Sunday, February 11, 2018
On February 7, 2018, the Seventh Circuit ruled as a matter of law that language in documentation attempting to create a Special Needs Trust was ambiguous. In its decision in National Foundation for Special Needs Integrity, Inc. v. Reese, the Court resolved the ambiguity in favor of the children of the Missouri woman who had established the trust, using proceeds of her personal injury settlement.
The Court, with jurisdiction that appeared to be based on diversity, ordered an Indiana foundation that was named as the trustee of the account to reimburse the estate of the deceased Missouri woman. The amount awarded is more than $243K, plus prejudgment interest. The decision by itself is interesting, especially as it touches on issues such as the intention of the settlor, a defense of laches and the roles of a law office or others in counseling the Missouri woman, who was reportedly unable to read, on how to complete the trust documents. Even more interesting is news indicating that the foundation was created by "a suspended Indiana attorney facing charges that he stole from other clients' trusts." See The Indiana Lawyer's report on Seventh Circuit Reverses, Orders Special Needs Trust Group to Pay Estate.
In the lawsuit, the foundation argued it was entitled to keep the funds designated in the trust, based on a variety of theories including laches; the laches defense failed when the court, in an extended footnote, observed there was no evidence the foundation ever notified the woman's personal representative of outstanding trust amounts, allowing the PR to believe that any proceeds had been used to reimburse the state for Medicaid expenditures. Instead, the court concluded the foundation simply transferred portions of the mother's account into other accounts, which might have been permitted under certain guidelines, if it had been clear the trust was intended to be a "pooled" special needs trust.
For another "great and timely" discussion (I have that description on good authority!) of the Foundation v. Reese case, see Arizona lawyer Robert Fleming's newsletter here. As Robert says, "the background story . . . reinforces the need for transparency and disclosure in pooled special needs trust administration -- and in fact, in all special needs trust management."
Wednesday, February 7, 2018
Mark your calendars for this webinar from the Elder Justice Initiative scheduled for February 22, 2018 at 2 est, on MDT Member Recruitment and Retention: Building Trust and Traction Here are the learning objectives from the website
Understanding the best practices for recruitment and ongoing engagement of team members.
Exploring real-world examples of relationship- and trust-building strategies.
Friday, January 26, 2018
New Mexico Legislature Considers Comprehensive Reform of Guardianship Laws, Following Fraud & Embezzlement Scandals
In a bipartisan effort, two New Mexico state senators have introduced Senate Bill 19 -- some 187 pages in length -- in an effort to completely overhaul the state's laws governing guardianships in New Mexico. The proposed changes, which largely track the Uniform Law Commission's recommendations for "Guardianship, Conservatorship and Other Protective Arrangements," will make such proceedings open to the public and require more notification of family members about the process. The reform follows high-profile scandals involving two companies that are alleged to have "embezzled millions of dollars of client funds," while appointed-guardians also sometimes restricted family access to their wards.
Hearings on the bill began on January 25, 2018, during the regular 30-day session of the legislature. From the Albuquerque Journal's coverage on the reforms:
Under the bill pending at the Roundhouse, legal guardians would not be able to bar visitors – both in person and via letters and emails – unless they could show the visit would pose significant risk to the individual or if authorized to do so by a court order.
[State Senator and Co-Sponsor of SB 19 Jim White] said the legislation does not call for any additional funding to be appropriated, though it could shift some money from the state guardianship commission to the courts for administrative duties. His bill is the only bill filed so far on the issue of guardianships, though others could be introduced in the coming weeks.
Meanwhile, the proposed law would also permit bonds to be required of conservators – a protection already proposed by the New Mexico guardianship commission and recently put into place by district judges in Albuquerque.
For more on the criminal charges filed against executives at Ayudando Gaurdians Inc. and Desert State Life Management, read Who Guards the Guardians? by Colleen Heild.
January 26, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, January 24, 2018
According to reports from Hawaii media, the state has a growing number of unlicensed long-term care facilities for the elderly and disabled. One critic describes the problem as facilities that have "gone rogue." I strongly suspect that Hawaii isn't alone on the issue, where providers operate in the shadows of the law, seeking to avoid regulations setting minimum standards, authorizing inspections and implementing other state oversight. Operators push back on regulation, citing the costs of compliance. Certainly, I've seen issues in my own state of Pennsylvania, where some operators attempt to change their names or identities to avoid whatever is viewed as the latest or most demanding regulations. I remembering watching as an employee of one long-time, respected provider of "assisted living," chipped those words off the granite sign at the front of the property, part of his boss's effort to avoid Pennsylvania's then "new" regulation of assisted living operations.
