Wednesday, December 13, 2017

"Snake Oil," Tattoos & Why Some Hospice Doctors Prefer Medical Powers of Attorney

Are games and food supplements that promise to stave off the onset of dementia the modern day version of "snake oil?" I promised to write more about the Aging Brain Conference at Arizona State University's Sandra Day O'Connor College of Law on December 8, 2017.  Speaker Dr. Cynthia Stonnington, Mayo Clinic, offered an important look at ways in which law, ethics, medicine, and commerce can collide with her survey of a host of approaches receiving "popular" press treatment.  

She examined self-described "brain-training" programs, miracle diets, supplements and targeted exercise programs, noting that most studies that purport to demonstrate positive results from these items have serious flaws.  Thus, at best, programs that claim to provide "protection" against dementia are usually promising more than has been proven.  Dr. Stonnington, along with the morning keynote speaker, former U.S. Surgeon General Richard Carmona, reminded us that

  • maintaining social engagement,
  • engaging in lifelong learning,
  • getting regular exercise of any type,
  • having good blood pressure control,
  • getting adequate sleep, and
  • focusing on good nutrition (including eating plans such as the Mediterranean, DASH or MIND diets)

are  far more important than any single, magic game or exercise.

One of the most lively discussions of the day came near the end, in response to presentations by Dr. Patrica Mayer of Banner Health in Phoenix, Amy McLean of Hospice of the Valley. and Life Sciences Professor Jason Robert (ASU) speaking for himself and Susan Fitzpatrick (James S. McDonnell Foundation), about end-of-life considerations for persons with dementia or other serious illnesses.  What would be the most likely response of a physician or emergency personnel confronted with a "do not resuscitate" tattoo on the chest of an emergency patient?  Dr. Mayer stressed that she is seeking reliable methods of communicating end-of-life wishes, and for her that means a preference for a written, Medical Power of Attorney.  She wants that "live" interaction whenever possible, in order to fully explore the options for care for individuals unable to communicate for themselves.  But she also noted a frequent frustration when she contacts designated  POAs about the need to make tough decisions, only to learn they were completely unaware before that moment of having been named as the designated agent.  

LSI_Aging Brain 120817 Competency_and_Incapacity_1 SPEC (1)I was part of a panel of court-connected speakers, including Arizona Superior Court Judge Jay Polk (Maricopa County), neuropsychologist  (and frequent expert witness) Elizabeth Leonard, and experienced Phoenix attorney Charles Arnold.  I was interested to hear about  -- and will pursue more information on -- the psychologists' use of evaluative tools for clients that use scenarios that would appear to test not just for loss of memory, but impaired judgment.  I was speaking on the unfortunate need for judicial inquiries into "improvident transactions" by persons with problematic cognition and I used litigation approaches from other locations -- Ireland (common law) and Maine (statutory) -- as examples.  The Arizona legal experts reminded me to take a closer look at Arizona's financial exploitation laws.

For more from this conference, see Learning to Say the Word "Die"  --  about a pilot program developed by Dr. Mayer while she was an advanced bioethics fellow at the Cleveland Clinic.  I also recommend Dr. Mayer's article on CPR & Hospice: Incompatible Goals, Irreconcilable Differences

 

December 13, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Games, Health Care/Long Term Care, Legal Practice/Practice Management, Programs/CLEs, Science, Statistics | Permalink | Comments (0)

Wednesday, December 6, 2017

Arizona State Presents Legal, Policy and Ethical Perspectives on "The Aging Brain"

On December 8, 2017, I'm excited to be participating in a conference on The Aging Brain: Legal, Policy & Ethical Perspectives, in Phoenix, Arizona.  This program is a follow-up to an interdisciplinary workshop hosted at Arizona State University's Sandra Day O'Connor School of Law in the fall of 2016. This year's presentations will take place at the the United States Courthouse in Phoenix.

The planned schedule is jam-packed with speakers I'm looking forward to hearing, including:

Welcome: Betsy Grey, Sandra Day O’Connor College of Law, ASU

Introduction: Dean Douglas Sylvester, Sandra Day O’Connor College of Law, ASU

Keynote Speaker:Richard H. Carmona, M.D., M.P.H., FACS, 17th Surgeon General of the United States, Chief of Health Innovations, Canyon Ranch, Distinguished Professor, University of Arizona

Scientific Developments in Aging and Dementia: Pre-Symptomatic Screening for Neurodegenerative Diseases

    Panel Chair: Hon. Roslyn O. Silver, U.S. District Court for the District of Arizona

  • Dr. Richard Caselli, Mayo Clinic
  • Dr. Jessica Langbaum, Banner Alzheimer's Institute
Ethical, Legal, and Social Implications
       Panel Chair:  Michael Saks, Sand Day O'Connor College of Law
  • Dr. Cynthia M. Stonnington, Mayo C;inic
  • Jalayne J. Arias, UCSF Neurology, Memory and Aging Center
  • Henry T. Greely, Stanford Law School

Aging at Home

    Panel Chair: Larry J. Cohen, The Cohen Law Firm

  • David Coon, College of Nursing & Health Solutions, ASU
  • Kent Dicks, Life365, Inc.
Competency and Incapacity: Assessment and Consent

    Panel Chair: Charles L. Arnold, Frazer Ryan Goldberg & Arnold, LLP

  • Hon. Jay M. Polk, Probate Dep’t. Associate Presiding Judge, Superior Court of Arizona for Maricopa County
  • Katherine Pearson, Dickinson School of Law, Pennsylvania State University
  • Dr. Elizabeth Leonard, Neurocognitive Associates
  • Betsy Grey, Sandra Day O’Connor College of Law, ASU

