Monday, August 3, 2015

New Report: Intellectual & Developmental Disability & Dementia

The Administration for Community Living (ACL) has posted a new report on its website. The July 2015 report was prepared by RTI International  pursuant to a contract with ACL. The report is titled IDD and Dementia. The executive summary explains in part:

The National Plan to Address Alzheimer’s Disease (2014) calls for a coordinated effort to develop workforces in aging, public health, and intellectual and developmental disabilities that are dementia-capable and culturally-competent. In response to this directive, the U.S. Administration on Community Living presents the findings and resources in this white paper to community of providers who primarily serve older adults. It provides a broad overview of the services and support system for persons with intellectual and developmental disabilities (IDD) affected by dementia and their caregivers, examples of cross-network initiatives, and resources for improving dementia care across agencies and organizations that serve this population.

This white paper presents the current state of services and support system for persons with IDD who have dementia. There is recognition in the aging and IDD networks that states are in a transition period where the future of services will be more person-centered and focused on integration in the community (see Appendix A).

The report is divided into 9 sections with section 4 looking at screening, diagnosis and treatment; section 5 looking at services and financing; and section 6 looking at efforts to improve community-based services.  Section 7, the conclusion, includes a brief discussion of 5 issues:

  • Is dementia awareness education available to the IDD population and service providers?
  • Do the information and assistance services in both the aging and IDD networks identify those individuals with IDD and dementia and their caregivers who contact them?
  • Are persons with IDD and dementia being referred for appropriate diagnosis?
  • Are program eligibility and resource allocations taking into account the impact of cognitive disabilities on an aging population of persons with IDD?
  • Are the dementia-capable home and community-based services available to the general population capable of serving persons with IDD and dementia?

The report is available here.

August 3, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0)

Friday, July 31, 2015

Update on Family Caregivers

AARP''s Public Policy Institute has released a new report that provides an update on the topic of family caregivers. Valuing the Invaluable 2015 Update: Undeniable Progress, but Big Gaps Remain is 25 pages long and available as a pdf. As the introduction notes:

In 2013, about 40 million family caregivers in the United States provided an estimated 37 billion hours of care to an adult with limitations in daily activities. The estimated economic value of their unpaid contributions  was approximately$470 billion in 2013, up from an estimated $450 billion in 2009.

This report also explains the key challenges facing family caregivers…The report highlights the growing importance of family caregiving on the public policy agenda. It lists key policy developments for family caregivers since the last Valuing the Invaluable report was released in 2011. Finally, the report recommends ways to better recognize and explicitly support caregiving families through public policies, private sector initiatives, and research.

The report reviews progress in policies, programs and services at the federal and state levels since the previous report and makes over 20 policy recommendations in a number of categories.

To both address the growing care gap as the population ages and lessen the strain in the daily lives of caregiving families, more meaningful public policies and private sector initiatives are needed now. Better strategies will assist those who need care and their families struggling to find and afford the supportive services to live in their homes and communities—where they want to stay. It is essential to the well-being of our health care and LTSS systems, our economy, our workplaces, our families, and ourselves.

July 31, 2015 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Thursday, July 30, 2015

California Lawsuit Over Alzhemier's Research Reveals Core University Funding Battle

As detailed in new stories in Southern California media, an important suit by University of California San Diego (UCSD) against University of Southern California (USC) highlights a battle between public and private research enterprises.  Control over millions of dollars is stake for Alzheimer's-related research.  From the San Diego Union-Tribune in a Sunday feature article by Larry Gordon, Gary Robbins and Bradley Fikes:

In the lawsuit, U.C. San Diego alleges that USC, [Alzheimer's researcher Paul] Aisen and eight colleagues conspired to take research data involving more than 1,000 patients and other assets, including an estimated $100 million in federal and private funding to a new Alzheimer's study center in the San Diego Area.  Aisen and USC deny any wrongdoing and contend that UC San Diego is trying to inhibit the freedom to move jobs and is threatening the data's security.


A Superior Court judge in San Diego last week denied USC's request to block UC San Diego's access to that data.


Richard Seligman, the associate vice president for research administration at Caltech who has more than four decades of experience dealing with grants, said he had never heard of such a lawsuit even though competition for grants and noted faculty has gotten more fierce.

Stakeholders interested in the outcome of the research are reported to be taking note of the suit, with Mary Carrillo, the chief science officer for the Alzheimer's Association quoted as saying the association wants a "speedy resolution" of the lawsuit to keep research going forward. 

