Monday, July 28, 2014
Recently a former law student who is considering a career change asked me about elder law, wanting to meet with me to discuss what is involved. I'm happy to chat any time with current and former students, especially about elder law, but this time my advice was simple: "Drop everything and go to Pennsylvania's 2014 Elder Law Institute." Indeed, this year saw some 400 individuals attend.
Important to my advice was the fact that ELI is organized well for both "newbies" and more experienced practitioners. After the first two-hour joint session, over the course of two days there are four sessions offered every hour. One entire track is devoted to "Just the Basics" and is perfect for the aspiring elder law attorney. Indeed, I usually sponsor two Penn State law students to attend. As in most specializations, in elder law there will is a steep learning curve just to understand the basic jargon, and the more exposure the better.
One of my favorite sessions is the first, "The Year in Review," a long tradition at ELI and currently presented by Marielle Hazen and Rob Clofine. Marielle reviews new legislation and regulations, both at the state and federal level, while Rob does a "Top Ten Cases" review. Both speakers focus not just on what happened in the last 12 months, but what could or should happen in the future. They frequently pose important policy perspectives, based on recent events.
Among the highlights from the year in review session:
- Analysis of the GAO Report on "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage" released in late June 2014. Data collection efforts focused on four states and reportedly included "under cover" individuals posing as potential applicants. The report summarizes techniques used to reduce countable resources, most occuring well within the rules and thus triggering no question of penalty periods. Whether Congress uses the report in any way to confirm or change existing rules remains to be seen.
- A GAO Report on Medicaid Managed Care programs, also released in June, concluding that additional oversight efforts are needed to ensure the integrity of programs in the states, which are already reporting higher increases in outgoing funds than fee-for-service programs.
- The need to keep an eye open for Pennsylvania's Long Term Care Comission report, expected by December 2014. Will it take issue with the Governor's rejection of the Affordable Care Act's funding for expansion of Medicaid?
- Report on a number of lower court decisions involving nursing home payment issues, including a report on a troubling case, Estate of Parker, 4 Pa. Fiduciary Reporter 3d 183 (Orphans' Court, Montgomery County, PA 2014), in which a court-appointed guardian of the estate of an elderly nursing home patient "agreed" to entry of a judgment, not just for nursing home charges, but also for pre- and post-judgment interest, plus attorneys' fees for the nursing home's lawyer of almost 20% of the stipulated judgment, in what was an uncontested guardianship.
In light of the number of nursing home payment cases in Rob's review, perhaps it wasn't a surprise that my co-presenter, Stanley Vasiliadis, and I had a full house for our session on "Why Am I Being Sued for My Parents' Nursing Home Bill?" We examined how adult children (and sometimes elderly parents of adult children in care) are finding themselves the target of collection efforts by nursing homes, including actions based on theories of breach of promise (contract, quatum meruit, and promissory estoppel), fault (common law fraud or statutory claims of "fraudulent transfers), or family status, such as statutory filial support.
The extensive course materials from all of the presenters, both in hard copy and electronic formats, are available for purchase directly from the Pennsylvania Bar Institute.
July 28, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Sunday, July 27, 2014
The Amsterdam, also known as Amsterdam House at Harborside, has been marketed as the "first and only" life care community in Nassau County. It now also appears to be the first CCRC in that county -- and perhaps in the state of New York -- to seek the protection of the bankruptcy court. The company filed under Chapter 11 for "Reorganization" on July 23, 2014.
As reported in Newsday on July 23:
"An upscale retirement community in Port Washington has filed for bankruptcy protection after failing to get all of its bondholders to support a debt restructuring. The Amsterdam at Harborside sought protection in federal court from its creditors under Chapter 11 of the U.S. Bankruptcy Code. Executives at the not-for-profit said Wednesday that it would not close and there are no plans to fire any of the 173 employees. In a court filing in Central Islip on Tuesday, the continuing-care complex said its liabilities and assets were both in the range of more than $100 million to $500 million."
According to news reports, The Amsterdam was opened in 2010, near the peak of the recession, a tough time for many CCRCs. It is a "refundable entrance" fee model, with entrance fees ranging from $500,000 to $1.6 million, with a reported 85% occupancy status. Newsday also reports that "under the proposed restructuring plan, [company spokespersons said] the retirement community would honor the contracts of existing residents, continue to refund residents' money when they no longer live there, and maintain the current fee structure."
Update: Senior Housing News describes the filing as a "pre-negotiated chapter 11 bankruptcy petition to restructure an estimated $220 million in debt."
Tuesday, July 22, 2014
Mexico and countries in the Caribbean, Central and South America have been working very hard on the question of whether laws are needed to recognize and promote the human rights of older persons. This commitment was demonstrated during the 2014 International Elder Law and Policy Conference in Chicago, by Rosa Bella Caceres Mongelos from Paraguay, as one of the speakers on the panel focused on "Dignity, Equality and Anti-Ageism Rights of Older Persons."
