Sunday, November 16, 2014

Examining Maine's Unique Improvident Transfers Law (ABA Bifocal)

In the October issue of Bifocal, the ABA Commission on Law and Aging journal, the lead article examine's the history of Maine's Improvident Transfer of Title Act, 33 M.R.S.A. Section 1021 et seq., enacted in 1988 in an effort to better protect victims of undue influence and financial exploitation. BIFOCALSeptember-October2014_cover_jpg_imagep_107x141  As the author, Maine elder law attorney Sally Wagley, explains,

"For a period of time, the [proposed] bill continued to be unpopular with some sectors of the bar. This was ameliorated to some extent by elder law attorneys collaborating with real property lawyers to successfully propose a number of appropriate amendments related to transfers of real estate: (1) a provision which states that nothing in the Act affects the right, title, and interest of good faith purchasers, mortgagees, holders of security interests, or other third parties who obtain an interest in the transferred property for value after its transfer from the elderly dependent person; and (2) provisions affecting title practices, stating that the examiners were not required to inquire as to the age of the transferor and whether he or she had independent representation."

Has the law been useful in Maine?  Wagley concludes that in spite of continuing challenges, including the lack of resources to pursue claims and the effect of delays in litigation on elderly victims, the law's presumption of "improvidence" arising from certain "uncounseled" transfers, has had a deterrent effect.  She observes, "Knowledgeable attorneys now refer elders to outside counsel before assisting with a gift to family or others with whom the elder has a close relationship."

For more on Maine's law, see "Maine's Improvident Transfers Act: A Unique Approach to Protecting Exploited Elders."

November 16, 2014 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, State Statutes/Regulations | Permalink | TrackBack (0)

Friday, November 7, 2014

Does Your LTC Facility Have Policies on Intimacy and Sexual Behavior?

Two challenging topics for many families: how to handle death and intimacy for aging family members. We're probably doing better coming to grips with the need to address death than intimacy. When long-term care is required, involving third-parties, the question of sexual behavior can become more important.

Along that line, Bryan Gruley at Bloomberg News wrote a thoughtful series addressing the social, legal, moral -- and just plain tough -- questions connected to sexual behavior that can arise with older persons in congregate settings.

See:

Part 1: Boomer Sex with Dementia Foreshadowed in Iowa Nursing Home.

Part 2:  Sex in Geriatrics Sets Hebrew Home (Riverdale NY) Apart in Elderly Care

Bloomberg Visual Data:  Elder Care Sex Survey Finds Caregiviers Seeking More Training

The Bloomberg series quotes Albany Law School Professor Evelyn Tenenbaum, a civil rights, health care, and bioethics scholar, citing her article "To Be or to Exist: Standards for Deciding Whether Dementia Patients in Nursing Homes Should Engage in Intimacy, Sex and Adultery" from the Indiana Law Review

 

November 7, 2014 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Thursday, October 30, 2014

NAELA Commentary: Roles For Attorneys In Facilitation Or Avoidance Of Financial Abuse

Our friends Stetson Law Professor Roberta Flowers and Pennsylvania Elder Law Attorney Amos Goodall have joined forces in writing a very interesting article, "In Fear of Suits: The Attorney's Role in Financial Exploitation" published in the Fall 2014 issue of the NAELA Journal.

To examine the potential for attorneys to facilitate or hinder financial abuse of elders, they take a close look at key players in the Brooke Astor case.  For example, they discuss the elderly philanthropist's purported execution of three codicils, pointing out that each document was "drafted by superbly educated, well-respected and even renowned 'establishment' lawyers."  The authors ask whether more could have been done by these lawyers to protect Astor from the machinations of two other individuals, her son "Marshall" and Attorney Morrissey, both of whom were eventually convicted, but only after Mrs. Astor's death. 

To provide insight into this key question, Flowers and Goodall take a step back from specific facts of the Astor case, to discuss key ABA Model Rules, including Rule 1.2 (Protection of Client's Objectives), Rule 1.7 (Protecting Clients from Divided Loyalties), Rule 1.14 (Protecting Clients with Diminished Capacity) and Rule 4.2 (Protecting Clients Who Are Represented from Overreaching).

I can see this article providing a great platform for discussion, both among law students and practicing attorneys.   