Left in an uncomfortable middle ground are the National Institutes of Health and its subsidiary National Institute on Aging, which provides about $11 million per year to the UC Alzheimer's Center.  While confirming that UC San Diego still holds that grant, officials at those agencies said they must approve whether funding like that stays put or moves to another school with a principal investigator like Aisen.

For additional background on the lawsuit, see a related Los Angeles Times piece here.  Reporters from the Los Angeles Times and the San Diego Union-Tribune have collaborated on these stories.

On Friday, July 24, a California trial court ruled that the key research data must be returned to UCSD and therefore does not go "with" the faculty member, Aisen, recruited away from San Diego by USC.  Details here. 

As further evidence of the battle for primacy in southern California medical research, USC and UCSD have each courted the La Jolla Institute for Allergy and Immunology, with University of California-San Diego energing as the winning suitor for "affiliation."  Details here

July 30, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Science, State Cases | Permalink | Comments (0)

Friday, July 24, 2015

Huguette Clark Family Foundation Announces Grant for Study of Elder Exploitation

From the ABA Bifocal, details about the 2015 award of a $50k grant by the Huguette Clark Family Fund for Protection of Elders to develop model civil statutes covering elder financial exploitation:

The project will be managed by the National Center for Victims of Crime under the guidance of Executive Director Mai Fernandez. Lori Stiegel of the American Bar Association Commission on Law and Aging will serve as a consultant on the project. Ms. Stiegel, a senior attorney, joined the ABA Commission in 1989 and has developed and directed its work on elder abuse.


“Creating a template of civil statutory provisions for elder financial exploitation is a short- term, innovative project that can have a lasting impact,” Ms. Fernandez said. “It can give attorneys an effective tool for pursuing civil cases and provide victims with the greatest chance to recover stolen assets. We welcome the support of the Huguette Clark Family Fund for Protection of Elders on this important project.”

The news release explains the donor-advised fund was established by the family in 2013 to honor the late Huguette Clark, "who was victimized by her caregivers for more than two decades."  Previous recipients of grants from the Huguette Clark Fund include San Diego State University and the Philadelphia Corporation on Aging.

July 24, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards | Permalink | Comments (0)

From SSRN: "Abuse of Elders with Mental Illness" by Prof. James T.R. Jones

Professor James T.R. Jones continues to bring his unique and important perspective to bear in his latest work available on SSRN.  In Abuse of Elders with Mental Illness: Generally an International and Specifically a United States Perspective, he highlights the ways in which various types of mental illness may contribute to unique vulnerability to abuse as the individuals age.  This is a chapter from a new book, International and Comparative Law on the Rights of Older Persons edited by Ralph Ruebner, Teresa Do and Amy Taylor published by Vandeplas Publishing in May 2015. From the SSRN abstract on Professor Jones' chapter:

Elder abuse is a major international problem, and scandal.  It is so important that both the United Nations (“UN”) and the World Health Organization (“WHO”) have focused on it.  Elder abuse occurs in a variety of ways.  It can be physical abuse due to either active injury or passive neglect.  It can be psychological abuse through fear and intimidation.  It can be financial abuse due to theft or fraud.  Abusers can be strangers; healthcare workers, too often in nursing home settings; and spouses, partners, children, grandchildren, or other relatives.  Abusers may be motivated by cruelty, laziness, or greed for quick profit or a premature inheritance.

While all elders can be abused, those with mental illness are particularly vulnerable.  This group can encompass both those with longstanding mental illnesses such as major depression, schizophrenia, and bipolar disorder and those psychiatrically debilitated by age, notably including those who suffer from Alzheimer’s disease or other forms of dementia.  Victims may be living in private residential settings both alone and with family or friends or in institutions such as nursing homes.

This chapter gives a brief overview of elder abuse and then focuses on the victim population of those vulnerable because of mental illness and how they face abuse.  It discusses possible ways to reduce the incidence of abuse of those with psychiatric conditions including, among other things, mandatory abuse reporting and enhanced focus on the problem by government, in particular law enforcement, authorities and primary care and mental health care providers.

The book is another important product from John Marshall Law's summer 2014 forum examining the rights of older persons, leading to the summer' "Chicago Declaration on the Rights of Older Persons" presented before the United Nations' working session on aging.   