Legislators in Hawaii have introduced new legislation in an attempt to plug the oversight holes, but operators are pushing back:
Care home operators, case managers, industry regulators and others filled a conference room Monday at the [Hawaii] Capitol for a tense briefing about the consumer protection, fairness and enforcement issues that these unregulated facilities present.
Rep. John Mizuno, chair of the Health and Human Services Committee, said he and health officials have crafted a bill that they hope cracks down on the problem. “We cannot lose any more kupuna,” he said. “No one else dies. That’s it.”
The situation has gotten to the point that some health officials are worried that Hawaii’s rapidly aging population may end up with unsafe options for their care. “If the Legislature is unable to stop this trend, more licensed facilities will drop out and this will place more seniors at risk,” said John McDermott, who has served as Hawaii’s long-term care ombudsman since 1998.
By the way, "kupuna" is a Hawaiian word for elders, grandparents or other older persons. For more information, read "Why Hawaii's Unlicensed Elder Care Industry Is Out of Control," by Nathan Eagle," and review HB 1911, which seeks to authorize Hawaii's Department of Health to investigate care facilities reporting to be operating without an appropriate certificate or license.
January 24, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Friday, January 19, 2018
UPitt Law Prof Larry Frolik Urges Change in Pennsylvania Guardianship Law to Clarify Lawyer's Role in Representing Alleged Incapacitated Persons
Larry Frolik, University of Pittsburgh Law Professor and all-round elder law guru, responds to a 2016 decision by the Pennsylvania Superior Court for In re Sabatino with a strong call for change in existing guardianship laws. In the abstract for his January 2018 article for the Pennsylvania Bar Association Quarterly on The Role of Counsel for an Alleged Incapacitated Person in Pennsylvania Guardianship Proceedings [currently membership-restricted], he writes:
When a petition is filed requesting that court find an individual to be incapacitated and appoint a guardian for the individual, the alleged incapacitated person [AIP] has a right to counsel. If the individual does not have counsel, the court may, but is not required to, appoint counsel. Whether counsel is hired by the [AIP] or appointed by the court, the question arises as to what is the proper role of counsel. Should counsel act solely as a zealous advocate and attempt to resist the imposition of the guardianship if so directed by the [AIP] or should counsel act in the best interest of the person with counsel making the determination of what is in the person's best interest?
A 2016 Superior Court case considered that issue and concluded that if the [AIP] desired not to have a guardian, counsel should so inform the court, but counsel, acting in what counsel believed was the person's best interest, could also tell the court that counsel believed that the person needed a guardian. That holding is not consistent with the fundamental obligation of counsel to advocate for what the client, the [AIP], desires. Counsel should not be making an independent determination that the person would be better served if a guardian were to be appointed. The decisions as to whether an [AIP] is legally incapacitated and, if so, whether the appointment of a guardian is appropriate, are decisions that only a court should make.
The Pennsylvania Legislature should amend the law of guardianship to clarify that the role of counsel for an [AIP] is that of a zealous advocate, and that counsel should not act in what counsel believes are the person's best interest. If the Legislature does not act, in the future courts should reexamine the issue and rule that counsel should act solely as a zealous advocate and not attempt to promote the person's best interest.
January 19, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, January 18, 2018
There's been a lot of buzz after that video surfaced of a hospital patient left at a bus stop just in a hospital gown. NPR ran a follow up story, Why Was A Baltimore Patient Discharged At A Bus Stop In Just A Gown? The president and CEO of the hospital in a subsequent press conference indicated that the event was isolated and those involved would answer for their actions. There is a lot we don't know about the story (and some we may never know because of privacy issues). CBS then ran a story from the mother of the patient. In the story Mother calls hospital "callous and heartless" for leaving her daughter in the cold, the mother explains that her daughter, the patient, has mental illness.
How is this different, if at all, than granny dumping, where a family member might abandon an elder relative at the emergency room? I did a quick google search to see if I turned up any recent articles on granny dumping, and didn't really find much, except for this one from a year ago, Japanese people who can't afford elder care are reviving a practice known as 'granny dumping'.
What's your take? Is this not specifically happening much, if at all, in the US any more?
January 18, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink
Wednesday, January 17, 2018
I've sat in on dozens of mental acuity screening exams for individuals exhibiting indications of some form of dementia.
Regarding the "perfect score" reportedly received by President Donald Trump on a mental acuity screening test during his January health exam, it may be helpful to consider what is -- and isn't -- covered by such assessments. One view is provided in an opinion piece this week in the Washington Post, using history from a criminal case where Brooke Astor's son and an attorney were found guilty of exploiting her alleged mental incapacity. From the article:
On its surface, the Montreal Cognitive Assessment (MoCA) test seems pretty easy. Can you draw a three-dimensional cube? Can you identify these various animals? Can you draw a clock? Can you repeat back the phrase, “The cat always hid under the couch when dogs were in the room”? . . .
