Lombardo’s petition claimed that no specific action on his part was given to justify the measures.
Source/more: CBS Chicago.
Sunday, March 9, 2014
In an effort to make young people aware of the tragedy of elder abuse, Attorney General Tom Horne and the Arizona Elder Abuse Coalition have partnered in the 2014 “Why Should I Care About Elder Abuse?” Junior High School Arts Competition. “This competition increases awareness of elder abuse to the younger generations,” said Horne. “While my office continues to prosecute perpetrators of elder abuse, only through awareness can we stop abuse before it begins.”
Submissions of poster art designs must be received by 5p.m. on May 2, 2014. Contest results will be announced in May. Statewide contest winners will receive a first, second and third place prize of $100, $75, $50, and five honorable mentions will receive $25. Winning artworks will be printed on a poster to be distributed as part of the statewide Elder Abuse Awareness campaign held to coincide with World Elder Abuse Awareness Day on June 15, 2014.
Thursday, March 6, 2014
In companion appellate cases, a brother and sister argued the Commonwealth of Pennsylvania was "collaterally estopped or otherwise barred by the constitution and/or statute" from bringing criminal charges against them arising from payments from a trust account, because of a civil order "approving" the final accounting in the estate. Pointing out that the state was not a "party" to the Orphan's Court proceeding, even if it had an interest in proper disbursement of estate funds, the Pennsylvania Superior Court rejected the estoppel arguments as a "matter of law."
The Court observed, "As [Charles] McCullough has indentified no ruling or filing in the certified record that made the Commonwealth a party to the Orphan's Court proceeding, we conclude that it was not a party. As such, collateral estoppel cannot apply."
The rulings in Commonwealth v. Charles McCullough and Commonwealth v. Kathleen McCullough, decided on February 27, allow the siblings' cases to go forward on multiple criminal counts, including allegations of theft by unlawful taking and conspiracy. The allegations go back to 2007, with multiple continuances of the scheduled trial dates.
The court appeared to credit the Commonwealth's theory that the complexity of the case was largely the result of the brother, a licensed attorney, who "intentionally obfuscated his roles as trustee and agent," creating confusion on the part of the bank, a co-trustee. The brother was charged with "24 crimes arising from his actions as an agent and co-trustee for Shirley Jordan, now deceased. Jordan was approximately 90 years old, a widow without any children, and living in a senior living center when she executed a springing power of attorney in favor of McCollough." The Court observed that it was estimated that "Jordan had assets of approximately fourteen million dollars at the time."
Charles is accused of misusing Jordan's assets for his own benefit (including an alleged $10,000 gift to a charity allegedly connected to his family) and of arranging for his sister to be hired at an "exorbitant" rate of $60 per hour for companion services for the elderly woman, as compared to a "Department of Labor estimate of average wages of $8.63 to $9.74 per hour."
The appellate opinions in the cases are fairly dry. In fact, the sister was charged with theft of what, at first blush, seems like a fairly small sum, $4,575.01.
The larger back story, however, includes the allegation that the sister was "hired" as a companion by her brother, using his authority under a Power of Attorney, just weeks after she had been fired and accused of misappropriating more than $1 million from her previous corporate employer. In a separate criminal proceeding, Kathleen McCullough was convicted in 2010 of theft from two companies that employed her, as detailed in the Pittsburgh Post-Gazette.
Wednesday, February 26, 2014
Last week I blogged about tax questions facing some nonprofit senior living operations, especially nonprofit Continuing Care Retirement Communities (CCRCs). This week, we pass on news of a federal court suit filed by residents of a for-profit CCRC, challenging the company's accounting and allocation of fees, especially entrance fees, paid by the residents.
Residents of Vi of Palo Alto (formerly operating in Palo Alto as "Classic Residences by Hyatt") in California are challenging what could be described as "upstream" diversion of corporate assets to the parent company, CC-Palo Alto Inc. They contend the diversion includes money which should have been protected to fund local operations or to secure promised "refunds" of entrance fees. Further, the residents allege the diversion of money has triggered a higher tax burden on the local operation, a burden they allege has improperly increased the monthly maintenance fees also charged to residents. According to the February 10, 2014 complaint, Vi of Palo Alto is running a multi-million dollar deficit and the residents point to the existence of actuarial opinions that support their allegations. The complaint alleges breach of contract, common law theories of concealment, misrepresentation and breach of fiduciary duty, and statutory theories of misconduct, including alleged violation of California's Elder Abuse laws.
