Monday, July 28, 2014
Recently a former law student who is considering a career change asked me about elder law, wanting to meet with me to discuss what is involved. I'm happy to chat any time with current and former students, especially about elder law, but this time my advice was simple: "Drop everything and go to Pennsylvania's 2014 Elder Law Institute." Indeed, this year saw some 400 individuals attend.
Important to my advice was the fact that ELI is organized well for both "newbies" and more experienced practitioners. After the first two-hour joint session, over the course of two days there are four sessions offered every hour. One entire track is devoted to "Just the Basics" and is perfect for the aspiring elder law attorney. Indeed, I usually sponsor two Penn State law students to attend. As in most specializations, in elder law there will is a steep learning curve just to understand the basic jargon, and the more exposure the better.
One of my favorite sessions is the first, "The Year in Review," a long tradition at ELI and currently presented by Marielle Hazen and Rob Clofine. Marielle reviews new legislation and regulations, both at the state and federal level, while Rob does a "Top Ten Cases" review. Both speakers focus not just on what happened in the last 12 months, but what could or should happen in the future. They frequently pose important policy perspectives, based on recent events.
Among the highlights from the year in review session:
- Analysis of the GAO Report on "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage" released in late June 2014. Data collection efforts focused on four states and reportedly included "under cover" individuals posing as potential applicants. The report summarizes techniques used to reduce countable resources, most occuring well within the rules and thus triggering no question of penalty periods. Whether Congress uses the report in any way to confirm or change existing rules remains to be seen.
- A GAO Report on Medicaid Managed Care programs, also released in June, concluding that additional oversight efforts are needed to ensure the integrity of programs in the states, which are already reporting higher increases in outgoing funds than fee-for-service programs.
- The need to keep an eye open for Pennsylvania's Long Term Care Comission report, expected by December 2014. Will it take issue with the Governor's rejection of the Affordable Care Act's funding for expansion of Medicaid?
- Report on a number of lower court decisions involving nursing home payment issues, including a report on a troubling case, Estate of Parker, 4 Pa. Fiduciary Reporter 3d 183 (Orphans' Court, Montgomery County, PA 2014), in which a court-appointed guardian of the estate of an elderly nursing home patient "agreed" to entry of a judgment, not just for nursing home charges, but also for pre- and post-judgment interest, plus attorneys' fees for the nursing home's lawyer of almost 20% of the stipulated judgment, in what was an uncontested guardianship.
In light of the number of nursing home payment cases in Rob's review, perhaps it wasn't a surprise that my co-presenter, Stanley Vasiliadis, and I had a full house for our session on "Why Am I Being Sued for My Parents' Nursing Home Bill?" We examined how adult children (and sometimes elderly parents of adult children in care) are finding themselves the target of collection efforts by nursing homes, including actions based on theories of breach of promise (contract, quatum meruit, and promissory estoppel), fault (common law fraud or statutory claims of "fraudulent transfers), or family status, such as statutory filial support.
The extensive course materials from all of the presenters, both in hard copy and electronic formats, are available for purchase directly from the Pennsylvania Bar Institute.
July 28, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, July 23, 2014
Atlanta attorney Kristen M. Lewis has a very interesting article in the July/August issue of the ABA's publication Probate & Property. In "The Crime of the 21st Century: Financial Abuse of Elders," Lewis brings to bear her experience in estate planning and wealth protection, including use of special needs trusts, to examine examples of elder financial abuse, for which she coins the acronym "EFA."
While I wish Lewis had included more citations of authority to support observations regarding prevalence of financial abuse, what I find unique about the article is the discussion of "defensive use" of powers of attorney and revocable living trusts. She advocates careful drafting of powers for individuals serving in these fiduciary roles and to consider the use of co-agents or co-trustees. Their roles may be limited but can expressly include "oversight."
On a related concern, in my experience POAs are often silent on the issue of compensation for agents, thus opening a door to confusion or worse about an agent's "self-payment." In contrast, Lewis recommends that POAs
"... should outline whether and how the agent is to be compensated for services while acting as agent (for example, hourly at a specified rate or a fee based on the value of the assets under management). Fairly compensating an agent can encourage him to be more honest, attentive, and diligent in the exercise of his duties."