October 30, 2014 in Cognitive Impairment, Elder Abuse/Guardianship/Conservatorship, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Sunday, October 26, 2014

Filial Liability + Bankruptcy = Trouble

As regular readers of the Elder Law Prof Blog may recognize, I reside and work squarely in a zone where "filial support claims" are more than just theoretical propositions.  Pennsylvania continues to be Ground Zero for modern complications arising from use of a Colonial era law that permits adult children to be held liable for the cost of an indigent parent's long-term care. 

The latest example is In re Skinner, 2014 WL 5033258, decided by Bankruptcy Judge Madeline Coleman in the Eastern District of Pennsylvania on October 8, 2014.

The issue is whether one sibling can prevent another sibling from "discharging" any obligation to pay an assisted living facility for their mother's care.  Both brothers were sued by the facility, resulting in a default judgment against one brother (Thomas) for $32,225, who in turn sought discharge of that debt in bankruptcy court.  Brother William, probably facing the prospect of picking up the full tab for his defaulting brother, initiated an adversary proceeding, seeking to prevent the discharge.   The court concludes that Brother William "lacks standing" to prevent Brother Thomas' discharge of the debt to the assisted living facility.

In dismissing Brother William's claim, the Bankruptcy Judge addresses both the Uniform Fraudulent Transfer Act and Pennsylvania's filial support law.  According to the opinion, Brother William alleges that Thomas used a Power of Attorney executed by their mother in 2007, to access her bank accounts in a "scheme [with his wife] to use the Mother's assets, including her interest in long-term care benefits, to fund approximately $85,000 of their personal expenses." However, the court concludes that even accepting the truth of allegations that "suggest that the Mother was injured by the [Thomas'] conduct, that conduct was directed at the Mother and her property. The conduct was not directed at [William]."  The Bankruptcy Court also rejected any theory of "derivative standing."  

Continue reading

October 26, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, September 29, 2014

Catch Up on Blogs-Elder Justice

The NYC Elder Abuse Center ran a post last week that listed the 10 top blogs from the past year. 10 Elder Justice Blogs to Inform & Inspire includes summaries as well as links to "ten great blogs from the July 2013 – June 2014 stellar blog collection that collectively discuss myriad elder justice issues – from elder abuse in popular culture to podcast interviews with leaders in the field."  Check it out and make sure you haven't missed anything!

 

September 29, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Weblogs | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 16, 2014

PA Attorney Disbarred After Ten Years of Involvement In "Living Trust Scams" Targeting Seniors

Following several months of investigation of complaints from older adults and their family members, in 2004 the Pennsylvania Attorney General announced a civil suit against an array of companies and individuals, including several attorneys, alleging their participation in a scheme to defraud through sales of unnecessary revocable living trusts and unsuitable annuities and insurance products. The alleged target was "senior citizens age 65 and older."

Ten years later, one of the Pennsylvania attorneys named in that original investigation, Brett B. Weinstein, has been disbarred.  This particular disciplinary action has been a lo-o-o-o-ng-time coming.

Beginning as early as 2000, the Pennsylvania disciplinary board received complaints about Weinstein's role in the sales by non-lawyer third-parties of so-called "living trusts," often packaged with high-priced annuities.  Weinstein himself rarely met with the clients, and provided little in the way of legal advice or counseling.  He was formally cautioned about his use of unsupervised non-lawyers to provide legal advice and in 2001 he entered into a written Assurance of  Voluntary Compliance. 

The conduct, however, apparently did not stop.  An undercover investigator was used to document continued problems.   In recommending disbarrment, the Disciplinary Office concluded that from 2002 to 2012, acting on his own and in concert with others, Weinstein "assisted sales and delivery agents for a series of estate planning companies  in the un-authorized practice of law." Further, he engaged in "false and misleading conduct, failed to consult with his clients concerning their objectives and placed his own interests above his responsibilities to his clients."

In discussing the case against Weinstein and rejecting his attempts to justify his conduct, the Disciplinary opinion points to a long-history of concerns about attorneys involved with living trust "mills" in other states (including Colorado, Missouri, and Ohio), where the products are pushed on older persons with little or no analysis of the clients' real legal needs and specific financial circumstances. Read here for the complete Disciplinary findings and the PA Supreme Court Order dated July 28, 2014.

