Friday, April 18, 2014

Older Adult Protective Service Options: When Even Court Orders Are Not Enough

My various search routines regularly alert me to cases involving older adults. I was reading an unpublished Washington Court of Appeals decision dated February 2014 in State v. Knopp, which at first seemed fairly straight-forward, if sad.  A daughter was appealling her conviction for first degree theft from her disabled mother, theft that began through use of a Power of Attorney.  The daughter contended the prosecutor misstated the law during closing argument and that her trial counsel was ineffective. She argued -- unsuccessfully -- that she was entitled to make a "claim of title" defense based on the POA.  The conviction was affirmed.

On closer reading, what seemed more remarkable than the conviction was the history of opportunities and unsuccessful efforts to stop the daughter's theft.  The broadly worded POA was executed by the mother in 2006 when everyone was healthy.  The problems did not begin until the mother "suffered an injury in December 2008" and was placed in a rehabilitation facility.  The facility recommended to the daughter that she apply for Medicaid for her mother, but the daughter later admitted she did not complete the application because she realized "most of [her mother's] income would be required to pay for her medical needs." Instead she took her mother out of the rehab facility "against medical advice" and moved her to an assisted living facility. 

It seems clear from reading the opinion that from as early as April 2009, there were concerns about the daughter's role.  For reasons not fully explained in the criminal case opinion, the mother was appointed a "guardian ad litem;" an "evaluator" reported the mother was suffering from dementia and lacked capacity to handle her own financial affairs; and in June 2009, the GAL obtained a "court order prohibiting [the daughter] from accessing [her mother's] accounts. 

Nonetheless, the daughter apparently continued to help herself to her mother's accounts, withdrawing "several thousand dollars" between June 19 and August 3, 2009.  Apparently "the bank failed to process" the court order correctly, thus allowing the continued withdrawals.  And even as late as October 2009, the daughter was successful in redirecting her mother's pension and social security checks to her own accounts by direct deposit, thus bypassing the court order.

The case is an example of the challenges of preventing financial abuse of elderly or disabled persons by a persistent individual; however, it also points to the importance of functional systems of effective checks and balances once it is clear that abuse is occuring.  Not easy -- not fun -- and, again, sad. 

April 18, 2014 in Cognitive Impairment, Crimes, Elder Abuse/Guardianship/Conservatorship, State Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2014

FINRA Arbitration Awards Damages, But Also Attorneys' Fees Under California Elder Abuse Laws

An arbitral award in March 2014 by Financial Industry Regulatory Authority (FINRA) ordered Signator Investors, Inc., a firm aligned with the John Hancock Financial Network, to pay an older couple and their elderly mother's estate $1.2 million for losses arising from failed retirement investments inappropriately marketed to them by a Signator broker. The award to the claimants included "compensatory" damages plus interest, and ordered rescission of all the claimant's investments in Colonial Tidewater Realty Partners.  The award also granted Signator's cross-claim against its former broker, James Robert Glover, for breach of contract, fraud and negligence as potential indemnification on the damage award.

As is true with most arbitration awards, the ruling on Docket No. 13-00579 (available via search at the FINRA website) is "bare bones," providing little in the way of explanation about which legal theories support the outcome. A detailed explanation is unnecessary for FINRA arbitration rulings, which cannot be appealed. 

The claimants, a husband and wife (both 70+) and the husband's mother (who died in 2012 at the age of 103), reportedly invested their entire retirement savings through Glover, who put them into securities not held or offered by Glover's brokerage company.  This practice is sometimes described as "selling away." Signator's defense that Glover's actions were therefore outside the scope of his authority with their company and not subject to their control or responsibility to supervise was implicitly rejected by the FINRA arbitrators.  News reports indicate some 40 other pending complaints connected to Glover's actions. Glover was sanctioned personally by FINRA in March 2013.

FINRA, created in 2007,  is the successor to NASD, the National Association of Securities Dealers, the former enforcement operation for member brokerage firms and exchange markets regulated by the Securities and Exchange Commission.  A single arbitral award of $1+ million through FINRA is interesting by itself.  For example, for the entire year of 2013, FINRA ordered a total of $9.5 million in restitution to harmed investors. 

