Tuesday, February 21, 2017
The deeply disturbing medical practice history of Christopher Duntsch, who worked as a neurosurgeon in Texas until 2013, culminated in his February 2017 conviction and sentence of life in prison for his injuries to a 74-year old patient. It is relatively rare for medical "malpractice" cases to lead to criminal charges, but as detailed in news articles covering the trial, there was strong, adverse medical testimony about how Duntsch's improper surgical procedures caused a horrific outcome.
Initially accusing Duntsch of criminal acts arising in the context of surgical procedures to several of his patients, the prosecution ultimately focused the criminal trial on his 2012 spinal surgery on a single patient under Texas Penal Code Section 22.04, for "Injury to a Child, Elderly Individual, or Disabled Individual." The pertinent portion of the statute provides:
"(a) A person commits an offense if he intentionally, knowingly, recklessly or with criminal negligence, by act . . . causes to a . . . elderly individual . . . : (1) serious bodily injury."
The offense becomes a first degree felony, if it is proven that the conduct was "committed intentionally or knowingly." If the conduct had been "only" reckless, the offense would be a felony of the second degree.
Under the statute, an "elderly individual" is defined as a "person 65 year of age or older."
In a Washington Post article on the conviction, a Texas attorney is quoted:
“I cannot recall a physician being indicted for aggravated assault for acts committed during surgery,” Toby Shook, a Dallas defense attorney who spent 23 years working as a Dallas County prosecutor, told the magazine. “And not just Dallas County — I don’t recall hearing about it anywhere.”
Friday, February 17, 2017
As we have discussed often on this Blog, one key issue in guardianships can be the right of access between third persons and the protected ward. Arizona has adopted a new rule expressly permitting individuals with "significant relationships" with a ward to petition the court for access if the appointed guardian is denying contact. A key section of the new law, adding Arizona Rev. Statutes Section 14-1536, effective as of January 1, 2017, provides:
"A person who has a significant relationship to the ward may petition the court for an order compelling the guardian to allow the person to have contact with the ward. The petition shall describe the nature of the relationship between the person and the ward and the type and frequency of contact being requested. The person has the burden of proving that the person has a significant relationship with the ward and that the requested contact is in the ward's best interest."
In deciding whether to grant access the court is obligated to consider the ward's physical and emotional well-being, and to consider factors such as the wishes of the ward "if the ward has sufficient mental capacity to make an intelligent choice," whether the requesting person has a criminal history or a history of domestic or elder abuse, or has abused drugs or alcohol. The new law also gives the ward the direct right to petition for contact with third persons.
"Significant relationship" is defined in the statute as meaning "the person either is related to the ward by blood or marriage or is a close friend of the ward as established by a history of pattern and practice."
The Arizona guardianship law was also amended to mandate that guardians notify "family members" when an adult ward is hospitalized for more than 3 days or passes away. Section 14-1537 provides notice shall be given to the ward's spouse, parents, adult siblings and adult children, as well as to "any person who has filed a demand for notice."
I have also run into the issue of access where the care for the incapacitated person is being provided by means of family member or third person acting through a "power of attorney." Sadly, in some states, the access issue triggers a full blown guardianship proceeding. Should a similar "significant relationship" test be used to provide a court petition-system outside of guardianships?
