Thursday, February 4, 2016

New Brochure-Caregiver Advocates

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.

 

February 4, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0)

Webinar: Addressing Financial Abuse of Low-Income Elders

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!  

February 4, 2016 in Consumer Information, Crimes, Elder Abuse/Guardianship/Conservatorship, Webinars | Permalink | Comments (0)

Thursday, January 28, 2016

If The Issue Is Accountability, Which Is Better? Power of Attorney or Guardianship?

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

Filial Friday: South Korea Recognizes "Filial Duty Contracts"

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.'" 

January 22, 2016 in Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, International, Property Management, Retirement, Statistics | Permalink | Comments (0)

Wednesday, January 20, 2016

Teaching an Elder Law Seminar This Semester?

Are you teaching an elder law this semester?  If so, and your students are interested in sample papers to help them think about approach, scope, organization and how to provide support for their thesis statements, I've found this batch of articles helpful, even though they are now almost 10 years "old."  

The nine short articles by law students (including two former students from my own law school) were published in a student journal following a competition sponsored by the National Academy of Elder Law Attorney (NAELA) and are nicely introduced by my Blogging collaborator, Becky Morgan.  They demonstrate an array of topics and writing styles, and thus are useful to discuss in a writing and research class. I'm sorry that the NAELA competition is no longer available to students, as was a very nice way for students to get further mileage from their classroom research on elder law topics, and helped encourage them to revise and polish drafts!

January 20, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, International, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, January 13, 2016

Revisiting the Saga of Dr. Gerald Klooster

My Blogging colleague Becky Morgan suggested that our faculty readers share hot topics or videos they are using in Elder Law courses.  Along that line, I'm using an excerpt from a Dateline NBC program (archived in part by NBC, although special arrangements appear to be required for copies) from several years ago, that provides a dramatic introduction to a number of age-related legal issues. 

The program tells the story of Dr. Gerald Klooster and his family.  In 1995, friends of the family became concerned when they learned that Dr. Klooster, once a practicing obstetrician in California who was forced to retire early from his practice as the result of a diagnosis of Alzheimer's, had an appointment with his wife to meet with Dr. Kevorkian, of "assisted suicide" fame.  One son, also a physician, became so concerned that he made the decision to whisk away his father to the son's own state of Michigan, for safeguarding.  That triggered a two-state custody battle, initially resulting in inconsistent court rulings.  Eventually, however, Dr. Klooster was returned to California where he resumed living with his wife, Ruth, and regularly saw his other children and grandchildren.  The NBC program shows Gerald swimming and interacting with his family members.

One night, however, emergency personnel were summoned to the Klooster home, when it was learned that Gerald had ingested as many as 60 sleeping pills and alcohol in the middle of the night. Ruth is the one who called the emergency personnel, but then also reportedly directed them not to provide certain life-saving treatments.  She was relying on her husband's pre-dementia living will.

Gerald Klooster did survive, and the NBC program provides fascinating interviews with family members, and shows the couple sitting hand-in-hand.  Did he knowingly attempt to take his own life? Did he do so because he was a physician and, as his wife put it, "didn't want to live the disease through?"  Or did Alzheimer's prevent him from having the capacity to make any such decision?  The saga was also detailed in a New York Times article, linked here.

Lots of food for discussion with this story.  It introduces the limitations of advance directives or living wills; it encourages discussion about Alzheimer's as a "real" phenomenon; it provides a stage for discussing powers of attorney, guardianships and family caregiver roles, just to name a few topics still "hot" today.  Plus, it offers historical perspective on recent changes in laws, including uniform laws on jurisdiction for protective proceedings for adults, and assisted-suicide laws, including the California law that became effective on January 1 of this year.

The Klooster Saga lasts several years beyond the NBC Dateline story itself, as Dr. Klooster did live with his wife in California for additional  years, before spending his last 18 months in a nursing center. According to this San Francisco news report, he passed away at the age of 72 of natural causes, but, sadly, the break in the relationship between his physician-son and the rest of the family had not healed. 

