Monday, May 30, 2016
The Association for Gerontology in Higher Education's (AGHE) annual conference is scheduled for March 9-12, 2016 in Miami, Florida. The call for abstracts for one of the six themes for the conference closes at noon on June 1, 2016. For more information, click here.
It's Memorial Day. Perhaps you are sharing a picnic with family and friends. You might need a topic to spice up the conversation amid potato salad and barbecued hot dogs, right? How about this...
Recently I've been hearing from lawyers who are commenting on recent telephone calls or emails they've received from a West Coast TV promoter, inquiring as to whether they have clients who might be interested in appearing on a new television reality show. Or, maybe the lawyer would want to participate? Here's a description of the proposed show from one of the lawyers who was contacted by a rep of the show:
"It will feature family members disputing who will inherit heirlooms, historical artifacts, or valuable collections. The show will provide a professional mediator free of charge to help the family members resolve the dispute."
I guess I shouldn't be surprised. We've had some 20 seasons of "Judge Judy" and her brethren. I have a vague memory, going back to childhood, of an early iteration of "Divorce Court" -- with lots of shouting. While living in the U.K., I used to occasionally catch a show about searches for missing heirs and another about family confrontations with "hoarders." (And oh how sad that last one was.) So, I guess it isn't a huge jump to a show that arguably sensationalizes family fights over old family "stuff." Perhaps it is even a logical next step from Antiques Roadshow, the hugely popular, and fairly dignified, PBS program.
By coincidence, just as I had finished typing the above paragraphs, I received my own communication from a developer of the proposed show. Turns out that the show is pitched as a "bigger" concept than just estate disputes. Mark Dalbis, from Atlas Media Corporation, and who seems like a nice guy in his email, writes:
Friday, May 27, 2016
Robert A. Mead, with many years of experience as a law librarian at the University of Kansas, the University of New Mexico and the New Mexico Supreme Court, and now serving as the Deputy Chief Public Defender for New Mexico, recently offered his take on claims made by family members and third-parties under state "filial responsibility" laws. His article, "Getting Stuck with the Bill? Filial Responsibility Statutes, Long-Term Care, Medicaid, and Demographic Pressure," appears in the Elder Law Advisory published by Westlaw in May 2016 (and apparently available by subscription only). He tracks the demographics of aging in the U.S. and surveys cases from Pennsylvania, North and South Dakota. Based on research, Rob predicts:
The doubling of the number of elders in society will require a substantial increase in Medicare and Medicaid funding especially if a significant percentage of them are indigent in their last years. Without this increase, filial responsibility statutes and Medicaid estate recovery will likely be used by states to address shortfalls in Medicaid funding. . . . Even without state authorities using filial responsibility statutes to seek Medicaid reimbursement, they will continue to be raised in related contexts. When siblings spar over the medical debts incurred by their deceased statutes and the effect of these debts on the probating of estates, filial responsibility becomes a complicating factor such as in Eori, Pittas, and Linderkamp cases. More insidiously, long-term care facilities are beginning to use filial support statutes to seek reimbursement for debts without waiting for resolution of whether the elder was eligible for Medicaid, as in Randall and Pittas. In some situations it will be financially advantageous for facilities to litigate against heirs rather than to settle for lower Medicaid rates. As the case law continues to develop and the demographic crisis grows, look for these novel uses of filial responsibility statutes to continue and become mainstream. It is incumbent upon lawyers representing clients in states with such statutes to plan and draft accordingly.
It is fun for me to see that Rob Mead, a former student from my own days at the University of New Mexico School of Law, has, entirely independent of my influence, kept his own eye on law and aging policy issues.
Thursday, May 26, 2016
We all know folks who are the glass half-full type (optimist), as well as the glass half-empty type (pessimist). When one talks to those folks, how those folks interpret what they hear depends on what "glass type" they are. The Journal of the American Medical Association (JAMA) ran a story about a study, Prevalence of and Factors Related to Discordance About Prognosis Between Physicians and Surrogate Decision Makers of Critically Ill Patients. According to the abstract, "[m]isperceptions about prognosis by individuals making decisions for incapacitated critically ill patients (surrogates) are common and often attributed to poor comprehension of medical information."