September 16, 2014 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 10, 2014

U.S. Department of Justice Opens New "Elder Justice" Portal

The U.S. Department of Justice recently established an on-line Elder Justice Initiative, intended to assist the public, practitioners, and prosecutors with identifying and responding to all types of elder abuse.  Here are some of the highlighted resource links from the website:

Here, victims and family members will find information about how to report elder abuse and financial exploitation in all 50 states and the territories. Simply enter your zipcode to find local resources to assist you.
 
 
Federal, State, and local prosecutors will find three different databases containing sample pleadings and statutes.
 
 
Researchers in the elder abuse field may access a database containing bibliographic information for thousands of elder abuse and financial exploitation articles and reviews.
 
 

Practitioners -- including professionals of all types who work with elder abuse and its consequences -- will find information about resources available to help them prevent elder abuse and assist those who have already been abused, neglected or exploited.

September 10, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, September 8, 2014

Tragedy on Many Fronts: South Korea Story on Aging Women Near U.S. Base

From the Associated Press in Pyeongtaek, South Korea, an especially troubling history with issues of abuse, human rights, comparative law, international relations, military accountability, and aging:

"More than 70 aging women live in a squalid neighborhood between the rear gate of the U.S. Army garrison here and half a dozen seedy nightclubs. Near the front gate, glossy illustrations posted in real-estate offices show the dream homes that may one day replace their one-room shacks. They once worked as prostitutes for American soldiers in this "camptown" near Camp Humphreys, and they've stayed because they have nowhere else to go. Now, the women are being forced out of the Anjeong-ri neighborhood by developers and landlords eager to build on prime real estate around the soon-to-be-expanded garrison.

 

'My landlord wants me to leave, but my legs hurt, I can't walk, and South Korean real estate is too expensive,' says Cho Myung-ja, 75, a former prostitute who receives monthly court eviction notices at her home, which she has rarely left over the last five years because of leg pain. 'I feel like I'm suffocating,' she says.

 

Plagued by disease, poverty and stigma, the women have little to no support from the public or the government. Their fate contrasts greatly with a group of Korean women forced into sexual slavery by Japanese troops during World War II. Those so-called "comfort women" receive government assistance under a special law, and large crowds demanding that Japan compensate and apologize to the women attend weekly rallies outside the Japanese Embassy.

 

While the camptown women get social welfare, there's no similar law for special funds to help them, according to two Pyeongtaek city officials who refused to be named because of office rules. Many people in South Korea don't even know about the camptown women."

For more of the story, see "Aging South Koreans, Once Prostitutes for U.S. Troops, Being Pushed Away from Base They Never Left."

September 8, 2014 in Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International | Permalink | Comments (0) | TrackBack (0)

Sunday, August 24, 2014

State Legislator Charged with "Sexual Assault" of Wife In Complicated Nursing Home Case

We've reported several times, including here and here, on recent academic and professional publications that address the sensitive topic of "consent" to sexual relations for individuals residing in nursing homes. 

The Huffington Post and other media reports now bring the topic into the general public realm with coverage of a complicated case emerging in Iowa, where a husband has been arrested on charges connected to sexual relations with his wife, a resident with Alzheimer's, in her nursing home room. 

Two items that may be critical to the outcome of the case: Alleged "notice" to the husband by the facility that his wife was no longer legally able to give consent to sexual relations, and the identity of the husband as a public figure. The fact that the husband is a state legislator is a reason why the case may get wide news coverage.  But that wider coverage could also generate important discussion and debate about the deeper legal, personal and public issues.  From one article:

"An Iowa legislator who allegedly had sex with his mentally incapacitated late wife has been charged with sexual abuse. Henry Rayhons, 78, a Republican state representative from Iowa House District 8, was told by medical staff on May 15 that his wife, 78-year-old Donna Rayhons, no longer had the mental ability to consent to sexual activity, according to a criminal complaint obtained by WHO-TV. Donna Rayhons, who suffered from Alzheimer's disease, had been living in Concord Care Center in Garner, Iowa, since March, according to the Des Moines Register....

