Friday, April 29, 2016
It seems nursing home operators are calling upon some of the same "trade practice" laws they are sometimes accused of violating, in an effort to thwart what the operators see as misleading advertising by personal injury attorneys.
One of the latest suits has reached the Georgia Supreme court, where the Mississippi-based law firm of McHugh Fuller Group is seeking to overturn a lower court's injunction preventing it from running a statewide ad campaign, including full-page color ads, seeking potential clients who "suspect that a loved one was NEGLECTED or ABUSED" by a nursing home run by PruittHealth, Inc. From an April 27, 2016 Georgia Courts' summary of parties' arguments before the high court:
PruittHealth sued the law firm under the Georgia Deceptive Trade Practices Act, which authorizes a court to issue an injunction (a court order requiring a certain action be halted) against anyone who uses someone’s trade name without permission if there is even a “likelihood” that the use will injure the business reputation of the owner or dilute its trade name or mark. The trial court entered a temporary restraining order against the law group, scheduled a hearing and notified the parties that it intended to consider PruittHealth’s request for a permanent injunction. The trial court issued another order on June 1, 2015, permanently stopping the law group from running ads that used PruittHealth’s trade names, service marks, or other trade styles. The law group filed a motion for reconsideration, which the trial court denied. The law firm is now appealing to the Georgia Supreme Court....
The law group argues, among other things, that the court erred in determining the ads violated Georgia Code section 10-1-451(b), which is called Georgia’s “antidilution statute.” That statute says dilution occurs “where the use of the trademark by the subsequent user will lessen the uniqueness of the prior user’s mark with the possible future result that a strong mark may become a weak mark.” The law firm argues that it is not eroding the strength of PruittHealth’s mark, but is only identifying specific nursing homes against which it is accepting cases, and that PruittHealth failed to demonstrate that actual injury occurred as a result of the ads.
This isn't the first time that the McHugh Fuller Law Group has been on the receiving end of a lawsuit by a nursing home company. In February 2015, Heartland of Portsmouth in Ohio and McHugh Fuller Law Group were in federal court arguing about diversity jurisdiction over Heartland's claim the law firm was using "false and misleading advertising in order to encourage tort litigation" against the nursing home's operations in Ohio. Similar litigation, seeking injunctive relief, was underway by Genesis Healthcare Corporation against the McHugh Fuller firm in West Virginia in 2007, although it is unclear from my research whether either of those cases reached a final resolutions.
My thanks to Professor Laurel Terry, Dickinson Law, for pointing me to this ABA Journal post that encouraged my search for more about these cases.
Sunday, April 24, 2016
Here's is a new podcast of an interview with Rick Black on All Talk Radio (about 15 minutes, starting at the 3:25 minute mark), who has strong words about elder abuse based on his family's experiences with a guardianship in Clark County Nevada, plus his own additional research about guardianship systems in Nevada and beyond. (You may have to give this time to load, as it is an embedded video file).
For more, read the April 4, 2016 Editorial from the Las Vegas Review-Journal, entitled "Elder Abuse."
April 24, 2016 in Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, April 21, 2016
Someone asked me recently about "alternatives" for law students interested in helping older persons or disabled adults. I said, in essence, "figure out how to start and operate a cost-effective, soundly-managed, and reliable, nonprofit rep-payee organization in your community." (And understand that you won't make a fortune, but you can make a good living with a well-run nonprofit!)
In "Ways to Meet the Growing Need for Representative Payees," Justice in Aging recommends that the Social Security System partner with organizations, including attorney organizations, to establish a "sustainable program to help recruit representative payees who are reliable and suitable to perform all of the required duties" of a rep-payee for those receiving federal program benefits but who often are unable to manage the money soundly. In some instances they may have no easy access to reliable family or friends. The "unbefriended," who, in turn, may be vulnerable to those with bad intentions:
Aging demographics and the predicted increase in cognitive deficits and other chronic conditions are expected to create a dramatic need for representative payees. For many of these seniors, family members and friends may be unavailable to serve in this capacity. SSA should think broadly about the groups of people eligible to serve as payees and then create standards for appointment, require a more in-depth level of training, and increased accountability.
