Tuesday, September 25, 2018
Iowa Supreme Court Case Demonstrates Significance of "Vulnerable Person" Standards in Elder Abuse Cases
Protection laws may be predicated on proof that victims were unable to protect themselves because of a "mental or physical condition." Or sometimes the laws define a right to protection as arising when the person is of a certain age and "because of that age" is unable to protect him- or herself.
The Iowa Supreme Court explained Iowa's vulnerable person exploitation standard in a recent case arising from a request for an order protecting a 69 year-old woman from her son:
We find the following elements need to be proved by a person claiming elder abuse to qualify as a vulnerable elder as defined in [Iowa Code] section 235.F.1(17): (1) The person must be sixty years or older, and (2) is unable to protect himself or herself from elder abuse as a result of one of the following: (a) age, (b) a mental condition, or (c) a physical condition. Id. The statute makes it clear that if a person is sixty years or older and age alone, without a mental or physical condition, makes someone unable to protect himself or herself from elder abuse, then that person is a vulnerable elder as defined in section 235F.1(17). . . .
The district court viewed the testimony and concluded Chapman's age alone made her a vulnerable elder. In our de novo review, we give weight to the district court's finding and find Chapman's age made her unable to protect herself from elder abuse. She gave all her assets to her children. She was unemployed with a fixed income. [Appellant son] demanded $35,000 from her to stay in the mobile home [she had originally owned]. At her age, she was unable to pay him. She voice a concern that she was to old to handle the eviction notices [he] was giving her.
In summary, [the son] took advantage of Chapman due to her age and financial condition. The evidence supports a finding Chapman was a vulnerable elder. The purpose of the elder abuse statute was to allow our elderly population to seek relief from actions such as Wilkinson's without the expense of a more costly and time consuming action that others argue are appropriate under the circumstances.
For the full opinion, see In re Petition of Chapman, 890 N.W. 2d 853 (Iowa 2017).
Last weekend, Penn State's Dickinson Law held our annual alumni weekend, combined with a convocation ceremony for first year law students. I also happened to attend a non-law school function. In breaks during scheduled events, I had time to chat with alums and friends and by the end of the weekend, I realized there was a bit of theme to my conversations the last few days. In several of the conversations, someone described to me scenarios where an older individual had become involved with a new friend or a new caregiver, or a long-lost family member and was "allowing" that third person to take advantage of them, usually in the form of monetary gifts or "loans," that would never be repaid.
As we talked, I think we mostly agreed that one possible motivating factor for the older person was some level of fear, and not fear of the third person, but fear of being alone. The exploitive behavior was tolerated because it was apparently preferable to being alone, or worse, being compelled to living in the dreaded nursing home.
Another analysis I heard, but was less willing to agree with, was the lament, "what can you do, because X is competent and he has a right to give away his money if he wants to do so?"
In one example, the elderly person removed all of his life savings from a long-time professional money manager and placed the assets with a "new" manager, all because the new manager promised to charge "no" management fees. The new manager held no licenses or professional qualifications. A few months later, the client passed away -- and the new manager turned out to be the sole beneficiary of the estate.
In another instance, the observation about competency or capacity was made about an older person over the course of several months, even as that person became more and more entangled with seemingly opportunistic "befrienders" who were viewed as untrustworthy by others. Several weeks after the man seemed to disappear, his body was found in a shallow grave, while someone was still accessing his Social Security income. A pretty dramatic end to that story of misplaced trust.
My question: How is it that we all tend to emphasize that the older person was competent -- or appeared to have capacity -- even as there is also evidence he or she is trusting the wrong persons?
What I have learned from working with neuropsychologists is that so-called mini-mental exams used by primary care physicians do not necessarily evaluate an important, core component of capacity, a person's ability to exercise judgment in a sound way. Some screening tools tend to focus on cognitive components that are more easily evaluated through a brief exercise, such as asking the individual to perform exercises that tend to focus on short-term memory or even delayed-recall abilities. This is important because one aspect of judgment is the ability or inability to evaluate risk. Impaired judgment is viewed as an executive dysfunction or impairment, but it can exist without (or with only modest) memory impairment. Plus, impaired executive function can also be associated with lack of awareness or denial that there is a problem.
The significance of loss of executive function has been tracked by legal practitioners, such as Patterns in Cases Involving Financial Exploitation of Vulnerable Adults (2014 Michigan Bar Journal). On the important differences in screening tests used, see also Assessing Executive Dysfunction in Neurodegenerative Disorders: A Critical Review of Brief Neuropsychological Tools, published November 2017 in Frontiers in Aging: Neuroscience.
September 25, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Legal Practice/Practice Management | Permalink | Comments (0)
Friday, September 21, 2018
This is the third of three postings about adult guardianship reform, with an eye on legislation in Pennsylvania under consideration in the waning days of the 2017-18 Session.
