July. The pending legislation includes:
- Senate Bill 884 (Printer's No. 1147), with Senator Greenleaf as the lead sponsor, offered as a comprehensive reform package for adult guardianship laws, relying in large part on model legislation, and drafted before the most recent high profile news stories and editorials that involve allegations of improper appointment of a particular fee-paid guardian in a number of guardianships for incapacitated adults on the eastern side of the Commonwealth. On April 16, 2018 this bill was referred to the Senate Appropriations Committee.
I've seen recent drafts of proposed amendments to SB 884 that would require alleged incapacitated persons to be represented by a lawyer during the guardianship proceeding, require criminal background checks through the State Police (without creating automatic disqualifications if there is a history of convictions), and would also mandate "certification" for "professional guardians." Professional guardians are defined to include individuals or entities that are appointed to serve 3 or more incapacitated persons. The responsibility for certification of the professional guardians would be assigned to the Pennsylvania Department of Human Services, although the proposed language would appear to permit the department to accept certification through an outside program such as that offered by the Center for Guardianship Certifications.
- House Bill 2247 (Printer's No. 3296), with Representative Gillen as the lead sponsor, and submitted in April 2018 following the high profile articles, would mandate criminal background checks for all current or prospective guardians and provides that courts "shall disqualify a guardian or prospective guardian convicted of an offense classified as a felony under the laws of this Commonwealth or a substantially similar offense under the laws of another jurisdiction."
While the proposed amendment to S.B. 884 would require criminal background checks for potential guardians, unlike HB 2247, it stops short of banning appointment of individuals who have any particular criminal history. No doubt this decision reflects a 2003 ruling by the Pennsylvania Supreme Court in Nixon v. Commonwealth. In that case, a per se ban on employment of individuals as long-term care workers if they were convicted of certain crimes was deemed unconstitutional. Senate Bill 884, even if amended, would give greater discretion to the courts to consider the individual history and the nature of the offense than would HB 2247.
May 15, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Wednesday, April 11, 2018
Mark Your Calendars: Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation
Mark your calendars for April 18, 2018 at 2 p.m. edt for a free webinar from the National Center on Law & Elder Rights, Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation. Here is the description that I received in the email announcing the webinar:
In 2016, Medicare began reimbursing physicians for counseling beneficiaries about advance-care planning. At around the same time, Health Affairs released a study finding that only one-third of older adults have completed any health care planning documents. For attorneys counseling older adults, completing advance planning documents is just one part of care planning. Drafting these documents in a way that reduces the risk of abuse and exploitation is a critical component of providing good counsel.
This webcast will discuss ways to work with clients to select lower-risk agents, tools to document and communicate health care values, and tips for drafting documents to reduce the risk of exploitation.
To register, click here.
April 11, 2018 in Advance Directives/End-of-Life, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, April 8, 2018
Here's an unusual case to start off a new week. In Laborer's Pension Fund v. Miscevic, the 7th Circuit faced interesting statutory interpretation questions about whether "survivor" benefits available under a murdered's man's pension must be paid to the very woman who killed him, his "surviving" wife.
The first question focused on ERISA's rules, asking whether the federal law (which does not contain "slayer" provisions) preempted any disqualifying effect of state slayer laws. Ultimately, considering the issue as a matter of first impression for federal appellate courts, the 7th Circuit rejected the ERISA preemption argument.
But that left the question of the effect of the Illinois law in light of additional, unique facts. The wife argued her state criminal court verdict of "not guilty by reason of insanity" barred the disqualifying effect of the Illinois slayer statute. The Court analyzed similar language of the Illinois slayer statute and the Illinois insanity law and concluded:
Put simply, an individual may not appreciate the criminality of her conduct, but still have "intentionally" and "unjustifiably" cased a death. Indeed, in this case, the judge at [the wife's] criminal trial made an explicit finding that [she] intended to murder [her husband] "without justification," despite concluding [she] was not guilty by reason of insanity."
Noting a split among state courts in analyzing the effect of "not guilty by reason of insanity" on entitlement to inheritance under other states' slayer laws, with Mississippi and New Jersey permitting recovery by a party deemed insane at the time of the murderous act, the 7th Circuit concluded that Illinois would not follow that path. The Court concluded that the Illinois slayer statute barred this wife from recovering her husband's pension benefits.
This case is interesting for reasons other than interpretation of the federal and state laws. The case was filed as an interpleader by the Pension Fund, as the Fund had received conflicting claims for survivor benefits from the wife and the couple's 11 year old daughter. The minor-aged daughter will now take the survivor benefits, but, the "minor child benefit" for the plan lasts only until the minor is 21. It is perhaps an unfortunate side effect of an already sad case that without the murderous facts, the wife would have been a survivor until her death, but the innocent (and, perhaps, needy) daughter's survivor benefits will terminate after 10 years. Should there be the option to treat any benefits payable to someone deemed "not guilty of murder by reason of insanity" as being subject to a constructive trust in favor of the next of kin?
My thanks to always eagle-eyed attorney Thomas Murphy in Phoenix, Arizona for sending the report on the 7th Circuit case, decided January 29, 2018.
