Monday, June 16, 2014
A United Nations treaty, civil rights, guardianship, protection from school bullies, free appropriate public education, and emotional-support animals are topics covered in this disability-themed May-June 2014 Clearinghouse Review issue. Also covered: making the most of current resources to increase legal services.
Tuesday, June 10, 2014
A recent issue of the magazine "Experience," published by the Senior Lawyers Division of the American Bar Association has several articles on current and future programs aimed at elder abuse. The Spring 2014 theme is "Courts and the Elderly: Challenges and Solutions." For example, an opening article by Lori Stiegel, senior attorney with the Commission on Law & Aging, reports on several elder abuse initiatives in recent years, including a special civil and criminal docket for elder abuse cases in Alameda County, California; Elder Justice Centers in two Florida counties (Hillsborough and Palm Beach); an In-Home Emergency Protective Order Initiative in Jefferson County, Kentucky; and an Elder Temporary Order of Protection Initiative in Kings County, New York.
Additional articles in the issue include:
- "The Case for Specialized Elder Abuse Protectors," by Page Ulrey, a senior deputy prosecuting attorney in Seattle, Washington.
- "Elder Protection Courts: Judicial Perspective, Holistic Approach," by Judge Patricia Banks (Illinois) and Judges Julie Conger and Joyce M. Cram (California).
- "Courts as Convenors," an interview with Judge Annette Rizzo on the Philadelphia Mortgage Foreclosure Diversion Program, by Pennsylvania Attorneys Edward Madeira and Joseph Sullivan.
- "Elder Abuse and Exploitation: How Courts Can Take Leadership in Developing Effective Responses," by Richard Van Duizend,reporter for the National Probate Court Standards and Brenda Uekert, of the National Center for State Courts.
- "Resources for Fighting Elder Abuse - The Hidden Crime," also by Brenda Uekert of the National Center and Richard Van Duzend.
- "The Illinois Experience: Increasing Access to Justice for the Elderly and Others," by Jeffrey D. Colman, Edq., and Danielle Hirsch, assistant director for the Civil Justice Division of the Administrative Office of the Illinois Courts.
Thursday, June 5, 2014
June 5, 2014
Let’s Talk about Elder Abuse Prevention
By Kathy Greenlee, Assistant Secretary for Aging and Administrator of ACL
Over the course of my service as Assistant Secretary for Aging, one imperative has stood above all others: preventing elder abuse. I talk about it every chance I get, and it is something we all need to talk about. Preventing elder abuse must be part of the national conversation about how we care for older Americans.
That’s why, as our nation prepares to observe World Elder Abuse Awareness Day (WEAAD) on June 15, 2014, I hope you will join me in seeking out opportunities to raise awareness about elder abuse and neglect. Read more.
Update: Voting for the HHS People’s Choice Award Extended to June 13
Click here to cast your vote for “Suicide Prevention: What is your role”—ACL’s Submission for the 2014 HHS “People’s Choice” Award. The deadline for voting has been extended to next Friday, June 13.
Friday, May 30, 2014
A huge theme at the 3rd World Congress on Guardianship was supported decision-making. I was pleased and suprised to find this in my mailbox this morning:
ACL Funding Opportunity: Supported Decision Making
The purpose of this project is to create a training and technical assistance/resource center on supported decision making. The Center will collect and disseminate materials on supported decision-making, including the experiences of people with intellectual and developmental disabilities (I/DD) in making informed decisions with the use of supports. The project will also include a proposal to develop measures to compare outcomes for people with I/DD and older Americans who use supported decision-making methods and practices to exert control and choice in their own lives compared with outcomes for individuals under substituted decision-making arrangements.
Deadline: Electronically submitted applications must be submitted no later than July 2, 2014 at 11:59 p.m.
Click here to download additional information including the application package.
Thursday, May 29, 2014
Law & Society Association's Annual Meeting is always a feast -- with hundreds of presentations and papers, often with cross-discipline themes and presenters. This year's four day program starts today in Minneapolis. On tap are three elder law-themed sessions hosted by Aging, Law & Society. The session on "Rethinking Elder Law's Rules & Norms" will be chaired by Nina Kohn, Syracuse University.