The authors noted how important it is for the health care surrogate to have information in order to make a health care decision for the patient. But, according to the study,
Numerous studies over the last 3 decades indicate that surrogates of patients with advanced illness often have optimistic expectations about prognosis. This is problematic because optimistic expectations are associated with more use of invasive treatments in dying patients and delayed integration of palliative care. Clinicians cite unrealistic expectations by surrogates as one of the most important barriers to high-quality end-of-life care in seriously ill patients.(citations omitted).
The authors look at some of the reasons for this disparity in viewpoint (including the lack of medical knowledge by surrogates). Here is one example of their findings regarding the disparity of views:
Physician-surrogate discordance about prognosis occurred in 122 of 229 instances (53%; 95% CI, 46.8%-59.7%). Among the 229 surrogates participating in the study, 98 (43%) were more optimistic than physicians and 24 (10%) were more pessimistic. Sixty-five instances (28%) were related to a combination of misunderstandings by surrogates and differences in belief between the physician and surrogate about the patient’s prognosis; 38 (17%) were related to misunderstanding only; 7 (3%) were related to different beliefs; and data were missing for 12.
The authors explore the reasons for the surrogates' glass half-full view and learned that the surrogates felt that a positive attitude: "would improve the patient’s outcomes or protect themselves from emotional distress"; was justified because they knew the patient better than the doctor, including knowing if the patient were a strong person; and/or was based on their religious beliefs.
The study also explored the glass half-empty views of surrogates. The study authors concluded that "[a]mong critically ill patients receiving care in ICUs, discordant expectations about prognosis were common betwTeen patients’ physicians and surrogate decision makers and were related to both misunderstandings by surrogates about physicians’ assessments of patients’ prognoses and differences in beliefs about patients’ prognoses."
The article is available here for free
The percentage of older Americans living below the federal poverty line has decreased by two-thirds since 1966. That year, according to data from the Pew Research Center, 28.5 percent of Americans age 65 and over were poor. By 2012, that number had declined to just 9.1 percent.
But we may be at the end of that happy trendline. I think that over the next five to 10 years we will see a dramatic reversal in the economic fortunes of millions of our oldest residents. That has profound implications for governments at all levels.
Discussing how we fund retirement (the 3-legged stool), the author notes the changes in pension plans, the low amounts saved and the higher amount of debt. This is not particularly new to those of us who teach elder law. But consider the following from the author:
You can put off retirement, and many are. The labor force participation rate for those 65 and older increased from 12.4 percent in 1994 to 18.6 percent in 2014. But you can’t put off aging. The collapse of incomes for this group when they no can longer work is going be a double hit for government, decreasing the taxes they pay just as they need more public services.
The author calls on local governments to be planning for this scenario: "the consequences of dramatic increases in the older poor, including looking at affordable housing, transit and health care." Noting the potential power of the ballot box, the author concludes "Given the size of the baby boom population, a return to the poverty rates that existed among aging Americans before the War on Poverty would result in more than 8 million newly impoverished seniors. They’re not going to sit quietly on a street corner with a tin cup."
Tuesday, May 24, 2016
A very sad story hit the news last week. A Florida man killed his chronically ill wife because they couldn't afford her prescriptions. Florida Man Says He Killed Sick Wife Because He Couldn’t Afford Her Medicine, Sheriff Says explains that the husband in the over 50 year marriage told the law enforcement officer who responded to the call that "[t]he cost of her medications had become so burdensome that they could no longer afford it ... [s]o on Monday morning while she was sleeping, he shot her in the head...." According to the article the husband has been charged with premeditated first degree murder. A representative of the Sherriff's office was quoted as saying that the husband "was perfectly clear on that he was going to be arrested and go to jail, but again, he felt that this is where it had gotten to him and this was his course of action... showed emotion and he was very clear that he was out of options in his mind.” At the time of the story, according to the article, there was no information about their health insurance status.
This story notes the issues with elders on fixed incomes and the costs of medications. There have been stories in the press of late about price spikes in certain medications and the Senate Committee on Aging has held two hearings this year on the topic, available here and here.