Monday, April 2, 2018
There have been innumerable articles about the opioid crisis and how to crack down on abuses. Medicare has joined the fight, announcing a limit on coverage of opioids. Medicare Is Cracking Down
on Opioids. Doctors Fear Pain Patients Will Suffer explains that Medicare concluded that it "would now refuse to pay for long-term, high-dose prescriptions; a rule to that effect is expected to be approved on April 2." Typically prescribing is the doctor's decision and this rule is may have wide-ranging impact, especially on those who are taking opioids appropriately. What happens to those who can't get their prescriptions refilled under Medicare as a result of this rule? One expert explained "'[t]he decision to taper opioids should be based on whether the benefits for pain and function outweigh the harm for that patient,” said ... an opioid researcher and associate professor at Albert Einstein College of Medicine. 'That takes a lot of clinical judgment. It’s individualized and nuanced. We can’t codify it with an arbitrary threshold.'"
The article explains that under this new rule Medicare's coverage would be limited to "seven days of prescriptions equivalent to 90 milligrams or more of morphine daily, except for patients with cancer or in hospice."
What is the purpose of this rule, other than a response to the opioid crisis? The article references an unnamed Medicare official "ho would speak only on background said that the limit for monthly high doses was intended not only to catch doctors who over-prescribe, but also to monitor patients who, wittingly or not, accumulate opioid prescriptions from several doctors. When the dose is flagged, the pharmacist or patient alerts the doctor." This means that the pharmacist will be a key player in this rule. The rule will have an appeals process that a doctor can pursue, but keep in mind the time it takes for an appeal, and a doctor's patient load, resulting in a time period where the patient would be without pain meds of this type.
The article ends quoting one doctor about the potential impact of the rule whose "concern is that our results could be used to justify aggressive tapering or immediate discontinuation in patients, and that could harm people — even if opioids have no benefit for their pain ... [and] [e]ven if we walk away from using opioids for back and knee pain, we can’t walk away from patients who have been treated with opioids for years or even decades now.... " The doctor added that there is looming "'a double tragedy for these people.'"
Friday, March 30, 2018
The Hawaii legislature has approved legislation to legalize Medical Aid-in-Dying, according to the New York Times. Doctor-Assisted Suicide Close to Becoming Law in Hawaii reports that the bill now goes to the Hawaii governor, who has indicated that he will sign the bill. The bill contains safeguards similar to other medical aid-in-dying statutes, including
a requirement that two health care providers confirm a patient's diagnosis, prognosis, ability to make decisions and that they voluntarily made the request. A counselor also must determine that the patient is capable and does not appear to be suffering from a lack of treatment of depression.
The patient must make two oral requests for the life-ending medication, with a 20-day waiting period between each. They also must sign a written request witnessed by two people, one of whom can't be a relative.
The measure creates criminal penalties for anyone who tampers with a request or coerces a prescription request.
Assuming the Governor signs the bill, Hawaii will be the 6th state to have such a law, joining Washington, Oregon, Vermont, Colorado and California, along with the District of Columbia. Montana, although without such a statute, has a state supreme court opinion addressing the issue.
Thursday, March 29, 2018
Penn State's Dickinson Law Hosts Pennsylvania Judges for Program on "Dementia Diagnosis and the Law"
On Thursday, March 29, 2018 Penn State's Dickinson Law hosted a continuing judicial education program for the Pennsylvania Judiciary, with live attendance in Carlisle by more than 30 judges and with even more judges around the state participating via a live stream. The program was "Dementia Diagnosis and the Law," organized into three parts:
Part 1: Medical Science and Dementia
- Welcome by Dean Gary Gildin, Dickinson Law
- Keynote Presentation: Age-Related Cognitive Decline
- Krish Sathian, M.D., Ph.D., Professor of Neurology and Chair of the Department of Neurology for Penn State College of Medicine and Penn State Health Milton S. Hershey Medical Center
- Medical Perspectives – Responding to Legal and Ethical Quandaries of a Diagnosis: Two Brief Vignettes
- Associate Professor Claire Flaherty, Ph.D., Penn State College of Medicine, Department of Neurology
Panel Discussion and Audience Q & A
Part 2: Legal Implications of a Diagnosis of Dementia
- Keynote Presentation: Clinical, Legal and Judicial Judgments of Capacity in Persons with Dementia
- Daniel C. Marson, Ph.D., JD., Professor Emeritus, Department of Neurology, School of Medicine, University of Alabama at Birmingham
- Why “Guardianship Oversight” is a Hot National (and State) Topic
- Professor Katherine C. Pearson, Dickinson Law, Pennsylvania State University
Panel Discussion and Audience Q & A
Part 3: Adjudication Exercises, facilitated by Professor Tiffany Jeffers, Dickinson Law, with Dickinson Law students in role plays on issues about capacity to contract, limited guardians, the roles of guardians ad litem and the potential for attorneys or judges to become affected by a neurocognitive disorder.
- Panel Discussion and Audience Q & A
Panel Members included:
- The Honorable Lois Murphy, Judge, Montgomery County Court of Common Pleas
- The Honorable Paula Ott, Judge Superior Court of Pennsylvania
- Sally L. Schoffstall, Schoffstall Elder Law LLC, Orefield, PA.
- Laurel S. Terry, H. Laddie Montague Jr. Chair in Law & Professor of Law, Penn State’s Dickinson Law
As the law school's organizer for the event, I know I learned a lot from this dynamic group of seasoned experts who spoke on the challenging legal, medical, and judicial issues that can arise from cognitive impairments associated with aging. The judges in our audiences were fully engaged, offering great comments, questions and experiences.
My special thanks to each and every one of the speakers, facilitators, judges, lawyers and students who made the program so informative. It was fun to work with the Administrative Office of the Pennsylvania Courts on this project and we look forward to additional opportunities to collaborate in the future. Once I catch up a little on my day job (and maybe on some missed sleep), I'll post again with some additional reactions and thoughts from this program.
March 29, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Science | Permalink | Comments (1)