 

In an interview with law enforcement in June,Rayhons allegedly confessed to 'having sexual contact' with his wife, according to KCCI. He also allegedly admitted that he had a copy of the document that stated his wife did not have the cognitive ability to give consent. Rayhons was charged with third-degree sexual abuse on Friday.

 

Elizabeth Barnhill, executive director of the Iowa Coalition Against Sexual Assault, told the Des Moines Register that even though spousal rape has been illegal in Iowa for about 25 years, arrests for the crime are rare and 'convictions are even rarer.' Barnhill also noted that sexual assault between spouses is not considered a 'forcible felony' in Iowa."

According to new sources, the family has also made a statement

August 24, 2014 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, August 22, 2014

SSRN Potpourri: Recent Elder Law Articles Posted on SSRN

Articles recently posted by U.S. law school academics on the Social Science Research Network's (SSRN's) Elder Law Studies network:

August 22, 2014 in Cognitive Impairment, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)

Thursday, August 21, 2014

Changes Recommended for VA Fiduciary Program to Better Protect Veterans

Recent Duke Law graduate Whitney Bosworth Blazek is the author of a timely, interesting note, "Combating Privatization: Modifying Veterans Administration Fiduciary Program to Protect Incompetent Veterans" in a recent issue of the Duke Law Journal.  The abstract explains:

"Created to supervise the distribution of Veterans Administration benefits, the Veterans Benefit Administration Fiduciary Program was designed to help thousands of incompetent veterans handle their finances. Rather than directly managing each veteran's funds, the Fiduciary Program employs a privatization model whereby a private individual or institution is appointed to manage a veteran's assets. The Fiduciary Program then monitors these fiduciaries to ensure the veteran's funds are properly expended. 

This Note argues that in practice this privatization model is seriously flawed and that it exposes some of the most vulnerable portions of the veteran population's funds to misuse. In support of this conclusion, this Note compares the federal statutes, regulations, and internal directives that govern the Fiduciary Program--paying special attention to the Fiduciary Program Manual-- with audits performed by the Veterans Affairs Office of Audits and Evaluations and the U.S. Government Accountability Office. Relying on these audits, this inquiry rejects total reliance on substantive statutory reform in light of legislative and judicial barriers. Instead, this Note advocates for critical internal reforms designed to improve the Program's efficiency and functionality, the adoption of a state enforcement mechanism, and reliance on principles of cooperative federalism and interagency cooperation."

August 21, 2014 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Veterans | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

Japan: 65 social welfare entities cites for mismanagement of funds and fraud

The Yomiuri Shimbun Between fiscal 2009 and 2013, 65 social welfare corporations nationwide were given guidance by 41 local governments on the basis of the Social Welfare Law to improve their operations over budget misuse by executive directors or receiving large amounts of pay without consulting with boards of directors, according to a Yomiuri Shimbun survey.  The Health, Labor and Welfare Ministry plans to discuss reviewing the inspection system, saying, “It is possible that the boards of directors are not functioning appropriately.”

Social welfare corporations are nonprofit private-sector organizations established to run such institutions as special nursing homes for the elderly, as well as facilities for children and the disabled. There were about 20,000 such corporations nationwide as of the end of 2012, according to the health ministry.  The survey asked 109 municipalities, including Tokyo and other prefectures with ordinance-designated major cities, about their inspections of social welfare corporations as of the end of fiscal 2013. The Yomiuri Shimbun asked each municipality surveyed to disclose related internal information.  The results showed that at 65 corporations, board members used company funds for private purposes by misusing administrative budgets and receiving large amounts of money without consulting with the board of directors between fiscal 2009 and 2013. Of them, 29 corporations were ordered to reform operations based on the law by the end of fiscal 2013.

Source/more:  Japan News

August 20, 2014 in Elder Abuse/Guardianship/Conservatorship, International | Permalink | TrackBack (0)

Abuse of Older Women Overlooked and Underreported

Via Inter-Press News Agency:

A veteran women’s rights activist, Patricia Brownell was taken aback by the prevalence of abuse against older women she discovered during dozens of conversations she and her colleagues had with victims.  They found that for every one official report of abuse made by agencies in New York State, there are 23 self-reports, with the abusers ranging from husbands, sons, daughters and other relatives to complete strangers.  “It’s underreported,” Brownell, vice president of the National Committee for the Prevention of Elder Abuse, told IPS. “In many cases, the victims did not want to talk about it. They felt guilty. They felt it was their fault.”  Most research on the abuse of older women has focused on North America and Europe. A study conducted in five European countries in 2011 found that around 28 percent of older women had experienced abuse.  The situation in developing countries, where the socio-economic conditions are worse and the welfare system weaker, mostly remains unknown.