Professor Caceres Mongelos is the current president of the Central Association of Retired Public Servants and Teachers in Paraguay, and has experience as a master teacher, educational administrator, and vocational counselor. She has also taught classes at the university level on leadership. When I asked whether her organization is comparable to AARP in the U.S., which was started by a retired teacher, she laughed and said "maybe some day." I think she would not mind me saying that she's tiny but powerful -- and certainly she is an articulate spokesperson for the issues her country, with a total popularion of 6.8 million, is facing.
Professor Caceras Mongelos has served as a spokesperson for her civil society organization during regional meetings for Latin America and the Caribbean in 2012 and 2013 that led to endorsment of a formal international convention on the rights of older persons.
The participation of Paraguay in international discussions of aging is forward-thinking, as it is actually a comparatively young country in terms of its overall population. Persons aged 60 and over comprise approximately 8% of the population. Recent news reports indicate that more than 66% of its population is less than 30 years old. At the same time, with their citizens already experiencing relatively long-life spans, especially on a comparative basis (average life span is now 75 according to some reports), the country will begin to see the impact of aging as a nation starting in 2038.
The organization headed by Caceres Mongelos has adopted advocacy goals for its members, including health related goals, such as securing free health care (including mobile clinics) for retirees for critical matters such as vision and dental care, and for treatment of cancer and chronic diabetes, all issues recognized as important for the self-esteem of older persons. Her Central Association has a project called "Hogares de Jubliados" or "Homes for the Elderly," with a goal of providing space for as many as 200 persons deemed vulnerable and unprotected. Her organization seeks to "monitor and insure safekeeping of social security funds under control of the treasury" during the current fiscal crisis. A better system of public transportation is another key goal.
She described her Central Association's recent Yellow Ribbon Campaign to re-enforce recognition of the rights of civil services and retirees to be free from pay discrimination under the Constitution of Paraguay. She described the yellow ribbons as symbols for the "struggle to claim solidarity, love, better living and the light of hope for a bearable and dignified old age." Despite the small proportion of Paraguayans currently deemed older -- in their "third age" -- she said "fragility" often characterizes their life conditions, with more than a quarter of the population of older adults illiterate and with only 19% currently receiving any form of income from pension or retirement benefits. In addition, her association stresses that real attention must be paid to the needs of older persons in indigenous communities and Afro-descendants.
In closing, Professor Caceres Mongelos called for an end to procrastination on international recognition of the rights of older persons. She said, "Declaring and implementing the regulations calling for dignity, equality and non-discrimination ... for older persons needs to be achieved as quickly as possible [toward] the goal of improving quality of life and respecting the human rights of older persons."
Friday, July 18, 2014
The story of Kitty Lee, age 75, and her beloved border collie Zoe, age 18, captures so much that can be poignant about aging. From the Albuquerque Journal, in a story by Joline Gutierrez Krueger:
"For months, Lee knew it was time to say goodbye to Zoe, her constant companion since 1999. The tumor had gotten so big, and Zoe had gotten so weak. Her gentle brown eyes were clouding over. She couldn’t hear. It wasn’t fair to force her to live this way just for Lee’s sake.
“She deserves better than this,” said Lee, 75. “She deserves to die with dignity.”
But dignity is hard to pay for.... Today, Lee lives on a monthly $800 Social Security check, just enough to pay for groceries, bills and rent for the broken-down RV parked in a West Central [Albuquerque, New Mexico] trailer court."
The costs and procedures for euthanasia for the suffering collie were more than Lee could handle alone. Plus, she did not want to simply abandon the decision to others; she wanted to be part of a safe and humane process for Zoe. The Albuquerque Journal writer's first news story resulted in donations and offers of assistance. Eventually, Lee's collie "died peacefully and with dignity in her woman's arms."
I suspect if you have read this far, you too might have a tear in your eye. The full story is here.
Monday, July 14, 2014
I suspect that even in this overcrowded world of news and information, many of our readers have their favorite correspondents, whose emails always provide value added. One of my favorites along this line is Dionysios C. Pappas, Esq., better known to Pennsylvania elder law practitioners and VA specialists as Dennis.
Today Dennis shared a "very disturbing" on-line account from the Philadelphia Inquirer about "disarray" in the Veterans' Administration center in Philadelphia, which is a regional processing center for claims. Dennis points to the latest news of a laundry list of problems, including:
- “...mail bins brimming with claims dating to 2011...”
- “...Two whistle-blowers..., described the process the same: "cooking the books." "They're hiding the real numbers from the people and saying, 'We're catching up to the backlog,'..."But they're not. They're just hiding it."...”
- “...Staff "cherry picking" easy claims and processing them out of order to inflate performance...”