February 17, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases | Permalink | Comments (0)
Tuesday, February 14, 2017
I have had several law students take advantage of summer internships available through the David Berg Center for Law and Aging in New York City and they always report it was a great experience. The window is now open for applications for summer 2017. Here are the details:
The David Berg Center for Law and Aging is seeking select students for its Summer 2017 internship program. The David Berg Center for Law and Aging focuses on a wide range of legal and policy issues affecting the older adult population and victims of elder abuse and exploitation. Interns will be offered the unique opportunity to work at the nation’s first elder abuse shelter, The Harry and Jeanette Weinberg Center for Elder Abuse Prevention at the Hebrew Home at Riverdale. Located in the Riverdale section of the Bronx, New York, on 17 acres of the Hudson River, the comprehensive elder abuse center provides an emergency residential shelter as well as psychosocial, health care and legal advocacy and community-based services for victims of elder abuse. Under the direct supervision of the Weinberg Center’s Assistant Director and General Counsel, students will be exposed to legal practice in New York City and Westchester County. Students may have the opportunity to work collaboratively with Weinberg Center partners such as the New York State Attorney General’s Office, the New York City Police Department, District Attorneys’ Offices and Family Justice Centers. Interns will complete substantive research and writing on the different legal and policy issues impacting the older adult population and victims of elder abuse. Past issues have included questions surrounding legal capacity, guardianship, powers of attorney, Medicaid eligibility, copyright, and right to privacy. The interns will gain case management skills and potential courtroom exposure through drafting petitions for guardianship, family court orders of protection and housing court matters. The interns will also have the opportunity to participate in multidisciplinary conferences, meetings of the American Bar Association Senior Lawyer’s Division’s Elder Abuse Task Force and other community outreach and training events. Dormitory style affordable housing at the College of Mount Saint Vincent is available.
Interested students should send a resume, cover letter and writing sample to Deirdre Lok. Her email address is available on the Center's website here.
Monday, February 13, 2017
Late last month the Congressional Research Service published the following: The Elder Justice Act: Background and Issues for Congress. Here is an excerpt from the executive summary
Elder abuse is a complex issue that often requires a multifaceted policy response that combines public health interventions, social services programs, and criminal law enforcement for abusive behavior. To address this complexity, the Elder Justice Act was enacted on March 23, 2010 as part of the Patient Protection and Affordable Care Act (ACA, P.L. 111-148, as amended). The act attempt s to provide a coordinated federal response by emphasizing various public health and social service approaches to the prevention, detection, and treatment of elder abuse. The Elder Justice Act also represents Congress’s first attempt at comprehensive legislation to address abuse, neglect, and exploitation of the elderly at the federal level.
To date, most activities and programs authorized under the Elder Justice Act have not received federal funding through the annual appropriations process. For the first time, Congress appropriated $4 million for a new Elder Justice Initiative in FY2015 and $8 million in FY2016. However, the authorizations of appropriations for most provisions under the act expired on September 30, 2014. Despite the lack of discretionary appropriations prior to FY2015, some elder justice activities have received funding from mandatory funding appropriated through the ACA Prevention and Public Health Fund (PPHF). As a result of this limited federal funding, the federal government has not substantially developed and expanded its role in addressing the prevention, detection, and treatment of elder abuse.
For FY2012, the Secretary of the Department of Health and Human Services (HHS) transferred $6.0 million to the Administration for Community Living (ACL) from the PPHF for new grants to states and tribes to test elder abuse prevention strategies. Funded projects included using forensic accountants to prevent elder financial exploitation, increasing medication adherence to prevent elder self-neglect, and developing screening tools to identify elder abuse. For FY2013, $2.0 million was transferred to ACL from the PPHF for elder justice activities, which funded development of the National Adult Protective Services Data Reporting System Project. No PPHF funds were transferred to ACL for elder justice activities for FY2014 or subsequent fiscal years.
For FY2017, the President’s budget request included $10.0 million in discretionary funding for Elder Justice/Adult Protective Services (APS) that would be used to fund APS, research, and evaluation activities. The 2017 budget request did not specify an intended transfer of funding from the PPHF for elder justice activities. For FY2017, the Senate Appropriations Committee recommended $10.0 million for the Elder Justice Initiative in its FY2017 Departments of Labor, Health and Human Services, and Education, and Related Agencies (LHHS) appropriations bill. The House Appropriations Committee recommended $8.0 million in its FY2017 LHHS appropriations bill. Neither House nor Senate floor consideration of the bill occurred in the 114th Congress. Since the start of the fiscal year (October 1, 2016), funding for LHHS programs and activities has been provided by two continuing resolutions (CR; P.L. 114-223 and P.L. 114-254). The second FY2017 CR provides continuing appropriations for LHHS appropriations through April 28, 2017, or until full-year appropriations are enacted.