Senate Bill 884, as proposed in Printer's No. 1147, makes basic improvements in several aspects of the law governing guardianships as I describe here. A key amendment is now under consideration, in the form of AO9253. These amendments:
- Require counsel to be appointed for all allegedly incapacitated persons;
- Require all guardians to undergo a criminal background check;
- Require professional guardians to be certified;
- Require court approval for all settlements and attorney fees that a guardian pays through an estate (reflecting recommendations of the Joint State Government Commission's Decedents’ Estates Advisory Committee).
Most of these amendments respond directly to the concerns identified in the alleged "bad apple" appointment cases in eastern Pennsylvania, where no counsel represented the alleged incapacitated person, where there was no criminal background check for the proposed guardian, and where the guardian was handling many -- too many -- guardianship estates.
A key proponent of the additional safeguarding language of AO 9253, Pennsylvania Senator Art Haywood, has been working with the key sponsor for SB 884, retiring Senator Steward Greenleaf. His office recently offered an explanation of the subtle issues connected to mandating a criminal background check:
The PA State Police needed to fix some technical issues for us regarding national criminal history record checks only to make sure that when we send the legislation to the FBI for approval, they won’t have anything with which to take issue. The FBI requires an authorized agency to receive these national background checks; DHS is an authorized agency, but the 67 Orphans’ Courts in PA are not. Further, the FBI prohibits us from requiring recipients of national background checks to turn them over to a third party for this purpose, so we can’t require DHS or receiving individuals to send the national background check to the court.
As such, we had to develop a procedure that would still get courts information about whether someone under this bill has a criminal background from another state that would otherwise prohibit them from serving as a guardian. We switched the language around a bit to require DHS to send a statement to the individual that verifies one of 3 things, either: (1) no criminal record; (2) a criminal record that would not prohibit the individual from serving as guardian; or (3) a criminal record that would prohibit the individual from serving as guardian. The individual would then have to bring this statement from DHS to the court when seeking to become a guardian. As in previous versions, the individual has an opportunity to respond to the court if there is a criminal record that would prohibit the individual from serving, and the response should assist the court in determining whether that person nevertheless is appropriate (for example, a person can voluntarily provide their own copy of their national background check – or other types of evidence – for the court to review).
The devil is in the details for any legislative reforms. It is often an "all hands on deck" effort to secure passage, especially in an election year.
Will the Pennsylvania Legislature pass Senate Bill 884 to make changes appropriate for safeguarding of vulnerable adults?
September 21, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, September 20, 2018
Continuing with the analysis from yesterday for why many jurisdictions are finally confronting the need to make changes in their adult guardianship policies and laws, here is my take on additional reasons. Will Pennsylvania enact Senate Bill 884 this session to get the ball rolling on reform?
Troubled histories have emerged across the nation. Public concern has grown around the need for more careful consideration of the roles played by guardians. For example, events in recent years have highlighted the following problems:
- In Las Vegas, Nevada, uncritical reliance on a few individuals to serve as appointed “professional” guardians was linked to manipulation and abuse of the incapacitated wards and misuse of the wards’ financial resources. Concerned family members alleged corruption and their advocacy drove a reluctant system to examine the history of appointments, leading to the indictment and arrests of a frequently appointed guardian, members of her staff and a police officer in February 2018.
- In New Mexico, two nonprofit agencies used for guardianship services were investigated; principals were indicted by the U.S. Attorney for thousands of dollars in theft from the estates of incapacitated individuals. This in turn triggered a massive call for emergency reform of New Mexico guardianship law, with the new laws coming into effect in July 2018.
- In Florida, complaints by family members and others presented to the Florida Legislature over several years, resulted in three successive years of reforms to Florida guardianship law. One dramatic example was a particular court’s uncritical reliance on “friends” of the court to be appointed as guardians and paid out of the wards’ estates. In some instances the court rejected appointment of available family members. In 2017, a jury awarded a verdict of $16.4 million against lawyers for breaching their fiduciary duties and charging unnecessary and excessive fees.
The New Yorker magazine published a feature article in October 2017 on the Las Vegas history, criticizing the state’s reluctance to investigate and make timely changes in its systems for appointment and monitoring of so-called professional guardians. The title of the article is eye catching: How the Elderly Lose Their Rights, by Rachael Aviv.
While location-specific news stories of scandals come and go, the persistence of guardianship problems points to systemic weaknesses that require modern, uniform standards. Thirty years ago, the Associated Press published a six-part national investigative series entitled Guardians of the Elderly: An Ailing System. The series revealed frequent failures to appoint counsel to represent an alleged incapacitated person and the lack of clear standards for guardians who serve as fiduciaries.
September 20, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, September 19, 2018
The National Consumer Voice for Quality Long Term Care has released a new issue brief, Sexual Abuse in Nursing Homes: What You Need to Know. The brief discusses the types of sexual abuse, those more likely to be victims, and information about the perpetrator. The brief notes the residents rights to have consensual sex. It also offers a checklist of steps to take if sexual abuse is suspected as well as a list of helpful resources.