Scheduled paper presentations include:
- Adult Protective Services and Therapeutic Jurisprudence, by Michael Schindler, Bar-Ilan University;
- Age, Gender and Lifetime Discrmination against Working Women, by Susan Bisom-Rapp, Thomas Jefferson School of Law and Malcolm Sargeant, Middlesex University Business School;
- Effective Affective Forecasting in Older Adult Caregiving, by Eve Brank and Lindsey Wylie, University of Nebraska-Lincoln;
- Sexuality & Incapacity, by Alexander Boni-Saenz, Chicago-Kent College of Law;
- Beyond the Law: Legal Consciousness in Older Age Care Contexts, by Sue Westwood, Keele University
Nancy Knauer of Temple Law School is chairing the session on "Accessing and Experiencing Jusice in Older Age." Presentations include:
- From Vienna to Madrid and Beyond, by Israel Doron, University of Haifa;
- Lessons from Detroit: Retiree Benefits in the Real World, by Susan Cancelosi, Wayne State University Law School;
- Older Persons Use of the European Court of Human Rights, by Benny Spanier, Haifa University;
- Crossing Borders and Barriers: Assessing Older Adults' Access to Legal Advice in the Search for Effective Justice, by Katherine Pearson, Penn State University Dickinson School of Law, Joseph Duffy, Queens University Belfast, and Subhajit Basu, University of Leeds
A workshop on "Ethics of Care and Support in Law and Aging," to be chared by Sue Westwood, Keele University, includes:
- Aging with a Plan: What You Should Consider in Middle Age to Plan for Caregiving and Your Own Old Age, by Sharona Hoffman, Case Western Reserve University;
- An Ethic of Care Critique of the UK Care Bill/Act, by Sarah Webber, University of Bristol;
- Both Property and Pauper: Slaver, Old Age, and the Inverted Logic of Capitalist Exchange, by Alix Lerner, Princeton University;
- Responding to Financial Vulnerability: Advances in Gerotchnology as an Alternative to the Substitute Decision Making Model, by Margaret Hall, Thompson Rivers University and Margaret Easton, Simon Fraser University
An international cast of characters, yes? More soon, with details from the front.
Friday, May 23, 2014
John Marshall Law School and Roosevelt University, both in Chicago, and East China University of Political Science and Law in Shanghai, are jointly sponsoring an International Elder Law and Policy Conference in Chicago on July 10-11.
Keynote speakers include Professor Israel Doron of the University of Haifa in Israel and Dr. Ellinoir Flynn and Professor Gerard Quinn, both from National Unviersity of Ireland, Galway School of Law.
Scheduled panel topics include:
- Dignity and Rights of the Elderly
- Elimination of Age Discrimination
- Caregivers and Surrogate Decision Makers
- Social Security, Pensions and Other Retirement Financing Approaches
- Prevention of Elder Abuse
- Access to Justice
Here's the link to the Registration website.
Thursday, May 22, 2014
One of the speakers for the World Congress on Adult Guardianships, taking place next week in the Washington D.C. area, is visiting this week at Penn State Dickinson School of Law.
Prof. Dr. Dagmar Brosey, from Cologne University of Applied Sciences, is part of a two-person panel titled "Adult Guardianship Decision-Making Process: Psychomorphological and Legal Perspectives." Professor Brosey, a lawyer, teaches courses on law for social work students, including advanced degree students. During her visit, we've been talking about similarities and differences in approaches between Germany and the U.S. to protection and advocacy for adults, including older adults.
For example, I've learned that Germany has moved away from "guardianships" (as Americans often describe a court-appointed system of substitute decision-makers) to a system which does not require a finding of "incapacity" in order to permit appointment of a "Betreuer," a German word which translates into English as "custodian." A literal translation by itself is not quite adequate, as Dr. Brosey explains a German "Betreuer" also functions as a type of "legal caregiver." The Betreuer therefore has great responsibilities to ascertain the capabilities, desires and interests of the principal, rather than simply make decisions "for" the principal. Professor Brosey also emphasizes that the modern German approach should be "person-centered," and involves recognition of "necessity" to determine the scope of the appointed person's authority to make decisions.
A deeper understanding of the 22-year old German system will help the thinking of Americans and others, who are often more familiar with the historic view on how guardianships should function. The contrast in approaches is central to the debates that are likely to take place at the Congress next week. Even in Germany, with its modern approach, there is discussion underway about whether the Betreuer's role should be one of "supported decision-making" or "shared-decision-making," or "substituted-decision making."