Justice in Aging closes by urging that SSA's "recruitment efforts should be geared towards eligible individuals with legal experience as well as other fields with relevant backgrounds, such as social workers and religious community leaders."
Monday, April 4, 2016
Under most state laws governing guardians and conservators, appointed fiduciaries are required to make reports to the court at regular intervals, usually beginning with the initial inventory of the ward's assets, followed by distribution reports on at least an annual basis. As part of the ongoing investigation into accountability for guardianships under the jurisdiction of the district court in Clark County (Las Vegas) Nevada, an internal court review apparently demonstrated key weaknesses. As reported by the Las Vegas Review-Journal in an April 1, 2016 article:
An internal review of guardianship cases in Clark County showed that less than half are in compliance with state laws and that most vulnerable adults are stripped of rights without an attorney.
District Court Judge Diane Steele provided an in-depth overview of the county’s guardianship caseload during a presentation to the Nevada Supreme Court commission studying guardianship. The panel has been meeting since last summer in an effort to fix the state’s troubled system. The commission was formed following a Review-Journal series highlighting the flaws and lack of oversight of county’s guardianship system that watches over thousands of at-risk adults, called wards.
Most compliance issues stemmed from family members not knowing they needed to file annual reports for their incapacitated family member, according to the report.
But the study showed that about 850 of the 3,800 active cases have not filed the required annual accountings that show how a ward’s money was distributed and spent over a 12-month period. In 975 cases, the initial inventory — which lists the assets of the ward such as real estate, vehicles and liquid assets — was also missing, the report said.
For an interesting national perspective on the need to establish more effective court systems, from the perspective of the National Association for Court Management (NACM), see this well-presented recording of a webinar on "How to Protect Our National's Most Vulnerable Adults through Effective Guardianship Practices." The webinar, with excellent slides and lasting about 50 minutes (plus another 10 minutes of Q & A), is undated but appears to be fairly recent, as one of the slides features news reports from Las Vegas.
Monday, March 21, 2016
The two waves of legislation follow media reports and public protests in specific locations in Florida, including Palm Beach and Sarasota. The latest law establishes a new state-wide Office of Public and Professional Guardians, and includes directions that the Office establish a system for appointment and monitoring of trained professionals, to serve where necessary as limited guardians, guardian advocates or plenary guardians. Such "public" guardians are intended to be a last option, when family members are inappropriate, unable or unwilling to serve.
In addition to the legislative actions, there are reports of court-directed changes to address potential conflicts of interest that could reduce the incentive for critical review and oversight. For example, in Palm Beach, media reports put a spotlight on relationships between judges and lawyers in that county and especially on one judge's spouse, a lawyer who often received court-appointments and who was criticized for billing and accounting practices in some cases where she was the court-appointed guardian.
For earlier reports on Florida's guardianship history, see this Blog's report on "Florida to Consider Establishment of Office of Public and Professional Guardians."
For a longer perspective on the recognized need for more effective state systems for guardianship review, see the GAO report (11-678), released in 2011, that warns that "Given limited funding for monitoring, [state] courts may be reluctant to invest in [better] practices without evidence of their feasibility and effectiveness." See also GAO 2006 report (06-1086(T)), titled "Guardianships: Little Progress in Ensuring Protection for Incapacitated Elderly People."
Further, for findings and recommendations made to the Uniform Law Commission following a summit in 2011, see University of Missouri Law Professor David M. English's report, "Amending the UGPPA to Implement the 3rd National Guardianship Summit."
Friday, March 18, 2016
Does California's New "Revocable Transfer on Death (TOD) Deed" Increase Risk of Elder Abuse and Estate Costs?