The report offers some observations for Congress as well as some concluding thoughts:
The Elder Justice Act represents one set of policies that exist in the broader context of domestic social policy to address the complex issue that is elder abuse. That is, as a federal legislative response, the Elder Justice Act may best serve as a catalyst for further federal coordination and action that can bring about greater public awareness and attention to the needs of a growing, and potentially vulnerable, aging population. According to GAO, the Elder Justice Act "provides a vehicle for setting national priorities and establishing a comprehensive, multidisciplinary elder justice system in this country."44 Such a response touches on a range of domestic policy programs and issues that are not specific to one congressional committee’s jurisdiction or area of expertise. Furthermore, congressional oversight into federal administration, implementation, and related activities must rely on different committees of jurisdiction as well as the experience of select committees such as the Senate Special Committee on Aging....
Sunday, January 22, 2017
The National Guardianship Association, NGA, released updated Standards of Practice for Agencies and Programs Providing Guardianship Services. The standards are free and can be downloaded here. Here is some information about the standards taken from an email announcing their release:
NGA's purpose in this document is to provide guidance for programs striving to provide quality guardianship services. While aspirational, the standards convey good business practice that agencies and states should consider adopting into policy or law.
NGA has defined Standards of Practice for the day-to-day provision of guardianship services. Those standards apply to all guardians whether professional guardians, volunteer guardians or family members. This document defines additional NGA standards for acceptable business practice and program design for non-family guardians who are developing or operating agencies or programs providing professional guardianship services.
Sunday, January 15, 2017
On January 26, 2017, the Elder Justice Initiative will be hosting a webinar to highlight resources and information available on the Elder Justice Website.
This webinar will be hosted by Susan Lynch and Sid Stahl and will introduce you to the Department of Justice’s Elder Justice Website and will help you to navigate the many tools and resources available on DOJ’s website for elder abuse prosecutors, law enforcement, victim advocates, victims, families, caregivers, and elder abuse researchers. These tools can help you find assistance when in need, get involved in combatting elder abuse and financial exploitation, and educate you on elder justice programs operating at the federal, state, and local levels.
Registration opens the week before the webinar.
Thursday, January 12, 2017
Should Home Care Providers Be Permitted to Seek Broad Waivers of Liability from Elderly Clients? (And if so, are there clear standards for a knowing waiver?}
Recently an attorney wrote to me about an elderly client who had been victimized by a home care worker hired through an agency; the allegations included physical abuse, intimidation, identity theft, failure to provide care, theft of personal possessions and false imprisonment. Not too surprisingly, the specific worker was long gone once the harm was discovered by non-resident family members. Significantly, the family also learned that the mother had signed the agency's standard contract withtwo pages of single-spaced type that covered everything from hours to wages, and which included a numbered paragraph purporting to grant a broad waiver of the agency's liability for actions of the individuals sent to the home of the elderly client. Key language provided:
"CLIENT and/or CLIENT's agent/responsible party agrees on behalf of CLIENT, CLIENT's agent/responsible party, beneficiaries, heirs, and/or family/household members to release [agency], owner, officers, directors, agents and employees, office, office directors, office employees, and Caregiver from any and all liability, potential or real, for any injury, claim, damage, or loss, including attorney's fees, incurred in connection with the performance of this agreement and all services, incurred in connection with the performance of this agreement and all services performed by Caregiver for the CLIENT, including but no limited to assisting CLIENT with his/her medications and providing transportation to Client or any member of CLIENT's family/household, except for gross negligence...."
The attorney asked about any state regulatory language that would limit liability waivers or require, at a minimum, bold faced type or large type for such attempted waivers when used with elderly or disabled clients. Those receiving home care may be uniquely vulnerable to unwitnessed abuse, and also less likely to report abuse because of the fear of the "worse" alternative, a nursing home. In the state in question, regulations require certain disclosures to be made in a form "easily read and understood," but the regulations don't specifically address (nor prohibit) waivers of the company's liability. See e.g. PA Code Section 611.57.
