Thursday, April 19, 2018

Sentate Special Committee on Aging Hearing on Guardianships

Yesterday, the Senate Special Committee on Aging held a hearing on guardians exploiting individuals under guardianship. The hearing, "Abuse of Power: Exploitation of Older Americans by Guardians and Others They Trust.”  offered 4 witnesses, including elder law prof, and reporter of the new Uniform Guardianship, Conservatorship & Other Protective Arrangements Act, Associate Dean Nina Kohn. The committee chair and ranking member opened the hearing with their individual statements.  Their statements, along with the witnesses' testimonies, are downloadable as pdfs. There is also a video of the hearing, available here.

April 19, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink

Tuesday, April 17, 2018

Access to Justice for Older Adults: Is the Glass Half Empty or Half Full?

Testimony before PA House Hearing on Access to Justice 4.11.18TThe Pennsylvania House Committee on Aging and Older Adult Services  invited representatives of legal aid organizations to speak on April 11, 2018.  As I listened to attorneys from SeniorLAW Center, Community Legal Services of Philadelphia, MidPenn Legal Services and the Deputy Chief Counsel and Legal Assistance Developer for Pennsylvania's Department of Aging, it occurred to me that many of the client histories, including my own school's clinic story, were about positive outcomes in representing individuals facing potentially tragic futures, including eviction from the only housing they know, rejection for Medical Assistance, or no option but to rely on the unkindness of strangers. 

We were speaking, understandably, about the good that trained lawyers and lawyers-in-training (students in law school clinical programs) can do.  For example, Pam Walz, director of the Aging and Disabilities Unit at Community Legal Services (CLS) in Philadelphia told the story of a recent client, "Mr. D," who at age 70 was living alone in a single room in a rooming house.  He was found unconscious, leading to hospitalization:

He had suffered a stroke and at the hospital he was also diagnosed with throat cancer.  A treatment plan was created, including radiation therapy, and he had to have a feeding tube placed.  The hospital discharged him to a nursing facility because they did not think he could care for himself alone in a rooming house. . . .

 

Mr. D received rehabilitation for about two weeks at the nursing facility but the facility failed to coordinate with his oncologist or to provide him with transportation for his first radiation treatment.  Worse yet, the nursing facility told Mr. D that they were discharging him because his Medicare coverage had ended, despite the fact that he continued to need nursing facility care and is eligible to have his continued stay paid by Medicaid [under federal and state law]. . . .  The nursing facility had also failed to provide a legally required written notice of discharge, explaining Mr. D's rights to appeal the discharge to the Department of Human Services. . . . [S]ending Mr. D back to his rooming house in his condition would not be a safe discharge.

CLS attorneys stepped in and filed the appropriate papers to get the discharge stopped until the legally mandated "safe" discharge plan could be determined.  They recognized that Mr. D was further in jeopardy because he needed assistance in Spanish, a requirement safeguarded by Title VI of the federal Civil Rights Act.  

CLS attorneys will continue to represent him.  The message in common for the speakers is about the better outcomes possible when trained experts step in.  On the one hand it is a success story and a success story heard across the nation at the hands of both legal aid attorneys and private attorneys who are skilled in the array of state and federal laws intended to protect older adults and provide greater dignity in circumstances of need, including ill health or extreme risk.  

I realized that with our testimony, including my testimony about students at Penn State's Dickinson Law's Community Law Center, who were able to prevent the wrongful eviction of an older man, we were painting a picture of a glass half full. But a half-full glass is also half-empty.  As I testified, the histories also made me a bit sad, because I know how many calls for help go unanswered, because there aren't enough free or low cost services for those in need. 

As one woman explained to me in seeking a lawyer, "I had a plan.  I planned to work until I was 70 and I made it.  I planned my savings to last until I was 80 and I made it.  Unfortunately, now I'm 85 and my savings weren't enough, Social Security isn't enough, and I don't know what to do. . . . I think I need help with my creditors, but I can't pay an attorney to help me."

I testified that law schools with clinical programs and legal aid organizations are willing to do more to represent the underrepresented, but to do so each such organization needs ines of funding dedicated to older adult legal services.  In more rural communities, the need may be especially serious.  It's not that the glass is half full or half empty, it's that the glass is probably just 20% full, as so many go without sound legal advice until desperation sets in, and even then only a small number get help in time. 

In the photo here, after testifying before the House committee, we're smiling because key members were listening and asking important questions. PA House of Representatives Hearing on Access to Justice for Older Adults 4.11.18
The tall man in the center, Chairman Tim Hennessey, has long served in a leadership role for senior services in Pennsylvania.  Around him, from left to right, me, Deborah Hargett-Robinson (Pa Department of Aging), Wendy Bookler (SeniorLAW Center), Karen Buck (Exec. Dir. SeniorLAW Center), Pam Walz (CLS) and Marisa Halm (Dickinson Law 1L student who will intern with SeniorLAW in summer 2018).

I'm often bouyed by the commitment of so many students to public interest law. Students who plan on private practice also, increasingly, recognize commitments to public service with their own pro-bono pledges.  Private attorneys who make a commitment of a percentage of their time to pro-bono services are part of the solution.

Justice Sonia Sotomayor, before she made it to the bench of the highest court in the U.S., reminded lawyers of our duty to "represent the underrepresented in our society" and to "ensure that justice exists for all, both legal and economic justice."  A reminder in these challenging times of our ability and obligation to do good.  

For more, here's a link to my written testimony.

My special thanks to Karen Buck for her leadership role on the future of legal services in Pennsylvania.  Here is the link to SeniorLAW Executive Director Buck's testimony;  Karen opened the hearing.

