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.
Monday, May 5, 2014
In an article for the May issue of the Journal of Gerontology (Series B: Psychological Sciences), a team of international researchers present a report on "Benefits of Having Friends in Older Ages: Different Effects of Informal Social Activities on Well-Being in Middle-Aged and Older Adults." The article is technical, but the implications and conclusions of their research are persuasive. It seems that having "friends" is more important to life satisfaction for older adults than it is for middle-aged adults. And their research points to the importance of friendships rather than "just" relationships with spouses and children. The authors conclude:
"Our results have strong implications for mental health promotion in older adults, as they suggest supporting older adults in building and maintaining friend-based social networks, for example, by encouraging volunteering in old age in elder-helping-elder programs . . . or programs aiming at increasing informal social interactions, such as cultural programs, . . . university programs, . . . or occupational therapy programs."
I suspect that one potential limitation of the study may be the difficulty in measuring whether a lowered feeling of "life satisfaction" is actually a trigger for withdrawal from friends and friendship-based activities, rather than being simply an outcome of not being engaged with friends. The "chicken or egg" question of cause and effect? Nonetheless, the research does underscore the potential importance of engagement in increasing the long-range potential for positive feelings and mood. So call up your friends and invite them on an outing; don't wait for them to call you.
Wednesday, April 30, 2014
I have several "go to" experts I seek out for tough questions, tough client problems, or not-so-tough students who want a real world experience. One of my favorite experts is Marielle Hazen and it is great to see her honored by the National Academy of Elder Law Attorneys (NAELA), in recognition of her leadership and community service as an attorney representing older people, people with special needs, and their families.
Congratulations, Marielle, on receiving the 2014 Powley Community Service Award for Advocacy in Elder Law. Very much deserved!
Tuesday, April 29, 2014
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."
Monday, April 21, 2014
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."
Sunday, April 20, 2014
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?
Thursday, April 17, 2014
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."
Monday, April 14, 2014
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.
Saturday, April 12, 2014
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.
Tuesday, April 8, 2014
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."
Friday, April 4, 2014
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.
Monday, March 31, 2014
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.