Monday, March 3, 2014
While working in Ireland in 2010, I attended a conferencen in Dublin where the theme was "turning silver into gold." I was impressed when I arrived, as the conference was sold out and it was standing room only. Speakers came from a wide range of academic and business fields, and the day ended with roundtable brainstorming sessions about business opportunities in serving the needs of seniors. There was a lot of creative energy in the room.
At the same time, I recognized the possibility that the economic crisis that was in full sail at the time, deeply affecting Ireland, could be triggering both creativity and desperation. Free enterprise often seems to walk the fine line between capitalizing on need and exploiting it. Seniors may be particularly vulnerable as clients, if the fine line is breached.
I was reminded of the potential for duality as I read a very interesting article in the New York Times, by Jill Caryl Weiner, "Of Crime and Punishment, Redemption and Aerobics." Here are two paragraphs from the thoughtful exploration of a senior fitness business plan, that started small with aerobics classes in senior centers:
"Mr. Mickens dreams big. Right now, as president and C.E.O. of the Tommy Experience, a fitness company focused on older adults, he says he wants to turn his company into an international brand, as big as Bally Total Fitness and Equinox. He envisions sports merchandisers like Nike and Under Armour sponsoring his company and providing comfortable workout clothes for the 60-and-above set, 'to sponsor their grandmothers, aunts and grandfathers like they would sponsor kids or a team.'
While his stated mission is to help older people transform themselves, it is also about his own transformation — and redemption. In 1989, Mr. Mickens, then 25, was convicted of conspiracy to distribute cocaine, money laundering and tax evasion. He was fined $1 million and sentenced to 35 years in federal prison."
It is good to read about redemption and senior services coming together in healthy ways, with the hope that everyone also "exercises" healthy realisim about the business model.
Thursday, February 27, 2014
Hat tip to Penn State Law Student Kevin Schock for sending this news!
Actor Seth Rogen, organizer of Hilarity for Charity, uses humor to call attention to the need for better funding to fight Alzheimer's, and on Wednesday brought his humor to the U.S. Senate. Here he is in testimony before the Senate Subcommittee on Labor, Health and Human Services, Education, and Related Agencies, describing the struggle of his own wife's family with early onset dementia.
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.
Sunday, February 23, 2014
Penn State Dickinson School of Law has frequently hosted visiting academics from Ukraine. I've had the privilege of working with very talented, engaged scholars on choice of law issues, conflicts of law, family law, and filial support questions. I've been thinking a lot about my friends as I follow the news about violence and change in Kiev during the struggles over the future for the country. We did not always agree on the law, but our debates were always spirited. I hope they are safe. Knowing how committed the lawyers I've met have been to modernization and the rule of law, I can only imagine how painful this period must be.
In 2012, I was invited to publish an article, "Filial Support Laws in the United State and Ukraine," for a Ukrainian journal on family law. I later expanded my analysis for the University of Illinois' Elder Law Journal, as an opportunity to compare domestic and international trends in use of such laws to compel adult children to pay for costs to care for aging parents. In this effort, I was guided by several people, including my Penn State colleague and noted Russian law scholar, Professor William Butler, in going beyond literal translations of Ukraine statutes and to examine case reports that shed light on the potential strengths or weaknesses of different systems of enforcement. As I wrote in my second article, the Ukraine cases "demonstrate the impact of poverty -- and the importance of even a few 'dollars' extra per month - for the elder parent" for any country struggling to create a viable economic system, including former Soviet block countries.
My thoughts go out to the families, including their elders, who face uncertainty during these challenging times and who deserve a brighter future.
Tuesday, February 18, 2014
The National Council on Aging identifies five ways that Congress -- if it could get its act together -- can help seniors in 2014:
- Restore funding and modernize aging services, beginning with revitalization of the Older Americans Act, once the central legislation for a national approach to basic safeguards;
- Protect low-income Medicare beneficiaries, by securing the viability of the Medicare Qualified Individual (QI) program, aimed at helping low income individuals (those with incomes between $13,700 and $15,300) take part in Medicare Part B, key to insurance coverage for doctor's visits.