What about in your state? Is there relevant regulation? Alternatively, is there a "best" (or at least better) practice in the home care industry when seeking contractual waivers of liability? The issue reminds me of an article written in the mid-1990s by Charlie Sabbatino discussing the one-sided nature of nursing home contracts in the absence of careful regulation protecting patient rights. He wrote:
Broadly worded waivers of liability for personal injury are likely to be unenforceable and void as a matter of public policy in most states. Residents are most commonly asked to consent to absolute waivers for injury caused by other patients or by independent contractors in the facility, or for injury occurring outside of the facility, such as on a field trip. Federal and state nursing home laws have not squarely addressed personal injury waivers. even though the whole thrust of the regulatory framework is expressly intended to set standards for the protection of residents' health, safety, and welfare.
And the subtitle of the article on Nursing Home Contracts is "Undermining Rights the Older Fashioned Way."
January 12, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, January 11, 2017
I'm much overdue in writing about a terrific, recent workshop at Arizona State University's Sandra Day O'Connor College of Law on "The Aging Brain." For me it was an ideal gathering of disciplines, including experts in neurology, psychology, health care (including palliative care and self-directed aid-in-dying), the judiciary, and both practitioners and academics in law (not limited to elder law). Even more exciting, that full day workshop (11/18/15) will lead into a public conference, planned for fall 2017.
Key workshop moments included:
- Preview of a potentially ground-breaking study of early-onset Alzheimer's Disease (AD) centered on a family cluster in the country of Columbia with a genetic marker for the disease and a high incidence of onset. By "early onset," we're talking family members in their 40s. The hope is that by studying the bio-markers in this family, that not only early onset but later-in-life onset will be better understood. Eric Reiman, with professional affiliations with Banner Health, Arizona State University and University of Arizona, spoke at the workshop, and, as it turned out, he was also featured on a CBS 60 Minutes program aired a short time later about the family-based study. Here's a link to the CBS transcript and video for the 60 Minutes program on "The Alzheimer's Laboratory."
- Thoughtful discussion of the ethical, legal and social implications of dementia, including the fact that self-directed aid-in-dying is not lawful for individuals with cognitive impairment. Hank Greely from Stanford University Law and Medical Schools, and Professor Betsy Grey for ASU's Sandra Day O'Connor College of Law led discussions on key issues. As biomarkers linked to AD are identified, would "you" want to know the outcome of personal testing? Would knowing you have a genetic link to AD change your life before onset?
- Overview of recent developments in "healthy" brain aging and so-called "anti-aging" treatments or medications, with important questions raised about whether there is respected science behind the latest announcement of "breakthroughs." Cynthia Stonnington from the Mayo Clinic and Gary Marchant from ASU talked about the science (or lack thereof), and Gary raised provocative points about the role of the FDA in drug approvals, tracking histories for so-called off label uses for drugs such as metformin and rapamycin.
I very much appreciate the opportunity to participate in this program, with special thanks to Betsy Grey and federal Judge Roslyn Silver for making this possible. I've also enjoyed serving as occasional guest in Judge Silver's two-semester Law and Science workshop with ASU law students. Thank you! For more on the Aging Brain programming at ASU, see here.
January 11, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Programs/CLEs, Science | Permalink | Comments (0)
Tuesday, January 10, 2017
The American Bar Association Senior Lawyers Division is offering a free webinar on January 19 at noon on scams, as part of its series on preventing elder abuse. The webinar will include panelists from the Consumer Financial Protection Bureau, DOJ and the Harry & Jeanette Weinberg Center for Elder Abuse Prevention. Topics to be covered include the frequency of elder abuse, trends in scams, scam prevention, what to do if a victim, and civil remedies. Click here to register.
Sunday, December 25, 2016
The National Center for State Courts, in conjunction with the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) released its Strategic Action Plan 2016 Adult Guardianship Initiative which was adopted on December 1, 2016. According to the report "[t]he mission of the Adult Guardianship Initiative is to improve state court responses to guardianship and conservatorship matters. This Initiative encourages the use of less restrictive alternatives, the prioritization of the protected person’s individual rights, active court monitoring and oversight, the modernization of processes, and the restoration of rights."