End of Life

    Panel Chair: Dr. Mitzi Krockover, Health Futures Council at ASU

  • Jason Robert, Lincoln Center for Applied Ethics, ASU
  • Amy McLean, Hospice of the Valley
  • Dr. Patricia A. Mayer, Banner Baywood & Banner Health Hospitals

Keynote:

Dr. Susan Fitzpatrick, President, James S. McDonnell Foundation
Introduction by Jason Robert, Lincoln Center for Applied Ethics, ASU

December 6, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Science, Statistics | Permalink | Comments (0)

Monday, December 4, 2017

Growth of Mediation Programs in Orphans' and Probate Courts

Last Saturday, I had the unique privilege to sit in on a day of Advanced Probate Mediation Training, a component of a larger ADR program at the Orphans/ Court for Prince George's County, Maryland.  The attendees included long-serving mediators from other court divisions, judges and attorneys and individuals interested in a formal mediation process for probate cases. The facilitators for the training were Mala Malhotra-Ortiz and Cecilia Paizs, very experienced educators and ADR specialists. Chief Judge Wendy Cartwright welcomed us all and made it clear that mediation, collaborative probate and structured settlements are three vital programs for the probate division.  Certainly this is part of a trend favoring ADR, now applying to post-death disputes. 

My strongest impression of the day was the warm and positive demeanor of the folks I met, especially as they were giving up most of their Saturday.  I had the feeling that they were eager to share this experience.

Part of the training involved role plays -- and everyone in the room took the exercises seriously.  In Maryland, a challenge to a will is called a "caveat" proceeding, and a threshold question for court administrators is whether a specific dispute seems to be a good candidate for referral to mediation.  

In one exercise, I played a minor role (a "grandchild") of the testator, in a fact pattern that involved two named beneficiaries, a biological child and a second beneficiary who wasn't a direct blood relation. The fact pattern was realistic, as both sides wanted "accountings" for pre-death expenses by those serving as the caregiver or  POA for the elderly testator before her death.  The dispute included a long-history of difficult family dynamics, and was realistic as there was a temptation for other family members to take sides with the primary disputants. We even had an "obstructionist" attorney as an assigned role, someone who was still advocating for the purely "legal" outcome during the mediation.  

The majority of the participants were also lawyers -- and I could quickly see how uneasy the fact pattern made some attorneys. One option for the mediated outcome was distinctly "nonlegal" -- i.e., permitting the parties to split the proceeds of the estate in a way that was not the same as the testator's directions in her will.   The facilitators did an excellent job in counseling the lawyers on how to change their thinking, so as to allow consensus to emerge for a final, written settlement agreement. The fact pattern also put us in the position of needing to think about whether there had been any pre-death elder exploitation, and if so, to discuss how mediators should handle the possibility of a "crime."

I know our law students are going to be very lucky to have Mala Malhotra-Ortiz join us at Dickinson Law in the near future as an adjunct professor.   And, by the way, for anyone interested in why probate courts are sometimes called  "orphans' courts," I recommend the Court's link above on the history of Orphans' Courts in Maryland. 

December 4, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Professor Tamar Frankel and The Fiduciary Rule -- Still Shaking Up Wall Street

In the Wall Street Journal, there is a recent, wonderful profile of Boston University Law Professor Tamar Frankel, who has been fighting the good fight to gain adoption of "The Fiduciary Rule" for financial advisors, investment brokers and others in positions of trust for her entire academic career.  

And, at age 92, she's still fighting the good fight, as the Trump administration recently delayed full implementation.   

When Ms. Frankel began researching fiduciary law in earnest in the 1970s, she dwelled on that idea: A fiduciary is someone trusted by others because he or she has superior knowledge and expertise. People hire brokers because the brokers know what they’re doing and the clients don’t. That gives fiduciaries power and responsibility over those who trust them.

 

The unconditional trust that clients place in a fiduciary creates a paradox, argues Ms. Frankel. “When you get power, you lose the power you might otherwise have,” she says.

 

A fiduciary adviser can’t abuse the relationship of trust by collecting unreasonable compensation or harboring avoidable conflicts of interest. The relationship is meant to satisfy only the needs of the client.

Professor Frankel appears to be remarkably sanguine about the latest delays:

With the Trump administration putting parts of the fiduciary rule on hold, Ms. Frankel counsels patience.

 

“What the rule has done is sown the seed, and the longer it takes the better off we are, because what we must change is the culture and the habits in the financial industry,” she says. “Habits don’t change in one day. It takes time.”

 

After she turns 93 next July 4, Ms. Frankel says, she will stop teaching—although she will continue to research and write. What accounts for her longevity? “Caring less and less about what other people think,” she says, “and more and more about questions you don’t have answers to.”

I have a copy of Professor Frankel's thoughtful treatise on Fiduciary Law (Oxford Univ. Press, 2011) on the shelf behind my desk, complete with sticky notes and much yellow and red highlighting.  I've been meaning to write Professor Frankel to thank her for her work over the years -- and now this article reminds me to get to that task!

My thanks to my always eagle-eyed friend and correspondent, Karen Miller, in Florida for this latest find and reminder.  