Professor Brosey's co-presenter, Prosper Ayawei, from the Bayelsa State Government of Nigeria, has a background in psychology. Thus, his emphasis is on a "psychomorphological" analysis. The contrast between their two presentations should be very illuminating. Their breakout session is scheduled for Thursday, May 29 at 1:45 p.m.
For more on the packed schedule for this important conference, here's a link to the program.
Monday, May 19, 2014
Casey Kasem, Mickey Rooney, Brooke Astor. High profile, recent examples of tough times for aging individuals. For lawyers, their histories demonstrate the challenges of planning. Lawyers juggle tough questions about how to handle waning capacity and respect an individual's preferences, while recognizing the probable need for safety and quality care. Add to this the reality that family members are often involved directly and indirectly. We hope everyone agrees and is well intentioned, but, there are no guarantees.
Texas Elder Law Attorney Renee Lovelace has a very good article from a few years ago, using another high profile example of the challenges of planning. She writes about economist and statistician Mollie Orshansky who passed away in 2006 at the age of 91. Orshanky's name has been in the news again recently because of renewed discussion of the "poverty thresholds" she articulated in the 1960s and which are still used (probably irrationally) as a measurement tool for public benefits.
In her later years, Orshansky was at the center of a dispute about care that might be in her "best interest" but that also might be inconsistent with her expressed wishes. In "Working with Elder Clients Who Refuse Help," (Texas Bar Journal, February 2008, available as downloadable PDF from archives), Renee writes:
"But when Ms. Orshansky needed assistance, she rejected help from family. She was hospitalized, and the court, critical of the family for not preventing her decline, appointed a nonfamily guardian. The resulting saga included an interstate guardianship battle, allegations of family kidnapping, a riveting series of Washington Post articles and Senate Committee hearings. While Mollie's story may be movie-worthy, it is alarming to realize that she did everything that we suggest clients do to plan ahead — and her case still had a disastrous result."
Lovelace identifies several key points to keep in mind when helping clients to plan ahead, including the importance of "the talk" with family members. She discusses the possibility of building in monitoring options, while also recognizing the potential for even the best intentioned caretaker or agent to make mistakes. She talks realistically about the need for balance between "people, paper and money."
What are other techniques and approaches -- more than just documents and legal advice -- that seasoned lawyers use to avoid these kinds of disputes? Feel free to add your "comments."
Thursday, May 15, 2014
Guardianship has long been the primary method of handling decision making for individuals with intellectual and mental health disabilities. But is it the best method? At this Advocacy in Action webinar held by the Shriver Center on May 7, 2014, three experts in the field discussed guardianship and its alternatives. Topics included the Convention on the Rights of Persons with Disabilities and the theoretical underpinnings of the movement toward preserving the autonomy of individuals with intellectual and mental health disabilities. The Protection and Advocacy system’s involvement was also discussed and a supported decision making pilot project in Massachusetts was featured.
Wednesday, May 14, 2014
It occurs to me that what I'm about to write here is a mini-review of a mini-book. Slightly complicating this little task is the fact that I count both authors as friends and mentors.
The latest edition of Elder Law in a Nutshell by Professors Lawrence Frolik (University of Pittsburgh) and Richard Kaplan (University of Illinois) arrived on my desk earlier this month. (As Becky might remind us, both are definitely Elder Law's "rock stars.") And as with fine wine, this book, now its 6th edition, becomes more valuable with age. This is true even though achieving the right balance of simplicity and detail cannot be an easy task for authors in the intentionally brief "Nutshell" series. Presented in the book are introductions to the following core topics:
- Ethical Considerations in Dealing with Older Clients
- Health Care Decision Making
- Medicare and Medigap
- Long-Term Care Insurance
- Nursing Homes, Board and Care Homes, and Assisted Living Facilities
- Housing Alternatives & Options (including Reverse Mortgages)
- Alternatives to Guardianship (including Powers of Attorneys, Joint Accounts and Revocable Trusts)
- Social Security Benefits
- Supplemental Security Income
- Veterans' Benefits
- Pension Plans
- Age Discrimination in Employment
- Elder Abuse and Neglect
The authors describe their anticipated audience, including "lawyers and law students needing an overview of some particular subject, social workers, certain medical personnel, gerontologists, retirement planners and the like." Curiously, they don't mention potential clients, including family members of older persons. I suspect the book can and does assist prospective clients in thinking about when and why an "elder law specialist" would be an appropriate choice for consultation. This book is a very good starting place.
