Tuesday, January 27, 2015
The Importance of Checks & Balances in Law Firm Management, Including Handling Of Elder Client Funds
A news release from the U.S. Attorney's Office in Western Virginia provides an important reminder of the importance for every lawyer of having a system of checks and balances for law office management, to prevent any single employee from having unsupervised access or exclusive control over client trust funds. On December 15, 2014, a 34-year-old legal assistant at a law firm in Virginia was sentenced to 24 months in federal prison for stealing more than $183k from an elderly client of the law firm. The lawyer who employed that assistant had been named by the county to serve as the conservator for the elderly woman who became the victim. According to the news release, the attorney "allowed [the legal assistant] to access the elderly woman's bank accounts,...but [the assistant] did not have signature authority on the accounts."
According to the news release, the employer "to date... has repaid $104,990.15." One suspects the law firm (or, its insurer) will have to pay the whole tab, even though the sentencing order imposes an obligation of restitution for the full sum on the legal assistant.
Monday, January 26, 2015
In a major investigative report, The New York Times describes findings that nursing homes in counties throughout the state of New York are agressively seeking appointment of non-family members as guardians for residents of their facilities. The trigger? Unpaid nursing home fees.
Reporter Nina Bernstein uses the history of 90-year old Lillian Palermo to illustrate the practice, where a nursing home initiated a guardianship proceeding to displace her husband's authority as agent under a Power of Attorney, when disputes with her husband left unpaid bills, alleged to be "approaching $68,000."
NYT and researchers at Hunter College teamed to analyze the use of guardianships as a bill collection tool by nursing homes:
"Few people are aware that a nursing home can take such a step. Guardianship cases are difficult to gain access to and poorly tracked by New York State courts; cases are often closed from public view for confidentiality. But the Palermo case is no aberration,. Interviews with veterans of the system and a review of guardianship court data conducted by researchers at Hunter College at the request of The New York Times show the practice has become routine, underscoring the growing power nursing homes wield over residents and families amid changes in the financing of long-term care.
In a random, anonymized sample of 700 guardianship cases filed in Manhattan over a decade, Hunter College researchers found more than 12 percent were brought by nursing homes. Some of these may have been prompted by family feuds, suspected embezzlement or just the absence of relatives to help secure Medicaid coverage. But lawyers and others versed in the guardianship process agree that nursing homes primarily use such petitions as a means of bill collection -- a purpose never intended by the Legislature when it enacted the guardianships statute in 1993."
While, according to the NYT, at least one court has ruled such a "tactic by nursing homes is an abuse of the law," the increase of such suits highlights the payment dilemmas faced by facilities and families as Medicaid eligibility rules narrow and as the margin tightens for coverage of costs of care.
New York is not alone in seeing guardianship cases initiated by nursing homes. In Pennsylvania, attorneys retained by families or individuals have also sometimes challenged the practice, focusing on the use of facility-preferred guardians and the amount of fees added to the care bills in dispute.
Friday, January 23, 2015
As outlined in the Bar Counsel column of the January issue of the Oregon State Bar Bulletin, on January 1, 2015, lawyers became mandated reporters of suspected elder abuse, including physical abuse, neglect, verbal abuse, sexual abuse, and financial exploitation. Deputy General Counsel Amber Hollister for the Oregon State Bar explains:
"Lawyers across Oregon are talking about elder abuse reporting. On Jan. 1, 2015, legislation took effect making all Oregon lawyers mandatory reporters of elder abuse. HB 2205 (2013). As with any new law, there are still many questions about how the new requirements will apply and impact lawyers' day-to-day practice....
The new reporting requirement was enacted at the recommendation of the Oregon Elder Abuse Prevention Work Group, which was tasked with studying how to better protect older Oregonians. As state Rep. Val Hoyle notes, 'for four years, the work group has focused on protecting some of Oregon's most vulnerable citizens. Integrating lawyers into Oregon's elder abuse safety net as mandatory reporters will provide our state with 19,000 additional advocates.'"
