Tuesday, April 29, 2014

Older Adults as Witnesses to Crimes: Should Age Be An Express Factor in Credibility?

The May 2014 issue of Series B (Psychological Sciences and Social Sciences) of the Journals of Gerontology includes three articles addressing a "relatively understudied area for the psychological science of aging: older adults interacting the legal system." An editorial introducing the articles explains (minus the footnotes): 

"In [this issue] the focus is on how aging affects what is known about cognition and eyewitness testimony.  The first article by West suggests that, based on cognitive aging alone, age differences do not contribute to worsened eyewitness accounts.  In fact, older adults may be less likely than young adults to interpolate details based on memory enhancement strategies.  The second article by Henkel, however, provides evidence that when negative feedback about memory is provided and also with misleading questions, changes in eye witness accounts are more likely for both age groups.  Among older adults, older ages were associated with lower accuracy and more changing of responses.  The third article by Dukala and Pocyzk adds the effects of an abrupt interviewing style, misleading questions, and negative feedback as factors associated with age differences in inaccurate eyewitness descriptions of what occurred, with older adults more vulnerable to changes rooted in suggestibility.  These effects were related to poorer memory rather than advanced age alone."

In his essay, Bob Knight, Ph.D. from University of Southern California, Davis School of Gerontology in Los Angeles, observes the range of results reported in the three articles demonstrates a need for "more work in this area." He concludes, "Care should be taken to make the legal system interviewers aware of potential distortions in eyewitness accounts due to memory changes that are more common in later life while also discouraging the stereotyping of all older adults as less reliable witnesses."

April 29, 2014 in Crimes, Current Affairs, Discrimination | Permalink | Comments (0) | TrackBack (0)

Monday, April 21, 2014

Potpourri: Recent "Elder Law" Articles from SSRN

Here's a sampling of recently published articles from the Social Science Research Network (SSRN) falling loosely under the heading of "Elder Law" as well as other classifications:

From our Law Prof Blogging colleague Gerry Beyer, "Who Said Learning Trusts & Estates Can't Be Fun?"  The abstract alone is inspiring for those of us who teach in this field:

"From even before their first day of law school, Texas Tech University School of Law students have the opportunity to appreciate the importance of the estate planning area and to understand that it can be both an enjoyable and rewarding area of law in which to practice. During orientation, which takes place the week before classes start, new students participate in full-day programs centered on a particular area of practice either of their own choosing or assigned by the administration. For the 2013 entering class, I was in charge of two full-day Estate Planning Tracks with a total of aproximately thirty-five entering students.



As their legal education continues, students have additional exposure, some mandatory and some optional, to estate planning topics. In my first year required Property course, I spend several days reviewing the basic principles of intestate succession and wills. Texas Tech then requires all students to complete a four-credit introductory course entitled Wills and Trusts as a condition of graduation during their second or third year. Students desiring a more sophisticated treatment may take courses such as Estate Planning, Texas Estate Administration, Guardianship, Estate and Gift Tax, Elder Law, and Marital Property. Students may also compete for a coveted position as an editor for the Estate Planning and Community Property Law Journal that Texas Tech publishes.



This Article reveals my basic teaching philosophy and the general pedagogical techniques I employ to make Trusts and Estates topics both fun and relevant. I will then share with you the specific tools I use when teaching the introductory course as well as the advanced courses such as Estate Planning and Texas Estate Administration. It is my hope that you may be able to gain insight from my approach to enhance your own teaching and the experience you provide to your students."

From Northern Illinois Law Librarian Sharon Nelson, a thoughtful bibliography of articles drawing lines between mistreatment of animals and the potential for family member abuse or neglect.  I have to say that I never thought about this connection before, but it does ring true for a possibly related phenomenon I observed when we were interviewing caregivers for an aging family member.  If candidates were nervous around our completely benign pooches, they rarely coped well with the not-so-benign family member.  Nelson sumarizes her article, titled "The Connection Between Animal Abuse and Family Violence:"

"This Selected Annotated Bibliography assembles legal and social literature that examines the link between domestic violence and animal abuse. Drawing from an ever-growing body of written works dedicated to the issue, the Bibliography presents the works that are most informative and useful to the legal community. These include case studies, current and proposed legislation, and social services guides that address the occurrence of and response to the animal cruelty-family violence correlation. In doing so, the Bibliography creates a resource that will prove helpful to a variety of legal practitioners, law makers, and professionals within the criminal justice system, and will serve as a tool to promote further understanding of the patterns of abuse that often concurrently victimize both humans and animals."