For revocable living trusts (RLTs), she advises "it is imperative to identify a lineup of disinterested trustees, persons who have no interest in the assets remaining in the RLT on the elder's death." Further, she observes that increasingly, "attorneys specializing in estate planning or elder law are agreeing to serve as trustee for their clients' RLTs, or as co-trustee with a corporate fiduciary. Such professionals are typically compensated based on the regular hourly rate they would otherwise charge their clients." I suspect Lewis is thinking about trusts with substantial assets.
The full article is currently available only in hard copy, but American Bar Association magazines are usually eventually posted at the ABA website, and the website for the Real Property, Trust and Estate Law Section of the ABA is here.
Sunday, July 20, 2014
The growing significance and scope of "elder law" is demonstrated by the program for the upcoming 2014 Elder Law Institute in Philadelphia, Pennsylvania, to be held on July 24-25. In addition to key updates on Medicare, Medicaid, Veterans and Social Security law, plus updates on the very recent changes to Pennsylvania law affecting powers of attorney, here are a few highlights from the multi-track sessions (48 in number!):
- Nationally recognized elder law practitioner, Nell Graham Sale (from one of my other "home" states, New Mexico!) will present on planning and tax implications of trusts, including special needs trusts;
- North Carolina elder law expert Bob Mason will offer limited enrollment sessions on drafting irrevocable trusts;
- We'll hear the latest on representing same-sex couples following Pennsylvania's recent court decision that struck down the state's ban on same-sex marriages;
- Julian Gray, Pittsburgh attorney and outgoing chair of the Pennsylvania Bar's Elder Law Section will present on "firearm laws and gun trusts." By coincidence, I've had two people this week ask me about what happens when you "inherit" guns.
Be there or be square! (Who said that first, anyway?)
July 20, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 15, 2014
Representatives from some 16 countries participated in the 2014 International Elder Law and Policy Conference at John Marshall Law School on July 10-11. There was impressive participation -- especially given the distances for travel to attend the short and intense conference -- by faculty members from Australia, including Dean Wendy Lacey from the University of South Australia School of Law, Associate Dean Meredith Blake from the University of Western Australia School of Law, Lisa Barry from Macquarie University Law School in Australia, and Eileen Webb from the University of Western Australia School of Law.
I learned that there is a strong research network on law and ageing topics in Australia, ARNLA. Many of the issues they are addressing mirror issues recognized elsewhere in the world, even as the laws and standards may differ between the countries. Several of the Australian participants reported on recent research or works in progress.
For example, Meredith Blake addressed the challenge of using advance directives to honor the directions or wishes of a principal after the individual develops dementia. She pointed out that unlike some U.S. states that require agents to follow the principal's known wishes or directions, in Queensland the use of a "best interest" standard for agents acting under health care directives may frustrate the wishes of the principal. Using a detailed and realistic hypothetical to illustrate concerns, Professor Blake urged adoption of a more flexible approach.
Eileen Webb's presentation focused on how property law concepts in Australia may help or hinder efforts to respond to instances of potential financial abuse, as where an older individual allows or directs transfer of property interests to other family members or unrelated individuals "without adequate protection or for consideration which is illusory."
Professor Webb introduced me to a new but useful label,"family accommodation arrangements," which she reported was one of the most frequent sources of concern for elder abuse in Victoria. I was particularly impressed by graphs she created to illustrate and organize potentially applicable legal theories, including fraud, undue influence, estoppel, failed joint ventures, common intention and contributions to purchase price for third parties. The theory of law used to pursue a claim may affect the relief available. Professor Webb urged adoption of specific legislation in Australia to better address the potential for abuse through property transfers.
Monday, July 14, 2014
Professional guardians have become important players in the world of adult and elder care. As the need has grown, so have efforts to establish standards or oversight mechanisms. The Center for Guardianship Certification (CGC), for example, offers a national certification process that requires applicants to pass a test, meet minimum eligibility requirements, pay a fee, and make attestations about their background. As reported recently by Sally Hurme for the ABA's Commission on Law and Aging, "as of April 2013, CGC had approved over 1,600 National Certified Guardians and 65 National Master Guardians throughout the country."
Some states have required professional guardians (as opposed to family member or similar one-time guardians) to obtain CGC certification or have adopted state-specific certification standards. In some states, such as Texas and Washington, certification combines with a state entity to receive and evaluate complaints about professional guardians, combined with a disciplinary process. Such disciplinary boards are usually treated as a supplemental option, rather than as a substitution for court reviews, where parties seek review of a guardian's performance.
