Wednesday, May 16, 2018
Last Sunday, CBS' 60 Minutes ran an extended feature story on the role of grandparents as primary caregivers for grandchildren, often because of untrustworthy parents with opioid or other addiction problems. The story reported that "stoked by the opioid crisis, 21,000 children -- just in Utah -- live with their grandparents."
The feature also suggested some of the financial consequences for the extended family, as grandparents were exhausting their own retirement savings in order to provide for the younger children. Nonprofit programs, such as Grandfamilies, sometimes are able to provide informal support for the grandparents.
Along the same lines, Pennsylvania's Governor Wolf signed new laws, Senate Bill 844 (Printer's No. 1531), which became Act No. 21, on May 4, 2018. The law recognizes expanded standing for grandparents to seek physical or legal custody for grandchildren, if they can show "clear and convincing evidence" of all of the following:
(I) The individual has assumed or is willing to assume responsibility for the child.
(II) The individual has a sustained, substantial and sincere interest in the welfare of the child.
In determining whether the individual meets the requirements of this subparagh, the court may consider, among other factors, the nature, quality, extent and length of the involvement by the individual in the child's life.
(III) Neither parent has any form of care or control of the child.
Pennsylvania estimates that there are 82,000 grandparents acting as sole caregivers for roughly 89,000 grandchildren. Other related bills still pending in Pennsylvania include support for creation of a "Kinship Caregiver Navigation Program," and a means to appoint a temporary guardian when a parent enters drug or alcohol treatment.
Additional history on the shifts in thinking on grandparent rights can be important. For example see this Pennsylvania law firm's blog post from 2013 on amendments that removed "automatic" standing for grandparents to seek custody.
The Pennsylvania Bar Institute, responding swiftly to the latest changes, is offering a Webinar tomorrow (May 17, 2018) on the new laws.
Yesterday, May 15, 2018, was designated by the U.S. Senate as "National Senior Fraud Awareness Day." The reason for the day, according to the Congressional Record is "To Raise Awareness About the Increasing Number of Fraudulent Schemes Targeted At Older People of The United States, To Encourage The Implementation of Policies to Prevent These Scams From Happening, and to Improve Protections From These Scams For Seniors."
Senator Collins for herself and 4 other Senators, and introduced the resolution, S. Res. 506.
Here it is in its entirety:
Whereas, in 2017, there were more than 47,800,000 individuals age 65 or older in the United States (referred to in this preamble as ``seniors''), and seniors accounted for 14.9 percent of the total population of the United States;
Whereas senior fraud is a growing concern as millions of older people of the United States are targeted by scams each year, including the Internal Revenue Service impersonation scams, sweepstakes and lottery scams, grandparent scams, computer tech support scams, romance scams, work-at-home scams, charity scams, home improvement scams, fraudulent investment schemes, and identity theft; Whereas other types of fraud perpetrated against seniors include health care fraud, health insurance fraud, counterfeit prescription drug fraud, funeral and cemetery fraud, ``anti-aging'' product fraud, telemarketing fraud, and internet fraud;
Whereas the Government Accountability Office has estimated that seniors lose a staggering $2,900,000,000 each year to an ever-growing array of financial exploitation schemes and scams;
Whereas, since 2013, the fraud hotline of the Special Committee on Aging of the Senate has received more than 7,200 complaints reporting possible scams from individuals in all 50 States, the District of Columbia, and the Commonwealth of Puerto Rico;
Whereas the ease with which criminals contact seniors through the internet and telephone increases as more creative schemes emerge;
Whereas, according to the Consumer Sentinel Network Data Book 2017, released by the Federal Trade Commission, people age 60 years and older were defrauded of $249,000,000 in 2017, with the median loss to defrauded victims age 80 and older averaging $1,092 per person, more than double the average amount lost by those victims between the ages 50 and 59 years old;
Whereas senior fraud is underreported by victims due to embarrassment and lack of information about where to report fraud; and
Whereas May 15, 2018, is an appropriate day to establish as ``National Senior Fraud Awareness Day'': Now, therefore, be it
Resolved, That the Senate--
(1) supports the designation of May 15, 2018, as ``National Senior Fraud Awareness Day'';
(2) recognizes ``National Senior Fraud Awareness Day'' as an opportunity to raise awareness about the barrage of scams that individuals age 65 or older in the United States (referred to in this resolving clause as ``seniors'') face in person, by mail, on the phone, and online;
(3) recognizes that law enforcement, consumer protection groups, area agencies on aging, and financial institutions all play vital roles in preventing scams targeting seniors and educating seniors about those scams;
(4) encourages implementation of policies to prevent these scams and to improve measures to protect seniors from scams targeting seniors; and
(5) honors the commitment and dedication of the individuals and organizations who work tirelessly to fight against scams targeting seniors.