January 13, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases | Permalink | Comments (0)

Monday, January 11, 2016

Beginning of the Semester

It's time for the new semester!!! Always such an exciting time for all of us.  I wanted to see if anyone is doing anything new or innovative in your classes that you wanted to share.   Are you assigning any movies or books (other than law school books) to your students? One of the books I'm considering suggesting is On Pluto: Inside the Mind of Alzheimer's.  I'm also thinking of an assignment where the students research various technologies that are designed to help an elder age in place or stay safe.  I'm happy to share results with those of you interested.  Let us know your ideas and suggestions!

January 11, 2016 in Books, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Film, Other, Television | Permalink | Comments (1)

WSJ: Self-Protection Tips for Avoiding Financial Exploitation

Illinois Law Professor Richard Kaplan alerted us to an article providing tips useful to consumers of any age on avoiding financial abuse and misuse of personal financial information.  The Wall Street Journal's article is titled "Protect Your Future Self from Financial Abuse." The advice begins:

To start, financial advisers and other experts suggest creating an inventory of assets—including retirement, brokerage and bank accounts, along with other investments.

 

“Whether it’s on your own or with a financial professional, you need to make sure you are aware of all the different financial accounts you have,” says Gerri Walsh, senior vice president of investor education at the Financial Industry Regulatory Authority, or Finra, the brokerage industry’s self-regulator.

 

This way, she says, an investor knows what he or she needs to keep track of and can provide an easy record for a trusted individual to consult should the investor become incapacitated or compromised.

 

Others suggest looking for opportunities to simplify your financial affairs. For instance, consolidate brokerage accounts spread across multiple firms and consider rolling 401(k) accounts from previous employers into your current plan or an individual retirement account.  

 

Identifying a trusted individual who could help with your affairs is the next step....

 

 

January 11, 2016 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Retirement | Permalink | Comments (0)

Thursday, January 7, 2016

More on Opposition to Misuse of Conservatorships & Guardianships

As I reported frequently in 2015, in several jurisdictions around the U.S., family members are organizing to challenge abusive guardianships or conservatorships and to seek better accountability from court systems.  Here are interesting video resources that examine issues, and which may provide useful opportunities for classroom discussion of this emerging movement. 

See: Conservatorship: Legalized Elder Abuse (offering a perspective from California, by the Coalition for Elder and Dependent Adult Rights)

See also: Guardianships Under Fire (a 30 minute Contact 13 special, aired by KTNV on December 28, 2015, from Las Vegas, Nevada).   

January 7, 2016 in Elder Abuse/Guardianship/Conservatorship, Film, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, January 6, 2016

Elder Abuse Laws: Are They Merely Scarecrow or White Hat Laws?

When researching laws that purport to serve the interests of a target population, such as the elderly, I look to see whether there is an effective enforcement mechanism attached to the law.  Without enforcement, the laws may serve merely as "scarecrows" to deter bad guys (who presumably are reading the laws… right?) or, perhaps, as a means by which legislators can proudly wear their "white hats," to show they are the good guys.  One possible example could be Colorado's civil penalties for violation of the state's consumer protection laws where the victim is "elderly."  C.R.S.A. Section 6-1-112 provides that:

"Any person who violates or causes another to violate any provision of this article [on consumer protections], where such violation was committed against an elderly person, shall forfeit and pay to the general fund of the state a civil penalty of not more than ten thousand dollars for each such violation. For purposes of this paragraph (c), a violation of any provision of this article shall constitute a separate violation with respect to each elderly person involved."

In a recent pro se Colorado case, Donna v. Countrywide Mortgage, the federal district court dismissed all counts of the complaint filed by the borrower, including the count alleging a violation of “Colorado elder law,” concluding that such a private claim must fail because only the attorney general and district attorneys are authorized to seek civil penalties under that law.

Of course, there could be other sources of effective, private rights of action for elder abuse in Colorado law. 

January 6, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Thursday, December 31, 2015

Are Financial Institutions Part of the Problem When it Comes to Enabling Financial Exploitation?

The Wall Street Journal has a good article, Officials Seek Clampdown on Elder Fraud, reporting on attempts by federal and state agencies to increase accountability for financial exploitation, especially of older persons, by financial institutions handling the transactions: 

Grappling with growing financial exploitation of the elderly, state officials are pressing for laws that require financial advisers to report suspected “elder fraud” to authorities. But the mandate faces pushback from the financial industry, which says it could result in a massive number of reports that turn out to be false....