Having the power to affect the career of a guardian, disciplinary boards for professional guardians have generated questions about procedural fairness. In a recent decision by the Washington Supreme Court, the court was called upon to review the procedural fairness of anctions imposed by the Washington's Certified Professional Guardian Board. At the heart of the challenge was the defendant's allegations of bias against her by an influential member of the Board, someone with whom she had previously served on the Board, and further asserting that the hearing officer had a financial interest in the outcome of the disciplinary proceedings, because of desire to continue his paid role for the Board.
The allegations against the defendant, who had more than 10 years of experience as a certified guardian and who maintained an active caseload of more than 60 guardianships, focused on her role as guardian for an elderly woman and for a disabled younger adult. She was alleged to have failed to assist in timely purchase of new glasses for the elderly woman with dementia, and to consult regarding movement of the younger adult to a hospice facility. The defendant contended that all actions taken by her were appropriate and consistent with the discretion accorded her under a "substitute judgment" standard.
In its July 3, 2014 decision in The Matter of Disciplinary Proceedings against Lori A. Petersen, the Washington Supreme Court, sitting en banc, rejected the defendant's arguments about a "personal vendetta" against her, upheld the findings and conclusions regarding defendant's alleged violation of state guardianship standards in serving the two wards, and rejected the defendant's arguments about procedural unfairness.
Nonetheless, the Washington Supreme Court ruled that "[b]ecause this is a case of first impression and the Board aspires to consistency with disciplinary sanctions, we remand to the Board to consider whether the sanctions sought against [the defendant], including the monetary fees, are consistent with those imposed in other cases." The Court questioned the imposition of a one year suspension from practice and more than $30,000 in costs and fees, stating its belief that the "circumstances of this case and the severity of the sanctions and fees in light of the charges brought by Petersen warrant an explicit proportionality inquiry."
In 2010, a Seattle Times news article raised questions about the oversight role of the Washington board, reporting that in "five years, the board has taken action against seven guardians or guardian companies. One lost certification. The others negotiated deals in which they promised not to break the rules. Some agreed to additional monitoring."
In the Petersen case, the Washington Academy of Elder Law Attorneys (through Rajiv Nagaich, Esq.) submitted an amicus brief, challenging the procedural fairness of proceedings against professional guardians in Washington.
For additional thoughts about oversight of guardians, see "A Call for Standards: An Overview of the Current Status and Need for Guardian Standards of Conduct and Codes of Ethics," by University of Washington Law Professor Karen Boxx and Texas attorney and former executive director for the National Guardianship Association, Terry W. Hammond.
Thursday, July 10, 2014
One of the effects of "devolution" in the United Kingdom has been opportunities for Northern Ireland, Wales and Scotland to consider afresh their domestic laws and policy guidelines, separate from the mandates of Parliament in London. As those following recent UK news will know, Scotland this has gone beyond mere "home rule." A referendum vote on full independence is scheduled in Scotland for September 18, 2014.
Northern Ireland has not moved as quickly on adoption of domestic laws and policies. In part because of interruptions in efforts to fully establish home rule following disruptions of violence and the "Troubles," the process of enacting NI domestic laws has been slower paced than in Wales or Scotland, even after the Good Friday Agreement of 1998.
Nonetheless, high on the domestic agenda in NI have been laws and policies related to older people. One of the first modern era laws passed by Stormont was domestic legislation that established an independent Commissioner of Older People for NI. The discussions on that law overlapped with my Fulbright year and sabbatical in NI in 2009-10, and resulted in passage in January 2011.
The first Commissioner, Claire Keatinge, was appointed to a four year term in November of 2011. In my observation, Claire is a force of nature and if anyone can create a clear path to establish ageing as a priority matter for action in NI, it will be this dynamo.
On June 25, Commissioner Keatinge presented her call for fresh adult safeguarding legislation in NI. With emerging data suggesting significant increases in the number of cases of alleged abuse of older people, Commissioner Keatinge commissioned an evaluation of existing laws and comparative approaches in other nations. She asked whether and how NI can better protect adults from abuse, including physical, emotional, sexual and financial abuse. After receipt of the academics' report, her in-house legal team responded, helping her present a clear written call for action, a template for legislation.