But what caught my attention was the additional award of $453,970 in attorneys' fees for the claimants against Signator, "pursuant to California elder abuse statutes." The amount of the fees appears to be roughly 40% of the damage award.  Most securities claims are handled by attorneys on a contingency fee arrangement and a fee of 40%  of the award is not unusual in this challenging field.  Thus, even a successful claimant before FINRA may not be made whole, absent a contractual or statutory basis to claim attorneys' fees.  So the award of compensatory damages and interest, plus attorneys fees' is significant. 

Unlike many states, California has a comprehensive provision for attorneys' fees connected to civil actions for abuse of elderly or dependent adults, at Cal. Welfare & Institutions Code Sections 15657-15657.8, including Section 15657.5 providing for attorneys' fees where it is proven by a preponderance of the evidence that a defendant is liable for "financial abuse."   

April 17, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Retirement | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

Congrats to Kim Dayton and co-authors-new book

Congrats to dear friend, co-blogger and webmom Kim Dayton who spearheaded a recently published book, Comparative Perspectives on Adult Guardianship. Published by Carolina Academic Press, the book is available for purchase for $53 (currently at 10% discount is available for internet orders). The website describes the book as

[A] compilation of chapter-essays from some of the world’s leading authorities on adult Coverguardianship law. The essays cover a wide range of topics from both theoretical and practical perspectives. Part I of the book introduces some of the basic concepts that transcend the national guardianship system, approaching these concepts from a comparative perspective. Part II’s essays provide comprehensive information on guardianship systems around the world. Essays in Part III outline an ambitious agenda for reforming adult guardianship regimes. The book is a must read for those concerned with the role of national and international law in defining and expanding the rights of older persons and persons with disabilities who are at risk of being placed under guardianship due to cognitive or other disabilities.

The book has 23 chapters that cover a range of topics and a selected bibliography that includes selected governmental reports, conventions, articles and books. Authors include a number from the United States as well as Japan, China, Canada, Australia, Korea, The Netherlands, The U.K, Israel, England,  Sweden, and Turkey.

The introduction to the book, authored by Jochen Exler-Konig (Germany), chair of the International Guardianship Network, describes the importance of this book:

Modern societies around the globe are confronting an increasing incidence of disability associated with an aging population, and growing acknowledgment of mental health issues, developmental disabilities, and the consequences of brain injuries. Adult guardianship is no longer merely a local concern. It has been suggested that more than 1% of the adult population 18 years and older in industrialized nations is under formal legal guardianship...The number of persons in need of guardianship, and guardianship caseloads, can be expected to grow exponentially in the next few decades. This reality raises a number of questions: How can we address the needs of persons who need protection, while preserving their autonomy and personal dignity? How can adult guardianship systems accommodate these competing concerns?

Complimentary copies are available for professors by requesting an exam copy. Kim Dayton ROCKS!!!

 

 


April 15, 2014 in Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0) | TrackBack (0)

Sunday, April 13, 2014

Critical Issues to Consider in Planning Via Powers of Attorney

ElderLawGuy Jeff Marshall succinctly discusses four critical issues that individuals and families should consider when using Powers of Attorney in estate and incapacity planning. Here's the link to Jeff's "Powers of Attorney: Things You Need to Know."  

April 13, 2014 in Advance Directives/End-of-Life, Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Property Management | Permalink | Comments (1) | TrackBack (0)

Saturday, April 12, 2014

Pennsylvania's Current Debate: How Best to Respond to Elder Exploitation?

I think it is safe to say that in more than twenty years of working in law and aging, the last twelve months have been the "busiest" I can remember on the topic of financial abuse of older persons. 

As examples, in just the last six months, in addition to international projects on safeguarding policies, I have been invited to assist a team of attorneys on a series of well-attended CLE presentations on "powers of attorney," testify at the invitation of the Pennsylvania House of Representatives on the topic of financial abuse and exploitation, and serve on an Abuse and Neglect Committee for the Pennsylvania Supreme Court's Elder Law Task Force.  