April 17, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (1)

Wednesday, April 11, 2018

Mark Your Calendars: Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation

Mark your calendars for April 18, 2018 at 2 p.m. edt for a free webinar from the National Center on Law & Elder Rights, Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation. Here is the description that I received in the email announcing the webinar:

In 2016, Medicare began reimbursing physicians for counseling beneficiaries about advance-care planning. At around the same time, Health Affairs released a study finding that only one-third of older adults have completed any health care planning documents. For attorneys counseling older adults, completing advance planning documents is just one part of care planning. Drafting these documents in a way that reduces the risk of abuse and exploitation is a critical component of providing good counsel.

This webcast will discuss ways to work with clients to select lower-risk agents, tools to document and communicate health care values, and tips for drafting documents to reduce the risk of exploitation.

To register, click here.

April 11, 2018 in Advance Directives/End-of-Life, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, April 8, 2018

As Individuals with Developmental Disabilities Live Longer, They May Outlive Caregiver Parents

During Dickinson Law's recent program on Dementia Diagnosis and the Law, one of our panelists, Elder Law practitioner Sally Schoffstall raised an issue planning professionals are seeing more often, families who are concerned about the long-range needs of children with developmental disabilities. I know that over the years I have often had law students whose interest in disability and estate planning law began with a brother or sister with special needs, and they are thinking about their own future roles in helping the family plan. 

The good news is that better early health care often means an extended life for disabled children, but that very fact raises the probabilities on living longer than the people who have been primary caregivers, especially their parents. As we heard from medical professionals at our conference, individuals with Down Syndrome, for example, are now less likely to succumb to physical impairments such as developmental  heart problems, but still face a significant risk of early onset of dementias, with an estimated 30 percent of those in their 50s already experiencing symptoms similar to Alzheimer's Disease.  

On May 21-22, a St. Louis-based nonprofit organization, Association on Aging with Developmental Disabilities (AADD) will hold its 28th annual conference.  The conference draws an audience of professionals from a wide range, including social workers, nurses and other service providers.  As with most people, individuals with disabilities want to "age in place," and that takes extra planning to manage financial assets.  Pamela Merkle, executive director for AADD explains:

"Sessions will focus on giving them the tools they need to successfully support people with developmental disabilities who are aging,” says Merkle. 

 

She explains that many of the issues faced by older persons with developmental disabilities mirror those of aging individuals in general, such as isolation, depression and how to handle retirement. “Like most people, they want to ‘age in place,’ not spend their golden years in a nursing home. Given that living within the community is more cost-effective, it’s important to both the seniors and our communities that there be more public programs to support that choice,” she continues. . . . 

 

For individuals who are 50 or older, AADD offers retirement services. While some of the participants have held community-based jobs, others spent decades in sheltered workshops. As with many members of the general population, they often tend to define themselves through the jobs they held for so many years. “So we focus on identity: ‘I’m a volunteer” or “I’m active in my church,’” explains Merkle. “If you don’t have something in place to fill the void after retirement and to maintain the skills you’ve developed, you’ll retire to your couch. You won’t be an active part of the community, and will most likely spend your “golden years” alone.”

For more, see this commentary from the Special Needs Alliance, and look for related links.  My thanks to Sally for providing links to this conference information! 

April 8, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Programs/CLEs | Permalink | Comments (0)

Monday, April 2, 2018

Supported Decision-Making as an Alternative to Adult Guardianship

Dickinson Law Presentation and Panel Discussing Guardianship Oversight and the Courts 3.29.18During the Continuing Judicial Education program on "Dementia Diagnosis and the Law" at Dickinson Law on March 29, I offered a list of developments potentially affecting the future of guardianships.  One item on my list could have been a stand-alone session in and of itself -- the concept of supported decision-making.  I promised the audience I would post some additional materials on the topic here.  

For background, as we discussed with the judges, under most states' laws governing guardianships, courts are obligated to search for the least restrictive alternative to a plenary guardianship.  Courts sometimes struggle with this issue, especially for older adults, if the incapacitating issue proves to be any of the forms of progressive neurocognitive disorders associated with dementia. If a judge makes a finding of incapacity, and if there is an appropriate, trustworthy guardian available, the judge may feel that it is better to leave it up to the appointed individual to strike the right balance between protection and autonomy on individual issues such as choice of housing or daily activities.  The court might find that granting full powers, but trusting the guardian to exercise the powers appropriately, is better than requiring the parties to return to the court for a series of orders, as the incapacity advances, conferring new directions for the guardian to follow. 

During the conference we confronted the issues driving the recent calls for reform of guardianship systems, including the latest well-publicized incidents of abuse of authority by an appointed guardian or a private guardianship agency, in locations such as Las Vegas, Nevada and New Mexico.

A published commentary by Cardozo Law's Rebekah Diller, an associate clinical professor, explains the movement behind supported-decision making as a better alternative: 

During  the last several decades, guardianship has been the subject of continual calls for reform, often spurred by revelations of guardian malfeasance and other abuses in the system. Recent developments in international human rights law and disability rights advocacy, however, pose a more fundamental challenge to the institution. Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), with its declaration that everyone, regardless of mental disability or cognitive impairment, is entitled to make decisions and have those decisions recognized under the law, offers no less than a promise to end adult guardianship as we know it.

So, what exactly is "supported decision-making?" Professor Diller explains:

 The support can take the form of accessible formats or technological assistance in communication.  Or it can take the form of "supported decision-making" arrangement, in which "supporters" assist individuals with decision-making in relationships of trust. In whatever form, the support is an appropriate accommodation that enables the individual to enjoy the right to legal capacity.

The author warns there is no single model for supported decision-making.  Ideally, the individual designates in advance his or her desired supporter, and the movement behind this approach believes this selection can be recognized even if the individual might not be found to have the requisite capacity to enter into a contract or to execute a formal power of attorney. 