Representatives of the company deny the allegations, as reported in detail in Senior Housing News on February 23. A previous resident class action filed in state court against a Classic Residence of Hyatt CCRC, now called Vi of La Jolla, also in California, settled in 2008.
Wednesday, February 12, 2014
Does your state have a statutory cause of action for "elder abuse?" While all 50 states have some form of older adult protective service legislation that authorizes state authorities to investigate and intervene when reports are made of suspected abuse, not every state recognizes the right of the affected individual to seek damages or other relief from the perpetrator by proving violation of those same laws. In states that do recognize a private right of action, the statutory grounds may provide a clear set of elements for proof of abuse, neglect, abandonment, or financial exploitation, thus supplementing the common law, and may also provide the prevailing party (sometimes limited to prevailing plaintiffs) with a right to recover attorneys fees.
California is probably the state with the best known statute authorizing private suits, including a right to seek attorneys fees, at Cal. Welf. & Inst. Code Section 15657 et seq. California's law was first adopted in 1991 as the Elder Abuse and Dependent Adult Civil Protection Act.
However, the history of application of California's law has not been trouble-free. In "Why Many Meritorious Elder Abuse Cases in California Are Not Litigated," (Winter 2013 Student Note, University of San Francisco Law Review), the author identifies several factors negatively affecting the likelihood of victim recovery, including lack of counsel willing to take cases, evidentiary issues such as confusion over burdens of proof, conflict within the victim's family affecting the lawyer-client relationship, and pressures to change or limit relief urged by institutional defendants.
Monday, February 10, 2014
Florida elder law and estate planning attorney Carla-Michelle Adams observes that state laws, such as that of her home state, are often silent on whether a guardianship determines the right of a ward to possess or access guns. In an editorial column for the Florida Bar Journal in December 2013, "Grandparents, Guns and Guardianship: Incapacity and the Right to Bear Arms," she urges clarification of state laws to avoid confusion under the Constitution, and contends that guardianship orders should specifically address gun posession:
"It is imperative that the right to bear arms is effectively removed by order of the court upon a finding of incapacity as a preventative measure for the ward and the community at large. Without legislation specifically indicating that the right to bear arms shall be subject to elimination upon a finding of incapacity, there is a question as to whether the Second Amendment right is subject to retention by the mentally incapacitated ward; the [Florida] statute is ambiguous to this end."
Sunday, February 9, 2014
Recently an individual contacted me with a fact pattern to present on our Blog, a variation on what we've written about in the past. Here are the basics. I've assigned some gender roles to make the fact pattern easier to follow:
The daughter of an older parent wants to know whether she has a legal "duty" to interfere with her brother's role in the life of their parent, where it appears the brother is failing to either apply for Medicaid or otherwise pay the parent's rehabilitation facility. The parent is not unhappy with the son's actions (or rather, inaction), and in fact declined to give power of attorney to the daughter, even when told of a likely "eviction" for nonpayment of the bill. The parent has mostly recovered from the medical crisis that triggered the need for care -- and just wants to go home. Parent has made it clear to daughter that her help is "unnecessary."
The complication is the size of the unpaid bill, more than $100,000. Apparently the care facility, approved to receive Medicare and Medicaid, is now demanding that the daughter pay the bill. Apparently no one applied for Medicaid and it is unclear whether Medicare ever paid. Daughter doesn't know much about her parent's income, but assumes it is limited and probably the only asset is a house, where the widowed parent lives when not in a hospital or in a care facility, and where the brother also resides.
The rehab facility is in Pennsylvania, home to "filial support" laws that have been enforced against adult children, with or without evidence of fault on the part of the child who is sued. Under Pennsylvania's law, those with statutory standing to pursue a support claim include a "person" who has provided care or maintenance, and that has been interpreted to include residential care facilities. We've discussed tough filial support decisions before on this Blog, including Health Care & Retirement Corp. of America, v. Pittas, (Pa. Super. Ct. 2012).