And from Canadian J.D. candidate Mathew Ponsford, an article about implications of advance care decision-making issues and legislation in Ottowa, "A Discussion of Conflict Resolution Processes Used in End-of-Life Care Disputes Between Families and Healthcare Providers in Canada."  The abstract begins:

"Conflict at the end-of-life, particularly between families and healthcare providers, involves many complex factors: differing opinions surrounding a patient’s prognosis, cultural differences, moral values and religious beliefs, associated costs, internal family dynamics, and of course, legal ramifications. Bill-52 (2013): An Act Respecting End-of-Life Care, introduced in Québec's National Assembly, will have far-reaching implications for healthcare decision-making for families, healthcare providers, religious groups, and others. Here, Bill-52 is used as the backdrop to examining the often neglected stories of disputes arising between families and healthcare providers, and the communication strategies, negotiation and mediation processes which result amidst an often stressful, costly, and time-consuming ordeal. Numerous conflict resolution processes are discussed, but the Consent and Capacity Board, regulated through Ontario's Health Care Consent Act (HCCA), is the primary focus. The importance of empathy and cultural understanding is also analyzed, as well as the challenges of cross-cultural conflict, including sensitivities toward Canada's First Nations peoples."

April 21, 2014 in Advance Directives/End-of-Life, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts | Permalink | Comments (0) | TrackBack (0)

Sunday, April 20, 2014

Is There an "Age War" Looming?

The title of a piece in the April 2014 issue of AARP Bulletin, "Dispatches from the Battle of the Ages," suggests that we're already in a battle between older and younger people, with the article detailing media reports about battlelines on jobs, funding for federal benefit programs, health care costs, and caregiving obligations. 

"Alarmists use ... statistics to paint a portrait of generational warfare.  But are they mounting that picture in the wrong frame?  To paraphrase a slogan from the 60's peace movement, 'Suppose they gave a generational war and nobody came?'"

The article suggests an interesting resource, Paul Taylor's book (released in March), The Next America. 

"Taylor [executive vice president of special projects at the Pew Research Center in Washington D.C.] and his Pew Colleagues conducted opinion surveys and pored over decades of demographic data.  Yes, there is a palpable anxiety about the lingering recession and long-term problems associated with entitlements, plus the runaway national debt.  Yet Taylor notes this anger transcends age barriers."

At times I do hear a strong resentment among students, both at the college level and in law school, and yet at the same time, I am also impressed by how many students choose to take courses and look for jobs in fields that will serve older adults.  Is there a "war" -- or is it more of a struggle to find firm footing on ground that is ever shifting? 

April 20, 2014 in Books, Current Affairs, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2014

FINRA Arbitration Awards Damages, But Also Attorneys' Fees Under California Elder Abuse Laws

An arbitral award in March 2014 by Financial Industry Regulatory Authority (FINRA) ordered Signator Investors, Inc., a firm aligned with the John Hancock Financial Network, to pay an older couple and their elderly mother's estate $1.2 million for losses arising from failed retirement investments inappropriately marketed to them by a Signator broker. The award to the claimants included "compensatory" damages plus interest, and ordered rescission of all the claimant's investments in Colonial Tidewater Realty Partners.  The award also granted Signator's cross-claim against its former broker, James Robert Glover, for breach of contract, fraud and negligence as potential indemnification on the damage award.

As is true with most arbitration awards, the ruling on Docket No. 13-00579 (available via search at the FINRA website) is "bare bones," providing little in the way of explanation about which legal theories support the outcome. A detailed explanation is unnecessary for FINRA arbitration rulings, which cannot be appealed. 

The claimants, a husband and wife (both 70+) and the husband's mother (who died in 2012 at the age of 103), reportedly invested their entire retirement savings through Glover, who put them into securities not held or offered by Glover's brokerage company.  This practice is sometimes described as "selling away." Signator's defense that Glover's actions were therefore outside the scope of his authority with their company and not subject to their control or responsibility to supervise was implicitly rejected by the FINRA arbitrators.  News reports indicate some 40 other pending complaints connected to Glover's actions. Glover was sanctioned personally by FINRA in March 2013.

FINRA, created in 2007,  is the successor to NASD, the National Association of Securities Dealers, the former enforcement operation for member brokerage firms and exchange markets regulated by the Securities and Exchange Commission.  A single arbitral award of $1+ million through FINRA is interesting by itself.  For example, for the entire year of 2013, FINRA ordered a total of $9.5 million in restitution to harmed investors. 