Will Pennsylvania Pass Long-Awaited Adult-Guardianship Law Reforms Before End of 2017-18 Session? (Part 1)
For the last few years, I've been quietly observing draft bills addressing needed reforms of Pennsylvania's adult guardianship system as they circulate in the Pennsylvania legislature. Over the next few days, drawing upon a detailed update memorandum I prepared recently for interested parties, I will post reasons why the legislature can and, many would argue, should move forward in 2018.
Today, let's begin with background. First, here is the status of pending legislation and the timetable that could lead to passage:
Pennsylvania Senate Bill 884 (Printer’s No. 1147) presents an important opportunity to enact key reforms of Pennsylvania’s Guardianship Laws. The bill is based on long-standing recommendations from the Pennsylvania Joint State Government Commission. The Senate unanimously passed an earlier identical measure, S.B. 568, during the last legislative session (2015-16). The current bill was approved and voted out of Senate committee in June 2018, but then tabled. Although the schedule is tight, there is still time for action by both house before the end of the session in November. If not fully passed and signed this year, a new bill must be introduced in the next legislative session.
The Pennsylvania Senate has scheduled session days before the November election on September 24, 25, and 26 and October 1, 2, 3, 15, 16, and 17. The Pennsylvania House of Representatives also has scheduled session days for September 24, 25 and 25, and October 9, 10, 15, 16 and 17. If S.B. 884 is passed by the Senate in September, it appears there may be adequate opportunity for the House to move the legislation through the House Judiciary Committee and to the floor for final passage.
Second, let's review the steps taken most recently towards reform of existing Pennsylvania law:
In 2013-14, the Pennsylvania Supreme Court formed an Elder Law Task Force to study law-related matters relevant to the growing population of older persons in Pennsylvania. The team included members of all levels of courts in the Commonwealth, plus private attorneys, criminal law specialists, and perhaps most importantly, members of organizations who work directly with vulnerable adults, including but not limited to seniors. Guardianship reform quickly became a major focus of the study. I was a member of that Task Force.
Statistics available to the Task Force in 2014 show that some 3,000 new guardianship petitions are filed with the Pennsylvania Courts each year, of which approximately 65% are for alleged incapacitated persons over the age of 60. The number of new petitions can be expected to increase in the very near future. During the last six years, the cohort of Pennsylvania’s population between the ages 64 and 70 grew by a record 31.9%. Soon, that aging cohort will reach the years of greatest vulnerability with the increased potential for age-related cognitive impairments or physical frailty. Appointment of a guardian is usually a choice of last resort, sometimes necessary because of an emergency illness or because individuals have delayed using other means, such as execution of a power of attorney or trust, to designate personally-chosen surrogate decision-makers.
When a determination is made that an individual is incapacitated (as defined by statute) and in need of certain assistance (again, as defined by law), courts have the duty and power to appoint a person or an entity as the “guardian.” Once appointed by a court, guardians can be given significant powers, such as the power to determine all health care treatment, to decide where the individual lives, and to allocate how money can be spent. While Pennsylvania law states a preference for “limited guardianships,” in reality, especially if no legal counsel is appointed to represent the individual to advocate for limited authority, it is more typical to see a guardian be given extensive powers over both the “person” and the “estate.”
The Task Force began its work by undertaking a candid self-assessment of existing guardianship processes. Based on its review of the history of guardianships in Pennsylvania, the Task Force issued detailed findings as part of its final Report released in November 2014, including the following:
- Guardianship monitoring is weak, if it occurs at all.
- Training is not mandated for professional or non-professional guardians.
- Non-professional guardians are not adequately advised as to the duties and responsibilities of managing the affairs of an IP [incapacitated person].
- The quality of guardianship services varies widely, placing our most vulnerable citizens at great risk.
The Pennsylvania Supreme Court identified a need for better information about the actions of appointed guardians; such information would be central to all recommended reforms. The Task Force recommended a new system enabling statewide accountability and consistent oversight.
Following the Task Force Report and Recommendations, and under the leadership of the Supreme Court, the Administrative Office of the Pennsylvania Courts began working on procedural reforms, beginning with creation of an Office of Elder Justice in the Courts. The Courts developed a new, online Guardianship Tracking System, and in June 2018 the Supreme Court adopted new Orphans Court rules (14.1 through 14.14) that establish certain procedural safeguards for guardianships and require use of uniform, state-wide forms and reporting standards for all guardians. These rules are scheduled to become fully effective by July 2019.
Pursuant to a Judicial Administration Rule adopted August 31, 2018, the Supreme Court mandated a phased implementation of the tracking system, with workshops offering training for guardians on how to use the system to file inventory and annual reports. See Guardianship Tracking System Workshop.