Certainly the concerns about financial abuse of older adults are not new. However, a steady drumbeat of local news reports about financial abuse, plus the demographics of aging populations, has drawn increased attention of state legislators, courts, and practitioners.  In many jurisdictions, the focus is no longer just on "whether" but "how" to address the problem of exploitation of older people. In addition, the high profile cases involving philanthropist Brooke Astor and actor Mickey Rooney, reportedly at the hands of family members and others, have made it clear that no level of society is immune from the potential for abuse.   

Along this line, in Pennsylvania a series of events have helped to shape the current debate on abuse of older persons or other "vulnerable" adults, and thus has generated proposed legislation.  Perhaps Pennsylvania's history will resonate with those addressing similar concerns in other jurisdictions:

  • In 2010, the Pennsylvania Supreme Court addressed the question of whether a state agency that was responsible for administering a specific retirement fund was entitled to good faith immunity under state law when taking action in reliance on a purported Power of Attorney (POA) presented by the spouse as agent of his employee/wife.  In Vine v. Commonwealth of Pennsylvania, a majority of the Court concluded that where the employee's "X" on the POA was improperly obtained by her husband while she was incapacitated after a life threatening car accident, the POA was invalid  -- in other words "void" -- and therefore the "immunity" conferred by the state's POA law was not available to the agency.   (There were  strong dissents to the majority's ruling,).   The decision had implications for POAs generally, and certainly POAs presented by family members or others to banks on behalf of older people who needed or desired agents to handle financial matters.  In Pennsylvania, financial institutions began questioning POAs, seeking reassurances that the document in question was valid.  The commercial viability of POAs was thus at risk. This became known as the "Vine" problem in Pennsylvania.
  • Attorneys representing various stakeholders, including families, financial institutions and district attorneys, began to weigh-in with proposed "fixes" for the Vine problem, while sometimes also raising other concerns related to financial abuse of older or vulnerable adults.
  • The Uniform Law Commission, after years of hard work by academics, judges, attorneys and other interested parties nationwide, issued a proposed "Uniform Power of Attorney Act" (UPOAA) in 2006. Central to the proposed legislation were safeguards intended to better protect the incapacitated principal, as well as address concerns by agents and third parties. By 2014, fourteen states have enacted revisions of POA laws, drawing upon the Uniform Act for guidance. As with other uniform law movements, the Commission's work on UPOAA  recognized the need for accepted standards for instruments used in national commerce, instruments that frequently cross state borders. 
  • In Pennsylvania, the UPOAA has influenced two bills, House Bill 1429 (introduced by Representative Keller) and Senate Bill 620 (introduced by Senator Greenleaf).  Each bill passed in their respective houses.  (This single sentence truncates several years of  history about the negotiations, all set against the background of need for a "Vine" fix.)  Both bills address the concerns of banks and other third-parties who want reassurances that they may rely in good faith on POAs that appear on their face to be valid.
  • Following legislative hearings that included testimony from individuals representing banks, legal service agencies, and protective service agencies,  other legislative proposals emerged.  These pending bills include: SB 621 (Senator Greenleaf) with significant, additional updates to POA laws, as well as other parts of the probate code; HB 2014 (Representative Hennessey) proposing significant revisions of the state's Older Adult Protective Services Act; and HB 2057 (Representative White) amending the Older Adult Protective Services Act to create a private right of action, including attorneys fees and punitive damages, for victims of exploitation against the abusers. 

In Pennsylvania, which has a year-round legislature, there tend to be two windows for major action on pending legislation, including the "budget" cycle that ends on July 1 and again during autumn months.  In following the various bills, it seems to me likely that HB 1429 will be the vehicle for the "Vine" fix.  There is also the possibility that Senator Greenleaf's second bill, SB 621, and other tweaks will be passed, either as standalone legislation or as amendments to HB 1429 or other bills.  Thus, for interested persons and stakeholders, the weeks leading up to July 1 will mean keeping a watchful eye (and alert ear) for last minute changes.