Colleagues in California recently shared with me information on California's adoption of statutory recognition of "Transfer on Death Deeds" or TODs under AB 139. The law was signed by the Governor on September 21, 2015 and became effective on January 1, 2016. The law includes "simple" forms, both for establishing the "revocable" transfer of title, and for any "revocation" of such a deed. Proponents of the legislation cite simplicity and low cost as advantages of using such deeds. The legislative history for the law explains:
The bill would provide, among other things, that the deed, during the owner’s life, does not affect his or her ownership rights and, specifically, is part of the owner’s estate for the purpose of Medi-Cal eligibility and reimbursement. The bill would void a revocable TOD deed if, at the time of the owner’s death, the property is titled in joint tenancy or as community property with right of survivorship. The bill would establish priorities for creditor claims against the owner and the beneficiary of the deed in connection with the property transferred and limits on the liability of the beneficiary. The bill would establish a process for contesting the transfer of real property by a revocable TOD deed. The bill would make other conforming and technical changes. The bill would require the California Law Revision Commission to study and make recommendations regarding the revocable TOD deed to the Legislature by January 1, 2020.
Critics of the law, including California Advocates for Nursing Home Reform (CANHR), warn that despite the "simple" label, the appropriate use of such transfers in estate planning is anything but simple, and such deeds pose another opportunity for undue influence and manipulation of elders.
The spring issue of CANHR's Advocate newsletter (available via subscription, following a "donation" to the organization) further comments:
It is important to note that thousands of California citizens who are 55 years of age or older and who have recently signed up for health care under California's Medic-Cal expansion program will now have their estates subject to Medi-Cal recovery when they die. If their homes were transferred before their deaths, transferred to an irrevocable trust or if they transferred the property and retained an irrevocable life estate (another cheap, but effective way to transfer property) there will be no estate claim on the home. But, because the [new law's] TOD is revocable and the transfer and the transfer of the property under a TOD does not occur until the death of the owner, these TODs are subject to estate recovery, which means that those same low-income elders, who are likely to execute TODs will also be more likely to be on Medi-Cal and thus [inadvertently] subject their estates to recovery.
CANHR is "embarking on a campaign to educate consumers about the impact" of the new California law.
Thursday, March 17, 2016
To follow up on an earlier Elder Law Prof Blog post about recently enacted "visitation rights bills," we note that the Los Angeles Times has reported on advocacy efforts by high-profile children such as Catherine Falk, daughter of actor Peter Falk, and Kerri Kasem, daughter of Casey Kasem, in support of similar legislation in other states:
Though Falk and Kasem work independently, they've become a powerful one-two punch for reforming visitation laws, stumping for change in more than 30 states. Falk says her proposed legislation is now being considered in 10 states; Kasem's bill has already been adopted in three — California, Iowa and Texas.
The two agree their efforts are getting notice because of their celebrity fathers, and have little problem with such an advantage. "This isn't the Casey Kasem Bill, or the Mickey Rooney Bill, or the B.B. King Bill," Kasem said, referring to other personalities who went through similar elder battles. "It's the Visitation Rights Bill, and it affects thousands in the U.S."
The comments posted in reaction to the article are also interesting, with some pointing out that in both the Kasem and Falk families, the disputes involved women married for decades to the celebrities in question. Others point to the question of how ordinary families cope with these kinds of access issues, especially without the money or time to pursue rulings by courts.
March 17, 2016 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, March 16, 2016
A recent opinion in Matter of L.H (M. H.), a contested guardianship matter that was eventually settled, provides a window into legal fees. In this New York case, following a settlement, the court was asked by the parties to determine reasonable fees to be paid to the attorney who served as the "court evaluator" and the attorney who successfully represented the Alleged Incapacitated Person (AIP) in resisting the guardianship.
The court noted the guardianship was part of larger family disputes following a divorce. As part of the settlement, the petitioner, a family member of the AIP, withdrew the petition for appointment of a guardian. The parties stipulated that the fees could not exceed $50,000. That amount was set aside for any payments ordered by the court, funded by a trust held by the petitioner (not the AIP).
The court considered this withdrawal to be the "functional equivalent" of a dismissal, giving the court discretion under the statute to allocate fees in such proportions as it deemed just.
As required by New York Law, the court made detailed findings. The court concluded:
- "[The evaluator] performed in an extraordinary manner under difficult circumstances ... [and her] report focused a spotlight on the amended petition's lack of merit, and was instrumental in resolving this proceeding." The court awarded the evaluator $22,748 for 82.75 hours of professional services at $275 per hour.