May 16, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Other, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, May 15, 2018
Pennsylvania has several interesting bills pending that would make significant changes to the laws governing court-appointed guardians for incapacitated adults, and at least one of these could move forward this legislative session. I've learned to expect late night action from the Pennsylvania legislature once it reconvenes in late May and before it adjourns in late June or early July. The pending legislation includes:
- Senate Bill 884 (Printer's No. 1147), with Senator Greenleaf as the lead sponsor, offered as a comprehensive reform package for adult guardianship laws, relying in large part on model legislation, and drafted before the most recent high profile news stories and editorials that involve allegations of improper appointment of a particular fee-paid guardian in a number of guardianships for incapacitated adults on the eastern side of the Commonwealth. On April 16, 2018 this bill was referred to the Senate Appropriations Committee.
I've seen recent drafts of proposed amendments to SB 884 that would require alleged incapacitated persons to be represented by a lawyer during the guardianship proceeding, require criminal background checks through the State Police (without creating automatic disqualifications if there is a history of convictions), and would also mandate "certification" for "professional guardians." Professional guardians are defined to include individuals or entities that are appointed to serve 3 or more incapacitated persons. The responsibility for certification of the professional guardians would be assigned to the Pennsylvania Department of Human Services, although the proposed language would appear to permit the department to accept certification through an outside program such as that offered by the Center for Guardianship Certifications.
- House Bill 2247 (Printer's No. 3296), with Representative Gillen as the lead sponsor, and submitted in April 2018 following the high profile articles, would mandate criminal background checks for all current or prospective guardians and provides that courts "shall disqualify a guardian or prospective guardian convicted of an offense classified as a felony under the laws of this Commonwealth or a substantially similar offense under the laws of another jurisdiction."
While the proposed amendment to S.B. 884 would require criminal background checks for potential guardians, unlike HB 2247, it stops short of banning appointment of individuals who have any particular criminal history. No doubt this decision reflects a 2003 ruling by the Pennsylvania Supreme Court in Nixon v. Commonwealth. In that case, a per se ban on employment of individuals as long-term care workers if they were convicted of certain crimes was deemed unconstitutional. Senate Bill 884, even if amended, would give greater discretion to the courts to consider the individual history and the nature of the offense than would HB 2247.
May 15, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Sunday, May 13, 2018
News publication sites affiliated with USA Today and the Associated Press have been running a recent piece on "bullying" among older persons, often with a provocative headline such as "It's like 'Mean Girls,' but everyone is 80": How nursing homes deal with bullies. The title undoubtedly catches many a reader's eye, simply because of the heightened discussions of bullying at a national level, including Melania Trump's recent announcement of her Be Best platform for younger persons. The topic isn't actually all that new from a journalism perspective. Paula Span wrote on "Mean Girls in Assisted Living" for the New York Times in 2011, and the same publication carried a granddaughter's Op Ed on "Mean Girls in the Retirement Home" in 2015.
On a parallel track, and perhaps more disturbing, are reports of bullying among nurses, a profession normally associated with empathy and caring. See e.g., "When 'Mean Girls' Wear Scrubs," a 2013 post on DiversityNursing Blog, tracking a several studies and a book.
More important than the clever headlines, however, are the reports of affirmative efforts to counter the bullying, which at the older end of the spectrum of life, seems to focus on name-calling, gossip, and ostracising behavior, rather than physical intimidation. From the most recent USA Today writer's article:
After the cafeteria exiles and karaoke brouhahas, the 30th Street [Senior] Center [in San Francisco] teamed up with a local nonprofit, the Institute on Aging, to develop an anti-bullying program. All staff members received 18 hours of training that included lessons on what constitutes bullying, causes of the problem and how to manage such conflicts. Seniors were then invited to similar classes, held in English and Spanish, teaching them to alert staff or intervene themselves if they witness bullying. Signs and even place mats around the center now declare it a “Bully Free Zone.”. . .
Robin Bonifas, a social work professor at Arizona State University and author of the book “Bullying Among Older Adults: How to Recognize and Address an Unseen Epidemic,” said existing studies suggest about 1 in 5 seniors encounters bullying. She sees it as an outgrowth of frustrations characteristic in communal settings, as well a reflection of issues unique to getting older. Many elderly see their independence and sense of control disappear and, for some, becoming a bully can feel like regaining some of that lost power.
I think that last line rings true. I've certainly seen older adults sudden strike a "meaner" demeanor as their freedom is limited by physical health issues and as their frustrations increase. But I also think it can be important to assess whether a "mean" trait -- or at least a "meaner" dynamic -- is a reflection of cognitive impairment, such as disinhibition associated with certain types of neurocognitive impairments.