All of the stakeholders are well-intentioned and concerned about the best interests of older adults who because of frailty often have no choice but to rely on agents or others acting in a fiduciary capacity. 

At the same time, as I've watched the events of the last four years in Pennsylvania come to a peak the last six months, I've observed a complicating factor.  Those who are most likely to see violations of POAs, including district attorneys, protective service agencies and the courts, probably do not see the larger volume of commercial transactions that happen routinely and appropriately without the added cost of enhanced accounting or oversight.  By comparison, professional advisors who routinely facilitate families in estate planning, including transactional attorneys, tend not to see the abusers. Finally, financial institutions, who probably feel caught in the middle, and who are often on the front lines of witnessing potential abuse, seek the ability to report suspected abuse without incurring liability, while also avoiding the costs of becoming "mandatory" reporters (a topic addressed in some proposed amendments of the Older Adult Protective Services Act).  Thus it is challenging to balance the viewpoints of different groups in crafting effective (including cost effective) solutions.

There is also the potential that by focusing primarily on POAs, which in Pennsylvania is driven by a very real need for a "Vine" fix, we may be missing or minimizing other significant instances of abuse via joint accounts, questionably "signed" checks, or misuse of bank cards and credit cards.  The amounts of money per transaction may be smaller in those instances, but depending on the victim's resources, the impact may be even more significant.

Ironically, as the population of older adults increases, state funding, including Pennsylvania funding, is under constant threat, thus weakening Protective Services, Legal Services and the courts, all entities that can help victims, and that have expertise in investigation and intervention where abuse is indicated.

April 12, 2014 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 9, 2014

Submit Guardianship Related Resources to NGN's New Resource Library

The National Guardianship Network is compling reources for the online International Resource Library on Adult Guardianship. If you have a resource that could be beneficial to your fellow professionals, please consider sharing it on our online library. Forms, manuals, checklists, brochures and more will be posted as a shared resource in this library. Documents can be emailed to info@nationalguardianshipnetwork.org (use the subject “resource library” so that that these materials are not confused with presenters’ Congress handouts). Please provide, in English, a description regarding the document(s) you send, so that we can name and categorize them. Resources may be in English or in the language in which they were written. Please respect U.S. Copyright laws.

April 9, 2014 in Elder Abuse/Guardianship/Conservatorship, Web/Tech | Permalink | TrackBack (0)

Monday, March 31, 2014

IRS warns of tax-related phone scam sweeping the nation

Via AARP:

A fast-moving phone scam called the largest of its kind is targeting taxpayers across the country. Victims have reported threats of license suspension, arrest and deportation.  What makes this timely scam so tricky? The scammers impersonate Internal Revenue Service (IRS) agents and demand payment for taxes owed, and often:

  • know the last four digits of the victim’s Social Security number;
  • make caller ID appear as if the IRS is calling;
  • send follow-up bogus IRS emails to support their scam; and
  • call a second time claiming to be the police or Department of Motor Vehicles, and caller ID again supports their claim.

The IRS usually contacts people by mail not by phone about unpaid taxes.

The IRS won’t ask for payment using a pre-paid debit card or wire transfer, nor will they involve law enforcement or immigration agencies.

WHAT TO DO:

If you or a family member receives one of these calls, your best bet is to hang up. But if you do get into a conversation, do not give anyone money or credit card information over the phone and don’t trust callers who use threats or insults to bully you.

NEXT STEPS:

Report the incident to the Treasury Inspector General for Tax Administration at 1-800-366-4484.

File a complaint with the Federal Trade Commission at www.ftc.gov.  Add "IRS Telephone Scam" to the comments in your complaint.

If you owe or think you owe federal taxes, call the IRS directly at 1-800-829-1040 to verify information.

For more information, visit www.irs.gov.

Please help spread the word about this tax season scam by sharing this email with your friends and family.

If you or someone you know has been a victim of identity theft or fraud, contact the AARP Foundation Fraud Fighter Center at 1-800-646-2283.