- “...Staff not addressing more than 32,000 electronic inquiries from veterans regarding the status of their claims...”
- “...Staff hiding mail...”
- “...Staff shredding military and returned mail that couldn't be delivered...”
Saturday, July 12, 2014
University of Missouri Law Professor David English, who is the current Chair of the ABA Commission on Law and Aging, provides a succinct outline of key legal challenges connected to aging in the U.S., an outline he also uses to organize his law school's Elder Law course. The essay appears in the May/June issue of Bifocal, capturing a lecture Professor English gave to the Institute of Gerontology at the University of Tokyo, Japan and the Beiing Administrative College in China.
In addition to the impact of demography, Professor English points to the following "challenges:"
- Employer Pensions: "In many countries, pensions provided by employers are closely coordinated with government Social Security payments. In the US, the two systems are independent...."
- Social Security: "It is predicted that the [Social Security] Trust Fund will run out of money in 2033. The program will thereupon have to cut benefits by about 25% in order to match payments to current Social Security taxes. To avoid such a sudden cut, Congress should act well in advance of the 2033 deadline to either increase Social Security taxes or modify benefits. Each year that the US Congress waits to act, the necessary adjustments will become more severe...."
- Health Care Finances: "...Medicare already has many gaps in coverage, requiring that elderly persons purchase private supplemental policies. Medicaid for the poor isn't necessarily in better financial shape, and because of low fees paid by Medicaid, many doctors refuse to accept Medicaid patients. Nor are Medicaid benefits coordinated well with Medicare...."
- Consumer Fraud: "The elderly are frequent targets of fraud. Federal and state regulation is incomplete and inconsistent.... Examples include: mortgage fraud; fraudulent sales of private health insurance; theft by court-appointed guardians; theft by agents under powers of attorneys; funeral fraud; telemarketing, home repair, and sweepstakes fraud."
- Guardianships: "Over the past 30 years, there have been major reforms in US guardianship laws. The court is encouraged to explore alternatives to guardianship before making an appointment. In making an appointment, the court is encouraged to give the guardian only such powers as are necessary, a goal which is achieved by appointing what is known as a limited guardian. But there is a big gap between the statute and the actual practice."
- Planning for Incapacity: "Most people will lack adequate mental capacity to make their own decisions sometime during their lives. Yet, most adults fail to plan in advance. There is a need for better education on the options and encouragement for people to plan."
- Health Care Decisions: "[S]igning a health care power of attorney or health care directive may not be effective to assure that health care decisions are made in accordance with the individual's wishes.... POLST [Physician Orders of Life Sustaining Treatment] shows great promise of creating a pathway whereby a patient's wishes will more likely be honored."
- Elder Abuse: "Similar to guardianship, good data on the prevalence of elder abuse does not exist but the increases in the number of elderly suggest a corresponding increase in the incidence of abuse."
Professor English was also one of the participants at the 2014 Elder Law and Policy Conference recently held at John Marshall Law School in Chicago, serving as a moderator, with JML's Barry Kozak, for the panel on "social security, pensions, and economic rights of older persons."
Thursday, July 10, 2014
One of the effects of "devolution" in the United Kingdom has been opportunities for Northern Ireland, Wales and Scotland to consider afresh their domestic laws and policy guidelines, separate from the mandates of Parliament in London. As those following recent UK news will know, Scotland this has gone beyond mere "home rule." A referendum vote on full independence is scheduled in Scotland for September 18, 2014.
Northern Ireland has not moved as quickly on adoption of domestic laws and policies. In part because of interruptions in efforts to fully establish home rule following disruptions of violence and the "Troubles," the process of enacting NI domestic laws has been slower paced than in Wales or Scotland, even after the Good Friday Agreement of 1998.
Nonetheless, high on the domestic agenda in NI have been laws and policies related to older people. One of the first modern era laws passed by Stormont was domestic legislation that established an independent Commissioner of Older People for NI. The discussions on that law overlapped with my Fulbright year and sabbatical in NI in 2009-10, and resulted in passage in January 2011.
The first Commissioner, Claire Keatinge, was appointed to a four year term in November of 2011. In my observation, Claire is a force of nature and if anyone can create a clear path to establish ageing as a priority matter for action in NI, it will be this dynamo.
On June 25, Commissioner Keatinge presented her call for fresh adult safeguarding legislation in NI. With emerging data suggesting significant increases in the number of cases of alleged abuse of older people, Commissioner Keatinge commissioned an evaluation of existing laws and comparative approaches in other nations. She asked whether and how NI can better protect adults from abuse, including physical, emotional, sexual and financial abuse. After receipt of the academics' report, her in-house legal team responded, helping her present a clear written call for action, a template for legislation.