Not all recommended reforms, however, can be accomplished by the Courts adopting procedural rules. Key substantive reforms require legislative action. Senator Stewart Greenleaf, the chair of the Senate’s Judiciary Committee and a frequent sponsor of child and adult protective measures, introduced Senate Bill 884 (and its predecessor). After many years of service and leadership in the Capitol, Senator Greenleaf is retiring this year; therefore, any necessary renewal of the legislation must attract new leadership.
September 19, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Tuesday, September 11, 2018
I've been reading articles for several weeks about a "troubled" nursing home in Connecticut where staff members were reportedly being paid late, and not receiving payments on related benefit claims (including health care and pensions).
The reports sound unusually mysterious, with indications of an executive's "loan" to a related charity from operating reserves. Suddenly more than $4 million was apparently restored to a key pension account:
As News 12 has reported, federal agents raided the center back in May. When the raid happened, that account was down to $800. For years, workers have complained about missing retirement money. In a lawsuit, the Labor Department claims the facility's owner illegally funneled their money into his own private charity.
Now, according to new court documents, the $4 million was unexpectedly deposited into the pension account last week. It's unclear where the money came from, and even the bankruptcy trustee running the facility was unsure.
"I don't truly know the source, but I do know that there's $4.1 million in this bank," bankruptcy trustee Jon Newton said at a court hearing yesterday.
But in a recent court hearing, owner Chaim Stern's lawyer said the money "was meant to represent the $3.6 million transferred from the (retirement) plan to Em Kol Chai." That's the charity authorities say Stern controls.
Workers may not get as much of that money as they think. Bridgeport Health Care has a long list of creditors, and they could potentially get a share.
News 12 reported back in July that part of the facility, called Bridgeport Manor, is shutting down. Lawyers say they hope to wrap that process up within a month.
September 11, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0)
Monday, September 10, 2018
Abigail Kawananakoa, age 92 and the heiress of a legendary Hawaiian estate as the descendant of a family who once ruled the islands, is at the center of a court dispute about whether she is able to manage her own affairs -- and a $215 million trust.
The money should go toward helping Native Hawaiians, they [Foundation Board Members] said at a news conference Thursday in front of Honolulu’s Iolani Palace. They are asking a judge to appoint a guardian for the elderly heiress, whose riches come from being the great-granddaughter of James Campbell, an Irish businessman who made his fortune as a sugar plantation owner and one of Hawaii’s largest landowners.
Many Native Hawaiians consider Abigail Kawananakoa to be the last Hawaiian princess because she’s a descendent of the family that ruled the islands before the overthrow of the Hawaiian kingdom.
A key court hearing in a legal fight over the trust is scheduled for Monday.
Her longtime lawyer, Jim Wright, persuaded a judge to appoint him as trustee, arguing a stroke last year left her impaired. Kawananakoa says she’s fine.
As trustee, Wright appointed three prominent Native Hawaiian leaders to serve as board members for the $100 million foundation Kawananakoa created in 2001. The foundation has a right to participate in the court battle because it is a beneficiary of her trust.
Kawananakoa “has reached a point in her life where she needs us to stand up and fight for her and her legacy,” said foundation board member Jan Dill. Kawananakoa intended that the foundation serve the Hawaiian community in arts, language, culture and education, he said.
For more, read Foundation Board: Protect Hawaiian Heiress' Millions.
While the above article does not fully explain the family dynamics, a photo accompanying the article depicts Ms. Kawananakoa and her wife, Veronica Gail Worth, who appears to be younger. Another article describes Ms. Worth as a "longtime caregiver." See A Cautionary Story of Elder Financial Abuse. Still other new reports describe Ms. Worth as Kawananakoa's "partner of 21 years," prior to their October 2017 marriage ceremony, conducted before a retired Hawaii Supreme Court Justice. See Hawaiian Heiress, 91, Marries Longtime Partner Amid Court Battle.
September 10, 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 (0)
Tuesday, September 4, 2018
Thanks to Julie Kitzmiller for sending me the link to a podcast at AARP on the Brooke Astor case. Brooke Astor: Famous Socialite Robbed is one in a series (this one is #18) of podcasts on "the Perfect Scam". The podcast runs about 25 minutes. Here's a description:
A prominent philanthropist and the epicenter of the New York society scene, Brooke Astor lived a tumultuous but glamourous life. Left a fortune by her third husband, Vincent Astor, Brooke planned to live out her later years at her country estate. But when Brooke’s son refuses to let her do so, then sells his mother’s favorite painting (worth over $30 million), grandson Philip decides to step in. Philip’s efforts to return his grandmother to the country home she loved would uncover one of the most prominent cases of financial elder abuse in U.S. history, with millions lost and a family torn apart.
A time-coded transcript accompanies the podcast and is available here.
September 4, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink
Tuesday, August 28, 2018
While courts are most often called upon to appoint guardians or conservators in the absence of an authorized agent, another way in which courts may be required to act is when family members disagree about the course of care under private arrangements. High profile examples of how this can arise often involve celebrities. The latest example seems to involve comedian Tim Conway, where his wife and daughter are reportedly at "odds over his medical treatment." From People magazine's online site comes this sad report:
The 84-year-old Carol Burnett Show star’s daughter Kelly is asking to be appointed conservator of her father and be in charge of his medical treatments, according to court documents obtained by PEOPLE and first reported by The Blast.