March 31, 2014 in Elder Abuse/Guardianship/Conservatorship, Other | Permalink | TrackBack (0)

Monday, March 24, 2014

Law Commission of Ontario releases study papers on adult guardianship

In April 2013, the LCO issued a Call for Research Papers related to its project on Legal Capacity, Decision-making and Guardianship. The Call closed on June 30, 2013.

The LCO commissioned several papers in order to provide background research for its Legal Capacity, Decision-making and Guardianship project. This research will be taken into account in the LCO's analysis and recommendations, along with other research, consultations and feedback to other published documents.

March 24, 2014 in Cognitive Impairment, Elder Abuse/Guardianship/Conservatorship | Permalink | TrackBack (0)

Call for a "Collaborative National Strategy" On Elder Abuse

Law Professor and Deputy Dean Wendy Lacey has published a comprehensive article detailing challenges that exist in addressing the growing phenomenon of elder abuse, including:

  • Lack of a comprehensive, national mandate for safeguard of older adults;
  • Lack of innovative legal reforms at the state level;
  • Ageism;
  • Invisibility of our older people;
  • Lack of awareness within the community of the prevalence, nature and signs of elder abuse;
  • Absence of an international normative framework for protecting the rights of older persons.

All of these points strike a chord for those who work on behalf of victims of abuse in the United States.  Of course, the fact that this list is from Professor Lacey's article on "Neglectful to the Point of Cruelty? Elder Abuse and Rights of Older Persons in Australia," published in the Sydney Law Review in March, 2014, does not change the significance of her call for a "collaborative" strategy, "incorporating a rights-based approach to the review and reform" of laws, whether on a state, territorial, national or international basis.    

March 24, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Property Management | Permalink | Comments (0) | TrackBack (0)

Sunday, March 23, 2014

California Court: Enforceability of Mandatory Arbitration Clauses in Trusts

On March 11, 2014, California's intermediate appellate court ruled that a mandatory arbitration clause in an inter vivos trust would not control, where the beneficiary challenging the trust "was not a signatory to the arbitration agreement."  The daughter who challenged the document alleged her mother lacked capacity to sign the newly revised agreement in question and contended the revisions were the product of "elder abuse" and undue influence.  The decision offers much to consider. 

In McArthur v. McArthur, the court noted enforceability of arbitration provisions in trusts was a question of first impression in California and turned to other states for guidance.  In Schoneberger v. Oelze, 96 P. 3d 1078 (Az. Ct. App. 2004), the Arizona court ruled that arbitration clauses contained in trusts agreements are generally not enforceable against nonsignatory beneficiaries, a decision that was later superseded by revisions to Arizona statutes.  In Rachal v. Reitz, 203 S.W. 3d 840 (Tex. 2013), the Texas Supreme Court relied on wording of the state's arbitration law in concluding a trust beneficiary can be bound to arbitrate, regardless of whether the trust document was analyzed as a contract.

In ruling against mandatory arbitration, the California court characterized one daughter's argument that "public policy" favored arbitration of trust disputes as more appropriate for the Legislature.  The Court concluded that "whatever the national trend might be, [the proponent of the trust and mandatory arbitration] fails to demonstrate that any other jurisdiction would compel arbitration under the facts of this case, where the [contesting] beneficiary has not either expressly or implicitly sought the benefits of a trust agreement containing the disputed arbitration provision."

The California decision also points to several law review articles addressing arbitration provisions in trusts disputes, including a 1995 article by Yale Professor John H. Langbein, and a 2012 article by University of Missouri Law Professor S. I. Strong.  By email, Professor Strong notes it will be interesting to see whether the McArthur case goes to the California Supreme Court. 

While not addressed in the opinion directly, the details of the trust history in the California case also suggest another potentially interesting question, about the use of particular "mandatory" dispute mechanisms or mandated organizations that could favor a certain result. 