Thus, a lawyer is probably going to have to break the bad news to the daughter that the facility arguably has a potentially viable claim under 23 Pa.C.S.A. Section 4603. Daughter would appear to have some equitable defenses, including laches, but nothing that is expressly provided in the Pennsylvania statute. But who can afford to defend such a case? The facility appears to be using the child's potential liability under filial support laws to insist the daughter take action, either to obtain a guardianship or other order that would permit her (force her?) to apply for Medicaid -- and the threat may work. The longer she waits, the tougher it will be to get sufficient retroactive coverage. But in this instance, it is not clear whether the parent's capacity is impaired, or whether the parent is simply following a long pattern, even if unwise, of preferring one child's "help" over the other.
The moral question of "Am I my brother's keeper," becomes a Family Keeper's Dilemma, when you add in the third part of the triangle, a parent in need of care or protection, against their will. And the moral question becomes a legal liability question, when a filial support law that permits third-party suits is involved.
For another Family Keeper's Dilemma, see the Washington Court of Appeals' January 14 decision, "published in part," in the case of In re Knight, addressing the level of proof required for one son to obtain a Vulnerable Adult Protection Order, to prevent his brother, with a mental health history and a criminal record, from continuing to live with or near their 83-year-old mother. The mother opposed the protection order.
Wednesday, January 22, 2014
Via CBS Chicago:
Wisecracking Chicago Outfit killer Joseph “Joey the Clown” Lombardo claims he is being subjected to “elder abuse” as a result of being placed in solitary confinement last year in a North Carolina federal prison. Lombardo, 84, was sentenced to life in prison for murder and racketeering in 2009. He has since been confined to a wheelchair and has been a “model prisoner,” according to court papers filed in Chicago by his attorneys. Nevertheless, in April of last year, the attorney general placed Lombardo under “special administrative measures” that restrict his access to mail, telephone and visitors, citing “Lombardo’s proclivity for violence.”
Lombardo’s petition claimed that no specific action on his part was given to justify the measures.
Source/more: CBS Chicago.
Friday, December 13, 2013
Pennsylvania's House of Representatives has been holding a series of hearings on elder abuse, in anticipation of potential amendments to the state's Older Adult Protective Services Act. The hearings offer presentations and panel discussions with experts speaking from different perspectives, including administration, law enforcement, providers, and advocates from various organizations.
I was invited to speak at the last panel on the topic of "financial exploitation," as a member of the Pennsylvania Bar Association's Elder Law Section, and because of my experience as the former head of Penn State Dickinson's Elder Protection Clinic. [UPDATE: Here's a link to my written testimony, submitted in advance of hearing.] Other speakers included representatives of the Pennsylvania Bankers Association; community banks; credit unions; and from Area Agencies on Aging that are charged with investigation of reports of suspected abuse. A particularly strong speaker was Linda Mill, a certified financial examiner and former banker, who is now the investigations manager for Temple University's Institute on Protective Services.
During the bankers' presentations, speakers emphasized their institutions' training for all levels of personnel to spot red flags of abuse. This was part of their argument against any need for the state to adopt "mandatory reporting" of suspected abuse by banks and other financial institutions. In contrast, Mills testified that during the last ten years, despite her history of working on the bankers' side, she had come to the personal conclusion that mandatory reporting is necessary in order to provide more timely, effective investigation by public authorities. Mills pointed to Maryland's 2012 adoption of mandatory reporting as precedent.
The interaction between panelists and legislators was robust. For example, Committee Co-Chair Steve Samuelson (in the photo on the right, seated next to Chairman Tim Hennessey) asked whether agents under powers of attorney should be required to file annual reports to facilitate greater accountability. Representative Stephen McCarter asked about the practicality of "bonding" for agents using POAs. Representative Harold English had a detailed list, including the possibility of "payback" to fund investigative services and mandatory "recording" of current documents in order to make it clearer about which POAs are "in effect." He also expressed concern about annuity sales to elders.
Draft legislation updating Pennsylvania's Older Adult Protective Services Act is expected to circulate for comment later this month.
Special thanks to Eric Kovac from the Pennsylvania Bankers Association for sharing copies of his "insider" photos from the hearing.
Thursday, December 12, 2013
Pennsylvania's Department of Aging (PDA) has made public a long-awaited report on "The State of Guardianships in Pennsylvania." PDA commissioned the Center for Advocacy for the Rights and Interests of the Elderly (CARIE), a nonprofit organization based in Philadelphia, to identify, research and analyze current approaches to guardianship around the state. Using a multi-faceted research design to collect information on current practices from a host of sources, CARIE was able to tackle some of the toughest systemic questions, including:
CARIE has made specific recommendations for changes to improve the Pennsylvania system (systems?) and thereby better protect the rights of vulnerable individuals. PDA seems to have made the decision not to publish CARIE's recommendations as part of the report, so we'll have to wait for a separate release. But, I suspect readers will get a strong idea of the recommendations from reading the report on CARIE's fact investigation. Feel free to add your reactions and comments below.