July 24, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International | Permalink | Comments (0)

Tuesday, July 21, 2015

Book: One-Stop Guide to Dementia

A new book from the U.K. by June Andrews is titled Dementia: The One-Stop Guide, and it offers practical advice for families, professionals, and people living with dementia and Alzheimer's Disease. The Table of Contents suggests the scope:

  1. What is dementia?
  2. Getting a diagnosis
  3. Adjusting to the news: for carers
  4. Adjusting to the news: for people with dementia
  5. What are friends for?
  6. Managing care at home
  7. Disturbing Behaviours
  8. Your dementia-friendly home
  9. What you should expect from the social care system
  10. What you should expect from the NHS
  11. The dangers of a hospital admission and how to avoid them
  12. Some important legal issues
  13. What to look for in a care home
  14. Advice on complaints and sample letter

I wonder how Chapters  9 and 10 would be written from a U.S. perspective?


July 21, 2015 in Books, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, International | Permalink | Comments (0)

Monday, July 20, 2015

Register for Webinar: Living Alone with Dementia

The Administration for Community Living (ACL)/Administration on Aging (AoA) announced an upcoming webinar, People Who Live Alone with Dementia. The webinar is offered by the National Alzheimer’s and Dementia Resource Center (formerly the ADSSP National Resource Center). The website describes this July 30th webinar as follows:

 The webinar will focus on the issue of Persons Living Alone with Dementia. Participants will learn about prevalence and characteristics of people with dementia who live alone, signs of self-neglect and intervention strategies, and the experiences of people with dementia who live alone. Dr. Penny Harris and Dr. Michael Lepore will present at this webinar.

The webinar starts at 3 p.m. edt and lasts for one hour. To register for this free webinar, click here.

July 20, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Housing, Programs/CLEs, Webinars | Permalink | Comments (0)

Sexuality and Incapacity: A Forthcoming Article

Professor Alexander  Boni-Saenz at Chicago-Kent College of Law recently emailed me about his forthcoming article, Sexuality and Incapacity.  The article is posted to his SSRN page and will be published in volume 76 of the Ohio State Law Journal.   The abstract explains

Sexual incapacity doctrines are perhaps the most important form of sexual regulation, as they control access to sex by designating who is legally capable of consenting to sex. Most states have adopted sexual incapacity tests for adults that focus narrowly on assessing an individual’s cognitive abilities.  These tests serve an important protective function for people with temporary cognitive impairments, such as those rendered incapable due to alcohol or drugs.  However, this comes at the cost of barring many people with persistent cognitive impairments, such as Down Syndrome or Alzheimer’s Disease, from any sexual activity.  This is despite the fact that they still have sexual desires and are able to engage in sexual decision-making with support from caregiving networks.  The central claim of this Article is that sexual incapacity doctrine should grant legal capacity to adults with persistent cognitive impairments if they are embedded in an adequate decision-making support network.  In other words, the right to sexual expression should not be withheld due to cognitive impairment alone.  To justify this claim, the Article provides a theory of sexual incapacity doctrine that is grounded in the practice of supported decision-making and the normative foundations of sexual capability and relational autonomy.  The Article then sets forth a novel test for sexual consent capacity: cognition-plus.  This test focuses on gauging the capacity for volition, assessing the mental capacity of the individual to understand the nature and consequences of the sexual decision, and evaluating the adequacy of the decision-making support system using principles of fiduciary law.  The Article concludes by applying the cognition-plus test to the case of older adults with dementia, a group of increasing importance with the aging of the population.

A draft of the paper is available as a pdf from the SSRN page of  Professor Boni-Saenz.  Thanks to Professor Boni-Saenz for letting me know about his article!

July 20, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s | Permalink | Comments (0)

Tuesday, July 14, 2015

Podcast: Memory and Forgetting

Everyone has instances where inability to recall a name or face occurs and sometimes frightens us.  But, if you have a loved one with Alzheimer's, you may have experienced what I would call "advanced level" frustrations about memory.  Why does he (or she) remember one thing, but not another?  (For a long time, my father would spontaneously give answers to questions on Jeopardy, on topics he could no longer discuss 0r understand in conversation. Our family puzzled about whether there was a way to help him access positive memories, without putting pressure on him, in the same way Alex Trebek seemed to accomplish!) Are memories coded by importance? These kinds of questions guide an interesting discussion on a recent Radiolab episode on Memory and Forgetting, now available on podcast.