In 2015, Texas became the first state in the U.S. to pass a supported decision-making statute, and the Texas statutory approach views this option as a better alternative for individuals who need assistance in making decisions about activities of daily living, but who are not considered to be "incapacitated" as that concept is defined in guardianship law.  The Texas statute contemplates an individual who can act voluntarily, in the absence of coercion or undue influence. Information about Texas' law is available here. 

In 2016, Delaware became the second state to enact legislation enabling the option of Supported Decision-Making, with Senate Bill 230.  

In 2012, the ABA Commission on Disability Rights and the ABA Commission on Law and Aging, working with U.S. government representatives, hosted a round table discussion on supported decision making for individuals with "intellectual disabilities."   The ABA captured a host of materials related to this discussion on this website.

In 2017, the ABA House of Delegates adopted a resolution on supported decision-making and endorsed its possible use as a less-restrictive alternative to guardianship, including use of this approach as grounds for termination of an existing guardianship and restoration of rights.   

Earlier this year, on February 15, 2018, the ABA hosted a webinar on "Supported Decision-Making as a Less Restrictive Alternative: What Judges Need to Know."  While the webinar appears to have been offered only as a one-time "live" option, perhaps a recording will become available in the near future.  Here's an ABA webpage providing details. 

My special thanks to Pennsylvania Elder Law Attorney Sally Schoffstall, who served as a panelist at the Dickinson Law event last week, for providing me with a copy of The Arc's information on the Texas Supported Decision-Making law, linked above. Additional thanks to Dickinson Law James Adams for photographing the conference! 

April 2, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Thursday, March 29, 2018

Penn State's Dickinson Law Hosts Pennsylvania Judges for Program on "Dementia Diagnosis and the Law"

Dickinson Law's CJE Program on Dementia Diagnosis and the LawOn Thursday, March 29, 2018 Penn State's Dickinson Law hosted a continuing judicial education program for the Pennsylvania Judiciary, with live attendance in Carlisle by more than 30 judges and with even more judges around the state participating via a live stream.  The program was "Dementia Diagnosis and the Law," organized into three parts:

Part 1:  Medical Science and Dementia

Panel Discussion and Audience Q & A

Part 2:  Legal Implications of a Diagnosis of Dementia

  • Keynote Presentation:  Clinical, Legal and Judicial Judgments of Capacity in Persons with Dementia
  • Why “Guardianship Oversight” is a Hot National (and State) Topic
    • Professor Katherine C. Pearson, Dickinson Law, Pennsylvania State University

Panel Discussion and Audience Q & A

Part 3:  Adjudication Exercises, facilitated by Professor Tiffany Jeffers, Dickinson Law, with Dickinson Law students in role plays on issues about capacity to contract, limited guardians, the roles of guardians ad litem and the potential for attorneys or judges to become affected by a neurocognitive disorder.

  • Panel Discussion and Audience Q & A

Panel Members included:

As the law school's organizer for the event, I know I learned a lot from this dynamic group of seasoned experts who spoke on the challenging legal, medical, and judicial issues that can arise from cognitive impairments associated with aging. The judges in our audiences were fully engaged, offering great comments, questions and experiences.

My special thanks to each and every one of the speakers, facilitators, judges, lawyers and students who made the program so informative.  It was fun to work with the Administrative Office of the Pennsylvania Courts on this project and we look forward to additional opportunities to collaborate in the future.  Once I catch up a little on my day job (and maybe on some missed sleep), I'll post again with some additional reactions and thoughts from this program.  

March 29, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Science | Permalink | Comments (1)

New Mexico, Where New Guardianship Laws Will Take Effect July 1, 2018, Struggles With Reporting Systems

Earlier this week, The Albuquerque Journal reported on continued problems with accountability for court-appointed guardians within New Mexico. Colleen Heild writes:

What’s become of Elizabeth Hamel? Hamel is among dozens of people placed under a legal guardianship or conservator in southern New Mexico over the past 20 years whose welfare is unknown – at least according to state district court records. . . . Nothing in the online court docket sheet indicates that Hamel’s case has been closed. But since being appointed, Advocate Services of Las Cruces hasn’t filed any annual reports about Hamel’s well-being or finances, the docket sheet shows.

 

There’s no indication as to whether she is dead or alive, or if the  guardianship/conservatorship has been revoked. . . . 

 

As New Mexico prepares for a new law, effective July 1, to help its ailing guardianship system, the state’s district courts still don’t have a uniform way to ensure guardian compliance with reporting laws that have been on the books at least since 1989.

 

State Sen. Jerry Ortiz y Pino, D-Albuquerque, said last week that he was disappointed that annual reports haven’t been filed in some cases.

 

“And I’m not surprised the courts wouldn’t know,” said Ortiz y Pino, a longtime advocate for reform. “That’s what we ran into over and over again, the lack of any kind of system to make it possible to log them (annual reports) in, let alone read them, let alone send somebody out to verify whether or not what they’re reporting is the truth. Those are the kind of things we shouldn’t be missing. Somebody should be at least saying, ‘Hey, you never did file a report.’ ”

For more, read Missing Reports Plague Guardianship System (3/25/18). 

March 29, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Monday, March 26, 2018

Maryland Courts Tackle the Challenge on Guardianship Reform

Maryland is among the several states putting serious energy into modernizing and reforming rules governing guardianships, with major new rules that took effect on January 1, 2018.  In Bifocal, the journal of the ABA Commission on Law and Aging, the Honorable Karen Murphy Jensen, who chaired a multidisciplinary workgroup tackling the state reforms, describes the process during an interview.  She notes the work ahead for many: 

Judge Jensen: These are big changes and courts, attorneys, and guardians need time to navigate them. Maryland’s circuit courts are not uniform and the changes will affect each court differently. Guardianship attorneys need to familiarize themselves with the new requirements and procedural changes. The orientation and training requirements add a step to the process that may overwhelm some prospective guardians and each individual court will have to respond to that reality. 