- Renew the Farm Bill, including the Supplemental Nutritional Assistance Program (SNAP) to help needy seniors obtain healthy food, a program that in the past has been important to as many as 4 million older adults, as well as younger persons facing food insecurity.
- Introduce long-term care legislation -- that focuses on the very real needs for daily assistance (long term "services and supports") , beyond "mere" health care.
- Pass immigration reform -- necessary to provide the work force to cope with the predicted needs for care and assistance to aging boomers.
Monday, February 17, 2014
Is there anyone who writes with more rhythm and verve than Roger Angell? Hard to believe, but he's now well on his way to 94 candles. "This Old Man," his Tour de Force essay on the ultimate contest, the sport of aging, appears in this week's issue of The New Yorker.
Surprisingly, the recommendation for this good read comes via Tour de France's own Lance Amstrong. (Sorry, France, you broke him; he's still yours.) Feeling a bit creaky, Lance? You aren't even half way there yet!
Thursday, February 6, 2014
CVS Caremark is drawing a lot of attention with the recent announcement of its decision to stop selling tobacco products in its drug store operations. Many, including the NYT and McKnights, are highlighting this decision as a pro-health measure, and certainly that should be true. News coverage of CVS suggests that other drug store chains are considering whether to adopt the same policy. But, the decision also highlights CVS' role in a major consumer trend; consumers are seeking what might be called retail health care at the corner drug store. This trend is arguably a move away from, or at least a major supplement to, a more traditional setting where a primary care physician's office is the access point for health care assessments. CVS' decision is part of its enhanced image as "health care provider."
I've been fascinated to see the popularity, especially among my parents' generation (in their 80s!), of using the "clinic" at the drug store to get complaint-specific treatment. Ease of access is certainly a major part of the appeal. I suspect that another factor is the decision of many trusted family physicians to retire. Indeed, my parents have now outlived the working lives of several sets of doctors.
At the same time, I worry about what might be missed when a customer uses the local drugstore "clinic" for a specific complaint -- and when those visits start to multiply. The pharmacy clinic does not have the decades of records that can help to explain a patient's symptoms and progress. Are there missed opportunities for whole person health care? And is the drug store clinic potentially "eager" to prescribe -- and sell -- drugs?
Tuesday, January 28, 2014
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.
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
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.'"
Wednesday, January 22, 2014
Recently, a long-time friend, a successful business person, sent me a link to an Inc. article about an interesting course at the University of Chicago called "Entrepreneurial Selling." The course was taught in the Business School and the Inc. article included the course syllabus. My friend asked "should lawyers -- and by extension law students -- be taking this kind of course?" Reading the first line of the article made me shudder just a little, because it made the distinction between learning "how to sell," versus mere "marketing," especially for small businesses. But, the more I read, the more I was intrigued. My friend (a non-lawyer) argued that selling is the art of effective communication and lawyers are or should be all about effective communication.
That got me thinking, and I realized that some of the most effective "sellers" of law are Elder Law attorneys, who regularly engage with the public in social and business contexts, always with their eyes open for new relationships and new clients. As examples, I've witnessed (and participated in) an interesting variety of educational seminars for the public or other professionals that were sponsored by Elder Law firms or Elder Law attorneys.
Elder Law is still a relatively young (and evolving) field. Most members of the public have little understanding of what might be covered by the term. Indeed, two summers ago, a group of law students and I were sharply reminded of that fact while doing a state-wide research project with focus groups of older adults and their families, asking them to talk about access to trustworthy legal advice and information. We frequently encountered people who thought of Elder Law as "writing wills for old people," or similar amusing, if worrisome, definitions. Thus, "selling" the field is perhaps especially important and necessary.
But, of course, that leads to more questions. Is there an ethical model for "selling" a particular field of law, particularly a field that may not be well understood by the potential client base? Is so, what are the elements of that model?