December 4, 2017 in Books, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, Retirement | Permalink | Comments (0)

Sunday, November 26, 2017

Canadian Centre for Elder Law New Report on Vulnerable Investors

The Canadian Centre for Elder Law (CCEL) released a new report, Report On Vulnerable Investors: Elder Abuse, Financial Exploitation, Undue Influence And Diminished Mental Capacity, which can be downloaded as a pdf here. The report was a joint project between CCEL and FAIR (Canadian Foundation for Advancement of Investor  Rights). Here is the executive summary of the report

Canadian investment firms and their financial services representatives1 (hereinafter referred to as "financial services representatives" or simply "representatives") serve millions of vulnerable investors, many of whom are older Canadians. Vulnerable investors may be persons living in isolated, abusive or neglectful situations which can make them more likely to be subject to undue influence. They also may be persons with diminished mental capacity due to health issues, developmental disability, brain injury or other cognitive impairment. Such social vulnerabilities may be episodic, or long-term.2

Who is a Vulnerable Investor?

Older investors, persons with fluctuating or diminished mental capacity, and adults who are subject to undue influence or financial exploitation are collectively referred to in this report as vulnerable investors. This concept of vulnerability is often a contentious one. This report uses the term "vulnerable" to refer to social vulnerability, and does not ascribe vulnerability to older persons as an inherent personal characteristic.3 Rather, the term reflects an understanding that differing social conditions may make a person more or less vulnerable. Individual older investors may personally not be socially vulnerable. But as a group, older individuals may be subject to external conditionssuch as ageismthat negatively affect them. This report specifically notes that ageism can make older people broadly vulnerable as a class, even while individual older adults may not be, or identify, as particularly vulnerable themselves.

This report adopts the core aspects of the Quebec definition of vulnerable investor. A vulnerable investor is a person who is in a vulnerable situation, who is of the age of majority, and lacks an ability to request or obtain assistance, either temporarily or permanently, due to one or more factors such as a physical, cognitive or psychological limitation, illness, injury or handicap.

It is important, and a goal of this report, to highlight the increased social vulnerability risks associated with aging and to raise awareness that aging life-course benchmarks may trigger a representative to start ensuring that increased appropriate protections or standards are in place. In this way, the issue of older investors will be drawn to the fore, without supporting the myth that all old people are vulnerable and in need of protection.


 
 

November 26, 2017 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, International | Permalink | Comments (0)

Monday, November 20, 2017

University of Missouri Law Professor David English Presents Guardianship Reforms to New Mexico

University of Missouri Law Professor David English, who is part of a team working on new Guardianship Law proposals for the Uniform Law Commission, was reportedly in Albuquerque New Mexico recently.  His appearance is in response to one of the latest regional scandals in the U.S. about the use of so-called "professional" guardians.  See here and here for more on the recent history in New Mexico, including the summer 2017 federal indictment of key individuals .

According to news reports, part of Professor English's concern is about the dangers that can attend unnecessary secrecy about proceedings: 

“What struck me when I first looked at New Mexico, I was very surprised as a general matter that guardianship proceedings were not open to the public. That’s not consistent with how most other states address the issue,” he told the guardianship commission on Friday.

 

In New Mexico, guardianship proceedings are sequestered and closed to the public. The only publicly available record is a court docket sheet identifying the parties involved and a general list of the actions and filings in the case. But, in Missouri, where English lives, the public can attend hearings in which judges decide whether a guardian should be appointed for an incapacitated person. Typically, those placed under guardianship or conservatorships are elderly, those with dementia or Alzheimer’s or others who need help with their decision-making or finances.

 

He said the intent of the new reform laws would be to open guardianship proceedings to the public, unless the person for whom the guardianship is being considered asks for a closed hearing or a judge decides otherwise. “It’s very important that the public have some access to what’s going on in guardianship cases,” English told the guardianship commission. “At least be able to attend the hearing.”

For more on the hearings and possible changes in New Mexico laws and procedures, see New Reforms in Guardian Law Presented by the Albuquerque Journal's investigative reporter, Colleen Heid.  

November 20, 2017 in Consumer Information, Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, November 17, 2017

"Evictions" of Nursing Home Residents Trigger Lawsuits

The issue of "evictions" in residential facilities for older adults has long been on my radar screen, and I was especially interested to hear (and read) news of a lawsuit initiated by the AARP Foundation Litigation (AFL) against a California skilled nursing facility and its parent entity following the facility's refusal to "readmit" an 82 year-old resident following her temporary hospital stay.  As reported by NPR for All Things Considered on November 13, 2017: 

[The Defendants] say that she became aggressive with staff and threw some plastic tableware. So Pioneer House called an ambulance and sent her to a hospital for a psychological evaluation. The hospital found nothing wrong with her, but the nursing home wouldn't take her back. They said they couldn't care for someone with her needs.  Jones protested his mother's eviction to the California Department of Health Care Services. The department held a hearing. Jones won.

 

"I expected action — definitely expected action," says Jones.  Instead, he got an email explaining that the department that holds the hearings has no authority to enforce its own rulings. Enforcement is handled by a different state agency. He could start over with them.

 

This Catch-22 situation attracted the interest of the legal wing of the AARP Foundation. Last year, attorneys there asked the federal government to open a civil rights investigation into the way California deals with nursing home evictions. Now, they're suing Pioneer House and its parent company on Gloria Single's behalf. It's the first time the AARP has taken a legal case dealing with nursing home eviction.

For more, read AARP Foundation Sues Nursing Home to Stop Illegal Evictions.  