As explained in her launch on June 25, the Commissioner advocates for:
- Clear definition of "adult at risk," the target term for safeguarding measures and not limited to older adults, as well as enhanced definitions of abuse or harm, and especially of financial abuse;
- Establishment of an adult safeguarding board, with statutory powers;
- Specific duties for relevant bodies and organizations within NI to report, investigate, provide services and cooperate with other agencies to order to better protect "adults at risk;"
- Specific powers of access to an individual believed to be at risk of harm or abuse, to defuse the potential for the abuser to influence the investigation process; and
- Protection from civil liability for those making reports of suspected abuse.
Further, Commissioner Keatinge recommends additional consideration be given to whether an Adult Safeguarding Bill -- as a single piece of legislation -- should grant specific powers to authorities to remove an individual at risk or ban a suspected abuse from contact. Her call for action recommends consideration of a specific grant of power to access financial records, often deemed crucial to investigation of financial risk and proof of abuse. Also on the Commissioner's radar screen is the potential adoption of specific criminal charges for "elder abuse" or "corporate neglect."
It has been exciting for me to see the evolution of the Commissioner's role and her use of the Queens University Belfast and University of Ulster academic reviews (on which I consulted). Professor John Williams (depicted on the far left, next to Claire Keatinge in yellow), head of the department of law and criminology at Aberystwyth University in Wales provided forceful support for the proposed legislation in Northern Ireland during his commentary at the launch, saying the status quo cannot be justified.
I'd like to say I see an easy path for a comprehensive Adult Safeguarding Law to emerge in the near future for Northern Ireland, thus serving as a role model for other jurisdictions facing similar issue.
I have to admit, however, that I was discouraged by what sounded -- at least to me -- like vacillation coming from key government leaders. The Minister of Health, Social Services and Public Safety in the Northern Ireland Executive, Edwin Poots (above, in the blue tie). spoke at the Commissioner's launch, expressing his own concern for older people as victims of abuse, especially financial abuse; however, I was disappointed when Minister Poots predicted that it would not be possible for Stormont to reach the issue of safeguarding legislation in the next 21 months. (Of course, coming from the political gridlock of Congress in the U.S., and as a witness to the snail's pace for protective legislation in my home state of Pennsylvania, I guess I should not be too surprised.)
Still, the good news is that the first major steps have been taken by Commissioner Keatinge and her capable staff including Catherine Hewitt and Emer Boyle, with strong support at the launch from social and health care professionals who have seen first hand the potential for subtle and not-so-subtle abuse of elder, disabled or frail adults in Northern Ireland.
And by the way, Professor Williams from Wales will be one of the presenters at the 2014 International Elder Law and Policy Conference at John Marshall Law in Chicago, speaking on older persons' access to justice as a key component of international human rights on Friday, July 11. It is a small world at times and one with a growing commitment to tackle key topics in ageing.
Monday, July 7, 2014
Sunday, July 6, 2014
I'm back from a fun and productive time in Northern Ireland, and feeling invigorated. In addition to enjoying beautiful weather, great craic, and time spent with friends exploring the north Antrim coast via foot, boat and a friend's snazzy red convertible, I participated in working meetings in Belfast conducted by Claire Keatinge, the Commissioner of Older People for Northern Ireland (COPNI). The topics were prospective laws and guidance regarding safeguarding and social care policies for older adults, connected to commissioned research by two academic teams headed by members of Queens University Belfast.
I've been thinking about one particular theme that emerged for me from the working sessions: does a government's commitment to assess need for services obligate the government to meet those needs? In a perfect world, of course that would be the goal, but this is hardly a perfect world. Claire Keatinge (pictured in the center, with members of the social care research and advisory teams) raised the point that too often governments may be driven by "what services are available" as the definition of need. In other words, there is a tendency to recognize an individual's need only if the government actually has a program or package of services available. Thus, for example, even if the individual needs one-on-one monitoring and assistance to avoid serious risk of injury from falling, the tendency of social care programs would be to indicate 4 hours per day of "need" if that was the limit of government funding. Such "backwards" assessment leaves the person vulnerable, not just from the limitations on public funding, but from the inaccurate record of need.
We spent time talking about whether legislation or policy guidance should address both assessment of need and programs of service. The COPNI discussion helped me to realize that accurate assessment and recording of all need is critical to coordination of family, volunteers, nonprofit or church-based assistance, and government funding to meet the true needs of disabled or frail individuals. However, assessment of need still carries implications for government funding.
The implications of assessment are addressed in an important recent decision of the European Court of Human Rights in McDonald v. United Kingdom (Application No. 4241/12). In the case, a British woman born in 1943 sustained a disabling stroke in 1999, followed by a badly broken hip from a later fall. Ms. McDonald, who was not incontinent, applied for assistance at night with toileting; eventually she was assessed as being in "substantial need" of nighttime personal assistance and provided a funding package that permitted her to have nighttime assistance. However, later the government office reduced the funding, appearing to conclude the cost was excessive and "incontinence pads" for nighttime use was sufficient, reducing the number of hours of service.