 

To help curb the problem, a coalition of state securities regulators in September proposed a model state law that would require financial advisers, including brokers at large investment houses and independent advisers, as well as their supervisors, to report suspected elder financial fraud to both a state securities regulator and an adult protective-services agency.

 

The legislation would mandate prompt reporting by a financial adviser who “reasonably believes that financial exploitation” of an older person “may have occurred, may have been attempted, or is being attempted.” The bill gives brokers and advisers civil immunity from privacy violations for reporting suspected fraud, and allows them to put a temporary hold on suspicious account disbursements. Supporters say advisers and brokers are well-positioned to raise early warnings about exploitation that can leave elderly victims with scant money left for necessities and little time to rebuild savings.

In hearings where I've testified about the potential benefits of so-called "mandatory reporting" by financial institutions, representatives of banks offer a host of explanations for why mandatory reporting isn't necessary.  Sounds like the same arguments I have encountered were repeated for the Wall Street Journal reporters:

Currently, even when financial advisers suspect an aging client is being taken advantage of, many say they are hamstrung by strict rules governing the execution of trades and processing of withdrawals, and worry about violating privacy laws if they report concerns.

 

The current system, “kind of puts advisers and firms in between a sort of legal rock and hard place,” said Steve Kline, director of state government relations for the National Association of Insurance and Financial Advisors, a professional association. The proposed rules aim to provide clarity.

Certainly I understand industry hostility to more regulations.  At the same time, it seems to me that one option would be to offer immunity from tort or contractual liability for "negligent" failure to report suspected financial abuse, for any financial institution that can show it routinely monitors for abuse and that uses a reasonable system for reporting.  A "carrot" rather than a "stick" to encourage reporting. 

Our thanks to University of Illinois Professor Dick Kaplan for sharing this article. 

 

December 31, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, December 29, 2015

Nursing Home Residents-Privacy Violations

An article in the Washington Post shortly before Christmas had me shaking my head at the cluelessness of some employees of nursing homes regarding resident privacy.  Nursing home workers have been posting abusive photos of elderly on social media gave me one of those "you have got to be kidding me moments."  Maybe it's an age-gap thing, but I just can't fathom why it would be appropriate to post intimate photos of individuals with whose care one is entrusted.  The article indicates that this is not a geographically isolated problem:

Nursing home workers across the country are posting embarrassing and dehumanizing photos of elderly residents on social media networks such as Snapchat, violating their privacy, dignity and, sometimes, the law.

ProPublica has identified 35 instances since 2012 in which workers at nursing homes and assisted-living centers have surreptitiously shared photos or videos of residents, some of whom were partially or completely naked. At least 16 cases involved Snapchat, a social media service in which photos appear for a few seconds and then disappear with no lasting record.

The article offers some illustrations of these photos and the remedies available against the perpetrators.  The article also notes that not only are those photos invading resident privacy, they serve as evidence of the violations.

The incidents illustrate the emerging threat that social media poses to patient privacy and, at the same time, its powerful potential for capturing transgressions that previously might have gone unrecorded. Abusive treatment is not new at nursing homes. Workers have been accused of sexually assaulting residents, sedating them with antipsychotic drugs and failing to change urine-soaked bedsheets. But the posting of explicit photos is a new type of mistreatment — one that sometimes leaves its own digital trail.

How often is this violation of resident privacy occurring? The article notes that "ProPublica identified incidents by searching government inspection reports, court cases and media reports. [A district attorney in Massachusetts] said she suspects such incidents are underreported, in part because many of the victims have dementia and do not realize what has happened."  So far HHS' Office of Civil Rights hasn't sanctioned any nursing homes "for violations involving social media or issued any recommendations to health providers on the topic." The article notes that CMS, in the process of revising the regs dealing with nursing homes, plans to deal with the issue when revising the definitions of various types of elder abuse. Even one of the social media sites referenced in the article expressed concern about the actions of  those nursing home employees.

The article summarizes some cases where charges have been filed.  Read the story and assign it to your students. 