What's missing from the overview? Not a lot, although I find it interesting that despite solid coverage of the basics of Medicaid, and even though it is unrealistic to expect exhaustive coverage in a mini-book, the authors do not hint at the bread and butter of many elder law specialists, i.e., Medicaid Planning. Thus, there's little mention of some of the more cutting edge (and therefore potentially controversial) planning techniques used to create Medicaid eligibility for an individual's long-term care while also preserving assets that otherwise would have to be spent down.
Modern approaches, depending on the state, may range from the simple, such as permitted use of assets to purchase a better replacement auto, to more complex planning, as in states that permit purchase of spousal annuities or use of promissory notes, allow modest half-a-loaf gifting, or recognize spousal refusal. Even though the federal Deficit Reduction Act of 2005 succeeded in restricting assets transfers to non-spouse family members, families, especially if there is a community spouse, may still have viable options. Without appropriate planning the community spouse, particularly a younger spouse, may be in a tough spot if forced to spend down to the "maximum" permitted to be retained, currently less than $120,000 (in, for example, Pennsylvania). See, for example, a thoughtful discussion of planning options, written by Elder Law practitioners Julian Gray and Frank Petrich.
Perhaps the Nutshell omission is a reflection of the unease some who teach Elder Law may feel about the public impact of private Medicaid planning?
May 14, 2014 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)
Friday, May 9, 2014
The April 2014 issue of the American Bar Association's Bifocal publication is now available. Current articles include:
- Will Your Health Care Advance Directive Be There When You Need It?
- A Guardian's Health Care Decision-Making Authority: Statutory Restrictions
- Palm Beach Guardianship Monitoring Program Offers Innovative Model
- Attorneys Representing Veterans: Opportunities and Challenges
- Don't Let Congress Go Another Year Without Funding the Elder Justice Act
By the way, while most Bifocal articles are written by practicing attorneys, American Univesity Washington College of Law student, Karna Sandler, is the author of the article on how state laws may affect a guardian's health care authority. Karna's an intern at the Commission on Law and Aging. Way to go, Karna!
In addtion, the issue provides details about AARP Foundation Scholarships to assist individuals in attending the 2014 National Aging and Law Conference to be held in Washington D.C. on October 16-17. Deadline for the scholarship applications is June 15, 2014.
Friday, April 25, 2014
Chicago-Kent Law Professor Alexander A. Boni-Saenz shared a copy of his law review article, "Personal Delegations," published recently in the Brooklyn Law Review. Here is an intriguing excerpt from the introduction, minus the footnotes:
"Donald and Gloria Luster married on October 5, 1963 and had four children. Donald retired in 2005, and it was about this time when Jeannine Childree, his youngest daughter and a registered nurse, noticed that he was exhibiting signs of dementia. After a number of consultations with doctors, Donald was officially diagnosed with Alzheimer's disease in 2009 due to his memory loss, disorientation, and other cognitive impairments. Based on these medical evaluations, a Connecticut probate court declared Donald incapable of handling his personal or financial affairs and appointed Jeannine and his other daughter, Jennifer Dearborn, as his guardians. Shortly thereafter, Gloria filed for a legal separation from Donald, and in response, the daughters counterclaimed for divorce, suspecting their mother of financial and emotional abuse. Should the guardian-daughters have the authority to sue for divorce on behalf of their father?"
The author then offers a second fact pattern, involving a man serving as agent for his incapacitated brother under a power of attorney, asking whether the agent should have "authority to execute a will on his brother's behalf," where only a small percentage would be left to the brother's biological child.
Professor Boni-Saenz suggests that the numbers of people lacking "decisional capacitiy" are in the millions and "will only increase with an aging population." This likelihood "presents many difficult questions" while also creating "an opportunity to rethink and reevaluate how the law treats people with cognitive impairments." He then introduces his "personal delegation" thesis, in support of giving greater deference to agents in certain circumstances, permitting them to make binding decisions that might otherwise be questioned under what he outlines as a bias or presumption in current law:
"The central claim of this article is that in the case of decisional incapacity, decisions that implicate fundamental human capabilities should generally be delegable. Thus, it rejects the rationale employed by courts to justify nondelegation--that these types of decisions are too personal to be made by another. This line of reasoning confuses nondelegation for nondecision, and it only serves to privilege a status quo outcome over the expression of fundamental human capabilities by individuals with cognitive impairments."
The full article is easily available on SSRN and on Professor Boni-Saenz' faculty web page, linked above.