The experts interviewed, including the always interesting Dr. Elizabeth Loftus at University of California Irvine, and the studies described on this episode also document many reasons to be cautious about the significance of eye witness testimony in court cases.  Lawyers intimately rely on, or are confounded by, the ability to remember.    

July 14, 2015 in Cognitive Impairment, Dementia/Alzheimer’s | Permalink | Comments (0)

Thursday, July 9, 2015

If You Can't Beat Alzhemier's, Can You at Least Delay It?

In Alzheimer's Spurs the Fearful to Change Their Lives to Delay It, Washington Post writer Fredrick Kunklen details various ways that individuals and groups are working to buy more time from genetic profiles or family histories that suggest a greater likelihood of dementia: 

When Jamie Tyrone found out that she carries a gene that gives her a 91 percent chance of developing Alzheimer’s disease beginning around age 65, she sank into a depression so deep that at times she wanted to end her life.


Then she decided to fight back. She exercised. She changed her diet. She began taking nutritional supplements, including fish oil, vitamin D, vitamin B12, curcumin, turmeric and an antioxidant called CoQ10. She started meditating and working mind-bending puzzles, such as Brain HQ. She joined a health clinic whose regimen is shaped by a UCLA medical study on lifestyle changes that can reverse memory loss in people with symptoms of dementia. She started a nonprofit group, Beating Alzheimer’s By Embracing Science (BABES), to raise money and awareness about dementia.


“I found my voice,” said Tyrone, 54, a registered nurse who lives in San Diego.

Here is the link to "BABES" for those who want to read more about that group.

July 9, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Science, Statistics | Permalink | Comments (0)

Tuesday, July 7, 2015

NYT: Starting Your Own "Conversation Project" With Family

Many have written with great sensitivity and candor about attending the death of a loved one, including a parent.  Ellen Goodman had a lovely op-ed recently, How to Talk About Dying, in the New York Times.  But more important even than her personal journey with her own parents, was how she and others have used their mutual  experiences and concerns to start The Conversation Project. 

As background, Ms. Goodman writes:   

When my mother died from heart failure and dementia, I began to talk with others. It was extraordinary. Everyone seemed to have a piercing memory of a good death or a hard death. Some of these stories had been kept below the surface for decades, and yet were as deep and vivid as if they’d just happened.


Too many people we love had not died in the way they would choose. Too many survivors were left feeling depressed, guilty, uncertain whether they’d done the right thing.

With these experiences in common, Ms. Goodman and others established a nonprofit and a website, and they offer a "Conversation Starter Kit" for how to begin -- and continue -- thinking about what you want and how to share personal values and choices with family members.  The kit is free, downloadable, and you can take notes and tailor the plan easily. 

Many of my own friends and working colleagues have stories to share about "end of life" decisions with their parents. (Perhaps because I teach and write about aging, I get more than the average number of opportunities to hear from a lot of people about how well things are going on the homefront....) It seems like a "conversation about the conversation," shared among friendship groups, or workout-groups, or workplace groups, might facilitate using the starter kit and working on the more personal family conversations. 

Thanks to Professor Laurel Terry for sharing these links! 

July 7, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues | Permalink | Comments (0)

Monday, June 29, 2015

California Court Says Law Permitting Nursing Homes to "Make Routine Decisions for Incapacitated Residents" Is Unconstitutional

On June 24, 2015, the Superior Court for the State of California, County of Alameda, Judge Evelio Grillo presiding, issued a mandamus in a court suit filed in 2013 by California Advocates for Nursing Home Reform (CANHR).  Lots of interesting and important issues here, including:

  • the finding that CANHR, a nonprofit agency "dedicated to improving the quality of care for California's nursing home residents," has standing to bring a citizen action to challenge the reliance by nursing homes on California law to permit them to make decisions "for" incapacitated residents who do not have court appointed agents, family or other surrogate decision makers;
  • the conclusion that the California law in question, Calif. Health & Safety Code Section 1418.8,  is unconstitutional, both facially and as applied;
  • the recognition that the mandate is necessary, even though it will require major changes in how care facilities operate in the daily care of patients.

The 44 page opinion concludes:

"The court is aware that this statute was the Legislature's attempt to deal with a very difficult and significant problem of how to provide timely and effective medical treatment to patients in skilled nursing facilities without delays that were often happening when a petition had to be filed in probate court.  The court acknowledges that this order will likely create problems in how many skilled nursing facilities currently operate....  The court has considered this burden and weighed it against the due process concerns, and finds that the due process rights of these patients is more compelling.  The stakes are simply too high to hold otherwise. Any error in these situations has the possibility of depriving a patient of his or her right to make medical decisions about his or her own life that may result in significant consequences, including death.  A patient may not only lose the ability to make his or her health decisions, but also to manage his or her own finances, determine his or her visitors, and the ability to leave the facility."  