 

December 29, 2015 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Other | Permalink | Comments (0)

Monday, December 28, 2015

Bad Behavior by so-called "Professionals"

Sad news about manipulation by attorneys of older clients, and about specific individuals who have been sanctioned recently for their abuse:

  • Florida Supreme Court "permanently disbarred" Cape Coral Florida attorney William Edy for theft from his clients.  Before being charged with second degree grant theft from clients, Edy apparently held himself out as a trustworthy elder law attorney, writing a newspaper column and even commenting on financial abuse of the elderly.
  • New Jersey Supreme Court suspended New Jersey attorney William Torre for one year, while sanctioning his conduct in "borrowing" money from a "vulnerable" 86 year old client, acting in his own self-interest and failing to repay her in a timely and appropriate manner.   

The New Jersey court, writing unanimously, observed:

The Court considers respondent’s conduct against the backdrop of the serious and growing problem of elder abuse. As the population ages, and more people suffer health problems, it is not uncommon for family members to seek the appointment of a guardian to oversee the finances of an incapacitated loved one. Others, like M.D., turn to family or professionals for help and execute powers of attorney in favor of a relative, friend, or trusted lawyer. In those situations, the vast majority of attorneys perform honorably and act in a manner consistent with the highest ethical standards. But regrettably, as more seniors have needed help to manage their affairs, allegations of physical and financial abuse have also increased.

In a News-Press article about the Florida disbarment,  Professor Geoffrey Hazard (Emeritus at Penn Law, Southern California Law and Yale Law) is quoted as noting that places with large numbers of retirees, such as Southern California, Florida and Arizona, have a "greater risk of attorney misbehavior," in part because of isolation from children and friends with whom they can discuss situations. 

Along the same lines of financial misconduct by "professionals," a Texas psychiatrist, Dr. Robert Hadley Gross, was recently sentenced to "nearly six years in prison" for submitting false claims for services to residents at a nursing home, individuals who were shown to be either dead or discharged. 

December 28, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases | Permalink | Comments (0)

Monday, December 21, 2015

If Your Clients are Mostly "Older," Are You Practicing Elder Law?

The November/December 2015 issue of the ABA magazine (Volume 32, Issue 2) GPSOLO, the publication for members of the Solo, Small Firm and General Practice division of the American Bar Association, is devoted to Elder Law. The issue can be found on-line (and viewing does not seem to be restricted to division members!).  The articles are also available on Westlaw.

Articles include:

  • How to Make Money Practicing Elder Law, by Andrea G. Van Leesten, who practices in California and who is the 2015-16 Diversity Director for the Division;
  • Representing Elder Physical Abuse Victims,  by California practitioner Mark Redmond, who has "focused primarily on representation of elders in cases of physical and financial abuse for the last 15 years;" 
  • Advocating for Elders Suffering Financial Abuse and Exploitation, by Nicole Le Hudson, who focuses her San Diego practice on disability and elder law and who is a "member of the court-appointed attorney panel for conservatorships;"
  • The State of Age Discrimination Law: An Update, by Brian McCaffrey, who focuses his New York practice on employment litigation;
  • Estate Planning for Old Age and Incapacity, by Sheila-Marie Finkelstein, who practices estate planning in Irvine, California; 
  • Counseling Clients about Health Care Toward the End of Life, by Sally Balch Hurme (who I just discovered while reading her article recently retired from 23 years of consumer advocacy with AARP -- but who is still clearly very active in elder law, thank goodness!); 
  • How to Fund Long-Term Care Without Medicaid, by Eileen Walsh, from Louisville,  and I have to admit I read her article first - she explores Medicare, insurance, VA benefits and reverse mortgage options); and 
  • What Every Lawyer Needs to Know About Planning for Retirement, by Cynthia Sharp who "works with motivated lawyers seeking to generate additional income."   

Charlie Sabatino brings to bear his 30 years of experience and careful thought to the question of whether having older clients automatically means you are practicing "elder law," in his column "GP Mentor: When Does Serving Older Clients Become Elder Law?"  Hint?  The answer may depend on whether you are working in the best interests of the senior.