Violence directed against younger women has long overshadowed that against the elderly, who in some cases are more vulnerable. There has been so little research into the issue that activists said they do not know its full scope yet, hampering efforts to prevent and fight the violence.  Abuse of older women can take various forms, from physical, psychological and emotional (verbal aggression or threats), to sexual, financial (swindling, theft), and intentional or unintentional neglect, according to the World Health Organisation (WHO).  Addressing the Fifth Working Group on Aging at the United Nations in New York, Silvia Perel-Levin, chair of the NGO Committee on Ageing in Geneva, showed how fragmented the picture is: the prevalence of abuse ranges from six percent to 44 percent of those surveyed, depending on the geographic location and socio-economic conditions. 

Read more:  Inter-Press News Agency

August 20, 2014 in Elder Abuse/Guardianship/Conservatorship, International | Permalink | TrackBack (0)

Thursday, August 14, 2014

Prof. Andrew McClurg Calls for "A Statutory Presumption to Prosecute Elder Financial Exploitation"

University of Memphis Law Professor Andrew Jay McClurg's article, "Preying on the Graying: A Statutory Presumption to Prosecute Elder Financial Exploitation," appears in May 2014 issue of the Hastings Law Journal. Professor McClurg proposes that states adopt "state criminal statutes that create a permissive presumption of exploitation with regard to certain financial transfers from elders." In correspondence, Professor McClurg points to the fact that on the surface it may appear that older persons -- victims -- are "voluntarily" parting with assets, when "in fact [the transactions] occur because of undue influence, psychological manipulation and misrepresentation." Mcclurg_newphoto

Professor McClurg stresses the need for a statutory presumption to give prosecutors an effective tool to hold offenders accountable.  His proposal has already had direct impact, in the form of Florida legislation, Fla. Stat. 825.103(2) signed into law June 20, 2014 and effective on October 1, 2014.  Key language from the provision includes:

"Any inter vivos transfer of money or property valued in excess of $10,000 at the time of the transfer, whether in a single transfer or multiple transactions, by a person age 65 or older to a nonrelative whom the transferor knew for fewer than 2 years before the first transfer and for which the transferor did not receive the reasonably equivalent financial value in goods or services creates a permissive presumption that the transfer was the result of exploitation."

The Florida provision applies "regardless of whether the transfer or transfers are denoted by the parties as a gift or loan, except that it does not apply to a valid loan evidenced in writing that includes definite repayment dates...." Further, the new Florida provision does not apply to "persons who are in the business of making loans" or "bona fide charitable donations to nonprofit organizations that qualify for tax exempt status."

In cases tried to a jury under the Florida statute, the law provides that jurors "shall be instructed that they may, but are not required to, draw an inference of exploitation upon proof beyond a reasonable doubt of the facts listed in this subsection."  The law's presumption "imposes no burden of proof on the defendant."

UPDATE:   Professor McClurg wrote again to explain that he worked directly with the Florida Elder Exploitation Task Force and with Florida Representative Kathleen Passidomo to secure passage of the new law.  Professor McClurg's presumption proposal was introduced as part of H.B. 409, which passed unanimously through the two houses of the state legislature.  According to Professor McClurg, the statute is the only one of its type in the nation.  Thanks for the clarification, Andrew!

August 14, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, July 31, 2014

Chicago Declaration on the Rights of Older Persons to Be Presented August 1

Chicago Declaration on Rights of Older Persons Side EventAt the 2014 International Elder Law and Policy Conference hosted by John Marshall Law School in Chicago on July 10 and 11, many weeks of hard work culminated in adoption of a "Chicago Declaration on the Rights of Older Person."  The 11th draft -- of what is to be a working document for the future -- will be presented at the Fifth Working Session of the United Nations Open-Ended Working Group on Ageing to be held in New York City this week. 