As explained in her launch on June 25, the Commissioner advocates for:
- Clear definition of "adult at risk," the target term for safeguarding measures and not limited to older adults, as well as enhanced definitions of abuse or harm, and especially of financial abuse;
- Establishment of an adult safeguarding board, with statutory powers;
- Specific duties for relevant bodies and organizations within NI to report, investigate, provide services and cooperate with other agencies to order to better protect "adults at risk;"
- Specific powers of access to an individual believed to be at risk of harm or abuse, to defuse the potential for the abuser to influence the investigation process; and
- Protection from civil liability for those making reports of suspected abuse.
Further, Commissioner Keatinge recommends additional consideration be given to whether an Adult Safeguarding Bill -- as a single piece of legislation -- should grant specific powers to authorities to remove an individual at risk or ban a suspected abuse from contact. Her call for action recommends consideration of a specific grant of power to access financial records, often deemed crucial to investigation of financial risk and proof of abuse. Also on the Commissioner's radar screen is the potential adoption of specific criminal charges for "elder abuse" or "corporate neglect."
It has been exciting for me to see the evolution of the Commissioner's role and her use of the Queens University Belfast and University of Ulster academic reviews (on which I consulted). Professor John Williams (depicted on the far left, next to Claire Keatinge in yellow), head of the department of law and criminology at Aberystwyth University in Wales provided forceful support for the proposed legislation in Northern Ireland during his commentary at the launch, saying the status quo cannot be justified.
I'd like to say I see an easy path for a comprehensive Adult Safeguarding Law to emerge in the near future for Northern Ireland, thus serving as a role model for other jurisdictions facing similar issue.
I have to admit, however, that I was discouraged by what sounded -- at least to me -- like vacillation coming from key government leaders. The Minister of Health, Social Services and Public Safety in the Northern Ireland Executive, Edwin Poots (above, in the blue tie). spoke at the Commissioner's launch, expressing his own concern for older people as victims of abuse, especially financial abuse; however, I was disappointed when Minister Poots predicted that it would not be possible for Stormont to reach the issue of safeguarding legislation in the next 21 months. (Of course, coming from the political gridlock of Congress in the U.S., and as a witness to the snail's pace for protective legislation in my home state of Pennsylvania, I guess I should not be too surprised.)
Still, the good news is that the first major steps have been taken by Commissioner Keatinge and her capable staff including Catherine Hewitt and Emer Boyle, with strong support at the launch from social and health care professionals who have seen first hand the potential for subtle and not-so-subtle abuse of elder, disabled or frail adults in Northern Ireland.
And by the way, Professor Williams from Wales will be one of the presenters at the 2014 International Elder Law and Policy Conference at John Marshall Law in Chicago, speaking on older persons' access to justice as a key component of international human rights on Friday, July 11. It is a small world at times and one with a growing commitment to tackle key topics in ageing.
Wednesday, July 9, 2014
We've previously posted advance information about the International Elder Law and Policy Conference that will be hosted this week -- July 10-11 -- in Chicago. The organizers are John Marshall Law School; Roosevelt University, College of of Arts and Sciences; and East China University of Political Science and Law.
The conference will have an interesting format, combining presentations from a range of professionals with experience working with or for older persons, and working sessions to draft a model "International Bill of Rights for Elderly Persons, in parallel with U.N. sessions on ageing.
As an example of the breadth of participation and coverage at this conference, my session on Thursday focuses on "Health Care, Caregving for Older Persons and Legal Decision Making," and will be co-moderated with Professor Walter Kendall at John Marshall. The panel includes the following topics and speakers:
- "Dementia and Planning Death: The Challenge for Advance Directives," by Meredith Blake at University of Western Austalia Law School
- "Social Change and Its Apparent Effect on Senior Care Services: A Comparative Study of Post-Soviet Union Russia and the U.S.," by Amy Delaney, partner at Delaney, Delany & Voorn in Illinois, and Alina Risser, a lawyer from Russia, currently studying law at John Marshall;
- "Rights are Not Good for Older Persons in Long-Term Care Settings? Experience from the European Union," by Nena Georgantzi, Legal Officer for AGE Platform Europe;
- "Bridging the Caregiver Gap: Does Technology Provde an Ethically and Legally Viable Answer?," by Donna Harkness, University of Memphis School of Law;
- "The Insufficiency of Spiritual Support of Urban Elders in China and Suggestions on Legislation," by Jun Li, East China University of Political Science and Law.