On an even more worrisome level, is there a danger of misinterpreting fear or irritation as "meanness," perhaps arising from compelled interactions in a congregated living situation? In one instance, I've seen an older woman who had regularly chose to sit with the same group of 3 other individuals at meals for several weeks, suddenly reject one member of their informal club. It took careful listening to realize the rejection was actually uneasiness bordering on fear -- on some level not completely rational -- but associated with that targeted individual's tendency to wander at night into others' rooms and thus to lead the "mean girl" to try to keep the other away from her around the clock. Targeting the "bullying" behavior could be addressing the wrong problem in the latter case.
Finally, I think there is a danger associated with the admittedly clever tendency to use the "Mean Girls" movie as the analogy for older bullying, thus implying this is only an issue (and problem) associated with women, not men. As a later paragraph in the most recent article makes clear, bullying behavior among older adults is not "just" about women. But perhaps that is obvious from the larger national news?
May 13, 2018 in Books, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Retirement | Permalink | Comments (0)
Wednesday, May 9, 2018
Check out this new issue brief from the National Adult Protective Services Association (NAPSA) Research to Practice Series. Fraud versus financial abuse and the influence of social relationship, offers this summary
Elder financial exploitation, committed by individuals in positions of trust, and elder fraud, committed by predatory strangers, are two forms of financial victimization that target vulnerable older adults. The study presented in the webinar analyzes differences between fraud and financial exploitation APS victims in terms of their health, functional dependency, cognitive functioning, and social relationships.
In this mixed methods study, fifty-three financial exploitation and fraud cases were sampled from an elder abuse forensic center in California. Data include law enforcement and caseworker investigation reports, victim medical records, perpetrator demographic information, and forensic assessments of victim health and cognitive functioning.
The vast majority of fraud and financial exploitation victims performed poorly on tests of cognitive functioning and financial decision-making administered by a forensic neuropsychologist following the allegations. Based on retrospective record review, there were few significant differences in physical health and cognitive functioning at the time victims' assets were taken, although their social contexts were different. Fraud most often occurred when a vulnerable elder was solicited by a financial predator
in the absence of capable guardians. In other words, most fraud victims in the sample did not have trusted friends or family members assisting with financial decisions and providing care at the time the fraud perpetrators entered the picture. Fraud victims were significantly less likely to have children and also had fewer relatives nearby. In sum, fraud and financial exploitation victims had different family and friend structures that may create different opportunity structures for crime.
Social isolation was not only a potential risk factor for financial victimization, it was also a tactic of undue influence to further manipulate and control the victims. Some fraud victims in the sample developed close friendships and romantic relationships with the financial perpetrators, even in the cases where they communicated only by telephone. While these relationships were constructed to manipulate and deceive the victim, they felt authentic to the older person. Perpetrators often exploited the victim's need for companionship and began limiting and controlling their victims' social interactions to create a sense of powerlessness and emotional dependency.
Sunday, May 6, 2018
As is true for many states, Maryland is increasing the education, support and supervision for guardians appointed by the Maryland courts. In connection with this, beginning on January 1, 2018, prospective guardians must watch a video-based "orientation program" before they are appointed guardian of a minor or disabled person. The 9-minute video introduces the "roles, duties and responsibilities" of a guardian and explains mch of what to expect if appointed by the Maryland Courts. Here is a link to the video.
What I particularly like about this video is the message "You Are Not Alone as a Guardian," and the emphasis that Court-appointed guardians are subject to the ultimate authority of the Court. I think that many courts are still struggling with their own roles in this regard, but here the lines of responsibility are explained clearly.
The balance here is delicate, requiring careful thought about how to provide threshold information essential for a candidate to make an informed decision about whether to serve, but without making the information so overwhelming that good candidates decline the role. The Maryland courts caution that this particular orientation and the related training requirements do NOT apply to public guardians or guardianships that terminate parental rights.
In my opinion, this type of video is a good first step. But just a first step.
May 6, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0)
Thursday, May 3, 2018
Hard to believe, but this summer will mark the 21st annual Elder Law Institute in Pennsylvania. It functions as both a gathering of the clan and an educational update, and I always walk away with new ideas for my own research and writing. On the second day of the event (which runs July 19 and 20), Howard Gleckman will give the keynote address on "Long Term Care in an Age of Disruption." Doesn't that title capture the mood of the country?!
Practical workshops include:
- Using Irrevocable Trusts in Pre-Crisis and Crisis Planning - Ms. Alvear & Ms. Sikov Gross
- Guardianship for Someone Who Is 30/30 on the MMSE (Advanced Mental Health Capacity Issues) - Ms. Hee & Mr. Pfeffer
- Medicaid across State Lines: Pennsylvania vs. New Jersey - Mr. Adler
- Medicaid Annuities in Practice - Mr. Morgan & Mr. Parker
- Business Succession Planning for Elder Law Practices - Ms. Ellis, Mr. Marshall, Mr. Pappas & Ms. Wolfe
- Social Security Disability: What Elder Law Practitioners Need to Know - Mr. Whitelaw
- Drafting Trusts for Beneficiaries with Behavioral Impairments and Mental Health Problems - Mr. Hagan & Dr. Panzer
- Being a Road Warrior Attorney: Staying Organized and in Touch While Out of the Office (ETHICS) - Ms. Ellis
Mark your calendars and join us (Linda Anderson, Kimber Latsha and I are hosting a session on Day 1 about "new" CCRC issues). Registration is here.