Congratulations to the hard-working advocates at CANHR, and particularly to Golden Gate Law Professor Mort P. Cohen,  who brought the action on behalf of CNHR and several nursing home residents.  Here is a link to the full opinion in CANHR v. Chapman, Case No. RG13700100. Here is a press release from CANHR.

June 29, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink

Friday, June 26, 2015

Florida Appellate Court Reverses Conviction on Financial Exploitation of Elder

On June 24, 2015, a Florida intermediate appellate court reversed the 2013 conviction of Tyrone Javallena for "financial exploitation of an elderly person or disabled adult," ruling that there was no evidence the defendant in question, who was the husband of a financial advisor for a 94-year-old woman who made late-in-life changes to her estate plan benefitting the couple, had the requisite knowledge of any plan to exploit.  In Javallena v. State, the 4th DCA ruled:

The [elderly woman's estate] documents were amended so that, ultimately, the defendant and his wife were residual beneficiaries of the estate. The defendant and his wife served as witnesses to Teris' execution of some of the amendments, and at some point in time, his wife became aware of the substance of the amendments. However, there was no evidence that the defendant, who also chauffeured Teris on errands, had any knowledge of a plan to exploit the victim. As for Teris' mental capacity at the time she executed the amendments to her estate documents, there was conflicting evidence before the jury.


On appeal, the defendant argues that his conviction under a principals theory constituted error as there was no evidence he participated in the exploitation. We agree.


"To convict under a principals theory, the State is required to prove that the defendant had a conscious intent that the criminal act be done and . . . the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime."Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012) (citation and internal quotation marks omitted).

The original conviction of Javallena and his wife in 2013 was high profile news, in part because of the estate in question -- referred to in the appellate opinion as "vast" -- was reported to be $10 million.  No word on the status of any appeal on the separate conviction of Javallena's wife. 

June 26, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, June 24, 2015

Husband's "Constant Kissing" of Wife in Care Home Leads to Court

One of our readers in England sent an item from The Independent, about a dispute between a husband and a publically-operated care home where his wife lives:

An 87-year-old man is taking Derby City Council to court after being told he must stop "constantly" kissing his wife, who has dementia, in order to continue visiting. Thomas Middleton said he has "lost the will to live" after care home staff told him to stop "constantly" kissing his wife Joan, 84, when he visits.


Mr Middleton has been made to sign an eight-point agreement to continue seeing her, which says he can only kiss his wife of 67 years once on arrival and once on departure. Mr Middleton’s daily two-hour visits are supervised by staff after a court in 2012 ruled that his wife lacked the capacity to make decisions on her needs.


The rules came after a review claimed he was "constantly kissing, pulling and poking his wife, which she protests about." The review also said Mr Middleton became "nastier and nastier" if she did not respond to him. Care home staff reported feeling intimidated by Mr Middleton, while there were also concerns that he would not return his wife if she were allowed a visit home.


Mr Middleton disputes this criticism as inaccurate: "I’ve done nothing to my wife. I love her so much. I don’t want to leave her."

In sending us this piece, our reader commented about the troubling fact that this matter has degenerated to the point where parties are going to court, noting the similarity in theme with the Rayhons case in Iowa. 

June 24, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, International | Permalink | Comments (1)

Friday, June 19, 2015

Symposium Issue Responds to Hartog's "Someday All This Will Be Yours"

The Spring 2015 issue of the ABA publication Law & Social Inquiry has a great symposium review section offering a broad array of essays, commenting on Hendrik Hartog's important book Someday All this Will Be Yours: A History of Inheritance and Old Age (Harvard University Press: 2012). 

The impressive list of contributors includes:

Plus, historian Hendrik Hartog provides his own commentary and response! 

Suffice it to say if you appreciated Hartog's book, you will thoroughly enjoy his additional musings on how he came to write it and what it might mean for the future. 

The comments are engaging and relatively brief -- but should still keep you busy on a summer weekend.