We'll report more after the events on Thursday and Friday!
July 9, 2014 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 8, 2014
If one looks at the Uniform Law Commission website, it appears that slow but steady progress is being made by states in adopting recommended legislation governing Powers of Attorney (POAs). The ULC recommendation reflected more than four years of research and drafting, culminating in a detailed proposal for POAs issued in 2006. According to the website, 16 states have enacted the uniform law, with an additional four states, Connecticut, Mississippi, Washington, and my own home state, Pennsylvania, considering adoption in 2014. The ULC's recommendations were a deliberate attempt to "preserve the durable power of attorney as a low-cost, flexible, and private form of surrogate decision making while deterring use of the power of attorney as a tool of financial abuse of incapacitated individuals."
On July 3 last week, Pennsylvania's Governor Corbett signed legislation, now designated as Act 95 of 2014, making significant changes to the existing law governing POAs in Pennsylvania. However, the passage of this law also demonstrates how so-called "uniform" laws may be less than uniform from state-to-state in terms of their actual requirements, and I tend to wonder whether other states have also enacted some variation on the ULC's recommendation.
Pennsylvania Act 95 of 2014 (available as HB 1429 here) took more than 3 years of drafting, redrafting, hearings, negotiations, and compromises to accomplish. The spur for adoption was a court decision invalidating transactions executed in reliance on a "void" power of attorney, one purportedly "signed" with an X by a woman while hospitalized. The majority decision put the financial impact on the party accepting the POA, without regard to whether it was using good faith in relying on a document that may appear valid on its face. After that decision, many Pennsylvania retirement plan administrators, banks or other financial institutions were reluctant to honor POAs, fearing they could become the guarantor of misused authority. See Vine v. Commonwealth of Pennsylvania State Employees Retirement Board, 9 A.3d 1150 (Pa. 2010).
PA Act 95 of 2014 addresses the "Vine" question by clarifying a grant of immunity for any person who in "good faith accepts a power of attorney without actual knowledge" of voidness or other invalidity. But Act 95 also mandates certain execution protocols, including:
- for most but not all POAs, requiring the principal's signature, mark or third-party signature to occur in front of two adult witnesses;
- requiring the principal to acknowledge his or her signature before a notary public or other individual authorized by law to take acknowledgments;
- continuing the requirement that principals must sign "notice" forms, but now with enhanced warnings about the significance of POAs, including the recommendation that "before signing this document, you should seek the advice of an attorney at law to make sure you understand it;"
- continuing the requirement that agents must sign an acknowledgement of certain responsibilities, now including an obligation to "act in accordance with the principal's reasonable expectations."
Each of these execution requirements, although certainly permitted by ULC's proposal (and perhaps also entirely consistent with the ULC's concern about the potential for financial abuse), is greater than what is required by the Uniform Law on Powers of Attorney.
At the same time, the Uniform Power of Attorney Act includes potential remedies for abuses of POAs not addressed by old or new law in Pennsylvania, including Section 116 that would grant spouses, parents, descendants and presumptive heirs the right to seek judicial review of an agent's conduct. One open question in Pennsylvania is whether wider standing to challenge suspected abuse is necessary.
One takeaway message from the history of more than 8 years of consideration by states of the Uniform Law on POAs, and more than 3 years of consideration in Pennsylvania about how or whether to adopt some or all of UCL's specific approach, is that achieving uniformity of state civil laws is not an easy task. That makes me even more appreciative of the effort and comparative "ease" of adoption of early efforts at uniformity, such as the uniform commercial code and the recognition that interstate sales transactions would benefit from consistency.
Portions of Pennsylvania Act 95 of 2014, including the grant of immunity for good faith reliance on POAs by third-parties, are immediately effective, while other portions of the law take effect on January 1, 2015. The Pennsylvania Elder Law Institute on July 24-25 in Philadelphia will have several sessions addressing the effect of the new law.
ElderLawGuy Jeff Marshall also has a great overview of the new Pennsylvania law on his blog. Hat tip also goes to Pennsylvania attorney Bob Gerhard for keeping Pennsylvania practitioners up-to-date on the bill numbers and enactment details.
July 8, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, June 20, 2014
I'm at the mid-point in a three-week period of fairly intense focus on elder protection issues.