In addition, the Chicago Declaration was submitted by United States Representative Janice Schakowsky (Illinois) to the Congressional Record on July 25. 

Congratulations to all who worked on this, with the leadership of many, including Associate Dean Ralph Rubner and Amy Taylor, Head Research Coordinator at John Marshall Law School.  More work for everyone is ahead on this exciting task of seeking wider recognition of the human rights of older persons. 

Speakers at the "Side Event" for the Chicago Declaration, to be held on August 1 at the U.N., include William Pope, Commissioner of the American Bar Association Commission on Law and Aging, and Ebbe Johansen, Vice President, AGE Platform Europe from Brussels.    

July 31, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Retirement | Permalink | Comments (1) | TrackBack (0)

Monday, July 28, 2014

Highlights from the 17th Annual Elder Law Institute in Pennsylvania

Recently a former law student who is considering a career change asked me about elder law, wanting to meet with me to discuss what is involved. I'm happy to chat any time with current and former students, especially about elder law, but this time my advice was simple:  "Drop everything and go to Pennsylvania's 2014 Elder Law Institute."  Indeed, this year saw some 400 individuals attend. 

Important to my advice was the fact that ELI is organized well for both "newbies" and more experienced practitioners.  After the first two-hour joint session, over the course of two days there are four sessions offered every hour.  One entire track is devoted to "Just the Basics" and is perfect for the aspiring elder law attorney.  Indeed, I usually sponsor two Penn State law students to attend.  As in most specializations, in elder law there will is a steep learning curve just to understand the basic jargon, and the more exposure the better.

One of my favorite sessions is the first, "The Year in Review," a long tradition at ELI and currently presented by Marielle Hazen and Rob Clofine.  Marielle reviews new legislation and regulations, both at the state and federal level, while Rob does a "Top Ten Cases" review.  Both speakers focus not just on what happened in the last 12 months, but what could or should happen in the future.  They frequently pose important policy perspectives, based on recent events. 

Among the highlights from the year in review session:

  • Analysis of the GAO Report on "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage" released in late June 2014. Data collection efforts focused on four states and reportedly included "under cover" individuals posing as potential applicants. The report summarizes techniques used to reduce countable resources, most occuring well within the rules and thus triggering no question of penalty periods.  Whether Congress uses the report in any way to confirm or change existing rules remains to be seen.
  • A GAO Report on Medicaid Managed Care programs, also released in June, concluding that  additional oversight efforts are needed to ensure the integrity of programs in the states, which are already reporting higher increases in outgoing funds than fee-for-service programs.
  • The need to keep an eye open for Pennsylvania's Long Term Care Comission report, expected by December 2014. Will it take issue with the Governor's rejection of the Affordable Care Act's funding for expansion of Medicaid?
  • Report on a number of lower court decisions involving nursing home payment issues, including a report on a troubling case, Estate of Parker, 4 Pa. Fiduciary Reporter 3d 183 (Orphans' Court, Montgomery County, PA 2014), in which a court-appointed guardian of the estate of an elderly nursing home patient "agreed" to entry of a judgment, not just for nursing home charges, but also for pre- and post-judgment interest, plus attorneys' fees for the nursing home's lawyer of almost 20% of the stipulated judgment, in what was an uncontested guardianship. 

In light of the number of nursing home payment cases in Rob's review, perhaps it wasn't a surprise that my co-presenter, Stanley Vasiliadis, and I had a full house for our session on "Why Am I Being Sued for My Parents' Nursing Home Bill?" We examined how adult children (and sometimes elderly parents of adult children in care) are finding themselves the target of collection efforts by nursing homes, including actions based on theories of breach of promise (contract, quatum meruit, and promissory estoppel), fault (common law fraud or statutory claims of "fraudulent transfers), or family status, such as statutory filial support.

The extensive course materials from all of the presenters, both in hard copy and electronic formats, are available for purchase directly from the Pennsylvania Bar Institute

July 28, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 23, 2014

"Defensive Use" of Powers of Attorney & Revocable Living Trusts

Atlanta attorney Kristen M. Lewis has a very interesting article in the July/August issue of the ABA's publication Probate & Property. In "The Crime of the 21st Century: Financial Abuse of Elders," Lewis brings to bear her experience in estate planning and wealth protection, including use of special needs trusts, to examine examples of elder financial abuse, for which she coins the acronym "EFA."