My thanks to my always alert colleague, Dickinson Law Professor Laurel Terry, for sharing this item.  

November 17, 2017 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, November 13, 2017

Veterans Victims of Financial Elder Abuse

Boots on the Ground - Fighting Financial Abuse of Elder Veterans explains the Veterans Benefits Protection Project. "One form of financial abuse targets elder veterans and their families, promising to assist them with qualifying for veterans benefits through the sale of unsuitable financial products and irrevocable living trusts. These scams threaten the health, safety, and financial well-being of thousands of elder veterans across the country."  The project started "outreach and website last Veterans Day to share reliable resources for veterans and professionals working with veterans. Since then, the IOA has conducted 14 trainings to over 725 individuals, notified and trained administrators at all licensed residential care facilities and senior centers in San Francisco about the scam, and received an Aging Innovation Award from the National Association of Area Agencies on Aging."

Here's an explanation about the scam

Financial predators have been making large commissions by selling medium-and-high wealth seniors unnecessary or unsuitable financial products or services. They tell the seniors that in order to get the benefit, they need to “appear impoverished,” and they can accomplish that by converting their assets into their “veteran-friendly estate plan.” Seniors who follow their advice end up with irrevocable trusts or financial products that tie up their money so they cannot access it for the rest of their lives, while the predators walk away with large commissions or service fees for their “help.”

This multi-agency project offers resources and materials for veterans and families and professionals working with veterans.

November 13, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Veterans | Permalink | Comments (0)

Monday, October 30, 2017

A Historical Look at Guardians for Minors and "Persons of Unsound Mind"

My research turned me to an interesting resource available in the public domain, A Treatise on the American Law of Guardianship of Minors and Persons of Unsound Mind.  The book was published in 1897.

Particularly in light of current issues about court oversight of guardians and conservators, it is interesting to see that even in the nineteenth century, states were struggling to decide how frequently fiduciaries should be required to make written reports of financial accounting.  Reporting only at the "end" of the appointment or at intervals of 5 years was sometimes permitted by statutes.  The treatise suggests that while annual accounts facilitate better money management by the guardian, frequent reports also served to "shift the burden to the ward, or other person assailing the account" to make a timely challenge to the report, or it will be presumed "correct." This comment seems to demonstrates the court 's reluctance to expected to be initiate oversight "unless" there was a complaint.  

October 30, 2017 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, October 26, 2017

NM Commission Submits Initial Recommendations for Improving State's Guardianship System

The New Mexico Adult Guardianship Study Commission has submitted its initial status report to the New Mexico Supreme Court.  

As we have reported earlier (here), New Mexico is one of a number of states that experienced high-profile and very serious incidents of alleged financial abuse of adult clients by their court-appointed guardians.

The report makes some 17 recommendations for prompt action aimed at increasing the quality and accountability of guardians, especially so-called "professional guardians or conservators," including: 

  • Require certification by statute or court rule of professional guardians and conservators by a national organization, such as the Center for Guardianship Certification. This recommendation is not intended to preclude New Mexico from developing its own certification requirements.
  • Require bonding or an alternative asset-protection arrangement by statute or court rule for conservators to protect the interests of the individual subject to the conservatorship.
  • Establish stringent reporting and financial accountability measures for conservators, including the following:
        1. require conservators, upon appointment, to sign releases permitting the courts
        to obtain financial documents of protected persons;
        2. require annual reports to include bank and financial statements and any other
        documentation requested by the court auditor, with appropriate protections
        to prevent disclosure of confidential information;
        3. require conservators to maintain a separate trust account for each protected
        person to avoid commingling of funds; and
        4. require conservators to maintain financial records for seven years.

The report warns that "meaningful reform of the guardianship system will not be easy or inexpensive and cannot be achieved by a single branch of government acting alone."

Rather, true change will require the legislature, the executive, and the judiciary to work together in their respective roles to enact the laws, allocate the resources, and implement the changes that are necessary to improve the guardianship system. The Commission therefore offers its initial status report for consideration, not only to the Supreme Court, but to all who are interested in improving the guardianship system.

The Court invites comments on the proposed recommendations, as well as on additional issues identified by the Commission as requiring further study.  The deadline for the comments is November 8, 2017.

My thanks to my good friend Janelle Thibau for sending me timely news of the New Mexico R & R.  Janelle and I started off as lawyers together in Albuquerque just a "few" years ago!  

October 26, 2017 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 25, 2017

More on Guardianships

The ABA Journal ran an article as part of their daily news about some of the cases regarding guardians and questionable acts. Cases raise questions about adult guardianship and lawyer-hospital relationships  focuses on cases in Michigan and South Carolina.  "Cases in Michigan and South Carolina are raising questions about lawyers who receive guardianship appointments as a result of their relationships with hospitals." The story explains that in the Michigan case, the judge noted an agreement between the attorney and the hospital regarding filing petitions concerning certain patients as well as compensation from a third party (hospital).  The South Carolina case involved supposed conflicts of interest, according to the story, when a hospital attorney served as guardian. In addition to discussing the two cases in more depth, the article goes on to discuss the New Yorker article about guardianships in Nevada (see earlier blog posts) and reform activities there.

October 25, 2017 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, October 23, 2017

The Latest in Off-Label Prescriptions for Dementia Patients: "The Little Red Pill"

My thanks to my colleague Dermot Groome for pointing me to the CNN investigative series on "The Little Red Pill Being Pushed on the Elderly." The prescription drug in questions is Nuedexta, approved to treat PseudoBulbar Affect or PBA, a "disorder marked by sudden and uncontrollable laughing or crying." (Perhaps you have seen commercials for treatment of PBA with actor Danny Glover effectively portraying the disorder).   