Ms. McDonald challenged the reduction of services under Article 8 of the European Convention on Human Rights, arguing the decision violated her right to respect for her private life, and that the local authority was "unreasonably and unlawfully failing to meet her assessed and eligible needs." Several months later she was reassessed by the local authority, which then determined that Ms. McDonald's needs for "safety" at night could be adequately met by the use of incontinence pads and sheets. Ms. McDonald framed an emotionally persuasive case that the ability to toilet in a dignified manner was a core human right.
Ms. McDonald's appeal was addressed by high courts in England, before reaching the European Court of Human Rights, which issued a decision in May 2014. Ultimately the court concluded that during the period of time between the initial assessment of "substantial" need and the later reassessment, a period of about a year during which Ms. McDonald was provided with limited nighttime assistance, was a violation of Article 8. She was therefore deemed entitled to a relatively nominal sum of damages (explained in a detailed portion of the opinion). However, once the local authority's "reassessment of need" occurred, the Court determined it was without the power to find a human rights violation under Article 8. This outcome strikes me as demonstrating the potential for governments to be driven by finances to avoid making independent, candid assessments of need. Ms. McDonald's physical conditions and nighttime needs had not changed; only the "assessed needs" had changed.
For more on the implications of the McDonald ruling, viewed by many as a "win" because it recognized a personal right protected under Article 8, see English Barrister Steve Broach's thoughtful commentary, "Context is Everything: Why McDonald v. UK is a Stepping Stone on the Road to a Dignified Future for Disabled People."
Friday, June 20, 2014
I'm at the mid-point in a three-week period of fairly intense focus on elder protection issues.
Last week, I accepted the invitations of Dickinson Law alum Bob Gerhard and Judge Lois Murphy to join them at the Montgomery County Elder Justice Roundtable to discuss practical concerns about elder abuse at the local level. Bob and I conducted two sessions on Powers of Attorney.
This week, I've had the privilege of being part of working sessions of the Pennsylvania Supreme Court's Elder Law Task Force. Judge Murphy, right, is also a part of this effort. A fascinating mix of trial and appellate level judges, district attorneys, legal aid specialists, solo practitioners, "big firm" lawyers, court administrators, state officials, protective service case workers, social workers (and a couple of us academic types) spent two intense days discussing a year's worth of research on how better to serve the interests and needs of adults who may be at risk of neglect or intentional harm, including financial abuse. Guided by the charge of Justice Debra Todd of the Pennsylvania Supreme Court, we're looking to issuance of a comprehensive report and recommendation for actions, probably in the early fall 2014.
Next week, I land in Belfast, Northern Ireland for several days of working group meetings on law and aging topics. On Tuesday, June 24, I am part of a research team's Roundtable discussion on recommendations regarding "social care" for older persons. hosted by the independent Commissioner of Older Persons in Northern Ireland (COPNI). Our team leader for that project is Dr. Joseph Duffy of Queen's University Belfast. The following day, I will attend the COPNI's launch of "Protecting our Elder People in Northern Ireland: A Call for Safeguarding Legislation in Northern Ireland." Commissioner Claire Keatinge and her team have been tireless in pursuing a full agenda of safeguarding, care and dignity goals for seniors. Last winter I worked on research findings and recommendations with team leader Dr. Janet Anand, also of Queens University Beflast, that served as a base for the Safeguarding Law proposals. These two projects have involved amazingly talented scholars from diverse backgrounds, including social work and law in Scotland, England, Wales, Australia and, of course, both the north and south of Ireland. The truth is that I've been an avid "student" during my opportunities in Northern Ireland, often facing the reality that those on the other side of the Atlantic are ahead of the U.S. in thinking about key concepts, especially "social care" goals. I look forward to more work, writing several follow-up articles in collaboration with team members as a result of the rich research environment of the last year.
Following this schedule, I'm probably going to take a break from "daily" blogging for a few weeks. I fear my brain may explode if I don't give it a bit of a rest, and I hear the green hills and fields of Ireland calling to me.
June 20, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)
Sunday, June 1, 2014
As Becky Morgan and I reported earlier, the Law & Society Annual Meeting held in Minneapolis from May 29 through June 1, attracted terrifically interesting speakers, both from within and outside the United States. During the Critical Research Network sessions (CRN) on Aging, Law & Society, I was particularly struck by listening to a trio of speakers from Israel, including Israel (Issi) Doron from the University of Haifa, Michael (Mickey) Schindler from Bar-Ilan University, and Benny Spanier, from Haifa University.