Monday, May 23, 2016
The Association for Gerontology in Higher Ed annual meeting is set for March 9-12, 2017 in Miami. The call for abstracts closes June 1, 2016 with the conference's theme "The Future is Here: Educating a New Generation of Professionals in Aging Worldwide." A number of tracks will be offered, including on these topics:
Curriculum and Policy Issues
Translating Research to Education and Training
Program and Curriculum Development
Diversity and Social Justice for Older Persons
More information about submitting an abstract is available here.
Sunday, May 22, 2016
Two ABA commissions and two ABA sections have created the PRACTICAL supported decision-making tool for lawyers which "aims to help lawyers identify and implement decision-making options for persons with disabilities that are less restrictive than guardianship." PRACTICAL is the acronym for the steps the lawyer takes to identify the options both during the interview with the client and after when considering the case. The tool is available both as a fillable pdf or a word document. There is also an accompanying resource guide in pdf.
Download your copy now!
Friday, May 20, 2016
I had mentioned previously that I was looking at the Genworth annual cost of care survey. As a corollary, Genworth has information about who provides care, referred to as The Expanding Circle of Care. The website mentions the caregivers, with "[t]he Beyond Dollars Research reveal[ing] 5 key insights on the true impact of long term care." The Expanding Circle of Care Beyond Dollars 2015 explains the 5 "key insights" in the executive summary. The circle of care is explained as:
The financial, physical and emotional demands of providing care for a loved one can sometimes be more than a single caregiver can handle. The good news is that more family members are helping provide care. The opportunity to plan for the likelihood of needing long term care before a crisis situation occurs remains large. Our research has shown that a "Circle of Care" often forms around the care recipient, involving people who provide different levels and types of support.
The second insight is that although caregivers are positive about their role of caregivers, they note that "[c]aregiving can negatively impact health & well-being", including familial relationships and interactions with friends. The third insight is instructive regarding the future: "Caregivers’ savings and retirement funds are at risk"
Caregivers who help provide financial assistance for the care of their loved ones estimate that they pay, on average, a total of about $10,000 in out-of-pocket expenses.
That’s up from an average of $7,285 in 2010. Those financial expenses can include everything from household expenses, personal items, or transportation services, to payment of informal caregivers or long term care facilities.
Most caregivers did not anticipate or plan for this expenditure. In many cases, they are cutting back on personal spending and savings. More significantly, some may be jeopardizing their own financial futures.
It follows logically then that the fourth insight builds from the third one: "Caregivers’ careers and livelihoods are impacted by providing care." The caregivers who work reported a definite impact on their jobs, which in turn impacts the caregiver's bottom line. "Absences, reduced hours and chronic tardiness can translate into a significant reduction in a caregiver’s paycheck."
The executive summary is available here.
Thursday, May 19, 2016
While I was on the Genworth site looking at the looking at their annual Cost of Care survey findings, I noticed their simulated aging project, R70i Aging Experience. The Genworth R70i Aging Experience, according to the website "uses state-of-the-art technology to help people step into their future selves and directly experience the physical effects associated with aging. The experience reinforces the importance of thinking about future long term care needs and talking to loved ones about how they would like to age." The website offers interactive controls so the user can examine certain points of the "aging suit" as well as a video that shows how the suit functions along with a narration. This would be really cool if we could have one for our students to use, so they can experience it firsthand. (If anyone from Genworth is reading this and wants to donate one to us, I promise we'll share with other educational institutions :-))
Wednesday, May 18, 2016
We have blogged before about the idea of aging that is something to be "cured". The recent article in the New York Times explained some cutting edge research about fighting aging. Dogs Test Drug Aimed at Humans’ Biggest Killer: Age explains about a clinical trial with dogs that has implications for humans "the trial also represents a new frontier in testing a proposition for improving human health: Rather than only seeking treatments for the individual maladies that come with age, we might do better to target the biology that underlies aging itself." The drug being tested on dogs was previously tested on mice and "improved heart health and appeared to delay the onset of some diseases in older mice" but there is no guarantee that the same result will be achieved with dogs.
According to the article, age itself serves as a huge risk factor for a number of fatal diseases, so "[a] drug that slows aging, the logic goes, might instead serve to delay the onset of several major diseases at once." "Geroscience" that is "the study of aging’s basic biology" according to those quoted in the article, hasn't received a lot of attention. There's some genius in the approach of testing this drug with dogs, given American's love affair with their dog family members.