According to the CNN report:

Since 2012, more than half of all Nuedexta pills have gone to long-term care facilities. The number of pills rose to roughly 14 million in 2016, a jump of nearly 400% in just four years, according to data obtained from QuintilesIMS, which tracks pharmaceutical sales. Total sales of Nuedexta reached almost $300 million that year.
 
Concerns about unnecessary prescription, side effects (including a higher incidence of falls), and federal reimbursements for cost are raised by critics:
 
Nuedexta is approved by the Food and Drug Administration (FDA) to treat anyone with PBA, including those with a variety of neurological conditions such as dementia. But geriatric physicians, dementia researchers and other medical experts told CNN that PBA is extremely rare in dementia patients; several said it affects 5% or less. And state regulators have found doctors inappropriately diagnosing nursing home residents with PBA to justify using Nuedexta to treat patients whose confusion, agitation and unruly behavior make them difficult to manage.
 
 
"There has to be a diagnosis for every drug prescribed, and that diagnosis has to be real ... it cannot be simply made up by a doctor," said Kathryn Locatell, a geriatric physician who helps the California Department of Justice investigate cases of elder abuse in nursing homes. "There is little to no medical literature to support the drug's use in nursing home residents (with dementia) -- the population apparently being targeted."
The article notes that Medicare pays for much of the use of this drug in the nursing home setting, and as we've been reported before on other off label prescriptions of  medications, federal regulators have the power to investigate and sanction improper use (not just off-label use) under the False Claims Act and similar anti-fraud regulations.  

October 23, 2017 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Medicare, Science, Statistics | Permalink | Comments (0)

Friday, October 13, 2017

How Much Should Guardians be Paid?

The National Guardianship Association takes the understandable position that "guardians are entitled to reasonable compensation for their services," while bearing in mind "at all times the responsibility to conserve the person's estate when making decisions regarding providing guardianship services" and in setting their fees.  See NGA Standard 22 on Guardianship Service Fees

Should there be "schedules" for fees, such as hourly fees, or maximum fees? Modern courts often struggle with questions about how to determine fees, and some states, such as Pennsylvania,  have a fairly flexible list of common law (not statutory) factors for the court to consider.  

In a April 2017 trial court opinion in Chester County, PA, for example, the court reviewed $54k in fees for the lawyer appointed to serve as guardian, and another $13k in fees for an attorney the guardians had hired.  According to the court, "Neither had sought leave of court prior to paying these sums out of the principal of the estate; the court learned of this when its auditor reviewed the annual report wherein these payments were disclosed."  The ward in question was 87-years old and a resident in a skilled nursing faciility, with dementia and other health issues.  The court struggled with the bills, commenting the format used was "inordinately difficult to follow" and at least on first review seemed "high for ten (10) months."  For guidance in evaluating the bills, the court did "two things.  It first searched the dearth of cases available for any guidance."  It also called the individuals to discuss the billing formats and learn more about the work completed.  

The Pennsylvania precedent was almost exclusively unpublished opinions, often from trial courts.  The Chester County court recounted some of the history of guardianships, from English times to colonial courts to the present, concluding, "In any event, no reported decisions have been located concerning professional compensation of guardians of the persons.  Apparently, society had no need of their services until more recent times."  

Ultimately, Chester County Court of Common Pleas's Judge Tunnell approved the fees, finding "a number of untoward events which transpired during the year in question," including a serious injury the ward sustained from a fall in the nursing home, additional health related concerns, the decision to relocate her to a different nursing home, and difficulties in selling the home that had remained empty for more than year.  The case had a history of accounting disputes, as evidenced by a 2013 decision by the same judge, although it did not appear anyone had challenged the latest fees reviewed sua sponte by the court  in the 2017 decision.  

In another Pennsylvania opinion, this time from an appellate court but also unpublished, the court observed, apparently with approval, that in Allegheny County, the Guardianship Department in the Orphan's Court uses  "court investigators" to review guardians' requests for payment of fees from the incapacitated person's estate.  See e.g., In re Long, Superior Court of Pennsylvania, February 14, 2017 (not officially reported).  

I'm curious whether our readers have thoughts on "scheduled" fees for guardians?  

October 13, 2017 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Thursday, October 12, 2017

Robert Matava Elder Abuse Prosecution Act of 2017: Elder Abuse Prevention and Prosecution Act

The Robert Matava Elder Abuse Prosecution Act of 2017, Senate Bill 178, has been sent to the President for signature. Here's the summary of the act:

Elder Abuse Prevention and Prosecution Act

TITLE I--SUPPORTING FEDERAL CASES INVOLVING ELDER JUSTICE

(Sec. 101) This bill establishes requirements for the Department of Justice (DOJ) with respect to investigating and prosecuting elder abuse crimes and enforcing elder abuse laws. Specifically, DOJ must:

  • designate Elder Justice Coordinators in federal judicial districts and at DOJ,
  • implement comprehensive training for Federal Bureau of Investigation agents, and
  • establish a working group to provide policy advice.

The Executive Office for United States Attorneys must operate a resource group to assist prosecutors in pursuing elder abuse cases.

The Federal Trade Commission must designate an Elder Justice Coordinator within its Bureau of Consumer Protection.