In addition, there is a great Resource Guide of recent texts on Elder Law  and the Division Chair's essay on recognizing Elder Abuse. PLUS, there's a detailed shoppers's guide to cameras, mobile phones ans more in the 2015 Tech Gift Guide -- for those of you still searching for gift ideas for your favorite elder law attorney!  

December 21, 2015 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Retirement | Permalink | Comments (0)

Thursday, December 17, 2015

Is a Court-Appointed Guardianship, Using Paid, Private Guardian, "Worse Than Prison"? Latest from Nevada

As we've reported several times over the course of the last year, concerns about cost, misuse of authority, and lack of appropriate oversight of court-appointed guardians for adults in Clark County (Las Vegas), Nevada, have lead to a state-wide inquiry into how better to protect the civil rights of alleged incapacitated persons.  According to news reports recent proceedings before the Nevada Supreme Court Guardianship Commission, one judge described past neglect of the alleged incapacitated individual's rights as being "worse than being sent to prison."

A frequent concern raised by family members has been the cost of court-appointed guardians, particularly for individuals or family members who disagree with either the need for a guardianship or the scope of the guardian's powers over the individual or the individual's assets.  During the most recent proceedings addressing potential solutions, judges and others argued that a solution to some of the abuses was court-appointment of a lawyer at the outset of any guardianship proceeding to represent the interests of the individual.  Thus, there is some irony, that an additional layer of potential costs -- the cost of the appointed counsel -- would be argued as part of the solution.  On the other hand, limiting the amount of money such an attorney can charge (whether paid from the individual's estate or from public funds), can have the practical effect of what might be described as "de minimus" representation. 

The Nevada proceedings have attracted considerable attention from media nationally -- and from family advocates challenging court-supervised guardianships in other states and who are sharing information about problems and potential solutions. My thanks to Rick Black for sharing news from Nevada.

December 17, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink | Comments (4)

Monday, December 14, 2015

When a Caring Family Tradition Comes Full Circle...

I have often been struck by how frequently attorneys I know began working in elder law after their personal struggles to find resources to help an aging member of their own family.  A slightly different family-inspired path is behind the story of attorney Joy Solomon.  She at first resisted.

In the midst of my raging adolescence in 1979, my mother was devoting most of her time to a Jewish nursing home in Baltimore where she was the board president.

 

I would come home after school, make instant mashed potatoes, settle into the comfort of our gray velour sofa and watch “General Hospital,” enraptured. Family dinner often included stories about Mom’s afternoon with the old people. In her mind, the elderly were to be revered as the bearers of history, lives lived and lessons learned; in my self-centered, adolescent thinking, old people were fragile, needy and dying. I felt more connected to soap stars like Luke and Laura than to aged Jewish grandmothers. I told myself that I’d never end up working in a nursing home like her. No way....

To continue reading how Joy found her mission and is now a part of the team at the Harry and Jeanette Weinberg Center for Elder Abuse Prevention at the Hebrew Home in Riverdale, the Bronx, read Coming Full Circle to Help Her Elders, from the New York Times. 

Special thanks to Karen Miller, a former administrative law judge from New York, for sharing this story.

December 14, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Legal Practice/Practice Management | Permalink

Sunday, December 13, 2015

More on Elder Abuse

I don't know whether the issue of elder abuse is just getting more coverage or whether cases of elder abuse are increasing. We all know that elder abuse is a global issue.  I ran across a few recent articles about elder abuse that I wanted to share in this post.

First, The Conversation published Why are we abusing our parents? The ugly facts of family violence and ageism . The article opens with the story of Gwen, who was being abused by her son. The article suggests that "[o]lder people experiencing abuse from family members share the same experience as women suffering intimate partner violence in having someone close to them, whom they ought to be able to trust, perniciously erode their sense of safety and wellbeing through excessive use of power and control." But, when its a child who is the perpetrator, "feelings of parental love and responsibility coupled with shame and guilt for having “failed” as a parent often stop the parent from seeking help and protecting themselves." Turning to Australia, the article examines the prevalence and frequency of multiple abuses of a victim. "For example, financial abuse was coupled with another form of abuse in 65% of cases." Linking abuse and ageism, the article offers that "[promoting the dignity and inherent value of older people is a crucial component of elder abuse prevention."  The article calls for educating professionals, elders and society about the issues.