Kelly, 56, filed the documents in Los Angeles on Friday, claiming Conway’s wife Charlene is “planning to move him out of the excellent skilled nursing facility he is currently at” and place him in one that won’t give him access to “registered nurses at all times and his 24-hour caregiver and speech therapist (to help with swallowing).”
Charlene is Conway’s second wife. He was previously married to Kelly’s mother Mary Anne Dalton from 1961-78. (In addition to Kelly, they share daughter Jackie and sons Jaime, Tim Jr., Pat, Corey and Shawn.)
Kelly also states that Conway cannot “properly provide for his personal needs for physical health, food, and clothing” and is “almost entirely unresponsive.”
Second marriages, where the families did not blend well, often seem to be a factor, especially if money becomes an issue. My thanks to my Dickinson Law colleague Laurel Terry for sharing this item for our Blog.
August 28, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases | Permalink | Comments (0)
Friday, August 24, 2018
Sweetheart Swindles: What to Do When You Suspect An Aging Friend or Family Member is Vulnerable to the Con?
A number of years ago, a friend of mine was riven with anxiety because his widowed father seemed to be under the sway of a woman who, in the eyes of the family and the man's long-time friends, was "bad news." His father had been a shrewd businessman, his son would lament, unable to understand his father's late-in-life willingness to casually hand cash to the woman. This was before I had begun working in elder law, and I remember thinking that perhaps the father was just "in love," and I questioned whether it was right for the son to interfere. Didn't the father have a right to be a fool in love?
We all know that conmen and conwomen are out there, but I suspect we also tend to have faith in our individual abilities to avoid falling into their traps as we age.
When it comes to watching others, perhaps we are amused by lighthearted movies that portray swindlers as relatively benign, with the "victim" just as likely to pull a reverse con as to be truly harmed. For example, think of the 1998 movie Dirty Rotten Scoundrels (which as actually a remake of 1964 movie, Bedtime Story), with two competing, debonaire charmers played by Michael Caine and Steve Martin and their mark, a woman of a certain age, who proved to be several steps ahead of them. In movies we treat the deeds of many criminals as entertainment -- remember Good Fellas and The Sopranos?
When we are reluctant to intervene, perhaps it is because we're conditioned to think optimistically about romance, even or especially as we grow older. Or, we're programmed to assume the individual is making a "foolish" but nonetheless coherent decision to continue involvement with the person who everyone else sees as "a problem."
These thoughts were running through my mind as I read an amazing, recent story in the New York Times, A New Wife, A Secret Past, and a Trail of Loss and Blood. I won't spoil it for you here by trying to summarize it, because much of the power of the tale comes from reading the details slowly.
At the same time, the story does raise a question in my mind, one that I've confronted often in elder law, about whether the individual's vulnerability is due to a cognitive impairment.
August 24, 2018 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Wednesday, August 22, 2018
I'm giving a big sigh as I begin to type this particular blog post. I hate the topic of thieving lawyers, and especially those who hold themselves out as elder law professionals. But, I also can't ignore the topic. I keep a notebook of news articles and bar association disciplinary cases on elder abuse involving lawyers and although certainly the bad apples are a tiny fraction of the profession, my notebook is growing.
The latest news comes from New Jersey, where a high profile lawyer -- who hosted a radio show and taught seminars on elder law -- pleaded guilty in late July in state court to stealing "millions" from clients. Robert Novy, 66, faces sentencing on September 28, and the AG recommends 10 years in state prison.
In some ways Novy's history mirrors other cases I've followed more closely in Pennsylvania, as it began with him placing client funds into his firm's trust accounts, accounts which are usually meant to be a temporary spot for use in future client-directed transactions. At some point he then proceeded to transfer the funds to his own operating accounts, in direct violation of statutory and ethical rules. Also, counterintuitively, his "mature" age and experience are something I've seen with other attorney fraud cases in Pennsylvania. Were they always bad apples or did they just stay too long in the bin? The histories often seem to begin with the lawyer's "promise" to invest the funds for clients, relying on long-years of practice as a sign of reliability, even though, generally speaking, lawyers probably aren't the best source of investment advice. In fact, the Pennsylvania Supreme Court adopted new rules in 2014 that placed restrictions on attorneys' involvement in "investment products."
In another way, Novy's history is unusual. I've found that most of the big ticket thefts by attorneys from older clients involve sole practitioners. They seem like lone wolves, operating without traditional checks and balances. Novy, who called his firm Robert C. Novy & Associates, had other attorneys in the firm. Sadly, it seems that Novy may not have been operating solo in his fiduciary crimes, as an "associate" attorney who had also been practicing law for many years was charged with similar crimes involving client funds. I could not find the outcome of those charges, or whether the charges are still pending.