What is necessary, for example, to avoid the Consumer Financial Protection Bureau's concerns about manipulation of potential clients, as addressed in an earlier post on this blog about investment products marketed to seniors? I'm tempted to say that one possible element of an ethical model would be to de-couple the educational programming from the client-retention meetings, but perhaps I'm being very naive, trapped in my ivory tower.
Silvia Hodges, who runs a blog subtitled The Legal Firm as a Business, recently published "I Didn't Go to Law School to Become a Salesperson -- The Development of Marketing in Law Firms." in the Georgetown Journal of Legal Ethics. She argues that "lawyers [often] mature in their professions without marketing training and therefore are ... ill-prepared to handle both the business and the professional part of their profession simultaneously." She refers to the problem as "market disorientation," where lawyers "consistently underrate the importance of clients' selection clues and criteria." She concludes that law firms "need to aspire to have marketing embedded in their firm culture, independent of whether the firm is a professional partnership or a managed professional business."
Perhaps the first step to that culture change should occur in law school, and thus "selling law" should also be addressed specifically in Elder Law classes.
Friday, January 10, 2014
The earliest signs of dementia are often subtle. It can be tempting and easy to brush them off as merely the signs of fatigue or being overwhelmed. Ironically, at the other end of the spectrum, advanced dementia, it may also be easy to jump to conclusions, believing one diagnosis fits all forms of dementia. The modern assumption is probably most often Alzheimer's, while in earlier decades the label might have been simply "senility."
I often ask a medical or gerontology professional with expertise in the various forms of dementia, including Lewy-Body Disease, Frontotemporal Dementia (FTD), Parkinson's related dementia, vascular dementia, as well as Alzheimer's, to speak to my elder law classes. The lectures are fascinating (okay, also a little frightening). But often, near the near the end of a class discussion, a student will ask, "if there is no cure for dementia, does diagnosis of the source really matter?"
A family's search for answers suggests there are may be very good reasons to pursue a definitive diagnosis, even if the ultimate answer is possible only after the death of a loved one impacted by disease. The Ruhrig Family in central Pennsylvania was perplexed by the symptoms and rapid progress of confusion for the patriarch of their family. Sixty-six year old Weston Ruhrig passed away less than a year after the family first began seeing signs of confusion:
"The 6-2, 210-pounder was up by 7 a.m. daily ... seemed always on the move. In June , he conducted a charity auction for United Cerebral Palsy of Central Pennsylvania, just as he had since 1987. He seemed normal.
But his family began noticing odd behavior. Ruhrig became withdrawn. He continually locked doors, sometimes locking out his wife after she had gone to the yard or garage during daylight. Ruhrig was known for harping on people to turn off lights to save electricity. Now he switched on lights for no reason and left the room.
By September , his family had persuaded him to see his family doctor. The doctor found no medical problems but referred him to a neurologist. Ruhrig felt nothing was wrong. In November, the neurologist gave Ruhrig cognitive tests. Ruhrig named the president and recalled facts including his wife’s birth date. But he couldn’t correctly state her age or calculate it. Still, he joked during the visit."
As carefully detailed by Patriot News writer David Wenner, eventually doctors suggested the problem was Alzheimer's. But the family, contrasting their father's symptoms with those of others they knew with more traditional presentations of Alzheimer's related dementia, persisted in seeking a more precise diagnosis. An MRI was viewed as normal. Another test was a spinal tap. Unfortunately, Mr. Ruhrig died suddenly in December 2013, after a fall that led to a rapid decline.
The diagnosis occurred after his death, based on the results of the spinal fluid analysis: Creutzfeldt-Jakob Disease, a very rare variation of the family of diseases associated with "Mad Cow" and "chronic wasting" in deer, but a form that is not considered to be caused by eating or handling contaminated meat. Deterioration associated with the condition is rapid, usually leading to death within a year, and the cause of the disease is currently unknown, and there are no cures.
But the courage of the family in pursuing and talking about the diagnosis could help others, as better understanding of the various forms and causes of dementia should help the larger community of physicians, epidemiologists and other experts chart the frontiers of dementia. Heredity, life-style, diet, viruses, environmental impacts -- with the help of families, all of these factors and others might better be understood in the search for causes and solutions for the different forms of dementia.