 

Along the way, the Workgroup consulted with and got feedback from judges, court staff, private attorneys, public agencies, and other service providers outside of the Workgroup. It was clear that the Workgroup would need to provide ongoing technical assistance and develop resources to help everyone navigate these changes once in effect. While sensitive to the impact on family guardians, we believe it is important for guardians to understand what is expected of them and know what tools are available upfront, and for courts to screen out those unable to take on the responsibility.

For more, read: Maryland Judicial Workgroup Spearheads Guardianship Reforms, Vol. 39, Issue 3, Bifocal. 

March 26, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, March 23, 2018

National Council on Disability Calls for Nationwide Reforms for Guardianships

On March 22, 2018, the National Council on Disability (NCD) released a new 200-page report and recommendations,  calling for substantial reform of the rules and processes used to place individuals with disabilities or the elderly under guardianships. 

As set forth in the press release, NCD's findings include:

  • Guardianship is often imposed when not warranted by facts or circumstances, because guardianship proceedings often operate under erroneous assumptions that people with disabilities lack capability to make autonomous decisions.
  • Capacity determinations often lack sufficient scientific or evidentiary basis.
  • Although guardianship is considered a protective measure, courts often lack adequate resources, technical infrastructure, and training to monitor guardianships effectively and hold guardians accountable, which at times allows for guardians to use their positions to financially exploit people subject to guardianships or subject them to abuse or neglect.
  • People with disabilities are often denied due process rights in guardianship proceedings. 
  • Although most state laws require consideration of less-restrictive alternatives, courts do little to enforce those requirements.
  • Similarly, though every state has a process for the restoration of one’s rights lost through guardianship, the process is rarely used.
  • There is a lack of data on existing guardianships and newly filed guardianships, which frustrates efforts of policymakers to make determinations about necessary areas for reform.

NCD also makes seven sets of specific recommendations, often calling upon the U.S. Department of Justice to take a leadership position in protecting the civil rights of individuals, including providing states with guidance and support for review of existing guardianships with a goal of assessing the potential for restoration of rights.  

Here is a link providing access to the full report, Beyond Guardianship: Toward Alternative That Promote Greater Self-Determination, and to a literature review, and to a qualitative research report summary in support of the NCD recommendations.

My special thanks to Pennsylvania Superior Court Judge Paula Ott for sending me timely information on these publications.

March 23, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, March 22, 2018

Free Webinar Protecting Elders From Scams

The National Center of Law & Elder Rights has announced their next webinar,  Legal Basics: Protecting Older Adults Against Fraudulent Schemes and Scams. The webinar is scheduled for April 10, 2018 at 2 edt.  Here's a description of the webinar:

With savings and assets accumulated over a lifetime, older adults are attractive targets for individuals promoting fraudulent schemes and scams. Scammers use deception, misrepresentation and threats to convince older adults to send money or provide personal financial information. Most frauds and scams go unreported. 

This webcast will provide an overview of the frauds and scams aimed at older adults, discuss legal protections, and provide resources to aid older adults defrauded by the individuals and business that promote these scams. The webcast will also focus on efforts by the Federal Trade Commission to prevent older adults from falling victim to these scams. 

To register for this free webinar, click here.

March 22, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Wednesday, March 21, 2018

World Elder Abuse Awareness Day is June 15, 2018

With World Elder Abuse Awareness Day just a few months away, it's time to think about any events your organization might offer.  According to the USC Center on Elder Mistreatment NCEA email, a microsite has been created  that offers suggestions, helpful hints, events and more. Want to take some kind of action? Check the information here for 13 ideas in a number of categories. Planning an event? List it there. It's never too early to start planning!  And let others know using #WEAAD.

March 21, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, International, Other, Programs/CLEs | Permalink | Comments (0)

Tuesday, March 20, 2018

Senate Committee on Aging: Top 10 Elder Scams

A little mid-week reading for you. The Senate Committee on Aging has released their 2018 Fraud Book, listing the top 10 elder scams of 2018.  Fighting Fraud: Senate Aging Committee Identifies Top 10 Scams Targeting Our Nation’s Seniors  lists the top 10 scams of the year, based on reports to the hotline, which are (drum roll please) 

IRS Impersonation Scams

Robocalls and Unsolicited Phone Calls

Sweepstakes Scams / Jamaican Lottery Scams

"Can You Hear Me?” Scams

Grandparent Scams

Computer Tech Support Scam

Romance Scams

Elder Financial Abuse

Identity Theft

Government Grant Scams

Here is the executive summary for the report:

From January 1, 2017, through December 31, 2017, the Senate Aging Committee’s Fraud Hotline received a total of 1,463 complaints from residents all across the country. Calls pertaining to the top 10 scams featured in this report accounted for more than 75 percent of the complaints.

                The top complaint, the focus of more than twice as many calls as any other scam, involves seniors who receive calls from fraudsters posing as agents of the Internal Revenue Service (IRS). These criminals falsely accuse seniors of owing back taxes and penalties in order to scam them. Due to the extremely high call volume and continued reports from constituents from across the country, the Aging Committee held a hearing on April 15, 2015, to investigate and raise awareness about the IRS imposter scam. Prior to a large law enforcement crackdown in October 2016, nearly three out of four calls to our Hotline involved the IRS impersonation scam. In the three months after the arrests, reports of the scam into the Committee’s hotline dropped by an incredible 94 percent. Though the numbers have since rebounded somewhat, they are still far below the levels we have seen in the past.