- "[T]he efforts [of the attorney for the AIP] led to a positive outcome for the AIP, with her civil liberties fully intact, there being no need for a guardian for her. Attorneys who have similar experience and status within the guardianship bar charge between $400 and $600 dollars per hour for their services. However, in view of the agreed upon $50,000 cap on the possible awards for the feeds incurred... [the attorney for the AIP] is awarded $27,051.25... as reasonable compensation (at $335.00 per hour) for 80.75 hours of legal services."
The court observed that the lawyer for the AIP "is one of the preeminent guardianship and elder law attorneys [in] New York State."
Monday, March 14, 2016
Here is a 12 minute account of two families involved in older person guardianships, where the court appointed a single, non-family member as guardian in Clark County, Nevada. The presentation is by Al Jazeera America, aired for the first time in March 2016:
The events in Nevada have sparked larger concerns about "guardianship abuse." The video is both disturbing and frustrating, especially as we hear primarily from family members in the presentation. There are hints of important, underlying legal issues, including:
- adequacy of notice to alleged incapacitated persons (AIP) prior to any court proceeding;
- adequacy of notice to family members of the AIP
- proper use of guardians ad litem
- availability of legal counsel to the AIP
- what procedural requirements exist for a finding of incapacity
- what definition is used for incapacity
- whether limited guardianships are used, and if not, why not
- what training, if any, is given to guardians
- what accounting methods are used for review of conserved funds
The important topics revealed in the news reports seem ripe for in-depth research by objective academics, including law school academics. Anyone looking for that "hot" topic for next summer's project?
For earlier Elder Law Prof Blog posts on this topic see:
Friday, March 11, 2016
From the most recent issue (issue No. 3) of Bifocal, the electronic journal published by the ABA Commission on Law and Aging, links to several interesting feature articles:
When lapses in memory or physical issues start to affect activities of a loved one's daily living, such as cooking, eating, bathing, or paying bills, it's time to evaluate their needs and living situation. As the affected loved one's care needs increase, attorneys can assist with drafting caregiving/personal care agreements.
To ensure that all beneficiaries can receive their payments and make proper use of funds, Congress has granted the Social Security Administration (SSA) the authority to appoint third parties, known as representative payees, to receive and manage payments when the beneficiary is unable to do so. With Alzheimer's disease and other cognitive impairments on the rise, more seniors find themselves unable to manage their own benefits. SSA is currently exploring additional ways to identify seniors who may be in need of a representative payee. When working with seniors or caring for loved ones, please be aware of the following information about the rep payee program to help identify seniors in need.
Emeritus pro bono practice rules can be effective tools for recruiting volunteer attorneys. Specifically, by reducing some of the licensing burdens for attorneys who agree to limit practice to pro bono only, these rules are designed to encourage pro bono service. Whether these rules are actually effective in encouraging pro bono service, however, is an empirical question. To answer that question, a short online survey was done in 2014 returning modest data. In 2015 the ABA Standing Committee on Pro Bono and Public Service--in collaboration with the ABA Commission on Law and Aging--launched a project to collect more complete data on participation, the number of hours, and what recruitment methods appear to be most successful.
The abuse of older people is likely to worsen as Australia's population ages and relatively wealthy baby boomers become vulnerable to mercenary family members and carers.
The federal government is "appalled" at the extent of elder abuse and has asked the Australian Law Reform Commission to find ways to safeguard older Australians....
The article discusses the number of victims, risk factors, and perpetrators. Similar to the U.S., Australia doesn't have good data on elder abuse as far as how big a problem it is, "has to extrapolate from international research. "We say that it frequently is a form of family violence - because it happens within families - but the significant difference is that it's most often between generations," said Jenny Blakey from Seniors Rights Victoria. " The 4th annual national conference on elder abuse was held in Melbourne, Australia in late February. More information about the conference can be found here.