April 25, 2014 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, April 24, 2014
At least 40 U.S. veterans died waiting for appointments at the Phoenix Veterans Affairs Health Care system, many of whom were placed on a secret waiting list. The secret list was part of an elaborate scheme designed by Veterans Affairs managers in Phoenix who were trying to hide that 1,400 to 1,600 sick veterans were forced to wait months to see a doctor, according to a recently retired top VA doctor and several high-level sources. For six months, CNN has been reporting on extended delays in health care appointments suffered by veterans across the country and who died while waiting for appointments and care. But the new revelations about the Phoenix VA are perhaps the most disturbing and striking to come to light thus far. Internal e-mails obtained by CNN show that top management at the VA hospital in Arizona knew about the practice and even defended it.
Monday, April 21, 2014
Here's a sampling of recently published articles from the Social Science Research Network (SSRN) falling loosely under the heading of "Elder Law" as well as other classifications:
From our Law Prof Blogging colleague Gerry Beyer, "Who Said Learning Trusts & Estates Can't Be Fun?" The abstract alone is inspiring for those of us who teach in this field:
"From even before their first day of law school, Texas Tech University School of Law students have the opportunity to appreciate the importance of the estate planning area and to understand that it can be both an enjoyable and rewarding area of law in which to practice. During orientation, which takes place the week before classes start, new students participate in full-day programs centered on a particular area of practice either of their own choosing or assigned by the administration. For the 2013 entering class, I was in charge of two full-day Estate Planning Tracks with a total of aproximately thirty-five entering students.
As their legal education continues, students have additional exposure, some mandatory and some optional, to estate planning topics. In my first year required Property course, I spend several days reviewing the basic principles of intestate succession and wills. Texas Tech then requires all students to complete a four-credit introductory course entitled Wills and Trusts as a condition of graduation during their second or third year. Students desiring a more sophisticated treatment may take courses such as Estate Planning, Texas Estate Administration, Guardianship, Estate and Gift Tax, Elder Law, and Marital Property. Students may also compete for a coveted position as an editor for the Estate Planning and Community Property Law Journal that Texas Tech publishes.
This Article reveals my basic teaching philosophy and the general pedagogical techniques I employ to make Trusts and Estates topics both fun and relevant. I will then share with you the specific tools I use when teaching the introductory course as well as the advanced courses such as Estate Planning and Texas Estate Administration. It is my hope that you may be able to gain insight from my approach to enhance your own teaching and the experience you provide to your students."
From Northern Illinois Law Librarian Sharon Nelson, a thoughtful bibliography of articles drawing lines between mistreatment of animals and the potential for family member abuse or neglect. I have to say that I never thought about this connection before, but it does ring true for a possibly related phenomenon I observed when we were interviewing caregivers for an aging family member. If candidates were nervous around our completely benign pooches, they rarely coped well with the not-so-benign family member. Nelson sumarizes her article, titled "The Connection Between Animal Abuse and Family Violence:"
"This Selected Annotated Bibliography assembles legal and social literature that examines the link between domestic violence and animal abuse. Drawing from an ever-growing body of written works dedicated to the issue, the Bibliography presents the works that are most informative and useful to the legal community. These include case studies, current and proposed legislation, and social services guides that address the occurrence of and response to the animal cruelty-family violence correlation. In doing so, the Bibliography creates a resource that will prove helpful to a variety of legal practitioners, law makers, and professionals within the criminal justice system, and will serve as a tool to promote further understanding of the patterns of abuse that often concurrently victimize both humans and animals."
And from Canadian J.D. candidate Mathew Ponsford, an article about implications of advance care decision-making issues and legislation in Ottowa, "A Discussion of Conflict Resolution Processes Used in End-of-Life Care Disputes Between Families and Healthcare Providers in Canada." The abstract begins:
"Conflict at the end-of-life, particularly between families and healthcare providers, involves many complex factors: differing opinions surrounding a patient’s prognosis, cultural differences, moral values and religious beliefs, associated costs, internal family dynamics, and of course, legal ramifications. Bill-52 (2013): An Act Respecting End-of-Life Care, introduced in Québec's National Assembly, will have far-reaching implications for healthcare decision-making for families, healthcare providers, religious groups, and others. Here, Bill-52 is used as the backdrop to examining the often neglected stories of disputes arising between families and healthcare providers, and the communication strategies, negotiation and mediation processes which result amidst an often stressful, costly, and time-consuming ordeal. Numerous conflict resolution processes are discussed, but the Consent and Capacity Board, regulated through Ontario's Health Care Consent Act (HCCA), is the primary focus. The importance of empathy and cultural understanding is also analyzed, as well as the challenges of cross-cultural conflict, including sensitivities toward Canada's First Nations peoples."