Tuesday, January 20, 2015
Those were the words of Ron Costen in speaking to friends, co-workers, legislators and policy-makers who have long been inspired by his passion to protect the elderly and who had gathered to honor Ron.
Temple Professor Ronald Costen, with multiple degrees in law and social work, has been working on behalf of vulnerable adults, including older persons, for more than thirty years. He is preparing for a "realignment" -- not a retirement -- as he leaves his full time job as founder and Director of Temple University's Institute on Protective Services in Harrisburg, Pennsylvania, where he advised Area Agencies on Aging, county task forces, coroners, prosecutors, social work students and the Department of Aging on best practices when seeking protection for adults faced with neglect or abuse.
The audience, including Pennsylvania Department of Aging Secretary Brian Duke (shown above, right, with Dr. Costen, left), celebrated Dr. Costen's career last week with warm and funny memories, helping him embark on a new combination of consulting work and studies at the Lutheran Theological Seminary of Gettysburg. The new director of the Institute is one of Ron's former social work students, Christopher Dubble, MSW.
Best wishes, Ron!
Monday, January 19, 2015
If you were retiring, would you want marketers of insurance products and funeral services -- or similar products -- obtaining your name and address from your former employer? Pennsylvania's Right-to-Know Law could be permitting just such access to information on a large number of state retirees.
In a decision issued January 9, 2015, the Commonwealth Court of Pennsylvania, an intermediate court, ruled the Pennsylvania State Retirement System (SERS) failed to satisfy its burden to prove "a substantial and demonstrable risk" arising from a request for 15 years' worth of records containing the "names and addresses of all retirees" from the state. Therefore, the names and contact information of more than 1,000 retirees, or if deceased, the information on their beneficiaries, must be disclosed by SERS. And if SERS "failed" in carrying the burden of proving why this should not happen, as the opinion demonstrates, it was not for lack of trying.
The Court recognized an exception from disclosure for retired judges and law enforcement officers on the grounds of specific "personal safety and security" language tied to those positions, contained in Pennsylvania's Right-to-Know Law.
Monday, January 12, 2015
We have written often recently (see here and here) about problems with Powers of Attorney (POAs), and a pending case in Minnesota appears at first to be another sad tale of an agent's alleged self-dealing. The Minnesota Court of Appeals set up the fact pattern as follows:
"The attorney is asked to draft a power of attorney for his elderly client. The document is drafted by a secretary. The lawyer never meets the client. Neither the lawyer nor the secretary ever discusses the ramifications of signing the document with the client. The document allows the attorney-in-fact to transfer all of the client's assets to himself. Days after the [elderly uncle] signs the document, that is precisely what happens."
The nephew used the POA to drain the uncle's accounts of more than $227,000.
Was the nephew liable for conversion? By the time that question was answered by the courts in the affirmative, the nephew was in bankruptcy -- and the money was apparently gone.
The uncle's estate looked for deeper pockets, and focused on the law firm that provided the broadly worded POA "form." The Minnesota Court of Appeal's split decision -- focusing on whether summary judgment for the defendant law firm was proper -- outlines several points that should be considered by any law firm that has drafted a POA, including whether such "forms" should ever be provided to individuals without accompanying legal advice.
Friday, January 9, 2015
The American Bar Association's Commission on Domestic & Sexual Violence is teaming with the National Clearinghouse on Abuse in Later Life (NCALL) to host a 5-part FREE webinar series on "Abuse in Later Life." The target audience includes "civil attorneys, legal advocates and otherw who wish to gain a deeper understanding" of the topics.
The series takes place on Thursdays (mark your calendars!), starting on January 22, and includes the following modules:
- Module One: Abuse in Later Life: An Overview
Thursday, January 22, 2015, 2:00-3:00 pm E.S.T.