Thanks to Attorney Alissa Halperin, a co-director for the CARIE research team, for alerting us to the public release of the study.
Thursday, November 28, 2013
Devolution, the process in the United Kingdom by which Scotland, Wales and Northern Ireland are enacting domestic laws and policies separate from the laws of England, has opened important opportunities to consider the needs of older persons.
Over the Thanksgiving weekend, I'm in Northern Ireland, working with great colleagues at Queen's University Belfast, on two projects commissioned by the Commissioner of Older People Northern Ireland (COPNI). One team is working on elder abuse and the other project focuses on social care, with each team employing comparative analysis from the U.S., Canada, Ireland, India and other nations in framing proposals for future laws or policies to be recommended for adoption in Northern Ireland.
Tuesday, November 26, 2013
While working in Europe, I first heard the label "befrienders," as applied to people who work their way into the lives of disabled or elderly persons. The relationship often starts with the befriender doing small, helpful tasks; over time, the helper gains trust that enables him or her to have a greater role in the elder's life, thus opening the door to exploitation of the person's diminishing powers of judgment, while gaining complete control over finances.
On November 5, the New Hampshire Supreme Court affirmed convictions on nine of eleven criminal counts for "befriender" Karen Gagne, accused of stealing over $500,000 from a ninety year old woman in a retirement center. The case is State of New Hampshire v. Karen Gagne, 2013 WL 512499 (2013).
I plan to write more in the future about the technical details of the crimes charged in this context, but one of the clear lessons from the history in this particular case is how much time it may take for the befriending pattern to develop and "ripen" into fraud that is recognized by third-parties. For example, Karen Gagne's involvement with the victim spanned years:
"The defendant met the victim in the 1980s when the defendant performed landscaping services at the victim's home. The two became friends and subsequently lived together as companions in the victim's home for at least one year until the victim asked the defendant to move out. In the summer of 2006, the defendant and the victim rekindled their friendship. The victim moved to Pleasant View Retirement Home (Pleasant View), and the defendant began driving the victim to doctors' appointments and nail appointments, and taking her to lunch. In addition, although the victim had previously had an accountant pay her larger bills, the defendant began handling the victim's bills, including payment of her rent at Pleasant View."
At some point, "helpful" friend Gagne began liquidating the elder woman's annuities or other property and borrowing additional money under the elder's name.
The fact that Gagne was giving herself gifts might not have been discovered, except that by the fall of 2008, Gagne was no longer making regular rent payments to the retirement home. She offered excuses, such as blaming a "grandson or nephew" for stealing money, and claimed that she, Gagne, was trying to "recover" the money in order to pay the victim's bills. By late 2009, the victim was so far behind in rental payments -- and the excuses had become so unbelievable -- that the facility's executive director contacted the Attorney General's office, thus leading to the criminal charges.
Having sat through trials of similar cases, and having read transcripts of other cases, I can just imagine how Gagne would try to justify her thefts, arguing that "her friend wanted her to have the money" to explain why the 90-year old woman had "signed" checks she wrote out for her. In fact, this "gift" argument actually worked as a defense to two of the criminal counts in the case, where the older woman had personal involvement in transactions. Nonetheless, on the majority of criminal counts, the Supreme Court concluded "the defendant was not privileged to infringe upon the victim's interest" in joint accounts, nor was Gagne justified in misapplication of funds she was handling as a "financial representative" of the elder.
Karen Gagne was originally sentenced to "an aggregate of 10 to 30 years in New Hampshire State Prison for Woman." It is not clear from the opinion whether remand on the overturn of two of the elevent counts would trigger a resentencing.
New Hampshire, by the way, is the state that recently passed a new law, permitting long-term care facilities to sue "fiduciaries" who misuse assets of a resident, if that misuse results in "disqualification" of the resident for Medicaid, as we discussed earlier this month.