June 19, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Wednesday, June 17, 2015

California Clarifies Nature of "Takings" Actionable Under Elder Abuse Law

In 2014, the California Court of Appeal issued a decision recognizing broad application of California's Elder Abuse laws to contract-related disputes.  In Bounds v. Superior Court, the appellate court set the stage for the important ruling:

Bounds, an 88–year–old widow allegedly suffering from Alzheimer's disease, alleges in her cross-complaint that for approximately six months, Real Parties in Interest Gerry Mayer (Mayer), Joseph Sojka (Sojka), and their associated businesses entities (KMA Group, LLC, Kopykake Enterprises, and Sojka–Nikkel Commercial Realty Group) engaged in abusive conduct, resulting in her signing, among other documents, escrow instructions authorizing the sale of real property owned by the Trust. Because escrow was cancelled, the Trust retains title to, and Bounds remains in possession of, the property. However, petitioners allege that the existence of the escrow instructions significantly impairs their right to sell the property at fair market value or to use it to secure a loan on favorable terms.
These alleged facts raise an issue of first impression: whether to allege a “taking” of a property right under the [California Elder Abuse] Act, it is sufficient to plead that an elder has entered into an unconsummated agreement which, in effect, significantly impairs the value of the elder's property, or whether the Act requires that the agreement have been performed and title have been conveyed.....
As explained more fully below, we conclude that because property rights include, among other things, the right to use and sell property ... petitioners' allegations that Bounds entered into an executor agreement which significantly impaired the value of the property owned by the Trust adequately pleads a "taking" -- that is, adequately pleads that Bounds has been "deprived of [a] property right .... by means of an agreement," within the meaning of [California law] section 15610.30(c). 
Therefore the appellate court permitted the case to go forward against the alleged abusers, who were alleged to have frightened the aging Bounds into selling property at a bargain price.
More recently, Sara Colon, one of the lawyers represented the elderly Ms. Bounds, and Catherine Eschbach, a law student at Pepperdine Law School, collaborated on an article for the Los Angeles Lawyer magazine, published in April 2015.  In Out of Bounds, they explain the significance of the Bounds case, including its application in the context of predatory lending schemes. 

June 17, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, June 10, 2015

A Time for Heart to Heart Conversations With Family and Caregivers

An essay I read when it was first published in the New York Times Magazine in 2010, "What Broke My Father's Heart," has stayed with me.  It is the deeply personal tale of a journalist-daughter's observation of her father's last years, as his pacemaker kept his heart pumping while dementia destroyed his quality of life.  The daughter, Katy Butler, later turned the story, supplemented by impressive research, into a book, Knocking on Heaven's Door: The Path to a Better Way of Death. 

In the essay, one of the key moments in the chronology was when Katy's father faced the prospect of surgery for a painful inguinal hernia, which doctors were not willing to perform unless his weak heart was first aided by implementation of a pacemaker.  Earlier, his father, while still competent, had rejected a pacemaker, but the decision was now in the hands of his wife because of his dementia:

"When [Dr.] Rogan suggested the pacemaker for the second time, my father was too stroke-damaged to discuss, and perhaps even to weigh, his trade­offs. The decision fell to my mother — anxious to relieve my father’s pain, exhausted with caregiving, deferential to doctors and no expert on high-tech medicine. She said yes. One of the most important medical decisions of my father’s life was over in minutes."

Ms. Butler makes it pretty clear that if the decision had been hers alone, she would not have made the same choice as her mother.  Additional research demonstrates the medical, moral and legal dilemmas faced by all parties in considering the use of pacemakers for the elderly.  For example, in "Pacing Extremely Old Patients: Who decides -- the doctor, the patient, or the relatives?," two physicians in the U.K. report on a three-case study where individuals, family members and doctors were not in agreement about implantation of pacemakers for patients aged 101, 90, and 87.

Continue reading

June 10, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Medicare | Permalink | Comments (2)

Wednesday, June 3, 2015

Does 8th Amendment Bar Execution of Murderer Who Develops Advanced Dementia After Conviction?

On March 17, 2015, Missouri executed "convicted cop killer Cecil Clayton."  Clayton's prosecution was a matter of much legal commentary from the very outset of his arrest and prosecution in the 1990s, because of the documented history of removal of 1/5 of the frontal lobe of his brain following a sawmill accident in the 1970s. 

However, as his prosecution, appeals, and post-conviction challenges wended their way through state and federal courts on issues of effective assistance of counsel, insanity and mental defect, an additional cognitive impairment was underway.  By the time of his execution Clayton was reported to be Missouri's "oldest death row prisoner" at age 74 and at least five years before his last day, he had been diagnosed with progressive, neurological deterioration, consistent with "dementia."