- Module Two: Forming the Relationship with Your Client: Client communication, interview skills, and confidentiality/mandatory reporting concerns
Thursday, February 5, 2015, 2:00-3:00 pm E.S.T.
- Module Three: Client Goal-Setting and Non-Litigation Responses: Client collaboration, developing client priorities and non-litigation responses to ALL
Thursday, February 19, 2015, 2:00-3:00 pm E.S.T.
- Module Four: Legal Resolutions and Remedies in ALL cases: Protective orders, Guardianships, Power of Attorney agreements, end of life health care decision-making and working with the criminal justice system
Thursday, March 5, 2015, 2:00-3:00 pm E.S.T.
- Module Five: Bringing the Case – Trial Skills: Protection of evidence and assets, motion practice, witness testimony methods and supports, direct and cross-examination and application of the Crawford decision in ALL cases
Thursday, March 19, 2015, 2:00-3:00 pm E.S.T.
For more information, including registration, go here.
Thursday, January 8, 2015
Check out this new report on SSA's Rep Payee system. The Administrative Conference of the United States released the report, SSA Representative Payee: Survey of State Guardianship Laws and Court Practices. ("The Administrative Conference of the United States (ACUS) is an independent federal agency dedicated to improving federal administrative processes through consensus-driven applied research, and provision of non-partisan expert advice and recommendations to federal agencies." (report at page 1)).
This report was done pursuant to a request in 2014 by SSA to ACUS to learn more about various state guardianship laws and the court practices. ACUS did this by:
(1) carrying out legal research on state laws nationwide governing guardian selection, monitoring, and sanctions; (2) conducting a survey that captures information on state court practices and procedures relating to guardianships, and analyzing the results of the survey; ... and (3) conducting interviews with up to nine state organizations or governmental entities with expertise in, or that provides services related to, adult protective services or foster care in order to evaluate their respective practices related to guardianship and benefits monitoring.
The report includes key findings, trends and "common themes and observations." The summary of findings runs for 4 pages and addresses a variety of topics, including guardian selection, sanctions and removals, court monitoring, outreach and interaction, and caseloads.
The key findings section recognizes the variations amongst the states, but still offers useful information
The study presented challenges because a number of identified problems are local and unique to a particular court within a particular state, or with a specific SSA office. Problems experienced by courts in major cities may be quite different than problems experienced in small or rural courts... The strategy behind this project was to cast a broad net and seek a large respondent pool to collect a dataset that would provide a rich description of the issues... The fact that there are over 850 court responses and over 140 guardian responses means that we can glean a lot of useful information in terms of the nature of the problems, even if some of those problems are localized. The results of this study should be a good starting point for SSA; and the agency should be able to assess and act on any serious problems, albeit localized ones.
The report identifies 5 common areas of concern, including inconsistent electronic information and inconsistency in dealing with various SSA offices, variations in e-filing procedures, and the lack of a nationwide database of guardians or guardianship cases.
We recently heard from Emily Crim, a Public Interest Fellow working in Boston with the "Elder Abuse Prevention Project" under the auspices of Greater Boston Legal Services. The project's important mission, now more than a year in development, is to "offer legal advice and representation of victims, provide training to care providers, community members, and seniors, as well as to advocate for systemic reform and build local networks that can prevent and intervene in cases of abuse." As part of this Project, they have recently launched a great new "Project Blog" to help get the word out.
Here's a link to their most recent post on "LGBT Elder Abuse: An Invisible Problem within an Invisible Community." Here's a link to the Project website too. Certainly the topics addressed here are relevant beyond the Greater Boston area!
Thanks, Emily, for reading our Elder Law Prof Blog and for sharing your latest news!
Wednesday, January 7, 2015
The ABA Commission on Law and Aging has posted its 2014 State Adult Guardianship Legislative Update at http://www.americanbar.org/groups/law_aging/resources/guardianship_law_practice.html. The update describes 18 laws passed in 15 states during the year.