                The second most common scam reported to the Hotline involved robocalls or unwanted telephone calls. On June 10, 2015, the Aging Committee held a hearing on the increase in these calls that are made despite the national Do-Not-Call Registry. The Committee examined how the rise of new technology has made it easier for scammers to contact and deceive consumers and has rendered the Do-Not-Call registry ineffective in many ways. On October 4, 2017, the Aging Committee held an additional hearing on robocalls, this time examining recent developments by both the private and public sectors to combat robocalls and protect seniors from fraud.

Sweepstakes scams, such as the Jamaican lottery scam, continue to be a problem for seniors, placing third on the list. A March 13, 2013, Aging Committee hearing and investigation helped bring attention to these scams and put pressure on the Jamaican government to pass laws cracking down on criminals who convinced unwitting American victims that they had been winners of the Jamaican lottery. The United States government has had some recent success in bringing individuals connected to the Jamaican lottery scam to trial, but these types of scams continue to plague seniors.

A new scam to make the top 10 list for 2017 involves consumers receiving calls in which the caller would simply ask “Are you there?” or “Can you hear me?” in order to prompt the recipient to say “yes.” According to the Federal Trade Commission (FTC), these illegal robocalls are pre-recorded, and are

designed to identify numbers that consumers are likely to answer, allowing scammers to better identify and connect with potential victims. The increased use of this tactic by scammers in robocalls last year demonstrates how sophisticated scammers are.

Grandparent scams, the focus of a July 16, 2014, Aging Committee hearing, were next on the list. In these scams, fraudsters call a senior pretending to be a family member, often a grandchild, and claim to be in urgent need or money to cover an emergency, medical care, or a legal problem.

Computer scams were sixth on the list and the subject of an October 21, 2015, Committee hearing. Although there are many variations of computer scams, fraudsters typically claim to represent a well-known technology company and attempt to convince victims to provide them with access to their computers. Scammers often demand that victims pay for bogus tech support services through a wire transfer, or, worse yet, obtain victims’ passwords and gain access to financial accounts.

Romance scams were seventh on the list. These calls are from scammers who typically create a fake online dating profile to attract victims. Once a scammer has gained a victim’s trust over weeks, months, or even years – the scammer requests money to pay for an unexpected bill, an emergency, or another alleged expense or to come visit the victim – a trip that will never occur.

Elder financial abuse was eighth on the list and the topic of a February 4, 2015, Committee hearing. The calls focused on the illegal or improper use of an older adult’s funds, property, or assets. Chairman Susan M. Collins, former Ranking Member Claire McCaskill, and current Ranking Member Robert P. Casey Jr. have introduced the Senior $afe Act, which would allow trained financial services employees to report suspected cases of financial exploitation to the proper authorities without concern that they would be sued for doing so. The Committee also examined the financial abuse of guardians and other court appointed fiduciaries at a hearing in November 2016.

Identify theft was the ninth most reported consumer complaint to the Fraud Hotline in 2017. This wide-ranging category includes calls about actual theft of a wallet or mail, online impersonation, or other illegal efforts to obtain a person’s identifiable information. On October 7, 2015, the Aging Committee held a hearing titled “Ringing Off the Hook: Examining the Proliferation of Unwanted Calls”, to assess the federal government’s progress in complying with a new law requiring the removal of seniors’ Social Security numbers from their Medicare cards, which will help prevent identity theft. Medicare will start mailing the new cards in April 2018.

            Government grant scams rounded out the top 10 scams to the Fraud Hotline last year. In these scams, thieves call victims and pretend to be from a fictitious “Government Grants Department.” The con artists then tell the victims that they must pay a fee before receiving the grant.

The report is available here.

From January 1, 2017, through December 31, 2017, the Senate Aging Committee’s Fraud Hotline received a total of 1,463 complaints from residents all across the country. Calls pertaining to the top 10 scams featured in this report accounted for more than 75 percent of the complaints.

                The top complaint, the focus of more than twice as many calls as any other scam, involves seniors who receive calls from fraudsters posing as agents of the Internal Revenue Service (IRS). These criminals falsely accuse seniors of owing back taxes and penalties in order to scam them. Due to the extremely high call volume and continued reports from constituents from across the country, the Aging Committee held a hearing on April 15, 2015, to investigate and raise awareness about the IRS imposter scam. Prior to a large law enforcement crackdown in October 2016, nearly three out of four calls to our Hotline involved the IRS impersonation scam. In the three months after the arrests, reports of the scam into the Committee’s hotline dropped by an incredible 94 percent. Though the numbers have since rebounded somewhat, they are still far below the levels we have seen in the past.

                The second most common scam reported to the Hotline involved robocalls or unwanted telephone calls. On June 10, 2015, the Aging Committee held a hearing on the increase in these calls that are made despite the national Do-Not-Call Registry. The Committee examined how the rise of new technology has made it easier for scammers to contact and deceive consumers and has rendered the Do-Not-Call registry ineffective in many ways. On October 4, 2017, the Aging Committee held an additional hearing on robocalls, this time examining recent developments by both the private and public sectors to combat robocalls and protect seniors from fraud.

Sweepstakes scams, such as the Jamaican lottery scam, continue to be a problem for seniors, placing third on the list. A March 13, 2013, Aging Committee hearing and investigation helped bring attention to these scams and put pressure on the Jamaican government to pass laws cracking down on criminals who convinced unwitting American victims that they had been winners of the Jamaican lottery. The United States government has had some recent success in bringing individuals connected to the Jamaican lottery scam to trial, but these types of scams continue to plague seniors.

A new scam to make the top 10 list for 2017 involves consumers receiving calls in which the caller would simply ask “Are you there?” or “Can you hear me?” in order to prompt the recipient to say “yes.” According to the Federal Trade Commission (FTC), these illegal robocalls are pre-recorded, and are

designed to identify numbers that consumers are likely to answer, allowing scammers to better identify and connect with potential victims. The increased use of this tactic by scammers in robocalls last year demonstrates how sophisticated scammers are.