Issi provided a historical perspective on aging as an international human rights issue, tracking the development of action plans under the auspices of the United Nations from 1982 in Vienna to 2002 in Madrid. The 2002 outcome document, the Madrid International Plan of Action on Ageing (MIPAA), expresses the commitment of 160 participating governments, including the United States, to integrate rights and needs of older persons into national, as well as international, economic and social development policies. However, as Issi pointed out, this is a "soft" document, non-binding in nature.
Thus, the next important step is a Convention or Treaty on aging human rights, a subject of on-going discussions in international circles. Issi saw a hopeful sign in May 2014 appointment of a new Independent Expert on Human Rights of Older Persons, Rosa Kornfeld-Matte, by the U.N. Human Rights Council. Kornfeld-Matte served as the National Director of the Chilean National Service of Ageing and has a long career as an academic, working for more than 20 years at the Pontificia Unversidad Catolica de Chile, where she founded a program on older people. The role for Ms. Kornfeld-Matte, who has a 3 year appointment, is that of fact-finder, to provide an independent assessment of the critical issues for aging human rights as the basis for international law.
Micky's presentation focused on the effect of Israel's use -- or relative nonuse -- of legislation adopted in 1966, the "Safety of Protected Persons Law." He pointed to the potential role of social workers in safeguarding the rights of older adults, and suggesting that the flexibility available to the court to fashion court-enforced solutions to care and safety issues might be a better option than what is available under the more-often used guardianship law.
Benny examined some 226 decisions involving claims by older persons before the European Court of Human Rights, drawn from 2000 to 2010, concluding that although the European Convention on Human Rights does not specifically recognize older adults as having protected right, the cases examined demonstrate that individuals making age-based claims for protection are seeking -- and in some instances finding -- relief before this court. Benny's analysis of these cases, in a paper co-authored with Issi and Faina Milman-Sivan, also from the University of Haifa, was published in late 2013 in the Journal of Cross Cultural Gerontology.
Following the first day of presentations and workshops, several of the speakers met for dinner at a local Minneapolis restaurant (Spoonriver, overlooking the Mississippi River -- great spot!), and a number of us were discussing a growing problem for international research. Many of the key journals and periodical publications for aging research are "owned" by publishers who prohibit authors from placing final versions of their papers on open-access research platforms such as SSRN. The prices charged for individual researchers' access to electronic copies of an article are often prohibitive for academic researchers, who often need and wish to cite to multiple sources. We discussed options, such as whether authors should seek to negotiate for unrestricted public access after an initial period of fee-paid access. Others' thoughts on this issue?
Thursday, May 29, 2014
Law & Society Association's Annual Meeting is always a feast -- with hundreds of presentations and papers, often with cross-discipline themes and presenters. This year's four day program starts today in Minneapolis. On tap are three elder law-themed sessions hosted by Aging, Law & Society. The session on "Rethinking Elder Law's Rules & Norms" will be chaired by Nina Kohn, Syracuse University.
Scheduled paper presentations include:
- Adult Protective Services and Therapeutic Jurisprudence, by Michael Schindler, Bar-Ilan University;
- Age, Gender and Lifetime Discrmination against Working Women, by Susan Bisom-Rapp, Thomas Jefferson School of Law and Malcolm Sargeant, Middlesex University Business School;
- Effective Affective Forecasting in Older Adult Caregiving, by Eve Brank and Lindsey Wylie, University of Nebraska-Lincoln;
- Sexuality & Incapacity, by Alexander Boni-Saenz, Chicago-Kent College of Law;
- Beyond the Law: Legal Consciousness in Older Age Care Contexts, by Sue Westwood, Keele University
Nancy Knauer of Temple Law School is chairing the session on "Accessing and Experiencing Jusice in Older Age." Presentations include:
- From Vienna to Madrid and Beyond, by Israel Doron, University of Haifa;
- Lessons from Detroit: Retiree Benefits in the Real World, by Susan Cancelosi, Wayne State University Law School;
- Older Persons Use of the European Court of Human Rights, by Benny Spanier, Haifa University;
- Crossing Borders and Barriers: Assessing Older Adults' Access to Legal Advice in the Search for Effective Justice, by Katherine Pearson, Penn State University Dickinson School of Law, Joseph Duffy, Queens University Belfast, and Subhajit Basu, University of Leeds
A workshop on "Ethics of Care and Support in Law and Aging," to be chared by Sue Westwood, Keele University, includes:
- Aging with a Plan: What You Should Consider in Middle Age to Plan for Caregiving and Your Own Old Age, by Sharona Hoffman, Case Western Reserve University;
- An Ethic of Care Critique of the UK Care Bill/Act, by Sarah Webber, University of Bristol;
- Both Property and Pauper: Slaver, Old Age, and the Inverted Logic of Capitalist Exchange, by Alix Lerner, Princeton University;
- Responding to Financial Vulnerability: Advances in Gerotchnology as an Alternative to the Substitute Decision Making Model, by Margaret Hall, Thompson Rivers University and Margaret Easton, Simon Fraser University
An international cast of characters, yes? More soon, with details from the front.
