Thursday, February 26, 2015

The French "Bettencourt Affair" - A "Universal Story" on the Cover of the NYT

The New York Times  offers dramatic front page coverage of a criminal trial against ten defendants in France, accused of manipulation of Liliane Bettencourt, the 92 year-old heir of the L'Oreal cosmetics fortune.  The defendants include a "celebrity photographer" (and his "long-time companion"), a former wealth manager, and an 81-year-old notary "who certified, with misgivings, Mrs. Bettencourt's decision to make" the 67-year-old photographer her sole heir, cutting out her only daughter. 

Serious money is involved, with Forbes once estimating Mrs. Bettencourt's fortune at more than $40 billion.  She has been diagnosed with "dementia and moderately severe Alzheimer's."

The prosecutors said her advanced age, the beginnings of dementia and a daily medical regimen of 56 pills, including antidepressants, also invited exploitation. And investigators contend that the schemes were so widespread that they included a political scandal involving a former finance minister seeking cash for the 2007 presidential campaign of Nicolas Sarkozy.

 

Some of the house staff members risked their jobs to challenge her advisers and confidants, particularly a French society photographer who gained the largest share of her fortune. At one point, investigators estimated that share to be about a billion euros, or $1.13 billion, in gifts during 20 years of friendship ending in 2010.

 

“Liliane wanted to do things for me, to ease my life,” testified the photographer, François-Marie Banier, 67, who is facing the highest penalty of the defendants, three years in prison. “I refused things like a mansion. But she took it so poorly. It’s really hard to cross that extraordinary woman.”

For all the details, sadly familiar if you followed the Brooke Astor history of wealth and manipulation, about the trial that just ended before a panel of judges who will issue their verdict on May 28, read "The Case of L'Oreal Heiress, A Private World of Wealth Becomes Public."

February 26, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International | Permalink | Comments (0) | TrackBack (0)

Sunday, February 22, 2015

First White House Conference on Aging Regional Forum Held in Tampa, Florida

The first White House Conference on Aging Regional Forum was held on February 19, 2015 in Tampa Florida. The morning featured comments by the WHCOA Executive Director Nora Super and remarks by Cecilia Munoz, Assistant to the President and Director, Domestic Policy Council.  Two panels followed, with comments by panelists on the 4 topics of emphasis for the 2015 WHCOA, healthy aging, long term services and supports, retirement security and elder justice.  In the afternoon, participants were divided into working groups for those 4 topics, where they discussed priorities, obstacles, and actions.  Representatives from each working group presented the group's topic recommendations in a closing panel presentation moderated by Kathy Greenlee, Administrator for the Administration on Community Living and the Assistant Secretary for Aging. In person attendance was invitation only, but the event was live webcast through HHS. The next regional forum is set for Phoenix, Arizona on March 31st. Visit the WHCOA forums website a day or so before the event to register for the live webcast.

February 22, 2015 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Medicaid, Programs/CLEs, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2015

Canadian Centre for Elder Law in Vancouver: Call for Abstracts for November 2015 Conference

The Canadian Centre for Elder Law and the British Columbia Law Institute have extended a call for panel proposals for their November 2015 Elder Law Conference in Vancouver. Canadian Centre for Elder Law 

The themes for the two day conference are: 

November 12 (Day 1): Connecting Across Discipline and Geography:

Join practitioners from law, social work, health care, finance, non-profit and other sectors from across the country and around the world to talk about the challenges and issues involved in working with older adults.  Particular topic areas we are seeking include:

  •  elder abuse,
  • assisted living and retirement housing,
  • financial abuse,
  • guardianship,
  • pensions,
  • age friendly communities,  and
  • outreach strategies. 

November 13 (Day 2): Key Practice Challenges and Hot Topics in Legal
Practice:


Explore issues engaged in powers of attorney and substitute decision-making, health care decision-making and end of life care, mental capacity and dementia, elder abuse and neglect, and other challenging subjects that arise in representing older adults and their families.

Contact National Director Krista Bell with any questions, and additional details, including submission information are available here.

February 16, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, International, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)

Thursday, February 12, 2015

Call for Papers for Inaugural Issue of Journal of Aging, Longevity & Law

Touro Law Center has issued a call for papers for the inaugural issue of the Journal of Aging, Longevity and Law, to be published this year.  The first issue "will explore issues of adult guardianship." 

The new Journal is intended to be interdisciplinary, on a "wide range of topics involving the elderly and the consequences of an aging population on the law and the legal system."  Co-Editors-in-Chief, Professors Marianne Artusio and Joan Foley, explained the journal will be faculty and student-edited, and published online.  They welcome papers from professionals working in law and health care, as well as from students.