“Many of us in the biology of aging field feel like it is underfunded relative to the potential impact on human health this could have,” said Dr. Kaeberlein, who helped pay for the study with funds he received from the university for turning down a competing job offer. “If the average pet owner sees there’s a way to significantly delay aging in their pet, maybe it will begin to impact policy decisions.”
The article explains that research has been more "disease-specific" rather than globally looking at slowing down aging. Although the article does mention some projects that are specifically looking at slowing down or reversing aging. The article also explains the challenges for research in this field. What would be the results to humans if this research proves successful? A longer, healthier life. And if it isn't successful? Dr. Kaeberlein, explained: “I would argue we should be willing to tolerate some level of risk if the payoff is 20 to 30 percent increase in healthy longevity,” he said. “If we don’t do anything, we know what the outcome is going to be. You’re going to get sick, and you’re going to die.”
Tuesday, May 17, 2016
I've reached that annual ritual known as "let's clean off my desk because that is more fun than grading exams." Always a good opportunity to find a few treasures that escaped my closer attention during the academic year. And along that line, I was intrigued to find the two-part series on "Alternative Litigation Finance," written by Holland and Knight attorneys Robert Barton and Wendy Walker.
What Is Alternative Litigation Finance? The structure of a litigation finance deal can vary significantly depending on the type of case, the company involved, the stage of the case when funding is sought, the amount of money requested, and many other factors. At its core, though, ALF is the advancement of funds to attorneys or clients by a thirdparty company to pay legal fees and costs related to litigation. In general, a litigation funder makes a return on the funds, whether through interest earned over the life of the advance, a multiple of the advanced amount, or a percentage of the recovery paid to the client at the conclusion of the matter. The transaction is typically nonrecourse, meaning the company only recovers to the extent that the client recovers. The funder does not look to the client’s other assets, beyond the settlement or judgment, to satisfy the repayment of the funds. In some circumstances, however, the client may offer additional collateral to secure the amount needed.
To provide maximum protection for the client, at the outset of a new matter, an attorney should request a written confidentiality agreement among the funder, the client, and the attorney. The agreement should provide the express recognition that any nonprivileged, but confidential, information that is shared is done so with the intent to maintain its confidential nature. Although not a full guarantee against future disclosure, such an agreement does demonstrate the intention of the parties and has been a persuasive argument to courts evaluating disputed discovery issues.
These articles originally appeared in the ABA's publication, Probate and Property, with the second of the two articles published in the November/December 2015 issue. (The good news is that by waiting a bit, both of these articles are now available on the web, and not just through the ABA subscription.)
Monday, May 16, 2016
Have you ever been surprised by a loved one who, even with Alzheimer's, will sing or recite poetry? If you've had that experience, you will probably be as intrigued as I was by the Alzheimer's Poetry Project. Here are the details.
Sunday, May 15, 2016
We have posted before about family caregivers and their importance. AARP's May 10, 2016 blog post, Eldercare Primarily Concerns Older Workers and Their Employers, Right? Think Again, explained that "[f]or employers big and small, the need to support workers who also provide unpaid care for a family member is a growing reality." A huge number of family members who work (60%) also serve as family caregivers. Here's an important point about those 60%, slightly over 50% of them are at least 50 years old. But caregiving is not just an elder law issue, because there is a significant number of younger caregivers too. Almost three-quarters of millenials reported that they were caregiving and working. The blog post ends with the suggestion that
"[a]dvancing a culture of understanding about eldercare needs is especially important to help make the workplace more supportive of workers who are also family caregivers — many of whom are in their prime working years."
Friday, May 13, 2016
Evict, Reject, Discharge: Are Nursing Homes Following the Rules or Is the Problem Bigger than "Rules"?
My colleague Becky Morgan posted earlier this week on the AP news story on nursing homes' attempts to evict difficult patients. This week the ABA Journal also linked to the AP story, plus tied the statistical reports of a nation-wide increase in complaints about evictions, rejections and discharges to one man's struggle to return to his California care center following what should have been short term hospitalization for pneumonia.