Last week, I accepted the invitations of Dickinson Law alum Bob Gerhard and Judge Lois Murphy to join them at the Montgomery County Elder Justice Roundtable to discuss practical concerns about elder abuse at the local level. Bob and I conducted two sessions on Powers of Attorney.
This week, I've had the privilege of being part of working sessions of the Pennsylvania Supreme Court's Elder Law Task Force. Judge Murphy, right, is also a part of this effort. A fascinating mix of trial and appellate level judges, district attorneys, legal aid specialists, solo practitioners, "big firm" lawyers, court administrators, state officials, protective service case workers, social workers (and a couple of us academic types) spent two intense days discussing a year's worth of research on how better to serve the interests and needs of adults who may be at risk of neglect or intentional harm, including financial abuse. Guided by the charge of Justice Debra Todd of the Pennsylvania Supreme Court, we're looking to issuance of a comprehensive report and recommendation for actions, probably in the early fall 2014.
Next week, I land in Belfast, Northern Ireland for several days of working group meetings on law and aging topics. On Tuesday, June 24, I am part of a research team's Roundtable discussion on recommendations regarding "social care" for older persons. hosted by the independent Commissioner of Older Persons in Northern Ireland (COPNI). Our team leader for that project is Dr. Joseph Duffy of Queen's University Belfast. The following day, I will attend the COPNI's launch of "Protecting our Elder People in Northern Ireland: A Call for Safeguarding Legislation in Northern Ireland." Commissioner Claire Keatinge and her team have been tireless in pursuing a full agenda of safeguarding, care and dignity goals for seniors. Last winter I worked on research findings and recommendations with team leader Dr. Janet Anand, also of Queens University Beflast, that served as a base for the Safeguarding Law proposals. These two projects have involved amazingly talented scholars from diverse backgrounds, including social work and law in Scotland, England, Wales, Australia and, of course, both the north and south of Ireland. The truth is that I've been an avid "student" during my opportunities in Northern Ireland, often facing the reality that those on the other side of the Atlantic are ahead of the U.S. in thinking about key concepts, especially "social care" goals. I look forward to more work, writing several follow-up articles in collaboration with team members as a result of the rich research environment of the last year.
Following this schedule, I'm probably going to take a break from "daily" blogging for a few weeks. I fear my brain may explode if I don't give it a bit of a rest, and I hear the green hills and fields of Ireland calling to me.
June 20, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)
Tuesday, June 17, 2014
Via the Times of India:
According to a recent study conducted by HelpAge India, half the elderly population in the country faces abuse of various kinds. This was the tenth year that the study was undertaken by the NGO, whose results were released days before the World Elderly Abuse Day observed on Sunday. Conducted in six tier I and six tier II cities of the country, including Nagpur, the survey aims to bring forth the reasons and incidences of abuse faced by the senior citizens. "A decade ago, we saw that even those elderly people who are living with their families are very lonely and sad. This was mainly because of the changes in the family unit concurring with the many social changes that were happening in the country. We started the study on elderly abuse 10 years ago but the results are being made public only since last three years," said Sunil Thakur, a senior manager in the NGO. He added that highlighting this abuse in numbers may result in some concrete action for the protection of the elderly.
Monday, June 16, 2014
A United Nations treaty, civil rights, guardianship, protection from school bullies, free appropriate public education, and emotional-support animals are topics covered in this disability-themed May-June 2014 Clearinghouse Review issue. Also covered: making the most of current resources to increase legal services.
Tuesday, June 10, 2014
A recent issue of the magazine "Experience," published by the Senior Lawyers Division of the American Bar Association has several articles on current and future programs aimed at elder abuse. The Spring 2014 theme is "Courts and the Elderly: Challenges and Solutions." For example, an opening article by Lori Stiegel, senior attorney with the Commission on Law & Aging, reports on several elder abuse initiatives in recent years, including a special civil and criminal docket for elder abuse cases in Alameda County, California; Elder Justice Centers in two Florida counties (Hillsborough and Palm Beach); an In-Home Emergency Protective Order Initiative in Jefferson County, Kentucky; and an Elder Temporary Order of Protection Initiative in Kings County, New York.
Additional articles in the issue include:
- "The Case for Specialized Elder Abuse Protectors," by Page Ulrey, a senior deputy prosecuting attorney in Seattle, Washington.
- "Elder Protection Courts: Judicial Perspective, Holistic Approach," by Judge Patricia Banks (Illinois) and Judges Julie Conger and Joyce M. Cram (California).