In these New Jersey cases, the charges date back to 2015 and 2016. I suspect delays in bringing the cases to trial or plea may be tied to efforts to "permit" the lawyers some opportunity to repay the defrauded clients by liquidating their personal assets; ultimately, however, going forward with the criminal charges (rather than "mere" disciplinary sanctions) suggests the reimbursement opportunity was unavailing.
Thursday, August 16, 2018
On June 5, 2018, a Michigan Appellate Court issued an order demonstrating the tension between two concerns, respect for autonomy and a goal of protection, that can arise when a court is asked to determine who will be appointed a guardian or conservator. The case strikes me as a good vehicle for classroom discussion.
The appellate court concludes that the trial court abused its discretion by appointing a professional fiduciary, in lieu of the alleged incapacitated person's adult daughter, where there was a failure to make specific findings to explain why the state law''s "order of priority and preference" was not followed. The opinion for In re Guardianship of Gerstier notes:
While the probate court's focus on [the father's] welfare is commendable, the court missed a critical step in the analysis. When Milbocker [a private, professional guardian] resigned as [the father's] guardian and conservator, [the daughter] petitioned to be appointed to fill those roles. At that juncture, the probate court was required to reconsult the statutory framework before appointing another public administrator. The court never articulated any findings regarding [the daughter's] competence and suitability to serve. Absent those findings, the court erred by appointing [a new professional guardian].
The history recounted by the appellate court suggests that the man's daughter, living in Texas, and the man's sisters, living in Michigan, were both seeking control over the father's estate, with the sister making allegations that the daughter's personal and financial history made her an inappropriate choice. The daughter made counter allegations about the sister's motives and behavior. In addition, the father had signed conflicting POAs. In 2013 and again in 2015, the father identified the daughter in two powers of attorney as his preferred agent; however, in 2016, after being diagnosed with Alzheimer's disease and after his wife died, the father began living in Michigan with his sister, where he signed a new POA designating that sister as the agent.
Michigan law grants priority to "a person nominated as guardian in a durable power of attorney or other writing." Further, in the absence of an effectively designated individual, the statute provides an ordered list of preferences, beginning with the spouse and next with "an adult child of the legally incapacitated adult."
The Michigan appellate remanded the case to the trial court with directions to reconsider the appointment of a new guardian and conservator and to make "specific findings of fact" regarding the daughter's "competence, suitability and willingness" to serve. Further, the court directed that if the sister provided evidence during the remand, the court must "weight her credibility carefully in light of incorrect information she provided in her initial petition...."
Reading between the lines of the court history here, one can see how the trial court decided to go with a professional guardian, probably seeing appointment of a "neutral" professional as the safer option where money seemed to be the main focus of the control issues. (The father seemed to be comfortable traveling between his daughter in Texas and his sisters in Michigan.) State guardianship/conservatorship laws that have adopted lists of preferred individuals, however, require additional steps to explain why party autonomy will not be respected, or why the state's preference list will not control. Such laws significantly alter the discretion once accorded to the court under many state's older appointment laws. Will more careful adherence to the laws change the result in this case on remand? For the classroom exercise, ask students what they predict will be the trial court's next ruling.
Tuesday, August 14, 2018
Register now for a free webinar from the National Consumer Voice for Quality Long Term Care. The webinar is scheduled for September 5, 2018 at 2 edt. Here is some info about the webinar
Join this webinar to learn about sexual abuse in nursing homes. Presenters will discuss a variety of topics to help you recognize the signs of sexual abuse and immediately respond to it.
We will examine the full scope of sexual abuse in nursing homes, including: (1) its prevalence, (2) the physical and social signs of sexual abuse, (3) who is most at risk, and (4) who the perpetrators are. In addition, you will learn the protections the federal nursing home rule provides for nursing home residents against this abuse and how to respond to the needs of victims. Finally, we will equip you with concrete knowledge on how ombudsmen can advocate for nursing home residents who are victims of this type of abuse, including hearing from a special presenter on the ombudsman role in the Washington Alliance to End Sexual Violence in Long-Term Care.
To register, click here
August 14, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Programs/CLEs, Webinars | Permalink
Sunday, August 12, 2018
Register now for this DOJ Elder Justice Initiative webinar Digging Deeper: When Consent is Not Consent.The webinar is scheduled for September 6, 2018 at 2 p.m. edt. Here's a description of the webinar:
Jane Walsh, Director of At-Risk Protection, Denver District Attorney’s Office, will discuss the concept of consent, which underlies a range of actions in criminal and civil law, including gifting money. In the context of financial exploitation, prosecutors and law enforcement will regularly be faced with many situations where a victim is aware that money or assets are being transferred to a suspect, and is apparently consenting to this happening. It is easy for incorrect assumptions to be made about consent, for example, labeling a financial gift as a poor decision rather than the result of fraud or some other action. Learn more about the dynamics of these cases, how capacity factors in, and thoughts on tactics and strategies to consider when building and trying these cases.