May 3, 2018 in Books, Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, May 2, 2018
I'm often hesitant to post photos or videos from allegations about nursing home neglect. As an outsider, it can be hard to know the full facts. However, I think that one story about litigation that follows the 2015 death of a 95 year-old woman (reportedly a resident in a Georgia nursing home for some 4 years) from alleged complications associated with scabies, raises important questions from several perspectives. The questions include the roles of companies and individuals, including family members and caregivers, and about the state in its regulatory role.
Scabies, by the way, is a parasitic infection. Some of the news articles include copies of court pleadings. The facility denies all allegations of fault. Here is a television news clip that presents several key questions. Plus a word of caution, as the clip includes graphic details:
May 2, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, April 26, 2018
In Continuing Care or Life Plan Communities, Do Operators Face Liability for "Failing" to Transfer Residents to Higher Levels of Care?
Just as spring is finally seeming to arrive in the Mid-Atlantic region and I'm catching up on non-classroom projects, I realized I hadn't fully understood the potential legal issues in a tragic fact pattern from last winter, when an 85 year old women died after being trapped overnight outside her home near Philadelphia in March. The legal issues are outlined in a suit filed against the CCRC where she was living in an "independent living" unit. The lawsuit claims her "caregivers should have known" that she needed more care, pointing to the contractual language that permitted the facility to assess and transfer her to a more supervised setting as her care needs increased. From the Philadelphia Inquirer on February 9, 2018 :
Her son, Blake Rowe, a drug company scientist, has filed suit against Shannondell at Valley Forge in Audubon and its security company, Universal Protection Service LLC, claiming that they should have done more to protect his mother. She had been allowed to stay in an independent-living apartment after Shannondell knew she had a tendency to become confused and wander aimlessly, the suit says.
“I put my trust in them. They said they would do an assessment they never did,” said Rowe, who got the “horrible” news that his mother was in the hospital as his plane landed in Florida for his honeymoon. As for the security company, he said, “If they were doing their rounds, someone would not be at a door for five hours freezing to death.”
Ironically, I often hear from family members protesting the compelled transition of a resident to a higher level of care, as the family members may disagree more help is needed, or feel the help can be provided adequately "in" the independent living unit. The Inquirer article summarizes the dilemma for operators and families:
The Hinds case also illustrates a trend in senior housing — at all levels of care, including independent living, residents are older and have more health problems than in the past — with safety implications that may surprise families. Most seniors want to be as independent as they can for as long as they can. Families shopping for senior apartments may want to look beyond the quality of the food or beauty of the grounds and ask what will happen when a loved one declines: Were your buildings and security designed with dementia in mind? Whose job is it — the family’s or the facility’s — to start the conversation when a resident needs more help?
For more on the "Hinds" case, see His Elderly Mother Wandered Out Into the Cold and Died. Whose Fault Was It?
April 26, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, April 19, 2018
Yesterday, the Senate Special Committee on Aging held a hearing on guardians exploiting individuals under guardianship. The hearing, "Abuse of Power: Exploitation of Older Americans by Guardians and Others They Trust.” offered 4 witnesses, including elder law prof, and reporter of the new Uniform Guardianship, Conservatorship & Other Protective Arrangements Act, Associate Dean Nina Kohn. The committee chair and ranking member opened the hearing with their individual statements. Their statements, along with the witnesses' testimonies, are downloadable as pdfs. There is also a video of the hearing, available here.
April 19, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink
Tuesday, April 17, 2018
TThe Pennsylvania House Committee on Aging and Older Adult Services invited representatives of legal aid organizations to speak on April 11, 2018. As I listened to attorneys from SeniorLAW Center, Community Legal Services of Philadelphia, MidPenn Legal Services and the Deputy Chief Counsel and Legal Assistance Developer for Pennsylvania's Department of Aging, it occurred to me that many of the client histories, including my own school's clinic story, were about positive outcomes in representing individuals facing potentially tragic futures, including eviction from the only housing they know, rejection for Medical Assistance, or no option but to rely on the unkindness of strangers.
We were speaking, understandably, about the good that trained lawyers and lawyers-in-training (students in law school clinical programs) can do. For example, Pam Walz, director of the Aging and Disabilities Unit at Community Legal Services (CLS) in Philadelphia told the story of a recent client, "Mr. D," who at age 70 was living alone in a single room in a rooming house. He was found unconscious, leading to hospitalization:
He had suffered a stroke and at the hospital he was also diagnosed with throat cancer. A treatment plan was created, including radiation therapy, and he had to have a feeding tube placed. The hospital discharged him to a nursing facility because they did not think he could care for himself alone in a rooming house. . . .