Monday, May 26, 2014
When I was a child, there was a movie -- or maybe a tv show -- with a friendly robot named Tobor. Tobor soon became an imaginary friend for the neighborhood children, and conveniently, someone we could blame when we forgot to close a door or knocked something over. "Tobor did it!"
Fast forward many years and last week, during a meeting at my Area Agency on Aging, I learned the AAA had entered into a contract with a company that makes home medication dispensers to provide the devices at a modest cost to clients in the county. "Tobor for the Boomer Generation!"
The device, about the size of a blender or coffee machine, can be pre-loaded with a large number of doses of different kinds of medications with different dispensing schedules, and with recorded messages such as "Drink with water." The machine signals the client to take the revealed dose, and continues the signal until the medication is removed. It can also be programmed to contact a family member about a missed dose. Of course, there are limits to the utility of any automated device, as the client must still have the capacity to follow the directions and not simply discard the dose.
It will be interesting to see, over time, whether (and which kind of ) Tobors are effective innovations with long-range satisfaction and utility. I do seem to have a lot of ignored contraptions on my own kitchen counter.
Sunday, May 25, 2014
Working with colleagues from other countries often reveals interesting or humorous uses of language. Last week, while enjoying the visit of Prof. Dr. Dagmar Brosey from Cologne, I learned of "das messie syndrom" or as we might label it in the United States, "hoarding." I like the German label better....
Friday, May 23, 2014
A new report prepared for the Prepared for the National Foundation to End Senior Hunger outlines the state of senior hunger in the US.
In this report we provide an overview of the extent and distribution of food insecurity in 2012 among seniors, along with trends over the past decade using national and state-level data from the December Supplements to the Current Population Survey (CPS). Based on the full set of 18 questions in the Core Food Security Module (CFSM), the module used by the USDA to establish the official food insecurity rates of households in the United States, our emphasis here is on quantifying the senior population facing the threat of hunger (i.e. marginally food insecure). A supplement to this report also presents evidence on seniors at risk of hunger (i.e. food insecure) and on seniors facing hunger (i.e. very low food secure).
This report demonstrates that seniors in 2012 continued to face increasing challenges meeting food need. Specifically, we find that
• 15.3% of seniors face the threat of hunger. This translates into 9.3 million seniors.
• Those living in states in the South and Southwest, those who are racial or ethnic minorities, those with lower incomes, and those who are younger (ages 60-69) are most likely to be threatened by hunger.
• Out of those seniors who face the threat of hunger, the majority have incomes above the poverty line and are white.
• From 2001 to 2012, the fraction of seniors experiencing the threat of hunger increased by 44%. The number of seniors rose by 98% which also reflects the growing population of seniors.
• Since the onset of the recession in 2007 until 2012, the number of seniors experiencing the threat of hunger has increased by 49%.
Read the full report, The State of Senior Hunger in America 2012: An Annual Report
Wednesday, May 21, 2014
On May 20, 2014, the United States District Court for the Middle District of Pennsylvania concluded that Pennsylvania's attempts to restrict marriages to "traditional" male-female relationships are unconstitutional. In Whitewood v. Wolf, Judge John E. Jones III began:
"Today, certain citizens of the Commonwealth of Pennsylvania are not guaranteed the right to marry the person they love. Nor does Pennsylvania recognize the marriages of other couples who have wed elsewhere. Hoping to end this injustice, eleven courageous lesbian and gay couples, one widow, and two teenage children of one of the aforesaid couples have come together as plaintiffs and asked this Court to declare that all Pennsylvanians have the right to marry the person of their choice and consequently, that the Commonwealth’s laws to the contrary are unconstitutional. We now join the twelve federal district courts across the country which, when confronted with these inequities in their own states, have concluded that all couples deserve equal dignity in the realm of civil marriage."
As in Windsor, the case decided by the U.S. Supreme Court in 2013, among the plaintiffs in the Pennsylvania case was the surviving partner of a long-time relationship. Maureen Hennessey was denied the rights of a "surviving spouse" after the death of her partner of 29 years from cancer.
News reports indicate that in Philadelphia on the same day as the decision, the Registrar's office immediately begain issuing marriage licenses, staying open an extra hour for that purpose.
Monday, May 19, 2014
Casey Kasem, Mickey Rooney, Brooke Astor. High profile, recent examples of tough times for aging individuals. For lawyers, their histories demonstrate the challenges of planning. Lawyers juggle tough questions about how to handle waning capacity and respect an individual's preferences, while recognizing the probable need for safety and quality care. Add to this the reality that family members are often involved directly and indirectly. We hope everyone agrees and is well intentioned, but, there are no guarantees.