The concept of consent underlies a range of actions in criminal and civil law, including gifting money. In the context of financial exploitation, professionals at times make incorrect assumptions about consent, for example, labeling a financial gift as a poor decision rather than the result of fraud or some other action. Increasing the complexity of these cases is the issue of consent. Learn about the elements of consent, how to confirm consent, and how to distinguish consent from actions or conditions (such as diminished capacity) that negate consent.
To register, click here.
While you are at it, also register for the 3rd in a series webinar on Financial Crimes vs. Seniors. This one, Financial Crimes Against Seniors Part 3 - Response, Prosecution, and Prevention
is set for September 19, 2018 at 1 p.m. edt and will cover
A collaborative project of NW3C and the Elder Justice Initiative, this webinar is the third in a series of three webinars based on the NW3C Financial Crimes Against Seniors class, and will include:
- Responding to a Senior Call
- Prosecuting Elder Exploitation
- Promoting Awareness and PreventionClick here to register for this one!
Friday, August 10, 2018
Filial Friday: N.D. Nursing Home's Claim Against Adult Children for Father's Unpaid Bills Set for September Trial
According to news reports, here and here, three siblings are facing a September 2018 trial date after being sued by a North Dakota nursing home for more than $43,000 in unpaid costs of care for their father, incurred during a seven month stay at the facility. The children maintain they have no contractual obligation with the nursing home, and were not involved in their father's application for Medicaid, nor did they receive disqualifying gifts from their father. A denial of a Medicaid application can arise if there is an uncompensated transfer of assets within a five year look back period, or because of certain other unexplained failures to use the father's "available" resources to pay for his care.
A North Dakota's statute, N.D.C.C. Section 14-09-10, with language that can be traced back to filial support laws of Elizabethan England, provides:
It is the duty of the father, the mother, and every child of any person who is unable to support oneself, to maintain that person to the extent of the ability of each. This liability may be enforced by any person furnishing necessaries to the person. The promise of an adult child to pay for necessaries furnished to the child's parent is binding.
One news report quotes the executive director of the North Dakota Long Term Care Association, Shelly Peterson, as saying nursing homes use the law to go after adult children in only one circumstance: "When parents transfer income or assets to their children, and then the parents don't qualify for Medicaid." The director is reported as further contending that "facilities are 'legally obligated' under Medicaid to pursue every avenue possible to collect that debt, including suing, before they can get reimbursed from the state Department of Human Services for a debt that cannot be recovered."
According to some sources, local legislators, aroused by this suit, are looking at whether North Dakota should continue to permit nursing home collections under North Dakota's indigent support law. Such laws have been blocked or repealed in most other U.S. states. North Dakota and my own state, Pennsylvania, are the two most notable exceptions.
My reaction to the news articles on this case is "something doesn't add up here" and some key facts seem to be missing.
- First, if the father was in the nursing home for 7 months, who did the children think was paying for his care? I can't imagine no one in the family asked that question for that period of time (although certainly Medicaid applications can take time to process and perhaps the denial came in after the father's death).
- What was the basis for any denial for Medicaid? I've seen Medicaid denied for inability of the applicant (or applicant agent) to track down some old resource, such as a demutualized life insurance policy. Also, what is the source of the contention that Medicaid law "requires the facility to sue" to collect the debt? I'm not aware of any such rule at the federal level.
- Is there another member of the family involved in the application -- someone other than the three target children -- or is there another family member involved in any "transfers" causing an alleged ineligibility period? In the U.S., filial support laws don't prioritize collection, nor require recovery from so-called "bad" children, rather than more "innocent" children.
- Finally, why weren't there care planning meetings with the family that included discussions of costs of care? It always raises a red flag for me when the "first" alleged notice of such a claim arises after the death or discharge of a resident.
Perhaps we will hear the results of the trial or any settlement, and thus hear a more complete picture of how these bills came to accumulate.
August 10, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Monday, August 6, 2018
Here is a description of the webinar
Please join the EJI webinar on August 9, 2018, at 2:00 p.m. eastern time, as Nicole Sato, Deputy District Attorney, provides an overview of the role of a prosecutor at the MDT table. Learn how to strengthen collaboration with your team’s prosecutor by delving into their role, contributions, and professional perspective.
Join in a discussion about the ethical responsibilities of a prosecutor and the importance of multidisciplinary collaboration in the fight against elder abuse. The discussion will include the prosecutor’s perspective on what makes a good case; what are their parameters on an MDT; what they get out of MDT collaborations and how best to collaborate; and what they contribute. Plus, we will clear up some common assumptions and misconceptions regarding the parameters of their work.
To register for the webinar, click here.