Mr. D received rehabilitation for about two weeks at the nursing facility but the facility failed to coordinate with his oncologist or to provide him with transportation for his first radiation treatment. Worse yet, the nursing facility told Mr. D that they were discharging him because his Medicare coverage had ended, despite the fact that he continued to need nursing facility care and is eligible to have his continued stay paid by Medicaid [under federal and state law]. . . . The nursing facility had also failed to provide a legally required written notice of discharge, explaining Mr. D's rights to appeal the discharge to the Department of Human Services. . . . [S]ending Mr. D back to his rooming house in his condition would not be a safe discharge.
CLS attorneys stepped in and filed the appropriate papers to get the discharge stopped until the legally mandated "safe" discharge plan could be determined. They recognized that Mr. D was further in jeopardy because he needed assistance in Spanish, a requirement safeguarded by Title VI of the federal Civil Rights Act.
CLS attorneys will continue to represent him. The message in common for the speakers is about the better outcomes possible when trained experts step in. On the one hand it is a success story and a success story heard across the nation at the hands of both legal aid attorneys and private attorneys who are skilled in the array of state and federal laws intended to protect older adults and provide greater dignity in circumstances of need, including ill health or extreme risk.
I realized that with our testimony, including my testimony about students at Penn State's Dickinson Law's Community Law Center, who were able to prevent the wrongful eviction of an older man, we were painting a picture of a glass half full. But a half-full glass is also half-empty. As I testified, the histories also made me a bit sad, because I know how many calls for help go unanswered, because there aren't enough free or low cost services for those in need.
As one woman explained to me in seeking a lawyer, "I had a plan. I planned to work until I was 70 and I made it. I planned my savings to last until I was 80 and I made it. Unfortunately, now I'm 85 and my savings weren't enough, Social Security isn't enough, and I don't know what to do. . . . I think I need help with my creditors, but I can't pay an attorney to help me."
I testified that law schools with clinical programs and legal aid organizations are willing to do more to represent the underrepresented, but to do so each such organization needs ines of funding dedicated to older adult legal services. In more rural communities, the need may be especially serious. It's not that the glass is half full or half empty, it's that the glass is probably just 20% full, as so many go without sound legal advice until desperation sets in, and even then only a small number get help in time.
In the photo here, after testifying before the House committee, we're smiling because key members were listening and asking important questions.
The tall man in the center, Chairman Tim Hennessey, has long served in a leadership role for senior services in Pennsylvania. Around him, from left to right, me, Deborah Hargett-Robinson (Pa Department of Aging), Wendy Bookler (SeniorLAW Center), Karen Buck (Exec. Dir. SeniorLAW Center), Pam Walz (CLS) and Marisa Halm (Dickinson Law 1L student who will intern with SeniorLAW in summer 2018).
I'm often bouyed by the commitment of so many students to public interest law. Students who plan on private practice also, increasingly, recognize commitments to public service with their own pro-bono pledges. Private attorneys who make a commitment of a percentage of their time to pro-bono services are part of the solution.
Justice Sonia Sotomayor, before she made it to the bench of the highest court in the U.S., reminded lawyers of our duty to "represent the underrepresented in our society" and to "ensure that justice exists for all, both legal and economic justice." A reminder in these challenging times of our ability and obligation to do good.
For more, here's a link to my written testimony.
My special thanks to Karen Buck for her leadership role on the future of legal services in Pennsylvania. Here is the link to SeniorLAW Executive Director Buck's testimony; Karen opened the hearing.
April 17, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (1)
Wednesday, April 11, 2018
Mark Your Calendars: Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation
Mark your calendars for April 18, 2018 at 2 p.m. edt for a free webinar from the National Center on Law & Elder Rights, Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation. Here is the description that I received in the email announcing the webinar:
In 2016, Medicare began reimbursing physicians for counseling beneficiaries about advance-care planning. At around the same time, Health Affairs released a study finding that only one-third of older adults have completed any health care planning documents. For attorneys counseling older adults, completing advance planning documents is just one part of care planning. Drafting these documents in a way that reduces the risk of abuse and exploitation is a critical component of providing good counsel.
This webcast will discuss ways to work with clients to select lower-risk agents, tools to document and communicate health care values, and tips for drafting documents to reduce the risk of exploitation.
To register, click here.
April 11, 2018 in Advance Directives/End-of-Life, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, April 8, 2018
During Dickinson Law's recent program on Dementia Diagnosis and the Law, one of our panelists, Elder Law practitioner Sally Schoffstall raised an issue planning professionals are seeing more often, families who are concerned about the long-range needs of children with developmental disabilities. I know that over the years I have often had law students whose interest in disability and estate planning law began with a brother or sister with special needs, and they are thinking about their own future roles in helping the family plan.