Thursday, March 10, 2016
The Gerontological Society of America has released the latest issue of its e-newsletter from the National Academy on an Aging Society. The March 2016 Public Policy & Aging Report is focused on elder wealth, cognition and abuse. As the forward explains
This edition of Public Policy & Aging Report is the fourth coproduced issue between the National Academy on an Aging Society and Age UK in 4 years. It comes at a prescient moment and deals with an increasingly recognized and important challenge: the impact of cognitive decline on the financial health of older people. Age UK has, for many years, been interested in cognitive aging and is recognized as an authority in this area. We were participants in the G7 Summit on Dementia, we contributed to the many G7 legacy meetings, and we were members of the 2014 World Innovation Summit on Health (WISH) dementia working group. In October 2015, we were cofounders of the Global Council on Brain Health, working with our partner in the United States, AARP. We also are very pleased to be hosting the World Economic Forum symposium on “Ageing, Cognitive Decline and Impact on Banking and Insurance” in London on February, 2016. In research, we pioneered one of the world’s leading studies on cognitive aging at the University of Edinburgh, the “Disconnected Mind,” a longitudinal study that is revealing the secrets of cognitive performance and age, in a way in which cross-sectional studies cannot.
We also have been partners in some of the United Kingdom’s leading research on elder financial abuse, notably with Brunel University in London. Our concern in all these endeavors is not only to generate evidence but also to use this knowledge and apply it to the benefit of our aging populations. Our mission is to improve later life, in the United Kingdom and internationally, and to achieve our vision of a world in which people can love later life. So, I welcome this edition, bringing together as it does leading experts from both sides of the Atlantic and distilling their accumulated wisdom into a volume which I hope will inspire, inform, and lead to action in this critical area.
Tuesday, March 8, 2016
The Justice Department in the Southern District of Illinois issued a press release on March 3, 2016 announcing a perpetrator in the midst of trial changed his plea to guilty. Nigerian Scammer Convicted Of On-Line Romance Fraud notes that the perpetrator, the ringleader, pleaded guilty to all charges. He was arrested in London in 2014 and at trial, "'the evidence established that [the perpetrator], a citizen of the Federal Republic of Nigeria, was the ringleader of a criminal organization operating within South Africa that targeted and stole from hundreds of women across the United States, including dozens in the St. Louis metropolitan area." noted Acting United states Attorney Porter. "Our office will continue to pursue justice for these victims in [the perpetrator's] prison sentence and in our never-ending efforts to get restitution."'
Sentencing is set for early in the summer, and "[b]y statute, [the perpetrator] faces a maximum prison sentence of 127 years, a fine of $250,000 on each of the eight counts of the indictment, and as much as five years of supervised release. He will also be required to pay restitution to the victims of his crimes."
Monday, March 7, 2016
In the last months before the death of Casey Kasem, children from his first marriage and his second wife engaged in a high profile struggle over where, how and with whom the aging celebrity would spend time, with the disputes -- and the famous disc jockey himself -- crossing state borders. The controversies lasted even after his death on June 15, 2014, as his second wife reportedly flew his body out of the U.S. for burial in Oslow, Norway.
Drawing upon these traumatic experiences, one daughter, Kerri Kasem, advocates for passage of state legislation in an effort to better define family members' rights of access and communication in such complicated family matters. Her foundation, Kasem Cares, will host a "Conference on Aging" on April 21-23, 2016 in Orange County California and it seems likely from the agenda that proposed better practices will be discussed.
To date, at least three states have adopted new laws that appear to reflect the legal issues in the Casey Kasem family disputes, including:
- Iowa, I.C.A. Section 635.635 (amended) and Section 633.637A (added), providing that all adult wards subject to a court-ordered guardianship continue to have the right to communicate, visit and interact with other persons, and that a court will approve a guardian's denial of such interaction "only upon a showing of good cause." Changes to the law became effective on July 1, 2015.
- Texas, Estates Code, Section 1151.055, "Application by Certain Relatives for Access to Ward; Hearing and Court Order, and Section 1151.056 on "Guardian's Duty to Inform Certain Relatives About Ward's Health and Residence," effective June 19, 2015. Together these guardianship-connected rules permit designated family members to apply for a court order permitting communication or visitation with a ward, and obligate a guardian to give family members notice of the ward's admission to medical facilities, change of residence, or death, unless the family member makes a written "waiver" of such communications. For more see the Texas Guardianship Law Update in the September/October 2015 issue of The Houston Lawyer.