TITLE II--IMPROVED DATA COLLECTION AND FEDERAL COORDINATION

(Sec. 201) DOJ must establish best practices for data collection on elder abuse.

(Sec. 202) DOJ must collect and publish data on elder abuse cases and investigations. The Department of Health and Human Services (HHS) must provide for publication data on elder abuse cases referred to adult protective services.

TITLE III--ENHANCED VICTIM ASSISTANCE TO ELDER ABUSE SURVIVORS

(Sec. 301) This section expresses the sense of the Senate that: (1) elder abuse involves exploitation of potentially vulnerable individuals; (2) combatting elder abuse requires support for victims and prevention; and (3) the Senate supports a multipronged approach to prevent elder abuse, protect victims, and prosecute perpetrators of elder abuse crimes.

(Sec. 302) DOJ's Office for Victims of Crime must report to Congress on the nature, extent, and amount of funding under the Victims of Crime Act of 1984 for victims of crime who are elders.

TITLE IV--ROBERT MATAVA ELDER ABUSE PROSECUTION ACT OF 2017

Robert Matava Elder Abuse Prosecution Act of 2017

This bill amends the federal criminal code to expand prohibited telemarketing fraud to include "telemarketing or email marketing" fraud. It expands the definition of telemarketing or email marketing to include measures to induce investment for financial profit, participation in a business opportunity, or commitment to a loan.

A defendant convicted of telemarketing or email marketing fraud that targets or victimizes a person over age 55 is subject to an enhanced criminal penalty and mandatory forfeiture.

The bill adds health care fraud to the list of fraud offenses subject to enhanced penalties.

(Sec. 403) DOJ, in coordination with the Elder Justice Coordinating Council, must provide information, training, and technical assistance to help states and local governments investigate, prosecute, prevent, and mitigate the impact of elder abuse, exploitation, and neglect.

(Sec. 404) It grants congressional consent to states to enter into cooperative agreements or compacts to promote and to enforce elder abuse laws. The State Justice Institute must submit legislative proposals to Congress to facilitate such agreements and compacts.

TITLE V--MISCELLANEOUS

(Sec. 501) This section amends title XX (Block Grants to States for Social Services and Elder Justice) of the Social Security Act to specify that HHS may award adult protective services demonstration grants to the highest courts of states to assess adult guardianship and conservatorship proceedings and to implement necessary changes. The highest court of a state that receives a demonstration grant must collaborate with the state's unit on aging and adult protective services agency.

(Sec. 502) The Government Accountability Office (GAO) must review and report on elder justice programs and initiatives in the federal criminal justice system. The GAO must also report on: (1) federal government efforts to monitor the exploitation of older adults in global drug trafficking schemes and criminal enterprises, the incarceration of exploited older adults who are U.S. citizens in foreign court systems, and the total number of elder abuse cases pending in the United States; and (2) the results of federal government intervention with foreign officials on behalf of U.S. citizens who are elder abuse victims in international criminal enterprises.

(Sec. 503) DOJ must report to Congress on its outreach to state and local law enforcement agencies on the process for collaborating with the federal government to investigate and prosecute interstate and international elder financial exploitation cases.

(Sec. 504) DOJ must publish model power of attorney legislation for the purpose of preventing elder abuse.

(Sec. 505) DOJ must publish best practices for improving guardianship proceedings and model legislation related to guardianship proceedings for the purpose of preventing elder abuse.

Note specifically sections 504 and 505.  The text of the enrolled bill can be found here as a pdf.

Stay tuned....

 

October 12, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations | Permalink | Comments (0)

Daughters' Hidden Video Camera In Mother's Nursing Home Documents Caregiver Abuse; 10th Circuit Affirms $1.2 Million Damage Award

The 10th Circuit in Racher v. Westlake Nursing Home Limited Partnership, d/b/a/ Quail Creek Nursing & Rehab Center, affirmed an award of $1.2 million in compensatory damages to the estate of  Mrs. Mayberry,  a 90+ year old resident.  Key evidence included five video recordings, from a camera hidden in the resident's nursing home room by her daughters, that showed:

... [Employee] Gakunga slapping Mrs. Mayberry in the face with latex gloves, wadding up the gloves, stuffing them in Mrs. Mayberry's mouth, and forcibly holding them there as Mrs. Mayberry attempts to push Gakunga's hand away. . . . .  [A second employee] Kaseke is seen in the videos watching this take place. . . . . The videos then show Gakunga and Kaseke roughly lifting Mrs. Mayberry from her wheelchair into bed and Gakunga pushing on Mrs. Mayberry's face in what appears to be an attempt to make her lie down. . . . One clip shows Gakunga pointing her finger at Mrs. Mayberry and apparently scolding her or perhaps threatening her. . . . Finally, the video clips show Gakunga “performing some sort of compressions with both hands to [Mrs. Mayberry's] torso.” . . . .  Plaintiffs assert that this action was intended to force Mrs. Mayberry to empty her bladder so the caretakers would not have to change her diaper as often. . . . .  Quail Creek and the caretakers denied any knowledge of this practice, but acknowledged that there was no medical justification for the action.  

The daughters testified their mother went downhill as a result of the incidents that occurred between February and early April 2012 and that Mrs. Mayberry died in July 2012 "just three months after the abuse was discovered."