The initiative has 4 goals:
Develop and maintain a partnership of key stakeholders ...
Prioritize the protection and enhancement of individual rights ...
Promote modernization and transparency in the guardianship process ...
Enhance guardianship/conservatorship court processes and oversight ...
The initiative also lists several concept projects: (1) Funding and Implementing a Guardianship Court Improvement Program; (2) Conservatorship/Guardianship Accountability Project: Building a National Resource that uses Technology and Analytics to Modernize the Process; (3) National Summit for Courts on Improving Adult Guardianship Practices; (4) Establishing Judicial Response Protocols to Address Guardianship Abuse, Neglect and Exploitation; (5)Developing a Mentor Guardianship Court Program; and (6) Building a Research Portfolio and Developing Court Performance Management Systems.
Visit the Center for Elders and the Courts for more information.
December 25, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, December 8, 2016
The Senate passed the 21st Century Cures Act, HR 34, on December 7, 2016. Having already passed the House, the bill goes to the President for signature. There are two specific provisions in the Cures Act that bear mention:
The Special Needs Trust Fairness Act in section 5007, which allows a beneficiary with capacity to establish her own first-party SNT (finally) and Section 14017 which deals with capacity of Veterans to manage money.
Section 5007 provides:
SEC. 5007. Fairness in Medicaid supplemental needs trusts.
(a) In general.—Section 1917(d)(4)(A) of the Social Security Act (42 U.S.C. 1396p(d)(4)(A)) is amended by inserting “the individual,” after “for the benefit of such individual by”.
(b) Effective date.—The amendment made by subsection (a) shall apply to trusts established on or after the date of the enactment of this Act.
Section 14017 amends 38 USC chapter 55 by adding new section 5501A "Beneficiaries’ rights in mental competence determinations"
“The Secretary may not make an adverse determination concerning the mental capacity of a beneficiary to manage monetary benefits paid to or for the beneficiary by the Secretary under this title unless such beneficiary has been provided all of the following, subject to the procedures and timelines prescribed by the Secretary for determinations of incompetency:
“(1) Notice of the proposed adverse determination and the supporting evidence.
“(2) An opportunity to request a hearing.
“(3) An opportunity to present evidence, including an opinion from a medical professional or other person, on the capacity of the beneficiary to manage monetary benefits paid to or for the beneficiary by the Secretary under this title.
“(4) An opportunity to be represented at no expense to the Government (including by counsel) at any such hearing and to bring a medical professional or other person to provide relevant testimony at any such hearing.”.
The effective date for the VA amendment is for "determinations made by the Secretary of Veterans Affairs on or after the date of the enactment...."
The President is expected to sign the bill soon. More to follow.
December 8, 2016 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, Veterans | Permalink | Comments (0)
Monday, December 5, 2016
The 1st Annual Report of the White House Legal Aid Interagency Roundtable (WH-LAIR), Expanding Access to Justice, Strengthening Federal Programs was released last month. A fact sheet accompanying the report is available here. According to the DOJ website, the reason for WH-LAIR is
to raise federal agencies’ awareness of how civil legal aid can help advance a wide range of federal objectives including improved access to health and housing, education and employment, family stability and public safety. The Legal Aid Interagency Roundtable’s message included that providing legal assistance to people who cannot afford it can also have substantial economic benefits by preventing outcomes that are harmful to them and expensive for the communities.
WH-LAIR is made up of a number of federal agencies. The fact sheet highlights some of the accomplishments, including an ElderJustice AmeriCorp which provides teams of attorneys and paralegals to help elder abuse victims. This first report covers the 4 years of operation of WH-LAIR. The report highlights the participating agencies' efforts to incorporate legal aid into their programs. policy recommendations to improve access to justice, furthering strategic partnerships, furthering data collection, evidence-based research, and concomitant analysis. The full report has 3 sections: (1) legal aid overview and its correlation to advancing federal priorities, (2) how the agencies have incorporated legal aid into their programs and (3) future opportunities to continue and expand their work.