- California, Assembly Bill No. 1085, amended Cal. Prob. Code Section 2351, to provide that not only does a person who is the subject of a guardianship or conservatorship continue to have "personal rights" such as the "right to receive visitors," but that the court may issue an order that "grants the conservator the power to limit or enforce the conservatee's rights, or that "directs the conservator to allow those visitors, telephone calls and personal mail." The California Probate Code was further changed to add provisions, Section 2361 and Section 4691, expressly providing that conservators shall mail notice of a conservatee's death to any spouse, domestic partner or, in essence, any person who has "requested special notice," and imposing a similar duty of notice regarding death of a principal, for certain agents acting under specified powers in a power of attorney for health care. For more on the California legislation, signed by California Governor Brown on July 14, 2015, and made effective on January 1, 2016, see the Los Angeles Times article, Casey Kasem Controversy Leads to New Rights for Children of Ill Parents.
These three new pieces of legislation, despite similarities in purpose -- i.e., recognition of family members' interest in continued communications with a loved one who has become a "court ward," -- are quite different in effect. It will be important to see whether such provisions can be used to ease family tensions or instead serve as a frustrating, procedural gauntlet for warring factions. The Texas law seems to me to go the furthest in recognizing an affirmative right of a family member to challenge an attempt by a guardian or conservator to limit access.
March 7, 2016 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Friday, February 19, 2016
George Washington Law Professor Naomi Cahn sent us a link to a Washington Post article exploring the impact of ever increasing number of Boomer Generation elders turning to younger generations for care:
Life’s challenges began to stack up as Rowe, 45, cared for her two young sons and also her mother. “I was emotionally exhausted,” said Rowe, who lives in Takoma Park with her wife and boys, ages 6 and 9.
Rowe is on the cusp of a fast-growing population — a mashup of Generation X and millennials — that is starting to care for a revolving door of young and older loved ones.
The term “sandwich generation” was coined in the 1980s to describe people who are squeezed between taking care of their children and their parents. Now, as members of the baby boom generation are entering their 70s, that sandwich is poised to become a footlong.
For more examples and discussion, read: How to Cope With Caring for Baby Boomer Parents While Raising Small Children. Thanks, Naomi!
Tuesday, February 16, 2016
Our friends at the Weinberg Center for Elder Abuse Prevention sent application information for law students interested in a summer 2016 internship in New York:
The David Berg Center for Law and Aging is seeking select students for its Summer 2016 internship programs. The Center 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 potentially be exposed to legal practice in all five boroughs of New York City and Westchester County. Students may have the opportunity to work collaboratively with Weinberg Center partners such as the New York 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 HIPAA regulations, questions surrounding legal capacity, immigration, 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. To apply, please send a resume, cover letter and writing sample to email@example.com.
Thursday, February 4, 2016
The National Center on Elder Abuse (NCEA) sent an email to the elderabuse listserv on February 4, 2016 that announced the release of a new brochure for family caregivers on how to advocate for those in their care with dementia. The email announcement explained that the
material was created by the USC Department of Family Medicine, with funds provided by the Archstone Foundation, and was developed using input from actual family caregivers of people with dementia through informant interviews and focus groups. The brochure provides information about elder abuse, tips for caregivers on how to protect and advocate for their loved ones, real life scenarios, and resources. The goal of this brochure is to help family caregivers of people with dementia to learn how to take care of themselves in order to prevent mistreatment....
The brochure explains elder mistreatment, offers tips on advocating for and protecting relatives with dementia and provides helpful contacts along with examples. The web version is available here and the print version, here.
Attorneys from Justice in Aging and Pro Seniors, Inc., with support from a grant from the Administration for Community Living, are offering a free webinar that targets the way in which older adults can lose benefits such as Social Security, SSI or Medicaid because of the actions by others who prey upon them.
The Webinar on "Recognizing and Remedying Elder Financial Abuse in Medicaid Denials" is on Tuesday, February 16, from 2 to 3:30 p.m. EST, and is part of a series on protection of older adults from abuse for the National Legal Resource Center, working in conjunction with the National Consumer Law Center.
Here's a link to the registration page -- and again it is free!
Thursday, January 28, 2016
Here are two recent appellate cases that offer views on issues of "accountability" by surrogate-decision makers.