If you are aware of others that were enacted, please contact Erica Wood at the ABA.
Saturday, December 20, 2014
Here is a link to a podcast for a Smart Talk program from WITF Public Radio, where Zygmont Pines, Esq., Court Administrator for the Commonwealth of Pennsylvania and I were invited to talk about quite a few "hot" topics from Pennsylvania Supreme Court's Elder Law Task Force. The Task Force released its big Report and Recommendations last month.
The topics strike me as quite universal, not Pennsylvania specific. If you make it to the last few minutes (or skip ahead), there is an especially poignant moment with a family caregiver, who tells a real life story that will strike a chord with many.
December 20, 2014 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (1) | TrackBack (0)
Friday, December 19, 2014
Starting on January 1, 2015, Pennsylvanians have new rules that apply in order to create effective Powers of Attorney (POAs). The changes are wrought by Act 95 of 2014, and were stimulated in large part by a case decided in 2010 that invalidated a POA that had been executed under suspicious circumstances. We discussed the background here.
There are important, and sometimes subtle options for principals to consider in accepting or rejecting the "default rules" in the Act. All of the changes were intended to provide better protections for principals from abuse by agents, but not all principals will want those protections, particularly if it means more risk of third-party intervention or oversight. For an up-to-date and thoughtful summary of the changes and implications, read ElderLawGuy Jeff Marshall's recent blog post on "What You Need to Know."
For attorneys seeking the latest information on POA drafting and best practices, the Pennsylvania Bar Institute is offering several CLE programs around the state in January 2015.
Tuesday, December 16, 2014
We reported earlier on the brazen attitude and extraodinary thefts by a Pennsylvania estate and long-term care planning attorney. Wendy Weikal-Beauchat, age 47, pled guilty to a series of crimes and on December 16, 2014 she was sentenced to 15 years in prison. The sentencing judge ordered more than $6 million in restitution and the same amount in forefeitures. In ordering her immediate surrender at the end of the hearing, U.S. District Judge John E. Jones III emphasized the betrayal of client trust that accompanied the now disbarred Gettysburg attorney's actions.
"Approximately 30 of Weikal-Beauchat's former clients attended the sentencing, 16 of which read statements to the court, the release states. Most emphasized the mental, as well as the financial, harm inflicted on them and their families by Weikal-Beauchat's fraud.
Weikal-Beauchat stole from clients who were members of the Great Depression and World War II generation and had undermined public trust in lawyers, said Judge John E. Jones III during sentencing. Jones said Weikal-beauchat's apology, which was presented in court for the first time Tuesday, was hollow, the release states."
Additional details from the Evening Sun news coverage are here.
Saturday, December 13, 2014
AirTalk, a program aired daily by Public Radio affilliate KPCC in Southern California, hosted a discussion about the issues identified in news articles about the Iowa criminal case, where a husband faces "statutory rape" charges for having sexual relations with his wife after she was diagnosed with advanced dementia and began residing in a nursing home.
Here's the link to a podcast of the December 12, 2014 segment.
December 13, 2014 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, December 12, 2014
One of my elder law practioner-friends, Julian Zweber, was called by scammers this week. Julian smelled a rat, and now he's working with the Ramsey County Sheriff's Dept. to track down the scammers. I understand from other colleagues that variations of the scam are is sweeping the country. It has been very effective in bilking seniors of a LOT of money.
Details on the Minneapolis/St. Paul version.
The Hennepin County Sheriff’s Office is warning residents about telephone scams.
Individuals are calling residents and telling them there is a warrant out for their arrest because of unpaid court fees or unpaid fines. The phone scammer tells residents that they will be arrested unless they provide credit card or payment information.
Police departments in the metro area also have received reports about phone scammers who tell residents that they owe back taxes. The phone scammers threaten that law enforcement officers will arrest residents who don’t provide payment information over the phone.