If you look at the test, it’s pretty hard to see how you could not score a 30. You see a picture of a lion and have to identify it as a lion? That old joke about how the elderly and toddlers are subject to the same indignities seems pertinent here: Is this really the bar that needs to be met to demonstrate full mental capabilities?
Well, according to those who study dementia and other mental deterioration, yes.
In 2009, I spent six months serving on a jury in the state of New York that was asked to judge the guilt or innocence of a man named Anthony Marshall. Marshall was the son of Brooke Astor, a New York socialite and heiress to the much-diminished Astor fortune. If you’ve ever traveled to New York, you’ve encountered the name: Astor Place, the Waldorf-Astoria or the Astoria neighborhood in Queens. Marshall was accused of having taken advantage of Astor’s diminished mental state to change her will without her being aware of the changes made. Ultimately, the 12 members of the jury found Marshall guilty of several charges.
Over the course of that trial, we were presented with a great deal of information about how doctors assess the mental capabilities of a patient. This was critical to the prosecution; were they not able to prove that Astor’s mental state was diminished, it undercut their argument that Marshall had acted without his mother’s consent. As such, expert witnesses testified about their personal examinations of Astor and others spoke to the reliability of the tests.
Central to that case was one of the components of the MoCA test: drawing a clock. Astor was asked repeatedly to draw analog clocks as a test of her mental acuity. On more than one occasion, she was unable to do so properly. . . .
The point is not that the test is easy. The point is that an inability to complete aspects of the test reveals different types of mental decline. The clock test is about executive brain function: memory, planning ahead. The different parts of the MoCA are labeled according to what they test, with the clock test falling under “visuospatial/executive.” Questions about the current year and date are under “orientation.” The request to identify a drawing of a camel is under “naming.” In the test’s scoring instructions, it explains what is covered: “attention and concentration, executive functions, memory, language, visuoconstructional skills, conceptual thinking, calculations and orientation.”
It is, as Trump’s doctor noted, a tool for identifying early signs of mental deterioration, like the mental version of a blood sample on which your doctor runs a battery of tests. It’s not the SAT; it’s a screening device.
For more, read Why You May Be Misunderstanding the Mental Test that Trump Passed with Flying Colors, by Philip Bump.
January 17, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Science | Permalink | Comments (0)
FINRA has released FAQs specifically to address elder financial exploitation. Frequently Asked Questions Regarding FINRA Rules Relating to Financial Exploitation of Seniors explains the new rules that take effect on February 5, 2018. "[T]he SEC approved: (1) the adoption of new FINRA Rule 2165 (Financial Exploitation of Specified Adults) to permit members to place temporary holds on disbursements of funds or securities from the accounts of specified customers where there is a reasonable belief of financial exploitation of these customers; and (2) amendments to FINRA Rule 4512 (Customer Account Information) to require members to make reasonable efforts to obtain the name of and contact information for a trusted contact person (“trusted contact”) for a customer’s account."(citations omitted) FAQs 1 and 2 deal with temporary holds, 3 with trusted contacts, and 4 with disclosures. The FAQ are available here.
Thursday, January 4, 2018
The National Adult Protective Services Association National Committee for the Prevention of Elder Abuse have released a new Research to Practice brief, Social support can diminish negative effects of elder abuse.
Here is an excerpt of the summary of the research
In general, compared to non-victims, victims of elder abuse reported higher rates of Major Depressive Disorder (MDD), Generalized Anxiety Dis-order (GAD), Post-Traumatic Stress Disorder (PTSD), and poorer self-reported health. Depression and PTSD in particular appeared to be most impacted by mistreatment. However, the level of perceived social support during the past month protected against the negative effects of mis-treatment, with the exception of PTSD outcomes. In particular, social support even seemed to undo the effects of mistreatment on GAD symptoms and self-reported health outcomes. This finding about the important protective effects of social support is especially meaningful and interesting, given that a current aspect of functioning (i.e., how much social support someone feels that they are receiving) seems to lessen the nega-tive impact of a past event that occurred many years prior.