In the case of In re Guardianship of Mueller (Nebraska Court of Appeals, December 8, 2015), an issue was whether the 94-year-old matriarch of the family, who "suffered from moderate to severe Alzheimer's disease and dementia and resided in a skilled nursing facility," needed a "guardian." On the one hand, her widowed daughter-in-law held "powers of attorney" for both health care and asset management, and, as a "minority shareholder" and resident at Mue-Cow Farms, she argued she was capable of making all necessary decisions for her mother-in-law. She took the position that appointment of another family member as a guardian was unnecessary and further, that allowing that person to sell Mue-Cow Farms would fail to preserve her mother-in-law's estate plan in which she had expressly devised the farm property, after her death, to the daughter-in-law.
The court, however, credited the testimony of a guardian-ad-litem (GAL), who expressed concern over the history of finances during the time that the daughter-in-law and the mother-in-law lived together on the farm, and further, expressing concerns over the daughter-in-law's plans to return her mother-in-law to the farm, even after a fall that had caused a broken hip and inability to climb stairs. Ultimately, the Court of Appeals affirmed the lower court's appointment of the biological daughter as the guardian and conservator, with full powers, as better able to serve the best interest of their elder.
Despite rejection of the POA as evidence of the mother's preference for a guardian, the court concluded that it was "error for the county court to authorize [the daughter/guardian] to sell the Mue-Cow property.... There was ample property in [the mother's] estate that could have been sold to adequately fund [her] care for a number of years without invading specifically devised property."
In an Indiana Court of Appeals case decided January 12, 2016, the issue was whether one son had standing to request and receive an accounting by his brother, who, as agent under a POA, was handling his mother's finances under a Power of Attorney. In 2012, Indiana had broadened the statutory authority for those who could request such an accounting, but the lower court had denied application of that accounting to POAs created prior to the effective date of the statute. The appellate court reversed:
The 2012 amendment did confer a substantive right to the children of a principal, the right to request and receive an accounting from the attorney in fact. Such right does apply prospectively in that the child of a principal only has the statutory right to request an accounting on or after July 1, 2012, but not prior to that date. The effective date of the powers of attorney are not relevant to who may make a request and receive an accounting, as only the class of persons who may request and receive an accounting, and therefore have a right to an accounting, has changed as a result of the statutory amendments to Indiana Code section 30-5-6-4. Therefore, that is the right that is subject to prospective application, not the date the powers of attorney were created
These cases demonstrate that courts have key roles in mandating accountability for surrogate decision-makers, whether under guardianships or powers of attorney.
January 28, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, January 22, 2016
In South Korea, "filial duty" is apparently a hot topic, as reflected by a recent Korean Supreme Court ruling and a public survey. And it is more than a theoretical concept or moral obligation, with "contract" law principles now coming into play. As reported in English by the Korea Herald, published on December 30, 2015:
More than 75 percent of South Koreans surveyed by a local pollster think “filial duty contracts” -- a legal document that makes it mandatory for all grown children to financially and emotionally care for their aged parents -- are necessary should they receive any gifts such as real estate or stocks from them.
The survey results were released two days after the Supreme Court ruled in favor of an elderly father who filed a suit against his son, who, in spite of signing a filial duty contract, did not care for his ill mother as promised after receiving a personal estate. The court acknowledged the legality of the document and ruled the son must return the property to his father, as the property was gifted in exchange for his support.
Although "filial duty" has long been considered an important, traditional value in Korea, "the nation's changing family structure" and high costs for housing and education apparently have made it more difficult for elderly Koreans to rely on their children for voluntary care. The survey, of 567 Koreans, showed strong support for greater enforcement of "filial duty contracts."
Under the current law, a donor may rescind a gift contract if the recipient committed an act of crime against the donor, or if “the beneficiary is obliged to support the donor but does not do so.” However, the law also states that rescinding a gift contract does not have any effect once the gift has already been given to the beneficiary.
For more details, including a report on a pending bill that would give "Korean parents the right to sue their children in case of mistreatment and to ask them to return any gifts," read "77% of South Koreans See Need for 'Filial Duty Contracts.'"