While I wish Lewis had included more citations of authority to support observations regarding prevalence of financial abuse, what I find unique about the article is the discussion of "defensive use" of powers of attorney and revocable living trusts. She advocates careful drafting of powers for individuals serving in these fiduciary roles and to consider the use of co-agents or co-trustees. Their roles may be limited but can expressly include "oversight." 

On a related concern, in my experience POAs are often silent on the issue of compensation for agents, thus opening a door to confusion or worse about an agent's "self-payment."  In contrast, Lewis recommends that POAs

"... should outline whether and how the agent is to be compensated for services while acting as agent (for example, hourly at a specified rate or a fee based on the value of the assets under management). Fairly compensating an agent can encourage him to be more honest, attentive, and diligent in the exercise of his duties."

For revocable living trusts (RLTs), she advises "it is imperative to identify a lineup of disinterested trustees, persons who have no interest in the assets remaining in the RLT on the elder's death."  Further, she observes that increasingly, "attorneys specializing in estate planning or elder law are agreeing to serve as trustee for their clients' RLTs, or as co-trustee with a corporate fiduciary.  Such professionals are typically compensated based on the regular hourly rate they would otherwise charge their clients."  I suspect Lewis is thinking about trusts with substantial assets.

The full article is currently available only in hard copy, but American Bar Association magazines are usually eventually posted at the ABA website, and the website for the Real Property, Trust and Estate Law Section of the ABA is here.   

July 23, 2014 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Sunday, July 20, 2014

17th Annual Elder Law Institute in Pennsylvania: Packed Program on July 24-25

The growing significance and scope of "elder law" is demonstrated by the program for the upcoming 2014 Elder Law Institute in Philadelphia, Pennsylvania, to be held on July 24-25.  In addition to key updates on Medicare, Medicaid, Veterans and Social Security law, plus updates on the very recent changes to Pennsylvania law affecting powers of attorney, here are a few highlights from the multi-track sessions (48 in number!):

  • Nationally recognized elder law practitioner, Nell Graham Sale (from one of my other "home" states, New Mexico!) will present on planning and tax implications of trusts, including special needs trusts;
  • North Carolina elder law expert Bob Mason will offer limited enrollment sessions on drafting irrevocable trusts;
  • We'll hear the latest on representing same-sex couples following Pennsylvania's recent court decision that struck down the state's ban on same-sex marriages;
  • Julian Gray, Pittsburgh attorney and outgoing chair of the Pennsylvania Bar's Elder Law Section will present on "firearm laws and gun trusts."  By coincidence, I've had two people this week ask me about what happens when you "inherit" guns.

Be there or be square!  (Who said that first, anyway?)     

July 20, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 15, 2014

Faculty Share Work from Australian Research Network on Law & Ageing

Representatives from some 16 countries participated in the 2014 International Elder Law and Policy Conference at John Marshall Law School on July 10-11.  There was impressive participation -- especially given the distances for travel to attend the short and intense conference -- by faculty members from Australia, including Dean Wendy Lacey from the University of South Australia School of Law, Associate Dean Meredith Blake from the University of Western Australia School of Law, Lisa Barry from Macquarie University Law School in Australia, and Eileen Webb from the University of Western Australia School of Law. 

I learned that there is a strong research network on law and ageing topics in Australia, ARNLA.  Many of the issues they are addressing mirror issues recognized elsewhere in the world, even as the laws and standards may differ between the countries.  Several of the Australian participants reported on recent research or works in progress.Flag_of_Australia_(converted)_svg

For example, Meredith Blake addressed the challenge of using advance directives to honor the directions or wishes of a principal after the individual develops dementia.  She pointed out that unlike some U.S. states that require agents to follow the principal's known wishes or directions, in Queensland the use of a "best interest" standard for agents acting under health care directives may frustrate the wishes of the principal.  Using a detailed and realistic hypothetical to illustrate concerns, Professor Blake urged adoption of a more flexible approach. 

Eileen Webb's presentation focused on how property law concepts in Australia may help or hinder efforts to respond to instances of potential financial abuse, as where an older individual allows or directs transfer of property interests to other family members or unrelated individuals "without adequate protection or for consideration which is illusory."