For more, read "Hampton Township Man Dies of Mysterious Disease Sometimes Associated with Mad Cow and Chronic Wasting." Thanks to my colleague, Professor Laurel Terry, for pointing me to this interesting local article.
Sunday, December 29, 2013
Washington Post reporters Peter Whoriskey and Dan Keating use more than ten years of data from California to provide a detailed portrait of hospice, with national implications, concluding that providers are pursuing "healthier" patients to increase their margin. While acknowledging the importance of Medicare-supported hospice for individuals legitimately diagnosed with less than six months to live, the Washington Post article uses survival rates to suggest manipulation of the diagnosis for financial gain:
"[T]he survival rates at AseraCare are emblematic of a problem facing Medicare, which has created a financial incentive for hospice companies to find patients well before death. Medicare pays a hospice about $150 a day per patient for routine care, regardless of whether the company sends a nurse or any other worker out on that day. That means healthier patients, who generally need less help and live longer, yield more profits.
The trend toward longer stays on hospice care may be costing Medicare billions of dollars a year. In 2011, nearly 60 percent of Medicare’s hospice expenditure of $13.8 billion went toward patients who stay on hospice care longer than six months, MedPAC, the Medicare watchdog group created by Congress, has reported."
For the full Washington Post story, itemizing factors contributing to misuse of hospice, see "Hospice Firms Drain Millions from Medicare."
Tuesday, December 17, 2013
Via the Telegraph:
Tens of thousands of pharmacists, bus drivers and bank staff are being trained to recognise the signs of dementia as part of a “front-line force” against the disease. Managers of some of the biggest firms have pledged to educate staff to recognise the effects of dementia. Boots, Lloyds bank and First Group have all committed to do as much as possible to help dementia sufferers after David Cameron promised to lead a national “fightback” against the illness. Jeremy Hunt, the Heath Secretary, said “every section of society” must “step up” to help tackle the illness, which affects 800,000 people in the country. “Britain’s biggest companies will build up a front-line force of thousands of people able to spot the signs of dementia and understand the needs of sufferers, helping people with the disease to live a normal life for longer,” Mr Hunt told The Daily Telegraph. The Prime Minister said this week that a cure for dementia could be found within 12 years as he announced funding for research into the disease would be doubled.
Monday, December 2, 2013
At the heart of comparative research is the opportunity to rethink your own system. I was reminded of this point last week when meeting Claire Keatinge, the Commissioner for Older People in Northern Ireland (COPNI). Commissioner Keatinge is -- in a word -- dynamic, and it is impossible not to be impressed with her dedication to meeting the needs of older persons in her country. She is a leader, both actually and symbolically, for a hard-working team tackling a number of issues in ageing policy.
It is clear to me that "independence" is at the core of the role for the COPNI. What do I mean by independence? The COPNI is funded with public dollars, but the job includes making an independent evaluation of the needs and interests of the demographic, and then reporting and advocating for appropriate response by the government or other sectors. By comparison, I wonder whether state officers or offices charged with policy and laws in the U.S.are more likely to be serving a governmental agenda, and trying to sell that agenda to voters. This strikes me as a potentially important, if subtle, difference in systems.
A small example of the importance of independence: One of the COPNI's several goals is to identify and improve "uptake" of benefits available to older persons in the country. In Northern Ireland, and elsewhere in the U.K., there are official statistics on the dollars (whoops, I mean pounds) left on the table by individuals who fail to seek available public benefits or services. In N.I., there is a known gap. By comparison, I would be surprised to learn that we keep similar statistics on either the state or federal level in the U.S., much less have a policy of trying to reduce any gap.
Claire Keatinge also stressed that an individual assessment of need for health care, social care and security, should be exactly that, and not simply an assessment of what services are available. Helping individuals or their family members access services in the public, private and voluntary sectors is part of the COPNI plan of action, but, it strikes me that the emphasis on evidence-based policies may result in development of new services or better funding for existing programs.
Tuesday, November 26, 2013
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.