The story of Bruce Anderson is a reminder that a need for high-quality, facility-based "long term " care is not limited to "elderly" individuals. But it is also a reminder that individuals with serious behavioral issues, not just physical care needs, complicate the picture. Anderson experienced a severe brain injury at age 55 following a heart attack, but his younger age, lack of "private pay resources," and a history of apparently problematic behavior, are all reasons why a "traditional" nursing home may seek to avoid him as a resident.
The ongoing California litigation over Mr. Anderson and similarly situated residents heightens the need to think critically about whether we're being naive as a nation about "home is best" shifting of funding resources. Certainly there are many -- and probably too many -- individuals in facilities when they could be maintained at home if there was more funding to supplement family-based care.
At the same time, I tend to see this as downplaying the very real needs for high-level, behavioral care for individuals who aren't easily cared for by families or "traditional" nursing homes, much less by hospitals organized around critical care. It is about more than mere eviction, discharge and rejection statistics. The 1999 Olmstead decision was a watershed moment in recognizing the need for de-institutionalization of those with disabilities. But it may have pasted over the real need for quality of assistance and care in any and all settings, and what that means in terms of costs to a nation.
My thanks to Professor Laurel Terry at Dickinson Law who took time away from the fun of grading her exams to send us the ABA story.
Thursday, May 12, 2016
The latest issue of Biofocal from the American Bar Association Commission on Law & Aging is out, and the cover story is an article by Erica Wood on Evaluating the Capacity to Drive. Ms. Wood explores the question of what is the needed capacity to drive, and notes the skills one needs to be a safe driver.
[E]valuating capacity to drive is of course different from evaluating capacity to make decisions or execute legal transactions. First, driving involves a mix of mental, physical, and sensory abilities. Second, driving has serious risk not only for oneself but also for others as well. And third, the determination of capacity to drive initially rests not with a judge but with the commissioner of the state department of motor vehicles—although judges may well be involved in decisions about drivers licenses, as described in the “View from the Bench” by Judge Lyle. While state laws vary, the Uniform Vehicle Code provides that a license may be denied if the state commissioner finds that a person “by reason of physical or mental disability would not be able to operate a motor vehicle with safety upon the highways” (National Committee on Uniform Traffic Laws and Ordinances).
Using the ABA/APA handbook for psychologists "general capacity evaluation framework," Ms. Wood breaks down the assessment elements for capacity to drive: the legal element, the functional component, diagnosis, values, mental health assessment, risk assessment, and clinical judgment that is needed in order "to integrate all of the evidence from the previous steps on supports, conditions, risks, abilities and limitations." The article underscores the need to examine the driver's values, consider emotional factors such as hallucinations and whether the person has capacity with support. Capacity with support is explained as "supports and accommodations that might enhance ability."
In the driving context, this might mean a change of eyeglasses, a higher seat or pillow, a revolving seat, or pedal modifications. With such supports, a functional assessment will test for visual acuity; flexibility to look behind and check blind spots on the road; and strength for control of the steering wheel, brakes, accelerator, and clutch. An assessment also will test the driver’s knowledge about driving rules and what to do in emergency or unexpected situations.
A pdf of the article is available here.
Wednesday, May 11, 2016
On May 6, 2016, the New York Times ran an article by Paula Span for the New Old Age series, Finding Out Your Power of Attorney Is Powerless. Experienced elder law attorneys are unlikely to be surprised by the point made in the article: financial institutions want customers to use their own powers of attorney, not one drafted by the customer's lawyer. The article notes this is "very unwelcome news, because by now the older account holders may not be competent to sign legal forms." One frustrated customer offered this insight "[w]e have a power of attorney, but we can’t use it ... People sign these anticipating incapacity. Once incapacity arrives, it’s too late to sign another one.”
As the article notes, this isn't a huge revelation to elder law attorneys but "[i]t’s not clear how often similar scenarios, with their Catch-22 absurdity, take place." The article offers the other side of the issue, from the financial institution's perspective, since these institutions are in charge of the customer's money, and everyone knows about the increase in financial exploitation, issues with diminished capacity of customers and family members who are the perpetrators. But notes one expert, "banks have other motivations, too. 'Typically, when they’re insisting on their own forms, they’re concerned about liability,'”
The article offers suggestions-have a lawyer intercede with the financial institution or be proactive and "ask... a brokerage or bank if it requires its own durable power of attorney document and, if it does, having your relatives sign it when they are still capable of doing so. You’ll have to do this for every institution where they have an account." There is a big caveat with this second suggestion, according to the article, quoting Craig Reaves, a past president of NAELA: "read those bank forms carefully or have a lawyer review them, Mr. Reaves advised. They can contain disadvantageous indemnity or arbitration clauses, or provisions that contradict the individual’s general power of attorney. In such cases, 'I’ll tell clients not to sign, and we’ll fight the fight,' he said." Some family members caught in the catch-22 came up with their own solutions, such as opening accounts at other financial institutions or waiting until the parent is having a "lucid moment" to sign the bank's form.