The IRS and the Minnesota Department of Revenue have recently issued alerts reminding people that their agencies do not call residents about tax issues. Instead, these agencies send letters to residents.
Nationally, there are a variety of different phone scams. Some of the con artists impersonate an IRS agent, a state revenue department representative, a Sheriff’s deputy, a police officer, or personnel from other federal law enforcement agencies.
The phone scams have resulted in identity theft, fraud, and unauthorized credit card use.
Never provide personal information or credit card numbers over the phone unless you know that the call is legitimate. People who receive a telephone call that appears suspicious, should NOT provide personal information and should instead call local law enforcement or call 911 to report the incident.
Do not rely on caller ID to verify the origin of a phone call. In some cases, calls from phone scammers will appear on a caller ID as originating from a law enforcement agency or government agency, when in reality the call is a hoax and a result of technology that manipulates caller ID. If you are uncertain about the identify of a caller; hang up the phone, locate the official phone number of the agency that called you, and call the agency directly.
Wednesday, December 3, 2014
Canada: New online program aims to help reduce financial abuse of seniors through education and awareness
Launch of Financial Abuse of Older Adults: Recognize, Review and Respond program marks end of Financial Literacy Month
In honour of November being Financial Literacy Month, Credit Union Central of Canada (CUCC) has partnered with Credit Union Central of Manitoba (CUCM) and Prevent Elder Abuse Manitoba (PEAM) – in collaboration with the Financial Consumer Agency of Canada – to launch a new online course: Financial Abuse of Older Adults: Recognize, Review and Respond. The purpose of this course is to help educate credit union staff about financial elder abuse and provide them with key information, including: how to identify incidences of elder abuse; how to mitigate the risks; community resources available; as well as the legal and ethical responsibilities of both the financial institution and the senior involved. Upon completion of the course, credit union employees will have the opportunity to share their knowledge with members of the community – especially with Canadian seniors –, to help them understand more about elder abuse and how to prevent it happening to them. Minister of State (Seniors), the Honourable Alice Wong; Minister of Healthy Living and Seniors (Manitoba), the Honourable Deanne Crothers; Lawrence Toet, MP (Elmwood-Transcona); Jane Rooney, Financial Literacy Leader; Martha Durdin, President and CEO of Credit Union Central of Canada, and Ted Richert, Vice President, Credit Union Central of Manitoba will make remarks. The program was written and developed by Tamlo International Inc. and will be distributed exclusively by CUSOURCE Credit Union Knowledge Network, a wholly owned subsidiary of Credit Union Central of Canada that provides learning and development solutions to the Canadian credit union system.
Source: Canada News Wire
Tuesday, December 2, 2014
Australia’s criminal laws must be reviewed in light of the low rate of prosecutions for elder abuse, according to a leading expert who has also called for the various power of attorney and guardianship laws at state level to be re-examined. Professor Wendy Lacey, Dean of Law at the University of South Australia told the Australian Association of Gerontology national conference on Wednesday that along with legislative reform, coroners needed to be educated about elder abuse and its prevalence. While there were mandatory reporting obligations around suspected physical and sexual abuse under the Aged Care Act, these only covered seniors living in residential aged care, and did not protect the majority of older people who were not accessing federally-funded services, she said.Professor Lacey, who is a co-convenor of the Australian Research Network on Law and Ageing, was last year appointed to the SA Minister for Health’s Steering Committee which reviewed the state’s framework for responding to elder abuse. She said that under the constitution, the Federal Parliament’s powers to address elder abuse were “virtually nil” with “almost no capacity to develop a comprehensive systemic framework.” Therefore, advocates needed to look the states, said Professor Lacey. “We can seek the support of the Commonwealth around funding and doing a national review around the prevalence and types of elder abuse, but from a legal and constitutional perspective we have to look to our state governments for the answer,” she told the Adelaide audience.