One issue on appeal was whether Oklahoma's "statutory limitation on noneconomic damages" of $350,000 was mandatory. Apparently the statutory cap was raised for the first time in a motion to "alter or amend the judgment," 28 days after the judgment was entered in the case and more than a month after the jury trial concluded.   In its September 28, 2017 opinion, the 10th Circuit had an interesting analysis of the interplay between federal rules of civil procedure and the need to "predict" state substantive law in a diversity case,  and "agreed with the plaintiffs that the cap is an affirmative defense that [defendant nursing home] waived."  

October 12, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 11, 2017

Are Guardianship Court "Oversight" Problems Pervasive?

 During the last several years, I've received calls from around the country about possible guardianship "oversight" concerns. And since The New Yorker article came out last week focusing on guardianship issues in Las Vegas Nevada, I've been getting more calls. The question arises: Is there a pervasive problem with court-appointed guardians for older adults in the United States?  

In my opinion, the answer is "no, not pervasive."  At least, that's my answer if the definition of pervasive is "universal," or omnipresent, or rife, or widespread. In the 20+ years I've been working in elder law, I've unfortunately reviewed a lot of cases of exploitation, but it is comparatively rare that I've been asked to examine a court-monitored guardianship where there was a problem created by inadequate attention by the courts, much less active misconduct by the court or agency. Granted, that is just one law professor's experience.

Still, in my opinion, the oversight problems that do exist within the U.S. are significant, periodic, sometimes recurring or persistent, and often have common elements.  The issues can exist in any county court or fiduciary administrative system. Historically, these courts -- sometimes called probate courts, fiduciary courts, surrogate courts, or orphans courts -- depended on the guardians for management of all issues, once the appointments were made. The judges trusted their appointees to take their fiduciary responsibilities seriously. But, as is sometimes said in international relations, the problem can be how best to "trust, but verify" proper behavior. With more elder boomers, there can be increased need for guardians, and thus more potential for guardians to be monitored.

  • For example, in Maricopa County, Arizona, an investigative news series, that began in 2008 with the reporting of Laurie Roberts for the Arizona Republic, described a number of mishandled older adult guardianships.  In some instances, the family members were so busy arguing about money, that the incapacitated elder was ignored, while his or her estate was diminished to pay fees.  Sometimes the question was whether a "full" guardianship was even necessary.  The problems, once investigated not just by journalists but by the courts, resulted in changes in Arizona guardianship law.
  • In Palm Beach County, Florida, complaints about appointment of a particular individual as guardian in a large number of cases, focused on conflict of interest and claims of favoritism by the court, complaints that came from a number of families. Eventually, in one case challenging the system,  a jury reportedly awarded more than  $16 million against two West Palm Beach attorneys for "breach of fiduciary duties."  The complaints also led to state investigations of Florida's entire oversight systems, and brought three years of legislative changes to Florida guardianship laws.
  • Most recently, two co-founders of a nonprofit guardianship company, Ayudando Guardianship, in Bernalillo County, New Mexico were indicted in federal court in July 2017 with criminal charges including conspiracy, mail fraud, aggravated identity theft, and money laundering.  The company was the appointed fiduciary in hundreds of cases. 

Especially when the Clark County, Nevada cases are included in this list of recent challenges to guardianship oversight systems, concerns about proper and objective oversight are real; without a equally real commitment to more careful selection, training, monitoring and accountability for guardians, the problems can be predicted to increase as the baby boomer generation of seniors get to their 70s, 80s, or 90s.  In 2016, the GAO for the United States responded to a U.S. Senate Special Committee on Aging's request for data on "the extent of abuse by guardians," and concluded that "courts lack comprehensive data on older adults in guardianships and elder abuse by guardians, but some courts have limited information."  Unreliable data certainly leaves open the potential for the occasional problems to become pervasive problems.    

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October 11, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (2)

Tuesday, October 10, 2017

Pennsylvania Tightens Requirements for Notaries Public

Effective October 26, 2017, another set of requirements comes into play for notaries public in Pennsylvania. The changes, which became effective in stages over the course of many months, responded to reports of abuses.  Indeed, when I was supervising our Elder Protection Clinic at Dickinson Law,  we would occasionally come into contact with powers of attorney or deed transfers that were allegedly signed in from of a notary as a witness, but which clearly were not.  

On one occasion, we learned that another law office "routinely" had the in-office notary using her official power for documents signed in the home of the attorney's clients.  She was following her boss's direction.  Sadly, our law students had an extra lesson that day on potential obligations to report such violations to the State Bar.  

The most recent changes to Pennsylvania's law include a notary's mandated attendance at training classes. The notary was, even before the latest changes, required to have "personal knowledge" or "satisfactory evidence" of the identity of the individual whose signature was to be notarized, but the most recent changes specified documents that can be used as satisfactory evidence:  "a passport, driver's license or government-issued nondriver identification card, which is current and unexpired," or another form of government identification which is current and "contains the signature or photograph of the individual, and is satisfactory to the notarial officer." 57 Pa.C.S.A. Section 307. A third alternative is documenting identity through "verification on oath . . . of a credible witness," a vague process that seems to raise more red flags than it eliminates. 

Overall, the changes are a sad reflection of the times, not the least of which are the extraordinary opportunities for identity theft triggered by data hackers. Some Pennsylvania elder law attorneys, however, are wondering whether the requirement of current, unexpired government i.d. cards will make it more difficult to meet the needs of disabled, older clients.