From WBUR public radio in Boston Massachusetts, a story and podcast on "at-home funerals."
For a number of years I have invited an attorney with expertise in alternative funerals to speak to my classes. In fact, that is how I first learned that Costco carries urns and caskets (with a choice of standard or expedited shipping -- which strikes me as a trick question). As outlined by WBUR in the article, there is a surprising amount of freedom, if that is the right word, in the law of many states for families to choose informal funerals and burials.
Hat tip to Ann Murphy at Gonzaga Law for sharing this link. Our readers definitely are the key in helping to make this a "full service" blog!
Friday, November 22, 2013
A fascinating article in The Gerontologist analyzes Naturally Occurring Retirement Communities (NORCs) and a similar community-based model for aging in place, known as the Village. Frankly, it was only recently that I realized these labels may be used for developments with different identities.
Researchers in social work, welfare and public health programs at Rutgers, Berkeley, Michigan, and Maryland surveyed program leaders representing 69 Villages and 62 NORCS in early 2012, gathering data on services, activities, beneficiaries and funding sources.
Their analysis, presented in "A Tale of Two Community Initiatives for Promoting Aging in Place: Similarities and Differences in the National Implementation of NORC Programs and Villages," suggests that while both programs "aim to promote aging in place by offering a diverse range of supports and services to older adults within a locally defined geographic area," the means by which they achieve their aims differ. For example, "NORC programs reported offering more traditional health and social services, had more paid staff, and relied more on government funding than Villages."
The article also identified topics for further study, including the potential for longitudinal studies. Regional differences may also exist. "For example, NORC programs in New York likely differ in some ways from NORC programs nationally, given different organizations overseeing their development, . . . as well as distinct public policies defining the programs and eligibility criteria."
As a bit of history, Beacon Hill Village in Boston was begun in 2001 by a group of seniors who wanted to remain at home as long as possible in their neighborhood. An early model for NORCs is widely attributed to a co-op in New York City, begun in 1986 with support from private philanthropy and local government funding.
Thursday, November 21, 2013
Somehow I had missed this particular incarnation of predatory lending. The National Consumer Law Center (NCLC) recently circulated a consumer impact statement on pension-based loan scams. Often advertised as "cash advances," in reality the individual is agreeing to assign future pension payments to the lender, with repayment terms that include an outrageously high interest rate. In 2011, NCLC and attorneys with the National Association of Consumer Advocacy were successful in a class action suit in state court in California, in which they challenged loans requiring "assignments" of military pay or pensions as violating federal law. The court ordered restitution to the class members.
The New York Times ran a 2013 feature on "Loans Borrowed Against Pensions Squeeze Retirees," by Jessica Silver-Greenberg, part of a series on "A Vulnerable Age," that examined financial traps that can face older adults, especially during a tight economy. A sidebar to the article detailed an example of a loan to a disabled military veteran for $10,000, with a $353 monthly payment for 60 months, leading to total costs over the life of the loan of $21,180, representing an interest rate of 36.4%.
Wednesday, November 13, 2013
(Reuters) - Wearing her favourite black dress, 53-year-old Liu Fenqin sat nervously in a corner at an official match-making event in Shanghai, hoping to find a husband after her first marriage ended in divorce more than 10 years earlier. With China's divorce rate rising, Liu was one of thousands of middle-aged and senior lonely hearts who took part in the annual event sponsored by the Shanghai government after the upper age limit was raised from 45 to 60 this year. The event, which drew 30,000 people last year, attracted an estimated 40,000 this year after organisers lifted the age limit to satisfy demand from the growing number of divorcees, said Xu Tianli, vice chairman of the Shanghai Matchmaking Agency Management Association.
With some people there in their 60s and even 70s, the age limit was not absolute. Divorce rates in China have climbed for seven years in a row. In 2012, the year-on-year rise in divorces outpaced that of marriages for the first time, according to official data. The Chinese city with the highest divorce rate is Beijing, at 39 percent, according to local media. The issue has not escaped the notice of China's government, which is concerned that broken homes will erode social stability. "It's likely that children from divorced families will become social outcasts and vagrants. So it does have a negative impact on society." To mend ailing marriages and encourage senior singles to date, China has introduced a range of measures.