It's hard to explain to students why a financial institution refuses to accept a legally valid DPOA drawn by an attorney. This article sheds some light on the problem, but clearly, it's still a problem.
Tuesday, May 10, 2016
Let's just start by saying the article I'm about to cite is a must-read for us.
The AP did a story on May 8, 2016, Nursing homes turn to eviction to drop difficult patients. The article opens "Nursing homes are increasingly evicting their most challenging residents, advocates for the aged and disabled say, testing protections for some of society's most vulnerable...Those targeted for eviction are frequently poor and suffering from dementia, according to residents' allies. They often put up little fight, their families unsure what to do. Removing them makes room for less labor-intensive and more profitable patients, critics of the tactic say, noting it can be shattering."
The AP did a study of data from the Long-Term Care Ombudsman Program and learned that complaints regarding involuntary discharges have increased by about 57% since 2000. "[Discharge] was the top-reported grievance in 2014, with 11,331 such issues logged by ombudsmen, who work to resolve problems faced by residents of nursing homes, assisted living facilities and other adult-care settings." Why this increase in discharges? The article offers that the involuntary discharge often happens "because the resident came to be regarded as undesirable — requiring a greater level of care, exhibiting dementia-induced signs of aggression, or having a family that complained repeatedly about treatment, advocates say. Federal law spells out rules on acceptable transfers, but the advocates say offending facilities routinely stretch permitted justifications for discharge. Even when families fight a move and win an appeal, some homes have disregarded rulings."
The American Health Care Association offers an opposing view of the discharges, explaining that in some cases it is "lawful and necessary to remove residents who can't be kept safe or who endanger the safety of others, and says processes are in place to ensure evictions aren't done improperly."
The article also includes examples where a resident is admitted to a hospital and when ready to return to the nursing home, is refused readmission. Several cases are highlighted in the article, with experts from both sides of the issue offering opinions. The article also references staffing levels and the trauma encountered by residents who find themselves in a discharge situation.
Have your students read the applicable federal statute and then this article. I guarantee an interesting discussion.
Monday, May 9, 2016
The May 2016 issue of the South Carolina Bar Journal, SC Lawyer contains the article, Quick and Dirty Tips to Prevent Power of Attorney Abuse. The author offers several tips, starting with meeting with the client alone, determine if the client has capacity to sign the DPOA, ascertain the client's goals and expectations, "name an honest, trustworthy and trusted agent" (the author suggests the attorney "[google the agent and check your local court judgment index"); consider co-agents; use a springing POA; include an accounting provision to require the agent "to account in some fashion to a family member(s) or other trusted individual. It can be as formal or as informal as the principal desires. In that way there is another person informed about the principal’s financial situation" and even using a "cooling off" period for the client to think further before signing the DPOA.
The article also covers actions when the agent misuses the DPOA. The article concludes
There is no easy answer to the problem of elder financial abuse. There is no silver bullet. Elder financial abuse is a problem that is only going to get worse. We as attorneys can’t prevent all financial abuse, but we need to be aware of, and adopt, measures that reduce the risk of durable power of attorney abuse. The threat can never be eliminated, but with communication and education, it can be minimized.
Thanks to the article's author, Michael J. Polk, for sending me the link to the article.
May 9, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Sunday, May 8, 2016
The New York Times recently ran an in-depth article about Alzheimer's impact on one woman. Fraying at the Edges covers the journey of Geri Taylor, who at the beginning stages of Alzheimer's is described as in the "waiting period" of Alzheimer's. This 12 page article is an incredible personal look at one person's life with Alzheimer's. The article is accompanied by photos and short videos. Read this article!