The following day, August 10, 2018 at 2 p.m. edt, another webinar will be held, focusing on Elder Justice Initiative: The Role of Judges in an Elder Abuse Case
Judge Karen Howze will discuss the dynamics of elder abuse, relevant issues such as cognitive capacity, expert witnesses that may be required, reasonable courtroom accommodations, the advantages of elder abuse multidisciplinary teams, and the importance of judicial leadership on the issue of elder abuse. Judges play a critical role in adjudicating the wide array of elder abuse, neglect and financial exploitation cases that come before them. Elder abuse and fraud enter courtrooms both directly in civil and criminal cases, as well as indirectly (e.g., in the context of a guardianship proceeding), so there are many critical issues to discuss.
To register, click here.
Thursday, August 2, 2018
In McKnight's Long-Term Care News, guest columnist Tim Ford, a New Jersey attorney, tackles the challenging issues surrounding the use of so-called "Granny Cams" in care facilities. Where families are worried about the quality of care, they may attempt to install a hidden camera in the loved one's room. Or, a facility might want to use such cameras to monitor its own employees. Should states regulate such use? Should states restrict or even prevent use?
First, a little background. Texas was the first state to directly address the issue of granny cams. In 2001 it enacted a statute providing that a nursing home or related institution "shall permit a resident or the resident's guardian . . . to monitor the room of the resident through the use of electronic monitoring devices." Notice of surveillance was required to be posted at the entrance to the facility and the resident's room. The state later added regulatory limitations on use of such cameras, and the authorizing statutes were also amended in 2015.
Tim Ford's column updates the history and points to the need for further legislative clarity:
At least nine U.S. states have enacted statutes regarding the use of granny cameras. Approximately fifteen other states have proposed statutes or regulations but have not moved forward with implementation. The law is not consistent and sometimes does not even exist for many states. It is critical for a nursing home owner to know the status of the granny camera laws wherever they operate facilities, and to make the necessary adjustments to their staff and resident policies. In certain states, the nursing home is prohibited from banning the use of granny cameras, as long as the resident or family member adheres to certain guidelines.
For more, read Examining the Issues of Granny Cameras in SNFS.
Tuesday, July 31, 2018
In a recent issue of The New Yorker is staff writer David Owens' detailed account of his mother's entanglement with scammers. It is a tale all too familiar to any of us who have represented families in trying to stop such scams (much less recover money). At each level of law enforcement, he and his sister encounter experienced professionals who were fully familiar with such scams, but who simply weren't eager to pursue an investigation of another such case. You can feel the sense of their hopelessness about such a mission.
David's mother, living in Kansas, was a victim, via internet and telephone calls from a scammer who was working out of a base in California (or beyond). While the son and daughter were able to put an end to some of the scamming behavior by putting holds on financial accounts and taking over the checkbook, they were stunned when their mother avoided this intercept by simply traveling to another branch of the bank and accessing money from the "frozen" account in order to mail it off to her buddy "Sam."
All of this feels especially sad and familiar to me. Not just from the experience with clients we had in our Elder Law Clinic at Dickinson Law, but from my own mother's experience with a predatory former homecare worker. Even though we showed Mom the clear evidence of his particular con game (asking for two or more paychecks each week, calling one an advance, knowing she would not remember any such advance the next week; his pay doubled, then tripled in the course of 6 months), and even though she accepted he had to be discharged because he couldn't or wouldn't stop the con, he still managed to get her to meet him, in her bathrobe at the crack of dawn, in the alley behind her house to hand him more cash. It was another "advance."
In David Owens' story, My Mother and Her Scammer, his aging mother was lonely. So too was my mother; "helping" the conman made her feel like she was important and needed. But in both instances, our mothers' misplaced trust is a sign of reduced executive function in the brain, with the hallmark inability to appreciate risk. Plus, in both instances the conman knows exactly how to play his mark.
My thanks to Karen Miller, Esq., in Florida for sending me this well-written (and frustrating) tale.
Tuesday, July 17, 2018
McKnight's Senior Living Newsletter editor Lois Bowers wrote an article that alerted me to the June 2018 publication of a new study of unlicensed residential care facilities. From the abstract:
Residential care facilities operating without a state license are known to house vulnerable adults. Such unlicensed care homes (UCHs) commonly operate illegally, making them difficult to investigate. We conducted an exploratory, multimethod qualitative study of UCHs, including 17 subject matter expert interviews and site visits to three states, including a total of 30 stakeholder interviews, to understand UCH operations, services provided, and residents served. Findings indicate that various vulnerable groups reside in UCHs; some UCHs offer unsafe living environments; and some residents are reportedly abused, neglected, and financially exploited. Regulations, policies, and practices that might influence UCH prevalence are discussed.
The study included visiting unlicensed facilities in Georgia, North Carolina and Pennsylvania.
For the full report see Unlicensed Care Homes in the United States: A Clandestine Sector of Long-Term Care, by Michael Lepore, Angela M. Greene, Kristie Porter, Linda Lux, Emily Vreeland, and Catherine Hawes, published in the Journal of Aging and Social Policy.
July 17, 2018 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)