Friday, April 18, 2014
My various search routines regularly alert me to cases involving older adults. I was reading an unpublished Washington Court of Appeals decision dated February 2014 in State v. Knopp, which at first seemed fairly straight-forward, if sad. A daughter was appealling her conviction for first degree theft from her disabled mother, theft that began through use of a Power of Attorney. The daughter contended the prosecutor misstated the law during closing argument and that her trial counsel was ineffective. She argued -- unsuccessfully -- that she was entitled to make a "claim of title" defense based on the POA. The conviction was affirmed.
On closer reading, what seemed more remarkable than the conviction was the history of opportunities and unsuccessful efforts to stop the daughter's theft. The broadly worded POA was executed by the mother in 2006 when everyone was healthy. The problems did not begin until the mother "suffered an injury in December 2008" and was placed in a rehabilitation facility. The facility recommended to the daughter that she apply for Medicaid for her mother, but the daughter later admitted she did not complete the application because she realized "most of [her mother's] income would be required to pay for her medical needs." Instead she took her mother out of the rehab facility "against medical advice" and moved her to an assisted living facility.
It seems clear from reading the opinion that from as early as April 2009, there were concerns about the daughter's role. For reasons not fully explained in the criminal case opinion, the mother was appointed a "guardian ad litem;" an "evaluator" reported the mother was suffering from dementia and lacked capacity to handle her own financial affairs; and in June 2009, the GAL obtained a "court order prohibiting [the daughter] from accessing [her mother's] accounts.
Nonetheless, the daughter apparently continued to help herself to her mother's accounts, withdrawing "several thousand dollars" between June 19 and August 3, 2009. Apparently "the bank failed to process" the court order correctly, thus allowing the continued withdrawals. And even as late as October 2009, the daughter was successful in redirecting her mother's pension and social security checks to her own accounts by direct deposit, thus bypassing the court order.
The case is an example of the challenges of preventing financial abuse of elderly or disabled persons by a persistent individual; however, it also points to the importance of functional systems of effective checks and balances once it is clear that abuse is occuring. Not easy -- not fun -- and, again, sad.
Thursday, April 17, 2014
An arbitral award in March 2014 by Financial Industry Regulatory Authority (FINRA) ordered Signator Investors, Inc., a firm aligned with the John Hancock Financial Network, to pay an older couple and their elderly mother's estate $1.2 million for losses arising from failed retirement investments inappropriately marketed to them by a Signator broker. The award to the claimants included "compensatory" damages plus interest, and ordered rescission of all the claimant's investments in Colonial Tidewater Realty Partners. The award also granted Signator's cross-claim against its former broker, James Robert Glover, for breach of contract, fraud and negligence as potential indemnification on the damage award.
As is true with most arbitration awards, the ruling on Docket No. 13-00579 (available via search at the FINRA website) is "bare bones," providing little in the way of explanation about which legal theories support the outcome. A detailed explanation is unnecessary for FINRA arbitration rulings, which cannot be appealed.
The claimants, a husband and wife (both 70+) and the husband's mother (who died in 2012 at the age of 103), reportedly invested their entire retirement savings through Glover, who put them into securities not held or offered by Glover's brokerage company. This practice is sometimes described as "selling away." Signator's defense that Glover's actions were therefore outside the scope of his authority with their company and not subject to their control or responsibility to supervise was implicitly rejected by the FINRA arbitrators. News reports indicate some 40 other pending complaints connected to Glover's actions. Glover was sanctioned personally by FINRA in March 2013.
FINRA, created in 2007, is the successor to NASD, the National Association of Securities Dealers, the former enforcement operation for member brokerage firms and exchange markets regulated by the Securities and Exchange Commission. A single arbitral award of $1+ million through FINRA is interesting by itself. For example, for the entire year of 2013, FINRA ordered a total of $9.5 million in restitution to harmed investors.
But what caught my attention was the additional award of $453,970 in attorneys' fees for the claimants against Signator, "pursuant to California elder abuse statutes." The amount of the fees appears to be roughly 40% of the damage award. Most securities claims are handled by attorneys on a contingency fee arrangement and a fee of 40% of the award is not unusual in this challenging field. Thus, even a successful claimant before FINRA may not be made whole, absent a contractual or statutory basis to claim attorneys' fees. So the award of compensatory damages and interest, plus attorneys fees' is significant.