Professor Webb introduced me to a new but useful label,"family accommodation arrangements," which she reported was one of the most frequent sources of concern for elder abuse in Victoria.  I was particularly impressed by graphs she created to illustrate and organize potentially applicable legal theories, including fraud, undue influence, estoppel, failed joint ventures, common intention and contributions to purchase price for third parties.  The theory of law used to pursue a claim may affect the relief available. Professor Webb urged adoption of specific legislation in Australia to better address the potential for abuse through property transfers.

July 15, 2014 in Advance Directives/End-of-Life, Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Property Management | Permalink | Comments (0) | TrackBack (0)

Monday, July 14, 2014

Disciplinary Review Boards for Professional Guardians: A Question of Process?

Professional guardians have become important players in the world of adult and elder care. As the need has grown, so have efforts to establish standards or oversight mechanisms.  The Center for Guardianship Certification (CGC), for example, offers a national certification process that requires applicants to pass a test, meet minimum eligibility requirements, pay a fee, and make attestations about their background. As reported recently by Sally Hurme for the ABA's Commission on Law and Aging, "as of April 2013, CGC had approved over 1,600 National Certified Guardians and 65 National Master Guardians throughout the country."

Some states have required professional guardians (as opposed to family member or similar one-time guardians) to obtain CGC certification or have adopted state-specific certification standards.  In some states, such as Texas and Washington, certification combines with a state entity to receive and evaluate complaints about professional guardians, combined with a disciplinary process. Such disciplinary boards are usually treated as a supplemental option, rather than as a substitution for court reviews, where parties seek review of a guardian's performance.

Having the power to affect the career of a guardian, disciplinary boards for professional guardians have generated questions about procedural fairness.  In a recent decision by the Washington Supreme Court, the court was called upon to review the procedural fairness of  anctions imposed by the Washington's Certified Professional Guardian Board.  At the heart of the challenge was the defendant's allegations of bias against her by an influential member of the Board, someone with whom she had previously served on the Board, and further asserting that the hearing officer had a financial interest in the outcome of the disciplinary proceedings, because of desire to continue his paid role for the Board.

The allegations against the defendant, who had more than 10 years of experience as a certified guardian and who maintained an active caseload of more than 60 guardianships, focused on her role as guardian for an elderly woman and for a disabled younger adult.  She was alleged to have failed to assist in timely purchase of new glasses for the elderly woman with dementia, and to consult regarding movement of the younger adult to a hospice facility.  The defendant contended that all actions taken by her were appropriate and consistent with the discretion accorded her under a "substitute judgment" standard.

In its July 3, 2014 decision in The Matter of Disciplinary Proceedings against Lori A. Petersen, the Washington Supreme Court, sitting en banc, rejected the defendant's arguments about a "personal vendetta" against her, upheld the findings and conclusions regarding defendant's alleged violation of state guardianship standards in serving the two wards, and rejected the defendant's arguments about procedural unfairness. 

Nonetheless, the Washington Supreme Court ruled that "[b]ecause this is a case of first impression and the Board aspires to consistency with disciplinary sanctions, we remand to the Board to consider whether the sanctions sought against [the defendant], including the monetary fees, are consistent with those imposed in other cases." The Court questioned the imposition of a one year suspension from practice and more than $30,000 in costs and fees, stating its belief that the "circumstances of this case and the severity of the sanctions and fees in light of the charges brought by Petersen warrant an explicit proportionality inquiry."

In 2010, a Seattle Times news article raised questions about the oversight role of the Washington board, reporting that in "five years, the board has taken action against seven guardians or guardian companies. One lost certification. The others negotiated deals in which they promised not to break the rules. Some agreed to additional monitoring."

In the Petersen case, the Washington Academy of Elder Law Attorneys  (through Rajiv Nagaich, Esq.) submitted an amicus brief, challenging the procedural fairness of proceedings against professional guardians in Washington.

For additional thoughts about oversight of guardians, see "A Call for Standards: An Overview of the Current Status and Need for Guardian Standards of Conduct and Codes of Ethics," by University of Washington Law Professor Karen Boxx and Texas attorney and former executive director for the National Guardianship Association, Terry W. Hammond.

July 14, 2014 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)