The deadline for submissions for the first issue is March 10 2015.  Papers should be submitted in MS Word format to the Editors above, and should "generally be no longer than 35 pages, including footnotes."   

February 12, 2015 in Elder Abuse/Guardianship/Conservatorship, Grant Deadlines/Awards | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2015

Free Tool Kits and In-Service Downloads-Limited Time Offer!

I received an email recently from the National Center on Elder Abuse listserv about free training materials. The National Council of Certified Dementia Practitioners/International Council of Certified Dementia Practitioners are offering for free their toolkits and in-service materials through March 15, 2015.  Sign up here for the free training materials. There is a wide array of topics available, including a large library of dementia topics and some on elder abuse. According to the website, the took kits include the following:

  • Free Power Point / Over Head In-services for   Health Care Staff, Tests and Answers, Seminar Evaluation and Seminar   Certificates
  • 97 Ideas To Recognize Alzheimer's Disease and Dementia Care Staff Education Week
  • 20 Reasons Why You Should Provide Comprehensive   Alzheimer's Disease and Dementia Training to Your Staff by A Live Instructor
  • Dementia Word Search Games & Interactive   Exercises
  • Movies and Books About Alzheimer’s You Don’t Want   To Miss
  • Proclamation & Sample Agenda for Opening   Ceremony & Sample Letter to Editor
  • Contest Entry Forms- Staff Education   week
  • Alzheimer’s Disease Bill of Rights & Alzheimer’s   Patient Prayer
  • Nurse Educator / In-service Director of The Year Nomination Form
  • Corporate and Associate Membership Forms
  • Songs to Inspire You
  • Letter to the Editor
  • Sample Certificate
  • Alzheimer's Prayer

February 9, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Programs/CLEs | Permalink | Comments (0) | TrackBack (0)

Register Now-Webinar on Observational Measure of Elder Self-Neglect

NAPSA, NCCD  and NCPEA are offering another Research to Practice webinar on March 9 . This webinar is on Observational Measure of Elder Self-Neglect.

Here is a description of the webinar

Elder self-neglect (ESN) represents half or more of all cases reported to adult protective services. ESN directly affects older adults and also their families, neighbors, and the larger communities around them. ESN has public health implications and is associated with higher than expected mortality rates, hospitalizations, long-term care placements, and localized environmental and safety hazards.

This webinar will describe results from a study using concept mapping to create a conceptual model of ESN and the items needed to measure it. ESNA indicators of self-neglect align into two broad categories: behavioral characteristics and environmental factors, which must be accounted for in a comprehensive evaluation. Discussion will focus on the clustering of items into the two categories and on the hierarchy of items which should represent severity of self-neglect.

To register, click here.

February 9, 2015 in Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Programs/CLEs, Webinars | Permalink | Comments (0) | TrackBack (0)

Phantom Fixation -- Just One of the Weapons Used by Fraudsters

AARP has a fabulous video, using the voices of brave victims, to examine the Weapons of Fraud employed by con artists.  The speakers span all ages (in fact, I think I saw a Penn State logo on one of the candid, younger victims), and thus the clear message is that anyone can be a risk. 

The short (about 15 minute) and intriguing video seeks to inoculate viewers from the risk factors of the pitch. as discussed further on Boston College's Squared Away Blog.  

I think one of the most useful parts of this video is identifying and naming the ways that standard marketing tactics are magnified and used to persuade individuals to participate in the con. The techniques include establishing a "phantom fixation," through promise of a sudden windfall that will be available to you  and only you... if you just talk to them long enough (oh, and yes, send them money). 

Law students will also appreciate the example of the "Miracle Shim" to demonstrate misuse of "social proof," "authority," and  fake "scarcity," and other techniques. 

 

Hat tip to ElderLawGuy Jeff Marshall, Esq. for these links.  

February 9, 2015 in Consumer Information, Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Friday, February 6, 2015

D.C. Bar Addresses "Breaking the Silence on Elder Abuse"

The Washington D.C. Bar has a feature article on elder abuse in February issue of its Washington Lawyer.  It begins with a comparison of Brooke Astor's history to a "quiet" case of exploitation in the District:

"The issue of elder abuse made front-page news in 2009 when famed philanthropist Brooke Astor’s son, Anthony Marshall, was convicted on 14 of 16 counts for financially exploiting his mother, stealing millions of dollars from her. A few years earlier in the District of Columbia, a similar case played out on a much smaller scale and away from the media glare.