Unlike many states, California has a comprehensive provision for attorneys' fees connected to civil actions for abuse of elderly or dependent adults, at Cal. Welfare & Institutions Code Sections 15657-15657.8, including Section 15657.5 providing for attorneys' fees where it is proven by a preponderance of the evidence that a defendant is liable for "financial abuse."
Tuesday, April 15, 2014
Congrats to dear friend, co-blogger and webmom Kim Dayton who spearheaded a recently published book, Comparative Perspectives on Adult Guardianship. Published by Carolina Academic Press, the book is available for purchase for $53 (currently at 10% discount is available for internet orders). The website describes the book as
[A] compilation of chapter-essays from some of the world’s leading authorities on adult guardianship law. The essays cover a wide range of topics from both theoretical and practical perspectives. Part I of the book introduces some of the basic concepts that transcend the national guardianship system, approaching these concepts from a comparative perspective. Part II’s essays provide comprehensive information on guardianship systems around the world. Essays in Part III outline an ambitious agenda for reforming adult guardianship regimes. The book is a must read for those concerned with the role of national and international law in defining and expanding the rights of older persons and persons with disabilities who are at risk of being placed under guardianship due to cognitive or other disabilities.
The book has 23 chapters that cover a range of topics and a selected bibliography that includes selected governmental reports, conventions, articles and books. Authors include a number from the United States as well as Japan, China, Canada, Australia, Korea, The Netherlands, The U.K, Israel, England, Sweden, and Turkey.
The introduction to the book, authored by Jochen Exler-Konig (Germany), chair of the International Guardianship Network, describes the importance of this book:
Modern societies around the globe are confronting an increasing incidence of disability associated with an aging population, and growing acknowledgment of mental health issues, developmental disabilities, and the consequences of brain injuries. Adult guardianship is no longer merely a local concern. It has been suggested that more than 1% of the adult population 18 years and older in industrialized nations is under formal legal guardianship...The number of persons in need of guardianship, and guardianship caseloads, can be expected to grow exponentially in the next few decades. This reality raises a number of questions: How can we address the needs of persons who need protection, while preserving their autonomy and personal dignity? How can adult guardianship systems accommodate these competing concerns?
Complimentary copies are available for professors by requesting an exam copy. Kim Dayton ROCKS!!!
Sunday, April 13, 2014
ElderLawGuy Jeff Marshall succinctly discusses four critical issues that individuals and families should consider when using Powers of Attorney in estate and incapacity planning. Here's the link to Jeff's "Powers of Attorney: Things You Need to Know."
Saturday, April 12, 2014
I think it is safe to say that in more than twenty years of working in law and aging, the last twelve months have been the "busiest" I can remember on the topic of financial abuse of older persons.
As examples, in just the last six months, in addition to international projects on safeguarding policies, I have been invited to assist a team of attorneys on a series of well-attended CLE presentations on "powers of attorney," testify at the invitation of the Pennsylvania House of Representatives on the topic of financial abuse and exploitation, and serve on an Abuse and Neglect Committee for the Pennsylvania Supreme Court's Elder Law Task Force.
Certainly the concerns about financial abuse of older adults are not new. However, a steady drumbeat of local news reports about financial abuse, plus the demographics of aging populations, has drawn increased attention of state legislators, courts, and practitioners. In many jurisdictions, the focus is no longer just on "whether" but "how" to address the problem of exploitation of older people. In addition, the high profile cases involving philanthropist Brooke Astor and actor Mickey Rooney, reportedly at the hands of family members and others, have made it clear that no level of society is immune from the potential for abuse.
Along this line, in Pennsylvania a series of events have helped to shape the current debate on abuse of older persons or other "vulnerable" adults, and thus has generated proposed legislation. Perhaps Pennsylvania's history will resonate with those addressing similar concerns in other jurisdictions:
- In 2010, the Pennsylvania Supreme Court addressed the question of whether a state agency that was responsible for administering a specific retirement fund was entitled to good faith immunity under state law when taking action in reliance on a purported Power of Attorney (POA) presented by the spouse as agent of his employee/wife. In Vine v. Commonwealth of Pennsylvania, a majority of the Court concluded that where the employee's "X" on the POA was improperly obtained by her husband while she was incapacitated after a life threatening car accident, the POA was invalid -- in other words "void" -- and therefore the "immunity" conferred by the state's POA law was not available to the agency. (There were strong dissents to the majority's ruling,). The decision had implications for POAs generally, and certainly POAs presented by family members or others to banks on behalf of older people who needed or desired agents to handle financial matters. In Pennsylvania, financial institutions began questioning POAs, seeking reassurances that the document in question was valid. The commercial viability of POAs was thus at risk. This became known as the "Vine" problem in Pennsylvania.