Next, a newspaper in Bend, Oregon ran the story, Financial exploitation hits close. Report: Most financial exploitation done by someone the victim trusts. "A report by Oregon’s Office of Adult Abuse Prevention and Investigations found nearly three-fourths of Central Oregon’s financial-exploitation cases involved someone known or trusted by the victim." The cases in Oregon are similar to what is happening across the country:"[s]tate investigators recorded 1,059 cases in which people 65 or older, who lived on their own or with a loved a one, were victims of theft or someone had misused their money, medication or property...Financial exploitation for seniors living outside of a long-term care facility was the most common type of elder abuse for the third year running in 2014."

Finally (but finally only for this post; I have no doubt that there will be more posts on elder abuse, unfortunately) CNBC ran a story on elder abuse with a headline that caused me to do a double-take.  Why seniors don't fear elder financial abuse discusses a new report from Allianz Life that "queried over 1,200 seniors and more than 1,000 people ages 40 to 64 about seniors' finances and found that among the seniors, 89 percent were confident they could handle their money on their own. At the same time, 22 percent of the younger group said they were not confident in their own ability to recognize elder financial abuse, or were not sure."

The CNBC story indicates that family members worry more about the elder being a victim than the elder does. "The confidence of the seniors may make them even more vulnerable to financial scams or financial abuse by friends or family members, said Walter White, president and CEO of Allianz Life. ..."Everything we understand about the prevalence of the issue would suggest that confidence is misplaced," he said."  The CNBC story cites some other reports that provide good statistics and discusses the connection between financial exploitation and ultimately a nursing home placement.

That kind of loss can devastate a person's finances, and elder financial abuse is often a major reason why seniors wind up in nursing homes and assisted living facilities on public assistance. Dr. Mark Lachs, co-chief of the division of geriatrics and gerontology at Weill Medical College, has studied the issue and found that an older person who falls victim to abuse, including financial exploitation, is four times more likely to be placed in a nursing home, after adjusting for other known risk factors for nursing home placement.

Discussing the reasons a victim may fail to report financial exploitation, the story adds overconfidence as a reason, citing to the Allianz report. The CNBC story concludes with some links to resources to help fight elder abuse.

More information about the Allianz report is available here.  Allianz also offers a number of materials for elders and professionals available on the Allianz website, here.

 

 

December 13, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, Retirement, Statistics | Permalink | Comments (0)

Thursday, December 10, 2015

Tis the Season....for Financial Exploitation

Regular readers of this blog know we frequently provide posts on elder abuse. Financial exploitation is not a new problem, but it sure seems to be a growing one. At the end of November, the New York Times ran a story on financial exploitation.  Financial Abuse of the Elderly: Sometimes Unnoticed, Always Predatory featured several stories of victims of financial abuse. The article notes that often victims of financial exploitation may also be victims of other types of elder abuse (poly-victimization). According to the article, "[t]o help elders in financial and other distress, more municipalities, using federal funds, are training law enforcement officers, prosecutors, and social workers how to spot the sometimes subtle signals that may indicate someone has been swindled."  The article illustrates the devastating consequences of financial exploitation.  The stories are compelling and sad.

December 10, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0)

ALI-CLE: Hot Topics in Estate, Trust & Conservatorship Litigation

While researching potential fact patterns to use in my Wills, Trusts and Estate exam (which the students have now taken, although I remain in the Valley of Doom, for those grading essay exams), I came across a recent American Law Institute-CLE course with a very useful outline of "hot" topics in estate, trust and conservator litigation, prepared by Los Angeles attorneys Terrence Franklin and Robert Sacks.  Also available on Westlaw as SW037 ALI-CLE 923, from June 2015, their list of hot topics includes:

  • Legal Standards for Lack of Mental Capacity: contrasting the standards used for assessment of capacity to make wills and revocable trusts, versus more immediate lifetime gifts, and pointing to the Commentary to Uniform Trust Code Section 601 that observes that "Given [the] primary use of the revocable trust as a device for disposing of property at death, the capacity standard for will rather than that for lifetime gifts should apply."
  • Legal Standards regarding Undue Influence: noting that "will and trust contests rarely rely on either a lack of capacity or undue influence claim alone. Usually, these claims are filed together, on the theory that even if the testator had the minimum level of capacity necessary to execute a valid will, her capacity was so diminished that she was more susceptible to the undue influence alleged. And California cases for decades have shown the tough burden a contestant has in contests on grounds of lack of capacity and undue influence."
  • Pre-Death Contests:  discussing standards used for decision-making by appointed guardians or conservators, including "substituted judgment," as well as states that have adopted statutory procedures that "expressly allow for pre-death determination of the validity of a will or trust," including Arkansas, Alaska, North Dakota and Ohio.  See e.g., Ohio Rev. Code Ann. Section 2107.081 to 085.
  • Intentional Interference with Expected Inheritance: summarizing the influential 2012 case of Beckwith v. Dahl, recognizing the tort of IIEI in California.    

In the outline linked above, the authors also addressed practical estate planning topics, such as the importance of asking "why" when crafting dispositive provisions in estate documents,  whether to videotape execution of testamentary documents, and whether to use "no contest" clauses.

December 10, 2015 in Cognitive Impairment, Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, December 9, 2015

An Interesting Case of "Mandatory" Bank Reporting of Suspected Elder Abuse

Here's a summary of interesting, key findings from the complicated case of Moylan v. Citizens Sec. Bank, an "elder abuse" and wrongful termination claim with a long litigation history in Guam: 

  • Bank Comptroller Moylan realizes his grandparents have certificate of deposit accounts in his bank, with assets totaling more than $1 million.
  • He notes that when the accounts rollover, they are no longer in the names of his grandparents, but rather solely in the names of  two individuals identified as "caretakers" for the grandparents.  
  • Moylan proceeds to "investigate further" and concludes that multiple transactions on the accounts were suspicious, given his "personal knowledge of his Grandparents' advanced age and deteriorating mental condition."
  • Moylan discusses his findings with his brother, an attorney, thus revealing bank account information without getting the permission of his Grandparents or the "caretakers" who were listed on the accounts.
  • The brother advises that the findings may constitute "elder abuse" and thus trigger a mandatory duty to report the activity to Adult Protective Services.
  • Moylan, fearing he may lose his bank job, encourages his father to make the report -- thus again sharing banking information without the consent of the listed account holders, the Grandparents and their caretakers.

Eventually, a guardians is appointed for the grandparents, the bank becomes a subject of the guardian's complaint about handling of the grandparents' accounts, the caretakers (one of whom is a family member) object to Moylan's "misuse" of his access to account information as a bank employee -- and, lo and behold, Moylan is fired in 2007.  Moylan challenged his termination as wrongful.

In 2015, after more than 7 years of litigation in the courts below, the Supreme Court of Guam overturned summary judgment in favor of the bank on Moylan's wrongful termination claim.  That's the good news for Moylan, as the Court recognizes a public policy exception to the "at will" nature of his employment contract:

Because the object and policy of the [Adult Protective Services Act] is to protect the elderly and disabled adults, the reporting requirements of 10 GCA §21003(a) should be construed liberally in favor of promoting the reporting of suspected abuse. This approach is consistent with the fact that the legislature chose to include the term “immediately” instead of a specified reporting deadline. Therefore, we hold that in the limited context of the facts of this case, Scott's oral reporting within seven days after the discovery of alleged abuse qualifies as sufficiently immediate....

 

Termination motivated by Scott's mandatory reporting would jeopardize the public policy to protect elderly and disabled adults from abuse because it would discourage future reporting. Scott presented evidence that at least one Bank executive knew that Scott had caused a report to APS before Scott was terminated.

Under Guam law, mandatory reporting of suspected elder abuse applies to "banking and financial institution personnel." 10 GCA §21003(b).

The bad news is the reversal sends the case back to the trial court for "further proceedings."  The full opinion by the Supreme Court of Guam, issued November 20, 2015, linked above, is well worth reading, as it demonstrates both weaknesses and strengths of statutory attempts to mandate that banks report suspected elder abuse.

December 9, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International, Property Management, State Statutes/Regulations | Permalink | Comments (1)