The good news is that better early health care often means an extended life for disabled children, but that very fact raises the probabilities on living longer than the people who have been primary caregivers, especially their parents. As we heard from medical professionals at our conference, individuals with Down Syndrome, for example, are now less likely to succumb to physical impairments such as developmental heart problems, but still face a significant risk of early onset of dementias, with an estimated 30 percent of those in their 50s already experiencing symptoms similar to Alzheimer's Disease.
On May 21-22, a St. Louis-based nonprofit organization, Association on Aging with Developmental Disabilities (AADD) will hold its 28th annual conference. The conference draws an audience of professionals from a wide range, including social workers, nurses and other service providers. As with most people, individuals with disabilities want to "age in place," and that takes extra planning to manage financial assets. Pamela Merkle, executive director for AADD explains:
"Sessions will focus on giving them the tools they need to successfully support people with developmental disabilities who are aging,” says Merkle.
She explains that many of the issues faced by older persons with developmental disabilities mirror those of aging individuals in general, such as isolation, depression and how to handle retirement. “Like most people, they want to ‘age in place,’ not spend their golden years in a nursing home. Given that living within the community is more cost-effective, it’s important to both the seniors and our communities that there be more public programs to support that choice,” she continues. . . .
For individuals who are 50 or older, AADD offers retirement services. While some of the participants have held community-based jobs, others spent decades in sheltered workshops. As with many members of the general population, they often tend to define themselves through the jobs they held for so many years. “So we focus on identity: ‘I’m a volunteer” or “I’m active in my church,’” explains Merkle. “If you don’t have something in place to fill the void after retirement and to maintain the skills you’ve developed, you’ll retire to your couch. You won’t be an active part of the community, and will most likely spend your “golden years” alone.”
For more, see this commentary from the Special Needs Alliance, and look for related links. My thanks to Sally for providing links to this conference information!
April 8, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Programs/CLEs | Permalink | Comments (0)
Monday, April 2, 2018
During the Continuing Judicial Education program on "Dementia Diagnosis and the Law" at Dickinson Law on March 29, I offered a list of developments potentially affecting the future of guardianships. One item on my list could have been a stand-alone session in and of itself -- the concept of supported decision-making. I promised the audience I would post some additional materials on the topic here.
For background, as we discussed with the judges, under most states' laws governing guardianships, courts are obligated to search for the least restrictive alternative to a plenary guardianship. Courts sometimes struggle with this issue, especially for older adults, if the incapacitating issue proves to be any of the forms of progressive neurocognitive disorders associated with dementia. If a judge makes a finding of incapacity, and if there is an appropriate, trustworthy guardian available, the judge may feel that it is better to leave it up to the appointed individual to strike the right balance between protection and autonomy on individual issues such as choice of housing or daily activities. The court might find that granting full powers, but trusting the guardian to exercise the powers appropriately, is better than requiring the parties to return to the court for a series of orders, as the incapacity advances, conferring new directions for the guardian to follow.
During the conference we confronted the issues driving the recent calls for reform of guardianship systems, including the latest well-publicized incidents of abuse of authority by an appointed guardian or a private guardianship agency, in locations such as Las Vegas, Nevada and New Mexico.
During the last several decades, guardianship has been the subject of continual calls for reform, often spurred by revelations of guardian malfeasance and other abuses in the system. Recent developments in international human rights law and disability rights advocacy, however, pose a more fundamental challenge to the institution. Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), with its declaration that everyone, regardless of mental disability or cognitive impairment, is entitled to make decisions and have those decisions recognized under the law, offers no less than a promise to end adult guardianship as we know it.
So, what exactly is "supported decision-making?" Professor Diller explains:
The support can take the form of accessible formats or technological assistance in communication. Or it can take the form of "supported decision-making" arrangement, in which "supporters" assist individuals with decision-making in relationships of trust. In whatever form, the support is an appropriate accommodation that enables the individual to enjoy the right to legal capacity.
The author warns there is no single model for supported decision-making. Ideally, the individual designates in advance his or her desired supporter, and the movement behind this approach believes this selection can be recognized even if the individual might not be found to have the requisite capacity to enter into a contract or to execute a formal power of attorney.
In 2015, Texas became the first state in the U.S. to pass a supported decision-making statute, and the Texas statutory approach views this option as a better alternative for individuals who need assistance in making decisions about activities of daily living, but who are not considered to be "incapacitated" as that concept is defined in guardianship law. The Texas statute contemplates an individual who can act voluntarily, in the absence of coercion or undue influence. Information about Texas' law is available here.
In 2016, Delaware became the second state to enact legislation enabling the option of Supported Decision-Making, with Senate Bill 230.