 

D.C. resident Hattie Mae Goode was a housekeeper who, along with her husband, had scrimped and saved, bought a house (in which she took great pride), and wanted to be independent in her elder years. Several years after her husband died, Goode was introduced to Reginald Rogers by a mutual friend. Rogers, a lawyer, soon became indispensable to Goode, taking her to doctor appointments, to the bank, and eventually obtaining power of attorney over her.

 

'She trusted him to take care of her and her financial affairs, which turned out to be a very bad idea. He just cleaned her out,' says Goode’s niece Alma Robinson, who is executive director of the California Lawyers for the Arts. 'It was such a horrible story. This widow by herself with nobody looking after her, and then he convinces her that her family is trying to take advantage of her,' Robinson says. Cases such as Goode’s and Astor’s are all too common, say experts, yet the issue of elder abuse often goes unnoticed."

While much of the article sounds familiar, in terms of the recitation of predicted numbers of victims and the sad facts uncovered in actual investigations, the article also points to an interesting "new  project" launched in October, the "District's Collaborative Training and Response to Older Victims," or DC TROV.  For more on this new team approach, read "Breaking the  Silence on Elder Abuse," by Kathryn Alfisi. 

February 6, 2015 in Elder Abuse/Guardianship/Conservatorship, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 4, 2015

Part 2 of "Death of a Black Nursing Home" - Medicaid's Racism

Part 2 of the provocative New America Media series on "Death of a Black Nursing Home," describes a pervasive, discriminatory impact by states in deciding how to use Medicaid funding for health and long-term care.  In "Why Medicaid's Racism Drove Historically Black Nursing Home Bankrupt," Wallace Roberts writes:

"About 90 percent of Lemington’s residents were Medicaid recipients. The industry’s average, however, is 60 percent, so Lemington’s mission of providing care for low-income people from the area put it at a competitive disadvantage.

Lemington’s over-reliance on Medicaid was the principal reason its debt grew from a few hundred thousand dollars in 1984, to more than $10 million, including a $5.5 million mortgage on a new facility in 1984.

Pennsylvania’s Medicaid payments for nursing home reimbursement were too low to enable the home to hire enough trained staff. Lemington’s former human resources director, Kevin Jordan, noted that the home was “always scrambling to cover payroll” and spent lots of money on 'legal fees fighting the union.'”

The article details serious mistakes made by individuals in the operation of Leimington Home for the Aged, but also points to essential problems in Medicaid funding that doomed the facility to failure.  The author calls for reforms, including a consistent, national approach to long-term care funding, to eliminate -- or at least reduce -- the potential for misallocation of money by states:

"Although the leadership of Lemington Home must bear the responsibility for those legal judgments and the fate of an important institution, the racist history imbedded in Medicaid’s rules for the past 80 years should share the brunt of the blame for bankruptcies at hundreds of long-term care homes largely serving black, latino and low-income elders.

One needed change would be to award nursing homes in African American, Hispanic and low-income neighborhoods serving large numbers of Medicaid recipients larger “disproportionate share payments.” Under the law, such homes receive additional reimbursements for serving a larger-than-usual proportion of very poverty-level residents. But the higher rate also doesn’t kick in unless a facilty has at least a 90 percent occupancy rate, which many homes like Lemington can’t easily reach. Rules relaxing that standard would bring badly needed revenue to vulnerable homes.

Congress could also require that all nursing homes accept a minimum number of Medicaid patients so as to spread the financial burden.

But to truly do the job, Medicaid should be federalized—taken out of the hands of state and local officials, many of whom use get-tough rhetoric in elections to stigmatize and punish often-deserving people...."

The full articles are interesting -- we will link to any future parts of this bold series.

February 4, 2015 in Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Monday, February 2, 2015

Supported Decision-Making: A Model Alternative to Guardianship?

A recent blog post on the Administration for Community Living (ACL)  discusses supported decision-making. Preserving the Right to Self-determination: Supported Decision-Making discusses the limitations of guardianships for decision-making by those individuals with dementia, intellectual or developmental disabilities and explains why supported decision-making may be a better choice.

Supported decision-making starts with the assumption that people with intellectual and developmental disabilities and older adults with cognitive impairment should retain choice and control over all the decisions in their lives. It is not a program. Rather, it is a process of working with the person to identify where help is needed and devising an approach for providing that help. Different people need help with different types of decisions. For some, it might be financial or health care decisions. Others may need help with decisions surrounding reproductive rights or voting. Some may need help with many types of decisions, while others need help with only one or two. 