- "Courts as Convenors," an interview with Judge Annette Rizzo on the Philadelphia Mortgage Foreclosure Diversion Program, by Pennsylvania Attorneys Edward Madeira and Joseph Sullivan.
- "Elder Abuse and Exploitation: How Courts Can Take Leadership in Developing Effective Responses," by Richard Van Duizend,reporter for the National Probate Court Standards and Brenda Uekert, of the National Center for State Courts.
- "Resources for Fighting Elder Abuse - The Hidden Crime," also by Brenda Uekert of the National Center and Richard Van Duzend.
- "The Illinois Experience: Increasing Access to Justice for the Elderly and Others," by Jeffrey D. Colman, Edq., and Danielle Hirsch, assistant director for the Civil Justice Division of the Administrative Office of the Illinois Courts.
Thursday, June 5, 2014
June 5, 2014
Let’s Talk about Elder Abuse Prevention
By Kathy Greenlee, Assistant Secretary for Aging and Administrator of ACL
Over the course of my service as Assistant Secretary for Aging, one imperative has stood above all others: preventing elder abuse. I talk about it every chance I get, and it is something we all need to talk about. Preventing elder abuse must be part of the national conversation about how we care for older Americans.
That’s why, as our nation prepares to observe World Elder Abuse Awareness Day (WEAAD) on June 15, 2014, I hope you will join me in seeking out opportunities to raise awareness about elder abuse and neglect. Read more.
Update: Voting for the HHS People’s Choice Award Extended to June 13
Click here to cast your vote for “Suicide Prevention: What is your role”—ACL’s Submission for the 2014 HHS “People’s Choice” Award. The deadline for voting has been extended to next Friday, June 13.
Friday, May 30, 2014
A huge theme at the 3rd World Congress on Guardianship was supported decision-making. I was pleased and suprised to find this in my mailbox this morning:
ACL Funding Opportunity: Supported Decision Making
The purpose of this project is to create a training and technical assistance/resource center on supported decision making. The Center will collect and disseminate materials on supported decision-making, including the experiences of people with intellectual and developmental disabilities (I/DD) in making informed decisions with the use of supports. The project will also include a proposal to develop measures to compare outcomes for people with I/DD and older Americans who use supported decision-making methods and practices to exert control and choice in their own lives compared with outcomes for individuals under substituted decision-making arrangements.
Deadline: Electronically submitted applications must be submitted no later than July 2, 2014 at 11:59 p.m.
Click here to download additional information including the application package.
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.
Friday, May 23, 2014
John Marshall Law School and Roosevelt University, both in Chicago, and East China University of Political Science and Law in Shanghai, are jointly sponsoring an International Elder Law and Policy Conference in Chicago on July 10-11.
Keynote speakers include Professor Israel Doron of the University of Haifa in Israel and Dr. Ellinoir Flynn and Professor Gerard Quinn, both from National Unviersity of Ireland, Galway School of Law.
Scheduled panel topics include:
- Dignity and Rights of the Elderly
- Elimination of Age Discrimination
- Caregivers and Surrogate Decision Makers
- Social Security, Pensions and Other Retirement Financing Approaches
- Prevention of Elder Abuse
- Access to Justice
Here's the link to the Registration website.
Thursday, May 22, 2014
One of the speakers for the World Congress on Adult Guardianships, taking place next week in the Washington D.C. area, is visiting this week at Penn State Dickinson School of Law.
Prof. Dr. Dagmar Brosey, from Cologne University of Applied Sciences, is part of a two-person panel titled "Adult Guardianship Decision-Making Process: Psychomorphological and Legal Perspectives." Professor Brosey, a lawyer, teaches courses on law for social work students, including advanced degree students. During her visit, we've been talking about similarities and differences in approaches between Germany and the U.S. to protection and advocacy for adults, including older adults.
For example, I've learned that Germany has moved away from "guardianships" (as Americans often describe a court-appointed system of substitute decision-makers) to a system which does not require a finding of "incapacity" in order to permit appointment of a "Betreuer," a German word which translates into English as "custodian." A literal translation by itself is not quite adequate, as Dr. Brosey explains a German "Betreuer" also functions as a type of "legal caregiver." The Betreuer therefore has great responsibilities to ascertain the capabilities, desires and interests of the principal, rather than simply make decisions "for" the principal. Professor Brosey also emphasizes that the modern German approach should be "person-centered," and involves recognition of "necessity" to determine the scope of the appointed person's authority to make decisions.