Thursday, November 21, 2013
For the past several days, I’ve been in Korea at the invitation of Prof. Je Cheol Ung, who is Professor of Law at Hanyang University in Seoul. I’ve had the opportunity to speak with Korean experts about Korean’s new guardianship law, teach first year law students a bit about elder law, and participate in an important conference sponsored by the Korea Association on Comparative Private Law on the implementation of the new law. My hosts have been wonderful, and I’ve been deeply impressed by the commitment of academics, lawyers, judges, and advocates working for the rights of those in Korean society who have disabilities. Seoul is a fabulous city–to be honest, I had no idea I would like it so much. It has been a great trip, and I hope I will have the opportunity to visit again soon.
Today, I meet Prof. Ko Se-Il, from Pai Chai University in Daejeon, who is attending the conference. I was thrilled to learn that he is a regular reader of the Elder Law Prof Blog! I was very happy to know that the reach of the Blog extends to our colleagues on the other side of the world. Prof. Ko, thanks for passing along that information! We’ll try to keep things interesting for you and your colleages.
I hope to post more about the conference later this week.
Somehow I had missed this particular incarnation of predatory lending. The National Consumer Law Center (NCLC) recently circulated a consumer impact statement on pension-based loan scams. Often advertised as "cash advances," in reality the individual is agreeing to assign future pension payments to the lender, with repayment terms that include an outrageously high interest rate. In 2011, NCLC and attorneys with the National Association of Consumer Advocacy were successful in a class action suit in state court in California, in which they challenged loans requiring "assignments" of military pay or pensions as violating federal law. The court ordered restitution to the class members.
The New York Times ran a 2013 feature on "Loans Borrowed Against Pensions Squeeze Retirees," by Jessica Silver-Greenberg, part of a series on "A Vulnerable Age," that examined financial traps that can face older adults, especially during a tight economy. A sidebar to the article detailed an example of a loan to a disabled military veteran for $10,000, with a $353 monthly payment for 60 months, leading to total costs over the life of the loan of $21,180, representing an interest rate of 36.4%.
Thursday, November 14, 2013
Via the Senate Special Committee on Aging:
If you or someone you know suspect you’ve been victim of a scam or fraud aimed at seniors, the U.S. Senate Special Committee on Aging has set up a new toll-free hotline to help. The hotline was unveiled today to make it easier for senior citizens to report suspected fraud and receive assistance. It will be staffed by a team of committee investigators weekdays from 9 a.m. to 5 p.m. EST. The investigators, who have experience with investment scams, identity theft, bogus sweepstakes and lottery schemes, Medicare and Social Security fraud, and a variety of other senior exploitation issues, will directly examine complaints and, if appropriate, refer them to the proper authorities.
Anyone with information about suspected fraud can call the toll-free fraud hotline at 1-855-303-9470, or contact the committee through its website, located at http://www.aging.senate.gov/fraud-hotline. As chairman and ranking member of the committee, Sens. Bill Nelson (D-FL) and Susan Collins (R-ME) have made consumer protection and fraud prevention a primary focus of the committee’s work. This year the panel has held hearings examining Jamaican lottery scams, tax-related identity theft, Social Security fraud and payday loans impact on seniors.
The hotline’s unveiling also coincides with the committee’s launch of an enhanced senior-friendly website. The site’s new features include large print, simple navigation and an uncluttered layout that enables seniors to find information more easily and conveniently. Online visitors can also increase text size, change colors or view a text-only version of the site.
Tuesday, November 12, 2013
A new report highlighting the need for urgent action to improve residential aged care includes case studies of people being shackled, assaulted, sedated against their wishes and turned into "zombies". Australian of the Year and Alzheimer's Australia national president, Ita Buttrose, today launched the report calling for good quality residential aged care to be the norm. Quality of Residential Care: the Consumer Perspective acknowledges there are dedicated, compassionate people who work hard to provide quality care but notes there are instances of poor quality care. In 2012 there were more than 220,000 people in Australia in residential aged care in more than 2700 facilities across the nation.
"What worries me is that a minority of facilities are not providing good care, and that residents are not being respected and, in some cases, are subjected to physical or psychological abuse," Buttrose said. "Since becoming president of Alzheimer's Australia many consumers have shared disturbing stories with me of physical, psychological and sexual abuse, inappropriate use of restraint, unreported assaults and people in extreme pain at end of life not having access to palliative care. "The objective of the report developed by Alzheimer's Australia is to articulate the concerns of consumers, set out for discussion possible strategies to address them and to seek a higher priority for tackling them.