Grandparent scams, the focus of a July 16, 2014, Aging Committee hearing, were next on the list. In these scams, fraudsters call a senior pretending to be a family member, often a grandchild, and claim to be in urgent need or money to cover an emergency, medical care, or a legal problem.

Computer scams were sixth on the list and the subject of an October 21, 2015, Committee hearing. Although there are many variations of computer scams, fraudsters typically claim to represent a well-known technology company and attempt to convince victims to provide them with access to their computers. Scammers often demand that victims pay for bogus tech support services through a wire transfer, or, worse yet, obtain victims’ passwords and gain access to financial accounts.

Romance scams were seventh on the list. These calls are from scammers who typically create a fake online dating profile to attract victims. Once a scammer has gained a victim’s trust over weeks, months, or even years – the scammer requests money to pay for an unexpected bill, an emergency, or another alleged expense or to come visit the victim – a trip that will never occur.

Elder financial abuse was eighth on the list and the topic of a February 4, 2015, Committee hearing. The calls focused on the illegal or improper use of an older adult’s funds, property, or assets. Chairman Susan M. Collins, former Ranking Member Claire McCaskill, and current Ranking Member Robert P. Casey Jr. have introduced the Senior $afe Act, which would allow trained financial services employees to report suspected cases of financial exploitation to the proper authorities without concern that they would be sued for doing so. The Committee also examined the financial abuse of guardians and other court appointed fiduciaries at a hearing in November 2016.

Identify theft was the ninth most reported consumer complaint to the Fraud Hotline in 2017. This wide-ranging category includes calls about actual theft of a wallet or mail, online impersonation, or other illegal efforts to obtain a person’s identifiable information. On October 7, 2015, the Aging Committee held a hearing titled “Ringing Off the Hook: Examining the Proliferation of Unwanted Calls”, to assess the federal government’s progress in complying with a new law requiring the removal of seniors’ Social Security numbers from their Medicare cards, which will help prevent identity theft. Medicare will start mailing the new cards in April 2018.

            Government grant scams rounded out the top 10 scams to the Fraud Hotline last year. In these scams, thieves call victims and pretend to be from a fictitious “Government Grants Department.” The con artists then tell the victims that they must pay a fee before receiving the grant.

rant.

TThe 60 page report is available here.

March 20, 2018 in Books, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink

Thursday, March 8, 2018

The Toughest Issue for Protective Service Agencies? Self Neglect...

Boy, did this New York Times piece by always interesting Paula Span resonate for me.  I spent several years serving as designated counsel for individuals who were facing unwanted intervention by Adult Protective Services. The issue of self-neglect is just plain tough -- and it doesn't get any easier with age.  From the article:

[T]he state adult protective services agency sent a caseworker to the man’s home. She found an 86-year-old Vietnam veteran in a dirty, cluttered house full of empty liquor bottles. His legs swollen by chronic cellulitis, he could barely walk, so he used a scooter. He missed doctor’s appointments. He had the medications he needed for cellulitis and diabetes, but didn’t take them. Though he had a functioning toilet, he preferred to urinate into plastic gallon jugs. He didn’t clean up after his dogs. He wasn’t eating well. . . . 

 

In the Texan’s case, “he wasn’t happy that A.P.S. was there, and he denied that he was being exploited,” said Raymond Kirsch, an agency investigator who became involved. “He also denied that he had a drinking problem.”

 

Grudgingly, he allowed the agency to set up a thorough housecleaning, to start sending a home care aide and to arrange for Meals on Wheels.

 

But on a follow-up visit a month later, the caseworker found her client markedly deteriorated. His swollen legs now oozed. He’d become personally filthy and was ranting incoherently. She returned with an ambulance and a doctor who determined that the client lacked the capacity to make medical decisions.

 

Off he went to a San Antonio hospital, under an emergency court order. The caseworker locked up the house and kenneled the dogs. . . . 

Our special thanks to University of Illinois Law's Professor Dick Kaplan for pointing us to this article.  For the outcome of this particular case, read to the end of the full article, Elder Abuse: Sometimes It's Self-Inflicted.

March 8, 2018 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, March 7, 2018

Family Fights Over Care for Mom:Subject of Academy Award

We all know that family dynamics are not always the most pleasant and can lead to strife, stress and litigation. Kaiser Health News ran a recent story that details a conflict within a family. A Tale of Love, Family Conflict And Battles Over Care For An Aging Mother focuses on the story “'Edith + Eddie,' a short documentary vying for an Academy Award Sunday,[which] is a gripping look at a couple in their 90s caught up in an intense family conflict over caring for an aging parent." The short film starts a few months after the couples' marriage and ends (spoiler alert) "months later with the couple being separated by Edith’s court-appointed legal guardian, with police on the scene, and Edith taken off abruptly to Florida. Shockingly, Eddie died only a few weeks later." Interwoven with the love story are allegations within Edith's family of fighting siblings, guardianship and financial concerns.

The movie is focused on the love story. The columnist took a broader approach, diving into the family dynamics, finding "[t]hree daughters in distress over the care of an aged mother and roiled by disputes played out in courtrooms among far-flung siblings." Eventually two of the three daughters were named co-guardians , but even so, the road was bumpy; "the sisters for years had bickered over what was best for their mother."  The marriage occurred after the guardianship was established, so the question of the validity of the marriage was also at play here.  The co-guardians didn't work well together. One wouldn't consult the other and moved her mother frequently without telling the other family members of the mother's location. Finally a non-relative guardian was appointed, but even she wasn't able too keep track of the mother's location.  The guardian wanted Edith to go to Florida for a bit so the guardian could find an appropriate ALF for her.  After more hurdles, Edith finally went to Florida where her health slowly began to improve.