December 5, 2016 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management | Permalink | Comments (0)
Thursday, December 1, 2016
The Administration on Aging (AoA) issued FAQ on the Long Term Care Ombudsman Program. The purpose of the FAQs is " to assist State Agencies on Aging, States’ Long-Term Care Ombudsman Programs, and other entities that work with Ombudsman programs with implementation of the State Long-Term Care Ombudsman Programs Rule." Each FAQ provides extensive explanation as well as cites to the appropriate sections of the CFR.
Tuesday, November 29, 2016
It is estimated that one in ten adults over the age of 60 is a victim. But the truth is we don’t know for certain how many older adults are suffering from abuse. In the eighth edition of Aging Matters, Nashville Public Television explores the issues behind elder abuse, neglect and exploitation.
Experts suggest that our understanding of elder abuse lies decades behind that of child abuse and domestic violence. Elder abuse is underreported. It lacks clear legal definition and is complicated by ethical challenges. The system of response is different depending on where you live.
What are the risk factors, what can we do to protect ourselves and our loved ones, and what is our responsibility to intervene for those in need? The questions are simple, but the answers are not. Find out more in Aging Matters – Abuse & Exploitation.
The story is accompanied by a panel discussion and includes background resources.
Sunday, October 23, 2016
The National APS Resource Center released a new research brief, Elder Abuse, Mother Abuse & Parenting in Later Life. The focus of the brief is older mothers with adult children who are described as difficult. "The sample is low income and minority older women 62 years and older. All of the women had allowed their adult children to move back into the family home when the adult children had [become] unable to support themselves due to mental health issues, break up of a romantic relationships or unemployment." The brief explains the stress these mothers undergo and the reasoning for why the mothers allowed their children to move back in with them and why they don't make the children move out once problems occur. Consider this from the brief,
A surprising finding is that none of the women ever used the word “abuse,” including those who had contacted law enforcement and/or had obtained an order of protection. Instead, they presented themselves as mothers who made the decision to protect their adult children over their own personal comfort or safety.
As far as policy implications, "[a] surprising finding is that none of the women ever used the word “abuse,” including those who had contacted law enforcement and/or had obtained an order of protection. Instead, they presented themselves as mothers who made the decision to protect their adult children over their own personal comfort or safety. " The brief suggests that APS workers and elder mothers develop a "safety plan" for addressing both the mother and child's needs.
Friday, October 21, 2016
LeadingAge, the trade association that represents nonprofit providers of senior services, begins its annual meeting at the end of October. This year's theme is "Be the Difference," a call for changing the conversation about aging. I won't be able to attend this year and I'm sorry that is true, as I am always impressed with the line-up of topics and the window the conference provides for academics into industry perspectives on common concerns. For example, this year's line up of workshops and topics includes:
- General sessions featuring Pulitzer Prize winning journalist Charles Duhigg on the "The Science of Productivity," 2013 MacArthur Fellow and psychologist Angela Duckworth on the the importance of grit and perservance for successful leadership, and famed neurosurgeon and speaker Sanjay Gupta on "Medicine and the Media."
- Hundreds of sessions, organized by "interest groups":
October 21, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (2)
Monday, October 10, 2016
In April 2015, we followed the Iowa state criminal trial of a former state legislator for allegedly having sexual relations with his wife in her nursing home after she was diagnosed with Alzheimer's Disease. See here, here and here, for example. The charge of "sexual assault" was based on an Iowa statute that criminalized a sexual act "between persons who are not at the time cohabiting as husband and wife" if "the other person is suffering from a mental defect or incapacity which precludes giving consent." See Iowa Criminal Code Sections 709.1, 709.1A, and 709.4(2)(a). After a several day high-profile trial -- where emotions were running high on all sides with family members, witnesses and attorneys -- the jury acquitted Henry Rayhons, then age 79. The prosecutor took the position that any theory the wife "consented" to sexual relations was completely irrelevant as a matter of law, because of her debilitating mental condition.