In 2012, the ABA Commission on Disability Rights and the ABA Commission on Law and Aging, working with U.S. government representatives, hosted a round table discussion on supported decision making for individuals with "intellectual disabilities." The ABA captured a host of materials related to this discussion on this website.
In 2017, the ABA House of Delegates adopted a resolution on supported decision-making and endorsed its possible use as a less-restrictive alternative to guardianship, including use of this approach as grounds for termination of an existing guardianship and restoration of rights.
Earlier this year, on February 15, 2018, the ABA hosted a webinar on "Supported Decision-Making as a Less Restrictive Alternative: What Judges Need to Know." While the webinar appears to have been offered only as a one-time "live" option, perhaps a recording will become available in the near future. Here's an ABA webpage providing details.
My special thanks to Pennsylvania Elder Law Attorney Sally Schoffstall, who served as a panelist at the Dickinson Law event last week, for providing me with a copy of The Arc's information on the Texas Supported Decision-Making law, linked above. Additional thanks to Dickinson Law James Adams for photographing the conference!
April 2, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Thursday, March 29, 2018
Penn State's Dickinson Law Hosts Pennsylvania Judges for Program on "Dementia Diagnosis and the Law"
On Thursday, March 29, 2018 Penn State's Dickinson Law hosted a continuing judicial education program for the Pennsylvania Judiciary, with live attendance in Carlisle by more than 30 judges and with even more judges around the state participating via a live stream. The program was "Dementia Diagnosis and the Law," organized into three parts:
Part 1: Medical Science and Dementia
- Welcome by Dean Gary Gildin, Dickinson Law
- Keynote Presentation: Age-Related Cognitive Decline
- Krish Sathian, M.D., Ph.D., Professor of Neurology and Chair of the Department of Neurology for Penn State College of Medicine and Penn State Health Milton S. Hershey Medical Center
- Medical Perspectives – Responding to Legal and Ethical Quandaries of a Diagnosis: Two Brief Vignettes
- Associate Professor Claire Flaherty, Ph.D., Penn State College of Medicine, Department of Neurology
Panel Discussion and Audience Q & A
Part 2: Legal Implications of a Diagnosis of Dementia
- Keynote Presentation: Clinical, Legal and Judicial Judgments of Capacity in Persons with Dementia
- Daniel C. Marson, Ph.D., JD., Professor Emeritus, Department of Neurology, School of Medicine, University of Alabama at Birmingham
- Why “Guardianship Oversight” is a Hot National (and State) Topic
- Professor Katherine C. Pearson, Dickinson Law, Pennsylvania State University
Panel Discussion and Audience Q & A
Part 3: Adjudication Exercises, facilitated by Professor Tiffany Jeffers, Dickinson Law, with Dickinson Law students in role plays on issues about capacity to contract, limited guardians, the roles of guardians ad litem and the potential for attorneys or judges to become affected by a neurocognitive disorder.
- Panel Discussion and Audience Q & A
Panel Members included:
- The Honorable Lois Murphy, Judge, Montgomery County Court of Common Pleas
- The Honorable Paula Ott, Judge Superior Court of Pennsylvania
- Sally L. Schoffstall, Schoffstall Elder Law LLC, Orefield, PA.
- Laurel S. Terry, H. Laddie Montague Jr. Chair in Law & Professor of Law, Penn State’s Dickinson Law
As the law school's organizer for the event, I know I learned a lot from this dynamic group of seasoned experts who spoke on the challenging legal, medical, and judicial issues that can arise from cognitive impairments associated with aging. The judges in our audiences were fully engaged, offering great comments, questions and experiences.
My special thanks to each and every one of the speakers, facilitators, judges, lawyers and students who made the program so informative. It was fun to work with the Administrative Office of the Pennsylvania Courts on this project and we look forward to additional opportunities to collaborate in the future. Once I catch up a little on my day job (and maybe on some missed sleep), I'll post again with some additional reactions and thoughts from this program.
March 29, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Science | Permalink | Comments (1)
New Mexico, Where New Guardianship Laws Will Take Effect July 1, 2018, Struggles With Reporting Systems
Earlier this week, The Albuquerque Journal reported on continued problems with accountability for court-appointed guardians within New Mexico. Colleen Heild writes:
What’s become of Elizabeth Hamel? Hamel is among dozens of people placed under a legal guardianship or conservator in southern New Mexico over the past 20 years whose welfare is unknown – at least according to state district court records. . . . Nothing in the online court docket sheet indicates that Hamel’s case has been closed. But since being appointed, Advocate Services of Las Cruces hasn’t filed any annual reports about Hamel’s well-being or finances, the docket sheet shows.
There’s no indication as to whether she is dead or alive, or if the guardianship/conservatorship has been revoked. . . .
As New Mexico prepares for a new law, effective July 1, to help its ailing guardianship system, the state’s district courts still don’t have a uniform way to ensure guardian compliance with reporting laws that have been on the books at least since 1989.