The solutions also are different for each person. Some people need one-on-one support and discussion about the issue at hand. For others, a team approach works best. Some people may benefit from situations being explained pictorially. With Supported decision-making the possibilities are endless.

The blog goes on to explain "a cooperative agreement" with Quality Trust for Individuals with Disabilities where they will 

build a national training, technical assistance, and resource center to explore and develop supported decision-making as an alternative to guardianship. The resource center will gather and disseminate data on the various ways in which supported decision-making is being implemented and generate research in the area. Our goal is that the information collected during the period of this cooperative agreement will lead to a model that will help states as they consider alternatives to guardianship.

February 2, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0) | TrackBack (0)

Saturday, January 31, 2015

And Now, Some Happier News About Nursing Homes...

It strikes me that a lot of my posts this week about long-term care have been "bad news," especially regarding nursing homes.  It is a good time for me to share a much happier view from a daughter who first wrote to me about her fears as an adult daughter -- with health care concerns of her own -- living 3,000 miles away from her father, who at 90+ was in crisis and needed daily help, but was unable to afford it. Loving Daughter and Dad 

Her dad had a local person as an agent, a long-time friend's child who held "power of attorney." But that individual seemed overwhelmed.  When the daughter wrote to me, I encouraged her to talk to her father, who still had capacity.  Four months later, the daughter wrote back to give the results, including the very good news that her father was happier. She gave me permission to share details here:

"Since last September ... I was able to get my father completely on Medicaid and everything went through well with his application, etc.  He got accepted the first time!  I hear that can be rare. Additionally, my Dad met with his attorney and revised his POA, making me his agent and allowing me to do many things, even from afar.

 

Dad's very happy now and quite healthy (at age 91) in his new skilled nursing home environment in Pennsylvania.  Even from 3,000 miles away, I am still very connected to him, as well as the wonderful staff at the nursing home.  My Dad is now 3rd generation of his family to stay at that same nursing home. Additionally, he now has the company of his youngest sister, my Aunt, who has been at the home for the last 10 years.  They are together and enjoying each other's company every day."

A short time later, the daughter wrote again:

"I have such peace of mind, and heart, knowing this is the right place for Dad, plus, he has so much more socialization now and is no long isolated and all alone in his apartment where he was before.  (I no longer lay awake every night worried about him with knots in my stomach.) Plus, I forgot to mention the facility has a resident dog on site, a golden retriever named 'Magoo,' and, boy, does he brighten everyone's day."

This daughter's words are an important reminder that the "right" place, including the right nursing home, can make dramatic improvement in the lives of older persons, especially where frailty and isolation are the concerns. Thank you, Patti, for sharing your "happier" news.

Postscript:  Patti allowed us to share a photo of her and her father, and the story of their relationship is written in their smiles. 

January 31, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Medicaid | Permalink | Comments (0) | TrackBack (0)

"Still Alice" As Springboard For Family Conversation

My colleague and great friend, Professor Laurel Terry, shared Paul Sullivan's Wealth Matters column from the New York Times, that uses the new movie Still Alice as a reminder of the importance of family conversation:

"For anyone who has ever watched a family member disappear into Alzheimer’s, Ms. Moore’s performance is gripping, particularly as her tricks to stall her decline inevitably fail and the later stages of the disease consume her. Yet the movie is also a great vessel to explore many of the financial issues that families need to address when someone is diagnosed with Alzheimer’s or any other disease that causes cognitive impairment."

The column continues with thoughts from financial professionals, who sometimes observe the early signs of a long-time client's decline:

"Thomas Mingone, managing partner at Capital Management Group of New York, said he had clients whose mental slide had been apparent to the advisers, accountants and lawyers in the room but not to the client. Since advisers are bound by a fiduciary duty to protect their clients’ privacy, Mr. Mingone said he can’t simply call up their children to let them know. With a client who seems to be slipping but lives alone and sees family members infrequently, Mr. Mingone said he suggests a family meeting, which allows him to connect with his client’s children. Other times, he said, just asking clients how they are doing brings the problem out.

 

'Sometimes when you bring this up with clients, it’s a relief to them,' he said."

For additional realities, including the problem of end-of-life decision-making and care choices, read "In Alzheimer's Cases, Financial Ruin and Abuse Are Always Lurking." 

January 31, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Film | Permalink | Comments (0) | TrackBack (0)

Thursday, January 29, 2015

Additional Discussion of Use of Guardianships as Nursing Home Collection Tool

On Monday, we linked to the front-page New York Times article by Nina Bernstein, "To Collect Debts, Nursing Homes Are Seizing Control Over Patients."  Suffice it to say, I've been hearing a lot about the topic, from many sources.  In hearing from law professors and lawyers with different perspectives, it appears there are at least three important questions framed by the article. Each may take additional investigation to fully address, whether in New York or other states where similar concerns have been raised.