Texas Elder Law Attorney Renee Lovelace has a very good article from a few years ago, using another high profile example of the challenges of planning. She writes about economist and statistician Mollie Orshansky who passed away in 2006 at the age of 91. Orshanky's name has been in the news again recently because of renewed discussion of the "poverty thresholds" she articulated in the 1960s and which are still used (probably irrationally) as a measurement tool for public benefits.
In her later years, Orshansky was at the center of a dispute about care that might be in her "best interest" but that also might be inconsistent with her expressed wishes. In "Working with Elder Clients Who Refuse Help," (Texas Bar Journal, February 2008, available as downloadable PDF from archives), Renee writes:
"But when Ms. Orshansky needed assistance, she rejected help from family. She was hospitalized, and the court, critical of the family for not preventing her decline, appointed a nonfamily guardian. The resulting saga included an interstate guardianship battle, allegations of family kidnapping, a riveting series of Washington Post articles and Senate Committee hearings. While Mollie's story may be movie-worthy, it is alarming to realize that she did everything that we suggest clients do to plan ahead — and her case still had a disastrous result."
Lovelace identifies several key points to keep in mind when helping clients to plan ahead, including the importance of "the talk" with family members. She discusses the possibility of building in monitoring options, while also recognizing the potential for even the best intentioned caretaker or agent to make mistakes. She talks realistically about the need for balance between "people, paper and money."
What are other techniques and approaches -- more than just documents and legal advice -- that seasoned lawyers use to avoid these kinds of disputes? Feel free to add your "comments."
Friday, May 16, 2014
As readers may have noticed, I've been a long-time "student" of Continuing Care Retirement Communities (CCRCs), drawn to the industry because of its vibrancy and dynamic approach to senior living. Along the way, I've come to know the many strengths -- and occasional weaknesses -- of individual operations, and the importance of resident engagement to long-range success. One of my resident contacts shared with me a new PBS NewsHour spotlight on university-connected CCRCs, with a prime focus on Oak Hammock, a community developed under the auspices of the University of Florida. Universities can offer a unique draw for alums and other college grads, including retired faculty, who value continued educational opportunities.
Here's the link to "Why More Seniors Are Going Back to College -- to Retire."
Although short (about 8 minutes), I find the piece to be balanced, especially in that it hints at the financing terms often needed to make such communities attractive and therefore viable. Some of the people interviewed explain the need for sophisticated mangement to counsel university-based programs, as development of CCRCs can be quite different than simply building a senior's version of "dorms." My own university stumbled a bit at the starting gate in its early efforts to get a community fully occupied, with the 2008 recession added to the challenges.
Thanks, Karen, for sending us the link!
Friday, May 9, 2014
Via the Korean Herald (op-ed piece):
After many twists and turns, the National Assembly has finally passed the controversial “basic pension” bill, enabling President Park Geun-hye to make good on one of her key election pledges.
The Assembly’s action on the bill was much belated but welcome. The legislation, which is expected to go into effect in July or August, will benefit the poorest 70 percent of Koreans aged 65 or older.
Specifically, about 4.5 million of the nation’s 6.4 million senior citizens will receive a monthly allowance of between 100,000 won and 200,000 won[about $100-200], depending on their income. Of the beneficiaries, about 90 percent will receive the maximum 200,000 won.
This scheme is not exactly the same as what Park promised on the campaign trail. During the election campaign, she promised to pay a uniform monthly allowance of 200,000 won to all citizens aged 65 or older, regardless of their income. But it was increasingly clear that Park’s universal pension plan was beyond the government’s financing capacity. So last September, the government decided to scale it back.
The basic pension scheme, even in its original form, is hardly sufficient to eliminate widespread poverty among senior citizens. Korea’s relative poverty rate among elderly people stands at 49.3 percent, the highest among OECD nations.
The April 2014 issue of the American Bar Association's Bifocal publication is now available. Current articles include:
- Will Your Health Care Advance Directive Be There When You Need It?
- A Guardian's Health Care Decision-Making Authority: Statutory Restrictions
- Palm Beach Guardianship Monitoring Program Offers Innovative Model
- Attorneys Representing Veterans: Opportunities and Challenges
- Don't Let Congress Go Another Year Without Funding the Elder Justice Act
By the way, while most Bifocal articles are written by practicing attorneys, American Univesity Washington College of Law student, Karna Sandler, is the author of the article on how state laws may affect a guardian's health care authority. Karna's an intern at the Commission on Law and Aging. Way to go, Karna!
In addtion, the issue provides details about AARP Foundation Scholarships to assist individuals in attending the 2014 National Aging and Law Conference to be held in Washington D.C. on October 16-17. Deadline for the scholarship applications is June 15, 2014.