State Sen. Jerry Ortiz y Pino, D-Albuquerque, said last week that he was disappointed that annual reports haven’t been filed in some cases.
“And I’m not surprised the courts wouldn’t know,” said Ortiz y Pino, a longtime advocate for reform. “That’s what we ran into over and over again, the lack of any kind of system to make it possible to log them (annual reports) in, let alone read them, let alone send somebody out to verify whether or not what they’re reporting is the truth. Those are the kind of things we shouldn’t be missing. Somebody should be at least saying, ‘Hey, you never did file a report.’ ”
For more, read Missing Reports Plague Guardianship System (3/25/18).
March 29, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Monday, March 26, 2018
Maryland is among the several states putting serious energy into modernizing and reforming rules governing guardianships, with major new rules that took effect on January 1, 2018. In Bifocal, the journal of the ABA Commission on Law and Aging, the Honorable Karen Murphy Jensen, who chaired a multidisciplinary workgroup tackling the state reforms, describes the process during an interview. She notes the work ahead for many:
Judge Jensen: These are big changes and courts, attorneys, and guardians need time to navigate them. Maryland’s circuit courts are not uniform and the changes will affect each court differently. Guardianship attorneys need to familiarize themselves with the new requirements and procedural changes. The orientation and training requirements add a step to the process that may overwhelm some prospective guardians and each individual court will have to respond to that reality.
Along the way, the Workgroup consulted with and got feedback from judges, court staff, private attorneys, public agencies, and other service providers outside of the Workgroup. It was clear that the Workgroup would need to provide ongoing technical assistance and develop resources to help everyone navigate these changes once in effect. While sensitive to the impact on family guardians, we believe it is important for guardians to understand what is expected of them and know what tools are available upfront, and for courts to screen out those unable to take on the responsibility.
For more, read: Maryland Judicial Workgroup Spearheads Guardianship Reforms, Vol. 39, Issue 3, Bifocal.
March 26, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, March 23, 2018
On March 22, 2018, the National Council on Disability (NCD) released a new 200-page report and recommendations, calling for substantial reform of the rules and processes used to place individuals with disabilities or the elderly under guardianships.
As set forth in the press release, NCD's findings include:
- Guardianship is often imposed when not warranted by facts or circumstances, because guardianship proceedings often operate under erroneous assumptions that people with disabilities lack capability to make autonomous decisions.
- Capacity determinations often lack sufficient scientific or evidentiary basis.
- Although guardianship is considered a protective measure, courts often lack adequate resources, technical infrastructure, and training to monitor guardianships effectively and hold guardians accountable, which at times allows for guardians to use their positions to financially exploit people subject to guardianships or subject them to abuse or neglect.
- People with disabilities are often denied due process rights in guardianship proceedings.
- Although most state laws require consideration of less-restrictive alternatives, courts do little to enforce those requirements.
- Similarly, though every state has a process for the restoration of one’s rights lost through guardianship, the process is rarely used.
- There is a lack of data on existing guardianships and newly filed guardianships, which frustrates efforts of policymakers to make determinations about necessary areas for reform.
NCD also makes seven sets of specific recommendations, often calling upon the U.S. Department of Justice to take a leadership position in protecting the civil rights of individuals, including providing states with guidance and support for review of existing guardianships with a goal of assessing the potential for restoration of rights.
Here is a link providing access to the full report, Beyond Guardianship: Toward Alternative That Promote Greater Self-Determination, and to a literature review, and to a qualitative research report summary in support of the NCD recommendations.
My special thanks to Pennsylvania Superior Court Judge Paula Ott for sending me timely information on these publications.
March 23, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, March 22, 2018
The National Center of Law & Elder Rights has announced their next webinar, Legal Basics: Protecting Older Adults Against Fraudulent Schemes and Scams. The webinar is scheduled for April 10, 2018 at 2 edt. Here's a description of the webinar:
With savings and assets accumulated over a lifetime, older adults are attractive targets for individuals promoting fraudulent schemes and scams. Scammers use deception, misrepresentation and threats to convince older adults to send money or provide personal financial information. Most frauds and scams go unreported.
This webcast will provide an overview of the frauds and scams aimed at older adults, discuss legal protections, and provide resources to aid older adults defrauded by the individuals and business that promote these scams. The webcast will also focus on efforts by the Federal Trade Commission to prevent older adults from falling victim to these scams.
To register for this free webinar, click here.
March 22, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)
Wednesday, March 21, 2018
With World Elder Abuse Awareness Day just a few months away, it's time to think about any events your organization might offer. According to the USC Center on Elder Mistreatment NCEA email, a microsite has been created that offers suggestions, helpful hints, events and more. Want to take some kind of action? Check the information here for 13 ideas in a number of categories. Planning an event? List it there. It's never too early to start planning! And let others know using #WEAAD.