The last court to consider the Clayton's last (and last minute) challenges to the death penalty, the United States District Court for the Western District of Missouri, wrote on the same day as his execution:

Should the Atkins [v. Virginia, 536 U.S. 304 (2002)] reasoning be applied, by analogy, to cases involving persons with physical brain damage and progressive deterioration, and an Atkins-like evaluation performed to determine whether the death penalty may be properly imposed? It seems fair to analogize the diminished capacity of the mentally retarded that lessens personal culpability and prohibits execution of the mentally those whose physical brain damage and progressive deterioration have, for example, lessened their capacity to meaningfully participate in legal proceedings. Using a different analogy, it would be difficult to imagine, for example, that a civilized society would execute a person who was not mentally retarded at the time of the commission of a capital crime, but who subsequently developed advanced  Alzheimer's disease by the time of the execution.

Ultimately, the court ruled that no relief was available to Clayton on the record before it, but the court clearly was concerned about the potential for evidence of post-conviction dementia to establish independent grounds for a valid 8th Amendment challenge.  The court concluded:

Again, at this very late date, the question of whether the death penalty can be imposed against a person such as Clayton with physical brain damage—a hole in his frontal lobe—associated with progressive deterioration over time, has not been litigated here, and it may be too late. In the time available, the Court cannot conclude under the deferential AEDPA standard that the Missouri Supreme Court's decision should be disturbed.

For more on the litigation history of Clayton's mental impairment(s), see Clayton v. Al Luebbers, 2015 WL 1208786 (W.D. Mo., May 17, 2015).

June 3, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, State Cases | Permalink | Comments (0) | TrackBack (0)

Saturday, May 30, 2015

Alzheimer's Activist Confronts Challenges of His Disease

The Washington Post recently profiled Alzheimer's activist Michael Ellenbogen, including the possibility that the very disease he's urging public authorities to confront by committing to find a cure, has impaired his ability to use sound judgment about his tactics:

When Michael Ellenbogen calls for a more aggressive fight against Alzheimer’s disease, he speaks with passion that comes from experience. As someone who was diagnosed with early-onset dementia, Ellenbogen can convey firsthand the pain and frustration at what he sees as insufficient government support for research to find a cure or better treatments.


But to some, Ellenbogen’s passion recently went too far.


After he submitted remarks to the national Advisory Council on Alzheimer’s Research, Care and Services that mentioned the Columbine massacre — asking whether it would require a mass shooting by someone with dementia to draw more attention to the crisis — the Department of Health and Human Services deemed Ellenbogen a security threat. The federal agency, which hosts the council’s meetings, banned him from its premises.

For the full story, see Frederick Kunkle's article More People with Alzhemier's Are Becoming Activists -- Which Brings Its Own Challenges.

May 30, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Thursday, May 28, 2015

Can You Get A Divorce if You Have Dementia? That's the $10M Question in South Florida

From our roving reporter (okay, actually from my great Dickinson Law colleague, Professor Laurel Terry) we get headline news in Palm Beach, Florida and a front-page question about whether an older man has the capacity necessary under that state's "unique" law to seek an end to his later-in-life second marriage.  You won't be surprised to read that money is involved in this lawsuit: 

Sitting in his oceanfront condominium in Palm Beach, [87-year old] Martin Zelman can’t immediately name the president of the United States, isn’t sure what year it is and admits he can’t remember the month or the date of Valentine's Day. But he knows he wants to divorce his wife [age 80], whom he married in 2000, 7 years after they began dating.


Or does he?  That's the $10 million dollar question that surrounds Zelman vs. Zelman, a unique and legally complex divorce case wending its way through Palm Beach County Circuit Court.


While the issues raised are intensely personal, they lay bare the ways adult children could use the court system to manipulate prenuptial agreements designed to protect spouses in second marriages. They also expose quirks in Florida's divorce laws, particularly a little known caveat that imposes a three-year waiting period in cases where one of the spouses has been declared mentally unfit.

For more, see Can Florida Man with Dementia File for Divorce? by Jane Musgrave for the Palm Beach Post. This story brings to mind regular reader Jennifer Young's recent, wry comment on a separate post, strongly recommending "shacking up" to avoid late-in-life second guessing of second marriages.  All kind of sad, isn't it?

May 28, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)