Wednesday, October 23, 2013
Powers of Attorney (POAs) are a key tool in estate planning and Medicaid planning. A thoughtfully drafted POA can avoid the need for a guardianship, for example, and thus avoid delays, embarrassment and greater expense for a principal who later becomes incapacitated.
Unfortunately, POAs can also be a tool for misuse by agents who can't resist the temptation to help themselves, rather than their principals. For a number of years, states have been struggling to balance utility against risk.
In Pennsylvania, for example, prior to 1999, statutory law governing POAs permitted principals to grant agents the authority to make gifts. Civil case law interpreted such gift-giving authority, unless expressly limited, as permitting agents to make "self-gifts." Even if the agent's self-gifting put the principal in serious financial jeopardy, some prosecutors declined to prosecute. Following a series of troubling reports and cases, in 1999 the Pennsylvania legislature amended state law to declare that all agents appointed under POAs were subject to specific fiduciary duties. The change also imposed a statutory presumption of limited gift authority (tied to annual federal gift tax exclusions) unless the principal expressly granted the agent "unlimited" gift authority.
Concern about misuse of powers of attorney has grown on a nationwide basis,especially after high profile cases such as that of New York heiress Brooke Astor, where her son used a POA to sell off artwork and other valuable property, while reportedly keeping his mother isolated from friends.
Even before the Brooke Astor case came to light, academics, legislators, judges and practitioners worked together in the Uniform Law Commission to propose amendments to statutory authority governing POAs, resulting in the Uniform Power of Attorney Act of 2006 (UPOAA), which superseded prior uniform law proposals. The UPOAA attempts to rebalance risk and power, or as the Commission summarizes:
"The UPOAA seeks to preserve the durable power of attorney as a low-cost, flexible, and private form of surrogate decision making while deterring use of the power of attorney as a tool for financial abuse of incapacitated individuals. It contains provisions that encourage acceptance of powers of attorney by third persons, safeguard incapacitated principals, and provide clearer guidelines for agents."
Adoption of the UPOAA has been fairly slow. As of today, only 13 states plus the U.S. Virgin Islands, have enacted the UPOAA.
In 2013, legislatures in Mississippi (H.B. 468) and Pennsylvania (S.B. 620) are considering adoption. In Pennsylvania, the need for clarification has been heightened by reaction to the Pennsylvania Supreme Court's opinion in Vine v. Commonwealth, 9 A.3d 1150 (Pa. 2010), where a POA was signed by a hospitalized principal, and used by the husband/agent to make self-benefiting changes to his wife's retirement accounts, while his wife was incapacitated.
Court practice and enforcement policies on POAs, guardianships and elder abuse are also under consideration by the Pennsylvania Elder Law Task Force (2013), chaired by Justice Debra Todd of the Pennsylvania Supreme Court.
In Pennsylvania, views on what changes to POA laws are necessary differ in small or large ways among bankers, estate attorneys, elder law attorneys and district attorneys, just to name a few of the interested parties.
The scholarship of law professors has been important to the debate over proper use of POAs, including two articles by Valparaiso Law Professor Linda Whitton, "Durable Powers of Attorney as Alternatives to Guardianship: Lessons We Have Learned" and "The New Power of Attorney Act: Balancing Protection of the Principal, the Agent and Third-Persons."
By the way, when I first drafted this post, I titled it "The Problem(s) with Powers of Attorney." Overnight, I rethought that title, because many POAs are never abused and agents frequently go above and beyond in performing uncompensated services, including financial management, for aging principals. I therefore retitled the post. What law reform movements are attempting to do is reduce the potential for abuse. Human nature being what it is, there is probably no law that can prevent abuse by a wrongly motivated agent. Who to trust with powers granted under a POA will always be an important matter for families to consider and discuss with their legal and financial advisors.
October 23, 2013 in Advance Directives/End-of-Life, Current Affairs, Estates and Trusts, Ethical Issues, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)