The story ends with this "Edith passed away last March of natural causes at the age of 98, after living with her daughter in Florida through the end of her life. She never went to an institution. Her home wasn’t sold until after her death; there was no attempt to plunder her estate by lawyers or family members. That’s the other story of Edith+Eddie."

Watch the film. Read the article.  Lots of class discussion could come out of this.

March 7, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Film, Health Care/Long Term Care | Permalink | Comments (0)

Monday, March 5, 2018

News Feature Focuses on Court-Appointed Guardian in Pennsylvania, Raising Important Systemic Questions

From Nicole Brambila, an investigative journalist for the Reading [Pennsylvania] Eagle, comes an article examining the history of a specific individual appointed by courts to serve as a guardian in multiple cases, in different counties in Pennsylvania.  The article raises important questions about court oversight, including but not limited to whether there should be mandatory criminal background checks for those serving as court-appointed fiduciaries:  

If [an elderly couple in Montgomery County, Pennsylvania] were astonished to learn the court-appointed guardian [for the 79-year-old husband] had not been paying the mortgage and other bills, their surprise would pale in comparison to the revelations yet to come.  Unbeknownst to them, Byars [the guardian in question] had been convicted multiple times of financial theft.

 

Her most recent arrest came in 2005.  She pleaded guilty to felony fraud and was sentenced to 37 months in a federal prison after cashing $20,000 in blank checks [she] found while rummaging through trash cans at a Virginia post office. 

The article points to another case in Philadelphia Orphans Court, where an attorney representing family members of a different person alleged to be in need of a guardian, looked into the background of Byars, and discovered records detailing her history.  The attorney was successful in having her removed as the court-appointed guardian in that case.  The Reading Eagle reporter writes:

For six months she continued serving as guardian to 52 incapacitated Philadelphians. No other Philadelphia judge removed her until after the Reading Eagle made dozens of inquiries in January with the court, Adult Protective Services, the Pennsylvania Department of Aging and state lawmakers about her appointments. . . . 

 

Philadelphia Orphans Court works with more than a dozen professional guardians. Ten of these, including Byars, carry some of the highest caseloads: 22, 48, 54 and more. But none more than Byars, who was appointed in Philadelphia alone 75 times from 2014 through 2016, according to court dockets.

For more, read Unguarded: Montgomery County Couple's Trust Betrayed, published March 4, 2018 in the Reading Eagle [paywall protected, although there is a $1 fee for single day access].  

 

March 5, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1)

Monday, February 26, 2018

PA Appellate Court Rules Against Elder Care Planning Company Suing Elder Law Attorney for Defamation

In a "nonprecedential memorandum" -- but still interesting opinion -- filed on February 14, 2018, the Pennsylvania Superior Court affirmed summary judgment in favor of defendants on an issue of defamation. The plaintiff is a retirement or planning company and the defendants are a law firm and an elder law specialist attorney in that firm.  The plaintiff alleged defamation and intentional interference with business relationships via letters on the law firm's letterhead that were signed by the defendant Attorney while serving on a county senior citizens board. 

The letters allegedly pointed to certain marketing presentations from companies that present programs on living trusts and estate planning, referencing plaintiff as "one such company." According to the court opinion, the "correspondence characterized the presentations as a 'sinister form of financial exploitation of the elderly' that 'often result in seniors losing thousands of dollars in unnecessary fees for documents they do not need,' and that 'can also result in the sale of investments that are not appropriate for seniors.'”   

The plaintiff Company's lawsuit was filed in January 2008.

The defendants sought summary judgment on the defamation count in October 2016.  

Under Pennsylvania statutory law, 42 Pa. C.S.A. Section 8343(a)(6), a plaintiff has the burden of proving specific elements of defamation including "special harm resulting to the plaintiff from . . . publication" of the alleged defamatory communication.  The defendants argued the plaintiff was unable to satisfy that element.

In the memorandum opinion, the Superior Court concluded:

Appellant incorrectly maintains that it did not have to prove the existence of any harm because the letter in question accused it of engaging in misconduct or fraud in marketing living trusts to senior citizens. While it did not have to establish economic loss, it did have to adduce some proof that its business reputation was affected by the communication. Appellant admitted to the trial court that it could present no witness to attest that its reputation in the community was harmed due to the dissemination of the correspondence in question. Since Appellant had the burden of proving that aspect of its defamation cause of action, summary judgment was properly entered herein.

For more, read the nonprecedential opinion in United Senior Advisors Group, Inc., v. Leisawitz Heller Abromowitch, Phillips., PC., and William R. Blumer.  The final footnote in the opinion suggests the summary judgment ruling resolves only the defamation count in this long running suit.  

February 26, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, February 25, 2018

Australia's 5th Annual National Elder Abuse Conference

I had the honor of attending and speaking at Australia's 5th Annual National Elder Abuse Conference, held recently in Sydney.  Speakers at the two day conference included many government dignitaries,  a series of concurrent sessions and a number of abstract presentations.  The conference offered a multi-disciplinary, multi-cultural focus and included a wide-range of topics over the conference.   I found the energy level and interest at this conference to be high.  I moderated a panel of law enforcement and community activists and their efforts are outstanding. One of the interesting points to me was that the problems they're facing here are so similar to those in the US.  Exchanging information about prevention and responses was very useful. Post-conference information about recordings of the  sessions will be available soon on the conference website.  This is a conference well worth attending, even though Australia is a bit of a trek from the US.  The conference rotates locations within Australia, so the website will also have information about dates and locations for the 2019 conference.