"It proposes strategies to bring providers, staff and consumers together to address the systemic issues in the aged care system that have led to breakdowns in quality care. Funding issues are important but equally so are the leadership and culture that respects the rights and dignity of older people. Common decency and respect costs nothing."
Source: Brisbane Courier Mail
Sunday, November 10, 2013
So-called "Slayer Rules" bar a murderer from inheriting from his victim, and often apply not only to intestate succession but also to gifts made under wills or nonprobate transfers. The bar may arise by common law, often rooted in equity, or statute.
As Harvard Law Professor Robert Sitkoff summarizes well in his 9th edition (Dukeminier) of Wills, Trusts & Estates, "Nearly every state has enacted a statute dealing with the rights of a killer in the estate of a victim, but the details of these statutes vary considerably and often leave gaps to be resolved by the courts."
However, states have also been expanding the notion of "no profit" from wrongdoing to include abusers -- and theories regarding elder abuse appear to be part of the reason.
For example, in a 2013 case, the Washington Supreme Court analyzed application of a 2009 amendment of that state's slayer statute to include "abusers," defined as "any person who participates, either as a principal or an accessory before the fact, in the willful and unlawful financial exploitation of a vulnerable adult." The court concluded in a 5-4 decision that the date of filing of a petition to declare a beneficiary an abuser serves as the trigger for timing questions.
The Washington case involved allegations made by three surviving children against their father's second wife. The father was in his late eighties when he married the younger woman, who was younger by fifty years. The history of the case includes a discussion of the father's dementia, and allegations the wife made large transfers to herself and others before his death. See In re Estate of Haviland, 301 P.3d 31 (Wash. 2013).
In 2012, Michigan amended its slayer statute to include abusers, as part of a series of changes to state laws reportedly intended to provide better protection for elderly and vulnerable adults. Cooley Law Professor Linda Kisabeth analyzes the Michigan changes in her recent article "Slayer Statutes and Elder Abuse: Good Intentions, Right Results? Does Michigan's Amended Slayer Statute Do Enough to Protect the Elderly?" in 26 Quinnipiac Prob. L. J. 273 (2013).
And for an interesting alternative take on slayer laws in their more traditional application, to "murderers," see the 2013 article by Professor Carla Spivack (Okla.City Law), "Killers Shouldn't Inherit From the Victims -- Or Should They?"
Hat tip to Professor Harvey Feldman for pointing the way to the Washington case.
November 10, 2013 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, November 7, 2013
Effective this year, a new law enacted in New Hampshire declares that under certain circumstances a "fiduciary who possesses or controls the income or assets of a resident and has the authority and duty to file an application for Medicaid. . . shall be liable . . . to the long-term care facility for all costs of care which are not covered by Medicaid due to the fiduciary's negligence in failing to promptly and fully complete and pursue an application for Medicaid benefits for the resident."
A bit of practical background is appropriate to appreciate the significance of this new law.
Older individuals entering a nursing home have essentially three options for how to pay the bills at a facility: Medicare, Medicaid or Private Pay (and by private pay, I'm including the possibility of making a claim under long-term care insurance, family contributions or the resident or couple's income and savings).
For older individuals going directly from a hospital into skilled care or rehabilitative care, Medicare is often the first payment source, for up to 100 days per spell of illness. On a comparative basis, Medicare is relatively easy to negotiate, as the facility usually handles the initial paperwork.
It gets trickier, however, if long-term care is contemplated and Medicaid could be a possibility. Medicaid-eligible facilities prefer the higher pay rates associated with private pay, and therefore may not be highly motivated to talk with residents or families about Medicaid, unless it is the only option. But they often ask family members to pay and thus the burden of figuring out how to pay is on the family. Sometimes that family member is the out-of-town son or daughter. Sometimes that family member is a frail spouse.
As I have discussed in prior scholarship, gaps in payment sources can occur for a variety of reasons. The resident is rarely the cause of the gap as usually the frailty or illness of residents is the reason they are in a care facility to begin with. Rather, some third-party -- or the facility itself --will usually have to handle the paperwork associated with Medicaid applications. And Medicaid applications, typically requiring collection and analysis of the previous five years of the applicant's financial records, can be challenging.