But what caught my attention was the additional award of $453,970 in attorneys' fees for the claimants against Signator, "pursuant to California elder abuse statutes." The amount of the fees appears to be roughly 40% of the damage award.  Most securities claims are handled by attorneys on a contingency fee arrangement and a fee of 40%  of the award is not unusual in this challenging field.  Thus, even a successful claimant before FINRA may not be made whole, absent a contractual or statutory basis to claim attorneys' fees.  So the award of compensatory damages and interest, plus attorneys fees' is significant. 

Unlike many states, California has a comprehensive provision for attorneys' fees connected to civil actions for abuse of elderly or dependent adults, at Cal. Welfare & Institutions Code Sections 15657-15657.8, including Section 15657.5 providing for attorneys' fees where it is proven by a preponderance of the evidence that a defendant is liable for "financial abuse."   

April 17, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Retirement | Permalink | Comments (0) | TrackBack (0)

Monday, April 14, 2014

Stanford Longevity Center's Design Challenge Winners Announced

Stanford's Center for Longevity announced the finalists and ultimate winners last week for their inaugural design challenge, with the top honors (and $10,000) going to  Sha Yao from the Academy of Art University in San Francisco  for her project “EatWell.” which involved the design of tableware specifically for people with Alzheimer's.  As explained in Stanford News:  

"For example, blue was chosen as the color of the insides of bowls because dementia sufferers can become confused when food and bowl have similar colors, according to Smith. As spills are common when bowls are tipped to get the final bits out, Yao designed a slanted bottom that eliminates the need to tip. The cups have low centers of gravity and are difficult to knock over."

Descriptions of all the finalists' projects were reported by National Public Radio here, along with a photo of the top winner's project. 

April 14, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Saturday, April 12, 2014

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, April 8, 2014

Update on Stanford Center on Longevity 2013-14 Design Challenge

Last September we noted the kick-off  of the Stanford Center on Longevity's world-wide Design Challenge that encouraged teams to tackle the need for "solutions that help keep people with cognitive impairments independent as long as possible."  In March, PBS News Hour had a nice piece on the partnership that launched the competition. 

The latest news is that 7 teams are finalists from among 52 entries from 15 countries. The final phase of the competition will take place on April 10.  As explained by Stanford's news release:

"They are coming to Stanford to make their final pitches for a $10,000 first prize and connections to industry leaders and investors. There will be talks by a number of distinguished speakers, a panel of Silicon Valley investors, and the announcement of next years’ challenge. Join us for what should be a great day of learning and networking."

Ticket information here. 

 

April 8, 2014 in Cognitive Impairment, Current Affairs, Housing, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, April 4, 2014

Florida Supreme Court Ruling Demonstrates More Dangers of DIY Will "Forms"

The Florida Supreme court ruled unanimously in Aldrich v Basile on March 27 that property acquired by a testator after execution of her will was not be controlled by the will, because although she had made bequests, the "E-Z Legal Form" she used did not include a residuary clause to address non-specific bequests.   Thus the after-acquired property passed by intestacy laws to family members not mentioned in the will.

The testator has used the "will form" to make specific bequests of several items of valuable property, including her house, vehicle and bank accounts (identified by numbers) to her sister, and provided that if her sister "dies before I do I leave all listed to" her brother.  The sister died first, leaving "Putnam County" property to the testator. Two nieces (children of a second brother, also deceased) asserted an interest in the probate action, arguing that "without any general devises and in the absence of a residuary clause," the will "contained no mechanism to dispose of the after-acquired property." They could recover under Florida's intestacy laws. 

The court also rejected consideration of a separate hand-written note by the testator as evidence of her "true" intent with regard to the after-acquired property to the named brother, because Florida's law requires "the same formalities" as a will for codicils.

In a separate concurring opinion, Justice Pariente pointed to the pre-printed will form, noting there was no "space to include a residuary clause or pre-printed language that would allow a testator to elect to use such a clause." Justice Pariente described the unfortunate decision by the testator to rely on a form, rather than hire a "knowledgeable lawyer," as an example of the "old adage 'penny-wise and pound-foolish:'"

"I therefore take this opportunity to highlight a cautionary tale of the  potential dangers of utilizing pre-printed forms and drafting a will without legal assistance.  As the case demonstrates, that decision can ultimately result in the frustration of the testator's intent, in addition to the payment of extensive attorney's fees -- the precise results the testator sought to avoid in the first place."

For another example of a "penny-wise and pound foolish" outcome from use of commercial estate planning "forms," see our October 2013 post on a Pennsylvania case, see "Do-It-Yourself Wills:  Penny Wise & Pound Foolish?"