February 25, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, International, Programs/CLEs | Permalink

Md Court of Appeals Permits AG's "Improper Discharge" Suits Against Nursing Homes

As we've highlighted in recent posts on this blog, discharge or eviction of residents by nursing homes  -- also known as "patient dumping" -- is a hot topic right now, and the latest important news is from the highest tribunal in the State of Maryland, the Court of Appeals.  The Court tackles head-on the issue of who has the power to take action to address improper discharges.   

On February 20, 2018, the Maryland Court of Appeals concluded that as a matter of first impression, the Maryland Attorney General has the authority to bring suit on behalf of "multiple facility residents for unlawful discharge."  Further, the AG is permitted to seek injunctive relief to require a facility to assist residents receiving Medicaid benefits. 

In so ruling, the Court relied on specific provisions of Maryland's statutory Patient Bill of Rights (rather than similar federal law) enacted in the mid 1990s, saying the legislation demonstrated the General Assembly's clear "intent to limit involuntary discharges and transfers and to ensure that when they do occur, they are subject to procedural controls ensuring  a resident's health and safety." The Court did, however, look to federal precedent for authority to grant specific injunctive relief.

The Court rejected arguments by the challenging party, Neiswanger Management Services LLC, that operated 4 nursing facilities in Maryland.  The company claimed its signing of a Memorandum of Understanding with state authorities rendered moot all issues it had with the state.  As part of its ruling, the Court reviewed the history of State violations alleged against Neiswanger, including the State's assertion that during one 17-month period, Neiswanger had issued involuntary discharge notices to "at least 1,601 residents," in contrast to only 510 such notices issued during the same period of time by all of Maryland's other 225 licensed nursing facilities. The Court concluded, "Neiswanger has not met its burden of demonstrating to this Court that the case is moot."

There is a lot of meat to the ruling by the Maryland Court of Appeals, especially with respect to the impact of low reimbursement rates under Medicaid, as compared to Medicare's 100 days of coverage. For the full ruling, see  State of Maryland v. Neiswanger Management Services LLC.

For the AG's own description of the ruling, see the Maryland AG Press Release on February 21, 2018.

See also the recent Business Section article from the New York Times, How to Challenge a Nursing Home Eviction Notice and Other Tips.  

February 25, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, February 23, 2018

NYT: Focus is on Nursing Home Evictions and the Reality of Underfunding of Long-Term Care

The New York Times offers an important feature article, entitled Complaints About Nursing Home Evictions, and Regulators Take Note.  From the opening paragraphs:

Six weeks after Deborah Zwaschka-Blansfield had the lower half of her left leg amputated, she received some news from the nursing home where she was recovering: Her insurance would no longer pay, and it was time to move on.

 

The home wanted to release her to a homeless shelter or pay for a week in a motel.“That is not safe for me,” said Ms. Zwaschka-Blansfield, 59, who cannot walk and had hoped to stay in the home, north of Sacramento, until she could do more things for herself — like getting up if she fell.

 

Her experience is becoming increasingly common among the 1.4 million nursing home residents across the country. Discharges and evictions have been the top-ranking category of grievances brought to state long-term care ombudsman programs, the ombudsman agencies say.

This article is definitely worth a careful read.    

February 23, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, February 22, 2018

Federal Authorities Coordinate Filing of Charges Against Individuals and Companies on Telemarketing and Postal Mail Fraud Schemes

On Thursday, February 22, 2018, federal authorities released news of formal charges filed against individuals and companies accused of telemarketing and postal fraud schemes targeting seniors.  The charges focus on more than 250 defendants, located both in and outside of the U.S.

The Federal Trade Commission's press release provides specific details from two cases filed in coordination with authorities in the State of Missouri.  In the first case:

[T]he FTC and the State of Missouri charged two men and their sweepstakes operation with bilking tens of millions of dollars from people throughout the United States and other countries.

 

The FTC and Missouri allege that the defendants, doing business under dozens of different names, sent tens of millions of personalized mailers falsely indicating that the recipient had won or was likely to win a substantial cash prize, as much as $2 million, in exchange for a fee ranging from $9 to $139.99.

 The Defendants distributed three types of phony mailers:        

  • Notices such as “Congratulations, You Have Just Won $1,230,946.00,” when the consumer hasn’t actually won anything;
  • Fliers that claim the recipient can win a substantial cash prize by answering a simple arithmetic question and paying  a registration fee, but that don’t disclose that there are multiple rounds to the “game of skill,” that the consumer will have to pay additional fees to advance to each round, and that in order to win, the consumer will have to answer a final, complex puzzle that few people, if any, can solve; and
  • Mailers that appear to be notices that the consumer has won a prize of $1 million or more, but that are really just newsletter subscription solicitations.

In the second case: 

[T]he FTC alleges that the defendants worked with Indian telemarketers to trick older Americans into buying bogus technical support services. Specifically, the defendants set up business accounts for the telemarketers, collected and deposited consumer payments, and provided a gloss of legitimacy to the scheme.

During my sabbatical last year, I often had occasion to answer the phone in my elderly mother's home. The majority of calls were from scammers, including those posing as the IRS, those offering "specialized health insurance," or seeking to "confirm" the homeowners' bank numbers for deposit of some kind of "winnings."  I was stunned by the volume of the calls -- and the persistence of the callers. If you tried to hang up, the callers would often ring back within seconds.  

Also, during my time as director of  Dickinson Law's Elder Protection Clinic, I can remember one particularly troublesome case involving a so-called Jamaican lottery scam, where the senior in question had been a sophisticated investor for her entire adult life, but was unable to resist the siren song of a scammer who managed to convince her to repeatedly send him money.  It was one of my first personal experiences with how dementia and financial abuse can intersect, through a particular form of early onset dementia known as FTD (frontotemporal disease).  The impairment often impacts judgment and the ability to evaluate risk, including financial risk.  

February 22, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0)