A deeper understanding of the 22-year old German system will help the thinking of Americans and others, who are often more familiar with the historic view on how guardianships should function. The contrast in approaches is central to the debates that are likely to take place at the Congress next week. Even in Germany, with its modern approach, there is discussion underway about whether the Betreuer's role should be one of "supported decision-making" or "shared-decision-making," or "substituted-decision making."
Professor Brosey's co-presenter, Prosper Ayawei, from the Bayelsa State Government of Nigeria, has a background in psychology. Thus, his emphasis is on a "psychomorphological" analysis. The contrast between their two presentations should be very illuminating. Their breakout session is scheduled for Thursday, May 29 at 1:45 p.m.
For more on the packed schedule for this important conference, here's a link to the program.
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."
Thursday, May 15, 2014
Guardianship has long been the primary method of handling decision making for individuals with intellectual and mental health disabilities. But is it the best method? At this Advocacy in Action webinar held by the Shriver Center on May 7, 2014, three experts in the field discussed guardianship and its alternatives. Topics included the Convention on the Rights of Persons with Disabilities and the theoretical underpinnings of the movement toward preserving the autonomy of individuals with intellectual and mental health disabilities. The Protection and Advocacy system’s involvement was also discussed and a supported decision making pilot project in Massachusetts was featured.
Wednesday, May 14, 2014
It occurs to me that what I'm about to write here is a mini-review of a mini-book. Slightly complicating this little task is the fact that I count both authors as friends and mentors.
The latest edition of Elder Law in a Nutshell by Professors Lawrence Frolik (University of Pittsburgh) and Richard Kaplan (University of Illinois) arrived on my desk earlier this month. (As Becky might remind us, both are definitely Elder Law's "rock stars.") And as with fine wine, this book, now its 6th edition, becomes more valuable with age. This is true even though achieving the right balance of simplicity and detail cannot be an easy task for authors in the intentionally brief "Nutshell" series. Presented in the book are introductions to the following core topics:
- Ethical Considerations in Dealing with Older Clients
- Health Care Decision Making
- Medicare and Medigap
- Long-Term Care Insurance
- Nursing Homes, Board and Care Homes, and Assisted Living Facilities
- Housing Alternatives & Options (including Reverse Mortgages)
- Alternatives to Guardianship (including Powers of Attorneys, Joint Accounts and Revocable Trusts)
- Social Security Benefits
- Supplemental Security Income
- Veterans' Benefits
- Pension Plans
- Age Discrimination in Employment
- Elder Abuse and Neglect
The authors describe their anticipated audience, including "lawyers and law students needing an overview of some particular subject, social workers, certain medical personnel, gerontologists, retirement planners and the like." Curiously, they don't mention potential clients, including family members of older persons. I suspect the book can and does assist prospective clients in thinking about when and why an "elder law specialist" would be an appropriate choice for consultation. This book is a very good starting place.
What's missing from the overview? Not a lot, although I find it interesting that despite solid coverage of the basics of Medicaid, and even though it is unrealistic to expect exhaustive coverage in a mini-book, the authors do not hint at the bread and butter of many elder law specialists, i.e., Medicaid Planning. Thus, there's little mention of some of the more cutting edge (and therefore potentially controversial) planning techniques used to create Medicaid eligibility for an individual's long-term care while also preserving assets that otherwise would have to be spent down.
Modern approaches, depending on the state, may range from the simple, such as permitted use of assets to purchase a better replacement auto, to more complex planning, as in states that permit purchase of spousal annuities or use of promissory notes, allow modest half-a-loaf gifting, or recognize spousal refusal. Even though the federal Deficit Reduction Act of 2005 succeeded in restricting assets transfers to non-spouse family members, families, especially if there is a community spouse, may still have viable options. Without appropriate planning the community spouse, particularly a younger spouse, may be in a tough spot if forced to spend down to the "maximum" permitted to be retained, currently less than $120,000 (in, for example, Pennsylvania). See, for example, a thoughtful discussion of planning options, written by Elder Law practitioners Julian Gray and Frank Petrich.
Perhaps the Nutshell omission is a reflection of the unease some who teach Elder Law may feel about the public impact of private Medicaid planning?
May 14, 2014 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)