In one of the cases described by the NYT, a court opinion addresses what appears to be the nursing home's narrow "collection" purpose in seeking a guardianship.  The article summarizes:

"Last year Justice [Alexander W.] Hunter did appoint a guardian in response to a petition by Hebrew Home for the Aged at Riverdale, but in his scathing 11-page decision, he directed the guardian to investigate and to consider referring the case for criminal prosecution of financial exploitation.

 

The decision describes a 94-year-old resident with a bank balance of $240,000 who had been unable to go home after rehabilitative treatment because of a fire in her co-op apartment; her only regular visitors were real estate agents who wanted her to sell. After Hebrew Home’s own doctor evaluated her as incapable of making financial decisions, the decision says, the nursing home collected a $50,000 check from her; it sued her when she refused to continue writing checks, then filed for guardianship. 'It would be an understatement to declare that this court is outraged by the behavior exhibited by the interested parties — parties who were supposed to protect the person, but who have all unabashedly demonstrated through their actions in connection with the person that they are only interested in getting paid,'  he wrote.

 

Jennifer Cona, a lawyer for the nursing home, called the decision 'grossly unfair to Hebrew Home,'  but said she could not discuss details because the record was sealed."

Here is a link to the full opinion in the case, publically available on Justia.com.  

Two additional cases raise similar issues and are referenced in the New York Times.  Both have opinions by  Judge Hunter:

Matter of G. S., 17 Misc.3d 303; 841 N.Y.S. 2d 428 (Sup. Ct., New York County 2007), and

Matter of S.K., 13 Misc.3d 1045; 827 N.Y.S.2d 554 (Sup. Ct. Bronx Cty., 2006).

In both cases, Judge Hunter concluded the purpose for which the guardianship petitions were filed by the nursing home as petitioner was "not the legislature’s intended purpose when Article 81 of the Mental Health Law was enacted in 1993.” In each case, the judge assessed fees against the petitioner nursing home. In the 2007 case of G.S., the court observed, "To the extent that the nursing home is seeking to be paid for the care it has rendered to the person, the petitioner must seek a different avenue of redress for that relief as a guardianship application is inappropriate."

Continue reading

January 29, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

ABA Commission Fellow Examines Restoration of Rights for Adults Under Guardianship

Jenica Cassidy, a recent graduate of Wake Forest University School of Law, has been serving as a Fellow with the ABA Commission on Law and Aging since August 2014.  It appears she's been making very good use of her time, working on a study that examines termination of guardianships and restoration of rights for adults. 

BiFocal, the journal of the ABA Commission is publishing a short overview of the study -- a sneak peek -- in its February issue. What I especially appreciate is the clear documentation provided by the author on the methodology, including "(1) statutory review; (2) case law search and analysis; (3) online questionnaires for attorneys and judges; and (4) stakeholder interviews." Jenica and the Commission staff analyzed 104 cases, including 57 cases occurring between 1984 and 2014, where individuals petitioned for restoration of rights.  The study highlights the challenges that face any individual seeking to terminate a guardianship, as well as the impact of guardian testimony or opposition to such petitions. 

The full report will be published in the Elder Law Journal (University of Illinois), but in the meantime, read the intriguing summary available through BiFocal.  

January 29, 2015 in Elder Abuse/Guardianship/Conservatorship, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)

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. 

January 27, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Monday, January 26, 2015

NYT: Nursing Homes Seek Guardianships (And Fees) To Collect Unpaid Nursing Home Costs

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.

For more, read "To Collect Debts, Nursing Homes Are Seizing Control Over Patients."

January 26, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Medicaid, State Cases | Permalink | Comments (0) | TrackBack (0)

Friday, January 23, 2015

Oregon's Law That Mandates "Elder Abuse Reporting" by Lawyers Now in Effect

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.'"

January 23, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 20, 2015

"My life has been a gift"

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. 20150114_171239

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!  

January 20, 2015 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, January 19, 2015

Should Right-To-Know Law Permit Access to State Retirees' Names & Addresses?

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.

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January 19, 2015 in Cognitive Impairment, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, January 12, 2015

"Broad POA Form" + Theft by Agent = Potential Liability for Lawyer? Maybe...

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.

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January 12, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases | Permalink | Comments (0) | TrackBack (0)