The legal proceedings did not stop with the criminal case. A year later, Henry Rayhons filed a civil suit for damages, alleging various state law claims such as (1) defamation, (2) intentional infliction of emotional distress, (3) malicious prosecution, (4) negligent infliction of emotional distress, (5) negligence, and (6) loss of consortium against various individual defendants. Defendants named on certain of the state law counts included two adult daughters of his deceased wife and his wife's treating physician at the nursing home. Separate counts named the nursing home itself on state law claims of vicarious liability. Count IX of the petition alleged a claim under the federal civil rights statute, 42 U.S.C. Section 1983, against the state prosecutor in the criminal case. In July 2016, the prosecutor, Susan Krisko, removed the case to federal court and filed a motion for summary judgment.
October 10, 2016 in Advance Directives/End-of-Life, Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Tuesday, September 20, 2016
I'm currently on sabbatical and working on a couple of big projects. I've been digging deeper into how banks approach consumer protection issues for older customers. Awareness of the potential for financial exploitation of elders among bankers is clearly at an all-time high.
One of the practical lessons, however, is that each banking institution does it differently when responding to concerns. For example, one bank I met with has a system of "alerts" for tellers about prospective transactions, such as where an older customer is accompanied into the bank by "problematic" befrienders. Another bank said that before it could take any action in response to a request made by a valid agent with a broadly-worded power of attorney, the agent would have to be added as a party "on" the account in question. The latter approach, although understandable on one level, seems to pose the potential for additional problems. One-on-one meetings with high-level officials at major banks makes me realize just how challenging this would be for the average family member or concerned friend of a prospective victim.
Along this line, I recently received news of a timely CLE program. The Pennsylvania Bar Institute is hosting an "update" program on Consumer Financial Services and Banking Law on October 18, with simulcasts offered in several locations around Pennsylvania. The Pennsylvania Bankers Association is co-hosting the program.
Hon. Robin L. Wiessmann
Leonidas Pandeladis, Esq.
Jeffrey P. Ehrlich, Esq.
Deputy Enforcement Director, Consumer Financial Protection Bureau, Washington, DC
The planned program will include updates on the latest rules affecting consumer protection measures, and -- I suspect -- will likely address some of the "hot" issues, such as the Wells Fargo "mess."
September 20, 2016 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Friday, September 16, 2016
Jeffrey Skatoff, Esq. sent me a link to his firm's recent blog post (written by an associate) about a Florida appellate case concerning capacity to sign a deed. I thought this was an interesting case, and wanted to share it with you. Here is the post, Partially Incapacitated Ward Makes Valid Deed
When a person is found incapacitated and placed under a guardianship, the exercise of some or all of that person’s rights are exclusively delegated to the guardian. That is, those rights which the court finds the person (ward) unable to personally exercise can only be exercised by the guardian. Thus, when a ward takes an action which he or she has lost the right to take, that act is typically void ab initio and treated by the courts as if it never happened.
Recently, Florida’s Third District was called upon to review a trial court’s judgment invalidating a deed executed by a ward in Marcinkewicz v. Quattrocchi, 2016 Fla. App. LEXIS 13403. The facts in Marcinkewicz were as follows: The Ward’s son moved into her home in 2007. The son maintained that he had reached an understanding with his mother that she would leave the home to him upon her death in exchange for his agreeing to care for her. In 2009, the Ward moved into the home of her daughter and son-in-law. A year later, the Ward was declared incapacitated and her daughter became guardian of her person and property. Two years later, the guardianship over the Ward’s property was dissolved but a limited guardianship over her person remained. In 2013, the Ward visited her longtime attorney and executed a deed transferring her home to the son-in-law.
Upon receiving the deed, the son-in-law filed suit to eject the son from the property. The son counter-sued to invalidate the deed and for other relief. The trial court found that the Ward lacked capacity to execute the deed and that, as a result, the deed was void. The trial court further found that because the deed was void, the Ward still owned the property and the son had to vacate the property.