 Thanks to Professor Laurel Terry for pointing to an ABA Journal Blog post on the Florida case.

 

April 4, 2014 in Current Affairs, Estates and Trusts, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, March 31, 2014

Downstream Consequences of Under-the-Table Pay for Elder Care

A few weeks ago, I posted the account of one family's struggle to find competent care for aging parents.  Eventually they were referred to a team of two women who did provide good care, but who insisted on being paid in cash.  I later learned that one person expected an additional "fee" for "managing" the arrangement.  The family felt trapped, although the crisis was cut short when the parent died. 

More recently, I read another family's story, where a non-family member provided proper senior care in exchange for "cash," and this time the arrangement lasted for several years.  Eventually, however, the cared-for-individual's savings were exhausted, and her increasing health needs meant a nursing home was inevitable.  But how to apply for Medicaid?  Any review of bank records that accompanies a Medicaid application would show large, regular cash withdrawals from the elder's accounts, totaling more than two hundred thousand dollars.  With no W-2s or other documentation of the use of that cash, would the state agency treat the transactions as gifts creating ineligibility for Medicaid?  Would an affidavit or testimony by a family member be enough to satisfy the agency?

A group of experienced attorneys brainstormed the options in this fact pattern and raised a host of additional practical questions, including why the family had not sought help from an attorney or accountant at the outset of the arrangement. I suspect part of the answer was the family was operating in "survival" mode -- trying to solve a crisis with temporary help -- and failing to realize the potential for it to become long-term.  In the meantime, their loved one bonded with the individual caregiver who either would not or could not be paid on the books.  One lawyer observed that this fact pattern demonstrates why "Elder Law" needs better visibility and understanding by the public, as elder law attorneys can help prevent this legal nightmare from occurring.

During the brainstorming, someone provided a useful link to "Risks of Hiring Caregivers Under the Table: Why It Can Be Dangerous...." by Melanie Haiken from Caring.com.

For more detailed guidance, IRS Publication 926, the Household Employer's Tax Guide, is remarkably straight forward, if still probably intimidating for the average person. 

March 31, 2014 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (1) | TrackBack (0)

Friday, March 28, 2014

Failure of Consideration and Promises to "Care for Grandma for the Rest of Her Life"

This semester I'm teaching Contracts, which always provides interesting opportunites to introduce "Elder Law" concerns in a traditional course.

This week I offered a not-so-hypothetical fact pattern, where Grandmother deeds house to Grandchild, in exchange for Grandchild's "promise to care for Grandma for the rest of her life."  Whenever I use this hypo, I pick one of a number of reasons the agreement does not work out as planned, such as the individuals don't get along with each other, grandchild gets pregnant or ill, etc.  This week's reason was "Grandma needs more specialized care" but cannot afford it because she's given away her primary resource. Grandchild doesn't want to sell the house, now that it is "hers," and she doesn't want to take out a mortgage. House

I ask the students to brainstorm Grandmother's options.  Almost always, someone suggests Medicaid, and we talk about whether Medicaid will provide adequate assistance and whether there are potential barriers to eligibility for public benefits, such as the five-year look back period. 

Students sometimes suggest Grandmother is subject to "undue influence," which if proven would be grounds for potential rescission.  Good job!  Except that I am usually careful in my hypo not to make Grandchild overtly manipulative.  And in truth, many of these arrangements begin more because of the desires of the aging individual, than because of any greed on the part of the younger person. We also explore "incapacity" and "duress" as possible grounds for rescission.

This week, students also suggested "failure of consideration" as grounds for rescission.  There is an interesting line of cases, perhaps a hybrid of Property and Contract law, that treats "support deeds" as a specific analysis, potentially justifying relief. Examples include:

  • Gilbert v. Rainey, 71 SW. 3d 66 (Ark. Ct. App. 2002), permitting mother to rescind deed for failure of consideration, and admitting mother's parol evidence to show daughter promised life care in exchange for the conveyance of the home, to show that conveyance was not a completed gift;
  • Frasher v. Frasher, 249 S.E. 2d 513 (W.Va. 1978), granting cancellation of deed from grandparents to grandchildren, on the grounds that where discord arises between the parties to a "support deed" between an aged grantor and a younger family member, the property should be restored "if it can be done without injustice" to the younger family member. 

After class was over, some of my students stopped by to chat, offering variations on the hypothetical, sometimes from examples within their own extended families.  In both of the sample cases above, the court attaches special meaning to the concept of "support deeds" going from older to younger generation, but most of the cases along this line are fairly old.  The fact that my students were offering modern variations on the fact pattern suggests there may be good reason to revisit this area of the law. 