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October 10, 2017 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 4, 2017

New Yorker: Article Focuses on Clark County Nevada to Demonstrate Systemic Failures under State Guardianships

We've posted often on the Elder Law Prof Blog about problems with guardianships for older adults, highlighting reports from Nevada, Florida and Arizona, for example.

The New Yorker Magazine offers  "Reporter at Large" Rachel Aviv's feature in its October 9, 2017 issue, where she digs deeply into concerns raised by multiple cases in Clark County, Nevada where a court-favored, appointed guardian, April Parks, was often involved:

Parks drove a Pontiac G-6 convertible with a license plate that read “crtgrdn,” for “court guardian.” In the past twelve years, she had been a guardian for some four hundred wards of the court. Owing to age or disability, they had been deemed incompetent, a legal term that describes those who are unable to make reasoned choices about their lives or their property. As their guardian, Parks had the authority to manage their assets, and to choose where they lived, whom they associated with, and what medical treatment they received. They lost nearly all their civil rights. 

Parks and other individuals, including her husband, were eventually indicted on criminal charges including perjury and theft, "narrowly focused on their double billing and their sloppy accounting," but as The New Yorker piece suggests, the court system itself shares blame for years of failing to impose effective and appropriate oversight over the guardians.  

In the wake of Parks’s indictment, no judges have lost their jobs. Norheim was transferred from guardianship court to dependency court, where he now oversees cases involving abused and neglected children. Shafer is still listed in the Clark County court system as a trustee and as an administrator in several open cases. He did not respond to multiple e-mails and messages left with his bookkeeper, who answered his office phone but would not say whether he was still in practice. He did appear at one of the public meetings for the commission appointed to analyze flaws in the guardianship system. “What started all of this was me,” he said. Then he criticized local media coverage of the issue and said that a television reporter, whom he’d talked to briefly, didn’t know the facts. “The system works,” Shafer went on. “It’s not the guardians you have to be aware of, it’s more family members.” He wore a blue polo shirt, untucked, and his head was shaved. He looked aged, his arms dotted with sun spots, but he spoke confidently and casually. “The only person you folks should be thinking about when you change things is the ward. It’s their money, it’s their life, it’s their time. The family members don’t count.”

There are fundamental issues at the heart of this kind of history.  Necessary and well-managed guardianships, under the best of circumstances, change the lives of individuals in ways that no person would want for him or herself.  But when a guardianship system itself breaks down -- especially where judges or other administrators are unwilling or unable to be self-critical -- the confidence of the public in "the rule of law" is destroyed.     

My thanks to Karen Miller (Florida), Jack Cumming (California), Richard Black (Nevada -- who is also quoted in The New Yorker piece), and Dick Kaplan (University of Illinois Law) for bringing The New Yorker piece to our attention quickly. 

October 4, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, October 3, 2017

Canadian Elder Law Conference - November 2-3, 2017

The Canadian Elder Law Conference  is again hosting a two-day program on the law and policy issues impacting older adults, in Vancouver, British Columbia on November 2-3, 2017.

After taking this course, you will:

  • be better able to identify and address the legal issues that impact your older client
  • be familiar with recent trends, developments, and research in the law with respect to elder law topics such as medical assistance in dying, mental capacity, undue influence, independent legal advice, financial abuse, and adult protection
  • better understand the legal, practical, and ethical issues in relation to older clients with mental capacity and self-neglect issues

The program this year will include a debate on "video surveillance in long-term care," a panel on medically assisted death and advance consent, and a discussion of undue influence and independent legal advice.

For more, see  Coming of Age: Elder Law in Canada and Its Future, including registration information.

October 3, 2017 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Programs/CLEs | Permalink | Comments (0)

Monday, October 2, 2017

"Probable Cause" Prevents Son-in-Law/Agent from Suing for Malicious Prosecution in Elder Fraud Case

The case of Fisher v. King, in federal court in Pennsylvania, strikes me as unusual on several grounds.  It is a civil rights case, alleging malicious prosecution, arising from an investigation of transferred funds from elderly parents, one of whom was in a nursing home, diagnosed with "dementia and frequent confusion."  

Son-in-law John Fisher was financial advisor for his wife's parents, both of whom were in their 80s. He and his wife were charged with "theft by deception, criminal conspiracy, securing execution of documents by deception and deceptive/fraudulent business practices" by Pennsylvania criminal authorities, following an investigation of circumstances under which Fisher's mother-in-law and her husband transferred almost $700k in funds to an account allegedly formed by Fisher with his wife and sister-in-law as the only named account owners.  A key allegation was that at the time of the transfer, the father-in-law was in a locked dementia unit, where he allegedly signed a letter authorizing the transfer, prepared by Fisher, but presented to him by his wife, Fisher's mother-in-law.  The mother-in-law later challenged the transaction as contrary to her understanding and intention.

Son-in-law Fisher, his wife, and his wife's sister were all charged with the fraud counts.  They initially raised as defense that the transactions were part of the mother's larger financial plan, including a gift by the mother to her daughters, but not to her son, their brother.  

As described in court documents, shortly before trial on the criminal charges the two sisters apparently agreed to return the funds to their mother, and, with the "aggrieved party" thus made whole, Fisher and his wife entered into a Non-Trial Disposition that resulted in dismissed of all criminal charges. At that point, you might think that everyone in the troubled family would wipe their brows, say "phew," and head back to their respective homes.

Not so fast.  Fisher then sued the Assistant District Attorney and the investigating police officer in federal court alleging violations under Section 1983 -- malicious prosecution and abuse of process. 

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October 2, 2017 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)