So, who are these fiduciaries facing potential liability? The New Hampshire law says a "fiduciary" is a "person to whom power or property has been formally entrusted for the benefit of another such as an attorney-in-fact, legal guardian, trustee, or representative payee."
There are additional conditions and qualifications in the statute affecting the potential liability of the agent or other fiduciary. ElderLawGuy Jeff Marshall on his Blog has a thoughtful analysis of implications of the new law.
My starting question: So, what about the family member who is named as an agent under a power of attorney, has never taken action under the POA, and for whatever reason (tiredness, lack of understanding, perhaps being overwhelmed by work or other family responsibilities) does not step forward to handle the Medicaid application process. Is having the "authority" to serve as an agent enough -- under this statute -- to trigger a corresponding duty?
By the way, as I discussed in an August post, New Hampshire recently repealled its filial support laws. I am now wondering if there was some horse-trading in the halls of the N.H. legislature whereby nursing home lobbyists agreed to the repeal of filial support laws in exchange for what I might call "fiduciary support" liability? Anyone with insights into the history of this new law?
Feel free to "comment" below.
Wednesday, October 30, 2013
At the LeadingAge annual meeting in Dallas, earlier this week, I attended a round table session hosted by representatives of the Elder Justice Working Group (EJWG), a component of the Elder Justice Coordinating Council (EJCC). The two presenters sought response from the audience, which included individuals from CCRCs, nursing homes, senior housing authorities and other providers of senior living or senior care, to the EJCC's Principles for Action (developed from 9 proposals of the EJWG) aimed at improving national awareness and response to elder abuse, neglect and exploitation.
Here are the first 3 of 9 Principles:
"1. Support the investigations and prosecution of elder abuse, neglect and financial exploitation cases,
2. Support and protect elder victims by improving identification of elder abuse and enhancing response and outreach to victims.
3. Develop a national Adult Protective Services system based upon standardized data collection and a core set of service provision standards and best practices."
For addtional information on recommended federal action, including the other 6 principles, see details reported at the most recent, September meeting of the EJCC.
Our LeadingAge roundtable session focused on practical concerns, including the frustrations felt by some in the room in reporting suspected abuse at a local level, but seeing no response.
I was struck by the very diverse makeup of the individuals choosing to attend a session on elder abuse, both in terms of race and geography, drawing from Maine to Hawaii -- and on to Guam, and thus strongly supporting the EJCC's concerns about nationalized data collection and the need for standardized reporting.
Monday, October 28, 2013
Friday, October 25, 2013
Earlier this week, I posted an update about state law reform movements regarding Powers of Attorney, including the Uniform Power of Attorney Act of 2006 (UPOAA), which so far has been adopted in 13 states and is currently under consideration in Pennsylvania and Mississippi.
I've been getting very interesting responses, and I'll try to capture some here in the blog as I have time. To start things rolling, I'll share some thoughtful comments from Robert Slutsky, a Pennsylvania attorney who focuses his practice on elder law, estate planning and administration, guardianships and real estate . He's also a '92 grad of the Dickinson School of Law, so he's been doing this awhile. He gave me permission to excerpt his emails.
In writing to me, Robert said he was adopting the role of devil's advocate. Certainly turn-around is fair play for graduates with law professors! Based on his experiences, he worries about law reform efforts that could make POAs less useful to the majority of people who use them properly. Restrictions could be penalizing the wrong people. As he puts it succinctly, "Occasional problems with POAs result from evil people who know what is right and wrong and choose to do wrong.... Trying to solve a problem caused by bad people by restricting those who use POAS properly is ineffective and counterproductive."
Robert also serves as the solicitor for a county adult protective services unit, and he does see instances of financial exploitation, although he says he sees more cases of caregiver neglect or self neglect. That observation is consistent with annual reports in Pennsylvania and elsewhere. Unfortunately, data on abuse is not regularly collected or evaluated on a national level, as discussed in the July 2013 GAO Report to Congress on "Elder Justice: More Federal Coordination and Public Awareness Needed."
Robert Slutsky says that even when he sees financial abuse, it "rarely" involves POAs as the tool to victimize older persons. He also warns that while a prosecutor may view a case of a child using a elderly parent's money as "abusive," a full history may show a long pattern of parental approval or tacit permission, and thus with families it can often be a "gray area" regarding permitted use.
Thank you, Robert.
Readers, feel free to add your comments, either to the original post or below.