- Attorneys representing various stakeholders, including families, financial institutions and district attorneys, began to weigh-in with proposed "fixes" for the Vine problem, while sometimes also raising other concerns related to financial abuse of older or vulnerable adults.
- The Uniform Law Commission, after years of hard work by academics, judges, attorneys and other interested parties nationwide, issued a proposed "Uniform Power of Attorney Act" (UPOAA) in 2006. Central to the proposed legislation were safeguards intended to better protect the incapacitated principal, as well as address concerns by agents and third parties. By 2014, fourteen states have enacted revisions of POA laws, drawing upon the Uniform Act for guidance. As with other uniform law movements, the Commission's work on UPOAA recognized the need for accepted standards for instruments used in national commerce, instruments that frequently cross state borders.
- In Pennsylvania, the UPOAA has influenced two bills, House Bill 1429 (introduced by Representative Keller) and Senate Bill 620 (introduced by Senator Greenleaf). Each bill passed in their respective houses. (This single sentence truncates several years of history about the negotiations, all set against the background of need for a "Vine" fix.) Both bills address the concerns of banks and other third-parties who want reassurances that they may rely in good faith on POAs that appear on their face to be valid.
- Following legislative hearings that included testimony from individuals representing banks, legal service agencies, and protective service agencies, other legislative proposals emerged. These pending bills include: SB 621 (Senator Greenleaf) with significant, additional updates to POA laws, as well as other parts of the probate code; HB 2014 (Representative Hennessey) proposing significant revisions of the state's Older Adult Protective Services Act; and HB 2057 (Representative White) amending the Older Adult Protective Services Act to create a private right of action, including attorneys fees and punitive damages, for victims of exploitation against the abusers.
In Pennsylvania, which has a year-round legislature, there tend to be two windows for major action on pending legislation, including the "budget" cycle that ends on July 1 and again during autumn months. In following the various bills, it seems to me likely that HB 1429 will be the vehicle for the "Vine" fix. There is also the possibility that Senator Greenleaf's second bill, SB 621, and other tweaks will be passed, either as standalone legislation or as amendments to HB 1429 or other bills. Thus, for interested persons and stakeholders, the weeks leading up to July 1 will mean keeping a watchful eye (and alert ear) for last minute changes.
All of the stakeholders are well-intentioned and concerned about the best interests of older adults who because of frailty often have no choice but to rely on agents or others acting in a fiduciary capacity.
At the same time, as I've watched the events of the last four years in Pennsylvania come to a peak the last six months, I've observed a complicating factor. Those who are most likely to see violations of POAs, including district attorneys, protective service agencies and the courts, probably do not see the larger volume of commercial transactions that happen routinely and appropriately without the added cost of enhanced accounting or oversight. By comparison, professional advisors who routinely facilitate families in estate planning, including transactional attorneys, tend not to see the abusers. Finally, financial institutions, who probably feel caught in the middle, and who are often on the front lines of witnessing potential abuse, seek the ability to report suspected abuse without incurring liability, while also avoiding the costs of becoming "mandatory" reporters (a topic addressed in some proposed amendments of the Older Adult Protective Services Act). Thus it is challenging to balance the viewpoints of different groups in crafting effective (including cost effective) solutions.
There is also the potential that by focusing primarily on POAs, which in Pennsylvania is driven by a very real need for a "Vine" fix, we may be missing or minimizing other significant instances of abuse via joint accounts, questionably "signed" checks, or misuse of bank cards and credit cards. The amounts of money per transaction may be smaller in those instances, but depending on the victim's resources, the impact may be even more significant.
Ironically, as the population of older adults increases, state funding, including Pennsylvania funding, is under constant threat, thus weakening Protective Services, Legal Services and the courts, all entities that can help victims, and that have expertise in investigation and intervention where abuse is indicated.
Wednesday, April 9, 2014
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