Perhaps any resurgence in this topic is another sign of our "aging" times. So, that leads to my question, does your state recognize failure of consideration, tied to "support deeds," as grounds for rescission of a conveyance?

March 28, 2014 in Cognitive Impairment, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid | Permalink | Comments (2) | TrackBack (0)

Monday, March 24, 2014

ABA Webinar on Retirement Issues for Lawyers, Especially Young Lawyers

From January through March, the ABA Journal has run an interesting series of articles on retirement planning for lawyers, with clear messages for all age groups. Following that series, the ABA is hosting a live Webinar on "Retirement Expectations and Trends for 2014" on Wednesday, March 26.  The program is scheduled to begin at noon Eastern time.  The faculty, including Sally Hurme from AARP, Dean Deanell Reece Tacha from Pepperdine School of Law, and financial planning consultants, will

"...go beyond the basics of retirement and financnial planning to discuss other factors that can make your retirement what you want, including goal-setting; making the actual transition to retirement; determining whether a second or part-time post-retiremetn career is right for you; and dealing with the emotions of being retired.  Faculty will also provide guidance on the ethics of transitioning out of your practice, transitioning your clients, and selling your practice."

The 90 minute program is free for ABA members and $50 for the general public; no CLE credits are attached to the program.  Registration is here. 

March 24, 2014 in Current Affairs, Legal Practice/Practice Management, Retirement | Permalink | Comments (0) | TrackBack (0)

Friday, March 21, 2014

Updated: The Importance of Accountability to Residents of CCRCs

Paula Span, writing for the New York Times' column, The New Old Age, offers several perspectives on the Vi of Palo Alto lawsuit filed by residents at this high-end, California continuing care retirement community (CCRC). In her first piece, "CCRC Residents Ask, 'Where's the Money?'" she sets forth competing viewpoints of the parties:

Though their suit covers several matters, concern over eventual refunds is at heart of the battle. In their complaint, the plaintiffs call the transfer of money from the local provider to its Chicago parent company “upstreaming.”

 

Management calls it standard business practice. Entrance fee repayments come not from a reserve, but from the eventual resale of an apartment after a resident moves out or dies, said Paul Gordon, a lawyer for Vi. “Once I pay someone, I can’t tell them what to do with it afterwards,” he said. “It’s their money.”

 

“The payments are going to be made,” Mr. Gordon said. “The rest is eligible for distribution as a return on investment” — i.e., as profit.

 

That’s a different arrangement from what residents believe they signed up for. Because the Chicago company has not assumed the debt owed for eventual refunds, residents “lost all the security and peace of mind they had paid for,” Mr. McCarthy [the attorney for Vi plaintiffs] said.

In her second article released the next day,  Ms. Span takes a broader view than the single lawsuit involving Vi of Palo Alto, noting that "In Many States, Few Legal Rights for CCRC Residents," citing some of my work with states where resident-inspired changes are under consideration, and noting the important work of the National Continuing Care Residents Association, also known as NaCCRA.   

March 21, 2014 in Current Affairs, Federal Cases, Housing, Property Management | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2014

Turning Silver Into Gold?

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.   

March 3, 2014 in Consumer Information, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, February 27, 2014

Hilarity for Charity: Actor Seth Rogen Testifies on a Serious Subject

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. 

 

February 27, 2014 in Current Affairs, Dementia/Alzheimer’s | Permalink | Comments (0) | TrackBack (0)

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

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

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

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

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

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

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

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

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

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

Sunday, February 23, 2014

Challenging Days for Friends in Ukraine

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.    

February 23, 2014 in Current Affairs, Social Security | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 18, 2014

National Council on Aging Offers 5 Ways Congress Can Help Seniors

The National Council on Aging identifies five ways that Congress -- if it could get its act together -- can help seniors in 2014:

  1. 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;
  2. 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.
  3. 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.
  4. Introduce long-term care legislation -- that focuses on the very real needs for daily assistance (long term "services and supports") , beyond "mere" health care.
  5. Pass immigration reform -- necessary to provide the work force to cope with the predicted needs for care and assistance to aging boomers.

February 18, 2014 in Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Monday, February 17, 2014

Erudition on the Tenth Decade: Roger Angell

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! 

February 17, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, February 6, 2014

The Corner Drug Store: Ending Tobacco Sales and Increasing its Visibility as a Health Care Clinic

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? 

February 6, 2014 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 28, 2014

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

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

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

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

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

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

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