Sunday, November 30, 2014
Via The Diplomat:
The Chinese government has proposed a draft law against domestic violence – the first such law for China. The draft, published by the State Council’s Legislative Affairs Office, is open for public comment until December 25. The law will cover all forms of domestic violence, including spousal abuse, child abuse, and elder abuse. A full English translation of the draft is available from China Law Translate. Domestic violence, particularly spousal abuse, has gained more and more attention in China thanks to a number of high-profile cases. As Xinhua put it in an article on the new draft law, “Family violence has remained in the shadows for a long time in China, where the culture holds that family conflicts are embarrassing private matters. Only in recent years have the Chinese people begun to examine the issue.” The All-China Women’s Federation issued a firm statement in support of the draft law. “Domestic violence is not a family dispute, rather, it is aggression against people’s rights and should be resolved with legal measures,” the statement said. In an effort to further change the way domestic violence is viewed, the draft law exhorts Chinese media outlets to shape public opinion on the issue. Accordingly, the new law encourages and even requires social aid organizations, schools, and medical institutions to report cases of abuse to the authorities. Both social organizations and individuals should be empowered to “dissuade, prevent, and report physical and psychological abuse from within the victims’ family,” the law said.
Source/more: The Diplomat
Friday, November 28, 2014
In Wagner v. State of Maryland, decided October 30, 2014, the Court of Special Appeals of Maryland affirmed the conviction of a daughter on charges of theft and misappropriation as a fiduciary, arising from her withdrawal of funds from her father's bank account which she used for her own purposes. The daughter had been added as a "joint owner" on the account by her 80+ year old father following the death of his wife.
The issue as framed on appeal was whether a person can be guilty of theft from a joint account on which that person is named as a joint owner.
The amount in controversy was more than $120,000 withdrawn by the daughter over 3 years. The appellate court concluded that "even though [the daughter] was named as a 'joint owner' in the parties' agreement with the bank, and not a convenience person, it does not determine conclusively that [she] was an [owner] for the purpose of the criminal statute."
Several key facts supporting the conviction are described in the decision, including:
- Testimony by the father at trial that the only reason he added his daughter's name to the account was to permit her to get money for him, if he was unable to get it for himself.
- The father retained control over the checkbook for the account.
- Evidence that thousands of dollars were withdrawn from the father's account by the daughter using a cash card, which the father said he was unaware existed.
- The daughter had failed to make payments on a $85k mortgage taken out by her father on his home, which the father testified was a loan to his daughter to help her business, and not a gift as the daughter claimed. Notice of foreclosure on the home was apparently what tipped the father to ask questions about his finances.
Maryland has not, apparently, adopted the Uniform Multiple Person Accounts Act, (UMPAA, first approved 1989) which is intended to clarify the rights of depositors and other parties in jointly titled bank accounts.
Monday, November 24, 2014
Several high profile incidents, such as those reported here in our Blog and here by the Philadelphia Inquirer, involving attorneys disciplined or convicted of theft of client funds, have triggered proposed changes in Pennsylvania's Rules of Professional Conduct for attorneys. The rule changes proposed by the Pennsylvania Supreme Court's Disciplinary Board include:
- imposing restrictions on an attorney's brokering or offering of "investment products" connected to that lawyer's provision of legal services;
- clarifying the type of financial records that attorneys would be required to maintain and report, regarding their handling of client funds and fiduciary accounts;
- clarifying the obligation of attorneys to cooperate with investigations in a timely fashion;
- clarifying the obligation of suspended, disbarred, or "inactive" attorneys to cease operations and to notify clients "promptly" of the change in their professional status.
The Disciplinary Board called for comments on the proposed rule changes, noting that although individual claims against the Pennsylvania Lawyers Fund for Client Security are confidential, "Fund personnel can attest that from time to time, the number of claims filed against a single attorney will be in double digits and the total compensable loss will amount to millions of dollars." The comment window closed on November 3. 2014.
In recommending changes, the Disciplinary Board noted common threads running through many of the cases, including:
November 24, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)