The Third District reversed the trial court’s finding that the deed was void but affirmed its ruling that the son had no rights in the property. The appellate court began by noting that the validity of the document is presumed and that this presumption can only be overcome with “clear, strong and convincing evidence." (quoting Espriella v. Delvalle, 844 So. 2d 674, 676 (Fla. 3d DCA 2003) (internal citations omitted). The appellate court noted that the trial court erred in assigning the burden of proving the deed’s validity to the son-in-law/grantee when it was the son who should have had to produce evidence in support of a finding that the Ward lacked capacity to execute the deed. Because the son failed to produce any evidence that the Ward lacked capacity at the time she executed the deed, the trial court’s finding was without evidentiary support. Because the deed was valid, the son had no rights in the property, equitable or otherwise. Accordingly, the trial court’s order that the son vacate the premises was upheld.
Friday, August 26, 2016
The long-term care industry depends hugely on the services of "nursing assistants," also known as NAs, who provide basic but important care for residents or patients under the direction of nursing staff (who, in turn, are usually Licensed Practical Nurses or Registered Nurses). As the U.S.Department of Labor describes, NAs typically perform duties such as changing linens, feeding, bathing, dressing, and grooming of individuals. They may also transfer or transport residents and patients. Employers may use other job titles for NAs, such as nursing care attendants, nursing aides, and nursing attendants. However, the Department of Labor makes a distinction between NAs and other key players in long-term care, including "home health aides," "orderlies," "personal care aides" and "psychiatric aides."
According to DOL statistics, the top employers of NAs include skilled nursing facilities (37% of NAs), continuing care retirement communities and assisted living facilities (together employing some 18% of NAs), and hospitals and home care agencies, which each employ about 6% of the NA workforce.
For many years, states have offered licensing for nursing assistants. The designation of CNA or "certified nursing assistant" meant that the nursing assistant had satisfied a minimum educational standard and had successfully passed a state exam. As another key protection for vulnerable consumers, CNAs had to pass background checks, involving fingerprints and criminal history searches.
In Arizona, however, now I'm hearing a new label: LNAs or Licensed Nursing Assistants. The Arizona Board of Nursing continues to license CNAs, but now it is offers the designation of Licensed Nursing Assistants. What's the difference? Frankly, not much, at least in terms of skill levels. Then why the change?
In Arizona, CNAs and LNAs have the same educational requirements, and must pass the same test and satisfy the same work credits. But, as of July 1, 2016, individuals seeking the LNA designation will be required to pay the state a fee to cover their mandatory background checks, including fingerprinting. CNAs, however, will no longer be required to undergo background checks or fingerprinting.
What is this about? Arizona is trying to save money. It seems that state and federal laws prohibit state authorities from mandating that CNA candidates cover the cost for their own background checks. In other words, if the candidate showed financial need in the application process, the state was required to pick up the costs for any background checks. Let's remember that the average wages of CNAs are relatively low -- the national mean is less than $30,000 per year. Presumably that is the reason behind the older laws limiting how much states can charge CNA applicants for their own background checks. By creating a new designation, LNA, Arizona takes the position it avoids the federal restriction.
But, what about the public? Will the public understand that CNAs licensed after July 1, 2016 will not be subject to fingerprinting and background checks? Responsible employers would, presumably, require such checks or limit their hires to LNAs. At least, let's hope so.
I also learned that apparently Arizona does not require "continuing" education for either CNAs or LNAs. (Again, you would hope that responsible employers would either provide or require such education.) Arizona used to require a minimum of 120 hours every 2 years of what are, in essence, "job credits" -- i.e., proof of employment in an NA position -- to maintain the CNA license. Recently, however, Arizona diluted that requirement to just 8 hours every two years for both CNAs and LNAs.
Arizona does have a useful website where current or prospective employers, including families, can check the licensing status of CNAs or LNAs. The website is searchable by name or license number, and shows whether an applicant has failed the entrance exam, or has withdrawn an application or lost the license.
Are other states creating this LNA designation as a "workaround" (loophole?) for financing background checks for CNAs? Let us know!
August 26, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)