The original McArthur trust, created in 2001, apparently granted the three daughters equal shares of their mother's estate.  The challenged 2011 amendment, however, allegedly favored one daughter and as described in footnote 2, added a "Christian Dispute Resolution" provision that described the mother and that same daughter as "Christians [who] believe the Bible commands them to make every effort to live at peace and to resolve disputes with each other in private or within the Christian church." The mother as "Trustor" and the mother and daughter as "Co-Trustees agree that any claim or dispute arising from or related to the Trust as amended shall be settled by biblically based mediation and, if necessary, legally binding arbitration before the Institute for Christian Conciliation (TM), a division of Peacemaker (R) Ministries...."  

So, if one challenges the very essence of the amended trust and the role of the new co-trustee, doesn't that suggest the challenger might have a uniquely steep uphill climb, whether or not a "member" of the faith or organization granted the power of enforcement?

March 23, 2014 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Religion, State Cases | Permalink | Comments (0) | TrackBack (0)

Friday, March 14, 2014

Reminder: Third World Congress on Adult Guardianship--registration is underway

The Third World Congress on Adult Guardianship will be in Washington DC May 28-30.  Registration is now underway.  Anyone interested in national and international developments in the realm of guardianship should attend this conference, which features speakers from 21 countries/six continents. 

Information about the Congress, and registration materials, are available via the main website.  My advice:  this is one event you don't want to miss!

March 14, 2014 in Cognitive Impairment, Elder Abuse/Guardianship/Conservatorship, Programs/CLEs | Permalink | TrackBack (0)

Sunday, March 9, 2014

Arizona: Junior High Art Contest to Raise Awareness About Elder Abuse

 Via Yuma News Now:

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.

More info here.

March 9, 2014 in Elder Abuse/Guardianship/Conservatorship | Permalink | TrackBack (0)

Thursday, March 6, 2014

Court's Approval of Estate Account No Bar to Criminal Charges Against Trustee/Agent

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.  

March 6, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 26, 2014

Residents File Class Action Against For-Profit CCRC in California

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

February 26, 2014 in Elder Abuse/Guardianship/Conservatorship, Federal Cases, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 12, 2014

Private Rights of Action Under Elder or Vulnerable Person Laws

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.

February 12, 2014 in Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, February 10, 2014

Incapacity and the Second Amendment

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."

February 10, 2014 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Sunday, February 9, 2014

Am I My Brother's (and My Parent's) Keeper, Even If Neither Wants Me?

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.    

February 9, 2014 in Cognitive Impairment, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Housing, Medicaid, State Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 22, 2014

"Joey The Clown" Lombardo Claims "Elder Abuse" In NC Prison

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 NorthJoeyTheClownLombardo 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

January 22, 2014 in Elder Abuse/Guardianship/Conservatorship | Permalink | TrackBack (0)

Friday, December 13, 2013

Elder Exploitation: PA Hearings on Protective Services Tackle Tough Topics

Pennsylvania State Capitol December 2013Pennsylvania'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. ElderAbuseHearing- Panel of Witnesses   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.  

ElderAbuseHearing-CoChairsThe 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. 

December 13, 2013 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, December 12, 2013

New Report: "The State of Guardianships in Pennsylvania"

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:

  • How thoroughly are the rights of the Alleged Incompetent Person (AIP) protected when AIPs do not have legal representation 25% of the time, and the judges are inconsistent in appointment of counsel or insisting that AIP have counsel?
  • How responsive is the state's guardianship system to ensuring the AIP's right to due process when in only 1% of the cases was the hearing for a guardianship held at the AIP's location?
  • How thorough is the guardianship hearing when the average hearing is only 34 minutes for uncontested hearings?
  • How much is invested in the guardianship systems when the majority of Area Agencies on Aging (AAA) staff that work with guardianship receive very little training specifically focusing on guardianship?
  • How transparent is the guardianship process when only 57% of lawyers indicated that the entire guardianship hearing was held on the record?
  • Are all avenues to alternative guardianship explored when 42% of lawyers indicated they had not been asked by the court to demonstrate they had explored alternatives to guardianship?
  • Has guardianship become a defacto way to move someone into a nursing home when 42% of consumers are living in a nursing home 90 days after a guardianship appointment when the AAA is involved?

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. 

December 12, 2013 in Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)