Wednesday, December 27, 2017
DOJ's office on Violence vs. Women (OVW) is offering a 5-part webinar series on Abuse in Later Life. The webinar series is free. The series will be presented jointly by the National Clearinghouse on Abuse in Later Life (NCALL) and The ABA Commission on Domestic and Sexual Violence. The 5 parts will cover
- January 25, 2018 Abuse in Later Life Overview
- February 8, 2018 Forming the Relationship with your Client
- February 22, 2018 Client Goal-setting and Non-litigation Responses
- March 8, 2018 Legal Resolutions and Remedies
- March 22, 2018 Bringing the Case-Trial Skills
All the webinars are offered at 1:30 est. To register click here
Tuesday, December 26, 2017
The DOJ Elder Justice Initiative is holding a free webinar on January 12, 2018 at 2 est on What Hotline Workers Need To Know About Elder Abuse. To register, click here. Here's the info about the webinar
Julie Childs, J.D., Consultant to the U.S. Department of Justice Elder Justice Initiative, hosts a discussion with Maria Shumar, Victim Specialist Consultant to the U.S. Department of Justice Elder Justice Initiative, and Keeley Frank, Senior Service Specialist from the National Center for Victims of Crime, on assessing and responding appropriately to calls from older adults who may have experienced elder abuse. We’ll discuss case examples to provide hotline workers tips on how to assist these callers and direct them to relevant resources and services.
Friday, December 22, 2017
For those of you from Florida, The Florida Supreme Court’s Guardianship Workgroup and Florida’s Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS) will be holding a public hearing on Thursday, February 1, 2018 at the Orange County Courthouse from 4-7 p.m. The courthouse address is 425 North Orange Avenue, and the hearing will take place in Suite 180. According to the announcement
Members of the public will be able to share their concerns about guardianship and to identify possible solutions for those concerns. This event will help the Guardianship Workgroup and Florida’s WINGS advance guardianship reforms and increase the effectiveness of Florida’s guardianship systems.... Speakers are asked to address one of two questions:  If you could make one change in Florida’s guardianship system, what would it be? OR ...  How can courts improve their processes to better ensure protection of the person, property, and rights of individuals who are under guardianship or who need assistance making decisions? Comments should be succinct. A time limit will be imposed.
There are other ways to make your voice heard. Another public input event will take place in February in Central Florida. Comments may also be submitted through the WINGS website: https://flwings.flcourts.org/.
December 22, 2017 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)
Friday, December 15, 2017
Are you familiar with the National Center on Law and Elder Rights? If you are an academic teaching courses about any aspect of elder law, disability law, Medicare or Medicaid, you will want to know more about this resource. If you are working in a legal services organization that represents older clients or disabled adult clients, you will want to now about this resource. If you are a young lawyer and just handling your first case involving home-based or facility-based care for older persons who are can't afford private pay options, you will definitely want to know about this resource. In fact, if you are a long-time lawyer representing families who are struggling to find their way through an "elder care" scenario, you too might benefit from an educational "tune up" on available benefits. And the very good news? This is a free resource.
The National Center on Law and Elder Rights (NCLER) was established in 2016 by the federal Administration for Community Living. The new entity is, in essence, a partnership project, with the goal of providing a "one-stop resource for law and aging network professionals" who serve older adults who need economic and social care assistance. Justice in Aging (formerly the National Senior Citizens Law Center) which has primary offices on the east and west coast is a key partner, working with the American Bar Association's Commission on Law and Aging, the National Consumer Law Center (NCLC), and the Center for Social Gerontology (TCSG). Attorneys at these four NCLER partners provide substantive expertise, including preparation of materials available in a variety of formats, such as free webinars on a host of hot topics. The Directing Attorney is Jennifer Goldberg from Justice in Aging and the Project Manager is attorney Fay Gordon.
It strikes me that a very unique way in which NCLER will be a valuable resource is through what the offer as "case consultations" for attorneys and other professionals. Think about that -- you may have long-experience with one branch of "elder law" such as Medicaid applications, but you have never before handled an elder abuse case with a bankruptcy problem. Here is the way to potentially get experienced guidance!
The web platform for NCLER offers a deep menu of resources, including recordings of very recent webinars and information on future events. I recently signed up for a January 2018 webinar program on elder financial exploitation and even though it is a "basics" session I can tell I'll hear about a new tools and possible remedies, as the presenters are Charlie Sabatino and David Godfrey. I just watched a recording of another recent webinar and it was very clear and packed with useful information. There is a regular schedule for training sessions -- with "basics" on the second Tuesday of every month and more advanced training sessions on the third Wednesday every month.
I confess that somehow NCLER wasn't on my radar screen until recently (probably because my sabbatical last year put me about a year behind on emails -- seriously!) but I'm excited to know about it now.
December 15, 2017 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Social Security, Web/Tech, Webinars | Permalink | Comments (0)
Wednesday, December 13, 2017
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.
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
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
- 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.
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
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
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)
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
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 conditions—such as ageism—that 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.
Monday, November 20, 2017
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
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)